In- 
 A"' 
 
 
 
6051 
 UJ/'fA 
 
Cornell University Library 
 KFN5057.W142 
 
 A digest of New Yorl< reports, from 1872 1 
 
 3 1924 017 627 492 
 
The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017627492 
 
A. DiaEST "^ 
 
 tVc tj^^^ ^ ^^^y^ 
 
 
 : ( 
 
 NEW TOEK REPOETS, 
 
 FEOM 1872 TO 1876; 
 
 COHiTTAimNG THE DECISIONS OF ALL THE 
 COUKTS OF THE STATE, PUBLISHED 
 DYEING* THAT PEEIOD, \. 
 
 \ 
 
 WITH REFERENCES TO THE STATUTES. i 
 
 BEINQ THE SECOND SUPPLEMENT TO 
 
 CLINTON & WAIT'S DIGEST OF NEW YORK REPORTS. 
 
 VOLUME Y. 
 
 BY WILLIAM J\r AIT, 
 
 corarsBLon at law. . 
 
 ALBANY: 
 WILLIAM GOULD & SON, 
 
 LAW BOOKSBLLBRS AND FUBLI8EEBB. 
 1877. 
 
Entered, ai 
 
 j-to the Act of Congress, in the year one thousand eight hundred and seventy-seven, 
 BT WILLIAM GOULD & SON, 
 In the office of the Librarian of Congress, at Washington. 
 
 WEED, PABSONS AND OOMPAmf, 
 
 PBIHTEBS AND STEREOTYPBRS, 
 
 ALBAHT, N. Y. 
 
PREFACE. 
 
 The present volume is a digest of the cases reported since the previous 
 supplement was published ; and is merely performing the promise made 
 to the profession that the decisions would be fully and carefully digested, 
 and a supplement issued as often as required. The preparation of the 
 matter of the volume was intrusted to James Simmons, Esq., who has 
 again faithfully performed his part of the work. 
 
 A comparison of the abstracts here furnished, with those found in any 
 other New York Digest, is all that is desired by the publishers, as a test of 
 the value of the work. The original plan of the work, to make it a substi- 
 tute for the reports, has been carefully adhered to. The following reports 
 are included in this volume : 
 
 Abbott's Practice Keports, vols. 10 to 15 ; Barbour's Sup. Ct. Reports, 
 vols. 59 to 65 ; Daly's Oonimon Pleas Reports, vols. 3 and 4 ; Howard's 
 Practice Reports, vols. 41 to 49 ; Hun's Sup. Court Reports, vols. 1 to 5 ; 
 Lansing's Sup. Court Reports, vols. 4 to Y; Sweeny's Superior Court Re- 
 ports, vol. 2 ; New York Superior Court Reports (Jones and Spencer), vols. 
 33 to 39; and New York Court of Appeals Reports, vols. 43 to 60, inclu- 
 sive, being in all fifty-nine volumes. 
 
 It will be seen that the cases here given are later than those furnished by 
 any other similar work, and that the cases are carefully digested in full 
 instead of being a mere Tyrief i/tidex or hint as to the points decided and 
 reported. 
 
 A table of New York cases, criticised, in the digested volumes, has been 
 inserted, and will be found very convenient and useful. 
 
 Other supplemental volumes will be issued whenever the number of 
 reports may require it to be done. 
 
 W. W. 
 
 Albany, Janua/ry 1,'187Y. 
 
CASES CRITICISED. 
 
 A TABLE OF CASES AFFIRMED, APPROVED, DOUBTED, DISAPPROVED, 
 EXPLAINED, OVERRULED OR REVERSED BY DECISIONS DIGESTED 
 IN THIS VOLUME. 
 
 Ahbe V. Allen, 39 How., 481 ; Affirmed, 52 N. T., 
 636. 
 
 Abbott V. Draper, 4 Denio, 51. Contract to pay 
 in land. Followed, Campbell y. Campbell, 65 
 Barb., 639. 
 
 Abell V. Van Gelder, 36 N. Y., 513. Declarations 
 as to boundary. Followed, Smith v. McNa- 
 mara, 4 Lang., 169. Estoppel. Followed, 
 Finnegan v. Caraher, 61 Barb., 252. 
 
 Acer V. Westcott, 1 Lans., 93. Eevised, 46 N. Y., 
 884. 
 
 Ackerman v. Ackerman, 14 Abb., 229. Lien of 
 Attorney. Approved, Bishop y. Garcia, 14 
 Abb. N. S., 69. 
 
 y. Finch, 15 Wend., 652. Admission of 
 
 authority to appear. Followed, Sperry y. 
 Beynolds, 5 Lans., 407. 
 
 Ackky V. Boskins, 14 Johns., 374. Contracts, 
 mutuality. Distinguished, Simonson y. Kis- 
 tick, 4 Daly, 143. 
 
 T. Tarbox, 81 N. Y., 564. Amendment. 
 
 Followed, Lapham v. Sice, 55 id., 472. 
 
 Adams y. Curtis, 4 Lans., 164. Rights of mar- 
 ried women. Criticised, Perkins v. Perkins, 7 
 Lans., 19; 62 Barb., 53L 
 
 V. Farmer, 1 E. D. Smith, 688. Power of 
 
 harbormasters. Disapproved, i?be/i v. Sea- 
 man, 46 How. 24; 38 N. Y. Supr., 62. 
 
 • T. Holley, 12 How., 326. Pleading. Dis- 
 
 tinguished, Roediger y. Simmons, 14 Abb. N. 
 S., 256. 
 
 T. Bopkins, 5 Johns., 252. Attorney's 
 
 liability. Followed, Campbell y. Cothran, 56 
 N. Y., 279. 
 
 . V. Mills, 88 N. Y. Supr., 16. Affirmed, 60 
 
 N. Y., 633. 
 
 v. Bockwell, 16 Wend., 285. Practical 
 
 location. Followed, Miner v. Mayor, etc., 37 
 N. Y. Supr., 171. 
 
 Adriance y. McCafferty, 2 Bob., 153. Assess- 
 ment in New York City. Distinguished, Inre 
 Smith, 65 Barb., 283. Condition in statute. Dis- 
 tinguished, Stevenson y. McCafferty, 1 Hun, 51. 
 
 Adsit V. Brady, 4 Hill, 630. Negligence. Dis- 
 tinguished, Day V. Grossman, 1 Hun, 570. 
 
 ^tna Ins. Co. v. Wheeler, 5 Lans., 480. 
 Affirmed, 49 N. Y., 616. Carriers' liability. 
 Followed, Edsall y. Camden and Amboy R. R. 
 and Trans. Co., 50 N. Y., 661. 
 
 Agate v. Lowenbeim, 4 Daly, 262. Reversed, 
 57 N. Y., 604. 
 
 Agawan Bank y. Egerton, 10 Bosw., 669. Plead- 
 ing. Approved, Commonwealth Bank of Phila- 
 delphia V. Pryor, 11 Abb. N. S., 227. 
 
 V. Strever, 18 N. Y, 502. Parol evi- 
 dence. Approved, Goodrich y. Stevens, 5 
 Lans., 230. 
 
 Ahern v. National Steamship Co., 8 Abb. N. S., 
 283. Reversed, 11 id., 356 ; 3 Daly, 399. 
 
 Ainsley y. Mead, 3 Lans., 116. Action against 
 married woman. Approved, Foster v. Conger, 
 42How., 176;61Barb., 145. 
 
 Albany and Northern Railway Co. y. Brownell, 24 
 N. X., 345. Compensation for road crossing 
 B. R. track. Followed, Boston gr Albany R. 
 R. Co. V. Prest., etc. of Greenbush, 52 N. Y., 510. 
 
 Albany Dutch Church v. Vedder, 14 Wend., 169. 
 Surety when exonerated. Followed, Atlantic 
 and Pac. Tel. Co. v. Barnes, 39 N. Y. Sup., 40. 
 
 Albert v. Bleecker St. R. R. Co., 2 Daly, 389. 
 Damages. Approved, Clinton y. Townsend, 46 
 How., 42. 
 
11 
 
 CASES CRITICISED. 
 
 Alcock V. Giberton, 5 Duer, 76. Contract. Fol- 
 lowed, Arnot V. Pittston Jf" Elmira Coal Co., 
 2 Hun, 593. 
 
 Alden V. Clark, 11 How., 209. Execution, 
 leave to issue. Followed, Marine Bank of 
 Chicago v. Van Brunt, 61 Barb., 361. 
 
 Aldm V. N. Y. Central R. R. Co., 26 N. Y., 102. 
 Carriers' liability. Approved, Caldwell v. N. 
 J. Steamboat Co., 47 N. Y., 282; Limited, Mc- 
 Padden v. N. Y. Central R. R. Co., 44 id., 478. 
 
 Aldrich v. Reynolds, 1 Barb. Ch., 613. Damages 
 on injunction. Distinguislied, Hovey v. Rub- 
 ber Tip Pencil Co., 12 Abb. N. S., 360 ; 35 
 N. Y. Supr., 81. 
 
 Alexander v. Bennett, 38 N. Y. Supr>, 492 ; Re- 
 versed, 60 N. Y., 204. 
 
 V. Hard, 42 How., 132. Coats. Fol- 
 lowed, Lultgor V. Walters, 64 Barb., 417. 
 
 Alexandre v. Sun Mut. Ins. Co., 49 Barb., 475 ; 
 Eeveraed, 51 N. Y., 253. 
 
 Allaire v. Whitney, 1 Hill, 484. Action for fraud. 
 Approved, Northrop v. Hill, 57 N. Y., 351. 
 
 Allen V. Aguirre, 7 N. Y., 543. Contract, valid- 
 ity. Distinguished, Z)ou; V. PFay, 64 Barb., 255. 
 
 V. Brown, 51 Barb., 86 ; Affirmed, 44 N. 
 
 Y., 228. 
 
 V. Fourth National Bank, 37 N. Y. Supr., 
 
 137 ; Affirmed, 59 N. Y., 12. 4 
 
 V. Mayor, etc., 4 E. D. Smith, 404. Action 
 
 for money paid by mistalse. Followed, Mayer 
 V. The Mayor, etc., 2 Hun, 306. 
 
 V. Patterson, 7 N. Y.,_ 476. Pleading, 
 
 Distinguished, Roediger v. Simmons, 14 Abb. 
 N. S., 256. 
 
 V. Suydam, 20 Wend., 321. Evidence 
 
 Distinguished, Morange v. Mix, 44 N. Y., 31,5. 
 
 Allerton v. Belden, 3 Lans., 492; Reversed, 49 
 N. Y., 373. 
 
 V. ,49 N. Y., 373. Equity juris- 
 diction. Followed, Hoffman v. Treadwdl, 39 
 N. Y. Supr., 183. 
 
 Allis V. Read, 45 N. Y., 142. Statute of Frauds. 
 Explained, Hunter r. Wetsell, 57 N. Y., 376. 
 
 Althorp V. Wolfe, 22 N. Y., 355. Injury by acci- 
 dent. Distinguished, Losee v. Saratoga Paper 
 Co., 42 How., 385. 
 
 American Ins. Co. v. Bryan, 26 Wend., 578. 
 Barratry. Approved, Atkinson v. Great West- 
 em Ins. Co., 4 Daly, 1. 
 
 V. Oakley, 9 Paige, 269. Setting aside sale. 
 
 Approved, itellogg v. Howell, 62 Barb., 280. 
 
 American Life Ins. and Trust Co. v. Van Epps, 
 14 Abb. N. S., 253; Reversed, 56 N. Y., 601. 
 
 Amoskeag Manufacturing Co. v. Spear, 2 Sandf., 
 699. Trademark. Followed, (iodillot v. Haz- 
 ard, 49 How., 5. 
 
 Amshey v. Hinds, 46 Barb., 622 ; Affirmed, 48 
 N. Y., 67. 
 
 Anderson v. Rome, Wat. ^ Ogd. R. R. Co., 54 
 N. Y., 334. Admission of evidence. Dis- 
 tinguished, Water Commissioners of Detroit v. 
 Burr, 66 N. Y., 665. 
 
 T. Sherwood, 56 Barb., 66. Contract, 
 
 performance. Followed, White v. Talmadge, 
 85 N. Y. Supr., 218. 
 
 Andrews v. Durant, 18 N. Y., 496. Interest as 
 damages. Approved, WeMe v. Butler, 43 
 How., 6 ; 12 Abb. N. S., 139. 
 
 V. Glenville Woollen Go., 60 N. Y., 282. 
 
 Damages on injunction. Approved, McDonald 
 
 ■V. James, 47 How., 474 ; Distinguished, Hovey 
 V. Rubber Tip Pencil Co., 50 N. Y., 338 ; Dis- 
 brow V. Garcia, 52 id., 654. 
 
 11 Abb. N. S., 78. Receiver. 
 
 Approved, Holbrook v. Orgler, 49 How., 2fi9. 
 v. Rowan, 28 How., 126. Receiver, title 
 
 of. Followed, Finnin v. Malloy, 33 N. Y.Supr., 
 
 382. 
 Ann Street Church, In re, 23 How., 285. Religious 
 
 corporation. Approved, Madison Ave. Bapt. 
 
 Ch. v. Bapt. Ch. in Oliver St., 11 Abb. N. S., 
 
 132 ; 46 N. Y., 131. 
 Ansonia Brass, etc. Co. v. New Lamp Chimney Co.,, 
 
 64 Barb., 438; Affirmed, 53 N. Y., 123. 
 Argall v. Bryant, 1 Sandf., 98. Limitation of ac- 
 tions. Distinguished, Ludlow v. Hudson Riv. 
 
 R.R. Co., 6 Lans., 128. 
 Argus Company v. Mayor, etc. of Albany, 7 Lans. 
 
 264. Affirmed, 65 N. Y., 495. 
 
 Arnold v. Hudson Riv. R. R. Co., 49 Barb., 108. 
 Compensation for indirect injury. Approved, 
 SweU V. City of Troy, 12 Abb. N. S., 100 ; 62 
 Barb., 630. 
 
 Arrietta v. Morrissey, 1 Abb. N. S., 439. Plead- 
 ing. Distinguished, Roediger y. Simmons, 14 
 Abb. N. S., 266. 
 
 Artcher v. Douglass, 5 Den., 509. Parol evidence. 
 Distinguished, Campbell v. Tate, 7 Lans., 370. 
 
 Arthur V. Arthur, 10 Barb., 9. Reforming deed. 
 Distinguished, O'Donnell v. Harmon, 3 Daly, 
 424. 
 
 Aspinwall v. Sacchi, 1 Lans., 381. Affirmed, 67 
 N. Y., 331. 
 
 AstoT, in re, 50 N. Y., 363. Constitutional law. 
 Approved, Sullivan v. Mayor, etc. of New 
 York, 47 How., 491; 63 N. Y., 662. Assess- 
 ments. Distinguished, In matter of Anderson, 
 60 N. Y., 457. 
 
 Atkins V. Elwell, 45 N. Y., 760. False representa- 
 tions. Criticised. Livingstone v. Keech, 34 If. Y. 
 Supr., 647. 
 
 Atlantic Dock Co. v. Leavitt, 50 Barb., 135. Af- 
 firmed, 54 N. Y., 85. 
 
 Atlantic National Bank v. Franklin, 64 Barb., 449. 
 Reversed, 66 N. Y., 235. 
 
 Attorney- General V. Bank of Chenango, 1 Hopk. 
 Cli., 698. Corporations, control of court Ex- 
 plained, Fisher v. World Mutual Life Ins. Co., 
 47 How., 461. 
 
 v. Uiica Ins. Co., 2 John. Ch., 371. At- 
 torney-General, action by. Distinguished. 
 People V. Tweed, 13 Abb. N. S., 25. 
 
 Atwater v. Atwater, 36 How., 431 ; 58 Barb., 621. 
 Divorce. Followed, Davis v. Davis, 1 Hun, 
 444. 
 
 Audobon v. Excelsior Ins. Co,, 27 N. Y., 222. Parol 
 insurance. Followed, Pratt v. N. Y. Cent. Ins. 
 Co., 64 Barb., 589. 
 
 Austin V. Dye, 46 N. Y., 500. Conditional sale. 
 Followed, Powell y, Preston, 1 Hun, 518. 
 
 v. Goodrich, 49 N. Y., 266. Determination 
 
 of claims to real property. Followed, Sames 
 y. Onderdonk, 2 Hun, 619. 
 
 V. Munro, 4 Lans., 67; Affirmed, 47 N. Y., 
 
 360. 
 
 v. Rawdon, 44 N. Y., 63. Pleading. Fol- 
 
 lowed, Church of the Redeemer v. Crawford. 86 
 N. Y. Supr., 307. 
 
 T. Searing, 16 N. T., 112. Decision of 
 
 tribunal of voluntary association. Distin- 
 
CASES CRITICISED. 
 
 ui 
 
 guished, Connitt T. Reformed Prot Dutch Church, 
 etc., 54 N. Y., 651. 
 Ayer v. Kobbe, 86 N. Y. Supr., 158. Affirmed, 59 
 N. Y., 454. 
 
 Ayers v. Lawrence, 63 Barb., 454. Parties to ac- 
 tions. Followed, Tijl r. City of Buffalo, 65 
 Barb., 460. Eeversed, 59 N. Y., 192. 
 
 V. The Western R. R. Corporation, 49 N. 
 
 Y., 660. Costs, Followed, Board of Commis- 
 sioners of Pilots V. Spofford, 8 Hun, 52. 
 
 Aymar v. Chase, 1 Code E., 141. Amended an- 
 swer. Approved, Schmidt y. Arguimban, 46 
 How., 105. 
 
 Ayrault v. Pacijic Bank, 1 Abb. N. S., 881 ; 6 
 Rob. 837. Affirmed, 47 N. Y., 570. 
 
 T. Sackett, 17 How., 507. Referee, power 
 
 to change report. Approved, Gfay v. Fisk, 
 42 How., 185; 12 Abb. N. S., 213; 83 N. Y. 
 Supr., 484. 
 
 Babhett v. Young, 51 Barb., 466 ; Affirmed, 61 N. 
 Y., 238. 
 
 Babcock v. Stoddard, 8 N. Y. S. C, 207. Legacy 
 in lieu of dower. Followed, Sanford v. San- 
 ford, 4 Hun, 753. 
 
 Bacon v. Bumham, 37 N. Y., 614. Indorsement 
 of note. Followed, Phelps v. Vischer, 50 N. 
 Y., 69. Pleading. Followed, Woodruff v. 
 Leonard, 1 Hun, 632. 
 
 • V. Oilman, 4 Lans., 456 ; 60 Barb., 640. Af- 
 
 firmed, 67 N. Y.^ 656. 
 
 - V. Reading, 1 Duer, I 
 
 Stay of entry 
 of judgment. Explained, Alfaro v. Davidson, 
 89N.Y. Supr., 408. 
 
 Badeau v. Mead, 14 Barb., 828. Deed, bounding 
 on road. Followed, Cox v. James, 59 Barb., 
 144. 
 
 Bagley v. Smith, 10 N. Y., 489. Damages. Dis- 
 tinguished, Kon Ness V. Fisher, 6 Lans., 236. 
 
 Bailey v. Buell, 59 Barb., 158. Reversed, 60 N. 
 Y., 662. Distinguished, Dom v. Backer, 61 
 Barb., 597. 
 
 V. Southwick, 6 Lans., 356. Affirmed sub 
 
 nom, Bailey v. Briggs, 66 N. Y., 407. 
 
 ■ v. Stone, 41 How., 346. Costs. 
 
 Distin- 
 guished, Jjultgor V. Waiters, 64 Barb., 417. 
 
 Bain v. Broum, 7 Lans., 606. Affirmed, 56 N. Y., 
 286. 
 
 Baird v. Daily, 4 Lans., 426. Eeversed, 57 N. Y., 
 236. 
 
 Bakeman v. Talbot, 81 N. Y., 866. Obstruction to 
 right of way. Approved, Huson v. Young, 4 
 Lans., 63. 
 
 Baker v. Boucicault, 1 Daly, 23. Contract. Dis- 
 tinguished, Higgins v. Murray, 4 Hun, 665. 
 
 V. Higmns, 21 N. Y., 897. Entire contract." 
 
 Approved, Kein v. Tupper, 42 How., 437; 33 
 N.Y. Supr., 465. 
 
 ■ V. Johnson, 4 Abb^ 437. Receiver. Fol- 
 
 lowed, Holbrook v. Orgler, 49 How., ! 
 
 V. Spencer, 58 Barb., 248. Affirmed, 47 
 
 N. Y, 662. 
 V. Union Mutual Life Ins, Co., 48 N. Y., 
 
 283. Life insurance. Approved, Roehner v. 
 
 Knickerbocker Life Ins. Co., 4 Daly, 512 ; 
 
 Thompson v. Americari F. L. and S. Ins. Co., 46 
 
 N. Y., 674. 
 Baldwin v. Brown, 16 N. Y., 359. Title by prac- 
 tical location. Followed, Cramer v. Benton, 64 
 
 Barb. 622. " 
 
 V. The Mayor, etc., 2 Keyes, 387. Ap- 
 pealable order. Approved, Ramsey v. Gould, 
 4 Lans., 476. 
 
 V. Palmer, 10 N. Y.j232. Contract, valid- 
 ity. Followed, Dow v. Way, 64 Barb., 255. 
 ■ V. U. S. Telegraph Co., 54 Barb., 506 ; 1 
 
 Lans., 126. Reversed, 45 N. Y., 744. 
 
 ■ V. Van Deusen, 37 N. Y, 487. Payment. 
 
 Approved, Roberts v. Fisher, 43 id., 159. 
 Ball V. Liney, 44 Barb., 505. Reversed, 48 N. 
 
 Y., 6. 
 Ballard v. Ballard, 40 N. Y., 314. Assignment. 
 
 Distinguished, Moore v. Miller, 6 Lans., 396. 
 V. Burgett, 40 N. Y., 314. Bona fide pur- 
 
 chaser. Approved, Austin v.. Dye, 46 id., 500. 
 Distinguished, Hoyt v. Baker, 15 Abb. N. S., 
 405. Conditional sale. Followed, Powell v. 
 Presion, 1 Hun, 613. 
 
 Ballou V. Cunningham, 4 Lans., 74. Reported as 
 judgment reversed instead of affirmed. S. C, 
 60 Barb., 425. 
 
 Balene v. Wombouqh, 38 Barb., 362. Lex loci. 
 Distinguished, Uildreth v. Shepard, 65 Barb., 
 265. 
 
 Baltzen v. Nicolay, 85 N. Y. Supr., 203. Reversed, 
 58 N. Y. 467. 
 
 Bank of Albion v. Burns, 2 Lans., 62. Affirmed, 
 46 N. Y., 170. 
 
 Bank of America v. Woodworth, 18 J. R., 315. 
 Alteration of note. Approved, Benedict v. 
 Cowden, 49 N. Y., 396. 
 
 Bank of Attica v. Manufacturers Sj- Traders Bank, 
 20 N. Y., 501. By-law. Approved, Driscoll v. 
 W. Bradley, etc. Manuf. Co., 59 id., 96. 
 
 V. Wolf, 18 How., 103. Costs. FoUowed, 
 
 Williams v. Blunter, 49 How., 12. 
 
 Bank of Auburn v. Roberts, 45 Barb., 407. Af- 
 firmed, 44 N. Y., 192. 
 
 Bank of Commerce y. Union Bank, 3 N. Y., 230. 
 Money paid. Approved, Marine Nat. Bank v. 
 Nat. City Bank, 86 N. Y. Supr., 470. Distin- 
 guished, Allen y. Fourth Nat. Bank, 37 N. Y. 
 Supr., 137. 
 
 Bank of the Commonwealth v. The Mayor, etc. of 
 New York, 48" N. Y., 184. Involuntary pay- 
 ment. Distinguished, Dewey v. Supervisors of 
 Niagara Co., 2 Hun, 393. Recovery back of , 
 illegal tax. Followed, Merchants Nat. Bank 
 V. Supervisors of New York, 3 Hun, 156 ; Union 
 Nat. Bank v. The Mayor, etc., 51 N. Y., 638. 
 
 Bank of Commonwealth v. Mudgett, 46 Barb., 663. 
 Affirmed, 44 N. Y., 514. 
 
 Bank of Genesee v. Patchin Bank, 13 N. Y., 309. 
 Pleading. Explained, Abbott v. New York Cen- 
 tral R. R. Co., 12 Abb. N. S., 465. 
 
 Bank of Geneva v. Reynolds, 33 N. Y., 160. Ap- 
 pealable order. Followed, Hall v. Emmons, 
 2 Sweeny, 396. 
 
 Bank of Georgia v. Lewin, 45 Barb., 840. Lex 
 loci. Distinguished, Hildreth v. Shepard, 65 
 Barb., 265. Usury. Approved, First Rational 
 Bank v. Morris, 1 Hun, 680. 
 
 Bank of New Orleans v. Matthews, 49 N. Y., 12. 
 Partnersliip. Approved, Hubbard y. Matthews, 
 54 N. Y, 43. 
 
 Bank of New York y. Vanderhorst, 32 N. Y., 568. 
 Bona fide holder. Followed, Moody y. An- 
 drews, 39 N. Y. Supr., 302. 
 
 Bank of Rochester v. Jones, 4 N. Y., 497. Sale, 
 delivery. Followed, Indiana National Bank v. 
 Colgate, 4 Daly, 41 ; Cayuga Co. National Bank 
 
VI 
 
 CASES CRITICISED. 
 
 Blasori V. Bmno, 33 Barb., 520. Order of arrest. 
 
 Distinguislied, Johnson v. Whitman, 10 Abb. 
 
 N. S., 111. 
 
 * Blend v. People, 41 N. Y., 604. Jurisdiction. 
 
 Distinguished, People v. Dohring, 59 N. Y., 374. 
 
 Blewett V. Baher, 37 N. Y. Supr., 28. Affirmed, 
 58 N. Y., 611. 
 
 Blin V. Campbell, 14 Johns., 432. Injury by ac- 
 cident. Distinguished, Losee v. Saratoga 
 Paper Co., 42 How., 385. 
 
 Bliss V. Matteson, 52 Barb., 335. Affirmed, 45 N. 
 Y., 22. 
 
 V. Otis, 1 Den, 656. Attorney, liability 
 
 for costs. Followed, Voorhees r. VfcCartnet/, 
 51 N. Y., 387. 
 
 Blivin V. Hudson Riv. R R. Co., 36 Barb., 188. 
 Liability of carrier. Disapproved, Mierson v. 
 Hope, 2 Sweeny, 561. 
 
 Bloodgood v. Gregory, 38 N. Y. Supr., 132. Leave 
 to appeal. Denied, id., 566. 
 
 V. Mohawk Sr Hud. Riv. R. R. Co., 18 Wend., 
 
 9. Compensation. Followed, Rider v. Stryker, 
 2 Hun, 115; Bloomfidd, etc. Nat. Gas Light 
 Co., V. Richardson, 63 Barb., 437 ; Chapman v. 
 Gates, 54 N. Y., 132. 
 
 Blossom V. Dodd, 43 N. Y., 264. Garrier, restric- 
 tion of liability. Followed, Kirkland v. Dins- 
 more, 2 Hun, 46. Distinguished, Belger v. 
 Dinsmore, 51 N. Y., 166. 
 
 Blot V. Boiceau, 3 N. Y., 78. Evidence. Ap- 
 proved, Morange v. Mix, 44 id., 315. 
 
 Board of Supervisors of Richmond Co. v. Wandel, 
 6 Lans., 33. Affirmed, 59 N. Y., 645. 
 
 Board of Water Commissioners of Detroit v. Burr, 
 38 N. Y. Supr., 522. Affirmed, 56 N. Y., 665. 
 
 Boardman v. Gaillard, 1 Hun, 217. Affirmed, 60 
 N. Y., 614. 
 
 Bodine v. Exchange Fire Ins. Co., 51 N. Y., 117. 
 Insurance. Distinguished, Thayer v. Agricul- 
 tural Ins. Co., 5 Hun, 566. 
 
 V. Moore, 18 N. Y., 250. Right of re- 
 demption. Approved, Ellsworth v. Muldoon, 
 
 46 How., 246 ; 15 Abb. N. S., 440. 
 
 Boeklen v. Hardenbergh, 37 N. Y. Supr., 110. 
 Affirmed, 60 N. Y., 8. 
 
 Bogardus v. Richtmeyer, 3 Abb., 179. Costs. 
 Distinguished, Keeled- v. Van Wie, 49 How,, 97. 
 
 V. Trinity Church, 4 Paige, 178. Statutes 
 
 as to religious corporations. Approved, Madi- 
 son Avenue Bapt. Church v. Bapt. Church in 
 Oliver St., 11 Abb. N. S., 132 ; 46 N. Y., 131. 
 
 Boldt V. New York Central R. R. Co., 18 N. Y., 
 432. Co-employe. Followed, Ross v. Same, 5 
 Hun, 488. 
 
 Bolen V. Crosby, 49 N. Y., 188. Action against 
 trustee of corporation. Distinguished, Bran- 
 son V. Dimock, 4 Hun, 614. 
 
 Bolton V. Jacks, 6 Rob., 166. Evidence, record. 
 
 Approved, Howard v; Smith, 42 How., 300 ; 
 
 83 N. Y. Supr., 124. ' 
 V. Lawrence, 9 Wend., 435. Poundage. 
 
 Followed, Campbell v. Cothran, 56 N. Y., 279. 
 
 Bomanjee Byramjee Colab, 3 Daly, 529. Com- 
 mittee of lunatic. Approved, Matter of Owens, 
 
 47 How., 150. 
 
 Bond V. Willett, 29 How., 47 ; 81 N. Y., 102. 
 Execution. Distinguished, Hathaway v. 
 Howell, 54 N. Y., 97. 
 
 Bonito V. Morquera, 2 Bosw., 401. Factor. Fol- 
 lowed, Howland v. Woodruff, 60 N. Y., 73. 
 
 Booth V. Amerman, 4 Bradf., 129. Taxes on in- 
 vested fund. Distinguished, WeUs v. Knight, 
 5 Hun, 50. 
 
 V. Bunce, 24 N. Y., 592. Fraud. Dis- 
 tinguished, Smith V. Van Olinda, 48 id., 169. 
 v. Farmers and Mechanics Bank, 4 Lans.i 
 
 301. Reversed, 50 N. Y., 896. 
 
 Borden v. Fitch, 15 John., 121. Foreign divorce, 
 validity of. Followed, Hotmei v. Holmes, 4 
 Lans., 388. 
 
 Bordsdorf, Matter of, 17 Abb., 168. Revivor by 
 supplemental complaint. Followed, Stewart 
 V. Peters, 38 N. Y. Supr., 66. 
 
 Bornsdorfv. Lord, 41 Barb., 211. Supplemental 
 complaint. Overruled, Beach v. Reynolds, 64 
 Barb., 506. 
 
 Boston Sf Albany R. R. Co. v. Village of Green- 
 bush, 5 Lans., 461. Affirmed, 52 N. Y., 510. 
 
 Boston Mills v. Eull, 6 Abb. N. S., 319 ; 87 How., 
 299. Counterclaim. Approved, Chamboret v. 
 Cagney, 41 How., 125; 10 Abb. N. S., 31 ; 2 
 Sweeny, 378. 
 
 Bostuiick V. Baltimore Sr Ohio R. R. Co., 55 Barb., 
 137. Reversed, 45 N. Y., 712. Carrier, limit- 
 ation of liability. Approved, Lamb v. Camden 
 and Amboy R. R. Co., 4 Daly, 483. 
 
 V. Tioga R. R. Co., 17 How., 456. Extra 
 
 allowance. Followed, Merchants Exchange 
 Nat. Bank v. Commercial Warehouse Co., 36 
 N. Y. Supr., 214. 
 
 Boughton v. Bruce, 20 Wend., 234. Possession 
 of securities for usurious loan. Distinguished, 
 Wheelock v. See, 15 Abb. N. S., 24. 
 
 Bowen v. Bradley, 9 Abb. N. S., 395. Usury. 
 Approved, First National Bank v. Morris, 1 
 Hun, 680. Overruled, Clayes v. Hooker, 4 
 Hun, 231. 
 
 V. Irish Presb. Congregation of New York, 
 
 6 Bosw., 545. Contract by religious corpora- 
 tion. Approved, Congregation Beth. Elohim v. 
 Central Presb. Church, 10 'Abb. N. S., 484. 
 
 ■ V. Newell, 13 N. Y., 290. Lex loci. Fol-" 
 
 lowed, Hildreth v. Shepard, 65 Barb., 265. 
 
 Bowers v. Smith, 10 Paige, 198. Action for con- 
 struction of will. Followed, Bailey v. South- 
 wick, 6 Lans., 856. 
 
 Bowery, In re, 12 How., 97. Appeal. Overruled, 
 In Matter of Kingsbury Road, 4 Hun, 599. 
 
 Bowery Extension Case, 2 Abb., 869. Appeal 
 Overruled, In Matter of Commissioners of Cen- 
 tral Park, 4 Lans., 467 ; 61 Barb., 40. 
 
 Bowles V. Van Horn, 11 Abb., 84. Costs on leave 
 to stipulate. Held obsolete. Perkins v. But- 
 ler, 42 How., 102. 
 
 Bowling Green Savings Bank v. Todd, 64 Barb., 
 146.' Affirmed, 52 N. Y., 489. Attorney, 
 remedy against. Distinguished, Porter v. 
 Parmly, 89 N. Y. Supr., 219. 
 
 Bowman v. De Peyster, 2 Daly, 203. Appealable 
 order. Followed, Schreyer v. Mayor, etc. of 
 New York, 39 N. Y. Supr., 277. 
 
 V. Troy Sr Boston R. R. Co., 37 Barb., 
 
 516. Railroad company's liability. Dis- 
 tinguished, Brady v. Renss. &• Saratoga R. R. 
 Co., 1 Hun, 378. 
 
 Boyd V. Gray, 34 How., 323. Tax collector's lia- 
 bility. Approved, Bradley v. Ward, 58 N. Y., 
 401. 
 
 Boynton v. Hatch, 47 N. Y., 226. Stockholder's 
 liability. Limited and distinguished, Schenck 
 V. Andrews, 57 N. Y., 138. 
 
OASES CRITICISED. 
 
 Vll 
 
 BraUn v. Hyde, 82 N. T., 519. Statute of frauds. 
 Followed', Waliath v. Richie, 5 Lans., 362. 
 
 Bradley v. Mut. Benefit Life Ins. Co., 8 lians., 
 841. Reversed, 45 N.-Y., 422. 
 
 — V. W^eeZer, 4 Bob., 18. Affirmed, 44 N. Y., 
 
 495. Sale, when complete. Distinguished, 
 Kein v. Tupper, 42 How., 487 ; 33 N. Y. Supr., 
 465. 
 
 Brady v. Supervisors, 6 Lans., 660. Mandamus. 
 Followed, People ex rel. Wells v. Board of 
 Audit, 4 Hun, 94. 
 
 Brainard v. Jones, 18 N. Y., 36. Interest. Fol- 
 lowed, Gutta Percha Sc Rubber Manuf. Co. v. 
 Benedict, 87 N. Y. Supr., 430. 
 
 Brayton v. Smith, 6 Paige, 489. Sheriff 's liability. 
 Explained, Beckwith v. Smith, 4 Lans., 182. 
 
 Breusted v. Farmers Loan and Trust Co., 4 Hill, 
 73; 8 N. Y., 299. Life Insurance. Distin- 
 guished, Fowler v. Mutual Lj/e Ins. Co., 4 Lans., 
 202 ; Van Zandt v. Mutual Benefit Life Ins. Co., 
 55 N. Y., 169. 
 
 Breese v. U. S. Telegraph Co., 45 Barb., 274 ; 31 
 How., 86 ; Affirmed, 48 N. Y., 132. Condition 
 in printed blank. Followed, Young v. Western 
 Un. Telegraph Co., 34 N. Y. Supr., 390. 
 
 Brett V. Buckman, 32 Barb., 655. Discovery. 
 Distinguished, Hauseman v. Sterling, 61 Barb., 
 347. 
 
 Bretz T. Mayor, etc. of Nem York, 35 How., 130. 
 Public and local acts. Followed, McLain v. 
 Mayor, etc., 3 Daly, 33. 
 
 Brewster v. SUliman, 88 N. Y., 423. Damages 
 in replevin. Explained and distinguished, 
 All^n V. Fox, 61 N. Y., 562. 
 
 V. Syracuse, City of, 19 N. Y., 116. Title 
 
 of local act. Followed, People ex rel. N. Y. ^ 
 Harlem R. R. Co. v. Havemeyer, 4l^ How., 494. 
 Van Ness, 18 Johns. 133. Action 
 
 against sheriff. Followed, Nelson v. Kerr, 59 
 
 N. Y., 224. 
 Brickner v. New York Central R. R. Co., 2 Lans., 
 
 606. Affirmed, 49 N. -Y., 672. Negligence. 
 
 Distinguished, Tinney v. Boston ^ Albany R. 
 
 R. Co., 62 Barb., 218. 
 Bridenbecker v. Lowell, 32 Barb., 9. Agent* s au- 
 thority. Distinguished, Wardrop y. Dunlop, 
 
 1 Hun, 326. 
 Bridger v. Pierson, 1 Lans., 481. Reversed, 45 
 
 N. Y., 601. 
 Briggs v. Boyd, 66 Barb., 197. Affirmed, 56 N. 
 
 y;, 289. 
 V. Brtggs, 20 Barb., 477. Counterclaim. 
 
 Distinguished, Perry v. Chester, 12 Abb. N. S. 
 
 131. 
 
 - V. Davis, 20 N. Y., 18. Sale by trustees. 
 
 Followed, Griswold v. Perry, 7 Lans., 
 
 - V. Easterly, 62 Barb., 51. Action against 
 
 trustee of corporation. Followed, Branson v. 
 Dimock, 4 Hun, 614. 
 
 V. Rowe, 4 Keyes, 426. Broker's Com- 
 missions. Distinguished, Briggs v. Boyd, 56 
 N. Y., 289. ■ 
 
 Bright v. Judson, 47 Barb., 29. Bona fide holder. 
 Approved, Philbrick v. Dallett, 43 How., 419 ; 
 12 Abb. N. S., 419 ; 34 N. Y. Supr., 370. 
 
 V. Supervisors of Chenango Co., 18 Johns., 
 
 242. Extra compensation. Distinguished, 
 Cowan V. Mayor, etc. of New York, 3 Hun, 632 : 
 Explained, Crofitt v. Brandt, 46 How., 481 ; 47 
 How., 268. 
 
 Brink T. Richtmeyer, 14 Johns., 256. Riparian 
 
 rights. Followed, Whittaker v. Burhans, 62 
 Barb., 287. 
 
 Brinkley v. Brinkley, 47 N. Y., 4?. Contempt. 
 Followed, In matter of Genet, 1 Hun, 292 ; Ap- 
 proved, Marshall v. Marsha,!!, 48 How., 57 ; 2 
 Hun, 238. 
 
 Britton v. Lorentz, 3 Daly, 23. Affirmed, 45 N. 
 Y., 61. 
 
 Brizee v. Maybee, 21 Wend., 144. ' Damages in 
 replevin. Approved, Twinan v. Swart, 4 Lans., 
 263 ; Spicer v. Waters, 65 Barb., 227. 
 
 Broadway, Matter of widening, 42 How., 220 ; 61 
 Barb., 483. Affirmed, 49 N. Y., 150. 
 
 Brock V. Smith, 64 Barb., 212. Ne Exeat. Fol- 
 lowed, Beckwith v. Smith,, 4 Lans., 182. 
 
 Branson, In Matter of, 1 Tuck., 467. Executor- 
 ship. Followed, HartneM V. Wandell, 2 Hun, 
 652. 
 
 Brooklyn, City of, v. Brooklyn City R. R. Co., 8 
 
 Abb. N. S., 356 ; 57 Barb., 497.' Affirmed, 47 
 
 N. Y., 476. 
 Brooklyn City v. LoU, 2 Hun, 628. Affirmed, S. 
 
 C. sub nom. In re Prospect Park, 60 N. Y., 398. 
 Brooklyn Park Commissioners v. Armstrong, 3 
 
 Lans., 429. Reversed in part, 45 N. Y., 234. 
 
 Brookman v. Bamill, 54 Barb., 209. Affirmed 
 in part, 43 N. Y., 554. Jurisdiction. Fol- 
 lowed, Dougan v. Champlain Trans. Co., 6 
 Lans., 430. Distinguished, Chisholm v. North- 
 ern Trans. Co., 61 Barb., 363. Maritime 
 lien. Followed, Poole v. Kermit, 37 N. Y. 
 Supr., 114 ; S. C, 59 N. Y., 654. 
 
 Brooks V. Curtis, i Lans., 283. Affirmed, 50 N. 
 Y., 639. 
 
 v. Schwerin, bi N. Y, 343. Rights of 
 
 married women. Followed, Bean v. Kiah, 4 
 Hun, 171. 
 
 Brauwer v. Harbeck, 9 N. Y., 689. Transfer by 
 insolvent corporation. Distinguished, Butcher 
 V. Importers and Traders Nat. Bank, 59 N. Y., 5. 
 
 Brown v. Brown, 1 Hun, 443. Reversed, 68 N, 
 Y., 609. 
 
 V. , 30 N. Y., 519. EstoppeL Fol- 
 lowed, Finnegan v. Caraher, 47 id., 493. 
 
 V. Buffalo ^ State Line R. R. Co., 22 N. 
 
 Y,, 191. Negligence. Overruled, Beisegel v. 
 New York Central R. R. Co., 14 Abb. N. S., 29. 
 
 V. Canton, Town of, 4 Lans., 409. Re- 
 versed, 49 N. Y., 662. 
 
 V. Cattaraugus Co. Mutual Ins. Co., 18 N. 
 
 Y., 885. Condition in policy. Followed, 
 Pechner v. Phcenix Ins. Co., 6 Lans., 411. 
 
 ■ V. Cayuga ^ Susq. R. R. Co, 2 Kern., 486. 
 
 Nuisance, continuance of. Disapproved, Con- 
 hocton Stone R. Co., v, Buffalo, N. Y. &■ Erie R. 
 R. Co, 61 N. Y., 573. 
 
 ■ V. Cherry, 59 Barb., 628. Reversed, 57 
 
 N. Y„ 
 
 V. Crawl, 5 Wend., 298. False imprison- 
 ment, who liable. Approved, Hall v. Munger, 
 5 Lans., 100. 
 
 ■ V. Curtis, 2 N. Y., 225. Parol guaranty. 
 
 Followed, Lessee v. Williams, 6 Lans., 228, 
 Ellenwaod v. Fults, 63 Barb., 321. 
 
 ■ V. McCune, 5 Sandf., 224. Arrest of in- 
 
 fant for fraud. Disapproved, Schunemann v. 
 Paradise, 46 How., 426. 
 
 • V. Nichols, 42 N. Y., 26. Judgment re- 
 
 cord as evidence. Distinguished, Howard v. 
 Smith, 42 How., 300 ; 33 N. Y. Supr., 124. 
 
viu 
 
 CASES CRITICISED. 
 
 V. Salsbury, 9 Barb., 511. Sale. Over- 
 ruled, Halterline v. Rice, 62 Barb., 593. 
 
 • V. Smith, 24 Barb., 420. Assessor's lia- 
 
 bility. Approved, Dornv. Backer, 61 Barb., 
 597 ; People v. Tweed, 18 Abb. N. S., 419. Dis- 
 tinguished, Wade V. Matheson, 4 Lans., 158. 
 Overruled, Palmer v. Lawrence, 6 Lans., 282. 
 . V. State Line R. R. Co., 22 N. Y., 191. 
 
 Negligence. Overruled, Ryan v. Thomson, 38 
 N. r. Supr., 133. 
 
 Browne v. Bradley, 5 Abb., 141. AfSdavit for 
 discharge. Distinguished, Hillyer v. Rosenberg, 
 11 Abb. N S., 402. 
 
 Brownell v. Brownell, 19 Wend., 370. Partition 
 by remainder-man. Obsolete, Howell v. Mills, 
 7 Lans., 193. Overruled, Sullivan v. Sullivan, 
 4 Hun, 198. 
 
 V. Hawkins, 4 Barb., 491. Pledge."-- Dis- 
 tinguished, Bunacleugh v. Poolman, 8 Daly, 236. 
 -V. Winnie, 29 N. Y., 400. Note, alteration 
 
 of. Followed, Card v. Miller, 1 Hun, 504. 
 Bruce v. Tilson, 25 N. Y., 194. Demand before 
 
 suit. Approved, Miner v. Beekman, 11 Abb. 
 
 N. S., 147 ; 42 How., 33 ; 83 N. Y., Supr., 67. 
 Brundage v. Brundage, 65 Barb., 357. Affirmed, 
 
 60 N. Y., 544. 
 Bryan y. Baldwin, 7 Lans., 174. Affirmed, 52 
 
 N. Y., 232. 
 Bri/ce V. Lorillard Fire Ins. Co., 86 N. Y. Supr., 
 
 394. Affirmed, 46 How., 498. 
 Buchanan v. Morrell, 18 How., 299. Nature of 
 
 action. Approved, Phelps v. Wood, 46 How., 1. 
 Buck V. Amidon, 41 How., 370. Agent's personal 
 
 liability. Distinguished, Bradley v. Dodge, 45 
 
 How,, 57. 
 Buckbee v. U. S. Trust Co., 18 Barb., 541. Waiver. 
 
 Distinguished, Evans v. U. S. Life Ins. Co., 3 
 
 Hun, 587. 
 Buckley v. Bentley, 48 Barb. 288. Parol evi- 
 dence to vary writing. Approved, Pohalaski 
 
 V. Mutual Life Ins. Co., 45 How., 504 ; 36 N. Y. 
 
 Supr., 234. 
 V. Fumiss, 15 Wend., 187. Stoppage in 
 
 transitu. Approved, Clark v. Lynch, 4 Daly, 
 
 83. 
 Bucklin V. Ford, 5 Barb., 394. Limitation of 
 
 actions. Distinguished, Dunham y. Sage, 7 
 
 Lans., 419. 
 Buffalo and Alleghany R. R. Co. v. Cary, 26 
 
 N. Y., 75. Stock subscription. Followed, 
 
 Dorris v. Sweeney, 64 Barb., 686. 
 Buffalo andN. Y. R. R. Co. v. Brainard, 9 N. Y., 
 
 109. Eminent Domain. Followed, Bloom- 
 field, etc. Nat. Gas Light Co. v. Richardson, 
 
 53 Barb., 437. 
 Buffalo City Cemetery v. City of Buffalo, 46 N. Y., 
 
 506. Assessment for benefits. Distinguished, 
 
 Matter of opening Eleventh Ave., 49 How., 208. 
 Buffalo Savings Bank v. Newton, 23 N. Y., 160. 
 
 Appealable order. Distinguished, Depew y. 
 
 Dewey, 46 How., 441. 
 Buffalo Union Iron Works v. City of Buffalo, 13 
 
 Abb. N. S., 141. Affirmed, 47 N. Y., 671. 
 Bullock T. Babcock, 3 Wend., 391. Injury by 
 
 accident. Distinguished, Losee v. Saratoga 
 
 Paper Co., 42 How., 386. 
 Bullymare v. Cooper, 2 Lans., 71. Affirmed, 46 
 
 N. Y., 236. 
 Bundage v. Warner, 2 Hill, 145. Easement. 
 
 Followed, Kurkee v. Haley, 47 How., 75. 
 
 Bunge v. Koop, 6 Rob. 1. Affirmed, 48 N. Y., 225. 
 
 Bunn V. Vaughan, 3 Keyes, 845. Trust. Dis- 
 tinguished, Curtis v. Smith, 60 Barb., 9. 
 
 Bumell v. New York Central R. S. Co., 46 N. Y., 
 184. Burden of proof. Followed, Colemdn v. 
 Livingston, 86 N. Y. Supr., 82. Carrier's lia- 
 bility. Distinguished, Milnor v. N. Y. and 
 N. H. R. R. Co., 53 N. Y., 363. 
 
 Burnett v. Westfall, 15 How., 480. Costs. Fol- 
 lowed, Magnin v. Dinsmore, 46 How. , 297 ; 15 
 Abb. N. S. 331. 
 
 Bumhamv. Acton, iAbh.'S. S., 1. Public act, 
 Approved, People v. Davis, 61 Barb., 456. 
 
 V. Onderdonk, 41 N. Y., 425. Action to 
 
 determine claims to real property. Followed, 
 Haynes v. Onderdonk, 2 Hun, 619 ; Boyleston y. 
 Wheeler, id., 622. 
 
 ■ y. Walkup, 54 N. Y., 656. Variance. 
 
 Followed, Dudley v. Scranton, 57 N. Y., 424. 
 Bums v. Bryant, 31 N. Y., 453. Tenant at will. 
 FoUowed, Larned v. Hudson, 60 N. Y., 102. 
 Y.Rowland, 40 Barb., 368. iBono^/Jde hold- 
 
 er. Approved, Leuiis v. Rogers, 34 N. Y. Supr., 
 64. 
 Burr v. Beers, 24 N. Y., 178. Conveyance sub- 
 ject to mortgage. Distinguished, Gumsey y. 
 Rogers, 47 N. Y., 233. 
 
 V. Burr, 10 Paige, 22. Alimony. Ap- 
 
 proved, Grain v. Cavana, 62 Barb., 109. 
 
 ■ v. Stenton, 52 Barb.,, 377. Affirmed, 43 
 
 N. Y., 462. 
 Burrall y. Acker, 28 Wend., 606, Bond taken colore 
 
 officii. Explained, Richardson v^ Crandall, 48 
 
 N. Y.,848. 
 Burrel v. Associate Ref. Church, 44 Barb., 282. 
 
 Eeligious corporation. Followed, Watkins v. 
 
 Wilcox, 4 Hun, 220. 
 Burrill v. Bull, 3 Sandf., 16. Partnership. Ap- 
 proved, Weston V. Ketchum, 89 N. Y. Supr., 54. 
 Burtis v. Buff, and State Line R. R. Co., 24 N. Y., 
 
 269. Liability of carrier. Connecting lines. 
 
 Approved, Root v. Great Western R. R. Co., 
 
 45N. Y., 524. 
 
 Burwell V. Jackson, 9 N. Y., 535. Warranty, 
 implied. Followed, Penfkldv. Clark, 62 Barb., 
 584; Bensel y. Gray, 88 N.Y. Supr., 447. 
 Distinguished, Leggett v. Mutual Life Ins. Co., 
 58N. Y., 594. 
 
 Bush V. Cole, 28 N. Y., 269. Contract. Dis- 
 tinguished, Bellinger y. Bentley, 1 Hun, 562. 
 
 y. Denniston, 14 How., 310. Notice of ap- 
 peal. Avery v. Woodbeck, 5 Lans., 498 ; 62 
 Barb., 557. 
 
 V. Lathrop, 22 N. Y., 535. Sale of 
 
 pledge. Distinguished, McNeil v. Tenth Na- 
 tional Bank, 46 N. Y., 825. Right of assignee. 
 Followed, Schafer f. Reilly, 50 id., 61. Pri- 
 ority of equities. Criticised, but followed, 
 Reeves V. Kimball, 63 Barb., 120. 
 
 V. Prosser, -11 N. Y. 847. Pleading in 
 
 libel. Explained, Fink v. Justh, 14 Abb. 
 N. S., 107 ; Wehle v. Haviland, 42 How., 899 • 
 4 Daly, 550. 
 
 Buswell V. Poineer, 37 N. Y., 312. Evidence, 
 parol. Distinguished, Howard v. Norton, 65 
 Barb., 161. 
 
 Butchers and Drovers Bank y. Jacobson 22 
 
 How. 470. Costs. Followed, Whitman y. 
 
 Nicoll, 49 How., 88 ; Bernhard v. Ko^p, n 
 aDd* N. S>f S42. 
 
OASES CRITICISED. 
 
 m 
 
 Butler V. Benson, 1 Barb., 626. Memoranda as 
 
 evidence. Followed, Thurman t. Mosher, 
 
 1 Hun, 344. 
 v. Galletti, 21 How., 465. Injunction. 
 
 Distinguished, Daly v. Smith, 38 N. Y. Supr., 
 
 164. 
 
 • T. Wright, 2 Wend., 26Q. Action. Follow- 
 
 ed, Douaherty v. VaUottm, 38 N. Y. Supr., 455. 
 
 Butterfield Y. Eadde, S8 N. Y. Supr., 44. Appeal. 
 Followed, Gary v. Gregoi-y, id., 666. 
 
 Butterworth v. Crawford, 3 Daly, 57. Reversed, 
 46 N. Y., 349. Easement. Distinguished, 
 Hamel V. Griffith, 49 How., 305. 
 
 — V. Gouid,.41N. Y., 450. Action. Follow- 
 ed, Rowe V. Bank of Auburn, 51 N. Y., 674 ; 
 Decker T. Saltzman, 69 id., 276. 
 
 • V. O'Brien, 24 How., 488. Pleading. Ap- 
 
 proved, Read V. Lambert, 10 Abb. N. S., 428, 
 Button V. Hudson Riv. R. R. Co., 18 N. Y., 248. 
 
 Negligence, burden of proof. Followed, Rob- 
 inson V. New York Cent. ^T Hudson Riv. R R. 
 
 Co., 65 Barb., 146. 
 Cadwetl v. Colgate, 7 Barb., 253. Jiu-isdiction. 
 
 Distinguished, Miller v. Adams, 52 N. Y., 409. 
 
 Statutory undertaking. Distinguished, Bil- 
 
 dersee v. Aden, 12 Abb. N. S., 324. 
 Cagger v. Lansing, 57 Barb., 421. Reversed, 43 
 
 N. Y., 550. Specific performance. Followed, 
 
 Morrill V. Cooper, 65 Barb., 612. 
 Caldwell V. Murphy, II N. Y., 416. Evidence. 
 
 Followed, Cleveland v. N. J. Steamboat Co., 
 
 6-Hun, 523. 
 
 V. New Jersey Steamboat Co., 56 Barb., 
 
 426. Aflrmed, 47 N. Y., 282. Exemplary 
 damages. Followed, Hamilton v. Third Ave. 
 R. R: Co., 44 How., 294 ; 13 Abb. N. S., 318 ; 
 35 N. Y. Supr., 118. 
 
 Calkins v. Baldwin, 4 Wend., 667. Statutory 
 remedy. Distinguished, Smith v. City of Al- 
 bany, 7 Lans., 14. 
 
 Campbell v. Ewalt, 7 How., 400. False imprison- 
 ment. Approved, Smith v. Warden, 4 Hun, 
 787. 
 
 V. Foster, 35 N. Y., 361. Trust property, 
 
 liability for debts. Approved, Hunn v. Van 
 Voorhis, 15 Abb. N. S., 79 ; 5 Hwi, 425. 
 
 V. Genet, 2 Hilt., 290. Injunction, what 
 
 property affected. Followed, Atkinson v. 
 Sewine, 43 How., 84 ; 11 Abb. N. S., 384. 
 
 ■ V. Johnson, 1 Sandf., 148. Will, power of 
 
 sale. Distinguished, Moncriefv. Ross, 50 N. Y., 
 431. 
 
 • V. People, 18 Wend., 636. Indictment 
 
 for perjury. Followed, Burns v. People, 5 
 Lans., 189. 
 
 ■ v. Perkins, 8 N. Y., 430. Reversal of 
 
 joint judgment. Followed, Vanslyck v. Snell, 
 6 Lans., 
 
 . V. Stokes, 2 Wend., 137. Infant's liabil- 
 
 ity. Followed, Moore v. Eastman, 1 Hun, 578. 
 V. Tate, 7 Lans., 370. Evidence. Fol^ 
 
 lowed, Benjamin v. Arnold, 2 Hun, 447. j-oj- 1 
 Canaday v. Steger, 35 N. Y. Supr., 423. AflBrmed, 
 
 55 N. Y., 452. 
 Canal Bank v. Bank of Albany, 1 Hill, 287. 
 
 Agent's liability. Followed, Holt v. Ross, 64 
 
 N. Y., 472 ; 69 Barb., 664. 
 Canal St., In matter of, 11 Wend., 154. Eminent 
 
 domain. Approved, In re Commissioners of 
 
 Washington Park, 56 N. Y., 144. 
 Canal and Walker Streets, 12 N. Y., 406. Ap- 
 
 peal Followed, Matter of Kingsbridge Road, 
 4 Hun, 699. 
 
 Canandaigua and Niagara Falls R. R. Co. v. 
 Payne, 16 Barb., 278. Compensation for land 
 taken by railroad company. Followed, Al- 
 bany 4r Susquehanna R. R. Co. v. Dayton, 10 
 Abb. N. S., 182. 
 
 Cancemi's case, 18 N. Y., 128. Second trial in 
 criminal case. Followed, People v. Reagle, 60 
 Barb., 627. Jurisdiction. Distinguished, 
 People V. Dohring, 59 N. Y., 374. 
 
 Candee v. Ogilvie, 5 Duer, 658. Costs. Ap- 
 proved. Bemhard v. Kapp, 11 Abb. N. »., 
 842. 
 
 Canjolle v. Ferrie, 23 N. Y., 90. Evidence of 
 marriage. Approved, Wright v. Wright, 48 
 How., 1. 
 
 Cardwell v. Hicks, 37 Barb., 468. Bona fide 
 holder. Approved. Huff v. Wagner, 63 Barb., 
 216. 
 
 Carhart V. Auburn Gas Light Co., 22 Barb., 297. 
 Nuisance. Followed, Hutchins v. Smith, 63 
 Barb., 251. Mulligan v. Elias, 12 Abb. N. S., 
 259. 
 
 Carman v. Mclncrow, 13 N. Y., 70. Mechanic's 
 lien. Followed, Lumbard v. Syracuse, Bing,. 
 i- New York R. R. Co., 65 N. Y., 491. Explain- 
 ed, Crane v. Genin, 60 id., 127. 
 
 V. Pultz, 21 N. Y., 547. Intendment on 
 
 appeal. Distinguished, Meyer v. Amidon, 46 
 N. Y., 169. 
 Games v. Piatt, 38 How., 100 ; 7 Abb. N. S., 42 ; 
 1 Sweeny, 140. Affirmed, 59 N. Y., 405. 
 
 Carpenter v. Blake, 60 Barb., 488. Reversed, 
 50 N. Y., 696. 
 
 V. Danforth, 62 Barb., 682. Sale of stock. 
 
 Distinguished, Mitchell v. Vermont Copper 
 Mining Co., 47 How., 218. 
 
 y, 60 Barb., 46. Affirmed, 57 
 
 N. Y., 657. 
 
 V. Nixon, 5 Hill, 260. Petit larceny. Ap- 
 proved, People ex rel. Stetzer v. Rawson, 61 
 Barb., 619. Impeaching evidence. Followed, 
 People V. Satterlee, 5 Hun, 167. 
 
 V. Oakley, 2 Lans., 458. Statute of frauds. 
 
 Approved, Morrill v. Cooper, 66 Barb., 512. 
 
 Carr v. Carr, i Lans., 314. Affirmed, 62 N. Y., 
 251. Issues to jury. Followed, Zimmerman 
 V. Schoenfeldt, 3 Hun, 692. 
 
 Carroll v. Carroll, 2 Hun, 609. Reversed, 60 
 N. Y., 121. 
 
 V. Coughlin, 3 Daly, 179. Discharge of 
 
 mechanic's lien. Followed, Spratt v. Nicholson, 
 8 Daly, 181. 
 
 ■ V. Staten Island R. R. Co., 66 Barb., 821. 
 
 Affirmed, 58 N. Y., 126. 
 
 Carter v. Bininger, 54 Barb., 155. Affirmed, 45 
 N. Y., 545. 
 
 Cartwright v. Wilmerding, 24 N. Y., 521. Factor. 
 Distinguished, Howland v. Woodruff, 60 N.Y., 
 178. 
 
 Carver v. Greque, 46 Barb., 507. Affirmed, 48 
 N. Y., 885. Bounty. Distinguished, Decker 
 V. Saltzman, 1 Hun, 421 ; S. C, 39 N. Y., 275. 
 
 Gary v. Cleveland and T. R. R. Co., 29 Barb., 85. 
 Carrier's liability beyond route. Distinguish- 
 ed, Milnor V. N. Y. and N. H. R. R. Co., 68 
 N. Y., 363. 
 
 V. Gregory, 38 N. Y. Supr., 127. Leave 
 
 to appeal refused, id., 666 i 
 
CASES CRITICISED. 
 
 138. 
 
 - V. White, 7 Lans., 1. Reversed, 52 N. Y., 
 
 Case V. CarroU, 35 N. Y., 385. Eight of redemp- 
 tion. Followed, Terrett v. Crombie, 6 Lans., 
 82. Fiduciary relation between attorney and 
 client Approved, Hatch v. Fogerty, 10 Abb. 
 N. S., 147. 
 
 V. Hall, 24 Wend., 102. Defense. Ap- 
 
 proved,'iStocefman v. Prince, 62 Barb! 256. 
 ■ V. Potteir, ^ Johns., 163. Books as evi- 
 
 dence. Distinguished, Burke v. Wolfe, 88 N 
 Y. Supr., 263. 
 
 Cassard v. Hinman, 6 Bosw., 8. Broker. Dis- 
 tinguished, i?owe v. Stevens, 35 N. Y. Supr., 189. 
 
 Cassidy v. City of Brooklyti, 10 Abb N. S., 297 ; 
 60 Barb., 105. Affirmed, 47 N. Y., 659. 
 
 V. Le Fevre, 57 Barb., 313. Affirmed 
 
 except as to recoupment, 45 N. Y., 562. 
 
 Castellanos v. Beauville, 2 Sandf., 670. Costs, 
 two bills. Approved, Lindsay v. Deafendorf, 
 43 How., 90. 
 
 Castle V. Duryea, 32 Barb., 480. Injury by ac- 
 cident. Distinguished, Losee v. Saratoga 
 Paper Co., 42 How., 385. 
 
 V. Noyes, 14 N. Y., 329. Former adjudi- 
 cation. Followed, Hudson v. Smith, 39 N. Y. 
 Supr., 452. 
 
 Caswell V. Davis, 58 N. Y., 223. Trade-mark. 
 FoUowed, Taylor v. Gillies, 59 N. Y, 331. 
 
 Catlin V. Gunter, 11 N. Y., 368. Statutory de- 
 fenses. Approved, Gilchrist v. Gilchrist's 
 Exrs., 44 How., 317. Variance. Followed, 
 Clayes v. Hooker, 4 Hun, 231. 
 
 ^v. Valentine, 9 Paige, 575. Nuisance. Ap- 
 proved, Hutchins V. Smith, 63 Barb., 261. 
 
 Caulkins v. Hellman, 47 N. Y., 449. Acceptance. 
 Followed, Ham v. Van Orden, 4 Hun, 709. 
 Distinguished, Smith v. MilUken, 7 Lans., 336. 
 
 Conssidiere v. Beers, 2 Keyes, 198. Money had 
 and received. Approved, Stephens v. Board of 
 Education, 8 Hun, 712. 
 
 Cazeau v. Mali, 25 Barb., 578. Action by stock- 
 holder. Distinguished, Greaves v. George, 49 
 How., 79. 
 
 Central Bank of Brooklyn v. Hammett, 50 N. Y., 
 158. Transfer of negotiable paper. Dis- 
 tinguished, Colson V. Arnot, 57 N. Y., 253. 
 
 Central Bank of Troy v. Heydorn, 48 N. Y., 260. 
 Followed, Same v. Same, id. 670-1. 
 
 Chaine v. Wilson, 1 Bosw., 673. Non-resident. 
 Approved, Murphy v. Baldwin, 41 How., 262 ; 
 11 Abb. N. S., 407. 
 
 Chamberlain Will case, 43 N. Y., 447, n. Be- 
 quest to charitable corporation. Approved, 
 Wetmore v. Parker, 52 N. Y., 450. 
 
 Chamberlain v. Better, 18N. Y., 115. Indemnity 
 bond. Followed, Home Ins. Co. v. Watson, 59 
 N. Y., 390. Distinguished, S. C, 1 Hun, 643. 
 
 V. Cuyler, 9 Wend., 126. Limitation of 
 
 actions mutual running account. Followed, 
 
 Helens v. Otis, 5 Lans., 137. 
 
 V. Demsey, 9 Bosw., 212. Reversal for 
 
 irregularity. Followed, Stevenson v. Spratt, 
 36 N. Y. Supr., 496. 
 
 • V. Martin, 43 Barb., 607. Chattel mort- 
 
 gage sale. Explained, Ballou v. Cunningham, 
 4 Lans., 74. 
 
 V. Western Trans. Co., 45 Barb., 218. 
 
 Reversed, 44 N. Y., 305. 
 Champion v. Bostwick, 18 Wend., 176. Carrier's 
 
 liability. Approved, Green v. N. Y. Central 
 E. R. Co., 12 Abb. N. S., 473. 
 
 Champney v. Blanchard, 39 N. Y., 111. Gift.' 
 Approved, Whiting v. Barrell, 7 Lansi, 106. 
 
 Chapman v. City of Brooklyn, 40 N. Y., 372. Ass- 
 essment for street improvements. . Approved, 
 Newell V. Wheeler, 48 N. Y., 486. Refunding 
 illegal tax. Approved, Bank of the Common- 
 wealth V. The Mayorfetc, 43 id., 184. 
 
 Chapman v. Fish, 6 Hill, 554. Release by foreign 
 administrator. Approved, Stone v. Scripture, 
 4 Lans., 186. 
 
 V. Gates, 46 Barb., 318. Encroachment 
 
 on highway. Distinguished, Marvin v. Pardee, 
 64 Barb., 353. 
 
 • V. Jenkins, 31 Barb., 164. Surety, rights 
 
 of. Approved, Pinkney v. Pomeroy, 62 Barb., 
 460. 
 
 ■ V. New Haven R. R. Co., 19 N. Y., 841. 
 
 Contributory negligence. Followed, Arctic 
 Fire Ins. Co., v. Austin, 3 Hun, 196. 
 
 ■ V. Rose, 44 How., 364. Reversed, 47 id., 
 
 13. Note obtained by fraud. Distinguished, 
 Fenton v. Robinson, 4 Hun, 252. 
 Chappell V. Skinner, 6 How., 338. Provisional 
 remedies. Distinguished, Rockfard, R. I. and 
 St. Line R. R. Co., v. Boody, 56N. Y., 456. 
 V. Spencer, 23 Barb., 584. Alteration of 
 
 note. Overruled, Card v. Miller, 1 Hun, 604. 
 Chase v. Ewing, 51 Barb., 597. Mortgagor's per- 
 sonal liability. Distinguished, Coleman v. 
 Van Rensselaer, 44 How., 368. 
 
 ■ V. Vandeibilt, 37 N. Y. Supr., 334. De- 
 
 murrer, Followed, Webb v. Same, 39 id., 4. 
 
 Chautauqua Co. Bank v. Risley, 19 N Y., 369 
 Creditor's bill. Approved, Erickson v. Quinn 
 15 Abb. N. S., 166 : 50 N. Y., 697. Dig 
 tinguished, Orr v. Gilmore, 7 Lans., 345. Re- 
 ceiver a trustee. Approved, Elsworth v. Mul- 
 doon, 46 How., 246; 15 Abb. N. S., 440. 
 
 - V. White, 6 N. Y., 236. Creditor'* bill. 
 
 Approved, Erickson v. Quinn, 16 Abb. N. S., 
 166; 50 -N. Y., 697. Deed by referee. Fol- 
 lowed, Dawley v. Brown, 66 Barb., 107. 
 
 Chemung Canal Bank v. Judson, 8 N. Y., 264. 
 Jurisdiction. Followed, Ansonia Brass ^ Cop- 
 per Co. V. New Lamp Chimney Co., 64 Barb., 
 435. 
 
 Chendy v. Arnold, 15 N. Y., 863. Presumption as 
 to foreign laws. Followed, McCitlloch v. Nor- 
 wood, 36 N. Y. Supr., 180. 
 
 Chester v. Comstock, 40 N. Y., 675. False reore- 
 sentations. Followed, Livingstone v. KeecR, 84 
 N. Y. Supr., 547. 
 
 Chester v. Dickerson, 52 Barb., 349. Affirmed, 45 
 How., 826 : 54 N. Y., 1. • 
 
 V. Kingston Bank, 16 N. Y., 336. Parol 
 
 evidence. Criticised, Campbell v. Tate, 7 
 Lans., 370. 
 
 Cheviot V. Brooks, 1 Johns., 364. Carrier's liabil- 
 ity. Approved, Spaids v. New York M. Steamship 
 Co., 3 Daly, 139. 
 
 Childs V. Smith, 38 How., 828; 55 Barb. 45. 
 Reversed, 46 N. Y., 84. 
 
 Chouteau v. Suydam 21 N. Y., 179. Action 
 against executor. Followed, Tradesmens 
 National Bank v. McFeely, 61 Barb., 522. Dis- 
 tinguished, Austin V. Munro, 47 N. Y., 860. 
 
 Christy v. Libby, 5 Abb. N. S., 192. Pleading. 
 Approved, Day v. Stone, 16 Abb. N. S., 137. 
 
CASES CRITICISED. 
 
 XI 
 
 V. Murphy, 12 How., 77. Trade-mark. 
 
 Approved, Reeves v. Denicke, 12 Abb. N. S., 92. 
 ■ V. Newton, 60 Barb., 882. Towns, main- 
 
 taining bridges. Approved, Beckwith v. Who- 
 
 ■ len, 6 Lans., 376.- 
 
 Ctiubbuck V. Vemam, 42 N. T., 482. Questions 
 raised on appeal. Explained, Stoddard v. 
 Whiting, 66 N. Y., 627. 
 
 Church V. Freeman, 16 How., 294. Trial by jury 
 in equitable cases. Approved, Paul v. Par 
 shall, 14 Abb. N. S., 188. 
 
 Church of the Redeemer v. Crawford, 14 Abb. N. 
 S., 200. Reversed, 86 N. Y. Supr., 807. 
 
 V. 5 Bob., 100. AflSrmed, 35 N. Y. 
 
 Supr., 568. 
 
 Cisco V. Roberts, 36 N. Y., 292. Jurisdiction. 
 Approved, Wilson v. Mills, 10 Abb. N. S., 
 148. Pilot act. Distinguislied, Gillespie v. 
 Zittlossen, 60 N. Y., 449. 
 
 City Bank v. Bangs, 2 Paige, 570. Reward. 
 Approved, Fargo v. Arthur, 43 How., 198. 
 
 Claflin v. Farmers and Citizens Bank, 25 N. Y., 
 293. Agent certifying in his own favor. Dis- 
 tinguished, Titus V. President, etc. of Great 
 Western Turnpike Co., 5 Lans., 250. Approved, 
 Dabney v. Stevens, 10 Abb. N. S., 39 ; 2 Sweeny, 
 415. 
 
 V. Griffin, 8 Bosw., 689. Pleading. Ap- 
 proved, Commonwealth Bank of Philadelphia v. 
 Pryor, 11 Abb. N. S., 227. 
 
 Clancy v. Byrne, 65 Barb., 344. Reversed, 56 
 N. Y., 129. 
 
 Clapp V. Bromaghim, 9 Cow., 531. Partition. 
 Approved, Beach v. Mayor, etc. of New York, 
 45 How., 357. 
 
 V. Schutt, 44 Barb., 9; 19 Abb., 121 
 
 Affirmed, 44 H. Y., 104. 
 
 Clark's case, 15 Abb., 227. Distribution of sur- 
 plus. Approved, Loucks v. Van Allen, 11 Abb. 
 N. S., 427. 
 
 Clark V. Clark, 25 Barb., 77. Trademark. Ap- 
 proved, Meneely v. Meneely, 1 Hun, 367. 
 
 V. Crego, 47 Barb., 599. Affirmed, 51 N. 
 
 Y., 646. 
 
 V. Dales, 20 Barb., 42. Consideration 
 
 for extension of time. Approved, 'Burt v. 
 Saxton, 1 Hun, 551. 
 
 V. Eighth Ave. R. R Co., 36 N. Y., 135. 
 
 Negligence. Approved, Ward v. Central Park, 
 etc. R. R. Co., 42 How., 289 : 11 Abb. N. S., 
 411 ; 33 N. Y. Supr., 291. 
 
 V. Foot, 8 Johns., 422. Negligence. Fol- 
 
 lowed, Losee v. Buchanan, 51 N. Y., 476. 
 
 ■ V. Miller, 42 Barb.^ 255. Affirmed, 54 N. 
 
 Y., 528, 
 
 V.Norton, 3 Lans., 484; 59 Barb., 169. 
 
 Affirmed, 49 N. Y., 248. Assessment. Fol- 
 lowed, Westfall V. Preston, 49 N. Y., 349. 
 
 • V. Rowling, 8 N. Y., 216. Discharge in 
 
 bankruptcy. Followed, Monroe v. Upton, 50 
 N. Y., 598. Distinguished, Sherman v. Strauss, 
 34 N. Y. Supr., 6. 
 
 ■ V. City of Utica, 18 Barb., 451. Commis- 
 
 sioners to assess damages. Approved, Menges 
 V. City of Albany, 47 How., 244. 
 
 ■ V. Wise, 57 Barb., 416 ; 89 How., 97, 
 
 Reversed, 46 N. Y., 612. 
 Clarke v. Goodrich, 41 N. Y., 210 ; 44 How., 226. 
 Notice in attachment. Explained and follow- 
 ed, O'Brien v. Mechanics and Traders F. Ins 
 
 Co., 44 How., 213 ; 45 id., 453 ; 14 Abb. N. S., 
 314; 36 N. Y. Supr., 111. Distinguished, S., 
 C, 46 How., 429. 15 Abb. N. S., 222. 
 
 • V. Rochester, 24 Barb., 446; 28 N. Y., 605. 
 
 Power of legislature. Approved, Town of 
 Duanesburgh v. Jenkins, 57 N. Y., 177. 
 
 • V. Roch. Lockport and N. F. R. R. Co. 
 
 18 Barb., 360. Judgment. Approved, Wade- 
 man V. Albany and Susquehanna R. R. Co., 51 
 N. Y., 568. 
 
 Clarkson v. Skidmore, 2 Lans., 238. Reversed in 
 part, 46 N. Y., 297. 
 
 Classing v. Met. Fire Department, 1 Sweeny, 224. 
 Liability of fire department. Approved, 
 Woolbridge v. Mayor, etc. of New York, 49 
 How., 67. 
 
 Clayton v. Wardell, 4 N. Y., 230. Evidence of 
 marriage. Examined, Wright v. Wright, 48 
 How., 1. 
 
 Clemens v. Clemens, 87 N. Y., 74 Estoppel by 
 judgment. Distinguished, Bloon\er v, Sturges, 
 58 N. Y., 168. 
 
 Cleveland v. Boerum, 27 Barb., 252. Parties, 
 assignee in bankruptcy. Held applicable 
 under present act, Daly v. Burchell, 13 Abb. N. 
 S., 264. 
 
 V. Eddy, 54 Barb., 54. Pleading statute 
 
 of limitations. Followed, Williams v. Willis, 
 15 Abb. N. S., 11. 
 Clinton V. Hope Ins. Co., 51 Barb., 647 ; Affirmed 
 45 N. Y., 454. Insurance. Distinguished, 
 Steward v. Phmnix F. Ins. Co., 5 Hun, 261. 
 
 46 N. Y., 511. Drainage. Dis- 
 
 tinguished, Waffle V. N. Y. Central R. R. Co., 
 53 id., 11. 
 Clowes V. Dickenson, 8 Cow., 328. Waiver of 
 appeal. Distinguished, Knapp v. Brown, 11 
 Abb. N. S., 118 ; 45 N. Y., 207. 
 
 Hakes, 2 Caines, 885. Ejectment. 
 
 Approved, Stuyvesant v. Grisster, 12 Abb. N. 
 
 S., 6. 
 Coates V. Holbrook, 2 Sandf., 622. Trade marks. 
 
 Approved, Glen and Hall Manuf. Co. v. Hall, 
 
 6 Lans., 168. 
 Cobb V. Cornish, 16 N. Y., 604. Stay of entry of 
 
 judgment. Explained, Alfaro v. Davidson, 39 
 
 N. Y. Supr., 408. 
 
 Cockey v, Hurd, 43 How., 140 ; 12 Abb. N. S., 
 307. Reversed, 36 N. Y. Supr., 42; 45 How., 
 70 ; 14 Abb. N. S., 183. Compulsory affidavit 
 Disapproved, Spratt v. Huntington, 48 How., 
 97 ; 2 Hun, 341. 
 
 Codd V. Rathbone, 19 N. Y., 37. "Waiver. Follow- 
 ed, Williams v. Mechanics and Traders F. Ins. 
 Co., 54 N. Y., 577. 
 
 Codding v. Wamsley, 1 Hun, 585. Affirmed, 60 
 N. Y., 644. 
 
 Coddington v. Bay, 20 Johns., 637. Bona fide 
 holder. Followed, McQuade v. Inman, 89 N. 
 Y. Supr., 396. 
 
 Coffey V. Home Life Ins. Co., 44 How., 481 ; 35 N. 
 Y. Supr., 814. Presumption of sanity. Fol- 
 lowed, Weed V. Mutual Benefit Life Ins. Co., 85 
 N. Y. Supr., 386. 
 
 Coffin V. Coffin, 23 N. Y., 15. Publication of will. 
 Approved, Trustees of Auburn ITieological Sem- 
 inary V. Calhoun, 62 Barb., 381. 
 
 V. Reynolds, 37 N. Y., 642. Servant, 
 
 who is. Explained, Vincent v. Bamford, 42 
 How., 109. 
 Cohen's Will, 1 Tuck., 286. Signatures, place 
 
xu 
 
 CASES CRITICISED. 
 
 of. Approyed, Beady's Will, 15 Abb. N. S., 
 
 211. 
 Cohen T. Guardian Mvt. Life Ins. Co., 50 N. Y., 
 
 610. Life insurance. Followed, Hayner v. 
 
 American Pop. Life Ins. Co., 86 N. Y. Supr., 211. 
 Coit V. Planer, 7 Rob., 413 ; 4 Abb. N. S., 140. 
 
 Afltomed, 51 N. Y., 647. 
 V. Stewart, 12 Abb. N. S., 216 ; 50 N. Y., 
 
 17. Counter claim. Approved, Berrian v. 
 
 Mayor, etc. of New York, 16 Abb. N. S., 207. 
 Cole V. Bell, 48 Barb., 194. Notice of appeal. 
 
 Distinguished, Avery v. Woodbeck, 5 Lans., 
 
 498; 62 Barb., 557. 
 T. Bourne, 10 Paige, 534. Mistake. Dis- 
 tinguished, Bryce v. Lorillard F. Ins. Co., 46 
 
 How., 498. 
 
 ■ V. Sackett, 1 Hill, 516. Release of part- 
 
 ner. Approyed, Vemam v. Harris, 1 Hun, 451. 
 • V. Saulpaugh, 48 Barb., 104. Accommo- 
 
 dation note. Distinguished, Philhrick v. Dallett, 
 43 How., 419; 12 Abb. N. S., 419; 34 N. Y. 
 Supr., 370. 
 
 V. Stevens, 9 Barb., 676. Execution for 
 
 purchase money. Approved, Snyder v. Davis., 
 47 How., 147. 
 
 Colegrave v. New York and N. S. R. R. Co., 20 
 N. Y., 492. Contributory negligence. Fol- 
 lowed, j4rciic .Fire Ins. Co. V. Austin, 3 Hun, 
 195. 
 
 Coleman v. Bean, 32 How., 870. Statutory un- 
 dertaking. Approved, Bildersee v. Aden, 12 
 Abb. N. S., 324. 
 
 -^-^ T. Eyre, 1 Sweeny, 476. Reversed, 45 
 N. Y., 38. 
 
 - v. First National Bank of Elmira, 53 N. 
 
 Y., 390. Rescission for fraud. Followed, Rich 
 V. Niagara Savings Bank, 3 Hun, 481. 
 
 ■ V. People, 1 Hun, 596. AfBrmed, 58 N. 
 
 Y., 555. 
 V. , 55 N. Y., 81. Evidence of 
 
 guilty knowledge. Followed, Copperman v. 
 
 People, 56 N. Y., 591. 
 Collender v. Dinsmore, 64 Barb., 457. Reversed 
 
 55 N. Y., 200. 
 Collier v. Munn, 41 N. Y., 143 ; 7 Abb. N. S., 198. 
 
 Executor's compensation. Applied to guard- 
 ians, Morgan v. Hannas, 13 Abb. N. S., 361. 
 V. Whipple,lS Wend., 225. Setting aside 
 
 sale. Approved, Kellogg v. Eiowell, 62 Barb., 
 
 280. 
 Collins V. Campfield, 9 How., 519. Affidavit for 
 
 substituted service. Distinguished, Simpson 
 
 v. Burch, 4 Hun, 315. 
 V. Collins, 6 Lans., 368. Affirmed, 56 N. 
 
 Y., 668. 
 V. The Mayor, etc., 3 Hun, 680. Public 
 
 officer. Distinguished, Smith v. The Mayor, 
 
 etc., 4 Hun, 644. 
 Colt V. Sixth Ave. R. R. Co., 83 N. Y. Supr., 189. 
 
 Affirmed, 49 N. Y., 671. 
 
 Columbia Ins. Co. v. Force, 8 How., 853. Waiver 
 of privilege. Approved, Farmer v. Bobbins, 47 
 How., 414. 
 
 V. Stevens, 87 N. Y., 636. Costs, liability 
 
 •for. Approved, Reade v. Waterhouse, 12 Abb. 
 N. S., 255. 
 
 Commerdfd Bank of Albany y. Canal Commission- 
 ers, 10 Wend., 25. Mandamus. Approved, 
 People ex rel. D. W. and P. R. R. Co. v. Cat- 
 cheUor, 68 N. Y., 128. 
 
 Commercial Bank of Clyde v. Marine Bank, 6 
 
 Abb. N. S., 83. Bona 'fide holder. Approved, 
 
 Philbrick V. Dallett, 48 How., 419 ; 12 Abb. N. 
 
 S.,419;84N.Y. Supr., 370. 
 Commercial Bank of Kentucky v. Varnum, 3 Lans., 
 
 86. Reversed, 49 N. Y., 269. 
 Commercial Warehouse Co. v. Graber, 2 Sweeny, 
 
 638. Affirmed, 45 N. Y., 893. 
 Commissioners of Central Park, Matter of, 50 N. 
 
 Y., 493. Appeal. Distinguished, matter of 
 
 Kingsbridge Road, 4 Hun, 599. 
 Commissioners of Excise v. Taylor, 21 N. Y., 173. 
 
 Excise law. Distinguished, Schwab v. 2'he 
 
 People, 4 Hun, 520. 
 Commissioners of Washington Park, matter of, 56 
 
 N. Y., 144. Discontinuance of proceedings. 
 
 Followed, In matter of Military Parade Ground, 
 
 60 N. Y., 819. 
 Comstock V. Ames, 3 Keyes, 857. Intendment on 
 
 appeal. Approved, Meyer v. Amidon, 46 N. 
 
 Y., 169. 
 Conaughty v. Nichols, 42 N. Y., 83. Pleading, 
 
 Approved. Church of the Redeemer y. Crawford, 
 
 36 N. Y. Supr., 307. Distinguished, Beard y. 
 Yates, 2 Hun, 466. Followed, Ladd v. Arkell, 
 
 37 N. Y. Supr., 85. 
 
 Conderman v. Hicks, 3 Lans., 110. Illegal con- 
 sideration. Distinguished, Grimes v. Hillen- 
 brand, 4 Hun, 354. 
 
 v. Smith, 41 Barb., 404. Sale. Distin- 
 
 guished, Stephens v. Santee, 49 N. Y., 35. 
 
 Condict v. Grand Trunk Ry. Co., 4 Lans., 106. 
 Affirmed, 54 N. Y., 500. 
 
 Conger v. Ring, 11 Barb., 364. Trustee. Fol- 
 lowed, Terwilliger v. Brown, 59 Barb., 9 ; 44 
 N. Y., 237. 
 
 Conhocton Stone Road v. Buffalo, N. Y. 4r Erie R. 
 R. Co., 62 Barb., 890. Reversed, 50 N. Y., 573. 
 
 Conklin, In re, 8 Paige, 450. Costs, on writ de 
 lunatico. Distinguished, Beckwith, -In matter of, 
 3 Hun, 443. 
 
 Conklin v. Conklin, 3 Sandf. Ch., 64. Improve- 
 ments, allowance for. Distinguished, Scott v. 
 Guernsey, 48 N. Y., 106. 
 
 V. Furman, 57 Barb., 484 ; 8 Abb. N. S. 
 
 161 ; Affirmed, 48 N. Y., 527. 
 
 • V. Second National Bank of Oswego, 53, 
 
 Barb., 512, ,.. Affirmed, 45 N. Y., 666. 
 
 -V. Thompson, 29 Barb., 218. Nuisance. 
 
 Approved, Conklin v. Phoenix Mills, 62 Barb., 
 
 299. 
 Conkling v. Gandall, 1 Keyes, 228. Complaint 
 
 on bank check. Followed, Judd v. Smith, 3 
 
 Hun, 190. 
 Connitt V. Reformed Prot. Dutch Church, 4 Lans., 
 
 339 ; Affirmed, 54 N. Y., 561. 
 
 Conrad v. Williams, 6 Hill, 447. Credibility of 
 
 witness. Approved, Stafford v. Leamy, 48 
 
 How., 40 ; 34 N. Y. Supr., 269. 
 Conroy v. Gale, 6 Lans., 344. Canal contractor, 
 
 liability of. Followed, Stack v. Bangs, 6 
 
 Lans., 262. 
 Considerant v. Brisbane, 22 N. Y., 389. Trustee 
 
 of express trust. Followed, ..Davis v. Reynolds, 
 
 48 How., 210. 
 
 Continental National Bank v. Bank of Common- 
 wealth, 50 N. Y., 575. Estoppel in pais, Ap- 
 proved, Marine National Bank v. National City 
 Bank, 36 N. Y. Supr., 470. Followed, Voorhees 
 V. Olmstead, 8 Hun, 744. 
 
CASES CRITICISED. 
 
 xm 
 
 Cottviay V. Starkweather, 1 Denio, 118, Landlord 
 and tenant. Approved, Schuyler v. Smith, 51 N. 
 Y,809. ^i" • ^ 
 
 Cook V. Bidwell, 29 How., 483. Examination of 
 party. Approved, Mudge v. Gilbert, 43 How., 
 219. 
 
 Cook V. Ferrals, 13 Wend., 285. Contract, per- 
 formance. Distinguished, White v. Talmadge, 
 36 N. Y. Supr., 218. 
 
 V. Soule, 46 How., 340. Affirmed, 66 N. 
 
 Y., 420. 
 
 v. Starkweather, 13 Abb. N. S., 400. Trade- 
 mark. Followed, Broibn v. Mercer, 37 N. Y. 
 Supr., 265. 
 
 V. Travis, 20 N. Y., 400. Notice by pos- 
 session. Followed, Staples v. Fenton, 6 Hun, 
 172. 
 
 Cooke V. Millard, 6 Lans., 243. Contract. Ap- 
 proved, Bates V. Coster, 1 Hun, 400. 
 
 V. State National Bank of Boston, 50 Barb., 
 
 839 ; 1 Lans., 494. Affirmed, 52 N. Y., 96. 
 Appealable order. Followed, DeHart v. Hatch, 
 3 Hun, 375. 
 
 Coon V. Knap, 8 N. Y., 402. Evidence to con- 
 tradict receipt. Criticised, Howard y. Norton, 
 65 Barb., 161. 
 
 V. Syracuse ^ Utica R. R. Co., 6 Barb. 
 
 231 ; 5 N. Y., 492. Co-employe. Followed, 
 Boss V. N Y. Central, etcR. R. Co., 5 Hun, 488. 
 
 Cooper T. Gredy, 1 Denio, 358. Libel. Ap- 
 proved, Mare v. Bennett, 48 N. Y., 472. 
 
 Copperman v. People, 1 Hun, 15. Affirmed, 66 
 N. Y., 591, 
 
 Cor6c«v.prard, 3 Bosw., 632. Costs. Overruled, 
 Allis V. Wheeler, 66 N. Y., 50. 
 
 Corcoran v. Judson, 24 N. Y., 106. Damages on 
 injunction. Distinguished, Hovey v. Rubber 
 Tip Co., 12 Abb. N. S., 360 ; 35 N. Y. Supr., 81. 
 
 Com Exchange Ins. Co., v. Babcock, 42 N. Y., 613. 
 Married woman, charging separate estate. 
 Followed, Merchants Bank v. Scott, 59 Barb., 
 641 ; Todd v. Ames, 60 Barb., 454 ; Kidd v. 
 Conway, 66 id., 158 ; Carpenter v. O'Dougherly, 
 50 N. Y., 660. Estoppel. Distinguished, 
 Bogert v. Gulick, 45 How., 385 ; 65 Barb., 322. 
 
 Coming v. Murray, 3 Barb., 652. Priority. Fol- 
 lowed, Greene v. Deal, 4 Hon, 703. 
 
 V. Slosson, 16 N. Y., 294. Oyer and 
 
 Terminer. Distinguished, Shaw v. The People, 
 8 Hun, 272. 
 
 - V. Southland, 3 Hill, 552. Waiver of return 
 
 of execution. Followed, McKinley v. Tucker, 
 6 Lans., 214. 
 
 V. Troy Iron ^ Nail Co., 40 N. Y., 191. 
 
 Mandatory injunction. Followed, Foot v. 
 Branson, 4 Lans., 47. 
 
 Cornwell v. Wooley, 47 Barb., 327. Will, proof of, 
 AfBrmed, 43 How., 475. 
 
 Corwiri v. New York and Erie R. R. Co., 13 N. 
 Y., 49. Liability of railroad company. Fol- 
 lowed, Brady v. Renss. and Saratoga R. R. Co., 
 1 Hun, 378. 
 
 Cosgrooe v. Ogden, 49 N. Y., 258. Master and 
 servant Followed, Hughes v. New York and 
 N. H. R. R. Co., 86 N. Y. Supr., 222. Neg- 
 ligence. Approved, Mullaney v. Spence, 15 
 Abb. N. S., 319. 
 
 Coster V. City of Albany, 62 Barb., 276. Rever- 
 sed in part. 43 N. Y., 399. 
 
 V. Lonllard, 14 Wend., 265. Trust. Dis- 
 tinguished, Beermans v. Robertson, 3 Hun, 464. 
 
 Cottle V. Vanderheyden, 39 How. 289; 56 Barb., 
 
 622. Affirmed, 11 Abb. N. S., 17. 
 Coulter V. American Merchants Union Express Co., 
 
 6 Lans., 67. Reversed, 56 N. Y., 585. 
 
 Courtney v. Baker, 34 N. Y. Supr., 529. Affirmed, 
 
 60 N. Y., 1. 
 Courtright v. Stewart, 19 Barb., 458. Contract. 
 
 Approved, Cooke v. Millard, 5 Lans., 243. 
 Covell V. Tradf^mans Bank, 1 Paige, 131. Sale 
 
 of pledge. Distinguished, McNeil v. Tenth 
 
 National Bank, 46 N. Y., 325. 
 Cowdery v. Coit, 3 Rob., 210. Reversed, 44 N. 
 
 Y., 382. 
 V. Carpenter, 2 Rob., 601. Stay of pro- 
 ceedings. Approved, Woo^ v. Jacobs, 36 N. 
 
 Y. Supr., 408. 
 Cox T. James, 59 Barb., 144. Affirmed, 45 N. Y., 
 
 557. 
 
 - V. McBurney, 2 Sandf., 561. Partnership. 
 
 Followed, Fairchild v. Fairchild, 5 Hun, 407. 
 
 Craft y. Curtiss, 25 How., 163. Execution for 
 purchase-money. Disapproved, Snyder v. 
 Davis, 47 How., 147. 
 
 Cragin v. New York Central R. R. Co., 51 N. Y, 
 61. Restriction of carrier's liability. Fol- 
 lowed, Nicholas V. New York Central ^ Hudson 
 Riv. R. R. Co., 4 Hun, 327. 
 
 Craig y. Parkis, 40 N. Y., 181. Discharge of 
 surety. Distinguished, Field v. Cutler, 4 Lans., 
 195. 
 
 V. Wells, 11 N. Y., 315. Deed. FoUowed, 
 
 Hill V. Priestly, 52 N. Y., 685. Distinguished, 
 Rexford v. Ma/rguis, 7 Lans., 249. 
 
 Cram v. Dresser, 2 Sandf., 120. Defense to ac- 
 tion for rent. Distinguished, Walker v. Shoe- 
 maker, 4 Hun, 579. 
 
 Crandall v. People, 2 Lans., 309. Presumption 
 from prisoner not being sworn. Approved, 
 Rulojf's case, 11 Abb. N. S., 245 ; 46 N. Y., 
 213. Distinguished, Ruloff v. People, 6 Lans., 
 261. 
 
 Crane v. Baudouine, 65 Barb., 260. Reversed, 
 55 N. Y., 266. 
 
 Crary v. Goodman, 12 N. Y., 266. Equitable 
 defense. Distinguished, Cramer v. Benton, 4 
 Lans., 291 j 6b iarb., 216. 
 
 ., 22 N. Y., 170. Adverse pos- 
 
 session. Distinguished, Sands v. Hughes, 63 
 
 N. Y.,286. 
 Craw V. Easterly, 4 Lans., 518. Affirmed, 54 N. 
 
 Y., 679. 
 Crawford v. CoUins, 45 Barb., 269. Vessel, what 
 
 is. Followed, Emmons v. Wheeler, 3 Hun, 545. 
 V. Loper, 25 Barb., 449. Deposition. 
 
 Approved, Goodyear v. Vosburgh, 41 How., 421. 
 . V. Morrell, 8 John., 253. Contract valid- 
 
 ity. Followed, Z)oM) V. Way,6i Barb., 255. 
 
 Creighton v. Ingersoll, 20 Barb., 541. Change of 
 attorneys. Approved, Board of Supervisors y. 
 Brodhead, 44 How. 411. 
 
 Creuse v. Defgnoiux, 10 Barb., 122. New prom- 
 ise. FoUowed, Smith v. Ryan, 39 N. Y. Supr., 
 489. 
 
 Crim V. Cronkhite, 15 How., 250. Costs. Dis- 
 tinguished, Lund V. Brodhead, 41 How., 146. 
 
 Crispell v. Dubois, 4 Barb., 393. Undue influence. 
 Followed, Krime v. Johnson, 60 Barb., 69. 
 
 Crist V. Armour, 34 Barb., 378. Contract, per- 
 formance. Followed, White v. Talmadge, 35 
 N. Y. Supr., 218. 
 
XIV 
 
 OASES CRITICISED. 
 
 Orocheron v. North Shari L. Id. Ferry Co., 56 N. 
 Y., 656. Negligence. Distinguished. Cleveland 
 T. N. J. Steamboat Co., 5 Han, 523. ' 
 
 Crocker v. Crane, 21 Wend., 211. Clieoks on 
 stock subscription. Distinguislied, Syracuse, 
 etc, R. R. Co., V. Gere, i Hun, 392. 
 
 Cro/ut V. Brandt, 13 Abb. N. S., 128. Affirmed, 
 46 How., 481 ; 47 id., 263. 
 
 Croghan v. Livingston, 17 N. Y., 218. Guardian 
 ad litem. Explained, McMurray v. McMurray, 
 41 How., 41. 
 
 Croohshank v. Burrell, 18 John., 18. Contract. 
 Followed, Higgins v. Murray, 4 Hun, 565. 
 Statute of frauds. Followed, Ferren y. O'Hara, 
 62 Barb., 517; Passaic Manuf. Co. v. Hoff- 
 man, 3 Daly, 495. 
 
 Cropsey v. Ogden, 11 N. Y., 228. Invalidity of 
 prohibited marriage. Followed, Marshall v. 
 Marshall, 48 How., 57 ; 2 Hun, 238. 
 
 Cross V. O'Donnell, 44 N. Y., 661. Sale and de- 
 lirery. Explained, Brewster v. Taylor, 39 N. 
 Y. Supr., 159. 
 
 Crounce y. Fitch, 6 Abb. N. S., 185. Contradict- 
 ing cross-examination. Distinguished, New- 
 berry T. Fumival, 46 How., 139. 
 
 Cruger v. Dougherty, 1 Lans., 464. Taxes, assess- 
 ment of. Affirmed 43 N. Y., 107. 
 
 v. Hudson Riv. R R. Co.., 12 N. Y., 190. 
 
 Commissioners to assess damages. Approved, 
 Menges v. City of Albany, 47 How., 244. Ma- 
 jority may act. Approved, In matter of widen- 
 ing of Broadway, 63 Barb., 572. Jury. Fol- 
 lowed, Astor V. Mayor, etc. of New York, 37 N. 
 Y. Supr., 539. 
 
 Cuff V. Borland, 55 Barb., 481. Reversed, 57 N. 
 Y., 560. 
 
 Culver V. Avery, 7 Wend., 884. Setting aside 
 verdict. Approved, Morss v. Sherrill, 63 Barb., 
 21. 
 
 V. Sisson, 3 N. Y., 264. Mortgagor's per- 
 sonal liability. Approved, Coleman v. Vim 
 Rensselaer, 44 How., 868. 
 
 Cummings v. Egerton, 9 Bosw., 684. Costs, lia- 
 bility for. Approved, Reade v. Waterhouse, 12 
 Abb. N. S., 255. 
 
 Currie v. White, 1 Sweeny, 166 ; 7 Rob., 637 ; 37 
 How., 384. Reversed, 45 N. Y., 822. 
 
 Curtis V. Brooks, 37 Barb., 476. Note in consid- 
 eration of marriage. Criticised, Wright v. 
 Wright, 59 Barb., 505. 
 
 V. Deavitt, 15 N. Y., 195. Bona fide pur- 
 chaser. Followed, Rhodes v. Dymock, 33 N. Y. 
 
 ■ Supr., 141. 
 
 V. Engel, 2 Sandf. Ch., 287. Married 
 
 woman. Approved, Qiiassaic Nat. Bank of 
 Neuiburgh v. Waddell, 1 Hun, 125. 
 
 V. Haweil, 89 N. Y., 214. Rescission for 
 
 fraud. Followed, Rich v. Niagara Savings 
 Bank, 3 Hun, 481. 
 
 V. Leavitt, 15 N. Y., 14. Action on illegal 
 
 contract. Distinguished, Saratoga County 
 Bank v. King, 44 N. Y., 87. Lex loci. Fol- 
 lowed, Hildreth v. Shepard, 65 Barb., 265. 
 
 V. Rochester and Syracuse R. R. Co., 18 
 
 N. Y., 534. Damages. Followed, Matteson v. 
 New York Central R R. Co., 62 Barb., 364. 
 
 Cushman v. Horton, 1 Hun, 601. Modified, 59 
 N. Y., 149. 
 
 Cutler V. Wright, 22 N. Y., 472. Hearing on ap- 
 peal. Disapproved, Prouiy v. Michigan .South- 
 em and N. Ind. R. R. Co., 1 Hun, 666. < 
 
 Dabney v. Stevens, 10 Abb. N. S., 89 ; 2 Sweeny, 
 415 : Affirmed, 46 N. Y., 681. 
 
 Davis V. Prosser, 32 Barb., 291. Levy on ex- 
 empt property. Approved, Twinam v. Swart, 
 4 Lans., 263. 
 
 Dale v. Brooklyn City, etc., R. R Co., 1 Hun, 146. 
 Affirmed, 60 N.Y:, 638. 
 
 — V. Radcliffe, 25 Barb., 888. Waiver by 
 
 giving bail. Distinguished, Knickerbocker Life 
 Ins. Co. V. Ecclesine, 42 How., 201 ; 11 Abb. N. 
 S., 385 ; 34 N. Y. Supr., 76. 
 
 ■ V. Roosevelt, 5 John. Ch., 174. Rescission 
 
 of contract. Followed, Hammond v. Pennock, 
 
 5 Lans., 358. 
 Darby v. Condit, 1 Duer, 599 ; 11 N. Y. Leg. Obs., 
 
 154. Security for costs. Approved, Nash v. 
 
 Douglass, 12 Abb. N. S., 185. 
 Darlington v. Mayor, etc. of New York, 31 N. Y., 
 
 164. Law imposing tax. Approved, People 
 
 ex rel. New York Sf Harlem R. R. Co. v. Have- 
 
 meyer, 47 How., 494. 
 DarnaU v. Moorehouse, 36 How., 511. Reversed, 
 
 45 N. Y., 64. 
 Dart V. Ensign, 2 Lans., 383. Reversed, 47 N. 
 
 Y, 619. 
 Darwin v. Potter, 5 Denio, 306. Consequential 
 
 damages. Approved, Flynn v, Hatton,AS How., 
 
 333; 4 Daly, 552. 
 Dash V. Van Kleeck, 7 Johns., 477. Retrospective 
 
 laws. Approved, People v. Supervisors of Ulster 
 
 Co., 68 Barb., 83. 
 Davenport v. Ferris, 6 Johns., 181. Relief from 
 
 default. Approved, Security Banl^ of N. Y. 
 
 City V. Nat. Bank of the Commonwealth, 48 
 
 How., 135; 2 Hun, 287. 
 V. Ruckman, 37 N. Y., 568. Negligence. 
 
 Followed, Whalen v. Gloucester, 4 Hun, 24. 
 Davidson V. Seymour, 1 Bosw., 88. Contract, 
 
 validity. Approved, Pease v. Walsh, 39 N. Y 
 
 Supr., 514 ; 49 How., 269. 
 Davis V. Bemis, 40 N. Y., 453, note. Statutory 
 
 construction. Distinguished, Verona Central 
 
 Cheese Factory v. Murtaugh, 4 Lans. 17. 
 
 V. Gwynne, 4 Daly, 218. Affirmed, 57 N. 
 
 Y., 676. 
 V. Lambertson, 56 Barb., 480. Relief in 
 
 action for nuisance. Approved, Hutchins v. 
 
 Smith, 63 Barb., 261. 
 V. Mayor, etc, of New York, 14 N. Y., 506. 
 
 Nuisance. Distinguished, Delaware and Hud- 
 son C. Co., 2 Hun, 163. 
 V. Newkirk, 5 Duer, 95. Indemnitor's Ua/- 
 
 bility. Distinguished, Chapman v. Douglass, 
 
 15 Abb. N. S., 421. 
 
 V. Shields, 26 Wend., 354. Statute of 
 
 frauds. Followed, Kuhn v. Brmon, 1 Hun, 244. 
 Davone r. Fanning, 2 John. Ch., 257. Trustee. 
 
 Followed, Terwilliger v. Brown, 59 Barb., 9 ; 
 
 44 N. Y., 287. 
 Dawson v. Horan, 51 Barb., 459. Right of trial 
 
 by jury. Followed, Knight v. CampAeld, 62 
 
 Barb., 16. 
 Day V. Pool, 63 Barb., 506. Affirmed, 52 N. Y., 
 
 416. Sale with warranty. Followed, Dounce 
 
 V. Dow, 67 N. Y., 16 ; Gumey v. Atlantic and 
 
 Great W. Ry. Co., 68 N. Y., 858. 
 Dean v. Eldridge, 29 How., 218. Action. Fol- 
 lowed, Lane v. Salter, 51 N. Y., 1. 
 V. Hall, 17 Wend., 214. Bills and notes, 
 
 indorsement. Distinguished, PAefcs v. Vischer. 
 
 50N. Y., 69. B . /- 
 
CASES CRITICISED. 
 
 XV 
 
 Dms V. Wandell, 1 Hun, 120. Affirmed, 59 N. 
 Y., 686. 
 
 De Caters v. De Chaumont, 8 Paige, 179. Trus- 
 tee. Followed, Terwilliqer v. Brown, 69 Barb., 
 9; 44N. Y., 237. 
 
 Decker v. Saltzman, 1 Hun, 421. Affirmed, 59 N. 
 Y.,275. 
 
 Dedericks v. Richley, 10 Wend., 108. Eeference. 
 Approved, De Graff v. Mackinleu, 38 N. Y. 
 Supr., 203. 
 
 De Cfraw v. Elmore, 50 N. Y., 1. Pleading. Ap- 
 proved, Berrian v. Mayor, etc., of New York, 15 
 Abb. N. S., 207. '>''■' 
 
 Delafield v. Parish, 25 N. Y., 9. Testamentary 
 
 capacity. Followed, Forman v. Smith, 7 Lans., 
 
 443. Kinne v. Johnson, 60 Barb., 69. 
 V. Union Ferry Co of Brooklyn, 5 Rob., 
 
 207. Affirmed, 51 N. Y., 671. 
 Delamater v. The People, 5 Lans., 332. Prisoner 
 
 a witness. Followed, Newman v. The People, 
 
 6 Lans., 460 ; 63 Barb., 630. 
 Delancu. v. Brett, 4 Rob., 712. Affirmed, 51 N. 
 
 Y., 78. 
 Delaware, Lack. ^ W. R. R. Co. v. Boims, 36 N. 
 
 Y. Supr., 126. Reversed, 58 N. Y., 573. 
 
 Deming v. Puleston, 33 N. Y. Supr., 236. Trustees 
 holding over. Followed, Reed v. Keese, 37 N. 
 Y. Supr., 269. 
 
 V. , 35 N. Y. Supr., 309. Affirmed, 
 
 55 N. Y., 655. Liability of trustees of corpo- 
 ration. Followed, Jones v. Barlow, 38 N. Y. 
 Supr., 142. 
 
 De Mott V. Starkey, 31 Barb. Ch., 403. Bona fide 
 purchaser. Followed, Spicer v. Waters, 65 
 Barb., 227. 
 
 De Peyster v. Sun Mut. Ins. Co., 19 N. Y., 272. 
 Marine insurance. Approved, Wallerstein v. 
 Columbian Ins. Co., 44 N. Y., 204. 
 
 De Pol V. Sohlke, 7 Rob., 280. Injunction. Dis- 
 tinguished, Daly V. Smith, 38 N. Y. Supr., 154. 
 
 Derby v. Hammon, 15 How., 82. Appellant must 
 show error. Avery v. Woodbeck, 5 Lans., 498 ; 
 62 Barb., 557. 
 
 De Rivifinoli v. Corsetti, 4 Paige. 264. Injunction. 
 Distinguished, Daly V. Smith, 38 N. Y. Supr., 
 154. 
 
 De Ruyter v. Trustees of St, Peter's Church, 3 
 Barb. Ch., 119. Statutes as to reUgious corpo- 
 rations. Approved, Mad. Ave. Bapt. Ch. v. 
 Bapt. Ch. in Oliver St., 11 Abb. N. S., 132 ; 46 
 N. Y., 131. 
 
 Despard v. Walbridge, 15 N. Y., 374. Tenant 
 holding over. Followed, Mack v. Burt, 5 
 Hun, 28. 
 
 De Vancene, in re, 31 How., 289. Local Statutes. 
 Distinguished, People v. Supervisors, 43 N. Y., 
 10. 
 
 Devin v. Devin, 17 How., 515. Action by mar- 
 ried woman. Approved, Adams v. Curtis, 4 
 Lans., 164. 
 
 Devlin v. Brady, 36 N. Y., 581. Bonajide holder. 
 Approved, Coleman v. Lansing, 4 Lans., 70. 
 
 Devlin v. Crary, 1 Hun, 489. Affirmed, 60 N. Y., 
 
 638. 
 Devoe v. Brandt, 58 Barb., 493. Reversed, 58 N. 
 
 Y., 462. 
 
 De Witt V. Buchanan, 54 Barb., 82. Jurisdiction 
 
 of injuries committed out of State. Followed, 
 
 Newman v. Goddard, 48 How., 363; 3 Hun, 70. 
 
 V. Morris, 18 Wend., 497. Estoppel. Ap- 
 
 proved, Talcott V. Beldiilb, 46 How., 419 ; '86 
 N. Y. Supr., 84. 
 
 ■ V. Walton, 9 N. Y., 571. ■ Principal when 
 
 bound. Distinguished, Green v. Skeel, 2 Hun, 
 485 ; Hildebrant v. Crawford, 6 Lans., 502. 
 
 Dexter v. Norton, 55 Barb., 272. Affirmed, 47 
 N. Y., 62. Damages. Distinguished, Booth v. 
 Spuyten Duyvil, R. M. Co., 60 N. Y., 487. 
 
 Deyo V. Rood, 3 Hill, 527. Penal actions. Dis- 
 tinguished, Fisher v. New York Cent. ^ Hud. 
 Riv. R. R. Co., 46 N. Y., 644. Pleading. Ap- 
 proved, Roediger v. Simmons, 14 Abb. N. S., 
 256. 
 
 Dickens v. New York Cent. R. R. Co., 23 N. Y., 
 158. Husband and wife. Approved, Drake 
 V. Gilmore, 52 N. Y., 389. 
 
 Dickinson v. Benham, 19 How,, 410. Motion pa- 
 pers. Followed, Rowtes v. Hoare, 61 Barb., 
 266. 
 
 Dickerson v. Wason, 54 Barb., 230. Reversed, 
 47 N. Y., 489. Bank lien on collection paper. 
 Limited, Dod v. Fourth National Bank, 59 
 Barb., 265. 
 
 Dillinghamv. Bolt, 87 N. Y., 198. Refiling chat- 
 tel mortgage. Followed, Patterson v. Gillies, 
 64 Barb., 663 ; Stockham v. Allard, 2 Hun, 67. 
 Explained, Porter v. Parmley, 43 How., 445 ; 
 34 N. Y. Supr., 398 ; 13 Abb. N. S., 104. 
 
 Dillon V. Andrews, 43 N. Y., 237. Breach of 
 contract, duty of party injured as to damages. 
 Followed, Polk v. Daly, 14 Abb. N. S., 156 : 4 
 Daly, 411. 
 
 Dimon v. Hazard, 32 N. Y., 65. Rights of part- 
 ners. Followed, Cary v. Long, 2 Sweeny, 491. 
 
 Dinehart v. Wells, 2 Barb., 432. Costs. Follow- 
 ed, LilUs V. 0' Conner, 49 How., 497. 
 
 Dinning v. N. Y. Sr N. H. R. R. Co., 49 N. Y., 
 546. Carrier, liability for baggage. Distin- 
 guished, Mattison v. New York Cent. R. R. Co., 
 67 N. Y., 552. 
 
 Dinsmore v. Duncan, 4 Daly, 199. Reversed, 57 
 N. Y., 578. 
 
 Dix V. Van Wyck, 2 Hill, 522. Usury. Fol- 
 lowed, Carow V. Kelly, 59 Barb., 289. 
 
 Dobb V. Halsey, 16 John., 88. Sale by partner 
 on private debt. Followed, Gerry v. Cockrofi, 
 34 N. Y. Supr., 146. 
 
 Dodge V. Wellman, 48 How., 427. Absolute con- 
 veyance, when a mortgage. Approved, Carr 
 V. Carr, 52 N. Y., 251, 
 
 Doe V. Roe, 1 Wend, 541. Construction of will. 
 Approved, Sharp v. Dimmick, 4 Lans., 496. 
 
 Doelluer v. Tynan, . 38 How., 176. Nuisance. 
 Distinguished, Hutchins v. Smith, 63 Barb,, 
 251. 
 
 Dole V. Bull, 2 John. Cas., 239. Bond taken by 
 public officer. Distinguished, Richardson v. 
 
 . Crandall, 48 N. Y., 348. 
 
 Donahue v. Henry, 4 E. D. Smith, 162. 'Counter- 
 claim. Distinguished. Chambovet v. Cagneu, 
 41 How., 125; 10 Abb. N. S., 31; 2 Sweeny, 
 378. 
 
 Donovan r. The Mayor, etc., 33 N. Y., 291. Mu- 
 nicipal corporation. Distinguished, Quin v. 
 The Mayor, etc., 44 How,, 266, 
 
 V. Willson, 26 Barb., 138. Statute of 
 
 frauds. Followed, Ferren v. O'Hara, 62 
 Barb., 517. 
 
 Doolittle V. Lewis, 7 John. Ch., 45. Foreign ad- 
 ministrator, power of. Explained, Stone v. 
 Scripture, 4 Lans,, 186, 
 
XVI 
 
 OASES CRITICISED. 
 
 — '■ — V. Supervisors,^8 N. T., 155. Enjoining 
 illegal acts by officers. Approved, Burch v. 
 Cavanaugh, 12 Abb. N. S., 410. Followed, 
 Ddaware ^ Hud. Canal Co. v. Lawrence, 2 
 Hun, 163 ; Phelps v. City of Watertoum, 61 
 Barb., 121 ; Ayres v. Lawrence, 63 Barb., 454. 
 
 Doran v. Dempsey, 1 Bradf., 490. Attachment 
 to enforce surrogate's decree. Distinguished, 
 Timpson's Estate, 16 Abb. N. S., 230. 
 
 Dorr V. N. J. Steamboat Co., 11 N. Y., 485. Lim- 
 itation of carrier's liability. Followed, Fibel 
 T. Livingstone, 64 Barb., 179. 
 
 Dorris v. Sweeny, 64 Barb., 636. Affirmed, 60 
 N. T., 463. Stockholder. Distinguished, 
 Dorris v. French, 4 Hun, 292. 
 
 Doty V. Brown, 4 N. Y., 73. Former adjudica- 
 tion approved, .Tohnson v. Albany If Susq. R. R. 
 Co., 5 Lans., 222. Followed, Hudson r. Smith, 
 39 N. Y. Supr., 452. 
 
 V. Miller, 43 Barb., 529. Broker, commis- 
 sions. Followed, Beebe v. Ranger, 35 N. Y. 
 Supr., 452. 
 
 Doubleday v. Kress, 50 N Y., 410. Payment to 
 agent Followed, Wardrop v. Dunlop, 1 Hun, 
 325. 
 
 V. Supervisors of Broome, 2 Cow., 533. 
 
 Compensation to officer. Fxplained, Crofut 
 V. Brandt, 47 How., 263. 
 
 Dougan v. Champlain Trans. Co., 6 Lans., 430. 
 Affirmed, 57 N. Y., 1. Evidence of negligence. 
 Distinguished, Westfall v. Brie Railway Co., 5 
 Hun, 75 ; Cleveland v. New Jersey Steamboat 
 Co., 5 Hun, 523. 
 
 Doughty v. Brill, 36 Barb., 488 ; 8 Keyes, 612. 
 Encroachment on highway. Followed, Mar- 
 vin v. Pardee, 64 Barb., 853. 
 
 Douglass, Matter of, 40 How., 201 ; 9, Abb. N. S., 
 84; 58 Barb. 174. Reversed, 12 Abb. N. S., 
 161 ; 46 N. Y., 42. Notice, pubUcation of. 
 Followed, In Matter ofAgnew, 4 Hun, 435. Lo- 
 cal assessments in New York. Approved, In 
 re Astor, 50 N. Y., 863. 
 
 Doupe V. Genin, 1 Sweeny, 25; 37 How., 5. Affirm- 
 ed, 45 N. Y., 119. Damages, neglect to re- 
 pair. Distinguished, Flynn v. Satton, 43 How., 
 333; 4 Daly, 552. 
 
 Dowdney v. Mayor, etc. of New YbrS, 4N. Y., 186. 
 Lien of assessments. Followed, De Peyster v. 
 Murphy, 39 N. Y., Supr., 255. 
 
 Downer v. Eggleston, 15 Wend, 51. Set off. 
 Distinguished, Gvtehess v. Daniels, 49 N. Y., 
 605. 
 
 Downesv. Phoenix Bank, 6 Hill., 297. Waiver by 
 appearance. Followed, Boot v. Great West. 
 By. Co., 65 Barb., 619. 
 
 Downs V. Boas, 23 Wend., 270. Statute of 
 frauds. Disapproved, Passaic Manuf. Co. v. 
 Hoffman, 3 Daly, 495. 
 
 Dowes V. Greene, 24 N. Y., 638. Delivery order.' 
 Distinguished, Mechanics and Traders Bank 
 V. Far. and Mechs. Bank, 60 N. Y, 40. 
 
 Drake v. Goodridge, 41 N. Y., 210. Notice in 
 attachment. Distirfguished, O'Brien v. Me- 
 chanics and Traders F. Ins. Co., 46 How., 
 429; 16 Abb. N. S., 222. 
 
 V. Hudson Riv. R. R. Co., 7 Barb., 508. 
 
 Eights of public in streets. Apptovedj Tre- 
 nor T. Jackson, 46 How., 889 ; 16 Abb. N. S., 
 116. 
 
 Draper v. Beers, 17 Abb., 168. Motion to vacate 
 order of arrest. Distinguished, .Svans v. Holms, 
 46 How., 515. 
 
 Dresser v. Dresser, 85 Barb., 573. Contract 
 FoUowed, Kent v. Kent, 1 Hun, 529. 
 
 Driscoll V. West Bradley, etc. Manuf. Co., 36 N. 
 Y. Supr. Affirmed, 59 N. Y., 96. 
 
 Duanesburgh, Town of v. Jenkins, 46 Barb., 294. 
 Action by town. Approved, People ex rel. 
 Youmans v. Wagner, 7 Lans., 469. Overruled, 
 57 N. Y., 177. 
 
 Dubois V. Baker, 80 N. Y., 355. Comparison of 
 handwriting. Followed, Frank V; Chemical 
 National Bank, 37 N. Y. Supr., 26. 
 
 Dudley v. Mayhew, 3 N. Y., 9. Jurisdiction of 
 state courts. Distinguished, Cook r. Whipple, 
 55 N. Y., 150. Followed, Hovey v. Rubber Tip 
 Pencil Co., 33 N. Y. Supr. 522, 57 N. Y., 
 119. Distinguished,, OHh^t v. Crawford, 46 
 How., 222. Remedy," election of. Approved. 
 Berrian, Matter of, 44 How., 216. Statutory 
 remedy, Smith v. City of Albany, 7 Lans., 14. 
 
 Duff, In matter of, 41 How., 350. Appealable 
 order. Followed, Rathbun v. Ingersoll, 84 N. Y. 
 Supr., 211. 
 
 Duffy V. Lynch, 36 How., 509. Examination of 
 party. Approved, Winston v. English, 44 How., 
 398. 
 
 V. O'Donovan, 46 N. Y., 223. Specific 
 
 performance. FoUowed, Hubbdl v. Van Schem- 
 ing, 49 N. Y., 326. 
 
 ■ V. The People, 6 Hill, 75. Constitutional 
 
 law. Approved, People v. McCarthy, 45 How., 
 
 97. 
 Duncan v. Berlin, 5 Rob., 457. Reversed, 35 
 
 N. Y., Supr. 567. 
 Dung V. Parker, 8 Daly, 89. Reversed, 62 N. Y., 
 
 494. Action for fraud. Followed, Rice r. 
 
 Manley, 2 Hun, 492. 
 Dunham v. Sage, 5 Lans., 451. Reversed, 52 
 
 N. Y., 229. 
 Dunlap V. Richards, 2 E. D. Smith, 181, Broker. 
 
 Distinguished, Rowe v. Stevens, 35 N. Y. Supr., 
 
 189. 
 Dunlop V. Patterson, 5 Cow., 243. Credit of wit- 
 ness. Questioned, Warren v. Haight, 62 Barb., 
 
 490. 
 Dunn V. The People, 29 N. Y., 523. Credibility 
 
 of witness. Approved, White v. McLean, 47 
 
 How., 193. Followed, Warren v. Haight, 62 
 
 Barb., 490. 
 Durst V. Burton, 2 Lans., 137. Affirmed, 47 N. Y., 
 
 167. 
 Dusenbury v. Hoyt, 45 How., 147. Affirmed, 4 
 
 Abb. N. S., 132 ; 36 N. Y. Supr., 94. Reversed, 
 
 53 N. Y., 521. 
 Dunstan v. McAndrew, 10 Bosw., 180. Affirmed, 
 
 44 N. Y., 72. Damages. Followed, Schoon- 
 
 maker v. Rouse, 1 Hun, 611. 
 Dutch V. Mead, 86 N. Y. Supr., 427. Affirmed, 
 
 59 N. Y., 628. 
 Dutch Ref. Church of Albany v. Bradford, 8 Cow., 
 
 467. Conclusiveness of decisions of church 
 
 judicatories. Followed, Connitt v. Reformed 
 
 Prot. Dutch Ch., etc., 4 Lans., 839 ; 54 N. Y., 551. 
 Duvall V. Eng. Ev. Lutheran Ch. of St. James, 85 
 
 N. Y. Supr., 505. Affirmed, 58 N. Y., 500. 
 Dwight V. St. John, 25 N. Y., 203. Reference. 
 
 Followed, In matter ofBohm, 4 Hun, 558. 
 Dyeti v. Pendleton, 8 Cow, 825. Waiver of ap- 
 peal. Distinguished, Knapp -7. Brown, 11 Abb., 
 
 N. S. 118; 45N. Y;,207. 
 Dygert v. Bradley, 8 Wend., 469. Negligence. 
 
 Approved, Losee v. Buchanan, 51 N. Y., 476. 
 
CASES CRITICISED. 
 
 xvu 
 
 V. Crane, 1 Wend., 534. Action against 
 
 slieriff. Followed, Nelson v. Kerr, 59 N. Y., 
 224. 
 Dyke V. Erie Railway Co., 45 N.T., 113. Dam- 
 ages. Followed, Lyons v. Erie Railway Co., 
 57 N. Y., 489. 
 
 Dykers v. Leather Manaf. Bank, 11 Paige, 012. 
 Memorandum check. Distinguished, Turn- 
 hdl V. Osborne, 12 Abb. N. S., 200. 
 
 Eadie v. Slvmmon, 26 N. Y., 9. Life insurance, 
 benefit of wife. Followed, Barry v. Equitable 
 Life Ass. Society, 54 N. Y., 687. Married 
 woman's separate estate. Distinguished, 
 Lmmis v. Rack, 14 Abb. N. S., 385. 
 
 Eagar, Matter of, 41 How., 107 ; 58 Barb. 557 ; 
 10 Abb. N. S., 229. Affirmed, 12 Abb. N. S., 
 151 ; 46 N. Y., 100. 
 
 Eager v. Albany Mut. Ins. Co., 5 Denio, 326. In- 
 surance. Followed, Shoemaker v. Glen Falls 
 Ins. Co., 60 Barb., 84. 
 
 Earl V. Camp, 16 Wend., 562. Execution, pro- 
 tection of. Kxplained, Clearwater v. Brill, 4 
 Hun, 728. 
 
 Earle v. Cadmus, 2 Daly, 237. Carrier, construc- 
 tion of contract. Approved, Wetxell v. Dins- 
 more, 4 Daly, 193. 
 
 Earl of Craven v. Price, 37 How., 16. Costs. 
 Followed, Turner y. Van Riper, 43 How., 33. 
 
 Ease Riv. Bank v. Butterjield, 45 Barb., 476 ; 30 
 How., 444. Affirmed, 60 N. Y., 637. 
 
 T. Kennedy, 4 Keyes, 279. Appeal. Ex- 
 tended, Wright v. Hunter, 46 N. Y., 409. 
 
 Eastwood's case, 3 Park, 25. Misbehavior of 
 jury. Explained, People v. Montgomery, 13 
 Abb., N. S., 207. 
 
 Eaton V. Aspinwall, 19 N. Y., 119. Defense. Fol- 
 lowed, Aspinwall v. Sacchi, 67 N. Y., 334. 
 
 Eckert V. Long Island R. R. Co., 67 Barb., 555. 
 Affirmed, 43 N. Y., 502. 
 
 Eckstein v. Frank, 1 Daly, 334. Liability of in- 
 fant for fraud. Approved, Schunemann v. Para- 
 dise, 4 How., 426. 
 
 Edgell V. Hart, 9 N. Y., 213. Chattel mortgage. 
 Followed, Mittnacht v. Kelly. 46 How., 467 ; 
 Yates V. Olmsted, 65 Barb., 43. 
 
 Edwards v. Bodine, 11 Paige, 224. Damages on 
 injunction. Distinguished, Hovey v. Rubber 
 Tip Co., 12 Abb. N. S., 860 ; 85 N. Y. Supr., 81. 
 
 _ V. Lent, 8 How., 28. Denial of informa- 
 tion. Followed, Lloyd v. Burns, 38 N. Y. Supr., 
 423. 
 
 Ehle V. Quackenbuss, 6 Hill, 538. Issue of title. 
 Followed, Powers v. Conroy, 47 How., 84. 
 
 Elliott V. Cronk's Administrators, 18 Wend., 35. 
 Action against public officers, local. Ap- 
 proved, People V. Tweed, 13 Abb., N. S., 419. 
 
 V. Wood, 53 Barb., 286. Affirmed in part, 
 
 45 N. r., 7L 
 
 Ellis V. Albany City F. Ins. Co., 4 Lans., 433. 
 Affirmed, 50 N. Y., 402, Parol agreement to 
 insure. 'Eo\\oyieA,AngellY. Hartford F. Ins. Co., 
 59 N. Y., 174. 
 
 V. People, 21 How. 356. Comparison of 
 
 handwriting. Approved, Frank v. Chemical 
 National Bank, 37 N. Y., Supr., 26. 
 
 Elmendarf v. Harris, 23 Wend., 628. Arbitra- 
 tion. Approved. Day v. Hammond, 67 N. Y., 
 479. 
 
 V. Lockwood, 4 Lans., 393. Affirmed, 57 
 
 N Y., 322. 
 
 Elmer v. Oakley, 3 Lans., 84. Usury. Followed, 
 
 Van Buren v. Stokes, 1 Hun, 434. 
 Elmore v. Jagues, 2 Hun, 130. Beversed, 60 
 
 N. Y., 610. 
 
 y. Sands, 54 N. Y., 612. Limitation of 
 
 use of railroad ticket Followed, Wentz v. Erie 
 
 Railway Co., 3 Hun, 241. 
 Etwell V. McQueen, 10 Wend., 519. Nonsuit 
 
 Approved, Blum v. Hartman, 3 Daly, 47. 
 Elwood V. Gardner, 10 Abb. N. S., 238 ; 45 N. Y., 
 
 349. Explained and distinguished. Church of the 
 
 Redeemer v. Crawford, 14 Abb. N. S., 200. 
 
 Pleading. Followed, Graves v. Waite, 58 N. Y., 
 
 166. 
 Ely V. Adams, 19 Johns., 313. Directing verdict 
 
 subject to opinion of general term. Followed, 
 
 WUcox V. Hoch, 62 Barb., 609. 
 V. Camley, 19 N. Y., 496. Refiling chattel 
 
 mortgage. Explained, Porter v. Parmley, 43 
 
 How., 445; 34 N. Y. Supr., 398. 
 • V. Cooke, 28 N. Y., 373. 
 
 Set off. Fol- 
 lowed, Perry v. Chester, 36 N. Y. Supr., 328. 
 
 V. Holton, 16 N. Y., 595. Amendatory 
 
 act, effect of. Followed, Moore v. Mansert, 5 
 Lans., 173; 49 N. Y., 332. 
 
 V. Rochester Citij, 26 Barb., 134. Com- 
 pensation indirect injury. Followed, Swett v. 
 City of Troy, 12 Abb., N. S., 100 ; 62 Barb., 630. 
 
 Emerson v. Parsons, 2 Sweeny, 447. Affirmed, 
 46 N. Y., 560. 
 
 V. Spicer, 55 How., 428 ; 38 How., 14. 
 
 Affirmed, 46 N. Y., 694. 
 
 Emmons v. Barnes, 4 Daly, 418. Affirmed, 55 
 N. Y., 643. 
 
 Erben v. Lordlard. 19 N. Y., 299. Error in 
 charge. Distinguished, RulofTs case, 11 Abb. 
 N. S. 245 ; 45 N. Y., 213. Direction to dis- 
 regard evidence. Followed, Newman v. God- 
 dard, 48 How., 363 ; 3 Hun, 70. Striking out 
 evidence. Distinguished, Garfield v. Kirk, 65 
 Barb., 464. 
 
 Erickson v. Quinn, 3 Lans., 299. Burden of proof, 
 statute of limitations. Approved, Baldwin v. 
 Martin, 14 Abb. N. S., 9. 
 
 Erie Railway Co. v. Champlain, 35 How., 74. 
 ComRulsory affidavit, Followed, McCue v. 
 Tribune Association, 1- Hun, .469. 
 
 V. Ramsay, 3 Lans., 178. Affirmed, 45 
 
 N. Y.,687. 
 Eten V. Luuster, 37 N. Y. Supr., 486. 
 60 N. Y' 252. 
 
 Affirmed, 
 
 Evans v. Kalbfleisch, 16 Abb.N. S.,.13. Eefer- 
 ence. Followed, Flanders v. Odell, 2 Hun, 664. 
 Ross v. Combes, 37 N. Y. Supr., 289. 
 
 Everett v. Coe, 5 Denio, 182. Partnership. Ap- 
 proved, Leggett v. Hyde, 47 How. 524. 
 
 v. Everptt. 29 N. Y. 39. Will. Followed. 
 
 Stevenson v.Lesli,-, 49 How., 229. Vested in- 
 terest Followed, Hays v Gourley, 1 Hun, 38 
 
 Evertson v. Thomas, 5 How., 46. Affidavit for. 
 publication of summons. Distinguished, 
 Handle^ v. Quick, 47 How., 233. 
 
 Excelsior Fire Ins. Co. v. Roi/al Ins. Co. of Liver- 
 pool, 7 Lans., 138. Affirmed, 55 N. Y., 343. 
 Insurance. Followed, Foster v. Van Reed, 5 
 Hun, 821. 
 
 Fabbri v. Kalbfleisch, 2 Sweeny, 252. Affirmed, 
 62 N. Y., 28. 
 
 Faber v. Faber, 49 Barb., 357. Trademark. Ap- 
 proved, Meneely v. Meneely, 1 Hun, 367. 
 
 Fairbanks v. Mothersell, 60 Barb., 401. Rights of 
 
xvm 
 
 CASES CRITICISED. 
 
 married women. Held, obiter, Perkins v. Per- 
 kins, 7 Lans., 19 ; 62 Barb., 581. 
 
 Fairchild v. Liverpool and L. F. and L. Ins, Co., 
 48 Barb., 420. Affirmed, 51 N. Y., 66. 
 
 Fairweather v. Satterly. 7 Bob., 546. Irregular- 
 ity. Followed, Howard y. Dusenbury, 44 How., 
 423. 
 
 Fallon T. The People, 2 Keyes, 145. Larceny, 
 evidence. Approved, Higgina v. The People, 
 7,Lans., 110. 
 
 Parish v. Corties, 1 Daly, 274. Appealable or- 
 der. Approved, Ramsay v. Gould, 4 Lans., 476. 
 
 Farley v. McConnell, 7 Lans., 428. Affirmed, 62 
 N.Y., 630. 
 
 Farmers Bank v. Blair, 44 Barb., 652. Accord 
 and satisfaction. Approved, Williams v. Irv- 
 ing, 47 How., 440. 
 
 Farmers Bank of Fayetteville v. Hale, 15 Abb. 
 N. S., 276. Reversed, 59 N. Y., 68. 
 
 Farmers Loan and Trust Co. V. Maltby, 8 Paige, 
 361. Estoppel by mortgage. Distinguished, 
 Teji V. Munson, 63 Barb., 31. 
 
 Farmers and Mechanics Bank v. Empire Stone 
 Dressing Co., 5 Bosw., 289. Bona fide holder. 
 Approved, Philbrick v. Dallett, 43 How., 419. 
 12 Abb. N. S., 419 ; 84 N. Y. Supr., 370. 
 
 Farnham v. Campbell, 34 N. Y., 480. Cloud on 
 title, action to remove. Approved, Mulligan 
 V. Baring, 3 Daly, 75. 
 
 Farrand v Marshall, 21 Barb., 409. Negligence, 
 Distinguished, Losee v. Buchanan, 51 N. Y., 
 476. 
 
 Farrel v. Calkins, 10 Barb., 348. Reversal of 
 joint judgment. Overruled, Van Slyck v. Snell, 
 6 Lans. 299. 
 
 Fash v. Third Ave. R. R. Co., 1 Daly, 148. Lia- 
 bility of railroad company. Followed, Wors- 
 ier V. Forty-second Street R. R. Co., 3 Daly, 
 278 ; 50 N. Y., 203. 
 
 Fassett v. Talmadge, 23 How. , 244. Arrest. Dis- 
 tinguished, Bruce V. Kelly, 5 Hun, 229. 
 
 Faulkner v. Erie Railway Co., 49 Barb., 324. 
 Negligence, Explained, Tinney v. Boston and 
 Albany R. R. Co., 62 Barb. 218. 
 
 Favill V. Roberts, 3 Lans., 141. Affirmed, 50 N. 
 Y., 222. Estoppel. Followed, Maitoon v. 
 Young, 2 Hun, 569. 
 
 Fearing v. Irwin, 4 Daly, 385. Affirmed, 65 N. Y., 
 486. 
 
 Fellows V. Heermans, 4 Lans. 230. Trust, how 
 far res adjudicata, Heermans v, Robertson, 3 
 Hun, 464 ; Same v. Ellsworth, id., 473. 
 
 V. Prentiss, 8 Denio, 514. Effect of tak- 
 ing new note. Approved, Eisner v. Keller, 3 
 Daly, 486. Guaranty. Approved, Crist v. 
 Burlingame, 62 Barb., 361. 
 
 Fenner v. Buffalo and St. Line R. R. Co., 46 
 Barb., 103. Reversed, 44 N. Y.-, 506. 
 
 Fenton v. Reed, 4 John., 52. Evidence of mar- 
 riage. Approved, Wright v. Wright, 48 How., 
 1 ; Rockwell v. Tunnicliff, 62 Barb., 408. 
 'Ferguson v. Hamilton, 36 Barb., 427. Guaranty 
 by agent. Approved, Lossee v. Williams, 6 
 Lans., 228. 
 
 Fernandez y. Great West. Ins. Co., 8 Rob., 457. 
 Reversed 48 N. Y., 670. 
 
 Fero V. Buffalo and State Line R. R. Co., 22 N. 
 Y., 209. Injury by accident. Distinguished, 
 Losee V. Saratoga Paper Co., 42 How., 386. 
 
 Ferrero v. Bahlmeyer, 34 How., 33. Dissolution of 
 
 partnership. Overruled, Sistare y. Gushing, 
 4 Hun, 503. 
 
 Ferrin v. Myrick, 41 N. Y., 315. Action against 
 executor. Examined, Tradesmens Nat. Bank 
 y. McFeely, 61 Barb., 622. 
 
 Ferris V. Kilmer, 47 Barb., 411. Reversed, 48 N. 
 Y., 300. 
 
 Fettretch v. McKay, 11 Abb. N. S., 463 ; 47 N. 
 Y., 426. Counterclaim. Distinguished, Bur- 
 roughs y. Garrison, 15 Abb. N. S. 144. 
 
 Fettrich v. Leamy, 9 Bosw., 626. Party wall. 
 Followed, Nash y. Kemp, 49 How., 522. 
 
 Fiedler y. Darrin, 59 Barb., 651. Reversed, 50 
 N. Y., 437. 
 
 Field y. New York Central R. R. Co., 82 N. Y., 
 339. Evidence of negligence. Followed, 
 West/ally. ErieR'y Co., 6 Hun, 75. 
 
 V. Schieffelin, T John. Ch.,160. Guardian, 
 
 powers of. Followed, Tuttle y. Heavy, 59 
 Barb., 334 ; Thacker y. Henderson, 63 id.,' 271. 
 
 Fielden v. Lahens, 14 Abb., 48. Reference. Fol- 
 lowed, Townsend v. Glens Falls Ins. Co., 10 
 Abb.N. S., 277 ; 33 N. Y. Supr., 130. 
 
 Fiero v. Fiero, 52 Barb. , 288. Contract for sale 
 of land. Distinguished, Badenhop y. McCahiU, 
 42 How., 192. 
 
 Filer y. New York Cent. R. R. Co., 49 N. Y., 47. 
 Husband's rights. Followed, Sloan y. N. Y. 
 Cent. S- Hud. Riv. R. R. Co., 1 Hun, 540. Ac- 
 tion, personal injury to wife. Distinguished, 
 Brooks y. Schwerin, 64 N. Y., 343. Married 
 woman. Criticised. Bean y. Kiah, 4 Hun, 171. 
 
 Finky.Justh, 14 Abb. N. S., 107. Pleading in 
 libel. Followed, jKe%v. Taintor, 48 How., 270. 
 
 Finlay y.Cook, 54 Barb., 9. Tax deed. Followed, 
 Hilton V. Bender, 2 Hun, 1. 
 
 Finnegan v. Carraher, 61 Barb., 252. Affirmed, 
 47 N. Y., 493. 
 
 Fire Department v. Noble, 3 E. D. Smith, 440. 
 Constitutional law. Followed, Wallack v. 
 Mayor, etc. of New York, 8 Hun, 84. 
 
 V. Wright, 3 E.D. Smith, 463. Constitu- 
 
 tional law. Followed, Wallack y. Mayor, etc, 
 
 of New York, 3 Hun., 84. 
 First Bapt. Church v. Brooklyn F. Ins. Co., 19 
 
 N. Y., 305. Waiver of condition. Approved, 
 
 Carroll y. Charter Oak Ins. Co., 10 Abb. N. S. 
 
 166. 
 First National Bank ofBallston Spa v. Insurance 
 
 Co. of North America, 6 Lans., 203. Affirmed, 
 
 50 N. Y. 45. 
 First National Bank of Cortland v. Green, 43 
 
 N. Y., 298. Bona fide holder. Followed, 
 
 Porter v. Knapp, 6 Lans., 126. 
 First National Bank of Sandy Hill y. Fancher. 
 
 62 Barb., 138. Affirmed, 48 N. Y., 524. 
 First National Bank of Whitehall y. Lamb, 67 
 
 Barb., 429. Reversed, 60 N. Y., 95. 
 
 Fish y. Clark, 2 Lans., 176. Affirmed, 49 N. Y.. 
 122. 
 
 V. Dodge, 4 Denio, 311. Nuisance. Fol 
 
 lowed, Hutchins y. Smith, 63 Barb., 261. 
 
 Fisher v. Banta, 1 Hun, 610. Affirmed, 4 Hun, 
 
 425. ' 
 
 ■ V. Hepburn, 48 N. Y., 41. Motion. Ap- 
 
 proved, Kamp V. Kamp, 59 N. Y., 212. 
 
 V. Mayor, etc. of New York, 4 Lans., 451. 
 
 Reversed, 57 N. Y., 344. 
 
 • V. New York Cent, and Hud. Riv. R. R. 
 
 Co., 46 N. Y., 644. Followed,- Tracy y. Same, 
 
CASES CRITICISED. 
 
 XIX 
 
 46 N. Y., 694 ; Fritsche v. Same, 47 id., 660 ; 
 Lmmsbury v. Same, id,, 661 ; Mix v. Same, and 
 other cases, 47 id., 678. Fenal actions. Fol- 
 lowed, Micks V. Same, and other cases, 49 id., 
 664 ; Foote y. Same, 60 id., 693. Distinguished, 
 Suydam v. Smith, 62 id., 383. 
 
 V. Stilson, 9 Abb., 33. Submission of 
 
 controversy by infant. Followed, Lathers v. 
 Fish, 4 Lans., 213. 
 
 Fish V. Chicago, Rock Island and Pac. R. R. Co., 
 3 Abb. N. 8., 430. Reference to take deposi- 
 tion of partjr on motion. Disapproved, 
 Knoeppel v. Kings Co. Fire Ins. Co., 47 How., 
 412 ; Hodgskin v. Atlantic and Pac. R. R. Co., 
 3 Daly, 70. 
 
 Fisk Pavement Co. v. Evans, 87 N. Y., 482. Af- 
 firmed, 60 N. Y., 640. 
 
 Fitch V. Humphrey, 1 Denio, 163. Chattel mort- 
 gage. Distinguished, Stockham v. Allard, 2 
 Hun, 67. 
 
 Fitzsimmons v. Woodruff", 1 N. Y. Supr., 8. Con- 
 tract. Approved, Bates v. Coster, 1 Hun, 400. 
 
 Flanagan v. Demorest, 8 Rob. 173. Contract. 
 Followed, Talmadge v. White, 36 N. Y. Supr., 
 218. 
 
 V. Tinin, 53 Barb., 587. Leave to issue 
 
 execution. Overruled, Marine Bank of Chi- 
 cago V. Van Brunt, 61 Barb., 361. 
 
 Flennan v. McKean, 25 Barb., 474. Bona fide 
 purchaser. Followed, Wait v. Green, 46 How. , 
 449. 
 
 Fleet V. Borland, 1 How., 489. Partition of 
 vested remainder. Overruled, McGlone v. 
 Goodwin, 3 Daly, 185. 
 
 Fleming v. HoUenbeck, 7 Barb., 271. Deposition. 
 Distmguished, Goodyear y. Vosburgh,41 How., 
 421. 
 
 Flike V. Boston and Alb. R. R. Co., 63 N. Y., 649. 
 Master and servant. Followed, Coulter v. 
 Board of Education, 4 Hun, 569 ; Ross v. New 
 York Cent., etc. R. R. Co., 5 Hun, 588. 
 
 Poland V. Johnson, 16 Abb., 239. Mitigation of 
 damages. Approved, Wehle v. Haviland, 42 
 How., 399 ; 4 Daly, 550. 
 
 Folger v. Fitzhugh, 41 N. Y., 288. New trial. 
 Followed, Raphelsky v. Lynch, 43 How., 167 ; 
 12 Abb. N^ S., 224 ; 34 N. Y. Supr., 31. 
 
 Folsom V. Van Wagner, 14 Abb. N. S., 44. Af- 
 firmed, 7 Lans., 309. 
 
 Fonda V. Borst, 2 Keyes, 48. Dedication, when 
 acceptance necessary. Approved, Grinnell v. 
 Kirtland, 48 How., 17. Distinguished, Taylor 
 V. Hepper, 2 Hun, 646. Deed, bounding on 
 road. Followed, Cox v. James, 59 Barb., 144. 
 Street. Followed, In matter of Ingraham, 4 
 Hun, 496. 
 
 V. Sage, 46 Barb., 109. Affirmed, 48 N. 
 
 Y., 173. 
 
 Foot V. Bentleu, 44 N. Y., 166. Warranty, ac- 
 tion on. Followed, Day v. Pool, 63 Barb., 
 506 ; 52 N. Y., 416. 
 
 V. Harris, 2 Abb., 464. Affidavit for 
 
 substituted service. Distinguished, Simpson 
 V. BunJi, 4 Hun, 315. 
 
 Foote V. Bryant, 47 N. Y., 544. Trust. Fol- 
 lowed, Hatewell y. Courssen, 36 N. Y. Supr., 
 459. 
 
 Vi Lathrop, 53 Barb., 183. Appearance 
 
 by husband for wife. Approved, Lathrop y. 
 Seacock, 4 Lans., 1. 
 
 V. 41 N. Y., 858. Appealable or- 
 
 der. Distinguished, Depew y. Dewey, 46 How. 
 441. Approved, Duff, maUer of, 41 How., 
 860 ; 10 Abb. N. S., 416; 43 N. Y., 469. 
 
 Forbes v. Halsey, 26 N. Y., 53. Purchase by ex- 
 ecutor. Approved, Terwilliger y. Brown, 44 
 N. Y.,237. 
 
 Ford y. Ford, 85 How., 322; 53 Barb., 625. 
 Amendment pending a reference. Approved, 
 Hockstetter v. Isaacs, 44 How., 496. 
 
 V. Harrington, 16 N. Y., 285. Attorney 
 
 and client. Approved, Haighi v. Moore, 37 N. 
 Y. Supr., 161. 
 v. Williams, 24 N. Y., 366. Amendment 
 
 of commission. Distinguislied, Leitch y. At- 
 lantic Mut. Ins. Co., 4 Daly, 518. 
 
 Foresch y. Blackwell, 14 Barb., 608. Accord and 
 satisfaction. Approved, Williams v. Irving, 
 47 How., 440. 
 
 Forman v. Forman, 17 How., 255. Notice of ap- 
 peal. Held obiter, Avery v. Woodbeck, 5 Lans., 
 498; 62 Barb., 667. 
 
 Forrest y. Forrest, 26 N. Y., 601. Alimony. Fol- 
 lowed, Shepherd y. Shepherd, 1 Hun, 240 ; Gal- 
 inger v. Galinger, 4 Lans., 473; 61 Barb., 31. 
 New trial. Followed, Bennett v. Austin, 6 
 Hun, 636. 
 
 Fort V. Bard, 1 N. Y., 43. Appealable order. 
 Approved, Ramsey y. Gould, 4 Lans., 476. 
 
 Foshay v. Ferguson, 2 Denio, 617. Probable 
 cause. Approved, Foote v. Milbier 46 How., 88. 
 
 Fowler y. Burns, 7 Bosw., 637. Vacating injunc- 
 tion. Approved, Middletown, Town of v. Ron- 
 dout, etc. R. R Co., 43 How., 144 ; 12 Abb. 
 N. S., 276. 
 
 Fox, In re, 63 Barb., 167. Affirmed, 52 N. Y. 
 530. 
 
 - v. Fox, 24 How., 409. Attorney, remedy 
 
 against. Distinguished, Porter v. Parmley, 89 
 N. Y. Supr., 219. 
 
 T. Heath, 21 How., 384. Assignment 
 
 Followed, Yates v. Lyon, 61 Barb., 206. 
 
 Fraser v. Freeman, 56 Barb., 234. Reversed, 43 
 N. Y., 566. 
 
 Frecking v. Holland, 83 N. Y. Supr., 499. Re- 
 versed, 68 N. Y., 422. ' 
 
 ', 53 N. Y., 422. Married woman. 
 
 Followed, Westervelt v. Ackley, 2 Hun, 268. 
 Fredericks v. Mayer, 18 How., 566. Injunction. 
 
 Distinguished, Daly y. Smith, 88 N. Y. Supr., 
 
 164. 
 Freeman v. Auld, 87 Barb., 587. Reversed, 44 
 
 N. Y., 60. 
 
 V. , 44 N. Y., 50. Estoppel. Fol- 
 lowed, Lyon V. Adde, 68 Barb., 89. 
 
 V. Deming, 3 Sandf. Ch., 327. Distin- 
 guished, Gilbert v. Priest, 14 Abb. N. S., 165; 
 66 Barb., 444. 
 
 Prees v. Ford, 6 N. Y., 176. Pleading, jurisdic- 
 tional fact. Followed, Judge v. Hall, 5 Lans., 
 69. 
 
 French v. Carhart, 1 N. Y., 96. Construction of 
 deed. Approved, Bridger v. Pierson, 45 id., 
 602. 
 
 V. Donaldson, 6 Lans., 298. Affirmed, 67 
 
 N. Y., 496. 
 v. Morrison, 43 Abb., 80. Execution, 
 
 leave to issue. Followed, Marine Bank of 
 
 Chicago v. Van Brunt, 61 Barb., 861. 
 Frost V. Mott, 84 N. Y., 263. Party. Followed, 
 
 Anderson v. Hann, 5 Hun, 79. 
 
XX 
 
 CASES CRITICISED. 
 
 V. Saratoga Mut. Ins. Co., 5 Denio, 154. 
 
 Estoppel. Approved, Carroll v. Charter Oak 
 Ins. Co., 10 Abb. N. S., 166. 
 
 Fudicker v. Guardian Mut. Life Ins. Co., 45 How., 
 462. Affirmed, 37 N. Y. Supr., 358. 
 
 Fuller V. Eunice, 2 Sandf ., 626. Ne exeat. Over- 
 ruled, Beckwith v. Smith, 4 Lans., 182. 
 
 v. Lewis, 13 How., 220. Demand before 
 
 suit. Approved, Twinam v. Swart, 4 Lane., 
 263. 
 
 V. Rowe, 69 Barb., 344. Beversed, 57 N. 
 
 Y., 23. 
 
 Fullerton v. McCurdy, 4 Lang., 132. Affirmed, 
 55 N. Y., 637. 
 
 Fulton Bank v. Phoenix Bank, 1 Hall, 562. Bona 
 Jide holder. Followed, Piatt v. Chapin, 49 
 How., 318. 
 
 Fulton Ins. Co. v. Baldwin, 37 N. Y., 648. Lia- 
 bility of canal contractor. Followed, French 
 T. Donaldson, 5 Lans., 293. 
 
 Gaffneij v. Colvill, 6 Hill, 567. Pleading. Dis- 
 tinguished, Roediger v. Simmons, 14 Abb. N. S., 
 256. 
 
 Gage v. Angell, 8 How., 335. Counterclaim. Fol- 
 lowed, Clift V. Northrup, 6 Lans., 330. 
 
 T. Vauchy, 34 N. Y., 293. Property of 
 
 married woman. Followed, Whedon v. Champ- 
 lin, 59 Barb., 61. 
 
 Gale T. Miller, 1 Lans., 451 ; 44 Barb., 420. Af- 
 firmed, 54 N. Y., 536. 
 
 v. Nixon, 6 Cow., 448. Statute of frauds. 
 
 Followed, Kuhn v. Brown, 1 Hun, 244. 
 
 Gallagher v. Brunei, 6 Cow., 346. Statute of 
 frauds. Approved, Dung v. Parker, 62 N. Y., 
 494. 
 
 v. Eagan, 2 Sandf., 744. Official compen- 
 sation. Explained, Crofut v. Brandt, 46 How., 
 481 ; 47 id.. 263. 
 
 Gallarati v. Orser, 27 N. Y., 324. Judgment in 
 replevin. Followed, McNamara v. Eisenteff, 
 14 Abb. N. S., 25. 
 
 Galway v. U. S. Steam Sugar Refinery Co., 36 
 Barb., 256. Action against corporation. Ap- 
 proved, Gilman v. Green Point Sugar Co., 4 
 Lans., 483 ; 61 Barb., 9. 
 
 Gansevoart v. Nelson, 6 Hill, 892. Presenting 
 claims to executor. Approved, Genet v. Binsse, 
 3 Daly, 239. 
 
 Gardner v. Commissioners of Warren, 10 How., 
 181. Certiorari. Followed, People v. McDonald, 
 2 Hun, 70. 
 
 v. Barney, 24 How., 467. Undertaking on 
 
 appeal, when discharged. Followed, Richard- 
 son V. Stolp, 47 How., 286. 
 
 V. Gardner, 7 Paige, 112. Married 
 
 women. Approved, Quassaic National Bank v. 
 Waddell, 1 Hun, 125. 
 
 V. Ogden, 22 N. Y., 327. Trustee. Dis- 
 tinguished, Graves v. Waterman, 4 Hun, 687. 
 
 V. People, 6 Park. Cr., 180. Conviction 
 
 of less degree. Followed, McNevins v. The 
 People, 61 Barb., 307. 
 
 Gardiner v. Pollard, 10 Bosw., 674. Action by 
 stockholder. Followed, Graves v. George, 49 
 How., 79. 
 
 Garlinghouse v. .Jacobs, 29 K Y., 297. Action for 
 defective highway. Distinguished, Hover v. 
 Barkhoof, 44 N. Y., 113. Negligence. Fol- 
 
 _ lowed. Day v. Crossman, 1 Hun, 570. 
 
 Gamer v..Hannah, 6 Duer, 262. Ee-entry clause 
 
 in lease. Followed, Giles v. Austin, 38 N. Y. 
 Supr., 216. Belief against forfeiture. Ap- 
 proved, S. C, 46 How., 269. 
 
 GarnissY. Garrfmier, 1 Edw. Ch., 128. Compound 
 interest. Followed, Bennett v. Cook, 2 Hun, 
 626. 
 
 Garnsey v. Rogers, 47 N. Y., 233. Statute of 
 frauds. Distinguished, Schindler y. Euell, 45 
 How., 33. 
 
 Garrison v. Howe, 17 N. Y., 466. Trustee of 
 manufacturing company, liability. Approved, 
 Craw V. Easterly, 4 Lans., 613. 
 
 Garvey v. Jarvis, 54 Barb., 179. Affirmed, 46 N. 
 Y., 310. 
 
 GasHn V. Meek, 42 N. Y., 186. Title of local 
 act. Approved, Sullivan v. Mayor, etc. of New 
 York, 46 How., 162. Distinguished, People v. 
 Davis, 61 Barb., 456. 
 
 Gates V. Madison Ins. Co., 5 N. Y., 478. Insur- 
 ance. Followed, O'Brien v. Commercial Fire 
 Ins. Co., 38 N. Y. Supr., 617. 
 
 V. McKee, 13 N. Y., 232. Guaranty. 
 
 Followed, Crist v. Burlingame, 62 Barb., 351. 
 
 Gawtry v. Doane, 48 Barb., 148. Affirmed, 51 
 N. Y.,84. 
 
 Geer v. Kissam, 3 Edw. Ch., 129. Equity juris- 
 diction. Followed, Hoffman v. TreadweU, 39 
 N. Y. Supr., 183. 
 
 Geery v. Cockroft, 33 N. Y. Supr., 146. Partner- 
 ship. Approved, Ross v. Whitehead, 36 N. Y. 
 Supr., 60. 
 
 Genesee Bank v. Patchin Bank, 13 N. Y., 309; 19 
 id., 312. Execution of Instrument by corpo- 
 rate officer. Approved, Booth v. Farmers and 
 Mechanics Nat. Bank, 4 Lans., 301. 
 
 Genesee Valley Nat. Bank v. Board of Supervisors 
 of Livingston Co., 63 Barb., 223. Action to 
 recover back tax. Approved, National Bank 
 of Chemung v. City of Elmira, 6 Lans., 116. 
 
 Genet v. Lawyer, 61 Barb., 211. Witness. Fol- 
 lowed, Bennett V. Austin, 5 Hun, 536. 
 
 Germond v. Jones, 2 Hill, 669. Will. Distin- 
 guished, Moncriefv. Ross, 60 N. Y., 431. 
 
 Gerwig v. Shetterly, 64 Barb., 620. Affirmed, 56 
 N. Y., 214. 
 
 Getty V. Binsse, 49 N. Y., 386. Surety, discharged 
 by death. Distinguished, Wood v. Fish, 4 
 Hun, 625. 
 
 Gibson V. Haggerty, 37 N. Y., 558. Payment un- 
 der order in supplementary proceedings. Ap- 
 proved, Bishop V. Garcia, 14 Abb. N. S., 69. 
 
 V. Tobey, 53 Barb., 191. Reversed, 46 
 
 N. Y., 637. 
 
 Gilbert v. Priest, 63 Barb., 339. Beversed, 65 id., 
 444; 14 Abb. N. S., 166. 
 
 V. Sage, 5 Lans., 287. Affirmed, 67 N. Y., 
 
 639. 
 
 Gilchrist v. Comfort, 34 N. Y., 235. Bedemption. 
 Followed, Morss v. Purvis, 2 Hun, 542. 
 
 Gill V. PeopU, 3 Hun, 187. Affirmed, 60 ST. Y., 
 643. 
 
 Gillespie v. Torrance, 25 N. Y., 306. Defense by 
 indorser. Distinguished, Bookstaver v. Jayne, 
 60 N. Y., 146. Guaranty. Distinguished, Put- 
 nam v. Schuyler, 4 Hun, 166. 
 
 V. Walker, 66 Barb., 185. Evidenced Ap- 
 proved, Bennett v. McGuire, 5 Lans., 183. 
 
 Gillilan v. Spratt, 8 Abb. N. S., 13. Overruled, 
 41 How., 27 ; 3 Daly, 440. 
 
 Gillott V. Esterbrook, 47 Barb., 456. Affirmed, 
 
CASES CRITICISED. 
 
 XXI 
 
 48 N. Y., 374. Trade-mark. Followed, Pop- 
 ham. V. Wilcox, 14 Abb. N. S., 206. 
 Croddard v. Merchants Bank, 4 N. Y., 147. Money 
 paid. Distinguished, Allen v. Fourth National 
 Bank, 37 N. Y. Supr,, 187. 
 
 Goelet V. McManus, 1 Hun, 806. Affirmed, 69 
 N. Y,, 634. 
 
 Goodale v. Holdridge, 2 Johns., 193. Agreement 
 to delay sale on execution. Followed, Perkins 
 V. Proud, 62 Barb., 420. 
 
 Goodrich v. Thompson, 4 Rob., 75. Affirmed, 44 
 N. Y., 324. 
 
 Goodsell V. Phillips, 49 Barb., 853. Award, 
 judgment on. Followed, Ocean House Corp. v. 
 Chippee, 5 Hun, 419. 
 
 Goodwin T. Bait, and Ohio R. R. Co., 68 Barb., 
 195. Reversed, 50 N. Y., 164. 
 
 Gordon V. Hoestetter, 37 N. Y., 99. Pleading. 
 Followed, Ladd v. Arkelt, 37 N. Y. Supr., 35. 
 Variance. Approved, Knapp v. Roche, 37 N. 
 Y. Supr., 395. 
 
 Gorham v. Gorham, 3 Barb. Ch., 32. Action by 
 committee of lunatic. Approved, Fields v. 
 Fowler, 2 Hun, 400. 
 
 Goi-ton V. Erie Railway Co., 43 N. Y., 660. Con- 
 tributory negligence. Followed, Levy v. Great 
 Western R R Co., 48 N. Y., 676. 
 
 Gould V. Carpenter, 7 How., 97. Costs. Ap- 
 proved, Bemhard v. Kapp, 11 Abb. N. S., 342. 
 
 V. Gould, 29 How., 461. Action by mar- 
 ried woman. Doubted, Adams v. Curtis, 4 
 Lans., 164, 
 
 • V. James, 6 Cow., 369. Rights of fishery. 
 
 Followed, Brookhaven, Trustees of, v. Strong, 60 
 N. Y., 66. 
 
 ■ V. Mortimer, 26 How., 167. Setting aside 
 
 judgment. Approved, Kelloag v. Howell, 62 
 
 Barb., 280. 
 V. Sherman, 10 Abb., 411. "Vacating ar- 
 rest. Griswold V. Sweet, 49 How., 171. 
 V. Town of Sterling, 23 N. Y., 456. Bond- 
 ing town. Followed, People ex rel. White v. 
 
 Sulbert, 69 Barb., 446. Bona Jide purchaser. 
 
 Followed, Totm of Venice v. Breed, 65 Barb., 
 
 597. Corporation when bound by acts of its 
 
 officers. Approved, Dabney v. Stevens, 10 Abb. 
 
 N. S., 39 ; 2 Sweeny, 415. 
 Gowdy V. Poullain, 2 Hun, 218. Amendment. 
 
 Distinguished, iTauci v. Craighead, 4 Hun, 561. 
 Graham v. Pinckney, 7 Rob,, 147. Laches, effect 
 
 ef. Followed, Howard v .' Dusenbury, 44 How., 
 
 426. 
 V. Selover, 59 Barb., 313. Affirmed, 46 
 
 How., 107. 
 Gram v. Prussia Society, 36 N. Y., 161. Religious 
 
 corporation. Followed, Watkins v. Wilcox, 4 
 
 Hun, 220. 
 Grant v. Morse, 22 N. Y., 823. Intendment on 
 
 appeal. Distinguished, Meyer v. Amidon, 45 
 
 ITY., 169. 
 V. Vandercook, 57 Barb., 165. Mechanic's 
 
 lien. Distinguished, Trim v. Willoughby, 44 
 
 How., 189. 
 
 • V. Van Schoonhoven, 9 Paige, 256. Re- 
 
 funding to purchaser on foreclosure. Fol- 
 lowed, Raynor v. Selmes, 62 N. Y., 679. 
 
 Graves v. Otis, 2 Hill, 466. Streets, repair of. 
 Explained, Hines v. City of Lockpart, 41 How., 
 436 ; 60 Barb., 378. 
 
 Gray v. Barton, 55 N. Y., 73. Gift. Followed, 
 Johnson v. Speis, 5 Hun, 468. 
 
 V. Durland, 60 Barb., 100. Affirmed, 51 
 
 N. Y., 424. Mother's right to infants' services. 
 Approved, Simpson v. Buck, 5 Lans., 837. 
 
 V. Fisk, 42 How., 135 ; 12 Abb. N. S., 
 
 213 ; 33 N. Y. Supr., 484. Affirmed, 63 N. Y., 
 630. Appealable order. Followed, Gowdy v. 
 Poullain, 2 Hun, 218. 
 
 ■ V. Gi-ay, 2 Lans., 178. Reversed, 47 N. 
 
 Y., 652. 
 
 • V. Hannah, 80 How., 166. Notice of ap- 
 
 peal. Disapproved, Putnam v. Heath, 41 How., 
 
 262. 
 Greason v. Keteltas, 17 N. Y., 491. Trial by jury. 
 
 Distinguished, Crounse v. Walrath, 41 How., 
 
 86 ; People v. Albany and Susq. R. R. Co., 67 
 
 N. Y., 161. 
 Green v. Disbrow, 7 Lans., 381. In part reversed, 
 
 66 N. Y., 334. 
 
 V. Elmer, 8 N. Y., 422. Usury. Distin- 
 
 guished, Gerwig v. Shetterly, 64 Barb., 620. 
 • Hudson Riv. R. R. Co., 2 Abb. Ct. App. 
 
 Dec, 272. Action by husband for killing 
 wife. Distinguished, Philippi v. Wolff, 14 
 Abb. N. S., 106, 
 Green v. Mayor, etc. of New York, 5 Abb., 608. 
 Mandamus. Approved, People ex rel. Miller v. 
 Green, 46 How., 367. 
 
 -, 60 N. Y., 803. New York city. 
 
 contract for. Distinguished, Nelson v. Mayor, 
 etc., 5 Hun, 190. 
 
 - V. Miller, 6 Johns., 39. Arbitration. Ap- 
 
 proved, Townsend v. Glens Falls Ins. Co., 10 
 Abb. N. S., 277 ; 33 N. Y. Supr., 130. 
 
 • V. Putnam, 1 Barb., 500. Improvements, 
 
 allowance for. Distinguished, Scott v, Guern- 
 sey, 60 Barb., 163 ; 48 N. Y., 106. 
 
 Greene v. Mayor, etc, of New York, 1 Hun, 24. Re- 
 versed, 60 N. Y., 303. 
 
 Greene, Taxpayers of, in re., 38 How., 515. 
 Town bonds, consent of taxpayers. Over- 
 ruled, People ex rel. Irwin v. Sawyer, 52 N. Y., 
 296. 
 
 Greenleafy. Mumford, 19 Abb., 469. Notice in 
 attachment. Approved, O'Brien v. Mechanics 
 and Traders F. Ins. Co., 46 How., 429 : 15 Abb. 
 N. S., 222. 
 
 Gregory v. Cryden, 10 Abb., 289. Practice. Dis- 
 tinguished, Ballou V. Parsons, 55 N. Y., 673. 
 
 Grierson v. Mason, 1 Hun, 118. Affirmed, 60 N. 
 Y., 394. 
 
 Griffen v. New York Central R. R Co., 40 N. Y., 
 34. Negligence. Approved, Beisegel v. New 
 York Central R. R Co., 14 Abb. N. S., 29. 
 
 Griffin v. Burtnett, i Edw. Ch., 673. Priority of 
 mortgage. Followed, Ray v. Adams, 4 Hun, 
 332. 
 
 Griffin v. Colver, 16 N. Y., 489. Damages. Ap- 
 proved, Cassidy v. LeFevre, 45 N. Y., 562 ; 
 Followed, Krom v. Levy, 48 id., 679 ; Sternfels 
 V. Clark, 2 Hun, 122 ; Van Ness v. Fisher, 5 
 Lans., 236. 
 
 Griffith V. Wells. 3 Denio, 226. Prohibitory 
 Statute, effect of. Followed, jSicords v. Owen, 
 43 How., 176 ; 84 N. Y. Supr., 277. 
 
 Grim v. The Phcenix Ins. Co., 13 Johns., 451. 
 Barratry. Approved, Atkinson v. Great West- 
 ern Ins. Co., 4 Daly, 1. 
 
 Griswold v. Schmidt, 2 Sandf., 706. Trustee of 
 express trust. Approved, Davis v. Reynolds, 
 48 How., 210. 
 
 V. Sheldon, 4 N. Y., 581. Execution, what 
 
XXll 
 
 CASES CRITICISED. 
 
 liable. Distinguished, Powell v. Preston, 1 
 Hun, 518. Followed, Hollacher v. O'Brien, 5 
 Hun, 277. 
 
 V. Waddington, 16 JohnB., 491. Dissolu- 
 tion of partnership. Followed, Van Ness v. 
 Fisher, 5 Lans., 236. 
 
 Grosvenor v. Atlantic Ins. Co., 17 N. Y., 391. In- 
 surance. Followed, Pitney v. Glens Falls Ins. 
 
 Co., 61 Barb., 336. 
 
 y. Phillips, 2 Hill, 148. 
 
 Sale. Distin- 
 National Bank v. 
 
 guished, Cayuga County 
 Daniels, 47 N. V., 631. 
 
 Grube V. Schultheiss, 4 Daly, 207. Aflarraed, 67 
 N. Y., 669. 
 
 Guelle V. Lawrence, 19 Johns., 381. Trespass. 
 Followed, Munger v. Baker, 66 Barb., 539. 
 
 Guilford, Town of, v. Board of Supervisors, 13 N. 
 Y., 143. Constitutional law. Followed, Peo- 
 ple ex rel. N. Y. and H. R. R. Co. v. Have- 
 meyer, 3 Hun, 97. 
 
 Guillander y. Howell, 36 N. T., 667. Assignment 
 for benefit of creditors. Distinguished, Ock- 
 erman v. Cross, 64 N. Y., 29. 
 
 Guillaume v. Hamburg and Amboy Packet Co., 42 
 N. Y., 212. Carrier limitation of liability. Fol- 
 lowed, Magnin v. Dinsmore, 66 N. Y., 168. 
 
 Gurney v. Smithson, 7 Bosw., 400. Motion for 
 new trial. Overraled, Rappelsky v. Lynch, 43 
 How., 167 ; 12 Abb. N. S., 224 ; 34 N. Y. 
 Supr., 31. 
 
 Gutchess T. Daniels, 68 Barb., 401. Reversed, 
 49 N. Y., 606. 
 
 Guy V. Mead, 22 N. Y., 462. Memorandum as 
 evidence. Qualified, Driqgs v. Smith, 45 How., 
 447 ; 36 N. Y. Supr., 283. 
 
 Haas v. Dorland, 11 How., 489. Partition, Beach 
 V. Mayor, etc. of New York, 45 How., 357. 
 
 Hackford v. New York Central R.R. Co., 43 How., 
 222 ; 6 Lans., 381 ; 13 Abb. N. S., 18. Affirm- 
 ed, 53 N. Y., 654. Negligence, burden of proof. 
 Followed, Robinson v. N. Y. Cent, and Hud. 
 Riv. R. R. Co., 65 Barb., 146. 
 
 Hackley's Case, 21 How., 103 ; 24 N. Y., 74. Ha- 
 beas corpus. Approved, Shank's Case, 15 Abb. 
 N. S., 38. 
 
 Hackney v. Vrooman, 62 Barb., 670. Gift. Ques- 
 tioned, Johnson v. Spies, 5 Hun, 468. 
 
 Hadden v. Dimmick, 31 How., 196. Reversed, 
 13 Abb. N. S., 135 ; 48 N. Y., 661. 
 
 Hadley v. Ayers, 12 Abb. N. S., 240. Affirmed, 
 46 N. Y., 691. 
 
 Haggart v. Morgan, 5 N. Y., 423. Attachment. 
 Followed, Mayor, etc. v. Genet, 4 Hun, 487. 
 
 Haggerty v. The People, 6 Lans., 332. Modified, 
 63 n: Y., 476. 
 
 Haight v. Holcomb, 16 How., 173. Attorney, 
 remedy against. Distinguished, Porter v. 
 Pj.rmly, 39 N. Y. Supr., 219. 
 
 Hale V. Omaha National Bank, 33 N. Y. Supr., 
 40. Reversed, 49 N. Y., 626. 
 
 Hall V. Barton, 25 Barb., 274, Deposition. Ap- 
 proved, Goodyear v. Vosburgh, 41 How., 421. 
 
 y.Erwin, 60 Barb., 349. Affirmed, 57 
 
 N. Y., 643. 
 
 V. Fisher, 9 Barb., 29. Error increasing 
 
 tax. Followed, Coleman v. Shattuck, 2 Hun, 
 497. 
 
 V. McKechnie, 22 Barb., 244. Pleading, 
 
 Distinguished, Roediger v. Simmons, 14 Abb. 
 N. S.,256. 
 
 Hallahan v. HerbeH, 4 Daly, 209 ; 11 Abb. N. S., 
 326. Affirmed, 57 N. Y., 409. 
 
 HaUett V. Novion, 14 Johns., 290. Prohibitory 
 statute, effect of. Followed, Swards v. Owen, 
 43 How., 176 ; 34 N. Y. Supr., 277. 
 
 Halsey v. Sinsebaugh, 16 N. Y., 485. Memoran- 
 dum as evidence. Qualified, Driggs v. Smith, 
 45 How., 447 ; N. Y. Supr., 283. 
 
 Ham V. Mayor, etc. of New York, 37 N. Y. Supr., 
 458. Liability of city. Distinguished, ScArejer 
 T. Mayor, etc., 39 N. Y. Supr., 1. 
 
 Hambiin v. Dimeford, 2 Bdw. Ch., 629. Injunc- 
 tion. Distinguished, Daly v. Smith, 38 N. Y. 
 Supr., 154. 
 
 Hamilton v. McPherson, 28 N. Y., 76. Damages. 
 Distinguished, Bixbyv. Bennett, 3 Daly, 225. 
 Approved, Gillis v. Space, 63 Barb., 177 ; Polk 
 V. Daly, 14 Abb. N. S.i 156 ; 4 Daly, 411. 
 
 V. New York Central R R. Co., 61 N. Y., 
 
 100. Objections to evidence. Approved, Dean 
 V. ^tna Life Ins. Co., 48 How., 36 ; 2 Hun, 
 358. 
 
 V. Third Ave. R. R. Co., 44 How., 294 ; 18 
 
 Abb. N. S., 318 ; 35 N. Y. Supr., 118. Re- 
 versed, 63 N. Y., 26. Rights of passenger by 
 railroad. Followed, Townsend v. New Ydrk 
 Central and Hud. Riv. R. R. Co., 4 Hun, 217. 
 . V. Van Rensselaer, 43 N. Y., 244. Guar- 
 
 anty. Followed, Melick v. Knox, 44 id., 676. 
 Hamlin v. Dingman, 41 How., 132. Reversed, 
 
 5 Lans., 61. 
 Hamner v. Wilsey, 17 Wend., 91. Mitigation of 
 
 damages. Approved, Wehie v. Butler, 43 How., 
 
 5 ; 12 Abb. N. S., 139. 
 Hand y. Ballou, 12 N. Y., 541. Poultney estate, 
 
 act relating to. Followed, Howard v. Moot, 2 
 
 Hun, 475. 
 Hanford v. Artcher, 4 Hill, 271. Fraudulent 
 
 conveyance. Followed, Hollacher v. O'Brien, 
 
 5 Hun, 277 ; Mitchell v. West, 55 N. Y., 107. 
 
 v.McNair, 2 Wend., 286. Relief from 
 
 default Approved, Security Bank of New 
 York City v. National Bank of the Common- 
 wealth, 48 How., 135 ; 2 Hun, 287. 
 
 Hanover Co. v. Sheldon, 9 Abb., 240, Arrest of 
 ■ partner. Distinguished, Sherman v. Smith, 42 
 How., 198. 
 
 Happi/ V. Mosher, 47 Barb., 501. Reversed, 48 
 N. Y., 313. 
 
 Harger v. Nelson, 63 Barb., 250. Good faith a 
 question for the jury. Approved, Bailey v. 
 Gris'vold, 36 N. Y. Supr., 68. 
 
 Hargous v. Ablon, 5 Hill., .474. Consequential 
 damages. Approved, Ftynn v. Hatton, 43 How., 
 333 ; 4 Daly, 552. 
 
 V. Stone, 5 N. Y., 73. Sale, rescission of. 
 
 Explained, Day v. Pool, 63 Barb., 506. 
 Harker v. Anderson, 21 Wend., 372. Action on 
 bank check. Followed, Judd v. Smith, 3 Hun. 
 190. 
 
 Harman v. Brotherson, 1 Den., 537. Affidavit for 
 order of arrest. Approved, Miller v. Adams, 7 
 
 - Lans., 131 ; 52 N. Y., 409. 
 
 Harmony Fire and M. Ins. Coi, In re, 9 Abb. N. S., 
 347. Affirmed, 45 N. Y., 310. 
 
 Harold V. Heffernan, 42 How., 242. Injunction, 
 dissolution. Approved, Middletown, Town of, 
 V. Rondout and Oswego R. R. Co., 43 How., 
 481. County judge. Disapproved, Hathaway 
 V. Warren, 44 How., 161 ; Town of Rochester v. 
 Davis, 12 Abb. N. S., 270. 
 
CASES CRITICISED. 
 
 xxm 
 
 Harp V. Osgood, 2 Hill, 216. Taking unauthor- 
 ized security. Distinguished, Richardson t. 
 CrandttU, 48 N. Y., 348. 
 
 Harper v. Fairly, 53 N. Y., 442. New promise. 
 Explained, Smith v. Ryan, 39 N. Y. Supr., 489. 
 
 Harris v. Clark, 2 Barb., 99. Gift. Followed, 
 Johnson v. Spies, 5 Hun, 468. 
 
 V. Frinh, 2 Lans., 35. Beversed, 49 N. 
 
 Y., 24. 
 
 • V. Panama R. R. Co., 36 N. Y. Supr., 373. 
 
 Affirmed, 58 N. Y., 660. 
 
 ■ V. Pratt,, 17 N. Y., 249. 
 
 Stoppage in 
 transitu. Approved, Muller v. Pondir, 6 Lans., 
 272. 
 
 V. Roof's Executors, 10 Barb., 489. Con- 
 tract, validity. Approved, Pease v. Walsh, 
 39 N. Y. Supr., 614 ; 49 How., 269. 
 
 Harrison v. Marshall, i B. D. Smith, 271. Viola- 
 tion of Sunday law, when no defense. Ap- 
 proved, Landers v. Staten Island R. R. Co., 13 
 Abb. N. S., 338. 
 
 Han-od v. Barreto, 1 Hall, 155. Presumption as 
 to foreign courts. Followed, McCulloch v. 
 Norwood, 86 N. Y. Supr., 180. 
 
 narrower v. Heath, 19 Barb., 331. Termination 
 of lease. Distinguished, Wilson v. Lester, 64 
 Barb., 431. 
 
 Hart V. Hudson, 6 Duer, 304. Notes and bills, 
 consideration. Disapproved, Eisner v. Keller, 
 3 Daly, 485. 
 
 V. Mayor, etc. of Albany, 8 Paige, 381. 
 
 Injunction. Distinguished, Fellows v. Heer- 
 mans, 13 Abb. N. S., 1. 
 
 V. 9 Wend., 571. Nuisance. Dis- 
 
 tiuguished, Delaware and Hudson Canal Co. y. 
 
 Lawrence, 2 Hun, 163. 
 V. Messenger, 2 Lans., 446. Reversed, 46 
 
 N. Y., 253. 
 —^ V. TenEyck, 2 Johns. Ch., 108. Confusion 
 
 of goods. Approved, Starr v. Winegar, 3 
 
 Hun, 491. 
 V. Wright, 17 Wend, 267. Acceptance 
 
 of manufactured article. Approved, Neaffie 
 
 V. Hart, 4 Lans., 4. Warranty. Approved, 
 
 Lawton y. Keil, 61 Barb., 558. 
 
 ' V. Young, 1 Lans., 417. Action by married 
 
 woman. Approved, Adams v. Curtis, 4 Lans. 164. 
 
 Hartford and New Haven R. R. Co. v. Croswells, 5 
 Hill, 383. Amendment of charter. Distin- 
 guished, Joslyn v. Pac. Mail Steamship Co., 12 
 Abb. N. S., 329. 
 
 Hartley v. Harrison, 24 N. Y., 170. Usury. Dis- 
 tinguished, Walch V. Cook, 65 Barb., 30. 
 
 Hartwell v. Wandell, 2 Hun, 552. Reversed, 60 
 N. Y., 346. 
 
 Harvey v. Dunlap, Lalor's Sup., 193. Injury by 
 accident. Approved, Losee v. Saratoga Paper 
 Co., 42 How., 385. 
 
 Hasbrouck v. Tappen, 15 Johns., 200. Waiver. 
 Approved, Shute v. Hamilton, 3 Daly, 462. 
 
 Hatfield v. Sneden, 42 Barb., 615. Beversed, 54 
 N. Y., 280. 
 
 Hathaway v. Toum of Homer, 5 Lans., 267. Bev- 
 ersed, 54 N. Y., 655. 
 
 V. , 54 N. Y., 655. Money had and 
 
 received. Followed, Decker v. Saltzman, 59 
 . N. Y., 275. 
 
 Havemeyer v. Bingham, 12 N. Y., 99. Excuse for 
 non-performance. Approved, Kein v. Tupper, 
 42 How., 437; 33 N. Y. Supr., 465. 
 
 Havens v. Erie Railway Co., 41 N. T., 2&6. Negli- 
 gence. Followed, Cook v. N. Y. Cent. R. R. Co., 
 6 Lans., 401. Explained, Eaton v. Erie Rail- 
 way Co., 51 N. Y., 544. 
 
 Hawkins v. Pemberton, 6 Rob., 42, 85 How., 876. 
 Warranty. Beversed, 44 How., 102; 51 N. 
 Y., 198. 
 
 Hawley v. Cramer, 4 Cow., 785. Trustee. Fol- 
 lowed, Terwilliger v. Brown, 59 Barb., 9 ; 44 
 N. Y., 237. 
 
 v. James, 5 Paige, 444. Trust. Dis- 
 
 tinguished, Heermans v. Robertson, 8 Hun, 464. 
 ■ V. Keeler, 62 Barb., 281. Affirmed, 53 N. 
 
 Y., 114. 
 Hay V. Cohoes Co., 2 N. Y., 159. Negligence. 
 
 Distinguished, Losee v. Buchanan, 51 N. Y., 
 
 476. Nuisance. Followed, Hutchins v. Smith, 
 
 68 Barb., 251. 
 Hayden v. Demets, 84 N. Y. Supr., 844. Affirmed, 
 
 53 N. Y., 426. 
 
 V. Florence Sewing Machine Co., 54 N. Y., 
 
 221. Construction of statute. Followed, Eten 
 
 V. Luyster, 87 N. Y. Supr., 486. 
 Haydock v. Stow, 40 N. Y., 863. Contract for 
 
 sale of land. Approved, Badenhop v. McCahill, 
 
 42 How., 192. 
 Hayes v. Carringtm, 12 Abb., 179 ; 21 How., 148. 
 
 Exoneration of bail Approved, Gauntley v. 
 
 Wheeler, 4 Lans., 491. 
 
 V. Phelan, 4 Hun, 783. Civil damage act. 
 
 Distinguished, Dubois v. Miller, 5 Hun, i 
 
 ■ V. Willio, 11 Abb. N. S., 167. Beversed, 
 
 4 Daly, 259. 
 
 Hayner v. Am. Pop. Life Ins. Co., 35 N. Y. Supr. 
 266. Modified, 86 id., 211. 
 
 V. James, 17 N. Y., 316. Jurisdiction of 
 
 recorders. Followed, People ex rel. . Heilbron- 
 
 ner v. Hosier, 14 Abb. N. S., 414 
 Haynes Ex parte, 18 Wend., 611. Jurisdiction. 
 
 Distinguished, Miller v. Adams, 52 N. Y., 409. 
 Hays V. Cohoes Co., 2 N. Y., 159. Negligence. 
 
 Distinguished, McCafferty v. Spuyten Duyvil, 
 
 etc. R. R. Co., 48 How., 44. 
 Haywood v. Miller, 13 Wend., 90. Landlord and 
 
 tenant. Followed, Doyle v. Gibbs, 6 Lans., 
 
 180 ; Kerrains v. People, 60 N. Y., 221. 
 Hazman v. Hoboken Land and Imp. Co., 2 Daly, 
 
 130. Affirmed, 50 N. Y., 53. 
 Heard v. Horton, 1 Denio, 168. Heirs, bequest 
 
 to. Distinguished, Cushman v. Horton, 69 N. 
 
 Y., 149. 
 Hedges v. Hudson Riv. R. R. Co., 6 Bob., 119. 
 
 Beversed, 49 N. Y., 228. 
 Hegeman v. Fox, 31 Barb., 475. Domicil. Dis- 
 tinguished, Dupuy V. Wurtz, 53 N. Y., 556. 
 V. Western R. R Co., 13 N. Y., 9. Carrier 
 
 of passengers, liability. Followed Caldwell v. 
 
 N. J. Steamboat Co., 47 N. Y., 282. 
 Heim V. Wolf, 1 E. D. Smith, 73. Bemedy of 
 
 servant wrongfully discharged. Approved, 
 
 Moody V. Leverich, 14 Abb. N. S., 145 ; 4 Daly, 
 
 401. 
 Heinemann v. Heard, 58 Barb., .524. Beversed, 
 
 50 N. Y., 27. 
 Heins v. Peine, 6 Bob., 420. Affirmed, 85 N. Y. 
 
 Supr., 568. 
 Heller In re, 8 Paige, 199. Improvements, allow- 
 ance for. Distinguished, Scott v. Guernsey, 48 
 
 N. Y., 106. 
 Henderson v. Henderson, 3 Den., 814. Presump- 
 
XXIV 
 
 CASES CRITICISED. 
 
 tion of payment. Approved, Fisher v. Mayor, 
 etc. of New Ym-h, 3 Hun, 648. 
 
 . V. Spofford, 10 Abb. N. S., 140, 4 Daly, 
 
 361. Affirmed, 59 N. Y., 131 
 
 HendHdcs v. Stark, 37 N. Y., 106. Covenant 
 against incumbrances. Approved, Butterworth 
 V. Crawford, 3 Daly, 66. 
 
 Hendrickson v. People, 10 N. Y., 18. Confessions 
 as evidence. Reaffirmed, Teachout v. People, 
 41 N. Y., 7; People v. Montgomery, 13 Abb. 
 N. S., 207. 
 
 Henry v. Wilkes, 37 N. Y., 562. Agency, prin- 
 cipal when bound. Distinguished, Fitzhugh 
 V. Sackett, 50 N. Y., 699. 
 
 Herrick v. Carman, 10 Johns., 224 ; 12 id., 159. 
 Indorsement of bill or note. Approved, Phelps 
 V. Vischer, 50 N. Y., 69. 
 
 Herrington v. Village of Coming, 51 Barb., 396. 
 Liability of village for negligence. Dis- 
 tinguished, Haskell V. Village of Penn Yan, 5 
 Lans., 43. 
 
 Hess V. Beekman, 11 Johns., 457. Former ad- 
 judication. Distinguished, Gillilan v. Spratt, 
 41 How, 27 ; 3 Daly, 440. 
 
 Heywood v. City of Buffalo, 14 N. Y., 534. Cloud 
 on title. Followed, Helyrew Free School As- 
 sociation V. Mayor, etc. of New York, 4 Hun, 
 446. Pleading. Approved, Crevier v. Mayor, 
 etc. of New York, 12 Abb. N. S., 340. 
 
 Hibbard v. N. Y. and Erie Ry. Co., 16 N. Y., 
 467. Master's liability. Disapproved, Higgins 
 V. Watervliet Turnpike Co., 46 N. Y., 23. 
 
 Hicks V. Cleveland, 39 Barb., 573. Reversed, 48 
 N. Y., 84. 
 
 Higgins v. People, 1 Hun, 317. Affirmed, 68 N. 
 Y., 377. 
 
 V. Rector, etc. of Trinity Church, 48 N. Y., 
 
 532. Covenant by tenant to pay taxes. Ap- 
 proved, Giles V, Austin, 46 How., 269. 
 
 V. Whitney, 24 Wend., 379. Conversion. 
 
 Approved, Ball v. Liney, 48 N. Y., 6. Mitigation 
 
 of damages. Distinguished, Sprague v. Mc- 
 
 Kenzie, 63 Barb., 60. 
 Hildebrand v. People, 1 Hun, 19. Affirmed, 56 
 
 N. Y., 394. 
 Hills v. Place, 7 Rob., 389 ; 36 How., 26 ; 5 Abb, 
 
 N. S., 18. Affirmed, 48 N. Y., 620. 
 Hincken v. Mut. Benefit Life Ins. Co., 6 Lans., 21. 
 
 Affirmed, 60 N. Y., 667. 
 
 Hinckley v. Kreitz, 36 N. Y. Supr., 413. Rever- 
 sed, 58 N. Y., 583. 
 
 v. Smith, 51 N. Y., 21. Specific perform- 
 ance. Followed, Reede v. Schneider, 47 How., 
 379 ; 1 Hun, 121. 
 
 Hines V. City of Lockport, 60 Barb., 236. Negli- 
 gence. Followed, Nims v. Mayor, etc. of Troy, 
 59 N. Y., 600. 
 
 v.— 41 How., 435; 60 Barb., 378; 
 
 6 Lans., 16. Affirmed, 50 N. Y., 236. Duty 
 of repairing streets. Followed, Walker v. 
 City of Lockport, 43 How., 366. Negligence. 
 Followed, Day v. Crossman, 1 Hun, 571. 
 
 Hinsdale v. White, 6 Hill, 608. [Forfeiture of 
 lease. Approved, Crawford v. Waters, 46 
 How., 210. 
 
 Hiscock V. Phelps, 2 Lans., 106. Modified, 49 N. 
 Y., 97. 
 
 Hitchcock V. N. W. Ins. Co., 26 N. Y., 68. For- 
 feiture of insurance. Distinguished, Germond 
 V. Home Ins. Co., 2 Hun, 640. Transfer of 
 
 interest. Followed, Savage v. Long Islanding. 
 Co-., 43 How., 462. 
 Hoag V. Hoag, 35 N. Y., 474. Assignee, evidence 
 of title in. Approved, Rockwell v. Brown, 42 
 How., 226; ifAbb. N. S., 400; 33 N. Y. 
 Supr., 380. 
 
 V. Owen, 60 Barb., 34. Affirmed, 57 N. 
 
 Y., 644. 
 
 Hodgkin v. Atlantic and P. R. R. Co., 6 Abb. 
 N! S., 73. Compulsory affidavit. Followed, 
 Spratt V. Huntington, 48 How., 97 ; 2 Hun, 341 ; 
 Cockey V. Hurd, 43 How., 140 ; 12 Abb. N. S., 
 301. Disapproved, S. C, 45 How., 70; 14 
 Abb. N. S., 183. Reference to take deposi- 
 tion of party. Approved, Knoeppel v. Kings 
 Co. Fire Ins. Co., 47,,How., 412. 
 
 Hodgman v. Western R. R. Co., 7 How., 492. Ac- 
 tion for breach of promise of marriage. Ap- 
 proved, Wade V. Kalhfleisch, 16 Abb. N. S., 
 16. 
 
 Hofheimer v. Campbell, 7 Lans., 157. Affirmed, 
 69 N. Y., 269. 
 
 Hoffman v. Armstrong, 46 Barb., 337. Affirmed, 
 48 N. Y., 201. 
 
 V. Caraw, 22 Wend., 285. Recovery of 
 
 proceeds of stolen property. Approved, Nevo- 
 ton V. Porter, 6 Lans., 416. 
 
 • V. Hoffman, 55 Barb., 269. Affirmed, 46 
 
 N. "Y., 30. Alimony, enforcing. Approved, 
 Galinger v. Galinger, 4 Lans., 473 ; 61 Barb., 
 31. 
 
 V. Van Nostrand, 14 Abb. N. S., 331. 
 
 Change of attorneys. Approved, Board of 
 Supervisors v. Brodhead, 44 How. 411. 
 
 Hogan v. Cregan, 6 Rob., 138. Action for seduc- 
 tion. In part overruled, Damon v. Moore, 6 
 Lans., 464. 
 
 Holbrook v. American Fire Ins. Co., 6 Paige, 220. 
 Set-off. Approved, Perry v. Chester, 12 Abb. 
 N. S., 131. Distingmahea, Bathgate V . Haskin, 
 59 N. Y., 533. 
 
 V. Wright, 24 Wend., 169. Sale. Dis- 
 
 tinguished, Cayuga County National Bank v. 
 
 Daniels, 47 N. Y., 681. 
 Hollenback v. Flemming, 6 Hill, 303. Award, 
 
 judgment on. Followed, Ocean House Carp. 
 
 V. Chippee, 5 Hun, 419. 
 Hollaway v. Stevens, 1 Hun, 308; 48 How., 129. 
 
 Affirmed, 2 Hun, 884. 
 
 Holmes V. Holmes, 12 Barb., 137. Incumbrance. 
 Followed, Heineburg v. Ismay, 36 N. Y. Supr., 
 35. 
 
 V. PeltengiU, 1 Hun, 316. Affirmed, 60 
 
 N. Y., 646. 
 
 V. Seeley, 17 Wend., 78. Lease by guar- 
 dian. Approved, Thacker v. Henderson, 63 
 Barb., 271. 
 
 Holt V. Ross, 59 Barb., 554. Affirmed, 64 N. Y., 
 472. 
 
 Holyoke v. Adams, 1 Hun, 223. Affirmed, 59 N. 
 Y., 233. 
 
 Homan v. Earle, 13 Abb. N. S., 402. Affirmed, 
 63 N. Y., 267. Action for breach of promise. 
 Approved, Wade v. Kalhfleisch, 15 Abb. N. S., 
 16. 
 
 Home Insurance Co. v. Watson, 1 Hun, 643. Re- 
 versed, 59 N. Y., 390. 
 
 V. Western Transportation Co., 4 Rob. 
 
 257 ; 33 How., 102. Affirmed, 51 N. Y., 93. ' 
 
 Honegsberger v. Second Ave. R. R. Co., 1 Keyes, 
 
 570. Negligence. Disapproved, Costello v. 
 
CASES CRITICISED. 
 
 XXV 
 
 Syracuse, Bing. and N. Y. R. R. Co., 66 Barb., 
 92. 
 
 Hoodless V. Brundage, 8 How., 26S. Costs. Dis- 
 tinguished, Lunay. Brodhead, 41 How., 146. 
 
 Hoogland v. Walt, 2 Sandf. Ch., 148. Dower. Fol- 
 lowed, Elmendorfy. Lockwood, 57 N. Y., 322. 
 
 Hooker v. Pierce, 2 Hill, 650. Record, effect of. 
 Approved, Greene v. Deal, 4 Hun, 703. 
 
 Hopkins V. Adams, 5 Abb., 352. Survival of ac- 
 tion. Followed, HeinmuUer v. Gray, 44 How., 
 260; 13 Abb. U. S., 299; 35 N. Y. Supr., 196. 
 
 Hoppock V. Moses, 43 How., 201. Notice of ter- 
 mination of agency. Followed, Claflin v. 
 Lenheim, 5 Hun, 269. 
 
 v. Tucker, 1 Hun, 132. Affirmed, 59 
 
 N. Y., 202, 641. 
 
 Hosack V. Rogers, 11 Paige, 608. Attachment to 
 enforce surrogate's decree. Distinguished, 
 Timpson's Estate, 15 Abb. N. S., 230. 
 
 Hossack V. HeyerdaU, 38 N. Y. Supr., 391. Af- 
 firmed, 60 N. Y., 634. 
 
 Hotchkiss T. Mosher, 48 N. Y., 478. Certificate 
 of deposit. Distinguished, Pardee v. Fish, 60 
 N. Y., 265. 
 
 Houck V. Lasher, 17 How., 520. Appealable or- 
 der. Distinguished, Fisk v. Albany and Susq. 
 R. R. Co., 41 How., 365. 
 
 House V. City of Rochester, 15 Barb., 517. Com- 
 missioners to assess damages; Approved, 
 Menges v. City of Albany, 47 How., 244. 
 
 Hover V. Barkhoof, 44 N. Y., 113. Negligence. 
 Distinguished, Day v. Grossman, 1 Hun, 570. 
 
 Hooey v. Rubber Tip Pencil Co., 33 N. Y. Supr., 
 522. Affirmed, 57 N. Y., 119. 
 
 V. , 12 Abb. N. S., 360; 35 N. Y. 
 
 Supr., 81. Affirmed, 50 N. Y., 335. Damages 
 on injunction. Approved, McDonald v. James, 
 47 How., 474. 
 
 V. Ten Broeck, 3 Bob., 316. Servant, 
 
 V. Searing, 6 Bosw., 854 ; 10 Abb., i 
 
 who is. Followed, Hill v. Spencer, 34 N. Y. 
 
 Supr., 304 ; Vincent v. Bamford, 42 How., 109. 
 Howard v. Freeman, 7 Rob., 25. Review of mo- 
 tion to postpone trial. Criticised, Gregg v. 
 
 Howe, 87 N. Y. Supr., 420. 
 V. Hatch, 29 Barb., 297. Affidavits in 
 
 foreclosure, recording. Approved, Frink v. 
 
 Thompson, 4 Lans., 489. Notice. Followed, 
 
 George v. Arthur, 2 Hun, 406. 
 
 ■ V. Hoey, 23 Wend., 350. Acceptance of 
 
 manufactured article. Approved, Neaffie v. 
 Hart. 4 Lans., 4.' 
 
 V. Lee, 3 Sandf., 284. Nuisance. Ap- 
 
 proved, Mulligan v. Elias, 12 Abb. N. S., 259. 
 V. Michigan Southern R. R. Co., 3 Code 
 
 Trademark. Followed, Reeves v. -Denicke, 12 
 Abb. N. S., 92. 
 Howell V. Chicago and N. W. R. R. Co., 51 Barb., 
 578. Action against foreign corporation. Fol- 
 lowed, Redmond v. Enfield Manuf. Co., 13 
 Abb. N. S., 332. Overruled, Prouty v. Michi- 
 gan Southern and N. Ind. R. R. Co., 1 Hun, 
 655. 
 
 V. Cooper, 87 Barb., 586. Action to 
 
 avoid fraudulent conveyance. Followed, 
 Payne v. Sheldon, 48 How., 1. 
 
 V. Knickerbocker Life Ins. Co., 19 Abb., 
 
 217. Parol evidence to vary policy. Ap- 
 proved, Pohalaski v. Mutual Life Ins. Co., 46 
 How., 504 ; 86 N. Y. Supr., 284. 
 
 ,8 Rob., 282. Reversed in part. 
 
 R., 213. Pleading. Approved, Leslie v. Les- 
 lie, 11 Abb. N. S., 311. 
 
 V. Sexton, 4 N. Y., 167. Arbitration. 
 
 Approved, Day v. Hammond, 57 N. Y., 479. 
 Fvidence in slander. Distinguished, Titus v. 
 Summer, 44 N. Y., 266. 
 
 • Howe, Matter or, 1 Paige, 125. Lien, priority of. 
 Approved, Cook v. Kraft, 41 How., 279. 
 
 Howe V. Deuel, 43 Barb., 504. Action against 
 corporation. Approved, Oilman v. Green Point 
 Sugar Co., 4 Lans., 482 : 61 Barb., 9. 
 
 V. The Howe Machine Co., 50 Barb., 236. 
 
 Trademark. Approved, Meneeley v. Meneeley, 
 1 Hun, 367. 
 
 v. Savory, 49 Barb., 403. Reversed in 
 
 44 N. Y., 276. 
 
 V. , 3 Rob., 232. Life Insurance. 
 
 Approved, Roehner v. Knickerbocker Life Ins. 
 Co., 4 Daly, 512. 
 
 -, 44 N. Y., 276. Life insurance. 
 
 Distinguished, Leslie v. Knickerbocker Life Ins. 
 Co., 2 Hun, 616. Followed, Warden v. Guar- 
 dian Mut. Ins. Co., 39 N. Y. Supr., 317. 
 
 V. Mills, 7 Lans., 198. Affirmed, 56 N. 
 
 Y., 226. Partition. Followed, Sullivan v. 
 Sullivan, 4 Hun, 198. 
 
 Howland v. Coffin, 47 Barb., 653. Broker's 
 compensation. Followed, Sturgis v. N. Y. 
 Steam Nav. Co., 35 N. Y. Supr., 251. 
 
 V. Edmonds, 24 ,N. Y., 307. Statute of 
 
 limitations. Followed, Osgood v. Strauss, 55 
 N. Y., 672. 
 
 V. Eldridge, 43 N. Y., 457. Municipal 
 
 bonds. Approved People ex rel. Yawger v. Allen, 
 52 N. Y., 538. Parol proof to contradict record. 
 Approved, Pierce v. Wright, 45 How., 1. 
 
 Hoyle V. Plattsburgh and Montreal R. R. Co., 51 
 Barb., 45. Reversed, 54 N. Y., 314. 
 
 Hoysradt v. Kingman, 22 N. Y., 372. Will, sig- 
 nature to. Approved, Heady's Will, 15 Abb. 
 N. S., 211. 
 
 Hoyt V. Bonnett, 58 Barb., 529. Reversed, 50 N. 
 Y., 638. 
 
 V. Martense, 16 N. Y., 281. Redemption, 
 
 right of. Distinguished, Bloomer v. Sturges, 
 
 58 N. Y., 16a Followed, Terrett v. Crombie, 6 
 
 Lans., 82. 
 Hubbard v. Briggs, 31 N. Y., 618. Impeaching 
 
 witness. Distinguished, Romertze v. East Riv. 
 
 National Bank, 49 N. Y., 677. Followed, 
 
 Same v. Same, 2 Sweeny, 82. 
 Hubbell V. Leich, 62 Barb., 295. Affirmed, 58 
 
 N. Y., 237. 
 
 V. Schreyer, 14 Abb N. S., 284 ; 4 Daly, 
 
 362. Modified, 16 Abb. N. S., 30O. Mechanic's 
 lien. Followed, McGraw v. Godfrey, 14 Abb. 
 N. S., 284. Distinguished, Haden v. Budden- 
 sick, 49 How., 241. 
 
 V. SibUy, 5 Lans., 51. Affirmed, 60 N. 
 
 Y., 468. 
 
 V. Von Schoening, 58 Barb., 498. Be- 
 
 part, 51 N. Y., 631. 
 
 versed, 49 N. Y., 326. ' 
 Huber v. The People, 44 How., 376. Title of 
 local act. Approved, Sullivan v. Mayor, etc. 
 of New York, 45 How., 152. 
 
 V. , 49 N. Y., 132. Constitutional 
 
 law. Approved, Sullivan v. Mayor, etc. ofN. 
 Y., 47 How., 491 ; 53 N. Y., 652.' 
 Hudson V. Plets, 11 Paige, 181. Exempt prop- 
 
XXVI 
 
 CASES CRITICISED. 
 
 erty. Approved, Finnm v. Malay, 33 N. Y. 
 
 Supr., 382, 
 Hudson Riv. R. R. Co. v. Outioater, 3 Sandf., 690. 
 
 Costa. Distinguished, Matter of Syracuse, etc. 
 
 R. R. Co., 4 Hun, 811. 
 Hjtghes V. Mercantile Mut. Ins. Co., 44 How., 851. 
 
 Affirmed, 55 N. Y., 265. 
 Hull V. Carnley, 11 N. Y., 601. Lessee's interest 
 
 subject to execution. Approved, Reinmiller 
 
 V. Skidmore, 7 Lans., 161. 
 Humiston v. Ballard, 40 How., 43. Case certified 
 
 by county to supreme court. Approved, Mc- 
 
 LaugUin v. Smith, 3 Hun,1J50. 
 Humphrey v. Persons, |23 Barb., 818. Jurisdic- 
 tion. Explained, Turner v. Van Riper, 48 
 
 How., 33. 
 Humphreys v. Cortelyou, 4 Cow., 54. Bill of par- 
 ticulars. Followed, Mayor, etc. of New York 
 
 V. Marrener, 49 How., 36. 
 Hungerford Bank v. Dodge, 30 Barb., 626. De- 
 fense of usury. Overruled, Smith v. Alvord, 
 
 63 Barb., 415. 
 Hungerford Bank V. Potsdam §• Wat. R. R. Co., 
 
 10 Abb., 24. Usury who may impeach for. 
 
 Followed, Strong v. N. Y. Laundry Manuf. Co., 
 
 37N.Y. Supr., 279. 
 Hunt V. Amidon, 4 Hill, 345. Eviction, what 
 
 amounts to. Followed, Cowdery v. Coit, 44 N. 
 
 Y.. 382. 
 V. Hunt, 65 Barb., 577. Eeversed, 58 N. 
 
 y., 666. 
 
 ■ V. Johnson, 44 N. Y., 27. Hearing on ap- 
 
 peal. Followed, Prouty v. Mich. Southern and 
 N. Ind. R. R. Co., 1 Hiin, 655. 
 
 Wallis, 6 Paige, 371. Setting aside 
 
 judgment in foreclosure. Approved, Powers 
 V. Trenor, 3 Hun, 3. 
 
 Hunter v. Trustees of Sandy Hill, 6 Hill, 407. 
 Ejectment, defense to. Approved, Kurkee v. 
 Haley, 47 How., 75. 
 
 Huntington v. Ogdensburgh, etc. R. R. Co., 33 How., 
 416. Remedy of servant wrongfully discharg- 
 ed. Approved, Moody v. Leverich, 14 Abb. N. 
 S., 145 ; 4 Daly, 401. 
 
 Hurd v. Beerman, 8 How., 254. Appeal from 
 justice's court on errors of fact. Approved, 
 Sperry v. Reynolds, 5 Lans., 407. 
 
 Hurst v. Litchfield, 39 N. Y., 877. Actions, effect 
 of agreement to arbitrate. Disapproved, 
 Prest.j etc. of the Delaware Sp H. Canal Co. v. 
 Pennsylvania Coal Co., 50 N. Y., 250. 
 
 Husted V. Dakin, 17 Abb., 137. Eight of Re- 
 demption. Disapproved, Ellsworth v. Muldoon, 
 46 How., 246 ; 15 Abb. N. S., 440. 
 
 Hutchings v. Munger, 41 N. Y., 158. Agent's 
 authority. Distinguished, Wardrop v. iMnlop, 
 1 Hun, 325. 
 
 Hyatt V. Taylor, 51 Barb., 632; 42 N. Y., 258. 
 Innkeeper. Explained, Bernstein v. Sweeny, 
 33 N. Y. Supr., 271. Followed, Rosenplaenter 
 V. Roessle, 54 N. Y., 262. 
 
 Hyde v. Hyde, 4 Sandf., 622. Pleading. Fol- 
 lowed, Tim V. Tim, 47 How., 253. 
 
 ■ V. Stone, 9 Cow., 230. Directing verdict 
 
 subject to opinion of General Term. Follow- 
 ed, Wilcox V. Hoch, 62 Barb., 609. 
 
 Hyland v. Stafford, 10 Barb., 568. Usury. 
 Approved, Bissell v. Kellogg, 60 Barb., 617. 
 
 Jnnes v. Purcell, 1 Hun, 318. Affirmed, 58 N. 
 Y., 388. 
 
 International Bank v. Bradley, 19 N. Y., 245. 
 
 Constitutional law. Distinguished, Landers 
 
 V. Staten Island R. R. Co., 14 Abb. N. S., 346 j 
 
 53 N. Y., 460. 
 Ireland v. Nichols, 2 Sweeny, 289. Affirmed, 46 
 
 N. Y., 418. 
 Irvine v. Wood, 4 Bob., 138. Affirmed, 51 N. Y., 
 
 224. 
 Irving v. Excelsior Fire Ins. Co., 1 Bosw., 507. 
 
 Estoppel. Held obiter. McMaster v. Prest., 
 
 etc. of Ins. Co. ofN. America, 55 N. Y., 222. 
 Isaacs v. Third Ave. R. R. Co., 23 N. Y., 344. 
 
 Master and servant. Followed, Hughes v. N. 
 
 Y. #• N. H. R R. Co., 36 N. Y. Supr., 222. 
 Isenhart v. Brown, 1 Edw. Ch., 411. Legacy in 
 
 lieu of dower. Overruled, Sanford v. San- 
 ford, 4 Hun, 753. 
 
 Isham V. Ketchum, 46 Barb., 43. Attachment, 
 who may impeach. Followed, Clearwater v. 
 Brill, 4 Hun, 728. 
 
 Ives V. Van Auken, 34 Barb., 667. Exception in 
 deed. Approved, Rexford v. Marquis, 7 Lans., 
 249. 
 
 Jacks V. Nichols, 5 N. Y., 178. Lex loci. Fol- 
 lowed, Hildreth v. Shepard, 66 Barb., 265. 
 
 Jackson v. Austin, 15 Johns., 477. Priority of 
 mortgage. Distinguished, Ray v, Adams, 4 
 Hun, 382. 
 
 V. Bradford, 4 "Wend., 622. Title by 
 
 estoppel. Approved, Tejfft v. Munson, 63 Barb., 
 31. 
 
 V. Clair, 18 Johns., 346. Evidence of 
 
 marriage. Approved, Wright v. Wright, 48 
 How., 1: Rockwell v. Tunnicliffe, 62 Barb., 
 408. 
 
 V. Davis, 6 Cow., 130. Presumption. 
 
 Followed, Lyon v. Adde, 63 Barb., I 
 
 ■ V. Ellsworth, 20 Johns., 180. Forfeiture 
 
 of lease. Followed, Allen v. Brown, 6 Lans., 
 280. 
 
 ■ V, Loomis, 18 Johns., 81. Controlling de- 
 
 scription. Approved, Thomson v. Wilcox, 7 
 Lans., 373. 
 
 V. Myers, 14 Johns., 364. Partition. Ap- 
 proved, Beach v. Mayor, etc. of New York, 45 
 How., 367. 
 
 • V. Post, 15 Wend., 688. Fraudulent con- 
 
 veyance. Approved, Dunlap v. Hawkins, 59 
 N. Y., 342. 
 
 - V. Rartsom, 18 Johns., 107. Question for 
 
 jury. Approved, Arthur v. Roberts, 60 .Barb., 
 680. 
 
 V. Rowland, 6 Wend., 666. Tenant, estop- 
 pel of. Distinguished, Hilton v. Bender, 2 
 Bun, 1. 
 
 • V. Second Ave. K R. Co., 47 N. Y., 187. 
 
 Master and servant. Distinguished, Hughes 
 V. New York Sr N. H. R. R. Co., 86 N. Y. 
 Supr., 222. 
 
 V. Sill, 11 Johns., 201. Description of 
 
 thing devised. Approved, Sharp v. Dimmide, 
 4 Lans., 496. 
 
 V. Spear, 7 Wend., 401. Estoppel against 
 
 tenant. Followed, Tompkins v. Snow, 68 
 Barb., 525. 
 
 V. Turner, 7 Wend., 458. Statutory 
 
 foreclosure. Followed, Mown/ y. Sanborn. 62 
 Barb., 228. 
 
 V. Vermilyea, 6 Cow., 678. Adverse pos- 
 session. Distinguished, Bedell v. Shaw, 59 N. 
 Y.,46. 
 
 V. Wilkinson, 17 Johns., 146. Controlling 
 
CASES CRITICISED. 
 
 xxvu 
 
 description. Approved, Thomson v. Wilcox, 7 
 Lans., 376. 
 
 Jaeger v. Kellv, 44 How., 122. Afilrmed, 55 N. 
 Y., 274. 
 
 Jaffe T. Harteau, 14 Abb. N. S, 263. AflHrmed, 
 56 N. Y., 898. 
 
 Jarvis v. Peck, 10 Paige, 119. Contract. Pol- 
 lowed, Arnot V. Pittston $• Elmira Coal Co., 2 
 Hun, 593. 
 
 Jaycox V. Caldwell, 87 How., 240, Affirmed, 51 
 N. Y., 895. 
 
 Jefferson Insurance Co. v. Cotheal, 7 Wend., 78. 
 
 Opinion as evidence. Followed, Matteson v. 
 
 New York Central R. R. Co., 62 Barb., 864. 
 Jeffres v. Cochrane, 48 N. Y., 671. Notice. Dis- 
 tinguished, Bolirook V. New York Zinc Co., 57 
 
 N. Y., 616. 
 Jenkins v. Waldron, 11 Johns., 114. Action 
 
 against inspector of election. Followed, 
 
 Gotcheus V. Matthewson, 6 Lans., 214. 
 Jetter v. N. York $• Harlem R. R. Co., 2 Eeyes, 
 
 154. Negligence. Approved, Beisegel v. N. 
 
 York Central R. R. Co., 14 Abb. N. S., 29. 
 
 Followed, Ryan v. Thomson, 88 N. Y. Supr., 
 
 133. 
 
 Jewell V. Wright, 30 N. Y., 259. Usury, lex loci. 
 Followed, Hackettstown Bank v. Rea, 6 Lans., 
 465; 64 Barb., 175; Hildreth v. Shepard, 65 
 Barb., 265. Criticised, First National Bank v. 
 Mmrris, 1 Hun, 680. 
 
 Jewett V. Palmer, 7 Johns. Ch., 65. Bona fide 
 purchaser. Followed, Spicer v. Waters, 65 
 Barb., 227. 
 
 Joannes v. Day, 3 Robt, 650. AppeaL Follow 
 
 ed. Whitman v. Nicoll, 49 How., 88. 
 Johnson v. Ackerman, 40 How., 222. Affirmed, 8 
 
 Daly, 430. 
 V. Albany ^ Stag. R. R. Co., 40 How., 198. 
 
 Reversed, 5 Lans., 222. 
 V. , 5 Lans., 222. Affirmed, 54 N. 
 
 Y., 416. 
 
 ■ V. Belden, 2 Lane., 433. Affirmed, 47 N. 
 
 Y., 130. 
 
 • V. Crofoot, 37 How., 59. Lease. Dis- 
 
 tinguished, McCombs V. Becker, 3 Hun, 342. 
 • V. Dixon, 1 Daly, 178. Consequential 
 
 damages. Distinguished, Flynn v. Hatton, 43 
 How., 333 ; 4 Daly, 552. 
 
 ■ V. Hudson Riv. R. R Co., 20 N. Y., 65. 
 
 Presumption against negligence. Followed, 
 Robinson v. New York Cent. ^ Hud, Riv. R. R. 
 Co., 65 Barb., 146. 
 
 -, 2 Sweeny, 298. Reversed, 49 
 
 N. Y., 455. 
 
 v. Kemp, 11 How., 186. Pleading. Ex- 
 plained, Abbott V. New York Cent. R. R. Co., 
 12 Abb. N. S., 465. 
 
 T. Mulvy, 4 Robt., 401. Affirmed, 51 N. 
 
 Y., 634; 
 
 . V. Oppenheim, 43 How., 438 ; 12 Abb.N. 
 
 S., 449; 34 N. Y. Supr., 416. Affirmed, 55 N. Y. 
 280. Covenant for quiet enjoyment. Fol- 
 lowed, Coddington v. Dunham, 45 How., 40 ; 35 
 N. Y. Supr., 412. 
 
 • V. Peop/e, 65 Barb., 842. Affirmed, 55 N. 
 
 Y., 512. 
 
 V. Zink, 52 Barb., 896. Affirmed, 51 N. 
 
 Y., 333. 
 
 Johnston v. Johnston, 1 Rob., 642. Ne Exeat. 
 Overruled, Beckwith v. Smith, 4 Lans., 182. 
 
 Jones V. Firemans Fund Ins. Co., 2 Daly, 307. 
 
 Affirmed, 51 N. Y., 318. 
 V. Holstein, 47 Barb., 311. Controlling 
 
 description. Approved, Thomson v. Wilcox, 7 
 
 Lang., 376. 
 
 ■ V. Judd, 4 N. Y., 411. Performance pre- 
 
 vented. Distinguished, First National Bank 
 V. Insurance Co. of North America, 5 Lans., 
 203. 
 
 • V. Phoenix Bank, 8 N. Y., 228. Reward. 
 
 Approved, Fargo v. Arthur, 43 How., 193. 
 Pleading. Approved, Scofield v. Whitelegge, 
 12 Abb., N. S.. 320. 
 
 ■ v. Terre Haute ^ R. R R. Co., 29 Barb., 
 
 353. Affirmed, 59 N. Y., 196. 
 
 V. Thompson, 6 Hill, 621. Pleading. FoL 
 
 lowed. People v. Reagle, 60 Barb., 527. 
 
 Josephine, In re, 39 N. Y., 19. Constitutional 
 law. Distinguished, Sheppard v. Steele, 43 N. 
 Y., 52. Lien. Explained and limited. Brook- 
 man V. Hamill, 43 N. Y., 554. 
 
 Joslin V. Cowee, 60 Barb., 48. Reversed, 52 N. 
 Y., 90. 
 
 Joyce v. Adams, 8 N. Y., 291. Sale when com- 
 plete. Approved, Kein v. Tupper, 42 How., 
 437 ; 33 N. Y. Supr., 465. 
 
 J. Russell Manufacturing Co. v. New Haven 
 Steamboat Co., 60 N. Y., 121. Affirmed, 52 N. 
 Y., 657. 
 
 Judah V. Harris, 19 Johns., 144. Negotiable pa- 
 per. Followed, Pardee v. Fish, 60 N. Y., 265. 
 
 Judd V. O'Brien, 21 N. Y., 186. Notice of fore- 
 closure sale. Followed, Candee v. Burke, 1 
 Hun, 546. 
 
 Jutland V. Rathbone, 39 N. Y., 396. Assignment. 
 Followed, Hedges v. Bungay, 3 Hun, 594 ; Pro- 
 duce Bank of New York v. Baldwin, 49 How., 
 277. 
 
 Justhv. National Bank of Commonwealth, 45 How., 
 492 ; 36 N. Y. Supr.; 273. Affirmed, 56 N. Y., 
 478. 
 
 Kain V. Delano, 11 Abb. N. S., 29. Reference. 
 Distinguished, De Graff v. Mackinlay, 38 N. 
 Y. Supr., 203. Explained, Maryott v. Thayer, 
 39 N. Y. Supr., 417. 
 
 Kamp V. Kamp, 44 How., 505. Affirmed, 37 N. 
 Y., 241. Reversed, 59 N. Y., 212. 
 
 Kane v. Gott, 24 Wend., 641. Trust. Distin- 
 guished, Curtis V. Smith, 60 Barb., 9. 
 
 V. People, 8 Wend., 203. Indictment. 
 
 Followed, People ex rel. Tweed v. Liscomb, 3 
 Hun, 760. Cumulative punishment. Dis- 
 tinguished, S. C, 60 N. Y., 559. 
 Keating v. New York Cent. R. R. Co., 3 Lans., 
 469. Affirmed, 49 N. Y., 673. 
 
 Keene v. La Farge, 1 Bosw., 671. Continuance 
 by representatives of dec'd. Overruled, Liver- 
 more v. Bainbridge, 43 How., 272 ; 61 Barb., 358. 
 
 Keeney v. Grand Trunk Railway Co., 59 Barb., 
 104 ; Affirmed, 47 N. Y., 525. 
 
 Keenholds v. Becker, 3 Denio, 346. Opinions of 
 witness. Questioned and distinguished, Titus 
 V. Sumner, 44 N. Y., 266. Slander. Followed, 
 Frazier v. McCloshey, 60 N. Y., 337. 
 
 Keep V. Kauffman, 86 N. Y. Supr., 141. Affirm- 
 ed, 56 N.Y., 832. 
 
 Kein V. Tupper, 42 How., 487 ; 33 N. Y. Supr., 
 465. Reversed, 52 N. Y., 650. 
 
 Keith V. .Tones, 9 Johns., 120. Negotiable paper. 
 Followed, Pardee v. Fish, 60 N. Y., 265. 
 
xxvm 
 
 CASES CRITICISED. 
 
 Kellett V. Eathbun, 4 Paige, 102. Change of realty 
 to personalty. Distinguished, In matter of 
 Thomas, 1 Hun, 473. 
 
 Kellinger v. Forty Second Street, etc. R. R. Co., 50 
 N. Y., 206. Public use in streets. Approved, 
 Trenor v. Jackson, 46 How., 389 ; 15 Abb. N. 
 S. 115. 
 
 Kellogg v. Paine, 8 How., 329. Bill of particulars. 
 Approved, Dowdney v. Volkening, 37 N. Y. 
 Supr., 313. 
 
 v. Richards, 14 Wend., 116. Parol evi- 
 dence. Approved, Howard v. Norton, 65 Barb., 
 161. 
 
 V. Sweeny, 1 Lans., 397. Modified, 46 N. 
 
 Y., 291. 
 
 V. 46 N. Y., 291. Judgment in 
 
 gold. Followed, Phillips v. Speyers, 49 N. Y., 
 653. 
 
 Kellum, In matter of will of, 6 Lans. 1 ; Re- 
 versed, 50 N. Y., 298. 
 
 Kelly V. Crapo, 41 Barb., 603. Reversed, 45 N. Y., 
 86. 
 
 V. Jeroloman, 7 Robt., 158. Continuance 
 
 of injunction. Held obsolete. Middletown, 
 Town of, V. Rondout, etc. R. R Co., 43 How., 144 ; 
 12 Abb. N. S., 276. 
 
 V. Mayor, etc. of New York, 11 N. Y., 432. 
 
 Negligence of employe. Followed, McCaf- 
 ferly v. Sput/ten Duyvil, etc. R. R. Co., 48 How. 
 44. 
 
 ■ V. Roberts, 40 N. Y., 432. Notice in at^ 
 
 taehment. Distinguished, O'Brien v. 
 chanics and Traders Ins. Co., 44 How., 213 ; 46 
 id., 429 ; 15 Abb. N. S., 222. 
 
 Kelsey v. Northern Light Oil Co., 54 Barb., 111. 
 Affirmed, 45 N. Y., 505. 
 
 Kelt^ V. Long, 1 Hun, 714. Married woman. 
 Distinguished, Weir v. Groat, 4 Hun, 193. 
 
 Kemp V. Harding, 4 How., 178. Receiver. Fol- 
 lowed, Holbrook v. Orgler, 49 How., 289. 
 
 Kennedy v. Crandall, 3 Lans., 1. Fraudulent al- 
 terations. Followed, Meyer v. Heneke, 55 N. 
 Y., 412. 
 
 V. Thorp, 2 Daly, 258. Reversed, 51 N. Y., 
 
 174. 
 
 Kenney v. People, 27 How., 202. Question for 
 jury. Approved, People v. Rogers, 13 Abb. 
 N. S., 370. 
 
 Kent V. Welch, 7 Johns. Ch., 258. Implied cove- 
 nant. Followed, Lynch v. Onondaga Salt Co., 
 64 Barb., 558. 
 
 Kerr v. Blodgett, 48 N. Y., 62. Former adjudica- 
 tion. Distinguished, O'Brien v. Browning, 49 
 How., 109. 
 
 v. Kerr, 41 N. Y., 272. Foreign adjudi- 
 cation. Followed, Sheriff v. Smith, 47 How., 
 470. 
 
 V. Mount, 28 N. Y., 659. False imprison- 
 ment. Distinguished, Hill v. Hunger, 5 Lans., 
 100. 
 
 ■ V. Purdy, 50 Barb., 24. Reversed, 51 N. 
 
 Y., 629. 
 Ketcham v. Clark, 6 Johns., 146. Dissolution of 
 
 partnership. Followed, Sistare v. Cushing, 4 
 
 Hun, 503. 
 Ketchum v. City of Buffalo, 14 N. Y., 856. Ac- 
 tion for public wrong. Followed, Ayres v. 
 
 Lawrence, 63 Barb., 454. 
 V. Evertson, 13 Johns., 359. Equity, relief 
 
 in. Approved, Page v. McDonell, 46 How., 
 
 52. 
 
 Keirstead v. Avery, 4 Paige, 9. Liens, priority. 
 Approved, Cook v. Kraft, 41 How., 279. 
 
 Kimberly v. Patchin, 19 N. Y., 330. Delivery to 
 pass title. Distinguished, Foot v. Marsh, 51 
 N. Y., 288. Higgins v. Del, Lack, and W. R. 
 iJ. Co., 60 N.Yi; 562. 
 
 Kinderhook v. Gifford, 40 Barb., 659. Statutory 
 defenses not to be discriminated against. Ap- 
 proved, Gilchrist v. Gilchrist's Executors, 44 
 How., 317. 
 
 King v. The Mayor, 86 N. Y., 190. Appeal. 
 Followed, Matter of Kingsbridge road, 4 Hun, 
 599 ; Matter of widening Broadway, 42 How., 
 220 ; 61 Barb., 488. 
 
 V. Piatt, 37 N. Y., 160. Setting aside 
 
 sale. Approved, Kellogg v. Howell, 62 Barb., 
 
 280. 
 Kingsland v. Bartlett, 28 Barb., 480. Appealable 
 
 order. Distinguished, Depew v. Dewey, 46 
 
 How., 441. 
 Kingston Bank v. Eltinge, 40 N. Y., 391. Money 
 
 paid by mistake. Followed, National Bank 
 
 of Commerce v. National Mechanic's Banking 
 
 Association, 46 How., 374. 
 Kinne v. Ford, 52 Barb., 194. Affirmed, 43 N. 
 
 Y., 587. 
 
 V. Johnson, 60 Barb., 69. Undue influ- 
 
 ence. Approved. Forman v. Smith, 7 Lans., 
 
 443. 
 Kinney V. Kiernan, 2 Lans., 492. Reversed, 49 
 
 N. Y., 164. 
 Kinnier v. Kinnier, 58 Barb., 424. Affirmed, 45 
 
 N. Y., 535. 
 
 V. Rogers, 42 N. Y., 531. Sale by execu- 
 
 tors. Distinguished, McCarty v. Deming, 4 
 Lans., 440. 
 
 Kip V. Merwin, 34 N. Y. Supr., 531. Affirmed, 52 
 N. Y., 542. 
 
 Kirby v. Fitzpatrick, 18 N. Y. 484. Appealable 
 order. Approved, Clarke v. Goodridge, 44 
 How., 226. 
 
 Kissam v. Forrest, 25 Wend., 651. Right of cross- 
 examination. Approved, People v. Cole, 43 
 N. Y., 508. 
 
 Kitts V. Massasoit Ins. Co., 56 Barb., 177. Trans- 
 fer of title. Approved, Savage v. Howard 
 Ins. Co., 44 How., 40. 
 
 Klock V. Cronkhite, 1 Hill, 107. Statutory fore- 
 closure. Approved, Mowry v. Sanborn, 62 
 Barb., 223. 
 
 Knickerbocker v. People, 57 Barb., 365. Affirm- 
 ed, 43 N. Y., 177. Presumption from posses- 
 sion. Followed, Dillon v. The People, 1 Hun, 
 670. 
 
 Knickerbocker Life Ins. Co., v. Ecclesine, 6 Abb. 
 N. S., 9. Affirmed, 42 How., 201 ; 11 Abb. 
 N. S., 385; 34N.Y. Supr., 76. 
 
 Knox V. Jonas, 47 N. Y., 389. Will, void devise. 
 Distinguished, VanSchuyver v. Mulford, 59 N. 
 Y., 426. 
 
 Koenig v. Steckel, 36 N. Y. Supr., 167. Affirmed, 
 58 N. Y., 475. 
 
 Kortright v. Cady, 21 N. Y., 243. Tender of 
 mortgage debt. Distinguished, Halstead v. 
 Swarty, 46 How., 289. 
 
 V. Commercial Bank, 22 Wend., 348. 
 
 Sale by agent of pledgee. Approved, McNiel 
 V. Tenth National Bank, 46 N. Y., 325. 
 
 Rowing v. Manley, 57 Barb., 479. Reversed, 13 
 Abb. N. S., 276 ; 49 N. Y., 192. 
 
CASES CRITICISED. 
 
 XXLX 
 
 Krom V. Levy, \ Hun, 171. Reargument denied, 
 4 Hun, 79. 
 
 Kuhlman v. Orser, 5 Duer, 242. Notice in attach- 
 ment. Followed, O'Brien v. Mechanics and 
 Traders F. Ins. Co., 45 How., 453 ; 14 Abb. N. 
 S., 314; 36 N. Y. Supr., 110. 
 
 Lacker v. lUioads, 45 Barb., 499. Reversed, 51 
 N. Y., 641. 
 
 JLadd V. Moore, 3 Sandf., 589. Rescission. Ap- 
 proved, Harris v. Equitable Life Ass. Co., 3 
 Hun, 724. 
 
 LaFarge v. Exchange Fire Ins. Co., 22 N. Y., 853. 
 Examination of party. Approved, Carr v. 
 Great Western Insurance. Co., 3 Daly, 160. 
 
 Lake Ontario, etc. R. R. Co., v. Mason, 16 N. Y., 
 451. Corporation, right of withdrawal. Dis- 
 tinguished, People ex rel. Irwin v. Sawyer, 52 
 N. Y., 296. 
 
 Lamatt v. Hudson Riv. Fire Ins. Co., 17 N. Y., 
 199. Parol evidence to vary policy. Approved, 
 Pohalaski v. Mutual Life Ins. Co., 46 How., 604 ; 
 36 N. Y., Supr. 234. 
 
 Lamb V. Camden and Amboy R. R. and Trans. Co., 
 2 Daly, 454. Reversed on question of burden 
 of proof, 46N. Y., 271. Carrier's liability. 
 Approved, Wetzell v. Dinsmore, 4 Daly, 193. 
 
 V. , 46 N. Y., 271. Burden of proof. 
 
 Distinguished, Coleman v. Livingston, 36 N. Y. 
 Supr., -32; The J. Russell Manuf. Co. v. 
 N. H. Steamboat Co., 50 N. Y., 121. Carrier's 
 liability. Approved, Rawson v. Holland, 47 
 How., 292. Followed, Condict v. Grank Trunk 
 Railway Co., 54 N. Y., 500. Maguire v. Dins- 
 more, 66 N. Y., 168. 
 
 L'Amoureux v. Gould, 7 N. Y., 349. Considera- 
 tion. Approved, Sanders v. Gillespie, 64 Barb., 
 628. 
 
 Lampman v. Milks, 21 N. Y., 512. Easement. 
 Approved, Butterworth v. Crawford, 3 Daly, 56. 
 Followed, Roberts v. Roberts, 7 Lans., 55. Dis- 
 tinguished, Crippen v. Morss, 49 N. Y., 63. 
 
 Landers v. Staten Island R. R. Co., 13 Abb. N. 
 S., 338. Reversed, 14 Abb. N. S., 340 : 53 N. 
 Y., 450. 
 
 V. 14 Abb. N. S., 346 ; 63 N. Y., 
 
 460. Constitutional law. Followed, Rae v. 
 Mayor, etc. of New York, 39 N. Y. Supr., 192. 
 Jurisdiction. Followed, Spyer v. Fisher, 37 N. 
 Y. Supr., 93 ; Towle v. Covert, 15 Abb. N. S., 
 193 ; Hoag v. Lament, 60 N. Y., 96. 
 
 Landon v. Mayor, etc., 39 N. Y. Supr. 467. Local 
 ofiScers. Followed, Whitmoire v. The Mayor, 
 etc., 6 Hun, 195 ; Jarvis v. The Mayor, etc., 49 
 How., 364. 
 
 Landt V. Hills, 19 Barb., 283. Party, when pro- 
 tected by erroneous process. Followed, Hall 
 V. Munger, 5 Lans, 100. 
 
 Langdon v. Bush, 9 Wend., 80. Pledge, what 
 is. Approved, Bunacleugh v. Poolman, 3 Daly, 
 236. 
 
 Langley v. Warner, 3 N. Y., 327. Attorney, lia- 
 bility for money received. Distinguished, 
 Wilmerdings v. Fowler, 14 Abb. N. S., 249; 65 
 N. Y., 641. 
 
 Lariing v. New York Cent. R. R. Co., 49 N. Y., 
 521. Master's liability to servant. Followed, 
 King v. New York Cent, and Hud. Riv. R. R. 
 Co., 4 Hun, 769 ; Ross v. New York Cent. R. R. 
 Co., 6 Hun, 488. 
 
 Lannen v. Albany Gas Light Co., 46 Barb., 264. 
 Affirmed, 44 N. Y., 459. 
 
 Lansing v. Lansing, 41 How., 248. Reversed, 4 
 Lans., 377. 
 
 45 Barb., 191. Compound in- 
 
 terest. Followed, Bennett v. Cook, 2 Hun, 526. 
 ■ V. McPherson, 3 Johns. Cli., 524. Refund- 
 
 ing to purchaser on foreclosure. Followed, 
 Raynor v. Selmes, 62 N. Y., 679. 
 
 ■ V. Smith, 4 Wend., 1. Navigable waters. 
 
 use of. Followed, Boefl y. Seaman, 38 N. Y, 
 Supr., 62. 
 
 Lapham v. Rice, 63 Barb., 485. In part reversed, 
 66N. Y., 472. 
 
 Lasher v. Williamson, 55 N. Y., 619. Defense by 
 surety. Distinguished, Bookstaver v. Jayne, 60 
 N. Y., 146. 
 
 Lathrop v. Heacock, 3 Abb. Law Jour., 213. 
 Foreclosure, notice to wife. Explained, North- 
 rup V. Wheeler, 43 How., 122. 
 
 Latourette v. Clark, 45 Barb., 327; 30 How., 242. 
 Reversed, 51 N. Y., 639. 
 
 Lattin v. Vail, 17 Wend., 188. Defense. Dis- 
 tinguished, Sweetman v. Prince, 62 Barb., 256. 
 
 Lawrence v. Ball, 14 N. Y., 477. Presumption. 
 Approved, Central Bank of Troy v. Heydorn, 
 48 N.Y., 260. Former adjudication. Ap- 
 proved, Johnson v. Albany and Susq. R. R. Co., 
 6 Lans., 222. 
 
 V. Bank of the Republic, 6 Rob., 497. Ju- 
 
 risdiction of appeal after remittitur. Overruled, 
 Cushman v. Hadfield, 16 Abb. N. S. 109 ; 62 
 N. Y., 663. 
 
 V. Farmers Loan and Trust Co., 13 N. Y., 
 
 200. Foreclosure. Distinguished, Elliott v. 
 Wood, ib N. Y., 71. 
 
 • V. Fox, 20 N. Y., 268. Statute of frauds.' 
 
 Approved, Schindler v. Euell, 45 How., 33. Dis- 
 tinguislied, Garnsey r. Rogers, 47 N. Y., 233. 
 ■ v. Maxwell, 6 Lans., 469 ; 64 Barb., 102. 
 
 Affirmed, 53 N. Y., 19. 
 
 Lawton V. Keil, 34 How., 465. Attachment. Fol- 
 lowed, Clews V. Rockford, R. I. and St. L. R. 
 R. Co., 2 Hun, 379. 
 
 Lea V. Wolf, 13 Abb. N. S., 389. Modified, 46 
 How., 157 ; 16 Abb. N. S., 1. 
 
 Leavenworth v. Brockway, 2 Hill, 202. Presump- 
 tion as to foreign laws. Followed, McCulloch 
 V. Norwood, 36 N. Y. Supr, 180. 
 
 Leavitt V. Cruger, 1 Paige, 421. Appearance by 
 husband for wife. Approved, Lathrop v. Hea- 
 cock, 4 Lans., 1. Service on husband. Follow- 
 ed, Watson v. Church, 3 Hun, 80. 
 
 V. Palmer, 3 N. Y., 19. Action on illegal 
 
 contract. Distinguished, Saratoga Co. Bank v. 
 King, 44 N. Y., 87. 
 
 ■ V. Thompson, 56 Barb., 542. Reversed, 
 
 52 N. Y., 62. 
 
 Ledwich v. McKim, 35 N. Y. Supr., 304. Affirm- 
 ed, 63 N. S., 307. Burden of pl-oof. Disting- 
 uished, Holbrook V. Ni .1. Zinc Co., 57. N. Y., 
 616. Pleading. Distinguished, Beard v. 
 Yates, 2 Hun, 466. 
 
 Lee V. Chadsby, 2 Keyes, 543 ; 3 id., 225. Cred- 
 ibility of witness. Approved, White v. Mc- 
 Lean, 47 How., 193. 
 
 V. Stanley, 9 How., 272. Non-resident. 
 
 Approved, Murphy v. Baldwin, 41 How., 262 ; 
 11 Abb. N. S., 407. 
 
 Leeds v. Brown, 1 Rob., 10. Auctioneer's com- 
 pensation. In part overruled, Russell v. Miner, 
 6 Lans., 637 ; 61 Barb., 634. 
 
 Lefferts V. Brampton, 24 How., 267. Discovery. 
 
XXX 
 
 CASES CRITICISED. 
 
 Followed, Union Paper Collar Co. v. Met. Col- 
 lar Co., 3 Daly, 171. 
 
 Lefler v. Field, 52 N. Y., 621. Variance. Dis- 
 tinguished, Dudley v. Scranton, 57 N. T., 424. 
 
 Legg v. Dorsheim, 19 Wend., 700. Change of 
 Venue. Held obsolete, Sherman v. Oregon/, 42 
 How., 481. 
 
 Leggett v. Hunter, 19 N. Y., 446. Constitutional 
 law. Distinguished, Brevoort y. Orace, 53 N. 
 Y., 245. 
 
 V. Mutual Life Ins. Co., 64 Barb., 23. Re- 
 versed, 53 N. Y., 394. 
 
 Leitch V. Wells, 48 Barb., 637. Reversed, 48 N. 
 Y., 685. Action by cestui -que trust. Followed, 
 Sortore v. Scott, 6 Lans., 271. 
 
 Leland V. Tousey, 6 Hill, 328. Mesne profits. 
 Distinguished, Thompson v. Bower, 60 Barb., 
 483. Notice lis pendens. Criticised, Thompson 
 V. Clark, i Hun, 164. 
 
 Lennon v. Mayor, etc. ofNiw York, 55 N. Y., 861. 
 Statutory construction. Followed, Astor v. 
 Mayor, etc., 37 N. Y. Supr., 539. Assessments, 
 relief against. Followed, Astor v. Mayor, etc., 
 39 id., 120. Constitutional law. Followed, i2ae' 
 V. The Mayor, etc., id. 192. 
 
 Lennox v. Hoppock, 1 Sweeny, 466. New trial. 
 Approved, Schroff v. Baner, 42 How., 348 ; 83 
 N. y. Supr. 199. 
 
 Leonard v. Vredenburgh, 12 Johns., 88. Statute of 
 frauds. Followed, Schindler v. Euell, 45 How., 
 83. 
 
 LeRoy v. Gouverneur, 1 Johns. Cas., 226. Marine 
 insurance. Distinguished, Wallerstein v. Co- 
 lumbian Ins. Co., 44 N. Y., 204. 
 
 Leroy v. Market Ins. Co., 39 N. Y., 90. Insur- 
 ance. Followed, Steward v. Phoenix F. Ins. 
 Co., 5 Hun, 261. 
 
 V. United States Ins. Co., 7 Johns., 343. 
 
 Insurance. Followed, Funke v. Orient Mut. 
 Ins. Co., 38 N. Y. Supr., 349. 
 
 Leslie v. Leslie, 3 Daly, 194. Affirmed, 10 Abb. 
 N. S., 64. 
 
 Leven v. Smith, 1 Denio, 571. Compromise. Ap- 
 proved, Organ v. Stewart, 1 Hun, 411. 
 
 Levin v. Russell, 42 N. Y., 251. Complaint for 
 claim and delivery. Followed, Simmons v. 
 iMons, 36 N. Y. Supr., 654, Van Der Minden v. 
 Elsas, 36 N. Y. Supr., 66. Distinguished, Sco- 
 jfield V. Whitelegge, 12 Abb. N. S., 820. Refil- 
 ing chattel mortgage. Criticised, Porter v. 
 Parmley, 43 How., 445 ; 34 N. Y. Supr., 398. 
 Replevin. Followed, Treat v. Hathorn, 3 Hun, 
 646. 
 
 Levy V. Brush, 8 Abb. N. S., 418; 1 Sweeny, 
 653. Reversed, 45 N. Y., 589. 
 
 V. Levy, 33 N. Y.,97. Trust. Followed, 
 
 In matter of Fox, 63 Barb., 157 ; 52 N. Y., 530. 
 
 Distinguished, Adams v. Perry, 43 id. 487. 
 Lewis V. Graham, 4 Abb. N. S., 106. Conversion 
 
 of pledge. Approved, Read v. Lambert, 10 
 
 Abb. N. S., 428. 
 
 ■ v. Greider, 49 Barb., 
 
 Affirmed, 61 
 
 N. y., 231. 
 
 - V. Lewis, UN. Y., 226. Publication of 
 
 will. Approved, Trustees of Auburn Theological 
 Seminary v. Calhoun, 62 Barb., 381. 
 
 Libby V. Rosekrans, 55 Barb., 202. Action. Over- 
 ruled, Hackley v. Draper, 60 N. Y., 88. 
 
 Lightbody v. Ontario Bank, 11 Wend., 11. Pay- 
 ment, Approved, Roberts v. Fisher, 43 N. Y., 
 159. 
 
 Lincoln V. Battelle, 6 Wend., 475. Taking testi- 
 mony abroad. Approved, Froude v. Froude, 1 
 Hun, 176. 
 
 Lindauer v. Fourth National Bank, 65 Barb., 75. 
 Bank lien on collection paper. Followed, Dod 
 V. Fourth National Bank, 59 Barb., 266. 
 
 Lindsay v. Jackson, 2 Paige, 581. Set-ofE equit- 
 able! Followed, Smith v. Felton, 43 N. Y., 419. 
 
 Lindsley v. Diefendorf, 43 How., 91. Costs. Fol- 
 lowed, Williams v. Blumer, 49 How., 12. 
 
 Link V. Sherman, 26 Barb., 433. Contract to pay 
 by will. Distinguished, Campbell v. Campbell, 
 65 Barb., 639. 
 
 Linsey v. Ferguson, 3 Lans., 196. Affirmed, 49 
 N. 'Y., 623. 
 
 Litchjield v. Vernon, 41 N. Y., 123. Burden of 
 nroof. Approved, Weinberger v. Faurbach, 14 
 Abb. N. S., 91 ; 4 Daly, 564. Constitutional 
 law. Approved, People ex rel. N. Y. ^ Harlem 
 R. R. Co. V. Havemeyer, 47 How., 494. 
 
 Livermore v. Bainbridge, 43 How., 272 ; 61 Barb., 
 358. Continuance by representatives of de- 
 ceased defendant. Affirmed, S. C, 49 N. Y., 
 125. 
 
 ■,44 How., 367. Affirmed, 47 
 
 How., 350-4; 14 Abb. NvS., 227; 15 id., 436. 
 Appealable order. Followed, .leffras v. The 
 McKillop and Sprague Co., 48 How., 122 ; 2 
 Hun, 361: Gowdy v. Poullain, 2 Hun, 218. 
 
 Livingston, Matter of, 34 N. Y., 556. Trust. 
 Followed, In re Schell, 49 N. Y., 663. Dis- 
 tinguished, Heermans v. Robertson, 3 Hun, 464. 
 
 Livingston v. Adams, 8 Cow., 175. Negligence. 
 Followed, Losee v. Buchanan, 51 N. Y., 476. 
 V. Amoux, 16 Abb. N. S., 158. Affirmed, 
 
 56 N. Y., 607. 
 
 • V. Green, 6 Lans., 60. Affirmed, 52 N. Y., 
 
 118. 
 
 V. Livingston, 4 Johns. Ch., 294. Presump- 
 tion. Distinguished, Lyon v. Adde, 63 Barb., 
 
 89 ; Central Bank of Troy v. Heydom, 48 N. Y., 
 
 260. 
 v. Peru Iron Co., 9 Wend., 511. Adverse 
 
 possession. Distinguished, Sands v. Hughes, 
 
 53 N. Y., 286. 
 V. Tanner, 12 Barb., 481. Ejectment. 
 
 Followed, Lamed v. Hudson, 57 N. Y., 161. 
 Livingstone v. Byrne, 11 Johns., 565. Setting aside 
 
 sale. Approved, Kellogg v. Howell, 62 Barb., 
 
 280. 
 Lobdell V. Stowell, 37 How., 88. Affirmed, 61 N. 
 
 Y., 70. 
 
 Locklin V. Moore, 6 Lans., 307. Affirmed, 57 N. 
 
 Y., 360. 
 Loeschigk v. Bridge, 42 N. Y., 421. Fraudulent 
 
 conveyance. Followed, Ruhl y. Phillips, iS 
 
 N. Y., 126. 
 
 ■ V. Hatfield, 6 Bob., 26. Affirmed, 61 N. 
 
 Y., 660. 
 Lomer v. Meeker, 26 N. Y., 863. Credibility of 
 
 witness. Approved, Stafford v. Leamy, 43 
 
 How., 40; 84 N. Y. Supr., 269. Nonsuit. 
 
 Approved, Robinson v. McManus, 4 Lans., 380. 
 Long V. New York Central R. R. Co., 50 N. Y., 
 
 76. Carrier's liability. Followed, Hinckleu. y. 
 
 Same, 56 N. Y., 429. 
 Long Island R. R. Co., Matter of, 45 N. Y., 364. 
 
 Appropriation of land. Followed, Wallkill 
 
 Valley R. R. Co. v. Norton, 12 Abb. N. S., 317. 
 
 Change of route. Followed, People ex rel. E. 
 
 Sr G. V. R. R. Co. V. Tubbs, 49 N. Y., 856. 
 
CASES CRITICISED. 
 
 XXXI 
 
 LongiBorthy v. Knapp, 4 Abb. N. S., 115. Plead- 
 ing. Distinguished, Rmdiger v. Simmons, 14 
 Abb.N. S.,256. 
 
 Loomis V. Ruck, 14 'Abb. N. S., 385. Reversed 
 in part, 56 N. Y., 462. 
 
 — V. Tifft, 16 Barb., 541. Action to set 
 
 aside fraudulent conveyance. Approved, 
 Kamp V. Kamp, 46 How., 143. 
 
 Loonie v. Hogan, 9 N. Y., 485. Mechanic's lien. 
 Followed, Stuyvesanl v. Brouminq, 83 N. Y. 
 Supr., 203. 
 
 Lord V. Underdunck, 1 Sandf, Ch., 46. Vendor 
 and vendee. Distinguished, Cavalli v. Allen, 
 57 N. Y., 508. 
 
 Lorillard v. Town of Monroe, 11 N. Y., 392. Re- 
 covery back of illegal tax. Distinguished, 
 Bank of the Commonwealth v. Mayor, etc. of 
 New York, 43 N. Y., 184 ; Newman v. Board of 
 Supervisors of Livingston Co., 45 N. Y., 676. 
 
 Losee V. Buchanan, 61 Barb., 86. Reversed, 51 
 N. Y., 476. 
 
 V. , 51 N. Y., 476. Negligence. 
 
 Distinguished, Mullen r. St. John, 67 N. Y., 
 567. 
 
 Lounsbury v. Purdy, 18 N. Y., 515. Trust. Fol- 
 lowed, Brown v.' Cherry, 57 N. Y., 645. 
 
 Lave V. Palmer, 7 Johns., 160. Bond taken by 
 public officer. Approved, Richardson v. Cran- 
 dall, 48 N. Y., 348. 
 
 Lowery v. Steward, 25 N. Y., 2.39. Assignment. 
 FoUowed, Gallagher v. Nichols, 60 N. Y., 438. 
 
 Lownds V. Bemsen, 7 Wend., 35. Satisfaction of 
 judgment. Distinguished, Booth v. Farmers 
 and Mechanics National Bank, 4 Lans., 801. 
 
 Lowry v. Inman, 37 How., 153 ; 6 Abb. N. S., 394. 
 Affirmed, 2 Sweeny, 117 ; and again, 46 N. Y., 
 117. 
 
 Luce V. Hartshorn, 7 Lans., 331. Affirmed, 56 N. 
 Y., 621. 
 
 Ludden v. Sazen, 31 Barb., 650. Execution, 
 what subject to. Distinguished, Powell v. 
 Preston, 1 Hun, 513. 
 
 Luting v. Atlantic Mut. Ins. Co., 50 Barb., 520 ; 80 
 How., 69 ; Affirmed, 51 N. Y., 207. 
 
 Lumbard v. Syracuse, Bing. and N. Y. R. R. Co., 
 64 Barb., 609. Modified, 55 N. Y., 491. 
 
 T. , 55 N. Y., 491. Mechanic's 
 
 lien. Followed, Crane v. Genin, 60 N. Y., 127. 
 
 Lush V. Druse, 4 Wend., 314. Evidence. Ap- 
 proved, Whelan v. Lynch, 60 N. Y., 469. 
 
 Lutz v. Ey, 3 E. D. Smith, 630. Discharge of 
 lien. Held obiter. Matter of lien on 740 Broad- 
 way, 15 Abb. N. S., 385. 
 
 Lynch v. Crary, 34 N. Y. Supr., 461. Reversed, 
 14 Abb. N. S., 85 ; 62 N. Y., 181. 
 
 T. Johnson, 46 Barb., 56. Affirmed, 48 N. 
 
 Y., 27. 
 
 • V. Mosher, 4 How., 86. 
 
 Practice, change 
 of venue. Explained, Sherman v. Gregory, 42 
 How., 481. 
 
 Lynes v. Townsend, 68 N. Y., 558. Wills. Dis- 
 tinguished, Youngs v. Youngs, 45 N. Y., 254. 
 
 Lyon V. Blossom, 4 Duer, 818. Arbitration. Ap- 
 proved, Day v. Hammond, 57 N. Y., 479. 
 
 V. Chase, 51 Barb., 14. Presumption. 
 
 Disapproved, Lyon v. Adde, 63 Barb., 89. 
 
 ■ V. Jerome, 26 Wend., 485. Trespass by 
 
 contractor with State. Approved, /St. Peter y. 
 Denisdn, 58 N. Y., 416. 
 — — V. Yates, 52 Barb., 237. False imprison' 
 
 ment. Distinguished, HUl v. Munger, 5Lans., 
 100. 
 
 Lytle V. Beveridge, 1 Lans., 225. Affirmed, 58 N. 
 Y., 592. 
 
 Mack V. Patchen, 42 N. Y., 171. Implied cove- 
 nant. Explained, Gallup v. Albany Railway, 7 
 Lans., 471. 
 
 Macomber v. Mayor, etc. of New York, 17 Abb., 
 38. Jurisdiction by appearance. Disapproved, 
 Schwinger v. Hickox, 46 How., 114. 
 
 Madison Ave, Bapt. Church v. Bapt. Church in 
 Oliver St., 1 Sweeny, 109. Reversed, 11 Abb. 
 N. S., 182 ; 46 N. Y., 131. 
 
 Madison Co: Bank v. Gould, 6 Hill, 809. Notice 
 of limited partnership. Approved, Levy v. 
 Lock, 47 How., 894. Liability of special part- 
 ner. Approved, First National Bank of Canan- 
 daigua v. Whitney, 4 Lans., 35. 
 
 Maghee v. Camden and Amboy R. R. Co., 46 N. 
 Y., 514. Carrier's liability. Distinguished, 
 Rogers v. Wheeler, 6 Lans., 420. .^tna Ins. Co. 
 V. Wheeler, 49 N. Y., 616. Cochran v. Dinsmore, 
 49 N. Y., 249. 
 
 Magnin v. Dinsmore, 85 N. Y. Supr., 182. Re- 
 versed, 56 N. Y., 168. 
 
 MahUm v. Demarest, 1 Robt., 717. Creditor's 
 suit. Approved, O'Brien v. Browning, 49 How., 
 109. 
 
 Mali V. Lord, 39 N. Y., 381. Master's liability 
 for tort of servant. Followed, Isaacs v. Third 
 Ave. R. R. Co., 47 id., 122. 
 
 Mallory v. Gillett, 21 N. Y., 417. Statute of 
 frauds. Followed, Sanders v. Gillespie, 64 
 Barb., 628 ; Meriden Brittania Co. v. Zingson, 
 48 N. Y., 247. Distinguished, Booth v. Eighmie, 
 60 N. Y., 238. 
 
 V. Supervisors of Cortland Co., 2 Cow., 
 
 631. Extra compensation. Approved, Cowan 
 V. Mayor, etc. of New York, 3 Hun, 632. 
 
 Maloney v. Dows, 18 How., 27. Motion for new 
 trial. Approved, Raphelsky v. Lynch, 43 How., 
 157; 12 Abb. N. S., 224; 34 N. Y. Supr., 81. 
 
 Mangam v. Brooklyn City R. R. Co., 38 N. Y., 
 455. Negligence. Approved, Pendril v. /Sec- 
 ond Ave. R. R. Co., 43 How., 399 ; 34 N. Y. 
 Supr., 481. Followed, Mullaney v. Spence, 15 
 Abb. N. S., 319. 
 
 Manhattan Co. v. Eveilson, 6 Paige, 457. Dower, 
 how barred. Approved, Elmendorfv. Lockwood, 
 4 Lans., 393. Distinguished, Maloney v. Hainan, 
 12 Abb. N. S., 289. 
 
 Manhattan Brass and Manuf. Co. v. Sears, 1 
 Sweeny, 426. Affirmed, 46 N. Y., 797. 
 
 Manhattan Gas-light Co. v. Barker, 36 How., 238. 
 Nuisance. Approved, Hutchins v. Smith, 63 
 Barb., 25. 
 
 Manhattan Oil Co. v. Camden and Amboy R. R, &■ 
 F. Co., 62 Barb., 72 ; 5 Abb. N. S., 289. Af- 
 firmed, 54 N. Y., 197. 
 
 Manice v. Manice, 1 Lans., 848. Reversed in 
 part, 43 N. Y., 303. 
 
 V. , 43 N. Y., 303. Void trust. 
 
 Followed, Van Schuyver v. Mulford, 69 N. Y., 
 426. Severing void and valid trusts. Distin- 
 guished, Knox V. Jones, 47 N. Y., 389. 
 
 Mann v. Eckford's Executors, 16 Wend., 502. 
 Guaranty. Approved, Putnam v. Schuyler, 4 
 Hun, 166. 
 
 V. Pentz, 8 N. Y., 415. Trusts. Followed, 
 
 Graham v. Hoy, 38 N. Y. Supr., 506. 
 
 Marble v. Hatfield, 2 Johns., 455. Payment. Ap- 
 proved, Roberts v. Fisher, 48 N. Y., 159. 
 
xxxu 
 
 CASES CRITICISED. 
 
 Maretzeh v. Cauldwell, 2 Rob., 715. Pleading in 
 mitigation. Approved, Fink v. Justh, 14 Abb. 
 N. S., 107. 
 
 Marine Bank of Chicago v. Van Brunt, 61 Barb., 
 361. Affirmed, 49 N. Y., 160. 
 
 V. Wright, 46 Barb., 45. Aflirmed, 48 N. 
 
 Y., 1. 
 
 Marine National Bank v. National Citii Bank, 36 
 N. Y.-Supr., 470. Reversed, 59 N. Y., 67. 
 
 Markham v. Jaudon, 41 N. Y., 235. Broker. 
 Distinguished, Stewart v. Drake, 46 N. Y., 452. 
 Damages, wrongful sale of pledge. Distin- 
 guished, Bryan v. Baldwin, 52 N. Y., 232. 
 Overruled, Baker v. Drake, 58 id., 211. 
 
 Marquand v. New York Manuf.Co., 17 Johns., 526. 
 
 Dissolution of partnership. Followed, Sistare 
 
 v. Cushing, 4 Hun, 503. 
 Marquat v. Marquat, 12 N. Y., 336. Modification 
 
 on appeal. Distinguished, Cuff -v. Dorland, 57 
 
 N. Y., 560. 
 Marquisse v. Brigham, 12 How., 399. Costs. Ap- 
 proved, Bernhard v. Kapp, 11 Abb. N. S., 342. 
 Marsh V. City of Brooklyn,^ Hun, 142. Reversed, 
 
 59N. Y.,280. 
 V. Davison, 9 Paige, 580. Examination of 
 
 party. Approved, Winston v. English, 44 How., 
 
 398. 
 V. Ellsworth, 2 Sweeny, 589. Affirmed, 
 
 50N. Y., 309. 
 V. Falker, 40 N. Y., 565. False repre- 
 sentations. Followed, Livingston v. Keech, 34 
 
 N. Y. Supr., 547 ; Meyer v. Amidm, 46 N. Y., 
 
 169. 
 Martin v. Famsworth, 41 How., 69 ; 33 N. Y. 
 
 Supr. 246. Affirmed, 49 N. Y., 555. 
 V. Franklin, 4 Johns. 124. Damages on 
 
 foreign draft. Disapproved, Guiteman v. 
 
 Davis; 3 Daly, 120. Distinguished, Gunther v. 
 
 CMn, 3 id., 125. 
 
 - V. Hawks, 15 Johns., 405. Lien of attorney. 
 
 Approved, Rich y. Niagara Savings Bank, 3 
 Hun, 481. 
 Matthews v. Coe, 66 Barb., 430. Reversed, 49 
 N. Y. 57. 
 
 49 N. Y., 57. Damages. Ap- 
 
 proved, Price V. Keyes, 1 Hun, 177 ; Whelan v. 
 Lynch,- 60 N. Y., 469. Distinguished, Lobdell v. 
 Stowell, 51 N. Y., 70. 
 
 ■ V. Harsel, 1 B. D. Smith, 393. Lost goods. 
 
 right to. Followed, New York If Harlem R. 
 R. Co., V. Haws, 35 N. Y. Supr., r~ 
 
 ■ V. Howard Ins. Co., 11 N. Y., 14. In- 
 
 surance. Followed, O'Brien v. Commercial 
 Fire Ins. Co., 38 N. Y. Supr., 517. 
 
 ■ V. Matthews, 2 N. Y., 514- Evidence. 
 
 Approved, Bishop v. Garcia, 14 Abb. N. S., 69. 
 ■ V. McCormick, 8 N. Y., 331. Mistake of 
 
 law. Distinguished, Leggett v. Mut. Life Ins. 
 Co. of New York, 64 Barb., 9. 
 
 ■ V. Mayor, etc, of Brooklyn, 1 Hill, 546. 
 
 Municipal Corporations, liability. Followed, 
 
 Maximilian v. Mayor, etc., 2 Hun, 263. 
 Martine v. Inter. L. Ass. Socy. of London, 6 Lans., 
 
 535 ; 62 Barb., 181. ModifleS, 53 N. Y., 339. 
 Marvin v. Inglis, 39 How., 829. Validity of 
 
 deed. Followed, Marvin v. Lewis, 61 Barb., 
 
 49. 
 V. Smith, 56 Barb., 600. Affirmed, 46 
 
 N. Y., 671. Trust. Distinguished, Heermans 
 
 V. Robertson, 8 Hun, 464. 
 
 V. Hymers, 12 N. Y., 228. 
 
 Usury. Fol- 
 lowed, Mosher v. Randall, 52 N. Y., 649. 
 
 Mason's case, 1 Barb., 436. Custody of lunatics. 
 Approved, Parsee Merchant's case, 11 Abb. 
 N. S., 209 ; 3 Daly, 629. 
 
 Mason V. Lord, 40 N. Y., 477. Appeal, finding 
 without evidence. Followed, Root v. Great 
 Western R. R. Co., 46 N. Y., 524. Usury. Fol- 
 lowed, Carow V. Kelly, 59 Barb., 239. 
 
 V. Sudam, 2 Johns. Ch., 172. Tender, 
 
 effect of. Followed, Tiffany v. St. John, 6 
 Lans., 163. 
 
 Massachusetts Life Ins. Co. v. Carpenter, 2 Swee- 
 ny, 734. Affirmed, 49 N. Y., 668. 
 
 Masson v. Bovet, 1 Denio, 47. Rescission for fraud. 
 
 FoUowed, Green v. Plank, 48 N. Y., 669. 
 Maxon V. Scott, bb N. Y., 261. Married woman. 
 
 Followed, Weir v. Gioat, 4 Hun, 193. 
 Maybee v. Sniffin, 2 E. D. Smith, 1. Alteration. 
 
 Approved, O'Donnell v. Harmon, 3 Daly, 424. 
 Mayer, In matter of, 60 N. Y., 604. Assessment, 
 
 irregularity cured. Followed, Williamson v. 
 
 Mayor, etc. of New York, 3 Hun, 66. Title of 
 
 private act. Followed, People ex rel. New 
 
 York and Harlem R. R. Co. v. Havemeyer, 3 
 
 Hun, 97 ; S. C, 47 How., 494. 
 
 Mayer v. The Mayor, etc. of New Yoi-k, 2 Hun, 
 306. Reaffirmed, 4 id., 673. Money paid. 
 Followed, Dietrich v. Mayor, etc., 5 Hun, 421. 
 
 Mayor, etc. of Albany v. Cunliff 2 N. Y., 165. 
 Negligence. Approved. Losee v. Clute, 51 
 N. Y., 494 ; Losee v. Saratoga Paper Co., 42 
 How., 885. 
 
 Mayor of Hudson v. ITiame, 7 Paige, 261. Power 
 of municipal corporation. Distinguished, City 
 of Troy V. Winters, 2 Hun, 63. 
 
 Mayor, etc. of New York, In matter of, 11 Johns., 
 77. Assessment not a tax. Followed, In 
 matter of Petition ofN. Ford, 6 Lans., 92. Of 
 church property. Overruled, People ex rel. 
 Howlett V. Mayor, etc. of Syracuse, 2 Hun, 433. 
 
 Mayor, etc. of New York v. Brooklyn Fire Ins. Co., 
 41 Barb., 231. Parol evidence. Approved, 
 Pohalaski v. Mutual Life Ins. Co., 46 How., 504 ; 
 86 N. Y. Supr., 284. 
 
 V. Colgate, 12 N. Y., 140. Assessment. 
 
 Followed, Fisher v. Mayor, etc. of New York, 
 3 Hun, 648. 
 
 ■ V. Erben, 38 N. Y., 306. Appeal. Dis- 
 
 tinguished, Matter of Kingsbridqe Road, 4 Hun, 
 599. Explained, In matter of Oommissioners of 
 Central Park, etc., 4 Lans., 467 ; 61 Barb., 40. 
 
 - V. Flagg, 6 Abb,, 296. Injunction. Ap- 
 
 proved, Palmer v. Foley, 45 How., 110 : 36 
 N. Y. Supr., 14. 
 
 - Furze, 3 Hill, 612. Statutes, construction 
 
 of. . Approved, People ex rel. Otsego County 
 Banky. Supervisors of Otsego County, 51 N. Y., 
 401. 
 
 ■ v. Parker Vein Steamship Co., 21 How, 
 
 289 ; 12 Abb., 300 ; 8 Bosw., 300. Counter- 
 claim. Distinguished, Chamboret v. Cagney, 41 
 How., 125 ; 10 Abb. N. S., 31 ; 2 Sweeny, 378. 
 
 McAndrew v. Whitlock, 2 Sweeny, 623. Affirmed, 
 52N. Y..40. 
 
 McBride y. Farmers' Bank, 26 N. Y., 460. Bona 
 fide holder. Approved, Philbrick v. Dallett, 43 
 How., 419 ; 12 Abb. N. S., 419 ; 34 N. Y. Supr., 
 870. 
 
CASES CRITICISED. 
 
 xxxm 
 
 McBumeyv. Williams, 42 Barb., 390. Affirmed 
 sub. nom., Dodge v. Wellman, 43 How., 427. 
 
 JfcCaiWs case, 16jN. Y., 58. Public act. Dis- 
 tinguished, People y. Davis, 61 Barb., 456. 
 
 McCartney v. Bostwick, 32 N. Y., 52. Pleading. 
 Distinguished, Elwell v. Johnson, 3 Hun, 558. 
 Resulting trust to creditors. Distinguished, 
 Ocean National Bank v. Olcott, 46 N. Y., 12. 
 
 — V. Welch, 44 Barb., 27. Affirmed, 51 
 
 N. Y., 626. 
 
 McCarty v. C% o/<S«mc«se, 46 Barb., 194. Neg- 
 ligence. FoUowea, Niins v. Mayor, etc. of 
 Troy, 69 N. Y., 500. 
 
 McCaughey v. Smith, 27 N. Y., 39. Alteration 
 
 of note. Followed, Card t. Miller, 1 Hun, 504. 
 McClavev. Paine, 41 How., 140; 2 Sweeny, 407. 
 
 Affirmed, 49 N. Y., 561. 
 McCollv. Sun Mut. Ins. Co., 34 N. Y. Supr., 310. 
 
 Affirmed, 44 How., 452 j and again, 50 N. Y., 
 
 332. 
 McCormick y. Sarson, 1 Sweeny, 161; 38 How., 
 
 190. - Affirmed, 45 N. Y.,266. Sale, rescission 
 
 of. Distinguished, Z)atf v.PooZ, 63 Barb., 506; 
 
 52 N. Y., 416. 
 Mc Cotter V. Booker, 8 N. Y., 497. Declarations 
 
 of agent. Followed, Matteson v. N. Y. Cent. 
 
 E.R. Co.,- 62 Barb;, 364. 
 McConn y. N. Y. Cent, and Hud. R. R. Co., 7 
 
 Lans, 75. Reversed in part, 50 N. Y., 176. 
 McCready v. Thorn, 49 Barb., 438. Affirmed, 51 
 
 N. Y., 454. 
 McCulloch y. Colby, 5 Bosw., 477. Action to 
 
 avoid fraudulent conveyance. Approved, 
 
 Payne v. Sheldon, 43 How., 1. 
 , V. Norwood, 36 N. Y. Supr., 180. Reversed, 
 
 58 N. Y., 562. 
 McCullough's Lead Co. v. Strong, 35 N. Y. Supr., 
 
 21. Affirmed, 36 id., 571 ; and again, 56 N. Y., 
 
 660. 
 McDonald v. North, 47 Barb., 530. Damages. 
 
 Approved, Clinton v. Townsend, 46 How., 42. 
 V. Walter, 40 N. Y., 551. Inadequate dam- 
 ages, remedy for. Followed, Carpenter y. 
 
 Beare, 4 Hun, 509. 
 
 - V. Western R. R. Corporation, 34 N. Y. 
 
 497. Liability of -carrier. Distinguished, Fen- 
 
 ner y. Buffalo and St. L. R. R. Co., 44 N. Y., 
 . 505. 
 McDonnell v. Buffum, 31 How., 154. Pleading. 
 
 Approved, Haskell v. Village of Penn Yan, 5 
 
 Lans., 43. 
 McDougall y. Walling, 48 Barb., 364. Affirmed, 
 
 51 ]Sr Y., 666. 
 McDowell y. Second Ave. R. R. Co., 4 Bosw., 670. 
 
 Attorney's lien. Dtstinguished, Pulver v. 
 
 Harris, 62 Barb., 500. 
 McDowle, In re, 8 Johns., 328. Apprentice. Fol- 
 lowed, People ex rel. Wehle v. Weissenback, 60 
 
 N. Y., 385. 
 McFarland v. Wheeler, 26 Wend., 467. Lien, dis- 
 charge of. Approved, Western Trans. Co. y. 
 
 Barber, 56 N. Y., 544. 
 McGary v. People, 2 Lans., 227. Reversed, 45 
 
 N. Y., 153. 
 McGarryy. Board of Supervisors, 1 Sweeny, 217. 
 
 Re-argument. Followed, Pendleton v. Lord, 
 
 34 N. Y. Supr., 301. 
 McGrath v. N. Y. Cent, and Hud. Riv. R. R. 
 
 Co., 1 Hun, 437. Reversed, 59 N. Y., 468. 
 McOraiv V. Godfrey, 14 Abb. N. S., 397. 
 
 Affirmed, 56 N. Y., 610. 
 c 
 
 McGuire v. Kerr, 2 Bradf., 244. Will, signature 
 to. Approved, Heady's will, 15 Abb. N. S., 
 211. 
 
 McHenry v. Hazzard, 45 N. Y., 580. Equity 
 jurisdiction. Followed, Hoffman v. Treadwell, 
 89 N. Y. Supr., 183. 
 
 Mclnroy y. Benedict, 11 Johns., 402. Reference. 
 Approved, Townsend v. Glens Falls Ins. Co., 
 10 Abb. N. S., 277 ; 83 N. Y. Supr., 130. 
 
 Mcintosh V. Lown, 49 Barb., 550. Former adju- 
 dication. Disapproved, Moody y. Leverich, 14 
 Abb. N. S., 145 ; 4 Daly, 401. 
 
 Mclnlyre v. N. Y. Cent. R. R. Co., 37 N. Y., 287 
 Damages for causing death. Followed, Mitchell 
 V. N. Y. Cent, and Hud. Riv. R. R. Co., 2 Hun, 
 535. Negligence. Approved, Filer y. N. Y. 
 Cent. R. R. Co., 49 N. Y., 47. 
 
 McKensie v. Fatrell, 4 Bosw., 204. Surety's liar 
 bility. Followed, Turnure v. Hohenthal, 86 N. 
 Y. Supr., 79. 
 
 McKenzie v. Smith, 27 How., 20. Affirmed, 48 
 N. Y., 143. 
 
 McKeon v. Lee, 4 Rob., 449. Affirmed, 51 N. Y., 
 300. Action. Distinguished, Losee y. Bu- 
 chanan, 51 N. Y., 476. 
 
 McKiUip V. McKiUip, 8 Bosw., 552. Action by 
 lunatic. Distinguished, Fields \. Fowler, 2 
 Hun, 400. 
 
 McKinley v. Tucker, 59 Barb., 93. Overruled, 
 6 Lans., 214. 
 
 McKyring v. Bull, 16 N. Y., 308. Mitigation of 
 damages. Distinguished, Wehle v. Haviland, 
 42 How., 399; 4 Daly, 550. 
 
 McLaren v. Martin, 36 N. Y., 88. Limitation of 
 actions. Followed, Heath v. Grenell, 61 Barb., 
 190. 
 
 McLaughlin y. Waite, 5 Wend., 405. Lost goods. 
 Followed, N. Y. and Harlem R. R. Co. v. Haws, 
 35 N. Y. Supr., 372 ; McLe.on v. Swanston, 13 
 N. Y., 535. Descent. Distinguished, Smith 
 y. Mulligan, 11 Abb..N. S., 438. 
 
 McMahon v. Allen, 14 Abb., 220. Injunction. 
 Distinguished. Fellows v. Heermans, 13 Abb. 
 N. S., 1. 
 
 v. New York and Erie R. R. Co., 20 N. Y., 
 
 463. Interest. Explained, Smith v. Velie, 60 
 
 N. Y., 106. 
 McManus V. Butler, 49 Barb., 179. Highway. 
 
 Distinguished, Regua v. City of Rochester, 45 
 
 N. Y., 129. 
 McMaster v. Prest. etc. Ins. Co. of N. America, 
 
 64 Barb., 536. Affirmed, 55 N. Y., 222. 
 McMenmny v. Ferrers, 8 Johns., 71. Jurisdiction 
 
 Distinguished, Gilbert v. Priest, 14 Abb. N. S., 
 
 165 ; 65 Barb., 444. 
 McNeil V. Tenth National Bank of New York, 55 
 
 Barb., 59. Reversed, 46 N. Y., 325. 
 
 46 N. Y., 325. Estoppel. Bel- 
 
 lowed Moore V. Miller, 6 Lans., 396. Transfer 
 of stock certificates by delivery. Followed, 
 Smith V. American Coal Co., 7 Lans., 317. 
 
 McPadden v. New York Central R. R. Co., 47 
 Barb., 247. Reversed, 44 N. Y., 478. 
 
 McQueen v. Babcock, 3 Keyes, 428. Statutory 
 defenses not to be discriminated against. 
 Approved, Gilchrist v. Gilchrist's Executors, 44 
 How., 817. 
 
 McStea v. Matthews, 8 Daly, 349. Affirmed, 50 
 N. Y., 166. Partnership. Approved, Hub- 
 bard V. Matthews, 54 N. Y., 43. 
 
 McVeanv Scoif, . 46 Barb., 379. Alteration of 
 note. Overruled, Card v. Miller, 1 Hun, 504. 
 
XXXIV 
 
 CASES CRITICISED. 
 
 McVicIcer v. Greenleqf, 1 Abb., N. S., 452; 4 
 Rob., 657. Examination of party. Approved, 
 Hadley v. Fowler, 12 Abb. N. S., 244. 
 
 Mead V. Case, 38 Barb., 202. Contract. Criti- 
 cised, Bates V. Coster, 1 Hun, 400. Statute of 
 frauds. Approved, Passaic Mannf. Co. v. 
 Hoffman, 3 Daly, 495. 
 
 Mechanics and Traders Bank v. Dahin, 50 Barb., 
 588. Action on attaclied securities. Ap- 
 proved, Van Volkenburgh v. Bates, 14 Abb. N. 
 S., 314, ,.. 
 
 Medbury v. Swan, 46 N. Y., 200. Supplemental 
 pleading. Followed, Barstow v. Hansen, 2 
 Hun, 333 ; Beach v. Reynolds, 64 Barb., 506. 
 Explained, Holyoke v. Adams, 59 N. Y., 233. 
 
 Meech V. Smith, 7 Wend., 315 ; Liability of as- 
 sumed agent. Distinguished, Dung v. Parker, 
 52 N. Y., 494. 
 
 V. Stoner, 19 N. Y., 26. Assignability of 
 
 tiling in action. Approved, Wheelock y. Lee, 
 15 Abb. N. S., 24. 
 
 Meehan v. Williams, 2 Daly, 367. Lien. Dis- 
 tinguished, Schneider v. Hobein, 41 How., 232. 
 
 Mendenhall v. Klinck, 50 Barb., 634. Affirmed, 
 51 N. Y., 246. 
 
 Menges v. City of Albany, 47 How., 244. Affirmed, 
 56 N. Y., 374. 
 
 Mercein v. People, 25 Wend., 64. Former adju- 
 dication. Approved, Thomas, Matter of, 10 
 Abb. N. S., 114. 
 
 Merchants Exchange National Bank v. Commer- 
 cial Warehouse Co., 33 N. Y. Supr., -317. Re- 
 vA-sed, 49 N. Y., 635. 
 
 V. 49 N. Y., 635. Who may im- 
 peach for usury. Followed, Knickerbocker Life 
 Ins. Co. V. mil, 3 Hun, 577 ; Strong v. N. Y. 
 Laundry Manuf. Co., 37 N. Y. Supr., 279. 
 
 Meriden Brittania Co, v. Zingsen, 4 Rob., 312. 
 Affirmed, 48 N. Y., 247. 
 
 Merrick v. Van Santvoord, 34 N. Y., 208, Jurisdic- 
 tion of foreign corporation. Approved, Red- 
 mond V. Enfield Manuf. Co., 13 Abb. N. S., 332. 
 
 Merrill v. Green, 55 N. Y., 270. Defense. Fol- 
 lowed, Hinman v. Brown, 3 Hun, 192. 
 
 V. Ithaca and 0. R. R. Co., 16 Wend., 
 
 586. Evidence, memoranda. Followed, Gould 
 V. Conway, 59 Barb., 355. 
 
 Merritt v. Carpenter, 3 Keyes, 142. Arrest. Fol- 
 lowed, Griswold V. Swett, 49 How., 171. Dis- 
 tinguished, Bruce V. Kelly, 5 Hun., 229. 
 
 V. Earle, 31 Barb., 38. Sunday law. 
 
 Followed, People v. Y. M. Father Matthew 
 Benev. Soc'y, 65 Barb., 357. 
 — : — V. Seaman, 6 N. Y., 168. Pleading. Fol- 
 lowed, Murray v. Church, 1 Hun, 49. Set-off. 
 Followed, Patterson v. Patterson, 47 How., 242. 
 V. Todd, 23 N. Y., 28. Indorser's lia- 
 bility. Followed, Pardee v. Fish, 60 N. Y., 
 265. Limitation of actions. Distinguished, 
 Wheeler v. Warner, 47 N. Y., 519. 
 
 Mesereau v. Pearsall, 19 N. Y., 108. Estoppel. 
 Distinguished, Bush v. Knox, 2 Hun, 676. 
 
 Messmore v. N. Y. Shot and Lead Co., 40 N. Y., 
 422. Damages. Distinguished, Cassidy v. Le- 
 Fevre, 45 N. Y., 562. 
 
 Messner v. People, 45 N. Y., 1. Writ of error, 
 questions. Followed, Dent v. Peop/e, 46 How., 
 264. 
 
 Methodist Church of New Y'ork v. Barker, 18 N. 
 Y., 463. Damages on injunction. Followed, 
 Leavitt V. Dabney, 2 Sweeny, 613. 
 
 Methodist Epis. Un. Church v. Pickett, 19 N. Y., 
 485. Church corporation. Followed, Van 
 Buren v. Reformed Church of Gansevoort, 62 
 Barb., 495. 
 
 Metropolitan Board of Excise v. Barrie, 34 K Y., 
 657. Revocation of license. Approved, Peo- 
 ple ex rel. Beller v. Wright, 3 Hun, 306. 
 
 Meyer v. Amidon, 45 N. Y., 169. Fraud, what 
 actionable. Followed, Wakeman v. Dalley, 51 
 N. Y., 27. 
 
 V. Clark, 2 Daly, 497. Reversed, on 
 
 question of credibility of witness, 45 N. Y., 285. 
 • V. Huncke, 65 Barb., 304. Reversed, 55 
 
 N. Y., 412. 
 
 v. Mohr, 1 Rob., 333 ; 19 Abb., 299. 
 
 Dower, how barred. Approved, Elmendorf v. 
 Lockwood, 4 Lans., 393. Overruled, Matoniy 
 V. Horan, 12 Abb. N. S., 289. 
 
 Mierson v. Hope, 2 Sweeny, 561. Carrier, obli- 
 gation as to delivery. Distinguished, McAn- 
 drew V. Whitlock, 2 Sweeny, 623. 
 
 Michaels v. New York Cent. R. R. Co., 30 N. Y., 
 564. Carriers' liability. Followed, Condict 
 V. Grand Trunk Railway Co., 54 N. Y., 500. 
 
 Middlebrook v. Broadcut, 47 N. Y., 448. Juris- 
 diction of State courts. Approved, Gilbert v. 
 Crawford, 46 How., 222. 
 
 Middletown, Town of, v. Rondout and Oswego R. 
 R. Co., 43 How., 144; 12 Abb. N. S., 276. 
 Affirmed, 43 How., 481. Continuing injunc- 
 tion. Approved, Hathaway v. Warren, 44 
 How., 161. 
 
 Milhau T. Sharp, 27 N. Y., 611, Highways. 
 Distinguished, Clarke v. Blackmar, 47 N. Y., 
 151. 
 
 Millard v. Van Ranst, 17 Abb., 319. Appealable 
 order. Approved, Ramsey v. Gould, 4 Lans., 
 476. 
 
 Millbank v. Crane, 25 How., 193. Appointment 
 of trustee. Followed, Branson v. Branson, 48 
 How., 481. 
 
 Miller V. Adams, 7 Lans., 131. Affirmed, 52 N. 
 Y., 409. 
 
 V. Larmon, 38 How., 417. Appearance 
 
 in justice's court. Overruled, Speiry v. Rey- 
 nolds, 5 Lans., 407. 
 
 ■ V. White, 10 Abb. N. S., 385 ; 59 Barb., 
 
 434. Reversed, 13 Abb. N. S., 185, note ; 50 
 N. Y., 137. Judgment against corporations 
 conclusive in action against stockholders. 
 FoUowed, Hall v. Sigel, 13 Abb. N. S., 178 ; 7 
 Lans., 206. 
 
 -, 50 N. Y., 187. Judgment as 
 
 eVidence. Followed, Reed v. Keese, 37 N. Y. 
 
 Supr., 269. 
 Millerd v. Thorn, 15 Abb. N. S., 371. Affirmed, 
 
 56 N. Y., 402. 
 Mills V. City of Brooklyn, 32 N. Y.,489. LiabiUty 
 
 for damages from sewer. Distinguished, Lew- 
 
 enthal v. Mayor, etc. of Neiv York, 5 Lans., 
 
 532 ; 61 Barb., 511. 
 
 V. Davis, 35 N. Y. Supr,, 855. Affirmed, 
 
 53N.Y., 349. 
 
 V. Hunt, 20 Wend., 431. Sale, validity 
 
 of. Approved, Brown v. Hall, 5 Lans., 177 ; 
 20 Wend., 484. Statute of frauds. Distin- 
 guished, Aldrich v. Pyatt, 64 Barb., 391. 
 
 v. Lewis, 55 Barb., 179. Reforming con- 
 tract. Distinguished, O'Donnell v. Harmon, 3 
 Daly, 424. 
 
 V. Pearson, 2 Hill, 16. Party in interest 
 
OASES CRITICISED. 
 
 XXXV 
 
 Approved, Hackett v. Belden, 10 Abb. N.. S., 
 123. 
 
 Milnor v. New York and N. H. R. R. Co., 4 
 Daly, 355. Affirmed, 58 N. Y., 363. 
 
 Milton V. Hudson Riv. Steamboat Co., 4 Trans. 
 App., 252. Contributory negligence. Distin- 
 guished, Arctic Fire Ins. Co. v. Attstin, 3 Hun, 
 195. 
 
 Miner v. Beekman, 42 How., 33 ; 11 Abb. N. S., 
 147; 33 N. Y. Supr., 67. Eeversed, 14 Abb. 
 N. S., 1; 50 N. T., 337. Action to redeem. 
 Followed, McKee v. Murphy, 84 N. Y. Supr., 
 261. Limitation of actions. Followed, Hub- 
 bell V. Sibley, 50 N. Y., 468. 
 
 Minier v. Minier, 4 Lans., 421. Eights of mar- 
 ried women. Criticised, Perkins v. Perkins, 7 
 Lans., 19 ; 62 Barb., 531. 
 
 Mitchell V. Bartlett, 52 Barb., 319. Affirmed, 51 
 N. Y., 447. 
 
 V. Blain, 5 Paige, 588. Post testament- 
 ary child. Distinguished, Sanford v. Sanford, 
 4 Hun, 753. 
 
 V. Hawley, 4 Den., 414. Accord and sat- 
 isfaction. Approved, Williams v. Irving, 47 
 How., 440. 
 
 V. Read, 61 Barb., 310. Partnership 
 
 dealings. Approved, Weston v. Ketchum, 39 
 N. Y. Supr., 54 
 
 Mittnacht v. Kelly, 3 Keyes, 407. Chattel mortgage. 
 Distinguislied, Yates v. Olmstead, 65 Barb., 48. 
 
 Mohawk and Hudson R. R. Co. v. Clute, 4 Paige, 
 384. Interpleader. Approved, Dorn v. Fox, 6 
 Lans., 162. 
 
 Moir V. Brown, 14 Barb., 39. Assignment for 
 benefit of creditors. Followed, Kerscheis v. 
 Schloss, 49 How., 284. 
 
 Moncrie/v. Ross, 50 N. Y., 436. Equitable con- 
 version. Followed, Ross v. Roberts, 2 Hun, 90. 
 
 Monell V. Lawrence, 12 Johns., 534. Notice. Over- 
 ruled, Hotbrook V. N. J. Zinc Co., 57 N. Y., 
 616. 
 
 ■ V. Wright, 1 "Wend., .360. Error of fact. 
 
 what is. Approved, Barker v. Clark, 12 Abb. 
 N. S., 106. 
 
 Monroe v. Upton, 6 Lans., 255. Affirmed, 50 N. 
 Y., 693. 
 
 Moody V. Osgood, 60 Barb., 644. Affirmed, 64 
 If. 'Y., 488. 
 
 Moore V. Cross, 19 N. Y., 227. Pleading. Fol- 
 lowed, Woodruff V. Leonard, 1 Hun, 632. In- 
 dorsement of note before delivery. Followed, 
 Coulter V. Richmond, 59 N. Y., 478. 
 
 V. Hamilton, 48 Barb., 120. Affirmed, 44 
 
 N. Y., 666. 
 
 - V. Hudson Riv. R. R. Co., 12 Barb., 156. 
 
 Damages, contract payable in stocks. Dis- 
 tinguished, Pusey V. N. J. West Line R.R. Co., 
 14 Abb. N. S., 434. 
 
 V. Littell, 41 N. Y., 66. Vested remain- 
 
 der. Followed, Chism v. Keith, 1 Hun, 589; 
 Jackson v. Sheridan, 50 N. Y., 660. Distin- 
 guished, itumjrsfon v. Green, 6 Lans., 50 ; 52 N. 
 Y., 118, 
 v. Lyons, 25 Wend., 119. Vested re- 
 mainder. Followed, Weed v. Aldrich, 2 Hun, 
 531. 
 
 V. Mausert, 6 Lans., 173. Affirmed, 49 
 
 N. Y., 332. 
 
 ■ V. Moore, 4 Sandf . Ch., 87. Admissions 
 
 of infant. Approved, Matter of Greeley's Will, 
 16 Abb. N. S., ■' 
 
 Moore v. 
 
 , 5 N. Y., 256. Trustee. Fol- 
 
 lowed, Terwilliger v. Brown, 59 Barb., 9 ; 44 
 N. Y., 237. 
 
 V. Willett, 35 Barb., 608. Bankruptcy, 
 
 effect of assignment. Distinguished, Kelly v. 
 Crapo, 45 N. Y., 86. 
 
 ■ V. Wood, 19 How., 405. Inadequate dam- 
 
 ages, remedy for. Overruled, Carpenter v. 
 
 Beare, 4 Hun, 509. 
 Moores v. Lunt, 12 Abb. N. S., 166. Eeversed, 1 
 
 Hun, 650. 
 Moors V. Smedley, 6 Johns. Ch., 28. Injunction. 
 
 Approved, Kilbume v. St. John, 59 N. Y., 21. 
 Moran v. Darrin, 1 Hun, 490. Affirmed, 60 N. 
 
 Y., 637. 
 
 V. Manissey, 18 Abb., 131. Pleading. 
 
 Distinguished, Roediger v. Simmons, 14 Abb. 
 N. S., 256. 
 
 Morange v. Morris, 3 Keyes, 48. Vendor and 
 purchaser. Approved, Hartley v. James, 60 
 N. Y., 38. Followed, Wood v. Squires, 1 Hun, 
 481. 
 
 More V. Bennett, 48 Barb., 229 ; 33 How., 177. 
 Eeversed, 48 N. Y., 472. 
 
 Morehouse v. Crilley, 8 How,, 431. Complaint 
 for penalty. Approved, Abbott v. N. Y. Cent, 
 etc. R. R. Co., 12 Abb. N. S., 465. 
 
 Morey v. Farmers Loan and Trust Co., 14 N. Y., 
 302. Statute of limitations. Approved, John- 
 son V. Albany and Susquehanna R. R. Co., 5 
 Lans., 222. 
 
 V. Webb, 65 Barb., 22. Affirmed, 68 N. 
 
 Y., 350. 
 
 Morgan v. House, 36 How., 826. Short summons. 
 Distinguished, Clark v. Huntington, 5 Hun, 
 638. 
 
 V. King, 85 N. Y., 454. Eacket Eiver. 
 
 Followed, Town of Pierrepont v. Lovelass, 4 
 Hun, 696. 
 
 V. Morgan, 39 Barb., 20. Eeversed sub 
 
 nom Morgan v. Hannas, 13 Abb. N. S., 361. 
 
 V. Skidmore, 55 Barb;, 268. Fraud of 
 
 partner. Followed, Goldberg v. Dougherty, 39 
 N. Y. Supr., 189. 
 Moms V. Mowatt, 2 Paige, 583. Eefunding to 
 purchaser on foreclosure. Approved, Raynor 
 V. Selmes, 7 Lans., 440. Explained, S. C'., 52 
 N. Y., 579. 
 
 V. Patchin, 24 N. Y., 395. Authentica- 
 
 tion of foreign record. Approved, Sheriff v. 
 Smith, 47 How., 470. 
 Morris v. Slite, 1 Den., 59. Condition precedent. 
 Approved, Meriden Brittania Co. v. Zingsen, 
 48 N. Y., 247. 
 
 V. Whitcher, 20 N. Y., 41. Merger. Dis- 
 
 tinguished, Davis V. Lottich, 46 N. Y., 393. 
 
 Mount V. Mitchell, 32 N. Y., 702. Eeargument. 
 Followed, Marine National Bank v. National 
 City Bank, 69 N. Y., 67. 
 
 Muldoon V. Pitt, 4 Daly, 105. Affirmed, 54 N. 
 Y., 269. 
 
 Muller V. Eno, 14 N. Y., 597. Damages. Fol- 
 lowed, Parks V. Morris Ax and Tool Co., 54 N. 
 Y., 586 ; Wells v. Selwood, 61 Barb., 238. 
 
 V. Pondir, 6 Lans., 472. Affirmed, 55 N. 
 
 Y., 325. 
 Mumfard v. McKay, 8 Wend., 442. Dissolution 
 
 of partnership. Followed, Sistare v. Cushing, 
 
 4 Hun, 503. 
 Munro V. Allaire, 2 Caines, 320. Covenant. Fol- , 
 
 lowed, Holmes'y. Hubbard, 60 N. Y., 183. 
 
XXXVl 
 
 CASES CRITICISED. 
 
 Munsell V. Lewis, i Hill, 641. What assignable. 
 Approved, Decker v. Saltzman, 1 Hun, 421. 
 
 Murphy V. Boker, 3 Rob., 4. Setting aside ver- 
 dict. Approved, Morsa v. Sherrill, 63 Barb., 
 21. 
 
 V. Commissioners of Emigration, 28 N. Y., 
 
 134. Negligence, liability of public oflScers. 
 Approved, Klein v. Hamburg and Am. Packet 
 Co., 3 Daly, 390. 
 
 V. Spaulding, 46 N. Y., 556. Appeal. 
 
 Distinguished, Genet v. Davenport, 60 N. Y., 
 194 
 
 Murray v. Blatchford, 2 Wend., 221. Jurisdiction 
 of Court of Appeals after remittitur. Ap- 
 proved, Cushman v. Hadfield, 15 Abb. N. S., 
 109 ; 52 N. Y., 653. 
 
 V. Lytburn, 2 Johns. Ch., 441. Notice. 
 
 Explained, Holbrook v. N. J. Zinc Co., 57 N. 
 Y.. 616. 
 
 • v. Smith, 1 Duer, 412. New trial. Fol- 
 
 lowed, Color. Printing Attachment Co. v. Brown, 
 37 N. Y. Supr., 433. 
 
 Mut. Life Ins. Co. y. Wager, 27 Barb., 365. Life 
 insurance, misrepresentation. Approved, Foot 
 V. ^tna Life Ins. Co., 4 Daly, 285. 
 
 Myers v. Beach, 39 N. Y., 269. Damages, neglect 
 to repair. Distinguished, Flynn v. Hatton, 43 
 How., 333 ; 4 Daly, 552. 
 
 V. Burns, 33 Barb., 401 : 35 N. Y., 269. 
 
 Counterclaim. Followed, Cook v. Soule, 45 
 How., 340. Covenant for quiet enjoyment. 
 Followed, Johnson v. Oppenheim, 43 How., 433 ; 
 12 Abb. N. S., 449; 33 N. Y. Supr., 416. Dam- 
 ages. Followed, Hexter v. Knox, 39 N. Y. 
 Supr., 109 ; Cook v. Soule, 56 N. Y., 420. 
 
 ■ v.DeMier, 4 Daly, 843. Affirmed, 52 
 
 N. Y., 647, 
 
 Mygatt v. Washburn, 15 N. Y., 316. Assessment. 
 Followed, Dorwin v. Strickland, 57 N. Y., 492. 
 Assessor's personal liability. Followed, Wade 
 V. Matheson, 4 Lans., 158 ; Palmer v. Lawrence, 
 6 Lans., 282. 
 
 V. Willcox, 4 Lans., 55. Affirmed, 45 N. 
 
 Y., 306. 
 
 Nathan v. Whitlock, 9 Paige, 152. Stockholder's 
 liability. Followed, Graham v. Hoy, 38 N. Y. 
 Supr., 506. 
 
 National Bank of Chemung v. Citi/ of Elmira, 6 
 Lans., 116. Reversed, 53 N. Y., 49. 
 
 V. 63 N. Y., 49. Dlegal tax. Fol- 
 lowed, Dewey v. Supervisors of Niagara Co., 2 
 Hun, 893. 
 
 National Bank of Commerce v. National Me- 
 chanics Banking Association, 46 How., 374 ; 35 
 N. Y. Supr., 283. Affirmed, 55 N. Y., 211. 
 Certified check. Approved, Marine National 
 Bank V. National City Bank, 36 N. Y. Supr., 
 470. 
 
 National Bank of Whitehall v. Lamb, 50 N. Y., 
 95. National banks. Followed, Hintermister v. 
 First National Bank of Chittenango, S^wa, 345. 
 
 National Fire Insurance Co. v. McKay, 5 Abb. 
 N. S., 446. Action to redeem. Approved and 
 explained, Miner v. Beekman, 11 Abb. N. S., 
 147 : 42 How., 33 : 33 Tf. Y. Supr., 67. 
 
 National Life Ins. Co. v. Minch, 6 Lans., 100. 
 Reversed, 63 N. Y., 144. 
 
 National Park Bank v. Ninth National Bank, 55 
 Barb., 87 : 7 Abb. N. S., 120. Reversed, 46 
 N. Y., 77. 
 
 Nelson v. Hudson Riv.R. R. Co., 48 N. Y., 498. 
 Contract by agent. Followed, Shelton v. Mer- 
 
 chants Despatch Trans. Co., 48 How., 257 : 59 
 
 N. Y., 258. Limitation of carrier's liability. 
 
 Approved, Lamb v. Camden and Amboy R. R. 
 
 andT. Co., 4 Daly, 483. 
 Nesmith v. Atlantic Ins. Co., 8 Abb., 423. Special 
 
 jury. Approved, People v. McOmre, 43 How., 
 
 67. 
 Nevins V. Dunlap, 33 N. Y., 680. Reforming 
 
 written instrument. Distinguished, O'Donnell 
 
 f. Harmon, 3 Daly, 424. 
 Newark India Rubber Manuf. Co. v. Bishop, 3 
 
 E. D. Smith, 48. Demand of payment of note. 
 
 Approved, Saltsprings National Bank v. Bur- 
 ton, 68 N. Y., 431. 
 Newberry v. Furnival, 46 How., 139. Affirmed, 
 
 eeKX, 638. - 
 Newcomb v. Griswold, 24 N. Y., 298. Impeaching 
 
 evidence. Followed, People v. Satterlee, 6 
 
 Hun, 167. Distinguished, Romertz v. East 
 
 Riv. National Bank, 49 N. Y., 577. Followed, 
 
 S. C, 2 Sweeny, 82. 
 Newell V. Gregg, 51 Barb., 263. Action for relief 
 
 against judgment. Approved, Coleman v. 
 
 Lansing, 4 Lans., 70. 
 
 V. Salmons, 22 Barb., 647. Counterclaim. 
 
 Distinguished, Perry v. Chester, 12 Abb. N. S., 
 181. 
 
 ■ V. Warren, 44 Barb., 258. Reversed, 44 
 
 N. Y., 244. 
 
 • 44 N. Y., 244. Chattel mort- 
 
 gage. Followed, Wisser v. O'Brien, 44 How., 
 209 : 35 N. Y. Supr., 149. 
 Newman v. Alvord, 49 Barb., 588. Affirmed, 51 
 N. Y., 189. Trademark. Approved, Congress 
 and Empire Spring Co. v. High Rock Congress 
 Spring Co., 10 Abb. N. S., 348 ; 45 N. Y. Supr,, 
 291 ; Lea v. Wolf, 46 How., 157. 
 
 V. Board of Supervisors of Livingston Co., 
 
 1 Lans., 476. Reversed in part, 45 N. Y., 676. 
 45 N. Y., 676. Elegal tax. Fol- 
 
 lowed, Dewey v. Supervisors of Niagara Co., 2 
 Hun, 893. 
 
 ■ V. Otto, 4 Sandf., 669. Pleading in libel. 
 
 Followed, Fink v. Justh, 14 Abb. N. S., 107. 
 Newton V. Bronson, 13 N. Y., 687. Equity juris- 
 diction. Followed, Myres v. DeMier, 4 Daly, 
 343. 
 
 New York, Corporation of, v. Dover Street, 18 
 Johns. 505. Eminent domain. Approved, In 
 re Commissioners of Washington Park, 56 N. 
 Y., 144. 
 
 New York Cent. Ins. Co. v. National Prot. Ins. 
 Co., 14 N. Y., 86. Waiver. Distinguished, Wil- 
 liams V. Mechanics and Traders F. Ins. Co., 
 54 N. Y., 677. 
 
 New York Central R. R. Co. v. Marvin, 11 N. Y., 
 276. Appeal. Distinguished, Albany and Sus- 
 quehanna R. R. Co. V. Dayton, 10 Abb. N. S., 
 482. Costs. Followed, Matter of Syracuse, etc, 
 R. R Co., 4 Hun, 311. 
 
 New York Floating Dry Dock Co, v. Seaman. Ta- 
 junction continued until trial, 1 Hun, 122. 
 
 New York Guaranty and Indemnity Co. v. Flynn, 
 65 Barb., 866. Affirmed, 55 N. Y., 663. 
 
 New York and Harlem R. R. Co., v. Haws, 35 N. 
 
 Y. Supr., 372. Reversed, 56 N. Y., 175. 
 V. Kip, 46 N. Y., 546. Acquiring lands 
 
 for railroad. Followed, New York and Canada 
 
 R. R. Co. V. Gunnison, 1 Hun, 496 ; N. Y. 
 
 Central and H. R. R. R. Co. v. Metropolitan 
 
 Gas Light Co., 5 Hun, 201. 
 
GASES CRITICISED. 
 
 XXXVll 
 
 New York Ice Co. v. North Western Ins. Co., 23 
 N. Y., 357. Appealable order. Followed, 
 Schuyler v. Mayor, etc. of New York, 39 N. Y. 
 Supr., 277. 
 
 New York Life Ins. and Trust Co. v. Vanderbilt, 
 12 Abb., 458. Costs on reference as to sur- 
 plus. Followed, Elwell v. Robbins, 43 How., 
 108. 
 
 New York and N. H. R. R. Co. v. Ketchum, 3 
 Keyes, 24. Contempt, when order appealable. 
 Approved, Brinkley v. Brinkley, 47 N. Y., 40. 
 
 V. Schuyler, 34 N. Y., SO. Agent certi- 
 fying in his own favor. Distinguished, Titus 
 V. Prest., etc. Great Western Turnpike Co., 5 
 Lans.^ 250. Joinder of defendants. Followed, 
 Toiun of Venice v. Breed, 65 Barb., 597. 
 
 Niagara F. and E. 0. R. R. Co. v. Hotchkiss, 16 
 Barb., 270. Overruled, Armstrong v. New York 
 Central and Hud. Riv. R R. Co., 2 Hun, 482, 
 
 Nichols V. Chapman, 9 Wend., 455. Judgment, 
 entry of. Distinguished, Livingston v. Randall, 
 59 Barb., 493. 
 
 Nicholson v. Erie Railway Co., 41 N. Y., 525. 
 Negligence. Distinguished, Conklin v. Phoe- 
 nix Mills, 62 Barb., 299 ; Sutton v. New York 
 Cent, and H. R. R. R. Co., 4 Hun, 760. 
 
 Nickelson v. Wilson, 1 Hun, 615. Reversed, 60 
 N. Y., 362. 
 
 Nicoll V. Nicoll, 16 Wend., 446. Set-ofE of judg- 
 ments. Followed, Firmenich v. Bovee, 1 Hun^ 
 532 ; Hovey v. Rubber Tip Pencil Co., 14 Abb. 
 N. S., 66 : Perry v. Chester, 36 N. Y. Supr., 
 228. 
 Nodine v. Dougherty, 46 Barb., 59. Violation of 
 Sunday law. When no defense. Approved, 
 Landers v. Staten Island R. R. Co., 13 Abb. 
 N. S., 338. 
 Norris v. Beyea, 13 N. Y., 273. Limitation over. 
 
 Followed, Bell v. Warn, 4 Hun, 426. 
 V. Kohler, 41 N. Y., 42. Master and ser- 
 vant. Followed, Svenson v. Atlantic Mail 
 Steamship Co., 33 N. Y. Supr., 277 ; 57 N. Y., 
 108. 
 North V. North, 1 Barb. Ch., 241. Temporary 
 alimony. Approved, Ford v. Ford, 41 How., 
 169 : 10 Abb. N. S., 74. 
 North American Coal Co. v. Dyett, 7 Paige, 9. 
 Married woman. Followed, Quassaic National 
 Bank ofNewburg v. WaddeU,\ Hun, 125. 
 North American Ins. Co. v. Graham, 5 Sandf., 
 197. Action to avoid fraudulent conveyance. 
 Approved, Payne v. Sheldon, 43 How., 1. 
 North River Bank v. Aymar, 3 Hill, 262. Prin- 
 cipal's liability. Followed, Marsh v. Gilbert, 
 2 Hun, 58. 
 Northrop v. Hill, 61 Barb., 136. Affirmed, 67 
 N. Y., 351. 
 
 V. Syracuse, Bing. and N. Y. R. R. Co., 2 
 
 Trans. AJp^., 183. Liability of carrier. Ap- 
 proved, Fenner v. Buff, and St. Line R. R. Co., 
 44 N. Y., 505. 
 Northrup v. Railway Passenger's Ass. Co., 2 Lans., 
 
 166. Reversed, 43 N. Y., 516. 
 Norton v. Woodruff, 2 N. Y., 153. Excuse for 
 non-delivery. Approved, Kein v. Tupper, 42 
 How., 437 : 33 N. Y. Supr., 465. 
 Noyes V. Blakeman, 5 N. Y., 567. Trusts. Fol- 
 lowed, Randall v. Dusenbury, 39 N. Y. Supr., 
 174. 
 
 v. Clark, 7 Paige, 179. Foreclosure, 
 
 staying proceedings. Distinguished, Bennett 
 V. Stevenson, 63 N. Y., 608. . 
 
 Cakes y. Howell, 27 How., 145. Statute of lim- 
 itations. Approved, Miner v. Beekman, 11 
 Abb. N. S., 147 ; 42 How., 33 ; 33 N. Y. Supr., 
 67. 
 
 Oakley v. Aspinwall, 3 N. Y., 647. Disqualifica- 
 tion of judge. Approved, Rivenburgh v. Hen- 
 ness, 4 Lans., 208. 
 
 Oberlander v. Spies, 45 N. Y., 177. False repre- 
 sentations. Criticised, Livingston v. Keech, 34 
 N. Y. Supr., 547. 
 
 O'Brien v. Mechanics and Trad. F. Ins. Co., 45 
 How., 463; 14 Abb. N. S.,314 ; 36 N. Y. Supr., 
 110. Reversed, 46 How., 429 ; 15 Abb. N. S., 
 222 ; 56 N. Y., 52. 
 
 Ocean National Bank v. Olcott, 46 N. Y., 15. 
 Evidence, discharge in bankruptcy. Approv- 
 ed, Dusenbury v. Hoyt, 45 How., 147. 
 
 O'Gara v. Eisenlohr, 88 N. Y., 296. Evidence of 
 marriage. Approved, Wright y. Wright, 48 
 How., 1. 
 
 Ogden v. General Mut. Ins. Co., 2 Duer, 204.- Ma- 
 rine insurance. Distinguished, Robertson v. 
 Atlantic Mut. Ins. Co., 37 N. Y. Supr., 442. 
 
 v. Jackson, 1 Johns., 370. Jurisdiction- 
 
 Distinguished, Gilbert v. Priest, 14 Abb. N. S., 
 165 ; 65 Barb., 444. 
 
 V. Jones, 2 Bosw., 685. Party wall. Fol- 
 
 lowed, iVusA V. ^«m;)j49 How., 622. 
 
 Olcott V. Robinson, 21 N. Y., 150. Publication of 
 notice. Approved, Wood y. Terry, 4 Lans., 80. 
 
 O'Leary v. Walter, 10 Abb. N. S.,439. Affirmed, 
 50 N. Y., 683. 
 
 O'Mara v. Hudson Riv. R. R. Co., 38 N. Y., 445. 
 Negligence?. Followed, Costello y. Syracuse, 
 Bing., and N. Y. R. R Co., 65 Barb., 92 ; Pen- 
 dril V. Second Ave. R. R. Co., 43 How., 399 ; 34 
 N. Y. Supr., 481. Distinguished, Culhare y. 
 New York Cent, and Hud. Riv. R. R. Co., 60 
 N. Y., 133. 
 
 Ombony v. Jones, 19 N. Y., 232. Mechanic's lien. 
 Followed, Stuyvesant v. Browning, 33 N. Y 
 Supr., 203. 
 
 Onderdonk v. Ranlett, 3 Hill, 329. Contempt. Ap- 
 proved, Brown y. Hunter, 45 How., 193. 
 
 Oneida Bank v. Ontario Bank, 21 N. Y., 490. 
 Usury. Followed, Gerwig v. Sitterly, 56 N. Y., 
 214. 
 
 Oneida CoMmon Pleas v. People, 18 Wend., 79. 
 Mandamus. Approved, People ex rel. Grace v. 
 Police Commissioners of Troy, 12 Abb. N. S., 
 181. 
 
 O'Neill V. James, 43 N. Y., 85. Exception. Dis- 
 tinguished, Stone V. Flower, 47 N. Y., 566. 
 
 O'Reilly v. Guardian Mut. Life Ins. Co., 1 Hun, 
 460. Reversed, 60 N. Y., 169. 
 
 Organ v. Stewart, 1 Hun, 411. Reversed, 60 N. 
 Y., 413. 
 
 Ormsby v. Douglass, 37 N. Y., 477. Privileged 
 communications. Approved, ^e^os v, TheMc- 
 Killop and Sprague Co., 48 How., 122 ; 2 Hun, 
 351. 
 
 V. Vermont Copper Mining Co., 66 Barb., 
 
 360. Reversed, 66 N. Y., 623. 
 Ortley v. Messere, 7 Johns. Ch., 139. Action by 
 
 committee of lunatic. Approved, Fields v. 
 
 Fowler, 2 Hun, 400. 
 Osbrey v. Reimer, 49 Barb., 266. Modified, 51 
 
 N. Y., 680. 
 Osgood T. Strausse, 65 Barb., 383. Affirmed, 66 
 
 N. Y., 672. 
 
XXXVUl 
 
 CASES CRITICISED. 
 
 Osgood V. Toole, 1 Hun, 167. Affirmed, 60 N. Y., 
 475. 
 
 ■ T. Toplilz, 3 Lans., 184. Security notes. 
 
 Distinguished, Osgood v. Toole, 1 Hun, 167. 
 Oswego, City of, v. Oswego Canal Co., 6 N. Y., 257. 
 Street. Followed, in matter of Ingraharg, 4 
 Hun, 495. 
 
 Oswego Starch Factory v. Dolloway, 21 N. Y., 449. 
 Residence of corporation. Distinguished, Peo- 
 ple ex rel. D. Sr F. R. R. Co. v. Cassity, 46 
 N. Y., 46. Explained, People ex rel. Broadway 
 and Seventh Ave. R. R. Co. v. Commissioners of 
 Taxes, 46 How., 227. 
 
 Otis V. Jones, 21 Wend., 394. Mitigation of dam- 
 ages. Disapproved, Wehle v. Butler, 43 How., 
 5 ; 12 Abb. N. S., 139. 
 
 Otter V. Brevoort Petroleum Co., 50 Barb., 255. 
 Forfeiture. Approved, /Cnowlton v. Congress 
 Sf Empire Spring Co., 57 N. Y., 618. 
 
 Owen V. Farmers Joint Stock Ins. Co., 67 Barb., 
 618. Waiver of condition. Approved, Dohn 
 V. Same, 5 Lans., 275. Criticised, Underwood v. 
 Same, 48 How., 367 ; 57 N. Y., 500. 
 
 Pack V. Mayor, etc. of New York, 8 N. Y., 222- 
 Negligence of employe. Followed, McCaf- 
 ferty w. Spuyten Duyvil, etc. R. R. Co., 48 How., 
 44. 
 
 Paine v. Bonney, 4 E. D. Smith, 734. Mechanic's 
 lien. Distinguished, Mattheijos v. Daly, 3 Daly, 
 214, n. 
 
 Palmer v. Baqg, 64 Barb., 641. Affirmed, 66 N. 
 Y., 528. 
 
 v! De Witt, 40 How., 293 ; 2 Sweeny, 530. 
 
 Affirmed, 47 N. Y., 532. 
 ■ V. Foley, 44 How., i 
 
 Warranty. Followed, Brown r. Burhans, 4 
 Hun, 227. 
 
 V. Parks, 9 Paige, 107. Void trusts. 
 
 Followed, Van Schuyver v. Mulford, 59 N. Y., 
 426. 
 
 ■ 19 Abb., 161. Waiver. Over- 
 
 ruled, Wolford V. Oakley, 43 How., 118. 
 Parmenter v. Roth, 9 Abb. N. S., 385. Power of 
 
 county judge. Followed, Town of Rochester v. 
 
 Davis, 12 Abb. N. S., 270. Injunction orders. 
 
 Approved, Middletown, Town of, v. Rondout, etc. 
 
 R. R. Co., 43 How., 144 ; 12 Abb.N. S., 276. 
 Parrott v. Knickerbocker and New York Ice Co., 2 
 
 Sweeny, 93. Reversed, 46 N. Y., 361. 
 Parsons v. Bowdoin, 17 Wend., 14. Poundage. 
 
 FoUowed, Campb^l v. Cothran, 56 N. Y., 279. 
 V. Loucks, 4 Bob., 216. Affirmed, 48 N. 
 
 In part affirmed, 
 36 N. Y. Supr., 14 ; 45 How., 110. 
 
 V. Hicks, 6 Johns., 133. Rights of fishery. 
 
 Followed, Brookhaven, Trustees of, v. Strong, 60 
 N. Y., 56. 
 
 V. Hussey, 65 Barb., 278. Affirmed, 59 
 
 N. Y., 647 
 — : V. The Mayor, etc., 2 Sandf., 318. Extra 
 
 compensation. Followed, Cowan v. Mayor, 
 
 etc. of New York, 3 Hun, 632. 
 V. Wetmore, 2 Sandf., 316. Obstructing 
 
 lights. Followed, Z)oy/cv.£ord, 39 N. Y. Supr., 
 
 421. ^ ' 
 
 Panama R. R. Co. v. Robinson. Order of arrest. 
 Sustained, 2 Hun, 381. 
 
 Parish v. Golden, 35 N. Y., 467. Assessor's affi- 
 davit. Followed, National Bank of Chemung 
 V. City ofElmira, 6 Lans., 116. 
 
 Park Bank v. Watson, 42 N. Y., 490. Bona fide 
 holder. Distinguished, Huff v. Waqner. 63 
 Barb., 215. " 
 
 Parker y.Foote, 19 Wend., 318.' Prescriptive 
 right to ancient lights. Followed, DoiiU v. 
 Lard, 48 How., 142. 
 
 V. Jervis, 3 Keyes, 271. Motion for new 
 
 trial. Disapproved, Price v. Keyes, 1 Hun, 177. 
 -V. Schenck, 28 Barb., 38. Statute of 
 
 frauds. Approved, Passaic Manuf. Co. v 
 Hoffman, 3 Daly, 495. 
 
 Parker Mills v. Commissioners of Taxes, etc., 23 
 N. Y., 245. Taxes. Followed, People ex rel. 
 Bank of Montreal v. Commissioners of Taxes, 
 69 N. Y., 40. ' 
 
 Parkhurst v. Van Cortlandt, 14 Johns., 15. Estop- 
 pel. Approved, Dodge v. Wellman, 43 How., 
 427. 
 
 Parks V. Morris Axe and Tool Co., 54 N. Y., 686. 
 
 Y., 17. Statute of frauds. Approved, Passaic 
 Manuf. Co. v. Hoffman, 3 Daly, 495 ; Deal v. 
 Maxwell, 51 N. Y., 652. 
 
 ■ V. Lyman, 20 N. Y., 114. Foreign admin- 
 
 istrator, power of. Approved, Stone v. Scripture, 
 4 Lans., 186. 
 
 ■ V. Nash, 8 How., 454. Counterclaim. 
 
 Distinguished, Perry v. Chester, 12 Abb. N. S., 
 131. 
 
 Partridge v. Menck, 2 Barb. Ch., 103. Trade- 
 mark. Followed, Godillot v. Hazard, 49 How., 5. 
 
 Patchin v. Astor Mut. Ins. Co., 13 N. Y., 268. 
 Impeaching witness. Followed, Knight v. For- 
 ward, 63 Barb., 311. 
 
 V. Sands, 10 Wend., 570. Special jury. 
 
 Followed, The People v. McGuire, 43 How., 67. 
 Paton V. Weslervelt, 5 How., 399. Perpetuating 
 testimony. Followed, Cheeoer v. Saratoga Co. 
 Bank, 47 How., 376. 
 
 Patrick V. Metcalf, 37 N. Y., 333. Action for 
 money. Followed, Osby v. Conant, 5 Lans., 
 310 ; Rowe v. Bank of Auburn, 51 id., 674. 
 
 Patten v. Stitt, 34 N. Y. Supr., 346. Reversed, 
 50 N. Y., 691. 
 
 Patterson v. Bloomer, 37 How., 450 ; 38 id., 280 ; 
 7 Abb. N. S., 376. Damages on injunction. 
 Disapproved, Leavitt v. Dabney, 2 Sweeny, 613. 
 
 • V. Gillies, 64 Barb., 563. Chattel mort- 
 
 gage. Followed, Stockham v. Allard, 2 Hun, 67. 
 V. Patterson, 47 How., 242. Affirmed, 1 
 
 Hun, 323. Modified, 59 N. Y., 574. 
 V. , 13 Johns., 379. Contract to pay 
 
 by will. Followed. Campbell v. Campbell, 65 
 
 Barb., 639. 
 
 Patttson V. Adams, 7 Hill, 127. Complaint. 
 Approved, Van Der Minden v. Elsas, 36 N. Y. 
 Supr., 66. 
 
 V. Taylor, 8 Barb., 250. Presumption of 
 
 payment. Approved, Fisher v. Mayor, etc. of 
 New York, 3 Hun, 648. 
 
 Pavi V. Munger, 47 N. Y., 469. Appealable 
 order. Followed, People v. Schoonmaker, 50 
 N. Y., 499. 
 
 Paulding v. Hudson Manuf. Co., 2 E. D. Smith, 
 38. Jurisdiction of foreign corporations. 
 Approved, Ahern v. National Steamship Co., 11 
 Abb. N. S., 356 ; 3 Daly, 399. 
 
 Payne v. Sheldon, 43 How., 1. Reversed, 63 
 Barb., 169. 
 
 Peck V. Armstrong, 38 Barb., 215. Implied war- 
 ranty of quality. Followed, Newberry v. Wall. 
 35 N. Y. Supr., 106. 
 V. Brown, 26 How., 350. Determination 
 
CASES CRITICISED. 
 
 -xxxix 
 
 of claims to real property. FoUowed, Baynes 
 V. Onderdonk, 2 Hun, 619. 
 
 Peck V. Cook, 41 Barb., 549. Affidavit for 
 publication of summons. Explained, Handtey 
 V. Quick, 47 How., 283. 
 
 Pegram v. Carson, 10 Bosw., 505. Factor. Dis- 
 tinguished, Eqwland v. Woodruff, 60 N. Y., 73. 
 
 Pell V. Ulmar, 18 N. Y., 139. Bight of redemp- 
 tion. Approvedj Wood v. Terry, 4 Lans., 80. 
 
 Penfield v. James, 12 Abb. N. S., 247. Affirmed, 
 56 N. Y., 659. 
 
 Perm v. Buffalo ^ Erie R. R. Co., 3 Lans., 443. 
 Reversed, 49 N. Y., 204. 
 
 Pennell v. Wilson, 2 Abb. N. S., 466. Reform- 
 . ing written instrifflent. Distinguished, O'Don- 
 nelly. Harmon, 3 Daly, 424. 
 
 Pennington y. Townsend, 7 Wend., 276. Prohibit- 
 ory statute, effect of. FoUowed, Swords v. 
 Owen, 43 How., 176 ; 34 N. Y. Supr., 277. 
 
 People v. Abbott, 19 Wend., 192. Evidence as to 
 character. Followed, Ford v. Jones, 62 Barb., 
 484. 
 
 V. Adirondack Co., 57 Barb., 661. Town 
 
 aid to railroad. Followed, People ex ret. Beards- 
 ley V. Van Valkenburgh, 63 Barb., 105. 
 
 • V. Adler, 3 Park. Cr., 249. Felony. Ex- 
 
 plained, People ex rel. Stetzer v. Rawson, 61 
 Barb., 619. 
 
 ■ V. Albany and Susg. R. R. Co., 5 Lans., 
 
 126. Affirmed in part, 57 N. Y., 161, 
 
 ■ V. Annis, 45 Barb., 304. Tenancy. Crit- 
 
 icised, Kerrains y. People, 60 N. Y., 221 
 
 V. Assessms of Brooklyrtf 39 N. Y., 81. 
 
 Assessment of corporation. Followed, People 
 ex rel. Am. Lin. Thread Co. v. Assessors of 
 Mechanicsville, 6 Lans., 105 : 61 Barb., 273. 
 
 V. Bartktt, 3 Hill, 570. Performance 
 
 prevented. Distinguished, First National Bank, 
 etc. V. In^. Co. of North America, 5 Lans., 203. 
 . V. Batcheldor, 22 N. Y., 138. Officer hold- 
 
 ing over. Distinguished, People ex rel. Hill v. 
 Bull, 46 N. Y., 57. 
 
 V. Batchellor, 53 N. Y., 128. Bonding 
 
 People V. Cassels, 5 Hill, 164. Habeas corpus. 
 Approved, People ex ret. Tweed v. Liscomb, 60 
 N. Y., 569. 
 
 V. Chalmers, 1 Hun, 683. Affirmed, 60 
 
 towns. Distinguished, Tovm ofDuanesburgh v. 
 Jenkins, 57 N. Y., 177. Constitutional law. 
 Distinguished, People ex rel. N. Y. and H. R. 
 R. Co. V. Havemeyer, 47 How., 494 ; Wallack v. 
 Mayor, etc. of New York, 3 Hun, 84. 
 
 ■ V. Bennett, 6 Abb. N. S., 384 ; 6 id., 343 
 
 Action for penalty. Criticised, Abbott v. New 
 York Central, etc. R. R. Co., 12 Abb. N. S., 
 465. 
 
 V. Berner, 13 Johns., 383. Surety, when 
 
 exonerated. Followed, Atlantic and Pac. Tele 
 graph Co. v. Barnes, 39 N. Y. Supr., 40. 
 
 • V. Boardman, 4 Keyes, 59. Appeal. Dis 
 
 tinguished. Matter of Commissioners of Central 
 Park, 50 N. Y., 493. 
 
 • V. Board of Police, 26 Barb., 481. Cer- 
 
 tiorari. Followed, People ex rel. Grace v. 
 Police Commissioners of Troy, 48 How., 385 ; 
 People ex rel. Seymour v. Canal Board, 7 Lans., 
 220. 
 
 ■ V. Booth, 32 N. Y., 398. Action by attor- 
 
 ney-general. Distinguished, People v. Tweed, 
 18 Abb. N. S., 25. 
 
 ■ V. Village ofBtpoklyn, 1 Wend., 319. Emi- 
 
 nent domain. Approved, In re Commissioners 
 of Washington Park, 56 N. Y., 144. 
 
 - v. Canal Board, 7 Lans., 220. Certiorari. 
 
 Followed, People v. McDonald, 2 Hun, 70. 
 
 N. Y., 154. 
 
 ■ V. Commissioners of Taxes, 23 N. Y., 192. 
 
 Assessment of capital stock. Approved, Pa- 
 cific Steamship Co. v. Commissioners of Taxes, 
 46 How., 315. 
 
 V. Commissioners, etc. Town of Palatine, 53 
 
 Barb., 70. Title of local act. Approved, 
 Sullivan v. Mayor, etc. of New York, 45 How., 
 152. 
 
 • V. Contracting Board, 27 N. Y., 378 ; 33 
 
 id., 382. Mandamus. Approved, People ex 
 rel. Grace v. Police Commissioners of Troy, 12 
 Abb, N. S., 181. 
 
 v. Colt, 1 Park., 611. Writ of error. 
 
 Approved, People v. Rogers, 13 Abb. N. S., 
 370. 
 
 ■ V. Cook, 8 N. Y., 67. Quo warranto. Fol- 
 
 lowed, People ex rel. Gregory v. Love, 63 Barb., 
 535. Canvass of election. Followed, People 
 ex rel. Judson v. Thatcher, 7 Lans., 274. 
 
 ■ V. Costello, 1 Den., 83. Indictment. Fol- 
 
 lowed, People ex rel. Tweed v. Liscomb, 3 Hun, 
 760. 
 
 • V. Cowles, 4 Keyes, 46. Commitment for 
 
 contempt. Followed, In matter of Watson, 5 
 Lans., 466. 
 
 • V. Cunningham, 1 Duer, 524. Prescription 
 
 against state. Approved, Crill v. City of Rome, 
 47 How., 398. 
 
 ■ v. Draper, 15 N. Y., 532. Constitutional 
 
 law. Followed, People ex rel. Sherrill v. Canal 
 Board, 4 Lans., 272. Distinguished, People 
 ex rel. Bolton v. Albertson, 55 N. Y., 50. 
 
 V. Dunning, 1 Wend., 16. Liability of 
 
 sheriff. Approved, James v. Gwrley, 48 N. Y., 
 162. 
 
 ■ V. Dutchess Common Pleas, 20 Wend., 658. 
 
 Mandamus, Approved, People ex rel. Grace v. 
 Police Commissioners of Trmj, 12 Abb. N. S., 
 181. 
 
 V. Falconer, 2 Sandf., 81. Estoppel. 
 
 Approved, Field v. Van Cott, 15 ~Abb. N. S., 
 349. 
 
 V. Fancher, 2 Hun, 226. Habeas carpus. 
 
 Followed, People ex rel. Tweed v. Liscomb, 3 
 Hun, 760. 
 
 • V. Ferguson, 38 N. Y., 91. Assessment of 
 
 capital stock. Distinguished, People ex rel, 
 Broadway and Seventh Ave. R. R. Co. v. Conrt- 
 missioners of Taxes, i6 How., 227. Correction 
 of assessment. Followed, People ex ret. Am. 
 Lin. Thread Co. v. Assessors, etc., 6 Lans., 105 ; 
 61 Barb., 273. 
 
 V. Fields, 58 N. Y., 491. Money paid. 
 
 Followed, Board of Supervisors of Richmond Co. 
 V. Ellis, 59 N. Y., 620. 
 
 ■ V. Flagg, 17 N. Y., 588. Claims against 
 
 New York city. Approved, People ex rel. Mar- 
 tin V. Earle, 47 How., 458. 
 
 •46 N. Y., 401. Constitution'al 
 
 law. Distinguished, People ex rel. D. W. and 
 P. R. R. Co. V. Batchellor, 53 N. Y., 128. 
 
 ■ V. Foster, 50 N. Y., 598. Mayhem. Dis- 
 
 tinguished, Godfrey v. People, 5 Hun, 869. 
 
 V. Freeman, 4 Den., 9. Insanity as a de- 
 
 fense. Approved, People v. Montgomtry, 18 
 Abb. N. S., 207. 
 
xl 
 
 CASES CRITICISED. 
 
 Peopk T. Gardner, 24 N. Y., 583. Canal board, 
 «rder on appeal. Followed, People ex rel. Sey- 
 mour T. Canal Board, 7 Lans., 220. 
 
 V. Gat/, 10 Wend., 509. Jurisdiction of 
 
 Oyer and Terminer. Followed, People v. 
 Myers, 2 Hun, 6. 
 
 ■ V. General Sessions of New York, 3 Barb., 
 
 144. Jurisdiction of Oyer and Terminer. 
 Approved, People v. Myers, 2 Hun, 6. 
 
 ■ V. German fJ, St. Stephen's Church, 53 N. 
 
 Y., 103. Mandamus. Distinguished, People 
 V. Benevolent Soc, 3 Hun, 361, 
 
 ■ V. Gibbs, 9 Wend., 32. Survival of action. 
 
 Distinguished, Heinmuller v. Gray, 44 How,,. 
 260 ; 13 Abb. N. S., 299 ; 35 N. Y. Supr., 196. 
 ■ V. Goodwin, 18 Johns., 187. Second trial 
 
 in criminal ease. Followed, People v. Reagle, 
 60 Barb., 527. 
 
 V. Hackley, 24 N. Y., 74. Contempt. 
 
 Approved, People ex rel. Wolf v. Jacobs, 6 Hun, 
 428. Followed, People ex rel, Phelps v. Fan- 
 cher, 2 Hun, 226. 
 
 V. Hanna, 3 How., 39. Habeas carpus, 
 
 where heard. Followed, People v. Folmsbee, 
 60 Barb., 480. Jurisdiction. Followed, People 
 ex rel. Seilbronner v. Hoster, 14 Abb. N. S,, 414. 
 
 v. Harrison, 8 Barb., 560. Forgery. 
 
 Approved, Cunningham v. People, 4 Hun, 455. 
 V. Haynes, 14 Wend., 546. Review in 
 
 criminal cases. Followed, Higgins v. People, 
 7 Lans., 110. 
 
 V. Heriot, 2 Park., 20. Proof of hand- 
 
 writing. Distinguished, Rowing v. Manley, 13 
 Abb. N. S., 276; 49 N. Y., 192. 
 
 ■ V. Hicks, 15 Barb., 153. Habeas corpus. 
 
 Approved, Shank's case, 15 Abb. N. S., 38. 
 ■ V. Hills, 35 N. Y., 449. Local act. Dis- 
 
 tinguished, People V. Davis, 61 Barb., 456. 
 
 ■ V. Hulbert, 59 Barb., 486. Town aid to 
 
 railroad. Followed, People ex rel. Beardsley 
 V. Van Valkenburgh, 63 Barb., 105. 
 
 ■ V. Ingersoll, 58 N. Y., 1. Action by State. 
 
 Followed, People v. Fields, 58 N. Y., 491. 
 
 • V. Jackson, S Park., 391. Evidence of 
 
 character. Overruled, Ford v. Jones, 62 Barb., 
 484. 
 
 • V. Kerr, 27 N. Y., 188. Eight of public 
 
 in streets. Approved, Trenor v. Jackson, 46 
 How., 389 ; 15 Abb. N. S., 115 ; Kellinger v 
 Forty-second St., etc. R. R. Co., 50 N. Y., 206. 
 V. Knapp, 1 Edm., 177. Criminal evi- 
 
 dence. Followed, Shaw v. People, 3 Hun, 272. 
 • V. Lawrence, 6 Hill, 244. Mandamus. 
 
 Overruled, Healey v. Dudley, 6 Lans., 115, 
 
 -, 41 N. Y. 137. Constitutional 
 
 law. Approved, People ex rel. N. Y. ^ H. R, 
 R. Co. V. Havemeyer, 47 How., 494. 
 
 ■ V. Lohman, 2 Barb., 450. Habeas corpus. 
 
 Explained, People v. Folmsbee, 60 Barb., 480. 
 • V. Lowber, 7 Abb., 158. Action by attor- 
 
 ney-general. Approved, People v. Tweed, 13 
 Abb. N. S., 25. 
 
 ■ V. Mayor, etc. of Brooklyn, 4 N. Y., 419. 
 
 Taxation and eminent domain. Followed, 
 Astor V. Mayor, etc. of New York, 37 N. Y. 
 Supr., 539. Law imposing tax. Approved, 
 People ex rel. N. Y. ^ H. R. R. Co. v. Have- 
 meyer, 47 How., 494. Constitutional law. Dis- 
 tinguished, People ex rel. D. W. ^ P. R. R. Co. 
 V. BateAeWor, 53N. Y., 128. 
 v. Mayor, etc. of New York, 2 Hill, 12. 
 
 le ex rel. Davis v. Hill, 65 
 
 Certiorari. 
 Barb., 435. 
 
 v. Mayor, etc. of New York, 32 Barb., 102 ; 
 
 9 Abb., 253 ; 10 id., 144. Action by attorney- 
 general. Approved, People v. Tweed, 13 Abb. 
 N. S., 26. Ferry franchise. Distinguished, 
 Mayor, etc. of New York v. New York ^ Staten 
 Island Ferry Co., 49 How., 250. 
 
 ■ v. McCann, 16 N. Y., 68. Public and 
 
 local statutes. Approved, McLain v. Mayor, 
 etc. of New York, 3 Daly, 88. 
 
 ■ V. McGonville, 86 N. Y., 449>Jjocal stat- 
 
 utes. Approved, People v. Supervisors of Chau- 
 tauqua, 43 N. Y., 10. 
 
 . V. McGumber, 18 N. Y., 315. Pleading. 
 
 Approved, Cojnmonwealth Bank of Philadelphia 
 y.Pryor, 11 Abb. N.S., 227. Striking out 
 sham defense. Explained and limited. Way- 
 land V. Tysen, 45 N. Y. 281.- 
 
 . V. McFadden, 13 Wend., 396. Pleading. 
 
 Followed, Roediger v. Simmons, 14 Abb. N. S., 
 256. 
 
 ■ V. ilfc£ay, 18 Johns., 212. Second trial 
 
 in criminal case. Followed, People v. Reagle, 
 60 Barb., 527. 
 
 • V. McMahon, 15 N. Y., 386. Confessions 
 
 as evidence. Held overruled by Teachout v. 
 People, 41 N. Y., 7; People v. Montgomery, 13 
 Abb. N. S., 207. 
 
 ■ V. Mead, 24 N. Y., 114. Mandamus. 
 
 Followed, People ex rel. N. Y. ^ H. R. R. Co. 
 V. Havemeyer, 3 Hun, 97 ; 47 How., 494 ; 
 Healey v. Dudley, 6 Lans., 115. 
 
 -, 36 N. Y., 224. Mandamus. 
 
 Distinguished, Healey v. Dudley, 5 Lans., 115. 
 V. Meighan, 1 Hill, 298. Bond taken 
 
 colore officii. Approved, Richardson v. Cran- 
 dall, 48 N. Y., 348. 
 
 ■ V. Mercien, 8 Paige, 49. Jurisdiction of 
 
 habeas corpus. Approved, People ex rel. HeiU 
 bronner v. Hoster, 14 Abb. N. S., 414. 
 
 ■ V. Miner, 2 Lans., 396. Actions by attor- 
 
 ney-general. Followed, People v. Albany and 
 Suso. R. R. Co., 5 Lans., 26. Criticised, People 
 V. Tweed, 13 Abb. N. S., 25. 
 
 ■ V. Mitchell, 35 N. Y., 561. Confirmatory 
 
 acts. Followed, Town of Duanesburgh v. Jen- 
 kins, 57 N. Y., 177. 
 
 ■ V. Molineaux, 63 Barb., 10 ; 40 N. Y., 113. 
 
 Constitutional law. Followed, People ex rel. 
 Underwood v. DanieU, 6 Lans., 44. Statutory 
 construction. Followed, Bishop v. Barton, 2 
 Hun, 436. 
 
 T. Monnais, 17 Abb., 345. Rape. Distin- 
 guished, People V. Dohring, 69 N. Y., 374. 
 
 ■ V. Nevins, 1 Hill, 154. Contempt. Criti- 
 
 cised, Ford V. Ford, 41 Hun, 169 ; 10 Abb. N. 
 S., 174. Order to pay costs. Followed, Kelly, 
 In Matter of, 3 Hun, 636. 
 
 V. NewYork Central R. R. Co., 29 N. Y., 
 
 418. Substantial right. Approved, Ramsay 
 V. Gould, 4 Lans., 476 ; Diyf, Matter of, 41 
 How., 350 ; 10 Abb. N. S., 416 ; 43 N. Y., 469. 
 Extra allowance. Explained, Dupuu v. Wurtz, 
 47 How., 225 ; 1 Hun, 119. 
 
 • V. Norton, 7 Barb., 477. Revocation of 
 
 license. Approved, People ex rel. Better v. 
 Wright, 3 Hun, 306. 
 
 -, 9N. Y.,'l78. Estoppel. Fol- 
 
 lowed, Field v. Van Cott, 16 Abb. N. S., 349. 
 Jurisdiction. Followed, People ex rel. Jennys 
 T. Breman, 8 Hun, 666. 
 
CASES CRITICISED. 
 
 xli 
 
 People V. Nostrand, 46 N. Y., 876. Assessments. 
 Followed, Coleman v. Shattuck, 2 Hun, 497. 
 OfBcer's liability. Distinguished, Foot v. Stiles, 
 57N.Y.,399. 
 
 V. O'Brien, 38 N. Y., 193. Local act. 
 
 Distinguished, Healey v. Dudley, 6 Lans., 115. 
 People V. Davis, 61 Barb., 456. 
 
 V. Pease, 27 N. Y., 45. Evidence, can- 
 vasser's certificate. Followed, People ex rel. 
 Stemmler y. McGuire, 2 Hun, 268. Distinguish- 
 ed, People ex rel. Judson v. Thacher, 7 Lans., 
 274. 
 
 V. Phillips, 5 Wend., 9. Indictment for 
 
 perjury. Followed, Burns v. People, 5 Lans., 
 
 189. 
 T. Sansom, 7 Wend., 414. New trial for 
 
 irregularity. Approved, People v. Gaffniy, 14 
 
 Abb. N. S., 36. 
 V. , 2 N. Y., 490. SherifE's deed. 
 
 Distinguished, Phillips v. Shiffer, 14 Abb. N. S., 
 
 101. 
 V. Raymond, 37 N. Y., 428. Commission- 
 ers of Records. Law held unconstitutional. 
 
 People ex rel. Kingsland v. Bradley, 42 How., 
 
 423. 
 V. Rector 19 Wend., 569. Evidence of 
 
 threats. Approved, Temple v. People, 4 Lans., 
 
 119. 
 V. Reddy, 43 Barb., 544. Correction of 
 
 assessments. Followed, People ex rel. Am. Lin. 
 
 Thread Co. v. Assessors, etc., 6 Lans., 105 ; 61 
 
 Barb., 273. 
 V. Safford, 5 
 
 Den., 112. Impeaching 
 
 one's own witness. Followed, Coulter v. Am. 
 
 Merchants Un. Ex. Co., 56 N. Y., 585. 
 V. Saxton, 22 Wend., 309. Quo warranto. 
 
 FoUojved, People ex rel. Gregory v. Love, 63 
 
 Barb., 535. 
 V. Schackno, 48 Barb., 551. 
 
 rel. 
 
 Tenancy at 
 Aldhouse v. 
 
 will. Approved, People ex 
 
 Goelet, 14 Abb. N. S.. 130. 
 V. Schermerhom, 19 Barb., 559. Condition 
 
 in statute. Distinguished, Stevenson v. Mayor, 
 
 etc. of New York, 1 Hun, 51. 
 V. Schoonmaker, 63 Barb., 44. AfSrmed, 
 
 50 N. Y., 499. 
 — ■ — V. Shaw, 1 Park, 327. Assault with in- 
 tent to kill. Limited, Slatterly v. People, 58 
 
 N. Y., 364. ~ 
 V. Shay, 18 How., 538. Felony. Fol- 
 lowed, People ex rel. Stetzer v. Rawson, 61 
 
 Barb., 619. 
 V. Shepard, 36 N. Y., 285. Constitutional 
 
 law. Distinguished, People ex rel. Bolton v. 
 
 Albertson, 55 N. X., 60. 
 V. Shepherd, 25 N. Y., 406. Second trial 
 
 in criminal case. Followed, People v. Reagle, 
 
 60 Barb., 527. 
 
 • V. Smith, 45 N. Y., 776. Certiorari. 
 
 Fol- 
 lowed, People V. Sanders, 8 Hun, 16. 
 
 V. Spooner, 1 Den., 343. Proof of hand- 
 writing. Approved, Frank v. Chemical Na- 
 tional Bank, 37 N. Y. Supr., 26. 
 
 ■ V. Standish, 6 Park. Cr., 111. Indictment. 
 
 Approved, People v. Town Auditors of Castle- 
 ton, 44 How., 238 ; 13 Abb. N. S., 431. 
 
 V. Stevens, 4 Park., 316. Separation of 
 
 jury. Approved, People v. Montgomery, 13 
 Abb. N. S., 207. 
 
 V. Stocking, 50 Barb., 67. Indictment. 
 
 Approved, People v. Town Auditors of Castle- 
 ton, 44 How., 238 ; 13 Abb. N. S., 431. 
 
 V. Stokes, 53 N. Y., 164. Criminal evi- 
 dence. Followed, Shaw v. People, 3 Hun, 272. 
 ■ V. Sturtevant, 9 N. Y., 266. Order, effect 
 
 of irregularity. Approved, Pinckney v. Hager- 
 man, 4 Lans., 374. 
 
 . V. Supervisors of Alleghany, 15 Wend., 198. 
 
 Certiorari. Followed, People v. McDonald, 2 
 Hun, 70. 
 
 ■ V. Supervisors of Chautauqua, 43 N. Y., 
 
 10. Local act. Followed, Lewenthal v. Mayor, 
 
 etc. of New York, 5 Lans., 632; 61 Barb., 511. 
 V. Supervisors of Chenango, 11 N. Y., 563. 
 
 Personal liability of assessors. Followed, 
 
 Wade V. Matthews, 4 Lans., 168 ; Palmer v. 
 
 Lawrence, 6 Lans., 282. 
 V. Supervisors of Columbia Co., 10 Wend, 
 
 363. Mandamus. Followed, People ex rel. 
 
 N. Y. and H. R. R. Co. v. Havemeyer, 3 Hun, 
 
 97 ; 47 How. 494. 
 
 - V. Supervisors of Dutchess Co., 1 Hill, 50' 
 
 Mandamus, degree o£ certainty required. Dis- 
 tinguished, People ex rel. Henry v. Nostrand, 48 
 N. Y., 875. 
 
 V. Supervisors of Kings Co., 52 N. Y., 494. 
 
 Law imposing tax. Distinguished, People ex 
 rel. N. Y. and H. R. R. Co. v. Havemeyer, 47 
 How., 494. 
 
 ■ V. Supervisors of Queens Co., 1 Hill, 201. 
 
 Writ of prohibition. Approved, Norton v. 
 Dowling, 46 How., 7. 
 
 ■ V. Supervisors of Ulster Co., 34 N. Y., 272. 
 
 Statute directory. Approved, National Bank 
 of Chemung v. City ofElmira, 6 Lans., 116. 
 ■ v. Supervisors of Westchester Co., 4 Barb., 
 
 64. Constitutional law. Distinguished, Matter 
 of widening Broadway, 42 How., 220 ; 61 Barb., 
 483. 
 
 -V. Thatcher, 55 N. Y., 525. Evidence, 
 
 canvasser's certificate. Followed, People ex 
 rel. Stemmler v. McGuire, 2 Hun, 268. 
 
 ■ V. Tioga Commona Pleas, 19 Wend., 73. 
 
 Personal tort not assignable. Followed, Pulver 
 y. Harris, 62 Barb., 500. 
 
 • V. Townbee, 13 N. Y., 378. Eight of trial 
 
 by jury. Distinguished, Knight v. Campbell, 62 
 Barb., 16. Special sessions, jurisdiction. Dis- 
 tinguished, People ex rel. Stetzer y. Rawson, 61 
 Barb., 619. 
 
 • V. Tredway, 3 Barb., 470. Indictment 
 
 for perjury. Approved, Burns v. People, 5 
 Lans., 189. 
 
 ■ V. Tweed, 13 Abb. N. S., 25. Action by 
 
 attorney-general. Questioned, Supervisors of 
 NewYork v. Tweed, 13 Abb. N. S., 152. 
 
 V. Vanderbilt, 26 N. Y., 287. Nuisance. 
 
 Distinguished, Delaware and Hudson Canal Co. 
 V. Lawrence, 2 Hun, 163. Piers. Followed, 
 People V. N. Y. §r Staten Island Ferry Co., 49 
 How., 511. 
 
 ■ V. Van Nort, 64 Barb., 205. . Contracts by 
 
 New York city. Followed, Greene v. Mayor, 
 e«c., 60N. Y., 303. 
 
 ■ V. Vilas, 36 N. Y., 459. Surety. Distin- 
 
 guished, People V. Chalmers; 60 N. Y., 154. 
 V. Warner, 6 Wend., 271. Indictment. 
 
 Followed, Harris v. People, 4 Hun, 1. 
 
 Webster, 3 Park. Cr., 603. Contempt. 
 
 Disapproved, Bowen v. Hunter, 46 How., 193. 
 ■ V. Weed, 31 N. Y., 465. Record in crim- 
 
 inal case. Criticised, Graham v. People, 6 
 Lans., 149. 
 
xlii 
 
 CASES CRITICISED. 
 
 People V. Wheeler, 21 N. Y., 86. Judges, dis(iuali- 
 flcation. Followed, Footw. Stiles, 57 N. Y. 399. 
 
 V. Willis, 32 N. Y., 715; 5 Park., 621. 
 
 Insanity relieving from responsibility. Fol- 
 lowed, People V. Montgomery, 13 Abb. N. S., 
 207. 
 
 ■ V. Woodruff, 32 N. Y., 353. Power when 
 
 exhausted. Followed, Smith v. Mayor, etc. of 
 
 New York, 47 How., 277 ; 1 Hun, 56. 
 Y. Yates General Sessions, 5 Wend., 110. 
 
 Jurisdiction. Followed, People ex rel. Stetzer 
 
 \. Rawson, 61 Barb., 619. 
 V. Zeyst, 23 N. Y., 140. Parol proof to 
 
 contradict record. Approved, Piercev.Wright, 
 
 45 How., 1. 
 
 • ex rel. Aiken v. Morgan, 65 Barb., 473. 
 
 Reversed, 55 N. Y., 587. 
 
 , 55 N. Y., 587. Bonding towns. 
 
 Followed, People ex rel. Cortain v. Walker, 2 
 Hun, 385. 
 
 - Armstrong v. New York Central and Bud. 
 
 Riv. R. R. Co., 2 Hun, 482. Affirmed, 60 N. 
 Y., 116. 
 
 Bank of the Commonwealth v .Commissioners, 
 
 32 Barb., 509. Assessment of capital stock. 
 Distinguished, People ex rel. Broadway and Sev- 
 enth Ave. R. R. Co. v. Commissioners of Taxes, 
 etc., 46 How., 227. 
 
 ■ Blossom V. Nelson, 10 Abb. N. S., 200 ; 
 
 60 Barb., 159. Reversed, 11 Abb. N. S., 106 ; 
 but Affirmed, 46 N. Y., 477. 
 
 • Brooklyn Park Commissioners v. City of 
 
 ' Brooklyn, 31 Hun, 596. Affirmed, 60 N. Y., 
 642. 
 
 Brown v. Green, 2 N. Y. Supr., 18. Al- 
 
 lowance by supervisors. Distinguislied, Cowan 
 v. Mayor, etc. of New York, 3 Hun, 632. 
 
 ■ Buffaio and St. Line R. R. Co. v. Freder- 
 
 icks, 48 Barb., 173 ; 33 How., 150. Affirmed, 
 S. C, 48 N. Y., 70. Followed, Same v. Super- 
 visors of Erie Co., 48 N. Y., 93. 
 
 Davies V. Commissioners' of Taxes, 47 N< 
 
 Y., 501. Followed, People ex rel. White v. Same, 
 and other cases, id., 672. 
 
 Davis V. Hill, 65 Barb., 435. Affirmed, 
 
 58 N. Y., 547 
 
 ■ micher V. Ger. M. Ev. St. Stephen's Ch., 3 
 
 Lans., 434. Affirmed, 6 Lans., 172. Reversed, 
 53 N. Y., 108. 
 
 • Ellis V. Flagg, 15 How., 553. Comptroller 
 
 of New York city, etc., powers of. Distin- 
 guished, Brawn v Green, 46 How., 302. 
 
 ■ E. and G. V. R. R. Co. v. Tubbs, 59 Barb., 
 
 401. In part affirmed, 49 N. Y., 856. 
 
 - Furman v. Clute, 12 Abb. N. S., 399. Mod- 
 
 ified, 63 Barb., 356. In part reversed, 50 N. 
 Y., 461. 
 
 Gardner v. Davis, 5 Lans., 1 ; 59 Barb., 
 
 198. Affirmed, 45 N. Y., 812. 
 
 Grace v. Police Commissioners of Troy, 12 
 
 Abb. N. S., 181. Affirmed, 43 How., 385. 
 ■ Haines v. Smith, 3 Lans., 291. Affirmed, 
 
 45 N. Y., 772, 
 
 • Hill V. Bull, 46 N. Y., 57. Constitutional 
 
 law. Approved, People ex rel. Williamson v. 
 McKinney, 62 ■S.Y.,SU. 
 
 ■ Hilton V. Supervisors of Albany, 12 Wend., 
 
 257. Official compensation. Explained, Cro- 
 fut V. Brandt,A6 How., 481 ; 47 Id., 268. 
 
 ■ Hoyt V. Commissioners of Taxes, 23 N. Y., 
 
 224. Taxation. l^oHowed, People ex rel. Trow- 
 
 bridge V. Commissioners o/" Taxes, etc., 4 Hunj 
 595 ; Pacific Steamship Co. v. Commissioners of 
 Taxes, etc., 46 How., 316. Place of taxation. 
 Distinguislied, People ex rel. Pac. M. S. Co. v. 
 Commissioners of Taxes, 58 N. Y., 242. 
 
 ■ Irwin V. Sawyer, 52 N. Y., 296. Bonding 
 
 towns. 'FolIowed.'Peojofe ex rel. Angel v. Hatch, 
 65 Barb., 430. 
 
 -Johnson v. Board of Supervisors of Delaware 
 
 Co., 9 Abb. N. S., 408. Affirmed in part, 45 
 N. Y., 196. Claims against New York city. 
 Approved, People ex rel. Martin v. Earle, 47 
 How., 458. 
 
 ■ Kelly V. Haws, 12 Abb., 192. Auditor of 
 
 N. Y. city, powers of. Approved, Brown v. 
 Green, 46 How., 302. Claims against city. 
 Approved, People ex rel. Martin v. Earle, 47 
 How., 458. 
 
 • Kingsland V. Bradley, 42 How., 423. Re- 
 
 versed, 64 Barb., 228. 
 
 - Livingston v. Taylor, 30 How., 78. Man- 
 
 damus. Distinguished, People ex rel. Grace v. 
 Police Commissioners of Troy, 12 Abb. N. S., 
 181. 
 
 - Loomis V. Canal Appraisers, 33 N. Y.,461. 
 
 Riparian rights. Approved, Crill v. City of 
 Rome, 47 How., 398. 
 
 - Mann v. Mott, 2 Hun, 672. Affirmed, 60 
 
 N. Y., 649. 
 
 Marsh V. Delaney, 49 N. Y., 655. Assess- 
 ment. Followed, People ex rel. Williams v. 
 Board of Assessors of Albany, 2 Hun, 583. 
 
 - Mitchell V. Sheriff of New York, 29 Barb., 
 
 622 ; 7 Abb. 96. Habeas corpus. Approved, 
 Shank's case, 15 Abb. N. S., 38. 
 
 Musgrave v. N. Y. Common Pleas, 9 
 
 Wend., 429. Practice in mandamus. Disap- 
 proved, People ex rel. Sunderlin v. Ovenshire, 41 
 How., 164.- 
 
 Mygatt v. Supervisors of Chenango, 11 N. 
 
 Y., 563. Recovery of illegal tax. Questioned 
 and distinguished, Newman v. Supervisors of 
 Livingston Co., 45 N. Y., 676. 
 
 Navano v. Van Nort, 64 Barb., 205. Con- 
 
 tracts fbr public work. Distinguished, Greene 
 V. Mayor, etc. of New York, 1 Hun, 24. 
 
 ■ New York and H. R. R. -Co. v. Mayor, etc. 
 
 of New York, 4 N. Y. Supr., 366. Mandamus. 
 Followed, People v. City of Brooklyn, 3 Hun, 
 596. 
 
 - Pac. Mail Steamship Co. v. Commissioners 
 
 of Taxes of New York, 47 How., 164. Affirmed, 
 68 N. Y., 242. 
 
 • Phoenix v. Supervisors of New York, 1 Hill, 
 
 362. Extra compensation. Followed, Cowan 
 V. Mayor, etc. of New York, 3 Hun, 632. 
 
 ! v. Green, 46 How., 169. Affirmed, 
 
 58 N. Y., 295. 
 
 - Siemmler v. McGuire, 2 Hun, 468. Af- 
 
 firmed, 60 N. Y., 640. 
 
 ■ Titus V. Board of Police, 35 Barb., 535. 
 
 Mandamus. Distinguished, People ex rel, 
 Grace v. Police Commissioners of Troy, 12 Abb, 
 N. S., 181. 
 
 Trowbridge v. Commissioners, 4 Hun, 595. 
 
 Taxes. Followed, People ex rel. Pac. Mail 
 Steamship Co. v. Commissioners of Taxes, 5 
 Hun, 200. 
 
 Tweed V. Liscomi, 8 Hun, 760. Reversed, 
 
 60 N. Y., 559. 
 
 -, 60 N. Y., 659. Contempt. Dis- 
 
CASES CRITICISED. 
 
 xliii 
 
 tingulBhed, People ex rel. Woolf v. Jacobs,- 5 
 
 Hun, 428. Habeas corpus. Followed, Mailer 
 
 of Jacobs, 49 How., 370. 
 People ex rel Underwood v. Daniell, 6 Lans., 44. 
 
 Affirmed, 50 N. Y., 274. 
 While V. Hulberl, 59 Barb., 446. Beversed, 
 
 46 N. Y., 110. 
 
 Williams v. Haines, 49 N. Y., 587. Illegal 
 
 tax. Followed, Dewey v. Supervisors of Niag- 
 ara Co., 2 Hun, 393. 
 
 Youmans v. Board of Supervisors, 2 Hun, 
 
 102. Reversed, 60 N. Y., 381. 
 Percival v. Hickey, 18 Johns., 256. Form of 
 
 action. Approved, Losee v. Saratoga Paper 
 
 Co., 42 How., 385. 
 
 V. Jones, 2 Johns. Ch., 49. Justifleation 
 
 of arrest. Distinguished, Gardner v. Bain, 5 
 Lans., 256. 
 
 Perkins v. Giles, 53 Barb., 342. Affirmed, 50 N. 
 Y., 228. 
 
 V. Savage, 15 Wend., 412. Money paid. 
 
 Approved, Knowllon r. Congress and Empire 
 Spring Co., 57 N. Y., 518. 
 
 Perry v. Chester, 36 N. Y. Supr., 228. Reversed, 
 53 N. Y., 240. 
 
 Person v. Warren, 14 Barb., 488. Action by 
 committee of lunatic. Approved, Fields v. 
 Fowler, 2 Hun, 400. 
 
 Peters v. Delaplaine, 49 N. Y., 362. Specific per- 
 formance. Approved, Stemberger v. Mc Govern, 
 15 Abb. N. S., 257. Distinguished, McColler 
 V. Lawrence, 4 Hun, 107. 
 
 Petersen v. Chemical Bank, 29 How., 240 ; 32 N. 
 Y., 21. Foreign administrator, authority of. 
 Distinguished, Stone v. Scripture, 4 Lans., 186. 
 
 Peterson v. Humphrey, 4 Abb., 394. Trade- 
 marks. Explained and disapproved, Reeves v. 
 Denicke, 12 Abb. N. S., 92. 
 
 V. Wabh, 1 Daly, 182. Jurisdiction. 
 
 Overruled, Wilson v. Mills, 10 Abb. N. S., 143. 
 
 Petrie v. Fitzgerald, 1 Daly, 401. Waiver of 
 privilege. Approved, Farmer v. Bobbins, 47 
 How., 414. distinguished, Bacharach v. La- 
 grave, 47 How,, 385 ; 1 Hun, 689. 
 
 Petty v. Tooker, 21 N. Y., 267. Religious cor- 
 poration. Followed, Watkins v. Wilcox, 4 Hun, 
 220. Approved, Van Buren v. Reformed Church 
 of Gansevoort, 62 Barb., 495. 
 
 Phelps V. Hawley, 3 Lans., 160. Affirmed, 52 
 N. Y., 23. 
 
 V. Pond, 23 N. Y., 83. Accumulations, ti- 
 tle to. Followed, Robison v. Robison, 6 Lans., 165. 
 V. Swan, 2 Sweeny, 696. Appeal, dis- 
 
 missal. Explained, Carraher v. Carraher, 42 
 How., 458 ; 10 Abb. N. S., 838 ;33N. Y. Supr., 
 502. 
 Philbrickv. Hallett, 43 How., 419; 12 Abb. N. S., 
 419. Bona fide holder. Approved, Justh y. 
 National Bank of Commonwealth, 45 How., 492. 
 
 Phillips, In matter of, 60 N. Y., 16. Assessments. 
 
 Distinguished, In matter of Anderson, id., 457. 
 Phillips V. Mayor, etc. of New York, 2 Hun, 212. 
 
 Reversed, In re Phillips, 60 N. Y., 16. 
 V. Rensselaer and Sar. R. R. Co., 57 Barb., 
 
 642. Reversed, 49 N. Y., 177. 
 V. 49 N. Y., 177. Contributory 
 
 negligence. Distinguished, Dale v. Brooklyn 
 
 City H. P. and P. P. R. Co., 1 Hun, 146. 
 
 . V. Walker. Referee's fees. Order revers- 
 
 ed, 4 Hun, 645. 
 
 Phillips V. Wickham, 1 Paige, 594. Officer. Ap- 
 proved, People ex rel. Fowler v. Bull, 46 N.Y., 57. 
 
 PAosni'a: v. £)ay, 5 Johns., 412. Jurisdiction. Dis- 
 tinguished, Gilbert v.' Priest, 14 Abb. N. S., 165 ; 
 65 Barb., 444. 
 
 Pickett V. Leonard, 34 N. Y., 175. New promise. 
 Followed, Smith v. Ryan, 39 N. Y. Supr., 489. 
 
 Pierce v. Schenck, 3 Hill, 28, Conditional sale. 
 Approved, Hasbrouck v. Bouton, 41 How., 
 208 ; 60 Barb., 413. 
 
 V. Van Dyke, 6 Hill, 613. Demand before 
 
 suit. Approved, Talcott v. Belding, 46 How., 
 
 419 ; 36 N. Y. Supr., 84. 
 Pien-epont v. Barnard, 6 N. Y., 279. Waiver of 
 
 condition. Approved, Carroll v. Charier Oak 
 
 Ins. Co., 10 Abb. N. S., 165. 
 Picknev v. Hegemann, 4 Lans., 374. Affirmed, 
 
 53 N. Y., 31. 
 Pindar v. Continental Ins. Co., 38 N. Y., 366. In- 
 surance. Distinguished, Reynolds v. Commerce 
 
 F. Ins. Co., 47 N. Y., 597. 
 
 Pinneo v. Higgins, 12 Abb. N. S., 334. Composi- 
 tion with creditors. Approved, Gilmour v. 
 Thompson, 49 Hbw., 198. 
 
 Pinney v. Gleason, 6 Wend., 593. Damages on 
 contract not payable in money. Followed, 
 Pusey V. New Jersey West Line R. R. Co., 14 
 Abb. N. S., 434. 
 
 Piper V. New York Cent, and Hud. Riv. R. R. Co., 
 IN. Y., 290. Switch. Followed, <Sa/ters v. Z»e<. 
 and Hud. Canal Co., 3 Hun, 338. 
 
 Pistor V. Brundrelt, 42 How., 5 ; S. C, sub nam, 
 Pistor V. Hatfield, 46 N. Y., 249. 
 
 Pitcher v. Plankroad Co., 10 Barb., 436. Action. 
 Distinguished, Taplin v. Wilson, 4 Hun, 244. 
 
 PiU V. Davison, 37 N. Y., 235. Appeal. Dis- 
 tinguished, Brinkley v. Brinkley, 47 N. Y., 40. 
 
 Pitts V. Pills, 44 How., 64, 300 ; 64 Barb., 482 ; 
 
 13 Abb. N. S., 272. Affirmed, 52 N. Y., 593 ; 
 
 14 Abb. N. S., 97 ; 45 How., 45. 
 
 Place V. Mcllvain, 1 Daly, 266 ; 38 N. Y., 96. 
 
 Discharge of indorser. Followed, Eisner v. 
 
 Keller, 3 Daly, 485 
 Piatt V. Coman, 37 N. Y., 440. Suspension of 
 
 right of action. Held obiter, Cary v. White, 52 
 
 N. Y., 138. 
 Plumb V. Cattaraugus Mut. Ins. Co., 18 N. Y., 393. 
 
 Estoppel. Followed, Finnegan v. Caroter, 47 
 
 N. Y., 493. Insurance* Distinguished, Baker 
 
 V. Home Life Ins. Co., 2 Hun, 402. 
 Pond V. Curtiss, 7 Wend., 45. Lease by guar- 
 dian. Approved, Thacker v. Henderson, 63 
 
 Barb., 271. 
 Poor V. Bowen, 1 Hun, 122. Affirmed, 60 N. Y., 
 
 626. 
 
 Pope V. Bank of Albion, 59 Barb., 226. Revers- 
 ed, 57 N. Y., 126. 
 
 V. Cole, 64 Barb., 406. Affirmed, 55 N. Y., 
 
 124. 
 
 Poller V. Parmley, 43 How., 445 ; 34 N. Y. Supr., 
 398 ; 13 Abb. N. S., 104. Reversed, 14 Abb. 
 N. S., 16 ; 52 N. Y., 185. 
 
 V. Pillsbury, 11 How., 240. Public officer. 
 
 who is. Approved, People v. Tweed, 13 Abb. 
 N. S., 419. 
 Post V. .Xlna Ins. Co., 43 Barb., 351. Parol in- 
 surance. Approved, Ellis v. Albany City F. 
 Ins. Co., 4 Lans., 433 ; 50 N. Y., 402. 
 
 v. Doremus, 1 Hun, 521. Modified, 60 N. 
 
 Y., 371. 
 
xliv 
 
 CASES CRITICISED. 
 
 Potter V. Whittaker, 27 How., 10. Notice of ap- 
 peal. Approved, Avery v. Woodbedc, 6 Lane., 
 498 ; 62 Barb., 557. 
 
 Poucher r. Livingston, 2 Wend., 296. Special 
 jury. Followed, PeopZe v.McGuire, 4Z How., 
 67. 
 
 Poughkeepsie ^ Salt Pt. R. R. Co. v. Griffin, 24 
 N. Y., 150. Subscription. Followed, Dorris 
 T. Sweeny, 64 Barb., 636. 
 
 Powell V. Tuttle, 3 N. Y., 402. Setting aside sale. 
 Approved, Kellogg v. Howell, 62 Barb., 280. 
 
 Powers V. Shepard, 49 Barb., 419 ; 35 How., 53. 
 Affirmed, 48 N. Y., 540. 
 
 Pratt V. Allen, 19 How., 450. Costs. Disap- 
 proved, Bernhard v. Kapp, 11 Abb. N. S., 342. 
 
 V. Chase, 29 How., 296 ; 19 Abb., 150. 
 
 Reversed, 44 N. Y., 597. 
 
 V. New itork Central Ins. Co., 64 Barb., 
 
 589. Affirmed, 55 N, Y., 505. 
 
 Presby. Cong, of Salem v. Williams, 9 Wend. 
 147. Estoppel. Followed, Finnegan v, Caraher, 
 61 Barb., 252. 
 
 Prevot V. Lawrence, 51 N. Y., 219. Married wo- 
 man, liable for rent. Followed, Westervek v. 
 Ackley, 2 Hun, 258. 
 
 Price V. Hartshorn, 44 Barb., 655. Affirmed, 44 
 N. Y., 94. 
 
 V. Oswego and Syracuse Ry. Co., 58 Barb., 
 
 599. Keversed, 50 N. Y., 213. 
 
 V. Powell, 3 N. Y., 322. Declarations 
 
 of agent. Followed, Matteson v. New York 
 Cent. R. R. Co., 62 Barb., 364. 
 
 Pringle v. Chambers, 1 Abb., 58. Alteration, 
 burden of proof. Approved, O'Donnetl v. Har- 
 mon, 3 Daly, 424. 
 
 Prat. Epis. Pub. School, In matter of, 40 How., 
 139 ; 58 Barb., 161. Keversed, 46 N. Y., 178. 
 
 V. , 40 How., 198. Affirmed, 49 N. Y., 
 
 656. 
 
 Prauty v. Swift, 51 N. Y., 601. Pleading. Ap- 
 proved, Church of the Redeemer v. Craviford, 36 
 N. Y. Supr., 307. 
 
 Pugsley v. Aiken, 11 N. Y., 494. Action against 
 executors. Distinguished, Austin v. Munro, 47 
 N. Y., 360. Lease. Distinguished, Gibbons v. 
 Dayton, 4 Hun, 451. 
 
 V. Murray, 4 E. D. Smith, 245. Broker. 
 
 Followed, Roiiie v. Stevens, 35 N. Y. Supr., 189. 
 
 Pullman v. Mayor, etc., 54 Barb., 16. Local act. 
 Distinguished, People v. Davis, 61 Barb., 456. 
 
 Pulver V. Harris, 62 Barb., 500. Affirmed, 52 N. 
 Y., 73. 
 
 Pumpelly v. Phelps, 40 N. Y., 60. Damages. 
 Distinguished, Margrafy.Muir,57Ti. Y,, 155. 
 Contract. Distinguished, Bellinger v. Bentley, 
 1 Hun, 512. 
 
 Purchase v. Matteson, 25 N. Y., 211. Waiver. 
 Distinguished, Byrnes v. City of Cohoes, 5 Hun, 
 602, 
 
 Putnam v. Health, 41 How., 262. Specification 
 in notice of appeal. Followed, Moran v. Mc- 
 Clurns, 43 How., 77 ; Wadley v. Davis, id., 82. 
 - V. Hubbell, 42 N. Y., 106. Appeal, finding 
 
 without evidence. Followed, Root v. Great 
 Western R. R. Co., 45 N. Y., 524. ^ 
 
 ■ V. Ritchie, 6 'Paige, 390. Improvements, 
 
 allowance for. Distinguished, Scott v. Guern- 
 sey, 48 ST. Y., 106. 
 Quimby v. VqnderbiU, 17 N. Y., 306. Carrier, lia- 
 bility of, beyond line of its road. Distinguished, 
 
 Milnor V. N. Y. andN. H. R R. Co., 58 N. Y., 
 863. 
 Quinn v. Lloyd, 41 N. Y., 352. Mitigation of 
 damages. Distinguished, Wehle v. Saviland, 
 42 How., 399 ; 4 Daly, 550. Objection to wit- 
 ness, when to be taken. Approved, People v. 
 Sanders, 3 Hun, 16. 
 
 V. Mayor, etc. of New York, 44 How., 266. 
 
 Board of apportionment, power of. Followed, 
 Landon v. Mayor, etc., 89 N. Y. Supr., 467 ; 49 
 How., 218. Clerks of district courts. Follow- 
 ed, Whitmore v. Mayor, etc., 5 Hun, 195. 
 
 V. Van Pelt, 36 N. Y. Supr., 279. Re- 
 
 versed, 56 N. Y., 417. 
 
 Radeliffr. Mayor, etc. of New York, 4 N. Y., 195. 
 Liability of municiijal corporation. Distin- 
 guished, Donahue v. Mayor, etc. of New York, 8 
 Daly, 65. 
 
 Radway v. Graham, 4 Abb., 468. Waiver of ap- 
 peal. Followed, Taussig v. Hart, 33 N. Y. 
 Supr., 157. 
 
 Ramalay v. Leland, 6 Rob., 358. Affirmed in 
 part. 43 N. Y., 539. 
 
 Randall v. Parker, 3 Sandf., 69. Burden of 
 proof. Followed, Jones v. O'Brien, 36 N. Y. 
 Supr., 68. 
 
 V. Smith, 1 Den. 214. School district 
 
 assessment. Distinguished, Jewell v. Fbn Steen- 
 burgh, 58 N. Y., 85. 
 
 ■ V. Van Veckten, 19 Johns., 60. Contract. 
 
 Approved, Bellinger v. Bentley, 1 Hun, 562. 
 
 Ransom v. New York and Erie R. R. Co., 15 N. Y., 
 415. Damages. Followed, Matteson v. N. Y. 
 Cent. R. R. Co., 62 Barb., 364. 
 
 Rapalye v. Rapalye, 27 Barb., 610. Specific be- 
 quest. Followed, Smith v. Fan Nostrartd, 3 
 Hun, 450. 
 
 Rapelye v. Price, 4 HiU, 119. Motion for new 
 trial. Followed, Luddington v. Miller, 36 N. 
 Y. Supr., 1. 
 
 Rasquin v. Knick. Stage' Co., 12 Abb., 324. At- 
 torney's lien. Overruled, Pulver v. Hatris, 62 
 Barb., 500. 
 
 Rathbone v. Tucker, 15 Wend., 498. Principal's 
 liability. Approved, Maryland Coal Co. v. 
 Edwards, 4 Hun, 432. 
 
 Rawls V. Deshler, 3 Keyes, 572. Delivery order. 
 
 Distinguished, Mechanics and Traders Bank T. 
 
 Far. and Meehs. Bank, 60 N. Y., 40. 
 Rawson V. Penn. Jt. R. Co., 2 Abb. N. S., 220. 
 
 Affirmed, 48 N. Y., 212. 
 Raymond v. Barnard, 12 Johns., 274. Rescission 
 
 of contract. Followed, Fullager v. Reville, 3 
 
 Hun, 600. 
 
 Raynor v. Selmes, 7 Lans., 440. Reversed, 52 N. 
 Y., 579. 
 
 V. Timers'on, 51 Barb., 517. Affirmed, 54 
 
 N. Y., 639. 
 
 Read V. French, 28 N. Y., 295. Judgment, valid- 
 ity of. Followed, Tralan y. Pagan, 48 How. 
 242.- 
 
 V. President, etc. of Del. and H. Canal 
 
 Co., 3 Lans., 218. Reversed, 49 N. Y., 652. 
 ; y. Spauldmg, 30 N. Y., 630. Carrier's 
 
 liability. Approved, Candid v. Grand Trunk 
 Railway Co., 54 N. Y., 500. 
 Reade v. Livingston, 8 Johns. Ch., 481. Decree 
 in creditor's suit. Followed, Dawleu v. Brown. 
 65 Barb., 107. 
 
 V. Waterhouse, 12 Abb. N. S., 255. Affirm- 
 
CASES CRITICISED. 
 
 xlv 
 
 ed. 35 N. T. Supr., 78; but Reversed, 52 N. Y., 
 587. 
 
 Rector, etc. of Trinity Church v. Higgins, 4 Bob., 
 872. Reversed, 48 N. Y., 532. 
 
 V. , 48 N. Y., 532, Covenant. Ex- 
 plained, Reading v. Gray, 37 N. Y. Supr., 79. 
 Followed, Giles v Austin, 38 id., 215. 
 
 Redmond -v. noge,Z Hun, 171. Beargument de- 
 nied, 4 id., 76. 
 
 V. Liv., N. Y. and P. S. Co., 56 Barb., 320. 
 
 Bevfersed, 46 N. Y., 578. 
 
 V. , 46 N. Y., 578. Carrier's lia- 
 bility. Followed, Gleadell v. Thomson, 85 N. 
 Y. Supr., 232 : McAndrew v. Whitlock, 52 N. 
 Y., 40. 
 
 Redpath v. Vaughan. 52 Barb., 489. Affirmed, 
 
 48 N. Y., 655. 
 Reed v. Farr, 36 N. Y., 113. Title by practical 
 
 location. Followed, Cramer v. /ienion, 64 Barb., 
 
 622. 
 
 V. Gannon, 3 Daly, 414. Beversed, 50 N. 
 
 Y., 345. 
 
 • V. Keese, 37 N. Y. Supr., 269. Affirmed, 
 
 60 N. Y., 616 
 
 • V. New York Cent. R R. Co., 56 Barb., 
 
 493. Beversed, 45 N. Y., 574. 
 V. People, 42 N. Y., 270. Cross-examina- 
 tion. Followed, Russell v. St. Nicholas Fire 
 Ins. Co., 51 N. Y., 643. 
 
 • V. Randall, 29 N. Y., 358. Sale. Follow- 
 
 ed, Holden V. Clancy, 41 How., 1 ; Newbury 
 V. Wall, 35 N. Y. Supr., 106 ; Neaffie v. Hart, 
 4 Laos., 4. Distinguislied, Stone v. Frost, 6 
 Lans., 440 ; Dounce v. Dow, 57 N. Y., 16 ; Wells 
 V. Selwood, 61 Barb., 238. Explained, Day v. 
 Pool, 63 Barb., 506 ; 52 N. Y., 416. 
 
 Remsen v. BeeJcman, 25 N. Y., 552. Discharge of 
 surety. Approved, Field v. Cutler, 4 Lane., 195. 
 
 V. Brinkerhoff, 26 "Wend., 325. Will, sig- 
 nature to. Followed, Heady's Will, 15 Abb. 
 N.S., 211. 
 
 Rensselaer and Sar. R. R. Co. v. Davis, 43 N. Y., 
 137. Appeal. Followed, In matter of Commis- 
 sioners of Central Park, etc., 4 Lans., 467 ; 61 
 Barb., 40. Approved, Matter ■ of widening 
 Broadway, 42 How., 220 ; 61 Barb., 483. Dis- 
 tinguished, Matter of Commissioners of Central 
 Park, 50 N. Y., 493. Appropriation of lands. 
 Followed, Wallkill Valley R. R. Co., v. Norton, 
 12 Abb- N. S., 317. Power, limitation of. Ap- 
 proved, Hoefi V. Seaman, 46 How., 24. 
 
 V. , 55 N. Y., 145. Costs. Followed, 
 
 Matter of Syracuse, etc. R. R. Co., 4 Hun, 311. 
 
 Renton v. Kelly, 49 Barb., 536. Affirmed, 51 N. Y., 
 633. 
 
 Repplier v. Bloodgood, 1 Sweeny, 34. Discharge 
 in bankruptcy. Disapproved, Bimsfer, In re, 
 41 How., 406. 
 
 Rexford v. Widger, 2 N. Y., 131. Actions: Dis- 
 tinguished, Anderson v. Munn, 5 Hun, 79. 
 
 Remolds v. New York Cent. R. R. Co., 58 N. Y., 
 249. Negligence. Followed, Thurber v. Har- 
 lem Br. M. and F. R. R. Co., 60 N. Y., 826. 
 
 Rice V. Ehle, 46 How., 153 ; 65 Barb., 185. Re- 
 versed, 55 N. Y., 518. 
 
 Richards v. Edick, 17 Barb., 263. Coastruction 
 of contract. Approved, Baldwin v. Humphrey, 
 44 N. Y., 609; 17 Barb., 260. Damages for 
 failure to complete purchase. Approved, Con- 
 gregation Beth. Elohim v. Central Presb. Church, 
 10 Abb. N. S., 484. 
 
 Richardson v. Carpenter, 2 Sweeny, 360. Re- 
 versed, 46 N. Y. 660. 
 
 V. Crandall, 47 Barb., 335. Affirmed, 48 
 
 N. Y., 348. . 
 
 ■ V. Gere, 21 Wend., 156. Deposition. 
 
 Distinguished, Goodyear v. Vosburgh, 41 How., 
 421. 
 
 • V. Kropf, 47 How., 634. Affirmed, 60 N. 
 
 Y., 634. 
 
 ■ V. Northrup, 56 Barb., 109. Mitigation of 
 
 damages. Followed, Dolan v. Fagam, 63 Barb., 
 73. 
 
 V. Sharpe, 29 Barb., 222. Sale by trustees. 
 
 Approved, Griswold v. Peiry, 7 Lans., 98. 
 
 Ricketts V. Bak. and Ohio R. R. Co., 4 Lans., 446. 
 Affirmed, 59 N. Y., 636. 
 
 Rider v. Stri/ker, 2 Hun, 115. Beargument de- 
 nied, 8 Hiin, 621. 
 
 Riley V. Brooklyn, City of, 56 Barb., 559. Bevers- 
 ed, 46 N. Y., 444. 
 
 Ring V. Whiteley, 10 Paige, 465. Action on pro- 
 mise to third party. Distinguished and Ex- 
 plained, Thorp V. Keokuk Coal Co., 48 N. Y., 
 253. 
 
 Ripley v. JEtna Ins. Co., 30 N. Y., 136. Waiver 
 oi condition. Followed, Underwood v. Farmers 
 Joint Stock Ins. Co., 48 How., 367 ; 67 N. Y., 
 500. Held obiter, Dohn v. Farmers J. S. Ins. 
 Co., 5 Lans., 275. 
 
 Ritlenhouse v. Independent Line of Telegraph, 1 
 Daly, 474. Affirmed, 44 N. Y., 263. 
 
 Riverside Park, Matter of, 61 Barb., 40. Appeal. 
 
 Approved, Matter of Kingsbridge Road, 4 Hun, 
 
 599. 
 Roach V. La Farge, 43 Barb., 616. Supplemental 
 
 complaint. Overruled. Beach v. Reynolds, 64 
 
 Barb., 506. 
 Robbins v. Mount, 4 Rob., 565. Negligence of 
 
 tenant. Followed, Kaiser v. Hirth, 46 How., 
 
 161. 
 Roberts v. Clark, 10 How .,"451. Costs. Approved, 
 
 Bernhard v. Kapp, 11 Abb. N. S. 342. 
 
 V. Fisher, 63 Barb., 69. Reversed, 43 N. 
 
 Y., 169. 
 
 • V. Johnson, 37 N. Y. Supr., 167. Affirmed, 
 
 58 N. Y., 613. 
 
 • V. Prosser, 4 Lans., 369. Reversed, 53 N. 
 
 Y., 260. 
 
 ■ V. Roberts, 7 Lans., 55. Affirmed, 55 N. 
 
 Y., 275. 
 
 ■ V. Sykes, 30 Barb., 173 ; 8 Abb., 346. Ac- 
 
 tion to redeem. Approved, Miner v. Beekman, 
 11 Abb. N. S., 147; 42 How., 33; 33 N. Y. 
 Supr., 67. — 
 
 Robertson v. Bullions, 9 Barb., 64 ; 11 N. Y., 243. 
 Religious corporations. Followed, Watkins v. 
 Wilcox, 4 Hun, 220. Approved, Connitt v. 
 Reformed Prot. Dutch Ch., etc., 4 Lans., 339 ; 64 
 N. Y., 551. Control of chancery over. Ap- 
 proved, Fisher v. World Mut. Life Ins. Co., 47 
 How., 451. 
 
 V. Vaughan, 5 Lans., 1. Statute of frauds. 
 
 Disapproved, Passaic Manuf. Co. v. Hoffman, 
 3 Daly, 495. 
 Robinson v. Bank of Attica, 21 N. Y., 406. Trans- 
 fer by insolvent corporation. Distinguished, 
 Dutcher v. Importers and Traders National Bank, 
 59 N. Y., 5. 
 
 V. Chamberlain, 34 N. Y., 389. Negligence- 
 
 Followed, Day V. Grossman, 1 Hun, 570. Ap. 
 proved. Hover v. Barkhoof, 44 N. Y., 113. Lia- 
 
xlvi 
 
 OASES CRITICISED. 
 
 bility of canal contractor. Followed, French 
 
 V. Donaldson, 5 Lans., 293. 
 Robinson v. International Life Ass. Soc'g., 42 N. Y., 
 
 54. Contract when suspended by war. Held 
 
 obiter, Marline v. Same, 53 N. Y., 339. Payment 
 
 followed, Martine v. Same, 5 Lans., 535; 62 
 
 Barb., 181. 
 V. Phillips, 65 Barb., 418. AflSrmed, 56 
 
 N. Y., 634. 
 
 - T. Plimpton, 25 N. Y., 484. Undertaking 
 
 on appeal. Followed, Richardson v. Kropf, 47 
 How., 286. Explained, Hinckley v. Kreitz, 68 
 N. Y., 583. 
 
 V. Ryan, 25 N. Y., 320. Judgment in 
 
 foreclosure. Followed, Collin v. Orissler, 57 
 N. Y., 363. 
 
 V. Stewart, 10 N. Y., 189. Pleading, 
 
 Approved, Scojield v. Whilelegge, 12 Abb. N. 
 
 S., 320. 
 Rochester City Bank v. Rapelye, 12 How., 26. 
 
 Costs. Approved, Bernhard v. Kapp, 11 Abb. 
 
 N. S., S42. 
 Rochester, Town of, v. Rondout and Oswego R. R. 
 
 Co., 43 How., 144 ; 12 Abb. N. S., 276. Power 
 
 of county judge. Approved, Town of Roches- 
 ter T. Davis, 12 Abb. N. S., 270. 
 Rochester White Lead Co. v. City of Rochester, 3 
 
 N. Y., 463. Negligence. Followed, Nims y. 
 
 Mayor, etc. of Troy, 59 N. Y., 500. 
 Rockford, etc. R. R. Co. v. Boody, 56 N. Y., 456. 
 
 Simultaneous remedies. Distinguished, People 
 
 V. Tweed, 5 Hun, 382. 
 Rockwell v. Brown, 42 How., 226 ; 11 Abb. N. S., 
 
 400 ; 33 N. Y. Supr., 380. Reversed, 54 N. Y., 
 
 210. 
 
 ■ V. Merwin, 8 Abb. N. S., 330 ; 1 Sweeny, 
 
 454. Affirmed, 45 N. Y., 166. 
 
 V. Nearing, 35 N. Y., 302. Distraining 
 
 animals. Approved, Squares v. Campbell, 41 
 How., 193 ; 60 Barb., 391. 
 
 Rodgers v. Bonner, 55 Barb., 9. Affirmed, 45 N. 
 Y., 379. 
 
 v. Phillips, 40 N. Y., 519. Sale, accept- 
 ance. Followed, Cooie V. if i7tod, 5 Lans., 243. 
 
 Rogers v. Jones, 1 Wend., 237. Bights of fishery. 
 Followed, Brookhaven, Trustees of, v. Strong, 60 
 N. Y., 56. 
 
 V. Mulliner, 6 Wend., 597. False impris- 
 onment. Followed, Harrison v. Clark, 4 Hun, 
 685; Field v. Parker, id. 342. 
 
 V. Rogers, 3 Wend., 603. Payment of 
 
 debts. Followed, Nagle v. McGinnis, 49 How., 
 193. 
 
 ■ V. Plainer, 8 Johns., 119. Guaranty. Dis- 
 
 tinguished, Crist V. Burlingame, 62 Barb., 351. 
 ■ V. Wheeler, 6 Lans., 420. Affirmed, 52 N. 
 
 Y., 202. 
 
 Romaine v. Van Allen, 26 N. Y., 309. Damages. 
 Followed, Lobdellv. Stowell, 51 N. Y., 70. 
 
 Romerlze v. East Riv. National Bank, 2 Sweeny, 
 82. Reversed, 49 N. Y., 577. 
 
 Rood V. N. Y. and Erie R. R. 'Co., 18 Barb., 80. 
 Conveyance to railroad company. Distin- 
 guished, Ludlow V. Hudson Riv. R. R. Co., 6 
 Lans., 128. 
 
 Roosevelt v. Draper, 23 N. Y., 318. Action 
 against municipal corporation. Followed, 
 Phelps V. Cily of Watertown, 61 Barb., 121. 
 Injunction. Followed, TiJ^ v. City of Buffalo, 
 65 Barb., 460. Approved, Burch v. Cavanaugh, 
 12 Abb. N. S., 410. 
 
 Root T. Great Western R. R. Co., 2 Lans., 199. 
 Reversed, 45 N. Y., 524. 
 
 -, 65 Barb., 619. Affirmed, 55 N. 
 
 Y., 636. 
 
 V. Lowndes, 6 Hill, 518. Evidence in 
 
 slander. Followed, Bassil v. Elmore, 65 Barb., 
 627. 
 
 Rosa V. Butterfidd, 83 N. Y., 665. Defense of 
 usury. Followed, Smith v. Alvord, 63 Barb., 
 416. Graves v. Lmdl, 38 N. Y. Supr., 154. 
 
 Rose V. Clark, 8 Paige, 573. Evidence of mar- 
 riage. Approved, Wright v. Wright, 48 
 How., 1. 
 
 Ross V. Curtiss, 31 N. Y., 606. Mandamus. Fol- 
 lowed, Healey v. Dudley, 5 Lans., 115. 
 
 V. Mather, 47 Barb., 582. Reversed, 51 
 
 N. Y., 108. 
 
 V. , 51 N. Y., 108. Pleading. 
 
 Approved, Berrian v. Mayor, etc. of New York, 
 15 Abb. N. S., 207. Variance. Followed, Peck 
 V. Root, 5 Hun, 547. Dudley v. Scranton, 57 N. 
 Y., 424. 
 
 ■ V. Whitefield, 36 N. Y. Supr., 50. Affirm- 
 
 ed, 56 N. Y., 640. 
 
 Roth V. Wells, 29 N. Y, 489. Execution. Distin- 
 guished, Hathaway v. Howell, 54 N. Y., 97. 
 
 Rouse V. WhUed, 25 N. Y., 173. Whole of con- 
 versation. Followed, Sturm v. Williams, 88 
 N. Y. Supr., 325. 
 
 Rowan v. Kelly, 18 Barb., 488. Ejectment. 
 Approved, Kurkel v. Haley, 47 How., 75. 
 
 Rowe V. Stevens, 12 Abb. N. S., 389. Appeal 
 questions. Followed, St. John v. Skinner, 44 
 How., 198. Approved, Hamilton y. Third Ave. 
 R. R. Co., 44 How., 294 ; 13 Abb. N. S., 318 ; 
 35 N. Y. Supr., 118. , 
 
 ., 35 N. Y. Supr., 189. Affirmed, 
 
 53 N. Y., 621. Broker. Followed, Spyer v. 
 ftsAer, 37N.Y. Supr.,93. 
 
 Rowland v. Hegeman, 1 Hun, 491. Affirmed, 59 
 N. Y., 643. 
 
 Rowley V. Empire Ins. Co., 36 N. Y., 550. Insur- 
 ance. Distinguished, Baker v. Home Life Ins. 
 Co., 2 Hun, 402. LeRoy v. Market F. Ins. Co,, 
 45 N. Y., 80. 
 
 Ruggles v. Chapman, 1 Hun, 324. Affirmed, 59 
 N. Y., 163. . 
 
 Ruld V. Phillips, 2 Daly, 46. Reversed, 48 N. Y., 
 125. 
 
 Ruloff's case, 18 N. Y., 179. Murder. Distin- 
 guished, People V. Bennett, 49 N. Y., 137. 
 
 Ruloff V. People, 6 Lans., 261. Affirmed, 11 
 Abb. N. S., 245 ; 45 N. Y., 213. 
 
 Rundell v. Lakey, 40 N. Y., 513. Lien of assess- 
 ments. Distinguislied, De Peyster v. Murphy, 
 39 N. Y. Supr., 255. 
 
 Rundle V. Allison, 34 N. Y., 180, Limitation of 
 actions. Distinguished, Salisbury v. Morss, 7 
 Lans., 359. 
 
 Rwisell V. Carringlon, 42 N. Y., 118. Sale. Dis- 
 tinguished, Higgins v. Del., Lack, and W. R. R 
 Co., 60 N. Y., 652. 
 
 V. Hudson Riv. R. R. Co., 17 N. Y., 134. 
 
 Books as evidence. Approved, Krom v. Levy, 
 47 How., 97. Memorandum. Followed, Driggs 
 V. Smit/i, 45 How., 447 ; 36 N. Y. Supr., 283. 
 Thurman v. Mosher, 1 Hun, 344. 
 
 ■ v. Nicoll, 3 Wend., 112. Entire contract. 
 
 Approved, Kein v. Tupper, 43, How., 437 ; 33 
 N. Y. Supr., 465. 
 
CASES CRITICISED. 
 
 xlvii 
 
 Russell y. Roberts, 3 E. D. Smith, 118. Damages. 
 Approved, Greer v. Tweed, 18 Abb. N. S., &7. 
 
 T. Scudder, 42 Barb., 31. Bona fide 
 
 holder. Approved, Muller v. Pondir, 6 Lans., 
 472. 
 
 r. PTinne, 37 N. T., 591. Chattel mort- 
 gage. Followed, Smith v. Post, 1 Hun, 616. 
 
 Rust V. Eckler, 41 N. Y., 488. Warranty. Fol- 
 lowed, Lawton v. Keil, 61 Barb., 558. 
 
 Regan v. Dox, 34 N. Y., 307. Parol evidence. 
 Followed, Church v. Kidd, 3 Hun, 254. 
 
 V. Dmle, 40 How., 215. Costs. Distin- 
 guished, Lultgor v. Walters, 64 Barb., 417. 
 ■ V. New York Cent. R. R. Co., 35 N. Y."; 210. 
 
 Action. Distinguished, Munger v. Baker, 65 
 Barb., 639. 
 
 ■ V. Ward, 48 N. Y., 204. Accord and satis- 
 
 faction. Followed, Williams v. Irving, 47 How., 
 440. 
 
 Ryckman v. Gillis, 6 Lans., 79. Reversed,, 57 
 N: Y.J 68. 
 
 Salisburg's case, 3 Johns. Ch., 349. Care of luna- 
 tics. Approved, Parses Merchant's case, 11 
 Abb. N. S., 209 ; 3 Daly, 529. 
 
 Salisbury v. Morss, 7 Lans., 359. Affirmed, 55 
 N. Y., 675. 
 
 Saltus V. Everett, 20 Wend., 282. Sale by one 
 without title. Approved, Roberts v. Dillon, 3 
 Daly, 50. 
 
 V. Ocean Ins. Co., 14 Johns., 138. Marine 
 
 insurance. Distinguished, Wa,lleratein v. Col- 
 umbian Ins. Co.. 44 N. Y., 204. 
 
 V. Saltus, 2 Lans., 9. Attachment by sur- 
 rogate. Approved, Timpson's Estate, 15 Abb. 
 N. S., 230. 
 
 Sanders v. Bacon, 8 Johns., 485. Alteration of 
 note. Distinguished and explained, Benedict 
 .. CoM>rfen, 49 N. Y., 396. 
 
 Sandford v. Eighth Ave. R. R. Co., 23 N. Y., 343. 
 Master's liability. Approved, Higgins v. Water- 
 vliet Turnpike Co., 46 N. Y., 23. 
 
 V. White, 46 How., 205. Affirmed, 56 
 
 N. Y., 359. 
 
 Sands V. Codwise, 4 Johns., 536. Decree for sale 
 by master. Followed, Dawley v. Brown, 65 
 Barb.. 107. 
 
 y. Crook, 46 N. Y., 564. Appeal from 
 
 order granting new trial. Followed, Dickson 
 V. Broadway and Seventh Ave, R. R. Co., 47 
 N. Y., 507. 
 
 V. Hughes, 53 N. Y., 287. Adverse posses- 
 sion. Distinguished, Bedell r. Shaw, 59 N. Y., 
 46. 
 
 ■ V. New York Life Ins. Co., 59 Barb., 556. 
 
 Affirmed, 50 N. Y., 626. 
 
 ■ V. Roberts, 8 Abb., 343. Injunction, what 
 
 property affected. Disapproved, Atkinson v. 
 Sewine, 43 How., 84 ; 11 Abb. N. S., 384. 
 
 Sanquirico v. Benedetti, 1 Barb., 315. Injunction. 
 Distinguished, Daly v. Smith, 38 N. Y. Supr., 
 168. 
 
 Saratoga County Bank v. King, 44 N. Y., 87. 
 Illegal contracts. Followed, Knmolton v. Con- 
 gress and Empire Spring Co., 57 N. Y., 618. 
 Distinguished, Arnot v. Pittston and ElmiraCoal 
 Co., 2 Hun, 593. 
 
 Savacool v. Boughton, 5 Wend., 170. Officer pro- 
 tected by process. Followed, Smith v. Warden, 
 4 Hun, 787. Criticised, Field v. Parker, id., 
 342. 
 
 Savage v. Allen, 59 Barb., 291. Affirmed, 54 
 N. Y., 458. 
 
 • v. Burnham, 17 N. Y., 561. Equitable 
 
 conversion, Ross v. Roberts, 2 Hun, 90. Trust. 
 Distinguished, Curtis v. Smith, 60 Barb., 9. 
 ■ V. Howard Ins. Co., 44 How., 40. Re- 
 
 versed, 52 N. Y., 502. 
 
 V. , 52 N. Y, 502. Insurance. Fol- 
 lowed, Miner v. Judson, 2 Hun, 441. For- 
 feiture. Followed, Germond v. Home Ins. Co., 
 2 Hun, 540. 
 
 V. Long Island Ins. Co., 43 How., 462. 
 
 Affirmed, 44 How., 40. 
 
 ■ V. O'Neil, 42 Barb., 874. Reversed, 44 
 
 N. Y., 208. 
 
 -, 44 If. Y., 208. Title from wife. 
 Approved, Sheldon v. Clancy, 42 How., 186 ; 
 61 Barb., 476. 
 
 Saxton V. Dodge, 67 Barb., 84. Invalidity of pa- 
 tent as a defense^ Followed, Hawks v, Swett, 
 4 Hun, 146 ; Marston v. Swett, id., 163. 
 
 Schaettler v. Gardiner, 41 How., 243. Appeal 
 dismissed, 47 N. Y. 404. 
 
 Scha finer v. Renter, 37 Barb., 44. Conveyance to 
 wife. Distinguished, Briggs v. Mitchell, 60 
 Barb., 288. 
 
 Schell V. Erie Railway Co., 61 Barb., 368. In- 
 junction to restrain suit. Overruled, Erie Rail- 
 way Co. V. Ramsey, 45 N. Y., 637. 
 
 V. Plmnb, 46 How., 11. Affirmed, 65 N. Y., 
 
 692. 
 
 Schenck v. Andrews, 46 N. Y., 589. Stockholder's 
 liability. Limited and distinguished, Schenck 
 V. Andrews, 57 N. Y., 133. 
 
 Schepp V. Carpenter, 49 Barb., 542. Affirmed, 
 51 N. Y., 602. Accommodation note. Dis- 
 tinguished, Philbrick v. Dallett, 43 How., 419 ; 
 12 Abb. N. S., 419 ; 34 N. Y. Supr., 370. 
 
 Schermerhom v. Barhydt, 9 Paige, 28. Action 
 against heirs and devisees. Followed, Rock- 
 wells. Geery, 4 Hun, 606. 
 
 Y.Hull, 13 Johns., 270. Pauper. Fol- 
 
 lowed, People ex rel. Wehle v. Weissenback, 60 
 N. Y., 385. Binding out poor children. Ap- 
 proved, People ex rel. Heilbronner v. Hosier, 14 
 Abb. N. S., 414. 
 
 ■ V. Tallman, 14 N. Y., 93. Cloud on title. 
 
 Followed, Bissell v. Kellogg, 60 Barb., 617. 
 
 Schoenwald v. Met. Savings Bank, 33 N. Y. Supr., 
 397, 440. Reversed, 5^ N. Y., 418. 
 
 Sehojield v. Hernandez, 47 N. Y., 313. Practice. 
 
 • Distinguished, Brookman v. Wandle, £0 N. Y., 
 378. 
 
 Schroeder v. Hudson Riv. R. R. Co., 5 Duer, 55. 
 Carrier's liability. Distinguished, Wait v. Al- 
 bany and Susquehanna R. R. Co., 5 Lans., 473. 
 
 Schroeppel v. Coming, 5 Den., 239. Possession 
 of security for usurious loan, tortious. Fol- 
 lowed, Wheelock v. Lee, 16 Abb. N. S., 24. 
 
 Schuchardt v. Mayor, etc. of New York, 59 Barb., 
 295. Sustained, S. C, 62 Barb., 671. Affirmed, 
 53 N. Y., 202. 
 
 Schultz V. Bradley, 4 Daly, 29. Reversed, 67 
 N. Y., 646. 
 
 Schuschard -^Reimer, 1 Daly, 459. Continuance 
 after death of defendant. Explained, Liver- 
 more V. Bainbridge, 43 How., 272 : 61 Barb., 358. 
 
 Schuyler v. Smith, 51 N. Y., 309. Tenant holding 
 over._ Followed, Mack v. Burt, 6 Hun, 28. 
 
 Schwenn v. McKie, 6 Rob., 404. Affirmed, 51 
 
xlviii 
 
 CASES CRITICISED. 
 
 N. Y., 180. Burden of proof. Followed, Cole- 
 man V. Livingston, 36 N. Y. Supr., 32. 
 
 Schwinger v. Hickock, 53 N. Y., 280. Supplement- 
 ary proceedings. Followed, BartlM v. Mc- 
 Neil, 60 N. Y., 53. 
 
 Scofield V. Day, 20 Johns., 102. Damages on for- 
 eign bill. Disapproved, Guiteman v. Davis, 3 
 Daly, 120. Distinguished, Gunther v. Colin, id., 
 126. 
 
 v. Whiteleqge, 10 Abb. N. S., 104 ; 33 N. 
 
 Y. Supr., 179. ■ Affirmed, 12 Abb. N. S., 320 ; 
 49 N. Y., 259. Pleading in replevin. Distin- 
 guished, Treat v. Hathorn, 8 Hun, 646 ; Sim- 
 mons V. Lyons, 35 N. Y. Supr., 554 ; Van Der 
 Minden v. Eisas, 36 N. Y. Supr., 66. Demand 
 before suit. Followed, Talcott v. Belding, 46 
 How., 419 ; 36 N. Y. Supr., 259. 
 
 Scott V. Frink, 52 Barb., 533. Affirmed, 50 N. 
 Y., 635. 
 
 V. Guernsey, 60 Barb., 163. Affirmed, 48 
 
 ST. Y., 106. 
 
 V. Lilienthal, 9 Bosw., 224. Opinion as 
 
 evidence. Followed, Todd v. Warner, 48 
 
 How., 234, 
 
 ■ T. Pilkington, 15 Abb. N. S., 
 
 280. Plead- 
 ing. Approved, Bead v. Lambert, 10 Abb. N. 
 S.,"428. 
 
 V. Rogers, 31 N. Y., 676. Damages. Ap- 
 
 proved, Price V. Keyes, 1 Hun, 177. 
 
 • V. Simmons, 34 How., 66. Nature of ac- 
 
 tion. Approved, Kapp v. Meigs, 11 Abb. N. 
 S., 405. 
 
 Scouton V. Bender, 3 How., 185. Decree in cred- 
 itor's suit. Followed, Dawley v. Brown, 65 
 Barb., 107. 
 
 Scudder v. Gvri, 28 How., 156. Costs. Distin- 
 guished, Muller V. Higgins, 44 How., 224 ; 13 
 Abb. N. S., 297. 
 
 Seaman v. Duryea, 10 Barb., 523. Attachment 
 to enforce surrogate's decree. Approved, 
 Timpson's Estate, 15 Abb. N. S., 230. Distin- 
 guished, In matter of Watson, 5 Lans., 466. 
 
 V. Luce, 23 Barb., 260. Levy on exempt 
 
 property. Approved, Twinam v. Swart, 4 
 Lans., 263. 
 
 Secor V. Sturgis, 16 N. Y., 548. Former adjudi- 
 cation. Disapproved, Moody v. Leverich, 14 
 Abb.N.,S.,145j 4 Daly, 401. 
 
 Sedgwick v. Stanton, 14 N. Y., 289. Contract, 
 validity. Followed, Pease v. Walsh, 89 N. Y. 
 Supr., 514; 49 How., 269. 
 
 Seguine v. Seguine, 3 Abb. N. S., 442. Extra al- 
 lowance. Followed, Dupuy v. Wurts, 47 How., 
 225 ; 1 Hun, 119. 
 
 Seixas v. Wood, 2 Caines, 48. Warranty. Over- 
 ruled, Hawkins v. Pemberton, 44 How., 102 ; 51 
 N. Y., 198. 
 
 Severance v. Griffith, 2 Lans., 88. Mortgagor's 
 personal liability. Approved, Coleman v. Van 
 Jlehsselaer, 44 How., 868. 
 
 Sewall V. Fitch, 8 Cow., 215. Statute of frauds. 
 Followed, Ferren v. O'Hara, 62 Barb., 617. 
 Disapproved, Passaic Manufacturing Co. v. 
 Hoffman, 3 Daly, 495. Contract. Distin- 
 guished, Cooky. Millard, 5 Lans., 243. 
 
 Sexton V. Zett, 66 Barb., 119. Affirmed, 44 N. 
 Y., 430. 
 
 Seybell v. National Currency Bank, 2 Daly, 888 ; 
 I Abb. N. S., 352. Affirmed, 54 N. Y., 288. 
 
 Seymour v. Davis, 2 Sandf., 239. Severable con- 
 tract. Followed, J'almadge v. White, 35 N. 
 Y. Supr., 218. 
 
 Shackletm v. Hart, 2 How., 39. Attorney's Uen. 
 
 Followed, Bawling Green Savings Bank v. 
 
 2'odd, 64 Barb., 146. 
 Shaffer v. Lee, 8 Barb., 412. Action on bond. 
 
 Explained, Turner v. Hadden, 62 Barb., 480. 
 
 Prospective damages. Approved, Schell v. 
 
 Plumb, 46 How., 11. 
 Shaler ^ Hall Quarry Co. v. Bliss, 27 N. Y., 297- 
 
 Trustee, when personally liable. Followed, 
 
 Chandler v. Hoag, 2 Hun, 618; Eeed y. Keese, 
 
 37 N. Y. Supr., 269. 
 Shank v. Shoemaker, 18 N. Y., 489. Attorney's 
 
 lien. Followed, Pulver v. Harris, 62 Barb., 
 - 500. Settlement of suit. Approved, Board 
 
 of Supervisors of Orleans Co. v. Bowen, 4 Lans., 
 
 24. 
 Sharpe v. Freeman, 2 Lans., 171. Affirmed, 45 
 
 N. Y., 802. Receiving evidence conditionally. 
 
 Followed, Berrien y. Sanford, 1 Hun, 625. 
 Shearman v. Niagara Fire Ins. Co., 2 Sweeny, 
 
 470 ; 46 N. Y., 626. 
 Sheldon v. Atlantic Fire Ins. Co., 26 N. Y., 460. 
 
 General exception, effect of. Approved, Stone 
 
 V. Flower, 46 N. Y., 666. Waiver of condition. 
 
 Approved, Carroll v. Charter Oak Ins. Co., 10 
 
 Abb. N. S., 166. 
 
 V. Horton,fiS Barb., 28. Waiver of de- 
 
 mand. Affirmed, 48 N. Y., 98. 
 
 v. Hudson Riv. R. E. Co., 14 N. T., 218. 
 
 Evidence of negligence. Followed, Westfall 
 V. Erie Railway Co., 5 Hun, 75. 
 
 y. Wood, 24 N. Y., 607. Non-joinder. 
 
 Approved, Rhodes y. Dymock, 33 N. Y. Supr., 
 141. 
 
 V. Wright, 7 Barb., 39. Publication, 
 
 what sufficient. Approved, Steinle v. Bell, 12 
 
 Abb. N. S., 171. Jurisdiction of surrogate. 
 
 Followed, Eoderigas v. East Riv. Savings Inst., 
 
 48 How., 166. 
 Shelton V. Merchant's Des. Trans. Co., 36 N. Y. 
 
 Supr., 527. Reversed, 69 N. Y., 258. 
 Shepard' v. O'Neil, 4 Barb., 126. Redemption, 
 
 right of. Explained, Elsworth y. Muldoon, 46 
 
 How., 246 ; 16 Abb. N. S.,.440. 
 
 V. Shepard, 7 Johns., 67. Deed from hus- 
 
 band to wife. Followed, Hunt y, Johnson, 44 
 N. Y., 27. 
 Sheppard v. Hamilton, 29 Barb., 166. EstoppeL 
 Distinguished, McMaster v. Prest., etc. Ins. 
 Co. ofN. America, 56 N. Y., 222. 
 
 V. Steele, 3 Lans., 417. Affirmed, 43 N. 
 
 Y., 62. Liens on ships, etc. Followed, Poole 
 y. Kermit, 37 N. Y. Supr., 114. Constitutional 
 law. Approved, Happy v. Mosher, 48 N. Y., 
 313. 
 
 Sheridan v. Brooklyn and N. R. R. Co., 36 N. Y., 
 39. Negligence. Followed, Gostello y. Syr., 
 Bing. and N. Y. R. R. Co., 65 Barb., 92. Ap- 
 proved, Ward V. Central Park, etc. R. R. Co., 
 42 How., 289 ; 11 Abb. N. S., 411 ; 33 N. Y* 
 Supr., 291. 
 
 Sherman v. WeUs, 14 How., 522. Amendment 
 of notice of appeal. Approved, Mott v. Lan- 
 sing, 6 Lans., 516. 
 
 Sherry v. Schuyler, 2 Hill, 204. Conversion. 
 Approved, Ball v. Liney, 48 N. Y., 6. 
 
 Shindler v. Houston, 1 N. Y., 269. Sale, accept- 
 ance. Approved, Cooke v. Millard, 5 Lans., 
 248. Followed, Ham v. Van Orden, 4 Hun, 
 709. Delivery, Rappelye v. Adee, 65 Barb., 
 589. 
 
 Shippy V. Henderson, 14 Johns., 178. Pleading 
 
CASES CRITICISED. 
 
 xlix 
 
 new promise. Approved, Dusenbury v. Haut, 
 53 N. Y., 521. 
 
 Shoe and Leather Bank y. Thompson, 18 Abb., 413. 
 Action by corporation for libel. Approved, 
 Knickerbocker Life Ins. Co. v. Ecelesine, 42 
 How., 201; 11 Abb. N. S., 385; 84 N. Y. 
 Supr., 76. 
 
 Shufelt V. Bmolev, 4 Cow., 58. Exemplary dam- 
 ages for seduction. Followed, Damon v. 
 Moore, 5 Lans., 454. 
 
 Shuler v. Nelson, 4 Lans., 114. Married woman's 
 liability. Followed, Lennox v. Eldred, 65 
 Barb., 410. 
 
 Shultz V. Whitney, 9 Abb., 71. Affidavit on tax- 
 ation of costs. Approved, Brown v. Windmul- 
 ler, 14 Abb. N. S., 359. 
 
 Shuman v. Strauss, 34 N. Y. Supr., B. Affirmed, 
 52 N. Y.,^04. 
 
 Sickles V. Pattison, 14 Wend., 257. Contract. 
 Followed, Talmadge v. White, 35 N. Y. Supr., 
 218. 
 
 Sieman v. Austin, 38 Barb., 9 ; 29 N. Y., 598. 
 Resulting trust. Followed, Norton v. Mallory, 
 .1 Hun, 499. 
 
 Siemon v. Schurcle, 29 N. Y., 598. Trust. Fol- 
 lowed, Fairchitd v. Fairchild, 5 Hun, 407. 
 
 Sinmr v. Canaday, 53 N. Y., 298, Non-suit. Fol- 
 lowed, Fuller V. Fuller, 5 Hun, 695. 
 
 Simmons v. Cloonan, 2 Lans., 346. Beversed, 47 
 N. Y., 3. 
 
 — V. Lyons, 35 N. Y. Supr., 554. Affirmed, 
 
 55 N. Y., 671. 
 
 ■ V. Sisson, 26 N. Y., 264. Evidence. Fol- 
 
 lowed, Hildebrant v. Crawford, 6 Lans., 502, 
 Simpkins v. Low, 49 Barb., 382. Affirmed, 54 N. 
 
 Y, 179. 
 Sinclair v. TaUmadge, 35 Barb., 602. Perform- 
 ance of contract. Approved, Glacius v. Black, 
 
 SON. Y., 145. 
 Skelton V. Brewster, 8 Johns., 376. Statute of 
 
 frauds. Approved, Schindler v. Euell, 45 How., 
 
 33. 
 Skinner v. Dayton, 19 Johns., 536. Dissolution of 
 
 partnership. Followed, Sistare v. Cushing, 4 
 
 Hun, 503. 
 V. Stuart, 15 Abb., 391. Action on at- 
 tached securities. Overruled, Van Valkenburgh 
 
 V. Bates, 14 Abb. N. S., 314, n. 
 Slauson V. Albany Bailway Co., 1 Hun, 438. Af- 
 firmed, 60 N. Y., 606. 
 Slee V. Bloom, 5 Johns. Ch., 366. jHolding over of 
 
 officers. Followed, Deming v. Puleston, 85 N. 
 
 Y, Supr., 309. 
 Sluyter v. Williams, 1 Sweeny, 215. Demand 
 
 before suit. Approved, Taleott v. Belding, 46 
 
 How., 419 ; 36 N. Y. Supr., 84. 
 Smith, Matter of, 10 Wend., 449. Constitutional 
 
 law. Followed, People ex rel. Underwood v. 
 
 Daniell, 50 N. Y., 274. 
 
 , 65 Barb., 283. Beversed, 52 N. Y., 526. 
 
 , 62 N. Y., 626. N. Y. city, publication of 
 
 notices. Distinguished and limited. In matter 
 
 ofFolsom, 56 N. Y., 60. 
 Smith V. ^tna Life Ins. Co., 5 Lans., 545. 
 
 Affirmed, 49 N. Y., 211. 
 V. Birdsall, 9 Johns., 328. Compensation 
 
 to officers. Explained, Crofut v. Brandt, 47 
 
 How., 263. Disapproved, S. C, 46 How., 481. 
 • V. Brady, 17 N. Y., 187. Partial per 
 
 formance. Approved, Crane v. Knubel, 43 
 
 How., 389 ; 34 N. Y. Supr., 443 ; Glacius v. 
 Black, 50 N. Y., 145. 
 
 • V. Coe, 33 N. Y. Supr., 480. Affirmed, 
 
 36 id., 570. 
 
 V. Countryman, 30 N. Y., 655. Practice. 
 
 Approved, Lathrop v. Godfrey, 8 Hun, 739. 
 
 V. Elder, 3 Johns., 105. Jurisdiction. 
 
 Approved, Carpenter v. Central Park, etc. R. R. 
 Co., 11 Abb. N. S., 416. 
 
 ■ V. Felt, 50 Barb., 612. Affirmed, 51 N. 
 
 Y, 642. 
 
 • V. FeUon, 43 N. Y., 419. Set-oft. Fol- 
 
 lowed, Smith V. Fox, 48 N. Y, 674. Approved, 
 Perry v. Chester, 12 Abb. N. S., 131. 
 
 Griffith, 3 Hill, 388. Evidence of 
 
 value. Approved, Sturm v. Williams, 38 N. 
 Y. Supr., 325. 
 
 ■ V. Helmer, 7 Barb., 416. Highways, as- 
 
 sessment of damages. Approved, Chapman v. 
 Gates, 54 N. Y., 132. 
 
 ■ v. Isaacs, 87 N. Y. Supr., 3. Reversed, 
 
 58 N. Y., 680. 
 
 • V. Jones, 4 Rob., 657. Order of arrest. 
 
 Distinguished, Evans v. Holmes, 46 How., 515. 
 ■ V. Knapp, 80 N. Y., 581. Discharge from 
 
 arrest Explained, Elwood v. Gardner, 10 Abb. 
 N. S., 238; 45 N. Y., 349. 
 
 V. Lockwood, 13 Barb. 209. Statutory 
 
 remedy. Distinguished, Smith v. City of Al- 
 bany, 7 Lans., 14. 
 
 yor, etc. of New York, 57 N. Y., 518. 
 
 Salary, recovery of. Followed, McVeany v. 
 Mayor, etc., 1 Hun, 35. 
 
 ■ V. MiUer, 6 Rob., 157 ; 6 Abb. N. S., 234. 
 
 Reversed, 43 N. Y., 171. 
 
 ^ V. New York Cent. R. R. Co., 4 Keyes, 
 
 180. Contract. Approved, Bates v. Coster, 
 1 Hun, 400. Statute of frauds. Approved, 
 Passaic Manuf. Co. v. Hoffman, 3 Daly, 495. 
 
 V. New York and H. R. R. Co., 19 N. Y, 
 
 192. Master's liability. Approved, Svenson 
 V. Atlantic Mail Steamship Co., 57 N. Y., 108. 
 - V. Niver, 2 Barb., 180. Termination of 
 
 lease. Distinguished, Wilson v. Lester, 64 
 Barb., 431. 
 
 ' V. Randall, 3 Hill, 495. Deposition. Dis- 
 
 tinguished, Goodyear v. Vosburgh, 41 How., 421. 
 • V. Rogers, 17 Johns., 340. Discharge of 
 
 partner. Followed, Vernam v. Harris, 1 Hun, 
 451. 
 
 ■ V. Saratoga Ins. Co., 3 Hill, 508. For- 
 
 feiture. Approved, Evans v. U. S. Life Ins. 
 Co., 3 Hun, 687. 
 
 • V. Slade, 57 Barb., 641. Exempt prop- 
 
 erty. Followed, Reinecke v. Flecke, 36 N. Y. 
 Supr., 491. 
 
 ■ V. Smith, 4 Wend., 468. . Contract in re- 
 
 straint of trade. Distinguished, Sanders v. 
 Hoffman, 39 N. Y. Supr., 307. 
 
 V. , 25 Wend., 405. Tender. Fol- 
 
 lowed, Houbie v. Volkening, 49 How., 169. 
 
 V. Stewart, 6 Johns., 46. Use and occu- 
 pation. Distinguished, Thompson v. Bower, 60 
 Barb., 463. 
 
 ■V. Traflon, 3 Rob., 709. Pleading in 
 
 mitigation. Approved, Fink v. Justh, 14 Abb. 
 N. S., 107. 
 
 V. WOcox, 24 N. Y., 353. Sunday law. 
 
 Distinguished, Carroll v. Staten Island R. R. 
 Co., 66 Barb., 32. 
 
1 
 
 CASES CRITICISED. 
 
 Snelling v. Howard, 7 Rob., 400. Affirmed, 51 
 N. T., 373. 
 
 Snow V. Columbian Ins. Co., 48 Barb., 469. Be- 
 Teraed, 48 N. Y., 624. 
 
 V. , 48 N. Y., 624. Marine insur- 
 ance. Followed, Wheeler v. N. Y. Mut. Ins. 
 Co., 35 N. Y. Supr., 247. 
 
 . T. Judson, 38 Barb., 210. Libel. Distin- 
 
 guis]>ed, Hooey v. Rubber Tip Pencil Co., 57 
 N. Y., 119. 
 
 Solmes V. Rutgers Fire Ins. Co., 3 Keyes, 416. 
 Insurance. Followed, Pitney r. Glens Falls 
 Ins. Co., 61 Barb., 385. 
 
 Sortore v. Scott, 6 Lans., 271. Action by cestuis 
 que trust. Followed, Petrie' t. Petrie, 7 Lans., 
 90. 
 
 Southwidcv. Southmch,2 Sweeny, 234. Affirmed, 
 49 N. Y., 510. 
 
 Spencer v. Bamett, 35 N. Y., 94. Mechanic's 
 lien. Followed, Hubbell v. Schuyler, 14 Abb. 
 N. S., 284 ; 4 Daly, 362. Distinguished, Ha- 
 den V. Buddensick, 49 How., 241. 
 
 Spooner v. Brooklyn City R. R. Co., 36, Barb., 
 217. EcTersed, 54 N. Y., 230. 
 
 V. Keeler, 51 Barb., 680. Reversed, 51 
 
 N. Y., 527. 
 
 Sprague v. Blake, 20 Wend., 61. Warranty. 
 Approved, Lawton v. Keil, 61 Barb., 558. 
 
 Springer v. Dwyer, 58 Barb., 189. Reversed, 50 
 N. Y., 19. 
 
 Springfield if. and F. Ins. Co. v. Allen, 43 N. Y., 
 389. Change of title. Distinguished, Savage 
 V. Long Island Ins. Co., 43 How., 462. 
 
 St. .lohn V. Pierce, 22 Barb., 362. Parties in 
 ejectment. Followed, Hubbell v. Lerch, 62 
 Barb., 29§ ; 58 N. Y., 237. 
 
 St. Luke's Home v. Association fir Relief of Indi- 
 gent Females, 34 N. Y. Supr., 241. Reversed, 
 52 N. Y., 191. 
 
 St. Peter v. Denison, 58 N. Y., 416. Trespass. 
 Followed, Bradt v. City of Albany, 6 Hun, 591. 
 
 Stall V. Catskill Bank, 18 Wend., 466. Note 
 drawn by partner. Approved, Chemung Canal 
 Bank V. Bradner, 44 N. Y., 681. 
 
 Stanley v. Webb, 4 Sandf., 28. Privileged publi- 
 cation. Explained, Ackerman v. Jones, 37 N. 
 Y. Supr, 42. 
 
 Stanton v. Miller, 65 Barb., 58. Reversed, 68 N. 
 Y., 192. Motion for new trial. Followed, 
 Church V. Kidd, 3 Hun, 254. 
 
 Starin v. Genoa, Town of, 23 N. Y., 489. Bond- 
 ing town. Followed, People ex rel. White v. 
 Hulbert, 59 Barb., 446 ; Town of Venice v. 
 Breed, 65 Barb., 597. Corporation, when 
 bound by acts of its officers. Approved, Dabney 
 V. Stevens, 10 Abb. N. S-, 39; 2 Sweeny, 415. 
 Parol proof to contradict record. Approved, 
 Pierce v. Wright, 45 How., 1. 
 
 Starr v. Trustees of Rochester, 6 Wend., 664. 
 Certiorari overruled. People v. Hill, 65 Barb., 
 170. 
 
 Stale V. City of Buffalo, 2 Hill, 434. Taking un- 
 authorized security. Distinguished, Richard- 
 son V. CrandaU, 48 N. Y., 348. 
 
 Stather v. McDonald, 6 Hill, 93. Bona fide holder. 
 Followed, Huffy. Wagner, 63 Barb., 215. 
 
 Steamboat Josephine, In matter of, 89 N. Y., 19. 
 
 Maritime 'lien. Followed-, Poole v. Kermit, 69 
 
 N. Y., 554. 
 Steams v. Tappin, 5 Duer, 294. Action on new 
 
 promise after discharge in bankruptcy. Fol- 
 lowed, Dusenbury v. Hoyt, 45 How., 147. 
 
 Steers v. Liverpool, N. Y. and P. S. Co., 57 N. Y., 
 1. Limitation of carrier's liability. Followed, 
 Magnin v. Dinsmore, 56 N. Y., ^88. 
 
 Steinweg v. Erie Railway Co., 48 N. Y., 123. Lim- 
 itation of carrier's liability. Approved, Cald- 
 well V. New Jersey Steamboat Co., 47 N. Y., 282. 
 Followed, Magnin v. Dinsmore, 66 N. Y., 168. 
 
 Stephens v. People, 19 N. Y., 649. Impeaching 
 witness. Distinguished, Romertze v. East Riv. 
 National Bank, 49 N. Y., 677. Followed, Same 
 V. Same, 2 Sweeny, 82. 
 
 T. Santee, 51 Barb., 682. Reversed, 49 
 
 N. Y., 35. Contract. Distinguished, Cooke v. 
 Millard, 6 Lans., 24^. 
 Stemberger y. Me Govern, 4 Daly, 456. In part 
 reversed, 15 Abb. N. S., 267 ; 56 N. Y., 12. 
 
 ■, 16 Abb. N. S., 257. Variance. 
 
 Followed, Knapp v. Roche, 37 N. Y. Supr., 395. 
 Stevens v. People, 1 Hill, 261. Proof of former 
 conviction. Followed, Johnson v. People, 65 
 Barb., 342. 
 
 V. Phcenix Ins. Co., 24 How., 617. Juris- 
 
 diction of foreign corporations. Approved, 
 Ahern v. National Steamship Co., 11 Abb. N. S., 
 356; 3 Daly, 399. 
 
 -, 41 N. Y., 149. Removal to 
 
 United States Court. Followed, De Camp v. 
 
 New Jersey Mut. Life Ins. Co., 2 Sweeny, 481. 
 Stevenson v. Maxwell, 2 N. Y., 408. Interest. 
 
 Followed, Parker v. Parker, 65 B&rb., 205. 
 Steward v. Winters, 4 Sandf., 591. Injunction. 
 
 Distinguished, Agate v. Lowenbeim, 4 Daly, 62. 
 Stewart v. Hawley, 21 Wend., 552. Justification 
 
 of arrest. Approved, Gardner v. Bain, 5 
 
 Lans., 256. Recitals in warrant. Approved, 
 
 Smith V. Warden, 4 Hun, 787. 
 
 V. Howard, 16 Barb., 26. Waiver of 
 
 privilege. Distinguished, Knickerbocker L. Ins. 
 Co. V. Ecclesine, 42 How., 201 ; 11 Abb. N. S., 
 385 ; 34 N. Y. Supr., 76. Disapproved, Farmer 
 y. Bobbins, 47 How., 414. 
 
 • V. Powers, 38 N. Y. Supr., 66. Reversed, 
 
 S. C, sub nom, Stewart v. James, id., 866. 
 Stillwell V. Mills, 19 Johns., 304. Accounting by 
 
 guardian. Approved, Brown v. Snell, 67 N. 
 
 Y., 286. 
 Stiner v. Stiner, 58 Barb., 643. Affirmed, 49 N. 
 
 Y., 679. 
 Stoddard v. Denison, 2 Sweeny, 54. Chattel 
 
 mortgage. Approved, Porter v. Parmley, 48 
 
 How., 446 ; 34 N. Y. Supr., 398. 
 Stokes v. Landgroff, 17 Barb., 608. Trademark. 
 
 Approved, Taylor v. Gillies, 59 N. Y., 331. 
 Stone V. Browning, 49 Barb., 244. Sale. Re- 
 versed, 44 How., 131. 
 
 V. Burgess, 2 Lans., 489. Affirmed, 47 
 
 N. Y., 521. 
 
 V. Cooper, 2 Denio, 293. Libel. Ap- 
 proved, More V. Bennett, 48 N. Y., 472. 
 
 V. Flower, 47 N. Y., 566. Exception. 
 
 Followed, Wombough v. Cooper, 2 Hun, 428 ; 
 Miner v. Mayor, etc. of New York, 87 N. Y. 
 Supr., 171. * ' -^ 
 
 Storm V. Livingston, 6 Johns., 44. Demand be- 
 fore suit. Approved, Twinam v. Swart, 4 
 Lans., 268. 
 
 Storms V. Hyde, 32 Barb., 181. Demand before 
 suit. Approved, Talcott v. Belding, 46 How., 
 419 ; 86 N. Y. Supr., 84. 
 
CASES CRITICISED. 
 
 U 
 
 Stovy V. Furman, 25 N. Y., 214. Corporation 
 
 assessments. Distinguished, Hurd y. Tallman, 
 
 60 Barb., 272. 
 Stowell V. Eadett, 5 Lans., 880. Modified, 67 N. 
 
 Y., 637. 
 Strattm v. N. York and N. H. R. R. Co., 2 E. D. 
 
 Smith, 187. Liability of connecting carriers. 
 
 Approved, jStna Ins. Co. v. Wheeler, 6 Lans., 
 
 480. 
 Strong v. Deforest, 15 Abb., 427. Damages on 
 
 dissolution of injunction. Followed, Allen v. 
 
 Brown, 6 Lans., oil. 
 V. New York Laundry Manuf. Co., 87 N. Y. 
 
 Supr., 279. Usury. Distinguisued, Graves v. 
 
 Lovell, 38 id., 154. 
 
 ■ V. Ptoce, 4 Rob., 385. Reversed, 51 N. Y., 
 
 627. 
 
 V. Skinner, 4 Barb., 552. Note extin- 
 guished by marriage. Distinguished, Wright 
 V. Wright, 69 Barb., 505. 
 
 ■ V. Sproul, 4 Daly, 326. Reversed, 56 N. 
 
 Y., 497. 
 
 ■ V. Stebbins, 5 Cow., 210. Statutory con- 
 
 struction. Approved, Verona Central Cheese 
 Factory v. Murtaugh, 4 Lans., 17. 
 
 Stroud V. Tilton, 3 Keyes, 139. Books as evi- 
 dence. Followed, Burke v. Wolfe, 88 N. Y. 
 Supr., 26a 
 
 Struber v. Ocean Ins. Co., 9 Abb., 23 ; 2 Hilt., 
 475. Notice of appeal. Approved, Hoffen- 
 berth v. MulUr, 12 Abb. N. S., 221. 
 
 Studwell V. Terrett, 4 Bosw., 620. Contract. 
 Followed, Gallagher v. Nichols, 60 N. Y., 438. 
 
 Sturgis v. Spofford, 52 Barb., 436. Affirmed in 
 part, 45 N. Y., 446. 
 
 Sturm V. Atlantic Mut. Ins. Co., 38 N. Y. Supr., 
 281. Affirmed, id., 667. 
 
 V. Williams, 38 N. Y. Supr., 825. Affirm- 
 ed, id., 567. 
 
 Stuyvesant v. Bowman, 3 Abb., 270 ; 84 How., 61. 
 Vacating arrest Distinguished, Blakelee y. 
 Buchanan, 44 How., 97. 
 
 Sudlow y. Knox, 7 Abb. N. S., 411. Appeal. 
 Distinguished, Brinkley v. Brinkley, 47 N. Y., 
 40. Contempt. Explained, Pei^le ex rel, 
 Woolf-w. Jacobs, 5 Hun, 428. Habeas corpus. 
 Followed, Matter of Jacobs, 49 How., 370. 
 
 Sullivan v. Mayor, etc. of New York, 46 How., 
 162. Affirmed, 47 How., 491 ; 63 N. Y., 652. 
 
 Sunderland v. Loder, 6 Wend., 58. Imprison- 
 ment on execution. Followed, Koenig y. 
 Steckel, 36 N. Y. Supr. 167. 
 
 Supervisors of Chenango Co. v. Birdsall, 4 Wend., 
 453. Acts of supervisors bind successors. 
 Approved, Supervisors of Orleans Co. v. Bowen, 
 4 Lans., 24. 
 
 of Onondaga Co. v. Briggs, 2 Den., 26. 
 
 Money paid. Distinguished, Board of Super- 
 visors of Richmond Co. v. Ellis, 59 N. Y., 620. 
 
 V. , 2 Hill, 870. Taxation of costs 
 
 when conclusive. Followed, Pittman v. Mayor, 
 etc. of New York, 3 Hun, 370. 
 
 Rensselaer Co. v. Bates, 17 N. Y., 245. 
 
 Estoppel. Followed, Field v. Van Cott, 15 
 
 Abb. N. S., 349. 
 Susquehanna Bank v. Supervisors of Broome Co., 
 
 25 N. Y., 312. Injunction. Approved, Western 
 
 R. R. Co. v. Nolan, 48 N. Y., 613; Kilbourne 
 
 V. St. John, 69 id., 21. 
 Suydam y. Jenkins, 3 Sandf., 614. Damages in 
 
 replevin. Approved, Twinam v. Swart, 4 
 Lans., 268 ; Baker v. Drake, 53 N. Y., 211. 
 Criticised, Spicer v. Waters, 66 Barb., 227. 
 
 v. Keyes, 13 Johns., 444. Liability of as- 
 sessors. In part approved. Palmer v. Law- 
 rence, 6 Lans., 282. 
 
 y. Morris Canal Co., 5 Hill, 491. Bank- 
 ing. Approved, Hackettstown Bank v. Rea, 6 
 Lans., 465 ; 64 Barb., 175. 
 
 Svenson v. Atlantic Mail Steamship Co., 83 N. 
 Y. Supr., 277. Affirmed, 67 N. Y., 108. 
 
 Swartwout v. Curtis, 4 N. Y., 415. Appeal. Fol- 
 lowed, Catlin V. Grissler, 57 N. Y., 363. 
 
 ^— — y. New Jersey Steamboat Co., 46 Barb., 
 222. Affirmed, 48 'N.Y., 209. 
 
 Sweet V. JBulbert, 51 Barb., 312. Writ of pro- 
 hibition. Distinguished, People ex rel. City of 
 Albany v. Clute, 42 How., 157. 
 
 V. Tuttte, 14 N. Y., 466. Examination of 
 
 witness. Followed, Lewis v. Rogers, 34 N. Y. 
 Supr., 64. 
 
 Swett V. Colgate, 20 Johns., 196. Warranty. 
 Overruled, Hawkins v. Pemberton, 44 How., 
 102 ; 61 N. Y., 198. 
 
 Swick V. Sears, 1 Hill, 17. Reservation in deed. 
 Followed, Clark v. Cottrell, 63 Barb., 336. 
 
 Swift V. Hart, 12 Barb., 531. Chattel mortgage. 
 Doubted, Marsden v. Cornell, 2 Hun, 449. 
 
 V. Poughkeepsie, City of, 37 N. Y., 511. 
 
 Assessors, powers of. Followed, Bank of 
 Commonwealth v. Mayor, etc. of New York, 43 
 N. Y., 184. Recovery of illegal tax. Distin- 
 guished, Newman v. Supervisors of Livingston 
 Co., 46 N. Y., 676. Approved, Buffalo and 
 State Line R. R. Co. v. Supervisors of Erie Co., 
 48 N. Y., 93. Judicial act. Criticised, National 
 Bank of Chemung v. Citii of Elmira, 53 N. Y., 
 49. 
 
 Swards v. Edgar, 44 How., 139. Affirmed, 59 N. 
 Y.. 28. 
 
 V. Owen, 48 How., 176. Defense of ille- 
 
 gality. Diatinguisbed, O'Toole v. Garvin, 1 
 
 Hun, 92. 
 Sylvester v. Rawlston, 81 Barb., 286. Use and 
 
 occupation. Followed, Thompson v. Bower, 60 
 
 Barb., 463. 
 Syracuse, Bing. and N. Y. R. R. Co. v. Collins, 3 
 
 Lans., 29. Affirmed, 57 N. Y., 641. 
 
 Tabor y. Bradley, 18 N. Y., 109. Appurtenances. 
 
 Distinguished, Voorhees v. Burchard, 65 N. Y., 
 
 98. 
 Taddikin y. Cantrelt, 1 Hun, 710. Irregularity 
 
 effect of. Distinguished, Simpson y. Burch, 4 
 
 Hun, 315. 
 Tallmadge v. Stockholm, 14 Johns., 842. Belief 
 
 from default. Approved, Security Bank of 
 
 N. Y. City y. National Bank of Commonwealth, 
 
 48 Howi, 136. 
 V. Wallis, 25 Wend., 107. Defense. Dis- 
 tinguished, Sweetman y. Prince, 62 Barb., 266. 
 Tallman v. Farley,, 1 Barb., 280. Priority of 
 
 liens. Distinguished, Cook v. Kraft, 41 How., 
 
 279. 
 
 V. Hinman, 10 How., 89. Appealable 
 
 order. Distinguished, Depew v. Dewey, 46 
 How., 441. 
 
 Talmage v. Hunting, 89 Barb., 654 ; 29 N. Y., 447. 
 Ascertaining road. Followed, Marvin v. Par- 
 dee, 64 Barb., 353. 
 
 Tappan v. Ely, 15 Wend., 362. Alteration of 
 
lii 
 
 GASES CRITICISED. 
 
 note. Distinguished, Benedict t. Cowden, 49 
 
 N. Y., 396. 
 Taylor \. Bradhy, 39 N. T., 145. Evidence as to 
 
 damages. Approved, Washburn v. Hubhard, 
 
 6 Lans., 11. 
 y. Carpenter, 2 Sandf., 614. Trade-mark. 
 
 Followed, Godillot v. Hazard, 49 How., 5. 
 
 V. Church, 8 N. Y., 452. Libel, privileged 
 
 commanication. Followed, Sunderiin v. Brad- 
 street, 46 N. Y., 188. 
 
 ■ T. Guest, 45 How., 276. Reversed, 58 
 
 N. Y., 262. 
 
 v. Mayor, etc., 4 E. D. Smith, 559. Negli- 
 gence. Distinguished, Swords v. Edgar, 69 
 N. Y., 28. 
 
 v. Monnot, 4 Duer, 116. Innkeeper. Fol- 
 
 lowed, Bernstein v. Sweeny, 33 N. Y. Supr., 271 
 
 Templeton v. People, 3 Hun, 357. Affirmed, 60 
 N. Y., 643. 
 
 Ten Broeck v. Paige, 6 Hill, 267. Costs, two 
 bills. Approved, Lindslay v. Deafendorf, 43 
 How., 90. 
 
 Terrett v. Crombie, 6 Lans., 82. Modified, 56 
 N. Y., 683. 
 
 Terry v. Chandler, 16 N. Y., 367. Practical loca- 
 tion. Followed, Miner v. Mayor, etc. of New 
 York, 37 N. Y. Supr., 171. 
 
 V. J/ciVet7, 58Barb., 241. Evidence. Dis- 
 tinguished, Whelan v. Lynch,, 60 N. Y., 469. 
 • V. Wiggins 2 Lans., 272. Affirmed, 47 
 
 N. Y., 612. 
 Terwilliger v. Brown, 69 Barb., 9. Affirmed, 44 
 
 N. Y., 237. 
 V. Knapp, 2 E. D. Smith, 88. Excuse for 
 
 non-performance. Followed, Westtake v. Bost- 
 
 wick, 36 N. Y. Supr., 256. 
 Thatcher v. Bank of the State of New York, 6 
 
 Sandf., 121. Explained, 67 N. Y., 597. 
 Thomas, Matter of, 10 Abb. N. S., 114. Former 
 
 adjudication. Approved, Bosenberg, Matter of, 
 
 id., 450. 
 Thomas v. Dickinson, 23 Barb., 431. Damages. 
 
 Distinguished, Kirschmann v.Lediard, 61 Barb., 
 
 673. 
 
 v. Payne, 2 Sweeny, 606. Affirmed, 47 
 
 N. Y., 676. 
 V. Quintard, 5 Duer, 80. Invalidity of 
 
 patent as a defense. Distinguished, Hawks 
 
 V. Swett, 4 Hun., 146. 
 
 v. Winchester, 6 N. Y., 397. Principal's 
 
 liability for negligence of agent. Followed, 
 
 Barney v. Burstenbinder, 7 Lans., 210 ; 64 Barb., 
 
 212. 
 Thompson, Matter of, 1 Wend., 43. Attachment. 
 
 Followed, Mayor, etc. of New York v. Genet, 4 
 
 Hun., 487. 
 Thompson v. Blanchard, 3 N. Y., 335. Statutory 
 
 undertaking. Approved, Bildersee v. Aden, 12 
 
 Abb. N. S.,324. 
 v. , 4 N. Y., 303. Bona fide pur- 
 chaser. Distinguished, Penjield v. Dunbar, 64 
 
 Barb., 239. Impeaching one's own witness. 
 
 Followed. Colter v. Am. Merchants Un. Ex. 
 
 Co., 56 N. Y., 686. 
 
 . T. Erie Railway Co., 45 N. Y., 468. Strik- 
 
 ing out an answer as sham. Followed, Farm- 
 ers Nat. Bank of Ft. Erie v. Leland, 50 N. Y., 
 673. 
 
 ■ V. Fargo, 68 Barb., 675. Eevereed, 44 
 
 How., 176 ; 49 N. Y., 18& 
 
 V. Hall, 46 Barb., 214. Parol evidence to 
 
 vary writing. Approved, Pohalaski v. Mutual 
 Life Ins. Co., 45 How., 504 ; 36 N. Y. Supr., 234. 
 - v. Schermerhorn, 6 N. Y., 92. City ordi- 
 
 nance. Distinguished, City of Brooklyn r. Bres- 
 Un, 67 N. Y. 591. 
 v. Van Veckten, 27 N. Y., 668. Action. 
 
 Distinguished, Anderson v. Hunn, 5 Hun, 79. 
 • V. Wood, 1 Hilt, 96. Remedy of servant 
 
 wrongfully discharged. Distinguished, Moody 
 V. Leverich, 14 Abb. N. S., 146 ; 4 Daly, 401. 
 
 Thornall v. Pitt, 36 N. Y. Supr., 379. Reversed, 
 58 N. Y., 683. 
 
 Thorp v. Keokuk Coal Co., 47 Barb., 439. Af- 
 firmed, 48 N. Y., 253. 
 
 V. Woodhull, h Sandf. Ch., 411. Checks 
 
 in stock subscription. Followed, Syracuse, 
 elc.R. R. Co. V. Gere, 4 Hun, 392. 
 
 Thorpe v. Baulch, 3 Abb. 13, «. Affidavit of 
 merits. Held overruled, by White v. Smith, 16 
 Abb., 109. Eomaine v. Cornwell, 11 Abb. N. S., 
 430. 
 
 Thurston T. CorneH, 38 N. Y., 281. Evidence of 
 intent. Distinguished, Learned v. Ryder, 5 
 Lans., 539 ; 61 Barb., 552. 
 
 Tibbs V. Morris, 44 Barb., 138. Equitable relief. 
 Approved, Giles v. Austin, 38 N. Y. Supr., 216 ; 
 46 How., 269. 
 
 Tiernan v. Wilson, 6 Johns. Ch., 401. Notice. 
 Approved, Hackley v. Draper, 60 N. Y., 88. 
 
 Tinkham v. Borst 31 Barb., 407. Stockholder's 
 liability. Followed, Graham v. Hoy, 38 N. Y. 
 Supr., 506. 
 
 Tinney v. Boston and Albany R. R. Co., 62 Barb. 
 218. Affirmed, 52 N. Y., 632. 
 
 Tipton T. Feitner, 20 N. Y., 425. Statute of 
 frauds. Followed, Atdrich v. Pyatt, 64 Barb., 
 391. 
 
 Tisdale T. Jones, 38 Barb., 623. Note, extin- 
 guished by marriage. Distinguished Wright v. 
 Wright, 69 Barb., 505. 
 
 Titus v. Sumner, 44 N. Y., 266. Slander. Dis- 
 tinguished, Frazier v. McCloskey, 60 N. Y., 337. 
 
 Tolano v. National Steam Navigation Co.. 5 Bob., 
 318. Pleading. Approved, Samuels v. McDon 
 aid, 11 Abb. N. S., 344 ; 42 How., 360; 33 N. Y. 
 Supr., 211. 
 
 Toll v. Hiller, 11 Paige, 228. Payment. Fol- 
 lowed, Keeler v. Van Wie, 49 How., 97. 
 
 Tomlinson v. Borst, 30 Barb., 42. Books as evi- 
 dence. Approved, Burke v. Wolfe, 38 N. Y. 
 Supr., 263. 
 
 V. Mayor, etc. of New York, 23 How., 462. 
 
 Reversed, 44 N. Y., 601. 
 Torrey v. Black, 65 Barb., 414. Reversed, 58 
 
 N. Y., 185. 
 Town V. Stetson, 5 Abb. N. S., 218. Trade-mark. 
 
 Affirmed, S. C, 3 Daly, 53. 
 Town of Guilford v. Supervisors of Chenango Co., 
 
 13 N. Y., 143. Law imposing tax. Approved, 
 
 People exrel. N. Y. ^ Harlem R. R Co. v, Have- 
 
 meyer, 47 How., 494. 
 Townsend, In matter of, 39 N. Y., 171. AppeaL 
 
 Distinguished, Matter of Commissioners of Cen 
 
 tral Park, 50 N. Y., 493. 
 Townsend v. Goelet, 11 Abb. N. S., 187. Cloud on 
 
 title. Followed, Phillips v. Mayor, etc. of New 
 
 York, 2 Hun, 212. 
 
 V. Hendricks, 40 How., 143. Reference. 
 
 FoUowed, Evans v. Kalhfleisch, 36 N. Y. Supr.. 
 
CASES CRITICISED. 
 
 liii 
 
 450 ; Ross v. Combes, 87 N. Y. Supr., 289. Dis- 
 tinguished, Godfrey y. Williamsburg City Fire 
 Ins. Co., 12 Abb. S. S., 260. 
 Townsend v. Hoyt, 51 Barb., 334. Affirmed, 51 N. 
 
 Y., 656. 
 V. Hubbard, 4 Hill, 351. Sealed contract. 
 
 ApproTed, Briggs v. Partridge, 39 N. Y. Supr., 
 
 889. 
 V. Northwestern Ins. Co., 18 N. Y., 168. 
 
 Insurance. Distinguished, Williams v. People's 
 
 Fire Ins. Co., 67 N. Y., 274. 
 Tracy v. Altmyer, 46 N. Y., 599. Motion for new 
 
 trial. Followed, Luddington v. Miller, 36 N. 
 
 Y. Supr., 1. 
 V. Corse, 45 How., 316. Affirmed, 49 id., 
 
 323; 58N. Y., 143. 
 V. Talmadge, 14 N. Y., 188. Action on il- 
 legal contract. Distinguished, Saratoga Co. 
 
 Bank v. King, 44 N. Y., 87. 
 Tremper v. Conklin, 44 Barb., 466. Affirmed, 44 
 
 N. Y., 68. 
 Tribune Association v. Mayor, etc. of New York, 
 
 48 Barb., 240. Municipal corporation, liability 
 
 of. Distinguished, (^in v. Mayor, etc. of New 
 
 York, 44 How., 266. Judgment against city. 
 
 Limited, Sullivan v. Mayor, etc. of New York, 
 
 46 How., 152. 
 Trimm v. Marsh, 3 Lans., 609. Affirmed, 64 N. 
 
 Y., 599. Purchase by mortgagee. Followed, 
 
 Ten Eyck v. Craig, 2 Hun, 452. 
 Trinder v. Durant, 6 Wend., 72. Amendment. 
 
 Distinguished, Diamond v. Williamsburg Ins. 
 
 Co., 4 Daly, 494. 
 Tripp V. Cook, 26 Wend., 145. Setting aside 
 
 sale. Approved, Kellogg v. Howell, 62 Barb., 
 
 280. 
 Trotter T. Hughes, 12 N. Y., 74. Action on im- 
 plied covenant. Distinguished, Thorp v. 
 
 Keokuk Coal Co., 48 N. Y., 253. 
 Troy and Boston R. R Co. v. Tibbitts, 11 How., 
 
 68. Amendment of pleadings. Approved, 
 
 Strong v. Dwight, 11 Abb. N. S., 319. 
 Trufant T. Merrill, 37 How., 631. Reference. 
 
 Followed, Mundorff v. Mundorff, 1 Hun, 41. 
 Trust V. Eepoor, 16 How., 670. Change of at- 
 torneys. Overruled, Board of Supervisors v. 
 
 Brodhead, 44 How., 411. 
 Trustees, etc. v. Williams, 9 Wend., 147. Estop- 
 
 ?el. Distinguished, McMaster v. Prest., etc. 
 ns. Co., of North America, 55 N. Y., 222. 
 Tucker v. Meeks, 2 Sweeny, 736. Affirmed, 62 
 • N. Y., 638. 
 
 V. Tucker, 4 Keyes, 149. Disputed claim, 
 
 what is. Followed, Cooper v. Felter, 6 Lans., 485. 
 
 Turk V. Ridge, 41 N. Y., 201. Mortgagor's per- 
 sonal hability. Approved, Coleman v. Van 
 Rensselaer, 44 How., 368. 
 
 Turner v. Jaycox, 40 N. Y., 470. Construction 
 of instrument. Distinguished, Holmes v. Hub- 
 bard, 60 N. Y., 183. 
 
 Tuthill V. Tracy, 31 N. Y., 157. Affidavits in 
 foreclosure, recording. Held obiter, Frink v. 
 Thompson, 4 Lans., 489. 
 
 Tutde V. Hannegan, 4 Daly, 92. Affirmed, 54 N. 
 Y., 686. 
 
 Tweed, In matter of, 47 How., 162. Fully report- 
 ed, 1 Hun, 252. 
 
 Twinam v. Swart, 4 Lans., 263. Damages in 
 replevin. Explained and limited, Allen v. Fox, 
 51 N. Y., 562. 
 
 Tyack v. Bromley, 4 Edw. Ch., 258. Injuuction. 
 Approved, Palmer v. Foley, 45 How., 110 ; 86 
 N. Y. Supr., 14. 
 
 Tyler v. Gardiner, 35 N. Y., 659. Testamentary 
 capacity. Followed, Kinne v. Johnson, 60 
 Barb., 69. Undue influence. Followed, In 
 matter of Rollwagen, 48 How., 289. 
 
 v. Heidorn, 46 Barb., 439. Adverse pos- 
 session. Distinguished, Bedell v. Shaw, 69 N. 
 Y., 46. 
 
 Tyng v. U. S. Submarine and Torpedo Boat Co., 1 
 riun, 161. Affirmed, 49 How., 360 ; 60 N. Y., 
 644. 
 
 Underwood v. Green, 36 N. Y. Supr., 481. AfBrm- 
 ed, 56 N. Y., 247. 
 
 V. Stuyvesant, 19 Johns., 186. Street. Fol- 
 lowed, In matter of Ingraham, 4 Hun, 495. 
 
 Union Bank v. Mott, 27 N. Y., 633. Revivor. Ap- 
 proved, Arthur v. Griswold, 60 N. Y., 143. 
 
 Union Nat. Bank of Troy v. Basset! , 3 Abb. N. 
 S., 359. Amendment pending a reference. 
 Approved, Hochstetter v. Isaacs, 44 How., 495. 
 V. Sixth National Bank of New York, 1 
 
 Lans., 13. Affirmed, 43 N. Y., 452. Recovery 
 of money paid by mistake. Followed, Na- 
 tional Bank of Commerce v. National Mechanics 
 Bank'g. Ass'n., 46 How., 374. 
 
 - V. Wheeler, 36 N. Y. Supr., 536. Affirm- 
 
 ed, 60 N. Y., 612. 
 Utiea, City of, v. Churchill, SSS. Y., 161. National 
 Bank stock, taxation of. Overruled, First Nat. 
 Bank of Sandy Hill v. Fancher, 48 N. Y., 524. 
 
 Utter V. Gifford, 25 How., 289. Costs. Over- 
 ruled, Turner v. Van Riper, 43 How., 33. 
 
 Vail V. Owen, 19 Barb., 22. Personal liability 
 of assessors. Distinguished, Wade v. Mathe- 
 son, 4 Lans., 158. 
 
 Vale V. Bliss, 50 Barb., 868. Negligence. Ap- 
 proved, Mullaney v. Spence, 16 Abb. N. S., 319. 
 
 Van Allen v. Am. Nat. Bank, 3 Lans., 517. 
 Affirmed, 52 N. Y., 1. 
 
 V. Feltz, 1 Keyes, 332. Limitation of 
 
 actions. Followed, Lansing v. Blair, 43 N. 
 Y., 48. 
 
 ■Van Alstyne v. Nat. Commercial Bank of Albany, 
 7 Trans. App., 241. Action on note. Followed, 
 Crandall v. Schroeppel, 1 Hun, 567. 
 
 V. Prest., etc. Indiana, etc. R. R. Co., 34 
 
 Barb., 28. Remedy of discharged servant. 
 Distinguished, Moody v. Leverich, 14 Abb. N. 
 S., 146; 4 Daly, 401. 
 
 V. Wimple, 5 Cow., 162. Contract, validi- 
 ty of. Followed, Dow v. Way, 64 Barb., 255. 
 
 Van Benschoten v. Yaple, 13 How., 97. Pleading 
 in libel. Overruled, Fink v. Justh, 14 Abb. N. 
 S., 107. 
 
 Vandenburgh v. Truax, 4 T)en., 566. Trespass. 
 Followed, Munger v. Baker, 65 Barb., 639. 
 
 Vanderbilt v. Adams, 7 Cow., 349. Power of 
 harbor masters. Approved, Hoefl v. Seaman, 
 46 How., 24 ; 38 N. Y. Supr., 62. 
 
 Vanderheyden v. Crandall, 2 Den., 25. Estoppel 
 by warranty in mortgage. Followed, Tejt v. 
 Munson, 63 Barb., 81. 
 
 Vanderkarrv. Vanderkarr, 11 Johns., 122. Implied 
 covenant. Followed, Lynch v. Onondaga Salt 
 Co., 64 Barb., 558. 
 
 VanDerzee v. VanDerzee, 30 Barb., '331. Adverse 
 possession. Distinguished, Bedell v. Shaw, 69 
 N. Y., 46. 
 
liv 
 
 CASES CRITICISED. 
 
 Vandevoort v. Palmer, i Duer, 677. Eeraoval to 
 IT. S. Court. Approved, Bell v. Lycoming Ins. 
 Co., 8 Hun, 409. 
 
 VanEpps V. Harrison, 6 Hill, 63. Damages. 
 Approved, Northrop v. Hill., 61 Barb., 136. 
 
 VanGuysling v. VanKuren, 86 N. Y., 70. Tes- 
 tamentary capacity. Followed, Kinne v, John- 
 son, 60 Barb., 69i 
 
 VanHoozen v. Cory, 34 Barb., 10. Sale. Dis- 
 tinguished, Stephens v. Santee, 49 N. Y., 86. 
 
 VanLeuven v. First National Bank of Kingston, 6 
 Lans., 673. Affirmed, 64 N. Y., 671. Contract 
 of corporation. Distinguished, First National 
 Bank V. Ocean Nat. Bank, 60 N. Y., 278. 
 
 Vanneman v. Powers, 7 Lans., 181. In part re- 
 versed, 56 N. Y., 89. 
 
 Vannarsdall v. VanDmenter, 51 Barb., 187. Heirs, 
 bequest to. Distinguished, Cashman v. Horton, 
 59 N. Y., 149. 
 
 VanRensselaer v. Aikin, 44 Barb., 647. Reversed, 
 44 N. Y., 126. 
 
 V. Viekery, 3 Lans., 67. Proof of boun- 
 daries. Followed, Jones v. Smith, 3 Hun, 861. 
 V. Whitbeck, 7 N. Y., 517. Assessor's 
 
 certificate. Distinguished, National Bank of 
 
 Chemung v. City of Elmira, 6 Lans., 116. 
 VanSantvoord v. St. John, 6 Hill, 159. Carrier's 
 
 liability. Approved, Wait v. Albany and Susq. 
 
 R. R. Co., 5 Lans., 473. 
 VanSickle V. Palmer, 2 N. Y., 612. Estoppel. 
 
 Followed, Eitel v. Bracken, 38 N. Y. Supr., 7. 
 VanSlyke v. Hyatt, 9 Abb N. S., 58. Affirmed, 
 
 46 N. Y.. 269. Appeal. Followed, Qfiincey v. 
 
 Young, 53 N. Y., 504. Sending back referee's 
 
 report. Followed, Gove v. Hammond, 48 How., 
 
 885. 
 V. Lettiee, 6 Hill, 610. Arbitration of 
 
 matter in suit. Followed, Baldwin v, Barrett, 
 
 4 Him, 119. 
 
 • V. Sheldon, 9 Barb., 278. Statutory fore- 
 
 closure. Distinguished, Mowry v. Sanborn, 62 
 Barb., 223. 
 
 Van Wagner v. Terrett, 27 Barb., 181. Contract. 
 Followed, Gallagher v. Nichols, 60 N. Y., 438. 
 
 Van Winkle v. U. S. Mail Steamship Co., 37 
 Barb., 122. Carrier, liability of. Distinguish- 
 ed, Mierson v. Hope, 2 Sweeny, 561. 
 
 VanWyck v. Hardy, 39 How., 392 ; 11 Abb., 475. 
 Affidavit for publication of summons. Ap- 
 proved, Hundley v. Quick, 47 How., 233. Fol- 
 lowed, Steinle v. Bell, 12 Abb. N. S., 171. 
 
 v. Seward, 6 Paige, 62. Fraudulent con- 
 veyance. Approved, Dunlap v. Hawkins, 59 
 N. Y., 342. 
 
 Veltman v. Thonwson, 3 N. Y., 438. Lien. Dis- 
 tinguished, Mott V. Lansing, 67 N. Y., 112. 
 
 Vernon v. Vernon, 7 Lans., 492. Modified, 53 N. 
 Y., 851. 
 
 Verona Central Cheese Co. v. Murtaugh, 4 Lans., 
 17. Reversed, 50 N. Y., 814. 
 
 Verplank v. Mercantile Ins. Co., 1 Edw. Ch., 46. 
 Distinguished, Strong v. Dwight, 11 Abb. N. 
 S., 319. 
 
 Viall V. Genesee Mut. Ins. Co., 19 Barb., 440. 
 Waiver of forfeiture. Approved, Carroll v. 
 Charter Oak Ins. Co., 10 Abb. N. S., 166. 
 
 Vide V. Gass, 49 Barb., 96. Affirmed, 51 N. Y., 
 624. 
 
 Vincent v. Bamford, 83 N. Y. Supr., 666. Servant, 
 who is. Followed, Hill v. Spencer, 34 N. Y. 
 ^ Supr., 304. 
 
 v. Sands, 38 N. Y. Supr., 611. LiabiUty 
 
 of trustees of corporation. Followed, Jones v. 
 Barlow, 38 N. Y. Supr., 142. 
 
 Vischer v. Conant, 4 Cow., 896. Bill of particu- 
 lars. Followed, Mayor, etc. of New York v. 
 Marrener, 49 How., 86. 
 
 V. Vischer, 12 Barb., 640. Foreign divorce. 
 
 validity of. Followed, Holmes v. Holmes, i 
 
 Lans., 888. 
 VonLatham v. Libby, 38 Barb., 889. Protection of 
 
 process. Distinguished, M\lkr v. Adams, 62 
 
 N. Y., 409. 
 VonRhade v. VonRhade, 2 N. Y. Sup., 491. Affi- 
 davit for publication. Distinguished, Bixby 
 
 V. Smith, 3 Hun, 60. 
 Voorhees v. Burchard, 6 Lans., 176. Affirmed, 55 
 
 N. Y., 98. 
 
 V. Voorhees, 50 Barb., 126. Undue in- 
 
 fluence. Followed, Kinne v. Johnson, 60 
 Barb., 69. 
 Voorhis V. Childs" Executor, 17 N. Y., 857. Action 
 against representatives of deceased partner. 
 Followed, Pope v. Cole, 64 Barb., 406. 
 
 Vose V. Robinson, 9 Johns, 192. Marine insurance. 
 
 Approved, Fernandez v. Great Western Ins. Co., 
 
 48 N. Y., 671. 
 Vosburgh v. Teator, 32 N. Y., 561. Settlement of 
 
 boundaries. Followed, Miner v. Mayor, etc. of 
 
 New York, 87 N. Y. Supr., 171. 
 
 V. Thayer, 12 Johns, 461. Books as evi- 
 
 dence. Distinguished, Burke v. Wolfe, 38 N. 
 Y. Supr., 263. 
 
 Vose V. Cockrofi, 45 Barb., 68. Affirmed, 44 N. 
 Y., 416. Liens on ships. Followed, Poole v. 
 Kermit, 37 N. Y. Supr., 114. Waiver. Dis- 
 tinguished, Brookman v. Hamill, 46 N. Y., 
 636. 
 
 Vrooman v. Dunlap, 30 Barb., 202. Personal, 
 liability of mortgagor. Approved, Coleman v. 
 VanRensselaer, 44 How., 868. 
 
 Vroom V. VanHome, 10 Paige, 549. Foreign 
 administrator, powers of. Approved, Stone v. 
 Scripture, 4 Ijans., 186. 
 
 Wade V. Kalhjleisch, 16 Abb. N. S., 16. Affirmed, 
 68 N. Y,, 282. 
 
 Wajffle V. Goble, 53 Barb., 617. Affidavit for 
 publication of summons. Approved, Handley 
 v. Quick, 47 How,, 288. Attachment. Ap- 
 proved, Taddiken v. Cantrell, 1 Hun, 710. Ir- 
 regularity, effect of. Distinguished, Simpson 
 V. Burch, 4 Hun, 316. 
 
 V. New York Cent. R. R. Co., 58 Barb., 
 
 418. Affirmed, 58 N. Y., 11. Watercourse. 
 
 Followed, Wajte V. Porter, 61 Barb., 180. 
 Wait V. Green, 6 Park Cr., 185. Justification of 
 
 arrest. Distinguished, Gardner v. Bain, 5 Lans., 
 
 256. 
 V. , 46 How., 449 ; 36 N. Y., 656. 
 
 Bonajide purchaser. Disapproved, 46 How., 
 
 630. 
 
 - V. Wait, 4 N. Y., 95. Dower. Distin- 
 
 guished, Kade v. Lauber, 48 How., 882. 
 Wakeman v. Dalley, 44 Barb, 498. Affirmed, 61 
 N. Y., 27. Fraudulent representations. Fol- 
 lowed, Ind., Peru and Chi. M. R. Co. v. Tung, 
 48 How., 198 ; 2 Hun, 311. 
 
 V. Price, 8 N. Y., 334. Appealable order. 
 
 Distinguished, Depew v. Dewey, 46 How., 44L 
 Walden v. Davison, 15 Wend., 675. Sheriff's 
 liability. Approved, James v. Gurley, 48 N 
 Y., 162. 
 
OASES CRITICISED. 
 
 Iv 
 
 Walden v. Sherburne, 15 Johns., 409. Partnership. 
 AppToved, Leggett r. Hyde, 47 How., 524. 
 
 Walker v. Allen, 16 How., 91; 8 Abb., 452. 
 Costs, two bills. Approved, Lindalay v. Deaf- 
 endmf, 43 How., 90. * 
 
 V. Grain, 17 Barb., 119. Corporation 
 
 assessments. Followed, Hurd v. Tatlman, 60 
 Barb., 272. 
 
 V. Holmes, 22 Wend., 614. Attorney, dis- 
 qualification as to bail. Followed, Wilmant v. 
 Meserole, 48 How., 480. 
 
 V. Svoayxee, 8 Abb., 136. Damages, ne- 
 glect to repair. Approved, Flynn v. Haiton, 
 43 How., 833 ; 4 Daly, 652. 
 
 V. White, 36,Barb., 592. Deed by referee. 
 
 Followed, Dawley v. Brown, 65 Barb., 107. 
 
 Wallace v. Drew, 59 Barb., 418. Reversed, 54 
 N. Y., 678. 
 
 V. Markham, 1 Den., 671. Presenting 
 
 claim to executor. Distinguished, Genet y. 
 Binsse, 3 Daly, 289. 
 
 V. Morse, 5 Hill, 892. Liability of infant 
 
 for fraud. Approved, Schtmemann v. Paradise, 
 46 How., 426. 
 
 Wallerstein v. Columbian Ins. Co., 3 Bob-, 528. 
 Reversed, 44 N. Y.,205. 
 
 V. — • , 44 N. y., 205. Total loss, what 
 
 is. Followed, Young y. Pacific Mut. Ins. Co., 
 34 N. Y. Supr., 821. 
 
 Walrath v. Thompson, 4 Hill, 200. Guaranty. 
 Approved, Crist v. Burlingame, 62 Barb., 361. 
 
 Walrod V. Ball, 9 Barb., 271. Evidence. Ap- 
 proved, Morange v. Mix, 44 N. Y., 315. 
 
 Walsh V. Sun Mut. Ins. Co., 17 Abb., 856. Spe- 
 cial jury. Approved, People v. McGuire, 43 
 How., 67. 
 
 v. Washington Ins. Co., 32 N. Y., 427. In- 
 surance. Followed, Sturm v. Atlantic Mut. Ins. 
 Co., 38 N. Y. Supr., 282. 
 
 Ward V. Davis, 6 How., 274. Place of trial. 
 Disapproved, Christ/ v. Kiersted, 47 How., 467. 
 
 V. People, 3 Hill, 896. Petit larceny. 
 
 Held obiter. People ex rel, Stetzer v. Bawson, 
 
 61 Baj-b., 619. 
 
 v. Ward, 6 Abb.N. S., 79. Alimony, en- 
 forcing payment. In part overruled, Ford v. 
 Ford, 41 How., 169 ; 10 Abb. N. S., 74. 
 
 Wardrop v. Dunlop, 1 Hun, 825. Affirmed, 59 
 
 . N. Y., 684. 
 
 Warner t. Erie Railway Co., 89 N. Y., 468. 
 Master's liability to servant. Followed, King 
 V. New York Cent, and H- Riv. R. R. Co., 4 
 Hun, 769. Negligence. Explained, Tinney v. 
 Boston and Albany R. R. Co., 62 Barb., 218. 
 
 v.New York Cent. R. R. Co., 45 Barb., 
 
 299. ileversed, 44 N. Y., 465. 
 
 v. , 44 N. Y., 465. Negligence. 
 
 Criticised, Costello v. Syr., Binq. and New York 
 R. R. Co., 65 Barb., 92. Held obiter, Robinson 
 V. N. Y. Cent, and Hud. Riv. R. R. Co., 65 
 Barb., 146. 
 
 y. Western Trans. Co., 5 Rob., 490. Car- 
 rier's liability. Distinguished, Gorham Mam^f. 
 Co. V. Fargo, 45 How., 90 ; 35N. Y. Supr., 484. 
 
 Washburn v. Jones, 14 Barb., 193. Innkeeper's 
 liability. Approved, Mowers v. Fethers, 6 
 Laus., 112. 
 
 Water Commissioners of Detroit v. Burr, 2 Sweeny, 
 25 ; 88 N. Y. Supr., 522. Affirmed, 56 N. Y., 
 665. 
 
 ■ ■ V. Lansing, 45 N. Y., 19. Commissioners, 
 all must act. Distinguished, In matter of 
 widening Broadway, 63 Barb., 572. 
 
 Waters v. Whitmore, 13 Barb., 634. Short sum- 
 mons. Distinguished, Clark r. Wellington, 5 
 Hun, 638. 
 
 Watson, In matter of, 8 Lans., 408. Affirmed in 
 part, 5 id., 466. Attachment to enforce surro- 
 gate's decree. Explained and modified, Timp- 
 san's Estate, 15 Abb. N. S., 230. . Imprisonment, 
 illegal. Approved, Shanks' Case, 15 Abb. N. 
 S., 38. 
 
 Watts V, Kinney, 6 Hill, 82. Construction of 
 deed. Approved, Rexford r Marquis, 7 Lans., 
 249. 
 
 Wayland v. Tysen, 9 Abb. N. S., 79. Reversed, 
 45 N. Y., 281. 
 
 -, 46 N. Y., 281. Sham answer. 
 
 Followed, ClajHin y .Jaroslauski, 64 Barb., 463 ; 
 Farmers National Bank of Ft. Erie v. Leland, 
 50 N. Y., 673. 
 Weaver v. Borden, 8 Lans., 338. Reversed, 49 
 N. Y., 286. 
 
 -,49N.Y., 286. Bona fide pur- 
 
 chaser. Followed, Cary v. White, 52 N. Y., 
 138. 
 
 • v. Devendorf, 8 Den., 117. Liability of 
 
 assessor. Distinguished, Palmer v. Lawrence, 
 6 Lans., 282. 
 
 ■ y. Rome, etc. R. R. Co.,. 8 N. Y. Sup. 
 
 270. Bights of passenger by railroad. Dis- 
 tinguished, Townsend v. New York Cent, and 
 Hud. Riv. R. R Co., 4 Hun, 217. 
 Webb y Albertson, 4 Barb., 51. Bond taken co- 
 lore officii. Approved, Richardson v. Crandall, 
 48 N. Y., 848. 
 
 ■ v. Rome, Wat. and Ogd. R. R. Co., 8 Lans., 
 
 453. Affirmed, 49 N. Y., 420. 
 Webber's Executors V. Blunt, 19 Wend., 188. Bond 
 taken colore offieii. Approved, Richardson v. 
 CrandaU, 48 N. Y., 348. 
 
 Webster v. Hud. Riv. R. R. Co., 88 N. Y., 260. 
 Contributory negligence. Followed, Arctic 
 Fire Ins. Co. v. Austin, 8 Hun, 196. Negli- 
 gence of another, imputation of. Followed, 
 Robinson v. New York Cent, and Hud, Riv. R. 
 R. Co., 65 Barb., 146. 
 
 Weed V. Covill, 14 Barb., 242. Mortgagor's per- 
 sonal liability. Approved, Coleman v. Van 
 Rensselaer, 44 How., 368. 
 
 Weeks V. Love, 83 N. Y. Supr., 897. Affirmed, 
 
 50 N. Y., 568. 
 Weet V. Trustees ofBrockport, 16 N. Y., 161. Negli- 
 gence. Distinguished, Day v. Grossman, 1 Hun, 
 
 670. 
 Wehlkampf v. Willett, 1 Daly, 4. New trial. 
 
 Distinguished, Messenger v. Fourth National 
 
 Bank, 48 How., 642. 
 Wells y. Gates, 18 Barb., 554. Joint authority. 
 
 Distinguished, Hawley v. Keeler, 62 Barb., 
 
 231. 
 
 y. Jones, 2 Abb., 20. Bail on arrest, lia- 
 
 bility of. Approved, Bostwick v. Wildey, 42 
 How., 246; 84 N. Y. Supr., 28. 
 
 V. Mann, 52 Barb., 268. Reversed, 46 
 
 N. Y., 327. 
 
 • v. Steam Navigation Co., 8 N. Y., 875. Con- 
 
 tract. Followed, Milton v. Hudson Riv. Steam- 
 boat Co., 4 Lans., 76. 
 v. Yates, 44 N. Y., 526. Mistake. Dis- 
 
Ivi 
 
 CASES CRITICISED. 
 
 tinguished, Bryce v. Larillard Fire Ins. Co., 46 
 
 How., 498. - 
 WeUh V. Darrugh, 52 N. Y., 590. Reference. 
 
 Followed, Patterson v. Stettaner, 89 N. Y. 
 
 Supr., 413; Williams v. Allen, 48 How., 367 ; 2 
 
 Hun, 377 ; Kennedy v. Kenna, 49 How., 308. 
 Welts y. Conn. Mut. Life Ins. Co., 46 Barb., 412. 
 
 Affirmed, 48 N. Y., .34. 
 Wendell v. Lewis, 8 Paige, 614. Costa, two bills. 
 
 Approved, Lindslay v. Deafmdorf, 43 How., 
 
 90. 
 
 - V. Mayor, etc. of Troy, 4 Keyes, 261. Mu- 
 
 nicipal corporation, liability of. Distinguished, 
 Masterton v. Village of Mount Vernon, 58 N. Y., 
 391. 
 
 ■ T. People, 8 Wend., 183. Deed. Approv- 
 
 ed, White V. Williams, 48 N. Y., 344. 
 
 Wenzler v. People, 58 N. Y., 516. Constitutional 
 law. Followed, People v. Morgan, 58 N. Y., 
 679. 
 
 Wesley v. Bennett, 6 Abb., 12. Costs. Approved, 
 Bernhard v. Kapp, 11 Abb. N. S., 342. 
 
 West V. Trustees of Brockport, 16 N. Y., 161. 
 Officer's liability. Distinguished, Hover v. 
 Barkhoof, 44 N. Y., 113. 
 
 Westcotl V. Fargo, 6 Lans., 319. Carrier, limita- 
 tion of liability. Approved, Magnin v. Dins- 
 more, 56 N. Y., 168. 
 
 Westerlo v. De Witt, 36 N. Y., 340. Action. Dis- 
 tinguished, Taplin V. Wilson, 4 Hun, 244 Gift 
 Distinguished, Johnson v. Spies, 5 Hun, 468. 
 
 Westfall V. Gere, 3 Lans., 151. Reversed, 49 N. 
 Y., 349. 
 
 V. Preston, 49 N. Y., 349. Liability of 
 
 tax-collector. Distinguished, Bradley v. V^ard, 
 58 N. Y., 401. 
 
 Wetmore v. Campbell, 2 Sandf., 341. Burden of 
 proof. Approved, Weinberger v. Fauerbach, 14 
 Abb. N. S., 91 ; 4 Daly, 564. 
 
 V. Parker, 7 Lans., 121. Affirmed, 52 N. 
 
 Y., 450. 
 
 Wetzell V. Dinsmore, 4 Daly, 193. Reversed, 64 
 N. Y., 193. 
 
 Wheatun v. Baker, 14 Barb., 594. Rescission of 
 contract. Distinguished, Kinney v. Kieman, 
 49 N. Y., 164. 
 V. Gates, 18 N. Y., S95. Religious corpo- 
 ration. Approved, Madison Ave. Bapt. Church 
 V. Bapt. Church in Oliver St., 11 Abb. N. S., 
 132;46N. Y., 131. 
 
 Wheeler v. Allen, 49 Barb., 460. Affirmed, 61 N. 
 Y., 37. 
 
 V. Newbold, 16 N. Y., 892. Bona fide 
 
 holder. Followed, Moody v. Andrews, 39 N, 
 Y. Supr., 302. Broker, rights of. Approved, 
 Schepeler v. Eisner, 3 Daly, 11. 
 
 ■ V. Rochester 4r Syr. R. R. Co., 12 Barb., 
 
 227. Railroad farm crossings. Overruled, 
 Wademan v. Alb. and Susq. R. R, Co., 51 N. 
 Y., 568. 
 
 • V. Ruckman, 5 Rob., 702 ; 85 How., 850. 
 
 Affirmed, 61 N. Y., 391. 
 Wkitaker v. Desfosse, 7 Bosw., 678. Reference. 
 Overruled, Evans v. Kodbfleisch, 36 N. Y. Supr., 
 450. 
 
 ■ v. Eighth Ave. R. R. Co., 5 Rob., 650. 
 
 Reversed, 51 N. Y., 296. 
 V. Merrill, 28 Barb., 626. Directing ver- 
 dict subject to opinion of general term. Fol- 
 lowed, Wilcox V. Hock, 62 Barb., 509. 
 
 Whitbeck v. Cook, 16 Johns., 483. Covenant. 
 Approved, Buttenoorth v. Crawford, 3 Daly, 
 66. Distinguished, Rea r. Minkler, 6 Lans., 
 196. 
 
 V. Rowe, 25 How., 403. Setting aside sale. 
 
 Approved, Kellogg v. Howell, 62 Barb., 280. 
 ■ V. Waine, 16 N. Y., 532. Merger. Dis- 
 
 tinguished, Davis V. Lottich, 46 N. Y., i 
 White V. Howard, 62 Barb., 294. Affirmed, 46 
 N. Y., 144. Equitable conversion. Followed, 
 In matter of Fox, 63 Barb., 167 ; 52 N. Y., 530 ; 
 Hough V. Am. Bapt. Miss. Union, 46 N. Y., 
 682. 
 
 Madison, 26 N. Y., 117. Disburse- 
 
 ments by sheriff. Approved, Crofkt v. Brandt, 
 47 How., 263. Liability of assumed agent. 
 Distinguished, Dung v. Parker, 52 N. Y., 494. 
 
 V. McNett, 33 N. Y., 371. Married 
 
 women, liability of. Followed, Prendergast v. 
 Borst, 7 Lans., 489. 
 
 Munroe, 83 Barb., 650. Appealable 
 
 order. Held overruled by Duff's Case, 51 
 How., 860 ; Cent. National Bank v. Clarle, 34 
 N. Y. Supr., 488. 
 
 ■ V. Smith, 1 Lans., 269. Reversed, 46 N. 
 
 Y., 418. 
 
 622. 
 
 -, 6 Lans., 5. Affirmed, 64 N. Y., 
 
 V. Wager, 25 N. Y., 333. Married women, 
 
 rights of. Approved, Perkins v. Perkins, 7 
 Lans., 19 ; 62 Barb., 581. Deed from husband 
 to wife. Distinguished, Hunt v. Johnson, 44 
 N.Y.,27. 
 
 V. Williams, 48 Barb., 222. Reversed, 
 
 48 N. Y., 844. 
 
 Whitehead v. Buff, and Lake Huron R. R. Co., 18 
 How., 218. Action against foreign corpora- 
 tion. Distinguished, Prouty v. Mich. South, 
 and North. Ind. R. R. Co., 1 Hun, 656. 
 
 Whitney v. Allaire, 1 N. Y., 305. Rescission. 
 Followed, Harris v. Equitable Life Ms. Co.. 3 
 Hun, 724. 
 
 V. Groot, 24 Wend., 82. Guaranty. Dis- 
 
 tinguished, Oi'st V. Burlingame, 62 Barb., 351. 
 ■ V. Lewis, 21 Wend., 131. Defense. Dis- 
 
 tinguished, Sweetman v. Prince, 62 Barb., 256. 
 
 V. Snyder, 2 Lans., 477. Bona fide holder. 
 
 Approved, Head v. Smith, 44 How., 476. Note 
 obtained by fraud, validity. Approved, Chap- 
 man V. Rose, 47 id., 18. 
 
 V. Thomas, 23 N. Y., 281. Illegal tax. 
 
 Approved, National Bank of Chemung v. City 
 ofElmira, 53 N. Y., 49. Distinguished, Buff, 
 and State Line R. R. Co. v. Supervisors of Erie 
 Co., 48 id., 98. 
 
 Wibert v. New York and Erie R. R. Co., 19 Barb. 
 36. Liability of carrier. Disapproved, Ward 
 V. New York Cent. R. R. Co., 47 N. Y., 29. 
 
 Wilber v. Sisson, 58 Barb., 268. Affirmed, 54 , 
 N. Y., 121. 
 
 Wilcox V. Hawley, 81 N. Y., 648. Exempt prop- 
 erty. Followed, Reinecke v. Flecke, 85 N. Y. 
 Supr., 491. 
 
 V. Howell, 44 Barb., 396. Affirmed, 44 
 
 N. Y., 898. Estoppel. Followed, Eitel v. 
 Bracken, 38 N. Y. Supr., 7. 
 
 V. Rome, Wat. and Ogd. R. R. Co., 39 
 
 N. Y., 858. Contributory negligence. Fol- 
 lowed, Mitchell V. New York Cent, and Hud. 
 Riv. R. R. Co., 2 Hun, 535. 
 
 V. Wilcox 14 N. Y., 675. Jurisdictioa 
 
CASES CRITICISED. 
 
 Ivii 
 
 Approved, People ex rd. JBeilbronner v. Hosier, 
 14 Abb. N. S., 414. 
 
 Wilde V. Joel, 15 How., 329. Damages on in- 
 junction. Distinguished, Honey v. Rubber Tip 
 Pencil Co., 12 Abb. N. S., 860 ; 85 N. Y. Supr., 
 81 ; Allen v. Brown, 5 Lans., 511. 
 
 Wilkins V. Earle, 3 Bob., 852 j 19 Abb., 190. 
 Reversed, 44 N. Y., 172. 
 
 V. , 46 N. Y., 858. Judgment on 
 
 appeal. Explained, Richardson v. Kropf, 47 
 : How., 286. 
 
 Willard v. Eighth Ave. R. R. Co., 3 BosW., 814. 
 Eights of street railroad. Dictum overruled, 
 Adolph V. Cent. Park, etc. R. R. Co, 33 N. Y. 
 Supr., 186. 
 
 Williams' Case, 24 N. Y., 405. Local act. Held 
 obiter. People v. Davis, 61 Barb., 456. 
 
 Williams v. Cooper, 1 Hill, 637. Amendment. 
 Approved, Diamond v. Williamsburg Ins. Co., 4 
 Daly, 494. 
 
 V. Haines, 49 N. Y., 687. Power, when 
 
 exhausted. Followed, Smith v. Mayor, etc. of 
 New York, 47 How., 277 ; 1 Hun, 56. 
 
 -V. Irving, 47 How., 440. Eeversed, 1 Hun, 
 
 720. 
 
 ■ V. Lavyrence, 53 Barb., 820. AfBrmed, 47 
 N. Y., 462. 
 
 • V. Mechanics and Traders Fire Ins. Co, 54 
 
 N. Y., 677. Insurance. Followed, Williams 
 .. People's Fire Ins. Co., 57 N. Y., 274. 
 
 V. Murray, 32 How., 18. Costs. Obso- 
 
 j lete, Woodbury v. Morton, 44 How., 66 ; Crosby 
 ; V. Brown, id., 149. 
 
 ■ V. Peop/e, 24N. Y.,405. Locallaw, what 
 
 ' is. Approved, Healey v. Dudley, 5 Lans., 115, 
 Larceny from the person. Approved, Higgins 
 V. People, 7 Lans., 110. 
 
 • V. Smith, 2 Hill, 301. Bona fide holder. 
 
 Followed, Huffy. Wagner, 63 Barb., 215 
 
 • V. Starrs, 6 Johns. Ch., 363. Foreign ad- 
 
 ministrator, powers of. Approved, /Stone v. 
 Scripture, 4 Lans., 186. 
 
 ■ V. Tilt, 36 N. Y., 319. Bona fide holder. 
 
 Followed, Hargerv. TFtVson, 63 Barb. , 237. 
 ■ V. Townsend, 31 N. Y., 411. Purchase by 
 
 mortgagee. Followed, Ten Eyck v. Craig, 2 
 Hun, 452. 
 
 v. Walker, 2 Sandf. Ch., 225. Payment. 
 
 Distinguished, Doubleday v. Kress, 50 N. Y., 410. 
 ■V. Williams, 8 N. Y., 525. Bequest to 
 
 charitable use. In part approved, Wetmore 
 V. Parker, 7 Lans., 121 ; 52 N. Y., 450. Over- 
 ruled in part, Adams v. Perry, 43 N. Y.,487. 
 
 Williamson v. Brown, 15 N. Y., 854. Bona fide 
 purchaser. Approved, Reed v. Gannon, 50 
 N. Y., 345. Followed, Thomson v. Wilcox, 7 
 Lans., 876. 
 
 V. Tradesmans Fire Ins. Co., 1 Daly, 438. 
 
 ' Marine Court. Distinguished, Frank v. Ben- 
 ner, 3 Daly, 422. 
 
 Willis V. People, 32 N. Y., 715. Certiorari in 
 criminal cases. Approved, Graham v. People, 
 6 Lans., 149. 
 
 -^ V. Weaver, 1 Hun, 121. Reversed, 58 
 
 N. Y., 681. 
 
 Wilmerdings v. Fowler, 45 How., 142. Affirmed, 
 14 Abb. N. S., 249. Modified, 15 Abb. N. S., 86. 
 
 Wilmot V. Hurd, 11 Wend., 684. Warranty. 
 Followed, Shullv. Ostrander, 63 Barb., 130. 
 
 Wilson V. Britton, 6 Abb., 33. Motion papers. 
 Followed, Rawles v. Honre, 61 Barb., 266. 
 
 V. Holden, 16 Abb., 133. Damnges- for 
 
 failure to complete purchase. Approved, 
 Congregation Beth Elohim v. Central Presby. 
 Ch., 10 Abb. N. S., 484. 
 
 • V. Little, 2 N. Y., 443. Conversion of 
 
 pledge. Approved, Read v. Lambert, 10 Abb. 
 N. S., 428. 
 
 ■ V. Mayor, etc, 1 Denio, 595. Liability of 
 
 municipal corporation. Distinguished, Don- 
 ohue V. Mayor, etc. of New York, 8 Daly, 65. 
 ■ V. People, 4 Park, 619. New trial for 
 
 irregularity. Followed, People v. Gaffhey, 14 
 
 Abb.N. S.,36. 
 Winans v. Peebles, 32 N. Y., 423. Deed from 
 
 husband to wife. Distinguished, Hunt v. John- 
 son, UN.Y., 27. 
 Winchell v. Hicks, 18 N. Y., 558. Questions on 
 
 appeal. Distinguished, Low v. Hall, 47 N. Y., 
 
 104. 
 Winslaw V. Clark, 2 Lans., 377 ; 47 N. Y., 261. 
 
 Jurisdiction. Distinguished, Gilbert v. Priest, 
 
 14 Abb. N. S., 165 ; 65 Barb., 444. 
 Winston v. English, 44 How., 898. Affirmed, id., 
 
 498 ; 14 Abb. N. S., 119 ; 33 N. Y. Supr., 512. 
 Winter v. Kinney, 1 N. Y., 365. Bond taken 
 
 colore officii. Approved, Richardson v. Crandall, 
 
 48 N. Y., 348. 
 Wintermute v. Clark, 5 Sandf,, 247. Innkeeper. 
 
 Followed, Bernstein v. Sweeny, 33 N. Y. Supr., 
 
 271. 
 Wise V. Chase, 3 Rob., 85. Reversed, 44 N. Y., 887. 
 Witbeck V. Holland, 55 Barb., 443 ; 38 How., 278. 
 
 Affirmed, 45 N.Y., 13. 
 Withers V. New .Tersey Steamboat Co., 48 Barb., 
 
 455. Affirmed, 51 N. Y., 626. 
 Witty V. Matthews, 62 N. Y., 512. Liability to 
 
 repair. Followed, White v. Mealio, 37 N. Y. 
 
 Supr., 72. 
 Wolfv. Van Nostrand, 2 N. Y., 570. Extra allow- 
 ance. Explained, Dupuy v. Wurts, 47 How., 
 
 225 ; 1 Hun, 119. 
 Wolfe V. Burke, 7 Lans., 151. In part reversed, 
 
 56 N. Y., 115. 
 
 V. Goulard, 18 How., 64. Trade-mark. 
 
 Followed, Lea v. Wolf, 13 Abb. N. S., 389. 
 Wolstenholme v. Wolstenholme File Manuf. Co., 3 
 
 Lans., 464. Affirmed, 4 Hun, 427. 
 Wood V. Belden, 59 Barb., 549. Reversed, 54 
 
 N. Y., 658. 
 
 V. Henry, 40 N. Y., 124. Execution 
 
 against person. Explained and distinguished, 
 Church of the Redeemer v. Crawford, 14 Abb. 
 N. S., 200. Followed, S. C, 86 N. Y. Supr., 
 307. 
 
 ■ V. Jackson, 8 Wend., 9. Estoppel. Fol- 
 
 lowed, Candee v. Burke, 1 Hun, 546. Parol 
 evidence to apply judgment. Approved, Frantz 
 V. Ireland, 4 Lans., 278. 
 
 V. Moorehouse, 1 Lans., 405. Affirmed, 45 
 
 N. Y., 368. Execution. Followed, Marine 
 Bank of Chicago v. Van Brunt, 49 N. Y., 160. 
 Distinguished, Beard v. Sinnott, 38 N. Y. 
 Supr., 536. 
 
 v. People, 53 N. Y., 511. Indictment, 
 
 second offense. Distinguished, Gibson v. 
 People, 5 Hun, 542. 
 
 Robinson, 22 N. Y., 564. Bona fide pur- 
 
 chaser. Followed, Cary v. White, 52 N. Y., 138. 
 V. Wood, 2 Paige. 198. Bill of particu- 
 
 lars. Approved, Tillon v. Beecher, 48 How., 
 175. 
 
Iviii 
 
 CASES CRITICISED. 
 
 Woodburv v. Morton, 44 How., 56. Costa. Ap- 
 proved, McLaughlin v. Smith, 3 Hun, 250. 
 
 Woodgate v. Fleet, 11 Abb. N. S., 41. Validity 
 of trust deed. Followed, S. C, 3 Hun, 619. 
 
 Woodruff V. Dickie, 31 How., 164; 5 Rob., 619. 
 Amendment. Approved, Livermore v. Bain- 
 bridqe, 44 How., 357. Overruled, Diamond v. 
 Williamsburgh Ins. Co., 4 Daly, 494. Beferee, 
 powers of. Overruled, Hockstetter v. Isaacs, 
 44 How., 496. 
 
 Woodworth v. Bennett, 53 Barb., 361. Reversed, 
 43 N. Y., 273. 
 
 V. Sweet, 44 Barb., 268. Affirmed, 51 N. 
 
 Y.,8. 
 
 Woolley V. Wilbur, 4 Den., 570. Amendment in 
 justice's court. Approved, Jaycox v. Pinney, 
 62 Barb., 344. 
 
 Wooster V. Sherwood, 25 N. Y., 278. Conversion. 
 Distinguished, Gillett v. Roberts, 57 N. Y., 28. 
 
 Worster f. Forty-Second St. and Grand St. F. R. 
 R. Co., 3 Daly, 278. Affirmed, 60 N. Y., 203. 
 Negligence. Followed, Rockwell v. Third Ave. 
 R. R. Co., 64 Barb., 438. 
 
 Wright v. Douglass, 25 N. Y., 270. Pleading, 
 proof must be confined to. Approved, Car- 
 penter V. Goodwin, 4 Daly, 89. 
 
 V. Hunter, 46 N. Y., 409. Appeal from 
 
 order granting new trial. Followed, Downing 
 V. Kelly, 48 N. Y., 433 ; Kirkland v. Leary, 50 
 N. Y., 678 ; Arnold v. Robertson, id., 683. 
 
 ■ V. Miller, 8 N. Y., 9. Trust, validity of. 
 
 Approved, Foster v. Coe, 4 Lans., 63. 
 
 V. New York Cent. R. R. Co., 25 N. Y., 
 
 562. Master's liability for injury to servant. 
 Followed, Haskin v. N. Y. Cent, and H. R. R. 
 R. Co., 65 Barb., 129 ; Sizer v. Syr., Bing. and 
 N. Y. R. R Co., 7 Lans., 67 ; Ross v. N. Y. 
 Cent, and H. R. R. R Co., 6 Hun, 488. Dis- 
 approved, Laning v. Same, 49 N. Y., 621. Dis- 
 tinguished, Rose f. Boston and Albany R. R. 
 Co., 58 id., 217. 
 
 , 25 N. Y., 163. Land contract. 
 
 Distinguished, Foot v. Webb, 69 Barb., 38. 
 
 V. Wilcox, 19 Wend., 343. Master and 
 
 servant. Criticised, Rounds v. Del., Lack, and 
 W. R R. Co., 3 Hun, 329. 
 
 V. Wright, 59 Barb., 505. Affirmed, 64 
 
 N. Y., 437. 
 
 Wyatt T. Benson. 23 Barb., 327; 4 Abb., 182. 
 
 Religious corporation. Distinguished, JHadt- 
 
 son Ave. Bapt. Church v. Bapt. Church in Oliver 
 
 St., 11 Abb: N. S., 132; 46 N. Y., 131. 
 Wyckoff v. Myers, 44 N? Y., 143. Construction 
 
 of contract. Distinguished, Glacius v. Black, 
 
 50 N. Y., 146. 
 Wynehamer v. People, 13 N. Y., 378. Trial by 
 
 jury. Distinguished, Crouse v. Walrath, 41 
 
 How., 86. Constitutional law. Distinguished, 
 
 Phelps V. Racey, 60 N. Y., 10. 
 Wysham v. Prossen, 11 Johns., 72. Action for 
 
 seaman's wages. Distinguished, Fitzsimmons 
 
 V. Baxter, 3 Daly, 81. 
 Yale V. Dederer, 18 N. Y., 265. Married woman's 
 
 contract Followed, Hoffman v. Treadwell, 39 
 
 N. Y. Supr., 188. Distinguished, Quassaic 
 
 Nat. Bank of Newburgh v. Waddell, 1 Hun, 
 
 126. 
 Yates V. Olmsted, 65 Barb., 43. Modified, 56 N. 
 
 Y., 632. 
 Young v. Brush, 18 Abb., 171. Restitution. 
 
 Explained, Hall v. Emmons, 11 Abb. N. S., 
 
 436. 
 
 V. Bush, 36 How., 240. Discontinuance. 
 
 Approved, Wilder v. Boynton, 63 Barb., 647. 
 V. Catlett, 6 Duer, 441. Memoranda as 
 
 evidence. Followed, Thurman v. Mosher, 1 
 
 Hun, 344. 
 Younghause v. Fingar, 47 N. Y., 99. Notice of 
 
 appeal. Followed, Bixby v. Warden, 46 How., 
 
 239. 
 Youngs V. Kent, 2 Sweeny, 248. Reversed, 46 
 
 N. 'Y., 672. 
 V. , 46 N. Y., 672. Frivolous 
 
 pleading. Distinguished, Excelsior Savings 
 Bank v. Campbell, 48 How., 347 ; 2 Hun, 375. 
 ■ V. Lee, 18 Barb., 189. Bona fide holder. 
 
 Approved, Huff v. Wagner, 63 Barb., 215. 
 
 Zabriskie v. Smith, 13 N. Y., 322. Abatement of 
 action. Followed, Wade v. Kalbfleisch, 58 N. 
 Y., 282. 
 
 Zink V. Atterbury, 18 How., 108. Costs. Over- 
 ruled, Allis V.' Wheeler, 56 N. Y., 50. 
 
 Zinn, Matter of, 40 How., 461. Assignee in bank- 
 ruptcy, disqualification. Overruled, S. C, 43 
 How., 64. 
 
DiaEST 
 
 NEW YORK REPORTS 
 
 STATUTES. . 
 
T 
 
DIGEST 
 
 OF 
 
 NEW YOEK EEPOETS AND STATUTES. 
 
 ABANDONMENT. 
 
 See iNStiBAircE ; Marriage and Ditoece ; 
 Parent and Chii-d. 
 
 ABATEMENT. 
 See Legacy ; Nuisance ; Pleading. 
 
 ABATEMENT AND REVIVOR. 
 
 I. When ACTIONS ABATE 1 
 
 n. Revivor ; Practice ' 2 
 
 I. "When actions abate. 
 
 1. Against Corporation. Dissolution of a 
 corporation terminates an action then pending 
 against it, and unless continued by order of tiie 
 court substituting in its place its representatlre 
 or successor in interest, as required by ch. 295, 
 Laws of 1832, all subsequent proceedings against 
 it in the suit are void. Ct. App., 1874, McCul- 
 loch V. Norwood, 58 N. Y. (13 Sick.) 562; Rev'g 
 S. G.,.36 N. Y. Supr. (4 J. & Sp.) 180. 
 
 2. Section 121 of the Code, if applicable by 
 analogy to a dead corporation, does not author- 
 ize a continuance of an action against it to 
 judgment, witliout first bringing in the succes- 
 sor or representative in interest. lb. 
 
 3. Assault and battery. Upon reversal, on 
 appeal, of the judgment in an action for an as- 
 sault and battery against a defendant who has 
 died since the trial, a new trial should not be 
 ordered, the cause of action not being one that 
 survives. Ct. App., 1869, Comstock v. Dodge, 43 
 How. 97. 
 
 4. Under the provisions of section 121 of the 
 Code, an action to recover damages for a purely 
 personal wrong, such as an assault and battery, 
 does not abate by the death of the plaintiff 
 
 after verdict in his favor. Such verdict is prop- 
 erty, which passes to the representatives. Ct. 
 App., 1871, Wood V. Phillips, 11 Abb. N. S. 1. 
 
 5. If sucli verdict has been set aside, wliether^ 
 before or after the death of the plaintiff, his rep" 
 resentatives are entitled to prosecute an ap- 
 peal or other remedy for the purpose of restor- 
 ing it; but whether they can continue the 
 action after the order for a new trial has be- 
 come final, query t lb. 
 
 6. Breach of promise to marry. An ac- 
 tion for breach of promise to marry is not simply 
 an action on contract, but it partakes of the 
 nature of an action for a tort or injury to tlie 
 person ; and the cause of action does not sur- 
 vive the death of tlie defendant, occurring while 
 tlie action is undetermined, nor can it be con- 
 tinued against tlie executor or administrator. 
 Brooklyn City Ct. Sp. T., 1873, Wade v. Kalb- 
 fleisch, 15 Abb. N. S. 16 ; aff'd S. C, 58 N. 
 Y. (18 Sick.) 282. 
 
 7. Tlie causes of action whicli survive, under 
 the common law, as modified by the statutes of 
 tliis State, are such as concern property. lb. 
 
 8. Libel. An action for libel abates upon the 
 death of the defendant before final judgment ; 
 and the plaintiff is not entitled to an order con- 
 tinuing it against the executor of the deceased 
 defendant, because the cause of action does not 
 survive or continue. Sup. Ct., 1873, More v. 
 Bennett, 65 Barb. 338. 
 
 9. Penal Action. An action against trus- 
 tees of a manufacturing corporation, to enforce 
 their personal liability on the ground of tlieir 
 failure to publish an annual report as required 
 by law, is penal in its nature, and does not sur- 
 vive against the personal representatives of a 
 deceased trustee. Davis, J., dissents. Sup. Ct., 
 1875, Bank of Califymia v. Collins, 5 Hun, 209. 
 
 10. Trespass. An action against the indem- 
 nitors of a sheriff, to recover damages for his 
 taking and carrying away the plaintiff's goods 
 under process against a third person, would 
 have been known under the old practice as an 
 action of trespass, and such action survives 
 
ABATEMENT AND REVIVOR. 
 
 after the death of a defendant, it being one 
 which, under the Revised Statutes (2 Edra. 
 Stats. 118, 467), may be maintained against ex- 
 ecutors and administrators of a deceased wrong- 
 doer. N. Y. Supr. Ct., 1872, Heinmuller v. Gray, 
 44 How. 260 ; S. C, 13 Abb. N. S. 299 ; 36 N. Y. 
 Supr. (3 J. & Sp.) 196. 
 
 11. Upon the deatli of one of tlie defendants 
 in such a suit, it may be revived and continued 
 against the representatives of the deceased, but 
 as a separate action. lb. 
 
 II. Eevitok ; Practice. 
 
 12. Action against assignee. In a pro- 
 ceeding under ch. 838, Laws of 1872, to revive 
 against tlie personal representatives of a de- 
 ceased assignee, proceedings which were pend- 
 ing at tlie time of liis death, the same may prop- 
 erly be revived against a trustee appointed by 
 the court to execute the trust and the adminis- 
 tratrix of the deceased. Sup. Ct., 1873, In the 
 Matter of Grove, 64 Barb. 526. 
 
 13. That act applied to cases where the as- 
 signee liad died previous to its passage. lb. 
 
 14. Against surviving defendants. If one 
 of several defendants dies, pending the suit, an 
 order reviving it against his personal represen- 
 tatives does not affect a substantial riglit, be- 
 cause, if the cause of action does not survive 
 against tliem, that objection is available on tlie 
 trial ; and if it does, but a joint judgment can- 
 not be rendered against them and the survivors, a 
 separate judgment may be rendered against 
 either, or the court may direct that the plaintiff 
 proceed separately against each class of defend- 
 
 k ants. Ct. App., 1875, Arthur v. Griswold, 60 N. 
 Y. (15 Sick.) 143; S. C, below, 2 Hun, 606. 
 
 15. An action against defendants jointly liable 
 on contract, does not abate by the death of one 
 or more of them ; but the deatli should be sug- 
 gested on the record, and the action proceed 
 against the survivors alone. The personal re- 
 presentatives cannot be joined as defendants in 
 such a case. Sup. Ct., 1875, Livermore v. Bush- 
 nell, 5 Hun. 285. 
 
 16. Fraud. An action to recover damages for 
 fraudulent representations, whereby plaintiff 
 was induced to purchase stock of a corporation, 
 does not abate upon the death of a defendant, 
 but may be continued against his personal rep- 
 resentatives. Sup. Ct., 1875, Bond v. Smith, 4 
 Hun. 48. 
 
 17. Upon the death of one of several defend- 
 ants in such an action, the action may properly 
 be separated and continued as two actions, one 
 against the survivors, and the other against the 
 personal representatives of the deceased. lb. 
 
 18. In such a case, whore the plaintiff has 
 been partially examined as a witness, an order 
 providing that every act and proceeding done or 
 taken in the cause previous to the decease of 
 the party defendant shall be valid and of like 
 force and effect in each of the separate actions 
 as if they had been separately brought and pros- 
 ecuted, is too broad, and should be modified to 
 allow an application to strike out such parts of 
 plaintiff's testimony as would be incompetent 
 against the personal representatives of the de- 
 ceased defendant. lb. 
 
 19. Continuance by defendant's repre- 
 sentatives. An action in which the defendant 
 has interposed as a counterclaim a cause of ac- 
 tion which by law survives to his legal repre- 
 sentatives, does not abate upon the death of 
 such defendant, but may be continued by such 
 representatives ; and they may mov« under 
 
 § 121 of the Code for that purpose. Sup. Ct. Sp. 
 T., 1871, Livermore v. Bainbridye, 4Si How. 53 ; 
 Aff'd S. C, 43 How. 272 ; 61 Barb. 368 ; 49 N 
 Y. (4 Sick.) 125. 
 
 20. The proper construction of that section, 
 and the ri'glit rule of practice is, that the repre- 
 sentatives of either party having an interest in 
 the suit, may have an order to continue it. lb. 
 
 21. By partners. Ordinarilj' a cause of 
 action in favor of two partners or joint contract- 
 ors, upon the death of one of them, survives to 
 the other, and an action previously commenced 
 on such cause cannot be continued in the name 
 of the personal representative of the deceased, 
 nor can such representative be joined with the 
 survivor ; yet, where a judgment recovered by 
 two partners has been satisfied against the one 
 who survives, and not as against the deceased, 
 it may be continued in the name of the person- 
 al representative of the latter. Sup. Ct., 1870, 
 Hackett v. Belden, 10 Abb. N. S. 123; S. C, 40 
 How. 289. Questioned. S. C, 47 N. Y. (2 
 Sick.) 624. 
 
 22. Successor. In case of the death of a 
 sheriff pending an action in his name under 
 § 238 of the Code, the action should be contin- 
 ued in the name of his successor in office, as pro- 
 vided by § 14, 2 E. S. 388 (2 Edm. Stats. 403), 
 and not in the name of his personal representa- 
 tives or of the claimant for whose benefit the 
 action was brought. Sup. Ct. Sp. T., 1870, 
 Orser v. Glenville Woolen Co., 11 Abb. N. S. 85 ; 
 S. C, 60 Barb. 371. 
 
 23. Transfer of interest. An action does 
 not abate upon the assignment and transfer of 
 plaintiff's interest during its pendency, but it 
 may, at the option of the transferee, be contin- 
 ued in the name of the original plaintiffs for his 
 benefit, or he may be substituted in their place. 
 N. Y Supr. Ct., 1874, Arnold v. Keyes, 37 N. Y. 
 Supr. (5 J. & Sp.) 135. 
 
 24. After the lapse of one year from the 
 death of the plaintiff in a judgment, the remedy 
 presented by the Code for revival of judgment 
 and leave to issue execution is by action and 
 not by motion ; but an order reviving a suit and 
 authorizing an execution to issue, made on a 
 motion by the executor, is not void as against 
 the defendant, and persons not parties to the 
 record cannot take advantage of irregularities. 
 Sup. Ct. Cir., 1872, Nims v. Sabine, 44 How. 252. 
 
 25. Another remedy. A motion by the ex- 
 ecutor of a defendant in an action in which an 
 injunction obtained by the plaintiff had been 
 dissolved, to revive such action for the purpose 
 of having the damages computed,— fleW, properly 
 denied, because the executor could secure aU 
 his rights by an action on the undertaking given 
 to obtain the injunction. Sup. Ct., 1874, Griss- 
 ler v. Stuyvesant, 1 Hun, 116. 
 
 26. Discretionary. The Code has placed 
 cases of supplemental revivor, and supplement, 
 and mere revivor, all upon the same footing as 
 to practice; and to file a supplemental complaint 
 in either case, leave of court is necessary ; and 
 the court has power to deny the revivor and 
 continuation applied for on supplemental com- 
 plaint. Sup. Ct., 1873, Beach v. Reynolds, 64 
 Barb. 606 ; Aff'd S. C, 53 N. Y. (8 Sick.) 1. 
 
 27. The right of the representatives of a de- 
 cea'sed party to continue an action pending at 
 his death is not absolute, but rests in the legal 
 discretion of the court to which application for 
 leave is made. lb. 
 
 28. A long delay in making the application, 
 unexcused, constitutes laches, and is a valid 
 reason for refusing the leave asked. The policy 
 
ABDUCTION— ACCORD AND SATISFACTION. , 
 
 of the statute of limitations is applicable to the 
 proceedings. lb. 
 
 29. The delay of plaintiff's representatives, 
 for more than twenty-two years after the death 
 of the plaintiff, to apply for a reyiral of the 
 suit, — Held, to be a bar to the application, not- 
 withstanding the alleged insolvency of the de- 
 fendants during the greater portion of that 
 time, and notwithstanding their neglect to take 
 any measures to have it revived or abated. lb. 
 
 30. Stipulation as to. The authority of 
 counsel to stipulate, as a condition of the cause 
 going over tlie term, that in case of the death 
 of the plaintiff before final judgment, the cause 
 of action sliall survive, and not abate by his 
 death, cannot be Inferred from liis employment, 
 but must be proved. Wliether, if authorized by 
 tlie defendant, it would be valid, queru 1 Sup. 
 Ct., 1875, Cox V. N. Y. Cent. %■ Hud. Riv. R. R. 
 Co., 4 Hun, 176. 
 
 31. After verdict. A verdict once obtained 
 will not prevent an action from abating by the 
 death of a party, under section 121 of the Code, if 
 sucli verdict has been set aside, it being tlien 
 as if no verdict had ever been rendered, James, 
 J., dissents. lb. 
 
 ABDUCTION. 
 
 1. Action for. A parent cannot maintain 
 an actiotr against an agent of tlie Children's 
 Aid Society to compel a return of his minor 
 son, and for damages, where it appears that 
 sucli agent used no unlawful enticement or so- 
 licitation, but that, bemg deceived by tlie false 
 representations of the boy as to his name, his 
 orphanage and his destitution, sent him to a 
 home in the west ; even though he may have 
 been negligent as to making inquiries as to the 
 truth of the boy's storv. Brooklyn City Ct. 
 Sp. T., 1872, Nash v. Douglass, 12 Abb. N. S. 
 187. 
 
 ABORTION. 
 
 See Chap. 181, Laws of 1872, amending pre- 
 vious laws. 
 
 ABSENT AND ABSCONDING DEBTORS. 
 See Pkactice ; Attachment. 
 
 ACCORD AND SATISFACTION. 
 
 1. Acceptance of another as debtor. 
 
 Where a creditor agrees to accept third parties 
 for the payment of his debtor's note, such par- 
 ties having the debtor's money to a sufficient 
 amount to pay it, the agreement will discharge 
 the debt by way of accord and satisfaction. 
 Sup. Ct., 1874, Van Etten v. Troudden, 1 Hun, 432. 
 
 2. Action for part of entire demand. 
 Where an actio;., commenced for part only of 
 an entire subsisting cause of action, was volun- 
 tarily settled by stipulation, fixing the amount 
 of the " plaintiff's claim " in that action and pro- 
 viding for the entry of judgment therefor, with 
 costs, upon default in paying the same accord- 
 ing to the terms specified; — Held, that such 
 
 stipulation and payment according to its terms, 
 constituted a good accord and satisfaction of 
 the entire demand. Ct. App., 1871, O'Beirne v. 
 Lloyd, 43 N. Y. (4 Hand,) 248. 
 
 3. Claim released. Where the owner of a 
 mortgage verbally agreed with the mortgagor 
 to discharge it if the latter would discharge a 
 disputed claim against a third person in favor 
 of an estate of which such mortgagor was, by 
 will, the sole beneficiary, and the latter accord- 
 ingly, with the approval of the executor, gave 
 a receipt for the claim, and released and indem- 
 nified the executor, — Held, that this amounted 
 to an accord and satisfaction, and equity would 
 hold the mortgage satisfied and discharged. 
 Sup. Ct. 1872, Griswold v. Griswold, 7 Lans. 72. 
 
 4. Payment of a less sum than is admitted 
 to be due is not good as an accord and satisfac- 
 tion, and will not bar a suit for the balance, al- 
 though evidenced by a receipt expressing pay- 
 ment in full of all demands. Sup. Ct. Sp. T., 
 
 1873, Williams v. Irving, 47 How. 440. 
 
 6. But where there is a bona fide dispute be- 
 tween the parties as to their rights, and they 
 agree on a sum to be paid by one to the other, 
 which is paid accordingly, they are bound by 
 it, upon the principle that they have ascertained 
 their rights and effected a settlement upon that 
 basis. lb. 
 
 6. Where a judgment for $14,000, taken by 
 default, had stood for over eighteen years, 
 when the defendant was brought up for exam- 
 ination on supplementary proceedings, and in 
 an interview with the plaintiff disputed the 
 judgment and alleged that it was a fraud, but, 
 finally, rather than have any further contro- 
 versy, offered to pay, and the plaintiff accepted 
 and received $1,000, in full settlement and sat- 
 isfaction and discharge of the judgment and all 
 demands,— ^eW, that the defendant was entitled 
 to an order setting aside the supplementary 
 proceedings and declaring the judgment dis- 
 charged, although it had been subsequently 
 assigned. -lb. The order modified and a ref- 
 erence ordered to take proof as to the 
 compromise and report. S. C. 1 Hun, 
 720. 
 
 7. The payment of a lesser sum for a greater, 
 without any additional consideration, benefit 
 or advantage to the creditor, does not amount 
 to an accord and satisfaction, though accepted 
 in full for the debt, and will not bar a subse- 
 quent action to recover the balance. N. Y. C. 
 P., 1869, Blum v. Hartman, 3 Daly, 47. 
 
 8. Where one holding a policy of insur- 
 ance for $500 on his dwelling, $600 on his 
 barn, and $400 on the contents of the barn, 
 lost the barn and contents by fire, and upon re- 
 ceipt of the amount insured on the contents, 
 the claim for which was undisputed, gave a 
 writing acknowledging the same as received in 
 full satisfaction of the loss sustained on the 
 policy " canceling $1,500 on said policy ; " — 
 Held, that this was no release, and that the as- 
 sured was not thereby precluded from bringing 
 an action for the loss upon the barn. Ct. App., 
 
 1874, Redfield v. Holland Purchase Ins. Co., 56 
 N. Y. (11 Sick.) 354. 
 
 9. Where, at a meeting of a religious 
 society, the pastor stated that he was author- 
 ized by B, the treasurer, who was present, to 
 say that there was a large deficiency in the 
 revenues ; that his accounts were not made up, 
 and he could not state the exact amount ; but 
 that, if $2,300 was raised, B would accept it in 
 full settlement of his accounts against the so- 
 ciety ; and that amount was thereupon raised 
 
ACCOUNT BOOKS— ACTIONS. 
 
 by subscription and paid to B, — Held, that it 
 was a good accord and satisfaction, the demand 
 being uncertain in amount. Sup. Ct., 1872, 
 Brett V. First Un. So. of Brooklyn, 63 Barb. 610. 
 
 10. Part payment and tender. Wliere a 
 plaintiff consented to and did discontinue liis 
 action in consideration that tlie defendant 
 sliould pay a draft in favor of his attorney and 
 tlie costs of suit, and tlie defendant paid the 
 draft anil at tlie same time tendered the amount 
 of tlie costs, — Held, that this was a simple un- 
 e.'tecuted accord, and was not a satisfaction. 
 Com. App., 1872, Noe ,. Christie, 51 N. Y. (6 
 Sick.) 270. 
 
 11. Receipt of bill of exchange. Although 
 an agreement to receive from the debtor in full 
 satisfaction of a liquidated demand, a less sum 
 than is due, is without consideration and void, 
 yet an agieement to receive some other thing, 
 sucli as the bill of exchange of a third party, or 
 the actual receipt of such bill. Is a sufficient 
 consideration for the discharge of the debt. 
 Sup. Ct., 1872, Bliss V. Swmtz, 7 Lans. 186 ; S. 
 C, 64 Barb. 216. S. P. Howard v. Norton, 66 
 Barb. 161. 
 
 12. It does not affect the validity of such 
 discharge that the debtor also gave his own 
 note for a part of the sum agreed to be re- 
 ceived, lb. 
 
 13. Receipt of surplus. The receipt by 
 the owner of property, from the tax collector, 
 of the surplus moneys arising upon a sale of his 
 property, for a tax illegally assessed, does not 
 amount to a condonation or an accord and sat- 
 isfaction of the trespass. Ct. App., 1872, West- 
 fall V. Prestort ; and Same v. Gere, 49 N. Y. (4 
 Sick.) 849. 
 
 ACCOUNT BOOKS. 
 See Evidence. 
 
 ACCOXINTS. ACCOUNTING. 
 
 1. Account stated, ivhen conclusive. 
 
 An account stated is held conclusive against 
 the party who receives it and does not object to 
 it, on the ground that he thereby acquiesces in 
 its correctness. As to the party who furnishes 
 it, generally it is to be considered as correct; 
 but it is, nevertheless, open to explanation for 
 any omissions or mistakes. N. Y. Supr. Ct., 1871, 
 Schettler v. Smith, 34 N. Y. Supr. (2 J. & Sp.) 17. 
 
 2. In order to make an account, ren- 
 dered by one party to another, so far conclu- 
 sive upon the latter that he can impeach it 
 only for fraud or mistake,' there must be proof, 
 in some form, of an express or implied assent 
 thereto on his part. Com. App., 1873, Stenton 
 V. Jerome, 54 N. Y. (9 Sick.) 480. 
 
 3. The statement of an account is not 
 conclusive, but simply throws upon the party 
 claiming error the onus of proving it. Ct. App., 
 1873, Mass. Life Ins. Co. v. Carpenter, 49 N. Y. 
 (4 Sick.) 668 ; Aff'g S. C, 2 Sweeny, 734. 
 
 ■ 4. It is not absolutely conclusive upon the 
 parties, unless there have been mutual com- 
 promises which operate as an estoppel in pais. 
 N. Y. C. P., 1871, Kock v. Bonitz, 4 Daly, 117. 
 
 5. On one side. It is not necessary, in an 
 account stated, that there should be mutual or 
 cross demands. ^They may be all on one side, 
 or consist of charges and acknowledgrnents of 
 payment; and a simple reading over of the 
 
 items and the striking of a balance, or agree 
 ment upon the amount due, is sufficient. lb. 
 
 6. Action for accounting. Under a com 
 plaint which alleges a partnership between plain 
 tiffs and defendant, and that the plaintiffs ad 
 vanced money to enable the defendant to carry 
 on a certain business, under an agreement that 
 they should receive a certain share of the net 
 profits, and be repaid such advances with inter- 
 est, and that defendant has received large sums 
 in such business and refuses to account therefor 
 or to pay over the plaintiff's share, an account- 
 ing may be decreed although the allegation of 
 partnership is not sustained. N. Y. Supr. Ct., 
 1874, Arnold v. AngeU, 38 N. Y. Supr. (6 J. & 
 Sp.) 27. 
 
 7. By joint owners. Where two parties, 
 jointly interested in a contract for the purchase 
 of lands, made an actual partition between them- 
 selves and occupied accordingly until the death 
 of oqc, when thi other entered upon the whole, 
 claiming the entire title, an action will lie by the 
 representatives of the former to compel an ac- 
 count for the rents and profits during the occu- 
 pation of the latter. Ct. App. 1871, Taylor v. 
 Taylor, 43 N. Y. {4 Hand,) 678. 
 
 8. The question, whether either party had 
 the right of possession as against the vendor, 
 will not affect such action, each having as 
 against the other the right to exclusive posses- 
 sion of the portion allotted him. lb. 
 
 9. By quasi partner. One W, after em- 
 ploying one clerk for a compensation fixed at 
 one-half of the net profits of the business, en- 
 gaged another, who was to receive one-third of 
 the net profits, and subsequently, without the 
 knowledge of the first, purchased of the second 
 clerk, all his interest, past and prospective, in 
 the business, the books being kept as before, 
 but such clerk actually receiving only a certain 
 agreed sum per week, — Held, in an action by the 
 first named clerk for an accounting, that, as to 
 prospective profits, the purchase by W must be 
 deemed for the benefit of the concern, and he 
 could charge in the expense account only the 
 sums actually paid the other clerk for his ser- 
 vices. Com. App., 1872, Amaru v. Wood, 51 N. Y. 
 (6 Sick.) 644. 
 
 10. By party entitled to subrogation. 
 Where a person holding securities collateral to a 
 debt due him, to which another has a right of sub- 
 rogation, fails to realize therefrom the full amount 
 of interest due upon them, and it appears af- 
 firmatively that he might have done so, he is 
 liable to account to such other for the amount 
 of the deficiency. Ct. App., 1874, Cory v. Leon- 
 ard, 66 N. Y. (11 Sick.) 494. 
 
 ACKNOWLEDGMENT OF DEEDS. 
 
 1. Form of certificate. A certificate of 
 acknowledgment taken in 1828, under 1 R. S., 
 369, §§ 1, 2, stating that the persons acknowl- 
 edging were known to the officer " to be the 
 persons who executed" the deed, is a substan- 
 tial compliance with that statute, and sufficient 
 in form. Ct. App., 1871, West Point Iron Co. v. 
 Beymert.iS N. Y. (6 Hand,) 703. 
 
 ACTIONS. 
 
 L Geitebal Fbikcifues 4 
 
 1. In general. 
 
ACTIONS. 
 
 2. When will lie. 
 8. Wlien will not lie. 
 
 4. Given by statute. 
 
 5. Against public officers, 
 
 6. Splitting causes of action, 
 
 7. Election of remedies. 
 
 8. Local or transitory. 
 
 9. Demand or tender before action. 
 
 n. Parties to Actions 18 
 
 1. Contract made by agent. 
 
 2. Real party in interest. 
 S. Trustee of express trust. 
 
 4. Public officers. 
 
 5. Promise for benefit of third party. 
 
 6. On covenants. 
 
 7. Partners and tenants in common. 
 
 8. Shareholders in corporations and joint 
 
 stock associations. 
 
 9. Husband and wife. 
 
 10. Assignees in bankruptcy, Sfc. 
 
 11. Parties to same instrument. 
 
 12. Miscellaneous cases in contract. 
 
 13. Miscellaneous cases in tort. 
 
 14. Equitable actions, 
 
 I. Geitesal Fbikciples. 
 1. In general. 
 
 1. Acts sanctioned by the State. Where 
 one lias the sanction of tlie State for what lie 
 does, unless lie commits a "fault in the manner 
 of doing it, he is not liable to an action for the 
 consequences thereof. Sup. CU 1876, Conhoc- 
 ton Stone R. Co. v. Buffalo, N. Y. ^ E. R. R. 
 Co., 3 Hun, 623. 
 
 2. Easement. The remedy of a party for in- 
 terference with his riglit to use the waters of' a 
 well, if claimed to be on his own land, is at law ; 
 if on another's land, it is in equity. Sup. Ct, 
 1872, Appelgate v. Morse, 7 Lans. 69. 
 
 3. Law or equity. The administration of 
 legal and equitable actions in the Supreme Court 
 is now, as it was before, as perfectly distinct as 
 it was when remedies were to be sought in dif- 
 ferent courts. If the plaintiff's form of action 
 is in equity, he must maintain it upon equitable 
 grounds, or fail, even tliough he may prove a 
 good action at law. Sup. Ct., 1872, Bailey v. 
 Southwick, 6 Lans. 366. 
 
 4. 'When right accrues. Where it appears 
 from the terms of an agreement or tlie nature 
 of the case, that tlie things to be done by tlie 
 parties respectively, were not intended to be 
 concurrent acts, but the performance of one was 
 to precede that of the other, an action may be 
 brought against him who was to do the first act, 
 though nothing has been done or offered by the 
 other partj'. Com. App., 1872, Meriden Brit- 
 tania Co. v. Zingsan, 48 N. Y. {3 Sick.) 247 ; Aff'g 
 S. C, 4 Rob. 312. 
 
 5. Wiiere an agreement, while creating a lia- 
 bility, declares that its amount shall be estab- 
 lished upon certain bases, through the agency of 
 arbitrators, whose decision sliall be final and ob- 
 ligatory, tlie determination and adjustment of 
 the amount in the manner specified is, in tlie ab- 
 sence of fraud, a condition precedent to a right 
 of action on the contract. Ct. App., 1872, Prest., 
 etc. Delaware ^ Hud. Canal Co. v. Pa. Coal Co., 
 50 N. Y. (5 Sick.) 250. 
 
 6. Where, upon a sale of land, one payment 
 is to be made upon the organization of a com- 
 pany for manufacturing peat thereon,, in which 
 both parties are to be interested, the condition 
 is complied with and a right of action for the 
 money accrues upon an organization being ef- 
 fected in which the associates have rights and to 
 
 which thej' owe obligation, although all the 
 forms of a statutory organization are not com- 
 plied with. Ct. App., 1871, ChUds v. Smith, 46 
 N. Y. (1 Sick.) 34 ; Rev'g S. C, 38 How. 328 ; 56 
 Barb. 45. 
 
 7. Where the purchaser of goods is allowed 
 to sell them on a reasonable credit and pay for 
 theiti when he receives his money from the ven- 
 dees, a right of action accrues, on the expiration 
 of the credit given, although the purchaser's ven- 
 dees may not have paid. Ct. App., ;871, Selten- 
 reich v. Hietnentz, 46 N. Y. (1 Sick.) 677. 
 
 8. 'When commenced. An action by a 
 sheriff to collect a claim attached by him must 
 be deemed commenced only at the date of the 
 service of summons therein ; not at the date 
 when the claim was attached, which is a sepa- 
 rate proceeding. N. Y. Supr. Ct., 1875, O'Brien 
 V. Commercial F. Ins. Co., 88 N. Y. Supr. (6 J. 
 & Sp.) 517. 
 
 2, When vnll lie, 
 
 9. For accounting. Where parties owning 
 oil lands combine to organize a company, of 
 which they are to be stockholders, and to which 
 they are to sell their lands at a large advance 
 from cost, dividing the profits, bona fide sub- 
 scribers to the company wlio were induced to 
 become so by false representations of the asso- 
 ciates and their agent, that tliey were to get the 
 lands at original cost, and that they were to come 
 in on an equality with the others, can maintain 
 an action against such' associates to compel them 
 to account for the profits realized on such lands 
 and to recover their proportionate sliares thereof. 
 Com. App., 1873, Getty v. Develin, 64 N. Y. (9 
 Sick.) 403. 
 
 10. In such case, however, the lands having 
 been turned over to the company, and a portion 
 sold on execution against it, — Held, that the 
 plaintiffs could not recover the whole amount 
 subscribed by them ; they not being able to place 
 defendants in tlie same position in which they 
 were before the transfer. lb. 
 
 11. Whether or not, defendants having dis- 
 tributed the stock of the company as well to 
 the bogus subscribers, themselves inclusive, as 
 to bona fide ones, should be made to account 
 for all the subscriptions as if paid ; and whether 
 or not there should be a redistribution of the 
 stock among the bona fide subscribers alone, not 
 decided. lb. 
 
 12. To ascertain boundaries. An action 
 will lie in equity to ascertain and fix the bound- 
 ary lines between the lands of parties, when they 
 are confused, and there are peculiar equities 
 attaching themselves to the controversy ; or 
 when it will prevent a multiplicity of suits. Sup. 
 Ct., 1872, Boyd v. Bowie, 66 Barb. 237. 
 
 13. On agreement to correct settlement. 
 An agreement made by one of the parties to a 
 settlement, that if there was any deficiency in 
 the quantity of lumber for which he was allowed 
 on such settlement, he would make it good, is 
 not merged in the settlement if made after its 
 conclusion thougli at the same interview ; but iin 
 action will lie thereon to recover the amount of 
 such deficiency. Sup. Ct., 1872, Smith v. Holland, 
 61 Barb. 838. 
 
 14. — to make right. Where a father having 
 made a gift of real estate to his daugliter, after- 
 ward induced her by a promise " to make it all 
 right," to convey the same to a third person in 
 part payment for a farm purchased by the father 
 in his own name, — Held, that, in the absence of 
 evidence that she intended to give the property 
 
6 
 
 ACTIONS. 
 
 to her father, or that he so understood it, he 
 instantly tliereupon became indebted to her for 
 the value thereof, and she could maintain an 
 action against him for such value. Sup. Ct., 1873, 
 Shrader v. Bouker, 65 Barb, 608. 
 
 15. For amount of counterfeit bill. A 
 bank wliich cashes checks drawn in favor of a 
 customer on another bank, is liable to such 
 customer or his assignee for the amount of a 
 counterfeit bank bill, paid on account of such 
 checks. N. Y. C. P., 1870, Mun-ay v. BuU's Head 
 Bank, 3 Daly, 364. 
 
 16. To cancel satisfaction. Where a chat- 
 tel mortgage, after default, was canceled and a 
 bill of sale taken in its stead, the mortgagor 
 fraudulently concealing the fact that there were 
 subsequent existing mortgages upon the property, 
 tlie mortgagee may maintain an action against 
 such mortgagor and the junior mortgagees, to 
 cancel the satisfaction and restore the lien of his 
 mortgage. . N. Y. Supr. Ct., 1869, Lambert v. 
 Leland, 2 Sweeny, 218. 
 
 17. — securities. A party to a bill or accept- 
 ance which is void in the hands of the holder, 
 for usury, can maintain an action for the cancel- 
 lation and surrender thereof. N. Y. Supr. Ct., 
 1873, Taylor v. Grant, 35 N. Y. Supr. (3 J. & Sp.) 
 353. 
 
 18. — tax certificate An action will lie to 
 set aside and annul a tax certificate of sale, 
 where the detect complained of is in the assess- 
 ment, and does not appear upon the face of the 
 proceedings. Com. App., 1872, Newell v. Wheeler, 
 48 N. Y. (3 Sick.) 486. 
 
 19. On compromise. An action will lie for 
 the non-performance of an agreement made as a 
 compromise of a real and substantial matter of 
 dispute and controversy. Sup. Ct., 1874, Organ 
 v. Steward, 1 Hun, 411. RevM by Ct. App. 
 
 20. For construction of agreement. A 
 railroad company of this State, which has leased 
 its roail for a term of years to a corporation of 
 another State, cannot upon an action being com- 
 menced against it by the attorney-general to 
 have its charter declared forfeited on the 
 ground that the agreement was illegal, maintain 
 an action against the foreign corporation to 
 obtain a decision as to the legality of such agree- 
 ment, and for the recovery of the possession of 
 their road if it be adjudged illegal. Sup. Ct., 
 1875, Ogd. ^ Lake Champlam R. R. Co. v. Vt. Sf 
 Canada R. R. Co., 4 Hun, 712. 
 
 21. On contract. Where a party who has ex- 
 ecuted a written contract, by which he acknowl- 
 edges a certain sum to be due from him, the 
 time for payment of which is left to be arranged 
 after the consummation of another contract to be 
 made with a third party, repudiates the whole 
 agreement, an action to recover the money so ad- 
 mitted to be owing can be maintained immedi- 
 ately. Ct. App., 1867, Lee. v Decker,.4:3 How. 479 
 
 22. — for building. Under a building contract, 
 providing that the last payment shall be made 
 on., production of a certificate of the architects 
 that the work is completed, such certificate is 
 conclusive upon the parties, unless obtained by 
 fraud or mistake, and will support an action on 
 the contract for such payment. Ct. App., 1870, 
 Wyckoffv. Meyers, 44 N. Y. (5 Hand,) 143. 
 
 23. Where no form is specified, a certificate 
 that " the last payment is due as per contract," 
 is sufficient. lb. 
 
 24. — to share costs. The delivery to an 
 attorney with a request to act as counsel, by a 
 ■portion of the signers calling themselves a com- 
 mittee, of an agreement by parties having a 
 common interest in the decision of a legal ques- 
 
 tion, whereby they agree to share the costs, 
 equally divided, of employing counsel and"bring- 
 ing their cases before the courts, gives such 
 attorney no right of action against any of the 
 other signers, without proof of their assent. Ct. 
 App., 1871, Smith v. Duchardt, 45 N. Y. (6 Hand,) 
 697. 
 
 25. — not mutual. One who has performed 
 that upon condition of which the promise of 
 another was made, may recover upon such prom- 
 ise, although there was at the time no mutual 
 promise on his part and no valid consideration, 
 Ct. App., 1871, Willetts v. Sun Mut. Ins. Co., 45 
 N. Y. (6 Hand,) 45. 
 
 26. Where an insurance company promised 
 the assured, that, if he would find, take charge 
 of, and after inspection sell damaged property 
 not covered by the terms of his policy, and make 
 returns to it of such sales, it would pay the defi- 
 ciency, the promisee may, after performance, 
 recover upon such promise. lb. 
 
 27. — voluntary. A married woman who 
 assigns to another a certain interest in a policy 
 of insurance on the life of Iier husband, held by 
 her, upon his agreement to " keep it alive " for 
 her benefit and that of her family, can maintain 
 an action against such assignee, even in the life- 
 time of her husband, to recover the value of the 
 policy, if, after entering upon the performance 
 of the agreement by paying some of the pre- 
 miums, he allows the policy to be forfeited for 
 non-payment of those subsequently accruing. 
 Sup. Ct., 1875, Ainsworth v. Backus, 5 Hun, 414. 
 
 28. For commission. A broker, who, under 
 an agreement that he shall receive $500, as com- 
 mission for effecting the sale of a farm, finds a 
 purchaser who takes it, paying in stocks, can 
 maintain an action against his employer to 
 recover his commission on the failure of the 
 latter to transfer to him stock in payment there- 
 of when requested in pursuance of his agree- 
 ment. Com. App., 1872, Rider v. Pell, 51 N. Y. 
 (6 Sick.) 669. 
 
 29. For contribution. Where adjoining 
 proprietors agreed by parol to jointly build a 
 party wall, one-half on the premises of each, and 
 went on and so built the basement wall, and one 
 of them prepared his materials and planned his 
 building in view of such contract and relying 
 upon its performance and the,use of such wall,-— 
 Held, that upon the refusal of the other party to 
 proceed^ he was not limited to _an action for 
 specific performance, which would be an in- 
 adequate remedy, but might, after notice to the 
 other, go on and complete the wall, and maintain 
 an action for contribution. Lott & Eakl, C. C, 
 dissent. Com. App., 1874, Rindge v. Baker, 57 
 N. Y. (12 Sick.) 209. 
 
 30. Under a verbal contrajt whereby one 
 party sold to the other one-half of his interest 
 in a certain adventure, upon the understanding 
 that tliey should share equally in the result, the 
 former may maintain an action against the latter 
 to compel contribution toward the losses, al- 
 though he had at the time of the sale already 
 embarked in the undertaking, without reference 
 to any arrangement with the other, and the lat- 
 ter has done and contributed nothing to aid the 
 join t enterprise. Ct. App., 1871, Coleman v. Eyre, 
 45 N. Y.(6 Hand,) 38 ; Eev'g S. C, 1 Sweeny, 476. 
 
 31. For conversion. If parties having funds 
 of another in their hands, and being instructed 
 by him to purchase bonds therewith and hold 
 them as a special deposit, inform him that they 
 have done so, that is a transfer of his funds to 
 their account, and he becomes the owner of the 
 bonds, and can maintain an action against them 
 
ACTIONS. 
 
 for the conversion thereof. Sup. Ct., 1875, Lam- 
 bertson v. Van Boskerk, 49 How. 266 ; S. C, 4 Hun, 
 628. 
 
 82.' For deposits. Where a check drawn 
 upon a bank by one of its customers is presented, 
 and the amount entered upon the deposit ticket 
 of the holder, the bank becomes immediately 
 liable to such holder as for a deposit ; and he 
 may maintain an action therefor, although the 
 bank within an hour returns the check with a 
 statement that it is not good. Ct. App., 1871, 
 Oddie V. National City Bank of New York, 45 
 N. Y. (6 Hand,) 735. 
 
 33. For dividends. Where a steamer, owned 
 four-fiftlis by one party and one-fifth by other 
 parties, has been insured for their joint benefit 
 in mutual companies, each paying his sliare of 
 the premiums, each owner is entitled to liis sliare 
 of dividends declared by such companies, and 
 one of the joint owners, whose share of such 
 dividends has been received by the others, can 
 maintain an action against them for an account- 
 ing. Sup. Ct., 1874, Boardman v. Gaillard, 1 Hun, 
 217 ; Aff'd, 60 N. Y. (15 Sick.) 614. 
 
 34. On draft negotiated for one's benefit. 
 Where one under no legal obligation to dis- 
 charge a mortgage procured the mortgagee to 
 take certain drafts, purporting to be accepted by 
 the mortgagor, but in fact by another person of 
 the same name, and to assign the mortgage to 
 him, whereupon lie satisfied the same of record ; 
 and the mortgagor afterward conveyed the land 
 free of incumbrances, — Held, that the latter, 
 having received the benefit of the drafts, was 
 liable in an action thereon, although the trans- 
 action was unauthorized by him and entirely 
 unknown to him until some time after it occurred. 
 Ct. App., 1872, Fitzhugh v. Sackett, 50 N. Y. (5 
 Sick.)- 699. 
 
 35. To enforce equitable lien. Where 
 several creditors made an arrangement with 
 their debtor, whereby the latter was to confess 
 judgment in their favor in Schuyler County, 
 and the lien of one was to have priority over 
 the others as a first lien on all the debtor's prop- 
 erty, real and personal, and the judgments were 
 docketed as agreed upon, after which it was de- 
 cided that Schuyler County was not properly 
 organized, and the judgments should have been 
 In Steuben County,— flcW, that the preferred 
 creditor might, by action to enforce his priority 
 of lien, place himself in the same position that 
 he would have been had the judgment been 
 docketed in the proper county ; but he could 
 not thereby obtain a lien upon timber cut upon 
 the debtor's real estate and applied upon the 
 other judgments, or on personal property of the 
 debtor transferred before execution issued upon 
 his judgment Cora. App., 1872, Lanning v. Car- 
 penter, 48 N. Y. (3 Sick.) 408. 
 
 86. Equitable rights in land speculation. 
 Members of a voluntary association, who have 
 subscribed to a fund for the purchase and im- 
 provement of land, under a written agreement 
 » that the title shall he invested in W, one of 
 their number, who shall lease and convey the 
 same, and shall, when required by the board of 
 directors and indemnified, transfer his title and 
 office of custodian, the shareholders to partici- 
 pate in the anticipated profits in proportion to 
 their subscriptions, can, upon the death of W, 
 maintain an action against his heirs and per- 
 sonal representatives, to enforce their equitable 
 interests in the land, and compel an accounting. 
 Ct. App., 1874, Barker v. White, 58 N. Y. (13 
 Sick.) 204. 
 
 37. Fraudulent concealment. One who 
 
 sells a legacy, representing to the purchaser 
 that the estate of the testator is ample to pay it, 
 but concealing the fact that the personal estate 
 was insufficient for that purpose, and that an 
 action was about to be commenced to determine 
 whether it was a charge upon the real estate, is 
 liable, in case it is decided that it is not a charge 
 upon the real estate and but a portion of tlie 
 legacy is paid, for the remainder thereof; and 
 an action will lie to recover the same. Sup. Ct., 
 1875, Durffuny v. Furgeson, 5 Hun, 106. 
 
 38. nieg^ tax. A bank which has been 
 assessed and taxed on its capital stock, in viola- 
 tion of chapter 761, Laws 1866, can maintain an 
 action against a municipal corporation to recover 
 back the amount collected from it upon such 
 assessment, for municipal taxes. Ct. App., 1873, 
 National Bank of Chemung v. City of Elmira, 53 
 N. Y. (8 Sick.) 49. 
 
 39. The remedy by certiorari is not adequate 
 to such a case j but is appropriate to review 
 assessments which are erroneous merely. lb. 
 
 40. Indemnity. An action will lie upon a 
 promise of indemnity against the costs of . a de- 
 fense, made, pending the suit, by one who is 
 liable over to the promisee in case of failure, 
 although such defense is invalid and proves un- 
 successful. Ct. App., 1871, Wells V. Mann, 45 
 N. Y. (6 Hand,) 827 ; Bev'g S. C, 52 Barb. 263. 
 
 41. If a sheriff, having in his hands a senior 
 attachment, which he has served by copy, after- 
 ward receives and serves in like manner a 
 junior attachment, but does not take tlie pos- 
 session of property necessary to constitute a 
 levy until after he has received a bond of in- 
 demnity in the junior suit, and tlien seizes and 
 removes property not belonging to the attach- 
 ment defendant, the obligors in jucli bond are 
 liable to the owner of the property in trespass 
 de bonis to the whole value thereof, altliough 
 such property is afterward sold on execution in 
 the senior suit, and nearly the whole of the pro- 
 ceeds applied thereto. N. Y. Supr. Ct., 1874, 
 Miles V. Brown, 88 N. Y. Supr. (6 J. & Sp.) 400. 
 
 42. Interpleader. Where . a reward was 
 offered " for the arrest and conviction, or infor- 
 mation leading thereto, of the person or persons" 
 who committed a certain crime, and after the 
 trial and conviction of a person for such crime, 
 several persons claimed the reward or some 
 part of it, and the party who offered it was 
 ready to pay to the persons lawfully entitled, — 
 Held, that it was a case peculiarly proper for an 
 action by such party to interplead the several 
 claimants. Sup. Ct. Sp. T., 1872, FargoY. Arthur, 
 48 How. 198. 
 
 48. Where, in such action, it appeared that 
 the different claimants had furnished informa- 
 tion of independent facts, which, combined, led 
 to the apprehension and conviction of the of- 
 fender, — Held, that the reward should be equit- 
 ably distributed among them. lb. 
 
 44. Irregular process. When a party or 
 his attorney may lawfully issue process against 
 the person or property of a party, they are lia- 
 blp if the process is issued in a case not author- 
 ized by law ; and when it is issued in a case in 
 which it may lawfully issue, but is issued ir- 
 regularly, they are liable only after it is set aside 
 for such irregularity. Sup. Ct., 1872, Miller v. 
 Adams, 7 Lans. 181. 
 
 45. Although a party is protected by pro- 
 cess issued by a court or officer in his favor, on 
 proof made to the satisfaction of such court or 
 officer, even though issued erroneously ; yet, if 
 he, interferes in an arrest under it beyond taking 
 out the process and delivering it to an officer to 
 
8 
 
 ACTIONS. 
 
 be executed, he is liable for such unauthorized 
 interference, lb. 
 
 46. A party who maliciously and in bad 
 faitii extends the jurisdiction of a court or of- 
 ficer to a case to which it cannot lawfully be 
 exteiided, is liable to the party injured thereby, 
 lb. 
 
 47. On judgmeut. An action may be 
 biouglit by an administrator upon a judgment 
 recovered by liis intestate, during tlie lifetime 
 of tlie latter, against the defendant, . without 
 leave of court, such an action not being between 
 the same parties, within the meaning of the 
 prohibition of section 71 of the Code. Sup. Ct. 
 Sp. T., 1873, Umith v Britton, 45 How. 428. 
 
 48. — judgment agEiinst predecessor. 
 Wliere an action is improperly brought and 
 judgment obtained against a steam navigation 
 company, for causing the death of a person by 
 neghgence in tlie management of one of its 
 steamers, an action cannot be maintained against 
 anotlier company to whicli such steamsliip and 
 all the property of the former company had 
 been transferred previous to the alleged acci- 
 dent, to collect the amount of such judgment,, 
 on the ground that it assumed upon such trans- 
 fer to pay all the debts and liabilities of the 
 former company. Sup. Ct., 1875, Miller v. Na- 
 tional Steamship Co., 4 Hun, 654. 
 
 49. — decree of surrogate. Ab action can 
 be maintained by a creditor or legatee upon a 
 surrogate's decree of distribution, made in con- 
 formity to the statute, to recover the amount 
 adjudged due to him ; hut no such action can be 
 maintained upon a decree which merely deter- 
 mines the balance of assets in the.hands of the 
 executor. Sup. Ct., 1876, Johnson v. Richards, 3 
 Hun, 454. 
 
 50. Leasing infected premises. A tenant 
 who takes a contagious disease from premises 
 leased to him by a landlord who knew that they 
 were infected but did not notify him of the fact, 
 can maintain an action against his landlord to re- 
 cover the damages thereby sustained. Ct. App., 
 1875, Cesar v. Karutz, 60 N. Y. {16 Sick.) 229. 
 
 51. Iievy on goods. One who has taken 
 possession, in good faith, of goods previously 
 sold by him on condition that the title should 
 remain in him until paid for, and of other goods 
 afterward acquired by his vendee, which by 
 the agreement were also to be his, on like con- 
 ditions, can maintain an action against an officer 
 for levying upon and selling such goods by vir- 
 tue of an execution against his vendee, and re- 
 
 ■ cover the value thereof. Sup. Ct., 1874, Powell 
 V. Preston, 1 Hun, 513. 
 
 62. Money contributed to aid revolution. 
 A party who has contributed moneys to be used 
 in another country iii aid of a revolutionary 
 struggle against a government at peace with 
 the United States, but which have not been so 
 applied, may maintain an action to recover the 
 same back from the depositary. N. Y. Supr. 
 Ct., 1871, Bailey v. Belmont, 10 Abb. N. S. 270; 
 S. C, sub. nom. Bailey v. O'Mahony, 33 N. Y. 
 Supr. (IJ. &Sp.)239. 
 
 68. Money had euid received. A judg- 
 ment creditor who, after assigning his judgment, 
 gives the debtor a satisfaction thereof, is liable 
 to his assignee, in case such satisfaction was 
 given upon payment, for the amount of the 
 judgment, as for money had and received; if 
 without payment, then ,for the damages sus- 
 tained by the assignee in consequence of it. 
 Sup. Ct., 1871, Boo^i v. Farmers and Mechanics 
 National Bank,i tans. 301 ; AfE'd, S. C, 50 N. Y. 
 (6 Sick.) 396. 
 
 54. The same liability attaches to a_ cor- 
 poration, where its president satisfies a judg- 
 ment in its favor after it has assignied the 
 same. lb. 
 
 65. A satisfaction piece is to be presumed 
 to have been given upon payment of the judg- 
 ment, and in the absence of evidence to the con- 
 trary, is suflScient to charge the party giving it 
 with the receipt of the amount of the judgment, 
 lb. 
 
 56. Money paid under mistake. The rule 
 that money paid under a mistake of law cannot 
 be reclaimed, should be confined in its applica- 
 cation to oases falling strictly within it. To de- 
 prive the party aggrieved of relief, on the ground 
 that the alleged mistake is one of law and not 
 one of fact, he must have had knowledge of the 
 facts equal to that which is considered neces- 
 sary to charge one with an adoption, election, 
 assent, or ratification, as to the transaction 
 which he seeks to repudiate. Brooklyn City Ct., 
 1872, Barker v. Clark, 12 Abb. N. S. 106. 
 
 57. A bank which has paid, through the 
 clearing house, to another bank, a cheek in fa- 
 vor of an individual, presented to and certified 
 by it, and afterward fraudulently altered so as 
 to call for a much larger sum, both banks acting 
 at the time under a mistake as to its genuine- 
 ness, and neither being chargeable with greater 
 negligence than the other, can recover back the 
 money so paid. N. Y. Supr. Ct, 1873, National 
 Bank of Commerce v. National Mechanics Banking 
 Association, 46 How. 374 ; S. C, 35 N. Y. Supr. 
 (3 J. & Sp.) 283 ; AH'd, 55 N. Y. (10 Sick.) 211. 
 
 68. Money paid for a worthless note, 
 under a mutual mistake of fact as to the sol- 
 vency and responsibility of the parties to it, 
 may be recovered back upon return, or offer to re- 
 turn the note ; and if the broker or agent through 
 whom the sale is effected receives back the note 
 and returns the consideration paid, upon demand 
 of the purchaser after discovery of the insol- 
 vency of the parties to it, he is entitled to the 
 same remedy against his principal as the pur- 
 chaser would have had. N. Y. Supr. Ct., 
 Stewart v. Orvis, 47 How. 518. 
 
 59. — for stock purchased. A broker 
 who has advanced money upon a purchase of 
 gold for his principal, the latter depositing with 
 him a certain sum as a margin, may, upon the 
 refusal of his principal to keep up and maintain 
 his margin as the market declines, sell the gold 
 for his reimbursement, upon due notice to his 
 principal, and maintain an action against the 
 latter, as for money paid to his use, for any loss 
 incurred upon such sale. N. Y. C. P., 1869, 
 Schepeler v. Eisner, 3 Daly, 11. 
 
 60. — on released debt. Where one cred- 
 itor, uniting with others in a composition with 
 their debtor, .releases a demand which he has 
 previously transferred, he impliedly undertakes 
 to protect the debtor against such demand ; and 
 if payment is enforced against the latter, he may 
 recover the amount paid from such creditor. 
 And the rule is the same although the release is ^ 
 voluntary. Ct. App., 1673, Harloe v. Foster, 63 
 N. Y. (8 Sick.), 386. 
 
 See Monet had, &c. 
 
 61. For municipal debt. An action can 
 be maintained against a village or city corpora- 
 tion for a sum of money due upon contract, if, 
 after it becomes due, the municipal authorities 
 neglect or refuse to put the proper machinery 
 in motion to raise the necessary funds, or to put 
 the plaim presented in the proper shape for 
 
ACTIONS. 
 
 9 
 
 liquidation and payment within a proper time. 
 Mandamus is not the only remedy in such cases. 
 Sup. Ct., 1872, Buck v. CiUj of Lockport, 43 How. 
 361;S. C, 6Lans. 251. . 
 
 62. On notes surrendered. A party 
 who, under an eiitire contract of sale void by 
 the Statute of Frauds, has delivered up certain 
 notes held by him against the other party to the 
 contract, may, upon refusal of such other to 
 perform in full, and after demand made for the 
 notes, maintain an action for the amount due 
 upon them. Ct. App., 1872, Chapman v. McKay, 
 47 N. Y. (2 Sick.) 670. 
 
 63. Nnisance. A person whose team, en- 
 gaged in towing a boat upon the canal, becomes 
 friglitened by a current of air and dust coming 
 from a wool picker in a factory standing close 
 beside the tow path, through a pipe extending 
 from a window towards such path, but not over 
 it, and jumps into the canal and is drowned, can 
 maintain an action therefor against tlie owners 
 of such factory, tlieir act in ejecting air and 
 dust upon the towing path being a nuisance. 
 Sup. Ct., 1872, Conklin v. Phoenix Mills of Smeca 
 Falls, 62 Barb. 299. 
 
 64. Overcharges. A purchaser of goods 
 who is induced to buy of particular vendors by 
 their agreement to sell to him as low as to other 
 dealers, can maintain an action against them 
 ex contractu to recover back the amount over- 
 charged to and paid by him, on purcliases 
 represented to be in accordance with tliat con- 
 tract. Ct. App. 1874, Hollz V. Schmidt, 59 N. Y. 
 (14 Sick.) 263. 
 
 65. To declare policy valid. In ordinary 
 cases, courts will not, in advance of any present 
 duty, obligation, or default, declare the rights 
 and obligations of suitors ; yet, where an insur- 
 ance policy, upon which a large amount had 
 been paid in annual premiums, was claimed by 
 the company to be avoided by the occurrence of 
 war between the States of the insurer and the 
 insured, and also for the non-payment of the 
 annual premiums maturing during such war, 
 although they were tendered by tlie assured on 
 tlie return of peace ; — Held, that, on a complaint 
 stating tliese facts, the assured might maintain 
 an action to have her policy declared valid, and 
 for permission to make lier payments; or, in the 
 alternative, to recover back the sums paid by 
 her, with the dividends and interest. Ct. App., 
 1872, Cohen v. New York Mut. Insurance Com- 
 pany, 50 N. Y. (5 Sick.) 610. 
 
 66. Proceeds of stolen property. The 
 owner of bonds which have been stolen and con- 
 verted into other securities can maintain an 
 action agaijist attorneys-at-law who have re- 
 ceived sucli securities as indemnity for legal 
 services and advances in defending the parties 
 from whom they received them, in civil and 
 criminal proceedings growing out of sucli lar- 
 ceny, and recover the proceeds of such securi- 
 ties, deducting the value of services rendered 
 previous to notice that tliey represented moneys 
 realized from stolen bonds. Sup. Ct., 1872, 
 Newton V. Porter, 5 Lans. 416. 
 
 67. To compel reconveyance. Where 
 lands are conveyed by absolute deed as securit/ 
 for the payment of money, an action may be 
 maintained, after payment or satisfaction of the 
 debt, by the assignee of the grantor to compel 
 a reconveyance. N. Y. Supr. Ct., 1870, Sherwood 
 V. Wilson, 2 Sweeny, 684. 
 
 68. In such action it will make no difference 
 that the grantee in such deed accepted in satis- 
 faction of the debt an order for certain stocks, 
 and that after such acceptance, and after the 
 
 riglits of the assignee had attached, but before 
 tlie delivery of the stocks, the assignor had 
 pledged tliem to a third party. lb. 
 
 69. To recover revenue tax in addi- 
 tion to price. The word " price," As used 
 in the Revenue Act of 1864 (13 U. S. Stats, at 
 Large, 270, § 97), which provides that, where tlie 
 price of a manufactured article to be delivered 
 has been agreed upon prior to its passage, the 
 manufacturer shall be authorized to add to the 
 price the amount of any duty subsequently im- 
 posed, does not denote a sale for money only, ' 
 but is applicable to an exchange. Accordingly, 
 where, prior to the act, a manufacturer con- 
 tracted for a quantity of iron ore, to be paid for 
 in pig iron, on which the act imposed a duty of 
 two dollars per ton, — Held that he could recover 
 the amount of such duty. Com. App., 1873, 
 Hudson Iron Co. v. Alger, 54 N. Y. (9 Sick.) 
 173. 
 
 70. Section 87 of said act, which refers spc 
 cially to the case of an exchange between pro- 
 ducer and manufacturer of tobacco, does not 
 furnish any inference against tliis construction of 
 section 97, as it provides for a case not embraced 
 in the latter section, — autliorizing the collection 
 of the tax in all cases, whether the contract was 
 made before or after the passage of the act. 
 lb. 
 
 71. Refusal to transfer stock. A coi 
 poration which refuses to transfer stock on its 
 books, upon application of the owner and holder 
 of the certificate, and the production thereof 
 with the usual power of attorney from tlie orig- 
 inal stockholder indorsed thereon, is liable to 
 such owner in an action for damages therefor. 
 Sup. Ct., 1873, Smith v. American Coal Co, of 
 Alleghany Co., 7 Lans. 817. 
 
 72. Removal of obstructions. The 
 grantee of a village lot, mapped and laid out by 
 his grantor, and fronting on a street also laid 
 out by the grantor, whose deed provides that 
 the line shall extend to the centre of the 
 street, thereby acquires an easement in the 
 whole street for the use and benefit of his lot, 
 and can maintain an action in equity to compel 
 his grantor to remove obstructions therefrom. 
 Sup. Ct., 1874, Taylor v. Hepper, 2 Hun, 646. 
 
 73. To rescind contract. Equity will 
 rescind a contract for a mistake of a material 
 fact by one of the parties in entering into it. 
 It is not necessary that the mistake should be 
 mutual. Sup. Ct., 1871, Smith v. Mackin, 4 
 Lans. 41. 
 
 74. Thus, where a purchaser of lot 4, by 
 mistake entered upon lot 5 and occupied it for 
 more than twenty years, and being sued in 
 ejectment for lot 5, and supposing that only an un- 
 important intrusion upon the plaintiff's boundary 
 of contiguous property was claimed, stipulated 
 to surrender all of lot & that he occupied upon 
 discontinuance of the suit, — Held, that upon 
 discovery of his mistake, he could maintain an 
 action to rescind the stipulation. lb. 
 
 75. Where it appears in sftch action that the 
 ejectment defendant, on discovery of the mis- 
 take, claimed to rescind and offered to reinstate 
 the ejectment suit, which the plaintiff refused 
 to consent to, the court in the equity suit will 
 rescind the contract without reinstating the eject- 
 ment, lb. 
 
 76. To set aside deed. The heir of a 
 grantor of land may maintain an action to set 
 aside a deed of such land on the ground that it 
 was executed when the grantor was of unsound 
 mind, and to-recover back the land. Sup. Ct., 
 1871, Marvin v. Lewis, 61 Barb. 49. 
 
10 
 
 ACTIONS. 
 
 77. — fraudulent mortgage. An action can 
 be maintained by the -holder and owner of a 
 chattel mortgage, given to secure a precedent 
 debt, to set aside a prior mortgage of the same 
 property, as being fraudulent against creditors. 
 Sup. Ct., 1875, Anderson v. Hunn, 5 Hun, 79. 
 
 78. Under tlie Code it is immaterial whether 
 the action is called legal or equitable, as the 
 court will grant such relief as the allegations of 
 the complaint and the proofs on the trial demand, 
 lb. 
 
 79. — sale by receiver. An equitable ac- 
 tion may be maintained by a creditor of a corpor- 
 ation to vacate an order fraudulently obtained by 
 a receiver of such corporation for the sale of a 
 debt due to it, and a sale thereof for an inade- 
 quate price made in pursuance of such order. 
 The creditor is not limited to a motion in the 
 action in which the receiver was appointed. Ct. 
 Anp., 1875, Hackley v. Draper, 60 N. Y. (15 
 Sick. ) 88 ; AfE'g S. C., 2 Hun, 523. 
 
 80. It is sufficient to sustain such action as 
 against the debtor of the corporation, made a 
 party defendant therein, that he instigated and 
 procured the sale to be made secretly after a 
 much larger sum had been offered by him and 
 rejected ; and that, although the sale was to a 
 third person, he furnished the money therefor, 
 and the purchaser afterward satisfied the judg- 
 ment, even where it does not appear that he 
 directly participated in the receiver's fraud. lb. 
 
 81. The creditor not having received the 
 money paid for the judgment, a return thereof 
 by him is not necessary to the maintenance of 
 the action. lb. * 
 
 82. Sale incomplete. If, after delivery of 
 a horse, under a contract of sale which is incom- 
 plete, because the parties did not understand it 
 alike as to the price, the purchaser refuses to 
 pay the balance claimed, or to return the horse 
 on demand and tender of the sum paid, the ven- 
 dor can maintain an action of trover therefor. 
 Sup. Ct., 1874, Tripp v. Pulver, 2 Hun, 511. 
 
 83. Sale of patent. A purchaser of a patent 
 improvement in safes agreed to pay therefor a 
 certain sum per pound on weights of all safes 
 sold by him during the term of the contract. 
 Having formed a partnership for the manufac- 
 ture of the safes and oohtinued such manufac- 
 ture for some time, he sold out to his partner, 
 delivering to him all the safes on hand. Held, 
 a sale, within the meaning of the contract, and 
 that he was liable in an action by the patentee 
 for the royalty. Com. App., 1871, Wilder v. 
 Stearns, 48 N. Y. (3 Sick.) 656. 
 
 84. One F, for a sum in gross, contracted 
 to sell to another an interest in a patent right al- 
 ready in use for bleaching paper and pulp, and 
 also an interest in a patentright, which had been 
 applied for but not obtained, for preparing the 
 material and reducing it to pulp preparatory to 
 bleaching, agreeing to put " the said process " 
 in operation at once, in the mill of the vendee ; 
 and the latter agreed to pay part of the purchase- 
 price down and theTjalance as soon as said pro- 
 cess should be put in successful operation, — 
 Held, that the condition referred solely to the 
 process of bleaching, and F could recover the 
 last instalment on putting that in operation, al- 
 though the other patent proved a failure. Ct. 
 App., 1872, Rowley v. Woodruff, 50 N. Y. {5 Sick.) 
 700. 
 
 85. Wherei upon the sale of a quarter-inter- 
 est in. a patent, by the inventor to one already 
 owning a half interest, the purchaser agreed to 
 expend a certain sum, if necessary,in construct- 
 ing a machine after the patent to be used in pro- 
 
 moting the formation of a stock company ; and 
 then to put into the company to be thereupon 
 organized, and in which the inventor was to 
 have the right of being represented by his re- 
 maining one-quarter interest, the three-quarters 
 interest in the patent held by him, as part of the 
 capital stock ; — Held, that, a company having 
 been formed, before such machine was construct- 
 ed, upon the basis of the purchaser's three-quar- 
 ters interest only, the inventor having refused 
 to join, the latter might maintain an action gen- 
 erally for his damages for breach of the con- 
 tract. N. Y. Supr. Ct., 1869, Hart v. Fitch, 2 
 Sweeny, 9. 
 
 86. Surplus. A subsequent lienor cannot 
 maintain an action against a mortgagee who has 
 foreclosed by advertisement and sale under the 
 statute, for the surplus moneys, unless such 
 mortgagee has received the same ; but he may 
 maintain an action against a second mortgagee 
 who has retained them, claiming a right thereto, 
 for the balance of such surplus moneys after 
 satisfying the second mortgage. Sup. Ct., 1871, 
 Russell V. Duflon, 4 Lans. 399. 
 
 87. Trespass. An action will lie in favor of 
 a land owner against a railroad company, to re- 
 cover damages for its entering upon, using and 
 occupying his land, for the purpose of construct^ 
 ing its road, or taking and appropriating his tim- 
 ber, without having first ascertained the com- 
 pensation to which he would be entitled and 
 paid the same. Sup. Ct., 1873, Blodgett v. Utica 
 and Black Riv. R. R. Co., 64 Barb. 680. 
 
 88. Such right of action would not be dis- 
 charged or defeated by proceedings, commenced 
 a year after it had accrued, to acquire the title, 
 and the payment and acceptance of the damages 
 awarded therein. lb. 
 
 89 'Wilful trespass. One who commits a 
 wilful and malicious trespass on the property of 
 another, under circumstances involving unavoid- 
 able injury to persons and property, is responsi- 
 ble to any person who is injured thereby, even 
 though he did not intend the particular injury 
 which ensued. Sup. Ct., 1873, Munger v. Baker, 
 65 Barb. 539. 
 
 90. 'Wrongful dismissal. The proper rem- 
 edy for a servant, in case he is wrongfully dis- 
 missed before the expiration of his engagement, 
 is a general action for damages for breach of the 
 contract ; and in such action he may recover for 
 any services actually rendered and remaining 
 unpaid for. N. Y. C. P., 1873, Moody v. Leverich, 
 14 Abb. N. S. 145 ; S. C, 4 Daly, 401. 
 
 91. He cannot sue on a quantum meruit for 
 services actually rendered, and also bring an 
 action for damages for breach of the contract, 
 because the former would be an admission that 
 the contract was rescinded. lb. 
 
 3. When will not lie. 
 
 92. On award. 'Where an award requires 
 the respective parties to do things in the nature 
 of concurrent acts or covenants, if one of them 
 does part and offers to do the remainder of the 
 acts to be done by him, and the other refuses 
 to do and gives notice that he will not do the 
 things to be done by him, the latter cannot main- 
 tain an action against the former for his non-per- 
 formance of the award. Sup. Ct., 1872, Perkins 
 V. Giles, 6 Lans. 437. 
 
 93. Bill of peace. The grantee of a devisee 
 of land cannot maintain an action as a bill of 
 peace against his grantor and children, to deter- 
 mine the construction of the will, and the extent 
 of the interest devised to her and by her con- 
 
ACTIONS. 
 
 11 
 
 veyed to him, when there ia no action or pro- 
 ceeding pending or threatened for the purpose of 
 overthrowing his rights. Sup. Ct., 1872, Bailey 
 V. Southwick, 6 Lans. 356 ; AfE'd S. C, sub nom, 
 Bailey v. Briggs, 56 N. Y. (11 Sick.) 407. 
 
 94. Bill quia timet. A party whose rights 
 are strictly legal riglits, under a recorded con- 
 veyance, and who is in no danger of losing them 
 by the act of another party, or by delay, but is 
 in the quiet and peaceable possession of the prop- 
 erty, cannot maintain an action, as a bill quia 
 timet or in the nature of a quia timet to determine 
 the extent of his rights as against possible or 
 probable remainder-men. lb. 
 
 95. Bond taken in void proceeding. A 
 bond taken by a public oflScer in a void proceed- 
 ing, is invalid, and no action will lie upon it. 
 Ct. App., 1871, Brookman v. Eamill, 43 N. Y. 
 (4 Hand) 554. 
 
 96. Contract, alternative. The assignee of 
 a patent, under an agreement whereby he was to 
 pay $1,000, before tlie end of one year or reas- 
 sign the patent, having, on demand being made 
 for the money after the expiration of tlie year, 
 offered to re-assign, no action will lie in favor of 
 the assignor to recover the money. ' Ct. App., 
 
 1871, Manvel v. Holdridqe, 45 N. Y. (6 Hand) 
 150. 
 
 97. — to assume liabilities. One who sells 
 out his interest in a partnership, to a person who 
 takes his place in the firm, and agrees to assume 
 his share of the liabilities of the firm, cannot 
 maintain an action on the latter agreement 
 unless he is obliged to pay some of the old debts. 
 Sup. Ct., 1873, Coleman v. Lansing, 65 Barb. 54. 
 
 98. Where an agent to whom the old firm was 
 indebted at the time of the change, is continued 
 in the service of the new one, and his account is 
 kept as a continuous account, and payments are 
 made upon it exceeding the old indebtedness, 
 they are to be applied thereto, and no such 
 action can be maintained on account thereof. lb. 
 
 99. — condition unperformed. One who 
 contracted to build an organ and afterward 
 mortgaged it in an unfinished state to the vendee, 
 to secure moneys advanced to enable him to 
 complete it, to be repaid on demand, cannot 
 excuse his own non-performance and recover the 
 contract price, on the ground that the vendee 
 prevented performance by a sale under the mort- 
 gage on default. Ct. App., 1871, Wallman v. 
 Society of Concord, 45 N. Y. (6 Hand) 485. 
 
 100. — to get note rene-wed. Where A fur- 
 nished his note to B for the benefit of C, upon B's 
 agreeing to see that it was renewed from time 
 to time until C was able to meet it, — Held, that 
 he could not recover on such agreement without 
 showing, both that a note was furnished for 
 renewal in season to be substituted for the 
 previous one, so as to save it with B's indorse- 
 ment, from dishonor, and also that C, at the 
 time of maturity, was unable to pay. Com.App., 
 
 1872, Brisbane v. Beebe, 48 N. Y. (3 Sick.) 631. 
 
 101. — to issue bonds. Plaintiff being the 
 holder of certain railroad bonds under a contract 
 by virtue of which he claimed a right, as against 
 the company, to a further issue, entered into an 
 agreement with other bondholders to purchase 
 the property of the company at a foreclosure 
 sale, organize a new company among themselves 
 to which the property should be conveyed, and 
 issue bonds of such new company to replace 
 specified liabilities of the old company, including 
 the bonds issued to hiffl, no provision being 
 made for the general creditors, nor for plaintiff's 
 claim for additional bonds. Held, in an action by 
 him against the trustees of the new company to 
 
 enforce such claim, that although, as between 
 him and the old company, equity would consider 
 that as done which should have been done, tlie 
 fiction could not be extended so as to affect the 
 rights of parties contracting, as in this case, with 
 reference to what had been actually done, and 
 that the action could not be sustained. Ct. App., 
 1872, Vose V. Cowdery, 49 N. Y. (4 Sick.) 336. 
 
 102. — in mortgage to pay prior lien. 
 Where a mortgage contains a stipulation to the 
 effect that the mortgagee assumes to pay a prior 
 mortgage, such stipulation is a mere agreement 
 to advance for the benefit of the mortgagor only, 
 and is dischargecl by satisfaction of the debt and 
 release of the junior mortgagee; and no action 
 will lie thereon against such mortgagee in favor 
 of the holder of the prior lien. Ct. App., 1872, 
 Gurnsey v. Roc/ers, 47 N. Y. (2 Sick.) 233. 
 
 103. — in fraud of distributees. No action 
 will lie upon a promise by one next of kin to 
 another to pay him a sum of money, made 
 without the knowledge of the other distributees, 
 and to induce the promisee to acquiesce in a pro- 
 posed settlement of the estate, and to refrain 
 from proceedings against the promisor to compel 
 him to account for other property of the estate 
 which the promisee charged him with having 
 appropriated. Ct. App., 1871, Adams v. Outhouse, 
 45 N. Y. (6 Hand,) 318. 
 
 104. Such a promise would be a fraud upon 
 the other distributees, and, whether the allega- 
 tions against the promisor were true or not, the 
 promisee and his assignee would be estopped 
 from claiming that they were not. lb. 
 
 105. lUegal contract. No right of action 
 can spring out of an illegal contract, nor will a 
 court aid either party to enforce a contract 
 which is prohibited by positive law, or is opposed 
 to public policy, or contrary to good morals. N. 
 Y. Supr. Ct., Sp. T., 1875, Pease v. Walsh, 39 N. 
 Y. Supr. (7 J. & Sp.) 514 ; S. C, 49 How. 269. 
 
 106. A contract to use the infiuence of the 
 contracting party with the dock department of 
 New York City, or some of its members, to pro- 
 cure a lease of piers for a third party (not shown 
 to be a legitimate influence), is contrary to 
 morality and public policy, and no action will lie 
 for services rendered under it. lb. 
 
 107. A member of the Commoh Council of a 
 city whose charter prohibits any member of the 
 Common Council from becoming a contractor 
 under any contract, authorized by the Council, 
 and provides that contracts in violation thereof 
 may be declared void at the instance of the city, 
 cannot maintain an action against the city for 
 carriages, &c., furnished by him while such 
 member, upon the order of a committee of the 
 common council to make arrangements for the 
 celebration of the fourth of July. Sup. Ct., 1872, 
 Smith V. City of Albany, 7 Lans. 14. 
 
 108. No recovery can be had upon a contract 
 founded on an Illegal consideration, where both 
 parties are in pari delicto. Com. App., 1870, 
 Saratoga County Bank v. King, 44 N. Y. (5 Hand,) 
 87. 
 
 109. It is only where the party seeking to en- 
 force the contract is not the wrongdoer, or the 
 denial of relief would benefit a guilty party at 
 the expense of an innocent one, that tlie court 
 will attempt a separation of the good from the 
 illegal consideration, and enforce the contract 
 as to the former. lb. 
 
 110. — for proceeds of. An action will not 
 lie in favor of one party jointly interested in an 
 illegal contract, to recover his share of the pro- 
 ceeds of such contract in the hands of an asso- 
 ciate ; nor will such action tie upon an express 
 
12 
 
 ACTIONS. 
 
 promise, made after the receipt of such proeeeds, 
 to pay them (iver. Ct. App., 1871, Woodworthv. 
 Bemelt, 43 N. Y. {4 Hand) 273. 
 
 111. — optional contract. Wliere, upon a 
 sale of railroad bonds, the vendors executed a 
 guaranty that the roads would be completed and 
 consolidated within a year, agreeing, if that were 
 not the case, to repay the purchase-money with 
 interest, — Held, that the option was witli tlie 
 vendee, upon default in the conditions, to con- 
 sider the transaction as a sale or loan, and tiie 
 vendors could not, at their election, tender the 
 purchase-money and maintain an action to 
 recover back the bonds. Com. .4PP-> 1872, Litch- 
 field V. h-vin, 61 N. Y. (6 Sick.) 5. 
 
 112. The railroad companies having made 
 default In paying the interest coupons on the 
 bonds, the vendee notified his vendors that if they 
 would take up the coupons he would not enforce 
 the guaranty, and they accordingly did so. Sub- 
 sequently, on further default being made, the 
 railroad companies proposed to the bondholders 
 to compromise the coupons due, to which the 
 vendee acceded only after consulting and ob- 
 taining tlie consent of the guarantors. Held, 
 that the former did not by these acts exercise his 
 option to become the .creditor simply of the 
 guarantors, so as to enable the latter to maintain 
 the action. lb. 
 
 113. Neither would a letter have that effect, 
 written by such vendee to his guarantors, noti- 
 fying them that he should enforce the guaranty, 
 unless tiiey would pay past due coupons, where 
 neither party acted upon it. lb. 
 
 114. Compelling conveyance. •Where one 
 of two parties to a verbal agreement for the 
 purchase of lands for their joint account makes 
 the purchase and takes the deed in his own name, 
 no action will lie in favor of the other to compel 
 a conveyance to himself of his share Ct. App., 
 1871, Lew V. Brush, 45 N. Y. (6 Hand) 689 ; 
 Kev'g8 Abb. N. S. 418,- 1 Sweeny, 653. 
 
 115. — set-off. Where, by agreement between 
 the plaintiff in an action and his attorney, the 
 latter was to have all taxable costs in case of a 
 recovery, and after payment of a reasonable 
 counsel fee from such recovery, the balance was 
 to be assigned to the attorney in payment of a 
 prior demand held by him ; and a judgment 
 having been recovered, the assignment was made 
 accordingly ; — Held, that the equity of such at- 
 torney was superior to that of the defendant, 
 although the latter was the owner of a prior 
 judgment against such plaintiff, not bearing any 
 relation, hotvever, to the demand in suit, and the 
 plaintiff was insolvent ; and that such defendant 
 could not therefore compel the set-off of such 
 recovery against his prior judgment. Ct. App., 
 1873, Zogbaum v. Parker, 55 N. Y. (10 Sick.) 120. 
 
 116. Expenses of suits. The maker of an 
 accommodation note, who defends against an 
 action thereon, or institutes suits to defeat its 
 collection, cannot maintain an action to recover 
 the costs and expenses of such suits against the 
 person for whose accommodation it was given. 
 N. Y. Supr. Ct., 1875, Dougherty v. Vallotton, 38 
 N. Y. Supr. (6 J. & Sp.) 455. 
 
 117. False imprisonment. An action for 
 false imprisonment cannot be maintained for 
 an arrest and imprisonment, unless the same 
 were unauthorized by law ; but when a power 
 to arrest is exercised without probable cause, 
 and with malice, the remedy is an action for 
 malicious prosecution. N. Y. Marine Ct., 1873, 
 Christie, v. Bergh, 15 Abb. N. S. 51. 
 
 118. Foreciostire, to enjoin. A judgment 
 against the plaintifis in a foreclosure suit and 
 
 the purchasers at a sale therein, setting aside 
 such sale and cancelling a mortgage given by 
 the purchasers to secure the purchase-money, on 
 the ground that the sale was collusive and fraud- 
 ulent, does not affect the validity of the origin- 
 al mortgage, and no action will lie, based thereon 
 to restrain a second foreclosure. Com. App., 
 1872, Stackpole v. Robbins, 48 N. Y. (3 Sick.) 665. 
 
 119. — to revive. The death of the mortgagor, 
 after judgment entered in a foreclosure action 
 which decrees a sale of the mortgaged premises 
 simply, without providing for a deficiency, does 
 not prevent the execution of the decree ; con- 
 sequently no action is necessary nor will lie to 
 revive such foreclosure. Ct. App., 1874, Hays 
 V. Thomas, 56 N. Y. (11 Sick.) 621. 
 
 120. Fraudulent representations. A party 
 to a contract, which is void by the Statute of 
 Frauds, cannot maintain an action against a 
 third person to recover damages for false and 
 fraudulent representations made to the other 
 party to the contract, preventing performance 
 on his part. Sup. Ct., 1874, Rice v. Manley, 2 
 Hun, 492. 
 
 121. Injury, accidental. No one can be 
 made liable for injuries to the person or prop- 
 erty of another, without some fault or negli- 
 gence on his part. Com. App., 1873, Losee v. 
 Buchanan, 51 N. Y. (6 Sick.) 476 ; Eev'g S. C, 
 61 Barb. 86. S. P. Losee v. Saratoga Paper Co., 
 42 How. 385. 
 
 122. A person who places a steam boiler on 
 his own premises, and operates the same for a 
 lawful purpose and with care and skill, so that 
 it is no nuisance, is not liable for damages to 
 his neighbor caused by an explosion of the 
 boiler, in the absence of proof of fault or neg- 
 ligence on his part. lb. 
 
 123. Such person is not liable, where the 
 explosion was caused by a defect in the manu- 
 facture of the boiler, unless there is proof that 
 such defect was known to him or was discover- 
 able on examination or by the application of 
 known tests. lb. 
 
 124. — from act of third party. The owner 
 of a ITBilding is not liable for an injury to a foot 
 passenger on the street, caused by the falling of 
 the stone coping to his chimney, where it does 
 not appear that the chimney was in any way 
 insecure, but that the coping was accidentally 
 thrown off by a third person who caught hold 
 of it to save himself from falling. N. Y. C. P., 
 1871, Scullin V. Dolan, 4 Daly, 163. 
 
 125. On judgment. Before an action can be 
 brought, under section 71 of the Code, upon a 
 judgment of foreclosure, directing a sale of 
 mortgaged premises, and the payment by the 
 defendant of any deficiency which might arise 
 on the sale, there must be a confirmation of the 
 referee's report, and a docketing of judgment 
 for deficiency against the defendant. Sup. Ct^, 
 1875, Hanaoer F. Ins. Co. v. Tomtinson, 3 Hun, 
 630. 
 
 126. Loss of baggage. An action cannot be 
 sustained either against the Commissioners of 
 Emigration in their official character, or against 
 the State, for the loss of baggage taken charge 
 of by them under the authority of the statutes 
 defining their powers and duties relative to the 
 landing of emigrants and their baggage. N. Y. 
 Supr. Ct., 1871, Samuels t. McDonald, 42 How. 
 860 J S. C, 11 Abb. N. S. 344; 33 N. Y. Supr. (1 
 J. & Sp.) 211. 
 
 127. Neither can an action be maintained 
 against them individually as bailees without 
 hire, except upon proof that the baggage came 
 to their poBsession, and that they were guilty of 
 
ACTIONS. 
 
 13 
 
 a want of ordinary care in keeping it, or of an 
 actual subsequent appropriation of it to their 
 own use. lb. 
 
 128. Lottery tickets, proceeds of. No 
 action will lie in favor of the managers of a gift 
 concert or lottery scheme against a person em- 
 ployed to sell tickets therefor, to recover moneys 
 received by him as the proceeds of such tickets. 
 N. Y. Sup. Ct., Sp. T., 1872, Negley v. Devlin, 12 
 Abb. N. S. 210. 
 
 129. Mesne profits. An action for mesne 
 profits is founded, not upon a promise, but upon 
 a trespass, and cannot be maintained where 
 there was no tenancy, and has been neither a 
 tortious entry, nor a tortious holding by the 
 defendant ; as, where the defendant entered 
 under a contract for the purchase of the land, 
 and lias been at all times ready to perform, but 
 has been prevented by the plaintiff. Sup. Ct., 
 1871, Thompson v. Bower, 60 Barb. 463. 
 
 130. Money paid by indorser. Where the 
 indorser of a promissory note, whose real estate 
 was sold on a judgment obtained against him 
 by the holder, after satisfaction of the judgment 
 by the maker, who was ignorant of the sale, paid 
 the amount of tlie bid and received an assign- 
 ment of the certificate of sale from the holder, 
 who was also the holder of the judgment, but, 
 on discovery of the fraud practiced by the latter, 
 sued him therefor, recovering judgment, only 
 part of which was collected, — Held, thjithe could 
 not maintain an action against the maker of the 
 note for the balance. Ct. App., 1871, Cross v. 
 Uaiher, 46 N. Y. (1 Sick.) 689. 
 
 131. — on rescinded contract. An action 
 will not lie, in favor of a party for whose default 
 a contract is rescinded, to recover back money 
 paid by him thereon. Ct. App., 1870, Havens r. 
 Patterson, 43 N. Y. (4 Hand,) 218. 
 
 See MoNKT had, &o. 
 
 132. Municipal ordinance. The trustees 
 of a village Cd,nnot maintain an action against 
 an individual upon a resolution passed by them, 
 whereby they " resolved and ordained " that 
 such individual, naming him, be required to 
 remove an awning in front of his store, 
 within forty-eight hours after service of no- 
 tice on him, " under a penalty of twenty-five 
 dollars thereby imposed on him, for failure or 
 neglect to comply with this ordinance." Sup. 
 Ct., 1872, Trustees of the Village of Canajokarie 
 V. Buel, 43 How. \bb. 
 
 133. Mutual mistake of la-w. An Assignor 
 of all riglits under a grant of a ferry privilege, 
 which purports to be exclusive, is not respon- 
 sible for the loss or gain of the contract, if he 
 did' not covenant that the privilege was exclu- 
 sive ; especially where the other party has not 
 rescinded the contract, nor offered to restore 
 what he has acquired under it. Sup. Ct., 1873, 
 Carpentier v. Minium, 65 Barb. 293. 
 
 134. Where both parties acted under the 
 supposition tliat the right was exclusive, when 
 in fact the grantor had no power to grant an 
 exclusive riglit, the mistake being one of law, 
 no claim for damages can arise out of it. lb. 
 
 135. Obstructing street. One who has had 
 full and undisturbed possession and enjoyment 
 of an easement or right of way over a strip of 
 land laid out on a city map as a proposed street, 
 the centre line of which is the boundary of his 
 land, such easement having been reserved to 
 the grantor, her heirs or assigns, in the original 
 deeds of lots on both sides of the street, and ac- 
 cepted aUd used by the grantees and those 
 
 claiming under tliem for twenty years, without 
 any acceptance of the street by the public au- 
 thorities, cannot maintain an action against an 
 adjoining owner on tlie opposite side, to compel 
 him to remove fences and obstructions from his 
 halt of the proposed street, and have the same 
 thereafter kept open and unobstructed as a 
 street. N. Y. C. P., 1874, GrinneU v. Kirtland, 
 48 How. 17. 
 
 136. Obtaining deed of premises con- 
 tracted to ano&er. In the absence of evi- 
 dence, either of fraud or conspiracy, a vendee 
 of lands under written contract cannot maintain 
 an action for his damages against one who, by 
 offering a larger price, induces his vendor to 
 convey the land to him ; his remedy being 
 against his vendor only. Cora. App., 1872, ^sA- 
 ley v. Dixon, 48 N. Y. (3 Sick.) 430. 
 
 137. Property delivered on compromise. 
 Wliere a father, having given his married 
 daughter certain articles of furniture, demands 
 them of the surviving husband after death 
 without children, claiming under her promise, 
 made without the knowledge of her husband, 
 that they should be returned to him if she died 
 childless, and the husband, after consulting a 
 lawyer, delivers them up to him, an action can- 
 not afterwards be maintained by such husband to 
 recover back the property. James J., dissents. 
 Sup. Ct., 1876, Taplin v. Wilson, 4 Hun, 244. 
 
 138. Purchase inoney. Wliere, in pursu- 
 ance of a parol contract for the sale of lands, 
 a deed is fully executed by the vendor and left 
 with .a third party to be delivered to the pur- 
 chaser upon his paying the agreed price, no title 
 passes thereby to such purchaser, until delivery ; 
 and no action can be maintained by such vendor 
 to recover the price agreed upon, either as the 
 purchase price of lands sold, or upon such deed 
 as a memorandum of the contract. Ct. App., 
 1871,Ca(7.7er v. Lansing, 43 N. Y. (4 Hand,) 550. 
 
 139. Against purchaser subject to mort- 
 gage. A purchaser of mortgaged chattels at a 
 public sale thereof, assenting to an announce- 
 ment there made that tliey are sold suliject to 
 the mortgage, the terms of which the purchaser 
 will have to comply witli, is not liable for tlie 
 amount of the mortgage ; nor does he become 
 liable by selling or attempting to sell a clear 
 title to the property so pnrcliiised. Com. App., 
 1872, Hnmill v. Gillespie, 48 N. Y. (3 Sick.) 556. 
 
 140. To recover back illegal tax. An ac- 
 tion will not lie against a municipal corporation 
 to recover back taxes illegally assessed, collected 
 and paid into its treasury, so long as the assess- 
 ment remains in force and unreversed. Ct. 
 App., 1870, Bank of Commonwealth v. Mayor, etc., 
 o/JSfew York, 43 N. Y. (4 Hand,) 184. 
 
 141. To recover reward. A party who 
 had no knowlege of, and did not act in reference 
 to a reward offered for the recovery, or informa- 
 tion- leading to the recovery of property, cannot 
 maintain an action for such reward, although 
 he recovered the property ; nor can he do so, 
 where he furnished information, but before it 
 could be acted on the property was found and 
 restored by another. Com. App., 1873, How- 
 land V. Lmnds, 61 N. Y. (6 Sick.) 604. 
 
 142. Right to office. An action will not 
 lie for the' purpose of testing indirectly the right 
 of the defendants to an office. The remedies 
 given by section 432 of the Code, and 1 R. S. 603, 
 section 5, for testing the title of ofiicers of a cor- 
 poration by direct action for that purpose, or by a 
 summary inquiry, are exclusive. N. Y. Supr. 
 Ct., Sp. T., 1878, Hudson Riv., etc., R. R. Co. v. 
 Kay, 14 Abb. N. S. 191. 
 
14 
 
 ACTIONS. 
 
 143. Thus, persons claiming to be the right- 
 ful direutors of a corporation, cannot maintain 
 an action, in the name of tlie company, against 
 the de facto directors, ostensibly to enforce a 
 claim in favor of the company, but really for 
 the purpose of indirectly trying the title of the 
 defendants to their offices. lb. 
 
 144. Salary. One who claims to have been 
 elected assistant alderman of a city, and has 
 been so declared upon quo warranto brought 
 on his relation against his opponent, but has 
 never been admitted to a seat in the board, nor 
 discharged any of the duties of the office, can- 
 not maintain an action against the city to re- 
 cover the salary attached to the office for the 
 term for which he claims to have been elected. 
 His remedy, if any, is against those who re- 
 ceived such salary, or who wrongfully excluded 
 him from the office. Sup. Ct., 1874, McVeany 
 V. Mayor, etc., of New York, 1 Hun, 35. 
 
 145. Sale under mortgage. •A. mortgagee 
 of chattels who takes possession after default, 
 and sells only the interest of the mortgagor and 
 of himself therein, or sells in general terms with- 
 out taking any notice of the existence of a prior 
 lien, is not liable in an action of trespass or 
 trover to the mortgagor or the prior lienor. N. 
 Y. 8upr. Ct., 1875, Hale,\. Omaha Nat. Bank, 
 39 N. Y. Supr. (7 J. & Sp.) 207. 
 
 146. Services rendered on void contract. 
 It seems that in order to entitle a party who has 
 performed services upon a contract which is 
 void, as not to be performed in three years, to 
 recover upon a quantum meruit, he must show 
 the other party in default. Ct. App., 1871, Gal- 
 vin V. Prentice, 45 N. Y. (6 Hand,) 162. 
 
 147. Subscription. A subscription, where- 
 by the signers agree to pay a certain sum eacli 
 to one T, to be expended in the repair of a 
 road, creates no liability in such signers, either 
 to a stranger or to one of their own number, who 
 makes such rep.iirs at an expense equal to the 
 full amount subscribed, but not under their 
 direction or that of T, although T, after the 
 completion of the repairs, assigns the subscrip- 
 tion to him. Com. App., 1870, Van Rensselaer v. 
 Aiken, 44 N. Y. {5 Hand) 126; Kev'g S. C, 44 
 Barb. 547. 
 
 148. — to form company. A person who 
 has signed a subscription paper by which he 
 agreed to unite with others in forming a joint 
 stock or incorporate companj' for certain speci- 
 fied purposes, is not liable to an action on his 
 subscription by a corporation organized by the 
 other subscribers under the general law, whose 
 expressed objects included other business than 
 that mentioned in his subscription. Ct. App. 
 1876, Dorris v. Sweeney, 60 N. Y. (15 Sick.) 463 ; 
 Aff'g S. C, 64 Barb. 636. 
 
 149. The legal and effectual formation of a 
 corporation or joint stock company is a condi- 
 tion precedent to the liability of the subscriber, 
 lb. 
 
 150. To set aside fraudulent convey- 
 ance, etc. A creditor at large, who has not 
 exhausted his legal remedy by judgment and 
 execution, cannot maintain an action in equity 
 to test the validity of a judgment obtained 
 against his debtor and a mortgage alleged to 
 have been executed by him in fraud of his cred- 
 itors. N. Y. C. P., 1870, Bownes v. Wdd, 3 Daly, 
 263. 
 
 161. To set aside lien. The owner of 
 premises affected by a mechanic's lien, hav- 
 ing power to compel the lienor, upon ten days' 
 notice, to proceed with his lien or suffer it to be 
 discharged, cannot maintain an action in equity 
 
 to set the lien aside. N. Y. C. P., Sp. T., 1869 
 Spratt v. Nicholson, 3 Daly, 182. 
 
 152. To subject property to attach- 
 ment. A sheriff having attempted, in an ac- 
 tion against a non-resident, to levy an attach- 
 ment upon a bond and mortgage executed to 
 the defendant, but assigned by him, as it wis 
 claimed with a fraudulent intent, by leaving a 
 copy of the attachment and a notice with the 
 obligor ; — Held, that the attaching creditor could 
 not, after obtaining judgment, maintain an ac- 
 tion against the defendant and his assignee to 
 set aside the assignment as fraudulent, and to 
 subject the bond and mortgage to the lien of 
 the attachment. Ct. App., 1872, Thurber v. 
 Blanch, 50 N. Y. (6 Sick.) 80. See Contra, Me- 
 chanics and Traders Bank v. Dakin, 51 N. Y. 
 (6 Sick.) 519. 
 
 153. TTse and occupation. An action for 
 use and occupation will not lie, under 1 K. S. 748, 
 section 26 (1 Edm. Stats. 698), unless the conven- 
 tional relation of landlord and tenant exists be- 
 tween the parties. Sup. Ct., 1871, Thompson 
 V. Bower, 60 Barb. 463. 
 
 154. One who occupies under an agreement 
 to purchase is not a tenant but a vendee, and 
 therefore, such an action will not lie against 
 him on his failiu-e to complete the purchase, 
 even though the agreement is by parol and 
 void. lb. 
 
 155. Wilful act of servant. An action 
 will not lie against a street railway company, 
 under the statute relating to the law of the road, 
 &o. (1 Edm. Stats. 649), for a wilful injury 
 committed by the driver of one of its cars. Com. 
 App., 1872, Whitaker v. Eighth Ave. R. R. Co., 51 
 N. Y. (6 Sick.) 295 ; Eev'g 5 Bob. 65. 
 
 4. Given by statute. 
 
 156. Causing intoxication. A right of 
 action exists under chapter 646, Laws of 1873, 
 against the vendor or giver of the liquor caus- 
 ing intoxication from which it is claimed that 
 damages have been sustained, only in cases 
 where an action would lie against the intoxicat- 
 ed person also. Sup. Ct., 1875, Hayes v. Phelan, 
 4 Hun, 738. 
 
 157. An action will not lie under that act, in 
 favor of a widow, for causing the intoxication 
 and consequent death of her husband, and there- 
 by depriving her of his companionship and sup- 
 port, lb. 
 
 158. An action may be maintained under 
 that act by any person who is injured in person, 
 property, or means of support by any intoxicat- 
 ed person or in consequence of such intoxica- 
 tion, without reference to his particular capaci- 
 ty or relationship. Sup. Ct., 1875, Jackson v. 
 Broohins, 5 Hun, 630. 
 
 159. A joint action may be maintained 
 against a tenant who sold tlie liquor, and his 
 landlord, but not against two or more persons, 
 who, separately and at different times and places, 
 sold liquor to the same person, contributing to 
 produce the intoxication which caused the in- 
 jury, lb. 
 
 160. The sale of intoxicating liquors to ha- 
 bitual drunkards is expressly prohibited by 
 statute, and an action given to any person sus- 
 taining injuries in consequence of such sale ; 
 and so far as the estate or property of the pur- 
 chaser is injured by the sale, an action may be 
 maintained by his executors or administrators 
 after his death to recover damages therefor. 
 Sup. Ct., 1874, Kilburn v. Coe, 48 How. 144. 
 
 161. Destruction by mob. - One who pur- 
 
ACTIONS. 
 
 15 
 
 chased personal property and advanced all the 
 purchase-money, under an agreement to convey 
 it to a third party on liis paying the money 
 advanced, lias the title and right to the posses- 
 sion of the property, and that is suflBcient to 
 enable him to maintain an action against a city 
 in which it is destroyed by a mob, to recover its 
 value. Sup. Ct., 1872, Orr v. Mayor, etc., oj 
 New York, 64 Barb. 106. 
 
 162. For pilot fees, after services 
 refused. Where tlie master of a vessel refuses 
 to take a pilot on entering the port of New York by 
 way of Sandy Hook, an action for pilot fees may, 
 under the act of 1857 (4 Edm. Stats. 81, § 18), 
 be maintained against one, as " consignee" of 
 such vessel, who took charge of her on her ar- 
 rival, collected her freiglit, paid her bills, and 
 cleared her for another voyage ; and this, 
 whether he was authorized so to do by the own- 
 ers or not. N. Y. C. P., 1872, Gillespie v. Win- 
 berg, 4 Daly, 318. 
 
 163. For ■wager. Under the statute, an ac- 
 tion lies against a stakeholder for money depos- 
 ited with him on a wager, whether he has paid 
 it over to another or not ; and this is so, even 
 if it was paid over with tlie authority and con- 
 sent of the depositor. N. Y. Supr. Ct.,1875 ; Ma- 
 honey V. O'Callaghan, 38 N. Y. Supr. (6 J. & Sp.) 
 461. 
 
 6. Against public officers. 
 
 164. Against assessors. One who is as- 
 sessed for personal property in a town in wliich 
 he does not reside, can maintain an action 
 against the assessors by whom he was so assessed 
 individually, to recover the damages sustained 
 by him in consequence thereof. Sup. Ct., 1871, 
 Bailey v. Buell, 59 Barb. 158. S. P. Wade v. 
 Matheson, 4 Lans. 158 ; Aff'd, 47 N. Y. (2 Sick.) 
 658. 
 
 165. In order to maintain such action it is 
 not necessary for him to show that he is a tax- 
 able inhabitant of some other town ; nor can the 
 defendants show the contrary by way of de- 
 fense, lb. 
 
 166. A person so illegally assessed can main- 
 tain an action against the assessors to recover 
 his damages, even though the question of his 
 residence was at the time fairly one of doubt 
 upon the facts known to them. Com. App., 1874, 
 Darwin V. Strickland, 67 N. Y. (12 Sick.) 492. 
 
 167. High-way commissioners, having 
 funds in their hands for that purpose, or means 
 of obtaining them, are bound to repair defective 
 highways and bridges, after notice of their con- 
 dition, with reasonable care and diligence ; and 
 will be liable to any one sustaining special dam- 
 age from their neglect to do so. It seems, 
 actual notice of the defect would not be 
 necessary, where ignorance itself would be 
 culpable. Com. App., 1870, Hover v. Bark- 
 hoof, 44 N. Y. (5 Hand,) 113. 
 
 168. Inspectors of election. An action 
 cannot be sustained against inspectors of elec- 
 tion for refusing to receive the vote of a per- 
 son qualified to vote, without proof of malice. 
 Sup. Ct., 1871, Goetcheus v. Matthewson, 5 Lans. 
 214 
 
 169. Where a resident voter was challenged 
 as a deserter from the U. S. military service, 
 and took tlie preliminary oath and offered to 
 take the general oath, but refused to answer 
 questions touching his desertion, and the inspec- 
 tors rejected his vote, tliere being no evidence 
 of malice except that they were told by a person 
 present that the law dedaring deserters disquali- 
 
 fied had been held unconstitutional, and that the 
 Secretary of State liad expunged from tlie forms 
 for tlieir use tlie questions insisted on by them ; 
 —Held, they must be deemed to have acted 
 judiciously in rejecting tlie vote, and without 
 malice, and a nonsuit was properly granted. lb. 
 
 170. School district collector. The only 
 remedy that school trustees have against the 
 collector is by action on his bond ; Ist, wlien he 
 fails to execute his warrant, and ; 2d, when, by 
 his laches any tax is lost to his district, or he has 
 neglected to pay over any balance in liis liands 
 to his successor. They cannot maintain an 
 action against him for not paying over money,_ 
 for which no order has been drawn upon and 
 presented to him. Sup. Ct., 1876, Woodhull v. 
 Bohenhlost, 1 Hun, 399. 
 
 171. Street superintendent. The owners 
 of village lots adjoining a street which has been 
 dedicated, accepted and opened, cannot maintain 
 an action against an officer acting under the 
 municipal authorities for cutting trees and clear- 
 ing away obstructions in a portion of such street 
 which had not been worked j but they can 
 maintain an action for the use or conversion of 
 such trees except for the purpose of fitting the 
 street for the use by the public. Sup. Ct., 1871, 
 Niagara Falls Suspension Bridge Co. v. Bach- 
 man, 4 Lans. 523. 
 
 172. Neitlier can they maintain an action for 
 the taking and removal of gravel from such por- 
 tion of tlie street for use on other streets. lb. 
 
 173. To-wn supervisor. Where, during the 
 civil war, a supervisor as a member of a war com- 
 mittee appointed by liis town for the purpose of 
 procuring men to fill the quota of the town, 
 received and disbursed large sums of money 
 raised upon the bonds of the town, — Held, that 
 such moneys were received by him " by virtue 
 of his office," within the meaning of 1 K. S. 349, 
 section 6, as amended by cli. 534, Laws of 1866, 
 and that an action was properly brought against 
 him in the name of the town, under those statutes, 
 to recover a balance of sucli moneys claimed to 
 he in his hands not duly accounted for. " Ct. App., 
 1874, Town of Guilford v. Cooley, 68 N. Y. ( 13 
 Sick.) 116. 
 
 174. The amendment of 1866 is remedial, 
 and therefore extends to cases occurring before, 
 as well as subsequent to its passage. 
 
 176. The remedy is not restricted to an in- 
 cumbent of the office at the time proceedings 
 are commenced, but authorizes proceedings 
 against the present or any fornier supervisor, 
 who shall not have accounted as required by law, 
 either by mandamus to compel him to account, 
 or by action to recover any money in his hands 
 unaccounted for. lb. 
 
 6. Splitting causes of action. 
 
 176. Compromise of suit for part. All 
 claims under a contract, due at the time action 
 is commenced, form one entire and indivisible 
 cause of action, and a judgment in such action 
 will be a bar to any further action founded upon 
 such claims. Ct. App., 1871, O'Beirne v. Lloyd, 43 
 N. Y. (4 Hand,) 248. 
 
 177. A voluntary compromise of the claim 
 made in an action, which embraces part only of 
 an entire demand, fixing the plaintiff's claim at 
 a certain sum and allowing judgment to be 
 entered therefor, with costs, in case of default 
 in payment according to the terms of the stipula- 
 tion, will have tlie same effect as the entry of a 
 judgment, and be a bar to any further action on 
 such demand. lb. 
 
16 
 
 ACTIONS. 
 
 178. Bar to defense not pleaded. All 
 
 controversies respecting the subject-matter of 
 the litigation should be determined in one action ; 
 and where a release pleaded in bar of an action 
 for a debt, was obtained by fraud, the plaintiff 
 should show that fact in such action, and if he 
 neglects so to do, he cannot afterward maintain 
 an action to set aside such release for the fraud. 
 Sup. Ct., 1875, Dambman v. Schultirig, 4 Hun, 50. 
 
 7. Election of remedies. 
 
 179. Action or resale. If, on the refusal of 
 a purchaser of property to accept and pay for 
 it, the seller commences an action for the price, 
 he thereby elects his remedy, and has no right 
 afterward to resell the property, or to disaffirm 
 the contract. Sup. Ct., 1872, West/all v. Peacock, 
 63 Barb. 209. 
 
 180. Contract or tort. Where an agent, 
 employed to negotiate a purchase of certain 
 securities, undertook to account for and pay 
 over all moneys and deliver all securities belong- 
 ing to his principal to the latter, but, instead, 
 converted the securities, to his own use, such 
 principal had his election to proceed for breach 
 of the contract or for the conversion, and having 
 chosen the former, he could interpose it by way 
 of counterclaim to an action brought by the 
 agent upon the contract. Ct. App., 1872, Coit v. 
 Stewart, 60 N. Y. (5 Sick.) 17. 
 
 181. If a person entrusted with a canal boat 
 for a particular purpose, wrongfully uses it to 
 carry a cargo of oats, collects the freight, and 
 then leaves it uncared f or, and the owners of the 
 cargo interfere with and unload the boat after 
 the owner thereof has taken it into his possession 
 and notlned them ef his rights, they are tres- 
 passers and liable to him for all damages sus- 
 tained by him ; but he may waive the tort, and 
 sue on the implied promise to pay for the use of 
 the boat for storage after he took possession, 
 and for the expenses of unloading which he has 
 been compelled to pay as being a lien on the 
 boat. He cannot, however, collect the freight. 
 Sup. Ct., 1869, Beadle v. Whitlock, 64 Barb. 287. 
 
 182. Wliere a purchaser of goods from one 
 who falsely assumed to be the owner refused to 
 deliver them on demand to the true owner, the 
 latter may waive the tort and bring an action in 
 assumpsit. Ct. App., 1873, McGoldrick v. Wil- 
 lits, 52 N. Y. (7 Sick.) 612. 
 
 183. On contract to purchase. A vendor, 
 upon the refusal of the vendee to receive the 
 property agreed to' be purchased, may elect to 
 tender the property and sue for and recover the 
 contract price, or to keep the property and sue 
 for and recover the difference between the con- 
 tract price and the market price at the time fixed 
 for the delivery, even though such property sub- 
 sequently rises in value. Ct. App., 1875, Bridg- 
 fard v. Crocker, 60 N. Y. (15 Sick.) 627. 
 
 184. Corporate liability. A creditor of a 
 manufacturing corporation does not lose his 
 remedy against its trustees, whose liability for 
 his debt has become fixed by their failure to 
 make and file their annual report, by taking the 
 notes of the corporation in renewal of his debt, 
 or by recovering a judgment against the cor- 
 poration therefor. N. Y. Supr. Ct., 1874, Jones 
 v. Barlow, 38 N. Y. Supr. (6 J. & Sp.) 142. 
 
 185. Elements of damage. In an action by 
 a tenant against his landlord to recover damages 
 for his unlawful removal from the premises by 
 summary proceedings, alleging as items of 
 damages, the deprivation of the possession, and 
 the destruction of a building erected by him 
 
 thereon which he claims to own as personal prop- 
 erty, he is not bound to elect which he will claim, 
 the building or the rent, at least until specifically 
 called on to do so, but may submit the evidence 
 as to both to the jury. N. Y Supr. Ct., 1874, 
 Eten V. Luyster, 37 N. Y. Supr. (5 J. & Sp.) 486. 
 
 186. Inconsistent remedies. A party 
 having an election of two remedies which are 
 inconsistent with each other, cannot after pros- 
 ecuting one to a judgment, have recourse to 
 the other, although he may fail to collect the 
 whole judgment. Ct. App., 1871, Goss v 
 Mather, 46 N. Y. (1 Sick.) 689. 
 
 187. A part owner of a vessel, whose co- 
 owner has attempted to dispose of the whole, 
 having chosen to take and retain possession 
 against the claims of the purchaser, upon the 
 assertion that the sale by his co-tenant had not 
 divested his title, cannot afterward abandon the 
 property and sue such co-tenant for a conver- 
 sion. Ct. App., 1871, Rodermund v. Clark, 46 N. 
 Y.'(l Sick.) 354. 
 
 188. A party who has claimed and been al- 
 lowed for property taken from liim by the sher- 
 iff on an execution against his vendor, in an ac- 
 tion by the assignee in bankruptcy of his ven- 
 dor to recover it back on the ground that it was 
 fraudulently purchased by him from such ven- 
 dor, cannot afterward maintain an action 
 against the execution creditor for the property 
 so taken. Sup. Ct., 1875, King v. Galvin, 4 Hun, 
 258. 
 
 189. A judgment debtor who commences an 
 action against his creditor to recover a claim 
 in his own favor, and in such action attaches 
 the defendant's judgment against himself, can- 
 not, while the attachment suit is pending, main- 
 tain an action in equity to set off the claim sued 
 on against such judgment. Sup. Ct, 1875, Butler 
 V. Wehle, 4 Hun, 54. 
 
 190. To remove cloud. The Code (§ 449) 
 gives to a party desiring to determine conflict- 
 ing claims to real property, a choice of reme- 
 dies, viz : by action under that section, or by 
 special proceedings under the Revised Statutes. 
 Com. App., 1871, Fisher v. Hepburn, 48 N. Y. (3 
 Sick.) 41. 
 
 191. For repairs of vessel. A party who re- 
 pairs a vessel has two remedies, one in personam 
 against the owner, and the other in rem against 
 the vessel, under chapter 482, Laws of 1862, 
 unless by express agreement he has relinquished 
 one of them. While the lien exists he may a1> 
 tempt to enforce either, and if he fails, may re- 
 sort to the other. Com App., 1874, Mott v. Lan- 
 sing, 57 N. Y. (12 Sick.) 112. 
 
 192. Simultaneous remedies. A sub-con- 
 tractor for the repair of a building, who receives 
 the note of a third party as collateral security 
 for the payment of his work, can maintain an 
 action on such note simultaneously with one to 
 enforce^ mechanic's lien filed by him against 
 the premises ; but there can be only one satis- 
 faction. Ct. App., 1874, Gambling v. Haight, 59 
 N. Y. (14 Sick.) 354. 
 
 193. Effect of as a -waiver. An election of 
 one of two inconsistent remedies, whenever 
 made, is final and conclusive upon the party, 
 and a waiver of the other remedy. Sup. Ct., 
 1876, Wright v. Pierce, 4 Hun, 351. 
 
 194. The receipt of money for part of the 
 claim made for the value of bonds by the owner, 
 after their conversion, is not a waiver of the 
 tort, and does not absolve the wrong-doer from 
 the consequences of the wrongful act, but mere- 
 ly operates in mitigation of damages. Sup. Ct., 
 1875, Lamlertson V. Van Boskerk, 4 Hun, 628. 
 
ACTIONS. 
 
 17 
 
 195. When a wrong-doer sells property ille- 
 gally' taken by him, the owner may waive the 
 tort and sue for money had and received ; and 
 when the property taken is money, he need not 
 wait for such a sale, but may sue for and re- 
 cover it in such action. Sup. Ct., 1873, Tryon 
 V. Baker, 7 Lans. 511. 
 
 196. Where bonds pledged to secure a loan 
 of money are sold by the pledgee in an unau- 
 thorized manner, the pledgor has his election to 
 ratify the sale and claim the benefit of the sur- 
 plus, or repudiate it and sue for a conversion. 
 Ct. App., 1871, Strong v. National Mechanics 
 Banking Association, 46 N. Y. (6 Hand,) 718. 
 
 197. One who makes a loan upon securi- 
 ties which he afterward learns to be forged, has 
 his election to affirm and sue upon the contract, 
 or bring an action for the tort ; but, having 
 elected to do the former, he cannot afterward 
 discontinue and sue for the tort, especially 
 when the rights of other parties have inter- 
 vened. N. Y. C. P., 1871, Benedict v. National 
 Bank of the Commonwealth, i Daly, 171. 
 
 198. The right of the lender, in such case, 
 to waive the tort, in the civil action, is not af- 
 fected by the fact, that a criminal action lies 
 for the same oHense. lb. 
 
 199. A plaintiff who commences a suit by 
 service of a summons for money only, without 
 complaint, and proceeds to take judgment by 
 defaiilt, thereby elects to pursue his remedy on 
 contract, and waives any fraud there may have 
 been in contracting the debt, although alleged 
 in his complaint ; and cannot, on motion for 
 leave to issue execution after five years, go back 
 of the judgment and show that, by reason of 
 such fraud, the debt was not affected by the 
 subsequent discharge of the debtor in bank- 
 ruptcy. N. Y. Supr. Ct., 1871, Shuman v. Strauss, 
 34 N. Y. Supr. (2 J. & Sp.) 6 ; Aff'd S. C, 62 
 N. Y. (7 Sick.) 404. 
 
 8. Local or transitory. 
 
 200. An action to have the title to land 
 declared to be in the plaintiffs, on the ground 
 that the deed conveying the same to the defend- 
 ant is a mortgage, and also asking for a re-con- 
 veyance to the plaintiffs, and an accounting by 
 the defendant, is one for the recovery of an in- 
 terest in real estate and for the determination 
 of such interest, within the meaning of subd. 1, 
 section 123, of the Code, and must be tried in 
 the county where the property is situated. Ct. 
 App., 1871, Bush V. Treadwdl, 11 Abb. N. S. 27. 
 
 201. That section appMes to equitable as well 
 as to legal actions. lb. 
 
 202. Trespass, and other actions for injuries 
 to real estate are local, and cannot be brought 
 bevond the jurisdiction where the land is situ- 
 ated. N. Y. Supr. Ct., Sp. T., 1874, Humermund 
 V. Erie Bailway Co., 48 How. 55. 
 
 203. Negligence, damages to real estate. 
 A carrier can maintain an action here against 
 one who shipped nitro-glycerine by his line from 
 New York to California, without notifying him of 
 the nature of the shipment, to recover the dam- 
 ages caused by an explosion of the package 
 when being examined for the purpose of repair- 
 ing a leakage, although such explosion took 
 place at San Prancisco, and the damages were 
 in part to real estate there ; the action being in 
 its nature personal and transitory. Sup. Ct., 
 1872, Barney v. Burstenbinder, 7 Lans. 210 ; S. C, 
 64 Barb. 2l'2. 
 
 204. Replevin. The taking of property upon 
 a chattel mortgage, whether wrongful or not, is 
 
 2 
 
 not a distress, within the meaning of section 123 
 of the Code, and an action for the recovery of 
 such property is not *ocal in its nature. N. Y. 
 0. P., 1871, Boyd v. Howden, 8 Daly, 455. 
 
 205. Slander is not a wrong of a local char- 
 acter, but an action maybe maintained in the 
 courts of this State for slanderous words spoken 
 in another State. Ct. App., 1869, Boynton v. 
 Boynton, 43 How. 380. 
 
 206. tJsury. An action to recover back usuri- 
 ous interest paid, and collateral securities de- 
 livered in violation of tlie statute against usury, 
 is not local, but transitory. Brooklyn City Ct., 
 1873, Wheelock v. Lee, 15 Abb. N. S. 24. 
 
 9. Demand or tender be/ore action, 
 
 207. Bank deposit. No action can be main- 
 tained against a bank for money deposited 
 therein until after a demand has been made 
 therefor ; and where it has issued a certificate 
 of deposit, payable on its return properly in- 
 dorsed, such certificate must also be presented. 
 Sup. Ct, 1876, Nat. Bank of Fort Edward v. 
 Washington Co. Nat. Bank, 6 Hun, 605. 
 
 208. If, after the holder of a check has 
 presented it at the bank, and its amount has 
 been entered in his deposit book, it is returned 
 to him with a statement that it is not good, and 
 he immediately takes it back to the bank, 
 claiming that it has been received as a deposit, 
 and asks that it be credited on the bank books, 
 that is a sufficient demand to sustain an action 
 for. its amount. Ct. App., 1871, Oddie v. Nat. 
 City Bank o/N. Y., 46 N. Y. (6 Hand) 735. 
 
 209. Conversion. An action of trover will 
 not lie against a person who came lawfully into 
 the possession of personal property, until after 
 a demand has been made ; but, if such demand 
 is proved on the trial, though not alleged in tlie 
 complaint, such complaint may be amended in 
 that respect, even on appeal to the General Term. 
 Sup. Ct., 1874, Tripp V. Pulver, 2 Hun, 511. 
 
 210. By unauthorized sale. If a broker 
 sells bonds held by him on marginal security for 
 a customer, without authority and without 
 notice, he is liable as for an unlawful conver- 
 sion, and no demand of the bonds is necessary 
 before suit against him. Brooklyn City Ct., 
 1871, Read v. Lambert, 10 Abb. N. S. 428. 
 
 211. Money received. Where money is re- 
 ceived by one person for the use of another, he 
 is bound to pay it over, and no demand is neces- 
 sary before action brought ; but, if necessary, 
 his action in stopping payment of his check, 
 which has come to the possession of the other, 
 is equivalent to demand and refusal. Ct. App., 
 1871, Howard v. France, 43 N. Y. (4 Hand,) 593. 
 
 212. — on a void contract. In order to en- 
 able a grantor of lands to recover their value, 
 for a failure of the grantee to perform a contract, 
 made as the consideration for the conveyance, 
 which was void by the statute of frauds, no ten- 
 der of the amount realized by him from a par- 
 tial performance by the grantee is necessary, 
 before action brought. Com. App., 1873, Day v. 
 New York Cent. R. R. Co., 51 N. Y. (6 Sick.) 583. 
 
 213. — by one asserting hostile rights. 
 Where the treasurer of a corporation, who has 
 received money belonging to it, asserts rights 
 thereto inconsistent with the claims of the cor- 
 poration, and has made entries in the corpora- 
 tion books in extinguishment of his obligation to 
 pay over the money, no demand by the corpora- 
 tion is necessary before suit brought to recover 
 the money. Sup. Ct., 1875, East N. Y. §• Jam. 
 R. R. Co. V. Elmore, 5 Hun, 214. 
 
18 
 
 ACTIONS. 
 
 214. — on illegal tax. When money Is re- 
 ceived by a county through the illegal act of its 
 own officers in levying a tax, no demand is ne- 
 cessary before action brought to recover it back. 
 Ct. App., 1871, Newman v. Supervisors of Living- 
 ston Co., 45 N. Y. (6 Hand) 676. 
 
 215. — by sheriff. An action can be main- 
 tained by the plaintiff in an execution against 
 tlie sheriff, to recover moneys collected by him 
 on such execution and not paid over or brought 
 into court, without any previous demand. Tlie 
 change in the form of the execution has not 
 changed the rule. Ct. App., 1874, Nelson v. 
 Ke,T, 59 N. Y. (14 Sick.) 224. 
 
 216. Non-delivery. Where, by the terms of 
 a contract for the sale of goods to be delivered 
 by a time certain, and by the acts of the par- 
 ties, time appears not to be of the essence of the 
 contract, no demand before the time fixed is 
 necessary, in order to sustain an action for a re- 
 fusal to deliver after that time. Ct. App., 1870, 
 O'Neil V. James, 43 N. Y. (4 Hand) 84. 
 
 217. If the vendor wishes to conclude the 
 vendee from demanding a delivery after the 
 time, he should tender the whole amount unde- 
 livered, lb. 
 
 218. Replevin will not lie for personal prop- 
 erty which came lawfully into the possession of 
 the defendant, unless demand is made therefor 
 after the defendant's right to its possession has 
 terminated. Sup. Ct., 1871, White v. Brown, 5 
 Lans. 78. 
 
 219. A covenant by the lessee of real and 
 personal property to deliver up such personal 
 property at the termination of the lease, does 
 not render a demand by the lessor after the 
 termination of the lease unnecessary, before 
 bringing replevin. lb. 
 
 220. A party claiming goods which are 
 lawfully in the possession of another under an 
 assignment for the benefit of creditors, must de- 
 mand the same before lie can maintain an ac- 
 tion to recover the possession thereof. N. Y. 
 Supr. Ct., 1873, Talcoit v. Belding, 46 How. 419 ; 
 S. C, 36 N. Y. Supr.(4 J. & Sp.)'84 
 
 221. — for exempt property. The owner 
 of exempt property which has been levied upon 
 hj virtue of an execution against him, cannot 
 maintain an action against the officer therefor 
 without having claimed his right to it as ex- 
 empt, either at the time of the levy or within a 
 reasonable time after notice thereof. Sup. Ct., 
 1871, Twinam v. Swart, 4 Lans. 263. 
 
 222. Neither can he maintain such action 
 against a bona fide purchaser of such property 
 at the execution sale without a previous demand 
 thereof. lb. 
 
 223. — in case of fraudulent possession. 
 A demand of personal property before suit for 
 its recovery is necessary only when the defend- 
 ant is lawfully in possession. If he obtained it 
 fraudulently, or with knowledge of the fraud of 
 the person from whom he purchased it, no de- 
 mand is necessary. Sup. Ct., 1874, Salomon v. 
 Van Praag, 48 How. 338. 
 
 224. To restrain prosecution of securi- 
 ties for usurious loan. An action to re- 
 strain the prosecution of securities given upon a 
 usurious loan or to compel their surrender may 
 be sustained without previous demand. The 
 title thereto still remains with the borrower, 
 and the possession of the lender is a tortious, 
 not a lawful, possession. Brooklyn City Ct., 
 1873, Wheeloch v. Lee, 15 Abb. N. S. 24. 
 
 226. At time and place. Upon a sale of 
 goods for a fixed price, payable at a specified 
 time and place, no demand at such time and 
 
 place is necessary before suit. The rule appli- 
 cable to bills and notes so made payable, that 
 the commencement of the suit is a sufficient 
 demand, applies also to such contracts. Sup. 
 Ct., 1871, Locklin v. Moore, 5 Lans. 307 ; Aff'd 
 S. C.,27N. Y. (12Sick.)360. 
 
 226. Time. On an instrument executed by a 
 corporation acknowledging the receipt of a cer- 
 tain sum in work, &c., and promising to pay 
 therefor on demand after Nov. 1 in bonds, a 
 demand made Nov. 2 is sufficient before suit^ 
 The instrument is not entitled to days of grace. 
 Sup. Ct., 1873, Pusey v. New Jersey West Line 
 R. R. Co., 14 Abb. N. S. 434. 
 
 227. Place. Although such corporation was 
 chartered by another State, a demand at an 
 office kept by it in this State is sufficient if not 
 objected to on that 'ground. lb. 
 
 228. Tender. The mere assertion by a 
 lienor of a lien greater in amount than he is 
 entitled to, without any act to enforce it, does 
 not obviate the necessity of tendering the sum 
 to which he is entitled before commencing an 
 action for the property upon which he claims a 
 lien ; but where he absolutely refuses to deliver 
 up the property unless the full amount so 
 claimed by him is paid, it would be idle to 
 make a tender, -and none is necessary. Sup. 
 Ct., 1872, Hoyt V. Sprague, 61 Barb. 497. 
 
 229. So held where a carrier of grain refused 
 to deliver to the consignee unless the full 
 amount of freight was paid, without any deduc- 
 tion for damages or short delivery. lb. 
 
 230. When excused. The vendor of a 
 patent right, having offered to make out a deed 
 of the patent, expressed himself ready to fulfil 
 the contract, and demanded the money, and the 
 vendee, having repudiated the contract and re- 
 fused to pay, — Held, that a formal tender of a 
 deed was unnecessary before action brought for 
 tlie purchase-money. Ct. App., 1872, Collins v. 
 Hall, 50 N. Y. (5 Sick.) 687. 
 
 HI. PAETtES TO ACTIONS. 
 1. Contract made by Agent, 
 
 231. Agent. Where one who, as proprietor 
 of a newspaper, had been accustomed to pur- 
 chase paper on credit, continues, after the for- 
 mation of a joint stock company for the publica- 
 tion of the same newspaper, to make purchases of 
 paper from the same party and have them charged 
 as before, claiming to be the largest stockholder 
 and virtually the association, the credit must be 
 deemed given to him alone, and an action 
 cannot be maintained thereon against the asso- 
 ciation. N. Y. Supr. Ct., 1871, Butler v. Evening 
 Mail Association, 34 N. Y. Supr.(2 J. & Sp.) 58. 
 
 232. — of one partner. Where a contract 
 was made by a person assuming to act for an 
 individual partner, and the proceeds thereof 
 were received by such partner, an action based 
 upon fraud in the contract to recover back the 
 money paid thereon, may be maintained against 
 such partner alone, although he may have 
 divided such proceeds with his co-partners. 
 Ct. App., 1872, Leslie v. Wyley, 47 N. Y. (2 
 Sick.), 648. 
 
 233. Consignor. One who contracts with 
 parties in New York to fill casks furnished by 
 them with cider, load them on the cars at Lock- 
 port, fifty casks in a car, take a receipt therefor, 
 and transmit that, with a draft for the price, to 
 the purchasers, can maintain an action in his 
 own name against the carrier for the loss of a 
 number of casks delivered to it while it was 
 
ACTIONS. 
 
 19 
 
 waiting for enough to fill a car, and no demand 
 before suit is necessary in such 'a case. Sup. 
 Ct., 1875, Gilbert v. N. Y. Cent. ^ Hud. Riv. 
 R. R. Co., 4 Hun, 378. 
 
 238. Undisclosed principal. Although a 
 creditor gives an apparent credit to one who is 
 in fact an agent for an undisclosed principal, 
 yet he is not to be presumed to elect either as 
 his debtor until the name and credit of both are 
 before him, and he then has a right of recourse 
 to the principal, and may enforce the claim 
 against him. N. Y. C. P., 1873, McGraw v. 
 Godfrey, 14 Abb. N. S. 397. 
 
 2. Real party in interest. 
 
 234. An assignee, under an absolute assign- 
 ment in writing, is the legal holder of the claim 
 and the real party in interest, within the mean- 
 ing of the Code, although the assignor may ex- 
 pect to receive some part of the proceeds when 
 collected. Com. App., 1871, Meeker \. Claghom, 
 44 N. Y. (6 Hand,) 349. 
 
 235. An action upon an administrator's bond, 
 which has been assigned by the Surrogate 
 for the purpose of being prosecuted, under the 
 act of 1837, may be brought either in the name 
 of the assignee, as the real "party in interest, 
 under section 111 of the Code, or in the name of 
 the people, as the nominal obligees, under sec- 
 tion 113 of the Code. Sup. Ct., 1873, Cridler v. 
 Curry, 44 How. 345. 
 
 236. An assignee of a judgment, whose as- 
 signment was intended as a mere power of 
 attorney to enable him to collect the judgment, 
 and who has sold real estate on execution and 
 obtained a sheriff's deed thereof, cannot main- 
 tain an action in his own name to redeem from 
 a foreclosure sale of the premises, although he 
 was not made a party to the foreclosure action, 
 be not being the real party in interest. N. Y. 
 Supr. Ct., 1872, McKee v. Murphy, 34 N. Y. Supr. 
 (2 J. & Sp.) 261. 
 
 237. An assignee of a claim for money 
 paid under a mistake of facts can sue thereon 
 in his own name. Brooklyn City Ct., 1872, 
 Barker v. Clark, 12 Abb. N. S. 106. 
 
 238. Where a debtor refuses to pay a de- 
 mand to an assignee thereof, on the ground that 
 it has been paid in his transactions with the 
 assignors, through whom such assignee claims 
 title, to which transactions such assignee is a 
 stranger, he cannot join such debtor and the 
 assignors in an action seeking an accounting, to 
 ascertain the rights and liabilities of the parties, 
 and a judgment against tlie one found liable ; 
 but his remedy is either against the original 
 debtor, or against the assignors for a breach of 
 warranty. N. Y. C. P., 1873, Camblos v. Butter- 
 field, 15 Abb. N. S. 197. 
 
 239. One who has purchased from a turn- 
 pike company, authorized by law to sell and 
 transfer the same, all its corporate rights and 
 franchises, can maintain an action in his own 
 name to recover penalties for running a toll-gate 
 on such road. Sup. Ct., 1875, Clow v. Van Loan, 
 4 Hun, 184. 
 
 240. One to whom a promissory note is 
 delivered, under an agreement by which he is 
 to collect at his own expense, and pay to his 
 assignor $600, upon its collection, is the real 
 party in interest, within the meaning of the 
 Code, and may maintain an action on the note 
 in his own name. Ct. App., 1872, Baton v. Aher, 
 47 N. Y. (2 Sick.) 345. 
 
 241. Where a husband loaning money took 
 a note in the name of himself and wife, but by 
 
 will bequeathed her a larger sum " in lieu of 
 dower and all other claims against his estate," 
 under an agreement between them which in- 
 cluded such note among the claims, and she, 
 after his death, receipted the note as part of the 
 assets of the estate, — Held, that she. could not 
 maintain an action thereon against the maker, a 
 co-executor with her' of her husband's will, she 
 not being the real party in interest. Ct. App., 
 1871, Sanfordv. Sanford, 45 N. Y. (6 Hand,) 723. 
 
 242. A cause of action against the obligors 
 in an undertaking for arrest, to recover special 
 damages sustained by reason of the arrest, is 
 assignable, and the assignee may maintain an 
 action thereon in his own name. N. Y. Supr. 
 Ct., 1874, Moses v. Waterbury Button Co., 87 N. 
 Y. Supr. (5 J. & Sp.) 393. 
 
 243. An assignee of an undertaking given 
 by defendants on the adjournment of a cause, 
 conditioned to pay the j udgment if execution is 
 returned unsatisfied, can maintain an action 
 thereon in his own name, after the execution has 
 been so returned. Sup. Ct. Sp. T., 1875, Snod- 
 grass v. Krenkle, 49 How. 122. 
 
 244. Equitable assignee. If one upon 
 whom an order is drawn in favor of a third 
 party, for the payment of a sum of money then 
 in his hands belonging to the drawer, or to be- 
 come due the drawer on a then existing contract, 
 with notice of such order, refuses to pay it upon 
 presentment to him at a time when he has that 
 amount in his hands due and payable to such 
 drawer, the payee of the order can maintain an 
 action against him tlierefor. Sup. Ct., 1873, 
 Lewis V. Berry, 64 Barb. 593. 
 
 245. This is so, especially, where the order was 
 drawji in pursuance of a previous agreement 
 between the drawer and drawee that it should 
 be paid. lb. 
 
 246. Consignor. One who has collected 
 money for another, and, deducting his charges, 
 sent it to the latter by express, has no further 
 interest therein, and cannot maintain an action 
 against the carrier for its non-delivery. Ct. 
 App. 1872, Thompson v. Fargo, 44 How. 176 ; S. 
 C. 49 N. Y. (4 Sick.) 188. 
 
 247. Consignee. Where a large quantity 
 of cider, purchased under a contract which was 
 void by the statute of frauds, was delivered at 
 a railroad depot marked for the purchaser at 
 another station on the road, but was destroyed 
 by fire with the depot before shipment, — Held, 
 that the shipper could maintain an action for 
 the loss, but the consignee could not, as he ac- 
 quired no title ; nor would a subsequent pay- 
 ment for that which was destroyed relate back so 
 as to give him title at the time of the loss, but it 
 would operate as an assignment of the cause of 
 action. Ct. App., 1875, O'Neil v. N. Y. Cent.i- 
 Hud. Riv. R. R. Co., 60 N. Y. (15 Sick.) 138. 
 
 248. Where a cartman, employed to transport 
 goods from the freight house of a railroad com- 
 pany, over whose road they had been shipped, 
 to the store of the consignee, without authority 
 or request, paid the freight thereon out of his 
 own money, including back charges, the amount 
 of which had been fraudulently overcharged by 
 the clerk of the company, and was reimbursed 
 by the consignee, without any knowledge that 
 the charges had been so advanced, — Held, tliat 
 the consignee could not maintain an action 
 against the company to recover back the amount 
 of such overcharges, on the ground tliat they 
 were paid by mistake, the money paid not being 
 his. Sup. Ct., 1872, Wai-lhington v. N. Y. Central 
 R. R. Co., 6 Lans. 257. 
 
 249. Contracting party. One who contracts 
 
20 
 
 ACTIONS. 
 
 with another for work and materials to be fur- 
 nished by the latter for the repair of a house, 
 can maintain an action for a breach of the con- 
 tract, and recover the direct pecuniary loss sus- 
 tained by him from the breach, although the 
 house is not his own. N. Y. Supr. Ct., 1872, 
 Quackenbos v. Edgar, 34 N. Y. Supr., (2 J. & Sp.) 
 333. 
 
 250. Donee. A donee of worthless securi- 
 ties, from one who was induced to accept them 
 by fraudulent representations, cannot maintain 
 an action for the fraud. Ct. App., 1873, Simar 
 V. Canaday, 63 N. Y. (8 Sick.) 298. 
 
 251. Insured. Where a policy is issued to 
 the owner of premises, loss, if any, payable to a 
 mortgagee, the latter alone can sue, and has the 
 right to recoTer the whole loss sustained by the 
 owner's insurable interest, holding the surplus, 
 if any, above his claim as trustee for the owner ; 
 and the owner need not be joined as a party, 
 unless he claims in hostility to the incumbran- 
 cer. Ct. App., 1875, Cone \. Niagara F. Ins. Co., 
 60 N. Y. (15 Sick.) 619. 
 
 252. Judgment debtor. A person who, in 
 behalf of one against whom a judgment has been 
 recovered before a justice of the peace, leaves a 
 notice of appeal and money, supposed to be, but 
 not, in fact, sufficient to pay the costs and the 
 fee for return, with the justice's wife, cannot 
 maintain an action against the justice to recover 
 back such money, if the justice applies it to the 
 payment of the judgment ; because, when paid, 
 it became the property of the party seeking to 
 appeal. Sup. Ct., 1874, Rightmire v. Kimball, 2 
 Hun, 598. 
 
 253. No longer interested. An action to 
 have a conveyance made by a judgment debtor 
 to his wife adjudged fraudulent and void as 
 against creditors, was properly dismissed as to 
 one defendant who had previously parted with 
 all her interest in the premises. Supr. Ct., 1873, 
 Taft V. Wright, 47 How. 1. 
 
 254. Obligee. Where, on dissolution of a 
 partnership, one partner executes a bond with 
 surety to the other, conditioned to pay all of 
 the firm debts, the liability of the obligors is to 
 the obligee alone, and a creditor of the firm can- 
 not maintain an action thereon in his own name 
 without assignment. Ct. App., 1878, Merrill v. 
 Green, 65 N. Y. (10 Sick.) 270. 
 
 255. Principal partner. Where two parties 
 do work, under an agreement between them- 
 selves that one of them shall receive half the 
 net profits as compensation for his services, but 
 have no other interest or right in the business, 
 they are nominal partners merely, and an action 
 for such work may be brought in the name of 
 the principal partner alone, he being the real 
 party in interest. N. Y. Sup. Ct., 1873, Beudel 
 v. Hettrick, 45 How. 198 ; S. C, 35 N. Y. Supr., 
 (3 J. & Sp.) 405. 
 
 256. Substitute. One who has furnished a 
 substitute for another for military service, under 
 an agreement that he shall have a certain sum 
 and all the county and town bounties that such 
 other party or the substitute would be entitled 
 to, cannot maintain an action against the latter 
 party to recover the money received by him 
 from the town for bounty voted subsequent to 
 the agreement. Sup. Ct., 1874, Decker v. Salts- 
 man, 1 Hun. 421. Afi'd by Ct. App. 
 
 No one but the substitute or bis assignee can 
 maintain such action. lb. - 
 
 257. Survivor. The survivor of a firm is the 
 real party in Interest to a demand owned by or 
 due the firm, and it is not material upon the 
 question of his capacity to sue, that the bene- 
 
 ficial interest in the claim was, by arrangement 
 between the partners, in the deceased, or that 
 his representatives would, upon an accounting, 
 be entitled to the proceeds. Ct. App., 1871, 
 Daby V. Ericsson, 45 N. Y. (6 Hand,) 786. 
 
 3. Trustee of express trust. 
 
 258. In general. It is the duty of trustees, 
 in whom is vested the title to a trust fund, to 
 maintain and defend it against wrongful attack 
 or injury tending to impair its safety or amount ; 
 and in the absence of proof of a refusal or reluc- 
 tance on their part to perform their duty in that 
 respect, they alone are proper parties plaintiff 
 in an action to protect such fund. Com. App., 
 1872, Western Railroad Co. v. Nolan, 48 N. Y. 
 (3 Sick.) 613. 
 
 269. Administrator. An action on a policy 
 of life insurance, payable by its terms to the 
 assured, his executors and administrators, forthe 
 benefit of his wife and mother, may properly be 
 brought in the name of the administrator of the 
 assured, he being a trustee of an express trust, 
 within the meaning of section 113 of the Code. 
 Ct. App., 1872, Greenfield v. Mass. Mut. Life Ins. 
 Co., 47 N. Y. (2 Sick.) 430. 
 
 260. An administrator with the will annexed 
 does not become trustee of a trust conferred by 
 the will upon an executor who refused to act or 
 to assume the trust, and cannot bring an action 
 for the recovery of the trust property, nor can 
 any one sue therefor until appointed a trustee 
 by the Supreme Court. Sup. Ct., 1872, Dunning 
 V. Ocean Nat. Barik of New York, 6 Lans, 
 296. 
 
 261. The administrator of a deceased indorser 
 of a note may properly be joined as a party 
 defendant with the maker, in an action on the 
 note. Ct. App., 1872, Eaton v. Alger, 47 N. Y. 
 (2 Sick.) 345. 
 
 262. The administrator of a deceased testa- 
 mentary trustee is a proper party to an action 
 by a contractor who has erected a building on 
 the trust property under a contract with the 
 trustee made with the approval of the guardians 
 of an infant who was interested therein. Sup. 
 Ct. Sp. T., 1873, Bloodgood v. Mickle, 15 Abb. 
 N. S. 103. 
 
 263. An administrator is personally liable for 
 the rent of leasehold property of which his 
 intestate died seized to the extent of the rents 
 and profits he has received from the premises ; 
 and in an action therefor, the fact that the rents 
 and profits are not sufficient to pay the rent is 
 strictly matter of defense. The law prima facie 
 supposing them sufficient. Com. App., 1872, 
 Miller v. Knox, 48 N. Y. (3 Sick.) 232. 
 
 264. In an action for the construction of two 
 wills and an accounting, where one person is the 
 legal representative'"of both estates, he must be 
 made a party defendant or representative of 
 each estate, and it is not sufficient to make him 
 such as representative of one of such estates 
 only. Sup. Ct., 1872, Fisher v. Hubbell, 7 Lans. 
 481 i S. C, 65 Barb. 74. 
 
 265. An agent of a mowing machine compa^ 
 ny, who sells and delivers such machines in 
 behalf of the company, is a trustee of an express 
 trust within the meaning of the Code, and may 
 sue on a contract for such sale in his own name, 
 whether the fact that he is acting as agent 
 appears in the contract or not. Chen. Co. Ct., 
 Davis T. Remolds, 48 How. 210 ; AfE'd S. C, 5 
 Hun, 651. 
 
 266. Cestuis que trust can maintain an action 
 in equity against the trustees for a breach of 
 
ACTIONS. 
 
 21 
 
 their trust and consequent loss of the funds. 
 Sup. Ct., 1871, Soriore v. Scott, 6 Lans. 271. 
 
 267. In such action the representatives of a 
 deceased trustee, in whose life-time the breach 
 occurred, may be joined as defendants with the 
 surviving trustee. lb. 
 
 268. If an accounting and security for the 
 money lost is sought in such action; all the 
 cestuis que trust are necessary parties, and if a 
 recovery of the money lost is sought, they are 
 proper parties. lb. 
 
 269. One who is entitled, under the provisions 
 of a will, to an allowance out of the income of 
 the estate for his education, wliere there is any 
 doubt about the sufficiency of the assets to pay 
 all the debts and legacies, can maintain an action 
 against the trustees to compel them to account, 
 and to invest a sufficient sum to yield as interest 
 the sum deemed sufficient by the trustees to 
 educate him. Sup. Ct., 1872, Petrie v. Petrie, 
 7 Lans. 90. 
 
 270. He cannot maintain an action to recover 
 assets ; but if the trustee, or the survivor of 
 several trustees, is insolvent, he can maintain 
 an action to restrain him from applying the 
 funds of the estate to the payment of fictitious 
 or outlawed debts or committing any other 
 breach of trust. lb. 
 
 271. The committee of a lunatic may pro- 
 perly be considered a trustee of an express trust, 
 and may maintain an action in his own name, 
 as such, to rescind the sale of a farm made to 
 his ward, and to cancel the satisfaction of a 
 mortgage given by him. Sup. Ct., 1874, Fields 
 V. Fowler, 2 Hun, 400. 
 
 272. A factor who contracts in his own name 
 on behalf of his principal, is a trustee of an 
 express trust, and may sue in his own name in 
 respect to goods consigned to him. N. Y. Sup. 
 Ct., 1874, Ladd v. Arkell, 37 N. Y. Supr. (5 J. & 
 Sp.) 35. 
 
 273. Guardians of the property of an infant, 
 are proper parties to an action, the complaint in 
 which states any cause of action affecting the 
 property of such infant. Sup. Ct., Sp. T., 1873, 
 Bloodgood v. MicMe, 15 Abb. N. S. 103. 
 
 274. So held in an action by a contractor to 
 recover compensation for a building on trust 
 property under a contract with a testamentary 
 trustee, made with the assent of the guardians 
 of an infant who was interested in such property. 
 lb. 
 
 275. Insured. One to whom a policy of ma- 
 rine insurance is made " for account of whom it 
 may concern," is a trustee of an express trust, 
 and an action to recover the insurance money 
 may properly be brought in his name, although 
 he may have assigned his beneficial interest. 
 N. Y. C. P., Hughes v. Mercantile Mut. Ins. Co., 
 44 How. 851. 
 
 276. A commission merchant, who effects an 
 insurance on goods "sold but not removed," 
 is a trustee of an express trust, within the mean- 
 ing of the statute, for his vendee, though not 
 specially designated, and may maintain an action 
 on the policy in his own name for a loss of such 
 goods. Ct. App., 1871, Waring v. Indemnity 
 Fire Ins. Co., 45 N. Y. (6 Hand,) 606. 
 
 277. Joint o-wner. One of several jointly 
 interested in a claim, who, with the consent of 
 the others, employs a broker in his own name 
 to collect it, stands in the relation of a trustee 
 to the others, and accountable as such to the 
 extent of their interest ; and he may maintain an 
 action against the broker in his own name to re- 
 cover the moneys collected. Com. App., 1872, 
 Noe T. Chnstte, 51 N. Y. (6 Sick.) 270. 
 
 278. Lessee and third party. A contract 
 between a lessee of premises and a third party, 
 that the latter shall fit up the premises for sub- 
 letting, collect the rents, pay his own advances 
 and the rent due the landlord, and divide the 
 net proceeds with the former, creates a trust in 
 favor of the landlord, which he may enforce by 
 action against such lessee and third party jointly. 
 N. Y. C. P., 1870, Borell v. Newell, 3 Daly, 233. 
 
 279. Principal and agent cannot be sued 
 jointly upon a contract made by the agent, in 
 his own name, for the benefit of the principal, 
 but either may be sued thereon separately. lb. 
 
 4. Public officers. 
 
 . 280. Action on attached claims. An ac- 
 tion to enforce choses in action upon which an 
 attachment has been levied, must be brought in 
 the name of the sheriff holding the attachment, 
 or of the attachment debtor. The plaintiff in 
 the attachment may, under section 238 of the 
 Code, prosecute such action, but he cannot do it 
 in his own name. N. Y. Supr. Ct., Sp. T., 1873, 
 VanVblkenburgh v. Bates, 14 Abb. N. S. 314, 
 note. S. P. iMpton v. Smith, 48 How. 261 ; 3 
 Hun, 1. 
 
 281. It is doubtful whether a sheriff who 
 has obtained possession of a draft belonging to the 
 debtor by means of a false pretense, can main- 
 tain an action to compel the person to whose or- 
 der it is payable, to indorse it. The plaintiff 
 cannot maintain such an action in his own 
 name. lb. 
 
 282. Section 238 of the Code merely enables 
 the plaintiff in the attachment to control the 
 suit brouglit by the sheriff, or to bring one in 
 the sheriff's name, on executing the bond of in- 
 demnity thereby required. lb. 
 
 283. A receiver appointed in supplementary 
 proceedings is not the proper party to bring suit 
 for the collection of debts due the judgment debt- 
 or, which have been duly attached in the suit in 
 which he was appointed, but the same should be 
 brought either by the sheriff who served the at- 
 tachment or by the attaching creditors. Sup. 
 Ct. Sp. T., 1869, Andrews v. Glenville Woollen Co., 
 11 Abb. N. S. 78. 
 
 284. Attorney General. When a pubhc 
 right or interest is invaded, which requires vin- 
 dication by judicial proceedings, and especially 
 in cases in which, either no other remedy exists 
 at common law, or by collusion, or fraudulent 
 design, the authorities, whose duty it may be, re- 
 fuse to prosecute, the Attorney-General, repre- 
 senting the State in its sovereign capacity, may 
 sue, and that whether the injury to the public 
 interests affects the whole people, or some par- 
 ticular or limited organization of them. Sup. 
 Ct., 1872, People v. Tweed, 18 Abb. N. S. 25. 
 
 285. This rule cannot be confined merely to 
 cases of public nuisance ; but it is applicable to 
 cases of corrupt perversion of public moneys or 
 public credit. lb. 
 
 286. Whenever an individual or a corpora- 
 tion have been authorized by a statute to ad- 
 minister public funds for public purposes, such 
 person or body is liable to an action by the At- 
 torney General for any misappropriation or mis- 
 conduct in the performance of the trust. lb. 
 
 287. Where certain officers of a municipal 
 corporation were constituted by statute commis- 
 sioners, to allow claims against a county, for the 
 payment of which bonds were to be issued and 
 sold, and a tax to be laid by the county super- 
 visors to pay them ; and such commissioners 
 directed the payment of fictitious and fraudu- 
 
22 
 
 ACTIONS. 
 
 lent claims to a large amount, and the money 
 necessary to pay them was raised by the issue 
 and sale of such bonds, and was deposited with 
 the treasurer of tlie corporation and paid out by 
 him in satisfaction of the claims, and the claim- 
 ants paid a share thereof to one of tlie commis- 
 sioners ; — Held, that the State had both an in- 
 terest and a duty in the matter ; and there being 
 no other remedy provided by law, an action 
 could be maintained by the Attorney General 
 in the name of the people, to recover back the 
 money so fraudulently raised and converted, 
 lb. Such an action may be. maintained by the 
 board of supervisors of the county. Sup. Ct, 
 1872, Supervisors of New York v. Tweed, 13 Abb. 
 N. S. 162. 
 
 288. The Attorney General of this State is 
 placed by law in the same relation to the gov- 
 ernment as is the Attorney General in England, 
 and the latter can maintain such an action. The 
 power of the former is neither conferred nor 
 taken away by the Code. People v. Tweed, 13 
 Abb. N. S. 26. 
 
 289. Such relief may be sought in an equita- 
 ble action, although the sum misappropriated is 
 fi.xed and ascertained, and therefore no account- 
 ing is necessary, and only a judgment for a spe- 
 cified sum is asked for. lb. 
 
 290. "Where it does not appear that the title 
 to the moneys misappropriated was in the muni- 
 cipality or the county, or that those bodies or 
 their officers participated in the fraud, it is not 
 necessary to make them parties to such suit, 
 either as plaintiSs or as defendants. lb. 
 
 291. The mere fact that the moneys were de- 
 posited with the municipal treasurer, does not 
 give the municipality any title to or interest in 
 them. lb. 
 
 292. The question as to what disposition shall 
 be made of the moneys if recovered, does not 
 affect the right to maintain tlie action. lb. 
 
 293. The people cannot intervene except upon 
 the assertion of a distinct right on the part of 
 the public in respect to the subject matter liti- 
 gated. An action cannot therefore be main- 
 tained in tlie name of the people for tlie redress 
 of mere private wrongs. Ct. App., 1874, People 
 ■r. Albany §■ Susq. R. R. Co., 67 N. Y. (12 Sick.) 
 161; Afi'g S. C, 6 Lans. 25. 
 
 294. Tlie Attorney General cannot maintain 
 an action, in the name of the people, to restrain 
 different claimants to the directorship or man- 
 agement of a railroad company from prosecut- 
 ing suits between themselves in relation thereto, 
 or from holding any election for directors ; and 
 to restrain receivers appointed in such actions 
 from taking possession of the road or its prop- 
 erty, or exercising any power as such officers ; 
 even though a conflict of authority may have 
 arisen between public officers in the attempted 
 execution of conflicting process from different 
 judicial officers in such suits, in such manner as 
 to endanger the public peace. Such facts do 
 not constitute a public nuisance. lb. 
 
 295. Commissioners of highways. Where 
 two out of three commissioners of liighways pay 
 the cost of a bridge for which all are jointly 
 liable, they cannot join in a suit against the 
 third to recover his share of the amount, but 
 each "must sue for the amount paid out of his 
 several fund. Sup. Ct., 1871, Corei/ v. Rice', i 
 Lans. 141. 
 
 296. Supervisor. Under the act of 1867 
 (cli. 747), to extend the time for the completion 
 of a certain railroad named, an action against 
 the railroad commissioners of a town to compel 
 them to account for and pay over moneys 
 
 received by them on the sale of the stock of such 
 road, may properly be brought by the supervisor 
 of such town in his own name ; and it is. not 
 necessary to the continuance of such action,, 
 that the successor of the original plaintiff 
 be substituted. Ct. App., 1874, Griggs y. Griggs, 
 56N. Y. (11 Sick.) 604. 
 
 ,297. Town. Wliere a turnpike company re- 
 linquishes a portion of its road, including a 
 bridge, to the inhabitants of the towns through 
 which it runs, for a public highway, and the 
 legislature, by an act reciting that fact, provides 
 for the care and improvement thereof by the 
 commissioners of highways of the several towns, 
 the town in which such bridge is acquires the 
 right to maintain it, and that right is an 
 easement, and is the property of the town, 
 and it can maintain an action in its town 
 name for an injury to such bridge. Sup. Ct., 
 1876, Town of Pierrepont v. Lovelass, 4 Hun, 696. 
 
 298. Trustees of a village have no right, 
 as such, to maintain an action to restrain the 
 disposal of county buildings and removal of the 
 county seat to another place. Sup. Ct., 1874, 
 Trustees of the village of Havana v. Board of 
 Sups, of Schuyler Co., 2 Hun, 600. 
 
 6. Promise for benefit of third party. 
 
 299. Third Party. An agreement, made 
 upon valid consideration, by one party with 
 another to pay money to a third, whether a 
 simple contract or a writing under seal, may be 
 enforced by the third party in his own name. 
 Ct. App., 1871, Coster v. Mayor of Albany, 43 N. 
 Y. (4 Hand,) 399. S. P. Salt v. Robbins, 4 Lans. 
 463 ; 61 Barb. 33. 
 
 300. An action will lie in favor of a creditor 
 of a firm against a party who, in consideration of 
 receiving all the assets of the partnership, agreed 
 to pay certain of its debts including the one sued 
 on. Sup. Ct., 1875, Barlow v. Myers, 3 Hun, 720. 
 
 301. "Wliere one holding a policy of insurance 
 on the life of another, in terms payable to him- 
 self, but really for the benefit of the insured or 
 whomsoever he may designate, agrees, at the 
 request of the latter, to pay out of its proceeds a 
 debt due a third person, or silently acquiesces in 
 such request by continuing to hold the policy 
 without objection, and afterward receives the 
 amount of it, such third person may maintain 
 an action against him to recover the amount of 
 the debt. Ct. App., 1871, Hutchings v. Miner, 46 
 N. Y. (1 Sick.) 466. 
 
 6. On covenants. 
 
 302. On covenants in lease. A minor 
 whose real estate has been leased by his guardian, 
 has no right of action for injuries to the prem- 
 ises which are covered by the lease, except 
 upon the lease itself. He cannot maintain an 
 action of waste therefor. Sup. Ct., 1862, Thacker 
 V. Henderson, 63 Barb. 271. 
 
 303. An assignee of such lease, if he is also 
 owner of the reversion or of a reversionary 
 interest, can recover damages for breaches of all 
 covenants therein which may be assigned ; 
 including such as those to work in a good farm- 
 erlike manner, keep in good condition, seed down 
 part, and the like. lb. 
 
 304. Plaintiffs having separate interests. 
 "Where several parcels of land, some leasehold 
 and others freehold, are included in the same 
 lease, which contains a covenant on the part of 
 the lessees to pay any additional taxes that may 
 be assessed on the premises for additions or 
 
ACTIONS. 
 
 23 
 
 improvements on them, and the lessor dies after 
 devising the freehold lots to his son, the covenant 
 of the lessees as to those lots goes to the devisee, 
 and as to the otlier lots to the exeoutors, and 
 eacli can enforce the covenant or sue for a breach 
 of it to the extenf of his interest; but it is at 
 least questionable whether they can maintain a 
 joint action. N. T. Supr. Ct., 1874, Dudley v. 
 Grissler, 37 N. Y. Supr. (5 J. & Sp.) 412. 
 
 7. Partners and tenants in common, 
 
 805. BetTween partners. An action at law 
 may be maintained by one partner against 
 another, where the cause of action is distinct 
 from the partnersliip accounts and does not 
 involve their consideration. Ct. App., 1871, 
 Howard v. France, 43 N. Y. (4 Hand,) 593. 
 
 306. Where a policy of insurance upon a mill 
 owned by two persons as tenants in common, and 
 used by tliem as partners in the manufacture of 
 flour, was assigned to a third party as collateral 
 to a mortgage security given for liabilities 
 incurred by the latter for the partnership, he at 
 the same time undertaking to share in one-third 
 of the losses and profits of their business ; and 
 afterward, upon the failure of their firm, betook 
 from the partners a lease of the mill, agreeing to 
 operate it and retain one-third of the profits, 
 applying the other tw o-thirds to the payment of 
 the liabilities incurred by him as above, during 
 which operation by him the mill was burned, 
 and the proceeds of the policy, sent by him to 
 one of the partners for collection, were paid 
 to such partner ; — Held, that an action might 
 be maintained by him for such proceeds, to the 
 
 • amount of the outstanding liabilities as security 
 for which the policy was assigned, as long as 
 any part remained unpaid, without reference to 
 the state of partnership accounts. lb. 
 
 307. By individual partners. Although 
 one who, with full knowledge of the facts, takes 
 the individual note of a partner endorsed by him 
 in the firm name to pay his private debt, and 
 negotiates it to a Aona^de purchaser with intent 
 to charge the firm, is guilty of a fraud for which 
 he is liable ; yet, the cause of action belongs to 
 the individual partners injured, and an action 
 therefor cannot be maintained in the name of 
 the firm, or of an assignee of its assets. Lott, Ch. 
 C. and Ghat C, dissent. Com. App.,1872, Calkins 
 v. Smith, 48 N. Y. (3 Sick.) 614. 
 
 308. Surviving partner. After the death 
 of one member of a co-partnership firm, all ac- 
 tions brought in respect to any contract pre- 
 viously entered into by or on behalf of such firm 
 must be brought by or against the surviving 
 partners. The representatives of the deceased 
 partner cannot sue or be sued in respect thereto. 
 N.Y. Supr. Ct, Sp. T., 1873, Carrere v. Spofford, 
 46 How. 294 j S.C.,.15 Abb. N.S. 47. 
 
 309. Upon the death of one of two co-part- 
 ners, the joint debt may be treated as if origin- 
 ally his separate debt, and he alone is liable to 
 be sued thereon, and an action commenced 
 against him may after his death be continued 
 against his legal representatives. lb. 
 
 810. One who formed a partnership with an- 
 other for the performance of public work, for 
 which the latter had entered into a written con- 
 tract with city authorities, under seal, cannot, 
 after the death of such contractor, maintain an 
 action at law against the city, as surviving part- 
 ner, to recover for work done under such con- 
 tract. Sup. Ct., 1872, Duffy. Gardner, 7 Lans. 165. 
 
 811. After change of firm. A clerk em- 
 ployed by a firm under an agreement in writing 
 
 to work for them, their successors and assigns, 
 under their direction and control, for a period of 
 five years, at a specified salary, who continues 
 in the service of a new firm, formed upon disso- 
 lution of the old one within the five years, with- 
 out any new hiring, may properly bring an ac- 
 tion on such agreement, for wages earned after 
 such dissolution, against the members of tlie old 
 firm, witliout joining those of the new who are 
 not parties to the agreement. N.Y. C.P., 1871, 
 Smith V. Douglass, 4 Daly, 191. 
 
 812. Against representatives of deceas- 
 ed partner. A creditor of a partnership can 
 maintain an action in equity against the repre- 
 sentatives of a deceased partner, after he )ias ex- 
 hausted his remedy at law against the survivor, 
 by the recovery of a judgment and the return 
 of an execution thereon unsatisfied, even though 
 it may be shown that such survivor had prop- 
 erty out of which it might have been satisfied. 
 Ct. App., 1873, Pope v. Cole, 55 N. Y., (10 Sick.) 
 124 ; Aff'g S. C, 64 Barb. 406. 
 
 813. He may enforce payment out of the 
 estate of the deceased partner, without first 
 suing the survivor, when he can prove the latter 
 to be insolvent. lb. 
 
 314. For fraud of partner. Where one 
 member of a firm by fraudulent representations 
 induces a third party to purchase property from 
 the firm, such member is alone liable for the 
 fraud to the person injured. N. Y. Supr. Ct., 
 1875, Goldberg v. Dougherty, 39 N. Y. Supr. (7 J. 
 & Sp.) 189. 
 
 315. For negligence of servcint of a 
 firm. An action forinjuries sustained through 
 the negligence of an employe of a co-partner- 
 ship may be brouglit against any one, all, or 
 such number of the partners as the plaintiff 
 chooses. Ct. App., 1874, Roberts v. Johnson, 58 
 N. Y. (18 Sick.) 613 ; AfE'g S.C, 37 N. Y. Supr 
 (5 J. & Sp.) 157. 
 
 316. Boat OTwners. Where the owners of a 
 steamboat engaged in towing, charter it to 
 other parties for the season, for so much a round 
 trip, the owners to pay the running expenses, 
 and hire and pay the men engaged on the boat, 
 and the charterers to receive the balance of the 
 earnings after paying expenses, the owners 
 alone are liable for the negligence of those 
 employed on such boat, causing the loss of a 
 boat towed by it. The action, in such a case, 
 wiU be for breach of the duty to tow safely, 
 not for a breach of contract. Sup. Ct., 1873, 
 Bissell V. Torrey, 65 Barb. 188 ; AfE'd, 60 N. Y. 
 (15 Sick.) 635. 
 
 317. The several owners of a vessel are 
 tenants in common and must join or be joined 
 in an action relating to their common property ; 
 but, when one of them dies, his personal repre- 
 sentative cannot be brought in as a party de- 
 fendant with the survivors. N. Y. C:P., 1870, 
 Wright v. Marshall, 3 Daly, 381. 
 
 318. Heirs to reeil property. Several per- 
 sons claiming to own an estate in common, as 
 heirs-at-law of a common ancestor, may prop- 
 erly be joined as defendants in an action under 
 the Code to determine the title to the property. 
 Com. App., 1871, Fisher v. Hepburn, 48 N. Y. (3 
 Sick.) 41. 
 
 819. Parties jointly interested in the 
 purchase of lands, by whdm the lands were 
 afterward sold to a joint stock company of 
 which all are members, have no such.mutuality 
 of interest as would prevent a portion of them 
 from suing the remainder for fraud and deceit 
 practiced in the purchase. N. Y. C. P. 1869, Dart 
 V. Woffier, 3 Daly, 136. 
 
24 
 
 ACTIONS. 
 
 320. Shareholders. All parties who are en- 
 titled to sliare in one debt may, properly be 
 joined as plaintiffs in an action brought for its 
 recovery. Sup. Ct., 1876, Brett t. First Univer- 
 salist So. of Brooklyn, 5 Hun, 149. 
 
 8. Shareholders in Corporations and Joint Stock 
 Associations, 
 
 821. Between members of unincorpor- 
 ated society. The members of a roluntary 
 unincorporated association have no interest in 
 the property or funds of the society, which can 
 be separated and taken out for their sole use, 
 until the joint affairs are settled, the association 
 dissolved, the mutual rights of members ad- 
 justed and the ultimate share of each deter- 
 mined. No associate, therefore, can maintain 
 in his own name, or so transfer his interest to 
 another as that he can, in his own name, main- 
 tain an action at law against a fellow member 
 upon a contract made with the society. Ct. 
 App., 1871, McMahon v. Bauhr, 47 N. Y. (2 
 Sick.) 67 ; Aff'g S.C, 3 Daly, 116. 
 
 322. By corporators. It is no objection to 
 an action against a corporation, that the plain- 
 tiffs are themselves corporators or members of 
 the company. Sup. Ct., 1872, Westcott v. Fargo, 
 6 Lans. 319 ; S.C, 63 Barb. 349. 
 
 323. Against members of joint stock 
 associations. The provision of chapter 153, 
 Laws of 1853, amendatory of chapter 258, Laws 
 of 1849, tliat suits against joint stock companies 
 or associations consisting of seven or more share- 
 holders or associates shall, in the first instance, 
 be prosecuted against them in the name of 
 their president or treasurer, does not affect the 
 right under chapter 455, Laws of 1851, to bring 
 actions on claims against the associations therein 
 mentioned, in the first instance, against the per- 
 sons constituting such associations. N. Y. C. P., 
 
 1872, Waller v. Thomas, 42 How. 337 ; S. C, 4 
 Daly, 651. 
 
 324. Wh^e a voluntary association enters 
 upon and occupies premises previously leased by 
 three of its members for its use, and from time to 
 time pays rent thereon, its members mayproperly 
 be deemed assignees of the lease, and an action 
 can be maintained against them for the balance 
 of the rent. lb. 
 
 325. Before an action can be maintained 
 against the members of a joint stock associa- 
 tion, for a debt of the association, a suit must 
 be brought against its president ; and, if that 
 fails to secure satisfaction of the debt, then the 
 shareholders can be sued and payment enforced 
 out of their individual property. Sup. Ct., 
 
 1873, Allen v. Clark, 65 Barb. 663. 
 
 326. Against stockholders. Stockholders 
 of a manufacturing company, whose charter has 
 expired, agreeing among themselves to continue 
 the business by one of their number as agent, 
 each contributing to the expenses in proportion 
 to his stock, are liable as partners to third parties 
 dealing with such agent ; and a joint action 
 will lie against them on commercial paper, exe- 
 cuted by him for their benefit, though in the 
 name of the old corporation. Ct. App., 1871, 
 National Union Bank of Watertown v. Landon, 
 45 N. Y. (6 Hand,) 410. 
 
 327. The fact that the party taking such 
 paper, supposed at the time it was the obligation 
 of the corporation, and was ignorant of its dis- 
 solution and the existence of the partnership, 
 will not affect the question of liability. lb. 
 
 328. The right of judgment creditors of a 
 manufacturing corporation to bring a, suit 
 
 against stockholders of such corporation, under 
 sections 10 and 24, chapter 40, Laws 1848, 
 is a several and distinct right in each such 
 creditor, and each may maintain an action alone 
 against one or more stockholders, to enforce their 
 individual liability. Ct. App., 1872, Weeks v. 
 Zo!;e,50N.Y. (5Sick.)568. 
 
 329. Against trustees. Trustees of a cor- 
 poration who dispose of its property to the in- 
 jury of its creditors, are jointly and severally 
 liable to such creditors ; and an action to en- 
 force such liability may be brought against all 
 or any of the trustees, as the plaintiff may see 
 fit, and he may join the personal representatives 
 of a deceased trustee, with the surviving co- 
 trustees made defendants therein. N. Y. Supr. 
 Ct., 1875, Graham v. Hoy, 38 N. Y. Supr. (6 J. 
 & Sp.) 606. 
 
 Q., Husband and Wife. 
 
 330. By Husband. A husband can main- 
 tain an action in his right as such against a 'per- 
 son who has injured his wife, causing her death, 
 to recover the damages sustained by him in 
 being deprived of her society and assistance for 
 the period between the injury and her death, if 
 her death was not immediate. Sup. Ct., 1873, 
 Philippi V. Wolff, 14 Abb. N. S. 196. 
 
 331. Where such injury was caused by pro- 
 ciu-ing an abortion upon the wife, her consent 
 thereto would not deprive the husband of his 
 right of action for such damages. lb. 
 
 332. — against ■wife. Under the existing stat- 
 utes of this State a husband cannot maintain an 
 action at law against his wife to recover pay for 
 services rendered to her by him personally, 
 under a contract between them. Millek, P. J., 
 dissents. Sup. Ct., 1872, Perkins v. Perkins, 7 
 Lans. 19 ; S. C, 62 Barb. 531. 
 
 333. Husband and -wife must join as 
 plaintiffs in an action for use and occupation, 
 and for waste committed on land belonging to 
 them jointly. Supr. Ct., 1874, Freeman v. Bar- 
 ber, 1 Hun, 433. 
 
 334. A husband and wife may join in an 
 action for a fraud whereby they were induced 
 to convey lands belonging to the former alone ; 
 they having a common interest in the subject 
 of the suit, though the interest which each sus- 
 tained is separate and distinct. Ct. App., 1873, 
 Simar v. Canaday, 53 N. Y. (8 Sick.) 298. 
 
 336. A wife can sue her husband on a note 
 given by him to her before marriage, in consid- 
 eration of her promise to marry, and it is im- 
 material whether the form of the action is at 
 law or in equity. Com. App., 1873, Wright v. 
 Wright, 54 N. Y. (9 Sick.) 437 ; Aff'g S. 'C, 69 
 Barb. 606. 
 
 336. It seems, that the present policy of 
 this State in respect to the relations of husband 
 and wife, would permit a wife to sue her hus- 
 band to enforce any right affecting her separate 
 proiferty, in any form of action, the same as if 
 he was a stranger. lb. 
 
 337. A married woman, who has performed 
 labor or service under contract made with her 
 can maintain a suit to recover pay therefor, 
 even though she carries on no business on her 
 own account beyond that out of which the claim 
 arises. Sup. Ct., 1870, Adams v. Curtis, 4 Lans. 
 164. 
 
 338 Thus, a married woman who, at the re- 
 quest of her.husband, has performed services for 
 the firm of which he is member, can maintain an 
 action against the firm, including her husband, 
 for the value of the services. Even if the bus 
 
ACTIONS. 
 
 25 
 
 band was not liable, the other members of the 
 firm would be, and on the husband's default 
 judgment might be rendered against them. lb. 
 
 339. If a husband abandons his wife and 
 family, ceases to provide for them, and, so far 
 as he can, renounces his marital relations, going 
 to and remaining in California, that is ec[uiva- 
 lent to abjuring the realm, in its effect to enable 
 the wife to sue and be sued as a feme sole. Sup. 
 Ot., 1871, Osborn v. Nelson, 59 Barb. 375. 
 
 340. Whetlier or not, the wife would, in 
 such a case, be entitled to the wages of an in- 
 fant son supported by her, she can maintain an 
 action therefor in her own name as assignee of 
 her son after he becomes of age. lb. 
 
 341. After a divorce has been granted, and 
 a subsequent order made allowing alimony to 
 the wife, which is by the order itself declared 
 to be a final judgment and docketed as such, 
 and an execution thereon has been returned un- 
 satisfied, the divorced wife can maintain an ac- 
 tion in equity to set aside as fraudulent convey- 
 ances made by the husband to avoid carrying 
 out and performing such order for alimony. 
 Sup. Ct., 1873, Kamp v. Kamp, 46 How. 143. 
 
 842. Against husband alone. An action 
 for the breach of a covenant of seizin contained 
 in a deed executed by husband and wife, may 
 properly be brought against the husband alone, 
 where the property was not the separate estate 
 of the wife. Sup. Ct., 1875, Groat v. Phillips, 3 
 Hun, 412. 
 
 343. Against iwife alone. An action may 
 be maintained against a married woman alone, 
 to recover for trespasses committed by cattle 
 belonging to her separate estate. Ct. App., 1871, 
 Emoe V. Smith, 45 N. Y. (6 Hand,) 230. 
 
 10. Assignees in hankruptcy, Sfc. 
 
 844. An assignee in bankruptcy can 
 
 maintain an action to recover assets which the 
 bankrupt has fraudulently concealed from his 
 creditors, even though the discharge of the 
 bankrupt was unsuccessfully opposed by the 
 creditors on the ground of the same fraud. Sup. 
 Ct., 1872, Jmes v. Milbanlc, 6 Lans. 73. 
 
 345. Under our statute against usury, the 
 right to recover back the excess of interest paid 
 is not confined to the borrower, but passes to 
 his personal representatives, thus clearly treats 
 ing such excess as part of the debtor's estate. 
 His assignee in bankruptcy may therefore main- 
 tain an action to recover back such excess. 
 Brooklyn City Ct, 1873, Wheelock v. Lee, 15 
 Abb. N. S. 24. 
 
 346. Assignee for creditors. Where a 
 debtor assigned to one of his creditors an 
 amount of personal property in excess of the 
 latter's claim, as security for its payment, and 
 also to pay certain other debts set forth in a 
 schedule annexed, among which was a note to 
 C, for $600, without date stated or time of pay- 
 ment, such assignor being authorized to take 
 back the property assigned upon and after pay- 
 ment of all the debts specified, — Meld, that C, 
 having two notes amounting in the aggregate to 
 the sum specified, could recover therefor against 
 the assignee, but with interest only from the 
 date of assignment. Ct. App., 1878, Cooleuy. 
 Howe Machine Co., 53 N. Y. (8 Sick.) 620. 
 
 347. Foreign assignee. A sequestrator of 
 a corporation appointed under the laws of Penn- 
 sylvania, standing in the position of an assignee 
 for non-resident creditors, may sue here to avoid 
 a transfer by the debtor of its property in fraud 
 of creditors ; and it is not necessary to show by 
 
 his complaint his authority under the laws of 
 Pennsylvania to maintain the action. Sup. Ct., 
 1872, Barclay v. Quicksilver Mining Co., 6 Lans. 
 25. 
 
 348! Our courts will not recognize or en- 
 force a right or title acquired under foreign 
 bankrupt laws or proceedings, so far as affects 
 property within this State or demands against 
 residents of the State ; and trustees, appointed 
 by a foreign court in such proceedings, cannot 
 maintain an action here to recover property, 
 fraudulently obtained from the bankrupt. Sup. 
 Ct., 1874, Mosselman v. Caen, 1 Hun, 647. 
 
 11. Parties to same instrument. 
 
 349. On bond to several. Although a 
 bond is in form to the obligees jointly, yet if 
 the interest of the obligees is several, one may 
 sue on it alone. A promise made by the obligor 
 to pay one of the obligees his proportion, al- 
 though it may not be founded on a new con- 
 sideration so as to sustain an action thereon, 
 may yet be taken into consideration in deter- 
 mining whether the interest is joint or several. 
 Sup. Ct., 1873, Rees v. Nellis, M Barb. 440. 
 
 350. Joint and several liability. In an ac- 
 tion upon an obligation joint and several in its 
 nature, one or any number less than the whole, 
 or all the debtors may be sued. N. Y. Supr. 
 Ct., 1869, Quigley v. Walter, 2 Sweeny, 175. S. 
 P. Cridler v. Curry, 44 How. 345 ; Field v. Van 
 Cott, 15 Abb. N. S. 349. 
 
 851. Maker and guarantor. The cause of 
 action upon a promissory note against the 
 maker does not affect the guarantor, nor does 
 that against the guarantor affect the maker, 
 and an action cannot be sustained against them 
 jointly upon their several liability as such. Sup. 
 Ct., 1875, Barton v. Speis, 5 Hun, 60. 
 
 852. Sureties. 'Two persons, who are in- 
 duced by fraud to execute a joint undertaking 
 in behalf of another, and are compelled to pay 
 money thereon and do pay the same jointly, 
 can maintain a joint action to recover back the 
 money so paid. Sup. Ct., 1874, Bates v. Mer- 
 rick, 2 Hun, 568. 
 
 12. Miscellaneous cases in contract, 
 
 353. Bailee. A bailee or custodian of mon- 
 eys or securities, under an agreement requir- 
 ing him to deposit them with certain companies 
 and keep them so deposited until the happening 
 of certain events, is liable to an action immedi- 
 ately by the bailor, if he fails or neglects to 
 comply with such requirement, and refuses on 
 demand to return the money or securities. N. 
 Y. Supr. Ct., 1872, McCullough's Lead Co. v. 
 Strong, 35 N. Y. Supr. (3 J. and Sp.) 21 ; Aff'd., 
 S. C, 56 N. Y. (11 Sick.) 660. 
 
 354. Bank. A national bank continues to 
 exist notwithstanding the appointment of a re- 
 ceiver under the U. S. currency act, and a suit 
 may properly be brought against the bank for a 
 debt, and the defense should be made by it. 
 Sup. Ct., 1874, Security Bank of N.- Y. City v. 
 National Bank of Commonwealth, 48 How. 135 ; 
 S. C, 2 Hun, 287. 
 
 355. Bondholders. In an action to compel 
 the surrender and cancellation of town bonds 
 Illegally issued, the several bondholders may be 
 joined as defendants, although they have no 
 joint interest in the bonds. Sup. Ct., 1873, 
 Town of Venice v. Breed, 65 Barb. 597. 
 
 356. Creditor of estate against debtor of 
 estate. The creditor of the estate of a deceased 
 
26 
 
 ACTIONS. 
 
 person may maintain an action against the debt- 
 or of sucli estate, where the executor or admin- 
 istrator stands in a position equivalent in its 
 effect to a fraudulent collusion, or a refusal to 
 sue, as, where the administrator of the creditor 
 estate is executor of the debtor estate. Sup. Ct., 
 1873, Fisher v. Hubbeli, 7 Lans. 481 ; S. C, 65 
 Barb. 74. 
 
 357. Joint debtors. Where, in an action 
 against joint debtors, one only of whom is served 
 with process, judgment is perfected against the 
 one served pursuant to section 136 of the Code, 
 another action against all may be maintained 
 upon a complaint setting forth the original in- 
 debtedness and the recovery of the former 
 judgment, and a judgment obtained therein 
 which will be binding upon all. And this remedy 
 by action is not superseded by sections 375 to 
 381 of the Code. Com. App., 1872, Lane v. 
 Salter, 51 N. Y. (6 Sick.) 1 ; Rev'g S. C, 4 
 Rob. 239. 
 
 358. The judgment debtor is a proper party 
 defendant in an action by t)ie receiver appointed 
 in supplementary proceedings against him, to 
 set aside a conveyance as being fraudulent as 
 against his creditors. Sup. Ct., 1875, Allison v. 
 WelUr, 3 Hun, 608. 
 
 359. The mother of a minor, after the death 
 of the father, can maintain an action for services 
 rendered by such minor to a third party, not- 
 withstanding he contributes to her support. Sup. 
 Ct, 1871, Simpson v. Buck, 5 Lans. 337. 
 
 360. Municipal corporation. Moneys paid 
 from the treasury of a municipal corporation, by 
 its financial officer, without authority of law, 
 may be recovered back by action in the name 
 of such corporation against the party to whom 
 payment was made. Ct. App., 1874, People v. 
 Fields, 58 N. Y. (1 Sick.) 491. 
 
 361. The rule is the same, although such party 
 was acting as the attorney for claimants against 
 the corporation, and has paid over to the latter 
 the share agreed upon between them. lb. 
 
 362. The provision of chapter 383, Laws of 1870, 
 directing the comptroller of the city of New 
 York to pay over to the members of certain fire 
 companies, the amounts found due them under 
 chapter 876, Laws of 1869, must be construed in 
 connection with the latter act, which limits the 
 amount of claims to be adjusted to $50,000; the 
 intention of the legislature was not to declare 
 the legality of the claims specified, but to award 
 a gratuity ; and the comptroller was not author- 
 ized to audit so as to admit as due and create a 
 debt for, or to pay out any sum in excess of 
 $50,000. For any amount, therefore, paid by 
 him from the city treasury over that amount a 
 right of action exists in favor of the city to re- 
 cover it back. lb. 
 
 363. Payee of accommodation note . One 
 who, in good faith, advances money to the payee 
 of an accommodation note, on the credit of such 
 note before its maturity, can recover from the 
 maker only the amount advanced by him, and 
 the payee thereof is not a necessary party to an 
 action upon it. N. Y. Supr. Ct., 1871, Rhodes v. 
 Dymoch, 33 N. Y. Supr. (1 J. & Sp.) 141. 
 
 364. Post-testamentary child. A child 
 bom after the making of his father's will, and 
 not mentioned therein or provided for by set- 
 tlement, can maintain an action against the 
 children born previous to the will, to compel 
 distribution, and to determine what, if any, por- 
 tion of the testator's estate, devised to those 
 children who have received advancements, shall 
 belong to them ; but he cannot maintain an ac- 
 tion to recover from them any portion of such 
 
 advancements. Sup. Ct., 1871, Sanford v. San- 
 ford, 5 Lans. 486 ; S. C, 61 Barb. 293. 
 
 365. The purchaser of land at a foreclosure 
 sale is a necessary party to any action in which 
 it is sought to have the sale declared void. Sup. 
 Ct., 1874, Candee v. Burke, 1 Hun, 546. 
 
 366. A religious corporation is a necessary 
 party to an action brought to set aside an order 
 changing its name. Sup. Ct., 1875, Watkins v. 
 Wilcox, 4 Hun, 220. 
 
 367. A member of a religious corporation 
 cannot maintain an action to have a conveyance 
 of property by such corporation declared void, 
 upon the ground of irregularities in the proceed- 
 ings merely, where it appears that it received 
 fuU value therefor. lb. 
 
 368. 'Warrantor -of title. A grantor of land, 
 with warranty of title, having no further inter- 
 est therein, cannot maintain an action to remove 
 a cloud upon the title of such land, merely be- 
 cause of his warranty. He can be made liable 
 on his covenant only after eviction under para- 
 mount title. Sup. Ct., 1871, Bissell v. Kellogg, 
 60 Barb. 617. 
 
 13. Miscellaneous cases in tort. 
 
 369. Connecting railroads. Where several 
 railroad companies are jointly interested in the 
 passenger traffic over their connecting lines, they 
 may be held jointly and severally liable for the 
 negligent breach of a contract for transportation 
 over the common route, although made by one 
 of them in its own name exclusively. Ct. App., 
 1873, Wylde v. Northern R. R. Co., 14 Abb. N. 
 S. 213 ; 'S. C, 53 N. Y. (8 Sick.) 156. 
 
 370. The fact that some of the parties to a 
 contract do not appear in it, and their interest is 
 not disclosed thereby, does not prevent a party 
 from showing that such parties are jointly in- 
 terested, lb. 
 
 371. Conversion. A bank and its customer 
 for whom it has collected drafts, the indorse- 
 ments on which are forged, are liable jointly in 
 an action by the true owner for a conversion 
 thereof. N. Y. C. P., 1871, White v. Mechanics 
 National Bank, i Daly, 225. 
 
 372. Manufacturer. The manufacturer of a 
 steam-boiler may be liable to a purchaser or 
 person who employed him to build it, if it ex- 
 plodes because not properly constructed, but 
 third parties injured by such explosion cannot 
 maintain an action against him therefor. Sup. 
 Ct., 1866, Losee v. Saratoga Paper Co., 42 How. 
 385. 
 
 373. Master and mate. An action will not 
 lie in favor of a seaman, against the master and 
 mate of a vessel jointly, to recover damages for 
 cruel and inhuman treatment, where the acts 
 complained of were several and committed at 
 various times, ranging over a considerable 
 period, and in each case by the master or the 
 mate separately without the co-operation or di- 
 rection of the other. N. Y. C. P., 1869, Olzen v. 
 Schierenberg, 3 Daly, 100. 
 
 374. The owner of premises upon which a 
 house is being built under contract, can main- 
 tain an action against a city for injuries caused 
 by the bursting of a public sewer, in consequence 
 of its insufficiency or of an obstruction placed 
 therein with the knowledge of the city authori- 
 ties, even though the contractors may be bound 
 to deliver him a completed house notwithstand- 
 ing the injury. Ct. App., 1875, Nims v. Mayor, 
 etc., of Troy, 59 N. Y. (14 Sick.) 500. 
 
 375. Parties Injured by same act. If a 
 defendant, lia,ble to several parties for damages 
 
ACTIONS. 
 
 27 
 
 for a tort, settles with one of them, the action is 
 thereby severed, and the other injured parties 
 may maintain actions for their damages. Sup. 
 Ct., 1873, Woodbury v. Ddoss, 65 Barb. 501. 
 
 876. A false and fraudulent affirmation, made 
 by a seller of an estate to two or more pur- 
 chasers, is, in its nature, a several tort to each, 
 and they cannot join in actions therefor ; but if 
 they assign the cause of action, their assignee 
 can sue in the riglit of either of them. lb. 
 
 377. For penalties. The provision of the 
 game law of 1871 (chapter 721, section 38), 
 authorizing any person to sue for and recover 
 penalties provided by the act in his own name, 
 does not apply to corporations or confer upon 
 them power to prosecute for such penalties. 
 Sup. Ct., 1873, Ancient Sportsman's Club v. Mil- 
 ler, 7 Lans. 412. 
 
 378. Purchaser of bond. A person entitled 
 to a bond issued in his favor, but which has been 
 wrongfully obtained and sold by another to a 
 bona fide purchaser, cannot maintain an action 
 against such purchaser for the value thereof, 
 after demand and refusal, even though he knew 
 of the real owner's claim thereto. Sup. Ct., 
 1871, Osby V. Conant, 5 Lans. 310. 
 
 379. Such facts create no privity of contract 
 between the parties, which would entitle the 
 plaintiff to maintain an action as for money had 
 and received, nor any cause of action in the na- 
 ture of a tort. lb. 
 
 380. Purchasers of railroad. A sale of the 
 tracks, rolling stock and franchises of a railroad 
 company, by an assignee in bankruptcy, does 
 not vest the corporation as a legal entity in the 
 purchasers, nor do they, by virtue of such sale, 
 become stockholders in the pre-existing corpora- 
 tion ; therefore, they are not liable for the neg- 
 ligence of those operating the road, intermediate 
 the time of sale and the confirmation thereof by 
 the court. Ct. App., 1874, Metz v. Buff. Carry 
 and P. R. R. Co., 58 N. Y. (13 Sick.) 61. 
 
 381. > Separate land owners, suffering a 
 common injury from the discharge of surface 
 waters upon their lands from higher lands, 
 caused by the deepening of a ditch, may join in 
 an action to compel the filling of such ditch to 
 its former level, and restrain its being again 
 deepened. Sup. Ct., 1871, Foot v. Bronsan, 4 
 Lans. 47. 
 
 382. In such action, one who aided and di- 
 rected in deepening the ditch may be joined as 
 a defendant, although not interested in the 
 lands benefited. lb. 
 
 383. The State cannot, any more than an 
 individual, have a civil action for the recovery 
 of money, whether by way of damages for fraud 
 or other wrong, the wrongful conversion of chat- 
 tels, or for money received by and in the posses- 
 sion of others, except upon proof of title and own- 
 ership. Chuech Ch. J. and Rapello, J., dissent. 
 Ct. App., 1874, People v. Ingersoll, 58 N. Y. 
 (13 Sick.) 1 ; People v. Fields, id. 491. 
 
 384. For the wrongful conversion of money or 
 property belonging to a municipal corporation, 
 or for which it may have an action, there can- 
 not be, in the absence of legislation authorizing 
 them, concurrent remedies by the State and the 
 municipality prosecuted porj passu. lb. 
 
 385. A county is a public municipal corpora- 
 tion, with power under the State Constitution 
 and laws, to take and hold property for the 
 public use The property thus held is the prop- 
 erty of the county and for a conversion thereof 
 or a wrong done thereto, the county alone, and 
 not the State, can maintain an action. lb. 
 
 386. Ali moneys raised upon the credit of 
 
 the county, and for which its corporate bonds 
 have been issued and sold to bona fide purchasers, 
 are the corporate property of the county ; the 
 franchise thus exercised is not exercised by it as 
 agent of the State, nor is the State entitled to 
 the fruits thereof, although by reason of fraud, 
 mistake or ofiicial malfeasance, the amount real- 
 ized therefrom is in excess of the amount neces- 
 sary to accomplish the full purpose for which 
 the legislative sanction was procured. The ex- 
 cess, as well as the balance of the fund, belongs 
 to the county, and neither is recoverable for or 
 payable into the treasury of the State. lb. The 
 same doctrine applied relative to moneys raised 
 by the bonds and paid into the treasury of the 
 city of New York. Ct. App,, 1874, People v. Field, 
 58 N. Y. 491. 
 
 387. The fact that the legislative direction 
 was to raise money for the purposes of a statu- 
 tory civil division differing in extent from the 
 city, whose expenditures have ordinarily been 
 provided by taxation ordered by the State, the 
 avails of which went into its treasury, does not 
 affect the title, especially of the excess, when 
 such legislative direction is exceeded, where the 
 moneys are raised not by taxation but by the 
 bonds of the city, and are paid, not into the 
 treasury of the State, but of the city. lb. 
 
 388. The fact that the municipal body and its 
 officers who might or could exercise any power or 
 authority in the premises, have with full knowl- 
 edge acquiesced in the fraudulent misappro- 
 priation of the moneys and, although made par- 
 ties to the action, refuse to defend or maintain 
 their rights, does not work a transfer of the fund 
 or of the right of action. lb. 
 
 389. Sub-bailee. Where goods are entrusted 
 to a bailee to do work upon, and he, with the 
 knowledge and privity of the owner, employs 
 another to assist him in the work, the latter is 
 liable to the owner for an injury caused by his 
 unskilfulness, and an action can be maintained 
 against him therefor. Com. App., 1874, Baird v. 
 Daly, 57 N. Y. (12 Sick.) 236 ; Rev'g S. C, 4 
 Lans. 426. 
 
 14. Equitable actions. 
 
 390. For accounting. One of several parties 
 who have been engaged in dealing in stocks for 
 their joint benefit, cannot, after the business has 
 been adjusted by the distribution of the siockpro 
 rata among them all according to their respective 
 interests, maintain an action to set aside such 
 adjustment and compel an accounting among 
 all the associates, on the ground of neglect or 
 fraud on the part of the managers. Sup. Ct., 
 1874, Boody v. Drew, 46 How. 459. 
 
 391. All persons entitled under a will to an 
 allowance out of the income of the testator's 
 estate for their education, are necessary parties 
 to an action against the trustees for an account- 
 ing. Sup. Ct., 1872, Petrie v. Petrie, 7 Lans. 90. 
 
 392. The personal representatives of a deceas- 
 ed trustee are necessary parties thereto, unless 
 it is conceded that no part of the estate came 
 into his hands, and even then, it seems, they 
 might properly be joined. lb. 
 
 393. If there are not such representatives, 
 some should be appointed and made parties, 
 since the heirs-at-law do not represent the trustee 
 for the purpose of stating an account. lb. 
 
 394. AH other persons having an interest in 
 the estate are also necessary parties to such 
 action. lb. 
 
 395. Chattel mortgage. The owner and 
 holder of a junior chattel mortgage, can main- 
 
28 
 
 ADJOURNMENT— ADVANCEMENT. 
 
 tain an action to set aside a prior mortgage of 
 the same property, as being fraudulent against 
 creditors, although his own mortgage was given 
 to secure a precedent debt. Sup. Ct., 1875, 
 Anderson v. Sunn, 5 Hun, 79. 
 
 396. One citizen cannot maintain an action 
 to restrain the obstruction of a navigable river, 
 wliere no special injury to him, as distinguished 
 from other citizens, is shown. Sup. Ct., 1873, 
 Delaware ^ Hudson Canal Co. v. Lawrence, 2 
 Hun, 163. 
 
 897. An action in equity will not lie, in favor 
 of an individual citizen, against a city corpora- 
 tion, to restrain the further prosecution of street 
 improvements already let By contract, and the 
 issuing of further drafts in payment therefor ; 
 to have the contracts declared void ; to compel 
 the contractors to surrender the drafts already 
 received, and to enjoin them from transferring 
 them ; where the complaint does not show that 
 the plaintiff's premises had be^ interfered with, 
 nor that any assessment had been made or tax 
 levied to raise funds to meet the drafts. Sup. 
 Ct., 1871, Phelps V. City of Watertown, 61 Barb. 
 121. 
 
 398. A tax payer, at large, of a municipal- 
 ity, having no private interest in the question 
 more than other tax-payers, cannot maintain an 
 action in equity, as against the public author- 
 ities, to set aside or prevent acts claimed to be 
 illegal. Sup. -Ct., 1873, Tiffi v. Citi/ of Buffalo, 
 65 Barb. 460. 
 
 399. A tax-payer of a town, having no other 
 right, cannot maintain an action in equity against 
 the railroad commissioners of the town to re- 
 strain them from paying out moneys raised by 
 tax to pay interest on bonds, issued in behalf of 
 the town to aid in the construction of a railroad, 
 and claimed to be illegal and void. Ct. App., 
 1874, Kilbourne v. St. John, 59 N. Y. (14 Sick.) 21. 
 
 400. Under the provisions of chapter 161, Laws 
 of 1872, a tax-payer of a town may maintain an 
 action against commissioners for bonding such 
 town, appointed under chapter 907, Laws of 
 1869, to restrain the unauthorized issue of bonds 
 by them, as contemplated and threatened. 
 Gkovee, Folger and Johnson, JJ., dissent. Ct. 
 App., 1874, Ayres v. Lawrence, 59 N. Y. (14 Sick.) 
 192 ; Eev'g S. C, 68 Barb. 454. 
 
 401. Village trustees cannot, in their official 
 capacity, maintain an action to have an act of 
 the legislature changing the county seat from 
 their village to another place declared unconsti- 
 tutional, and restrain the board of supervisors 
 from acting under it. Sup. Ct., 1874, Havana, 
 Trustees of Village of, v. Board of Sups, of Schuy- 
 ler Co.. 2 Hun, 600. 
 
 ADJOURNMENT. 
 See Justice Cotjet ; Practice. 
 
 ADJUDICATION. 
 • See Former Adjttdication ; Judgment. 
 
 ADJUSTMENT OF LOSS. 
 See Insurance. 
 
 ADMEASUREMENT OF DOWEE. 
 See Dower. 
 
 ADMINISTRATOR. 
 
 See Executors and Admihisteatobs. 
 
 ADMIRALTY. 
 
 1. Canal boat. The U. S. District Court 
 has jurisdiction of a libel filed against a canal 
 boat to recover damages for a failure to deliver 
 merchandise upon a contract of affreightment to 
 transport grain from Buffalo to New York City, 
 the transportation being, in part, upon navigable 
 waters. U. S. Dist. Ct., 1875, Vim Buren v. 
 Canal Boat McChesney, 49 How. 178. 
 
 2. Collision. Where the owners of a vessel 
 injured by collision with another, brought a libel 
 in personam against all the general owners of the 
 colliding vessel, including its master, and it ap- 
 peared in evidence that such master and part 
 owner had the exclusive control of the vessel, 
 under an arrangement with the other owners, 
 sailing it on shares, hiring his own crew, paying 
 and victualling them, paying half the port 
 charges, and paying one-half the net freight 
 to the other owners, — Held, that such master 
 was the owner pro hac vice, and was liable for 
 the damages caused by such collision ; and the 
 fact that the other general owners were united 
 with him as co-defendants does not prevent a 
 recovery against him alone. U. S. Sup. Ct., 
 1871, Thorp v. Hammond, 42 How. 314. 
 
 3. The pommon-law rule, that where several 
 are sued as joint tort feasors, tljere may be a 
 recovery against one alone, or against more 
 than one and less than the whole number, 
 applies in admiralty; and it is in accordance 
 with admiralty practice to decree against one or 
 several of the respondents to a libel for a tort and 
 discharge the others, as the circumstances of the 
 case may require. lb. 
 
 4. In a libel against several as owners of a 
 vessel for an injury caused by a collision, it is 
 unnecessary to aver how they acquired their 
 ownership, or whether they are general or 
 special owners. lb. 
 
 5. Wliarfage claim. Claims for wharfage 
 against a sea-going vessel are maritime in their 
 nature, and are exclusively within the jurisdic- 
 tion of admiralty. Ct. App., 1871, Brookman t. 
 Hamill, 43 N. Y. (4 Hand,) 554. 
 
 . ADMISSIONS. 
 See Evidence. 
 
 ADULTERY. 
 See Criminal Law ; Marriage and Divoboe. 
 
 ADVANCEMENT. 
 
 1. What is. A conveyance of land by a 
 parent to his child, without asking or receiving 
 
ADVERSE POSSESSION. 
 
 29 
 
 any consideration, is prima facie an advancement, 
 althougli the deed may recite a money consider- 
 ation paid. Sup. Ct., 1871, Sanford v. Sanford, 
 6 Lans. 486 ; S. C, 61 Barb. 293. 
 
 2. A sum of money of considerable amount, 
 given by a father to his son to enable him to 
 start in or carry on business, is prima facie an 
 advancement; but inconsiderable sums given 
 occasionally by way of spending money and the 
 like cannot be so considered. lb. 
 
 ADVERSE POSSESSION. 
 
 1. wnat constitutes. To determine what 
 Acts are sufficient to constitute an adverse posses- 
 sion, attention should be given to the character 
 of the property, to discover the object of owning 
 it, and the uses to wliieh it would ordinarily be 
 applied, that the mind with which it was 
 possessed, as well as the mind with which such 
 possession was acquiesced in, may be the better 
 understood. Com. App., 1871, Corning r. Troy 
 Iron and Nail Factory, 44 N. Y. (5 Hand,) 577. 
 
 2. Where lands, the only use of which to the 
 owner is the privilege of flowing the banks, are 
 continuously used by him for that purpose, but 
 otherwise remain vacant, the fact that another 
 has been allowed habitually to pass over them 
 as a convenient access to his own property, and 
 has encumbered them with refuse machinery 
 and piled a few loads of stone thereon, there 
 being no inclosure or permanent improvements 
 made, is not sufficient to constitute an adverse 
 possession. lb. 
 
 3. To constitute a practical location of a lot or 
 line requires the mutual act and acquiescence of 
 the parties. There must be an actual location, 
 acquiesced in for a long time, probably twenty 
 years, unless there is an element of estoppel in 
 the case. lb. 
 
 4. Where a person, owning lands to low water 
 mark upon the west bank of a creek, built a 
 fence upon such west bank, not as a line fence, 
 but because it could be conveniently built there, 
 for the purpose of keeping animals from crossing 
 the creek upon his land, — Seld, that the fact 
 that the owner of the lands on the opposite side 
 of the creek had, at times, a fence running across 
 the stream and connecting with the first fence, 
 did not tend to show adverse possession, nor 
 did the fact that the latter's stock sometimes 
 crossed such creek on to the strip between the 
 fence and the water. Ct. App., 1874, Yates v. 
 Van DeBogert, 56 N. Y. (11 Sick.) 526. 
 
 6. Annual cutting of grass. Entering by 
 a party once a year, upon land not inclosed by 
 him nor cultivated, and not forming part of a 
 knowu'farm or lot occupied by 'him, and cutting 
 grass thereon, is not sufficient to form the basis 
 of an adverse possession, no matter how long 
 continued. Com. App., 1873, Wheeler v. Spinola, 
 54 N. Y. (9 Sick.) 377. 
 
 6. Filing of -wood on. The customary 
 piling of wood upon a vacant lot, for a period of 
 thirty years, without other evidence of a claim 
 of title, will not give title by adverse possession. 
 Com. App., 1873, Miller v. Downing, 64 N. Y. (9 
 Sick.) 631. 
 
 7. Claim of title. To make possession ad- 
 verse, so as to ripen into a title when long 
 enough continued, it must be under a claim of title 
 in fee. A claim simply of an unexpired term for 
 years, such as one under a lease for a term of 
 years, executed by a municipal corporation upon 
 a sale for unpaid assessments, is in accord with 
 
 and not in hostility to the true title. Ct. App., 
 1874, Bedell v. Shap^ 59 N. Y. (14 Sick.) 46. 
 
 8. Color of title. A deed given without 
 right on the part of the grantor is color of title, 
 sufficient whereon to found an adverse posses- 
 sion. Ct. App., 1873, Sands v. Hughes, 53 N. Y. 
 (8 Sick.) 286. 
 
 9. The mere taking by a purchaser of a 
 bad title is not fraud ; nor is the doctrine of 
 constructive notice of defects in the title, aris- 
 ing out bf neglect in the purchaser to investi- 
 gate, applicable on the qu,estion of adverse pos- 
 session, whether the parties in possession, claim- 
 ing title, entered with or without knowledge of 
 the outstanding claim, is not material, provided 
 they claim in hostility to it. lb, 
 
 10. It is not necessary, to render an adverse 
 possession effectual, that it should commence 
 under a vaUd deed ; but possession and claim of 
 title under a deed on a sale for an assessment, 
 if continued for twenty years, ripens into a per- 
 fect title, even though such deed may be invalid 
 for want of authority to execute it. Sup. Ct., 
 1874, Hilton v Bender, 2 Hun, 1. 
 
 11. It seems that an undisturbed possession 
 under an assessment title for over a third of a 
 century furnishes presumptive evidence of the 
 truth of the recitals in such deed. lb. 
 
 12. A deed describing the land conveyed as 
 "a certain piece of meadow or land covered 
 with water, situate or lying in the flax pond, so 
 called, and bounded" by a line commencing at 
 a certain cedar tree standing on the line of one 
 J's land, running thence southwesterly " through 
 said J's land," and after angling a number of 
 times, terminating at a point some distance from 
 the place of beginning, without inclosing any 
 land, — Held, not sufficient to form the basis of a 
 constructive adverse possession, under the 
 statute, as to any land above low water mark, 
 or as against a grantee of J, to any land what- 
 ever. Com. App., 1873, Wheeler v. Spinola, 54 
 N. Y. (9 Sick.) 377. 
 
 13. Where a tenant for life grants an estate in 
 fee, the possession of his grantee becomes ad- 
 verse from the time of his death. Per Gray, C. 
 Com. App., 1871, Saunders v. Hanes, 4A N. Y. (5 
 Hand,) 353. 
 
 14. Excepted in deed. One who enters 
 into possession of an enclosed field, under a deed 
 which describes the whole but excepts there- 
 from a specified portion previously conveyed by 
 his grantor to a religious society, cannot be 
 deemed to be in adverse possession of such ex- 
 cepted lot, although he occupies and cultivates 
 it with his own and wholly for his own benefit, 
 nor can his grantee, taking his deed containing 
 a similar exception after the deed to his grantor 
 is recorded, claim to be in adverse possession 
 thereof. Sup. Ct., 1875, First So. M. E. Church 
 in Irving v. Brownell, 5 Hun, 464. 
 
 15. Mistaken boundary. Where owners 
 of adjoining lands claim under deeds which they 
 suppose take them to a certain existing fence, 
 as the boundary between them, such deeds are 
 sufficient to base a claim on the part of each to 
 go to such fence, and to hold adversely up to 
 the same, although it is not on the true line be- 
 tween them ; and twenty years continued pos- 
 session under such claim will establish that as 
 the line. 'Sup. Ct., 1873, Robinson v. Phillips, 
 65 Barb. 418 ; Aff'd S. C, 56 N. Y. (11 Sick.) 634. 
 
 16. Occupation by permission. Where a 
 railroad company, occupying premises by per- 
 mission of the owner, has its road and appur- 
 tenances sold on foreclosure, and the purchaser 
 and his assigns continue to occupy the premises, 
 
30 
 
 AFFIDAVIT— AGRICULTURAL SOCIETY. 
 
 claiming under such sale, their possession is not 
 adverse to the original owner. Sup. Ct., 1875, 
 Borden v. South Side R. R. Co., 5 Hun, 184. 
 
 17. Where the owners of two adjoining lots, 
 both of which had been built upon for a period 
 of seventeen years, entered into an agreement 
 under seal, whereby, after reciting the fact of 
 ownership, and the possibility that the buildings 
 might not be correctly located, but that one 
 might encroach upon the lot of the other, they 
 mutually agreed, in consideration of one dollar 
 by each to the other paid, that neither would 
 disturb the other's possession so long as the 
 buildings should stand, and that such agreement 
 should bind their heirs and assigns, — Held, that 
 this was, in legal effect, a license by the party 
 encroached upon, to occupy the land so long as 
 the buildings should remain, and that conse- 
 quently there could be no adverse possession 
 after such agreement until the encroaching 
 building was destroyed. Ct. App., 1874, Deoyr 
 V. Schaefer, bb N. Y. (10 Sick.) 446. 
 
 18. No possession can be deemed adverse to a 
 party who has not, at the time, the right of entry 
 and possession. lb. 
 
 19. Tenant. The possession of one who en- 
 ters as a tenant, or of his assignee, cannot, while 
 that possession continues, be adverse to the title 
 of the landlord, or, by any mere lapse of time, 
 ripen into a title as against him, or those claim- 
 ing under him. Sup. Ct., 1872, Tompkins v. 
 Snow, 68 Barb. 525. 
 
 20. If, during such possession, the tenant 
 takes a contract for the purchase of the prem- 
 ises, but afterward surrenders it, and agrees to 
 resume his footing as tenant, no adverse pos- 
 session can commence while he so holds. lb. 
 
 21. The unauthorized receipt of the money on 
 such abandoned contract, by the administrators 
 of the deceased landlord, will not change the 
 position of the assignee of the tenant wjth re- 
 gard to the true owner, or turn his possession as 
 tenant into an adverse possession. lb. 
 
 22. A tenant may acquire title adverse to his 
 landlord by purchase at an assessment sale, in- 
 asmuch as such sale, if valid, originates a new 
 title, which supersedes the previous title of the 
 landlord, and on its consummation by deed, a 
 hostile right springs into existence. Sup. Ct., 
 1874, Hilton v. Bender, 2 Hun, 1. 
 
 23. It seems one tenant in common can as- 
 sert a title acquired under an assessment sale, 
 as against his co-tenant,and a bona fide purchaser, 
 for a valuable consideration, under such adverse 
 title, who never acknowledges any right in such 
 co-tenant, has a perfect right to insist upon it as 
 a defense to an action by the latter. lb. 
 
 24. Non-user, effect of. Where a right to 
 minerals and to mine for them, as incidental, is 
 claimed by express grant, an adverse posses- 
 sion cannot be predicated upon a mere non-user, 
 but must rest upon acts of the owner of the 
 surface hostile to and exclusive of the rights of 
 the owner of the minerals. Ct. App., 1874, 
 Marvin v. Brewster Irm Mining Co., 55 N. Y. 
 (lO^ick.) 538. 
 
 25. A grantor of land may claim to hold it 
 adversely against his grantee. So hdd, where 
 the grantor remained in possession of land in- 
 cluded by mistake in a deed given by him. 
 Sup. Ct., 1871, Cramer v. Benton, 4 Lans. 291. 
 
 26. Title by. Adverse possession for the pe- 
 riod prescribed by statute is not merely available 
 as a bar to the true owner, but it establishes a 
 title to the land, to uphold which a grant from 
 the true owner will be presumed. Ct. App., 
 1871. CahUl V. Palmer, 45 N. Y. (6 Hand,) 478. 
 
 27. A corporation which has taken possession 
 of lands under devise thereof to it on a trust 
 which was void, and made voluntary partition 
 thereof with the heirs-at-law in accordance with 
 the devise, and has continued to occupy its share 
 for over twenty years, claiming the sole and ex- 
 clusive ownership, and without conforming to 
 any of the provisions of the trust, has acquired 
 title thereto by prescription, and can dispose of 
 the same free from the trusts specified in the 
 will. Sup. Ct., 1871, Matter of Roman Catholic 
 So. of Newport and Schuyler, 4 Lans. 14. 
 
 28. Conveyance of lands adversely 
 possessed. A conveyance of lands made 
 while the same are in the possession of a person 
 holding under claim of title adverse to the 
 grantor, is void, and does not give to the grantee 
 a right to redeem as against the person in pos- 
 session, even though his grantor might have that 
 right. Sup. Ct., 1874, Ten Eyck v. Craig, 2 
 Hun, 452. 
 
 AFFIDAVIT. 
 
 1. Before whom. An affidavit can only be 
 taken before an officer authorized to take the 
 same at the time and place at which it is taken. 
 N. Y. Supr. Ct. Sp. T., 1875, Produce Bank ofN. 
 Y. V. Baldwin, 49 How. 277. 
 
 2. A notary public of Kings county, who has 
 not filed a certified copy of his appointment 
 with his autograph signature in the office of the 
 clerk of the city and county of New York, as re- 
 quired by chapter 807, Laws of 1873, cannot 
 take an affidavit in that city. lb. 
 
 AGRICULTURAL SOCIETY. 
 
 1. Po'wrer to preserve order. An incorpo- 
 rated agricultural society has the right, under 
 chapter 36, Laws -1859 (3 Edm. Stats. 770), to 
 employ persons to preserve order on its grounds 
 during a fair. Sup. Ct., 1873, Magoverning v. 
 Staples, 7 Lans. 146. 
 
 2. It is the right and duty of the persons so 
 employed to preserve order, and, if persons per- 
 sist in causing disorder after request, to maintain 
 order and conform to the regulations of the so- 
 ciety, made known to them, to put them off the 
 grounds. lb. 
 
 3. Such a society has the right to erect on 
 its grounds seats for the accommodation of 
 persons attending the fair, and to charge those 
 occupying them for their use, and to employ 
 all necessarj' force to exclude all who attempt 
 to occupy them without paying the price de- 
 manded, lb. 
 
 4. In order to justify the exclusion from such 
 seats of a person who had a right to enter on the 
 grounds, it must appear that compensation for 
 the use was exacted, that the occupant knew of 
 such requirement, and with such knowledge, af- 
 ter demand refused to pay. lb. 
 
 5. The refusal of one who holds a ticket to the 
 fair to leave the seats or pay the fee demanded, 
 will not, of itself, justify his removal from the 
 grounds ; but if his conduct is such, after his re- 
 moval from the seats, as to justify the belief 
 that he is going to create disorder on the 
 grounds, which can only be prevented by his 
 exclusion from them, his removal will be justifi- 
 able, lb. 
 
 6. Evidence of a custom to charge for the use 
 
ALBANY. 
 
 31 
 
 of the seats is not admissible, in an action to re- 
 cover damages for the forcible removal of the 
 plaintiff therefrom, without evidence to show 
 that he knew of the custom ; but evidence that 
 the society had established a charge for the use 
 of the seats, and directed the superintendent to 
 collect it, is proper and admissible for the pur- 
 pose of showing that the defendant was carrying 
 into effect the regulation of the society. lb. 
 
 ALBANY. 
 
 1. Contract with Alderman. Under the 
 provisions of sections 1, H, and 3, of the city 
 charter (chapter 67, Laws 1843), a contract made 
 by a member of the common council with a 
 committee appointed by such council for fur- 
 nishing carriages, etc., for a celebration of the 
 fourth of July, is void ; and the city -may setup 
 its invalidity as a defense, in an action thereon 
 notwithstanding the provision that such a con- 
 tract " may be declared void at the instance of 
 the city ; " or it may maintain an action to have 
 it declared void. Sup. Ct., 1872, Smith v. City 
 of Albany, 7 Lans. 14. 
 
 2. Compensation for land. The provis- 
 ions of section 1, title 7, chapter 77, Laws, 1870, 
 prescribing the mode of selecting commissioners 
 to assess and apportion the damages and re- 
 compense of owners of property taken for pub- 
 lic use, are in direct violation of section 7, Art. 
 1, of the constitution of this state. Sup. Ct., 
 1873, Menges v. City of Albany, 47 How. 244; 
 Affd S. C, 56 N. Y. (11 Sick.) 374. 
 
 3. The constitution contemplates that the 
 court shall exercise judicial disch-etion in ap- 
 pointing commissioners, while that law makes 
 their action ministerial merely in drawing three 
 names by lot from twelve selected by the com- 
 mon council, and appointing those so drawn, 
 lb. 
 
 4. The persons so appointed cannot legally act 
 as commissioners ; neither can they be consid- 
 ered as a jury within the meaning of that pro- 
 vision of the constitution, not being of sufficient 
 number, or drawn as such, or in accordance with 
 any provision of law for the drawing of jurors. 
 lb. 
 
 6. Damages for canal improvements. 
 Under chapter 503, Laws of 1866, providing for 
 the improvement of the canal basin at the city of 
 Albany, the liability of the city for damages re- 
 sulting therefrom is limited to such as are the 
 direct and immediate result of the acts done ; 
 and a claim by a property owner for consequen- 
 tial damages caused by the tearing down of a 
 bridge, whereby access to his premises is ren- 
 dered less commodious, is too remote. Ct. App., 
 1871, Coster Y. City of Albany, 43 N. Y. (4 Hand,) 
 399. 
 
 6. Printing Contract. Where the common 
 council, on the 26th of January, 1863, by a two- 
 thirds vote by yeas and nays, passed a resolution 
 that its proceedings be published in one daily 
 "paper, to be designated by it, at an. annual ex- 
 pense not to exceed $1,000, and that all the city 
 advertising be published in the same paper at 
 the rates prescribed by law for legal notices, the 
 designation to be for a term of three years ; also, 
 all printing and binding, chargeable to the city, 
 to be done by the proprietor of such paper, for 
 the like term, at rates current in the city, and 
 that the chamberlain be authorized to enter into 
 a contract for that purpose ; and by another 
 resolution designated a particular paper to do 
 
 the work; and such resolutions were entered in 
 tlie book of minutes by the clerk, and his signa- 
 ture added at the foot of the minutes ; — Held, 
 that the first resolution as to all but the party 
 with whom the contract was to be made, was 
 perpetual unless rescinded ; and that it needed 
 nothing but the designation of some daily paper, 
 at the end of each term of three, years, entered 
 upon the daily minutes, signed by tlie clerk, to 
 do all which the city need to do to make a note 
 or memorandum in writing subscribed by the 
 party to be charged thereby, within tlie mean- 
 ing of the statute of frauds. Ct. App., 1874, Ar- 
 gus Co. V. Mayor, etc., of Albany, 56 N. Y. (10 
 Sick.) 495; Afi'g7 Lans. 264. 
 
 7. It was not contemplated by that resolution 
 that the chamberlain sliould negotiate for the 
 publication of the proceedings at less than $1,000, 
 but if it was, that was done by the first contract 
 entered into by him. lb. 
 
 8. A resolution adopted by the common coun- 
 cil at the expiration of the first term of three 
 years, designating the same paper as the ofiieial 
 paper, in accordance with the former resolution, 
 also entered in the minutes and signed by the 
 clerk, and accepted in writing by the proprietor 
 of the paper, was a valid and binding contract 
 for a term of three years, although such resolu- 
 tion was not adopted by ayes and nays. lb. 
 
 9. The latter resolution was not one involv- 
 ing an appropriation of money, within the 
 meaning of section 1, chapter 138, Laws 1848. 
 lb. 
 
 10. Such contract was not invalidated by the 
 fact that the rate of printing and binding was 
 not expressed in the first resolution, nor, by the 
 mere delivery of the resolution to the contracting 
 publisher. lb. 
 
 11. Sale of land connected -with ferry. 
 The city has power to sell to a bridge company 
 the land held by it in connection with the south 
 ferry, no specific trust being imposed thereon 
 Sup. Ct., 1875, People v. City of Albany, 4 Hun, 
 678. 
 
 12. Washington Park, proceedings for 
 taking lands. Although in proceedings under 
 chapter 45, Laws of 1872, for the taking of lands 
 for Washington Park, the petition is required to 
 contain a description of the real estate sought 
 to be taken, with a statement of the names and 
 places of residence of the respective owners, yet, 
 a petition which in its body does not contain 
 these facts, but simply refers to schedules an- 
 nexed, in which they are set forth at length, is 
 a sufficient compliance with the statute to sup- 
 port proceedings founded thereon. Ct. App., 
 1873, Matter of Commissioners of Washington 
 Pari, 82 N.Y. (7 Sick.) 131. 
 
 13. The provisions of section 9, chapter 377, 
 Laws of 1870, giving the commissioners power 
 to sell such parts of the land then vested in 
 them, or thereafter acquired by them, as they 
 should think expedient, if unconstitutional, 
 
 -would not detract from the power conferred to 
 take lands for the park, that is, streets, exten- 
 sions or approaches to it for public purposes ; 
 and the power of sale is withheld by the act of 
 1872. lb. 
 
 14. Under the provisions of the act of 1872, 
 relating to Washington Park, proceedings insti- 
 tuted for the purpose of acquiring title to lands, 
 do not operate to divest such title, nor does the 
 property owner acquire any vested rights there- 
 by, until finarconfirmation of the report of the 
 commissioners of apprisal and payment or de- 
 posit of the compensation ; and until that time, 
 the park commissioners may be permitted, on 
 
32 
 
 ALIEN— AMENDMENTS. 
 
 proper application made, to discontinue such 
 proceedings, without the consent of the property 
 owners. Ct. App., 1874, Matter of the Commis- 
 sioners of Washington Park, 56 N. Y. (11 Sick.) 
 144. 
 
 16. Even if the granting of such permission is 
 discretionary with the court, its discretion will 
 not be reviewed on appeal. lb. 
 
 ALIEN. 
 
 1. Descent. The act of Nov. 26, 1827, by 
 which certain resident aliens *ere authorized to 
 take and hold real estate, it seems, conferred upon 
 their heirs the right to inherit their property, 
 notwithstanding their alienage, if the ancestor 
 died while holding under that authority. Sup. 
 Ct. 1872, McCarty v. Terry, 7 Lans. 236. 
 
 2. If the ancestor afterward became a nat- 
 uralized citizen, he then held his property, not 
 under the act, but under tlie same law as other 
 citizens, and alien heirs could not inherit from 
 him, unless he complied with the provision of 1 
 E. S. 720 (1 Edm. Stats. 668). lb. 
 
 8. Of father. The alienage of the father of 
 two brothers who are citizens will not impede 
 the descent of property from one brother to the 
 other; the inheritance between brothers being 
 immediate, and not through the father. Sup. 
 Ct., 1871, Smith V. Mulligan, 11 Abb. N. S. 438. 
 
 Children of female citizen and alien father take by 
 descent. Ch. 120, Laws o/1872. 
 
 Alienage of former owners does not affect title of 
 citizens. Ch. 141, 358, Laws of 1872. 
 
 Resident aliens take by descent from their parents. 
 CA. 261, Laws 0/1874. 
 
 4. Suit by. The fact that a resident of one 
 of the late Confederate States during the war of 
 the rebellion, took no active part therein, and 
 held no office or employment under the Confede- 
 rate government, did not change his condition 
 as an alien enemy, so as to give him a status in 
 our courts, and enable him to sue here during 
 the continuance of the war. Com. App., 1873, 
 Burnside v. Matthews, 54 N. Y. (9 Sick.) 78. 
 
 5. But a defence founded on such want of 
 status, must be pleaded specially and with cer- 
 tainty to a particular intent, and if not urged 
 until the end of the trial, occurring after the 
 disability is removed, it will be deemed waived. 
 lb. 
 
 ALIMONY. 
 See Masbiage Am> divobce. 
 
 ALTERATION OF INSTRUMENTS. 
 See Deeds ; conteaots. 
 
 AMENDMENTS. 
 
 1, Actions commenced in justices 
 courts. - Greater latitude of construction is 
 always allowable in regard to pleadings in ac- 
 tions commenced in justices' courts, than in 
 those commenced in courts of record ; and 
 amendments may be allowed, if necessary, to 
 state the cause of action more clearly and spe- 
 
 cifically, either on or after the trial, or on ap- 
 peal. Sup. Ct., 1871, Osborn v. Nelson, 69 Barb. 
 375. 
 
 2. Action for mechanic's lien. Under the 
 mechanic's lien law of 1863 (§ 5, ch. 500, Laws 
 of 1868), the power to amend pleadings is the 
 same as under the Code. Ct. App., 1874, GomJ- 
 ling V. Eaight, 58 N. Y. (18 Sick.) 623. 
 
 8. Affidavit for default. If the omission of 
 an officer, before whom an affidavit of the non- 
 service of answer or demurrer was regularly 
 taken, to sign the jurat, is not discovered until 
 after the entry of judgment by default, the court 
 has power in its discretion to permit an amend- 
 ment by directing the officer to sign nunc pro 
 tunc as of the day when the affidavit was ac- 
 tually sworn to. Ct. App., 1875, Fawcett v. Vary, 
 59 N. Y. (14 Sick.) 697. 
 
 4. Commission to take testimony. A 
 commission may, after its execution, be amended 
 in furtherance of justice, by allowing the judge 
 to sign nunc pro tunc both an allowance of the 
 interrogatories and the directions for returning 
 the commission, where it appears that the for- 
 mer were settled by stipulation of the parties, 
 and the latter, though indorsed by one of the 
 attorneys, were the same as such judge would 
 have given. N. Y. C. P., 1873, Leetch v. Atlan- 
 tic Mutual Ins. Co., 4 Daly, 518. 
 
 5. A complaint which alleges a joint obli- 
 gation may be amended, after proof of a joint 
 and several obligation, in an action against two 
 out of three obligors, so as to sustain a judg- 
 ment against them. N. Y. C. P., 1874, Field v. 
 VanCott, 15 Abb. N. S. 349. 
 
 6. The allowance of an amendment to the 
 complaint at the commencement of the trial, by 
 increasing the amount claimed, being a matter 
 resting in the discretion of the court, and not 
 injuring defendant, will not be interfered with 
 on appeal. N. Y. Supr. Ct., 1872, Hamilton v. 
 Third Av. R. R. Co., 44 How. 294 ; S. C, 13 Abb. 
 N. S. 318 ; 35 N. Y. Supr. (3 J. & Sp.) 118. 
 
 7. An amendment on the trial to a complaint 
 in an action for negligence, by alleging inca- 
 pacity for business as special damage, is in the 
 discretion of the court ; and it is not error to 
 allow it where only a general objection is offer- 
 ed. N. Y. C. P., 1872, Baldwin v. N. Y. and 
 Harlem Nav. Company, 4 Daly, 314. 
 
 8. In an action to enforce the specific perform- 
 ance of a contract, where the court finds that 
 the plaintiff is not entitled to the relief demand- 
 ed, it may allow an amendment of the complaint 
 so that a legal remedy in damages may be had. 
 Ct App., 1874, Beck v. Allison, 56 N. Y. (11 Sick.) 
 866; Eev'g S. C, 4 Daly, 421. 
 
 9. An amendment may 'properly be allowed to 
 a complaint on a bank draft, to set up a promise 
 by the defendant to pay it, after evidence of 
 such promise has been given without objection, 
 even though it will cut oH the defendant from 
 the defense of the statute of limitations ; such 
 amendment being merely an addition of matter 
 relating to the subject of the action, already set 
 out in the complaint, and not a separate and 
 independent cause of action. Sup. Ct., 1874, 
 Risley V. Phoenix Bank ofN. Tt. City, 2 Hun, 349. 
 
 10. In an action for damages caused by turn- 
 ing the course of waters by the side of a high- 
 way so as to throw them upon plaintiff's land, 
 allegations in the complaint of a breaking and 
 entering the plaintiff's close are clearly surplus- 
 age, and it is not error to permit the complaint 
 to be amended by striking them out so as to 
 leave only a statement of the true cause of ac- 
 hy such reversal, and, in that case, it is good in 
 
ANIMALS— ANOTHER ACTION PENDING. 
 
 33 
 
 tion. Sup. Ct., 1872, Moran v. McClearns, 44 
 How. 30 ; S. C, 63 Barb. 185. 
 
 11. Ans'wer. Under section 173 of the Code 
 the court may allow a defendant to amend his 
 verified answer, by striking out an admission of 
 a material fact, and substituting a denial there- 
 of, in furtherance of justice, upon proper terms. 
 Sup. Ct., Sp. T. 1871, Strong v. Dwight, 11 Abb. 
 N. S. 819. 
 
 12. In such a case, the defendant should be 
 required to file and serve an entire new amend- 
 ed answer, and leave the original answer on the 
 files unaltered so that the plaintiff may use it 
 in evidence if he desires. lb. 
 
 13. The court may, in its discretion, permit 
 a defendant to amend his answer by setting up 
 an entirely new defense. N. Y. C. P., 1873, 
 Diamond v. Williamsburg Ins. Co., 4 Daly, 494. 
 
 14. It is now almost a matter of course to per- 
 mit parties to amend their pleadings before trial, 
 when the amendment will, produce- no delay of 
 the trial, nor work any especial hardship to the 
 adverse party ; and in permitting such amend- 
 ments no discrimination ouglit to be made be- 
 tween statutory defenses, such as usury and the 
 statute of limitations, and other legal defenses. 
 Sup. Ct., Sp. T. 1873, Gilchrist v. Gilchrist's exe- 
 cutors, 44 How. 317. 
 
 16. Such amendments should be allowed upon 
 the usual terms, which are the payment of the 
 costs of the motion, and such other costs and ex- 
 penses as the adverse party will lose by reason 
 of the amendment. lb. 
 
 16. In an action upon an account,, where the 
 answer claims an overpayment of $9, and the 
 proofs show an overpayment of $12, the defend- 
 ant maj' properly be permitted to amend his 
 answer on the trial, to conform to the proofs. 
 N. Y. C. P., 1871, Kock V. Bonitz, 4 Daly, 117. 
 
 17. Statement for judgment by confes- 
 sion. A defective verification to a statement 
 for a judgment by confession may be amended, 
 even in an action to set aside as fraudulent a 
 conveyance of property wliich the defendant 
 claims by virtue of an execution sale under such 
 judgment. Ct. App., 1873, Codk v. Whipple, 55 
 N. Y. (10 Sick.) 150. 
 
 18. A notice of appeal given in good faith, 
 which is not signed at the end by anybody, but 
 merely indorsed on the back by an attorney as 
 appellant's attorney, if held defective on that 
 account, may be amended under the provision 
 of section 327 of the Code. Sup. Ct., Bur- 
 roughs V. Norton, 48 How. 132. 
 
 19. The Supreme Court has power; under 
 sections 174 and 327, of the Code, to allow a 
 notice of appeal to tlie court of appeals from an 
 order granting a new trial, given in good faith, 
 but by mistake omitting the required assent that 
 "if the order appealed from be aflBrmed judg- 
 ment absolute may be rendered against the ap- 
 pellant," to be amended, nunc pro tunc, after the 
 time for appealing has, expired, by inserting 
 sucli assent. Sup. Ct., 1872, Mott v. Lansing, 5 
 Lans. 616. 
 
 20. After new tiaal ordered. The Su- 
 preme Court has power, on special motion made 
 on notice, to allow a plaintiff to serve an amend- 
 ed or supplemental complaint, not changing es- 
 sentially though more particularly stating the 
 facts originally alleged', but changing the par- 
 ties plaintiff in conformity with a change of in- 
 terests of the original parties, even after a new 
 trial has been ordered by the Court of Appeals. 
 Sup. Ct., 1874, Getty v. Spaulding, 1 Hun, 115. 
 
 21. A material change in the demand for 
 judgment made by such amended complaint, is 
 
 not ipiportant, as the Code allows any relief 
 consistent with the facts to be granted. lb. 
 
 22. Record. The record of a decision of the 
 General Term upon appeal may, even after ap- 
 peal taken therefrom, be amended so as to con- 
 form to the decision actually made ; and this, 
 although the court granting the amendment is 
 composed in part of different justices from 
 those who took part in the hearing and decision. 
 Com. App., 1874, Buckingham v. Dickinson, 64 N 
 Y. (9 Sick.) 682. 
 
 See PLBADiifG ; Peactiob. 
 
 ANIMALS. 
 See Ch. 12, Laws 1874. 
 
 1. Cruelty to. Under chapter 682, Laws 
 1866 and chapter 375, Laws 1867, an arrest 
 without warrant can be made by a duly desig- 
 nated officer or agent of the American Society 
 for the Prevention of Cruelty to Animals, only 
 when an offense against those statutes is com- 
 mitted in Ills presence. N. Y. C. P., Sp. T., 
 1873, Broadway, Sf-c. Stage Co. v. Am. So. for the 
 Prevention of Cruelly to Animals, 15 Abb. N. S. 
 51. 
 
 2. The latter act is to be deemed declaratory 
 of the common law in respect to offenses- con- 
 sisting in cruelty to animals; and driving a 
 horse that is sick or sore, in ignorance that it is 
 so, is not, per se, tormenting or torturing it, 
 within the meaning of that act. lb. 
 
 3. An officer of that society, duly designated 
 by the sheriff, may arrest, or cause to be ar- 
 rested by a police officer, without warrant, a 
 person who is in his presence, over-driving a 
 horse, which at the time appears to be incapa- 
 ble of doing the work, and in such a manner as 
 to incur the offense of cruelty. N. Y. Marine 
 Ct., 1873, Christie v. Bergh, 15 Abb. N. S. 51. 
 
 4. Seizure when trespassing. Tlie pro- 
 visions of tlie act of 1867, amendatorv of chap- 
 ter 459, Laws 1862 (chap. 814, laws 1867, 7 Edm. 
 Stats. 186), relative to the seizure and sale of 
 animals trespassing upon private enclosures, are 
 constitutional and valid, inasmucli as they pro- 
 vide a regular legal proceeding therefor. Sup. 
 Ct., Sp. T., 1871, Squares v. Campbell, 41 How. 
 193 ; S. C. 60 Barb. 391. See amendatory acts, 
 cliap. 433, Laws 1869, 7 Edm. Stats. 449 ; chap. 
 776, Laws 1872. 
 
 6. If the captor proceeds with reasonable dil- 
 igence to make his complaint before the justice, 
 and does not unnecessarily retain, neglect or 
 abuse it, before making such complaint, he can- 
 not be held liable therefor in an action of re- 
 plevin, lb. 
 
 ANOTHER ACTION PENDING. 
 
 1. WTien a bar. The pendency of an ac- 
 tion against the executors and heirs of a de- 
 ceased person to enforce an equitable claim 
 against his estate, in which judgment of dis- 
 missal was rendered on the merits in favor of 
 the heirs, and judgment against the other de- 
 fendants was reversed on appeal, is good as a 
 bar, in favor of the heirs, to a subsequent suit 
 against the same parties for the same relief, un- 
 less they are to be deemed restored as parties 
 
34 
 
 APPEAL. 
 
 abatement in favor of all the defendants. N. Y. 
 Supr. Ct., 1871, Gregory ,. Gregory, 83 N. Y. 
 Supr. (1 J. & Sp.) 1. 
 
 APPEAL. 
 
 The cases relating to appeals in actions are 
 here collected and arranged substantially as in 
 the preceding volumes. Cases relating to ap- 
 peals in other proceedings will be found under 
 the titles of such proceedings. 
 
 The titles Cektiorari ; Error, writ op ; 
 New trials ; Summary proceedings, should 
 also be consulted. 
 
 I. Appeals to the Court op Appeals .... 34 
 
 1. When an appeal lies, 
 
 2. When an appeal does not lie, 
 
 3. Who may appeal. 
 
 4. Time for appealing. 
 
 5. Security on appeal', 
 
 6. What questions may be raised, 
 
 7. Decision on appeal. 
 
 8. Intendments. 
 
 9. Dismissal. 
 
 10. Rehearing. 
 
 11. Remittitur, judgment and costs, 
 
 12. Practice in general. 
 
 11. Appeals to General Term op Su- 
 preme Court . .^ 50 
 
 1. When an appeal lies. 
 
 2. Who may appeal. 
 
 3. Time for appealing. 
 
 4. Security ; stay of proceedings. 
 
 5. What questions may be raised, 
 
 0. Intendments; supplying proofs and de- 
 fects. » 
 
 7. Dismissal, 
 
 8. Rehearing, 
 
 9. Decision on appeal. 
 
 10. Costs, 
 
 11. Practice in general. 
 
 III. Appeals from Countt Court to 
 
 Supreme Court 65 
 
 IV. Appeals from Justice's Courts to 
 
 Count Y Courts 65 
 
 1. Notice of appeal ; undertaking. 
 
 2. Practice on appeal. 
 
 3. Decision, grounds for. 
 
 4. Costs. 
 
 V. Appeals prom Surrogate's Court 68 
 
 I. Appeals to the Court op Appeals. 
 1. When an appeal lies, 
 
 1. AUcwance of. An appeal to the Court 
 of Appeals should be allowed, in a case involv- 
 ing an important rule of law, whicli affects 
 many persons that hold relations to each other 
 similar to those between the parlies to the ac- 
 tion, and the principles controlling which have 
 not been settled by that court N..Y. Supr. Ct., 
 1875, Atlantic #• Pacifc Tel. Co. v. Barnes, 39 N. 
 Y. Supr. (7 J. & Sp.) 357. . 
 
 2. Several judgments in one record. 
 The fact that two or more judgments, really 
 several and entirely disconnected, chance to be 
 incorporated in the same record, as allowed by 
 law, as, where a plaintiff seeks to establish his 
 interest in two parcels of land, and judgment is 
 rendered against him as to one, and in his favor 
 as to the other, cannot deprive the parties of the 
 right of appeal within the time allowed by law ; 
 nor can th« determination of an appeal from 
 
 one of such judgments prevent an appeal from 
 the other. Ct. App., 1875, Genet v. Davenport, 
 60 N. Y. (15 Sick.) 194. 
 
 3. From judgments. When, after an order 
 of the General Term denying a motion for a 
 new trial based upon a case and exceptions, 
 judgment is entered upon the verdict without 
 any special direction therefor in the order, an 
 appeal may be taken therefrom directly to the 
 Court of Appeals. Ct. App., 1872, Caughey v. 
 Smith, 47 N. Y. (2 Sick.) 244. 
 
 4. In an action to compel a delivery of certain 
 stocks and the dividends thereon, a judgment 
 which directs a surrender of the stocks to the 
 plaintiff and awards execution forthwith for 
 the costs, is appealable as a final judgment, 
 although it further determines that the defend- 
 ant shall account for the dividends and interest 
 received by him thereon, and directs a reference 
 to take the account. Ct. App., 1872, Weaver v. 
 Barden, 49 N. Y. (4 Sick.) 286; Eev'g S. C, 3 
 Lans. 838. 
 
 6. From order appointing commission- 
 ers. An appeal lies to this court from an order 
 of the General Term of the supreme court, 
 affirming an order of Special Term, appointing 
 commissioners to appraise lands sought to be 
 acquired mider the railroad act. Ct. App., 1870, 
 Rensselaer ^ Saratoga R. ^ Co. v. Davis, 43 N. 
 Y. (4 Hand,) 137. 
 
 6. — in proceeding for contempt. A pro- 
 ceeding to punish for a contempt, though the 
 papers are entitled in the original action, is a 
 special proceeding, within the meaning of subd, 
 3, section 11 of the Code ; and an order made 
 therein adjudging a party in contempt is appeal- 
 able to this court. Ct. App., 1871, Erie Railway 
 Co. V. Ramsay, 45 N. Y. (6 Hand,) 637. 
 
 7. So much of an order adjudging a party in 
 contempt as directs a stay of his appeal from 
 the order he had disobeyed, is a final and abso- 
 lute order, and appealable to the Court of Ap.^ 
 peals. Ct. App., 1871, Brinkley v. Brinkley, 47 
 N. Y. (2 Sick.)_ 40. 
 
 8. — denying costs. The right to costs is 
 substantial, and when claimed by a party by 
 positive statutory provision, does not Involve 
 any question of discretion. An order, therefore, 
 denying costs in such «. case, is appealable to 
 the Court of Appeals. Ct. App., 1874, Sturgis 
 V. Spoffard, 58 N. Y. (13 Sick.) 103. 
 
 9. — denying neiw trial. An order of the 
 General Term denying a motion for a new trial 
 on the ground of surprise and newly-discovered 
 evidence, cannot be reviewed upon the merits 
 on appeal ; but, where the court has refused to 
 consider the merits, from an erroneous supposi- 
 tion that it had no power so to do, it is appeal- 
 able, and will be reversed by the Appellate 
 Court. Ct. App., 1871, Traceu v. Altmeyer, ^ 
 N. Y. (1 Sick.) 598. 
 
 10. In such case, the party appealing must 
 show the error affirmatively. Although the 
 opinion at Special Term shows that the merits 
 were not considered, yet, where the order is in 
 the ordinary form, it will be presumed, in the 
 absence of evidence to the contrary, that the 
 order of affirmance of General Term was made 
 upon the merits. lb. 
 
 11. An order denying a motion for a re-argu- 
 ment, based upon the ground that the judge who 
 tried the case eat upon the hearing at General 
 Term, is appealable to the Court of Appeals. Gt. 
 App., 1872, Graham v. Linden, 50 N. Y. (5 Sick.) 
 647. 
 
 12. The right of a party to have the trial of 
 his cause transacted in open court, with the 
 
APPEAL. 
 
 35 
 
 opportunity to be present, is a substantial right, 
 not resting in tlie discretion of tiie court ; and 
 an order denying a motion for a new trial based 
 on a violation of that right by a private com- 
 munication between tlie judge and the jury after 
 their retirement, is appealable to the Court of 
 Appeals. Com. App., 1878, Watertown Bank S/- 
 Loan Co. V. Mix, 61 N. Y. (6 Sick.) 558. 
 
 13. On appeal to the General Term from a 
 judgment alone, an order of the Special Term 
 denying a new trial, not appealed from, cannot 
 be reviewed there as an intermediate order in- 
 volving the merits and necessarily affecting the 
 judgment, but that court is confined to a review 
 of errors of law, arising upon exceptions taken 
 on the trial, and its order is reviewable by tlie 
 Court of Appeals. Ct. App., 1875, Thurberv. 
 Harlem Br. M. ^ F. R. R. Co., 60 N. Y. (16 
 Sick.) 326. 
 
 14. — denying resale. Although an order 
 denying a resale of lands, when made upon 
 grounds which are discretionary, is not review- 
 able in the Court of Appeals, yet, where the 
 moving party lias a legal right involved in the 
 motion; the order is appealable. Ct. App., 1873, 
 Howell V. Mills, 53 N. Y. (8 Sick.) 322. 
 
 15. So held in case of a sale made in pursuance 
 of a collusive arrangement to prevent competi- 
 tion, to the injury of an infant party, where the 
 motion, made in behalf of sucii infant, involved 
 also the riglits of subsequent mortgagees with 
 notice of tlie fraud. lb. 
 
 16. — dismissing appeal. An order grant- 
 in^a motion for leave to bring an action upon 
 a judgment, tliough involving a question of dis- 
 cretion, afietrts a substantial right ; and the party 
 feeling aggrieved thereby is entitled to have it 
 reviewed on appeal. A refusal, therefore, of the 
 General Term to entertain an appeal therefrom 
 and to pass upon its merits is an error of law, 
 reviewable in the Court of Appeals. Ct, App., 
 1874, Hanover Fire Ins. Co. v. Tomlinson, 68 N. 
 Y. (13 Sick.) 215. 
 
 17. An order dismissing an appeal to the Gen- 
 eral Term from an order of the Special Term 
 denying a motion to set aside an order made by 
 a single judge out of court, on the ground that 
 an appeal should liave been taken fron the orig- 
 inal order, is appealable to the Court of Appeals. 
 Ct. App., 1872, West Side Bank v. Pugsley, 12 
 Abb. N. S. 28 ; S. C. 47 N. Y. (2 Sick.) 368. 
 
 18. An order of the General Term dismissing 
 an appeal on the ground that notice was not 
 served in due time is appealable to the Court of 
 Appeals. Ct. App., 1878, /n matter of N. Y. Cent, 
 i- Hud. Riv. R. R. Co., 60 N. Y. (16 Sick.) 112. 
 
 19. — dissolving attachment. An appeal 
 lies to the Court of Appeals, under Cli. 741, Laws 
 of 1870 (7 Edni. Stats. 773), from an order dissolv- 
 ing an attacliment; and that statute applies to 
 and will support an appeal, pending at the time 
 it took effect, from an order not previously 
 appealable. Com. App., 1871, Yates v. North, 
 44 N. Y. (5 Hand,) 271. 
 
 20. — of reference. A compulsory order of 
 reference affects a substantial right, viz ; the 
 right to a trial in the mode and by the tribunal 
 prescribed by law, of which a party cannot be 
 deprived in the discretion of the judge ; and an 
 appeal lies therefrom to the Court of Appeals. 
 Ct. App., 1870, Kain v. Delano, 11 Abb. N. S. 29. 
 
 21. — refusing to set aside referee's 
 report. An order denying a motion to «et aside 
 the report of a referee, made more than sixty 
 days after final submission of the cause, and 
 after notice by one party of his election to end 
 the refsrence, is one affecting a aubstantial right, 
 
 is interlocutory, and involves no question of 
 discretion, and it is therefore appealable to the 
 Court of Appeals. Ct. App., 1870, Gregory v. 
 Cryder, 10 Abb. N. S. 289. 
 
 22. — staying proceedings. An absolute 
 unconditional order, staying proceedings in a 
 cause, without limitation as to time or other- 
 wise, is appealable under section 11 of the Code. 
 Ct. App., 1873, Knowlton v. Providence ^ N. Y. 
 Steamship Co., 53 N. Y. (8 Sick.) 76. 
 
 23. An order in a foreclosure action, wherein 
 the plaintiff claims that, by the exercise of a 
 stipulated option, tlie whole amount secured has 
 become due, staying proceedings on the part of 
 tlie plaintiff until further default, is appealable. 
 Ct. App., 1873, Bennett v. Stevenson, 53 N. Y. (8 
 Sick.) 508. 
 
 24. — vacating judgment. An order vacat- 
 ing a judgment is appealable to the Court of 
 Appeals. Cora. App., 1871, Fisher v. Hepburn, 48 
 N. Y. (3 Sick.) 41. 
 
 26. — refusing to vacate. It is the legal 
 right of a party wlio was not served with tlie 
 summons in an action, to have a judgment taken 
 against him by default, tliough regular on its 
 face, set aside on motion ; and an order denying 
 that right is appealable to the Court of Appeals. 
 Ct. App., 1874, White v. Coulter, 69 N. Y. (14 
 Sick.) 629 ; Eev'g S. C, 1 Hun, 357. 
 
 26. Whether the irregularities complained of 
 have been waived or cured by the laches of the 
 party, is a question not only involving the dis- 
 cretion of the court below, but perhaps the de- 
 termination of controverted facts, in which case 
 the decision below is not reviewable. lb. 
 
 27. — requiring verification. The question 
 whether or not a particular pleading must be 
 verified is one of substantial right which a party 
 is entitled to have determined summarily upon 
 motion ; and an appeal lies to the Court of 
 Appeals from an order made on such motion. 
 Ct. App., 1873, Fredericks v. Taylor, 14 Abb. N. 
 S. 77 ; S. C, 52 N. Y. (7 Sick.) 696. 
 
 28. It makes no difference that the court below 
 had a discretion as to the terms to be imposed 
 on deciding the motion. lb. 
 
 2. When an appeal does not lie. 
 
 29. Act restricting. The act prohibiting 
 appeals to theCourt of Appeals in cases involving 
 less than $500 (ch. 322, Laws of 1874), not speci- 
 fying when it should take effect, was controlled 
 by the general law on that subject (1 B. S. 157, 
 section 12), and took effect on the twentieth day 
 after its passage. Ct. App., 1875, Krom v. Levy, 
 60 N.Y. (15 Sick.) 126. 
 
 30. That act, having been passed May 2d, took 
 effect May 22(1, 1874 ; consequently an appeal 
 in a case involving less than $500, taken on the 
 latter day, was within its prohibition. lb. 
 
 31. The provision of that act prohibiting an 
 appeal to the Court of Appeals from any judg- 
 ment or order granting or refusing a new trial, 
 embraces a judgment of affirmance. The words 
 " granting or refusing a new trial " therein relate 
 to tlie word " order " only, and not to " judg- 
 ment." Ct. App., 1874, Butterfield v. Rudde, 58 
 N. Y. (13 Sick.) 489. 
 
 32. An application, under that act, for a cer- 
 tificate or order to authorize an appeal to the 
 Court of Appeals, may be made to any General 
 Term of the court from whose decision the appeal 
 is taken, and is not confined to the term at which 
 the decision was rendered. N. Y. Sup. Ct., 1874, 
 Butterheld v. Rudde, 47 How. 535 ; S. C, 38 N. Y. 
 Sup. (6 J. & Sp.) 44. 
 
36 
 
 APPEAL. 
 
 38. Such an application ought not to be granted 
 unless tlie court is satisfied, that the questions of 
 law involved ouglit to be reviewed by the 
 Court of Appeals, because they involve tlie con- 
 struction of a public statute ; or questions of law 
 of public importance, or affecting a large public 
 interest ; or a large number of cases are depend- 
 ing upon the determination of the one case ; or 
 tlie principles involved are of importance to 
 others than the parties litigating ; and in respect 
 to either of these classes of cases, the court must 
 be satisfied that there is fair and reasonable 
 ground to doubt the correctness of the decision 
 sought to be reviewed. lb. Followed, Woodward 
 V. Bugsbee, 2 Hun, 683. 
 
 34. The allowance of an appeal under that act 
 is discretionary with the General Term, and its 
 decision cannot be reviewed on appeal. Ct. App., 
 1874, People ex rel. Grissler v. Fowler, 55 N. Y. (10 
 Sick.) 675. 
 
 35. On a case appealed from a District Court 
 of New York city to the Court of Common Pleas, 
 involving but a trifling amount, that court will 
 not allow an appeal to the Court of Appeals as a 
 matter of course, where such appeal would be 
 burdensome to the respondent ; but will order a 
 reargument of the grounds on which he bases 
 his proposed, appeal. N. Y. C. P., 1870, AJiem v. 
 National Steamship Co., 11 Abb. N. S. 356. 
 
 36. From judgments. A paper in the form 
 of a judgment of the General Term, affirming 
 an order at Special Term overruling a demurrer 
 to the answer, and awarding the defendant execu- 
 tion for the costs, is not a final judgment, and is 
 not appealable to the Court of Appeals. Ct. App., 
 1872, Barker v. Cocks, 50 N. Y. (6 Sick.) 689. 
 
 37. — on a'ward. No appeal will lie from a 
 judgment entered upon an award, pursuant to a 
 submission and the statute regulating arbitra- 
 tions. The only remedy in such case, is by writ 
 of error. Ct. App., 1871, Turnbull v. Martin, 45 
 N. Y. (6 Hand,) 600. 
 
 38. — of Common Fleas. A judgment of 
 the Court of Common Pleas of the City of New 
 York, in an action removed there for trial from 
 a District Court of that city, is not reviewable 
 in the Court of Appeals unless the General Term 
 shall have allowed an appeal therefrom pursuant 
 tosubd. 3, section 11 of the Code. Ct. App., 1872, 
 Heinrich v. Kom, 47 N. Y. (2 Sick.) 658. 
 
 39. — of county judge. Where a decision 
 of the county judge holding a plankroad com- 
 pany taxable under the act in relation to plank 
 and turnpike roads (Laws of 1854, ch. 87), is 
 affirmed by the Supreme Court on appeal, the 
 judgment of the latter court is not reviewable in 
 the Court of Appeals. Ct. App., 1873, People ex 
 rel. Addison and E. Plankroad Co. v. Freeman, 
 52 N. Y. (7 Sick.) 656. 
 
 40. — on remittitur. A judgment entered 
 by the court below, upon and in conformity with 
 a remittitur from the Court of Appeals, is in sub- 
 stance the judgment of the latter, and not an 
 " actual determination " of the inferior court, 
 within section 11 of the Code and no appeal lies 
 therefrom. Ct. App., 1871, Willdns v. Earle, 46 
 N. Y. (1 Sick.) 358 ; S. C, 42 How. 255. 
 
 41. Part of judgment. Where in an action 
 seeking specific performance of a contract for 
 the sale of lands, or, in case a conveyance can- 
 not be had, then for alternative relief in damages, 
 the referee finds the plaintiff not entitled to a 
 conveyance, but awards him damages, he cannot, 
 after entering judgment in his own favor as to 
 the damages, appeal from the other part of the 
 judgment entered by the defendant. Ct. App., 
 1871, Murphy v. Spaulding, 46 N. Y. ( 1 Sick.) 556. 
 
 42. Discretionary orders. Matters in re- 
 spect to which the relief granted or refused in 
 the Supreme Court was the exercise of the dis- 
 cretion of the court, or which had never been 
 before that court for its consideration, are not 
 the subject of review in the Court of Appeals. 
 Sup. Ct., 1872, Leflerv. Field, 42 How. 420 ; Aff'd, 
 S. C, 47 N. Y. (2 Sick.) 407. 
 
 43. The introduction in the judgment roll of 
 papers showing that the referee had, on the set- 
 tlement of the case, improperly refused to allow 
 parts of the proposed case, will not raise any 
 question which can be considered on appeal 
 from the judgment. An order for the resettle- 
 ment of the case is not appealable. lb. 
 
 44. Order alloT^ing amendment. An 
 order allowing an officer before whom an affi- 
 davit was taken to sign ihe jurat nunc pro tunc as 
 of the date of its being filed for the purpose of 
 entering a default, is discretionary, and not 
 reviewable by appeal to the Court of Appeals. 
 Ct. App., 1876, Fawcett v. Vary, 59 N. Y. (14 
 Sick.) 697. 
 
 46. An order by a referee on trial allowing an 
 amendment and granting affirmative relief to 
 the party opposing a motion of General Term to 
 set aside such amendment, is discretionary, and 
 not appealable. Ct. App., 1871, Bertnett v. Lake, 
 47 N. Y. (2 Sick.) 93. 
 
 46. In an action to rescind a contract for the 
 sale of lands on the ground of fraud, the court 
 has power, after reversal of a judgment dismis- 
 sing the complaint, and a new trial ordered, to 
 allow an amendment to the complaint so a^ to 
 charge the defendants as trustees and to compel 
 them to account ; and the order allowing such 
 amendment is not appealable to the Court of 
 Appeals. Ct. App., 1874, Getty v. Spaulding, 68 
 N. Y. (13 Sick.) 636. 
 
 47. — refusing amendment. The allow- 
 ance of an amended or supplemental pleading is 
 within the discretion of the court, and an order 
 refusing the same cannot be reviewed in the Court 
 of Appeals. Ct. App., 1874, Gambling v. Maight, 
 58N. Y. (13 Sick.) 623. 
 
 48. — as to commission rogatory. It is 
 within the discretion of the Supreme Court to 
 issue a commission rogatory to take the testi- 
 mony of a witness in a foreign country, and the 
 exercise of that discretion is not reviewable in 
 the Court of Appeals. Ct. App., 1874, Anonymous, 
 69N. Y. (14 Sick.) 313. 
 
 49. — confirming report. An order con- 
 firming the report of Commissioners of Central 
 Park in proceedings under ch. 697, Laws of 
 1867, to acquire lands, is final and conclusive as 
 to all matters that could in any form be litigated 
 before and passed upon by the Commissioners, 
 and no appeal lies therefrom to the Court of 
 Appeals. Ct. App., 1872, Matter of Commis- 
 sioners of Central Park, 50 N. Y. (5 Sick.) 493. 
 
 50. — contempt, punishing for. An order 
 of the General Term, adjudging a defendant in 
 contempt, for disobedience of an order in the 
 action, and requiring him to comply with such 
 order within a time named, or in default, direct- 
 ing that his answer be stricken out, is not ap- 
 pealable, either as a final order affecting a sub- 
 stantial right, or as an order striking out an 
 answer. Ct. App., 1871, Brinkleu v. Brinkley, 47 
 N. Y. {2 Sick.) 40. 
 
 51. The refusal of the Special Term to pun- 
 ish a party, alleged to have violated an order 
 of the Court made in the progress of an action, 
 unless the other party liad a legal right to de- 
 mand the relief granted by the order alleged to 
 have been violated, does not affect a substantial 
 
APPEAL. 
 
 37 
 
 right, and an order of General Term in affirm- 
 ance thereof is not appealable. Ct. App., 1873, 
 Carrington v. Florida Railroad Company, 52 N. 
 Y. (7 Sick.) 683. 
 
 52. — continuing action. An order con- 
 tinuing an action in the name of one or more of 
 several co-plaintiffs, made upon proof that he 
 or tliey have talcen assignments, pending the 
 action, of the interests of the other plaintiffs, is 
 within the discretion of the Court, and is not 
 reviewable on appeal. Ct. App., 1874, Getty v. 
 Spaulding, 58 N. Y. (13 Sick.) 636. 
 
 53. — imposing costs. An order imposing 
 motion costs and disbursements on an attorney, 
 who in bad faitli instituted proceedings to dis- 
 bar another attorney, is not reviewable in tlie 
 Court of Appeals. Ct. App., 1875, In matter of 
 Kelly, 59 N. Y. (14 Sick.) 595. 
 
 54. — opening default. A motion to open 
 a default and let defendant in to defend is ad- 
 dressed to the discretion of the court. The 
 power to review that discretion is with the Gen- 
 eral Term, and its decision is not appealable. 
 Ct. App., 1874, Depeiv v. Dewey, 56 N. Y. (11 
 Sick.) 657. S. P. Birdsall v. Birdsall, 41 How. 
 389 ; Smith v. Belden, 60 N. Y. (15 Sick.) 642. 
 
 55. An order denying a motion to set aside a 
 default and let in defendant to defend, made 
 upon affidavits contradicting plaintiff's evidence, 
 also upon the ground that the evidence was in- 
 sufficient to authorize the judgment, is not ap- 
 pealable to the Court of Appeals. Ct. App., 
 1874, Ferris v. Ferris, 56 N. Y. (11 Sick.) 614. 
 
 56. Where a judgment in foreclosure was, by 
 order granted by default, directed to be paid in 
 coin, — Held, that a motion, made after a volun- 
 tary payment of tlie judgment in the manner 
 specified, to open the default and for a re-hear- 
 ing, was addressed to the discretion of the 
 court ; and that an order denying such motion 
 was not appealable. Ct. App., 1874, Miller v. 
 Tyler, 58 N. Y. (13 Sick.) 477. 
 
 57. A General Term order affirming one at 
 Special Term, denying a motion on tlie part of 
 one claiming to liave succeeded to the rights of 
 a defendant to have the judgment opened and 
 to be let in to defend, is not appealable to the 
 Court of Appeals. Ct. App., 1874, Davis v. 
 Borst, 58 N. Y. (13 Sick.) 669. 
 
 58. — on demurrer. The Code does not 
 allow an appeal to tlie Court of Appeals from 
 an order sustaining or overruling a demurrer, 
 but final judgment must first be given on the 
 demurrer, and the Court can review the order 
 on appeal from such judgment. Ct. App., 1871, 
 Ferris v. Aspinwall, 10 Abb. N. S. 137. S. P. 
 People ex rel. Kilbome T. Benedict, 47 N. Y. (2 
 Sick.) 667. 
 
 59. Nor will an appeal lie from an order of 
 the General Term reversing an order of the 
 Special Term sustaining a demurrer. Ct. App., 
 1872, Coit V. Stewart, 50 N. Y. (5 Sick.) 17. 
 
 60. — execution, refusal of leave to 
 issue. An order of the Supreme Court deny- 
 ing a motion for leave to issue execution after 
 five years, upon conflicting affidavits, is within 
 the discretion of the court, and is not appeal- 
 able. Ct. App., 1873, Shuman v. Strauss, 52 N. 
 Y. (7 Sick.) 404; AfE'g S. C, 34 N. Y. Super. (2 
 J. & Sp.) 6. 
 
 61. — refusal to set aside. An order re- 
 fusing to set aside an execution because issued 
 after five years from the entry of judgment, 
 without leave of court, is not appealable to the 
 Court of Appeals. Ct. App., 1874, Underwood 
 V. Green, 56 N. Y. (11 Sick.) 247. 
 
 62. — exonerating bail. A court in which 
 
 an action is pending to enforce the liability of a 
 sheriff as bail for a person arrested by him, may 
 in its discretion grant an order exonerating him 
 on his surrendering tlie person arrested, even 
 after the lapse of twenty days from the com- 
 mencement of the action, if suflicient excuse 
 be shown ; and such court has a discretion to 
 determine the sufficiency of the excuse, and its 
 decision thereon is not reviewable in the Court 
 of Appeals. Ct. App., 1874, Brady v. Brundaqe, 
 59 N. Y. (14 Sick.) 310. 
 
 63. — injunction, granting, continuing or 
 dissolving. An order continuing or dissolv- 
 ing a temporary injunction, when it does not 
 substantially dispose of the merits of the con- 
 troversy, involves a question of discretion, and 
 does not affect a substantial right, and, there- 
 fore, is not appealable to or reviewable in tlie 
 Court of Appeals. Ct. App., 1874, Pfohl v. Samp- 
 son, 59 N. Y. (14 Sick.) 174. S.P., Brown v. Keeny 
 Set. Cheese Asso., id. 242. 
 
 64. An order granting an injunction or ap- 
 pointing a receiver is not reviewable by the 
 Court of Appeals, if the court below had power 
 to make it. Ct. App., 1870, Fellows v. Heermans, 
 13 Abb. N. S. 1. 
 
 65. An order dissolving a temporary in- 
 junction, wlien it does not necessarily dispose 
 of the merits of the action, rests in the discre- 
 tion of the court, and is not reviewable in the 
 Court of Appeals. Ct. App., 1872, Paul v. Mun- 
 yer,47N. Y. (2 Sick.) 469. 
 
 66. Even though one of the parties may 
 have alleged the unconstitutionality of a law 
 wliich enters into or forms the foundation of the 
 litigation, yet, unless the question of the consti- 
 tutionality of such law was directly passed 
 upon in granting the order dissolving the injunc- 
 tion, that order is not appealable under 5ul)d. 4, 
 section 11 of the Code, as enacted in 1865. Ct. 
 App., 1872, People \ . Schoonmaker, 50 N. Y. (5 
 Sick.) 499. 
 
 67. — as to interpleader. An order grant- 
 ing or refusing an application under section 122 
 of the Code, for relief, in tlie nature of a bill of 
 interpleader, is within the discretion of the 
 court, and is not reviewable in the Court of Ap- 
 peals. The vacating of such an order, when 
 granted is equally within the discretion of the 
 court upon application and cause shown, and the 
 ground for vacating is not material. Ct. App., 
 1873, Barry v. Mut. Life Ins. Co. of New York, 
 53 N. Y. (8 Sick.) 536. 
 
 68. Although such order was entered upon 
 stipulation and consent of parties, the court has 
 power to relieve them therefrom, and vacate the 
 order in its discretion, and the order vacating 
 it is not appealable. lb. 
 
 69. — judicial sale, vacating. An appli- 
 cation for relief against a judicial sale is ad- 
 dressed to the discretion of the Supreme Court, 
 and its decision thereon is not reviewable in the 
 Court of Appeals. Ct. App., 1875, Sale v. Clau- 
 sen, 60 N. Y. (15 Sick.) 339. 
 
 70. An order opening a sale upon judgment 
 of foreclosure, though made after the report of 
 sale is confirmed and the* referee's deed deliv- 
 ered to the purchaser, is one resting In the dis- 
 cretion of the court below, and cannot be re- 
 viewed in the Court of Appeals. Ct. App., 1874, 
 Crane v. Stiger, 58 N. Y. (13 Sick.) 625. 
 
 71. — awarding issues to jury. In an ac- 
 tion seeking equitable relief, the awarding of 
 issues is discretionary with the court ; and even 
 if it were not, the defendant is not entitled abso- 
 lutely to an order at a preliminary stage of the 
 case for the framing of issues for a jury. An 
 
38 
 
 APPEAL. 
 
 appeal does not lie, tlierefore, from an order 
 denying sucii a motion. Ct. App., 1872, Colman 
 T. Dixon, 60 N. Y. (5 Sick.) 572. 
 
 72. — judgment, reversing. An order of 
 the General Term reversing a judgment at 
 Special Terra absolutely, without granting a 
 new trial, cannot properly be appealed from as 
 an order. The proper way of reviewing it is, 
 by causing judgment of reversal to be entered 
 up and appealing from such judgment. Ct. 
 App., 1871, Mehl v. Vonderwulbeke, 46 N. Y. (1 
 Sick.) 539. 
 
 73. — reversing order for judgment. An 
 order of the General Term reversing an order 
 of Special Term directing judgment for the 
 plaintiff on account of the frivolousness of the 
 answer, is not reviewable in the Court of Ap- 
 peals. Ct App., 1873, Wilkin v. Raphe, 52 N. 
 Y. (1 Sick.) 248. 
 
 74. Although costs be granted by the General 
 Term, and the defendant enter judgment there- 
 for, such entry, being unauthorized and irregular 
 and subject to be set aside on motion, does not 
 render the order appealable. lb. 
 
 75. — refusing to vacate. An order deny- 
 ing a motion to vacate a judgment in an action 
 whereof the court liad acquired jurisdiction, is 
 not appealable to the Court of Appeals ; such 
 judgment, tliough erroneous, being at most 
 voidable and not void, and tlie remedy of the 
 party aggrieved being by appeal from the judg- 
 ment. Ct. App., 1872, Schuettler v. Gardiner, 47 
 N. Y. (2 Sick.) 404. 
 
 76. — setting aside. An order of tlie Su- 
 preme Court setting aside a judgment for costs, 
 on tlie ground of irregularity, and directing a 
 re-adjustment or leaving the party to apply for 
 taxation does not affect a substantial right, and 
 is not appealable to tlie Court of Appeals. Ct. 
 App., 1872, Brovim v. Leigh, 13 Abb. N. S. 305 ; 
 S. C, 60 N. Y. (5 Sick.) 427. 
 
 77. A motion at the special term to set 
 aside a judgment entered on the report of a 
 referee, for the alleged misconduct of the ref- 
 eree, is addressed to the discretion of the judge, 
 and as it affects a substantial right, it may be 
 reviewed by the General Term on appeal ; but 
 no appeal lies from the decision of the General 
 Term in such a case to tlie Court of Appeals. 
 Ct. App., 1874, Livermore v. Bainbridge, 47 How. 
 354; S. C, 15 Abb. N. S. 436; 66 N. Y. (11 Sick.) 
 72. 
 
 78. — setting aside verdict. Applications 
 to set aside verdicts, reports of referees or judg- 
 ments, for matters in pais, dehors the record, are 
 addressed to the discretion of the court of 
 original jurisdiction, and orders granting or re- 
 fusing such applications are not reviewable in 
 the Court of Appeals. Ct. App., 1875, Williams 
 V. Montgomery, 60 N. Y. (15 Sick.) 648. 
 
 79. An order of the General Term, affirming 
 an order of the Court at Circuit granting a mo- 
 tion, made on tlie minutes of the judge, to set 
 aside a verdict as against evidence, is not ap- 
 pealable. Ct. App., 1874, Fallon v. Brooklyn 
 City, Hunter's Point and Prospect Park R. R. Co., 
 56 N. Y. (11 Sick.) 652. 
 
 80. An order setting aside a verdict on is- 
 sues ordered to be tried by a jury in an equity 
 case, and directing a reference to settle new 
 issues, is discretionary with the court, and is not 
 appealable. Ct. App., 1871, Colie v. Tifl, 47 
 N. Y. (2 Sick.) 119. 
 
 81. — neiw trial, granting. K, in a case 
 tried by a jury, tlie judgment is reversed and 
 a new trial ordered on questions of fact, no ap- 
 peal will Ue from such order to the Court of 
 
 Appeals. Ct. App. 1871, Wright v. Hunter, 46 
 N. Y. (1 Sick.) 409. S .P., Sands v. Crooke, id. 564 ; 
 Dickson V. Broadway and Seventh Ave. R. R. Co., 
 47 id. 507 ; Downing v. Kelly, 48 id. 433. 
 
 82. To sustain an appeal from such an or- 
 der, it must appear that the order was granted 
 on questions of law. Ct. App., 1872, Dickson v. 
 Broadway and Seventh Ave. R. R. Co., 47 N. Y. 
 (2 Sick.) 507. 
 
 83. An order of the General Term, granting 
 a. new trial on a traverse of an inquisition of 
 forcible entry and detainer, is not an order 
 " in an action," and is not appealable. Ct. App., 
 1872, People ex rel. Robinson v. McManus, 47 
 N. Y. (2 Sick.) 661. 
 
 84. An appeal will not lie from an order 
 granting a new trial in a quo warranto case, in- 
 stituted by an individual relator. Section 11 ' 
 of the Code, giving the right of appeal from such 
 an order, contemplates cases where final judg- 
 ment can be given which shall dispose of the 
 entire question in controversy, and where the 
 appellant can by his stipulation give the respond- 
 ent the right to a final judgment, as he cannot 
 do in such a case. Ct. App., 1875, People ex rel. 
 .Tudson V. Thacher, 60 N. Y. (15 Sick.) 625. 
 
 85. — new tried, denying. An order de- 
 nying a motion for a new trial on the ground 
 of surprise or newly discovered evidence, is 
 not reviewable in the Court of Appeals. Com. 
 App., 1871, Donley v. Graham, 48 N. Y. (3 Sick.) 
 658. S. P. Daln/mple v. Hannum, 54 N. Y. (9 
 Sick.) 654; Scoiille v. Landon, 50 N. Y. (5 Sick.) 
 686. 
 
 86. An order denying a motion for a new 
 trial, made upon the grounds that the evidence 
 did not support the verdict, and that the 
 damages were excessive, is not appealable to 
 tlie Court of Appeals. Ct. App., 1872, Campbell 
 V. Page, 80 N. Y. (5 Sick.) 658. 
 
 87. Whether a new trial should be granted 
 on the ground that the appellant to the General 
 Term, or her counsel, was misled by an intima- 
 tion of the judge as to the state of the question 
 presented, or the disposition proper to be made of 
 it, or whether, in consequence thereof, a re- 
 hearing before a referee should be had upon 
 any of the issues, are questions addressed to the 
 discretion of the court, and its determination 
 cannot be reviewed in the Court of Apneals. Ct. 
 App., 1874, Shuttleworth v. Winter, 66 IH.Y. {10 
 Sick.) 624. 
 
 88. — notice of appeal, requiring accep- 
 tance. An order requiring the plaintiff to ac- 
 cept notice of appeal and that the appeal stand, 
 in a case where notice of the entry of judgment 
 was given before taxation and entry of costs, 
 and notice of appeal was not served until more 
 than thirty days thereafter, although perhaps 
 unnecessary, does not affect a substantial right, 
 and is not appealable. Ct. App., 1875, Thurber 
 V. Chambers, 60 N. Y. (15 Sick.) 29. 
 
 89. — as to pleadings. A General Term 
 order affirming one at Special Term, striking 
 out part of an answer as irrelevant, requiring 
 other portions to be made more definite and 
 certain, giving defendant leave to make and 
 serve an amended answer within ten days, and 
 in default thereof, directing that that portion 
 ordered to be made more definite and certain 
 be stricken out, — ffeZrf, not appealable. Ct.App., 
 1874, Hanover Fire Insurance Co. v. Tomlinson, 
 58 N. Y. (13 Sick.) 661. 
 
 90. — receiver, appointment of. An order 
 made in an action against an executor for an ac- 
 counting, appointing a receiver of the personal 
 property of the testator, is not reviewable in the 
 
APPEAL. 
 
 39 
 
 Court of Appeals. t!t. App., 1873, Turner v. Crick- 
 ton, 53 N. Y. (8 Sick.) 641. 
 
 91. — of reference to take deposition. An 
 order under section 401 of tlie Code, appointing a 
 referee to take the deposition of a witness, claimed 
 to be necessary, for use upon a motion, and re- 
 quiring such witness to appear and attend before 
 the referee, does not affect any substantial right 
 of the witness, and is not reviewable in the Court 
 of Appeals. Ct. App., 1874, Rogers v. Durant, 56 
 N. Y. (11 Sick.) 669. 
 
 92. — to neTW referee. An order appointing a 
 new referee upon the refusal of the first one to 
 discharge his whole duty, is not reviewable by 
 appeal to the Court of Appeals. Ct. App., 1874, 
 Mundorffy. Mundorff, 59N. Y. (14 Sick.) 635. 
 
 93. — sending back to referee. An order 
 sending a case back to the referee to hear and 
 determine upon the question of costs, made in 
 an equity action, is not reviewable in the Court 
 of Appeals. Com. App., 1872, Taylor v. Root, 48 
 N. Y. (3 Sick.) 687. 
 
 94. — refusal to set aside referee's report. 
 An order refusing to set aside a referee's report 
 for want of findings of fact, being a ruling on a 
 mere question of practice, is not appealable to 
 this court, although the notice of motion was for 
 other relief as well ; the granting or withholding 
 of the proper relief under such a notice being 
 discretionary. Ct. App., 1871, Van Slyhe v. flV- 
 att, 46N. Y. (lSick.)269. 
 
 95. — directing restitution. A General Term 
 order, affirming one at Special Term, which di- 
 rects a restitution of property received and col- 
 lected upon a judgment which has been reversed 
 on appeal, is not reviewable in the Court of Ap- 
 peals. Ct. App., 1874, HoUoway v. Stephens, 58 
 N. Y. (13 Sick.) 670. 
 
 96. — reviving action. An order reviving an 
 action against the personal representatives of 
 one of several defendants who is deceased, does 
 not affect any substantial right, and is not ap- 
 pealable to the Court of Appeals. Ct. App., 1875, 
 Arthur -v. Griswold,m'S. Y. (15 Sick.) 143; S. 
 C, below, 2 Hun, 606. 
 
 97. K the cause of action does not survive 
 against them, that objection is available on the 
 trial ; but if it does and a joint judgment cannot 
 be rendered against them and the survivors, a 
 separate judgment may be rendered against 
 either, or the plaintiff may be directed to pro- 
 ceed against each class separately. lb. 
 
 98. — for security for costs. The granting 
 of an order for security for costs in an action 
 brought by one acting in a representative ca^ 
 pacity, is discretionary with the court, no mat- 
 ter at what stage of the action it is moved, and 
 the order is not reviewable in the Court of Ap- 
 peals. Ct. App., 1872, Gedney v. Purdy, 57 N. Y. 
 (2 Sick.) 676. 
 
 99. — for separate statement, etc., of 
 causes of action. The requirements of the 
 Code as to the separate statement and numbering 
 of causes of action relate to mere matters of prac- 
 tice over which the court has control, and unless 
 it appears that the party will or may be deprived 
 of some legal right by the denial of a motion 
 that the causes of action stated in the complaint 
 be separately stated and numbered, it will be 
 held not to involve a substantial right, and there- 
 fore not to be appealable. Ct. App., 1875, Gold- 
 berg v. Utiey, 60 N. Y. (15 Sick.) 427. 
 
 100. — setting aside assessment. An order 
 setting aside the assessment of a sheriff's jury 
 and granting a new assessment of damages, is 
 not appealable to the Court of Appeals. Ct. App., 
 1872, Samuels v. Bryant, 47 N. Y. (2 Sick.) 674. I 
 
 101. — setting aside summons and com- 
 plaint. An order denying a motion to set aside 
 a summons and complaint because the notice 
 inserted in the summons is under subdivision 
 1, instead of subdivision 2, of section 129 of the 
 Code, does not affect a substantial riglit, and is 
 not appealable to the General Term, or to the 
 Court of Appeals. Ct. App., 1872, McConn y. 
 N. Y. Cent. ^ Hud. Riv. R. R. Co., 50 N. Y. (5 
 Sick.) 176 ; Aff'g S. C, 7 Lans. 75. 
 
 102. A strict and literal compliance with a 
 statutory regulation is not necessarily of the 
 substance of the remedy, or substantial in its 
 character. lb. 
 
 103. — of Special Term. An order of the 
 Supreme Court at Special Term, refusing an ap- 
 plication to " send the case on appeal back to the 
 referee before whom the action was tried, to pass 
 upon certain additional findings of facts propos- 
 ed and requested by the defendant," is not re- 
 viewable in the CoUrt of Appeals until it has 
 first been considered and passed upon by the 
 General Term. Ct. App., 1875, Hunt v. Chapman, 
 49 How. 377. 
 
 104. Such order is not an intermediate order, 
 involving the merits, or necessarily affecting the 
 judgment, so as to be reviewable there on ap- 
 peal from the judgment, under section 329 of the 
 Code, though it might have been if affirmed by 
 the General Term. lb. 
 
 105. In such a case, where there are no excep- 
 tions to the facts found, or to the refusal to find 
 the proposed facts, but merely an exception to 
 the general conclusion of law that the plaintiff 
 is entitled to judgment, the court cannot review 
 the evidence with a view to reverse the judgment 
 on questions of fact, but will affirm it. lb. 
 
 106. Where, two questions of fact were sub- 
 mitted to and passed upon by the jury, on tlie 
 trial of an action, a motion for a new trial de- 
 nied, and judgment ordered for tlie defendant, 
 which order was affirmed at General Term ; and 
 subsequently, on defendant's application at Spe- 
 cial Term for judgment, the case was heard upon 
 the record and furtlier proofs, and judgment 
 directed; — Held, that an appeal from sucli judg- 
 ment could not be taken direct to the Court of 
 Appeals ; but that the questions arising upon 
 the findings of tlie jury, taken in connection 
 with the further proof 8, should first be presented 
 to and considered by the General Term. Ct. 
 App., 1874, Southworth y. Bennett, 58 N. Y. (13 
 Sick.) 659. 
 
 107. — that sheriff pay over An order 
 refusing to compel a sheriff to pay over moneys 
 collected on execution, as to which an adverse 
 claim is made, is within the discretion of the 
 court, and is not appealable to the Court of Ap- 
 peals. Ct. App., 1873, Mills v. Davis, 53 N. Y. 
 (8 Sick.) 349. 
 
 108. — as to supplemental ansiiver. A 
 motion for leave to file a supplemental answer 
 is addressed to the discretion of the court, and 
 an order made thereon is not appealable to the 
 Court of Appeals. Ct. App., 1871, Medbury v. 
 Swan, 46 N. Y. (1 Sick.) 200. S. P., Holi/oke v. 
 Adams, 59 N. Y. (14 Sick.) 233 ; Aff'g i Hun, 
 223. 
 
 109. — refusing TO^rit of assistance. The 
 granting of a writ of assistance to put a pur- 
 chaser at a foreclosure sale in possession, where 
 the party in possession resists upon some claim 
 of right, independent of and consistent with the 
 judgment, is not a matter of right but one of 
 discretion, and no appeal lies from an order re- 
 fusing it. Ct. App., 1875, Wilbor v. Danolds, 59 
 N. Y. (14 Sick.) 657. 
 
40 
 
 APPEAL. 
 
 3. Who may appeal. 
 
 110. Bankrupt. A judgment debtor who is 
 declared a bankrupt pending his appeal from a 
 judgment wliich is afterward affirmed by the 
 General Term, with costs, has a sufficient inter- 
 est to maintain an appeal from the judgment of 
 affirmance. Ct. App. 1874, Sanford y. Sanfgrd, 
 58N. Y. (11 Sick.)67. 
 
 111. Interest not affected. Where one of 
 two mortgages executed at tlie same time was 
 foreclosed, the property bid in l)y tlie mortgagee, 
 and convej'ed by quit-claim deed to other pur- 
 chasers, and in a subsequent action, to which 
 such mortgagee and purcliasers were parties, to 
 foreclose the otlier mortgage, a defense claiming 
 priority for tlie mortgage first foreclosed was 
 overruled and judgment entered adjudging an 
 equality of lien and ordering sale for the pay- 
 merit of both mortgages ; — Held, that such for- 
 mer mortgagee had no interests affected by the 
 latter judgment and could not appeal. Com. 
 App., 1872, Bush V.Rochester City Bani, 48 N. Y. 
 (3 Sick.) 659. 
 
 112. Not a party. Although a motion for a 
 mandamus to compel a sheriff to execute a deed 
 is opposed upon affidavits, among others, of an 
 adverse claimant setting up his claim, and upon 
 appeal to the General Term from an order grant- 
 ing the writ, such adverse claimant is recogniz- 
 ed as appellant without objection, he will not be 
 permitted to appeal from a mere order of af- 
 firmance. Com. App., 1873, People ex rel. Lee 
 V. Lynch, 54 N. Y. (9 Sick.) 681. , 
 
 113. Waiver of. A party who enters a judg- 
 ment wliich is partly in his favor and partly 
 against him, and resists an appeal taken by the 
 otlier party, and upon affirmance by the Court 
 of Appeals, causes the decision of that court to 
 be made the judgment of the court below, can- 
 not afterward appeal from the whole judgment ; 
 those acts amounting to an election to abide by 
 the judgment of the court below and a waiver of 
 the right to appeal. Ct. App., 1874, Genet v. 
 Davenport, 59 N. Y. (14 Sick.) 648. 
 
 4. Time for appealing. 
 
 114. Judgment for one defendant. An 
 appeal from a judgment in favor of one of sev- 
 eral defendants, in a case where separate judg- 
 ments may be rendered, must be taken within 
 two years from the entry of such judgment, and 
 the plaintiff need not wait until the determina- 
 tion of the entire controversy between all the 
 parties. N. Y. C. P., Sp. T., 1873, Camblos v. 
 Butterfield, 15 Abb. N. S. 197. 
 
 115. Fincil determination. A judgment of 
 the General Term which reverses in part the 
 judgment of the Special Term upon foreclosure 
 of a mortgage of a leasehold interest, and directs 
 the repayment by the plaintiff of certain sums 
 received by him, and that the amount thereof 
 be ascertained by a referee, does not become a 
 final determination, so as to be appealable to 
 the Court of Appeals, until the amount to be re- 
 paid is settled by the report of the referee and 
 its confirmation ; and a notice of appeal from 
 the judgment rendered at the date of such con- 
 firmation, in so far as it reverses the judgment 
 rendered at the Special Term, is sufficient, and 
 the appeal is in effect and fact from the actual 
 determination of the court as finally adjudged. 
 Com. App., 1874, Catlin v. Grissler, 67 N. Y. (12 
 Sick.) 363. 
 
 116. From order. A notice of an order 
 given before the entry of such order is not ef- 
 
 fectual for the purpose of limfting the time for 
 appealing. It must be given after such entry, 
 and a failure to give the notice as prescribed by 
 the Code extends the time for appealing without 
 limitation. Ct. App., 1873, In matter of N. Y. 
 Cent. Sr Hud. Riv. R. R, Co., 60 N. Y. (15 Sick.) 
 112. 
 
 117. There is no provision in the Code limit- 
 ing the time to appeal, in cases coming under 
 the fourth subdivision of section 11 thereof. 
 Ct. App., 1872, Cushman v. Brundrett, 50 N. Y. 
 (5 Sick.) 296. 
 
 118. Enlarging time for. The rule that the 
 statutory time for bringing an appeal or writ of 
 error cannot be enlarged by the courts, has not 
 been changed by the Code. Ct. App., 1871, 
 Sherwood v. Pratt, 11 Abb. N. S. 115. 
 
 5. Security on appeal. 
 
 119. WTien discharged. The satisfaction 
 of a judgment which has been affirmed by the 
 Court of Appeals discharges the sureties in the 
 bond given on such appeal, and entitles the ap- 
 pellant to a return of securities delivered by him 
 to the surety to indemnify him against liability 
 on the bond. Sup. Ct., 1872, Gove y. Lawrence, 
 6 Lans. 89. 
 
 120. Action on undertaking. An action 
 can be maintained on an undertaking given upon 
 appeal to the Court of Appeals, against the 
 sureties therein, notwithstanding the approval of 
 the sureties has never been indorsed as required 
 by section 196 of the Code, if, after the plain- 
 tiff's attorney had objected to one of the sure- 
 ties, he consented in writing to his being ac- 
 cepted, and the defendant's attorney promised 
 to have it indorsed but neglected to do so, and 
 the appeal was taken as though it had been 
 done. Sup. Ct., 1875, Gopsill v. Decker, 4 Hun, 
 626. 
 
 6. What questions may be raised. 
 
 121. Additional alloTvance. The decision 
 of the court below on the question of an ad- 
 ditional allowance to a defendant, will not be 
 reviewed on appeal where the allowance made 
 does not exceed* the maximum fixed by the 
 Code. Ct. App., 1872, Southwick v. Southmck, 
 49 N. Y. (4 Sick.) 610; Aff'g S. C, 2 Sweeny, 
 234. 
 
 122. Assessment of damages. The Court 
 of Appeals cannot correct any supposed errors of 
 the jury in the assessment of damages. Ct 
 App., 1871, Williams y. Sargeant, 46 N. Y. (1 
 Sick.) 481. 
 
 123. Costs. Although the granting of costs 
 in a particular case is in the discretion of the 
 court below, yet, where it appears that such 
 discretion was exercised under an erroneous view 
 of the law, it is the duty of the appellate court 
 to correct the error. Ct. App., 1871, Morris v. 
 Wheeler, 45 N. Y. (6 Hand,) 708. 
 
 124. Custom. It seems that an Appellate 
 Court, having only jurisdiction of questions of 
 law, cannot receive proof of a custom or usage 
 relied on as giving a peculiar and technical 
 meaning to words and phrases used in a com- 
 mercial contract, and as controlling the inter- 
 pretation and effect of the contract, either in 
 support or in impeachment of a judgment ; but 
 it must be proved and determined as a question 
 of fact upon the trial below. Ct. App., 1874, 
 Marine Nat. Bk. v. National City Bk., 59 N.' Y. 
 (14 Sick.) 67. 
 
 126. Error due to appellant. Where a 
 
APPEAL. 
 
 41 
 
 judgment was settled and modified according to 
 the request of tlie appellant, he cannot urge on 
 appeal that it is too general and indefinite. Ct. 
 App., 1872, Proestler v. Kuhn, 49 N. Y. (4 Sick.) 
 654. 
 
 126. A defendant whose *iotlon that a verdict 
 be directed in his favor was denied, and one 
 directed for the plaintiff instead, cannot on 
 appeal raise the objection that the cause should 
 have been submitted to the jury. Cf. App., 
 1874, Colligan v. Scott, 58 N. Y. (13 Sick.) 670. 
 
 127. A party cannot question on appeal a fact 
 found by the referee at liis own request. Cora. 
 App., 1874, East River Nat. Bk. T. Gove, 57 N. 
 Y. (12 Sick.) 597. 
 
 128. — in favor of respondent. On appeal 
 from an order granting a new trial, the appellant 
 cannot attack rulings in favor of the respondent 
 made upon the trial. Com. App., 1878, Simpkins 
 V. Low, 54 N. Y. (9 Sick.) 179 ; Aff'g 49 Barb. 382. 
 
 129. — not shoivn by record. Although 
 a refusal of the General Term to exercise its 
 discretion, from a supposed want of authority so 
 to do, is an error which may be reviewed and 
 corrected on appeal, yet, where such error ap- 
 pears only in the opinion and is nowhere shown 
 by the record, the Court of Appeals cannot 
 review it. Ct. App., 1872, Laning v. New York 
 Central R. R. Co., 49 N. Y. (4 Sick.) 521. 
 
 130. Exceptions taken. On appeal from 
 an order of the General Term granting a new 
 trial in a case tried by a jury, which may have 
 been made on questions of fact, the appellate 
 court will not examine the exceptions taken on 
 trial except for the purpose of determining 
 whether the appeal should be dismissed or judg- 
 ment absolute entered against the appellant. 
 Ct. App., 1871, Sands v. Crooke, 46 N. Y. (1 
 Sick.) 564. 
 
 131. If any exception should appear to have 
 been well taken, the court would be justified in 
 rendering judgment absolute. lb. 
 
 132. If a question put is capable of a construc- 
 tion which makes it competent, a general objec- 
 tion will not be regarded on appeal, although it 
 is also capable of a construction which inay 
 render it incompetent. Ct. App., 1871, Briant v. 
 Trimmer, 47 N. Y. (2 Sick.) 96. 
 
 133. Under a general exception to the recep- 
 tion in evidence of a notice declaring an option 
 to receive a certain sum of money upon a con- 
 tract with " one year's interest," the party 
 objecting cannot, on appeal, raise the question 
 that it was defective for the. reason that tlie 
 contract called for only eleven months' interest. 
 Ct. App., 1872, Collins v. Hall, 50 N. Y. (5 Sick.) 
 688. 
 
 134. A general exception to the validity of an 
 order of highway commissioners refusing to lay 
 a road is not sufficient to raise the question, on 
 appeal, of the genuineness of the signatures, or 
 the power of two to act in the absence of a 
 third. Com. App., 1873, Chapman v. Gates, 54 
 N. Y. (9 Sick.) 132. 
 
 135. An objection, taken on trial, to the ad- 
 mission in evidence of a copy of an order, " that 
 such copy is not the best or competent evidence 
 of the order, that the record or original order 
 should be produced," is not sufficient to raise, 
 on appeal, the question of the sufficiency of the 
 proof of loss of the original order. lb. 
 
 136. A general objection to a party's books 
 as evidence will not avail to raise the question 
 of their admissibility on appeal, although the 
 point of objection is sufficiently apparent from 
 the nature and subjectmatter thereof, or the 
 objection is one which could not be obviated, | 
 
 even if specified. Com. App., 1873, Wall v. 
 Elhs, 54 N. Y. (9 Sick.) 684. 
 
 137. An objection to proof of a declaration 
 denied by a previous witness, as " incompetent, 
 irrelevant, and immaterial," is not sufficient to 
 autliorize the objection on appeal, that the 
 declaration called for was at a different time from 
 that as to which the witness was interrogated. 
 Ct. App., 1874, Schermerhorn v. Gregg, 55 N. Y. 
 (10 Sick.) 670. 
 
 188. A mere general exception to a charge in 
 which several distinct propositions are stated, 
 some of them correct, does not bring before the 
 appellate court any proposition of law which can 
 be claimed to be erroneous. Ct. App., 1872, 
 O'Leary v. Walter, 50 N. Y. (5 Sick.) 683 ; Aff'g 
 S. C, 10 Abb. N. S. 439. S. P. Qroat v. Gile, 
 51 N. Y. (6 Sick.) 481. 
 
 189. A general exception taken by a plaintiff 
 to the ruling of the court in directing a verdict 
 for tlie defendant, is sufficient to present the 
 question, on appeal, whether or not the plaintiff, 
 upon any finding warranted by the testimony, 
 would have been entitled to recover ; and it is 
 not necessary that specific request should be 
 made to submit the questions of fact to the jury. 
 Ct. App., 1ST2, Stone v. Flower, 41 N.Y. (2 Sick.) 
 566. S. P. Low V. Hall, id. 104. 
 
 140. An exception to the refusal of a judge to 
 grant a non-suit, where no ground for the motion 
 is stated at the time, cannot be sustained for 
 any defect in the plaintiff's proof which might 
 have been supplied had such defect been pointed 
 out ; nor is such refusal error, where there is 
 evidence on the material points of the case suf- 
 ficient to warrant their submission to the jury. 
 Ct. App., 1871, Tracey v. Altmyer, 46 N. Y. (1 
 Sick.) 598. S. P. Webb v. Odell, 49 N. Y. 4 
 Sick.) 583. 
 
 141. Where a party presents numerous requests 
 to charge, an exception to " the refusal to charge 
 each of the requests submitted except so far as 
 embraced in the charge delivered," and, to the 
 charge itself, so far as inconsistent with the 
 requests, is too general, and presents no question 
 for review on appeal. Ct. App., 1872, Ayrault v. 
 Pacific Bank, 47 N.Y. (2 Sick.) 570 ; Aff'g S. C, 
 1 Abb. N. S. 381 ; 6 Rob. 337. 
 
 142. A separate exception to each such refusal 
 to charge, without any exception to the charge 
 as given, raises no question for review. Com. 
 App., 1874, Hoyt v. Lang Isl. R. R. Co., 57 N. Y. 
 (12 Sick.) 678. 
 
 148. Where the charge to the jury was to the 
 effect that the representation alleged to be false 
 must have been made witli intent to deceive, 
 and if the defendant believed its truth and was 
 deceived or honestly mistaken, he was not re- 
 sponsible, but left it to tlie jury to say whether 
 the defendant as a director looking after the 
 interest of tlie stockholders, or as a prudent man 
 looking after his own, and having the means of 
 ascertaining whether the treasurer's statements 
 were true or not, was not bound to ascertain it, 
 an objection " to so much of the charge as 
 stated that the defendant had no right to rely 
 upon the report of the Secretary and Treasurer 
 without further examination," — Held not to meet 
 the charge or point out the precise ground of 
 objection and to be insufficient. Com. App., 
 1874, Hawkins v. Palmer, 57 N. Y. (12 Sick.) 664. 
 
 144. — to conclusions of la-w. Exceptions 
 to the conclusions of law of a court or referee, 
 coming after the power to rectify is gone, need 
 not be so specific as an exception to a charge. 
 Ct. App., 1872, Newlinv. Lyon,i9'N. Y. (4 Sick.) 
 661. 
 
42 
 
 APPEAL. 
 
 145. No exception. Upon appeal from a 
 judgment eiiteieii on tlie report o£ a referee, 
 wliere no exceptions were taken on the trial, 
 notliing is reviewable except tlie conclusions of 
 law found by tlie referee. Ct. App., Slocum v. 
 Freeman, 46 How. 437. 
 
 146. Although the case contains no exceptions 
 to legal conclusions and no findings of fact by 
 tlie Special Term, yet, where the judgment is 
 modified adversely to the appellant at General 
 Term and affirmed as so modified, such modifi- 
 cation may be reviewed on appeal. Ct. App., 
 1872, Hart v. Wandle, 50 N. Y. (5 Sick.) 381. 
 
 147. Where issues are framed for trial by jury 
 in an equity case, their findings are used upon 
 the final hearing for the information of the court 
 upon which it makes its findings of fact, and 
 exceptions may be taken at such hearing, the 
 same as if the whole case had been tried by the 
 court' without the intervention of a jury ; and 
 where no such exceptions are taken, the ques- 
 tions cannot be raised on appeal. Com. App., 
 1872, Birdsall v. Patterson, 51 N. Y. (6 Sick.) 43. 
 
 148. Excessive' damages. An objection 
 that the damages allowed were excessive is 
 properly addressed to the court below, and its 
 decision thereon is not reviewable in the Court 
 of Appeals. Com. App., 1874, Metcalf v. Baker, 
 57 N. Y. {12 Sick.) 662. 
 
 149. Former adjudication. Unless there 
 has been some plain mistake, as in overlooking 
 some statutory provision or controlling decision, 
 the Court of Appeals will not review matters 
 decided after full argument on a former appeal. 
 Ct. App., 1872, Eaton v. Alger, 47 N. Y. (2 Sick.) 
 345. Nor questions then involved, though not 
 presented bv counsel upon the former argument. 
 Ct. App., "1874, Joslin V. Cowee, 66 N. Y. (11 
 Sick.) 626. 
 
 150. Judgment, improper clause in. The 
 remedy for a provision improperly inserted in a 
 judgment is by motion to the court below to 
 correct the judgment, and the q&estion cannot 
 properly be raised on appeal. Ct. App., 1873, 
 People ex rel. Oswald v. Goff, 62 N. Y. (7 Sick.) 
 434. 
 
 151. Jurisdiction. On appeal in an action 
 for partition of real estate, where there are no 
 findings of law or fact, and no exceptions except 
 to the judgment and decree, the only question 
 which can be considered is whether, upon the 
 petition or the facts stated in it, the court had 
 jurisdiction to entertain the proceedings. Ct. 
 App., 1874, Howell v. Mills, 56 N. Y. (11 Sick.) 
 226. 
 
 162. The objection that the case is one ex- 
 clusively of maritime jurisdiction, and that the 
 State courts have no jurisdiction thereof, if not 
 raised in the court below, cannot be on appeal. 
 Com. App., 1874, Steers v. Liverpool, N. Y. ^ P. 
 Steamship Co., 57 N. Y. (12 Sick.) 1. 
 
 153. IVIiadirection in the charge not being 
 ground for a new trial on a motion made on the 
 minutes of the judge, is not properly before the 
 court on appeal from a judgment and an order 
 denying a motion so made, yet it may be con- 
 sidered in connection with a refusal to charge a 
 proposition which was necessary to correct such 
 misdirection, and to show that the proposition 
 declined was not included in anything that had 
 been said ; and the judgment may be reversed 
 for such erroneous refusal Sup. Ct., 1874, 
 Dutchess Co. Mut Ins. Co. v. Hachfield, 47 How. 
 330; S. C, 1 Hun, 675. 
 
 164. Motion after judgment. An appeal 
 from a judgment of the General Term does not 
 bring up for review a motion for a re-argument, 
 
 made after judgment was perfected. Com. App., 
 
 1872, ^ewis V. Greider, '51 N. Y. (6 Sick.) 231. 
 156. Order not appealed from. An ap- 
 peal from one order does not authorize the re- 
 view and reversal of any other order, no matter 
 how closely the two may be united, or how in- 
 ter-dependent they may be. Ct. App., 1872, 
 Matter of Commissioners of Central Park, 50 N. Y. 
 (5 Sick.) 493. 
 
 156. An appeal from a judgment of the Gener- 
 al Term, affirming a judgment previously ren- 
 dered in favor of two partners, does not bring up 
 for review an order substituting the personal 
 representative of one of the plaintiffs wlio died 
 pending the appeal. Ct. App., 1872, Hackett v. 
 Belden, 47 N. Y. (2 Sick.) 624. 
 
 157. Order not followed. The Court of 
 Appeals will review only actual determinations 
 of the court below. Accordingly, held, that, 
 where a judgment, entered upon an order of 
 General Term, did not follow the order, the 
 remedy was by motion to correct the judgment, 
 and not by appeal, in the first instance, to that 
 court. lb. 
 
 158. Order for new trial. Although an 
 order granting a new trial was or may have been 
 upon questions of fact, yet, where tliat point is 
 not made upon the argument, the Court of Ap- 
 peals may entertain the appeal and dispose of 
 the case upon the merits. Com. App., 1872, 
 Randolph v. Loughlin, 48 N. Y. (3 Sick.) 456. 
 
 169. Order sustaining demurrer. The 
 Court of Appeals may review an order sustain- 
 ing a demurrer to one of the defendant's answers 
 setting up an application for removal to the 
 United States Court, as an order involving the 
 merits and necessarily affecting the judgment, 
 although the trial was had and the judgment 
 appealed from was entered upon the issues pre- 
 sented by the other answers. Ct. App., 1871, 
 Ayres v. Western R. B. Corporation, 45 N. Y. (6 
 Hand,) 260. 
 
 160. Questions of fact. Questions of fact 
 upon a trial by referee can be reviewed in the 
 Court of Appeals only in those cases which are 
 made exceptions to the general rule by statute. 
 Ct. App., 1872, Field v. Munson, 47 N. Y. (2 
 Sick.) 221. 
 
 161. The Court of Appeals cannot, under the 
 Code, review a question of fact, either in cases 
 at law or in equity. Ct. App., 1871, Haight v. 
 Williams, 46 N. Y. (1 Sick.) 683. 
 
 162. The only case in whicli the Court of Ap- 
 peals is authorized to review questions of fact 
 is when the General Term reverses a judgment 
 entered upon a trial by the court or referees 
 upon the facts, and so certifies in the order of 
 reversal ; and a judgment rendered after a sub- 
 mission of special issues to a jury in an equit- 
 able action, is no exception to the rule. Ct. App., 
 
 1873, VermUyea v. Palmer, 52 N. Y. (7 Sick.) 
 471. 
 
 163. Resort cannot be had to the opinion of 
 the General Term to ascertain whether or not 
 a reversal was upon questions of fact, but, unless 
 this appears in the order or judgment, the court 
 on appeal, will be confined in its review to ques- 
 tions of law. Com. App., 1872, Sheldon v. Shel- 
 don, 61 N. Y. (6 Sick.) 354. S. P. Thornton v. 
 Autenreith, 63 N. Y. (10 Sick.) 659. 
 
 164. But if the referee has found any mate- 
 rial fact wholly without evidence or against un- 
 disputed evidence, that is an error of law, which 
 is reviewable on appeal. lb. 
 
 165. It is not necessary to authorize a review 
 of the questions of fact on appeal, that the 
 order of the General Term, reversing the judg- 
 
APPEAL. 
 
 43 
 
 ment at Special Term for error of fact, should 
 specify the particular findings held erroneous ; 
 but it is sufficient that it state such order to be 
 based wholly, or in part, on questions of fact. 
 Ct. App., 1872, Hubbell y. Meigs, 50 N. Y. (6 
 Sick.) 480. 
 
 166. It is the duty of the Supreme Court to 
 set aside a verdict which is against the clear 
 weight of evidence ; and when it grants a new 
 trial on questions of fact those questions are 
 open to review in the Court of Appeals, and that 
 court occupies in respect thereto the same posi- 
 tion as the court below. Ct. App., 1872, Smith 
 V. ^tna L. Ins. Co., 49 N. Y. (4 Sick.) 211. 
 
 167. The Court of Appeals will review a ref- 
 eree's findings of fact, only where they are 
 wholly unsupported by evidence. Where there 
 is some evidence to sustain them they will be 
 presumed correct, no matter what the weight of 
 the rebutting evidence. Ct. App., 1871, Burgess 
 V. Simonson, 45 N. Y. (6 Hand,) 225. S. P. 
 Thomas v. Payne, 47 N. Y. (2 Sick.) 675; Aff'g 
 S. C, 2 Sweeny, 605 ; Tmg v. U. S. Submarine 
 and Torpedo Boat Co., 49 How. 360 ; 60 N. Y. 
 ■15 Sick.) 644; AfE'g 1 Hun, 161. 
 
 168. The Court of Appeals has no power to 
 pass upon the weight of conflicting evidence, 
 "but facts found by the court below, if sustained 
 by any evidence, will be taken as true. Ct. 
 App., 1872, Finch v. Parker, 49 N. Y. (4 Sick.) 1. 
 S. P. McDanolds v. Titus, 57 N. Y. (12 Sick.) 655 ; 
 Woodruff V. Valentine, id. 663; Merrifield v. 
 Woodruff, id. 673. 
 
 169. Although the rule be rigid which requires 
 clear, ample and conclusive proof of mistake, 
 before the written contract of parties will be 
 altered upon oral testimony, yet the Court of 
 Appeals has no power to review the decision of 
 the trial court on that question, rendered upon 
 conflicting evidence. Ct. App., 1873, Van Tuyl 
 V. Westchester Fire Ins. Co., 55 N. Y. (10 Sick.) 
 657. 
 
 170. In reviewing orders, the Court of Appeals 
 is not precluded from passing upon the facts, but 
 will not usually do so when the evidence js con- 
 flicting. Ct. App., 1873, Wilmerdings v. Fowler, 
 15 Abb. N. S. 86. 
 
 171." Upon appeal from a General Term order 
 denying a motion for a new trial in a case tried 
 by the court, where the decision does not autho- 
 rize final judgment but directs further proceed- 
 ings, questions of fact are not reviewable. Ct. 
 App., 1874, Piatt V. Piatt, 58 N. Y. (13 Sick.) 646. 
 
 172. A motion for a nonsuit made first at the 
 resting of plaintiff's case, and again at the close 
 of all the proofs, concedes that the court may 
 pass upon the facts, and upon appeal from the 
 judgment the Court of Appeals will dispose of 
 the case as they may deem the facts to be. Ct. 
 App., 1873, Excelsior F. Ins. Co. v. Royal Ins. 
 Co. of Liverpool, 55 N. Y. (10 Sick.) 343. 
 
 173. Statement of facts. Where a verdict 
 is taken, by consent, for plaintiff, subject to tlie 
 opinion of the court at General Term, and a 
 statement of facts is prepared as prescribed by 
 subd. 2, section 333, of the Code, and made part 
 of the record, upon which judgment is rendered 
 by the General Term, the court, on appeal from 
 such judgment, can review only the facts pre- 
 sented by that statement. Ct. App., 1872, Jay- 
 cox V. Cameron, 49 N. Y. (4 Sick.) 646. 
 
 174. Questions of law. The granting of a 
 nonsuit by a referee and an exception thereto 
 by the plaintiff, raise a question of law, upon 
 which tlie General Term may reverse the judg- 
 ment, if the decision of the referee be erroneous, 
 and which may be reviewed on appeal, notwith- 
 
 standing the findings of fact and conclusions of 
 law, subsequently drawn by tlie referee, upon 
 their face present no error, and the judgment of 
 reversal does not purport to have been upon 
 questions of fact. Ct. App., 1872, Scofield v. 
 Hernandez, 47 N. Y. (2 Sick.) 318. 
 
 176. Although the judgment of tlie General 
 Term, reversing a judgment entered on report 
 of a referee, does not state such reversal to be 
 upon questions of fact, the appellate court is 
 not precluded from examining the evidence so 
 far as to determine whether the legal conclusions 
 of the referee, dependent upon the facts and cir- 
 cumstances disclosed by tlie evidence, are cor- 
 rect, where there is no finding as to such facts. 
 Com. App., 1871, Duffy v. Masterson, 44 N. Y. (5 
 Hand,) 667. 
 
 176. On appeal to the Court of Appeals, re- 
 sort cannot be had to the evidence for the pur- 
 pose of establishing error in the conclusions of 
 law ; but such error must be made to appear, if 
 at all, from a comparison of the conclusions 
 with the facts found or admitted on the record. 
 Ct. App., 1872, Baker v. Spencer, 47 N. Y. (2 
 Sick.) 562. 
 
 177. To make a legal error in a finding of 
 fact which the Court of Appeals can review, 
 there must be no evidence in the case upon 
 which the finding may be based. To make 
 such error in a refusal to find, the evidence 
 must, be clearly conclusive in favor of the finding 
 proposed. Ct. App., 1873, Bryce v. Lorillard 
 Fire Ins. Co., 46 How. 498; 55 N. Y. (10 Sick.) 
 240. 
 
 178. To render an exception to a referee's 
 finding of fact the occasion of ' a reversal, it 
 must appear, not only that there is no compe- 
 tent evidence to sustain the finding excepted to, 
 but also that his conclusions of law necessarily 
 depend upon such finding, and that there is no 
 other fact presented by the testimony which 
 will justify the conclusion of law arrived at and 
 
 ' the judgment based thereon. Ct. App., 1874, 
 Caswell v. Davis, 58 N. Y. (13 Sick.) 223. 
 
 179. When the case does not contain any evi- 
 dence, but the findings of fact by the referee 
 only, it will be assumed that there was no evi- 
 dence from which any other fact could be found ; 
 and, where the conclusions of law have been 
 excepted to, the question to be determined is 
 whether such conclusions are warranted by the 
 facts found. Ct. App., 1871, Stoddard v .Whiting, 
 46 N. Y. (1 Sick.) 627. 
 
 180. Where an appeal is based upon excep- 
 tions to the legal conclusions of a referee, the 
 court must assume that the findings of fact are 
 correct ; and the appellant cannot raise the 
 question that there is no evidence to sustain 
 them. Ct. App., 1874, Second National Bank of 
 Oswego V Poucher, 56 N. Y. (11 Sick.) 348. 
 
 181. While usually much weight is given to a 
 referee's findings of fact, yet where they are 
 found on instruments in writing, which have no 
 different aspect in one court than another, the 
 appellate court will review them, and if satis- 
 fied they are erroneous, will reverse the judg- 
 ment founded thereon. Ct. App., 1874, Bigler v. 
 Barnes, 56 N. Y. (11 Sick.) 654. 
 
 182. Where a fact found by a referee is pred- 
 icated upon other findings of fact, some of 
 which are unsupported by any evidence or are 
 against evidence, it is an error of law which 
 may be reviewed on appeal ; and where the un- 
 proved facts may have had a controlling infiu- 
 ence on the decision of the referee, it is not ma- 
 terial to inquire whether the fact so found 
 could not as well have been predicated upon 
 
44 
 
 APPEAL. 
 
 tliose proved. Ct. App., 1872, Matthews v. Coe, 
 49 N. Y. (4 Sick.) 57 ; Rev'g S. C, 56 Barb. 430. 
 
 183. The report of a referee, where an ac- 
 counting i,s orilererl for the information of the 
 court, in a case in whicli no issue is joined, has 
 tlie effect of a special verdict; and where ex- 
 ceptions are filed tliereto by tlie defendant, 
 which are overruled, the report confirmed and 
 judgment rendered, an appeal from sucli judg- 
 ment brings up the question whether the facts 
 reported are sufficient to sustain the judgment, 
 and upon a case witli exceptions, joined with 
 the report, errors of law on the part of the ref- 
 eree may be reviewed. Ct. App., 1874, Darling 
 V. Brewster, 65 N. Y. (10 Sick.) 667. 
 
 184. Even if the necessary effect of an order 
 of reference " to liear and determine the whole 
 issues of fact " in a cause, would be to make 
 the referee's report equivalent to a special ver- 
 dict, leaving to the court the determination of 
 questions of law simply, yet, where the evi- 
 dence accompanies the report and both parties 
 are heard thereon as well as upon the report, 
 such effect cannot be claimed for the order on 
 appeal. Ct. App , 1874, People ex rel. Green v. 
 Dutchess and Columbia R. R. Co., 58 N. Y. (13 
 Sick.) 152. 
 
 185. An action of partition, brought by an 
 heir-at-law out of possession, to contest the va- 
 lidity of a devise under which lands are held, 
 though specially authorized by statute (ch. 238, 
 Laws of 1853 ; 4 Edm. Stats. 503), has the in- 
 cidents and results simply of an ordinary action 
 of partition ; and a judgment therein can be re- 
 viewed only as prescribed by the Code. The 
 Court of Appeals, therefore, on appeal from an 
 affirmance by General Term, can review only 
 questions of law. Ct. App., 1874, Hewlett y. 
 
 Wood, 55 N. Y. (10 Sick.) 634. 
 
 186. QueatioiiB not raised belo-w. A mat- 
 ter or subject not presented for adjudication to 
 the subordinate court cannot be reviewed on ap- 
 peal, though it be the constitutionality or validity 
 of a legislative enactment. Com. App., 1872, De- 
 lancey v. Brett, 51 N. Y. (6 Sick.) 78. 
 
 187. Where in an action upon an insurance 
 policy, a question arising upon a condition 
 therein respecting the plaintiff's title to the 
 property was not raised, either in the pleadings 
 on the trial, or in the report of the referee, — 
 Held, that it could not be raised on appeal. Ct. 
 App., 1874, Redjield v. Holland Purchase Insur- 
 ance Co., 56 N. Y. (11 Sick.) 354. 
 
 188. A claim that affirmative relief granted a 
 defendant in an equitable action, should have 
 been subject to a demand for contribution from 
 him, if not raised by the pleadings or on the 
 trial, will not be considered on appeal. Ct. 
 App., 1874, Blake v. Buffalo Creek R. R. Co., 56 
 N. Y. (11 Sick.) 485. 
 
 189. An objection to evidence, taken on the 
 examination of a witness de bene esse, if not re- 
 newed at the trial, is not available on appeal. 
 Ct. App., 1873, Martin v. Silliman, 53 N. Y. (8 
 Sick.) 615. 
 
 190. An objection to evidence because of the 
 insufficiency of the answer, cannot be raised for 
 the first time on appeal. Ct. App., 1873, Mc- 
 KnigKt V. Devlin; 52 N. Y. (7 Sick.) 399. 
 
 191. An objection to evidence, as the declara- 
 tions of one of plaintiff's witnesses (any error 
 in receiving which in respect to competency, is 
 cured by the subsequent rulings of the court), 
 that such declarations would tend to impeach 
 such witness who denied ma]<ing them, must be 
 taken at the trial, or it will not be reviewed on 
 appeal. Ct. App., 1874, Water Commissioners of 
 
 Detroit V, Burr, 56 N. T. (11 Sick.) 665 ; Affi'g 
 S. C, 35 N. Y. Supr. (3 J. & Sp.) 522. 
 
 192. Where testimony, incompetent in itself, 
 is given in answer to a proper question, and not 
 objected to on the trial, and no request is made 
 to strike it out, it cannot be reviewed in the 
 Court of Appeals. Ct. App., 1872, Crippen v 
 Morss, 49 N. Y. (4 Sick.) 63. 
 
 193. A plaintiff who in his complaint and on 
 the trial, bases his right to recover solely upon 
 a cause of action assigned to him, must stand by 
 the theory of his complaint on appeal, and can- 
 not there claim to recover independently of the 
 assignment. Com. App., 1872, .ffome /n«. Co. v. 
 Western Transportation Co.,, 61 N. Y. (6 Sick.) 93. 
 
 194. When an action on a promissory note is 
 tried upon the assumption by both parties that 
 the plaintiff is a bona fide purchaser, the correct- 
 ness of such assumption cannot be disputed on 
 appeal. Ct. App., 1874, Wilson v. Roeke, 58 
 N. Y. (18 Sick.) 642. 
 
 195. Where, in an action by a subsequent 
 mortgagee of chattels to recover the property 
 from the first mortgagee, no question is made at 
 the trial as to both mortgages covering the 
 same property, the plaintiff cannot, upon appeal 
 from a judgment in favor of the defendant for 
 the whole of the property, raise the objection 
 that some items of property covered by his 
 mortgage were not included in that of defend- 
 ant. Ct. App., 1875, Campbell v. Birch, 60 N. Y. 
 (16 Sick.) 214. 
 
 196. A ground for nonsuit not urged upon 
 the motion in the court below, based upon 
 matters which were susceptible of proof and as 
 to which the requisite testimony might have 
 been produced had the objection been there 
 raised, will not be considered on appeal. Com. 
 App., 1873, Spooner v. Keeler, 51 N. Y. (6 Sick.) 
 527. 
 
 197. As to pleadings. Where a case is tried 
 without objection to the form Of the action or 
 the shape of the pleadings, those questions 
 cannot be raised on appeal. Cora. App., 1872, 
 Fitch V. Russell, 48 N. Y. (3 Sick.) 672. 
 
 198. Where evidence is received on the trial, 
 without objection, which is inadmissible under 
 or varies from the complaint, the objection 
 cannot be taken on appeal. Com. App., 1872, 
 Divoll V. Henken, 48 N. Y. (3 Sick.) 372. 
 
 199. The objection that facts proven were 
 not pleaded, and are therefore not available, 
 cannot be raised on appeal, if not taken below. 
 Ct. App., 1873, Vborhees v. Burchard, 65 N. Y. 
 (10 Sick.) 98. S. P. Williams v. People's F. Ins. 
 Co., 57 N. Y. (12 Sick.) 274. 
 
 200. Where, in an action of trespass against 
 several defendants, one only pleaded title while 
 the others answered a general denial, but on the 
 trial it appeared that the latter were acting 
 under the one who had pleaded title, and the 
 evidence of title was offered and received gen- 
 erally on behalf of all the defendants, without 
 objection, — Held, that it was too late on appeal 
 to attempt to discriminate between them. Ct. 
 App., 1874, Devyr v. Schaefer, 55 N. Y. (10 Sick.) 
 446. 
 
 201. Where a case was tried and decided upon 
 the evidence, without raising any question as to 
 its relevancy under the pleadings, the judgment 
 will not be reversed on the ground of the incom- 
 pleteness or imperfection of the pleadings. Ct. 
 App., 1874, Tmg v. Com. Warehouse Co., 58 N. 
 Y. (18 Sick.) 308. 
 
 202. Where the facts stated in the complaint 
 are all specifically admitted by the answer, 
 which sets up a special defense, and the atten- 
 
APPEAL. 
 
 45 
 
 Hon of the- court is not in any way called to any 
 defect or insufficiency in the complaint, it must 
 be assumed that the defendant conceded his 
 liability upon the facts stated, and the question 
 of the sufficiency thereof caijnot be raised on 
 appeal. Ct. App., 1874, Hqfheimer v. Campbell, 
 59 N. Y. (14 Sick.) 269; Aff'g S. C, 7 Lans. 167. 
 
 203. An objection that a second complaint, 
 made and served in pursuance of a special term 
 order granted upon motion, is not in aid of the 
 original complaint, and therefore not supple- 
 mental to it, comes too late upon appeal from the 
 judgment. The error, if any, is in granting the 
 order, and the remedy is an appeal from that. 
 Com. App., 1872, Wetmore v. Trusloio, 51 N. Y. 
 (6 Sick.) 838. 
 
 204. The statute of UmitationB, although 
 pleaded as a defense, will not be available on 
 appeal if the question was not raised at the trial, 
 and no claim was made or exception taken to it 
 below. Ct. App., 1876, Osgood v. Toole, 60 N. Y 
 (15 Sick.) 475. 
 
 206. Such a case is within the rule that an 
 objection which, if taken, might have been 
 obviated, cannot be urged on appeal ; the objec 
 tion of the statute, although it may be prima 
 facie good, not being conclusive, as there is a 
 possible answer to it. lb. 
 
 206. Reference, propriety of. A finding 
 below, made upon a motion for a reference, that 
 the action involves tlie examination of a long 
 account, will not be reviewed by the Court of 
 Appeals, if the facts will warrant such a finding. 
 Ct. App., 1873, Welsh v. Darragh, 52 N.Y. (7 Sick.) 
 690. S. P., Kain v. Delano, 11 Abb. N. S. 29. 
 
 207. Refusal to find fact. A refusal of a judge 
 or referee, before whom an action is tried, to 
 find a material factiof which there is legal proof, 
 and where there is none to the contrary, and no 
 facts or circumstances showing its improbability, 
 is an error of law ; and if the request so to find 
 is made and the refusal to find properly excepted 
 to, a question is presented for- consideration in 
 the Court of Appeals. Com. App., 1872, Beck 
 ,. Sheldon, 48 N. Y. (3 Sick.) 365. 
 
 208. To entitle a defendant to any benefit from 
 a request to a referee to find that he is entitled to 
 a report and judgment in his favor, he should 
 call the attention of the referee to the facts 
 claimed by him to have been proved, or the 
 particular legal principle intended to be present- 
 ed for decision. Ct. App., 1871, Redmond v. 
 Liverpool, N. Y. and Phil. Steamship Co., 46 N. 
 Y. (1 Sick.) 578 ; Bev'g 56 Barb. 320. 
 
 209. Refusal to set aside verdict. Orders 
 of the General and Special Terms denying a 
 motion to set aside a verdict as against the 
 weight of evidence, are not reviewable on ap- 
 peal. Ct. App., 1871, Seltenreich v. Hiementz, 
 46 N. Y. (1 Sick.) 677. S. P., Doums v. N. Y. 
 Cent. R. R. Co., 56 N. Y. (11 Sick.) 664. 
 
 210. Refusal to submit question of fact. 
 Where, under section 261 of the Code, the court 
 instructs a jury to find upon particular ques- 
 tions of fact, the questions to be submitted, and 
 their form, are discretionary with the court and 
 a refusal to submit other or different questions 
 will not be reviewed on appeal. Ct. App., 1873, 
 Hackford v. New York Central ^ Hudson R, R. R. 
 Co., 53 N. Y. (8 Sick.) 654. 
 
 211. Rejection of evidence after case 
 closed.. The discretion of a court to receive or 
 reject evidence offered during the summing up 
 of counsel, is not arbitrary but judicial, and an 
 abuse of such discretion is subject to review on 
 appeal. Com. App., 1873, Meyer v. CuUen, 54 
 N. Y. (9 Sick.) 392. 
 
 212. Regularity. The objection that the 
 appeal in the Supreme Court was not heard in 
 the proper district, or by tlie General Term 
 which should have heard it, is one to tlie regu- 
 larity of the proceedings in tlie court below, and 
 cannot properly be raised in the Court of Ap- 
 peals. Ct. App. 1870, Birdsall v. Birdsall, 41 
 How. 389. 
 
 213. Right of relator to certiorari. On 
 appeal from a judgment rendered on certiorari, 
 the question of the relator's right to sue out the 
 writ will not be entertained. Ct. App., 1873, 
 People ex rel. Sheridan v. Andrews, 52 N. Y. (7 
 Sick.) 445. 
 
 214. Right to jury trial. When a jury trial 
 is asked simply on the ground that the case 
 involves questions of fact, and is refused, that is 
 not sufficient to raise the question of the right 
 to such a trial on appeal. Com. App., 1872, 
 AfcKeon V. See, 51 N. Y. 300 ; Ilev'g 4 Rob. 449. 
 
 215. Waiver of appeal. The question 
 whether the appellant had waived his appeal to 
 tlie General Term by acts dehors the record, can 
 be brought to the attention of the court only by 
 affidavits and motion to dismiss the appeal, or 
 for relief against it; and sucn application must 
 be made and decided in the Supreme Court and 
 not in the Court of Appeals. Ct. App., 1870, 
 Birdsall v. Birdsall, 41 How. 389. 
 
 216. Where a justice of the Supreme Court 
 who made an order at Special Term, sat at Gen- 
 eral Term upon appeal therefrom, and the ques- 
 tion was raised there whether the appellant had 
 waived his appeal, this court will assume that 
 the General Term only entertained and passed 
 upon that question, it being the only one which 
 the court, so constituted, were authorized to 
 determine, and it will not consider the merits of 
 the Special Term order. Ct. App., 1871, Pisior v. 
 Brundrett, 42 How. 5 ; S. C, sub nom, Pistar v. 
 Hatfield, 46 N. Y. (1 Sick.) 249. 
 
 7. Decision on appeal. 
 
 217. Erroneous charge. When a legai prop- 
 osition is submitted, by requests to charge in a 
 variety of forms with slight variations of lan- 
 guage, the appellate court will not seize upon 
 isolated portions of the charge for the purpose of 
 discovering error, but if, as a whole, it conveyed 
 to the jury the correct rule of law, the judgment 
 will not be reversed, although detached sen- 
 tences may. be erroneous. Ct. App., 1872, Cald- 
 well v. New Jersey Steamboat Co., 47 N. Y. (2 
 Sick.) 282 ; Aff'g S. C, 56 Barb. 425. S. P., Losee 
 V. Buchanan, 51 N. Y. (6 Sick.) 476. 
 
 218. If the court misapprehends a question 
 put to him by the jury, or gives them Tan answer 
 which is not responsive, that cannot be con- 
 strued as a refusal to charge upon the points 
 inquired of, and an exception thereto will not 
 be available for the purpose of reversing the 
 judgment. The attention of the court should be 
 called to the matter, and an opportunity given 
 to correct the misapprehension. Ct. App., 1875, 
 Boehlen v. Hardenberq, 60 If. Y. (15 Sick.) 8; 
 Aff'g S. C, 37 N. Y. Supr. (5 J. & Sp.) 110. 
 
 219. Where several distinct grounds of liabil- 
 ity on the part of a defendant are submitted to the 
 jury and the verdict is general, if the submission 
 of either of them was erroneous that will call 
 for a reversal, unless it shall appear that some 
 other one of them was so clearly established by 
 uncontroverted evidence as to have rendered it 
 the duty of the court to direct a verdict for the 
 plaintiffs. Ct. App., 1872, Baldwin y. Burrows, 
 47 N. Y. (2 Sick.) 199. 
 
46 
 
 APPEAL. 
 
 220. Error cured. If the error in refusing a 
 nonsuit for want of evidence was cured by evi- 
 dence subsequently supplied, or the error in the 
 cliarge was liarmless, the judgment will be af- 
 firmed on ajjpeal. Ct. App., 1875, EUwanger v. 
 i^isA,60N. Y. (15Sick.) 651. 
 
 221. Error as to power. An order of the 
 court below denying a motion for a bill of partic- 
 ulars, on tlie ground of want of power to grant 
 it, will be reversed on appeal, although the ap- 
 pellate court cannot control the discretion of tlie 
 court below in respect thereto. Allen, J., dis- 
 sents. Ct. App., 1874, Tiltm v. Beecher, 48 How. 
 176 ; S. C, 59 N. Y. (14 Sick.) 176. 
 
 222. Evidence, improper admission of. 
 Where a case turns upon a single point, which 
 is fairly submitted to the jury, the admission of 
 inconijietent evidence upon other points will be 
 no occasion for reversal. Ct. App., 1874, Downs v. 
 New York Central R. R. Co., 56 N. Y. (11 Sick.) 
 664. 
 
 223. The admission in evidence of an account 
 book, the items of which were first entered on a 
 slate and then transcribed each week into the 
 book, is error, for which a judgment will be re- 
 versed, if the other evidence on the subject as to 
 which it was introduced was not conclusive, and 
 it does not appear but that the incompetent evi- 
 dence had weight with the jury. Ct. App., 1874, 
 Smith V. Isaacs, 58 N. Y. (13 Sick.) 680. 
 
 224. The admission in evidence of a letter 
 showing the delivery by defendant to plaintiff of 
 twenty dollars, which was conceded to have no 
 connection with the payments claimed by him 
 to have been made on the instrument sued on, 
 and the refusal of his request to charge that it 
 was no evidence of payment on such instrument, 
 and the remark of the court to the jury that 
 here was twenty dollars to be accounted for, — 
 Held errors for which a judgment may be revers- 
 ed. Ct. App., 1875, Fisk v. Fisk, 60 N. Y. (16 
 Sick.) 631. 
 
 226. Any illegal evidence which would have 
 a tendency to excite the passions, arouse the 
 prejudices, awaken the sympathies, or warp or 
 influence the judgments of the jurors in anj- de- 
 gree, cannot be considered harmless, nor can the 
 error of its reception be disregarded on appeal. 
 Com. App., 1873, Anderson v. • Roine, Wat. and 
 Ogd. R. R. Co., 54 N. Y. (9 Sick.) 334. 
 
 226. The same is true of evidence which the 
 party objecting is obliged to call a witness to 
 explain or contradict. lb. 
 
 227. Exclusion of evidence. Where it is 
 sought to sustain a judgment, on tlie ground 
 that the facts established by the verdict render 
 an error in the exclusion of evidence immaterial, 
 it must appear that such is necessarily the effect 
 of the verdict ; or, in other words, tliat the jury 
 not only might but must have found as claimed. 
 Ct. App., 1870, Starbird v. Barrons, 43 N. Y. (4 
 Hand,) 200. 
 
 228. Finding contrary to evidence. If a 
 referee, upon the trial of a cause before him, 
 disregards undisputed evidence, and makes find- 
 ings and renders judgment which cannot be sus- 
 tained by the evidence, or by any just and legal 
 inference from it, the judgment will be reversed 
 and a new trial ordered. Ct. App., 1871, Ford- 
 ham T. Smith, 44 How. 472. 
 
 229. A judgment entered on report of a ref- 
 eree will not be reversed on appeal, merely be- 
 cause the referee's conclusions of law are not af- 
 firmatively supported by the facts found, but 
 only where facts are found which are in them- 
 selves inconsistent with such conclusions of law. 
 Com. App., 1871, Tomlinson v. Mayor, etc., of 
 
 New York, 44 N. Y. (5 Hand,) 601 ; Eev'g S. C, 
 23 How. 452. 
 
 230. A finding of the sura of $150 damages, 
 for the defective performance of a building con. 
 tract, and its allowance by way of recoupment, 
 — Held not sufficient to show that the finding of 
 substantial performance was unsustained by the 
 evidence. Ct. App., 1872, Johnson v. De Peyster, 
 50N. Y. (5 Sick.) 666. 
 
 231. sustained by evidence. Where there 
 
 is evidence to sustain the finding of the referee 
 that the causes of action set out in plaintiff's 
 complaint do not exist, such finding will not be 
 interfered with on appeal. Ct. App., 1873, 
 Graham v. Selover, 46 How. 107. 
 
 232. Former adjudication. The Court of 
 Appeals will not interfere with the decision of 
 the Commission of Appeals in the same case be- 
 tween the same parties. Ct. App., 1874, Terry 
 V. Wait, .56 N. Y. (11 Sick.) 91. 
 
 233. Order as to new trial. Where a mo- 
 tion for a new trial in an action tried by jury, 
 is made and denied at the trial term, and an ap- 
 peal is taken to the General Term which brings 
 before that term the question of the weight of 
 evidence as well as the questions of law arising 
 upon the exceptions, if the evidence is conflict- 
 ing, the order of the General Term granting a new 
 trial will not be reversed on appeal. Ct. App., 
 1875, Courtney v. Baker, 60 N. Y. (15 Sick.) 1. 
 
 234. Even though the motion for a new trial 
 was made on the minutes, at a terra subsequent 
 to that at which the trial was had, the Special 
 Term had power to grant it on the evidence, and 
 an appeal from the order denying it would bring 
 the question of fact before the General Term. In 
 such a case, the question would be one of regu- 
 larity, not of jurisdiction, ^nd that would be 
 waived by both parties appearing and proceed- 
 ing to argument without objection. lb. 
 
 236. It is only where a new trial is sought as 
 matter of favor or rests in the discretion of the 
 court, that conditions may be imposed. Where 
 it is sought as matter of right because of error 
 committed on the trial, the court on appeal has 
 no discretion, but, finding error, is bound to re- 
 verse the judgment and grant a new trial with- 
 out condition. Com. App., 1873, Anderson v. 
 Rome, Wat. and Ogd. R. R. Co., 54 N. Y. (9 Sick.) 
 834. 
 
 236. Judgment absolute. As errors of 
 law cannot be alleged on appeal from an order 
 granting or refusing a new trial, in a case tried 
 ^y jury, appeals from such orders will not here- 
 after be dismissed, but judgments absolute will 
 be rendered against the appellants, in pursuance 
 of their stipulations on appeal. Ct. App., 1872, 
 Arnold v. Robertson, 50 N. Y. (5 Sick.) 683. S. 
 P. .Jameson v. Brooklyn Skating Rink Asso., 54 
 N. Y. (9 Sick.) 673. 
 
 237. Where, upon an issue, a jury trial is a 
 matter of right, final judgment ought not to be 
 rendered by a court, on appeal, contrary to the 
 finding of a jury, unless it affirmatively appears, 
 as an inevitable necessity, that the party cannot 
 succeed on a new trial. But, in a proceeding of 
 an equitable nature, it is only necessary that the 
 appellate court should be satisfied that a final 
 judgment will not work injustice. Com. App., 
 1873, Muldoon v. Pitt, 64 N. Y. (9 Sick.) 269. 
 
 238. In an action to enforce a mechanic's lien 
 against the owner of premises in New York 
 city, for work done under a contract with the 
 tenant, a judgment for the plaintiff was re- 
 versed on appeal, and final judgment ordered 
 for the defendant. lb. 
 
 289. — affirming in part. Where, on the 
 
APPEAL. 
 
 47 
 
 trial of an action, embracing two distinct causes 
 of action, an erroneous instruction is given re- 
 specting one of tliera, and a general verdict 
 rendered for the defendant, tlie court cannot, 
 on appeal from the judgment, affirm in part 
 and reverse in part ; but must grant a new trial 
 as to both claims. Ct. App., 1874, Pollett v. 
 Lmg, 56 N. Y. (U Sick.) 200. 
 
 240. Where,>in an action against the directors 
 of a corporation individually, for fraud, verdict 
 was given and judgment rendered against all 
 upon one count of the complaint under which 
 one of the defendants, on tlie proofs shown, 
 was not liable, — Held, that, on appeal from such 
 judgment the appellate court could not reverse 
 as to him and affirm as to the other defendants, 
 although of the opinion that upon another 
 count upon which tlie jury did not, although 
 they might have passed, the plaintiff was enti- 
 tled to judgment against tliem. Ct. App., 1874, 
 Arthur v. Griswold, 56 N. Y. (10 Sick.) 400. 
 
 241. Modifying. Upon appeal in an action 
 to recover tlie possession of personal property, 
 where the verdict was for the amount of the 
 plaintiff's claim simply, and the judgment an 
 absolute one therefor, instead of being in the 
 alternative, such jadgment may be modified on 
 appeal, if tlie defendant desires it, by directing 
 a return of the property, with all the costs in 
 all the courts, or it may be affirmed with 
 costs. Com. App., 1874, First Nat. Bank of 
 Cincinnati v. Kelly, 57 N. Y. (12 Sick.) 84. 
 
 242. — directing reference. Where a fact 
 found by a referee upon a second reference is 
 based upon evidence offered by one party only, 
 the other party relying upon the decision of the 
 General Term which would have excluded all 
 evidence on that point, this court will not be 
 bound by such finding ; but will, on reversing 
 tlie judgment of tlie Gleneral Term, direct a 
 furtlier reference upon that fact. Ct. App., 1871, 
 Clarksm v. Skidmore, 46 N. Y. (1 Sick.) 297. 
 
 243. Restitution. Although the language of 
 section 369 of tlie Code, requiring an appellate 
 court, on reversal of a judgment, to order res- 
 titution of the moneys collected thereon, is im- 
 perative, yet whether restitution will in all 
 cases be ordered as a matter of strict right, 
 where the judgment of reversal is not final but 
 directs a new trial, for reasons which do not 
 conclude the respondent as to the merits, ouciy ? 
 Ct. App., 1874, Marvin v. Brewster Iron Mining 
 Co., 56 N. Y. (11 Sick.) 691. 
 
 244. Where the judgment of reversal grants 
 a new trial, and the appellant is insolvent, it has 
 power on a motion for restitution, to order the 
 withholding and safe-keeping of moneys col- 
 lected, pending the litigation. lb. 
 
 246. Reversal, effect of. Where a judg- 
 ment for damages and costs, e. g., one for sev- 
 eral penalties, with costs including interest on 
 the damages between the date of the decision 
 and the entry of the judgment is reversed as 
 to a part of the damages, it must be deemed 
 reversed as to the interest on that part tliereof. 
 Sup. Ct., 1872, Mann v. New York Central, etc., 
 R. R. Co., 12 Abb. N. S. 380. 
 
 8. Intendments ; supplying proofs and defects. 
 
 246. As to proceedings below. Where 
 an order of General Term modifying one made 
 at Special Term, recites the fact of an appeal 
 from the latter, it will be assumed that one was 
 taken, though it be omitted from the case. Com. 
 App., 1872, Strathers v. Pearce, 61 N. Y. (6 
 Siek.) 366. 
 
 247. In an action upon a promissory note by 
 an indorsee, claiming under an indorsement in 
 the payee's name, made by another as his agent, 
 wliere it appeared that sueli agent's authority 
 was in writing, and the same was not produced, 
 though called for, and, after a motion to strike 
 out the verbal testimony of his authority, a nan- 
 suit was ordered, the appellate court will pre- 
 sume in favor of the judgment that the motion 
 to strike out was granted, leaving no evidence 
 wliatever of plaintiff's title to the note. Ct. 
 App., 1870, Chesebrough v. Tompkins, 10 Abb. N. 
 S. 379 ; S C, 45 N. Y. (6 Hand,) 289. 
 
 248. Correctness of case. Where the case 
 as settled contains a statement of facts as found 
 by the referee, different from those contained 
 in his report, the former will be assumed to 
 be correct. Ct. App., 1875, Tompkins v. Lee, 59 
 N. Y. (14 Sick.) 662. 
 
 249. When exceptions are taken to findings of 
 fact, and a case is made for the purpose of re- 
 viewing those findings, it must be assumed that 
 all the evidence in support of the findings ex- 
 cepted to is inserted in the case. If tlie party 
 making up the case omits any such evidence, it 
 is the duty of the other party to cause it to be 
 inserted, if he deem it material, by amendment 
 Ct. App., 1874, Perkins v. Sill, 56 N. Y. (11 
 Sick.) 87. 
 
 250. Findings of fact. Omissions or de- 
 fects in a finding may be supplied by inference, 
 but not the entire want of a finding, in the ab- 
 sence of evidence of the necessary fact appear- 
 ing in the case. Ct. App., 1870, Walsh v. Powers, 
 43 N. Y. (4 Hand,) 23. 
 
 251. The objection cannot be raised on appeal 
 that the referee has failed to find on certain 
 issues presented by the pleadings; but it will be 
 presumed, in support of the judgment, that he 
 found in harmony with the conclusions of his 
 report upon all questions where the evidence is 
 capable of that construction. Ct. App., 1872, 
 Morgan v. Mulligan, 50 N. Y. (5 Sick.) 665. 
 
 252. This rule applies only when it appears 
 from the case that such additional findings 
 would have been warranted by the evidence ; 
 and it will not be invoked, even then, if it ap- 
 pears that competent evidence upon the facts 
 not found was offered by the defeated party 
 and rejected. Ct. App., 1871, Oberlander y 
 Spiers, 45 N. Y. (6 Hand,) 175. 
 
 253. Where the report of a referee contains 
 no express finding upon one of the issues pre- 
 sented by the pleadings, but a finding in favor 
 of the losing party on such point would be con- 
 trary to the weight of evidence, the court is 
 bound to assume, in support of the judgment, 
 that he found in accordance with the facts. Ct. 
 App., 1871, Richardson v. Carpenter, 46 N. Y. 
 (I Sick.) 660; Bev'g S. C, 2 Sweeny, 360. 
 
 254. Where the finding of a referee is imper- 
 fect in form, the defect will be supplied by in- 
 tendment in support of the judgment, provided 
 the case contains evidence which would have 
 warranted the referee in making the proper 
 finding. Ct. App., 1872, Erickson v. Quinn, 47 
 N. Y. (2 Sick.) 410. 
 
 265. If the construction of a referee's finding 
 of facts is doubtful, that will be adopted wliich 
 will sustain, rather than one requiring a rever- 
 sal of the judgment. Ct. App., 1871, Warner v. 
 Warren, 46 N. Y. (1 Sick.) 228. 
 
 256. When the finding of facts by a referee 
 does not support his conclusions of law, and it 
 appears from the case that a request to find upon 
 the material facts not found was refused, other- 
 wise than as found in the report, and that is 
 
48 
 
 APPEAL. 
 
 silent thereon, the Court of Appeals will not 
 presume in aid of tlie judgment that tliere was 
 a finding not expressed in terms. Ct. App., 1871, 
 Meyer v. Amidon, 45 N. Y. (6 Hand,) 169. 
 
 267. A special verdict does not stand on 
 the same footing with the findings of a court or 
 referee, and defects in the facts found by it will 
 not be supplied by intendment ; nor will a gen- 
 eral verdict, directed by the court upon the 
 strength of tlie special findhigs, add to their 
 force or effect. Ct. App., 1872, People v. Williams- 
 burgh Turnpike and B. Co., 47 N. Y. (2 Sick.) 
 586. 
 
 258. Grounds of decision. Where a motion 
 for judgment upon defendant's counterclaim, for 
 want of a reply, is denied in toto, witliout any 
 objection being made of want of proof of dam- 
 ages, it will be presumed on appeal tl)at the de- 
 cision was placed upon the ground that the an- 
 swer did not constitute a counterclaim. Ct. 
 App., 1873, ZsAam V. Dauidson, 52 N. Y. (7 Sick.) 
 237. 
 
 259. Where the order of the Supreme Court 
 reversing a judgment on report of a referee does 
 not state that it was upon questions of fact, it 
 must be assumed that it was for error of law, 
 and if no such error appears the order will be 
 reversed. Com. App., 1873, Wallace v. Drew, 54 
 N. Y. (9 Sick.) 678 ; Kev'g S. C, 59 Barb. 418. 
 
 260. Manner of trial. Where tlie caption to 
 the findings of a judge, before whom trial was 
 had, were as follows : " At a Special Term of 
 the Supreme Court for motions and cliamber 
 business, held at chambers, at the City Hall," 
 etc., and the question was first raised on ap- 
 peal, — Held, that it would be presumed that the 
 cause was tried at a regular court for the liear- 
 ing of all special term business, held at the prop- 
 er place. Com. App., 1871, Fisher v. Hepburn, 
 48 N. Y. (3 Sick.) 41. 
 
 9. Dismissal. 
 
 261. Appeal on questions of fact. Where 
 questions of fact were legitimately before the 
 General Term, and the case does not negative 
 any inference that the judgment was reversed 
 thereon, an appeal from an order granting a new 
 trial in a case tried by a jury will be dismissed. 
 Ct. App., 1871, Wright v. Hunter, 46 N. Y. (1 
 Sick.) 409. S. P., Sands v. Crooke, id., 564; 
 Dickson v. Broadway and Seventh Ave. R. R. 
 Co., 47 id., 507. 
 
 262. Sections 268 and 272 of the Code, which 
 provide that a judgment shall not be deemed to 
 have been reversed on questions of fact, unless 
 so stated in the order of reversal, apply only to 
 cases tried by the court or a referee, and not to 
 those tried by a jury. lb. 
 
 263. The question whether or not an order 
 granting a new trial, in a case tried by a jury, 
 was based upon questions of law or of fact, must 
 be determined from the record, and not by the 
 opinion of tlie court below. Com. App., 1872, 
 Downing v. Kelly, 48 N. Y. (3 Sick.) 438. 
 
 264. Order involving discretion. Upon 
 appeal from an order which may have been mat- 
 ter of discretion, the onus is on tlie appellant to 
 show that it was granted upon a ground which 
 did not authorize the court to exercise any dis- 
 cretion in its decision ; otherwise, the appeal 
 will be dismissed. Ct. App,, 1872, Cushman v. 
 Brundretl, 50 N. Y. (5 Sick.) 296. 
 
 265. Order for ne'W trial. On appeal from 
 an order granting a new trial in a case tried by 
 a jury, it is too Iate,af ter the lapse of six years 
 from the date of the order, for the appellant to 
 
 ask that his appeal be dismissed and that he be 
 relieved from the consequences of his stipula- 
 tion. Com. App., 1873, Post v. Hathorn, 64 N. 
 Y. (9 Sick.) 147. 
 
 266. Several appeals. Wliere several ap- 
 peals to the General Term from the same judg- 
 ment are pending at one time, it is doubtless 
 irregular to enter judgment in one and allow an 
 appeal to the Court of Appeals bfefore the others 
 are determined ; but tlie remedy of tlie respond- 
 ent in such case is by motion to vacate the 
 judgment, and he cannot, on appeal, raise the 
 objection by motion to dismiss. Com. App., 
 1873, Muldoon v. Pitt, 54 N. Y. (9 Sick.) 269. 
 
 267. Non-service of case. An appellant 
 failing to serve a copy of the case upon his ad- 
 versary, cannot excuse his default in that par- 
 ticular by reason of his failure to comply with 
 anotlier rule of court, requiring him to cause a 
 proper return to be made and filed ; but his ap- 
 peal will be dismissed on motion. Ct. App., 1871, 
 Sagev. Fo/ienmj, 46 N. Y. (1 Sick.) 448. 
 
 268. Judgment satisfied. A motion to dis- 
 miss an appeal, made by appellant on affidavit 
 that the plaintiff had released the claim and ac- 
 knowledged satisfaction of the judgment below, 
 being resisted by plaintiff's attorney who 
 claimed a lien for his costs, was granted on 
 payment of costs to the time of motion, 
 and ten dollars costs of opposing, it ap- 
 pearing that there were no grounds for appeal 
 and that the plaintiff was in extreme poverty 
 and almost an imbecile. Ct. App., 1872, Debbe 
 V. Debbe, 50 N. Y. (5 Sick.) 695. 
 
 10. Rehearing. 
 
 269. When granted. Motions for re-argu- 
 ment of cases heard and decided must be 
 founded on papers clearly showing either, that 
 some question decisive of the case, and duly 
 submitted by counsel, has been overlooked by 
 the court, or that the decision is in conflict with 
 an- express statute or with a controlling decision, 
 either overlooked by the court, or to which its 
 attention was not drawn through the neglect or 
 inadvertence of counsel. Ct. App., 1874, Marine 
 Nat. Bk. f. National City Bk., 59 N. Y. (14 
 Sick.) 67. 
 
 270. The Court of Appeals cannot grant a re- 
 argument after its remittitur has been filed in 
 the court below and the usual order has been 
 entered thereon, unless that court first vacates 
 such filing and order and rehirns the case. Ct. 
 App., 1873, Wilmerdings v. Fowler, 15 Abb. N. S. 
 86. 
 
 271. After a remittitur has gone down from 
 the Commission of Appeals with directions for 
 a new trial, a rehearing will not be granted on 
 tlie ground tliat the decision is in conflict with 
 a decision of the Court of Appeals, for the rea 
 son that either party if dissatisfied with tlie 
 result of the new trial, can take the case to the 
 Court of Appeals, and thus have the disputed 
 question finally settled. Com. App., 1873, Me- 
 chanics and Traders Bank of Jersey City v. 
 Dakin, 54 N. Y. (9 Sick.) 681. 
 
 11. Remittitur ; Judgment and costs. 
 
 272. Judgment on. Where the Court of 
 of Appeals renders judgment absolute for the 
 appellant for a part only of the relief demanded, 
 without costs to either party, such judgment 
 disposes of all costs which were previously de- 
 pendent on the event of the action, and not 
 merely of costs of the appeal ; and the court 
 
APPEAL. 
 
 49 
 
 below, on receiving the remittitur, should render 
 judgment without costs. Ct. App., 1872, Patten 
 V. Stitt, 50 N. Y. (5 Sick.) 591 ; Rev'g S. C, 34 
 N. Y. Supr. (2 J. & Sp.) 346. 
 
 278. Where two cases were practieally con- 
 solidated below, and one judgment entered in 
 both, which was affirmed by a single judgment 
 at General Term, — S^ld, that, on appeal from the 
 Latter, only one judgment should be entered, 
 with a single bill of costs, and but one remitti- 
 tur sent below. Ct. App., 1871, Brock v. Pier- 
 son, 46 N. Y. ( 1 Sick.) 690. 
 
 2T4. Stay of filing. The court has power 
 over its own remittitur, in whosesoever hands it 
 may be, before it is actually and regularly filed 
 in the court below, and either of the judges can 
 stav such filing. Ct. App., 1873, Cushman v. 
 Hadfield, 15 Abb. N. S. 109 ; S. C, 52 N. Y. (7 
 Sick.) 653. 
 
 275. The service of such stay upon the clerk 
 of the court below immediately after the remit- 
 titur is delivered to him, and before he has in- 
 dorsed a filing thereon is sufficient to retain the 
 jurisdiction in the appellate court. Rule 16, 
 requiring the service of papers and notice of 
 motion, does not apply to such a stay of the 
 filing of a remittitur, lb. 
 
 276. Costs. The statute gives full costs, 
 where costs are allowed by the court, on appeals 
 from orders to the Court of Appeals . Ct. App., 
 1873, Broum v. Leigh, 52 N. Y. (7 Sick.) 78. 
 
 277. The court on appeal in an action at law, 
 has a discretion with reference to costs, only 
 when the judgment is affirmed in part and re- 
 versed in part, or where a new trial is granted ; 
 and the omission of the words, " with costs," 
 from the judgment cannot affect the right of 
 the prevailing party to tax them. Ct. App., 
 1872, Ayers v. Western R. E. Corporation, 49 N. 
 Y. (4 Sick.) 660. 
 
 278. The Court of Appeals, since its organiza- 
 tion in July, 1870, under the 6tli article of the 
 new constitution, has made no assignment of 
 terms, but in theory and practice it holds but 
 one term per year, and but one term fee for each 
 calendar year can be allowed. N. Y. Supr. 
 Ct., Sp. T., 1872, Palmer v. DeWiit, 42 How. 
 466; see S. C, 7 Rob. 530; 36 How. 222; 40 
 id., 293 ; 2 Sweeny, 530 ; Aff'd, 47 N. Y. (2 Sick.) 
 582. 
 
 279. A case in which no damages were 
 claimed, but the only relief asked and obtained 
 was a perpetual injunction against the publica- 
 tion of plaintifE's drama, is not one for an extra 
 allowance of costs. lb. 
 
 12. Practice in general. 
 
 280. Bill of exceptions. It is the duty of 
 the appellant to prepare the bill of exceptions, 
 and he should see to it that the points and excep- 
 tions upon which he relies are correctly stated. 
 Ct. App., 1874, Jewell v. Van Steenbtirg, 58 N. Y. 
 (13 Sick.) 85. 
 
 281. To render an exception to a finding of 
 fact available in the Court of Appeals, it must 
 appear that the case contains all the evidence 
 given in relation thereto. Ct. App., 1871, Gox 
 v. James, 45 N. Y. (6 Hand,) 557. 
 
 282. A judgment of the General Term upon a 
 verdict taken subject to its opinion, cannot be 
 reviewed in the Court of Appeals unless a state- 
 ment of the facts and the conclusions rf law is 
 filed with the judgment roll, as prescribed by 
 section 333 of the Code. Ct. App., 1875, Sein- 
 miller v. Skidmore, 59 N. Y. (14 Sick.) b'ei. 
 
 283. Stenographer's notes. The practice 
 
 4 
 
 of using transcripts of stenographer's minutes 
 of the trial, without correction or explanation, 
 in place of a case or exceptions prepared by 
 counsel and settled by the judge, strongly con- 
 demned. Ct. App., 1875, Sowland v. Woodruff, 
 60 N. Y. (15 Sick.) 73. 
 
 284. Disputed claim against estate. 
 Where a disputed claim against an estate is 
 referred, pursuant to the statute on that sub- 
 ject, and the report of the referee is confirmed 
 and judgment entered thereon in favor of the 
 claimant at the Special Term, from which an 
 appeal is taken, unless the case shows that the 
 appellant made a motion at the Special Term, 
 upon a case or otherwise, to set the report aside, 
 or for a new trial, or opposed the confirmation 
 of the report, there is nothing for an appellate 
 court to revise. Ct. App., 1875, Smith v. Velie, 
 60 N. Y. (15 Sick.) 106. 
 
 286. Findings, consideration of. On ap- 
 peal from a judgment founded upon the report 
 of a referee, the court will not, in the absence of 
 a request to the referee to find any facts in addi- 
 tion to those stated in his report, look into tlie 
 evidence to ascertain whether any facts were 
 proved which, if found, would have defeated or 
 limited the recovery. Ct. App., 1873, Fabbri v. 
 Kalbfleisch, 52 N. Y. (7 Sick.) 28 ; Afl'g S. C, 2 
 Sweeny, 252. 
 
 286. A general finding by a referee that a 
 purchaser of a note knew of no defense to it at 
 the time of the purchase, will be controlled by 
 a special finding of other facts, which, if true, 
 would sliow knowledge of a defense existing in 
 favor of one indorser. Ct. App., 1872, Phelps v. 
 Vischer, 51 N. Y. (5 Sick.) 69. 
 
 287. To sustain an exception to the refusal of 
 the court to find certain facts, it must be made 
 to appear, not only that evidence was given 
 proving those facts, but that there was no evi- 
 dence tending to a contrary conclusion. Ct. 
 App., 1874, Andrews v. Raymond, 68 N. Y. (13 
 Sick.) 682. 
 
 288. Other grounds. The respondent, on 
 appeal from an order of General Term granting 
 a new trial, has a right to show other ground 
 for sustaining such order than that upon which 
 it was put below ; and the Court of Appeals will 
 consider aU the points made by him at the trial 
 and renewed on appeal. Ct. App., 1873, Simar 
 V. Canaday, 53 N. Y. (8 Sick.) 298. 
 
 289. 'What papers may be read. On ap- 
 peal from a judgment foreclosing a mortgage of 
 leasehold interests described in general terms, 
 where the pleadings show what leases are in- 
 cluded in the mortgage, and the property covered 
 thereby and the term of years for which it is to 
 be held, the leases or the record of them may 
 properly be read on appeal, though not read 
 below. Com. App., 1874, Catlin v. Grissler, 57 
 N. Y. (12 Sick.) 363. 
 
 290. Questions raised below. In deter- 
 mining, on appeal, whether the question was 
 raised in the trial court, the pleadings are not 
 conclusive, where evidenoe upon whieli the point 
 is taken was received without objection, that it 
 was not within the issues ; but the question is 
 to be determined from the pleadings, the case 
 made, the findings, and tlie exceptions. Ct. App., 
 1874, McKechnie v. Ward, 58 N. Y. (13 Sick.) 
 541. 
 
 291. Right to open and close. On appeal 
 from a judgment, an exception to the refusal of 
 the court to allow the party holding the affirma- 
 tive of the issue to open and close at the trial 
 may be reviewed, and the judgment may be 
 reversed for that reason if the party was preju- 
 
50 
 
 APPEAL. 
 
 diced thereby. Ct. App., 1874, Millerdv. Thorn, 
 15 Abb. N. S. 371 ; S. G, 56 N. Y. (11 Sick.) 
 402. 
 
 292. Sending back for further findings. 
 A party wlio is aggrieved by the refusal of a 
 referee to pass upon specific questions of fact, 
 should apply to the court to send the case back 
 for further findings, and unless such application 
 is made no relief can be granted on appeal. Com. 
 App., 1873, Meacham v. Burke, 54 N. Y. (9 Sick.) 
 217. 
 
 293. An order at General Term affirming that 
 of the Special Term denying a motion to send the 
 cause back to the referee for further findings 
 will not be reviewed by the Court of Appeals 
 except on appeal from the judgment. Ct. App., 
 1873, Quincey v. Ymng, 53 N. Y. (8 Sick.) 504. 
 
 294. On such an appeal, if the court deter- 
 mines that the questions upon which the court 
 below refused to require the referee to pass 
 were material, and there was evidence on which 
 he might have found them for the appellants, it 
 should order the General Term to send the case 
 back for the requisite findings. lb. 
 
 295. Staying proceedings. Questions as to 
 the bad faith of parties to an appeal, or collusion 
 between them, cannot be tried under a writ of 
 prohibition issued at the instance of one not a 
 party to the action ; and therefore the pendency 
 of that proceeding constitutes no reason for 
 delaying the hearing of the appeal. Ct. App., 
 1875, Thomson v. Tracy, 60 N. Y. (15 Sick.) 31. 
 
 296. Where the question whether the defend- 
 ants are liable as executors, after a reversal of 
 the decree admitting the will to probate, was 
 raised in the action wherein the appeal was 
 taken, it must be decided on such appeal, and the 
 pendency of the writ of proliibition is no reason 
 fdr staying proceedings thereon. lb. 
 
 297. Where material questions of fact arise 
 upon a motion, and the evidence is conflicting, 
 the better course is to leave the parties to an 
 action, provided relief can be obtained in that 
 form, rather than decide them upon ex parte affi- 
 davits. Ct. App., 1874, Hill V. Hermans, 59 N. Y. 
 (14 Sick.) 396. 
 
 298. Thus, upon a motion to dismiss an appeal 
 on the ground that the original plaintiff had 
 agreed and stipulated for a dismissal of the 
 appeal, where the opposing affidavits tended to 
 show that such stipulation was obtained by 
 undue influence, and they were controverted by 
 other affidavits, the court ordered the proceed- 
 ings on the appeal to be stayed for a specified 
 time to enable the plaintiff to bring an action to 
 set aside the stipulation, and in case of their 
 failure to do so, that the action be dismissed. lb. 
 
 299. Where a motion made in the lifetime of 
 the original plaintiff was denied without preju- 
 dice to a new motion, and the plaintiff took no 
 steps to bring on the appeal during his lifetime, 
 but left the defendant in undisturbed possession 
 of the property in controversy, — Held, that the 
 neglect of the defendant to renew his motion 
 until two months after the substitution of plain- 
 tiff's administrators was not laches justifying a 
 refusal to entertain the motion. lb. 
 
 300. Substitution. The Court of Appeals 
 will not order a substitution of plaintiff and 
 plaintiff's attorneys, in an action pending therein 
 on appeal, merely because the party asking it 
 has been adjudged by the Court below to be 
 entitled to be substituted and to control the 
 action, when it appears that an appeal is pending 
 from such judgment. Ct. App., 1870, Greenville 
 
 Woolen Co. V. Ripley, 11 Abb. N. S. 87. 
 801. Variance in finding. In an action for 
 
 non-delivery of a portion of a cargo receipted 
 as " on board " a certain ship, where the proof 
 was that only part of it was actually shipped by 
 her, but that there was also a failure to deliver, — 
 Held, that, as the gravamen of the action was 
 the non-delivery, a variance between the referee's 
 finding that the cargo was " on board," and the 
 fact, was immaterial. Ct. App., 1872, Whitin v. 
 Pendegast, 50 N. Y. (5 Sick.) 674. 
 
 302. Weight of evidence. Upon appeal 
 from an order of the General. Term, reversing, 
 upon a question of fact, a judgment entered on 
 report of a referee, if it appears that the conclu- 
 sion of the referee is not against the weight of 
 evidence, that it might well have been either 
 way, or that the testimony is slight on which to 
 found a contrary conclusion, then the consider- 
 ation that he saw and heard the witnesses will 
 lead to a deference to his opinion. Ct. App., 1873, 
 Crane v. Baudouine, 55 N. Y. (10 Sick.) 256; 
 Rev'g S. C, 65 Barb. 260. 
 
 H. Appeals to General Tekm op Sdpkeme 
 
 COUKT. 
 
 1. When an appeal lies. 
 
 303. Judgment by default. A judgment 
 entered by default is not appealable ; the remedy 
 of the party, in such ease, being by application 
 to the court to open the default or set aside the 
 judgment. Com. App., 1873, Flake v. Van Wag- 
 enen, 54 N. Y. (9 Sick.) 25. 
 
 304. The amendment made in 1851, to section 
 348 of the Code, which provides for an appeal to 
 the General Term from the judgment of a single 
 judge " in all cases," has reference solely to cases 
 tried and decided by single judges after hearing 
 the parties, and where judgment has been direct- 
 ed after examining the issues of law or fact, and 
 does not include a judgment to which a party 
 has impliedly assented by default. lb. 
 
 305 — not final. A judgment for a separate 
 maintenance which provides for a reference as 
 to the amount is not final, and is not the proper 
 subject of an appeal, but it may be reviewed by 
 the General Term by way of a motion for a new 
 trial, under section 268 of the Code. Sup. Ct., 
 1875, Douglas v. Douglas^ 5 Hun, 140. 
 
 306. It seems that where an appeal is taken 
 in such a case, the court, instead of dismissing 
 it, may allow the appellant to withdraw his notice 
 of appeal, and serve in its place a notice of motio;a 
 for a new trial on proper terms. lb. 
 
 307. — for inadequate damages. A party 
 in whose favor a judgment was rendered cannot 
 sustain an appeal therefrom on the ground of 
 inadequate damages, unless he first makes a 
 motion-for a new trial, either on the minutes of 
 the judge, or at the Special Term. Sup. Ct., 1875, 
 Carpenter v. Beare, 4 Hun, 509. 
 
 808. — ofBrooklyn City Court. No appeal 
 will lie from the City Court of Brooklyn, to the 
 Supreme Court, except from a final judgment. 
 On such appeal, the court may review an inter- 
 mediate order involving the merits and neces- 
 sarily affecting the judgment; but an order 
 setting aside a judgment and granting a new 
 trial is itself unappealable. Ct. App., 1871, Baker 
 v. Remington, 45 N. Y. (6 Hand,) 323. ' 
 
 309. The amendment to section 344 of the Code, 
 made in 1860, authorizing appeals from orders 
 aSecting substantial rights made by a County 
 Court or county judge, does not apply to City 
 Courts. lb. 
 
 810. Order fixing alimony. The General 
 Term may not only entertain an appeal from an 
 
APPEAL. 
 
 51 
 
 order in an action for divorce fixing the amount 
 of alimony, but may order a reference to ascertain 
 the suitable amount to be allowed. Sup. Ct., 
 
 1871, Galinger v. Galinger, 4 Lans 473 ; S. C, 61 
 Barb. 31. 
 
 811. ^ denying amendment. An order of 
 the Special' Term, denying plaintiff's motion to 
 amend his complaint, may be reviewed on appeal 
 to the General Term. Sup. Ct., 1874, Gowdy v. 
 PouUain, 2 Hun, 218. 
 
 312. — at chambers. An appeal will not 
 lie to the General Term from an order, granted 
 by a judge at Chambers, appointing a receiver, 
 unless such order has been entered in the de- 
 partment where the appeal is taken. Sup. Ct., 
 1874, Clinch v. South Side R. R. Co. of L. I., 
 2 Hun, 154. 
 
 313. — by default. An appeal does not lie 
 from an order striking out defendant's answer or 
 froin the Judgment therefrom when entered by 
 default. N. Y. C. P., 1870, Baker r. Stephens, 
 10 Abb. N. S. 1. 
 
 314. — denying judgment for frivolous- 
 ness. An order of the Special Term, denying a 
 motion for judgment, on the ground that a de- 
 murrer is frivolous^ is not appealable. Ct. App., 
 
 1872, Dabney v. Greeley, 12 Abb. N. S. 191. 
 
 315. — directing verdict. Where the court 
 orders the exceptions to be heard first at the 
 General Term, and suspends judgment in the 
 meantime, no appeal will lie from the mere ver- 
 bal direction of a verdict. N. Y. Supr. Ct., 1874, 
 Atwood V. Lynch, 87 N. Y. Supr. (5 J. & Sp.) 5. 
 
 816. Discretionary orders. Even where a 
 motion is addressed to the discretion of the jus- 
 tice at the Special Term, an appeal will lie from 
 his decision to the General Term, which not only 
 may but ought to correct any error made by 
 him. Sup. Ct., 1874, Jeffras v. McKillop ^ 
 Sprague Co., 48 How. 122 ; S. C, 2 Hun, 351. 
 
 317. Any discretionary order made at Special 
 Term is appealable to the General Term of tlie 
 same court. N. Y. Supr. Ct., 1872, Central Nut. 
 Bank ofN. Y. V. aark, 34 N. Y. Supr. (2 J. & 
 Sp.)487. 
 
 318. An order granting a party an inspection 
 and copy of books, papers and documents in the 
 possession or under the control of the adverse 
 party, is, therefore, appealable. lb. 
 
 319. A decision made on a motion, which is 
 left, either by law or by consent of parties, to 
 the discretion of the court, is not appealable 
 unless the discretion was abused. N. Y. Supr. 
 Ct., 1873, Whittaker v. StebUns, 36 N. Y. Supr. 
 (4 J. & Sp.) 192. 
 
 320. An order requiring a trustee to give se- 
 curity for the performknce of his trust, made on 
 the hearing of a motion at which he had ex- 
 pressed his willingness to give sucli security as 
 the court might deem necessary, cannot, there- 
 fore, be reviewed on appeal. lb; 
 
 321. An order allowing a defendant to amend, 
 his answer, is wholly discretionary, and does not 
 involve the merits of thff action, or afifect a sub-: 
 stantial right, and is, therefore, not appealable. 
 Per MONELL, C. J., N. Y. Supr. Ct., 1875, Scjireyer 
 V. Mayor, etc. of New York, 39 N. Y. Supr. (7 J. 
 & Sp.) 277. S. P. Smith v.Bodine, 1 Hun, 309. 
 
 322. An order Of the Spepial Term, denying a 
 motion to strike out certain allegations of the 
 complaint as irrevelant, does not involve the 
 merits nor affect a substantial right, but Is entire- 
 ly within the discretion of the judge, and there- 
 fore, is not appealable. N. Y. C. P., 181V, Hughes 
 V. Mercantile Mut. Ins. Co., 41 How. 253 ; S. C, 
 10 Abb. N. S. 37. S. P. Field v. Stewart, 41 
 How. 9S. 
 
 823. An order denying a motion that plain- 
 tiffs be required to make tlieir complaint more 
 definite and certain relates to mere matters of 
 pleading, and is discretionary, and not appeal- 
 able. N. Y. Supr. Ct., 1874, Dudiey v. Grissler, 
 37 N. Y. Supr. (5 J. & Sp.) 412. S. P. Field v. 
 Stewart, 41 How. 95. 
 
 324 An order granting or refusing a jury 
 trial of issues of fact in an equitable action 
 being discretionary, an appeal does not lie there- 
 from to the General Term. Buff. Supr. Ct., 1872, 
 Paul V. Parshall, 14 Abb. N. S. 138. 
 
 325. An order opening a default taken and 
 allowing a trial, is a discretionary matter with 
 the justice granting it, does not affect a substan- 
 tial right, and is not ordinarily reviewable on 
 appeal. Sup. Ct., 1871, Ramsay v. Gould, 4 Lans. 
 476. 
 
 826. An order giving time to make and serve 
 a case, after default, made upon application and 
 order to show cause, and on terms, is a discre- 
 tionary one and not appealable. Sup. Ct., 1873, 
 Kiersted v. Orange and Alexandria R. R. Co., 44 
 How. 379 ; S. C, again, 1 Hun, 151. 
 
 827. An order opening a judgment and allow- 
 ing the defendant to put in a supplemental an- 
 swer setting up his discharge in bankruptcy is 
 discretionary, and not appealable. Sup. Ct., 1874, 
 Hadley v. Boehm, 1 Hun, 304. 
 
 828. An order of the Special Term, upon a mo- 
 tion to set aside a sale on foreclosure, is not ap- 
 pealable, except in a case of the abuse of dis- 
 cretion. Sup. Ct., 1874, White v. Coulter, 1 Hun, 
 357. 
 
 329. An order staying proceedings is not ap- 
 pealable, being discretionary ; especially when 
 the motion is granted upon terms. The terms 
 can never be reviewed. Sup. Ct., 1872, Schmidt 
 V. Levy, 61 Barb. 496. 
 
 330. An order transferring an' action from the 
 Superior Court to the Marine Court, under the 
 authority attempted to be conferred by section 
 4, chapter 545, Laws of 1874, it seems, is appeal- 
 able. Ct. App., 1875 , Alexander v. Bennett, 60 N. 
 Y. (15 Sick.) 204 ; Rev'g S. C, 88 N. Y. Supr. 
 (6 J. & Sp.) 492. 
 
 331. Disregard of agreement as to pro- 
 ceedings. An error or misunderstanding on 
 tlie part of the judge at Special Term, leading 
 him to disregard an agreement between himself 
 and the counsel as to the conduct of the trial, 
 should be corrected by motion for a rehearing, 
 made at such term on affidavits clearly pointing 
 out the mistake or oversight. It cannot be 
 reviewed on appeal. Sup. Ct, 1872, Herbert v. 
 Smith, 6 Lans. 498. 
 
 332. Exoneration of bail. An order allow- 
 ing bail to surrender their principal in their 
 exoneration is appealable. N. Y. Supr. Ct., 
 1870, Hall V. Emmons, 2 Sweeny, 396. 
 
 333. Final order. An order made upon the 
 renewal of a motion, by leave of court granted 
 upon additional facts shown after the denial of 
 the first motion, is to be treated as the final 
 order of the court, and that alone is appealable. 
 Sup. Ct., 1875, Robbins v. Ferris, 5 Hun, 286. 
 
 884. Interlocutory order. A judgment 
 merges an interlocutory order, sucli as one 
 striking out an answer as frivolous, and an 
 appeal therefrom is improper after the entry of 
 judgment ; but the party desiring to review it 
 should appeal from the judgment. Sup. Ct., 
 1875, Parker v. Warth, 5 Hun, 417. 
 
 385. The trial of special issues in an equity 
 action is not the trial of a cause, within the 
 meaning of section 264 of the Code, and an order 
 of the judge at circuit, refusing a motion for a 
 
52 
 
 APPEAL. 
 
 new trial made on his minutes, is not appealable 
 to the General Term ; but the defeated party 
 must wait until after a complete trial of the 
 action at Special Term, or, at least, until after a 
 motion for a new trial has been heard at Special 
 Term. Sup. Ct., 1872, Hatch v. Peugnet, 64 
 Barb. 189. 
 
 336. An order at Special Term sustaining ex- 
 ceptions to a referee's report upon a question of 
 fact and reversing tlie referee's decision, cannot 
 be talien by appeal directly to the General Term, 
 but judgment must first be entered, and an 
 appeal taken from that. Sup. Ct., 1874, Hemp- 
 hill V. Trull, 46 How. 384. 
 
 337. An appeal does not lie from an order 
 overruling a demurrer as frivolous, but when a 
 judgment has been actually entered, the appeal 
 must be from such judgment. N. Y. Supr. Ct., 
 Sp. T., 1875, Whitman v. Nicol, 49 How. 88. 
 
 338. Order for new trial. An order of the 
 Special Term granting a new trial, is appealable 
 to the General Term. Sup. Ct., 1874, People ex 
 rel. Stemmler v. McGuire, 2 Hun, 268 ; Afi'd 60 
 N. T. (15 Sick.) 640. 
 
 339. — of reference. The question of the 
 power of the court is always involved in a 
 motion for a compulsory reference, and an 
 appeal will lie from an order made on such 
 motion. N. Y. Supr. Ct, 1874, Koss v. Combes, 
 37 N. Y. Supr. (5 J. & Sp.) 289. 
 
 840. Refusal to find. An appeal will not 
 lie to the General Term from the refusal of a 
 referee to insert in his report findings of fact and 
 law prepared by the defeated party. The prop- 
 er remedy is by motion to compel him to do 
 BO. Sup. Ct., 1872, Lejler v. Field, 42 How. 420 ; 
 AfE'd S. C, 47 N. Y. (2 Sick.) 407. 
 
 341. Refusal of leave to sue. An order re- 
 fusing leave to claimants of property which has 
 been sold by a receiver, to prosecute the re- 
 ceiver therefor, is appealable. Sup. Ct., 1873, 
 Miller V. Loeb, 64 Barb. 454. 
 
 342. Orders affecting substantial right. 
 The test of the appealability of an order made 
 at the Special Term is, does it involve the merits 
 of the action or affect a substantial right. It is 
 immaterialwhether it is one within the discre- 
 tion of the court or not. N. Y. Supr. Ct. 1874, 
 Morehousev. Yeajcr, 38 N. Y. Supr. (6J.&Sp.) 50. 
 
 343. Motions generally in respect to pleadings 
 do not involve the merits or affect a substantial 
 right. An order denying a motion to strike out 
 certain parts of the complaint as irrelevant and 
 redundant is, therefore, not appealable. lb. 
 
 344. An order directing an answer to be made 
 more definite and certain does not involve the 
 merits nor afiect a substantial right, and cannot 
 be reviewed on appeal. N. Y. Supr. Ct., 1874, 
 Hanover Fire Ins. Co. v. I'omlinson, 37 N. Y. 
 Supr. (5 J. & Sp.) 221. 
 
 345. An order striking out a distinct defense 
 as irrelevant, does affect a substantial right and 
 is appealable. lb. 
 
 346. An order which affects a substantial 
 right, i. e., any positive, material and absolute 
 right, as distinguished from a right of a merely 
 formal or unessential nature, is appealable to 
 the General Term, even though it may be of a 
 discretionary character. Sup. Ct., 1874, Secu- 
 rity Bank o/N. Y. City v. Nat. Bank of the Com- 
 monwealth, 48 How. 135 ; S. C, 2 Hun, 287. 
 
 347. An order refusing to open a judgment 
 obtained by defaiilt, upon an application made 
 promptly after discovery of the default, on afl- 
 davits showing merits and a reasonable excuse 
 for the default, affects a substantial right and is 
 appealable. lb. 
 
 348. An order of the Special Term prescribing 
 the terms upon which a lease of certain real and 
 personal property was directed to be executed 
 by a receiver, affects a substantial right, within 
 the meaning of section 349 of the Code, and is 
 appealable to the General Term. Ct., App., 1870, 
 In matter of Duff, 41 How. 350 ; S. C, 10 Abb. 
 N. S. 416 ; 43 N. Y. (4 Hand,) 469. 
 
 349. The reasons for limiting the meaning of 
 the terms " substantial right " in section 11 of the 
 Coda to rights absolutely conferred by law, not 
 dependent upon the exercise of discretion or the 
 favor of the court, do not apply to appeals from 
 the Special to the General Terms, provided for 
 by section 349. lb. 
 
 350. The latter appeals were designed not 
 only for the redress of legal errors occurring at 
 the Special Terms, Circuits, and before referees, 
 but also of errors of fact ; and, hence, a review 
 of the facts may be had before the General 
 Terms, upon appeals from judgments or orders 
 of the former courts. They were also designed 
 to redress wrongs arising from an erroneous, ar- 
 bitrary or otherwise improper exercise of dis- 
 cretion by the former. lb. 
 
 351. An order denying a motion for a commis- 
 sion to take the testimony of a foreign witness is 
 appealable, because it affects a substantial right; 
 but an order granting such a commission cannot 
 prejudicially affect such right, and is not appeal- 
 able. Sup. Ct., Wallace v. American Linen Thread 
 Co., 46 How. 403. 
 
 352. An order granting a commission to ex- 
 amine foreign witnesses and staying proceedings 
 in the mean time, although in a sense discretion- 
 ary, affects a substantial right, and is appealable. 
 N. Y Supr. Ct., 1872, Rathbun v. Ingersoll, 34 N. 
 Y. Supr. (2 J. & Sp.) 211. 
 
 353. An order of the Special Term making 
 the waiver of a material issue a condition of 
 opening a default and inquest taken at the trial 
 term, is unauthorized, and affects a substantial 
 right, and is appealable. N. Y. Supr. Ct, 1873, 
 Horn V. Brennan, 46 How. 479. 
 
 354. An order denying a motion that defend- 
 ant be required to pay over to plaintiff the 
 amount which he admits to be due and offers 
 judgment for, affects a substantial right, and an 
 appeal lies therefrom. N. Y. Supr. Ct., 1875, 
 Wiseman v. Remington Sewing Mach. Co., 39 N. 
 Y. Supr. (7 J. & Sp.) 314. 
 
 855. An order requiring a party to make his 
 pleading more definite and certain neither in- 
 volves the merits of the action, nor affects a 
 substantial right, and is not appealable. N. Y. 
 Supr. Ct 1873, Geis v. Loew, 15^ Abb. K S. 94; 
 S. C, 36 N. Y. Supr. (4 J. & Sp.) 190. 
 
 356. An order denying a motion to appoint a 
 receiver in proceedings supplementary to execu- 
 tion, though discretionary, affects a substantial 
 right, and is appealable to and reviewable by the 
 OeneralTerm. N. Y. Supr. Ct 1871, DoZkid v. 
 Taylor, 33 N. Y. Supr. (1 J. & Sp.) 496. 
 
 357. An ordersetting aside a judgment in fore- 
 closure and a sale under it, and also granting 
 the defendant in that suit all the relief which he 
 could have obtained in an equitable action to re- 
 deem, after the lapse of time sujBicient to bar 
 such an action, affects substantial rights and is 
 appealable. Supi. Ct., 1874, Depew v. Dewey, 46 
 How. 441; 
 
 358. It is very doubtful whether an appeal 
 will lie from the decision of the Special to the 
 General Term denying a motion to set aside the 
 summons and complaint for a discrepancy be- 
 tween them. Buff. Supr. Ct, 1862, Abboit v. N. 
 Y. Central, etc., R. R. Co., 12 Abb. N. S. 465. 
 
APPEAL. 
 
 53 
 
 869. An order denying an application to re- 
 moTe a cause to the United States Court, under 
 .the twelfth section of the act to establish U. S. 
 Courts, is an order affecting a substantial right, 
 and is appealable to the General Term. N. Y. 
 Supr. Gt., 1870, Z)e Camp v. iVeto Jersey Mut. Life 
 Ins. Co., 2 Sweeny, 481. 
 
 360. An order transferring an action to the 
 Marine Court, in pursuance of ch. 299, Laws 
 1872, and chapter 645, Laws of 1874, is appeal- 
 able to the General Term, both as affecting a 
 substantial right, and as involving the consti- 
 tutionality of those acts. Sup. Ct., 1875, DeHart 
 V. Hatch, 8 Hun, 876. 
 
 861. Order changing venue. It is very 
 doubtful whether an order changing the place 
 of trial of a cause for the convenience of wit- 
 nesses is appealable. It cannot be said to af- 
 fect a substantial right. Sup. Ct. Sp. T., 1870, 
 Fisk V. Albany and Susg.R. R. Co., 41 How. 365. 
 
 862. Order in special proceedings. An 
 order made at Special Term, setting aside a re- 
 port of commissioners awarding damages for 
 lands taken for a railroad, is an order in special 
 proceedings, and an appeal lies therefrom to the 
 General Term. Sup. Ct., 1865, Albany and Susg. 
 R. R. Co. V. Dayton, 10 Abb. N. S. 182. 
 
 868. An appeal wiU lie to the General Term 
 of the Supremp Court from an order made at 
 Special Term, confirming the report of commis- 
 sioners of estimate and assessment for land 
 taken for public parks in New York city. Sup. 
 Ct., 1871, In matter of Commissioners of Central 
 Park, etc., 4 Lana. 467 ; S.C, 61 Barb. "40. 
 
 364. The power of confirmation is by ch. 
 86, Laws of 1813, placed generally in the 
 Supreme Court, and not particularly in the Spe- 
 cial Term, and the proceeding on such appeal is 
 still in the Supreme Court. lb. 
 
 365. Upon such appeal the court may refer 
 the report back to the commissioners, with 
 directions to allow for land omitted, or for other 
 corrections according to principles of law laid 
 down by tlie court, but cannot direct the amount 
 to be allowed, unless in extraordinary cases. lb, 
 
 866. Under ch. 270, Laws of 1854, an ap- 
 peal will lie to the General Term of the Su- 
 preme Court from an order of the Special 
 Term, confirming the report of commissioners in 
 proceedings relative to the opening of streets in 
 the city of New York, under ch. 565, Laws 
 of 1865, but the decision of the General Term 
 thereon is final, and no appeal lies to the Court 
 of Appeals. Sup. Ct., 1875, In matter of Kings- 
 bridge Road, 4 Hun, 699. 
 
 2. Who may appeal. 
 
 867. New party. Where a judgment 
 against a sole defendant is set aside on motion 
 of the plaintiff, and an order made allowing him 
 to amend the summons and complaint by adding 
 another party as defendant, such new party is 
 not, under section 320 of the Code, entitled to 
 appeal from an order denying his motion to 
 vacate the order under wliich he was made de- 
 fendant, and set aside the service of summons 
 and complaint on him, because not aggrieved 
 thereby. He may, if he choose, plead that the 
 former judgment has extinguished the original 
 claim, and thus have that question adjudicated. 
 N.Y. Supr. Ct., 1872, Grant v. Hubbell, 34 N. Y. 
 Supr. (2 J. & Sp.) 224. 
 
 368. Not interested. A party to i fore- 
 closure action, who has parted with his interest 
 subsequent to the commencement of proceed- 
 ings but before decree entered, is not a "party 
 
 aggrieved " by such decree, within the meaning 
 of section 325 of the Code, and cannot- appeal 
 therefrom ; but he may join in an appeal taken 
 in behalf of his wife, also a party to the action, 
 who retains her inchoate right of dower. N. 
 Y. C. P., 1870, Kiefer v. Winkins, 3 Daly, 191. 
 
 869. Waiver by acceptance of costs. A 
 plaintiff who accepts the costs imposed on the 
 defendant as a condition of granting a motion 
 to amend his answer, thereby waives the right to 
 appeal from the order ; especially, where he 
 also accepts the amended answer, serves a reply, 
 and proceeds with the trial. N. Y. Supr. Ct., 
 1871, Taussig v. Hart, 83 N. Y. Supr. Ct. (1 J. & 
 Sp.) 157. 
 
 8. Time for appealing. 
 
 870. Ho-w limited. An -appeal to the 
 General Term from an order of reference must be 
 taken within thirty days after written notice of 
 the order ; otherwise it will be of no avail and 
 the appellate court cannot review the order. 
 N. Y. Supr. Ct. 1875, Porter v. Parmly, 38 N. Y., 
 Supr. (6 J. & Sp.J 490. 
 
 371. A party cannot proceed with a trial be- 
 fore a referee without thereby waiving his right 
 to appeal from the order of reference. lb. 
 
 372. The notice of appeal from the Special 
 to tlie General Term must be served on the clerk 
 of the court where the j adgment is entered, as 
 well as on the respondent, within thirty days 
 after notice of judgment. An admission of due 
 service on him made by the respondent's at- 
 torney after the expiration of that time, if a 
 waiver of the irregularity as to him, cannot 
 operate as a waiver of due service on the clerk. 
 Sup. Ct., 1874, Waring v. Senior, 48 How. 226. 
 
 373. The time for appealing from a decree in 
 a partition suit wliich awards costs, is not 
 limited by a notice of judgment served prior to 
 the taxation, and entry of the costs. Ct. App. 
 1875, Thurber v. Chambers, 60 N. Y. (15 Sick.) 29. 
 
 874. If the party recovering judgment treats 
 the case as one requiring notice of the entry of 
 judgment in order to limit his adversary's time 
 to appeal, and gives him such notice, he is con- 
 cluded thereby, and cannot object to a notice of 
 appeal, served within twenty days thereafter, 
 as not being in time. N. Y. C. P. Sp. T., 1872, 
 Elias V. Babcock, 12 Abb. N. S. 288. 
 
 375. Emending time. Although the court 
 has no power, either directly or indirectly, to 
 extend the time for perfecting an appeal, yet 
 the attorney of a party may, by virtue of his 
 general authority, after judgment, extend the 
 time by stipulation, or waive the objection that 
 notice of appeal was not served in time by 
 admitting due service. N. Y. C. P. Sp. T., 1871, 
 Hofenberth v. Muller, 12 Abb. N. S. 221. 
 
 876. A motion to vacate a judgment for irreg- 
 ularity in the entry thereof does not operate to 
 extend the time for appealing from it. The time 
 is fixed by statute, and cannot be extended by 
 the court?. N. Y. Supr. Ct., 1874, Bishop v. Em- 
 pire Trans. Co., 37 N. Y. Supr. (5 J. & Sp.) 17. 
 
 4. Security; stay of proceedings, 
 
 877. Undertaking by married women. 
 
 An undertaking executed by a married woman 
 in the precise language of the Code, binds 
 neither her nor her estate ; and the addition of 
 words declaring her intent to bind her separate 
 estate makes it an instrument different from 
 that prescribed by tlie Code, which the respond- 
 ent is not bound to accept. N. Y. Supr. Ct, 
 
54 
 
 APPEAL. 
 
 1874. Field v. Leavitt, 37 N. Y. Supr. (5 J. & 
 Sp.) 537. 
 
 378. Sureties when liable. The reversal 
 by the General Term of the judgment appealed 
 from, does not satisfy and discharge the obliga- 
 tions of the sureties on the undertaking given 
 under sections 334 and 335 of the Code, upon 
 taking such appeal, but on reversal by the Court 
 of Appeals of the judgment of the General Term, 
 and judgment entered below in accordance with 
 such decision, the sureties in the undertaking 
 are liable. N. Y. C. P., 1874, Richardson v. 
 Kropf, 47 How. 286; AfE'd S. C, 60 k Y. 
 (15 Sick.) 634. 
 
 379. Tlie dismissal by the General Term of the 
 Marine Court of an appeal from a judgment 
 rendered by a single judge, for laches of tlie 
 appellant in respect to serving the printed ease 
 and exceptions, is an effectual dismissal, witliin 
 the terms of an undertaking given to stay pro- 
 ceedings upon such appeal under sections 334 and 
 835 of tlie Code, and renders the sureties liable to 
 an action therecA ; altliough it does not operate 
 as a bar to anotlier appeal witliin the time 
 limited by law. N. Y. C. P., 1874, Wheeler v. 
 McCabe, 47 How. 283. 
 
 880. Such dismissal is not an afiBrmance of the 
 judgment appealed from, and ten days' notice 
 before suit brouglit is not necessary. lb. 
 
 381. Action on undertaking. A notice 
 served by plaintiff on defendant informing him 
 tliat judgment was duly entered on the 18th of 
 January, 1866 ; " that on the 13tli July, 1866, the 
 said judgment was duly affirmed on appeal to 
 the General Term of said court, and that the 
 appeal to the Court of Appeals taken herein by 
 the defendant was duly dismissed and judgment 
 duly entered on the remittitur from the Court of 
 Appeals on 21st of June, 1869, affirming the said 
 judgment," with costs of tlie appeal, — Held, 
 sufficient to sustain an action on an undertaking 
 given in pursuance of section 348 of the Code. 
 Sup. Ct., 1876, Rogers v. Schmersahl, 4 Hun, 623. 
 
 382. Stay. An appeal from a judgment 
 entered upon the direction of a single judge to 
 the General Term of the same court, under 
 section 348 of the Code, is effectual without 
 security. It is only when a stay of proceedings 
 is desired that security must be given, as upon 
 appeal to the Court of Appeals. N. Y. Supr. Ct. 
 Sp. T., 1871, Ritter v. Krekeler, 44 How. 445. 
 
 388. If an undertaking, filed for the purposes 
 of a stay at the time of serving the notice of 
 appeal, is disapproved, the appellant, instead of 
 serving a new notice of appeal and undertaking, 
 should move for leave to file a new undertaking, 
 nunc pro tunc, as of the time of filing the first 
 notice of appeal. lb. 
 
 384. An appeal, under section 349 of the Code, 
 from an order overruling a demurrer, does not 
 stay proceedings in the court below, but an 
 order for that purpose must be obtained from a 
 judge of the court. Sup. Ct. Sp. T., 1872, Boyt 
 V. Terwilliger, 12 Abb. N. S. 129. 
 
 5. What questions may be raised. 
 
 385. Allovrance of amendment. An order 
 of court allowing an amendment to a complaint 
 in an action for the recovery of personal prop- 
 erty, by inserting the allegation that the property 
 was " forcibly taken from tlie plaintiff," is 
 within the discretion of the court, and cannot 
 be reviewed on appeal from tlie judgment. N. 
 Y. Supr. Ct., 1873, Simmons v. Lyons, 35 N. Y. 
 Supr. (3 J. & Sp.) 554 J Aff'd S. C, 55 N. Y. 
 (10 Sick.) 671. 
 
 386. Re-opening the case to let in more proof 
 is a matter wholly in the discretion of the court, 
 and, therefore, not the subject of an exception. 
 ib. 
 
 387. AUowanoe in divorce suit. Tlie 
 amount of the allowance to be made a wife, 
 under the statute, for suit money, is entirely dis^ 
 oretionary . with the judge,- and cannot be 
 reviewed on appeal. N. Y. C. P., 1870, Green 
 V. Green, 3 Daly, 358. 
 
 388. Assumed facts. A party who, at the 
 trial of a case, assumes and treats facts as being 
 proved, and the questions raised as being 
 questions of law, to be decided by tlie court, 
 cannot on appeal from an adverse decision of 
 those questions, insist tliat a question of fact 
 was involved therein. Sup. Ct., 1871, Dutcher 
 V. Porter, 63 Barb. 15. 
 
 389. Where, in an action upon a promissory 
 note, a subsequent agreement was set up as a 
 defense, and the case contains no evidence upon 
 the subject of the performance or non-perform- 
 ance of such agreement, the appellate court 
 will presume that it was not a point in the case. 
 Ib. 
 
 390. Exceptions, questions raised by. 
 General exceptions are sufficient, when taken to 
 rulings made and propositions charged, which 
 are based only upon an erroneous theory on 
 which the cause was tried. N. Y. Supr. Ct., 1871, 
 Alger v. Vanderpoel, 34 N. Y. Supr. (2 J. & 
 Sp.) 161. 
 
 391. Where only a general exception to a part 
 of the charge of the court on one of tlie princi- 
 pal questions of fact litigated at the trial is, by 
 consent, taken to the appellate court, that court, 
 in the absence of the whole of the charge, will 
 presume that the other questions of fact were 
 properly submitted to the jury, and tlie appel- 
 lant cannot be permitted to raise the question 
 whether certain other questions of fact were 
 improperly withdrawn from their consideration. 
 N. Y. Supr. Ct., 1871, Vincent v. Bamford, 42 
 How. 109 ; S. C, 12 Abb. N. S. 252 ; 33 N. Y. 
 Supr. (1 J. & Sp.) 506. 
 
 392. Wliere a cliarge contains several propo- 
 sitions, some of which are correct, a general ex- 
 ception tliereto will not avail on appeal. N. Y. 
 Supr. Ct., 1873, Water Commissioners of Detroitv. 
 Burr, 35 N. Y. Supr. (3 J. & Sp.) 522. S. P., 
 Hayden v. Demets, 34 N. Y. Supr. (2 J. & Sp.) 
 344 ; AfE'd, 53 N. Y. (8 Sick.) 426. 
 
 393. An exception to " each and every part of 
 the charge which reads as follows," setting out 
 several distinct propositions, is not available on 
 appeal as an exception to each proposition, un- 
 less all are erroneous. Sup. Ct., 1875, Harwood 
 V. Keech, 4 Hun, 389. 
 
 394. — to conclusions of la'w, in a case 
 tried by the court without a jury, or bv a ref- 
 eree, are indispensable to raise any question for 
 review on appeal. An order of the court made 
 upon the hearing of exceptions to the report of 
 an interlocutory referee, will not be reviewed 
 upon appeal from the judgment on such report, 
 unless the exceptions to the final decision of the 
 court bring up some question which would .be 
 affected by such order. Sup. Ct., 1871, Russell 
 V. Du/Zon, 4 Lans. 399. 
 
 395. Where the case as settled, contains no 
 exception, either to the final decision, or to any 
 question of law decided during the trial, the 
 court cannot review it on appeal; but excep- 
 tions t« conclusions of law taken during the trial, 
 may be reviewed, although none were taken to 
 the findings pf law contained in the report. N 
 Y. Supr. Ct., 1873, Dainese v. Allen, 46 How. 
 
APPEAL. 
 
 55 
 
 430 ; S. C, 14 Abb. N. S. 368 ; 36 N. Y. Supr. 
 (4 J. & Sp.) 98. 
 
 396. Exceptions to conclusions of law may 
 be reviewed, although the printed case does not 
 contain any of the evidence ;- and in such cases 
 the questionls, has the judge or referee drawn 
 a correct conclusion from established facts. lb. 
 
 397, Findings of fact need no exception in 
 order to be reviewable. lb. 
 
 . 898. An exception to a legal conclusion found 
 by a referee, that one party is entitled to recover 
 of the other a specified sum, raises the question 
 whether the successful party is entitled to re- 
 cover the entire sum so found. Ct. App:, 1874, 
 Briggsv. Boyd, 56N. Y. (11 Sick.) 289 j AfE'g 
 S. C., 65 Barb. 197. 
 
 899. — to decision of motion. An excep- 
 tion to the decision upon a motion for a new 
 trial made on the minutes of the court, is not 
 available on appeal from the judgment ; it being 
 a proceeding after the trial. The only mode of 
 reviewing such a decision is by having an order 
 entered, and appealing from the order, N. Y. 
 Supr. Ct., 1874, Gregg v. Howe, 37 N. Y. Supr. 
 (5 J. & Sp.) 420. 
 
 400. A decision overruling a motion to post- 
 pone the trial is a proceeding at the trial, and 
 upon exception taken may be reviewed on ap- 
 peal from the judgment. lb. 
 
 401. Upon the examination of such exception 
 the court can look only to the facts inserted in 
 the case ; and where that shows only the mov- 
 ing affidavit and exception without any counter 
 affidavit or statement, the court must determine 
 the question upon the sufficiency of the affidavit, 
 lb. 
 
 402. — to direction of verdict. An ex- 
 ception to the direction to find a verdict brings 
 up for review the question whether, on any con- 
 struction of the facts, the jury would have been 
 warranted in finding a verdict for the other 
 party. N. Y. Supr. Ct., 1874, Miner v. Mayor, 
 etc., ofN. Y., 37 N. Y. Supr. (5 J. & Sp.) 171. 
 
 403. — to admission or exclusion of evi- 
 dence. Upon appeal in an equitable proceed- 
 ing or action, such as one to foreclose a me- 
 chanic's lien, exceptions to the admission or ex- 
 clusion of evidence are not regarded, if, taking 
 the whole evidence together, the court is satis- 
 fied that no injustice has been done by the 
 errors complained of. N. Y. 0. P., 1873, Hub- 
 hell V. Schreyer, 14 Abb. N. S. 284 ; S. C, 4 Daly, 
 362. 
 
 404. A party against whose objection and ex- 
 ception evidence is admitted, does not waive the 
 irregularity by merely failing to object to the 
 direction of a verdict subject to the opinion of 
 the General Term, but if he expressly consents 
 to that disposition of the case, he cannot there- 
 after insist that there has been a mistrial. Sup. 
 Ct., 1875, Byrnes v. City of Cohoes, 5 Hun, 602. 
 
 405. On appeal from a judgment in an action 
 on contract, where the answer contained only si 
 general denial, the defendant cannot take ad- 
 vantage of exceptions to the disallowance of 
 questions which were irrelevant under the is- 
 sues joined, and could be material only by their 
 tendency to establish a special agreement, 
 which, to make them admissible, should have 
 been specially set up. N. Y. Supr. Ct.,' 1872, 
 St. John V. Skinner, 44 How. 198; S. C. 35 N. Y. 
 Supr. (3 J. & Sp.) 565. 
 
 406. — specific. Where the exception taken 
 to a direction of a referee is specific, resting on 
 special grounds or reasons, no objection not so 
 specified will be considered on appeal. Sup. Ct., 
 1874, t/nton Manuf. Co. t. Byington, 1 Hun, 44 
 
 407. Failure of proof. If, in an action for 
 goods sold and delivered, the plaintiff fails to 
 prove a delivery of the property either to the 
 defendant personally, or to some one designated 
 to receive it, and by competent evidence, the 
 defendant can take advantage of tlie error on 
 appeal ; especially where he does not appear at 
 the trial, and therefore waives nothing. Sup. 
 Ct., 1872, Everett v. Parks, 62 Barb. 9. 
 
 408. Where the case on appeal states that 
 plaintiff's counsel offered in evidence " the in- 
 demnity bond signed and executed by all the 
 defendants," on which the suit was founded, 
 and it was received, the defendant cannot ob- 
 ject on appeal that there was no proof that such 
 bond was ever delivered, since the offer im- 
 plies that it was in fact a bond, which it could 
 not be without delivery. N. Y. Supr. Ct., 1874, 
 Miles v. Broum, 38 N. Y. Supr. (6 J. & Sp.) 400. 
 
 409. Findings, when conclusive. The 
 findings of a referee, upon conflicting evidence, 
 will not be disturbed on appeal, unless entirely 
 unsupported by, or very clearly against the 
 weight of evidence. N. Y. Supr. Ct., 1875, 
 American Corrugated Iron Co. v. Eisner, 39 N. Y. 
 Supr. (7 J. & Sp.) 200. S. P. Baker v. Cutting, 
 2 Sweeny, 435 ; Merchant v. Belding, 49 How. 
 344 ; Renscher v. Klein, 35 N. Y. Supr. (3 J. & 
 Sp.) 446 ; Color Printing Attach. Co., 37 N. Y. 
 Supr. (5 J. & Sp.) 433 ; Fisk Pavement, etc. Co. v. 
 Evans, id. 482; Aff'd, 60 N. Y. (15 Sick.) 640. 
 
 410. The finding of a referee upon confiicting 
 evidence on a question of fact, such as the ac- 
 ceptance of a contract contained in a memo- 
 randum for the sale of property at a specified 
 price, and his promise to pay therefor, should 
 not be disturbed on appeal. N. Y. Supr. Ct., 
 1876, Justice v. Lang, 39 N. Y. Supr. (7 J. & Sp.) 
 283. 
 
 411. Where there is a conflict of evidence on 
 the trial before a referee as to the making of an 
 agreement between the plaintiff and the defend- 
 ant, or as to other points, and his findings are 
 in accordance with the weight of evidence, they 
 will be sustained on appeal. Sup. Ct., 1874, 
 Clark V. Donaldson, 49 How. 63 ; S. C, 3 Hun, 
 224. 
 
 412. The finding of a referee upon conflicting 
 evidence will be sustained if there is evidence 
 to support it, notwithstanding there was a pre- 
 ponderance of four witnesses against his finding 
 to one for it. He is best able to judge of the 
 degree of credit to which they are respectively 
 entitled, and has a right to believe the one and 
 disbelieve the four. Sup. Ct., 1866, Wright v. 
 Saunders, 65 Barb. 214. 
 
 413. Although it is a general rule that if un- 
 impeached testimony on the part of the plaintiff 
 is to be believed, like testimony on the part of 
 the defendant, not conflicting therewith, is to be 
 equally beUeved, yet, where there is anything 
 in the testimony of a witness which tends to im- 
 peach his credibility, such as want of intelli- 
 gence or of memory, the finding of a referee or 
 jury in disregard of his testimony will not be 
 disturbed on appeal. N. Y, Supr. Ct., 1872, 
 Stafford V. Leamy, 48 How, 40; S. C, 34 N, Y. 
 Supr. (2 J. & Sp.) 269. 
 
 414. In reviewing a judgment on a trial by a 
 referee, the court can look only to his findings 
 of-fact, unless he is requested to find otlier facts 
 and refuses to do so. If the findings of fact are 
 sustained by the evidence, and there is no re- 
 fusal to find, the judgment must be affirmed, 
 and the court will not look into the evidence to 
 see whether there are not other facts which 
 might have been found, N, Y, Supr. Ct,, 1876, 
 
56 
 
 APPEAL. 
 
 :e T. Darrow, 39 N. T. Supr. (7 J. & Sp.; 
 
 447. 
 
 415. A general finding that the defendant has 
 failed to perform his contract, is not affected by 
 any evidence tending to limit the time of per- 
 formance, as to which the referee has neither 
 found nor refused to find. lb. 
 
 416. The finding of a referee in a foreclosure 
 action, tliat the mortgage is a valid instrument, 
 and was given to secure a portion of the pur- 
 chase-money of land sold to the mortgagor, — 
 Held, conclusive, and judgment aflrmed. Sup. 
 Ct., 1874, White v. Turner, 1 Hun, 623. 
 
 417. In an action to recover damages for an 
 assault and battery, tried before a referee, if 
 the evidence on the part of the defendant jus- 
 tifies the finding of the referee, that he acted 
 wholly in self-defence, and that there was no 
 excess of force on his part, the appellate court 
 will afiirm the judgment in his favor. Sup. Ct., 
 
 1871, Murphy v. Dart, 42 How. 31. 
 
 418. A finding of the court below on the 
 question of damages, in an action for the con- 
 version of an article, the commercial or market 
 value of which is not clearly ascertainable, will 
 not be disturbed on appeal, where it appears to 
 be based upon the owner's estimate of the value 
 of the article, and the wrongdoer had knowl- 
 edge of such estimate. N. Y. C. P., 1872, 
 Frankenstein v. Thomas, i Daly, 256. 
 
 419. In an action by a landlord to recover 
 rent, where the court below found upon con- 
 flicting evidence that the promise of the land- 
 lord, that blasting on the adjoining lot should 
 cease when he took possession, was not a con- 
 dition precedent to the tenant's accepting the 
 lease, such finding will be held conclusive, and 
 the judgment will not be disturbed on appeal. 
 N. Y. C. P., 1870, Murray v. Waller, 42 How. 64. 
 
 420. A finding upon a question of fact as to 
 which there was conflicting testimony, in an 
 action for breach of warranty, will not be re- 
 viewed on appeal. N. Y. C. P., Payne v. Tracey, 
 42 How. 95. 
 
 421. If it appear that on the motion for a refer- 
 ence there was any evidence that the trial of the 
 issues required the examination of a long ac- 
 count on either side, the finding of the Special 
 Term that such examination would be required, 
 and thereupon making the order, is conclusive. 
 If any account has to be examined, the conclu- 
 sion that it is to be deemed long will not be 
 disturbed. N. Y. Supr. Ct., 1874, Eonaldo v. 
 Mechanics Nat. Bank of N. Y., 37 N. Y. Supr. 
 (5 J. & Sp.) 208. 
 
 422. Verdict -when conclusive. The ver- 
 dict of a jury upon conflicting evidence is con- 
 clusive, and cannot be reviewed on appeal. 
 Sup. Ct., 1874, Hayes v. Thompson, 2 Hun, 518. 
 S. P., Chaffee v. Morss, id. 602 ; Van Pelt v. 
 Otter, 2 Sweeny, 202 ; Knapp v. Roche. 37 N. Y. 
 Supr. (5 J. & Sp.) 395. Even though the ap- 
 pellate court might have decided otherwise 
 upon the evidence. N. Y. C. P., 1873, Campbell 
 V. Kearney, 45 How. 87 ; Hines v. Strong, 46 How. 
 97 ; Head v. Smith, 44 How. 476. 
 
 423. Even though the defendant might be 
 held estopped by his answer from taking advan- 
 tage of a defense inconsistent therewith, which 
 is proved by his witnesses, yet where portions of 
 the answer were read to the jury for the purpose 
 of contradicting the witnesses, the verdict will 
 not be disturbed on questions of fact. Sup. Ct., 
 
 1872, Head v. Stnith, 44 How. 476. 
 
 424. Where the case has been properly sub- 
 mitted to the jury, and there is sufficient evi- 
 dence to sustain their verdict, it will be aflSrmed 
 
 on appeal. Sup. Ct, 1874, Ward v. Spencer, 1 
 Hun, 622. 
 
 425. The verdict of a jury upon contradictory 
 and irreconcilable evidence, will not be disturb- 
 ed on appeal, especially, where the defeated 
 party has omitted to move for the direction of a 
 verdict, and thereby precluded himself from 
 alleging that the verdict was against the weight 
 of evidence. N. Y. Supr. Ct., 1878, Sickels v. Gil- 
 lies, 45 How. 94 ; S. C, before, 36 N. Y. Supr. 
 (3 J. & Sp.) 14. 
 
 426. When questions of fact submitted to a 
 jury have to be determined by weighing and 
 considering conflicting evidence, and determin- 
 ing the credit of witnesses, the court, on appeal, 
 will not set aside the verdict unless it is. an 
 extreme case, onC' where it is fair to conclude 
 that the verdict has been irnproperly influenced, 
 or has resulted from bias or prejudice. N. Y. 
 Supr. Ct., 1871, Colt v. Sixth Ave. R. R. Co., 33 
 N. Y. Supr. (1 J. & Sp.) 189 ; Afl'd S. C, 49 N. 
 Y. (4 Sick.) 671. 
 
 427. Former adjudication. Where a ques- 
 tion has once been considered and decided by 
 the General Term, it will not be again reviewed 
 in the same action, except for some sufficient 
 cause shown. N. Y. Supr. Ct., 1872, Vilmar v. 
 Schall, 35 N. Y. Supr. (3 J. & Sp.) 67. 
 
 428. Unless a manifestly different case is made 
 at the second trial, the decision of the General 
 Term on the former trial will not be reviewed 
 on the second appeal. N. Y Supr. Ct., 1872, 
 Ogden v. Lathrop, 35 N. Y. Supr. (3 J. & Sp.) 73. 
 
 429. Fiivolousness of ans'wer. On appeal 
 to the General Term from a judgment for plain- 
 tiff, entered after an answer setting up usury 
 had been overruled as frivolous, the decision of 
 the court by ^yhich it was held frivolous, cannot 
 be drawn in question. Sup. Ct., 1874, Mahon v. 
 Hall, 2 Hun, 154. 
 
 430. Immaterial error. The overruling of 
 an objection to an improper question, does not 
 prejudice the party objecting, if such question 
 was not answered, and it cannot be urged as 
 error on appeal. Sup. Ct., 1871, Carpenter v. 
 Blake, 60 Barb. 488. 
 
 431. Neither is the overruling of an objection 
 to a question on the ground that it assumes a 
 fact, an error available on appeal, if such fact 
 was abundantly proved. lb. 
 
 432. A refusal to charge a correct proposition 
 is not error, if put upon the ground that there 
 was no evidence to which the charge would 
 apply. lb. 
 
 433. Where the court in its charge advances 
 a legal proposition, not based on any evidence 
 in the case, but presenting a question which 
 does not arise therein, and the determination of 
 which, in whatever way, does not and cannot 
 affect or prejudice the party excepting thereto, 
 the error is immaterial, and will not be consid- 
 ered on appeal. N. Y. Supr. Ct., 1875, Whitney 
 V. Mayor, etc., of New York, 89 N. Y. Supr. (7 J. 
 & Sp.) 106. 
 
 434. Jurisdiction. When a statute author- 
 izes an appeal from an ordinance directing a 
 local improvement, but does not direct the mode 
 in which it is to be prosecuted, the only ques- 
 tions that can be raised on such appeal are those 
 relating to the jurisdiction of the common 
 council and the regularity of their proceedings. 
 Sup. Ct., 1875, In matter of Southwm-th, 6 Hun, 55. 
 
 435. Unless the statute makes it the duty of 
 the common council to furnish a return or the 
 necessary papers on the appeal, the appellant 
 must furnish. If the officer having charge of 
 the papers necessary to be used, refuses to fur- 
 
APPEAL. 
 
 57 
 
 niefa copies or allawthem to be taken, the court 
 has power to compel him to do so. lb. 
 
 486. Justice's return. On a second motion 
 by appellants from a justice's coiirt to be reliev- 
 ed from default in the appellate court, the court 
 will look into the merits presented by the jus- 
 tice's return. N. Y. C. P. Sp. T., 1871, Luft v. 
 Graham, 44 How. 152 ; S. C, 13 Abb. N. S. 175. 
 
 437. Ne'W trial, denial of. On appeal from 
 an order denying a motion for a new trial, the 
 appellate court will not review the whole pro- 
 ceedings at the trial, if the printed case fails to 
 show the grounds upon which the motion was 
 based., or does show that no grounds were as- 
 signed, unless an appeal from the judgment is 
 pending and is heard at the same time, so that 
 the court can examine the whole matter and do 
 full and complete justice between the parties. 
 N. Y. Supr. Ct., 1875, Alfaro v. Davidson, 39 N. 
 Y. Supr. (7 J. & Sp.) 463. 
 
 438. Order punishing for contempt. Upon 
 appeal from an order adjudging a party in con- 
 tempt for disobedience of a previous order, such 
 previous order cannot be reviewed ; neither can 
 the court consider facts existing at the time it 
 was granted which would have justified a modi- 
 fication of it, but which were not then disclosed, 
 or such facts subsequently occurring. Ct App., 
 1873, People ex rel. Day y. Bergen, 16 Abb. N. S. 
 97; S. C, 53 N. Y. (8 Sick.) 404. 
 
 439. Upon such appeal the Court cannot con- 
 sider the compliance of the party in contempt 
 with the order during a suspension of the final 
 decision, if not shown in the court below. lb. 
 
 440. Question of fact. No question of fact 
 will be considered, upon a judgment entered on 
 the verdict of a jury, where no motion for a new 
 trial has been made. Sup. Ct., 1875, National 
 State Bank of Troy v. Rising, 4 Hun, 793. 
 
 441. Upon appeal from a judgment rendered 
 on report of a referee, on exceptions to findings 
 of fact, in an action in the nature of a creditor's 
 bill to reach property in the hands of a third 
 person alleged to be fraudulently held for the 
 debtor's benefit, it is the duty of the court to 
 examine all the evidence in the case, and to re- 
 verse or affirm the judgment according to its 
 own conclusions of fact. Sup. Ct., 1872, Shep- 
 herd V. Hill, 6 Lans. 387. 
 
 442. On appeal from a judgment at Special 
 Term «upon the verdict of a jury, the General 
 Term cannot review it on the facte, or upon the 
 ground of insufficient evidence, or of the verdict 
 being against the weight of evidence, unless a 
 motion upon those grounds has been made at 
 Special Term, but can only review the proceed- 
 ings upon questions of law. Sup. Ct., 1872, Ben- 
 nett V. Matthews, 64 Barb. 410. 
 
 443. Questions of law. Where a case 
 presents only questions of law arising on excep- 
 tions, and they are not reserved for argument or 
 further consideration, or ordered to be heard at 
 General Term in the first instance, it is not 
 necessary that they should be heard before 
 judgment at the Special Term, by way of a mo- 
 tion for a new trial, but they may be consider- 
 ed on appeal from the judgment. N. Y. Supr. 
 Ct., 1870, Ward v. Central Park, N. and E. Riv. 
 R. R. Co., 2 Sweeny, 701. 
 
 444. Questions raised below. An appeal 
 from an order of the Special Term confirming 
 the report of commissioners of estimate and as- 
 sessment, brings up for review only those ques- 
 tions which were discussed below. Sup. Ct., 
 1875, In matter of Kingsbridge Road, 5 Hun, 146. 
 
 445. — not raised below. An objection in 
 respect to the admission of evidence, which 
 
 might have been obviated if made at the trial, 
 cannot be entertained if made for the first time 
 on appeal. Sup. Ct., 1875, Edington v. Mut. Life 
 Ins. Co. ofN. Y.. 5 Hun, 1. S. P., Gibson y. Stet- 
 zer, 3 Hun, 589. 
 
 446. Where evidence was admitted below 
 against an objection in general terms, the appel- 
 lant cannot for the first time on appeal raise the 
 objection that it was inadmissible because it was 
 the opinion of the witness. Sup. Ct., 1872, 
 Walker v. Erie Railway Co., 63 Barb. 260. 
 
 447. The question whether a demand was 
 made from the mortgagor of the property em- 
 braced in a chattel mortgage payable on demand, 
 before suit brought against a sheriff for taking 
 such property on execution against the mortga- 
 gor^ if not raised on the trial, cannot be raised 
 for the first time on appeal. N. Y. Supr. Ct., 
 1872, Wisser v. O'Brien, 44 How. 209 ; S. C, 85 
 N. Y. Supr. (3 J. & Sp.) 149. 
 
 448. In an action where there is a clear con- 
 flict of evidence as to the real agreement be- 
 tween the parties, and the defendant goes to the 
 jury without objection, he cannot afterward 
 raise the question that the case presented no 
 evidence to be submitted to the jury, or that, at 
 least, it presented such a preponderance of evi- 
 dence in his favor as to make it the duty of the 
 court to direct the jury how to find. N. Y. Supr. 
 Ct., 1872, St. John V. Skinner, 44 How. 198; S. 
 C, 35 N. Y. Supr. (3 J. & Sp.) 565. 
 
 449. The objectioii that the proof offered by 
 the plaintiff in an action upon a life insurance 
 policy, to show an insurable interest in himself, 
 would tend to show an interest different from 
 that stated in the preliminary proofs, if not 
 raised below by objection to its reception, or 
 motion to strike out, or otherwise, cannot be 
 urged on appeal. Sup. Ct., 1871, Smith v. ^tna 
 Ufe Ins. Co., 5 Lans. 545. 
 
 450. Where the record on appeal does not as- 
 sume to con tain all the evidence, but does show 
 that th6 defendant called the attention of the 
 court to certain points, but did not in any man- 
 ner raise the point below that the plaintiff's case 
 was not made out on the merits, he cannot raise 
 it on appeal. Sup. Ct., 1875, Gallup v. Babsen, 
 3 Hun, 598. 
 
 451. On appeal from a judgment for plaintiff 
 in an action brought by the widow of an intes- 
 tate as administratrix of his estate, and as as- 
 signee of the tenants of the estate, to recover 
 back rents paid by them to the defendant as re- 
 ceiver of the individual property of the plaintiff, 
 under a mistake as to his right to collect the 
 same, the appellant cannot raise the question 
 that he acquired title to one undivided third of 
 the rents as the widow's portion thereof, where 
 it does not appear that they were the surplus 
 remaining after payment of the debts of the 
 intestate, or that such claim was made on the 
 trial. Brooklyn City Ct, 1872, Barker v. Clark, 
 12 Abb. N. S. 106. 
 
 452. A party who assented to the submission 
 of an issue to the jury, without objection as to 
 its form, cannot avail himself of any informal- 
 ity on appeal. Sup. Ct., 1875, Zimmerman v. 
 Schoenfeldt, 3 Hun, 692. 
 
 453. The court on appeal, will not examine 
 into the sufficiency of the complaint, unless 
 that question was raised in the court below. 
 N. Y. C. P., 1869, Ahernathy v. Society of the 
 Church of the Puritans, 3 Daly, 1. 
 
 464. The objection that the complaint in an 
 action for partition does not aver that the plain- 
 tiff is in possession of the premises, is too late 
 if taken on appeal after judgment; even though 
 
58 
 
 APPEAL. 
 
 no possession was proved. Sup. Ct., 1872, Howell 
 V. Mills, 7 Lans. 193. 
 
 455. On appeal in an action of replevin 
 to recover the possession of liorses, wliich tlie 
 defendant claimed the right to detain by virtue 
 of a lien for their board, wliere no question was 
 raised at the trial as to the sufficiency of tlie 
 complaint for want of an allegation of demand 
 and refusal, and a demand and refusal before suit 
 brought was proved, the defendant cannot raise 
 that question on appeal. Sup. Ct., 1875. Treat 
 V. Hathorn, 3 Hun, 646. 
 
 456. An objection that the answer sets up 
 defenses inconsistent with that urged upon the 
 trial, cannot be entertained when raised for the 
 first time on appeal. Ct. App., 1873, Jackson v. 
 Vanslyke, 52 N. Y. (7 Sick.) 645. 
 
 457. A party who appears and submits to the 
 equitable jurisdiction of the court, without ob- 
 jecting tliat the plaintiff's remedy is at law and 
 not in equity, cannot raise that question on ap- 
 peal. N. Y. Supr. Ct., 1875, Bruce v. Kelly, 39 
 N. Y. Supr. (7 J. & Sp.) 27. 
 
 458. The objection that the notice of motion 
 for the order appealed from was not sufficient, 
 in respect to pointing out the irregularity com- 
 plained of, will not be considered on appeal, if 
 the point was not raised in the court below, but, 
 the motion was discussed and decided as if the 
 notice was strictly regular. Sup. Ct., 1874, 
 Livermm-e v. Bainbridge, 47 How. 350 ; S. C,. 14 
 Abb. N. S. 227. 
 
 459. Where no grounds for a new trial are 
 stated on the motion therefor, it is not error to 
 deny it, and the appellate court will not consider 
 grounds stated there for the first time. Sup. 
 Ct., 1875, George v. Jennings, 4 Hun, 66. 
 
 460. It is not necessary that a party should 
 request the court to submit the case to the jury, 
 in order to give him the benefit of an exception 
 to a direction to the jury to find a verdict for 
 the adverse party. Ct. App., 1873, Freckina v. 
 B^lland, 53 N. Y. (8 Sick.) 422 ; Kev'g S: C", 33 
 N.Y. Supr. (IJ.&Sp.) 499. ' 
 
 461. Although there was a conflict of evi- 
 dence in respect to material questions in a case, 
 yet, a party who omitted to call the attention of 
 the presiding justice thereto on the trial, or to 
 ask that such questions be submitted to the jury, 
 cannot raise any objection on that account upon 
 appeal. N. Y. Supr. Ct., 1873, White v. Talmage, 
 35 N. Y. Supr. (3 J. & Sp.) 223. S. P. Scroffw. 
 Bauer, 42 How. 348 ; 33 N. Y. Supr. (1 J. & Sp.) 
 199 ; Vincent v. Sands, 42 How. 231 ; 11 Abb. 
 N. S. 366 ; 33 N. Y. Supr. (IJ. & Sp.) 511. 
 
 462. An objection that the plaintiff seeking 
 to recover back property obtained from him by 
 fraudulent representations, should have return- 
 ed or offered to return the notes^received there- 
 for, in order to completely rescind the contract, 
 cannot be considered on appeal if not taken be- 
 low. Sup. Ct. 1874, Salomon v. Van Praag, 48 
 How. 338. 
 
 463. A question of the liability of the de- 
 fendant as sheriff by reason of the failure of the 
 sureties in an undertaking in replevin to justify, 
 upon the facts stated in the complaint and ad- 
 mitted by the answer, cannot be raised for the 
 first time on appeal from the judgment against 
 him. Sup. Ct. 1872, Hofheimer y. Campbell, 1 
 Lans. 157. 
 
 464. The statutes of other States, by which the 
 order appealed from might have been justified, 
 cannot be -read for the first time in the appellate 
 court, if not produced on the hearing in the 
 court below. Sup. Gt., 1874, Proviy v. Mich. S. 
 i- N. Ind. R. B. Co., 1 Hun, 655. 
 
 465. Reference. Upon appeal from an order 
 confirming a referee's report, the objection that 
 the order of reference was erroneous because 
 made before final judgment in the action, cannot 
 be considered. To raise that question the plaintiff 
 should have appealed from the order of reference. 
 Sup. Ct., 1875, Lawton v. Green, 5 Hun, 157. 
 . 466. The discretion of a judge in granting a 
 motion for a reference will not "be reviewed on 
 appeal if the ■ action was referable. Sup. Ct., 
 1871, Ludlow V. American Exch. Nat. Bank, 89 
 Barb. 809. 
 
 467. Rights of defendant not appealing. 
 In an action against several defendants tor a 
 tort, if the complaint is dismissed as against one, 
 without costs, and he does not appeal, the 
 question as to his right to costs cannot be raised 
 upon appeal by the other defendants. Ct. App., 
 1874, Roberts v. Johnson, 88 N. Y. (13 Sick.) 613; 
 Aff'g S. C, 37 N. Y. Supr. (8 J. & Sp.) 187. 
 
 468. Striking out ans-wer. An order strik- 
 ing out an answer, after failure to comply with 
 an order to make it more definite, entered by 
 default on motion of the plaintiff, made upon 
 notice, is not reviewable on appeal, and the court 
 will not, under such circumstances, regard the 
 answer as reinstated for the purpose of reviewing 
 the order to make it more definite. Sup.~ Ct., 
 1874, Innes v. Purcell, 1 Hun, 318 ; Affirmed S. 
 C, 88 N. Y. (13.Sick.) 388. 
 
 469. Verdict sustained. Although a party 
 does not in any way raise the question upon the 
 trial of a cause that the evidence authorized no 
 other verdict than one in his favor, yet where he 
 subsequently moves for a new trial on a case and 
 exceptions, and appeals from the order denying 
 such motion as well as from the judgment, the 
 General Term may examine the evidence for the 
 purpose of ascertaining whether the verdict 
 should stand. N. Y. Supr. Ct., 1873, Carnes v. 
 Piatt, 46 How. 620 ; S. C, 15 Abb. N. S. 387 1 36 
 N. Y. Supr.(4 J. & Sp.) 361. 
 
 6. Intendments. 
 
 470. Regularity. On appeal, flvery reason- 
 able intendment on questions of law as well as 
 of fact, is to be made in support of the judgment, 
 and the onus of establishing error is upon the 
 party alleging it. N. Y. Supr. Ct., 1873, Dainese v. 
 Allen, 45 How. 430; S. C, 14 Abb. N. 8. 363 ; 
 36 N. Y. Supr.(4 J. & Sp.) 98. 
 
 471. If, in an action by a highway commis- 
 sioner to recover a penalty for obstructing a 
 highway, evidence is given showing the posting 
 of notice of a freeholder's meeting in three public 
 places, and no objection is raised on the trial 
 that they were not shown to have been posted 
 for the required time, it will be assumed on 
 appeal that they were sufficiently and legally 
 posted. Sup. Ct., 1871, Cooper v. Bean, 5 Lans. 
 318. 
 
 472. Facts which, on the trial, were assumed 
 as existing, will on appeal, be regarded as 
 admitted. lb. 
 
 473. On appeal, every presumption is in favor 
 of the correctness of the order appealed from ; 
 and the decision of a motion, at Special Term, 
 upon disputed questions of fact will not be 
 disturbed. N. Y. Supr.Ct., 1870, Henderson v. 
 Jackson, 2 Sweeny, 603. 
 
 474. Upon the question of the propriety of a 
 nonsuit which has been granted, the plaintiff is 
 entitled to the benefit of all the conclusions the 
 jury would have been warranted in drawing 
 from the facts proven or offered to be proven by 
 him. Sup. Ct., 1878, Morss v. Osborn, 64 Barb. 648. 
 
APPEAL. 
 
 59 
 
 475. Where a nonsuit was awarded on the 
 ground that the plaintiff's right of action was 
 barred by a submission to arbitration and an 
 award under it, all just inferences supported by 
 the evidence offered should be drawn in favor of 
 the plaintiff, and if it shows a cause of action 
 not covered by the arbitration and award, a new 
 trial should be granted. lb. 
 
 476. A defendant who, at the close of the 
 whole evidence, makes an unavailing motion for 
 a nonsuit, and does not ask Jhe court to submit 
 any question of fact to the jury, when the court 
 directs a verdict for the plaintiff, is held to have 
 admitted that questions of law, only, are involved, 
 and the judgment will be affirmed if the facts 
 proved will sustain the finding. Sup. Ct., 1874, 
 Todd V. Todd, 2 Hun, 298. 
 
 477. In a case where illegal evidence was 
 received and the court directed a verdict, — Held, 
 that the judgment would be affirmed if there 
 was sufficient legal evidence to justify the court 
 in giving slich direction, and the court would be 
 presumed to have acted on that alone. Sup. Ct., 
 1874, Tenth Nat. Bank of New York v. Darragh, 1 
 Hun, 111. 
 
 478. The refusal of the judge, at the trial, to 
 pass upon evidence to establish a defense which 
 the defendant was entitled to the benefit of, will 
 be assumed to have been based upon the ground 
 that it was immaterial and established no de- 
 fense ; which raises a question of law, to be 
 passed upon by the appellate court. N. Y. Supr. 
 Ct., 1875, Bensel v. Gray, 38 N. Y. Supr. (6 J. & 
 Sp.) 447. 
 
 479. In an action to recover for goods lost by 
 the negligence of defendant's servants, if there 
 is not a finding of the negligence in terms, and 
 such a finding is deemed necessary to support 
 and uphold the judgment, the court will presu'me 
 that the referee did find that fact, if the evi- 
 dence is sufficient to justify such finding. Sup. 
 Ct., 1872, Wescott v. Fargo, 6 Lans. 319 ; S. C, 
 63 Barb. 349. 
 
 480. In order to sustain a judgment rendered 
 on report of a referee, it may be assumed that a 
 finding of fact was sustained by evidence given 
 on the trial, although no evidence thereof 
 appears in the case on appeal. Sup. Ct., 1873, 
 Tryon V. Baker, 7 Lans. 511. 
 
 481. Where the bill of exceptions does not 
 show all the evidence given on the trial, the 
 appellate court will assume that that which is 
 not returned to it warranted the ruling and 
 justified the verdict, when the question is upon 
 the sufficiency of the evidence. Sup. Ct., 1874, 
 Mahoney V. People, 4S How. 185; S. C. 3 Hun, 
 202 ; Aff'd, S. C, 69 N. Y. (14 Sick.) 659. 
 
 482. Thus, where the charge of the court, that 
 if the jury believed in the truth of the com- 
 plainant's testimony, then the prisoner was 
 guilty of robbery in the first degree, as charged, 
 not merely of larceny from the person, was 
 excepted to by defendant, and the bill of excep- 
 tions does not show all the evidence upon which 
 the jury acted, the court will assume that there 
 was sufficient evidence of violence to sustain the 
 conviction for robbery. lb. 
 
 483. If the case on appeal from an order grant- 
 ing a new trial, on a motion upon the judge's 
 minutes, does not profess to contain the whole 
 evidence, the appellate court cannot say that the 
 order was erroneous, as it must be considered to 
 have been granted on all the proceedings of the 
 trial, including the testimony and the charge of 
 the judge. Sup. Ct., 1874, Boyer v. Brown, 1 
 Hun, 615. 
 
 484. When the case contains only the findings 
 
 of fact without the evidence, it is to he assumed 
 that there was no evidence from which any 
 other fact could be found ; and if the conclusions 
 of law have been excepted to, the question to he 
 determined is, whether such conclusions are 
 warranted by the findings of fact. N. Y. Supr. 
 Ct., 1872, Beard v. Sinnott, 36 N. Y. Supr. (8 J. 
 & Sp.) 61. 
 
 485. Even though the fraud alleged in the 
 complaint is not expressly negatived by the 
 referee's findings, it cannot be inferred that he 
 found it affirmatively, when to do so would con- 
 tradict and destroy the whole theory on which 
 he determined tlie case. Sup. Ct., 1871, Stowell 
 V. Huslett, 6 Lans. 380. 
 
 486. Where there are several disputed facts in 
 a case, and a general verdict is given for the 
 plaintiff, it must be presumed that the jury 
 passed upon ttiem all ; and where there was no 
 exception to the charge, nor request to submit 
 any specific question of fact to the jury, every 
 intendment must be in favor of the correctness 
 of their verdict. N. Y. Supr. Ct., 1873, Murphy 
 V. Lippe, 35 N. Y. Supr. (3 J. & Sp.) 542. 
 
 7. Dismissal. 
 
 487. Causes for. There are but two causes 
 for which the General Term can dismiss an 
 appeal : 1st, the non-appealability of the decision 
 below ; and 2d, the non-service of printed 
 copies of the appeal papers. N. Y. Supr. Ct., 
 1870, Phelps V. Swan, 2 Sweeny, 696. 
 
 488. On a motion to dismiss for either of 
 these causes, the General Term will not deter- 
 mine the question whether or not the appellant 
 Ijias lost his right to annex a case or bill of 
 exceptions ; but the motion papers should show, 
 either that a bill or case has been filed and 
 annexed, or that the Special Term has by order 
 declared the right to make a case waived,' or if 
 made, then that it was abandoned. lb. 
 
 489. Where the appellant has failed to print 
 and serve his papers, and his right to make a 
 case has gone, and an order has on that account 
 been entered declaring the appeal abandoned, 
 the appeal will be dismissed notwithstanding no 
 notice of settlement of such order has been 
 given to the appellant. N. Y. Supr. Ct., 1874, 
 Kecky. Werder, 37 N. Y. Supr. (6 J. & Sp.) 
 219. 
 
 490. Violation of a stipulation by means of 
 which the appellant obtained a stay of proceed- 
 ings pending the appeal, is not ground for the 
 dismissal of such appeal; the respondent's 
 remedy is by motion to vacate the stay. N. Y. 
 C. P., 1870, Baker v. Stephens, 10 Abb. N. S. 1. 
 
 491. Where, in an action brought by the 
 Attorney General to set aside a canal contract, it 
 was verbally agreed between him and defend- 
 ant's counsel after an order of Special Term sus- 
 taining a demurrer to the complaint, that defend- 
 ant should waive all claim to costs, and that no 
 appeal should be taken ; and relying upon such 
 agreement defendant's counsel took no further 
 steps in the matter, but informed their client 
 that the case was ended, — Held, sufficient to 
 authorize the General Term, in its discretion, to 
 dismiss an appeal brought two years later by a 
 successor in office to such Attorney General. Ct. 
 App., 1878, People v. Stephens, 52 N. Y. (7 Sick.) 
 306. 
 
 492. 'Waiver. One who enforces a judgment 
 in his favor by execution after he has taken an 
 appeal therefrom, thereby waives his right fur- 
 ther to prosecute his appeal, and it should be 
 dismissed on motion of the respondent. Ct. 
 
60 
 
 APPEAL. 
 
 App., 1871, Knapp v. Broum, 11 Abb. N. S. 118 ; 
 S. C.,45N. Y. (6Hand,) 207. 
 
 493. The respondent may move for dismissal 
 of the appeal on that ground, notwithstanding he 
 has proposed amendments to the case made by 
 the appellant after such collection, lb. 
 
 494. Dismissal for want of prosecution. 
 The practice in the Superior Court in respect to 
 disposing of appeals for want of prosecution is 
 as follows : If the appellant fails to serve his 
 case, or to have it settled or filed within the time 
 required by the rules, the respondent should 
 apply, on notice, to the Special Term, to have 
 the ease declared abandoned ; he should then 
 apply for an order to put the case on the General 
 Term calendar; and on an affidavit of the non- 
 service of the appeal papers, and on notice to 
 the appellant for the earliest motion day in 
 term, move to strike the cause from the calen- 
 dar, and for judgment of affirmance. N. Y. 
 Supr. Ct., mi, Garraher Y. Carraher, 42 How. 
 458 ; S. C, 11 Abb. N. S. 338 ; 33 N. Y. Supr. (1 
 J. & Sp.) 502. 
 
 495. An appeal should not be dismissed for 
 the failure of tlie appellant to settle or serve and 
 file his case within the time prescribed by the 
 rules, if he objects and insists on his right to be 
 heard upon the judgment roll as it stands, as he 
 may do and raise such questions as appear on 
 the face of the record ; but in order to be in a 
 position to do that, he must print and serve the 
 papers intended to be used on the hearing at 
 least eight days before the commencement of 
 the General Term next after the order of the 
 Special Term declaring the case abandoned. lb. 
 
 496. — for non-service of case. If the 
 appellant fails to serve printed copies of the case 
 on the respondent, as required by Rule 50, the 
 latter has the right to make a summary motion 
 to dismiss the appeal, but if he choose not to do 
 so, he may wait until the appeal is called on for 
 argument, and then, if the appellant is not ready, 
 take a judgment of affirmance. N. Y. C. P. Sp. 
 T., 1874, Brown v. Niess, 46 How. 465 ; S. C, 
 15 Abb. N. S. 344. 
 
 8. Rehearing. 
 
 497. 'When granted. It is the settled prac- 
 tice of the court not to grant a motion for a re- 
 argument of an appeal upon grounds which 
 question the correctness of the former decision 
 made upon the law and the facts as they were 
 before the former General Term. N. Y. Supr. 
 Ct., 1872, Pendleton v. Lord, 34 N. Y. Supr. (2 J. 
 & Sp.) 301. S. P. Atlantic and Pac. Tel. Co. v. 
 Barnes, 39 N. Y. Supr. (7 J. & Sp.) 357. 
 
 498. A re-argument will not be granted on the 
 ground that the former General Term overlooked 
 an important question arising on the evidence, 
 when the printed points of counsel and the opin- 
 ion of the court show that such question was 
 noticed and passed upon. lb. 
 
 499. If, upon the hearing of an appeal, an im- 
 portant point is not considered by the court, a 
 Tehearing may properly be granted at a subse- 
 quent term ; but it must clearly appear that the 
 previous General Terrrj did not consider the 
 point at all, and if it was, in fact, considered and 
 decided, it is immaterial whether the conclusion 
 arrived at is stated in the opinion or not. N. Y. 
 Supr. Ct., 1874, Gtiidet v. Mayor, etc., o/NewYork, 
 37 N. Y. Supr. (5 J. & Sp.) 124. 
 
 500. A motion for re-argument of an appeal 
 cannot be sustained on the ground that the 
 court overlooked important testimony, without 
 showing that it did not, in fact, conaider aU the 
 
 testimony ; and that is not established by the 
 mere fact that the court in its opinion referred 
 only to parts of the testimony. N. Y. Supr. Ct., 
 1875, Weston v. Ketchum, 39 N. Y. Supr. (7 J. & 
 Sp.) 552. 
 
 601. If the court has committed some obvious 
 mistake, or the court of highest appellate juris- 
 diction has, pending the decision, otherwise de- 
 cided the question involved, then, to save delay 
 and expense to the parties, a re-argument may 
 properly be ordered- But if the error is one of 
 law, then the remedy of the aggrieved party is 
 by appeal, and not by motion to another General 
 Term to review the decision of the former. N. 
 Y. Supr. Ct., 1873, Taylor v. Grant, 36 N. Y. 
 Supr. (4J. &Sp.) 259. 
 
 502. The fact that the applicant has a remedy 
 by appeal to the Court of Appeals is a sufficient 
 reason for refusing to order a re-argument of an 
 appeal ; but an order or judgment dismissing the 
 complaint after reversing the judgment below, 
 may properly be amended by ordering a new 
 trial, where the circumstances render that just 
 and proper. N. Y. Supr. Ct., 1872, Giles v. Austin, 
 34 N. Y. Supr. (2 J. & Sp.) 540. 
 
 9. Decision on appeal. 
 
 503. Grounds for reversal. An error In a 
 charge to the jury which, under the circum- 
 stances of the case could by no possibility have 
 prejudiced the defeated party, is no cause for 
 reversing the judgment. Sup. Ct., 1871, Ti_ffi v. 
 Moor, 59 Barb. 619. S. P. Tochman v. Brown, 33 
 N. Y. Supr. (1 J. & Sp.) 409. 
 
 504. An objection that no such cause of action 
 as the jury based their verdict upon was stated 
 in the complaint, if material, would not avail on 
 appeal if not raised at the trial, but if immar 
 terial in the view the jury took of the case, it 
 will not avail there though taken below. lb. 
 
 605. The refusal of a request to charge what 
 would be the law upon a state of facts assumed 
 but not proven, is not error. N. Y. Supr. Ct., 
 1871, Tochman v. Broim, 33 N. Y. Supr. (1 J. & 
 Sp.)409. 
 
 506. Nor is it error to refuse to charge that 
 the testimony of a witness to a particular point 
 is Unsupported by other witnesses, that being a 
 question for the jury. lb. 
 
 607. Although the court- may have-made re- 
 marks to the jury in its charge, which, standing 
 alone, could not be approved, yet if the general 
 bearing and scope of the charge is right, and the 
 erroneous remarks did no injury to the unsuc- 
 cessful party, the verdict will not be set aside on 
 appeal. Sup. Ct., 1873, Shrader v. Bouker, 65 
 Barb. 608. 
 
 608. A submission of questions of fact 
 to the jury, when not authorized by the evidence 
 given at the trial, is sufficient cause for revers- 
 ing the judgment. Sup. Ct., 1874^ Pettis v. Pier, 
 1 Hun, 622. S. P. Baker v. Arnot, 2 Huii, 682. 
 
 509. The submission of special questions of 
 fact to the jury in addition to the issues gen- 
 erally, is a matter of discretion with the court, 
 and its refusal to submit them is no ground of 
 error. N. Y. Supr. Ct., 1874, Sturm v. Atlantic 
 Mut. Ins. Co., 38 N. Y. Supr. (6 J. & Sp.) 281. 
 
 610. A refusal to submit such questions, on 
 the ground of want of power, when the court has 
 the power, might be ground for reversal of the 
 judgment ; but a ruling by the judge that he 
 will give it if the other side consents, and cannot 
 give it without, does not place the refusal on the 
 ground of want of power. lb. 
 
 511. If the party to whom auch ruling waa 
 
APPEAL. 
 
 61 
 
 adverse was led to believe that the judge sup- 
 posed that he had not the power, without such 
 consent, it was his duty to call the attention of 
 the judge to that point, and obtain a ruling dis- 
 tinctly upon it. lb. 
 
 612. Although the request to submit such 
 questions may not have been unreasonable in 
 itself, yet the refusal of the court to do so affords 
 no valid ground for disturbing the judgment, 
 where the facts which would form the basis of 
 an answer to those questions were substantially 
 submitted by the charge, and were' necessarily 
 involved in the decision of the jury. lb. 
 
 513. In an action for the conversion of person- 
 al property, where there is no proof upon which 
 the jury can properly find a conversion, an in- 
 struction to th^ jury, that if they find for the 
 plaintiff he is entitled to interest from the time 
 of the conversion, is virtually a charge that there 
 is evidence of conversion, and is an error for 
 which a judgment in favor of plaintiff should be 
 reversed. Sup. Ct., 1872, Mome v. Erie Railway 
 Co., 7 Lans. 39. 
 
 514. Instructioii as to credibility. 
 Where the evidence showed that the plaintiff 
 publicly claimed at the time of the sale on ex- 
 . ecution of the property sued for, that it belonged 
 to her brother, and she would not lie about it, 
 and on the trial she swore positively that it was 
 her own property, an instruction that " if the 
 jury consider that the woman, unadvised, re- 
 sorted to that course in order to carry her boat 
 along, and not intending to lie about it, they 
 have a right to say so," is erroneous, and suf- 
 ficient cause for reversing the judgment. Sup. 
 Ct., 1871, Twinam v. Swart, 4 Lans. 263, 
 
 516. Brror as to costs. A judgment should 
 not be reversed for an error in the taxation of 
 costs, but siniply a re-adjustment ordered. Ct. 
 App., 1872, Watson v. Gardiner, 50 N. Y. (5 Sick.) 
 671. 
 
 616. Credibility of witness. The referee 
 or a jury before whom a cause is tried are the 
 best judges as to the credibility of a witness, 
 whose testimony is somewhat contradictory, and 
 their decision on that point will not be disturbed 
 on appeal. Sup. Ct., 1872, Hinde v. Smith, 6 
 Lans. 464. 
 
 517. Damages, compntation of. A ref- 
 eree's error in computing too great a sum as due 
 the plaintiff need not necessarily work a reversal 
 of the judgment, where the court can make the 
 computation correctly, and direct a proper mod- 
 ification of the judgment. lb. 
 
 518. Szcessive damages. That the dam- 
 ages are excessive and the verdict contrary to 
 the evidence is good ground for reversing the 
 judgment. Sup. Ct, 1874, fViUis v. Weaver, 1 
 Hun, 121; Eev'd, S. C, 68 N. Y. (13 Sick.) 681. 
 
 519. The judgment will be reversed where it 
 appears that the estimate of damages was based 
 upon speculation and conjecture, and was exces- 
 sive. Sup. Ct.,' 1873, HoUoway v. Stephens, 46 
 How. 363. 
 
 620. In actions other than those upon con- 
 tracts sounding in damages, it is strictly within 
 the province of the jury to estimate the loss suf- 
 fered, and an appellate court will not interfere 
 with their verdict on the ground of excessive 
 damages, unless there is manifest abuse, or the 
 sum given is so large as to show that the jury 
 were^ affected by passion, prejudice or some 
 undue influence. Sup, Ct., 1876, Peck v. N. Y. 
 Cent, and Hud. R. R. K Co., 4 Hun, 236. 
 
 621. Denial of motion to dismiss. The 
 erroneous denial of a motion to dismisB the com- 
 plaint as to one plaintiff, affords no ground for 
 
 a new trial, where the other has a good cause of 
 action ; but the General Term, having power so 
 to do, should correct this by making the proper 
 order itself, and sustaining the judgment as to 
 the other plaintiff. Ct. App., 1873, Simar v. 
 Canaday, 68 N. Y. (8 Sick.) 298. 
 
 622. Evidence, admission of. The admis- 
 sion of immaterial evidence, which may have 
 had an effect upon the jury, is good ground for 
 reversing a judgment and granting a new trial. 
 Sup. Ct., 1874, Ray v. Smith, 2 Hun, 597. S. P., 
 Cook v. N. Y. Cent. R. R. Co., 5 Lans. 401. 
 
 628. A judgment on report of a referee will 
 not be reversed for the admission of incompetent 
 evidence, where the referee expressly negatives 
 by las findings the only fact which such evi- 
 dence tends to establish. Sup. Ct., 1872, Rogers ■ 
 V. Wheeler, 6 Lans. 420. Or, if without such tes- 
 timony there was sufficient to sustain the judg- 
 ment. Sup. Ct., 1872, Fabbri v. Mercantile Mut. 
 Ins. Co., 6 Lans. 446: S. C, 64 Barb. 85. 
 
 524. A judgment will not be reversed for the 
 admission of improper, irrelevant, immaterial or 
 cumulative testimony, if there was sufficient 
 competent evidence to sustain it, and the court 
 can see that the appellant was not injured there- 
 by. Sup. Ct., 1875, Milliner v. Lucas, 3 Hun, 496. 
 
 525. The error of admitting improper testi- 
 mony is only presumptively erroneous, and when 
 it appears on examination of the whole case that 
 the result ought to have been the same if the 
 error had not been committed, it furnishes no 
 ground for reversing the judgment. Sup. Ct., 
 1872, Kingsland v. Chittenden, 6 Lans. 15. 
 
 526. The judgment in an equitable action 
 will not be reversed, on appeal, on account of 
 the admission of improper evidence, if from the 
 whole case it appears that such evidence could 
 not have changed the result. Sup. Ct., 1869, 
 Kingy. Whaley, 59 Barb. 71. S. P., Churchy.. 
 Kidd, 3 Hun, 254. 
 
 527. Where there is reason to believe that 
 justice has not been done on the trial below, and 
 that the verdict was rendered on incompetent 
 testimony, the court on appeal may reverse the 
 judgment and grant a new trial, although no 
 sufficient exception was taken below. D-iLT, J., 
 dissents. N. Y. C. P., 1871, Maier v. Roman, 4 
 Daly., 168. 
 
 528. The admission in evidence on the part of 
 the plaintiff of a conversation between the wit- 
 ness and the defendant's testator, which did not 
 prejudice the defendant, and, so far as it went, 
 was merely additional evidence of the fact 
 which the defendant had sought to prove, is not 
 sufficient ground for reversing the judgment. 
 Sup. Ct., 1874, Rowland v. Heqeman, 1 Hun, 491 : 
 Aff'd by Ct. App. 
 
 529. The admission in evidence of declarations 
 of an agent, of a life insurance company, made 
 after the death of the assured, relative to an 
 agreement for extending the time for payment 
 of premiums, in an action on the policy, is not 
 an error of which the defendants can complain 
 on appeal, if such declarations tend to show that 
 such agreement was not completed. Sup. Ct., 
 1874, Zl«an V. ^(na L\fe Ins. Co., 2 Hun, 358; 
 S. C, 48 How. 36. 
 
 530. Where evidence is admitted against ob- 
 jection but without deciding the objection, thus 
 preventing the other party from excepting, it 
 will not on appeal be held a mistrial if the evi- 
 dence was competent so that the exception would 
 have been of no legal value. Sup. Ct., 1874, 
 Clark. V. Donaldson, 49 How. 63 ; S. C, 3 Hun, 224. 
 
 531. The error of admitting incompetent evi- 
 dence upon the.trial, after objection, which might 
 
62 
 
 APPEAI.. 
 
 afEect the minds of the jury, is not in all cases 
 cured by the subsequent charge to them to dis- 
 regard such evidence, but the judgment will be 
 reversed for that reason unless it appears that 
 the verdict was not affected thereby. Sup. Ct., 
 1874, Newman v. Goddard, 48 How. 363 ; S. C, 
 3 Hun, 70. S. P. Garfield v. Kirk, 65 Barb. 464. 
 
 532. Exclusion of evidence. A judgment 
 will not be reversed for the exclusion of relevant 
 testimony, where it is evident from the whole 
 case that it was unimportant, and would not 
 have changed the verdict if admitted. N. Y. 
 Supr. Ct, 1873, Townsend v. Narragansett F. and 
 M. Ins. Co., 46 How. 40 ; S. C, 36 N. Y. Supr. (4 
 J. & Sp.) 170. 
 
 583. Tlie rejection of evidence on the part of 
 "the defendant to contradict proof on the part of 
 the plaintiff of a promise by defendant, is not 
 cause for reversal of a judgment, where the fact 
 of such promise is unimportant by reason of the 
 liability of the defendant being otherwise suffi- 
 ciently established. N. Y. Supr. Ct., 1875, Par- 
 sons r. SvMon, 39 N. Y. Supr. (7 J. & Sp.) 544. 
 
 534. The rejection of evidence ofdamages 
 sustained is not ground for the reversal of a 
 judgment, where the party has not proved facts 
 sufficient to entitle himself to damages. lb. 
 
 535. An error in rejecting testimony, which 
 was admissible as the pleadings stood at the 
 time, may be cured by subsequent proceedings 
 on the trial, such as an amendment of the plead- 
 ing of the party who offered such testimony, 
 and its admission based on the amendment, so 
 that he was not prejudiced by its rejection, and 
 in that case, the judgment will not be reversed 
 upon that ground. N. Y. Supr. Ct., 1871, Harri- 
 son V. Forsyth, 33 N. Y. Supr. (1 J. & Sp.) 269. 
 
 536. The sustaining of an objection to a ques- 
 tion before it is fully stated, is not ground for a 
 reversal, although the reason for the exclusion 
 does not appear, where the counsel did not claim 
 the right to complete it. N. Y. Supr. Ct., 1875, 
 Pollock \. Brennan, 39 N. Y. Supr. (7 J. & Sp.) 
 477. 
 
 537. The exclusion of unimportant testimony 
 is not cause for reversal, although it may have 
 been pertinent. lb. 
 
 538. The reception of evidence relating to re- 
 mote times, the subject-matter of which was 
 pertinent to the inquiry, is not ground for rever- 
 sal, if the objection thereto was merely gene- 
 ral, lb. 
 
 539. A judgment will not be reversed on ap- 
 peal for the improper exclusion of evidence, un- 
 less it clearly appears that exception was duly 
 taken by the appellant, or that he was injured 
 thereby. N. Y. C. P., 1872, Carey v. Carey, 4 
 Daly, 270. 
 
 540. Exceptions insufiScient. Where the 
 appellant makes no motion for a dismissal of the 
 complaint or the direction of a verdict, and takes 
 no exception to the charge to the jury, the judg- 
 ment will be affirmed on appeal if the excep- 
 tions to the admission and exclusion of evidence 
 are untenable. An exception to the denial of a 
 motion for a new trial will not avail on such ap- 
 peal. N. Y. Supr. Ct., 1875, McMicken v. Law- 
 rence, 39 N. Y. Supr. (7 J. & Sp.) 540. 
 
 541. On appeal from a judgment for defend- 
 ant, in an action for the conversion of money 
 received by him in a fiduciary capacity, in which 
 he set up the defence that he was robbed of the 
 money in a railroad car, and the referee before 
 whom the cause was tried found that the evi- 
 dence was not sufficient to establish it as a fact 
 that the defendant bad converted the money, 
 — Held, that, although the evidence report- 
 
 ed was sufficient to create grave doubts as 
 to the fact of the robbery, yet it was not suffi- 
 cient to entitle the plaintiff to recover, and there 
 being no exceptions except to the report of the 
 referee, the judgrhent should be affirmed. Sup. 
 Ct., 1872, Holland v. Hayman, 45 How. 16. 
 
 542. General findings. A party injured by 
 too general a finding by the court below should 
 ask for a more specific one, and if he fails to do 
 so, and the evidence returned shows no error, the 
 judgment will be affirmed on appeal. Sup. Ct., 
 1876, Simmons v. Richardson, 5 Hun, 177. 
 
 '543. Findings sustained. A judgment on 
 report of referee will be affirmed, where it is 
 the necessary and logical sequence of the facts 
 found, and all disputed facts were found on a 
 conflict of evidence. Sup. Ct, 1874, Garlock v. 
 Clark, 3 Hun, 355. 
 
 544. Upon appeal from a judgment on report 
 of a referee, the court can only look at the find- 
 ings, and if they are sustained by the evidence, 
 must affirm the judgment, although such find- 
 ings may be inapplicable to the cause of action 
 stated in the complaint.. N. Y. Supr. Ct., 1875, 
 Anderson v. West, 38 N. Y. Supr. (6 J. & Sp.) 
 441. 
 
 545. If the referee fails to find any fact upon 
 the real cause of action, he may be required, on 
 motion at Special Term, to report further or 
 other findings, or to decide upon the alleged 
 other and only cause of action ; but the ques- 
 tion cannot be raised on appeal from the judg- 
 ment ; nor can the General Term send the case 
 back to be corrected in that respect lb. 
 
 646. The judgment in an action tried before 
 a referee, cannot be disturbed on appeal, where 
 it is purely one of fact Sup. Ct., 1874, Poor 
 v. Bowen, 1 Hun, 122 ; AfE'd, 60 N. Y. (15 Sick.) 
 626. 
 
 547. Where the evidence upon a controverted 
 question of fact is nearly equally balanced, the 
 court cannot on appeal set aside the conclusion 
 deemed by the referee to be sustained by it. 
 Sup. Ct, 1874, Randolph v. Peck, 1 Hun, -138. 
 
 648. Finding unsupported. A judgment on 
 the finding of a referee will be reversed and a 
 new trial ordered, if such finding is unsupported 
 by any evidence ; and if the only evidence to 
 sustain it is that of a witness who so contradicts 
 on cross-examination the testimony given by 
 him on his direct examination as to destroy its 
 force and effect as evidence, it will be treated 
 as if none had been given to sustain the finding. 
 N. Y. C. P., 1873, Townsend v. Peyser, 45 How. 
 211 ; S. C, 14 Abb. N. S. 324 ; 4 Daly, 556. 
 . 549. Where a referee finds facts against un- 
 disputed evidence, and fails to find facts estab- 
 lished by plaintiff's own witness in favor of the 
 defendant, the judgment on his report will be 
 reversed and a new trial ordered. Sup. Ct., 
 1878, Tqft V. Wright, 47 How. 1. 
 
 650. If the findings are not sustained by the 
 evidence the judgment will be reversed. Sup. 
 Ct, 1874, Robinson v. Kalbfleisch, 2 Hun, 683. 
 
 551. A judgment dismissing the plaintiff's 
 complaint based on a want of evidence of cer- 
 tain material facts, will be reversed on appeal, 
 if there was evidence of such facts ; especially, 
 if, upon that evidence, a verdict against the 
 plaintiff would have been unwarranted. N. Y. 
 Supr. Ct, 1871, Sulzbacher v. Davison, 34 N. Y. 
 Supr. (2 J. & Sp.) 145. 
 
 552. Irregularity before referee. If the 
 parties to a case tried before a referee make no 
 objection at the time to his absenting himself 
 during the taking of the evidence, but proceed 
 with the examination, and finally submit all the 
 
APPEAL. 
 
 63 
 
 evidence to him for his decision, the objection 
 to the irregularity is waived, and the judgment 
 entered on his report will not be set aside for 
 that reason. N. Y. Supr. Ct., 1871, Metcalf v. 
 Baker, 11 Abb. N. S. 431; S. C, 84 N. Y. Supr. 
 (2 J. & Sp.) 10. 
 
 668. Lapse of time. To review a finding 
 twenty-one years after it is made, and reverse it 
 for technical errors, is of very doubtful pro- 
 priet}-. Sup. Ct, 1874, Simpson v. McKay, 3 
 Hun, 316. 
 
 564. If permitted to review such a decision, 
 after having once recognized its validity by alle- 
 gations in his complaint, although he afterward, 
 on affidavits that he could disprove the facts 
 found therein, procured leave to strike out such 
 allegations, the party asserting the error must 
 prove it. lb. 
 
 656. Non-conformity to decision. Al- 
 though a judgment gives the ^.elief more mi- 
 nutely than it is stated in the decision, it is not 
 objectionable on that ground so long as it 
 does not enlarge the relief intended to be given, 
 and will hot be reversed for that reason. Sup. 
 Ct., 1872, Applegate v. Morse, 7 Lans. 69. 
 
 566. A judgment may be reversed for non- 
 conformity to the decision of the court as con- 
 tained in its conclusion of law ; but the error 
 may be disregarded on appeal, where it was 
 caused by an occurrence happening after tlie 
 finding and before entry of judgment, which, if 
 it had happened before the trial, would have 
 rendered the judgment proper, and the appellant 
 cannot be benefited by a reversal. N. Y. Supr. 
 Ct., 1873, Stevenson v. Pratt, 35 N. Y. Supr. (3 J. 
 & 8p.) 496. 
 
 557. Order disB.olvinginjuction. An order 
 setting aside an injunction will not be reversed 
 on appeal merely because it should have been 
 in form to dissolve instead of set aside. Sup. 
 Ct. 1872, Town of Middletown v. Rondout and 
 Oswego R. R. Co., 43 How. 481. 
 
 658. Order for neixr trial. On appeal from 
 an order granting a new trial, made at Special 
 Term, it is the duty of the General Term to exam- 
 ine anew the facts and law on which the order 
 was granted, and to reverse the order if not 
 sustained by the facts. N. Y. Supr. Ct., 1872, 
 Woolfy. Jacobs, 46 How. 403 ; S. C, 34 N. Y. Supr. 
 (2J. &Sp.) 509. 
 
 569! Receiver, appointment of. It is suf- 
 ficient ground for affirming an. order appointing 
 a receiver of the rents and profits of mortgaged 
 premises, after default and pending a foreclosure 
 of the mortgage, in pursuance of an express 
 stipulation entitling the plaintiff to such receiver, 
 that the defense of usury is set up merely on 
 information and belief, and is not positively 
 sworn to. Sup. Ct., 1874, Knickerboclcer Life Ins. 
 Co. V. mil, 2 Hun, 680. - 
 
 660. Refusal of adjournment. The refusal 
 of an application for an adjournment on account 
 of the absence of a witness, made on defend- 
 ant's affidavit, wliich does not contain any alle- 
 gation that he cannot safely proceed to trial 
 without the witness, nor assert the materiality 
 of his testimony upon any knowledge of what 
 it would be, but merely upon deponent's belief 
 and the advice of counsel, not accompanied by 
 any proof that counsel knew what testimony 
 the witness would give, is not an error for which 
 the judgment will be disturbed. Sup. Ct., 1870, 
 Burgett v. Edwards, 4 Lans. 193. 
 
 661. Refusal of nonsuit. A judgment will 
 not be reversed on appeal because of the refusal 
 of the court to grant a nonsuit or dismiss 
 the complaint, although the plaintiff, when he 
 
 rested, had not proved his case, if the necessary 
 proof was afterward supplied by either party in 
 the progress of the trial. N. Y. Supr. Ct., 1874, 
 Smith V. Isaacs, 37 N. Y. Supr. (6 J. & Sp.) 3. 
 
 562. Variance. A judgment rendered, after 
 the denial of a motion for a nonsuit, will not be 
 set aside and a new trial granted on the ground 
 that the action sounds in tort, but the recovery 
 was upon contract, where the motion for a non- 
 suit was not made on that distinct ground, since 
 the defect might then have been amended if 
 pointed out. Sup. Ct., 1874, Veeder v. Cootey, 2 
 Hun, 74. 
 
 563. Verdict against evidence. A verdict 
 should not be set aside as against evidence, un- 
 less it would have been proper for the court to 
 have directed a verdict the other way ; and that 
 would be proper only wliere tiiere is no such 
 conflict of evidence as to require a submission 
 to the jury, or clear preponderance of proof 
 on one side as to leave a verdict on the 
 other side unsupported. N. Y. Supr. Ct., 1875, 
 Insurance Co. of North America v. Gardner, 39 
 N. Y. Supr. (7 J. & Sp.) 543. 
 
 664. Evidence is not to be regarded as undis- 
 puted, although not specifically controverted, 
 where there is enough in the other facts proved 
 to raise a doubt as to its correctness ; and, in 
 such a case, the judgment should not be reversed 
 as against evidence. N. Y. Supr. Ct., 1876, John- 
 son V. Williams, 39 N. Y. Supr. (7 J. & Sp.) 547. 
 
 566. Wrong reason given. A correct de- 
 cision is not to be reversed because the reason 
 upon which it may have been placed may prove 
 to be untenable. Sup. Ct., 1874, Stevens v. Coi-n 
 Exchange Bank, 48 How. 351 ; S. C, 3 Hun. 147. 
 So held as to the denial of an injunction based 
 on questions of law when it should have been 
 upon the facts. Sup. Ct., 1872, Town of Middle- 
 town V. Rondout and Os/vego R. R. Co., 43 How. 481. 
 
 566. A mistake of the court in basing, the 
 admission of competent evidence upon an unten- 
 able ground, is not sufficient reason for reversing 
 the judgment. Sup. Ct, 1866, BossUy. Elmore, 
 65 Barb. 627. 
 
 667. Where a nonsuit, moved for upon the 
 whole case and evidence, is denied, and the right 
 judgment or decision is rendered, it will not, as 
 a general rule, be set aside on exceptions to such 
 a decision, because an erroneous reason was 
 given for denying the motion ; but if the point 
 presented for the motion be a sound one, it must 
 be clearly avoided or overreached by other clear 
 facts or points in the case, or else an exception 
 to the erroneous ruling must prevail. Sup. Ct., 
 1869, Shoemaker v. Glens Falls Ins. Co., 60 
 Barb. 84. 
 
 10. Costs. 
 
 568. Appeal from County Court. On ap- 
 peal by defendant from the judgment of the 
 County Court, in a case originating in a justice's 
 court, and also from an order of the County 
 Court denying a new trial, where the Supreme 
 Court affirms in part and reverses in part, 
 "with cost of appeal to the appellants," they 
 are entitled to the costs and disbursements of 
 the appeal from the order as well as that from 
 the judgment, viz : $60 on each appeal, and 
 disbursements in the Supreme Court Sup. Ct 
 Sp. T., 1873, Lennox v. Eldred, 65 Barb. 626. 
 
 569. It is improper in such a case to tax $10 
 costs of motion for a new trial in the County 
 Court, or the costs of the justice's court or of 
 the County Court. lb. 
 
 670. Under section 806 of the Code, the 
 
64 
 
 APPEAL. 
 
 General Term has the right, as well as the power, 
 to exercise its discretion in respect to the costs 
 of appeals tlierein, and its order is binding until 
 modified. lb. 
 
 571. Two appeals. Where an appeal is taken 
 from an order denying a new trial, and subse- 
 quently, after the entry of judgment, a second 
 appeal from such judgment, and both appeals 
 are contained in one printed case and argued 
 and decided together, the successful party is 
 entitled to but one bill of costs. Sup. Ct., 
 1874, Buliard v. PearsaU, 46 How. 383 ; Aff'd 
 by Ct. App., lb. 530. S. P., AUen v. American 
 Nat. Bank, 10 Abb. N. S. 331. 
 
 672. An appeal from an order denying motion 
 on the judge's minutes for a new trial is a separate 
 and distinct proceeding from an appeal from a 
 judgment, presenting different questions for re- 
 view, and, although heard at the same time and 
 on the same papers, the New York Superior 
 Court will allow costs of two appeals. N. T. 
 Supr. Ct., 1871, Matthews r. Wood, 10 Abb. N. 
 S. 328 ; S. C, 33 N. T. Supr. (IJ. & Sp.) 336. 
 
 673. Offer to reduce damages. Wlierethe 
 respondent, on discovering, soon after the appeal 
 is taken, that too large a sum has been allowed 
 him as damages, offers to deduct the excess, 
 and the appellant refuses, the court, in modify- 
 ing the judgment in thafrrespect, will give costs 
 to neither party. N. Y; Supr. Ct.,- 1875, Kemple 
 V. Darrow, 39 N. Y. Supr. (7 J. & Sp.) 447. 
 
 674. Order on demurrer. Full costs are 
 given upon an appeal from an order or judgment 
 sustaining or overruling a demurrer to an entire 
 pleading, when no leave is given to plead anew. 
 Sup. Ct., 1874, Hoffman v. Barry, 2 Hun, 52. 
 
 575. Ten dollars costs of appeal are given 
 where the order sustains or overrules a demurrer 
 to a part only of a pleading. lb. 
 
 576. Ten dollars costs are also given on ap- 
 peal where the order sustains or overrules a 
 demurrer to an entire pleading, but gives leave 
 to plead anew, provided the party pleads' anew 
 within the time given. lb. 
 
 577. When the order is final, or becomes so 
 by the failure of the party to plead anew within 
 the time given, so as to determine the rights of 
 the parties in that action, full costs of appeal will 
 be given to the party prevailing on the appeal. 
 lb. 
 
 578. While the order is interlocutory, and 
 does not determine the final rights of the par- 
 ties, it is an order and not a judgment, and $10 
 costs only will be allowed on appeal. lb. 
 
 11. Practice in general. 
 
 579. The printed case on appeal should 
 contain only that which is material, and exclude 
 all else. When rule 43 is not strictly observed, 
 the case should either be dismissed or sent back 
 for re-settlement at the expense of the attorney 
 in fault. Sup Ct., 1875, ifoan v. Wavle, 4 Hun, 
 804. 
 
 580. Exception by respondent. An ex- 
 ception taken at the trial by the respondent 
 ought not to be incorporated in the printed case 
 on appeal, unless its insertion can be justified by 
 the existence of a special reason therefor. N. 
 Y. Supr. Ct., 1S10, Dabneyy. Stevens, WAhh.'S. 
 S. 89; S. C, 2 Sweeny, 415; Aff'd, 46 N. Y. (1 
 Sick.) 681. 
 
 681. Papers. On appeal, the General Term 
 ought to hare placed before it all the papers 
 on which the order appealed from is based. 
 Thus, on appeal from an order denying a motion 
 for an extra allowance, based in part upon a 
 
 remittitur from the Court of Appeals, such remit- 
 titur should be before the appellate court. N. 
 Y. Supr. Ct., 1876, Eldridge v. Strenz, 39 N. Y. 
 Supr. (7 J. & Sp.) 295. 
 
 682. Amendment. Leave will not be granted 
 to amend appeal papers after argument and de- 
 cision at the General Term, on the ground that 
 the correction of a mistake therein would show 
 that a point decided against the applicant had 
 been waived, when it appears that the point was 
 argued, and the applicant supposed it not well 
 taken, until it was decided against him. Sup. 
 Ct., 1874, People ex rel. Baker v. Board of Ap- 
 portionment, 1 Hun, 123. 
 
 683. Any errors in the printed case must be 
 corrected by proper application to the court at 
 Special Term, before the case is brought on for 
 argument, otherwise they will be disregarded. 
 Sup. Ct., 1874, Hackley v. Draper, 2 Hun, 523 ; 
 Aff'd by Ct. App. 
 
 584. Calendar. Where, as a part of the con- 
 ditions of opening his default, it was the duty 
 of a party to see that the cause was restored to 
 tlie calendar of the General Term, and_ he ne- 
 glected to do so,— Held, that it was regular for the 
 adverse party, finding it omitted from such cal- 
 endar at the subsequent General Term, to pro- 
 cure it to be restored, and when regularly called, 
 take judgment by default, if the former party 
 fails to appear. N. Y. C. P., Sp. T., 1871, Luft 
 V. Graham, 44 How. 162 ; S. C. 13 Abb. N. S. 
 175. 
 
 585. The points of counsel for appel- 
 lants should reasonably direct the attention of 
 the appellate court to such features of the case, 
 at least, as most plainly present the questions 
 upon which the reversal of the judgment is 
 asked, otherwise the court may refuse to ex- 
 amine such questions at length. Brooklyn City 
 Ct., 1872, Landers v. Staten Island R. B. Co., 13 
 Abb. N. S. 338. 
 
 586. Death of party. Where a party dies 
 pending an appeal, the same cannot regularly 
 be determined until the representatives of such 
 party are properly before the court. Sup. Ct., 
 1874, Jayv. DeGroot, 1 Hun, 118. 
 
 587. Relief granted. The General Term, 
 on appeal from an order of the Special Term, 
 may grant any affirmative relief to the party 
 opposing the motion that the Special Term might 
 have granted. Ct. App., 1871, Bennett v. Lake, 
 47 N. Y. {2 Sick.) 93. 
 
 588. The General Term not only has the 
 power, but it is its duty, where the facts estab- 
 lished require such a judgment, to affirm the 
 judgment below as to part of the defendants 
 and reverse it as to others. Ct. App., 1812, Hub- 
 bell V. Meigs, 50 N. Y. (6 Sick.) 480. 
 
 589. In an action against two defendants, 
 alleging fraudulent representations and collusion 
 whereby the plaintiff had been induced to pur- 
 chase worthless stock, and a tender of the stock 
 to one of them, and seeking to recover back the 
 money paid, a judgment for the plaintiff against 
 the defendants jointly, upon insufficient evi- 
 dence of collusion and joint interest, will not be 
 severed on appeal and affirmed as to the de- 
 fendant shown to be liable, and set aside as 
 to the other, or where each is equally liable, 
 affirmed against such defendant as the plaintiff 
 might elect, where the complaint does not contain 
 the averments necessary in an action for fraud, 
 as to all the defendants, nor such as would be 
 sufficient in an action for the purchase money 
 as to one of them. Sup. Ct. 1870, Hubbell v. 
 Alden, 4 Lans. 214. 
 
 590. The General Term, on appeal from a 
 
APPEAL. 
 
 65 
 
 judgment, has power to make a conditional 
 order, reversing unless the plaintiff stipulates 
 for a reduction of the damages, and in case he 
 does so stipulate, affirming the judgment as 
 modified. Com. App., 1873, Hayden v. Florence 
 Sewing Mack. Co., 54 N. Y. (9 Sick.) 221. 
 
 691. In special proceedings. The intent of 
 chapter 270, Laws of 1854, was to assiniilate ap- 
 peals in special proceedings to appeals from 
 judgments in actions; and upon a reversal by 
 the General Term of a decision of the Special 
 Term for the want of evidence which may be 
 supplied on a further hearing, a new trial should 
 be ordered. Ct. App., 1876, In matter of Ander- 
 son, 60 N. Y. (16 Sick.) 487. 
 
 .692. Upon appeal from an order of the 
 Special TerOi reducing the amount of damages 
 assessed by commissioners for private property 
 taken for public use, the Gteneral Term has 
 power, and it is its duty to make such an order 
 as the Special Term ought to have made, setting 
 aside the assessment, and appointing new com- 
 missioners. Sup. Ct., 1871, Rochester Waterworks 
 Co. V. Wood, 41 How. 63 ; S. C, 60 Barb. 137. 
 
 693. Final judgment. Upon reversing the 
 judgment appealed from, the General Term has 
 no power to order a final judgment for damages 
 in favor of the appellant, unless the facts were 
 agreed to by the parties or found by the court 
 or a jury on the trial below. Com. App., 1874, 
 Cuff v. Borland, 67 N. Y. (12 Sick.) 660 ; Rev'g 
 S. C, 65 Barb. 481. 
 
 694. Upon appeal from a judgment of the 
 Special Term dismissing the complaint in an 
 action for specific performance of a contract for 
 the sale of lands, because such contract was too 
 objectionable to be enforced, the General Term, 
 on reversing that judgment, cannot properly 
 render judgment in favor of the plaintiff for the 
 amount paid by him on the contract, found by 
 the court below, that not being necessarily the 
 limit of the damages, but it should grant a new 
 trial. lb. 
 
 595. Where, by the death of the defendant, 
 the only available evidence the plaintiff had to 
 establish his case was rendered incompetent, 
 the General Term ordered the proper judgment 
 instead of a new trial. Sup. Ct., 1875, Baker v. 
 Lever, 6 Hun, 114 
 
 m. Appbai/S psou County Couki to Su- 
 
 PSEHB COUBT. 
 
 696. In summary proceedings. No ap- 
 peal will lie from the judgment of the County 
 Court in summary proceedings by a landlord to 
 remove a tenant. Sup Ct., 1876, Carpenter v. 
 Green, 4 Hun, 416. 
 
 697. On case saA exceptions. An appeal 
 may be taken from a judgment of the County 
 Court in an action commenced therein, upon a 
 case and exceptions, without first moving in 
 that court for a new trial. Sup. Ct., 1876, Beat- 
 ty V. Myers, 4 Hun, 266. 
 
 698. Review in Supreme Court. Findings 
 of fact by a jury upon trial in the County Court 
 of an action originating in a justice's court, 
 affirmed by that court on a motion for a new 
 trial, cannot be reviewed by the Supreme Court 
 on appeal. As to such cases, that court occu- 
 pies the same position as the Court of Appeals in 
 respect to findings of fact by a jury at the cir- 
 cuit. Sup. Ct., 1876, Quinn v. Weed, 5 Hun, 860. 
 
 699. The Supreme Court will not, on ap- 
 peal from the County Court, reverse an order of 
 that court granting a new trial on a case and 
 exesptions, unless it clearly appears that th« 
 
 5 
 
 court below has committed some error of law. 
 Sup. Ct., 1871, Osborn v. Nelson, 69 Barb. 375. 
 
 600. On appeal from a judgment of tlie 
 County Court reversing the judgment of a jus- 
 tice's court for error of law, in a case where the 
 defendant did not move for a nonsuit, and ap- 
 pealed only on questions of law, the appellate 
 court will not be justified in reversing the judg- 
 ment fbr the insufficiency of the evidence. 
 Sup. Ct., 1875, Ross v. Calby, 3 Hun, 646. 
 
 601. The admission or rejection of evi- 
 dence to show fruitless efforts on the part of 
 the plaintiff to procure the attendance of a wit- 
 ness whom he might reasonably be expected to 
 produce, cannot affect the determination of the 
 issues, and, therefore, is not ground for the re- 
 versal of the judgment. lb. 
 
 IV. Appbalb prom Justices' Cocets to 
 
 CoUNIT CC>X7RTS. 
 1. Notice of Appeal ; Undertaking, 
 
 602. Signed on back. If the notice indi- 
 cates that the defendant in the judgment ap- 
 peals to the County Court, giving the grounds 
 upon which the appeal is founded, and such no- 
 tice is either signed at the end, or superscribed 
 on the back, by the appellant or by some per- 
 son as his attorney, it will be sufficient, if duly 
 served. Sup. Ct., 1874, Burrows v. Norton, 2 
 Hun, 650 ; S. C, 48 How. 132. 
 
 603. It is the duty of an appellant who alleges 
 a want of jurisdiction in the justice, to state it 
 in his notice of appeal, so that it may be sliown 
 by the return whether the allegation be true, 
 since, when attached directly on appeal, juris- 
 diction can be shown only by the record. Sup. 
 Ct, 1872, Avery v. Woodbeck, 5 Lans. 498 ; S. C, 
 .62 Barb. 657. 
 
 604. Service of notice of appeal on the at- 
 torney or agent of the respondent, on account of 
 the non-residence or absence of tlie respondent, 
 is allowed by section 354 of the Code only wliere 
 the attorney or agent is a resident of the coun- 
 ty. Schuyler Co. Ct., 1869, Lake v. Kels, 11 
 Abb. N. S. 87. 
 
 605. Where both the respondent and his attor- 
 ney are non-residents of the county where the 
 trial was had, service on the attorney in his own 
 county is not sufficient, but it seems, personal ser- 
 vice on the respondent, though a non-resident, 
 would be sufficient. lb. 
 
 606. On appeal from a judgment in favor of 
 two partners, service of notice of appeal on one 
 of them is sufficient. Sup. Ct., 1874, Miller v. 
 Perrine, 1 Hun, 620. 
 
 607. TTndertaking. An appeal taken in a 
 case in which, by section 352 of the Code, a new 
 trial must be had in the appellate court, without 
 giving the security required by section 356, must 
 be dismissed, unless the appellate court in its dis- 
 cretion receives the security nunc pro tunc. Schuy- 
 ler Co. Ct., 1869, Lake v. Kels, 11 Abb. N. S. 37. 
 
 608. Where a new trial is not so required, the 
 omission to give security does not affect the 
 validity of the appeal, but merely the stay. lb. 
 
 609. Form. The undertaking upon appeal 
 from the General Term of the Marine Court to 
 the Court of Common Pleas should be in the form 
 prescribed by sections 864 and 866 of the Code. 
 N. Y. C. P., Sp. T., 1874, Holbrook v. Brennan, 48 
 How. 192. 
 
 » 
 2. Practice on Appeal. 
 
 610. Amendment. Th« County Court haf 
 
66 
 
 APPEAL. 
 
 no authority to grant an amendment of the com- 
 plaint, on appeal from a justice's court, so as to 
 increase tlie damages claimed to a sum equal to 
 the finding, witliout imposing as terms therefor 
 the relinquishment of the verdict, payment of 
 costs of appeal and a consent to a new trial. 
 Sup. Ct., 1871, Coulter v. American Merchants 
 Ua. Express Co., 6 Lans. 67. 
 
 611. It is not an aCuse of discretion for the 
 County Court, in a case appealed from a jus- 
 tice's court, to refuse to allow an amendment of 
 the complaint which changes the nature of the 
 action from one against the defendants individu- 
 ally to one against them as trustees of a school 
 district. Sup. Ct., 1871, Shuler v. Meyers, 5 
 Lans. 170. 
 
 612. Cross appeals from the judgment of a 
 justice's court, by the plaintiff on the ground 
 that tlie damages were too small, and by the de- 
 fendant on the ground that no damages should 
 have been given, should be heard and decided 
 together, and judgment and costs given to the 
 party showing himself right in his appeal. Sup. 
 Ct., 1875, Jmes v. Owen, 6 Hun, 339. 
 
 613. A ne'wr trial may be had in the County 
 Court on appeal from a justice's court, under 
 the provisions of section 352 of the Code, as 
 amended in 1862, in all cases, without reference 
 to the form of the action, wliere the claim or 
 claims for judgment made by the pleadings of 
 either party exceed the sum of fifty dollars ; 
 and in actions for the recovery of specific per- 
 sonal property such a new trial may also be 
 had, if the damages actually recovered, added 
 to tlie assessed value of the property, exceeded 
 that sum, although no claim exceeding it was 
 made by the pleadings. Sup. Ct., 1870, Merrill 
 v. Pattison, 44 How. 289. 
 
 614. Striking out answer, ihe County 
 Court has no right to strike out an answer, or 
 part of an answer, in an action which has been 
 tried in a justice's court, even though it may 
 set up a claim fictitious in amount, for the pur- 
 pose of entitling the defendant to a new trial on 
 appeal ; but the pleadings must stand as in the 
 court below, because upon them depend certain 
 rights of the parties in the appellate court. Sup. 
 Ct., 1875, Thompson v. Pine, 5 Hun, 647. 
 
 3. Decision, Grounds for, 
 
 61-5. Specified in notice. Upon appeal to 
 the Countj' Court from a judgment rendered by 
 a juetice of the peace, that court can consider 
 only those grounds which are particiilarly taken 
 and specified in the notice of appeal. Sup. Ct., 
 1874, Fowler y. Milliman, 2 Hun, 408. 
 
 616. On appeal, the question of the jurisdic- 
 tion of the justice's court cannot be raised, if 
 not specified as ground of error in the notice. 
 Sup. Ct„ 1871, Avery V. Woodbeck, b Laaa. i98 ; 
 S. C, 62 Barb. 557. 
 
 617. Where the notice of appeal did not spe- 
 cify any objection to the jurisdiction, but the 
 return stated that "the summons was personally 
 served on the 20th day of May, 1870, on defend- 
 ant, by W H B, constable, fees $4.25," the ap- 
 pellate court will infer that the constable so re- 
 turned, lb. 
 
 618. An appellant, upon appeal from justice 
 court upon the law only, cannot insist upon any 
 error not specified in the notice of appeal. So 
 held, where the notice of appeal failed to specify 
 the evidence claimed to be improper, illegal and 
 irrelevant, or in what particular the judgment is 
 against the law and evidence in the case. Greene 
 Go. Ct., 1874, Slingerland v. Bronk, 47 JQow. 408. 
 
 619. Admission of evidence. In an action 
 where the evidence shows that the terms of a 
 parol contract between the parties are in dispute, 
 tlie fintling of the justice in accordance with the 
 evidence and claim of one of the parties will 
 not be disturbed, unless there has been some 
 error in the admission or rejection of evidence ; 
 and the admission of evidence which is proper 
 in view of that finding, though it would have 
 been improper had he found those terms as 
 claimed by the adverse party, is not such error. 
 Otsego Co. Ct., Kinney v. Pudney, 46 How. 258. 
 
 620. Appearance by constable. A defend- 
 ant, on appeal from a judgment against him, 
 cannot take advantage of the fact that the con- 
 stable who served the summons appeared and 
 advocated the cause .for him on the trial, with- 
 out proof of authority or objection on the part 
 of the plaintiff who appeared in person. Greene 
 Co. Ct., 1864, Eldredge v. McNulty, 45 How. 440. 
 
 621. Errors of fact. A defendant who 
 founds his appeal upon errors of fact, to be es- 
 tablished by afiSdavits and other proofs, imder 
 section 366 of the Code, and relies upon the 
 want of authority to appear for him of the at- 
 torney who appeared below, must show that fact 
 by affidavits or testimony in the County Court. 
 The fact that the appeal papers show that such 
 attorney was not required to, and did not prove 
 his authority, is not sufficient. Sup. Ct., 1872, 
 Sperry v. Reynolds, 5 Lans. 407. 
 
 622. No objection beloiv. Where it ap- 
 pears that a justice's docket was offered and re- 
 ceived in evidence below as proof of a judgment 
 rendered in an action commenced by short sum- 
 mons, and no objection raised to it or to the 
 validity of the judgment because of the want 
 of evidence that the necessary preliminary proof 
 was given before the summons was issued, the 
 party will be presumed to have waived that ob- 
 jection, and the judgment should not be re- 
 versed on that ground. Sup. Gt., 1871, Rue v. 
 Perry, 41 How. 385 ; S. C, 63 Barb. 40. 
 
 628. Refusal of attachment. It is not an 
 error for which a justice's judgment will be re- 
 versed, to refuse an attachment for a witness, 
 on an affidavit which alleges the materiality of 
 the witness only on deponent's belief and the ad- 
 vice of counsel, but does not allege that the 
 party cannot safely proceed to trial without 
 him, even though it shows due service of a sub- 
 poena upon him. Sup. Ct., 1870, Burgett v. Ed- 
 wards, 4 Lans. 193. 
 
 624. Want of jurisdiction. On appeal, 
 under section 366 of the Code, from a judgment 
 rendered by default without notice or service of 
 summons on the defendant, or after defective 
 service, the defendant may by affidavit allege 
 the defect or want of service, and if he estab- 
 lishes it the court will grant relief against such 
 judgment. Sup. Ct., 1862, Waring v. McKih- 
 ley, 6^ Barb. 612. 
 
 625. It is not necessary, for that purpose, 
 that the appellant should show affirmatively 
 that he has a valid defense, or that manifest in- 
 justice has been done. lb. 
 
 626. Weight of evidence. Where there 
 is a conflict of evidence in a case tried before or 
 submitted to the decision of a justice of the 
 peae^, it is for him to determine which is most 
 credible ; and if there is sufficient evidence, in 
 case it was believed by him, to sustain his 
 judgment, it will not be reversed on appeal, on 
 the ground that it is not sustained by the evi- 
 dence. Sup. Ct., 1871, Alford v. Stevens, 68 
 Barb. 29. 
 
 627. Reversal as to one defendant. On 
 
APPEAL. 
 
 67 
 
 appeal from a joint judgment against several in 
 an action of tort, the court lias power to reverse 
 it as to one or more of the defendants whose lia- 
 bility was not established, and affirm it as to the 
 others. Sup. Ct., 1872, Van Slyck v. Snell, 6 
 Lans. 299. 
 
 4. Costs. 
 
 628. Case transferred from County to 
 Supreme Court. If a case appealed from a 
 justice to the County Court is certified to the 
 Supreme Court because of the disqualification 
 of the County Judge, it is to be deemed still in 
 the County Court as respects the allowance of 
 costs ; and upon appeal from . an order of the 
 Supreme Court granting a new trial in such a 
 case, the prevailing party is entitled to only 
 ten dollars costs, as on appeal from an order of 
 the County Court. Sup. Ct.; 1874, McLaughlin 
 V. Smith, 8 Han, 250. 
 
 629. More favorable judgment. In or- 
 der to entitle an appellant to costs on the ground 
 that the judgment is more favorable to him, to 
 the amount of ten dollars or more, than in the 
 court below, he must state in his notice of ap- 
 peal the modification desired by him with pre- 
 cision and certainty, so that the respondent may 
 know what modification or reduction the appel- 
 lant will be satisfied with. Sup. Ct., 1870, Put- 
 nam V. Heath, 41 How. 262. 
 
 630. Where a defendant appealing from a 
 judgment against him for $135.78 damages and 
 $13.05 costs, in his notice of appeal specified 
 the following, among other particulars, in which 
 he claimed the judgment should be more favor- 
 able to him, viz. : The judgment should have 
 been more favorable to the defendant in that 
 damages should not have been but $26. Judg- 
 ment should have been more favorable to de- 
 fendant in that damages should have been not 
 to exceed $100, and should not have been more 
 tliat $76, and the respondent recovered $16.61 
 less in the County Court than in the court be- 
 low ; — Held, that the respondent was entitled to 
 costs, the statement in the notice of appeal be- 
 ing fatally defective. lb. 
 
 631. The utmost precision in the statement is 
 not required, but it is sufficient if the modifica- 
 tion desired is clearly and precisely stated. If 
 the appellant fails to state the precise sum to 
 which the judgment should be reduced, the re- 
 spondent is not bound to make an offer to re - 
 duce it in order to entitle himself to costs, lb. 
 
 632. It was not the intention to require the 
 respondent to offer to modify precisely as 
 claimed in the notice of appeal, but it must be 
 to modify in the respects mentioned in such no- 
 tice, lb. 
 
 633. A notice of appeal, which among other 
 grounds of error, states that " the judgment 
 should not have been for more than $50 dam- 
 ages and $5 costs," sufficiently complies with 
 the requisition of the statute, that it shall state 
 " what should have been the amount," to enti- 
 tle the defendant to costs of appeal, in case the 
 plaintiff's recovery is reduced ten dollars or 
 more. Sup. Ct., 1873, Kirkwood v. Griffin, 64 
 Barb. 666. 
 
 634. The first subdivision of section 371 of 
 the Code applies to all cases of appeal from the 
 judgment of a justice's court where a new trial 
 is to be had, and is not limited'to cases depend- 
 ing on questions of law only. Sup. Ct., 1873, 
 Bixby V. Warden, 46 How. 239. 
 
 636. A notice of appeal which states as one 
 ground thereof " that the judgment should have 
 
 been more favorable to the defendant in this, to 
 wit : it should not have been for a larger 
 amount than ten dollars," is sufficient to entitle 
 the defendant to costs of appeal in the County 
 and Supreme Courts in case the judgment in 
 the County Court shall be mere favorable to 
 him to the amoun.t of ten dollars. lb. 
 
 636. It is a modification, not a reversal, of the 
 judgment below, which is contemplated by sec- 
 tion 371 of the Code in determining the question 
 of costs ; and it is not sufficient, in order to en- 
 title the appellant to costs in case of a more 
 favorably judgment to the amount of $10, that 
 he should claim a reversal of the judgment in 
 his notice of appeal, but he must specify the 
 particulars in which he claims that the judgment 
 should have been more favorable to him. Sup. 
 Ct., 1872, Moran v. McClearns, 48 How. 77. 
 
 637. A notice of appeal which specifies as 
 grounds of the appeal that : 1. The judgment 
 is against the weight of evidence. 2. It is not 
 supported by the evidence. 8. On the evidence 
 the plaintiff was not entitled to recover. 4. The 
 judgment is contrary to law upon the evi- 
 dence; suggests no modification of tlie judgment 
 as a ground for an offer by the respondent, but 
 in effect claims a reversal of the judgment, and 
 does not impair the right of the respondent to 
 costs if he recovers judgment on the appeal. lb. 
 
 638. A statement in a notice of appeal by the 
 plaintiff, that " the judgment should have been 
 in his favor and against the defendant, and there 
 was no evidence to warrant the judgment," is 
 not sufficient to bring the case within the excep- 
 tions of section 371, and hence the prevailing 
 party on the appeal is entitled to costs. Sup. 
 Ct., 1872, Colvert v. Hall, 48 How. 80. 
 
 639. A notice of appeal by defendant, which 
 alleges that the judgment of the justice for 
 $169.25 damages and $8.05 against him, should 
 have been more favorable to him in the follow- 
 ing respects ; 1. It should have been in his 
 favor and against the plaintiffs, for $200. 2. It 
 should liave been in his favor, and against the 
 plaintiffs, for damages and costs. 3. It should 
 have been for a less sum, to wit, for only $50, 
 against appellant. 4. It should have been for a 
 less sum, to wit, for only $75 ; is not a com- 
 pliance with the provisions of section 371 of the 
 Code, to deprive the respondent of costs upon 
 his recovering judgment, though for $13.98 less 
 than his recovery before the justice. Sup. Ct., 
 1872, Wadley v. Davis,AZ How. 82. 
 
 640. A notice of appeal by defendant from a 
 judgment against him for $95 damages and $6 
 costs, stated that " said judgment should not have 
 been for more than $25 damages, besides costs," 
 and the plaintiff did not serve any offer to mod- 
 ify the judgment of the justice. The plaintiff 
 recovered judgment in the County Court for 
 only $49, damages, but that court gave him costs, 
 and its order was affirmed by the Supreme Court 
 on appeal. The Court of Appeals, however, on 
 dismissing an appeal from the last order, held 
 unanimously that the defendant was entitled to 
 costs in the County Court, because the plaintiff 
 did not serve an offer to modify the judgment. 
 The Supreme Court, thereupon.out of respect to 
 the Court of Appeals, although not absolutely 
 controlled by such opinion, granted a rehearing, 
 and reversed the order of the County Court. Sup. 
 Ct., 1872, Younghanse v. Fingar, 43 How. 259 ; 
 S. C, 63 Barb. 299 ; 47 N. Y. (2 Sick.) 99. 
 
 641. The provision of section 371 of the Code, 
 allowing costs to the appellant from a justice's 
 court where the judgment of the appellate 
 court ii more favorable to him by the amount 
 
68 
 
 APPEAL— APPEARANCE. 
 
 of at least ten dollars, refers to tlie juagment ap- 
 pealed from as it stood at the time of tlie appeal, 
 and not as it would be with tlie addition of in- 
 terest to tlie time of the judgment in the ap- 
 pellate court. Sup. Ct., 1870, Humiston v. Bal- 
 lard, 63 Barb. 9. Tlie damages recovered, not 
 includhig interest, must be reduced at least ten 
 dollars. Ct. App., 1871, Piki v. Johnson, 47 N. 
 Y (2 Sick.) 1. 
 
 (542. Prevailing party. On appeal by the 
 phiiiitiff from a judgment in favor of the de- 
 fendant for the amount of liis counterclaim, the 
 jury in the County Court rendered a verdict of 
 no cause of action, — Held, that the defendant 
 not being bound to make any offer, was still the 
 prevailing party although he did not succeed in 
 establishing his counterclaim, and was therefore 
 entitled to the costs of the action. Sup. Ct., 
 1873, Church v. Miller, 46 How^ 625. 
 
 V. Appeals fbom Sukkogates' Courts. 
 
 643. Security. An appeal from an order or 
 decree of a Surrogate is ineffectual for any pur- 
 pose, if security for costs of appeal is not given 
 as required by 2 R. S. 610, section 108 (2 Edm. 
 Stats. 633) ; and the court can grant no relief, 
 but must dismiss the appeal. Ct. App., 1872, 
 Spotts V. Dumesnil, 12 Abb. N. S. 117. S. P., 
 Dumesnil v. Spotts, id. 128, n; S. C. sub nOMf In 
 matter of Dumesnil, 47 N. Y. (2 Sick.) 677. 
 
 644. The requirement of such security is not 
 repealed as to the county of New York by the 
 provision of section 12, chapter 359, Laws 1870, 
 authorizing the surrogate to require a deposit of 
 money before appealing. lb. 
 
 645. The bond given on an appeal from an or- 
 der of the Surrogate to the Supreme Court, under 
 2 R. S. 610, section 108 (2 Edm. Stats. 638), 
 should run to the respondent alone. One run- 
 ning in the alternative to the people of the State 
 or to the respondent is irregular and insufficient. 
 Ct. App., 1871, Marviny. Marvin, 11 Abb. N. S. 
 97. 
 
 646. Such bond may however be amended by 
 the court, even upon the hearing of respondent's 
 motion to dismiss the appeal on the ground of 
 such defect. lb. 
 
 647. Who may appeal. An appellant who 
 accepts costs paid in pursuance of an order dis- 
 missing his appeal on condition of the respond- 
 ent's consenting to a modification of the decree 
 appealed from, and paying costs of the motion, 
 cannot thereafter appeal to the Court of Appeals 
 from such order. lb. 
 
 648. Legatees who do not appear in the pro- 
 ceedings for the probate of a will, cease to be 
 interested parties when a final decree is rendered 
 declaring the invalidity of the instrument pro- 
 pounded as a will, and cannot appeal from a 
 subsequent order of the Surrogate, annulling the 
 record of the will, and awarding costs against 
 the executor, and directing him to file an in- 
 ventory of the intestate's effects which have come 
 to his hands. The executor represents them, 
 and they are bound by his acts. lb. 
 
 649. The statute vested in the Surrogate a 
 discretionary power as to ordering payment of 
 costs and expenses, which is not made review- 
 able by any other court. lb. 
 
 650. Presumption. If, on appeal from the 
 decree of a Surrogate, the will is not returned 
 with the papers, the presumptions are against 
 the appellant. Sup. Ct., 1875, Wallace v. Storry, 
 4 Hun, 791. 
 
 651. Wliat revie'wed on. Appeals from 
 Surrogate's Court are not affected by the Code ; 
 
 but are still governed by the provisions of the 
 Revised Statutes, save as affected by changes 
 in the organization of the judiciary made by 
 subsequent constitutional amendments, and by 
 the provisions of the judiciary acts consequent 
 thereon -(chapter 281, Laws of 1847; chapter 
 203, Laws of 1871); hence, on appeal from a 
 judgment affirming the decree of a Surrogate, 
 admitting a will to probate, the Court of Appeals 
 may review questions of fact. Ct. App., 1873, 
 Rowland v. Taylm; 53 N. Y. (8 Sick.) 627. 
 
 652. If, upon appeal from the decree of a Sur- 
 rogate on an accounting by administrators, the 
 items, vouchers and evidence of the expenses al- 
 lowed are not returned, but the Surrogate certi- 
 fies that they were presented to him in detail 
 and duly verified, proved, adjusted and allowed 
 by him at a specified sum, the appellate court 
 must presume them to be correct and cannot re- 
 view them. The party desiring a review thereof 
 should have secured a full return by the Surro- 
 gate. Sup. Ct., 1876, Hannahs v. Hannahs, 6 
 Hun, 644. 
 
 653. Upon appeal from an order of the Sur- 
 rogate directing the payment of money to the 
 widow of a decedent, the whole caise is to be ex- 
 amined by the appellate court, as well upon the 
 facts as upon the law, so far as questions are 
 presented by the appeal. Sup. Ct., 1874, Gil- 
 man V. Gilman, 3 Hun, 22. 
 
 664. Where such order directs the payment 
 of a gross sum, in full satisfaction of the claim 
 of the widow and the fees of her counsel, and it 
 appears that the fees of the counsel had not been 
 inquired into or ascertained prior to the making 
 of the order, it should be reversed^ lb. 
 
 656. Dismissal. An appeal from the Surro- 
 gate to the General Term of the Supreme Court 
 may be dismissed for Irregularity on motion to 
 the Special Term. Ct. App., 1872, In matter of 
 Dumesnil, 47 N. Y. (2 Sick.) 677. S. C, Spotts 
 V. Dumesnil, 12 Abb. N. S. 117. 
 
 666. . On dismissing an appeal for failure to 
 give security for costs, the court has no power 
 to annex conditions, such as allowing a bond to 
 be filed nunc pro tunc, on payment of costs. lb., 
 128. 
 
 657. Sending back to jury. The onus be- 
 ing with the proponents of a will to furnish sat- 
 isfactory proof of its genuineness, where the 
 evidence is not sufficient to satisfy the appel- 
 late court that it is a forgery, nor yet to con- 
 vince them of its genuineness, leaving the mat- 
 ter in doubt and uncertainty, such court will 
 reverse a decree admitting it to probate, and will 
 send the case to a jury for investigation Ct. 
 App., 1873, Hawlandy. Taylor, 63 N. Y. (8 Sick.) 
 627. 
 
 658. The costs which may be allowed, tmder 
 section 318 of the Code, on appeal to the Gen- 
 eral Term from an order of the Surrogate,' are 
 twenty dollars for the argument, and ten dol- 
 lars for each term the appeal is necessarily on 
 the calendar, and the disbursements the same 
 as in an action at issue on a question of law. 
 Sup. Ct., 1875, Oilman v. BedingUm, 4 Hun, 640. 
 
 As to issuing letters pending appeal. See Ch. 
 603, Laws of 1871. 
 
 APPEARANCE. 
 See Fbacticb; Waivbe. 
 
APPLICATION OF PAYMENTS— ARBITRATION. 
 
 69 
 
 APPLICATION OF PAYMENTS. 
 See Payment. 
 
 APPORTIONMENT OP RENTS. 
 
 See XiAITDLOBD AKD TENANT. 
 
 APPRENTICE. 
 See New Law, Ch. 934, Laws or 1871. 
 
 1. Who may bind. Under the provisions 
 of the Revised Statutes (1 R. S. 617, § 15), a 
 majority of the superintendents of the poor may 
 legally exercise the power of binding out a 
 minor as an apprentice, irrespective of and with- 
 out consultation with the minority. Ct. App,, 
 1874, Johnson v. Dodd, 56 N. Y. (11 Sick.) 76. 
 
 2. Tlie Board of Commissioners of Public 
 Charities and Correction of the city and county 
 of New York created by chapter 510, Laws of 
 1860, succeeded to the powers of the alms-house 
 commissioners ; and they have power to bind to 
 be an apprentice any child who is chargeable to 
 tlie city, and that without the consent of two 
 ju-stices of the peace required by law where 
 overseers pf the poor of a town bind out an ap- 
 prentice. Ct. App., 1875, People ex rel. Wehle v. 
 
 Weissenbach, 60 N. Y. (15 Sick.) 385. 
 
 3. Where a father left his child, five years 
 old, with the commissioners under an agreement 
 to pay a stipulated sum per week for her board, 
 and paid one month's board, but never paid any 
 more, never visited her but once, and soon left 
 the State, and they cared for and supported her 
 as a pauper for several years and then inden- 
 tured her as an apprentice; — Held, that they 
 had legal authority to bind her out as such. lb. 
 
 4. The father was hound by the indentures 
 executed by the commissioners, the same as if 
 he had acted personally, and could not take ad- 
 vantage of the omission of the cliild to execute 
 it, or of the omission of the parties to whom she 
 was bound to execute the obligation required 
 by section 4, chapter 411, Laws of 1869, of one 
 receiving a child bound out from a public or 
 private institution. lb. 
 
 5. The changing of the name of such child 
 after the execution of the indentures did not 
 render them void. lb. 
 
 6. Even though the indentures might not be 
 binding on the child, yet it does not follow that 
 she would, on habeas corpus, be committed to 
 her father, irrespective of her own wishes. lb. 
 
 7. The statute allowing a child whose parents 
 become chargeable to the public to be- bound 
 out by the overseers of the poor (2 R. S. 165, § 
 5), does not apply to the case of one whose 
 mother has received mere temporary relief from 
 the public. Recorder's Ct., 1873, People ex rel. 
 Ueilbronner v. Hosier, 14 Abb. N. S. 414. 
 
 8. The indentures. ' An indenture under 
 that provision of the statute, which contains a 
 stipulation to cause the child to be taught " to 
 cipher," is not a sufficient compliance with the 
 statutory requirement of a stipulation to cause 
 it to be taught the general rules of arithmetic, 
 lb. 
 
 9. It is essential to the validity of an inden- 
 ture that it be signed by the master. lb. 
 
 10. The consent of two justices of the peace 
 is sufficient only when the binding is by the 
 
 overseer of a town. In cities the assent of two 
 aldermen is essential. lb. 
 
 11. An indenture will not be vitiated by rea- 
 son of the tender age of the infant, provided it 
 bears her signature, and in other respects con- 
 forms to the statute. Ct. App., 1870, People ex 
 rel. Barbour v. Ga^es, 43 N. Y. (4 Hand,) 40. 
 
 12. It is not necessary to the validity of an 
 indenture of apprenticeship, executed by a 
 mother whose husband is dead, tliat the latter 
 fact should be attested by a certificate of a jus- 
 tice of the peace. Such certificate is necessary 
 only In case of abandonment, or neglect of the 
 husband to provide. lb. 
 
 13. An Indenture by a charitable institution 
 empowered to bind out children committed to 
 its charge to learn proper trades and employ- 
 ments, which does not bind the master to teach 
 the child any such trade or employment, but 
 simply binds him to feed, clothe, and educate 
 the child, and cause it to receive religious in- 
 struction, is void. Sup. Ct. Sp. T., 1872, Matter 
 of Barre, 14 Abb. N. S. 426. - 
 
 14. — how dissolved. By virtue of its 
 right to require the service of all its citizens, 
 minors and adults alike, the government may 
 dissolve the relation of master and apprentice 
 existing by force of municipal regulations, and 
 the obligation of service resulting from inden- 
 tures executed under or sanctioned by the local 
 law ; and such dissolution is effected by an en- 
 listment, though voluntary on the part of the ap- 
 prentice, and without the consentof tlie master in 
 the military service of the government. Ct. App., 
 1874, Johnson v. Dodd, 56 N. Y. (11 Sick.) 76. 
 
 15. The wages earned by such apprentice 
 while In the military service, as well as bounty 
 money paid on enlistment, belong to him, to the 
 exclusion of any claim by the master. lb. 
 
 ARBITRATION. 
 
 I. The Submission.. 
 II. The Awakd 
 
 09 
 
 70 
 
 I. The Submission. 
 
 1. Matters in suit. An agreement by the 
 parties to a judgment, pending an appeal there- 
 from, to arbitrate the matter in dispute, without 
 any agreement that the judgment shall stand as 
 security or otherwise, operates as a mutual 
 abandonment of the judgment, even though 
 they do not act upon such afjreement. Sup. Ct., 
 1875, Baldwin v. Barrett, 4 Hun, 119. 
 
 2. Disputed boundary. It is competent for 
 the owners of lands, where tlie boundary line 
 between them Is disputed, indefinite and uncer- 
 tain, to determine such line by a parol agree- 
 ment between *themselves, or to submit its de- 
 termination to a joint agent or arbitrator, and 
 when so determined It is conclusive upon them. 
 Sup. Ct., 1875, Stout V. Woodward, 5 Hun, 340. 
 
 3. Revocation, right of. An agreement 
 between the owners of adjoining lands, the 
 boundary of which is in dispute, that one M 
 shall go upon the land and locate the line as it 
 existed when his father occupied tlie land of 
 one party, and that the line so established by 
 him shall be and remain the true boundary be- 
 tween them, is, as to the location by M, an ar- 
 bitration simply, and the power of the latter as 
 arbitrator Is revocable by either party until ac- 
 tually executed. Ct. App., 1871, Wood v. La- 
 fayette, 48 N. Y. (1 Sick.) 484. 
 
70 
 
 ARBITRATION. 
 
 4. Tlie fact that the agreement was made in 
 settlement of an existing suit, does not affect 
 the power of revocation. lb. 
 
 6. Oath of arbitrators. The statutory 
 provision req^uiring arbitrators to take a certain 
 o.atli before proceeding to hear any testimony 
 (2 E. S. 542, sections 4, 5; 2 Edm. Stats. 560), 
 applies to all submissions in writing, even 
 though there be no clause for entering judg- 
 ment on the award. Com. App., 1874, Day v. 
 Hammond, 57 N. Y. (12 Sick.) 479. 
 
 6. The failure of the arbitrators or of any of 
 them to take the statutory oath, does not, how- 
 ever, make the award a nullity ; but it is an 
 irregularity which may be waived, and which 
 leaves the award in force until set aside by the 
 court. lb. 
 
 7. Rehearing. When two arbitrators ap- 
 pointed by the submission, ' being unable to 
 agree, exercise the power given them to select a 
 tliird, whether he comes in as umpire and super- 
 sedes them, or only as a third arbitrator to 
 act jointly with them, the parties are entitled to 
 a rehearing of the case before such umpire, or 
 the three arbitrators, upon testimony taken be- 
 fore them anew, unless that right is expressly 
 waived, and an award without a rehearing on 
 notice to the losing party will be set aside. lb. 
 
 II. The Awakd. 
 
 8. Construction of. An award in a matter 
 submitted to arbitration, while a suit thereon 
 was pending on appeal from the judgment of a 
 justice of the peace, that the plaintiff recover 
 twenty-five dollars and the costs, if any, recov- 
 ered before such justice, gives only such costs 
 as are then owing and unpaid. Sup. Ct., 1875, 
 Willey V. Shaver, 4 Hun, 797. 
 
 9. Effect of. Although the terms of a sub- 
 mission may be sufficiently broad to render a 
 particular claim the proper subject of trial be- 
 fore, the arbitrator, yet, if the award does not, 
 on its face, appear io, include any adjudication 
 thereon, evidence is admissible to show that 
 proof of such claim was not heard, but was in 
 fact excluded by the arbitrator, and the award 
 will not conclude the parties in respect to such 
 claim. Sup. Ct., 1873, Morss v. Osborn, 64 Barb. 
 548. 
 
 10. An award made upon an arbitration be- 
 tween the holder and maker of a note, is bind- 
 ing . upon one who subsequently receives the 
 note from such holder, if the latter was the 
 owner at the time, or if the party so receiving 
 it, though the owner and having knowledge of 
 the arbitration, made no objection thereto. 
 Com. App., 1872, Taylor v. Remington, 51 N. Y. 
 (6 Sick.) 663. 
 
 11. Setting aside. An award of arbitrators 
 will not be set aside for error, either in law or 
 fact, as to matters within their ji*isdiction. To 
 justify this, there must be either misconduct or 
 corruption, or a mistake of law or fact in the 
 nature of a clerical error ; and, in general, to 
 be available, this must appear on the face of 
 the award, or in some paper delivered with it. 
 Ct. App., 1874, Morris Run Coal Company v. Salt 
 Compani/ of Onondaga, 58 N. Y. (13 Sick'.) 667. 
 
 12. Where, in accordance with the submis- 
 sion, two arbitrators being unable to agree call 
 in a third, and he is not sworn, and there is no 
 Waiver, the court may, in the exercise of a 
 sound discretion, set aside the award for that 
 cause; and this it may do upon an answer 
 setting up the irregularity. Cora. App., 1874, 
 Day V. Hammond, 57 N. Y. (12 Sick.) 479. 
 
 13. The award may also be set aside for want 
 of a rehearing of the parties, upon notice, after 
 the coming in of the third man, whether he comes 
 in as umpire, or merely as another arbitrator, 
 lb. 
 
 14. Where members of the New York Pro- 
 duce Exchange voluntarily submit a matter of, 
 controversy to the arbitration committee there- 
 of, appear before them, make their statements, 
 discuss their case and the whole controversy, 
 and interpose no objections to the proceedings 
 in any respect, they thereby waive such irregu- 
 larities as the neglect of the arbitrators to be 
 sworn, and the admission of illegal evidence ; 
 and the award will not be vacated, or the entry 
 of judgment restrained on account thereof. 
 Sup. Ct., 1874, Soniuiborn v. Lavarelto, 2 Hun, 
 201. 
 
 15. The proceedings of the committee in re- 
 spect to granting an adjournment are subject 
 to review, and may be annulled if it appears 
 that they have abused their discretion. lb. 
 
 16. Where all the proofs and proceedings be- 
 fore the arbitrator are not put in evidence in an 
 action to set aside the award, the court will pre- 
 sume that the facts necessary to sustain his 
 rulings were established before him. N. Y. Supr. 
 Ct., 1874, Fudickar v. Guardian Mut. Life Ins. 
 Co., 37 N. Y. Supr. (5 J. & Sp.) 358 ; Aff'g S. C, 
 45 How. 462. 
 
 17. An award should not be set aside on ac- 
 count of the refusal of the arbitrator to allow 
 a person, who had been in the room while a 
 witness was testifying, to testify as to a decla- 
 ration afterward made by such witness, in pur- 
 suance of a rule previously made, that persons 
 expected to be witnesses should not be in the 
 room during the examination of other witnesses, 
 although such person was not at the time ex- 
 pected to be used as a witness. lb. 
 
 18. Nor should it be set aside on the ground 
 that the arbitrator, after the hearing, procured 
 from one party a statement from his books, 
 when it appears that the other party had knowl- 
 edge thereof and did not object, and that the 
 arbitrator did not consider the statement in 
 making his award. lb. 
 
 19. After an unrestricted submission, a court 
 of equity will not, as a general rule, interfere 
 with the award, except in case of a fraud prac- 
 tised by a part}', or of corruption, partiality or 
 misconduct on the part of the arbitrator, or of 
 excess or imperfect execution of the powers 
 conferred, or of gross mistake about which 
 there can be no dispute. N. Y. Supr. Ct. Sp. T., 
 1873, Fudickar v. Guardian Mut. Life Ins. Co., 
 45 How. 462; Aff'd, S. C, 37 N. Y. Supr. (6 
 J. & Sp.) 358. 
 
 20. But where the arbitrator himself, either 
 by the shape in which he makes his award, or 
 by embodying in it "a full statement of tlie 
 grounds of his decision, or of his intention to be 
 governed by strictly legal principles, has con- 
 ferred upon the court a power of inquiry and 
 revision, which it would not otherwise have had, 
 and it clearly appears on the face of the award 
 that the arbitrator would have made a different 
 award had he known that the courts held a dif- 
 ferent view of the question of law arising in 
 the case from his own, the court will grant re- 
 lief, lb. 
 
 21. So also, where the arbitrator has pro- 
 ceeded upon a gross and palpable mistake, 
 either of law or fact, affecting the merits. lb. 
 
 22. Under a submission to arbitration of the 
 question whether or not the defendant had made 
 a verbal agreement with the plaintiff not to en- 
 
ARREST— ASSIGNMENT. 
 
 71 
 
 gage in the retail trade of boots and shoes, an 
 award that he did verbally agree with tlie plain- 
 tiff not to enter into the retail trade of boots and 
 shoes again in A, during the time that the plain- 
 tiff was engaged in such trade, is unauthorized 
 and void. Sup. Ct., 1875, Cwrtis v. Gokey, 5 Hun, 
 656. 
 
 23. Judgment on. Unless the instrument 
 by which parties submit their matters of differ- 
 ence to arbitration is attested by a subscribing 
 witness, the proof by his affidavit reG^uired by 2 
 K.,S. 642, section 9 (2 Edm. Stats. 661) cannot be 
 made, and consequently no judgment can be en- 
 tered upon tlie award. Sup. Ct., 1876, Ocean 
 House Corp. v. Chippu, 6 Hun, 419. 
 
 24. Revi.^'W of . A judgment on an award can 
 only be reviewed by writ of error. The party 
 aggrieved has no right to make a case and ap- 
 peal thereon, for the purpose of reviewing tlie 
 award on the merits. Sup. Ct., 1871, Dibble v. 
 Camp, 10 Abb. N. S. 92 ; S. C, 60 Barb. 150. 
 
 25. The court will not, in any case, review 
 an award made by arbitrators under tlie statute, 
 except on the grounds specifically provided by 
 the Revised Statutes — viz., fraud or undue means 
 in procuring it, partiality, corruption, miscon- 
 duct, excess of power, imperfect or unauthor- 
 ized award, miscalculation or mistake on the 
 part of the arbitrators. lb. 
 
 26. Action on award. Where an award re- 
 quires one party to make certain excavations, 
 and thfe other to pay a certain share of tlie ex- 
 pense, the things to be done by the respective 
 parties are in the nature of concurrent acts or 
 covenants, and if the former party makes a part 
 of the required excavations and offers to make 
 the remainder, and the latter party refuses, on 
 request, to pay any share of the expense, and 
 gives notice that he will not pay any part of the 
 expense if they are made, he cannot maintain 
 an action for non-performance by the other 
 party. Sup. Ct. 1872, Perkins v. Giles, 6 Lans. 
 437. 
 
 ARREST. 
 See Cbiminal Law ; Pbactice. 
 
 1. Tor fraud. Partners, being agents for 
 each other in the business of the firm, each of 
 them is responsible for the acts and representa- 
 tions of the other for the benefit of the firm ; 
 consequently, each is liable to arrest for a fraud 
 committed by the other in the firm business and 
 to its benefit. Sup. Ct., Sp. T. 1871, Sherman v. 
 Smith, 42 How. 198. 
 
 2. Thus, where one partner, without the 
 knowledge of the other, by false and fraudulent 
 representations professedly made on behalf of 
 the firm, procures a third person to indorse the 
 note of the firm, and the firm has the benefit of 
 such indorsement, both partners may be arrest- 
 ed for the fraud. lb. 
 
 3. For malicious trespass. A party who 
 deliberately defaces the sign of anotlier, al- 
 though placed in front of premises occupied by 
 himself, and projecting into the street so as to 
 be, to some extent, an obstruction thereto, is 
 liable therefor in an action of trespass ; and per- 
 haps may be held liable under chapter 573, Laws 
 1853 (4 Edm. Stats. 617), which gives five-fold 
 damages in cases of wanton and malicious tres- 
 pass. In such action the defendant may proper- 
 ly be arrested and held to bail. N. Y. C. P., Sp. 
 
 ■ T., 1872, Goldsmith v. Jones, 43 How. 415. 
 
 4. To compel giving security to keep the 
 peace. Under the provisions of 2 B. S. 705, 
 section 8 (2 Edm. Stats. 728), a magistrate in 
 wliose presence a person makes an affray, or 
 threatens to kill or beat anotlier, &c., has the 
 right, within twenty-four hours after he has 
 witnessed such affray, &c., to issue a warrant 
 for such person, and without other evidence 
 than his own, commit him, on his failure to 
 give security to keep the peace. It is not 
 necessary that he should arrest him at the very- 
 time the act is beingcommitted. Sup Ct., 1874, 
 Sands V. Benedict, 2 Hun, 479. 
 
 ARSON. 
 See Chapter 644, Laws 1873. Ckiminal Law 
 
 ASSAULT AND BATTERY. 
 
 1. "Wbo can sue for. A tenant in common, re- 
 moved by a co-tenant from the common premises 
 by force, may maintain an action for assault 
 and battery, notwithstanding his own possession 
 was acquired by stealth. Ct. App., 1870, Wood 
 V. Phillips, 43 N. Y. (4 Hand,) 152. 
 
 2. Defense. In an action for assault and bat- 
 tery in forcibly expelling the plaintiff from a 
 house, the defendant may justify on the ground 
 that he was in the actual possession and control 
 of the dwelling at the time, and that he used no 
 more force than the occasion required, after he 
 had first requested liiin to leave, and tlie plain- 
 tiff had refused to do so. Ct. App., 1869, Coin- 
 stock V. Dodge, 43 How. 97. 
 
 ASSENT. 
 See CoNTKACT ; Markiagb and Divobob. 
 
 ASSESSMENTS. 
 
 See Municipal Corpokations ; New Yobk 
 Citt; Taxes. 
 
 ASSESSORS. 
 
 1. Judicial acts. Assessors do not act ju- 
 dicially in determining whether they have juris- 
 diction of the persons assessed, hut must make 
 their assessment at the peril of being made per- 
 sonally responsible if they assess persons wlio 
 are not inhabitants of their town or district. 
 Sup. Ct., 1872, Palmer v. Lawrence, 6 Lans. 282. 
 
 2. After jurisdiction is acquired, tliey ai-t 
 judicially in determining tlie amount of assess- 
 ment, the right to exemption, and the liability 
 of the property to assessment, and are imt 
 liable for error in their determination on tlmse 
 points. lb. 
 
 ASSIGNMENT. 
 
 1. What may be assigned. A cause of 
 action for deceit in the sale of real estate is as- 
 
72 
 
 ASSIGNMENT. 
 
 signable. Sup. Ct., 1873, Woodbury v. Deloss, 
 65 Barb. 501. 
 
 2. A right of action upon a guaranty, 
 made at the time of the purchase by cue part- 
 ner of his co-partner's Interest, that the former 
 will perform liis agreement to pay tlie debts of 
 the firm, may be assigned by the latter to a 
 creditor of tlie firm, so as to enable him to en- 
 force it in his own name. Com. App., 1874, 
 Clajim V. Ostrom, 54 N. Y. (9 Sick.) 581. 
 
 3. A lease of a minor's land, executed by 
 his guardian, may be assigned, so that the as- 
 signee may maintain an action thereon in his 
 own name for breaclies of tlie covenants there- 
 in which do not run with the land, occurring 
 after the assignment ; but if he is also owner of 
 the reversion, he may sue for all breaches of 
 covenants running with the land. Sup. Ct., 
 1862, Thacker v. Henderson, 63 Barb. 271. 
 
 4. wnat not assignable. A mere contin- 
 gent possibility, not coupled with an interest, such 
 as a bounty afterward to be voted and offered, 
 is incapable of being sold and assigned, so as to 
 enable the assignee to maintain an action there- 
 on. Sup. Ct., 1874, Decker v. Sallaman, 1 Hun, 
 421 ; AfE'd by Ct. App. 
 
 5. An agreement for such an assignment would 
 be void as against public policy. lb. 
 
 6. A contract giving to one person the exclu- 
 sive control of performances to be rendered by 
 another under his direction, cannot be so as- 
 signed by the former as to give his assignee the 
 right to control such performances, or to restrain 
 the latter from performing for third parties. N. 
 Y. C. P., 1872, ka^es v. Willis, 4 Daly, 259. 
 
 7. A cause of action for a personal injury, 
 such as an assault and battery is not assignable 
 so as to give the assignee the right to prosecute 
 an action therefor against the wishes of the client, 
 or to prevent the settlement thereof by the 
 client ; although it may be valid between the 
 parlies as an agreement entitling the assignee to 
 tlie results of its prosecution. Sup. Ct., 1872, 
 Pulver V. Harris, 62 Barb. 600 ; Aff'd, S. C, 52 
 M. Y. (7 Sick.) 73. 
 
 8. A mere license is personal to the licensee, 
 and is not saleable or transferable. Com. App., 
 1872, Mendenhall v. Klinck, 51 N. Y. (6 Sick.) 246 ; 
 Aff'g 50 Barb. 634. 
 
 9. Where the owner of lands agreed in writing 
 witli another that he might explore and test the 
 same for oil, and if he found it or became satis- 
 fied there was any there, and elected, before a 
 specified time, to take, then that he would convey 
 the premises to him or to whomsoever he should 
 direct ; but no exploration nor election was 
 made, the contract being assigned instead. Held, 
 that the license and right of election were per- 
 sonal with the party contract ing,and his assignee 
 acquired no title to or interest in the lands which 
 he could enforce against the owner. lb. 
 
 10. The assignment or transfer of the salary 
 of a public officer for services to be performed 
 by him as such, before it becomes due and pay- 
 able, is unlawful, being against public policy. 
 Ct. App,, 1874, Bliss V. Lawrence, 48 How. 21 ; 
 S. C, 58 N. Y. (18 Sick.) 442. Such a transfer 
 by an officer or employee of the U. S. govern- 
 ment is also void as being in direct violation of 
 the act of Congress of Feb. 26, 1873 (10 U.S. 
 Statutes, 170). N. Y. C. P., 1873, Billings v. 
 O'Brien, 45 How. 392 ; S. C, 14 Abb. N. S. 238 ; 
 4 Daly, 556. 
 
 11. Ho'w to assign. An assignment of a 
 claim, less than $50 in amount, may be by parol. 
 N. Y. C. P., 1870, Mmray v. Bull's Head Bavic, 
 8 Daly, 364. 
 
 12. A conreyauce of all the grantor's " right 
 title and interest " in the lands described, is a 
 sufficient assignment of an equity of redemption. 
 Ct. App., 1871, Stoddard v. Whiting, 46 N. Y. 
 (1 Sick.) 627. 
 
 13. An assignment of the equity of redemption 
 in lands is valid, if in writing, signed by the 
 assignor, though not under seal ; nor will its va- 
 lidity be affected by the fact that the mortgagee 
 is in possession of the lands and denies the as- 
 signor's right of redemption. lb. 
 
 14. Validity. An assignment of a debt by 
 parol, if made upon a good consideration, is 
 valid, both at law and in equity. Sup. Ct., 1875, 
 Doremus v. Williams, 4 Hun, 458. 
 
 15. An assignment of a mortgage in due form 
 is valid to pass the title, although made to enar 
 ble the assignor to escape taxation, and his 
 administrators cannot maintain an action to 
 recover the money collected b^ the assignee 
 thereon. Sup. Ct., 1875, CoxY.VVightman,4 Hun, 
 799. 
 
 16. By bankrupt. An assi^ment of a 
 chose in action by a person after he has been 
 declared a bankrupt is nevertheless valid, if the 
 bankruptcy proceedings are afterwards discon- 
 tinued without the appointment of an assignee. 
 Sup. Ct., 1875, McDonnell v. Bauendahl, 4 Hun, 
 265. 
 
 17. What passes by. An assignment of a 
 sub-contract, below which on the same paper is 
 an order of the original contractor on. his em- 
 ployer for the payment of the amount to become 
 due on the sub-contract when the work is com- 
 pleted, and an acceptance of such order, carries 
 with it the order and acceptance. Ct. App., 
 1875, Gallagher v. Nichols, 60 N. Y. (15 Sick.) 
 438. 
 
 18. A canal contract provided that fifteen per 
 cent, of the monthly estimates of work and mate- 
 rials should be reserved until the work was 
 completed, and stipulated against any claim for 
 prospective profits in case the work was suspend- 
 ed by the State, but gave the contractor the right 
 to complete the work when the State should 
 order it resumed. Work having been suspended 
 when partially completed, the contractor as- 
 signed the contract, transferring " all moneys, 
 drafts, estimates, or interest which may here- 
 after become due and payable by reason of the 
 aforesaid contract ; " and the work was sub- 
 sequently completed by the assignee. An award 
 having been made on the fifteen per cent, of 
 work done and materials furnished before the 
 assignment, — Held, that this did not pass by the 
 assignment, but the contractor was entitled to 
 the wliole thereof. Ct. App., 1872, People ex rel. 
 Mills V. Dayton, 50 N. Y. (5 Sick.) 681. 
 
 19. An assignment of all the assignor's stock 
 in trade and property in his store, and all his 
 accounts, does not transfer property purchased 
 by him before, but not shipped until the day of 
 the assignment, and not arriving until several 
 days afterward. Com. App., 1872, Lacker v. 
 Rhoades, 51 N. Y. (6 Sick.) 641 ; Rev'g 45 Barb. 
 499. 
 
 20. Construction and effect. Two instru- 
 ments, executed at the same time between P 
 and C, by one of which P absolutely and uncon- 
 ditionally assigns to C all his interest in certain 
 stock owned by a firm of which he was a mem- 
 ber, and by tlie other of which such assignee 
 agrees to take legal measures to settle the part- 
 nership affairs and ascertain the value of P's 
 interest and to dispose thereof in a specified 
 manner, and a third party joins in a covenant 
 of indemnity to F against the costs of the pro- 
 
ASSIGNMENT. 
 
 73 
 
 ceedings, are to he construed together as one 
 instrument. Sup. Ct., 1865, Parks v. Comatock, 
 69 Barb. 16 ; Affd, id. 37. 
 
 21. Such assignment is a valid transfer of P's 
 interest in the stock to C, and the other instru- 
 ment, operating aa a defeasance, C becomes a 
 trustee coupled with an interest, and P cannot 
 settle and adjust the affairs of the partnership 
 without C's assent, nor can he revoke the assign- 
 ment, lb. 
 
 22. The fair construction of provisions of the 
 defeasance, that, if P's interest exceeded $1,000, 
 over and above the costs and expenses of its 
 ascertainment, the surplus to remain for future 
 disposal, but if it did not cover that sum and the 
 costs, the balance after paying costs was to be 
 assigned to P, and he was to re-assign to C ten 
 shares of stock, previously assigned by the latter 
 to him, is, that if any overplus remained from 
 P's interest, after defraying the costs of the 
 litigation and re-imbursing C for the ten shares 
 of stock so assigned, it was in some way to be 
 divided between them. lb. 
 
 23. Even though C, acquired no interest in 
 the stock, and F had power to revoke the as- 
 signment, yet he could not do so after suits had 
 been commenced by and against C, in relation 
 thereto, without tendering an indemnity against 
 costs and damages in such actions, as well as a 
 return of the property. lb. 
 
 24. An assignment by one of several heirs, of 
 all " her right, title, interest, estate, property 
 and demand as legatee, devisee, heir-at-law or 
 otherwise, of, in and to the estate, real and per- 
 sonal, of her late father," and " of the rents, 
 profits and income thereof," to be held until the 
 assignees should realize therefrom a sum speci- 
 fied, but containing no power of sale, does not 
 operate as a mortgage, but merely as an assign- 
 ment of the interest of the grantor, and the 
 alienees take no more than their grantor had 
 power to transfer. Sup. Ct., 1875, Fairchild v. 
 Fairdiild, 5 Hun, 407. 
 
 25. Warranty. An assignment which de- 
 scribes the property assigned as '■ A certain 
 mortgage made by A B," amounts to a warranty 
 that it is a mortgage and was executed by A B. 
 Jones, J., dissents. N. Y. Supr. Ct., 1871, Cor- 
 win V. Wesley, 34 N. Y. Supr. (2 J, & Sp.) 109. 
 
 26. A certificate or agreement by the assignor, 
 in such assignment, that the amount secured 
 " is now owing and unpaid, and said mortgage 
 is. outstanding and unpaid and unsatisfied of 
 ri?cord, and the same is a valid and effectual 
 lien on the personal property mentioned in said 
 mortgage as against the said assignor or any act 
 or deed of his," also constitutes a warranty of 
 the genuineness of the mortgagor's signature, 
 and it is not qualified by the last clause there- 
 of, lb. 
 
 27. Upon the assignment by a vendee of an 
 executory contract for the purchase of lands, 
 there is no implied covenant that the vendor has 
 good title to such lands. At most, it implies a 
 warranty simply that the assignor has good title 
 to the contract, and that the signatures are gen- 
 uine. Com. App., 1872, Thomas v. Bartow, 48 
 N. Y. (3 Sick.) 193. 
 
 28. Rights of assignee of chose in action. 
 A bona fide purchaser of a chose in action, not 
 negotiable, from one to whom the owner has 
 transferred the apparent absolute ownership, 
 upon the faith of such ownership, obtains a 
 valid title as against such owner, although his 
 vendor had no title. Ct. App., 1873, Moore v. 
 Metropolitan National Bank, 65 N. Y. (10 Sick.) 
 41. 
 
 29. Of judgment. One who in good faith 
 purchases a judgment from an assignee thereof, 
 takes the same subject to any equities between 
 such assignee and the judgment creditor. Com. 
 App., 1874, Cutts V. Guild, 57 N. Y. (12 Sick.) 
 229. 
 
 30. Where G recovered a judgment against 
 D & H, as assignee of O, and also recovered 
 judgments against other parties on behalf of the 
 T. Co., and the latter were sold to W, and G 
 afterward, on application of W, executed an 
 assignment of the judgment against D & H, 
 being told and believing that it was one of the 
 T Co.'s judgments, without receiving any con- 
 sideration therefor, — Held, that a subsequent 
 bona fide purchaser of the judgment from his 
 assignee took the same subject to the equities 
 between the parties to the original assignment ; 
 and that assignment being made under a mutual 
 misunderstanding, was void, and did not pre- 
 clude the assignor from settling and discharging 
 the judgment. lb. 
 
 81. The assignee of a judgment takes it sub- 
 ject to the equities of the judgment debtor, and 
 if the assignor could not have enforced if at the 
 time of the assignment, he will take subject to 
 the same disability. Ct. App., 1873, Wai-ing v. 
 Loder, 63 N. Y. (8 Sick.) 581. 
 
 82. The implied obligation arising where insur- 
 ance is procured by a mortgagee upon the 
 request or at the expense of the mortgagor, is, 
 that the insurance money, when paid to the 
 former, shall apply upon the mortgage debt. 
 Accordingly, where, before judgment in a fore- 
 closure action, the insured buildings burned, and 
 a deficiency arose on sale for which judgment 
 was entered against the mortgagor, and such 
 judgment was assigned to the yisurance com- 
 pany on payment of the insurance. Held, that 
 the payment was an extinguishment of the 
 judgment, and they took nothing by the assign- 
 ment ; also that the fact that such assignment 
 was made a condition of payment by the com- 
 pany, did not enlarge their rights. lb. 
 
 33. An assignment of a judgment against a 
 manufacturing corporation carries with it the 
 debt and all rights and remedies for its recovery 
 and collection, including the right of action 
 against the trustees for a failure to make and 
 file the annual report. Ct. App., 1872, Bolen v. 
 Crosby, 49 N. Y. (4 Sick.) 183. 
 
 84. Of subscription. Where a subscription 
 was agreed to be paid to one T, to be expended 
 in certain road repairs, T cannot, until he has 
 incurred some expense in reliance upon such 
 subscription, maintain an action thereon ; nor 
 can he, by assignment, create a right of action 
 in a third party, who has previously made the 
 repairs, but not at his request nor by direction 
 of the subscribers. Com. App., 1870, Van Rens- 
 selaer V. Aikin, 44 N. Y. (5 Hand,) 126 : Eev'g 
 S. C, 44 Barb. 647. 
 
 36. Notice. In order to be entitled to notice 
 of proceedings affecting his interest, the assignee 
 of a judgment must give notice of that interest 
 to the persons through whom he may be affected. 
 N. Y. Supr. Ct. Sp. T., 1873, Bishop v. Garcia, 
 14 Abb. N. S. 69. 
 
 36. An attorney who takes an assignment of 
 a judgment in favor of his client, by failing to 
 give notice of the assignment to the judgment 
 debtor or other parties interested, loses his pro- 
 tection against a payment made by such debtor 
 to the creditors of the client under an order 
 made in supplementary proceedings, his lien 
 being merged in the assignment. lb. 
 
 87. Equitable. An order drawn by a con- 
 
74 
 
 ASSIGNMEI^T FOR BENEFIT OF CREDITORS. 
 
 tractor upon his employer to pay to a person 
 named a certain sum " and cliarge to njy account 
 for building, &c., when his work is accepted," 
 is an assignment of tlie funds of t4ie drawer, due 
 or to become due on the building contract, if 
 tliere were funds to that extent in the drawee's 
 hanils which had not been previously appro- 
 priated or assigned by the drawer. Sup. Ct., 
 1871, Butter v. Ellwanger, i Lans. 8. 
 
 38. An order, to constitute an assignment, 
 must be drawn upon a particular fund specified 
 therein. One made payable "at the time of 
 completion and acceptance of contract," with 
 directi(m to charge to account of drawer, is not 
 an equitable assignment of the moneys due on 
 the only contract existing between the parties, 
 even tliougli the drawer's intention appears to 
 have been to charge that fund. lb. 
 
 39. Wliere a contractor for buildtng a churcli, 
 on receipt and acceptance of a quantity of cut 
 stone for the building, gave tlie party furnish- 
 ing it an order on the church corporation for the 
 purchase price, and the latter presented it to the 
 treasurer of tlie corporation, who assented to it 
 as a transaction between the parties, neither 
 paying, nor accepting, nor promising to pay it, 
 but postponing action thereon until there should 
 be something due the contractor, — Held, that the 
 transaction amounted to an equitable assign- 
 ment of the amount specified in the order, and 
 the assignee was entitled to priority over a 
 mechanic's lien subsequently filed. Sup. Ct., 
 1872, Younq Stone Dressing Co. v. Wardens and 
 Vestry of <S'(. James Church, 61 Barb. 489. 
 
 40. A written order, directing the payment to 
 the holder of certain prize moneys collected by 
 the drawee for the drawer from the United 
 States, operates as an equitable assignment of 
 the fund to tlie payee of the order, and he may 
 maintain an action thereon in his own name. 
 The rights of such payee are not affected by 
 the act of Congress of February 26, 1863, re- 
 lating to tlie assignment of claims against the 
 United States. N. Y. C. P. Sp. T., 1869. Dank- 
 lessen v. Braynard, 3 Daly, 183. , 
 
 41. An order drawn upon a particular fund, 
 for the payment of particular money in the 
 hands of the drawee, not otherwise appropriated, 
 with notice thereof to the drawee, and particu- 
 larly by presentment to him for payment, is an 
 equitable assignment of the money of the 
 drawer in the hands of the drawee, to the 
 amount of the order, and the payee can main- 
 tain an action therefor, even though the order is 
 not accepted. Sup. Ct., 1873, Lewis v. Berry, 64 
 Barb. 593. 
 
 42. An order to pay part of a fund, not yet in 
 existence, to a third party, will, when such fund 
 comes into existence, operate as an equitable 
 assignment thereof ; but if the fund never 
 comes into existence, the order Is, at best, a 
 mere contract to make the assignment, and to 
 sustain it in either case si substantial consideration 
 must be shown. N. Y. Supr. Ct., 1875, Risley v. 
 Smith, 39 N. Y. Supr. (7 J.& Sp.) 137. 
 
 43. An order drawn without consideration, 
 though payable out of a particular fund, does 
 not operate as an assignment p>o tanto of such 
 fund. Earl, C, dissents. Com. App., 1878, Alger 
 v. 5coi«, 54 N. Y. (6 Sick.) 14. 
 
 44. Accordingly, where a married woman drew, 
 in favor of a creditor of her husband and with- 
 out consideration, an order on her tenant, with 
 directions to charge to her account for rent, 
 which order was received and accepted by the 
 tenant but not returned to the drawee, — Held, 
 that it did not operate as an assignment of the 
 
 rent, but such tenant was liable for the full 
 amount to the owner. lb. 
 
 45. A check or draft upon a bank having 
 funds of the drawer -on deposit, does not operate 
 as an assignment of such funds. Com. App., 
 1872, Tyler v. Gould, 48 N. Y. (3 Sick.) 682. 
 
 46. A draft drawn upon a savings bank in 
 which the drawer has no funds at the time, can- 
 not operate as an assignment of moneys after- 
 ward deposited by him ; but is a mere 
 direction or authority to the bank, and when 
 not founded on any consideration it is revocable, 
 and becomes revoked upon the death of the 
 drawer before payment. Ct. App., 1871, Ford- 
 red V. Seamen's Savings Bank, 10 Abb. N. S. 
 425. 
 
 47. An order drawn by one person upon his 
 debtor, and in favor of his creditor, does not 
 operate as an assignment of the debt to the 
 amount of the order; and, although the debtor 
 may pay it in part, }'et, unless he accepts it, or 
 the payee releases the drawer from liability on 
 account of it, such debtor, in an action by the 
 latter for the original debt, will be entitled to 
 credit only for the amount actually paid. Com. 
 App., 1872, Noe v. Christie, 51 N. Y. (6 Sick.) 270. 
 
 ASSIGNMENT FOR BENEFIT OF CREDIT- 
 ORS. 
 
 See Ch. 600, Laws op 1874. 
 
 1. Ackno'wIedgment. The statute (chap- 
 ter 348 Laws 1860) imperatively requires that 
 an assignment for the benefit of creditors shall 
 be in writing and duly acknowledged, and every 
 attempt to execute such a trust by another and 
 different mode from that of the statute is abso- 
 lutely void, and no title will pass. N. Y. C. P., 
 1869, Britton v. Lorenz, S Daly, 22 ; AfE'd, 45 
 N. Y. (6 Hand,) 51. 
 
 ■ 2. The omission to have an assignment for 
 the benefit of creditors acknowledged before 
 delivery, may render it irregular or erroneous, 
 and liable to be set aside or reversed on a direct 
 proceeding by proper parties for that purpose, 
 but its validity cannot be questioned in a collat- 
 eral proceeding. N. Y. Supr. Ct., 1875, Randall 
 V. Dusenbwy, 89 N. Y. Supr. (7 J. & Sp.) 174. 
 
 8. Bond, approval of. Unless the bond 
 required of an assignee under a general assign- 
 ment for the benefit of creditors is approved by 
 the County Judge, the assignee does not take 
 title to the assignor's estate. Chapter 600, Laws 
 of 1874, does not affect that provision of the 
 former act. Sup. Cf., 1875, Hedges v. Bunqay, 
 3Hun,594. i" > • ^ ^ S' 
 
 4. — 'vyhere to be filed. An assignee for 
 the benefit of creditors In the city of New 
 York, is required by section 3, chapter 348, 
 Laws of 1860, to file his bond in the office of the 
 clerk of the county where the assignment is 
 recorded. Filing it in the office of the clerk 
 of the Court of Common Pleas is not suffi- 
 cient. N. Y. Supr. Ct. Sp. T., 1875, Produce 
 Bank of N. Y. V. Baldwin, 49 How. 277. 
 
 5. — liability of sureties. The sureties in 
 a bond given by an assignee for the benefit of 
 creditors are only bound for the faithful dis- 
 charge by him of the duties devolved upon him 
 by the assignment, and which are incident to 
 the relation created by it, and the accounting 
 required by that act. They are not liable to 
 account for the assets in his hands to creditors 
 who have obtained judgments declaring tlie 
 
ASSIGNMENT FOR BENEFIT OF CREDITORS. 
 
 75 
 
 assignment void as against thera. Ct. App., 
 1875, People v. Chalmers, 60 N. Y. (16 Sick.) 
 154; Afi'gS. C, IHun, 683. 
 
 6. Inventory. Tlie affidavit attached to tiie 
 suliedule or inventory of the debtor's property 
 must be sworn to before an officer authorized to 
 take tlie same at tlie time and place at which it 
 was taken. If taken in New York city, before a 
 notary public of Kings county, who has not filed 
 in the office of the clerk of the city and county 
 of New York a certified copy of his appoint- 
 ment, with his autograph signature, it is defect- 
 ive, and the assignment is void as against 
 creditors. N. Y. Supr. Ct. Sp. T., 1875, Pro- 
 duce Bank of N. Y. v. Baldwin, 49 How. 277. 
 
 7. Schedule of creditors. If the names of 
 the creditors, with the order of preference, are 
 not in the body of the assignment, but in a 
 schedule, that must be annexed to the assign- 
 ment and form a part of it at the time it is ex- 
 ecuted and acknowledged, otherwise the assign- 
 ment is void. Sup. Ct. Sp. T., 1875, ^ercAets v. 
 ScAloss 49 How. 284. 
 
 8. An assignment which contemplates that 
 such schedule shall be annexed at a future time, 
 is fraudulent on its face. lb. 
 
 9. Validity. Even conceding chapter 348, 
 Laws of 1860, relative to assignments for the 
 benefit of creditors to be suspended by the opera- 
 tion of the U. S. Bankrupt Act, the common 
 law right to make such assignments still exists, 
 and one which gives no preferences, made by a 
 debtor against whom no proceedings in bank- 
 ruptcy have been taken, is not void as being in 
 hostility to the Bankrupt Act. Ct App., 1874, 
 Thrasher v. Bentley, 59 N. Y. (14 Sick.) 649. 
 
 10. Tlie want of a proper approval of the 
 bond by the county judge, as required by the 
 act of 1860, would not render tlie assignment 
 void, the giving of a bond not being a pre-requi- 
 site to such validity. lb. 
 
 11. An approval of the bond by the special 
 County Judge elected under the authority of the 
 constitution and laws, with power to perform 
 the duties of the judge, is valid and sufficient, 
 lb. - 
 
 12. Made by infant. An assignment for the 
 benefit of creditors is void, as against creditors, if 
 one of the assignors is at the time of its ex- 
 ecution an infant, even though he does not after- 
 ward elect to disaffirm or revoke it, but by si- 
 lence consents to and ratifies it. Sup. Ct., 1871, 
 Yates V. Lyon, 61 Barb. 205. * 
 
 13. — by non-resident. The act of 1860 
 (chapter 348), relating to assignments for the 
 benefit of creditors, was only intended to apply 
 to assignments executed by resident debtors ; 
 and an assignment executed by a non-resident 
 in accordance with the law of his own State, 
 and not void by any law of this State, will, ex- 
 cept in case of fraud, convey personal property 
 here as against the claims of resident creditors. 
 Com. App., 1873, Ackerman v. Cross, 54 N. Y. 
 (9 Sick.) 29. 
 
 14. Agreement to lease to assignor's 
 ■wife. An agreement made at the time of the 
 execution of an assignment for the benefit 
 
 ° of creditors, that the assignees shall lease all 
 the property to the assignor's wife, and car- 
 ried into effect by leaving it in her charge with- 
 out their ever taking possession, renders the 
 assignment void, as tending to hinder, delay and 
 defraud creditors. Sup. Ct., 1875, Dolson v. 
 Kerr, 6 Hun, 643. 
 
 15. Under such assignment and lease the wife 
 takes no title to exempt property included in the 
 inventory and lease which will preclude a levy 
 
 thereon to satisfy a judgment against the hus- 
 band for the purchase-price. lb. 
 
 16. Fraudulent intent. Where the assets 
 of a debtor are largely in excess of his liabili- 
 ties, that fact may raise a presumption that an 
 assignment was made with fraudulent intent ; 
 but a mere nominal excess shown by the sched- 
 ule, will not warrant such a conclusion. Com. 
 App., 1870, Livermore v. Northrup, 44 N. Y. (5 
 Hand,) 107. 
 
 17. The fact that the debtor before making a 
 general assignment, had made other fraudulent 
 conveyances of specific property, will not effect 
 the validity of such assignment. Ih. 
 
 18. Giving preferences. The preference of 
 a fictitious debt would render an assignment 
 void ; but a debt which is void by the statute of 
 frauds is not therefore fictitious, and will not 
 avoid such an assignment. lb. 
 
 19. A debtor may not, in making an assign- 
 ment of his property for the benefit of his cred- 
 itors, so exercise his right of giving preferences 
 as to secure to himself the future control of the 
 property assigned, or of its proceeds. Ct. App., 
 1873, Haydock v. Coope, 53 N. Y. (8 Sick.) 68. 
 
 20. Accordingly, where simultaneously with 
 tlie making of an assignment, the assignor act- 
 ing in concert with his son, one of the assignees, 
 procured from certain of the preferred creditors 
 agreements in writing to lend to his son a large 
 portion of the money they should receive under 
 the assignment, for the term of five years, and 
 authorizing the assignees to pay over to the son 
 the sums so agreed to be loaned ; such loans to 
 be secured by the notes of the son indorsed by 
 the assignor, and being virtually for the benefit 
 of such assignor, to enable him to carry on the 
 business in the name of the son, — Beld, that the 
 assignment was fraudulent and void. lb. 
 
 21. Powers of assignees. An assignee, un- 
 der a general assignment for the benefit of cred- 
 itors, may sue in his individual capacity upon a 
 claim belonging to the debtor, and is not obliged 
 to sue as trustee. Com. App., 1872, Hoagland v. 
 Trask, 48 N. y. (3 Sick.) 686. 
 
 22. An assignee of a stock of goods for the 
 benefit of creditors has no right to employ clerks 
 to sell them at retail, in the usual course of 
 business. Sup. Ct., 1875, Carman v. Kelly, 5 
 Hun, 283. 
 
 23. One of two trustees under an assignment 
 for the benefit of creditors, cannot act separately, 
 without notice to his co-trustee or to the cred- 
 itors, in procuring an instruction from the court 
 to make a compromise of a claim in favor of 
 the assignor, and an order directing'it, or in car- 
 rying such order into effect; and if he does so, 
 the order will afford him no protection on an ap- 
 plication to pass his accounts. Sup. Ct., 1875, 
 Anonymous v. Gelpcke, 5 Hun, 245. 
 
 24. Under such an assignment the trustee is 
 authorized to compromise claims wlien it will 
 be for the best interest of the parties affected 
 thereby, though that power is not expressly 
 given; and the order of the court approving it, 
 in such a case, is simply evidence of good faith 
 and care on the part of the trustee in the execu- 
 tion of his trust. lb. 
 
 25. Distribution by. The firm of B. & Co., 
 being indebted to W. & Co., with a view of mak- 
 ing a payment thereon, borrowed the note of the 
 latter firm for $2,000, agreeing to care for it 
 when due, and having negotiated it to one T, 
 instead of paying the money over, used it. Both 
 firms failed, and B. & Co. made an assignment, 
 preferring W. & Co. $2,000 for borrowed money. 
 The assignee having declared a dividend, — Held, 
 
76 ASSISTANCE, WRIT OF— ATTORNEY AND CLIENT. 
 
 that as between T and tlie assignee of W. & 
 Co., tlie latter was entitled to the fund. Com. 
 App., 1873, Dana v. Owen, 64 N. Y. (9 Sick.) 
 646. 
 
 26. Proportional payment. Where an as- 
 signee for the benefit of creditors holds several 
 notes against the assignor, all indorsed by the 
 same i)arties, he may properly pay tliem in full 
 as they become due, and, if tlie assets in his 
 liands are not suflBcient to pay tliem all, lie can 
 recover the amount unpaid from the indorsers. 
 Sup. Ct., 1874, BaiUy v. Bergm, 2 Hun, 520. 
 
 ASSISTANCE, WRIT OF. 
 
 See MOKTGAGE. ^ 
 
 ASSUMPSIT. 
 See Action ; Monet Paid. 
 
 ATTACHMENT. 
 See Contempt ; Ships, &o. ; Practice. 
 
 1. The Affidavit for an attachment under 
 the act of 1831, will be sufficient if the facts 
 stated in it legally tend to support the averment 
 of a design on the part of the debtor to assign 
 or dispose of his property with intent to defraud 
 his creditors. It is not necessary that they 
 should be decisive of that design. N. Y. C. P., 
 1871, Cooney v. Whitfield, 41 How. 6. 
 
 2. An affidavit showing that the defendant 
 purchased goods to the amount of about $1,000, 
 mainly im credit, — was selling them off at about 
 cost, — had no other property, had borrowed 
 money, and, while refusing to pay it, was en- 
 deavoring to borrow more, — was mi>ch indebted, 
 and refused to pay although he had money, and 
 speaking about failing, said that he would not 
 fail for a few hundred dollars, but when he 
 did so, would fail heavy so as to make some- 
 thing, — Held sufficient to uphold the attach- 
 ment, lb. 
 
 3. Against resident. The attachment 
 provided for by the act to abolish inprisonment 
 for debt (section 34, chapter 300, Laws 1831 ; 4 
 Edm. Stats. 473) is a long attachment ; the allu- 
 sion therein to other cases in which suits could 
 be commenced by attachment, is to those pro- 
 vided for in article 2, title 4, chapter 2, part 3, 
 K. S. (2 Edm. Stats. 246) ; and a short attach- 
 ment is not thereby, authorized against a resi- 
 dent defendant. N. Y. C. P., Havuand V. Wehle, 
 43 How. 59 ; S. C, 4 Daly, 549. 
 
 4. Action founded on fraud. An action 
 in which, the plaintiff seeks to rescind in part a 
 contract " for the exchange of lands on the 
 ground of false and fraudulent representations 
 made by the defendant as to some of the lands 
 exchanged, and to recover the amount allowed 
 for such lands, does not arise upon contract, but 
 is based on tort, and an attachinent cannot 
 properly issue therein under section 227, of the 
 Code. Sup. Ct. Sp. T., 1871, Grossman v.Lindsley, 
 42 How. 107. 
 
 6. Priority. An attachment levied on a 
 vessel upon her arrival in a port of this State, 
 will have precedence of a conveyance, in in- 
 vitum, by operation of the bankrupt laws of 
 
 another State, effected while she was upon 
 the high seas. Ct. App., 1871, Kelh v. Crapo, 
 45 N. Y. (6 Hand,) 86; Bev'g S. C, 41 Barb. 
 
 603. 
 
 ATTORNEY GENERAL. 
 
 1. Po'Wfers of. The Attorney General has 
 power to discontinue an action brought by him 
 in the name of the people of the State, by vir- 
 tue of the statute, to set aside a contract, or to 
 waive the right to appeal therein. Ct. App., 
 1873, People v. Stephens, 62 N. Y. (7 Sick.) 306. 
 
 2. The Attorney General of this State has 
 power and may, in liig discretion, discontinue an 
 action commenced in the name of the people 
 against a corporation, to enforce a forfeiture of 
 its charter. Sup. Ct. at Chambers, 1871, People 
 V. Tobacco Manufacturing Co., 42 How. 162. 
 
 3. Actions by. The Attorney General is 
 authorized to bring actions in the name of the 
 people of this State, for breaches of trust, against 
 all classes of public officers, and in cases of trust 
 for public purposes. In the exercise of this 
 right, he is not limited to ai;tions against muni- 
 cipal officers, but may maintain them against 
 special boards appointed by the legislature to 
 exercise a public trust ; and it makes no dif- 
 ference from what source the monies used have 
 been derived, provided they were to be applied 
 to a public purpose. Sup. Ct., 1872, People t. 
 rwee^, ISAbb.N. S.25. 
 
 ATTORNEY AND CLIENT. 
 
 Rules as to admission of attorneys adopted 
 May 1, 1871, pursuant to chapter 486, Laws 1871, 
 10 Abb. N. S. 147. See amendatory act, chap- 
 ter 260, Laws of 1872. 
 
 1. Striking from rolls. A proceeding to 
 punish an attorney for professional misconduct 
 by striking his name from the rolls or otherwise, 
 is penal, and should be sustained by evidence 
 free from serious doubt. Sup Ct., 1874, In 
 matter of an Attorney, etc., 1 Hun, 321. 
 
 2. Attorneys and counsellors-at-law, are 
 classed as judicial officers, and are subject to 
 suspension or removal by the court for "deceit, 
 raalpracSce, or misdemeanor," on charges pre- 
 ferred and opportunity for defense. The office 
 becomes vacant upon the removal of the incum- 
 bent or his conviction of an infamous crime. 
 N. Y. C. P., 1876, Matter ofNiles, 48 How. 246 : 
 id. 253. 
 
 3. Upon conviction and sentence to State 
 Prison for an infamous crime, such as extorting 
 money from innocent persons, by tlireatenmg as 
 an attorney to bring actions against them for 
 alleged acts affecting their morals, &c., an 
 attorney ceases to be such, and cannot after 
 serving out his sentence practice in the courts 
 as an attorney without re-admission. lb. 
 
 4. An attorney who, after the return to him of 
 an answer in an action in the Marine Court, on ac- 
 count of an omission from its verification of a 
 material clause of the statutory form, makes an 
 erasure between the lines, where that clause 
 might properly have been inserted, to make it 
 appear that it had been properly verified and 
 that clause erased by plaintiff, and uses it with 
 that pretense on a motion, in that court to set 
 aside a default, is guilty of gross deceit and 
 malpractice, for which his name should be 
 
ATTORNEY AND CLIENT. 
 
 77 
 
 stricken from the rolls of the Supreme Court, 
 and he be disqualified from practising as an 
 iittorney. Sup. Ct., 1875, In matter of Loew, 5 
 Hun, 462. *" ■ ' . ■> 
 
 5. Authority of. An attorney cannot 
 compromise an action on payment of his costs, 
 without tlie knowledge, or the special authority 
 and consent of his principal. Sup. Ct., 1875, 
 Mandeville v. Rexjnolds, 5 Hun, 838. He cannot 
 compromise or release a matter in suit. Ct. 
 App., 1871, Barrett v. Third Ave. R. R. Co., 46 
 N. Y. (6 Hand,) 628. 
 
 6. An attorney is not authorized by his re- 
 tainer to discharge a judgment, except upon 
 payment in full, and if he does so, the court will 
 set tlie satisfaction aside. Ct. App., 1871, Beers 
 V. Hendrickson,i6 KY. (6 Hand,) 665: Aft'g 
 S. C, 6 Rob. 53. 
 
 7. An attorney cannot, by virtue of his gen- 
 eral autliority in the conduct of a cause, stipu- 
 late after judgment to give, without payment, a 
 satisfaction or release to one of the joint defend- 
 ants, BO as to bind the plaintiffs thereby. N. Y. 
 C. P. Sp. T., 1871, Carstens v. Bamstorf. 11 Abb. 
 N. S. 442. 
 
 8. But if he does so stipulate, without special 
 autliority, he thereby binds himself, and if he 
 afterwards becomes the owner of tlie judgment, 
 he will not be permitted to enforce it against 
 the party so released ; but his proceedings for 
 that purpose will be stayed, and a levy on exe- 
 cution be set aside. lb. 
 
 9. An attorney has no power by virtue of his 
 employment, to stipulate, for the purpose of ob- 
 taining a postponement of the trial of an action, 
 that the action shall not abate in case of the 
 death of the plaintiff before final judgment, but 
 his authority therefor must be proved. Sup. Ct., 
 1875, Cox V. N. Y. Cent. ^ Hud. Rw. R. R. Co., 
 4 Hun, 176. 
 
 10. An attorney has power, by virtue of his 
 general authority in a suit, to bind his client by 
 a stipulation given after judgment extending 
 the time for tlie adverse party to take an appeal, 
 or to waive an objection to the time of service 
 of notice of appeal by accepting due service 
 after time. N.Y. C. P. Sp.T., 1871, Hoffenberth v. 
 MuUer, 12 Abb. N. S. 221. 
 
 11. Agreements betvreen. An agreement 
 between attorneys that a judgment shall be set 
 aside and a new trial be had, in a pending action, 
 if binding, can be enforced by action only and 
 not by motion. N. Y. Supr. Ct., 1874, Phillips 
 V. Wicks, 38 N. Y. Supr. (6 J. & Sp.) 74. 
 
 12. It seems that such an agreement will 
 not be enforced unless made in writing, and un- 
 der authority greater than a mere general re- 
 tainer; nor will it be enforced after the death of 
 the attorney who made it, at least until a new 
 attorney' has been appointed. lb. 
 
 13. Compensation, right to. In the ab- 
 sence of a prohibitory statute, an attorney who 
 has rendered valuable services to a client, though 
 in a court in which he has not been admitted to 
 practice, may recover therefor, if duly qualified 
 and entitled to be admitted ; and even if there 
 be a prohibition, yet, two partners, one of whom 
 has complied with the statute, may recover in a 
 joint action for services rendered by them. Ct. 
 App., 1873, Harland v. Lilienthal, 53 N. Y. (8 
 Sick.) 438. 
 
 14. An attorney who had not first obtained a 
 license according to the provisions of the Rev- 
 enue Law of the United States, cannot recover 
 for professional services coming within the scope 
 of that act, rendered while the act was in force. 
 N. Y. C. P , 1869, HaU v. Biahop, 3 Daly, 109. 
 
 15. Until the amendment of 1864 (Laws of 
 U. S. for 1863-4, page 267), legal advice given 
 in relation to matters not in litigation, was not 
 within tile prohibition of the revenue law, and 
 for such services rendered prior to the amend- 
 ment an attorney may recover. lb. 
 
 16. An attorney employed by a client to ne- 
 gotiate a sale of certain securities held by him, 
 is entitled to compensation as a broker, but not 
 to counsel fees for conversations had in refer- 
 ence to the sale. Ct. App., 1872, Walker v. Amer- 
 ican National Bank, 49 N. Y. (4 Sick.) 659. 
 
 17. — agreement for. An agreement between 
 an attorney and his client fixing his compensa- 
 tion for services at a certain sum, or making the 
 amount of it contingent on success in the action, 
 is valid, and will be enforced in the absence of 
 great hardship, extortion, or fraud. N. Y. Sujir. 
 Ct., 1875, Porter v. Parmlu, 89 N. Y. Supr. (7 J. 
 & Sp.) 219. S. P. Haight v. Moore, 37 N. Y. 
 Supr. (5 J. & Sp.) 161 ; Burling v. King, 46 How. 
 452 i Helms v. Goodwill, 2 Hun, 410. 
 
 18. — action for. In an action by an attorney 
 to collect compensation for services from dis- 
 tant clients, where it appears that he has col- 
 lected for them only S175, but has so managed 
 their business as to involve them in six suits, and 
 expenses to the amount of several tliousand 
 dollars, those facts may be taken into account 
 in fixing the amount of compensation whicli he 
 ought to recover. Ct. App., 1870, Williams v. 
 Manning, 41 How. 454. 
 
 19. The authority of an attorney, employed to 
 prosecute or defend a suit, in the absence of 
 special circumstances, continues by virtue of his 
 original retainer until its final determination ; 
 and no right of action accrues to him, nor does 
 the statute of limitations begin to run against 
 his claim for services, until his relation as attor- 
 ney to the suit is terminated. Ct. App., 1875, 
 Bathgate v. Raskin, 69 N. Y. (14 Sick.) 533. 
 
 20. Where there is a special agreement be- 
 tween an attorney and his client fo^ a specified 
 compensation in case he succeeds in the suit, 
 and the clieijt confesses a judgment for the 
 agreed amount to secure its payment, and the 
 suit is afterward compromised between tlie par- 
 ties, the attorney cannot enforce his j udgnient 
 for the full amount, but only for the value of his 
 services up to the time of settlement, to be as- 
 certained by a reference or an action on the 
 agreement. Sup'. Ct., 1871, Carey v. Gnanl, 69 
 Barb. 574. 
 
 21. Lien of. An attorney has a lien for any 
 services, as such, to his client, upon all papers 
 and securities in his hands belonging to his 
 cUent, and upon any judgment recovered for his 
 client and upon the proceeds of such judgment. 
 Sup. Ct., 1872, Bowling Green Savings Bank v. 
 Todd, 64 Barb. 146 ; AfE'd,'S. C, 52 N. Y. (7 
 Sick.) 489. 
 
 22. Attorneys, in whose hands a bond and 
 mortgage are placed by a bank, for foreclosure, 
 thereby acquire a lien upon those securities for 
 any sum due to them from the bank for services 
 rendered, and a subsequent appointment of a 
 receiver of such bank does not affect such lien, 
 but it attaches to the judgment recovered in 
 such action, and to the proceeds of a sale under 
 it, coming into their hands. Such lien can be 
 enforced not only for services rendered to the 
 bank, but also for those rendered to the receiv- 
 er after Ills appointment. lb. 
 
 23. But one member of a firm of attorneys 
 cannot claim a lien for an individual demand 
 upon such papers entrusted to the firm. lb. 
 
 24. Sueh U«u dogs not attach to property 
 
78 
 
 ATTORNEY AND CLIENT. 
 
 placed in tlie hands of the attorney as a trustee, 
 for a special purpose. N. Y. C P., 1870, Henry 
 V. Fowler, 3 Daly, 199. 
 
 26. An attorney has a lien for his costs and 
 compensation upon the judgment recovered by 
 him, to the extent, not only of the costs entered 
 in tile Judgment, but for any sum which the 
 client agreed his attorney, should receive ; and 
 to tlie amount of such lien the attorney is to be 
 deemed an equitable assignee of the judgment. 
 Com. App. 1872, Marshall v.Meech, 51 N. Y. (6 
 Siclt.) 140. 
 
 26. Wliere the judgment is for costs only, it 
 is of itself notice of this lien, which cannot be 
 discharged by payment to any one but tlie at- 
 torney ; but where it is for both damages and 
 costs, actual notice is necessary. lb. S. P. 
 Lesher v. Roessner, 3 Hun, 217. 
 
 27. Wlietlier an attorney of the U. S. Dis- 
 trict Court lias a lien upon moneys collected by 
 him for an assignee in bankruptcy, query f U. 
 S. Dist. Ct., 1872, In matter of Staff, 42 How. 414 ; 
 43 How. 110. 
 
 28. Under the provisions of the Revised 
 Statutes relative to the sale of real estate of de- 
 ceased persons, tlie whole amount must be 
 brought into the office of the Surrogate for dis- 
 tribution, and there can be no attorney's lien 
 thereon for services rendered, but such services 
 must be paid for, if it be sought to charge the 
 fund, by the order of the court where the mat- 
 ter is pending. Sup. Ct., 1872, In matter of 
 Lawberson, 63 Barb. 297. 
 
 29. For other services rendered to the ad- 
 ministratrix, there is not only no lien, but no 
 right to priority of payment. lb. 
 
 30. When attaches. No common law lien 
 attaches upon the damages recovered by a 
 party, in favor of his attorney, until he has 
 actually received them ; nor, until the entry of 
 a final judgment, does he acquire any lien upon 
 the costs recovered, which can prevent a settle- 
 ment by the parties without the consent of their 
 attorneys. N. Y. C. P. Sp. T., 1872, Wade v. 
 Oiion, 12 Abb. N. S. 444. 
 
 31. The settlement of a suit by the parties, 
 after verdict but before entry of judgment, is 
 not necessarily in derogation of the rights of the 
 attorney for the prevailing party to the costs ac- 
 crued up to that time ; and a satisfaction of 
 judgment entered in pursuance of such settle- 
 ment will not be set aside on liis motion, unless 
 the settlement is shown to have been made col- 
 lusively and in fraud of his rights. lb. 
 
 82. An attorney acquires a lien for his costs 
 upon the recovery of a judgment, and such lien 
 will be protected if notice thereof is given to the 
 judgment debtor; but his mere retainer to 
 prosecute, and the commencement of an action 
 by him, gives him no lien on what may, in the 
 event of a trial, be recovered. Sup. Ct. 1872, 
 Pulver V. Harris, 62 Barb. 600; Aff'd S. C, 
 62 N. Y. (7 Sick.) 73. 
 
 33. The assignment in terms of a judgment 
 in an action for assault and battery, by the 
 plaintiff to his attorney, as security for his 
 costs, becomes null upon the reversal of the 
 judgment on appeal ; and such attorney has 
 no lien, as against the defendant, which will 
 prevent the latter from making a valid settle- 
 ment with tlie plaintiff, and obtaining from him 
 a release of the cause of action. lb. 
 
 84. After such settlement and release, the 
 plaintiff's attorney has no right to prosecute the 
 action to recover his costs, the right to costs be- 
 ing dependent on the recovery of damages. lb. 
 
 36. An order, on reversal of the judgment 
 
 and granting a new trial, making the costs 
 abide the event of the suit, will not aid the at- 
 torney, as the plaintiff can still say whether the 
 cause shall be again tried. lb. 
 
 36. Subject to set off.- The lien of an at- 
 torney upon the judgment recovered, for his 
 costs,whether created by law or by express agree- 
 ment, is subject to the riglit of the adverse 
 party to set off a judgment against his client, in 
 an action for that purpose, so long as the client 
 owns his judgment ; but when he assigns the 
 judgment, or the costs accrued or to accrue in 
 the action, to his attorney as security for his 
 costs, the right of the adverse party to a set-oS 
 is lost. Sup. Ct. 1874, Firmenich r. Bovee, 1 
 Hun, 632. 
 
 87. Ho'w protected. An attorney's lien 
 upon a judgment for costs, in favor of his 
 client, in a collateral proceeding, will be pro- 
 tected by the court, and the other party will 
 not be allowed to setoff against the same a final 
 judgment in his favor for costs, on dismissal of 
 the action, upon a motion for that purpose. In 
 an action to enforce the right of set-off the rule 
 is otherwise. N. Y. Supr. Ct., Sp. T., 1872, 
 Hovey v. Rubber Tip Pencil Co., 14 Abb. N. S. 
 66; S. C, before, 12 Abb. N. S. 360; 35 N. Y. 
 Supr. (3 J. & Sp.) 81. 
 
 38. An assignment by a client to his attor- 
 ney of prospective costs against his adversary, 
 in consideration of services to be rendered by 
 him in the suit in which he is engaged, is valid ; 
 and if judgment is thereafter obtained in favor 
 of his client for costs, it belongs to the attorney, 
 and his right to it cannot be defeated by setting 
 oft against it a prior judgment in favor of the 
 adverse party against liis client. Ct. App. 
 1873, Perry v. Chester, 53 N. Y. (8 Sick.) 240 ; 
 Bev'g S. C, 86 N. Y. Supr. (4 J. & Sp.) 228. 
 
 39. A court having under its control surplus 
 moneys on a mortgage foreclosure, which are 
 claimed by a judgment creditor of the mort- 
 gagor, has power, for the protection of its offi- 
 cers, to direct the payment of the lien of the at- 
 torney of such creditor on tlie judgment recov- 
 ered by him out of such surplus moneys. Sup. 
 Ct. 1874, Atlantic Savings Bank v. Hiler, 3 Hun, 
 209. 
 
 40. Under an order providing that plaintiff 
 may change her attorney, and that $200 costs 
 of her former attorney be made a prior lien on 
 any judgment recovered, and be paid out of the 
 first money received thereunder, the court may 
 properly, upon receipt of money by the plaintiff 
 on a settlement of the suit, order the $200 to be 
 paid out of such money. Sup. Ct., 1875, Ham- 
 mond v. Dean, 4 Hun, 131. 
 
 41. An order of discontinuance without costs 
 entered upon stipulation between a plaintiff and 
 his attorney and an insolvent defendant, after 
 notice from defendant's attorney forbidding a 
 discontinuance without payment of his costs, 
 will be vacated on his motion, unless plaintiff 
 will pay his costs. Sup. Ct., 1872, Warmer v. 
 Canovan, 7 Lans. 36. 
 
 42. Merger of lien. If an attorney takes 
 an assignment of a judgment in favor of his 
 client, his lien becomes merged in the assign- 
 ment, and in order to be protected as against 
 creditors of his cliferit he must give notice of the 
 assignment to the judgment debtor, or to such 
 creditors. N. Y. Supr. Ct. Sp. T., 1873, Bishop 
 v. Garcia, 14 Abb. N. S. 69. 
 
 43. Discharge. A party who desires to 
 change his attorneys in a suit, cannot insist 
 upon doing so as a matter of right, without 
 showing «ome c»use besides his own mere will. 
 
ATTORNMENT. 
 
 79 
 
 except upon payment of his costs already 
 earned. Sup. Ct. Sp. T., 1873, Board of Su- 
 pervisors of Ulster Co. ■v^Broadhead, 44 How. 
 411. 
 
 44. Duty to client. The fidelity of an at- 
 torney to his client's interests forbids his trafiSc- 
 in^, in the smallest degree, with such interests, 
 by collusion or otherwise, with persons who, in 
 respect tliereto, have occupied an attitude of 
 hostility towards his client. N. Y. Supr. Ct. 
 1871, Hatch V. Fogerty, 10 Abb., N. S. 147 ; S. C. 
 83 N. Y. Supr. (1 J. & Sp.) 166. 
 
 46. If he has advised or assisted his client in 
 proceedings, he cannot afterward use the knowl- 
 edge he has thus acquired, to secure a pecun- 
 iary benefit to himself, adverse to such client's 
 interest, by an attack on such proceedings. lb. 
 
 4Q. An attorney who receives a satisfaction of 
 his bond and mortgage to a large amount in 
 consideration and as payment for services which 
 have been or are to be rendered in and about 
 the settlement of an estate, is bound at all times 
 to hold himself in readiness to render such ser- 
 vices as may be necessary ; and if he accepts a 
 retainer from parties hostile to the one so pay- 
 ing him, he thereby violates his contract and 
 renders himself liable in damages. N. Y. Supr. 
 Ct., 1873, Quinn v. Van Pelt, 36 N. Y Supr. 
 Ct., (4 J. & Sp.) 279. 
 
 47. An attorney or counsel has no right, in 
 the discharge of professional duties, to induce 
 his client, by his advjce, to the violation of the 
 laws of the State, such as the conveyance of 
 property to himself for the purpose of delaying 
 or ,defrauding creditors ; but if he does, he is 
 implicated in his client's guilt, and the court 
 will not allow him to be profited thereby. Sup. 
 Ct., 1874, Goodenough v. Spencer, 46 How. 347 ; 
 S. C, 15Abb.N. S.248. 
 
 48. Uability for interest. An attorney who 
 has collected moneys for his client on a judg- 
 ment obtained by him, is entitled to retain his 
 costs and counsel fees out of the moneys as soon 
 as collected, and in an action against liim for 
 the moneys so collected, the client in entitled to 
 recover interest onlv on the balance. Sup. Ct., 
 1874, Hover v. Heath, 3 Hun, 283. 
 
 49. — for negligence. An attorney, employed 
 by a lender of money, with the consent of the 
 borrower, to examine the title of property pro- 
 posed to be mortgaged to secure the loan, and 
 with whom the mortgage is left to be filed for 
 record, stands in the relation of attorney to the 
 lender, even tiiough both theattorney's fee and 
 the expense of recording are paid by the bor- 
 rower, and he is liable for negligence if he de- 
 lays filing such mortgage until after a subse- 
 quent one has been filed. N. Y. C. P., 1870, 
 Arnold V. Robertson, 3 Daly, 298. 
 
 50. — for sheriff's fees. An attorney who 
 issues an execution upon a judgment is liable 
 for his fees thereon. Ct. App., 1874, Campbell 
 T. Coihran, 56 N. Y. (11 Sick.) 279 ; Aff'g S. C, 
 65 Barb. 534. 
 
 51. Remedy against. The court has power, 
 upon motion, to exercise summary authority 
 over its attorneys to compel them to pay over 
 money belonging to their clients ; and, even 
 where there is a disputed question of fact be- 
 tween an attorney and his client as to the com- 
 pensation agreed upon, the court can refer that 
 question, or try it without a jury, upon motion 
 merely. N. Y. Supr. Ct., 1875, Porter y. Parm- 
 ;y,89N. Y. Supr. (7 J. & Sp.) 218. 
 
 62. It has been the uniform practice in this 
 State to allow an attachment, where an attorney 
 retains money in his hands that juftly l^elongs 
 
 to his clients ; and his good faith in claiming a 
 lien thereon is no ground for exempting him 
 from that remedy. Ct. App., 1873, Bowling 
 Green Savings Bank v. Todd, 62 N. Y. (7 Sick.) 
 489. 
 
 53. Where a plaintiff's attorney obtained an 
 ex parte order, in proceedings supplementary to 
 execution, requiring one who owed the judg- 
 ment debtor to pay the debt to him, and received 
 the money thereon, he knowing that an assignee 
 of the judgment debtor claimed tlie same 
 money, and had commenced a suit therefor, but 
 not disclosing that fact to the judge, the indebted- 
 ness having been admitted by the person ordered 
 to pay, and the judgment debtor having sworn 
 that such person had owed it, — Held, That a 
 motion by the assignee, made after he had re- 
 covered judgment in his action, that the attor- 
 ney pay over the money to him, or that an 
 attachment issue, &c., was properly granted. 
 Sup. Ct., 1872, Fowler v. Lowenstein, 7 Lans. 167. 
 
 54. Such suppression of facts by the attorney 
 was an imposition on the judge who granted 
 the order, and was sufficient ground for restitu- 
 tion, which, as against an attorney, would be en- 
 forced by attachment. lb. 
 
 55. The attorney cannot resist such order on 
 the ground that he has paid over the moiie^ s to 
 the plaintiffs in the action, wlien it appears that 
 he is one of them ; nor on the ground that he 
 took the proceedings for the benefit of an as- 
 signee of the plaintiffs, when he makes no claim 
 that he has paid sucli assignee. lb. 
 
 56. An attachment may properly issue against 
 an attorney, who procures an order in supple- 
 mentary proceedings requiring third parties to 
 pay to him moneys in their hands belonging to the 
 judgment debtor, by suppressing the fact that 
 such moneys were claimed by another party 
 who had commenced an action therefor ; such 
 suppression being a fraud upon the court. Sup. 
 Ct., 1873, Wilmerdings v. Foipler, 45 How. 142 ; 
 AfE'd by Ct. App. S. C, 14 Abb. N. S. 249, 
 but modified on re-hearing 15 Abb. N. S. 86. 
 
 57. An attorney, endeavoring to enforce pay- 
 ment of his client's judgment from third persons 
 in such a case, is acting adversely to such third 
 persons ; and he is not necessarily guilty of 
 fraud in withholding from the judge the fact that 
 another person also claimed the money, when 
 procuring his order, but the parties claiming 
 restitution should' establish tlie fraud, and also 
 show that such adverse claimant was entitled to 
 tlie money. S. C, 15 Abb. N. S. 86. 
 
 58. If the attorney was not in fault in obtain- 
 ing the order, or the money upon it, and has 
 paid it over in good faith to his chent before 
 any motion for restitution, the applicants should 
 seek restitution from the client instead of the 
 attorney. lb. 
 
 59. Substitution. An attorney cannot be 
 changed without leave of the court, or an order 
 of a judge of the court. N. Y. C. P., Sp. T., 
 1875; Krekeler v. Thaule, 49 How. 138. 
 
 60. An attorney may be changed upon his 
 own consent, but the consent must be filed, and 
 an order entered substituting in his place the 
 new attorney, and notice of th& order must be 
 served on the opposite party. lb. 
 
 ATTORNMENT. 
 See Landlobd and Tenant. 
 
80 
 
 AUCTION— BAIL. 
 
 AUCTION. 
 
 1. Compensation of auctioneer. The 
 
 statute (1 Edm. Stats. 493) fixing the compensa- 
 tion of auctioneers for services, in the absence of 
 written agreement, at two and one-half per cent, 
 on tlie amount of sales, refers only to services 
 as auctioneer— that is, for offering the goods 
 for sale and striking them off. Sup. Ct., 1872, 
 Russell V. Miner, 5 Lans. 537 ; S. C ., 61 Barb. 
 684. 
 
 2. An auctioneer, like any other factor, is 
 bound to take all such proper and incidental 
 steps to insure a successful sale as are custom- 
 ary and necessary ; and if, in performing those 
 duties, any expenses are incurred, such as stor- 
 age, cartage, advertising, &c., he is entitled to 
 compensation tlierefor, in addition to trie per- 
 centage allowed by statute. lb. 
 
 S. Real and personal estate, such as a 
 mill and the fixtures previously used therein, 
 but detached and stored elsewhere before the 
 sale, if actually sold together at auction, will 
 both pass to tlie purchaser, even though a subse- 
 quent written contract of sale mentions only 
 the real estate. Sup. Ct., 1874, Bliss v. Misner, 
 2 Hun, 391. ► ' 
 
 BADO. 
 
 1. In Civil Actions — See Practice VII. 
 
 1. Qualification of bail. It is no objection 
 to persons offered as bail, that the property held 
 by them which enables tliem to justify as bail 
 was transferred to them for that purpose by 
 friends of the defendant, without consideration ; 
 but, it seems, it would have been otherwise had 
 the defendant himself owned and so transferred 
 it. Sup. Ct. Sp. T., 1872, People v. Ingersott, 14 
 Abb. N. S. 23. 
 
 2. When liable. The return of an execu- 
 tion against the principal in a bail bond " not 
 found," subjects his bail to an action upon his 
 undertaking, and is conclusive upon him in such 
 action. If the return is false he will have a 
 right of action against the sheriff for the dam- 
 ages sustained by reason thereof. Ct. App., 
 1878, Cozine v. Walter, 65 N. Y. (10 Sick.) 304. 
 
 3. Although a defendant was in the actual 
 custody of the sheriff under an order of arrest, 
 at the time judgment was entered against liim, 
 and was discharged therefrom about a month 
 afterward, on giving an undertaking with bail, 
 but was not actually charged in execution, 
 against his person, until some seven months 
 after the entry of judgment, his bail are liable 
 in an action on tlie undertaking, if no super- 
 sedeas has been obtained from the court dis- 
 charging the defendant. N. Y. Supr. Ct., 1871, 
 Bostwick V. midey, 42 How. 245 ; S. C, 34 N. Y. 
 Supr. (2 J. & Sp.) 23. 
 
 4. The statute (2 K. S. 656, section 36) seems 
 to require in all cases a supersedeas to be allowed 
 by a judge of the court, as a means of procur- 
 ing a discharge, and only after such a discharge 
 would the debtor be exempt from arrest on exe- 
 cution, and the bail be relieved from liability ; 
 and section 288 of the Code, as amended in 1870, 
 which may be regarded as a substitute for the 
 former statute, does not make any essential 
 change in that respect. lb. 
 
 5. In order to make that statute applicable, 
 the defendant must have been in actual custody 
 at the time of the judgment, and must remain 
 
 so or else be surrendered by his bail, so as to be 
 in actual custody at the end of the time limited 
 fdr charging him in execution, otherwise no 
 supersedeas can be granted. II). 
 
 6. Surrender in exoneration. After ac- 
 tion commenced upon an undertaking of bail, 
 the surety may, within twenty days, surrender 
 his principal and obtain an exotieretur, which will 
 be a perfect defense thereto. The form of the 
 proceeding is that prescribed by 2 E. S. 380, 
 sections 21, 22, and not that of section 188 of 
 the Code, and until the surrender is duly con- 
 summated as there provided, the bail continues 
 liable. Ct. App., 1873, Cozine v. Walter, 65 N. 
 Y.-(10 Sick.) 304. 
 
 7. It is too late to apply for exoneration of 
 bail after the bail has become charged; and 
 upon such an application the return of the sheriff 
 on the execution cannot be questioned. N. Y. 
 Supr. Ct., 1875, Hissmg v. Hart, 39 N. Y. Supr. 
 (7 J. &Sp.) 411. 
 
 2. In Criminal Cases. 
 
 8. Forfeiture of Recognizances. The 
 
 provision of section 8, article 4, chapter 315, 
 Laws of 1844, authorizing summary judgments 
 upon forfeited recognizances " given to answer 
 to a charge preferred," etc., applies as well to 
 recognizances taken after indictment as before, 
 an indictment being a " charge preferred ;" within 
 the meaning of the act Ct. App. 1874, People 
 V. Qiiigg, and Same v. Florence, 69' N. Y. ( 14 
 Sick.) 88. 
 
 9. The remedy given by that act is cumula- 
 tive, and does not interfere with those regulated 
 or prescribed by the earlier statute on that 
 subject (chapter 848, Laws of 1839)^- but they 
 are independent of each other and both are 
 valid. lb. 
 
 10. It seems that chapter 202, Laws of 1855, 
 extending the provisions of the Code to forfeited 
 recognizances and repealing all confiicting laws, 
 does not repeal that provision of the act of 1844, 
 but, at most, it merely subjects actions on re- 
 cognizances to the provisions of the Code. Its 
 continued vitality is also settled by section 3, 
 chapter 338, Laws of 1861, which declares it " to 
 be in force and applicable to the city and county 
 of New York." lb. 
 
 11. That provision is not in violation of the 
 provision of the constitution that a party shall 
 not be deprived of his property " without due 
 process of law " (article 1, section 6), since the 
 cognizor consents to and makes it a part of his 
 undertaking, and waives any other process of 
 law. lb. 
 
 12. Neither does it violate the right of trial 
 by jury as preserved by both Federal and State 
 Constitutions, since, if any such right would 
 otherwise have existed, it is likewise waived ; 
 but it is only where a common-law action is 
 brought on a recognizance that a jury may be 
 demanded. lb. 
 
 18. Discharging judgment on. Where 
 the accused fails to appear, the judgment on 
 forfeiture of his recognizance should not be re- 
 mitted upon his recaption or surrender, until 
 after he has been tried and either convicted or 
 acquitted. The practice, recently introduced, of 
 discharging judgments against bail, on applica- 
 tions consented to by the district attorney, where 
 the accused has either been surrendered or has 
 surrendered himself and entered into a new re- 
 cognizance approved by the district attorney, — 
 held incorrect. N. Y. C. P., 1875, People v. Co- 
 man, 49 How. 91. 
 
BAILMENT. 
 
 81 
 
 BAILMENT. 
 
 1. Distinguished from sale. If the iden- 
 tical article delivered is to be returned, the 
 transaction is a bailment; if another thing of 
 equal value, it is a sale. Sup. Ct, 1876, Marsh 
 V. Titus, 3 Hun, 650. 
 
 2. Duty of bailee. . A mere naked bailee of 
 a horse to be pastured gratuitously, is bound to 
 exercise ordinary care ; and if such horse, while 
 in his custody, has his leg broken, and the bailor 
 is at a distance, it is the duty of the bailee to 
 provide for the keeping, care and cure of the 
 animal, as he would if it was his own. Sup. 
 Ct., 1873, Barter v. Blanehard, 64 Barb. 617. 
 
 3. Under such circumstances, he has an im- 
 plied authority to contract with a competent far- 
 rier for the care and keeping of the horse ; and 
 to bind the bailor by such contract, at least until 
 he is informed of the injury, and has time and 
 opportunity to make other provision for him. lb. 
 
 4. Liability of. A bailee without hire can- 
 not be held liable as such for property, without 
 proof that such property actually came into his 
 possession for the purpose of being kept subject 
 to the call of the owner, and of a want of ordi- 
 nary care in keeping it, or of an actual appro- 
 priation by the bailee to his own use. N. Y. 
 Supr. Ct. 1871, Samuels v. McDonald, 42 How. 
 860 ; S. C, 11 Abb. N. S. 344 ; 33 N. Y. Supr. (1 
 J. & Sp.) 211. 
 
 6. — for conversion. Where moneys or se- 
 curities are deposited by several parties with a 
 depositary, to be held by him as security for tlie 
 performance by each of them of his agreement 
 with the others, and by the terms of their agree- 
 ment the depositary is required to place such 
 moneys and securities in charge of certain com- 
 panies and keep them there until the happening 
 of certain events, he is bound to comply with 
 such requirements ; and if he fail to do so with 
 money or securities received from any one of 
 the parties, such party, after a demand for and 
 refusal to deliver up the same may maintain an 
 action against him for a conversion, or of claim 
 and delivery for securities so deposited. N. Y. 
 Supr. Ct, 1872, McCuUough's Lead Co. v. Strong, 
 86 N. Y. Supr. (8 J. & Sp.) 21 ; Aff'd, S. C, 56 
 N. Y. (11 Sick.) 660. 
 
 6. A person taking a horse to board for hire, 
 is liable to an action for conversion, if he uses 
 the horse contrary to the directions of the owner. 
 Ct. App., 1871, Collins v. Bennett, 46 N. Y. (1 
 Sick.) 490. 
 
 7. An unqualified refusal by a bailee to de- 
 liver up goods placed in his cliarge, on demand 
 made by the true owner, renders him liable for 
 a conversion. Com. App., 1871, Ball v. Liney, 
 48 N. Y. (3 Sick.) 6; Rev'g on another point, 
 S. C, 44 Barb. 505. 
 
 8. Where there are conflicting claims, to the 
 property, the bailee may properly retain it for a 
 brief period to investigate the facts as to the 
 real ownership, or he may relieve himself from 
 responsibility by commencing a suit in equity 
 in the nature of a bill of interpleader ; but he 
 cannot retain the goods an unreasonable length 
 of time, or require the claimant to litigate the 
 title. lb. 
 
 9. The owner of a wharf on which wood is 
 piled under an agreement by the owner to pay a 
 specified sum per cord for storage, cannot be 
 held liable in an action for the conversion of 
 such wood, upon mere proof of a demand on 
 him by the owner and his refusal to deliver, but 
 some neglect on his part in reference to the care 
 of the property, or an actual conversion by him 
 
 6 
 
 must be shown. Sup. Ct., 1872, Feltman v. Gulf 
 Brewer;/, 42 How. 488. ^ 
 
 10. A tradesman to whom raw material is en- 
 trusted by another, to be converted into manu- 
 factured articles, has the full possession and con- 
 trol thereof for that purpose, and is in no sense 
 a servant of his employer, and is not guilty of 
 embezzlement if he subsequently converts the 
 manufactured articles. Ct. of Sess., 1871, People 
 
 V. Burr, 41 How. 293. 
 
 11. — for loss by robbery. The power of 
 a national bank to assume the duties and obliga- 
 tions of a naked bailee of valuable property, 
 either gratuitously or for hire, questioned, but if 
 it has such power, that is outside of its ordinary 
 business, and its officers cannot bind the corpo- 
 ration by a contract therefor- without express 
 authority. Ct. App., 1875, First Nat. Bank of 
 Lyons V. Ocean Nat. Bank, 60 N. Y. (15 Sick.) 
 278 ; Bev'g S. C, 48 How. 148. 
 
 12. Such a bank cannot be held liable for prop- 
 erty received by its cashier for safe keeping, 
 without proof that its board of directors have 
 given special authority to receive property for 
 that purpose, or that such power has been exer- 
 cised with their sanction or knowledge. lb 
 
 13. A circular issued by tlie officers of a bank 
 inviting the correspondence of other banks, and 
 offering to buy and sell securities for them, even 
 if known to or authorized by the board of direc- 
 tors, falls far short of an undertaking to act as 
 a depositary or bailee for their correspondents 
 for an indefinite time, or for any time beyond 
 that necessary to accomplish the precise agency 
 assumed. lb. 
 
 14. A deposit of United States bonds for safe 
 keeping cannot be distinguished from a deposit 
 of other valuable property ; and though made 
 by a national bank of another State witli one in 
 the city of New York, it cannot be deemed a de- 
 posit of a part of its reserve under the provisions 
 of the National Currency Act. lb. 
 
 15. A bank receiving property for safe keep- 
 ing, taking no pay and no risks, is.not bound to 
 resort to any special or extraordinary measures 
 to protect it, and cannot be charged with any 
 negligence except that which was connected 
 with and directly contributed to tlie loss. lb. 
 
 16. — for Twant of care. The hirer of a thing 
 is responsible for that degree of diligence which 
 all prudent men use in keeping their own goods 
 of the same kind ; and is liable not only for his 
 own personal default, but also for that of his 
 servants and persons employed by him. Sup. 
 Ct., 1871, Hall V. Warner, 60 Barb. 198. 
 
 17. The hirer of a horse and buggy, who stops 
 at an inn and entrusts the horse to the hostler to 
 be fed, and then brought out again, is liable to 
 the owner for damages to the horse, buggy and 
 harness, caused by the horse's running away in 
 consequence of the negligence of the hostler in 
 not putting the bits in the horse's mouth. lb. 
 
 18. A bailee for hire of a chattel is bound to 
 ordinary care and diligence, and, in case of in- 
 jury to the property while in his possession, is 
 bound to show how it happened, or, if unable to 
 do that, to show such degree of care on his part 
 as would overcome any presumption that the 
 injury might be the result of his own negligence. 
 N. Y. C. P. 1870, Fox v. Pruden, 3 Daly, 187. 
 
 19. — for -wrongful delivery. If a bailee, 
 after being instructed by the bailor not to deliver 
 his property to any person except upon his 
 written order, delivers the same to the wife of 
 the bailor without such order, or upon a forged 
 order, that is not equivalent to a delivery to the 
 husband, and does not discharge the bailee from 
 
82 
 
 BANKS AND BANKING. 
 
 liability. Ct. App., 1872, Rowing y.Manley, 13 
 Abb., N. S. 276 J S. C, 49 N. Y. (4 Sick.) 192 ; 
 Eev'g S. C, 57 Barb. 479. 
 
 20. In such a case, there i« no implied author- 
 ity for the wife to act as agent for her husband, 
 nor does her possession become his possession. lb. 
 
 21. Rights of bailee. Where, in an action of 
 which the bailor had notice, the bailee has been 
 compelled to pay for the property to one having 
 the true title, he may set that up as a defense to 
 an action bv the bailor for the same property. 
 Com. App., 1872, Cook v. Holt, 48 N. Y. (3 Sick.) 
 275. 
 
 22. The rule that a bailee may not set up title 
 in a third person against his bailor, applies only 
 to those cases where the bailee seeks to avail 
 himself of such title for the purpose of keeping 
 the property himself from the bailee, or when 
 he has not yielded to a paramount title in another. 
 If the true owner demands the property, and it 
 is delivered to him, that will be a good defence 
 to an action therefor by the bailor. Ct. App., 
 1874, Western Transportation Co. v. Barber, 56 
 N. Y. (11 Sick.) 544. 
 
 23. Innkeeper, 'inrho is. One who keeps a 
 house on what is called a " European plan," that 
 is, renting rooms and furnishing meals at a res- 
 taurant connected therewith, is the proprietor 
 of a hotel, within the meaning of chapter 421, 
 Laws of 1855, regulating the liability of hotel 
 keepers. N. Y. Supr. Ct., 1871, Bernstein v. 
 Sweeny, 33 N. Y. Supr. (1 J. & Sp.) 271. 
 
 24. Guest, who is. The relation of inn- 
 keeper and guest exists between such keeper 
 and the owner of a stallion, who takes his horse 
 to the inn, lodges and takes his meals there on 
 certain days in each week previously agreed 
 upon, keeps his horse in a stall provided, under 
 his own lock and key, and takes care of, feeds 
 and grooms him, notwithstanding it was all done 
 under a previous agreement, whereby the inn- 
 keeper was to charge less than customary rates 
 for oats and meals, no special terms being fixed 
 for lodging, hay or use of the stall. Sup. Ct., 
 1871, Mowers v. Fethers, 6 Lans. 112. 
 
 25. In ease of the destruction of the horse and 
 other property of the owner thereof by fire, 
 while at the inn under such circumstances, the 
 innkeeper is liable therefor as an insurer. lb. 
 
 26. An innkeeper is not liable for the loss of 
 robes, &c., which a guest at a ball at his inn 
 brings back after once receiving them and start- 
 ing for home, and leaves with a clerk tempora- 
 rily employed there, saying that he had been 
 tipped over, and that those things would have to 
 stay there several days, or until he found his 
 horse, and asking if it would be all right, to 
 which the clerk replied that it would, the inn- 
 keeper himself knowing nothing of their being 
 left there, unless such clerk had authority to 
 make the contract. Sup. Ct., 1871, Coykendall 
 V. Eaton, 42 How. 378. S. C, before, 37 How. 
 438 ; 40 id. 266 ; 55 Barb. 188. 
 
 27. Limitation of liability. The statute 
 (chapter 421, Laws of 1855), which exempts a 
 hotelkeeper from liability for money and jewelry 
 lost by a guest who shall have neglected to 
 deposit the same in the safe provided by him, 
 applies to all money and jewelry, whatever its 
 amount or character, and to every case where 
 the guest has an opportunity to make the 
 deposit and does not make it, although no care- 
 lessness or imprudence is shown. Com. App., 
 1873, Rosenplaenier v. Roessle, 54 N. Y. (9 Sick.) 
 262. 
 
 28. Accordingly, where a lady and her hus- 
 band arrived at a hotel at about 8 f. u., and after 
 
 remaining in their room about an hour, locked 
 their trunk, and the room door, and went down 
 to dinner, where they spent some twenty minutes, 
 returning immediately to their room which they 
 found had been entered in their absence, and 
 some jewelry which the lady wore in ordinary 
 dress, of the value in all of less than $300, had 
 been abstracted,— fleW, that the hotel keeper 
 was not liable. lb. 
 
 29. The liability of an innkeeper for money 
 deposited in his safe, under the act of 1855, is the 
 same as his common-law liability for the prop- 
 erty of a guest; and is not limited to sums 
 necessary for traveling expenses, but extends to 
 any amount received from a guest and so 
 deposited by him. Com. App., 1870, Wilkins v. 
 Earle, 44 N. Y. (6 Hand,) 172 ; Kev'g S. C, 8 
 Rob. 352 ; 19 Abb., N. S. 190. 
 
 30. It is not necessary to fix the liability of 
 an innkeeper for a package of money so deposit- 
 ed, that its amount should be marked, or ever 
 stated to him, unless upon request made ; nor ie 
 it material that a clerk who was permitted to be 
 behind the desk and to make deposits in the safe 
 was not specially authorized to commit his 
 master to any liability for sums larger than 
 necessary traveling expenses. lb. 
 
 31. A printed notice at the head of the page 
 of a hotel register upon which a guest signed his 
 name, as follows : " Money, jewels and other 
 valuable packages, it is agreed, shall be placed 
 in the safe in the office, otherwise the proprietor 
 shall not be responsible for any loss," is not 
 binding upon the guest as a contract, in the 
 absence of proof that he saw and assented to it. 
 N. Y. Supr. Ct., 1871, Bernstein v. Sweeny, 33 
 N. Y. Supr. (1 J. & Sp.) 271. 
 
 32. A watch and chain worn by the guest, are 
 not jewels or ornaments, against liability for the 
 loss of which a hotel proprietor is protected on 
 complying with the statute. lb. 
 
 33. Warehouseman. A warehouseman, 
 receiving-goods from a common carrier, is bound 
 to ascertain whether a bill of lading was given to 
 the shipper ; and if he delivers to a person other 
 than the holder of the bill of lading, he will be 
 liable to the latter for the value of the goods, or 
 of his special property therein. Com. App., 
 1870, City Bank v. Rome, Watertown and Ogdens- 
 burg R. R. Co., 44 N. Y. (5 Hand,) 136. 
 
 BANKS AND BANKING. 
 
 1. Cashier, duty and liability. A cashier 
 of a bank, as its financial agent, is bound to 
 exercise reasonable skill and ordinary diligence 
 and care in the discharge of his duties ; and if 
 he fails in such skill, or omits such care and dili- 
 gence, and in consequence thereof the bank suf- 
 fers damage, he is liable to respond. Com. 
 App., 1872, Commercial Bank of Albany v. Ten 
 Eyck, 48 N. Y. (3 Sick.) 305. 
 
 2. In the absence of proof of collusion such 
 cashier is not liable for an act done by the direc- 
 tion of his superior officer, under circumstances 
 which do not disclose a want of ordinary care 
 on his part. lb. 
 
 3. Where a cashier forwarded certain securi- 
 ties to responsible brokers for sale, the same 
 being accompanied by a letter from the pledgor 
 directing as to the sale and that they should hold 
 the surplus, over the amount of a draft drawn 
 against, them by the cashier, subject to the order 
 of such cashier ; and such draft was accepted and 
 paid, but the cashier neglected for some months 
 
BANKS AND BANKING. 
 
 83 
 
 to inquire after the surplus, during which time 
 the brokers wrongfully applied it upon claims 
 against the pledgor, — Held, that the bank had 
 suffered no damage, as the brokers were liable 
 over to it for the surplus, and the cashier, though 
 negligent, was not liable. lb. 
 
 4. — authority of. The cashier is the man- 
 aging agent of the bank, in all transactions in 
 which it may lawfully engage, and so far as the 
 bank holds him out to the world as invested 
 with authority, he may bind it by his acts, and 
 may also bind it by an admission in reference to 
 its transactions with its customers. Sup. Ct., 
 1869, Caldwell v. National Mohawk Valley Bank, 
 64 Barb. 333. 
 
 5. Tlie bank will be bound by his acts in a 
 particular line, if, through inattention or others 
 wise, the directors suffer him to pursue it for a 
 considerable period without objection ; and as 
 to such acts, performed publicly over the coun- 
 ter of the bank, any private understanding be- 
 tween him and the directors will not avail to 
 limit his authority, so as to relieve the bank from 
 liability. lb. 
 
 6. Wliere a bank has been accustomed for sev- 
 eral years to purchase government bonds,through 
 its cashier, to deposit for circulation, and for 
 the purpose of investing its surplus funds, and to 
 sell them again as it required money for its 
 operations ; and also to purchase bonds for indi- 
 viduals, and keep them on deposit for safety, and 
 collect and pay over the interest thereon, the 
 authority of the cashier to act for the bank in 
 that kind of business may be presumed, and the 
 bank will be bound by his acts. lb. 
 
 7. Wliere an individual paid money to the 
 cashier of such bank, over its counter, to be 
 invested in government bonds, intending to deal 
 with the bank and not witli the cashier person- 
 ally, and subsequently, being informed by the 
 casliier tliat he had purchased the bonds, con- 
 sented at his request to leave them in the bank 
 for safe keeping, andas interest accrued received 
 it from the bank and gave the bank his receipt 
 tlierefor; — Held, that tlie bank was liable for the 
 value of such bonds if misappropriated by its 
 cashier. lb. 
 
 8. Where, in such a case, there is no evidence 
 that any bonds' were ever purcliased for such 
 depositor, except the cashier's statement to him ; 
 — Held,that it might be assumed that the cashier 
 converted tlie funds deposited by him, and tlie 
 bank was ■liable for the money. lb. 
 
 9. Even if such depositor had left his bonds as 
 collateral security, the bank would be prima facie 
 liable therefor, on its failure to deliV^er them on 
 demand, unless it showed affirmatively wliat had 
 become of them. lb. 
 
 10. The neglect of such bank to keep any list 
 of bonds deposited with it, or registry of their 
 numbers and denominations, so that their identity 
 could be determined or thgir ownership known, 
 would make it liable if the bonds could not be 
 found and identified. lb. 
 
 11. An agent, appointed u'jder the act of 
 Congress of 1861 to authorize a national loan, 
 etc., lias no authority to solicit subscriptions for 
 registered or coupon bonds ; and knowledge that 
 the cashier had formerly such an appointment 
 would not affect persons doing business with him 
 over the counter of the bank, in the purchase 
 and sale of such bonds, after the expiration of 
 that act. lb. 
 
 12. A receipt given by a cashier for money 
 left with him for the purchase of government 
 bonds, signed by him in his own name without 
 the addition of " cashier," but dated at the bank. 
 
 raises a doubt whether it was a private or an 
 official act, to determine which parol evidence 
 will be admissible. lb. 
 
 13. — certification cf checks by. As 
 between himself and the bank, a cashier has no 
 authority to certify a check when the drawer has 
 no funds, but the bank having placed him in a 
 position which implies this inherent authority, 
 and the want of it in a particular case being 
 dependent on a fact peculiarly within his official 
 knowledge, his certification in the hands of a 
 bona fide holder will be binding on the bank not- 
 withstanding such want of funds. Ct. App., 
 1873, Cooke V. State National Bank, 52 N. Y. (7 
 Sick.) 96. 
 
 14. The import of a certification and the 
 liability of the bank upon the principle indicated, 
 legally result from the nature of the agreement 
 and the application of well-settled rules of law, 
 and do not depend upon usage or custom. lb. 
 
 15. Notice to the person taking a certified 
 check, that the bank has refused to unite with 
 other banks in a custom to receive from each 
 other certified checks in payment for balances 
 and collections, does not convey notice that the 
 cashier has not the power to certify checks in 
 the ordinary manner, nor prevent his claiming as 
 a bona fide holder. lb. 
 
 16. It may be that a cashier by virtue of his 
 general authority, in the absence of proof of any 
 restriction upon it, may bind his bank in favor 
 of a bona fide holder, by the certification of a 
 check, drawn by one who had no funds on 
 deposit, and po8t>dated, but a subordinate officer 
 such as an assistant cashier, or a clerk, cannot 
 do so unless expressly authorized or permitted 
 to pursue that practice for customers and others. 
 Ct. App., 1874, Pope v. Bank of Albion, 57 N. Y 
 (12 Sick.) 126 ; Rev'g S. C, 59 Barb. 226. 
 
 17. Collections by. A bank which receives 
 from a depositor, for collection, a clieck on 
 another bank, is bound to demand payment 
 within a reasonable time, and if not paid to notify 
 the depositor thereof ; and if such check is lost 
 when transmitted by mail for collection, and the 
 bank does not discover that fact and notify the 
 depositor for twelve days after the drawee should 
 in due course have been heard from, it is liable 
 to the depositor for any loss sustained by reason 
 thereof. Ct. App., 1875, Shipsey v. Bowery Nat. 
 Bank, 59 N. Y. (14 Sick.) 485. 
 
 18. If, when the bank does discover such loss 
 and notify the depositor thereof, it does it in such 
 a way as to lead him to suppose it was still taking 
 measures for collecting the check, and does not 
 look to him for reimbursement, his inaction does 
 not relieve the bank from liability. lb. 
 
 19. A banker doing business in this State, to 
 whom commercial paper, is transmitted by a 
 correspondent for collection, acquires no property 
 therein as against the true owner, notwithstand- 
 ing advances to a larger amount made on general 
 account, unless, by express contract or the un- 
 equivocal course of dealing between the parties, 
 such bankpr becomes absolutely responsible for 
 the amount, and has no recourse to the corres- 
 pondent for reimbursement of remittances. Ct. 
 App., 1872, Dickerson v. Wason, 47 N. Y. (2 
 Sick.) 439 ; Kev'g S. C, 54 Barb. 230. 
 
 20. A bank receiving negotiable paper from 
 another bank for collection, without making any 
 specific loan to the latter on the faith thereof, 
 does not acquire any title to it as against the true 
 owner, by reason of an agreement between it and 
 such other bank, that it may hold all collection 
 paper as collateral against overdrafts. Sup. Ct., 
 lSn,Dod V. Fourth Nat. Bank, 59 Barb. 265. 
 
84 
 
 BANKS AND BANKING. 
 
 21. If a check deposited with a bank for col- 
 lection is lost in course of transmission by mail 
 to the drawee, the bank is not liable for its loss, 
 nor bound to make presentment of it as a lost 
 cheek. Its only duty to the depositor is to ascer- 
 tain within a reasonable time if the check has 
 not reached its destination, and then give notice 
 of the loss. N. Y. Supr. Ct., 1873, Shipsey v. 
 Bowery Nat. Bank ofN. Y., 36 N. Y. Supr. (4 J. 
 & Sp.) 501. 
 
 22. Negligence in performing that duty would 
 render it liable to the depositor for any injury he 
 might sustain thereby. lb. 
 
 23. A bank which receives from its corres- 
 pondent a certificate of deposit purporting to be 
 made by one of its own customers, for collection 
 and credit, and gives such correspondent credit 
 therefor in pursuance of a custom among banks, 
 by which such a credit is subject to a counter- 
 charge in case the paper proves bad and is re- 
 turned to the depositor, and immediately reports 
 the fact to the supposed maker of the certificate 
 without exhibiting the paper, and receives there- 
 for a check for the amount, which, by an ar- 
 rangement between them is not to be deemed an 
 absolute payment, but is conditional upon the 
 paper taken up proving good on inspection, 
 and, on return of the certificate with notice and 
 proof that it is a forgery, credits back the amount 
 of the check to its customer, and notifies its 
 correspondent thereof tendering back the certif- 
 icate, is not hable to such correspondent for the 
 amount of such certificate as upon a collection 
 by it from the maker, especially 'where such cor- 
 respondent held the certificate only for collec- 
 tion and has not become liable thereon. N. Y. 
 Supr. Ct., 1874, Allen v. Fourth Nat. Bank of 
 New York, 37 N. Y. Supr. (5 J. & Sp.) 137. 
 
 24. Deposits. Money deposited by a county 
 treasurer in a bank, and credited in his name as 
 " treasurer," no money of his own being mixed 
 therewith, belongs to the county ; and payment 
 of the balance thereof by such bank to the as- 
 signee in bankruptcy of the treasurer is no de- 
 fense to an action by the county for its recovery. 
 Sup. Ct., 1875, Board of Sups, of Schuyler Co. v. 
 Bank of Havana, 5 Hun, G49. 
 
 25. Where a depositor at a bank, before the 
 maturity of paper held by it on which he is in- 
 dorser, arranges to have his deposit applied to a 
 specific purpose, and requests the bank not to 
 charge the notes to his account, the bank may 
 be regarded as a trustee, and the deposit special ; 
 and, in such case, the depositor cannot complain 
 that the fund is applied to the special purpose 
 named instead of being used in payment of the 
 notes at maturity. Ct. App,. 1872, National Bank 
 ofFishkill v. Speight, 47 N. Y. (2 Sick.) 668. 
 
 26. The deposit of a sum in a bank, accom- 
 panied by a direction to credit the same to the 
 general account of the depositor and charge him 
 with his note for a larger amount, due at such 
 bank at a future day, does not create a specific 
 fund for the payment of such note, or make the 
 banker a trustee for its holder j and such bank- 
 er may apply such funds to the payinent of an 
 over-due note of the depositor in his hands, with- 
 out incurring any obligation to such holder. Ct. 
 App., 1871, JEtna Nat. Bank v. Fourth Nat. 
 Bank, 46 N. Y. (1 Sick.) 82. 
 
 27. In dealings between a depositor and a 
 bank, whatever may be their legal relation, they 
 act substantially upon the principle of agency. 
 The bank having received the funds of the de- 
 positor, is bound to obey his directions as to the 
 disposal of his funds, and cannot disregard his 
 orders not to pay a draft or note made by him, 
 
 and then claim a new and different relation. R 
 Y. Supr. Ct., Sp. T., 1872, Egerton v. Fulton 
 Nat. Bank, 43 How. 216. 
 
 28. Thus, a bank is not authorized by its re- 
 lation to a depositor to pay a note made by him 
 and payable there, and charge him with the 
 amount thereof, if before its maturity he noti- 
 fied the bank not to pay it. lb. 
 
 29. A depositor whose bank-book is balanced 
 and returned to him, with the checks charged 
 to him therein, is not barred from recovering the 
 amount of any forged check so charged, by his 
 neglect to examine them and discover the for- 
 gery immediately, if he notifies the bank thereof 
 within a reasonable time after discovery. N. Y. 
 Supr. Ct., 1874, Frank v. Chemical Nat. Bank 
 of N. Y, 37 N. Y. Supr. (5 J. & Sp.) 26 
 
 30. Liability as agent. Where a national 
 bank having extensively advertised itself as the 
 U. S. depositary and financial agent for the 
 government for the exchange of seven-thirty 
 government notes into five-twenty bonds, a 
 stockholder placed in the hands of the president 
 of the bank, at the bank and in banking hours, 
 a number of such notes to be so exchanged, and 
 received a receipt therefor signed by the presi- 
 dent individually, but upon paper having the 
 bank's printed caption and advertisement, and 
 the notes were sent to brokers in New York ac- 
 companied by a letter having the same printed 
 caption and signed officially by the cashier, who 
 was present at the time the bonds were received,— 
 directing the brokers to sell the notes and credit 
 the proceeds to the bank, which they did, — Held, 
 that the transaction was with the bank and^not - 
 with the president individually, and the bank 
 was liable for the proceeds of the notes, not- 
 withstanding it had credited the same on its 
 books to the individual account of the president, 
 which was at the time largely overdrawn. Sup. 
 Ct., 1871, Van Leuvan v. First Nat. Bank of 
 Kingston, 6 Lans. 373; AfE'd, S. C, 54 N. Y. (9 
 Sick.) 671. 
 
 31. Even assuming that it was the intention 
 of the parties that the transaction should be an 
 individual one, yet the bank being chargeable 
 with knowledge of the agreement and that it had 
 not been performed, its president and cashier 
 having knowledge thereof, was not a bona fide 
 holder of the proceeds of the notes, and was 
 therefore liable to the party who left them for 
 exchange, for the amount thereof. lb. 
 
 32. — on certified check. A bfink which 
 certifies a check drawn on it to be good, is liable 
 thereon to one who takes it in the ordinary 
 course of business, in good faith and for value, 
 even though such check was forged. Sup. Ct., 
 1872, Hagen v. Bowery Nat. Bank, 6 Lans. 490 ; 
 S. C, 64 Barb. 197. 
 
 33. It is immaterial whether the indorsement 
 on the check purporting to be that of the payee 
 named therein is genuine or not. It is sufficient 
 if the person who made it went by that name, 
 lb. 
 
 34. The holder of such check cannot be 
 affected by an advertisement of the forgery, un- 
 less notice of it is brought home to him. lb. 
 
 35. — on certificate of deposit. A bank 
 which issues a certificate of deposit, payable on 
 its return properly indorsed, is liable thereon to 
 a bona fide holder, who took without notice of a 
 payment thereon to the original holder, although 
 it was transferred to him more than six years 
 after it was issued. Such a certificate is not 
 dishonored until presented. Sup. Ct., 1875, Nat. 
 Bank of Ft. Edward T. Washington Co. Nat. 
 Bank, 5 Hun, 605. 
 
BANKRUPTCY. 
 
 85 
 
 86. Receiver. In an action by a stockholder 
 of a bank which has closed up its business and 
 gone into liquidation, against the former direc- 
 tors individually in whose hands its assets and 
 property have been left for some three years, 
 without any accounting with the stockholders 
 during that time, charging them with abusing 
 and neglecting their trust, and wasting the 
 effects of the corporation, a receiver will be ap- 
 pointed, ex parte, to take possession of the assets 
 and property, and make a proper distribution 
 among the owners. Sup. Ct. Sp. T., 1875, 
 Warren v. Fake, 49 How. 430. 
 
 37. The receiver of an insolvent national bank 
 of another State, not a party to an action against 
 such bank in a court of this State in wliich funds 
 belonging to it on deposit with a bank of this 
 State have been attached prior to his appoint- 
 ment, cannot move in such court to have the at- 
 tachment proceedings set aside. SUp. Ct., 1873, 
 Allen v. Scandinavian Nat. Bank, 46 How. 71. 
 
 38. Neither will the attacliment proceedings 
 be enjoined and a receiver be appointed to take 
 charge of the funds pending the litigationi by 
 the V. S. Circuit Court, upon a bill in equity 
 filed therein against the attachment plaintiffs 
 and the sheriff, on the ground that such court 
 has exclusive jurisdiction of such bank and its 
 funds. lb. 
 
 39. Transfer of assets. The provisions of 1 
 R. S. 591, section 8 (1 Bdm. Stats. 549), prohib- 
 iting the transfer of the assets of a monied 
 corporation to an amount exceeding $1,000, with- 
 out a vote or resolution of the board of direc- 
 tors, does not apply to banks organized under 
 the general banldng law of 1838 (4 Edm. Stats. 
 134), and the acts additional and amendatory 
 tliereof. Ct. App., 1872, Belden v. Meeker, 47 N. 
 Y. (2 Sick.) 307. 
 
 40. Those provisions do not apply to a sale of 
 mortgages or other property pledged to it, for 
 the purpose of realizing the money secured by 
 tlie pledge. Com. App., 1872, Commercial Bank 
 of Albany v. Ten Eyck, 48 N. T. (3 Sick.) 305. 
 
 41. National banks, business of. A na- 
 tional bank can lawfully engage in the business 
 of dealing in and exchanging government secu- 
 rities. Sup. Ct., 1871, Van Leuvan v. First Nat. 
 Bank of Kingston, 6 Lans. 373 ; Aff'd, S. C, 54 N. 
 Y. (9 Sick.) 671. 
 
 42. Loan upon stock. Any agreement by a 
 stockholder of a bank, organized under the na- 
 tional currency act of 1863, and continued under 
 the act of Congress of 1864, providing tliat the 
 bank shall have a lien upon his stock for any 
 liability thereafter created by him to tlie bank, 
 is within section 35 of the latter act, prohibiting 
 loans and discounts on such security, and is void. 
 Ct. App., 1871, Conklin v. Second National Bank 
 of Oswego, 45 N. Y. (6 Hand,) 655: Aff'g S. C, 
 53 Barb. 512. 
 
 43. Usury by. The State law in respect to 
 usury applies to contracts made by national 
 banks with individuals, relating wholly to their 
 own private concerns, and an action cannot be 
 maintained against such a bank, under the act 
 of Congress of 1864 (section 30, chapter 106) to 
 recover back twice the amount of interest re- 
 ceived by it on a usurious contract so made. 
 Sup. Ct., 1874, Hintermister v. First Nat. Bank 
 of Chittenango, 3 Hun, 345. 
 
 44. It was not the intention of Congress to 
 exempt national banks, organized under the act 
 of 1864, from the operation of State usury laws ; 
 but that clause of section 30 of the statute fixing 
 the penalty for taking usury at a forfeiture of 
 the interest, has reference to the preceding 
 
 clause, and applies only to contracts made in 
 those States having no usury laws. Ct. App., 
 1872, First National Dank of Whitehall v. Lamb, 
 50 N. Y. (5 Sick.) 95 ; Rev'g S. C, 57 Barb. 429. 
 
 45. Savings banks. A savings banlt which 
 has authority under its charter to receive money 
 and give a certificate for the same at any rate of 
 interest, not exceeding that allowed by law, can 
 lawfully make a certificate of deposit for money 
 actually deposited with it, notwithstanding the 
 provisions of the Constitution and of the Revised 
 Statutes in restriction of banking powers. Ct. 
 App., 1875, Pardee v. Fish, 60 N. Y. (15 Sick.) 
 265. 
 
 46. A savings bank has a right under its 
 general powers to make a regulation that " the 
 accountant will use his best efforts to prevent 
 fraud, but all payments made to persons pro- 
 ducing the deposit books, or duplicates thereof, 
 sliall be deemed good and valid payments to 
 depositors respectively ; " and such regulation is 
 binding upon depositors who have notice of it 
 by its being printed in the pass-book and hung 
 up in the bank. Brooklyn City Ct., 1873, Hau- 
 den V. Brooklyn Savings Bank, 15 Abb. N. S. 
 297. 
 
 47. In paying money upon the presentation of 
 a deposit book, the disbursing officer is not re- 
 quired to demand strict proof of the identity of 
 the depositor, but if the officers have no notice 
 of fraud upon the depositor, and exercise reason- 
 able care and diligence at the time, the payment 
 is good. lb. 
 
 48. A payment by such bank to a person who 
 presents the pass-book of a depositor with an 
 order purporting to be signed by him, discharges 
 the bank, if there is no want of diligence or 
 omission of duty on its part, even thougli such 
 person was wrongfully in possession of the book 
 and the order was forged. Com. App., 1874, 
 Schoenwald v. Metropolitan Savings Bank, 57 N. Y. 
 (12 Sick.) 418 ; Rev'g S. C, 33 N. Y. Supr. (1 J. 
 & Sp.) 440. 
 
 BANKRUPTCY. 
 
 1. Bankrupt act paramoilnt. The United 
 States Bankrupt Act of 1867, when enacted, 
 became paramount and. exclusive, and suspend- 
 ed the operation of tlie State insolvent laws, 
 over all cases within its purview. Sup. Ct Sp. 
 T., 1870, Shears \. Solhinger, 10 Abb. N. S. 287. 
 
 2. A discharge in insolvency under the State 
 laws, obtained in proceedings commenced after 
 the enactment of said Bankrupt Act is inopera- 
 tive, lb. 
 
 3. That act does not suspend those laws 
 which confer on our courts the right to discharge 
 the person from imprisonment. lb. 
 
 4. The purpose and, design of the Bankrupt 
 Act is to bring the property of the bankrupt into 
 the bankrupt court for administration ; and that 
 court is furnished with all needful power to 
 liquidate and settle all liens thereon, the District 
 Court having jurisdiction concurrentlj' with 
 the Circuit Court in cases of adverse claims 
 which it is not proper to litigate by summary 
 inquiry or order. U. S. Dist. Ct., 1872, In mat- 
 ter ofSacchi, 43 How. 250. 
 
 5. Although State courts have jurisdiction of 
 bills for the foreclosure of mortgages against 
 the r^l estate of bankrupts, and may properly 
 exercise it, if no objection is made, yet mort- 
 gagees should not, as a general rule, be permit- 
 ted to pursue the estate in those courts. lb. 
 
86 
 
 BANKRUPTCY. 
 
 6. If there be doubt whether the preAises are 
 an adequate security for the payment of a valid 
 mortgage, the bankruptcy court will recognize 
 the prior lien of the mortgage upon the land, 
 and also the equitable right of the mortgagee to 
 have the rents separated and applied to such 
 payment. lb. 
 
 7. That court might also, where there is no 
 just cause for questioning the validity of the 
 mortgage, on petition of the mortgagee, direct a 
 sale of the premises by the assignee, either sub- 
 ject to or free from liens and mortgages. lb. 
 
 8. Jurisdiction. Where one member of a 
 partnership doing business in New Orleans, after 
 the dissolution thereof, but before the payment 
 of its debts or sale of its real estate, became a 
 resident of New York, and here filed his petition 
 to be declared a bankrupt, and was so declared, 
 and an assignee appointed, — Held, that the 
 bankruptcy court here acquired exclusive juris- 
 diction of the case, and proceedings in bank- 
 ruptcy in the District Court for the district of 
 Louisiana on petition of the other partners, 
 under which the former firm were declared 
 bankrupts and an assignee appointed, were void 
 for want of jurisdiction. U. S.Dist. Ct., 1872, 
 In matter of Greenfield, 42 How. 469. 
 
 9. The proceedings in either court would be 
 of no avail to convey the interest of the mem- 
 bers of the firm in any real estate to the assignee 
 in bankruptcy of either court, while both pro- 
 ceedings remained so pending. lb. 
 
 10. It is the duty of the assignee here to pro- 
 ceed by supplementary petition to have the New 
 Orleans co-partners declared bankrupts, and 
 upon that being done, to take possession of the 
 partnership property and administer upon it in 
 this court in due form of law. lb. 
 
 11. Proceedings for composition. The 
 petition for a first meeting with reference to a 
 composition with creditors, should set forth the 
 nature and terms of tliat which is proposed, and 
 the belief that it will be accepted by two-thirds 
 in number and one-half in value of the creditors 
 in satisfaction of their debts. U. S. Dist. Ct., 
 1878, In matter of Holmes, 49 How. 142. 
 
 12. Previous to the adoption and promulgar 
 tion of General Order No. 36, where there had 
 been no adjudication in involuntarily bank- 
 ruptcy, the court might direct the meeting of 
 the creditors to be presided over by some other 
 officer than a register, and might designate the 
 clerk of the court for that purpose. lb. 
 
 13. That order is entirely prospective, and 
 applies only to proceedings afterward com- 
 menced, and where proceedings were pending 
 before a deputy clerk at the time of its adop- 
 tion, adjourned meetings should also be presided 
 over by him. lb. 
 
 14. The debtor may be examined at the first 
 meeting by any creditor desiring it, before a 
 vote can be taken on the resolution. lb. 
 
 15. The examination of the debtor should be 
 BiShducted like that of a witness in court, and 
 after he has answered the inquiries of an ex- 
 amining creditor, he should be permitted of his 
 own volition, or in answer to inquiries by his 
 own counsel, to make such explanations as are 
 relevant. lb. 
 
 16. His examination should be reduced to 
 writing, sworn to and subscribed by him, and 
 reported to the court ; and the procedure at the 
 meeting should be regulated by the sound dis- 
 cretion of the officer presiding. lb. — 
 
 17. The practice of having a second meeting 
 of creditors called, by notice, for the purpose of 
 inquiring whether the resolution for composition 
 
 has been passed and confirmed in the manner 
 required by law, will be continued. lb. 
 
 18. Register, po'wers and duties of. A 
 register in bankruptcy has power to allow 
 amendments to the schedules of the bankrupt 
 on his ex parte application, at any time while the 
 cause is pending before him ; but it is the better 
 practice to require due notice of the application, 
 to be given to opposing creditors by order to 
 show cause, and then either party cah oppose, or 
 appeal from the order made to the Special 
 Term. U. S. Dist. Ct., 1871, Ir> re Heller, 41 
 How. 213. 
 
 19. The register should allow all necessary 
 and proper amendments whenever a proper 
 cause therefor is shown. lb. 
 
 20. It is the duty of the bankrupt to amend 
 his schedules so as to make them conform to 
 the facts, if incorrect ; and the filing of specifi- 
 cations does not oust the register of his jurisdic- 
 tion of the cause, so as to prejudice the bankrupt 
 in or deprive him of his right to apply to the 
 register for the allowance of amendments. So 
 held,' in a case where the bankrupt had, by a 
 mistake as to the law, inserted in a previous 
 amendment to his schedule debts contracted 
 since the filing of his petition. lb. 
 
 21. A voluntary bankrupt, who schedules 
 among his assets a sum of money, may be re- 
 quired by the register to pay over the same to 
 his custodian ; and if he disobeys such order, he 
 may properly be attached for contempt, after 
 having an opportunity to give testimony by way 
 of purging the contempt and failing to furnish a 
 satisfactory excuse. U. S. Dist. Ct., 1871, In 
 matter qfSpeyei', 42 How. 387. 
 
 22. It is the duty of the register to proceed 
 and audit the accounts of an assignee in bank- 
 ruptcy, including an item for services of an 
 attorney, even though a part of the moneys 
 collected by such attorney have not been actu- 
 ally paid over to the assignee and deposited by 
 him as required by the Bankrupt Act and the 
 20th rule of the District Court. U. S. Dist. Ct., 
 1872, In matter of Staff, 4S, How. 414; 43 How. 
 110. 
 
 23. An adjudication in bankruptcy terminates 
 the bankrupt's interest in any policy of insur- 
 ance on his property, and such policy is thence- 
 forth void unless the insurance company consents 
 in writing to the transfer to the register in 
 bankruptcy, and after the appointment of an 
 assignee to a transfer to him. U. S. Dist. Ct., 
 In matter of Carow, 41 How. 112. 
 
 24. It is proper that the register should cause 
 property of the bankrupt, such as ships, in the 
 possession of the marshal, to be insured, and to 
 allow him for the expense and interest thereon 
 out of the assets. lb. 
 
 25. The register is, by the Bankrupt Law, the 
 court or trustee of the property of the bankrupt, 
 the title to which, by operation of law, vests 
 in him as such, although it may be in the actual 
 custody of the U. S. Marshal as messenger, and 
 it is his duty to care for its safety until it can be 
 turned over to the assignee. lb. 
 
 26. Where a claim for services in caring for 
 stock, belonging to the estate of a bankrupt, 
 after the assignment, is by agreement left for 
 adjustment to the register in bankruptcy, that 
 amounts to a common-law arbitration ; and if he 
 conducts it in an informal manner, without hear 
 ing the claimant or appointing any time for such 
 hearing, the latter is not bound by it, but is 
 entitled to prove the claim anew. Sup. Ct., 
 1875, Moran v. Bogert, 3 Hun, 603. 
 
 27. Assignee, control of court over. An 
 
BANKRUPTCY. 
 
 87 
 
 assignee in bankruptcy U an officer of the court, 
 and bound to obey its orders. If he neglects or 
 refuses to do his duty, the court, judge, or 
 register, as the circumstances of the case may 
 require, will on motion compel him to do it. 
 U. S. Dist. Ct., In re Blaisddl, 42 How. 274. 
 
 28. The bankrupt is entitled to a certificate 
 from the assignee giving the names and post- 
 office address of all creditors who have proved 
 their claims, to enable him to move for a dis- 
 charge and notify such creditors ; and if the 
 assignee refuses or neglects to give it, a motion 
 may properly be made before the register to 
 compel him to do it, and he has povi^er to make 
 the order, and it is the duty of the assignee to 
 obey it. lb. 
 
 29. — remOTEil of. It is not good ground for 
 the removal of an assignee in bankruptcy that 
 he has resisted the foreclosure in State courts 
 of mortgages against tlie property of the bank- 
 rupt by interposing dfefenses and by injunctions; 
 and the decision of the register and district 
 judge, founded upon the proofs, that he would 
 have been dereUct in duty not to have done so, 
 will not be disturbed on appeal. U. S. Dist. Ct„ 
 In matter ofSacchi, 43 How. 250. 
 
 30. Where it appears that, pending the con- 
 troversy, the petitioner has become the sole 
 creditor of the bankrupt, and that no property 
 except the mortgaged premises has come to the 
 possession of the assignee, and that the bank- 
 rupt unites in the petition for the substitution 
 of an assignee to be named by such creditor, 
 and the assignee consents thereto, such substitu- 
 tion may be granted. lb. 
 
 31. — lights in assigned property. A 
 conveyance of real property to an assignee in 
 bankruptcy amounts to nothing more than a 
 trust, the assignee taking no beneficial interest 
 whatever ; and it does not operate to terminate 
 an easement attached to such land and to con- 
 tinue so long as it was owned by the bankrupt, 
 if the land is reconveyed to the bankrupt on dis- 
 continuance of the proceedings. Sup. Ct., 1875, 
 Colie V. Jamison, 4 Hun, 284. 
 
 32. The rights and interest of the assignee in 
 the property and choses in action of the bank- 
 rupt are no greater than those of the bankrupt 
 himself, and the same defences are available 
 against him. N. Y. Supr. Ct., 1874, Woodin v. 
 Frazee, 38 N. T. Supr. (6 J. & Sp.) 190. 
 
 38. An assignee cannot maintain an action 
 upon a debt due the bankrupt, for which the 
 latter received negotiable checks before the 
 assignment, without surrendering or offering to 
 surrender such checks on tlie trial, although a 
 considerable time has passed and they have never 
 been presented. lb. 
 
 34. A conveyance by operation of law, in 
 bankrupt proceedings under tlie law of another 
 State, acting in invitum, will transfer only such 
 property as lies within its territorial limits. Ct. 
 App. 1871, Kelly v. Crapo, 45 N. Y. (6 Hand,) 
 86. 
 
 35. Such a conveyance will not have the effect 
 to transfer the title to a vessel on the high seas, 
 so as to take precedence of an attachment issued 
 from a court of this State and levied upon lier 
 arrival here in port. lb.; Rev'g S. C, 41 
 Barb. 603. 
 
 36. An assignee in bankruptcy acquires the 
 debtor's equity of redemption in mortgaged 
 premises, and may maintain an action to redeem 
 in case of sale on a foreclosure to which he was 
 not made a party ; but he cannot recover a 
 personal judgment against the mortgagee for 
 the value of the equity of redemption, as upon a 
 
 conversion. Ct. App., 1871, Winslow v. Clark, 
 47 N. Y. (2 Sick.) 261. 
 
 37. — actions by. To enable an assignee in 
 bankruptcy to recover back from the creditors 
 of a bankrupt moneys collected by them out of 
 his property, by means of a judgment confessed 
 by him, on the ground that the transaction was 
 in fraud of the Bankrupt Act, he must show 
 that such creditors had knowledge that the 
 debtor was acting in view of insolvency, and 
 with intent to give them a preference. Sup. 
 Ct., 1872, Hoover v. Greenbaum, 62 Barb. 188. 
 
 38. Such creditors are not chargeable with 
 knowledge thereof by the mere fact of the non- 
 payment of their demand and its collection upon 
 a judgment; nor by reason of facts learned 
 by their attorneys, in another suit against the 
 debtor, where they did not know of such suit, 
 and the facts were never communicated to them, 
 lb. 
 
 39. Wliere a bank doing business, but known 
 to its officers to be insolvent, pays the check of 
 its depositor in the ordinary and usual course of 
 business, that cannot be considered a transfer in 
 contemplation of insolvency within the prohibi- 
 tion of 1 R. S. 603, section 4, and the assignee in 
 bankruptcy of such bank cannot recover it back. 
 Ct. App., 1874, Butcher v. Importers and Traders 
 Nat. Bh., 59 N. Y. (14 Sick.) 5. 
 
 40. The proper mode of determining the 
 rights of conflicting claimants to money col- 
 lected by the slieriffi on execution against a 
 bankrupt, and remaining in his hands, is by bill 
 in equity, filed either by the assignee or by the 
 sheriff ; but, with the assent of parties interest- 
 ed, the proceedings may be commenced by peti- 
 tion. Sup. Ct., 1875, People ex rel. Jennys v. 
 Brennan, 3 Hun, 666. 
 
 41. The XJ. S. District Court will not sustain 
 a bill in equity, by the assignees of involuntary 
 bankrupts, to reach, in the hands of a sheriff, 
 the proceeds of property levied upon and sold 
 by him under executions issued out of a State 
 court, upon judgments against the bankrupt in 
 favor of bona fide creditors, obtained prior to the 
 bankruptcy proceedings, where the evidence re- 
 buts the presumption of any fraud or collusion 
 on the part of the bankrupt to give them, or of 
 the creditors to obtain a preference, or to de- 
 feat the operation of the Bankrupt Act. U. S. 
 Dist. Ct., Warren v. Tenth Nat. Bank of N. Y., 
 42 How. 169. 
 
 42. The questions raised, whether the bank- 
 rupt court could render any decree which 
 would bind the sheriff as to property or money 
 in his official custody, and whether a bill in 
 equity would lie for that purpose, there being 
 an adequate remedy at law. lb. 
 
 43. A bankrupt court of tire U. S. has 
 no control over the acts or -judgments of tlie 
 State Supreme Court, in cases where it lias 
 acquired jurisdiction, and cannot enjoin it. The 
 order of the State Court directing the sheriff to 
 pay over moneys collected by virtue of its pro- 
 cess is a complete protection to him. Sup. Ct., 
 1871, Tenth Natl. Bank v. Sanger, 42 How. 179. 
 
 44. — fees of. An agreement by the cred- 
 itors of a bankrupt, or by a purchaser of their 
 claims, to pay a certain person a sum in addi- 
 tion to legal fees if he will consent to act as as- 
 signee of the bankrupt is illegal under section 
 45 of tlie U. S. Bankrupt Act, and, if unexecuted, 
 will not be enforced by the courts. Sup. Ct, 
 1875, Cowing v. Altman, 5 Hun, 556. 
 
 45. Trustee, disqualification. The mere 
 fact of relationship in the ninth, or in a less de- 
 gree, of the proposed trustee to a bankrupt, or 
 
88 
 
 BANKRUPTCY. 
 
 to his largest creditor, or of a proposed member 
 of the committee to such creditor, or to the 
 bankrupt, cannot be considered a disqualifica- 
 tion ; but other facts may concur with such re- 
 lationships to make a confirmation improper. 
 U. S. Sup. Ct., 1871, In Ma(ter ofZinn, 43 How. 
 64 ; overruling S. C, 40 How. 461. 
 
 46. Effect of proceedings. The right of a 
 creditor of a corporation to enforce his claim 
 against its stockholders, is not affected by an 
 adjudication in bankruptcy against such cor- 
 poration, or by his having proved his debt 
 against the bankrupt estate and filed his claim 
 with the assignee. N. T. Supr. Ct., 1873, Allen 
 T. Ward, 36 N. Y. Supr. (4 J. & Sp.) 290. 
 
 47. Under section 37 of the U. S. Bankrupt 
 Act, the court cannot acquire jurisdiction of a 
 bankrupt corporation, without a duly author- 
 ized vote of a majority of the corporators, at a 
 legal meeting called for that purpose, in addi- 
 tion to a petition of the officers ; and such want 
 of jurisdiction may be shown in another action 
 where the proceedings are reUed on by a party 
 claiming the benefit thereof. Sup. Ct., 1873, 
 Ansonia Brass and Copper Co. T. New Lamp 
 Chimney Co., 64 Barb. 435. 
 
 48. It was the intent of the act to discrimi- 
 nate between natural persons and corporations, 
 and section 37, by prohibiting the discharge of 
 a bankrupt corporation, has the effect to limit 
 and qualify the provision of section 21, prohibit- 
 ing suits on claims which have been proved, so 
 far as corporations are concerned. S. C, 53 N. 
 Y. (8 Sick.) 123. 
 
 49. Sffeot of proving claim. A creditor 
 does not, by merely proving his claim under the 
 Bankrupt Act, waive his right of action or suit 
 against the bankrupt, where no discharge is 
 granted. The amendment to section 21 of the 
 act, passed June t2, 1874, to that effect, was 
 not intended tp change the law on the subject, 
 but simply to remove all doubts as to its true 
 construction. Sup. Ct., 1875, Miller v. O'Kain, 
 6 Hun, 39. 
 
 50. Discharge, and its effect. An invol- 
 untary bankrupt who has complied with all the 
 provisions of the Bankrupt Act, has the same 
 right to apply for and receive a discharge as a 
 voluntary bankrupt. U. S. Dist. Ct., In re Brew- 
 ster, 41 How. 406. 
 
 51. The restriction of section 33 of that act, 
 as amended July 27, 1868 and July 15, 1870, 
 upon granting such discharges, applies to pro- 
 ceedings in involuntary bankruptcy ; and an in- 
 voluntary bankrupt, although having assets, 
 and having duly surrendered them to the as- 
 signee, is not entitled to a certificate of con- 
 formity, unless such assets amount to the re- 
 quired fifty per cent, of the claims proven 
 against his estate, or before, on, or at the time 
 of the hearing of the application for discharge, 
 he tenders or files the assent in writing of a 
 majority in number and value' of his creditors 
 to whom he shall have become liable as princi- 
 pal debtor, and who shall have proved their 
 claims, as required by that section as amended, 
 lb. 
 
 52. If, upon the return day of an order to 
 show cause why he should not be discharged, 
 the bankrupt fails to show payment of fifty p^ 
 cent., or assets to that per cent, of the debts 
 proved, or such assent of creditors, the certif- 
 icate of conformity cannot be granted, unless an 
 adjournment is had, and nothing further can be 
 done under that order. Whetlier he afterward 
 be re-instated or relieved by the court, not de- 
 cided, lb. 
 
 53. A certificate of discharge, obtained under 
 the Bankrupt Act of 1867, is conclusive upon a 
 State court of the fact and regularity of the dis- 
 charge. Ct. App., 1871, Ocean National Bank v. 
 Olcott, 46 N. Y. (1 Sick.) 12. 
 
 54. A discharge in bankruptcy, under the 
 act of Congress of 1867, is a good defense to all 
 liabilities incurred by the defendant prior to 
 filing his petition in bankruptcy, unless it is 
 shown to be invalid as provided by section 34 
 of that act. N. Y. C. P., 1874, Stern v. Nuss- 
 baum, 47 How. 489. 
 
 55. A new promise, in order to revive a 
 debt so barred, must be distinct, unambiguous 
 and certain. lb. 
 
 56. A discharge in bankruptcy releases and 
 extinguishes the legal obligation of the bank- 
 rupt, but it may be revived by an express and 
 unequivocal promise to pay the debt, made af- 
 ter the discharge. Ct. App., 1873, Dusenbury v. 
 Hoyt, 53 N. Y. (8 Sick.) 621 ; Bev'g S. C, 45 
 How. 147; 14 Abb. N. S. 132; 36 N. Y. Supr. 
 (4 J. & Sp.) 94. 
 
 57. The original debt may still be treated as 
 the cause of action for the purpose of the rem- 
 edy, and the new promise as a waiver of the 
 bar to its recovery created by the discharge, 
 lb. 
 
 58. A discharge in bankruptcy operates to 
 discharge a judgment, obtained against the 
 bankrupt after the commencement of the pro- 
 ceedings in bankruptcy, in an action to recover 
 damages for breach of a contract of sale, such 
 judgment being provable against the bankrupt's 
 estate - in those proceedings. Sup. Ct., 1872, 
 Monroe y. Upton, 6 Lans. 255; Aff'd, S. C, 50 N. 
 Y. (5 Sick.) 593. 
 
 59. The plaintiff's claim, in such a case, does 
 not become so merged in the judgment as to 
 extinguish it and prevent the operation of the 
 discharge. lb. 
 
 60. A claim arising upon a contract made in 
 May, 1868, by a tenant in surrendering his 
 lease to his landlord, that the latter shall rent 
 the premises for the remainder of the term for 
 what he may be able to get for them, and the 
 former shall pay any deficiency between the 
 rent so received and that reserved in the lease 
 surrendered by him, with interest, upon which 
 a judgment is rendered before such tenant files 
 his petition in bankruptcy, is provable against 
 his estate, and is a debt contracted prior to the 
 first day of January, 1869, to wit : on the day 
 of surrendering the lease, from which the bank- 
 rupt may be discharged under section 33 of the 
 Bankruptcy Act as amended July 14, 1871. U. 
 S. Dist. Ct., 1872, In Matter of Swift, 44 How. 
 247. 
 
 61. A judgment obtained against a bankrupt 
 only a few days before the filing of the bank- 
 rupt's petition, with knowledge on the part of 
 the judgment creditor that his debtor is insol- 
 vent, will be treated as void under the Bankrupt 
 Act, because it gives a preference to such cred- 
 itor. U. S Dist. Ct., In matter of Kempner, 43 
 How. 129. 
 
 62. Where such judgment is proved as a claim 
 in the bankruptcy proceedings, the court ac- 
 quires full jurisdiction over it, and it may there- 
 upon be treated as a simple contract claim, 
 stripped of all the verity given it as a judgment. 
 lb. 
 
 63. A bankrupt's discharge, obtained after 
 issue joined in a suit, the complaint in vfhich 
 contains general allegations of the conversion of 
 personal property, and also states facts sufiicient 
 to entitle the plaintiff to recover as upon contract, 
 
BANKRUPTCY. 
 
 89 
 
 fflay be pleaded to such complaint by supple- 
 mental answer. N. Y. SUpr. Ct. 1871, Lyon v. 
 /sett, 42 How. 155; S. C, 11 Abb. N. S. 863 ; 84 
 N. Y. Supr. (2 J. & Sp.) 41. 
 
 64. A bankrupt discharge does not operate 
 upon continuing contracts, so as to permit the 
 bankrupt to enjoy the benefits arising therefrom 
 after the filing of the petition, and at the same 
 time exempt him from liability for such subse- 
 quent enjoyment. Ct. App. 1873, Robinson v. 
 Pesant, 53 N. Y. (8 Sick.) 419. 
 
 65. A discharge in bankruptcy does not destroy 
 "the liability of the sureties of the bankrupt in 
 
 an undertaking given by them to obtain a re- 
 lease of his property from an attachment, levied 
 more than four months before the commence- 
 ment of tlie bankruptcy proceedings. Sup. Gt., 
 1874, Hol)/oke v. Adams, 1 Hun, 223. 
 
 66. A claim for rent which accrued after 
 the filing of tlie petition in bankruptcy, though 
 under a lease executed prior to such filing, is not 
 provable in bankruptcy, and consequently will 
 not be affected by the discharge. U. S. Dist. 
 Ct. at Cliarabers, 1874, In matter of Mag v. 
 Berwin, 47 How. 37. 
 
 67. The Bankrupt Act secures to a creditor the 
 benefit of a legal Uen secured before the bank- 
 ruptcy proceedings ; and where a creditor has 
 obtained a judgment by default, which is ordered 
 to stand as security upon allowing the debtor to 
 answer, he is entitled to have his lien, so acquired, 
 protected, and the debtor ought not to be allow- 
 ed afterward to plead his discharge by supple- 
 mental answer, as that would destroy such lien. 
 Sup. Ct., 1874, Barstow v. Hansen, 2 Hun, 333. 
 
 68. Foreign discharge. A discharge un- 
 der the" insolvent laws of Massachusetts, other- 
 wise regular, is a bar to a debt previously 
 existing, even though the creditor was not men- 
 tioned in the insolvent^ schedule, or notified of 
 the proceedings, or the debt not contained in the 
 schedule, if the omission was caused by mistake, 
 inaccuracy or ignorance, and was nqt wilful or 
 fraudulent. Sup. Ct., 1871, Hall v. Robbins, 4 
 Lans. 463 ; S. C, 61 Barb. 83. 
 
 69. Under the English Bankruptcy Act no 
 debts are provable except such as arise upon 
 contract. Claims arising upon tort are not af- 
 fected by a discharge. N. Y. Supr. Ct., Harrison 
 T. Lmrie, 49 How. 124. 
 
 79. A judgment recovered in an English 
 court in an action wherein the declaration con- 
 tained counts upon both tort and contract, and 
 the verdict was general, will be deemed dis- 
 charged, unless the plaintiff shows that it was 
 actually recovered for the tort. lb. 
 
 71. Validity of discharge. A discbarge 
 in bankruptcy is not invalidated by the mere 
 omission from the debtor's schedule of the name 
 or claim of a creditor, unless shown to have been 
 omitted fraudulently. Sup. Ct., 1875, Piatt v. 
 Parker, i Hun, 135. 
 
 72. Whether, on a motion for leave to issue 
 execution on a judgment obtained before the 
 discharge of the judgment debtor in bankruptcy, 
 tlie creditor can be permitted to go behind his 
 judgment and show that, although recovered as 
 on a simple contract debt, it was for a debt 
 created by the fr^ud of the debtor. Ct. App., 
 1873, Shuman v. Strauss, 52 N. Y. (7 Sick.) 404 ; 
 Aft'g S. C, 34 N. Y. Supr. (2 J. & Sp.) 6. 
 
 73. Stay of execution. A bankrupt, 
 against wliom a judgment has been rendered 
 pending the bankruptcy proceedings, for a de- 
 mand the amount of which was ascertained before 
 his petition was filed; and which was there- 
 fore provable against Ills estate in those pro- 
 
 ceedings, and who has had no opportunity to 
 plead his discharge in the action, if not guilty of 
 gross laches, may on motion obtain a perpetual 
 stay of execution on such judgment. Sup. Ct., 
 1872, Monroe v. Upton, 6 Lans. 255 ; Aff'd, S. C, 
 60N. Y. (5 Sick.) 593. 
 
 74. — of proceedings. A stay of proceed- 
 ings in an action will not be granted on the 
 ground of the pendency of bankruptcy proceed- 
 ings against the defendants, where it appears 
 that they cannot have a discharge, and especially 
 where they are a corporation, and the plaintiff 
 must obtain a judgment against them before he 
 can resort to his remedy against the stockhold- 
 ers. Sup. Ct., Sp. T., 1871, Cooper v. Troy 
 Woollen Co., 11 Abb. N. S. 353, n. 
 
 75. Distribution of assets. Upon the 
 distribution of the assets of a banking institu- 
 tion by an assignee in bankruptcy, a savings 
 bank which has made deposits with it, in pursu- 
 ance of chapter 257, Laws of 1858 and chapter 
 136, Laws of 1858, under a contract for interest, 
 is not entitled to priority or preference in pay- 
 ment over other creditors, no provision of tliose 
 acts making them liens or securities, or rights or 
 interests in property ; or, if so, they are not re- 
 cognized or saved by the Bankrupt Act. U. S. 
 Dist. Ct., 1874, In matter of Stayvesant Bank, 49 
 How. 133. 
 
 76. A city marshal who levies upon the goods- 
 of a bankrupt under an execution issued by a 
 State court, and holds them until ousted by the 
 U. S. Marshal under the warrant of the court in 
 bankruptcy, by which the levy is held void as 
 being in violation of the Bankrupt Act, has no 
 lien upon the goods levied on for his fees, pound- 
 age, &o., on such levy, which would entitle him 
 to payment thereof out of the funds in tlie hands 
 of the assignee. U. S. Dist. Ct., In matter of 
 Kempner, 43 How. 129. 
 
 77. Where a partnership and its members are 
 in bankruptcy under one commission or one 
 adjudication in the same proceeding, the separ 
 rate estate of a partner is to be applied to the 
 payment of his separate debts at the amounts 
 proved, without interest after the adjudication, 
 and any surplus then remaining is to be added 
 to the partnership estate and applied to the pay- 
 ment of the joint debts, before paying such in- 
 terest on the separate debts. U. S. Dist. Ct., 
 1872, In matter of Berrian, 44 How. 216. 
 
 78. Appeal. No appeal can be taken under 
 the eiglith section of the Bankrupt Act of 1867, 
 unless the decree from which it is taken is final. 
 U. S. Cir. Ct., 1874, Piatt v. StevDart, 47 How. 206. 
 
 79. A decree setting aside certain conveyances 
 as preferential and void under the Bankrupt 
 Act, and also providing for an accounting of 
 rents and profits before a master appointed for 
 that purpose, and also directing the master to 
 ascertain and report on what would be a suit- 
 able and proper compensation to be paid certain 
 sheriffs for their levies under executions in their 
 hands, and services in and about the same, to 
 be paid out of the funds disposed of by the de- 
 cree, and not requiring a reconveyance until 
 after a decree to be thereafter made, is not a 
 final decree, and is not appealable. lb. 
 
 80. Where an appeal from such a decree by 
 the party whose conveyances were set aside has 
 been dismissed as premature, another appeal by 
 creditors whose judgments and executions are 
 set aside by the same decree will also be dis- 
 missed, because, although it may be final as to 
 them, their claims affect the fund in wliich the 
 former appellant is interested, and he has a 
 right to be heard in respect thereto. lb. 
 
90 
 
 BATTERY— BILL OF LADING. 
 
 81. Review in circuit court. The Circuit 
 Court is not bound, at the instance of a creditor 
 who feels aggrieved, to retry a decision of the 
 District Court in Bankruptcy ; and when a bill 
 is filed by a contesting creditor, under section 2 
 of the Bankrupt Act, to review a decision of the 
 District Court refusing to expunge a debt, it 
 may in its discretion refuse to review it, if in its 
 opinion no sufficient cause therefor is shown. 
 U. S. Sup. Ct., 1873, First Nat. Bank of Troy v. 
 Cooper, 47 How. 108. 
 
 82. Where such bill shows that both the as- 
 signee and the complaining creditors contested 
 the debt sought to be expunged before the ref- 
 eree and the District Court, and it was allowed 
 by both, and alleges as ground for review merely 
 that the debt was not established, and the as- 
 signee knowing that fact, was guilty of negli- 
 gence in not appealing, it does not show any 
 equity against the assignee. It should for that 
 purpose charge fraud and collusion between the 
 assignee and the creditor, lb. 
 
 83. Costs and fees. The standing auditor 
 has no jurisdiction, under General Order 30, to 
 tax a marshal's bill of costs. U. S. Dist. Ct., 
 1875, In matter of Rein, 49 How. 301. 
 
 84. In a case of involuntary bankruptcy, the 
 marshal allowed $2.50 per day for services of a 
 custodian placed by him in charge of the bank- 
 rupt's stock of goods, although in the^pinion of 
 the register he should have boxed and stored 
 the goods, and avoided the expense of a cus- 
 todian. The marshal's claim for a further al- 
 lowance under section 47 of the Bankrupt Act 
 rejected in this case, there being no evidence of 
 his having performed any extraordinary duties. 
 TJ. S. Dist. Ct., 1872, In matter of Hare, 43 How. 
 86. 
 
 85. The fees of a referee in an action pending 
 against a person who, before the decision there- 
 in, is declared a bankrupt, cannot properly be 
 paid by tlie assignee out of the funds in his 
 hands, even though the referee decides in favor 
 of the bankrupt, and it may be competent for 
 the assignee to take up the report, paying such 
 fees, and enter judgment thereon for the protec- 
 tion of the estate against a renewal of the claim. 
 tJ. S. Dist. Ct., 1872, In matter ofRosey, 43 How. 
 471. 
 
 86. Attorney, compensation of. An attor- 
 ney who has rendered services at the request of 
 an involuntary bankrupt in defending him 
 against the petition, preparing schedules, &c., if 
 refused payment by the assignee, may, upon his 
 petition, accompanied by the certificate of the 
 register in charge, that such services were bene- 
 ficial to the estate, and that the amount claimed 
 was reasonable and just, followed by the written 
 approval of the assignee, obtain an order from 
 the court for the payment of his claim out of 
 the funds in the hands of the assignee. TJ. S. 
 Dist. Ct., 1872, In matter of Clark, 43 How. 70. 
 
 87. In auditing an attorney's bill for se rvices 
 and disbursements for the benefit of the bank- 
 rupt estate, it is the duty of the register to ex- 
 amine the items as to the necessity and value of 
 the services, the occasion, necessity, and amount 
 of the disbursements, and how they came to be 
 rendered and made, and whether they are proper 
 items for such an account, or whether they 
 ought to be compensated through some other 
 form of proceeding. He cannot receive the at- 
 torney's bill as evidence of his claim, merely 
 upon the testimony of the attorney that he per- 
 formed the services mentioned therein, and that 
 they were worth the sura charged. U. S. Dist. 
 Ct., 1872, In matter of Staff, 48 How. 110. 
 
 . 88. It seems that creditors objecting to the al- 
 lowance of a claim for attorney's services in the 
 bankruptcy proceedings, do not suffer default or 
 any consequence of a default by not appearing 
 before the register at the hearing upon such 
 claim, and urging their objections ; nor is the 
 duty of the register, as to examining the ac- 
 count to ascertain how much ought to be allow- 
 ed, in any degree lessened by such non-appear- 
 ance, lb. 
 
 89. In a case of involuntary bankruptcy, the 
 attorney for the petitioning creditor may proper- 
 ly be allowed to be paid out of the funds in the 
 hands of the assignee, a reasonable compensa- 
 tion for his services in the case, as well as his 
 disbursements. U. S. Dist. Ct, 1872, In matter 
 of Robinson, 43 How. 25. 
 
 90. The proper practice in such a case is for 
 the attorney to present to the register in charge 
 a petition, directed to the court in bankruptcy, 
 asking to be allowed for such services and dis- 
 bursements. The register, thereupon, takes tes- 
 timony as to their necessity and value, and cer- 
 tifies the same with his opinion to the district 
 judge, who makes such order thereon as the tes- 
 timony seems to warrant. lb. 
 
 BATTEKY. 
 See Assault and Battert. 
 
 BEQUEST. 
 See Legacy ; Will 
 
 BETTING AKD GAMING. 
 
 1. Action for money deposited. An ac- 
 tion cannot be maintained against a person as 
 stake-holder to recover money deposited with 
 him as a bet or wager upon the result of a horse 
 race, unless it appears that there were two or 
 more contracting parties having mutual or re- 
 ciprocal rights to the money or things wagered. 
 Sup. Ct. Cir., 1872, Jordan v. Kent, 44 How. 206. 
 
 2. Such an- action cannot be maintained 
 against the secretary of a driving association for 
 money paid him as an entrance fee, to entitle 
 the party paying it to trot his horse over the 
 race course in competition with other horses for 
 a purse, there being no contract of wager be- 
 tween the parties. lb. 
 
 BILLS IN EQUITY. 
 See Pleadinq ; Peagticb. 
 
 BILL OF EXCEPTIONS. 
 See Appeals. 
 
 BILL OF LADING. 
 
 1. Who bound by terms of. The ship- 
 per of goods is bound by the terms of the bill of 
 
BILLS AND NOTES. 
 
 91 
 
 lading delivered to and accepted by him at the 
 time of the shipment. Those terms become the 
 contract between the parties. N. Y. Supr. Ct. 
 Sp. T., 1873, Bishop v. Empire Trans. Co., 48 
 How. 119. 
 
 2. Where he has an opportunity to examine 
 such bill before the goods are put in motion, or 
 has been accustomed to receive similar bills, 
 and has never dissented to tlie terms, he is to 
 be presumed to assent to them. lb. 
 
 , 3. If after receiving the bill he passes it to a 
 third person, and/^eceives a loan of money on it, 
 he will be held to have fully approved of its 
 terms. lb. 
 
 4. The party loaning money thereon is clearly 
 bound by the terms of the bill, as much so as 
 the purchaser of a bill of exchange is by the 
 language of such bill. lb. 
 
 6. Conditions. A clause in a bill of lading 
 providing that each consignment of goods may 
 be retained for all arrearages and charges due 
 the carrier on other goods by the same con- 
 signee and owner, is valid as applied to subse- 
 quent shipments of goods from the same con- 
 signor to the same consignee as previous ones. 
 N. Y. Supr. Ct., 1871, Bishop v. Empire Trans. 
 Co., 83 N. Y. Supr. (1 J. & Sp.) 99. 
 
 6. A clause requiring the presentation to the 
 carrier of bills of lading properly indorsed, as the 
 evidence upon which he shall deliver, is valid, 
 but one requiring such presentation before the 
 arrival of the goods at their place of destination, 
 in order to render a transfer binding on the car- 
 rier, or entitle the assignee to delivery, is in- 
 valid, lb. 
 
 7. The transfer of a bill of lading of goods to 
 a bank which discounts a draft on the con- 
 signees attached thereto, operates the same as 
 a delivery of the goods themselves to the as- 
 signee would do, and gives it the right to hold 
 tliem against the world, so far as may be ne- 
 cessary to pay the money advanced, with inter- 
 est. Com. App., 1874, First Nat. Bank of Cin- 
 cinnati V. Kelhj, 67 N. Y. (12 Sick.) 34. 
 
 8. In such a case, the bank, if not the abso- 
 lute owner, is a mortgagee in actual possession, 
 and need not file the papers as a chattel mort- 
 gage in order to secure its rights. lb. 
 
 9. Where L shipped grain to Buffalo, con- 
 signed to himself, care of N, and borrowed 
 money to - pay for the grain on security of the 
 bill of lading and a draft on N, which draft N 
 paid with money raised by pledging the bill of 
 lading, indorsed by him personally and as agent, 
 at the same time giving a receipt expressing 
 that the bill was held by the lender as collateral, 
 and on the arrival of the grain the master, by 
 N's direction, delivered the grain to warehouse- 
 men, whape receipt was indorsed to N, and the 
 grain was afterward delivered by them on orders 
 of N, without notice of the pledge of the bill of 
 lading ; — Held, that the warehousemen were not 
 liable to the pledgee for so delivering the grain. 
 Buff. Supr. Ct., 1873, Hazard v. Abel, 15 Abb. 
 N. S.413. 
 
 BILLS AND NOTES. 
 
 L Gekbeal Pbinciples 
 
 1. Parties; construction. 
 
 2. Consideration ; delivery. 
 
 3. Negotiability. 
 
 4. Transfer and indorsement. 
 
 5. Acceptance. 
 
 n. AltEKATION op B1I.I.S AND NoTES. 
 
 91 
 
 94. 
 
 lU. Demand ; Pbbsentment, Pkotbst, etc. 95 
 
 1. In general. 
 
 2. Demand, when necessary and what suf- 
 
 ficient. 
 
 3. Protest and notice. 
 
 IV. Consideration and Defense 96 
 
 1. In general. 
 
 2. As against bona fide holders. 
 
 a. Who is a bona fide holder. 
 
 b. When a bona fide holder will be 
 
 protected. 
 8. Indorsers how discharged. 
 v. Actions on Bills and Notes 102 
 
 I. Genbbal Fbincifles. 
 
 1. Parties ; construction. 
 
 1. Executed by agent. A promissory note 
 made by an agent in the transaction of the busi- 
 ness of his agency, and signed, with his own name, 
 adding the word " agent," is binding on the prin- 
 cipal. Sup. Ct., 1874, Green v. Skeel, 2 Hun, 485. 
 
 2. Executed by married woman. A 
 promissory note given by a married woman is 
 still invalid at common-law, unless given in a 
 case allowed by the Statute of 1860 (4 Edm. 
 Stats. 516), " concerning the rights and liabili- 
 ties of Irasband and wife." Sup. Ct., 1873, 
 Kinne v. Kinne, 45 How. 61. 
 
 3. The fact that, at the time of giving the 
 note, she had an expectation of receiving money 
 from her husband's estate on an anti-nuptial 
 agreement, upon his death, did not make the 
 note valid. lb. 
 
 4 A note made by a married woman as prin- 
 cipal with her husband as surety, upon a loan 
 negotiated by the husband, is not binding upon 
 her, where the money was not received by her, 
 without proof that she intended to charge her 
 separate estate, or that the money was applied 
 to the benefit thereof. Sup. Ct., 1873, Prender- 
 gast V. Borst, 7 Lans. 489. 
 
 5. Where it appears that she sent her written 
 order to the money lender directing him to send 
 her the money by the bearer, and he did so, the 
 presumption would be that she received the 
 moneys and applied them to the benefit of her 
 estate, but that will be overcome by proof that 
 the moneys were actually paid to her husband 
 and not to her. lb. 
 
 6. Where a married woman gives a note, and 
 expressly states on its face that it is " for the 
 benefit of my separate estate, upon which I 
 make this note a lien and charge," that is a suf- 
 ficient expression of her intent to charge her 
 separate estate. Sup. Ct., 1871, Merchants Bank 
 
 V. Scott, 69 Barb. 641. 
 
 7. Firm note after dissolution. A note 
 given in the name of a firm, after its dissolution, 
 is nevertheless valid if made with the assent of 
 the partners, and for a debt of the firm. Sup. 
 Ct, 1874, Randolph v. Peck, 1 Hun, 138. 
 
 2. Consideration. 
 
 8. Advances. The advance of his individ- 
 ual funds by one joint adventurer, for the bene- 
 fit of all, is a valid consideration for a note exe- 
 cuted by the others to him. Ct. App., 1873, 
 Gordon v. Boppe, 55 N. Y. (10 Sick.) 665. 
 
 9. Bill of exchange. The drawing and de- 
 livery of a bill of exchange is a sufficient con- 
 sideration for a promissory note for the same 
 amount given by the payee thereof to the 
 drawer. Ct. App., 1878, Newman v. Frost, 52 
 N. Y. (7 Sick.) 422. 
 
92 
 
 BILLS AND NOTES. 
 
 10. Promise of marriage. A promissory 
 note given by a man to a woman, in considera- 
 tion of lier promise to marry liim, which prom- 
 ise is afterward performed, is founded upon a 
 good consideration, and is valid under the stat- 
 ute of frauds. Sup. Ct., 1871, Wright v. Wright, 
 59 Barb. 505; AfE'd, S. C, 54 N. Y. (9 Sick.) 
 437. S. P. Banfield v. Rumsey, 2 Hun, 112. 
 
 11. Sucli note is not extinguished by the sub- 
 sequent marriage of the parties, the common- 
 law rule on that subject being changed by chap- 
 ter 375, Laws of 1869. lb. 
 
 12. Subscription. Where an insurance 
 company authorized to receive notes for pre- 
 miums in advance, after receiving subscriptions 
 to the amount of $40,000, voted to receive a 
 subscription of f4<)0,000, to be binding when 
 $300,000 was subscribed, including the $40,000 ; 
 and by the subscription paper the subscribers 
 agreed to give their notes in advance of pre- 
 miums, the subscription, which was stated to be 
 toward the $400,000 authorized by the board, 
 not to be binding until $300,000 was sub- 
 scribed, but no reference being made to the 
 $40,000, — Held, that a valid subscription of 
 $300,000, exclusive of the $40,000, was necessary 
 to bind the subscribers, and a note given by one 
 of them upon being falsely informed that the 
 requisite amount had been obtained, could not 
 be enforced. Com. App., 1872, Chesbrough v. 
 Wright, 51 K. Y. (6 Sick.) 662. 
 
 13. Delivery on condition. A bill or note 
 may be delivered to the person beneficially in- 
 terested therein, upon conditions the observance 
 of which is essential to its validity ; and the 
 annexing of such conditions to the delivery is 
 not an oral contradiction of tlie written obliga- 
 gation, though negotiable, as between the par- 
 ties to it or others having notice. Gt. App., 
 1873, Benton v. Maiiin, 52 N. Y. (7 Sick.) 570. 
 
 14. A duplicate bill, made to replace one lost, 
 may be delivered upon the valid condition that 
 the drawer shall not be liable for past laches. lb. 
 
 15. The drawer may also make it a condition 
 of the delivery of such duplicate, that it be held 
 one day before forwarding ; and he will not be 
 responsible, though a loss result in consequence, 
 provided the bill would, but for the prior laches 
 of the holder, have been paid on demand. lb. 
 
 16. Presumption, as to. The presumption 
 that the making, acceptance, transfer and in- 
 dorsement were for legal and sufficient consid- 
 eration, and that the indorser had a cause of 
 action for the face of the bill against the maker, 
 is applicable to a bill of exchange drawn by a 
 corporation of another State on its treasurer in 
 New York, and subsequently indorsed by the 
 payee, and discounted for the corporation. N. 
 Y. Supr. Ct., 1873, Union Nat. Bank of Pitts- 
 burg V. Wheeler, 36 N. Y. Supr. (4 J. & Sp.) 
 536. 
 
 3. Negotiability. 
 
 17. Contingent order. An order for money, 
 which, by its express terms, is made payable 
 from an anticipated specific fund, not then in 
 existence, but contingent upon some future 
 event, is not a draft, nor negotiable, and no title 
 to it or to the indebtedness for which it was 
 given, will pass by a mere indorsement and 
 delivery of it. Ct. App., 1871, Kenny v. Hinds, 
 44 How. 7. 
 
 18. So held in case of an order, as follows : 
 " Please pay J H, or order, $400, from the pro- 
 ceeds of L & J's bond, and charge the same to 
 the account of Yours, &c., A J H,." — directed 
 
 to C H S — and by him " accepted, payable as 
 soon as this amount is collected accruing to 
 drawer," and indorsed on the face in blank by 
 the payee. Xb. 
 
 19. Payable in gold. A bill of exchange 
 drawn at Montreal, payable in New York in 
 gold dollars, is a negotiable instrument. Ct. 
 App., 1870, Chrysler v. Rends, 43 N. Y. (4 Hand,) 
 209. 
 
 20. Payable in legal tender. A written 
 ! instrument as follows : 
 
 $12,000 San Francisco, Feb. 2, 1865. 
 
 On demand, at 3 o'clock, p. m., of that day (no 
 grace) for value received in legal tender notes 
 issued by the government of the U. S., I, G N F, 
 promise to pay A G or order $12,000 with in- 
 terest from date, at the rate of two per cent, per 
 month, until paid, payable monthly ; both prin- 
 cipal and interest payable in the legal tender 
 notes issued by the government of the U. S. 
 
 G. N. F." 
 is in substance a promissory note, and is nego- 
 tiable and transferable by indorsement. N. Y. 
 Supr. Ct., Sp. T., 1873, Kelly v. Ferguson, 46 
 How. 411. 
 
 21. Where such note is received by the payee 
 as security for a loan of $6,000 in gold, and 
 after its maturity such payee borrows money on 
 his own note, transferring and indorsing the 
 former note as collateral security, the indorsees 
 take it subject to the same defenses as might 
 have been set up against the payee, and can col- 
 lect only the amount for which lie held it as 
 security, that is $6,000 in gold and the interest 
 also in gold. lb. 
 
 4. Transfer and indorsement. 
 
 22. By delivery. The title to a note pay- 
 able to order will pass by a delivery thereof for 
 a valuable consideration, without indorsement ; 
 but the transferee will, ordinarily, take it sub- 
 ject to the equities between the original parties. 
 N. Y. Supr. Ct., 1875, Raynor v. Hoagtand, 39 
 N. Y. Supr. (7 J. & Sp.) 11. 
 
 23. If such note is transferred by the maker, 
 in pursuance of an agreement between himself, 
 the payee, and the transferee, in renewal of a 
 former note made by him, payable to and in- 
 dorsed by the same payee, held by the trans- 
 feree, on which the liability of the maker and 
 the payee has become fixed, and the former 
 note is given up, the maker of such note is 
 liable thereon to the transferee, and it is not 
 subject to the equities between the original par- 
 ties, even though the payee wrongfully refuses 
 to indorse it upon request. lb. 
 
 24 Dra-wn to order of cashier. A bill 
 drawn to the order of a person with^the addi- 
 tion of the word " cashier," is the property of the 
 bank of which such person is cashier ; and no 
 indorsement by him is necessary to transfer to 
 it the title, or to enable it to maintain an action 
 thereon. Com. App., 1871, First National Bank of 
 Angelica v. Hall, 44 N. Y. (6 Hand,) 395. 
 
 25. Transfer for collection. Where busi- 
 ness paper, received by a banker for collection, 
 is forwarded by him to his correspondent for 
 the same purpose in the usual course of busi- 
 ness, and without any express agreement in re- 
 lation to it,- the title does not become vested in 
 such correspondent, and he cannot retain it or 
 its proceeds as against the real owner, although 
 such banker may be indebted to him for remit- 
 tances upon general account. Ct. App., 1872, 
 Dickerson v. Wason, 47 N. Y. (2 Sick.) 439; 
 Rev'g S. C, 54 Barb. 230. 
 
BILLS AND NOTES. 
 
 93 
 
 26. Indorsement by agent. The indorse- 
 ment of a note by an agent of the payee, in her 
 name and by her authority, without tlie addi- 
 tion of liis name as agent, is sufficient to trans- 
 fer the title and bind her as indorser. Sup. 
 Ct., 1871, First Nat. Bank of Canandaigua v. Whit- 
 ney, 4 Lans. 34. 
 
 27. If an agent, authorized only to demand 
 and receive money or other property belonging 
 to the principal as heir of a deceased person, 
 from the administrator or others, sells and 
 indorses with the name of liis principal ^, draft 
 recteived by virtue of that authority, no title 
 passes to the indorsee, because the act is un- 
 authorized. N. Y. Supr. Ct., 1872, FiUey v. Gil- 
 man, 34 N. Y. Supr. (2 J. & Sp.) 339. 
 
 28. Indorsement before delivery. In this 
 State, a person indorsing a promissory note 
 before its delivery to the payee ia presumed to 
 have intended to become liable only as second 
 indorser, and so not liable to the payee ; but 
 that presumption may be rebutted by parol 
 proof that the indorsement was made to give the 
 maker credit with the pavee. Ct. App., 1875, 
 Coulter V. Richmond, 69 N. Y. (14 Sick.) 478. 
 
 29. Proof tliat the maker for several years 
 successively borrowed $5,000, in U. S. bonds 
 from the payee, giving each year a note for that 
 amount signed by himself as principal and his 
 brother as surety, and finally purchased the 
 same bonds, giving a note signed by him and 
 indorsed by his brother, is sufficient to sustain a 
 finding that the brother indorsed the note at the 
 maker's request to give credit to the maker and 
 enable him to, purchase the bonds, and. was 
 therefore liable as first indorsee to the payee, 
 lb. 
 
 SO. An assignment of such note by the payee, 
 at the request of the indorser, to a third party 
 to enable him to receive the property of the 
 bankrupt maker and pay a percentage to cred- 
 itors, reserving the claim against the indorser, 
 leaves the payee's claim against the indorser 
 good for the amount unpaid out of the property 
 of the maker, and he can enforce it. lb. 
 
 31. Where a note payable to a person named 
 or order, is indorsed by another before delivery, 
 the payee, in the absence of any evidence 
 showing an intention on the part of the latter to 
 become surety for the maker, acquires no right 
 of action against such indorser and can transfer 
 none to another except upon assuming the re- 
 sponsibility of prior indorser to him. Ct. App., 
 1872, Phelps v. Vlscher, 50 N. Y. (5 Sick.) 69. 
 
 32. An indorser of a note before delivery, who 
 puts his name upon the paper for the purpose 
 and with the intention of becoming security to 
 the payee of the note for the debt of a third per- 
 son, will be so held, though' standing in form as 
 second indorser. Com. App., 1872, Clothier v. 
 Adriance, 61 N. Y. (6 Sick.) 322. 
 
 33. Guaranty by indorsement. The in- 
 dorsement of a promissory note is a guaranty 
 on the part of the indorser, that the signatures 
 of the makers and the prior indorsers are 
 genuine, and that such prior parties had power 
 to do what they had done, and to bind them- 
 selves by their contract. Sup. Ct., 1874,. Dal- 
 rumple v. Sillenbrand, 2 Hun, 488. Aff'd by Ct. 
 App. 
 
 34. The warranty of genumeness ordinarily 
 implied upon the sale of a note or other written 
 obligation, is excluded where the vendor ex- 
 pressly declines to warrant its genuineness. Ct. 
 App., 1875, Bell v. Dagg, 60 N. Y. (15 Sick.) 
 528. 
 
 85. A general refusal by the vendor to guar- 
 
 anty would be understood as confined to the 
 question of the maker's responsibility ; but where 
 the question of genuineness was discussed, and 
 the purcliaser claimed knowledge of the signa- 
 ture and its genuineness, and the vendor dis- 
 claimed knowledge tliereof, and placed his 
 refusal to guaranty upon the ground of the su- 
 perior knowledge of the purchaser, and of the 
 amount of discount demanded, there is no room 
 for implying a guaranty of genuineness. lb. 
 
 86. Liability of indorser. An indorser 
 cannot be held liable on a promise to pay a note 
 indorsed by him, which has not been duly 
 presented for payment, except upon proof that 
 he made such promise after notice or knowledge 
 that he was not liable on the note by reason of 
 defects in the notary's proceedings. Sup. Ct., 
 1876, Baer v. Leppert, 5 Hun, 453. 
 
 37. An agreement between a prior and subse- 
 quent indorser of a promissory note, made on a 
 re-transfer of the note to the former, that he 
 shall have recourse against the latter, is valid 
 and may be enforced. Com. App., 1873, Hubbard 
 V. Matthews, 54 N. Y. (9 Sick.) 43. 
 
 88. A joint owner of a promissory note cannot 
 be held liable as an indorser thereof, either by 
 his co-owner, or by any other person who is 
 cognizant of his relation to the note. Sup. Ct., 
 1873, Norton v. Edgar, 68 Barb. 176. 
 
 39. One joint owner cannot without authority 
 sell his co-owner's interest in a note ; but 
 whether the purchaser, upon an authorized sale, 
 can hold such co-owner as indorser, depends 
 upon whether he obtained the note under such 
 circumstances as will estop the latter from con- 
 testing his liability. lb. 
 
 40. One who purchases the interest of one 
 joint owner in a note at a constable's sale on 
 execution, does not thereby acquire any interest 
 in an indorsement thereof by such joint owner, 
 on which an action can be maintained. lb. 
 
 41. Right of stoppage in transitu. The 
 principle on which the right of stoppage in trans- 
 itu is based is applicable to bills of exchange ; 
 and a person who has purchased bills with his 
 own money, at the request and for the benefit 
 of another, and has sent them to such cither, re- 
 lying on his solvency, may on learning of his in- 
 solvency, reclaim them, either before such party 
 receives them, or at any time before there is a 
 change of possession and title. Sup. Ct., 1872, 
 Muller V. Fondir, 6 Lans. 472 ; Aff'd, S. C, 55 N. 
 Y. (10 Sick.) 826. 
 
 42. Such right can be exercised notwithstand- 
 ing the party to whom they were sent may have 
 obtained a loan on the strength of a telegram 
 from the sender stating that they have been 
 sent, upon a promise to deliver them as security 
 when received, when such telegram merely 
 states their remittance and the amount, without 
 anything to indicate the title or the purpose for 
 which they were sent. lb. 
 
 43. The mere promise to hand over the bills 
 when received, is not a present transfer, deliv- 
 ery, or assignment of them ; and even a trans- 
 fer of negotiable bills without indorsement, con- 
 fers no other rights than those possessed by the 
 transferer, but they remain subject to all equi- 
 ties as against him. lb. 
 
 44. Rights of holder. The transfer of a 
 note, whether in payment or merely as security, 
 entitles the indorsee presumptively to all the 
 security afforded by such note, against both 
 maker and indorser, and the recovery of a judg- 
 ment against the indorser, without any satisfac- 
 tion, does not operate, either at law or in equity, 
 as a re-transfer of the note to the indorser, or 
 
94 
 
 BILLS AND NOTES. 
 
 deprive the indorsee of the right to sue the 
 maker. Sup. Ct., 1875, Russell |- Envin Manuf. 
 Co. V. Carpenter, 6 Hun, 162. 
 
 45. One having possession and all the evi- 
 dence of ownership of a promissory note by con- 
 sent of tlie real owner may bind the latter by 
 an agreement with the maker to extend the 
 time of payment. Ct. App., 1872, Scoville v. 
 Landon, 50 N. Y. (5 Sick.) 686. 
 
 5. Acceptance. 
 
 46. Admission by. A drawee of a bill is 
 presumed to know the handwriting of his cor- 
 respondent, and if he pays or accepts a bill to 
 whicli the name of the drawer has been forged, 
 he is bound by the act and can neither repudi- 
 ate the acceptance nor recover back the money 
 paid. Ct. App., 1871, National Park Bank v. 
 Ninth National Bank, 46 N. Y. (1 Sick.) 77 ; 
 Eev'g S. C, 56 Barb. 87 ; 7 Abb. N. S. 120 ; and 
 Same v. Fourth National Bank, id. ; Rev'g S. C, 
 7 Abb. N. S. 138. 
 
 The rule is the same, whether the acceptance 
 is general, or for honor, or after protest. Sup. 
 Ct., 1863, iSalt Springs Bk. v. Syracuse Savings 
 Bk., 62 Barb. 101. 
 
 47. The drawee of a draft is not bound to 
 know the signature of the payee, and does not 
 admit its genuineness by aicoeptance and pay- 
 ment ; but if the indorsement of the payee 
 proves to be forged, he can recover back the 
 money paid from the person to whom he paid 
 it, unless such person acted merely as agent and 
 disclosed his agency. Com. App., 1873, Holt v. 
 Bx>ss, 54 N. Y. (9 Sick.) 472; AfE'g S. C, 59 
 Barb. 554. 
 
 48. By officer of corporation. An accept- 
 ance of a draft drawn on a corporation by a 
 wrong name, indorsed thereon by the proper 
 officer of the corporation intended, with the ad- 
 dition of the name of his office, is in legal effect 
 the contract of the corporation if done in its 
 business and on its behalf, and it is bound there- 
 by. Sup. Gt., 1875, Haskall v. Life Asso. of Amer- 
 ica, 6 Hun, 151. 
 
 49. After discount. The acceptance of a bill 
 after it has been discounted in good faith and 
 for value, renders the acceptor liable to tlie 
 holder, although it was so accepted for the ac - 
 commodation of the drawer, and that fact was 
 known to the party discounting it. N. Y. Supr. 
 Ct, 1876, First Nat. Bank of Portland v. Schuyler, 
 39 N. Y. Supr. (7 J. & Sp.) 440. 
 
 50. By retaining. Where the drawee of an 
 order for the payment of a specific sum out of 
 moneys due or to become due the drawer on a 
 particular account does not accept it in writing, 
 but pays on it the amount then due the drawer, 
 taking a receipt therefor on the back of the 
 order, and keeping the same as a voucher, he 
 d.oes not, by refusing to deliver up the order to 
 the payee, become liable as acceptor ioi the 
 amount, under the provisions of the Revised 
 Statutes (1 Edm. Stats. 722). Sup. Ct., 1876, 
 Gates V. Eno, 4 Hun, 96. 
 
 51. Promise to accept. A letter in which 
 the writers say, " We can at present only au- 
 thorize you to draw at sig^t for $5,000, at the 
 very outside, and then do not make any more 
 sight drafts until you hear from us again," is a 
 gi&cient promise to accept drafts to the amount 
 of $6,000, to make the writers liable as accept- 
 ors on drafts drawn in pursuance of such au- 
 thority. N. Y. Supr. Ct., 1872, Merchants 
 Exch. Nat. Bank of Memphis v. Cardozo, 86 N. Y. 
 Supr. (3 J. &Sp.) 162. 
 
 52. The fact that such letter speaks of the 
 difficulty of making cash advances and then 
 says, " We were in hopes you would be able to 
 negotiate time bills, say, at any rate, thirty 
 days, which would enable us to get the cotton 
 here, at least before the draft matured," does 
 not affect that construction, nor make it merely 
 an authority to draw against bills of lading, 
 nor contingent upon an inability to negotiate 
 time bills. lb. 
 
 63. In order to have a written promise, made 
 previeus to the drawing of a bill, operate as an 
 acceptance, such promise must be unconditional. 
 If it is conditional, the fact that tlie conditions 
 are performed is unimportant. N. Y. Supr. Ct., 
 1870, Harrison v. Smith, 2 Sweeny, 669. 
 
 54. An agreement to accept " all drafts, with 
 bills of lading of first cost on oysters and other 
 produce in season," drawn by A, — Held, not to 
 amount to an acceptance. lb. 
 
 55. A promise by letter that if B an employee 
 of a company, will make an orderfor a portion 
 of his salary, and the payee will file it with the 
 treasurer of the company, the sum named shall 
 be paid monthly so long as B remains in its 
 employ and the order remains unrevoked, is not 
 binding as an acceptance, because conditional. 
 DwiGHT, C, dissents. Com. App., 1874, Shaver v. 
 Western Un. Tel. Co., 57 N. Y. (12 Sick.) 459. 
 
 56. A letter written by B to the treasurer, 
 countermanding such order " if not accepted," 
 amounts to a revocation, if it has not then been 
 expressly accepted. lb. 
 
 n. Alteration or Bills and Notes. 
 
 67. Alteration. A note is not vitiated or 
 destroyed by an alteration which is not mate- 
 rial. Sup. Ct, 1871, Flint V. Craig, 59 Barb. 
 319. 
 
 68. An alteration is material and vitiating 
 which, in any event, may alter the promisor's 
 liability, if made without his consent at the 
 time, unless subsequently approved by liim. lb. 
 
 69. Only the makers of a note or their privies 
 can take advantage of an alteration therein as a 
 defense. A thir^ person, not a party to, or in 
 privity with a party to a note, but who has re- 
 ceived it merely as collateral security for the 
 payment of a loan, cannot set up such an altera- 
 tion as a defense to an action for the conversion 
 of the note, founded upon his refusal to return 
 it after repayment of the loan. lb. 
 
 60. An alteration in a note by erasing the 
 words, " to the order of " and inserting " or 
 bearer " instead, is material and avoids the note. 
 Ct. App., 1874, Booth V. Powers, 56 N. Y. (10 
 Sick.) 22. 
 
 61. In such case, it matters not whether the 
 alteration was with fraudulent intent or not, save 
 as the existence of such intention affects the 
 right to resort to the original indebtedness. lb. 
 
 62. The fraudulent insertion of the words 
 " with interest," in a note, without the knowl- 
 edge or consent of the maker, vitiates the note, 
 and the holder cannot maintain an action on the 
 original consideration. Ct App., 1874, Meyer 
 V. Huncke, 56 N. Y. (10 Sick.) 412 ; Kev'g S. C. 
 65 Barb. 304. 
 
 63. The indorsement for the accommodation 
 of the maker, and delivery to him of a note per- 
 fect in all respects except that the time and 
 place of payment are left blank, although it 
 authorizes him to insert such time and place as he 
 may choose, does not authorize the addition of 
 the words " with interest " to the note, but such 
 addition will avoid the no^A us against the in- 
 
BILLS AND NOTES. 
 
 95 
 
 dorser. Ot. App. 1874, McGiatk v. Clark, 56 
 N. Y. (11 Sick.) 84. 
 
 64. A party who delivers to another his note 
 perfect in all respects, except that a blank is 
 left after the word " at " for the place of pay- 
 ment, thereby impliedly authorizes any bona 
 Jide holder to insert the place of payment ; 
 and he will be liable thereon to a bona 
 Jide holder though the blank be filled contrary 
 to the agreement or intention of the original 
 parties. Com. App., 1873, Redlich v. Doll, 64 
 N. T. (9 Sick.) 284. 
 
 66. The rule is the same although the note 
 was delirered not to be used or filled up in any 
 way. lb. 
 
 66. The addition of another signature to a 
 note reading " I promise to pay," &c., after such 
 note has been delivered, and without the knowl- 
 edge or consent of the original maker, is not 
 such an alteration as will render it invalid as to 
 the latter, but a bona Jide holder is entitled to 
 recover thereon against both of such makers. 
 Sup. Ct., 1874, Cardv. Miller, 1 Hun, 504. 
 
 67. A memorandum upon a note, made and 
 delivered cotemporaneously with it, and intend- 
 ed by tlie parties as a part of the contract and to 
 give effect to their actual agreement, is a part 
 of the note and qualifies it, tlie same as if insert- 
 ed in the body of the instrument, and a severance 
 of such memorandum from the note without 
 the consent of the maker, is a material altera- 
 tion, which will destroy the note even in the 
 hands of an innocent indorsee. Ct. App., 1872, 
 
 Benedict \. Cowden, 49 N.T. ( 4 Sick.) 896. 
 
 III. Demand ; Fbesenthent, Fboiest, &c. 
 1. In general. 
 
 68. Says of grace. The act abolishing 
 days of grace on bills and notes which are, on 
 their face, payable on any specified day, or in 
 any number of days after date or sight " (ch. 
 416, Laws of 1857, 4 Edm. Stats., 458), does 
 not apply to a bill payable in a given number 
 of months or years after date. Ct. App., 1872 , 
 Commercial Bank of Kentucky v. Varnum, 49 
 N. Y. (4 Sick.) 269. 
 
 69. 'When payable. A note dated Decem- 
 ber 11th, and payable four months " after date 
 without grace " is due on the 11th and not on 
 the 12th of the following ApriL N. Y. C.P., 
 Eoehner v. Knickerbocker i. Ins. Co., 4 Daly, 512. 
 
 70. Security notes given to an insurance 
 company as additional security to its dealers, 
 under a statutory provision making them avail- 
 able for payment of liabilities, and for any other 
 purpose connected with the business of the com- 
 pany, are valid, by virtue of the statute, in the 
 hands of the company, although no policies were 
 issued thereon, and they become due at the 
 time when they are, in compliance with the law, 
 made payable, whether losses have then oc- 
 curred, assessments been made, or the capital 
 been exhausted, or not. Sup. Ct., 1873, Osgood 
 V. Strauss, 65 Barb. 888 ; AfE'd S. C, 56 N. Y.' (10 
 Sick.) 672. 
 
 2. Demand when necessary and what sufficient, 
 
 71. WTien necessary. Where a note is 
 payable on a day certain, no demand is neces- 
 sary in order to charge the maker or to sustain 
 an action thereon. N. Y. C. P. 1873, Roehner v. 
 Knickerbocker L. Ins. Co., 4 Daly, 512. 
 
 72. WTiat sufiScient. A demand of pay- 
 ment after business hours, af; the place where 
 
 a note is by its terms payable, if made of a per- 
 son authorized to answer the demand, will charge 
 an indorser, although the latter was ready to 
 pay the same and for that purpose had sent the 
 maker several times during the day, and up to 
 the close of business hours, to such place of pay- 
 ment, to ascertain whether the note was there 
 and, if so, its amount. Ct. App., 1874, Salt 
 Springs National Bank v. Burton, 58 N. Y. (13 
 Sick.) 431. 
 
 78. When a note is made payable at a place 
 generally, without designation of any particular 
 place therein at which payment is to be made or 
 sought, demand should be made at the place of 
 business or residence of the maker, if he have 
 either in the place, and if not, then it is sufficient 
 that the holder is at the place on the day of 
 payment, with the note, ready to receive the 
 money. Ct. App., 1872, Meyer v. Hibsher, 47 
 N. Y. (2 Sick.) 265. 
 
 74. Although no place of payment is desig- 
 nated by the note, the parties may orally agree 
 upon a place where it shall be presented for 
 payment, so as to make a demand there suffi- 
 cient to bind an indorser. lb. 
 
 75. It is sufficient to charge an indorser of a 
 note made by partners in their firm name, no 
 place of payment being named, where, before its 
 maturity, the partnership is dissolved by 
 bankruptcy and the separation of the partners, 
 if demand is made of one of such former part- 
 ners, at the proper time, and due notice given. 
 Ct. App., 1876, Gates v. Beecher, 60 N. Y. (15 
 Sick.) 518. 
 
 76. A notice of demand and non-payment is 
 sufficient if it reasonably apprizes the party of 
 the particular paper upon whicli he is sought to 
 be charged. An omission to state the time 
 when it became due does not Invalidate the 
 notice, in the absence of proof that there is an- 
 other note to which the description might apply. 
 
 77. Where a note containing a recital of the 
 deposit of collateral security with the payee, 
 was presented to the maker for payment, and 
 lie offered to pay on surrender of the collaterals 
 which were then in possession of the holder of 
 the note, but refused payment solely on the 
 ground of their non-production, — Held, that the 
 demand and refusal were insufficient to charge 
 the indorser. Ct. App., 1872, Ocean Nat. Bank 
 V. Fant, 60 N. Y. (6 Sick.) 474. 
 
 78. Omission, effect of. The omission of 
 demand and notice, when it cannot possibly 
 operate to the injury of the indorser of a note, 
 or drawer of a biU, does not discharge him ; 
 but the mere insolvency of the maker or draw- 
 er does not excuse neglect in presenting. Ct. 
 App., 1873, Smith v. Miller, 62 N. Y. (7 Sick.) 
 545. 
 
 79. Where a check is taken in payment for a 
 draft, and payment refused thereon, the neglect, 
 of the holder to again demand payment of the 
 draft, and to give notice, thereof to the drawer, 
 will discharge the latter. lb. 
 
 80. Delay in presenting. The laches of the 
 payee of a draft, receiving a check from the 
 drawee in payment thereof, good on the day 
 when delivered, in not presenting the same for 
 payment until the following day, is sufficient to 
 discharge the drawer. lb. 
 
 81. Waiver of demand. A promise by an 
 indorser, after notice of the non-payment of a 
 note, and with full knowledge of all tlie circum- 
 stances attending presentment and demand, to 
 pay the note or give a new one, will constitute a 
 waiver of any irregularities in presenting or de- 
 
96 
 
 BILLS AND NOTES. 
 
 manding the same, and even of presentment or 
 demand Itself. Ct. App., 1872, Meyer v. Hib- 
 sher, 47 N. Y. (2 Sick.) 265. 
 
 2. Protest and Notice, 
 
 82. When necessary. Protest of a domes- 
 tic note is unnecessary. N. Y. C. P., 1872, 
 Brennan T. Lawry, 4 Daly, 253. 
 
 83. A bill of exchange drawn in one State 
 upon a citizen of another State, is a foreign bill, 
 and protest is necessary to charge the indorser. 
 Ct. App., 1872, Commercial Bank of Kentucky v. 
 Varnum, 49 N. Y. (4 Sick.) 269. 
 
 84. The rule of law which requires a protest 
 of a foreign bill of exchange, is founded wholly 
 upon the custom of merchants, and in a place 
 where usage has sanctioned presentation and 
 demand by a notary's clerk, such presentation 
 and demand will be effectual to charge in- 
 dorsers. lb. 
 
 85. Service of notice. Notice of protest 
 served upon the general agent of a firm for the 
 liquidation of its affairs, will bind the firm. 
 Ct. App., 1874, FosstB V. Hubbard, 55 N. Y. (10 
 Sick.) 465. 
 
 86. The degree of diligence required under 
 section 3, chapter 416, Laws of 1857, to charge 
 an indorser, where the place of payment and 
 the residence of the indorser are the same, is 
 not other or greater than that required by the 
 common law where they are different. Com. 
 App., 1872, Regua v. Collins, 51 N. Y. (6 Sick.) 
 144. 
 
 87. Where an indorser had resided in the 
 same place where the note was payable for ten 
 years prior to the indorsement, but removed 
 within six months thereafter, and the holder, 
 after making inquiry of a number of persons 
 shortly before maturity of the note, and among 
 them a relative of the indorser, and being in- 
 formed by him that the place of residence of 
 the latter was unchanged, told the notary to 
 mail notice to her at that place, which he did 
 accordingly, — Held, suflBcient imder that statute 
 to charge the indorser. lb. 
 
 88. On the next day after presentment of a 
 note, a clerk of the holders took a notice of 
 non-payment, and looked in the city directory 
 for the address of an indorser, which was not 
 upon the note, but not finding it there, inquired 
 of one of the makers, who gave him a wrong 
 address, to which he thereupon mailed the 
 notice, — Held, to be due diligence and sufiicient 
 to charge the indorser, even if he did not re- 
 ceive the notice. Com. App., 1872, Gamtry v. 
 Doane, 51 N. Y. (6 Siok.) 84. 
 
 89. During civil 'war. In order to charge 
 an indorser, residing in South Carolina, of a 
 note payable in New York, which matured 
 while all commercial Intercourse was suspended 
 by the civil war, although entitled to notice of 
 dishonor, the holder was under no obligation to 
 send such notice while the impediment con- 
 tinued ; and the deposit of such a notice in the 
 post-office at New York, directed to such in- 
 dorser at his residence in South Carolina, in 
 October, 1861, was not sufficient for that pur- 
 pose. Sup. Ct., 1870, Harden v. Boyce, 59 Barb. 
 425. 
 
 90. It was the duty of the holder to send such 
 notice when the interruption of intercourse 
 ceased, and he could not cast upon the govern- 
 ment the burden of preserving his letter until 
 that time, and then forwarding it. lb. 
 
 91. Although a partnership is dissolved by the 
 existence of a state of war between the coun- 
 
 tries where the several partners reside, such 
 partners must all, for the purpose of receiving 
 notice of the dishonor of commercial paper, be 
 deemed represented by the member of the firm, 
 or an agent, with power to receive such notice, 
 created before the war, residing or remaining 
 within the jurisdiction of the belligerent whose 
 authority extends over the place of business of 
 the firm, and notice served upon such agent, or 
 at such place of business, will bind all. Com. 
 App., 1873, Hubbard v. Matthews, 54 N. Y. (9 
 Sick.) 43. 
 
 92. Evidence of. A certificate of present- 
 ment and protest made by a notary upon presen- 
 tation and demand made by his clerk, is void. 
 Com. App., 1872, Gawtry v. Doane, 51 N. Y. (6 
 Sick.) 84. 
 
 IV. Consideration and Defense. 
 
 1. In General. 
 
 93. The Alteration of a promissory note by 
 the addition of the words " with interest," after 
 the same has been indorsed, is no defense to 
 the indorser, if he subsequently, with full 
 knowledge of the fact, ratifies and promises to 
 pay the same. Sup. Ct., 1875, National State 
 Bank of Troy v. Rising, 4 Hun, 793. 
 
 94. Accommodation paper. One who 
 takes a note with notice that the indorsement 
 on it was for accommodation of the maker, and 
 does not part with anything on the faith of its 
 transfer to him, stands in no better position than 
 the maker, and cannot recover thereon against 
 the indorser. Sup. Ct., 1874, Powers v. French, 
 1 Hun, 582. 
 
 95. Want of consideration for a promissory 
 note will defeat a recovery on it in an action 
 between the parties, or brought by a transferee 
 affected with notice ; but in respect to a promis- 
 sory note a consideration will be presumed un- 
 til the contrary is shown. lb. 
 
 96. A person who indorses in blank for the 
 accommodation of the maker, a note given by 
 the latter for repairs done by the payee to liis 
 wagon, to enable the maker to procure a release 
 of such wagon from the payee's lien, is liable to 
 such payee thereon. N. Y. C. P., Sp. T., 1871, 
 Lufi V. Graham, 44 How. 152 ; S. C, 13 Abb. 
 N. S. 175. 
 
 97. Where a note is made at the request and 
 for the accommodation of the indorsee, without 
 any consideration as between the maker and the 
 payee or the indorsee, those facts constitute a 
 good defense in favor of such maker. N. Y. 
 Supr. Ct., 1875, Murphy v. Keyes, 39 N. Y. Supr. 
 (7J. &Sp.)18. 
 
 98. Where parties for whose accommodation 
 a note is made indorse it and place it in the 
 hands of another to be discounted, and he indor- 
 ses it for their accommodation and procures it to 
 be discounted at a usurious rate, and transmits 
 the proceeds to them, such last indorser cannot, 
 by paying the note after protest, acquire any 
 greatet rightthan the person who discounted it 
 at such usurious rate, and cannot enforce it 
 against the makers. N. Y. Supr. Ct., 1874, 
 Hooper V. De Long, 87 N. Y. Supr. (5 J. & Sp.) 
 
 99. One who indorses a promissory note at the 
 request of the maker, knowing that it is made 
 a prerequisite to a loan to be obtained from the 
 payee, is liable as indorser to the latter, the same 
 as if the apparent relations of the parties were 
 the actual ones. Ct. App., 1872, Meyer v. Hib- 
 sher, 47 N. Y., (2 Siok.) 265. 
 
BILLS. AND NOTES. 
 
 97 
 
 100. One who indorses, for the accommoda- 
 tion of the maker, a note made payable to him- 
 self and another, upon the express agreement 
 that the same shall not be used unless the other 
 payee also indorses it, is not liable as indorser 
 to one to whom the note was transferred by the 
 maker for value, with the name of the other 
 payee forged as indorser thereon. Sup. Ct. 
 1871, Smith v. Boyer, 41 How. 258. 
 
 101. Such accommodation indorser cannot be 
 held to have guaranteed the genuineness of the 
 other indorser's signature ; and the forged in- 
 dorsement does not transfer the title to the 
 note. lb. 
 
 102. Agreement not to sue. A written or 
 verbal agreement between an indorser and liis 
 immediate indorsee, that the latter shall not sue 
 the former, is a good defense to an action 
 brought in violation of such agreement. Sup. 
 Ct, 1875, Bruce v. Wright, 3 Hun, 548. 
 
 103. Duress. A surety may avail himself of 
 the defense that his signature to a note was ob- 
 tained by duress, or by undue influence exerted 
 by one in whom confidence was placed. Sup. 
 Ct., 1873, IngersoU v. Roe, 65 Barb. 846. 
 
 104. TiTTtension. To render an agreement to 
 extend the time of payment of a note, or other 
 demand, valid, it must be supported by a good 
 consideration. An agreement to extend an in- 
 terest bearing note, in consideration of any sum 
 beyond lawful interest, is void for usury. Sup. 
 Ct., 1873, Marcellus v. Countryman, 65 Barb. 201. 
 
 105. Failure of consideration. Where a 
 note is given and received in payment for a 
 chattel, the refusal of the vendor to deliver the 
 chattel is not such a failure of consideration as 
 will invalidate the note after it has come back 
 to the maker, since he could at any time after 
 giving it maintain an action to recover the prop- 
 erty. N. Y. Supr. Ct., 1873, Murphy v. Lippe, 
 35 N. Y. Supr. (3 J. & Sp.) 542. 
 
 106. An accommodation indorser may set up 
 as a defense that he indorsed tlie note as secu- 
 rity for a debt due from the maker to the plain- 
 tiff upon the agreement of the latter to disconti- 
 nue a suit brought by him for tlie recovery of 
 the debt ; and that in violation of such agree- 
 ment plaintiff thereafter proceeded to judgment 
 and execution and caused a levy to be made 
 Upon the goods of the maker, thereby destroying 
 his credit, causing his failure and depriving him 
 of the opportunity of eventually paying the note. 
 Ct. App., 1876, Bookstaver v. Jayne, 60 N. Y. (15 
 Sick.) 146. 
 
 107. It is no defense to an action on notes 
 given in consideration of the assignment of a 
 claim against a third party, that the assignor 
 has failed to execute any written instrument of 
 assignment, where that was not made a condi- 
 tion of the arrangement, a verbal assignment 
 being sufficient to transfer the title. Sup. Ct., 
 1875, Daremus r. Williams, 4 Hun, 458. 
 
 108. Fraud. It is a good defense to a promis- 
 sory note given to an insurance company for 
 premiums, and by it transferred to one of its 
 directors as collateral security for advances made 
 by him, that the company was insolvent at the 
 time the note was given and that the plaintiff 
 took with knowledge of that fact. Com. App., 
 1874, Clark v. Metcalf, 54 N. Y., (9 Sick.) 683. 
 
 109. Illegality. A promissory note given to 
 a corporation organized for an Illegal purpose, 
 upon a settlement between the maker and such 
 corporation of dealings growing out of the illegal 
 operations of the corporation, is illegal and void 
 as between the original parties. Sup. Ct, 1862, 
 Burton y. Stewart, 62 Barb. 194. 
 
 7 
 
 110. Where the president of the corporation 
 acted as its agent in making the settlement, and 
 had knowledge of the consideration, and the 
 note was made payable to him, — Held that it was 
 without consideration as between him and the 
 maker. lb. 
 
 111. But such note when transferred to and 
 discounted by a bank, before maturity, and 
 without notice, for value paid, became valid and 
 operative as against all the parties to it. lb. 
 
 112. A new note, given to the bank by the 
 maker, in renewal of and to take up such prior 
 note, would be founded upon a good considera- 
 tion, lb. 
 
 113. If such new note was made payable to 
 the original payee, and by him indorsed, he 
 would be held a mere accommodation indorser, 
 and if compelled to pay it, he could maintain an 
 action against the maker to recover back the 
 amount paid with interest and costs. lb. 
 
 114. Where a husband procures a note to be 
 executed by a tliird party to his wife, for money 
 loaned by himself, tlie right of the wife to re- 
 cover tiiereon is riot affected by an illegal agree- 
 ment entered into by her husband at the same 
 time, but to which she was neither a party nor 
 privy, as part of tlie consideration for which, on 
 Jiis part, he agreed to deliver up the note N. Y. 
 C. P., 1870, Rynders v. Crane, 3 Daly, 339. 
 
 115. Married -woman's note. A bona fide 
 holder before maturity of a note made by a 
 married woman, payable to her own order at a 
 future time, and at a specified place, and in- 
 dorsed by her, can not collect the same, notwith- 
 standing it contains a provision expressly charg- 
 ing the amount upon her separate estate, if it 
 was not for the benefit of her separate estate, 
 nor given in the course of any separate business 
 carried on by her, but was obtained by duress. 
 Ct App., 1874, Loomis v. Ruck, 56 N. Y., (11 
 Sick.) 462. Eev'g S. C, 14 Abb., N S. 385. 
 
 116. Transfer by Insurance Company. 
 Notes taken by an insurance company, under a 
 provision in its charter that it may receive, as 
 additional security to those dealing with it, notes 
 for premiums in advance, under a regulation 
 and agreement that they shall " be deemed the 
 absolute property of the company, and may be 
 used for the payment of losses and liabilities, 
 and for any otlier purpose connected with the 
 business of the company, and when negotiated 
 and in the hands of third persons sliall not be 
 subject to any equitable claim or offset," may 
 be transferred either in absolute payment or as 
 collateral to valid debts of the company, with- ' 
 out rendering them subject to equities to which 
 they might be subject in the hands of the com- 
 pany. Sup. Ct, 1871, Great Western Ins. Co. v. 
 Thayer, 4 Lans, 469 ; S. C, 60 Barb. 633. 
 
 117. Usury. Where a note void for usury is 
 given in renewal of a valid note, the holder may 
 recover the amount which would be due on the 
 valid note, in an action on the substituted one, 
 if usury be setup as a defense thereto. Sup. Ct, 
 1871, Tiffl V. Moor, 59 Barb. 689. 
 
 118. Want of stamp. A bill or note is not 
 invalid in its inception by reason of the omission 
 of the required revenue stamp, unless such 
 stamp was left off with an intention to evade the 
 revenue laws ; and the burden of proving such 
 intent is on the party objecting. Sup. Ct., 1872, 
 Baker v. Baker, 6 Lans. 509. 
 
 2. As against bona fide Holder. 
 
 a. Who is a bona fide holder f 
 
98 
 
 BILLS AND NOTES. 
 
 119. Holder for Security. One who re- 
 ceives commercial paper as security for an ad- 
 vance of money made upon it at the time, with- 
 out notice of any defect of title, will be protected 
 as a bona fide holder ; and he may and is bound 
 to collect it, and apply the proceeds to pay the 
 loan, and account for the balance, if any, to the 
 borrower. N. Y. Supr. Ct., 1875, Moody v. An- 
 drews, 39 N. Y. Supr. (7 J. & Sp.) 302. 
 
 120. A bank which has once made a loan to 
 the payee of a note, upon the deposit of such 
 note as collateral security, and which after the 
 repayment of such loan and return of the note, 
 makes a new loan to such payee on the security 
 of the same note, at the request of one who had 
 meantime become the owner of the note, but 
 who did not otherwise disclose his ownership, 
 can hold it as security for further advances made 
 to the payee on the faith of it, such request not 
 being equivalent to a notice of a change of own- 
 ership. Sup. Ct., 1872, Vooriiees v. National Citi- 
 zens Bank, 15 Abb. N. S. 13. 
 
 121. A bank receiving from one who kept his 
 accounts with it as "agent," and was known by 
 its president to be in failing circumstances, but 
 wlio, as a broker in New York, had been in the 
 habit of procuring notes made and indorsed by 
 others of equal amount to be discounted by it, a 
 note of other parties for $5,000 as security for 
 what he might then owe or thereafter become 
 indebted to it for, and upon the strength of it 
 allowing him to over-draw his account to the 
 amount of $8,000, is a bona fide holder of such 
 note as a security for that amount. Ct. App., 
 1871, Farmers and Citizens National Bank v. 
 Noxon,i5 N. Y., (6 Hand,) 762. 
 
 122. Notice, effect of. One who purchases 
 a note for a valuable consideration and before 
 maturity, but with notice of a prior written con- 
 tract for the sale thereof to a third party, which 
 was sufficient to pass the title, is not a bona fide 
 purchaser, and cannot recover on such note. 
 Sup. Ct., 1875, Sheldon v. Parker, 3 Hun. 498. 
 
 128. The facts that the certification of a check 
 is in a form different from that usually employ- 
 ed by bankers, and purports to be by a subordi- 
 nate officer of the bank whose authority cannot 
 be presumed, and that it is offered for discount 
 before it could have reached the place where so 
 offered in the ordinary course of mail from the 
 place where drawn and certified, are sufficient to 
 put the purchaser on inquiry, and he cannot be 
 deemed a bona fide holder. Ct. App., 1874, Pope 
 . V. Bank of Albion, 57 N. Y. (12 Sick.) 126,Rev'g 
 S. C., 59 barb. 22 i. 
 
 124. Party discounting. One who dis- 
 counts a bill, in good faith and for value, before 
 acceptance, is a bona fide holder, and it is no 
 defense to an action thereon against the acceptor 
 that the acceptance was for the accommodation 
 of the drawer, and that the person discounting 
 it knew that fact. N. Y. Supr. Ct., 1875, First 
 Nat. Bank of Portland V. Schuyler, 89 N. Y. 
 Supr. (7 J. &Sp.) 440. 
 
 125. Where one partner, without the consent 
 of liis co-partners, signed the firm name to a 
 blank draft containing neither amount, date, 
 name of payee, or of drawee, and delivered it to 
 a member of another firm for its accommoda- 
 tion, and the latter took it to a bank, and in the 
 presence of the bank officers filled it out, in- 
 serting his own name as payee and that of his 
 firm as drawee, and then indorsed it to the bank, 
 the officers knowing that he belonged to such 
 firm, and the bank discounted it, — Held, that the 
 bank was a bona fide holder, and was not charge- 
 able with notice that it was accommodation 
 
 paper, nor put upon inquiry as to the authority 
 of the partner to sign the firm name ; and that 
 the firm was liable thereon. Com. App., 1871, 
 Chemung Canal Bank v. Bradner, 44 N, Y. (5 
 Hand,) 680. 
 
 126. A bank which discounts a note before 
 maturity, on application of the payee, paying 
 him part of the proceeds in money and applying 
 the balance in payment of his note held by the 
 bank, which is past due and is then surrendered, 
 is a bona fide holder for value, and is protected 
 against the defense of want of consideration. 
 Ct. App., 1875, Mech's^ Tr. Nat. Bank ofN. Y. 
 V. Crow, 60 N. Y. (15 Sick.) 85. 
 
 127. Party paying value. Only one who 
 parted with something of value in money or 
 property when he became the holder of a nego- 
 tiable promissory note, or incurred some respon- 
 sibility or liability, or parted with some right on 
 the faith of it, will be protected against latent 
 equities existing between the original parties. 
 N. Y. Supr. Ct., 1875, McQuade v. Irvin, 39 N. Y. 
 Supr. (7 J. & Sp.) 396. 
 
 128. The receipt of the note of athird party in 
 payment of an existing antecedent debt, without 
 giving any obligation legally discharging it so 
 that it could not be enforced, would not be a 
 parting with value. lb. 
 
 129. One who surrenders and delivers up to 
 another the promissory notes of the latter, in 
 consideration of new notes endorsed by a third 
 party, is a bona fide holder of such new notes, for 
 value, and can enforce them against the indorser. 
 Com. App., 1872, Clothier v. Adriance, 51 N. Y. 
 (6 Sick.) 322. 
 
 180. One wlio receives a bill of exchange, in 
 part payment of a debt evidenced by promissory 
 notes, past due, and secured by mortgage, and 
 upon such receipt surrenders and cancels the 
 past-due notes, taking new notes for the balance, 
 is a bona fide holder of such bill for value. Ct. 
 App., 1870, Chrysler y. Renois, 43 N. Y. (4 Hand,) 
 209. 
 
 181. A bank which receives certified checks 
 of third parties from one to whom it has 
 previously made a call loan, in the ordinary 
 course of business, credits them on deposit with 
 other moneys received, and out of such deposits 
 satisfies the loan and surrenders up its securities 
 held therefor, without any knowledge or notice 
 of confiicting claims or suspicious circumstances 
 calculated to awaken inquiry, will be protected 
 as a bona fide holder, although the checks were 
 in fact obtained fraudulently. N. Y. Supr. Ct., 
 1873, Justhv. National Bank of the Commonwealth, 
 46 How. 492 ; S. C. 36 N. Y. Supr. (4 J. &'Sp.) 
 273 ; Affirmed S. C. 56 N. Y (11 Sick.) 478. 
 
 132. If a creditor, having a debt due him, re- 
 ceives on account thereof the time note of a 
 third person, payable to and endorsed by the 
 debtor, without any express agreement that such 
 note shall be taken either in -payment and satis- 
 faction or as collateral, he parts with value, 
 because he relinquishes his right to enforce . the 
 payment of his debt presently, and suspends 
 the power to collect it until the note so received 
 shall mature, and he is, therefore, entitled to 
 protection as a bona fide holder. N. Y. Supr. 
 Ct., 1871, Lewis v. Rogers, 34 N. Y. Supr. (2 J. 
 & Sp.) 64. 
 
 133. A landlord who receives from his col- 
 lector of rents a promissory note for a sum 
 slightly exceeding the amount of rent which the 
 latter had collected, allowing him to retain the 
 excess out of a subsequent collection, doing so 
 in good faith and without notice that such note 
 was fraudulently diverted by his agent from the 
 
BILLS AND NOTES. 
 
 99 
 
 purpose for which it was entrusted to him, is 
 entitled to be considered a bona fide holder for 
 value. Sup. Ct., 1870, Mason v. Bichox, 11 Abb. 
 N. S. 127. 
 
 134. A purchaser before maturity, without 
 notice, and for value, of a negotiable note 
 against a partnership which has sold its assets to 
 a creditor upoh the agreement of the latter to 
 pay the debts of the firm, holds it free from ex- 
 isting equities or set ofCs against the firm, in 
 favor of the party who had assumed to pay it. 
 Sup. Ct, 1875, Barlow v. Myers, S Hun, 720. 
 
 185. The assignee, though after maturity, of a 
 hona fide holder of negotiable paper, will succeed 
 to all the rights of his assignor, and will hold 
 free from any equities which do not affect the 
 latter. Com. App., 1873, MiUer y. Talcott, 54 N. 
 Y. (9 Sick.) 114. 
 
 136. Furchciser from agent. Where an 
 agent sells property of his principal as being his 
 own, and takes a note for it in his own name, 
 which he afterward transfers, the holder thereof 
 is entitled to be considered a bona fide holder as 
 against the maker, in the absence of any proof 
 to the contrary, and is not bound to prove his 
 title in the first instance. N. Y. Supr. Ct., 
 1873, Pollard v. Rocke, 36 N. Y. Supr. {4 J. & 
 Sp.) 301. 
 
 137. Holder for collection. A person to 
 whom a draft is delivered by the drawers, with 
 directions to collect and hold the proceeds sub- 
 ject to the order of one of sucli drawers, cannot 
 be held to be a bona fide holder of commercial 
 paper for value paid on the faith thereof, on 
 proof of those facts and without proof of an 
 appropriation of the proceeds to his use by the 
 person for whose benefit he was to hold them. 
 N. Y. Supr. Ct., 1872, Philbrick v. Dallett, 43 
 How. 419; S. C. 34 N. Y. Supr. (2 J. & Sp.) 370. 
 
 138. Neither would he be held a bona fide 
 holder upon proof that he took the draft before 
 acceptance for the prior debt of the party for 
 whose use he wa-s to collect, without parting 
 with any value on the faith of the draft or its 
 acceptance, so as to be protected against the 
 defense of fraud or want of consideration set 
 up by the acceptors. lb. 
 
 139. The cases as to the respective rights and 
 obligations of drawers, acceptors and holders of 
 commercial paper, and what constitutes a per- 
 son a bona fide holder, reviewed. lb. ■ 
 
 140. Taken for precedent debt. One to 
 whom a note is pledged as security for an ante- 
 cedent debt is not a bona fide liolder. Ct. App., 
 1872, Jones v. Schret/ei; 49 N. Y. (4 Sick.) 674. 
 
 141. One who receives in payment of a pre- 
 cedent debt, a note transferred by his assignors 
 in fraud of the rights of the maker, is not a 
 bona fide holder for value, nor will he, by trans- 
 ferring it to bona fide holders, and afterward 
 taking from them an assignment of a judgment 
 obtained by them thereon, acquire the rights of 
 his assignors, but he will hold the judgment as he 
 did the note, subject to the rights of the maker 
 against the note while it was in his hands. 
 Sup. Ct., 1871, Coleman v. Lansing, 4 Lans. 70. 
 
 142. One who receives notes as additional 
 security for a call loan previously made by him, 
 after a call for and non-payment thereof, with- 
 out any definite agreement on his part for fur- 
 ther extension or forbearance on such loan, is 
 not a boria fide holder for value, and will not be 
 protected against any defense existing between 
 the original parties. Ct. App., 1873, Atlantic 
 Nat. Bank of N. Y. v. Franklin, 65 N. Y. (10 
 Sick.) 235 ; Bev'g S. C. 64 Barb. 449. 
 
 143. Such transaction does not amount to a 
 
 new loan upon the new and old collaterals, re- 
 quiring a new call before the lender can sue on 
 the collaterals. lb. 
 
 144. Generally the payee of accommodation 
 notes has an implied authority to pledge them 
 as security for his existing debts ; and it is upon 
 this ground, and not that the creditor becomes a 
 bona fide holder for value, in the ordinary sense 
 of the term, that the maker is, in such cases, 
 precluded from setting up the defense of want 
 of consideration. lb. 
 
 146. One who takes a note upon a precedent 
 debt, not evidenced by any writing, without 
 parting with any security in exchange, is not a 
 bona fide holder thereof. Ct. App., 1873, Turner 
 V. Treadway, 63 N. Y. (8 Sick.) 650. 
 
 146. One who takes from an insurance com- 
 pany the note of a third party held by it, in 
 part payment of a loss sustained by him under 
 one of its policies, will not be protected as a 
 bona fide holder for value. Com. App., 1872, 
 Chesbrough v. Wright, 61 N. Y. (6 Siok.) 662. 
 
 147. Transferred by acceptor. As in the 
 ordinary course of business a bill or draft would 
 come into the hands of the drawee or acceptor 
 only for purposes of acceptance or after payment, 
 in neither of which cases would he have the 
 right to transfer it, a purchase from him cannot 
 assume that his rights are other or different, and 
 cannot claim protection as a bona fide holder. 
 Ct. App., 1872, Central Bank of Brooklyn v. 
 Hammett, 50 N. Y. (5 Sick.) 158. 
 
 148. Without possession. The rule that 
 when one of two innocent persons must suffer 
 from the wrongful or fraudulent act of another, 
 the loss should devolve on him by whose act or 
 omission the wrongdoer has been enabled to 
 perpetrate the fraud, cannot apply to a case 
 where a party notifies another by telegram that 
 he has remitted to him bills of exchan;ge for a 
 certain amount, and the latter procures a loan on 
 the strength of such telegram and of a promise 
 to deliver the bills as security when received ; 
 and the lender cannot claim to be a bona fide 
 holder for value of tlie bills as against the right 
 of the sender to reclaim them before received by 
 the person to whom they were sent, the latter 
 never having been invested with the indicia of 
 title. Ct. App., 1873, Muller v. Pondir, 55 N. Y. 
 (10 Sick.) 325. 
 
 b. When a bona fide holder will be protected, 
 
 149. Consideration paid. The rule that an 
 accommodation draft has no validity till it reaches 
 the hands of a bona fide holder for value, and if 
 the first transfer is tainted with usury, the paper 
 will be void in the hands of any subsequent 
 holder, applies only to one which is wholly 
 without consideration. If there was some con- 
 sideration, a bona fide purchaser may recover on 
 it, no matter what he paid for it. Sup. Ct., 1872, 
 Howe v. Potter, 61 Barb. 356. 
 
 150. One who purcliase negotiable paper to 
 whicli, as between maker and payee, there is a 
 good defense, and pays but part of its value, is 
 entitled to be considered a bona fide purchaser 
 only pro-tanto, and will be protected only to the 
 extent of the value paid by him. Sup. Ct., 1872, 
 Hufv. Wagner, 63 Barb. 216. S. P. Harger v. 
 Wilson, Id.' 237 ; Bailey v. Griswold, 32 N. Y. 
 Supr. (4 J. & Sp.) 68. 
 
 161. Thus, one who purchases a note from the 
 payee, who obtained the same by fraud, and pays 
 therefor in horses not worth more tlian one half 
 the value of tlie note, can only recover on such 
 note the true value of the horses paid for it> lb. 
 
100 
 
 BILLS AND NOTES. 
 
 152. Forged indorsement. If a thief or a. 
 finder of negotiable paper, payable to order and 
 indorsed by the payee, erases such indorsement, 
 and afterward personates the payee and indorses 
 by forging his signature, he cannot thereby 
 transfer title as against the true owner, even to 
 a bona fide purchaser for value. Dwight, C, 
 dissents ; Com. App., 1874, Colsm v. Arnot, 57 
 N. Y. (12 Sick.) 253. 
 
 163. The payee could himself erase his own 
 indorsement and thus render it negotiable only 
 after his signature is again procured ; and an 
 erasure by the owner or by a finder or thief, who 
 is dealt with as owner by the purchaser, produces 
 the same effect. lb. 
 
 154. Fraud. The bona fide holder of a note, 
 which was obtained from the maker by fraud, 
 has no equity as against the party defrauded, 
 beyond the amount of the advances he has made 
 upon, the faith of such note. Sup. Ct., 1872, 
 Harger v. Wilson, 68 Barb. 237. 
 
 155. One who purchases a note, intentionally 
 issued and put in circulation by the maker as a 
 valid one, for a valuable consideration and 
 without notice of any fraud in its inception, may 
 maintain an action thereon as a bona fide holder, 
 although he purchased at a discount greater than 
 the lawful interest. The price paid is evidence 
 upon the question of good faith, but it cannot 
 affect the title of the purchaser. lb. 
 
 156. Negligence, however gross, is not suffi- 
 cient to deprive a party of the character of a 
 bona fide holder, but proof of bad faith is neces- 
 sary for that purpose. Ct. App., 1874, Chapman 
 V. Rose, 47 How. 13 ; S. C, 56 N. Y. (11 Sick.) 
 137 ; Bev'g S. C, 44 How. 364. 
 
 167. Where a party has signed a promissory 
 note, relying upon the representation of another 
 that it was a paper of a different character, 
 knowing that he was incurring an obligation of 
 some sort but not attempting to ascertain its 
 character and extent although he had an opport- 
 unity to do so, he is guilty of laches, and a holder 
 of such note in good faith for value will be pro- 
 tected, lb. 
 
 158. The fact that a negotiable promissory 
 note was procured by fraud, deceit or mistake, 
 the maker not having understood that he was 
 making a note, or intended doing so, constitutes 
 no defense as against a bona fiide holder before 
 maturity, unless the maker also shows that, in 
 signing it he was not guilty of any negligence or 
 laches. Sup. Ct, 1876, Penton v. Robinson, 4 
 Hun, 252. 
 
 159. Where it appears in evidence that the 
 party sought to be charged as the maker of a 
 note, was induced to sign the paper by the 
 fraudulent representation of the payee that it 
 was an order for patent hay forks, of which he 
 had accepted the agency, that he never intended 
 to put his name to any such instrument as a note, 
 but was deceived as to its actual contents, and 
 that lie is not chargeable with any laches or 
 negligence, he will not be held liable thereon, 
 even to a bona fide holder before maturity. Sup. 
 Ct., 1873, Chapman v. Rose, 44 How. 364. Ee- 
 versed because the question of defendant's negli- 
 gence was not submitted to the jury. Ct. App., 
 S. C, 47 How. 13. 
 
 160. Fraudulent diversion. The fraudulent 
 diversion by the drawer of a biltf rom the purpose 
 for which it was intended by the acceptor, is no 
 defense to such bill in the hands of a bona fide 
 holder. Com. App., 1871, First National Bank of 
 Angelica v. Hall, 44 N. Y. (5 Hand,) 396. 
 
 161. Although a note indorsed for the accom- 
 modation of the maker for a particular purpose, 
 
 is diverted from that purpose by a transfer in 
 payment of a precedent debt, a bona fide pur- 
 chaser for value from such transferree can enforce 
 it against the endorser ; and where such trans- 
 ferree is ignorant that the note was misappro- 
 priated, the fact that it was transferred by him 
 to a banking corporation of which he was director 
 does not change the rule or affect the right of 
 the latter to recover. Ct. App., 1873, Merchants 
 National Bank of Syracuse v. Comstock, 55 N. Y. 
 (10 Sick.) 24. 
 
 162. Where the maker of a note delivered it 
 to the payee to be discounted for the benefit of 
 such maker, and the bank to which it was pre- 
 sented refusing to discount it at the time but 
 promising to do so thereafter, it was left with 
 such bank by the payee and he was permitted 
 to draw against it, the bank having no notice of 
 the maker's interest ; — Held, that the bank was 
 entitled to recover from the maker the amounts 
 so drawn, the transaction being in effect a dis- 
 count of the note to that amount; and the result 
 would be the same if it should be considered a 
 simple pledge of the note for that amount. Com. 
 App., 1874, P/attv. Beebe, 57 N. Y. (12 Sick.) 339. 
 
 163. Parties who receive anote before maturity 
 from another who at the time has the lawful 
 custody of it, in part payment of an antecedent 
 debt due them from such person, without notice 
 that it was delivered to him by a third party to 
 get discounted and the money received therefor 
 kept as a loan, are bona fide holders for value, 
 and their title to the note cannot be disturbed 
 by such third party. N. Y. Supr. Ct. 1872, 
 McGuire v. Sinclair, 47 How. 360 ; S. C, 35 N. 
 Y. Supr. (3 J. & Sp.) 561. 
 
 164. A promissory note given in the name of 
 a married woman by her husband, who acts as 
 her agent in conducting business in her name, if 
 diverted from or not used in that business, is 
 void even in the hands of a bona fide holder, who 
 took it on the representation that it arose on a 
 fair business transaction. Sup. Ct., 1873, Bogerty. 
 Gulick, 45 How. 385 ; S. C, 65 Barb. 322. 
 
 166. The statute enables married women to 
 make only such contracts as are connected with 
 the business conducted by them on their own 
 account, or relate to their separate property. lb. 
 
 166. Illegality, &c. The indorser of a pro- 
 missory note, drawn and signed in a firm name, 
 cannot set up as a defense to an action thereon 
 by a bona fide holder for value, without notice, 
 who took it before maturity, that the makers 
 were not partners at the time, having been 
 adjudged bankrupts, and that it was made with- 
 out consideration, in fraud of the bankrupt law. 
 Sup. Ct., 1874, Dalrymple v. Hillenbrand, 2 Hun, 
 488; AffMby Ct.App. 
 
 167. Negotiable paper in the hands of an inno- 
 cent holder, who has received it in good faith 
 and in the ordinary course of business, for value, 
 and without notice of any defense to it, is not 
 invalid by reason of any illegality in the consi- 
 deration, unless it is expressly declared void by 
 statute. Sup. Ct., 1875, Grimes v. Hillenbrand. 
 4 Hun, 354. 
 
 168. Premium Notes. One who loans money 
 to an insurance company, taking as security 
 certain notes executed to the company for pre- 
 miums, is a bona fide holder of such notes for 
 value, and the maker cannot, in an action by 
 him thereon, defend on the ground that the 
 company was insolvent wlien the insurance was 
 effected. N. Y.C. P., Sp. T., 1869, Fourth National 
 Bank v. Snow, 8 Daly 167. 
 
 169. Proceeds of stolen bonds. The fact 
 that the promissory note sued on was given for 
 
BILLS AND NOTES. 
 
 101 
 
 the loan of moneys obtained on a sale of stolen 
 government bonds, may be shown as a defense 
 to an action thereon by an assignee under an 
 answer setting it up, and tlie presumption that 
 the plaintiff is a bona fide holder arising from 
 his possession of the note, will be thereby over- 
 come, and the burden of proof of that fact be 
 cast upon him. Sup. Ct., 1872, Porter v. Knapp, 
 6 Lans. 125. 
 
 170. Stolen coupons. Coupons separated 
 from government or corporation bonds for the 
 payment of money, negotiable by delivery, like 
 the bonds themselves, are in law to be consi- 
 dered as representatives of money, and subject 
 to the same rules as bank bills ; and a bona fide 
 purchaser, in the usual course of business, for 
 full value, without notice, will be protected, 
 even though they were purchased after maturity 
 and from one who stole them. Sup. Ct., 1876, 
 Evertsen v. National Bank of Newport, i Hun, 692. 
 
 171. Unauthorized endorsement. A mere 
 agreement between the owner of a patent right 
 and another, that the latter shall sell rights, at 
 his own cost and expense, and receive one-half 
 the proceeds ; that notes taken therefor shall be 
 payable to the order of both in their joint names, 
 and that the latter may sign their joint names, 
 when necessary, in transacting the business and 
 for the purpose of converting such notes into 
 cash, does not authorize the latter party to 
 indorse in their joint names a note not taken in 
 such business ; and, where the parties have not 
 held themselves out as partners, the former 
 party will not be liable on such indorsement to 
 one who purchased the note in good faith, for 
 value, and before maturity, and who did not 
 know the agreement between such parties. Sup. 
 Ct., 1875, Botckkiss V. English, 4 Hun, 369. 
 
 8. Indorsers, how discharged. 
 
 172. Delay in presenting. Where a draft 
 is received in payment for goods sold, a loss 
 occurring through delay in presenting it for 
 payment will fall upon the holder and the in- 
 dorser will be discharged, unless the delay was 
 with his consent. Ct. App., 1871, Darnall v. 
 Morehouse, 45 N. Y. (6 Hand,) 64 ; Eev'g S. C, 
 36 How. 611. 
 
 173. A statement by the vendor of cattle to 
 the vendee, on a sale in this State, made at the 
 time of delivery, that he lived in Indiana, wish- 
 ed to take the next train and had just about 
 time to reach it, whereupon the vendee directed 
 a bank clerk to "fix him out," and at the 
 request of the vendor indorsed and delivered 
 over to him the drafts drawn pursuant to such 
 direction, furnishes no evidence of such indor- 
 ser's consent that the drafts should first be taken 
 to Indiana and then forwarded to New York for 
 payment, but such delay will discharge him. lb. 
 
 174. A delay of one day in presenting a check 
 received from the drawees of a draft, in ex- 
 change therefor, but not expressly as payment, 
 though not sufficient to discharge the drawer of 
 the check, will, as between the payee and 
 drawer of the bill, relieve the latter from liabil- 
 ity. Ct. App., 1870, Smith v. Miller, 43 N. Y. 
 (4 Hand,) 171 ; Eev'g S. C, 6 Bob. 157, and 6 
 Abb. N. S. 234. 
 
 176. Non presentment. A promise by an 
 indorser to pay the note indorsed by him, made 
 after it has become due, is not binding upon 
 him as a waiver of the failure to make due pre- 
 sentment, unless he had full knowledge of such 
 failure. Sup. Ct., 1873, Smter t. Hook, 64 
 Barb. 468. 
 
 176. But an application far time with a pro- 
 mise of future payment, made by the indorser 
 before the maturity of the note, with full knowl- 
 edge that the maker was dead, and had left no 
 property, nor any person on whom demand of 
 payment could be made, is a waiver of present- 
 ment, and binds such indorser. lb. 
 
 177. Giving time to maker. A valid ex- 
 tension of the time of payment of a note, given 
 by the holder to the maker, without the con- 
 sent of an indorser thereon for the accommoda- 
 tion of the latter, will discharge such indorser. 
 Ct. App., 1872, Scovillev. Landon, 50 N. Y. (5 
 Sick.) 686. 
 
 178. An agreement between the maker of a 
 note, indorsed by a third party, and the holder 
 thereof, made after the maturity of the note, 
 whereby the former transfers to the latter a 
 bond and mortgage for a larger amount, hav- 
 ing six months to run, from the proceeds of 
 which the assignee is to retain the amount of 
 such note, the sum advanced by him with in- 
 terest, and a further sum ; a deduction to be 
 made for payment of the note and advancement 
 before maturity of the mortgage ; operates to 
 extend the time of payment of the note until 
 the maturity of the mortgage, and discharges 
 the indorser. Sup. Ct., 1875, Beard v. Root, 4 
 Hun, 356. 
 
 179. A holder of an over-due note, who takes 
 from the maker, as collateral thereto, a new 
 note, payable at a future day, thereby suspends 
 his right of action upon the old note until the 
 maturity of the new one, whether there is any 
 express agreement for an extension of credit or 
 not, and an indorser of such prior note who does 
 not consent to the extension is discharged. N. 
 Y. C. P., 1871, Eisner v. Keller, 3 Daly, 485. 
 
 180. It seems, that in case of an express 
 agreement that the new note should not affect 
 the security already held by the creditor, taking 
 it would not operate to discharge the indorser 
 or suspend the right of action on the old no^e. 
 lb. 
 
 181. An agreement by a bank, the holder of a 
 note, to carry the same, does not import an ex- 
 tension of time thereon ; but all that is meant 
 is, that it will from time to time, according to 
 the mode of discounting paper, discount a like 
 note which it will receive in place of the one 
 held, if presented when the latter becomes due, 
 and the discount upon it paid. If the note is 
 not thus renewed it becomes payable according 
 to its terms ; such an agreement, therefore, does 
 not discharge an indorser. Ct. App., 1874, Sec- 
 ond National Bank of Oswego v. Poucher, 56 N. 
 Y. (11 Sick.) 348. 
 
 182. Indorsement erased. A purchaser of 
 bank stock which, by the by-laws of the bank. 
 is subject to lien for any liability from the stock- 
 holder, who, as a condition of having it trans- 
 ferred to him upon the books, pays a note held 
 by the bank against his vendor, and indorsed by 
 its own president, and receives it with the in- 
 dorsement erased, thereby assents to the dis- 
 charge of the indorser and can maintain no ac- 
 tion against him thereon. Com. App., 1872, 
 Pettibone v. Blackmar, 48 N. Y. (3 Sick.) 689. 
 
 183. Limitation of liability. To relieve one 
 who indorses paper from liability on the indorse- 
 ment, he must insert in the contract itself words 
 clearly expressing such an intention. Ct. App., 
 1874, Fassin v. Hubbard, 65 N. Y. (10 Sick.) 
 466. 
 
 184. The addition, by one partner, after dis- 
 solution, who at the time was a member of a 
 new firm of the same name, of the words, " old 
 
102 BILL OF PARTICULARS— BONA FIDE PURCHASERS. 
 
 firm in liquidation," to an indorsement in such 
 firm name, — Held, not sufficient to relieve him 
 from liability thereon. lb. 
 
 185. Payment diverted. An indorser upon 
 a promissory note is not discharged by the fact 
 that the maker was ready and willing to pay 
 at maturity, and would so have paid, had he not 
 been persuaded by the holder to apply the 
 amount upon another demand against him, held 
 by tlie latter. Ct. App., 1874, Second National 
 Bank of Oswego V. Poucher, 56 N. Y. (11 Sick.) .348. 
 
 186. Proving in bankruptcy. The fact 
 that a note signed by an accommodation in- 
 dorser, who holds mortgages upon the maker's 
 real estate as security for his indorsement, is 
 proved against such maker in bankruptcy, al- 
 though it prevents the holder from claiming any 
 riglit or equity in such securities, does not dis- 
 cliarge the lien of the indorser or impair his 
 rights, and consequently he is not released from 
 liability thereby. Ct. App., 1873, Merchants' 
 National Bank of Syracuse v. Comstock, 55 N. T. 
 (10 Sick.) 24. 
 
 187. Subrogation prevented. One who 
 indorses for the accommodation of another a 
 note given as collateral to a judgment against 
 the latter, is entitled, in the event of paying the 
 note, to be subrogated to all the riglits of the 
 judgment creditor, including those respecting 
 the original judgment; and a holder of the note 
 who causes such judgment to be satisfied,thereby 
 releases the indorser. N. Y. C. P., 1870, Boyd v. 
 Finnegan, 3 Daly, 222. 
 
 188. Want of notice. Although the drawer 
 of a non-negotiable bill of exchange is not 
 strictly entitled to notice of demand and non- 
 payment, yet, if tlie holder is guilty of positive 
 laclies to his detriment, he will be discharged to 
 the amount of the loss so occasioned. Accord- 
 ingly, where, by reason of want of such notice, 
 tlie drawer, supposing the bill to have been paid, 
 failed to include the amount in a mechanics' 
 lien, which was his only security for the claim 
 on which it was founded, and by reason thereof 
 the amount was not only unsecured but lost, — 
 Held, that he was discliarged. Ct. App., 1873, 
 Newman v. Frost, 52 N. Y. (7 Sick.) 422. 
 
 V. Actions on bills and notes. 
 
 189. Lost note. In an action on a lost note, 
 it is not necessary to give a bond of indemnity 
 unless the note was negotiable, and in the ab- 
 sence of proof its negotiability will not be pre- 
 sumed, especially where there is some evidence 
 tending to show that the maker had wrongfully 
 obtained possession of it, and had either de- 
 stroyed it or still had it in his possession. Com. 
 App., 1873, Wright v. Wright, 54 N. Y. (9 Sick.) 
 437. 
 
 190. Note held adversely. A party who 
 claims to be the owner of a promissory note, 
 wliich is at the time in the possession of another 
 claiming title thereto, cannot maintain an action 
 thereon ; tlie maker being entitled to have it 
 delivered up and cancelled upon paying it. The 
 title to the note could not be settled in such 
 suit. Sup. Ct., 1874, Crandall v. Schroeppel, 1 
 Hun, 557. 
 
 191. Damages. One to whom a promissory 
 note has been indorsed as security for a debt, in 
 an action thereon ; after such debt has been re- 
 paid by his indorser, can recover only the 
 difference between what he has paid out on 
 account of the note and what he received from 
 his indorser. Sup. Ct., 1875, Oberley v. Dickin- 
 son, 4 Hun, 659. 
 
 BILL OF PARTICULARS. 
 See Pleading ; Pkacticb. 
 
 BILL OP SALE. 
 See Chattel Moktgage ; Sale. 
 
 BOATS. 
 See Ships and Seamen. 
 
 BONA FIDE HOLDER. 
 See Bills and Notes. 
 
 BONA FIDE PURCHASER. 
 
 1. 'Who is. In order to constitute one a 
 bona fide purchaser, he must buy without notice 
 of the rights or interests of third parties, for a 
 full and fair price, and such price must be 
 actually paid. Sup. Ct., 1868, Spicer v. Waters, 
 65 Barb. 227. 
 
 2. If the title of the immediate vendee is void, 
 as against the creditors of his vendor, by reason 
 of fraud, that defect will attach to the title of 
 every subsequent purchaser who is not a bona 
 fide purchaser without notice ; and such credi- 
 tors may therefore attack the title of one wlio 
 purchases on a credit. lb. 
 
 8. Notice to put upon inquiry. The 
 right of a purchaser, for value advanced, of 
 negotiable paper, including bonds, as a bona fide 
 holder, cannot be defeated by notice of such 
 facts merely as would put a prudent man upon 
 inquiry. Ct. App., 1871, Welch v. Sage, 47 N. Y. 
 (2 Sick.) 143. 
 
 4. The absence, at the time of the purchase 
 of stolen bonds, of certificates of scrip preferred 
 stock, entitling the holder to exchange the same, 
 on surrender of the bonds, for full-paid stock, 
 which were attached to the bonds at the time of 
 issue and were referred to in the body thereof, 
 though a circumstance sufficient to provoke 
 inquiry, will not prevent the purchaser from 
 recovering as a bona fide holder. lb. 
 
 5. A purchaser of goods, shipped by railroad 
 and stored with a warehouseman, from a person 
 who did not hold the bills of lading, and witliout 
 inquiry after such bills, cannot claim as a bona 
 fide purchaser. Com. App., 1870, City Bank v. 
 Rome, Watertown, and Ogdensburg R. R. Co., 44 
 N. Y. (6 Hand,) 136. 
 
 6. One who takes a transfer of a bill of sale 
 of property which still remains in the hands of 
 the vendor, with a stipulation that the property 
 shall so remain for sixty days longer, has suffi- 
 cient notice to put him upon inquiry as to the 
 validity of his title, and will not be protected as 
 an innocent holder. Sup. Ct., 1874, Goodenough 
 V. Spencer, 46 How. 847 ; S. C, 15 Abb. N. S. 248. 
 
 7. A married woman, and one to whom chat- 
 tels are conveyed in trust for her by an instru- 
 ment in writing, which contains a covenant on 
 the part of the grantor to pay all existing incum- 
 brances against the same within a certain time, 
 and a reservation in favor of the cestui que trust 
 of a right to dispute the validity as against 
 
BONA FiDE PURCHASER. 
 
 103 
 
 herself of such incumbrances, are chargeable 
 with notice of any liens which inquiry would 
 have disclosed, and cannot claim as bma fide 
 purchasers against an existing mortgage not 
 then on file, though they had no actual notice 
 of it. Ct. App., 1872, Reed v. Gannon, 60 N. Y. 
 (6 Sick.) 345 ; Eev'g S. C, 3 Daly, 414. 
 
 8. -^ constructive. A purchaser of lands is 
 required to exercise only ordinary care and 
 diligence ; and where a conveyance, by its 
 terms, is made subject to a mortgage specified, 
 a purchaser from the grantee is not charged 
 with constructive notice of another mortgage 
 forming an equitable incumbrance thereon, dif- 
 ferent in its terms from the one mentioned, and 
 which is not by its terms and nowhere appears 
 of record as a lien upon the premises, simply by 
 the fact that the mortgage described appears to 
 have been discharged of record a few days 
 before the date of the conveyance. Com. App., 
 1872, Cambridge Valley Bank T. Delano, 48 N. Y. 
 (3 Sick.) 326. 
 
 9. Where a deed contained a recital that it 
 was made in pursuance of a contract of sale 
 with another party, of whom the grantee was 
 assignee, and as such entitled to fulfilment 
 thereof by the conveyance, — Held, that such 
 recital was not constructive notice of any exist- 
 ing equities under the contract, and that a party 
 purchasing from such grantee without other 
 notice of such equities and without examination 
 of the contract, was a bona fide purchaser. Ct. 
 App., 1871, Acer v Westcutt, 46 N. Y. (1 Sick.) 
 384 ; Rev'g S. C, 1 Lans. 93. 
 
 10. A bona fide purchaser of a mortgage is not 
 chargeable with notice of .the rights and equities 
 of persons holding contracts of sale for portions 
 of the premises prior in date to his mortgage, 
 even though his assignor was chargeable with 
 such notice, unless they have gone into the 
 actual, open, visible occupancy of the portions 
 
 ?urchased by them. Sup. Ct., 1871, Trustees of 
 Tnion College v. Wheeler, 5 Lans. 160 ; S. C. 59 
 Barb. 585. 
 
 11. Where a trustee of a railroad mortgage 
 for the benefit of bondholders, pledges to firms 
 of which he is a member property which is cov- 
 ered by such mortgage, such firms are charge- 
 able with his knowledge of the facts, and they 
 will not be treated as bona fide purchasers as 
 against the bondholders. Sup. Ct., 1875, Weetjen 
 V. St. Paul and Pacific R. R. Co., 4 Hun, 
 529. 
 
 12. A note, alleged to have been fraudulently 
 transferred by a debtor to his wife, having been, 
 pending a suit by her husband's receiver against 
 both to reach the same, transferred by her to 
 her attorney in the action, — Held, that such 
 attorney was bound by a judgment in the suit 
 directing that the note be delivered up, and could 
 not be protected as a bona fide purchaser. Com. 
 App., 1872, Jeffres v. Cochrane, 48 N. Y. (3 Sick.) 
 671. 
 
 13. — actual. Although a purchaser in 
 good faith, from one who has been voluntarily 
 invested by the owner with the evidence of ow- 
 nership and the apparent right to dispose of 
 personal property, will be protected, yet, if the 
 party dealing with the apparent owner has actual 
 notice of the rights of the true owner, he ac- 
 quires no better title than the transferer or ap- 
 parent owner can lawfully convey. Ct. App., 
 1875, Porter \. Parks, 49 N. Y. (4 Sick.) 564. 
 
 14. One who buys personal property from the 
 person in possession, in payment of a prior in- 
 debtedness due himself from the seller, and 
 knowing that the latter is not the owner thereof, 
 
 is not a bona fide purchaser, and cannot assert an 
 estoppel against the true owner, for permitting 
 the sale without claiming the property, or object- 
 ing to its delivery. Sup. Ct., 1864, Penfield v. 
 Dunbar, 64 Barb. 239. 
 
 15. Advances made. One who makes ad- 
 vances upon the securitj' of a warehouse re- 
 ceipt for property, without notice of any fact 
 calculated to awaken suspicion that the property 
 was not all in store at the time it was issued, is 
 entitled to be protected to the extent of the pro- 
 perty actually in store at the time the advances 
 were made, as against a party claiming that the 
 same was procured from him by fraud of the 
 person to whom the receipt was issued. Sup. 
 Ct., 1874, McCombie v. Spader. 1 Hun, 193. 
 
 16. Of Certificate. A bank which in good 
 faith and for value purchases a State cer- 
 tificate of indebtedness, from one who had an 
 absolute assignment thereof from the original 
 payee, without knowledge that such assignment 
 had been procured by fraudulent representations 
 of the assignee as to his solvency, or that any 
 secret understanding existed between them that 
 such transfer should be merely conditional, will 
 be protected as a iona^rfc purchaser. Sup. Ct., 
 
 1872, Moore v. Miller, 6 Lans, 396. 
 
 17. Of Chattel Mortgage. A bona fide 
 purchaser, before maturity, of a note which is 
 secured by a chattel mortgage, takes the mort- 
 gage, as he takes the note, free from equities to 
 which it might have been subject in the hands 
 of the mortgagee. Sup. Ct., 1874, Gould v. 
 Marsh, 1 Hun, 566. 
 
 18. Of corporate property. Creditors of 
 a corporation who combine in a scheme for 
 the purchase of the property of the corporation 
 and the formation of a new company among 
 themselves, without collusion with the stock- 
 holders or unfair or fraudulent intent, are bona 
 fide purchasers, and will take the property unin- 
 cumbered of any trust in favor of the other 
 creditors not joining in the agreement, and sub- 
 ject only to the terms of the agreement among 
 themselves. Ct. App., 1872, Vose v. Cowdeni, 
 49N. Y. (4 Sick.) 336. 
 
 19. A judgment creditor does not become 
 a bona fide purchaser, by buying goods, at a sale 
 on his execution which were fraudulently pur- 
 chased by the defendant. Ct. App., 1873, Devoe 
 V. Brandt, 53 N. Y. (8"Sick.) 462 ; Eev'g S. C, 
 58 Barb. 493. 
 
 20. For pre-existing debt. A mortgagee 
 who takes his mortgage as collateral secur- 
 ity for a pre-existing debt, without any agree- 
 ment to extend the time of payment of the debt, 
 or the surrender of any security or parting 
 with any value, is not a bona fide purchaser for 
 a valuable consideration, within the meaning of 
 the recording acts, and his mortgage will not 
 prevail as against a prior unrecorded deed of the 
 premises given by the mortgagor. Ct. App., 
 
 1873, Cary v. White, 52 N. Y. (7 Sick.) 138; 
 Bev'g S. C., 7 Lans. 1. 
 
 21. One who takes a mortgage upon chattels 
 to secure an existing indebtedness then due, and 
 in consideration thereof extends the time of pay- 
 ment, without notice of any prior equitable lien, 
 is a bona fide holder for value and entitled to pro- 
 tection against such hen. N. Y. Supr. Ct., 1875, 
 Hale V. Omaha National Bank, 39 N. Y. Supr. 
 (7J. &Sp.)207. 
 
 22. A person to whom property is transferred 
 by a judgment debtor in payment of a pre-exis- 
 ting debt, is not protected as a bona fide _ pur- 
 chaser, against an execution issued on the judg- 
 ment before the sale, though not levied until 
 
104 
 
 BONA FIDE PURCHASER. 
 
 afterward. N. Y. Supr. Ct., 1872, Chapman v. 
 O'Brien, 34 N. Y. Supr. (2 J. & Sp.) 524. 
 
 23. From bailee. One having possession of 
 a yoke of oxen as bailee for hire, but also with 
 an executory conditional agreement for their 
 purchase, can confer no title, as against the 
 bailor, even upon a purchaser in good faitli and 
 for value, without knowledge or notice of the 
 want of title in liis vendor. Ct. App., 1871, 
 Austin V. Vye, 46 N. Y. (1 Sick.) 500. 
 
 24. From fraudulent purchaser. One 
 who purchases property from the person in pos- 
 session, without notice that the latter obtained 
 the delivery thereof to himself by fraud under 
 color of a sale, and who pays therefor by sur- 
 render of his vendor's note, given for money 
 loaned, and equal in amount to the value of the 
 property, is a bona fide purchaser, and acquires 
 a good title as against the original seller. Com. 
 App., 1871, Paddon v. Taylor, 10 Abb. N. S., 
 370 ; S. C, 44 N. Y. (5 Hand.) 371. 
 
 25. From fraudulent holder. One who 
 purchases property from another who had 
 obtained it by means of a gross cheat under 
 color of a bet, obtains no better title than his 
 vendor had, and cannot be protected as a bona 
 fide purchaser. Sup. Ct, 1874, Hodge v. Sexton, 
 IHun 576. 
 
 26. From holder of 'warehouse receipt. 
 Where the purchaser of a cargo of corn stored 
 it in a warehouse, taking a warehouse receipt, 
 which he immediately pledged as security for a 
 loan, such purchaser being insolvent at the time 
 and not having paid for the corn, in an action by 
 the sellers to recover possession thereof after it 
 had been sold by the pledgees ; — Held, that in 
 the absence of notice to the warehousemen of 
 the rights of the seller, they were not bound to 
 protect them, — that the purchaser's possession 
 of the receipt was equivalent to possession of 
 the corn, and the pledgees, having made 
 advances on it in good faith, were entitled to be 
 protected. Sup. Ct., 1878, Hoyt v. Baker, 15 
 Abb. N. S.,405. 
 
 27. One who advances money upon the deliv- 
 ery to him of a warehouse receipt, stands in the 
 position of a bona fide purchaser for value of the 
 property therein described ; but one who 
 advances money upon the delivery of a mere 
 order for such receipt, under an executory 
 arrangement of which the delivery of the receipt 
 was to be the consummation, does not stand in 
 that position, although he made such advances 
 in good faith. Sup. Ct., 1875, Vom-hees v. Olm- 
 stedd, B Hun, 744. 
 
 28. Of land contract. One who takes an 
 assignment of a contract for the conveyance of 
 land from the purchaser, and in consideration 
 thereof assumes to pay certain notes of the 
 latter which had previously been indorsed by 
 himself, is a bona fide purchaser for value ; such 
 agreement to pay the notes being a parting with 
 value. Sup. Ct, 1863, Reeves v. Kimball, 63 
 Barb. 120. 
 
 29. But such assignee stands in the exact po- 
 sition of his assignor ; and if the latter has 
 received advances from the vendor, subsequent 
 to the date of his contract, under an agreement 
 that he shall retain the title until they are repaid, 
 the equities of the vendor being oldest in titne 
 are superior to those of such assignee, even 
 though the latter took the assignment without 
 notice thereof. lb. 
 
 30. Of municipal bonds. A purchaser in 
 good faith, for full value, of a coiinty bond 
 made payable to a certain person or bearer, 
 without notice or knowledge of any infirmity in 
 
 the title, possesses a perfect title thereto by 
 delivery. Sup. Ct. Cir., 1872, Lindsley v. Die/en- 
 dorf, 43 How. 357. 
 
 81. An action and an injunction order restrain- 
 ing the party in possession of such bond from 
 negotiating or disposing of it, is not notice to a 
 subsequent bona fide purchaser for value, in the 
 nature of lis pendens at common law, since such 
 notice does not apply to commercial paper, the 
 title to which passes from hand to hand by 
 delivery. lb. 
 
 82. One who purchases municipal bonds, made 
 
 payable to " his executors, administrators 
 
 or assigns," in open market, for full value, and 
 in the usual course of business, without notice 
 or suspicion that they had been recently stolen, 
 is a bona fide holder, and will be protected as 
 such. Sup. Ct, 1874, Dutchess Co'. Mut. Ins. 
 Co. V. Hachfield, 47 How. 830; S. C, 1 Hun, 
 675. 
 
 33. A purchaser under such circumstances is 
 not bound to make a close or critical examina- 
 tion in order to avoid the imputation of a pur- 
 chase in bad faith. lb. 
 
 34. A bona fide purchaser for value of town 
 bonds, payable to bearer, which appear on their 
 face to be issued in pursuance of the express 
 authority of the legislature, can maintain an 
 action thereon against the town, and they are 
 not open to any defense in respect to their valid- 
 ity as against him. Sup. Ct., 1874, Marsh v. 
 Toum ^Little Valley, 1 Hun, 554. 
 
 85. Where a town, having power to issue 
 bonds, has issued them with coupons attached, 
 an innocent purchaser for value of such bonds 
 or coupons need not go behind them to enquire 
 wliether all the conditions precedent to the legal 
 issuing thereof have been complied with, but he 
 can enforce them, notwithstanding a non-com- 
 pliance with such conditions. U. S. Cir. Ct, 
 1872, In matter of town of Bloomington, 42 How., 
 283. 
 
 36. Of bank stock. Where one who would 
 be entitled to certain bank stock on the death of 
 her mother, executed an assignment thereof to 
 her sons, reserving to herself the right to collect 
 the dividends thereon during her natural life, 
 but not in any way to diminish the principal ; 
 and, on the death of her mother, such stock was 
 transferred to her, and after holding it for some 
 years and collecting the dividends, she sold it to 
 a purchaser, who bought in good faith, ignorant 
 of the previous transfer, and paid par value for 
 it ; — Held, that he was a bona fide purchaser, and 
 his equity was superior to that of the sons who 
 set up a claim thereto on the death of their 
 mother. Sup. Ct., 1875, Cravyford v. Dox, 5 Hun, 
 507. 
 
 37. But one who was adopted as a daughter 
 by the mother, and received from her as a gift 
 a house and other property purchased with the 
 proceeds of the stock so sold, was not a bona fide 
 purchaser for value, but her equity was inferior 
 to that of the sons, and they could compel her to 
 relinquish such property to them or pay them 
 the amount of such proceeds invested therein, 
 lb. 
 
 88. Of stock of manufacturing corpo- 
 ration. One who, in good faith and for a valu- 
 able consideration, purchases shares of stock in 
 a manufacturing corporation, from the holder of 
 certificates issued by the company stating in 
 effect that such holder is the owner of the num- 
 ber of shares therein Specified, and that the 
 same are transferable on the books of the com- 
 pany to the person entitled thereto, on surrender 
 of the certiaoates, no other condition being 
 
BONDS. 
 
 105 
 
 annexed, will be protected against any lien 
 claimed by the company for the indebtedness of 
 the holder, under a by-law of which such pur- 
 chaser had no notice. Ct. App,, 1874, ZJj-t'scoW V. 
 West Bradley Sj- Gary Manuf. Co., 59 N. Y. (14 
 Sick.) 96 ; AfE'g S! C, 36 N. Y. Supr. (4 J. & 
 Sp.) 488. 
 
 89. Of stocks. A purchaser from a married 
 woman, of stocks standing in her name, is not 
 bound to inquire how she obtained them, nor is 
 he charged with notice of" a trust affecting her 
 title, by the mere fact of coverture; but, unless 
 his title be otherwise affected he will be pro- 
 tected as a bona fide purchaser. Cora. App., 
 1872, Leitch v. WeUs, 48 N. Y. (3 Sick.) 585; 
 Eev'g S. C, 48 Barb. 637. 
 
 40. The commencement of an action by ser- 
 vice of summons does not create a lis pendens, 
 affecting the title of purchasers in good faith 
 thereafter, not parties, of personal property, the 
 subject of litigation, but to affect that, the filing 
 of a complaint is necessary. lb. 
 
 41. It seems that the doctrine of constructive 
 notice by lis pendens is not applicable to stocks 
 and other property, the subject of ordinary 
 commerce. Pek Eakl, C. lb. 
 
 42. An executor is authorized to sell stocks 
 belonging to the estate, and one who buys of him 
 in good faith, and pays in money the price 
 agreed upon, or who loans money upon the 
 security of the property, is not responsible for 
 the application of tlie purchase money, but will 
 acquire a good title as against all the world. lb. 
 
 48. A purchaser of stocks, who takes them 
 partly in satisfaction of a precedent debt, and 
 partly in exchange for value paid at the time, 
 is hot entitled to protection as a bona fide holder 
 to the amount of such precedent debt, but has 
 simply a lien to the extent of the value so paid. 
 Grovek, J., dissents. Ct. App., 1872, l^eauer v. 
 Barden, 49 N.Y. (4 Sick.) 286 ; Eev'g S. C, 8 
 Laos, 338. 
 
 44. Prom trustee. The record of an assign- 
 ment of property in trust, does not charge with 
 notice of the trust a purchaser from the trustee 
 of a mortgage, taken by him in his individual 
 name upon an investment of trust funds ; but 
 such purchaser, if without actual knowledge of 
 the trust, will be protected against any equities 
 of the cestui que trust. Com. App., 1872, Ditlaye 
 V. Com. Bank of Whitehall, 51 N. Y. (6 Sick.) 345. 
 
 46. Prom ■wrong doer. < A bona fide pur- 
 chaser for value of a chose in action, from one 
 who procured it from the owner by undue in- 
 fluence, compulsion and coercion, obtains no 
 valid title thereto. Ct. App., 1875, Barry v. 
 Equitable Life Assurance Co., 59 N. Y. (14 Sick.) 
 687 ; Afl'g 14 Abb. N. S., 386 n. 
 
 46. Stock brokers purchasing stocks, pursuant 
 to telegrams from a customer which promise the 
 requisite " margins," who, after the purchase 
 but before payment for the stock, receive from 
 the latter government bonds stolen by him and 
 forwarded to make up such " margins," will not 
 be protected as bona fide holders, though, after 
 the receipt, they make payments on the stock ; 
 yet, if they subsequently make other purchases 
 upon the credit of the bonds so received, they 
 are entitled to hold them as security for any loss 
 arising in the new transactions. A sale beyond 
 the amount necessary for such indemnity will be 
 a conversion, for which they will be liable to the 
 owner. Ct. App., 1872, Tafiy. Chapman, 50 N. 
 Y. (6 Sick.) 445. 
 
 47. Where a 7.30 treasury note of the United 
 States, with the name of the payee blank, was 
 indorsed by the holder to the Secretary of the 
 
 Treasury for conversion into bonds, and delivered 
 to an express company to be forwarded, but was 
 afterward stolen, the endorsement erased and the 
 note passed to a purchaser in good faith for 
 value, — Held, that the negotiability of the note 
 was destroyed by the indorsement, and the pur- 
 chaser could not claim as a bona fide holder. 
 Com. App., 1874, Dinsmore v. Duncan, 57 N. Y. 
 (12 Sick.) 573 ; Eev'g S. C, 4 Daly, 199. 
 
 BONDS. 
 
 1. Official. Where two of three sureties 
 named in the body of a bond, conditioned for the 
 payment over by the principal of money to be 
 collected by him as deputy collector, executed 
 the same with the expectation and upon the 
 assurance of their said principal that it was to be 
 executed by the third, and then delivered it to 
 such principal, by whom, after erasure of the 
 name of the third surety witliout the consent of 
 the first two it was presented to the obligee the 
 collector, who, ignorant of these facts, thereupon 
 appointed such principal his deputy, — Seld, that 
 the bond was valid and binding upon the sureties 
 who signed. Ct. App., 1874, Russell v. Freer, 
 56 N. Y. (H Sick.) 67. 
 
 2. The names of the obligors having been 
 written in the body of the bond by the justice 
 who administered the oath to the justification, 
 — Held, that the erasure of the name of one who 
 did not execute was not sufficient to excite sus- 
 picion of wrong, or, put the obligee upon inquiry 
 lb. 
 
 3. Municipal. A bond payable to a person 
 named, " or to his certain attorney, executors, 
 administrators or assigns," is not a specialty, 
 but is in the nature of commercial paper, negotia- 
 ble by delivery, under an assignment in blank. 
 Sup. Ct., 1871, Blake v. Supervisors of Livingston 
 Co., 61 Barb. 149. 
 
 4. Such a bond issued by a coiinty, under a 
 resolution of its board of supervisors, to pay a 
 bounty to a soldier who enlisted and was mus- 
 tered into the military service of the United 
 States, to the credit of a town in such county, 
 and delivered to such soldier, and was afterward 
 transferred by him by a brief written assign- 
 ment on the back, — Held, to have had a valid 
 inception, and to be a valid and binding obliga- 
 tion against the county, in the hands of the 
 payee, and his assignee. lb. 
 
 5. The fact that such soldier was, soon after 
 his enlistment, discharged from the service on 
 application of his father, upon the ground that 
 he was under age, did not affect the considera- 
 tion of the bond, if the government did not with- 
 draw the credit given to the town on its quota, 
 but elected to take and retain the bounty, 
 received by him, in consideration of the dis- 
 charge, lb. 
 
 6. Such bond is good as against the county 
 in the hands of a purchaser, for a valuable con- 
 sideration, from the apparent owner, notwith- 
 standing the fact that the payee was an infant 
 at the time he transferred it ; as no one but the 
 payee himself could take advantage of his 
 infancy. lb. 
 
 7. A county bond issued payable to a certain 
 person or bearer possesses all the elements of 
 commercial paper, and is subject to all the rules 
 which pertain to such paper, and purchasers and 
 holders thereof are entitled to all the rights 
 which attach to negotiable instruments. Sup. 
 Ct., 1872, Lindsley r. Diefendorf, 43 How. 357. 
 
106 
 
 BONDS. 
 
 8. A municipal bond, payable " to the said 
 - his executors, administrators or assigns," 
 
 &c., the place for tlie name of the payee being 
 left blank, is negotiable under the mercantile 
 law as settled in tliis State ; and a purchaser 
 thereof in open market, in good faith and for 
 full value, will be protected, even though tlie 
 bonds were stolen. Sup. Ct., 1874, Z)u<cAcss Co. 
 Mut. Ins. Co. V. Hachfield, 47 How. 330 ; S. C, 
 1 Hun, 675. 
 
 9. A town has no authority under section 3, 
 chapter 8, Laws of 1864, to issue bonds, except 
 for debts incurred for bounties previous to the 
 passage of the act. Ct. App., 1872, Cooky v. 
 Town of Guilford, 47 N. Y. (2 Sick.) 673. 
 
 10. Where the right of a town to issue bonds 
 in aid of a railroad is, by special statute, made 
 to depend upon an affidavit of a majority of the 
 assessors to the effect that a majority of tlie 
 tax payers have consented, tax payers who 
 have once consented have a right, at any time 
 before the affidavit is made, to revoke such con- 
 sent; and when notice of such revocation is 
 served upon the assessors, the names and pro- 
 perty of those revoking must be excluded by 
 them from the list of consentors. Ct. App., 1873, 
 People ex rel. Yawger v. Allen, 52 N. Y. (7 Sick.) 
 638. 
 
 11. A town which, having power to issue 
 bonds, has issued them with coupons attached, 
 is liable tliereon to an innocent purchaser for 
 value, even though the conditions precedent to 
 the legal issuing thereof have not been com- 
 plied with. U. S. Cir. Ct. In matter of the 
 Town of Bloomington, 42 How. 283. 
 
 12. The law presumes that the agents of a 
 public corporation will act in conformity with 
 the law, and such corporation must endorse the 
 acts of its agents. lb. 
 
 13. In attachment against vessel. An af> 
 tachment proceeding, under chapter 482, Laws 
 1863, against a sea going vessel for work done 
 and supplies furnished in repairing and fitting 
 it for sea, being under a maritime contract and 
 void, the bond given to release the vessel is also 
 void and no action can be maintained thereon. 
 N. Y. Supr. Ct., 1874, Poole v Kermit, 37 N. Y. 
 Supr. (5 J. & Sp.) 114. 
 
 14. Indemnity bond. The voluntary per- 
 formance of a legal obligation, as to the validity 
 of which there is no doubt, will not constitute a 
 sufficient consideration for a contract ; but if 
 the right or obligation be doubtful, a waiver of 
 the right to contest it constitutes a sufficient 
 consideration. Ct. App., 1874, Home Ins. Co. v. 
 Watson, 59 N. Y. (14 Sick.) 390 ; Eev'g S. C, 1 
 Hun, 643. 
 
 15. A seal to an indemnity bond, given to in- 
 demnify the obligee against all claims of all 
 persons to money agreed to be paid over to the 
 sheriff in consideration thereof, is presumptive 
 evidence of a consideration, and throws upon 
 the obligors the burden of proving that there are 
 no valid claims to it as against the sheriff. lb. 
 
 16. A bond given to an insurance company, in 
 consideration of its paying over insurance 
 money due an attachment debtor to the sheriff, 
 conditioned to " indemnify, save, defend and 
 keep harmless " the company " against the 
 claims " of such debtor and of all other persons 
 claiming or to claim said money, and of and 
 from " all costs, damages and expenses " that 
 may arise therefrom, embraces all such claims 
 as may be asserted by legal proceedings, caus- 
 ing necessary expenditures, and not merely 
 such as are valid: Klixs and Foloeb, J. J., 
 dissent. lb. 
 
 17. Where the conditions of a bond given by 
 a railroad company to a municipal corporation 
 to keep the pavement in repair, as a considerar 
 tion for the use of its streets, are so definite and 
 prescribe in so exact terms the obligation of the 
 covenantor as to present no difficulty to either 
 party in showing at any time whether or not 
 the condition has been performed, a reservation 
 therein, that the work shall be performed under 
 the direction of such competent authority as the 
 common council may designate, does not make 
 the designation of such authority a condition 
 precedent to the liability of the obligor to re- 
 pair. Ct. App., 1872, City of Brooklyn v. Brook- 
 lyn City R. R Co., 47 N. Y. (2 Sick.) 475 ; Aff'g 
 S. C, 8 Abb. N. Y., 356; 57 Barb. 497. 
 
 18. Where a bond given by the purchaser of 
 an interest in a partnership to the retiring part- 
 ner, was conditioned to indemnify and save him 
 harmless " from all and singular the debts and 
 liabilities " of the firm, such condition being 
 followed by the clause, "liabilities as per 
 schedule of indebtedness hereto annexed ; " — 
 Held, in an action on the bond, that the intent 
 and effect of sucli clause was to limit and qual- 
 ify the general terms of the condition, and make 
 that a component part of tlie undertaking of 
 the obligors ; and that they were not liable for 
 a copartnership debt not mentioned in the 
 schedule referred to. Ct. App., 1875, Holmes v. 
 Hubbard, 60 N. Y. (15 Sick.) 183. 
 
 19. Where H, a member of the firm of S & H, 
 sold out his interest in the firm to D, who agreed 
 to pay the debts of the old firm, and immedi- 
 ately formed a partnership with S, and the lat- 
 ter afterward sold out his interest in the new 
 firm to D, who gave him a bond of indemnity 
 against all the valid debts and liabilities of that 
 firm, mentioned in a schedule annexed, among 
 which was a debt of the old firm of S & H, 
 which, after a judgment had been obtained 
 thereon in an action against the old firm, S paid, 
 with costs, and brought a suit against D, on the 
 bond of indemnity to recover back the amount 
 so paid ; — Held, that such debt against the old 
 firm was also a valid subsisting debt of the new 
 firm, and as such was included witliin and cov- 
 ered by the bond of indemnity ; and that the 
 plaintiff was entitled to recover the debt, and 
 all losses, damage and expense to which he was 
 necessarily subjected by reason thereof ; but, 
 he having failed to notify B of the action 
 against S & H, was not entitled to recover any 
 costs incurred after the service of summons on 
 him, they being unnecesary. N. Y. Supr. Ct., 
 1872, Steinhart v. Doellner, 34 N. Y. Supr. (2 J. 
 & Sp.) 218. 
 
 20. Where, upon the sale of an individual 
 bank, the purchaser gave his vendor a bond of 
 indemnity against all liabilities of the bank, in- 
 cluding claims for unpaid deposits, and judg- 
 ment was afterward recovered against such 
 vendor in a suit by a depositor, claiming that a 
 worthless note taken by him for his deposit was 
 received only as conditional payment, and fur- 
 ther, that he was induced to take it by the 
 fraud of such vendor, and, on discovery, had re- 
 scinded and offered to return the note ; — Held, 
 that, in either case, the claim was clearly with- 
 in the terms of the bond. Ct. App., 1871, Hart 
 V. Messenger, 46 N. Y. (1 Sick.) 253 ; Rev'g S. 
 C, 2 Laus. 446. 
 
 21. A bond taken by the overseers of the 
 poor, from the children of a poor persoOj Condi- 
 tioned to " defray the necessary expenses " of 
 their mother, is not in violation of the statute 
 prohibiting any ofiicer from taking any bond by 
 
BOOKS OF ACCOUNT— BOUNDARIES. 
 
 lor 
 
 color of his office, in any other case or manner 
 than s'nch as are provided hy law. Sup. Ct., 
 1871, Turner v. Hadden, 62 Barb. 480. 
 
 22. Unless taken wrongfully, under the pre- 
 tended authority of their office, such bond is 
 valid ; and it is also founded on a good consid- 
 eration, i. e. tlie legal obligation of the children 
 to support their parent. lb. 
 
 28. Such a bond is a continuing one, and a 
 recovery thereon for the expenses of supporting 
 such person up to a certain period, is not a re- 
 covery for an entire breach, and does not bar a 
 second action for subsequent support. Fabkbs, 
 J., dissents. lb. 
 
 24. The condition of such bond does not 
 cover the funeral expenses of the person sup- 
 ported, lb. 
 
 25. In an action upon an indemnity bond, the 
 judgment against the obligee is only prima facie 
 evidence, and the obligor may show that his 
 principal had a good defense to the original ac- 
 tion, which he neglected or refused to interpose, 
 or collusion between the plaintiff and defendant 
 in such action ; either of which, if establislied, 
 will defeat a recovery. Sup. Ct., 1875, Chapin 
 T Thompson, 4 Hun, 779. 
 
 26. In such a case, the defense of the statute 
 of limitations stands on the same footing and is 
 to be treated with the same respect as any other 
 defense ; and if the obligee, on being notified of 
 a suit against the obligor in which that defense 
 may be successfully interposed, refuses to set it 
 up himself or allow the obligor to do so, he can- 
 not recover in an action on the bond. lb. 
 
 27. The obligors in a bond of indemnity 
 given to a sheriff in an attachment case, are 
 liable in trespass to a third party whose goods 
 are taken by the sheriff, for the whole value 
 thereof, although there was at the time a senior 
 attachment in the hands of the sheriff, and the 
 goods were afterward sold on execution in the 
 action wherein such senior attachment was is- 
 sued, and the greater part of the proceeds ap- 
 plied thereon, provided the sheriff did not take 
 or claim that physical control of the goods 
 which is essential to a levy until after he re- 
 ceived the bond. N. Y. Supr. Ct., 1874, Miles 
 T. Brown, 38 N. Y. Supr. (6 J. & Sp.) 400. 
 
 28. Construction. A bond conditioned to 
 pay a subscription " when a bona fide subscrip- 
 tion of $10,000 is made by such persons as are 
 responsible," is substantially and sufficiently 
 complied with by the execution, by responsible 
 persons, of an agreement to guaranty the pay- 
 ment of the subscriptions and to pay a further 
 sum sufficient to make up, when added to the 
 amount of such subscriptions, the sum of 
 $10,000. Co^l. App., 1872, Wayne and Ontario 
 Collegiate Inst. v. Blackmer, 48 N. Y. (3 Sick.) 
 663. 
 
 29. Where a bond was conditioned for the 
 payment of any judgment to be recovered by a 
 third party in an action in the nature of a cred- 
 itor's bill against the obligee, as committee of a 
 lunatic, and others, to the extent of the money 
 or property of such lunatic discovered and ad- 
 judged applicable to the payment of such judg- 
 ment, and the decree in such action, which ad- 
 judged 'a certain fund applicable to the pay- 
 ment thereof, provided that a portion of such 
 fund should first be applied to discharge the 
 costs of other parties defendant therein,— i/eW, 
 nevertheless, that the obligor of the bond was 
 liable for the whole amount of such costs, as 
 well as for the amount applied on the judgment. 
 Ct. App., 1874, Nichols v. Tifft, 56 N. Y. (11 
 Sick.) 644. 
 
 30. Covenant in mortgage, securing. 
 
 Bonds which contain no provision that the prin- 
 cipal sum shall become due, in case the interest 
 on them remains unpaid for four months, al- 
 though accompanied wlien negotiated by a cer- 
 tificate of the trustees in a mortgage given to 
 secure them, that they are secured by a mort- 
 gage containing such a provision, do not become 
 due so that the holder can maintain an action 
 to recover both principal and interest upon de- 
 fault in paying interest for four months, unless, 
 by proper construction of the covenant in the 
 mortgage, it appears that it was intended to 
 give tiie bond-holder that right. N. Y. Supr. 
 Ct., 1873, Mallory v. West Shore Hud. Tiiv. R. R. 
 Co., 35 N. Y. Supr. (3 J. & Sp.) 174. 
 
 31. Interest. Upon a bond bearing date 
 June 28, 1871, conditioned for the payment of 
 " the sum of $500, on the 1st day of April, 1873, 
 with interest annually on the first day of April 
 in each year," the first interest comes due on 
 the 1st day of April, 1872. Sup. Ct., 1874, Cook 
 v. Clark, 3 Hun, 247. 
 
 32. Negotiability. Bonds by the terms of 
 which the maker has the option to pay either 
 X225 sterling payable in London, or $1,000 pay- 
 able in New York or New Orleans, the place of 
 payment to be fixed by an indorsement on the 
 back, and which have not had the place of pay- 
 ment so fixed, are not negotiable instruments. 
 Ct. App., 1873, Ledwich v McKim, 53 N. Y. (8 
 Sick.) 307; Aff'g S. C. 35 N. Y. Supr. (3 J. & 
 Sp.) 304. 
 
 33. Where such bonds are stolen from the 
 maker, while thus incomplete, a subsequent 
 bona fide holder has no authority to fill a blank 
 left for the place of payment, and can convey 
 no title to the bonds. lb. 
 
 34. Upon a transfer and assignment of such 
 bonds there is an implied warranty of title in 
 the assignor, and he is liable in case of failure 
 of title. lb. 
 
 BOOKS OF ACCOUNT. 
 See Evidence. 
 
 BOEROWER. 
 See UsuBT. 
 
 BOUNDARIES. 
 
 1. Agreement as to. The owners of lands, 
 the boundary line between which is disputed, 
 indefinite and uncertain, can fix and determine 
 such line by a parol agreement, and they will be 
 bound by a line so fixed. Sup. Ct., 1875, Stout 
 V. Woodward, 5 Hun, 340. 
 
 2. They may also by agreement submit the 
 same to the determination of a third party as 
 their joint agent or arbitrator, and will be bound 
 by his decision. lb. 
 
 3. Practical location. Where a deed con- 
 veys a specified number of acres of land off the 
 north end of a certain lot, to be divided from 
 the residue by a line parallel to the north line, 
 the survey of a line for the south line, there be- 
 ing no dispute as to the line at the time, does 
 not become binding upon the parties as a prac- 
 tical location of the boundary, by any acquies- 
 
108 
 
 BOUNTIES— BROKER. 
 
 cenoe short of twenty year's occupation in ac- 
 cordance witii it Sup. Ct., 1870, Smith v. Mc- 
 Namara, 4 Lans. 169. 
 
 BOUNTIES. 
 
 1. An agreement by a party whose son was 
 liable to draft, to pay another a certain sum and 
 that lie should have, in addition thereto, all the 
 county and town bounties to which his son or a 
 substitute for him would be entitled, if he 
 would procure such substitute, is Toid as against 
 public policy, so far as it relates to bounties 
 subsequently to be voted or offered. Sup. Ct., 
 1874, Decker v. Saltsman, 1 Hun, 421 ; Aff'd by 
 Ct. App. 
 
 2. A claim for such bounties is not assigna- 
 ble, as between third parties, having no connec- 
 tion with or relation to the bounties. lb. 
 
 3. Under a resolution by a town to pay a spe- 
 cified bounty " to each volunteer and substitute 
 who have or shall enlist, and be -credited to the 
 town," no one but the person who enlisted as a 
 volunteer or substitute, or his assignee, is enti- 
 tled to the bounty offered. lb. 
 
 4. Statute, construction of. The act of 
 1864 (ch. 8, § 22, Laws 1864), relating to the 
 payment of bounties, was not intended to have 
 a retrospective effect, and gave the county su- 
 pervisors no authority to raise money for the 
 payment of bounties or gratuities to persons 
 who had already volunteered previous to its 
 passage. Ct. App., 1870, People v. Supervisors 
 of Columbia Co , 43 N. Y. (4 Hand,) 130. 
 
 BEIDGES. 
 See Highways and Bkidges. 
 
 BROKER. 
 
 1. Authority to warrant. A broker, not 
 specially restricted, has power to sell with war- 
 ranty, either of the quality of the article sold or 
 its fitness for a particular purpose. N. Y. C. P., 
 1872, Murray v. Smith, 4 Daly, 277. 
 
 2. May act for both parties. A broker 
 may act for and bind both parties to a contract 
 by the execution and delivery of bought and 
 sold notes, where there is no fraud or conceal- 
 ment, and each partj' is aware that the broker 
 is acting for the other as well as himself. N. Y. 
 Supr. Ct., 1874, Spyer v. Fisher, 37 N. Y. 
 Supr. Ct. (5 J. & Sp.) 93. 
 
 3. If one of the parties, on receiving the bought 
 or sold note, showing the fact previously un- 
 known to him that the broker was also employ- 
 ed by and acting for the other party, makes 
 no objection on the ground of any want of au- 
 thority of the broker to bind him, but repudi- 
 ates the contract for other reasons, he thereby 
 ratifies the act of the broker done in his behalf. 
 lb. 
 
 4. Compensation, -who entitled to. The 
 fact that a broker has no federal license to act 
 as such does not affect his right to recover upon 
 an express contract for a fixed compensation. 
 N. Y. C.P., Sp. T., 1871, Woodward y. Stearns, 10 
 Abb. N. S. 895. 
 
 5. — -when earned. A broker employed to 
 negotiate a contract ia entitled to his compensa- 
 
 tion upon the execution of such contract and 
 before it is fully performed, where his commis- 
 sions are computable upon the amount to be- 
 come due his employer under it ; and he may 
 maintain an action therefor, taking the risk of 
 establishing the amount if the trial takes place 
 before full performance. lb. 
 
 6. To entitle a real estate broker to receive 
 his usual commission on a sale, it must appear 
 that his agency was, in point of fact, the pro- 
 curing cause of the sale. A bare introduction 
 of the purchaser to the vendor is not suflScient, 
 but it must appear that, either by<the introduc- 
 tion itself, or in some other manner, he called, 
 or caused to be called, the attention of the pur- 
 chaser to the very property which was sold. N. 
 Y. Supr. Ct., 1870, McClavey. Painc, 41 How. 
 140 ; S. C, 2 Sweeny 407 ; Aff'd 49 N. Y. (4 
 Sick.) 561. 
 
 7. If a broker is the procuring cause of a sale, 
 he is entitled to his commissions, although the 
 customer, afterward, goes directly to the owner, 
 and concludes the trade with him. N. Y. C. P., 
 1872, Hanford v. Shapter, 4 Daly, 243. S. P., 
 Lambden v. Tyler, 2 Hun, 162 ; Lloyd v. Matthews, 
 51 N. Y. (6 Sick.) 124; Sussdoifv. Schmidt, 55 N. 
 Y. (10 Sick.) 319 ; Mooney v. Elder, 56 N. Y. (11 
 Sick.) 238. 
 
 8. When a broker, employed to sell property 
 at a fixed price, has opened a negotiation with 
 a purchaser, which is taken by his employer 
 into his own hands, and a sale effected at a less 
 price, such broker is entitled, at least, to a rata- 
 ble proportion of the agreed commission. Ct. 
 App., 1873. MaHin v. SilTiman, 53 N. Y. (8 Sick. 
 615. 
 
 9. If the sale is nominally for the price stated, 
 but really at a less price by reason of commis- 
 sions paid to the agents of the purchaser, the 
 broker will be entitled to full commissions*. lb. 
 
 10. A broker employed to sell real estate, 
 who procures a party willing to purchase on the 
 owner's terms, and notifies the seller thereof, 
 and of the time and place for the completion of 
 the trade, is entitled to recover his brokerage, 
 even though the seller refuses to perform the 
 contract he offered to make. Ct. App., 1870, 
 JSart V. Hoffman, 44 How. 168 ; S. P., Hague v. 
 0'Con7ior, 41 How. 287 ; 1 Sweeny 472. 
 
 11. A broker who procures a purchaser for 
 the property at the price named, willing and 
 able to take it, and with whom a valid contract 
 is made for the sale thereof, is entitled to his 
 commission ; and his right thereto is in no way 
 affected by the subsequent refusal of the pur- 
 chaser to fulfil the contract. N. Y. C. P., 1871, 
 Simonson v. Kissick, 4 Daly, 143. S. P., Heinrich 
 V. Korn, 4 Daly, 74. 
 
 12 A real estate broker who has procured a 
 purchaser on the vendor's terms, is entitled to 
 the commissions agreed to be paid him, notwith- 
 standing the failure of the purchaser to perform, 
 or the vendor's failure to fully understand the 
 contract, if not caused by the fraiid or deception 
 of the broker, N. Y. Supr. Ct., 1873, Bach v. 
 Emerich, 35 N. Y. Supr. (3 J. & Sp,) 548. 
 
 13. The broker's saying," on procuring another 
 purchaser, after the first had failed to perform, 
 that he expected no commissions on the former 
 sale, does not estop him from claiming commis- 
 sions thereon ; neither is it suflBcient evidence of 
 complicity between him and the first purchaser 
 in making a pretended purchase, to defeat his 
 right to recover them. lb. 
 
 14. Where a real estate broker procures a 
 purchaser for lands on the terms specified by 
 the owner, he is entitled to his commissions even 
 
BROKER. 
 
 109 
 
 though the purchaser refuses to sign the con- 
 tract of purchase because of the insertion by 
 the owner, against the broker's objection, of an 
 unusual forfeiture clause. N. Y. Supr. Ct., 
 1873, Beebe v. Ranger, 35 N. Y. Supr. (3 J. & 
 Sp.) 452. . 
 
 15. The fact that some other speciflcations of 
 the contract had not been definitely arranged 
 before the same was presented for signature, 
 does not affect his rights, if no objections to 
 signing the contract were made on that account, 
 lb. 
 
 16. Neither will the broker waive his rights 
 by accompanying the seller to the place where 
 the contract was to he closed, and witnessing its 
 presentation and rejection on account of tlie 
 forfeiture clause to which he had previously ob- 
 jected, lb. 
 
 17. Where a broker has found a purchaser 
 ready and willing to buy on the terms asked, it 
 is not necessary, to enable him to recover his 
 commission, that he should first show that such 
 purchaser was of suflScient pecuniary responsi- 
 bility, or that he should cause him to tender his 
 principal a written contract of sale. N. Y. C. 
 P., 1872, Cook V. Kroemeke, 4 Daly, 268. 
 
 18. Under an agreement between a broker, 
 and the owner of premises, entrusted to him 
 for sale, that he shall receive his commissions in 
 case such owner shall sell to a person named, 
 who is unfriendly to the broker and will not 
 purchase from or through him, such broker is 
 entitled to recover his commissions from his em- 
 ployer if the latter afterwards sell the premises 
 to such person, even though he does it through 
 other brokers. Sup. Ct., Sp. T., 1872, Emberson 
 V. Dean, 46 How. ,286. 
 
 19. A. broker employed by the owner of real 
 estate to sell the same at a specified price, on 
 commission, no time being fixed for the sale, is 
 entitled only to a reasonable opportunity to find 
 a purchaser at that price, and if he fails to do 
 so within such time, he is not entitled to his 
 commissions upon a subsequent sale by tlie 
 owner at a lower price, even though the pur- 
 chaser is one with whom the broker had pre- 
 Tiously negotiated. Sup. Ct., 1874, Satterthwaite 
 T. Vreeland, 48 How. 508; S. C, 3 Hun, 152. 
 
 20. — -which entitled to. Where two bro- 
 kers are separately employed to sell the same 
 property, and each of them has called the at- 
 tention of the same -purchaser thereto, the one 
 who afterward succeeds in effecting a sale is 
 entitled to commissions to the exclusion of the 
 other. N. Y. C. P., 1869, Maracella v. Odell, 3 
 Daly, 123; S. P., Dreyer v. Bnuch, 42 How. 22; 
 3 Daly, 434; 10 Abb. N. S. 343. 
 
 21. — on future earnings. Under a con- 
 tract to pay a broker five per cent, on the earn- 
 ings of certain vessels in case he succeeds in 
 chartering them to the United States govern- 
 ment, if he negotiates a charter for one month, 
 and so much longer as the government requires 
 the vessels at the same rate, he is entitled to his 
 commission upon the whole earnings of the ves- 
 sels under the charter, and not merely on the 
 earnings of the first month. N. Y. Supr. Ct, 
 1873, Sturgis v. New Jersey Steam Navigation Co., 
 36 N. Y. Supr. (3 J. & Sp.) 251. 
 
 22. — -wnen not earned. Where the owner 
 of a patent agreed to pay a patent solicitor a 
 certain per centage, provided he affected a sale 
 or obtained a customer for all the unsold terri- 
 tory of such patent, and the latter, in pursuance 
 of such agreement had conversations with cer- 
 tain parties, in consequence of which they after- 
 ward formed a copartnership with such owner 
 
 for selling rights under such patent, and putting 
 the same to practical use, the firm to pay him a 
 certain sum out of the net profits; Held, that 
 this did not constitute a sale, within the mean- 
 ing of the agreement, and the solicitor was not 
 entitled to the commission stipulated for. 
 James J., dissents. Sup.' Ct., 1874, Fraser v. 
 Wyckoff 2 Hun, 546. 
 
 23. A broker employed to sell State bonds, 
 under an agreement by which his compensation 
 for all services and expenses was to be a per- 
 centage not to exceed two per cent, of the pro- 
 ceeds of the bonds sold by him, can recover 
 nothing if he sold no bonds before the agency 
 was taken from him. Sup. Ct., 1875, C^n v. 
 Coke, 3 Hun, 396. 
 
 24. — for securing loan. The statute fixing 
 the rate of brokerage for procuring loans at one- 
 half of one per cent, of the sura loaned, applies 
 to all loans without regard to time ; and a con- 
 tract for a larger percentage on a loan for a 
 longer time than one year is, therefore, void. Ct. 
 App., Cook V. Phillips, 56 N. Y. (11 Sick.) 311. 
 
 25. Although it maj' be allowable to pay for 
 extra services not usually necessary in procuring 
 loans, in addition to the prescribed brokerage, 
 yet, they should be separated, so that it may be 
 seen whether the compensation is reasonable or 
 only a cover for demanding a larger commis- 
 sion, lb. 
 
 26. From both parties. Brokers employed 
 merely to bring the parties for the sale and pur- 
 chase of real estate together to enable them to 
 make their own bargains, may make agreements 
 with each of the parties for commissions for his 
 services, and such agreements will be valid. 
 Sup. Ct., 1872, Siegel v. Gould, 7 Lans. 177. S. 
 P. Eowe V. Stevens, 53 N. Y. (8 Sick.) 621 ; Affi'g 
 35 N. Y. Supr. (3 J. & Sp.) 189. 
 
 27. In such a case the broker is not an agent 
 for either party to buy or sell, but stands indif- 
 ferent between them, and there is no conflict of 
 duty or breach of confidence. lb. 
 
 28. A broker cannot recover commissions for 
 negotiating the sale of a steamboat, where it 
 appears that he was, at the time of the sale, em- 
 ployed by the purchaser to examine the boat 
 and report as to its condition and fitness for 
 the proposed use, his position being inconsistent 
 with his acting in good faith. Sup. Ct., 1876, 
 Place V. Greenman, 4 Hun, 660. 
 
 29. Duty and liability to principal. Under 
 an agreement by W " to use his best efforts " to 
 purchase certain stock for B upon certain terms 
 as to payments, compensation and commissions, 
 W is the broker of B, and is bound, not only by 
 the terms of the contract, but by his duty to his 
 principal, to use his best efforts to buy the stock 
 on terms favorable to his principal. Sup. Ct., 
 1871, Marvin y. Buchanan, 62 Barb. 468. 
 
 30. If such broker, after agreeing to use his 
 best efforts to purchase the stock at a specified 
 price for cash, fraudulently concealed from his 
 principal the fact that he had already made a 
 contract for the purchase thereof, on time, on 
 his own unsecured paper ; and, by a false state- 
 ment as to the amount paid by him, obtained a 
 larger amount than he was entitled to for com- 
 missions, the principal would he entitled to res- 
 cind the contract for the fraud, and recover 
 back the consideration paid. lb. 
 
 31. The principal could also set up the fraud 
 to an action on the contract by an assignee or 
 receiver of the fraudulent agent, and the latter 
 could not maintain an action even for the sum 
 actually paid by the agent. lb. 
 
 32. It is the duty of brokers holding gold for 
 
110 
 
 BROKER. 
 
 their principal, who receive from him contracts 
 for the sale thereof, deliverable within certain 
 dates, part at iiis option and part at the option 
 of the buyer, with instructions to deliver the 
 amounts to such buyer, to tender the amount 
 which was at the option of the principal to the 
 buyer within the time specified, and if they fail 
 to do so Siey are liable to their principal for the 
 damages sustained by him. Sup. Ct., 1876, 
 Speyer v. Colgate, 4 Hun, 622. 
 
 33. It is the duty of the principal in such case, 
 when informed of the neglect of his brokers, to 
 take at once the necessary steps to secure him- 
 self against further loss, aad the brokers are not 
 responsible therefor. . lb. 
 
 34. The contract of a stock broker to make 
 purchases and sales of stock, and hold and carry 
 them subject to the orders of the employer, upon 
 the customary margin, or deposit of per centage 
 as security, in consideration of the usual com- 
 mission and interest on advances above the mar- 
 gin, is not performed when he makes a sale, but 
 he is bound to carry the stock for a reasonable 
 time. Ct. App., 1874, White v. Smith, 54 N. Y. 
 (9 Sick.) 522 ; Afi'g S. C, 6 Lans. 5. 
 
 35. The broker cannot revoke his general 
 agreement, without notice, but may do so at any 
 time if, upon demand and notice, the customer 
 does not keep his margin good ; and may close 
 it, upon notice, after he has carried the stock 
 for a reasonable time. lb. 
 
 86. Where he makes a short sale by order of 
 the customer, he has no right, unless expressly 
 so agreed, to buy in stock to cover the sale, 
 without notice to or direction from his customer, 
 and if he does so, he becomes hable for any loss 
 he thus occasions his principal. lb. 
 
 87. The customer has a right to rely implicitly 
 upon the fidelity of the broker, and is not 
 bound himself to attempt a purchase of stock to 
 cover the sale in order to entitle himself to re- 
 cover his loss from the broker, lb. 
 
 38. A broker employed by a customer to pur- 
 chase and hold stock, cannot compel the latter 
 to adopt a purchase from himself ; nor is it ma- 
 terial that the intention was honest, or, that the 
 broker did better by his principal by selling him 
 his own stock tlian he could have done by going 
 into the open market. Ct. App., 1874, Taussig 
 T. Hart, 58 N. Y., (13 Sick.) 425. 
 
 39. Whether, under a contract to purchase and 
 carry stocks, the relation of pledgor and pledgee 
 exists between a broker and his customer, or 
 whether the broker holds the stocks under a 
 special contract, he is, in either case, bound to 
 keep at all times on hand or under his control, 
 either the particular shares purchased, or an 
 equal amount of other shares of the same kind, 
 and to have them readyto deliver to such cus- 
 tomer on his paying the amount due thereon. lb. 
 
 40. Whenever the broker sells, so as not to 
 have the requisite amount of shares remaining 
 for delivery, the sale will be deemed to be of 
 the stock of his customer, and the latter can 
 ratify and claim the benefit of the sale, or claim 
 the value of the shares on the day of sale. lb. 
 
 41. The subsequent acquisition by the broker 
 of a sufficient number of shares to replace those 
 held for account of his customer, will not relieve 
 him from liability, lb. 
 
 42. A broker holding stocks for another upon 
 a margin is not bound to deliver, or have on 
 hand for delivery, any particular shares or the 
 identical shares purchased for their customer ; 
 and if, after an Irregular sale for want of margin, 
 which the customer repudiates because no notice 
 was given, he agrees to consider the sale made 
 
 as on his own account, and to hold other like 
 shares on account of the customer, to which the 
 latter assents, he is not liable as for a conversion 
 of the stocks so sold. Ct. App., 1871, Stewart 
 V. Drake, 46 N. Y., (1 Sick.) 449. 
 
 48. Where the customer agrees to keep the 
 margin satisfactory at all times, his failure to 
 increase it after notice, when the value of the 
 stock together with the margin furnished, is less 
 than the amount advanced by the broker, will 
 authorize a sale by the latter ; and a notice of 
 two days', where the parties reside in the same 
 city, is sufficient. 
 
 44 Where a broker advances money upon a 
 purchase of gold for his principal, the latter 
 depositing with him a certain sum as a margin, 
 he has a lien upon the gold to the amount of 
 his advances, and a right to require that his 
 principal shall keep up his margin ; and, upon 
 the neglect of the latter so to do, may, after due 
 notice, sell the gold to reimburse himself, and 
 maintain an action against his principal for any 
 deficiency. N. Y. C. P., 1869, Schepeler v. 
 Eisner, 3 Daly, 11. 
 
 45. In such case, the broker holds the gold by 
 way of pledge, to secure his advances, and it is 
 not necessary that he should first tender the 
 same to his principal. lb. 
 
 46. In the absence of proof to the contrary, 
 the court will infer that a sale of the gold upon 
 the gold-board was the proper mode, and the 
 best for disposing of it at its market value. lb. 
 
 47. If a stockbroker, without authority, trans- 
 fers stock belonging to a customer to his own 
 account, and afterward sells it at an advance, 
 the customer can charge him with any profit 
 realized by him from the sale ; or may, at his 
 ;election, treat him as having converted the 
 
 stock to his own use, and charge him with dam- 
 ages for the conversion ; but he cannot charge 
 the broker with the price or value of the stock 
 upon either ground, and at the same time claim 
 that the stock is undisposed of ; and that, for 
 that reason, the account is not closed. Ct. App,, 
 1872, Taussig v. Hart, 49 N. Y. (4 Sick.) 301. 
 
 48. A stockbroker employed to operate in 
 stocks upon the plan of " short sales," stock de- 
 liverable next day, with the right to protect 
 himself in case his customer did not keep his 
 margin good, being directed by the latter to sell 
 certain specified stocks, sold " short, in the 
 usual manner, borrowing the stock o other 
 customers to deliver ; and the margin being ex- 
 hausted by a rise in the stock, notified his cus- 
 tomer of the fact, requesting further margins, 
 and upon his failure to comply with the request, 
 purchased stocks at the advanced price to re- 
 pay those borrowed, — Held, that the purchase 
 was authorized, and was in legal effect for ac- 
 count of such customer, who was chargeable 
 witli the amount paid. Ct. App., 1873, Knowlton 
 V. Fitch, 52 N. Y. (7 Sick.) 288. 
 
 49. The fact that such broker, in making de- 
 livery of the stock sold, simply set it off against 
 the same number of shares previously borrowed 
 of him by the purchaser, and which belonged 
 to another customer, does not affect the rights 
 of the parties. lb. 
 
 50. Under an authority given to a broker by 
 a party for whom he is carrying stocks on margin 
 to sell such stocks in his discretion at public or 
 private sale, and without notice to the principal, 
 whenever the latter's margin shall fall below 
 five per cent., the broker has a right to sell for 
 his own protection, and is not limited to an 
 exercise of the authority in the interest of the 
 principal. All that he is bound to do is to act 
 
BROOKLYN. 
 
 Ill 
 
 in good faith, and in the exercise of his best 
 judgment and discretion. N. Y. Supr. Ct., 1874, 
 Wicks V. Hatch, 88 N. Y. Supr. (6 J. & Sp.) 95. 
 '51. Under such authority a sale at the board 
 of brokers is valid. lb. 
 
 52. Unauthorized sale by. A broker who 
 purchases and carries bonds on marginal secu- 
 rity, holds them as a pledge for the payment of 
 advances made on their purchase ; and a sale 
 thereof by him without authority and without 
 notice, will be an unlawful conversion, rendering 
 him liable for any subsequent enhancement of 
 their market value. Brooklyn City Ct., 1871, 
 Eead v. Lambert, 10 Abb. N. S. 428. 
 
 53. In the absence of any time being fixed 
 for reimbursement, the broker can put his cus- 
 tomer in default only by tendering the bonds 
 or stocks and demanding payment. lb. 
 
 54. If after such tender and demand, and no- 
 tice of sale, he sells the bonds, he will be liable 
 only for the net proceeds thereof after satisfy- 
 ing his claims. lb. 
 
 55. A broker with whom stock is pledged as 
 security against loss in some transactions in 
 gold, to be conducted by him for his principal, 
 cannot lawfully sell such stock in case of loss 
 in those transactions, without first notifying 
 the principal of the amount due him, and call- 
 ing for payment. If the principal then ne- 
 glects to provide money to meet the losses or 
 liabilities incurred, the broker may, on due no- 
 tice, sell so much of the stock as is necessary to 
 raise the sum required. Sup. Ct., 1872, Law- 
 rence V. Maxwell, 6 Lans. 469 ; S. C. 64 Barb. 
 102; AfE'd S. C, 53 N. Y. (8 Sick.) 19. 
 
 56. No custom among brokers in the city 
 where the transaction occurs, to so use the 
 stock held by them as security, or similar use 
 by the particular broker of the stock of the 
 same principal, previously held by him as secu- 
 rity, without objection, will justify such sale. lb. 
 
 57. If, on tender of the amount due the 
 broker upon the transaction in which the loss 
 occurred, and demand of the stock, he refuses 
 or is unable to return it, he is liable to the prin- 
 cipal as for the conversion thereof. lb. 
 
 58. Where a firm of brokers bought stock, 
 under an agreement that they should do so for 
 the joint account of themselves and their em- 
 ployers, furnish the money therefor, and sell the 
 same for the joint account of both parties, 
 whenever they should think best or see fit, and, 
 after holding the certificates about one year, 
 one member of the firm took them and sold 
 them, without the knowledge or consent of his 
 co-partner, for less than their original cost, 
 and converted the proceeds to his own use, — 
 Seld, that this sale, if considered as the indi- 
 vidual act of such partner, was a wrongful con- 
 version of the stock, and if considered as the 
 act of the firm, it was not a sale in accordance 
 with the contract ; and the brokers could not, 
 in either case, maintain an action against the 
 other parties to recover their share of the loss 
 on such sale. N. Y. Supr. Ct., 1871, Thompson 
 V. Brown, 34 N. Y. Supr. (2 J. & Sp.) 1. 
 
 59. The subsequent purchase by the brokers 
 of one-half the amount of stock so sold, and 
 tender thereof to the other parties, could 
 not heal this breach of agreement, or entitle 
 them to recover from the latter for any loss 
 in the transaction. lb. 
 
 60. Settlement for principal. Where a 
 broker made a " short " sale of gold for account 
 of his customer, borrowing the gold for delivery 
 upon his personal responsibility, and the market 
 having taken an unexpected rise, called upon 
 
 his principal for immediate payment of addi- 
 tional margin, which the latter declared himself 
 unable to supply, saying he was ruined, and 
 that the broker must care for himself, where- 
 upon such broker, following the usual custom of 
 brokers in their personal dealings, effected a 
 settlement with the lender, — Held, that it should 
 have been submitted to the jury whether the 
 settlement was in good faith and was discrete 
 and judicious, and if so, then the broker was 
 not liable, though it proved unfortunate. Ct. 
 App., 1874, Cameron v. Durkheim, 55 N. Y. (10 
 Sick.) 425. 
 
 61. Joint purchase. In an action for ac- 
 counting between a broker and his employer as to 
 stock purchased by the former, wherein he claims 
 that the purchase was several and not joint, abill 
 rendered by the broker for the share of the em- 
 ployer, adding interest and commission, and 
 stating that the purchase was joint, will con- 
 clude him, where the other evidence is conflict- 
 ing. N. Y. Super. Ct., Sp. T., 1875, Crosby v. 
 Watts, 49 How. 364. 
 
 62. A broker's books ought, in such a case, 
 to show not only the purchase, but on whose 
 account and by whom made. lb. 
 
 63. Payment to. Ordinarily a broker 
 authorized only to sell property, has no power 
 to receive payment therefor ; and where the 
 owner has invested the broker with no evi- 
 dences of title, the purchaser cannot discharge 
 himself for liability for the price by making 
 payment to the broker. Sup. Ct., 1874, Bassett 
 V. Lederer, 1 Hun, 274. S. P., Gallup v. Lederer, 
 1 Hun, 282. 
 
 64. The fact that the broker represents him- 
 self to be the actual owner cannot protect the 
 purchaser, so long as the owner had conferred 
 upon him no colorable authority to make the 
 representation. lb. 
 
 65. Revocation of authority. A notice 
 by the owner of a change of purpose about sell- 
 ing, given to one of two separate firms in whose 
 hands he has placed his property for sale, does 
 not affect the other, nor revoke its agency. 
 Neither do acts of the owner in the way of im- 
 provements, inconsistent with a design to sell, 
 charge a broker with notice or revoke his 
 authority. Com. App. 1872, Lloyd v. Matthews, 
 51 N. Y. (6 Sick.) 124. 
 
 BEOOKXYN. 
 
 Charter amended Laws 1871, pp. 1185, 1989. 
 Laws 1873, p. 1290, Laws 1874, p. 796. 
 
 1. Act altering map. "The act to alter the 
 commissioners' map of the City of Brooklyn " 
 (chapter 507, Laws 1869), having for its "sub- 
 ject the closing of one street and opening of a 
 new one, the expense to be assessed on prop- 
 erty in a manner different from that prescribed 
 in the charter, being a local act, and not express- 
 ing that subject in its title, is unconstitutional 
 and void. Sup. Ct., 1870, People ex rel. Pratt 
 V. Common Council of Brooklyn. 13 Abb. N. S. 
 121. 
 
 2. Advertisements for proposals. The 
 commissioners not being required to determine 
 beforehand the kind of pavement to be laid, 
 may properly advertise for proposals for 
 different kinds, and determine that question with 
 reference to the relative cost, and thereupon 
 award the contract to the lowest bidder for the 
 kind selected. Sup. Ct., Sp. T., 1872, In matter 
 of Petition ofN. Ford, 6 Lans. 92. 
 
112 
 
 BROOKLYN. 
 
 8. Authority to assess. The authority to 
 assess for local improvements is valid, notwith- 
 standing it is conferred only by a section which 
 refers to another statute, such an assessment 
 not being a tax within the meaning of Art. 7, 
 section 13 of the constitution. lb. 
 
 4. Notice of bearing. An omission by 
 the committee to whom the report of assessors 
 is referred, to give notice of a hearing of ob- 
 jections, before passing upon them, and the con- 
 firmation of the assessment by the common 
 council, as required by section 24, title 4, of the 
 city charter {chapter 384, Laws 1854), is fatal 
 to the validity of the assessment. lb. 
 
 6. District of assessment. The require- 
 ment of section 5, &c., title 4, of the charter, that 
 a district of assessment shall be laid out pre- 
 liminarily, is a restriction merely upon the power 
 of the common council in respect to work 
 ordered by them. lb. 
 
 6. The act of 1848 (chapter 844), widening a 
 portion of Middle street in the City of Brooklyn, 
 and changing the name of the part so widened to 
 Prospect Avenue, authorizes an assessment for 
 paving and grading the same only upon lands 
 contiguous to the avenue, and not upon those 
 near or adjacent to but separated from it. Ct. 
 App., 1873, In matter of Ward, 52 N. Y. (7 Sick.) 
 395. 
 
 7. The fact that the common council have 
 power to fix the assessment district, when a 
 local improvement is made under the provisions 
 of the city charter, does not aid in the con- 
 struction of this statute, which not only directs 
 the improvement to be made, but defines the 
 property assessible. lb. 
 
 8. Although the assessment for improve- 
 ) ments on St. Felix st., from DeKalb Ave. to 
 
 Fulton streets, provided for by chapter 812, Laws 
 of 1872, does not embrace all of the territory af- 
 fected by the original assessment, which that 
 act was intended to confirm ; yet, as to those 
 lots located within the district embraced in the 
 act, the description is sufficient and the assess- 
 ment valid. Ct. App., 1874, In the matter of Van 
 Antwerp, 56 N. Y. (11 Sick.) 261. 
 
 9. Assessments, to 'whom to be made. 
 Under chapter 384, Laws of 1854, entitled " An 
 act to consolidate the cities of Brooklyn and 
 Williamsburgh," an assessmentfor flagging side- 
 walks must be made against the owner or occu- 
 pant of the lands upon which it is imposed ; 
 otherwise, it will be invalid. Com. App., 1872, 
 Newell V. Wheeler, 4 N. Y. (3 -Sick.) 486. 
 
 10. Although it is provided by section 10, 
 title 5, of that act, that no warrant for the col- 
 lection of an assessment shall issue, until all the 
 proceedings had in levying the assessment shall 
 have been examined and certified as correct by 
 the street commissioner and attorney, their 
 certificate is not conclusive, in an action to 
 annul a tax certificate of sale founded on the 
 assessment, that such assessment was made to 
 the proper person. lb. 
 
 11. Upon a sale of real estate under a muni- 
 cipal assessment, the conveyance under section 
 33, chapter S84, Laws of 1854, is only evidence 
 of the regularity of the proceedings " had for 
 the sale," not of those upon which the assess- 
 ment was based ; and the provision of section 
 10, making the certificate of the street commis- 
 sioner and city attorney conclusive evidence of 
 the regularity of the proceedings had in levying 
 the assessment, does not make it evidence that 
 the assessment was against the proper person ; 
 and the purchaser to enforce his claim must, 
 therefore, show the identity of the owner or 
 
 occupant with the person named in the assess- 
 ment. Ct. App., 1874, Marsh v. City of Brooklyn, 
 59 N. Y. (14 Sick.) 280 ; Eev'g S. C., 2 Hun, 142. 
 
 12. Although the charter of Brooklyn re- 
 quires assessments for street improvements to 
 be made in the name of the owner or occupant 
 of the premises, yet, an assessment made in the 
 name of one who was owner until after the pro- 
 ceedings for assessment were commenced and 
 commissioners appointed, is, in the absence of 
 evidence that notice of a change of ownership 
 pending such proceedings was brought home to 
 the commissioners, prima facie valid and a lien. 
 Com. App., 1871, Morange v. Mix, 44 N. Y. (5 
 Hand,) 316. 
 
 13 — for filling lots. The re-enactment by 
 section 1, chapter 685, Laws of 1868 of the pro- 
 vision of the city- charter of Brooklyn (subd. 
 23, section 13, title 2, chapter 384, Laws of 1854), 
 giving the common council power to fill in lots, 
 did not operate to repeal the provision of section 
 i; chapter 35, Laws of 1858, as amended by 
 section 1, chapter 213, Laws of 1859, prohibiting 
 any proceedings by the common council of the 
 city for digging down or filling in lots, unless 
 upon petition of a majority of the land owners, 
 &c., that prohibition being by a separate and 
 independent provision, and the two acts not 
 being inconsistent ; nor was it supplanted or 
 repealed by chapter 169, Laws of 1861, or by 
 chapter 74, Laws of 1866, or by chapter 97, 
 Laws of 1869, none of which relate to the filling 
 of lots ; but it is recognized as being still in 
 force by chapter 866, Laws of 1871. Ct. App., 
 1875, In matter of Banta, 60 N. Y. (16 Sick.) 165. 
 
 14. An assessment in 1872 for filling lots, 
 done under an order of the common council 
 made without any petition, was therefore void, 
 lb. 
 
 15. — for Prospect Park. The several 
 acts of the legislature relating to the selection 
 and establishment of Prospect Park, do not 
 authorize the assessment of any portion of the 
 expense of acquiring title to and constructing 
 said park, upon adjoining lands in the town of 
 Flatbush. Ct. App., 1875, In Matter of Prospect 
 Park, 60 N. Y. (15 Sick.) 398; Aff'g S. C, sub. 
 nom. Brooklyn City v. Lott, 2 Hun, 628. 
 
 16. The acts for the extebsion of said park 
 (chapter 314, Laws of 1868 ; chapter 715, Laws 
 of 1872), did not confer any such power, nor ex- 
 tend the territorial limits within which assess- 
 ments could be made. lb. 
 
 17. If the assessment of lands outside the city 
 was authorized by those acts, they would be un- 
 constitutional and void, because the apportion- 
 ment and assessment thereby directed was not 
 only for lands to be taken under those acts, but 
 to pay for lands previously taken. lb. 
 
 18. The " act to provide for the collection of 
 assessments against Prospect Park," etc., 
 (chapter 711, Laws of 1872), is a local act, and 
 embraces more than one subject, and does not 
 express its subject in its title, and is therefore 
 unconstitutional. lb. 
 
 19. Sewers, construction of. The pro- 
 vision of section 4, chapter 385, Laws of 1859, 
 prohibiting the commissioners of sewers in the 
 City of Brooklyn from proceeding with the con- 
 struction of any sewer except upon advertise- 
 ment for proposals, as therein provided, applies 
 only to the contract for the original construction 
 of the sewer, and does not require a second ad- 
 vertisement in case the work is abandoned by 
 the contractor. Ct. App., 1873, In Matter of 
 Leeds, 53 N. Y. (8 Sick.) 400. 
 
 20. In such case, the bond of the contractor is 
 
BROOKLYN. 
 
 113 
 
 deemed an adequate indemnity for any addi- 
 tional expense incurred in completing tiie work, 
 and tlie commissioners are autliorized to finish 
 tlie construction at fair prices, and assess tlie 
 expense as provided in the act. lb. 
 
 21. ■ Even if they did not possess this power, it 
 would be incumbent upon the party objecting to 
 the assessment to show that it had been in- 
 creased by fraud or in consequence of the irreg- 
 ularity ; the failure to re-advertise would not, of 
 itself, be sufficient. lb. 
 
 22. Upon an application under the provisions 
 of chapter 521, Laws of 1857, for the appoint- 
 ment of commissioners to open streets for the 
 purpose of constructing sewers in the city of 
 Brooklyn, the Supreme Court has no power to 
 inquire into the necessity for appropriating the 
 land, further than it may be incidentally in- 
 volved in the determination of the question 
 whether or not the use is a public one ; the 
 board of water and sewerage commissioners 
 being, undei" the act, the sole judges of such ne- 
 cessity. Ct. App., 1873, In Matter of Fowler, 53 
 N. Y. (8 Sick.) 60. 
 
 23. There being nothing in the act prescrib- 
 ing the time when the application shall be made, 
 — Held, that it might be made as well after as 
 before the actual construction of the sewers. lb. 
 
 24. The words " to construct" and " be con- 
 structed " are not, in the purview of the act, to 
 be confined to the bare act of building the 
 sewer ; but the power to construct and to use 
 the streets for that purpose, has reference to the 
 maintainance and protection of the sewer as well 
 as to its erection. Hence, the powers of the 
 commissioners are not exhausted upon the com- 
 pletion of the work. lb. 
 
 25. Review of assessments. The limita- 
 tion of the power of. the court, by chapter 483, 
 Laws 1871, in case of irregularity, to a reduction 
 of an assessment to the extent of its increase by 
 the irregularity, though retroactive, does not 
 apply to a case where the assessment is wholly 
 invaUd. Sup. Ct. Sp. T., 1872, In Matter of Pe- 
 tition ofN. Ford, 6 Lans. 92. 
 
 26. The resignation of some of the commis- 
 sioners appointed by chapter 460, Laws 1868, 
 which authorizes the repavement of a street, 
 and their subsequent employment on the work 
 and compensation for part of it, will not be held 
 to vitiate the assessment, in the absence of proof 
 of fraud or injury to the public interests, but 
 the court can grant no further relief than to de- 
 duct from the assessment the sum embraced 
 therein for compensation to such commission- 
 ers, lb. 
 
 27. Vacating. Under chapter 838, Laws of 
 1858, chapter 169, Laws of 1861, and chapter 
 589, Laws of 1862, assessments for street im- 
 provements should be vacated, if the petition 
 for the work was not signed by a majority of 
 the landowners. Sup. Ct., 1875, Kieman, In 
 Matter of, 3 Hun, 623. 
 
 28. The City Court of Brooklyn, although 
 created as an inferior local court, ceased to be 
 so under the amendment to section 12 of the 
 judiciary article adopted in 1869 ; and the acts 
 of 1870 and 1871 extending its jurisdiction are 
 constitutional and valid. Brooklyn City Ct., 
 1872, Landers v. Staten Island R. R. Co., 13 Abb. 
 N. S., 338; Rev'd S. C, 14 Abb. N. S., 346: 
 53 N. Y. (8 Sick.) 450. 
 
 29. That court has jurisdiction of an action 
 by a resident of Brooklyn against a corporation 
 of the city of New York and served with sum- 
 mons in that city. lb. 
 
 Jurisdictioxi enlarged, chapter 282, 492, Laws of 
 
 1871; chapter 688, Laws o/1872; chapter 239, 
 £au>so/" 1873. 
 
 30. Justice's clerk. Tlie act creating an ad- 
 ditional justice's court, (chapter 689, Laws 1868), 
 does not either expressly or by implication, con- 
 fer upon it power to appoint a clerk. Sup. Ct., 
 1869, Cassidy v. City of Brooklyn, 10 Abb. N. S., 
 297; S. C, 60 Barb. 105; AWd, 47 N. Y. (2 
 Sick.) 659. 
 
 31. Such appointment, if authorized, would 
 need the_ concurrence of the mayor as well as 
 the aldermen, they together constituting the 
 common council. lb. 
 
 32. Sale of lands. Although the title to 
 lands appropriated in fee for the Brooklyn Park 
 is impressed with a trust in favor of the public, 
 the legislature has power to relieve the city of 
 that trust, and to authorize a sale of such part 
 of the lands as is not needed for the purposes of 
 the park. Ct. App., 1871, Brooklyn Park Com- 
 missioners V. Armstrong, 45 N. Y. (6 Hand,) 234. 
 
 33. The fact that adjoining property has been 
 enhanced in value in anticipation of the park, 
 and greater assessments and taxes laid and paid 
 thereon in consequence, will not render invalid 
 an act authorizing such sale, as impairing the 
 obligation of contracts, such taxation not being 
 in the nature of a contract. lb. 
 
 34. The lands having been, however, by the 
 act appropriating them, specifically pledged for 
 the payment of bonds issued to pay the awards, 
 an act authorizing their sale discharged of this 
 lien impairs the obligation of the conwact with 
 the bond-holders, and is therefore void ; and it 
 will make no difference that such act directs 
 that the proceeds be paid into the treasury to 
 form a sinking fund for the redemption of the 
 bonds. lb. 
 
 36. Inability for acts or neglects of 
 officers. Under the city charter of 1854 as 
 amended by the act of 1862 (p. 203, section 39), 
 an action cannot be maintained against the city 
 for non-feasance or misfeasance on the part of 
 its officers, e. g. for negligence on their part in 
 constructing a sewer, whereby plaintiff's prem- 
 ises were flooded. Ct. App., 1869, Gray v. City 
 of Brooklyn, 10 Abb. N. S. 186. Woodkuit and 
 Mason, J. J., dissent. 
 
 36. Said section 39 is constitutional and valid. 
 It was not intended to divest persons affected 
 thereby of tlieir riglits, but to change and limit 
 their remedies, lb. 
 
 37. The words " this act " therein must be 
 construed as referring to the charter as thereby 
 amended, not merely to the amendatory act. 
 lb. 
 
 38. Licenses to cartmen, etc. The pro- 
 visions of the city charter relative to licensing 
 cartmen, etc., expressly authorize the power to 
 grant licenses to be delegated to the mayor, and 
 an ordinance delegating that power to tlie mayor 
 is in that respect valid, and the requiring of a 
 license from a cartman is a proper regulation 
 for the benefit of the city and its citizens. Com. 
 App. 1874, City of Brooklyn v. Breslin, 57 N. Y. 
 (12 Sick.) 591. 
 
 39. The ordinance prohibiting any person to 
 drive within the city for hire, any cart, etc., for 
 the transportation of goods, without a license 
 from the mayor, applies as well to one who, hav- 
 ing carts for his own business, lets them out for 
 hire to carry goods for others, as to those pur- 
 suing the separate and independent business of 
 cartmen, and he is liable to the penalties there- 
 by imposed if he has no license. lb. 
 
 40. Canceling licenses. The provision of 
 section 8, chapter 649, Laws of 1873, for the can- 
 
114 
 
 BUFFALO— CANALS. 
 
 cellation of licenses on proof of violations of the 
 excise laws by licensed persons, was not repealed 
 as to tlie city of Brooklyn by the charter of 
 
 1873, but that act shows an intent to keep it in 
 force there. A saloon license may therefore be 
 canceled for such a violation of law as keeping 
 open and selling beer on Sunday. Ct. App., 
 
 1874, People ex rel. Presmeyer v. Comm'rs of 
 Police, etc., of Brooklyn, 59 N. Y. (14 Sick.) 92. 
 
 BUFFALO. 
 
 Charter amended chapter 719, Laws of 1871 ; 
 chapter 827, Laws of 1872 ; chapter 730, Laws 
 of 1873 ; chapters 729-770, Laws of 1874. 
 
 1. Assessment for improvements. The 
 city of Buffalo had power, under chapter 764, 
 Laws of 1857, authorizing it to remove obstruc- 
 tions in Buffalo creek, and assess the expense on 
 adjoining owners, to lay an assessment upon 
 such owners for the expense of removing a 
 wreck, even though they might have abated 
 it as a nuisance, and its being there was 
 caused by the negligence of the city. Buff. 
 Supr. Ct., 1870, Btiffalo Union Iron Works v. City 
 of Buffalo, 13 Abb. N. S. 141. 
 
 2. — of taxes. It was not the purpose of 
 chapter 388, Laws of 1859, providing for the as- 
 sessment of incorporated companies, and the 
 making of the assessment rolls in accordance 
 with chapter 456. Laws of 1857, sections 1 and 2, 
 to prescribe the form of the roll, but simply the 
 process to reacli the desired result ; and, there- 
 fore, the provisions of the charter relative to the 
 assessment of the capital stock of such com- 
 panies so far as the form is concerned, remain 
 unaffected by either of said acts. Ct. App., 
 1872, Niagara Elevating Company v. McNamara, 
 50 N. Y. (5 Sick.) 653. 
 
 3. Although an assessment opposite the name 
 of such a company was placed under a column 
 headed " valuation of personal property," — 
 Held, that the collector had a right to suppose 
 the valuation was of the capital stock classed 
 under its generic name of personal property, and 
 the warrant and roll did not apprise him of any 
 lack of jurisdiction or of any vital error on the 
 part of the board of assessors, and therefore 
 protected him in making a levy. lb. 
 
 4. Bridges. The Act of 1848 (ch. 198 Laws 
 of 1848), authorizing the Common CouncU, upon 
 giving fifteen months notice, to require the build- 
 ing of a draw in their bridge by the B and H 
 Turnpike Co., oi* in case of their refusal, to re- 
 move the bridge, contemplated, not a confisca- 
 tion of the use of the bridge to the city, but its 
 entire removal, in case of non-compliance with 
 the order of the common council ; and any acts 
 of the city done not in furtherance of proceed- 
 ings under the statute, but in pursuance of a 
 plan having in contemplation the saving and 
 continuance of the bridge, though involving its 
 removal temporarily, will constitute the ci^ a 
 trespasser. Ct. App., 1874, Buffalo and Ham- 
 burgh Turnpike Co. v. City of Buffalo, 58 N. Y. 
 (18 Sick.) 639. 
 
 BURIAL GROUND. 
 
 1. Appropriation to other purposes. A 
 
 tract of land conveyed to a municipal corpora- 
 tion " for the purpose of a burial ground," to be 
 
 held only for that special use, and which is there- 
 after used for that purpose, cannot afterward be 
 anpropriated by such corporation for any other 
 purpose. Sup. Ct. Sp. T., 1875, Rousseau v. City 
 of Troy, 49 How. 492. 
 
 2. One citizen having an ancestor buried there- 
 in cannot, hoivever, maintain an action to re- 
 strain such appropriation. lb. 
 
 BURGLARY. 
 See Criminal Law. 
 
 BY-LAW. 
 See CoEPOEATiONS. 
 
 CANALS. 
 
 1. Appeal from appraisers. The direction 
 of section 4, chapter 352, Laws of 1849, that 
 whenever the canal board shall, on appeal, re- 
 verse or modify the award of the canal apprais- 
 ers, they shall state in their resolution or order 
 the grounds of such reversal or modification, 
 and how much, if any, such award is increased 
 or diminished, is not directory merely, but posi- 
 tive and peremptory, and a compliance therewith 
 is essential to tlie validity of their decision. 
 Sup. Ct., 1872, People ex rel. Seymour v. Canal 
 Board, 7 Lans. 220. 
 
 2. Claims. The authority to hear and deter- 
 mine all claims against the State, given by 
 chapter 321, Laws of 1870, wliich required all 
 claims for damages which should have accrued 
 more than one year prior to the passage of the 
 act to be filed within one year for the date 
 thereof, cannot be considered as limited by sec- 
 tion 5, chapter 836, Laws of 1866, which re- 
 quired claims to be filed, within one year after 
 the injury ; but if it were, the objection must be 
 taken before the appraisers, otherwise it cannot 
 be reviewed on appeal or certiorari. Sup. Ct., 
 1876, People ex ret. Jermain v. Thayer, 4 Hun, 
 798. 
 
 3. Contractors' liability for negligence. 
 Under the Act of 1857 (ch. 105) canal contractors 
 occupy the position formerly occupied by super- 
 intendents of repairs, and are subject to the same 
 liability. Sup. Ct., 1871, Com qy v. Gale, 5Lans. 344. 
 
 4. They are under the same obligation to keep 
 canal bridges in repair as to make other repairs, 
 and are liable to individuals for injuries caused 
 by their neglect to do so. lb. 
 
 5. No such discretion is given to the contract- 
 or as will exonerate him from liability when he 
 fails to do his duty. lb. 
 
 6. If a canal bridge breaks down under a 
 wagon drawn with only ordinary speed for the 
 place, and not excessively loaded, that is con- 
 clusive of its unsafe condition ; and it is not 
 necessary, in order to render the contractor, in 
 whose district it is, liable for the damages re- 
 sulting therefrom, to show either that it was so 
 defective as to be apparently so to everybody, 
 or that notice of its unsafe condition )iad been 
 brought to the contractor or his agents. He 
 was bound to know its condition, if he could 
 have found out by reasonable examination and 
 tests. Sup. Ct., 1872, Stack v. Bangs, 6 Lans, 
 262. 
 
CARRIER. 
 
 115 
 
 7. The provisions of sections 8, 4, chapter 
 677, Laws of 1867, imposing upon canal commis- 
 sioners, engineers and superintendents, super- 
 visory duties as to the manner of making re- 
 pairs upon canals, were intended as additional 
 public safeguards to the obligation of the con- 
 tractor, and did not, in any way, affect the lia- 
 bility of a contractor for injuries resulting from 
 defects in a bridge included in his section, and 
 which his contract required him to keep in re- 
 pair. Ct. App., 1874, French v. Donaldson, 57 N. 
 T. (12 Sick.) 496 ; AfE'g S. C, 5 Lans. 293. S. 
 P., Conroy v. Giile, 5 Lans. 344. 
 
 8. It is, tlierefore, no defense to an action for 
 such injuries, tliat the contractor made all the 
 repairs deemed necessary and proper, and or- 
 dered by said officials, even though his contract 
 provides that the work " siiall be performed un- 
 der the immediate direction of the Canal Com- 
 missioners in charge, and at such times and 
 seasons, at such places in the work and in such 
 manner as the Canal Commissioners shall di- 
 rect." lb. 
 
 9. Bridges over canals which are connected 
 with streets and roads are clearly provided for 
 by the law, and come within the provisions of 
 contracts for repairs. lb. 
 
 10. A contract for canal repairs, made under 
 chapter 836, Laws of 1866, and containing the 
 clause required by section 9, of that act, obli- 
 gating the contractor to pay all damages to the 
 State or to any individual by reason of negli- 
 gence, default, etc., makes it the business of the 
 contractor to ascertain at his peril what ought 
 to be done, not only to put, but to keep the 
 bridge in repair. lb. 
 
 11. Extra ■work. Where charges involving 
 extra labor are made in the form, quantity, loca- 
 tion, or manner of doing work under a canal 
 contract, in accordance with chapter 377, Laws 
 of 1850. the canal board are not limited, in mak- 
 ing payment therefor, to the precise amount of 
 the preliminary estimate of the engineer, but, 
 where the prices for such work are not fixed by 
 the contract, may allow such sum in addition as 
 they may deem just. Ct. App., 1874, People 
 ex rel. Williams v. Dayton, 55 N. Y. (10 Sick.) 
 367. 
 
 12. Passenger boat. A canal boat, finished 
 off and principally used for the purpose of carry- 
 ing passengers, is a passenger boat, within the 
 meaning of the statute giving preference to such 
 boats (1 R. S. 245,) and is entitled to pass a 
 freight boat overtaken by it, and if the owner of 
 the latter boat endeavors to prevent the former 
 boat from passing, by shoving his boat over to 
 head it off, or needlessly runs into and injures 
 it, he is liable for the damages caused thereby. 
 It is not a question of negligence. Sup. Ct., 1873, 
 Houghton v. Walce, 64 Barb. 612. 
 
 13. Right to use waters. The Constitu- 
 tion has, ever since 1821, prohibited the legisla- 
 ture from selling or in any way disposing of any 
 portion of the canals of the State (Const, of 
 1821, Art. 7, § 10 ; Const, of 1846, Art. 7, § 6), 
 and the statutes (1 R. S. 248, § 177) forbid the 
 construction of any basin, &c., on any canal, 
 without the written permission of a canal com- 
 missioner, to be held only during his -pleasure. 
 Consequently, as no prescriptive right can be 
 obtained where no grant is allowed by law, an 
 individual who lias used the waters of the canal 
 for over forty years, by means of a private 
 basin, must he presumed to have taken orig- 
 inally under a canal commissioner, and subject 
 to those provisions of the law. Sup. Ct., 1871, 
 Burbank v. Fay, 5 Lans. 397. 
 
 CARRIER. 
 
 I. Of Goods 116 
 
 1. The contract. 
 
 2. Duty and liability of carrier. 
 
 3. Compensation and lien, 
 
 II. Op Animals 124 
 
 III. Of Passengers 124 
 
 1. The contract. 
 
 2. Liability for baggage. 
 
 2. Liability for injury to passengers. 
 
 I. Of Goods. 
 1. The contract. 
 
 1. Implied. The delivery of packages to a 
 carrier with the name and address of the con- 
 signee plainly marked thereon, is equivalent to 
 an express written or verbal request to trans- 
 port them according to such direction ; and tlieir 
 mere reception by the carrier for the purpose of 
 transportation, is sufficient to create the liability 
 of a common carrier for their safety. No bill of 
 lading is necessary for that purpose. N. X. 
 Supr. Ct., 1873, Shelton v. Merchants Despatch 
 Trans. Co., 36 N. Y. Supr. (4 J. & Sp.) 627. 
 
 2. Although authority to an agent to ship 
 goods by a carrier includes power to accept a 
 bill of lading containing stipulations for special 
 exemptions from liability, yet that power must 
 be exercised at the time of the slupmeni, and 
 if the agent at that time takes a receipt witliout 
 making any special contract of affreightment, 
 he has no power to make or accept one after- 
 ward, lb. 
 
 3. Receipt, Tvhen constitutes. The re- 
 ceipt delivered to the shipper of a package by 
 the agent of an express company, must, in the 
 absence of fraud or imposition, be deemed the 
 contract between the parties, and it is not ma- 
 terial whether the charges paid thereon were 
 more or less than the usual charge for carriage. 
 Sup. Ct., 1876, Huntington v. Dinsmore, 4 Hun, 66. 
 
 4. A person who delivers a package of money 
 to an express company to he carried by it, and 
 receives therefor a receipt containing conditions 
 and limitations of liability, but does not have 
 his attention called thereto, nor know of or as- 
 sent to them, is not bound thereby. Sup. Ct., 
 1874, Kirkland y. Dinsmore, 2 Hun, 46 ; Rev'd by 
 Ct. App. 
 
 5. If, from the nature of the business, the 
 manner in which it is transacted, and all the cir- 
 cumstances surrounding it, he knows, or has 
 reason to know, that he is receiving a contract 
 that will bind him, he will be bound whether he 
 reads it or not ; but where he may honestly and 
 in good faith suppose he is receiving a check, 
 token, receipt, or voucher of some kind, as evi- 
 dence of money paid, he will not be bound by a 
 contract attached thereto, forming nonecessary 
 part of it, to which his attention is not called, 
 and which, through ignorance, haste, or inad- 
 vertence, he neglects to read or assent to. lb. 
 
 6. Construction of. Where the receipt of 
 a common carrier for goods forwarded contained 
 a clause limiting its liability to $50 for " the 
 article " receipted for, which consisted of three 
 cases of drugs, separately addressed, but all in- 
 closed in one large package; with like address, — 
 Held, that, in case of loss, the recovery was 
 limited to $-50, on the entire package, and not 
 on each case separately. Ct. App., 1873, Wetzell 
 V. Dinsmoie 54 N. Y. (9 Sick.) 496 ; Rev'g S. C, 
 4 Daly, 193. 
 
 7. A clause in a bill of lading, exempting the 
 
116 
 
 CARRIER. 
 
 carrier from liability for " any act, negligence, 
 or default whatsoever of the pilot, master or 
 mariners," — Held, to relate to negligence occur- 
 ring while the goods were upon the ship in the 
 course of the voyage, but to be no protection 
 where the negligence occurred after they were 
 unladen and while they were in the custody of 
 the carrier before delivery. Ct. App., 1874, 
 Gleadell v. Thomson, 56 N. Y. (11 Sick.) 194. 
 
 8. Where a bill of lading provided that the 
 goods should be taken from alongside by the 
 consignee "immediately the vessel is ready to 
 discharge, or otherwise the privilege is reserved 
 to the vessel to land them on the pier, &o., at 
 the expense of such consignee, and at his risk of 
 fire, loss or injury." Held, that after such land- 
 ing the goods remained in the custody of the 
 carrier as such, subject to the modified respon- 
 sibility created by the contract, until after notice 
 was given to the consignee of their arrival, and 
 a reasonable time had elapsed for their removal ; 
 that the consignee meanwhile assumed the risk 
 of fire, loss or injury, but that the language 
 used did not exempt the carrier from liability 
 for an injury resulting from his own negligence, 
 lb. 
 
 9. Limitation of liability. The statute 
 (§ 36, ch. 140, Laws 1850 ; 8 Bdm. Stats. 634), 
 which makes it the duty of a railroad company 
 to receive and transport property " on due pay- 
 ment of the freight or fare legally authorized 
 therefor," does not prevent the company from 
 making such terms limiting its liability as it may 
 think proper, and charging freight in propor- 
 tion : and though the consignee is owner, a con- 
 signor with instructions to ship has authority to 
 bind him by entering into such a contract. Com. 
 App., 1872, Nelson v. Hudson River B. R. Co., 48 
 N. Y. (3 Sick.) 498. 
 
 10. The terms of a contract, to exempt a car- 
 rier from his common-law liability, must be clear 
 and unambiguous. No presumptions will be in- 
 dulged in favor of the exemption, and the rule 
 that the language, if ambiguous, is to be con- 
 strued against the party using it, should be 
 rigidly applied to such contracts. Ct. App., 
 1872, Edsatl v. Camden and Amboy R. R. and T. 
 Co., 50 N. Y. (6 Sick.) 661. 
 
 11. After the consummation of a special ver- 
 bal contract for the transportation of goods, and 
 a shipment of the goods thereunder, a carrier 
 cannot, by the mere delivery of a bill of lading 
 with printed conditions thereon, which the ship- 
 per does not read or assent to, limit or vary its 
 liability under the prior verbal contract; nor is 
 the shipper estopped by its receipt from showing 
 what the real contract was. Ct. App., 1871, 
 Bostwick V. Baltimore and Ohio R, R. Co.^ 45 N. 
 Y. (6 Hand,) 712; Bev'g S. C, 55 Barb. 137. 
 
 12. A shipper of cotton who has made a con- 
 tract for its transportation with the carrier's 
 agent, in which no limitation of responsibility 
 was suggested or agreed upon, is not bound by 
 a clause in the bills of lading afterward deliv- 
 ered to and forwarded by a clerk of his agent, 
 exempting the carrier from liability for a loss by 
 fire, to which neither the owner nor his agent 
 assented, and of which they had no knowledge. 
 N. Y. C. P., 1873, Lamb v. Camden %■ Amboy R. R. 
 Co., 4 Daly, 483. 
 
 13. Where parties wishing to buy oil wrote to 
 the general freight agent of a railroad company 
 for the lowest rates of freight on it, and received 
 an answer stating the rate but making no limita- 
 tion as to liability, and, having purchased, they 
 sent the agent's letter to the sellers, directing 
 them to send the oil by that road, — Held, that 
 
 the purchasers were not bound by any limita- 
 tion of the carrier's liability assented to by the 
 sellers, it being wholly unauthorized, and with- 
 out any consideration in reduction of freight or 
 otherwise. Sup. Ct., 1875, Wiggins v. Erie Rt/. 
 Co., 5 Hun, 186. ' 
 
 14. A notice at the head of a receipt or bill 
 of lading given by an express company, stating 
 that shippers must have the value of their 
 packages inserted in such receipt, otherwise the 
 company will not be responsible beyond fifty 
 dollars, is insufficient to limit its liability ; but 
 if a stipulation to the same effect is inserted in 
 the body of the receipt, and such receipt is ac- 
 cepted by the shipper, without making any 
 objections to its terms, or stating the value of 
 the property shipped, or informing the carrier 
 that he cannot readf'^the bill, that amovmts to a 
 contract limiting the carrier's liability to $50, 
 and the shipper is bound thereby. Sup. Ct., 
 1872, Fibel V. Livingston, 64 Barb. 179. S. P., 
 Belger v. Dinsmore, 51 N. Y. (6 Sick.) 166; 
 Kev'g S.C, 51 Barb. 69 ; 34 How. 421. 
 
 15. Where the shipper of goods by a particu- 
 lar carrier, having been furnished by such 
 carrier with his blank printed receipts, sent one 
 of such receipts to be signed by the carrier's 
 agent where the goods were delivered, the ship- 
 per must be presumed to have known the con- 
 tents of the receipt and to have assented to a 
 a clause therein restricting the carrier's liability 
 to fifty dollars unless the true value of the goods 
 was stated in the receipt. Sup. Ct., 1872, West- 
 cott V. Fargo, 6 Lans. 319 ; S. C, 63 Barb. 349. 
 
 16. Such restriction of liability will not be 
 construed to embrace a loss arising from the 
 careless and negligent acts of the carrier or of 
 his servants, but to have that effect such a loss 
 must be expressly provided for. lb. 
 
 17. Neither will a clause that the carrier shall 
 only be held liable as a forwarder embrace a 
 loss arising from his negligence. lb. 
 
 18. Neither will a stipulation in the receipt 
 exempting him from liability, unless the claim is 
 presented within thirty days from the accruing 
 of the cause of action, cover the case of a loss 
 by negligence ; nor does it make the presenta- 
 tion of the claim within that time a condition 
 precedent to the right of action. lb. 
 
 19. K the owner and shipper of goods, at the 
 time of delivering the same to an express com- 
 pany for transportation, procures its signature 
 to a blank receipt filled up by himself, contain- 
 ing the names of both parties, and a series of 
 conditions and clauses regulating the manner of 
 transportation and the liability of the company 
 in certain contingencies, that constitutes a 
 special contract between the parties, binding 
 upon both when acted under; and a clause 
 therein that the company shall not be liable for 
 any loss or damage by fire, will relieve it from 
 liability in case the goods shipped are burned 
 up while in transitu, without any fault or neglect 
 on the part of the companj'. N. Y. Supr. Ct., 
 Falkenan v. Fargo, 44 How. 325 ; S. C, 35 N. Y. 
 Supr. (3J. &Sp.) 332. 
 
 20. A seller of goods, who is directed by the 
 purchaser to ship them by a particular carrier, 
 and who has a particular manner or habit of 
 dealing with the carrier which is reasonable in 
 itself, such as taking a preliminary receipt for 
 the goods and afterward receiving a bill of 
 lading in a form limiting the carrier's liability 
 in respect to loss by fire, will bind the purchaser 
 by a contract entered into in accordance with 
 such usage. Ct. App., 1874, Shelton v. Merchants 
 Dispatch Trans. Co., 48 How. 257 ; S. C, 59 N. 
 
CARRIER. 
 
 117 
 
 Y. (14 Sick.) 258 ; Kev'g S. C, 36 N. Y. Supr. 
 (4J. &Sp.) 527. 
 
 21. — negligence, ■when exemption cov- 
 ers. A stipulation in a receipt given by a car- 
 rier for goods received to be delivered to a 
 consignee in Chicago, that such carrier " will not 
 be responsible for loss or damage to the goods," 
 beyond a specified amount, will not limit the 
 recovery in an action for negligence in failing to 
 deliver the goods at Chicago within a reasonable 
 time. Sup. Ct., 1874, Vroman v. Am. Mer. Un. 
 Express Co., 2 Hun, 512. 
 
 22. A bill of lading, which releases the carrier 
 from liability for damage or loss "from, or by, 
 fire or explosion of any kind," does not relieve 
 it from liability for loss by a fire resulting from 
 its own negligence. Ct. App., 1870, Steinwig v. 
 Erie Railway Co., 43 N. Y. (4 Hand,) 123. 
 
 23. Where fire resulted from sparks from the 
 locomotive, — Held, that a failure to use any ap- 
 paratus known and in use, which would have 
 prevented the emission of sparks, was negli- 
 gence for which the carrier would be liable ; but 
 it was not bound to use every possible preven- 
 tion suggested by the highest scientific skill, or 
 to adopt an untried machine. lb. 
 
 24. A clause in a bill of lading, exempting the 
 carrier from liability for loss by fire, does not 
 exonerate it from liability for loss by a fire 
 caused by the negligence of its employees ; but 
 the burden of showing such negligence is upon 
 the shipper, and the carrier need not prove 
 affirmatively that it was free from negligence. 
 Feckhau, J., dissenting, holds that the burden 
 of proof rests upon the carrier. Ct. App., 1871, 
 Lamb V. Camden 6f Amboy R. R. and T. Co., 46 N. 
 Y. (1 Sick.) 271 ; Eev'g S. C, 2 Daly, 454. 
 
 25. A clause in an express company's receipt, 
 exempting it from liability for losses arising 
 from certain specified causes, unless specially 
 insured by it, and from a claim for more than 
 fifty dollars in case the value of the property is 
 not stated by the shipper, does not limit its 
 liability for a loss occasioned by its own or its 
 servant's negligence or want of due care of the 
 property. N. Y. Supr. Ct., 1874, Magnin v. 
 Dinsmare, 38 N. Y. Supr. (6 J. & Sp.) 248. 
 
 26. But in order to recover more than fifty 
 dollars, in such a case, the shipper must show 
 the negligence of the carrier affirmatively, and 
 it will not be presumed from the fact of non- 
 delivery or the loss alone. lb. 
 
 27. Fraud, concealment or imposition on the 
 part of the shipper towards the carrier, in 
 respect to the character or value of the goods 
 shipped, whether effected positively by word or 
 deed, or negatively by omission to perform a 
 duty incumbent on him, will debar the shipper 
 from a recovery against the carrier. lb. 
 
 28. A common carrier, such as an express 
 company may contract for exemption from 
 liability for losses occurring through his negli- 
 gence ; but his contract will not be deemed to 
 exempt losses from that cause, unless that be 
 expressly stipulated. Ct. App., 1874, Magnin v. 
 Dinsmare, 56 N. Y. (11 Sick.) 168 ; Eev'g S. C, 
 35 N. Y. Supr. (3 J. & Sp.) 182. 
 
 29. A stipulation in a receipt for goods, given 
 by an express company, that the company shall 
 not be liable " for any loss or damage arising 
 from the dangers of railroad, ocean, steam or 
 river navigation, leakage, fire, or from any cause 
 whatever, unless specially insured by them and 
 so specified in their receipt," — Held, to exclude 
 all liability resulting from the dangers enumer- 
 ated, save in case of insurance. lb. 
 
 80. A clause, following and connected with 
 
 the former clause, as follows, " and if the value 
 of the property above described is not stated by 
 the shipper, the holder hereof will not demand 
 of the A E Co. a sum exceeding fifty dollars 
 for the loss, or detention or damage to the 
 property," — Held, to relate to other grounds of 
 claim not included in the first, but not to exempt 
 the company from liability for losses occurring 
 through its negligence. lb. 
 
 31. A corporation, though it be a common 
 carrier, may by contract exempt itself from 
 liability for a loss occurring through the fault, 
 negligence, or wilful and criminal acts of its 
 servants, agents or officers, other than the 
 directors, and a contract to that effect will not 
 be held void as being contrary to public policy. 
 N. Y. Supr. Ct., 1871, Knell v. U. S. and Brazil 
 Steamship Co., 33 N. Y. Supr. (1 J. & Sp.) 423. 
 
 32. The carrier has the right to fix the rates 
 at which he will carry goods of different classes, 
 subject to all the responsibilities imposed upon 
 him by law, and, if the shipper desires his goods 
 to be carried at lower rates, may properly insist 
 upon an exemption from some of those respon- 
 sibilities ; but, it seems, the option of exempting 
 him should rest with the shipper, and he should 
 have a reasonable opportunity to exercise it un- 
 derstandingly. lb. 
 
 33. When a contract is filled out by the ship- 
 per's own agent, he will be presumed to have 
 entered into it voluntarily, and with full knowl- 
 edge of all its provisions, and will be bound by 
 it. lb. 
 
 34. General words in a carrier's contract, to 
 which effect cannot otherwise be given, such as, 
 " It is expressly understood that the articles 
 named in the bill of lading shall be at the risk 
 of the owner, shipper, or consignee thereof, 
 while on the pier or wharf awaiting shipment," 
 will not exempt the carrier from liability for 
 loss arising from the negligence, fraud or felony 
 of its employes. lb. 
 
 35. A carrier cannot take advantage of a 
 clause requiring claims for loss to be made at 
 the office of its agent at the port of discharge 
 within a limited time, if it has no agent at the 
 port to which the goods lost were shipped. lb. 
 
 86. A release given by a person at the time of 
 shipping quince trees, whereby he releases the 
 carrier from all liability for " damage to per- 
 ishable property of all kinds occasioned by de- 
 lays from any cause or change of weather, . . 
 or loss or injury by fire or water, heat or cold," 
 covers and releases all liability for damage 
 caused by the freezing of the trees through a 
 sudden change of weather, although the carrier 
 was guilty of negligence. Sup. Ct., 1875, iVi'cA- 
 olas V. N. Y. Cent, and Hud. Riv. R. R. Co., 4 
 Hun, 827. 
 
 37. Through contract. The receipt by a 
 carrier for transportation of goods addressed to 
 a point beyond its line, and of the price for the 
 entire distance, with an agreement to deliver 
 them at the point of destination for that price, 
 is a through contract, and binds the carrier for 
 their transportation to that point. Sup. Ct., 
 1871, Condict v. Grand Trunk Railway Co., 4 
 Lans. 106; AfFd S. C, 54 N. Y. (9 Sick.) 500. 
 
 88. It is the duty of the carrier, under such 
 contract, to transport the goods to their destina- 
 tion within a reasonable time, and it is respon- 
 sible for damage caused by delays which are 
 attributable to its own fault or negligence, 
 lb. 
 
 39. It is no excuse for the carrier's delay m 
 forwarding the goods from its terminus, that the 
 connecting roads refused to carry them through 
 
118 
 
 CARRIER. 
 
 without an advance upon the rates previously 
 charged for such services. lb. 
 
 40. A provision in tlie contract that the car- 
 rier should forward the goods bej'ond its own 
 line, " by public carrier or otherwise, as oppor- 
 tunity may offer, without any claim for delay 
 against the company for want of opportunity to 
 forward them," and that its liability sliould 
 cease when connecting carriers " shall have re- 
 ceived notice that tlie copipany is prepared to 
 deliver them the goods for further conveyance," 
 does not relieve the contracting carrier from 
 liability for a loss occasioned by a delay under 
 such circumstances. lb. 
 
 41. Neither does a clause therein, " that all 
 property contracted for at a through rate, or 
 otherwise, to places from or beyond the line of 
 its railway, if shipped by water, shall be entire- 
 ly at the risk of the owner from fire," &c., relieve 
 it from liability for a loss by fire while delayed 
 awaiting transportation by water, by reason of 
 the carriers not having provided adequate facil- 
 ities therefor, even if it liad the riglit to substi- 
 tute water for rail transportation. lb. 
 
 42. An application to the agent of a carrier 
 doing business in other States, at its office in 
 New York, to know on what terms such car- 
 rier will transport certain merchandise to a 
 point beyond its line, and the agent's answer 
 stating the rate of cliarges, and directing how 
 the goods shall be marked and where delivered 
 to a connecting line, cannot be considered as 
 constituting an agreement for the transportation 
 of the property by sucli carrier to its point of 
 destination ; nor can tlie delivery of tlie proper- 
 ty eighteen days afterward to the connecting 
 carrier at the place designated, and marked as 
 directed, be considered as amounting to an ac- 
 ceptance of the offer made by the agent to carry 
 on the proposed, terms ; but a bill of lading 
 given on the delivery of the goods, exempting 
 the carrier from liability . for damage, except 
 that happening while tlie goods are in its pos- 
 session, will be considered as containing the 
 whole contract, and measuring the carrier's lia- 
 bility. Sup. Ct., 1871, Riclcetts v. Baltimore and 
 Ohio R. R. Co., 4 Lans. 446 ; S. C, 61 Barb. 19. 
 
 48. A contract entered into between an ownei' 
 and the railroad company wliich first receives 
 from him for transportation goods marked for a 
 place beyond the terminus of such road, where- 
 by such company agrees to carry them for a 
 specified price to its terminal station, there to 
 be delivered to another railroad as a connecting 
 line on its route to its final destination, and such 
 owner, in consideration of their carriage for a 
 price less than the usual charge to that station, 
 agrees to assume the risk of fire and other con- 
 tingencies while in transit, is not a through con- 
 tract' of which the carriers subsequently receiv- 
 ing such freight can avail themselves as limiting 
 their liability, even though drawn upon a gen- 
 eral printed form which by its terms would 
 make all such stipulations applicable to all the 
 carriers over whose lines the goods might pass, 
 Ct. App., 1872, Babcock v. Lake Shore and Mich. 
 Southern Ry. Co., 43 How. 317 ; S. C, 49 N. Y. 
 (4 Sick.) 491. 
 
 44. The written portions of the contract must 
 control, and only so much of the printed mat- 
 ter in the blank form used as is consistent 
 therewith be held of any effect, and all that is 
 incompatible with or inappropriate to the intent 
 of the parties, as indicated by the written por- 
 tions be rejected. lb. 
 
 45. Under such contract, the first carrier has 
 no authority to enter into any special contract 
 
 on behalf of the consignor with the next car- 
 rier limiting or restricting the liability of the 
 latter ; but 'the whole duty of the first carrier 
 terminates with the delivery of the goods to the 
 second, and the common-law liability of the lat- 
 ter and of subsequent carriers attaches at once, 
 by necessary implication, upon the receipt there- 
 of, and the carrier in whose possession they 
 may be when destroyed by fire is liable for 
 them. lb. 
 
 46. Although a contract exists between con- 
 necting carriers for the reciprocal transporta- 
 tion of freight over their respective lines and 
 division of the receipts, yet where one of them 
 contracts merely to carry and deliver to con- 
 signees at the terminus of its line goods marked 
 for a point on the line of the connecting car- 
 rier, the latter is not entitled to the benefit of a 
 provision in the bill of lading exempting the 
 first carrier from liability for loss by fire and 
 other ordinary liabilities, even though the ad- 
 dress of consignees at the point of final destina- 
 tion and the price for the entire carriage is 
 marked in the margin of the bill, and suchprice 
 has been paid. Sup. Ct., 1871, jEtna Ins. Co. v. 
 IFAee/er, 5 Lans. 480; Aff'd, S. C, 49 N. Y. (4 
 Sick.) 616. 
 
 47. Where carriers, between whom such an 
 agreement exists, have, at the point of connec- 
 tion, a warehouse used in common for the trans- 
 fer of freight from one line to the other, and 
 storage while awaiting removal, and have a com- 
 mon agent for handling it, whose wages are 
 paid in part by each, a delivery of freight at 
 the warehouse by one of such carriers, destined 
 to pass over the line of the other, with notice to 
 the latter of its arrival and ultimate destination, 
 puts it in the possession of the latter carrier, and 
 imposes on him the duties and liabilities of a 
 common carrier in relation thereto. lb. 
 
 48. Where a railroad company, contracting to 
 carry goods beyond the terminus of its line, by 
 a clause in its bill of lading, exempts itself from 
 liability for loss " by unavoidable accidents, or 
 fire in depots," such exemption will, in the ab- 
 sence of evidence of a new contract, be held to 
 extend to any connecting carrier who receives 
 the goods, and shares the freight. Ct. App., 
 1871, Magheev. Camden and Amboy R. R. Co., 
 45 N. Y. (6 Hand,) 514. 
 
 49. Aplace wliere the carrier is accustomed 
 to receive, deposit and keep ready for transpor- 
 tation or delivery merchandise carried by it, is 
 a depot, within the meaning of such a clause, 
 lb. 
 
 2. Duty and liability of carrier. 
 
 50. Duty as to mode of transportation. 
 
 An express company which gives a receipt for 
 goods to be forwarded by a particular steamer is 
 bound to forward them by that steamer, and 
 cannot upon the failure of such steamer to go, 
 forward them " by any other usual, customary 
 and proper mode of conveyance. Com. App., 
 1871, Goodrich v. Thompson, 44 N. Y. (6 Hand,) 
 324 ; Aff'g, S. C, 4 Kob. 75. 
 
 51. Upon the failure of such vessel to go, it 
 is their duty to notify the shippers and await 
 their instructions ; and if, instead, they forward 
 the goods by some other ship, they will be liable 
 for all the consequences of the unauthorized act. 
 lb. 
 
 52. The shippers do not, by such act, lose 
 their property in the goods forwarded, and the 
 receipt by them of insurance money thereon, in 
 case of a loss, will not constitute a ratification 
 of the shipment. lb. 
 
CARRIER. 
 
 119 
 
 53. A carrier contracting to carry goods by 
 " all rail," is bound to conform to the contract 
 so far as practicable ; and a transportation in 
 any other mode, where conformity is practi- 
 cable, even for a few miles, will render it 
 liable as insurer, and it cannot avail itself 
 of any exception in the contract. Ct. App., 
 i.811, Maghee v. Camden and Amhoy B. R. Co., 45 
 N. Y. (6 Hand,) 514. S. P., Bostwick v. Balti- 
 more and Ohio R. R. Co., id. 712. 
 
 54. As a general rule, a carrier undertaking to 
 forward goods beyond the end of his route is 
 boimd to follow the precise instructions of the 
 consignor, or to suffer the risk of a deviation 
 therefrom. But this is when, in the absence of 
 express stipulations, the instructions become a 
 part of the contract ; and if the carrier stipu- 
 lates in writing that he may forward by any 
 customary mode which is safe and prudent, 
 prior or contemporaneous oral instructions can- 
 not be permitted to control such contract, and 
 impose upon him a different duty. Ct. App., 
 1874, Hinckley v. New York Central and Hudson 
 Biv. R. R. Co., 56 N. Y. (11 Sick.) 429. 
 
 55. Collection. Where goods were de- 
 livered to an express company at New York, 
 whose Une terminated at Boston, but there con- 
 nected with Turner's Express, marked "A King, 
 Clifton House, Windsor, N. S., C. O. D., $375, 
 from Turner's Express, Boston, Mass.," — Held, 
 that the contract was to collect that amount 
 from Turner's Express on delivery to it, not to 
 collect, tlirough that express, from the con- 
 signee ; and if it failed to make such collection 
 the first carrier was liable for the amount. Ct. 
 App., 1873, Collender v. Dinsmore, 65 N. Y. (10 
 Sick.) 200 ; Kev'g S C, 64 Barb. 457. 
 
 66. An express company to which a draft is 
 delivered should, in case of its non-payment, 
 give duo notice thereof to the person from whom 
 it was received, otherwise tlie company will be 
 liable to him for all damages sustained by reason 
 of its neglect so to do. N. Y. C. P., 1871, Lienan 
 V. Dinsmore, 41 How. 97 ; S. C, 10 Abb. N. S 
 209 ; 3 Daly, 365. 
 
 57. Where the evidence shows that the com- 
 pany used due diligence to collect the draft, and 
 failed, the plaintiff must show that there was at 
 least a reasonable probability tliat he could have 
 collected the amount of the draft, if properly 
 notified of its non-payment, before he can recover 
 the full amount thereof from the company. lb. 
 
 58. Where a note was delivered to the agent 
 of an express company, with a request that it be 
 taken to the place of residence of the maker and 
 presented to him for payment, and if not paid, 
 that suit be brought at once, and such agent im- 
 mediately indorsed on the envelope directions in 
 accordance with the request, the holder being ig- 
 norant that the company's line did not extend to 
 the place riamed,^-^eZrf, that the contract was 
 not merely to forward, but to carry, present, and 
 if necessary sue the note, and the company was 
 liable for any damages resulting from the delin- 
 quency of another company by whose line it was 
 forwarded. Com. App., 1873, Palmer v. Holland, 
 51 N. Y. (6 Sick.) 416. 
 
 59. Delivery. The rules governing the de- 
 livery of goods by a common carrier at the place 
 of destination, are these : If the consignee is 
 present upon their arrival, he must take them 
 without unreasonable delay ; if he ie not present, 
 but lives in the vicinity, the carrier must notify 
 him of their arrival and he has then a reasonable 
 time to take and remove them ; if he be absent, 
 unknown, or cannot be found, then the carrier 
 can store them in its freight house, and, if the 
 
 consignee fails to call for them in a reasonable 
 time, its liability as insurer ceases. Com. App., 
 1871, Fenner v. Buffalo and State Line R. R. Co., 
 44 N. Y. (5 Hand,) 505; Rev'g S C, 46 Barb., 
 103. 
 
 60. A raiboad company which delivers goods 
 at the place to which they are consigned, is not 
 liable as an intermediate carrier but as a carrier 
 to the point of destination, although the owner 
 may have intended them for further transporta- 
 tion, lb. 
 
 61. Where, upon the arrival of goods at their 
 destination, and without any refusal or unwil- 
 lingness to deliver at once, they were, by agree- 
 ment and for the mutual convenience of the 
 carrier and consignee, stored in the freight house 
 of the former, over night, and there burned, — 
 Held, that the liability as carrier had terminated, 
 and no recovery could be had for the loss. lb. 
 
 62. A common carrier is bound to use reasona- 
 ble diligence and despatch in the transportation 
 and delivery of freight, and is liable for any de- 
 preciation in value resulting from its neglect. 
 Ct. App., 1872, Zinn v. New Jersey Steamboat 
 Co., 49 N. Y. (4 Sick.) 442. 
 
 63. Where the consignee is unknown to the 
 carrier a due effort to find him is a condition 
 precedent to a right to warehouse the goods, and 
 if such effort is not made, the carrier is liable 
 for the consequences of its neglect. lb. 
 
 64. In the absence of a special custom or local 
 contract to the contrary, a common carrier by 
 land is bound to m.ake a personal delivery to the 
 consignee, if he is known or can be found. N. 
 Y. Supr. Ct., 1870, Mierson v. Hope, 2 Sweeny, 
 661. 
 
 65. A common carrier by water is not bound 
 to deliver goods to the consignee personally ; 
 but, by usage, a delivery upon a wharf at the 
 port of destination, after notice to the consignee, 
 is suflScient. Ct. App., 1873, McAndrew v. Whit- 
 lock, 52 N. Y. (7 Sick.) 40; Aff'g S. C, 2 
 Sweeny, 623. 
 
 66. If the goods are landed without notice, the 
 consignee is still entitled to notice before tlie 
 carrier will be discharged ; and, in either case, 
 the notice should be reasonable, so as under all 
 circumstances to enable the consignee to remove 
 and secure them. lb. 
 
 67. Wliere due notice was given a consignee 
 of the arrival of goods, and, by an arrangement 
 between him and the carrier, they were to be 
 discharged on a day named if it proved fine, and 
 on that day it rained until 9 a. m., and tlien 
 cleared up until 2:30 p. m., when it again rained 
 and so continued for the remainder of the day 
 and night ; but the carrier commenced to dis- 
 charge the goods at 9 A. M., and at noon notified 
 the consignee thereof, who was unable by the 
 utmost diligence to secure the whole from dam- 
 age by the rain, — Held, that the notice was not 
 reasonable and the carrier was liable. lb. 
 
 68. The fact that the goods were landed with 
 the knowledge and assent of a custom-'house 
 officer, on board the ship in discharge of his ofli- 
 cial duty, will not relieve the carrier from lia- ' 
 bility. lb. 
 
 69. Whether bound to make personal delivery 
 of the goods or not, in no case will a carrier be 
 excused from giving notice to the consignee of 
 their arrival, fl he know or have the means of 
 knowing who such consignee is. N. Y. Supr. 
 Ct., 1870, Mierson v. Hope, 2 Sweeny, 561. 
 
 70. When a carrier is informed of the name 
 and address of the consignee, and does not imme- 
 diately upon the arrival of the goods at their 
 place of destination, deliver the same or give 
 
120 
 
 CARRIER. 
 
 notice to the latter of their arrival, his liability 
 becomes absolute for a loss thereafter occurring 
 from any cause whatever, lb. 
 
 71. Where it has been the long continued cus- 
 tom of a manufacturing company to ship the 
 products of its factory each day to its agent by 
 a particular carrier, and of such agent to send 
 daily to the wharf to receive the shipments, a 
 specific notice from the carrier of the arrival of 
 each parcel is not necessary, but his duty is per- 
 formed when he has landed the goods at the 
 accustomed place and the consignee has had a 
 reasonable time to remove them. Ct. App., 
 1872, J, Russell Manufacturing Co. v. N. H. Steam- 
 boat Co., 50 N. y. (5 Sick.) 121 ; N. S. 52 N. Y. (7 
 Sick.) 657. 
 
 72. But, if it has also been the usage of the 
 consignee not to send for or receive or remove 
 goods arriving on a certain holiday, the carrier 
 can relieve himself only by giving notice and a 
 reasonable opportunity to the consignee to re- 
 move ; otherwise, such consignee will be entitled 
 to a reasonable time for such removal after that 
 day. lb. 
 
 73. Under a provision in a bill of lading as 
 follows : " The goods to be taken from alongside 
 by the consignee immediately the vessel is ready 
 to discharge, or, otherwise, they will be landed 
 by the master, and deposited at the expense of 
 tlie consignee, and at his risk of fire, loss or in- 
 jury, in the warehouse provided for that purpose 
 on the steamship wharf at Jersey City, or sent 
 to the public stores, " &c., the carrier is bound 
 to keep the goods safely, and deposit them in a 
 warehouse or a public store, in case they are not 
 taken from alongside by the owner ; and if, after 
 landing the goods from the vessel and placing 
 them alongside ready for delivery to the con- 
 signee, they are, by mistake, delivered by its 
 employees to a swindler or thief who takes them 
 away, the carrier is liable for the loss. N. Y. 
 Supr. Ct., 1873, Coilins v. Bums, 36 N. Y. 
 Supr. (4 J. & Sp.) 518. 
 
 ■ 74. Under such contract the goods remain in 
 the possession and under the control of the car- 
 rier until delivered or stored. lb. 
 
 76. Liability for coin package. Where 
 the external appearance of a package contain- 
 ing coin is in harmony with its contents, and, in 
 connection with its size and weight, indicates 
 clearly that it is not one containing ordinary 
 merchandise, and no misstatement is made by 
 any one or to any one in regard to it, the carrier 
 receiving it without inquiry as to its value, or 
 any special contract limiting his common-law 
 liability, is liable for its value, if lost while in 
 his possession, unless by the act of God or of 
 the public enemy. N. Y. Supr. Ct., 1873, 
 Gorham Man/. Co. v. Fargo, 45 How. 90 ; S. C, 
 35 N Y. Supr. (3 J. & Sp.) 434. 
 
 76. In such a case, the consignor is not bound 
 to volunteer any information to the carrier, or 
 make any statement whatever, unless he is asked 
 by the carrier, but it is for the latter to make 
 inquiry as to tlie value of the package delivered 
 to him, and the owner must answer at his peril ; 
 and if he does not make such inquiries, but 
 receives it for such fees for transportation as is 
 asked with reference to its bulk, weight or 
 external appearance, he is responsible in case of 
 its loss, whatever may be its value. lb. 
 
 77. Delay in transporting. Where a 
 carrier negligently delays the transportation of 
 mercliandise delivered to it for that purpose, and 
 during such delay the market value tliereof falls, 
 the carrier is liable for the difference in its 
 value at the time and place it ought to have 
 
 been delivered and at the time of its actual 
 delivery. Ct. App., 1871, Ward v. New York 
 Central R.R. Co., 47 N. Y. (2 Sick.) 29. 
 
 78. A carrier by railroad contracting to carry 
 freight by its own car, but partly on the road of 
 another company, is not responsible for a delay 
 caused by the breaking down of its car on the 
 road of such other company. Sup. Cti, 1875, 
 Livingston v. N. Y. Cent. ^ Hud. Riv. R. R. Co., 
 5 Hun, 562. 
 
 79. A carrier of freight has no right to dis- 
 criminate, as between owners of freight, by pur- 
 posely delaying that belonging to one "in order 
 to give preference to that of anotlier, contrary 
 to the ordinary course of business. So, held, 
 where, just before the expiration of the recipro- 
 city treaty, goods which would become dutiable 
 were given the preference in Canada, and others 
 were delayed or stopped on the way. Sup. Ct., 
 1870, Keeney v. Chrand Trunk Ry. Co., 59 Barb. 
 104 ; Afe-d S. C, 47 N. Y. (2 Sick.) 525. 
 
 80. A railroad company which receives goods 
 for transportation between points ordinarily 
 traversed in three days, under a mere oral 
 agreement for their carriage, is bound to deliver 
 them at the place of destination within a reason- 
 able time after their receipt ; and a delay for 
 more than thirty days to deliver such goods, 
 during two-thirds of which time its cars are 
 running with ordinary regularity between the 
 two points, renders the carrier liable for the 
 damages thereby caused to the shipper. Sup. 
 Ct., 1872, Coffin V. N. Y. Cent. R. R. Co., 64 
 Barb. 379. 
 
 81. The receipt of shipping bills containing 
 restrictions upon the carrier's liability, by one of 
 the shippers, on the third day after the ship- 
 ment, as he was about starting to look after the 
 goods at their place of destination, cannot be 
 considered as implying any change or modifica^ 
 tion of the original contract for transportation, 
 unless it distinctly appears that the contents of 
 such bills were fully known, and were assented 
 to by the shippers. lb. 
 
 82. Guaranty of quantity. A carrier who 
 delivers a bill of lading containing the words 
 ■' quantity guaranteed " is responsible to the 
 sliippers for the whole quantity specified, and 
 cannot evade the responsibility hy showing that 
 he delivered all that he received. Com. App., 
 1873, Bissel v. Campbell, 54 N. Y. (9 Sick.) 353. 
 
 83. Loss or injury on connecting lines. 
 The receipt by a carrier of goods marked for a 
 place beyond the terminus of its route, does not 
 import a contract to carry them to their final 
 destination ; but, in the absence of a special con- 
 tract and of a partnership between the connect- 
 ing lines, it is bound only to deliver them at the 
 end of its line, according to the established usage 
 of its business. Ct. App., 1871, Root v. Great 
 Western R. R Co., 45 N. Y. (6 Hand,) 524; 
 Eev'g S. C, 2 Lans. 199. 
 
 84. The statute of 1847 (oh. 270, § 9) does not 
 change this rule, but was only intended to de- 
 clare the law as it before existed. Chukch, Ch. 
 J., and Gkovkr, J., dissent. lb. 
 
 85. That statute applies only to the company 
 which, in the first instance, receives the goods 
 from the sliipper, and does not refer to the inter- 
 mediate carriers, into whose hands the goods 
 may afterward come in the course of their jour- 
 ney. Peckham, J., dissents. lb. 
 
 86. A railroad company receiving goods for 
 transportation, marked for a place beyond the 
 terminus of its road, is liable therefor as carrier 
 until it has given notice of their arrival to the 
 next carrier, and a reasonable time has elapsed 
 
CARRIER. 
 
 121 
 
 for the latter to take them away. Ct. App., 
 1871, Mills v. Michigan Central R. R. Co., -45 
 N. Y. (6 Hand,) 622. 
 
 87. /( seems that, where it has heen the uni- 
 form custom of a company, in such cases, to 
 deposit written notice of the presence of freight 
 in a box appropriated to the succeeding carrier, 
 and to which he has constant access, such deposit 
 will be sufficient notice, although the shipper 
 was ignorant of such custom. lb. 
 
 88. But where the next carrier is a propeller 
 line, and the custom Is to send freight by the 
 first vessel that can take it after its arrival, the 
 reasonable time, the lapse of which will dis- 
 charge the first carrier, does not expire until 
 there is a vessel, which, in the ordinary course 
 of business, can take the goods away. lb. 
 
 89. A clause in the charter of such company, 
 granting it the right to cliarge storage on goods 
 remaining in its depots after notice to the con- 
 signee, and In the same connection exempting it 
 from liability except as warehouseman for goods 
 awaiting delivery, — Seld, to extend tlie exemp- 
 tion only to goods which have reached their final 
 destination and there await deUvery, and as to 
 which it has exercised the right to charge for 
 storage, and not to apply to goods on their way 
 from its charge to that of a connecting carrier. 
 lb. 
 
 90. A railroad company which receives and 
 agrees to carry goods to a place beyond the ter- 
 minus of Its own road, under a general agree- 
 ment. Independent of any statute, is liable if 
 such goods are destroyed by fire while passing 
 over a connecting road on the route to the place 
 of delivery. Sup. Ct., 1872, King v. Macon and 
 Western R. R. Co., 62 Barb., 160. 
 
 91. The provision of section 2055 of the Code 
 of Georgia, that " when there are several con- 
 necting railroads, under different companies, 
 and the goods are intended to be transported 
 over more than one railroad, each company shall 
 be responsible only to Its own terminus, and 
 until delivery to the connecting road, the last 
 company which has received the goods as in 
 good order shall be responsible to the consignee 
 for any damage, open or concealed, done to the 
 goods, and such companies shall settle among 
 themselves the question of ultimate liability," 
 was evidently Intended to and does limit the 
 liability of a railroad company to its own termi- 
 nus only where the contract is a general one, 
 depending on delivery of goods to be transported 
 with directions to carry beyond such terminus, 
 lb. 
 
 92. That section does not affect the liability 
 of companies beyond the bounds of the State, 
 nor does it prevent a corporation doing business 
 in the State binding itself by a special contract ; 
 but section 2041 of that Code expressly permits 
 such a corporation to bind itjielf by an express 
 contract. lb. 
 
 93. A written receipt given by the agent of 
 such a corporation, on the delivery of cotton for 
 transportation, by which it agrees to transport 
 the same to New York, limiting its habllity for 
 loss by fire to a burning on the cars, is an 
 express contract, and binding on the company ; 
 and it is liable for a loss by fire, not merely 
 while the cotton is on its own cars, but while in 
 possession of another company to which it has 
 delivered the same for transportation. lb. 
 
 94. A carrier from Albany to Buffalo, which 
 has associated with other carriers to form a fast 
 freight line, known as the " White Line," be- 
 tween New York and St. Lpuis, goods for trans- 
 portation being received on its line at its termin- 
 
 al points, is not liable for the loss of fruit trees 
 shipped at Rochester under a contract with an 
 agent of the White Line, marked for " Leaven- 
 worth, Kansas, care of White Line, Buffalo," 
 and for which receipts were given by which 
 such carrier agrees to " transport the property 
 to its warehouse at Buffalo ready to be delivered 
 to the party entitled to the same," and Is not to 
 be held liable for loss or damage by any other 
 carrier " after the same has been loaded, ship- 
 ped or sent from the company's warehouse 
 aforesaid," if the injury was caused by negli- 
 gence on a railroad between St. Louis and Leav- 
 enworth. Ct. App., 1874, Invin v. N. Y. Cent. 
 SrHud. Riv. R. R. Co., 59 N. Y. (14 Sick.) 653. 
 
 95. Loss by fire. Where a buyer of goods 
 orders them to be sent to him by a particular 
 carrier, and the consignor ships them by a dif- 
 ferent carrier, the title does not pass to the con- 
 signee by such delivery ; and if such carrier de- 
 posits the goods at the end of his route, refusing 
 to deliver them to the connecting carrier, be- 
 cause the latter will not receive them except sub- 
 ject to greater exemption from liability than 
 was stipulated for in the original contract of 
 shipment, notice should be given to and instruc- 
 tions sought from the consignor, otherwise, in 
 case of loss by fire while so deposited, the carrier 
 who received them will be liable to the consign- ' 
 or for such loss. N. Y. C. P., 1874, Rawson v. 
 Holland. 47 How. 292 ; Aff'd S. C, 59 N. Y. (14 
 Sick.) 611. 
 
 96. A carrier is responsible as such only when 
 goods are delivered to and accepted by him for 
 immediate transportation in the usual course of 
 business. If delivered awaiting further orders 
 from the shipper before carriage, he is, while 
 they are so in his custody, responsible merely as 
 warehouseman. Ct. App., 1875, O'Neill v. N. Y. 
 Cent. Sr Hud. Riv. R. R. Co., 60 N. Y. (15 Sick..) 
 138. 
 
 97. Where casks were filled with cider by the 
 seller and delivered at a railroad station, with 
 verbal notice that they were for a purchaser liv- 
 ing at another station, but without any marks 
 thereon to indicate their destination, or any in- 
 structions as to shipment, and were destroyed 
 by fire in the station, — Held, that the carrier 
 was not liable for the loss. Ibi 
 
 98. Where a transportation company con- 
 tracted to carry grain to 0, the terminus of the 
 company's line, marked to a point beyond, "care 
 of D C B agent, 0," such company hav- 
 ing an elevator at O, which it used to receive 
 and forward grain, and also used as a warehouse 
 for storage, and also having the control of a 
 railroad on the route over which such grain must 
 be forwarded from 0, and D C B being its 
 agent at O and such grain having been received 
 into the elevator, was there destroyed by fire, 
 without negligence on the part of the carrier, — 
 Held, that by the direction " care of D C B, 
 agent," a delivery to the company as common 
 carriers was intended, and that their receipt and 
 possession of the grain was as carriers and not 
 as warehousemen, and they were liable for the 
 loss. Sup. Ct., 1872, Rogers v. Wheeler, 6 Lans. 
 420 ; Aff'd S. C, 52 N. Y. (7 Sick.) 262. 
 
 99. A custom of the consignees to bag their 
 grain at a certain point on the route, as a mat- 
 ter of convenience to themselves, and not upon 
 any understanding between them and the car- 
 riers, does not affect the liability of the latter, 
 lb. 
 
 100. Neither can it be affected by letters from 
 the consignees to the carrier's agent, directing 
 the immediate forwarding of part of a former 
 
122 
 
 CARRIER. 
 
 shipment of grain, but not giving any directions 
 as to tlie remainder, since they do not show any 
 understanding that the grain in question should 
 be stored. lb. 
 
 101. The supposition of D C B the carrier's 
 agent, that lie was acting as agent for the con- 
 signee in receiving and storing the grain, cannot 
 affect the liability of the carriers, when his only 
 authority for so doing was derived from the 
 bills of lading by which it was consigned to his 
 care. lb. 
 
 102. An express company which, by special con- 
 tract, hadhmitedits liability to loss by the fraud 
 or gross negligence of its servants, and was au- 
 thorized to retain the goods for thirty days for the 
 collection of the charges on the same, and at 
 the end of that time to return them to the con- 
 signors, — Held, not liable for a loss by fire, not 
 happening through the causes specified, from 
 the mere fact *hat the goods were destroyed 
 while in store after a detention of thirty-nine 
 days, without notice to the consignor of the 
 non-delivery and failure to collect. N. Y. C. P., 
 1873, Landsherg v. Dinsmare, 4 Daly, 490. 
 
 103. Iioss unexplained. Carriers by water, 
 who receive a cask of wine in good order, and 
 undertake for a reward to deliver it at its des- 
 tination, stipulating against liability for loss by 
 leakage, damage from storage, straining or other 
 peril of the seas, are liable for the loss if, when 
 such cask reaches its destination, it proves to be 
 empty, unless they show that such loss occurred 
 within some clause of the bill of lading exempt- 
 ing them from liability. Proving that the ship 
 had a tempestuous vojsage, that the cargo was 
 well stowed, and that the hatches were properly 
 secured, etc., does not tend to shift the burden 
 of proof. Sup. Ct., 1872, Arend v. Liverpool, 
 N. Y. 4~ Phila. Steamship Co., 6 Lans. 457 ; 
 S. a, 64 Barb. 118. 
 
 104. It is not necessary, in order to sustain 
 an action for such loss, that the plaintiff should 
 show that the government duties had been paid 
 on the wine, or a custom-house permit obtained 
 to land it. lb. 
 
 105. Unloading goods on Sunday is not 
 evidence of fault or negligence on the part of a 
 carrier, in the absence of proof that by the law 
 of the State where the loss happened such act 
 was unlawful. Ct. App., 1874, Shelton v. Merck. 
 Des. Trans. Co., 59 N. Y. (14 Sick.) 258. 
 
 106. Liability when terminated. - Until 
 notice is given to the consignee of the arrival of 
 goods, the liability of a common carrier as such is 
 not discharged. Ct. App., 1873, Sprague v. New 
 York Central R. R. Co., 52 N. Y. (7 Sick.) 637. 
 
 107. Where the residence of a consignee is 
 not known to the carrier, he should, before the 
 arrival of the goods, give such information to 
 the latter as will enable him to give the requisite 
 notice. And if the latter, not being so informed, 
 after holding them a reasonable time, and being 
 unable on inquiry to learn the consignee's ad- 
 dress, stores them, he will be liable from that 
 time as warehouseman only. Com. App., 1873, 
 Pelton V. Renss. ^ Sar. R. R. Co., 54 N. Y. (9 
 Sick.) 214. 
 
 108. A consignee of goods cannot, after he has 
 notice of their arrival, defer taking them away 
 while he attends to his other affairs ; and so 
 much of his time, after notice, as is thus con- 
 sumed, to the neglect of taking charge of the 
 goods and removing them from the custody of 
 the carrier, cannot be allowed him in estimating 
 what is a reasonable time for such removal. 
 Ct. App., 1872, Hedges v. Hudson Riv. R. R. Co., 
 49 N. Y. (4 Sick.) 223 ; Rev'g S. C, 6 Rob. 119. 
 
 109. Where a package of money was delivered 
 to an express company, directed to a bank at a 
 point beyond its line, and marked "for redemp- 
 tion," the receipt given by the company, con- 
 taining an agreement to "forward " to the point 
 designated, and the charges being paid only to 
 the end of its own line, — Held, that the bank 
 was thereby made the consignee of the package, 
 and the redemption of the currency, which was 
 the apparent object of the consignment, was a 
 trust confided to such consignee ; and, further, 
 that the obligation of the company as carrier 
 was terminated upon safe delivery of the pack- 
 age to the next connecting carrier. Lott, Ch. J., 
 and Hunt, J., dissent. Com. App., 1872, Reed 
 V. United States Express Co., 48 N. Y. (8 Sick.) 
 462. 
 
 110. Where an express company, by its agent, 
 received for transportation a box, marked to a 
 consignee at a point beyond its route, " C. 0. D. 
 $45," and executed and delivered a receipt filled 
 up on one of its blanks by the clerk of the con- 
 signor, by the terms of which it undertook to 
 forward the box to the point on its line nearest 
 the place of destination, but was not to-be liable 
 e.Ycept as forwarder, nor for loss by fire, nor for 
 any default or negligence of any company off 
 its route to which the box might be delivered 
 for transportation, but such company was to be 
 regarded as the agent of the consignor, — Held, 
 that such company was not liable to the con- 
 signor for a loss of the box by fire, in the ware- 
 house of another company, which had trans- 
 ported it from the nearest point reached by the 
 first company to the place of destination, and 
 there tendered it to the consignee, and he liad 
 refused to receive it and pay charges. The 
 contract expressed by the letters " C. 0. D." 
 does not change the ordinary character of the 
 shipment until the collection is in fact made. 
 Sup. Ct., 1874, Gibson v. Am. Merch. U. Express 
 Co., 1 Hun, 387. 
 
 111. After the refusal of the consignee to 
 receive the box, it was the duty of the carrier, 
 having it in possession, to keep it as a ware- 
 houseman ; and such carrier could only be held 
 liable for its own negligence, which must be 
 proved, and could not be presumed. lb. 
 
 112. Where defendants, a joint stock com 
 pany, doing a general express business, were 
 also agents for a steamship company, and, 
 having received goods at their office in New 
 York for transportation to San Francisco, and 
 delivered a bill of lading therefor in the name 
 of the steamship company, were requested and 
 agreed to collect the amount due thereon on 
 delivery, and such goods were, on their arrival 
 in San Francisco, placed in defendant's ware- 
 house, the consignee several times notified and 
 the pay demanded, but s uch consignee, though not 
 refusing, either did not pay or take the goods, 
 until after several >days they were destroyed by 
 a nitro-glycerine explosion, — Held, that, whether 
 or not defendants were originally liable as 
 carriers, they were at the time of the explosion 
 liable only as warehousemen, and not responsible 
 for the loss. Ct. App., 1871, Weed v. Barney, 
 45 N. Y. (6 Hand,) 344. 
 
 113. Under a bill of lading which provides 
 that the goods are to be " taken from alongside 
 by the consignee immediately the vessel is ready 
 to discharge, or otherwise the privilege is re- 
 served to land them on the pier, or, &c., at the 
 expense of the consignee, and at his risk, loss, 
 or injury," the carrier must notify the consignee 
 of his readiness to. deliver and the place of de- 
 livery, and afford him a reasonable opportunity 
 
CARRIER. 
 
 123 
 
 to prepare to receive the goods ; otherwise his 
 liability as carrier will not be terminated upon 
 landing the goods on the pier. N. Y. Supr. 
 Ct., 1873, GUadell v. Thomsm, 36 N. Y. Supr. 
 (S^J. & Sp.) 232. 
 
 114. The carrier's liability for goods landed 
 by him on a wharf or pier does not terminate 
 until after a reasonable notice to the consignee 
 and a reasonable opportanity for him to remove 
 and care for them. If mixed with other mer- 
 chandise so that they cannot readily be dis- 
 tinguished, they should be separated and set 
 apart therefrom by the carrier. Even after this 
 exercise of care and dihgence, if the consignee 
 does not seasonably care for or remove the 
 goods, or refuses to receive them, the carrier 
 cannot abandon or negligently expose them to 
 damage, but he is liable therefor only as ware- 
 houseman, lb. 
 
 116. Where bulky articles of freight are 
 landed from a vessel in the customary manner 
 upon a public wliarf, with due notice to the 
 consignee, and he thereupon pays the freight 
 and takes steps toward removing them, and is 
 allowed a reasonable time for that purpose, 
 their legal custody is transferred from the 
 carrier to him, especially if he be the owner or 
 bound to accept thera ; and if he unnecessarily 
 delays the removal and they are injured in con- 
 sequence by inclement weather, the carrier 
 cannot be held responsible for the loss. Ct. 
 App., 1872, Goodwin v. Baltimore §• Ohio R. R. 
 Co., 80 N. Y. (6 Sick.) 54; Eev'g S. C, 68 Barb. 
 195. 
 
 116. A carrier of goods by water is not re- 
 leased from all responsibility for their safety 
 by a discharge from the vessel at a proper place 
 and seasonable hour, and due notice given to 
 the consignee, such place of delivery not being 
 designated by the latter nor fixed by any course 
 of dealing between the parties ; but the con- 
 signee is entitled to a reasonable time to remove 
 them, during which the carrier's liability con- 
 tinues ; and if he neglects so to do, it then 
 becomes the carrier's duty to store them for the 
 owner. Ct. App., 1871, Redmond v. Liverpool, 
 N. Y., Sr Phil. Steamship Co., 46 N. Y. (1 Sick.) 
 678 ; Kev'g S. C, 66 Barb. 820. 
 
 117. If after the lapse of a reasonable time for 
 removal by the owner, the goods are, in pursu- 
 ance of law, delivered to the revenue officers of 
 the government, the carrier will be discharged 
 from further responsibility ; but where the 
 owner has obtained the proper permit to land 
 them, the mere fact that they are landed under 
 the supervision of an inspector of customs, 
 whose duty it is to see that goods are not 
 removed in fraud or evasion of the revenue 
 laws or taken to places not authorized by law, 
 does not at all affect the' duties or liability of 
 the carrier. . lb. 
 
 118. Where the consignee of a cargo of wheat 
 shipped from Oswego to Albany, on being noti- 
 fied of the arrival of the vessel at the latter city, 
 directed the master to proceed with his vessel 
 and cargo across the channel of the Hudson 
 River to an elevator at East Albany, in the 
 port of Albany, which he did, and the cargo 
 was nearly destroyed by fire originating in the 
 elevator while waiting discharge, the damaged 
 portion being sold under direction of the carrier 
 and the proceeds paid over to the consignee, — 
 Held, that the contract had reference to the 
 port, and not alone to the city of Albany, and 
 that there was not a sufficient delivery to dis- 
 charge the carrier. Com. App., 1872, Gibbs v. 
 Van Buren, 48 N. Y. (3 Sick.) 661. 
 
 119. TJnless the terms of the bill of lading 
 clearly and explicitly provide otherwise, a car- 
 rier is discharged by delivery of the quantity 
 received by him, though less than that specified 
 in the bill. Com. App., 1872, Abbe v. Eaton, 61 
 N. Y. (6 Sick.) 410. 
 
 120. A stipulation that "all damage caused 
 by the boat or carrier^ or deficiency of cargo 
 from quantity, as herein specified, shall be paid 
 by the carrier and deducted from the freight, 
 and any excess in the cargo shall be paid for to 
 the carrier by the consignees," does not preclude 
 the carrier from showing a mistake in the quan- 
 tity, lb. 
 
 121. A delivery of goods consigned to a ficti- 
 tious firm, to the person who had ordered them 
 under such fictitious name, upon his inquiring 
 after their arrival, stating that he had called 
 for them, and receipting for them in the name 
 of the firm, without requiring proof of identity, 
 will not discharge the carrier, but it will be 
 liable to the consignor for their value. Chuboh, 
 Ch. J., dissents. Ct. App., 1872, Price v. Oswego 
 Sr Syracuse R. R. Co., 50 N. Y. (6 Sick.) 213; 
 Eev'g S. C, 58 Barb. 699. 
 
 122. A bill of lading of wgpl, which states that 
 the same is addressed to the order of O, and ad- 
 vice sent to R does not authorize a delivery to 
 R although he may have accepted bills drawn 
 against the shipment and discounted by on 
 delivery of the bills of lading ; but, if previous 
 shipments of wool similarly consigned, and the 
 bills of lading therefor delivered to under 
 similar circumstances, have been delivered by 
 the carrier to R without objection from 0, the 
 carrier has a right to regard him as the author- 
 ized agent of O, and the delivery to him is good. 
 Ct. App., 1875, Ontario Bank v. New Jersey 
 Stmbt. Co., 59 N. Y. (14 Sick.) 610. 
 
 123. Acceptance at intermediate port. 
 Where part of a cargo of grain is damaged while 
 in the course of transportation, by a peril or ac- 
 cident not within the exception of the bill of 
 lading, the mere receiving thereof by the owner 
 or liis agent at an intermediate port will not pre- 
 clude him of his remedy against the carrier, but 
 it must appear that tlie acceptance was intended 
 as a discharge of the vessel and her owner from 
 further responsibility. Com. App., 1872, Home 
 Ins. Co. V. Western Trans. Co., 61 N. Y. (6 Sick.) 
 93 ; AfE'g S. C, 4 Rob. 257 ; 33 How. 102. 
 
 3. Compensation and lien. 
 
 124. Freight, recovery of. A carrier who 
 contracts to carry one hundred casks of wine 
 from Bordeaux to New York, and deliver them 
 all full and in good condition, the perils and risks 
 of the sea excepted, in the absence of negligence 
 on his part, is entitled to recover full freight, 
 notwithstanding, by reason of rough weather 
 and heavy seas on the voyage, eleven of them 
 had leaked and become of little or no value. N. 
 Y. C. P. 1869, Gvnther v. Colin, 3 Daly, 125. 
 
 125. Freight, -who liable for. A consignee 
 of goods, which, by the bill of lading, are to be 
 delivered to him on payment of tlie freight, by 
 receiving the . cargo becomes liable to pay the 
 freight to the carrier. Com. App., 1872, Abbe v. 
 Eaton, 61 N. Y. (6 Sick.) 410. 
 
 126. The bare receipt of goods by an agent of 
 the owner and intermediate consignee, for the 
 special purpose of reshipping them to their place 
 of final destination, by virtue of a bill of lading 
 which does not Impose payment of the freight as 
 a condition of the receipt, will not render such 
 intermediate consignee liable to the carrier for the 
 
124 
 
 CARRIER. 
 
 freight, where his agency is known to the carrier 
 at the time of delivery and no claim is then 
 made for back freight. Ct. App., 1872, Dart v. 
 Ensign, 47 N. Y. 619 ; Eev'g S. C, 2 Lans. 383. 
 
 127. Where one doing business in Chicago as 
 " E K B agent " and occasionally employed by 
 S & Co. of Milwaukee, on special order, to pur- 
 chase and sell wheat for them at the former 
 place, having received such an order and made 
 a purchase, telegraphed S & Co. asking them at 
 what price they would sell, and on receipt of 
 their reply, shipped the wheat to H & Co. in 
 New York, the general consignees both of him- 
 self and S & Co., the bill of lading, being for ac- 
 count of himself " care of H & Co. N. Y. for S & 
 Co.," drawing a draft against the shipment which 
 was accepted and afterward paid by H & Co., 
 with the knowledge of H a member of both firms. 
 Held, that the carrier, receiving the wheat, hav- 
 ing delivered it to an intermediate carrier with- 
 out requiring prepayment of back freight, could 
 not recover such freight of S & Co. they sustain- 
 ing the relation neither of consignor nor con- 
 signee to the cargo, and not having contracted 
 or authorized a contract for its transportation ; 
 also that the fact that H at the time of accept- 
 ance, knew the form of the bill of lading, did 
 not impose upon him the duty of advising such 
 carrier of the want of authority of the person 
 shipping, or render said S & Co. liable. Ct. App., 
 1874, Martin v. Smitli, 58 N. Y. (13 Sick.) 672. 
 
 128. Lien, discharge of. Where, by reason 
 of the default of the consignee of goods in re- 
 ceiving them, the carrier acquires a right to 
 warehouse them, he may deposit them with a 
 storekeeper without losing his lien for freight ; 
 and it makes no difference whether he deposits 
 them in the name of the owner subject to the 
 lien, or in his own name. In either case, the 
 possession of the keeper is to be deemed that of 
 the carrier for the purpose of preserving the lien. 
 Ct. App., 1874, Western Transportation Co. v. 
 Barber, 56 N. Y. (11 Sick.) 544. 
 
 129. Where a bill of lading provided that the 
 consignees of a cargo of oats should have three 
 week days after arrival and notice, regardless of 
 weather, to discharge the cargo ; and for each 
 and every day of demurrage over and above the 
 three, they should pay damages, at a rate speci- 
 fied, to the carrier ; — Held, that such consignees 
 were not in default, until the expiration of a rea- 
 sonable time after the three days to complete the 
 delivery, or until notice from the carrier that the 
 right of detention would be terminated within 
 some reasonable time specified; and that if the 
 carrier stored such cargo immediately upon the 
 expiration of the three days, his lien thereon for 
 freight would be discharged. lb. 
 
 II. Op animals. 
 
 130. Liability. In the transportation of live 
 stock, a common carrier is relieved from respon- 
 sibility for such injuries as occur in consequence 
 of the vitality of the freight. Where, therefore, 
 a shipper of liogs agreed in consideration of a 
 reduced freight, to take the risk of any injuries 
 from heat, &o., and a number died from heat in 
 consequence of the negligence of the carrier's 
 servants in not watering the hogs and cooling 
 them by wetting ; — Held, that effect could be 
 given to the special contract only by construing 
 it as exempting the carrier from liabihty for neg- 
 ligence, and therefore it was not responsible for 
 the loss. Com. App., 1872, Cragin v. New York 
 Cent. R R. Co., 51 N. Y. (6 Sick.) 61. 
 
 131. "Where a shipper of stock by railroad from 
 
 B to E in consideration of low freight, signed a 
 contract whereby he assumed all risk of loss, 
 damage or injury to the animals — from heat, 
 crowding, &c., and agreed to load and unload 
 the stock at his own risk, and receiving a pass 
 for himself by consent, went ahead of his stock 
 on the route which stock trains usually took, 
 expecting to join it on the way, but the train on 
 which his stock was, after being started on that 
 route was changed to another route in conse- 
 quence of a strike of the men on the former 
 route, and he did not rea«h £ until some hours 
 after his cattle, when one animal was found so 
 affected by the heat and by the crowding that it 
 died ; — Held, that the limitation of liability cov- 
 ered such loss, and that the railroad company 
 was not responsible on account of changing the 
 direction of the train, bnt would have been 
 guilty of gross neglect if it had not done so. 
 Sup. Ct., 1875, Steiger v. Erie Ry. Co., 5 Hun, 
 345. 
 
 132. Conditions in a contract by a railroad 
 company to transport cattle from G to B that, 
 " 1st. The owners undertake all risks of loss, in- 
 jury, damage and other contingencies, in load- 
 ing, unloading, conveyance and otherwise. 2d. 
 The company do not undertake to forward the 
 animals by any particular train, or at any speci- 
 fied hour ; neither are they responsible for the 
 delivery of the animals within any certain time, 
 or for any particular market ;" do not extend to 
 or cover the case of damages arising from the 
 deliberate and intentional act of the company, 
 or its superintendents or agents, in suspending 
 performance after it had been commenced, and 
 refusing to perform, or to allow performance, 
 until the cattle were .greatly injured and some 
 of them had perished. Sup. Ct., 1870, Keeney v. 
 Grand Trunk Ry. Co., 59 Barb. 104;Aff'd S.C. 
 47 N. Y. (2 Sick.) 525. 
 
 133. Where, by a positive and peremptory 
 order from the freight agent of the company, 
 the car containing such cattle was detached 
 from the train and placed upon a side track at 
 an intermediate station, where the cattle could 
 neither be fed nor watered, nor with any safety 
 be unloaded, and was there detained three or 
 four days, until some of the cattle perished from 
 hunger and the inclemency of the weather, and 
 others were greatly reduced in flesh, weakened 
 and otherwise injured ; — Held, that the case was 
 not one of injury arising from negligence in any 
 degree, but one of injury caused by the delib- 
 erate and intentional refusal of the company to 
 perform its contract, and it was liable therefor. lb 
 
 184. General expressions in a contract exempt- 
 ing a party from liability on account of injuries 
 to property committed to his charge, should 
 never be held to apply to injuries arising from 
 his wrongful acts, unless it is expressly so stipu- 
 lated, lb. 
 
 ni Or PA8SBNGEB8. 
 1. The contract. 
 
 135. Ticket.' A railroad passage ticket, bear- 
 ing on its face the words " Good for this day 
 only," with the date indorsed, is evidence of the' 
 contract between the parties, and will not entitle 
 the holder to passage on the cars on a day sub- 
 sequent to its date. Sup. Ct., 1872, JBoice v. 
 Hudson Riv. R. R. Co., 61 Barb. 611. 
 
 136. Verbal declarations of the company's 
 ticket agent, made to the holder after the pur- 
 chase of such ticket, in respect to its validity 
 after that date, would not constitute a valid con- 
 
CARRIER. 
 
 125 
 
 tract, in the absence of proof of the authority 
 of the agent to make it ; and even if they 
 were sufficient in terms to constitute a con- 
 tract, it would he void for want of consideration, 
 lb. 
 
 137. Where a railroad company sells a passen- 
 ger ticket for its own road, with the ordinary 
 coupons attached for connecting roads, to a point 
 beyond its own terminus, it thereby contracts 
 for through transportation to that point, and in 
 the absence of proof of its agency as a partner 
 or otherwise for the other roads, they are only 
 responsible for transportation over their own 
 lines. Sup. Ct., 1872, Kessler v. N.Y. Central R. R. 
 Co., 7 Lans. 62. 
 
 188. Under such a contract, the passenger 
 cannot hold an intermediate carrier liable for 
 the loss of his baggage, witliout proof of its actual 
 delivery to such carrier, or loss while in its pos- 
 session, lb. 
 
 139. Where a city expressman, having engaged 
 to take a trunk to a certain depot and deliver it 
 there for the owner at about 1 p. M., delivered the 
 same at the place specified a few minutes after 
 1 o'clock, and left it in a baggage room which 
 was the only place provided by the railroad 
 company for its reception (baggage never being 
 take into its charge until checked for a pas- 
 senger presenting a ticket) ; and the owner 
 coming about an hour afterward, was unable to 
 find it, — Held, that the expressman had fully dis- 
 charged his duty and was not liable. Com. App., 
 1873, Henshaw v. Rowland, 64 N. Y. (9 Sick.) 
 242. 
 
 140. Limitatioii of liability. The legal pre- 
 sumption, arising in the absence of fraud, con- 
 cealment or improper practice, that stipulations 
 limiting the common-law liability of carriers, 
 contained in a receipt given for freight, were 
 known and assented to by the party receiving it, 
 are equally applicable to the contract for the 
 transportation of a passenger and her baggage. 
 Com. App., 1874, Steers v. Liverpool, N. Y. and 
 P. Steamship Co., 57 N. T. (12 Sick.) 1. 
 
 141. Under provisions in such a receipt that 
 the carrier is " not to be held liable or responsible 
 for any loss or damage thereto, in any sum, 
 except where the same shaU have been proven 
 to have occurred from gross negligence of said 
 company or their servants, nor in any event shall 
 the passenger demand beyond the sum of fifty 
 dollars, unless a bill of lading or receipt be signed 
 therefor specifying the articles and their respec- 
 tive values, — that money, jewelry and all valu- 
 ables, are entirely at the passengers own risk, 
 unless placed in the company's charge, and a bill 
 of lading or receipt signed therefor, " if the bag- 
 gage is placed in the entire charge of the carrier's 
 servants so that the passenger has no further 
 control over it on the voyage, and the carrier 
 fails to produce it or account for it at the end of 
 the voyage, those facts are sufficient to establish 
 gross negligence on its part, and render it liable 
 for the loss ; but in the absence of such a bill of 
 lading or receipt as the contract calls for, the 
 recovery cannot go beyond the sum of fifty 
 dollars, nor can there be any recovery for money, 
 jejfelry or other valuables. lb. 
 
 142. Cards or tokens given by an express 
 company in exchange for baggage cheeks, are 
 not of such a nature as to import a contract, or 
 charge the taker with knowledge of printed con- 
 ditions thereon; and such conditions, unless 
 expressly assented to, will not form a contract 
 between the parties so as to limit the common- 
 law hability of the company. Ct. App., 1871, 
 Blossom V. Dodd, 43 N. Y. (4 Hand,) 264. 
 
 2. Liability for baggage. 
 
 143. What is baggage. The law raises an 
 implied contract on the part of carriers of pas- 
 sengers, that their baggage, such as a traveler 
 ordinarily carries with him for liis personal con- 
 venience, shall be safely transported, and deliv- 
 ered to him ; and, in the case of a steerage pas- 
 senger on a vessel, bound to provide his own 
 bedding, such bedding should be considered a 
 part of the baggage for wliich the carrier is 
 liable. N.Y. Supr.,.1872, Eirschsohn v. Hamburg 
 Am. Packet Co., 34 N. Y. Supr. (2 J. & Sp.) 521. 
 
 144. The authorities as to what property is 
 baggage, considered. In this case, the court 
 refused to set aside a verdict for $10,000 for 
 laces, stolen from the trunk of a Russian lady 
 of high rank while traveling by railroad in this 
 country, they being sucli as she had been accus- 
 tomed to wear at home and elsewhere. U. S. Cir. 
 Ct., 1875, Fralaw v. N. Y. Central and Hudson 
 River R R. Co., 48 How. 535. 
 
 145. Money, not exceeding a sum necessary 
 for travelling expenses, and jewelry, such as is 
 ordinarily worn on the person, form part of a 
 passenger's baggage, for loss of which a common 
 carrier is liable. N. Y. C. P., 1869, Torpey v. 
 Williams, 3 Daly, 162. 
 
 146. Where a carrier of passengers, in addition 
 to the money paid for her passage, demanded 
 and received from a passenger an extra sum for 
 the carriage of certain packages containing both 
 goods and personal baggage; — Held, in the 
 absence of proof of any fraud or concealment 
 as to the contents of such packages, that the 
 carrier was liable, in case of a loss, for the whole 
 property, including merchandise. Ct. App., 1873, 
 Stoneman v. Erie Railway Company, 52 N. Y. (7 
 Sick.) 429. 
 
 147. Obligation to carry. The obligation 
 of. a carrier of passengers by railroad is to take 
 whatever is delivered and received as baggage 
 from a passenger into the baggage car of the 
 train on whicli the owner takes passage, and take 
 it along with, and deliver it to him at the place 
 of destination, in the usual manner of transport- 
 ing and delivering baggage. The obligation is 
 the same whether the baggage is within the 
 quantity allowed to a passenger without extra 
 charge or not. N. Y. Supr. Ct., 1874, Fairfax v. 
 N. Y. Cent, and Hud. Riv. R. R. Co., 38 N. Y. 
 Supr. (5 J. & Sp.) 516. 
 
 148. The contract to carry the ordinary bag- 
 gage of the passenger is implied from the usual 
 course of business, and the price paid for fare is 
 considered as including a compensation for car- 
 rying the freight. lb. 
 
 149. Agents of companies have no authority 
 to receive baggage on their account, excfept as 
 incidental to passenger transportation ; and the 
 taking of baggage by an agent of a line over which 
 it is not checked, and over which the owner has 
 no ticket, either through mistake or accident, 
 without authority, cannot create the relation of 
 carrier to a passenger between such line and the 
 owner so as to make it liable as such for the 
 baggage. lb. 
 
 150. Where a passenger buys, a through ticket 
 from Montreal to New York witli coupons 
 attaclied, one of which reads from Albany to 
 New York by People's Line of steamers, the mere 
 fact that his baggage was delivered by the Rens- 
 selaer and Saratoga railroad to a baggage master 
 of the N. Y. Central and Hudson River Railroad 
 company and by that company transported to 
 New York, wliile the owner went by steamer, 
 will not make the latter company liable for such 
 
126 
 
 CARRIER. 
 
 baggage as carrier, without proof that the com- 
 pany selling the ticket had authority to sell 
 tickets authorizing such a transfer of baggage, 
 or had made arrangements therefor. CnBT-is, J., 
 dissents. lb. 
 
 151. Mere proof that baggage was sometimes 
 so carried does not establish such authority or 
 arrangement. lb. 
 
 152. The rigorous liability of the carrier 
 ceases, and ordinary care is the measure of his 
 duty, if the owner fails to call for his baggage 
 in a reasonable time after the train arrives at its 
 destination. If he expects to stop at intervals on 
 his route, he should have it checked according 
 to such intervals, and not by a through check. lb. 
 
 158. Xdability for loss. In order to render 
 a railroad company liable as a common carrier 
 for the loss of baggage, belonging to a passenger, 
 upon a steamboat connecting with its line, the 
 company must have some community of interest 
 in, or some control over the carriage of passen- 
 gers by such boat line, and there must be proof 
 thereof. N. T. C. P., 1872, Green v. N. Y. 
 Central K R. Co., 12 Abb. N. S., 473; S. C, 4 
 Daly, 553. 
 
 154. The mere fact that the company affixed 
 to the passenger's trunk a baggage check of the 
 steamboat line, without payment of fare over 
 that line, or an agreement to carry the trunk as 
 freight, does not make it liable therefor. lb. 
 
 155. The owners of a passenger vessel are lia- 
 ble for the baggage of an emigrant passenger, 
 who had taken passage from Liverpool to New 
 York, lost after its transfer from their steamer 
 to a barge licensed by the Commissioners of 
 Emigration under the laws of this State (4 Edm. 
 Stats. 888), but employed by them, for convey- 
 ance to Castle Garden, in New York city ; the 
 transportation by the barge being but a contin- 
 uation of the transit undertaken by them. N. 
 Y. C. P., 1869, Torpey v. Williams, 3 Daly, 162. 
 
 156. Loss by fire. Under the rule of the 
 common law, which was in force here until the 
 Act of Congress passed March 3, 1851, a com- 
 mon carrier, whether by land or water, was lia- 
 ble for loss or damage by fire to goods or bag- 
 gage entrusted to it for carriage. Com. App., 
 1871, Chamberlain v. Western Transportation Co., 
 44 N. Y. (5 Hand,) 305. 
 
 157. The words " goods and merchandise " 
 in that statute are sufficiently broad to cover 
 ordinary baggage ; and the owner of a steam- 
 boat will not, since its enactment, be liable for 
 loss by fire of such baggage, save in the cases 
 excepted. lb. ; Rev'g S. C, 45 Barb. 218. 
 
 158. Retained in custody of passenger. 
 A ferryman is not liable as a common carrier for 
 loss of or injury to property retained by a passen- 
 ger in his own custody and under his own con- 
 trol, but as to such property the ordinary rules 
 of negligence apply. Ct. App., 1873, Wyckoff 
 V. Queens County Ferry Company, 52 N. Y. (7 
 Sick.) 32. 
 
 159. A steamboat company is liable, as a com- 
 mon carrier, to a passenger, for the loss of his 
 baggage, sxich as a pocket-book, money, watch 
 and chain, retained by hiip upon his person and 
 stolen in the night time from a state-room oc- 
 cupied and paid for by him, there being no neg- 
 ligence on his part. Sup. Ct., 1871, Crazier v. 
 Boston, New York Sj- Newport Steamboat Co., 43 
 How. 466. 
 
 160. The presumption in such a case is that 
 the loss occurred through the default of the car- 
 rier. A rule or notice posted up, requiring a 
 passenger to deliver his baggage to an officer of 
 the boat, cannot be construed as intended to ap- 
 
 ply to a passenger occupying a state room, or to 
 baggage of that nature. lb. 
 
 161. Termination of liability. In the ab- 
 sence of proof of a contract on the part of a car- 
 rier to convey a passenger to any particular 
 city or place in the port of destination, its lia- 
 bility for baggage is discharged upon delivering 
 according to its usual custom, as, in case of an 
 emigrant passenger, to the Commissioners of 
 Emigration at its pier in Hoboken. N. Y. C. P., 
 1871, Klein v. Hamburg American Packet Company, 
 8 Daly, 390. 
 
 162. It seems that for a loss of baggage, oc- 
 curring after such delivery, through the negli- 
 gence of the agents of such commissioners who 
 took charge of it, the latter would be personally 
 liable. lb. 
 
 163. Where a railroad company, for a sum in 
 gross paid to it, delivered to a passenger coupon 
 tickets printed and attached together, one pur- 
 porting to be its own ticket to a point specified 
 on its road, and the other, the ticket of another 
 connecting road from the point last-named to a 
 further point on the road of the latter, with a 
 direction to change cars at the junction of the 
 two roads, and at the same time gave such pas- 
 senger the check of the latter company for his 
 baggage to the place of destination on its road ; 
 — Held, that such company was not liable for a 
 loss of baggage after delivering to the second 
 carrier. Ct App., 1873, Milnor v. N. Y. %• N. 
 H. K R. Co., 53 N. Y. (8 Sick.) 863 ; Aff'g S. 
 C, 4 Daly, 355. 
 
 164. As a general rule, capture by a public 
 enemy releases a carrier from all further liability 
 respecting baggage entrusted to it, but where a 
 vessel was taken upon the high seas, the enemy 
 limiting its capture to the ship itself and express- 
 ly permitting the passengers to take their bag- 
 gage with them ; and the master of the ship 
 undertook to remove the baggage to a schooner 
 provided by the enemy for that purpose, — Seld, 
 that the carrier's liability continued. N. Y. C. 
 p., 1869, Spaids v. New York Mail Steamship 
 Company, 3 Daly, 189. 
 
 165. The responsibiUty of a common carrier 
 for baggage continues until the owner has a 
 reasonable time and opportunity to receive and 
 take it away . Ct. App., 1872, Dinning v. New 
 York and New Haven R.R. Co., 49 N. Y. (4 Sick.) 
 546. 
 
 166. The baggage master on the arrival of a 
 train put the trunk of a passenger immediately 
 into the depot, locking it up and going away. 
 The owner, after waiting about fifteen minutes, 
 and failing to find any one to deliver her bag- 
 gage, also went away, sending her son back for 
 the trunk, within tliree hours thereafter. The 
 son procured a man and team to carry it, but on 
 reaching the depot, found it still locked, where- 
 upon he went'in search of the baggage master ; 
 returning with him after some time, he delivered 
 up the checks and the trunk was drawn out to 
 the depot door, when it was found that the man 
 and team were gone. No other conveyance 
 being then available the trunk was left in charge 
 of the baggage master for the night, and. before 
 morning was broken open and rifled of its cpn- 
 tents, — Held, that the passenger had not a rea- 
 sonable opportunity to remove her baggage and 
 the carrier was not discharged. lb. 
 
 167. After the lapse of a reasonable time for the 
 owner to call for his baggage, after its arrival at 
 the place of destination, the peculiar liability of 
 the carrier as insurer ceases ; but there still re- 
 mains the obligation to exercise ordinary care 
 in keeping and preserving the property until 
 
CARRIER. 
 
 127 
 
 called for or until disposed of according to law. 
 Ct. App., 1871, Burnell v. N. Y. Central R. R. 
 Co., 45 N.Y. (6 Hand,) 184. 
 
 168. This obligation is imposed by the con- 
 tract of carriage, and does not arise merely from 
 the accidental circumstance of the baggage be- 
 ing uncalled for ; and it rests therefore upon the 
 carrier with which the contract is made, al- 
 though the place of destination be beyond its 
 route. lb. 
 
 169. In such a case a modified liability, anal- 
 ogous to that of a warehouseman, continues. 
 Com. App., 1874, Mathison v. N. Y. Cent. R R. 
 Co., 57 N.Y. (12 Sick.) 552. 
 
 170. Where a passenger on her arrival at her 
 place of destination told the baggage master at 
 the station that she wished to leave her trunks for 
 a few days, and on being told by him that he was 
 not allowed to and could not keep them with the 
 checks on, but, that if she gave up her checks 
 the trunks would be perfectly safe, left them, 
 giving up her checks, and they were afterward 
 delivered to one falsely claiming authority to 
 receivs them ; — Held, that, in the absence of 
 evidence that the agent had power to bind the 
 company by a new agreement, or had acquiesced 
 in the exercise of such power by him, in viola- 
 tion of the express instructions given to him, the 
 company was not liable for the loss. Dwight 
 and Eabl, C. C, dissent. lb. 
 
 8. Liability Jor injury to passengers. 
 
 171. Ejecting from car. Where a passen- 
 ger upon a street car, after being transferred by 
 its conductor to another car going to the point 
 which he desired to reach, with the assurance 
 that no additional fare would be demanded, was 
 ejected by the conductor of the latter car, act- 
 ing strictly in accordance with the instructions 
 of the company, and in the belief that he was 
 performing his duty, for refusing to pay another 
 fare, — Held, that the company was liable to the 
 extent of compensation, but not for exemplary 
 damages. Ct App., 1873, Hamilton v. Third 
 Ave. R. R. Co., 53 N. T. (8 Sick.) 25 ; Eev'g S. 
 C, 44 How. 294 ; 13 Abb. N. S. 318 ; 35 N. Y. 
 Supr. 118. 
 
 172. Insecure gangway. It is negligence 
 on the part of a carrier of passengers by water, 
 to leave the dock without having its gangway 
 properly closed and secured, so as to prevent 
 passengers being pushed through it by a sud- 
 den crowd or rush. Sup. Ct., 1875, Cleveland v. 
 N. Y. Steamboat Co., 5 Hun, 523. 
 
 173. Negligence. The law imposes upon a 
 carrier of passengers the duty of carrying them 
 safely, as far as human skill and foresight can 
 go, and makes him responsible for a negligent 
 injury to a passenger, whether there is a con- 
 tract or not, and even where the carrying is 
 gratuitous ; and the liability is the same, 
 whether an action is brought upon contract, or 
 for a failure to perform the duty imposed by 
 law. Ct. App., 1874, Carroll v. Staten Isl. R. R. 
 Co., 58 N. Y. (13 Sick.) 126; Aff'g S. C, 65 
 Barb. 32. 
 
 174. The carrier owes the same duty to one 
 traveling on Sunday in violation of law as if he 
 ■was lawfully traveling, and is equally liable in 
 either case for a failure to perform that duty. 
 lb. S. P., Landers v. Staten Isl. R. R. Co., 13 
 Abb., N. S. 338. 
 
 175. A carrier, although not an insurer of the 
 safety of passengers, is yet held to the exercise 
 of the utmost skill and care in the construction 
 and management of the vehicles and machinery 
 
 employed ; and when he undertakes to carry by 
 the dangerous power of steam, he cannot es- 
 cape liability for an injury to a passenger there- 
 ~by, unless it appears that the accident happened 
 from causes beyond his control, and to which 
 neither his own negligence, or that of the manu- 
 facturer of the machinery, or of those employed 
 to manage it, contributed. Ct. App., 1874, Car- 
 roll V. Staten Isl. R. R. Co., 58 N. Y. (13 Sick.) 
 126 ; Aff'g, S. C, 65 Barb. 32. 
 
 176. The Act of Congress of 1871 (16 U. S. 
 Stats, at Large, 440), providing for tlie inspection 
 of steam boilers, &o., by implication prohibits 
 the use of a greater pressure of steam than is 
 allowed by the inspector's certificate ; and if a 
 greater pressure is used and an explosion oc- 
 curs, which would not have occurred if the 
 pressure had been kept within the prescribed 
 limits, the carrier is liable, under section 43 of 
 that act, for any injury to a passenger resulting 
 therefrom. Xb. 
 
 177. This liability of the owner is not con- 
 fined to cases where the injury is caused by his 
 personal default or neglect, but extends to those 
 where it was caused by the neglect of the mas- 
 ter or persons employed about the vessel. lb. 
 
 178. Tliat act is valid, and the liability im- 
 posed by it is not affected by the act of 1851 
 (9 U. S. Stats, at Large 635), limiting the liabil- 
 ity of ship-owners. lb. 
 
 179. The inspectors are not authorized by the 
 act of 1871 to adjust the safety valves so as to 
 admit of a greater pressure upon a boiler than 
 their certificate allows to be used, and their 
 having done so is no defense to an action for an 
 injury caused by the use of an unauthorized 
 pressure. lb. 
 
 180. The carrier of passengers, especially in 
 vehicles and conveyances propelled by steam, 
 where fatal consequences are almost certain to 
 ensue from defective machinery, is bound to use 
 every precaution which human skill, care, and 
 foresight can provide, and to exercise similar 
 care and foresight in ascertaining and adopting 
 new improvements, to secure additional protec- 
 tion. Ct. App., 1872, Caldwell v. New .Jersey 
 Steamboat Co., 47 N. Y. (2 Sick.) 282 ; Aff'g S. 
 C, 56 Barb. 425. 
 
 181. The custom of skilful manufacturers of 
 the machinery used by. such carriers is not con- 
 clusive upon the question of the degree of care 
 and foresight required ; but such carrier is 
 bound to use such other means as science has 
 made known and demonstrated to be useful and 
 effective, though not in general use. lb. 
 
 182. The liability of a carrier by water is not 
 discharged by a compliance with the provisions 
 of the Act of Congress passed for the protec- 
 tion of steamboat passengers ; nor will proof of 
 such compliance overcome the presumption of 
 negligence whicli would otherwise be raised by 
 the circumstances of an accident. lb. 
 
 183. A railroad company is bound to exercise 
 the utmost care and vigilance for the safety of 
 passengers, but is not, like a carrier of goods, 
 liable as an insurer respecting them, and answer- 
 able for their safety in all events, whether its 
 own negligence intervenes or not. Com. App., 
 1871, McPadden v. N. Y. Central R. R. Co., 44 
 N. Y. (5 Hand.) 478; Rev'g S. C, 47 Barb. 247. 
 
 184. Where an injury occurred through the 
 breaking of a sound rail by the train on board 
 which tlie passenger rode, not caused by any 
 defect in tlie rail or track, but by the extreme 
 cold, — Held, the company was not liable. lb. 
 
 186. A railway company which undertakes 
 the transportation of prisoners of war, on the 
 
128 CASE FOR NEW TRIAL— CERTIFICATE OF DEPOSIT. 
 
 employment of a government officer, is not an 
 agent of government in any such sense as to re- 
 lieve it from liability for an injury to a soldier 
 in charge of the prisoners, caused by the negli- 
 gence of its servants. Sup. Ct., 1870, Truex v. 
 Erie Railway Co., 4 Lans. 198. 
 
 186. A contract for transportation of such 
 prisoners implies that they are to be properly 
 guarded, and the fact that such soldier received 
 the injury while posted as a guard on the outer 
 platform of the car carrying such prisoners, by 
 order of his superior officer, does not relieve 
 the carrier from liability. lb. 
 
 187. Contributory negligence. It is the 
 duty of a passenger, upon getting on board of a 
 car, not only to use ordinary care and attention 
 to protect himself while there, but also to place 
 himself in as safe a position therein as he is 
 able to obtain, otherwise the carrier, though 
 guilty of negligence, will not be liable to him 
 for an injury to which his own negligence con- 
 tributed. It is no excuse on his part for placing 
 himself in an unsafe position, that the persons 
 in charge know that he is unsafe, and do not 
 drive him therefrom, when the danger is also 
 well known to himself. N. Y. Supr. Ct., 1871, 
 Ward V. Central Park, North and East Riv. 
 R. R. Co., 42 How. 289 ; S. C, 11 Abb. N. S. 
 411 ; 33 N. Y. Supr. (1 J. & Sp.) 392. 
 
 CASE FOR NEW TRIAL. 
 See Appeal ; New Trial. 
 
 CASES CRITICIZED, &c. 
 See Table of Cases. 
 
 CATTLE IN HIGHWAYS. 
 
 1. Cattle found trespassing. The provision 
 of the act of 1867 (7 Edm. Stats. 185), amenda- 
 tory of " An act to prevent cattle from running 
 at large in the highways," which authorizes the 
 seizure and detention of all cattle found tres- 
 passing, is applicable only to trespasses com- 
 mitted from the highway, and not to those 
 through division fences. Ct. App., 1872, Jones 
 T. Sheldon, 50 N. Y. (5 Sick.) 477. 
 
 2. Rights of captor. The duties of the cap- 
 tor Kpf cattle trespassing from the highway are 
 performed when he has made the complaint re- 
 quired by statute. His right to hold them there- 
 after is by virtue of the original seizure, not of 
 the process issued by the magistrate, and is not 
 affected by any irregularity or defect in the 
 summons, or by an omission to post the same. 
 Ct. App., 1873, Leavitt v. Thompson, 52 N. Y. 
 (7 Sick.) 62; Rev'g S. C, 56 Barb. 542. 
 
 3. The statute points out the methods by 
 which the owner of an animal seized may re- 
 gain possession, and lays upon him the primary 
 duty to act ; and if he neglects to pay to the 
 magistrate the several charges specified in the 
 act, the refusal of the captor to deliver posses- 
 sion, although coupled with an unlawful condi- 
 tion will not make him a trespasser ab initio. 
 lb. * 
 
 4. Damages. The fifty cents per head allow- 
 ed by chapter 489, Laws 1862, as amended by 
 chapter 814, Laws 1867, to the party taking up 
 
 cattle found trespassing on his land, is allowed 
 as compensation, not for the mere taking, but 
 for pursuing the remedy provided, and the right 
 thereto is not complete until the sale of the 
 cattle. Sup. Ct., 1872, Hickox v. Thurstin, 1 
 Lans. 421. 
 
 CAUSE OF ACTION. 
 See AcTioir. 
 
 CEMETERIES. 
 
 See Chapters 68, 696, Laws of 1871 ; Ceap- 
 tebs 46, 361, Laws of 1878. 
 
 1. Acquiring lands for. The acts authoriz- 
 ing lands to be taken for cemetery purposes by 
 compulsory proceedings (chapter 727, Laws of 
 1869 ; chapter 760, Laws of 1870 ; and chapter 
 452, Laws of 1873), are constitutional and valid ; 
 provision for the proper and decent burial of 
 the dead being a public necessity and duty. 
 Sup. Ct., 1875, In the matter of Deansville Ceme- 
 tery Asso., 5 Hun, 482. 
 
 2. Conveyances of lots. The statute de- 
 claring that lots in Greenwood Cemetery, when 
 conveyed to individuals, shall not be liable to 
 sale on execution, nor applied to the payment 
 of debts by assignment under insolvent laws 
 (chapter 298, Laws 1838), does not prohibit the 
 voluntary conveyance thereof by the owner, 
 either by absolute deed or by mortgage, nor 
 prevent a strict foreclosure of a mortgage given 
 thereon. Sup. Ct., 1871, Lantz v. Btuxingham, 
 11 Abb., N. S. 64; S. C, 4 Lans. 484. 
 
 8. Title to lands. A cemetery association, 
 organized under chapter 138, Laws of 1847 (3 
 Edm. Stats., 745), notwithstanding the convey- 
 ance of sub-divisions to different person for 
 burial purposes, remains the general owner of 
 lands acquired by it under the statute, and holds 
 that relation towards the public and the govern- 
 ment, while, subject to this, the individual has 
 a right exclilsive of any other person to bury 
 upon the part assigned him, his position being 
 analogous to that of a pewholder in a house for 
 public worship. Ct App., 1871, Buffalo City 
 Cemetery y. City of Buffalo, 46 N. Y. (1 Sick.) 
 603. 
 
 CERTIFICATE OF DEPOSIT. 
 
 1. Indorser, liability of. A certificate of 
 deposit in the usual form possesses all the requi- 
 sites of a negotiable promissory note ; and a 
 bona fide holder can recover against the indor- 
 ser thereof as well as against the maker. Ct 
 App., 1875, Pardee v. Fish, 60 N. Y. (15 Sick.) 
 265. 
 
 2. The negotiable character of such certificate 
 is not affected by its being made payable in cur- 
 rent bank notes instead of specie, or by the 
 necessity of a demand before suit upon it. lb. 
 
 8. The indorser of a certificate remains liable 
 as such until an actual demand for payment is 
 made, and the holder is not chargeable with 
 neglect for omitting to make such demand within 
 any particular time. lb. 
 
 4. Where a savings bank was declared bank- 
 rupt about two months after an indorsee received 
 
CERTIORARI. 
 
 129 
 
 its certificate of deposit, and he did not present 
 it for payment until tliree months afterwards, — 
 Held, that the indorser was not thereby dis- 
 charged, lb. 
 
 CERTIORAKI. 
 
 I. At whosg instance lies 129 
 
 n. In what cases libs 129 
 
 ni. What questions review able 130 
 
 IV. Phaotice 131 
 
 I. At whose instance lies. 
 
 1. An imprisoned debtor has an abso- 
 lute right, under 2 Edm. Stats. 50, section 47, 
 to the remedy by certiorari for a review of pro- 
 ceedings for his discharge from imprisonment, 
 notwithstanding he has also the right of appeal. 
 Sup. Ct., 1875, People ex rel. Lewis v. Daly, 4 
 Hun, 641. 
 
 2. Former OTvner. Certiorari will lie at 
 the instance of the former owner of premises 
 deeded for taxes by the city of Brooklyn, to 
 review summary proceedings under the city 
 charter, instituted by the grantee of such deed 
 against his tenant, to recover possession of the 
 demised premises. Ct. App., 1873, People ex rel. 
 Sheridan v. Andrews, 52 N. Y. (7 Sick.) 445. 
 
 3. Party interested. The relator in the 
 proceeding by common-law certiorari to review 
 the action of a highway commissioner in laying 
 out a road, must show that he is either a party to 
 it in form, or that his property or rights are so 
 immediately and directly involved and affected 
 by it, as to make him, in substance and legal 
 effect, a party. Sup. Ct., 1872, People ex rel. 
 Lawrence v. Schell, 5 Lans. 352. 
 
 4. One whose lands are not interfered with by 
 such road, and who has no interest affected by 
 it except as an inhabitant, taxpayer or officer of 
 the town, will not be permitted to prosecute such 
 writ, even though the opening of the new road 
 may divert business from his tavern on another 
 road. lb. 
 
 5. FetitioneT. One who joined in the peti- 
 tion for bonding a town for railroad purposes is 
 not thereby estopped from bringing a certiorari, 
 as relator, to review proceedings of the county 
 judge upon thepe'tition which are alleged to be 
 illegal. Sup. Ct., 1873, People ex rel. Youmans v. 
 
 Wagner, 7 Lans. 467. 
 
 6. If there be any doubt as to the right of a 
 supervisor of the town to bring such certiorarl'in 
 his official capacity-, the description of the rela- 
 tor's official character may be stricken from the 
 title of the case by amendment, and it regarded 
 as his individual proceeding. lb. 
 
 7. "His name may also be stricken out, if he is 
 not entitled to institute the proceeding, and it 
 may be regarded as the proceeding of the town, 
 which has power to maintain such ar proceeding, 
 lb. 
 
 8. Persons similarly interested. The 
 allowance of the writ on behalf of two or three 
 out of a large number of persons similarly inter- 
 ested in taxes and assessments for local improve- 
 ments, or the public benefit, should be discoun- 
 tenanced, especially where adequate relief is 
 afforded in proceedings at law. Sup, Ct., 1875, 
 People ex rel. Kilmer y. McDonald, 4 Hun, 187. 
 
 9. A tax payer. Of a town as a right to a 
 common-law certiorari to review the proceedings 
 of assessors in relation to bonding the town in 
 aid of a railroad, their decision being a judicial 
 
 9 
 
 one, and he having no other adequate remedy. 
 Sup. Ct., 1873, People ex rel. Akin v. Morgan, 65 
 Barb. 473. 
 
 10. The town is not the proper party to be the 
 relator for the review of such proceedings 
 because it has no interest, as a town, in the pro- 
 ceedings, lb. 
 
 11. A suit inequity by a taxpayer to set aside 
 the proceedings cannot be maintained, and 
 therefore cannot bar the remedy by certiorari,- lb. 
 
 n. In what oases lies. 
 
 12. In general. Tlie original' office of the 
 common-law writ of certiorari was to bring up 
 the record of the proceedings of an inferior court 
 or tribunal, to enable the court of review to 
 determine whether or not it had proceeded 
 within its jurisdiction, and though this has been 
 somewhat enlarged so as, in some cases, to per- 
 mit the correction of mere errors, it is only 
 where the relator has no other available remedy 
 and where injustice would be done were the 
 writ not allowed. Ct. App., 1874, People ex rel. 
 S. and' U. Hudson E. R. Co. v. Betts, 55 N. Y. 
 (10 Sick.) 600. 
 
 13. A statute which declares that the deter- 
 mination of an inferior tribunal shall be final 
 and conclusive is a bar to a review by certiorari, 
 as well as by appeal. lb. 
 
 14. Final determination. A writ of cer- 
 tiorari will not issue to inferior courts, tribunals, 
 or officers exercising judicial functions, until a 
 final determination or adjudication by them in 
 the proceedings sought to be reviewed. Sup. 
 Ct., 1875, People ex rel. Cui/ler v. Trustees of the 
 Village of Palmyra, 3 Hun, 549. 
 
 15. To review assessments. The writ of 
 certiorari to review assessments issues only in 
 the sound discretion of the court upon special 
 cause shown, and, when issued, will be super- 
 seded if the remedy sought be inconsistent with 
 tlie interests of public justice and convenience. 
 Sup. Ct., 1874, People ex rel. Williams v. Board 
 of Assessors of Albany, 2 Hun, 583. 
 
 16. A writ of certiorari will be quashed, where 
 it appears that the relator is not entitled to have 
 the assessment on his bank stock reduced in 
 proportion to that of a particular bank named, 
 as asked, but that a reassessment of all the bank 
 stock in the ward or city would be necessary, 
 and that such a reassessment is impracticable, as 
 none of the assessments against stockholders 
 can be increased. lb. 
 
 17. Certiorari should not be allowed to review 
 the action of assessors, after delivery of the roll 
 to the board of supervisors, and if allowed, 
 should be quashed, even after return made. Ct. 
 App., 1872, People ex rel. Marsh v. Delaney, 49 N. 
 y. (4 Sick.) 655. 
 
 18. Decision of canal boEurd. An order 
 of the canal board on appeal from an award 
 of the canal appraisers, which is not in com- 
 pliance with the provision of section 4, 
 chapter 352, Laws 1849, in respect to stating the 
 grounds of their reversal or modification of the 
 award, and how much, if any, the award is in- 
 creased or diminished, may properly be review- 
 ed and set aside on common-law certiorari. Sup. 
 Ct., 1872, People ex rel. Seymour v. Canal Board, 
 8 Lans. 220. 
 
 19. That will be done even in cases where the 
 decision of the inferior tribunal is made by 
 statute final and conclusive. lb. 
 
 20. The fact that, after the issuing of the writ, 
 the canal board, recognizing the invalidity of its 
 decision, rescinded it, could not have any effect 
 
130 
 
 CERTIORARI. 
 
 upon the relator's tights to a judicial construc- 
 tion of the act. lb. 
 
 21. Upon certiorari, in such a case, the de- 
 cision of the board being made by statute final 
 and conclusive^the court cannot look into the 
 merits, or render judgment on the award, but 
 can only determine whether the board had juris- 
 diction to perform the act complained of, and 
 has kept within the powers given it by law. lb. 
 
 22. — of commissioners of high-ways. A 
 writ of certiorari ought not to issue to review 
 proceedings of commissioners of highways rela- 
 tive to laying out a highway, while an appeal is 
 pending therefrom. Sup. Ct., 1874, People ex rel. 
 hudlum V. Wallace, 2 Hun, 152. 
 
 23. — of county board. Certiorari lies to 
 reverse the decision of a county board of super- 
 visors in rejecting a claim, declared by the legis- 
 lature to be a lawful charge against the county, 
 not for the reason that it is not sufficiently 
 proved, but because it is, in their opinion, not 
 just and legal ; and it matters not that the court 
 cannot, by certiorari, cause the board to act and 
 do its duty. It can review the erroneous deter- 
 mination, and then if the board refuse to allow 
 the claim, the relator can take such further 
 remedy, by mandamus or otherwise, as the law 
 gives him. People ex rel. Oneida Valley National 
 Bank V. Supervisors of Madison County, 51 N. Y. 
 (6 Sick.) 442. 
 
 24. — of justice's court. The only mode of 
 reviewing judgments rendered by justices of the 
 peace is by appeal, as provided by chapter 5 of 
 the Code. Such judgments cannot be reviewed 
 by common law certiorari. Sup. Ct., 1874, People 
 ex rel. Halloch v. Sleight, 2 Hun, 632. 
 
 25. — of police commissioners. A common 
 law certiorari is the proper remedy for a review 
 of the action of police commissioners in remov- 
 ing an officer ; not a mandamus. Sup. Ct., 1872, 
 People ex rel. Grace v. Board of Police Com- 
 missioners of Troy, 43 How. 386 ; Aff'g S. C, 12 
 Abb. N. S. 181. 
 
 26. — for bonding a tow^n. The Supreme 
 Court has a discretion either to grant or with- 
 hold a common law certiorari, even where the 
 relator has no other remedy, and the exercise of 
 that discretion cannot be reviewed by the Court 
 of Appeals. Ct. App., 1873, People ex rel. Davis 
 V. HUl, 63 N. Y. (8 Sick.) 647; Aff'g S. C, 65 
 Barb. 436. 
 
 27. The court may properly refuse to grant 
 the writ, for the purpose of reviewing proceed- 
 ings to bond a town in aid of a railroad, if not 
 applied for until after a lapse of more than two 
 years from the time when the assessors made 
 and filed their affidavit, and after new rights 
 had been acquired under the acts of the officers 
 of the town, done with the apparent consent of 
 the taxpayers ; and for the same reason it may 
 dismiss and quash the writ after a hearing on 
 the return thereto. lb. 
 
 28. Where the right to issue municipal bonds 
 in aid of a railroad is made by statute to depend 
 upon an affidavit of' the assessors to the effect 
 that a majority of the taxpayers have consent- 
 ed, such affidavit is in the nature of a judicial 
 decision ; and the proceedings of the assessors in 
 arriving at such determination are reviewable 
 upon certiorari. Ct. App., 1873, People ex rel. 
 Yawger V.Allen, 62 N. Y. (7 Sick.) 538. S. P., 
 People ex rel. Akin y. Morgan, 65 Barb. 478. 
 
 29. An injunction is not the proper remedy to 
 restrain the issuing of town bonds in aid of a 
 railroad, on the ground that the persons signing 
 the consents were not all taxpayers or owners 
 of all tlie property assessed to them, or that not 
 
 a sufficient number of taxpayers and property- 
 holders had signed consents, because the affida- 
 vits of the assessors, with the consents and copy 
 of assessment roll, are absolute and unqualified 
 evidence of those facts, and can only be assailed 
 by a direct proceeding to correct. Sup. Ct., 
 1872, Pierce v. Wright, 45 How. 1. The proper 
 remedy is by writ of certiorari. Sup. Ct., Sp. T., 
 
 1872, Corwin v. Campbell, 45 How. 9. 
 
 30. — of several ofBcers. For the purpose 
 of reviewing on certiorari an official transaction, 
 for the completion of which several officers or 
 bodies are required to perform separate acts, it 
 is not necessary that a separate writ should be 
 issued to each of such officers or bodies ; but it 
 is sufficient that one writ be directed to them 
 all, and then each o£ them can return as to the 
 part performed by himself or itself. Sup. Ct., 
 
 1873, Peophex rel. Davis j. Hill, 65 Barb. 170. 
 
 31. Thus, to review proceedings for bonding 
 a town in aid of a railroad, it is essential, in 
 order to ascertain whether thie assessors have by 
 personal inspection and comparison of the con- 
 sents and assessment roll determined that con- 
 sents have been signed by the requisite number 
 of taxpayers, to make the assessors parties, and 
 the writ may properly be directed to the 
 assessors, commissioners and county clerk, all of 
 whom have acts to perform in connection with 
 bonding a town. lb. 
 
 32. The act of a ministerial officer can be 
 reviewed on certiorari only when it is connected 
 with the judicial action of some other officer, 
 and its review is necessary to enable the court 
 to grant the appropriate relief. lb. 
 
 33. It is no reason for quashing the writ that 
 the persons to whom it is directed are at the 
 time out of office. lb. 
 
 34. — of village trustees. Mere irregularities 
 in the proceedings of village trustees in submit- 
 ting to the electors the question of incurring a 
 debt for a public improvement, as authorized by 
 statute, which are merely executive or minister- 
 ial acts, cannot be corrected by certiorari. Sup. 
 Ct., 1874, People ex rel. Faulkner y. Trustees of the 
 village of Dansville, 1 Hun, 593. 
 
 in. What questions eeviewablb. 
 
 36. Assessments. Upon certiorari to review 
 the proceedings of commissioners of taxes in the 
 assessment of property, the court will not inter- 
 fere with the valuation except so far as the com- 
 missionersliave disregarded legal rules, or adopt- 
 ed erroneous principles in fixing the value. Sup. 
 Ct, 1873, People ex rel. Broadway and Seventh 
 Av.R. R. Co. V. Commissioners of Taxes, ^c, of 
 N. Y. City, 46 How. 227. 
 
 86. Only an extraordinary case will justify 
 the review on certiorari of the determination 
 of assessors on the proofs presented before 
 them, as to the value of property assessed ; but 
 if they place upon the roll exempt property, or 
 personal property, the situs of which is in an- 
 other State, and refuse, upon application of the 
 person aggrieved, to strike it out, then their ac- 
 tion can be reviewed by certiorari. Com. App., 
 1872, People ex rel. Westhrook v. Trustees of the 
 Village of Ogdenshurgh, 48 N. Y. (3 Sick.) 890. 
 
 37. Neither a departure by assessors from the 
 statute standard of value, as to the property 
 placed upon the roll, nor their failure to assess 
 the property of a corporation as required, can 
 be corrected upon certiorari, although the court 
 might review the assessment as made, and di- 
 rect a new assessment. Ct. App., 1872, People 
 ex rel. Marsh v. Delaney, 49 N. Y. (4 Sick.) 655. 
 
CERTIORARI. 
 
 131 
 
 88. Proceedings for bonding town. On 
 
 a return to a certiorari, the court determines 
 whether the officer or body making it acquired 
 jurisdiction to do the act, or make the deter- 
 mination complained of, and has conformed to 
 tlie statute authorizing him or it to act. Sup. 
 Ct., 1873, People ex rel. Akin v. Morgan, 65 Barb. 
 473. 
 
 39. Upon certiorari to review proceedings for 
 bonding a town in aid of a railroad, under acts 
 authorizing a railroad company to build certain 
 branches, and the towns through which such 
 branches run to bond themselves in aid thereof, 
 unless it appears that the directors of the com-" 
 pany have located a branch through a town, or 
 at least determined to exercise their privilege of 
 doing so, the proceedings should be vacated for 
 want of authority in the town to bond itself in 
 aid of such road. S. C, 55 N. Y. (10 Sick.) 
 587. 
 
 40. Upon certiorari to review the proceedings 
 of a county judge upon a petition for bonding 
 a town in aid of a railroad, where the relators 
 make no question in their affidavit or complaint 
 as to the eligibility of the persons selected as 
 commissioners to issue the bonds, and the writ 
 does not call for any return on which that ques- 
 tion can be examined, and the return fails to 
 show anything on the subject, except that the 
 judgment or order of the county judge states 
 that they are freeholders, taxpayers and resi- 
 dents of the town, that question cannot be 
 raised. Sup. Ct., 1871, People ex rel. White v. 
 Hulbert, 59 Barb. 446. 
 
 41. Decision of fence viewers. The de- 
 cision of the fence viewers is made final by the 
 Revised Statutes, and, on certiorari, the court is 
 restricted to the consideration of the question 
 of jurisdiction, and will not presume facts to 
 exist which take away their jurisdiction. Sup. 
 Ct., 1874,.Pcon/e ex rel. Foote v. Dewey, 1 Hun, 
 529. 
 
 42. Evidence and questions of law. 
 Upon common-law certiorari it is the duty of the 
 court to examine the evidence, to see whether 
 there was competent proof of the facts neces- 
 sary to authorize the adjudication made, and 
 whether, in making it, any rule of law affecting 
 the rights of the parties has been violated ; but 
 it will not review the decision of a mere ques- 
 tion of fact, upon the weight of evidence. Sup. 
 Ct., 1874, People ex rel. Commissioners of Public 
 Charities, etc. v. Sanders, 3 Hun, 16. 
 
 43. The question of the competency of a wit- 
 ness, whose testimony was received at the trial 
 without objection, cannot be raised upon cer- 
 tiorari, lb. 
 
 44. Invalidity of contract. Upon certiorari 
 to review proceedings of the common council 
 of a city in assessing the expense of a bridge 
 upon the parties benefitted, the court will not 
 consider the question of the validity of the con- 
 tract for building the bridge. Sup. Ct., 1871, 
 People ex rel. Butts v. Common Council of the City 
 of Rochester, 5 Lans. 142. 
 
 45. Jurisdiction. Under the common law 
 writ of certiorari courts have always reviewed 
 and examined the acts, proceedings and deter- 
 minations of inferior tribunals or bodies to 
 which the writ was sent, so far as to see whether 
 they have kept within their powers ; and if they 
 have acted altogether contrary to those powers, 
 or exceeded them in any material particular, 
 that is sufficient ground for reversing their acts 
 or determinations. Sup. Ct., 1871, People ex rel. 
 E. Sr G.V. R.R. Co. V. Tubbs, 59 Barb. 401. 
 
 46. Removal of teacber. Upon certiorari 
 
 the court cannot overrule or nullify the decision 
 of the Board of Education of New York City, 
 on appeal from the action of school trustees in. 
 removing a teacher, inasmuch as the power of 
 that board is discretionary and not obligatory. 
 Sup. Ct., 1874, People ex rel. Murphy v. Board of 
 Education of the City of New York, 3 Hun, 177. 
 
 47. Title to office. The title to office of 
 persons acting as polite justices in the City of 
 New York, with color of title, cannot be ques- 
 tioned upon certiorari to review a judgment ren- 
 dered by them. Sup. Ct., 1874, Coyle v. Sher- 
 wood, 1 Hun, 272. 
 
 IV. Practice. 
 
 48. Writ, how granted. A common law 
 writ of certiorari cannot be allowed by a judge 
 at Chambers, but must be applied for and grant- 
 ed in open court, either at General or Special 
 Term. Sup. Ct., 1874, People ex rel. Kilmer v. 
 McDonald, 2 Hun, 70. 
 
 49. The objection that the writ was improper- 
 ly awarded by a judge at Chambers, may be 
 considered upon a return and hearing on the 
 merits ; and it is not waived by allowing a mo- 
 tion to be made for an amended return without 
 moving to quash. lb. 
 
 50. Effect of. A statute passed subsequent to 
 the issuing of a writ of certiorari to review the 
 proceedings of commissioners of appraisal, which 
 purports to legalize such proceedings, cannot af- 
 fect the right of the relator to a judicial deter- 
 mination of their legality. lb. 
 
 51. Wlien does not stay proceedings. 
 A writ of certiorari will not lie at the instance 
 of a private citizen to bring up for review the 
 proceedings of the county supervisors in com- 
 promising a judgment in favor of the county ; 
 but, if it would, it could not operate as a stay of 
 proceedings between the parties to the action, 
 or prevent their concluding such compromise. 
 Sup. Ct., 1871, Board of Supervisors of Orleans 
 Co. V. Bowen, 4 Lans. 24. 
 
 52. The time of limitation to writs of cer- 
 tiorari usually adopted by the court, has been 
 two years, in analogy to limitations on writs of 
 error ; and the fact that commissioners have 
 issued and delivered town bonds to a railroad 
 company affords no reason for shortening that 
 time, where it appears that the commissioners 
 and the company had notice of the defects al- 
 leged against the proceedings, and does not ap- 
 pear that the bonds have passed into the hands 
 of bona fide holders. Sup. Ct., 1874, People ex 
 rel. Corwin v. Walter, 2 Hun, 385. 
 
 53. Laches. If a party lies by for nearly two 
 years after the filing of an order of the commis- 
 sioners of highways laying out a road, and of 
 the report of the commissioners appointed to 
 assess the damages of those whose lands were 
 taken, and after the damages had been assessed 
 upon the town and paid over to the commission- 
 ers of highways, before obtaining a writ of cer- 
 tiorari to review the order, the court, will in its 
 discretion, quash such writ. Sup. Ct.. 1874, 
 People ex rel. Tompkins v. Landreth, 1 Hun, 
 544. 
 
 54. The common-law writ of certiorari is al- 
 lowed, and the remedy sought by it granted, in 
 the discretion of the court ; and where, after a 
 return is made to such writ, the court is satis- 
 fied, upon a hearing, that the writ was improvi- 
 dently issued, or that justice and equity, or a 
 regard to considerations of public policy or pub- 
 lic inconvenience require such a decision in re- 
 spect to it, they will dismiss the writ without 
 
132 CHALLENGE TO JURORS— CHATTEL MORTGAGE. 
 
 passing upon the merits or questions designed to 
 
 be raised by it for review. Sup. Ct., 1878, 
 
 , People ex rel. Curtiss v. Common Council of the Citv 
 
 of Utica, etc., 45 How. 289 ; S. C, 65 Barb. 9. " 
 
 55. A writ issued to review and set aside pro- 
 ceedings of the common council in regulating, 
 grading and paving a street, for irregularities, 
 nearly two years after such proceedings were 
 commenced, and after most of the assessments 
 therefor liad been paid, dismissed on the ground 
 that the relators were estopped by having so 
 long laid by, with Isnowledge tliat the work was 
 being done, from afterwards objecting to the 
 irregularities. lb. 
 
 56. Reargnmeut. Where a certiorari has been 
 quashed for a reason which is afterwards found 
 to be mistaken, a reargument may be ordered. 
 Sup. Ct., 1874, People ex rel. Kilmer v. McDonald, 
 2 Hun, 601. 
 
 67. Reversal. Where the jurisdiction of an 
 inferior tribunal depends upon facts to be proven 
 before itself, the return must show the proofs of 
 such jurisdictional facts, or the proceedings will 
 be reversed. Ct. App., 1872, People ex rel. Allen 
 V. Knowles, 47 N. Y. (2 Sick.) 415. 
 
 58. Wliere, after the institution of proceed- 
 ings under the act of 1869, for the issue of town 
 bonds in aid of a railroad company, and before 
 hearing on certiorari to review the same, a new 
 assessment roll and tax list have been made up, 
 the case will not be remanded to the county 
 judge under chapter 925 of the Laws of 1871, for 
 a rehearing. lb. 
 
 59. Vacation of assessment. The court 
 will not, on certiorari, vacate an entire assess- 
 ment for a local improvement, a part of which 
 was legal, merely because it includes the cost of 
 work not petitioned for, unless it appears that 
 the provisions of the statutes for the reduction 
 of unlawful assessments (chapter 483, Laws 
 1871 ; chapter 383, Laws 1858), are insufficient 
 to correct the errors complained of. Sup. Ct., 
 1873, People ex rel. Meeker v. City ofBrooUyn, 14 
 Abb. N. S., 115. 
 
 CHALLENGE TO JXJEORS. 
 See CuiMiif AL Law ; Peacticb. 
 
 CHAMPERTY. 
 
 See CONTKAOT. 
 
 CHANCERY. 
 See Equiit ; Fraciioe. 
 
 CHARACTER. 
 See Etisence ; Libel ; Slanseb 
 
 CHARGE TO JURY. 
 See FsACiiCE. 
 
 CHARITABLE ASSOCIATIONS. 
 
 1. Expelling members, A benevolent or 
 charitable society has no right to expel a mem- 
 ber, merely because he does not appear to an- 
 swer charges against him, after notice to do so, 
 without requiring proof of- such charges. iSiip. 
 Ct., 1873, People ex rel. Corrigan v. Young Men's. 
 Father Matthew Ben. So^ 65 Barb. 357. 
 
 CHARITABLE USES. 
 See Will. 
 
 CHARTER PARTY. 
 
 1. Constructdoa. The charterer having by 
 his charter party agreed to furnish a full cargo 
 for the vessel, to be delivered in the manner 
 customary at the place of loading, lighterage, if 
 necessary, to be paid by him, — Held, in an ac- 
 tion by the owner to recover full freight, that a 
 delivery of a full cargo at a wharf where, by 
 reason of the insufficiency of water, it was im- 
 practicable for the vessel to take on the whole, 
 though by the use of lighters, which were re- 
 fused, the loading might have been completed, 
 was not a performance, although the " custom- 
 ary " way of loading at that place was at the 
 wharf. Ct. App., 1871, Nelson v. Odiome 45 N. 
 Y. (6 Hand,) 489. 
 
 2. Rights of parties. A charter party stipu- 
 lated for the payment of freight on delivery of 
 the cargo " less advances made to the master at 
 port of loading," and also provided for an ad- 
 vance by the charterer at such port of cash for 
 the ship's ordinary disbursements. The master, 
 on the homeward voyage, sold the wBole cargo 
 and broke up the voyage, — Held, that the char- 
 terer was entitled to recover the advances made 
 by hiqi from the owners, and that the acceptance 
 by him of the proceeds of the sale did not affect 
 the right. Ct. App., 1872, Beatson v. Elwell, 49 
 N. Y. (4 Sick.) 678. 
 
 CHATTEL MORTGAGE. 
 
 L What is ; validity 132 
 
 n. Rights of pakties 133 
 
 ni. ElLING ; PKIOEITT ; TRANSPEB AND 
 
 EXTINGUISHMENT 184 
 
 L What is; validity. 
 
 1. WJiat is. A chattel mortgage is a present 
 transfer of the title to property, subject to be 
 defeated on payment of the sum or instrument 
 it is given to secure, and, in default of perform- 
 ance by the mortgagor of the condition, the title 
 of the mortgagee becomes absolute. A mere 
 receipt declaring the property mentioned in it to 
 be held by the signer in store for another sub- 
 ject to his order, as security for the note of the 
 former, is not a chattel mortgage but an agree- 
 ment for a pledge. Com. App., 1873, Parshall v. 
 Eggart, 54 N. Y. (9 Sick.) 18 ; Rev'g, 52 Barb. 867. 
 
 2. A receipt for goods given to the owner at 
 whose factory they are stored by his superin- 
 tendent, and by the former indorsed to a bank 
 as security for a loan, becomes, as between such 
 owner and the bank, a chattel mortgage ; and 
 
CHATTEL MORTGAGE. 
 
 133 
 
 the possession of the goods remaining un- 
 changed, it must, to render it valid as against 
 subsequent attaching creditors, be recorded. 
 Ct. App., 1871, Yenni v. McNamee, 45 N. Y. (6 
 Hand,) 614. 
 
 3. The delivery of a chattel to a creditor, ac- 
 companied_by a writing whereby the debtor 
 agrees to give up all claim to the property if all 
 claims due his creditor are not paid by a day 
 certain, is a mortgage and not a pledge ; and, 
 upon failure of the condition, the title passes 
 absolutely to the creditor, subject, however, to 
 the right of the debtor, which cannot be waived 
 by any prior agreement, to bring an action in 
 equity to redeem. N. Y. C. P., 1870, Bunacleugh 
 V. Poolman, 3 Daly, 236. 
 
 4. Validity. A mortgagee is not affected by 
 the fraud of the mortgagor as against other cred- 
 itors, unless he was a party or privy to it, and 
 received his mortgage with intent to hinder, de- 
 lay or defraud such creditors. Sup. Ct., 1874, 
 Smith V. Post, 1 Hun, 516. 
 
 5. If a mortgage is made to two persons, to 
 secure distinct debts due to them severally, the 
 knowledge and fraudulent intent of one of them 
 wiU not affect the rights of the other ; but the 
 mortgage will be void as to the one and good as 
 to the other. lb. 
 
 6. Of after acquired property. A clause 
 in a chattel mortgage of a stock of goods, pro- 
 viding that it should be " a continuing lien and 
 security upon stock or goods to be hereafter 
 brought into the store," — Held, not to render the 
 mortgage fraudulent, where it was found that 
 the mortgage was given in good faith, and not 
 with intent to hinder, delay or defraud creditors, 
 and that no arrangement was made authorizing 
 the mortgagor to sell or deal with the stock, and 
 the mortgagee had no knowledge of any such 
 sales. Ct. App., 1874, Yates v. Olmsted, 56 N. 
 Y. (11 Sick.) 632 ;M:d'fg S. C, 55 Barb. 43. 
 
 7. Of chattel subject to maker's lien. A 
 mortgage of a wagon contracted to be made for 
 the mortgagor, and partly paid for, but still in 
 the hands of the manufacturer and subject to 
 his lien", gives to the mortgagee an interest in 
 such wagon to the extent of the amount paid by 
 the mortgagor on the purchase price, and if the 
 manufacturer's lien is extinguished by payment 
 by a purchaser from the mortgagor, the mort- 
 gage becomes a first lien on the property and 
 may be enforced by a sale thereof. N. Y. Supr. 
 Ct., 1873, Reuscher v. Klein, 35 N. Y. Supr. 446. 
 
 8. Of rolling stock. As between the mort- 
 gagees and judgment creditors of a railroad 
 company, its rolling stock is to be considered as 
 personalty ; and, to preserve the lien of a mort- 
 gage thereof, where there is no change of pos- 
 session, it must be filed as a chattel mortgage. 
 Reynolds, C, dissents. Com. App., 1873, Hoi/le 
 V. Plattsburgh S/- Montreal R. R. Co., 54 N. Y. (9 
 Sick.) 314 ; Rev'g S. C, 51 Barb. 45. 
 
 9. At mostj a railroad corporation can only 
 be deemed resident in all the towns in which 
 any part of its line is located, and a filing in each 
 of those towns will justify any possible view of 
 the requirements of the law. lb. 
 
 10. Of stock in trade and increase. A 
 chattel mortgage of the mortgagor's whole stock 
 in trade, in his grocery store, " with the increase 
 and decrease thereof , "and other property, provid- 
 ing for the continuance of possession in the mort- 
 gagor, is void on its face, as attempting to create 
 a lien upon future acquisitions ; and it is wholly 
 void, not only as to the stock in trade, but as to 
 the other property. Ct App., Miltnackt v. Kdly, 
 46 How. 457. 
 
 11. tTsurious. A chattel mortgage may be 
 avoided for usury by a judgment and execution 
 creditor of the mortgagor. Sup. Ct., 1871, 
 Carow V. Kelly, 59 Barb. 239. 
 
 12. Possession. If property included m a 
 chattel mortgage is at the time in pos8ession_ of 
 a third party, immediate change* of possession 
 is not necessary. Sup. Ct., 1874, Smith v. Post, 
 1 Hun, 516. 
 
 13. A provision in a mortgage, that in case of 
 default in payment, or in case the mortgagee 
 shall at any time deem himself unsafe, he may 
 take possession of the property and sell it, is for 
 the benefit of the mortgagee ; and, under it, he 
 can take possession when tliere is a default, or 
 when in his judgment he deems it best for the 
 safety of his demand ; and no proof is necessary 
 to show that he considers himself unsafe when 
 he does so, that being presumed. lb. 
 
 n. Eights of parties. 
 
 14. Possession after default. If after 
 default in payment of a chattel mortgage 
 on a canal boat, the mortgagee accepts 
 further security, and in consideration there- 
 of agrees that the mortgagor may retain 
 possession until he has made the trip then com- 
 menced, such agreement is founded on a good 
 eonsideratioii and valid, and the mortgagee is 
 thereby precluded from enforcing the mortgage 
 by depriving the mortgagor of possession before 
 sufficient time has elapsed for him to complete 
 his trip. Sup. Ct., 1872, Audas v. Nelson, 64 
 Barb. 362. 
 
 15. Redemption. Upon default in the pay- 
 ment of the debt which is secured by a chattel 
 mortgage, or of any instalment thereof, when 
 due, the title to the mortgaged property becomes, 
 eo instanti absolute in the mortgagee, and tlie 
 only right remaining to the mortgagor is that of 
 redemption. Sup. Ct., 1873, Halstead v. Swai-tz, 
 46 How. 289. 
 
 16. This right of redemption may be barred 
 by a sale of the property in pm-suance of the 
 mortgage. lb. 
 
 17. In order to redeem after default in pay- 
 ment of one instalment only, where the debt is 
 payable in instalments, the mortgagor must pay 
 or tender the whole debt, and not merely such 
 instalment. lb. 
 
 18. Rights of mortgagee. A mortgage of 
 chattels is a sale upon condition, vesting the 
 legal title in the mortgagee, subject to the 
 mortgagor's right to regain it by performing the 
 condition. N. Y. Supr. Ct., 1872, Porter v. 
 Parmly, 43 How. 445 ; S. C, 34 N. Y. Supr. (2 
 J. & Sp.) 398 ; 13 Abb. N. S. 104 ; Rev'd S. C, 
 14 Abb. N. S. 16 ; 52 N. Y. (7 Sick.) 185. 
 
 19. Upon breach of the condition, the legal 
 title becomes absolute in tlie mortgagee, and lie 
 may take possession and treat the property as 
 his own, and as a satisfaction of the debt ; but 
 the mortgagor has still an equity of redemption, 
 which can only be extinguished by a fair and 
 ionoyide sale under the power of sale, or by a 
 judicial foreclosure. lb. 
 
 20. Before default, the mortgagor being in 
 possession, may sell and deliver the property, 
 and the purchaser will take his interest, subject 
 to the mortgage ; but after default, he can only 
 transfer his possession with his equity of re- 
 demption, and the mortgagee may at any time 
 take the property out of the possession of the 
 purchaser. lb. 
 
 A sale with intent to defraud is a misdemeanor. 
 Chapter n. Laws of 1871.. 
 
134 
 
 CHATTEL MORTGAGE. 
 
 21. Until default, the mortgagor has such a 
 possessory right and right of redemption, as 
 may be levied on and sold upon execution ; but 
 after default, even though he is permitted to re- 
 main in possession, he has no right or interest 
 which is subject to sale on execution against 
 him. lb. 
 
 22. The title of a mortgagee of chattels, upon 
 default in payment, becomes absolute in law as 
 against the mortgagor or his assignee, and his 
 right of possession perfect. Ct. App., 1874, Jud- 
 son V. Easton, 58 N. Y. (13 Sick.) 664. 
 
 23. The fact that tlie lessees of a canal boat 
 use her part of the time upon tlie ocean gives 
 them no additional right or title, as against a 
 mortgagee thereof, to what they would have 
 did they employ her constantly upon the waters 
 and canals of this State. lb. 
 
 24. The title of a mortgagee of chattels, upon 
 default, beoomes absolute, subject only to the 
 power of a court of equity to permit redemption. 
 N. Y. Supr. Ct., 1869, Lambert v. Leland, 2 
 Sweeny, 218. 
 
 25. In such case, the mortgagee holds by vir- 
 tue of the conveyance contained in the mort- 
 gage, and by no other title. The substitution 
 of a bill of sale for the mortgage and cancella- 
 tion of the latter, renders such title subject to 
 that of subsequent mortgages on the proper- 
 ty, lb.. 
 
 26. Under a chattel mortgage to secure pay- 
 ment of a certain sum in instalments, whi^ 
 provides tliat in case " default be made in the 
 payment of the sum above mentioned," then it 
 sliould be lawful for the mortgagee to take the 
 property, but until " default be made in the pay- 
 ment of the said sum of money " the property 
 should remain in tlie peaceable possession of the 
 mortgagor, the mortgagee has the right to take 
 possession of the property on non-payment of 
 the first instalment, that being a default with- 
 in the meaning of such provision ; and if tlie 
 property is levied on by attachment against the 
 mortgagor after such default, tlie mortgagee can 
 recover it back by action of claim and delivery 
 against the slieriff. N. Y. Supr. Ct., 1873, 
 WUiis V. O'Brien, 35 N. Y. Supr. (3 J. & Sp.) 
 636. 
 
 27. Sede. Under a chattel mortgage author- 
 izing the mortgagee, in case of default, to take 
 possession of the property and sell at public or 
 private sale, &c., he may upon default sell at 
 private sale, without notice to tlie mortgagor, and 
 a fair and bona fide sale so made will bar the 
 mortgagor's right of redemption. Sup. Ct., 1871. 
 Ballou V. Cunningham, 60 Barb. 425. The con- 
 trary decision reported 4 Lans. 74, said to be a 
 dissenting opinion, 61 Barb. 636. . 
 
 28. Such a sale for less than the value of the 
 property, if fairly made, does not render the 
 mortgagee liable for its full value. lb. 
 
 29. Tender on prior mortgage. A ten- 
 der of payment of a prior mortgage by a sub- 
 sequent mortgagee, after the prior mortgagee has 
 taken possession of the property on default, 
 does not reinstate the title of the mortgagor, 
 80 as to enable the second mortgagee to main- 
 tain an action for the recovery tliereof ; nor 
 will the failure of the prior mortgagee to state 
 the source of his title when such tender is made 
 estop liim from asserting any title he has. Ct. 
 App., 1875, Campbell v. Birch, 60 N. Y. (15 
 Sick.) 214. 
 
 III. FiLINO ; PRIOKITT ; TRANSFER AND EX- 
 TINGUISHMENT. 
 
 30. Piling. A chattel mortgage handed to the 
 
 county clerk, while absent from his o£Sce, to be 
 filed therein, though endorsed by him as filed of 
 the hour when delivered, does not become 
 effective as against creditors, until actually 
 taken to and deposited in the office. Com. 
 App., 1873, Hathaway v. Howell, 54 N. Y. (9 
 Sick.) 97. 
 
 31. Refiling. Where an original chattel mort- 
 gage has been duly filed in the proper clerk's 
 office, within the time prescribed by the statute, 
 the refiling of such original within thirty days 
 before the expiration of one j'ear, with a state- 
 ment indorsed thereon showing the interest 
 in tlie property claimed by the mortgagee, is 
 equivalent to filing " a true copy," as required 
 by the terms of section 3, chapter 279, 
 Laws of 1833 (4 Edm. Stats. 67), and a sufficient 
 compliance with its requirements to continue 
 the validity of tlie mortgage as against creditors 
 of the mortgagor, and mortgagees and purchas- 
 ers in good faith. Sup. Ct., 1874, Stockham v. 
 Allard, 2 Hun, 67. 
 
 32. Although a mortgagee of a canal boat files 
 a copy of his mortgage within thirty days of the 
 expiration of a year from the time of the first 
 filing, yet, if he fails to file with it a statement 
 exhibiting his interest in the property as required 
 by chapter 412, Laws 1864 (6 Edm. Stats. 287), 
 his mortgage becomes invalid as against cred- 
 itors generally, and bona fide purchasers subse- 
 quent to such omission. Sup. Ct., Marsden v. 
 Cornell, 2 Hun, 449; AfE'd by Ct. App. 
 
 33. Such refiling cannot be treated as an orig- 
 inal filing, and the mortgage held good as 
 against purchasers ; neither can a refiling with 
 a proper statement of the mortgagee's interest 
 at the expiration of the second year, affect 
 the rights of an intermediate iona^rfc purchaser, 
 lb. 
 
 34. Actual notice oif the existence of the mort- 
 gage by a purchaser at the time of his purchase, 
 without notice of the amount due thereon, does 
 not make the purchase mala fides. lb. 
 
 35. The object of the statute in requiring the 
 refiling of a copy of the mortgage with an ac- 
 companying statement of the mortgagee's in- 
 terest, was to furnish creditors and subsequent 
 purchasers with fair and reasonable notice of 
 the rights of the mortgagee and of the amount 
 remaining unpaid ; and a statement made in 
 good faith with reasonable care, and substan- 
 tially correct and accurate is sufficient. A state- 
 ment that " the whole or nearly the whole 
 amount is unpaid and due," — Hdd, sufficient. 
 Sup. Ct., 1873, Patterson v. Gillies, 64 Barb. 563. 
 
 36. A mortgagee's rights as against creditors 
 may become impaired, and perhaps lost, by a 
 non-compliance with the statutory requirements 
 against fraudulent conveyances and mortgages 
 (2 R. S. 136), which are not repealed by the act of 
 1833 (4 Edm. Stats. 435), requiring chattel mort- 
 gages to be filed, and refiled at the expiration 
 of one year. N. Y. Supr. Ct., 1872, Barter v. 
 Parmly, 63 How. 445 ; S. C, 34 N. Y. Supr. (2 J. 
 & Sp.) 388 ; 13 Abb. N. S. 104. 
 
 37. Whether, as against the creditors of the 
 mortgagor, a refiling is necessary after default, 
 doubted. The cases on this subject examined, 
 lb. Held necessary, unless there is an actual 
 change of possession. S. C, 14 Abb. N. S. 16 : 
 52 N. Y. (7 Sick.) 185. 
 
 38. In a case where an actual change of pos- 
 session takes place after default, as where the 
 mortgagee delivers possession without removal' 
 to a partner of the morgagor, with the latter's 
 consent, it cannot be deemed fraudulent against 
 a creditor of the mortgagor, who had notice of 
 
CHECKS. 
 
 136 
 
 the mortgage, and whose demand did not hecome 
 merged into a judgment until after such change 
 of possession ; even though the year from the 
 filing of the mortgage had previously expired, 
 and it had not heen reflled, lb. Such delivery 
 to the mortgagor's partner, both partners contin- 
 uing to use the property, — Held, not an actual 
 and continued change of possession such as the 
 statute requires. S. C, 14 Abb. N. S. 16 ; 52 
 N. Y. (7 Sick.) 185. 
 
 39. A chattel mortgage does not become abso- 
 lutely dead upon the forfeiture of its conditions ; 
 and it is therefore necessary to refile it at the 
 expiration of the year to make it valid against 
 creditors, even after forfeiture, unless there is 
 an actual and continued change of possession. 
 lb. 
 
 40. A chattel mortgage once reflled within the 
 thirty days next preceding the expiration of 
 one year from the time it was first filed, contin- 
 ues valid without further refiling in subsequent 
 years. N. Y. Supr. Ct., 1872, Wisser v. O'Brien, 
 44 How. 209; S. C, 35 N. Y. Supr. (3 J. & Sp.) 
 149. S. P., Neiodl V. Warren, 44 N. Y. (5 Hand,) 
 244. But see ch. 501, Laws o/1873. 
 
 41. Priority. The lien of a shipwright, upon 
 a boat of which he retains possession, for repairs 
 necessary to put it in navigable condition, made 
 at the request of the owner, is prior to that of a 
 mortgage on the boat, executed, duly filed and 
 due before the repairs were ordered, where the 
 mortgagee has never been in possession. Sup. 
 Ct., 1872, Scott V. Delahunt, 5 Lans. 372. 
 
 ^. Transfer. The transfer of a promissory 
 note, which is secured by a chattel mortgage, 
 is, in law and equity, a transfer of the mort: 
 gage given to secure it, to the extent of the 
 amount of the note. Sup. Ct., 1874, Gould v. 
 Marsh, 1 Hun, 566. 
 
 43. A bona fide purchaser of such note, before 
 maturity, takes the mortgage, as well as the 
 note, free from equities to which it might have 
 been subject in the hands of the mor,tgagee. lb. 
 
 44. Where an over-due chattel mortgage, 
 given to secure a note, was assigned by the 
 mortgagee to enable the mortgagor to procure a 
 loan from the assignee, by an instrument which 
 purported to transfer all her right and title in 
 the mortgage to the assignee " until he is fully 
 paid," but the note was not transferred, — Held, 
 that if necessary to give effect to the assign- 
 ment, the assignee would be deemed to have ac- 
 quired an interest in the debt for which both 
 note and mortgage were securities, and that the 
 legal effect of the transaction was to transfer 
 the property mortgaged as security for his ad- 
 vances. Ct. App., 1875, Campbell v. Birch, 60 N. 
 Y. (15 Sick.) 214. 
 
 45. Sztingnlsbment. Payment of the debt 
 secured by a chattel mortgage after forfeiture, 
 if accepted by the mortgagee, extinguishes his 
 right in the property, and if lie afterward sell 
 it he is liable therefor. Ct. App., 1872, West v. 
 Crary, 47 N. Y. (2 Sick.) 423. 
 
 46. Even after forfeiture the mortgagor has 
 an equity of redemption. lb. 
 
 CHECKS. 
 
 1. A memorandum check, as distinguished 
 from a common check, is an unconditional 
 promise to pay the money therein mentioned, 
 presentment and notice of non-payment being 
 waived. Brooklyn City Ct., 1872, Tmnhull v. 
 Osborne, 12 Abb. N. S. 200. 
 
 2. Tlie word memorandum written across the 
 check is a part of the original contract itself, its 
 meaning being established by custom. It is not 
 an attempt to change an ordinary check on a 
 bank into something contrary to its legal effect, 
 lb. 
 
 3. The word memorandum written across the 
 face of a check does not affect its negotiability, 
 or the holder's right to immediate payment, al- 
 though it does indicate an understanding that it 
 is not to be presented at once, or while the 
 drawer has no funds in bank. lb. 
 
 4. As between the parties, the consideration 
 may be inquired into ; but if that is sufilcient, 
 and there is neither fraud nor mistake, the 
 drawer is liable as principal, and cannot qualify 
 his undertaking by proof of an oral agreement, 
 made at the same time, that a third person 
 should pay it. lb. 
 
 5. Presentment for payment, dishonor, and 
 notice thereof to the drawer, are necessary to 
 enable the holder to maintain an action against 
 the drawer of a bank check. Sup. Ct„ 1874, 
 Judd V. Smith, 3 Hun, 190. 
 
 6. Laches in presenting checks for payment 
 do not discliarge the drawer's liability upon 
 them. They can only afifect tlie question of in- 
 terest or of loss sustained by the failure of the 
 drawee, and, possibly, throw upon 1j|e holder 
 the burden of showing himself to be a bona fide 
 holder. N. Y. Supr. Ct., 1874, Woodin v. Frazee, 
 38 N. Y. Supr. (6 J. & Sp.) 190. 
 
 7. Stoppage of payment of a check will ex- 
 cuse presentment, and probably entitle the 
 holder to sue the drawee at any time. lb. 
 
 8. The holder cannot maintain an action 
 against the drawer upon the original debt with- 
 out surrendering or offering to surrender the 
 checks before or at the trial. lb. 
 
 9. CertificaUoa of. The certification of a 
 check by an assistant cashier of a bank, wholly 
 without authority and unsustained by prior 
 practice or usage, will not bind the bank, even 
 in favor of a bona fide holder of such check. Ct 
 App.,1874, Pope v. Bank of Albion, 67 N. Y. (12 
 Sick.) 126 ; Rev'g S. C, 59 Barb. 226. 
 
 10. Where such a check, drawn in February, 
 but dated March 1st, and having written on its 
 face, " Accepted, A. J.Chester A. Cash," was 
 cashed by the plaintiff in New York city, on the 
 morning of March 2d, before it could have 
 reached that city by ordinary course of mail, — 
 Held, that the plaintiff could not be deemed a 
 bona fide holder ; the facts that the acceptance 
 was not in the common form used by banks to 
 indicate funds on deposit to the amount of the 
 check, and that it appeared to be by a subordi- 
 nate ofiBcer, whose authority, or facts estopping 
 the bank from denying it, must be sliown, and 
 that it was offered him so soon after its date, 
 were sufficient to put him upon inquiry. lb. 
 
 11. By certifying a check, a bank obligates 
 itself to hold so much of the drawer's credit or 
 funds as may be required for that purpose for 
 its payment, when it shall be presented. Sup. 
 Ct., 1874, Stevens v. Com Exchange Bank, 48 
 How. 351 ; S. C, 3 Hun, 147. 
 
 12. If tlie holder of such check, while the 
 owner thereof, consents that a different applica- 
 tion or disposition be made of such funds, and 
 it is accordingly done, he cannot afterward 
 claim payment of the check ; nor can one to 
 whom it is afterward transferred without his 
 actually parting with value therefor, recover on 
 it. lb. 
 
 13. Where an accommodation check, payable 
 to order^of the payee, was presented to the 
 
136 
 
 CHILDREN— CIVIL DAMAGE ACT. 
 
 bank on which it was drawn by a third person, 
 without indorsement, and certified by it, but, 
 before its re-delivery thus certified, the drawer 
 directed the bank not to pay it ; — Hdd, tliat the 
 drawer had the right to countermand it, the 
 bank not having then become liable upon it, and 
 if, after such prohibition it paid the check and 
 deducted the amount from the drawer's account, 
 it was liable to him therefor. Sup. Ct., 1875, 
 Freund v. Importers and Traders Nat. Bank, 3 
 Hun, 689. 
 
 14. The certification of a check, like the ac- 
 ceptance of a bill of exchange, guarantees only 
 the genuineness of the drawer's signature. It 
 does not guarantee that the amount and the 
 name of the payee are the same as when orig- 
 inally drawn, whether such certification or ac- 
 ceptance be before or after an alteration. . N. 
 Y. Supr. Ct., 1873, Marine Nat. Bank v. Nat. 
 City Bank, 36 N. Y. Supr. (4 J. & Sp.) 470; 
 AfE'd, S. C, 59 N. Y. (14 Sick.) 67. 
 
 15. A drawee of a check, who certifies it after 
 the amount of it has been raised and the payee's 
 name altered, and afterward pays it, in igno- 
 rance of the alteration, can recover back the 
 money so paid, unless the circumstances are 
 such as to estop him from clainiing that the 
 payment was made under a mistake of fact. lb. 
 
 16. A b<|nk which pays a forged cheek drawn 
 upon it, to a bona fide holder for value, thereby 
 admits its genuineness, and cannot recover back 
 the money so paid. Sup. Ct. 1863, Salt Springs 
 Bank V. Syracuse Savings Inst., 62 Barb. 101. 
 
 17. A bank is bound to know whether the 
 pretended drawer of a check is or is not one of 
 its customers, and whether his account will jus- 
 tify the payment thereof, and is guilty of great 
 negligence if it pays a forged check, purporting 
 to be drawn by one not its customer and having 
 no account with it, which has upon its face a 
 forged acceptance by its own teller. lb. 
 
 18. Lost check. The owner of a lost check, 
 upon giving notice of the loss and tendering in- 
 demnity to the drawer, has an immediate right 
 of action against him as upon a lost instrument. 
 N. Y. Supr. Ct., 1873, Shipsey v. Bowery Nat.' 
 Bank o/N. Y., 36 N. Y. Super. (4 J. & Sp.) 501. 
 
 19. if such check is lost in course of transmis- 
 sion by a collecting agent, and it is necessary 
 to go through with the forms of demand and 
 protest, that duty rests on the owner and not on 
 the collecting agent. lb. 
 
 20. Bona fide holder. A person who has 
 not actually parted with something of value as 
 the consideration of a check received by liim, 
 cannot be protected as a bona fide holder. 
 Where he has parted with partial value only, lie 
 will be protected only to the amount of such 
 value. Sup. Ct., 1874, Stevens v. Com Exchange 
 Bank) 48 How. 351 ; S. C, 3 Hun, 147. 
 
 21. A promise to pay over tlie one six-hun- 
 dredth part of any profits which may be real- 
 ized bj' the promisor from a certain patent, in 
 consideration of the transfer of a check by the 
 promisee, is not a parting with value, which 
 will make him a bona fide holder, but the check 
 will be subject in his hands to all legal and 
 equitable defenses existing against it in the 
 hands of his indorser. lb. 
 
 22. A bank which, just before its failure, re- 
 ceives on deposit an accommodation check drawn 
 on another bank, and gives credit therefor on 
 its books to tlie payees, by whom it was depos- 
 ited but never drawn against, does not thereby 
 become a bona fide holder for value, and its as- 
 signee has no right of action thereon against the 
 accommodation drawers on refusal of the draweer 
 
 to pay it. Sup. Ct. Cir., 1875, Piatt v. Chapin, 
 49 How. 318. 
 
 CHILDREN. 
 See Infant ; Fabent and Chiij>. 
 
 CHOSE m ACTION. 
 See Action ; Absignuent. 
 
 CHUECH. 
 See Religious Cokporations. 
 
 CITIZENSHIP. 
 See Removal op Causes. 
 
 CIVIL DAMAGE ACT. 
 
 1. Application of. The act known as the 
 "Civil Damage Act" (chapter 646, Laws of 1873), 
 is constitutional and valid, and applies to those 
 who sell with as well as those who sell without 
 license. Sup. Ct., 1874, Baker v. Pope, 2 Hun, 
 556. S . P., Dubois v. Milter, 5 Hun, 332. 
 
 2. Right of action. The statute gives a 
 right of action against the vendor or giver of 
 liquor, only to one who has a right of action for 
 the injury also against the intoxicated person. 
 Sup. Ct., 1875, Bayes v. Phelan, 4 Hun, 733 ; per 
 contra, Jackson v, Brookins, 6 Hun, 530. 
 
 3. The statute makes the vendor or giver lia- 
 ble only for civil injuries caused remotely by the 
 sale or giving away of liquor by them. The 
 death of the intoxicated person is not a civil in- 
 jury, and the statute gives no right of action 
 therefor. lb. But see Jackson v. Brookins, 5 
 Hun, 530. 
 
 4. The action may be maintained by any one 
 who is injured in person, property or means of 
 support by any intoxicated person, or in conse- 
 quence of such intoxication,' and the right does 
 not depend upon the capacity or relation of the 
 person injured. Sup. Ct, 1875, Jackson v. 
 Brookins, 5 Hun, 530. 
 
 5. If death ensues, as tlie natural and legiti- 
 mate result of the intoxication, it is covered by 
 the language of the statute, as well as all other 
 injuries consequent upon such intoxication. lb. 
 
 6. If several persons become intoxicated and 
 engage in an affray, in which one of them is 
 killed, his widow, dependent upon him for sup- 
 port, may maintain an action under the statute 
 against the persons who sold the liquor causing 
 such intoxication. lb. 
 
 7. A joint action may be maintained, under 
 the act, against a tenant who sold the liquor and 
 his landlord ; but two or more persons who, 
 separately, at different times and places, sold 
 liquor to the same person, contributing to the 
 intoxication which caused the injury, cannot be 
 sued together. lb. 
 
 8. A person cannot be held liable under that 
 act for an injury caused by liquor sold previous 
 to its enactment. Sup. Ct, 1875, Dubois v. 
 Miller, 5 Hun, 332. 
 
CLAIM AND DELIVERY— CLOUD ON TITLE. 
 
 137 
 
 CLAIM AND DELIVERY. 
 
 1. wno can maintain action. A mort- 
 gagee of chattels, who is entitled to take posses- 
 sion thereof by reason of the failure of the 
 mortgagor to pay one or more instalments of the 
 money secured thereby when due, can maintain 
 an action of claim and delivery against a sheriff 
 who seizes the same by virtue of an attachment 
 against tlie mortgagor after such default. N. Y. 
 Supr. Ct., 1873, Willis v. O'Brien, 35 N. Y. 
 Supr. (3 J. & Sp.) 536. 
 
 2. A reversal of the judgment in an action in 
 which an attachment had been issued, annuls 
 the title acquired by the purchaser on execution 
 to the attached property, and entitles the owner 
 to recover it back in an action therefor. Sup. 
 Ct., 1872, Beinmiller v. Skidmore, 7 Lans. 161. 
 
 3. The owner of property sold on execution 
 against one who had merely a personal license, 
 to use it, can maintain an action to recover pos- 
 session tliereof from any one into whose posses- 
 sion it has come. lb. 
 
 4. Where the owner of a quantity of petroleum, 
 stored in tanks at his factory, took from his 
 superintendent a receipt therefor, indorsing and 
 delivering it to a bank as security for a loan, 
 and afterward with the consent of the bank, sold 
 and delivered a portion of the property still re- 
 maining at the factory to a third party, who 
 knew notliing of the receipt or its transfer, from 
 whom they were taken by a sheriff who had 
 made a levy after the transfer of the receipt, but 
 prior to the sale, — Held, that such third party 
 could not maintain an action against the sheriff 
 to recover the goods. Ct. App., 1871, Yenni v. 
 McNamee, 45 N. Y. (6 HanJ,) 614. 
 
 5. For vrhat action ■will lie. Replevin will 
 not lie to recover money, unless it exists in 
 specie, is specifically described, and the plaintiff 
 sliows himself entitled to the specific money 
 claimed ; nor, in such an action, can a recovery 
 be had as for money had and received. Com. 
 App., 1871, Soger v. Blain, 44 N. Y. (5 Hand,) 
 445. 
 
 6. It is well settled that an action lies for the 
 recovery of specific chattels, which were part of 
 the realty, but have been severed therefrom by 
 a wrong doer and converted to his use ; but, in 
 such case, a plaintiff whose only claim to the 
 property severed rests upon his interest in the 
 land from which it was taken, must show that 
 he was in the actual or constructive possession 
 thereof when the severance occurred ; and con- 
 structive possession can only arise upon a valid 
 conveyance. Ct. App., 1873, Johnson v. Elwood, 
 53 N. Y. (8 Sick.) 431. 
 
 CLAIMS TO REAL PROPERTY. 
 
 See Adverse Possession ; Dbtekminins 
 Claims, &o. ; Ejectment. 
 
 CLEARING HOUSE. 
 
 1. Rights' of parties. It is doubtful whether 
 checks paid through the N. Y. clearing house 
 and charged by the drawee to his customer are 
 paid, within the rule which charges the drawee 
 with the responsibility in case it mistakes its 
 drawer's signature. The rules of the clearing 
 house association require checks . received for 
 clearance to be credited to the sender' and 
 
 charged to the drawer, and their validity is not 
 open to dispute there, but must be settled by the 
 parties, who must receive and return disputed 
 checks to the sender on the same day, and he 
 must then reimburse the drawee. Sup. Ct., 
 1872, Stuyvesant Bank v. National Mech's. Bank- 
 ing Asso., 7 Lans. 197. 
 
 2. Repayment by the sender to the drawee of 
 the amount received from it through the clear- 
 ing house on a forged check, is a waiver of the 
 rule ; and such repayment after a delay of more 
 than one day in returning the checks, is a waiver 
 of the delay. lb. 
 
 3. 'Where the M bank received from the 
 plaintiff, whose agent it was, on different days 
 several forged checks, taken by the plain- 
 tiff from the forger on deposit, and credited 
 them to the plaintiff, and sent them to the clear- 
 ing house, where the M bank was credited and 
 the drawee charged with them, both being mem- 
 bers of the association. The drawee, without 
 noticing the absence of a private mark, under- 
 stood between it and its customer, the supposed 
 drawer, charged tlie checks to such customer," 
 but several days afterward, on receiving another 
 check, discovered the forgery, and on the same 
 day tendered all the checks to the M bank and 
 demanded payment, and was referred to the 
 plaintiff. The latter, having paid the forger's 
 drafts to the full amount of the checks, refused 
 to refund, and the M bank then gave the drawee 
 its own check for the last of the forged checks, 
 and the same with the other forged checks was 
 then sent by the drawee to the M bank through 
 the clearing house, and were all paid by it in 
 compliance with the clearing house rules, and 
 sent to and charged to tlie account of tlie plain 
 tiff. The plaintiff retained them and on the 
 next day tendered them to the drawee, and de- 
 miinded payment and was refused, and some 
 twenty days afterward sent them by its agent, 
 the M bank, through the clearing house to the 
 drawee, which paid them and immediately re- 
 turned them through the clearing house to the 
 M bank, with notice that if they were sent back 
 again, it would discontinue its exchange with 
 the M bank. The latter bank then returned and 
 charged them to the plaintiff, and assigned its 
 claim against the drawee to the plaintiff, which 
 brought suit thereon ; — Held 1. That the M 
 bank had waived any right that it might have 
 to treat the acts of the drawee as a payment of 
 the forged checks, and affirmed its acts in ob- 
 taining repayment ; 2. That the waiver was 
 not void for coercion ; 3. That the M bank, by 
 receiving the checks and passing them to the 
 credit of the plaintiff became the owner, and 
 was rightly treated as principal ; 4. Tlie plain- 
 tiff having given the M bank authority to act 
 for it under the clearing house rules, which re- 
 quired it to act as principal, was bound to third 
 parties by the acts of tlie M bank, and if the 
 bank acted without authority in refunding the 
 money, it was liable to its principal therefor. 
 lb. 
 
 CLOUD ON TITLE. 
 
 1. Invalid assessment. Equity will enter- 
 tain a complaint to remove a cloud on the title 
 caused by an invalid assessment, when its in- 
 validity can only be established by proof aliunde 
 the record. Sup. Ct., 1874, Marsh v. City of Brook- 
 lyn, 2 Hun, 142 ; Aff'd, 59 N. Y. (14 Sick.) 280. 
 
 2. To sustain an action to remove the lien of 
 
138 CODE— COMMISSION TO EXAMINE WITNESSES. 
 
 a municipal assessment upon lands as a cloud 
 upon the title, it must appear not merely that the 
 assessment proceedings are regular on their face, 
 and that the defect which makes them invalid 
 can be proved only by evidence de hors the 
 record, but that the defect will not necessarily 
 be disclosed in proceedings to enforce the lien, 
 lb. 
 
 3. Where the defect in the proceedings for an 
 assessment upon premises in the city of Brook- 
 lyn claimed to render them invalid was that the 
 premises, which were unoccupied, had been as- 
 sessed to a person not the owner, — Held, that 
 the fact as to ownership would necessarily be 
 disclosed in proceedings to enforce the lien, and 
 the action could not be sustained. lb. 
 
 4. Where the certificate and deed to be given 
 upon a sale of lands for an assessment are made 
 by law, presumptive evidence of the regularity 
 of all the proceedings and the legality of the 
 assessment, and extrinsic evidence would be 
 necessary to show its illegality, a party whose 
 land is liable to be sold on such illegal assess- 
 ment may maintain an action in equity to re- 
 move and prevent a cloud'on his premises, and 
 restrain the sale. Sup. Ct., Sp. T., 1872, Mann 
 V. Cityof Utica, 44 How. 334. 
 
 6. Wnere, pending the litigation, an act is 
 passed by the legislature on application of the 
 defendant city, confirming and legalizing the 
 assessment as if no informality or error had oc- 
 curred in making it, and declaring it a lien on 
 the property assessed, the complaint will be dis- 
 missed ; but if the plaintiff has previously es- 
 tablished by admissions of the pleadings and by 
 proof that he is entitled to some relief, he should 
 be allowed his taxable costs. lb. 
 
 6. Attachment. A levy upon a wife's land 
 of an attachment against her husband and tlie 
 filing of a notice of lis pendens, do nol prima facie, 
 and without the aid of concurring facts and cir- 
 cumstances to be added thereto by proof aliunde, 
 establish any interest in or title to her land, and 
 equity will not, therefore, interfere in her behalf 
 to discharge the attachment and vacate the lis 
 pendens as a cloud upon her title. N, Y. C. P., 
 1869, Mulligan v. Baring, 3 Daly, 75. 
 
 7. Recorded contract. The only effect of 
 recording a contract for the sale of land, under 
 the statutory provisions on that subject, it seems, 
 is to preserve the evidence and facilitate proof 
 thereof. It is not constructive notice to subse- 
 quent parchasers or incumbrancers, and hence 
 the vendor cannot maintain an action to cancel 
 it as a cloud on his title, after the purchaser by 
 laches has lost his right to enforce it. Ct. App., 
 1874, Soyd v. Schlesinger, 59 N. Y. (14 Sick.) 
 301. 
 
 8. Sheriff's certificate. A sheriff's cer- 
 tificate of sale for taxes on rents reserved, 
 being prima facie evidence only of the facts 
 contained in it, forms no cloud upon the owner's 
 title, where the proceedings necessary to be 
 shown by the purchaser are invalid ; and no 
 action will lie against the latter to remove the 
 same. Ct. App., 1871, Overing v. Foote, 43 N. 
 Y. (4 Hand,) 290. 
 
 9. Usurious mortgage. A mortgage, the 
 usurious character of which has been deter- 
 mined in a former~^uit, and appears by the 
 record thereof, is not such a cloud on title as to 
 make an action to remove it necessary. Its fore- 
 closure by advertisement would not convey a 
 good title, except to a bona fide purchaser at the 
 foreclosure sale, and that can be prevented by a 
 notice given at such sale. Sup. Ct., 1871, Bissell 
 v. Kellogg, 60 Barb. 617. 
 
 10. Who can sue to remove. An action 
 to remove a cloud on the title of land can be 
 maintained only by one who has an actual in- 
 terest in it at the time of commencing "his suit. 
 A grantor of land, having no longer an interest 
 therein, cannot maintain the action, «ven though 
 he may have warranted the title. Sup; Ct., 
 iSli, Phillips V. Mat/or, etc., of New York, 2 Hun, 
 212 ; Rev'd by Ct. App. 
 
 11. A former ow^ner of premises assessed 
 for a local improvement, who is bound to indem- 
 nify his grantee against the assessment, or to 
 remove it as a cloud on the title of the premises 
 conveyed, is a " party aggrieved," and can main- 
 tain a proceeding under section 1, chapter 338, 
 Laws of 1858, to vacate such assessment for 
 fraud or legal irregularity. Ct. App., 1875, In 
 matter of Phillips, 60 N. Y. (15 Sick.) 16 ; Rev'g 
 S. C, sub, nom. , Phillips v. Mayor, etc., of New 
 York, 2 Hun, 212. 
 
 12. A religious society, whose property is 
 exempt by law from taxation, can maintain an 
 action to have taxes assessed against such 
 property declared void, where the proceedings 
 are regular on their face, and extrinsic evidence 
 is requisite to show the invalidity of the tax. 
 Sup. Ct., 1875, Hebrew Free School Asso. v. 
 Mayor, etc., of New York, 4 Hun, 446. 
 
 CODE. 
 See Pleadiitg ; Pkaotioe ; Stathtes. 
 
 CODICIL. 
 See Wills. 
 
 COLLECTOR OF ESTATES. 
 
 See SUBBOQATE. 
 
 COLLECTOR OF TAXES. 
 See Taxes. 
 
 COLLISION. 
 
 See Neglioeitce. 
 
 COLOR OF OFFICE. 
 See Office. 
 
 COLOR OF TITLE. 
 See Adtekse Fosbession. 
 
 COMMISSION TO EXAMINE WITNESSES. 
 . See Deposition. 
 
COMMISSIONERS OF EMIGRATION— COMMON SCHOOLS. 139 
 
 COMMISSIONERS OF EMIGEATION. 
 
 1. Liability for baggage. The Commis- 
 sioners of Emigration are not liable, in their 
 official capacity, for loss of the baggage of emi- 
 
 f rants. N. Y. Supr. Ct., 1871, Samuels v. 
 tcDonald, 42 How. 860 ; S . C, 11 Abb. N. S: 
 844 ; 83 N. Y. Supr. (1 J. & Sp.) 211. 
 
 2. If, in consequence of the manner in which 
 and the circumstances under which the commis- 
 sioners have transacted their business, they are 
 liable as bailees without hire, they cannot be so 
 held without proof that the property came into 
 their possession, and that they were guilty of a 
 want of ordinary care, or of an actual appro- 
 priation to their own use. lb. 
 
 COMMISSIONERS OF HIGHWAYS. 
 See Highways. 
 
 COMMON CARRIERS. 
 See Cabriess. 
 
 COMMON COUNTS. 
 See Pleading. 
 
 COMMON PUIAS. 
 See Court of Common Fleas. 
 
 COMMON SCHOOLS. 
 
 1. PoTwer of trustees. A sole trustee of a 
 school district has power to contract with and 
 employ a teacher for a time beyond his own 
 term of office. A contract made by such a 
 trustee, just before his term of office expired, 
 employing a teacher for the term of one year, is 
 binding upon the successor in office, ^up. Ct., 
 1872, GiUis V. Space, 63 Barb. 177. S. P., Wait 
 V. Bay, 5 Hun, 649. 
 
 2. A trustee has no power to hire an unlicensed 
 teacher, but he may contract for the services of 
 one, making it a condition tliat such teacher 
 shall procure a certificate before entering upon 
 the duties of teaching. lb. 
 
 3. — in City of New York. The act of 1864 
 (p. 825), vests in the school trustees of a city 
 ward the power of removing teachers in the 
 public schools, subject only to the approval of 
 tlie inspectors ; and they can exercise that power 
 where they are satisfied as to the incompetency 
 of a teacher, with or without evidence. Sup. 
 Ct., 1874, People ex rel. Murphy v. Board of 
 Education of the city of New York, 3 Hun, 177. 
 
 4. It is not essential that the approval of the 
 inspectors be given at or before the meeting of 
 the board of trustees, but it is sufficient if given 
 in writing after the board has acted. lb. 
 
 5. The power of the board of education to 
 hear appeals from the action of the trustees in 
 removing teachers is discretionary and not ob- 
 ligatory, and the manner of investigating the 
 appeal is left wholly in the sound discretion of 
 
 the board. They are not bound to give a judicial 
 trial on sworn testimony. lb. 
 
 6. The trustees are to be presumed to have 
 notice of a stated meeting held pursuant to 
 their by-laws ; and a certificate of removal, 
 signed by a majority of the trustees, purporting 
 to have been unanimously adopted at a regular 
 meeting, is presumptive evidence that all, or at 
 least a quorum, were present. lb. 
 
 7. Selection of school. In a city not 
 divided into districts, where a board of educa- 
 tion has control of all the schools, an inhabitant 
 has no absolute right to select for his children 
 such school as he pleases, in disregard of the 
 regulations of the board. Sup. Ct. Chambers, 
 1872, People ex rel. Dietz v. Easton, 13 Abb. N. 
 S. 169. 
 
 8. The board have power, in their discretion, to 
 adopt rules for the admission of children and their 
 assignment between schools affording equal ad- 
 vantages ; and in tlie exercise of such discretion 
 they may lawfully assign one such school for 
 colored children, and exclude them from other 
 schools ; but will make themselves liable to an 
 action if they unlawfully exclude a child from a 
 school. lb. 
 
 9. Assessments. Where school district trus- 
 tees, pursuant to the provisions of section 68, 
 article 7, tit. 7, chapter 556, Laws of 1864, 
 assess taxable property in their district not 
 found upon the last town assessment-roll, a 
 failure to give notice to the persons interested, 
 in tile manner required of town assessors, as 
 provided in said act, is a jurisdictional defect, 
 and will £ivoid the assessment and render the 
 trustees personally liable for acts done in the 
 collection of the tax. Ct. App., 1874, Jewell t. 
 Van Steenburgh, 58 N. Y. 13 (Sick.) 85. 
 
 10. It seems that if the party assessed appears 
 and is heard in reference to the assessment, that 
 is a waiver of the want of notice, and he will 
 be bound by the assessment ; but in an actjon 
 against the trustees for trespass, no presumption 
 will be indulged that proper notice was given. lb. 
 
 11. Collector. The appointment of a school 
 district collector by the trustees of the district, 
 made by parol, does not vest the title of the 
 office in the appointee. The statute (Laws 1864, 
 Art. 3, Title 7, section 32, chapter 355 ; 6 Edm. 
 Stats. 332,) clearly requires the appointment to 
 be in writing, under the hands of the trustees. 
 Sup. Ct. Sp. T., 1871, Hamlin v. Dingman, 41 
 fiow. 132. 
 
 12. A parol appointment of such collector by 
 the sole trustee of a school district, the execu- 
 tion of the proper bond by the appointee, the 
 approval thereof by the trustee, and the de- 
 livery of the tax warrant to such appointee, 
 constitute him an officer de facto. lb. 
 
 13. Collector's liability. Until he has 
 given the bond required by section 83, chapter 
 655, Laws of 1864 (6 Edm. Stats. 344), the col- 
 lector has no power to execute a warrant for 
 the collection of a school tax ; and until the 
 trustees limit the time for giving the bond, and 
 determine the amount of its penalty, he will 
 not be in default. Sup. Ct., 1875, WoodhuU v. 
 Bohenblost, 4 Hun, 399. 
 
 14. The only remedy the trustees have against 
 the collector is by action on his bond ; 1st, when 
 he faUs to execute his warrant : 2d, when, by 
 his laches, any tax is lost to the district, or he 
 has neglected to pay over any balance in his 
 hands to his successor. They cannot maintain 
 an action against him for not paying over money 
 for which no order has been drawn upon and 
 presented to him. lb. 
 
140 COMPARISON OF HANDS— CONFUSION OF GOODS. 
 
 15. Action against collector. A person 
 whose property is seized by tlie collector under 
 tlie direction of the trustee of a school district, 
 for non-payment of a school tax, has a right, 
 under sections 1 and 2, tit. 12, chapter 555, 
 Laws of 1864 (6 Edm. Stats. 359), to appeal to 
 the superintendent of public instruction, and, 
 therefore, in a suit against the collector for such 
 seizure, he cannot recover costs if the court 
 certifies that it appeared that the defendant 
 acted in goodfaitli. Sup. Ct., 1874, Whitbeck v. 
 Billings, 1 Hun, 494. 
 
 16. Costs and expenses of suits. Suits 
 for penalties are expressly excluded from the 
 operation of section 8, tit. 13, chapter 555, Laws 
 of 1864, and an appeal will not lie to the county 
 judge from the refusal of a district meeting to 
 direct the assessment of a tax to pay the costs 
 and expenses incurred by a trustee in prosecut- 
 ing a scholar to recover a penalty for disturbing 
 the school, without any resolution of the district 
 authorizing such prosecution. Sup. Ct., 1871, 
 People V. Hatch, 60 Barb. 228. 
 
 COMPARISON OF HANDS. 
 See Evidence. 
 
 COMPENSATION. 
 See CoNSTiTTJTioNAi. Law. 
 
 1. Indirect injury. A landowner is not 
 entitled to compensation for indirect consequen- 
 tial injuries to the use of his own premises, not 
 actually and physically touched or taken, arising 
 from the lawful and proper erection of a public 
 work. Sup. Ct. Sp. T., 1872, Swett v. City of 
 Troy, 12 Abb. N. S. 100; S. C, 62 Barb. 630. 
 
 2. Thus, the owner of a foundry on a stream 
 relied upon for power to propel his machinery, 
 is not entitled to compensation for injuries in- 
 directly received from the lawful and proper con- 
 struction of a bridge above him on the stream 
 for public use, although it will to some extent 
 obstruct the channel. lb. 
 
 COMPETENCY OF WITNESS. 
 See Witness. 
 
 COMPLAINT. 
 
 See Pleading. 
 
 COMPOSITION WITH CBEDITOBS. 
 
 1. Undue advantage. Every agreement by 
 which a creditor signing a composition deed 
 secures to himself an undue or secret advantage 
 over the other creditors of his debtor, is a fraud 
 upon them, and is void. N. Y. C. P., 1876, Gil- 
 mour V. Thompson, 49 How. 198. 
 
 2. A creditor who insists upon and receives 
 from the debtor a note for an additional sum as a 
 condition of signing such a deed, cannot enforce 
 payment thereof, and if the debtor pays it to a 
 
 honafide holder to whom it has been transferred 
 before maturity, he can recover back the 
 amount paid in an action against such creditor. 
 lb. 
 
 8. Covenants in severalty. It is not 
 essential to the validity of a composition deed 
 that it should express the mutuality of all the 
 signers. One in which the creditors "severally 
 and each for himself agree with " the debtor to 
 release and discharge his debt, on payment of 
 a certain per centage, must be regarded as a 
 mutual agreement among all who sign it, to re- 
 linquish a part of their respective debts to the 
 debtor, and binding upon them all. N. Y. Supr. 
 Ct., 1872, Horstman v. Miller, 85 N. Y. Supr. 
 (3 J. & Sp.) 29. 
 
 COMPOUNDING OFFENCES. 
 See Cbiuinai. IiAw. 
 
 COMPROMISE. 
 
 1. By one or more partners. A com- 
 promise by two persons, who are jointly liable 
 with another as former partners, of -their share 
 of a partnership debt, made after the dissolution 
 of the partnership, does not, under chapter 257, 
 Laws 1838, (4 Edm. Stats. 450), discharge the 
 other partner from liability for his ratable 
 portion of the debt. Sup. Ct. Sp. T., 1873, 
 Saxton V. Dodge, 46 How. 467. 
 
 2. Where such compromise is made in Ohio 
 as to a debt on which an action is pending in 
 this State, its effect is to be determined by the 
 laws of this State. lb. 
 
 CONDITION PRECEDENT. 
 See Contracts ; Covenants ; Sales. 
 
 CONDITIONAL SALE. 
 
 See Sales. 
 
 CONDONATION. 
 See Maebiaqe and Divoscb. 
 
 CONFESSION. 
 See EviBENCB. 
 
 CONFUSION OF GOODS. 
 
 1. By freshet. If wood of different owners 
 is floated away by a freshet and so intermingled 
 as to be indistinguishable, the owners become 
 tenants in common of the whole ; and if one 
 gathers and takes possession of the whole, he 
 holds it subject to the right of the other to take 
 his portion, and is entitled to compensation for 
 his labor in taking care of it j but he cannot be 
 
CONSENT— CONSTITUTIONAL LAW. 
 
 141 
 
 held liable as for a conversion until demand and 
 refusal or actual conversion by him. Sup. Ct., 
 1872, Moare v. Erie Railway Co., 7 Lans. 39. 
 
 CONSENT. 
 See C0NTSA.C1 ; Mabbiaqe and Diyoboe. 
 
 CONSIDERATION. 
 See CoNTBAor j Sale. 
 
 1. Beneficial. An order to pay a certain 
 sum to a third party out of a fund not yet in 
 existence, must be supported by a consideration, 
 and that must be substantial and beneficial to 
 the drawer. A mere promise to pay him tlie 
 amount is insufficient, if, under it, he will never 
 have tlie use, benefit or enjoyment of anything. 
 N. Y. Supr. Ct., 1875, Risk;/ v. Smith, 89 N. Y. 
 Supr. (7 J. & Sp.) 137. 
 
 2. Forbearance does not form a considera- 
 tion for a promise where, although collateral 
 security was taken payable at a future day, it 
 was done without reference to extending the 
 time to tlie principal debtor. lb. 
 
 3. Neither is it a consideration, where it is 
 granted voluntarily and gratuitously, or the 
 request of a third person, and not as a part of 
 the contract and at the request of the promisor, 
 lb. 
 
 4. Payment of legal obligation. The 
 payment by a party sued upon a note, of the 
 costs of the action already accrued, furnishes 
 no consideration for an agreement by the holder 
 to extend the time of payment of the note ; nor 
 will such payment and agreement be a defense 
 to another action brought on the note before 
 the time agreed upon had expired. Ct. App., 
 1871, Parmelee v. Thompson, 45 N. Y. (6 Hand.) 
 58. 
 
 6. Security given. An agreement by a 
 creditor to take less than the face of his de- 
 mand, upon recevring security for the amount to 
 be paid, is founded upon a good consideration, 
 and is valid. Sup. Ct., 1874, Kahn v. Brown, 1 
 Hun, 244. 
 
 CONSIGNOR AND CONSIGNEE. 
 
 1. Liability for freight. A bill of lading of 
 a cargo of wheat, by the terms of which the 
 wheat was to be delivered "as addressed on the 
 margin, or his or their assignees or consignees, 
 on paying the freight and charges noted," and 
 which was addressed on the margin "Acct. T. L. 
 Baker, to City Bank," made the City Bank the 
 consignee, and upon acceptance and delivery of 
 the wheat it was liable for the freight. Com. 
 App., 1874, Davison v. City Bank, 67 N. Y. (12 
 Sick.) 81. 
 
 2. Where, on arrival of the cargo the cashier 
 of the bank directed it to be delivered at an 
 elevator subject to its order, saying that the 
 proprietors of the elevator would pay the freight, 
 and it was delivered accordingly, and such pro- 
 prietors paid part of the freight in money and 
 gave a check on New York for the balance, no 
 agreement being made that such check should 
 be received in payment, but the same was sent 
 forward and presented, and payment being re- 
 
 fused, the drawers were notified ; — Held, that the 
 acts of the cashier constituted an acceptance of 
 the wheat, and the bank was not discharged 
 from liability by the order to deliver at the 
 elevator, or the reference to its proprietors for 
 freight ; nor by the giving or receipt of the check, 
 the master of the vessel not being guilty of any 
 laches in respect thereto ; nor by the fact, not 
 appearing by the bill of lading nor known to the 
 master, that such bank was acting merely as 
 agents for another bank. lb. 
 
 3. Liability for deficiency. Where S & E, 
 doing business tlirough K, consigned tobacco to 
 0, who made advances thereon, and E, to secure 
 a debt due him, being authorized by S & E, to 
 draw on for any balance on the shipment in 
 his hands, drew on O for $1,000, whicli the lat- 
 ter accepted and charged to the account of S & 
 E, — Held, that K was not liable to for any 
 deficiency of the amount realized on the sale, to 
 repay his advances. Sup. Ct., 1874, Oxley v. . 
 King, 1 Hun, IIS. 
 
 4. Fledge by consignor. One to whom the 
 consignor of goods has transferred the bill of 
 lading as security for money advanced for the 
 purchase of the goods, can maintain an action 
 against tlie consignee for the proceeds thereof, 
 even though the latter may have made advances 
 or accepted drafts drawn against the consign- 
 ment, before notice that the bill of lading had 
 been transferred. N. Y. C. P. 1871, Indiana 
 National Bank v. Colgate, 4 Daly, 41. 
 
 CONSOLIDATION OE ACTIONS. 
 See Pkactioe. 
 
 CONSTITUTIONAL LAW. 
 
 i. CONSTKUCTION 141 
 
 II. Statutes, enactment of ; local and 
 
 PRIVATE, and TWO-THIKDS BILLS . . 142 
 
 in. Legislative powers 144 
 
 IV. Judicial powers 146 
 
 V. Impairino contracts or vested 
 
 RIGHTS 148 
 
 VI. Ex POST PACTO LAWS 148 
 
 VII. Eminent domain 149 
 
 VIII. Trial bt jury,; due process of law 150 
 IX. Corporations ; school fund ; 
 
 state finances ; taxation 152 
 
 X. Commerce and navigation 153 
 
 XI. Eights of citizens 154 
 
 XII. Officers ; election and appoint- 
 ment 164 
 
 1 Consteuotion. 
 
 1. In general. The established rules appli- 
 cable to the construction of statutes, that the in- 
 tent of law-makers is to be sought for, and when 
 discovered, is to prevail over the literal mean- 
 ing of the words of any part of the law ; that 
 this intent is to be discovered^ not alone by con- 
 sidering the words of any part, but by ascer- 
 taining the general purpose of the whole, and 
 by considering the evil existing which called 
 for the new enactment, and the remedy sought 
 to be applied ; and that when the intent of the 
 whole is discovered, no part is to be so con- 
 strued as that the general purpose shall be 
 thwarted, but all is to be made to conform to 
 reason and good discretion ; apply as well to 
 the construction of a constitution as to that of 
 statute law. A constitution is also to be held 
 
142 
 
 CONSTITUTIONAL LAW. 
 
 as prepared and adopted with reference to ex- 
 isting statutory laws, upon the provisions of 
 which in detail it must depend to be set in prac- 
 tical operation. Ct. App., 1872, People ex rel. 
 Jackson v. Potter, 42 How. 260; S. C, 47 N. Y. 
 (2 Sick.) 375. 
 
 2. Provisions made for apprehended contin- 
 gencies, or for occasional and temporary needs, 
 cannot be so interpreted as to clash with the 
 general design, but should be in harmonious 
 subserviance thereto; and they should give 
 way when they conflict with provisions which 
 are of usual and continuous and imperious ob- 
 ligation, and make a part of the essential frame- 
 work of the general plan. lb. 
 
 3. Strict. When the language of a prohibi- 
 tion in a written constitution is unambiguous 
 and the words plain and clear, its operation and 
 effect should not be extended by construction 
 beyond the fair scope of the terms employed, 
 merely because a restricted and more literal in- 
 terpretation might be inconvenient or impolitic, 
 or because a case may be supposed to be, to 
 some extent, within the reasons which led to its 
 introduction. Ct. App., 1872, Settle v. Van 
 Evrea, 49 N. Y. (4 Sick.) 280. 
 
 4. A thing within the intent of the constitu- 
 tion is, for all purposes, to be regarded as with- 
 in its words and terms ; and a legislative act in 
 evasion of the terms of the constitution, as prop- 
 erly interpreted, and frustrating its general 
 and clearly expressed or necessarily implied 
 purpose, is as clearly void as if in express terms 
 forbidden. Ct. App., 1873, People ex rel. Bolton 
 T. AlbeHson, 55 N. Y. (10 Sick.) Sa 
 
 5. The practical construction of a con- 
 stitutional provision by the legislature, con- 
 tinued for a number of years and acquiesced in 
 and acted upon by the executive and adminis- 
 trative departments of the government, without 
 being at any time questioned, is entitled to con- 
 trolling weight in its interpretation, and has al- 
 most the force of judicial exposition. Ct. App., 
 1874, People ex rel. Williams v. Dayton, 55 N. Y. 
 (10 Sick.) 367. 
 
 6. Adoption of constitution. The term 
 " adoption," as used in section 16, Art. 7, of the 
 constitution of 1867-8, which continues the ex- 
 isting County Courts, and the terms of the 
 judges thereof in office at its adoption, means 
 the time when it became fully and completely 
 adopted as a part of the constitution,*not when 
 it was adopted by vote of the people. Sup. Ct., 
 1871, People ex rel. Clark v. Norton, 59 Barb. 169. 
 
 II. 
 
 Statutes, enactment of ; local and 
 phivate, and two-thikds bills. 
 
 7. Local act. An act which provides that a 
 corporation of another State, while it shall have 
 an office and place of business in this State, 
 may sue and be sued the same as if they were 
 a corporation of this State, is not a private or 
 local act, for although the right to sue is a pri- 
 vate benefit, its liability to be sued the same as 
 a resident corporation is for the benefit of the 
 people at large. Sup. Ct. Sp. T., 1874, Fall 
 Brook Coal Co. v. Lynch, 47 How. 520. An act 
 which applies to or operates upon persons or 
 property beyond a particularJocality, or upon a 
 subject in which tlie people at large are inter- 
 ested, is not local. Sup. Ct. 1871, Healey v. Dud- 
 ley, 6 Lans. 115. 
 
 8. General provisions a local act. The 
 provision of section 6, chapter 583, Laws 1871, 
 
 -prohibiting the entry of judgments against the 
 City of New York, other than those upon issues 
 
 of law, except on the verdict of a jxiry, is not 
 void as being a general prevision in a local act; 
 but if it was so, it would prevail over the local 
 provisions of the bill. Sup. Ct., 1872, Lewen- 
 thal y.Mayar, etc., of New York, 5 Lans. 532 ; S. C, 
 61 Barb. '511. 
 
 9. Local provisions in general act. A 
 statute, embracing provisions of a private or 
 local character, not expressed in the title, is void 
 as to such provisions, notwithstanding they are 
 connected with others in the same act of a gen- 
 eral or public nature. Ct. App., 1870, People v. 
 Supervisors of Chautauqua, 43 N. Y. (4 Hand,) 10. 
 
 10. Such a statute is also, as to its local pro- 
 visions, unconstitutional, in tliat it embraces 
 more than one subject. lb. 
 
 11. When a local or private bill contains pro- 
 visions which apply to the whole State, it is not 
 necessary to its validity that the title should re- 
 fer to such provisions ; but when an act which ap- 
 plies to the State at large contains provisions of 
 a local or private nature, not disclosed in the 
 title, the latter provisions are unconstitutional 
 and void. Sup. Ct., 1873, People ex rel. Akin v. 
 Morgan, 65 Barb. 473. 
 
 12. Title ea^ressing subject. If the title 
 of a local or private act fairly and reasonably 
 announces the subject, and that is a single one, 
 and the various parts have respect or relate to 
 that subject, it sufficiently complies with Art. 
 3, section 16 of the constitution. Sup. Ct. Sp. 
 T., 1874, People ex rel. N. Y. g- H. k R. Co. 
 V. Havemeyer, 3 Hun, 97. S. P., People ex 
 rel. Davies v. Commissioners of Taxes of N. Y., 
 47 N. Y. (2 Sick.) 501. The constitution does 
 not require that the title shall be the most exact 
 expression of its subject possible. Ct. App., 
 1872, Matter of Mayer, 50 N. Y. (6 Sick.) 504. S. 
 P., People exrel. City of Rochester v. Briggs, id. 553. 
 
 13. A provision making the property of the 
 New York Hospital subject to taxation, con- 
 tained in chapter 875, Laws of 1869, entitled 
 " An act to make provision for the government 
 of the County of New York," which is the usual 
 title of the bill annually passed to enable the 
 supervisors to raise money by taxation and 
 otherwise for defraying certain expenses of the 
 county government, is sufficiently expressed in 
 the title of the bill, and was valid to effect the 
 purpose intended. Ct. App., 1872, People ex rel. 
 Davies v. Commissioners of Taxes of N. x., 47 N. 
 Y. (2 Sick.) 501. 
 
 14. The Act of 1872 (eh. 771) entitled "An 
 Act to amend the several acts in relation to the 
 city of Rochester," must be held to refer to the 
 municipal corporation of that name, and the 
 title expresses a subject comprehensive enough 
 to embrace all the details of a city charter. Ct. 
 App., 1872, People ex rel. City of Rochester v. 
 Briggs, 50 N. Y. (5 Sick.) 553. 
 
 15. In order to constitute a law an amend- 
 ment to a municipal corporation, it is sufficient 
 if its provisions effect the corporation In its gov- 
 ernmental capacity, without specifying that it is 
 an amendment ; therefore, those sections of the 
 act not specified as amendments in the act itself 
 are as valid and effectual as other parts which 
 are so specified. lb. 
 
 16. The authority conferred by section 20, of 
 that act upon the city railroad, to lay its track 
 upon the side instead of the center of the 
 avenue specified, is a mere incident to the im- 
 provement of the street, and should not be con- 
 strued as an independent subject. lb. 
 
 17. The provisions of section 25, authorizing 
 the Water Commissioners to contract with the 
 trustees of villages through which the water to 
 
CONSTITUTIONAL LAW. 
 
 143 
 
 the city is conducted, to supply sucli villages 
 with water, the annual expense thereof to be 
 levied by such trustees with their annual tax, 
 do not constitute an independent subject invali- 
 dating the act, but are incidental to the main 
 purpose and may serve as the means of attain- 
 ing it, and are therefore within the subject ex- 
 pressed, lb. 
 
 18. Although some provisions of an act are 
 unconstitutional, as not being expressed in the 
 title, yet if, by striking out all such, that which 
 is left is complete in itself, sensible, capable of 
 being executed and wholly independent of that 
 which is rejected, it must be sustained as con- 
 stitutional, lb. 
 
 19. The provision of section 7, chapter 58, 
 Laws of 1872, that assessments for sewer con- 
 structions shall not be vacated for an omission 
 to file a plan of sewerage, or for other irregular- 
 ities, unless in case of fraud, is sufSclently ex- 
 pressed by the title of that act, whicli embraces 
 the general subject of local improvements in 
 New York ; and such provision does not there- 
 fore invalidate the act. Ct. App., 1872, Matter 
 of Mayer, 60 N. Y. (5 Sick.) 504. 
 
 20. The insertion of the clause devolving upon 
 the comptroller, council and recorder of the city 
 of New York, the power and authority thereto- 
 fore vested in the common council relative to 
 assessment lists and tlie confirmation thereof, in 
 the act (ch. 308, Laws of 1861) entitled " An act 
 relative to contracts by the mayor, &c., of the 
 city of New York," does not render such act re- 
 pugnant to that provision of the constitution 
 which requires a local bill to embrace but one 
 subject, and that to be expressed in its title. 
 Ct. App., 1873, In the matter of Volkening, 52 N. 
 Y. 650. 
 
 21. The provisions of the act of 1873, entitled 
 " An act to secure better administration in the 
 police courts of the city of New York," (ch. 
 538, Laws of 1873), relative to the duties of the 
 Police Justices to be appointed under the act, 
 as well in connection with the Court of Sessions 
 as in reference to the police courts, are all em- 
 braced within the subject expressed by such 
 title ; and the act is not therefore repugnant to 
 the constitutional provision relative to private 
 and local bills. Church, Ch. J. and A1.I/EN, J., 
 dissent. Ct. App., 1874, Wenzler v. People, 58 
 N. Y. (13 Sick.) 516; People v. Morgan, id. 679. 
 
 22. The provision of chapter 876, Laws 1869, 
 prohibiting the common council of New York 
 from creating any new office, &c., is constitu- 
 tional and valid, although that is a local act ; it 
 being tlie purpose of that act to provide all the 
 moneys needed to carry on the municipal gov- 
 ernment and no more, and the limitation of ex- 
 penses being within that purpose. Ct. App., 
 1873, Sullivan v. Mayor, etc., of tlie city of New 
 York, 47 How. 491 ; S. C. 53 N. Y. (8 Sick.) 652 ; 
 Eev'g S. C, 45 How. 152. 
 
 23. The provisions of section 3, chapter 382, 
 Laws of 1870, prohibiting the Board of Supervi- 
 sors of the County of New York from creating 
 any new office or department, &o., are, it seems, 
 within the title of that chapter, " to make further 
 provision for the government of the County of 
 New York," and are constitutional. Sup. Ct., 1873, 
 Drake v. Mayor, etc., of New York, 7 Lans. 340. 
 
 24. Tlie provision of section 11 of tlie " act to 
 maj:e provision for the government of the city of 
 New York " (chapter 876 Laws 1869), restricting 
 the power of increasing salaries, is within the. 
 scope and title of that act. lb. 
 
 25 The title of cliapter 741, Laws of 1870, en- 
 titled "An Act to amend the Code of Proce- 
 
 dure," is sufficiently broad to cover provisions 
 relating to the jurisdiction or practice of any of 
 the courts of the state i and therefore does not 
 infringe the constitutional requirement in re- 
 spect to local hills, in that it contains a provision 
 extending the jurisdiction of the District Courts 
 of the city of New York. Ct. App., 1874, People 
 ex rel. Grissler v. Dudley 58 N. Y. (13 Sick.) 323. 
 
 26. The " act in relation to lines, recognizan- 
 ces and forfeitures " (chapter 383, Laws of 1861) 
 wliich declares the provision of chapter 815, 
 Laws of 1844, relative to summary judgments 
 on forfeited recognizances to be in force in the 
 city of New York, &c., is constitutional and 
 valid, as it embraces but one subject and that is 
 expressed in the title. Ct. App., 1874, People v. 
 Quigg and Same v. Florence, 59 N. Y. (14 Sick.) 83. 
 
 27. The act to improve and regulate the use 
 of the Fourth avenue in the city of New York 
 (chapter 702, Laws 1872), embraces but one 
 subject, and every section relates thereto, and 
 the title could not be made any more speeific 
 without incumbering it with details. Sup. Ct. 
 Sp. T. 1874, People ex rel: New York and Harlem 
 R. R. Co. V. Havemeyer, 47 How. 494. 
 
 28. The provision of the statutes of 1863, 
 (chapter 227), 1867 (chapter 586), and 1868 (chap- 
 ter 853), authorizing the appointment of official 
 papers for the public advertising, and limiting 
 their number, fall clearly within the general 
 subject of those acts as indicated in their titles, 
 which is the raising of means for the support of 
 the government of New York, and limiting the 
 expenditure thereof; and such acts are not, 
 therefore, in violation of the constitution. Ct. 
 App., 1872, In matter of Astor, 50 N. Y; (5 Sick.) 
 363. 
 
 29. The assessments for the several streets 
 provided for by chapter 812, Laws of 1872, en- 
 titled "An Act to confirm, reduce and levy cer- 
 tain assessments on the city of Brooklyn," do 
 not constitute separate subjects, so as to bring 
 that act within the prohibition of the constitu- 
 tion relative to private and local bills ; nor does 
 the use of the word " on " in such title imply 
 that the bill relates simply to assessments im- 
 posed upon the city at large. Ct. App., 1874, 
 In the matter of Van Antwerp, 56 N. Y. (11 Sick.) 
 261. 
 
 30. Although section 12 of said act, which 
 provides that certain streets specified shall be 
 repaved and kept in repair at the expense of the 
 city, contains a subject different from that ex- 
 pressed in the title, and is therefore void, yet 
 this does not invalidate the provisions embraced 
 in the subject which is expressed. lb. 
 
 31. Tlie act entitled "An Act to authorize the 
 village of Dansville to create a debt for the pur- 
 pose of bringing water into said village for pro- 
 tection against fires, and to amend the charter 
 of said village," (chapter 285, Laws 1873) is in 
 substance one to amend the charter of the vil- 
 lage, and its subject is fairly and reasonably an- 
 nounced by its title, and is a single one, and the 
 various parts relate thereto, and it is therefore 
 constitutional. Sup. Ct., 1874, People ex rel. 
 Faulkner v. Trustees of the Village of Dansville, 1 
 Hun, 593. 
 
 32. An Act entitled " An Act to revise the char- 
 ter of L. L City," if conceded to be a local act, 
 is not unconstitutional because it gives such 
 municipality necessary legislative, taxing, judi- 
 cial and police powers, all of those powers being 
 embraced within the subject exgressed by that 
 title. Ct. App., 1875, Harris v. People, 59 N. Y. 
 (14 Sick.) 599. 
 
 33. The " act to amend an act entitled an act 
 
144 
 
 CONSTITUTIONAL LAW. 
 
 to provide for the drainage of swamp, bog and 
 other low and wet lands in the village of White 
 Plains and adjacent thereto," chapter 689, Laws 
 of 1872), simply extends the provisions of the 
 original act so as to conform the description of 
 the lands to be drained to the precise description 
 contained in the title, apd extend the area of as- 
 sessment, and apportion the expenses in view of 
 the increased territorial extent of the operations, 
 and embraces but one subject, that of drainage, 
 which is expressed in its title. It is therefore 
 constitutional and valid. Ct. App., 1876, People 
 ex rel. Little v. Willsea, 60 N. Y. (15 Sick.) 507. 
 
 34. Chapter 96, Laws of 1867, entitled " An 
 act in relation to the establishment of a normal 
 and training school in the village of Brockport," 
 is not in violation of the constitution ; its subject 
 being single, all its provisions, including those 
 imposing a tax, being related to that subject, and 
 the subject being fairly expressed in tlie title. 
 Ct. App., 1872, Gordon v. Cornes, 47 N. Y. (2 
 Sick.) 608. 
 
 36. The provisions of sections 8 and 4, chapter 
 219, Laws of 1872, relative to the selection of 
 sites for certain public buildings named, are suffi- 
 ciently expressed in the title of the act, wliieh is 
 " An act in relation to the erection of public 
 buildings for the use of the city of Eochester ;" 
 and the act is constitutional. Ct. App., 1872, 
 People ex rel. Hayden v. City of Rochester, 60 N. 
 Y. (5 Sick.) 525. 
 
 36. Subject not expressed in title. It is a 
 matter of serious doubt whether a section con- 
 firming and ratifying the acts of village officers, 
 can constitutionally be interpolated in an act 
 entitled "An Act to consolidate, re-enact and 
 amend the charter " of such village. Sup. Ct., 
 1871, Hopkins v. Mason 42 How. 115; S. C, 61 
 Barb. 469. 
 
 37. The title " An act to alter the commis- 
 sioners' map of the city of Brooklyn " (chapter 
 507, Laws 1869), does not indicate as its subject 
 the closing of one street and opening of a new 
 one, the expense to be assessed on property in a 
 manner different from that prescribed by the 
 charter ; and such act, being a local one, is in 
 violation of article 3, section 16 of the constitu- 
 tion, and therefore void. Sup. Ct., 1870, People 
 ex rel. Pratt v. Common Council of Brooklyn, 13 
 Abb. N. S. 121. 
 
 38. The " act to make further provision for 
 the city of New York," (chapter 383, Laws 1870) 
 is local in its operation and effect, and is in no re- 
 spect, nor in any of its provisions general, al- 
 though all its provisions are public ; and the 
 provision of section 49 of that act, authorizing 
 the Court of Special Sessions of N. Y. city to be 
 held by one justice, in case of the disability of 
 the other justice, is unconstitutional and void, 
 the subject not being expressed in the title. Ct. 
 App., 1872, Huber y. People, 44 How. 375; S. C, 
 49 N. Y. (4 Sick.) 182. 
 
 39. The act of 1860 (ch. 509), " to enable su- 
 pervisors of the county of New York to raise 
 money by tax for city purposes, and to regulate 
 the expenditure thereof," &c., is a local act, and 
 the provisions therein authorizing the mayor and 
 council to make contracts for clearing the streets 
 for a term of years not exceeding five, without 
 limiting the expense to the amount appropriated 
 in the act for that purpose, or requiring the con- 
 tract to be let to the lowest bidder, are unconsti- 
 tutional and void because the subjects are not ex- 
 pressed in the title of the act, and also because 
 they in effect repeal important provisions of the 
 charter. N. Y. C. P., 1874, Devlin v. Mayor, 4rc. 
 of New York, 48 How.i57. 
 
 40. Two-thirds bill. Section 1 of ch. 776, 
 Laws of 1868, authorizing the laying of a high- 
 way in the town of Marlborough and vesting in 
 the town, for road purposes, the title of the State - 
 to so much of the lands as may be necessary 
 for the road, purports to dispose of a part of the 
 public property for a local purpose, and therefore 
 falls within the provision of section 9, art. 1, of 
 the constitution,which requires the assent of two- 
 thirds of tlie members of each house to such a 
 bill ; and as the law in question does not appear 
 either by the printed statutes or the original act, 
 to have been passed by the requisite vote, it 
 never had the effect of a law. Com. App., 1873, 
 People ex rel. Purdy v. Commrs. of Highways of 
 Marlborough, 54 N. Y. (9 Sick.) 276. 
 
 in. Lbsislative powebs. 
 
 41. Of congress. The effect of an act of 
 Congress on a subject as to which the State au- 
 thority is concurrent, is not to repeal but merely 
 to supersede state legislation, leaving unaffected 
 any rights or interests secured or obligations 
 previously incurred under the State laws. Ct. 
 App., 1871, Sturgis v. Spofford, 42 N. Y. (6 Hand,) 
 446. 
 
 42. It is not within the constitutional power of 
 Congress, to prescribe for the States a rule for 
 the transfer of property witliin them. An act, 
 therefore, declaring a deed void for an omission 
 to affix a revenue stamp, is unconstitutional and 
 void. Ct. App., 1872, Mom-e v. Moore, 47 N. Y. 
 (2 Sick.) 467. 
 
 43. Abolishing office. A police justice of 
 New York city, elected under ch. 377, Laws 1869, 
 was not a constitutional officer within the purview 
 and meaning of section 18, art. 6, of the consti- 
 tution of 1846, but his office was subject to 
 legislative control, and the legislature had power 
 to abolish it or to abridge the tenure thereof. 
 N. Y. C. P. Sp. T., 1873, Coulter v. Murray, 15 
 Abb. N. S., 129 ; S. C ., 4 Daly, 606. 
 
 44. The provision of ch. 538, laws of 1878, 
 abolishing all provisions for the election of police 
 justices and conferring the jurisdiction then held 
 by elected justices upon justices to be appointed, 
 immediately upon their appointment, is consti- 
 tutional, lb. 
 
 45. Appeals, regulation of. The appellate 
 jurisdiction of the Court of Appeals is subject 
 to regulation by the legislature ; and chapter 822,~ 
 Laws of 1874, prohibiting appeals when the judg- 
 ment or subject matter, in controversy is less 
 than $500, is constitutional and valid. Ct. App., 
 1874, Butterficldy. Rudde, 58 N. Y. (18 Sick.) 489. 
 
 46. Bonding towns. Chapter 262, Laws of 
 1869, and the amendatory act of 1870, (ch. 840) 
 authorizing the construction of certain roads in 
 the towns named, and directing the issue of town 
 bonds to defray the expeiises, upon the requisi- 
 tion of the commissioners and without the con- 
 sent of the inhabitants, are within the legislative 
 powers conferred by the constitution and are 
 valid. Ct. App., 1871, People ex rel. McLean v. 
 Flagg, 46 N. Y. (1 Sick.) *31. 
 
 47. Such acts are not in conflict with section 
 12, article 7, of the constitution, prohibiting the 
 creation of debts except to a limited extent, 
 unless the laws authorizing them are submitted 
 to the people, that section relating to State and 
 not to municipal debts. lb. 
 
 48. Although such acts authorize the commis- 
 sioners to construct bridges as well as roads 
 without limiting the expenditure as to tlie former, 
 they are not within section 13, of article 7, of the 
 constitution, which requires every law imposing 
 
CONSTITUTIONAL LAW. 
 
 145 
 
 a tax to distinctly state the tax and its object ; 
 there being no proTiaion whatever for raising the 
 money to pay for bridges. lb. 
 
 49. Closing streets. The legislature has 
 power to pass an act closing streets in the city 
 of New York, and to effect the closing through 
 such local oflSoers, or municipal board or organ- 
 ization, as it shall choose ; and it may prescribe 
 the particular action thereof which shall work 
 out the result. Ct. App., 1874, Fearing v. Irwin, 
 55 N. Y. (10 Sick.) 486 ; Aff'g. S. C, 4 Daly, 385. 
 
 50. Commission, creation of. The legisla- 
 ture has power to create a commission, such as 
 one for tlie investigation of canal contracts, by 
 concurrent resolution instead of bill ; there being 
 no clause in the constitution expressly prohibiting 
 it, and tlie power of the legislature being, there- 
 fore, unlimited in that respect. Sup. Ct., 1876, 
 People V. Learned, 5 Hun, 626. 
 
 51. A subsequent act recognizing and giving 
 effect to such resolution is not in violation of 
 article 3 section 17 of the new constitution, which 
 prohibits acts enacting that any existing law 
 shall be deemed a part thereof or applicable 
 thereto, unless by inserting it. lb. 
 
 52. Compelling subscription to railroad. 
 The legislature has no power, by a mandatory 
 statute, to compel a town or other municipal 
 corporation, without its consent in any way 
 given, to become a stockholder in a railroad 
 company, by exchanging its bonds for stock, upon 
 terms prescribed. Ct. App., 1873, People ex rel. 
 Dunkirk, W. and P. R. R. Co. v. Batchellor, 53 
 N. Y. (8 Sick.) 128. 
 
 53. Such an act cannot be sustained as an 
 exercise of the taxing power; A municipal cor- 
 poration cannot be compelled to embark in a 
 business of a private character, because its pros- 
 ecution by it will probably or certainly lead to 
 taxation, to supply the capital invested, or pay 
 the expenses incurred therein. lb. 
 
 54. Directing sale of lands. The legislature 
 has power, by special act, to authorize the sale 
 of lands of infants and others not capable of 
 acting for themselves, and also the contingent 
 rights of those not tn esse, and, possessing this 
 power, the manner of conducting the sale, and 
 the persons to be made parties and to have notice 
 of the proceedings, are questions for its deter- 
 mination ; but it has no power, by a sale under a 
 special act, to extinguish the rights, vested or 
 contingent, in real estate, of those of legal capacity 
 to act for themselves, without their consent, un- 
 less it be for some public purpose, or for the pay- 
 ment of taxes and assessments thereon. Ct. App., 
 1873, Brevoart v. Grace, 53 N. Y. (8 Sick.) 245. 
 
 66. Divisions of State. The constitution 
 has provided for, or in terms recognizes every 
 civil and political organization into which it was 
 intended the State should be divided ; and if any 
 other division or organization is allowable, it 
 can only be when neither of the others will serve 
 or answer the purpose, or the objects cannot be 
 accompUshed by organizing the territory in view 
 under one or the other forms of municipal gov- 
 ernment authorized by the constitution. Ct. 
 App., 1873, People ex rel. Bolton v. Albertson, 65 
 N. Y. (10 Sick.) 50. 
 
 66. The act to establish the " Rensselaer Police 
 District " (ch. 638, Laws of 1873,) does not come 
 within the exception, as all the purposes of the 
 act might have been accomplished by enlarging 
 the boundaries of the city of Troy, thus bring- 
 ing the small amount of contiguous territory 
 included in the police district sought to be estab- 
 lished within the jurisdiction of the city police ; 
 it is therefore unauthorized and void. lb. 
 10 
 
 57. The absence of all occasion for the enact- 
 ment being apparent, the courts do not, in an- 
 nulling it, sit in judgment upon the motives or 
 the discretion of the legislature. The power 
 depends upon necessity ; and there being no 
 necessity, there was no occasion for the exercise 
 of legislative discretion. lb. 
 
 58. Encouraging enlistments. Notwith- 
 standing.the power conferred upon Congress for 
 calling forth the militia, the States may still, 
 after that power has been exercised, enact laws 
 to encourage enlistments and regulate tlie pay- 
 ment of bounties therefor. Section 4 of chap- 
 ter 29, Laws of 1865, which prohibits the pay- 
 ment of bounties otherwise than as therein 
 provided, is therefore constitutional and valid. 
 Com. App., 1872, Powers v. Shepard, 48 N. Y. (3 
 Sick.) 640 ; Eev'g S. C, 49 Barb. 419 ; 83 How. 
 53. 
 
 69. Evidence. The legislature has power to 
 determine by law what shall, in civil cases, be 
 received by the courts as presumptive evidence. 
 Sup. Ct., 1874, Howard v. Moot, 2 Hun, 476. 
 
 60. The act providing for perpetuating cer- 
 tain testimony relative to the title of the Pulte- 
 ney estate (chapter 19, Laws 1821) is constitu- 
 tional, notwithstanding it does not provide for 
 any notice of the taking to parties adversely in- 
 terested, and makes the evidence when taken 
 prima facie evidence of the facts testified to. 
 lb. 
 
 61. Extradition. The law of this State, passed 
 in 1822, authorizing the governor, in his discre- 
 tion, to deliver over to justice any person found 
 within the State, charged with the commission 
 of any offense without the jurisdiction of the 
 United States, except treason, which if com- 
 mitted here would be punishable by death or by 
 imprisonment in the State prison (1 R. C. 164, 
 section 81, is unconstitutional and void, being in 
 conflict with the provisions of the United States 
 constitution (section 10), that " no State shall 
 enter into any treaty, alliance, — agreement or 
 contract witli — a foreign power." N. Y. Supr. 
 Ct., In matter of Vogt, 44 How. 171. S. P., 
 People ex rel. Barlow v. Curtis, 50 N. Y., (5 Sick.) 
 321. 
 
 62. Legalizing act. If by reason of jurisdic- 
 tional defects, an assessment for local improve- 
 ments was absolutely void, an act of the legisla- 
 ture ratifying and confirming the proceedings 
 and declaring them valid, is unconstitutional. 
 Sup. Ct., 1871, Hopkins v. Mason, 42 How. 115 ; 
 S. C, 61 Barb. 469. 
 
 63. The "act to confirm an assessment for 
 the expense of paving Broad street, in the city of 
 Utica " (chapter 741, Laws 1872), was passed in 
 the exercise of the taxing power of the legisla- 
 ture, and is not in violation of the rights of pri- 
 vate property, secured by sections 1 and 6, article 
 1, of the constitution, nor does it embrace more 
 than one subject, or interfere with contract obliga- 
 tions or vested rights, or contain any ex post facto 
 provisions ; but it simply gives a remedy against 
 parties who ought in justice to contribute, where 
 none existed before, through defects which are 
 cured by it, and it is constitutional and valid. 
 Sup. -St., Sp. T., 1872, Mann v. City of Vtica, 
 44 How. 334. 
 
 64. The legislature has power to confirm an 
 assessment made to pay for a public improve- 
 ment, although the act under which the im- 
 provement was made was in some of its pro- 
 visions unconstitutional ; and where bonds are 
 issued by a town in pursuance of such confirm- 
 ing act, the town is liable thereon. Sup. Ct., 
 1874, Knapp v. Town of Newtown, 1 Hun, 268. 
 
146 
 
 CONSTITUTIONAL LAW. 
 
 65. The legislature has power to ratify and 
 render valid acts already done without full com- 
 pliance with the requirements of the statute, 
 such a ratification being equivalent to an orig- 
 inal authority to do the same acts. Sup. Ct., 
 1875, Rogers v. Strong, 5 Hun, 475. 
 
 66. The act providing that the bonds of the 
 town of Greenwood, issued by the commission- 
 ers therein named, should be legal debts and 
 obligations against the town (chapter 638, Laws 
 of 1874), is constitutional and valid, notwith- 
 standing those bonds had been previously de- 
 clared by the Court of Appeals to be invalid 
 for defects in the proceedings. lb. 
 
 67. Licenses for places of amusement. 
 Tlie legislature has power to regulate places of 
 amusement, and to require them to be licensed, 
 eitlier as an exercise of the taxing power of the 
 Sta,te, or as part of its police regulations. Sup. 
 Ct., 1874, Wallack v. Mayor, etc., of New York 
 City, 3 Hun, 84. 
 
 67. It may, in order to enforce sucH legisla- 
 tion, authorize any person to institute suits, 
 either in his own name, or in the name of the 
 people, to recover penalties for violations there- 
 of, lb. 
 
 69. The appropriation of the license fees re- 
 ceived in the city of New York by chapter 836 
 Laws of 1 872, to the Society for the Eef orma- 
 tion of Juvenile Delinquents, is not a gift to a 
 private charity, but a provision for public use, 
 lawfully administered through that corporation, 
 and is clearly within the constitutional power of 
 the legislature. lb. 
 
 70. That corporation, if In any sense a pri- 
 vate one, is for public uses, and the legislature 
 might appropriate public moneys to it as a 
 mere gift. lb. 
 
 71. Even if the provision of that act for such 
 appropriation was invalid, that would not affect 
 the validity of the provisions requiring man- 
 agers of places of pubUc amusement to procure 
 licenses. lb. 
 
 72. Organizing courts. Courts of Oyer and 
 Terminer are recognized by the constitutions 
 of 1821 and 1846, but by neither are their pow- 
 ers defined, nor the manner of organization pro- 
 vided for, except that, by the latter, it was 
 made indispensable that a justice of the 
 Supreme Court should preside ; and, subject to 
 that' limitation, the legislature is left free to 
 change the constitution of these courts as it 
 may deem expedient, and may authorize such 
 justice to hold the court alone without asso- 
 ciates. Ct. App., 1872, Smith v. People, 47 N. Y. 
 (2 Sick.) 830. 
 
 73. Regulating public -works. The legis- 
 lature has power to regulate the manner in 
 which public sewers shall be constructed, and 
 no contract by a municipal corporation for 
 doing the work can operate to foreclose the 
 right. Ct. App., 1811, Protfstant Episcopal School, 
 In re, 46 N. Y. (1 Sick.) 178; Eev'g S. C, 40 
 How. 139; 58 Barb. 161. 
 
 74. Whether or not, in case a contract had 
 been made, a statute prohibiting the construc- 
 tion of sewers in the manner contracted for, 
 would relieve the city from liability to the con- 
 tractor for damages, not decided. lb. 
 
 IV. Judicial powbbs. 
 
 75. Election of Judges. It is apparent 
 from reading and construing the whole judiciary 
 article (article 6) of the constitution, adopted in 
 1870, so as to make it harmonize, that the gen- 
 eral plan is for full terms of fourteen years 
 
 each, in the oiB.ce of Justice of the Supreme 
 Court ; that these terms shall be provided for 
 by the choice of the electors at a general elec- 
 tion next preceding the expiration of a full 
 term ; that the terin shall begin on the first day 
 of January next after such general election ; 
 that, when a vacancy occurs by reason of any 
 events designated in the statute, such vacancy 
 can, in no case, exist longer than the term in 
 which it occurs; that, when it occurs more 
 than three months before a general election, if 
 it would exist beyond or into the then next 
 political year, it shall be filed thereat, and the 
 person chosen shall have a full term of fourteen 
 y/ears, beginning on the first day of January 
 next thereafter; that when a vacancy occurs 
 by such reason less than three months before a 
 general election, the Governor, or tlie Governor 
 and Senate may fill it until and including the 
 last day of December next after such election, 
 if the vacancy be one to be filled by election, 
 or until the last day of December next after the 
 appointment, if it be a vacancy occurring in a 
 term which itself expires on tliat day. Ct. App., 
 1872, People ex rel. Jackson v. Potter, 42 How. 
 260 ; S. C. 47 N. Y. (2 Sick.) 375. 
 
 76. Where a Justice of the Supreme Court, 
 whose term would expire on the last day of De- 
 cember, resigned on the day before the general 
 election in November, 1871, at which election 
 his successor was to be and was elected, — Held, 
 that the vacancy caused by his resignation ex- 
 isted only until the 31st of December, 1871, and 
 the person appointed by the Governor to fill the 
 vacancy could only hold until that date. lb. 
 
 77. A county judge, elected at the general 
 election in 1869, having taken the oath of office, 
 was, on the 1st day of January, 1870, " in office 
 at the time of the adoption " of the judiciary 
 article, within the meaning of those words as 
 used in its fifteenth section, and entitled to bold 
 for the full term of four years to which he was 
 elected. Ct. App., 1871, People ex rel. Davis v. 
 Gardner, 45 N. Y. (6 Hand,) 812 ; AfE'g S. C, 5 
 Lans. 1 ; 59 Barb. 198. 
 
 78. The limitation as to age found in section 
 13 of that article does not apply to a judge so 
 elected, the express language of section 15 being 
 controlling ; but is confined in its operation to 
 persons entering upon the extended term of 
 office. lb. 
 
 79. Justices. The act creating the office of 
 police justice in the village of Port Jervis (chapter 
 370, Laws 1873), is constitutional, and his juris- 
 diction is sufficiently defined therein. Sup. Ct., 
 1874, People ex rel. Creegan v. Dutcher, 2 Hun, 
 156. 
 
 80. Such court is an inferior, local one, and 
 section 19 article 6, of the constitution (of 1870) 
 authorizes the election or appointment of such a 
 justice at such times and in such manner as the 
 legislature shall direct. lb. 
 
 81. Salaries of county judges. The sal- 
 aries of county judges must, under section 15, 
 article 6 of the new constitution, " be establislied 
 by law," that is, by the legislature ; and the act 
 conferring upon boards of supervisors power to 
 fix such salaries (section 3, chapter 467, Laws 
 1870 ; 7 Edm. stats. 748), is unconstitutional and 
 void. Sup. Ct., 1871, Healey v. Dudley, 5 Lans. 
 
 82. Legislation in regard to the salaries of 
 county judges is not local, within the true intent 
 and meaning of section 17, article 3 of the con- 
 stitution, lb. 
 
 88. Courts martial were authorized by 
 statute prior to or soon after the adoption of the 
 
CONSTITUTIONAL LAW. 
 
 147 
 
 first constitution of this State, and have ever 
 since been in the open and continued exercise 
 of authority, and have not been abolisl\ed or 
 modified by any express provision, as have other 
 courts. They are also necessary incidents of 
 the discipline of the state militia, required by 
 the constitution of the United States and by 
 article 11, section 1, of our constitution, and are 
 recognized by arpicte 1, section 6, of our consti- 
 tution, and are tlierefore constitutional. Sup. 
 Ct., 1872, People ex rel. Underwood v. Daniell, 6 
 Lans, 44 ; Afi'd S. C, 50 N. Y. (5 Sick.) 274. 
 
 84. Article 6 of the State constitution has no 
 reference to military courts, but applies exclu- 
 sively to courts of civil judicature ; and the fact 
 that they are not included in the courts thereby 
 authorized to be established by the legislature 
 does not by implication prohibit their establish- 
 ment, lb. 
 
 86. Neither the provisions of section 2, article 
 1 of the constitution, relative to trial by jury, 
 nor those of section 6, article 1, relative to the 
 right to appear by counsel, apply to trials by 
 Court martial. lb. 
 
 86. The provision of the military code (sec- 
 tion 214, chapter 81, laws of 1870), authorizing 
 the arrest of a delinquent in case sufficient 
 goods and chattels cannot be found to satisfy a 
 fine or penalty imposed by court martial, is 
 constitutional. lb. 
 
 87. Abridgment of jurisdiction. The 
 general jurisdiction in law and equity conferred 
 on the Supreme Court by article 6, section 6, of 
 the constitution, cannot be abridged or limited 
 by the legislature, nor can power be conferred 
 upon the court to linait its own jurisdiction. Sup. 
 Ct., 1875, De Hart v. Hatch, 3 Hun, 375. 
 
 88. Enlarging jurisdiction. The power of 
 the legislature as to all subjects of legislation 
 being general and unlimited, except where it 
 has been abridged by the constitution of this 
 State, or of the United States, its power to 
 enlarge the jurisdiction of justices' courts is 
 unquestionable, unless it has been so restricted. 
 Sup. Ct., 1872, Knight v. Campbell, 62 Barb. 16. 
 
 89. The provision of the constitution relative 
 to trial by jury, has no reference to the power 
 of altering or increasing the jurisdiction of those 
 courts, and does not operate as a limitation 
 thereof. lb. 
 
 90. Inferior local court. It seems that 
 section 1, title 4, chapter 330, laws of 1873 
 amendatory of the charter of the village of De- 
 posit, lying partly in two counties, in providing 
 that " said police justice shall hare jurisdiction 
 in both civil and criminal actions — and liave tlie 
 same power and be subject to the same duties 
 and liabilities — as are possessed by justices of 
 the peace in this State, and all of his acts shall 
 be entitled to Aui credit and be effective in each 
 of the counties " in which the village was situ- 
 ated, creates an " inferior local court " within 
 the meanin;? of section 19, article 6, of the con- 
 stitution, limiting the jurisdiction of the justice 
 to the village of Deposit. Sup. Ct., 1875, Village 
 of Deposit V. Vail, 5 Huo, 310. 
 
 91. If, by the act, the authority of the justice 
 is not limited by the boundaries of the corpora- 
 tipn, so that in respect to powers conferred out- 
 side of the village the act would be void, yet, it 
 would still be valid so far as to authorize the 
 exercise of the powers granted witliin the corpo- 
 ration limits; the provi^ons which are valid and 
 those claimed to be void being distinct and sep- 
 arable, lb. 
 
 92. The provision of section 12, article 6, of 
 the constitution as amended in 1869, continuing 
 
 the Superior Courts of New York and Buffalo, 
 the Common Pleas of New York, and the city 
 courts of Brooklyn, with the same powers as 
 they previously had, " and such further civil and 
 criminal jurisdiction as may be conferred by 
 law," does not authorize the legislature to 
 change the character of those courts by divest- 
 ing them of their local character, and extending 
 their jurisdiction to parties and causes of action 
 outside of those localities. Ct. App., 1873, Lan- 
 ders V. Staten Island R. R. C»., 14 Abb. N. S. 
 3i6 ; S. C. , 53 N. Y. (8 Sick.) 450. 
 
 98. The term jurisdiction as used in the judi- 
 ciary article, has respect not to Jhe residence of 
 the plaintiff, but to the subject matter and cause 
 of action and the person of tlie defendant ; and 
 the terms " further civil and criminal jurisdic-' 
 tion," have respect to the object of the jurisdic- 
 tion, not to the territory or persons of suitors, 
 lb. 
 
 94. That article continues those courts with 
 the same territorial and personal jurisdiction, 
 with power to enlarge tlieir jurisdiction, as local 
 courts, over subjects and matters civil and crim- 
 inal in their nature, the proper subjects of civil 
 and criminal prosecutions. lb. 
 
 95. Tlie jurisdiction of proceedings by manda- • 
 mus was not by the constitution so exclusively 
 conferred upon the Supreme Court, as that the 
 legislature could not confer the power upon the 
 Court of Common Pleas of New York (as was 
 done by chapter 239, Laws of 1873), to issue said 
 writ directed to an inferior court, body or pe- in 
 within its territorial jurisdiction, insuchsubj r.t 
 matters as are witliiu its scope. Ct. App., 1874, 
 People ex rel. Ryan v. Green, 58 N. Y. (13 Sick.) 
 295. 
 
 96. Though void so far as it may be construed 
 as attempting to confer upon the courts named 
 in it territorial jurisdiction co-extensive witii the 
 Supreme Court, said act, as far as it confers 
 jurisdiction over a new subject matter, to be 
 exercised within the locality to wliicli said courts 
 are confined by the constitution, is valid and 
 operative. lb. 
 
 97. Transfer of jurisdiction. The provision 
 of article B, section 12, of the State Constitution 
 of 1870, continuing in certain courts the powers 
 and jurisdiction which they liad at tlie time it 
 was adopted, deprived tlie legislature of all 
 power to take from those , courts their then 
 existing jurisdiction. Ct. App., 1875, Alexander 
 V. Bennett, 60 N. Y. (15 Sick.) 204; Rev'g S. C, 
 38 N. Y. Supr. (6 J. & Sp.) 492. 
 
 98. It is the duty of those courts to exercise 
 the jurisdiction thus preserved when called upon 
 in proper form, and they cannot transfer or re- 
 linquish it. lb. 
 
 99. The provisions of law authorizing any 
 court of record to transfer an action pending 
 therein to the Marine Court of New York City, 
 and thereupon giving the latter exclusive juris- 
 diction thereof — (chapter 629, Laws of 1872; 
 chapter 545, Laws of 1874) — are unconstitutional 
 and void. Allen, Folgeb and Andrews, J. J., 
 dissent. lb. S. P., DeHart v. Hatch, 3 Hun, 375. 
 
 100. Prohibiting suits. The act prohibit- 
 ing any suit in equity or otherwise, for the 
 vacation of any assessment in the City of New 
 York, or to remove a cloud upon title (chapter 
 312, Laws of 1874) is not in conflict with the 
 provision of section 12, article 6, of the Consti- 
 tution of 1870, continuing the superior courts 
 and courts of common pleas with the same 
 powers and jurisdiction as tliey then possessed. 
 It merely affects the remedy of the party, and 
 that the legislature has power to limit or change. 
 
148 
 
 CONSTITUTIONAL LAW. 
 
 N. Y. Supr. Ct., 1875, Roe v. Maycyr, etc., of New 
 York, 37 N. Y. Supr. (7 J. & Sp.) 192. 
 
 V. Impaieing contracts ok vested rights. 
 
 101. Affecting remedy. A statute, per- 
 mitting the removal by a defendant of certain 
 causes from the District Court to the Court of 
 Common Pleas, upon giving bond as therein 
 specified, aflEects the remedy merely, and is not. 
 unconstitutional ^s impairing the obligation of 
 contracts. N. Y. C. P., 1871, Johnson v. Ackerson, 
 8 Daly, 430. 
 
 102. The act amending the charter of Brooklyn 
 so as to exempt the city from liability for nonfea- 
 sance, &c., of city officers (Laws of 1862, page 203, 
 section 39) is not unconstitutional, either as im- 
 pairing the obligation of contracts or as conflict- 
 ing with the constitutional provision (section 3, 
 article 8) that all corporations may sue and be 
 sued as natural persons. Ct. App., 1869, Gray 
 V. City of Brooklyn, 10 Abb. N. C. 186. 
 
 103. The legislature clearly had power under 
 section 1, of said article 8, to so modify the 
 charter. lb. 
 
 104. Said section 3 was intended to confer on 
 corporations the capacity to be sued, not to de- 
 fine the cases in which suits might be maintained 
 against them. lb. 
 
 106. The implied contract arising upon the 
 acceptance of a city charter, that the powers 
 conferred by it shall be used and observed for 
 the benefit and advantage of the city, is a con- 
 tract between it and the State, and not between 
 it and individuals ; and it is not impaired by an 
 act exempting the city from liability for neglect 
 of duty. lb. 
 
 106. It is clearly within the power of the legis- 
 lature to abolish the lien of all judgments at any 
 time before rights have become vested on estates 
 acquired under them, and place real estate 
 on the same footing as personal property ; to 
 confine the remedies of the creditor to the prop- 
 erty held by the debtor at the time of issuing 
 execution. Such a law does not take away prop- 
 erty or affect the obligation of contracts, but 
 simply affects the legal remedies. Ct. App., 
 1871, Watson v. New York Central R. R. Co., 47 
 N. Y. (2 Sick.) 157. 
 
 107. The owner of lands has no such consti- 
 tutional right to the aid of a court of equity to 
 vacate the apparent lien of an invalid assess- 
 ment thereon, that the legislature may not de- 
 prive him of that particular remedy. It is only 
 when the pretended lien is sought to be enforced 
 by the taking of his property that the owner is 
 protected by the constitution. Ct. App., 1874, 
 Lennon v. Mayor, etc., of New York City, 55 N. Y. 
 (10 Sick.) 361. 
 
 108. Amending charter. Where, by the 
 terms of a charter the legislature reserves the 
 power to amend or repeal it, a subsequent act 
 authorizing the corporation to reduce its capital 
 stock, on consent of a specified majority of the 
 stockholders, is constitutional. It neither im- 
 pairs the obligation of a contract, nor alters the 
 character or purpose of the corporation. N. Y. 
 C. P. Sp. T., 1872, Josh/n v. Pacijic Mail 
 Steamship Co., 12 Abb. N. Y. 329. 
 
 109. The act to improve and regulate the use 
 of Fourth Avenue, in New York City (chapter 
 702, Laws 1872), does not impair, the obligation 
 of the contract previously epcisting between the 
 city and the N. Y. & Harlem R. B. Co., that 
 contract having been annulled with the consent 
 of the city in 1859 ; but if that contract was stall 
 in force, the city waived its right therein by 
 
 acquiescence in the law. The State had the 
 right to take from the city the power which it 
 originally gave to control the street. Sup. Ct. 
 Sp. T., 1874, People ex rel. N. Y. ^ Harlem R. R. 
 Co. V. Havemeyer, 47 How. 494. 
 
 110. The civil damage law (chapter 646, 
 Laws 1873) is constitutional and valid, and does 
 not impair the contract between the excise 
 board and the person taking' out the license. It 
 must be construed as part of the excise law, 
 under which licenses are granted, and the lia- 
 bility for such damage is a condition thereof. 
 Sup. Ct., 1874, Baker v. Pope, 2 Hun, 556. 
 
 111. Discharging lien. Where lands ap- 
 propriated for public purposes are, by the act 
 appropriating them, specifically pledged for the 
 payment of bonds jssued to pay the awards, an 
 act authorizing their sale discharged of the hen 
 will be void as impairing the obligation of con- 
 tracts ; and the further direction in the statute, 
 that the proceeds of such sales form a sinking 
 fund for the redemption of the bonds, will not 
 obviate the objection. Ct. App., 1871, Brooklyn 
 Park Commissioners v. Armstrong, 45 N. C. (6 
 Hand,) 234. 
 
 112. Opening avrard for land taken. If 
 an award of damages for land taken for widen- 
 ing a street is a contract. Its utmost effect is 
 that the owner shall sell and the city buy at 
 such price as the land is worth, and a law, such 
 as chapter 57, Laws of 1871, authorizing the 
 Supreme Court to open the order confirming 
 the award of damages, for good cause shown, 
 and cause the question of valuation to be re- 
 examined, does not impair the obligation of 
 the contract, nor does it deprive a person of prop- 
 erty without due process of law. Sup. Ct., 1872, 
 In matter of widening Broadway, 42 How. 220 ; 
 S. C. 61 Barb. 483. 
 
 113. Removal of county seat. An act 
 for the removal of a county "seat is not a viola- 
 tion of any contract which the legislature has 
 power to make, or an infringement of any vested 
 right of the people of the locality from which it 
 is removed. Sup. Ct., 1874, Trustees of the 
 Village of Havana v. Board of Sups, of Schuy- 
 ler Co., 2 Hun, 600. 
 
 114. Repealing tax exemption. Section 
 4 of chapter 257, Laws of 1822, enacting that no 
 property of the Society of the New York Hospital 
 should be subject to be taxed by virtue of any 
 law of the State, did not constitute a contract, 
 but was a spontaneous concession by the legis- 
 lature, not connected with any service or duty 
 imposed upon the corporation, and was, there- 
 fore, subject to modification or repeal. Ct. App., 
 1871, People ex rel. Davies v. Commissioners of 
 Taxes of New York, 47 N. Y. (2 Sick.) 501. 
 
 VI. Ex POST facto laws. 
 
 116. Municipal bonds. The amendment 
 of the constitution. Art. 8, section 11, prohibiting 
 any county, city, town or village from loaning 
 its credit to, or becoming the owner of stock in 
 any corporation, does not operate retrospectively. 
 Sup. Ct., 1875, Rogers v. Smith, 5 Hun, 476. 
 
 116. That provision operates to annul the 
 power of town commissioners to subscribe for 
 stock after it took effect, or to issue any bonds 
 not required to fill contracts then actually made 
 and in force. Sup, Ct., 1875, In Matter of Buff, 
 and Jamestown R. R. Co., 5 Hun, 485. 
 
 117. Making husbeind and wife -witnes- 
 ses. The Act of 1867 (7 Edm. Stats., 198) in 
 making husband and wife competent witnesses 
 for or against each other, in actions then pend- 
 
CONSTITUTIONAL LAW. 
 
 149 
 
 ing, and as to communications made prior to its 
 passage, is not obnoxious to the constitutional 
 provision against ex post facto laws, so far as it 
 relates to civil actions. Wliether or not it would 
 be, BO far as it provides a rule of evidence in 
 criminal cases, not decided. Ct. App., 1872, 
 Southwick V. Southwkk, 49 N. T. (4 Sick.) 610 ; 
 AfE'g S. C, 2 Sweeny, 284. 
 
 118. Revival against representatives. 
 The provision of chapter 838, Laws 1872, for the 
 revival, against the personal representatives of 
 a deceased assignee, of proceedings pending at 
 his death, was clearly designed to operate retro- 
 spectively and apply to proceedings previously 
 instituted ; and it is nevertheless constitutional 
 and valid, as it merely affects the remedy for 
 the prosecution of pre-existing rights. Sup. Ct., 
 1873, In matter of Grove, 64 Barb. 526. 
 
 VU. Emiijent domain. 
 
 119. VThen the po'wer may be exercised. 
 
 The legislature lias the constitutional power and 
 right to authorize the taking of private property 
 for the purpose of making public improvements, 
 paying the owners full compensation therefor, 
 whether such improvements are made by the 
 State itself, or through the medium of a corpora- 
 tion or joint stock company. Sup. Ct., 1872, 
 Bloortifield, etc., Natural Gas Light Co. v. Rich- 
 ardson, 63 Barb. 437. 
 
 120. In order to constitute a public use, 
 within the meaning of the constitution, it is not 
 necessary that the improvement should directly 
 benefit the people of the whole State. Xb. 
 
 121. It belongs to the legislature to determine 
 for what public purposes private property shall 
 be taken, and the necessity or expediency of 
 such appropriation. lb. 
 
 122. The constitutionality of an act assuming 
 to confer the right to take private property for 
 public use, is only to a limited extent a judicial 
 one ; and the power of the court should be exer- 
 cised only in a case where it is clear and mani- 
 fest that no public use was contemplated, or 
 public benefit is to result. lb. 
 
 123. If the act has for its objects or one of its 
 objects, the promotion of an enterprise which 
 the court can see may be for the public benefit, 
 or constitute a public improvement, and it at the 
 same time provides for the payment of full com- 
 pensation, to be ascertained in the manner 
 pointed out by the constitution, the power of the 
 legislature to enact it must be affirmed. lb. 
 
 124. The act giving additional powers to the 
 Bloomfield and Rochester Natural Gas Light 
 Company (ch. 757, Laws of 1870), and authoriz- 
 ing the company,to exercise the power of emi- 
 nent domain for the purpose of laying their gas 
 pipes, is constitutional and vaUd. lb. 
 
 125. Abandoned plankroad. The pro- 
 visions of chapter 87, Laws of 1854, which de- 
 clare that when any portion of a plankroad shall 
 be surrendered, the land shall cease to be the 
 property of the company and revert and belong 
 to the several towns, so far as it operates to 
 transfer the title to lands conveyed absolutely to 
 the company, is not obnoxious to the objection 
 that it takes private property for public use| 
 without compensation. Ct. App., 1872, Heath- 
 v. Barmore, SON. T. (5 Sick.) 302. 
 
 126. Abandoned railroad. The owner of 
 lands taken by a railroad company under a law 
 authorizing it to acquire only the use for the 
 purpose of operating its road, cannot be deprived 
 of his reversionary interest in such land, in case 
 of the abandonment of the use by the railroad 
 
 company, by any act of the company, or by 
 legislative enactment, without compensation. 
 Ct. App., 1875, Heard v. City of Brooklyn, 60 N. 
 Y. (15 Sick.) 242. 
 
 127. Cemeteries. The legislature is the 
 proper body to determine the necessity or fitness 
 of taking private property for public use, and as 
 to the extent and manner of the appropriation, 
 and it can delegate that power to a cemetery 
 association. Sup. Ct., 1875, /» matter of Deans- 
 ville Cemetery Asso., 5 Hun, 482. 
 
 128. Provision for the proper and decent 
 burial of the dead is a public necessity and duty, 
 and the legislature may lawfully provide for the 
 compulsory taking of land by cemetery corpora- 
 tions for that purpose. lb. 
 
 129. Roads across railroad tracks. The 
 provision of Section 1, chapter 62, Laws 1853, 
 authorizing the laying out of streets and high- 
 ways across railroad tracks without compensa- 
 tion, is not in conflict with section 6, arti- 
 cle 1, of the constitution, the title of railroad 
 companies to real estate purchased by them 
 being qualified and for public use, although held 
 by deed in fee simple absolute. Sup. Ct., 1872, 
 Boston and Albany R. R. Co. v. Prest. etc. of Vil- 
 lage of Greenbush, 5 Lans. 461 ; AfE'd S. C, 52 N. 
 Y. (7 Sick.) 510. 
 
 130. Neither is the act declaring that streets 
 laid out in the village of Greenbush, some of 
 which were laid across railroad tracks, should 
 be recognized as streets, without any provision 
 for compensation to the company (ch. 383, Laws 
 1854) in confiict with'that provision. lb. 
 
 131. Stream. The legislature has power to 
 appropriate, by force of its own enactment, any 
 flowing stream in the State to the use of the 
 public as a highway, provided the act contains 
 suitable provisions for compensation to persons 
 whose individual rights are thereby divested, 
 infringed upon, or impaired. Sup. Ct., 1875, 
 Partridge v. Eaton, 3 Hun, 533. 
 
 132. Compensation, right to. Where one 
 public way to property is closed by statute, if 
 another is left, the owner sustains no actionable 
 damages ; and the statute is not unconstitutional 
 for not providing for compensation. Ct. App., 
 1874, Fearing v. Irwin, 55 N. Y. (10 Sick.) 486 ; 
 AfE'g S. C, 4 Daly, 385. 
 
 133. The provisions of section 3, chapter 219, 
 Laws of 1872, authorizing the commissioners 
 therein named to select for a building site for 
 the City Hall of Rochester, a piece of ground 
 specified, belonging to the city, or " some other 
 piece of land in said city which said commission- 
 ers may deem suitable," do not violate the con- 
 stitutional prohibition against taking private 
 property without compensation ; because' they 
 may be completely executed by the selection of 
 lands belonging to the city, in which case no 
 compensation is necessary. Ct. App., 1872, 
 People ex rel. Hayden v. City of Rochester, 50 N. 
 Y. (5 Sick.) 525. 
 
 134. Whether an act authorizing the taking 
 of lands for an avenue, which contains no pro- 
 vision whereby the owner of any estate, less 
 than a freehold, can compel the estimate and 
 assessment of the damages sustained by him is 
 not unconstitutional. Query 1 Sup. Ct., 1874, 
 Rider v. Stryher, 2 Hun, 115. 
 
 135. Whether a limitation of the assessment 
 to pay for lands taken and for the expense of 
 constructing the avenue to the land lying within 
 100 feet on each side of such avenue, affords 
 such a certain remedy, and upon an adequate 
 fund, as the constitution requires, query % 
 lb. 
 
150 
 
 CONSTITUTIONAL LAW. 
 
 136. — ho'w ascertained. The constitutional 
 provision relative to compensation for private 
 property taken for public use (Art. 1, § 7J, re- 
 quires the amount to be ascertained by a jury, 
 or by not less than three commissioners ap- 
 pointed by a court of record ; and it is not com- 
 petent for the legislature to provide any other 
 mode of assessment^ Sup. Ct., 1871, Rochester 
 Water Works Co. v. Wood, 41 How. 53. S . P. 
 Menges v. City of Albany, 47 How. 244 ; AfE'd 56 
 N. Y. (11 Sick.) 374. ' 
 
 137. The provision in the charter of the Roches- 
 ter Water Works Co. (Laws 1852, ch. 356, §§ 8, 
 9, 10, 11), which authorizes thecourtupon appeal 
 to increase or reduce the amount of damages 
 reported by three commissioners, for the taking 
 of land for the use of said company, is, there- 
 fore, unconstitutional and void. lb. 
 
 138. It is competent for the legislature to pro- 
 vide for an appeal in such cases ; but, upon 
 such appeal, the court can only confirm the as- 
 sessment, or set it aside, and correct irregularities 
 in the proceedings. Wliere the damages assessed 
 !.re too great, it should set aside the appraisal, 
 and appoint new commissioners. lb. 
 
 139. The constitution contemplates that the 
 court shall exercise its judicial discretion in ap- 
 pointing commissioners ; and an act authorizing 
 the Common Council of a city to select twelve, 
 out of which they shall draw three and appoint 
 them as commissioners, is unconstitutional and 
 void. Sup. Ct., 1873, Menges v. City of Albany, 
 47 How. 244; AfE'd S. C.,56N. Y. (11 Sick.) 374. 
 
 140. The provision of the act of 1813, autho- 
 rizing two of the commissioners of estimate and 
 assessment to act, and declaring their acts valid 
 as the acts of all, is not abrogated by section 7, 
 article 1, of the constitution of 1846, which 
 requires compensation to owners of property 
 to be ascertained by a jury, or by not less than 
 three commissioners ; and, notwithstanding that 
 provision, the legislature can authorize a deci- 
 sion by a majority of the commissioners. Sup. 
 Ct., 1872, In matter of Broadway Widening, 63 
 Barb. 672. 
 
 141. The provision of article 1, section 7, of 
 the constitution of 1846, requiring compensation 
 for private property taken by right of eminent 
 domain to be ascertained by a jury, or by not 
 less than three commissioners, &c., does not use 
 the term jury in the sense of a tribunal of twelve 
 men acting only upon a unanimous determina- 
 tion, but in the sense of a body of an indefinite 
 number deciding by majorities or otherwise as 
 the legislature may direct. N. Y. Supr. Ct., 1874, 
 Astar V. Mayor, etc., of New York, 37 N. Y. Supr. 
 
 /5 J. & Sp.) 539. 
 
 142. If there is no constitutional prohibition 
 against the adoption of the determination of the 
 majority, it would still be necessary for the 
 commissioners all to meet and consult in relation 
 to the matters to be presented by their final 
 report ; and chapter 483 Laws of 1862, so far as 
 it authorizes proceedings by only two of the 
 commissioners in cases involving the taking of 
 lands, is unconstitutional and void. lb. 
 
 143- Payment when to be made. It seems 
 there is no constitutional objection to a statu- 
 tory provision deferring the payment of com- 
 pensation awarded for private property taken for 
 public use for a time sufficient to enable the 
 state or municipality to collect, by the process 
 of taxation, the money required for its payment, 
 although, meanwhile, no interest is allowed, 
 and the public assumes possession. Ct. App., 
 1874, HamerShy v. Mayor, etc., of New York, 56 
 N. Y. (11 Sick.) 533. 
 
 144. The security provided under the general 
 highway laws for an early as well as certain 
 payment of compensation for lands taken, by 
 means of a general tax to be collected with the 
 other moneys raised annually by taxation, is a 
 compliance with the constitutional provision 
 that private property shall not be taken without 
 just compensation, and it is not necessary that 
 an assessment or payment of the damages sus- 
 tained, shall precede the actual appropriation 
 of the land. Com. App., 1873, Chapman v. Gates, 
 64 N. Y. (9 Sick.) 132. 
 
 146. It seems, that a provision made by a local 
 assessment imposed on lands adjoining those 
 taken, for raising the money to pay therefor, 
 would not be a compliance with that constitu- 
 tional provision. lb. 
 
 146. Payment ifito court. The provision of 
 the general railroad act for the payment into 
 court of the money awarded for lands taken for 
 railroad purposes, in case of adverse and con- 
 flicting claims thereto (§ 19, ch. 140, Laws of 
 1850), is not in violation of the constitutional 
 provision in respect to compensation (art. 1, § 6), 
 in not requiring payment directly to the land, 
 owners. Ct. App., 1875, /n matter of N. Y. Cent. 
 Sr Hud. Riv. R. R. Co., 60 N. Y. (15 Sick.) 116. 
 
 147. Provision for collecting. Although the 
 act (ch. 272) of 1869, " to autliorize the towns 
 of Yonkers and East Chester in the county of 
 Westchester, to widen, &c., certain highways in 
 said towns " does not in express terms designate 
 any person to collect the assessments authorized 
 by the act, yet its fair intent and purpose was 
 to confer that power upon the commissioners ; 
 and thus adequate provision is made by the act 
 for compensation to the owners of lands taken, 
 to meet the requirements of the constitution. 
 Ct. App. 1873, Odell v. De Witt, 53 N. Y. (8 
 Sick.) 643. 
 
 VIII. Trial bt jubt ; due pkooess of law. 
 
 148. Qualifications of juror. So long as the 
 right is preserved to the accused, of trial by an 
 impartial jury, the legislature has powers to 
 change from time to time as it may deem expe- 
 dient, the law regulating the mode of procuring 
 and impanneling such jury. The law of 1872, 
 (ch. 475), providing that the formation or ex- 
 pression of an opinion shall not disqualify a 
 juror, in case he shall declare and the court 
 shall be satisfied that he does not entertain such 
 a present opinion as would influence his verdict, 
 does not impair that right, and is constitutional 
 and valid. Ct. App., 1873, Stokes v. People, 53 
 N. Y. (8 Sick.) 164. 
 
 149. Canceling licenses. The power to Mcense 
 and to cancel licenses when granted, is vested 
 in the legislature, and the mode of exercising 
 that power rests in the legislative discretion. Ct. 
 App., 1874, People ex rel. Presmeyer v. Commis- 
 sioners \of Police, etc., of Brooklyn, 59 N. Y. (14 
 Sick.) 92. 
 
 150. The provision of section 8, chapter 549, 
 Laws of 1873, authorizing boards of excise to 
 inquire into alleged violations of the excise 
 laws by licensed persons, and if established to 
 cancel their licenses, is not in contravention of 
 the constitutional provision preserving the right 
 of trial by jury. The examination provided for 
 is merely to determine whether the person 
 charged is a suitable person to sell liquors, and 
 is not a trial. lb. 
 
 151. Forfeited recognizance. The constitu- 
 tional provisions relative to a jury trial and due 
 process of law are waived by one who enters 
 
CONSTITUTIONAL LAW. 
 
 151 
 
 into a criminal recognizance by tlie terms of 
 which a judgment may be entered summarily 
 upon forfeiture. Ct. App., 1874, People v. Quigg, 
 and Same v. Florence, 59 N. Y. (14 Sick.) 83. 
 
 152. The habitual criminal act (ch. 857, 
 Laws 1873), is not in violation of the prorision of 
 article 1 of the constitution preserving " trial by 
 jury in all cases in which it has heretofore been 
 used," a trial by jury never having been used, 
 previous to the adoption of the constitution, in 
 the disposition of vagrants and disorderly per- 
 sons, among whom such criminals may law- 
 fully be, and by said act are, classed by the 
 legislature. Sup. Ct., 1873, People v. McCarthy, 
 and Same v. Warner, 45 How. 97- 
 
 153. Neither is it in conflict with the provision 
 that " no person shall be subject to be twice 
 put in jeopardy for the same offense," as it does 
 not punish the offender for his previous offense, 
 but for being in a particular place for unlawful 
 purposes. lb. 
 
 164. Justices' jurisdiction. The extension 
 of the jurisdiction of justices of the peace to 
 actions of replevin, by section 53 of the Code, as 
 amended in 1861, was not in violation of article 
 1, section 2, of the constitution, by reason of its 
 transferring a class of cases from courts of 
 record, where juries are composed of twelve 
 men, to justices' courts in which they consist of 
 six only. Mullin, P. J., dissents. Sup. Ct., 
 1872, Kniglft v. Campbell, 62 Barb. 16, S. P., Crouse 
 v. Walrath, 41 How. 86. 
 
 155. The constitutional provision that " the 
 trial by jury, in all cases in whichit has been here- 
 tofore used, shall remain inviolate forever," was 
 intended to embrace juries injustices' courts, as 
 they existed and had been used before the con- 
 stitution was adopted ; and a jury of six men, in 
 a justices' court, is as much a jury, in the eye 
 of the law, as a jury of twelve in a court of 
 record. lb. 
 
 156. The constant exercise of the power of al- 
 tering and enlarging the jurisdiction of inferior 
 tribunals, and authorizing them to try actions, 
 with a jury of six, of classes previously triable 
 only in courts of record, under all three of our 
 constitutions containing a similar provision, and 
 acquiescence therein, is of great weight in favor 
 of the constitutionality of such acts. lb. 
 
 157. Jurisdiction of Special Sessions. The 
 act giving to Courts of Special Sessions in the 
 County of Monroe exclusive power to hear, try 
 and determine, amongst other offences, " all 
 cases of petit larceny, not charged as a second 
 offense," arising within that county, is constitu- 
 tional and valid ; since our statutes have in 
 effect reduced that crime to the grade of a mis- 
 demeanor, and a party charged therewith is not 
 entitled to a trial by jury ; and section 26 of the 
 present judiciary article gives to Courts of Spe- 
 cial Sessions such jurisdiction of offences of that 
 grade as may be prescribed bylaw. Sup. Ct., 
 1872, People ex ret. Stetzer v. Rawson, 61 Barb. 
 619. 
 
 168. Lien, enforcement of. The Statute of 
 1862, (chapter 482, Laws of 1862 ; 4 Edm. Stats. 
 653), providing for the collection of demands 
 against vessels by attachment proceedings, is 
 not unconstitutional, either as infringing upon 
 the right of trial by jury, or as depriving the 
 owner of his property without due process of 
 law. Com. App., 1872, Sappy v. Mosher, 48 
 N. Y. (3 Sick.) 313; Eev'g S. C, 47 Barb. 601. 
 S. P. Sheppard v. Steele, 43 N. S. (4 Hand,) 52. 
 
 159. Motions are chiefly addressed to the 
 equity side of the Court; few being founded 
 upon absolute right ; and Courts of Equity 
 
 have always, when they saw flt, determined 
 questions of fact without a jury. Motions or 
 questions of fact arising thereon are not, there- 
 fore, " cases " in which the trial by jury was 
 heretofore used, and not within the constitu- 
 tional provisions on that subject, ahd the court 
 may either try or refer such questions. N. Y. 
 Supr. Ct., 1875, Porter v. Farmly, 39 N. Y. 
 Supr. (7 J. & Sp.) 219. 
 
 160. Nuisance. In an action to abate a nui- 
 sance and to recover damages also, a trial by jury 
 is matter of right, under the constitution. E^kl 
 and Hunt, C. C, contra. Com. App., 1871, 
 Hudson V. Caryl, 4A N. Y. (5 -Hand,) 563. 
 
 161. Due process. When the conditions re- 
 quired by the constitution of this State to be 
 observed for the protection of the rights of the 
 citizen, in taking his property for public use, 
 have been complied with, that must be regarded 
 as a fulfilment of the directions in respect to 
 " due process of law," in the State constitution 
 and in the fourteenth amendment to that of the 
 United States, Sup. Ct., 1872, In matter of 
 Commissioners of Central Park, 63 Barb. 282. 
 
 162. Land taken in a city, for public parks and 
 squares, by authority of law, whether advan- 
 tageous to the public for recreation, health or 
 business, is taken for a public use. lb. 
 
 163. Contempt, punishment for. The act 
 giving commissioners for the investigation of 
 canal contracts power to punisli witnesses for 
 contempts, the same as courts of record (ch. 
 91, Laws of 1875), is not in conflict with the 
 clause of the constitution declaring that "no 
 person shall be deprived of life, liberty or prop- 
 erty, without due process of law," the proceed- 
 ings before such commissioners provided for 
 being due process of law. Sup. Ct., 1876, 
 People V. Learned, 5 Hun, 626. 
 
 164.' Excessive Bail. It seems that the con- 
 stitutional provision relative to excessive bail 
 applies to criminal actions only. Sup. Ct., Sp. T., 
 1871, People v. Tweed, 13 Abb. N. S. 148. 
 
 165. Execution, leave to issue. The act au- 
 thorizing the issuing of an execution on a judg- 
 ment after the death of the judgment debtor, 
 upon leave granted by the surrogate (ch. 296, 
 Laws 1850), if construed as providing the only 
 proceeding required to revive a judgment, is 
 void, as authorizing an ex parte proceeding to 
 deprive a party of liis property. ST. S. Supr. 
 Ct., 1875, Beard v. Sinnott, 38 N . Y. Supr. (6 J. 
 & Sp.) 636. 
 
 166. Gamela-ws. The act for the'preservation 
 of game (ch. 721, Laws of 1871), proliibiting 
 both the killing and the having in possession 
 certain, kinds of game during certain months, is 
 not in violation of article 1, section 6, of the con- 
 stitution, so far as it relates to property acquired 
 after the passage of the act. Ct. App., 1875, 
 Phelps V. Racey, 60 N. Y. (15 Sick.) 10. 
 
 167. Information. The provision of article 1, 
 section 6, of the constitution, that " no person 
 shall be held to answer for a capital or other in- 
 famous crime — unless on presentment or indict- 
 ment of a grand jury," &c., does not affect the 
 remedy by information, when it may be neces- 
 sary to revert to it as a proceeding to enforce 
 punishment already incurred under a prior con- 
 viction and sentence. Sup. Ct., 1872, Haggerty 
 V. People, 6 Lans. 332. But see S. C, 63 N. Y. 
 (8 Sick.) 476. 
 
 168. Seizure of animals. Chapter 459, Laws 
 of 1862, as amended by chapter 814, Laws of 
 1867, providing for a Seizure and condemnation, 
 after notice to the owner, and trial, of cattle 
 found trespassing or running at large, is not in 
 
152 
 
 CONSTITUTIONAL LAW. 
 
 violation of section 1, article 6, of the constitu- 
 tion, declaring that no person shall be deprived 
 of life, liberty or property, without due process 
 of law ; but it is constitutional and valid. Ct. 
 App., 1871, Cook V. Gregg, 46 N. Y . (1 Sick.) 
 439. S. P. Squares v. Campbell, 41 How. 193 ; 60 
 Barb. 391. 
 
 169. That act does not deprive the owner of the 
 right to replevy the animals ; but if the seizure 
 was found lawful, he would be required to return 
 them or pay the sums necessary to redeem. lb. 
 
 170. Transfer of right of action. The allow- 
 ing actions to be brought in the name of the 
 people for the recovery of money fraudulently 
 taken from the county of New York (ch. 49, 
 Laws of 1875), merely creates a new remedy for 
 the benefit of the city and county, and does not 
 deprive them of any vested right, and it is 
 therefore constitutional and valid. Sup. Ct., 
 1875, People v. Tweed, 5 Hun. 382. 
 
 171. Right to counsel. A court-martial is 
 witliin tlie meaning of section 6, article 1, of the 
 constitution, which provides that a party ac- 
 cused of crime shall on trial before any court 
 whatever, be allowed to appear and defend by 
 counsel ; and paragraph 189 of the general 
 militia regulations of this State, which ignores 
 that right, is unconstitutional and void. Ct. 
 App. 1873, People ex rel. Garling v. Van Allen, 55 
 N. Y. (10 Sick.) 31. 
 
 IX. COKPORATIONS ; SCHOOL FUND ; STATE PI- 
 NANCES ; TAXATION. 
 
 172. Authorizing sale of corporate fran- 
 chises. The act authorizing the eastern branch 
 of the Schoharie turnpike company to sell 
 and transfer all its corporate rights and fran- 
 chises (ch. 347, Laws 1855), was constitutional 
 and valid. Sup. Ct., 1875, Clow v. Van Loan, 4 
 Hun, 184. 
 
 173. School fund. The provisions of sec- 
 tion 7, of cliapter 466, Laws of 1866, (6 Edm. 
 Stats., 441,) appropriating a portion of the school 
 fund to the support of normal schools, are in vio- 
 lation of section 1, article 9, of the constitution, 
 and void ; but their invalidity does not defeat the 
 whole act, as, the legislature having the requi- 
 site power to carry out the general design, and 
 the sole objection being that it has designated 
 the wrong fund out of which the support of the 
 schools is to be drawn, it will be assumed that 
 the legislature will regard it as a duty to provide 
 a substitute, and the remaining provisions will 
 be sustained. Ct. App., 1872, Gordon v. Cornes, 
 47 N. Y. (2 Sick.) 608. • 
 
 1?4. Appropriating moneys. An act pro- 
 viding for the improvement of a street at the 
 joint expense of a city and a railroad company, 
 and authorizing taxation to pay the expense, is 
 not in conflict with section 9, article 1, of the con- 
 stitution. The term " public moneys " as there 
 lised refers to moneys of the State. Sup. Ct. 
 Sp. T., 1874, People ex rel. N. Y. ^ Harlem K E. 
 Co. V. Havemeyer, 47 Hew. 494. 
 
 175. Canal contract. The act authorizing 
 the Canal board to take proof in regard to the 
 cost of work done under a canal contract, and 
 in case it exceeds the contract price to specify 
 the price to be ' ipaid, and directing that the 
 contractor be paid accordingly (chapter 543, 
 Laws 1870), is in conflict with the constitutional 
 provision (Art. 7, section 8), requiring such con- 
 tracts to be made with the lowest bidder. Sup. 
 Ct., Sp. T., 1871, People ex rel. Sherill v. Canal 
 Board, 4 Lans. 272. 
 
 176. Although the legislaturs might perhaps 
 
 cancel the contract, or, after the work was done 
 give the contractor a gratuity, yet it could not 
 authorize the canal board to increase the price 
 Under an existing contract. lb. 
 
 177. The provision in the constitutional amend- 
 ment of 1854, that all contracts for work or 
 materials on any canal shall be made with the 
 person who shall offer the lowest price, with 
 adequate security for performance, does not pre- 
 vent the legislature, either during the progress 
 of the work, or after its completion, from in- 
 creasing the prices or allowing to the contractors 
 additional or extra compensation for doing the 
 work. Grovee, J., dissents. Ct. App., 1874, 
 People ex rel. Williams v. Dayton, 55 N. Y. (10 
 Sick.) 367. 
 
 178. The legislature has power to discharge any 
 obligations of the State, legal or equitable, and 
 is not restricted, in granting relief, to such 
 grounds as would be requisite to maintain an 
 action against an individual in a court of justice. 
 Where extra compensation is granted, it will be 
 presumed that sufficient grounds existed, and 
 with those who allege the invalidity of the act 
 will it lie to show the error affirmatively. lb. 
 
 179. Creating debt. Chapter 700, Laws of 
 1872, making appropriations for a large number 
 of different objects and authorizing the creation 
 of a debt for their payment, is in violation of 
 section 12, of article 7, of the constitution, which 
 prohibits the contraction of a debt on belialf of 
 the State, unless authorized by a law for some 
 single work or object to be distinctly specified 
 therein ; and the fact that the word " appropri- 
 ation " is used in the singular number, and the 
 debt is declared to be for the " single object " of 
 raising the money to pay the " appropriation 
 herein named " does not obviate the objection. 
 Ct. App., 1873, People ex rel. Hopkins v. Board of 
 Supervisors of Kings Co., 52 N. Y. (7 Sick.) 556. 
 
 180. Said act is also in violation of that other 
 clause of the same section, which prohibits the 
 submission of such a law at any general election, 
 when any other law, or any bill, or amendment 
 to the constitution shall also be submitted. lb. 
 
 181. There is no power in the State to create 
 a debt or incur an obligation in behalf of the 
 State, except to the amount and in the man- 
 ner provided for in the constitution. And appro- 
 priations of the legislature, though valid to the 
 amount of the State moneys, are nullities in ex- 
 cess of that amount, and impose no liability upon 
 the people, or obligation upon succeeding legisla- 
 tures to provide means for their payment. lb. 
 
 182. Power of taxation. The taxing power of 
 the legislature for public purposes is unlimited, ex- 
 cept as specifically restrained by the constitution ; 
 and it extends to the imposition of an assessment 
 for a particular public work or improvement. 
 Ct. App., 1874, In the matter of Van Antwerp, 56 
 N. Y. (11 Sick.) 261. 
 
 183. If a particular municipal assessment is void 
 for irregularity, the legislature may itself make, 
 instead of authorizing a re-assessment. lb. 
 
 184. The legislature has power to impose a tax 
 upon a particular locality, in aid of a public pur- 
 pose which it may reasonably regard as a benefit 
 to that locality as well as to the State at large ; 
 and, where it has undertaken to levy a tax upon 
 tlie ground of such mutual benefits, ineqnality 
 in the apportionment of the expenses of the un- 
 dertaking, with reference to the benefits resulting 
 respectively to the State and to the locality, 
 cannot be alleged for the purpose of impugning 
 the validity of the act. Ct App., 1872, Gor- 
 don V. Comes, 47 N..Y. (2 Sick.) 608. 
 
 186. That portion of the act of 1867, (chapter 
 
CONSTITUTIONAL LAW. 
 
 153 
 
 96) authorizing the levy of a tax in the village 
 of Brockport for the purpose of furnishing the 
 lands, buildings and furniture of a normal school 
 to be established there, — Held, valid and consti- 
 tutional, lb. 
 
 186. The power of a majority in any munici- 
 pal community to bind the minority and require 
 them to bear taxation for a purpose they disap- 
 prove, is not inherent, but is derived whoUy from 
 a grant of the legislature ; and the power of the 
 legislature is broad enough to sustain its requir- 
 ing a town to aid in the construction of a rail- 
 road, in which, in the judgment of the legislature, 
 it has a public interest. Com. App., 1874, Town 
 of Duanesburgh v. Jenkins, 57 N. Y. (12 Sick.) 
 177 ; Overruling S. C, 46 Barb. 294. 
 
 187. It may also direct how the consent of a 
 municipality to a subscription for stock and the 
 issuing of bonds shall be expressed, whether by 
 a majority of tax-payers, or by some officer, and 
 may also remit conditions originally imposed, or 
 heal defects in the performance of those condi- 
 tions, lb. 
 
 188. The act making valid bonds issued by any 
 town commissioner, where the railroad has been 
 constructed through such town, without reference 
 to the sufficiency of the proofs of consent (chap- 
 ter 402, Laws of 1849), is constitutional and 
 valid. lb. 
 
 189. The legislature cannot authorize a muni- 
 cipal corporation to issue bonds in payment for 
 stock of a private manufacturing corporation, 
 even with the consent of a majority of the tax- 
 payers, as that necessarily involves the right to 
 tax for the payment thereof, the purpose being 
 private and not public. Sup. Ct., 1875, Weismer 
 V. Village of Douglas, 4 Hun, 201. 
 
 190. The act to improve and regulate the use of 
 the Fourth Avenue, in New York City (chapter 
 702, Laws 1872), is not in conflict with section 
 13, article 7, of the Constitution. The legisla- 
 ture having power to authorize cities, &c., to 
 make improvements and to ascertain and distrib- 
 ute the cost among those who ought to pay it, 
 by means of commissioners, &c., can as well act 
 directly on the subject. That article relates to 
 State finances, while the afiairs of cities are 
 treated of in other provisions. Sup. Ct. Sp. T., 
 1874, People ex rel. N. Y. ^ Barlem R B. Co. 
 v. Savemeyer, 47 How. 494. 
 
 191. Neither is it unconstitutional in imposing 
 a tax for the benefit of the railroad company, 
 because the provisions of the law are for the 
 benefit of the city also ; but if they were not, it 
 would still be within the taxing power of the 
 legislature. lb. 
 
 192. The power to tax the persons and property 
 of individuals within the State, may be exer-. 
 cised as well to pay debts incurred before the 
 property-holder came within the jurisdiction as 
 those incurred afterward. Consequently, an act 
 extending the boundaries of a village, and in ef- 
 fect subjecting property thus brouglit in to lia^ 
 bility to taxation for the payment of corporate 
 debts already incurred is not invalid on that 
 account. Ct. App., 1863, Pumpelly v. Village 
 of Owego, 45 How. 219. 
 
 193. An act which simply enlarges the bounds 
 of a municipal corporation, does not impose, 
 continue or revive a tax, or create a debt or 
 charge, within the provision of the constitution 
 requiring the presence of three-fifths of the mem- 
 bers of the legislature at its final passage, even 
 though its effect is to subject property thereby 
 annexed to taxation for the payment of the exis- 
 ting debts of the corporation. lb. 
 
 194. ITot specifying ta2. Chapter 734, Laws 
 
 of 1872 which provides for a tax of three and a 
 half mills or " so much thereof as may be nec- 
 essary for the purposes named, is in violation 
 of section 13, art. 7, of the State Constitution, 
 which requires that every law imposing a tax 
 shall distinctly state the tax and the object to 
 which it is to be applied. Ct. App., 1873, Peo- 
 ple ex rel. Hopkins v. Board of Supervisors of 
 Kings County, 52 N. Y. (7 Sick.) 556. 
 
 195. The object of the tax is fixed only by re- 
 ference to chapter 700, Laws of the same year, 
 and hence the act is within that clause of said 
 section whicli declares that " it shall not be suf- 
 ficient to refer to any other law to fix such tax 
 or object." lb. 
 
 196. The provision of section 13, article 7, of 
 the constitution, requiring laws imposing, &c., 
 taxes, to " distinctly state the tax and the 
 object to which it is to be applied," relates only 
 to State finances and taxes ; not to taxes and 
 assessments by city and village corporations for 
 local imprin.nients. Sup. Ct. Sp. T., 1874, 
 People ex rel. iV. Y. ^ H. B. B. Co. v. Savemeyer, 
 3 Hun, 97. 
 
 197. The legislature has power to judge of 
 the relative benefits resulting to a municipal 
 corporation and a railroad company, from an 
 alteration in a public avenue over which the 
 r^lroad track passes, and to determine what 
 share of the expense shall be assessed upon the 
 city. lb. 
 
 198. An act appropriating money raised by tax 
 in a municipality for the purposes of such a 
 work does not require the assent of two-thirds 
 of the members elected to each branch of the 
 legislature. Section 9, article 1, of the constitu- 
 tion applies only to moneys belonging to the 
 State. lb. 
 
 199. Assessment for benefits. The assess- 
 ment of land benefited by a local improvement 
 not involving the taking of the land, is an exer- 
 cise of the power of taxation, and not of the 
 power of eminent domain ; and the question 
 whether lands so assessed are benefited by the 
 improvement, is one exclusively for the legisla- 
 ture. N. Y. Supr. Ct., 1874, Astor v. Mayor, 
 etc., of New York, 37 N. Y. Supr. (5 J. & Sp.) 
 539. 
 
 200. Statutes authorizing the assessment of the 
 expenses of local improvements upon the lands 
 benefited thereby are, therefore, constitutional 
 and valid. lb. 
 
 201. Vacating assessments. The provis- 
 ions of chapter 580, Laws of 1872, limiting the 
 time within which application can be made for 
 vacating assessments for the irregularities 
 therein specified, is not unconstitutional for the 
 reason that one owner, by diligence, may obtain 
 a vacation as respects his own lands, while an- 
 other, failing in that diligence, will remain 
 bound. Legally, no inequality of taxation is 
 thereby produced, as the lands relieved of the 
 assessment are required to be reassessed ; and, 
 if it is practically produced by the vigilance of 
 some and the neglect of others, it is no fault of 
 the law. Ct. App., 1873, In matter of Delancey, 
 52 N. Y. (7 Sick.) 80. 
 
 X. Commerce and navigation. 
 
 202. Game laws. The act for the preser- 
 vation of game (ch. 721, Laws of 1871,) 
 prohibiting the having in possession of game 
 during certain months, whether killed-in this 
 State or in another State where such killing is 
 not prohibited, is not in violation of the provis- 
 ion of the U. S. Constitution authorizing Con- 
 
154 
 
 CONSTITUTIONAL LAW. 
 
 gress to regulate commerce among the States 
 (article 1, section 8, subd. 3), or of any- law of 
 Congress. Ct. App., 1876, Phelps v. Racey, 60 
 N. Y. (15 Sick.) 10. 
 
 203. The States may exercise that power with- 
 in their own limits, until Congress makes regu- 
 lations on the subject. lb. 
 
 204. Private use of navigable vraters. 
 The legislature has power to grant the use of 
 navigable waters for private purposes only so 
 far as they do not impair their public use. N. 
 Y. Supr. Ct., 1874, Boeft v. Seaman, 38 N. Y. 
 Supr. (6 J. & Sp.) 62. 
 
 205. The act creating the department of public 
 docks in tlie city of New York is valid, if no 
 grant is made under it which will obstruct com- 
 merce, lb. 
 
 206. Proceedings against vessels. The 
 provisions of the Bevised Statutes, as amended 
 by chapter 79, Laws of 1859, so fari,s they at- 
 tempt to confer upon State courts jurisdiction 
 of proceedings to enforce a lien on marine con- 
 tracts, are unconstitutional, as infringing upon 
 the exclusive admiralty jurisdiction of the 
 United States courts. Com. App., 1871, Vose v. 
 Cockcroft, 44 N. Y. (5 Hand.) 415. 
 
 207. Demands against vessels. The act 
 for the collection of demands against ships and 
 vessels (ch. 482, Laws of 1862 ; 4 Edm. 
 Stats. 653), is constitutional except so far as it 
 attempts to confer jurisdiction on the State 
 courts in cases of admiralty or maritime juris- 
 diction, of which the courts of the United States 
 have exclusive jurisdiction. N. Y. Supr. Ct., 
 1871, Fisher v. Luling, 38 N. Y. Supr. (1 J. & 
 Sp.) 337. S. P. Poole V. Kermit, 59 N. Y. (14 
 Sick.) 554;AfE'g S. C-, 37 N.Y. Supr. (5 J. 
 & Sp.) 114; Brookman y. Hamill, 43 N.Y. (4 
 Hand,) 554 ; Eev'g S. C, 54 Barb. 209. 
 
 208. The act of 1862 providing for a lien upon 
 vessels, to be enforced in the State courts, sus- 
 tained, so far as it relates to materials furnished 
 for or labor performed upon a new vessel, in 
 course of construction before launching. Ct. 
 App., 1870, Sheppardv. Steele, 43 N. Y. (4 Hand,) 
 52 ; Aff'g S. C, 3 Lans., 417. 
 
 XL Eights op citizens. 
 
 209. Equal privileges. A regulation of the 
 Board of Public Instruction of a city, who have 
 full control of all the schools therein, assigning 
 a particular school for colored children, and 
 excluding them from the schools assigned 
 to white children, all of said schools fur- 
 nishing equal advantages for common school 
 education, is not in violation of the four- 
 teenth amendment of the constitution of 
 the United States, by which the States are 
 prohibited from making or enforcing any law 
 which shall abridge the privileges and immuni- 
 ties of citizens of the United States. Sup. Ct. 
 Chambers, 1872, People ex rel, Dietz v. Easton, 
 18 Abb. N. S. 159. 
 
 210. Registry law. The provision of section 
 6, chapter 570, Laws of 1872, that no vote shall 
 be received unless the name of the person offer- 
 ing to vote be on the register, made as therein 
 provided, does not take away or unreasonably 
 restrict the right of suffrage, but is constitution- 
 al and valid. Its validity is not affected by the 
 fact that the right to vote may be lost, not by 
 any act of the elector, but through the act or 
 omission of the fegistering officers. Sup. Ct., 
 People ex rel. Frost v. Wilson, 3 Hun, 487 ; 
 Kev'd by Ct. App. 
 
 XII. Officebs ; election and appointment. 
 
 211. TWhat is an ofSce. A legislative ap- 
 pointment as a member of a board to' determine 
 and certify as to the genuineness of relics pro- 
 posed to be purchased by the State, is not an 
 " office or public trust" within the meaning of 
 section 10, article 6, -of the constitution, which 
 prohibits the judges of the Court of Appeals 
 from holding any" other office or public trust. 
 Ct. App., 1873, People ex rel. Washington v. 
 NichoU, 52 N. Y. (7 Sick.) 478. 
 
 212. Abolishing office. The act abolishing 
 the office of assistant Alderman in the city of 
 New York and transferring its powers and 
 duties to the Board of Aldermen ( ch. 335, 
 Laws of 1873,) was constitutional and valid. 
 Sup. Ct., 1876, Detharest v. Wickham, 4 Hun, 
 627. 
 
 213. Election or appointment. The ob- 
 vious purpose of section 2, article 10, of the con- 
 stitution, was to secjire to the several recognized 
 civil and political divisions of the State, the 
 right of local self-government, by requiring that 
 all local officers, except such as might thereafter 
 be created by law, should be chosen by the 
 electors or appointed by local authorities to be 
 designated by the legislature ; and as to offices 
 in existence at the time of its adoption, this pro- 
 vision is absolute in its prohibition of an ap- 
 pointment in any other manner. Ct. App., 1873 
 People ex rel. Bolton v. Albertson, 56 N. Y. (10 
 Sick.) 50. 
 
 214. The constitution cannot be evaded by a 
 change in the name of an office, nor can an ofBce 
 be divided and the duties assigned to two or 
 more officers under different names, and the ap- 
 pointments to the offices made in any manner 
 except as authorized by the constitution, lb. 
 
 215. An act appointing commissioners to do 
 certain things in relation to the improvement of a 
 street, is not in violation of section 2, article 10 of 
 the Constitution. Sup. Ct. Sp. T., 1874, People 
 ex rel. New York S/- Harlem Ji, R. Co. v. Have- 
 meyer, 47 How. 494. 
 
 216. The acts providing for the appointment of 
 special commissioners and the laying out of 
 Union Avenue, in the village of Saratoga Springs 
 (ch. 623, of 1870 ; chapters 293, 600, of 1872), are 
 constitutional and valid. Sup. Ct., 1875, People 
 ex rel. Kilmer v. McDonald, 4 Hun, 187. 
 
 217. A statute which requires that a majority 
 of the commissioners appointed to make a new- 
 assessment should be new men, other than the 
 former commissioners, is not in violation of the 
 constitutional provision giving the appointing 
 power to the court. Sup. Ct., 1872, In matter of 
 Broadway widening, 63 Barb. 672. 
 
 218. Senate in session. Where the sittings 
 of the Senate have been terminated by an ad- 
 journment for several months, although the 
 session is continued, it is not " in session," with- 
 in the meaning of article 6, section 9, of the 
 Constitution, so that an appointment of a justice 
 of the Supreme Court by the governor during 
 the interval, will be valid. Ct. App., 1872, Peo- 
 ple V. FancUr, 50 N. Y. (5 Sick.) 288. 
 
 219. Changing time of election. The right 
 of the Legislature to fix the times and places for 
 the election of officers, is not exhausted by being 
 once exercised, but it has power, from time to 
 time, as it sees occasion, to establish a different 
 time or place. Ct. App., 1871, People ex rel. 
 Fowler v. Bull, 46 N. Y. (1 Sick.) 57. 
 
 220. Although a statutory provision chang- 
 ing the time for an election was made with 
 reference to another provision in a different seo- 
 
CONSTITUTIONAL LAW— CONTEMPTS. 
 
 155 
 
 tion extending the term ' of incumbents, which 
 was unconstitutional, it is not, therefore, neces- 
 sarily void ; but where it is so independent of 
 the other, as that it is intelligible and may be 
 operative alone, it will be sustained. lb. 
 
 221. Disqualifying aot. Acts disqualifying 
 persons holding certain ofBces from being elected 
 or appointed to certain other ofiSces, are not in 
 violation of the constitutional rights of citizens 
 to vote for candidates of their choice, or to hold 
 offices. Sup. Ct. Sp. T. 1872, People ex rel. Fur- 
 man v. Clute, 12 Abb. N. Y., 399 ; AfPd S. C, 63 
 Barb. 356 ; 80 N. Y. (5 Sick.) 451. 
 
 222. The acts disqualifying town supervisors 
 and county treasurers for election or appoint- 
 ment to the office of county superintendent 
 of the poor ( ch. 352, Laws 1829; ch. 80, 
 Laws 1853), and the provision of the charter of 
 Schenectady (ch. 385, Laws 1862) subjecting 
 ward supervisors to all provisions of law ap- 
 plicable to other supervisors, are constitutional 
 and valid. lb. 
 
 223. Commissioners, appointed to receive and 
 expend moneys raised by tax for the construc- 
 tion of a public highway, with power to take 
 private property therefor upon making compen- 
 sation, are officers, within the meaning of sec- 
 tion 1, article 10 of the Constitution, and the 
 election of one to the office of sheriff, and its 
 acceptance by him, operate to vacate his office 
 as commissioner. Ct. App., 1871, People ex rel. 
 Henrii v. Nostrand, 46 N. Y. (1 Sick.) 375. 
 
 224. Extending term. Under section 18, 
 article 6, of the Constitution of 1846, providing 
 that all judicial officers " shall be electedat such 
 times and in such manner as the Legislature may 
 direct," the Legislature has no power, after hav- 
 ing created an office and prescribed its term, 
 and after an election held therefor, to enact a 
 law extending the term of the incumbent be- 
 yond that first prescribed and for which he was 
 chosen. Ct. App., 1861, People ex rel. Fowler v. 
 B«ZZ, 46N. Y. (1 Sick.) 57. 
 
 225. Town collectors are town officers whose 
 election or appointment is not provided for by 
 the Constitution ; hence, under section 2, arti- 
 cle 10, the office can be filled in no other way 
 than by election by electors of the town, or by 
 appointment made by such local authorities as 
 the Legislature may have designated. A statute, 
 therefore, extending the term of office of incum- 
 bents, being an attempt to exercise the power of 
 appointment, is invalid. Ct. App., 1873, People ex 
 rel. Williamson v. McKinney, 62 N.Y. (7 Sick.) 874 
 
 226. It is competent for the Legislature, how- 
 ever, by statute, to extend the term of office of 
 collectors thereafter to be elected. lb. 
 
 227. Commissioners of Records. The act 
 creating Commissioners of Records for the city 
 and county of New York (ch. 407, Laws 1865), 
 imposes upon those officers the same duties which 
 at the time of the adoption of the present Con- 
 stitution were required of local officials, and is 
 therefore unconstitutioufil, although it also grants 
 additional powers. Sup. Ct. Sp. T., 1872, People 
 ex rel. Kingsland v. Bradley, 42 How. 423. But 
 see S. C, 64 Barb. 228. 
 
 228. But the Legislature had power to, and did, 
 by a subsequent act, direct the payment of ex- 
 penses incurred by the acts of the commission- 
 ers. S. C, 64 Barb. 228. 
 
 229. The duties of the office of Commissioners 
 of Egcords for the city and county of New 
 York, under chapter 407, Laws of 1855, were 
 not the same as those devolved upon the Reg- 
 ister of said city and county ; hence, the office 
 was not one existing at the time of the adoption 
 
 of the Constitution, and the act is not uncon- 
 stitutional because not providing for an appoint- 
 ment or election to it by the county authorities 
 or by the electors of the county. Ct. App., 
 1873, People ex rel. Kingsland v. Palmer 52 N. Y. 
 (7 Sick.) 83. 
 
 230. Police Justices in the city of New York 
 are not included in the terms justices of the 
 peace in cities, as used in article 6, section 18, 
 of the State Constitution ; and chapter 638, 
 Laws of 1873, providing for their appointment, 
 is, therefore, constitutional and valid. Church, 
 Ch. J., and Allen, J., dissent. Ct. App., 1874, 
 Wemler v. People, 58 N. Y. (13 Sick.) 516 ; Peo- 
 ple V. Morgan, id. 679. 
 
 231. Receiver of taxes. The office of re- 
 ceiver of taxes for the town of Newtown, Queens 
 county, provided for by chapter 385, Laws of 
 1871, is not a new office, but is in substance the 
 same as that of town collector. Its incumbent 
 is a town officer whose election or appointment 
 is not provided for by the Constitution, and he 
 can only reach his office by election by the peo- 
 ple, or by appointment by such authorities of 
 the town as the Legislature shall direct ; hence, 
 the provision of section 1 of said act, extending 
 the term of office of the then incumbent of the 
 office of town collector, under the name of re- 
 ceiver of taxes, is unconstitutional and void. 
 Ct. App.. 1873, People ex rel. Lord v. Crooks, 63 
 N. Y. (18 Sick.) 648. 
 
 232. State Engineers. The creation by the 
 Legislature of a Board of State Engineers, to 
 superintend work in changing the tracks of a 
 railroad in a city street is not a violation of sec- 
 tion 2, article 10, of the Constitution. Sup. Ct. 
 Sp. T, 1874, People ex rel. N. Y. ^ H. R. k Co. 
 V. Havemeyer, 3 Hun, 97. 
 
 CONSTRUCTION. 
 
 See Constitutional Law ; Conteaots ; 
 PLEADiNas; Statutes; Wills. 
 
 CONSTRUCTIVE POSSESSION. 
 See Adveebb Possession ; Sale ; Teespass. 
 
 CONTEMPTS. 
 
 I. Geneeal ;"'what punishable 155 
 
 II, Peoceedings foe contempt 157 
 
 III. Disabilities ; punishment 168 
 
 I. Geneeal; What Punishable. 
 
 1. Attachment for, in civil cases. An at- 
 tachment as for a contempt, to enforce a civil 
 remedy, can be issued only upon proof of the 
 facts charged by affidavit. The statute (2 Edm. 
 Stats. 654), is imperative. N. Y. C. P., 1869, Ack- 
 royd V. Ackrmjd, 3 Daly, 38. 
 
 2. Jurisdiction. A judge, who has signed a 
 summons for the examination of a party before 
 trial, containing a notice that his answer will be 
 stricken out if he fails to appear, cannot make 
 an order, ex parte, striking out the answer for 
 such failure ; neither, it seems, could the court 
 punish him for such contempt, without previous 
 service on him of copies of affidavits charging 
 him with his misconduct, and allowing him a 
 
156 
 
 CONTEMPTS. 
 
 reasonable time to make his defense, upon regu- 
 lar notice, order to show cause, or bailable at- 
 tachment. N. T. C. P. Sp. T., 1872, Thauk v. 
 Ritter, 13 Abb. N. S. 439. 
 
 3. PoTver to punish for. The power posses- 
 sed by courts of punishing for contempts, and 
 for refusal to give evidence, is, in its nature, an 
 exception to the provisions of the constitution 
 in favor of personal liberty, and it cannot be ex- 
 tended in the least degree beyond the limits im- 
 posed by statute. Sup. Ct., 1875, Rutherford v. 
 Holmes, 6 Hun, 317. 
 
 4. A justice of the peace has no power to 
 punish " as for contempt," the refusal of a wit- 
 ness to answer questions ; and can only commit 
 a witness for such a refusal, upon the required 
 affidavit being made by the party at whose in- 
 stance he attended. lb. 
 
 5. Disregard of stay. If, pending a stay of 
 proceedings on an execution, the creditor's at- 
 torney induces the sheriff to pay over to him 
 the proceeds of the goods levied on, the court 
 will, on motion, order such proceeds to be re- 
 turned to an officer of the court to abide its 
 further order. N. Y. C.P., 1870, ie/ond v. Smith, 
 3 Daly, 309. 
 
 6. An appeal taken, from an order where 
 none is authorized, is no answer to a motion to 
 punish a party as for a contempt for disobedi- 
 ence of such order. lb. 
 
 7. Fraud in obtaining order. A person 
 who procures an order for the payment of money 
 to him by the fraudulent suppression of material 
 facts, and obtains the money thereon, may prop- 
 erly be proceeded against by attachment to 
 compel restitution of the money ; especially if 
 he be an attorney. Sup. Ct., 1873, Wilmerdings 
 V. Fowler, 46 How. 142 ; Aff'd by Ct. App., S. 
 C, 14 Abb. N. S. 249. 
 
 8. Non-delivery of property, indisputably 
 .belonging to the judgment debtor against whom 
 
 supplementary proceedings are being prosecuted, 
 in compliance with an order made in such pro- 
 ceedings, would be a wilful contempt, and 
 punishable as such. Ct. App., 1872, West Side 
 Bank v. Pugsley, 12 Abb. N. S. 28 ; S. C, 47 N. 
 Y. (2 Sick.) 368. 
 
 9. The word " property " as used in section 
 297 of the Code, does not include debts, but is 
 limited to goods or specific money ; and the pay- 
 ment of a debt due to the judgment debtor from 
 a third person, cannot be compelled in supple- 
 mentary proceedings against such judgment 
 debtor, by process for contempt. lb. 
 
 10. Non-payment Of alimony. An attach- 
 ment may lawfully issue against a defendant for 
 the non-payment of alimony, as required by a 
 final judgment of divorce ; and under it he may 
 be committed to close confinement in jail. Siy). 
 Ct. Sp. T., 1871, Lansing v. Lansing, 41 How. 
 248 ; Eev'd.S. C, 4 Lans. 377. 
 
 11. A defendant so imprisoned ought not to 
 be discharged from imprisonment on the ground 
 of inability to pay, where it appears by the mo- 
 tion papers that, for a year and a half after the 
 decree against him for alimony and costs, 
 amounting to some $400, he had not paid any 
 part of it, nor apparently made any effort to 
 earn money to pay it, and he does not show 
 why he had not made any such effort, although 
 he swore to his inability. lb. 
 
 12. An order for the payment of a sum of 
 money as temporary alimony, in an action for 
 divorce, being interlocutory, cannot be enforced 
 by execution, that process being allowed only 
 on final judgment, or for interlocutory costs; 
 and there is no remedy for the collection of such 
 
 alimony except by committal to prison, under 
 section 4 of the statute relating to " proceedings 
 as for contempt," etc., (2 R. S., 534), or by se- 
 questration of the property of the husband, 
 which, if the power still exists, is merely a 
 cumulative remedy. N. Y. Supr. Ct. Sp. T., 
 1871, Ford v. Ford, 41 How. 169 ; S. P., 10 Abb. 
 N. Y. 74. 
 
 13. It has been held, that the common-law 
 power to punish for such contempts has not 
 been taken away by the statute ; but, so far as 
 the power is derived from the statute, it can 
 only be exercised in the manner prescribed 
 therein, and that is, in the case of disobedience 
 of an order to pay money, by precept and com- 
 mittal to prison. lb. 
 
 14. Such precept will be sufficient, if it recites 
 the order for the payment of the money, and 
 contains a command to the sheriff to commit 
 the person to prison, leaving the right of the 
 prisoner to go upon the jail limits an open ques- 
 tion between him and the sheriff. lb. 
 
 15. Non-payment of costs by attorney. 
 Where an attorney fails to pay costs charged 
 upon him by order of court, he may be com- 
 mitted to the countyjail until payment. Sup. 
 Ct., 1875, Kelly, In Matter of, 3 Hun, 636 ; Aff'd 
 by Ct. App. 
 
 16. It is not necessary that the order impos- 
 ing such costs should specify the amount, but it 
 is sufficient that it be duly taxed on notice to 
 the attorney. lb. 
 
 17. Non-payment of money. A writ of man- 
 damus not sealed with the seal of the court, is 
 not sufficiently authenticated to be the basis of 
 proceedings for contempt for the non-payment 
 of money as thereby required. Sup. Ct., 1874, 
 People ex rel. Clapp v. Fish, 1 Hun, 464. 
 
 18. Where several writs are issued, requiring 
 a mere depositary of money to pay over to the 
 several relators the amounts due them, and the 
 depositary not intending any contempt, but act- 
 ing under legal advice, pays the relators whose 
 writs are sealed in preference to one whose writ 
 was served first, but was not sealed, he cannot 
 be punished as for a contempt. lb. 
 
 19. A person to whom the rents of mortgaged 
 premises were assigned by the owner of the 
 equity of redemption, before the appointment 
 of a receiver of such rents in an action to fore- 
 close the mortgage, to which he was not a party, 
 cannot be punished as for a contempt, for after- 
 ward collecting rents from tenants who were not 
 parties to the suit and had not attorned to the 
 receiver, and refusing to pay the same over to 
 the receiver, although he had notice of his ap- 
 pointment. Sup. Ct., 1875, Bowery Savings Bank 
 V. Richards, 3 Hun, 366. 
 
 20. Putting in insufficient bail. One who, 
 as agent for a party to a suit, procures a person 
 to become surety for his principal, knowing him 
 to be utterly insufficient, and represents him or 
 causes him to represent himself to the court as 
 sufficient, or to take a false oath in justification, 
 will be punished for contempt, although not a 
 party to the suit. N. Y. C. P. Sp. T., 1875, Hull 
 V. L'Eplattimer, 49 How. 500. 
 
 21. Recusant juror. A person employed by 
 the year in an establishment where castings, 
 farming implements and machinery are made 
 from melted pig and old iron, is not within the 
 provisions of the statutes (2 B. S. 415, section 
 33; 2 Edm. Stats. 432), exempting from jury 
 duty a person in the actual employment of an 
 "iron manufacturing company," etc; conse- 
 quently he may properly be committed for con- 
 tempt, for refusing to appear and serve as a 
 
CONTEMPTS. 
 
 157 
 
 juror in a justice's court, when regularly sum- 
 moned as such. Sup. Ct., 1871, People ex rel. 
 Blake v. Holdridge, 4 Lans. 511. 
 
 22. Recusant -nritness. In an action to re- 
 strain the furnishing of foreign news despatches, 
 surreptitiously obtained by the defendant, to the 
 plaintiff's rivals in business, the defendant hav- 
 ing testified that he obtained the news directly 
 by cable, and that the despatches came to a 
 banking house, may properly be adjudged guilty 
 of a contempt, and punished therefor by fine 
 send imprisonment, for refusing to answer the 
 question, "What banking house was that?" 
 the plaintiff being entitled to know, in order to 
 examine the bankers on the subject. Sup. Ct., 
 1874, Kieman v. Abbott, 1 Hun, 109. 
 
 ^3. A justice of the peace, holding a court of 
 special sessions, has jurisdiction and authority 
 to punish a person as for criminal contempt of 
 such court, for wilfully and contemptuously re- 
 fusing to Ije sworn as a witness by or before 
 such court, or by or before him while holding 
 such court as a justice of the peace, he having 
 been duly subpoenaed as a witness and being 
 present. Sup. Ct., Cir., 1873, Bowen v. Hunter, 
 45 How. 193. 
 
 24. Disobedience of a subpcena duces tecum, 
 issued in connection with a summons for the 
 examination of a party before trial, may be 
 punished as a contempt. N. Y. Supr. Ct., 1869, 
 Central Nat. Bank of New York v. Arthur, 2 
 Sweeny, 194. 
 
 25. Jurisdiction of supplementary proceed- 
 ings is lost, unless they are <;ontinued by ad- 
 journment, and a witness cannot be punished as 
 for a contempt for not appearing and testifying 
 in such proceedings at a time subsequent to 
 that specified in the order for the examination 
 of the judgment debtor, unless the proceedings 
 were adjourned to that time, or the debtor no- 
 tified of such examination. . N. Y. C. P. Sp. T., 
 1874, Thomas v. Kircher, 15 Abb. N. S. 842. 
 
 26. Violation of injunction. A judgment 
 debtor who borrowed money after an injunction 
 order had been granted against him, but before its 
 service on him, is not guilty of a violation of the 
 order in afterward paying out such money. 
 Only property received, earned, or due before 
 the making of the order is affected therebv. N. 
 Y. C. P. Sp. T., 1872, Atkinson v. Sewine, 43 How. 
 84 ; 11 Abb. N. S. 384. 
 
 27. A conveyance of property by one who is 
 by an injunction restrained from parting with 
 his property, even though made after a stay of 
 proceedings pending a motion for a new trial, 
 and after a failure to adjourn supplementary 
 proceedings in which such injimction was grant- 
 ed, and after the granting of an order for a new 
 trial and before the reversal of that order, sub- 
 jects the judgment debtor to punishment for 
 contempt. N. Y. Supr. Ct., 1873, Woolf v. 
 Jacobs, 36 N. Y. Supr. (4 J. & Sp.) 408. 
 
 28. The fact that the property so conveyed 
 reaUy belonged to the wife of the debtor, the 
 title being in him, does not prevent his liability 
 for contempt in conveying it. lb. 
 
 29. An officer of the American Society for 
 the prevention of cruelty to animals, who has 
 been enjoined from stopping the vehicles of a 
 stage company, except for the purpose of 
 making an arrest in a clear case of violation of 
 the law relating to cruelty to animals, should 
 not be punished as for a contempt in violatipg 
 the injunction, for stopping a vehicle and arrest 
 ing a driver, where there were suflicient facts on 
 which to base a sound judgment that an offense 
 against that law was being committed, even 
 
 though upon trial the driver was acquitted. N. 
 Y. C. P. Sp. T., 1873, Broadway, etc., Stage Co. 
 V. American So. for prevention of cruelty to an- 
 imals, 15 Abb. N. S. 51. 
 
 n. Proobbdinos fob contempts. 
 
 30. Appeal pending. It is no defense in a 
 proceeding for a contempt in disobeying an 
 order, that an appeal Is pending from suchorder, 
 if proceedings have not been stayed. Ct. App., 
 1873, People ex rel. Day v. Bergen, 16 Abb. N. S. 
 97 ; S. C, 53 N. Y. (8 Sick.) 404. 
 
 81. Disability to obey an order, caused by 
 his own acts, is no excuse for disobedience of 
 such order. lb. 
 
 82. Irregularity. It is no objection to the 
 validity of an order of court for the issuing of 
 a commitment for a receiver, who refuses, on 
 personal demand made on him, to pay over to 
 the proper party under an order of the court; 
 the amount found due from him on settlement 
 of his accounts, together with a specified sum 
 for referee's fees, nor is it an objection to the 
 process of commitment, or ground for discharge 
 therefrom, that they are for a less amount than 
 was demanded, the referee's fees being deducted. 
 N. Y. Supr. Ct Sp. T., 1874, O'Mahony v. Bel- 
 mont, 48 How. 29. 
 
 33. An irregularity in the order for the ap- 
 pearance of the defendant, which does not mis- 
 lead him, such as requiring him to show cause 
 why he should not be " attached," in place of 
 "punished," for a contempt, is not sufficient 
 ground for setting aside the order punishing him 
 for contempt, especially where such irregularity 
 is not specified as a ground for the motion. Sap. 
 Ct., 1874, People ex rel. Tull v. Kenny, 2 Hun, 
 346. 
 
 34. Motion to vacate. Upon a motion to 
 vacate an attachment for contempt, which is 
 regular on its face and contains all the recitals 
 essential to confer jurisdiction, the moving party 
 must show affirmatively the defect or omission 
 on which he bases his motion, or by affidavit 
 create such a presumption as will throw upon 
 the adverse party the onus of proving - that his 
 proceedings are regular. N. Y. C. P., 1870, 
 Baker v. Stephens, 10 Abb. N. S. 1. 
 
 35. Where the attachment recites the filing of 
 the proofs necessary to confer the jurisdiction, 
 the court on appeal will take notice of the ex- 
 istence of the jurisdictional facts, though not 
 set forth in the moving affidavits. lb. 
 
 36. Reference. Upon proceedings for a crim- 
 inal contempt, which the party charged denies 
 by an affidavit setting forth facts to sustain 
 such denial, the court may, in its discretion, 
 send the matter to a referee to take testimony 
 before rendering its decision. Sup. Ct., 1874, 
 People ex rel. Alexander v. Alexander, 3 Hun, 211, 
 
 37. In proceedings commenced by order to 
 show cause, under the provisions of 2 R. S. 534, 
 an order of reference may be made without 
 requiring interrogatories to be first filed. lb. 
 
 88. Where proceedings for a contempt in vio- 
 lating an injunction are referred to a referee 
 " to take testimony in regard to the same and 
 report " with his opinion, it is his duty to take 
 proof as to, and determine the extent of, the 
 loss and injury sustained by the plaintiff by the 
 violation of the injunction. Sup. Ct., 1874, 
 Harteau v. Deer Park Blue Stone Co., 1 Hun, 493. 
 
 39. An adjudication or order of the county 
 judge, in proceedings before him as for a con- 
 tempt to enforce a civil remedy, which recites 
 that the person proceeded against had been 
 
158 
 
 CONTRACT. 
 
 guilty of the miBConduct charged in failing to 
 appear and be examined in supplementary pro- 
 ceedings, and that such misconduct and eon- 
 tempt was calculated to and did actually impair, 
 impede, defeat and prejudice the rights of said 
 plaintiff," &e., and that he was guilty of a con- 
 tempt, and orders him to pay a fine, which is 
 expressly declared to be imposed to indemnify 
 the plaintiff in the action, not only for his costs 
 and disbursements in that proceeding, but also 
 " for the damage and loss sustained by said con- 
 tempt, in the defeat of said proceeding," is 
 sufficient in form, and shows that it did appear 
 to the judge that the plaintiff had sustained 
 damage and loss, the recital, though defective, 
 not being essential to its validity. Sup. Ct., 
 1871, Rugg v. Spencer, 59 Barb. 383. 
 
 40. Commitment. The Statute (2K. S. 278, 
 section 11,) limits the period of imprisonment 
 for contempt to thirty days, and a commitment 
 for an indefinite time is illegal. Sup. Ct, Cham- 
 bers, 1873, Shank's Case, 15 Abb. N. S. 38. 
 
 41. A person imprisoned for contempt under 
 such an illegal commitment, cannot be held 
 under one subsequently issued which limits the 
 period to not exceeding thirty days. lb. 
 
 42. A commitment for contempt in refusing 
 to deliver possession of property, in pursuance 
 of an order of court, is bad if it does not show 
 on its face that the person committed had pos- 
 session or control of the property. The court 
 on habeas corpus cannot go back to the papers 
 used on the motion to sustain or discharge a de- 
 fective commitment. Sup. Ct. Sp. Ct., 1874, 
 People ex rel. Walters v. Conner, 15 Abb. N. 
 S. 430. 
 
 43. Where one of several chattels levied upon 
 by a marshal on execution from the Marine 
 Court, was pawned by liis men, and was re- 
 deemed by the auctioneer employed by the 
 marshal, who refused to deliver it up on an 
 order requiring all persons having in possession 
 goods levied on by the marshal to deliver them 
 to the defendant, until reimbursed, that court 
 had no power summarily to determine the right 
 of possession, and punish him as for a con- 
 tempt, lb. 
 
 44. Motion papers on which a commitment 
 is granted should not be used on a new motion 
 for a commitment after the first has been dis- 
 charged on habeas corpus, but new ones should 
 be made. lb. 
 
 m. Disabilities ; Funibhmbitt. 
 
 46. Disabilities. The fact that a party is in 
 contempt for disobeying an order, does not pre- 
 vent him from moving to vacate that order for 
 irregularity. He is prevented from applying 
 for that which rests to some extent at least, in 
 the favor of the court, but not from applying 
 for that to which he is entitled as a matter of 
 strict right. Sup. Ct,, 1874, Spratt v. Huntington, 
 48 How. 97. S. C, 2 Hun, 341. 
 
 46. A resident of this State who, in disobe- 
 dience of a decree of divorce rendered against him 
 here on the ground of adultery, which prohibits 
 him from marrying again during the life of his 
 divorced wife, goes to another State and there 
 contracts a second marriage, immediately re- 
 turning to this State to live, cannot while in 
 such contempt be permitted to prosecute here 
 an action agamst his second wife for divorce on 
 the ground of adultery. Daniels, J., dissents. 
 Sup. Ct., 1874, Marshall v. Marshall, 48 How. 
 57 ; S. C, 2 Hun, 238. 
 
 47. Stay of appeal. A court, having control 
 
 over its own proceedings, may refuse the bene, 
 fit of them to a party adjudged in contempt, 
 when asked as a favor ; but the Special Term 
 has no power to direct, as part of the punish- 
 ment for the contempt that the party's appeal 
 from the order, for disobedience of which he is 
 punished, be stayed. Ct, App., 1871, Brinkley 
 V. Brinkley, 47 N.Y. (2 Sick.) 40. 
 
 48. Pine for. In imposing a fine for a con- 
 tempt the court is authorized to impose a sum 
 sufficient to indemnify the party injured and sa- 
 tisfy liis costs and expenses (2 Edm. Stats 557), 
 but it cannot add thereto a counsel fee. Sup. 
 Ct., 1875, People ex rel. Woolfy. Jacobs, 5 Hun. 
 428. 
 
 49. Such an unauthorized addition will not, 
 however, render the commitment void, b.ut the 
 person committed may lawfully be held in cus- 
 tody under it until lie pays the sums legally ad- 
 judged against him, lb. 
 
 50. Imprisonment. The statute (2 K. S. 635, 
 § 4 ; 2 Edm. Stats. 854), prescribes the remedy 
 for " disobedience of a rule or order requiring the 
 payment of money, " viz. : imprisonment until 
 payment thereof with costs and expenses, and 
 that remedy is exclusive. A surrogate cannot, 
 for such disobedience, inflict a fine and then 
 commit upon the fine, but his execution or pre- 
 cept should, be the ordinary execution against 
 the body. Sup. Ct., 1872, In matter of Watson, 
 5 Lans. 466 ; Aff'g S. C, 8 Lans. 408. 
 
 51. The proceeding for hearing the party upon 
 interrogatories before commitment it seems is 
 appropriate only in cases coming under the pre- 
 ceding section of the statute, where a fine may 
 be imposed. lb. 
 
 52. If a witness, duly summoned to testify be- 
 fore a grand jury, appears but refuses to answer 
 a proper question put to him in the course of his 
 examination, the court has power to commit 
 him to the common jail until he answers such 
 question, and not for thirty days merely. Sup. 
 Ct., 1874, People ex rel. Phelps v. Fancher, 2 Hun, 
 226. 
 
 53. Such a commitment is regular and lawful 
 both at common law, and under our statute re- 
 lating to " proceedings as for contempts to en- 
 force civil remedies and protect the rights of par- 
 ties," (2 Edm. Stats. 552), which alone are made 
 applicable to trials and proceedings upon indict- 
 ments, lb. 
 
 54. For an attempt to bribe a juror in a crim- 
 inal case so as to produce a disagreement of the 
 jury, the court imposed the highest punishment 
 authorized by law, viz. : imprisonment for thirty 
 days and a fine of $250, with commitment until 
 paid ; or for thirty days. Oy. & Ter., 1874, Klug- 
 man Case, 49 How. 484, 
 
 55. Costs. The costs which may be included 
 in the fine for a contempt, are those which are al- 
 lowed by statute, and not those usually called 
 " counsel fees," and it is improper to include 
 therein an allowance for counsel fees in the pro- 
 ceedings ; and if such an allowance be included 
 in the gross fine imposed, it renders the whole 
 illegal and improper. Sup. Ct. Chambers, 1876, 
 In matter of Jacobs, 49 How. 370. 
 
 CONTRACT. 
 
 I. In geneeal; pakties; considera- 
 tion; conouebence; mutdalitt,, 168 
 II. Law of place 162 
 
 HI. CONSTEDCTION 162 
 
 a. In 6ENEEAL. 
 
CONTRACT. 
 
 159 
 
 b. Pakticulak contracts. 
 IV. Optional, alternative and contin- 
 uing CONTRACTS 168 
 
 V. Conditions 169 
 
 VI. Alteration, Modification and Eb- 
 
 FOEMATION 171 
 
 VII. Rescission 172 
 
 VIII. Performance 175 
 
 IX. Validity -,... 177 
 
 I. In general; Parties ; Consideration ; Con- 
 currence ; Mutuality. 
 
 1. Parties. A contract, which, in the body of 
 it. mentions three persons as parties, but is sign- 
 ed by only two, la prima facie the contract of 
 those two, and the onus is on the one claiming 
 not to be bound by it to show that his signature 
 was conditional upon its execution by the third 
 party. Ct. App., 1870, Dillon v. Anderson, 43 N. 
 T. (4 Hand,) 231. 
 
 2. The declaration of his intention not to be 
 bound,, should be made at the time of executing 
 and delivering the contract. lb. 
 
 3. Infant. A promise of marriage made by an 
 infant is not binding, unless executed, and no 
 action will lie against the infant for a breach 
 thereof. Sup. Ct., Sp. T., 1872, Feibel v. Ober- 
 shy, 18 Abb. N. S. 402, note. 
 
 4. Lunatic. A contract made with a person 
 not known to be of unsound mind, and who has 
 not been found to be insane upon a commission 
 de lunatico, may be sustained if proved to have 
 been fairly made, and without any advantage 
 being taken of the lunatic. Sup. Ct., 1875, 
 Beckwith, In matter of, 3 Hun, 443. 
 
 6. If the circumstances were such as to put a 
 party upon inquiry as to the mental condition of 
 the lunatic, neither money advanced, nor com- 
 pensation for services performed, can be recov- 
 ered from him. lb. 
 
 6. The law will imply a contract on the part 
 of a lunatic, even after inquest and the appoint- 
 ment of a committee, to pay for necessaries fur- 
 nished for the support of himself and family. lb. 
 
 7. Public enemy. A resident of that part of 
 Tennessee to which the president's proclamation 
 of Aug. 16, 1861 prohibiting "all commercial 
 intercourse " between its inhabitants and citizens 
 of the loyal States applied, who remained there 
 after the proclamation, must be held, in the ab- 
 sence of proof of his loyalty or disloyalty to the 
 Union, to be incapable of making a valid com- 
 mercial contract with a citizen of a loyal State. 
 Sup. Ct., 1870, Lefiwich v. Clinton, 4 Lans. 176. 
 
 8. But-a partner of such person, who fled from 
 that part of the State into the Union lines at the 
 breaking out of the war, and remained there 
 adhering to the Union, although obliged to make 
 provision for his family near his former resi- 
 dence, was not within the prohibition, and could 
 make such a contract. lb. 
 
 9. The war ipso facto, terminated the partner- 
 ship, and a contract made by the loyal partner 
 in behalf of the firm for the purchase of cotton 
 on unprohibited territory, during the continuance 
 of the proclamation, became in effect the con- 
 tract of the loyal partner, and in a suit thereon 
 in the name of both, continued in his name as 
 survivor after the death of the other, his rights 
 should be protected, notwithstanding its invalid- 
 ity as to the other partner. lb. 
 
 10. Wlien implied. The law impUes a 
 promise to pay the value of property received 
 under a contract, where such contract is void by 
 the statute of frauds, and the party refuses to 
 perform it for that reason. Sup. Ct., 1875, Wood 
 T. Shiiltis, 4 Hun, 309. I 
 
 11. If a person entrusted with the charge of a 
 canal boat, to be delivered by him to a keeper 
 for the winter, wrongfully uses it to convey a 
 cargo of oats, and, after collecting the freight, 
 leaves it loose in the harbor, and the owners of 
 the oats interfere with the boat after the owner 
 thereof has taken her in charge and notified 
 them of his rights, they are trespassers ; and for 
 the use of the boat for storage until unloaded, 
 the law would imply a promise on their part to 
 pay such owner. Sup. Ct., 1869, Beadle v. Whit- 
 lock, 64 Barb. 287. 
 
 12. If they cause the boat to be unloaded, 
 and thus bring a legal charge upon the boat, 
 which the owner is obliged to pay in order to 
 repossess himself of it, they are liable to repay 
 the amount. lb. 
 
 13. A promise, made after the boat was un- 
 loaded, to pay for her previous use for storage, 
 was founded upon a suflScient consideration, 
 viz., the waiver of the tort. lb. 
 
 14. Where, by the terms of a contract for the 
 construction of sewers, the city is authorized to 
 complete the work, in case the contractor aban- 
 dons it, using such materials as may be found, 
 along the line, if the contractor does abandon it, 
 and one who has furnished him stone for " cul- 
 vert heads," to be paid for when they were set 
 and passed by the engineer, knowing the terms 
 of his contract, stands by and sees the city using 
 such stones to complete the work without ob- 
 jecting or asserting any claim to them, he can- 
 not afterward claim compensation therefor from 
 the city as upon an implied promise, such taking 
 not being a recognition of his ownership. Ct. 
 App., 1873, Hogan v. Citt/ of Brooklyn, 52 N. T. 
 (7 Sick.) 282. 
 
 15. When a contract, as for grading and pav- 
 ing a public street, is finally drawn up and ex- 
 ecuted, the maps, profiles, estimates and pro- 
 posals, before then made, constitute no part of 
 it except as therein referred to ; and no contract, 
 based upon an estimate not so referred to, as 
 for compensation for extra work, will be implied. 
 Ct. App., 1871, Riley v. City of Brooklyn, 46 N. 
 T. (1 Sick.) 444 ; Bev'g S. C., 56 Barb. 559. 
 
 16. Services to third person. A person 
 who, on calling at the office of a physician and 
 finding him absent, writes upon his own business 
 card, " call on Mrs. D — , at No. 769 Broadway," 
 and leaves it with a clerk at the office, request- 
 ing him to hand it to the physician and tell lijm 
 to come as soon as possible, thereby makes him- 
 self liable to pay the physician's bill for services 
 to Mrs. D — , in pursuance of such request. N. 
 Y. C. P., 1873, Bradley v. Dodge, 45 How. 57. 
 
 17. Although a person may not avail himself 
 of the benefit of services done for him, without 
 coming under an obligation to pay a reasonable 
 compensation therefor, he cannot be said to have 
 done so when the services were not for the ben- 
 efit of himself, or of any one for whom he was 
 bound to furnish them ; and his acquiescence in 
 the rendering of services or benefit to anotlier 
 not entitled to call upon liim therefor, is not 
 equivalent to an acknowledgment that they are 
 rendered at his request. Ct. App., 1873, Crane 
 V. Baudouine, 55 N. Y. (10 Sick.) 256; Bev'g S. 
 C, 65 Barb. 260. 
 
 18. The facts that a father was present when 
 a physician came to his house to attend upon his 
 daughter, who was of age and married ; that he 
 gave the pliysician a history of tlie case, and re- 
 ceived directions from liim as to treatment ; that 
 he told others of the physician's visit, and of 
 his opinion, without any disclaimer of liability, 
 or even that he assented to tlie calling in of a 
 
160 
 
 CONTRACT. 
 
 consulting physician ; or received a, bill charg- 
 ing him with the services ; or had previously 
 employed and paid other physicians, will not be 
 sufficient to raise an implied promise to pay for 
 the services. lb. 
 
 19. Even a special request by the father, that 
 a physician should attend such daughter, would 
 not raise such a promise. lb. 
 
 20. Services by member of family. 
 Where a party goes to live with another as a 
 member of his family, with an understanding 
 that she shall be brought up and educated as 
 such, she cannot recover wages for services ren- 
 dered while she was being so brought up and 
 educated, as upon an implied contract. Sup. Ct., 
 1871, Shirley v. Bennett, 6 Lans. 512. 
 
 21. Services by relatives. Where a siclt 
 man went to the house of his sister and asked 
 to be taken care of for a few days, and after- 
 ward died there, having, during his sickness, 
 spoken in the warmest terms of her care and 
 attention, and of his intention to pay her by will, 
 — Held, that a promise to pay her for her ser- 
 vices might be implied, and an express promise 
 need not be proved. Sup. Ct., 1874, Woodward 
 V. Bugsbee, 2 Hun, 128. 
 
 22. Where, upon the invitation of a wife, and 
 with the assent of her husband, her sister and 
 her children become members of his family, to 
 remain there until- she can do better, she per- 
 forming services in the household and receiving 
 board for herself and children, without any un- 
 derstanding or intimation that pecuniary com- 
 pensation is to be made by one to the other, the 
 law will not imply any promise by either to pay 
 the other. Sup. Ct, 1876, VanKuren v. Saxton, 
 3 Hun, 547. 
 
 23. Where a widowed mother lives with and 
 keeps house for her unmarried son, after he be- 
 comes of age, without any agreement that she 
 shall be paid for her services, the law will not 
 imply such an agreement. Sup. Ct., 1874, Cooper 
 V. Turner, 2 Hun, 515. 
 
 24. Contract to marry. In order to con- 
 stitute a contract to marry, no particular form 
 of words is necessary, but it is sufficient if the 
 acts and language are such as the parties under- 
 stood and intended as an engagement to marry. 
 Ct. App., 1878, Homan v. Earle, 58 N. T. (8 Sick.) 
 267; AfE'g 13 Abb. N. S. 402. 
 
 25. Consideration. To make forbearance a 
 valid consideration, there must be a binding 
 agreement to forbear, either for a definite time, 
 or for a reasonable time ; and, in the latter case, 
 the time agreed for must be alleged, in an action 
 thereon, so that the court may see it was for a 
 reasonable time. Sup. Ct., 1862, Perkins v. Prond, 
 62 Barb. 420. 
 
 26. An agreement to indemnify the sheriff 
 against loss by reason of his delaying the sale of 
 goods levied on by virtue of executions in his 
 hands, without any binding agreement on the 
 part of the sheriff to delay, is void for want of 
 consideration, although he did delay the sale 
 upon such promise. lb. 
 
 27. A sheriff is bound, without compensation, 
 to give every indulgence in relation to the sale 
 of property levied on, which is consistent with 
 obedience to his process ; but if he contracts for 
 a delay beyond what is consistent with his duty, 
 for compensation or indemnity, such contract is 
 illegal and void. lb. 
 
 28. An injury to the promisee is as valid a 
 consideration as a benefit to the promisor, and 
 expenses incurred on the strength of the promise 
 may be recovered. Ct. App., 1873, BoAin v. 
 Goldstein, 53 N. T. (8 Sick.) 634. 
 
 29. Mutual covenants. An agreement 
 made between the widow and heirs of a deceased 
 person, about two weeks after his death, and 
 indorsed upon a paper drawn in form of a will 
 but not signed by the deceased, nor witnessed 
 or published as his will, whereby they agree 
 and firmly bind themselves " to abide the pro- 
 visions of the within will made by the within 
 
 'named A R, — deceased, and — now and forever 
 consent to the conditions of the within will 
 made or written by our father, deceased," held 
 to be without consideration, and therefore void. 
 Sup. Ct., 1871, Elderkin v. Rowell, 42 How. 330. 
 
 30. Promise. Where the second indorser of 
 a promissory note agreed orally with the first 
 indorser that if the latter would pay the note at 
 maturity he would deliver him goods to that 
 amount, — Held, that the assumption by the 
 first indorser of a different relation and a more 
 onerous duty, was a good consideration for the 
 promise, and it was valid, and not within the 
 statute of frauds. Ct. App., 1874, Sanders v. 
 Gillespie, 59 N. T. (14 Sick.) 250; Affi'g S. C, 
 64 Barb. 628. 
 
 81. An agreement by the drawer of a bill of 
 exchange, on return of the same, protested for . 
 non-acceptance, that if sent back it shall be ac- 
 cepted as of the date of original presentation 
 and be paid at maturity, and the giving of his 
 check as security for the performance of such 
 agreement, constitute a valid consideration for 
 a waiver by the payee of damages on protest. 
 Ct. App., 1874, Pesant v. Pickersgill, 56 N. T. 
 (11 Sick.) 650. 
 
 32. An agreement by one party to unite with 
 another in a joint proceeding against a third in 
 a matter in which both are interested, and to 
 contribute to the expenses thereof, is a good 
 consideration for a promise by the other to share 
 the proceeds, even though by mutual consent 
 a settlement is afterward substituted for the 
 suit. Ct. App., 1874, Bridenstoot v. Michaels, 56 
 N. Y. (11 Sick.) 607. 
 
 33. A promise made upon the conditional 
 performance of certain specified acts, without 
 any mutual promise of performance or otheir 
 valid consideration, becomes valid and binding 
 after performance by the promisee, and the 
 latter may then maintain an action thereon. 
 Ct. App., 1871, Willetts v. Sun Mutual Ins. Co., 
 45 N. Y. (6 Hand,) 45. 
 
 84. Where a policy of insurance upon the life 
 of the assured, in terms payable to another, is 
 held by the latter for the benefit of the former, 
 or whomsoever he may designate, the insured 
 has power to revoke, pro tanto, the authority 
 given by him to the holder, to change the condi- 
 tions of his holding and to annex new condi- 
 tions ; and if such holder is permitted to retain 
 it upon his promise to pay a debt of the insured 
 from the proceeds, or after a request or direction 
 from the latter to pay such debt, that will con- 
 stitute an agreement upon a valid consideration, 
 which may be enforced by the creditor, though 
 made without his knowledge. Ct. App., 1871, 
 Hutchings v. Miner, 46 N. Y. (1 Sick.) 456. 
 
 35. If, after a contractor for the repair of a 
 leased building has rescinded his contract with 
 the sublessee, for the failure of the latter to pay 
 as agreed, the landlord induces .him to go on 
 and complete the repairs, by promising to pay 
 a sum which he had agreed to pay the sublessee 
 therefor, such promise is an original one and 
 founded on a good consideration, and the land- 
 lord is liable thereon. Sup. Ct., 1873, Tallman 
 V. Bresler, 65 Barb. 369. 
 
 36. Residence, change of. A parol agree- 
 
CONTRACT. 
 
 161 
 
 ment between a married woman residing in New 
 Jersey and her brotlier-in-law living in this State, 
 that slie shall give up her residenee in New Jer- 
 sey, and remove with her husband to tliis State, 
 and reside near her brother-in-law so long as he 
 lives, and in consideration thereof shall receive 
 $2,000, upon his death, is valid and binding upon 
 the estate of the latter after full performance 
 by the former party. Sup. Ct., 1872, Adams v. 
 Honness, 62 Barb. 326. 
 
 37. The intestate might have rescinded such 
 contract before performance by theotherparty, 
 but his personal representatives cannot do so 
 after performance, by her. lb. 
 
 38. The consideration of the promise is suffi- 
 cient to support it ; especially after performance 
 bv her. lb. 
 
 39. The contract being for the personal bene- 
 fit of the married woman, she was competent to 
 make it, and the fact that she was then a resi- 
 dent of New Jersey, did not affect that right, 
 where the contract was made in tliis State. lb. 
 
 40. Settlement. An agreement made after 
 the conclusion of a settlement, though at the same 
 interview, tliat if there should prove to be any de- 
 ficiency in the quantity of lumber for which one 
 of the parties was allowed in such settlement, 
 he would make it good, is founded on a good con- 
 sideration, and is not merged in the settlement. 
 Sup. Ct., 1872, Smith v. Holland, 61 Barb. 333. 
 
 41. A master who, after hearing a full state- 
 ment of the facts relating to a claim for injuries 
 caused by the negligence of his apprentice while 
 using his horse and wagon for a ride with his 
 assent, enters into a written agreement to pay a 
 certain sum in satisfaction of such injuries, is 
 liable on such agreement. Sup. Ct., 1875, <SAer- 
 wood V. Fischer, 3 Hun, 606. 
 
 42. A subscription for the purpose of 
 repairing a church, as follows ; " We, the under- 
 signed do hereby, for value received, promise to 
 pay to the consistory of the R. P. D. Church, of 
 the town of E, the several sums set opposite our 
 respective names, for the purpose of paying off 
 the indebtedness of said church, on condition 
 that the sum of $5,000, be subscribed therefor," 
 expresses a sufficient and valid consideration ; 
 and tlie condition being complied with by ob- 
 taining subscriptions to that amount, it becomes 
 a contract binding at law upon each subscriber. 
 Sup. Ct., 1874, Trustees of R. P. D. Churih of 
 Rochester v. Hardenherg, 48 How. 414. 
 
 43. The undertaking of a new business, 
 with its attendant risks, is a valid consideration 
 for a promise, made by another, to indemnify 
 tlie one so entering into it against all loss 
 therein. Ct. App., 1871, Sands v. Crooke, 46 
 N. Y. (1 Sick.) 564. 
 
 44. Concurrence. A written instrument 
 stating the terms on which parties propose to 
 contract, if^orally assented to by tliem will con- 
 stitute tlieir contract, altliough not signed by 
 them. N. Y. Supr. Ct., 1873, Dyich v. Mead, 
 36 N. Y. Supr. (4 J. & Sp.) 427. 
 
 45. An offer, before it can become a binding 
 contract, must be accepted, and the acceptance 
 indicated by some appropriate act, which would, 
 in a reasonable time, bring it to the knowledge 
 of the one offering. Ct. App., 1871, White v. 
 Carlies, 46 N. Y. (1 Sick.) 462. 
 
 46. The purchase of timber by a carpenter to 
 whom was offered a contract for fitting up cer- 
 tain offices, without other manifestation of his 
 acceptance, being an act referable to any other 
 like contract as well as the one offered, — Held, 
 not to be a sufficient indication of acceptance to 
 bind the other party. lb. 
 
 11 
 
 47. An offer of an agreement must be accepted 
 within a reasonable time after it is made, or it 
 will not be binding upon the party making it. 
 Four months held an unreasonable time. Ct. 
 App., 1870, Chicafio Sf G. E. R. R. Co. v. Dime, 
 43N. Y. (4Hand;) 240. 
 
 48. Where, on receipt of a letter stating the 
 terms and conditions of sale, the vendee takes 
 possession of the property without any dissent 
 from those terms, that will constitute an accept- 
 ance of and acquiescence in the terms expressed 
 in the letter. Ct. App., 1872, Dent v. North 
 American Steamship Co., 49 N. Y. (4 Sick'.) 390. 
 
 49. Where D being about to put in a bid for 
 erecting a school-house, H inquired of him as to 
 his estimate for the roofing work, and made a 
 lower estimate at which he offered to do that 
 work, whereupon D accepted the proposal, and 
 reduced his bid to correspond with such esti- 
 mate, and it having been accepted, informed H 
 that he had depended on his estimate and should 
 expect H to do the work, and H said he would 
 do it, — Held, tliat this constituted a good and 
 valid contract by H to do the roofing work at 
 his estimate in case D's bid was accepted, and 
 that such contract was both mutual and founded 
 upon a good consideration. N. Y. Supr. Ct., 
 1874, Dutch V. Harris'on, 37 N. Y. Supr. (5 J. & 
 Sp.) 306. 
 
 50. A signature to an incomplete paper, want- 
 ing in any substantial particular, when no dele- 
 gation of authority is conferred to supply the 
 defect, does not. bind the signer without further 
 assent on his part to the completion of the paper. 
 So held, where a party signed articles of associa- 
 tion in which the names of the directors were 
 left blank. Ct. App., 1874, Dutchess and Colum- 
 bia Co. R. R. Co. Y. Mabbett, 58 N. Y. (13 Sick.) 
 397. 
 
 51. Where essential elements affecting the 
 rights of contracting parties, which are not im- 
 plied by, or inferred from, what the parties have 
 already agreed upon, are left open for future 
 consideration and adjustment, the contract as a 
 whole lacks completeness, and no action will lie 
 upon it. Com. App., 1870, Brown v. iVisw York 
 Central R. R. Co., 44 N. Y. (5 Hand,) 79. 
 
 52. Accordingly, where plaintiff's agent had 
 made a proposal, by letter, to lease defendants 
 tlieir road at a specified rent per year, with the 
 right to extinguisli the rental at a time to be 
 agreed upon by the payment of one million dol- 
 lars ; rent to commence April 1st if the plaintiffs 
 were then ready to deUver possession ; adding, 
 " the form and covenants of the lease, and the 
 rental certificates and other details will require 
 consideration and can be hereafter arranged ; " 
 and in reply to the def endan t's letter accepting the 
 proposal " on the terms suggested," wrote under 
 date of April 1st, stating that rent began that 
 day and he was ready to give possession, but no 
 lease was made until July, when one was drawn 
 fixing the time for defendant to purchase, and ar- 
 ranging other important details, and specifying 
 that rent should commence May 1st, without 
 prejudice to either party as regards rent prior to 
 that time, — Held, that the contract was not 
 complete until July, and defendants not having 
 had possession in April, were not liable for rent 
 of that month. lb. 
 
 53. A laborer employed by a contractor to do 
 certain work upon a raflroad track, is not bound 
 by the provisions of the contract between liis 
 employer and the railroad company, relieving 
 the latter irom liability for injury to tlie con- 
 tractor, his laborers, etc., by reason of the negli- 
 gence of its agents or servants in operating the 
 
162 
 
 CONTRACT. 
 
 road, if not a party thereto nor shown to liave 
 had knowledge thereof. Sup. Ct., 1876, Ominger 
 V. N. Y. Cent. Sf Hud. Riv. R. R. Co., 4 Hun, 159. 
 
 54. Mutuality. An agreement contained in 
 articles of copartnership, that the firm shall em- 
 ploy a third person in their business for a cer- 
 tain term, which agreement does not name sucli 
 third person as a party and is not executed by 
 liim, is void as to him, for want of mutuality, 
 and cannot be enforced against the firm. N. Y. 
 C. P., 1871, Briggs t. Smith, i Daly, 110. 
 
 55. An offer by letter, agreeing to transport 
 railroad iron, not exceeding a specified quan- 
 tity, at prices specified, accepted in tliese terms, 
 "I assent to your agreement and will be bound 
 by its terms," does not bind the one so accepting 
 to furnish any iron for transportation, and is 
 therefore binding as a contract upon neither 
 party. Ct. App., 1870, Chicago ^ G. E. R. R. 
 Co. V. Dane, 43 N. Y. (4 Hand,) 240. 
 
 56. An offer by letter, extending to a vendee 
 of goods the privilege of taking an additional 
 quantity upon the terms of the original contract, 
 taken in connection with an answer, as follows, 
 viz., "You may enter my order for tlie accept- 
 ance of your offer (till October 1st, time given 
 to conclude on), for the 10,000 bbis, cement, to 
 commence from date of first lot," etc., — Held, 
 to constitute a valid and binding contract, and 
 not to be optional merely with the vendee. Ct. 
 App., 1870, O'Neil v. James, 43 N. Y. {4 Hand,) 
 84. 
 
 57. Where, by a writing signed by a number 
 of persons, a portion of them " agree " to pay 
 tlie expense of certain improvements when com- 
 pleted by the others and proper title made to 
 tlie proportional share of each in the lands, the 
 word agree is to be deemed the language of both 
 parties, and the latter will be as much bound to 
 mnke the improvements and to convey as the 
 former t:) pay for the same. Com. App., 1871, 
 Baldwin v. Humphrey, 44 N. Y. (5 Hand,) 609. 
 
 58. A promise to indemnify one against all 
 loss in case he will engage in a specified busi- 
 ness, though creating no obligation at the time 
 on the part of the promisor, because of want of 
 mutuality, will become valid and binding when 
 accepted and fully performed by the other party. 
 Ct. App., 1871, Sands v. Crooke, 46 N. Y. (1 
 Sick.) 564. 
 
 59. An agreement by vendors of goods that if 
 a proposed purchaser will buy from them such 
 goods as lie shall from time to time need, they 
 will sell to him at as low prices as they sell 
 the same class of goods to other dealers, does 
 not of itself create any valid contract between 
 the parties ; but if the purchaser subsequently 
 acts tliereon by making purchases at prices fixed 
 by price lists furnished by the vendors and rep- 
 resented by them to be in accordance with the 
 contract, it becomes as to such transactions a 
 valid contract, for a breach of which the ven- 
 dors are liable. Ct. App., 1874, Holtz v. Schmidt, 
 69 N. Y. (14 Sick.) 253. 
 
 IL Law of Place. 
 
 60. 'Where made. The nature, validity, 
 obligation and legal effect of a contract are de- 
 termined by the law of the place where made, 
 unless it appears to have been made with 
 reference to the laws or" usages of some other 
 State or government, as where it is to be per- 
 formed in some other place, in which ease the 
 law of the place of performance governs. Ct. 
 App., 1871, Dyke v. Erie Ry. Co., and Floyd v. 
 Same, 45 N. Y. (6 Hand,) 118. 
 
 61. An action by a passenger for an injury 
 received in his passage on a railroad car, through 
 the negligence of the persons in charge of tlie 
 train, is founded upon his contract or passage 
 ticket ; and when he purchases a ticket here for 
 passage between two places In this State, and is 
 injured upon a portion of the road situated in 
 another State, the amount of damages to which 
 he is entitled is not affected by a law of such 
 other State limiting the damages for such in- 
 j uries. lb. 
 
 62. Where a policy of life insurance, issued 
 by a corporation of this State to a married wo- 
 man, was assigned by her as security for a debt 
 of her husband, the assignment being executed 
 here and sent by mail to the creditor in Mary- 
 land as directed by him ; — Heli^, that the ques- 
 tion of the validity of such assignment was to 
 be determined by the laws of this State. Ct. 
 App., 1876, Barry v. Equitable Life Assurance So. 
 59 N. Y. (14 Sick.) 587 ; Aff'g S. C, 14 Abb. N 
 S. 385, n. 
 
 63. Made by married -woman. A contract 
 for the performance of personal services, made 
 by a married woman in this State, and to be 
 performed here, is valid, notwithstanding she is 
 at the time a resident of New Jersey. It is of 
 no consequence, in such a case, what the laws 
 of New Jersey are on the subject of her compe- 
 tency to contract. Sup. Ct., 1872, Adams v. 
 Honness, 62 Barb. 326. 
 
 64. Where payable. A letter, relied upon 
 as an acceptance of a draft, must be interpreted 
 by the law of the place where the draft was 
 payable. N. Y. Supr. Ct., 1870, Harrison v. 
 Smith, 2 Sweeny, 669. 
 
 in. CONSTRtJCTION. 
 
 u. In general. 
 
 65. As to parties. A written contract 
 which, in its caption, named one of the parties 
 " Charles W. Weeks," but in the body of it re- 
 ferred to him as " the said Charles Weeks," and 
 which was subscribed by him " C. W. Weeks " ; 
 there being nothing in the body of it, or in the 
 signatures, to indicate that it was the contract 
 of a partnership or that any one else was inter- 
 ested with him, and no proof that the other 
 party knew that " C. W. Weeks " was a mem- 
 ber of a firm doing business under his name ; — 
 Held, to be the contract of the individual and 
 not of the firm. Sup. Ct., 1871, Marvin v. 
 Buchanan, 62 Barb. 468. 
 
 66. By trustees. Although a contract made 
 by persons, who describe themselves therein as 
 trustees of a certain cheese manufacturing com- 
 pany, and agree with another party for manu- 
 facturing cheese at the factory of such company, 
 upon certain terms and conditions, is signed by 
 them individually, yet, if it appears that they 
 are such trustees, and authorized to make the 
 contract, and that they made it in behalf of the 
 company and not of themselves, it is the con- 
 tract of the company, and the trustees are not 
 personally liable thereon. Sup. Ct., 1874, Bel- 
 linger V. Bentley, 1 Hun, 562. 
 
 67. Contemporaneous -writings. Contem- 
 poraneous writings between the same parties 
 upon the same subject-matter, may be read and 
 construed together 'as one contract. Ct. App.. 
 1872, Rogers v. Smith, 47 N. Y. (2 Sick.) 324. 
 
 68. Where the maker of a promissory note for 
 the sum of $1,000, at the time of its delivery, 
 executed another writing, reciting that the payee 
 had made to him an advance of $2,000 to enable 
 
CONTRACT. 
 
 163 
 
 him to pay his share of the stock in a firm of 
 whicli he was a member, that, as security there- 
 for, lie had assigned to such payee a bill of sale 
 made to him by his partner, to become absolute 
 in sixth months on non-payment, and that such 
 payee was to receive his share of the profits of 
 the business until the $2,000 was paid, and after 
 that, one-half of the proceeds to which he should 
 become entitled ; and further, that the promis- 
 sory note mentioned was given to secure the 
 payee against one-half the loss which the capital 
 so advanced might sustain by the hazards of 
 such business ; — Held, in an action on the note, 
 that the plaintiff could recover only one-half of 
 the actual loss sustained by the maker on his 
 said capital and not the face of the note. lb. 
 
 69. Duplicate writings. Where two instru- 
 ments are executed at the same time ahd are 
 intended to be duplicates, each of the other, one 
 cannot, in case of a material variance between 
 the terms of the two, be regarded as more 
 expressive of the intention of the parties, or 
 more needing reformation to declare that inten- 
 tion, than the otlier; but both are to be con- 
 strued together in determining the meaning of 
 the parties. Com. App., 1872, Morss v. Salis- 
 bury, 48 N. Y. (3 Sick.) 636. 
 
 70. One duplicate purported to convey all the 
 " land and timber" except the hard wood on a 
 100-acre tract of land described ; the other, with 
 the same exception, conveyed all the " bark and 
 timber" on the same tract. The terms of pay- 
 ment were regulated by the quantity of bark 
 taken off tlie premises, and the grantee was to 
 have immediate possession of the land for the 
 purposes of peeling the bark and taking the 
 same and the timber sold off from the premises, 
 and was given such time as he might choose in 
 which to do it, but no provision was made for 
 removing the hard wood. Held, that the title to 
 the land was not divested, but the possession 
 under the contract was limited to the single 
 purpose of securing the bark and timber sold, 
 lb. 
 
 71. Construction by parties. Parties to a 
 contract may by their acts and words put a con- 
 struction upon it by which they will be bound. 
 N. Y. Sunr. Ct., 1874, Stakes v. Eecknagel, 38 
 N. Y. Supr. (6 J. & Sp.) 368. 
 
 72. Thus, the parties to a contract which is 
 entire, as one for the sale of 2,000 bales of jute 
 out of tlie cargoes of two vessels named, will be 
 made divisible bj' tlie acts of the parties, in 
 delivering and receiving the whole quantity out 
 of the cargo of one of those vessels. lb. 
 
 73. Where parties, without any fraud, con- 
 cealment, mistake or ignorance of facts, put a 
 construction upon their own contract, tliey are 
 bound thereby, unless they review it and come 
 to a different conclusion, and in that case they 
 are bound bv such new conclusion. 'N. Y. Supr. 
 Ct, 1874, Reading v. Gray, 37 N. Y. Supr. (5 J. 
 & Sp.) 79. 
 
 74. In construing a contract to convey land at 
 a future day, free of all " incumbrances /lom the 
 date of this contract," the word from may be 
 read as at, where it was evidently the intention 
 of the parties that the vendee should take sub- 
 ject to any incumbrances accruing subsequent 
 to the date of the contract. lb. 
 
 75. Facts of public notoriety relating to 
 the subject of a contract, must be presumed to 
 have been known to the parties at the time of 
 making it, and the language used must be con- 
 strued with reference to them. Ct. App., 1873, 
 Woodruff V. Woodruff, 52 N. Y. (7 Sick.) 53. 
 
 76. Where the holder of a. bond and mort- 
 
 gage executed prior to the passage of the legal 
 tender act, for the purpose of avoiding litiga- 
 tion, agreed with the obligor to receive legal 
 tenders in payment, but that if it should at any 
 time thereafter " be determined and adjudged 
 by the Supreme Court of the United States and 
 become the law of the land, to the effect or 
 involving the consequence " that the payment 
 so made was not a good and sufficient one, then 
 that gold coin should be paid on the return of 
 the greenbacks. In an action then pending in 
 the Supreme Court, it was, after two arguments 
 and upon a hearing by a full court, decided that 
 the legal tender act was unconstitutional. After 
 suit brought for the recovery of the gold coin, 
 this decision was overruled by the same 
 court in another case. Held, that the parties 
 must be presumed to have known of the pen- 
 dency of the first case and to have contracted 
 with reference to it, and that their rights and 
 liabilities were fixed by the decision therein, 
 lb. 
 
 77. Entire. Plaintiff having a certain amount 
 of capital to his credit in defendants' business, 
 agreed with them for a business connection for 
 thre§ years, he to sliare in the profits and losses 
 at a certain rate per cent., and to draw a certain 
 sum per annum for personal expenses ; and the 
 capital to his credit and the surplus of profits 
 was to remain in the business on interest during 
 the pendency of the agreement. The business of 
 the first year resulted in a loss ; that of the 
 second, in a profit, but less than the loss of the 
 previous year. The tliird year there was a large 
 net profit ; — Held, that the contract was entire 
 and plaintiff's compensation, to be determined 
 by the result of the business at its termination : 
 that he was not chargeable with interest on the 
 loss of the first year, nor on the sum drawn out 
 by him pursuant to the agreement, nor could the 
 amount originally standing to his credit be re- 
 duced in consequence of the loss ; and that he 
 was entitled to interest on such balance of credit, 
 but not on the profits of the second year. Com. 
 App., 1873, Osbrey v. Reimer, 51 N. Y. (6 Sick.) 
 630. Modifying S. C, 49 Barb. 265. 
 
 78. Severable. Contracts for the sale and 
 delivery of a specified number of tons of coal at 
 a fixed price are severable, and capable of part 
 performance, and upon delivery and acceptance 
 of a part the seller can recover the price. N. Y. 
 Supr. Ct., 1873, Talmaye v. White, 35 N. Y. 
 Supr. (3 J. & Sp.) 218. 
 
 79. Liquidated damages or penalty. A 
 provision in a contract to furnish a biographical 
 sketch for publication, within a time fixed, 
 whereby the party so contracting agreed to pay 
 $165 for every day's delay beyond that time ; — 
 Held, to be intended simply as a penalty, and 
 not as liquidated damages, and for a breach 
 thereof the other party could recover only his 
 actual loss. N. Y. C. P. Sp. T., 1872, Greer v. 
 Tweed, 13 Abb. N. S., 427. 
 
 80. A provision in a building contract, that any 
 neglect on the part of the contractor to comply 
 with the conditions of the contract, and finish 
 the work at the times fixed, therefor, shall be 
 sufficient cause for the employer to claim dam- 
 ages at the rate of $10 for each and every 
 day's detention so caused, the amount to be 
 retained out of the moneys to grow due on the 
 contract ■,—Held, to be a covenant for liquidated 
 damages. N. Y. C. P., 1873, O'Donnell v. Rosen 
 berq, 14 Abb. N. S. 59 ; S. C, 4 Daly, 555. 
 
 81. Where a contract provides that for a 
 failure of either party to perform he shall forfeit 
 a specified sum, the use of the word "forfeit 
 
164 
 
 CONTRACT. 
 
 is not conclusire upon the question whether that 
 sum is to be deemed a penalty or liquidated 
 damages, but that it is to be determined by the 
 intent of the parties, as evinced by the contract 
 and the surrounding circumstances. Ct. App., 
 1876, Noyes v. Philips, 60 N. Y. (16 Sick.) 408. 
 
 82. Mode of payment. There being two 
 standards of Talue recognized by law, the one 
 gold, the other paper, a contract for the payment 
 of money and a reference therein to the cost of 
 an article, will, in the absence of explanation or 
 attending circumstances excluding that construc- 
 tion, be deemed to refer to the ordinary currency 
 in which business is transacted. Ct. App., 1873, 
 Fabbri v. Kalbfleisch, 62 N. Y. (7 Sick.) 28 ; Aff'g 
 S. C, 2 Sweeny, 252. 
 
 83. An agreement to pay the entire costs and 
 charges of goods imported, and a commission of 
 two and a half per cent., on such entire cost, to 
 the importer, — Held, a contract to pay the cur- 
 rency value, at the time of payment, of the gold 
 used in making purchases and for duties, and a 
 commission in currency upon the amount of costs 
 and charges thus ascertained. lb. 
 
 84. Time of delivery. If a contract for the 
 sale and delivery of goods specifies no timie for 
 the delivery, the law will presume that the 
 parties intended and agreed that they should be 
 delivered within a reasonable time. N. Y. Supr. 
 Ct., 1873, White v. Talmage, 35 N. Y. Supr. (3 J. 
 & Sp.) 223. 
 
 85. Time of payment. If no time of pay- 
 ment is mentioned in a contract for the sale and 
 delivery of goods, it would be due on delivery of 
 the property sold under it, and, unless the deliv- 
 ery of the whole is a condition precedent to 
 payment, it would be due as fast as they are 
 delivered. N. Y. Supr. Ct., 1873, Talmage v. 
 White, 35 N. Y. Supr. (3 J. & Sp.) 218. 
 
 86. Time for performance. Where work is 
 contracted to be done on an engine, at day wages, 
 fifty per cent, to be paid monthly on rendition of 
 bills, and the balance on completion of the job, 
 and the engine is destroyed by fire, after the 
 contractor has stopped work on it because of the 
 owner's failure to pay as agreed, the fire being 
 accidental and in no way connected with or pro- 
 duced by such breach of contract, tlie fifty per 
 cent, to be paid on completion of the work never 
 becomes due. Sup. Ct., 1874, Tyng v. Field, 3 
 Hun, 75. 
 
 b. Particular contracts. 
 
 87. To arbitrate. Where a contract contem- 
 plating a course of dealings for a term of years, 
 provided that either party might, at the end of 
 the year, give notice of reclamation to be made 
 for payments during the year, and if not ac- 
 quiesced in that the party seeking reclamation 
 might " thereupon " appoint an arbitrator, — 
 Seld, that this did not require the appointment 
 of arbitrators immediately after each annual 
 reclamation, but the time was left to be fixed by 
 the parties; and arbitrators having been ap- 
 pointed after more than one notice of reclama- 
 tion was given the-y were not limited to the last, 
 but were authorized to hear and determine all 
 preceding their appointment. Ct. App., 1874, 
 Morris Run Coal Co. V. Salt Company of Onon- 
 daga, 68 N. Y. (13 Sick.) 667. 
 
 88. Authority to furnish goods. An au- 
 thority given by railroad contractors to a store 
 keeper to furnish " provisions and tools " to a 
 certain sub-contractor on their account, they 
 agreeing to pay therefor on the orders or certifi- 
 cates of the sub-contractor, should receive a 
 
 liberal construction in view of the business of 
 the latter and the purposes for which the articles 
 were required. Sup. Ct., 1871, Gilbert v. Sage, 5 
 Lans. 287 ; AfFd, S. C, 57 N. Y. (12 Sick.) 639. 
 
 89. Building contract. Where a building 
 contract provides for the last payment to be 
 made on production of a certificate of the archi- 
 tects that the work is completed, such certificate 
 is conclusive upon the parties of the right of the 
 contractor to such payment, unless obtained by 
 fraud or mistake. Com. App., 1870, Wyckoff v. 
 Meyers, 44 N. Y. (5 Hand,) 143. 
 
 90. A contract for alterations and repairs to a 
 building was by its terms to be performed in a 
 certain manner, particularly specified, " subject 
 to the acceptance or rejection of E W, archi- 
 tect," and payment was to be made only when 
 the work was completely done and accepted ; — 
 Held, that the provision for acceptance was only 
 an additional safeguard against defects not dis- 
 cernible by an unskilled person, and the architect 
 could not, by accepting a different class of work 
 from that contracted for, or inferior materials, 
 bind the owner of the building to pay for them. 
 Ct. App., 1872, Glacius v. Black, 60 N. Y. (5 
 Sick.) 145. 
 
 91. Under a provision in a building contract, 
 that a certificate of the performance of the work 
 must be obtained from certain architects, before 
 payment can be required, the architect's approval 
 or non-approval must be based upon the require- 
 ments and specifications of the contract, and a 
 mere wilful refusal on their part to certify their 
 approval, not based upon and supported by any 
 real substantial failure of the contractors to fulfil 
 their duties under the contract, pointed out and 
 protested against by them, will not prevent a 
 recovery for the work done under the contract. 
 N. Y. Supr. Ct., 1871, Doyle v. Halpin, 33 N. Y. 
 Sup. (1 J. & Sp.) 352. 
 
 92. Where such contract provides that the 
 work shall be done by a day specified, or the 
 contractors shall forfeit a certain sum per day 
 for the time the building shall remain incomplete 
 after that time, if the employer afterward re- 
 quires a change of or addition to the work de- 
 scribed in the contract, requiring more time for 
 the performance of the work, and the contractors 
 go on with and finish the work after the time 
 specified, with the consent of the employer, that 
 operates as a waiver of perfomance at the time, 
 and the employer cannot claim damages for the 
 delay. lb. 
 
 93. Where, upon the refusal of the owner to 
 pay certain instalments on a building contract as 
 they became due, the contractors abandoned the 
 work, but subsequently agreed, in consideration 
 of a mortgage for the original contract price, 
 executed by said owner, to complete the build- 
 ing, as contracted, provided the title to the 
 mortgaged premises should on examination 
 prove satisfactory, such mortgage otherwise to 
 be held as security for the work already done ; 
 and the building, when nearly completed, was 
 blown down and destroyed, whereupon such 
 contractors declined to erect a new one. — Held, 
 that they did not, by the new contract, reinstate 
 tlie original one, nor resume its performance 
 and risks ; that there was no express or implied 
 surrender of the absolute right acquired by the 
 owner's default, and that they were entitled to 
 hold the bond and mortgage as security for 
 the work done under the original contract. Ct. 
 App., 1872, Killip V. Metzen, 60 N. Y. (5 Sick.) 
 658. ' 
 
 94. Where, by a contract for the erection of 
 a building upon the ruins of an old one, the con- 
 
CONTRACT. 
 
 165 
 
 tractor agreed to furnish all materials, but was 
 permitted to use sucli of the old materials as 
 were good and proper, — Hdd, that the owner 
 was not bound to put such old materials in 
 proper condition for use, as by cleaning brick, 
 and could not be charged with the expense 
 thereof as for extra work. N. Y. C. P., 1871, 
 Shute v. Hamilton, 3 Daly, 462. 
 
 95. An agreement in such contract to repair 
 and patch after other mechanics, does not in- 
 clude repairing caused by extra work. lb. 
 
 96. Where a building- contract provides that, 
 " should the owner at any time request any al- 
 terations, deyiationa, additions or omissions 
 from the said contract, he shall be at liberty to 
 do so, and the same shall in no way affect or 
 make void the contract, but will be added to, or 
 deducted from, the amount of the contract by a 
 fair and reasonable valuation," work done upon 
 and materials furnished for the building con- 
 tracted for must be deemed done under the 
 contract, although not specified therein, and 
 cannot be recovered for as extra work. N. Y. 
 Supr. Ct., 1871, Alger v. Vanderpoel, 34 N. Y. 
 Supr. (2 J. & Sp.) 161. 
 
 97. A written agreement which recited that 
 the contracting parties were, respectively, own- 
 ers of lots on the northerly and southerly sides 
 of Twenty-second street, between Fourth 
 avenue and Broadway, and contained certain 
 stipulations as to buildings on " the lots fronting 
 said street," — Held, to show plainly the intent 
 of the parties to include in such stipulations all 
 their property on Twenty-second street, between 
 Broadway and Fourth avenue, and a map shown 
 to have been before the parties at the time . the 
 agreement was executed, on which certain por- 
 tions were laid down as fronting on Broadway 
 could not control such intention. Sup. Ct., 1878, 
 Clai-k V. N. Y. Life Ins. ^ Trust Co., 7 Lans. 
 322. 
 
 98. For commissions. Under an agree- 
 ment by a merchant to pay a salesman ten per 
 cent, on all sales made to customers that he so- 
 licited, or that might be made through his in- 
 fluence, the commission should be confined, in 
 respect to previous customers of the employer, 
 to the particular transaction influenced or ef- 
 fected by the salesman, unless the customer 
 had for so long a time ceased to deal with the 
 employer, that it would be a fair inference that 
 he had discontinued his patronage ; while, if 
 the customer was made such through the solic- 
 itation or influence of the salesman, the com- 
 missions would be payable on all sales to him so 
 long as the agreement continued. Sup. Ct., 1875, 
 Ri/er V. Wiberley, 4 Hun, 632. 
 
 99. A contract to pay an agent a specified 
 commission if he obtains a loan " on terms suit- 
 able to me,"' does not necessarily imply that the 
 terms shall be approved after the contract for 
 the loan is made, but if the party promising 
 stated beTorehand that certain terms, if pro- 
 cured, would be suitable to him, that is evi- 
 dence that those terms are suitable. N. Y. Supr. 
 Ct., 1871, Tochman v. Brown, 83 N. Y. Supr. (1 
 J. & Sp.) 409. 
 
 100. Compensation for services. An 
 agreement hy a Arm to employ one in its busi- 
 ness and to pay him, as ciimpensation for his 
 services, a sum which should be " equal to one- 
 half of the net profits of said business after de- 
 ducting every expense and loss connected there- 
 with, as follows : the sum of $8,000 yearly and 
 every year during the continuance of said agree- 
 ment, in weekly- instalments at the rate of 
 $3,000 per annum', and only at that rate for a 
 
 shorter period than a year, and to pay any bal- 
 ance of said salary beyond said sum of $3,000 
 per year, if realized, at the end and only at the 
 end of each year; and if not then realized, 
 whenever thereafter the same shall have been 
 realized ; " — Held, an agreement to pay $3,000 
 per annum in any event, and a larger sum in 
 case the net profits should exceed $6,000. N. Y. 
 
 C. P., 1872, Coughtry v. Levine, 4 Daly, 335. 
 
 101. Under a contract whereby an attorney, 
 for his services in conducting a suit, was to re- 
 ceive ten per cent, and his expenses, upon all 
 moneys collected or received, — Held, that he 
 was entitled to his percentage upon the amount 
 of a bond received by hira on a settlement of 
 the suit, executed by his client and another as 
 executrix, etc., of her deceased husband's es- 
 tate, and which was a valid charge against such 
 estate. Also held that such attorney was bound 
 to account for the amount of an attorney's fee 
 secured by him upon such settlement. Ct. App., 
 1873, Disharough v. Herdman, 52 N. Y. (7 Sick.) 
 660, 
 
 102. Where the collector of customs refused 
 to enter goods except upon payment of exces- 
 sive duties, but it appeared that the final deter- 
 mination of the amount to be paid was by cus- 
 tom ascertained from a computation after ap- 
 praisal and examination of the goods ; — Held, 
 that such refusal was not such an exaction of 
 excessive duties as would entitle an attorney to 
 compensation, under a contract for obtaining a re- 
 fund of duties exacted, in case there was a de- 
 duction in the final computation from the 
 amount so fixed by the collector, although the 
 deduction might have been induced by his ef- 
 forts on appeals for other parties. Ct. App., 
 1872, Culver v. Western Union Telegraph Co., 50 
 N. Y. (5 Sick.) 691. 
 
 103. Consideration. Where P, on the 19th 
 of September, executed his promissory note to 
 
 D, payable tjf o years after date, and on the fol- 
 lowing 15th of November executed another 
 agreement, whereby " in consideration of a o er- 
 tain sum of money, together with all claims and 
 demands that the said D holds against me bear- 
 ing date Nov. 15th," he covenanted to support 
 D during his natural life ; — Held, that such 
 agreement included, as part of its consideration, 
 such note, although dated previous to Nov. 15th, 
 both the note and the agreement being presump- 
 tive evidence of an accounting between the par- 
 ties at the times when they were respectively 
 executed, bringing all D's demands against P 
 down to those dates. Sup. Ct., 1871, Dutcher v. 
 Porter, 63 Barb. 15. 
 
 104. Delivery of currency. A contract to 
 deliver $10,000 of current funds of the United 
 States at fifteen cents on tlie dollar, in ten 
 months after date, must be construed as calling 
 for the delivery of the sum named in legal ten- 
 der notes, the price being payable in gold coin. 
 Ct. App., 1873, Cooke v. Davis, 58 N. Y. (8 Sick.) 
 818. 
 
 105. Delivery of logs. Where A contracted 
 to deliver at a place named, as soon as the 
 water would admit of floating them, a certain 
 number of logs lying at different points speci- 
 fied on a certain river, to be paid for after the 
 accounts of measurement were handed in, at a 
 certain rate per thousand feet, and the logs 
 were measured and paid for as agreed, after 
 which, but before delivery, a quantity were lost 
 by a freshet without A's fault or negligence ; — 
 Held, that whether or not the contract was to 
 be construed as one of sale, and tlie property as 
 passing at tlie time of payment, there remained 
 
166 
 
 CONTRACT. 
 
 an absolute and unqualified obligation to deliv- 
 er, and A was liable in damages for the portion 
 not delivered. Eetnolds, C., dissents. Com. 
 App., 1873, Bigler y. Hall, 64 N. Y. (9 Sick.) 
 167. 
 
 106. Debts, payment of. In construing an 
 agreement between partners on dissolution, 
 wliereby A sells out to B, — and B " assumes to 
 collect all debts due the firm and therewith pay 
 all the debts of said firm, and to pay the bal- 
 ance to A," the fact that at the time of execut- 
 ing it tlie parties liad schedules of the debts due 
 by and owing to the firm, showing a balance in 
 favor of the firm, and the prayer for relief in 
 A's complaint, may properly be considered ; 
 and where such complaint merely asks tliat B 
 may be required to pay over the balance of the 
 debts collected or that might with due diligence 
 have been collected, after deducting the debts 
 of the firm, the contract should be construed as 
 requiring him to pay no more than such bal- 
 ance. N. Y. Supr. Ct., 1872, Stapenhorst v. 
 Wolf, 35 N. Y. Supr. (3 J. & Sp.) 25. 
 
 107. A loan, obtained by one partner upon 
 his individual credit, but used in the partner- 
 ship business, which is credited upon the firm 
 books to sucli partner personally, and so re- 
 mains with his knowledge and without dissent 
 for a number of years, — Held, not to be in- 
 cluded in an agreement, made by the other 
 partner, upon dissolution, to discharge all the 
 firm debts except claims of the retiring partner. 
 Ct. App., 1870, Gibbs v. Bates,iS N. Y. (4 Hand,) 
 192. 
 
 108. Ezcavation. Under a written contract 
 between a city and a contractor for the grading 
 of a street, which specifies the work to be done 
 as tlie grading of the "entire width" of the 
 street, excavating in rock to be at a certain 
 price per cubic yard, nothing being said about 
 the slopes in such excavation outside of tlie 
 perpendicular line of the street, and " in case 
 any otlier work is required to be done in order 
 to carry out the provisions of this agreement, 
 whicli is not called for in the specification, that 
 he will go on and do the same without any 
 claim for extra compensation therefor," the 
 contractor cannot claim and recover compensa- 
 tion for sucli slopes, altliough he does in fact 
 excavate them ; such work not being called for 
 by the contract, but falling within the provis- 
 ion for other work to be done without extra 
 compensation. Sup. Ct., 1873, Voarhis v. Mayor, 
 etc. of New York, 46 How. 116. 
 
 109. Where parties make such a contract, 
 they are bound by its terms though unusual, 
 and a custom or usage cannot be set up to 
 change its effect. lb. 
 
 110. Fixing boundary. The owners of ad- 
 joining lands, having a dispute as to the boun- 
 dary, agreed that one M should go upon the 
 land and locate the boundary of one lot as it 
 was when occupied by his father ; and that the 
 boundary so ascertained by him should be and 
 remain the boundary of such lot. Held, that 
 tlie agreement was valid and binding between 
 the parties, and fixed as the true line the one 
 that existed and was recognized as the line 
 while M's father occupied the land ; but that 
 M, in locating the line, acted as arbitrator, and 
 his power was revocable. Ct. App., 1871, Wood 
 V. Lafayette, 46 N. Y. (1 Sick.) 484. 
 
 111. Formation of stock company. An 
 agreement between an inventor and other par- 
 ties, that the latter shall form a stock company 
 for the manufacture of articles under the patents 
 of the former, and purchase such patents and 
 
 pay him therefor in stock of such company, is 
 personal to the purchasers ; and under it they 
 are obligated to form the company, and if they 
 fail to do so within a reasonable time, they are 
 liable in damages to the vendor. Sup. Ct., 1872, 
 Kirschmann v. Lediard, 61 Barb. 573. 
 
 112. Furnishing sand. Where the owner 
 of land agreed to permit another to dig molding 
 sand thereon at " such places " as he should 
 designate, at a rate specified per ton, the digging 
 to commence at the opening and cease at the 
 close of navigation ; and having designated one 
 place, at which the other party dug until it was 
 exhausted in the middle of the season, refused 
 to designate another place, although there was 
 plenty of such sand remaining on the premises ; — 
 Held, that the contract did not restrict the party 
 digging to the place first designated, and that 
 such refusal was a breach, for which an action 
 would lie. Ct. App., 1871, Hurd v. Gill, 45 N. 
 Y. (6 Hand,) 341. 
 
 113. Furnishing satisfactory sureties. 
 Under a contract, formed by a published notice 
 that proposa,ls for doing certain public work will 
 be received, and that each bid must be accom- 
 panied by the consent of two sureties, who 
 should be satisfactory to the commissioners, that 
 they would become bound for the faithful per- 
 formance of the work, and a bid put in, with two 
 persons named as sureties, and the acceptance 
 thereof by the commissioners having charge of 
 the work, such commissioners are not bound to 
 accept any person as surety except the persons 
 named in such bid, even though such person 
 may be responsible. Sup. Ct., 1874, Adams v. 
 Ives, 1 Hun, 457. 
 
 114. Guaranty. A guaranty of the prompt 
 payment of the interest on a certain bond, held 
 not to extend to the payment of interest accru- 
 ing after default in payment of the principal. 
 Ct. App., 1871, Hamilton v. Van Rensselaer, 43 N. 
 Y. (4 Hand,) 244. 
 
 115. After the principal sum has fallen 
 due, interest Is recoverable, not as interest, but 
 by way of damages for breach of contract. lb. 
 
 116. To guaranty. Where the makers of 
 a joint note agree to give, in settlement thereof, 
 a new note to be executed by one and guaran- 
 tied by the other, the holder of such note is 
 entitled to a guaranty whicli is valid in law and 
 can be enforced against the guarantor, and if, by 
 mistake, one is given which is not valid, and the 
 guarantor refuses, on demand, to execute a valid 
 one, he will be liable on the original note. Sup. 
 Ct., 1863, Ellenwood v. Fults, 63 Barb. 321. 
 
 117. Indorsement. The contract between 
 indorser and indorsee consists partly in the 
 written indorsement, partlj' in the delivery of 
 the bill, and partly in the understanding or in- 
 tention with which delivery was made ; and that 
 intention may be gathered from the words, 
 written or verbal, of the parties ; from the 
 usage of the place or of trade ; from tlie course 
 of dealing between the parties, or from their 
 relative situations. Sup. Ct., 1875, Bruce v. 
 Wright, 3 Hun, 548. 
 
 118. Limiting clause. A clause in a con- 
 tract for the delivery of a certain quantity of 
 coal, that " every effort will be made by the 
 company for the fulfilment of its contracts, — 
 but if at any time the business of the company 
 is so interrupted by strikes among miners, or 
 other employees, — as to materially decrease the 
 quantity of coal, — the company will not hold it- 
 self liable for or pay any damages sustained by 
 reason of the non-delivery of the coal now 
 sold," limits the absolute undertaking to sell 
 
CONTRACT. 
 
 167 
 
 and deliver ; and the promise to use " every 
 effort" to perform merely requires tiie use of 
 all reasonable and praetieal means to procure 
 and deliver the coal, according to tlie well- 
 known usage and practice of those engaged in 
 similar business, or such as the jury might 
 deem reasonable and proper under the circum- 
 stances, and such as the other party might be 
 presumed to have expected. Ct. App., 1874, 
 Delaware, Lack, and W. R. R. Co. v. Bouns, 68 N. 
 Y. (13 Sick.) 573; Rev'g S. C, 36 N. Y. 
 Supr. (4 J. &Sp.) 126. 
 
 119. The company is not thereby prohibit- 
 ed from conducting its mining operations on the 
 same general principles as it would have been 
 governed by had the contract not been made ; 
 nor is it bound to resort to extraordinary or un- 
 usual means to prevent strikes, such as to re- 
 frain from reducing the wages of its employees, 
 when that is reasonable and proper under the 
 circumstances ; and it will not be liable to the 
 purchaser for damages resulting from a strike 
 caused by such reduction. lb. 
 
 120. To navigate vessel. A contract to 
 navigate a vessel from Oswego to Martinsburgh, 
 contained a clause whereby the owner assumed 
 the " risk of navigation ; " and performance was 
 prevented because the boat was too large to 
 pass the locks on the Black River canal with her 
 cargo ; — Held, that the terms " risk of naviga- 
 tion," as thus used, were not syonymous with 
 " perils of navigation," but included the risk in 
 question. Com. App., 1872, Pitcher y. Hennes- 
 sey, 48 N. Y. (3 Sick.) 415. 
 
 121. To pay on completion of road. A 
 contract to pay a certain sum in one year from 
 tlie completion and operation of a railroad 
 through a town, contemplates a road so far com- 
 pleted tliat all work thereon necessary for its 
 original construction shall have ceased, and that 
 it be kept in operation for a reasonable length 
 of time, without great discomfort, uncertainty 
 and hazard to those using it. Ct. App., 1874, 
 Parsons v. Tilden, 59 N. Y. (14 Sick.) 639. 
 
 122. — in case of sale. Where a purchaser 
 of a patent, as a part consideration for the sale, 
 agreed with the inventor and with a creditor 
 of the latter, tliat, in consideration of the release 
 of the inventor from his indebtedness, such 
 purchaser would pay the same if he should 
 at any time sell or dispose of his half interest 
 in the invention ; — Held, that the assignment 
 and transfer by him of such half interest to 
 a corporation, and receiving in payment there- 
 for the stock of such corporation, was a sale 
 or disposition of such half interest, within 
 the meaning of the contract, although, as a 
 stockholder of the corporation, he still liad an 
 interest in the patent. N. Y. Supr. Gt., 1872, 
 Pekon V. Bulkley, 34 N. Y. Supr. (2 J. & Sp.) 
 283. 
 
 123. — in land. An agreement by parol be- 
 tween father and son that the latter shall remain 
 at home after majority and work for the former 
 on his farm so long as he lives, and shall be paid 
 therefor by sharing the farm with his brother 
 after the father's death, is void only as to the 
 conveyance of land in payment; and if the 
 father either puts it out of his power to pay in 
 land, or fails to devise the land as agreed, the 
 son can recover the value of his services from 
 the estate. Sup. Ct., 1866, Campbell v. Campbell, 
 65 Barb. 639. 
 
 124. Under such a contract the son is 
 bound to go on performing his contract during 
 the life of his father, and cannot cease to labor 
 for him, daring his lifetime, and sue for com- 
 
 pensation for his services, on the ground that 
 the contract to pay. in land is void. lb. 
 
 125. Such a contract contemplates payment 
 only by will, and for that reason no recovery 
 can be had during the lifetime of the father, 
 lb. 
 
 126. If the father puts it out of his power 
 to perform, doubtless from that time the con- 
 tract would be rescinded, and the son be entitled 
 to recover. lb. 
 
 127 — out of proceeds. An agreement be- 
 tween parties holding a decree of foreclosure 
 and a sheriff's certificate of sale of the mort- 
 gaged premises on execution, and one who was 
 entitled, as a judgment creditor, to redeem from 
 such foreclosure and certificate, that the latter 
 shall forbear to redeem pending a suit with an 
 adverse claimant of the premises, and " that his 
 forbearance to redeem shall not prejudice the 
 lien of his judgments, or his right to the pay- 
 ment of said judgments out of the future pro- 
 ceeds of the said property," gives such party no 
 right or claim to have the rents of the premises 
 applied in payment of his lien. The word 
 " proceeds " in that connection means money re- 
 ceived upon a sale of the property. N. Y. Supr. 
 Ct., 1873, Belmont v. Ponvert, 35 N. Y. Supr. 
 (3 J. & Sp.) 208. 
 
 128. To perform order. An agreement 
 that a defendant in a pending or prospective suit 
 shall "obey and perform all orders and judg- 
 ments of the court or courts in which any such 
 action is or may be pending," will bind the 
 promisor to the payment of a money judgment 
 recovered against such defendant, in case of liis 
 failure to pay the same. Ct.App., 1871, Claflin 
 V. Bell, 43 N. Y. (4 Hand,) 481. 
 
 129. Profits and dividends. An agreement 
 by the vendee upon a purchase of stocks that 
 all " profits and dividends " thereon up to a 
 certain date shall be paid to tlie vendor, 
 relates simply to profits and dividends realized 
 by such vendee as a stockholder, or, in other 
 words, those declared by the company prior 
 to that date ; and does not give to such 
 vendor a right to such dividends declared subse- 
 quently, though made from profits accrued prior 
 thereto. Ct. App., 1874, Hyattv. Allen, 66 N. Y 
 (11 Sick.) 553. 
 
 130. Privilege of publication. Under con- 
 tract whereby an author gives a publisher the 
 privilege of publishing as many copies of his 
 work as he sees fit, on condition of paying a 
 certain percentage of the price, which such pub- 
 lislier agrees to pay, the latter does not obtain 
 the sole and exclusive right to publish the work, 
 but the author may give to other pubhshers a 
 similar — though not an exclusive — right of pub- 
 lication. N. Y. Supr. Ct., 1871, Willis v. 
 Tibbals. 33 N. Y. Supr. (IJ. & Sp.) 220. 
 
 131. To repair. Where plaintiff, on being 
 applied to as to the repairs of a vessel, refused to 
 fix any limit on the cost, but stated his opinion 
 that they would amount to $6,000 or $8,000, and 
 afterward, on receipt of a letter from the owjier 
 directing him to make certain specified repairs 
 with strictest economy of expenditure, and re- 
 questing him, if upon, furtlier examination the 
 repairs seemed likely to exceed his estimate, to 
 notify the writer at once, as he did not wish to 
 go beyond that sum, examined the vessel before 
 commencing the repairs, and finding her much 
 worse than was supposed, so informed the 
 owner; but nothing was said about tlie amount 
 of additional expense required,— i?eW, tliat the 
 making of the repairs named in the letter was 
 the primary and leading intent of the contract, 
 
168 
 
 CONTRACT. 
 
 without other restriction than the observance of 
 tlie strictest economy ; that it was not intended 
 tlie repairs should be stopped when tlie cost had 
 readied $8,000, and that tlie plaintiff having, in 
 good faitli, expended a large sum, could recover 
 the whole amount. Ct. App., 1871, Carll v. 
 Spofford, 45 N. T. (6 Hand,) 61. 
 
 132. Reservation. Under a contract for the 
 sale of a farm, the vendor reserving the growing 
 crops and storage therefor, also reserving a por- 
 tion of the house and garden, and agreeing to 
 pay rent therefor, but providing that, in case he 
 should give full possession and remove from the 
 premises " within three weeks, then the above 
 provision in reference to the rent of said premises 
 shall be inoperative," the vendor's giving posses- 
 sion within three weeks does not affect his title 
 to the growing crops. Sup. Ct., 1875, Wilson v. 
 Van Pelt, 4 Hun, 422. 
 
 133. When growing crops are reserved as 
 such, the party reserving them is not, in the 
 absence of an agreement to pay, liable for the 
 use of the land on which they grow, and has the 
 right of ingress and egress for the purpose of 
 harvesting and removing them. lb. 
 
 134. Royalty. A party who agrees to pay 
 the owner of a patent for the manufacture 
 of rakes $10 for each rake that should be 
 made or sold, or disposed of by him or by his 
 authority or procurement, is chargeable with tlie 
 royalty upon unfinished rakes included in a sale 
 to an incorporated company which finished and 
 sold them. Sup. Ct., 1875, Marsh v. Dodge, 
 4 Hun, 278. 
 
 135. To secure. The word " secure," in a 
 contract to sell and convey land as soon as the 
 purcliaser secures the payment of the purchase- 
 price, must be deemed used in its popular sense, 
 and it implies a term of credit to be given, and 
 something to be received by the vendor to secure 
 the payment at a future time. Sup. Ct., 1866, 
 Foot V. Webb, 59 Barb. 88. 
 
 136. To sell lease. Although an executory 
 contract for the sale of a leasehold interest in 
 premises, or generally for the sale and assign- 
 ment of a lease of premises for a term of years, 
 requires the vendor to give a good title to the 
 interest agreed to be sold, and to transfer a lease 
 that shall vest in the assignee a good title for 
 the term therein expressed, yet a contract to sell 
 and assign a particular lease given by a munici- 
 pal corporation upon a sale for unpaid taxes 
 does not bind the vendor to warrant the title to 
 the premises for the term therein expressed. 
 Ct. App., 1874, Boyd v. Schlesinger, 59 N. Y. 
 (14 Sick.) 301. 
 
 137. To sell and ship. Under a contract to 
 sell a quantity of coal, to be shipped from Phila- 
 delphia to New York, containing stipulations on 
 the part of the vendors as follows : " No respon- 
 sibility assumed as regards providing vessels, 
 &c., but every exertion will be used to engage 
 them, free of charge ; due diligence will be used 
 to fill this contract ; " the vendors are bound to 
 use every exertion to obtain vessels, and to do 
 so with diligence, and if they do not obtain 
 them in the usual time they are nevertheless 
 hound to ship to the purchasers according to the 
 time when their order was received, and are 
 liable on the contract if they fail to do so. Sup. 
 Ct., 1873, York V. Ver Planck, 65 Barb. 316. 
 
 138. Mere letters from the purchasers inquir- 
 ing as to the cause of the delay in shipment, and 
 urging performance of the contract, do not 
 amount to the making of a new contract, or 
 operate as an extension of the time for ship- 
 ment, but w^U, at most, operate as a waiver of 
 
 the previous default in case the contract is at 
 once performed. lb. 
 
 139. To support suit. An agreement by 
 parties having a common interest in the deci- 
 sion of a disputed legal question, to pay each 
 his share of costs, equally divided, to engage 
 counsel and bring their cases before the courts, 
 confers no authority upon any of the signers less 
 than all, to act upon it ; and the delivery there- 
 of to an attorney by a portion of the signers, 
 calling themselves a committee, with a request 
 that he act as counsel, gives to him no right of 
 action against any of the others, without proof 
 of their assent. Ct. App., 1871, Smith v. Du- 
 chardt, 45 N. Y. (6 Hand,) 597. 
 
 140. To supply on commission. An 
 agreement by a manufacturer to consign all the 
 goods of a certain kind which he may manufac- 
 ture to another party, and to pay such party 
 seven and one-half per cent, for selling the same, 
 does not bind him to continue the manufacture 
 of such goods ; but he may at any time refuse 
 to do so, unless the other party will make a 
 different agreement as to commissions, etc. 
 Com. App., 1872, Hadden v. Dimick, 13 Abb. 
 N. S. 135 ; S. C, 48 N. Y. (3 Sick.) 661; Eev'g 
 31 How. 196. 
 
 141. A contract to supply a party with blank- 
 ets to be sold on commission, he agreehig that 
 they " shall not be sold for less than those made 
 by D & S, at the proper time of selling them," 
 makes the market price of tlie blankets of D & 
 S the minimum price at which they can be 
 sold, and that can be determined as well by 
 proof of what they can be bought for as by 
 proof of actual sales. Sup. Ct., 1875, Samson t. 
 Glover, 4 Hun, 121. 
 
 IV. Optional, Alternative and Continuing 
 Contracts. 
 
 142. Optional. A proposition to perform 
 services, etc., at a certain rate in gold or a cer- 
 tain other rate in currency, when accepted, 
 gives an option as to the mode of payment; 
 and this option belongs first to the party 
 who is to make the payment, but he must 
 exercise it before he is in default, otherwise 
 it will fall to the other party, and his elec- 
 tion will bind both. N. Y. Supr. Ct., 1871, 
 Stephens v. Howe, 34 N. Y. Supr. (2 J. & Sp.) 
 183. 
 
 143. The failure of the party who is to make 
 the payment to do so on the day fixed therefor, 
 if one is fixed, or on demand after the debt is 
 due, when no day certain is fixed, puts him in 
 default, and takes away his option. lb. 
 
 144. In case of such a contract, the receiving 
 of bills for the services performed, etc., made 
 out on the basis of payment in gold, without 
 objection, is sufScient evidence of an election 
 by the party who is to make the. payment to 
 pay on that basis ; and the sending of bills so 
 made out is sufficient evidence of an election by 
 the other party to receive payment on that 
 basis. lb. 
 
 145. Where, by an agreement with a tenant 
 contained in his lease, he was to have the privi- 
 lege of purchasing at the end of his term at a price 
 to be determined by the value of the surrounding 
 or opposite land ; it being further agreed that if 
 there should be no sales of the surrounding or 
 opposite property during the term, by the aid 
 of which to determine the value of the premises 
 leased, then the privilege of purchasing should 
 cease and determine, — Held, that the intent was 
 that such tenant should have the option to pur- 
 
CONTKACT. 
 
 169 
 
 chase at the end of the term, at the tlieu value 
 of the premises, to be ascertained by refer- 
 ring to sales made in the vicinity, and com- 
 paring their value with that of lots sold, and 
 tllat the price paid for other lots was not con- 
 clusive. Ct. App., 1873, Sharkey v. Larkin, 52 
 N.y. (7 Sick.) 623. 
 
 146. A writing in the words following, viz. : 
 " Tills is to certify that I, S K, sell to P G, 
 etc., for the sum of $17,000, the house," etc., 
 describing it, " and that I have received the sum 
 of $76, tlie balance, amounting to $16,925, to be 
 paid in thirty days," — Held, to be a contract of 
 sale which might be specifically enforced against 
 tlie purchaser, and not an option given the lat- 
 ter to purchase in tliirty days. N. Y. C. P., 
 1871, Simonson v. Kissick, 4 Daly, 143. 
 
 147. A contract made by telegraph between 
 the owner of a tlieatre and an author, the for- 
 mer asking, "Wliat are your terms for Fer- 
 nande ? Can I produce it for May seventh ? " the 
 latter answering, " Twenty dollars per night ; 
 you can annoiince it for May seventh; if you 
 conclude, will send scene plots to-night ; " and 
 the former replying, " Agreed to terms ; piece 
 announced for- May seventh ; send manuscripts 
 and plots immediately ; " binds tlie former only 
 to one performance of the play, leaving it op- 
 tional with tiim to continue its use. Sup. Ct., 
 1875, Schonberg v. Cheney, 3 Hun, 677. 
 
 148. Alternative. Under an assignment of 
 a patent, whereby the assignee agrees to pay 
 $1,000 before the end of a year, or re-assign 
 the patent, he has tlie whole year in which to 
 paj' the money ; but no right to pay, nor has 
 the assignor the right to demand payment, after 
 the year. The assignor has then the right to 
 demand a re-assignment ; and, in case of a re- 
 fusal, may maintain an action for the value of 
 the patent, whether more or less than $1,000. 
 Ct. App., 1871, Manvel v. Holdredge, 45 N. Y. (6 
 Hand,) 150. 
 
 149. A contract to furnish certain materials 
 for the construction of fourteen houses on the 
 lots of ant>ther, and do certain filling, for the 
 sum of $23,000, to be paid and accepted by the 
 conveyance to him of a certain house and lot, 
 subject to specified incumbrances, and by the 
 paymeht of $9,000 in cash, is not to be con- 
 strued as giving the employer the option to 
 convey tlie house and lot or pay $14,000 ; but 
 the contractor has tlie right to enforce the con- 
 veyance of the house and lot, or in case of the 
 employer's neglect or inability to convey, he 
 may recover the value, although exceeding the 
 sum of $14,000. Ct. App., 1874, Dowdney v. 
 McCollom, 48 How. 342 ; S. C, 59 N. Y. (14 
 Sick.) 367. 
 
 150. Continuing. Where a contract is 
 silent as to time of performance, either party 
 can limit it by a demand or offer ; and, so long 
 as they omit to limit the time, it is a continuing 
 contract. N. Y. Supr. Ct., 1875, Kemple v. Dar- 
 row, 39 N. Y. Supr. (J. & Sp.) 447. 
 
 151. The act of sending a business advertise- 
 ment to a newspaper for publication is, in the 
 absence of instructions to the contrary, a direc- 
 tion to publish in each issue until notice is 
 given to stop, unless there be something in the 
 character of the advertisement itself indicating 
 that its insertion is to be limited to a certain 
 period. N. Y. Supr. Ct., 1870, Ahem v. Stan- 
 dard Life Ins. Co., 2 Sweeny, 441. 
 
 152. When one is hired for a compensation 
 fixed by agreement of the parties for a specified 
 time, and continues to serve in the same ca- 
 pacity after its expiration, the law will presume. 
 
 in the absence of other proof, that he is to re- 
 ceive compensation at the same rate ; but this 
 presumption does not arise where it appears 
 that at the commencement of the service there 
 was no agreement as to term or compensation ; 
 but that by a subsequent agreement the com- 
 pensation was fixed for a specified time. Ct. 
 App., 1875, Smith V. Velie, 60 N. Y. (16 Sick.) 
 106. 
 
 v. Conditions. 
 
 153. When made part of contract. A 
 
 clause in the body of a written or printed con- 
 tract as follows, viz. : " Subject to the condi- 
 tions printed on the othe* side, and which form 
 a part of this agreement," makes those condi- 
 tions a part of the contract, and binding on tlie 
 party who signs it, who must be presumed to 
 have knowledge thereof. N. Y. Supr. Ct., 1875, 
 Van Nostrand v. N. Y. Guaranty ^ Indemnity 
 Co., 39 N. Y. Supr. (7 J. & Sp.) 73. 
 
 154. Approval. Under a contract to do 
 work upon a ship, the materials and workman- 
 ship to be subject to the approval of a person 
 named, and payment to be made on his order, 
 the production of his order is a condition to the 
 recovery of payment ; but its non-production 
 may be excused by proof of performance by 
 the contractor, and of an obstinate and unrea- 
 sonable, or fraudulent refusal to give the order 
 on application. Sup. Ct., 1875, Smith v. Wright, 
 4 Hun, 652. 
 
 155. Arbitration. Where a contract for the 
 transportation of coal for the defendant over 
 plaintiff's canal, provided for the payment of 
 additional toll in case of a contemplated enlarge- 
 ment of the canal, to be ascertained in the 
 manner following, viz : The cost of transporta- 
 tion with tlie aid of all improvements previous 
 to the enlargement, and the cost after the enlarge- 
 ment was completed, both to be fairly ascer- 
 tained or estimated, and one half of such portion 
 of the reduction in the cost as should be esti- 
 mated to have been produced by the enlargement 
 alone, to be thereafter permanently charged as 
 additional toll ; and, in case the managers of 
 the two companies could not agree upon the 
 amount of reduction or the proportion due to 
 the reduction, then the questions to be submit- 
 ted to arbitrators to be chosen by them, whose 
 decision should be final and obligatory, — Held, 
 in an action to recover additional toll, 1. That 
 a submission and ascertainment by award of the 
 amount of additional toll to be paid, was a con- 
 dition precedent to the right of action therefor ; 
 2. That the contract contemplated an actual 
 reduction of the cost of transportation by tlie 
 enlargement, and this was to be established by 
 ascertaining the actual cost both before and 
 after the enlargement from positive data, and not 
 from the opinion or conjecture of the parties or 
 arbitrators as to what the coal might be trans- 
 ported for. Ct. App., 1872, Prest., etc., of Dela- 
 ware Sr Bud. Canal Co. v. Pa. Coal Co., 50 N. Y. 
 (5 Sick.) 250. 
 
 156. Cancellation. Under a contract be- 
 tween an insurance company and a soliciting 
 agent, whereby such agent was to receive during 
 the time he acted as such agent five per cent, 
 commission upon the amount of annual pre- 
 miums due and payable in each year after tlie 
 first, upon all policies solicited and secured by 
 him,— and in case the company should cancel the 
 contract, as it had the riglit to do, it should con- 
 tinue to pay the agent or his wife the commissions 
 as aforesaid, provided he should perform the 
 
170 
 
 CONTRACT. 
 
 necessary service in procuring payment of the 
 premiums, he is entitled to commissions on such 
 subsequently accruing premiums only in case he 
 continues to act, or the contract is canceled by 
 tlie act of tlie companj'. If it is canceled by 
 mutual consent he cannot recover them. Ct. 
 App., 1872, Shaw v. Home Life Ins. Co., 49 N. Y. 
 (4 Sick.) 681. 
 
 157. Certificate. A provision in a building 
 contract that certain certificates shall be obtain- 
 ed from an architect before payments are made, 
 applying in terms only to the work done and 
 materials furnished under the original contract, 
 will not affect extra work done under a subse- 
 quent parol agreement, unless it is made subject 
 thereto by express agreement. N. Y. Supr. Ct., 
 1875, American Corrugated Iron Co. v. Eisner, 39 
 N. Y. Supr. (7J. &Sp.)200. 
 
 158. Under a contract between the city of 
 New York, by the Croton Aqueduct Board, and 
 a contractor for paving a street, which provided 
 that the board should appoint inspectors of the 
 work, and that the contractor should not be 
 entitled to receive payment for any portion of 
 the work until the same should be fully com- 
 pleted according to the agreement, and such 
 completion duly certified by the inspectors 
 employed on the work and by the water pur- 
 veyor, — Held, that unless tlie certificate of the 
 inspectors and water purveyor was produced or 
 its non-production satisfactorily excused or 
 accounted for, the contractor could not recover 
 pay for the work. N. Y. Supr. Ct., 1873, Guidet 
 V. Mayor, etc., of New York, 36 N. Y. Supr. (4 J. 
 & Sp.y 557. 
 
 159. The neglect of the board to keep inspect- 
 ors on the work, and their unreasonable or ob- 
 stinate refusal to cause such inspectors, when the 
 work was fully completed according to contract, 
 to furnish the contractor with the proper certifi- 
 cates on his application, would excuse the non- 
 production of the inspector's certificate, but not 
 that of the water purveyor. Babbouk, C. J., dis- 
 sents, lb. 
 
 160. A condition in a contract for doing public 
 work, that the contractor shall not be entitled to 
 payment until the work has been completed and 
 duly certified by the water purveyor of the city 
 of New York, is a condition precedent and the 
 contractor cannot recover payment until he pro- 
 cures such certificate. The refusal of the pur- 
 veyor to issue the certificate while restrained by 
 injunction, is not illegal or unreasonable within 
 the rule wliich excuses performance of a condi- 
 tion precedent. Sup. Ct., 1875, Bowery Nat. 
 Bank v. Mayor, etc., of New York, 3 Hun, 639. 
 
 161. A provision that payment shall be made 
 on confirmation of the assessment, makes such 
 confirmation a condition precedent, and pay- 
 ment cannot be recovered until it is performed, 
 unless the delay is shown to hare been caused 
 by the collusion, negligence or fraud of the 
 defendant. lb. 
 
 162. Decision of engineer. Under a con- 
 tract for work in constructing railroad tracks, 
 which provides " that all stone obtained from 
 excavations which may in the opinion of the 
 engineer be suitable for masonry shall be the 
 property of the company," the decision of the 
 engineer that stones are suitable for masonry is a 
 condition precedent to tlieir becoming the prop- 
 erty of the company. Sup. Ct., 1875, Read v. 
 Decker, 6 Hun, 646. 
 
 163. Loss. An agreement for the hiring of a 
 man for three years, at a specified price, with 
 the use of a house to live in during the term, 
 contained a clause binding the employer in case 
 
 he should sell the premises before the expiration 
 of the term, to pay the servant $300, provided 
 he could not make a satisfactory bargain with 
 the purchaser to stay on the premises; — Held, 
 that it was the intention of the parties simply to 
 indemnify the servant against loss or damage, 
 in case he should be thrown out of employment 
 and a place to live in, by the sale of the premises, 
 and fix the measure of compensation ; and that 
 he having, after a sale of the premises, been 
 offered by the purchaser the same terms con- 
 tracted for by his original employer, and refused 
 them, he must be deemed to have refused a 
 " satisfactory bargain with the purchaser," and 
 was not entitled to the $300 stipulated. Sup. 
 Ct., 1871, Pullar v. Easton, 6 Lans. 247. 
 
 164. Such servant having continued to occupy 
 the premises and to work for the purchaser, 
 without any special contract as to his ' wages, 
 must be deemed to have made with the pur- 
 chaser a satisfactory bargain within the meaning 
 of the contract. lb. 
 
 165. Notice. Under a contract for the sale 
 of a certain quantity of oil, to be delivered in 
 lots at the seller's option, during certain months, 
 which contains a clause as follows, viz : " Five 
 days' notice to buyer on each lot," the giving of 
 such notice is a condition precedent to the right 
 of the vendors to deliver, and to the obligation 
 of the vendees to receive the oil. N. Y. Supr. 
 Ct., 1870, Stokes v. Brown, 2 Sweeny, 457. 
 
 166. The contract being to deliver in bulk 
 lighters, all that is necessary to enable the ven- 
 dees to recover for a breach is to show that they 
 were always ready and willing to send their 
 lighters and to receive and pay for the oil, when- 
 ever required so to do by the vendors' notice, 
 lb. 
 
 167. Performance by other party. An 
 agreement by the purchaser of an interest in a 
 patent, in consideration of such purchase, to 
 construct a machine at a certain expense, accord- 
 ing to the letters-patent, to be used in promoting 
 the formation of a stock company, in which the 
 inventor was to have the right of representation 
 by his remaining interest in the patent, — Held, 
 to be a condition precedent to the formation of 
 such a stock company, for non-performance of 
 which the inventor might refuse to jo^n, and 
 bring his action for damages. Jones, J., dissents. 
 N. Y. Supr.Ct., 1869, Hart v. Fitch, 2 Sweeny, 9. 
 
 168. Under a contract on the one part to 
 " build, furnish and erect two square engines, 
 with pumps " and all necessary apparatus, to 
 put the same in full and complete order, &c., and 
 that they shall perform in a certain manner, and 
 on the other part to furnish a suitable and suflS- 
 cient building in which to set them up, — Held, 
 that the furnishing of such building was a con- 
 dition precedent. Ct. App., 1874, Water Com- 
 missioners of Detroit v. Burr, 56 N. Y. (11 Sick.) 
 665 ; Aff'g S. C, 35 N. Y. Supr. (3 J. & Sp.) 522. 
 
 169. The duty of furnishing such a building is 
 absolute, and the contractors are not bound to 
 give notice that the building furnished is defec- 
 tive, lb. 
 
 170. When by the terms of a contract the pay- 
 ment of money is to be made after the perform- 
 ance of that which is the consideration, full 
 performance on the part of the payee is a con- 
 dition precedent to his right to payment on the 
 contract. N. Y. Supr. Ct., 1872, Cram v. Knuhel, 
 43 How. 389 ; S. C, 34 N. Y. Supr. (2 J.& Sp.) 
 443. 
 
 171. Substantial performance is not enough, 
 where the person for whom the work is done 
 has neither voluntarily accepted it, nor waived 
 
CONTRACT. 
 
 171 
 
 a faithful performance by the other party. 
 Strict performance of a condition precedent is 
 not excused even by inevitable accident. lb. 
 
 172. Thus, where a builder's contract made a 
 payment due when the trimmings were all done 
 and doors all hung, if the builder abandons the 
 work, leaving part of the doors unhung and a 
 considerable part of the trimmings undone, he is 
 not entitled to the payment. lb. 
 
 173. Where, from the nature of the contract, 
 as in case of a builder's contract, a party must 
 receive tlie benefits of a partial performance in 
 advance of full performance, and is under no 
 obligation to pay until the performance is com- 
 plete, he may retain them until then without 
 compensation. A mere silent occupation of a 
 building partially completed is not a waiver of 
 the right to insist upon completion according to 
 the terms of tlie contract. lb. 
 
 174. A contract by a peach grower to ship all 
 the peaches grown by him during the peaeli sea- 
 son of 1868, to anotlier party at New York, to 
 be sold on commission, the latter party agree- 
 ing to obtain an average price of $7 per crate 
 or box, is an entire contract, and tlie ship- 
 ment of his peaches by the former, during the 
 whole of the peach season of 1868, was a condi- 
 tion precedent to his right to claim the average 
 price stated. N. Y. Supr. Ct., 1875, Anderson 
 V. West, 38 N. Y. Supr. (6 J. & Sp.) 441. 
 
 175. Although technical, inadvertent, or un- 
 important omissions or defects in performing a 
 contract, will not bar a party of relief, yet, when 
 performance is made a condition of payment, 
 substantial compliance with the terras of the 
 contract mnst be shown or no recovery can be 
 had. Ct. App., 1872, Glacius v. Black, 50 N. Y. 
 (5 Sick.) 145. 
 
 176. Waiver of conditions. The perform- 
 ance of conditions precedent may be waived by 
 tlie parties to a contract, or excused on proper 
 grounds. Thus, where the purchaser of goods to 
 arrive, as " landed alongside duty paid," directs 
 tliem to be put in bond, for tlie purpose of ob- 
 taining the advantage of a reduction in duties 
 thereafter to take effect, that is a waiver of deliv- 
 ery alongside, and also of actual payment of du- 
 ties as a condition precedent to payment. N. Y. 
 Supr. Ct., 1874, Stokes v. Eecknagel, 38 N. Y. 
 Supr. (6 J. & Sp.) 368. 
 
 177. A provision in a contract for work and 
 labor, that the work shall be completed by a 
 certain d-ate, and be paid for upon completion, 
 does not make the time of completion of the es- 
 sence of the contract ; and if the party doing the 
 work proceeds with it afterwards, with the assent 
 of the other party, he may recover for the work 
 done at the contract price. N. Y. Supr. Ct., 
 1875, Dillon v. Masterton, 39 N. Y. Supr. (7 J. & 
 Sp.) 133. 
 
 ATT. Alteration, Modification and Heforma- 
 
 TION. 
 
 178. Alteration. The insertion by the surro- 
 gate's clerk of the words " with the will annexed," 
 as descriptive of the obligor, in a bond given by 
 an administrator, after its execution, does not 
 change its legal force or character, and though un- 
 authorized, does not avoid tlie instrument or re- 
 lieve the sureties from liability thereon. Ct. App.. 
 1874, Casoni v. Jerome, 58 N. Y. (13 Sick.) 315. 
 
 179. Modification. A written contract may 
 be changed or superseded by a verbal contract 
 inconsistent therewith, made subsequently upon 
 sufficient consideration. N. Y. Supr. Ct., 1871, 
 Sulzbacher v. Davison, 34 N. Y. Supr. (2 J. & 
 Sp.) 145. 
 
 180. A contract for the hiring of furniture at 
 a stipulated monthly rent, with an agreement by 
 the lessor indorsed, to give a bill of sale when 
 the value of the articles Iiad been paid in rent, — 
 Held superseded by a subsequent agreement by 
 the bailee to keep the articles and pay the bal- 
 ance at a time certain, and the surrender of tlie 
 receipts for rent, and the giving by the bailor of 
 a receipt for tlie whole amount as a payment 
 upon a purchase of the property, lb. 
 
 181. Under a contract between the members of 
 an association, that some of them shall furnish 
 information of a certain character to the associa- 
 tion, and as compensation therefor receive a 
 share of the profits of its business, such' parties 
 cannot be required to furnish the information in 
 writing ; and it may well be doubted whether 
 the terms of the contract can be altered by reso- 
 lution of tlie association so as to require such 
 parties to enter the information in books, with- 
 out tlieir assent. Sup. Ct., 1872, Luce v. Harts- 
 horn, 7 huns. 331 ; Aff'd, S. C, 56 N. Y. (11 Sick.) 
 621. 
 
 182. In an action by one of such parties for a 
 balance due on the contract, an instruction that 
 the plaintiff was bound to comply with the reso- 
 lution when notified to do so, is one of which the 
 defendants cannot complain. lb. 
 
 183. Reformation. If a vendor of land who 
 in negotiating for tlie sale tliereof, has stated his 
 intention to reserve a strip of a certain widtli for 
 a house to be built for him, and pointed out tlie 
 lines, afterwards by mistake signs a contract 
 which reserves only a smaller strip, and the ven- 
 dee, knowing of the mistake, does not inform 
 the vendor of it, but obtains t(ie benefit thereof, 
 such conduct on his part is fraudulent, and enti- 
 tles the vendor to liave it reformed. Sup. Ct., 
 1872, Gillett T. Borden, 6 Lans. 219. 
 
 184. An undertaking given on appeal, and ex- 
 ecuted by several sureties, in the form of a joint 
 obligation, will not be reformed in equity, since 
 tlie instrument itself creates the whole liability 
 and there was no prior indebtedness. N. Y. 
 Supr. Ct. Sp. T., 1872, Perry v. Chester, 12 Abb. 
 N. S. 131. 
 
 185. Wliere a contract is first made by parol, 
 and a paper is afterwards drawn up, not as con- 
 taining the terms of the contract, but as a mere 
 memorandum or bill of parcels, it is unnecessary 
 to seek a reformation of the contract, to show 
 its terms, but tliey may be proved by parol. 
 N. Y. Supr. Ct., 1874, Cassidy v. Begoden, 38 N. Y. 
 Supr. (6 J. & Sp.) 180. 
 
 186. An action to reform a contract cannot be 
 maintained on the ground of mutual mistake, 
 where it merely appears that there was an un- 
 derstanding by one party that he was dealing in 
 view of a custom ; nor can an implied warranty 
 based on such custom be inserted as an express 
 warranty. lb. 
 
 187. No action can be maintained to reform a 
 contract on which the minds of the parties never 
 met. So held, where an insurance agent, being 
 requested by a person to insure " my house," 
 made out a policy on the house formerly owned 
 and occupied by the applicant, instead of tlie one 
 he then lived in. Sup. Ct., 1875, Mead v. West- 
 chester F. Ins. Co., 3 Hun, 608. 
 
 188. In order to authorize a court to reform 
 an insurance policy on the ground of mistake, 
 the evidence must show a mistake made by both 
 parties, and that the instrument is not sucli as 
 was intended bv eitlier. N. Y. Supr. Ct. Sp. T., 
 1874, McHuqh V. Imperial F. Ins. Co., 48 How. 
 230. S. P. Phillip V. Gallant, 1 Hun, 528. 
 
 189. To entitle a party to a reformation of a 
 
172 
 
 CONTRACT. 
 
 written contract, in an action therefor, he must 
 prove that it was the intention of both parties 
 to make a contract such as he seeks to hare es- 
 tablished, and that both so understood it, and 
 tliat this intention was frustrated by some fraud 
 or accident, or by the mutual mistake of the par- 
 ties. Ct. App., 1874, Jacksan y. Andrews, 59 N. Y. 
 (14 Sick.) 244. 
 
 190. That the plaintiff so intended or under- 
 stood the contrs^ct, and never agreed to it as 
 drawn, is ground, not for a reformation but for a 
 cancellation thereof. lb. 
 
 191. To authorize a court of equity to reform 
 a contract on the ground of mistake, it must ap- 
 pear, either that the mistake was mutual, or was 
 the mistake of one with the fraud of the other ; 
 and the evidence must be clear and satisfactory. 
 N. Y. C. P., 1871, O'Donnell v. Harmon, 3 Daly, 
 424. S. P. Welles v. Yates, 44 N. Y. (5 Hand,) 
 525. 
 
 192. Where an attempt to perform an existing 
 contract fails, through the misunderstanding of 
 the party attempting to perform as to the effect 
 of the instrument by which such attempt is con- 
 summated, equity will reform such instrument, 
 though the mistake be not mutual. Com. App., 
 1871, Wells V. Yates, 44 N. Y. (6 Hand,) 525. 
 
 193. The object of reformation, in such cases, 
 being the performance of the contract as made, 
 and not a rescission, relief will not be refused 
 because the party seeking it has failed to move 
 promptly in the matter, but only where the 
 delay has been unreasonable, or the court in its 
 discretion, considering all the circumstances, 
 deems it inequitable. Eabl, C, dissents. lb. 
 
 194. Although where parties agree to carry 
 out their contract by an instrument which, by 
 their mistake of law, does not effectuate their 
 intention, equity will grant no relief ; yet, where 
 they intend to reduce a parol agreement to writ- 
 ing, and to embody it in the instrument, and, by 
 not understanding the force of the language 
 used or by other mistake in drafting it, the in- 
 strument fails to express their agreement, equity 
 will conform it to the previous parol contract. 
 Com. App., 1872, Pitches- v. Hennessey, 48 N. Y. 
 (3 Sick.) 415. 
 
 195. A testator owning lands extending to 
 what was known as the " G Line," devised the 
 same in equal shares to his three sons, and 
 one of them conveyed the portion allotted to 
 him by a survey made for the co-tenants, de- 
 scribing it by the metes and bounds of such 
 survey, in which the " G Line " was not mention- 
 ed. It afterwards appeared that the surveyor 
 had made a mistake, and instead of following 
 the " G Line " had left between it and the land 
 granted a tract of 52 acres. Both parties 
 to the grant supposed the " G Line" to be iden- 
 tical with the line of the survey, and were igno- 
 rant that the grantor owned any land beyond 
 the latter. In an action by the grantee to reform 
 the deed so as to include the 52 acres, — 
 Held, that he was not entitled to the relief 
 sought. Cora. App., 1873, Whitaket- v. Whita- 
 her, 54 N. Y. (9 Sick.) 638. 
 
 196. Where one holding an open policy of in- 
 surance, which provides that no shipment shall 
 be considered insured until approved and indors- 
 ed on the policy by the company, leaves with 
 an oflEcer of the company a letter of advice, bill 
 of lading and invoice, for the particulars of a 
 shipment to be indorsed by the latter, in doing 
 which the officer makes a mistake both in the 
 description of the good? and by omitting the 
 name of an intermediate port on the voyage, the 
 contract will be reformed, even after loss, to 
 
 correspond with the particulars furnished. 
 N. Y. C. P., 1872, Brioso v. Pacific Mul. Ins. Co., 
 4 Daly, 246. 
 
 197. That an action to reform a policy of fire 
 insurance is not brought until after a loss, 
 though a circumstance proper to be considered in 
 weighing the testimony and determining whetji- 
 er a mistake was made, is not ipso facto a bar. 
 Ct. App., 1873, VanTuyl v. Westchester Fire Ins. 
 Co., 65 N. Y. (2 Sick.) 657. 
 
 VIL Eescission. 
 
 198. Slection bet-ween rescission and 
 other remedies. A party who has been de- 
 frauded in a contract may either affirm the 
 contract and sue for the damages occasion- 
 ed by the fraud, or disaffirm it and sue to re- 
 cover back whatever the other party has 
 received under it ; and in the latter case, he 
 must first restore or offer to restore all that he 
 has himself received under such contract. Sup. 
 Ct., 1875, Van Liew v. Johnson, 4 Hun, 415. 
 
 199. Where, upon sale of a heater with war- 
 ranty that it should heat a house in a certain 
 manner, the purchaser notified the vendor soon 
 after the purchase, that it did not conform to 
 the warranty, and the latter made some altera- 
 tions, after which no more complaints were 
 made until several months had elapsed, when 
 the vendor presented his bill, — Held, that the 
 purcha.ser could not then rescind, but must be 
 held to have elected to retain the heater with a 
 right of action for the breach of warranty. 
 N. Y. C. P., 1871, Butler v. Kellogg, 4 Daly, 1Q8. 
 
 200. Grounds for rescission. One who 
 has contributed money to a lawful object, which 
 has been abandoned before the money was ex- 
 pended, can rescind his subscription and recover 
 back tlie money from the diepositary. N. Y. 
 Supr. Ct., 1871, Bailey v. Belmont, 10 Abb. N. S., 
 270; S.C. sub. nam., Bailev T. O'Mahoney, 33 N. Y. 
 Supr. (IJ. &Sp.) 239. 
 
 .201. Dissatisfaction. Under a contract 
 whereby one party agrees to advance money to 
 an inventor for the development of his inven- 
 tion, and the latter assigns one-half of the in- 
 vention to the former, and agrees to pay him 
 the money advanced if he is not satisfied with 
 the practicability of the invention, although the 
 advancer may not arbitrarily and without rea- 
 son declare that he is dissatisfied, and demand 
 a return of his advances, yet he has a right to 
 rescind after several machines have been con- 
 structed, none of which prove satisfactory to 
 him or even to the inventor, and recover back 
 his advances. N. Y. Supr. Ct., 1872, Dykers v. 
 Stuart, 34 N. Y. Supr. (2 J. &. Sp.) 189. 
 
 202. Such advancer does not lose his right to 
 rescind by joining with the inventor in an agree- 
 ment with other parties, assigning to them cer- 
 tain interests in the invention in consideration 
 of their advancing money to construct a suita- 
 ble machine, &c., in which it is agreed that none 
 of the parties shall part with or dispose of any 
 part of their interest in the invention without 
 the consent and concurrence of all. lb. 
 
 203. An offer before suit to execute all papers 
 necessary to put the inventor in possession of 
 the right to any patent which the advancer 
 might hold, is a sufficient compliance with the 
 condition precedent to a rescission. lb. 
 
 204. Doubtful title. The mere fact that 
 parol proof is necessary to substantiate the title 
 of an assignee of a lease, by showing a waiver 
 of the condition therein against assignment, 
 does not authorize one who has contracted with 
 
CONTRACT. 
 
 173 
 
 such assignee for the purchase of the lease, to 
 resuind his contract and recover hack the money 
 paid tliereon. Ct. App., 1874, Murray y. Harvoay, 
 66 N. Y. (11 Sick.) 337. 
 
 206. Duress. Fear on the part of the maker 
 of a contract, executed at Richmond, Va., in 
 1863, that he shall be drafted into the Confeder- 
 ate service if he remains there, and threats held 
 out to him that unless he executes tlie contract 
 and receives payment of the amoimt stipulated 
 therein in Confederate bills, he will not be per- 
 mitted to leave the Confederacy, is not such 
 duress as will entitle him to have the contract 
 rescinded. Sup. Ct., 1874, Lester v. Union Manf. 
 Co., 1 Hun, 288. 
 
 206. Where it appears that the settlement of 
 a disputed claim, and the mode of payment 
 were parts of a single transaction, and tliat pay- 
 ment was made in pursuance of the agreement, 
 the court cannot rescind as to tlie payment 
 and affirm as to the settlement, even if there 
 were duress. lb. 
 
 207. Neither can it rescind the contract 
 vphere such party has retained the bills so re- 
 ceived by him, without returning or offering to 
 retui-n tliem. lb. 
 
 208. Fraud. A party induced to enter into a 
 contract by fraudulent representations, has tlie 
 riglit to rescind it upon discovery of the fraud, 
 but lie must exercise that right promptly. Sup. 
 Ct., 1876, Rich V. Niagara Savings Bank, 3 Hun, 
 481 ; see Shields v. Same, 3 Hun, 477. He is not, 
 however, bound to active vigilance for the dis- 
 covery of the fraud. Sup. Ct., 1875, Baker v. 
 Level-, 5 Hun, 114. 
 
 209. A laborer, who is induced to contract to 
 work for another for eight months at specified 
 wages by the representations of the latter that 
 he is the owner of a farm worth $7,000, and of 
 other property, may on discovering, after he has 
 commenced work under it, that the wife of liis 
 employer owns tlie farm, rescind the contract 
 and recover for his services already performed, 
 even though such employer owns personal prop- 
 erty worth.more than f 1,000, and is out of debt. 
 Sup. Ct., 1874, Taylor v. Scoville, 8 Hun, 301. 
 
 210. Mistake. A party who has been in- 
 duced to exchange lands with another by fraud- 
 ulent misrepresentations made to him by tlie lat- 
 ter, is entitled to a rescission of •the contract and 
 of the conveyances made in accordance there- 
 with, if the representations made were such as 
 materially to affect the value of the lands to be 
 received in exchange, and were untrue and were 
 believed by such party ; and he can maintain an 
 action for such rescission, whether tlie represen- 
 tations were fraudulently made or not, a mutual 
 mistake being sufficient ground for that relief, 
 where the parties can be restored to their origi- 
 nal positions. Sup. Ct., 1872, Hammond v. Pen- 
 nock, 5 Lans. 368. 
 
 211. A notice served by the party seeking to 
 rescind upon the other, offering to relinquish all 
 claim to the deed from the latter, then in the 
 liands of a third person, and demanding a res- 
 toration of what tlie latter had received or of 
 the avails tliereof, — Held, sufficient to enable him 
 to maintain the suit. lb. 
 
 212. A party seeking to rescind a contract on 
 the ground of mistake should show that he has 
 used due diligence and good faith to avert the 
 consequences of the mistake ; and he will not be 
 relieved where, by his delay and omission of 
 duty, he has caused irreparable mischief to the 
 other party. Com. App., 1872, Thomas v. Bar- 
 tow, 48 N. Y. (3 Sick.) 193. 
 
 213. Misunderstanding. A party who 
 
 trusts to an incompetent person to i/iterpret and 
 explain a written contract, which is carefully 
 read over to him twice, and executed by tlie par- 
 ties in good faith, cannot avoid such contract on 
 the ground that he had been misinformed as to 
 its provisions. Sup. Ct., 1874, Phillip v. Gallant, 
 1 Hun, 528 ; Modified by Ct. App. 
 
 214. Illegality. If a contract, illegal in some 
 of its provisions, is made by an agent, the prin- 
 cipal lias the right to rescind it when it comes to 
 his knowledge. Sup. Ct., 1874, Arnot v. Pittston 
 Sr Elmira Coal Co., 2 Hun, 591. 
 
 215. A coal company, whose agent lias made 
 a contract for the sale of coal, containing a 
 clause void because in restriction of trade, can 
 rescind and sue for the value of the coal sold 
 and delivered under it. lb. 
 
 216. A contract made by or in behalf of a cor- 
 poration, which is not autliorized by its charter, 
 is void, because against public policy ; and the 
 corporation, like an individual under like cir- 
 cumstances, may invoke tlie aid of equity to re- 
 lieve it tlierefrom. Sup. Ct., 1872, Prest. of the 
 Union Bridge Co. v. Troy Sf Lans. R. R. Co., 7 
 Lans. 240. 
 
 217. Although equity will not, in general, in- 
 terfere to grant relief to either party to an ille- 
 gal contract, when they are in pari delicto, yet, 
 when the agreement is against public policy, tlie 
 public interest requires that tlie relief be given, 
 and it is given to the public through the party, 
 and it is not material that the applicant there- 
 for is a particeps criminis. lb. 
 
 218. A lease made by a railroad company 
 with the purpose and effect of extending its 
 road beyond the terminus fixed by its charter, 
 being ultra vires and void as against public pol- 
 icy, will be set aside at tlie instance of one of 
 the parties ; but no further relief will be granted 
 thau the public interest requires, in sucli a case, 
 and payment of reut accrued under the lease 
 will not be enforced. lb. 
 
 219. Imperfect performance. A party 
 who has contracted to give a manufacturer of 
 shirts orders to a specified amount per year, can- 
 not rescind such contract merely because of the 
 imperfection of the goods manufactured, or of a 
 failure to deliver them in time, if the goods re- 
 turned as imperfect are afterwards made satis- 
 factory and accepted, and other goods are or- 
 dered and delivered ; nor because such manu- 
 facturer has taken a partner into liis business. 
 Com. App., 1874, Cramer v. Metz, 67 N. Y. (12 
 Sick.) 659. 
 
 220. Non-performance. A manufacturer 
 who, being bound by contract to consign all the 
 goods he raiglit manufacture to a particular fac- 
 tor for sale on a specified commission, but not 
 bound to continue to manufacture, refused to 
 continue until the factor made a new and dif- 
 ferent agreement with him, has a right to re- 
 scind the latter contract upon the failure of the 
 factor to perform it, and does not thereby make 
 himself liable upon the original contract, that 
 being abrogated by the subsequent one. Com. 
 App., 1872, Hadden v. Dimick, 13 Abb. N. S. 
 135 ; S. C, 48 N. Y. (3 Sick.) 661 ; Eev'g 31 
 How. 196. 
 
 221. Where a lessee of certain lands agreed, in 
 consideration of a certain sum paid liim, to put 
 down a well upon it, of the depth of 650 feet, 
 unless he should strike oil in paying quantities 
 at a lesser depth, and to sell a certain share of 
 all the oil produced ; and failed, after some ef- 
 fort, to find oil, but never sunk a well to the 
 depth named,— ^eW, that the other party was 
 entitled to rescind the contract and recover back 
 
174 
 
 CONTRACT. 
 
 tlie money paid. Com. App., 1873, Lawrence v. 
 VanDeventer, 51 N. Y. (6 Sick.) 676. 
 
 222. A party for wliom work is done under a 
 contract for its completion by a time specified, 
 lias the right to rescind upon the failure of the 
 other party to complete it by that time, and if he 
 does so the other party cannot recover for the 
 work done. N. Y. Supr. Ct., 1875, Dillon v. 
 Masterion, 39 N. Y. Supr. (7 J. & Sp.) 133. 
 
 223. Where time does not, by its terms, ap- 
 pear to be of tlie essence of a contract, in order 
 to bar the rights of the party failing to perform, 
 notice must be given him requiring performance 
 within a reasonable time tlierein specified, and 
 that, in case of default, his rights will be deemed 
 to be abandoned. Ct. App., 1873, Myres v. 
 DeMier, 52 N. Y. (7 Sick.) 647 ; AfE'g S. C, 4 
 Daly, 342. S. P., Dillon v. Masterton, 39 N. Y. 
 Supr. (J. & Sp.) 133. 
 
 224. Undue influence. Whenever one party 
 is so situated as to exercise a controlling in- 
 fluence over the will, conduct and interests of 
 another, contracts then made will be set aside, 
 even upon slight evidence of the improper exer- 
 cise of such influence. Sup. Ct., 1873, Inqersoll 
 V. Roe, 65 Barb. 346. 
 
 225. Unsatisfactory service. An em- 
 ployer, who contracts to employ another as his 
 agent for a year, if he can " fill the place satis- 
 factorily," may terminate the contract when- 
 ever, in his own judgment, the agent fails to fill 
 the place satisfactorily. Sup. Ct., 1872, Tyler 
 V. Ames, 6 Lans. 280. 
 
 226. So held, where the agent became sick 
 and unable to perform his duties as agent. lb. 
 
 227. What amounts to a rescission. A 
 notice to stop, given to one who is doing work 
 and furnishing material for another under a con- 
 tract, operates as a rescission of the contract, so 
 far that he cannot recover the contract price for 
 work or materials furnished after such notice. 
 N. Y. Supr. Ct., 1871, Stephens v. Howe, 34 N. Y. 
 Supr. (2J. &Sp.) 133. 
 
 228. After such a rescission, the remedy of 
 the contractor is by action for damages for 
 breach of the contract, under a proper complaint 
 therefor. lb. 
 
 229. A notice by an employer to one who has 
 contracted to manufacture and deliver to him 
 certain articles, a part in thirty and the remain- 
 der in sixty days, given upon the failure of the 
 latter to deliver the articles first to be delivered, 
 that, unless they are delivered in two days, he 
 shall contract with other parties, operates, after 
 the expiration of the two days, as a rescission of 
 the contract by the employer, so far, at least, as 
 to be a refusal to accept a delivery under it ; 
 and the manufacturer's only remedy is an action 
 for damages for breach of the contract. N. Y. 
 Supr. Ct., 1871, Ackerman v. Voorhies, 33 N. Y. 
 Supr. (1 J. & Sp.) 487. 
 
 230. If the employer afterwards contracts for 
 the articles with the same workman who was 
 engaged by such manufacturer to make them, 
 a delivery under such contract does not enure 
 to the benefit of the latter, so as to enable him 
 to maintain an action for the price. lb. 
 
 231. Where a vendee of goods notified his 
 vendors that the goods delivered did not corres- 
 pond with sample, and the latter, answering by 
 letter, stated that they could not admit the po- 
 sition taken by the former, but, at his request, 
 would send and take the goods away, which 
 they afterward did do, — Beld, that this amounted 
 to a rescission or abandonment of the parol 
 agreement under which the goods were deliv- 
 ered, and the vendors could not afterwards 
 
 retender the goods to their vendee and revive the 
 contract, upon the claim that they merely took 
 the goods for re-examination. Com. App., 1874, 
 ShuUz V. Bradley. 57N. Y. (12 Sick.) 646 ; Rev'g 
 S. C, 4 Daly, 29. 
 
 232. Where a party has been induced by 
 fraudulent representations of another to convey 
 lands to the latter and receive in return a con- 
 veyance of other lands and an assignment of a 
 worthless mortgage, giving also notes for back 
 interest on mortgages against the lands conveyed 
 by him, a letter by his attorney to the defrauder, 
 referring to the transaction as fraudulent and 
 offering him an opportunity to restore an equiv- 
 alent for the property obtained by the fraud, is 
 not an offer to rescind, and a subsequent tender 
 by the other party of a reconveyance of the 
 land so exchanged, without a return of the notes, 
 and a demand for a reconveyance of the land 
 and mortgage received in exchange, does not 
 amount to a rescission. Sup. Ct., 1872, Vanne- 
 man v. Powers, 7 Lans. 181. 
 
 233. A treaty and negotiation for a variation 
 of an agreement, will not amount to a waiver or 
 mutual rescission thereof, unless the circum- 
 stances show an intention of the parties that 
 there should he an absolute abandonment of 
 the same. Ct. App., 1874, Murray v. Harwaii, 56 
 N. Y. (11 Sick.) 337. 
 
 284. In toto. A party who accepts a rescis- 
 sion of a contract, without reserving any claim 
 under it, thereby rescinds the whole, and cannot 
 hold the other bound by it Sup. Ct., 1875, 
 Fullager v. Reville, 3 Hun, 600. 
 
 235. Thus, a vendor of land, who accepts a 
 rescission of the contract of purchase, and takes 
 possession of the premises, cannot recover from 
 the purchaser the arrears of interest or taxes, or 
 the liquidated damages, provided for by the 
 contract, as to which he reserved no claim. lb. 
 
 236. Return of property received. It is 
 only where the party who has been defrauded 
 in the making of a contract wishes, by an action 
 at law, to avoid it for such fraud, and regain the 
 property parted with, or its value, that he is re- 
 quired to return or offer to return to the other 
 party, before commencing his action, whatever 
 he has received under the contract ; nor need he 
 then, if it be of such a character that its return 
 at the trial, or ip the progress of the suit, will 
 leave the other party in as good condition as if it 
 had been done before suit. Sup. Ct., 1873, Har- 
 ris V. Equitable Life Ass. So. of U. S., 3 Hun, 724. 
 
 237. Where the party guilty of the fraud 
 brings an action to eijiforce the contract, the 
 other party need not return what he has re- 
 ceived under it, but may set up such fraud as a 
 complete or a partial defense. lb. 
 
 238. Even though a rescission by the defend- 
 ant were necessary, an offer, after the com- 
 mencement of the action, to allow judgment to 
 be entered for the amount which he might be 
 liable to return, would be a sufiicient compliance 
 with the rule as to a return of the property re- 
 ceived, lb. 
 
 289. One who seeks to rescind a contract for 
 the purchase of the lease of a store and the 
 goods in it, and to have a mortgage given to 
 secure the purchase money declared void, by 
 reason of fraudulent representations in respect 
 to the business, must first restore to the defend- 
 ant the property received from him under the 
 contract. Sup. Ct., 1875, Farrell v. Corbett, 4 
 Hun, 128. 
 
 240. In order to entitle a party to rescind a 
 contract for the purchase of property, on the 
 ground of fraud, he must be able to restore and 
 
CONTRACT. 
 
 175 
 
 return what he himself has received. Where 
 that cannot be done, the fraudulent transaction 
 cannot be annulled. Sup. Ct., 1874, Sinclair v. 
 Neill, 1 Hun, 80. 
 
 241. One who, after the purchase of a store of 
 goods, lease of store, &c., induced by fraudulent 
 representations, sold the greater part of the 
 goods, and collected rents, but upon discovery 
 of tlie fraud, offered to restore the goods then 
 unsold, the fixtures and the leases, and his offer 
 not being accepted, disposed of the balance of 
 the goods, is not entitled to have the contract 
 annulled. lb. 
 
 242. A party to a sale, who has placed himself 
 in a position such that he cannot restore the 
 other substantially to tlie situation occupied by 
 him before the sale, cannot rescind, but must 
 seek liis remedy in damages. Ct. App., 1873, 
 Pullman \. Alley, 63 N. Y. (8 Sick.) 637. 
 
 243.; Where a contract included, as its subject 
 matter, a sale of real estate and the transfer of 
 a business, both connected and mutually de- 
 pendent, — Held, that the transferee could not 
 rescind for fraud in relation to tlie sale of the 
 business, without at tlie same time tendering 
 back the title to tlie real estate received. Ct. 
 App.,- 1874, Dubois v. Hermance, 56 N. Y. (11 
 Siclt) 673. 
 
 244. A purchaser of an individual interest in 
 some oil lands, the conveyance of which entitled 
 him to certificates of stock in a company to be 
 organized, who has received the stock upon the 
 completion of the organization, cannot recover, 
 as upon a rescission of the contract, without 
 tendering back both a conveyance of the lands 
 and the certificates of stock. If such stock was 
 taken after discovery of the fraud alleged as the 
 ground of rescission, it is an affirmance of the 
 contract ; if before, he should restore it at the 
 earliest practicable moment after discovery. Ct. 
 App., 1871, Cobb V. Hatfield, 46 N. Y. (1 Sick.) 
 533. 
 
 245. A legatee under a will, who procures 
 other parties to withdraw all opposition to its 
 admission to probate, by promising to assign to 
 them certain mortgages, which she afterwards 
 assigns in pursuanee of the agreement, cannot 
 maintain an action to rescind the assignment 
 for fraud, because she cannot restore them to 
 the position thev occupied before the will was 
 proven. Sup. Ct., 1875, Bedell v. Bedell, 3 Hun, 
 580. 
 
 246. Where a contract is sought to be re- 
 scinded on the ground of fraud, no tender of the 
 amount received upon it is necessary before 
 action, where the judgment sought and given 
 will effect the same result ; as, where an ac- 
 counting is asked of the avails of the property 
 sold, and judgment for the surplus, after de- 
 ducting the amount paid. Ct. App., 1872, 
 Allerton v. Allerton, 50 N. Y. (5 Sick.) 670. 
 
 247. Iiaches, effect of. One who holds a 
 policy of insurance four months after its receipt 
 by him without examining to see by what com- 
 pany it was issued, cannot then repudiate it and 
 the note given for the premium on discovering 
 that it was issued by a company other than the 
 one with which he supposed he was contracting. 
 Sup. Ct., 1875, Empire State L. Ins. Co. v. Beck- 
 with, 5 Hun, 122. 
 
 248. A party who intends to rescind a con- 
 tract for the purchase of a patent right, and dis- 
 affirm his obligations given tlieretor, on the 
 ground of fraud by which he was induced to 
 enter into it, must act promptly on discovering 
 the fraud ; he cannot hold on to and derive ad- 
 vantage from the use of the patent and then 
 
 resist payment of his obligations. Sup. Ct., 
 1876, Doivs V. Griswold, 4 Hun, 550. 
 
 249. Termination by notice. An agree- 
 ment by several parties to deposit money or 
 securities to a certain amount with a third party, 
 as security for the performance by each of his 
 agreement with tlie others, tlie agreement to be 
 " binding for ten years or until ten days' notice 
 in writing shall be given by any party," and 
 the money or securities to remain in possession 
 of the depositary, " until the expiration of the 
 agreement, in order to give full opportunity for 
 inquiry as to the faitliful observance " of its 
 provisions by the party withdrawing, — Held ter- 
 minable as to all by a notice given by one, and, 
 at the expiration of ten days after notice by such 
 party, he is entitled to a return of his money or 
 securities. N. Y. Supr. Ct., 1872, McCidlough's 
 Lead Co. v. Strong, 35 N. Y. Supr. (3 J. & Sp.) 
 21 ; AfPd, S. C, 56 N. Y. (11 Sick.) 660. 
 
 250. No notice is necessary to terminate a 
 contract for the publication of an advertisement 
 in a newspaper for a specified time ; and if tlie 
 publisher continues to insert it after that time, 
 without any new agreement, he can recover no 
 compensation therefor, even though the adver- 
 tiser takes the paper-and has his attention called 
 thereto. Sup. Ct., 1875, Dake v. Patterson, 6 
 Hun, 558. 
 
 VIII. Peefoemancb, 
 
 251. WTiat sufBcient. The performance 
 of a contract must be such as is required by its 
 true spirit and meaning and the intention of the 
 parties. A substantial performance, from which 
 the other party will derive all the benefits that 
 would have resulted from a literal performance, 
 and in practically tlie same way, is all that is 
 necessary, unless it be expressly stipulated 
 otherwise. Sup. Ct., 1876, Gray v. Gannon, 4 
 Hun, 57. 
 
 252. A party who contracts to erect a build- 
 ing, and complete the whole to the satisfaction 
 ot an architect named, in an action to recover 
 the stipulated price must aver and prove that it 
 was completed to the entire satisfaction of such 
 architect. N. Y. C. P., 1872, Barton v. Herman, 
 11 Abb. N. S. 378. 
 
 253. Payment of some instalments, without 
 requiring the certificate of the architect, is not 
 a waiver of the production of his final certificate 
 that the work is completed to his satisfaction. 
 lb. 
 
 254. Where a building was to be erected 
 " agreeably to the plans and specifications pre- 
 pared for the same by S & S, architects, and 
 also according to directions, and the entire 
 satisfaction of said architects," — Held, that the 
 approval of such architects was decisive between 
 the parties upon the question of performance. 
 Com. App., 1874, Griibe v. Schultheiss, 67 N. Y. 
 (12 Sick.) 669; Aff'g S. C, 4 Daly, 207. 
 
 265. A contract to pay a certain sum to an- 
 other for account of a third party, on the receipt 
 of the money on a draft of such third party 
 conditionally accepted by the drawee, cannot lie 
 enforced against the makers except upon actual 
 receipt of the money, or something equivalent 
 thereto ; and tlie question, whether its payment 
 to one to whom they indorsed it, and who de- 
 ducted from it his own prior claims, was equiv- 
 alent to actual payment, is one for the jury. 
 Sup. Ct., 1875, Hart v. Taylor, 5 Hun, 288. 
 
 256. Defective performance. If a party 
 for whom work is done and materials furnished, 
 under a special contract, for the repair of 
 
176 
 
 CONTRACT. 
 
 macliinery , receives and retains such machinery 
 after the repairs have been made, he cannot re- 
 sist payment of the price agreed upon on the 
 ground that the material used in repairing and 
 completing such macliinery was defective ; but 
 he may reduce the same by recoupment or 
 counterclaim for such defects, if he properly 
 sets them forth in his answer for that purpose. 
 Sup. Ct., 1874, Krom v. Schenck, 47 How. 97 ; 
 S. C, 1 Hun, 171. 
 
 257. Breach. In an action to recover 
 damages for the failure of the defendants to 
 purchase silks in China and ship to plaintiff in 
 New York by a specified time, in compliance 
 with an order given by plaintiffs, — Held, that 
 plaintiffs were not bound to show that a certain 
 vessel shown to liave arrived here from China 
 could have been procured to bring the silk, but 
 it was sufiicient for them to show tliat one or 
 more vessels were loading in Chinese ports, 
 bound for this country, in which the defendants 
 could with proper diUgence, have obtained 
 freight for the silk. Sup. Ct., 1874, Heineman 
 V. Heard, 2 Hun, 324. 
 
 258. Where sheep were let by one party to 
 another, under a written agreement, for two 
 vears, on certain specified terms, and were to be 
 returned in the same condition as when let, 
 if they were pregnant when let, it is no breach 
 of the contract that they were in that condition 
 when returned, although tliat fact affected their 
 value, it being an improper season of the year 
 therefor. Sup. Ct., 1870, Williams v. Frazier, 41 
 How. 428. 
 
 259. Where, upon a sale of a patent right, 
 the purchaser agreed to give $1,000 therefor in 
 case the validity of the patent was not ques- 
 tioned, and if questioned, then to bring an action 
 to test its validity and prosecute the same with 
 reasonable diligence, — Held, that a suit brouglit 
 in the United States Court, and allowed to rest 
 for aperiodof nine years without any tiling being 
 done in it, was not a compliance with the latter 
 condition of the bond. Ct. App., 1872, Beebe v. 
 McKenzie, 47 N. Y. (2 Sick.) 662. 
 
 260. Readiness to perforin. One who 
 has at all times been ready and willing to per- 
 form his contract to furnish certain boxes, is 
 entitled to recover the price thereof from the 
 other contracting party, although prevented from 
 fully performing by the acts and neglects of the 
 latter. Sup. Ct., 1874, Slawson v. Albany Rail- 
 way Co., 1 Hun, 438 ; AfE'd 60 N. Y. (15 Sick.) 606. 
 
 261. In order to entitle the vendor of a speci- 
 fied quantity of jute hemp, contracted to be 
 sold subsequently to arrive in a designated ves- 
 sel, to recover in an action against the purchaser 
 for refusing to receive and pay for such liemp, 
 he must show a delivery or readiness and offer 
 to deliver the whole quantity. Sup. Ct., 1873, 
 Newberry v. Furnival, 46 How. 139 ; Aff'd, S. C, 
 56 N. S. (11 Sick.) 688. 
 
 262. Refusing to receive for some other reason 
 is not a waiver of the objection that the vendor 
 is not ready to deliver the whole, unless the 
 purchaser knew that fact at the time. lb. 
 
 263. In order to entitle a person employed to 
 perform personal services for a definite period, 
 who has been wrongfully discharged before the 
 expiration of that period, to recover wages for 
 the remainder of the term, or damages com- 
 putable upon the rate of such wages, on the 
 ground of tender of performance, he must show 
 his tender and continued offer and readiness to 
 perform the services, and his reasonable effort 
 to obtain other employment. N. Y. C. P., 1873, 
 Polk V. Daly, 14 Abb. N. S. 166 ; 4 Daly, 411. 
 
 264. An actor, who, on being wrongfully dis- 
 charged before the termination of his engage- 
 ment, tenders performance on his part, and then 
 leaves town without returning or offering to re- 
 turn, or attempting to obtain other employment, 
 cannot recover as upon a constructive perform- 
 ance, lb. 
 
 265. Tender of performance. Under a 
 contract for the sale and shipment of coal for 
 cash, to be paid on receipt of the bill of lading, 
 if the purcliaser, on being presented with the 
 bill of lading after sliipment of the coal, claims 
 an account in offset and offers the balance, and 
 that being refused, afterwards offers his check 
 for the full amount, and, it being after banking 
 hours, that also is refused, he is in default and 
 the vendor is discharged. Sup. Ct., 1872, Bass 
 V. White, 7 Lans. 171. 
 
 266. It was the duty of the purchaser to pay 
 the money on presentation of the bill of lading, 
 and an offer to pay it next day is not sufficient. 
 If, upon refusal of his check, he had asked time 
 to procure the money on it, the law would have 
 afforded him a reasonable time for that pur- 
 pose, lb. 
 
 267. Under a contract for the sale of railroad 
 bonds, " indorsed by the State of Alabama," a 
 tender of bonds of the kind named, with an in- 
 dorsement upon each stating that " in pursuance 
 of certain acts of the general assembly of the 
 State of Alabama," naming them, " The State of 
 Alabama hereby indorses this bond, and becomes 
 liable for the payment of principal and interest 
 thereof, tlie A. and C. B. E. Co. having com- 
 plied with the conditions upon which the under- 
 signed Governor of the State of Alabama is 
 required, on the part of the State, to give such 
 indorsement, In witness whereof, the under- 
 signed Governor of the State of Alabama, lias 
 hereunto set his hand, and caused to be hereunto 
 affixed the seal of the State," &c., sealed and 
 signed with the name of the Governor, but some 
 of them without the addition of his title to Iiis 
 signature, — Held sufficient to entitle the seller to 
 recover damages in case the purchaser refuses 
 to receive them. N. S. Supr. Ct, 1875, Levy v. 
 Burgess, 38 N. S. Supr. (6 J. ft Sp.) 431. 
 
 268. The official character of the person 
 signing sufficiently appears in the body of tlie 
 instrument and in the attestation clause, and it 
 would be useless to append it to his signature, 
 lb. 
 
 269. In case of a mutual contract, neither 
 party can recover against the other for breach 
 of its terms, or put him in default, without a 
 tender of performance, or at least proof of a 
 readiness and willingness to perform, and tliat 
 performance has been prevented or expressly 
 waived. Ct. App., 1874, Nelson v. Plimpton Fire 
 Proof E. Co., 55 N. Y. (10 Sick.) 480. 
 
 270. Where one party agreed to furnish, and 
 the other to elevate and store a certain quantity 
 of grain, — Held, that the refusal of the latter to 
 accept an order drawn by the former in favor of 
 a third party for the storage of grain, was no 
 breach, and that the former could not recover 
 damages in an action therefor without proof 
 that he had grain to store, or that he was pre- 
 vented from purchasing it by such refusal. lb. 
 
 271. Eiscuse for non-performance. A 
 party cannot postpone a performance of a con- 
 tract to make and deliver a certain manufactured 
 article within a specified time to the last moment, 
 and then excuse his non-performance by an 
 accident occurring, after lie had ample time for 
 performance. Ct. App., 1875, Booth v. Spuyten 
 Duyvil Rolling Mill Co., 60 N. S. (15 Sick.) 487. 
 
CONTRACT. 
 
 177 
 
 272. Thus, when a contract was made in De- 
 cember, 1867, to furnish a specified quantity of 
 steel caps for rails by the 1st of April, 1868, at 
 the contractor's rolling mill, — Held, that tlie 
 burning of such mill on the 10th of March, 1868, 
 did not excuse performance of the contract. lb. 
 
 273. A contract for the erection of a building 
 by a time certain, upon the ruins of an old 
 structure, necessarily contemplates the removal 
 of tlie debris of the former building ; and, where 
 the contractor, by a subsequent agreement, takes 
 such preparatory work upon himself, he cannot 
 excuse tlie non-performance of the original con- 
 tract within the time limited by delay in the 
 latter work. N. Y. C. P., 1871, Shute v. Hamilton, 
 3 Daly, 462. 
 
 274. A party who contracted to build an organ, 
 and afterwards mortgaged it to the vendee to 
 secure moneys advanced to enable him to com- 
 plete it, payable on demand, cannot excuse his 
 non-performance and recover the contract price 
 on the ground that performance was pre- 
 vented by the vendee by a sale under the mort- 
 gage on default made. Ct. App., 1871, Walleman 
 V. Society of Concord, 45 N. Y. (6 Hand,) 485. 
 
 275. Although a specialty cannot be dis- 
 charged before breach by an executory parol 
 agreement, yet, where a contractor, by writing 
 under seal for the construction of a railroad, was, 
 after part performance, verbally released by the 
 party witli whom he contracted, who thereupon 
 let the work to a third party, — Held, that such 
 contractor could recover for the work done, on 
 the ground that performance had been pre- 
 vented by the employer. Ct. App., 1874, Jenks 
 T. Robertson, 58 N. Y. (13 Sick.) 621. 
 
 276. Where a contract between two parties 
 makes the procuring of a lease of premises by 
 one party and its assignment to the other a con- 
 dition precedent to the liability of the latter, an 
 offer of performance by the former, and an ab- 
 solute refusal of the latter to accept, excuses and 
 supersedes the necessity of a formal tender of 
 an executed assignment of the lease, and ren- 
 ders the latter liable upon the contract. Ct. 
 App., 1874, Blewett v. Baker, 58 N. Y. (13 Sick.) 
 611 ; AfE'g S. C, 37 N. Y. Supr. (5 J. & Sp.) 23. 
 
 277. In case of a contract for the sale and 
 delivery of goods, performance or tender of 
 performance on the part of the vendee is 
 waived and excused by the refusal of the ven- 
 dor to deliver the goods when demanded. N. Y. 
 Supr. Ct., 1873, White v. Talmage, 35 N. Y. Supr. 
 (3 J. & Sp.) 223. 
 
 278. Waiver by payment. Payments made 
 "upon a building contract, after a failure to per- 
 form witliin the time stipulated, do not consti- 
 tute a waiver of such stipulation, or of the 
 owner's claim for damages tliereunder. N. Y. C. 
 P., 1871, Shute \. Hamilton, 3 Daly, 462. 
 
 IX. Vamditt. 
 
 279. Corrupt. An agreement between one lit- 
 igant and the attorney for the other, that such at- 
 torney, in consideration of money paid him, shall 
 be unfaithful to Iiis client, but upon the happen- 
 ing of a certain event shall pay back the money, 
 is corrupt and illegal and will not be enforced. 
 Sup. Ct., 1875, Dake v. Patterson, 5 Hun, 558. 
 
 280. Drawn by attorney of one party. 
 The fact that a contract is drawn by and under 
 the advice of an attorney who at the time is coun- 
 sel for one party, when such fact is known to the 
 other party, does not, in the absence of fraud or 
 unfairness, affect its validity. Ct. App., 1874, 
 Joslin V. Gowee, 56 N. Y. (11 Sick.) 626. 
 
 12 
 
 281. Consideration, want of. Although an 
 agreement to keep alive a policy of insurance 
 on the life of another in consideration of the 
 assignment of a certain interest tlierein is void 
 for want of a sufficient consideration, yet, if the 
 party so contracting enters upon the perform- 
 ance of his contract by paying some of the 
 premiums, he cannot afterwards abandon the 
 contract and permit tlie policy to become for- 
 feited, without notice to the other party, and if 
 he does so he will render himself liable for the 
 value of the policy. Sup. Ct., 1875, Ainsworth v. 
 Backus, 5 Hun, 414. 
 
 282. Fraudulent. A promise by one next of 
 kin to another to pay him a sum of money, 
 made without the knowledge of the other dis- 
 tributees of the estate, and for the purpose of 
 inducing him to acquiesce in a proposed settle- 
 ment and distribution, and to refrain from pro- 
 ceedings against the promisor to compel him to 
 account for property alleged to have been appro- 
 priated by him from the estate, is void, and no 
 action will lie thereon. Ct. App., 1871, Adams v. 
 Outhouse, 45 N. Y. (6 Hand,) 318. 
 
 283. The promisee, in such case, and his 
 assignee, would be estopped from claiming that 
 there was no foundation for the allegation 
 against the promisor, and that all the estate was 
 distributed. lb. 
 
 284. A contract, procured from a party by 
 fraudulent representations, is vitiated from the 
 beginning, and, where neither party has acted 
 upon it, no notice of rescission is necessary, but 
 an objection made as soon as a claim is presented 
 under the contract, is sufficient. N. Y. C. P. Sp. 
 T., 1870, Ripley v. Hazelton, 3 DA\y, 329. 
 
 285. Illegal. A contract entered into in con- 
 travention of the terms and policy of a statute is 
 void, and cannot be enforced by action. Sup. 
 Ct., 1872, Smith v. City of Albany, 7 Lans. 14. 
 
 286. The invalidity of such contract may be 
 set up as a defense in an action thereon, notwith- 
 standing a provision in the statute that such a 
 feontract may be declared void at the instance of 
 a party interested therein, or an action may be 
 maintained to have it declared void. lb. 
 
 287. Money may be contributed here to assist 
 a revolutionary struggle in a foreign country 
 at peace with the government of the United 
 States, without any violation of tlie neutrahty 
 laws, if such money is to be used only in the 
 country where the struggle is going on. N. Y. 
 Supr. Ct, 1871, Bailey v. Belmont, 10 Abb. N. S. 
 270 ; S". C, sub. nom., Bailey v. O'Mahoney, 33 
 N. Y. Supr. (1 J. & Sp.) 239. 
 
 288. An agreement under seal, whereby B 
 acknowledged tlie receipt from D, of $450, to 
 be held by him as trustee for H, promising to 
 invest the money, pay the interest to H an- 
 nually, and on a day certain pay the principal 
 to her as her own property, provided that before 
 that time no proceedings should be instituted 
 against D on account of any alleged injury to 
 tlie person or character of H, either civil or 
 criminal, in her own behalf or in behalf of the 
 people ; shown to have been executed when D 
 was under arrest on a criminal warrant, charg- 
 ing him with the offense of having assisted to 
 procure an abortion on H ; — Held, to be founded 
 upon the illegal consideration of suppressing 
 criminal proceedings, and therefore void ; and 
 H could not maintain an action against B 
 thereon. Sup. Ct., 1865, Bettinger v. Bridenbecker, 
 63 Barb. 395. 
 
 289. Contracts made by persons using a firm 
 name, in which one of the names or tlie addition 
 " and company " or " and Co." does not rcpre- 
 
178 
 
 CONTRACT. 
 
 sent an actual partner, and in the business 
 carried on under such firm name, are illegal ^iind 
 void, being in violation of the statute prohibit- 
 ing the transaction of business under fictitious 
 names. N. Y. Supr. Ct, 1872, Swords v. Owen, 43 
 How. 176; S. C, U N. Y. Supr. (2 J. & Sp.)277. 
 
 290. To bring a contract of sale witliin the 
 provision of the statute relating to the observ- 
 ance of Sunday, the property must be exposed 
 to sale ; a private sale is not within its prohibi- 
 tion. Ct. App., 1874, Eberle v. Mehrbach, 55 
 N. Y. (10 Sick.) 682. 
 
 291. By the act of Congress of July 13th, 1861, 
 and the proclamation of the President of Aug. 
 16 following, a state of war was recognized 
 between the government and the States describ- 
 ed in the latter document ; and all contracts, 
 made after the date last named, between the 
 inhabitants of the territories of the respective 
 belligerents are void. Ct. App., 1870, Woods v. 
 Wilder, 43 N. Y. (4 Hand,) 164. 
 
 292. This rule applies to bills of exchange, as 
 well as to other contracts. lb. 
 
 293. Although a contract contain some provi- 
 sions and promises which are void by statute, 
 yet, if it also embrace other agreements which 
 would be valid if standing alone, they may be 
 enforced. Sup. Ct., 1874, Arnot v. Pittston ^ 
 Elmira Coal Co., 2 Hun, 591. 
 
 294. Upon the question whether a particular 
 provision in a contract is independent or not, the 
 intention of the parties is to be sought from the 
 instrument itself ; and when a party has received 
 a substantial part of the consideration of the cov- 
 enant sought to be enforced against him, and 
 the covenants and consideration in their nature 
 cannot be apportioned, they are to be considered 
 as independent. lb. 
 
 295. Against public policy. A contract to 
 aid in advancing the selling price of stocks by 
 means of fictitious dealings designed to produce 
 a false impression concerning their real value, 
 and thus induce purchases, is against public 
 policy and void, and will not be enforced by thfe 
 courts. Sup. Ct., 1875, Livermore v. Bushnell, 5 
 Hun, 285. 
 
 296. Where a corporation is engaged in an 
 illegal attempt to limit the production and 
 increase the price of salt, all contracts and agree- 
 ments with such corporation entered into by 
 other parties, knowing its object, which tend to 
 aid that object, are illegal and cannot be en- 
 forced. Sup. Ct., 1862, Claneey v. Onondaga Fine 
 Salt Manf. Co., 62 Barb. 895. 
 
 297. Knowledge on the part of such a party 
 that the object of his contract is to increase the 
 price of salt, and that he will derive a benefit 
 therefrom, is sufficient to render it illegal. lb. 
 
 298. An agreement which is intended to, or 
 which in effect does prevent competition at a 
 public auction sale of property, is void in law, as 
 against public policy, and cannot be enforced 
 against a party to it. Sup. Ct., 1872, Wheeler v. 
 Wheeler, 5 Lans. 355. 
 
 299. Thus, an agreement between two parties 
 to a partition suit, that one of them shall bid in 
 the property and divide it with the other, on 
 certain terms as to payment, and the latter shall 
 not bid on it, is void, and the latter cannot main- 
 tain ejectment against the former for the parcel 
 to which he was entitled by such agreement 
 after a purchase under such circumstances. lb. 
 
 300. It is not competent for the parties to 
 ratify such contract by acts subsequent to the 
 sale and purchase, so as to estop them from 
 asserting its invalidity, but the ratification is as 
 nugatory as the contract itself. lb. 
 
 301. An agreement by one of two judgment 
 creditors to pay the other a certain amount in 
 consideration that he will not bid at a foreclos- 
 ure sale of certain of their debtor's real estate, 
 is void, as against public policy. Com. App., 
 1872, Brackett v. Wyman, 48 N. Y. (3 Sick.) 667. 
 
 302. A contract between one about to put in 
 a bid for erecting a school house and a sub-con- 
 tractor, that in case the bid put in by him is 
 accepted the latter shall do a portion of the 
 work at an agreed price, is not against public 
 policy, but is valid and binding between the 
 parties. N. Y. Supr. Ct., 1874, Dvich v. Harri- 
 son, 37 N. Y. Supr. (5 J. & Sp.) 306. 
 
 303. Where the board of auditors of a town 
 were authorized to advertise for sealed proposals 
 for the collection of its taxes and to award the 
 collection to the one offering terms most favor- 
 able to the town, — Held, that an agreement be- 
 tween two bidders that, in case the contract 
 should be awarded to either, both should share 
 equally in the profits or losses, was against 
 public policy and void. Ct. App., 1870, Atcheson 
 v. Mallon, 43 N, Y. (4 Hand,) 147. 
 
 304. An agreement, entered into between the 
 assignee of a chattel mortgage for the benefit of 
 creditors and such creditors, that the former 
 should bid in the property on the foreclosure 
 sale, or, in case any of the creditors should bid 
 off any of the articles, that he should assume 
 their bids, holding all of said property in trust 
 to convert it into mpney and apply upon the 
 debts due such creditors, is not void, as being 
 against public policy, nor as fraudulent; but ' 
 such assignee may be compelled to account for 
 the value of such property. Ct. App., 1871, 
 Bradley \. Kingsley, 43 N. Y. (4 Hand,) 534. 
 
 305. A contract by a manufacturer, to pay to 
 one introducing to his establishment a certain 
 person named, a percentage upon the amount of 
 goods sold him, is not void as against public 
 policy. Com. App., 1873, Richard v. Quintard, 
 51 N. Y. (6 Sick.) 636. 
 
 306. To use influence. A contract by a 
 party to use his influence with public officers to 
 procure a lease for another, is contrary to mor- 
 ality and public policy, and will not be enforced. 
 N. Y. Supr. Ct., Sp. T., 1875, Pease r. Walsh, 39 
 N. Y. Supr. (7 J. & Sp.) 514 ; S. C, 49 How. 269. 
 
 307. The owner of a vessel having failed to 
 charter her to the government by his own 
 efforts, employed others to procure the charter 
 for him. In an action by them for compensa- 
 tion, — Held, that the fact that plaintiffs were 
 closely related to the government agents, and 
 could probably, therefore, influence their action 
 more readily than others, did not forbid their 
 employment, or render the contract ijlegal. Com. 
 App., 1872, Southard v. Boyd, 51 N. Y. (6 Sick.) 
 177. 
 
 308. A contract to pay the expenses of pro- 
 curing the passage of an act by the legislature, 
 is not necessarily illegal ; and in an action 
 thereon, no presumption wiU be indulged that 
 the expenses claimed were illegitimate. Ct. 
 App., 1873, Bohm v. Goldstein, 53 N. Y. (8 Sick.) 
 634. 
 
 309. To recommend nolle prosequi. An 
 agreement with one who is jointly indicted with 
 another, that if he will testify fully and candidly 
 in the criminal prosecution, and in certain civil 
 suits to which he is a party, the prosecuting 
 ofiicer will present the facts to the court with a 
 recommendation that a nolle prosequi be entered 
 against him, is not void as against public policy. . 
 Its object is not to stifle or embarrass a prose- 
 cution, or procure a discontinuance thereof by 
 
CONTRACT. 
 
 179 
 
 improper means, but to bring tlie indictment to 
 trial and procure evidence therefor. Ct. App., 
 1876, Nickelson v. Wilson, 60 N. Y. (16 Sick.) 
 862;Bev'gS. C, 1 Hun, 616. 
 
 810. Marriage brokage. An agreement by 
 a woman, that in consideration of services^ care, 
 diligence and attention to be rendered, and ex- 
 penses to be incurred in aiding to procure a 
 marriage between her and a certain man, and in 
 case she became his wife and outlived him, she 
 will pay the person rendering such services, &c, 
 a specified compensation, though somewhat of 
 the character of a post obit agreement, is not 
 necessarily void on that account ; but it is a 
 marriage brokage contract, and therefore void, 
 as being against public policy, and the promisee 
 cannot recover thereon for either services or 
 advances. Sup. Ct., 1872, Crawford v. Russell, 
 62 Barb. 92. 
 
 311. Not to remove to IT. S. Court. An 
 agreement in advance to oust the courts of the 
 jurisdiction conferred by law, such as one not 
 to remove any suit commenced against the 
 party in a State court to the federal courts, is 
 illegal and void. TJ. S. Sup.Ct., 1876, Home Ins. 
 Co. o/N. Y. V. Morse, 49 How. 314. 
 
 312. A party cannot bind himself in advance 
 by an agreement to forfeit his rights at all times 
 and on all occasions whenever the case may be 
 presented. lb. 
 
 313. Restraint of trade. An agreement by 
 one party not to carry on a retail trade in a 
 particular commodity while another person 
 remains in that trade, which is unlimited as to 
 locality, is against public policy and void. Sup. 
 Ct., 1875, Curtis V. Gokey, 6 Hun, 565. 
 
 814. A contract made on the sale of the good- 
 will of a business, not to engage in a similar 
 business within certain limits for five years, is 
 in restriction of trade, and will be upheld only 
 when it appears that the public interest or con- 
 venience will not be prejudiced thereby. N. Y. 
 Supr. Ct., 1875, Sander v. Hoffman, 39 N. Y. 
 Supr. (7 J. & Sp.) 307. 
 
 315. Such a contract will not be held broken 
 by the seller's engaging in similar business out- 
 side of those limits, and on the solicitation of 
 some of their old customers within those limits, 
 supplying them with goods, or even sending an 
 agent to receive orders from such customers and 
 afterwards filling their orders. lb. 
 
 316. XTncertainty. An agreement, on a sale 
 of a partnership interest, not to engage in the 
 same business again, unless limited to some 
 time and place, is void. N. Y. C. P., 1871, Maier 
 V. Homan, 4 Daly, 168. 
 
 317. A contract to sell and convey a specified 
 piece of land as soon as the purchaser " secures 
 the payment of the " purchase price, is void for 
 uncertainty, because it does not fix the term of 
 credit implied by the use of the term " secures," 
 nor the kind or nature of the security to be 
 given. Sup. Ct., 1866, /'oof v. Webb, 69 Barb. 38. 
 
 318. Under statute of frauds. If one part of 
 an entire contract is void by the statute of frauds, 
 the whole is void. Sup. Ct., 1866, Dow v. Way, 
 64 Barb. 255. 
 
 319. Where a parol contract contains some pro- 
 visions which are required by the statute of 
 frauds to be in writing, and others which are 
 not, the latter cannot be separated from the 
 former, so as to be the basis of a recovery in an 
 action at law, unless they are supported by a 
 separate and distinct consideration. lb. 
 
 320. Thus, where a parol contract is for the 
 sale of a house and lot, and the performance of 
 certain labor in completing the house, for the 
 
 sum of $1,500, the provision for the performance 
 of such labor is void and cannot be enforced, 
 even after performance of the residue of the 
 contract. lb. 
 
 821. To pay debt of another. Where a 
 contractor for buildings draws an order on his 
 employer in favor of a sub-contractor, payable 
 when the latter shall have completed his con- 
 tract written on the same paper, and the same 
 is accepted by the drawee, his agreement is an 
 original one founded on a good consideration, 
 and not one to answer for the debt, default or 
 miscarriage of another ; and the order and ac- 
 ceptance operate as an appropriation of so much 
 of the money to become due the contractor from 
 the employer. Ct. App., 1875, Gallagher v. 
 Nichols, 60 N. Y. (15 Sick.) 438. 
 
 322. Where a father, whose son lived upon 
 and carried on his farm for his benefit, without 
 any agreement for compensation for services, or 
 for boarding hands, or accounting for produce 
 used by the son, procured goods to be sold to 
 his son, upon his own credit and express promise 
 to pay therefor, but to be charged in account to 
 the son for con venience of settlement ;-»-Held, 
 that the undertaking of the father was direct 
 and not collateral, the credit being wholly given 
 to him, and he was liable upon such account. 
 Sup. Ct., 1872, Green v. Disbrow, 7 Lans. 381. 
 
 328. An agreement between plaintiff and de- 
 fendant, that whatever grapes the defendant 
 should seU and deliver to H, in pursuance of any 
 agreement between them, sliould apply on the 
 plaintiff's then account against the defendant, 
 and also upon what he and his men should 
 thereafter trade with the plaintiff on defendant's 
 account, to the extent of the account, is within 
 the statute of frauds and void. Sup. Ct., 1874, 
 Watson V. Parker, 1 Hun, 618. 
 
 324. Not to be performed Tvithin one 
 yeai. A contract to perform work, in consid- 
 eration of payment to be made after the deatli 
 of the employer, is valid under the statute of 
 frauds. Sup. Ct., 1874, Kent v. Kent, 1 Hun, 529. 
 
 325. Memorandum. An entry made by the 
 clerk of the legislative body of a municipal cor- 
 poration, in its minutes or records, of a resolu- 
 tion passed by such body, expressing the terms 
 of a contract, within the power of such body to 
 make on behalf of the corporation, for the per- 
 formance of work by a party named, with the 
 signature of the clerk at the end of the minutes 
 containing such resolution, constitute a note or 
 memorandum in writing, signed by the party to 
 be charged, within the meaning of the statute 
 of frauds, sufficient to take the case out of that 
 statute, and bind the corporation when accepted 
 by the other party, although the work is not to 
 be performed within one year. Sup. Ct., 1872, 
 Arqus Co. V. Mayor, etc., of Albany, 7 Lans. 264 ; 
 Aff'd, 55 N. Y. (10 Sick.) 495. 
 
 326. Payment. Where a controversy arises 
 between the parties to a contract for the sale of 
 a large quantity of wool, as to whether it in- 
 cludes three lots owned by the seller, he having 
 delivered two lots, and paj'ment therefor being 
 refused, a new agreement is made for the deliv- 
 ery of the third lot at the contract price, and 
 payment is thereupon mad^ of a sum equal to 
 the price, of the wool already delivered, as part 
 of the purchase price of the whole, such new 
 contract is valid as a compromise of doubtful 
 and conflicting claims, and, although by parol, 
 the payment takes it out of the statute of frauds. 
 Sup. Ct., 1874, Organ v. Stewart, 1 Hun, 411. 
 Eeversed by Ct. App. 
 
 827. Sale of logs. A contract to deliver to a 
 
180 
 
 CONTRIBUTION— CONVERSION. 
 
 party at a certain place, all the marketable pine 
 saw-logs that could be cut from a certain lot, at a 
 certain price per log, to be measured and count- 
 ed at the place of delivery, is not a contract for 
 the sale of standing timber, and it is not essen- 
 tial to its validity thait it should be in writing. 
 Slip. Ct., 1876, Bm/ce t. Washhum, 4 Hun, 792. 
 
 CONTEIBDTION. 
 
 1. Betmreen co-trespassers. As between 
 several wrong-doers, no contribution can be 
 enforced as to the amount paid by either of 
 them on a. judgment against him for the wrong, 
 except where such person committed the tres- 
 pass for the benefit of another, himself acting 
 innocently and witliout intent to break the law. 
 N. Y. C. P., 1872, WeUe v. Haviland, 42 How. 
 399 ; S. C, 4 Daly, 550. 
 
 2. The OTvner of stocks, left with a broker 
 and wrongfully pledged by him for a private 
 loan, who pays the amount of the loan and 
 receives from tlie pledgee, besides the stock, the 
 note of a third party pledged at the same time, 
 witliout knowledge that it also had been wrong- 
 fully diverted, is entitled to contribution from 
 the maker of the note. Com. App., 1872, 
 Douglass v. Dudley, 48 N. Y. (3 Sick.) 688. 
 
 8. Stockholders of a navigation company 
 organized under ch. 228, Laws of 1852, which 
 makes them individually liable to creditors 
 of the corporation until the stock is all paid 
 in and the required certificate made and filed, 
 are liable to one of their number who has 
 been charged with such a debt for a failure of 
 the president and directors to file such certifi- 
 cate ; and he can maintain an action against 
 them for contribution, even though the proceed- 
 ings for organizing such corporation were de- 
 fective. Com. App., 1874. Aspinwall v. Sacchi, 
 57 N. Y. (12 Sick.) 331 ; Aff'g S. C, 1 Lans. 381. 
 
 CONVERSION. 
 
 I. ■When action lies... 
 XI. When does not lie. 
 
 180 
 182 
 
 1. When action lies. 
 
 1. Certificate of deposit. Where a clerk, 
 having authority to draw checks for his em- 
 ployer, and being about to quit his servioe, drew 
 a check on the employer's bank account for the 
 amount which he supposed the latter owed him, 
 and took a certificate of deposit therefor, hav- 
 ing previously given up his employer's note, and 
 the latter had him arrested and the certificate 
 taken away from him ; — Held, that he could 
 maintain an action for its conversion, although 
 it in fact exceeded the amount due him. Sup. 
 Ct., 1875, Voltz V. Blaekmar, 4 Hun, 139. 
 
 2. Check. A bank check is a chose in action, 
 and like an inland bill of exchange, or a pro- 
 missory note, is property, and may be the sub- 
 ject of a conversien. N. Y. Supr. Ct, 1874, 
 Knapp V. Roehe, 37 N. Y. Supr. (5 J. & Sp.) 395. 
 
 3. Where checks, with the forged indorsement 
 of the owner to whose order they are payable, 
 were cashed in good faith by one party, and by 
 him transferred for value to another, who depos- 
 ited them in a bank by which they were col- 
 lected, the owner can maintain an action for 
 their conversion against all the parties through 
 
 whose hands they have passed, jointly, and 
 without any previous demand. N. Y. C. P., 1871, 
 White V. Sweeny, 4 Daly, 223. 
 
 4. A return to the plaintiff of the paid and 
 canceled checks, after suit brought, will con- 
 stitute no defense to the action. lb. 
 
 5. Contract in -writing. If a party to whom 
 a written contract for the sale and purchase of 
 land has been assigned by the purchaser as col- 
 lateral security for a loan, refuses to deliver it 
 up on payment or tender of the amount due 
 him, an action can be maintained for the con- 
 version thereof. N. Y. Supr. Ct., 1873, Ease- 
 well V. Coursen, 36 N. Y. Supr. (4 J. & Sp.) 459. 
 
 6. Crops. A vendee of lands under parol 
 agreement, who enters thereon, by consent of 
 the vendor, to occupy and work until the latter 
 is ready to convey, is.entitled to the crops raised 
 by him in case he is ejected by his vendor with- 
 out default on his own part, and may maintain 
 conversion therefor against the agents of such 
 vendor who enter and take possession without 
 his consent. Ct. App., 1872, Harris v. Frink, 
 49 N. Y. (4 Sick.) 24; Eev'g S. C, 2 Lans. 35. 
 
 7. Though the contract was void by the stat- 
 ute of frauds, the vendee who had partly per- 
 formed and was not in default, could not be 
 compelled to relinquish any benefit acquired by 
 him from his partial performance, nor could the 
 invalidity of the contract be invoked by the 
 party in default. lb. 
 
 8. Increase of farm stock. Where, by a 
 lease of a farm and stock, the lessee was to pay 
 as rent one-half the products of both, the avails, 
 when any of said property was sold or fit for 
 market, to be equally divided, and was to leave 
 as much worth of stock on the farm as he took, 
 — Held, That the lessor, having taken possession 
 of the stock delivered to the tenant and remain- 
 ing unsold at the end of the term, which then 
 showed an increase in value over the first ap- 
 p»aisal, and having refused to deliver on de- 
 mand, was liable as for a conversion to the 
 amount of the increase in value. Gkat and 
 Hunt, C. C, dissent. Com. App., 1872, Pike v. 
 
 WaUer, 48 N. Y. (3 Sick.) 681. 
 
 9. Proceeds of securities sold. A bank 
 which sells securities, left with its president at 
 the bank, in banking hours and in presence of 
 the cashier, to be exchanged for government 
 bonds, the bank having advertised itself as en- 
 gaged in that business, and credits such proceeds 
 to the individual account of its president, which 
 was at the time largely overdrawn, and refuses 
 on demand to pay over the same to the party 
 who deposited the securities, is liable to him as 
 for the conversion therefor, whether the trans- 
 action was intended to be with the bank or with 
 its president individually. Sup. Ct., 1871, Van 
 Leuvan v. First Nat. Bank of Kingston 6 Lans. 
 373 ; AfE'd, S. C. 54 N. Y. (9 Sick.) 671. 
 
 10. Against carrier. A consigned of goods 
 shipped on account of advances made by him, 
 to whom an invoice is sent stating the consign- 
 ment and manner of shipment, acquires thereby 
 the title to the property as effectually as if the 
 bill of lading were delivered to him ; and a 
 carrier, contracting to transport safely and de- 
 liver the property to him, is chargeable with 
 notice of his rights, and is liable for a conversion 
 if it delivers to another at the direction of the 
 consignor, without the return of its receipt. Ct. 
 App., 1872, Bailey v. Hudson Riv. R. R. Co., 49 
 N. Y. (4 Sick.) 70. 
 
 11. A carrier receiving stolen goods for trans- 
 portation, is bound to deliver them to the owner 
 on demand, and for a refusal so to do is liable 
 
CONVERSION. 
 
 181 
 
 as for a conversion. Ct. App., 1871, Bassett v. 
 Spofford, 45 N. Y. (6 Hand,) 887 ; Rev'g as to 
 this point, S. C, 2 Daly, 432. 
 
 12. The actual delivery of a bill of lading by 
 the carrier to the shipper of such goods, gives it 
 no better right to detain them for its indemnity, 
 than a purchaser in good faith and for value 
 would have had. lb. 
 
 13. What would be the effect on the right of 
 the owner to demand an immediate delivery, 
 where the goods were stowed in the hold of a 
 vessel under other goods, and a breaking up of 
 the cargo would cause delay and expense, in 
 case the carrier should offer to deliver the goods 
 on the return of the vessel from her proposed 
 trip, not decided. lb. 
 
 14. Wliere the baggage-master of a railroad 
 company refused to checlc the baggage of one 
 intending to take passage on the cars, until he 
 had purchased his ticket, but, while he was 
 gone for that purpose, checked tlie trunks and 
 placed them on board the baggage car, and after- 
 wards refused to deliver the checks without pay- 
 ment for extra weight, and upon the passenger's 
 refusing to pay it and demanding his trunks, 
 declined to deliver them for the reason that they 
 were underneath a large amount of other bag- 
 gage and could not be extricated without delay- 
 ing the train, and they were carried to Chicago 
 and there destroyed by fire in the company's 
 warehouse, — Held, that the company was liable 
 for the act of its baggage-master, and could not 
 avail itself of any of the rules as to the liability 
 of common carriers ; and per Gkovee and Peck- 
 ham, J. J., th^ the facts established a conver- 
 sion ; per Folgek and Allen, J. J., tliat the 
 question of conversion, and of the reasonable- 
 ness of the qualification of the refusal to deliver, 
 was a question of fact for the Jury. Church, 
 C. J., and Rapello, J., dissenting, hold that as 
 a matter of law there was no conversion. Ct. 
 App., 1872, WCormick v. Penn. Central R. R. Co., 
 49 N. Y. (4 Sick.) 308. 
 
 15. Against execution plaintiff. An exe- 
 cution plaintiff, who is present at the sale of per- 
 sonal property on his execution, and witnesses 
 a tender made by the debtor to the sheriff of an 
 amount sufficient prima yacie to satisfy the judg- 
 ment and sheriff's fees, and permits the sale to 
 proceed afterwards, is liable for the conversion 
 of the property sold. Sup. Ct., 1871, Tiffany v. 
 St. John, 5 Lans. 153. 
 
 16.x^gainst holder of bill of lading. 
 Where the consignee of a large quantity of 
 grain at B indorsed the bill of lading and insur- 
 ance policy to a bank as security for a loan, and 
 on its arrival, acting for the bank, stored the 
 grain, but took a receipt therefor in his own 
 name, and having made a parol contract for its 
 sale to N, to be delivered on payment, in order 
 to expedite the movement of the grain, but 
 without any intent to part witli the title or pos- 
 session, gave N a written order for its delivery 
 to a railroad company " subject to order," upon 
 the receipt of which the railroad company de- 
 livered N a bill of lading, and he on the strength 
 of such bill procured a draft to be discounted by 
 another bank, which sold the grain ; in an ac- 
 tion by the former bank against the latter for 
 the conversion of such grain, — Held, that by de- 
 livery of the first bill of lading the plaintiff ac- 
 quired a lien upon or title to the grain, and the 
 possession thereof, which entitled it to maintain 
 an action for its conversion ; that the consignee 
 acted as its agent in making a sale thereof ; 
 that his taking a receipt for it in his own name 
 was without authority, and did not divest plain- 
 
 tiff's title ; that the order given by him simply 
 authorized a delivery of the grain to the rail- 
 road company subject to his own order, and did 
 not autliorize the delivery of a bill of lading to 
 N, or a shipment without further directions ; 
 that tlie contract with N being void by the 
 statute of frauds, was not made valid by the 
 delivery to him of such order, nor did such de- 
 livery affect plaintiff's title; and that the de- 
 fendant acquired no title to tlie grain, but upon 
 its refusal to deliver the grain to the plaintiff 
 on demand, it was liable for the conversion. 
 Ct. App., 1875, Mechs. Sr Tr. Bank of Buff. v. 
 Far. ^ Mechs. Nat. Bank of Buff., 60 N. Y. (15 
 Sick.) 40. 
 
 17. The factor's act (ch. 179, Laws of 1850) 
 has no application to such a case, as neither N 
 nor the defendant was the factor or agent of the 
 plaintiff, nor was the railroad company entrusted 
 with the possession for the purposes of sale or 
 security. lb. 
 
 18. Against pledgee. Retaining a pledge 
 after payment of the debt for which it is pledged, 
 is not of itself a conversion, but an uncon- 
 ditional refusal to give it up after a formal de- 
 mand constitutes a conversion at the time of 
 such refusal. Ct. App., 1873, Roberts v. Berdell, 
 61 Barb. 37 ; Aff'd, S. C, 15 Abb. N. S. 177 ; S.' 
 C, 52 N. Y. (7 Sick.) 644. 
 
 19. The sale of a pledge by the pledgee, wltli- 
 out authority, or for non-compliance with a de- 
 mand which he had no right to make, or after a 
 tender of the debt for which it was pledged, is a 
 conversion. Sup. Ct., 1874, Hope v. Lawrence, 1 
 Hun, 317. 
 
 20. A pledge of stock as collateral security 
 for the price of gold purchased for the pledgor, 
 who disobeys a positive order to sell at 217, at 
 which he might have sold, and sells at a lower 
 price after the pledgor has tendered him a sum 
 sufficient to pay the balance of the debt if the 
 gold had been sold at 217, is guilty of a conver- 
 sion of the stock, and is liable for the value 
 thereof after deducting the indebtedness for 
 which it properly stood in pledge. lb. 
 
 21. Even if a sale of stock pledged to secure a 
 loan payable on demand, would be valid without 
 demand and notice of the time and place of 
 sale, when the bailor had absconded so that they 
 were impracticable, yet, a private sale in such 
 case, unless expressly stipulated for, would be 
 wholly unauthorized and render the bailee, at 
 the option of his bailor, liable as for a conver- 
 sion. Ct. App., 1871, Strong v. National Me- 
 chanics' Banking Association, 45 N. Y. (6 Hand,) 
 718. 
 
 22. A sale by a broker, of stock deposited 
 with him as security against loss in a transac- 
 tion undertaken by him for his principal, with- 
 out first giving notice to such principal and de- 
 manding payment of the amount due him on ac- 
 count of such transaction, and a subsequent ne- 
 glect to return such stock on demand by the 
 principal and tender of the amount due him, 
 renders such broker liable as for a conversion of 
 the stock. Sup. Ct., 1872, Lawrence v. Maxwell, 
 6 Lans. 469 ; S. C, 64 Barb. 102 ; Aff'd, S. C, 
 
 ,53 N Y. (8 Sick.) 19. 
 
 28. A right of action for an unauthorized sale 
 of stock is not lost by the silence of the owner 
 on being informed thereof, nor by his receiving 
 a dividend under an assignment in bankruptcy 
 made by the party converting the stock, if it 
 was so received without the intent thereby to 
 extinguish the claim, or knowledge that it would 
 have that effect. Sup. Ct., 1874, Minshall v. 
 Arthur, 2 Hun, 662. 
 
182 
 
 CONVERSION. 
 
 24. Brokers who, after having purchased 
 stocks for a customer upon his promise to fur- 
 nish margins, receive from him for that purpose 
 stolen bonds, without knowledge of the theft, 
 are lialile to the true owner as for a conversion 
 in case tliey sell the same, although, after re- 
 ceiving them, they make payments on the stock 
 so purchased. Ct. App., 1872, Taft v. Chapman, 
 50 N. Y. (5 Sick.) 445. 
 
 25. As to purcliases made upon the credit of 
 such bonds after their receipt, such brokers are 
 entitled to hold them as security against loss, 
 but a sale beyond the amount necessary for 
 such indemnity will be a conversion. lb. 
 
 26. Against sheriff. A sheriff has no right, 
 after a valid sale has been made by the owner 
 of goods held by him under an attachment, to 
 seize or hold them under other attachments 
 which came into his hands subsequently, but he 
 is bound to deliver them up to the purchaser, 
 on payment or tender of the debt for which 
 they were first attached, with costs ; and if he 
 refuses to do so upon tender or offer of such 
 payment, he is liable for their conversion. Sup. 
 Ct., 1872, Klinck v. Kelly, 63 Barb. 622. 
 
 27. Where goods, attached as the property of 
 a person other than the owner, are assigned by 
 sucli owner, while in the hands of the sheriff, to 
 a third party, and after the assignment are 
 seized and sold by virtue of an execution issued 
 upon the judgment in the attachment suit, such 
 seizure and sale are a fresh wrong, which will 
 sustain an action by the assignee of the goods 
 witliout proof of a demand. Com. App., 1871, 
 Hicks V. Cleveland, 48 N. Y. (3 Sick.) 84 ; Rev'g 
 S. C, 39 Barb. 573. 
 
 28. Unauthorized sale. One employed to 
 rescue a cargo of coal from a wreck upon a con- 
 tract, whereby he was to receive 65 per cent, of 
 the value of such coal when delivered on shore, 
 engaged another to perform the work, author- 
 izing him to sell the coal and receive 65 per 
 cent, of the proceeds, the latter knowing that the 
 former was not the owner but having no knowl- 
 edge of his contract ; — Held, that a sale by the 
 latter amounted to a conversion of the coal, for 
 which an action would lie by the owners." N. Y. 
 C. P., 1873, Sun Mut. Ins. Co. v. Talmadge, 4 
 Daly, 539. 
 
 29. Unauthorized use. Where a party who 
 was sued as principal on certain drafts, made 
 his notes payable to the plaintiff in the suit and 
 procured them to be indorsed by a third party 
 and delivered to one who was sued with him as 
 his surety, for the express purpose of enabling 
 him to settle the suit, and the latter having al- 
 ready settled the suit without their knowledge, 
 procured the notes to be indorsed by the payee, 
 and transferred them to a bona Jide holder, — 
 Held, that he was liable as for a conversion. Ct. 
 App., 1872, Deoelin v. Coleman, 50 N. Y. (5 Sick.) 
 531. 
 
 30. Wrongful delivery. A warehouseman, 
 with whom a carrier stores property on which 
 the freight is unpaid, taking a receipt in his own 
 name to secure his lien, is liable as for a conver- 
 sion if he delivers such property to the consignee 
 without the knowledge or consent of the car- 
 rier. Sup. Ct, 1874, Compton v. Shaw, 1 Hun, 
 441. 
 
 n. When does not lib. 
 
 31. Demand and refusal. A bona Jide pur- 
 chaser of personal property at a sheriff's sale, or 
 even from a wrong-doer, is not liable to the 
 owner for a conversion thereof until after a de- 
 
 mand and refusal. Com. App., 1874, Gillet r 
 Roberts, 57 N. Y. (12 Sick.) 28. 
 
 32. A manual taking is not necessary to con- 
 stitute a conversion, but where words are re- 
 lied on for that purpose, they must be uttered 
 under such circumstances, in proximity to the 
 property, as to show a defiance of the owner's 
 right, a determination to exercise dominion and 
 control over the property, and to exclude the 
 owner from the exercise of his rights. lb. 
 
 33. Where a purchaser of a quantity of lum- 
 ber from one who bought at sheriff's sale, upon 
 the same being claimed by a third party at the 
 request of the latter rafted it to a certain place 
 and left it where he could take possession, but 
 on being several times asked to deliver it to the 
 claimant, said that he would do nothing about 
 it, — that he would leave the lumber where it 
 was, — that he did not want any trouble, was 
 willing to do what was right, and would not 
 give it up unless he could get relieved from pay- 
 ing therefor ; — Held, that he was not liable for a 
 conversion of the lumber. lb. 
 
 34. Conversion will not lie for a refusal to de- 
 liver property which came lawfully into defend- 
 ant's hands, but was accidentally lost or destroy- 
 ed before demand made. Com. App., 1872, 
 Salt Springs National Bank v. Wheeler, 48 N. Y. 
 (3 Sick.) 492. 
 
 35. If wood belonging to a railroad company 
 and other wood belonging to individuals, piled 
 on its land, is floated away by a freshet and so 
 intermingled as to be indistinguishable, the 
 owners become tenants in common ; and the 
 company cannot be held liable as for a conver- 
 sion, for gathering up and taking possession of 
 the whole, except upon demand by the other 
 owners on some person authorized to bind the 
 company for their share, and his refusal to de- 
 liver it up, or an actual use and conversion of so 
 much of it as not to leave sufficient for the share 
 of such owners. Sup. Ct., 1872, Moore v. Erie 
 Railway Co., 7 Lans. 39. 
 
 36. Direction and aid. If a mortgagee of a 
 canal boat, after his mortgage becomes due, 
 takes further security from the mortgagor and 
 leaves him in possession, agreeing to allow liim 
 to complete the trip then commenced, the ship- 
 per of the cargo then on board cannot be held 
 guilty of the conversion of the boat, etc., for 
 simply directing the mortgagor to go on and 
 complete his trip, and furnishing him money for 
 expenses. Sup. Ct., 1872, Audas v. Nelson, 64 
 Barb. 362. 
 
 37. Moneys collected. A purchaser by 
 verbalcontract of part of the salary of a public 
 officer, to accrue for the month then just com- 
 menced, would, if such contract was valid, only 
 have a right to share pro rata in the money when 
 received, and consequently he could not, in case 
 the officer collected the whole and paid liim but 
 part of the share so sold, maintain an action 
 against him for the conversion of moneys re- 
 ceived in a fiduciary capacity. N. Y. C. P., 
 1873, Billings T. O'Brien, 45 How. 392 ; S. C, 
 14 Abb. N. S. 238 ; 4 Daly, 556. 
 
 38. Against bailee. An action cannot be 
 sustained against a bailee for hire, for the con- 
 version of wood piled upon his wharf, by mere 
 proof of the agreement to store it there, its deliv- 
 ery, and a subsequent demand by the plaintiff 
 and refusal by the defendant to deliver ; but 
 either some neglect in reference to the care of 
 the property on the part of the bailee, or an ac- 
 tual conversion by him must be shown. Sup. 
 Ct., 1872, Feltman r. Gulf Brewery, 42 How. 488. 
 
 89. This rule is applicable where the prop- 
 
CONYEYANOE— CORPORATION. 
 
 183 
 
 erty is not put into the actual custody of the 
 bailee, that is, in his house or store-house, or 
 into his hands, but is deposited on a public 
 wharf or dock, uninclosed and, consequently, 
 accessible to everybody; but, if entrusted to the 
 personal care of the bailee, he would be liable to 
 the bailor for the value of the property upon 
 proof of a demand and refusal, unless he can 
 explain the reason why he does not deliver it. 
 lb. 
 
 40. Against broker. A broker, carrying 
 stocks for another upon margin, was written 
 by his principal to " sell him 50 or one, as the 
 case might look," if the stock showed a down- 
 ward tendency. He at the time held only 50 
 shares for the latter, but a few days afterwards, 
 by instruction, purchased 50 more. Within a 
 week after the last purchase, the stock declin- 
 ing, he sold the whole 100 shares without con- 
 sulting his principal, — Held, that the sale was 
 authorized, and the broker was not liable as for 
 a conversion. Com. App., 1874, Davis v. Gtminne, 
 67 N. Y. (12 Sick.) 676; Afl'g S. C, 4 Daly, 
 218. 
 
 41. Against carrier. An absolute refusal 
 by a carrier to deliver goods to the owner, on 
 demand made, is ordinarily conclusive evidence 
 of a conversion by such carrier ; but where the 
 refusal is qualified, as, by requiring proof that 
 the party making the demand is the owner, con- 
 version will not lie unless such qualification 
 was, under the circumstances, unreasonable, 
 and that is a question for the jury. Ct. App., 
 IS71, McEntee v. N. J. Steamboat Co., 45 N.Y. 
 (6 Hand,) 84. 
 
 42. A delivery by a carrier to the wrong per- 
 son, whether by innocent mistake or through 
 the fraud of third persons, would render it liable 
 as for a conversion. lb. 
 
 43. Against officer. The sole trustee of a 
 school district, who purchases property at a tax 
 sale made by a collector appointed by himself, 
 who is only an officer de facto, because appointed 
 by parol instead of by writing as required by 
 statute, is not liable therefor in trover. The 
 acts of such officer protect those who appointed 
 him as well as the public. Sup. Ct., 1871, Ham- 
 lin V. Dingman, 5 Lans. 61 ; Kev'g S. C, 41 
 How. 132. 
 
 44. Against pledgee. A pledgee of stocks as 
 collateral to a note, with authority to sell on de- 
 fault of payment of the note, who causes them 
 to be sold at public sale without legal notice to 
 the pledgor and bids them in himself, is not 
 liable as for the conversion thereof. Such a sale 
 is voidable at the election of the pledgor, and if 
 lie elects to treat it as illegal, there is no sale, 
 but the pledgee still holds the stock as a pledge. 
 Sup. Ct., 1872, Bryan v. Baldwin, 7 Lans. 174 ; 
 AfE'd, S. C, 52 N. Y. (7 Sick.) 232. 
 
 45. Receipt of payments. The owner of 
 property placed in the hands of another, cannot 
 maintain an action against the latter for a fraud- 
 ulent conversion thereof, if, knowing that he is 
 paying duties on and selling the property, he 
 keeps silent and receives large payments thereon 
 as for goods sold. Sup. Ct., 1875, Richard v. 
 Wellington, 5 Hun, 181. 
 
 46. Surrender of vouchers. Conversion 
 will not lie in favor of the shipper of goods 
 against a carrier, even in case of an abandon- 
 ment of the voyage, except upon surrender of 
 the bill of lading, or an offer of indemnity against 
 it. N. Y. Supr. Ct., 1870, Shepard v. Heine!cen,2 
 Sweeny, 525. 
 
 47. Violation of contract. Where the 
 owner of a note delivered the same to her hus- 
 
 band, to be surrendered to the maker, on the 
 agreement of the latter, in consideration thereof, 
 to sell him a stock of goods at an agreed price, 
 and the maker after receiving the note refused 
 to carry out his contract, but sold the goods to 
 the husband at a greater price, — Held, that these 
 facts did not constitute a conversion of the note, 
 but simply a breach of the contract with the 
 husband. Sup. Ct., 1876, Powell v. Powell, 8 
 Hun, 413. 
 
 CONVEYANCE. 
 See Deed. 
 
 CONVICTION. 
 See Crimiit^l L^vr. 
 
 COPIES. 
 See Evidence. 
 
 COPYRIGHT. 
 
 1. Unpublished work. Where the right of 
 the author in his unpublished literary work is 
 regarded and treated as a property right by law, 
 common both to this country and the domicil of 
 the author, it is equally within the protection of 
 the law in both places. Ct. App., 1872, Palmer 
 V. De Witt, 47 N. Y. (2 Sick.) 632 ; AfE'g S. C, 
 40 How. 293 ; 2 Sweeny, 530. 
 
 2. Dedication to public. The sale of 
 copies of a musical composition, by a music 
 dealer with whom they were left by the author, 
 after the lapse of the time within which he was 
 directed not to sell them, constitutes a complete 
 dedication thereof to the public ; and an injunc- 
 tion will not lie to restrain subsequent public 
 use of such composition. N. Y. C. P., Sp. T., 
 1872, Wall V. Gordon, 12 Abb. N. S. 349. 
 
 3. The voluntary publication of copies of pic- 
 tures which are not protected by a statutory 
 copyright, gives to any one the right to repro- 
 duce such pictures from such copies. Sup. Ct., 
 Sp. T., 1872, Oertel v. Jacoby, 44 How. 179. 
 
 CORPORATION. 
 
 I. Organization 183 
 
 n. Op the stock 184 
 
 III. Election oi' officers 185 
 
 IV. Powers 185 
 
 V. Liabilities 186 
 
 VI. Actions by and against 188 
 
 VII. Stockholders' liability 189 
 
 VIII. Liability of trustees 191 
 
 IX. Dissolution ; Receiver 193 
 
 I. Organization. 
 
 1. .Validity. A corporation organized under 
 the general laws relating to manufacturing cor- 
 porations, specifying in its charter as its intend- 
 
184 
 
 CORPORATION. 
 
 ed business one which is perfectly legitimate, 
 does not lose its corporate capacity by a subse- 
 quent perversion or abuse of its corporate 
 powers. Sup. Ct., 1862, Clancey v. Onondaga 
 Fine Salt Manf. Co., 62 Barb. 395. 
 
 2. Wliere the object of such a corporation, 
 formed for the expressed purpose of manufac- 
 turing fine salt, was in fact to limit the produc- 
 tion and increase the price of salt, — Held, that 
 such Qbject was illegal, and the parties concerned 
 in it guilty of a misdemeanor. lb. 
 
 3. Persons who have organized, under the act 
 of 1848, relative to the formation of manufac- 
 turing and other corporations, by the filing of a 
 proper certificate, as therein required, and have 
 used and exercised the franchises conferred by 
 that act, made calls upon the stockholders for 
 payment upon their shares, erected a building, 
 and done other corporate acts, are a valid corpora- 
 tion de jure and de facto, as between tlie stock- 
 holders and third persons, so long as the State 
 does not call in question its lawful existence ; 
 and a stockholder cannot question its lawful 
 existence, in an action by it for the amount of 
 his subscription to its stock. Sup. Ct., 1873, 
 Dorris v. Sweeney, 64 Barb. 636. 
 
 4. Benevolent. A corporation cannot be 
 formed under the act for the incorporation of 
 benevolent, &c., societies (ch. 319, laws 1848), 
 except for one or more of the purposes therein 
 named. Sup. Ct. Sp. T., 1871, People ex rel. 
 Blossom V. Nelson, 10 Abb. N. S. 200 ; S. C, 60 
 Barb. 159 ; Kev'd, 11 Abb. N. S. 106 ; but Aff'd 
 by Ct. App., 46 N. Y. (1 Sick.) 477. 
 
 5. An association " to provide a relief fund," 
 and " to aid persons of moderate pecuniary re- 
 sources in obtaining from a respectable in- 
 surance company insurance on their lives, and 
 in maintaining the necessary payments on the 
 same, and to secure to families of persons so in- 
 sured an immediate advance of funds in case of 
 death," is one for business purposes, and can- 
 not be incorporated under that act. lb. 
 
 6. The consent and approbation of a justice 
 of the Supreme Court, required by that act, is 
 but one of tlie conditions precedent to the right 
 to file tlie certificate, and is not conclusive upon 
 either the public or the Secretary of State ; and 
 the latter cannot be compelled to file a certifi- 
 cate for a corporation not within the purview of 
 that act. lb. 
 
 7. Chemical. Whether "the manufacture 
 of preserved fruits and the canning of fruits 
 and other products, and the preserving and 
 keeping of fruits and other articles from decay," 
 come witliin tlie meaning of "chemical pur- 
 poses," so that a corporation therefor can 
 legally be organized under the general manufac- 
 turing act, Query ? Ct. App., 1875, Dorris v. 
 Sweeney, 60 N. Y. (15 Sick.) 463; Aff'g S. C, 
 64 Barb. 636, 
 
 8. To enforce lavrs. The act authorizing 
 incorporations for "social, gymnastic, eestlietic, 
 musical, yachting, hunting, fishing, bathing, or 
 lawful sporting purposes" (ch. 368, Laws 1865), 
 does not authorize the formation of a corpora- 
 tion for the enforcement by action of laws for 
 tlie protection of game and fish ; and a certif- 
 icate of incorporation which expresses such an 
 object is to that extent unauthorized and void. 
 Slip. Ct., 1873, Ancient Sportsman's Club v. 
 Miller, 7 Lans. 412. 
 
 9. Tlie authority given to a corporation by 
 that act to sue and be sued, is subject to the 
 qualification that the suit must relate to some 
 matter within tlie scope of the statute and 
 legitimate purpose of the corporation. lb. 
 
 11. Of the stock. 
 
 10. Preferred. A certificate of stock by the 
 terms of which the holder is " entitled to divi- 
 dends at the rate of 10 per cent, per annum, 
 payable semi-annually out of the net earnings of 
 said company," and also to siiare pro rata with 
 the other stock of the company in any excess of 
 earnings over 10 per cent, per annum," and the 
 payment of dividends as aforesaid is guaranteed, 
 gives the holder of such certificate the right to 
 coUeet and receive such guaranteed 10 per 
 cent, dividend, not merely out of the net earn- 
 ings of the company for the year in which it is 
 agreed to be paid, but out of any future earn- 
 ings. Sup. Ct., 1874, Prouty v. Mich. S. 4r N. 
 Ind. R. E. Co., 1 Hun^665. 
 
 11. Transfer of. As between the parties, the 
 delivery of the certificate of stock, with the 
 usual power of attorney signed by the owner, 
 in blank, indorsed thereon, passes the entire 
 title, legal and equitable of such owner, in the 
 shares, notwithstanding that by the terms of the 
 charter, or by-laws of the corporation, the stock 
 is declared to be transferable only on its books. 
 Sup. Ct., 1873, Smith v. American Coal Co. of 
 Alleghany Co., 7 Lans. 317. S. P. Leitch v. 
 Wells, 48 N. Y. (3 Sick.) 585 ; Rev'g S. C, 48 
 Barb. 637. The same rule applies to transfers 
 of stock of a manufacturing corporation, not- 
 withstanding the provision of the general law on 
 that subject. Ct. App., 1873, Johnson r. Under- 
 hill, 52 N. Y. (7 Sick.) 203. 
 
 Such provisions are intended solely for the 
 protection of the corporation, aild can be waived 
 or asserted at its pleasure, and no effect is given 
 to them except for that purpose. They do not 
 incapacitate the stockholder from parting with 
 his interest. Sup. Ct., 1873, Smith v. Am. Coal 
 Co., 7 Lans. 317. 
 
 12. Where the company had no notice of the 
 transfer of the certificate, they are protected in 
 paying dividends to the original owner, and in 
 admitting him to vote on the stock until transfer 
 on its books. lb. 
 
 13. Where the directors of a corporation at 
 the same meeting declared two dividends, the 
 one payable on the day it was declared, and the 
 other at the option of their agent, — Held, that 
 the second dividend should be paid to the per- 
 sons who were on that day stockholders, al- 
 though no day was definitely named therefor in 
 the resolution, and it was not in fact paid until 
 10 months afterward. Sup. Ct., 1874, Hilly. 
 Newichawanick Co., 48 How. 427. 
 
 14. A person to whom scrip for stock has 
 been delivered, with a transfer thereof, and 
 power of attorney to perfect the transfer, is the 
 legal owner and entitled to the dividend, al- 
 though there has been no transfer on the cor- 
 porate books. lb. 
 
 15. A manufacturing corporation organized 
 under the general law, has no power to make a 
 by-law which will prevent or seriously embar- 
 rass a stockholder in respect to transferring his 
 stock, such as one creating or declaring a lien 
 thereon in its own favor for his Indebtedness to 
 it, or refusing to transfer stock on its books 
 until such indebtedness is paid, unless authorized 
 to do so by its articles of association. Ct. App., 
 1874, Driscoll v. West Bradley ^ Cary Manf. Co., 
 69 N. Y. (14 Sick.) 96 ; Aff'g S. C, 86 N. Y. 
 Supr. (4 J. & Sp.) 488. 
 
 IB. The power given to such corporations 
 to prescribe by by-law the manner in which 
 their stock shall be transferred, does not 
 authorize them to prohibit a transfer, or to 
 
CORPORATION. 
 
 185 
 
 abridge the right, but simply to direct the form 
 aod mode in which it shall be made. lb. 
 
 17. A bona fide purchaser of the stock will be 
 protected against a lien so created, of wliich he 
 has no knowledge or notice, and will not be 
 bound tliereby, but can compel a transfer 
 thereof to himself on tlie books of the corpora- 
 tion, lb. 
 
 18. Rights of assignee. A stock certif- 
 icate issued by a corporation having power to 
 issue it, must be considered as a continuing 
 affirmation by such corporation of the owner- 
 sliip by the person named therein of a specified 
 amount of stock, and of his control over it, 
 until it is withdrawn in some manner recognized 
 by law ; and a purcliaser in good faith has a 
 right to rely upon it as such, and to insist upon 
 the transfer tliereof on the books of the corpora- 
 tion. Com. App., 1874, Holbrook v. N. J. 
 Zinc Co., 57 N. Y. (12 Sick.) 616. 
 
 19. Where a stockholder transfers a certificate 
 witli the usual assignment and power of attor- 
 ney tliereon executed by him in blank, a subse- 
 quent purchaser is not bound to show affirm- 
 atively the title of his immediate grantor. The 
 presumption is that the stock was transferred 
 in the course of business, unless there is evi- 
 dence to tlie contrary. lb. 
 
 20. The title of a purchaser in good faith of an 
 outstanding stock certificate cannot be effected 
 by the pendency of an action in a court of 
 anotlier State, or in a court of this State, of 
 which he had no actual notice, to determine the 
 title of the original holder of the stock. lb. 
 
 21. Inability of assignor. A vendee of the 
 stock of a manufacturing corporation to whom 
 are delivered by his vendor the certificates there- 
 of and a power of attorney to make tlie proper 
 transfer on the books, takes the same subject to 
 all tile burdens and liabilities attaolied to or 
 growing out of them, and the law will imply a 
 duty or obligation from him to his vendor to 
 save the latter from all such burdens and liabili- 
 ties. Hence he will be liable to the latter for 
 any debts thereafter incurred which he is obliged 
 to pay by reasop of his name still remaining as 
 the apparent owner of the stock. Ct. App., 
 1873, Johnson v. Underhill, 52 N. Y. (7 Sick.) 
 203. 
 
 22. Sale of stock for assessment. In 
 order to sustain a sale of stock belonging to a 
 shareholder for the non-payment of an assess- 
 ment against him, all the material steps to 
 authorize such proceeding should be clearly and 
 satisfactorily proven, especially one as important 
 as the giving of notice to liim of the time and 
 place of sale. N. Y. Supr. Ct., Sp. T., 1874, 
 Mitchell V. Vermont Copper Mining Co., 47 How. 
 218. 
 
 23. Where payment by checks of sharehold- 
 ers from whom assessments are due has been 
 requested by the treasurer, a tender of his clieck 
 by one such sliareholder made to the president 
 of the company on the morning of tlie day of 
 sale, and before the sale, with a protest against 
 the sale being made, is sufficient to entitle him 
 to have the sale stopped, especially where no 
 objection is made to the tender because in that 
 shape. lb. 
 
 24. Where the by-laws require sales to be 
 made by an auctioneer to be designated by the 
 directors, a sale by au auctioneer selected 
 by the treasurer is not in compliance there- 
 with, lb. 
 
 25. A sale to the president, individually, after 
 such a tender and protest, will be set aside as 
 being invalid. lb. 
 
 in. Election of officees. 
 
 26. Power of legislature over franchise. 
 
 Tlie principle asserted that althougli the legisla- 
 ture has ever been inflexible in its resolution to 
 preserve the inviolability of private property, 
 yet it has from time to time exercised its discre- 
 tion in moulding the elective franchise of cor- 
 porations into new shapes, the better to adapt it 
 to the changes occasioned by the freedom of our 
 government and the progress of society. N. Y. 
 Supr. Ct., Sp. T., 1871, Groesbeck v. Dunscomb, 
 41 How. 302. 
 
 27. Electors, vrho are. Administrators of 
 a stockholder of a corporation, upon their ap- 
 pointment and acceptance of the trust, become 
 vested, by operation of law, with the legal title 
 of his stock, and have, as representing his estate, 
 all the rights of stockholders, including the right 
 to vote at elections of directors. Sun. Ct., 1872, 
 In Matter of North Shore Staten lalani Ferry Co., 
 63 Barb. 556. 
 
 28. No formal transfer of the stock on the 
 books of the company is necessary to give that 
 right. lb. 
 
 29. The fact that the decedent held the stock 
 as trustee for another, would not affect the right 
 of the administrators to vote, but would the rather 
 make it their duty to do so for the preservation 
 of the trust estate. lb. 
 
 30. Elections, how compelled. The of- 
 ficers of a hospital corporation may be compelled 
 by mandamus to call an election of officers, on 
 relation of a corporator, where through neglect 
 none has been held for a number of years, with- 
 out proof of any previous request. Sup. Ct., Sp. 
 T., 1871, People ex rel. Walker v. Albany Hospital, 
 11 Abb. N. S. 4 ; S. C, 61 Barb. 397. 
 
 31. It is questionable whether the officers can, 
 by amending a by-law, take away the right to 
 an election within sixty days of the annual day, 
 or change the qualification of voters. lb. 
 
 32. Review of. Upon an application for a 
 review by tlie Supreme Court of an election in a 
 private corporation, under 1 E. S. 603, § 5 (1 
 Edm. Stats. 560), notice to the persons who claim 
 to have been elected, and to the corporation, is. 
 sufficient, and notice to all the stockholders is 
 not required. Sup. Ct, Sp. T., 1872, Schoharie 
 Valley R. R. Case, 12 Abb. N. S. 394. 
 
 33. If the directors of a corporation are de- 
 prived of its original stock-book, they may 
 properly open a new one, making it a copy as 
 far as possible, and that may properly be re- 
 ferred to in order to determine who are voters ; 
 but if the old book be produced at the election, 
 that should govern as to the right to vote on 
 stock not subsequently transferred, so far as it 
 differs from the new book ; and an election, the 
 result of which is affected by the rejection of 
 the old book, should be set aside. lb. 
 
 34. The court has power on such review either 
 to order a new election, or to make such order 
 and give such relief in the premises as right and 
 justice may require. lb. 
 
 IV. Powers. 
 
 85. Acts out of jurisdiction. Neither the 
 stockholders nor the directors of a corporation 
 can do a corporate act, out of the jurisdiction 
 creating the corporation, which will have any 
 force to bind those who do not actually partici- 
 pate in it. Ct. App., 1874, Ormsby v. Vermont 
 Copper Mining Co., 56 N. Y. (11 Sick.) 623; 
 Bev'g S. C, 65 Barb. 360. 
 
 36. Acquiring property. A corporation 
 
186 
 
 CORPORATION. 
 
 may acquire title to money or property received 
 on subscriptions to its capital stock before it 
 had a legal existence, and such subscriptions 
 may be in the form of property. Sup. Ct., 1876, 
 American Silk Works v. Salomon, 4 Hun, 135. 
 
 37. By-la'wa. It is a governing rule with 
 corporations that their by-laws must be reason- 
 able, and all which are vexatious, unequal, op- 
 pressive, or manifestly detrimental to the inter- 
 ests of the corporations, are .void. N. Y. C. P., 
 1869, Carlan v. Father Matthew United Benevolent 
 Society, ZHaXjyW. 
 
 38. In a society, the object of which was de- 
 clared to be " to promote temperance among its 
 members and to provide a fund for their aid in 
 case of sickness, distress, disability, or death," 
 a by-law depriving members of the benefits of 
 the society for three months after liquidation of 
 any arrears of dues, — Held, void for reasons 
 above. lb. 
 
 39. Contracts by. Corporations are not so 
 restricted by law that they can perform no act 
 and make no contract not authorized in express 
 language ; but, to a certain extent, they are in- 
 vested with the powers of natural persons for 
 the purposes specified, and may enter into any 
 contract to carry out those purposes which is not 
 in violation of some public law, or contrary to 
 public policy. Sup. Ct., 18'72, Town of Mddle- 
 town V. Rondout and Oswego R. R, Co., 43 How. 481. 
 
 40. Certificate of indebtedness. A rail- 
 road corporation, empowered by its charter to 
 build a road, and to issue bonds to raise money 
 therefor, have power to issue to contractors 
 written acknowledgments of indebtedness for 
 work done, in negotiable form, payable in bonds 
 or money ; and such corporation will be held 
 bound by such an instrument issued by its proper 
 officers, under their signatures and the corporate 
 seal. Sup. Ct, 1873, Pusey v. New Jersey West 
 Line R. R. Co., 14 Abb. N. S. 434. 
 
 41. Guaranty. A railroad company may, 
 for the purpose of promoting interchanges of 
 traffic and business, make a contract with an- 
 other company that all business passing from 
 one to the other shall be done on joint account, 
 and it may as a consideration for such agree- 
 ment, guaranty the payment of interest on the 
 bonds of such other company. Sup. Ct., 1876, 
 Arnot V. Erie Ey. Co., 6 Hun, 608. 
 
 42. If the company making such guaranty, 
 subsequently becomes the owner of the bonds 
 and transfers them for value, it is estopped from 
 denying its liability on its guaranty. lb. 
 
 43. Dividends. A consolidated corporation 
 has no power to declare a dividend, as such, on 
 the stock of one of the companies merged in it, 
 either out of the earnings of that company or 
 out of those of the consolidated company 
 N. Y. Supr. Ct., 1874, Chase v. Vanderbilt, 37 
 N. Y. Supr. (6 J. & Sp.-) 334. 
 
 44. A person who held bonds of a corporation 
 which were by their terms convertible into 
 stock, and surrendered them and received stock 
 prior to the declaration of a (Jividend, was en- 
 titled to share in such dividend ; and the board 
 of directors had no power to limit the payment 
 of the dividend to stockholders holding stock at 
 a day pHor to the issue of his stock, even though 
 they had adopted such day as the close of the 
 fiscal year of the company. Com. App., 1874, 
 Jones V. Terre Haute 4r R- R- R- Co., 57 N. Y. 
 (12 Sick.) 196; Aff'g S. C, 29 Barb. 353. 
 
 45. Increase of capital stock. Chapter 
 883, Laws of 1853 (3 Edm. Stats. 741) amending 
 the act of 1848, for the incorporation of manu- 
 facturing companies, did not authorize the issue 
 
 of any stock in addition to the capital stock 
 stated in the certificate and the increase thereof 
 provided for in the earlier act, but simply au- 
 thorized the receipt, in payment of this stock, of 
 property necessary for the business of the com- 
 panj', at its fair value, instead of cash, as re- 
 quired by sec. 14 of the Act of 1848. Ct. App., 
 1871, Schenck v. Andrews, 46 N. Y. (1 Sick.) 589 
 
 46. Expulsion of members. A corpor- 
 ation whose by-laws provide that no member 
 shall be expelled without notice to appear and 
 show cause, and that, for a particular offense, 
 the punishment shall be expulsion or a fine, as 
 the society may determine, cannot lawfully ex- 
 pel a member without notice and an oppor- 
 tunity to defend himself ; nor can it expel him 
 after fining him for the same offense. Sup. Ct., 
 1875, People ex rel. Doyle v. N. Y. Benevolent So. 
 of Operative Masons, 3 Hun, 361. 
 
 47. By-laws which forbid a member to work 
 at his trade at such prices as he chooses to ac- 
 cept, and compel him to join in a " strike," un- 
 der a penalty, are void as against public policy, 
 and cannot justify an expulsion. lb. 
 
 48. A corporation which has adopted the rules 
 in Cushing's manual for the government of all 
 debates of its members, cannot expel a member, 
 and thus deprive him of his interest in its prop- 
 erty, for offensive words spoken in debate, un- 
 less notice was taken of them and the course 
 pointed out by Cushing's manual in such cases 
 was adopted at the time. Sup. Ct.. Sp. T., 1873, 
 People ex rel. Godwin v. American Institute, 44 
 How. 468. 
 
 49. Kind of manufacture. A corporation 
 declared by its articles of association to be or- 
 ganized for the purpose of manufacturing every 
 variety of fire arms and other implements of 
 war applicable to the use of fire arms, and all 
 kinds of machinery adapted to the construction 
 thereof, and otherwise, cannot under those ar- 
 ticles contract to manufacture and deliver cir- 
 cular railroad locks. N. Y. Supr. Ct., 1875, 
 
 Whitney Arms Co. v. Barlow, 38 N. Y. Supr. (6 
 J. & Sp.) 554. 
 
 50. Mortgage. The necessiiy intended in that 
 provision of theEevised Statutes (lEdm. Stats., 
 557, § 3), regulating the powers of corporations, 
 is not an absolute one ; but includes such things 
 as are implied in the principal grant, or are ap- 
 purtenant thereto, or convenient and ordinarily 
 exercised therewith. N. Y. C. P., 1870, Central 
 Gold Mining Co. v. Piatt, 3 Daly, 263. 
 
 51. A manufacturing corporation, organized 
 under the general law of 1848, (8 Edm, Stats., 
 783), may, since the amendment to that act of 
 1864 (6 Edm. Stats., 299), execute a valid mort- 
 gage or trust deed of its lands, to secure future 
 issues of its bonds for indebtedness not existing 
 at the time of executing it, such being the com- 
 mon and ordinary mode of raising funds for the 
 use of the corporation. lb. 
 
 52. Supervision of court. The Supreme 
 Court has power to order a strict examination 
 to be made by a referee of all the affairs of a 
 moneyed corporation, for the purpose of ascer- 
 taining the safety of its investments and the 
 prudence of its management ; that court now 
 possessing all the powers in that respect which 
 were formerly possessed by the chancellor and 
 master in Chancery. Sup. Ct., Sp. T., 1875, In 
 Matter of McConihey. Exchange Bank of Lansing- 
 burgh, 49 How. 422. 
 
 V. LlABIMTIBS. 
 
 63, Acts of officers, when bound by. 
 
CORPORATION. 
 
 187 
 
 Under by-laws and a general resolution author- 
 izing and directing certificates of stock to be 
 signed by tiie president and treasurer of tlie 
 company, and making no restrictions as to stock 
 issued to those officers themselves, it is bound 
 by the acts of those officers in issuing certificates 
 of stock in conformity to such by-laws and reso- 
 lution, although they are in fact fraudulently 
 issued. Sup. Ct., 1871, Titus v. Prest., etc., Cheat 
 Western Turnpike Road, 5 Lans. 250. 
 
 54. The company would therefore be liable 
 for money advanced by a third party, in good 
 faith and without notice, to its treasurer, upon 
 certificates of stock so issued to the treasurer 
 himself. lb. 
 
 55. The president and treasurer of a cor- 
 poration, which has issued all the stock it is 
 authorized to, leaving some subscribers therefor 
 at par unsupplied, cannot make th^ company 
 their debtor by purchasing in stock at a discount 
 and supplying such subscribers, and then charg- 
 ing the same over to the corporation at par. 
 Sup. Ct., 1875, East New York ^ Jam. R. R. Co., 
 V. Elmore, 5 Hun, 214. 
 
 56. A manufacturing company which has au- 
 thorized its president and vice-president to em- 
 ploy such persons as in their judgment are 
 necessary in and about its business, and has voted 
 to enter into the business of manufacturing a 
 newly invented article, is liable to an attorney 
 for services rendered in advising about such, 
 article and procuring a patent therefor, under 
 employment by such officers. Sup. Ct., 1874, 
 PoHok V. Shultze, 1 Hun, 320. 
 
 57. Where the by-laws of a manufacturing 
 corporation do not confer upon the president or 
 secretary, or both combined, any power to issue 
 drafts, or to negotiate drafts drawn by them in 
 the name of the company, such company is not 
 liable on drafts so drawn in its name, except on 
 proof, either — 1. That a general or particular 
 authority was conferred on them or either of 
 them by the board of trustees ; or, 2. That the 
 conduct of the company was sucli as to create a 
 well founded belief that such authority had 
 
 • been delegated ; or, 3. That the acts, though 
 unauthorized, were subsequently ratified by the 
 board. N. T. Supr. Ct., 1870, Dabney v. Stevens, 
 10 Abb. N. S. 39 ; S. C, 2 Sweeny, 415 ; AfE'd, 
 46 N. Y. (1 Sick.) 681. 
 
 68. Such a delegation of authority or subse- 
 quent ratification may be either expressed or 
 implied ; but a subsequent ratification will not 
 be inferred, in the absence of'proof that tlie 
 board had notice of the unauthorized acts. lb. 
 
 59. A person dealing with an officer of a cor- 
 poration whose duties are regulated by the by- 
 laws, is chargeable with notice of his authority, 
 and of the restrictions upon it. lb. 
 
 60. The executive officer of a department of a 
 corporation, having the care and management 
 of its business under the direction of a general 
 board of managers, may, in the absence of any 
 restriction on his general powers, bind it by ac- 
 cepting a draft in its business and its behalf. 
 Sup. Ct., 1875, Hascall v. Life Asso. of America, 
 5 Hun, 151. 
 
 61. Writing the word "accepted" with his 
 name and the name of his office upon it, is suffi- 
 cient to bind it, even though the draft be ad- 
 dressed to it by a wrong name. lb. 
 
 62. A corporation authorized to make loans 
 on certain securities, and having received and 
 approved such securities, but postponed payment 
 of the money for its own convenience to a future 
 day, may bind itself by accepting a draft for 
 the amount payable on such future day. lb. 
 
 63. The president of a railroad company has 
 not, by virtue of that office, power to bind the 
 company by a contract to pay a party for pro- 
 curing contractors to enter into contracts for the 
 construction of the road. Sup. Ct., 1874, Risley 
 V. Indianapolis, B. ^ W. R. Co., 1 Hun, 202 ; 
 Bev'd by Ct. App. 
 
 64. Neither can the company be held to have 
 ratified or confirmed such contract by acts 
 done without knowledge or information of its 
 existence ; or by acts confirming another con- 
 tract ; or by acts of the president himself. lb. 
 
 65. Where the president of the company, 
 after the failure of the contractor to perform, 
 took an assignment of his contract, and went on 
 to complete the road, — Held, that he acted as 
 trustee of the corporation and its stockholders, 
 and not as the contractor's assignee, and the 
 company would not be liable to other parties for 
 amounts to be paid upon performance of his con- 
 tract by the contractor. lb. 
 
 66. Contracts. Neither the corporate seal 
 nor a formal resolution of the managers is neces- 
 sary to the making of a valid contract by a cor- 
 poration. Ct. App., 1875, Hoag v. Lament, 60 
 N. Y. (15 Sick.) 196. 
 
 67. An agreement, made by a corporation 
 through its authorized agents, for the sale of its 
 lands, is valid without the use of the common 
 seal, and the fact that such agents attached their 
 private seals to it cannot affect its validity. 
 Brooklyn City Ct., Sp. T., 1871, Congregation 
 Beth Elohim v. Central Presb. Church, 10 Abb. 
 N. S., 484. 
 
 68. Lease by officers. Where a corporation 
 gives discretionary power to a committee of 
 three of its directors to execute and deliver a 
 lease of its corporate property, and all have 
 agreed upon the terms of such lease and ordered 
 it engrossed for execution, the signature of two 
 of the committee in the absence of the third, 
 and affixing of the corporate seal by them, is 
 sufficient execution to bind the corporation ; es- 
 pecially, when one of the persons so executing 
 is president of the company and custodian of its 
 seal. Sup. Ct., 1872, Prest. of the Union Bridge 
 Co. V. Troy %■ Lans. R. R. Co., 7 Lans. 240. 
 
 69. It seems that if the corporate seal is prop- 
 erly affixed to such an instrument, that is a 
 sufficient execution, without the signature of 
 either member of such committee. lb. 
 
 70. If the committee, being restricted to a lease 
 for a certain term of years, execute one for an 
 indefinite term, and the company afterward suffer 
 the lessee to act upon it to its damage, and re- 
 ceive rent and otherwise recognize its existence, 
 they thereby ratify it, lb. 
 
 71. Officer's aalaiy. In the absence of any 
 express authority by the charter or by-laws, the 
 executive committee of a street railroad com- 
 pany cannot bind the company by a contract 
 with an individual, that he, " except for a good 
 and sufficient cause sliown for his removal, 
 should have the permanent and supreme control 
 in the management of the company's road and 
 interests," at a salary of $6,000 per annum, so 
 as to entitle him to a continuance of his salary 
 after the expiration of one year, and after lie lias 
 been removed by the directors under a by-law 
 requiring the superintendent to be annually 
 elected, and to hold at the pleasure of the board. 
 Whether the board of directors, or the corpora- 
 tion itself could make such a contract, query? 
 N. Y. Supr. Ct., 1872, Queen v. Second Av. R. R. 
 Co., 44 How. 281 ; S. C, 35 N. Y. Supr. (3 J. &. 
 Sp.) 154. 
 
 72. The subsequent election of such person to 
 
188 
 
 CORPORATION. 
 
 the oflSce of vice-president of the company, and 
 the passage of a resolution by the board of direc- 
 tors " that the vice-president perform the duties 
 of general superintendent of the road," — and 
 have a salary of $6,000, per annum, and his ac- 
 quiescence therein, shown by his entering upon 
 the duties of those oflSces without further con- 
 tract, constituted a new contract, in some re- 
 spects inconsistent with the prior one, and so far 
 as inconsistent a substitute therefor ; and he be- 
 ing thereby made an officer of the company be- 
 came liable to be removed at the pleasure of the 
 board in accordance with the by-laws, and could 
 not claim his salary for the full year during 
 which lie was removed, under the prior con- 
 tract, lb. 
 
 73. It is to be assumed that the salary vo- 
 ted to the president of a corporation is provid- 
 ed as compensation for the services he is ex- 
 pected to render the company ; and when, with 
 his assent and co-operation the cotnpany has 
 disposed of all its property and business, so that 
 he has no further duty to perform or service to 
 render, the contract as to salary must be deemed 
 dissolved by the act and consent of the parties, 
 and the corporation released therefrom, although 
 it may not be dissolved. Com. App., 1872, Lmg 
 Island Ferry Co. v. TerbeU, 48 N. Y. (3 Sick.) 427. 
 
 74. Relief to vridovrs of members. A 
 corporation formed " for the general purposes of 
 
 > improvement and welfare of the members and 
 others, — and for the particular object of mutual 
 relief of the members — in times of sickness and 
 distress," can extend its benefits to the families 
 of its members, and bind itself by its articles to 
 pay a montlily sum to the widows of members. 
 Sup. Ct, 1876, Gundlach v. Germania Mechs. 
 Asso., 4 Hun, 339. 
 
 75. A revision of the article by which suoh 
 provision is made, after the death of a member 
 whose widow is entitled to the benefits thereof, 
 cannot affect her right to receive or recover the 
 monthly allowance given by the original article. 
 lb. 
 
 VI. Actions et and against. 
 
 76. In general. Without authority from a 
 corporation through its de facto officers, no per- 
 son or persons can maintain an action in its 
 name. N. Y. Supr. Ct., Sp. T., 1873, Hudson Riv. 
 etc. R. R. Co. V. Kay, 14 Abb. N. S. 191. 
 
 77. Persons named as directors in the origi- 
 nal articles of incorporation, cannot, without 
 authority from the corporation, maintain an 
 action against the de facto officers ostensibly to 
 enforce a claim in iavor of the company, but 
 
 . really for the purpose of trj'ing the defendant's 
 title to their offices. lb. 
 
 78. Action to compel issue of stock. 
 A subscriber to the stock of a corporation, who 
 has not paid therefor according to the terms of 
 his subscription, cannot maintain an action 
 against the company to compel it to issue to liim 
 certificates for such stock, even thougli he lias 
 defeated a recovery by the company of the 
 unpaid instalments by setting up the defense of 
 the statute of limitations. Sup. Ct, 1871, John- 
 son V. Albany ^Sf Susq. R. R. Co., 6 Lans. 222 ; 
 Afi'd, S. C, 54 N. Y. (9 Sick.) 416 ; Rev'g S. C, 
 40 How. 193. 
 
 79. Neither can he, in such an action compel 
 the issue to him of stock to the amount of the 
 instalments he has paid on his subscription for 
 a larger number of shares, where he has not 
 only not tendered but has expressly refused to 
 pay the unpaid balance thereon. lb. 
 
 80. To compel declaration of dividends. 
 
 An action will not lie in equity against a con- 
 sohdated corporation to compel it to declare a 
 dividend of earnings made by one of the com- 
 panies merged in it prior to the consolidation, 
 or dividends on the stock of such company out 
 of the earnings of the consolidated one ; nor will 
 such an action lie against the directors of the, 
 consolidated company. N. Y. Supr. Ct., 1874 
 Chase v. Vanderbilt, 37 N. Y. Supr. (6 J. & Sp.) 
 334. S. P. Webb v. Vanderbilt, 89 N. Y. Supr. 
 (7J.&Sp.)4. 
 
 81. On contract. A company formed by 
 the consolidation of two or more old companies 
 is, as far as the creditors of one of the original 
 companies is concerned, the successor of each of 
 such old companies, but, in respect to their 
 property, it is a new and independent company, 
 and such creditors have no claim against it upon 
 their original contracts, but only by virtue of its 
 assumption of the obligations of the old com- 
 panies. Ct. App., 1873, Prouty v. Lake Shore 
 #• Mich. S. Ry. Co., 52 N. Y. (7 Sick.) 363. 
 
 82. In so far as devolves upon the officers of 
 the new company of managing the property 
 formerly belonging to any one of sucli old com- 
 panies, they occupy, as to creditors thereof, the 
 position of successors to the officers of such old 
 company and are bound by all proceedings had 
 against them ; but other properties which have 
 come under their charge from the other old com- 
 panies, not originally Uable to such creditors, 
 cannot be subjected to such proceedings by sub- 
 stituting the new company and its officers as 
 defendants in the action. lb. 
 
 83. Whether judgment can be rendered 
 against the corporation originally sued, after 
 such consolidation, quei-y f Sup. Ct., 1874, Prouty 
 V. Mich. S. 4r N. Ind. R. R. Co., 1 Hun, 655. 
 
 84. Abatement of. An action against a 
 corporation abates upon its dissolution, and can- 
 not be continued to judgment without an order 
 substituting or bringing in its receiver or other 
 representative or successor in interest. A judg- 
 ment rendered against the corporation itself 
 after the appointment of a receiver, without 
 substituting or bringing him in as a party, is 
 void as against him. Ct. App., 1874, McCulloch 
 V. Norwood, 58 N. Y. (13 Sick.) 562 ; Rev'g 
 S. C, 36 N. Y. Supr. (4 J. & Sp.) 180. 
 
 85. Action by stockholder. A stock- 
 holder of a manufacturing corporation can 
 maintain an action against it, on an indebtedness 
 due from it to him, even after it has ceased to 
 do business, and has turned over its property to 
 a new company organized under the same name 
 and for the same purpose. Sup. Ct., 1874, Cary 
 V. Schoharie Valley Machine Co., 2 Hun, 110. 
 
 86. — to forfeit franchise. A stockholder 
 of a mutual life insurance company formed 
 under ch. 463, Laws of 1853 (4 Edra. Stats. 216), 
 cannot maintain an action against the company, 
 to have its franchises declared forfeited, and to 
 restrain their exercise, and to have a receiver 
 appointed, on the ground that the company has 
 made a false annual statement and has been 
 guilty of other violations of said act. Sup. Ct., 
 Sp. T., 1873, Fisher v. World Mut. Life Ins. Co., 
 47 How. 451 ; S. C. 15 Abb. N. S. 363. 
 
 87. The provision of tlie Revised Statutes 
 authorizing such actions against corporations 
 (2 Edm. Stats. 484), do not apply to violations 
 of the act of 1853 by companies organized under 
 it, being expressly excluded by the exception 
 contained in sec. 11 of that act. lb. 
 
 88. All violations of that act are specially 
 pi:ovided for by the act itself, and the remedies 
 
CORPORATION. 
 
 189 
 
 therein provided are exclusive. The stock- 
 holder's remedy for any such violations in re- 
 spect to annual statements or other matters is to 
 cause a suit to be brought by the district at- 
 torney of the proper county for the penalty 
 provided in sec. 18 of that act. lb. 
 
 89. — to set aside acts of directors. A 
 stockholder in a corporation can maintain an 
 action, in behalf of himself and other stock- 
 holders similarly situated, against such corpora- 
 tion and its directors, to set aside and enjoin 
 transactions done by such directors, in tlie name 
 of the corporation, but for their own personal gain 
 and benefit, and in fraud of the riglits of the plain- 
 tiffs and other bona fide stockliolders, when the 
 directors have been requested to bring such 
 action and have refused. Sup. Ct., 1875, Gray 
 V. N. Y. ^ Va. Steamship Co., 3 Hun, 383. 
 
 90. A purchaser of the corporate property, 
 charged to have conspired with the directors in 
 such transactions, may properly be made a 
 party to the suit, witliout offering to return to 
 him what he has paid tlierefor, where the fruits 
 of the transaction liave never come to the hands 
 of the plaintiffs. lb. 
 
 91. — to set aside lease. A lease executed 
 by one gas company, organized under the gen- 
 eral law relative to manufacturing corporations, 
 to another company, of all its works and prop- 
 erty, for five years, with a privilege of renewal 
 for five years longer, in effect suspends the 
 ordinary business of the lessor for more tlian 
 one year, and is invalid as against stockholders 
 not consenting to it ; and one such stockliolder 
 may maintain an action in behalf of himself and 
 other stockholders similarly situated, to set aside 
 such lease. Sup. Ct., 1871, Copeland v. Citizens 
 Gns Liijht Co., 61 Barb, 60. 
 
 92. — for misappropriation by officers. 
 An action for a conversion or misappropriation 
 of corporate property by the trustees or direc- 
 tors of a corporation should properly be brought 
 by the corporation itself, but on its refusal to do 
 80 upon application of stockholders, such an ac- 
 tion may be brought by a stockholder for the 
 benefit of liimself and others similarly situated, 
 and in tliat case the corporation should be made 
 defendant. Sup. Ct., Sp. T., 1875, Greaves v. 
 Gewge, 49 How. 79. S. P. Allen v. N. J. Southern 
 Ry. Go., id. 14. 
 
 93. — to restrain issue of bonds, etc. An 
 action to restrain a corporation from issuing 
 bonds and giving a mortgage to secure them, 
 cannot be sustained by a common stockholder, 
 if such corporation has power by law to incur 
 the debt and give such securities. Sup. Ct. Cir., 
 1871, Thompson v. The Erie Railway Co., 42 How. 
 68 ; S. C. 11 Abb. N. S. 188. 
 
 94. A corporation is in no sense a trustee for 
 holders of its preferred stock, and they have no 
 special control over its management ; nor can 
 they maintain such an action, where it does not 
 appear that they will sustain injury by reason 
 of such acts. lb. 
 
 95. — transfer of property. A holder of a 
 large quantity of stock in a land and mining 
 company, organized under the laws of this State, 
 can maintain an action against the company, to 
 restrain it from transferring its property, con- 
 sisting mostly of land, to a new company organ- 
 ized in California, on the ground that such trans- 
 fer is to be made with intent to render his stock 
 worthless and deprive him of all control of the 
 company ; and in such action a temporary in- 
 junction may properly be granted and a receiver 
 be appointed. Sup. Ct., 1875, Kelly v. Mariposa 
 Land and Mining Co., 4 Hun, 632. 
 
 VII. Stockholbbes liability. 
 
 96. 'Who liable as. One who with others 
 signed an agreement to unite in the formation of 
 a stock company, and to take a specified number 
 of shares, and subsequently signed tlie certificate 
 of incorporation required by law, is liable, as a 
 stockholder, to the receiver of tlie company for 
 tlie unpaid portion of his subscription to the 
 stock. Slip. Ct., 1875, Dorris v. French, 4 Hun, 
 292. If lie does not sign the certificate of incor- 
 poration, nor subscribe for stock after the organ- 
 ization, he does not become a stockholder, nor 
 is he liable on sucli agreement. Sup. Ct., 1873, 
 Dorris v. Sweeney, 64 Barb. 636. 
 
 97. Subscription without payment of ten 
 per cent. No subscription to the stock of a 
 railroad corporation, organized under the gen- 
 eral law, made after the corporation was formed, 
 is valid or binding until at least 10 per cent, of 
 the amount subscribed lias been paid ; nor will 
 a recital in the subscription paper that 10 per 
 cent, has been paid estop the subscriber from de- 
 nying the payment in an action on his subscrip- 
 tion. Com. App., 1874, N. Y. Sf Oswego M. R. R. 
 Co. V. Van Horn, 57 N. Y. (12 Sick.) 473. 
 
 98. Such a subscription cannot be rendered 
 valid by a subsequent statute. lb. 
 
 99. Stock not paid up. One who subscrib- 
 ed for stock in a corporation formed under cli. 
 40, Laws of 1848, and made payments on account 
 thereof, is liable as*a stockholder, under sec. 10 of 
 that act, for goods received and used in tlie busi- 
 ness, its capital stock not being paid up ; and lie 
 cannot, in a suit therefor, question the certificate 
 of incorporation as to any irregularities. Sup. 
 Ct., 1875, Perkins v. Hatch, 4 Hun, 187. 
 
 100. The right of a creditor of a corporation to 
 sue a stockholder, whose stock is unpaid for, 
 after the return of one execution against tlie cor- 
 poration unsatisfied, is subordinate to the right 
 of tlie directors to compromise their claim against 
 such stockholder or to forfeit his stock. Sup. Ct., 
 1862, Mills V. Stewart, 62 Barb. 444. 
 
 101. To render a person liable as a stockholder 
 he must be such at the time t)ie suit is com- 
 menced; and his liability ceases when the direc- 
 tors, in good faith and in conformity to tlieir 
 charter, declare his stock forfeited. lb. 
 
 102. Stock paid in property. Under the 
 provisions of ch. 333, Laws of 1853, amendatory 
 of the general act for the organization of manu- 
 facturing and other corporations, which author- 
 izes the trustees of such a corporation to pur- 
 cliase property necessary for their business, and 
 issue stock to the amount of the value thereof in 
 payment, the trustees are the judges both of the 
 necessity for and the value of the property ; and 
 a mere mistake or error of judgment on their 
 part in respect to such necessity or value, will 
 not subject the holder of stock so issued to tlie 
 liability imposed upon holders of stock not fully 
 paid, if the purchase was made in good faith and 
 not in evasion of the original act. Com. App., 
 1874, Schenck v. Andrews, 57 N. Y. (12 Sick.) 133. 
 
 103. A stockholder in a corporation organized 
 under the general act of 1848, as amended in 
 1853 (ch. 333, Laws of 1853 ; 3 Edm. Stats., 741), 
 who pays for his stock in property necessary to 
 the business of the company, is not personally 
 liable for its debts, although tlie stock purchased 
 by him was apart of that stated in the certificate 
 of its organization. Ct. App., 1871, Schenck v. 
 Andrews, 46 N. Y. (1 Sick.) 589. 
 
 104. Where tlie capital stock of a corporation, 
 organized under those acts, is paid in property 
 necessary for its business, under the latter act. 
 
190 
 
 CORPORATION. 
 
 a creditor may still, if he can show the transac- 
 tion to have been fraudulent, or an evasion of 
 the law requiring payment in money or its equiv- 
 alent in value in sucli property, recover against 
 the stockholder to whom such stock was issued, 
 the same as if no payment had been made or 
 certificate filed. Ct. App., 1872, Boynton v. Hatch, 
 47 N. Y. (2 Sick.) 226. 
 
 106. In order to protect the stockholder paying 
 for his stock in property necessary for the busi- 
 ness of the company, such property must be 
 transferred at its actual value ; and the price 
 agreed by the company to be paid is only prima 
 facie evidence of such value in favor of the stock- 
 holder. Per Peckham, Gbover and Folgek, 
 J.J. lb. 
 
 106. Indorsement on bills. Where the char- 
 ter of a bank makes the property of its stock- 
 holders subject to execution on judgments against 
 the corporation, but does not create any personal 
 liability on their part, the mere indorsement on 
 its bills of the words " individual property of 
 stockholders liable " will not attach to them any 
 such liability. Ct. App., 1871, Louiry v. Inman, 
 46 N. Y. (1 Sick.) 119 ; Aff'g S. C, 2 Sweeny, 
 117. 
 
 107. Another action pending. A creditor 
 of a corporation who is entitled to enforce his 
 claim against stockholders, may maintain an ac- 
 tion for that purpose notwithstanding another 
 creditor may have previously commenced pro- 
 ceedings in equity for a sequestration of its prop- 
 erty, and obtained the appointment of a receiver ; 
 the corporation not being thereby dissolved. N. 
 Y. Supr. Ct, 1874, Kincaidy. Dwinelle, 37 N. Y. 
 Supr. (6 J. & Sp.) 326. 
 
 108. Bankruptcy. The right of a creditor 
 of a corporation to enforce his claim against its 
 stockholders is not aSected by an adjudication 
 in bankruptcy against such corporation, even 
 though he may have proved his debt against the 
 bankrupt estate and filed his claim with the 
 assignee. N. Y. Supr. Ct., 1873, Allen v. Ward, 
 36 N. Y. Supr. (4 J. & Sp.) 290. 
 
 109. Iiiability as trustees. Stockholders of 
 a corporation who are in the actual possession 
 and have the immediate control of its property, 
 are trustees of its creditors in respect to such 
 property, and are liable for any act done by them 
 in disposing of it to the injury of such creditors. 
 N. Y. Supr. Ct, 1875, Graham v. Hoy, 38 N. Y. 
 Supr. (6 J. & Sp.) 506. 
 
 110. Although a sale of all the property of the 
 corporation by its stockholders may be perfectly 
 valid, and pass a good title to the vendee, yet 
 that does not affect their liability to creditors 
 vpho are thereby deprived of the means of col- 
 lecting their debts. lb. 
 
 111. Of manufacturing corporation. The 
 liability of stockholders of a manufacturing cor- 
 poration, under § 10, ch. 40, laws of 1848, is by 
 § 24, limited to a certain class of judgment cred- 
 itors ; and the right to maintain an action 
 against one or more of the stockholders to en- 
 force that liability is a several and distinct right 
 in each such creditor, and not a joint right in all 
 the creditors generally, and he may sue alone 
 without joining other creditors, or any of them, 
 as parties. Ct App., 1872, Weeks v. Looe, 50 
 N. Y. (6 Sick.) 568; Aff'g S. C, 83 N. Y., Supr. 
 (2 J. & Sp.) 397. 
 
 112. One stockholder of a corporation, created 
 under the general act for incorporating manu- 
 facturin'g companies, cannot, at law, enforce the 
 liabihty of another stockholder, under any of the 
 provisions of the aot. /* seeins that such liability 
 can be reached only in equity, by an action 
 
 against all the stockholders for contribution. N. 
 Y. Supr. Ct., 1871, Deming v. Pukston, 33 N. Y. 
 Supr. (1 J. &Sp.)231. 
 
 113. Exhaustion of remedy against 
 company. Whether it is a condition precedent 
 to the liability of a stockholder of a manufactur- 
 ing corporation, under the general act of 1848, or 
 not, that the remedy against the corporation shall 
 be first exhausted, by the return of an execution 
 against it unsatisfiedin whole or in part, the per- 
 formance of that condition Is excused where a suit 
 against the corporation, commenced within the 
 proper time, is enjoined by the U. S. Court, at 
 the instance of such stockholder, in bankruptcy 
 proceedings therein, instituted by him against the 
 corporation. Ct. App., 1873, Shellington v. How- 
 land, 63 N. Y. (8 Sick.) 371. 
 
 114. In such case, proof of the debt against 
 the corporation in bankruptcy, does not bar 
 a subsequent action against the stockholder, 
 lb. 
 
 116. A transfer of stock, valid as between the 
 parties to it, and sufficient to vest the equitable 
 title in the transferree, but not consummated in 
 the form required by statute, by an entry upon 
 the books of the corporation, will not relieve 
 the party making it from his legal liability to 
 third persons for the debts of the corporation, 
 lb. 
 
 116. Liability to servant. A person em- 
 ployed by a mining company, as a sort of engi- 
 neer and a sort of foreman, showing the men 
 how to work, and working with them, and acting 
 in place of the superintendent when the latter is 
 absent, is a servant, within the meaning of § 18, 
 ch. 40, Laws of 1848, authorizing the formation 
 of mining and other companies (3 Edm. Stats, 
 p. 733), and as such is entitled to maintain an 
 action against a stockholder of the company for 
 such services, after judgment against the com- 
 pany and execution returned unsatisfied. N. Y. 
 Supr. Ct., 1871, Vincent v. Bamford, 42 How. 
 109; S. C, 13 Abb. N. S. 252 ; 33 N. Y. Supr. 
 (1 J. & Sp.) 606. 
 
 117. One employed by a mining company to 
 manage their affairs and conduct their business 
 in a foreign state or country where the mines 
 are located, and who exercised a general super- 
 vision of the property, and of the affairs of the 
 company ; employed and managed the men ; 
 purchased supplies and performed all the duties 
 of a general superintendent ; kept the accounts, 
 paid the men, and traveled for the company, &c., 
 is a laborer or servant within the meaning of the 
 statute relative to manufacturing companies. N. 
 Y. Supr. Ct, 1872, Hill v. Spencer, 34 N. Y. 
 Supr. (2 J. &Sp.) 304. 
 
 118. A laborer or servant of a mining corpora- 
 tion, in order to sustain an action against 
 a stockholder to recover a debt of a com- 
 pany, must prove a judgment against the com- 
 pany, and that is sufficient proof of the debt, 
 lb. 
 
 119. After dissolution. Although a manu- 
 facturing corporation continues to do business as 
 such after the expiration of its charter, its stock- 
 holders do not thereby become partners so as to 
 be liable as such upon a promissory note subse- 
 quently made in the name of the company. Sup. 
 Ct, 1875, Central Savings Inst. v. Walker, 6 
 Hun, 34. 
 
 120. Judgment against corporation. A 
 manufacturing corporation is not dissolved by 
 the appointment of a receiver and an injunction 
 against the exercise of its corporate rights and 
 franchises, but a creditor can still sue it, and 
 after judgment obtained and execution returned 
 
CORPORATION. 
 
 191 
 
 unsatisfied he can maintain an action against one 
 who is at that time a stockholder to enforce his 
 liability under the statute. Ct. App., 1875, ffin- 
 caid V. Dwinelle, 59 N. Y. (14 Sick.) 548 ; AfE'g 
 S. C, 37 N. Y. Supr. (5 J. & Sp.) 326. 
 
 VUL LlABIUTT OF Trtjstbbs. 
 
 121. Declaring dividend 'When insolvent. 
 The object of tlie statute imposing upon the 
 trustees of a corporation who declare a dividend 
 while the company is insolvent, or which renders 
 it insolvent, or diminishes the amount of its 
 capital stock, a liability for its debts, is to pre- 
 vent the dissipation of the fund designed for the 
 security of creditors ; and, although the statute 
 is highly penal, and a clear case must be estab- 
 lished, yet the substance of the act and not the 
 mere form, must be the test of liability. Ct. 
 App. 1874, Eorke v. Thomas, 56 N. Y. (11 Sick.) 
 559. 
 
 122. A contract by the trustees for the sale of 
 all the property of a corporation, with certain 
 reservations, to be consummated by a transfer 
 of tlie stock, is in legal effect though not in 
 form a sale of his individual stock by each 
 stockholder ; and although the proceeds of the 
 sale are divided among tlie stockholders in pro- 
 portion to the amount of their respective stocks, 
 this is not a declaring of a dividend within the 
 meaning of the statute. lb. 
 
 123. But where, in such case, the property re- 
 served is turned over to a trustee for the pay- 
 ment of debts, and after payment of a portion 
 of them, the balance of the proceeds of such 
 property is divided among the stockholders as- 
 senting to the sale, such division constitutes a 
 dividend within the statute, and, in case the cap- 
 ital is at the time impaired will render the trus- 
 tees personally liable. lb. 
 
 124. - The trustees cannot be charged with the 
 costs in a judgment against the company, per- 
 fected after they have ceased to be trustees. lb. 
 
 125. The provisions of 1 Edm. Stats. 558, see. 
 2, respecting the liability of directors of corpo- 
 rations for declaring dividends except from sur- 
 plus profits, and tliose of tlie act for the incorpo- 
 ration of manufacturing companies (3 Edm. 
 Stats. 735, sec. 13), on the same subject are re- 
 pugnant to each other, and it was not the inten- 
 tion of the legislature tliat both should apply to 
 the trustees of manufacturing corporations. 
 Sup. Ct., 1875, Excelsior Petroleum Co. y. Em- 
 bvry, 4 Hun., 648. 
 
 126. Neglect to report. The effect of the 
 statutory provision (sec. 12, ch. 40, Laws 1848 ; 3 
 Edm. Stats. 735), making trustees of manufac- 
 turing corporations liable for the debts of the 
 company, in case of their failure to make the 
 report therein required, is to make all the trus- 
 tees in office at the time of such failure jointly 
 and severally liable for all the debts of the com- 
 pany then existing, whether contracted by them 
 or their predecessors, and for all that may be 
 subsequently contracted during their continu- 
 ance in office until report is made. N. Y. Supr. 
 Ct., 1871, Vincent v. Sands, 42 How. 231 ; S. C. 
 11 Abb. N. S., 366 ; 38 N. Y. Supr. (1 J & Sp.) 
 511. 
 
 127. Trustees who, upon the occurrence of 
 such default, retire from office, are liable only 
 for debts then existing. lb. 
 
 128. Their successors, by promptly obeying 
 the statute, may escape all liability ; but if they 
 neglect to do so until the next January, they 
 will be liable for all the debts contracted in the 
 meantime, and no other, unless they then make 
 
 default, and thereby make themselves liable for 
 all debts then existing. lb. 
 
 129. Members of successive boards of trustees 
 may thus, by successive defaults, become liable 
 for the same debts. lb. 
 
 130. A default of the company happening 
 after the term of office of a trustee has expired, 
 cannot be charged upon such trustee, for want of 
 a subsequent election to fill his place, except on 
 proof of his continuance in office, by afterward 
 assuming to act, and acting as sucli trustee. lb. 
 
 131. The previous recovery of a judgment 
 against the corporation is not necessary in order 
 to charge a trustee. lb. 
 
 132. The previous recovery of a judgment 
 against a stockholder for the same debt, without 
 payment, is not a bar to an action against a trus- 
 tee, lb. 
 
 133. The statute requiring the annual report 
 must be strictly complied with, in order to re- 
 lieve the trustees from liability. A report signed 
 and verified only by the secretary is not suf- 
 ficient, lb. 
 
 134. Whether a judgment recovered against 
 the corporation is evidence, in a subsequent suit 
 for the same debt against a trustee, of the fact 
 of the indebtedness, is a question upon which 
 the decisions are at variance, but it is unneces- 
 sary to decide it where there is sufficient other 
 evidence of that fact ; and in such a case, an 
 objection to its admission on the sole ground of 
 immateriality cannot be sustained. lb. 
 
 135. A trustee is personally liable for the debts 
 of a manufacturing corporation where tliree 
 things concur, viz.: his trusteeship, his neglect 
 to publish the annual report, and the existence 
 of the debt. Sup. Ct., 1874, Chandler v. Hoag, 
 2 Hun, 613 
 
 136. If a person who becomes trustee more 
 than twenty days after the first of January, 
 desires to avoid personal liability on account of 
 the previous neglect of the trustees to publish 
 their annual report, it is his duty, as it is in 
 his power, to have it then published immedi- 
 ately, lb. 
 
 137. A trustee will not be held liable for a 
 debt contracted after he has resigned and ceased 
 to be a trustee ; and it is not necessary, for tliat 
 purpose, that his resignation shall be accepted 
 or be entered in the minutes of the corpora- 
 tion, lb. 
 
 138. Trustees of a manufacturing corporation 
 continue in office after the expiration of their 
 terms, and until their successors are elected and 
 qualified ; and if they continue to act as trustees 
 after the expiration of their terms, they are liable 
 for all debts of the company existing at the time 
 of a failure to make an annual report, and for such 
 as are contracted before such report is made. 
 If, at the expiration of his term, a trustee 
 retires from tlie company, and performs no 
 act as trustee, although no successor has been 
 elected, he cannot be held liable under that act. 
 lb. N. Y. Supr. Ct., 1874, Reed v. Keese, 37 N. Y. 
 Supr. (5 J. & Sp.) 269 ; AfE'd, S. C, 60 N. Y. (15 
 Sick.) 616. 
 
 139. Wliere the certificate of incorporation 
 of a manufacturing company, filed under ch. 
 40, Laws of 1848, designated six of its 
 stockholders as trustees for the first year, 
 and the by-laws provided that the trustees 
 should be elected annually, and that no trans- 
 fer of stock should be valid for any pur- 
 pose, unless made in writing and entered on 
 the books of the company, but contained no 
 provision for filling vacancies in the office of 
 trustee, the stockholders cannot declare a va- 
 
192 
 
 CORPORATION. 
 
 cancy in such office and fill it by election within 
 that year, on the ground that the trustee has 
 sold his stock, especially while such sale is in- 
 complete for want of a transfer on the books ; 
 nor will the person elected under such circum- 
 stances be liable as a trustee for the debts of the 
 company on its neglect to publish and file the re- 
 port required by law. Sup. Ct., 1871, Craw v. 
 Easterly, iX,3.x\s. 513 ; AfE'd, 54 N. Y. (9 Sick.) 679. 
 
 140. The liability under that statute (§ 12), is 
 imposed by way of penalty, and for a non-feas- 
 ance, and in order to make one liable for a non- 
 feasance, it must appear that he has refused or 
 neglected the performance of some act which 
 the law made it his duty to perform. lb. 
 
 141. Although the acts of the person so elected 
 may bind him and the company while he so acts, 
 he'is not bound to continue to act, and if he 
 ceases to act before the omission of duty and 
 incurring of the debt, he is not liable. S. C, 54 
 N. Y. (9 Sick.) 679. 
 
 142. One who is trustee of a mining corpora- 
 tion, formed under the general act on that sub- 
 ject, at the time of its omission to make its annu- 
 al report according to law, is liable for the debts 
 of the company then existing, and thereafter 
 contracted while he remains a trustee. N. Y. 
 Supr. Ct., 1871, Deming v. Puteston, 33 N. Y. 
 Supr. (1 J. & Sp.) 231 ; S. C, 35 id. 309 ; Aff'd, 
 S. C, 55 N. Y. (10 Sick.) 655. 
 
 143. If, at the expiration of the term of such 
 trustee, there is a failure to elect a successor, 
 and he continues to act as trustee afterwai'ds, 
 he is a trustee de facto, at least, and is liable as 
 such under the act ; and under the provision 
 of sec. 4. of the act of 1848, that " all acts of 
 trustees shall be valid and binding as against 
 the company, until their successors shall be 
 elected," he is probably a trustee dejure. lb. 
 
 144. It does not affect the liability of a trus- 
 tee, that a simple contract debt has been paid in 
 the notes of the company, and afterward merged 
 in a judgment against it. lb. 
 
 145. A trustee of a corporation which fails to 
 file its annual report, is liable for all debts then 
 existing, though contracted before he became 
 trustee ; but existing debts do not include obliga- 
 tions which are not due at the time of default. 
 N. Y. Supr. Ct, 1870, Nimmons v. Hennion, 2 
 Sweeny, 663. 
 
 146. When fixed. The liability of the trus- 
 tees of a manufacturing corporation for its debts 
 on account of their failure to make, file and 
 publish the annual report required by statute, 
 becomes fixed at the time of the default ; and it 
 is not released or affected by the creditors tak- 
 ing the notes of the corporation for his debt, if 
 they are not paid ; nor by his recovery of a 
 judgment against the corporation. N. Y. Supr. 
 Ct., 1874, Jones v. Barlow, 88 N. Y. Supr. (6 J. & 
 Sp.) 142. 
 
 147. Their liability is not in the nature of a 
 debt, but of a penalty. lb. 
 
 148. "Winding up. The fact that a manu- 
 facturing company, organized under the general 
 act of 1848, has ceased to do business, and is 
 engaged in winding up its affairs by a sale of its 
 property and a payment or compromise of its 
 debts, does not, nor does the knowledge by a 
 creditor of this fact, excuse the trustees from 
 filing an annual report as required by section 12 
 of said act, or affect their liability to such cred- 
 itor for a failure so to do. Ct. App., 1874, San- 
 born v. Lejfferts, 58 N. Y. (13 Sick.) 179. 
 
 149. The remedy given by said act exists as 
 well in favor of a creditor who is a stockholder 
 as of outside creditors. lb. 
 
 150. Although the term of office for which a 
 trustee was chosen or appointed may have ex- 
 pired, yet, if he continues to act as such in 
 the absence of any election of a successor, he 
 will be subject to the liability imposed by said 
 act. lb. 
 
 151. A report as follows : "The amount of 
 the capital stock of this company, and which 
 has been issued for the purchase of patent rights, 
 and which has been paid in cash, is $300,000 ; 
 amount of existing debts $45,373.88," is insuffi- 
 cient, inasmuch as it does not state the amount 
 of capital, nor the proportion actually paid in. 
 N. Y. Supr. Ct., 1876, Whitney Arms Co. v. Bar- 
 low, 38 N. Y. Supr. (6 J.& Sp.) 554. 
 
 152. Trustees who make and file such a re- 
 port, and no other, are liable to creditors of the 
 company, the same as if they had filed none at 
 all. lb. 
 
 153. Report by secretary, tinder the 
 general law of 1848 relative to the formation of 
 manufacturing corporations, the duty of making 
 and filing the annual report is devolved upon 
 the trustees, and the secretary cannot subscribe 
 their names to such a report or verify it in any 
 way to make it the act of the corporation so as 
 to relieve the trustees from their duty or its re- 
 sulting liability ; consequently, in an action 
 against them upon a claim due from the com- 
 pany, by an assignee of such secretary, it is no 
 defense to allege that the omission to make and 
 file the report was the wilful and fraudulent 
 neglect of the latter, unless it is further shown 
 that he was specially charged with the prepara- 
 tion of the report, or that he neglected some 
 duty devolved upon him, or that the failure of 
 the trustees to make the report was in some 
 way caused by or attributable to him. Ct. App., 
 1872, Bolen v. Crosby,. 49 N. Y. (4 Sick.) 183. 
 
 154. Debt, for -what liable. Where a trus- 
 tee and secretary of a manufacturing company, 
 being entrusted with money by his wife to use 
 as he deems proper, arranges with the treas- 
 urer of such company to loan it to the company 
 for his wife, neither of them having any author- 
 ity to create a debt binding on the corporation 
 by borrowing money for it, no debt is created 
 within the meaning of sec. 12, ch. 40, Laws of 
 1848, which can be enforced against a trustee in 
 case of failure to file an annual report. N. Y. 
 Supr. Ct., 1874, Adams v. Mills, 38 N. Y. Supr. 
 (6 J. & Sp.)- 16 ; Aff'd, S. C, 60 N. Y. (16 Sick.) 
 688. 
 
 155. The liability imposed by statute upon 
 trustees of manufacturing companies for neglect 
 to file an annual report, is in the nature of a 
 penalty for misconduct in office ; and that pen- 
 alty is the debt of the corporation. N. Y. Supr. 
 Ct., 1870, Dabney v. Stevens, 10 Abb. N. S. 39 ; 
 S. C, 2 Sweeny, 415; Aff'd, 46 N. Y. (1 Sick.) 
 681. 
 
 156. A party seeking to enforce such liability 
 should therefore be held to strict proof that the 
 debt claimed was contracted by the corporation, 
 lb. 
 
 157. Not liable to co-trustee. A creditor 
 of a manufacturing company organized under 
 the general law on that subject, and who was a 
 trustee of such company at the time of its fail- 
 ure to make and file the annual report re- 
 quired by law, cannot recover his debt from a 
 co-trustee, as a penalty for such failure, he be- 
 ing equally liable for the penalty. N. Y. Supr. 
 Ct., 1874, Estes V. Burns, 37 N. Y. Supr. (6 J. & 
 Sp.) 1. Nor can the assignee of one who was trus- 
 tee at the time of the default maintain such an ac- 
 tion against the co-trustee of his assignor. Sup. 
 
CORPORATION. 
 
 193 • 
 
 Ct., 1875, Branson v. Dimock, 4 Hun, 614. S. P. 
 Briggs v. Easterly, 62 Barb. 61. 
 
 158. Evidence. In an action against the 
 trustees of a manufacturing corporation, to 
 charge them personally for a -debt of the com- 
 pany, because of their failure to file an annual re- 
 port, the judgment against the company for 
 such debt is neither conclusive, nor even p-ima 
 facie evidence, as against them, they being 
 neither parties nor privies thereto. Ct. App., 
 1872, MUler v. White, 50 N. Y. (5 Sick.) 137 ; 
 Rev'g S. C, 10 Abb. N. S. 385 ; 59 Barb. 434. 
 
 169. Proof that a report was prepared and en- 
 trusted to one of the company's officers to file, 
 is not sufficient to relieve the defendants from 
 liability, as against evidence showing a thorough 
 search and failure to find any report in the prop- 
 er office. S. C, 10 Abb. N. S. 385 ; 59 Barb. 434. 
 
 160. Joinder of causes of action. A cred- 
 itor of a mining corporation, organized under 
 oh. 40, Laws of 1848, can, in an action against 
 the trustees, join causes of action for not filing 
 a report, — for filing a false report, and for con- 
 spiracy in forming the corporation, and for fraud 
 and misrepresentation inducing the plaintiff to 
 become a creditor of the corporation. Sup. Ct., 
 1874, Bonnell v. Wheeler, 1 Hun, 332. 
 
 161. The causes of action given by that act 
 to creditors of the corporation are assignable, 
 and the action may be maintained by the as- 
 signee, lb. 
 
 162. Wlien action to be brought. An 
 action against the trustees of a corporation for 
 social and recreative purposes, formed under ch. 
 868, Laws 1866 (6 Edm. Stats. 478), to charge 
 them with a debt of the corporation is required 
 by sec. 7 of that act to be brought within one year 
 after the debt has become due and payable. The 
 action therein referred to is not one against the 
 corporation, but one to enforce the individual 
 liability of the trustees. Sup. Ct., 1872, Hall v. 
 Sigel, 13 Abb. N. S. 178; S. C, 7 Lans. 206. 
 
 IX. Dissolution; Receivee. 
 
 163. Ceasing to do business does not ter- 
 minate the existence of a manufacturing cor- 
 poration organized under the general. laws on 
 that subject. Sup. Ct., 1874, Gary v. Schoharie 
 Valley Mach. Co., 2 Hun, 110. 
 
 164. Non-election of officers. The omis- 
 sion of a corporation to elect officers, the sale 
 of its property and effects, and its subsequent 
 failure to transact business, do not work a disso- 
 lution ; but, in order to such dissolution, 
 there must be a surrender of its charter to, and 
 its acceptance by the State, or a judgment of 
 dissolution by a court of competent jurisdiction. 
 Sup. Ct., Sp. T., 1875, Allen v. N. J. Southern R. 
 R. Co., 49 How. 14. 
 
 165. Sequestration of property. The com- 
 mencement of proceedings against a corporation, 
 under 2 B. S. 463, sees. 36, 37 (2 Edm. Stats. 488), 
 and the appointment of a receiver of its property, 
 does not effect the dissolution of such corpora- 
 tion, but any creditor is still at liberty to pro- 
 ceed against it in its corporate capacity. N. T. 
 Supr. Ct., 1874, Kincaid v. Dwindle, 37 N. Y. 
 Supr. (5 J. & Sp.) 326. 
 
 166. Grounds for dissolution. For the 
 trustees of a corporation instituted for benev- 
 olent purposes to agree to pay an individual 
 whatever amount he might procure to be appro- 
 priated thereto by the legislature, in excess of a 
 sum specified, and after he had procured such an 
 appropriation to be made to pay him such ex- 
 cess, is such an abuse of the powers of the cor- 
 
 13 
 
 poration as to constitute a sufficient cause for 
 its dissolution. Sup. Ct., 1873, People v. Dis- 
 pensary Sf Hospital So., etc., of New York, 7 Lans. 
 304. 
 
 167. An answer to a complaint on behalf of 
 the people, asking such dissolution, which does 
 not deny the facts of such agreement and pay- 
 ment, but merely alleges that the trustees acted 
 under the advice of counsel in making the pay- 
 ment, and that the board of trustees had been 
 changed at a recent election, and was now com- 
 petent to manage the affairs of the corporation, 
 does not set up any defense, but is clearly friv- 
 olous, lb. 
 
 168. Insolvency and non user, though grounds 
 for judicially declaring a corporation dissolved, 
 do not of themselves operate to create a disso- 
 lution. That can be created only in the mode 
 provided by statute. N. Y. Supr. Ct., 1875, 
 Nimmons v. Tappan, 2 Sweeny, 652. 
 
 169. To warrant a judgment of ouster against 
 a turnpike company, after the lapse of 50 
 years from its incorporation and the construc- 
 tion of its road, for a misuser of its franchises in 
 failing to comply with the statute in the original 
 construction of its road and for failing to keep 
 it in repair, the verdict must show the fact, not 
 merely of a breach of the letter of the condition 
 subsequent, but that the original deviation was 
 material, and resulted in injury to the public, or 
 that the want of repair was such as to render 
 the road dangerous or inconvenient to travelers. 
 Ct. App., 1872, People v. Williamsburqh Turnpike 
 and B. Co., 47 N. Y. (2 Sick.) 586. 
 
 170. Jurisdiction of action for. The remedy 
 provided by sec. 36, article 2, title 4, chap. 8, part 
 3, E. S. (2 Edm. Stats. 483), for the dissolution of 
 a corporation and sequestration of its effects, 
 can now be obtained and enforced by action 
 under the Code ; and the Superior Court of Kew 
 York city has jurisdiction of such an action 
 against a corporation having a place of business 
 in that city. N. Y. Supr. Ct., 1872, Ton Pelt v. 
 U. S. Metallic Spring, etc., Co., 13 Abb. N. S. 
 325; S. C.,35N. Y. Supr. (3 J.& Sp.) 111. 
 
 171. Assessment after dissolution. Trus- 
 tees of an insolvent manufacturing corpora- 
 tion, in proceeding to wind up its affairs under 
 the provisions of ch. 361, Laws of 1852, and ch. 
 179, Laws of 1853, without any direction of the 
 court, cannot properly make any assessment 
 upon stockholders until they have complied 
 with the provisions of those acts in regard to 
 disposing of the property and collecting the 
 debts due the company, that it may be seen 
 whether any, and, if any, what assessment is 
 necessary. Sup. Ct., 1871, Hurd v. Tallman, 60 
 Barb. 272. 
 
 172. Moneys due the company from stock- 
 holders, for unpaid shares of stock, constitute a 
 part of the fund applicable to the payment of its 
 creditors, and should be collected by the trus- 
 tees, lb. 
 
 173. The failure of the trustees to dispose of, 
 or attempt to dispose of the property, or to col- 
 lect the debts of the company, goes to the 
 jurisdiction of the trustees to make any assess- 
 ment at all, and is a good defense to an action 
 on an assessment made without doing so. lb. 
 
 174. Mere objections to the mode in which 
 the trustees have made the assessment, the con- 
 siderations they took into view in determining the 
 amount necessary to be assessed, and the stock 
 upon which it should be assessed, cannot be urged 
 in an action to collect an assessment ; but, if the 
 assessors had jurisdiction to proceed and make 
 the assessment, such errors should be corrected 
 
194 
 
 COSTS. 
 
 by an application to the court under the statute, 
 whicli probably embraces stockholders within 
 its equity, although they are not expressly 
 named. lb. 
 
 176. Transfer of property. That provision 
 of the statute (2 E. S. 469, sec. 71) which makes 
 all transfers of the property of a corporation, 
 after the filing of a petition for its dissolution, 
 void as against the receiver, appointed on such 
 petition, does not include the extinguishment or 
 satisfaction of a chose in action, either by pay- 
 ment in full or by part payment, and a mutual 
 release of obligations in complete satisfaction of 
 counter liabilities. — So held, where a premium 
 note given to a raiitual insurance company was 
 canceled, on payment of an assessment thereon 
 and surrender of tlie policy. Ct. App., 1873, 
 Sands V. Hill, 55 N. Y. (10 Sick.) 18. 
 
 176. That section was not intended to prohibit 
 the collection of debts by the corporation, but 
 its object unquestionably was to prevent the 
 corporation or its officers from doing any act 
 by which one creditor should get a preference 
 over another, with tlieir or its assent. lb. 
 
 177. Reversion of realty. The common- 
 law rule, that real estate held by a corporation 
 at the time of its dissolution reverts to the 
 grantor, does not prevail in this State in respect 
 to stock corporations ; so that, where lands are 
 conveyed absolutely to such a corporation, no 
 reversion or possibility of a reverter remains in 
 the grantor. Ct. App., 1872, Heath v. Barmore, 
 SON. Y. (5 Sick.) 302. 
 
 178. Receiver. Since the passage of ch. 151, 
 Laws 1870 (7 Edm. Stats. 662), the proceeding for 
 the appointment of a receiver of a corporation, 
 after execution returned unsatisfied, must be by 
 civil action under that act, instead. of by petition 
 as prescribed by title 4, ch. 8, part 3, of the Re- 
 vised Statutes. Sup. Ct., 1874, Clinch v. South 
 Side R. R. Co. of Long IsL, 1 Hun, 636. 
 
 179. In an action brought by a judgment 
 creditor against a corporation, a receiver may 
 properly be appointed under the act of 1870, 
 notwithstanding the defendant alleges that the 
 judgment of such creditor was obtained by 
 the collusion and fraud of its president, if, an 
 opportunity being given to it to apply for leave 
 to put in that defense in the original action, 
 it fails to do so. Sup. Ct., 1875, Lodei- v. N. Y., 
 Utica ^ Ogdensburgh R. R. Co., i Hun, 22.. 
 
 180. A stockholder of a corporation cannot 
 maintain an action to effect a forfeiture of its 
 charter for non-user of its powers within a year, 
 but such action should be brought by the attor- 
 ney-general, and even in an action so brought a 
 receiver cannot be appointed until after judg- 
 ment. Sup. Ct., 1871, Gilman v. Green Point 
 Sugar Co., i Lans. 482 ; S. C, 61 Barb. 9. . 
 
 181. A receiver of the property of a corpora- 
 tion ought not to be appointed, unless in a case 
 of Necessity to protect the stockholders or cred- 
 itors from loss, or to prevent abuse of the corpo- 
 rate franchises ; inasmuch as, when appointed, 
 he displaces the directors or other agents select 
 ed by the stockholders to manage their affairs, 
 and under the direction of the court appointing 
 him, has the sole control of its property and 
 effects, and when authorized so to do, the ex- 
 clusive power to use its franchises. Sup. Ct., 
 1871, City of Rochester v. Branson, 41 How. 78. 
 
 182. The appointment of a receiver of a cor- 
 poration is, in the most emphatic terms, forbid- 
 den by ch. 151, Laws of 1870, except in the 
 cases therein enumerated. lb. 
 
 ■ 183. That statute cannot be construed to per- 
 mit a receivership at the discretion of the court, 
 
 merely because it is proposed to extend it to but 
 a part of the corporate property. lb. 
 
 184. A receiver ought not to be appointed in 
 an action by the owner of a majority of the 
 stock of a railroad company, to recover the bal- 
 ance of rent alleged to be due the plaintiff on 
 account of the lease of such railroad to another 
 company, on the ground that certain persons, 
 defendants in the action, claiming to be directors 
 of the former company, although decided by the 
 courts not to be its lawful directors, still hold 
 its property, and are conniving with the lessee 
 company to prevent the collection of the rent, 
 and there is danger of its loss on account of the 
 insolvency of the latter company. The legally 
 elected directors should proceed in the ordinary 
 manner to obtain possession of the property of 
 the company. lb. 
 
 185. Such alleged insolvency of the lessee 
 company forms no ground for the appointment 
 of a receiver, where its answer denies that fact 
 as positively as it is affirmed in the com- 
 plaint, lb. 
 
 186. Nor does the fact that both the defend- 
 ants who claim to be directors, and the lessee 
 companj', are resisting the action, furnish any 
 ground for the appointment of a receiver. lb. 
 
 187. Distribution. Where a receiver has 
 been appointed, in proceedings under the Revised 
 Statutes for the dissolution of an insolvent cor- 
 poration and the distribution of its assets, the 
 right of any person claiming to be a creditor to 
 share in the distribution must be determined 
 upon application to the court in the same action 
 or proceedings, and in the district wliere the 
 receiver was appointed, and only in that district. 
 Ct. App., 1874, Rinn v. Astor Fire Ins. Co., 59 
 N. Y. (14 Sick.) 143. 
 
 188. A creditor of an insolvent corporation, 
 against which proceedings for its dissolution 
 have been commenced, and a notice therein 
 published, in accordance with tlie provisions of 
 sec. 56, 2 R. S. 466 (2 Edm. Stats, 487), who 
 does not present his claim within the six mouths 
 prescribed by such notice, is barred of all rights 
 in the distribution, notwithstanding he may have 
 exhibited his claim before the second dividend. 
 Ct. App., 1871, Harmony Fire and Marine Ins. 
 Co., In matter of, 45 N. Y. (6 Hand,) 310 ; Aff'g 
 S. C, 9 Abb. 347. 
 
 189. Section 81, allowing creditors who pre- 
 sent their claims before the second dividend to 
 share in the first, applies only to those not barred 
 under sec. 56. lb. 
 
 190. Proving claim. A plaintiff in a suit 
 against a corporation, pending at the time a 
 receiver is appointed for such corporation, may 
 be permitted, at any time before entry of a final 
 decree excluding creditors who have not pre- 
 sented their claims, to come in, prove his claim 
 and participate equitably in the fund not yet 
 distributed. Sup. Ct., 1875, Smith v. Manhattan 
 Ins. Co., 4 Hun, 127. 
 
 191. But it is error to require the receiver to 
 pay such creditor his proportion of a dividend 
 which he had made before actual notice of the 
 claim, and without reserving any fund specifi- 
 cally applicable thereto. lb. 
 
 COSTS. 
 
 1. In &ENERAI, 195 
 
 n. Security foe costs X96 
 
 III. MoTIOH COSTS 19g 
 
 IV. In paktioulae cases 197 
 
COSTS. 
 
 195 
 
 V. In equity cases. 
 VI. Taxation 
 
 199 
 199 
 
 I. Ik genekal. 
 
 1. Who liable for. An assignee to whom a 
 claim is assigned absolutely after the commence- 
 ment of an action thereon, is liable, under sec. 
 321, of the Code, for the costs of the action 
 in the same manner as if he was a party, wheth- 
 er or not he ever took any substaittial part in 
 prosecuting it. Ct. App., 1873, Domling v. Buck- 
 ing, 15 Abb. N. S. 190 ; S. C, 52 N. Y. (7 Sick.) 
 658. S. P. Genet v. Davenport, 58 N. Y. (13 
 Sick.) 607. 
 
 2. If the claim is assigned to him simply as 
 collateral security, he is not liable for such 
 costs. lb. 
 
 3. An assignee in bankruptcy is a trustee 
 of an express trust, within the meaning of sec. 
 317 of the Code, and, in the absence of miscon- 
 duct or bad faith, he is protected from personal 
 liability for costs in a suit commenced by his 
 assignor and continued by him after the assign- 
 ment, and is not liable to attachment under sec. 
 321 of the Code. Ct. App., 1873, Reade v. Wa- 
 terhouse, 52 N. Y. (7 Sick.) 587 ; Rev'g S. C, 12 
 Abb. N. S. 255 ; 35 N. Y. Supr. (3 J. & Sp.) 78. 
 
 4. The fact that the trust fund is under the 
 control of another court than tliat in which such 
 action is prosecuted, does not affect his liability 
 for costs. lb. 
 
 6. Attorney beneficially interested. An 
 attorney who brings, in tlie name of another, an 
 action in which he is beneficially interested by 
 virtue of an agreement that he shall share in the 
 recovery by way of compensation for his ser- 
 vices, is liable to the defendant for his costs, and 
 this liability is not removed by sec. 303, of the 
 Code, which legalizes such agreements. Com. 
 App., 1872, Voorhees v. McCartney, 61 N. Y. (6 
 Sick.) 387. 
 
 6. Executor. Costa against an executor or 
 administrator, to be levied on his property or 
 on that of the deceased, can only be allowed by 
 the court on motion, after trial. A referee has 
 no power to allow them. Sup. Ct., 1875, Bailey 
 T. Bergen, 5 Hun, 555. 
 
 7. Costs may be recovered in an action against 
 executors, although the claim presented for pay- 
 ment before action brought be larger in amount 
 and contain items additional to those in the one 
 afterward recovered upon, if, in fact, it is sub- 
 stantially the same claim, and be so presented as 
 to inform the executor of its general nature ; 
 and it makes no difference that it is presented 
 to only one of two executors, or is made in favor 
 of a party in some respects different from the 
 one wlio afterward sues. N. Y. C. P., 1870, Genet 
 T. Binsse, 3 Daly, 239. 
 
 8. Indifferent party. An insurance company 
 which concedes its liability on a policy and is 
 ready to pay to whosoever is entitled, should not 
 be charged with costs in an action by one claim- 
 ant against the company and another claimant 
 to determine the conflicting claims ; but it 
 should be allowed costs to be paid by the un- 
 successful claimant. Ct. App., 1875, Barry v. 
 Equitable Life Assurance So., 59 N. Y. (14 Sick.) 
 587 ; Aff'g S. C, 14 Abb. N. S. 385, n. 
 
 9. Where two suits are pending on such policy, 
 one of them' in another State, the company is 
 not bound to offer to pay the fund into court 
 in order to relieve itself from liability for 
 costs. lb. 
 
 10. Judgment creditors who procure an 
 action to be brought and prosecuted in the name 
 
 of a receiver appointed in supplementary pro- 
 ceedings instituted by them, he merely consent- 
 ing to such use of his name, will be deemed the 
 real parties in interest in the action ; and, on 
 motion, will be charged with the costs of a suc- 
 cessful defense therein ; especially where such 
 action was brought without leave of court. Sup. 
 Ct., Sp. T., 1875, Gallation v. Smith, 48 How. 
 477. _^ 
 
 11. Trustee. Under sec. 317 of the Code, a 
 judgment for costs against a trustee who is a 
 party in his representative capacity, is to be 
 deemed a charge upon the trust estate only, un- 
 less the intent to charge the trustee personally 
 appears. Sup. Ct., Sp. T., 1872, American Life 
 Ins. Co. V. Van Epps, 14 Abb. N. S. 253. 
 
 12. If the trust expires pending the proceed- 
 ings, and the trustee continues to act as such, 
 but for his own benefit as owner of the property, 
 the court may compel him to pay such costs 
 personally ; and may order that in default of 
 payment lie show cause why an attachment 
 shoul d no t issue. lb. 
 
 13. wno entitled to. Where the com 
 plaint states an action at law, although an equit- 
 able defense is set up, the Code governs the 
 costs and the right to costs ; and the court or 
 referee has no discretion as to which party shall 
 have costs. Sup Ct., Sp. T., 1873, Lam v. 
 Trout, 46 How. 94. 
 
 14. If, in such a case, judgment is ordered for 
 the defendant on his answer, without costs to 
 either party, it is irregular for him to enter up 
 judgment with taxed costs, although entitlQ^d 
 thereto, without application to the court ;,yfil^,. 
 such costs will not be struck out on plaintiH'a 
 motion. lb. 
 
 15. Where a complaint contains two causes of 
 action, and the defendant succeeds upon one of 
 them only, he is not entitled to costs. Ct. App., 
 1872, Watson v. Gardiner, 50 N. Y. (5 Sick.) 
 671. 
 
 16. A defendant, who, in an action against 
 him by a number of plaintiffs to recover damages 
 which accrued to them severally, obtains judg- 
 ment against four of the plaintiffs, is entitled to 
 judgment for costs against such four, although 
 the others recover judgment against him. Sup. 
 Ct., 1871, Knowlton v. Pierce, 41 How. 361. 
 
 17. The amendment in 1851 to sec. 306 of the 
 Code, must be regarded as regulating in all ac- 
 tions, legal as well as equitable, the whole sub- 
 ject of the recovery of costs by one of several 
 defendants who obtains judgment in his favor ; 
 and the right to such recovery is confined to the 
 cases expressly mentioned. A defendant who 
 is united in interest with his co-defendants, 
 or who does not make a separate defense, by 
 separate answer, is not entitled to costs. Ct. 
 App., 1874, Allis V. Wheeler, 56 N. Y. (11 Sick.) 
 50. 
 
 18. Between defendants. The court has 
 no power to award costs in favor of some of the 
 defendants, against other defendants in the 
 same action, unless' it be necessary to do so in 
 adjusting the " ultimate rights " of tlie parties 
 in the subject matter of the action. Sup. Ct., 
 1871, People V. Albany ^ Susq. R. R. Co., 6 Lans. 
 25; Aff'd, S. C, 57 (N. Y. (12 Sick.) 161. 
 
 19. Illegal proceedings. Where a cause 
 is, without legal authority, sent by a County 
 Court to be heard at tlie General Term of the 
 Supreme Court, and is for that reason denied a 
 hearing by that court, and simply dismissed with- 
 out any judgment or order in respect to costs ; the 
 plaintiff, on recovering judgment in the County 
 Court, is- not entitled to costs accruing in the 
 
196 
 
 COSTS. 
 
 Supreme Court on such illegal proceedings ; nor 
 has the County Court or the county clerk power 
 to award costs thereof to him. He should have 
 applied to the County Court to have such order 
 vacated, and on such motion would have been 
 entitled to costs. Sup. Ct., 1870, Humiston v. 
 Ballard, 68 Barb. 9. 
 
 20. On appeal. Where the Court of Appeals 
 reverses an interlocutory order of the Supreme 
 Court, with costs, the costs are to he adjusted 
 and collected in the same manner as other inter- 
 locutory costs. A judgment for costs cannot be 
 entered upon the remittitur, jior can the costs of 
 appeal be adjusted by the clerk. Ct. App., 
 1872, Brown v. Leigh, 13 Abb. N. S, 305 ; S. C, 
 50 N. Y. (5 Sick.) 427. 
 
 21. Appeals from orders to the Court of Ap- 
 peals are not within the exceptions of subd. 5, 
 sec. 307 of the Code. Where costs are given 
 the successful party is entitled to full costs. lb. 
 
 22. On appeal from an order the court may 
 properly allow the successful party, in addition 
 to motion costs, his disbursements for printing 
 the papers and points. Sup. Ct., 1870, Erie 
 Railway Co. v. Ramsey, 10 Abb. N. S. 109. 
 
 23. The terms, "defendant's costs," as used 
 in sec. 385 of the Code, means only such costs 
 as are legally allowed, either by express statute 
 or by the exercise of the discretion of the 
 court ; and if an appellate court, upon affirm- 
 ing in part and reversing in part the judgment 
 below, does not expressly allow costs, the de- 
 fendant is not entitled to costs of the appeal, al- 
 though he may have previously offered judg- 
 ment for the amount finally recovered by the 
 plaintiff, and his offer have been refused. Sup. 
 Ct., 1874, Board of Commissioners of Pilots v. 
 Spofford, 3 Hun, 62. 
 
 24. Payment after action commenced. 
 If, after action commenced, the defendant pays 
 the amount of plaintiff's claim to his clerk, and 
 takes a receipt therefor, without disclosing the 
 fact that he has been sued thereon ; and the plain- 
 tiff, on learning of the payment, refuses to ac- 
 cept it until the costs of suit are paid, and so 
 notifies the defendant, he can recover costs as 
 well as the principal sum ; but if he accepts 
 and uses the amount paid, he extinguishes the 
 debt, and cannot recover costs. ' Sup. Ct. Clr., 
 1875, Keeler v. Van Wie, 49 How. 97. 
 
 n. Security toe Costs. 
 
 25. An attorney prosecuting an action for 
 a non-resident plaintiff, is Hable, tinder 2 B. S. 
 620,sec. 7 (2 Edm. Stats. 645), for costs to an 
 amount not exceeding $100, until security for 
 costs is filed ; and this liability may be enforced 
 summarily by order. N. Y. Supr. Ct., Sp. T., 
 1875, Willmont v. Meserole, 48 How. 430. 
 
 26. But where an attorney at law, not the at- 
 torney of record of such non-resident plaintiff, 
 signs a bond as security for costs, his obligation 
 can be enforced only in the same way as if he 
 were not an attorney. lb. 
 
 27. Administrator of non-resident. The 
 mere fact that the intestate and his widow and 
 kin were non-residents of this State, is not suf- 
 flcent cause for requiring the administrator of 
 8\ich intestate appointed and resident here, to 
 give security for costs in a suit commenced by 
 hun, under the discretionary power given by 
 sec. 317 of the Code, in the absence of any 
 proof of mismanagement or bad faith on his 
 part. Buff. Supr. Ct., Sp. T., 1872, Norris v. 
 £reed, 12 Abb. N. S. 185. . , . .^ 
 
 28. Non-resident of county. A plamtiff 
 
 who brings an action in the County Court of a 
 county other than that in which he resides, is 
 practically within the jurisdiction of the court, 
 since a judgment of that court can be docketed 
 in any county. He cannot, therefore, be required 
 to give security for costs on the ground tliat he 
 does not reside within the jurisdiction of the 
 court Sup. Ct., 1875, Elliott v. Wood, 6 Hun, 694. 
 
 29. Justification. Each of the sureties on a 
 bond given by a non-resident plaintiff as security 
 for costs on, commencement of an action must 
 justify, if excepted to; and the non-justification of 
 one of the sureties who was excepted to is a good 
 defense to an action thereon against both. N. T. 
 C. P. Chambers, 1872, Lake v. Arnold, 44 How. 
 332. 
 
 30. Iiiability of sureties. The sureties in a 
 bond for costs, conditioned for the payment on 
 demand of all costs which may be awarded to 
 the defendant, are liable for the costs on appeal 
 to the general term as well as for the costs 
 below. N. Y. Supr. Ct., 1873, Forty Second Street 
 ^ Grand St. Ferry R. R Co. v. Guntzer, 36 N. Y. 
 Supr. (4 J. & Sp.) 667. 
 
 m. Motion costs. 
 
 31. Limited. The Code confers power to im- 
 pose costs on the decision of a motion only to 
 the extent of $10, and no more than that 
 in all can be allowed although separate attor- 
 neys appear therein for different parties. Sup. 
 Ct., 1872, Town of Middletown v. Eondout^r Oswego 
 R. R. Co., 43 How. 481. 
 
 32. Where several motions of the same nature 
 are made at the same time, upon the same or 
 similar papers, and by the same attorneys, 
 although in actions by different plaintiffs against 
 the moving party, but one bill of costs should be 
 allowed in granting or refusing such motions. 
 Ct. App., 1872, McCoun v. The N. Y. -Cent. * 
 Hud. Riv. R. R. Co., 50 N. Y. (5 Sick.) 176. 
 
 33. Disbursements. A motion to stay pro- 
 ceedings on a judgment, upon the ground that it 
 has been settled, is a proceeding in the action, 
 and the court has power, under section 311 of 
 the Code, to adjust the costs, and in so doing 
 may allow to the successful party his necessary 
 disbursements, in addition to the specific allow- 
 ance provided for by section 315. Sup. Ct., 1874j 
 Pitkin V. Cooley, 5 Hun, 48. 
 
 84. On discontinuance of a suit upon mo- 
 tion of the plaintiff, it is in the.dis'cretion of the 
 court to impose the payment of taxable costs as 
 a condition of granting leave to discontinue. N. 
 Y. C. P., Sp. T., 1871, Tubbs v. HaU, 12 Abb. N. 
 S. 237. 
 
 35. The court may also impose the payment 
 of an extra allowance to the defendant as such 
 condition, and it is especially proper to do so in 
 a case where the defendant has interposed a 
 counter-claim. lb. 
 
 36. Motion to disbar attorney. TJpon a 
 motion by one attorney to disbar another, if 
 the Supreme Court finds that the proceeding 
 was instituted in bad faith, it has power to order 
 the disbursements as well as motion costs to be 
 paid by the applicant, and its decision is not 
 reviewable in the Court of Appeals. Ct. App., 
 1875, In matter of Kelly, 59 N. Y. (14 Sick.) 595 : 
 Aff'g. S. C, 3 Hun, 636. 
 
 37_. On motion for a new trial, made upon 
 the judge's minutes, the prevailing party is not 
 entitled to the costs as for a motion, but only to 
 a trial fee as for the trial of an issue of fact. N 
 Y. Supr. Ct., Sp. T., 1872, Muller v. Higgini, 44 
 How. 224 ; S. C, 13 Abb. N. S. 297 
 
COSTS. 
 
 197 
 
 88. Payment of costs should not be imposed as 
 a condition of granting a new trial, when the ver- 
 dict is against the charge of the judge, and at vari- 
 ance with the evidence. N.Y. Supr. Ct.l874, Lough 
 V. Romaine, 36 N. Y. Supr. (4 J. & Sp>) 332. 
 
 39. Motion that pleadings be filed or 
 deemed abandoned. Although sec. 416 of the 
 Code requires pleadings to be filed without no- 
 tice, yet where a party gives notice to the 
 adverse party out of courtesy, and is afterward 
 compelled to draw and present an affidavit of 
 his omission to file them in order to compel the 
 filing, he may properly be allowed $10 costs 
 of the motion therefor. N. Y. C. P., Sp. T., 
 1873, Langbein v. Gross, 46 How. 50 ; S. C, 14 
 Abb. N. S., 412. 
 
 40. On order of reference. An allowance 
 may properly be made of motion costs, to abide 
 the event of an order of reference. Ct. App., 
 1872, Watson v. Gardiner, 50 N. Y. (5 Sick.) 671. 
 
 IV. In pakticulae oases. 
 
 41. Action to annul tax certificate. Costs 
 
 in an action to annul a tax certificate on the 
 ground of error in the assessment, being within 
 the discretion of the court, the holder of such a 
 certificate who has litigated the case through all 
 the courts, cannot complain if he is charged 
 therewith. Com. App., 1872, Newell v. Wheeler, 
 48N. Y. (3Sick.) 486. 
 
 42. On certiorari. When the judgment of 
 the lower court is affirmed, upon certiorari, with 
 costs, the costs should be taxed as in an action 
 at issue on a question of law, as required by sec. 
 318 of the Code as amended in 1862 ; the provis- 
 ion of sec. 3, ch. 570, Laws 1854, as to costs in 
 such proceedings being repealed by that section 
 of the Code. Sup. Ct., Sp. T., 1872, People ex rel. 
 Shelton V. Gower, 44 How. 26. 
 
 43. As that section of the Code relates only to 
 costs after issue, it does not destroy the' right to 
 the disbursements in the court below, which are 
 taj&ble as part of the costs ih the higher court. lb. 
 
 44. Condemnation of land. A proceeding 
 under the general railroad act, to condemn 
 private lands for railroad purposes, is a special 
 proceeding within sec. 3 of the Code. In its pur- 
 pose and scope Jt is much more analogous to an 
 action than a motion, and, theriefore, when costs 
 are allowed a party resisting such an application, 
 under the act in relation to special proceedings 
 (ch. 270, Laws of 1854), he is entitled to full 
 costs on the hearing and upon appeal, as in an 
 action, at the rates prescribed by the Code. Ct. 
 App., 1873, Rensselaer and Saratoga R R Co. v. 
 Davis, 55 N. Y. (10 Sick.) 145. 
 
 45. Exceptions heard at General Term. 
 Where judgment on the verdict at the circuit is 
 suspended, and exceptions sent for hearing in 
 the first instance at the General Term, and judg- 
 ment is there directed in accordance with the 
 verdict, though for a less amount, the recover- 
 ing party is entitled to costs of the General 
 Term as well as costs for previous proceedings 
 in the cause. Sup. Ct., 1870, Duff v. Wardell, 
 10 Abb. N. S. 84. 
 
 46. It makes no difCerence, in such a case, 
 that the defendant is sued as executor. lb. 
 
 47. Jud^ent on frivoloas pleading. If 
 an application for judgment on a pleading as 
 being frivolous, made under section 247 of the 
 Code, is granted, but leave is given to plead 
 over, the moving party is entitled only to costs 
 of the motion. N. Y. C. P., Sp. T., 1871, Bern- 
 hard v. Kapp, 11 Abb. N. S. 342. 
 
 48. Where judgment is graflted absolutely, 
 
 upon such application, without leave to plead 
 over, the successful party is entitled to costs of 
 the action, before and after notice, and a trial 
 •fee. N. Y. C. P., Sp. T., SUl v. Simpson, 11 Abb. 
 N. S. 348. 
 
 49. Beyond justice's jurisdiction. A 
 mere claim for damages exceeding a justice's 
 jurisdiction does not bring the action within the 
 provision of subd. 8, section 304 of the Code, 
 giving a plaintiff costs of course in case of recov- 
 ery of judgment by him. The actions there 
 spoken of are those only which are expressly 
 withdrawn from justices, and which are enum- 
 erated in section 54 of the Code. Sup. Ct., 1872, 
 Turner v Van Riper, 48 How. 33. 
 
 50. If, in fact, the sum total of the accounts 
 jf the parties does exceed $400, it is not neces- 
 sary that the action be first brought in a jus- 
 tice's court, and that the fact of such excess 
 should there be shown by proof, in order to en- 
 title a plaintiff, who brings an action on account 
 in a court of record, to costs in case he recovers. 
 Sup. Ct., Sp. T., 1871, Lund v. Broadhead, 41 
 How. 146. 
 
 51. Where the complaint alleges an account 
 for services to the amount of $450, and admits 
 that the defendants have a set-off or counter- 
 claim to the amount of $409.13. leg,vihg a bal- 
 ance of $40.87 unpaid ; and the defendants admit 
 the plaintifi's -account and the non-payment of 
 the balance, and merely allege an accounting 
 and settlement showing such balance, the plead- 
 ings do not show jurisdiction in the justice's 
 court, and the plaintiff, upon recovering the ad- 
 mitted balance, is entitled to costs. lb. 
 
 52. The defendants should have pleaded the 
 items of their account as payments made on 
 account of plaintiff's services, instead of setting 
 them up by way of set-off or counterclaim, in 
 order to avoid liability for costs ; because pay- 
 ments extinguish the creditor's claim or demand 
 pro tanto. lb. 
 
 53. After an adjudication by a justice of the 
 peace that he has no jurisdiction of an action 
 because the accounts of the parties proved be- 
 fore him exceed $400, the plaintiff is bound to 
 commence his action in the Supreme Court, if 
 at all, and will be entitled to costs, on the recov- 
 ery of any amount in that court. Sup. Ct., 1871, 
 Bailey v. Stone, 41 How. 346. 
 
 54. Within justice's jurisdiction. A plain- ' 
 tiff who brings an action for trespass upon land, 
 in the Supreme Court, is not entitled to costs if 
 he recovers only $5 damages, even though he 
 claimed $500, in his complaint ; the action being 
 within a justice's jurisdiction. Sup. Ct., Sp. T., 
 1871, Alexander v. Hard, 42 How. 131. 
 
 55. Neithet will the fact that title to land 
 came in question on the trial, entitle the plain- 
 tiff to costs, if he was defeated in respect there- 
 to ; the complaint not alleging any cause of 
 action of which a justice would not have juris- 
 diction, lb. 
 
 56. In an action to recover damages for the 
 conversion of personal property, although the 
 plaintiff claims judgment for $10,000, if he re- 
 covers only $1, he is not entitled to costs, the 
 action being within the jurisdiction of a justice 
 of the peace. Sup. Ct., 1874, Seaman y. Glegner, 
 8 Hun, 119. 
 
 57. If the cause of action is one of which a 
 justice of thi? peace has jurisdiction, a verdict of 
 the jury in favor of the plaintiff for less than 
 $50, conclusively establislies that the particular 
 action was within a justice's jurisdiction, and 
 the plaintiff is not entitled to costs. Sup. Ct., 
 Sp. T., 1872, Lultgor v. Walters, 64 Barb. 417. 
 
198 
 
 COSTS. 
 
 58. In such a case the defendant is entitled to 
 costs, of course, and as a matter of absolute 
 right, and no application to the court is neces- 
 sary before taxation thereof. lb. 
 
 59. In an action on contract tried by a referee, 
 wliere the recovery is less than $50, the right of 
 tlie plaintiff to costs must be determined by the 
 fiicts found by the referee, which, for tliis pur- 
 pose, are conclusive upon the parties. Ct. App., 
 1871, Fuller v. Conde, 47 N. Y. (2 Sick.) 89. 
 
 60. The rule that it will, in support of the 
 judgment of a referee, be assumed tliat he found 
 other facts in addition to those specified in his 
 report, lias no application to such a case ; as the 
 referee gives no judgment upon and has no 
 power over the question of costs. lb. 
 
 61. Offer of judgment refused. Under 
 the provisions of sec. 385 of the Code, as amend* 
 ed by ch. 479, Laws 1851, if the plaintiff fails to 
 obtain a more favorable judgment than had 
 previously been offered by the defendant, he is 
 entitled only to costs accrued prior to the offer, 
 and the costs subsequent to the offer should be 
 taxed in favor of the defendant ; the costs in 
 either case to include the necessary disburse- 
 ments. N. Y. Supr. Ct., Sp. T., 1873, Magnin v. 
 Dinsmore, 46 How. 297 ; S. C, 15 Abb. N. S. 331. 
 
 62. An action commenced in a justice's court 
 and on plea Of title discontinued and brought in 
 the Supreme Court, continues the same action, 
 and an offer, made before answering in the jus- 
 tice's court, to allow judgment against him for 
 a certain sum, under subd. 15, sec. 64 of the 
 Code, entitles the defendant to costs on recovery 
 by the plaintiff of less than tlie sum offered. 
 Sup. Ct., 1871, Niagara Falls Suspension Bridge 
 Co. V. Bachman, 4 Lans. 523. 
 
 63. Where, after offer of judgment in due 
 form, in a foreclosure action, the plaintiff re- 
 covered a sum slightly in excess of the offer, 
 wliich, on appeal to the General Term, was 
 reduced to a sum less tlian the offer, — Held that 
 the plaintiff was entitled to full costs but not to 
 an extra allowance. Ct. App., 1874, Penfield v. 
 James, 56 N. Y. (11 Sic-k.) 659. 
 
 64. Where, on appeal from a judgment, more 
 favorable to plaintiff than a previous offer by 
 defendant, the Court of Appeals affirmed such 
 judgment in part and reversed in part, without 
 costs to either party there, the judgment as 
 modified being less favorable to plaintiff than 
 
 —such offer, — Held, that the defendant was entitled 
 to all costs subsequent to his offer, except in the 
 Court of Appeals, including costs of an appeal 
 to the General Term ; also that the discretion as 
 to costs in such cases, given by sec. 306 of the 
 Code, was to the appellate court alone. Ct. App., 
 1874, Sturgis v.Spofford, 58 N. Y. (13 Sick.) 103. 
 
 65. Interest ou offer. In an action for un- 
 liquidated damages, where defendant offers 
 judgment for a specific sum, the plaintiff is en- 
 titled to costs if he recovers more than the 
 amount offered, although that amount with 
 interest from tlie time of the offer would exceed 
 the recovery. Com. App., 1874, Johnston v. 
 Catlin, 57 N. Y. (12 Sick.) 652. 
 
 66. Title to land iu question. In an ac- 
 tion for trespass on land, a plea of license does 
 not raise a question of title to land, and for the 
 purpose of determining who was entitled to 
 costs, the General Term will assume that the 
 question of title was not raised on the trial un- 
 less that fact is certified to by the judge who 
 tried the cause, his certificate being the only 
 competent evidence of that fact. Sup. Ct., 1872, 
 Turner v. Van Riper, 43 How. 33. 
 
 67. The provision of sec. 8, title 1, ch. 10, part 
 
 3, R. S. (2 Edm. Stats. 636), giving costs to 
 plaintiff, upon recovery of a judgment in ac- 
 tions relating to real estate, or in which titles or 
 rights in lands have been put in issue, or have 
 come in question, without regard to the amount 
 of the recovery, is repealed by implication by 
 the Code, being inconsistent therewith. lb. 
 
 68. An action for a trespass on land, in which 
 no question of title is raised by the pleadings or 
 on the trial, is one of which a justice of the 
 peace has jurisdiction, and is an action for the 
 recovery of money only, and if the plaintiff in 
 such an action recovers less than $50 damages, 
 he is not entitled to costs. lb. 
 
 69. If in an action to recover treble damages 
 for trespass on land, brought pursuant to title 6, 
 ch. 5, part 3, B. S. (2 Edm. Stats. 349), no ques- 
 tion of title is raised, and the plaintiff recovers 
 only $5 damages, the defendant is entitled to 
 costs, although the plaintiff claimed $1080, in 
 his complaint. lb. 
 
 70. In an action for an assault and battery 
 where the title to land is put in issue by the 
 pleadings or comes in question on the trial, if 
 the plaintiff recovers damages, although less 
 than fifty dollars, he is entitled, on a proper cer- 
 tificate from the judge, to full costs. Cort. Co. 
 Ct., Lillis V. 0' Conner, 49 How. 497. 
 
 71. Section 304 of the Code does not, either 
 expressly or by implication, repeal the provis- 
 ions of the Bevised Statutes on that subject, 
 lb. 
 
 72. In an action of trespass for entering prem- 
 ises occupied by plaintiff and removing furni- 
 ture, where the defendant justifies on the 
 ground of the plaintiff's refusal to pay rent un- 
 der a verbal lease, and the case is tried upon the 
 issue of the plaintiff's right of possession thus 
 raised, such issue involves title to real property, 
 and the plaintiff is entitled to costs if he recov- 
 ers, although no more than twenty-five dollars. 
 Sup. Ct, Sp. T., 1874, Powers y. Conray, 47 How. 
 
 78. In an action wherein the complaintal- 
 leges that the plaintiff is the owner of certain 
 premises, and the defendant her tenant, and 
 that such tenant hai wrongfully injured the 
 premises, to the damage and injury of her re- 
 versionary interest and the answer denies each 
 and every allegation of the complaint, the title 
 to the premises is put in issue, and if the plain- 
 tiff recovers a verdict for damages, he is entitled 
 to costs. N. Y. Supr. Ct., 1873, Dempsey v. Hall, 
 35 N. Y. Supr. (3 J. & Sp.) 201. 
 
 74. Where, in an action of trespass, first 
 brought in justice's court, but, ou defendant's 
 pleading title to a portion of the premises, dis- 
 continued there and brought again in the Su- 
 preme Court, tlie same pleadings being had in 
 the latter court, the defendant succeeds upon 
 the issues affecting the premises to which title 
 was pleaded, but judgment is rendered against 
 him upon the other issues for nominal damages, 
 he is entitled to costs. Com. App., 1872, Morss 
 V. Salisbury, 48 N. Y. (3 Sick.) 636. 
 
 75. To abide event. An order opening an 
 inquest, costs of the inquest and of the motion 
 to abide the event, makes the plaintiff's right to 
 costs contingent upon his recovering a judg- 
 ment in the action which will entitle him by law 
 to costs, and if the claim is one which might 
 have been sued in a justice's court, and he re- 
 covers less than fifty dollars, he is not entitled 
 to such costs. Sup. Ct., 1875, New v. Anthony, 
 4 Hun, 52. " 
 
 70. Quo warranto. A proceeding under ch. 
 2, title 13, of the Code, in the nature of a quo 
 
COSTS. 
 
 199 
 
 wairanto, is a civil action, and the prevailing 
 party therein is entitled to costs. Ct. App., 1878, 
 People ex rel. Furman v. Clute, 52 N. Y. (7 Sick.) 
 5.76. 
 
 7.7. Where the complaint in such a proceed- 
 ing alleges that the defendant has usurped the 
 office and that relator is entitled thereto, issue 
 being taken upon both allegations by the an- 
 swer, and judgment is entered ousting defend- 
 ant from the office, the relator is the prevailing 
 party, and as such entitled to costs, although 
 the same judgment declares that he is not enti- 
 tled to the office. lb. 
 
 78. Reference as to surplus. A reference 
 to ascertain the rights of claimants to surplus 
 moneys in a mortgage forecIosure*qsse is a spe- 
 cial proceeding, and costs may be allowed in the 
 discretion of the court, at the rates allowed by 
 the Code for similar services in civil actions. 
 Sup. Ct. Sp. T., 1612, Elwell v. Robbins,iZ How. 
 108. 
 
 79. In such a case, the claimants are entitled 
 to disbursements, such as clerk's and referee's 
 fees, and to taxable costs, and also motion costs 
 not exceeding $10 for each motion may be al- 
 lowed by the court under sec. 315 of the Code, 
 
 .and in some cases possibly a trial fee might be 
 allowed, the same to be paid out of the surplus 
 funds. lb. 
 
 80. Summons for relief. A party who 
 commences a suit by summons for relief, in- 
 tending to bring an action for fraud, but in fact 
 complains on a promissory note, is entitled only 
 to the same costs as if he had properly com- 
 menced by a summons for money. Sup. Ct. Sp. 
 T., 1873, Young v. AUyn, 45 How. 442. 
 
 V. In Equity Cases. 
 
 81. Discretionary. Costs in a court of 
 equity do not depend upon any statute, nor do 
 they absolutely depend upon the determination 
 of a cause, but they rest in a sound discretion 
 to be exercised upon a thoughtful consideration 
 of all the circumstances of the case. N. Y. Supr. 
 Ct, 1874, Belmont v. Ponvert, 38 N. Y. Supr. (6 
 J. & Sp.) 425. S. P. Church v. Kidd, 3 Hun, 254. 
 
 82. In an action against the executors of a de- 
 ceased partner, to charge his estate with the 
 firm debts, the giving or withholding of costs is 
 in the discretion of the court, and will not be re- 
 viewed on appeal. Ct. App., 1870, Biper y. Pop- 
 penhausen, 43 N. Y. (4 Hand,) 68. 
 
 83. Action for accounting. In an action 
 in equity for an accounting and distribution of 
 rents received, between co-tenants of land, tried 
 before a referee, the costs are in the discretion 
 of the referee, and where he finds and orders 
 judgment in favor of the plaintiffs and certain 
 of the defendants for their respective shares of 
 such rents, but. does not decide anything re- 
 specting the costs of the action, the plaintiff has 
 no right to tax the costs and enter them in his 
 judgment. Sup. Ct. Sp. T,, 1873, Phelps v. 
 Wood, 46 How. 1. 
 
 84. A court of equity has no jurisdiction to 
 award costs, independent of statutory authority, 
 and cannot, in an action between partners for 
 an* accounting, direct the payment of counsel 
 fees by a receiver, pendente lite, to plaintiff's at- 
 torney. N. Y. C. P., Sp. T., 1870; Struthers v. 
 Christal, 3 Daly, 327. 
 
 85. Extra allo'wance. In an action by one 
 joint owner of a vessel against his co-owners for 
 an accounting, the court may in its discretion 
 grant an extra allowance of costs, although no 
 answer is filed ; and such discretion is not sub- 
 
 ject to teview. Ct. App,, 1874, Darling t. Brew- 
 ster, 55 N. Y. (10 Sick.) 667. 
 
 VI. Taxatiok. 
 
 86. Duty of clerk. In an action tried before 
 a referee, the clerk, upon taxation of costs, has 
 no power to inquire whether or not the referee's 
 report was regularly obtained ; but, until prop- 
 erly vacated or set aside, such report stands 
 before him as the mandate of the court, and he 
 is bound to obey it. Ct. App., 1874, Ballou v. 
 Parsons, 55 N. Y. (iO Sick.) 673. 
 
 87. The only duty the clerk is required or 
 permitted to perform, in relation to the costs,, 
 is to ascertain and determine what items of 
 costs and disbursements the party presenting 
 costs for adjustment is, by law, entitled to. The 
 question whether such party is entitled to re- 
 cover any costs is for the court, not the clerk, 
 to determine. Sup. Ct., 1871, Bailey v. Stone, 
 41 How. 346. 
 
 88. It is the duty of the clerk to adjust any 
 bill of costs presented to him ; but it is not his 
 duty to insert the costs, so adjusted, in the 
 judgment, unless there is a verdict of a jury, 
 report of a referee, or order of the court, award- 
 ing costs to the party presenting such bill. lb. 
 
 89. Taxation by judge. Under the pro- 
 visions of title 7, sec. 1, of the charter of 
 Albany, a judge of a court of record may 
 proceed to tax the costs of proceedings for 
 opening a street, either ex parte, or upon 
 such notice«to tax-payers or others as he may 
 deem proper; but the court, at Special Term, 
 has power to vacate the ex parte taxation, upon 
 application of a tax-payer, on proof that the bill 
 is, in some of its items, illegal, and in others ex- 
 cessive, and that the officer, upon whose motion 
 it was made, represented himself instead of the 
 city and its tax-payers. Sup. Ct., 1874, Hudson 
 Avenue, In matter of, 2 Hun, 580. 
 
 90. On amendment. There being no statu- 
 tory allowance for costs on amendment of com- 
 plaint, if such costs were allowed by some order, 
 the evidence thereof should be produced upon 
 the taxation. N. Y. Supr. Ct., 1873, Broivn v. 
 Windmuller, 14 Abb. N. S. 359 ; S. C, 36 N. Y. 
 Supr. (4J. &Sp.)75. 
 
 91. Double. Where double costs are allowed 
 by law (2 R. S. 617, sec. 24 ; 2 Edm. Stats. 640), 
 they are to be computed upon the whole taxed 
 bill, including disbursements. Sup. Ct. Sp. T., 
 1873, Klinck v. Kdly, 15 Abb. N. S. 135. S. P. 
 Boys V. Willet, id. 136, note. 
 
 92. Frivolous demurrer. Upon the decision 
 of a motion at Special Term for judgment on 
 account of the frivolotisness of a demurrer, the 
 prevailing party is entitled to tax only a motion 
 fee. N. Y. Supr. Ct. Sp. T., 1875, Whitman v. 
 Nicol, 49 How. 88. 
 
 93. If, on such motion, the demurrer is set 
 aside as frivolous, and judgment is entered, and 
 an appeal is taken from both the order and the 
 judgment, the appellant, if successful, is enti- 
 tled to the full costs of an appeal from a judg- 
 ment, lb. 
 
 94. Separate bills, when alloiwable. Sep- 
 arate bills of costs are allowable, where two 
 suits are tried together but not consolidated, 
 though perhaps only one trial fee is charge- 
 able. Sup. Ct., 1871, Eildebrant v. Crawford, 6 
 Lans. 602. 
 
 95. Where there are several defendants not 
 united in interest, but making separate defenses 
 by separate answers, an award should be made 
 by the court in respect to costs, and a taxation 
 
200 
 
 COSTS. 
 
 of bills of costs in favor of each without such 
 an award will be set aside as irregular. Sup. 
 Ctl Sp. T., 1874, Williams v. Blumer, 49 How. 12. 
 
 96. Where two defendants, appearing by the 
 same attorney, separately demurred to the com- 
 plaint, .and the Special Term gave judgment on 
 demurrer in favor of one defendant and against 
 the other, but the General Term on appeal gave 
 judgment in favor of both defendants, — Seld, 
 that they were entitled to tax separate bills of 
 costs. Sup. Ct., 1874, Miller v. Coates, 2 Hun, 668. 
 
 97. All that is meant by subd. 2, sec. 306, of 
 the Code is, that if one or more of the defend- 
 ants succeed, he or they maj', in the discretion 
 of the court, have costs. It does not mean, nor 
 can the court so award, that they shall or may 
 have separate bills. N. Y. Supr. Ct., 1874, Haye 
 V. Robertson, 38 N. Y. Supr. (6 J. & Sp.) 59 ; S. C, 
 15 Abb. N. S. 194. 
 
 98. Where two defendants, in an action for the 
 recovery of specific personal property, appear 
 by the same attorney and put in separate an- 
 swers, setting up substantially the same defense 
 in each, and the complaint is dismissed as to 
 one and judgment rendered in favor of the 
 other, they are' not entitled to have separate 
 bills of costs taxed. lb. 
 
 99. Two bills of costs will not ordinarily be 
 allowed where several defendants appear by the 
 same attorneys, or by different attorneys who are 
 partners or occupy the same oflBce, putting in 
 substantially tlie same defense, but they are 
 sometimes allowed to the extent of the increased 
 services performed necessarily or properly in the 
 cause. Thus, where sixteen months elapsed be- 
 tween the service of tlie summons and complaint 
 upon the two defendants respectively, and they 
 were obliged to put in separate answers, though 
 by the same attorneys, on judgment in their favor, 
 each defendant was allowed costs before notice 
 of trial and disbursement prior to issue by the 
 last answer. Sup. Ct., Sp. T., 1872, Lindslay v. 
 Deafendarf, 43 How. 90. 
 
 100. Where several defendants, who appeared 
 by separate attorneys-and answered separately, 
 join in an appeal to the General Term, and the 
 judgment is there reversed and a new trial 
 ordered, with costs to each of the appealing 
 parties, and the latter order is affirmed on appeal 
 to the Court of Appeals, and judgment absolute 
 rendered in favor of tlie defendants with costs, 
 they are entitled to one bill of costs to the reco- 
 very of tl.e judgment, and each defendant to a 
 separate bill on the appeal to the General Term, 
 and to a joint bill on the latter appeal. Sup. Ct., 
 1873, Von Kellar v. Schtilting, 45 How. 139. 
 
 101. Taxable items. On appeal from an 
 order of the. County Court granting a new trial 
 in an action in that court, upon a case and ex- 
 ceptions there made, the items of $20, before 
 argument, and $40 for argument, cannot be 
 allowed on taxation of costs. Such a case is 
 expressly excepted from the operation of subd. 
 5, sec. 307, of the Code, by the amendment of 
 that subdivision enacted in 1867 (seo. 13, ch. 781, 
 Laws 1867; 7 Edm. Stats. 166). Sup. Ct., 1872, 
 Woodbury v. Morton, 44 How. 56. It makes no 
 difference whether the motion for a new trial 
 was before or after judgment was perfected. 
 Sup. Ct., 1872, Crosby v. Brown, 44 How. 149. 
 
 102. Where, in such a case, the General Term 
 did not award costs in disposing of the appeal, 
 the plaintiff is not entitled to the usual motion 
 costs. lb. 
 
 103. Where the court directed a verdict for 
 plaintiff, but reserved the case for further con- 
 sideration, giving defendant leave to move for 
 
 a new trial on a case to be made and settled in 
 the usual form, and the defendant made such 
 motion on notice at a Special Term before the 
 same judge, without waiting for any action of 
 the court upon the verdict, and was defeated, 
 the plaintiff's motion for judgmeJit on ttie ver- 
 dict being heard at the same time and granted, 
 — Seld, that the plaintiff was entitled to costs, 
 as on an ordinary motion for a new trial on a 
 case, before argument $20, and for argument 
 $40. Sup. Ct. Sp. T., 1871, Rousso v. Vontrin, 
 41 How. 8. 
 
 104. Commissioner's fees, upon a com- 
 mission ordered by the Special Term to take 
 the deposition of the plaintiff at his residence 
 in a foreigp- country, are not a necessary dis- 
 bursement ; it being competent for him to attend 
 in person at the trial and be examined on his 
 own behalf, in which case he would, not be^ en- 
 titled to any fees. N. Y. Supr. Ct. Sp. T., 1875, 
 Delcomyn v. Chamberlain, 48 How. 409 ; Aff'd, 
 S. C, 39 N. Y. Supr. (7 J. & Sp.) 359. 
 
 105. The proper place to object to such a 
 charge is before the taxing officer, whp is re- 
 quired to examine the charges and disallow 
 such as are unreasonable or unnecessarily in- 
 curred ; but the more convenient practice would 
 be for the court to settle the question in the 
 order granting the commission, as it has power 
 to do. lb. 
 
 106. Counsel fees. In an action by execu- 
 tors for the construction of a will, the Special 
 Term of the Supreme Court has power to make 
 them an allowance for counsel fees. Whether 
 the Court of Appeals can review, on appeal, the 
 amount of sucji allowance, doubted. Ct. App., 
 1878, Wetmore v. Parker, 62 N. Y. (7 Sick.) 450 ; 
 Aff'g S. C, 7 Lans. 121. 
 
 107. Copy of stenographer's minutes. 
 Where a party did not order a copy of tlie ste- 
 nographer's minutes from day to day, and did 
 not appeal from a judgment against him, and 
 nothing appeared to show the necessity thereof, 
 — Held, that the expense of such copy was not a 
 proper disbursement. Sup. Ct., 1875, Kahn v. 
 Norrie, 4 Hun, 72. 
 
 108. Where a cause is tried several t mes, a 
 charge for a copy of the stenographer's minutes 
 of the first trial is not taxable. N Y. Supr. Ct, 
 Sp. T., 1878, Spriny v. Day, 44 How. 390. 
 
 109. Defendants appearing. If defendants 
 not served with process voluntarily appear by 
 attorney in the action, and the plaintiff recovers 
 judgment, he is entitled, under subd. 1, sec. 307, 
 of the Code, to have taxed $2 for each such 
 defendant, not exceeding ten, the same as if 
 they had been served with process. Buff. Supr. 
 Ct., Sp. T., ISlS.Schwinger v. Bickox, 46 How. 114. 
 
 110. Expenses on subpcenaes. Expens^ 
 incurred by a party in serving subpdenaes oh 
 witnesses are not taxable as necessary disburse- 
 ments, under sec. 311 of the Code. Sup. Ct., 
 1875, Town of Pierrepont v. Lovelass, 4 Hun, 681. 
 
 111. Interest. Upon affirmance of the judg- 
 ment of an inferior court on appeal to the Gene- 
 ral term of the Supreme Court, with costs, the 
 respondent is entitled to have interest on the 
 judgment below from the time of its rendition 
 to the time of entering judgment of affirmance, 
 taxed by the clerk and inserted with the costs of 
 appeal. Sup. Ct., Sp. T., 1872, Buck v. City of 
 Lockport, 43 How. 283. 
 
 112. Where a judgment for plaintiff in a 
 j Qstice's court, was reversed in the county court 
 and an order for a new trial obtained by plain- 
 tiff was affirmed by the Supreme Court on 
 appeal, — Held, that under a stipulation between 
 
COSTS. 
 
 201 
 
 the partiea upon the latter appeal, that in case 
 the defendant was defeated therein and the 
 court refused to allow him to appeal to the Court 
 of Appeals, the plaintiff might enter judgment in 
 the action against the defendant " for the 
 amount of the judgment rendered hy the justice 
 with costs of this action to be taxed," the plain- 
 tifi was not entitled to tax interest on the justice's 
 judgment, as none was given by the terms of 
 the stipulation, and such judgment did not draw 
 interest after the appeal was taken therefrom. 
 Sup. Ct., 1872, Woodbury v. Morton, 44 How. 56. 
 113. -If a judgment be modified and reduced 
 in amount as to the damages, after the costs 
 have been taxed, including interest on such 
 damages from the recovery to the entry of judg- 
 ment, only the interest on the damages as modi- 
 fied should be retained in the costs. Sup. Ct., 
 1872, Mann'^. Neto York Central, etc., R A Co., 
 12 Abb. N. S. 380. 
 
 114. Interrogatories. The allowance given 
 by subd. 3, sec. 807 of the Code " for drawing 
 interrogatories to annex to a commission for the 
 taking of testimony," is for the entire number of 
 interrogatories to be annexed to one commis- 
 sion, and not for any specific sets addressed to 
 the same or to different witnesses ; consequently 
 a party who examines several witnesses under 
 the same commission, though under separate 
 sets of interrogatories, is entitled to tax there- 
 for only $10. N. Y. Supr. Ct, 1874, O'Brien v. 
 Commercial F. Ins Co., 38 N. T. Supr. (6 J. & 
 Sp.) 4. 
 
 115. Referees fees. In the absence of any 
 agreement in writing fixing a different com- 
 pensation, a referee cannot lawfully claim more 
 ttian S3 for every day personally spent by him 
 in the business of the reference. A notice 
 that he should charge a larger sum with a ver- 
 bal consent of tlie parties is not sufiicient. N. 
 Y. C. P., 1878, Toumsendr. Peyser, 45 How. 211 ; 
 S. C, 14 Abb. N. S. 324 ; 4 Daly, 556. 
 
 116. Where there is no stipulation as to 
 referee's fees, it is incumbent upon the success- 
 ful party to show afltomatively the number of 
 days the referee was actually employed, and 
 that his fees for that time, at the rate of $3 
 per day, would make the sum cliarged. Ct. 
 App., 1872, Watson v. Gardiner, 50 N. Y. (5 
 Sick.) 672. 
 
 117. Referee's fees may be taxed at the rates 
 stipulated by the parties, although largely in 
 excess of the legal rate ; but in all cases where 
 opposition is made, the clerk should require 
 satisfactory proof by afBdavit of the number of 
 days the referee necessarily attended and spent 
 in the business of the reference. The ordinary 
 affidavit of disbursements is not sufficient. N. 
 Y. Supr. Ct., 1873, BroVM v. Windmuller, 14 Abb. 
 N. S. 359 ; S. C, 36 N. Y. Supr. (4 J. & Sp.) 75. 
 
 118. Sheriffs fees. But one fee of fifty 
 cents can be taxed in favor of the sheriff, for 
 receiving and entering an execution in his books 
 and searching for property. Sup. Ct., Sp. T., 
 1872, Buck v. City of Lockport, 48 How. 283. 
 
 119. The taxation of a sheriff's fees on execu- 
 tion cannot be had upon requisition of the sheriff 
 himself, but only when required by the defend- 
 ant in execution ; and in no case is he entitled 
 to have taxed the expenses of a keeper employed 
 by him to watch the goods levied upon. "The 
 power of taxation is confined to charges for 
 business done in court in the progress of a cause, 
 except where the statute making an allowance 
 authorizes such taxation. N. Y. C. P., 1870, 
 Lynch v. Meyers, 3 Daly, 256. 
 
 120. Term fees. A term fee of $30 is taxable 
 
 for each trial of an issue of fact, where there is 
 more than one, even though upon one of them 
 the jury disagreed. N. Y. Supr. Ct., Sp. T., 1878, 
 Spring v. Day, 44 How. 890. 
 
 121. A charge of $15, for services after notice 
 and before trial, not in all exceeding five term 
 fees, is taxable for each trial ; and where each 
 trial occupied more than two days, an additional 
 $10 may be allowed for each. lb. 
 
 122. Only five term fees can be allowed under 
 subd. 7, sec. 307 of the Code. Sup, Ct. Sp. T., 
 
 1873, Klinck v. Kelly, 15 Abb. N. S. 135. 
 
 123. Before allowing term fees in a case tried 
 by a referee, the clerk should be satisfied that 
 the cause was " necessarily on the calendar " for 
 the terms charged before the reference was 
 ordered. N. Y. Supr. Ct., 1873, Brown v. Wind- 
 muller, 14 Abb. N. S. 359 ; S. C, 36 N. Y. Supr. 
 (4J. &Sp.)75.' 
 124. On tlie adjustment of costs in a cause 
 
 decided in the Court of Appeals, more than one 
 term fee per annum may be allowed. Sup. Ct., 
 Macy v. Nelson, 49 How. 204. 
 
 125. Trial fee. If a case noticed for trial and 
 placed on the circuit calendar is then discon- 
 tinued before trial, a trial fee of $30 should not 
 be alloTv ed. Sup. Ct., Sp. T., 1873, Agricultural 
 Ins. Co. V. Bean, 45 How. 444. 
 
 126. A trial fee is allowable only when there 
 is a judicial examination of the issues. Where 
 the court, after a jury had been impanneled, and 
 a witness sworn and examined, ordered that the 
 case be referred to a referee to hear and deter- 
 mine, — Held, that there ^as no trial. Sup. Ct., 
 
 1874, Third Nat. Bank of Syracuse v. McKinstni, 
 2 Hun, 443. 
 
 127. Where, after issue joined and notice of 
 trial, the defendant served an offer of judgment 
 and notice of withdrawal of answer, but the 
 plaintiff, six days thereafter, took an inquest and 
 entered judgment for the amount claimed, with 
 costs, — Held, that he was entitled to a trial fee 
 as for the trial of an issue of fact. Sup. Ct., 
 
 1875, Hawley v. Davis, 6 Hun, 642. 
 
 128. Witness fees. No fees should be al- 
 lowed to the county clerk for attendance as a 
 witness, when he is in attendance as clerk, and 
 was not paid or sworn as a witness, and did not 
 produce any paper or document for the party. 
 Sup. Ct., Sp. T., 1878, Agricultural Ins. Co. v. 
 Bean, 45 How. 444. 
 
 129. Nor should witness fees be allowed an 
 attorney who is' not sworn, though subpoenaed 
 and not employed in the case, unless it be shown 
 that he attended the court as a witness and not 
 as an attorney. lb. 
 
 180. The clerk should not allow fees for wit- 
 nesses who were not sworn, without proof that 
 they were subpoenaed, or their attendance pro- 
 cured in good faith, and that they were deemed 
 material and necessary ; and the facts expected 
 to be proved by them should be shown, and the 
 reason why they were not sworn should be ex- 
 plained, lb. 
 
 131. It should also be shown that it was ne- 
 cessary for the witnesses to travel, and that they 
 did in fact travel by the usually travelled routes 
 the distances charged for them. lb. 
 
 132. Witnesses who reside in the place where 
 the court is held, and do not attend as witnesses 
 except when called or when the case is tried, 
 should be allowed only for the days they actually 
 attended as such. lb. 
 
 183. It is a strong circumstance against the 
 allowance of fees for a witness that his fees are 
 not paid in advance or daily, or his expenses 
 paid by the party who subpoenaed him. lb. 
 
202 
 
 COSTS. 
 
 184. A party who pays fees to witnesses after 
 the case is disposed of in his favor, for which he 
 is not legally liable, cannot be allowed therefor, 
 lb. 
 
 136. Witnesses subpoenaed for the purpose of 
 impeaching an expected adverse witness, but not 
 used, cannot be allowed for without showing 
 reasonable grounds for believing that such wit- 
 ness would be sworn, and that the persons 
 subpoenaed for that purpose would have im- 
 peached him. lb. 
 
 136. Extra alloiwanoe. The further allow- 
 ance provided for by sec. 309 of the Code, is in 
 addition to costs, and can be given only to a 
 party who is entitled to costs as a matter of 
 right. N. Y. C. P. Sp. T., 1873, Devlin v. Mayor, 
 etc. of New Ycrh. 15 Abb. N. S. 31. 
 
 137. In an action by a party claiming a share 
 in a certain fund to recover his ' share, one who 
 is made defendant as claiming a share in said 
 fund, and answers setting up his claim and ob- 
 taining judgment therefor as against his co- 
 defendants, is not entitled to costs, and therefore 
 not to any allowance under that section. lb. 
 
 138. The plaintiff in such action on recover- 
 ing judgment for his share, may have a fur- 
 ther allowance under that section, but it can be 
 computed only on his share, not on the whole 
 fund. lb. 
 
 139. A plaintiff is not entitled to such an al- 
 lowance on the amount of a counterclaim de- 
 feated by him, in addition to one on his recov- 
 ery, if the counterclaim was defeated by the 
 same evidence which was necessary to sustain 
 his recovery. lb. 
 
 140. To entitle the prevailing party to an ex- 
 tra allowance, it is not necessary that a trial 
 should have been had ; but it is sufficient that 
 a defense has been interposed. Nor is any 
 notice required, other than an order to show 
 cause why the moving party should not have 
 costs and other relief. N. Y. Supr. Ct., 1869, 
 Carter v. Clarh, 2 Sweeny, 189. 
 
 141. There is reason to believe that the legis- 
 lature intended by the use of the word "de- 
 fense " something more than an answer or de- 
 murrer interposed, otherwise they would have 
 used the term answer or demurrer. N. Y. Supr. 
 Ct., 1876, Eldridge v. Strem, 39 N. Y. Supr. (7 
 J. & Sp.) 296. 
 
 142. An extra allowance cannot properly be 
 given where the rights in controversy have no 
 money value. Sup. Ct., 1871, People v. Albany 
 and Susq. R. R. Co., 6 Lans. 26. S. P. Coates v. 
 Goddard, 34 N. Y. Supr. (2 J. & Sp.) 118. 
 
 143. Under sec. 309 of the Code as amended 
 in 1865, an extra allowance is authorized in all 
 cases which are difficult and extraordinary, 
 when a defense has been interposed and a trial 
 had ; and the court has power to grant such al- 
 lowance even where, after defense interposed, 
 the defendant has made an offer of judgment, 
 which has been accepted. N. Y. Supr. Ct., 1871, 
 Coates v. Goddard, 34 N. Y. Supr. (2 J. & Sp.) 
 118. 
 
 144. No money value can be assigned to a 
 trademark as distinct from the value of the arti- 
 cle to which it is applied ; and no extra allow- 
 ance can be granted in an action to restrain the 
 use of such trademark. lb. 
 
 145. The amount really in dispute is the basis 
 for the aUowance provided for by the Code, and 
 where counsel at or previous to the trial fix the 
 amount in dispute at a certain sum, the extra al- 
 lowance must be based upon that sum. Sup. Ct. 
 Sp. T., 1874, Board of Commisioners of Pilots r. 
 ^afford, 47 How. 479. 
 
 146. In an action on a covenant to restrain the 
 erection of a building and for damages, an extra 
 allowance cannot be computed on the value of 
 the premises. Ct. App., 1871, Atlantic Dock Co. 
 V. Libby, 46 N. Y. (6 Hand.) 499. 
 
 147. An action brought for the purpose of hav- 
 ing certain deeds of very valuable lands declared 
 to be mortgages, and that the defendant held the 
 title as trustee, which was decided in favor of 
 the defendant, — Held to come within the provi- 
 sions of see. 809 of the Code as it now stands 
 amended. Sup. Ct., 1872, Burke v. Candee, 63 
 Barb. 552. 
 
 148. The basis for estimating the allowance, 
 in such a case, is the value of the property di- 
 rectly affected by the judgment ; and tlie court 
 must fix the amount to be allowed, with refer- 
 ence to the indemnity needed for actual ex- 
 penses, necessarily or reasonably incurred in the 
 action above taxa,ble costs. lb. 
 
 149. An action affecting property of the value 
 of $30,000, and involving the consideration of 
 the law of trusts and trustees ; the trial of which 
 lasted thirty days, and required the examination 
 of numerous witnesses and production of nume- 
 rous documents and private writings, and the ex- 
 penditure of an equal amount of time by counsel 
 in preparation for trial, — Held to be a case both 
 " extraordinary " and " difficult," within the pro- 
 vision of the Code permitting a further allowance 
 to the prevailing party. lb. 
 
 150. In an action to secure to plaintiff a one- 
 fourth interest in a lease, an extra allowance, if 
 made, should be based not upon the value of the 
 entire lease, but upon that of the one-fourth in- 
 terest claimed. Com. App., 1872, 'Struthers v. 
 Pearce, 51 N. Y. (6 Sick.) 365. 
 
 161. Appeal from surrogate. The Supreme 
 Court has power, under sec. 318 of the Code, to 
 grant an extra allowance in a case appealed from 
 the surrogate's court, although an allowance has 
 already been made by the surrogate^ the appel- 
 late court being pro hoc vice made the court of 
 original jurisdiction in respect to costs. Sup. Ct., 
 1874, Dupuy V. Wurts, 47 How. 225 ; S. C, 1 Hun, 
 119. 
 
 152. In actions only. The provisions of sec. 
 309 of the Code, authorizing an extra allowance 
 of costs in certain cases, applies to actions only, 
 and not to special proceedings. Ct. App., 1878, 
 Rensselaer and Saratoga R. R. Co. v. Davis, 55 N. 
 Y. (10 Sick.) 146. 
 
 153. Determination of claims to real 
 property. The court may, in its discretion, 
 award an extra allowance of costs to the plaintiff 
 in an action under the Code to determine claims 
 to real property. Com. App., 1871, Fisher v. 
 Hepburn, 48 N. Y. (3 Sick.) 41. 
 
 154. On final judgment only. The extra al- 
 lowa,nce provided for by sec. 309 of the Code, can 
 be given only on the entry of a final judgment. 
 When payment of costs is imposed by the court 
 as a condition of granting a favor, only such 
 costs can be allowed as are particularly specified 
 by the sections of the Code fixing the rate recov- 
 erable, and follow, of course, to the party enti- 
 tled and require no order of the court. N. Y. 
 Supr. Ct., 1873, Merchants Exch. Nat. Bank of 
 N. Y. V. Commercial Warehouse Co. of N. Y., 35 
 N. Y. Supr. (3 J. & Sp.) 214. 
 
 155. Where the Court of Appeals orders judg- 
 ment for the plaintiff, unless the defendant, 
 within 20 days after filing the remittitur in the 
 court below, shall answer the complaint, and pay 
 the costs of the action from the time of putting 
 in the demurrer, the plaintiff is not entitled to 
 an extra allowance before final judgment. lb. 
 
COSTS. 
 
 203 
 
 156. Foreclosure. The costs in an action to 
 foreclose a mortgage are governed by sec. 308 of 
 tlie Code, except in a case which is difficult or 
 extraordinary, wliere a defense was interposed 
 or a trial had, when by sec. 309 an allowance not 
 exceeding two and one-half per cent, may be 
 made. Ct. App., 1875, Hunt v. Chapman, 49 
 How. 377. 
 
 157. Judgment for frivolousness. On a 
 judgment ordered for plaintiff on the ground of 
 the frivolousness of defendant's demurrer, he is 
 entitled to an extra allowance sufficient to reim- 
 burse him for the additional trouble and expense 
 occasioned by such demurrer. Sup. Ct. Sp. T., 
 1874, First National Bk. of Plattslurgh v. Bush, 47 
 How. 78. 
 
 158. Neiv judgment. Where, after judgment 
 had been entered in the Supreme Court in ac- 
 cordance with the direction of the Commission of 
 Appeals, the remittitur was by order of the latter 
 court returned to it, and a motion for a reargu- 
 ment was made and denied, — Held, that it was 
 necessary to enter a new judgment in the Su- 
 preme Court, and an extra allowance to the pre- 
 vailing party was properly granted. Sup. Ct., 
 1874, Trimm v. Marsh, 2 Hun, 383. 
 
 159. Specific peiformance. An allowance 
 of $60, in an action for specific performance 
 wherein the power of the plaintiff as executors 
 to convey was put in issue, and the will in- 
 troduced and considered for the purpose of de- 
 termining that question, — Held proper, it being a 
 difficult case in which a defense was interposed. 
 Sup. Ct. Sp. T., \?nz,- McMulkin v. Hooey, 46 
 How. 405. 
 
 160. Plaintiffs right, how barred. An offer 
 to allow judgment, under sec. 385 of the Code, 
 may be made in an action to foreclose a mortgage, 
 and if made will cut off the plaintiff's right to an 
 extra allowance under sec. 309. Such offer must 
 be in writing at least 10 days before the trial or 
 verdict. N. Y. C. P., Sp. T., 1875, Astor v. Pal- 
 ache, 49 How. 231. 
 
 161. A mere tender of the amount due, with 
 costs to the date thereof, will not have that ef- 
 fect, lb. 
 
 162. To defendant. Although a defendant 
 is entitled to costs from the time he offered to 
 allow the plaintiff to take a judgment, if the lat- 
 ter does not recover a more favorable judgment, 
 yet he is not entitled to an extra allowance, even 
 though the action be a difficult and extraordina- 
 ry one. N. Y. Supr. Ct., Sp. T., 1873, Magnin v. 
 Dinsmore, 47 How. 11. 
 
 163. A recovery by defendant of judgment 
 for the costs accruing subsequent to an offer to 
 allow judgment to be taken against him, may 
 under proper circumstances be the basis for an 
 allowance under sees. 308, 309 of the Code. Sup. 
 Ct., 1874, Board of Commissioners of Pilots v. 
 Spofford, 3 Hun, 67. 
 
 164. The costs which either party may be en- 
 titled to recover under sec. 385 of the Code, in- 
 clude the allowance which may be given by the 
 court. lb. 
 
 165. A defendant who succeeds in the action, 
 although defeated upon some important ques- 
 tions contested by him, ought not to be granted 
 an extra allowance on account of such questions. 
 S. C. 4 Hun. 74. 
 
 166. A defendant who Iiad adjusted his costs 
 on appeal, and had such adjustment affirmed by 
 the Court of Appeals, after disallowance of part 
 by the General Term, cannot abandon the bill so 
 adjusted, and commence anew for the purpose of 
 seeking an allowance. lb. 
 
 167. On discontinuance. Where a plain- 
 
 tiff discontinues his action before trial on pay- 
 Hient of costs, the defendant is entitled to tax 
 final costs in the action, and if the case is dif- 
 ficult and extraordinary, an additional allowance 
 may be made under sec. 309 of the Code. Sup. 
 Ct., 1875, Coffin v. Coke, 4 Hun, 616. 
 
 168. Under an order made on plaintiff's mo- 
 tion at Special Term, that the cause be discon- 
 tinued on his paying defendant's costs to be 
 taxed and any aUowanue which may be made 
 him, the defendant is entitled to enter judgment 
 with costs, and an extra allowance may be made 
 him, under sec. 309 of the Code. Sup. Ct. Sp. 
 T., 1872, Folsom v. Van Wagner, 14 Abb. N. S. 
 44 ; Aff'd, 7 Lans. 809. 
 
 169. Where such order gives leave to the de- 
 fendant to move for an extra allowance, and 
 provides that the costs shall not be deemed pay- 
 able until defendant shall have had a reasonable 
 time to make and have determined a motion for 
 an extra allowance, the defendant may move 
 for such allowance and it may be granted before 
 judgment. lb. 
 
 170. The provision of sec. 803 of the Code, 
 that there may be allowed to the prevaihng 
 party upon the judgment, etc., does not mean 
 that the recovery of the judgment is a condition 
 precedent to the allowance of costs, but that 
 costs may be allowed to the prevailing party 
 " to be included in the judgment." S. C, 7 
 Lans. 309. 
 
 171. On reversal of judgment. Where a 
 judgment in favor of the plaintiff has been set 
 aside and a new trial ordered, and the Court of 
 Appeals has rendered judgment absolute against 
 the plaintiff on appeal from the order, under the 
 usual stipulation, no extra allowance can be 
 granted to the defendant. Monell, C. J., dis- 
 sents. N. Y. Supr. Ct., 1875, Eldridge v. Strenz, 
 39 N. Y. Supr. (7 J. & Sp.) 295. 
 
 172. At -what time may be granted. Un- 
 der the amendment of 1870 to sec. 309 of the 
 Code (7 Bdm. Stats., 776, sec. 12), no affidavits 
 are necessary upon a motion for an extra allow- 
 ance of costs in a foreclosure case ; and such an 
 allowance may be granted at the time of render- 
 ing final judgment, without notice, provided due 
 notice has been given of the application for 
 judgment. N. Y. C. P., Sp. T., 1870, Walsh 
 V. Weidenfeld, 3 Daly, 334. 
 
 173. By -what court. The application for 
 an extra allowance must, under rule 56, be made 
 to the court before which the trial was had or 
 the judgment rendered, and if that court does , 
 not direct an allowance, there is no authority 
 elsewhere to adjudge it. N. Y. Supr. Ct, 1875, 
 Eldridge v. Strenz, 39 N. Y. Supr. (7 J. & Sp.) 
 295. 
 
 174. Reference, as to. The court cannot 
 delegate its discretionary power as to an addi- 
 tional allowance, by appointing a referee to as- 
 certain and report what would be a proper al- 
 lowance, and to which of the defendants it 
 should be paid. Sup. Ct., 1871, People v. Albany 
 ^ Susq. R R. Co., 5 Lans. 25. 
 
 175. Hew. waived. A neglect to apply for 
 an allowance in addition to other costs for four 
 years after taxation of the bill of costs, and after 
 a settlement upon that basis, is a waiver of the 
 right to move therefor. Sup. Ct., 1874, Board 
 of Commissioners of Pilots v. Spofford, 3 Him, 57. 
 
 176. Adjournment. When a party asks, in 
 good faith and on just ground, for an adjourn- 
 ment of the adjustment of costs, the clerk should 
 adjourn it a reasonable time. Sup. Ct. Sp. T., 
 1873, Agricultural Ins. Co. v. Bean, 45 How. 
 444. 
 
204 
 
 COUNTERCLAIM— COUNTY CHARGES 
 
 178. An appeal from the decision of the 
 clerk of the court in allowing or disallowing 
 costs to a party, cannot be sustainei. The 
 practice, though common, is wholly irregular 
 and unauthorized. Sup. Ct., 1871, Bailey v. 
 Stone, 41 How. 346. 
 
 179. If a party deems himself entitled to costs 
 in a case where there is no adjudication enti- 
 tling him to it, his proper course is to apply to 
 the court for an order requiring the clerk to in- 
 sert the costs, as adjusted, in the judgment. lb. 
 
 180. If the clerk inserts the costs in the judg- 
 ment in such a case, without such adjudication 
 or order, the other party must more to strike 
 them out. lb. 
 
 181. Retaxation. A delay in making a mo- 
 tion for retaxation of costs, for eleven months 
 after an adjustment thereof by the clerk on de- 
 fault, after due notice, is sufficient cause for 
 denying such motion. Sup. Ct., 1875, Penfield 
 V. James, 4 Hun, 69. 
 
 182. Attachment for. The remedy by at- 
 tachment for non-payment of costs in pursuance 
 of an order, wliich had been taken away by 
 ch. 390, Laws 1847, seems to be restored by sec. 
 321 of the Code. Sup. Ct. Sp. T., 1872, Ameri- 
 can Life Ins. Co. v. Van .Epps,'14Abb. N. S. 253. 
 
 183. Against assignee. The provision of 
 sec. 321 of the Code for enforcing the payment 
 of costs by an assignee pendente lite of the cause 
 of action by attachment, applies only to as- 
 signees taking and holding- in their own right ; 
 and an assignee in bankruptcy who continues an 
 action commenced by his assignor is not liable 
 thereto. Ct. Anp., 1873, Reade v. Waterhouse, 
 52 N. Y. (7 Sick.) 587 ; Kev'g S. C, 12 Abb. N. 
 S. 255 ; 35 N. Y. Supr. (3 J. & Sp.) 78. 
 
 184. It seems that an assignee in his own right 
 is not personally liable for costs accrued before 
 the assignment. lb. • 
 
 COTINTEECLAIM. 
 See Pleadino. 
 
 1. Insufficient supply of water. A fail- 
 ure to insure a supply of Croton water to leased 
 premises cannot be set up as a counterclaim in 
 an action for rent, where the lease contains no 
 express covenant to maintain such . supply. 
 N. Y. Supr. Ct., 1873, Coddington v. Dunham, 45 
 
 • How. 40 ; S. C, 35 N. Y. Supr. (3 J. & Sp.) 412. 
 
 2. Neglect to repair. In an action by a 
 landlord to recover rent, the tenant may coun- 
 terclaim damages sustained by him in conse- 
 quence of the neglect of the landlord to perform 
 his agreement to keep the premises in repair. 
 Sup. Ct., 1873, Cook V. Soule, 45 How. 340: 
 AfE'd, S. C, 56 N. Y. (11 Sick.) 420. 
 
 3. He may also make the necessary repairs 
 and counterclaim the expenses thereof, or if he 
 makes only partial repairs, he may recover not 
 only the expenses, but other damages sustained 
 before and after such repairs. lb. Payment of 
 all but one quarter's rent, under a lease for one 
 year, does not deprive the tenant of the right 
 to counterclaim his damages for the entire year. 
 S. C, 56 N. Y. (11 Sick.) 420. 
 
 4. Services. In an action by an assignee in 
 bankruptcy to recover the purchase price of 
 live stock sold by him to the defendant, the 
 latter can set up as a counterclaim, a demand for 
 services in the care of the stock after the plain- 
 tiff acquired title, but not one for such services 
 previous to that time, that being a claim against 
 
 the bankrupt's estate. Sup. Ot., 1875, Moron v. 
 Bogert, 3 Hun, 603. 
 
 5. Unsuitable materials. Where a build- 
 ing contract provided that the sand used should 
 be taken from the premises, and the owner, 
 •though informed by the contractor of the unfit- 
 ness of the sand for that purpose, directed its 
 use, and a defect in the wall was the result,— 
 Reld, that the owner could not counterclaim 
 damages for such defect in an action on the con- 
 tract. Ct. App., 1874, McLane v. De Leyer, 56 
 N. Y. (11 Sick.) 619. 
 
 COUNTERFEITING. 
 See Ckiminal Lavt. 
 
 COUNTIES. 
 
 1. Property. The records of conveyances 
 in the office of the county clerk are not the cor- 
 porate property of the county ; and the clerk, in 
 keeping them, does not act as the agent of the 
 county. Sup. Ct., 1875, People ex rel. Welch v. 
 Nash. 3 Hun, 535. 
 
 2. The county board of supervisors have no 
 power to interfere with the clerk's possession of 
 such records, and cannot authorize any person 
 to use them to make indexes or otherwise, in 
 hostility to the clerk. lb. 
 
 COUNTY CHARGES. 
 
 1. What are and what are not county 
 charges are settled, by law, and not by the audit 
 of the board of supervisors, but their determi- 
 nation of the amount due is conclusive, inas- 
 much as they act judicially. Sup. Ct., Sp. T., 
 1874, People ex rel. Tracy v. Green, 47 How. 
 382. 
 
 2. Whether a claim for supplies furnished for 
 the support of prisoners in jail is a proper county 
 charge depends upon the facts, and those facts 
 may be inquired into upon issues raised on an 
 application for a mandamus to compel payment. 
 lb. 
 
 3. Extra compensation to clerk. A clerk 
 of a court, who is a salaried officer, has no legal 
 claim against his county for extra compenssr 
 tion for furnishing to it naturalization papers or 
 indexing naturalization books, those services 
 being part of the duties devolving on him by 
 law. Sup. Ct., 1875, Canaan v. Mayor, etc., of New 
 Yoric, 3 Hun, 632. 
 
 4. The auditing and allowing of such a claim 
 by the board -of supervisors of the county of 
 New York, does not make the county liable 
 therefor, they being expressly prohibited from 
 allowing or paying any but legal claims. lb. 
 
 5. Index. The cost of the right to use in the 
 register's office a patented system of indexing 
 the public records, which will facilitate refer- 
 ences thereto, is a proper county charge ; and an 
 assignment of such right by the owner of the 
 patent being necessary for the security of the 
 county, a proper allowance therefor may also be 
 made. N. Y. C. P., People ex rel. Ford v. Earle, 
 47 How. 368. 
 
COUNTY COURT— COURT OF COMMON PLEAS. 
 
 205 
 
 COXINTY COURT. 
 
 1. Jurisdiction must appear. In order to 
 confer jurisdiction of an action upon the County 
 Court, the complaint must show that the defend- 
 ant is a resident of the county in whicii the ac- 
 tion is commenced. Sup. Ct., 1871, Judge v. 
 Hall, 5 Lans. 69. 
 
 2. In foreclosure. A County Court has ju- 
 risdiction, under sec. 30 of the Code, of an action 
 to foreclose a mortgage, which includes lands 
 situated in another comity as well as lands in 
 the county of such court, where the plaintiff 
 seeks relief only against the latter premises. 
 Sup. Ct., 1871, Strong v. Eighme, 41 How. 117. 
 
 3. Infants' estates. The County Court in 
 exercising the authority conferred by sec. 30 of 
 the Code, in respect to the sale of infants' real 
 estate, has the same general powers within its 
 county as appertain to the Court of Chancery, 
 and the provisions of the Eevised Statutes will be 
 applicable as well as the general rules of equity 
 jurisprudence. Eetuoi-ds, C, dissents. Com. 
 App., 1874, Brovm t. A'netf, 67 N. Y. (12 Sick.) 
 286. 
 
 4. That jurisdiction need not be exercised at 
 a regular stated term, the court being always 
 open for such a purpose. lb. 
 
 5. Refunding taxes. The statutes relating 
 to refunding taxes (ch. 855, Laws 1869, as amend- 
 ed by ch. 695, Laws of 1871) confer no power 
 upon the County Court to adjudge the illegality 
 of an assessment, nor can it make an order re- 
 quiring the superrisors to refund taxes until the 
 assessment has been adjudged illegal or im- 
 proper by a competent tribunal. Sup. Ct., 1S75, 
 In matter of Hudson City Savings Inst., 5 Hun, 612. 
 
 COUNTY JITDGE. 
 
 1. 'Who is ? The term " county judge,'' as 
 employed in ch. 348, Laws of 1860, and its 
 Tarious amendments, relating to the division of 
 the estates of debtors conveyed to assignees, in- 
 cludes the judges of the Court of Common Pleas 
 of New York; and the powers conferred by 
 those acts upon the county judge may rightfully 
 be exercised by the judges of the Common Pleas 
 when the debtor resides in the city of New 
 York. Ct. App., 1874, In matter of Morgan, 56 
 N. Y. (11 Sick.) 629. 
 
 2. Limitation as to age. The provision of 
 the judiciary article of the new Constitution 
 which took effect January, 1870, limiting the 
 term of office of any judge to the last day 
 of December next after he shall become 70 
 years of age, does not apply to judges in office 
 when that article became a part of the Constitu- 
 tion, but only to those subsequently elected, and 
 therefore does not apply to a county judge elect- 
 ed in November, 1869, to hold four years from 
 January 1, 1870. Sup. Ct., 1871, People ex rel. 
 Davis V. Gardner, 6 Lans. 1 ; S. C, 59 Barb. 198. 
 S. P. People ex rel. Clark v. Norton, 5 Lans. 7. 
 
 8. Po'wers — order of arrest. The power 
 to issue orders of arrest is conferred upon county 
 judges by sec. 180 of the Code in as clear and 
 explicit language as upon judges of the Supreme 
 Court, and it is not restricted by subd. 3, sec. 
 ^1, of the Code to cases to be. tried in his own 
 county, or where the attorney for the moving 
 party resides in his county. Sup. Ct., 1874, 
 Kennedy v. Simmons, 1 Hun, 603. 
 
 4. Orders at Chambers. A county judge 
 has authority out of court to make an order, in 
 
 a case pending in his court, to stay proceedings 
 on a judgment until the hearing and decision of 
 a motion for a new trial in the County Court. 
 Sup. Ct., 1872, Ward v. Bundy, 43 How. 330. 
 
 5. Injunction cases. A county judge has 
 no jurisdiction to hear and decide a contested 
 motion to continue an injunction order in the 
 Supreme Court ; but Jiia power is limited to such 
 orders as are made out of court and without no^ 
 tioe. In that respect there is no distinction be- 
 tween injunction orders and other orders. Sup. 
 Ct., Sp. T., 1872, Town of Rochester v. Davis, 12 
 Abb. N. S. 270. 
 
 6. A county judge cannot hear a contested 
 motion as to an injunction. He cannot therefore 
 in granting an injunction ex parte add an order, 
 returnable before himself, to show cause why 
 such injunction-should not be continued, because ■ 
 that amounts to a notice of a motion, which he 
 has no jurisdiction to hear. Sup. Ct, Sp. T., 
 1872, Toum of Middletown v. Rondout ^ Oswego 
 R. R. Co., 43 How. 144 ; S. C, 12 Abb. N. S. 276; 
 Aff'd S. C, 43 How. 481. S. P., Town of Rochester 
 V. Davis, 12 Abb. N. S. 270. 
 
 7. Under sees. 218 to 226 of the Code a county 
 judge has powers in regard to granting injunc- 
 tion orders, co-ordinate and co-extensive with 
 those of judges of the Supreme Court ; and upon 
 return of an order to show cause contained in 
 an injunction order granted by him ex parte, re- 
 turnable before himself, he may continue such 
 injunction. Sup. Ct., Sp. T., 1872, Hathaway v. 
 Warren, 44 How. 161. 
 
 8. Referring accounts of assignee. Un- 
 der sec. 4, ch. 838, Laws of 1872 ; amendatory of 
 ch. 348j Laws of 1860, " to secure to creditors a 
 just division of the estate of debtors who con- 
 vey to assignees," etc., the county judge has no 
 authority to refer it to a referee to take and 
 state the account of an assignee ; his authority 
 to refer is limited to the taking and reporting of 
 the evidence. Ct. App., 1874, In the matter of 
 the Accounting of Morgan, fi&'S.Y. (11 Sick.) 629. 
 
 COUNTY TBEASUEEE. 
 
 1. Filing Bond. The statute fixing the time 
 for filing the county treasurer's bond is direc- 
 tory, and one duly approved and filed by him in 
 the clerk's office after the prescribed time is 
 valid, and entitles him to enter upon the duties 
 of his office. Sup. Ct., Sp. T., 1874, McRoberts 
 V. Winant, 15 Abb. N. S. 210. 
 
 2. Holding over. The county treasurer is 
 not authorized by law to hold over, in case of 
 the failure of his successor to qualify, and there- 
 fore cannot contest the title of such successor, 
 lb. 
 
 8. Interest on deposits of county funds, 
 received by the county treasurer, belong to the 
 county, and not to the treasurer, even though 
 the supervisors in passing upon his accounts may 
 have allowed it to him as a perquisite. Sup. Ct., 
 1872, Board of Sups, of Richmond County v. Wan- 
 del, 6 Lans. 33. 
 
 4. The treasurer and his sureties are liable to 
 the county on their bond for interest so received 
 by him. lb. 
 
 COURT or COMMON PLEAS. 
 
 1. The judges of the Court of Common Pleas 
 have, ex officio, all the authority, within the city 
 
206 
 
 COURTS-MARTIAL— COVENANTS. 
 
 and county of New York, of justices of the peace 
 in the several counties, and as such may take 
 and certify acknowledgments of deeds, required 
 by the laws of any other State to be taken be- 
 fore a justice. N. T. C. P., 1871, Opinion of Ch. 
 J. Daly, 3 Daly, 547. 
 
 2. Jurisdiction. The Court of Common Pleas 
 acquires jurisdiction of an action on contract, 
 brought against co-partners not resident in this 
 State, if the summons be personally served upon 
 one of such co-partners in the city and county 
 of New York. N. Y. C. P., Sp. T., 1871, Wood- 
 ward V. Stearns, 10 Abb. N. S. 395. 
 
 3. In such action an attachment may issue 
 before personal service of the summons, but no 
 valid levy can be made until after such ser- 
 vice, lb. 
 
 4. The Court of Common Pleas of New York 
 has no jurisdiction of an action against a person 
 not residing in the city, nor served with process 
 therein. N. Y. C. P., 1874, Fowle v. Covert, 49 
 How. 120. 
 
 5. A judgment entered in that court by de- 
 fault, against a non-resident, served with sum- 
 mons and warrant of attachment by mail after 
 an order for the publication of summons had 
 been obtained, is irregular, and that with all 
 proceedings under it, and the levy under the 
 attachment will be set aside. lb. 
 
 6. Where an action commenced in a district 
 court is removed to the Common Pleas, under 
 the provisions of ch. 344, Laws of 1857, the com- 
 plaint below being for an amount exceeding 
 $250, this court has the same power as in cases 
 of original jurisdiction to award judgment for 
 the full amount claimed. N. Y. C. P., 1873, 
 iMdwig V. Minot, 4 Daly, 481. 
 
 7. The provision of sec. 1, ch. 239, Laws of 
 1873, which gives to the courts therein named, 
 including the Court of Common Pleas, original 
 jurisdiction in law and equity, concurrent and 
 co-extensive with the Supreme Court, in all civil 
 actions and special proceedings, includes pro- 
 ceedings by mandamus. Ct. App., 1874, People 
 ex rel. By an v. Green, 58 N. Y. (13 Sick.) 295 ; 
 AfE'g 46 How. 169. 
 
 8. Its officers not county officers. The 
 Court of Common Pleas is part of the judicial 
 system of the State, and its judges are not 
 county officers, but public officers of the State, 
 and its clerk and deputy clerk, being part of the 
 court, are also public officers ; and neither of 
 those officers are within the provisions of ch. 
 583, Laws of 1871, giving power to the board of 
 apportionment to regulate the salaries of officers 
 and employees of the city and county govern- 
 ments. N. Y. Supr. Ct., 1875, Landon v. Mayor, 
 etc., of New York, 39 N. Y. Supr. (7 J. & Sp.) 467; 
 AfE'g S. C, 49 How. 218. S. P. Jarois v. Mayor, 
 etc., of New York, 49 How. 354. 
 
 .9. Appeals from Marine Court. The 
 reversal at General Term of the Marine Court, 
 of a judgment entered upon report of a referee, 
 with an order for a new trial, does not constitute 
 such an actual determination of the action, within 
 the meaning of sec. 352 of the Code, as authorizes 
 an appeal to the Court of Common Pleas. N. Y. 
 C. P., 1871, Frank v. Benner, 3 Daly, 422. 
 
 10. A judgment of affirmance, by default, of 
 a judgment of the trial court, rendered at Gene- 
 ral Term of the Marine Court, is not an " actual 
 determination," within the meaning of sec. 362 
 of the Code ; and no appeal lies therefrom to the 
 Court of Common Pleas, nor would consent of 
 the parties in such case, confer jurisdiction. Ct. 
 App., 1871, McMahon v. Bauhr, 47 N. Y. (2 Sick.) 
 67. 
 
 11. Costa. Upon appeal from a judgment 
 rendered at the General Term of the New York 
 Marine Court, the appellant on reversal, is en- 
 titled under sec. 371 of the Code to tax as costs 
 the fee paid to the clerk of the Marine Court 
 for making his return, and also all costs incurred 
 by him which he would have recovered by the 
 judgment appealed from, had that been in his 
 favor. N. Y. C. P., 1871, Boomer v. Broum, 4 
 Daly, 229. 
 
 COUETS-MARTIAL. 
 
 1. Constitutionality. The provisions of 
 our statutes creating courts-martial for the dis- 
 cipline of the militia, and regulatingproceedings 
 therein and the mSde of enforcing their judg- 
 ments are constitutional and valid. Sup. Gt., 
 1872, People ex rel. Underwood v. Daniell, 6 Lans. 
 44 ; Afi'd, S. C, 50 N. Y. (5 Sick.) 274. 
 
 2. They are necessary incidents to the dis- 
 cipline of the militia, provided for by the Con- 
 stitution, and are also recognized therein, and 
 there is no provision abolishing or essentially 
 modifying them. lb. 
 
 COVENANTS. 
 
 1. By grantee. The grantee in a deed- 
 poll is bound by the covenants therein con- 
 tained to be performed by him,, and an 
 action of covenant lies for a breach thereof. 
 By acceptance of such a deed, the grantee is 
 estopped from denying his covenants, or that 
 the seal attached to the deed is his own as well 
 as that of the grantor. Com. App., 1873, 
 Atlantic Dock Co. v. Leavitt, 54 N. Y. (9 Sick.) 
 35. 
 
 2. A recital in such a deed that it was sealed 
 by both parties, furnishes satisfactory evidence 
 that the seal opposite the name of the grantor 
 was adopted also by the grantee. lb. 
 
 3. Even if an action of covenant will not lie 
 in such case against the .grantee, a court of 
 equity will restrain him or his grantees from 
 •doing what, by such covenant, he has agreed not 
 to do. lb. 
 
 4. A covenant inserted a deed of a par- 
 cel of ground, whereby the grantee for him- 
 self, his legal representatives and assigns, cove- 
 nants not to build upon a certain designated 
 strip thereof, opposite which the grantor has 
 windows in a building retained by him, creates 
 a right in the nature of an easement for the 
 benefit of the land retained by the grantor, and 
 is binding upon the grantee and those claiming 
 under him ; and they may be restrained by in- 
 junction from erecting a building on such strip. 
 Brooklyn City Ct, Sp. T., 1873, Phcenix Ins. Co. 
 V. Continental Ins. Co., 14 Abb. N. S. 266. 
 
 5. A provision in the deed in addition to such 
 covenant, that for a violation thereof the grantee 
 will pay $1,500 liquidated damages, does not 
 give him the election to annul the restriction by 
 paying that sum. lb. 
 
 6. By lessee. The acceptance by a lessee of 
 a lease, under seal, containing a stipulation for 
 the digging of an oil well by him on the prem- 
 ises devised, binds him to the performance of 
 such stipulation, although he does not execute 
 the lease ; and a right of re-entry on breach, 
 attached to the covenant, will give it the force 
 of a condition. Ct. App., 1871, Chamberlain v. 
 Parker, 45 N. Y. (6 Hand,) 569. 
 
COVENANTS. 
 
 207 
 
 7. A covenant in a lease of a salt block for a 
 term of years, whereby the lessee pledges the 
 net earnings of the salt company (the lessee), in 
 any one year, to the payment of the rents accru- 
 ing upon that and all leases to them of salt works 
 during the same year, — Held inconsistent with 
 the idea that the lessee was to pay the rent in case 
 no profits were made. Sup. Ct., 1873, Lynch v. 
 Onondaga Salt Co., 64 Barb. 558. 
 
 8. A provision in such lease that the lessee 
 " enters into no other or different covenant or 
 agreement respecting such rents, — Held to ex- 
 clude any implied covenant to pay the rent other- 
 wise than by an appropriation of the profits of 
 the company. lb. 
 
 9. It is not necessary, in order to constitute a 
 breach of a covenant in a lease between a sub- 
 lessee and his lessor, that the former will not 
 before a time specified, negotiate for, or accept, 
 or be interested in any lease of certain premises 
 except from such lessor ; that the latter should 
 have been prevented or embarrassed in getting 
 a new lease, by the negotiations of the former 
 for a lease. N. Y. Supr. Ct., 1871, Smith v. Coe, 
 83 N. Y. Supr. (1 J. & Sp.) 480. 
 
 10. Implied. The statute abrogating im- 
 plied covenants as to conveyances does not apply 
 to leases for years, but covenants may still be 
 implied therein. Sup. Ct., 1873, Lynch v. Onm- 
 daga Salt Co., 64 Barb. 558. 
 
 11. An express covenant, if it does not alto- 
 gethef prevent and take away, at least qualifies 
 and restrains implied covenants on the same 
 subject, without negative words. lb. 
 
 12. In a contract for the sale of leases there 
 is an implied covenant, not only that the vendor 
 owns the leases and has autliority to sell, but 
 that the lessor had power to create the term, 
 unless there is a stipulation to the contrary. N. Y. 
 Supr. Ct., 1875, Bensel v. Gray, 38 N. Y. Supr. 
 (6J. &Sp.)447. 
 
 13. A purchaser of leases under sales for 
 taxes in the city of New York, has a right to 
 insist that the vendor shall show that the cor- 
 poration had power to grant the lease, and re- 
 fuse to complete his purchase without such 
 proof. lb. 
 
 14. Upon the assignment by a vendee of an 
 executory contract for the sale of lands, there is 
 no implied covenant, on the part of the assignor 
 as to the vendor's title to the land. Com. App., 
 
 1872, Thomas v. Bartow, 48 N. Y. (3 Sick.) 193. 
 
 15. Agaiust incumbrances. No tax or as- 
 sessment can exist until the amount thereof is 
 ascertained and determined. Hence, although 
 the expense has been incurred at the time of 
 conveyance, to meet which a local assessment is 
 subsequently laid upon the premises conveyed 
 which are legally chargeable therewith, such as- 
 sessment does not constitute a breach of the 
 covenant against incumbrances. Com. App., 
 
 1873, Dowdney v. Mayor, etc., of New York City, 
 54 N. Y. (9 Sick.) 186. 
 
 16. An assessment for street improvements m 
 New York city, does not become a lien upon the 
 land assessed until after it has been confirmed 
 by the court or board of revision and entered of 
 record in certain offices designated by statute ; 
 and, consequently, a covenant against incum- 
 brances in a deed executed and delivered before 
 such entry of record of an assessment is not brok- 
 en, although the improvement had been com- 
 pleted and the assessment made and confirmed 
 by the board of revision previous to that time. 
 N. Y. Supr. Ct, 1875, De Peyster v. Murphy, 39 
 N. Y.Supr. (7 J. &Sp.)255. 
 
 17. A covenant against incumbrances in a 
 
 deed is so far satisfied by the 'vendees retaining 
 sufficient of the purchase money to satisfy it, 
 that he cannot maintain an action for a breach 
 of such covenant. N. Y. Supr. Ct., 1874, Reading 
 V. Gray, 37 N. Y. Supr. (5 J. & Sp.) 79. 
 
 18. If he afterward pays ovef such money to 
 his vendor, still holding the latter for the re- 
 moval of the incumbrance, the covenant is re- 
 vived, and he can maintain an action thereon or 
 counterclaim his damages ; but he can recover 
 only nominal damages until after actual pay- 
 ment of the incumbrance. lb. 
 
 19. Bent accruing is not an incumbrance, 
 within the meaning of a covenant against in- 
 cumbrances in an assignment of a lease made 
 before the expiration of the half year when the 
 rent became payable. N. Y. Marine Ct., 1872, 
 Hull V. Stemnsm, 83 Abb. N. S. 196. 
 
 20. In assignment of patent. In an instru- 
 ment assigning the exclusive right to make, 
 vend, &c., a certain improvement, for which the 
 assignor obtained a patent in 1864, for certain 
 territory, " with the renewals and all improve- 
 ments I might make hereafter," the covenant 
 expressed by such clause does not include any 
 improvement which the assignor had before in- 
 vented, but for which he did not obtain letters- 
 patent until afterward. The word " make " 
 means not merely the manual putting together 
 of the improvement, but also the mental devis- 
 ing thereof. Ct, App., 1875, May v. Page, 60 
 N. Y. (15 Sick.) 628. 
 
 21. Principal to be due on non-payment 
 of interest. A covenant in a mortgage given 
 to trustees to secure bonds issued by a railroad 
 company, " that the principal sura secured by 
 said mortgage shall become due, in case the in- 
 terest on the bonds remains unpaid for four 
 months, and the lien or incumbrance hereby 
 created may be at once enforced," where the 
 bonds secured by it contain no such provision, 
 must be held merely to give the trustees the 
 right to foreclose for principal as weU as interest 
 on such failure to pay the interest, and not to 
 give the bondholders a right of action for the 
 principal in such case. N. Y. Supr. Ct., 1873, 
 Malloru V. West Shore Hud. Riv. R. R. Co., 35 
 N. Y. Supr., (3 J. & Sp.) 174. 
 
 22. For quiet enjoyment. Where a lease 
 contains an express covenant for quiet enjoy- 
 ment of the demised premises " without moles- 
 tation or disturbance of or from " the lessor, his 
 successors or assigns, no other or further cove- 
 nant in respect to enjoyment will be impUed. 
 Ct. App., 1871, Burr v. Stenton, 43 N. Y. (4 
 Hand,) 462. 
 
 23. The removal of fixtures by a tenant con- 
 tinuing in possession under a new lease without 
 reservation of his right to remove, being with- 
 out right, is" no breach of covenants of seizin 
 and for quiet enjoyment in a conveyance from 
 the landlord to a third party pending the lease. 
 Ct. App., 1871, Loughran v. Ross, 45 N. Y. (6 
 Hand,) 792. 
 
 24 By receiver. A covenant in an assign- 
 ment of certain claims running in the name of 
 J P, receiver, &c., and signed " J P, receiver," 
 that the assigned claims are due and unpaid, — 
 Held, to be a covenant of J P in his official, not in 
 his personal capacity. Sup. Ct., 1872, Living- 
 ston V. Pettigrew, 7 Lans. 405. 
 
 25, Whether the receiver could bind the 
 estate represented by him by such a covenant, 
 Query ? Even if he could not, he would not be 
 personally liable thereon. lb. 
 
 26. Running -with land. A covenant does 
 not run with the land so as to bind an assignee 
 
208 
 
 CREDITOR'S BILL. 
 
 to perform it, unless there is privity of estate 
 between the parties. Com. App., 1873, Cole v. 
 Hughes, hi N Y. (9 Sick.) 444. 
 
 27. Acccordingly, held, that a grantee of lands 
 was not bound by a coTenant of his grantor, 
 made with the owner of adjoining lands, to pay 
 the expenses of a party-wall erected by the lat- 
 ter, whenever used ; even though the latter as- 
 sumed to bind his assigns, and each grantee 
 purchased with notice of that fact. lb. 
 
 28. The right, in such case, to reimbursement 
 for the use of a party-wall is personal with the 
 first builder, and doesnot pass by his grant of 
 the lot, house and appurtenances. lb. 
 
 29. An independent covenant, made by the 
 owner of lands with another, that no mill shall 
 be erected on the premises, is not a covenant 
 running with the land, but a personal covenant 
 simply, binding only the covenantor and not an 
 unnamed assignee. Ct. App., 1871, Harsha v. 
 Beid, 45 N. Y. (6 Hand,) 416. 
 
 30. A covenant, in an instrument whereby 
 the owner of land releases damage caused by the 
 sliding of a railroad embankment upon his land, 
 that, '.'if in consequence of the peculiar con- 
 struction of such embankment or of the nature 
 of the soil at the point where it adjoins his land," 
 land-slides shall hereafter occur from said em- 
 bankment whereby earth or other material shall 
 be deposited on my lot that I will make no claim 
 for damages therefor, and that I will, and my 
 heirs and legal representatives shall consider the 
 money this day paid by said corporation, com- 
 pensation in full for all past and all future 
 damage to my land, which has happened or may 
 hereafter occur in consequence of this embank- 
 ment, and this instrument a bar to all future 
 claim," creates an easement in the land in favor 
 of the company, and the covenant runs with the 
 land, and the heirs of the covenantor cannot re- 
 cover for any damage to the land by a slide of 
 the embankment, not caused by the wilful or in- 
 tentional negligence of the railroad company. 
 Miller P. J., dissents. Sup. Ct., 1874, Van Rens- 
 selaer V. Albany ^S.R.R Co., X Hun, 507 ; AfE'd 
 by Ct. App. 
 
 31. Of seizin. In this State, the covenant 
 of seizin relates to the title, not to the posses- 
 sion. It is broken at the moment it is made, if 
 the grantor has not title, but possession by a 
 third party at the time of the conveyance is not 
 a breach thereof, unless it is adverse so as to ren- 
 der the deed void. Sup. Ct., 1875, Nichols v. 
 Nichols, 5 Hun, 108. 
 
 82. To pay taxes. A covenant in a lease 
 that the lessee " will pay all taxes and Croton 
 water rates that may be imposed or assessed, or 
 become a lien on the premises at any time 
 during the term, when due and payable," does 
 not render him liable to pay them until by law 
 due and payable to the proper authorities. 
 N. Y. Supr. Ct., 1875, Whitman v. Nicol, 88 
 N. Y. Supr. (6 J. & Sp.) 528. 
 
 83. The mere imposition of a tax does not 
 raise a presumption, as against the covenantor, 
 that it became due immediately. lb. 
 
 34. 'As to use of land. Covenants be- 
 tween adjoining owners of lands, in respect to 
 the class of buildings to be erected on their 
 respective lands, and in restraint of their use for 
 trade, expressly made binding upon the heirs 
 and assigns of the parties, whether they techni- 
 cally run with the land or not, will be enforced 
 in equity against grantees of the parties who 
 have notice thereof, and whose conveyances are 
 expressly made subject thereto. N. Y. Supr. 
 Ct., 1876, Trustees of Columbia College v. Lynch, 
 
 89 N. Y. Supr. (7 J. & Sp.) 372 ; Bev'g S. C, 
 47 How. 273. 
 
 35. It seems that a covenant not to erect a 
 "distillery" on premises specified would not 
 apply to an establishment for distilling parafiSne 
 oil. Ct. App., 1871, Atlantic Dock Co. v. Libby, 
 45N. Y. {6Hand,)499. 
 
 36. But such an erection, in which the stills 
 and furnaces are kept at an unusual and ek- 
 treme heat, which, with a lurid flame occa- 
 sionally arising, gives to all persons in the 
 neighborhood reasonable apprehension of dan- 
 ger from fire, is within a covenant against the 
 erection of buildings for carrying on a " danger- 
 ous trade or business." lb. 
 
 37. Of warranty. A- covenant by the 
 grantor in a deed to " warrant and defend the 
 premises, and every»part and parcel thereof," 
 against himself, his heirs, &c., and " all and 
 every other person or persons claiming or to 
 claim the said premises, or any part thereof," is 
 a covenant against any disturbance of either 
 possession or title by title paramount, being the 
 same in effect as a covenant for quiet enjoy- 
 ment. Sup. Ct., 1871, Rea v. Minkler, 5 Lans. 
 196. 
 
 38 It includes all outstanding adverse claims 
 to the premises or any part thereof, which 
 affect the full enjoyment of the possession or 
 title, and the existence and use of a private 
 right of way over the premises, to whiph they 
 were subject at the time of the conveyance- with 
 such covenant, is a breach thereof. lb. 
 
 39. A disturbance of the free and uninter- 
 rupted use of land, without absolute expulsion 
 therefrom is, in law, an eviction and a breach of 
 the covenant of warranty. lb. 
 
 40. Knowledge, on the part of the covenantee 
 at the time of his purchase, that there was a 
 strip of land in the rear of the premises con- 
 veyed to him which had been previously con- 
 veyed by his grantor to another, to which there 
 was no access from the highway except over 
 his premises, does not render the existence and 
 use of such way, under an express grant 
 thereof, any less a breach of the warranty. lb. 
 
 41. Whether the existence and use of a public 
 highway through the granted premises would 
 be a breach of the covenant, query 1 lb. 
 
 42. Action for breach — damages. Where 
 a grantee of lands, under a deed containing 
 covenants of warranty and for quiet enjoyment, 
 bids in the same at a Sheriff's sale on fore- 
 closure of a prior mortgage, and assigns his bid 
 to a third person, surrendering to him the pos- 
 session after the delivery of the sheriff's deed, 
 those facts amount to an eviction, for which 
 such grantee may, in an action on the covenants, 
 recover back the whole purchase-money. Com. 
 App., 1871, Cowdery v. Coit, 44 N. Y. (5 Hand,) 
 882 ; Eev'g S. C, 3 Rob. 210. 
 
 CREDITOR'S BILL. 
 I. When and et whom action can be 
 
 MAINTAINED 208 
 
 II. What property can be reached 209 
 
 III. Practice ;... 209 
 
 I. When AND bt whom action can bb main- 
 tained. 
 
 1. A judgment creditor can maintain an 
 action in the nature of a creditor's bill, to set 
 aside an assignment of property made by the 
 
CREDITOR'S BILL. 
 
 209 
 
 dehtor as being fraudulent, notwithstanding lie 
 has previously instituted supplementary pro- 
 ceedings against the debtor, if no receiver has 
 been appointed therein. Sup. Ct., 1871, Bennett 
 V. McGuire, 6Lans. 183. 
 
 2. Where assignments by the debtor to a 
 third party, and by such party to the debtor's 
 wife, are sought to be set aside in such suit, the 
 intermediate assignee is a necessary party 
 thereto. lb. 
 
 3. A creditor whose judgment is a general 
 lien upon all his debtor's real estate, can main- 
 tain an action in equity to set aside fraudulent 
 conveyances of real estate made by such debtor, 
 which obstruct the collection of his judgment 
 out of the same, without first issuing an execu- 
 tion, where it appears that the debtor has no 
 other property out of which it can be satisfied. 
 Sup. Ct., 1872, Payne v. Sheldon, 68 Barb. 169 ; 
 Eev'g S. C, 43 H6w. 1. 
 
 4. A complaint in such an action need not, 
 therefore, allege that an execution has been 
 issued to the sheriff of the proper county and 
 returned unsatisfied ; but when the creditor 
 seeks satisfaction out of a class of property be- 
 yond the reach of execution, he must show that 
 he has exhausted his remedy at law ; and if the 
 property sought to be reached is liable to execu- 
 tion, he must show that it has been made sub- 
 ject to the lien of the judgment, and that there 
 is some necessity for asking the aid of a court of 
 equity. lb. 
 
 5. The fact that the debtor has no other 
 property except that which he has fraudulently 
 conveyed, out of whicli the judgment can be 
 satisfied, shows conclusively the necessity of 
 relief in equity. lb. 
 
 6. An action can be maintained in equity by 
 a judgment creditor of the mortgagor, to remove 
 a mortgage which is void between the parties 
 for want of consideration, as an obstruction to 
 the collection of his judgment recovered since 
 the execution of the mortgage, but for a debt 
 incurred prior thereto. Sup. Ct., 1871, Stowell 
 V. HasleU, 5 Lans. 380 ; Modified S. C, 57 N. Y. 
 (12 Sick.) 380. 
 
 7. In order to the maintenance of such action, 
 it must appear that the mortgage is entirely void, 
 and as between the parties thereto constitutes 
 no claim or incumbrance, either in law or 
 equity. lb. 
 
 8. A mortgage intended and understood to be 
 valid by the parties, and given to secure the 
 purchase-money of oil lands in another State, 
 for wliich the mortgagee executed and delivered 
 to the mortgagor a written instrument intended 
 and supposed to be sufficient to convey the 
 title, will not be set aside in such a suit merely 
 because such instrument is imperfect and in- 
 operative in not containing grantee's name ; the 
 grantee having a right in equity to compel the 
 execution of a proper conveyance. lb. 
 
 9. Such a contract was not executory, resting 
 in parol, but was executed ; and it could not be 
 avoided by the mortgagor if the mortgagee was 
 willing to perform. lb. 
 
 10. In such a case, the court will not inquire 
 whether the bargain in which the mortgage 
 originated was advantageous or otherwise to 
 the mortgagor. lb. 
 
 11. One who has entrusted a government bond 
 to a broker, which the latter embezzles and 
 converts to his own use, is entitled to pro- 
 tection against a fraudulent conveyance of 
 property made by the broker, and may 
 have such conveyance set aside, in an action 
 for that purpose, whether such conversion takes 
 
 14 
 
 place before or after the fraudulent transfer. 
 Sup. Ct., 1873, Pendleton v. Hughes, 65 Barb. 136. 
 
 12. Against •whom. One to whom notes 
 and accounts of a firm were transferred as 
 security for a claim in his favor, and who, after 
 satisfaction thereof from the securities, assigned 
 the balance back to the firm, never afterward 
 claiming any interest therein, is not a proper 
 party to an action in the nature of a creditor's 
 bill by creditors of the firm ; but a third party 
 to whom such securities were transferred for 
 collection, and who obtained judgments on some 
 of them in his own name, which were not in- 
 cluded in terms in the assignment back, is a 
 proper party to such an action, to test his right 
 to the judgment. Ct. App., 1872, Welmore 
 •V. Candee, 49 N. Y. (4 Sick.) 667. 
 
 XL What peopertt can be beached. 
 
 13. Assets of a corporation are a trust 
 fund for the payment of its debts, and its credit- 
 ors have a lien thereon and the right to priority 
 of payment over its stockholders ; and if they 
 are divided among its stockholders before all its 
 debts have been paid, a judgment creditor, whose 
 execution has been returned unsatisfied, can 
 maintain an action, in the nature of a creditor's 
 bill, against a stockholder to reach the assets re- 
 ceived by him, even though he received them by 
 fair agreement with his associates. Com. App., 
 1874, Bartlett v. Drew, 87 N. Y. (12 Sick.) 587 ; 
 AfiE'g S. C, 4 Lans. 444 ; 60 Barb. 648. 
 
 14. Such creditor can sue for himself alone, 
 and need not bring his action in favor of other 
 creditors also, nor make all the stockholders de- 
 fendants, lb. 
 
 15. The circumstance that the debtor is a 
 foreign corporation, or that the stockholder made 
 defendant was its president, director or stock- 
 holder is immaterial, if he has assets in his pos- 
 session that ought to be applied to the payment 
 of the debt. lb. 
 
 16. Income of a trust estate, created by a 
 person other than the beneficiary, cannot be 
 reached by the judgment creditors of the latter, 
 although there may be a surplus after providing 
 for his education and support. Sup. Ct., 1875, 
 Hann v. Van Voorhis, 6Hun, 425 ; S. C., before, 15 
 Abb. N. S. 79. 
 
 17. Land conveyed to T;»-ife. The remedy 
 by a judgment creditor's bill against lands held 
 un(Jer contract for purchase, created by the Ue vis- 
 ed Statutes, does not apply where the debtor has 
 assigned his contract and the assignee has re- 
 ceived a deed, because the equitable interest of 
 the assignor has become merged in the legal es- 
 tate of the assignee. N. Y. Supr. Ct., 1874, Don- 
 ovan V. Sheridan, 37 N. Y. Supr. (5 J. & Sp.) 256. 
 
 18. The remedy of the creditor in such a case 
 is to subject the land to the payment of his debt, 
 by enforcing the trust in his favor created by 1 
 B. S., 728, sec. 52 (1 Edm. Stats. 677), to the ex- 
 tent necessary to satisfy it. lb. 
 
 19. Trust property. The surplus arising 
 upon a trust for the benefit of the judgment 
 debtor created by a third person, cannot be 
 reached by the judgment creditor by an action 
 commenced before any surplus has accumulated 
 in the hands of the trustees. Sup. Ct., Sp. T., 
 1873, 3ann v. VanVoorhis, 15 Abb. N. S. 79. 
 
 ni. Peactice. 
 
 20. Control of suit. Until an order or judg- 
 ment has been made in an action by a judgment 
 creditor suing in behalf of himself and all others 
 
210 
 
 CREDITORS' BILL— CRIMINAL LAW. 
 
 similarly situated, under which they can come 
 in and prove their debts, no other than the plain- 
 tiff in the action can interfere with the control 
 thereof ; and there is nothing in the pendency of 
 such action to prevent any otlier judgment cred- 
 itor from commencing a separate suit for simi- 
 lar relief. Sup. Ct., Sp. T., 1876, O'Brien v. 
 Browning, 49 How. 109. 
 
 21. Receiver. In a creditor's action to set 
 aside certain conveyances as in fraud of credit- 
 ors, where it appeared that such conveyances 
 were in fact mere powers of attorney and revoca- 
 ble, but the grantee therein had possession and 
 claimed title under them, and the plaintiff did 
 not know what the property was so as to be able 
 to levy on it, the court appointed a receiver and 
 required its delivery to him, that it might be 
 sold to satisfy the plaintiff's debt. Sup. Ct., 1875, 
 Young V. UeermanSf 5 Hun, 121. 
 
 22. Decree for sale, etc. Where, in an ac- 
 tion in the nature of a creditor's bill, a mortgage 
 and conveyance are adjudged fraudulent, it is 
 the usual and better practice to direct the ap- 
 pointment of a receiver, and a sale by him, yet 
 it is not improper to direct a sale on execution 
 by the sheriff. Sup. Ct., 1875, Kennedy v. Bar- 
 andon, 4 Hun, 642. 
 
 23. Where it does not appear that there are 
 other creditors beside the plaintiff, the decree 
 should only declare the conveyances fraudulent 
 as to the plaintiff's claim, and direct a sale for the 
 payment thereof, with costs ; and should not 
 direct the surplus to be brought into court. lb. 
 
 24. The court, in setting aside a sale of land by 
 a judgment debtor as being fraudulent against 
 creditors, cannot decree a sale and conveyance 
 by a master or referee, without requiring the 
 owner of the legal estate to join in the convey- 
 ance, or to convey to a receiver. A sale and 
 conveyance by a referee, under such a decree 
 would convey no title. Sup. Ct., 1873, Uawley v. 
 Brown, 65 Barb. 107. 
 
 25. Judgment. In an action by a judgment 
 creditor to reach real estate conveyed away by 
 the debtor, where the proof shows that it was 
 so conveyed for a valuable consideration, but with 
 fraudulent intent on the part of the vendor and 
 vendee, the plaintiff is not entitled to judgment 
 setting aside the conveyance as fraudulent, but 
 merely that the property be sold and his judg- 
 ment be paid out of the proceeds. Sup. Ct., 
 1873, Orr v. Gilmore, 7 Lans. 345. 
 
 26. Relief to plaintiff. Although in a cred- 
 itor's action the plaintiff has claimed specifically 
 other relief, and sought as a judgment creditor to 
 reach the supposed interest of the debtor in 
 lands conveyed to another, yet, he is entitled 
 to such judgment as the law pronounces upon 
 the facts pleaded and proved, whether specifi- 
 cally asked for or not ; and he may have a judg- 
 ment enforcing a trust in his favor resulting from 
 the payment of the purchase-money by his debt- 
 or. N. Y. Supr. Ct., 1874, Donovan v. Sheridan, 
 37N. T. Supr. (5J. & Sp.)266. 
 
 27. Execution pending suit. A judgment 
 creditor who commences a creditor's suit in order 
 to reach real estate conveyed away by the debt- 
 or, is not confined to that remedy, but may, 
 pending the action, proceed to sell such real es- 
 tate on execution upon his judgment. Ct. App., 
 1872, Erickson v. Quinn, 15 Abb. N. S. 166 ; S. C, 
 50N.Y. (5 Sick.) 697. 
 
 28. Notwithstanding such sale, he may pro- 
 ceed with his creditor's action, to obtain a judg- 
 ment declaring the previous conveyance fraudu- 
 lent thus removing the obstruction to the sale. 
 lb.' 
 
 CEIMINAL LAW. 
 
 I. In GENERjii. 210 
 
 II. Crimes AND misdemeanobs 211 
 
 III. The indictment 214 
 
 IV. Pleas and defenses 217 
 
 V. The teial 217 
 
 VI. Evidence ; witnesses 220 
 
 VIL Vekdict ; arbest of judgment ; 
 
 SENTENCE ; commitment 226 
 
 VIII. Exceptions; appeal; new trial; 
 
 cebtiokabi ; writ op error 227 
 
 I. In General. 
 
 1. Arrest •without ■warrant. At common- 
 law an officer cannot make an arrest without 
 warrant, where there was no breach of the peace. 
 Sup. Ct., 1871, Butolph T. Blust, 41 How. 481 ; 
 S. C, 5 Lans. 84. 
 
 2. The charter of the city of Syracuse confers 
 power upon any alderman or policeman to arresti 
 without warrant, any person found by them com- 
 mitting any violation of a city ordinance. Such 
 an arrest may therefore be made for cruelly 
 whipping a horse in a public street, which is for- 
 bidden by ordinance. lb. 
 
 3. Such arrest may be made within a reason- 
 able time ; and as a general rule, a delay of half 
 an hour would not be unrtasonable, or deprive 
 the officer of the right to make it. lb. 
 
 4. An officer cannot arrest, without warrant, a 
 person who commits a misdemeanor in his pres- 
 ence and within his jurisdiction, after such per- 
 son has escaped from his jurisdiction. lb. 
 
 5. Jurisdiction. The Court of Sessions hav- 
 ing obtained jurisdiction of a criminal case does 
 not lose it merely because one of the justices of 
 the court, who is necessary to its due organ- 
 ization, is called from the bench as a witness ip 
 the action, and sworn and examined without 
 objection, and then returned to the bench. Ct. 
 App., 1874, People v. Dohring, 59 N. Y. (14 
 Sick.) 374. 
 
 6. It seems that such practice is erroneous, and 
 would be fatal to the judgment if objection was 
 made and exception taken. lb. 
 
 7. Bigamy. An actual arrest, before indict- 
 ment found, gives jurisdiction to the courts of 
 the county where it was made of the crime of 
 bigamy, although it was committed in another 
 county ; nor will a subsequent escape or dis- 
 charge on bail destroy such jurisdiction when 
 once acquired. Sup. Ct., 1876, King v. People, 6 
 Hun, 297. 
 
 8. Offense on board vessel. In order to 
 give the court jurisdiction to try an offense 
 committed on board a vessel in respect to the 
 cargo or lading, under 2 S. S. 727, sec. 44, as 
 amended by ch. 431, Laws of 1860 (2 Edm. Stats. 
 750), it must be alleged in the indictment that 
 such offense was committed " on board the boat 
 or vessel," and that the boat or vessel, on that 
 trip or voyage, had passed through some part of 
 the county where the indictment was found; 
 and both those facts must be proved. Sup. Ct, 
 1871, Larkin v. People, 61 Barb. 226. 
 
 9. Removal to Oyer and Terminer. Whe- 
 ther or not it is essential to the jurisdiction of 
 the Court of Oyer and Terminer to try an in- 
 dictment found in the Court of Sessions, that 
 there should be an order of the latter court 
 sending it there for trial, it has jurisdiction 
 where such an order has been made and an entry 
 of the substance of it indorsed on the indictment, 
 and subsequently entered in the minutes of the 
 clerk. Sup. Ct., 1874, People v. Myers, 2 Hun, 6. 
 
CRIMINAL LAW. 
 
 211 
 
 10. No caption to the indictment being neces- 
 sary until the removal to another court for trial, 
 the at&xing it is a mere ministerial act, and may 
 be done by the derk at any time. IbT 
 
 11. Disorderly persons. The act classing 
 professional thieves, etc., among disorderly per- 
 sons, and providing for their summary arrest 
 and trial (ch. 857, Laws 1873), is constitutional 
 and valid ; and it is the duty of an officer, wlien 
 he finds a person Isnown to him to be within 
 eitlier of tlie described classes, at any of the 
 places designated in the act, and has good reason 
 to believe that such person is there for unlaw- 
 ful purposes, to arrest him. Sup. Ct., 1873, People 
 V. McCarthy and Same v. Warner, 45 How. 97. 
 
 12. As the act now stands, a previous convic- 
 tion of such person of one of the crimes therein 
 referred to must be proved, otherwise he must 
 be discharged. lb. 
 
 13. Compensation to witness. In proper 
 cases, e. g., in cases of homicide where insanity 
 is set up as a defense, it is proper for the district 
 attorney to procure tlie attendance of skilled 
 witnesses, and to contract to pay them extra 
 compensation to secure' their attendance. Ct. 
 Oy. and Ter., 1871, People v. Montgomery, 13 Abb. 
 N. S. 207. 
 
 n. CeIMES and MI8DEMEANOBS. 
 
 See chaps. 53, 116, 262, 327, 340, 436, 440, and 
 570, Laws of 1874, ch. 411, Laws of 1872, de- 
 claring certain oSenses to be misdemeanors. 
 
 14. Arson. If tliere is an occupant actually 
 in a dwelling house at the time when a Are set 
 by an incendiary catches such, house, although 
 she was previously awakened and afterwards 
 escaped, the crime is arson in the first degree. 
 Sup. Ct., 1874, Woodford v. People, 3 Hun, 310; 
 Aff'd by Ct. App. 
 
 15. Burning woollen mill. The burning of 
 a building intended for the manufacture of 
 woollen goods, while in process of erection and 
 before the frame is entirely up, or the floors 
 laid, or any part of it ready for occupation for 
 any purpose, or for the reception of machinery, 
 will not support a conviction under 2 R. S. 667, 
 sec. 4 (2 Bdm. Stats. 686), for burning a build- 
 ing erected for such manufacture. Gkovek, 
 Peckham and Folger, JJ., dissent Ct App., 
 1871, McGary v. People, 45 N. T. (6 Hand,) 153 ; 
 Rev'g S. C, 2 Lans. 227. 
 
 16. Assault with intent to kill. In order 
 to convict of this crime, the assault must have 
 been committed under such cirnumstances that, 
 had death ensued, the offense would have been 
 at least murder in the second degree. Ct. App., 
 1874, Slatterly v. People, 58 N. Y. (13 Sick.) 354. 
 
 17. Cruelty to animals. The driver and 
 conductor of a street car, who cause or suffer the 
 horses to be overloaded or overdriven by reason 
 of taking on too many passengers, are both 
 guilty of a violation of the statute against cruelty 
 to animals (ch. 375, Laws 1867), and are liable 
 to prosecution therefor, although in tlie employ 
 and acting under the orders of the railroad com- 
 pany. N. Y. Gen. Sess., 1868, People v. Tinsdale, 
 10 Abb. N. S. 374. 
 
 18. The commission of the offense does not 
 depend upon the intent of the party, but the 
 intent may be inferred from the act itself. lb. 
 
 19. If the owner and superintendent of an 
 omnibus line, knowing that a horse is diseased, 
 Sick and unfit to work, wilfully cause him to be 
 harnessed and attached to the omnibus with 
 another horse, and driven with heavy loads over 
 the omnibus route, they are guilty of wilfully. 
 
 unjustifiably and cruelly causing him to be over- 
 loaded, within the prohibition of sec. 1, ch. 375, 
 Laws 1867, 7 Edra. Stats. 86 ; N. Y. Gen. Sess., 
 1874, People v. Brunell, 48 How. 435. 
 
 20. If, knowing such horse to be in that con- 
 dition, they cruelly, wilfully, unnecessarily and 
 unjustifiably caused him to be so driven and 
 worked, and thereby caused him necessarily to 
 suffer torture or torment, or great bodily or 
 physical pain, they are guilty of causing such 
 horse to be tortured and tormented, within the 
 meaning of that statute. lb. 
 
 21. The question is not, whether they really 
 intended to torture the horse, but whether they 
 wilfully caused certain things or acts to be done, 
 which did necessarily torture him. lb. 
 
 22. The abuse of a dog, while being used upon 
 a treadmill or in any other serviceable employ- 
 ment, when it amoimts to cruelty, is a crime, and 
 punishable the same as if it was a higher animal. 
 Sup. Ct., 1875, People ex rel. Walker v. Court of 
 Special Sessions, etc., 4 Hun, 441. 
 
 23. Smbezzlement. A carrier who receives 
 a check, payable to the order of a third person 
 to whom he is indebted, as an advance on freight 
 of property to be carried by him, and delivers it 
 to such person, cannot be deemed guilty of em- 
 bezzlement, under the statute relative to embez- 
 zlement by carriers and others (2 R. S. 679, sec. 
 62, as amended by ch. 729, Laws 1865 ; 2 Edm. 
 Stats. 699), such disposition of it being appar- 
 ently with the consent and according to the in- 
 tent of the party making the advancement. 
 Sup. Ct., 1871, Larkin v. People, 61 Barb. 226. 
 See ch 207, Laws of 1874:. 
 
 24. A tradesman to whom raw materials are 
 entrusted to be converted into manufactured 
 articles, e. g., leather stock to be made into 
 shoes, — and who contracts and receives them in 
 good faith, is a mere bailee and not the clerk or 
 servant of his employer, and cannot be held 
 guilty of embezzlement upon his subsequently 
 converting the manufactured articles. Ct of 
 Sess., 1871, People v. Burr, 41 How. 293. 
 
 25. If such conversion was an embezzlement, 
 it would be an embezzlement of the manufac- 
 tured articles, not of the stock. lb. 
 
 26. False pretences. In order to sustain 
 an indictment for obtaining signatures to prom- 
 issory notes given for the price of property sold 
 the maker by false pretences, the pretence 
 alleged to be false must have formed some part 
 of the inducement to the doing of the act, and 
 must be of some existing fact, and made for the 
 purpose of inducing the act Sup. Ct, 1872, 
 Scott V. People, 62 Barb. 62. 
 
 27. Such an indictment cannot be sustained 
 on a representation by the defendant, as to the 
 price of property which he was selling for 
 another, that he did not think the owner would 
 take less than a sum stated, no representation 
 being made as to the price, at the time of the 
 sale, except by the owner. lb. 
 
 28. The fact that the price asked, and finally 
 agreed to be paid by the purchaser, was fixed 
 by collusion between the owner and the defend- 
 ant, for the purpose of defrauding the pur- 
 chaser, would not constitute the offense. lb. 
 
 29. Under an indictment charging that the 
 prisoner falsely represented himself to be a 
 police officer, and that he had a warrant for the 
 arrest of the complainant for a criminal offense, 
 whereby the latter was induced to part with 
 valuable property ; — Held, that the necessary 
 import of the language was, that the property 
 was parted with for an unlawful purpose, to 
 induce a supposed officer to violate his duty, and 
 
212 
 
 CRIMINAL LAW. 
 
 the indictment could not be sustained. Peck- 
 ham, J., dissents. Ct. App., 1871, McCord v. 
 People, 46 N. Y. (1 Sick.) 470. 
 
 30. The design of the law is to protect those 
 who, for some honest purpose, are induced by 
 fraud to give credit, or part with their property 
 to another, and not to protect those who part 
 with their goods for some unworthy or illegal 
 purpose, fb. 
 
 31. Forgery. An instrument in the form of 
 an account against a county for constable's ser- 
 vices, with the affidavit of the claimant, jurat 
 and signature of the justice, as required by law 
 to entitle it to be audited and paid, is such an 
 instrument as may be the subject of forgery, 
 witliin 2 R. S., 673, sec. 33 (2 Edm. Stats. 693). 
 Sup. Ct., 1873, Roseh-ansv. People, * Hun, 287. 
 
 32. The bill of items, signature to the affida- 
 vit and signature to the jurat, in such a case, are 
 not different instruments within the meaning of 
 that statute, since they are all necessary to com- 
 plete the account for presentation to the county 
 board, lb. 
 
 33. In order to convict of the crime of forge- 
 ry, the instrument charged to be forged must 
 be apparently valid on its face. Sup. Ct., 1875, 
 Cunningham v. People, 4 Hun, 455. 
 
 34. IjE a statute authorizes an instrument not 
 known to the common law, and so prescribes its 
 form as to render any other form null, forgery 
 cannot be committed of such an instrument by 
 making one not in conformity to the statute, 
 even though so like the genuine as to be likely 
 to deceive most persons. lb. 
 
 85. A material alteration made in a note after 
 delivery, and without the knowledge or consent 
 of the maker, is not necessarily a forgery ; but 
 that depends upon the intention with which it 
 was made, and a fraudulent or felonious intent 
 is not to be presumed, but must be proved. Sup. 
 Ct., 1871, Flint V. Craig, 59 Barb. 819. 
 
 86. Erasing from a bond an indorsement 
 made thereon of the payment of money to apply 
 on it, does not constitute forgery, or any crime. 
 Sup. Ct., 1872, Dennis v. Ryan. 5 Lans. 850 : S. C, 
 63 Barb. 145. 
 
 37. Under the statute making it forgery in 
 the third degree to make a false entry in any 
 book of accounts kept in the office of the State 
 Treasurer, &c., with intent to defraud, a clerk of 
 the State Treasurer may be convicted of forgery 
 for making a false entry in a ledger under his 
 control in the Treasurer's office with intent either 
 to charge the bank against which it was made 
 therewith, or to cover up any illegal taking of 
 money by himself at that or any other time, or 
 for any other fraudulent purpose. Oy. and Ter., 
 1874, People V. Phelps, 49 How, 462. 
 
 38. Indecent exposure. Where six women 
 indecently exposed their persons for hire, in the 
 presence of five men, in a rear room of the 
 second story of a house of prostitution, the 
 doors, windows and shutters being closed ; — 
 Held, that they were properly convicted of the 
 crime of indecent exposure in a public place. 
 Sup. Ct., 1875, People ex rel. Lee v. Bixbv, 4 Hun, 
 636. 
 
 39. Such persons might be jointly prosecuted 
 and convicted, the offense being a misdemeanor, 
 committed by all at the same time, each aiding 
 and abetting the other. lb. 
 
 40. Larceny. If, by a trick or artifice, the 
 owner of property, is induced to part, not with 
 the right of property, but with the custody or 
 naked possession simply, to one who taljes it 
 animofurandi, the taking will be larceny. So 
 held, where the owner's wife was induced to 
 
 give up some money and a watch, to one who, 
 with a felonious intent, falsely represented that 
 her husband had been arrested for crime and 
 had sent him to obtain them. Ct. App., 1873, 
 Smith V. People, 53 N. T. (8 Sick.) 110. 
 
 41. Obtaining the possession of goods by 
 means of an artifice, such as sending for them 
 for the purpose of exhibition and sale to a cus- 
 tomer, with the understanding that such as are 
 not sold, and the price of such as are sold, shall 
 be retiirned to the owner, with the felonious 
 intent to deprive the owner of them, and after- 
 wards keeping them, constitutes the crime of lar- 
 ceny. Sup. Ct., 1875, Carpenter v. Beare, 4 Hun, 
 509 ; Aff'd by Ct. App. 
 
 42. Such a case is distinguished from obtain- 
 ing money by false pretences by the fact that, 
 in the latter case, the owner intends to part with 
 his title. lb. 
 
 43. A purchaser of goods for cash on delivery, 
 who, having obtained from the vendor's clerk 
 the bill of lading, for the purpose simply of 
 examining the goods, gains possession of them 
 by means thereof and removes them, with intent 
 to convert the same to his own use, is guilty of 
 larceny. Ct. App., 1871, Bassett v. Spofford, 45 
 N. Y. (6 Hand,) 387. 
 
 44. Where one party went to a store and 
 ordered goods to be sent to a particular house, 
 where the bill would be paid, and on being 
 carried to such house by a clerk, another party 
 took them, saying : " These are the goods my 
 sister ordered ; I will look at them," and went into 
 another room and did not return, but some of 
 the goods were afterwards found in another 
 house, where both such parties resided j — Held, 
 that this was a mere fraud and trick and not an 
 obtaining of the goods by purchase ; but to con- 
 vict either or both of larceny there must have 
 been a felonious plot between them to steal the 
 goods, and such a felonious intent on the part of 
 the one when she ordered them and of the other 
 when she obtained possession of them. Sup. Ct., 
 1873, St. Valerie v. People, 64 Barb. 426. 
 
 45. The taking of property from the wife of 
 the owner, or prosecutor, under such circum- 
 stances as to show that the prisoner knew the 
 property was not hers and that she liad no right 
 to part with it, and that he intended wrongfully 
 to defraud the owner thereof, are sufficient to 
 constitute the crime of larceny ; and, although 
 the wife was induced to part with the property 
 by means of threats of the disclosure of her 
 criminal intimacy with the prisoner, the fact of 
 her adultery need not be proved. Ct. App., 
 1871, People v. Cole, 43 N. Y. (4 Hand,) 508. 
 
 46. A talking of property from the construc- 
 tive possession of the owner, or the possession 
 of his agent, or any one standing in his place in 
 respect to the possession, is sufficient to support 
 the charge of larceny. Ct. App., 1870, People 
 V. McDonald, 43 N. Y. (4 Hand,) 61. 
 
 47. Where one, with felonious intent, received 
 from the owner a gold draft and indorsed it, 
 leaving it, in the presence and with the consent 
 of such owner, with a broker who promised to 
 provide the coin for the owner at an hour named, 
 and then returning before the hour, received 
 the coin from the broker and converted it to 
 his own use, — Held, larceny. lb. 
 
 48. A clerk of the State Treasurer, who 
 receives from the comptroller a draft sent to 
 him in payment of taxes, for the Treasurer and 
 at the "Treasurer's office, receives it for the State 
 and is a simple custodian thereof, the posses- 
 sion being in the Treasurer, and having no 
 discretion to exercise, except perhaps as to 
 
CRIMINAL LAW. 
 
 213 
 
 which of the banks of deposit it shall be placed 
 in, if he takes and uses it so as to deprive the 
 State thereof, he is guilty of larceny, even 
 though when it came into his hands he may 
 have had no intent to steal it. Oy. and Ter., 1874, 
 People V. Phelps, 49 How. 437, 451. So, also, 
 if he takes and uses under like circumstances a 
 draft first received by another clerk. Oy. and 
 Ter., 1874, People v. Phelps, 49 How. 470. 
 
 49. To constitute larceny of a draft, it is not 
 necessary that it should be legally available in 
 the hands of the thief, by proper indorsement ; 
 but it is sufficient that the owner has been de- 
 prived of a valuable thing, whether the thief 
 can legally obtain any benefit from its posses- 
 sion or not. Oy. and Ter., 1874, People v. 
 Phelps, 49 How. 437, 451. 
 
 60. The statute does not make an indorse- 
 ment necessary to its being deemed of value 
 when stolen, but if in " any event or contin- 
 gency " anything may be collected thereon, it is 
 of that value. lb. 
 
 51. To constitute the crime of larceny, there 
 must be a taking or severance of the goods 
 from the possession of the owner ; but a mo- 
 mentary possession by the thief is sufficient. 
 Where, therefore, a prisoner indicted for that 
 crime had thrust his hand into the pocket of 
 complainant, and seized his pocket-book con- 
 taining a large amount of money and securities, 
 lifting it about three inches from the bottom of 
 the pocket, when he was prevented, — Held, that 
 the offense was complete. Ct. App., 1872, Har- 
 rison V. People, 50 N. Y. (5 Sick.) 518. 
 
 52. Where the prosecutor handed to a bar- 
 tender a $50 bill, from which to take 10 cents 
 in payment for a glass of soda, and the 
 latter placed a few coppers on the counter, and 
 when asked for the change put the prosecutor 
 out of doors and kept the money, — Held, that 
 the prosecutor did not part with either the pos- 
 session of, or the property in the bill, but, until 
 the change was paid to him, the delivery was 
 incomplete, and the bill remained in legal con- 
 templation under his control and in his posses- 
 sion ; and upon these facts the bar-tender could 
 properly be convicted of larceny. Sup. Ct., 1874, 
 Uilderbrand v. People, 1 Hun, 19 ; Aff'd, S. C, 
 56 N. Y. (11 Sick.) 394. 
 
 53. From person. Under sec. 2, ch. 874, Laws 
 1862, a person who steals property from the 
 person of another of less value than $25, may, 
 in the discretion of the court, be punished as 
 for grand larceny. Sup. Ct., 1872, Higgins v. 
 People, 7 Lans. 110. 
 
 54. Mere proof of the taking of bank bills of 
 certain denominations, without any proof of 
 their genuineness as bills or circulating media, is 
 not sufficient to warrant a conviction for lar- 
 ceny, lb. 
 
 55. Petty larceny. The effect of the provis- 
 ions of the Revised Statutes in relation to the 
 petit larceny as a first offense, is to reduce it 
 practically to the grade of a misdemeanor, 
 although it may not have clianged its name. 
 Sup. Ct,, 1872, People ex rel. Stetzer v. Rawson, 
 61 Barb. 619. 
 
 56. Homicide. If one of several persons, 
 who have united and are present in the prose- 
 cution of an unlawful purpose or common de- 
 sign, commits a homicide, all are liable to 
 answer criminally for the act ; and if such hom- 
 icide committed within the common purpose is 
 murder, all are guilty of that crime. Oy. and Ter., 
 Sup. Ct. and Ct. App., 1871, Ruloff v. People, 
 11 Abb. N. S. 245 ; S. C, 45 N. Y. (6 Hand,) 213 ; 
 Aff'gS. C, SLans. 201. 
 
 57. The common guilty purpose of resisting 
 tp the death any person who should endeavor 
 to apprehend them, need not have been formed 
 when they first went out with a common design 
 to commit a larceny, in order to render them all 
 principals in a murder perpetrated by one of 
 them while so resisting. lb. 
 
 58. The wilful killing of an unborn child is 
 not manslaughter, except as made so by statute ; 
 and to sustain an indictment for that crime, un- 
 der ch. 681, Laws of 1869 (7 Edm. Stats. 464), or a 
 conviction of an attempt to commit the offense 
 there prohibited, it is necessary to prove that 
 the child was " quick " at the time of the com- 
 mission of the wrongful acts charged. Gbover, 
 J., dissents. Evans v. People, 49 N. Y. (4 Sick.) 86. 
 
 Division of murder into two degrees, ch. 644, Imws 
 0/1873. 
 
 59. Mayhem. The external ear of a man is 
 a member of his body, and to bite off the greater 
 part of it is to disable it and to commit an of- 
 fense within the statute of mayhem. Sup. Ct., 
 1875, Godfrey v. People, 5 Hun, 369 ; Rev'd by 
 Ct. App. 
 
 60. If, at the instant of biting, the prisoner 
 intended to take the external ear off with his 
 teeth, and did it, that is sufficient premeditation 
 or malice aforethought to justify his convic- 
 tion, lb. 
 
 61. To bring the act of biting off part of a 
 man's ear within the fourth class nanied in the 
 statute relative to mayhem, it must be done on 
 purpose, and not be the result merelyT)f an un- 
 expected, instantaneous encounter, or of the 
 heat of sudden passion, or of the excitement 
 produced by fear of bodily harm. Sup. Ct., 1875, 
 Burke V. People, 4 Hun, 481. 
 
 62. Since the statute 22 and 23 Car. II. chap. 
 1, followed by 2 R. S. 665, sec. 36, the crime of 
 mayhem includes those injuries only which are 
 therein enumerated ; and an injury to the head, 
 not being among them, does not constitute that 
 crime. Ct. App., 1872, Foster v. People, 50 
 N. Y. (5 Sick.) 698. 
 
 63. Murder. The law infers a man's intent 
 from his acts ; and when a man takes a weapon 
 from his pocket, and without any cause or pro- 
 vocation thrusts it into another in a vital part and 
 kills him, the law infers the intention to take 
 his life. Ulster Oy. and Ter., 1874, People v. Bat- 
 ting, 49 How. 392 
 
 64. Although drunkenness does not excuse a 
 crime, yet, since the act of 1873, dividing the 
 crime of murder into two degrees, and making 
 a " deliberate and premeditated design " essen- 
 tial to the crime of murder in the first degree, 
 the jury may take into consideration tlie intox- 
 ication of the prisoner at the time of commit- 
 ting the crime, for tlie purpose of fixing the 
 grade of the crime, and determining whetlier 
 his intent possessed the element of deliberation 
 or not. lb. 
 
 65. The fact that a husband detected his wife 
 committing adultery, and thereupon instantlv 
 struck the blow from the effects of whicli slie 
 died, does not make the killing manslaughter, 
 where such blow was given with intent to kill, but 
 it is murder in the first degree. Sup. Ct., 1875, 
 Shufflin V. People, 4 Hun, 16 ; Aff'd by Ct. App. 
 
 66. Perjury. To sustain a conviction for 
 perjury, the matter sworn to upon wliich the 
 perjury is assigned must be material, and its 
 materiality must be proved. Ct. App., 1874, 
 Wood V. People, 59 N. Y. (14 Sick.) 117; Rev'g 
 
 S. C, 1 Hun, 381. 
 
214 
 
 CRIMINAL LAW. 
 
 67. A false oath as to any fact or circumstance 
 which is material as part of an entire case, is 
 perjury, although it did not tend directly to 
 prove the issue, but merely tended to support 
 and give credit to the witness in respect to the 
 main fact, and although the case failed from 
 want of proof of another essential fact. lb. 
 
 68. Although the date when a person testify- 
 ing as a witness was at a certain place may be a 
 material fact upon the trial of a civil action, yet 
 it is not material whetlier he knew that the 
 hotel where he stayed kept a register or not, 
 and therefore his intentionally swearing falsely 
 that he did not know such hotel kept a register, 
 does not make him guilty of perjury. Ct. Oy. 
 and Ter., 1873, People v. Pearsall, 46 How. 121. 
 
 69. Perjury in the verification of an answer 
 cannot be assigned on an admission contained 
 therein, that the plaintiff' discounted said $850 
 note "and paid this defendant, the then holder 
 thereof, the sum of $500, and no more," and that 
 no further or other sum had ever been paid by 
 the plaintiff for or on account of said note," 
 where the complaint is upon a promissory note 
 by an indorsee, in the ordinary form, since those 
 words are not responsive to the complaint and 
 do not form an issue. Sup. Ct., 1875, People r. 
 Christopher, 4 Hun, 805. 
 
 70. Neitlier can it be assigned on an allegation 
 in the form : he " says he denies " each and 
 every allegation not admitted ; that not amount- 
 lug to a denial of such allegations. lb. 
 
 71. But it may be assigned on an allegation in 
 the form : he " says that tlie said last described 
 note is fully paid and satisfied." lb. 
 
 72. Under ch. 563, Laws of 1868, false swear- 
 ing before the metropolitan fire marshal, as to 
 tlie value of the property lost bj' tlie witness in 
 a fire, the origin of which is being investigated 
 by such marshal, is perjury and punishable as 
 such. That statute remains unrepealed. Sup. 
 Ct., 1875, Harris v. People, 4 Hun, 1. 
 
 73. Rape. In order to constitute the crime of 
 rape of a female over ten years of age, the inter- 
 course must be entirely against her will ; and 
 where it appears that she was at the time con- 
 scious, and in possession of lier natural mental 
 and physical powers, and was not overcome by 
 numbers, or terrified by threats, or in such place 
 and position that resistance would have been 
 useless, it must also be made to appear that she 
 did resist to the extent of her ability at the time 
 and under the circumstances. Ct. App., 1874, 
 People V. Dohring, 59 N. Y. (14 Sick.) 374. 
 
 74. A charge to the jury, on the trial of an 
 indictment for rape, that if they believed, from 
 all the evidence, that the complainant was not a 
 virgin, it did not lessen the crime in the least 
 degree, — Held, correct. Sup. Ct., 1874, Higgins 
 V. People, 1 Hun, 307 ; Aff'd by Ct. App. 
 
 75. Robbery is distinguished from larceny 
 from the person by the fact that the former 
 must be accompanied by circumstances of vio- 
 lence, threats or terror to the person despoiled, 
 wliile tlie latter is accomplished secretly, or by 
 surprise or fraud. Sup. Ct., 1874, Mahoney v. 
 Peoiile, 48 How. 185 ; S. C, 3 Hun, 202 ; Aff'd S. 
 C. 59 N. Y. (14 Sick.) 659. 
 
 76. Wliere tlie evidence showed that, as the 
 complainant was entering a street car, an ac- 
 complice of the prisoner crowded him against 
 tlie door, and the prisoner at the same time 
 tlirew his arms around complainant's neck, 
 pulled liim towards himself, and removed a 
 wallet from his pocket, — Held, that there was 
 sufficient violence to constitute robbery. lb. 
 
 77. It is not the extent and degree of force 
 
 which make the crime, but the success thereof. 
 The force which is sufficient to take the property 
 against the owner's will is all that the statute 
 contemplates. lb. 
 
 78. To constitute the crime of robbery in the 
 first degree, it is not necessary, either at com- 
 mon law or under the statute of this State, that 
 the property taken should belong to the person 
 robbed. It is sufficient if he has the charge or 
 custody of the property. Ct. App., 1872, Brooks 
 v. People, 49 N. Y. (4 Sick.) 436. 
 
 79. Seduction. A conditional promise to 
 marry, in case the female will consent to illicit 
 connection, is sufficient to bring the case within 
 the statute (ch. Ill, Laws of 1848) making se- 
 duction under promise of marriage a crime. Ct. 
 App., 1873, B(yyce v. People, 55 N. Y. (10 Sick.) 
 644. 
 
 80. Where the accused, to induce the pros- 
 ecutrix to assent to his purpose, declared to her 
 that he would never marry a girl unless he was 
 satisfied she was a virgin, which fact he could 
 only ascertain in this way ; but upon her ex- 
 pressing apprehension that he would leave her 
 if she yielded, assured her, in the strongest 
 terms, that he would marry her, — Held, that it 
 was to the promise and not to any test of virtue 
 that she gave consent, and that the crime was 
 complete. lb. 
 
 81. Selling liquor -without license. The 
 provisions of sec. 29, ch. 628, Laws of 1857, 
 regulating the sale of intoxicating liquors, which 
 declare certain offenses to be misdemeanors, 
 and prescribe the punishment therefor, have ref- 
 erence only to the specific acts enumerated in 
 the same section, and do not apply to all and 
 every of the offenses under the statute, not ac- 
 companied by specific provisions fixing their 
 character and punishment. Ct. App., 1874, Foo(e 
 V. People, 56 N. Y. (11 Sick.) 321. 
 
 82. The offense of selling strong, spirituous, 
 and intoxicating liquors, in quantities less than 
 five gallons, without license, specified in sec. 13 
 of said act, is a misdemeanor punishable by in- 
 dictment, in the manner prescribed by 2 R. S., 
 647, sec. 40, which fixes the punishment for mis- 
 demeanors not otherwise provided for. lb. 
 
 n. The Indictment. 
 
 83. Caption. An indictment taken at the 
 sessions must, in the caption, state that the 
 grand jurors were then and there sworn and 
 charged ; and such caption should be affixed by 
 the clerk in case the indictment is removed from 
 the sessions to the Oyer and Terminer, other- 
 wise it will be held bad in that court. Oy. and 
 Ter., 1872, People v. Town Auditors of Castleton, 
 44 How. 238 ; S. C, 13 Abb. N. S. 431. 
 
 84. Averment of facts. An indictment 
 against officers for misconduct in office, must 
 aver the facts which give character to their act 
 and render it criminal, otherwise it will be held 
 bad on motion to quash. lb. 
 
 85. Thus, an indictment which charges a 
 board of town auditors with having audited ac- 
 counts which were " unjustly illegal, — pretended 
 or extortionate," without averring any facts 
 which would make them so, is fatally defective, 
 lb. 
 
 86. An indictment upon a statute must state 
 all the facts and circumstances which constitute 
 the statutory offense, so as to bring the accused 
 perfectly within the provisions of the statute. 
 Ct. App., 1873, Wood v. People, 53 N. Y. (8 
 Sick.) 511. 
 
 87. Under 2 E. S. 699, sec. 8, prescribing the 
 
CRIMINAL LAW. 
 
 215 
 
 penalty for the commission of a second offense 
 after a discharge from state prison on the first 
 conviction, " either upon being pardoned or upon 
 the expiration of liis sentence," an indictment 
 ■wliich states merely the conviction and discharge, 
 without also'stating the manner of discharge, is 
 insufficient. lb. 
 
 88. Second offense. In order to bring a case 
 within the statute denouncing a more severe 
 penalty for a second offense, the former con- 
 viction and discharge must be alleged in the in- 
 dictment, and, upon issued joined, must be 
 proved on tlie trial and passed upon by the jury. 
 Ct. App., 1874, Johnson v. People, 55 N. Y. (10 
 Sicls.) 512; AfE'g S. C, 65 Barb. 342. 
 
 89. The fact tliat proof of the former convic- 
 tion tends to prove the bad cliaracter of the 
 prisoner, and that too by proof of specific acts, 
 does not render it incompetent, because it re- 
 lates to the issues to be tried. lb. 
 
 90. Proof of the discliarge of the prisoner 
 from imprisonment under tlie former conviction, 
 eitlier by pardon or by expiration of sentence, 
 is necessary, notwithstanding the term for which 
 he was sentenced has expired. lb. 
 
 91. An indictment which sets out the former 
 conviction and sentence of the prisoner for grand 
 larceny, and that liaving been so convicted, 
 " and having been duly discharged and remitted 
 of such judgment and conviction, afterward " 
 committed the crime of petit larcenj', sufiBciently 
 alleges his discharge, " either upon being par- 
 doned or upon tlie expiration of his sentence," 
 to authorize tlie court to impose upon him the 
 sentence provided by law in such cases, on prop- 
 er proof thereof being made. Sup. Ct., 1876, 
 Gibson V. People, 5 Hun, 542. 
 
 92. Charging several offenses. Whether 
 several separate and distinct offenses, each 
 amounting to a misdemeanor, upon which an 
 indictment could be framed, may be charged in 
 one indictment in separate counts, and the 
 prisoner put upon his trial for all the alleged 
 offenses at the same trial, before the same jury, 
 query f Ct. App., 1875, People ex rel. Tweed v, 
 Liscomb, 60 N. Y. (15 Sick.) 559. 
 
 93. Though different felonies cannot be charg- 
 ed in different counts of the same indictment, 
 yet the same felony maybe charged in different 
 ways in different counts, to meet the facts of the 
 case. Sup. Ct., 1875, Harris v. People, 4 Hun, 1. 
 
 94. Perjury in oral testimony given before an 
 ofiScer, and perjury in swearing to substantially 
 the same matters in an affidavit taisen before 
 such officer at the same time, may properly be 
 charged in separate counts of the same indict- 
 ment, lb. 
 
 95. In order to render a count of an indict- 
 ment void for duplicity it must describe sever- 
 al offenses in adequate terms ; and allegations 
 as to an offense not so described will be regard- 
 ed as surplusage. Sup. Ct., 1874, Rosekrans v. 
 People, 3 Hun, 287. 
 
 96. A count which alleges that the defendant 
 falsely made, forged and counterfeited, with in- 
 tent to defraud the county, a document purport- 
 ing to be an account against such county, with 
 an affidavit of the claimant, and certificate of 
 the justice, as required to entitle it to be pre- 
 sented to and audited by the board of supervi- 
 sors, setting it out as a single instrument, and in 
 hcec verba, is not double. lb. 
 
 97. The charging in one count, of the use of 
 several prohibited means to perpetrate a crime, 
 all constituting the single offense specified, is 
 proper and authorized. Ct. App., 1874, People 
 T. Davis, 56 N. Y. (11 Sick.) 95. 
 
 98. Time. An indictment or a complaint will 
 be good, although the day and year when the 
 offense was committed are not expressly aver- 
 red, if they can be gathered from the whole 
 statement therein. Sup. Ct., 1874, Gill v. People, 
 3 Hun, 187 ; AfE'd, 60 N. Y. (15 Sick.) 643. 
 
 99. Venue. Under the provisions of the Re- 
 vised Statutes (2 R. S. 727), which declare that, 
 when an offense shall be committed on tlie 
 boundary of two counties or within 500 yards of 
 sucli boundary, an indictment for the same may 
 be found and a trial and conviction thereon had 
 in either of such counties, an indictment is suffi- 
 cient which charges the offense in an adjoining 
 county within tlie specified limits, and it needs 
 not that it be laid in the county where the in- 
 dictment is found. Ct. App., 1874, People v. 
 Davis, 56N. Y. (10 Sick.) 95. 
 
 100. Aiding and abetting. Whether a prin- 
 cipal in the second degree, can be convicted 
 under an indictment for aiding and abetting in 
 the crime, in a case where the principal in the 
 first degree cannot be convicted, query % Sup. 
 Ct., 1871, Temple v. People, 4 Lans. 119. 
 
 101. In such a case, it seems, the indictment 
 should charge him as principal, not as aider and 
 abettor. lb. 
 
 102. Arson. Several degrees of the crime of 
 arson cannot properly be charged in tlie sime 
 count of an indictment. Sup. Ct., 1874, Wood- 
 ford V. People, 3 Hun, 310 ; Aff'd by Ct. App. 
 
 103. Where several houses are destroyed by 
 a fire started by an incendiary in one of them, 
 he may properly be indicted as for one ofiense, 
 and if the destruction of each amounts to the 
 same degree of arson, there need be but one 
 count, charging the burning of all the houses. 
 lb. 
 
 104. An indictment which charges the prison- 
 er with setting fire to the houses of certain per- 
 sons named, and of divers other persons to the 
 jurors unknown, " there being then and there 
 within the said dwelling-houses some human 
 being," sufficiently alleges the presence of a 
 human being in each house ; and, if it did not, 
 the error would be cured by a waiver on the 
 part of the prosecution of any claim to convict 
 except as to one specific house, and a charge to 
 the jury that they must find the prisoner guilty 
 of setting fire to that house or acquit him. lb. 
 
 105. Assault, etc., -with deadly ■weapon. 
 An indictment under the statute providing a 
 punishment for " an assault and battery upon 
 another, by means of any deadly weapon, or by 
 such otlier means or force as was likely to pro- 
 duce death, with the intent to kill," etc. (2 Edm. 
 Stats. 685, sec. 36), need not aver that the as- 
 sault was with a deadly weapon ; but it is suffi- 
 cient if it states the means used, and alleges 
 that such means was likely to produce death. 
 Sup. Ct., 1874, Lenahan v. People, 3 Hun, 164. 
 Aff'd by Ct. App. 
 
 106. False pretenses. An indictment set- 
 ting out, in substance that the prisoner, with in- 
 tent feloniously to cheat and defraud a person 
 named, did knowingly, etc., represent to him 
 that a certain bank check, which he then ami 
 there delivered to him, purporting to have been 
 drawn by one P. Smith upon the Ocean Bank 
 of the City of New York, dated, etc., for the 
 sum of $140, was a good and genuine cheek ; 
 and that he, the prisoner, had money on deposit 
 in said bank, and said check would be paid on 
 presentation, — Held, sufficient to bring the case 
 within the statute against false pretenses, and 
 that other allegations denominating tlie check 
 as a false token, might be rejected as surplus- 
 
216 
 
 CRIMINAL LAW. 
 
 age. Ct. App., 1872, Smith t. People, 47 N. Y. 
 (2 Sick.) 303. 
 
 107. Forgery. An indictment which charges 
 that the defendant falsely made, forged and 
 counterfeited an instrument within the statute, 
 with intent to defraud, setting forth such in- 
 strument in hcec verba, is sufficient. Sup. Ct , 
 1874, Rosekrans v. People, 3 Hun, 287. 
 
 108. Larceny. A draft sent to the comptrol- 
 ler of tlie State in payment of taxes, becomes 
 the property of the State when received by him, 
 as against a thief, especially after it has been 
 transferred to the State treasurer, and entered 
 upon his official books as the property of the 
 State ; and it may properly be charged in an 
 indictment for the larceny thereof as the prop- 
 erty of the State. Oy. and Ter., 1874, People v. 
 Phelps, 49 How. 437, 451. 
 
 109. It should be charged as belonging to 
 " the State," not to the people of the State, the 
 title being vested in the corporate body. lb. 
 
 110. Such a draft is personal property, and 
 averments of the taking thereof and of' its 
 value, sufficiently state the crime of larceny, 
 without any allegation that the amount which 
 it purports to secure is the sum actually due 
 thereon. lb. 
 
 111. Mayhem. An indictment which charged 
 that the prisoner did feloniously, wickedly, and 
 of his malice aforethought, make an assault 
 upon the complainant with his teeth ; and did 
 feloniously and wilfully, from premeditated de- 
 sign and on purpose, bite off, disable and destroy 
 the left ear of the complainant, and did with 
 force and arms, wilfully, feloniously, of his 
 malice aforethought, and on purpose, maim the 
 complainant, etc., is sufficient to sustain a con- 
 viction of mayhem. Sup. Ct., 1875, Godfrey v. 
 People, 5 Hun, 369. 
 
 112. Perjury. It is sufficient, in an indict- 
 ment for perjury, to allege that the court was 
 held, and the perjury committed in a county 
 named ; and the precise locality is not matter of 
 description, and need not be proved as alleged. 
 Sup. Ct., 1874, Wood V. People, 1 Hun, 381 ; 
 Bev'd by Ct. App. 
 
 113. If the court is alleged to have been held 
 in a certain town named, and the perjury to 
 have been committed in a village named, the 
 C(}urt will take judicial notice whether such vil- 
 lage is in such town. lb. 
 
 114. In an indictment for perjury, the time 
 stated when the oath was administered is not 
 material, provided it was before the finding of 
 the indictment and within the statute of limita- 
 tions, lb. 
 
 116. If the offense is sufficiently assigned in 
 any one count of the indictment, a conviction 
 can be sustained although the other counts are 
 defective. lb. 
 
 116. An indictment for perjury should cor- 
 rectly state the name of the court in which the 
 offense is alleged to have been committed, and 
 charge it to have been committed in the county 
 where the indictment is found ; and should show 
 that the evidence on which the assignment of 
 perjury is based, was material to the determin- 
 ation of the issue, or at least proper to be of- 
 fered on the trial of such issue. Sup. Ct., 1871, 
 Geston v. People, 4 Lans. 487 ; S. C, sub nom, 
 Guston V. People, 61 Barb. 35. 
 
 117. An indictment which charges that the ac- 
 tion in which the perjury was committed, was 
 pending in the " Supreme Court of the City of 
 New York," and that the referee who adminis- 
 tered the oath was appointed by the " Supreme 
 Court of the City and County of Ifew York," 
 
 is fatally defective, in that it does not show the 
 offense to have been committed before any court 
 known to the law or having a legal existence. lb. 
 
 118. An indictment which alleges that "it 
 then became and was a material issue to be 
 tried whether the said J G had committed adul- 
 tery, as alleged by the plaintiff in the said ac- 
 tion," but nowhere alleges that the evidence 
 given by the defendant, or the questions calling 
 it out were material to the determination of that 
 issue, nor shows what was " alleged by the 
 plaintiff in said action," is fatally defective. lb. 
 
 119. An indictment which alleges the com- 
 mission of the crime of perjury before the 
 Board of Inspectors of Election, " then and 
 there duly authorized to administer the oath," 
 is not defective for not stating the names or 
 number of the inspectors. Sup. Ct., 1871, Burns 
 V. People, 5 Lans. 189 ; S. C, 59 Barb. 531. 
 
 120. Nor is it defective for not stating that the 
 inspectors were acting for a particular ward. lb. 
 
 121. Where such indictment alleges that the 
 prisoner was " duly sworn and took his corporal 
 oath," it is not defective for not specifying the 
 particular mode in which he was sworn, or the 
 particular oath which he took, or for not show- 
 ing that the statutory oath was administered to 
 him, and that he falsely swore to anv part there- 
 of, lb. 
 
 122. The averment that a general election was 
 held at the place where the oath was adminis- 
 tered, pursuant to the laws and constitution of 
 the State, before a board of inspectors legally 
 constituted and authorized according to law, is 
 sufficient, without stating that the place had 
 been legally appointed for holding the election, 
 lb. 
 
 123. An indictment which charges the prisoner 
 with falsely swearing that he had not voted pre- 
 viously at the same election, and assigns that 
 he had done so at a place named, without stat- 
 ing that it was before a board of officers 
 duly constituted and authorized, or that any 
 lawful election had been appointed or held at 
 the place, is faulty in substance ;■ and the defect 
 is not obviated by the statute of jeofails. lb. 
 
 124. An indictment for wilfully and corruptly 
 swearing false in an affidavit made for the 
 purpose of obtaining audit of an unliquidated 
 claim against the City of Buffalo, pursuant to 
 the city charter (false swearing to any material 
 fact in any affidavit authorized by that act, 
 being thereby declared perjury), which does 
 not aver that the affidavit was one authorized 
 by the charter, or was made for a purpose re- 
 quired thereby, or that the claim to which it 
 was appended was ever presented to the com- 
 mon council for audit, is fatally detective. Sup. 
 Ct., 1875, Ortner v. People, 4 Hun, 323. 
 
 125. Selling liquor. It is sufficient, in an 
 indictment for selling liquor without license, to 
 allege that it was sold in the Ninth ward of the 
 city of New York, to be drank in the house, 
 store, shop and place of the seller, without 
 stating the name of the street or number of the 
 house. Sup. Ct,, 1875, Schwab v. People, 4 Hun, 
 520. 
 
 126. Violation of Sunday Law. A com- 
 plaint which charges the defendant with a violar 
 tion of the Sunday law, " in tending lock on 
 the D. & H. canal," &c., is defective if it does 
 not allege some particular place where the 
 offense was committed. Sup. Ct., 1875, People 
 ex rel. Lawrence v. Lyons, 5 Hun, 643. 
 
 127. The words " tending loch " do not of 
 themselves purport the performance of servile 
 labor not necessary, and the defendant cannot 
 
CRIMINAL LAW. 
 
 217 
 
 be convicted of a violation of the statute, where 
 lie admits tlie tending of loclc, but denies that 
 it was contrary to any statute. lb. 
 
 128. Motion to quash. One good count in 
 an indictment is sufficient to sustain a convic- 
 tion under a general verdict, irrespective of 
 otlier defective counts. Ct. App., 1874, People 
 V. Da-ois, 56 N. Y. (11 Sick.) 95. 
 
 129. The accused has not a legal right to 
 have the sufficiency of an indictment, or of any 
 count therein, determined upon motion to quash 
 or set it aside; nor to put the prosecutor to his 
 election, when more than one offense is charged 
 upon which he will proceed. lb. 
 
 130. The setting aside of a defective indict- 
 ment upon motion is in the discretion of the 
 court ; and, unless the question is free from 
 doubt, it will not do it, but will leave the counsel 
 to his demurrer or motion in arrest of judg- 
 ment, lb. 
 
 IV. Pleab and Defenses. 
 
 131. Defense of possession. One wnose 
 occupation of a house is that of a servant to 
 the owner, has no right to retain possession after 
 the termination of his service, but the landlord 
 may remove his furniture and goods therefrom, 
 using the force necessary to that end, and he 
 will not be justified in using force to prevent 
 such removal. Ct. App., 1875, Kerrains v. People, 
 60 N. Y. (15 Sick.) 221. 
 
 132. Former trial. Irregularities whereby a 
 lawful verdict is prevented, produce a mistrial, 
 which is no bar to another trial on the same in- 
 dictment. Sup. Ct., 1871, People v. Reogle, 60 
 Barb. 527. 
 
 133. If, after a case has been tried and sub- 
 mitted to the jury, they separate without author- 
 ity and without agreeing upon any verdict, such 
 trial is no bar to another trial on the same in- 
 dictment. Such separation would be good cause 
 for discharging the jury, and the discharge 
 would be no bar to another trial. lb. 
 
 134. Grand jury illegal. A special plea, 
 founded upon the alleged illegal organization of 
 the grand jury, should be interposed before a 
 plea to the merits, or it will be deemed waived ; 
 and the refusal of the court afterward to enter- 
 tain such, plea is not the subject of exception. 
 Ct. App., 1870, People v. Allen, 43 N. Y. (4 
 Hand,) 28. 
 
 135. Insanity. The test of responsibility for 
 criminal acts, where insanity is interposed as a 
 defense, is the capacity of the defendant to dis- 
 tinguish between right and wrong, at the time 
 of and with respect to the act complained of ; 
 and the power of choosing one from the other 
 is not recognized as an element in that test. Ct. 
 App., 1878, Flanagan v. People, 52 N. Y. (7 Sick.) 
 467. 
 
 Judicial inquiry as to sanity of prisoner. See 
 ch. 666, Laws of 1871 ; ch. 446, Laws of 1874. 
 
 136. La'w repealed. A prisoner cannot 
 legally be tried and convicted for the violation 
 of a statute which has been repealed before the 
 trial. Sup. Ct., 1875, Powell v. People, 5 Hun, 
 169 ; Aff'd by Ct. App. 
 
 137. Once in jeopardy. Where It is dis- 
 covered, after the commencement of a trial, 
 that the prisoner has not been arraigned nor 
 asked to plead to the indictment, and thereupon 
 he is arraigned and pleads not guilty, and he 
 objecting to further proceedings on the indict- 
 ment the jury is discharged, such partial trial 
 does not constitute legal jeopardy, "exempting 
 him from the further prosecution of the same 
 
 indictment. Sup. Ct., 1875, King v. People, 5 
 Hun, 297. 
 
 138. It seems that if , after he had been arraigned 
 and pleaded to a valid indictment, a witness had 
 been sworn and given evidence, and then, with- 
 out his consent, a juror had been withdrawn or 
 the jury discharged, it would have constituted 
 legal jeopardy. lb. 
 
 139. Provocation. Words of provocation, 
 not uttered in the hearing of the prisoner, but 
 communicated to him by others, can never be 
 permitted to reduce the grade of a homicide 
 committed because of them, from murder to 
 manslaughter. Sup. Ct., 1873, Fralich v. People, 
 66 Barb. 48. 
 
 140. Self-defense. To justify a person who 
 is assailed in using a weapon in self defense, it 
 is sufficient for him to show a reasonable ground 
 for apprehending a design to take his life or do 
 him some great bodily harm, and that the 
 danger of the accomplishment of such design 
 is imminent, even though it may afterward turn 
 out that such appearances were false, and that 
 there was no such design, or any danger of its 
 being accomplished. Sup. Ct., 1875, Evers v. 
 People, 3 Hun, 716. 
 
 141. The failure of the assailed to seek the pro- 
 tection of the authorities does not deprive him 
 of the right to defend himself to the same extent 
 and by the same means as if he had done so. lb. 
 
 "V. The trial. 
 
 142. Changer of venue. In order to entitle 
 the accused to a change of the place of trial, he 
 must make a clear case that, by reason of pop 
 ular passion or prejudice, he cannot have a fair 
 and impartial trial in the county where the 
 venue is laid. Affidavits stating such to be the 
 belief of the affiants are not sufficient, but facts 
 and circumstances must be stated. Sup. Ct., 
 1875, People v.Sammis, 3 Hun, 560. 
 
 143. Accessory, trial of. A prisoner, in- 
 dicted as accessory to several principals in the 
 crime of burglary, may be tried and convicted 
 when only one of the several principals named 
 has been convicted ; but, in such case, he must 
 be arraigned and tried as accessory of the con- 
 victed principal only, the same as if such prin- 
 cipal alone were named in the indictment. Ct. 
 App., 1871, Starin v. People, 45 N. Y. (6 Hand,) 
 333. 
 
 144. Bigamy. It is not necessary that a 
 trial for bigamy should be had in the county 
 where the second marriage took place, but the 
 person charged may, under the statute (2 Edm. 
 Stats. 709), be tried in any county in which he 
 is apprehended. Sup. Ct., 1874, Collins v. Peo- 
 ple, 1 Hun, 610. 
 
 145. Election of count. Upon the trial of 
 an indictment containing two counts founded 
 on the same transaction, one for rape and the 
 other for an assault with intent to commit a 
 rape, the prosecution will not be required to 
 elect on which count to proceed. Sup. Ct., 1875, 
 People v. Satterlee, 5 Hun, 167. 
 
 146. The prosecuting officer may, in the dis- 
 cretion, of the court, be required to elect on 
 which of several distinct offenses charged in an 
 indictment he will proceed, in the case of fel- 
 onies so charged, but not in case of misde- 
 meanors. Sup. Ct., 1875, People ex rel. Tweed v. 
 Liscomb, 3 Hun, 760. 
 
 147. Challenge of jurors. The mode of 
 selecting the jury is a matter of legislative con- 
 trol, and the act providing for the trial of chal- 
 lenges by the court (ch. 427, Laws of 1873), and 
 
218 
 
 CRIMINAL LAW. 
 
 that providing that the previous foundation or 
 expression of an opinion, etc., shall not, in cer- 
 tain cases disqualify a juror (oh. 476, Laws of 
 1872), are valid. lb. 
 
 148. The act of providing that the previous 
 formation or expression of an opinion shall not 
 be ground of challenge for principal cause, in 
 case tlie proposed juror shall declare, and the 
 court shall be satisfied that he does not possess 
 such a present opinion as would influence his 
 verdict, or prevent his impartially hearing and 
 weighing the evidence, applies to the trial as 
 well of crimes committed before as after its 
 passage. Ct. App., 1873, Stokes v. People, 53 N. 
 Y. (8 Sick.) 164. 
 
 149. The property qualification of a juror, so 
 far as it depends upon the ownership of person- 
 alty must appear and be evidenced by the as- 
 sessment roll ; and if this be wanting, suitors 
 are entitled to the benefit of the challenge. 
 Thus, where a juror, at the time of being placed 
 on tlie list, was the owner of a farm, but was 
 not assessed for personalty, and before the trial, 
 sold his farm taking a mortgage back, — Held, 
 that he was subject to challenge. Ct. App., 1874, 
 Kelley v. People, 55 N. Y. (10 Sick.) 565. 
 
 150. Section 33 of 2 R. S. 415 (2 Edm. Stats. 
 432), which makes it imperative upon the court 
 to discharge a juror when it shall appear that 
 he is not the owner of personal property to the 
 value of $250, was not designed to regulate or 
 affect challenges, but simply the discharge of 
 jurors upon their own motion. lb. 
 
 151. Where a juror is challenged for favor, 
 the determination of the question of competency 
 belongs to the triers ; and the court cannot be 
 called upon to rule, as matter of law, that, upon 
 the facts proved, the juror is incompetent. Ct. 
 App., 1870, People v. Allen, 43 N. Y. (4 Hand,) 
 28. 
 
 152. The mere fact that a juror has formed 
 an opinion as to the general character of the 
 prisoner will not, per se, disqualify him. lb. 
 
 153. Impanelling jury. Where, upon call- 
 ing the roll of jurors regularly drawn and sum- 
 moned, several were discovered to be absent 
 and their names were not put in the box, and 
 after the names in the box had been exhausted 
 in impanelling a jury for a criminal case, and 
 only eleven jurors obtained, the absentees were 
 called and only one found present, and he, un- 
 der exception, took his place in the jury box, 
 and being found qualified was sworn in as the 
 twelfth juror ; — Held, that there was no error ; 
 or, if there was, it could not have prejudiced the 
 prisoner, and therefore, under 2 E. S. 728, sec. 
 52, was no ground for reversal. Sup. Ct. at 
 Chambers, 1872, People v. Rogers, 13 Abb. N. S., 
 370. 
 
 154. The court may in its discretion allow a 
 juror to be peremptorily challenged after he has 
 been sworn in, and at any time before the ac- 
 tual commencement of the trial. Ct. Oy. and Ter. 
 1873, Tweed's Case, 13 Abb. N. S. 370, note. 
 
 155. It is competent for the court, in the city 
 and county of New York, to order an additional 
 panel at any time after the ballots have been 
 deposited, without waiting for the first panel to 
 be exhausted. Sup. Ct. at Chambers, 1872, 
 Foster's Case, 13 Abb. N. S. 372, note. 
 
 156. It is entirely within the discretion of the 
 court to issue an attachment for a juror who 
 has been personally summoned and fails to at- 
 tend, or to refuse to do so, and an exception 
 will not lie to such refusal. lb. 
 
 157. It is no objection that the oath to a juror 
 when challenged and sworn for examination 
 
 did not specify the ground of challenge, if that 
 was not required at the time. lb. 
 
 158. After the regular panel has been ex- 
 hausted to make up a jury for the trial of a 
 criminal case, talesmen may be summoned from 
 the bystanders. Oy. and Ter. ; Sup. Ct. & Ct. 
 App., 1871, Rulofy. People, 11 Abb. N. S. 245; 
 S.C.,45N. Y. (6 Hand,) 213. 
 
 159. Separation of jury. The jury may, 
 in the_ discretion of the court, be allowed to sep- 
 arate during the trial, even in capital cases. Ct. 
 Oy. and Ter., 1871, Pey>le v. Montgomery, 13 
 Abb. N. S. 207. 
 
 160. Examination of Ttritnesses. Leading 
 questions may be allowed by the court in its dis- 
 cretion, and where a question as to a bloody 
 knife found upon the premises where the mur- 
 der in question was committed, not charged in 
 the indictment to have been in any way pro- 
 duced by a knife, is put upon the ground that 
 it was leading, the prisoner cannot afterward in- 
 sist that the evidence was not admissible under 
 the indictment. Sup. Ct., 1875, Shufflin v. Peo- 
 ple, 4 Hun, 16. 
 
 161. The practice of calling out evidence for 
 one purpose, apparently innocent, and using it 
 for another which is illegal, is improper ; and, 
 if it is clear and manifest that the avowed ob- 
 ject is colorable merely, the admission is error. 
 Ct App., 1873, Coleman v. People, 55 N. Y. (10 
 Sick.) 81; S. C, again, 1 Hun, 596; 58 N. Y. 
 (13 Sick.) 555. 
 
 162. If, on the trial, the prisoner calls out evi- 
 dence, on cross examination, and without objec- 
 tion, tending to show that he is not guilty of an 
 offense other than the one for which he is on 
 trial, that does not authorize the prosecution to 
 introduce evidence to show that he is guilty of 
 such other offense. lb. 
 
 163. The extent to which a cross examina- 
 tion of a witness in a criminal case shall be per- 
 mitted to proceed, is entirely within the discre- 
 tion of the court, and it may properly exclude 
 a question having no bearing on the issue or the 
 credit of^^he witness, after his examination upon 
 irrelevant matters has been unreasonably pro- 
 tracted. Sup. Ct, 1874, McGuire v. People, 3 
 Hun, 213 ; S. C, 48 How. 517. 
 
 164. When a prisoner chooses to be examined 
 as a witness in his own behalf, it is perfectly 
 proper, and it is the duty of the court to inter- 
 rogate him as fully as may be necessary to test 
 the truth of his direct testimony. Sup. Ct., 
 1874, Gill V. PeopU, 3 Hun, 187 ; Aff'd, 60 N. Y. 
 (15 Sick.) 643. 
 
 165. Obj ection to witness. An objection 
 to the wife of the accused being allowed to tes- 
 tify against him, in a prosecution for an aban- 
 donment or threatened abandonment of her, 
 must be taken at the trial. It is too late after 
 conviction. Sup. Ct, 1874, Daley v. People, 2 
 Hun, 681. 
 
 166. Rejection of evidence. It is in the 
 discretion of the trial court to reject evidence 
 offered by the prisoner, after the proofs have 
 closed and the case has been summed up to the 
 jury by both sides. Ct. App., 1873, Wilke v. 
 People, 53 N. Y. (8 Sick.) 525. 
 
 167. An error in the rejection of material evi- 
 dence is not cured by the fact tliat a question 
 calculated to call it out, when first put preced- 
 ing an offer of the evidence, is answered by the 
 witness and then immediately objected to and 
 the objection sustained. Ct App., 1874, Donii- 
 hue V. People, 56 N. Y. (11 Sick.) 208. 
 
 168. Order of proof. Upon trial of an in- 
 dictment for murder, the admission of evidence 
 
CRIMINAL LAW. 
 
 219 
 
 as to accomplices before the evidence connect- 
 ing the prisoner with them, is in the discretion 
 of tlie court. Oy. and Ter. ; Sup. Ct. ; and Ct. 
 App., 1871, Ruloffy. People, 11 Abb. N. S. 245 ; 
 S. C, 45 N. Y. (6 Hand,) 218. 
 
 169. Striking out evidence. The evidence 
 of witnesses who have once been cross-examined 
 and have left the stand without any reason to 
 expect to be called again, ought not to be 
 stricken out merely because they did not appear 
 when called again upon anotlier point ; espe- 
 cially where other evidence has been given of 
 the fact sought to be proved. lb. 
 
 170. The court cannot strike out or exclude 
 from the jury, evidence which has been received 
 tending to prove a material fact, merely because 
 it is not decisive, or its weight has been impaired 
 or destroyed by cross-examination or otherwise. 
 Sup. Ct., 1875, Lindsay v. People, 5 Hun, 104. 
 
 171. Although the judge may strike out evi- 
 dence which has been received provisionally un- 
 der objection, he cannot do so when it has been 
 received unconditionally and without objection, 
 lb. 
 
 172. The charge. It is error for the judge 
 presiding at a criminal trial to allude, in his 
 charge to tlie jury, to the fact that the prisoner 
 has not availed himself of the statutory privilege 
 of being sworn as a witness in his own behalf; 
 but such error is cured, if, on having his atten- 
 tion called to it, he afterward states to the jury 
 that there is no law requiring the prisoner to be 
 sworn, and no inference to be drawn against him 
 from the fact of his not being sworn. Oy. and 
 Ter. ; Sup. Ct. ; and Ct. App., 1871, Ruloff v. 
 People, 11 Abb. N. S. 245 ; S. C, 45 N. Y. (6 
 Hand,) 213 ; Aff'g S. C, 5 Lans. 261. 
 
 173. A charge, given on the trial of an in- 
 dictment for abortion causing death, in substance 
 that if an abortion had been committed or at- 
 tempted, resulting in death, and the prisoner 
 was connected with it, the jury must convict, 
 — Held, not objectionable for the reason that it 
 did not except the case of a necessary abortion 
 to preserve life, there being no evidence tending 
 to show such a necessity. Ct. App., 1874, 
 
 Weed V. People, 56 N. Y. (11 Sick.) 628. 
 
 174. In a case dependent upon circumstantial 
 evidence, the motive becomes an important aid 
 in completing the chain of proof, and it cannot 
 be imagined any more than any other circum- 
 stance in the case. A charge,, therefore, which 
 contains a suggestion of a motive which has no 
 foundation in the evidence, is improper, and a 
 conviction which may have been founded there- 
 on, will be reversed. Geovee and Peckham, 
 J. J., dissent. People v. Bennett, 49 N. Y. (4 
 Sick.) 137. 
 
 175. On the trial of an indictment for an as- 
 sault and battery with intent to commit a rape, 
 if the evidence is such as to raise anly a suspi- 
 cion or conjecture of the criminal intent, it is 
 clearly insufficient to warrant a conviction, and 
 the court should so charge the jury, and not 
 submit to them the question of felonious intent. 
 Sup. Ct, 1871, Reynolds v. People, 41 How. 179. 
 
 176. In such a case, an exception to the re- 
 fusal of the court so to charge is well taken, as 
 it would be in a civil action ; and the submission 
 to the jury of both the felonious intent to com- 
 mit a rape, and the crime cf assault and battery, 
 against the prisoner's objection, is error, for 
 which a verdict and judgment against him al- 
 though simply for an assault and battery, will 
 be set aside, and a new trial be granted. lb. 
 
 177. Upon the trial of an indictment for an 
 assault with intent to kill, after the court has 
 
 properly charged the jury as to what facts are 
 necessary to conviction, and the evidence appli- 
 cable thereto, the prisoner is not entitled to have 
 them instructed upon a hypothetical case not 
 founded on the evidence, or which would ex- 
 clude the hypothesis of murder in the first de- 
 gree. Ct. App., 1874, Slatterla v. People, 68 N. 
 Y. (13 Sick.) 354. 
 
 178. The question of the sufficiency of the 
 indictment is one of law, to be determined by 
 the court ; and it is not error, on the trial of one 
 indicted for false pretenses, to refuse to charge 
 the jury that the pretence must appear upon the 
 indictment to be such as could not be guarded 
 against by an exercise of common sagacity and 
 prudence or of ordinary caution. Ct. App,, 1872, 
 Smith V. People, 47 N. Y. (2 Sick.) 303. 
 
 179. Where, on the trial of an indictment for 
 larceny, tlie jury were instructed, that, from a 
 possession of the stolen property soon after the 
 commission of the offense, the law raised a pre- 
 sumption that the possessor was the guilty .party, 
 — Held, that, if this was erroneous as giving the 
 jury to understand that it was their duty to con- 
 vict upon finding that fact, the error was obvi- 
 ated by the court's subsequently directing them 
 to consider the whole question as one of fact, to 
 be determined not only upon this but all other 
 proof in the case. Ct. App., 1874, Stover v. Peo- 
 ple, 56 N. Y. (11 Sick.) 315. 
 
 180. Upon a trial for murder, the judge 
 charged in effect that the law implied motive, 
 and consequently the crime of murder in the 
 first degree, from the proof of killing the de- 
 ceased by the prisoner, and that upon this proof 
 the jury should find him guilty of that crime 
 unless he had satisfied them, by his evidence, 
 that it was manslaughter or excusable homi- 
 cide, — Held, error ; that under our statute, mere 
 proof that one' has been deprived of his life by 
 the act of another, utterly fails to show the class 
 of the homicide. Ct. App., 1873, Stokes v. People, 
 53N. Y. (8 Sick.) 164. 
 
 181. If the facts proved upon a criminal trial 
 are capable of two constructions, or if, in one 
 view of the evidence, a particular intent might 
 be found, and yet the facts justify the finding of 
 an intent involving Jinother degree of guilt, the 
 court is bound, upon the request of the prisoner, 
 to declare the rule of law applicable to the case 
 in either aspect as the jury may determine the 
 facts. Ct. App., 1872, Foster v. People, 50 N. Y. 
 (5 Sick.) 598. 
 
 182. But where, on trial of an indictment for 
 murder, it was shown that the prisoner aimed a 
 blow at the head of the deceased, with a force 
 likely to fracture the skull and which did in fact 
 crush it, resulting in death, and no other facts, 
 bearing upon the question of intent, were proved, 
 — Held, that, even if a wounding upon the head 
 could be considered mayhem (which, it seems, it 
 would not) there was no evidence from which 
 an intent to commit that crime rather than the 
 homicide charged could be inferred, and the 
 court therefore, properly refused to charge that 
 he might upon the evidence be convicted of 
 murder in the second degree, as for a homicide 
 perpetrated in committing a felony other than 
 arson in the first degree. lb. 
 
 183. Upon the trial of an indictment for rob- 
 bery from the person, the prisoner can be con- 
 victed of the lesser offense of larceny from the 
 person, or of assault and battery, if the evidence 
 only justifies such a conviction ; and it is error, 
 upon request for a charge to that effect, to in- 
 struct the jury " It is in your power to find this 
 man guilty of arson in setting fire to the City 
 
220 
 
 CRIMINAL LAW. 
 
 Hall. Tou are only to find such a verdict as the 
 facta that have heen proved before you will jus- 
 tify ; " that being in effect a charge that they 
 cannot legally convict of the lesser offense. 
 Sup. Ct„ 1874, Murphy V. People, 3 Hun, 114. 
 
 ISi. The jury has nothing to do with the 
 punishment of the prisoner if convicted, nor has 
 the degree of it any right to influence their ver- 
 dict, and the court may properly refuse to in- 
 struct them on that subject. Sup. Ct., 1874, 
 Wood V. People, 1 Hun, 381 ; Rev'd by Ct. App. 
 
 185. Specific propositions. Ajudgeisnot 
 required to charge the jury or to refuse to charge 
 them specific propositions, requested by coun- 
 sel, but it is sufficient if he charges substantially 
 upon the legal principles stated in such proposi- 
 tions, so far as they are pertinent to the case. 
 Sup. Ct. at Chambers, 1872, People v. Rogers, 13 
 Abb. N. S. 370. 
 
 186. On a trial for murder, to state to the jury 
 the distinction between manslaughter and mur- 
 der, and instruct them that it is for them to saj' 
 whether there was any evidence to justify them 
 in believing that the act was done in heat of 
 passion or not, is a substantial compliance with 
 a request to call their attention to the difference 
 between those crimes ; and the neglect to do so 
 would be no ground for reversal, where there is 
 no evidence to warrant the reduction of the crime 
 from murder to manslaughter. lb. 
 
 187. An expression of opinion by the 
 judge as to the merits of the case, is not error, 
 if he at the same time expressly submits it to 
 the jury to determine the facts. lb. 
 
 188. Neither is it error for the judge to state 
 his opinion as to the intention of the legislature 
 in allowing prisoners to testify in their own be- 
 half, even though his opinion may be wrong, if 
 he at the same time tells the jury it is for them 
 to say what credit shall be given to the prisoner's 
 statement. lb. 
 
 189. It is an interference with the province of 
 the jury, for the presiding judge to express, in 
 his charge, a positive opinion of the guilt of the 
 prisoner, but the error is cured, if he adds that 
 his opinion has nothing to do with their deliber- 
 ations, and they must judge for themselves irre- 
 spective of his opinion. Sup. Ct., 1872, Watson 
 V. People, 64 Barb. 130. 
 
 190. The judge may properly call the attention 
 of the jury to the improbability of the testimony 
 given by the prisoner in his own behalf. lb. 
 
 191. The effect of competent evidence is a 
 matter to be disposed of by the jury, and tliey 
 must be left at liberty to exercise their judg- 
 ment, uncontrolled by any positive direction by 
 the court. Sup. Ct., 1875, Templeton v. People, 
 3 Hun, 357 ; Aff'd, 60 N. Y. (15 Sick.) 643. 
 
 192. Although the evidence of experts, brought 
 upon tlie stand to sustain a theory, may be 
 looked upon with some degree of suspicion, and 
 form a very proper subject for the expression of 
 a reasonably guarded opinion by the court, yet, 
 it is error to direct the jury to put no reliance 
 upon such evidence ; or, that the opinion of a 
 medical expert upon the question of the pris- 
 oner's insanity, is not entitled to any more 
 weight than the opinions of other persons not 
 experts. lb. 
 
 193. Directing verdict. Thecourthas power 
 in a proper case to direct a verdict of acquittal, 
 but it has no power to direct a conviction in a 
 case where the prisoner has plead not guilty. 
 Sup. Ct., 1875, Howell v. People, 6 Hun, 620. 
 
 194. Questions for jury. Where there is a 
 disagreement in the testimony of experts ex- 
 amined on the trial, the court should submit to 
 
 the jury the question of the degree of credit to 
 be given to them respectively ; and it is not 
 error to refuse to charge tlie jury that the opin- 
 ions of those who had not practical experience 
 oh the subject should be disregarded. Sup. Ct., 
 1872, People v. Montgomery, 13 Abb. N. S. 207. 
 
 195. The law willnot be very astute in searcli- 
 ing to ascertain whether the person killed in at- 
 tempting to prevent the consummation of a 
 felony by others was guilty of unnecessary vio- 
 lence, in order to justify the felon in taking his 
 life. That question, together with the question 
 of intent to take life unnecessarily, are proper 
 considerations for the jury. Sup. Ct., 1871, 
 Ruloffy. People, 5 Lans. 261 ; Aff'd, S. C, U 
 Abb. N. S. 245 ; 45 N. Y. (6 Hand,) 213. 
 
 196. The law does not limit the number of 
 passengers to be carried on a street car ; and 
 the question whether a car was or was not over- 
 loaded, in violation of the statute against cru- 
 elty to animals, is a question of fact, for the 
 jury to determine upon the evidence. N. Y. 
 Gen. Sess., 1868, People v. Tinsdale, 10 Abb. N. 
 S. 374. 
 
 197. Presence of defendant. Instructions 
 or information given by the court to the jury 
 in a criminal action, in the absence of the de- 
 fendant, and in reply to questions asked by the 
 jury after having once retired, are within the 
 statute (2 Edm. Stats. 759, sec. 13), requiring 
 the presence of the defendant " during the 
 trial ; " and are good ground for reversing a con- 
 viction. Ct. App., 1870, Maurer v. People, 43 
 N. Y. (4 Hand,) 1. 
 
 198. The fact that defendant's counsel was 
 present and made no objection, will not cure the 
 error. Not even the consent of the defendant 
 himself will have that effect. lb. ' 
 
 199. Discharge of prisoner. The court of 
 Oyer and Terminer has no power, upon the 
 trial of a criminal charge, to take the case from 
 the jury, and order the discharge of the prisoner 
 upon motion, for a failure of the prosecution to 
 prove the corpus delicti ; but it may, and it is its 
 duty, in a proper case presenting questions of 
 law only, to instruct the jury to acquit the pris- 
 oner, and to enforce the direction. Ct. App., 
 1872, Petgile v. Bertnett, 49 N. Y. (4 Sick.) 137. 
 
 VI. Evidence ; witnesses. 
 
 200. Judicial notice. A jury cannot take 
 judicial notice that a particular point in a city 
 street where the crime charged is alleged to 
 have been committed, about nine o'clock at 
 night, was likely to be deserted at that time of 
 night. Sup. Ct., 1874 Lenahan v. People, 8 Hun, 
 164 ; Aff'd by Ct. App. 
 
 201. Presumptions. Delay in making com- 
 plaint, on the part of the person who alleges the 
 commission of a rape upon her, for a consider- 
 able time after an opportunity to disclose the 
 fact, raises a presumption of the falsehood of 
 her testimony ; but such delay may be excused 
 or justified by fear, excitement or the like, and 
 its effect depends upon the circumstances of the 
 case. Ct. App., 1874, Hiqgins v. People, 58 N. 
 Y. (13 Sick.) 377 ; AfE'g g. C, 1 Hun. 307. 
 
 202. The mere contradiction of a witness in 
 one material fact, by competent and reliable 
 witnesses, does not justify the rejection of her 
 testimony in every partictdar, unless it appears 
 that her testimony in that respect was wilfullj' 
 and designedly false. lb. 
 
 203. Mere lapse of time after conviction of an 
 offense punishable by imprisonment in tlie State 
 prison, will not authorize the presumption of a 
 
CRIMINAL LAW. 
 
 221 
 
 discharge, such as would bring the offender with- 
 in the terms of the statute prescribing a penalty 
 for the commission of a second offense, after a 
 discharge "either upon being pardoned, or 
 upon the expiration of his sentence." Ct. App., 
 1873, WoodY. Pedple, 63 N. Y. (8 Sick.) 511. 
 
 204. Notwithstanding the statute making the 
 accused a competent witness, at his own request, 
 declares that his neglect or refusal to testify shall 
 not create any presumption against him, yet, 
 when he has exercised his option and become a 
 witness, he is made competent for all purposes in 
 the case ; and if, by his own testimony, lie can 
 rebut or explain a fact tenSing to show his guilt, 
 if Innocent, and he fails to do so, the same pre- 
 sumption arises that would arise from the failure 
 by any other witness to give an explanation 
 which was in his power. Ct. App., 1874, iStover 
 V. People, 66 N. Y. (11 Sick.) 816. 
 
 205. Possession of stolen property recently 
 after the larceny, without explanation, does not 
 create a presumption of law of the guilt of the 
 possessor ; but the question remains one of fact 
 to be determined by the jury upon that circum- 
 stance together with the other evidence in the 
 case. lb. 
 
 206. Assattlt vrith intent to ravish. Evi- 
 dence that, although the person charged with 
 the offense took grossly improper liberties with 
 the person of a female, they were accompanied 
 by no violent force, and were not resisted fur- 
 ther than by telling him to stop and trying to 
 get away, and no noise or outcry was made suf- 
 ficient to alarm others in an adjoining room, is 
 not sufficient to sustain an indictment for an 
 assault and battery with intent to commit a 
 rape. Sup. Ct., 1871, Reynolds v. People, 41 How. 
 179. 
 
 207. Best. When an instrument or document 
 is not a fact in issue, and is merely used as evi- 
 dence to prove some act, independent proof 
 aliunde is receivable. Thus, the object of pend- 
 ing suits may be shown by parol, for the pur- 
 pose of showing the prisoner's motive in killing 
 one who was a witness therein. Sup. Ct., 1876, 
 Murphy V. People, 4 Hun, 102. 
 
 208. Good character. Evidence of good 
 character is always admissible in favor of a per- 
 son accused of crime, whether the proof of such 
 crime is direct or merely circumstantial. Where 
 the proof is direct such evidence is to be consid- 
 ered upon the question of its credibility. Ct. 
 App., 1874, Stover v. People, 66 N. Y. (11 Sick.) 
 315. S. P. iiemsen v.Peo/)fa, 43 N.Y. (4 Hand,) 6. 
 
 209. It is error to charge, that the jury may 
 consider such evidence, but should not allow it 
 to affect the result except in case of a well rea- 
 soned doubt arising from the whole testimony. 
 lb. 
 
 210. Circumstantial. The crime of burglary 
 may be established by evidence of a large 
 number of circumstances, tending to show the 
 prisoner's knowledge of the premises, and facil- 
 ities for access thereto, his possession of bur- 
 glar's tools and attempts to conceal them, the 
 finding with them a piece of newspaper evidently 
 cut from a paper found in his house, and the 
 like, which when arranged in logical order and 
 applied to him, leave no reasonable doubt of his 
 guilt. Sup. Ct., 1874, People v. Myers, 2 Hun, 6. 
 
 211. Upon the trial of an indictment for 
 burglary in a store, evidence is admissible of the 
 disappearance of other goods in addition to those 
 mentioned in the indictment, as tending to show 
 the nature and extent of the crime. Sup. Ct., 
 1874, Foster v. People, 3 Hun, 6; S. C, 49 How. 
 69. 
 
 212. Evidence that a box of burglar's tools, 
 found in an express office shortly after the bur- 
 glary, and produced on the trial, was made for the 
 prisoner and taken to his house, and sent away 
 by an express wagon, marked with his name, 
 and that he was at the express office when it 
 was found, is sufficient to connect him with it. 
 lb. 
 
 213. After the reception of the box and its 
 contents in evidence, without any objection that 
 the prisoner had not been sufficiently connected 
 with it, there can be no valid objection to per- 
 mitting a witness to state the names of the tools 
 in the box. lb. 
 
 214. Upon the trial of a person for arson, evi- 
 dence may properly be received to show that he 
 was seen in the vicinity of a barn which was 
 burnt the same night of and previous to the com- 
 mencement of the fire in question, with a view 
 merely to show his whereabouts and conduct. 
 Sup. Ct., 1874, Woodford v. People, 3 Hun, 310 ; 
 Aff'd by Ct App. 
 
 215. The corpus delicti, in cases of murder and 
 manslaughter, has two components, viz. : Death 
 as the result, and the criminal agency of another 
 as the means, and one or the other of them 
 must be proved by direct evidence ; but where 
 one is so proved the other may be established by 
 circumstantial proof. Ct App., 1872, People v. 
 Bennett, 49 N. Y. (4 Sick.) 137. 
 
 216. In determining a fact from circumstan- 
 tial evidence, not only should the hypothesis of 
 guilt flow naturally from the facts proved and 
 be consistent with them all, but the evidence 
 must be such as to exclude, to a moral certainty, 
 every hypothesis but that of guilt. lb. 
 
 217. Photographs of dead persons, who are 
 alleged to have been connected with a burglary 
 and a murder, taken after such bodies have lain 
 in the water about two days and a night, may be 
 exhibited to witnesses who were acquainted with 
 them in Ufe, as aids in their identification. Oy. 
 and Ter. ; Sup. Ct. and Ct App., 1871, Ruloff v. 
 People, 11 Abb. N. S. 245; S. C, 45 N. Y. (6 
 Hand,) 213 ; Aff'g S. C, 6 Lans. 261. 
 
 218. Burglai^s tools, and parts of a newspaper, 
 found in a room Occupied by the prisoner pre- 
 vious to the murder, and connected by the proof 
 with other tools left on the scene of the murder, 
 or found on the body of an accomplice, and with 
 them a part of the same newspaper, also peculiar 
 shoes fitting the prisoner and found on the scene 
 of the murder, may be used as corroborative 
 evidence ; even without proof that the articles 
 found in the prisoner's apartment were there 
 with his knowledge, before he left it. lb. 
 
 219. Evidence tending to prove any fact con- 
 stituting an element of the crime charged, is 
 competent, although it may also have a tendency 
 to prove the prisoner guilty of some other crime. 
 Ct App., 1874, Weed v. People, 56 N. Y. (11 
 Sick.) 628 
 
 220. Confederate's acts, &c., of. Where 
 there is evidence sufficient to justify the cpnclu- 
 sion that a number of persons were all acting with 
 a common purpose and a common design in the 
 commission of a criminal offense, although there 
 may have been no previous combination to com- 
 mit the particular offense charged, the acts and 
 declarations of each are competent evidence 
 against the others. Ct. App., 1874, Kelley v. 
 People, 65 N. Y. (10 Sick.) 566. 
 
 221. Parties performing disconnected overt 
 acts, all contributing to tlie same result and the 
 consummation of the same offense, may by the 
 circumstances and their general connection or 
 otherwise, be satisfactorily shown to be conspir- 
 
222 
 
 CRIMINAL LAW. 
 
 atora and confederates in the commiBsion of 
 the offense. lb. 
 
 222. To make the act8 and declarations of an 
 alleged confederate competent eridence against 
 a prisoner, it mnst be proved -prima fade, or sach 
 evidence g^ren as to make the qnestion one 
 proper for the determination of the jnry, that 
 the two were co-conspiiatois in the commission 
 of the offense charged. Ct. App., 1873, Omaba v. 
 PeopU, 53 S. Y. (8 Sick.) 472. 
 
 223. Where the only evidence implicating the 
 prisoner was that she entered a store in company 
 with two other women, one of whom, while she 
 was at another counter examining and purchas- 
 ing a cheap shawl, secreted a valnable India 
 shawl upon her person and left the store with 
 her companion, when she was immediately ar- 
 rested ; and her companion, coming back, whis- 
 pered something to the prisoner, who, on being 
 asked if she knew the other two, replied, yes, 
 that she came into the store with them; — Hdd, 
 jioX prima faae proof of a conspiracy between the 
 three, so as to authorize evidence of the acts and 
 declarations of the two after they left the store. 
 lb. 
 
 224. The mere statement by one conspirator 
 of what has been already done in furtherance of 
 the common object, is not evidence against his 
 co-conspirators. Ct. App., 1874, People v. Davis, 
 56 N. T. (11 Sick.) 95. 
 
 225. TJponthetrialofaprisonerjointlyindicted 
 with another for a crime, a witness may prop- 
 erly be asked what such prisoner said and what 
 the other prisoner said in the police court, when 
 charged with the crime. Sup. Ct., 1874, McGuire 
 T. People, 3 Han, 213 ; S. C, 48 How. 517. 
 
 226. Date. A witness who states that a trans- 
 action occurred at a given date, cannot be per- 
 mitted to confirm or corroborate his evidence by 
 showing a paper made and signed by him at that 
 date. Ct Oy. and Ter., 1873, PeopU v. Peanhall, 
 46 How. 121. 
 
 227. Declaratioiis and admiBHionB. Con- 
 fessions or statements made by a prisoner in ref- 
 erence to the crime with which he is charged, if 
 made volnntarily are admissible in evidence 
 against him ; and the fact that they were made 
 while he was in custody, under arrest for the of- 
 fense, does not deprive them of their voluntary 
 character. Sup. Ct., 1872, People v. Montgomery, 
 18 Abb. N. S. 207. 
 
 228. Such statements made by him shortly 
 after the act, of his want of memory thereof, 
 are not admissible in his own favor. lb. 
 
 229. Statements and admissions made by the 
 prisoner after the commission of the ofiense^ are 
 competent evidence against him, and may be 
 proved, either by himself, or by any other per- 
 son who knew of them. Sup. Ct, 1873, Fratieh 
 V. People, 65 Barb. 4a 
 
 230. The prisoner may, therefore, when testi- 
 fying in his own behalf, be asked questions with 
 a view of impeaching liim by contradictory 
 proof, ^he same as any other witness. lb. 
 
 231. The testimony of the prisoner that he 
 was unconscious of what he did when com- 
 mitting the crime, and for some time afterward, 
 may be shown to be untrue by proof that he 
 soon afterward related to a witness the manner 
 in which it was committed. lb. 
 
 232. On trial of a criminal indictment, evi- 
 dence that the accused, when declarations touch- 
 ing his guilt, the tmtii or falsity of which he 
 must have known, were made in his presence, 
 remained silent when it would have been proper 
 for him to speak, is competent ; and this not- 
 withstanding he may have been under arrest at 
 
 the time. Ct App., 1874, Kelleg r. People, 55 
 N. T. (10 Sick.) 565. 
 
 233. Where, of two parcels of money found 
 on a prisoner indicted for larceny, one corres- 
 ponded closely with a description given by die 
 prosecutor at the time, in the hearing of the 
 prisoner, of the money stolen from him, and the 
 latter making no reference to fitaX, requested 
 that the two be kept separate as the other was 
 " bar money ; " Held, that evidence of this was 
 admissible as an implied acquiescence of the pis- 
 oner in the truth of the prosecutor's statement lb. 
 
 234. The examination of a prisoner before the 
 committing magistrate, signed by him, and 
 shown by the testimony of such magistrate to 
 have been read to the prisoner according to the 
 uniform practice of iiis court, is admissible in 
 evidence against him on the trial Snp. Ct, 
 1875, Godfrey r. PeopU, 5 Hnn, 369. 
 
 23-5. On the trial of an indictmentfor forgery, 
 evidence of admissions by the accused of pre- 
 vious forgeries is inadmissible, even for the 
 purpose of showing a criminal intent Ct App., 
 1874, PeqiU V. Corbin, 56 N. T. (11 Sick.) 363. 
 
 236. On a trial for murder, statements made 
 by the deceased on the day preceding the crime, 
 whether by way of threat or otherwise, if made 
 in the absence of the prisoner, are incompetent 
 Ct App., 1871, Mesmer v. PeopU, 45 N. T. (6 
 Hand.) 1. 
 
 237. A statement made by tbe complainant to 
 a third party, in the absence of the defendant, 
 that he was afraid the defendant would return 
 and assault him, is not admissible in evidence 
 for the prosecution on a trial for mayhem. Sup. 
 Ct, 1875, Burhe v. PeopU, 4 Hun, 481. 
 
 238. Dying declaiations. Dying declaia' 
 tions are admissible in cases of homicide only 
 when the death of the deceased is the subject of 
 the charge, and the circumstances of the death 
 are the subject of the dying declarations. Ct 
 App., 1874, PeopU v. Davis, 56 N . Y. (11 Sick.) 95. 
 
 239. Under the statute to prevent abortions 
 (ch. 181, Laws of 1872), the doing of the acts 
 prohibited is a crime in the absence of the death 
 of either mother or child, such death only in- 
 creasing its degree, and the punishment The 
 charge is not a homicide in any degree, and con- 
 sequently, upon trial of an indictment therefor, 
 dying declarations are not admissible. lb. 
 
 240. Upon the tri^ of an indictment for mur- 
 der, the declarations of the deceased, although 
 made in extremis, are not admissible if not state- 
 ments of facta, bnt simply expressions of the 
 opinions and conjectures of the deceased as to 
 who caused her death. Sup. Ct, 1874, Shaw r. 
 PeopU, 3 Hun, 272. 
 
 241. The previous declarations of the deceased 
 " that she had poison and knew how to nse it," 
 and tiiat rather " than Mrs. 6. should hare her 
 children, she would put them all under the sod," 
 are admissible for the defense, as tending to sus- 
 tain the theory that she administered poison to 
 herself and her children- lb. 
 
 242. Privileged r-nm-m-imiryatirmti Upon a 
 trial for murder, an attorney employed by the 
 prisoner to draw certain papers to be executed 
 as between him and the deceased on the day of 
 the alleged murder, cannot be examined, against 
 the objection of the prisoner, as to lus having 
 drawn such papers, or as to the contents thereof 
 or their condition when delivered by him to the 
 prisoner ; especially, where such papers were 
 themselves wholly irrelevant, or in no manner 
 necessarily connected with the perpetration of 
 any crime. Sup. Ct, 1872, Graham t. PeopU, 
 63 Barb. 468. 
 
CRIMINAL LAW. 
 
 223 
 
 243. Documentary. A defendant indicted 
 for false pretenses in representing a bank clieok, 
 transferred by liim, to be genuine, and tliat he 
 had f and-s in tlie bank to meet it, liaving waived 
 the produution of the bank books, the testimony 
 of the book-keeper as to what persons had funds 
 on deposit in the haiik is competent. Ct. App., 
 1872, Smith v. People, 47 N. Y. (2 Sick.) 303. 
 
 244. TJpon the trial of an indictment for an 
 assault with intent to kill, where a police sur- 
 geon testifies that he made a memorandum on a 
 slate of a statement made by the complaining 
 witness when first broiiglit to the station house, 
 but cannot fully remember it, and a police ser- 
 geant testifies that he received such elate from 
 the surgeon, copied the memorandum and then 
 rubbed it off the slate, such copy is admissible 
 in evidence. Sup. Ct., 1875) Adams v. People, 3 
 Hun, 654. 
 
 245. Upon trial of an indictment for murder, 
 the minutes of the grand jury showing that that 
 body had ordered an indictment against the pris- 
 oner for another offense upon complaint of the 
 deceased, — Held not competent as furnishing a 
 motive for the commission of the crime charged, 
 in the absence of proof that the accused knew 
 of the action of such jury, and improper for 
 the purpose of showing him guilty of another 
 crime. Ct. App., 1873, Stokes v. People, 53 N. Y. 
 (8 Sick.) 164. 
 
 246. It is no objection to the admissibility in 
 evidence of the record of a prisoner's former 
 conviction for perjury, that it shows upon its 
 face that sentence was pronounced by a court 
 constituted of different persons from those before 
 whom the trial was had ; nor that there appears 
 no certificate that it is a true bill attached to the 
 indictment, where that objection to the indict- 
 ment, was not taken upon the trial thereof. Ct. 
 App., 1874, Weed v. People, 56 N. Y. (11 Sick.) 
 628. 
 
 247. False pretences. Upon the trial of an 
 indictment for obtaining money by false pre- 
 tences, it is sufficient to show that one of the 
 representations set out in the indictment was 
 false and fraudulently made, if it satisfactorily 
 appears that it was a substantial inducement to 
 tlie parting with the money. Sup. Ct., 1874, 
 Bielscofsky v. People, 3 Hun, 40 ; Aff'd, S. C, 60 
 N. Y. (15 Sick.) 616. 
 
 248. For the purpose of showing the intent of 
 the accused in the particular offense, and also 
 the falsity of the pretext employed, evidence is 
 admissible of previous offenses of the same 
 character, committed or attempted by him. lb. 
 
 249. Forgery. Upon the trial of an indict- 
 ment for forging and uttering a check, the teller 
 of the bank on which it was drawn and by which 
 it purported to be certified, may properly be 
 asked whether he ever saw it before, whether it 
 was ever presented to him, and whether the 
 drawers, indorsers or payees of the check kept 
 accounts at such bank ; those facts being part 
 of the history of the check, although they might 
 tend to show the prisoner guilty of the crime of 
 obtaining money by false pretences. Sup. Ct., 
 1872, Watson r. People, 64 Barb. 130. 
 
 250. Evidence that the prisoner left with an 
 expressman a sealed envelope directed to the 
 payees of the check, enclosing such check, with 
 an order on them to deliver a quantity of gold 
 leaf to the bearer, and requested the expressman 
 to get from them a box and deliver it at a cer- 
 tain liotel, and that he afterward received such 
 box from the expressman and paid the express 
 charges on it, is sufficient to,be submitted to the 
 jury for the purpose of connecting the prisoner 
 
 with the offense, and to.justify a refusal to dis- 
 charge him. lb. 
 
 251. General demeanor. Upon trial of an 
 indictment for murder, the question what was 
 the general demeanor of the deceased when in- 
 toxicated, is inadmissible. Wliat her demeanor 
 was on any other occasion than that of the 
 homicide or immediately preceding it, is im- 
 material. Sup. Ct., 1875, Shufflin v. People, 4 
 Hun, 16. 
 
 252. Guilty knowledge. On the trial of an 
 indictment for receiving stolen goods, knowing 
 them to have been stolen, evidence that tlie ac- 
 cused at other times received similar articles from 
 the same thief, under like circumstances, know- 
 ing that they were stolen, is proper and admis- 
 sible for the purpose of showing guilty knowl- 
 edge in the case on trial. Sup. Ct., 1874, Cop- 
 perman v. People, 1 Hun, 15; Aff'd, S. C, 56 N. 
 Y. (11 Sick.) 591. 
 
 263. Conversations had between the accused 
 and the thief on such other occasions, tending 
 to show that the receipts on those occasions 
 were with knowledge of the theft, are also ad- 
 missible for the same purpose. lb. 
 
 254. Evidence that the accused, being a pawn 
 broker, on several such occasions bought similar 
 stolen articles at a very low price, is also com- 
 petent on the question of knowledge, although 
 it also establishes a violation by him of another 
 statute or ordinance, prohibiting pawnbrokers 
 from buying property. lb. 
 
 255. In cases where guilty knowledge is an 
 ingredient of the offense charged, as, in a prose- 
 cution for receiving stolen goods, that may be 
 proved as other facts are, by circumstantial evi- 
 dence ; and other acts, of a like character, al- 
 though involving substantive crimes, may be 
 given in evidence for that purpose, provided 
 they are necessarily connected with the act 
 which is the subject of prosecution, either by 
 some connection of time or place, or as furnish- 
 ing a clue to the motive on the part of the ac- 
 cused. Ct. App., 1874, Coleman v. People, 68 N. 
 Y. (18 Sick.) 555 ; Aff'd, S. C, 1 Hun, 596. See 
 S. C., 55 N. Y. (10 Sick.) 81. 
 
 266. Upon the trial of an indictment for 
 procuring an abortion, causing death, after 
 proof of the pregnancy of the deceased, 
 the administering of drugs to her by the prison- 
 er, which produced a miscarriage causing her 
 death, the prosecution was properly permitted 
 to introduce in evidence a circular issued by 
 the prisoner two years previously, offering his 
 services in procuring miscarriages and advising 
 females as to consultations with him, to show 
 knowledge on his part of the character of the 
 drugs, and his criminal intent in using them. Ct. 
 App., 1874, Weed v. People, 56 N. Y. ( 11 Sick. ) 628. 
 
 267. Hearsay. On the trial of an indictment 
 for larceny, in feloniously obtaining possession 
 of property by inducing the owner to send it to 
 a fictitious firm, and draw on another fictitious 
 firm for payment, evidence of statements made 
 to a witness in reply to inquiries made by him as 
 to the existence of such firms at the places where 
 they were represented to be, are mere hearsay, 
 and inadmissible. Sup. Ct., 1876, Wiggins v. 
 People, 4 Hun, 540. 
 
 258. Declarations made by a witness for a 
 prisoner, prior to the trial, to one to whom he 
 stated that he had been sent by the latter to 
 make them, are not competent evidence against 
 such prisoner, unless offered specially for the 
 purpose of showing the friendship of the witness, 
 and thus affecting his credibility. Ct. App., 
 1873, Moore v. People, 53 N. Y. (8 Sick.) 639. 
 
224 
 
 CRIMINAL LAW. 
 
 259. Impeaching. Where, for the purpose of 
 impeaching a witness for the accused, the prose- 
 cution, on her cross-examination, have ques- 
 tioned her upon collateral matters, as for in- 
 stance, whether she did not take things not be- 
 longing to her on leaving one of her employers, 
 they are bound by her answers and cannot in- 
 troduce evidence to prove them untrue. Ct App., 
 1873, Stokes v. People, 63 N. Y. (8 Sick.) 164. 
 
 260. It is not competent to impeach the pris- 
 oner as a witness, or any other witness, by con- 
 tradicting him as to facts disconnected with or 
 collateral to the subject-matter at issue and on 
 trial. Sup. Ct., 1872, Rosenzweig r. People, 6 
 Lans. 462 ; S. C, 63 Barb. 634. 
 
 261. Where a prisoner on trial for an abortion 
 upon A denies knowledge of W, a witness for 
 the prosecution, or that he had ever procured an 
 abortion upon her, it is error to permit W to 
 testify that the prisoner had procured an abor- 
 tion upon her; and such error being injurious to 
 the prisoner, cannot be disregarded, but the 
 judgment will be reversed therefor, even though 
 the other evidence may have been sufficient to 
 justify a conviction. lb. 
 
 262. On cross-examination of a witness for the 
 defense, he cannot be asked whether he has not 
 made a statement out of court inconsistent with 
 his present testimony. Ct. Oy. and Ter., 1873, 
 People V. Pearsall, 46 How. 121. 
 
 263. Where, on the trial of an indictment for 
 murder, a written statement made by a witness 
 for the prisoner, signed with his mark and sworn 
 to, on the day of the homicide, is first exhibited 
 to him and identified, and he is questioned, 
 without objection, as to its contents, making 
 contradictory statement upon material points, 
 such statement is competent evidence for pur- 
 poses of impeachment, and if any part is objec- 
 tionable as not relating to inquiries made of the 
 witness, the objection must be specifically taken 
 or it will not avail. Ct. App., 1872, Gaffneu v. 
 People, 50 N. Y. (5 Sick.) 416. 
 
 264. Where such witness testified, on his ex- 
 amination that the statement was made while 
 he was under arrest, and that he supposed he 
 would be discharged when he sjiould sign it, the 
 officer under whose direction the statement was 
 made may for the purpose of dispelling any pre- 
 sumption of duress or fear, be permitted to deny 
 that he held out any inducement or used any 
 compulsion to induce the witness to make and 
 sign it. lb. 
 
 266. For the purpose of impeaching a witness 
 who has denied on cross-examination that she 
 had a certain conversation with another, on the 
 morning after the crime was committed, such 
 other person may be called to contradict her, 
 and as an introductory question may be asked 
 whether she saw such witness on the morning in 
 question. Sup. Ct., 1876, Shufflin v. People, 4 
 Hun, 16. 
 
 266. Where the clerk of the grand jury is 
 called by the prisoner's counsel to discredit a 
 witness for the prosecution, by showing state- 
 ments made before the grand jury tending to 
 prove ill-will and prejudice, questions asked 
 by the prosecution calling for the entire state- 
 ment of such witness are incompetent. Ct. 
 App., 1871, Starin v. People, 45 N. Y. (6 Hand,) 
 333. 
 
 267. The record of a former conviction for 
 petit larceny of the prisoner is admissible in 
 evidence for the purpose of impeaching his cred- 
 ibility, where he is sworn on his own behalf 
 and denies his guilt. Sup. Ct., 1875, People v. 
 Satterlee, 5 Hun, 167. 
 
 268. Insanity. Proof that the accused was 
 insane when the crime was committed, is not 
 enough to require the jury to acquit ; but it 
 must be shown that the insanity was such as to 
 destroy, for the time at least, the consciousness 
 of the distinction between right and wrong, in 
 respect to the act charged. Sup. Ct., 1872, 
 People V. Montgomery, 13 Abb. N. S. 207. 
 
 269. Where such a degree of insanity is shown 
 to have existed previous to the act, in order to 
 convict, the people must prove, that at the time 
 the act was committed such insanity had at least, 
 temporarily, passed away, leaving the prisoner 
 in that condition of mind in which he was 
 morally and legally responsible for the crime. 
 It is not necessary for them to show that the 
 mind had thrown off the disease, and was re- 
 stored to a healthy isondition lb. 
 
 270. Evidence that the prisoner's mother had 
 been accustomed to speak of him, from child- 
 hood, as diseased in mind, and that in the family 
 he was called crazy, is mere hearsay, and inad- 
 missible. Such declarations are competent only 
 when made in the presence of the person to 
 whom they relate, and then only to show how 
 they received them. lb. 
 
 271. Intent. A person charged with a 
 crime of which the intent is an essential element, 
 has a right when examined as a witness in his 
 own behalf to testify as to his intent in an act 
 which is relied on as showing a criminal intent. 
 Ct. App., 1875, Kerrains v. People, 60 N. Y. (15 
 Sick.) 221. 
 
 272. Thus, he may testify as to the intent 
 with which he went for and procured the ax 
 subsequently used by him in committing the 
 crime. lb. 
 
 273. A person who is charged as aider and 
 abettor in tlie murder of one who was engaged 
 with others in attempting to enter the house of 
 U (the petson who committed the homicide), in 
 the night time, and who seeks to justify on the 
 ground that he was lawfully aiding in protecting 
 tlie premises, is entitled to the benefit of his own 
 testimony to the effect that he had heard that 
 persons had a short time previously taken TJ 
 from the house in the night time and done him 
 violehce> and that he had heard that persons 
 were coming there that night for a similar pur- 
 pose, in order to show his intent and by what he 
 was influenced. Sup. Ct., 1871, Temple v. People, 
 4 Lans. 119. 
 
 274. Evidence of acts done by the prisoner 
 alone is competent to show want of premedita- 
 tion, but not acts done by him in connection 
 with others. Sup. Ct. at Chambers, 1872, Peo- 
 ple V. Rogers, 13 Abb. N. S. 370. 
 
 275. The intent to kill may be inferred by the 
 jury from the facts of the case, as from the use 
 of a deadly weapon, directed at a vital part of 
 the body, or the actual effects produced by the 
 act of the prisoner. It is not necessary to show 
 that any process of reasoning on the subject 
 passed through his mind. lb. 
 
 276. Upon trial of an indictment for larceny 
 in obtaining the possession of the goods by an 
 artifice, with the felonious intent to deprive the 
 owner thereof, and keeping them, evidence of 
 other similar frauds committed by the prisoner, 
 so connected as to time, and so similar in their 
 other relations, that the same motive may rea- 
 sonably be imputed to them all, is admissible 
 iipon the question of guilty intent. Sup. Ct., 
 1876, Weyman v. People, 4 Hun, 511. 
 
 277. Larceny. Upon the trial of an indict- 
 ment for stealing a quantity of pig iron, the 
 testimony of the agent to whom such Iron was 
 
CRIMINAL LAW. 
 
 225 
 
 sent for sale, that some of the iron had been 
 taken from his possession in the night time, the 
 defendiint having been arrested the next morn- 
 ing, and that the iron found in possession of the 
 defendant bore tlie marks and presented the 
 appearance of the iron taken from his possession, 
 and that he identified it wlien he saw it the next 
 afternoon, togetlier with other evidence, tliat 
 such iron was found in defendant's possession in 
 a boat on the river, at lialf-past three o'clock in 
 tlie morning, and that lie subsequently stated 
 that he had purchased it of a canal-boat captain 
 for S15, the real value being $52, is sufficient to 
 justify the submission of the question of tlie 
 identity of the property to the jury. Sup. Ct., 
 1874, Dillon V. People, 1 Hun, 670 ; AflE'd by Ct. 
 App. 
 
 278. Possession of stolen property immediately 
 after the larceny, and under circumstances so 
 suspicious that it is consistent with no other 
 rational conclusion than that of the guilt of the 
 person having it, is prima facie evidence of the 
 commission of tlie larceny by him. lb. 
 
 279. The rule that, when a person in whose 
 possession stolen property is found gives a 
 reasonable account of how he came by it, the 
 prosecution must show that account to be false, 
 applies only where some considerable time has 
 elapsed between the taking of the property and 
 the discovery of it in his possession, and he gives 
 such reasonable account to those finding him in 
 possession. lb. 
 
 280. The exclusive possession of the fruits of 
 crime, recently after the offense, is sufficient, if 
 unexplained, to warrant a conviction for the 
 crime, whether it be larceny, burglary or rob- 
 bery. Ct. App., 1870, Knickerbocker v. People, 
 43 N. Y. (4 Hand,) 177; Aff'g S. C, 67 Barb. 
 365. 
 
 281. In order to convict of larceny of bank 
 bills, there must be proof of their genuineness, 
 and if made by a corporation of another State, 
 of the legal existence-of such corporation ; but, 
 it seems, proof that such bills have been received 
 and passed away as part of the currency of the 
 country is prima fade sufficient to prove the ex- 
 istence of the bank, as well as the genuineness of 
 the bills. Sup. Ct., 1872, Uiggins v. People, 7 
 Lans. 110. 
 
 282. Opinion. A physician called as an ex- 
 pert, on the trial of an indictment for murder, 
 who has described the wound inflicted on the 
 deceased, may properly be asked whether it 
 could have been produced by one blow of the 
 club with which the deceased was proved to 
 have been struck by the prisoner ; but it is not 
 proper to ask his opinion as to whether it was 
 not as likely the blow was struck with a stone 
 as with the club, where there is no evidence that 
 he was struck with any stone. Sup. Ct. at 
 Chambers, 1872, People v. Rogers, 18 Abb. N. S. 
 370. 
 
 283. On a trial for murder, the opinion of a 
 surgeon as to which of two wounds, either by 
 itself necessarily fatal, caused the death of the 
 deceased, is competent evidence. Ct. App., 
 1874, Eggler v. People, 56 N. Y. (11 Sick.) 642. 
 
 284. Evidence of particular instances of ex- 
 hibitions by the deceased of violent and un- 
 governable temper, is not competent in behalf of 
 one charged with liis murder. lb. 
 
 285. Where a witness has testified, in a murder 
 case, to having heard cries at the house where 
 the murder was committed, he cannot be further 
 asked what the cries indicated, — whether that 
 the person was crying for joy or something 
 else. Such a question calls for the conjecture 
 
 15 
 
 of the witness as to the cause of the cries, and 
 not for a description of them. Tlie latter would 
 be competent, the former is not. Peckham, J., 
 dissents. Ct. App., 1871, Messner v. People, 46 
 N. Y. (6 Hand,) 1. 
 
 286. Rape. Upon trial of an indictment for 
 rape, evidence is admissible, on the part of tlie 
 defendant, to show that the prosecutrix was in 
 the habit of receiving men at her residence for 
 the purpose of promiscuous intercourse. Ct. 
 App., 1874, Woods v. People, 56 N. Y. (10 Sick.) 
 515. 
 
 287. Such evidence is not objectionable as an 
 attempt to prove particular acts of lewdness. 
 Whether proof of the latter character would be 
 competent or not, query ? lb. 
 
 288. Rebutting. Where, on the trial of a 
 criminal indictment, evidence was given on the 
 part of the prosecution tending to show an 
 attempt by the prisoner, by written communi- 
 cation which was intercepted, to suborn witnesses 
 to testify for him, and also that there was 
 opportunity for further communication, — Held, 
 that he should have been permitted to relieve 
 himself from the imputation of subornation thus 
 raised, by showing that he had had no commu- 
 nication with such witnesses. Ct. App., 1874, 
 Donohue v. People, 56 N. Y. (11 Sick.) 208. 
 
 289. Res Gestae. Declarations which are 
 a mere narrative of past occurrences are not 
 competent as part of the res gestae. Ct. App., 
 1874, People v. Davis, 56 N. Y. (11 Sick.) 95. 
 
 290. Seduction. On trial of an indictment 
 for seduction, proof of subse'quent illicit inter- 
 course by the prosecutrix with another is not 
 competent. Ct. App., 1873, Boyce v. People, 55 
 N. Y. (10 Sick.) 644. 
 
 291. The proof required by statute, in addi- 
 tion to the testimony of the prosecutrix, to 
 support a conviction for seduction, need not be 
 necessarily directly corroborative of any of the 
 material facts ; but it is sufficient that she is 
 supported by evidence such as is ordinarily re- 
 quired in corroboration of that of an accomplice 
 against his confederates, or by proof of circum- 
 stances usually relied upon as tending to prove 
 the material facts, and which from the nature of 
 the case are susceptible of being proved, to 
 satisfy the jury that she is worthy of credit, 
 lb. 
 
 292. Threats. Where, on a trial for murder, 
 testimony has been given making it a question 
 for the jury whether the case was not one of 
 excusable homicide, upon the ground that the 
 act was perpetrated by the accused in defending 
 himself against an attempt of the deceased to 
 murder or inflict some great bodily injury upon 
 him, it is competent, for the purpose of showing 
 the probability that such an attempt was in fact 
 made, to prove previous threats of the deceased, 
 though not communicated to the prisoner. Ct. 
 App., 1873, Stokes v. People, 63 N. Y. (8 Sick.) 
 164. 
 
 293. Sufficiency. The legal test of the 
 sufficiency of every species of evidence to 
 authorize a conviction is its adequacy to satisfy 
 the understanding and conscience of a jury, and 
 to exclude from their minds all reasonable doubt 
 of the guilt of the accused. It is not necessary 
 to prove the case to the exclusion of the possi- 
 bility that the crime was committed by any one 
 else. Sup. Ct., 1875, Murphy v. People, 4 Hun, 
 102. 
 
 294. Variance. An indorsement or an inter- 
 nal revenue-stamp upon a check, not forming 
 any part of the instrument, does not constitute a 
 variance, though not set forth in an indictment 
 
226 
 
 CRIMINAL LAW. 
 
 for forging it. Ct. App., 1873, Miller v. People, 
 52 N. Y. (7 Sick.) 304. 
 
 295. Witnesses ; accomplice. The tes- 
 timony of an accomplice may, in the discretion of 
 the court, be received against a person upon 
 trial for murder. Sup. Ct., 1875, Lindsay v. 
 People, 5 Hun, 104 ; Aff'd by Ct. App. 
 
 296. To corroborate the testimony of sucli ac- 
 complice, the prosecution may give proof not 
 only of the facts and circumstances attending 
 the commission of the crime, but of those relat- 
 ing to the person of the prisoner, and connecting 
 him with the accomplice and the crime. lb. 
 
 297. Co-defendant. Where two persons are 
 jointly indicted, and one of them is separately 
 tried, the other is a proper witness on such trial. 
 Sup. Ct., 1875, People v. Satterlee, 5 Hun, 167. 
 
 298. Convict. The law authorizing the tes- 
 timony of convicts against each other, as to of- 
 fenses actually committed in prison, makes them 
 competent witnesses as to any facts material to 
 the issue, and does not restrict such testimony to 
 a statement of the particular acts constituting 
 the crime. Ct. App., 1874, Donahue v. People, 56 
 N. Y. (11 Sick.) 208. 
 
 299. Prisoner. The act allowing persona 
 charged with crime to be witnesses in their own 
 behalf (oh. 678, Laws 1869), applies only to the 
 parties so charged. A prisoner's wife is not a com- 
 petent witness for him, on the trial of an indict- 
 ment, the act of 1867 (ch. 867), enabling husband 
 and wife to be witnesses for each other, being 
 expressly limited to civil cases. Sup. Ct., 1871, 
 People V. Reagle, 60 Barb. 527. S. P. Foster's 
 Case, 13 Abb. N. S. 372, n. 
 
 300. A person on trial for a criminal offense 
 is a competent witness in his own behalf, under 
 ch. 678, Laws of 1869, although he has served 
 out a term in the state prison, and would there- 
 fore, under ordinary circumstances, be disquali- 
 fied. The degree of credit to be given him is a 
 question for the jury, and not for the court. 
 Sup. Ct., 1872, Newman v. People, 6 Lans. 460 ; 
 S. C, 63 Barb. 630. 
 
 301. A prisoner, who is sworn as a witness at 
 his own request, under the statute of 1869, waives 
 the constitutional provision against compell- 
 ing him to become a witness against himself, 
 and subjects himself to the same rules of cross- 
 examination and is called upon to submit to the 
 same tests which can by law be applied to 
 other witnesses. Ct. App., 1872, Connors v. Peo- 
 ple, 50 N. Y. (5 Sick.) 240. 
 
 302. When a prisoner avails himself of the 
 privilege of testifying in his own behalf, the 
 same rules of evidence apply to him as to other 
 witnesses ; and the adverse party cannot, on his 
 cross-examination, draw out collateral state- 
 ments, not material to the issue, and then con- 
 tradict them, but he is concluded by the answer. 
 Sup. Ct., 1872, ifarx v. People, 63 Barb. 618. 
 
 303. Where the prisoner has denied, on cross- 
 examination, that he had previously been con- 
 victed of burglary, the prosecution cannot be 
 permitted to introduce the record of conviction 
 in evidence against him, even in connection with 
 proof of his identity with the person convicted ; 
 but if such evidence has been admitted, the jury 
 should be instructed wholly to disregard it, 
 otherwise the judgment will be reversed on ap- 
 peal, lb. 
 
 304. Competent evidence cannot properly be 
 rejected merely because it is inconclusive, or of 
 little weight. lb. 
 
 305. Compulsory examination. The for- 
 cible examination of the person of a female pris- 
 oner by physicians, under an order of the coroner. 
 
 for the purpose of obtaining evidence to deter- 
 mine whether she had been pregnant and had 
 been recently delivered of a child, is in violation 
 of the provision of the Constitution that " no 
 person shall be compelled in any criminal case 
 to be a witness against himself," and the testi- 
 mony of the physicians who made such examin- 
 ation cannot be received against her upon her 
 trial on an indictment for murdering a bastard 
 child. Sup. Ct. ; Oy. and Ter., 1873, People v. 
 McCoy, 45 How. 216. 
 
 306. Variance. On a trial" for arson, the 
 name of the owner of the property burned must 
 be proved as laid, and a variance will be fatal 
 Ct. App., 1871, McGary v. People, 45 N. Y. (6 
 Hand,) 153 ; Rev'g S. C, 2 Lans. 227. 
 
 307. Where an indictment alleged the owner- 
 ship in a corporation named the " Phoenix Mills 
 Company," and the proof was of a corporation 
 called " The Phoenix Mills of Seneca Falls," — 
 Held fatally defective, and furthet, that evi- 
 dence was inadmissible to show that the corpora- 
 tion was generally known by the former name. 
 Per Chuech, Ch. J., and Allen and Bapello, 
 J.J. lb. 
 
 808. Where an indictment for perjury sets out 
 the affidavit alleged to be false as " in substance 
 and to the effect following," a literal copy is not 
 required, and a variance between the indictment 
 and affidavit in respect to the number of certain 
 articles mentioned therein is not fatal. Sup. Ct., 
 1875, Harris v. People, 4 Hun, 1. 
 
 309. Where an indictment for robbery charg- 
 ed the taking of money and bank bills, viz ; A 
 certain sum in " bills known as U. S. legal tender 
 notes," and a certain sum in currency known as 
 " postal currency," proof that the moneys taken 
 were national bank notes and fractional curren- 
 cy, issued under the act of congress of March 
 1863, constitutes a substantial variance between 
 the indictment and the proof, for which the case 
 should be dismissed. Sup. Ct., 1870, People r. 
 Jones, 6 Lans. 340. 
 
 310. An indictment charging the prisoner with 
 selling " strong and spirituous liquors and wines, 
 in quantities less than five gallons at a time, 
 witfiout having a license therefor, will not sus- 
 tain a conviction of one who had a store-keep- 
 er's license, but sold liquor to be drank on his 
 premises. Sup. Ct., 1876, Huffstater v. People, 5 
 Hun, 23. 
 
 VII. Verdict ; ahkest op judgment ; sbn- 
 
 TEKOB ; COMMITMENT. 
 
 311. Conviction of a lesser crime. On an 
 
 indictment for murder in the first degree, the 
 prisoner may be convicted of manslaughter in 
 the second degree, for unnecessarily killing, 
 while resisting an attempt, or after failure of an 
 attempt, by the deceased, to commit a felony. 
 Oy. and Ter.; Sup. Ct. andCt. App., 1871, Ruloff 
 V. People, 11 Abb. N. S. 245 ; S. C, 45 N. Y. (6 
 Hand,) 213. 
 
 312. Under an indictment for murder, the 
 prisoner may be convicted of any degree of 
 homicide inferior to that charged ; and it is 
 error for the judge to restrict the jury, in the 
 event of conviction, to the degree charged, or 
 some other specified degree of the offense, un- 
 less there is an entire absence of evidence to 
 prove the commission of any other degree than 
 those so named. Sup. Ct., 1872, McNevins v. Peo- 
 ple, 61 Barb. 307. 
 
 318. Arrest of judgment. A motion in ar- 
 rest of judgment is founded on errors appearing 
 upon the face of the record, such as would sup- 
 
CRIMINAL LAW. 
 
 227 
 
 port a writ of error ; and defects in evidence or 
 improper conduct on the trial cannot be reviewed 
 in tliis manner. Ct. App., 1870, People v. Allen, 
 43 N. Y. (4 Hand,) 28. 
 
 814. The decision of the court on motion in 
 arrest, though erroneous, is not of itself ground 
 of error, or the subject of exception. lb. 
 
 316. Sentence — commencing at future 
 day. Where a prsioner has been convicted of 
 several offenses under different indictments, for 
 which he is to be punished by imprisonment, 
 the term of imprisonment upon each, after the 
 first, may be directed to commence at the termi- 
 nation of the preceding term. Oy. and Ter., 1874, 
 People V. Phelps, 49 How. 479. 
 
 316. Cumulative. Upon any indictment for 
 misdemeanor, no matter how many counts it con- 
 tains, or what may be the form of the verdict, the 
 power of the court to sentence is restricted, as 
 in cases of felony, to the highest offense charged 
 in tlie indictment, and separate cumulative pun- 
 ishments can only be adjudged upon separate 
 indictments and trials for each offense. Ct. 
 App., 1875, People ex rel. Tweed v. Liscomb, 60 
 N. Y. (16 Sick.) 559 ; Eev'g S. C, S Hun, 760. 
 
 317. Second sentence. One who is under 
 sentence to state prison for a term of years, is 
 not civilly dead, in such a sense as to relieve 
 him from proceedings against him for a subse- 
 quent offense, but if he escapes from prison, and 
 while at large commits another offense, he may 
 be put on trial therefor, and on conviction sen- 
 tenced to a second term, to commence at the ex- 
 piration of the first. Sup. Ct., 1872, Haggerty v. 
 People, 6 Lans. 347. 
 
 318. Commitment. The penitentiary of 
 New York was, by ch.'176. Laws of 1814, made 
 one of the common jails of the city by that name, 
 and was made the proper place for the imprison- 
 ment of any person convicted of any crime or 
 misdemeanor and sentenced thereto by any 
 Court of Oyer and Terminer in said city ; and 
 the transcript of the conviction, provided for by 
 the Revised Statutes in cases of sentence to im- 
 prisonment in the county jail, is the proper pro- 
 cess for commitment thereto. Sup. Ct., 1875, 
 People ex rel. Tweed v. Liscomb, 3 Hun, 760 ; 
 Rev'd by Ct. App. 
 
 319. Where the sentence and commitment 
 direct that the criminal be confined in the pen- 
 itentiary, but the judgment record that he b'e 
 confined in the county jail, the meaning of those 
 terms must be determined by the circumstances 
 under which they are used, and the jail referred 
 to must be deemed to be the one in which the 
 prisoner can properly be imprisoned. lb. 
 
 320. Return to prison. If a prisoner, con- 
 fined in prison on sentence, escapes during the 
 term of his imprisonment, he may (under sec. 
 20, 2 R. S. 685 ; 2 Edm. Stats. 707) be retaken 
 at any time, and confined under the authority of 
 the original judgment, until his term of impris- 
 onment has been accomplished, Ct. App., 1873, 
 Haggerty v. People, 53 N. Y. (8 Sick.) 476 ; Mod- 
 ifying, S. C, 6 Lans. 332. 
 
 321. In such a case, no new award of execu- 
 tion is necessary, and a proceeding to try the 
 question of his identity and escape is unau- 
 thorized by law and improper. If the wrong 
 person should be taken, or his term has in fact 
 expired, he can obtain relief by habeas corpus. lb. 
 
 Vin. Exceptions ; appeal ; new teial ; cee- 
 
 TIOBABI ; WRIT OP EREOE. 
 
 322. Exception to evidence. When the 
 objection is to the mode of proving a fact, and 
 
 not to the proof of the fact itself, it must be dis- 
 tinctly placed on that ground, otherwise it will 
 not avail on writ of error. Sup. Ct., 1876, Mur- 
 phy V. People, 4 Hun, 102. 
 
 323. The same strictness in the form of an 
 exception will not be enforced in criminal as in 
 civil cases, but the court will look at the sub- 
 stance with a view to promote justice. Accord- 
 ingly, a motion, in form, to discharge a prisoner 
 made upon the trial, will be regarded by the ap- 
 pellate court as a request to the court to direct 
 an acquittal. Ct. App., 1872, People v. Bennett, 
 49 N. Y. (4 Sick.) 137. 
 
 324. Although an exception taken before a 
 jury is impanneled is not strictly upon the trial, 
 yet, when taken to the ruling upon a question 
 material and fundamental in its nature, and one 
 proper to be raised upon the trial, which is 
 raised, argued and decided without objection 
 before trial, and acted upon by the parties, it 
 will be deemed incorporated into the proceed- 
 ings on trial, and the prisoner will have the 
 benefit of it. Ct. App., 1871, Starin v. People, 45 
 N. Y. (6 Hand,) 333. 
 
 325. Settling bUl. Although a bill of excep- 
 tions in a criminal case ought regularly to be 
 settled by the judges who presided at the trial, 
 yet, by consent of the parties, it may be settled 
 at a subsequent term before other judges then 
 composing the court. Ct. App,, 1874, Wood v. 
 People, 59N. Y, (14 Sick, 1 117; Rev'g S, C, 1 
 Hun, 381. 
 
 326. Wliere the bill of exceptions returned on 
 writ of error was first submitted to the judge 
 who presided at the trial, and he examined the 
 proposed bill and amendments, and certified 
 how they should be settled, and tliey were so 
 settled by the judges at the subsequent term, — 
 Held, no objection appearing to have been 
 made to such settlement, that it must be deemed 
 settled by consent ; and at all events the objec- 
 tion to the settlement cannot be made for tiie 
 first time on the argument of the case on ap- 
 peal, lb. 
 
 As to settlement of exceptions, see ch. 56, Laws 
 of 1872. 
 
 ■327, On return of a writ of error to the court 
 of Oyer and Terminer, the cause is to be heard 
 upon the bill of exceptions settled, signed, 
 sealed and returned thereon, if such there be ; 
 and the Supreme Court has no power for want 
 of such bill, to order it heard upon the reporter's 
 minutes of the trial, Peckham, J,, dissents. 
 Ct. App., 1871, Messner v. People, 45 N. Y, (6 
 Hand,) 1. 
 
 328. Although judgment against the prisoner 
 upon a hearing so ordered without his consent 
 would be reverseU on his application by writ of 
 error, yet the appellate court will, at his request 
 in a capital case, examine the minutes and de- 
 termine the case upon its merits. lb. 
 
 329. An escaped prisoner cannot take any ac 
 tion before the court to compel the signing of a 
 bill of exceptions, after his trial and conviction 
 for a felony, and while remaining at large. It 
 is essential to any step in his behalf that he be 
 in custody, either actual by confinement in jail, 
 or constructive by being let to bail. Ct, App., 
 1874, People v. Oenet, 59 N. Y. (14 Sick,) 80; 
 Aff'g S. C, 1 Hun, 292, 
 
 330. New trial. The courts of Oyer and 
 Terminer have no power to grant new trials, 
 and will not entertain motions therefor founded 
 upon questions of law raised on the trial, upon 
 weight of evidence, or upon irregularities in the 
 conduct of the jury. Ct. Oy. and Ter., 1871, 
 People V. Montgomery, 13 Abb. N. S. 207. 
 
228 
 
 CRIMINAL LAW. 
 
 331. — grounds for. If, after the commence- 
 ment of the trial and tlie introduction of part of 
 the evidence, before a court of Oyer and Ter- 
 miner regularly organized and composed of the 
 presiding judge, the county judge and two jus- 
 tices of the peace, one of such justices absents 
 himself for a day, and then returns and partic- 
 ipates in the trial, without reading or hearing 
 read the evidence taken in his absence, that is 
 good cause for granting a new trial, especially 
 in a capital case. Sup. Ct., 187 4, Shaw v. People, 
 3 Hun, 272. 
 
 332. The omission to ask a prisoner, after 
 verdict and before judgment pronounced, if he 
 has anything to say why judgment should not 
 be pronounced against him, is error ; and where 
 tlie record fails to show that this form was ob- 
 served, the judgment will be reversed and a 
 new trial ordered. Peckham, J., dissents. Ct. 
 App., 1871, Messner v. People, 45 N.Y. (6 Hand,)!l. 
 
 333. This objection is not obviated by ch. 
 226, Laws of 1863 (6 Edm. Stats. 95), providing 
 that the appellate court may, where the convic- 
 tion has been legal and regular, remit the record 
 to the court below to pass such sentence as it 
 shall direct. That statute applies only to cases 
 where sentence has been passed different from 
 that required by law. Peckham, J., dissents. 
 lb. 
 
 334. Where an erroneous ruling, that a pris- 
 oner indicted as accessory to several principals, 
 only one of whom had been convicted, should 
 be tried as accessory to' all instead of to the 
 convicted principal alone, appears to have per- 
 vaded the whole trial, leading to the admission 
 of evidence otherwise incompetent and to a ver- 
 dict according to the indictment, a new trial 
 will be granted. Ct. App., 1871, Starin v. People, 
 45 jr. Y. (6 Hand,) 333. 
 
 335. A new trial will be granted for the im- 
 proper admission of evidence, unless it can be 
 clearly seen that the prisoner was not preju- 
 diced thereby. lb. 
 
 336. The fact that the jury, in a capital 
 case, casually passed the place where the homi- 
 cide under trial was committed, when taking a 
 walk in charge of an officer, is not a miscon- 
 duct for which a new trial will be granted; nor 
 would their stopping adjacent to the premises, 
 and casually viewing them and taking notice of 
 their general location, constitute such miscon- 
 duct. Ct. Oy. and Ter., 1871, People v. Montgom- 
 ery, 13 Abb. N. S. 207. 
 
 337. Neither is the mere temporary separa- 
 tion of one juror from the remainder, and his 
 casual conversation with a third person upon an 
 indifferent matter, while still in sight and within 
 the control of one of the officers in charge, a 
 misconduct for which a new trial should be 
 granted. lb. 
 
 338. Irregularities on the part of the jury are 
 not sufficient ground for setting aside a convic- 
 tion, when it is apparent that no injury to the 
 prisoner has resulted therefrom. Buff. Supr. 
 Ct., 1872, People v. Gaffney, 14 Abb. N. S. 36. 
 
 339. After conviction in a capital case, a new 
 trial will not be granted merely because the 
 jury, during their deliberations, became pos- 
 sessed of and read a newspaper, which con- 
 tained a report of the trial, but no comments 
 thereon which could prejudice the prisoner ; nor 
 because they had before them the statutes re- 
 lating to the offense under trial. lb. 
 
 340. A motion for a new trial on the ground 
 of the discovery of material evidence, favora- 
 ble to the prisoner since the trial, cannot be 
 heard, in the first instance, by the General 
 
 Term on writ of error. If anywhere, it must 
 be made at the Oyer and Terminer. Sup. Ct., 
 1873, Fralich v. People, 65 Barb. 48. 
 
 341. In a case of homicide, where insanity, 
 ascribed to epileptic fits from which it was 
 proved the accused had suffered, was set up as 
 a defense, and there was some evidence tend- 
 ing to show that the accused was simulating a 
 want of intelligence at the trial, the occurrence 
 of an epileptic fit after the trial is only cumula- 
 tive evidence, and not ground for a new trial 
 Ct. Oy. and Ter., 1871, People v. Montgomery, 13 
 Abb. N. S. 207. 
 
 342. The fact that a medical witness of high 
 character attended as a witness, at the request 
 of the district attorney, in a case of homicide, 
 where the defense of insanity was set up, under 
 an agreement that he ' should receive as com- 
 pensation for his services and expenses the sum 
 of $500, and that such agreement was not 
 known to the defense until his testimony was 
 closed, is not an irregularity for which a new 
 trial should be granted. lb. 
 
 843. In the absence of evidence of bad faith, 
 the question what amount is paid the witness 
 cannot affect the regularity of the trial, al- 
 though it may affect the credit of the witness 
 wit,h the jury; and to that end, it is sufficient 
 that the facts as to his employment and com- 
 pensation were fully and publicly stated jn 
 presence of the jury before the case was given 
 to them. lb. 
 
 344. Upon setting aside a verdict of convic- 
 tion for the crime of embezzlement, for the rea- 
 son that no conviction thereof could legally be 
 had upon the facts proved, there being consid- 
 erable doubt whether the court could set it 
 aside without ordering a new trial, the order 
 was made in that form, but leave was given to 
 the prosecuting officer, in his discretion, to en- 
 ter a nolle prosequi, and in the meantime the 
 prisoner was discharged without bail. Ct. of 
 Sess., 1871, People v. Burr, 41 How. 293. 
 
 345. Appeal, review on. Upon appeal 
 from a conviction for larceny from the person 
 of bank bills, if the bill of exceptions does not 
 show that it contains all the evidence given, it 
 will be assumed that evidence of the genuine- 
 ness of the bills was given on the trial. Sup. 
 Ct., 1872, Siggins v. People, 7 Lans. 110. 
 
 346. Upon a trial for larceny from the per- 
 son, where the value of the property stolen is 
 not shown to be less than $25, a refusal to in- 
 struct the jury that the offense is petit larceny 
 unless the value is proved to be more than $25, 
 cannot injure the defendant, and is not ground 
 for reversing the conviction. lb. 
 
 347. Judgments in criminal cases, except in 
 those which are capital or in which the mini- 
 mum punishment is state prison for lite, will not 
 be reversed except for such defects appearing 
 on the face of the record as render the convic- 
 tion illegal or void, or for erroneous rulings on 
 the law, to which exceptions were taken on the 
 trial, and are contained in a bill of exceptions. 
 The appellate court cannot correct an erroneous 
 opinion of the court below or decision of the 
 jury upon matters of fact only. Sup. Ct., 1872, 
 Higgins v. People, 7 Lans. 110. 
 
 348. Certiorari, review on. The offioe of 
 a writ of certiorari issued after trial, and before 
 judgment, under the provisions of the Revised 
 Statutes, is only to bring up the indictment, the 
 proceedings on the trial, and the bill of excep- 
 tions, if any, and it presents for review only the 
 questions arising thereon. Sup. Ct., 1871, Peo- 
 ple V. Beagle, 60 Barb. 527. 
 
CRIMINAL LAW. 
 
 229 
 
 849. Exceptions can be taken only on the 
 trial, and to the rulings of the court as to the 
 admission or rejection of evidence, or upon other 
 questions presented on the trial before a jury in 
 criminal cases, and not in any case to the judg- 
 ment or order of the court upon demurrer, the 
 remedy in that case being by a writ of error, 
 lb. 
 
 850. A writ of certiorari to the special sessions 
 to review a conviction in a criminal case, brings 
 up only the record and the proceedings to and 
 including the judgment. The question of the 
 legality of a commitment, after notice of appeal 
 has been given, cannot be raised thereon. Sup. 
 Ct., 1874, GiU V. People, 3 Hun, 187 ; AfE'd, 60 
 N. Y. (16 Sick.) 648. 
 
 351. On certioraH to review a conviction in a 
 capital case, the Supreme Court cannot set aside 
 the verdict on the ground that it is against the 
 weight of evidence, unless the preponderance of 
 evidence is so great against it as to justify the 
 inference that the verdict was tlie result of pas- 
 sion or prejudice. Sup. Ct., 1872, People v. 
 Montgomery, 13 Abb. N. S. 207. 
 
 352. Upon certiorari to bring up the proceed- 
 ings before a magistrate against a person arrest- 
 ed as a disorderly person, under oh. 357, Laws of 
 1873, the court is not required to retry the case, 
 but merely to reconsider and review the evi- 
 dence certified up and determine whether there 
 should be a discharge, modification, or confir- 
 mation of the commitment. Sup. Ct., 1873, 
 People V. McCarthy, and Same v. Warner, 46 
 How. 97. 
 
 353. Writ of error. A writ of error to re- 
 view a judgment on an indictment for a capital 
 offence is not a matter of right. It can only be 
 allowed by a justice of the Supreme Court, upon 
 notice to the attorney-general or to the district 
 attorney of the county where the conviction was 
 had ; and if, then, on examination of the case, 
 there does not appear probable error, sufficient 
 to induce an appellate court to reverse the judg- 
 ment, the writ should be refused. Sup. Ct. at 
 Chambers, 1872, People v. Rogers, IS Abb. N. S. 
 370. 
 
 364. It seems, the application for the writ and 
 a stay of proceedings may, in the discretion 
 of the judge, be entertained before the bill of 
 exceptions has been settled. lb. 
 
 355. A denial of the application by one judge 
 is not regarded as res adjudicata, but subsequent 
 applications may be made to other judges, any 
 one of whom may allow the writ. lb. 
 
 356. A writ of error will lie to review a judg- 
 ment of the Supreme Court reversing a convic- 
 tion in the Oyer and Terminer, in. a criminal 
 case, and granting a new trial. Ct. App., 1872, 
 People V. Bennett, 49 N. Y. (4 Sick.) 137. 
 
 357. Return to ■writ. Although the statute 
 prescribing what should be returned on writ of 
 error (2 E. S. 740- sec. 22; 2 Edm. Stats. 765, 
 sec. 20) does not require a formal common-law 
 record of judgment to be filed or returned in 
 the first instance, yet it has not abolished such 
 record, as appears by 2 R. S. 738-9, sees. 4-10 
 (2 Edm. Stats. 763). Sup. Ct., 1871, Graham v. 
 People, 6 Lans. 149. 
 
 358. Where the return does not show that the 
 prisoner was asked, after verdict of guilty, and 
 before sentence, whether he had anything to say 
 why sentence should not be pronounced upon him, 
 the defendant in error may allege diminution, 
 and obtain a certiorari to bring up such proceed- 
 ings as remain in the court below or among its 
 record*. lb. 
 
 359. The return required by statute (2 Edm. 
 
 Stats. 765), to be made to a writ of error in a 
 criminal case, consisting of a transcript of the 
 indictment, bill of exceptions and judgment, 
 certified by the clerk, is not sufficient to enable 
 the prisoner to raise the objections that he was 
 not present on the trial, and that he was not 
 asked before sentence what he had to say why 
 judgment should not be pronounced against 
 him, as grounds for the reversal of the judg- 
 ment, but to avail himself thereof, he should 
 cause the judgment record to be made up, settled 
 by the court and returned. Sup. Ct., 1878, Dent 
 V. People, 46 How. 264. 
 
 860. The return to a writ of error must show, 
 by a distinct statement in the record sent up as 
 a part of it, that after conviction tlie prisoner 
 was asked what he had to say why judgment 
 should not be pronounced against him. The 
 omission of such a statement is fatal to the 
 judgment. Sup. Ct., 1872, Graham v. People, 
 63 Barb. 468. 
 
 361. The Court of Oyer and Terminer has 
 power to amend its record, aftej a return has 
 been made to a writ of error ; and the trans- 
 cript thereof can afterward be amended in the 
 Supreme Court. The motion to amend should 
 not be made to the latter court. lb. 
 
 362. If the return to a certiorari differs in an 
 essential particular from a return previously 
 made to a writ of error, and the latter is signed 
 by the presiding judge of the Oyer and Ter- 
 miner, and by the district attorney, showing on 
 its face that it has been inspected by the court, 
 while the former is not so authenticated, the re- 
 turn to the writ of error will be regarded as con- 
 taining the authentic judgment of the court 
 below, upon which the court is to proceed and 
 render judgment. lb. 
 
 363. If the return to the certiorari shows that 
 a part of the minutes embraced therein was in- 
 serted after they were originally made up, and 
 without authority, and should have been ex- 
 punged by that court, they will be treated in 
 the Supreme Court as though the interpolated 
 matter had been expunged. lb. 
 
 364. Where the record does not show that the 
 prisoner was asked, after conviction, wliat he 
 had to say why sentence should not be pro- 
 nounced against liim, and it also appears that 
 error was committed against him in the admis- 
 sion of evidence on the trial, the court, on re- 
 versing the judgment, will not discharge the 
 prisoner, but will order a new trial. lb. 
 
 365. Where the return states that the prisoner 
 appeared in his own proper person and was in due 
 form of law tried and convicted, and does not 
 show that he left the court after he so appeared, 
 it will be presumed that he remained and was 
 present during the whole trial. Sup. Ct, 1874, 
 Hilderbrand v. People, 1 Hun, 19. 
 
 366. The statute does not require the clerk's 
 return to state what succeeded the verdict and 
 preceded the sentence ; and the objection that it 
 does not appear from such return that the pris- 
 oner was asked, before sentence, whether he 
 had anything to say why the sentence should 
 not be pronounced upon him for the offense of 
 which he had been convicted, will not avail on 
 writ of error. When a proper judgment record 
 is made, signed and filed as required by statute, 
 if that does not show that the inquiry was made 
 of the defendant before he was sentenced, it 
 may for that reason be necessary to reverse the 
 judgment pronounced, but not the conviction, 
 lb. 
 
 367. 'WTiat reviewable. A writ of error 
 brings up only the record and exceptions taken 
 
230 
 
 CRIMINAL LAW. 
 
 on the trial. It is not competent for the court 
 to weigh the evidence, or pass upon the correct- 
 ness of the verdict ; and where no bill of excep- 
 tions is properly settled, such questions only as 
 arise upon the face of the record can be reviewed. 
 Sup. Ct., 1874, Wood V. People, 1 Hun, 381; 
 Eev'd by Ct. App. 
 
 368. A motion to guash the indictment, made 
 by the defendant after pleading not guilty, is 
 addressed to the discretion of the court, and its 
 denial is not a proper subject of exception. lb. 
 
 369. A writ of error only brings up for review 
 the record of the court below, and matters in the 
 nature of a record, together with the bill of 
 exceptions, if any, which has been settled in the 
 case ; and the court is not authorized to review 
 alleged errors appearing by afSdavits presented 
 and annexed to the record and bill of exceptions. 
 Ct. App., 1872, Gaffheu v. People, 50 N. Y. (5 
 Sick.) 416. 
 
 370. The jurisdiction of the Court of Appeals, 
 on error to the Superior Court of Buffalo, is not 
 enlarged in this respect, by sec. 35, ch. 361, 
 Laws of 1857, which authorizes a review of the 
 judgments of the latter court, " in the same 
 cases and in the same manner as if made by the 
 Supreme Court." lb. 
 
 371. Upon writ of error to review the convic- 
 tion of the plaintiff in error on an indictment for 
 an assault with intent to kill, he cannot object 
 to a charge made at his request, that he could 
 not be convicted under the indictment for an 
 assault with a sharp, dangerous weapon, with 
 intent to do bodily harm, although clearly 
 erroneous. Sup. Ct., 1874, Slattery v. People, 1 
 Hun, 311 ; Aff'd by Ct. App. 
 
 372. A claim that the charge of the court in a 
 criminal case, was an appeal to the passions and 
 prejudices of the jury, and not cool and dispas- 
 sionate as it should be, though well founded, will 
 not avail on writ of error. Ct. App., 1873, Boyce 
 ». People, 55 N. Y. (10 Sick.) 644 
 
 373. Where erroneous propositions laid down 
 by a judge upon a criminal trial are, upon his 
 attention being called tliereto by objections, 
 abandoned and corrected, and the true rule 
 asserted, no error is presented for review. Ct. 
 App., 1874, EggUr v. PeopU, 56 N. Y. (11 Sick.) 
 642. 
 
 374. A writ of error in a criminal case, brings 
 up for review only questions of law raised by 
 exceptions properly taken upon the trial ; and 
 the court has no power to reverse a judgment 
 on the ground tliat the verdict is against the 
 weight of evidence. Ct. App., 1874, Donahue v. 
 People, 56 N. Y. (11 Sick.) 208. 
 
 375. Under sec. 3, ch. 337, Laws of 1855, relat- 
 ing to the Court of General Sessions of the Peace 
 for New York, which allows an appellate court 
 to interfere if it shall be satisfied that tlie verdict 
 against the prisoner is against the weiglit of 
 evidence, or against the law, or that justice 
 requires a new trial, such interference is not au- 
 thorized where tlie matters objected to are dis- 
 cretionary with the trial court. The " justice " 
 meant is simply a fair and full trial upon the 
 indictment according to the prescribed forms of 
 law. Ct. App., 1873, Wilke v. People, 53 N. Y. 
 (8 Sick.) 525. 
 
 376. Under that act, the only case in which 
 the appellate court can order a new trial because 
 justice requires it, or in which the prisoner may 
 obtain a review without exception taken in the 
 trial court, is a conviction of a capital offense, or 
 an offense the minimum punishment for which is 
 imprisonment in state prison for life. lb. 
 
 877. Where all the evidence is not before the 
 
 court on writ of error, it will not pass upon the 
 question whether the evidence as to the connec- 
 tion of one of the persons jointly indicted with 
 tlie other was sufficient to implicate him. Sup. 
 Ct, 1874, People V. C/ari, 2 Hun, 520. 
 
 378. The remedy for an erroneous decision on 
 demurrer in a criminal case is by writ of error j 
 but if, after judgment on demurrer, the defend- 
 ant pleads over, the question of the validity of 
 his former plea cannot be reached even on a writ 
 of error. Sup. Ct., 1871, People v. Beagle, 60 
 Barb. 527. 
 
 379. Although the sentence of the court in a 
 criminal case is authorized by law, yet, if it 
 appears that its action was bad in the erroneous 
 belief tliatithad no right to exercise a discretion, 
 and in such exercise to take other action, an 
 appellate court will review the proceeding, and 
 send the case back to be disposed of in the dis- 
 cretion of the lower court. Ct. App., 1874, Foote 
 V. People,b& N. Y. (11 Sick.) 321. 
 
 380. Although, in general, error will not lie for 
 rejecting, under a general objection, evidence 
 which is incompetent upon any ground, yet, 
 where groundless objections are stated and the 
 true grounds suppressed, which if stated at the 
 time might be obviated, tlie rejection is error, and 
 if excepted to, will be corrected on appeal. Ct. 
 App., 1872, Height v. People, 50 N. Y. (5 Sick.) 
 392. 
 
 381. Harmless errors. The rule that no 
 error should avail a prisoner, unless it manifest- 
 ly appears that it may have done him some 
 material injury, approved. Sup. Ct., 1873, fra- 
 lich V. People, 65 Barb. 48. 
 
 382. The intendment of law is, that an error 
 in the admission of evidence is 'prejudicial to 
 the party objecting, and will be ground for re- 
 versal of the judgment unless that intendment 
 is clearly repelled by the record, and the error 
 conclusively shown to be innocuous. Ct. App., 
 1874, Coleman v. People,&&TS. Y. (13 Sick.) 555. 
 
 383. Where a prisoner on trial for an assault 
 with intent to do bodily harm with a pistol, hav- 
 ing testified to a movement by the other party 
 which led him to think such party was about to 
 draw a pistol, the recorder asked him, if he could 
 tell why the complainant, who then had the best 
 of the fight, should put his hand in his pocket, 
 or what occasion he had to draw a pistol ; — 
 Held, that the question was improper, and as it 
 might have done harm to the prisoner, it was 
 sufficient cause for reversing the judgment 
 Sup. Ct., 1875, Evers v. People, 3 Hun, 716. ' 
 
 iSA. Objections not raised below. Fail- 
 ure to prove a discharge of the prisoner from 
 imprisonment under a former conviction, upon 
 the trial of an indictment for a second offence, 
 is not available on writ of error, if the objection 
 was not taken on the trial. Ct. App., 1874, 
 Johnson V. People, 55 N. Y. (10 Sick.) 512; Afi'g 
 S.C, 65 Barb. 342. 
 
 385. Upon writ of error, the prisoner's counsel 
 cannot be heard to assail the charge of the court 
 to which he has not excepted, or has taken only 
 an exception too general to be available. Sup. 
 Ct., 1873, Fralich v. People, 65 Barb. 48. 
 
 386. The Supreme Court has no authority, on 
 writ of error, over questions arising on the trial 
 of an indictment, except that given by the 
 statute, and that requires an exception, in order 
 to present the point relied on for error. It can- 
 not, without such exception, set aside a verdict 
 because unsupported by the evidence. Sup. Ct, 
 1875, Shufflin v. People, 4 Hun, 16. 
 
 387. In reviewing the judgment of the Court 
 I of General Sessions of New York, on writ of 
 
CROSS EXAMINATION— DAMAGES. 
 
 231 
 
 error, if the Supreme Court discovers any error 
 which may have prejudiced the prisoner, it 
 should give him the benefit of it, even tliough 
 there was no request to charge, or exception 
 taken. Sup. Ct.. 1872, NcNevins v. People, 61 
 Barb. 307. 
 
 388. A preliminary trial upon a special 
 plea of the defendant, wherein a verdict was 
 rendered against him, cannot be reviewed by a 
 writ of error brought to review his subsequent 
 trial and conviction on the merits, after a plea of 
 not guilty. Sup. Ct., 1875, King v. People, 5 
 Hun, 297. 
 
 389. Quashing. Writs of error and certiorari, 
 allowed after judgment in a criminal case, will 
 not be quashed on motion of the people, on the 
 ground that after the allowance thereof the 
 prisoner escaped and fled the jurisdiction of the 
 court ; but tlie court below will not be compelled 
 to make return to either writ until the criminal 
 is again in custody, within the jurisdiction of 
 the court. Sup. Ct., 1874, People v. Sharkey, 1 
 Hun, 300. 
 
 890. Remanding for proper sentence. 
 Upon writ of error, where it appears that the 
 conviction was legal and regular but the sen- 
 tence illegal, the Court of Appeals has power, 
 under ch. 226, Laws of 1863 (6 Edm. Stats. 95), 
 to affirm the conviction and remand the case to 
 the court below that the proper sentence may be 
 there imposed, instead of granting a new trial. 
 Ct. App., 1876, Harris v. People, 59 H. Y. (14 
 Sick.) 599. 
 
 CROSS-EXAMINATION. 
 See Evidence ; Peacticb. 
 
 CRUELTY. 
 See Criminal XolW ; Mabriage, etc. 
 
 CUMULATIVE EVIDENCE, 
 See Evidence ; New Tkial. 
 
 CURTESY. 
 
 1. Tenancy by curtesy is not affected by 
 the enabling act, in reference to married women, 
 passed in 1848, or the amendments thereto of 
 1849. Sup. Ct., 1875, Zimmerman v. Schcmfeldt, 
 3 Hun, 692. 
 
 2. In 'what estate. Actual seizin, or, at 
 least, a right of possession, in the wife during cov- 
 erture, is in general necessary to support a ten- 
 ancy by the curtesy. Ct. App., 1871, Ferguson 
 y. Tweedy, 43 N. Y. (4 Hand,) 543. 
 
 3. Where a woman, owning lands in common 
 with her brother, before marriage partitioned 
 the same by mutual deeds until either should die 
 without issue, and no longer, and went into 
 possession of the portion deeded to her, the 
 brother at the same time going into the posses- 
 sion of the share deeded to him and holding it 
 exclusively during her marriage and until her 
 death ; — Held, that the husband had no right of 
 ourtesy.in the lands held by the brother. lb. 
 
 4. Where a wife took by devise an estate in 
 
 fee in lands, subject to a limitation. over in case 
 she should die without leaving any children sur- 
 viving her, and the only child of the marriage, 
 a daughter, died before her mother, — Hdd, tjiat 
 the husband was entitled to curtesy in the lands. 
 Com. App., 1873, Hatfield v. Sneden, 54 N. Y. 
 (9 Sick.) 280 ; Rev'g 42 Barb. 615. 
 
 5. The husband's estate is not derived merely 
 out of the estate of the wife, but is created by 
 law. It may, therefore, be deemed to have been 
 in the contemplation of the testator, is tacitly 
 annexed to the gift, and will continue notwith- 
 standing the determination of the particular es- 
 tate, lb. 
 
 6. The married woman's acts of 1848 and 
 1849, do not affect the husband's right of cur- 
 tesy in so much of the real estate of the wife as 
 remains undisposed of at her death. lb. 
 
 CUSTOM. 
 
 1. When binding. A custom or usage of a 
 particular trade to be binding upon contracting 
 parties, must be known to them, or have been 
 so long continued, universal and notorious that 
 all persons may be presumed to have notice 
 of it. It must also be reasonable, and not con- 
 trary to the general principles of law. Sup. Ct., 
 1872, Wadley v. Davis, 63 Barb. 500. 
 
 2. A custom that owners of a stave mill, em- 
 ployed to cut staves from bolts furnished by 
 other parties, may take and appropriate to their 
 own use, not only the clippi ngs and corner pieces 
 but also the cull bolts and staves, without the 
 consent of the owner, cannot be upheld. lb. 
 
 8. No custom can be allowed as valid, which 
 would deprive the party entitled to it of the 
 protection secured by well settled legal prin- 
 ciples ; nor can a party be held bound by a 
 custom, in ordinary cases, without proof of his 
 knowledge of its existence, or of facts from 
 which it may be fairly inferred. Sup. Ct., 1874, 
 Boardman v. Gaillard, 1 Hun, 217 ; Aff'd, 60 N. 
 Y. (15 Sick.) 614. 
 
 DAMAGES. 
 I. Liquidated damages ; Penalty 231 
 
 n. EXEMPLAKT DAMAGES 232 
 
 III. In actions for breach of contract. 232 
 
 1. In general. 
 
 2. Contract and market price as measure* 
 
 3. For personal employment. 
 
 4. On warranty. 
 
 IV. In actions against carriers, bailees 
 
 AND PLEDGEES 236 
 
 V. In actions against lessor or lessee, 
 
 VENDOR OR VENDEE 236 
 
 VI. In actions for torts 237 
 
 1. Injuries to the person. 
 
 2. Injuries to personal estate. 
 8. Injuries to real estate, 
 
 L Liquidated damages ; Penalty. 
 
 1. Idquidated. Although a covenant to pay 
 heavy liquidated damages in case of the non- 
 performance of a contract will be enforced so 
 far as clearly applicable, yet it will not be ex- 
 tended by implication. Ct. App., 1873, Leggett 
 
 V. Mut. Ins. Co. ofN. Y., 53 N. Y. (8 Sick.) 394; 
 Rev'g S. C, 64 Barb. 23. 
 
 2. Thus in a contract to execute and deliver 
 
232 
 
 DAMAGES. 
 
 a proper deed for the conveyance of certain 
 premises in fee simple, free of incumbrances, 
 containing covenants against the acts of the 
 grantors, a further covenant, that " in case of 
 failure or refusal to execute and deliver a proper 
 deed, as specified," the vendor shall pay $5,000, 
 stipulated as liquidated damages for such non- 
 performance, must be construed as applying 
 only to the agreement to execute a deed, and 
 not to the warranty of title implied from the 
 agreement to sell ; and the vendee, refusing to 
 accept the conveyance on account of a defect 
 of title, can recover only nominal damages 
 beyond his expenses. lb. 
 
 8. A covenant in a sealed lease between a 
 sub-lessee and his lessor, that the former will 
 not at any time before June, 1867, negotiate for 
 or accept, or be interested in any lease of tlie 
 premises, except from such lessor, under a for- 
 feiture of $10,000, to be paid as liquidated 
 damages and not as a penalty, is valid and 
 upon breach thereof the lessor is entitled to 
 recover the damages stipulated. N. Y. Supr. 
 Ct., 1871, Smith v. Coe, 33 N. Y. Supr. (1 J. & 
 Sp.) 480. 
 
 4. A stipulation in a contract for the forfeit- 
 ure of a sura certain upon default in a partic- 
 ular covenant only, where the damages would 
 otherwise be conjectural and uncertain, and the 
 intention of the parties to that effect is plainly 
 expressed, — Held, to be liquidated damages and 
 not a penalty. N. Y. C. P., 1871, Shute v. Ham- 
 ilton, 3 Daly, 462. 
 
 5. Penalty. If a contract contains a penalty, 
 the party injured by a breach thereof has his 
 election to sue for tlie penalty or for the breach, 
 and in the latter case he is not limited in the 
 amount of damages to the penalty. Ct. App., 
 1875, Noyes v. Phillips, 60 N. Y. (15 Sick.) 408. 
 
 II. EXEMPLAKT DAMA8ES. 
 
 6. 'When allo'wed. To justify exemplary 
 damages, there must be an intentional violation 
 of another's rights, or with malicious intent to 
 injure another in his person or property. They 
 cannot be allowed in an action against a railroad 
 company for the act of its conductor in putting 
 off a passenger for non-payment of extra fare 
 on a palace car, without malice or unnecessary 
 force. Sup. Ct., 1875, Cox v. N. Y. Cent. Sr 
 Hud. Riv. R. R. Co., 4 Hun, 176. 
 
 7. Where the conductor of a street railroad 
 car, ignorant of the fact that a passenger had 
 paid his full fare upon another car from which 
 he had been transferred by order of the con- 
 ductor of the latter to his own, ejected him for 
 refusing to pay an additional fare, with full 
 belief that he was doing his duty, and using no 
 more force than was necessary, — Held, that 
 exemplary damages were not recoverable. Ct. 
 App., 1873, Hamilton v. Third Avenue R. R. Co., 
 53 N. Y. (8 Sick.) 26; Kev'g 44 How. 294; 13 
 Abb. N. S. 318; 35 N. Y. Supr. 118. 
 
 8. For the negligence of a servant while en- 
 gaged in the business of the master, the latter 
 is not liable to punitive damages, unless he is 
 also chargeable with gross misconduct, as, by 
 authorizing or ratifying the act of the servant, 
 or employing or retaining him knowing that he 
 was incompetent, or, from bad habits, unfit 
 for the position he occupied. Ct. App., 1874, 
 Cleghorn v. New York Central R. R. Co., 56 N. 
 T. (11 Sick.) 44. 
 
 9. Corporations may incur this liability as 
 well as natural persons. lb. 
 
 10. In an action for an injury to plaintiff's 
 
 horse, occasioned by a collision with the horse 
 and carriage of defendant, exemplary damages 
 may be recovered, where the act of the latter 
 appears to have been wilful. N. Y. C. P., 1871, 
 Lewis V. Bulkley, 4 Daly, 156. 
 
 11. Exemplary damages may be recovered in 
 actions based upon negligence ; and the omis- 
 sion by a carrier of passengers, either in the 
 construction or management of its machinery 
 of the usual and ordinary means of protection, 
 which omission is the cause of an accident, 
 would evince that recklessness of the lives and 
 safety of passengers which would justify such 
 damages. 'Ct. App., 1872, Caldwell v. New Jersey 
 Steamboat Co., 47 N. Y. (2 Sick.) 282; Aff'g S. 
 C, 56 Barb. 425. 
 
 12. Where cattle, foimd trespassing, were 
 secured by the owner of the land before they 
 had done more than nominal damages, and their 
 owner, a few hours afterward, against the 
 remonstrances of the former, threw down his 
 fence and drove the cattle away, — Held, that 
 the trespass of the latter was wilful, their de- 
 tention for 24 hours being authorized by law, 
 and the jury were authorized to give exemplary 
 damages. Com. App., 1872, Allabade v. Mott, 
 51 N. Y. (6 Sick.) 651. 
 
 III. In actions fob bkeach or contkaot. 
 
 1. In general. 
 
 13. Natural and necessary result. The 
 
 rulg, that, in the recovery of damages for torts 
 not intentionally committed, and breaches of 
 contract, the injured party is restricted to such 
 as result naturally and necessarily from the act 
 complained of, is one of general application, 
 including all cases, except those in wliich, for 
 the ends of public justice, punitory damages 
 may also be allowed. Sup. Ct., 1872 People, etc., 
 V. Mayor, etc., of the City of Albany, 5 Lans. 524. 
 
 14. In an action brought for the benefit of 
 certain parties whose buildings had been injur- 
 ed by water let into the canal basin at Albany 
 through an enlargement of the opening from 
 the river into it, which enlargement was author- 
 ized upon the city's undertaking to pay all 
 damages to property caused thereby, it appear- 
 ing that the immediate cause of the sudden 
 influx of water was the breaking away of an 
 unusual ice dam w.hich had formed above the 
 opening about a year after it was enlarged, — 
 Held, that the injury did not result naturally or 
 necessarily from tlie enlargement. lb. 
 
 15. Necessarily contemplated. The dam- 
 ages tor an incorrect transmission of a message 
 by telegraph, are limited to those resulting from 
 the ordinary and obvious purpose of the contract 
 or necessarily contemplated ijy the parties in the 
 light of facts known to botli ; and when a spe- 
 cial purpose, is intended by one party but not 
 known to tlie other, such special purpose will 
 not be taken into account in the assessment of 
 damages. Ct. App., 1871, Baldivin v. United States 
 Telegraph Co., 45 N. Y. (6 Hand,) 744. 
 
 16. Consequential. In an action by a con- 
 tractor against his sub-contractor for abandoning 
 the work undertaken by the latter, the plaintiff 
 may recover as part of his damages the expense 
 of necessary superintendence of the workmen em- 
 ployed to complete the job. Sup. Ct., 1875, 
 Greene v. Thomas, 4 Hun, 809. 
 
 17. Prospective. In an action to recover 
 damages for tlie breach of a contract to support 
 the plaintiff during life, such contract is to be 
 treated as an entire contract, and a failure to 
 
DAMAGES. 
 
 233 
 
 provide for the support of the person entitled 
 thereto in compliance with the contract is an 
 entire breach, and damages may be given for 
 the future as well as the past support of such 
 person. Sup. Ct., 1873, Schell v. Plumb, 46 How. 
 11 ; Aff'd, 55 N. Y. (10 Sick.) 592. 
 
 18. Breach of promise. A verdict for $16,000 
 damages, — Held, not excessive, in an action by 
 a woman in humble circumstances earning her 
 living as a dressmaker, against a merchant in 
 good credit and living in a style of affluence. 
 Brooklyn City . Ct, 1872, Homan v. Earle, 13 
 Abb. N. S. 402. 
 
 19. Compensatory. In an actio'ta upon a 
 note, by one who has agreed to release one-half 
 of such note, in consideration of certain things 
 to be done and payments to be made by the de- 
 fendant, and has received and retained part of 
 the consideration for his promise, the plaintiff 
 can only recover so much as he has lost through 
 the default of tlie defendant to fully perform his 
 part of the agreement. Sup. Ct., 1863, Ellenwood 
 V. Fults, 63 Barb. 321. 
 
 20. The measure of damages for breach of a 
 condition as to time of performance, contained 
 in a building contract, when the contractor is 
 allowed subsequently to go on and complete the 
 work, is the value of the use of the building, 
 while the owner is deprived thereof in conse- 
 quence of the delay. Ct. App., 1873, Ruff v. 
 Rinaldo, 55 N. Y. (10 Sick.) 664. 
 
 21. Contract payable in bonds. On a cer- 
 tificate of indebtedness, made payable on demand 
 after a specified day, with interest, in the bonds 
 of the debtor, if the debtor does not, on proper 
 demand, make payment in bonds, the creditor 
 may recover the amount of the indebtedness 
 with interest, in an action for that purpose. Sup. 
 Ct., 1873, Pusey v. New Jersey West Line R. R. 
 Co., 14 Abb. -&. S. 434. 
 
 22. — in gold. Under a contract to transport 
 certain goods from Bordeaux to New York for 
 thirty francs in gold as freight, the carrier is 
 entitled to the coin,, or its equivalent in our cur- 
 rency. N. Y. C. P., 1869, Gunther v. Colin, 8 Daly, 
 125. 
 
 28. The measure of damages on a bill of ex- 
 change payable in gold dollars is the amount of 
 the biU and interest, payable in coin •; not its 
 value in -depreciated currency ; and the judg- 
 ment should in terms provide for payment in 
 the better currency. Ct. App., 1870, Chrysler v. 
 Renois, 43 N. Y. (4 Hand,) 209. 
 
 24. — in sterling exchange. In determining 
 the measure of recovery upon a sterling bill, 
 drawn in London and accepted in New York, the 
 custom of merchants must be considered ; and 
 the holder is entitled to recover the actual or 
 real par of exchange, instead of the nominal par. 
 ». Y. C. P., 1869, Guiteman v. Davis, 3 Daly, 120. 
 
 25. Contract to fill contracts. Where, on 
 assignment of a business, the assignee agrees to 
 fill tiie contracts of his assignor with third 
 parties, and, in consequence of his failure so to 
 do, an action is brought and judgment recovered 
 against such assignor, the measure of damages 
 of the latter is prima facie the amount of the 
 recovery, together with his expenses and dis- 
 bursements in defending. Ct. App., 1874, Dubois 
 V. Hermance, 56 N. Y. (11 Sick.) 673. 
 
 26. — to furnish business. In an action 
 against a railroad company to recover the value 
 of land conveyed to it in consideration of its 
 verbal agreement to give the grantor the busi- 
 ness of temporarily keeping and feeding all stock 
 transported over the road, which agreement the 
 company had repudiated after performing for 
 
 something over a year ; — Hdd, that the plaintiS 
 was entitled to recover such value, less the 
 amount of profits, realized by him from the 
 business already furnished him by the company. 
 Com. App., 1873, Day v. New York Cent. R. R. 
 Co., 51 N. Y. (6 Sick.) 583. 
 
 27. — to furnish engine. On a sale of a 
 steam engine, defective when delivered, the 
 measure of damages is, not the amount that 
 might have been earned with such engine during 
 the delay caused by repairs, but the difference 
 in rental value of the manufactory of the pur- 
 chaser, with and without such engine, during 
 that time. Ct. App., 1871, Cassidy v. LeFeore, 45 
 N. Y. (6 Hand,) 562. 
 
 28. — to furnish orders. The proper mea- 
 sure of damages for the breach of a contract to 
 furnish to a manufacturer orders for goods to be 
 manufactured to the amount of $30,000 within 
 one year, and to furnish the materials and pay 
 him " 10 per cent, beyond the costs of materials 
 and all expenses of manufacture," is 10 per 
 cent, iipon the amount of orders not furnished, 
 deducting cost of materials and manufacture, 
 such 10 per cent to be considered as an item of 
 the cost of manufacture. Com. App., 1874, 
 Cramer v. Metz, 57 N. Y. (12 Sick.) 659. 
 
 29. — to insure. In an action for the breach 
 of a preliminary agreement to insure premises 
 and issue a policy therefor, brought after the 
 destruction of the premises by fire, the proper 
 measure of damages is the amount agreed to be 
 insured. Ct. App., 1874, Angell v. Hartford F. 
 Ins. Co., 59 N. Y. (14 Sick.) 171. 
 
 80. — to invest. In an action on an agree- 
 ment to invest certain moneys furnished by 
 plaintiff, in the purchase of prize claims, and to 
 collect the same for one-half the net profits 
 realized on the investments, the plaintiff may 
 recover the whole amount advanced with inter- 
 est, whether defendant invested it or diverted it 
 to other uses, and also one-half the profits real- 
 ized on what was invested. Com. App., 1873, 
 Prouty V. Swifi, 51 N. Y. (6 Sick.) 594. 
 
 31. — to purchase. The rule of damages 
 for the breach of a contract to form a stock 
 company for the manufacture of articles under a 
 certain patent, and to purchase such patent and 
 pay the vendor therefor a certain amount in 
 stock of such company, is the value which such 
 stock would have had if the contract had beeij 
 performed, over and above the property proposed 
 to be sold, but retained by the plaintiff. Sup. 
 Ct., 1872, Kirschmann v. Lediard, 61 Barb. 578. 
 
 32. Demurrage. In the absence of a special 
 agreement as to the rate of demurrage, the mea- 
 sure of damages will be what the vessel is ca- 
 pable of earning, or would usually earn, during 
 the time she is detained by the delay or negli- 
 gence of the freighter. N. Y. C. P., 1870, Bixbu 
 V. Bennett, 3 Daly, 225. 
 
 38. Interest. In an action against an attor- 
 ney to recover money collected by him on a 
 judgment for the plaintiff, the latter is entitled 
 to recover interest only on the balance after de- 
 ducting the amount which the attorney was en- 
 titled to retain for his services when the money 
 was collected. Sup. Ct., 1874, Hover v. Heath, 3 
 Hun, 283. 
 
 34. In an action upon a claim whereon, if 
 anything is due, it is a sum liquidated and cer- 
 tain, the fact that the jury arbitrarily reduce 
 plaintiff's recovery below that sum, does not 
 affect his right to interest upon the amount ac- 
 tually recovered. Ct. App., 1873, Martin v. 
 SiUiman, 53 N. Y. (8 Sick.) 615. 
 
 35. Loss of profits. Whether loss of profits 
 
234 
 
 DAMAGES. 
 
 can be recovered as damages in an action for a 
 breach of contract is not entirely clear ; but if 
 suoii loss was the immediate and natural conse- 
 quence of the breach, it might be recovered in a 
 special action on the case. N. Y. Supr. Ct., 1874, 
 Morey v. Metropolitan Gas L. Co., 38 N. Y. Supr. 
 (6 J. & Sp.) 185. 
 
 36. Loss of profits, if they cannot be traced 
 directly to the breach of contract or duty, or are 
 not the immediate result of the breach, are re- 
 garded as too remote, uncertain and unreliable 
 to form tlie basis of damages, in any action 
 where they can be allowed. lb. 
 
 37. When parties making a contract of sale 
 have such a knowledge of special circumstances, 
 affecting the question of damages in case of a 
 breach thereof, as that it may be fairly inferred 
 that they contemplated a particular rule or stan- 
 dard for estimating them, and entered into the 
 contract upon that basis, that rule will be adopt- 
 ed by the courts. Ct. App., 1875, Booth v. 
 Spuyten Duyvil Boiling Mill Co., 60 N. Y. (15 
 Sick.) 487. 
 
 38. In an action by a plaintiff who, having 
 agreed to furnish to a railroad company 400 tons 
 of iron rails with steel caps, contracted with the 
 defendant to furnish such caps at a specified 
 time, informing the latter of the purpose for 
 which they were wanted, to recover damages for 
 their non-delivery ; — Held, that in the absence 
 of proof that the price the plaintiff was to re- 
 ceive was extravagant or of an unusual or excep- 
 tional character, he was entitled to recover as 
 damages the profits he would have realized ; and 
 that this rule was not changed by the fact that 
 the price he was to receive was not communi- 
 cated to the defendant, it being a new article 
 having no market value, or by the fact that the 
 defendant's contract did not emlSrace the entire 
 article the plaintiff had contracted to sell. lb. 
 
 39. It seems that the rule of damages adopted 
 in cases of marine trespass (which is the prime 
 cost or value of the property at the time of loss 
 with interest), is not applicable to the case of 
 the violation of' a contract to purchase goods for 
 sale at their place of destination, where their 
 market value at that place can be shown, but 
 even a loss of profits may be recoverable, if they 
 are a direct consequence of the breach and with- 
 in the contemplation of the parties at the time 
 of contracting. Ct. App., 1872, Heinemann v. 
 Heard, 50 N. Y. ( 5 Sick.) 27 ; Kev'g S. C, 58 
 Barb. 524. 
 
 40. In an action for breach of a contract to 
 purchase silk in China and ship to plaintiffs in 
 New York, the proper measure of damages is 
 the difference between the cost of the silk laid 
 down in New York, and its market value there 
 at the time it would have arrived in the usual 
 course of trade ; the loss being . of profits con- 
 templated at the time of entering into the con- 
 tract, and a direct consequence of the breach. 
 Sup. Ct., 1874, Heineman v. Heard, 2 Hun, 324. 
 
 41. In an action for the non-delivery, accord- 
 ing to contract, of articles which cannot ■ other- 
 wise be procured, and have no market price, or 
 cannot be supplied without great delay, the or- 
 dinary a-ule of damages, that is, the difference 
 between the contract price and the market price, 
 will not give full indemnity, but the purchaser is 
 entitled to recover for the net gains which he 
 would have received from the use to which he 
 was prepared to put the articles if delivered. 
 Sup. Ct., 1874, Sternfeb v. Clark, 2 Hun, 122. 
 
 42. So held, in an action on a contract by a 
 contractor for the removal of dead animals from 
 the city of Brooklyn, to deliver the carcasses 
 
 to one who had a factory for the manufacture of 
 portions of such carcasses into valuable and 
 marketable commodities. lb. 
 
 43. In an action against the seller, for the 
 breach of a contract for the sale of merchandise, 
 the measure of damages is the difference be- 
 tween the price agreed to be paid and the mar- 
 ket price at the time ^nd place of delivery; 
 except that, where the purchaser has contracted 
 to sell the same article to another at a higher 
 price, and the' seller was notified of that fact 
 when he made his contract, the purchaser may 
 recover as damages the profit which would have 
 accrued to him on performance of his contract 
 Sup. Ct., 1876, Laird v. Townsend, 5 Hun, 107. 
 
 44. A breach of contract to plane and prepare 
 a plate for printing the backs of cards, does not 
 entitle the other party to recover, as damages, 
 the loss sustained by being deprived of the plate 
 in his business. Com. App., 1872, Krom v. 
 Levy, 48 N. Y. (8 Sick.) 679. 
 
 45. Upon the rescission of a contract for the 
 manufacture of an article, the manufacturer 
 may recover the actual damages sustained by 
 him, including loss of profits, labor expended in 
 good faith, and loss upon the materials by the 
 labor put upon them for a particular purpose. 
 Ct. App., 1870, Dillon v. Anderson, 43 N. Y. 
 (4 Hand,) 231. 
 
 46. But, after notice given of the rescission,- 
 the manufacturer is bound to do all in his power 
 to save the other party harmless, even if that 
 calls for afSrmative action on his part ; and he 
 cannot recover for labor expended or loss upon 
 materials purchased after such notice. lb. 
 
 47. In an action for the breach of a contract 
 to continue to employ the plaintiff as defendant's 
 agent for the sale of a patented article, and 
 allow him commissions on the sale, estimates of 
 probable sales form no proper criterion for fix- 
 ing damages, as the actual damages and actual 
 loss of profits, only, can be recovered. Sup. Ct., 
 1872, Washburn v. Hubbard, 6 Lans. 11. 
 
 48. Where, upon a sale of a milk equipage and 
 the good- will of a milk route, the vendor agreed 
 not to sell any milk to customers upon that 
 route for a period of three years, the measure 
 of damages for a breach of such agreement is 
 the plaintiff's loss of customers and daily profits 
 resulting therefrom. N. Y. C. P., 1871, Tuttle 
 V. Hannegan, 4 Daly, 92. 
 
 49. In an action to recover damages for 
 breach of an agreement to continue a partner- 
 ship for five years, where it appears that the 
 whole capital provided by the articles of co- 
 partnership had been lost before the defendant 
 refused to further continue the business, — Held, 
 that it was error to leave the jury to estimate 
 the profits which might accrue during the re- 
 mainder of the term subsequent to the trial, 
 from what in their own view was probable, ' 
 without any data on which to base their esti- 
 mate. Sup. Ct., 1871, Van Ness v. Fisher, 5 
 Lans. 236. 
 
 50. Performance prevented. The meas- 
 ure of damages, in an action by an employee to 
 recover for services done and materials fur- 
 nished under a contract for altering and repair- 
 ing a house, which the employer has prevented 
 him from performing, is the fair value of the 
 materials and work furnished and performed. 
 N. Y. Supr. Ct., 1871, Moran v. McSwegan, 83 
 N. Y. Supr. (IJ. & Sp.) 350. 
 
 51. Where the party for whom service is to be 
 rendered under a contract, wilfully delays and 
 embarrasses its performance by the other, who 
 endeavors to complete it, but is finally obliged 
 
DAMAGES. 
 
 235 
 
 to abandon the work, the latter may reoover the 
 actual value of his services rendered, even 
 though it is in excess of the compensation fixed 
 by the contract. N. Y. C. P., 1871, Doughty v. 
 O'Dmnell, 4 Daly, 60. 
 
 2. Contract and market price as measure. 
 
 52. Contract price. In an action to re- 
 cover the value of goods sold through the inter- 
 vention of a broker, where it appears that such 
 broker fraudulently pretended to be the owner 
 and collected payment therefor, the real owner 
 can only recover the contract price, inasmuch 
 as the action is upon the sale, and therefore 
 afiSrms it so as to bind such owner by its terms. 
 Sup. Ct., 1874, Gallup V. Lederer, 1 Hun, 282. 
 
 63. After performance of a special contract a 
 party may sue as upon an implied assumpsit, 
 and give the contract price in evidence as tlie 
 measure of damages. Sup. Ct., 1875, Higgins v. 
 Newtown Sr F. R. R. Co., 3 Hun, 611. S. P. Ray- 
 mond V. Hanford, 3 Hun, 612. 
 
 54. A contract to produce a play on a day 
 specified, and to pay the author $20 for each 
 time of its performance, without any specific 
 agreement for its continued performance, does 
 not bind the contractor to produce the play but 
 once, and for his failure to do so he is liable in 
 damages only for the amount to be paid for one 
 exhibition. Sup. Ct., 1875, Schonberg v. Cheney, 
 3 Hun, 677. 
 
 55. A party to a contract for furnishing 
 boxes, wjjo has always been ready and willing 
 to furnish them according to his contract, but 
 has been prevented from so doing by the acts 
 and neglects of the other party, is entitled to 
 recover the contract price of such boxes in an 
 action therefor. Sup. Ct., 1874, Slawson v. Al- 
 bany Railway Co., 1 Hun, 488 ; Aff'd, S. C, 60 
 N. Y. (15 Sick.) 606. 
 
 56. In an action on a contract for the purchase 
 of a quantity of ice, the purchaser, after deUvery 
 of part, having refused to receive the balance 
 upon grounds which were not sustained, and the 
 seller having kept it until worthless, — Held, 
 that the latter was entitled to recover the unpaid 
 price for the whole quantity. Sup. Ct., 1874, 
 Schoonmaker v. Rouse, 1 Hun, 611. 
 
 57. Non-acceptance. The measure of 
 damages for a breach by the vendee of a con- 
 tract to take the property contracted for and 
 pay a stipulated price, is the difference between 
 the contract price and the value of the property 
 at the time of the breach. A mere negotiation 
 between the parties to settle the amount by 
 arbitration, not carried into effect, will not alter 
 or postpone the rights of the parties as they 
 existed at the time of the breach. Sup. Ct., 
 1872, Hewitt V. Miller, 61 Barb. 567. 
 
 58. Non-delivery. If property contracted 
 to be sold has a market value at the place 
 where the deUvery is to be made, that must 
 control the damages for non-delivery, unless 
 the parties contemplated a different market, 
 and resort can be had to the price at other 
 places only when there is none at the place of 
 delivery. Sup. Ct., 1874, Rice v. Manley, 2 Hun, 
 492. 
 
 59. The true rule of damages for the breach 
 of a contract to sell and deliver coal, by its non- 
 shipment within a reasonable time, or in its 
 regular order, is the difference between the cost 
 price and the value of the coal at the place of 
 delivery, on the day when it should have been 
 delivered ; not the loss of profits which might 
 have been made thereon if received in time. 
 
 Sup. et., 1873, Yorke v. Ver Planck, 65 Barb. 
 316. S. P. Read v. Prest, ^c, of Del. ^ Hud. 
 Canal Co., 49 N. Y. (4 Sick.) 652. 
 
 60. In an action for the non-delivery of 
 materials for a building, according to contract, 
 the measure of damages is the difference be- 
 tween the contract price and the fair market 
 value. N. Y. Supr. Ct., 1875, Kemple v. Darrow, 
 39 N. Y. Supr. (7 J. & Sp.) 447. 
 
 3. For personal employment. 
 
 61. Breach by employer. Where a power 
 of attorney to collect back excessive duties, 
 paid or to be paid, provided for the payment of 
 one-half the amount so refunded as compensa- 
 tion for the attorney's services, — Held that, in 
 case of a revocation of the authority after the 
 commencement of services to procure a refund, 
 such attorney would be entitled to recover for 
 the services already performed, one-half the 
 amount that could have been obtained, less the 
 actual value of the services thereafter necessary 
 to be performed in obtaining it. Ct. App., 1872, 
 Culoer V. Western XJn. Telegraph Co., 50 N. Y. 
 (5 Sick.) 691. 
 
 62. A servant who is wrongfully dismissed 
 before the expiration of the term for which he 
 was hired, cannot afterwards sue for and recover 
 each subsequent instalment of his wages as it 
 becomes due, upon mere proof that he held him- 
 self ready to render the service contracted; but 
 he may, in an action for damages, recover his 
 pay for services actually rendered and not paid 
 for, and whatever damages he has sustained by 
 the breach of the contract ; and where it appears 
 that he has been unable to procure employment 
 after his discharge, and has therefore remained 
 idle, the amount agreed on as wages may be 
 taken as the measure of damages. N. Y. C. P., 
 1873, Moody v. Leverich, 14 Abb.N. S. 145 ; S. C, 
 4 Daly, 401. 
 
 63. In an action by a teacher against a trustee 
 of a school district to recover damages for the 
 breach of a contract of hiring, proof of the 
 plaintiff's offer to perform, and of the trustee's 
 refusal to allow her to do so, is prima facie suffi- 
 cient to entitle the plaintiff to recover the con- 
 tract price for the whole term of the hiring. 
 Sup. Ct., 1872, Gillis v. Space, 63 Barb. 177. 
 
 64. But the damages, in such a ease, may be 
 mitigated by proof that the plaintiff by making 
 reasonable exertions, could have secured other 
 like employment in the vicinity. lb. 
 
 4. On warranty. 
 
 ' 65. Of quality. On breach of a warranty 
 of the quality of material sold to be manufac- 
 tured into merchandise, the measure of damages 
 is the difference in value between articles made 
 of the defective material and similar articles 
 made of material equal to the warranty ; and 
 in ascertaining that difference, the vendee is not 
 confined to market prices. Com. App., 1874, 
 Parks V. Morris Axe and Tool Co., 64 N. Y. (9 
 Sick.) 586 ; Aff'g S. C, 41 How. 18 ; 4Lans. 103; 
 60 Barb. 140. 
 
 66. The measure of damages for a breach of 
 a warranty on the sale of goods, is the difference 
 between the value of the goods if they had cor- 
 responded- with the warranty, and their actual 
 value. Sup. Ct., 1871, Wells v. Selwood, 61 Barb. 
 238. 
 
 67. The damages allowable for the breach of 
 a warranty on sale of a steam engine, that it 
 would run a mill up to a certain horse-power, 
 
236 
 
 DAMAGES. 
 
 and that the engine and boiler, with their con- 
 nections and appurtenances, were sound and in 
 good order, and would perform and do a good 
 business up to that capacity, are the difference 
 between the value of the engine and boiler as 
 they were, and their value if they had cor- 
 responded with the warranty. Sup. Ct., 1871, 
 Edwards v. Collson, 6 Lans. 324. 
 
 68. Such warranty is not specific enough to 
 entitle the plaintifiE to recover special damages 
 for the diminished value of the use of the mill 
 per day. lb. 
 
 69. Of title. In an action by the purchaser of 
 a forged note against his vendor, to whom he 
 gave his own note in exchange, the measure of 
 recovery will be the amount of his own note and 
 interest, with tlie costs of a suit (of which liis 
 vendor had notice), to establish the genuine- 
 ness of the note purchased ; but he cannot re- 
 cover the costs of an unsuccessful defense, inter- 
 posedfby him in an action by a holder for value 
 on his own note. Ct. App., 1871, Whitney v. 
 National Bank of Potsdam, 45 N. Y. (6 Hand,) 
 303 
 
 IV. In actions against carriers, bailees 
 
 AND PLEDGEES. 
 
 70. Delay in transporting. In an action 
 against a carrier for delay in transporting goods, 
 the measure of damages is the difference in 
 their value at the time and place they ought to 
 have been delivered and at the time of actual 
 delivery. Ct. App., 1871, Ward v. New York 
 Central R. K Co., 47 N. Y. {2 Sick.) 29. S. T. 
 Livingston r. N. Y. Cent, and Hud. Riv. R.R.Co., 
 5 Hun, 862. 
 
 71. But where the consignee refuses to receive 
 them on account of such delay, and the con- 
 signor is unable to sell them at the place of de- 
 livery, the place of manufacture may be resorted 
 to for determining their value. Sup. Ct., 1874, 
 Vroman v. Am. Merch. Un. Express Co., 2 Hun, 
 512. 
 
 72. Where cotton was shipped by a certain 
 vessel, but only a portion of it arrived by that 
 vessel, the rest being delayed several days on 
 board another ship during which delay the mar- 
 ket price had fallen, — Held, that no recovery 
 could be had for such loss of market. N. Y. 
 Supr. Ct., 1870, Kirkland v. Leary, 2 Sweeny, 
 677. 
 
 73. Non-delivery. The measure of dam- 
 ages for breach of contract by non-delivery of 
 goods entrusted to a carrier for transportation 
 Is the market value of the goods at the place 
 of destination, at the time and in the condition 
 in which they should have been delivered, pur- 
 suant to the contract, less the price to be paid 
 for the service. Ct. App., 1871, Sturgess v. Bis- 
 se//, 46N. Y. (1 Sick.) 462. 
 
 74. An express company, which has 
 failed to obtain payment of a draft entrusted to 
 it for that purpose, after using due diligence in 
 attempting to do so, and has neglected to give 
 due notice of its non-payment to the person 
 from whom they received it, is liable to him for 
 the damages he actually sustained by reason of 
 its failure to give such notice ; but the latter 
 cannot recover the whole amount of the draft 
 without showing that there was, at least, a rea- 
 sonable probability that he could have collected 
 the whole if properly notified. N.Y. C. P., 1871, 
 Lienan v. Dinsmore, 41 How. 97 ; S. C, 10 Abb. 
 N.S. 209; 8 Daly, 368. 
 
 76. Conversion of securities. In an ac- 
 tion for the conversion of a note deposited with 
 
 the defendant as collateral security, brought 
 after repayment of the loan, the plaintiff is en- 
 titled to recover the amount promised thereby 
 with interest, notwithstanding such note may 
 have been altered in a material point so that the 
 maker might defeat an action upon it. Sup. Ct, 
 1871, Flint V. Craig, 59 Barb. 319. 
 
 76. In an action for the conversion of stock 
 by a broker with whom it is deposited as secu- 
 rity, the just and established rule of damages is 
 the highest price of the stock between the date 
 of the demand or conversion, and the day of trial. 
 Sup. Ct., 1872, Lawrence v. Maxwell, 6 Lans. 
 469; S. C, 64 Barb. 102; Affi'd, 53 N. Y. (8 
 Sick.) 19. 
 
 77. A broker who sells, without authority and 
 without notice, bonds held by him on marginal 
 security for a customer, is liable for any subse- 
 quent enhancement of their market value up to 
 the time of the trial, less the amount of his 
 claims. Brooklyn City Ct., 1871, Read v. Lavir 
 bert, 10 Abb. KT. S. 428. 
 
 78. In case of a sale after a tender of the 
 bonds, demand of payment, and notice of sale, 
 the measure of his liability would be the net 
 proceeds after deducting his claims. lb. 
 
 79. Sale at less than authorized. Where 
 a commercial factor or agent sells goods en- 
 trusted to him for that purpose at less than the 
 price authorized, the measure of damages is the 
 actual loss sustained ; and if he sold at the full 
 market value, and no subsequent increase of 
 market value is shown, there is no damage and 
 can be no recovery. Sup. Ct., 1872,^inde v. 
 Smith, 6 Lans. 464. 
 
 80. Mitigation of damages. A bailee of a 
 chattel, for a specified time, upon loan or 
 for hire, is liable as for a conversion, if he 
 retains the property after the bailment has ex- 
 pired and after request made for its return ; but 
 the subsequent return and acceptance of the 
 chattel may be considered in mitigation of dam- 
 ages. N. Y. C. P., 1870, Fox v. Pruyn, 3 Daly, 
 187. 
 
 81. Stockbroker's contract. The dam- 
 ages recoverable upon the refusal of a stock- 
 broker to obey the order of his customer to pur- 
 chase stock to cover a short sale made by him, 
 as he was bound to do by his contract, is the 
 difference between the price at which the stock 
 was sold short, and the market price on the day 
 when he received the order to purchase, with 
 interest, less commissions. Ct. App., 1874, White 
 V. Smith, 54 N. Y. (9 Sick.) 522; Aif'g S. C, 6 
 Lans. 5. 
 
 82. In an action for damages, under a contract 
 whereby the plaintiff has agreed to hold certain 
 stock 30 days for the defendant, the latter 
 paying all losses, — Held, that there was no loss 
 until a sale of the stock, and the plaintiff, hav- 
 ing elected to hold it longer than 30 days, 
 could recover only his actual loss upon the sale, 
 though less than it would have been at the end 
 of that time. N. Y. C. P., 1869, Monroe v. Peck, 
 3 Daly, 128. 
 
 V. In action against lessor or lessee ; ven- 
 dor OR vendee of lands. 
 
 83. Neglect to repair. The measure of 
 damage for the neglect of a landlord to per- 
 form his agreement to keep the premises in good 
 repair, is either the actual damages to the prop- 
 erty of the tenant in consequence of the defects, 
 or the difference between the value of the use 
 of the premises as they actually were, and the 
 value of such use as they should have been un- 
 
DAMAGES. 
 
 237 
 
 der'the agreement ; but the tenant cannot re- 
 cover both the damages and the difference in the 
 value of the use. Sup. Ct., 1873, Cook v. Soule, 
 45 How. 340 ; AfE'd, S. C, 56 N. Y. (11 Sick.) 
 420. 
 
 84. Injury by leakage of the roof to property 
 of the tenant, which, as was contemplated by 
 the parties, would necessarily and properly be 
 kept in the building in the prosecution of his busi- 
 ness, and the expense of temporarily keeping 
 some of the property elsewliere in consequence 
 of the untenantable condition of the premises, 
 are not too remote. lb. 
 
 86. Covenant for possession. In an action 
 by a lessee of a hotel against his lessor, for the 
 breach of a covenant to make repairs therein 
 and to complete a new building adjoining 
 thereto and to be connected therewith for 
 hotel purposes, and put him in possession thereof 
 by the time specified, where there is evidence 
 of the value for use of rooms in a hotel, both 
 furnished and unfurnished, varying according 
 to the season of the year, the measure of dam- 
 ages is the value of the use of furnished rooms 
 for such as he has furniture for, and the value 
 of the use of unfurnished rooms for the others, 
 according to the season of the year when the 
 breach occurred. N. Y. Supr. Ct., 1875, Hexter 
 V. Knox, 39 N. Y. Supr. (7 J. & Sp.) 109. 
 
 86. — to dig ■well. Under a lease of all the 
 lessor's interest in the premi.ses, without term 
 mentioned or rent reserved, but containing a 
 stipulation by the lessee to dig an oil well of a 
 certain depth by a time specified, with a right 
 of re-entry on breach, — the lessor cannot, in an 
 action for breach of such covenant, recover the 
 cost of digging a well of the dimensions speci- 
 fied, but only nominal damages. Ct. App., 1871, 
 Chamberlain v. Parker, 45 N. Y. (6 Hand,) 569. 
 
 87. — to pay taxes. A covenant to pay 
 taxes on demised premises is not one of indem- 
 nity, but is broken whenever the covenantor 
 neglects to pay a tax duly imposed, and, without 
 having first paid the tax, the covenantee may 
 recover the amount thereof in an action on 
 the covenant. Com. App., 1872, Rector, etc., of 
 Trinity Church, v. Biggins, 48 N. Y. (3 Sick;) 532 ; 
 Rev'gS.C, 4Bob. 372. 
 
 88. The risk attending a recovery in such 
 case, without pre-payment by the covenantee 
 may be avoided by the defendant by payment 
 of the tax after judgjaent, when, upon proper 
 application, proceedings for the collection of the 
 judgment, except as to costs, would be stayed, 
 and upon payment of the costs, satisfaction 
 would be ordered. lb. 
 
 89. Lease of sheep. For the breach of a 
 contract to return leased sheep in the same con- 
 dition as when let, by returning them in a con- 
 dition to drop their lambs in cold weather, the 
 true measure of damages would be the difference 
 between the value of the sheep for sale in mar- 
 ket at the time in that condition and their value 
 if they had not been in that condition. It can 
 not be based upon the difference in value of the 
 lambs for sale to butchers six months later. 
 Sup. Ct. 1870, Williams v. Frazier, 41 How. 
 428. 
 
 90. Breach of ■warranty. A grantee of 
 lands under a deed containing covenants of war- 
 ranty and for quiet enjoyment, who becomes 
 himself the purchaser on foreclosure of a prior 
 mortgage, and, assigning his bid to a third party, 
 delivers possession to him of the premises upon 
 receipt of the sheriff's deed, may maintain an 
 action as for an eviction against his grantor, and 
 recover the whole purchase price as damages, 
 
 and not merely the amount of such mortgage. 
 Com. App., 1871, Covidery v. Coit, 44 N. Y. (5 
 Hand,) 382. 
 
 91. ITon-couveyance. The general rule, in 
 this State, in the case of executory contracts for 
 the sale and conveyance of lands is, that in case 
 of breach by the vendor, the vendee can recover 
 only nominal damages, in addition to the pur- 
 chase-money paid by him, if any. It is only 
 where the vendor has been guilty of some wrong, 
 or fraud, or can convey and will not either from 
 perverseness or to secure a better bargain, or 
 contracted to convey knowing that he had no 
 authority to do so, or refuses or neglects to 
 remedy a defect in his title which is within his 
 power, that he is liable to the vendee (or the 
 loss of his bargain. Com. App., 1874, Margraf 
 V. Muir, 57 N. Y. (12 Sick.) 155. 
 
 92. — free of incumbrances. The measure 
 of damages for the breach of a contract to con- 
 vey land free of incumbrances, by the non- 
 tender of a release of dower of the vendor's wife, 
 is the difference between the contract price and 
 the value of the property at the time of the 
 breach. N. Y. Supr. Ct., 1872, Heimburg v. 
 Ismay, 35 N. Y. Supr. (3 J. & Sp.) 35. 
 
 93. Refusal to give possession. Where, 
 after payment of the purchase price of lands, 
 the vendor wrongfully refuses to give possession, 
 the vendee is not limited, in his recovery of 
 damages, to the rental value of the premises, but 
 may at his election recover interest on the pur- 
 chase-money, in case that is the greater. Ct. 
 App., 1873, Warrall v. Munn, 53 N. Y. (8 Sick.) 
 186. 
 
 94. The measure of damages for waste com- 
 mitted by a vendor under such circumstances, 
 is not alone the injury to the inheritance, but 
 the value of the materials removed from the 
 land should also enter into the estimate. lb. 
 
 96. Refusal to purchase. If a vendor of 
 land rescinds the contract upon default of the 
 purchaser to complete it, or brings an action on 
 the contract, he can recover such damages only 
 as wUl compensate him for tlie loss of his bar- 
 gain. He cannot recover the contract price ex- 
 cept in an action for specific performance. 
 Brooklyn City Ct., Sp. T., 1871, Congregation Beth 
 Elohim V. Central Presb. Church, 10 Abb. N. S. 
 484. 
 
 96. Where a vendor of lands, on refusal of the 
 vendee to fulfil, sells the same to another, he can 
 recover of S'uch vendee the sum he was obliged 
 to pay for broker's fees on resale, but not the 
 amount of counsel fees paid by him for defend- 
 ing an action brought by such broker therefor. 
 N. Y. C. P., 1873, Hening v. Punnett, 4 Daly, 
 543. 
 
 VI. In actions fos tokts. 
 
 1. Injuries to persons, 
 
 97. Negligence. The sudden pulling in of a 
 gang plank by a deck hand of a steamboat com- 
 pany, whereby one passing along it is precipi- 
 tated into the water and injured, furnishes no 
 ground for the recovery of exemplary damages 
 against the employer, where it appears tliat the 
 act was done inadvertently without observing 
 the presence of such person on the plank. N .Y. C. 
 P., 1872, Baldwin v. New York |- Harlem Nav. 
 Co., 4 Daly, 314. 
 
 98. Present and prospective. Successive 
 actions cannot be brought for the recovery of 
 damages as they accrue from a single act of 
 negligence, but tlie party injured may, in an ae- 
 
238 
 
 DAMAGES. 
 
 tion, recover compensation for all the damages 
 resulting from the injury, whether present or 
 prospective. Ct. App., 1872, Filer v. New York 
 Central R. R. Ca., 49 N. Y. (4 Sick.) 42. 
 
 99. The party injured may, therefore, recover 
 not merely for past bodily pain and suffering, 
 but also for such as it is reasonably certain he 
 must endure in the future in consequence of it, 
 also for expenses for medicine and medical 
 treatment, and for the loss of wages or probable 
 earnings caused thereby. N. Y. C. P., 1871, 
 Brignoli v. Chi. ^ Grt. Eastern Ry. Co., 4 Daly, 
 182. S. P. Matteson v. N. Y. Cent. R. R. Co., 
 62 Barb. 364 ; Metcalf v. Baler, 67 N. Y. (12 
 Sick.) 662; Shehan v.' Edgar, 58 N. Y. (13 Sick.) 
 631. 
 
 100. It being the object of the law to fairly 
 compensate the party injured for the entire loss 
 directly caused by the injury, the pecuniary 
 consequences resulting from his inability to give 
 his business his attention, will form a proper 
 item of the remuneration to be made. Sup. 
 Ct., 1872, Walker v. Erie Railway Co., 63 Barb. 
 260. 
 
 101. The extent of the recovery in an action 
 for personal injuries occasioned by negligence, 
 cannot be measured by any precise rtiles, since 
 it is to be awarded, to a great extent, for pain 
 and suffering ; and the amount is therefore com- 
 mitted to the determination of the jury. lb. 
 
 102. Where tlie evidence showed that the in- 
 juries sustained by the plaintiff through the neg- 
 ligence of the defendant were of an exceedingly 
 painful, serious and permanent nature, some of 
 the important effects of which would probably 
 continue during his natural life, and might sen- 
 sibly abridge it, and would measurably unfit 
 him for his business ; and the plaintiff was in 
 his early manhood, engaged in an extensive and 
 lucrative practice of law, which was impaired by 
 his inability to give it the attention which it re- 
 quired, — Held, that the court could not say that 
 a verdict for $20,000 was excessive. 
 
 103. A verdict of $5,000 damages for an injury 
 to plaintiff's eye, resulting from defendant's 
 negligence, held excessive and set aside, where 
 it appeared that there was only a temporary loss 
 of sight in one eye, which did not prevent him 
 from carrying on his usual business. Sup. Ct., 
 1872, Tinney v. New Jersey Steamboat Co., 12 Abb. 
 N. S. 1 ; S. C, 5 Lans. 507. 
 
 104. Causing death. Damages can be al- 
 lowed, in an action for causing death by negli- 
 gence, only upon proof of loss, and the recovery 
 must be confined to the pecuniary loss sustained. 
 Sup. Ct., 1874, Mitchell v. N. Y. Cent, and Hud. 
 R. R. R. Co., 2 Hun, 535. 
 
 105. Putting off train. A railroad company 
 whose conductor wrongfully, but in good faith 
 and without violence, expels a passenger from 
 its train^ is not liable for anything more than the 
 actual damages. Sup. Ct., 1871, Fink v. Albany 
 andSusq. R. R. Co., 4 Lans. 147. 
 
 106. Seduction. In an action by a parent 
 to recover damages for the seduction of his 
 daughter, no additional damages can be given on 
 account of a promise of marriage made by the 
 defendant to the daughter shortly before the 
 seduction. Sup. Ct., 1871, Whitney v. Elmer, 60 
 Barb. 250. 
 
 2. Injuries to Personal Estate, 
 
 107. Collision. In an action for damages to 
 a vessel caused by a collision, the plaintiff is 
 entitled, as part of his damages, to recover the 
 value of the use of his boat while undergoing 
 
 repairs, as well as interest upon the cost of the 
 repairs. Com. App., 1872, Whitehall Trans. Com- 
 pany V. New Jersey Steamboat Co., 51 N. Y. (6 
 Sick.) 369. 
 
 108. The measure of damages for injuries to 
 a buggy caused by a collision, is its diminished 
 value by reason of the injury ; and the owner 
 cannot cause repairs to be made which do not 
 make it good, and recover the amount paid there- 
 for, and in addition the amount which such re- 
 pairs fall short of making it as, valuable as before. 
 Sup. Ct., 1876, Ryan v. Lewis; 3 Hun, 429. 
 
 109. Conversion. The measure of damages 
 in an action for conversion, is the highest market 
 price of the goods taken, from the time of con- 
 version to that of trial. N. Y. Supr. Ct., 1869, 
 Nauman v. Caldwell, 2 Sweeny, 212. 
 
 110. Where the aBtion was tried first in jus- 
 tice's court, and then appealed to the county 
 court, the plaintiff was entitled to recover the 
 highest market price between the time of con- 
 version and the time of the last trial. Com. 
 App., 1872, Lobdell v. Stowell, 51 N. Y. (6 Sick.) 
 70 ; Aff'g S. C, 37 How. 88. 
 
 111. The rule in ordinary cases, giving to the 
 plaintiff in an action for conversion the benefit 
 of the highest market price between the time of 
 conversion and trial, should not be applied in a 
 case where, by an agreement of the parties, it 
 was contemplated that the property should be 
 sold when it reached a certain price, and the 
 evidence shows that it would have been difficult 
 if not impossible to preserve it until the time 
 when the highest price was fixed. Ct. App., 
 1872, Matthews v. Coe, 49 N. Y. (4 Sick.) 67; 
 Eev'g S. C, 56 Barb. 430. 
 
 112. In the case of an unauthorized sale by a 
 broker of stocks purchasedby himfor a customer, 
 not as an investment, but on speculation merely, 
 — the latter paying only a small percentage of 
 their value to be retained by the broker as a 
 margin, the true rule of indemnity would be, 
 not the highest market price but the advance in 
 the price of the stock from the time of sale up 
 to a reasonable time to replace it, after notice 
 to the customer that it was sold. Ct. App., 1878, 
 Baker v. Drake, 53 N. Y. (8 Sick.) 211. 
 
 113. A plaintiff recovering in an action of 
 trover, is entitled to the value of the property 
 with interest from the time of conversion, as 
 matter of right. Ct. App., 1872, McCormick v. 
 Pennsylvania Central R. R. Co., 49 N. Y. 
 (4 Sick.) 303. S. P. Wehle v. Butler, 43 How. 
 5 ; 12 Abb. N. S. 139 ; 34 N. Y. Supr. (2 J. & 
 Sp.) 215 ; 85 N. Y. Supr. (3 J. & Sp.) 1 ; Ja^er 
 V. Kelly, 44 How. 122 ; Ormsby v. Vermont Cop 
 per Mining Co., 55 N. Y. (11 Sick.) 623 ; Kev*g 
 65 Barb. 360; Tyng v. Commercial Warehouse 
 Co., 58 N. Y. (13 Sick.) 308. 
 
 114. In actions for the conversion of personal 
 property, the measure of damages is, generally, 
 the market value at the time and place of the 
 conversion, with interest to the time of the trial ; 
 but there are some modifications or exceptions to 
 that rule. Sup. Ct., 1866, Spicer v. Waters, 65 
 Barb. 227. 
 
 116. Where the property has a market value 
 at the place of conversiouj the market value at 
 the place to which it was to be taken and sold, 
 less the cost and risk of transportation, cannot 
 be taken as the measure of damages. lb. 
 
 116. In an action for the conversion of a prom 
 Issory note, the amount appearing to be un- 
 paid thereon of principal and interest at the 
 time of the conversion, and the interest upon 
 that aggregate from thence to the trial, is prima 
 facie the measure of damages ; but the defend- 
 
DAMAGES. 
 
 239 
 
 ant should be permitted to show , in reduction 
 any matter which will legitimately affect and 
 diminish the value of the note. Ct. App., 1874, 
 Booth V. Powers, 56 N. Y. (10 Sick.) 22. 
 
 117. An alteration of the note in a material 
 part, unless made with fraudulent intent, would 
 not destroy the value of the note to the payee, 
 as upon its production would depend his right 
 to resort to the original indebtfedness ; and liis 
 damages from the conversion would, therefore, 
 be not less than the amount of such indebted- 
 ness with interest. lb. 
 
 118. In an action for the conversion of cer- 
 tain San Francisco W. W. Co. bonds, — Held, that 
 the fact that they were not in terms payable in 
 coin and might be discharged in legal tender 
 notes, did not conclude the plaintiff upon the 
 question of damages, but that the jury might 
 properly consider, upon that subject, the facts 
 that the company received gold for its water 
 dues, that gold continued in use in California 
 during the period involved, that the bonds were 
 actually paid in gold, and that money was bor- 
 rowed upon them as collateral at par with gold. 
 Com. App., 1873, Simpkins v. Low, 54 N. Y. (9 
 Sick.) 179; Aff'g 49 Barb. 382. 
 
 119. The legal tender acts of Congress relate 
 simply to the effect of the notes issued under 
 them as a tender in payment of debts arising 
 upon contracts, and do not forbid the recognition 
 in other relations of the difference between 
 toin and currency. lb. 
 
 120. A bank which has advanced money upon 
 the security of a bill of lading of grain, is not 
 limited in an action for the conversion of such 
 grain to the recovery of its advances, but may 
 recover the full value of the grain. Ct. App., 
 1875, Mech's. Sr Tr. Bank of Buff. V. Far. ^ 
 Mech's. Nat. Bank of Buff., 60 N. Y. (15 Sick.) 
 40. 
 
 121. In tffe absence of special circumstances, 
 the value at the time of the conversion, with 
 interest, furnishes the rule of compensation. 
 lb. 
 
 122. In an action against » sub-contractor, 
 employed to rescue a cargo of coal from a 
 wreck, for selling a portion of such coal under 
 an unauthorized power from the principal con- 
 tractor for that purpose, the measure of 
 damages is the value of the coal, less the 
 amount which the owners had agreed to pay 
 for rescuing the same. N. Y. C. P., 1873, 
 Sun Mut. Ins. Go. v. Talmadge, 4 Daly, 589. 
 
 123. In an action, to recover damages for 
 wheat taken and converted by the defendant, 
 where it appears that the defendant has mingled 
 the same with his own, damages are to be given 
 to the utmost value the article will bear. Sup. 
 Ct., 1876, Star v. Winegar, 3 Hun, 491. 
 
 124. If there is any uncertainty as to the true 
 quantity so mingled, the defendant must show 
 the true quantity, or stand the loss or risk of 
 mistake in the calculation of the jury resulting 
 from his own act. lb. 
 
 125. In an action for the conversion of a 
 quantity of household furniture, including 
 carpets, a charge that the rule of damages 
 would be "what would be the value to the 
 party if he wanted to get the same articles 
 again," — Held, no error ; that the party was 
 entitled not only to recover the market value, 
 but also the value of the labor in cutting, 
 making, and putting down. Ct. App., 1872, 
 Slarkey y. Kelly, 50 N. Y. (5 Sick.) 676. 
 
 126. Where the owner of property, seized by 
 the TJ. S. marshal as belonging to a bankrupt, 
 commences an action therefor before the same 
 
 is ordered to be sold by the bankruptcy court, 
 he is entitled to recover its full value, and not 
 merely the amount realized on the sale sub- 
 sequently ordered. Sup. Ct., 1874, Doll v. Har- 
 low, 2 Hun, 659. 
 
 127. In an action by a principal to recover 
 damages for a wrongful sale of his real estate by 
 his agent and conversion of the proceeds, the 
 plaintiff should be allowed the fair value of the 
 property wrongfully sold, to be ascertained 
 according to its market price within a reasonable 
 period after the commission of the wrong ; and 
 where the property consisted of a number of 
 parcels, amounting in value to a large sum, a 
 period of six months is not unreasonable. Sup. 
 Ct., 1874, Price v. Keyes, 1 Hun, 177. 
 
 128. In trover for a canal boat sold under a 
 chattel mortgage, the mortgagor, if entitled to 
 recover, can only recover the value of the 
 property at the time of the sale, and the value 
 of the use prior thereto. He is not entitled to 
 the value of the use subsequent thereto, being 
 bound to bring his action promptly. Sup. Ct., 
 1873, Balstead v. Swartz, 46 How. 289. 
 
 129. In an action for the conversion of a 
 horse, the plaintiff is entitled to recover, at 
 least, the actual damages sustained by him by 
 being deprived of its use, and the expenses- 
 incurred by him in regaining it, even if not 
 entitled to recover its full value by reason of 
 having retaken it from defendant's vendee. 
 Sup. Ct., 1851, Sprague v. McKinzie, 63 Barb. 
 60. 
 
 130. An offer to release an illegal levy, will 
 not, unless accepted, relieve the party so 
 offering in an action for the conversion of the 
 property ; but recovery may be had for the 
 full value of such property. Com. App., 1870, 
 Livermore v. Northrop, 44 N. Y. (5 Hand,) 107. 
 
 131. Factor's disobedience of instruc- 
 tions. The measure of damages in an action 
 to charge a factor with the value of the goods 
 consigned to him, because of his neglect to sell 
 
 .when instructed by his principal to do so, is the 
 market value of the goods at the time the order 
 was received, or within a reasonable time there- 
 after to be allowed for making a sale. Ct. App., 
 1876, Whelan v. Lynch, 60 N. Y. (15 Sick.) 469; 
 Aff'g S. C, 65 Barb. 326. 
 
 132. The cases allowing the highest market 
 •price between the receipt of the order and the 
 commencement of the action, disapproved. lb. 
 
 133. Fraudulent representations. In an 
 action for fraudulent representations in relation 
 to the incumbrances on a parcel of land, where- 
 by the plaintiff was induced to buy it from the 
 owner at an extravagant price, the plaintiff may 
 recover either the difference in value of tlie land, 
 as it was represented to be and as it really was,, 
 or the amount paid to redeem it from an incum- 
 brance existing and concealed from him at the 
 time of the purchase. Com. App., 1874, Northrop 
 V. Hill, 57 N. Y. (12 Sick.) 351 ; Aff'g S. C, 61 
 Barb. 136. 
 
 134. In an action for fraudulent representa- 
 tions whereby the plaintiff was induced to pur- 
 chase certain stocks, the measure of damages is 
 the difference in the value of the stock as the 
 condition of the corporation really was, and as 
 it was fraudulently represented to be by the ven- 
 dor. The market value, where the real condi- 
 tion of the company, as shown, proves them to 
 be in fact worthless, is entitled to no weight 
 in estimating tlje damages ; the purchaser not 
 being bound to mitigate his loss by cheating 
 some ignorant purchaser himself. Ct. App., 
 1872, Hubbell v. Meigs, 50 N. Y. (5 Sick.) 480. 
 
240 
 
 DAMAGES. 
 
 135. Illegal taxes. In an action against a 
 county board of supervisors to recover back the 
 amount of taxes collected from the plaintiff 
 which were afterward declared illegal, the plain- 
 tiff is entitled to recover the amount collected for 
 county and State purposes, but not the amount 
 collected for city purposes, which never came to 
 its treasury. Sup. Ct., 1874, Merchants Nat. Bank 
 of N, Y. City V. Board of Supervisors of the. 
 County ofN. Y., 3 Hun, 156; Aff'd by Ct. App. 
 
 136. Interest. In actions ex delicto it is in 
 the discretion of the jury to allow interest or 
 not, and it is error to charge them that the plain- 
 tiff is entitled to interest as a matter of right. 
 N. Y, C. P., 1872, Wehle v. Haviland, 42 How. 
 899; S. C. 4 Daly, 550. 
 
 137. In an action against a city to recover the 
 value of property destroyed by a mob, the jury 
 may allow the plaintiff interest on such value, 
 if they think justice requires it. Sup. Ct., 1872, 
 Orr V. Mayor, etc., of New York, 64 Barb. 106. 
 
 138. In an action for property destroyed by 
 the wrongful or negligent act of another, interest 
 on its value is a proper item of damage. Ct. 
 App., 1871, Parrott v. Knickerbocker and N. Y. 
 Ice Co., 46 N. Y. (1 Sick.) 361. 
 
 139. Misconduct of attorney. In an ac- 
 tion against an attorney for wilfully and cor- 
 ruptly accepting employment in hostility to the 
 plaintifi, after receiving a large stipulated fee 
 for all services to be rendered by him in her be- 
 half in the same matters, the measure of damages 
 is not the amount of the fee paid, but the dam- 
 ages proved to have been actually sustained by 
 her. Ct. App., 1874, Quinn v. Van Pelt, 56 N. Y. 
 (11 Sick.) 417 ; Rev'g S. C, 36 N. Y. Supr. (4 J. 
 & Sp.) 279. 
 
 140. In an action against an attorney for ne- 
 glecting to file a mortgage entrusted to him for 
 record until after a subsequent one has been 
 filed, only nominal damages can be recovered, 
 if the mortgage first recorded has, before the 
 action, been satisfied of record, and the client 
 has also, without any suspicion that such other 
 mortgage had been a prior lien, and without the 
 agency or intervention of such attorney, satisfied 
 the obligation secured by his own mortgage. N. 
 Y. C. P., 1870, Arnold v. Robertson, 3 Daly, 298. 
 
 141. Misconduct of officer. The measure 
 of recovery in an action by a party entitled to 
 road damages against a town supervisor, for his 
 refusal to present to the county board for allow- 
 ance a re-assessment thereof, made pursuant to 
 statute, is the amount of such re-assessment, 
 with interest ; and the plaintiff is not limited, in 
 his recovery of interest, to the period when he 
 might have had his claim presented to another 
 board for allowance, because he is not bound to 
 go to another board therefor. Com. App., 1874, 
 Clark V. Miller, 54 N. Y. (9 Sick.) 528. 
 
 142. Negligence. In an action to recover 
 damages to plaintiff's business of manufacturing 
 mustard, carried on in the lower part of a build- 
 ing, and to the mustard manufactured, caused 
 by the negligence of the defendant in permitting 
 injurious substances to leak through from the 
 upper rooms occupied by him, the plaintiff can- 
 not recover damages for the loss of customers, 
 whose names are not alleged, or their loss aver- 
 red as an item of special damage, in the com- 
 plaint, nor for a mere negligent omission can he 
 recover for the injury to the good will of his 
 business. N. Y. Supr. Ct., 1873, Stapenhorst r. 
 American Manuf. Co., 46 How. 510; S. C, 15 
 Abb. N. S. 355; 36 N. Y. Supr. (4 J. & Sp.) 392. 
 
 143. In an action for injury to goods of the 
 plaintiff caused by defendant's negligence, it is 
 
 error to allow the plaintiff to prove and recover 
 as part of his damages the amount of injury 
 from the same cause to goods in his store be- 
 longing to a co-occupant, and to which the 
 plaintiff had neither possession nor the right of 
 possession. N. Y. C. P., 1872, Brown v. Elliott, 
 45 How. 182 ; S. C, 4 Daly, 329. 
 
 144. Negligence in transmitting a tele- 
 gram asking that $500 be sent to a parly, where- 
 by it is made to read for $5,000, does not make 
 the telegraph company liable for the whole of 
 that sum in case it is wrongfully converted by 
 the person to whom it is sent in compliance with 
 the message, such loss not being the natural or 
 proximate consequence of the negligent act. Ct. 
 App., 1875, Loweiy v. Western U. Tel. Co., 60 N. 
 Y. (15 Sick.) 198. 
 
 145. Replevin. In an action for the recovery 
 of personal property which has a usable value, 
 the value of the use during the time of detention 
 is a proper item of damages. Com. App., 1873, 
 AlUn V. Fox, 51 N. Y. 562. 
 
 146. In an action to recover the possession of 
 chattels and damages for their detention, the 
 measure of the plaintiff's damages is the interest 
 on the value of the property while in the defend- 
 ant's possession, unless there is proof that its use 
 was of greater value than that, or that its value 
 depreciated during the interval. N. Y. Supr. Ct., 
 1875, Keep v. Kaufman, 38 N. Y. Supr. (6 J. & 
 Sp.) 476. 
 
 147. In replevin for a horse, where the prop- 
 erty is retained by the defendant pending the 
 suit, on security given, and no ground for exem- 
 plary damages is shown, if the plaintiff recovers, 
 he is entitled only to the actual damages for 
 detention, and cannot recover in addition thereto 
 for the use of the horse. Ordinarily, in such a 
 case, the measure of damages is the interest on 
 the value of the property from the time of the 
 taking to the time of the assessment Sup. Ct., 
 1871, Twinam v. Swart, 4 Lans. 268. 
 
 148. In an action to recover the possession of 
 personal property, the successful party is en- 
 titled, in case a return thereof cannot be had, to 
 the value at the time of trial. If the value has 
 been impaired during the detention, that should 
 be considered in the assessment of damages for 
 the detention. Ct. App., 1873, N. Y. Guaranty 
 and Indemnity Co. v. Flynn, 55 N. Y. (10 Sick.) 
 653 ; Aff'g S. C, 65 Barb. 866. 
 
 149. In an action for the recovery of posses- 
 sion of personal property, the finding as to value 
 should be limited to the value of the successful 
 party's interest in the property. Com. App., 
 1874, Townsend v. Bargy, 57 N. Y. (12 Sick.) 
 665. 
 
 150. In an action to recover the possession of 
 personal property, the jury in assessing the 
 value of the property should not go beyond 
 the amount stated in the complaint and included 
 in the issues of the action. If they do, the judg- 
 ment will be reversed on appeal. N. Y. Supr. 
 Ct., 1873, Tiedman v. O'Brien, 36 N. Y. Supr. (4 
 J. &Sp.) 589. 
 
 151. The expenses of the taking and removal 
 of the property by the sheriff, in an action of 
 replevin are not to be included in the damages 
 given for its detention, but they constitute a 
 part of the disbursements, and should be added 
 to the costs. Sup. Ct., 1875, Ymnq v. Atwood, 5 
 Hun, 234. ^ • ' H 
 
 152. Trespass de bonis. In an action by 
 a husband against one who induced the plaintiff's 
 wife to leave him, and aided her in carrying 
 away some of his goods clandestinely, to recover 
 damages for such taking and carrying away, 
 
DAMAGES— DAMAGE FEASANT. 
 
 241 
 
 the value of the goods exclusive of the wife's 
 wearing apparel would be the proper measure 
 of damages, if the property has not been re- 
 stored. Sup. Ct., 1871, Daiteyy. Crowley, 6 Lans. 
 301. 
 
 153. But where the husband has received 
 from the wife railroad cheeks for the prop- 
 erty, and has by his agent taken it into pos- 
 session, those facts should be considered in 
 mitigation of damages, and the plaintiff should 
 recover only the damages arising from the 
 taking, not the full value of the goods. lb. 
 
 154. 'Wrongful attachment. In an action 
 by an assignee for the benefit of creditors 
 against a sheriff, for wrongfully attaching a 
 stock of goods and taking exclusive possession 
 of tlie store in whicli they were, he may recover 
 the rent of the store while occupied by the sher- 
 iff, as part of his damages. Sup. Ct.,1876, Car- 
 man V. Kelly, 5 Hun. 283. 
 
 155. Wrongful use and. injury to prop- 
 erty. In an action for wrongfully and wilfully 
 taking and using the plaintifi's horse for several 
 days, tlie plaintiff may prove and recover as 
 damages the sum paid for the use of another 
 horse which he was compelled to hire for use in 
 his business, if reasonable, the value of the use 
 of the horse for the dajs when he did not hire a 
 substitute, and also damages for injuries to the 
 horse during the time he was detained. Sup. 
 Ct., 1873, Clinton v. Toimsend, 46 How. 42. 
 
 3. Injuries to real estate. 
 
 156. Bispossession of leased premises. 
 In an action to recover damages for the wrongful 
 dispossession of the plaintiff, by his landlord, 
 from premises held by him under an unexpired 
 lease, — Held, that he was entitled to recover for 
 all losses occasioned thereby, including the de- 
 struction of a building erected by him thereon, 
 the loss of money concealed by him therein, and 
 the value of the unexpired term. Although 
 such money was kept in an unusual place, and 
 the defendant may not have suspected its pres- 
 ence, yet he was liable for its loss as the direct 
 result of his acts. Ct. App., 1875, Eten v. Luys- 
 ter, 60S. Y. (15 Sick.) 252. 
 
 157. The measure of damages of a tenant, on 
 eviction, is the difference between the value 
 of the demised premises during the balance of 
 the term, and the rent reserved for the same pe- 
 riod, together with the cost of removal N. Y. 
 C. P., 1871, Drucker v. Simon, 4 Daly, 53. 
 
 158. In an action under the statute, for dam- 
 ages, by one ejected from demised premises in 
 summary proceedings before a justice of the 
 peace, the plaintiff can recover for the damage 
 to his property, but not for damage to his busi- 
 ness or for the loss of prospective profits. Com. 
 App., 1873, Hayden v. Florence Sewing Mnrhina 
 Co., 54 N. Y. (9 Sick.) 221. 
 
 159. A landlord, who unlawfully removes nis 
 tenant from the demised premises, is liable for 
 all damages resulting therefrom, whether occa- 
 sioned directly by his own act or by the act of 
 God. So h^ld, where the tenant's goods were of 
 a nature to be easily injured by water, and 
 were damaged by rain while in transit from the 
 demised premises to their destination. N. Y. 
 Supr. Ct., 1869, Newland v. Trevor, 2 Sweeny, 
 67. 
 
 160. Negligent injury to house. In an 
 action against a city to recover damages for in- 
 juries caused by the bursting of an insufficient 
 sewer and overflow of water, tlie rental value of 
 a building injured thereby for the time the | 
 
 16 
 
 owner was deprived of the use of it may be al- 
 lowed as an item of the damages. Ct. App., 
 1875, Nims v. Mayor, etc. of Troy, 59 N. Y. (14 
 Sick.) 500. 
 
 161. Nuisance. A plaintiff in an action for 
 a private nuisance can recover only such dam- 
 ages as he has sustained before bringing his ac- 
 tion. A recovery for diminution in value of his 
 property on the assumption that the nuisance is 
 to continue forever is inadmissible. Snp. Ct., 
 1875, Whitmore v. Bischoff, 5 Hun, 176. 
 
 162. In an action for damages caused by a 
 nuisance, alleged to have rendered the plaintiff's 
 premises disagreeable and uncomfortable, the 
 measure of recovery should be the difference of 
 the rental value free from and subject to the 
 nuisance. Ct. App., 1873, Francis v. SchoeUkopf, 
 53N. Y. (8 Sick.) 152. 
 
 163. Removal of fence. In an action against 
 commissioners of highways to recover damages 
 for their unlawful removal of a fence, claimed 
 to be an encroachment on a highway, the plain- 
 tiff is entitled to recover such sum as will, prop- 
 erly expended, restore the premises to their pre- 
 vious condition. Sup. Ct., Sp. T., 1872, Marvin 
 V. Pardee, 64 Barb. 353. 
 
 164. Sale of land conveyed as security. 
 Where one to whom lands have been conveyed 
 by deed absolute in form, but in fact as security 
 for the payment of a debt, without the consent 
 of the debtor conveys the same to a bona fide 
 purchaser, he is bound to account to such debtor 
 at the election of the latter, either for the pro- 
 ceeds of the sale of the land, or its value at the 
 time when the right to such reparation is estab- 
 lished. Ct. App., 1873, Meehan v. Forrester, 62 
 N. Y. (7 Sick.) 277. 
 
 165. Trespass. In an action for a trespass 
 in cutting and removing timber from plaintiff's 
 land, where it appeared that it was committed 
 through carelessness and not through malice, 
 and that part of the timber was removed by the 
 defendant and the rest accidentally destroyed by 
 fire, — Beld, that the defendant was liable for the 
 trees cut and destroyed by him. Sup. Ct., 1874, 
 Skinner v. Wheeler, 2 Hun, 698. 
 
 166. Whether he was also liable for that de- 
 stroyed by fire, query f lb. 
 
 167. The measure of damages for cutting and 
 removing standing timber, is the value of the 
 timber where it stood when cut ; or, in an ac- 
 tion, under tlie statute (2 R S. 338, sec. 1 ; 2 
 Edm. Stats. 349), treble that amount. Sup. Ct., 
 1875, Stanton v. Pritchard, 4 Hun, 266. 
 
 168. Trespass by cattle. In an action for 
 damages done by cattle trespassing on plaintiff's 
 premises, and for defendant's taking the cattle 
 out of plaintiff's possession after he had them in 
 his custody, as permitted by chapter 489, Laws 
 1862, the plaintiff is not entitled to recover as 
 damages the 50 cents per head for the animals re- 
 taken, which he would have been entitled to had 
 he pursued his remedy under that statute, in 
 addition to the injury to his crops; his right to 
 the penalty not being complete until the sale, 
 and being subject to reduction upon the owner's 
 appearing and paying before sale. Sup. Ct., 
 1872, Hickox V. Thurstin, 7 Lans. 421. 
 
 DAMAGE FEASANT. 
 See Cattle in Highways. 
 
242 
 
 DAMS— DEED. 
 
 DAMS. 
 See Watebcoubsb. 
 
 DAYS OF GRACE. 
 See Bills and Notes. 
 
 DEATH CAUSED BY NEGLIGENCE. 
 See Neglioence. 
 
 DEBTOES. 
 See Insolvent Debiobs. 
 
 DECEIT. 
 
 1. Knowledge of falsity. An action 
 founded on the deceit and fraud of the defend- 
 ant cannot be sustained without proof, either 
 that he believed or had reason to believe, at tlie 
 time he made the representations, that they were 
 false, and therefore fraudulently made them, or 
 that he assumed or intended to convey the im- 
 pression that he had actual knowledge of their 
 truth, though conscious that he had no such 
 knowledge. Sup. Ct., 1874, Indianapolis, Peru ^ 
 Chi. R. R. Co. V. Tyng, 48 How. 193 ; S. C, 2 
 Hun, 311. 
 
 See Fbaud. 
 
 DECLARATION. 
 See Evidence ; Pleading. 
 
 DECREE. 
 See Judgment ; Pbactioe. 
 
 DEDICATION. 
 
 1. Bounding on railroad Where the use 
 of lands has been taken by a railroad company, 
 subsequent conveyances by owners of adjoining 
 lands bounding them by the side of such rail- 
 road, executed while the lands are in the use of 
 the company, without covenants that upon the 
 termination of such use the lands shall be thrown 
 open as a public street, do not operate as a dedi- 
 cation thereof to the public, nor in any way im- 
 pair or affect the owner's title. Ct. App., 1875, 
 Heard V. City of Brooklyn, 60 N. Y. (15 Sick.) 242. 
 
 2. Bounding on street. A conveyance of 
 lots by the owner, bounding them by the cen- 
 tral lines of a street named, subject to a right of 
 way over a portion of such street thereby con- 
 veyed to another, such street being laid down 
 on a map of the city which had been filed, 
 though no legal proceedings had ever been taken 
 to open it, — ilild to constitute a dedication of 
 the land covered by such street to the use of the 
 
 ?nbric as a street. Sup. Ct., 1875, In matter of 
 ngraham, 4 Hun, 495 ; Aff'd by Ct App. 
 8. The subsequent use of such street by the 
 general public as a highway for the passage of 
 vehicles of various kinds, and for foot passen- 
 gers ; and the laying of gas and water pipes in 
 it by the city, and lighting it with gas, for sev- 
 eral years, constitute an acceptance of the dedi- 
 cation; and render the street subject to the 
 power of the municipal authorities to regulate, 
 grade, ani improve it, and the adjoining own- 
 ers liable to burdens for improvements thereof, 
 the same as if it had been opened by formal 
 proceedings for that purpose. lb. 
 
 4. To constitute a dedication of a portion of 
 land for the purposes of a street or avenue, by 
 a conveyance of the lot from which it is to be 
 taken, bounding it on a street or avenue by 
 name, there must be a street or avenue actually 
 laid out to which such description refers, and an 
 intention to dedicate must be clearly inferable 
 from the facts of the case. Sup. Ct., Sp. T., 
 1875, In matter of opening Eleventh Avenue, 49 
 How. 208. 
 
 5. The sale of land in a city, by the -owner 
 thereof. In lots and parcels bounded on a street, 
 and by reference to a map made and filed show- 
 ing such street running between lots so sold, 
 does not alone constitute a dedication of such 
 street, without reference to its acceptance by 
 the public. N. Y. C. P., 1874, Grinnell v. Kirt- 
 land, 48 How. 17. 
 
 6. Where the deeds of such lots specially re- 
 serve to the grantor, her heirs and assigns, a 
 sufficient right of way through and along such 
 street, for all lawful purposes, to use the same 
 as a public road, they do not show an unequiv- 
 ocal intent to dedicate such street and have it 
 opened at once, whether accepted by the public 
 or not ; and where the grantees continue to use 
 the road reserved for more than 20 years with- 
 out applying to have the street opened, that 
 fact shows that they understood that the dedi- 
 cation was conditional. lb. 
 
 7. Plat. Where owners of land in a village 
 make and file a map of it, laying out lots and a 
 street thereon, and sell lots upon and with ref- 
 erence to such street, and the village authori- 
 ties afterward declare it open, and it is worked, 
 except a small portion which is left open and 
 used by the public, there is a valid dedication 
 and acceptance of such street through its whole 
 extent. Sup. Ct., 1871, Niagara Falls Suspension 
 Bridge Co. v. Bachman, 4 Lans. 523. 
 
 8. Where an owner of lands in a village causes 
 them to be mapped and laid out into village lots, 
 with streets and avenues, and subsequently con- 
 veys lots fronting on a designated street, with a 
 provision in the deeds that, where any of the 
 lands joined a street, the line is to extend to the 
 centre of the street, as between him and his 
 grantee, his conveyance is, per se, a dedica- 
 tion of the street to the use of such grantee as 
 a street, and the latter can maintain an action 
 against him to compel him to remove obstruc- 
 tions from such street. Sup. Ct, 1874, Taylor 
 V. ffepper, 2 Hun, 646. 
 
 DEED 
 
 L EXECITTION AND DELIVEBT 243 
 
 H. Paeties ;. 248 
 
 III. CONBTBUCTION ; VALIDITY 243 
 
 IV. Description op the land 245 
 
 V. Estate conveyed ; Appuetenances. 247 
 
DEED. 
 
 243 
 
 VI. Title bt estoppel 248 
 
 VII. Conditions ; bxcbptions abd kes- 
 
 EKVATIONS 249 
 
 Vm. Becosding, epfbot of 249 
 
 I. Execution and deliveet. 
 
 1. Acknowledgment by married wo- 
 man. The provision of sec. 3, oh. 875, Laws of 
 1849, that any married woman may conyey her 
 real estate " in the same manner and with like 
 effect as if she were unmarried," in effect repeals, 
 as to the separate estates of married women, 
 the provision of the Revised Statutes requiring 
 a private examination apart from their husbands, 
 upon their acknowledgement of the execution of 
 conveyances. Sup. Ct., 1870, Richardson v. Pul- 
 ver, 63 Barb. 67. And that provision is not 
 affected by the acts of 1860 and 1862, relatjjre 
 to the rights of married women. N. Y. Supr. Ct., 
 
 1873, AUen v. Reynolds, 36 N. Y. Supr. (4 J. & 
 Sp.) 297. 
 
 2. Where, by the provisions of a deed to a 
 trustee in trust for the benefit of a married 
 woman, he is authorized to convey to such per- 
 son or persons as she "by an instrument in wri- 
 ting, under her hand and seal, duly acknowl- 
 edged by her, shall constitute and appoint to 
 receive such conveyance," such married woman 
 may execute an instrument desiring the trustee 
 to convey to herself, and an acknowledgement 
 thereof in the usual form, without any private 
 examination, is valid under the act of 1849. 
 Richardson v. Pulver, 63 Barb. 67. 
 
 3. Assent. If a wife, who has signed a deed, 
 makes no reply to questions put to her by the 
 oiScer taking the acknowledgment as to the deed 
 having been executed by her freely, her assent 
 may be implied from her silence. Sup. Ct., 1872, 
 Rexford v. Rex/ord, 7 Lans. 6. 
 
 4. Knovrledge by officer. An introduction 
 of a woman to the officer taking the acknowl- 
 edgment of a deed as the wife of the grantor, 
 made by such grantor in the presence of his 
 brother, both known to the officer, is sufficient 
 ground for the officer's certificate of knowledge 
 of the grantors ; though, if he was mistaken, 
 the deed might be avoided. lb. 
 
 5. A certificate of acknowledgment to a deed, 
 need not state in so many words that the iden- 
 tity of the person acknowledging was satisfac- 
 torily proved to the officer before whom it was 
 made; but it is sufficient if the facts recited 
 show that such evidence was produced. Ct. App., 
 
 1874, Ritter v. Worth, 58 N. Y. (18 Sick.) 627. 
 
 6. Delivery. Where a father purchased a 
 house and lot, and without any request from his 
 daughter, or intimation of his intention to her, 
 had the deed made to her, and receiving it him- 
 self afterward told her of it, and, at her request, 
 promised to put it on record ; — Held, that the 
 delivery to him was for her, and vested the title 
 in her. Sup. Ct., 1873, Shrader v. Bouker, 65 
 Barb. 608. 
 
 7. Held, also, that the conveyance was an 
 advancement to the daughter; and in such a 
 case the title passes, although the deed may be 
 retained by the grantor, unless it clearly ap- 
 pears tliat there was an intention that it should 
 not pass until actual delivery. lb. 
 
 8. — conditionaL Where a deed by husband 
 and wife is put into the hands of the husband of 
 the grantee, upon condition that such grantee 
 shall reconvey to the grantor's wife, but the 
 grantee retains the deed and refuses to recon- 
 vey, no title passes, and the deed never becomes 
 operative by reason of the non-performance of 
 
 the condition. Sup. Ct., 1878, Pendleton v. 
 Hughes, 65 Barb. 136. 
 
 9. In escrow. The condition upon which a 
 deed is placed in escrow may be expressed in 
 writing, or rest in parol, or be part in writing 
 and part oral. Ct. App., 1874, Stanton v. Miller, 
 58 N. Y. (13 Sick.) 192 ; Rev'g. S. C, 65 Barb. 58. 
 
 10. The person depositing such deed in escrow 
 may annex any condition he pleases to the de- 
 livery to the grantees, and reserve the dominion 
 over it, or the right to withdraw it at any time 
 from the possession of the depositary. lb. 
 
 11. The acceptance of a deed by the 
 grantee will not he presumed from the mere 
 fact of its being made and recorded by others, 
 without his sanction. Sup. Ct, 1875, Day v. 
 Mooney, 4 Hun, 134. 
 
 n. Paeties. 
 
 12. Feme covert. A deed of a feme covert 
 executed by attorney, under letter of attorney, 
 prior to the year 1771, is void. The defect was 
 not cured by the " act to confirm certain ancient 
 conveyances," &c., passed February 16, 1771 
 (2 Van Schaick, 611), or the act amendatory 
 thereof passed in March, 1773 (2 Van Schaick, 
 765), the latter act giving effect only to such 
 deeds executed after the passage of the former 
 act. Ct App., 1871, Hardenburgh v. Lakin, 47 
 N. Y. (2 Sick.) 109. 
 
 13. Husband and wife. A voluntary con- 
 veyance from a husband to his wife intended to 
 take effect as a gift in presenti, though void at 
 law, may be enforced in equity. Com. App., 
 1870, Hunt V. Johnson, 44 N. Y. (5 Hand,) 27. 
 
 14. Natural love and affection, and the duty 
 of the husband to furnish a suitable support for 
 the wife, are a meritorious consideration, suffi- 
 cient in equity to support such a deed ; and the 
 rule is not limited to deeds expressed to be for 
 the wife's maintenance and support lb. 
 
 16. By referee. A deed by a referee, ap- 
 pointed by a court of equity on setting aside a 
 conveyance as fraudulent against creditors, ex- 
 ecuted to a purchaser upon a sale by him at 
 public auction, in pursuance of the decree of the 
 court, conveys no title ; because the court has 
 no power to authorize a referee to sell. Sup. Ct, 
 1873, Dawley v. Brown, 65 Barb. 107. 
 
 in. Construction; validitt. 
 
 16. Intent. A deed should be so construed 
 as, if possible, to give effect to all its words and 
 provisions ; but the construction should be on 
 the whole instrument, and such as, if possible, to 
 give effect to the intention of the parties, even at 
 the sacrifice of particular words. N. Y. Supr. 
 Ct, 1870, Tucker v. Meeks,2 Sweeny, 786 ; Aff'd, 
 S. C, 52 N. Y. (7 Sick.) 688. 
 
 17. A deed conveying an estate in common to 
 a trustee, in trust to let the same and pay the 
 rent or proceeds to a cestui que trust named, which 
 directs such trustee to make and deliver any 
 "deed or deeds of conveyance or partition" as 
 the said cestui que trust may direct, and upon her 
 death, to convey the trust estate to her children 
 in equal shares, declaring the intention to be 
 that the said cestui que trust shall receive the 
 interest or income of the estate during Iier life, 
 and that the principal thereof remaining after her 
 death shall go and belong to her said children ; 
 — Held, to convey to her only an estate for life, 
 without any power of sale which would prejudice 
 the rights of her children to the whole after her 
 death. lb. 
 
244 
 
 DEED. 
 
 18. Prior and subsequent clauses. The 
 
 doctrine tliat a subsequent clause, which is re- 
 pugnant to a prior one, in a deed, is void, has 
 application only to those cases where the sub- 
 sequent clause would prevent a previous grant, 
 made in such clear and unmistakable terms as to 
 leave no room for construction, from operating 
 to pass the property, estate, or right so granted. 
 N. Y. Supr. Ct., 1870, Tucker v. Meehs, 2 Sweeny, 
 736 ; Affd, S. C, 52 N. Y. (7 Sick.) 638. 
 
 19. Present conveyance. An instrument 
 in these words : "I hereby give, bequeath, trans- 
 fer, and set over to my wife," certain lands de- 
 scribed, " and also bind myself to execute to my 
 said wife a good and proper deed " thereof as 
 soon as prepared by a competent person, — Held, 
 to be a valid executed deed, and not an execu- 
 tory contract. Com. App., 1870, Hunt v. John- 
 son, 44 N. Y. (5 Hand,) 27. 
 
 20. Privilege to draw -water. A grant of 
 lands, with the privilege of drawing sufficient 
 water from the dam of the grantor to prop'el cer- 
 tain machinery on the premises granted, must 
 be construed as a grant absolute of the quan- 
 tity of water specified, and not as a limitation of 
 the use to the particular machinery ; and the 
 grantee may use it for other purposes, providing 
 he does not exceed the measure specified. Ct. 
 App., 1871, Comstock v. Johnson, 46 N. Y. (1 
 Sick.) 615. 
 
 21. A conveyance of real estate, " together 
 witli the right to draw water from the race and 
 pond sufficient for propelling four 300-pound en- 
 gines, with all the machinery necessary for mak- 
 ing paper from the same," entitles the grantee 
 to the quantity of water reasonably necessary 
 to carry on and operate such machinery at all 
 seasons of the year, and in the state and condi- 
 tion in which such machinery existed at the 
 time of the grant ; and his right to such quan- 
 tity is not affected by subsequent improvements 
 or changes made to lessen the quantity of water 
 necessary for the purposes named. Sup. Ct., 
 1874, Griswold v. Eodgman, 2 Hun, 97. 
 
 22. A grant of " 375 inches of water under 
 thirteen feet head," to be taken " at all times 
 when there shall be so much water in the race 
 more than shall be necessary to drive advan- 
 tageously " certain machinery and mills named, — 
 Held, to confer upon the grantee the privilege 
 of taking a quantity of water, such as would 
 pass through a space of 375 inches, under the 
 pressure of thirteen feet, and that he was entitled 
 to that amount over and above what was neces- 
 sary to drive the machinery and mills specified, 
 and not simply what would be left thereof after 
 deducting the amount actually used for those 
 purposes. Allen, J., dissents. Ct. App., 1874, 
 Torrance v. Conger, 55 N. Y. (10 Sick.) 680; 
 overruling opinion of Eapbllo, J., in S. C, 46 N. 
 Y. (1 Sick.) 340. 
 
 23. Right of way. Where the owner of 
 land lying in the rear and on one side of a church 
 lot, on being applied to for the sale of part of it 
 to the church, refused to sell without reserving 
 a right of way from the land retained to the 
 highway, and the consistory of the church in 
 pursuance of a resolution of the church, received 
 a deed from him of such land, and at the same 
 time gave him a deed of a right of way across 
 the land previously owned by the church, with- 
 out first obtaining leave of court to sell, — Held, 
 that the two deeds must be construed together, 
 and so construed, the grantor of the land must 
 be deemed to have reserved a right of way over 
 the land conveyed to him, if none was secured 
 by the deed from the consistory ; and, even if 
 
 that was to be deemed invalid, his occupation of 
 the right of way thereby conveyed could only 
 be disturbed on giving him a right of way over 
 the land conveyed by him. Sup. Ct., 1875, Prot. 
 Beform Dutch Church of Jtosendale v. Bogardus, 5 
 Hun, 304. 
 
 24. Special agreement. Where, in view of 
 the division of real estate held by three brothers, 
 D, G, and A, as tenants in common, G and A, on 
 the 21st of April, executed an agreement under 
 seal whereby G agreed that his share should re- 
 main with A's share undivided, constituting A 
 his attorney to take and receive his portion of 
 the real estate, that A should take the charge of 
 the two undivided shares of the real estate, 
 should receive G's share of the personal estate, 
 and " the charge, direction, use, and income of 
 said estate" should belong to " A, his heirs, ex- 
 ecutors or administrators, or assignees, forever," 
 and in consideration thereof A agreed to give 6 
 a home with himself and to support him ; but G 
 reserved the right in case of his own marriage or 
 of ill-usage on the part of A, to have his portion 
 set off, and to resume control of it, and agreed 
 that he would not at any time revoke the power 
 of attorney save for one of those causes, and 
 also reserved the right to devise his estate as he 
 chose, — Held, that such instrument was a suf- 
 ficient conveyance, and conveyed to A an estate 
 in fee, subject to be defeated by G's resuming 
 his estate for one of the causes mentioned ; and 
 that, upon the death of G intestate, A having 
 performed on his part, took under it an absolute 
 title. Cora. App., 1874, Mott v. Rightmyer, 57 N. 
 Y. (12 Sick.) 49. 
 
 25. An instrument executed on the following 
 7th of May, between the same parties, whereby 
 a specified tract of land was agreed to be set off 
 as G's share, and a sum of money to make their 
 shares equal, was to be awarded him to be paid 
 by A, but to remain in A's hands with G's share 
 of the personal estate, out of which farm build- 
 ings were to be erected on his land, if he should 
 give notice of a desire to seek a new home. Held, 
 to modify the former agreement, but not to 
 work a reconveyance. lb. 
 
 26. A quit claim deed, executed by G to A on 
 the following 11th of May, whereby he conveyed 
 to " A, his heirs and assigns forever," the tract 
 so set off, " to have and to hold — ^in trust for the 
 purpose of securing " to 6 a " good comfortable 
 living and maintenance under contingencies of 
 sickness, infirmities, and old age ; " — Held, not 
 to create a trust, but to convey the fee simple, 
 charged with the condition that the grantee sup- 
 port the grantor ; and the condition being dis- 
 charged, the land became A's freed from any 
 charge or trust upon the death of the grantor. lb. 
 
 27. Such three instruments were not so nearly 
 cotemporaneous as that they must be all con- 
 strued together, yet, if they are so construed, 
 the result will be the same. lb. 
 
 28. Of water for special purpose. A 
 grant of land below the grantor's mill pond, for 
 the purpose of having a tannery built and oper- 
 ated thereon, " together with the privilege of 
 digging a channel — and turning the water from 
 the mill race therein — and drawing therefrom 
 water enough to supply a steam engine for the 
 use of the tannery; and also for soaking hides, 
 wetting leather, for pumping on leaches, and 
 carrying away the spent bark," gives the grantee 
 an irrevocable right to discharge all the spent 
 bark of the tannery into the stream of water to 
 be drawn from the mill race, and have it re- 
 moved by that means from the premises. Sup. 
 Ct., 1872, Winchester v. Osham, 62 Barb. 837. 
 
DEED. 
 
 245 
 
 29. Such grant is clearly a grant of the right, 
 as against the grantor, to produce whatever ef- 
 fect or consequence may naturally or necessarily 
 result from the use of the right so granted ; and, 
 consequently, the grantee would not be liable 
 for damages to the grantor, by reason of the 
 tan bark lodging in and obstructing the channel, 
 and causing the water to set hack upon his mill, 
 lb. • 
 
 30. Validity — not ackno-wledged or wit- 
 neased. An instrument in writing, purporting 
 to convey real estate, but not acknowledged nor 
 attested by a subscribing witness, as required by 
 law, is insufficient as a conveyance, and void as 
 against a purchaser or incumbrancer. Sup. Ct., 
 1872, Roggen v. Avery, 63 Barb. 66. 
 
 31. ITot sealed. A writing, not under seal, 
 though subscribed by the party purporting to 
 convey, is, under 1 E. S., 738, sec. 837, inopera- 
 tive and ineffectual to pass the title to real 
 estate. Com. App., 1872, Morss v. Salisbury, 48 
 N. Y. (3 Sick.) 636. 
 
 32. Duress. In order to authorize a court to 
 declare a deed executed by husband and wife 
 invalid as to the wife, on the ground that its 
 execution was procured by duress of her hus- 
 band, the evidence of duress should be strong 
 and clear. Sup. Ct, 1872, Rexford v. Bexford, 7 
 Lans. 6. 
 
 33. Threats made by the husband and com- 
 municated to the wife, sometime prior to her 
 signing a deed, by which she conveyed her in- 
 choate right of dower, that if she -did not sign it 
 she should never live in peace with him, do not 
 constitute such duress as to invalidate her deed. 
 lb. 
 
 34. Incapacity of grantor. A deed exe- 
 cuted by husband and wife when the husband 
 is unsound in mind, is void, and does not pass 
 even 'the wife's inchoate right of dower. Sup. 
 Ct., 1871, Marvin v. Lewis, 61 Barb. 49. 
 
 35. In an action to set aside such deed, tlie 
 court cannot, on declaring it void, treat it as 
 valid so far as to impose as a condition the re- 
 payment of the value of the dower interest of 
 the grantor's wife, or of the amount paid by the 
 occupant for taxes and assessments. lb. 
 
 36. Lands adversely possessed. Posses- 
 sion by the grantee, of lands described in a deed, 
 executed by a married woman witliout the 
 written consent of her husband, while the act of 
 1860 (ch. 90, Laws of 1860) was in force, is an 
 adverse holding, sufficient to render void a sub- 
 sequent deed of the same lands executed by 
 husband and wife to a third party. Com. App., 
 1872, Schott V. Schwartz, 48 N. Y. (3 Sick.) 666. 
 
 37. The entry by a railroad company upon, 
 and use of a highway, under license from tlie 
 legislature, is -presumed to be in subordination 
 to the rights of the owner of the soil ; so that a 
 deed executed by him during such occupation 
 will not be void, as of lands adversely possessed. 
 Ct. App., 1873, Broiestedt v. South Side Railroad 
 Co. of Long Island, 55 N. Y. (10 Sick.) 220. 
 
 38. Cancellation in equity. A court of 
 equity will not exercise its jurisdiction to set 
 aside a deed on the ground of the insanity of 
 the grantor, or of undue influence, except upon 
 equitable terms, and when it can at the same 
 time do justice to the defendant. Sup. Ct., 1872, 
 Canjkldy. Fairbanks, 63 Barb. 461. 
 
 4. Description of Land 
 
 89. Bounded by alley. If owners of lands, 
 after having caused them to be surveyed and 
 sub-divided into lots for village purposes, and a 
 
 map thereof to be made and filed in the county 
 clerk's office, on w^iich the lots are designated 
 by numbers and laid down as abutting on a 
 strip of land designated as " South Alley," con- 
 vey some of such lots by deeds, describing them 
 by their numbers as laid down on such map, 
 with the appurtenances, and bounding them on 
 one side ''along the north line of South Alley," 
 such deeds give the grantee a right of way over 
 the alley in the rear of his lots, as appurtenant 
 to his lots, as against the grantors and tlieir sub- 
 sequent grantee of the alley, and they cannot 
 enclose it so as to exclude him therefrom. Sup. 
 Ct, 1869, Cox V. James, 59 Barb. 144 ; Aff'd, S. 
 C, 45 N. Y. (6 Hand,) 557. 
 
 40. Bounded by high-way. Where a deed 
 describes the land conveyed as bounded on one 
 side by a line " running along the easterly " 
 side of a certain highway, — Held, the title did 
 not pass to the center, but only to the east 
 line of such highway. N. Y. C. P., 1873, Fearing 
 V. Irwin, 4 Daly, 385. 
 
 41. Bounded by street. If a street as an en- 
 tirety is stated to be the boundary, as distinguish- 
 ed from a side of it, the land goes to the centre 
 of such street N. Y. Supr. Ct., 1874, Miner v. 
 Mayor, etc. of N. Y., 37 N. Y. Supr. (5 J. &Sp.) 
 171. 
 
 42. A deed describing a lot as bounded on the 
 west by the east line of Clyde street, " conveys 
 to the grantee no title, nor right of possession 
 beyond the line of the street Ct App., 1872, 
 Wallace v. Fee, 50 N. Y. (5 Sick.) 694. 
 
 43. But where the north half of a dwelling, 
 standing partly upon the north and partly upon 
 the south half of a lot, was conveyed with such 
 north half by deed, describing it as " fronting 
 upon Clyde street," and conveying also the land 
 on which it stood, " with appurtenances," &c., 
 while another deed conveyed to the grantee 
 therein the south half of the lot, excepting the 
 land on which said north half of the building 
 stood, — Held, that the first-mentioned deed car- 
 ried to the centre of the street, as well in front 
 of the north half of the dwelling as of the lot, 
 and to that portion of the street the grantee of 
 the second deed had neither right nor title. lb. 
 
 44. A conveyance bounding the land upon the 
 southeasterly line or side " of an avenue named, 
 which had never been opened as a public high- 
 way, and had been discontinued by the legisla- 
 ture, and further conveying " all the right and 
 title of the grantor, in, and to one-half of the 
 streets and avenues by which such lands were 
 bounded, there being no other avenues referred 
 to in the description, and the grantor having 
 title to that one, — Held, to carry the title to the 
 centre of the discontinued avenue. Ct. App., 
 1872, Terrett v. New York and Brooklyn S. S. 
 S. S. and L. Co., 49 N. Y. (4 Sick.) 666. 
 
 45. A deed conveying land described as 
 " beginning at the southwesterly corner of F and 
 C avenues, running thence westerly along F 
 avenue twenty-five feet ; thence southerly at 
 right angles to F avenue, 79 feet to a point dis- 
 tant 47 feet westerly from the west side of C 
 avenue," does not convey the grantor's interest 
 in the street, but merely conveys to the street 
 Une. Ct, App., 1875, English v. Brennan, 60 
 N, Y. (15 Sick.) 609. 
 
 46. Bounded on stream. A deed describ- 
 ed the land conveyed as " beginning at a point 
 on the west bank of Mill creek, thence following 
 said west bank on a general course of north, 
 4° 24' west," &c.,—Held, tliat this carried the 
 land to low water mark ; and that although a 
 survey, according to the courses and distances 
 
246 
 
 DEED. 
 
 specified in the deed, would not carry the grantee 
 so far, these must yield to the stream as a nat- 
 ural monument. Ct. App., 1874, Yates v. Van- 
 De Bogert, 56 N. Y. (11 Sick.) 526. 
 
 47. — by high-'water mark. Where a deed 
 conveyed land described as bounded on one side 
 by the " high-water mark " of a certain artifi- 
 cial mill-pond, — Held, that the line thus given 
 was a fixed and permanenj one, and did not fol- 
 low the changes in the high-water mark of the 
 pond ; and that the grantee could not, therefore, 
 claim any accretions or land left dry by a reces- 
 sion of the water, although the gradual and im- 
 perceptible result of natural causes. Ct. App., 
 1874, Cook V. McClure, 58 N. Y. (13 Sick.) 437. 
 
 48. Governing calls. A permanent and 
 visible monument referred to in a deed, will 
 control courses and distances ; but when such 
 monument cannot be found, or its location or 
 existence be proved, effect must be given to the 
 other calls, and the lands be located by other 
 parts of the description. Ct. App., 1871, Drew 
 V. Swift, 46 N. Y. (1 Sick.) 204. 
 
 49. A line described in a deed as running 
 from one monument to another, without further 
 description, is to be presumed to be a straight 
 line. Sup. Ct., 1872, Kingsland v. Chittenden, 6 
 Lans. 15. 
 
 50. The rule that a grant of land, bound- 
 ed on a stream or pond, extends to the cen- 
 tre of the course or channel thereof, applies 
 only where the grant is in terms bounded on 
 the stream or pond generally, and Is not appli- 
 cable to a grant bounded by a line running from 
 the centre of a pond to a fixed monument; 
 the presumption as to such an intent in the 
 grantor being repelled by the language of the 
 grant. lb. 
 
 51. Where a conveyance describes a parcel of 
 land by courses and distances, and also by the 
 number by which the lot is said to be known, 
 the former description will control in preference 
 to the latter. Sup. Ct., 1872, TTiomson v, Wilcox, 
 7 Lans. 376. S. P., Burnett v. Wadsworth, 67 N. 
 Y. (12 Sick.) 634. 
 
 62. Practical location. To establish a 
 practical location different from that described 
 by known boundaries in a deed, there must be 
 either a location which has been acquiesced in 
 for a sufficient length of time to bar a right of 
 entry under the statute ; or the erroneous line 
 must have been agreed upon between the parties 
 claiming to own on each side thereof ; or the 
 party whose right is to be thus barred must have 
 looked silently on and seen the other do acts or 
 incur expenses in relation to the land on the op- 
 posite side of the line, which he would not 
 have done if the line had not been located, 
 and which would be an injury to him ; in 
 which case perhaps a grant might be pre- 
 sumed within 20 years. N. Y. Supr. Ct., 
 1874, Miner v. Mayor, etc. of New York, 37 N. Y. 
 Supr. (6 J. &Sp.)'l71. 
 
 53. In case a boundary line is fairly disputed, 
 and the adjoining owners settle upon a line as a 
 boundary between their lands and acquiesce in 
 it, their acts, agreement and acquiescence are 
 evidence as to the true boundary line ; and 
 such acquiescence for a suflSciently long time, it 
 may be less than 20 years, is considered 
 conclusive evidence that it is so. lb. 
 
 54. Such a settlement of a boundary line, 
 where equivalents of fceneflts or advantage are 
 mutually received and acted on, bind the par- 
 ties, not by way of transferring title, but by way 
 of estoppel. lb. 
 
 66. Mere silent acquiescence in an adverse 
 
 possession according to an erroneous line, is 
 no bar till it has continued for 20 years, 
 although in a proper case it may be left to a 
 jury to infer a grant. lb. 
 
 56. Where there is no uncertainty as to the 
 true boundary line, a mistake of ■ an owner in 
 pointing out an erroneous line as the boundary 
 of his property, or asserting it to be the true 
 line, is not conclusive upon him.* lb. 
 
 57. Where there has been no uncertainty of 
 boundaries or of location, and possession has 
 been transmitted by a grantor to a grantee 
 under a deed, a parol agreement between them 
 that the land conveyed shall be deemed to be in 
 another place, is wholly ineffectual. lb. 
 
 58. The owner of a lot in a city, bounded on 
 the north by an old street, and on the south by 
 a street laid out but not opened, owns to the 
 centre line of each of such streets, and if such 
 streets are afterward taken up and new ones 
 laid out nearly the full width of the streets north 
 of such old streets, and the owner of the lot 
 makes an exchange with the city of the land 
 cut off by the new street on the south for the 
 land previously occupied by the old street on 
 the north, nothing being said about such own- 
 er's right to the part of the vacated street 
 lying south of the southern street, belonging to 
 him, he cannot be deemed thereby to have ac- 
 quiesced in such new street as his southern 
 boundary, and to have relinquished the strip 
 lying south of it. lb. 
 
 69. The title to such strip would not pass to 
 the city except by actual adverse possession for 
 20 years ; and the fact that the owner disclaimed 
 title would not affect it. lb. 
 
 60. Where owners of adjoining lands claim 
 under deeds, which they suppose take them to a 
 certain existing fence, as the boundary between 
 them, and each in good faith occupies up to 
 such fence, claiming adversely for 20 years, 
 that is sufficient to establish the fence as the 
 line between them, although it differs from the 
 true line as ascertained by survey. Sup. Ct., 
 1873, Robinson v. Phillips, 68 Barb. 418; Aff'd, 
 S. C, 66 N. Y. (11 Sick.) 634. 
 
 61. Mere doubts expressed by one of the par- 
 ties as to its being the true line, or loose verbal 
 claims made by him, do not prevent the effect of 
 such occupation. lb. 
 
 62. Where for more than 40 years the 
 lots of adjoining owners had been separated by 
 a partition fence on a particular line, and for 
 more than 30 years the owners had used and 
 cultivated their lands up to the fence on each 
 side, when one of them moved the fence two 
 feet on to the lot occupied by the other, and the 
 latter, three years afterward, moved it back 
 to its original place, and recovered damages 
 against the former, — Held, that the title to the 
 two feet strip had become established by pos- 
 session. Sup. Ct., 1874, Du Fort v. Conroy, 1 
 Hun, 609. 
 
 63. Where two heirsat-law of real estate un- 
 dertook to partition it between them so as to 
 to give the one a mill and mill pond with the 
 appurtenances and water privileges, and the 
 other the farming lands, and executed to each 
 other quit-claim deeds, but by a mistake of the 
 surveyor, a portion of the farming lands was 
 conveyed to the former, which mistake was not 
 discovered until 23 years afterward, the latter 
 party having, during all that time, openly and 
 notoriously kept it enclosed, occupied and culti- 
 vated as a part of his farm, claiming title 
 thereto, — Held, that there was an actual and 
 practical location of the boundaries, and adverse 
 
DEED. 
 
 247 
 
 occupation, which was a good defense to an ac- 
 tion of ejectment. Sup. Ct., 1873, Cramer v. 
 Benton, 64 Barb. 522. 
 
 V. Estate conveyed; appuetbnancbs. 
 
 64. Appurtenances. Parties to a deed are 
 presumed to contract with reference to tlie con- 
 dition of the property, not solely as it would 
 appear to a stranger, but as it is known to be 
 by them ; and where a deed is executed pursu- 
 ant to a previous contract for the purchase of 
 the property, it will relate back to the date of 
 the contract, and is to be construed in refer- 
 ence to that time and the practical incidents 
 then belonging to the grantor. Ct. App., 1871, 
 Simmons v. Cloonan, 47 N. Y. (2 Sick.) 3. 
 
 65. Where the owner of an entire estate 
 granted a portion of it including a building 
 known as the " old mill," to another, with the 
 privilege of drawing water from a reservoir on 
 another portion to supply such " old mill," such 
 privilege to revert in case the old mill was 
 abandoned ; and subsequently contracted with 
 the grantee for the sale of a portion of land ly- 
 ing between the reservoir and mill, upon which 
 the latter erected another mill, drawing his water 
 supply from the flume leading from such reser- 
 voir ; — Held, that a deed of the land so con- 
 tracted, executed to an assignee of the purchaser 
 after the erection of the mill, would not carry 
 the right to the water as appurtenant to the new 
 mill^iut that, on the abandonment of the old 
 millTu would revert to the grantor. lb. 
 
 66. A deed of saw-mill property, described by 
 bounds, with the appurtenances, conveys as an 
 appurtenance the right to use for a way to the 
 mill and for piling logs to be sawed therein, so 
 much of a parcel of ground lying between the 
 highway and the mill and previously used by 
 the grantor for those purposes, as is necessary 
 for the full and free enjoyment of the mill. Sup. 
 Ct, 1871, Voorhees v. Burchard, 6 Lans. 176 ; 
 Aff'd, S. C, 55 N. T. (10 Sick.) 98. 
 
 67. The fact that the grantor and his grantee 
 of such parcel have exacted a toll for the use 
 thereof, does not vary the rights of the parties, 
 they having acted in ignorance of those rights. 
 lb. 
 
 68. Neither can the opinion of the grantee of 
 the mill as to the effect of his deed, affect the 
 rights of a subsequent grantee who has bought 
 with a right to rely, and relying on his grantor's 
 title. lb. 
 
 69. Easement. A deed of land conveys what- 
 ever is in use as an incident or appurtenance to 
 it ; md, to determine whether a right of way or 
 easement is embraced therein, is always a ques- 
 tion of construction of the deed, with reference 
 to its terms and the practical incidents attend- 
 ing its use by the grantor. Sup. Ct., 1875, Par- 
 sons V. G/irner, 5 Hun, 112. 
 
 70. Where the owner of two village lots, tlie 
 westerly one of which was covered by a two-story 
 store building, having a stairway on its east side, 
 projecting over the easterly lot, for access to its 
 second story, conveyed such west lot and build- 
 ing by a warranty deed, which provided that the 
 grantee should have " the right and privilege to 
 have an outside stairs leading to the upper rooms 
 of the store and to be a part of the premises," — 
 Held, that the grantee took a perpetual easement 
 or right of way to his second story over a stair- 
 way of reasonable width, projecting over such 
 adjoining lot ; but the owner of that lot might 
 cover that stairway by a building if done with 
 proper care and due regard to the rights of such 
 
 grantee. Sup. Ct., 1875, Warrington v. Bundy, 5 
 Hun, 617. 
 
 71. Where the owner of land in a village 
 causes it to be mapped and laid out into village 
 lots and intersecting streets, and subsequently 
 conveys lots fronting on a street so laid out, with 
 a provision in the deeds that where any of the lots 
 join a street the line is to extend to the center 
 of such street, such deeds operate as a dedica- 
 tion of the street to the use of the grantees in 
 the deeds, and give them the right to use it as a 
 street as soon as the conveyance is made. By 
 force of the grant, an easement or right of way 
 over the strip designated as a street is attached 
 to the lots granted. Sup. Ct., 1874, Taylor v. 
 Hepper, 2 Hun, 646. 
 
 72. A conveyance to one of the grantees of 
 the previous lots of another lot fronting on the 
 same street, on a portion of which there is situ- 
 ated a barn, which extends across and closes 
 such street, reserving to the grantor for his own 
 use " twelve feet six inches along the south side 
 of said lot, as long as the barn stands there, and 
 if the barn is removed, the line is to be the center 
 of said street," cannot operate as a limitation of 
 the rights in the street acquired under the pre- 
 vious deeds ; and if the reservation should be 
 construed as an implied covenant that the bam 
 might stand there tor an indefinite period, it 
 could only apply to and abridge the rights of 
 the grantee under the conveyance of that partic- 
 ular lot. lb. 
 
 73. A parol promise by the grantor to re- 
 move the barn in a reasonable time cannot add 
 anything to the effect of the deed, or in any 
 manner change its operation. lb. 
 
 74. Fee simple. A deed executed in 1804, 
 conveying certain mill privileges upon rents re- 
 served, which omitted the word " heirs " from 
 the habendum clause, but in a subsequent clause 
 restricted the grantee, " his heirs and assigns " 
 within certain limits, — Held, to convey an estate 
 in fee and not merely for the life of the grantee. 
 Gray, C, dissents. Com. App., 1871, Saunders 
 V. Hanes, 44 N. Y. (5 Hand,) 353. 
 
 75. In determining the true construction of a 
 deed in this respect the court is not confined to 
 the habendum clause ; but every part of the in- 
 strument may be resorted to for the purpose of 
 ascertaining the true meaning and intention of 
 the parties. lb. 
 
 76. To husband and wife. A conveyance 
 of land to husband and wife, makes them, not 
 tenants in common, or joint tenants, but tenants 
 by entireties ; and the husband has a right to 
 possess and control the property during the joint 
 lives of himself and wife. Sup. Ct., 1875, Beach 
 V. Hollister, 3 Hun, 519. 
 
 77. Right to excavate. A conveyance of 
 land to a railroad company " for material," it 
 being understood that it is desired only for the 
 material to be obtained from it for the construc- 
 tion of the road, amounts to a legal consent that 
 the lateral support furnished by such piece of 
 land to the grantor's other adjoining land may 
 be withdrawn, and a release of damages which 
 may arise to such adjoining land by any exca- 
 vation or removal of soil therefrom. Sup. Ct., 
 1875, Ludlow V. Hudson Riv. R. R. Co., 4 Hun, 
 239 ; Eev'g S. C, 6 Lans. 128. 
 
 78. Right to mine. An express grant of 
 minerals, or an exception of them from a grant 
 of the land, carries with it, as incident to the 
 grant or exception, a right to mine for the min- 
 erals, and so, to penetrate to them through the 
 surface of the land. Ct. App., 1875, Marvin v. 
 Brewster Iron Co., 65 N. Y. (10 Sick.) 538. 
 
248 
 
 DEED. 
 
 79. In this right is included the right to do it 
 in such manner as i< most advantageous to the 
 owner, provided the surface be not wholly de- 
 stroyed ; always, however, under the restriction 
 that what he does, must be necessary for him 
 to do for the reasonable use and enjoyment of 
 his property in the minerals. lb. 
 
 80. The necessity which is to govern is not 
 fixed and unvarying, nor is the exercise of the 
 right confined to tlie modes in use when it was 
 first acquired. Such right may be exercised in 
 a manner suitable to tlie business to be carried 
 on, and the owner may keep pace with the pro- 
 gress of invention and ingenuity, and adopt new 
 and improved methods, which are usually avail- 
 ed of in the same business, when necessary to a 
 profitable working of his mine in competition 
 with rivals. lb. 
 
 81. The grantee of such right may not claim 
 as incident to the grant that which is merely 
 convenient. In very rare instances only could 
 he justify the use of the surface for the length- 
 ened keeping of his ore, the deposit of rubbish 
 from the mine, or the erection of buildings for 
 tlie storage of materials, the housing of animals, 
 or tlie use of artisans. lb. 
 
 82. A further reservation or grant of a special 
 right or privilege, as of a way, by the most con- 
 venient route, to and from the beds of ore over 
 the surface land, does not in any way limit the 
 general powers mentioned as incident to the 
 grant. lb. 
 
 83. Whatever it may be necessary for the 
 owner of minerals to do for the profitable and 
 beneficial enjoyment of his own possession, and 
 which he may do without ill effect to the super- 
 jacent soil in its natural state, that he may do, 
 though it harm erections lately put thereon ; 
 and tliis right does not depend upon a covenant 
 for compensation. lb. 
 
 84. The right of mining and of doing all 
 things necessary thereto, being matter of ex- 
 press grant, the owner of the soil cannot com- 
 plain of the acts of the mine owner although a 
 nuisance results as a necessary incident thereto. 
 lb. 
 
 85. Subject to easement. A clause in a 
 deed of village lots, conveying also the land form- 
 ing the streets in front thereof to the center, 
 " subject to the use of said land by all the own- 
 ers of lots and by the public generally, as pub- 
 lic streets," said streets to be opened and remain 
 open accordingly, is not to be construed as re- 
 serving a private right of way, distinct from tlie 
 public easement ; and, therefore, a subsequent 
 grantee of part of the lots so conveyed by deed 
 with like condition will, upon discontinuance of 
 the highway, take the land to the center, free 
 from any right of way over the same in favor of 
 the owner of the remaining lots. Ct. App., 
 1874, Wheeler v. Clark, 58 N. Y. (13 Sick.) 267. 
 
 86. Subject to mortgage. Where two par- 
 cels of land are mortgaged by the several owners 
 to a bank, to secure their joint debt, and one of 
 them afterward conveys his land by a deed 
 containing aclause whereby the grantee assumes 
 to pay the mortgage thereon, such land remains 
 equally liable for the debt with the other mort- 
 gaged parcel, and neither the grantee nor a sub- 
 sequent mortgagee has any equity to have it 
 exonerated from the debt, or to have the otlier 
 parcel sold first on foreclosure of the mortgages. 
 Sup. Ct., Sp. T., 187S, National State Bank of 
 Troy V. Hihbard, 45 How. 280. 
 
 87. A grantee who holds under a deed which, 
 by its terms, is subject to a prior mortgage, is 
 estopped from questioning the consideration or 
 
 validity of such mortgage. Com. App., 1870, 
 Freeman v. Auld, 44 N. Y. (6 Hand,) 50; Bev'g 
 S. C, 37 Barb. 587. 
 
 88. As against such a grantee, a mortgage in 
 terms for the sum of $4,000, but really given to 
 secure a loan of only $2,000, can be enforced for 
 its full amount, by the mortgagee or by liis 
 assignee who paid only 82,000 for it. lb. 
 
 89. ITndivided share. Where the' owner of 
 a certain mill and premises contracted to sell 
 them to another, upon condition that the vendee 
 should have no right tp possession, nor any in- 
 terest or title in the land, and should not remove 
 any of the machinery, until the whole purchase 
 price was paid, the contract being signed by tiie 
 vendor only ; and, after an assignment by such 
 vendee of his interest in the contract to four 
 others, conveyed to one of them, by deed abso- 
 lute, an undivided one-fourth of the premises, 
 upon his paying therefor in full, — Held, that such 
 conveyance was not in pursuance of the con- 
 tract, but, to the extent of the grant, extinguish- 
 ed the conditions, and constituted the grantee a 
 tenant in common in fee of the premises, and a 
 joint owner of machinery severed therefrom, and 
 converted into personalty. Ct. App., 1871, Da- 
 vis V. Lottick, 46 N. Y. (1 Sick.) 893. 
 
 90. Under a deed absolute on its face, accom- 
 panied by an instrument executed by the gran- 
 tee, declaring that the lands were held for certain 
 purposes, the last being to divide the land un- 
 sold, and the money remaining from sales, in 
 proportion of two-thirds to the grantor, and one- 
 third to the grantee, such grantee takes a legal 
 estate in one-third only ; and his assignee in 
 bankruptcy will take no greater estate. N. Y. 
 Supr. Ct., 1872, Ford v. Belmont, 35 N. Y. Supr. 
 (3 J. & Sp.) 135. 
 
 91. A devisee of land, with an absolute power 
 of disposition by will, unaccompanied by any 
 trust, can convey an absolute fee. Sup. Ct., 
 Sp. T., 1873, American Bible Sac. v. Stark, 45 
 How. 160. 
 
 92. A devisee of an undivided interest only 
 cannot partition the estate without the concur- 
 rence of the other parties interested ; but a deed 
 by such devisee, purporting to convey the whole 
 title to a portion of the estate, will not on that 
 account be void, but it will convey his undivided 
 interest in such portion. lb. 
 
 VI. Title bt estoppel. 
 
 93. Title subsequently acquired. A mere 
 grant simply conveys the estate and interest 
 which the grantor has at the time in the prem- 
 ises granted ; but a conveyance with covenant 
 of warranty conveys whatever estate the gran- 
 tor subsequently acquires therein ; if not by es- 
 toppel, at least upon the principle of avoiding 
 circuity of action. Sup. Ct., 1871, Teffi v. 
 Munson, 63 Barb. 31. 
 
 94. A title to land acquired by a party after 
 he has conveyed such land with covenants of 
 warranty or quiet enjoyment, inures to the 
 benefit of his grantee, whether the grantor had 
 any interest to convey at the time of the grant 
 or not. Com. App., 1874, House v. McCormick, 
 57 N. Y. (12 Sick.) 310. 
 
 95. Where J, to whom premises were conveyed 
 for life, remainder to his heirs and their assigns 
 forever, conveyed his life estate to his children, 
 and they by deeds of partition, with covenants 
 of quiet enjoyment, conveyed to each his portion 
 in severalty ; but F, one of such children, died 
 during J's lifetime, leaving a child ; and the in- 
 terest of R, another of them, was sold on execu- 
 
DEED. 
 
 249 
 
 tion against him, and conveyed by sheriff's 
 deed ; and in an action of partition, after the 
 death of J, the portion conveyed to R was as- 
 signed to P, another of the children, — Held, that 
 the purchaser on execution took title to the 
 whole of the premises bought by him, B's title 
 to ten-elevenths having become absolute on the 
 death of J ; and the subsequently acquired title 
 of P to the other one-eleventh (of which R was 
 divested by the death of F) inured to the benefit 
 of such purchaser. lb. 
 
 VII. Conditions, exceptions and resbk- 
 
 VATIONS. 
 
 96. Condition subsequent. A conveyance 
 of real estate on condition that the grantee shall 
 always keep the property insured to a certain 
 amount, and shall make certain specified im- 
 provements, is upon a condition subsequent, and 
 the grantee takes a title in fee, subject to be di- 
 vested by the grantor or his heirs upon breach 
 of the condition. Sup. Ct., 1876, Cook v. War- 
 dens, etc. of St. Paul's Church, 5 Hun, 293. 
 
 97. The mere failure to perform the condition 
 does not divest the estate, unless advantage 
 thereof is taken by the grantor or his heirs. 
 Their interest being a mere possibility of rever- 
 ter, can neither be conveyed nor assigned, so as 
 to give the right to their grantee T)r assignee, 
 lb. 
 
 98. The right of re-entry, or of action for con- 
 dition broken, under a deed by several tenants in 
 common, is a joint and not a several right. lb. 
 
 99. A condition in a deed of land to a relig- 
 ious corporation for church purposes, " that the 
 seats therein shall be for ever free for the use of 
 any and all persons to occupy in the capacity of 
 worship ; but if the seats of the church to be 
 erected thereon, or any other church thereon, 
 shall be rented or sold, then the said above de- 
 scribed premises shall revert to the party of the 
 first part, or her heirs," is not absolutely broken 
 by tlie subsequent sale of the land by the cor- 
 poration, and its conveyance by a deed contain- 
 ing the same condition as to the seats remaining 
 free, such a sale not being one of the seats, with- 
 in the meaning of the condition, and the land 
 does not revert in consequence thereof. Sup. 
 Ct., 1876, Woodworth v. Payne, 6 Hun, 651. 
 
 100. Exception. A deed conveying by 
 metes and bounds, part of a building and the 
 land on which it was situated, and concluding as 
 follows : " it being the intention of the party of 
 the first part to convey twenty-one feet and four 
 inches of the north part of said public house, to- 
 gether with the use of a lane or passway, twelve 
 feet wide from the green and in rear of said pub- 
 lic house to the north line of the lot above deed- 
 ed, to be kept open for the purpose of passing 
 to and from the rear of the said public house to 
 the public common," — Held, to except out of the 
 conveyance the premises over which the way 
 ran, other than the use thereof, as a way, and 
 not merely to reserve a right of way ; and such 
 exception to be for the benefit of the grantor 
 and his assigns. Sup. Ct., 1872, Rexford v. Mar- 
 quis, 7 Lans. 249. 
 
 101. The following clause in a deed, " saving 
 and excepting from the premises hereby con- 
 veyed, all and so much and such part and parts 
 thereof as has or have been lawfully taken for a 
 public road or roads," — Held, to except not mere- 
 ly the public easement in the land covered bv 
 the road, but the land itself. Ct. App., 1873, 
 Munn Y. Worrall, 53 N. Y. (8 Sick.) 44. 
 
 102. Wliere a deed conveyed the title in fee, 
 
 "excepting the conveyance of the foregoing 
 described premises, is made for a water privi- 
 lege to tlie party of tlie second part, and nothing 
 else," — Held, that the exception was repugnant 
 to the title granted, and therefore void, and that 
 the deed carried the fee. Ct. App., 1873, Hill v. 
 Priestly, 52 N. Y. (7 Sick.) 635. 
 
 103. Where a deed with covenants for quiet 
 enjoyment contained a reservation in these 
 words : " Reserving always, a right of way, as 
 now used, on the west side of the above des- 
 cribed premises, for cattle and carriages, from 
 the public highway to the piece of land now 
 owned by B, — Held, it appearing that a right of 
 way then existed in R, which was known to both 
 parties, such reservation must be construed as 
 an exception, and no action would lie on the 
 covenant by reason of the right of way. Ct. 
 App., 1871, Bridger v. Pierson, 45 N. Y. (6 Hand,) 
 602; Rev'g S. C, 1 Lans. 481. 
 
 104. Reservation. Deeds by several heirs 
 to one of their number of the lands descending 
 to them from their father, 80 acres of which 
 had been set off by them and was then occupied 
 by their mother as lier dower, whereby each of 
 the grantors conveys his whole interest in the 
 land, but " reserves out of the above described 
 land one-fourth of thirty acres of said land that 
 was set off to mother as her right of dower or 
 power of thirds ; " — Held to convey the whole 
 premises subject to the motheT's right of dower, 
 that alone being embraced in such reservation. 
 Sup. Ct., 1864, Clark v. Cottrell, 63 Barb. 335. 
 
 105. Although a reservation in a deed will not 
 give title to a stranger, yet it maj- operate, when 
 so intended by the parties, as an exception from 
 the thing granted, and as notice to the grantee 
 of adverse claims to the thing excepted or re- 
 served. Ct. App., 1871, West Point Iron Co. v. 
 Reymert, 45 N. Y. (6 Hand,) 703. 
 
 106. A conveyance of part of a tract of land, as 
 to all of which the grantor had previously sold 
 and leased the right and privilege of quarry- 
 ing and removing cement stone for 25 years, 
 with a covenant in behalf of himself, his heirs 
 and assigns, to renew the lease on terms to be 
 afterward ascertained, " excepting and reserving 
 for the N C Co. the privilege which tliey hold 
 under a certain lease," reserves nothing to the 
 grantor, but only has the effect to subject the 
 premises in the hands of the grantee to such lease 
 and he is bound by the covenant for renewal, 
 which runs with the land. Sup.Ct., 1874, Norton 
 V. Snyder, 2 Hun, 82. 
 
 107. A deed which conveys a certain piece of 
 land with covenant for quiet enjoyment, reserv- 
 ing to the grantor the right to enter on a certain 
 part thereof, definitely described, and dig and 
 take therefrom the clay and sand fit for brick- 
 making, does not except the land so described 
 from the operation of the deed, so as to sever 
 the title, but merely abridges the tenure thereof 
 to the extent of the right reserved ; and the 
 grantor is not restricted to such a use of that 
 right as shall leave the grantee lateral support to 
 the adjoining lands. Johnson, C., dissents. Com. 
 App., ISliiSyckman v. Gillis, 57 N. Y. (12 Sick.) 
 68 ; Rev'g S. C, 6 Lans. 79. 
 
 Vm. Recording, effect of. 
 
 108. Protects purchaser. Abanafde pur- 
 chaser of land, finding the chain of title clear of 
 incumbrances wliile it was in tlie successive per- 
 sons through whom he claims, is not required to 
 examine the records for subsequently recorded 
 incumbrances ; but the recording of the convey- 
 
250 
 
 DEFAMATION— DEFENCES. 
 
 ances held by his grantors inures to his benefit, 
 and, with his good faith, gives him a title inde- 
 feasible by an intermediate unrecorded deed, 
 although it may be put upon record before his 
 own. Sup. Ct., 1875, Oreene v. Deal, 4 Hun, 
 703. See note, p. 706. 
 
 109. A mortgagee who receires his mortgage 
 as security for or in payment of a precedent 
 debt, without any express agreement to extend 
 the time of payment of the debt, or the surrender 
 of any security or parting with any value, is not 
 a purchaser for a valuable consideration, within 
 the meaning of the recording act (1 R. S. 766, sec. 
 1 ; 1 Edm. Stats. 707), and his mortgage will not 
 prevail against a prior unrecorded deed, even 
 though such deed may have been destroyed after 
 delivery. Ct. App., 1873, Cary v. White, 52 N. Y. 
 (7 Sick.) 138; Rev'g S. C, 7 Lans. 1. 
 
 110. If, in such a case, there is a valid agree- 
 ment for an extension of time on the debt, for 
 any period, however short, that is a valuable 
 consideration, but merely taking collateral se- 
 curity due at a future time is not per se, and 
 without any agreement not to sue on the original 
 debt, an extension of time of payment thereof, 
 lb. 
 
 111. A sheriff's certificate of the sale of real 
 estate, filed with the county clerk prior to 1857, 
 but not recorded as required by ch. 60, Laws of 
 1857 (4 Edm. Stats. 634), is void as against a 
 subsequent purchaser whose conveyance is re- 
 corded before the deed given by the sheriff on 
 such certificate is recorded. N. Y. Supr. Ct., 
 1871, Bowers v. Amoux, 33 N. Y. Supr. (1 J. & 
 Sp.) 530. 
 
 l&EFOBMma Deeds. See Reforming Instsu- 
 
 MENIS. 
 
 DEFAMATION. 
 See Libel ; Slandeb. 
 
 DEFAULT. 
 
 See Practice. 
 
 DEFEASANCE. 
 See MoRTQAaE. 
 
 DEFENCES. 
 
 1. Absence. It is no defence to an action 
 by a city ofliuer to recover his salary, that he 
 was absent on numerous days from the office of 
 his superior officer, if his attendance there was 
 not necessary to the faithful discharge of his 
 official duties. N. Y. Supr. Ct., 1875,' Whitney v. 
 Mayor, etc. of New York, 39 N. Y. Supr. (7 J. & 
 Sp.) 106. 
 
 2. Accord and satisfaction. A settlement 
 between partners of their company accounts, 
 upon dissolution of the copartnership, and the 
 payment of the balance found due from one to 
 the other, is a good defense to an action by one 
 of the parties for an accounting, in which he 
 does not deny such settlement, nor allege such 
 errors as would vitiate it. The plaintiff could 
 
 not, in such a case, be permitted to so amend 
 his complaint, on appeal, as to retain jurisdiction. 
 Sup. Ct,, 1875, Weeks v. Boyt, 5 Hun, 347. 
 
 3. Affirmance. Where the purchaser of a 
 business stand was induced to buy by false 
 representations as to the amount of business done 
 by the vendor, — Held, that a subsequent agree- 
 ment by him, in pursuance of which the vendor 
 gave him eight days after the maturity of the 
 note given for the purchase-money in which to 
 sell out, and,on his failure to do so, took posses- 
 sion of the goods under a chattel mortgage col- 
 lateral to the note, and sold them, was no defense 
 to an action by him for the fraud. Ct. App., 
 1872, Ketcham v. Troxell, 49 N. Y. (4 Sick.) 677. 
 
 4. Alteration of instrument. To consti- 
 tute a defense to a written instrument, an altera- 
 tion therein must be material. Sup. Ct., 1871, 
 Flint V. Craig, 59 Barb. 319. 
 
 6. Only the makers of a note, or those in 
 privity with them, can set up such defense. 
 In an action against one to whom a note was 
 turned out as collateral security for his wrongful 
 conversion thereof, and refusal to return the 
 same after repayment of his loan, he cannot set 
 up a material alteration of such note, made since 
 it was executed, either as a bar to the action, or 
 in mitigation of damages. lb. 
 
 6. Another action pending. A defense to 
 an action to set aside a mortgage as a cloud on 
 title, that an appeal is still pending from a judg- 
 ment in a former action between the same par- 
 ties to foreclose the same mortgage, in which 
 action the present plaintiff has appeared and 
 answered, — Held, good on demurrer. N. Y. C. 
 P., Sp. T., 1872, Allen v. Malcolm,12 Abb. N. S. 
 335. 
 
 7. It is a good defense to an action of eject- 
 ment that another action is pending for the 
 recovery of the same land, in which the parties 
 are identical, except that in the former the pres- 
 ent plaintiff is joined with another or co-plain- 
 tiff. Ct. App., 1874, RUter v. Worth, 58 N. Y. 
 (13 Sick.) 627. 
 
 8. It is no defense to an action brought by the 
 receivers of an Insurance company upon pre- 
 mium notes, that the claim in suit had been at- 
 tached or garnished in an action pending in the 
 state of Massachusetts, before the commence- 
 ment of the action by the receivers, but after the 
 company had ceased to have a corporate exist- 
 ence, and that the receivers had made them- 
 selves parties to such suit, which was still pend- 
 ing. A judgment in such suit might be a bar to 
 the receivers' action here. Sup. Ct., 1871, Os- 
 good y. Maguire, 61 Barb. 54. 
 
 9. It is no defense to an action for the fore- 
 closure of a mortgage, that the person for 
 whose benefit it was given has commenced a 
 prior action to rescind the contract of sale, for 
 which it was part consideration, and to have 
 such mortgage delivered up and cancelled. Ct. 
 App., 1878, Pullman v. Alley, 53 N. Y. (8 Sick.) 
 637. 
 
 10. Where a vendor of goods has made a valid 
 election to rescind the sale for fraud, the mere 
 commencement of an action by him, against his 
 vendee, to recover the purchase price, cannot 
 have the effect to revive the contract, and there- 
 fore is no bar to an action against a third party, 
 into whose hands a portion of the goods have 
 come, for a conversion. Ct. App., 1872, Kinney 
 Kiernan, 49 N. Y. (4 Sick.) 164 ; Rev'g S. C, 2 
 Lans. 492. • 
 
 11. Neither will it affect the action for con- 
 version, that the plaintiff has settled his action 
 against the fraudulent vendee, or on such settle- 
 
DEFENOES. 
 
 251 
 
 ment has retained the securities received upon 
 the original contract, if the goods in the hands 
 of the defendant are expressly excluded from 
 such settlement. Gkotee and Allen, JJ., dis- 
 sent, lb. 
 
 12. In an action for the conversion of bonds, 
 left with the defendant for sale and replevied 
 from him by another claimant, the pendency of 
 the replevin suit constitutes no defense, where 
 the plaintiff, though a party defendant therein, 
 was not made such until after the commence- 
 ment of the action for conversion. Ct. App,, 
 1871, Welch V. Sage, 47 N. Y. (2 Sick.) 143. 
 
 13. In an action against an individual trustee 
 of a corporation to enforce his joint and several 
 liability for a failure of the company to file its 
 annual report, it is no defense, that another 
 action is pending against the same and other 
 trustees to enforce their joint liability, under the 
 statute for falsely making a certificate that all 
 the capital of the company was paid in. N. Y. 
 Supr. Ct., 1870, Nimmons v. Tappan, 2 Sweeny, 
 652. 
 
 14. Where a sheriff holding property under 
 attachment was sued therefor in replevin by a 
 third party claiming to be owner, and having 
 retained possession by giving bond, sold a por- 
 tion pending such suit, as perishable goods ; and 
 the attachment having been vacated and the 
 right of the attachment debtor to tlie proceeds 
 of such sale assigned to the plaintiff in replevin, 
 the latter brought action therefor, claiming 
 under such debtor, — Held, that the pendency of 
 the replevin suit was no defense. Com. App., 
 1871, Witty V. Campbell, WS. Y. (5 Hand,) 410. 
 
 15. Assignment. In an action by a judg- 
 ment creditor to set aside an alleged fraudulent 
 conveyance from the debtor to his wife, it is no 
 defense that' such debtor has made a general 
 assignment for the benefit of his creditors. The 
 rights of the assignee, if he has any, can be 
 asserted by him alone, and not by the fraudulent 
 debtor or his wife ; and the objection that he is 
 ■ot a party, is waived unless taken by answer. 
 Com. App., 1873, Fort Stanwix Bank v. Leggett, 
 51 N. Y. (6 Sick.) 552. 
 
 16. Attachment of debt. A valid levy of 
 an attachment upon a debt, still subsisting as a 
 lien thereon, is a good defense to the debtor in 
 an action against him by an assignee of his 
 creditor, claiming under an assignment made 
 subsequent to the levy. N. Y. Supr. Ct., 1871, 
 McGinn V. Ross, 11 Abb. N. S. 20; S. C, 88 
 N. Y. Supr. (1 J. & Sp.) 346. 
 
 17. The creditor, in such a case, can convey 
 no title whatever to the debt until the attach- 
 ment levy is removed. lb. 
 
 18. Irregular attachments. Attachments 
 which have been set aside for irregularity, 
 although a protection to the officer while acting 
 under them in the discharge of his public duty, 
 will afford no defense to the creditor who pro- 
 cured them to be issued. N. Y. Supr. Ct., 1871, 
 Wehle V. Butler, 43 How. 5 ; S. C, 12 Abb. N. S. 
 139 ; 34 N. Y. Supr. (2 J. & Sp.) 215; 35 N. Y. 
 Supr. (3 J. & Sp.) 1. 
 
 19. The fact that several such attachments in 
 favor of different creditors were issued and 
 levied simultaneously upon the same property, 
 will not avail as a defense to such of the cred- 
 itors as may be sued for the seizure and removal 
 of the property under them, all such creditors 
 being jointly and severally liable therefor at the 
 election of the plaintiff. lb. 
 
 20. Neither can the defendants sued set up as 
 a defense the subsequent legal appropriation of 
 the plaintiff's property, either for the joint 
 
 account of all the creditors, or for the account 
 of any one of their number, without plaintiff's 
 assent. lb. 
 
 21. Bankruptcy. It is no defense to an 
 action against a corporation on its notes, that it 
 has on its own application been declared a bank- 
 rupt, and that the plaintiff has proved his 
 claims in the bankruptcy proceedings ; since 
 sec. 37 of the Bankrupt Act prohibits a discharge 
 to a bankrupt corporation, and a debt against it 
 is not discharged, nor does the prohibition of 
 sec. 21 apply to an action thereon. Ct. App., 
 1873, Ansonia Brass and Copper Co. v. New Lamp 
 Chimney Co., 53 N. Y. (8 Sick.) 123; AfE'g S. C., 
 64 Barb. 486. 
 
 22. A discharge in bankruptcy is a good 
 defense to an action, in the nature of a creditor's 
 bill, on a judgment obtained before the dis- 
 charge, to enforce a lien upon real estate pur 
 chased with money of the debtor, the title of 
 which was conveyed to his wife. Ct. App., 1871, 
 Ocean National Bank v. Olcott, 46 N. Y. (1 Sick.) 
 12. 
 
 23. The statutes of uses and trusts (1 Edm. 
 Stats. 677, sees. 51, 52) does not create a specific 
 lien upon such property in favor of creditors, 
 but only an equitable claim to be enforced 
 by action. The lien exists only from the time 
 of commencing, the action, and the judgment, 
 which is its foundation, having been discharged, 
 the action must fail. lb. 
 
 24. A claim by a third party against a 
 partnership, which is denied by it, and was not 
 noticed in an account for services rendered by 
 one of the partners, and acted on by the firm, 
 cannot avail such partnership as a defense in an 
 action by such partner for an accounting and 
 payment of the balance dne him, unless set up 
 by answer. Sup. Ct., 1872, Luce v. Hartshorn, 7 
 Lans. 331. 
 
 25. A compromise of a contract ob- 
 tained by false representations, made before 
 their falsity was discovered, is no bar to an 
 action for the fraud, although the party may 
 have had a bare suspicion at the time, not 
 founded on facts or upon any investigation, of the 
 fraud. Ct. App., 1872, Baker v. Spencer, 47 N. Y. 
 (2 Sick.) 562 ; AfE'g S. C, 58 Barb. 248. 
 
 26. Conditions precedent, nou-com- 
 pliance ■with. A town which issues its bonds 
 with coupons attached, having power to do so, 
 cannot set up as a defence to an action on such 
 bonds or coupons by an innocent purchaser for' 
 value, that conditions precedent to the lawful 
 issuing thereof, such as the application by the 
 proper number of voters, or the prior perform- 
 ance of a certain amount of work on the road 
 in whose aid they were issued, have not been 
 complied with. U. S. Cir. Ct., 1872, In Matter of 
 Town of Bloomington, 42 How. 283. 
 
 27. Consideration, failure of. One who has 
 given notes for an assignment of exclusive ferry 
 riglits which the payee held under a city ordi- 
 nance, which both parties, through a mistaken 
 construction of a general law, supposed to be 
 valid, cannot set up as a defense a failure of 
 consideration in that, by judicial decision, it 
 has been determined that tlie city had no power 
 to grant an exclusive right. Sup. Ct., 1872, 
 Carpentier v. Minturn, 6 Lans. 56, 
 
 28. A grantee in a deed, executed by a 
 married woman, without the written consent of 
 her husband, while the act of 1860 (ch. 90, Laws 
 of 1860), was in force, who has enjoyed posses- 
 sion of the premises thereunder, cannot defend 
 against a bond given for the purchase money on 
 the ground of a failure of consideration. Com. 
 
252 
 
 DEFENCES. 
 
 App., 1872, Schott V. Schwartz, 48 N. Y. (3 Sick.) 
 666. 
 
 29. In an action for the price of stock in a gas 
 company, sold by plaintiff to defendant, the 
 failure of the company to carry out their 
 project of erecting gas-works, and manufactur- 
 ing and selling gas in tlie city of New York, 
 under their new patent, and their abandonment 
 thereof subsequent to the sale, is no defense ; 
 that being a risk assumed by the purchaser at 
 the time he made his investment in the stock. 
 Sup. Ct., 1872, Holdredge v. Webb, 64 Barb. 9. 
 
 80. Consideration, -want of. In an action 
 by an assignee of a claim, the consideration of 
 the assignment cannot be inquired into. Ct. 
 App., 1871, Daby v. Ericsson, 45 N. Y. (6 Han^,) 
 786. 
 
 31. In an action against principal and surety, 
 on a bond, the latter cannot defend on the ground 
 that he received no consideration. Ct. App., 
 1872, Petrie v. Barckley, 47 N. Y. (2 Sick.) 653. 
 
 32. Wliere a contract provides for the pay- 
 ment over of a certain percentage of the receipts 
 under it, the party agreeing to pay cannot, so 
 long as he continues to act under it, refuse to 
 make the stipulated payment on the ground of 
 want of consideration. Ct. App., 1874, Hall v. 
 Minturn, 55 N. Y. (10 Sick.) 676. 
 
 33. The grantee in a quit-claim deed, having 
 no covenants, cannot in an action founded upon 
 the conveyance to him, defend on the ground of 
 a want of consideration. Com. App., 1872, Thorp 
 V. Keoknh Coal Company, 48 N. Y. (3 Sick.) 253 ; 
 Aff'g S. C, 47 Barb. 439. 
 
 34. Where the title of the vendor, in an execu- 
 tory contract for the sale of lands, is such that 
 it is possible and feasible for him to perform, 
 and an assignee thereof is, by the assignment, 
 placed in a position where he can compel per- 
 formance, such assignee cannot defend against 
 a contract executed by him in consideration of 
 the assignment, on the ground of want or failure 
 of consideration, though the title of such ven- 
 dor be not a fee simple. Com. App., 1872, 
 Thomas v. Bartow, 48 N. Y. (3 Sick.) 193. 
 
 35. Counterclaim. In an action upon con- 
 tract, it is competent for the defendant to set up 
 by way of counterclaim, the former existence 
 and dissolution of a partnership between the 
 parties, and a balance due from the plaintiff to 
 himself on their unsettled accounts, and to ask 
 for an accounting. Com. App., 1872, Waddell 
 V. Darling, 51 N. Y. (6 Sick.) 327. 
 
 36. A bank, holding certain stocks as security 
 for a loan, having sold them in an unauthorized 
 manner and attempted to apply the surplus to- 
 ward the liquidation of overdrafts made by the 
 borrower after the loan, but having afterward 
 transferred its whole claim on the overdrafts to 
 anotlier for value, — Beld,^ in an action by the 
 owner of the stocks for a conversion, that the 
 bank could not avail itself of any part «f such 
 overdraft claim by way of offset or counter- 
 claim. Ct. App., 1871, Strong v. National Me- 
 chanics' Banking Association, 45 N. Y. (6 Hand,) 
 718. 
 
 37. Counter equity. An equitable action 
 for the recovery back of money paid by mistake 
 cannot be defeated by a counter equity in favor 
 of the defendant, which is founded upon a dis- 
 tinct and independent transaction, and is insuf- 
 ficient to found an action upon. Ct. App., 1874, 
 Canaday v. Stiger, 55 N. Y. (10 Sick.) 452 ; Aff'g 
 S. C, 35 N. Y.'Supr. (3 J. & Sp.) 423. 
 
 38. Erroneous decree. It is no defense to 
 an action upon an administration bond, found- 
 ed upon the refusal of the administrator to 
 
 pay over money decreed to be paid on a debt due 
 from the estate, that the plaintiff was awarded 
 more than his just proportion of the assets in 
 the hands of the administrator. The remedy 
 for such an error is an appeal from the surro- 
 gate's decree. N. Y. C. P., 1874, Field v. Van- 
 Cott, 15 Abb. N. S. 349. 
 
 89. Death of principal. In an action against 
 bail, they cannot plead in bar their claim to be 
 exonerated as such bail, on the ground of the 
 death of their principal, where the same oc- 
 curred 66 days after the action against the 
 bail was commenced, although before the plain- 
 tiff had served a valid complaint therein. Sup. 
 Ct., 1869, Gauntley v. Wheeler, 4 Lans. 491. 
 
 40. Defect in organization. A defect in 
 the proceedings to organize a corporation under 
 a general law is no defense to an action against 
 a stockbolder, who has participated in its acts of 
 user as a corporation de facto and appeared as a 
 stockholder on its books, to enforce his individual 
 liability for a debt contracted when he so acted 
 and appeared. Com. App., 1874, Aspinwall v. 
 Sacchi, 57 N. Y. (12 Sick.) 831 ; Aff'g S. C, 1 
 Lans. 381. 
 
 41. Eviction from land under a sale on fore- 
 closure of a prior mortgage, is a good defense to 
 an action against a grantee of such land whose 
 deed contains covenants of warranty and for 
 quiet enjoyment, upon a bond given by him in 
 consideration of such conveyance, either by the 
 obligee or his assignee, even though such gran- 
 tee himself bid in the premises on such sale, 
 and, assigning his bid to another, gave up pos- 
 session after the delivery of the sheriff's deed. 
 Com. App., 1871, Cowdery v. Coit, 44 N. Y. (5 
 Hand,) 382 ; Bev'g S. C, 8 Bob. 210. 
 
 42. In an action for the purchase-money of 
 lands which were conveyed subject to a mort- 
 gage, the grantor agreeing to pay any sum due 
 thereon over $1,100, the defendant cannot com- 
 plain of an eviction by reason of a foreclosure 
 and sale under the mortgage, for the sum of 
 $1,378, due at that time, it being his duty to pay 
 the mortgage and look to the grantor for the ex- 
 cess. Com. App., 1872, Schott v. Schwartz, 48 
 N. Y. (3 Sick.) 666. 
 
 43. Failure to on-set. In an action against 
 former co-partners to recover a loan to the firm, 
 it is a good defense in favor of one defendant, 
 that the plaintiff had formerly executed to him 
 a bond that his co-partner should account and 
 pay over to him such share of the assets as he 
 might be entitled to upon final accounting, and, 
 although the owner of the claim in suit when 
 sued upon such bond, had failed to avail him- 
 self of it by way of set-ofi ; and that his co- 
 defendant was and is insolvent. Ct. App., 1872, 
 Barker v. Cocks, 50 N. Y. (6 Sick.) 689. 
 
 44. False representations, to avail as a 
 defense to an action for the price of property 
 sold, must be of matters of fact, not of law or 
 opinion merely. Sup. Ct., 1872, Holdredge v. 
 Webb, 64 Barb. 9. 
 
 45. Statements as to the right of a gas com- 
 pany, organized under the general law and hav- 
 ing a grant from a city council therefor, to 
 manufacture gas and lay pipes in the streets of 
 such city, are not statements of fact but of law 
 or opinion merely, and their falsity is no defense 
 to an action for the price of stock in such com- 
 pany sold on the strength thereof. lb. 
 
 46. The defense that the promissory notes 
 sued on were given for land, and that it was 
 falsely represented by the vendor that the pur- 
 chase covered a certain knoll, by reason of 
 which damages had resulted to the defendant. 
 
DEFENCES. 
 
 253 
 
 cannot be sustained, where it appears that the 
 notes were given after the defendant had knowl- 
 edge that the knoll was not included and had at- 
 tempted to buy the same, and that he had prom- 
 ised to pay one note given under the same cir- 
 cumstances. Sup. Ct., 1874, Isham v. Davison, 1 
 Hun, 114. 
 
 47. False representations in respect to the 
 profitable nature of a business, made by one 
 who was about selling the same to another, Avith 
 the machinery and fixtures necessary to carry 
 it on, together with the lease of the premises 
 where it was being carried on, whereby the per- 
 son to whom they were made was induced to 
 guaranty the payment of the rent, may be set 
 up by him as a defense to an action on his guar- 
 anty, notwithstanding there is no rescission of 
 the contract or lease by the tenant. N. Y. Supr, 
 Ct., 1874, Mendelsm v. Stout, 37 N. Y. Supr. (5 
 J. & Sp.) 408. 
 
 48. Former adjudication. The recovery 
 of a judgment against a firm of wliich the de- 
 fendant is a member, upon the contract alleged 
 to have been induced by the defendant's fraud, 
 is no defense to an action against him alone for 
 tlie fraud. The causes of action are several, 
 and the liability incurred by the defendant by 
 his deceit, is an additional and separate security 
 to -the purchaser. N. Y. Supr. Ct, 1875, Gold- 
 berg V. Dougherty, 39 N. Y. Supr. (7 J. & Sp.) 
 189. 
 
 49> It is no defense to an action ex delicto, that 
 the plaintiS has recovered the full amount of 
 damages for the alleged wrong from a stranger, 
 in no wise joined in liability with the defendant, 
 nor is the plaintiff estopped by the former ad- 
 judication. Ct. App., 1878, Atlantic Dock Co. v. 
 Mayor, etc. of New York City, 53 N. Y. (8 Sick.) 
 64. 
 
 50. Fraud and illegality. That the defend- 
 ant was induced to give the note sued on by 
 false representations and menaces, and in set- 
 tlement of a felony, is a good defense to such 
 note in the hands of a person not a bona fide 
 holder for value. Sup. Ct., 1874, Sowk v.Eckert, 
 2 Hun, 113. 
 
 51. In an action brought by a party for whose 
 benefit a promise to a third party was made, 
 upon such promise, the defendant may set up 
 and prove as a defense that such promise was 
 procured from him by the fraud of such third 
 party. Supi Ct., 1874, Hinman v. Bowen, 3 Hun, 
 192. 
 
 52. Fraud of trustee. Although it is a 
 fraud of trustees of a corporation, entrusted 
 with the duty of purchasing a patent right for 
 use in their business, to purchase it from them- 
 selves at an exorbitant price, for which the 
 corporation might maintain an action against 
 them, yet such fraud is no defense to a stock- 
 holder in an action to compel payment of his 
 subscription to the stock. Sup. Ct., 1875, Dorris 
 V. French, 4 Hun, 292. 
 
 58. Fraud of wife. In an action by a bailor 
 against his bailee for the value of property en- 
 trusted to the latter, the fact that the bailor's 
 wife had procured the property to be delivered 
 to her by means of a fraud for which the bailee 
 could maintain an action against both husband 
 and wife, is no defense ; a joint liability of the 
 plaintiff and another to the defendant not being 
 a bar to a claim in favor of the former individ- 
 ually against the latter. Ct. App., 1872, Kowing 
 V. Manley, 13 Abb. N. S. 276 ; S. C, 49 N. Y. (4 
 Sick.) 192. 
 
 54. Illegality. It is a good defense to an ac- 
 tion upon a contract alleged to have been made 
 
 by the defendant with the plaintiffs while doing 
 business under their firm name of " S, B & Co." 
 that the designation "& Co." did not at the 
 time of the contract represent any actual part- 
 ner or partners. The statute prohibiting the 
 transaction of business under such a fictitious 
 firm name (ch. 281, Laws 1833, 4 Edm. Stats. 
 449), in effect renders an executory contract 
 maae with them in such business illegal and 
 void. N. Y. Supr. Ct., 1872, Swords v. Owen, 43 
 How. 176 ; S. C, 34 N. Y. Supr. (2 J. & Sp.) 277. 
 56. Illegal intent. It is no defense to an 
 action against a carrier for the loss of goods en- 
 trusted to it for transportation, that the owner 
 shipped the same with the illegal intent to 
 smuggle them into the United States, if he was 
 not himseU implicated in that intent ; neither 
 would it be a defense to an action by him for 
 the freight. N. Y. Supr. Ct., Sp. T., 1875, Dono- 
 van V. Co. Generate Trans-Atlantique, 39 N. Y. 
 Supr. (7 J. & Sp.) 519. 
 
 56. Invalid assessment. In an action 
 against an attorney for negligence in searching 
 for assessments upon certain real estate, the de- 
 fendant cannot avail himself of the defense that 
 an assessment paid by the plaintiff was void, as 
 not being made in the name of the owner, with- 
 out showing that he gave the plaintiff seasona- 
 ble notice of the objection to its validity, or of- 
 fered to prosecute an action to remove the lien. 
 Com. App., 1871, Morange v. Mix, 44 N. Y. (5 
 Hand,) 315. 
 
 57. The invalidity of letters patent is a 
 good defense to an action to recover royalties 
 agreed to be paid for the right to manufacture 
 under such letters. Sup. Ct., 1875, Hawks v. 
 Swett, 4 Hun, 146. S. P., Marston v. Swett, 4 
 Hun, 158. 
 
 58. Judgment against indorser. It is no 
 defense to an action on a promissory note by 
 an indorsee against the maker, that the former 
 has recovered judgment thereon against the in- 
 dorser, if there has been no satisfaction of such 
 judgment. Sup. Ct., 1875, Russell Sf Erwin 
 Manf. Co. V. Carpenter, 5 Hun, 162. 
 
 59. Mere lapse of time, before taking action 
 to enforce legal rights, does not affect the rights 
 of the parties, if short of that prescribed by the 
 statute of limitations as a bar to an action there- 
 for. Ct. App., 1874, Ormsby v. Vermont Copper 
 Mining Co., 56 N.Y. (11 Sick.) 623 ; Rev'g S. C, 
 65 Barb. 360. 
 
 60. Levy. Where, after a conversion, the 
 property is taken from the wrong-doer by virtue 
 of process against the owner, that fact may, 
 properly, in an action for the conversion, be set 
 up by such wrong-doer in mitigation of damages. 
 Com. App., 1871, Ball v. Liney, 48 N. Y. (3 
 Sick.) 6; Eev'g S. C, 44 Barb. 605. 
 
 61. In such case, it is not the fact of the seiz- 
 ure which gives the defence, but that it has been 
 seized under such circumstances that the owner 
 has had or could have the benefit of it ; and 
 where it is seized and sold under process against 
 a third party and the proceeds applied accord- 
 ingly, it will avail nothing that the officer had in 
 his hands, at the same time, an execution against 
 the true owner, lb. 
 
 62. Menace. In order to avoid a note on the 
 ground that it was procured by menace of arrest 
 or imprisonment, it must appear that the menace 
 was of unlawful imprisonment, and that the 
 maker was put in fear of such imprisonment, 
 and was thereby induced to execute it. Sup. 
 Ct., 1869, Knapp v. Hyde, 60 Barb. 80. 
 
 63. A threat of an arrest, made to a party liv- 
 ing in this State, for fraudulent representations 
 
254 
 
 DEFENCES. 
 
 made by him in Illinois, in respect to the value 
 of land on which he held a mortgage, to one to 
 whom he was celling such mortgage, is not such 
 a menace as will avoid a note given in settle- 
 ment of the matter. lb. 
 
 64. Mistake. In an action upon contract, 
 the defendant may, under proper allegations in 
 his answer, defend on the ground of a mutual 
 mistake in the contract, and litigate that ques- 
 tion upon the trial. Com. App., 1872, Pitcher v. 
 Hennessej/, 48 N. Y. (3 Sick.) 416. 
 
 65. Negligence on the part of the party suf- 
 fering injury or loss, is no defense to an action 
 by him on a policy of insurance covering such 
 injury or loss. Sup. Ct., 1872, Champlin v. 
 Railway Passenger Assurance Co., 6 Lans. 71. 
 
 66. The doctrine of concurrent negligence, as 
 a defense, has no application to the case of a 
 common carrier, who has failed to use proper 
 diligence in notifying a consignee of the arrival 
 of freight ; and though such consignee, after no- 
 tice, is guilty of delay in removing it, that will 
 not relieve the carrier from liability for loss by 
 depreciation occurring before notice. Ct. App., 
 1872, Zinn v. New Jersey Steamboat Co., 49 N. Y. 
 (4 Sick.) 442. 
 
 67. That a party was guilty of negligence in 
 making a mistake in the payment of money, is 
 no defense to an action by him to recover back 
 the excess. Com. App., 1873, Laivrence v. Amer- 
 ican National Bank, 54 N. Y. (9 Sick.) 432. 
 
 68. New agreement. An agreement be- 
 tween the makers of a note, given for a scow 
 boat, and the payee, after its maturity, that if 
 one of such makers would give a new note, guar- 
 antied by the other, for one-half the amount of 
 the old one, and procure the return of the scow 
 to the payee, and a release of all claims of a 
 subsequent purchaser, and agree to pay one-half 
 of all other claims against the scow, the payee 
 would pay the other half of such claims and give 
 up the first note, is a good defense to an action 
 on such first note, when fully performed by the 
 makers. Sup. Ct., 1863, EUenwood v. Fults, 63 
 Barb. 321. 
 
 69. The return of the scow with a release of 
 all claims by the then owner, and the giving of 
 an agreement by the debtors to pay one-half of 
 all claims against it, and the giving of the new 
 note with a valid guaranty thereon, — Seld to be 
 a fulfillment of such agreement. lb. 
 
 70. An agreement whereby a party who had 
 previously given a promissory note to another, 
 for the expressed consideration of a sum of 
 money imd of all claims and demands then held 
 by the payee of the note against him, bearing 
 date on the day of the execution of such agree- 
 ment, promises to support such payee during 
 life, is a good defense to an action on the note, 
 although that bears a prior date ; the presump- 
 tion being that there was an accounting of all 
 claims, including such note, at the date of the 
 agreement. Sup. Ct., 1871, Dutcher v. Porter, 
 63 Barb. 15. 
 
 71. Non-return of consideration. In an 
 action against holders of bonds issued by a town 
 in aid of a railroad, to compel the surrender and 
 cancellation of the bonds on the ground that 
 they were illegally issued, it is no defense that 
 the town has not returned or offered to return 
 the stock received by it in payment therefor. 
 Only the railroad company would have the right 
 to claim such return. Talcott, J., dissents. 
 Sup. Ct., 1873, Town of Venice v. Breed, 65 Barb. 
 597. 
 
 72. Part of realty. Proof that personal 
 property has been annexed so as to become part 
 
 of the realty, while it may bar an action for the 
 recovery of its possession, is no answer to an 
 action to recover damages for a conversion 
 thereof. Ct. App., 1874, McEntee v. Harrison, 58 
 N. Y. (13 Sick.) 654. 
 
 73. Where a vendee of lands under verbal 
 contract enters thereon, with his vendor's con- 
 sent, to occupy and work until the latter is ready 
 to convey, and, without default on his part, is 
 ejected by the vendor, whose agents enter and 
 take possession of the crops raised by him, such 
 agents, in an action by the vendee for a conver- 
 sion of the crops, cannot be heard to allege in 
 defense that the plaintiff, by partial performance 
 of the contract, had become entitled to specific 
 performance in equity, and the crops, conse- 
 quently, were part of the realty. Ct. App., 1872, 
 Harris v. Frink, 49 N. Y. (4 Sick.) 24 ; Eev'g 
 S. C, 2 Lans. 35. 
 
 74. Payment of a draft in full by the draw- 
 ers to the holder is a good defense to an action 
 by such holder against parties to whom it had 
 been entrusted for collection, to recover the 
 amount received thereon by them. Sup. Ct., 
 1874, Farmers and Mechs. Nat. Bk. of Buffalo 
 V. Sprague, 2 Hun, 522. 
 
 75. An agent, employed by a consul at a 
 foreign port to collect a claim placed in the 
 hands of the latter in his ofSeial capacity for 
 collection, has no right to undertake to dis- 
 charge the trust thus created, and therefore, in 
 an action for the money collected, cannot de- 
 fend on the ground that he has paid it to one 
 claiming to be the cestui que trust. Ct. App., 
 1872, Hancock v. Gomez, 50 N. Y. (5 Sick.) 668. 
 
 76. Payment of a debt by a stranger, cannot 
 be pleaded in bar of the defendant's own obliga- 
 tion. N. Y. C. P., 1869, Blum v. Hartman, 3 
 Daly, 47. 
 
 77. Payment enjoined. It is no defense 
 to an action, that, since its commencement, 
 judgment has been obtained against the plaintiff 
 by one of its creditors, proceedings supplemen- 
 tary instituted, a receiver appointed and quali- 
 fied therein, and the defendant restrained from 
 paying over his indebtedness ; it not appearing 
 that payment has been made to or demanded by 
 such receiver, or any measures taken by him 
 for the collection of the debt. Ct. App., 1870, 
 Glenville Woollen Co. v. Ripley, 43 N. Y. (4 
 Hand,) 206. 
 
 78. The defendant might, at any time, take 
 an order of court for a payment of the amount, 
 such as would protect him from twice paying 
 it. lb. 
 
 79. Payment to sheriff. It is no defense 
 to an action by an assignee of moneys in the 
 hands of one who had collected the same for 
 the assignor, against such collector, to recover 
 such moneys, that he had paid them over to the 
 sheriff, on a judgment against the assignor, in 
 an attachment suit commenced after he had 
 notice of the assignment, without calling upon 
 the assignee to interplead, or in any way invok- 
 ing the protection or instructions of the court. 
 N. Y. Supr. Ct., 1872, Greentree v. Rosenstock, 34 
 N. Y. Supr. (2 J. & Sp.) 505. 
 
 80. Payment, voluntary. Payment of an 
 account rendered in order to obtain the release 
 of a pledge held by the claimant, which he re- 
 fuses to deliver except on that condition, does 
 not preclude the party paying, as upon a volun- 
 tary payment, from afterward disputing any 
 item of the account to- which objection was 
 made at the time. Com. App., 1873, Stenton v. 
 Jerome, 54 N. Y. (9 Sick.) 480. 
 
 81. A tax-payer placed the amount of his taxes 
 
DEFENCES. 
 
 255 
 
 in a package on his counter in front of the col- 
 lector, at the same time notifying him that he 
 would make himself liable by taking it, because 
 his warrant was defective, and forbidding his 
 doing so. The collector took the package and 
 carried it away,-rfleW, that this could not be 
 considered a voluntary payment which would 
 bar an action for the conversion. Com. App., 
 1873, Bellinger v. Gray, 51 N. Y. (6 Sick.) 610. 
 
 82. Plaintiffs not parties in interest. 
 In an action upon a subscription paper made 
 payable to " the treasurer of a board of trus- 
 tees which may be elected " by a certain asso- 
 ciation at a convention to meet at a place speci- 
 fied on a day certain, it is a good defense, that 
 the plaintiffs are not the trustees elected at the 
 time specified, but that they were irregularly 
 elected at another time and place. Com. App., 
 1872, Wayne and Ontario Col. Inst. v. Blackmar, 
 48 N. Y. (3 Sick.) 66S. 
 
 83. Possession. It is a good defense to an 
 action for an assault and battery in forcibly ex- 
 pelling a person from a dwelling house, that the 
 defendant was in the actual possession of the 
 house, and that, after first requesting the plaintiff- 
 to leave and his refusal to do so, the defendant 
 used no more force than the occasion required. 
 Ct. App., 1869, Comstock v. Dodge, 43 How. 97. 
 
 84. Purchasers of real property at an exe- 
 cution sale may set up any defense to a prior 
 mortgage thereon. Sup. Ct., 1875, Nichols v. 
 Iremonger, 3 Hun, 609. 
 
 85. Ratification. The fact that a father, 
 who Is next of kin and administrator to his de- 
 ceased minor son, has demanded, in bis capacity 
 as administrator, and received the bounty paid 
 his son upon enlistment, does not amount to a 
 ratification of the contract of enlistment made 
 by the son ; and will constitute no defense to an 
 action by such father for harboring such minor 
 and enticing him to enlist as defendant's sub- 
 stitute. Ct. App., 1872, Caughey v. Smith, 47 
 N. Y. (2 Sick.) 244. 
 
 86. Such bounty and the wages due the son 
 from the government as well, are debts due the 
 estate of the son ; and the receipt of neither is 
 a bar to an action for a loss of his services. lb. 
 
 87. Readiness to pay a demand at the 
 particular time and place where it was payable, 
 continued until suit therefor and the money 
 paid into court, may be set up by answer, to 
 shield the debtor from liability for interest and 
 costs. Sup. Ct., 1871, Locklin v. Moore, 5 Lans. 
 307 ; AfE'd, S. C, 57 N. Y. (12 Sick.) 360. 
 
 . 88. Refusal to sell pledge. It is no de- 
 fense to an action on a promissory note, that 
 the payee refused to sell a part of the property 
 pledged to him as security for such note, when 
 requested to do so by the defendants upon an 
 offer procured by them, which sale if made 
 would have nearly paid the note and left prop- 
 erty enough to have more than paid the bal- 
 ance, whereas the whole was afterward sold for 
 a much less sum, leaving a deficiency, unless it 
 appears that such refusal was in bad faith or 
 tortious. N. Y. Supr. Ct., 1874, Field v. Leavitt, 
 37 N. Y. Supr. (5 J. & Sp.) 215. 
 
 89. Release of levy. An offer to release an 
 illegal levy upon property, unaccepted, is no de- 
 fence to an action for the conversion of such 
 property. Com. App., 1870, Livermore y. Nor- 
 throp, 44 N. Y. (5 Hand,) 107. 
 
 90. Seizure by government. It is no de- 
 fense to an action for the price of whisky sold, 
 the delivery of which was complete, that the 
 same was seized by theU. S. government, unless 
 it was so seized for the acts or omissions of the 
 
 vendor. Sup. Ct., 1874, Devlin v. Crary, 1 Hun, 
 589 ; AfE'd, S. C, 60 N. Y. (16 Sick.) 835. 
 
 91. Statute of limitations. A joint 
 debtor against whom a judgment has been ren- 
 dered on contract, after service of process on his 
 co-defendant only, when summoned to show 
 cause why he should not be bound by the judg- 
 ment, can deny the judgment or set up any de- 
 fense thereto which has arisen subsequent to 
 the judgment, or he may set up any defense 
 to the original cause of action which he could 
 have set up had he been served with sum- 
 mons, and no other. He cannot set up the 
 statute of limitations, unless the cause of action 
 was barred by statute when suit was originally 
 commenced. Sup. Ct, Sp. T., 1873, Gibson v. 
 Van Derzee, 47 How. 231 ; S. C, 14 Abb. N. S. 111. 
 
 92. A foreign statute of limitations is not a 
 bar to an action here, upon a contract made and 
 to be performed there. Sup. Ct., 1872, Carpen- 
 tier V. Minturn, 6 Lans. 56. 
 
 93. Strike of 'nrorkmen. That a part of 
 the delay in completing a building, for which 
 the suit was brought, was caused by a strike of 
 workmen during or after the default, is no de- 
 fense to the suit. N. Y. Supr. Ct., 1875, Hexter 
 V. Knox, 39 N. Y. Supr. (7 J. & Sp.) 109. 
 
 94. Surety. In an action upon a joint and 
 several promissory note, which does not show 
 on its face that one of the makers signed as 
 surety for the other, such surety cannot avail 
 himself of the fact that he so signed, and that 
 the plaintiff, having knowledge of the fact, ne- 
 glected and refused to collect of the principal 
 debtor while he was solvent, though requested 
 so to do, as a defense to the action, or introduce 
 parol proof to establish such suretyship. Sup. 
 Ct., 1872, Campbell v. Tate, 7 Lans. 370. 
 
 95. Want of license. The defense that the 
 sale upon which the action is founded is void, 
 because the seller had no U. S. license to make 
 it, will not avail unless set up in the answer. 
 Sup. Ct., 1871, Gilbert v. Sage, 6 Lans. 287. 
 
 96. Want of title. A purchaser of per- 
 sonal property cannot ordinarily defeat a recov- 
 ery of the price, by proof that the seller had no 
 title, unless he has been ousted, or there has 
 been a recovery by the true owner ; but he may 
 do so by proof of fraud in respect to the title, or 
 of fraudulent concealment of his want of titl^, 
 on the part of the seller. Sup. Ct., 1862, Sweet- 
 man V. Prince, 62 Barb. 256. 
 
 97. It is not necessary, in such a case, for the 
 purchaser to return the property, in order to 
 entitle him to set up that defense. lb. 
 
 98. Such fraudulent concealment is a com- 
 plete defense to an action for the price, brought 
 by an assignee of the seller. lb. 
 
 99. Ultra vires. A defendant who has con- 
 tracted with a corporation cannot set up as a de- 
 fense to an action on his contract, that it was 
 ultra vires, until he restores the property, or its 
 value, received from the corporation. N. Y. 
 Supr. Ct., 1875, Whitney Arms Co. v. Barlow, 38 
 N. Y. Supr. (6 J. & Sp.) 554. 
 
 100. Neither a corporation nor its trustees 
 can set up such defence against another corpo- 
 ration with which it has contracted, without 
 such restoration. lb. 
 
 101. Usury. A corporation which succeeds 
 to the legal rights of a party who might avail 
 himself of usury, either for attack or defense, 
 may assert it in like manner, although it cannot 
 set up that defense to its own contracts. Ct. 
 App., 1872, Merchants Exch. Nat. Bank v. Com- 
 mercial Warehouse Co., 49 N. Y. (4 Sick.) 635; 
 Rev'g S. C, 33 N. Y. Supr. (1 J. & Sp.) 317. 
 
256 
 
 DEMAND BEFORE ACTION— DEPOSITION. 
 
 DEMAND BEFORE ACTION. 
 See Action; convebsion. 
 
 DEMURRAGE. 
 
 1. "WTien recoverable. In the absence of 
 proof of a custom for agents to agree with the 
 owner of a vessel upon the lay days to be al- 
 lowed the freighter, authority to make such 
 agreement cannot be presumed, but must be 
 proved, in order to charge the freighter for the 
 detention of the vessel on the express contract. 
 Sup. Ct., 1873, Fisher v. Abeel, 44 How. 432. 
 
 2. Although there may be no express agree- 
 ment for demurrage, damages in the nature of 
 demurrage may be recovered against the owner 
 of the cargo, if he improperly detains the vessel 
 beyond a reasonable time for loading or unload- 
 ing ; but a detention while waiting her turn, in 
 accordance with custom, is not such as will 
 make him liable. lb. 
 
 3 The consignor of a cargo of cotton, who 
 fails to furnish the master of the vessel with the 
 certificate and permit required by the revenue 
 laws (Act of July 13, 1866, § 5), whereby the 
 ship is detained in port after she would other- 
 wise have put to sea, is liable to the owner or 
 charterer for his special damages. And, in such 
 case, it is not necessary that the master should 
 take other than the usual means by post to no- 
 tify such consignor of the detention, or that he 
 should either pay the tax or unload and store 
 the cotton. N. Y. C. P., 1870, Bixby v. Bennett, 
 3 Daly, 225. 
 
 4. Construction of contract. Under a 
 bill of lading which provided that the con- 
 signees should have three full working or week 
 days, after the boat arrived at their dock, in 
 which to discharge cargo, and for any time that 
 the boat was detained for discharging after the 
 expiration of such three days should pay $10 
 per day, and at the same rate for portions of 
 days, hours of detention are to be estimated as 
 twenty-fourths of a day. Sup. Ct., 1874, Wiles 
 V. N. Y. Cent. ^ Hud. Riv. R. R. Co., 2 Hun, 109. 
 
 5. If, on arriving at the place of destination, 
 and near the dock of the consignees, and notify- 
 ing them thereof, the master is directed to lie 
 still until they call for him, that is a waiver of 
 the necessity of arrival at the dock before a 
 claim for damages could arise. lb. 
 
 6. Amount of damages. In the absence of 
 a special contract as to the rate of demurrage, 
 the measure of damages will be what the vessel 
 is capable of earning, or would usually earn, 
 during the time she is detained through the 
 fault of the freighter. N. Y. C. P., 1870, Bixby 
 v. Bennett, 3 Daly, 225. 
 
 DEMURRER. 
 See Pleading; 
 
 DENIAL. 
 See Pleading. 
 
 DEPOSITION. 
 
 1. A commission rogatory, that is, one 
 addressed to a judicial tribunal or officer of a 
 foreign country, with a request to summon the 
 witness and take the testimony, although not 
 the mode authorized by statute for taking the 
 testimony of witnesses residing out of the State, 
 is yet proper where the evidence can be produced 
 in no other way, on account of the laws of the 
 country where the witness is sought to be 
 examined, and to prevent a failure of justice 
 the court may in its discretion issue such a 
 commission. Ct. App., 1874, Anonymous, 69' 
 N. Y. (14 Sick.) 813. 
 
 2. The commission. The signature of the 
 clerk of the court to a commission to take 
 testimony is not essential to its validity, but 
 where the commission is issued by authority of 
 the court, the signature of the judge thereto is 
 sufficient. Sup. Ct, 1870, Goodyear v. Vosburgh, 
 41 How. 421. 
 
 3. Execution of. A commission executed by 
 one of two commissioners named, the other 
 being absent at the time the witnesses were 
 produced, though present for some time after 
 the commission arrived, — Held, properly ex- 
 ecuted ; such commission providing that, in the 
 absence of one of the commissioners, the ex- 
 amination might be taken by the other. N. y . 
 C. P., 1873, Leetch v. Atlantic Mut. Ins. Co., 4 
 Daly, 518. 
 
 4. In the absence of special instructions to a 
 commissioner, it is no ground of objection to a 
 deposition taken by him of foreign witnesses 
 who could not speak the English language, that 
 he acted himself as interpreter. lb. 
 
 5. Certificate of commissioner. A re- 
 turn of a commissioner which shows that the 
 witness was duly and publicly sworn, pursuant 
 to the directions " hereunto annexed and ex- 
 amined," with a reference to the provisions of 
 the Revised Statutes which were annexed to and 
 constituted a part of the commission, is sufficient. 
 No separate certificate is required by the stat- 
 ute. Sup. Ct., 1870, Goodyear v. Vosburgh, 41 
 How. 421. 
 
 6. Specific ans'wers. Where a deposition 
 taken on commission contailis specific answers 
 to all the interrogatories, numbered to conform 
 thereto, except the last general cross-interroga- 
 tory, but a detached clause, not numbered, as 
 follows : " And deponent further knoweth not " 
 appears at its close and before the signature, 
 that should be taken as an answer to the last 
 cross-interrogatory, and is sufficient. Ct. App., 
 1875, Gates v. Beecher, 60 N. Y. (15 Sick.) 518. 
 
 7. Return by mall. Where, by a stipula- 
 tion of attorneys, the "plaintiff's attorney was 
 authorized to direct on the back of the commis- 
 sion the manner in which it should be returned, 
 and that tlie commission and deposition " shall 
 be returned by mail to S E, Esq., clerk,'' &c. ; 
 and he did direct it to be returned to the county 
 clerk, but omitted to direct it to be returned by 
 mail, — Held, that such omission did not, of itself, 
 violate the terms of the stipulation so as to 
 vitiate the deposition, but the commission hav- 
 ing been in fact returned to such clerk by 
 mail, tliat was a sufficient compliance with the 
 stipulation. Sup. Ct., 1870, Goodyear v. Vosburgh, 
 41 How. 421. 
 
 8. Exclusion. Where the statute has been 
 substantially complied with in the return, the 
 deposition should not be excluded, except upon 
 the clearest grounds of error, amounting to 
 something more than a mere irregularity. lb. 
 
DEPUTY— DETERMINING CLAIMS TO REAL PROPERTY. 257 
 
 9. Mere formal objections to the return of a 
 commission will not, in general, be regarded at 
 the trial, but the party objecting on such 
 ground should be required to move before the 
 trial that the deposition be suppressed. lb. 
 
 10. A deposition will not be rejected merely 
 because the answer of the witness to a cross- 
 interrogatory is not full and explicit. The 
 party complaining, if he wishes to elicit further 
 facts, can only do so by obtaining a re-execution 
 of the commission. Ct. App., 1872, Baker v. 
 Spencer, 47 N. Y. (2 Sick.) 662. 
 
 11. Ezcluaion of ans^rer. If a witness 
 examined on commission, after fully answering 
 all the other interrogatories, gives, in answer to 
 the concluding general interrogatory as to any 
 further or other matter or thing concerning the 
 matters inquired about, his opinion merely in re- 
 lation to the contract in suit, such answer may 
 properly be excluded. Sup. Ct., 1874, Heineman 
 V. Heard, 2 Hun, 324. 
 
 DEPUTY. 
 
 See Sheriff. 
 
 DESCENT. 
 
 1. An alien named in ch. 5, Laws 1827,. who 
 did not' become naturalized within six years 
 after its passage, was by the terms of that stat- 
 ute excluded from its benefits, and his subsequent 
 naturalization made his property subject to the 
 laws of descent prescribed by the Revised Stat- 
 utes. Sup. Ct., 1871, McCarty v. Deming, 4 Lans. 
 440. 
 
 2. Alienage of father. As between two 
 brothers who are citizens, the alienage of their 
 father will not impede the descent of property 
 from one to the other ; the inheritance between 
 brothers being immediate. Sup. Ct., 1871, 
 Smith V. Mulligan, 11 Abb. N. S. 438. 
 
 3. A purchaser in partition of the estate of 
 the deceased brother, cannot therefore refuse to 
 take the title, on the ground that the estate es- 
 cheated, and the people were not parties to the 
 suit, lb. 
 
 4. Ancestor, ■who is. The word " ances- 
 tor " as used in sec. 15 of 1 E. S. 753, providing 
 that in the case of property coming to an 
 intestate by descent, devise or gift of some one 
 of his ancestors, all those of his heirs not of the 
 blood of such ancestor shall be excluded from 
 the inheritance, refers to the immediate an- 
 cestor from whom the intestate took, and not 
 to the remote ancestor who was last in as 
 purchaser, and is the original source of title. 
 
 , Ct. App., 1873, Wheeler v. Clutterbuck, 52 N. Y. 
 (7 Sick.) 67. 
 
 5. When used with reference to the descent 
 of real property, the term " ancestor " embraces 
 collaterals as well as lineals, through whom an 
 inheritance is derived. lb. 
 
 6. A half-brother, not entitled to take by 
 sec. 15, above referred to, is not a "brother" 
 within the meaning of sec 6 of the same act, 
 which provides that the mother of an intestate 
 shall take in case he leaves no descendant, 
 father, brother or sister, or descendant of a 
 brother or sister. lb. 
 
 7. Where an intestate who, in common with a 
 brother, had inherited lands from his father, and 
 afterward, by the death, of the brother, inherited 
 
 17 
 
 his share of the same, died leaving surviving him 
 his mother and her son by a second marriage ; 
 —Held, that as to the lands inherited directly 
 from the father, his mother took the fee, and as 
 to that portion inherited from his brother, she 
 took merely a life estate therein, the reversion 
 descending to her son, his half-brother. lb. 
 
 8. A poBt-testEunentary child, not men- 
 tioned in his father's will nor provided for by 
 settlement, has the same rights in the testator's 
 real and personal estate as if his father had died 
 intestate. Sup. Ct., 1871, Sanford v. Sanford, 5 
 Lans. 486 ; S. C, 61 Barb. 293. 
 
 9. Such child cannot maintain an action 
 against the children born prior to the will who ■ 
 have received advancements, to recover any 
 portion of such advancements ; but he may 
 maintain an action to compel distribution, and 
 to determine what portion of the estate devised 
 to such children shall belong to them. lb. 
 
 10. Per capita. Where the estate of an in- 
 testate falls to cousins, children of different pa- 
 rents, but aU in equal degree of consanguinity, 
 they take per capita and not per stirpes. Sup. 
 Ct., 1872, Kelly v. Kelly, 5 Lans. 443. 
 
 DETERMINING CLAIMS TO REAL 
 PROPERTY. 
 
 1. The action for the determination of 
 claims to real property, authorized by the stat- 
 utes, cannot be maintained against infant de- 
 fendants. Sup. Ct., 1872, Bailey v. Southwick, 6 
 Lans. 356 ; Aff'd, S. C, sub nom, Bailey v. Briggs, 
 56 N. Y. (11 Sick.) 407. 
 
 2. The proceedings must be in pursuance of 
 the provisions of the Revised Statutes ^2 R. S. 
 312 ; 2 Bdm. Stats. 321 ; amendments ch. 50, 
 Laws 1848; ch. 116, Laws 1854; ch. 511, Laws 
 1855 ; ch. 173, Laws 1860 ; ch. 219, Laws 1864, 
 and Code, section 449). The only change effect- 
 ed by that section of the Code is, that the pro- 
 ceedings are carried on by complaint and answer 
 and otherwise as in an action. lb. 
 
 3. An action under section 449 of the Code 
 for the determination of claims to real property, 
 is not a substitute for proceedings under the Re- 
 vised Statutes, but the right to institute those 
 proceedings is left unimpaired and in full force, 
 and the remedy by action is another and cumu- 
 lative remedy, to be adopted by a party at his 
 election. Sup. Ct., 1874, Uaynes v. Onderdonk, 
 2 Hun, 619. S. P. Boylston v. Wheeler, 2 Hun, 
 622. 
 
 4. Who can maintain. The statute author- 
 izing proceedings to compel the determination of 
 claims to real property (2 R. S. 312, sec. 1 ; 
 2,Edm. Stats. 321), requires that the plaintiff 
 shall have been three years in the actual pos- 
 session of the premises ; and such possession 
 must be one in fact as distinguished from a 
 mere constructive possession. Ct. App., 1874, 
 Churchill V. Onderdonk, 59 N. Y. (14 Sick.) 134. 
 
 5. Mere proof of a deed of the premises to 
 plaintiff's ancestor, his decease intestate, that 
 the plaintiffs are his heirs-at-law, and that the 
 premises were vacant, neither establishes nor 
 gives ground to presume an actual possession, 
 lb. 
 
 6; In order to maintain an action under the 
 Code for the determination of claims to real 
 property, the plaintiff must claim and have an 
 estate in the premises in fee, for life, or for a 
 term of years not less than ten. Sup. Ct., 1874, 
 Haynes v. Onderdonk, 2 Hun, 619- 
 
258 DEVISE— DISTRICT COURTS OF NEW YORK CITY. 
 
 7. If it appears upon the trial of such an ac- 
 tion that the plaintiff had neither estate in nor 
 possession of the premises at the commence- 
 ment of the action, the complaint should be dis- 
 missed, witli costs. lb. 
 
 8. The action is to be deemed pending, under 
 section 132 of the Code, for the purpose of ope- 
 rating as constructive notice to purchasers, &c., 
 from the defendant, from the time of filing the 
 notice, but for otlier purposes, and as against a 
 resident defendant, only from the time the sum- 
 mons is personally served on him, or delivered 
 to an officer with intent that it shall be ac- 
 tually served ; consequently, a plaintiff who 
 conveys away all his interest in the property on 
 the same day that he files the summons, com- 
 plaint and notice, cannot maintain the action, 
 lb. 
 
 9. Practice. An action for the determina- 
 tion of claims to real property is to be governed 
 by the same rules as other actions, and the same 
 defenses may be set up to defeat the right to 
 such relief. N. Y. Supr.Ct., 1872, Ford v. Bel- 
 mont, 35 N. Y. Supr. (3 J. & Sp.) 135. 
 
 10. If the defendant shows a better title than 
 plaintiff, as, where he shows a possession, under 
 claim of title, in himself and those through 
 whom he derives title, continuing for 14 years 
 immediately preceding the time when the 
 plaintiff took possession, and the plaintiff shows 
 no title except that derived from three years' 
 possession preceding the commencement of the 
 action, judgment for the possession should be 
 rendered for defendant. lb. 
 
 DEVISE. 
 See Legacy ; Will. 
 
 DISCHARGE. 
 
 See Bakkruptct ; Insolvent Debtor ; Moet- 
 GAGE ; Practice. 
 
 DISCONTINUANCE. 
 See Practice. 
 
 DISCOVERY. 
 
 See Practice. 
 
 DISMISSAL OF COMPLAINT. 
 See Practice. 
 
 DISORDERLY CONDUCT. 
 
 1. Security, effect of. The security for 
 good behavior required to be given by a person 
 convicted as " disorderly," under 2 R. S. 903, 
 sec. 1 (1 Edm. Stats. 591), for abandoning and 
 neglecting to support his wife and child, is 
 not a bond of indemnity to the town or county 
 to repay such sums as either might advance for 
 
 their support, but the amount named in it is a 
 penalty imposed for the neglect to support them ; 
 and the people can maintain an action thereon 
 and recover the amount of the penalty, in case 
 the obligor continues to neglect to support his 
 family, although the wife may have supported 
 herself and child by her own exertions. Sup. 
 Ct., 1875, People v. Pettit, 3 Hun, 416. 
 
 DISTRIBUTION. 
 See Surrogate. 
 
 DISTRICT COURTS OF NEW YORK CITY. 
 
 1. Appointment of clerks. The clerks 
 and assistant clerks of the District Courts of the 
 City of New York, authorized by ch. 438, Laws 
 of 1872, are to be appointed by each justice for 
 his own court ; and the office is to be held dur- 
 ing the pleasure of the authority making the 
 appointment. Sup. Ct., 1875, People ex rel. 
 Hogan v. Flynn, 4 Hun, 647. 
 
 2. Election in Tenth District. The intent 
 of the act creating the Tenth Judicial District of 
 New York City out of towns proposed to be an- 
 nexed to the city (ch. 613, Laws of 1873), was 
 that the justice of that court should be elected 
 at the general election in November, 1873. Sup. 
 Ct., 1875, People v. Flanagan, 5 Hun, 187. 
 
 3. Such election was properly held in confor- 
 mity to the laws at that time operative in the 
 county of Westchester ; and by inspectors who 
 had been chosen for the several election districts 
 of the towns proposed to be annexed. lb. 
 
 4. A janitor of a district civil court in New 
 York City is a mere employ^, not an officer, and 
 when he receives his appointment from the com- 
 mon council and has his compensation fixed by 
 them, it cannot be changed by the board of esti- 
 mate and apportionment, by resolution under 
 sec. 97, ch. 835, Laws of 1873. N. Y. C. P., 
 Sp. T., 1874, Sullivan v. Mayor, etc. of N. Y. 
 City, 48 How. 238. 
 
 5. A person appointed janitor of a district 
 court in New York City, in pursuance of the 
 resolution of the common council of that city 
 of March 14, 1870, is entitled to his salary as 
 fixed by the coun, and can collect the same 
 from the city. N. Y. C. P., 1873, Sullivan v. 
 Mayor, etc. of the City of New York, 45 How. 
 152 ; AfE'd by Ct. App., S. C, 47 How. 491 ; 53 
 N. Y. (8 Sick.) 652. 
 
 6. The common council had power under the 
 district court act (sec. 7, ch. 344, Laws 1857), 
 to adopt the resolution under which such ap- 
 pointment was made, notwithstanding the pro- 
 vision of sec. 11, ch. 876, Laws 1869, prohib- 
 iting the creation by them of any new office, 
 &c. That does not create a new office. S. C, 
 47 How. 491. 
 
 7. Jurisdiction. The district courts of New 
 York city, being justices' courts, have no juris- 
 diction except such as is expressly conferred 
 by statute ; and there is no statute grant- 
 ing them jurisdiction of action* against foreign 
 corporations which have a place of business in 
 the city. N. Y. C. P., 1871, Ahem v. National 
 Steamship Co., 11 Abb. N. S. 356 ; S. C, 8 Daly, 
 399 ; Overruling S. C, 8 Abb. N. S. 283. 
 
 8. Where an action in a district court of the 
 city of New York has been discontinued with 
 costs no subsequent action for the same cause 
 
DIVOROE— DOMICIL. 
 
 259 
 
 can be brought until such costs are paid. N. Y. 
 C. P., 1872, Fkwelling v. Brandon, 4 Daly, 338. 
 
 9. Attachment, jurisdiction of. In order 
 to give a district court jurisdiction of a proceed- 
 ing by attacliment, it seems, the plaintiH should 
 file a bond, such as is required in cases where 
 attachments are issued by justices of the peace 
 in suits for $100 or less (2 Edm. Stats., 246, sec. 
 29) ; but, it appearing that it has been the uni- 
 versal practice for 14 years to give and accept 
 an undertaking in place thereof, — Held, that an 
 undertaking substantially in the form prescribed 
 by sec. 21, oh. 344, Laws of 1857, was sufficient. 
 N. Y. C. P., 1871, Van Loon v. Lyon, 4 Daly, 149. 
 
 10. An affidavit for an attachment, 
 which shows an admission by the defendant 
 that she had disposed of her property and was 
 going to Canada to live, — Meld, sufficient to 
 authorize the issuing of the writ. lb. 
 
 11. Claim and delivery. A district court 
 of the city of New York has jurisdiction of an 
 action for the recovery of chattels unlawfully 
 taken and detained in another county, where 
 the defendant resides and process is served upon 
 him in the county of New York. N. Y. C. P., 
 1871, Boyd V. Hawden, 8 Daly, 455. 
 
 12. Complaint in. An oral complaint " on 
 a counterfeit bill passed by defendants to G 
 & E in payment of checks, and assigned to the 
 plaintiff, $20," held sufficient. N. Y. C. P., 1870, 
 Murray v. Bull's Head Bank, 8 Daly, 864. 
 
 18. Interpleader. The provisions of sec. 69 
 to 126 of the Code, both inclusive, are applicable 
 to the district courts of tlie city of New York, 
 and these courts unquestionably possess the 
 power to compel adverse claimants to the same 
 money or property to interplead, if the case be 
 a proper one. N. Y. C. P., 1871, Dreyer v. Rauch, 
 42 How. 22 ; S. C, 3 Daly, 434 ; 10 Abb. N. S. 
 348. 
 
 14. Removal. TJpon presentation to a jus- 
 tice of a district court in the city of New York 
 of an undertaking with two sureties, who liave 
 justified in proper form, for the purpose of 
 removing a proper ease into the Court of Com- 
 mon Pleas, he is bound judicially to approve the 
 undertaking and sign the order of removal, and 
 has no discretion to refuse to do so on the ground 
 that he knows one of the sureties and cannot 
 accept him as a responsible surety. N. Y. C. 
 P., 1875, O'Connor v. Moschowitz, 48 How. 451. 
 
 15. A judgment rendered by sueh district 
 court after refusing to sign the order of removal 
 on that ground, will be set aside. lb. 
 
 16. Appeal, notice of. The notice of appeal 
 from a j udgment of a district court of the city 
 of New York, required by sec. 353 of tlie Code, 
 should point out clearly the error complained 
 of, whether in the process, pleadings, proceedings 
 on trial, or in rendering judgment, and a notice 
 stating generally that the judgment is against 
 the Jaw and evidence, is too vague. N. Y. C. P., 
 1871, Begley v. Chose, 4 Daly, 157. 
 
 17. Salary of justices. Under ch. 383, Laws 
 1870, authorizing the mayor and comptroller 
 to fix the salaries of the civil justices of the 
 city, or any of them, at a sum " not exceeding 
 the salary now paid to the police justices of said 
 city," a justice of the district court whose salary 
 was under that law fixed by those officers at 
 $10,000, the salary which was then actually 
 being paid to the police justices under an or- 
 dinance passed in 1869, is entitled to be paid that 
 salary by the city, whether the ordinance so 
 fixing the salary of police justices was legal or 
 not. Sup. Ct., Sp. T., 1872, Quin v. Mayor, etc. 
 of New York, 44 How. 266 ; S. C, 63 Barb. 595. 
 
 DIVORCE. 
 See Makriaoe ANDDivoaOB. 
 
 DOCKET. 
 
 See Justices' Court. 
 
 DOCKS AND WHARFS. 
 See Wharfs. 
 
 DOGS. 
 See Akimals ; Crihikal Law. 
 
 DOMICIL. 
 
 1. 'What is. For the purposes of succession, 
 every person must have a domicil somewhere, 
 and can have but one, and the domicil of origin 
 is presumed to continue until a new one is 
 acquired. Ct. App., 1878, Dupuy v. Wurtz, 53 
 N. Y. (8 Sick.) 556. 
 
 2. To effect a change of domicil there must 
 be not only a change of residence, but an inten- 
 tion to abandon the former domicil, and acquire 
 another as the sole domicil. Length of residence 
 will not alone effect the change, but there must 
 be the intention as well. lb. 
 
 8. Where a lady domiciled in New York went 
 abroad on account of her health, making her 
 headquarters at Nice, where she partly furnished 
 the rooms occupied by her at a hotel, and hired 
 other rooms for the storage of her things while 
 she travelled during the summer months, and 
 after liaving long and consistently entertained 
 and frequently declared her intention of return- 
 ing to her home in New York, finally became 
 satisfied that the state of her health was such 
 that she would be unable to do so, and would, 
 in all probability, die abroad, and so declared to 
 her friends. that she never expected to return, 
 and rented her house in New York, which she 
 had before kept unoccupied, b ut reserving a room 
 therein for the storage of her household goods, 
 leaving her investments in this country unchang- 
 ed and making no new ones abroad, — Held, that 
 she retained her domicil in New York. lb. 
 
 4. Intention. Domicil is controlled by inten- 
 tion, and that is evidenced, often, by circum- 
 stances attending a residence, as well as by decla- 
 ration. The domicil of birtli or origin continues 
 until it is proven to have been abandoned, or a 
 new one ha"^ been obtained. Sup. Ct., 1872, 
 Dupuy V. Seymour, 64 Barb. 156. 
 
 6. A married woman, who had been for many 
 years settled with her husband in New York, 
 went to Europe for her health, and remained 
 there about twelve years,until her death, sojourn- 
 ing in different places as her health and comfort 
 required, but always speaking of New York as 
 her home, to which she would return if health, 
 permitted, and declaring it to be so in her will, 
 — Held, not to have changed her domicil. lb. 
 
 6. Of soldier. Although a soldier while in 
 the army, neither acquires nor loses liis residence 
 in the State where he was domiciled when he 
 entered the army, yet it is as competent for him 
 
260 
 
 DOWER. 
 
 to abandon that and acquire a new domicil, as it 
 is for any other citizen. Sup. Ct., 1871, Ames v. 
 Duryea, 6 Lans. 165. 
 
 7. His purchasing or renting a dwelling in an- 
 other place, to which he removes his family and 
 in which he lives, are evidences of a change of 
 domicil, in the absence of any fact manifesting 
 an intention not to remain permanently in such 
 new domicil. So also is the removal of his fam- 
 ily to a new place where they take board. lb. 
 
 DOWER. 
 
 1. The right. Where land is devised to a 
 person by a will which also authorizes the ex- 
 ecutors to sell and convey the land so devised, 
 the title rests in the devisee immediately on the 
 death of the testator, and if such devisee dies 
 before the exercise of the power of sale, his 
 widow is entitled to dower in the land ; and if 
 the power is afterward exercised she is entitled 
 to dower in the proceeds. Surr. Ct., 1872, Timp- 
 son's Estate, 15 Abb. N. S. 230. 
 
 2. Although such a sale does divest the title 
 of the heir or devisee, as well as that of the 
 widow, in the lands sold, yet it does not affect 
 their interest in the proceeds of the sale. lb. 
 
 3. Equitable mortgage. The wife of one 
 who holds the title of land as a security in the 
 nature of an equitable mortgage or trust, sub- 
 ject to a right of redemption by the cestui que 
 trust, is not entitled to dower in such land. Sup. 
 Ct., 1872, Terrett v. Crombie, 6 Lans. 82. 
 
 4. Surplus moneys. A widow's dower 
 right in the surplus moneys paid into court 
 under a judgment of foreclosure, where she elects 
 to accept a gross sum in full satisfaction thereof, 
 is not chargeable with any share of the commis- 
 sions for receiving and paying out the money, 
 or of the costs of the proceedings as to such sur- 
 plus moneys. Sup. Ct. Chambers, 1872, Camp- 
 bell V. Erving, 43 How. 258. 
 
 5. Vested remainder. Where a husband, 
 having a vested remainder in fee in lands after 
 a life estate, subject to be defeated by his death 
 before that of the tenant for life, purchases the 
 life estate, his wife's right of dgwer attaches, 
 snbject to be defeated by such condition ; and 
 no act of the husband alone can extinguish or 
 suspend the right, nor will it be barred by a sale 
 on execution againsthim. Ct. App., 1872, House 
 V. Jackson, 50 N. Y. (5 Sick.) 161. S. P. Powers 
 V. Jackson, 67 N. Y. (12 Sick.) 654 ; Sheridan v. 
 Jackson, id. 655. 
 
 6. How barred. Adultery on the part of 
 the wife does not of itself bar herclaim to dower, 
 but to have that effect it must, under the pro- 
 vision of section 8, 1 R. S. 741 (1 Edm. Stats. 
 692), and section 48, 2 R. S. 146 (2 Edm. Stats. 
 152), be followed by a conviction and final judg- 
 ment or decree of the court, in an action for a 
 divorce. Sup. Ct., Sp. T., 1872, Pitts v. Pitts, 44 
 How. 64 ; S. C, 13 Abb. N. S. 272 ; 64 Barb. 482 ; 
 Aff'd by Gen. T., S. C, 44 How 300 ; and by Ct. 
 App., 14 Abb. N. S. 97; 62 N. Y. (7 Sick.) 593; 
 46 How. 46. S. P. Schiffer v. Pruden, 89 N. Y. 
 Supr. (7 J. & Sp.) 167. 
 
 7. A finding by a referee in a divorce suit 
 that the wife had been guilty of an act of adul- 
 tery, but that the same had been condoned by 
 the husband by his subsequent voluntary cohab- 
 itation with her after knowledge of the fact, for 
 which reason the complaint was dismissed, is not 
 a conviction of Adultery within the meaning of 
 the statute. Such condonation bars an action 
 
 for divorce, and does away with the forfeiture 
 of dower. lb. 
 
 8. Where, in an action by the husband for a 
 divorce on the ground of the adultery of the 
 wife, it is found that both parties have been 
 guilty of that offense, and the divorce is there- 
 fore denied, the wife is not divested of her in- 
 choate right of dower. N. Y. Supr. Ct., 1875, 
 'ScHffer V. Pruden, 39 N. Y. Supr. (7 J. & Sp.) 
 167. 
 
 9. Divorce for adultery of husband. A 
 decree dissolving the marriage contract on the 
 ground of the adultery of the husband, does not 
 deprive the wife of her right of dower in the 
 real estate of which he was seized at any time 
 during the coverture, but she is not entitled to 
 dower in lands acquired by him subsequent to 
 the divorce. Sup. Ct., Sp. T., 1875, Kade v. Lau- 
 ber, 48 How. 382. 
 
 10. Limited divorce. A provision in a de- 
 cree of divorce a mensa et thoro, allowing a gross 
 sum to the wife in lieu of herdower and distrib- 
 utive share in the estate of her husband, is un- 
 authorized by statute and void, and does not 
 bar or affect her right of dower in his real estate 
 after his death. Sup. Ct., 1862, Crane v. Cavana, 
 62 Barb. 109. 
 
 11. Foreclosure sale. A sale of mortgaged 
 premises under a power of sale in a purchase 
 money mortgage, during the life time of the 
 mortgagor, bars the inchoate right of dower of 
 his wife, although she was not a party to the 
 instrument. Ct. App., 1872, Brackett v. Baum, 
 SON. Y. (6 Sick.) 8. 
 
 12. Joining husband in deed. A wife who 
 joins with her husband in a conveyance of lands, 
 thereby releases and extinguishes her right of 
 dower therein, not only as to the grantee and 
 his successors but also as to third parties. Sup. 
 Ct., 1871, Elmendorf v. Lockwood, 4 Lans. 393 ; 
 Aff'd, S. C, 57 N. Y. (12 Sick.) 322. 
 
 13. Therefore, if a purchase-money mortgage, 
 executed by the husband alone before such con- 
 veyance by both is foreclosed by advertisement, 
 the wife is not, after the death of her husband, 
 entitled to dower in the surplus moneys arising 
 on such foreclosure, even as against strangers to 
 the conveyance. lb. 
 
 14. Merger. A wife's inchoate right of 
 dower in her husband's land does not become 
 merged in the fee by her joining with her hus- 
 band in a conveyance thereof to a tliird party, 
 and his reconveyance to her, in case such con- 
 veyances are afterward adjudged fraudulent as 
 against creditors of the husband, so as to pre- 
 vent her from claiming dower as against a pur- 
 chaser on execution. Ct. App., Malonyv. JBoran, 
 12 Abb. N. S. 289 ; S. C, 49 N. Y. (4 Sick.) 111. 
 
 15. The estoppel created by so joining in a 
 conveyance operates only by way of estoppel, 
 and can be taken advantage of only by those 
 who claim under that conveyance. lb. 
 
 16. Provision in ■will. In order to put a 
 widow to her election between dower and the 
 provision made for her in the will of her hus- 
 band, such provision must be expressly declared 
 therein to be in lieu of dower, or must be wholly 
 inconsistent with her claim of dower in the par- 
 ticular portion of the estate as to which it is 
 made. N. Y. Supr. Ct., Sp. T., 1874, Bond v. 
 McNiff, 38 N. Y. Supr. (6 J. & Sp.) 83. 
 
 17. A devise by a husband to his wife of the 
 free and uninterrupted use and occupation of 
 all his real and personal property until his young- 
 est child shall have arrived at the age of 21 
 years, is not inconsistent with a claim for 
 
 I dower. lb. 
 
DRAFT— DRAINAGE. 
 
 261 
 
 18. A widow, against whom a decree was ren- 
 dered for the specific performance of a contract 
 made by her deceased husband for the convey- 
 ance of certain lands, — Held,iiot entitled to dower 
 therein ; 1st, because she had made no claim 
 therefor on the trial ; and 2d, because her hus- 
 band had willed to her his entire property. Ct. 
 App., 1873, Myres v. DeMier, 62 N. Y. (7 Sick.) 
 342. 
 
 19. A quitclaim or release from a, married 
 woman to a stranger to the title, is ineffectual 
 to divest her of an inchoate right of dower ; but 
 a deed executed directly to a purchaser will op- 
 erate to bar such right. Ct. App., 1873, Mer- 
 chants Bank v. Thomson, 55 N. Y. (10 Sick.) 7. 
 
 20. Admeasuremeiit of dower only fixes its 
 location and extent. The right to it comes by 
 law, and the heir may assign it voluntarily to 
 the widow. Sup. Ct., 1875, Rutherford v; Gra- 
 ham, 4 Hun, 796. 
 
 21. Sale. A written instrument under seal, 
 whereby a widow " leased and to farm let " 
 lands which had been admeasured to her for 
 dower, for five years, for a sum certain, and in 
 case she is living at the expiration of that time, 
 then the lease to continue for the term of her 
 natural life, on payment of an additional sum, — 
 Seld a sale of the estate of the doweress and not 
 a lease thereof, and not in violation of sec. 14, art. 
 1, of the constitution. lb. 
 
 22. By metes' and bounds. A widow is 
 entitled to have set off to her as dower, by metes 
 and bounds, to be held by her in severalty, one- 
 third part of land, of which, during the cover- 
 ture, the husband had been seized in fee in sev- 
 eralty, and had conveyed an undivided half to 
 another person, she not joining in the convey- 
 ance. Sup. Ct., 1872, Smith v. Smith, 6 Lans. 
 313. 
 
 23. She is also entitled to have set off to her, 
 by metes and bounds, one-third part of land 
 which was during coverture conveyed to her 
 husband and another, as tenants in common, 
 and so held at the time of her husband's death, 
 
 _ but to be held by her as tenant in common with 
 the other owner. lb. 
 
 24. Confirmation. It is customary and 
 proper for commissioners for the admeasure- 
 ment of dower to give notice of their meetings to 
 parties interested ; but the want of a formal no- 
 tice of such meetings is not sufficient ground for 
 refusing to confirm their report, where it ap- 
 pears that the party objecting knew of the 
 meetings, and that no injustice has been done 
 him by the decision. lb. 
 
 25. Appeal. A proceeding for the ad- 
 measurement of dower by petition to the Su- 
 preme Court, under 2 E. S. 488, is a special 
 proceeding, and an appeal to the General Term 
 from an order of the Special Term confirming 
 the report of the commissioners, may be upheld 
 under the provisions oi ch. 270, Laws 1854 (4 
 Edm. Stats. 681). lb. 
 
 26. Such an appeal does not stay the proceed- 
 ings without the order of the court or of a judge 
 thereof. lb. 
 
 27. The costs of such an appeal are regulated 
 by said ch. 270, and not by the Bevised Statutes. 
 lb. 
 
 28. Action for. Where the proceeding is 
 by petition, the admeasurement of dower is con- 
 clusive only as to the location and extent of the 
 widow's right ; but when the widow proceeds 
 by action, the decision is conclusive upon all the 
 parties brought in, and the judgment is abso- 
 lute. Sup. Ct., Sp. T., 1812, Dwyer v. Dwyer, 13 
 Abb. N. S. 269. 
 
 29. In such an action judgment cannot be en- 
 tered, in default of answer, upon the verified 
 complaint alone, without further proof. The act 
 authorizing the sale of real estate in which any 
 widow shall be entitled to dower (ch. 717, Laws 
 1870), docs not dispense with such proof. lb. 
 
 30. An action brought by a widow, to set 
 aside an instrument by which she had elected 
 to take provisions of a will in lieu of dower, 
 is not a proceeding for the recovery of dower, 
 within the meaning of the Bevised Statutes, 
 compelling her to take such proceedings within 
 a year. Ct. App., 1871, Chamberlain v. Chamber- 
 lain, 43 N. Y. (4 Hand,) 424. 
 
 81. Recovery of. Dower maybe recovered 
 by action against the person in possession of the 
 real estate subject thereto, but an action will 
 not lie for its value in money unless an express 
 promise be proved. Mesne profits are not re- 
 coverable until after judgment for dower. Sup. 
 Ct., 1875, Kyle v. Kyle, 3 Hun, 458. 
 
 32. An executor cannot voluntarily pay a sum 
 of money out of the assets to one claiming 
 dower out of the estate of the testator, and have 
 it allowed in his account. lb. 
 
 DBAFT. 
 
 1. Moneys not on deposit. A draft upon 
 a savings bank in which the drawer has no 
 funds, cannot operate as an assignment of 
 moneys afterward deposited by him ; but as to 
 such funds, it is a mere authority or direction 
 to the bank. Ct. App., 1811, Foraredy. Seamens 
 Savings Bank, 10 Abb. N. S. 425. 
 
 2. Viewed as such, in the absence of any in- 
 terest in the payee, it is revocable, and becomes 
 revoked upon the death of the drawer before it 
 is presented. lb. 
 
 See Bills and Kotbs, 
 
 DBAINAGB. 
 
 See Ch. 303, Laws of 1871 ; Ch. 574, Laws oi 
 1872 ; Ch. 243, Laws of 1873. 
 
 1. Surface water. The owner of land may 
 relieve it from surface water, and adopt means 
 to prevent such water from accumulating and 
 remaining upon it, either by ditches or drains, 
 or by filling up low and wet places, for the pur- 
 pose of enhancing its value, even though he 
 thereby causes incidental injury to the owners 
 of adjacent lands ; but he has no right to dis- 
 charge such water upon adjacent lands to their 
 injury. Sup. Ct, 1871, Foot v. Bronson, 4 Lans. 47. 
 
 2. He may, it seems, discharge such water into 
 a natural water course, even though injury is 
 caused thereby to riparian owners below. lb. 
 
 8. No action will lie against a party for so us- 
 ing or changing the surface of l)is own laud, as 
 to dam up and obstruct the flow of surface water, 
 which had been accustomed to flow over and 
 across the land of his neighbor. Sup. Ct., 1874, 
 Wagner v. Long Island Railroad Co., 2 Hun, 633. 
 
 4. An owner of land adjoining a railroad, can- 
 not maintain an action against the railroad com- 
 pany for injuries occasioned by the construction 
 of an embankment on its own land, which ob- 
 structed the water accustomed to flow in winter 
 and very rainy weather along the highway past 
 the plaintiff's land without collecting there, and 
 threw it back on such land. lb. 
 
262 
 
 DRAWER AND DRAWEE— EASEMENT. 
 
 6. ABsessment of expense. The provision 
 of the statute (ch. 577, Laws of 1864), relating to 
 drainage in the counties of Jefferson and St. 
 Lawrence, tliat the expense of tlie work sliall be 
 apportioned according to benefits; is substantial, 
 hot formal, and if, instead, tlie commissioners 
 adopt as a rule an apportionment per acre, the 
 assessment will be set aside. Ct. App., 1874, Peo- 
 ple ex rel. Parker v. Jefferson County Court, 55 
 N. Y. (10 Sick.) 604. 
 
 6. Appeal to county court. On appeal 
 from the apportionment of the drainage com- 
 missioners under the proyisions of ch. 180, Laws 
 1868, the county court is not concluded by the 
 certificate of the commissioners as to the rule of 
 apportionment adopted, but the question is an 
 open one to be determined upon the evidence. 
 lb. 
 
 7. The reversal by the county judge of the 
 determination of the commissioners in the mat- 
 ter of draining swamp lands, upon the ground 
 that it was not necessary for the public health 
 that the lands described in the petition should 
 be drained, is conclusive upon that question ; the 
 Supreme Court having no power to review the 
 facts, but the appeal being limited, by the terms 
 of sec. 12, ch. 888, Laws of 1869, to questions of 
 law. Sup. Ct., 1875, In matter of Draining Swamp 
 Lands, 6 Hun, 116. 
 
 DRAWER AND DRAWEE. 
 See Bills and Notes. 
 
 DRUNKENNESS.' 
 See Ckiminal Law. 
 
 DUPLICITY. 
 See Pleading. 
 
 DURESS. 
 
 1. What is not. The mere refusal to pay 
 over money due unless the party demanding it 
 will execute a release of all other claims against 
 the party paying is not legal duress. Sup. Ct., 
 1874, Miller v. Coates, 2 Hun, 156. 
 
 2. A notice to a bank by another bank that if 
 it returns forged checks again through the 
 clearing house, the latter bank will make no 
 further exchanges with it, has none of the ele- 
 ments of coercion in it. Sup. Ct., 1872, Stug- 
 vesant Bank v. National MecKs Banking Asso., 
 7 Lans. 197. 
 
 DYING DECLARATIONS. 
 See Criminal Law. 
 
 EASEMENT. 
 
 1. In genereil. The owner in fee of land 
 may impose upon it any burden, however in- 
 
 jurious or destructive, not inconsistent with his 
 general right of ownership, if such burden is not 
 in violation of public policy, and does not in- 
 juriously affect the rights or property of others ; 
 and, if of such a nature that it may be imposed 
 by grant, it may also be imposed by covenant. 
 Sup. Ct., 1874, Van Rennselaer y. Albany ^ S. R. 
 R Co., 1 Hun, 507. 
 
 2. How created. The right to maintain an 
 embankment upon land, without liability for 
 damages caused by future laud slides depositing 
 earth and other material thereon, in consequence 
 of the peculiar construction of such embank- 
 ment or of the nature of the soil where it ad- 
 joined such land, may be created by a covenant 
 that the covenantor " will make no claim for 
 damages therefor," and that he, his " lieirs and 
 legal representatives, shall consider the money 
 this day paid — compensation in full for all past 
 and all future damage " to the land caused 
 thereby, " and this instrument a bar to all future 
 claims." lb. 
 
 3. No one can, by his sole act, even by his 
 express grant, create an easement in premises of 
 which he owns only an interest in common with 
 others ; nor can a tenant in common of property, 
 who. owns other premises in severalty, so use 
 the last as to acquire or exercise for the benefit 
 thereof an easement in the property held in 
 common, or one that he may confer upon another 
 person, either by grant or by operation of an 
 estoppel. Ct. App., 1872, Crippen v. Morss, 49 
 N. Y. (4 Sick.) 63. 
 
 4. If the owner of a tract of land lays it out 
 into lots, and intersects it with a street or alley 
 obviously for the convenience of the lots, and 
 purchases are made in reference to such con- 
 venience, and conveyances are given bounding 
 lots upon such street or alley, the purchasers 
 thereby acquire an easement in the way which 
 cannot be recalled. Ct. App., 1872, Wiagins v. 
 McCleary, 49 N. Y. (4 Sick.) 346. " • 
 
 5. Such an easement is not lost by mere non- 
 user, but wliere non-user is relied upon as evi- 
 dence of an abandonment of the right, it will' 
 depend upon the circumstances, and is a ques- 
 tion of intention. lb. 
 
 6. Where a grantor conveys a parcel of land 
 and a building, one wall of which building rests 
 upon a strip of land belonging to himself, but 
 outside of the line of the lot so conveyed, he 
 thereby creates an easement or servitude in favor 
 of the grantee in such strip, so that the wall 
 may remain thereon so long at least as the build- 
 ing endures, and the subsequent grantee of such 
 strip cannot eject him therefrom. Sup. Ct. Cir., 
 1874, Kurkel v. Haley, 47 How. 75. 
 
 7. By permission. The enjoyment of an 
 easement or right to draw water from a well on 
 another's land, had by or under an agreement 
 between the owners of adjoining lands, gives no 
 right to the easement. Sup. Ct., 1872, Appelgate 
 V. Morse, 7 Lans. 59. 
 
 8. By prescription. A right of way by pre- 
 scription cannot be established by proof of a user 
 while the land claimed as subject thereto was a 
 public highway. To give a user this effect, it 
 must be while all persons concerned are free 
 from disability to resist it. Ct. App., 1874, 
 WMeler v. Clark, 58 N. Y. (13 Sick.) 267. 
 
 9. Where the owners of adjoining lots make a 
 way between them, each setting off an equal por- 
 tieSn of land for that purpose, and they and their 
 grantees continue to use it in common as a way 
 for 20 years, it may reasonably be inferred that 
 such use was under claim of right and adverse. 
 Sup. Ct., 1875, Townsendv. Bissell, 4Baa, 297. 
 
EASEMENT. 
 
 263 
 
 10. A purchaser of one of such lots, under a 
 written contract of sale, will hold such easement 
 as against the owner of the adjoining lot, who, 
 with knowledge of the existence of such con- 
 tract, takes a deed of the land used as a way. lb. 
 
 11. Where the owner of a lower mill had been 
 accustomed to use flush boards upon his dam, 
 more or less, at different seasons of the year, for 
 a period of over 20 years, so as to flow back 
 the water upon the lands of an upper mill owner, 
 always removing them, however, when they 
 materially interfered with the use of the upper 
 mill, and upon demand made, but rarely, if ever, 
 removing them further than sufficient to satisfy 
 the demand, — Held, that he thereby acquired an 
 easement to maintain the boards when not ma- 
 terially detrimental to the upper mill, and that 
 a decree entirely prohibiting their use was er- 
 roneous. Ct. App., 1871, Hall v. Augsbury, 46 N. 
 T. (1 Sick.) 622. 
 
 12. "When purchaser takes subject to. A 
 drain constructed by the owner of adjoining lots 
 across one of them, from a vault built partly 
 upon each lot, is not such an apparent and visi- 
 ble-easement as will entitle the purchaser of the 
 dominant estate, or lot, to an injunction, re- 
 straining the destruction of the drain by a prior 
 purchaser of the servient estate with full cove- 
 nants of warranty and against incumbrances. 
 Ct. App., 1871, Butierworth v. Crawford, 46 N. Y. 
 (1 Sick.) 349 ; Rev'g S. C, 3 Daly, 57. 
 
 13. The owner of two lots erected a house 
 upon each, making a party wall between them, 
 and then, by two deeds, both dated and recorded 
 at the same time, conveyed them to different 
 purchasers by a description which so located the 
 line as to throw the whole of the wall and two 
 inches of land to the west of it, within the boun- 
 daries of the easterly lot, — Held, that the latter 
 lot was charged with the servitude of having the 
 beams of the house upon the other supported by 
 the party wall, and that the right to use the wall 
 necessarily carried with it the right to occupy 
 the space of two inches intervening between the 
 wall and the division line with the timbers which 
 were to flnd support in the wall, and to have the 
 building and wall remain as they were at the 
 time of the conveyance, so long, at least, as they 
 should both endure. Ct. App., 1872, Rogers v. 
 Linsheimer, 50 N. Y. (5 Sick.) 646. 
 
 14. The right to use for a way to a saw mill 
 and for piling logs to be sawed there, a parcel of 
 land lying between the highway and the mill, 
 previously used for that purpose by the grantor, 
 or so much as may be necessary for the free and 
 full enjoyment of the mill, will pass by a con- 
 veyance of the mill property by metes and 
 bounds, with appurtenances, as being appur- 
 tenant thereto. Sup. Ct., 1871, Voorhees v. Bur- 
 chard, 6 Lans. 176; Aff'd, S. C, £5 N. Y. (10 
 Sick.) 98. 
 
 15. Such easement may also be gained by 
 prescription. lb. 
 
 16. Rights of parties. The owner of the 
 dominant estate may at any time do that which 
 is necessary to enjoy the easement and make 
 the same effectual ; and as an incident thereto, 
 keep the same in repair and fit for use. Sup. 
 Ct., 1872, Beats v. Stewart, 6 Lans. 408. 
 
 17. The purchaser of a mill and mill-nond, 
 with an easement for a tail-race over adjoming 
 land below the mill, has the right not merely to 
 maintain such race in the condition in which it 
 was at the time of his purchase, but also to make 
 improvements necessary to the full enjoyment 
 of the easement. He may therefore remove de- 
 posits made in the bottom of the race by freshets 
 
 to the side thereof, and lower it to its original 
 depth, although below the depth at the time of 
 his purchase. Ibi 
 
 18. The easement of a pond for a mill-pond 
 includes the right to float logs therein for the 
 use of the mill. lb. 
 
 19. The owner of lands over which another 
 has a right of way, has a right to erect and 
 maintain a gate or bars across the way, provid- 
 ed he does not thereby unnecessarily interfere 
 with the use of it by the owner of the easement, 
 Sup. Ct., 1871, Huson v. Young, 4 Lans. 63. 
 
 20. The extent to which he may so interfere 
 with the use, depends upon the purposes for 
 which the way is used, and the necessity of such 
 erection for the protection of the property of the 
 owner of the land, and the question is one for 
 a jury to determine. lb. 
 
 21. The owner of a right of way by reser- 
 vation has no greater rights under it than 
 he would have if acquired by grant. In both 
 he is limited to such use of it as is reasonably, 
 necessary to its enjoyment. lb. 
 
 22. Construction of grant. A grant of a 
 right to dig and box up a spring, and to insert a 
 pipe therein and conduct it across the grantor's 
 land, is limited and specific, and, though support- 
 ed by covenants of warranty and for quiet enjoy- 
 ment, does not make a servient estate of the 
 grantor's whole farm ; but he has a right to dig 
 on his own land another spring within a very 
 short distance of the one granted, though it ren- 
 der the latter useless. Bliss v. Greeley, 45 N. Y 
 (6 Hand,) 671. 
 
 23. How extinguished. The owner of 
 adjoining stores, numbered 1, 2, 3 and 4, 
 constructed a railway through the four cellars 
 to carry goods across No. 1, to each of those 
 having larger numbers, subsequently conveying 
 1, 2 and 3, in succession to different purchasers, 
 excepting and reserving in each of the deeds 
 the right of way over the track to himself and 
 his assigns. The owners of 1, 2 and 3 desiring 
 to terminate the right of way, for that purpose 
 purchased No. 4 ; and the wall between Nos. 2 
 and 3 was closed by the owner of No. 2, without 
 objection from' the owner of. No. 3. Held, that 
 the performance of the parol agreement between 
 the owners of Nos. 1, 2 and 3 operated to ex- 
 tinguish the easement by way of an equitable 
 estoppel between the parties, and the owner of 
 No. 3 could not, after acquiring title to No. 4, 
 claim the right of way on. the ground that the 
 parol agreeihent was void. Com. App., 1872, 
 Pope V. 0'Hara,iS'S.T. (3 Sick.) 446. 
 
 24. The use of the word " appurtenances," 
 in the conveyances of store No. 4, from the 
 several owners of Nos. 1, 2 and 3, would not 
 operate to revive the extinguished right of 
 way. lb. 
 
 25. Permission given by the owner of a right 
 of way across another's land, reserved by cov- 
 enant in a deed conveying such land, to ob- 
 struct the same by buildings or other erections, 
 works an extinguishment of the easement, and 
 neither the owner of the domina,nt estate nor 
 his grantee can afterward recall the right. Ct 
 App., 1873, Cartwright v. Maphsden, 53 N. Y. 
 (8 Sick.) 622. 
 
 26. One who conveys to another an alley, re- 
 serving to himself the right to use the same, in 
 common with his grantee, so long as he contin- 
 ues to own the adjoining land, does not lose his 
 easement in the alley by his subsequent convey- 
 ance of the adjoining land to his assignee in 
 voluntary bankruptcy, if the same is afterward 
 reconveyed to him on discontinuance of the 
 
264 
 
 EASEMENT. 
 
 bankruptcy proceedings, he being all the time 
 the owner in equity. Sup. Ct., 1876, Colie r. 
 Jamison, 4 Hun, 284. 
 
 27. Ditch. Where the owner of land changed 
 the natural course of a stream of water thereon 
 by cutting an artificial ditch and making an 
 embankment, so as to carry off the water and 
 prevent it from overflowing a part previously 
 flowed, and afterward conveyed the parcel on 
 which was the ditch to one party, and the other 
 parcel to another party, — Seld that the several 
 grantees each took his portion according to its 
 changed condition, the former burdened with, 
 and the latter relieved from the stream. Sup. 
 Ct., 1872, Roberts v. Roberts, 7 Lans. 53 ; AfE'd, 
 S. C, 55 N. Y. (10 Sick.) 275. 
 
 28. It is the legal right of the grantee whose 
 premises are relieved from the water to keep 
 the ditch in the condition it was in at the time 
 of the grant, and if it becomes out of repair, 
 to restore it, and for that purpose to enter upon 
 the servient premises, doing no unnecessary in- 
 juiy. But he has no right to substantially 
 change the condition of the ditch, so as to cause 
 more water to flow through it in times of freshet 
 or flood than formerly. lb. 
 
 29. He may restore barriers or embankments, 
 which are carried away by floods, to their usual 
 height, with suitable and proper material ; but 
 if he raises them above that heiglit, the owner 
 of the servient estate has the right to reduce 
 them to their proper elevation, but not to wholly 
 destroy them. lb. 
 
 30. Drainage. Where the owner of three 
 houses and lots, the drainage of all of which is 
 effected by means of pipes descending through 
 the cellars, and thence through a large pipe pass- 
 ing under one of the houses to the street sewer, 
 sells and conveys the two houses so drained by 
 the pipe under the third, without any reserva- 
 tion or provision as to the drainage, and retains 
 the third, he holds it subject to the easement in 
 the drain. N. Y. C. P. Chambers, 1875, Hamel v. 
 Griffith, 49 How. 305. 
 
 31. The servitude, in such a case, is apparent, 
 because it might be seen or known on a care- 
 ful inspection by a person ordinarily conver- 
 sant with the subject. lb. 
 
 82. Lateral support. Where a deed of land 
 with covenant for quiet enjoyment, contains a 
 clause reserving to the grantor the right to enter 
 on a certain part thereof, specifically described, 
 and dig and take the clay and sand fit for brick- 
 making therefrom, such clause is a reservation, 
 not an exception, and the doctrine of lateral sup- 
 port, incident to and affecting adjoining lands 
 owned by different proprietors, does not apply 
 thereto, but the grantor can remove such clay 
 and sand from the land specified without leaving 
 a lateral support to the other adjoining land. 
 Com. App., 1874, Ryckman v. Gillis, 57 N. Y. 
 (12 Sick.) 68 ; Rev'g S. C, 6 Lans. 76. 
 
 33. Iiigbts. The English law as to lights has 
 not been adopted in this country. N. Y. Supr. 
 Ct., 1875, Doyle v. Lord, 39 N. Y. Supr. (7 J. 
 & Sp.) 421. 
 
 34. A lessee of a building and its appurte- 
 nances, with covenant for quiet enjoyment only, 
 has no right as against his landlord to have the 
 windows opening out to a vacant space, not in- 
 cluded in his lease, remain unobstructed for 
 the passage of light and air, however long they 
 may previously have been in use. lb. 
 
 ' 36. Where the common owner of two houses 
 and lots, one of which covers its entire lot and 
 has windows looking out upon the rear yard of 
 the other, first conveys the former with the ap- 
 
 purtenances to one party, and afterward the 
 latter to another, the grantee of the latter has 
 no right to close up such windows looking into 
 liis yard. N. Y. C. P., 1875, Havens v. Klein, 49 
 How. 96. 
 
 36. Party -wall. Although land covered by 
 a party wall remains the several property of the 
 owner of each half, yet the title of each owner 
 is qualified by the easement to which the other 
 is entitled. Sup. Ct., 1871, Brooks v. Curtis, 4 
 Lans. 283 ; Aff'd, S. C, 50 N. Y. (5 Sick.) 639. 
 
 37. This easement includes the right of either 
 of the adjacent owners to increase the height of 
 such wall, when it can be done without injury 
 to the adjoining building, and the wall is clearly 
 of sufiicient strength to safely bear the, addition, 
 he being responsible for all damages in case in- 
 jury results. lb. 
 
 38. But the party increasing the height of the 
 wall is not at liberty to construct a roof upon it, 
 when raised, in such a manner as to shed the 
 ice. and water therefrom upon the roof of the 
 other party. lb. 
 
 39. Where a party wall is constructed partly 
 upon the land of each adjacent owner, each of 
 them has the right to use it for the benefit of his 
 own property, but at his own peril, so far as in- 
 jury may result therefrom to his neighbor. N. 
 Y. C. P., 1874, Daly v. Grimley, 49 How. 520. 
 
 40. A flue constructed in such party wall, and 
 partly in each part of it, is subject to the proper 
 use of each owner. lb. 
 
 41. Twenty years' use of such flue raises a 
 presumption of its safety, and any anticipated 
 danger from it may be remedied by an applica- 
 tion to the public authorities. lb. 
 
 42. Adjoining owners, for whose benefit a 
 party wall has been constructed, may use it not 
 only for the support of beams and the construc- 
 tion therein of fire-places and flues, but also to 
 form a complete and perfect junction, in an or- 
 dinary good manner, between it and the exterior 
 walls of the building. Sup. Ct., Nash v. Kemp, 
 49 How. 522. 
 
 43. Where a custom is shown to exist never 
 to bring a party wall out to the line of the street, 
 but to leave a space between it and that line for 
 the front walls of the respective buildings, the 
 portion of the front resting on the wall is no 
 part of the party wall. lb. 
 
 44. The proprietors of a party wall own in 
 severalty the portion standing on their respective 
 lots, but subject to its mutual use for the pur- 
 poses for which it was built, so long as it shall 
 endure. lb, 
 
 45. Where the centre line of a party wall is 
 not upon the line between the lots of the re- 
 spective owners, neither of them has the right, 
 by reason of his interest in the wall alone, to ex- 
 tend the front of his building thereon, or on the 
 land lying in front of it and between it and the 
 street line, beyond the line of his lot. lb. 
 
 46. The front of a party wall may be used to 
 connect therewith the fronts of the adjoining 
 houses, but such use does not necessarily oblige 
 a party to go beyond his boundary line with his 
 front. lb. 
 
 47. It seems that by the use of anchors a party 
 whose land adjoins the party wall may safely 
 connf ct his front thereto without encroaching on 
 the other's land. lb. 
 
 48. Where one of such parties in connecting 
 his front with a party wall extends his front be- 
 yond his own line, the mere fact that the ad- 
 joining owner did not at the time object thereto, 
 does not imply an acquiescence in the appropri- 
 ation ; nor would such acquiescence establish a 
 
EASEMENT— EJECTMENT. 
 
 265 
 
 claim of title to lands, unless it continues for the 
 full term of prescription. lb. 
 
 49. Right of TJiray. A conveyance of part of 
 a public house and the land on which it is situ- 
 ated, by metes and bounds, with a clause express- 
 ing the intention of the grantor to convey a 
 specified number of feet of the building, " to- 
 gether with the use of a lane or passway, 12 
 feet wide, from the green and in rear of the said 
 public house to the north line of the lot abov& 
 deeded, to be kept open for the purpose of pass- 
 ing to and from the rear of said public house to 
 the public common," excepts such 12 feet 
 from the conTeyance, other than for use as a 
 way ; and such exception is made for the benefit 
 of the grantor and his assigns. Sup. Ct., 1872, 
 Rexford v. Marquis, 7 Lans. 249. 
 
 50. A conveyance of land adjoining that pre- 
 viously conveyed, with the use of a way except- 
 ed out of the previous conveyance, subject to 
 the right of the prior grantee to pass over it, 
 " to be kept open as a passway," — Held, to mean 
 that such passway should be kept open for the 
 benefit of the grantor and his assigns. lb, 
 
 51. Separate deeds by the same grantor con- 
 veying or excepting a right of way, will not be 
 construed together in determining the rights of 
 the parties in respect to such way, if they are 
 to different grantees. lb. 
 
 52. The user of a way by one party under a 
 grant, with the acquiescence and recognition of 
 his right by the owner of the land over which it 
 passes, is evidence of the extent of the right, 
 but not of its existence. lb. 
 
 53. The grantee of a right to use a way from 
 a common to the boundary line of a particular 
 lot, cannot lawfully make use of it for communi- 
 cation with another adjoining lot. lb. 
 
 54. Limited right of ■way. One who is en- 
 titled by grant to the use of a way " to be kept 
 open for the purpose of passing and repassing 
 to and from " the premises granted to another 
 point specified, is entitled only to such a right of 
 way as is reasonably necessary and convenient 
 for the purposes of the grant ; and in an action 
 for obstructing such way, a judgment may 
 properly be rendered limiting it to a certain 
 number of feet in height, and allowing it to be 
 covered. lb. 
 
 55. A reservation, in a partition deed between 
 tenants in common of lands lying partly be- 
 tween a highway and a river, and partly on an 
 island in the river, of a right of way " from the 
 
 public highway along the side of sub-lot, 
 
 No. to the river, not less than-^ — feet wide," 
 
 for the use of the owner of the island lot, is not 
 void for uncertainty, although the exact loca- 
 tion and width are undetermined ; but the par- 
 ties interested can locate it by agreement, or by 
 acts, conduct, declarations and acquiescence, in- 
 dicating a practical location, accompanied by 
 user, and such a location may be established by 
 parol proof. Sup. Ct., 1875, Crocker v. Crocker, 
 5 Hun, 587. 
 
 EJECTMENT. 
 
 I. Who can maintain 265 
 
 II. Plaintiff's title 266 
 
 m. Defenses 266 
 
 IV. Evidence i 267 
 
 V. Fbactiob; judgment 268 
 
 I. Who can maintain. 
 
 1. Owner of conditional fee. One holding 
 a conditional fee in land, can maintain eject- 
 ment therefor, before breach of the condition. 
 Sup. Ct., 1874, Candee v. Burke, 1 Hun, 546. 
 
 2. Equitable mortgagee. One who, at the 
 request of a purchaser of land, advances a part 
 of the purchase-money and, as security for its 
 repayment, takes an absolute conveyance of the 
 land from the vendor, the purchaser taking pos- 
 session and occupying the land as his own and 
 making payments on account of the money so 
 advanced, is a mere mortgagee, and cannot 
 maintain ejectment against such purchaser until 
 he has first foreclosed his equity of redemption. 
 Sup. Ct., 1871, Carr v. Carr, 4 Lans. 314 ; AfE'd, 
 S. C, 52N. Y. (7 Sick.) 251. 
 
 3. Neither could he maintain such action, if 
 the relation between the parties was that of 
 trustee and cestui que trust, so long as the latter 
 is not in default. lb. 
 
 4. A vendee of lands, in possession with the 
 assent of the vendor, under a contract which 
 does not fix the time for the payment of the 
 purchase-money, cannot, it seems, be ejected 
 until default in payment after demand. lb. 
 
 5. Heirs. Where several heirs convey land 
 upon a condition subsequent, they cannot sever- 
 ally maintain ejectment for condition broken, 
 to recover their several shares, but their interest 
 is joint, and no less number than the whole can 
 declare a forfeiture, or maintain an action to re- 
 cover possession. Sup. Ct., 1875, Cook v. War- 
 dens, etc. of St. Paul's Church, 5 Hun, 293. 
 
 6. Grantee subject to easement. A 
 grantee of land which is subject to an easement 
 for the support of tlie wall of a building, cannot 
 maintain ejectment against tlie owner of the 
 building, because, although he may establish 
 his title, he cannot be adjudged the immediate 
 possession. Sup. Ct. Cir., 1874, Kurkel v. Haley, 
 47 How. 75. 
 
 7. Mortgagor. Notwithstanding a mortgagee 
 in possession may have received rents and profits 
 sufficient to satisfy the mortgage, the mortgagor 
 cannot maintain ejectment against him until an 
 accounting has been had in a court of equity, 
 and such rents and profits have been actually 
 applied upon the mortgage. Ct. App., 1873, 
 Hubbell V. Moulson, 53 N. Y. (8 Sick.) 225. 
 
 8. Tenant in common. Where one tenant 
 in common of lands conveys a specific portion 
 thereof, although with the knowledge of his co- 
 tenant, the grantee takes only an undivided half 
 of the premises so conveyed, and the devisee of 
 such grantee takes no greater interest. Conse- 
 quently, such devisee, after conveying an un- 
 divided half interest in the premises, has no title 
 to the remaining undivided half, and cannot 
 maintain ejectment therefor. Sup. Ct., 1874, 
 Beal V. Miller, 1 Hun, .390. 
 
 9. Purchaser at tax sales. An actual oc- 
 cupation, by the purchaser at tax sales, of part 
 of the premises included in his deed from the 
 comptroller, draws to it the possession of the 
 whole ; and he can maintain an action to re- 
 cover possession as against a mere intruder or 
 trespasser upon any part thereof, even though 
 the proceedings upon the sale were irregular or 
 his deeds void. Sup. Ct., 1870, Thompson v. Bur- 
 hans, 61 Barb. 260. 
 
 10. In such a case, the regularity of the pro- 
 ceedings of the assessor upon the sale will be 
 presumed. lb. 
 
 11. Against claimant of unoccupied 
 lands. Ejectment can be maintained, under 
 
266 
 
 EJECTMENT. 
 
 the provisions of the statutes, for wild and unoc- 
 cupied premises, against a defendant who as- 
 serts a claim of title thereto ; and in such a case 
 the question is which of the two has the best 
 title to the premises. Sup. Ct. Cir., 1874, Becker 
 V. Howard, 47 How. 423. S. P. Becker v. Hol- 
 dridge, 47 How. 429. 
 
 12. Against heirs of life tenant. A pur- 
 chaser of lands under an execution against tlie 
 reversioner, can maintain ejectment against tlie 
 heirs of a life tenant holding possession after 
 the death of such tenant, without first giving 
 notice to quit, even though the execution was 
 voidable for irregularity. Sup. Ct. Cir., 1872, 
 Nims V. Sabine, 44 How. 252. 
 
 18. Against lessor of person in posses- 
 sion. In an action to recover the possession of 
 premises in the actual occupation of tenants 
 whose landlord claims adversely to the plaintiff, 
 such landlord is a necessary party to a complete 
 determination of the controversy, but the pres- 
 ence of the tenant is not necessary to enable 
 him to litigate the title ; the defect of the non- 
 joinder of the tenant as a defendant, is, there- 
 fore, one wliich may be waived, and it will be 
 waived if the objection is not taken by demur- 
 rer or answer. Ct. App., 1872, Finnegan v. Ca- 
 raher.il N. Y. (2 Sick.) 493; AfE'g S. C, 61 
 Barb. 252. 
 
 14. Where the landlord induced the service of 
 the summons and complaint on himself as sole 
 defendant, by stating to plaintiff's attorney in 
 substance that he lived on the premises, and 
 received and retained the papers ; — Held, that 
 he was estopped thereby from denying in the 
 suit that he was in the actual possession, and 
 was tlie proper party. lb. 
 
 15. Against delinquent tenant. A stat- 
 ute authorizing a landlord to maintain ejectment 
 against a tenant six months in arrears, if he 
 has a subsisting right to re-enter (2 R. S. 505, 
 sec. 30; 2Edm. Stats. 521), does not give sucli 
 action against'those wlio succeed to such tenant, 
 unless, possibly, it be to the whole premises and 
 the whole term. N. Y. Supr. Ct., Sp. T., 1868, 
 Stuyvesant v. Grissler, 12 Abb. N. S. 6. See People 
 ex rel. Grissler v. Stuyvesant, 1 Hun, 102. 
 
 16. Probably such action could be maintained 
 for the recovery of possession of part of the 
 premises, against a person in possession of that 
 part, as assignee, notwithstanding there has 
 been no apportionment of the rent, and without 
 making any such apportionment. lb. 
 
 17. But the action under the statute can be 
 maintained only where the relation of landlord 
 and tenant exists, and the landlord has a sub- 
 sisting right by law to re-enter; and therefore 
 it cannot be maintained where the landlord has 
 regained possession by summary proceedings, 
 the effect of which is to cancel the lease. lb. 
 
 18. If, after so obtaining possession, hfe fore- 
 closes a mortgage of the leaseliold interest given 
 for a loan, and sells the unexpired term he 
 restores the lease, and can have the same rem- 
 edy against the purchaser as he had against the 
 original tenant. lb. 
 
 U. Plaintiff's Title. 
 
 19. 'What title necessary. In an action to 
 recover the possession of real estate, under the 
 provisions of the Code, as in the former actim 
 of ejectment, the plaintiff must recover, if at all, 
 upon tlie strength of his own title, and not upon 
 the weakness of that of his adversary. Sup. Ct., 
 1872, Richardson v. Fuller, 63 Barb. 67. S. P. 
 Roggen v. Avery, 63 Barb. 65. 
 
 30. Ejectment cannot be maintained by one 
 whose title is founded on a deed in trust to sell 
 the lands and pay over the proceeds to the 
 grantor, such deed not creating a valid trust, or 
 vesting in him the legal title. • Sup. Ct., 1875, 
 Heermans v. Robertson, 3 Hun, 464. 
 
 21~. Where land was conveyed by deed to a re- 
 ligious corporation, reserving to the grantor the 
 right to grant to a certain company the right 
 " to build a basement story on the premises, — 
 for the purpose of keeping a select and other 
 schools in, only," and a conveyance was made to 
 trustees for that purpose, and a basement was 
 built by them, and a church building was erect- 
 ed over it by such religious corporation, and the 
 two portions of the building were occupied for 
 those several purposes for years ; and afterward 
 the consistory of the church corporation passed 
 a resolution authorizing a certain portion of the 
 members to separate and form a distinct church 
 and congregation, and that the church building 
 so before erected and occupied " should there- 
 after belong to, and be the exclusive property 
 of that part of the congregation," and in pur- 
 suance of such resolution that part of the 
 congregation entered upon and occupied the 
 church building for more than 20 years, having 
 become separately incorporated, — Held, that 
 such latter corporation had not such title to the 
 basement as would enable them to maintain 
 ejectment therefor against mere intruders, al- 
 though its use for schools had been discon- 
 tinued. MiLLEK, P. J., dissents. Sup. Ct., 1871, 
 Reformed Church of Gallupville v. Schoolcraft, 6 
 Lans. 206. 
 
 in. Defenses. 
 
 22. Advancement. In an action of eject- 
 ment to recover an undivided'share of premises 
 as one of the heirs-at-law of an intestate, who 
 died seized thereof, the defendant can avail him- 
 self. of an advancement made to the plaintiff, 
 only by way of equitable defense ; and, to make 
 out a complete equitable defense, under the 
 statute (1 Edm. Stats. 705), the defendant must 
 both aver and prove, not only the conveyance by 
 way of advancement, but also that such .ad- 
 vancement was equal or superior to the share 
 which the plaintiff would have been entitled to 
 receive out of the real and personal estate of 
 the deceased. Sup. Ct., 1872, Bell v. Champlain, 
 64 Barb. 396. 
 
 28. Assignment of tenancy. It is no de- 
 fense to an action of ejectment, that the defend- 
 ant is in by virtue of an assignment from a 
 tenant at will, or by sufferance, of the plaintiff. 
 Such a tenant has no estate or interest which 
 can be granted by him to another. Ct. App., 
 1871, Reckhow v. Schanck, 43 N. Y. (4 Hand,) 
 '448. 
 
 24. A conveyance purporting to grant only the 
 unexpired term of a lease issued by a municipal 
 corporation on a sale for assessments, and pos- 
 session under it however long continued, do not 
 give title ; but a defendant not claiming under 
 such title, must, upon proof of rightful title in 
 the plaintiff, show the validity of his lease and 
 of his possession under it, otherwise it will not 
 avail him as a defense. Ct. App., 1874, Bedell 
 V. SKaw, 59 N. Y. (14 Sick.) 46. 
 
 25. A comptroller's deed, on a sale for 
 taxes, of lands described as " lying north of and 
 adjoining to township No. 47 of T & C's pur- 
 chase," bounded by the " north bounds of said 
 township," is no justification of a possession of 
 land lying south of such north bounds, and no 
 
EJECTMENT. 
 
 267 
 
 defense to an action of ejectment therefor. Sup. 
 Ct., 1870, Thompson v. Burhans, 61 Barb. 260. 
 
 26. Deed intended to convey premises. 
 In an action of ejectment the defendant can set 
 up the eq^uitable defense, that the land in con- 
 troversy was intended to be conveyed to him by 
 a deed from the plaintiff, but by a mistake in 
 the description was not included therein, with- 
 out asking for a reformation of sucli deed, and 
 the same facts whicli would entitle him to a 
 reformation', in an action therefor, will establish 
 his equitable right to the possession, and as 
 effectually defeat the action as would the legal 
 title. Ct. App.,'1875, Hoppough v. Struble, 60 
 N. Y. (15 Sick.) 430. 
 
 27. Where such equitable defense is set up, 
 the court should adjust the equitable rights of 
 both parties and give the defendant no more 
 than he is entitled to, and if there is an error in 
 the deed to the disadvantage of the plaintiff, 
 that also should be corrected for his benefit. 
 lb. 
 
 28. Deed ; a mortgage. It is an equitable 
 defense to an action of ejectment, that the 
 plaintiff received the legal title as a security for 
 moneys advanced by him to the defendant, who 
 was at the time in possession of the premises 
 under a contract of sale, and had made partial 
 payments on the price and permanent improve- 
 ments on the premises, to enable him to pay up 
 the balance of the purchase-money, agreeing to 
 execute a written contract to convey the prem- 
 ises to such defendant on repayment of the 
 money so advanced with interest by a time 
 specified; which written contract the plaintiff 
 afterward refused to execute. Ct. App., Dodge 
 V. Wellman, 43 How. 427 ; Aff'g S. C, 42 Barb. 
 890. 
 
 29. So gross a fraud will not be permitted, but 
 equity will afford the defendant protection upon 
 the principles which govern it in the enforce- 
 ment of agreements which have been in part 
 performed ; and there is nothing in the statute 
 of frauds which in any degree interferes with its 
 jurisdiction in such a case. lb. 
 
 30. Mistake in deed. In an action of eject- 
 ment, where the plaintiff claims under a title 
 derived from the defendant, and the latter sets 
 up as a defense a. mistake in including the dis- 
 puted premises in his deed, the court will not 
 render a judgment altering the legal effect of 
 the original conveyance unless it has before it 
 the same facts and parties as would enable it to 
 pronounce a decree for reformation. Sup. Ct., 
 1871, Cramer v. Benton, 4 Lans. 291 ; S. C, 60 
 Barb. 216. S. P., Hicks v. Sheppard, 4 Lans. 
 335. 
 
 31. It seems that such a defense is barred by 
 the statute of limitations in 10 years from the 
 time the claim accrued. lb. 
 
 32. Right to specific performance. In 
 an action of ejectment against a person in pos- 
 session of lands under a contract of sale .by his 
 vendor or the grantee, of such vendor, the de- 
 fendant can assert the same equitable rights by 
 answer as he could if a party to an action for 
 the specific performance of the contract. Com. 
 App., 1874, Cavalli v. Allen, 57 N. Y. (12 Sick.) 
 508. ' 
 
 33. If, at the time of his conveyance, such 
 vendor was indebted to the defendant upon an 
 independent, liquidated claim, to an amount 
 sufficient to balance the unpaid purchase-money, 
 he can set it up and ask to have it applied as 
 payment, and that the contract be specifically 
 performed. lb. 
 
 84. Possession as partner. In an action 
 
 by the sole devisee of a deceased person to re- 
 cover the possession 'of lands, the defendant 
 may set up the equitable defense, that the land 
 was bought as partnership property by the de- 
 ceased and the defendant, as partners, and the 
 title taken in the name of the deceased, that 
 being the firm name, and that he has paid his 
 share toward the purchase, and expended money 
 for improvements, and is in possession as part- 
 ner ; and parol proof is admissible to establish 
 such defense. Sup. Ct., 1874, Thompson v. Eg- 
 bert, 1 Han, 484. 
 
 85. Title in another. A sheriff's certificate 
 of the sale of lands for taxes, held by a party 
 other than the defendant, does not show title 
 out of the plaintiff, and is no defense in eject- 
 ment. Ct. App., 1870, Oruger v. Dougherty, 43 
 N. Y. (4 Hand,) 107. 
 
 IV. Evidence. 
 
 36. Deed. A deed executed by a party m 
 whom the legal title was vested, and expressing 
 a valuable consideration, though reciting that it 
 was executed by virtue of the statute concern- 
 ing voluntary assignments, pursuant to the 
 application of an insolvent and his creditors, and 
 in pursuance of an order made by a county 
 judge, need not be supported by proof of the 
 insolvency proceedings, but is admissible in evi- 
 dence without them. Com. App., 1873, Rockwell 
 V. Brown, 54 N. Y. (9 Sick.) 210 ; Rev'g 42 How. 
 226 ; 11 Abb. N. S. 400 ; 33 N. Y. Supr. 380. 
 
 37. Deed obtained by fraud. In an action 
 of ejectment, the defendant claimed in his 
 pleadings, and offered to prove on the trial that 
 he bid off the lands in controversy at a master's 
 sale in chancery, that he agreed with one W, 
 under whom plaintiff claimed, to let him have 
 the lots at the same price, in consequence of 
 which the master's deed was made out directly 
 to W and delivered to defendant, and that W 
 obtained possession of the same by fraud, and 
 upon a promise of return, — Held, that the evi- 
 dence was competent. Ct. App., 1874, Ritter v. 
 Worth, 58 N. Y. (13 Sick.) 627. 
 
 38. Grantor non compos mentis. Where 
 defendant in an action for the recovery of real 
 property, claims title under a deed from one 
 who, at the time of its execution, was non 
 compos mentis, such deed being void, the fact of 
 the grantor's incapacity may be shown by the 
 plaintiff for the purpose of defeating the claim 
 under it, although no fraud was practised to ob- 
 tain its execution, and his incapacity had not 
 previously been legally or judically established 
 or declared. Com. App., 1872, Vim Deusen v. 
 Sweet, 51 N. Y. (6 Sick.) 378. 
 
 89. It seems, that where the plaintiff claims as 
 devisee of such grantor, the evidence would 
 be proper, although the deed were voidable 
 merely. lb. 
 
 40. Patent. Proof of a patent from the State 
 and mesne conveyances from the patentee to him- 
 self, is prima facie sufficient to entitle the plain- 
 tiff to recover, where the premises are unoc- 
 cupied. Sup. Ct. Cir., 1874, Becker v. Howard, 
 47 How. 423. S. P., Becker v. Holdridge, 47 How. 
 429. 
 
 41. The defendants, in such a case, may show 
 a prior grant by the State, or a permanent out- 
 standing title in a stranger, one that is vital and 
 operative, but they must also show a lawful 
 claim and right in themselves under such grant 
 or title. lb. 
 
 42. A comptroller's deed upon a sale of land for 
 taxes, issued after the filing of Us pendens, and 
 
268 
 
 EJECTMENT— ELECTIONS. 
 
 commencement of an action to foreclose a prior 
 subsisting mortgage, in which all persons proper 
 and necessary were made parties, is sufficient to 
 establish title in the purchasers at the tax sale, 
 subject only to the right of the mortgagee to re- 
 deem. S. C, 4 Hun, 359. 
 
 43. Prior po^ession. As against a defend- 
 ant in possession under a title which is invalid, 
 e. g., a void tax title, a plaintiff in ejectment 
 may recover upon proof of prior occupation and 
 use, without any proof of paper title in himself 
 and ouster by the defendant. Sup. Cf., 1871, 
 Hopkins v. Mason, 42 How. 151 ; S. C, 61 Barb. 
 469. 
 
 V. Peactice ; judgment. 
 
 44. Notice of lis pendens. The filing of no- 
 tice of lis pendens in an action of ejectment is not 
 necessary in order to give the judgment a conclu- 
 sive effect against purchasers acquiring title 
 through the defendant subsequent to the com- 
 mencement of the action ; nor, inasmuch as a re- 
 covery can only be had upon the legal title, would 
 it seem necessary to prove such filing to bind 
 a purchaser pendente lite. Ct. App., 1872, 
 Sheridan v. Andrews, 49 N. Y. (4 Sick.) 478 ; 
 Afi'g S. C, 3 Lans. 312. 
 
 45. Judgment. In an action of ejectment for 
 a parcel of land, claimed by plaintiff to con- 
 stitute the north portion of township 47 in 
 T & C's purchase, where the defendant admits 
 possession, and claims title to a gore of land 
 between the north line of said township 47, and 
 the south line of the M purchase, and the 
 referee found that said township 47 extended to 
 the south line, of the M purchase, and there was 
 no gore, the plaintiff is entitled to judgment, 
 notwithstanding the defendant did not claim any 
 portion of said township. Sup. Ct., 1870, Thomp- 
 son V. Burhans, 61 Barb. 260. 
 
 46. A plaintiffin ejectment, whose title is sub- 
 ject to an easement for the support by a party 
 wall wholly on his premises, of the beams of an 
 adjoining house, if entitled to maintain the 
 action, can recover only the fee subject to 
 the easement, and the verdict, or finding, and the 
 judgment, should specify the nature and extent 
 of his interest. Ct. App., 1872, Rogers v. Sin- 
 sheimer, 50 N. Y. (5 Sick.) 646. 
 
 47. Permanent improvements. If a party 
 who takes possession of premises in good faith, 
 under an assessment lease, makes valuable per- 
 manent improvements thereon, the value thereof 
 should, it seems, be allowed to him, or to a defend- 
 ant claiming under him, in reduction or extin- 
 guishment of damages, in an action of ejectment 
 for such premises. Ct. App., 1874, Bedell v. 
 SAau), 59 N. Y. (14 Sick.) 46. 
 
 48. Rents and profits. In an action to 
 recover possession of real estate, where the com- 
 plaint merely asks for the possession and 
 damages for withholding, the plaintiff is not en- 
 titled to recover rents and profits, that being 
 a separate and distinct cause of action ; and evi- 
 dence of the value of the use and occupation is 
 therefore inadmissible. Com. App., 1874, Lamed 
 V. Hudson, 57 N. Y. (12 Sick.) 151. 
 
 49. Where the complaint does not state a cause 
 of action for the rents and profits, it cannot be 
 amended by inserting such statement on or 
 after the trial. lb. 
 
 60. Effect of Judgment. Under 2 R. 
 S., 309, sec. 38, a judgment in ejectment 
 rendered by default is, from and after three 
 years from the time of docketing in the 
 court where rendered, conclusive upon the 
 
 defendant and upon all persons claiming 
 from or through him by title accruing after the 
 commencement of the action. The docketing 
 under the act of 1840, in the county clerk's 
 office, is not essential to its conclusiveness, but is 
 only required for the purpose of making a 
 money, judgment alien on the debtor's real estate, 
 and as a preliminary to the issuing of an execu- 
 tion. Ct. App., 1872, Sheridan v. Andrews, 49 
 N. Y. (4 Sick.) 478 ; Affg S. C, 3 Lans. 312. 
 
 61. But where, after the entry of sucli a judg- 
 ment, a person enters under title acquired prior 
 thereto from some one other than the defendant, 
 the judgment is not conclusive, nor even evi- 
 dence against him, though he may, after judg- 
 ment, acquire a title from the defendant. lb. 
 
 52. Writs of possession are analogous to 
 executions for the sale of real estate, and like 
 them may be fully= executed after the return 
 day named therein ; and it will be presumed as 
 to either, that the sheriff began the execution of 
 the process within its lifetime. Sup. Ct., 1874, 
 Witbeck v. Van Rensselaer, 2 Hun, 65. 
 
 53. The time for redemption from a writ of 
 possession, under 2 R. S. 606, sec. 33, 34 (2 
 Edm. Stats. 521), begins to run from the time 
 the judgment and writ have beenfuUy executed, 
 although such execution may have been in- 
 formal, lb. 
 
 54. New trial. The statutory provision 
 allowing a new trial to the unsuccessful party in 
 ejectment (2 E. S. 309 ; 2 Edm. Stats. 318), has 
 no application to an action by an heir, under 
 ch. 238, Laws 1853 (2 Edm. Stats. 503), to test 
 the validity of a devise of real estate ; such 
 action having none of the characteristics or 
 effects of an action of ejectment. Ct. App., 
 1871, Marvin v. Marvin, 11 Abb. N. S.102. 
 
 55. Restitution after judgment set aside. 
 If, after the plaintiff has been put in the actual 
 possession of real property under a judgment 
 regularly entered, the judgment and execution are 
 set aside on application of the defendant, his 
 proper remedy, under the Code, to obtain restora- 
 tion of the property, is to apply to the court 
 at Special Term for an order to show cause why 
 possession should not be restored to him ; and 
 an order granted at the hearing thereon is suffi- 
 cient authority to restore possession to him, and 
 disobedience thereof may be punished as a con- 
 tempt. Sup. Ct., 1872, Dawley y. Brown, 43 
 How. 17. 
 
 56. The insertion in an order for the restora- 
 tion of the premises, in such a casej of an in- 
 junction clause, restraining the plaintiff from 
 entering into or interfering with the possession 
 of the premises, and restraining him from culti- 
 vating or otherwise using them, is unauthorized 
 and irregular. After restoration the defendant's 
 remedy would probably be by action for any 
 illegal entry or injury to the premises by plain- 
 tiff. S.C, 43How. 22. 
 
 ELECTION OF ACTIONS. 
 See Actions. 
 
 ELECTIONS. 
 
 1. Canvassers, powers of. The powers and 
 duty of the county board of canvassers are de- 
 rived exclusively from the statute, and their 
 acts are purely ministerial. They are not 
 
EMBLEMENTS— EQUITY AND EQUITABLE RIGHTS. 269 
 
 authorized to institute any inquiries as to the 
 authenticity of the returns, but aire to take those 
 produced before them, if regular on their face, 
 and determine the result therefrom, or, if not reg- 
 ular on their face, return them to the Inspectors 
 for correction. Sup. Ct., Sp. T., 1871, FeU's 
 Case, 11 Abb. N. S. 203. 
 
 2. Votes for ineligible person. If a ma- 
 jority of the electors, through ignorance of the 
 law or the fact, vote for a person who is in- 
 eligible to the office, their votes are not nulli- 
 ties, but the election is a failure, and a new 
 one must be had. The office cannot be given 
 to the person having the next liighest number 
 of votes. Ct. App., 1872, People ex rel. Furman 
 V. Clute, 50 K Y. (5 Siclt.) 481 ; Rev'g S. C, 63 
 Barb. 356 ; 12 Abb. N. S. 399. 
 
 3. A minority of the electors may elect to an 
 office, if the majority either decline to vote, 
 or vote for one who is ineligible, knowing of 
 his disqualification ; but such knowledge must be 
 not only of the disqualifying fact, but also of its 
 legal effect, and must be brought home to him 
 so clearly that his giving his vote to such per- 
 son will indicate an intent to waste it, in order to 
 render his vote a nullity. lb. 
 
 EMBLEMENTS. 
 See Landlord and Tenant. 
 
 EMINENT DOMAIN. 
 
 1. All lands in this State are subject to its 
 right of eminent domain, whenever the exigency 
 for its exercise arises, and no exemption 
 grows out of the mere fact of such property 
 being owned and used by a corporation. Sup. 
 Ct., 1875, N. Y. Cent. &■ Hud. Riv. R. R. Co. v. 
 Metropolitan Gas Light Co., 5 Hun, 201 ; Aff'd by 
 Ct. App. 
 
 2. Legislative control over. The mode of 
 exercising the right of eminent domain, in the 
 absence of any constitutional provision prescrib- 
 ing a contrary course, is within the discretion of 
 the legislature ; and there is no limitation upon 
 the power of the legislature in that respect, if 
 the purpose be a public one, and just compen- 
 sation be paid or tendered to the owner for the 
 property taken. U. S. Sup. Ct., 1874, Secomb v. 
 Milwaukee §• St. Paul Ry. Co., 49 How. 76. 
 
 3. The taking of private property for the con- 
 struction of a railroad is a public necessity ; and 
 a railroad company having a corporate exist- 
 ence, may exercise the power of eminent do- 
 main, if authorized to do so by statute. lb. 
 
 4. If the use to which lands are to be appro- 
 priated is public, the legislature, or, where it 
 has delegated the power to a municipality, or to 
 public officers or agents, the instrumentality 
 which it employs, is the sole judge of the neces- 
 sity for the appropriation, and it may not be 
 questioned by the courts unless the enactment 
 specially provides otherwise. Ct. App., 1873, 
 In matter of Fowler, 53 N. Y. (8 Sick.) 60. 
 
 5. Who may exercise. A contractor with 
 the State for enlarging a canal, has not, by vir- 
 tue of his contract, such a delegation of sover- 
 eign power as that he can, of his own motion, 
 confiscate private property to the public use, 
 permanently or temporarily. Ct. App., 1874, 
 St. Peter v. Denison, 58 N. Y. (13 Sick.) 416^ 
 
 6. The authority conferred by the general 
 
 statutes upon the canal commissioners, to enter 
 upon and take possession of lands of an individ- 
 ual for the construction of the canals, is person- 
 al, and cannot be delegated unless there be 
 special power of substitution. lb. 
 
 7. Ho-w to be exercised. While the law 
 demands a strict compliance with every require- 
 ment of a statute by which an individual may 
 be divested of his property against' his will, 
 especially such as are essential to his protection, 
 it looks to the substance rather than the form ; 
 and if there be a substantial compliance with 
 every essential condition of the statute, it is 
 sufficient, and the power will be duly exercised. 
 Ct. App., 1873, Matter of Commissioners of Wash- 
 ington Park, 52 N. Y. (7 Sick.) 131. 
 
 8. Right to discontinue proceedings. 
 WUere a public body or pubhc officers are invest- 
 ed with the right of eminent domain for purely 
 public purposes, they may be permitted to discon- 
 tinue proceedings instituted with a view to acquir- 
 ing title to lands, at any time before rights result- 
 ing therefrom have become vested in the property 
 owners ; and no such rights are vested until 
 final award to them in the nature of a judg- 
 ment for their compensation. Ct. App., 1874, 
 In the matter of the Commissioners of Washington 
 Park, 66 N. Y. (11 Sick.) 144. Eev'g S. C, 15 
 Abb. N. S. 148. 
 
 EMPLOYE. 
 
 1. Who is. The term " employe," in its usual 
 and ordinary sense, is more comprehensive than 
 the terms laborer and operative, including every 
 one who renders services to another upon his 
 employment ; and an order requiring the receiv- 
 er of a corporation to pay debts " owing to 
 laborers and employes," makes it his duty to 
 pay a claim of an attorney for professional ser- 
 vices rendered under the employment of such 
 corporation. Ct. App., 1874, Gurnev v. Atlantic 
 and Great Western Ry. Co., 58 N. Y; (13 Sick.) 
 358. 
 
 ENGLISH LAWS. 
 
 1. The ecclesiastical Islvt of England is no 
 part of the law of this State, except so far as it 
 was established by the statutes and resolutions 
 of the colony of New York. It cannot justify 
 the issuing of letters testamentary by a surro- 
 gate to a person not named in a will. Sup. Ct., 
 1874, Hartwell v. Wandell, 2 Hun, 262. 
 
 ENTITLING PAPERS. 
 See Pleading; Practice. 
 
 EQUITABLE MORTGAGE. 
 See Mortgage. 
 
 EQUITY AND EQUITABLE EIGHTS. 
 
 1. Equality of Equities. There is no supe- 
 rior equity in favor of a grantor, whose deed is 
 
270 
 
 EQUITY AND EQUITABLE RIGHTS. 
 
 voidable for duress, against a purchaser for 
 value without notice. Sup. Ct., 1872, Rexford 
 V. Rexford, 7 Lans. 6. 
 
 2. Although as between parties having equal 
 equities, the prior equity must prevail, yet, if 
 the party having the subsequent equity clothes 
 himself with the legal title before he has notice 
 of the prior equity, such legal title must prevail, 
 lb. 
 
 3. Who seeks equity most do equity. 
 In an action to restrain the defendant from cut- 
 ting off the water granted by his ancestor to the 
 plaintiff, where it appears in the course of the 
 trial that the act complained of was intimately 
 connected with, if not caused by, the wrongful 
 act of the plaintiff in erecting machinery upon 
 the lands of the defendant adjoining his own 
 and using the water for propelling it without 
 right, the court may properly apply this rule, 
 by modifying an injunction granting plaintiff 
 the relief asked for, so as to restrain him from 
 using such machinery. Ct. App., 1871, Comstock 
 V. Johnson, 46 N. Y. (1 Sick.) 615. 
 
 4. Equitable relief will not be granted in favor 
 of one claiming lands under a warranty deed 
 from the judgment debtor, against one who pur- 
 chased a judgment, under an arrangement with 
 the judgment debtor, and for the purpose of en- 
 forcing, by a sale on execution for the benefit 
 of the debtor, the lien of such judgment on such 
 lands, and who has sold the lands under it and 
 bid them in and taken a sheriff's deed in his own 
 name, unless the party seeking such relief first 
 repays the sum expended in the purchase of the 
 judgment and the expenses of the sale. Ct. 
 App., 1876, Carnes r. Piatt, 59 N. Y. (14 Sick.) 
 405; Aff'g S. C, 38 How. 100; 7 Abb. N. S. 42; 
 1 Sweeny, 140. 
 
 5. This condition will be enforced whether the 
 relief sought is affirmative, or restraining and 
 negative merely. lb. 
 
 6. Effect of laches. It is only where rights 
 have been acquired which it would be unjust to 
 disturb, that a court of equity will refuse relief 
 in favor of an equitable claim, on account of the 
 neglect or laches of the plaintiff, when a less 
 period has elapsed than the corresponding one 
 fixed by the statute of limitations. Ct. App., 
 1874, Piatt V. Piatt, 58 N. Y. (13 Sick.) 646. 
 
 7. A party cannot be charged with laches, 
 who is ignorant of his rights, or who, by reason 
 of the obscurity of the transaction, must with 
 pains-taking gather the facts or the evidence of 
 them upon which the successful prosecution of 
 the action must depend. lb. 
 
 8. It is not sufficient to authorize a court of 
 equity to grant relief against a judgment, that 
 it is shown that the claim upon which the judg- 
 ment was obtained was unfounded, or that 
 there was a good defense to the action,- or that 
 the court erroneously decided the law, or that 
 the defendant omitted to avail himself of his 
 defense, if before the judgment was rendered 
 the facts were known, or might by the exercise 
 of reasonable diligence have been ascertained 
 by him. If, when sued, he omits to make his 
 defense, he is in general concluded by the judg- 
 ment. Ct. App., 1875, Stilwell v. Carpenter, 59 
 N. Y. (14 Sick,) 414. 
 
 9. Lapse of time will not of itself, in the ab- 
 sence of statutory regulation, bar an action for 
 the reformation of an instrument on the ground 
 of mistake. Ct. App., 1872, Andrews v. Gillespie, 
 47 N. Y. (2 Sick.) 487. See Reforming Instru- 
 ments. 
 
 10. Action to recover deed. An action 
 in equity is the proper remedy to recover the 
 
 possession of a deed constituting |the paper title 
 to property in Ireland, there being no adequate, 
 remedy at law in such a case. , Sup, Ct., Sp. T., 
 1873, Browne v. Cochran, 46 How. 427. 
 
 11. Agreement to secure. Equity will en- 
 force an agreement to secure a debt by pledge 
 or mortgage of property, and all persons who 
 take the property agreed to be given as secur- 
 ity, with knowledge of the previous transac- 
 tions, will be held to have taken it impressed 
 with the trust. ■ N. Y. C. P., Thornton v. St. Paul 
 and Chicago Ry. Co., 45 How. 416. 
 
 12. Assessments, relief against. The effect 
 of ch. 580, Laws of 1872, is to deprive courts of 
 equity of the power, in suits subsequently com- 
 menced, to declare void and cancel of record, 
 and enjoin the collection of assessments which 
 were originally invalid and were not validated 
 by force of that act, so long as the assessment 
 is not sought to be enfoi:ced by the taking of the 
 property. N. Y. Supr. Ct., 1876, Astor v. Mayor, 
 etc. of New York, 39 N. Y. Supr. (7 J. & Sp.) 
 120. 
 
 13. The mere entry of the assessment in the 
 office of the comptroller of the city, among the 
 entries of assessments confirmed, is not a pro- 
 ceeding for its collection, entitling the party to 
 that remedy. lb. 
 
 14. Although a court of equity will not set 
 aside an assessment on the mere ground of mis- 
 take ; or for irregularities in confirmation that 
 render the proceedings not void but voidable 
 merely; or for illegality clearly appearing on 
 the face of the proceeding ; — yet, where an as- 
 sessment appears to be valid on the face of the 
 record, or where it is an apparent vaUd lien of 
 record upon real estate, and such record is, by 
 statute, presumptive evidence of the facts there- 
 in contained, and proceedings have been insti- 
 tuted for the collection of the assessment, under 
 which such real estate is liable to be sold, equity 
 will interpose in favor of a party who has not 
 waived his rights, to set aside the same as a 
 cloud upon the title. N. Y. Supr. Ct., 1874, As- 
 tor V. Mayor, etc. of New York, 37 N. Y. Supr. (6 
 J. & Sp.) 639. 
 
 15. The exercise by the Supreme Court of the 
 power conferred by statute to pass upon the 
 proceedings of commissioners of estimate and 
 assessment, did not, previous to the enactment 
 of ch. 312, Laws of 1874, take away the power 
 of courts of equity to remove clouds upon title, 
 lb. 
 
 16. Cancellation of contract. The fact 
 that a party has a good defense to an action at 
 law on a contract is no bar to an equitable ac- 
 tion to compel its cancellation and surrender, 
 where such defense does not appear on the face 
 of the contract, but must be shown by extrinsic 
 evidence. Ct. App,, 1871, McHenry v. Hazard, 
 45 N. Y. (6 Hand,) 580. • 
 
 17. Even after suit commenced against him, 
 such party may bring an action in equity, where 
 he would otherwise be subjected to the expense 
 of a double litigation and the hazard of a double 
 recovery. So held, where two persons had 
 brought separate suits against the party de- 
 frauded, each claiming as assignee of the same 
 obligation. lb. 
 
 18. — notes. A married woman, not en- 
 gaged in any business, who makes and indorses 
 promissory notes for the accommodation of her 
 husband, not expressly charging her separate 
 estate thereby, has an adequate remedy at law 
 against such notes by way of defense to any 
 action brought thereon, and, therefore, cannot 
 maintain an action in equity to have the same 
 
EQUITY AND EQUITABLE RIGHTS. 
 
 271 
 
 cancelled, and herself relieved from liability 
 thereon, and to restrain the holder from main- 
 taining actions thereon. N. Y. Supr. Ct., 1875, 
 Hoffman v. Treadwell, 39 N. Y. Supr, (7 J. & 
 Sp.) 183. 
 
 19. — policy. A court of equity has juris- 
 diction to order the surrender and cancellation 
 of a policy of insurance, alleged to have been 
 obtained by fraud, and laeld by the promisee, 
 upon which no action has been brought. Sup. 
 Ct., Sp. T., 1874, Globe Mut. Life Ins. Co. v. 
 Reals, 48 How. 502. 
 
 20. Whether it shall exercise that power de- 
 pends upon a sound discretion applicable to all 
 the circumstances of the case made by the 
 proofs, and should be determined on the trial, 
 rather tlian upon a preliminary examination of 
 the complaint on demurrer. lb. 
 
 21. Confusion of boundaries. Where, by 
 reason of the uncertain and confused descrip- 
 tions of the portions of a large tract of land con- 
 veyed by the owner to different grantees, the 
 proper boundaries between them cannot be as- 
 certained with reasonable certainty by one 
 party alone, o?except by tlie judgment or opin- 
 ions of men, after an examination of the deeds 
 and the premises, with a surveyor, aided per- 
 haps by the examination of Witnesses, an action 
 will lie in equity to have such boundaries ascer- 
 tained and fixed ; and in sucTi action commis- 
 sioners may be appointed to ascertain and fix 
 them, and mark their corners and lines by prop- 
 er monuments. Sup. Ct., 1872, Boyd v. Dowie, 
 65 Barb. 237. 
 
 22. Deed, set±ing aside. Where a son, 
 just after reaching his majority, conveyed to 
 his mother, individually, his share in his father's 
 estate, and she as administratrix of such estate 
 gave him a bill of sale of a store of goods be- 
 longing to the estate for the same expressed 
 consideration, no money passing between them, 
 — Held, that he was still liable to his father's es- 
 tate for the value of the goods, and there was 
 therefore no consideration for the deed ; and for 
 that reason, and al«o because of the apparent 
 perversion of the relations between the parties 
 to inequitable purposes, equity would set aside 
 the deed from the son to his mother. N. Y. 
 Supr. Ct., Sp. T., 1872, Powers v. Powers, 48 
 How. 389. 
 
 23. A court of equity will not interfere to set 
 aside a deed on the ground of insanity or undue 
 influence, unless it can at the same time do jus- 
 tice to the defendant. Sup. Ct., 1872; Canfield v. 
 Fairbanks, 63 Barb. 461. 
 
 24. Thus, where the defendant has labored 
 for his father many years, without compensa- 
 tion, relying upon the father's promise that he 
 should have the farm on which he labored, in 
 the end, either by will or deed, the court will 
 not, after the death of the father, and when the 
 defendant has no remedy at law to obtain com- 
 pensation, set aside a deed given in pursuance 
 of such contract, on the ground of the grantor's 
 insanity. lb. 
 
 25. Forfeiture, relief against. Equitable 
 relief against a forfeiture may be granted, upon 
 full compensation being made to' the party en- 
 titled to enforce it. N. Y. Supr. Ct., Sp. T., 1873, 
 Giles V. Austin, 46 How. 269 ; AfE'd, S. C, 38 N. 
 Y, Supr. (6 J. & Sp.) 215. Eev'g 34 N. Y. Supr. 
 (2 J. & Sp.) 171. 
 
 26. A clause in a lease giving to the landlord 
 a right of re-entry for the non-payment of rent 
 or taxes is treated in equity as a security for 
 the payment of moneys, and precise compensa- 
 tion can be made for the breach thereof, and a 
 
 forfeiture thereby incurred is relievable in 
 equity. lb. 
 
 27. A tenant who has paid the delinquent 
 taxes since the commencement of a suit in eject- 
 ment against him by the landlord on the ground 
 of the forfeiture, although he might be permit- 
 ted to interpose that as a defense by supple- 
 mental answer, or be granted a stay of proceed- 
 ings therein after judgment, yet is not obliged 
 to seek rehef in that action, but may maintain 
 an equitable action for that purpose. lb. 
 
 28. Relief granted in such an action upon 
 payment of the rent since the forfeitures with 
 interest, and the costs and expenses of both ac- 
 tions, lb. 
 
 29. If a life insurance company declares a 
 policy lapsed and void by reason of the non- 
 payment of premiums, after having waived that 
 default, and refuses to receive premiums ten- 
 dered within the time to which payment was 
 extended, equity will relieve the policy holder ; 
 and in an action for that purpose will decree the 
 policy to be in life and full force, notwithstand- 
 ing he may then have no right of action on the 
 policy itself. N. Y. Supr. Ct., 1873, Hayner v. 
 Am. Popular Life Ins. Co., 36 N. Y. Supr. (4 J. & 
 Sp.) 211 ; modifying 35 Id. 266. 
 
 30. In such action the court cannot properly 
 require the company to issue and deliver to the 
 plaintiff an equitable full paid-up policy, as al- 
 ternative relief. lb. 
 
 31. Fraud, relief against. The jurisdic- 
 tion of courts of equity to grant relief in cases 
 of fraud and trust was not taken away by the 
 statute relative to creditors' bills. Sup. Ct.. 
 1873, Kamp v. Kamp, 46 How. 143. 
 
 32. A divorced wife, in whose favor an order 
 for alimony has been granted, can maintain an 
 action in equity to set aside as fraudulent a con- 
 veyance made by the husband apparently for 
 the purpose of preventing the enforcement of 
 such order-; she having no other adequate rem- 
 edy, lb. 
 
 33. Where a person to whom a note is trans- 
 ferred in payment of a precedent debt, and in 
 fraud of the rights of the maker, transfers it to 
 bona fide holders who obtain a judgment thereon, 
 and afterwards takes an assignment of the judg- 
 ment, he takes such judgment subject to the 
 rights of the maker as he did tlie note, and equity 
 will relieve the maker against the enforcement 
 of the judgment by the assignee. Sup. Ct., 1871, 
 Coleman v. Lansing, 4 Lans. 70. 
 
 34. Mistake, relief against. Equity will 
 relieve against an act done or contract made 
 under a mistake or in ignorance of a material 
 fact. Sup. Ct., 1874, Boyd v. De La Montaigne, 
 47 How. 433; S. C, 1 Hun, 696. 
 
 35. Thus, a transfer of property, made by a 
 wife to her husband, because of representations 
 made to -her by him that a debt, in fact his own, 
 could be enforced against her and her property, 
 which representation was untrue, although the 
 hiisband may not have known it to be so, will 
 be set aside in equity. lb. 
 
 36. Eelief on the ground of a mistake of law 
 ought not to be granted unless the party seeking 
 it restores the other party to liis original position 
 and rights, or shows a disposition to do so. N. Y. 
 Supr. Ct., 1876, Ludington v. Miller, 38 N. Y. 
 Supr. (6 J. & Sp.) 478. 
 
 37. A compromise of a controversy between 
 the parties to it, consummated by the payment 
 of tlie moneys provided for tlierein, and the 
 giving of a receipt in full, cannot be reopened 
 merely in consequence of tlie ignorance of a 
 party in respect to a statutory provision, or of 
 
272 EQUITY AND EQUITABLE RIGHTS— ESCAPE. 
 
 his having overlooked some feature of the law 
 or the proofs, and for that reason not obtained 
 as good terms as he might otlierwise have done, 
 lb. 
 
 38. TJsury, relief against. An equitable 
 action to obtain relief from a usurious security 
 cannot be sustained, where the facts stated in 
 the complaint disclose a perfect defense at law. 
 Ct. App., 1872, AUerton v. Betden, 49 N. Y. (4 
 Sick.) 373. 
 
 39. The act of 1837 does not authorize the in- 
 stitution of such an action, in any case where it 
 could not have been maintained before the pas- 
 sage of the act ; but it merely changes the terms 
 upon whiah the borrower may obtain relief in a 
 proper case. lb. 
 
 40. Nature of relief. In an equitable ac- 
 tion relief can be awarded only in accordance 
 with the allegations of the pleadings as well as 
 with the proofs. A judgment for the plaintiff 
 for relief not asked for cannot be sustained on 
 the ground that from the proofs he appears to 
 be entitled to it. Sup. Ct., 1874, Anonymous, 15 
 Abb. N. S. 171. 
 
 41. Conversion of realty into personalty. 
 A sale of real estate, in which infants have an 
 estate in fee subject to the life estate of their 
 mother, under a decree in a suit for partition 
 brought by one of the other tenants in common, 
 does not have the effect to change the character 
 of their estate so as to convert the proceeds into 
 personalty, but they are to be regarded as real- 
 ty. Sup. Ct., 1874, In matter of Thomas, 1 Hun, 
 473. 
 
 42. Damages. A court of equity having 
 acquired jurisdiction of an action to reform 
 a deed by inserting a reservation of certain tim- 
 ber, thereby acquires the right, incidentally, to 
 give relief in damages for timber already cut 
 and converted by the grantee. Com. App., 1871, 
 Wells V. Yates, 44 N. Y. (5 Hand,) 625. 
 
 43. Guarantied Dividends. A complaint 
 and action against a corporation to compel the 
 payment of dividends on guarantied stock at the 
 rate therein stipulated, is one for an ascer- 
 tained debt or legal liability, and furnishes no 
 foundation for equitable relief. N. Y. Supr. Ct., 
 1874, Chase v. Vanderbilt, 37 N. Y. Supr. (5 J .& 
 Sp.).384. 
 
 44. So also, where such dividends were to be 
 paid out of net profits, and the complaint al- 
 leges that suflScient net profits were made and 
 received to make the payments. lb. 
 
 45. Prosecution of bond of master in 
 chancery. The granting of permission to sue 
 the official bond of a mastery in chancery, is not 
 a matter of course ; but the court has power, on 
 an application therefor, to inquire into the facts, 
 and if any reason exists, legal or equitable, why 
 a prosecution would be unjust or could be suc- 
 cessfully resisted, may deny. the motion. Ct. 
 App., 1874, In the matter of Van Epps, 56 N. Y. 
 (11 Sick.) 599. 
 
 46. Delay of the petitioner to prosecute, his 
 satisfaction at the time with the acts of the mas- 
 ter of which he complains, and long-continued 
 acquiescence therein, and the fact that the sure- 
 ties in the bond are dead, will justify the denial 
 of such an application. lb. 
 
 47. Relief to defendant. When a trustee 
 comes into a court of equity claiming its protec- 
 tion for his alleged legal title, as against the 
 cestui que trust, it is competent for the court to 
 award affirmative relief to the defendant in the 
 original action, by declaring such title subject 
 to the trust, and restraining the trustee from as- 
 serting any further claim in violation of such 
 
 trust. Ct. App., 1874, Blake v. Buffalo Creek R. 
 E. Co., 56 N. Y. (11 Sick.) 485. 
 
 48. Where a widow who held the title to land 
 which was paid for in part by her husband, and 
 improved at his expense, but was heavily incum- 
 bered, in pursuance of a death-bed request of 
 her husband, conveyed such land to her hus- 
 band's brother, in order that he might do the 
 best he could with it for the benefit of herself 
 and her children, and he after such conveyance 
 expended large sums in discharging liens and 
 incumbrances then existing, and in completing 
 repairs and improvements previously com- 
 menced ; — Held, in an action by the widow for 
 a reconveyance of the land, that she was not en- 
 titled to that relief, but that the defendant was 
 entitled to be reimbursed the amount expended 
 by him in good faith in paying liens and incum- 
 brances and making repairs, and to be subroga- 
 ted to the rights of the creditors in respect there- 
 to, and to be paid a reasonable compensation for 
 his services ; that he should be held to account 
 for the rents and profits received by him ; and 
 that the respective rights of the parties inter- 
 ested, including the question of the widow's 
 right of dower, should be determined and settled 
 on equitable principles ; and that the children 
 of the intestate, having interests in the estate, 
 should be made parties. Sup. Ct., 1871, Collins 
 V. Collins, 6 Lans, 368 ; Aff'd, S. C, 56 N. Y. 
 (11 Sick.) 668. 
 
 49. Retaining jurisdiction. Where a court 
 of equity has obtained jurisdiction of an action 
 to compel the specific performance of a contract 
 for the sale of lands, and it appear^ that one of 
 the parties has been wrongfully m possession 
 enjoying the rents and profits, it will proceed 
 and grant relief for the purposes of an account. 
 Ct. App., 1871, Taylor v. Taylor, 43 N. Y. (4 
 Hand,) 578. 
 
 50. Staying proceedings. Where judg- 
 ment in favor of a defendant in the Marine Court 
 was reversed on appeal to the Common Fleas, 
 and the Court of Appeals subsequently decided 
 that the latter court had no jurisdiction of such 
 appeal ; — Held, that a court of equity had no 
 poweftio stay the issue of execution by the de- 
 fendant on the original judgment, on the ground 
 that the parties in the review in the Common 
 Pleas had acted under a mutual mistake of law. . 
 Ct. App., 1871, Jacobs v. Morange, 47 N. Y. (2 
 Sick.) 57. 
 
 See Injunction, Spkoipic Performances. 
 
 EQUITY OF REDEMPTION. 
 See MoRTeAOE. 
 
 ERROR, WRIT OF. 
 See Criminal Law. 
 
 ESCAPE. 
 
 1. A complaint in an action for an escape 
 of a debtor imprisoned on execution, which 
 charges that the sheriff, against the will of the 
 plaintiff, illegally suffered and permitted the 
 judgment debtor to escape and go at large, out 
 
ESTOPPEL. 
 
 273 
 
 of his custody, does not necessarily mean tliat 
 he actively consented to the escape, or had 
 knowledge of it, but merely that he did not pre- 
 vent it, as he was legally bound to do. Sup. 
 Ct., 1878, Toll V. Ahord, 64 Barb. 568. 
 
 2. An answer in such action, which, after 
 setting out proceedings for the discharge of the 
 judgment debtor, and the order of the County 
 Court for his discharge, alleges that the defend- 
 ant, " In obedience to the requirements of said 
 court, and not otherwise, permitted said B to go 
 at large, as he lawfully might, and as he was by 
 law required to do, which is the same escape," 
 etc., merely admits that he did not prevent the 
 escape, lb. 
 
 81 Defense. An order of the County Court 
 discharging a prisoner held in execution, will 
 not, per se, protect a sheriff acting upon it unless 
 it recites the facts conferring jurisdiction. If it 
 does not, he must show those facts by other 
 competent evidence. Ct. App., 1871, BuUymore 
 V. Cooper, 46 N. Y. (1 Sick.) 236; Aff'g S. C, 2 
 Lans. 71. 
 
 ESCHEAT. 
 See Alien. 
 
 ESCROW. 
 See Dbed. 
 
 ESTATE FOR LIFE. 
 See Tenant fob life. 
 
 ESTOPPEL. 
 
 I. Estoppel bt deed oe eecoed . 
 n. Estoppel in pais 
 
 273 
 275 
 
 I. Estoppel bt deed ok eecord. 
 
 1. Deed -with covenants. A deed of land 
 containing express covenants of warranty or 
 quiet enjoyment'operates as an estoppel against 
 the claim of the grantor or his privies to a sub- 
 sequently acquired estate, where a present right 
 or interest in fact passed at the time, as well as 
 where nothing whatever passed. Com. App., 
 1874, House T. McCormick, 57 N. Y. (12 Sick.) 
 310. 
 
 2. Recital in deed. Where a deed contain- 
 ing covenants to be performed by the grantee, 
 but signed by the grantor only and sealed with 
 one seal, recites that it is sealed by both parties, 
 such seal becomes the seal of the grantee, and 
 he will be estopped from denying it, and from 
 denying the covenants, as well. Com. App., 
 
 ' 1873, Atlantic Dock Co. v. Leavitt, 54 N. Y. (9 
 Sick.) 35. 
 
 8. Deed for material. One who grants a 
 parcel of-land to a railroad company " for ma- 
 terial," is estopped by his deed from claiming 
 damages for the withdrawal of lateral support 
 to his other adjoining land by the excavation 
 and removal of soil from the tract so sold. Sup. 
 18 
 
 Ct., 1875, Ludlow V. Hudson Riv. R. R. Co., i 
 Hun, 289 ; Eev'g S. C, 6 Lans. 128. 
 
 4. Quitclaim. Although a grantor with war- 
 ranty cannot set up a hostile title existing at the 
 time of his conveyance, yet one who conveys 
 by quitclaim is not estopped from subsequently 
 acquiring and setting up any other title, whether 
 existing at the time of his conveyance or subse- 
 quently created. Sup. Ct., 1878, Cramer v. Bea- 
 ton, 64 Barb. 522. 
 
 6. A grantor may set up, as against his own 
 deed, a title acquired by him by a contempo- 
 raneous or subsequent practical location with 
 an adverse possession for the requisite length of 
 time. lb. 
 
 6. The taking of a quitclaim deed of land 
 from one who claims as tenant for life under a 
 will, does not estop the grantee or his assigns 
 from disputing the title of his grantor even, 
 much less that of those claiming as remainder- 
 men after the decease of the life tenant. Sup. 
 Ct., 1872, Prindle v. Beveridge and Lytle v. Same, 
 7 Lans. 225; AfE'd, S. C, 58 N. Y. (13 Sick.) 
 593. 
 
 7. Nor does a reference in such deed to the will, 
 under which the grantor claimed, for a descrip- 
 tion of the premises, operate to estop him by 
 way of admission of title. lb. 
 
 8. A grantee of land, who is in possession un- 
 der a quitclaim deed, cannot, in an action be- 
 tween him and other parties claiming under the 
 same grantor, involving the title to such land, 
 dispute the title of their common grantor. Ct. 
 App., 1871, Cox V. James, 45 N. Y. (6 Hand,) 
 557. 
 
 9. Conveyance subject to rents. Where 
 lands which are subject to a rent charge, reserved 
 in a previous conveyance thereof, are by a sub- 
 sequent deed conveyed " subject to tlie rents due 
 and to become due, to S V E and his heirs and 
 assigns," the grantee by accepting such deed is 
 estopped from denying that such rents are sub- 
 sisting liens on the premises, and that the 
 covenants to pay them are still in force. Sup. 
 Ct., 1872, Lyon v. Adde, 63 Barb. 89. 
 
 10. A grantee of lands under a deed, which, 
 by its terms, is subject to a prior mortgage, is 
 estopped from questioning the consideration or 
 validity of such mortgage. Com. App., 1870, 
 Freeman v. Auld, 44 N. Y. (5 Hand,) 50 ; Eev'g 
 S. C, 37 Barb. 587. Nor, when he assumes a 
 mortgage, the amount of which is specified, can 
 he dispute the amount due thereon, if not ex- 
 ceeding the amount specified. Ct. App., 1873, 
 Rilter V. Phillips 53 N. Y. (8 Sick.) 586. 
 
 11. Lease. Neither one who enters into pos- 
 session of premises as the tenant of another, 
 under a lease rendering rent, nor one who suc- 
 ceeds to his possession by his permission and 
 consent, can dispute the title of his landlord 
 while that possession continues. Sup. Ct., 1872, 
 Tompkins v. Snow, 63 Barb. 525. 
 
 12. A tenant taking premises under a written 
 lease, and holding during the entire term is es- 
 topped from denying his lessor's title ; and it will 
 make no difference that he was in possession at 
 the date of the lease, if he remained in possession 
 by virtue of the letting. Com. App., 1872, Pre- 
 vot V. Lawrence, 51 N. Y. (6 Sick.) 219. 
 
 13. One who takes possession of land, under 
 an executory contract for the sale of a lease 
 made by the corporation of the city of New 
 York upon a sale for taxes, is not thereby es- 
 topped from purchasing the fee and disputing 
 the validitv of the tax sale. N. Y. Supr. Ct., 
 1875, Bensel v. Gray, 38 N. Y. Supr. (6 J. & Sp.) 
 447. 
 
274 
 
 ESTOPPEL. 
 
 14. Mortgage ■with covenants. One who, 
 having no title to lands, executes a mortgage 
 thereon with covenants of seizin and of title, and 
 afterwards acquires title, is estopped, as are also 
 his privies in estate, in blood and in law, from 
 disputing that he had title at the date of the 
 mortgage. Com. App., 1874, Teffl v. Munson, 
 57 N. Y. (12 Sick.) 97. 
 
 15. — recital in. The acceptance of a mort- 
 gage of land by the person appearing of record 
 to have the title thereto, containing a recital 
 that the premises are the same this day convey- 
 ed by him to the mortgagor, estops him and his 
 heirs from denying that he conveyed the prem- 
 ises ; but it will not estop his wife from claim- 
 ing dower, without proof that she joined in the 
 deed. Sup. Ct., 1872, Coray v. Maihewson, 44 
 How. 80 ; S. C, 7 Lans. 80. 
 
 16. Power of attorney. A citizen of New 
 York, connected as a partner with a firm doing 
 business in New Orleans, who, in executing a 
 power of attorney to an agent of the firm, de- 
 scribed himself as of the latter city, is not there- 
 by estopped from showing the fact as to his 
 citizenship, for the purpose of relieving himself 
 from liability upon a note indorsed in the firm 
 name and discounted after the breaking out of 
 the civil war, where it is not shown that the 
 person discounting it had either acted upon or 
 seen such power of attorney. Ct. App., 1872, 
 Bank of New Orleans y. Matthews, 49 N. Y. (4 
 Sick.) 12. 
 
 17. The recital in a release, of damages 
 arising from laying out a highway, that a high- 
 way had been laid out by three commissioners, 
 does not estop the party signing it from availing 
 himself of the fact that the order laying out the 
 road is void. Sup. Ct., 1874, Todd v. Todd, 8 
 Hun, 298. 
 
 18. Administrator's bond. In an action 
 upon an administration bond, the obligors are 
 estopped from denying the authority of the sur- 
 rogate to grant the letters, or their own liability 
 on tlie bond for the acts of the administrator in 
 the execution of his duty as such, or the order of 
 the surrogate fixing his liability. N. Y. C. P., 
 1874, Field v. Van Vott, 15 Abb. N. S. 349. 
 
 19. Judgment. A judgment against a party 
 sued as an individual is not an estoppel in a 
 subsequent action in which he sues or is sued in 
 the capacity of trustee. Ct. App., 1874, Rath- 
 bone V. Hooney, 58 N. Y. (13 Sick.) 463. 
 
 20. A wife who joins with her husband in a 
 conveyance of premises to a third party, by 
 whom they are conveyed to herself, is not es- 
 topped by a judgment in favor of creditors of her 
 husband, in an action to which slie was a party, 
 declaring such conveyances fraudulent and 
 directing the premises to be sold, and not in any 
 way recognizing or providing for any dower 
 right in her, from setting up a claim for dower 
 in the premises as against a purchaser at the 
 sale, if the matter of her inchoate right of dower 
 was not put in issue and litigated therein. Ct. 
 App., 1872, Malony v. Boran,12 Abb.N. S. 289 : 
 S. C, 49 N. Y. (4 Sick.) 111. 
 
 21. A judgment is final and conclusive upon 
 the parties to it as to matters which might have 
 been litigated and decided in the action, only 
 when such matters might have been used as a 
 defense in that action against an adverse claim 
 therein. Gkovbe, J., dissents. lb. 
 
 22. A release of dower by a married woman's 
 joining with her husband in a conveyance of his 
 laijd, operates against her only by way of estop- 
 pel, and can be taken advantage of only by 
 those who claim under that conveyance. lb. 
 
 23. A party who obtains a decree of divorce 
 in a court of another State which is void for want 
 of jurisdiction in that court, is not estopped from 
 denying the validity of such decree. Sup. Ct., 
 1871, Holmes v. Holmes, 4 Lans. 388. 
 
 24. In an action against heirs to charge the 
 lands descended to them with a debt of their 
 ancestor, a judgment against them involves the 
 decision that the land so descended to them, 
 and, consequently, that the ancestor was seized 
 thereof, and they are estopped from afterwards 
 disputing those facts. N. Y. Supr. Ct., 1876 
 Hudson V. Smith, 39 N. Y. Supr. (7 J. & Sp.) 452. 
 
 25. A purchaser of land at a guardian's sale, 
 who had knowledge of and was a party to a bill 
 of review in a partition case at the time he took 
 title, the decree in which invalidated his title, 
 and was also a party to a subsequent partition 
 suit, in which such land was adjudged to the 
 adverse party, is estopped by such decrees from 
 any claim of legal title to such land. Com. 
 App., 1873, Savage v. Allen, 54 N. Y. (9 Sick.) 
 458. 
 
 26. As to such estoppel, it is immaterial wheth- 
 er the partition was by ordinary suit or by pro- 
 ceedings on petition at law, as originally pro- 
 vided for in the Revised Statutes. lb. 
 
 27. A landlord who, after obtaining possession 
 of the demised premises by summary proceed- 
 ings, for non-payment of rent, forecloses a 
 mortgage given to him by the tenant for a loan, 
 covering the premises "with the leases and terms 
 of years yet unexpired " of the mortgagor, and 
 sells by that description, is estopped from deny- 
 ing that the lease was still in existence, and that 
 the purchaser at the sale bought the unexpired 
 term of the original tenant. N. Y. Supr. Ct., Sp. 
 T., 1868, StuyvesantY. Grissler, 12 Abb. N. S. 6. 
 
 28. Pleading. A plaintiff in ejectment 
 bringing his action durihg the term of an out- 
 standing lease, and founding his right of pos- 
 session upon the claim that the lease is void, 
 cannot, at the same time, invoke its aid for the 
 purpose of establishing the relation of landlord 
 and tenant between his grantor and the defend- 
 ant, and thus disabling the latter from acquiring 
 a hostile title or setting up an adverse posses- 
 sion. Ct. App., 1873, Sands v. Hughes, 53 N. Y. 
 (8 Sick.) 286. 
 
 29. A defendant in an action for the conver- 
 sion of chattels, who answers alleging that he 
 had executed and delivered to plaintiffs, as 
 security for a debt owing them, a bill of sale 
 and storage receipt of the goods claimed, upon 
 an understanding that he might withdraw goods 
 in proportion as he made payments on the debt, 
 and also stating facts to excuse the non-delivery 
 to plaintiffs, is estopped from showing on the 
 trial that plaintiffs had no interest in the goods, 
 or that he did not hold as their bailee. ~N. Y. 
 C. P., 1871, Gomez r. Kamping, 4 Daly, 77. 
 
 30. A defendant who sets up as a defense to 
 an action on a note, that the time of payment 
 has been extended by agreement, and thereby 
 defeats a recovery, is estopped from alleging the 
 falsity of that defense in a second suit on such 
 note. Sup. Ct, 1873, Marcellus v. Countryman, 65 
 Barb. 201. 
 
 31. Where a defendant in an action upon a 
 promissory note, sets up in his answer that the 
 note was, by mistake, drawn for $50 too much, 
 or that if there was no mistake, it was usurious, 
 and the referee finds the mistake and deducts it 
 from the recovery, the defendant is estopped 
 from claiming that it was usurious. Sup. Ct., 
 1875, r.usk V. Campbell, 3 Hun, 607. 
 
 32. An undertaking given by a defendant 
 
ESTOPPEL. 
 
 275 
 
 in replevin to procure the return to him of the 
 goods claimed, does not estop him from showing 
 on the trial that the property taken and return- 
 ed to him was not the property described in the 
 complaint as the subject of the action, or was 
 less in amount or value than stated therein. N. 
 Y. Supr. Ct., 1878, Talcott v. Belding, 46 How. 
 419 ; S. C, 36 N. Y. Supr. (4 J. & Sp.) 84. 
 
 33. Such an undertaking is not required to be 
 under seal, and is not a deed, nor does it form 
 any part of the record in the action; and it 
 does not operate as an estoppel in pais. lb. 
 
 II. Estoppel in pais. 
 
 34 Accepting benefit. The purchase by a 
 creditor of property which has been assigned by 
 his debtor for the benefit of creditors, is not 
 such an acceptance of a benefit under the as- 
 signment as will estop him from insisting upon 
 its invalidity. Ct. App., 1873, Haydock v. Coope, 
 53 N. Y. (8 Sick. ) 68. 
 
 35. A party in whose behalf an undertaking 
 on appeal is executed by other parties, which is 
 received as proper and lawful, and the proceed- 
 ings stayed- by virtue of it, though in fact insuf- 
 ficient, is estopped from questioning its validity 
 in an action brought against him by the sureties, 
 to recover money naid by them as such. Sup. 
 Ct., 1874, BcaesY. Merrick, 2 Hun, 568. 
 
 36. The owner of lands who accepts an award 
 of commissioners, made upon the laying out of a 
 street across the same, is estopped from denying 
 the constitutional validity of the statute under 
 which the proceedings were had, including the 
 provisions for making compensation to the 
 owner for lands taken. Ct. App., 1874, Hameis- 
 ley V. Mayor, etc. of New York City, 56 N. Y. (11 
 Sick.) 533. 
 
 37. One who, under the pretense of being a 
 trustee, has secured the fruits of services render- 
 ed by an attorney employed by him to institute 
 legal proceedings to obtain possession of the 
 trust property, is estopped from denying his 
 liability to pay for such services out of those 
 fruits, on the ground that his acts were illegal 
 and void. N. Y. Supr. Ct. 1875, Randall v. 
 Dusenbury, 39 N. Y. Supr. (7 J. & Sp.) 174. 
 
 38. In an action of ejectment, plaintiff claimed 
 as devisee of the defendant's grantor, and de- 
 fendant offered to prove that at tlie time of the 
 execution of the deed plaintiff accepted other 
 property in lieu of the land conveyed, and that 
 subsequently a note given for part of the pur- 
 chase-money was assigned to him by the grantor 
 and an -action brought by him thereon. Held, 
 that these facts could not justly be claimed to 
 have induced the execution of the deed or its 
 acceptance by defendant, and tlierefore did not 
 estop tlie plaintiff from showing that the grantor 
 was non compos mentis. Com. App., 1872, Van 
 Deusen v. Sweet, 51 N. Y. (6 Sick.) 378. 
 
 39. Wliere letters-patent have been adjudged 
 void after an assignment tliereof, the assignees 
 are not estopped from setting up such invalidity 
 in an action by the assignor to recover royalties 
 agreed to be paid in consideration of the assign- 
 ment, even though they may have assigned their 
 rights to another. Sup. Ct., 1875, Hawks v. 
 Swett, 4 Hun, 146. 
 
 40. Neither are such assignees estopped, as be- 
 tween themselves, from setting up such invalid- 
 ity in an action by one to recover royalties agreed 
 to be paid to him by the others for the exclusive 
 right to manufacture under such assignment. 
 Sup. Ct., 1875, Marston v. Swett, 4 Hun. 153. 
 
 41. Retaining possession of land by a purchaser 
 
 whose contract entitles him to a perfect title of 
 record, after the day fixed for delivery of the 
 deed, and after he has refused to accept a deed 
 tendered which did not convey such title, does 
 not in all cases estop him from alleging the de- 
 fect in the vendor's title. Sup. Ct., 1872, Coray 
 V. Mathewson, 44 How. 80 ; S. C, 7 Lans. 80. 
 
 42. An account rendered by one tenant in 
 common to his co-tenant of rents received by 
 him, does not estop the former from showing 
 that the balance appearing thereon to be due the 
 latter is in excess of her share. N. Y. Supr. Ct., 
 1871, Scheitler v. Smith, 33 N. Y. Supr. (2 J. & Sp.) 
 17. 
 
 48. Acts of co-tenant. Where a co-tenant 
 of common property, owning other lands in sev- 
 eralty, has exercised an easement in the former 
 for tlie benefit of the latter estate, a grantee of 
 all the co-tenants is not estopped, by having 
 succeeded to the interest of such tenant, from 
 claiming, as against his grantee of the lands held 
 in severalty, that the easement is void. Ct. 
 App., 1872, Crippen v. Morss, 49 N. Y. (4 Sick.) 
 63. 
 
 44. Acts of assumed guardian. The acts 
 of one assuming without authority to perform 
 them as guardian of an infant, cannot operate 
 by way of estoppel, as against either the infant 
 or his guardian subsequently appointed "in due 
 form. Ct App., 1872, Sherman v. Wright, 49 N. 
 Y. (4 Sick.) 227. 
 
 45. Acts aa officer. Where a person, as 
 commissioner of highways, liad expended a con- 
 siderable amount of public moneys to protect a 
 piece of road adjoining his own premises, which 
 were also protected by the work done, and, as 
 patlimaster, had ordered it to be worked as a 
 public rpad, ignorant all the time that there was 
 any question of the validity of the highway ; — 
 Held, that he was not thereby estopped from 
 purchasing the land, and claiming that there was 
 no highway, on learning that the existence of 
 the highway was disputed. Com. App., 1873, 
 Chapman v. Gates, 54 N. Y. (9 Sick.) 132. 
 
 46. A person who accepts the office of trustee 
 of a manufacturing company, and acts as trustee 
 under an invalid election, is not estopped from 
 denying that he is trustee, in an action to charge 
 him as such with a debt of the company. Sup, 
 Ct,, 1871, Craw v. Easterly, 4 Lans. 513 : Aff'd, 
 54N. Y. (9 Sick.) 679. 
 
 47. Acts misleading. Although a defendant 
 in an action for breach of promise of marriage 
 may never have intended marrying the plaintiff, 
 yet if his acts and language were such as to in- 
 duce her to befieve tliat there was an engage- 
 ment, and she acted upon that belief, and he 
 knowing that she did so still continued tliem, he 
 will be estopped from denying that tlie engage- 
 ment existed. Ct. App., 1873, Homan v. Earle, 
 53 N. Y. (8 Sick.) 267 ; Aff'g S. C, 18 Abb. (N. 
 S.) 402. 
 
 48. — conferring indicia of title. The 
 owner of stocks, who pledges them to another, 
 indorsing upon them and executing an assign- 
 ment and power of attorney in blank, absolute 
 in its terms and purporting to be for value, thus 
 conferring upon the pledgee the indicia of an ab- 
 solute title, is estopped from asserting his title 
 as against an innocent third party who has 
 dealt with such pledgee upon faith thereof. Ct. 
 App., 1871, McNeil v. Tenth National Bank of 
 New York, 46 N. Y. (1 Sick.) 325 ; Rev'g S. C, 
 55 Barb. 69. 
 
 49. The payee of a State certificate of indebt- 
 edness who confers upon another an apparent 
 title to or power of disposition over it, by exe- 
 
276 
 
 ESTOPPEL. 
 
 cuting and delivering to him an absolute assign- 
 ment thereof, is estopped from asserting, as 
 against an innocent purchaser for value, that 
 the assignment was merely conditional and with 
 an understanding that it should be returned in 
 a certain contingency. Sup. Ct., 1872, Moore v. 
 Miller, 6 Lans. 396. 
 
 50. In order to create an estoppel, by which 
 an owner may be deprived of his property by the 
 act of a third person, without his assent, two 
 things must concur : 1. The owner must clothe 
 the person assuming to dispose of the property 
 with the apparent title to, or authority to dis- 
 pose of it; and, 2. The person alleging the es- 
 toppel must have acted and parted with value 
 upon the faith of such apparent ownership or 
 authority, so that he will be the loser if the ap- 
 pearances to which he trusted are not real. Sup. 
 Ct., 1873, Barnard v. Campbell, 65 Barb. 286 ; 
 Aff'd S. C, 55 N. Y. (10 Sick.) 456. 
 
 51. One who is induced by fraud to sell and 
 deliver personal property, is not estopped from 
 asserting title and reclaiming it, as against one 
 who purchased from his fraudulent vendee before 
 the latter had either possession or any indicia of 
 title, relying solely upon the assertions of the 
 latter as to his title. lb. 
 
 52. Acting as partner. One who engages 
 in the management of business in the name and 
 ostensibly as a member of a firm, cannot, as 
 against his own acts in dealing with third par- 
 ties, deny the existence of the firm, although 
 such denial be based upon a ground supported 
 by the articles of association. Ct. App., 1872, 
 McStea V. Matthews, 50 N. Y. (5 Sick.) 166; 
 Aff'g S. C, 3 Daly, 849. 
 
 53. One who indorses a promissory note in 
 the name of a firm, is estopped from denying 
 either the existence of the firm or his liability as 
 a member of it. Com. App., 1873, Hubbard v. 
 Matthews, 54 N. Y. (9 Sick.) 43. 
 
 54. One who advertises himself to the world 
 as a co-partner with others, is estopped, as 
 against creditors of the firm dealing with it upon 
 the strength of tlie partnership relation, from 
 claiming that the property and entire interest in 
 the partnership is in himself, and that the other 
 members of the firm are merely nominal part- 
 ners ; and the estoppel extends equally to his 
 assignee in bankruptcy. Ct. App., 1872, Kelly v. 
 Scott, 49 N. Y. (4 Sick.) 595. 
 
 55. Apparent authority. The estoppel 
 against the denial by principals of the authority 
 of their general agents while acting within the 
 scope of their apparent powers, which is applied 
 to individuals and business corporations, has no 
 application to the government in respect to its 
 officers, where the question is to what extent 
 such officers may charge the government or de- 
 partment which creates or controls them. Sup. 
 Ct., 1874, Miller v. Mayor, etc. of New York, 3 
 Hun, 35. 
 
 56. Attachment. A sheriff is not estopped, 
 by reason of having attached certain goods as 
 the property of another, from afterwards disput- 
 ing the title of the latter, or of his assignee. 
 Com. App., 1871, Witty v. Campbell, 44 N. Y. (5 
 Hand,) 410. 
 
 57. Balancing accounts. A vendor of an 
 individual bank, who has balanced a depositor's 
 account upon the bank books, is not thereby es- 
 topped, as between himself and his purchaser, 
 from showing that a liability still exists, where 
 the circumstances are all known to the purchaser 
 at the time of the transfer. Ct. App., 1871, Hart 
 V. Messenger, 46 N. Y. (1 Sick.) 253 ; Rev'g S. C, 
 2 Lans. 446. 
 
 68. Certificate. A mortgagor who certifies 
 that his mortgage is good and valid is not thereby 
 estopped from showing that it is void for usury, 
 unless the certificate was made to induce a pur- 
 chaser to act on its statements as true, and he 
 did so act, believing it to be true. N. Y. Supr. 
 Ct., 1874, Eitel v. Bracken, 38 N. Y. Supr, (6 J. & 
 Sp.) 7. 
 
 59. Where the purchaser did not believe the 
 facts to exist which were certified to, nor act on 
 a belief of their truth, the mortgagor is not es- 
 topped from setting up usury as a defense, al- 
 though the purchaser bought believing that as 
 matter of law the certificate would protect him, 
 and would not have bought without it. lb. 
 
 60. Where a check, which has been raised in 
 amount and altered as to the name of the payee, 
 is offered to the person whose name has been so 
 inserted, in payment for property proposed to be 
 purchased of him, and he, in ignorance of the 
 alteration, receives it on the faith of a certifica^ 
 tion then procured by the holder, and parts 
 with value to the full amount of the cheek as 
 altered, if the di;awee afterwards pays the check, 
 he is estopped as against such payee or one- 
 claiming under him from claiming that the pay- 
 ment was made under a mistake of fact, and 
 showing the alteration, and cannot recover back 
 the money so paid. N. Y. Supr. Ct., 1873, Marine 
 Nat. Bank v. Nat. City Bank, 36 N. Y. Supr. (4 
 J. & Sp.) 470. 
 
 61. A corporation issuing a stock certificate 
 which it has power to issue, thereby affirms the 
 ownership of the specified amount of stock by 
 the person designated therein, or his assignee, 
 until it is withdrawn in some manner recognized 
 by law, and is estopped from denying it as 
 against a purchaser in good faith. Com. App., 
 1874, Holbrook v. N.J. Zinc Co., 57 N. Y. (12 
 Sick.) 616. 
 
 62. It is also estopped from denying that such 
 stock is transferable upon its books on surren- 
 der of the certificate, when no other condition is 
 stated therein. N. Y. Supr. Ct., 1873, Driscollv. 
 W. Bradley and Cary Manf. Co., 36 N. Y. Supr. 
 (4 J. & Sp.) 488. 
 
 63. A corporation may be estopped by its own 
 acts and official declarations, the same as natural 
 persons. Accordingly, — Held, that where the 
 charter and by-laws of a Connecticut corpora- 
 tion required transfers of its stock to be made 
 upon its books, and to be evidenced by a cer- 
 tificate signed by its president and secretary, and 
 recorded in the town clerk's office ; and it, on 
 being applied to by a purchaser to make a trans- 
 fer, directed the recording of a certificate signed 
 by the secretary only, and made no transfer 
 upon its books for the reason that it had no 
 transfer books, but recognized the purchaser as 
 the owner of the stock, it could not avail itself 
 of its own negligence as the basis of an action 
 against the vendor of the stock upon unpaid 
 calls made after the transfer. Ct. App., 1872, 
 Isham V. Bttckingham, 49 N. Y. (4 Sick.) 216. 
 
 64. Consent to use. One who loans money, 
 which, with his knowledge and consent, is used 
 in erecting buildings upon land belonging to the 
 borrower's wife, is estopped from afterwards 
 maintaining an action to charge the debt upon 
 the land of the wife on the ground that such use 
 of the money was fraudulent. Sup. Ct., 1875, 
 Scholey v. Worcester, 4 Hun, 302. 
 
 65. In order to estop the owner of lands from 
 recovering them, on the ground that he has per- 
 mitted the defendant to erect valuable and per- 
 manent improvements on adjoining lands, and 
 to use the lands claimed for purposes of access, 
 
ESTOPPEL. 
 
 277 
 
 it muBt at least appear, not only that they are 
 convenient and beneficial to the defendant, but 
 that they are so far essential that it would work 
 material and serious mischief to the latter to al- 
 low plaintiff's claim. Com. App., 1871, Gaming 
 V. Troy Iron and Nail Factory, M N. Y. (5 Hand,) 
 577. 
 
 66. Contract. A creditor who expressly 
 agrees with his debtor, in consideration of ship- 
 ments of produce to be made by the latter to 
 him, to retain one-half only of the profits to ap- 
 ply upon the prior debts, and to account to the 
 debtor for the other half, is estopped from set- 
 ting up such prior debt by way of set-off in an 
 action by the debtor or his assignee for his half 
 of the profits. Ct. App., 1872, Chitchessv. Daniels, 
 49 N. Y. (4 Sick.) 605 ; Eev'g S. C, 58 Barb. 
 401. 
 
 67. If a land-owner who has contracted with 
 another for the erection of buildings thereon, 
 agreeing to pay an instalment on the laying of the 
 first beams, and has accepted an order in favor 
 of sub-contractors, payable when they shall com- 
 plete the cellar work, cancels his contract after 
 the completion of the cellar and before the lay- 
 ing of the beams, and sells the land, he is estop- 
 ped from insisting upon the condition of the con- 
 tract, which he has thus made impossible of per- 
 formance. Ct. App., 1875, Gallagher v. Nichols, 
 60 N. Y. (15 Sick.) 438. 
 
 68. Parties to a contract which is void as 
 against public policy, are not estopped from as- 
 serting its invaUdity, even by acts of ratification 
 or confirmation subsequently performed. Sup. 
 Ct., 1872, Wheeler v. Wheeler, 5 Lans. 355. 
 
 69. No estoppel arises in respect to an agree- 
 ment not otherwise binding, made to induce a 
 party voluntarily to perform a contract which he 
 could be compeUed to perform, although he per- 
 formed it relying upon and in consequence of 
 the agreement. Ct App., 1876, Organ v. Stewart, 
 60 N. Y. (15 Sick.). 413 ; Rev'g S. C, 1 Hun, 
 411. 
 
 70. Declaratious. A declaration made by 
 one party to another, without any design that it 
 shall be communicated to or acted upon by a 
 third party, does not constitute an estoppel upon 
 the party making it, though such communica- 
 tion and action do really follow. Ct. App., 1872, 
 Mayenborg v. Haynes, 50 N. Y. (5 Sick.) 675. 
 
 71. Even if a land-owner may estop himself as 
 to tlie boundary line of his lot by verbal declar- 
 ations, yet he should be so held only in a case 
 which is clear from doubt. Sup. Ct., 1870, 
 Smith V. McNamara, 4 Lans. 169. 
 
 72. Brokers who, after being directed by one 
 who has money in their hands to purchase bonds 
 therewith, write to the agents of such party 
 advising them of the purchase and the cost at- 
 tending it, are estopped from thereafter denying 
 that they had purchased the bonds as therein 
 stated. Sup. Ct., 1875, Lambertson v. Van Bos- 
 kerck, 4 Hun, 628. 
 
 73. A party should be estopped only to the 
 extent of his assertion. Thus, a statement by a 
 person insured, in his notice and proof of loss, 
 that there was other insurance on the property, 
 is not conclusive against him that such insurance 
 was procured by him- or covers the same 
 property. Sup. Ct., 1873, McMaster v. President, 
 etc. Ins. Co. of North America, 64 Barb. 636. 
 
 74. /* seems, that a statement that the assured 
 had other insurance would not have estopped 
 him from showing that it was a mistake. S. C, 
 55N. Y.(10Sick.) 222. 
 
 75. A statement contained in proofs of loss 
 made by an assured, tending to show a breach 
 
 of warranty in the application for insurance, 
 does not estop him, in a subsequent action on 
 the policy, from showing that there was no 
 breach of warranty. Com. App., 1873, Parmelee 
 V. Hoffman Fire Ins. Co., 54 N. Y. (9 Sick.) 
 193. 
 
 76. Declarations and statements relied 
 on. In order to establish an estoppel in pais, it 
 must appear that the statements made or acts 
 done by the party claimed to be estopped were 
 relied on by the other party. Ct. App., 1872, 
 Malony v. Haran, 12 Abb. N. S. 289 ; S. C, 49 
 N. Y. (4 Sick.) 111. 
 
 77. A widow, who asked a third person to at- 
 tend and bid at a receiver's sale of real estate, 
 after a judgment declaring certain conveyances 
 by which the title had been transferred from her 
 deceased husband to herself fraudulent as against 
 his creditors, stating that she had no claim there- 
 on, or interest therein, and who afterwards attend- 
 ed with such person at the sale and heard read 
 the terms of the sale, in which no mention was 
 made of any right in her, — Held, not thereby 
 estopped from claiming a dower right in the 
 premises, it not appearing that her statements 
 or acts were relied on by such purchaser. lb. 
 
 78. For the purposes of an estoppel, it is not 
 necessary that there should be, upon the part of 
 the person making a declaration, an intention to 
 mislead one who is induced to act upon it. Ct. 
 App., 1872, Continental National Bank v. Nat'l 
 Bank of the Commonwealth, 50 N. Y. (5 Sick.) 
 575. 
 
 79. Neither is it necessary that tlie acts fol- 
 lowing the declaration should be afSrmative and 
 positive. An omission, thereby induced, to act 
 and to take such measures as will arrest an im- 
 pending evil, and an injury resulting from such 
 omission, can be made available as an estoppel- 
 lb. 
 
 80. Where a bank teller, on being shown a 
 check purporting to be certified by him, declared 
 the certification to be genuine, — Held, that the 
 bank was estopped from claiming that it was a 
 forgery, although securities had already been 
 advanced upon it at the time of the declaration, 
 if, in consequence thereof, the one presenting the 
 check was induced to neglect means in his power 
 to stop the payment of the latter. lb. 
 
 81. Arrest and detention of a swindler are 
 powerful means in coercing restoration ; and 
 even the loss of that right would work an estop- 
 pel, although the power of stopping payment 
 was gone. Eapallo. J., dissents. lb. 
 
 82. A mortgagor and a mortgagee, who induce 
 a third party to purchase and take an assign- 
 ment of the mortgage, by means of a covenant 
 on the part of the mortgagee that the whole prin- 
 cipal sum is due and owing on the mortgage, 
 and of an afiidavit of the mortgagor that the 
 mortgage is a good and vahd lien on the premises 
 for the full amount, and that there is no off-set, 
 counterclaim or other matter affecting the val- 
 idity of the mortgage and the whole amount 
 secured thereby, — are estopped from afterwards 
 denying such statements, as against sucli p>ir- 
 chaser, if he bought in good faith, relying upon 
 their truth. All persons claiming an interest in 
 the premises under the mortgagor are likewise 
 estopped. Sup. Ct., Sp. T., 1875, Beal Estatt 
 Trust Co. V. Seagreave, 49 How. 489. 
 
 83. They are not estopped, however, from 
 showing that the purchaser did not buy in good 
 faith relying upon those statements, but tliat 
 they were exacted by him a« contrivances to 
 cover usury. lb. 
 
 84. A mortgagor who, at tlie time of the as- 
 
278 
 
 ESTOPPEL. 
 
 eignment of the mortgage to a bona fide pur- 
 chaser, represented and swore to an affidavit 
 that it was a good, valid and subsisting mortgage, 
 is estopped from afterwards denying its validity. 
 Sup. Ct., 1874, Payne v. Burnham, 2 Hun, 143. 
 Eev'd by Ct. App. 
 
 85. One who sells a quantity of logs, claiming 
 to own them all by virtue of a mortgage cover- 
 ing them, and afterwards agrees to defend the 
 title, when part of the logs are claimed by a 
 third party, and thereby induces the purctiaser 
 to take them and defend a suit brought by such 
 third party, is estopped from denying that lie 
 sold the logs embraced in such suit as being his 
 property. Sup. Ct., 1874, Geer v. Legg, 3 Hun, 
 353. 
 
 86. A person in possession of premises by a 
 tenant, who, on being found there by an attor- 
 ney about to serve a summons and complaint in 
 ejectment for such premises, and asked whether 
 he lived there, and whether he owned the prem- 
 ises, replied in substance that he did, and 
 thereby induced the attorney to insert his name 
 in tlie papers as defendant and serve tliera on 
 him, and received and retained the papers, is 
 thereby estopped from denying in tlie suit that 
 he was in the actual possession when the suit 
 was commenced. Ct. App., 1872, Finnegan v. 
 Caraher, 47 N. Y. (2 Sick.) 493; AfPg S. C, 61 
 Barb. 252. 
 
 87. A party who states to a sheriff, seeking 
 property on which to levy an execution, that 
 certain property pointed out by him belongs to 
 the defendant in the execution, in consequence 
 of wliicli the sheriff levies thereon, is estopped 
 by such statement from afterwards claiming or 
 proving tliat the property was his own, in an ac- 
 tion against tlie sheriff to recover its value. 
 N. Y. Supr. Ct, 1872, Chapman v. O'Brien, 34 
 N.Y. Supr. (2 J. &Sp.) 624. 
 
 88. The payment of 10 per cent, upon a sub- 
 scription to the stock of a railroad company, 
 organized under the general law, being essential 
 to its validity, one who subscribes for stock on 
 a paper which states that 10 per cent, is paid on 
 the subscription, is not thereby estopped from 
 denying the payment in an action on the sub- 
 scription. A statute cannot be evaded by estop- 
 pel. Com. App., 1874, N. Y. ^ Oswego M. R. 
 R. Co. V. Van Horn, bTS. Y. (12 Sick.) 473. 
 
 89. The assertion of a particular construction 
 and effect of a written instrument, of an obscure 
 or doubtful character, is equally good as an es- 
 toppel, if believed, relied upon and acted upon, 
 as is a disclaimer of title to the person about to 
 purchase; Sup. Ct., 1874, Mattoon v. Young, 2 
 Hun, 559. See S. C, 45 N. Y. (6 Hand,) 696. 
 
 90. Delivery to appraisers. The delivery 
 by a wife to tlie appraisers of her husband's es- 
 tate and knowingly permitting to be inventoried 
 as a part thereof, a note taken by the husband in 
 his lifetime payable to the order of both, does 
 not, in the absence of evidence that the position 
 of any one has been changed in consequence, or 
 that any transaction has been made in reliance 
 thereon, estop her from claiming tlie note as her 
 own property. ,Ct. App., 1874, Sanford v. San- 
 ford, ii'S.Y. (13 Sick.) 69. 
 
 91. Grounds stated. A party who has pro- 
 cured a judgment to be set aside, on the ground 
 that it had been satisfied by a sale on execution 
 issued thereon, cannot afterwards claim that such 
 execution was irregular and void. Sup. Ct., 
 1875, Erickson v. Quinn, 3 Hun, 549. 
 
 92. License. One who has accepted a license 
 from the patentee for the manufacture of a 
 patented machinei cannot, so long as he retains 
 
 the license, deny that sucli articles manufactured 
 by him were made under such license. He 
 must give the patentee notice of his renuncia- 
 tion of the license before he can repudiate hig 
 obligations under it. Sup. Ct., 1875, Marsh v. 
 Dodge, 4 Hun, 278. 
 
 93. He is also estopped from denying the ex- 
 istence or validity of the patent, in an action on 
 the contract, and proof thereof is unnecessary, 
 lb. 
 
 94. A mortgagee who, knowing that his secu- 
 rity is being impaired by the cutting of timber 
 from the mortgaged premises by parties who 
 have purchased the same from the mortgagor, 
 permits them to proceed on the promise of the 
 mortgagor to apply the purchase-money on 
 a prior mortgage, is thereby estopped from 
 questioning the title of the purchasers, although 
 the money is not so applied. Ct. App., 1874, 
 Wilson V. Maltby, 59 N. Y. (14 Sick.) 126. 
 
 95. Negotiating mortgage. A party who, 
 as director of a railroad company, takes an 
 active part in the negotiation of a mortgage of its 
 property, which, by its terms, is to attach to 
 after-acquired property, including rolling stock, 
 and who afterwards takes a mortgage of such 
 rolling stock, cannot claim to avoid the prior 
 security because not filed as a chattel mortgage, 
 nor raise the question as to whether it included 
 after-acquired property. Com. App., 1873, Ben- 
 jamin V. Elmira, Jeff. Sr Can. R. R. Co., 54 N. Y. 
 (9 Sick.) 675. 
 
 96. Notice to agent. An insurance com- 
 pany is not estopped from settiilg up a bre-ich of 
 warranty, arising from a misdescription in the 
 policy of the purposes for which the insured 
 premises were occupied, as a defense, by the 
 fact that its agent, when requested to go and 
 view the premises, said he could not, but that he 
 was well acquainted with them, and made out 
 the paper in accordance with information given 
 him by the owner as to occupation, which did 
 not in fact inform him as to all the extra hazard- 
 ous business carried on therein. Sup. Ct., 1871, 
 Sarsfield v. Metropolitan Ins. Co., 42 How. 97 ; 
 S. C, 61 Barb. 479. 
 
 97. — to infant. Lands having been deeded 
 to an infant, at the age of six years, by her 
 father, and subsequently sold by the latter 
 to another, she, then 16 years of age, sign- 
 ing her mother's name, at lier request, to the 
 deed, having forgotten the conveyance to herself, 
 — Beld, that such infant was not estopped from 
 afterwards setting up her title against the siibse- 
 quent grantee. Ct. App., 1871, Spencer v. Carr, 
 45 N. Y. (6 Hand,) 406. 
 
 98. Payment. A village which has issued 
 bonds in payment for stock in a private manu- 
 facturing corporation, in pursuance of a law 
 authorizing it, is not estopped from disputing the 
 validity of such bonds by having once paid 
 interest thereon, or voted on its stock. Sup. Ct., 
 1875, Weisner v. Village of Douglas, 4 Hun, 
 201. 
 
 99. The payment, without objection, of taxes 
 irregularly assessed, for a great number of years, 
 will not estop the party so paying them from 
 questioning any subsequent assessment made in 
 the same manner. Ct. App., 1870, Cruger v. 
 Dougherty, 43 N. Y. (4 Hand,) 107. 
 
 100. Where there is a mistake in a mort- 
 gage in the statement of the times ' of pay- 
 ment, a payment made to an assignee of the 
 mortgage, under protest, according to its terms, 
 will not preclude the mortgagor from setting up 
 the mistake as a defense or counterclaim, in an 
 action by such assignee for its foreclosure. Ct. 
 
ESTOPPEL. 
 
 279 
 
 App., 1872, Andrews v. Gillespie, 47 N. Y. {2 
 Sick.) 487. 
 
 101. Fetitioning. Where a statute making 
 provision for a public improvement, requires a 
 petition from a majority of adjoining property 
 owners, on which to found proceedings therefor, 
 the fact of signing such a petition does not 
 estop the petitioner from claiming an assessment 
 founded thereon to be void for want of the 
 requisite number of signatures. Ct. App., 1874, 
 In the Matter of Sharp, 56 N. Y. (11 Sick.) 257. 
 
 102. Receipt. Where a husband insures his 
 life for the benefit of his wife, she being named 
 as the assured in the policy, the company is not 
 estopped, as against her, from showing, in con- 
 tradiction of their written receipt indorsed upon 
 tlie policy, that tlie annual premium was paid 
 by note with condition of forfeiture for non- 
 payment, although she testifies that she did not 
 know until after his death that the premium was 
 unpaid. Ct. App., 1871, Baker v. Vnim Mut. 
 Life Ins. Co., 43 N. Y. (4 Hand,) 283. 
 
 103. The execution of a receipt purporting to 
 cancel a contract of insurance, induced by false 
 information communicated by the agent of the 
 company, does not estop the person executing it 
 from afterwards enforcing the contract, thougli 
 the company had acted upon the receipt in. 
 settling with its agent. Ct. App., 1871, Holden 
 V. Putnam Fire Insurance Company, 46 N. Y. (1 
 Sick.) 1. 
 
 104. A receipt purporting to be in full of all 
 demands, does not estop the party giving it 
 from showing a mistake as to the facts, and 
 that he intended only to give a receipt for the 
 amount actually paid him. Sup. Ct., 1874, 
 Boardman v. GaiUard, 1 Hun, 217 ; AfE'd, S. C, 
 60 N. Y. (15 Sick.) 614. 
 
 105. A party giving a receipt in full of an ac- 
 count upon payment of part only, there being 
 no dispute between the parties as to the amount 
 due, and no compromise of mutual claims, is not 
 thereby estopped from suing for and recovering 
 the balance. Com. App., 1872, Ryan v. Ward, 48 
 N. Y. (3 Sick.) 204. 
 
 106. Receipt for property, etc. A wife 
 who joins her husband in a receipt to the sheriff 
 for property levied on by virtue of an execution 
 against the husband, containing no admission 
 as to the title to such property, and afterwards 
 pays the execution, is not thereby estopped from 
 asserting it to be her property, as against other 
 creditors of her husband. Sup. Ct., 1869, FFAe- 
 don V. Champlin, 59 Barb. 61. 
 
 107. Even an admission to a third person that 
 such property belonged to her husband, would 
 not estop her as against a creditor whose conduct 
 was not influenced by it. lb. 
 
 108. Receiving money. A contractor for 
 work to be paid for when done to the satisfac- 
 tion of a person named, who sublets the con- 
 tract and afterwards receives payment for the 
 work done, as being done to the satisfaction of 
 such person, is estopped from setting up non- 
 performance as a defense to an action by the 
 sub-contractor to recover his pay. Ct. App., 
 1875, Myers v. Wittard, 60 N. Y. (15 Sick.) 
 636. 
 
 '<109. A married woman, who, after becoming 
 of age, receives moneys, the proceeds of a sale 
 of lands by order of court, in which she at the 
 time had an equitable interest as an infant cestui 
 que trust, is estopped from disputing the title of 
 the purchaser undfer such order of sale. Com. 
 App., 1870, Anderson v. Mather, 44 N. Y. (5 
 Hand,) 249. 
 
 110. The receipt of siirplus money on fore- 
 
 closure of a mortgage, does not estop the mort- 
 gagor or his representatives from questioning 
 the validity of the sale ; yet, it is evidence to be 
 considered in passing on the validity of the pro- 
 ceedings. Sup. Ct., 1874, Candee v. Burke, 1 
 Hun, 546. 
 
 111. If a board of county supervisors retain 
 and appropriate to county use moneys received 
 in pursuance of a compromise of a judgment in 
 favor of the county whioli they have made, they 
 are estopped from enforcing such judgment so 
 long as the other party complies with the terms 
 of tlie settlement. Sup. Ct., 1871, Board of Su- 
 pervisors of Orleans Co. v. Bowen, 4 Lans. 24. 
 
 112. The facts that payment is made for goods 
 in the presence of one who at the time holds a 
 warehouse receipt for the same as collateral 
 security, and that he received the money from 
 the vendor, do not estop him from claiming 
 under the receipt, where it is not shown that he 
 knew the payment to have been for goods 
 covered by it. Com. App., 1872, Urban v. 
 Guthrie, 51 N. Y. (6 Sick.) 664 
 
 113. Release of surety. The fact that one 
 to whom an account was assigned as collateral 
 to a debt due from the creditor to him, upon 
 payment thereof released a surety for the debt 
 due himself upon his paying the balance, does 
 not estop the party paying such account from 
 claiming a mistake in the amount and recover- 
 ing back the over-payment. Com. App., 1873, 
 Lawrence v. American National Bank, 54 N. Y. 
 (9 Sick.) 432. 
 
 114. Settling suit. An assignee of a claim, 
 under an agreement that lie shall pay therefor 
 whatever sum may be allowed him, by way of 
 set-off or counterclaim, in an action against 
 him by the debtor, and who avails himself of the 
 account assigned in one trial, according to tlie 
 agreement, and has a certain amount allowed, 
 if he settles the action after the judgment there- 
 in has been reversed, and thus prevents a new 
 trial, cannot afterwards claim that there has been 
 no determination of the amount to be paid for 
 the claim. Sup. Ct., 1872, Chaplin v. Wilkinson, 
 62 Barb. 46. 
 
 115. Silence. A mortgagee of a boat, who 
 has knowledge that repairs are being made 
 thereon by a shipwright for which he will be- 
 come entitled to a lien, and does not notify the 
 latter of his own claim or object to the repairs, 
 is estopped from asserting the priority of his 
 lien. Per Johnson, J. Sup. Ct., 1872, Scott v. 
 Delahunt, 5 Lans. 372. 
 
 116. One who takes from the lessor an assign- 
 ment of a lease containing a provision for a lien 
 to be given on tlie furniture to be put into the 
 leased premises td secure the payment of tlie 
 rest, and afterwards takes a chattel mortgage of 
 such furniture to secure the payment of money 
 loaned, and assigns such mortgage to a second 
 mortgagee after the latter has taken possession 
 of the property, without claiming any further 
 lien, thereby authorizes the latter to sell the 
 property, and is estopped from asserting any 
 lien under the provisions of the lease. N. Y. 
 Supr. Ct., Sp. T., 1874, Hale v. Omaha National 
 Bank, 47 How. 201 ; S. C, again, 39 N. Y. Supr. 
 (7 J. & Sp.) 207. 
 
 117. A pledgee of chattels who, on their being 
 demanded by the owner, does not disclose his 
 lien, but claims himself to be the owner, is 
 estopped from setting up his lien in an action 
 by such owner for the possession. Com. App., 
 1873, Mamard v. Anderson, 54 N. Y. (9 Sick.) 
 641. 
 
 118. Where a cargo of rice, in the possession 
 
280 
 
 ESTOPPEL. 
 
 o£ one having a lien upon it for cleaning, was 
 bought by another, who gave notice of the pur- 
 ' chase to the lienor, but the latter said nothing 
 of his lien and allowed a portion of the rice to 
 be taken away without objection, and the pur- 
 chaser afterwards paid in full for the rice with- 
 out knowledge of the lien, — Held, that the pos- 
 session of the lienor was constructive notice of 
 his rights, and he was not estopped from after- 
 wards claiming his lien, although the seller had 
 failed meantime. N. Y. C. P., 1871, Graham v. 
 Fitzgerald, 4 Daly, 178. 
 
 li9. An owner of personal property, who 
 knows that the same is being sold by the per- 
 son in possession of it to a creditor of the lat- 
 ter, to apply on a prior indebtedness, and makes 
 no claim to tlie property or objection to its de- 
 livery, is not estopped thereby from afterwards 
 demanding payment from the purchaser, if such 
 purchaser was aware of the owner's title at the 
 time of the purchase. Sup. Ct., 1864, Penfield v. 
 Dunbar, 64 Barb. 239. 
 
 120. The omission of a prior mortgagee of chat- 
 tels, of which he has taken possession on default, 
 to state the sources of his title, when payment 
 of his mortgage is tendered by a subsequent 
 mortgagee, does not estop him from asserting 
 any title he had as against the latter. Ct. App., 
 1875, Campbell v. Birch, 60 N. Y. (15 Sick.) 
 214. 
 
 121. One who furnishes stone to a contractor 
 for sewers, to be paid for when set and passed 
 by the engineer, knowing that, in case such con- 
 tractor abandons the work, the city has, by the 
 terms of the contract, the right to complete it, 
 using the materials found on the line, is estopped 
 from claiming title to such stone as against the 
 city, if he stands by and sees the city author- 
 ities using them to complete the work, after it 
 has been abandoned by the contractor, without 
 objecting or asserting any right thereto. Ct. 
 App., 1873, Bogart v. C% of Brooklyn, 52 N. Y. 
 (7 Sick.) 282. 
 
 122. A part owner of a party wall, who per- 
 mits the owner of the other part to insert an- 
 chors in it for .the purpose of carrying it up, and 
 knowing that the latter is adding to the height 
 of such wall and of his adjoining building, does 
 not object thereto, is equitably estopped from 
 disputing the right of the former to use and 
 maintain the additional wall as a party wall. 
 Sup. Ct., 1871, Brooks v. Curtis, 4 Lans. 283. 
 
 123. Property owners in a city who, with 
 knowledge that street improvements beneficial 
 to their property are progressing, suffer them to 
 proceed for about two years until completion 
 without objection, should be held estopped from 
 afterwards objecting to irregularities in the pro- 
 ceedings. Sup. Ct., 1873, People ei rel. Curtiss v. 
 Common Council of the City ofUtica, etc., 45 How. 
 289 ; S. C, 65 Barb. 9. 
 
 124. The owner of exempt property levied 
 upon and sold on execution against him, who, 
 being present at the sale, not only fails to assert 
 the exemption, but forbids the sale on other 
 grounds which are untenable, is estopped from 
 afterwards claiming it as exempt as against a 
 bona fide purchaser at the sale. Sup. Ct., 1871, 
 Twinam v. Swart, 4 Lans. 263. 
 
 125. A party who has an interest in having 
 certain work well done and materials of good 
 quality furnished therefor, is not estopped from 
 afterwards objecting to the. character of the work 
 and quality of the materials, by having stood 
 by and seen work done and materials furnished 
 of a character inferior to that called for by the 
 contract, where it does not appear that he had 
 
 suflScient knowledge to enable him to detect the 
 defects and make the proper objections. N. Y. 
 Supr. Ct., 1875, Hexter v. Knox, 39 N. Y. Snpr. 
 (7J. &Sp.) 109. 
 
 126. Where money is advanced in considera- 
 tion of the transfer of a warehouse receipt for 
 property, upon delivery of a mere order for such 
 receipt, and the receipt is delivered on presenta- 
 tion of the order, and no notice of any repudia- 
 tion of the transaction is given until after the 
 lapse of the time within which the party ad- 
 vancing the money might have recovered it 
 back, had not the receipt been delivered, such 
 delay of notice will operate as an estoppel, and 
 preclude the party chargeable with it from set- 
 ting aside the transfer. Sup. Ct., 1875, Voorhees 
 V. Olmstead, 3 Hun, 744. 
 
 127. An equitable estoppel may be founded 
 upon acts by which a party has been induced to 
 refrain from such action as lay in his power, by 
 which he might have retrieved his position and 
 saved himself from loss. It is not necessary 
 that he should have acted afBrmatively in con- 
 sequence thereof, or that the other party should 
 have wilfully intended to mislead. lb. 
 
 128. Where A and B, owners of distinct par- 
 cels of a large tract, formerly united and sub- 
 ject to one mortgage, agreed that each should 
 assume and pay one-half the mortgage, in pur- 
 suance of which A paid his share ; and B con- 
 veyed his parcel subject to one-half the mort- 
 gage, which the purchaser assumed, the latter 
 being ignorant that A had paid more than his 
 proportion of the payments already made, and 
 being allowed only one-half the unpaid balance 
 toward the purchase-money ; — Held, in an action 
 for the foreclosure of the mortgage, that A, who 
 was present at the sale, in which he had a pe- 
 cuniary interest, and knew that the purchaser 
 supposed he was assuming only one-half the un- 
 paid balance, but failed to notify him of his er- 
 ror, was estopped from claiming the exclusive 
 benefit of his advances as against such pur- 
 chaser, and that the balance due at the date of 
 the purchase was chargeable equally upon the 
 two parcels. Com. App., 1872, Erie County Sav- 
 ings Bank V. Roop, 48 N. Y. (3 Sick.) 292. 
 
 129. Subscribing for stock. One who has 
 subscribed articles for the formation of a stock 
 company, and the taking of a specified number 
 of shares of stock, and lias afterwards signed the 
 certificate of incorporation required by law, is 
 estopped from denying that the company is 
 legally incorporated. Sup. Ct., 1875, Dorris v. 
 French, 4 Hun, 292. 
 
 130. Telegram. A party who sends a tele- 
 gram to another, merely stating the remittance 
 to the latter of a certain amount in bills of 
 exchange, designed solely for the information of 
 the person to whom it was addressed and not to 
 influence the action of any other person, is not 
 thereby estopped from asserting any right he 
 may have to the bills as against one who loans 
 money on the strength of such telegram, and 
 upon a promise to deliver the bills as security 
 when received. Sup. Ct., 1872, Muller v. Pondir, 
 6 Lans. 472; Aff'd, S. C, 55 N. Y. (10 Sick.) 
 32.5. 
 
 131. Transfer for value. If a corporation 
 which lias guarantied the interest on the bonds 
 of another company, afterward becomes the 
 owner of such bonds and transfers them for 
 value, it is estopped from disputing its liability 
 on its guaranty. Sup. Ct., 18V5, Amot v. Erie, 
 By. Co., 5 Hun, 608. 
 
 132. Verbal promise. A carrier's receipt 
 was conditioned for transporting certain goods 
 
EVICTION— EVIDENCE. 
 
 281 
 
 and delivering them in good order at a port 
 named, " danger of tlie sea excepted," and be- 
 tween the places of shipment and delivery were 
 two routes, an inland or canal route, and an 
 outward or ocean- route. The shipper claimed 
 that the cstrrier verbally agreed to carry the 
 goods by the inland route, that he had insured 
 them by that route, and that in consequence of 
 their being carried by way of the sea he had sus- 
 tained damage and lost his insurance. Held, that 
 these facts did not estop the carrier from claiming 
 the benefit of the principle that all prior or co- 
 temporaneous parol agreements are merged in 
 the writing by which a contract is consum- 
 mated and thus defeating the action. Com. App., 
 1872, White V. Ashton, 51 N. Y. (6 Sick.) 280. 
 
 133. VITaiver of payment at the time of 
 sale of the part of the purchase-money of prop- 
 erty sold at auction required by the conditions 
 of the sale, precludes the auctioneer from setting 
 up such non-payment as a breach of the contract, 
 but does not estop him from showing tliat there 
 was no actual payment taking the case out of the 
 statute of frauds. Ct. App., 1873, Baltzen v. 
 Nicolay, 53 N. Y. (8 Sick.) 467 ; Rev'g S. C, 35 
 N. Y. Supr. (3 J. & Sp.) 203. 
 
 EVICTION. 
 See Landlokd and Tehabt. 
 
 EVIDENCE. 
 
 I. Judicial noticb 281 
 
 n. Prbsomptions 281 
 
 III. Statutes, foreign laws 286 
 
 IV. Judgments, judicial peoceedings 
 
 AND exemplifications 286 
 
 V. Public documents ; official cee- 
 
 TIFICATE3 288 
 
 VX Recitals 290 
 
 Vn. Peivate whitings ; books ; en- 
 
 TKIES ; LETTERS : MEMORANDA . . . 290 
 
 Vin. Handwriting; hearsay 294 
 
 IX. Burden of proof 295 
 
 X. Best evidence ; relevancy ; com- 
 petency : 299 
 
 XI. Confessions and declarations ; 
 
 RES GEST^ 311 
 
 XII." Parol proof to explain, contra- 
 dictor VABY TVRITTEN INSTRU- 
 MENTS 316 
 
 Xm. Custom; usage 821 
 
 XIV. Opinions and belief of witnesses. 824 
 
 XV. Former testimony 326 
 
 XVX Evidence in particular actions. 326 
 
 I. Judicial Notice. 
 
 1. Ground of former decision. Where a 
 defendant in ejectment attacks the validity of 
 the execution under which the plaintiff claims, 
 the court will take judicial notice of prior pro- 
 ceedings by sucli defendant to set aside the judg- 
 ment on which such execution was issued, 
 on the ground that it had been satisfied by the 
 execution sale. Sup. Ct., iS15,Encksm v. Qiiinn, 
 3 Hun, 549. 
 
 2. TriflaniTTiahlft liquid. In an action an a 
 policy of insurance, containing conditions Avoid- 
 ing it in case of the use of " camphene, spirit 
 gas, or burning fluid, phosgene or any other 
 inflammable liquid " for lighting, the court will 
 
 not take judicial notice that kerosene is an 
 inflammable liquid, within the meaning of the 
 policy, but the onus is upon the insurer, after 
 showing the use of kerosene, to prove that so 
 used it was in fact imflamraable, i. e., explosive. 
 Ct. App., 1871, Wood V. North Western Ins. Co., 
 46 N. Y. {1 Sick.) 421. 
 
 3. Localities affected. Upon the trial of 
 an action to set aside certain assessments for local 
 improvements, held in the city where the cause 
 of action arises, the court may take judicial 
 notice of the localities affected. Buff. Supr. Ct. 
 1870, Buffalo Union Iron Works v. Citg of Buffalo, 
 13 Abb.!}. S. 141. 
 
 4. Official duty. The court is bound to 
 take judicial notice that " furnishing naturaliza- 
 tion papers " by the clerk of a court, " and 
 indexing naturalization books, when necessary, 
 are part of the duties devolving on the clerk by 
 law-, to be performed without extra charge 
 beyond the salary appurtenant to his office. 
 Sup. Ct., 1875, Gowan v. Mayor, etc. of New York, 
 3 Hun, 632. 
 
 5. Population and officers. Courts will 
 take judicial notice of the population of coun- 
 ties in this State, and of their public officers. Sup. 
 Ct., 1872, Farley v. McConnell, 7 Lans. 428. 
 
 6. Railroad routes. A court may take 
 judicial notice of railroad routes generally known 
 and used. N. Y. Supr. Ct., 1874, Fairfax v. N. 
 Y. Cent, and Hud. Riv. R. R. Co., 37 N. Y. 
 Supr. {5J. & Sp.) 516. 
 
 n. Presumptions. 
 
 7. Acceptance of office. Where a man is 
 shown to have been elected trustee of a corpora- 
 tion, his acceptance of the office will be presumed. 
 N. Y. Supr. Ct., 1870, Nimmons v. Tappan, 2 
 Sweeny, 652. 
 
 8. Acceptance by infant. In case of a 
 deed to an infant of the age of six years, an ac- 
 ceptance will be presumed from the beneficial 
 nature of the grant. Ct. App., 1871, Spencer v. 
 Can; 45 N. Y. (6 Hand,) 406. 
 
 9. Acts, by whom performed. Where 
 offensive matter from the tannery of a party, 
 when it was under his possession and control, 
 was found upon a vacant lot adjoining, — Held, 
 that the presumption was it was placed there by 
 him. Ct. App., 1873, Francis v. Schoelkopf, 53 
 N. Y. (8 Sick.) 152. 
 
 10. Adverse possession. Where one of 
 several owners of land takes actual possession 
 under a deed purporting to convey the entire 
 title, it seems, that such possession will not be 
 presumed hostile to the title of his co-owners, 
 without other evidence. Sup. Ct., 1869, King v. 
 Whaley, 59 Barb. 71. 
 
 11. Assent to terms. In the absence of any 
 proof or circumstances to the contrary or tend- 
 ing to impeach the hona fides of the transaction, 
 the presumption of law is that one receiving a 
 receipt from a common carrier has knowledge of 
 its contents and assents to its terms. Com. App., 
 1872, Belger v. Dinsmore, 51 N. Y. (6 Sick.) 166 ; 
 Eev'g 51 Barb. 69 ; 34 How. 421. 
 
 12. Authority. An instrument acknowledg- 
 ing indebtedness, issued under the signature of 
 the proper officers of a corporation and its cor- 
 porate seal, will be presumed to have been issued 
 by authority of the corporation. Sup. Ct., 1873, 
 Pusey V. New Jersey West Line R. R. Co., 14 Abb. 
 N. S. 434. 
 
 13. An assignment of a judgment in favor of a 
 bank, made by its cashier and signed by him as 
 such, and sealed with the corporate seal of the 
 
282 
 
 EVIDENCE. 
 
 bank, and purporting, to be made in ita behalf 
 and by order of its directors, will be presumed 
 to have been duly authorized. Sup. Ct., 1872, 
 Rice V. Davis, 7 Lans. 393. 
 
 14. Condition waived. Delivery of chat- 
 tels sold without requiring payment at the time, 
 is presumptive evidence that the condition has 
 been waived ; but this presumption may be re- 
 butted by the acts or declarations of the parties, 
 connected with the circumstances showing a 
 contrary intention. Com. App., 1872, Hammett 
 v. Linneman, 48 N. Y. (3 Sick.) 399. 
 
 15. Conformity to law. Until the contrary 
 is shown, every man is presumed to obey the 
 mandates of the law, and to perform all his offi- 
 cial and social duties. N. T. Supr. Ct., 1874, 
 Butterfield v. Radde, 38 N. Y. Supr. (6 J. & 
 Sp.) 1. 
 
 16. As the law requires a trustee of a corpora- 
 tion to be a stockholder, the legal presumption 
 is that one who is a trustee is a stockholder. lb. 
 
 17. The presumption that an auctioneer per- 
 formed the duty required of him by law, of mak- 
 ing a memorandum of a sale made by him, can- 
 not stand for proof that there was a written con- 
 tract of sale, as against a defendant who denies 
 the fact, and against whom the contract is 
 sought to be enforced. Ct. App., 1873, Baltzen 
 V. Nicolay, 53 N. Y. (8 Sick.) 467 ; Rev'gS. C, 
 85N. Y. Supr. (3 J. &Sp.)203. 
 
 18. Consideration. Where a bill of ex- 
 change drawn by a corporation of another State 
 on its treasurer in New York, and duly accepted, 
 is afterwards indorsed by the payee and discount- 
 ed for the corporation, the usual presumption of 
 law, that the making, acceptance, transfer and 
 indorsement were for a legal and sufficient con- 
 sideration, and that the indorser had a cause of 
 action for tlie face of the bill against the maker, 
 is applicable. N. Y. Supr. Ct., 1873, Union Nat. 
 Bank of Pittsburg v. Wheeler, 36 N. Y. Supr. ( 4 
 J. & Sp.) 536. 
 
 19. No presumption is raised from the fact 
 that it was so discounted, that the bill was made 
 and accepted without consideration, and for the 
 purpose of raising money, and was indorsed 
 merely for the accommodation of the company, 
 lb. 
 
 20. In an action upon a sealed note, the note 
 itself is presumptive evidence of a consideration, 
 and no presumption to tfie contrary arises from 
 the failure of the plaintiff to introduce in evi- 
 dence an account, produced and marked for 
 identification, wliich was part of tlie considera- 
 tion. Sup. Ct., 1874, Conway v. Williams, 2 Hun, 
 642. 
 
 21. "Where one party has a legal demand 
 against another, although a criminal prosecution 
 might be founded thereon, the presumption, in 
 the absence of direct evidence that a note execut- 
 ed by tlie latter for the amount of such demand 
 was given in pursuance of an unlawful agree- 
 ment not to prosecute him criminally, will be 
 that it was supported by a valid consideration. 
 Ct. App., 1874, City of Cohoes v. Cropsey, 55 N. Y. 
 (10 Sick.) 685. 
 
 22. Constitutionality. The legal presump- 
 tion as to a law published by the Secretary of 
 State as having been enacted by the legislature 
 is, that it received the number of notes required 
 by the constitution, and was passed when a con- 
 stitutional quorum of legislators was present, 
 although not so certified by the Secretary in the 
 published volume. Ct. App., 1863, Pumpdly v. 
 Village of Owego, 45 How. 219. 
 
 23. Contract. Where a note as to wliich all 
 the indorsers had agreed to be liable, as between 
 
 themselves, as co-sureties, is replaced by a new 
 note executed by the same parties, in the ab- 
 sence of any new arrangement, it will be pre- 
 sumed that they indorsed the new paper on the 
 basis of the original arrangement Sup. Ct., 
 1875, Easterly v. Barber, 4 Hun, 426 ._ 
 
 24. Corporate character. Where a society 
 is proceeded against by a name not inapproplriate 
 as a corporate designation, and defends by that 
 name, without denying that it is a corporation, 
 it will be presumed to be one. Sup. Ct., 1875, 
 People ex rel. Doyle v. N. Y. Benevolent Society of 
 Operative Masons, 3 Hun, 361. 
 
 25. Credit, to whom given. If goods sold 
 are charged to the person who in fact makes the 
 purchase, though as agent for another, the pre- 
 sumption is that the credit is given to him. Sup. 
 Ct., 1875, Burdin v. Williamson, 5 Hun, 560. 
 
 26. Where goods are purchased by an agent 
 of a known principal, the presumption is that 
 credit is given to the latter ; and if fie claims ex- 
 emption on the ground that credit was given 
 exclusively to the agent, the onus is on him to 
 prove that fact, and the proof must be clear and 
 positive. Com. App., 1871, Meeker v. Claghorn, 
 44 N. Y. (5 Hand,) 349. S. P., Ferris v. Kil- 
 mer, 48 N. Y. (3 Sick.) 300 ; Kev'g S. C, 47Barb. 
 411. 
 
 27. Date. As the ordinary course of business 
 is to cancel a revenue stamp upon an instrument 
 on the day of its execution, and as the revenue 
 law requires it to be then done, the presumption 
 is that an instrument bearing no other date was 
 executed at the date of the cancellation of such 
 stamp. Com. App., 1874, Holbrook v. N. J. Zinc 
 Co., 57 N. Y. (12 Sick.) 616. 
 
 28. Death. In an action by one member of 
 a firm, as surviving partner, where the answer 
 states the place of residence of all the partners, 
 proof of the death at such place of persons of the 
 same name as the partners alleged to be deceased, 
 prima fade, establishes their death, and the right 
 of the plaintiff as survivor. Ct. App., 1871, 
 Daby v. Ericsson, 45 N. Y. (6 Hand,) 786. 
 
 29. Employment. The designation of a 
 newspaper by municipal officers for the publica- 
 tion of city and county advertisements, in pur- 
 suance of law, is an employment by the corpora- 
 tion, in the absence of evidence that the service 
 was declined by such paper ; and such employ- 
 ment will be presumed to continue, in the absence 
 of proof that such designation has ever been re- 
 voked or the employment terminated. Ct. App., 
 1875, In Matter of Phillips, 60 N. Y. (15-Sick.) 
 16 ; Rev'g S. C, 2 Hun, 212. 
 
 30. Sxercise of power. No presumption 
 of the exercise of a power by public officers 
 arises from the fact that such a power, not cou- 
 pled with a duty, has been conferred upon them. 
 N. Y. Supr. Ct, 1875, Oakley v. Mayor, etc. of 
 New Yiyrk, 39 N. Y. Supr. (7 J. & Sp.) 549. 
 
 31. The passage of a resolution by the board 
 of supervisors of New York, that all losses sus- 
 tained by default of any ward collectors should 
 be charged to their respective wards, and added 
 to tlie taxes of the present year, raises no pre- 
 sumption that they have been so charged back, 
 lb. 
 
 82. Fraud. A mere nominal excess of the 
 assets of a debtor over his liabilities, as shown 
 in the schedule attached to an assignment made 
 for the benefit of creditors, will not raise a pre- 
 sumption of fraud, especially where the debts 
 due such debtor are scheduled at their face, and 
 are not shown to be collectible. Com. App., 
 1870, Livermore v. Northrup, 44 N. Y. (5 Hand.) 
 107. ' 
 
EVIDENCE. 
 
 283 
 
 33. The mere fact of a sale by an insolvent of 
 all his property, real and personal, to an indorser 
 upon his notes, for good notes in return, for its 
 full value less the amount of the indorsements, 
 payable in six, twelve and eighteen months, will 
 not of itself raise a presumption of fraud. Ct. 
 App., 1871, Clark v. Wise, 46. N. Y. (1 Sick.) 
 612 ; Rev'g S. C, 57 Barb. 416 ; 89 How. 97. 
 
 34. The fact that a party insured, in making out 
 his preliminary proofs of loss, has sworn to a loss 
 much larger than that afterwards found by a 
 referee, upon trial, is not even presumptive evi- 
 dence of fraud or false swearing, which by a 
 condition in the policy, would avoid it It must 
 be made to appear, in addition to this, 1st. 
 That there were no such goods of tliat value 
 destroyed ; and, 2d. That the insured knew or 
 must have known that fact, wlien swearing to 
 such proof of loss. N. Y. C. P., 1871, Unger v. 
 People's Fire Ins. Co., 4 Daly, 96. 
 
 35. Gift. Possession by a mortgagor, at the 
 time of his death, of a bond and. mortgage exe- 
 cuted by him to his wife's father, unimpeached 
 by any evidence casting suspicion upon it, but 
 supported by evidence of the declared intention 
 of the mortgagee* to give it to his daughter, is 
 presumptive evidence of such gift. Sup. Ct., 
 1862, Hackney v. Vrooman, 62 Barb. 650. 
 
 36. The donee in this case having died before 
 her husband, the papers were found exactly 
 where they naturally and properly would be if 
 given to her in her hfetirae, he being the legal 
 custodian of her personal property. lb. 
 
 37. Gratuitous services. Church music in 
 small places being usually gratuitous, the ser- 
 vices of one who assists in such music, either by 
 singing or by playing upon an instrument as an 
 accompaniment, will be presumed to have been 
 rendered gratuitously ; and to hold the religious 
 society for which they were rendered liable to 
 pay therefor, there must be proof of a promise 
 on its part to do so. Sup. Ct., 1872, "kok Bu- 
 ren v. Reformed Church, of Gansevoort, 62 Barb. 
 495. 
 
 38. Juxisdictioii. In an action for an arrest 
 made under a warrant, every intendment is to 
 be made in favor of the jurisdiction of the magis- 
 trate who issued it ; and it is to be presumed 
 that the person against whom it was issued was 
 at the time witliin the local jurisdiction of such 
 magistrate, although described therein as of a 
 place outside that jurisdiction. Sup. Ct., 1874, 
 
 Williams v. Williams, 2 Hun, 111. 
 . 39. The jurisdiction of a surrogate in an orig- 
 inal proceeding, not relating to or dependent 
 upon any former proceeding over the subject- 
 matter of which he has acquired jurisdiction, 
 will not be presumed, but must be shown by 
 competent evidence. N. Y. Supr. Ct., 1870, 
 People ex rel. Meyer v. Hartman, 2 Sweeny, 
 676. 
 
 40. Knovrledge. Knowledge of the inva- 
 lidity of an execution will not be imputed to a 
 purchaser at a sale under it, for the purpose of 
 making out that his payment was voluntary, and 
 thus preventing him from recovering it back. 
 Ct. App., 1873, Schwinger v. Hickok, 53 N. Y. 
 (8 Sick.) 280. 
 
 41. When a universal usage of a certain trade 
 or locality is proved, parties contracting in such 
 locality, or in respect to such trade, are pre- 
 sumed to have knowledge of it ; but the pre 
 sumption is not conclusive, and is open to re- 
 buttal by proof that such a party was in real- 
 ity ignorant. Ct. App., 1872, Walls v. Bailey, 
 49 N. Y. (4 Sick.) 464. 
 
 42. From lapse of time. In the case of an 
 
 obligation which can be extinguished by an act 
 in pais, as by payment, there is an absolute 
 presumption of payment, after tlie lapse of 20 
 years. This is a presumption of law, which can 
 only be rebutted by some positive act of une- 
 quivocal recognition within that period. Sup. 
 Ct., 1872, Lyon v. Adde, 63 Barb. 89. 
 
 43. There is also a presumption of fact, or 
 more properly, in the nature of evidence, which 
 may be drawn by the jury, or by the court 
 when there is no jury, from the circumstances 
 of the case, in less than 20 years. lb, 
 
 44. When the obligation can be extinguished 
 only by deed, no presumption of law arises from 
 mere lapse of time ; neither is that alone suffi- 
 cient to raise a presumption of fact, but it is a 
 circumstance from which, in connection with 
 other circumstances, the satisfaction of the ob- 
 ligation may be found by a jury, or decreed by 
 a court of chancery. lb. 
 
 46. Wliere the relation of landlord and tenant 
 is shown to have once existed under a sealed 
 lease, any release of rent must be by deed, and 
 no presumption of payment can arise from mere 
 lapse of time ; nor will tlie non-demand of rent 
 by the landlord justify the presumption that he 
 lias released the right to it. lb. 
 
 46. Where grantees of lands which are sub- 
 ject to a rent charge reserved in the conveyance 
 to their grantor, accept conveyances expressly 
 made subject to the rents then due and to be- 
 come due to the original grantor, his heirs and 
 assigns, that is such an admission of the sub- 
 sistence of the covenant to pay rent as rebuts 
 the presumption of its extinguishment. lb. 
 
 47. Where' there is proof that no rent has 
 been paid or claimed for many years, but there 
 is also proof to a degree of certainty, tliat tliere 
 has been no release, although tlie latter proof 
 may not be held conclusive in rebuttal of the 
 presumption, yet the court should require a 
 greater lapse of time and more unequivocal acts 
 to establish the presumption than if the question 
 of release was in doubt. lb. 
 
 48. Marriage. Cohabitation, general repute, 
 and the acknowledgment of the parties, are cir- 
 cumstances raising a strong presumption of mar- 
 riage ; but they are not conclusive, and the pre- 
 sumption is one capable of being rebutted by 
 other evidence. N. Y. Supr. Ct., 1870, Durand 
 V. Durand, 2 Sweeny, 315. 
 
 49. Meaning of words. It will be presumed 
 that a witness in testifying used words in their 
 their ordinary, popular signification, and the 
 burden of proving the contrary is upon the party 
 alleging it. Thus, when a witness testifies that 
 he was discharged by his employer, it will be 
 presumed that he meant dismissed from ser- 
 vice, as a matter of fact, and not discharged as 
 a conclusion of law. Sup. Ct., 1873, Crouse v. 
 Garlock, 45 How. 78. 
 
 60. Negligence. Proof of a demand upon a 
 warehouseman for the delivery of goods stored 
 with him, and of his refusal or neglect to deliver 
 or produce them, prima facie establislies negli- 
 gence on his part N. Y. Supr. Ct., 1873, Cole- 
 man V. Livingston, 36 N. Y. Supr. (4 J. & Sp.) 
 32. 
 
 61. Non-production of evidence. An 
 omission to produce material testimony which 
 is clearly within the reach of a party, and be- 
 longs to him to produce, raises the presumption 
 that it is the result of knowledge or fear on his 
 part that it would not help his case- N. Y. Supr. 
 Ct., 1875, Bruce v. Kelly, 39 N. Y. Supr. (7 J. & 
 Sp.) 27. 
 
 52. But this presumption loses its force when 
 
284 
 
 EVIDENCE. 
 
 it appears that the witness by whom certain 
 facts neeeding explanation might be explained 
 is interested against such party. Sup.Ct., 1871, 
 Coi/kendail v. Eaton, 42 How. 378. 
 
 53. If a party refuses to produce at the trial 
 a written instrument material to the case, after 
 being notified to do so, every inference in re- 
 spect to the contents thereof, which is warranted 
 by the evidence, should be indulged against him. 
 Ct. App., 1873, Wylde v. Northern R. R. Co., 14 
 Abb. N. S. 213; 53 N. Y. (8 Sick.) 156. 
 
 54. Payment In tlie absence of proof to the 
 contrary, a deed is presumptive evidence of the 
 payment of the consideration therein named- 
 Sup. Ct, 1874, Wood V. McClughan, 2 Hun, 
 150. 
 
 55. If the vendor of goods receives from the 
 purcliaser, at the time of delivery, the note or 
 bill of a third person, it will be presumed that 
 such note or bill was received in payment and 
 satisfaction ; and the onus is upon the person 
 receiving it to prove the contrary. Ct. App., 
 1871, Gibson v. Tobey, 46 N. Y. (1 Sick.) 637. 
 
 56. The mere lapse of time between the ren- 
 dition of a judgment and the commencement of 
 a suit upon it, does not raise a presumption of 
 payment. Ct,^App., 1871, Daby v. Ericsson, 45 
 N. Y. (6 Hand,) 786. 
 
 57. In an action by the administrator of de- 
 fendant's father to recover the amount of a note 
 given by defendant to the intestate, — Held, that 
 the production of the note by the defendant on 
 the trial with his name torn off, would raise no 
 presumption of its discharge, when accompanied 
 by proof that it had not actually been paid, and 
 that defendant had access to his father's papers. 
 Ct. App., 1872, Grey v. Gi-ey, 47 N. Y. (2 Sick.) 
 552 ; Eev'g, S. C, 2 Lans. 173. 
 
 58. Official duty, discharge of. The law 
 presumes the due performance of official duty, 
 when a party asserts a right based on the 
 illegality or irregularity of the proceedings of a 
 court or public officer, and throws upon him the 
 burden of proving the defects ; but when an 
 officer or party is asserting rights founded on 
 official acts, and when due performance is essen- 
 tial to the right, it will not be presumed but 
 must be proved. Sup. Ct., 1871, Wood v. Terry, 
 4 Lans. 80. 
 
 59. In an action to redeem lands mortgaged 
 to the commissioners for loaning the U. S. de- 
 posit fund, and sold by them on default of the 
 mortgagor, it will be presumed in favor of the 
 purchaser at such sale that the various steps re- 
 quired by law (ch. 150, Laws 1837) were duly 
 taken by the commissioners. lb. 
 
 60. The presumption is that a sheriff, who 
 sellsproperty on execution, has previously made 
 a levy. Sup. Ct., 1874, McComb v. Becker, 8 
 Hun, 342. 
 
 61. A sheriff being bound, under a severe 
 penalty, to post notices of a sale of real estate, 
 it will be presumed in support of a deed execut- 
 ed by him, that he discharged his duty and 
 posted the notices for the required time. Ct. 
 App., 1871, TFood V. Morehouse, 46 N. Y. (6 Hand, 
 368 ; AfE'g S. C, 1 Lans. 405. 
 
 62. It being shown that an order has been 
 properly made continuing a mechanic's lien, and 
 filed with the county clerk, the law will presume 
 that he did his duty by making a new docket of 
 it. N. Y. Supr. Ct., 1871, McGuckin v. Coulter, 
 10 Abb. N. S. 128 ; S. C, 33 N. Y. Supr. (IJ. & 
 Sp.) 324. 
 
 63. Acts of public officials in making and 
 confirming assessments for street improvements, 
 being taken for the public benefit, are to be 
 
 presumed to have been rightly and' properly 
 performed till the contrary is plainly shown. 
 Sup. Ct., 1874, Phillips v. Mayor, etc. of N. Y. 
 City, 2 Hun, 212 ; Kev'd by Ct. App. 
 
 64. In an action of trespass against school 
 district trustees, by a person assessed by them, 
 pursuant to the provisions of ch. 555, Laws of 
 1864, for taxable property not on the last town 
 assessment roll, it seems, the presumption that 
 proper notice was given as required by said act, 
 will not be indulged, but they are bound to 
 prove that fact affirmatively. Ct App., 1874, 
 Jewell T. Van Steenburgh, 58 N. Y. (13 Sick.) 
 185. 
 
 65. Pleadings. The contents of pleadings 
 are presumed to be known to the court or referee, 
 and it is not necessary for a party to read them 
 in evidence in order to avail himself of admis- 
 sions ' therein. Ct App., 1871, White v. Smith, 
 46 N. Y. (1 Sick.) 418. 
 
 66. Possession of personal property, or of 
 negotiable paper, such as railroad bonds, is pre- 
 sumptive evidence of ownership. Sup. Ct, 1874, 
 Wickes V. Adirondack Co., 2 Hun, 112. 
 
 67. Possession of a negotiable bill or note by 
 one not a party to it is presumptive evidence of 
 ownership, but possession by a part}- only au- 
 thorizes a presumption of such rights and obliga- 
 tions of the several parties as are indicated by 
 the paper itself. Central Bank of Brooklyn v. 
 Hammett, 50 N. Y. (5 Sick.) 158. 
 
 68. Mere possession of the property of a de- 
 ceased person by one not entitled to it under the 
 statute of distributions raises no presumption of 
 title in him. To prevent .the statute taking 
 effect upon it he must show a title under a. wiU 
 or other mode of transfer. Sup. Ct., 1875, Shd- 
 don V. Button, 5 Hun, 110. 
 
 69. Possession of land in 1806 by one claim- 
 ing title as heir of the grantee in a deed dated 
 in 1760, who died in 1790 (the deed reciting 
 possession in such grantee), and continual occu- 
 pation by such heir down to 1828, will authorize 
 the presumption that his possession dated back 
 to the death of his ancestor in 1790. Ct. App., 
 1871, Cahill V. Palmer, 45 N. Y. (6 Hand,) 478. 
 
 70. Possession, actual, open, exclusive and 
 notorious, for the period prescribed by statute, 
 establishes a title to the land, and to uphold 
 it a grant from the true owner will be presumed, 
 lb. 
 
 71. Purpose of purchase. Lands purchased 
 by a railroad company, having power, by its 
 charter, to acquire real estate necessary for the 
 construction and operation of its road, will be 
 presumed to have been purchased for that pur- 
 pose. Ct, App., 1874, Yates v. Van DeBogert, 
 56 N. Y. (11 Sick.) 526. 
 
 72. Regularity. Where an order made by 
 a county judge, requiring a judgment debtor to 
 appear before a referee and answer on oath con- 
 cerning his property, recites that the facts au- 
 thorizing such an order had been made to appear 
 before such judge, " by the affidavit " of the 
 plaintiff's attorney, such recital is presumptive 
 evidence that the necessary proof had been made 
 by a regular affidavit Sup. Ct, 1871, Eugg v. 
 Spencer, 59 Barb. 883. 
 
 73. Such presumption is not overcome by the 
 mere production of a paper in the form of an af- 
 fidavit reciting those facts, and signed by plain- 
 tiff's attorney but not certified as sworn to before 
 any magistrate, although found in the clerk's of- 
 fice with the other papers, and having upon it 
 an indorsement purporting that it had been read 
 on motion before the county judge, and filed as 
 of the same date as the order, without proof to 
 
EVIDENCE. 
 
 285 
 
 show by whom the indorsement was made, or 
 how the paper came to be in the clerk's office, 
 lb. 
 
 74. Where an order, made in proceedings as 
 for contempt for failing to appear before a ref- 
 eree and be examined in supplementary pro- 
 ceedings, recites that the fine imposed was to 
 indemnify the plaintiff in the judgment, " for 
 damage and loss sustained, in defeating the 
 supplementary proceedings," the inference is 
 conclusive that it did appear before the judge 
 that lie did sustain such damage, and that he so 
 found. lb. 
 
 76. The court will not presume an order, pur- 
 porting to have been made at a Special Terra, to 
 have been made at an irregular term. Sup. Ct., 
 1875, People ex rel. Brooklyn Park Commissioners 
 V. City of Brooklyn, 3 Hun, 596 ; Afi'd 60 N. Y. 
 (15 Sick.) 642. 
 
 76. Mere lapse of time since the execution of 
 a tax deed, though accompanied by possession 
 for a less time than would be required to consti- 
 tute a bar by the statute of limitations, does not 
 raise a conclusive presumption that the require- 
 ments of the statute were fully complied with. 
 Ct. App., 1872, Westhook v. Willey, 47 N. Y. (2 
 Sick.) 457. 
 
 77. Release or discharge. Although the 
 law will presume payment of the rent accruing 
 under a reservation in a deed, more than 20 
 years prior to action brought, yet, where the 
 covenant to pay is produced in court, it will not 
 be presumed merely from proof that rent has 
 not been paid for 20 years, nor in the absence 
 of proof that any rent has been paid during 
 a period of even 63 years, that such rent or 
 the obligation to pay has been released and 
 discharged. Hunt, C, dissents. Com. App., 
 1872, Central Bank of Troy v. Heydom, 48 N. Y. 
 (3 Sick.) 260. 
 
 78. Sale. Proof that a party having a mort- 
 gage in his possession has advanced money to 
 the mortgagee, does not raise a presumption 
 either of a sale, or pledge, of the mortgage to 
 him ; but, in the absence of written evidence, 
 there is a presumption against any transfer. Ct. 
 App., 1872, Bowers v. Johnson, 49 N. Y. (4 Sick.) 
 432. 
 
 79. Sanity. There is no presumption of law 
 that a person who commits suicide, was insane 
 at the time. The most that can be said of it is, 
 that the fact of self-destruction removes the pre- 
 sumption of sanity. Fbeedman, J., dissents. 
 N. Y. Supr. Ct, 1873, Coffey v. Home Life Ins. 
 Co., 44 How. 481 ; S. C, 35 N. Y. Supr. (8 J. & 
 Sp.) 314. S. P. Weed v. Mut. Ben. Life Ins. Co., 
 35 N. Y. Supr. (3 J. & Sp.) 386. 
 
 80. Aside from extrinsic facts and circum- 
 stances, the law presumes that every person who 
 destroys his own life is sane up to the very mo- 
 ment when he does the act which causes his 
 death. lb. 
 
 81. Settlement. A promissory note is ;)Wma 
 facie evidence of a settlement at its date of all 
 demands between the parties, or at least of all 
 against the maker in favor of the payee ; and a 
 subsequent agreement between the same parties, 
 whereby such maker, for the expressed consid- 
 eration of a sura ofmoney, and of all claims and 
 demands then heldby the payee against him, 
 bearing date on that day, makes certain prom- 
 ises, is presumptive evidence of an accounting 
 between them, on the day of its date, of all then 
 existing claims against him, including such note. 
 Sup._ Ct, 1871, Butcher v. Porter, 63 Barb. 15. 
 
 82'. Where a retiring partner assigned his in- 
 terest in the firm to his copartner in considera- 
 
 tion of certain stocks, notes, etc., and an agree- 
 ment by the latter to pay all debts of the firm, 
 and to credit the former with any correct 
 charges not credited to him on the books of the 
 firm J — Held, in an action by the former to re- 
 cover such uncredited charges, it appearing that 
 at the time of settlement, plaintiff's account 
 showed a large indebtedness to the firm, that it 
 would be presumed the stocks, &c., received by 
 him were given him upon a settlement of all 
 their business, including his individual account 
 as then appearing, and the agreement to allow 
 charges was not simply to credit them in a set- 
 tled account, but to pay them. Com. App., 1872, 
 Baldwin v. Bald, 48 N. Y. (3 Sick.) 673. 
 
 83. Solvency. In the absence of proof as 
 to the pecuniary circumstances of a person, sol- 
 vency, not insolvency, will be presumed. • Ct 
 App., 1870, Hart v. Hoffman, 44 How. 168. 
 
 84. Suicide. When, from the facts of a case, 
 the death of the assured under an accident poli- 
 cy appears to have been caused either by an 
 accidental injury or by the suicidal act of the 
 deceased, the presumption will be against the 
 latter. Ct. App., 1871, Mallory v. Travelers' Ins. 
 Co., 47 N.Y. f2Sick.) 52. 
 
 85. Surrender of lease. The taking by a 
 tenant of a new lease of premises, during the 
 period of a prior demise, raises a presumption 
 that the first lease is surrendered. - N. Y. C. P., 
 1869, Abdl V. Williams, 3 Daly, 17. 
 
 86. Title purchased. The presumption is, 
 that one agreeing for the purchase of a lease 
 issued by a municipal corporation upon a sale 
 for taxes, is to take it at his own risk as to title, 
 and that the vendor is to warrant nothing more 
 than its genuineness, and that it was given by 
 the corporation and is owned by himself. Ct 
 App., 1874, Boyd v. Schlesinger, 69 N. Y. (14 
 Sick.) 301. 
 
 87. Title to chattels. Proof of the purchase 
 of goods by a person and payment therefor by 
 him, raises a presumption that he is the owner, 
 and entitled to the possession. N. Y. Supr. Ct, 
 1874, Sturm v. Atlantic Mut. Ins. Co., 38 N. Y. 
 Supr. (6 J. & Sp.) 282. 
 
 88. Value. Where a " valued " policy of in- 
 surance is issued upon an application, after the 
 insurers have had sufficient time and opportuni- 
 ty to ascertain the true value, the issuing of the 
 policy is presumptive evidence of an agreement 
 of the parties upon such value, and is conclu- 
 sive between the parties except in case of fraud, 
 lb. 
 
 89. Title to stock. Where a stock certificate 
 has been transferred by the original owner, with 
 the usual assignment and power of attorney 
 thereon executed in blank, a subsequent pur- 
 chaser is not bound to show affirmatively the 
 title of his grantor, in an action by him against 
 the corporation to recover damages for its refu- 
 sal to transfer the stock on its books ; but the 
 presumption is that the stock was transferred 
 and the certificate delivered in the course of 
 business, where there is no evidence to the con- 
 trary. Com. App., 1874, Holbrook v. N. J. Zinc 
 Co.,m'S.Y. (12 Sick.) 616. 
 
 90. Trust. Evidence of declarations by a 
 person holding the legal title to lands, that im- 
 provements made thereon were erected for his 
 sister or for her benefit, and that he had received 
 moneys for her use which he was expending 
 in such erections, does not tend to establish the 
 fact or to raise a presumption that he had ac- 
 quired the title in trust for her or as her agent, 
 or that there was any understanding or agree- 
 ment between them in relation thereto. Com. 
 
286 
 
 EVIDENCE. 
 
 App., 1871, Duffy V. Masterson, 44 N. T. (5 Hand,) 
 557. 
 
 91. Unsea'worthiiiess. If a vessel founders 
 without stress of weather, or other adequate 
 cause, soon after leaving port, the presumption 
 is that tlie inability existed before setting sail, 
 and arose from some latent defect, wliich ren- 
 dered tlie vessel unseaworthy. But no such pre- 
 sumption exists when it appears affirmatively 
 that the ship was seaworthy on leaving port, 
 and had encountered marine perils, such as 
 might disable a staunch and well made vessel. 
 N. Y. Supr. Ct., J874, Sturm v. Atlantic Mut. Ins. 
 Co., 38 N. Y. Supr. (6 J. & Sp.) 282. 
 
 92. Votes, for whom cast. Where, in an 
 action of quo warranto on the relation of one 
 claiming a right to the office, the election returns 
 are rejected for error, there can be no pre- 
 sumption that the votes not proved to have been 
 cast for the relator were given for the defendant, 
 but each can be allowed only such votes as the 
 evidence in the case shows that he received. Ct. 
 App., 1874, People ex rel. Judson v. Thacher^ &t 
 N. Y. (10 Sick.) 525. 
 
 in. Statutes ; FOKEiau laws. 
 
 93r The statutes of another State may be 
 proved by the printed volume purporting to be 
 by authority of the State government ; but, like 
 other evidence, such proof must be presented on 
 tlie trial, and cannot be introduced for the first 
 time on appeal. Com. App., 1870, Hunt v. John- 
 son, 44 N. Y. (6 Hand,) 27. 
 
 94. Upon an inquiry whether or not a law is 
 constitutionally passed by the requisite vote, the 
 printed volume of statutes is presumptively cor- 
 rect, and the original act on file in the office 
 of the Secretary of State is conclusive. Com. 
 App., 1873, People ex rel. Purdy v. Commissioners 
 of Highways of Marlborough, 54 N. Y. (9 Sick.) 
 276. 
 
 95. Foreign lavrs. This country having once 
 been a part of the British empire, our courts 
 will take notice of the laws which prevailed 
 therein previous to the separation, and, in the 
 absence of proof to the contrary, will presume 
 that such laws remain unchanged. Sup. Ct., 
 1861, Stokes V. Macken, 62 Barb. 145. 
 
 96. There is no presumption that the common 
 law is in force in Russia. Such a presumption Is 
 indulged by our courts only in reference to Eng- 
 land and the States which have taken the com- 
 mon law from her. LoTT, Ch. C, dissents. Com. 
 App., 1871, Savage v. O'Neil, 44 N. Y. (6Hand,) 
 298 ; Eev'g S. C, 42 Barb. 374. 
 
 97. Whether the statute law of another coun- 
 try, is, in the absence of proof, to be presumed 
 to be the same as our own, doubted. Ct. App., 
 1874, McCulloch V. Norwood, 58 N. Y. (13 Sick ) 
 562; fiev'gS. C, 36 N. Y. Supr. (4 J. & Sp.) 
 180. ' 
 
 98. roreign courts. In an action upon a 
 judgment rendered by a Court of Common Pleas 
 for a county in another State, such court will be 
 presumed to be a court of record, possessing in 
 civil cases a general jurisdiction to any amount, 
 with the exception of suits for real property. S. 
 C, 36 N. Y. Supr. (4 J. & Sp.) 180. 
 
 IV. Judgments, judicial pkoceedings and 
 
 EXEMPLIFICATIONS. 
 
 99. Judgment record. The record of the 
 judgment of a superior court of general powers 
 is prima facie evidence, and will be held con- 
 clusive until clearly and explicitly disproved. Its 
 
 jurisdiction of not only the subject-matter, but 
 of the person of the defendant will be presumed, 
 and the recitals therein may be used to estab- 
 lish jurisdiction. Ct. App., 1873, Bosworth v. 
 Vandewater, 53 N. Y. (8 Sick.) 597. 
 
 100. These rules apply as well to the case of 
 an infant defendant as to that of an adult. lb. 
 
 101. It is only in case the complaint is not 
 answered by any defendant, that proof of service 
 of summons upon that defendant must appear 
 in the rolls ; and even this has an exception, for 
 service of the summons is dispensed witli when 
 a defendant appears voluntarily in the action 
 and in such case no proof of service need be 
 made. lb. 
 
 102. Papers relating to. the appointment of a 
 guardian ad litem for an infant defendant, and 
 filed in the action, may be received as evidence 
 of such appointment, though forming no part 
 of the record. lb. 
 
 103. A judgment-roll, in an action in the Su- 
 preme Court is admissible in evidence, although 
 it does not show that the defendant was served 
 with summons, since the jurisdiction of that 
 court, will be presumed, and the judgment can- 
 not be attached collaterally. Sup. Ct., 1874, Ray 
 V. Rowley, 1 Hun, 614. 
 
 104. A judgment-roll,- which shows that the 
 defendants appeared and answered, is admis- 
 sible in evidence, notwithstanding the omission 
 of the clerk of the court to annex the summons 
 thereto. Sup. Ct., 1871, Miller v. White, 10 Abb. 
 N. S. 385 ; S. C, 59 Barb. 434. 
 
 105. A judgment-roll, which states a verdict 
 for defendant and judgment thereon in his favor, 
 must be held conclusive as to how the fact was, 
 even though the records of the court show that 
 at the term when the trial is stated to have oc- 
 curred, an order was entered nonsuiting the 
 plaintiff and giving defendant judgment thereon. 
 Sup. Ct., 1871, Frantz v. Ireland, 4 Lans. 278. 
 
 106. The record of a judgment in ejectment 
 may be introduced in evidence in a subsequent 
 action involving the title to the same land, to 
 estop a party or a privy in estate with a party 
 to the former action, although the description 
 of the land therein is defective, on its being 
 shown by parol that the title to the same land 
 was material, and was in fact investigated and 
 determined in the former action. lb. 
 
 107. A judgment-roll in a former action to 
 recover the first and second instalments falling 
 due on a contract set out at large in the com- 
 plaint, the answer to which alleged the non-per- 
 formance of the contract by the plaintiffs, and 
 claimed damages for breaches thereof, which 
 damages were allowed in the action, is admis- 
 sible in a subsequent action to recover the 
 remaining instalments falling due on such con- 
 tracts, to which the same defense and counter- 
 claim is set up, and is sufficient proof of the 
 cause of action, and that all matters relating to 
 the plaintiff's breach of the contract, and the 
 defendant's counterclaim were adjudicated there- 
 in. N. Y. Supr. Ct., 1871, De Wolf v. Crandall, 48 
 N, Y. Supr. (2 J. & Sp.) 14. 
 
 108. A judgment in an action in the nature of 
 a creditor's bill, entered some two years after the 
 verdict was rendered, furnishes no evidence that 
 the original judgment on which the action was 
 based remained unpaid at the time of such 
 entry. Its effect is simply to estop the parties 
 from claiming that it was a valid, subsisting 
 judgment at the time of the rendition of the ver- 
 dict. Com. App., 1872, Fitzgerald v. Topping, 48 
 N. Y. (3 Sick.) 438. 
 
 109. A judgment against an administrator is 
 
EVIDENCE. 
 
 287 
 
 not evidence, as against the heirs or grantees of 
 the intestate, of a debt due to him. Sup. Ct., 
 1872, Kent v. Kent, 1 Hun, 629. 
 
 110. A judgment obtained against a city for 
 damages caused by the failure of a railroad com- 
 pany to comply with the conditions upon which 
 its use of the streets of tlie city was authorized, 
 where notice of the action was given such 
 company, is evidence against the company in an 
 action brought by the city, and is conclusive 
 both as to its liability and the amount of 
 recovery. Ct. App., 1872, Mayor, etc. of Troy v. 
 Troy Sr Lansingburgh R. R. Co., 49 N. Y. {4 Sick.) 
 657. 
 
 111. A judgment against a corporation will 
 not be received in evidence against the trustees 
 in an action to enforce their personal liability 
 for the debt of the corporation included in such 
 judgment. N. Y. Supr. Ct., 1874, Reed v. Keese, 
 87 N. Y. Supr. (5 J. & Sp.) 269. It is not even 
 prima facie evidence of the debt as against them. 
 Ct. App., 1872, MiUer v. White, 50 N. Y. (5 Sick.) 
 137; Rev'g S. C, 10 Abb. N. S. 385 ; 59- Barb. 
 434. 
 
 112. In an action by a judgment creditor to 
 set aside a sale as fraudulent, the judgment 
 obtained by him against the grantor is conclusive 
 upon the grantee, on the question of indebted- 
 ness, and evidence is inadmissible to controvert 
 that fact. Ct. App., 1871, Burgess v. Simonson, 
 45 N. Y. (6 Hand,) 225. 
 
 113. A judgment-roll in an action against one 
 member of a firm individually as indorser of a 
 note, is not admissible in evidence against his 
 co-partner, the survivor of such firm, in an action 
 by him as such survivor, against the former 
 plaintiff, for a conversion of the same note. Ct. 
 App., 1874, Booth V. Powers, 56 N. Y. (11 Sick.) 
 122. 
 
 114. The record of a judgment in an action 
 between a third party and a purchaser of land on 
 execution, establishing the title in the plaintiff, 
 is not evidence upon a motion in the action 
 wherein the execution was issued to have the 
 sheriff's receipt and return of satisfaction on the 
 execution cancelled. Ct. App., 1875, Driggs 
 V. Simson, 60 N. Y. (15 Sick.) 641. 
 
 115. Foreign judgment. A certified copy 
 of the record of a foreign judgment, which on its 
 face shows the existence of a court, with a judge, 
 clerk and seal, is prima facie evidence of the acts 
 of the court as set forth in it, and that it 
 had jurisdiction of the persons and of the sub- 
 ject-matter. Ct. App., 1871, Pepin v. Lachen- 
 meyer, 45 N. Y. (6 Hand,) 27. 
 
 116. — transcript. A transcript taken, not 
 from the records, but from the minutes of a court 
 of a sister State, is not admissible in the courts 
 of this State, under the act of Congress of 26th 
 May, 1790, even if in due form of law ; but a 
 judge's certificate is insufficient, which does not 
 show that of the clerk to be in due form of law. 
 lb. 
 
 117. The record of a judgment obtained in 
 a sister State, which recites an appearance of 
 defendant by attorney, is presumptive evidence 
 of such appearance, in an action here upon 
 such judgment ; but it is not conclusive, and the 
 defendant may rebut the presumption by proof 
 that the attorney named in the record never had 
 any authority to appear for him. N. Y. Supr. 
 Ct., 1870, Howard v. Smith, 42 How. 300 ; S. C, 
 33 N. Y. Supr. (1 J. & Sp.) 124. 
 
 118. Exemplification. A certificate of ex- 
 emplification attached to a copy of the record of 
 a judgment rendered in a Pennsylvania court, 
 signed by the " prothonotary," who is the chief 
 
 clerk of that court, with the certificate of the 
 " president judge " of the court, to the effect 
 that he is the proper certifying officer, and that 
 such attestation is in due form, is sufficient 
 under the act of Congress to render such copy 
 admissible in evidence. Sup. Ct. Cir., 1873, 
 Sheriff V. Smith, 47 How. 470. 
 
 119. Judgment of inferior court. To 
 make the judgment of a court of limited jurisdic- 
 tion competent evidence, it is not necessary that 
 all the facts conferring jurisdiction should appear 
 upon the record, but they may be shown by 
 parol. Com. App,, 1872, Van Deusen v. Siveet, 
 61 N. Y. (6 Sick.) 378. 
 
 120. A transcript of the docket of a judgment 
 rendered in justice's court, and docketed in the 
 office of the county clerk, is prima facie proof of 
 the judgment ; but it is competent for the party 
 claiming adversely, to sliow, by the testimony 
 and docket of the justice, that no such judgment 
 was rendered. Ct. App., 1872, Stephens v. Santee, 
 49 N. Y. (4 Sick.) 35; Bev'g S. C, 51 Barb, 
 532. 
 
 121. Judgment in summary proceedings. 
 The affidavit, summons, proof of service on de- 
 fendant, judgment and warrant in summary 
 proceedings to recover possession of leased prem- 
 ises, are evidence of the amount of rent 
 claimed, and adjudged therein to be due from 
 the defendant to the plaintiff, and are conclusive 
 against the defendant in a subsequent action for 
 such rent, although such judgment was obtained 
 by default. N. Y. C. P., 1872, Powers v. Witty, 
 42 How. 352 ; S. C, 4 Daly, 552. 
 
 122. Adjudication in bankruptcy. In an 
 action by an assignee in bankruptcy as such, a 
 certified copy of the record of the adjudication 
 in bankruptcy, his appointment as assignee, and 
 the assignment, are competent evidence of his 
 title, without proof first being made of the juris- 
 diction of the court in the bankruptcy proceed- 
 ings. Ct. App., 1874, Cone v. Purcell, 56 N. Y. 
 (11 Sick.) 649. 
 
 123. An award of arbitrators, fixing perma- 
 nently the measure of liability of several towns 
 for the expense of building and maintaining a 
 bridge across a stream forming the boundary 
 line between them, is not competent evidence in 
 an action between commissioners of highways 
 of such towns to recover from one the proportion 
 of the expense paid for him by the other, be- 
 cause the liability is fixed by statute, and cannot 
 be changed by arbitration. Sup. Ct., 1871, Corey 
 V. Rice, 4 Lans. 141. 
 
 124. Inquisition of lunacy. An inquisition 
 of lunacy is presumptive but not conclusive evi- 
 dence, in a collateral proceeding, of the inca- 
 pacitv of the alleged lunatic. Com. App., 1872, 
 Van Deusen v. Sweet, 51 N. Y. (6 Sick.) 378. 
 
 125. Matters of practice affecting the regu- 
 larity of the proceedings only, cannot be shown 
 collaterally, in an action for a different object, 
 to impeach the judgment therein. lb. 
 
 126. Surrogate's records of the proof of a 
 will, and letters testamentary, are only evidence 
 in some proceeding arising out of the will itself, 
 and the parties who claim under it or are con- 
 nected with it. They are not competent evi- 
 dence of the death of a husband in an action by 
 his widow for admeasurement of dower. Ct. 
 App., 1875, Carroll v. Carroll, 60 N. Y. (15 Sick.) 
 116 ; Rev'g S. C, 2 Hun, 609. 
 
 127. An afSdavit made by the defendant's 
 witness several years before the trial, identified 
 by him on his cross-examination, which tended 
 to contradict his evidence given at the trial, can- 
 not properly be admitted in evidence on the 
 
288 
 
 EVIDENCE. 
 
 part of tlie plaintifE, without its first being sub- 
 mitted to the inspection of defendant's counsel, 
 and an opportunity being given him to examine 
 the witness concerning its contents and the cir- 
 cumstances under which it was made. Sup. 
 Ct., 1874, Union Manf. Co. v. Byington, 1 Hun, 
 44. 
 
 128. An affidavit made several years pre- 
 vious to the trial by one who Is a witness at 
 sucli trial, is not admissible for the purpose of 
 confirming the testimony then given by him. lb. 
 
 129. Affidavits made by witnesses several 
 years after the occurrences stated therein, not 
 with a view to their use as memoranda, are not 
 admissible in evidence as such to refresh the 
 memories of the witnesses ; especially where 
 they are able to testify upon the subject from 
 recollection. lb. 
 
 130. Affidavits in foreclosure Affidavits 
 of the publication and posting of notice of sale, 
 of its service, of the circumstances of the sale, 
 etc., in proceedings for a statutory foreclosure 
 of a mortgage, need not be recorded in order to 
 pass the title to the purchaser at the sale, but 
 are evidence of title without such record. Sup. 
 Ct., 1869, Fritik v. Thompson, 4 Lans. 489. 
 
 131. Whether the U. S. revenue laws require 
 such affidavits to be stamped, gue™? lb. 
 
 182. A deposition talcen de oene esse may 
 properly be admitted in evidence, on proof that 
 the witness is a resident of another State, and 
 not in this State at the time of the trial, but was 
 last heard from at Washington, and that the 
 party desired his attendance but he could not 
 come ; even though it appears that he has been 
 in this State during the preceding term of court, 
 and such party did not subpoena him. N. Y. 
 Supr. Ct, 1874, Sturm v. Atlantic Mut. Ins. Co., 
 38 N. Supr. (6 J. & Sp.) 282. 
 
 133. The refusal of such witness to answer 
 questions on cross-examination is not sufficient 
 ground for excluding a deposition on the trial, 
 but the party objecting should make a motion 
 before the trial to suppress the deposition. lb. 
 
 134. Testimony, otherwise competent, taken 
 upon commission, is not to be rejected because 
 not responsive to the interrogatory. Ct. App., 
 1874, Fassin v. Hubbard, 55 N. Y. (10 Sick.) 
 465. 
 
 135. The rule, that, where a witness testifies 
 positively to facts which may be within his per- 
 sonal knowledge, and the opposite party makes 
 no inquiry to ascertain whether this be so or 
 not, the court must assume tliat he speaks from 
 personal knowledge, applies as well to testimony 
 taken upon commission, as upon oral examina- 
 tion, lb. 
 
 136. Minutes of testimony taken before a 
 surrogate, in proceedings for the revocation of 
 letters of administration are admissible in evi- 
 dence, notwithstanding the provision of the 
 statute requiring the testimony to be reduced to 
 writing and entered by the surrogate in a proper 
 book to be preserved in his office. Ct. App., 
 1874, Haddow v. Lundy, 59 N. Y. (14 Sick.) 
 320. 
 
 137. Minutes of a former trial, kept by an 
 attorney since deceased, are not competent evi- 
 dence, though accompanied byproof that such 
 attorney kept the minutes during the whole 
 trial, and that those offered, according to the 
 recollection of a witness present, have the ap- 
 pearance of being minutes of the entire trial. 
 Ct. App., 1874, Crouch v. Parker, 56 N. Y. (11 
 Sick.) 597. 
 
 138. Testimony taken down by a stenogra- 
 pher, on examination of a defendant as a wit- 
 
 ness before the trial, at the instance of the 
 plaintiff, but not read over to nor signed by him, 
 nor certified by the judge before whom it was 
 taken, nor filed with the clerk, is not admissible 
 in evidence as a deposition ; nor can it be ad- 
 mitted as a memorandum, upon the testimony 
 of the stenographer, that it was the evidence as 
 he took it down, and that he believed it to be 
 correct, unless it appears that the witness cannot 
 state what the defendant swore to on his ex- 
 amination, from recollection, or after refreshing 
 his memory by reading over the paper. Sup. 
 Ot., 1874, Thurman v. Mosher, 1 Hun, 344. 
 
 139. Pleadings. The presumption of the 
 payment of the consideration for land in money, 
 created by the acknowledgment thereof in a 
 deed, may be modified or overcome by allega- 
 tions in a pleading, showing in what manner it 
 was paid or is claimed to have been paid. N. Y. 
 Supr. Ct., 1873, Taylor v. Boey, 36 N. Y. Supr. (4 
 J. & Sp.) 403. 
 
 140. An original answer containing a material 
 admission, for which the defendant has been 
 permitted to substitute an amended answer 
 substituting a denial in place of such admis- 
 sion, may be used by the plaintiff, on the trial, 
 as evidence of the fact so admitted, leaving the 
 defendant to rebut it if he can. Sup. Ct., Sp. T., 
 1871, Strong v. Dwight, 11 Abb. N. S. 319. 
 
 141. TTndertakmg. Neither the affidavit of 
 the plaintiff as the commencement of an action 
 for the recovery of personal property, are the 
 recitals in the undertaking given by the defend- 
 ant for the return of the property, are competent 
 or sufficient evidence that the property taken 
 and redelivered is the same property for which 
 the suit was brought, or of the value therein 
 stated ; especially, where they are indefinite 
 and uncertain in those respects. N. Y. Supr. Ct, 
 1873, Talcott v. Belding, 46 How. 419 ; S. C, 36 
 N. Y. Supr. (4 J. & Sp.) 84. 
 
 V. Public documbnts ; officiai. ceetificates. 
 
 142. Discharges from military service, 
 which appear to be regularly issued, and are 
 recognized by the officers of government, are to 
 be presumed genuine and authentic, and are 
 evidence that the persons named in them are 
 real persons and were in such military service, 
 although their names do not appear on the 
 muster-roll of the company to which they are 
 claimed to have belonged. Sup. Ct., 1874, Thomp- 
 son V. Fargo, 48 How. 93; S. C, 2 Hun, 379. 
 
 143. Executive order. The executive order 
 of the President of the United States, dated 
 October 20, 1862, declaring that the insurrection 
 had temporarily subverted and swept away the 
 civil institutions of the State of Louisiana, in- 
 cluding the judiciary and judicial authorities of 
 the Union, is not conclusive evidence of those 
 facts, and will not overcome the positive evi- 
 dence, furnished by a certified judicial record, 
 that a civil court was in active existence, issuing 
 process and obtaining recognition from citizens 
 and obedience from litigants. Ct App., 1871, 
 Pepin T. Lachenmeyer, i5 N. Y. (6 Hand,) 26. 
 
 144. A grant by the State of vacant, un- 
 enclosed and unoccupied lands is prima facie 
 evidence of title, and a prior grant under which 
 no entry is shown to have been made within 
 20 years will be presumed to be extinguished. 
 Sup. Ct Cir., 1874, Becker v. Howard, 47 How. 
 423. C. P. Becker v. Holdridge, 47 How. 429. 
 
 145. Letters of administration in due 
 form, produced in evidence, are sufficient to estab- 
 lish the representative character of the person 
 
EVIDENCE. 
 
 289 
 
 named therein as administrator, in a suit by 
 him. Sup. Ct., 1875, Parhan y. Moran, 4 Hun, 717. 
 
 146. Northampton tables. In an action to 
 recover damages for tlie breach of a contract to 
 support tHe plaintiff during life, the Northampton 
 tables may properly be admitted in evidence for 
 the purpose of showing the probabilities as to his 
 continuance in life, as a basis for determining 
 the amount of damages to be given. Sup. Ct., 
 1878, Shell V. Plumb, 46 How. 11; AfPd, 65 N. 
 Y. (10 Sick.) 592. 
 
 147. Order lajring road. An order of the 
 highway commissioners laying out a highway, 
 which is received in evidence without objection, 
 is, it seems, prima facie evidence of their juris- 
 diction, though not conclusive. Sup. Ct., 1871, 
 Cooper V. Bean, 5 Lans. 318. 
 
 148. A record, purporting to be the record of 
 a highway laid out by the proper commissioners, 
 which fails to show upon its face that jurisdic- 
 tion was acquired, cannot be aided by intend- 
 ment or presumption based upon the fact that 
 the commissioners were public officers acting in 
 the discharge of a public duty ; and especially is 
 this so when such a record is set up to justify 
 an entry upon another's land, which entry, except 
 for the highway, would be a clear trespass. Ct. 
 App.,161i, Miller y. Brown, 66 N, Y. (11 Sick.) 
 383. 
 
 149. Parish record. A parish or church 
 record, the keeping of which is optional and not 
 by authority, is not competent evidence on the 
 question of the legitimacy of a child. Com. 
 App., 1873, Bradford v. Bradford, 61 N. Y. (6 
 Sick.) 669. 
 
 150. Record of conveyance. The record 
 of a conveyance duly recorded, or a tran- 
 script thereof duly certified, is, under the pro- 
 visions of the Revised Statutes, made orig- 
 inal and primary evidence, and it is not neces- 
 sary in the first instance to prove a loss or 
 destruction of the original. Ct. App., 1872, 
 Clark V. Clark, 47 N. Y. (2 Sick.) 664. 
 
 161. A satisfaction piece of a judgment 
 given to the debtor by the judgment creditor is 
 evidence against the latter of his receipt of the 
 money due on the judgment, in an action by one 
 to whom he had previously assigned the judg- 
 ment for money had and received. Sup. Ct, 
 
 1871, Booth y. Farmers and Mechanics Nat. Bank, 
 4 Lans. 301 ; AfE'd S. C, 60 N. Y. (5 Sick.) 396, 
 
 162. Such an instrument, which shows on its 
 face that it was executed by the president of the 
 corporation in whose favor the judgment was 
 recovered, in his official capacity, is prima facie 
 evidence against the corporation of its receipt 
 of the money, although not executed in the 
 name or under the seal of the corporation. S. C, 
 60 N. Y. (5 Sick.) 396. 
 
 163. Tax deed. A tax deed executed pur- 
 suant to the act of 1823, though made conclu- 
 sive evidence of the regularity of the sale, is not 
 conclusive that the redemption notice was given, 
 that being subsequent to the sale. Ct App., 
 
 1872, Westbrook v. Wille!/, 47 N. Y. (2 Sick.) 457. 
 
 164. A deed executed for non-payment of 
 taxes in the city of Brooklyn is made, by sec. 
 33, of ch. 384, Laws of 1864, evidence of the 
 regularity of the sale and other proceedings 
 connected with the sale ; but not of the assess- 
 ment, or other proceedings had before the right 
 to sell attached. Ct App., 1874, Rathbone v 
 Eooney, 68 N. Y. (13 Sick.) 463. 
 
 165. A comptroller's deed for taxes, executed 
 under the statute of 1856, is presumptive evi- 
 dence of the regularity of the sale and of all prior 
 proceedings, .including the assessment of the 
 
 19 ' 
 
 land,; but this statute presumption may be met 
 and overthrown by proof. Ct. App., 1873, John- 
 son V. Elwood, 53 N. Y. (8 Sick.) 431. 
 
 156. Official certificate. The certificate of 
 an officer is evidence only of facts which, by law, 
 he is required or authorized to certify. Ct App. 
 1871, Board of Water Commissioners of Cohoes v. 
 Lansing, 45 N. Y. (6 Hand,) 19. 
 
 157. The certificate or report of two out of 
 three appraisers, appointed in proceedings to 
 condemn private property, who were by law, re- 
 quired to examine the property, estimate its 
 value, and report the sum, is no evidence that 
 the appraisers all met and acted together, though 
 that fact be recited therein. lb. 
 
 168. In an action to determine the right to an 
 office, the canvassers' certificate is prima facie 
 evidence of election, but it is not conclusive, and 
 may be overcome by oral evidence. Sup. Ct., 
 1874, People exrel. Stemmler v. McGuire] 2 Hun, 
 269 ; Aff'd, 60 N. Y. (15 Sick.) 640. 
 
 169. Such certificate may be impeached for 
 error or fraud, by the testimony of individual 
 voters, and they may be compelled to disclose 
 how or for whom they voted. Ct. App., 1874, 
 People ex rel. Judson v. Thacher, 65 N. Y. (10 
 Sick.) 626. 
 
 160. A certificate made by the comptroller of 
 the currency, under the act of Congress relative 
 to a national currency (13 U. S. Stat at Large, 
 99, sec. 50), with the concurrence of the Secretary 
 of the Treasury, of the existence of the facts 
 authorizing him to appoint a receiver of a na- 
 tional bank, is sufficient evidence of the validity 
 of his appointment in an action brought by such 
 receiver. Com. App., 1874, Piatt v. Beebe, 67 
 N. Y. (12 Sick.) 339. 
 
 161. A copy of the certificate of organization 
 of a national bank, C duly certified by the comp- 
 troller of the currency, as required by the act of 
 Congress, is relevant and material upon the 
 question of its corporate existence and right to 
 maintain an action as a corporation, and in con- 
 nection with other facts tending to show that it 
 has acted as a corporation under such certificate, 
 is sufficient to take the case to the jury. N. Y. 
 Supr. Ct, 1872, Merchants Exch. Nat. BankyOf 
 Memphis V. Cardozo, 35 N. Y. Supr. (3 J. & Sp.) 
 162. 
 
 162. It is not necessary for such bank to prove 
 the publication of the comptroller's certificate of 
 compliance with the provisions of the act, under 
 sec. 18 of the act of Congress creating national 
 banks, to enable it to maintain a suit. Ih. 
 
 163. If the signatures to a notice of mechanic's 
 lien are -not proved or acknowledged, a copy 
 thereof, though certified by the county clerk, is 
 not admissible as evidence of the due filing of 
 the proper notice of lien. Whether it would be 
 evidence if the noti&e was so proved or acknowl- 
 edged, query f Sup. Ct., 1874, Simpson v. Buff. 
 N. Y. %■ Phila. R'y Co., 2 Hun, 512, 
 
 164. A school commissioner's certificate of the 
 qualification of a teacher, is not conclusive evi- 
 dence thereof, as between the teacher and the 
 trustees. It is prima facie evidence, only, and 
 may be rebutted by direct evidence of a want 
 of the necessary qualifications. Sup. Ct, 1872, 
 Gillis V. Space, 63 Barb. 177. 
 
 165. A certificate of the provost-marshal as to 
 the number of men credited to a certain town 
 as furnished for the military service, is not con- 
 clusive, there being no law requiring records of 
 matters of that character to be kept, but errors 
 in such certificate may bo shown by other com- 
 petent evidence. Sup, Ct, 1871, Hathaway v. 
 Town of Homer, 6 Lans. 267. 
 
290 
 
 EVIDENCE. 
 
 166. A sheriff's certificate of the redemption 
 of land sold on execution is primo^cjc evidence 
 of the facts stated in it. Such certificate in con- 
 nection with his deed, are sufficient, unrebutted, 
 to establish the regularity of the proceedings to 
 redeem ; and they may be presumed from the 
 recitals in the deed. Sup. Ct., 1872, Rice v. 
 Davis, 7 Lans. 393. 
 
 167. The original certificate of redemption 
 may be used in evidence on appeal, where a 
 copy only was produced on the trial, the orig- 
 inal being supposed lost. lb. 
 
 168. A receipt for a certain sum of money, 
 signed by the sheriff, containing the title of a 
 a cause, and stating that " said money was so 
 paid — to redeem property sold under an execu- 
 tion in the above entitled cause on the, etc., 
 situated, etc. ; the above amount being in full 
 for the, purchase-money and interest at 10 per 
 cent, for all the property sold by me on that day 
 under s'ald execution," is in substance a sufficient 
 certificate of redemption under the statute of 
 1847 ; and that, together with an indorsement 
 thereon in the handwriting of the attorney of the 
 execution debtor, that he " paid the sheriff the 
 above money and took the receipt for" the 
 debtor, is admissible in evidence to establish 
 such redemption, in an action to determine the 
 claims to the premises, after the death of all the 
 parties engaged in such redemption. Supr. Ct., 
 Sp. T., 1873, Elsworth v. Muldoon, 46 How. 246 ; 
 S. C, 15 Abb. N. S. 440. S. P., Livingston v. Ar- 
 noux, 15 Abb. N. S. 158 ; Bowers v. Arnoux, 33 
 N. Y. Supr. (1 J. & Sp.) 530. 
 
 169. A sheriff's receipt for moneys paid on 
 the redemption of lands sold upon execution, 
 though given prior to the enactment of chapter 
 410, Laws of 1847, up to which time none was 
 required by law, is competent e^vidence, after the 
 death of the parties concerned^ of the fact and 
 time of payment. Ct. App., 1874, Livinaston v. 
 Arnoux, 56 N. Y. (11 Sick.) 507. 
 
 170. Such a receipt is admissible as. a written 
 admission by the officer, made against his inter- 
 est and in respect to a matter pertaining to his 
 official duty, and is evidence, after his death, as 
 well of the fact against his interest, as of the 
 other incidental and collateral facts mentioned, 
 and this irrespective of the question whether or 
 not any privity exists between the officer wlio 
 made it and the party against whom it is offered. 
 lb. 
 
 171. The- provisions of the act of 1847, re- 
 quiring the officer making sale, on redemption 
 of the lands sold, to certify sufficient of the 
 facts to show the redemption, applies as well to 
 redemptions made by the judgment debtor as by 
 creditors ; and a receipt given by the sheriff to 
 the judgment debtor, reciting such facts, though 
 not formally stated to be a certificate, is a sub- 
 stantial compliance with the statute, and as such 
 is evidence of the facts contained in it. lb. 
 
 172. Notary's certificate. Something more 
 than a verified answer is necessary to destroy 
 the effect of a notarial certificate as evidence, 
 under sec. 8, ch. 271, Laws of 1833 (4 Edm! 
 Stats. 619), of the facts of presentment for pay- 
 ment and protest for non-payment of a bill or 
 note. Com. App., 1872, Gaivtry v. Doane, 51 N 
 Y. (6 Sick.) 84 ; Aff'g 48 Barb. 138. 
 
 173. The affidavit, to have that effect, must 
 be annexed to the answer, and must be positive 
 and unequivocal in its terms. lb. 
 
 174. Foreign record of protest. Under 
 the provision of ch. 309, Laws of 1865 (6 Edm. 
 Stats. 467), that in any action upon a bill of ex- 
 change, &0., payable in any other of the United 
 
 States, such proof of the presentment, demand, 
 refusal, protest and notice may be made as is 
 authorized by the law of the State where it is 
 payable, a record of the demand and protest of 
 a note payable in New Orleans, and ot the man- 
 ner in which and the persons upon whom notices 
 were served, shown to be an original entry made 
 by and in the handwriting of a deputy notary, 
 duly appointed, as authorized by the laws of 
 Louisiana, by the notary in whose books such 
 record was made, is competent evidence of those 
 facts, after the death of such deputy. Sup. Ct., 
 1872, Fassin v. Hubbard, 61 Barb. 548. 
 
 175. Officer's return. The return of a con- 
 stable upon a summons is presumptive evidence 
 that he has served it as stated in the return, but 
 such presumption may, at the proper time and 
 in the proper manner, be overcome, especially 
 as against the party instituting the proceedings. 
 Sup. Ct., 1862, Waring v. McKinlev, 62 Barb. 612. 
 
 176. A sheriff's return of nulla bona on, an 
 execution is prima facie evidence of the insolv- 
 ency of the judgment debtor. Sup. Ct., 1875, 
 Yates V. Hoffman, 5 Hun, 113. 
 
 VI. Becitals. 
 
 177. In assignment. A recital in an assign- 
 ment of a chose in action, not negotiable, from 
 the apparent owner, that it was for value, is no 
 evidence of that fact as against the true owner, 
 even though such assignment was introduced in 
 evidence by him. Ct. App., 1873, Moore v. Me- 
 tropolitan National Bank, 55 N. Y. (10 Sick.) 41. 
 
 178. In deed. A recital in a deed that the 
 grantors have succeeded to the title of the orig- 
 inal patentees, binds only the parties to it and 
 privies in blood or estate, and is not evidence of 
 that fact as against strangers or those who claim 
 by title paramount. Ct. App., 1871, Harden- 
 burgh v. Lakin, 47 N. Y. (2 Sick.) 109. 
 
 179. Sale on execution. Although recitals 
 in a sheriff's deed that execution was issued and 
 delivered to him, and that he sold the land under 
 it, may not be sufficient to establish those facts, 
 in a case where the execution has not been re- 
 turned and is not produced, yet, after the lapse 
 of many years, such recitals, supported by the 
 testimony of the sheriff, and by the production 
 of his entries made at the time in his register, 
 are sufficient. Sup. Ct., 1873, Phillips v. Shifi 
 fer, 14 Abb. N. S. 101; S. C, 7 Lans. 347|; 64 
 Barb. 648. 
 
 Vn. Peivate whitings; books; ekibies; 
 
 LETTERS ; HElI0BA2n>A. 
 
 180. Account-books. Tfooks of original 
 entries not made by the plaintiffs themselves, 
 but by bookkeepers employed for that purpose, 
 who merely entered sales reported to them by 
 the persons who made the sales, are not admissi- 
 ble in evidence in an action to recover a balance 
 of account for goods sold and delivered, on proof 
 of the handwriting of the bookkeepers, where 
 the sales are not remembered by the salesman 
 making them, nor otherwise proved. Sup. Ct., 
 1871, GoaU V. Omway, 69 Barb. 356. 
 
 181. Neither can such books be received as 
 original memoranda, to aid in establishing an 
 indebtedness, unless it be in a case where the 
 salesman saw the charge made by the book- 
 keeper, and then knew that it was correctly 
 made, though he has since forgotten the fact 
 that the sale was made by him. lb. 
 
 182. In an action by a surviving partner, for 
 work done and materials furnished by the firm 
 
EVIDENCE. 
 
 291 
 
 to the defendant, a book of account containing 
 entries thereof kept by the deceased partner, as 
 to >yhich the plaintiff testified, that, at the time 
 the entries were made, he knew them to be cor- 
 rect; that he kept all the memoranda from 
 which they were transcribed ; that they were 
 usually written on a slate kept for that purpose, 
 and transcribed from that into the book by the 
 deceased partner, every day, or within two or 
 ■ three days afterwards ; that witness generally 
 assisted, reading them from the slate, some of 
 the items having been taken orally from the 
 workmen and some from himself ; that he saw 
 most of the entries at the time they were made 
 or soon after, and believed the book produced 
 to be the original, and that the firm did the 
 work ; is sufficiently authenticated to be admis- 
 sible in evidence, and the plaintiff may properly 
 be permitted to read therefrom to supply the 
 dates and amounts of the several items which 
 he could not otherwise give. Sup. Ot., 1874, 
 Krom v. Schenck, 47 How. 97 ; S. C, 1 Hun, 171. 
 
 183. Books of account of a third party, who 
 is deceased, containing an account against a 
 husband, consisting of debt and credit, are not 
 admissible in evidence in an action against such 
 husband and his wife, brought by a judgment 
 creditor of the husband to charge his debt upon 
 th« separate estate of the wife, for the purpose 
 of showing that the husband had paid for mate- 
 rials furnished for a house built by the wife on 
 her separate estate. Sup. Ct., 1871, Isham v. 
 Schafer, 60 Barb. 817. 
 
 184. Pass-books containing debit and credit 
 entries of an account between the employe of a 
 firm and his employers, shown to have been or- 
 dinarily in possession of the employe, but from 
 time to time handed to the bookkeeper of the 
 firm to be written up, who made all necessary 
 entries therein and returned them, — Held, to con- 
 stitute accounts rendered, and to be admissible 
 in evidence between the parties, whether such 
 entries were original entries, or were transcribed 
 from other books. N. Y. Supr. Ct., 1874, Burke 
 Y. Wolfe, 38 N. Y. Supr. (6 J. & Sp.) 263. 
 
 185. The books of a firm, consisting of day- 
 book, journal, ledger, cash-book and blotter, 
 kept by a bookkeeper, and verified by his tes- 
 timony that he had the entire ciiarge of them, 
 and made aU the entries therein in the discharge 
 of his duties as book-keeper, and in the ordinary 
 course of the business of the firm, and that such 
 entries were correctly made, and were original 
 entries, and that the greater part of the moneys 
 charged against an employe were paid to him 
 by such book-keeper, are admissible as evidence 
 of the account of the firm with such employe. lb. 
 
 186. It seems to be now settled in this State, 
 that a party may introduce his books of account 
 in evidence, and supply, if he can, the prelimin- 
 ary proof of their correctness by his own oath,' 
 when it is made to appear that he had no clerk ; 
 or, if he had one, that such clerk is dead. lb. 
 
 187. If the entries were made by a clerk or 
 book-keeper, and he is living and competent to 
 testify, he must be produced and testify to the 
 facts which will make the books evidence. lb. 
 
 188. To be admissible, such an entry must be 
 of a class which it was the duty of the person to 
 make, or which belonged to the transaction, as 
 a part thereof ; and the person making it must 
 have had competent knowledge of the fact, or it 
 must have been a part of his duty to know it, 
 and there must have been no particular motive 
 to make a false entry in respect to it more than 
 any other, and the entry must have been made 
 at or about the time of the transaction recorded. 
 
 It ia then original evidence as part of the res 
 gestae. lb. 
 
 189. If the person who made the entry is dead 
 or being called has no recollection of tlie trans- 
 action, but testifies to his uniform practice to 
 make all his entries truly, and at the time of the 
 transaction, and has no doubt of ihe accuracy of 
 the one in question,- such entry is considered suf- 
 ficient as original evidence to establish the fact, 
 ib. 
 
 190. Books of account are admissible in evi- 
 dence of payments of cash on account. Ib. 
 
 191. The ledger of a party, not purporting to 
 contain the original entries, does not furnisli the 
 best evidence of the transactions therein-record- 
 ed, and he has no right to insist upon having it 
 read in evidence, even if he does testify that it 
 is a correct record of his dealings with his ad- 
 versary. N. Y. Supr Ct., 1872, Vilmar v. Schall, 
 35 N. Y. Supr. (3 J. & Sp.) 67. 
 
 192. Neither entries in the books of a party, 
 nor his sworn testimony, are admissible as 
 against a deceased person, in regard to a per- 
 sonal transaction with such deceased, such as 
 the advancing of money by him to tlie deceased. 
 Sup. Ct., 1874, Elmore v. Jaques, 2 Hun, 130 ; 
 Rev'd by Ct. App. 
 
 193. Entries in books, tending to show to whom 
 credit was given, are not conclusive, but may 
 always be explained and the truth of the trans- 
 action be shown independent of them. U. S. 
 Sup. Ct., 1872, Steamer Patapsco, 43 How. 301. 
 
 194. The books of a corporation are compe- 
 tent evidence, as between its stockholders, to 
 show the acts of the corporation ; and sworn 
 copies of such books are likewise competent. Ct. 
 App., 1872, Hubbelt v. Meigs, 50 N. Y. (5 Sick.)- 
 480. Such books are also admissible to sliow 
 the rules of the society. N. Y. C. P., 1869, Aber- 
 nathy v. Society of the Church of the Puritans, S 
 Daly, 1. 
 
 195. The books of a corporation, proved to 
 have been kept by its treasurer, in the business 
 of tlie company, and to be in his handwriting, 
 are admissible in evidence after his death, in an 
 action wherein such company is interested. Sup. 
 Ct., 1872, Chettango Bridge Co. v. Lewis, 63 Barb. 
 111. 
 
 .196. The books of a toll-bridge company, 
 proved by its treasurer to have been kept by 
 himself, and to contain correct entries of tolls as 
 reported to him by the toll-gatherer, coupled 
 with the testimony of the toll-gatherer that he 
 made correct report to the treasurer of the tolls 
 received by him, are admissible in evidence to 
 show the amount of tolls received during a par- 
 ticular period. Ib. 
 
 197. But books, said to be or purporting to be 
 the books of such corporation, are not entitled 
 to be received in evidenoe, upon mere proof by 
 the treasurer that they were received by him as 
 the company's books, upon his accession to the 
 office, or upon proof that they are in the hand- 
 writing of the former treasurer as toll-gatherer. 
 Ib. 
 
 198. Entries in the books of a bank, made by 
 its discount clerk, can only be proved by the 
 clerk making them if he is alive and in the State. 
 Ct. App., 1874, Ocean Nat. Bank of New York v. 
 Carll, 55 N. Y. (10 Sick.) 440. 
 
 199. Ancient deed. A deed, executed in 
 1760 to a person who died in 1790, when accom- 
 panied with proof of possession in 1806 by a per- 
 son claiming as heir of the grantee, may be read 
 in evidence as an ancient deed, witliout proof of 
 its execution. Ct. App., 1871, CahiU v. Palmer, 
 45 N. Y. (6 Hand,) 478. 
 
292 
 
 EVIDENCE. 
 
 200. Ancient lease. An indenture of lease, 
 dated 77 years before the commencement of a 
 suit to recover rent reserved, and shown to have 
 been in existence and in the possession of the 
 grantor's devisee and his assigns for more than 
 26 years, is admissible'in evidence in such action 
 without proof of its execution, or of seizin in the 
 grantor. Sup. Ct., 1872, Lyon v. Adde, 63 Barb. 89. 
 
 201. "Where such indenture was executed in 
 1794 to Abner Bull, and the suit was commenced 
 in 1864, against a person in possession under a 
 deed which did not describe the premises as in 
 the original indenture ; — Held, that proof by a 
 witness who conveyed the premises to defend- 
 ant's grantor in 1817, that previous to 1813 and 
 at tlie time of his conveyance they were known 
 and called a part of the Abner Bull farm, is suf- 
 ficient to identify the premises held by the de- 
 fendant as part of those included in the lease, so 
 as to make that evidence against him. In the 
 absence of proof to the contrary, it will be pre- 
 sumed that the person who owned the farm at 
 that date was the same person as tlie grantee in 
 the lease, and that he owned but that one farm, 
 lb. 
 
 202. Ackno-wledged assignment. An as- 
 signment of and power of attorney to transfer 
 stock, duly acknowledged by a subscribing wit- 
 ness, in the same manner as conveyances of real 
 estate, is, under sec. 9, ch. 271, Laws of 1833 (4 
 Edm. Stats. 620), competent evidence of the 
 transfer, and tlie acknowledgment may be 
 made at any time before the paper is offered in 
 evidence. Com. App., 1874, Holbrook v. N. J. 
 Zinc Co., 57 N. Y. (12 Sick.) 616. 
 
 203. Attested instrument. An instrument, 
 purporting to be attested by a subscribing wit- 
 ness, may be proved as if there were no such 
 witness, if the person who put his name to it as 
 such witness did so without the knowledge or 
 consent of the parties. Sup. Ct., 1868, Sherwood 
 V. Pratt, 63 Barb. 137. 
 
 204. Bill of lading. Where a plaintiff, seek 
 ing to charge a common-carrier for a loss of 
 goods forwarded, offers in evidence the bill of 
 lading of the goods, which contains a clause 
 limiting the liability of such carrier, the whole 
 instrument must be taken together, and he can 
 recover only according to its terms. N. T. C. P., 
 1871, Wetzell V. Dinsmore, 4 Daly, 193. 
 
 205. Blank application for insurance. In 
 an action upon a policy of insurance, the ordi- 
 nary printed form of application in use by the 
 company is not admissible to show what were 
 the contents of a particular application. N. T. 
 Supr. Ct, 1870, Roelker v. Great Western Insur- 
 ance Company, 2 Sweeny, 275. 
 
 206. Blank poUoy. In an action to reform a 
 contract of insurance by striking out a printed 
 condition, on the ground that the contract was 
 to furnish a policy like one written by another 
 company named, a blank form of policy such as 
 was issued bj' the latter, not containing such a 
 condition, is competent evidence, and ft is not 
 necessary that the copy actually written by it 
 should be produced. Ct. App., 1873, Van Tyne 
 V. Westchester F. Ins. Co., 55 N. Y. (10 Sick.) 
 657. 
 
 207. Bond, not sealed. A writing in the 
 form of a bond, but not under seal, conditioned 
 for the performance of a certain agreement 
 therein set forth, is admissible in evidence in an 
 action upon such agreement, although the com- 
 plaint sets out a simple agreement merely, with- 
 out showing it to be in writing. Com. App., 
 1874, Tuttle v. Hannegan, 54 N. Y. (9 Sick.) 686; 
 AfE'g S. C, 4 Daly, 92. 
 
 208. A carrier's receipt for property receiv- 
 ed to be carried and delivered to a consignee 
 therein named, is not evidence a« against such 
 consignee that it was received on his account, 
 without some evidence of an order or agreementj 
 or of some usage or custom of trade from which 
 an agreement may be inferred, that the prop- 
 erty should be delivered to the carrier for him. 
 Sup. Ct., 1872, Everett v. Parks, 62 Barb. 9. 
 
 209. Certificate of purchase. A certificate, 
 given by one partner to his copartners, to the 
 effect that lie had purchased their interests in 
 the firm and assumed all liabilities, is competent 
 evidence upon the question of dissolution. Ct, 
 App., 1871, Emerson v. Parsons, 46 N. Y. (1 
 Sick.) 560 ; AfE'g S. C, 2 Sweeny, 447. 
 
 210. Constitution and by-lainrs. In an ac- 
 tion upon a contract between members of the 
 New York Gold Exchange, the provisions of the 
 constitution and by-laws of that association rel- 
 ative to the performance of such contracts, are 
 competent evidence. Ct. App., 1874, Peabody v. 
 Speyers, 56 N. Y. (11 Sick.) 230. 
 
 211. Copies. In an action on a contract where 
 there is testimony that bills for work done were 
 presented to the plaintiff, other bills alleged to 
 be copies, but not copied from nor compared 
 with the bills presented, are not admissible for 
 any purpose, not even to show what bills had 
 been presented. Sup. Ct., 1874, Tyng v. Fields, 
 3 Hun, 75. 
 
 212. The draft of a contract, drawn up in 
 supposed accordance with the agreement be- 
 tween the parties, but not in their language, nor 
 executed by them, is not admissible in evidence. 
 Sup. Ct., 1875, Floods. Mitchell, 4 Hun, 813. 
 
 218. An unsigned 'writing in the form of a 
 contract, with proof of the oral_ assent of the 
 parties thereto, is evidence of the contract be- 
 tween them. N. Y. Supr. Ct., 1873, Dutch v. 
 Mead, 86 N. Y. Supr. (4 J. & Sp.) 427. 
 
 214. Letters written by a party containing 
 declarations or admissions, are admissible in 
 evidence without the production of letters to 
 which they are answers, only when they relate 
 to a controverted question in the case so as to 
 become material ; and a party has no right to 
 introduce packages of such letters in mass, 
 without showing their materiality. N. Y. Supr. 
 Ct., 1873, Dainese v. Allen, 45 How. 430 ; S. C, 
 14 Abb. N. S. 363 ; 36 N. Y. Supr. (4 J. & Sp.) 
 98. 
 
 215. Neither are they admissible for the pur- 
 pose of charging the person addressed with 
 notice, without proof that they were properly 
 mailed and forwarded to his address. lb. 
 
 216. A letter containing an unconditional 
 authority to the person addressed to draw on 
 the writer for a certain sum is admissible in 
 evidence, without producing a letter therein re- 
 ferred to as received from the other party, or 
 proving its contents. N. Y. Supr. . Ct., 1872, 
 Merchants Exch. Nat. Bank of Memphis, y. Car- 
 dozo, 35 N. Y. Supr. (3 J. & Sp.) 162. 
 
 217. Letters written by a party to a suit, 
 which conflict with his testimony taken on the 
 trial, are admissible in evidence for the adverse 
 party. Sup. Ct., 1874, Darrow v. Northrop, 1 
 Hun, 431. Even after his death and where he 
 was not questioned in regard to them on the 
 trial. Sup. Ct., 1874, English v. Steele, 1 Hun, 
 716. 
 
 218. Letters written by a third person, not a 
 party to the suit, are not admissible in eyidenoe, 
 being mere unsworn statements. A party who 
 has examined the writer as a witness cannot 
 read the letters for the purpose of impeaching 
 
EVIDENCE. 
 
 293 
 
 the witness. Sup. Ct., 1873, Hildreih v. Shep- 
 ard, 65 Barb. 266. 
 
 219. Letters from an agent to his principal 
 cannot be given in evidence against a third per- 
 son. Sup. Ct., 1874, Porter X. Parks, 2 Hun, 651 
 
 220. In an action against a carrier for breach 
 of contract, a letter written by the agent of the 
 plaintiff who had charge of the shipment, and 
 received by the defendant, containing such 
 agent's statement of the contract as he claimed 
 it, is admissible in evidence on the part of the 
 defendant. Ct. App., 1871, Sttergess v. Bissell, 
 46 N. Y. (1 Sick.) 462. 
 
 221. A letter written by the president of a cor- 
 poration, directing the publication of a certain 
 advertisement, — Held, competent evidence in an 
 action against such corporation for the price of 
 publication. N. Y. Supr. Ct., 1870, Ahem v. 
 Standard Life Ins. Co., 2 Sweeny, 441. 
 
 222. In an action by a factor to recover goods 
 on which he claims a lien for advances, the in- 
 tention of his consignor to pass the property to 
 him instanter, upon shipment, may in the ab- 
 sence of a bill of lading, be shown by other doc- 
 uments transmitted and the correspondence of 
 the parties. N. Y. C. P., 1871, Heard v. Brewer, 
 4 Daly, 136. 
 
 223. If, after a dissolution of a partnership one 
 of the two former partners is sued alone, the 
 letters of the other are not admissible in evi- 
 dence against him either as admissions, or as 
 tending to prove general facts in the case. Ct". 
 App., 1870, Williams v. Manning, 41 How. 454. 
 
 224. As to such facts, the partner not sued is 
 a competent witness, and must be called. Where 
 the plaintiff has averred as a reason for not su- 
 ing such former partner, that he is insolvent, he 
 cannot claim that he is a party in interest, and 
 therefore represents the solvent party. lb. 
 
 225. A letter which is competent for the pur- 
 pose for which it is offered, is not rendered in- 
 admissible by its containing other facts which 
 are incompetent. Ct. App., 1872, Dutchess Com- 
 pany V. Harding, 49 N. Y. (4 Sick.) 321. 
 
 226. A letter purporting to have been written 
 by a person and mailed at his place of residence 
 is not admissible in evidence against him, upon 
 mere proof of its receipt by the party addressed, 
 without further evidence that it was written or 
 authorized by the alleged author. Ct. App., 1874, 
 Nichols V. Kingdom Iron Ore Co., 66 N. Y. (11 
 Sick.) 618. 
 
 227. The allowance of parol proof of the con- 
 tents of such a letter, does not obviate the ne- 
 cessity of proving its genuineness, but renders it 
 more imperative. lb. 
 
 228. In an action for a divorce on the ground 
 of adultery, brought by a husband against his 
 wife, the plaintiff cannot be permitted to intro- 
 duce in evidence a letter from the alleged para- 
 mour of the defendant, to her, written about the 
 time of the alleged adulterous intercourse, which 
 was intercepted by the plaintiff, and never came 
 to her knowledge or possession, whether it con- 
 fesses the adultery or not. Sup. Ct., 1869, Hobby 
 V. Hobby, 64 Barb. 277. 
 
 229. Nor is such letter admissible, as a whole, 
 to contradict the testimony given by the writer 
 as a witness, where it is not wholly contradictory 
 thereof ; nor are the parts which are contradic- 
 tory of his testimony admissible, unless his at- 
 tention has preyiously been called thereto. lb. 
 
 - 230. Maps and plats, showing the present 
 risible condition of the premises in respect to 
 which the action has arisen, are admissible to 
 explain, illustrate and apply testimony, after be- 
 ing proved to be correct by the surveyor or en- 
 
 gineer who made them. Sup. Ct, 1875, Cnrtiss 
 V. Ayrault, 3 Hun, 487. 
 
 231. A map of land made for the owner of the 
 entire tract, and exhibited to purchasers and re- 
 ferred to in deeds of parcels thereof, is admissi- 
 ble in evidence between subsequent grantees on 
 a question as to their boundaries. Sup. Ct., 
 1872, Kingsland v. Chittenden, 6 Lans. 16. 
 
 232. Master's protest. In an action by the 
 purchasers of a vessel against their vendors to 
 recover damages for fraud in its sale, the prote'st 
 of the master of the vessel in their employ, made 
 in a port of distress and used by them to obtain 
 insurance money from the insurers, is admissi- 
 ble against them as their own declaration on the 
 question of the soundness of the vessel. Ct. 
 App., 1871, Atkins v. Elwell, 45 N. Y. (6 Hand,) 
 753. 
 
 233. Measurers' returns of grain measured 
 by them, though proved, as between buyer and 
 seller, to be received and acted upon as evidence 
 of the amount sold, — Held, no evidence as 
 against a carrier, to prove a shortage in the 
 quantity delivered. Com. App., 1873, Bissel v. 
 Campbell, 54 N.. Y. (9 Sick.) 353. 
 
 234. Memoranda. A written memorandum 
 of facts, made by a witness at or about the time 
 when they occurred, may be used to refresh his 
 memory, and if he is then unable from memory 
 to testify to such facts the memorandum may be 
 admitted as an auxiliary or aid to the witness, 
 but if the witness on the trial testifies clearly 
 and distinctly to such facts, the memorandum is 
 not admissible. N. Y. Supr. Ct., 1873, Driggs v. 
 Smith, 45 How. 447 ; S. C, 36 N. Y. Supr. (4 J. 
 & Sp.) 283. 
 
 .236. It is indispensable, in order to entitle a 
 memorandum to be read in evidence, that the 
 witness producing it should verify the handwrit- 
 ing as his own. If he cannot do so, nor recollect 
 anything about the matter independently of the 
 memorandum, it should be rejected ; especially 
 where it is an entry in a book in a public office 
 with which the witness has no official connec- 
 tion, and it has been defaced and a similar entry 
 made by some one else of a subsequent date. 
 Ct. App., 1876, Gilchrist v. Brooklyn Grocers 
 Man/. Co., 59 N. Y. (14 Sick.) 495. 
 
 236. A witness may use, to refresh his memory, 
 a copy made by himself of his own memoranda 
 on proof of the loss of the original. Sup. Ct., 
 1872, Filkins v. Baker, 6 Lans. 516. 
 
 237. A witness who is accustomed to keep 
 daily memoranda in detail of labor and services 
 performed, and have the items written out at the 
 end of the week in his presence and by his 
 direction, may use such writing as an original 
 memorandum to refresh his memory. lb. 
 
 238. A memorandum made by a custom 
 house officer of the valuation of a cask of wine, 
 as stated in the importer's application for a per- 
 mit to land it, is not admitsible in evidence 
 against such importer, without evidence con- 
 necting him with such memorandum. Sup. Ct., 
 1872, Arend v. LiverpoolN. Y.^Phila. Steamship 
 Co., 6 Lans. 457 ; S. C, 64 Barb. 118. 
 
 239. A copy of scattered original memoranda, 
 containing a statement in detail of facts already 
 testified to by a witness, is competent to be read 
 in evidence. Ct. App., 1872, McCormick v. Penn. 
 Central R. R. Co., 49 N. Y. (14 Sick.) 303. 
 
 240. Books of original entry, and also books 
 containing accounts transcribed from lost books 
 of original entry, are competent as memoranda 
 of witnesses by whom they were made, and who 
 testify to the delivery of the items charged, and 
 witnesses may examine them for the purpose of 
 
294 
 
 EVIDENCE. 
 
 refreshing their memory, and read the same 
 from the books. Sup. Ct., 1872, Green y. Dis- 
 brow, 7 Lans. 381. 
 
 241. A bill of items proved to have been 
 copied from the books, is competent as a copy 
 of memoranda, at least to show what charges 
 were actually made. lb. 
 
 242. Charges in books and accounts, which 
 are proved by the testimony of the party and 
 his clerks by whom they were made, are entitled 
 to consideration, although other items in the 
 same account are not so sustained. lb. 
 
 243. Where a party testifies from memoranda 
 made by him in a book, not put in evidence, as 
 to moneys paid for or loaned to tlie adverse 
 party, and the latter offers the remaming por- 
 tion of the book in evidence, it is error to admit 
 the book only so far as it relates to transactions 
 between the parties and exclude it as to other 
 parts, against the objection of the party so of- 
 feruig it, and thereby affect his right to investi- 
 gate fully and test the correctness of the entries 
 admitted by reference to other entries. Sup. 
 Ct., 1874, Read v. Smith, 1 Hun, 263. 
 
 244. In an action for moneys in the hands of 
 the defendant belonging to the plaintiff, entries 
 made by the plaintiff's deceased jvife in a memo- 
 randum book, of moneys delivered by her to the 
 defendant, are not admissible in evidence. Sup. 
 Ct., 1871, Miller v. Clark, 6 Lans. 388. 
 
 246. A memoranduni check is admissible 
 in evidence to sustain a general count for money 
 had and received. Brooklyn City Ct., 1872, 
 Turnbull v. Osborne, 12 Abb., N. S. 200. 
 
 246. Newspaper report. In an action 
 against a railroad company for personal injuries 
 received by a passenger, where the author of a 
 newspaper report of the accident, published soon 
 after its occurrence, testified that it contained 
 the facts obtained by him at tlie scene of the 
 accident, but that he was unable to state from 
 whom he obtained them, or to identify the par- 
 ticular fact sought to be proved as the statement 
 of the plaintiff, — Held, that such report was not 
 admissible in evidence on behalf of the defend- 
 ant. Ct. App., 1871, Downs v. New York Cen- 
 tral R. R. Co., 47 N. Y. (2 Sick.) 83. 
 
 247. Order, contingent. An order for 
 money, by its express terms made payable out 
 of a specific fund, not then in existence but con- 
 tingent upon some future event, with the in- 
 dorsement of tlie payee upon it, is not evidence 
 in behalf of one suing the maker, as assignee, 
 of his title to such order or to the indebtedness 
 for which it was given. Ct. App., 1871, Kenny 
 V. Hinds, 44 How. 7. 
 
 248. — unstamped. An orderfor articles sold 
 is admissible in evidence in an action founded 
 on the sale, although not stamped, as required 
 by the U. S. Revenue laws. Congress having no 
 power to prescribe what may or may not be evi- 
 dence in the coBrts of this State. Sup. Ct., 
 1871, Gilbert v. Sage, 5 Lans. 287. 
 
 249. A policy of insiirance is admissible in 
 evidence in an action thereon, without the pro- 
 duction of the application therein referred to and 
 declared to be a part of the contract. Sup. Ct., 
 1875, Cushman v. U. S. Life Ins. Co., 4 Hun, 783. 
 
 260. Price current lists, pubhshed in a news- 
 paper, are not competent evidence of the market 
 value of goods mentioned in them, without some 
 proof showing how or in what manner they were 
 made up, where the information contained in 
 them was obtained, or whether the prices quoted 
 were derived from actual sales or otherwise. Ct. 
 App., 1876, Whelan v. Lynch, 60 N. Y. (15 Sick.) 
 409. 
 
 251. A receipt given by a party purporting 
 to be in full of all demands against another 
 party, is not conclusive as against the former, 
 but he may show a mistake as to the facts, and 
 that he only intended to give a receipt for the 
 sum actually received. Sup. Ct., 1874, Board- 
 man y. Gaillard, 1 Hun, 217. 
 
 252. Writing with third party. In an ac- 
 tion for the price of milk sold tp defendant, 
 wherein evidence is given tending to show that 
 one Stone acted simply as defendant's agent or 
 servant in manufacturing the milk into cheese, 
 a written agreement between the defendant and 
 Stone is not admissible in evidence to contradict 
 that state of facts, it being inter alios acta. Sup. 
 Ct., 1872, Seymour v. Matteson, 42 How. 496. 
 
 VUL Handwriting ; heabsat. 
 
 253. Hand'writing. The handwriting of a 
 man is liable to be affected by his mental and 
 physical condition and by other circumstances ; 
 and to give weight to the opinions of experts in 
 handwriting against the genuineness of the sig- 
 nature of a will, it should be supported by 
 strong corroborative evidence. Supr. Ct., 1871, 
 Taylor. Will Case, 10 Abb. N. S. 300. 
 
 254. Such opinion, formed merely upon ex- 
 amination of photographic copies of signatures, 
 is entitled to but little weight. lb. 
 
 255. In a case where the genuineness of a sig- 
 nature is questioned, it is not competent for the 
 purpose of establishing its genuineness against 
 the party to be charged thereby, to show that 
 it is not in a simulated handwriting. Ct. App., 
 1872, Rowing v. Manley, 13 Abb. N. S. 276 ; S. 
 C, 49 N. Y. (4 Sick.) 192. 
 
 256. Upon the question of the genuineness of 
 the signature of a subscribing witness to an in- 
 strument presented in evidence, an expert may 
 be allowed to point out the dissimilarity be- 
 tween such signature and the signature of the 
 same person to another instrument, by testify- 
 ing that the one is a natural and the other an 
 unnatural hand ; that there is a difference in 
 the color of the ink, and the writing and slant 
 of the hand, so that, if one is genuine be should 
 reject the other ; provided such expert has been 
 acquainted with the handwriting of the person 
 whose signature is claimed to have been forged, 
 or the other instrument with which the com- 
 parison is made, is properly in evidence for 
 other purposes. Sup. Ct., 1872, Goodyear v. Vos- 
 burgh, 63 Barb. 184. 
 
 267. But another instrument, purporting to 
 be signed by the same person, cannot be intro- 
 duced in evidence merely for the purpose of 
 getting a signature for comparison with the one 
 alleged to be a forgery, when otherwise incom- 
 petent, lb. 
 
 258. The handwriting of a document whose 
 genuineness is disputed may be compared with 
 other documents admitted to be genuine, and 
 properly in evidence for other purposes ; and 
 witnesses may describe all the facts in respect 
 to the condition and appearance of the paper 
 and handwriting ; and as to those matters which 
 require special skill and scientific research to 
 discover and explain, an expert may be called 
 upon to testify ; but no witness is permitted to 
 give his opinion as to the genuineness of the 
 writing in question, based solely upon a com- 
 parison of the documents in evidence. N. Y. 
 Supr. Ct., 1874, Frank v. Chemical Nat. Bank of 
 N. Y., 37 N. Y. Supr. (5 J. & Sp.) 26. 
 
 269. For the purpose of enabling the witnesses 
 and the jury the better to compare i>nd discover 
 
EVIDENCE. 
 
 295 
 
 the diSerences between the disputed and the 
 genuine documents, if any, photographic copies 
 and photographic magnified copies thereof are 
 admissibie. lb. 
 
 260. For the purpose of showmg the genuine- 
 ness of a signature in controversy in an action, 
 it is not admissible to compare it with signa- 
 tures to other papers, unless those are in evi- 
 dence in the cause and are material to the issue, 
 or perhaps admitted to be genuine ; much less 
 is testimony of an expert in handwriting, giving 
 a comparison of the characteristics of the letters 
 in such signatures, the manner of their forma- 
 tion, and the movements by which they were 
 formed, admissible for that purpose. N. Y. 
 Supr. Ct., 1871, Morey v. Safe Deposit Co., 34 N. Y. 
 Supr. (2 J. & Sp.) 164 
 
 261. In an action on a note, defended on the 
 ground of forgery, it is not competent to intro- 
 duce in evidence, for the purpose of comparing 
 the signatures, other notes of the same party, 
 some of which are admitted genuine and others 
 claimed to be forgeries, but none of which are 
 competent for any other purpose. Com. App., 
 1872, Randolph v. Loughlin, 48 N. Y. (3 Sick.) 
 466. 
 
 262. A witness called to prove the signature 
 of another may properly be asked, for the pur- 
 pose of showing the means and extent of his 
 knowledge, how many times and how often he 
 has been called upon to pass and act upon such 
 signature ; but he cannot, either for that pur- 
 pose or for the purpose of comparison, be in- 
 quired of as to the genuineness of the same 
 man's signature to other papers produced and 
 shown him on cross-examination. Com. App., 
 1871, Bant of the Commonwealth v. Mudgett, 44 
 N. Y. (6 Hand,) 514 ; Aff'g, S. C, 45 Barb. 663. 
 
 263. Proof by subscribing -witness. When 
 an instrument is attested, the attesting witness 
 ought to be produced at the trial to prove it, 
 and when the instrument is lost or destroyed, 
 the witness if known must still be called. It is 
 error, in the latter case, to admit a copy of the 
 instrument without calling the witness. N. Y. 
 Supr. Ct, 1874, Hewitt v. Morris, 37 N. Y. Supr. 
 (6 J. & Sp.) 18. 
 
 264. An objection on the trial, that the wit- 
 ness must be produced to prove " his attesta- 
 tion," is sufficient ; attestation and execution 
 being used as synonymous terms. lb. 
 
 266. Hearsay. A pedigree may be proved 
 by hearsay, but the place of birth cannot be. 
 The declarations of one's parents to him or to 
 others, are therefore inadmissible for that pur- 
 pose. Sup. Ct., 1872, McCarty v. Terry, 7 Lans. 
 236. S. P. McCarty v. Deming, 4 Xans. 440. 
 
 266. Grants of land or dispositions of money 
 made by a deceased person to his children, can- 
 not, as against such children, be shown to have 
 been advancements, by testimony as to state- 
 ments made by the deceased to a third person, 
 they being mere hearsay. Sup. Ct., 1871, <San- 
 Jord V. Sanford, 6 Lans. 486 ; S. C, 61 Barb. 
 293. 
 
 267. Testimony by a witness to statements 
 made to him by certain machinists, as to the 
 damage and injury done to the machinery in 
 question in the suit, and of its value afterwards, 
 is inadmissible, being mere hearsay, although 
 connected with a statement by the same witness 
 as to the price paid for the injured article by 
 the same machinists. N. Y. Supr. Ct, 1874, 
 Color Printing Attachment Co. v. Brown, 37 N. Y. 
 Supr. (5 J. & Sp.) 433. 
 
 268. In an action to recover damages for the 
 wrongful detention of stock, after the plaintiff 
 
 had rescinded his sale thereof to the defendant 
 on the ground of false representations made by 
 the latter as to its value, letters written by the 
 president of the company to the plaintiff pre- 
 vious to or about the time of the sale, but not 
 received until afterwards, stating the great suc- 
 cess of the company, are not admissible as evi- 
 dence of the value of the stock, being mere 
 hearsay ; nor are thej' admissible to show by 
 what information he was induced to rescind the 
 sale. N. Y. Supr. Ct, 1872, Burnham v. Thurman, 
 34 N. Y. Supr. (2 J. & Sp.) 636. 
 
 269. In an action against a railroad company 
 for an injury received by a passenger in at- 
 tempting to alight from a train, alleged to have 
 been caused by defendant's negligence, evi- 
 dence is not admissible, on the part of the plain- 
 tiff, for the purpose of explaining her haste in 
 making the attempt, that she understood that , 
 the train stopped there but a short time, and 
 that the station agent's wife had so told her. 
 Sup. Ct, 1875, Taber v. Del., Lack. W.R. R. Co., 
 4 Hun, 766. 
 
 IX. BUBDEN OF PKOOP. 
 
 270. In general. A stipulation made in an 
 action to set aside an award, " that each party 
 should read in evidence such portions of the 
 testimony before the arbitrator as he desired 
 to be in evidence in the case," does not relieve 
 the plaintiff from the burden of sufficiently 
 proving his case ; and if he fails to read enough 
 of the evidence for that purpose the defendant 
 may take advantage of the defect. N. Y. Supr. 
 Ct, 1874, Fudickar v. Guardian Mut. Life Ins. 
 Co., 37 N. Y. Supr. (5 J. & Sp.) 358. 
 
 271. Advancement. Where an advance- 
 ment to plaintiff is set up as an equitable de- 
 fense to an action of ejectment by an heir-at- 
 law, for an undivided share of premises of 
 which the ancestor died seized, the burden of 
 proving, not only the coniwyance by way of 
 advancement, but also that such advance- 
 ment was equal or superior to the share which 
 the plaintiff would have been entitled to receive 
 out of the real and personal estate of the de- 
 ceased, is upon the defendant. Sup. Ct., 1872, 
 Bell V. Champlain, 64 Barb. 396. 
 
 272. Alteration. Where an alteration of an 
 instrument appears suspicious on its face, and is 
 not duly noted, the burden of proof lies with the 
 party asserting its genuineness. N. Y. C. P., 
 1871, O'Donnell v. Harmon, 3 Daly, 424. 
 
 273. Authority. A party who sets up title to 
 land, under a sale for non-payment of an assess- 
 ment for street improvements, must show the 
 authority to sell, which includes a compliance 
 with all the material steps that must precede a 
 sale. Sup. Ct, 1871, Hopkins v. Mason, 42 How. 
 115 ; S. C, 61 Barb. 469. 
 
 274. Bona fide holder. The presumption 
 that one to whom the payee of a promissory 
 note has indorsed and delivered it is a bona fide 
 holder for value, is not overcome by proof of a 
 want or failure *f consideration between the 
 maker and payee, but the burden of proof that 
 he is not is upon the maker. Ct. App., 1876, 
 Mech's & Tr. Nat. Bank of N. Y. v. Crow, 60 
 N. Y. (15 Sick.) 86. 
 
 275. The rule that, when a note is procured by 
 duress or fraud, the burden rests upon the 
 holder to show title, does not apply to the case 
 of a note taken by an agent in his own name for 
 property of his principal sold by him as his 
 own ; but, in the absenee of evidence to the con- 
 trary, the holder is to be pronounced a bona fide 
 
296 
 
 EVIDENCE. 
 
 holder. N. Y. Supr. Ct, 1873, Pollard, v. Roche 
 36 N.-Y. Supr. (4 J. & Sp.) 301. 
 
 276. Tlie purchaser before maturity of a prom- 
 issory note is presumed, in the first instance, to be 
 a bona fide holder ; but when the maker has 
 shown fraud or duress in its execution, the 
 burden is then thrown upon the holder to prove 
 that he gave value for it, and the circumstances 
 under which he received it. Ct App., 1871, First 
 National Bank of Cortland v. Green, 43 N. Y. 
 (4 Hand.) 298. S. P. Bailey v. Griswotd, 36 
 N. Y. Supr. (4 J. & Sp.) 68. 
 
 277. Proof that a note has been diverted from 
 the purpose for which it was delivered, casts 
 upon the one suing it the onus of showing that 
 he is a bona fide holder, or has succeeded to the 
 rights of one. Ct. App., 1871, Farmers' 4r 
 Citizens' National Bank v. Noxon, 45 N. Y. (6 
 Hand,) 762. 
 
 278. In an action on a promissory note by an 
 assignee, the defendant may, under an answer 
 setting up that fact, show that the note was 
 given for the loan of moneys which were ob- 
 tained on a sale of stolen government bonds, and 
 by that means cast upon the holder the burden 
 of showing himself to be a bona fide holder. 
 Sup. Ct., 1872, Porter v. Knapp, 6 Lans. 125. 
 
 279. Bona fide purchaser. Where goods 
 fraudulently purchased are found in the posses- 
 sion of a third party, the onus rests upon him to 
 show that he is a bona fide purchaser. Ct. App., 
 1873, Devoe v. Brandt, 53 N. Y. (8 Sick.) 462. 
 So, also, where there is evidence tending to show 
 guilty knowledge in the defendant of the fraud 
 
 , of his immediate vendor. Sup. Ct., 1874, Solo- 
 mon v. Van Praag, 48 How. 338. 
 
 280. In an action to recover negotiable bonds 
 alleged to have been stolen from the plaintiff, 
 proof that they were so stolen shortly before 
 their purchase by the defendant, raises a pre- 
 sumption of a want of consideration in their 
 transfer, and imposes upon the holder the obliga- 
 tion of proving that the purchase was made for 
 value and in good faith, in order to sustain his 
 title. Sup. Ct., 1874, Dutchess Co. Mut. Ins. Co. 
 V. Hachfield, 47 How. 330 ; S. C, 1 Hun, 675. 
 
 281. By force of the statute of frauds, a sale 
 without an actual and continued change of pos- 
 session of the goods sold is presumptively fraudu- 
 lent, and the burden of proof is upon the party 
 claiming under the sale, to show that it was 
 made in good faith, and without any intent 
 to defraud creditors. Sup. Ct., 1875, HoUacher 
 V. O'Brien, 5 Hun, 277. The same rule applies 
 where there was a joint or concurrent possession 
 of buyer and seller after the sale. N. Y. Supr. 
 Ct., 1873, Jones v. O'Brien, 36 N. Y. Supr. (4 J. & 
 Sp.) 58. 
 
 282. Damages. A party who, on breach of a 
 contract, brings his action, not to rescind the 
 contract, but to recover damages for the breach, 
 thereby affirms the contract, and cannot recover 
 back the consideration paid, but must prove the 
 breach and the amount of damages sustained. 
 Ct. App., 1874, Quinn v. Van Pelt, 56 N. Y. (11 
 Sick.) 417; Rev'g S. C, 36 MfY. Supr. (4 J. & 
 Sp.) 279. 
 
 283. In an action ex delicto against an attorney 
 for a breach of his professional duty, after 
 receiving a stipulated fee for services to be per- 
 formed, the burden of proving the damages sus- 
 tained is upon the plaintiff. lb. 
 
 284. In an action against an attorney for 
 negligence in searching for assessments on cer- 
 tain real estate, which plaintiff purchased in re- 
 liance upon his certificate, the burden of proof is 
 on the defendant to show that the plaintiff has 
 
 sustained no damage, by reason of his remedy 
 remaining on the covenants in his deed, and not 
 on the latter to prove tlie contrary. Com. App., 
 
 1871, Morange v. Mix, 44 N. Y. (5 Hand,) 315. 
 286. Debt of corporation. In an action 
 
 against trustees of a manufacturing corporation 
 to enforce their personal liability for a debt 
 of the corporation, founded on their neglect 
 to file an annual report, the burden of proof is on 
 the plaintifE to show that. the debt was con- 
 tracted by tlie corporation, or by its authority. 
 N. Y. Supr. Ct., 1870, Dabney v. Stevens, 10 Abb. 
 N. S. 39 ; S. C, 2 Sweeny, 415 ; Aff'd, 46 N. Y. 
 (1 Sick.) 681. 
 
 286. Demand. The promise of an indorser, 
 after the maturity of a note, to pay it, furnishes 
 prima fiicie evidence as against him of a legal de- 
 mand from the maker and refusal of payment, 
 and throws the burden upon him of proving 
 a want of such demand. N. Y. C. P,, 1871, 
 Brennan v. Lowri/, 4 Daly, 253. 
 
 287. iSiligence.' In an action against a ware- 
 houseman to recover for the loss of goods in his 
 custody caused by his negligence, proof of a 
 demand for the delivery of the goods, and of 
 his neglect or refusal to deliver or produce the 
 same, is sufficient to cast the burden of proof of 
 diligence in the care and custody of the property 
 upon him. N. Y. Supr. Ct., 1873, Coleman v. 
 Livingston, 36 N. Y. Supr. (4 J. & Sp.) 32 ; S. C, 
 again, id. 231. 
 
 288. Discovery. An answer of the statute of 
 limitations to a complaint in an equitable action 
 founded upon fraud, throws upon the plaintifE 
 the burden of proving that he did not discover 
 the fraud until within six years preceding the 
 commencement of the action. N. Y. Supr. Ct., 
 
 1872, Baldwin y. Martin, 14 Abb. N. S. 9 ; S. C, 
 35 N. Y. Supr. (3 J. & Sp.) 85. 
 
 289. Disposal of collaterals. In a suit 
 against the indorser of a note, the burden of 
 proof is upon the defendant, alleging that the 
 plaintifE has improperly disposed of collaterals 
 received by him, to show that fact. Sup. Ct., 
 1875, Vose Y. Yulee, 4 Hun, 628. 
 
 290. Excuse for neglect of duty. A letter 
 from an agent in China for the purchase of silks, 
 in answer to the complaints of his principal for 
 his failure to buy according to his instructions, 
 excusing such neglect on the ground that he 
 thought it best to delay purchasing in hope of 
 a further decline in prices, is sufficient proof, 
 prima facie, that he might have executed the 
 order had he not voluntarily refrained ; and 
 throws the burden upon him of showing the exist- 
 ence of any impediments justifying his failure 
 to act. Ct. App., 1872, Heinemann v. Heard, 50 
 N. Y. (5 Sick.) 27 ; Rev'g S. C, 58 Barb. 524. 
 
 291. Exemption. In an action, to recover 
 personal property alleged to be exempt, which 
 has been taken on execution, proof that the 
 plaintifE is a householder, that the property taken 
 was his carpenter tools, necessary for his use, 
 and that the same were not worth more than 
 $250, is sufficient to establish their exempt 
 character. He need not show that he does not 
 own any other property. N. Y. Supr. Ct., 1873, 
 Reinecke V. Flecke, 35 N. Y. Supr. (3 J. & Sp.) 
 491. 
 
 292. If a carrier seeks to relieve himself from 
 liability for a loss of goods entrusted to him, on 
 the ground that his liability was limited by con- 
 tract, the burden of proof is upon him to show 
 that the cause of the loss was within the exemp- 
 tions of his contract. N. Y. Supr. Ct., 1871, 
 Knell V. U. S. and Brazil Steamship Co., 38 N. Y. 
 Supr. (1 J. & Sp.) 428. 
 
EVIDENCE. 
 
 297 
 
 293. EztOTtion. In an action to recover back 
 money claimed to have been extorted by duress 
 of goods, the burden of proof is upon the plain- 
 tiff to show tliat he did not owe the defendant 
 the money paid him in order to get possession 
 of the goods, but that the same was unjustly 
 extorted from him. Ct. App., 1874, Briqgs v. 
 Boyd.mS.Y. (11 Sick.) 289; Aff'g S. C., 65 
 Barb. 197. 
 
 294. Fraud. A creditor who seeks to take 
 advantage of false and fraudulent representa- 
 tions, made by the debtor to obtain credit as 
 an aid in the collection of the debt, must estab- 
 lish the fraud by clear and substantial evidence. 
 Sup. Ct., 1872, Sullivan y. Warren, 43 How. 188. 
 
 295. In an action on a policy of insurance, the 
 burden of establishing fraud in the valuation of 
 the goods is upon the insurer, over-valuation not 
 being per se evidence of fraud. N. Y. Supr. Ct., 
 1874, Sturm V. Atlantic Mut. Ins. Co., 38 N. Y. 
 Supr. (6 J. & Sp.) 282. 
 
 296. In an action involving the question of 
 fraud in a sale of goods, as against creditors, 
 where a fraudulent intent cannot under the cir- 
 cumstances be presumed against the purchaser, 
 it is not necessary for him to disprove it. Where 
 the facts proved are such as to carry the ques- 
 tion to the jury, and the}' find against it, their 
 finding is conclusive. Sup. Ct., 1863, Knight v. 
 Forward, 63 Barb. 311. 
 
 297. In an action to recover damages for 
 fraud on the part of the defendant, in issuing a 
 pamphlet containing false and deceptive state- 
 ments relating to certain mining property, 
 whereby the plaintiff was Induced to subscribe 
 and pay for stock in a mining company, which 
 was in fact worthless, the burden of proof is 
 upon the plaintiff to show that the defendants 
 caused the pamphlet to be issued and published ; 
 that it contained false or deceptive statements 
 which were calculated to mislead or deceive 
 him ; and that he was in fact deceived and mis- 
 led thereby, and relied thereon. N. T. Supr. Ct., 
 1873, Morgan v. Skiddy, 36 N. Y. Supr. (4 J. & 
 Sp.) 152. 
 
 298. Every legal presumption is against a 
 fraudulent intent, and the burden of proving 
 that the omission to put the necessary revenue 
 stamp upon a promissory note was with intent 
 to evade the Revenue laws, is upon the party 
 objecting to it on that ground. Sup. Ct., 1872, 
 Baker v. Baker, 6 Lans. 509. 
 
 299. Insolvency of maker. In an actiop 
 against an express company for negligence in 
 not bringing a suit upon a note entrusted to it 
 for collection as ordered, in which it sets up the 
 insolvency of the maker as a defense, the bur- 
 den of proving that fact is upon the defendant. 
 Com. App., 1872, Palmer v. Holland, 51 N. Y. 
 (6 Sick.) 416. 
 
 800. Jurisdiction of surrogate. Where the 
 intestate, on whose estate letters of adminis- 
 tration have been granted, is shown to have 
 died in the county of the surrogate granting 
 them, the onus is upon him who disputes the 
 title and authority of the administrator, to show 
 affirmatively a want of jurisdiction. Ct. App. 
 1873, Welch v. New York Central Railroad Co., 
 53 N. Y. (8 Sick.) 610. 
 
 301. It rests with one who contests the pro- 
 bate of a will executed in Europe, by a former 
 citizen of this State, on the ground that it is not 
 executed in conformity to the laws of the coun- 
 try where it was made, to show that the testator 
 had formed the intention of changing her domi- 
 cil, or that the circumstances of the ease were in- 
 consistent with an intention to retain her orig- 1 
 
 inal domicil. Sup. Ct., 1872, Dupuy v. Seymour, 
 64 Barb. 156. 
 
 802. Kno'wledge of minority. In an ac- 
 tion under section 16 of the excise act of 1857 
 (4 Edm. Stats. -51), to recover the penalty for 
 selling liquor to a minor, the burden is on the 
 plaintiff to show that the defendant knew, or 
 had reason to believe, that the person to whom 
 the sale was made was under the age of 18 
 years. Cora. App., 1871, Perry v. Edwards, 44 
 N. Y. (5 Hand,) 223. 
 
 803. Liability of estate on note of exec- 
 utor. In an action by an indorsee on a note 
 signed by an executor as such, seeking to charge 
 the estate therewith, the plaintiff must show that 
 the cause of action arose upon a contract made 
 by the testator in his life, by proving the claim 
 of his indorser against the testator ; that it was 
 not extinguished by the giving and acceptance 
 of the note ; and that such original claim has 
 become his by assignment, at least to the extent 
 of the note sued on. N. Y. Supr. Ct., 1874, Cary 
 V. Gregory, 38 N. Y. Supr. (6 J. & Sp.) 127. S. P., 
 Bloodgood v. Gregory, id. 132. 
 
 304. The bare indorsement of the note is 
 wholly insufficient to prove the assignment of 
 the original claim. lb. 
 
 305. Marine loss. In an action on a policy 
 of marine insurance as for a total loss, the bur- 
 den of proof is on the plaintiff to show either a 
 total physical loss, or a total loss of value to the 
 owner ; but it is for the defendant to show that 
 such loss did not arise from any of the causes 
 insured against, not for the plaintiff to show that 
 it did. N. Y. Supr. Ct., 1872, Young v. Pacific 
 Mut. Ins. Co., 34 N. Y. Supr. (2 J. &. Sp.) 321. 
 
 306. Negligence. In an action against car- 
 riers for a loss of goods by negligence, proof that 
 the goods were delivered to the carriers, and that 
 they were or professed to be unable to give any 
 account of them whatever afterward, is suffi- 
 cient to justify a finding of loss by negligence, 
 or, if necessary, by gross negligence, without 
 other proof thereof, and the burden is upon the 
 defendant to negative the fact of negligence. 
 Sup. Ct., 1872, Westcott V. Fargo, 6 Lans. 319 ; 
 S. C, 63 Barb. 349. 
 
 307. The failure of a carrier to produce a pas- 
 senger's baggage when demanded, prima facie, 
 establishes negligence and want of care, and 
 throws upon the carrier the onus of accounting 
 for the default. Ct. App., 1871, Burnell v. N. Y. 
 Central R. R. Co., 45 N. Y. (6 Hand,) 184. 
 
 308. The prima facie effect of that fact is not 
 overcome by proof that the defendant's ser- 
 vants were ordinarily careful, or that its bag- 
 gage room was properly guarded night and day. 
 They must show the exercise of due care as to 
 the particular article. lb. 
 
 309 In an action against a railroad company, 
 to recover the value of property destroyed by 
 fire through its negligence, when it is made to 
 appear that the fire was set by sparks flying di- 
 rectly from the engine and alighting on the prop- 
 erty, the burden is upon the defendant of show- 
 ing that the engine was in perfect condition, and 
 furnished with the most approved apparatus in 
 use for arresting sparks, and that such appara- 
 tus was at the time in good order. Sup. Ct., 1871, 
 Case V. Northern Cent. R. R. Co., 59 Barb. 644. 
 
 810. Where a loss has been occasioned by the 
 apparent negligence of a ferryman, in not pro- 
 viding safe and sufficient means to perform what 
 he has undertaken to the public, the burden is 
 upon him to show that the accident was not oc- 
 casioned by his fault. Ct. App., 1873, Wyckojf 
 V. Queens County Ferry Co., 52 N. Y. (7 Sick.) 32. 
 
298 
 
 EVIDENCE. 
 
 311. An error in transcribing the direction, 
 and a consequent misdelivery of a telegram, are 
 prima yhrie proof of negligence in the operator, 
 and throw the burden upon the telegraph com- 
 pany of explaining the error an4 showing that 
 it occurred without fault. Ct. App., 1871, Bald- 
 win V. United States Telegraph Co., 45 N. Y. (6 
 Hand,) 744. 
 
 312. In an action for injuries to a horse in the 
 hands of a bailee for hire, the burden rests with 
 the custodian to show how the injuries occurred, 
 and that he was not guilty of negligence causing 
 it. Ct. App., 1871, CoUins V. Bennett, 46 N. Y. 
 (1 Sick.) 490. 
 
 313. In an action for injuries received from 
 the falling of the wall of a building adjoining a 
 street upon a person lawfully using the street, 
 the burden of proof is upon the owner of the 
 building to show that it was safe so far as a 
 diligent examination would show. Sup. Ct., 
 1875, Vincett t. Cook, 4 Hun, 318. And that he 
 exercised reasonable care. Com. App., 1874, 
 MulUn V. St. John, 57 N. Y. (12 Sick.) 567. 
 
 314. In an action against a railroad company 
 to recover damages for an injury sustained by 
 a passenger, proof that the car on which he rode 
 was overturned by reason of the breaking of a 
 rail, and he, without imputation of negligence 
 on his part, sustained serious injury, makes a 
 prima facie case of negligence, and casts upon the 
 company the burden of proving that its road 
 was free from any defects which the utmost vig- 
 ilance, aided by the highest skill, could discover 
 or prevent. N. Y. C. P., 1871, BrignoU v. Chi. 
 ir Great Eastern Ry. Co., 4 Daly, 182. 
 
 315. In an action for injuries caused by negli- 
 gence, the burden of proving negligence on the 
 part, of the defendant causing or contributing to 
 the injury rests upon the plaintiff. N. Y. Supr. 
 Ct., 1871, Ryan v. Hudson Riv. R. R. Co., 33 N. 
 Y. Supr. (IJ. & Sp.) 137. S. P. Pixley v. Third 
 Ave. R. R. Co., id. 406. 
 
 316. In an action to recover damages for 
 an injury caused by negligence, the plaintiff, in 
 order to recover, must satisfy the jury that he 
 was not guilty of negligence which contributed 
 to produce the injury ; but he need not make 
 such proof in the first instance, unless the cir- 
 cumstances disclosed by his own witnesses tend 
 to show him guilty of negligence. Sup. Ct., 
 1873, Robinson v. N. Y. Cent. ^ Hud. Riv. R. R. 
 Co., 66 Barb. 146. S. P. Dickson v. Broadway 
 4r Seventh Ave. R. R. Co., 41 How. 151 ; 33 N. Y. 
 Supr. (1 J. & Sp.) 330 ; Backford v. N. Y. Cent, 
 etc. R. R. Co., 13 Abb. N. S. 18 ; 6 Lans. 381 • 
 43 How. 222 ; Van Lien v. Scoville Man/. Co.' 
 14 Abb. N. S. 74 ; 4 Daly, 554 ; Squire v. Cent 
 Park, N. Sj- E. Riv. R. R. Co., 36 N. Y. Supr. 
 (4 J. & Sp.) 436. 
 
 317. In an action against a carrier upon a 
 contract whereby it is absolved from all lia- 
 biUty except for negligence, the burden of 
 proof is upon the plaintiff to show such negli- 
 gence, and not upon the defendant to negative 
 it. Ct. App., 1872, Cochran v. Dinsmore, 49 
 N. Y. (4 Sick.) 249. S. P., Lamb v. Camden and 
 AmboyR. R. %■ T. Co., 46 N. Y. (1 Sick.) 271 • 
 Eev^g S.C, 2Daly, 454. - 
 
 318. In an action for damages caused by the 
 explosion of a steam boiler used by the owner 
 on his own premises, the plaintiff must show 
 some fault or negligence on the part of such 
 owner, otherwise he cannot recover. Com. 
 App., 1873, Lessee v. Buchanan, 51 N. Y. (6 
 Sick.) 476 ; Rev'g S. C, 61 Barb. 86. 
 
 319. Non-discharge of debt. In an action 
 upon a judgment of a foreign court, where the 
 
 defendant pleads a discharge under a foreign 
 bankrupt act, the burden of proof is upon the 
 plaintiff to show that his claim was not dis- 
 charged thereby. N. Y. Supr. Ct., Harrison v. 
 Lourie, 49 How. 124. 
 
 320. Non-payment. In an action upon a 
 guaranty of the payment of a mortgage, con- 
 tained in an assignment thereof, where the com- 
 plaint shows that the plaintiff has foreclosed 
 the mortgage and realized part payment there- 
 by, and alleges the non-payment of a certain 
 sum, and the answer alleges that the property 
 was worth more than the amount due, and that 
 the defendant is ignorant of the amount realized 
 at the sale, the burden of proof is on the plaintiff 
 to show that he has not been paid the amount 
 alleged. N. Y. Supr. Ct., 1872, Schlesinger v. 
 Hexter, 34 N. Y. Supr. (2 J. & Sp.) 499. 
 
 321. Other employment obtainable. In 
 an action by a school teacher against the 
 trustee of a school district, to recover damages 
 for his refusal to permit her to enter upon and 
 perform her duties as teacher, in pursuance of 
 her contract with his predecessor in office, proof 
 of the contract and of her offer specifically to 
 perform, throws upon the defendant the burden 
 of proving that by reasonable exertion she 
 might have obtained other like employment in 
 the vicinity. Sup. Ct., 1872, Gillis v. Space, 
 63 Barb. 177. 
 
 322. In an action by an employe, who has 
 been wrongfully discharged before the expirar 
 tion of his term, to recover damages for such 
 breach of contaict, the burden of proof is upon 
 the defendant to show the absence of proper 
 effort on the part of the plaintiff to obtain other 
 employment. N. Y. C. P. 1873, Polk v. Daly, 
 14 Abb. N. S. 156 ; S. C, 4 Daly, 411. 
 
 323. Performance of condition. In an 
 action to recover the price of goods shipped 
 under an agreement that they shall be paid for 
 on their arrival at the place of destination, the 
 seller must prove that they actually .arrived at 
 that place. No presupiption that they did so 
 arrive arises from the fact that they were 
 shipped for such place by railroad or by 
 steamer. N. Y. Supr. Ct., 1874, See v. Bern- 
 heimer, 38 N. Y. Supr. (6 J. & Sp.) 40. 
 
 324. Release. Where one of several joint 
 debtors claims the benefit of a release given to 
 another, the burden is upon him to show that 
 the release was such as barred the plaintiff of 
 his action against all who were jointly liable, 
 and not a special and limited one, such as might 
 have been given under the act of 1838 (ch. 267, 
 Laws of 1838 ; 4 Edm. Stats. 450), authorizing 
 a compromise of the liability of individual joint 
 debtors. Ct. App., 1872, Bolen v. Crosby, 49 
 N. Y. (4 Sick.) 183. 
 
 326. The- burden of proving that , a release 
 under seal and expressing a valuable considera- 
 tion, executed by a guardian, was not made in 
 good faith, but in fraud of the riglits of the 
 ward, is upon the latter, if he seeks to impeach 
 it after coming of age. Ct. App., 1874, Torry 
 V. Black, 58 N. Y. (13 Sick.) 185 ; Bev'g S. C, 
 65 Barb. 414. 
 
 326. Representations and guaranty. 
 Where the answer sets up representations and 
 a guaranty as an affirmative defense to an ac- 
 tion for goods sold, it is for the defendant to 
 prove them. N. Y. Supr. Ct., 1874, Goodwin v. 
 Hirsch, 37 N. Y. Supr. (5 J. & Sp.) 503. 
 
 327. Residence. In order to overcome the 
 defense of the statute of limitations by showing 
 that the defendant has resided out of the State, 
 the burden of proof is first upon the plaintiS, 
 
EVIDENCE. 
 
 299 
 
 but prima fade proof is sufficient to shift tlie 
 burden upon the defendant, his actual residence 
 being a fact peculiarly within his own knowl- 
 edge. Sup. Ct., 1873, Dederich v. McAllister, 49 
 How. 351. 
 
 828. Proof that the defendant has carried on 
 business for a long time at a place out of the 
 State, is sufficient to raise a presumption that he 
 resided there, and casts on him the burden of 
 showing the contrary. lb. 
 
 329. Right to prosecute. If officers whose 
 duty it is to prosecute for a penalty under the 
 excise law move to dismiss a suit commenced 
 by a private person, denying by affidavit that 
 they have neglected or refused to prosecute, 
 he must show on such motion the facts giving 
 him the right to prosecute, although he has 
 alleged them in his complaint. Sup. Ct., 1875, 
 Bartow v. Pease, 5 Hun, 664. 
 
 330. Subsisting lien. On a motion by a 
 defendant, in an action to foreclose a mechanic's 
 lien, for a discharge of the lien on the ground 
 that it has not been renewed, the burden of 
 proof as to its existence or non-existence as a 
 subsisting lien is upon the party who seeks its. 
 discharge. N. Y. Supr. Ct., 1871, McGuckin v. 
 Coulter, 10 Abb. N. S. 128 ; S. C, 33 N. Y. 
 Supr. (IJ. &Sp.) 324. 
 
 331. Tax deed, validity of. A party claim- 
 ing under a tax deed, must show that every 
 material provision of statute designed for the 
 security of the persons taxed, has been sub- 
 stantially complied with. Ct. App., 1870, 
 Cruger v. Dougherty, 43 N. Y. (4 Hand,) 107. 
 
 332. Title to office. "Where the right of a 
 person exercising an office is challenged in a 
 direct proceeding by the attorney-general, now 
 as before the Code, the defendant must establish 
 his title, or judgment will be rendered against 
 him. Possession of the office is no evidence of 
 his right, but the anus is upon him to show, by 
 affirmative proof, that his possession is a legal 
 and rightful one. Ct. App., 1874, People ex rel. 
 Judson V. Thacher, 55 N. Y. (10 Sick.) 525. 
 
 333. The inspector's certificate is prima facie 
 evidence of the votes cast for a particular candi- 
 date at an election, and the burden of proof is 
 upon one contesting his election to overcome 
 such prima facie proof ; but after the falsity of 
 such certificate is shown, the burden of proof is 
 changed, and the effect of the certificate as evi- 
 dence is destroyed. Sup. Ct., 1873, People ex 
 rel. Judson v. Thacher, 7 Lans. 274 
 
 334. Validity. A party who sues to recover 
 money paid by him through mistake to dis- 
 charge an assessment, supposed by him to be 
 against his own land, but which was in fact 
 against defendant's land, must prove the valid- 
 ity of the assessment. N. Y. C. P., 1873, Pfcjn- 
 herger v. Fauerbach, 14 Abb. N. S. 91 ; S. C, 4 
 Daly, 554. 
 
 335. Where the validity of the contract which 
 is the foundation of the action under the statute 
 of frauds, is put in issue by the pleadings, the 
 plaintiff is bound to establish affirmatively the 
 existence of an agreement which is valid under 
 the statute. Ct. App., 1873, Baltzen v. Nicolay, 
 53 N. Y. (8 Sick.) 467; Rev'g.S. C, 35 N. Y. 
 Supr. (3 J. & Sp.) 203. 
 
 336. Violation of la'w. Where a defend- 
 ant sets up as a defense to an action for goods 
 sold, that the same were sold in fraud and in 
 violation of the V. S. revenue law, the burden 
 of proof is upon him to show such violation of. 
 law. Ct. App., 1875, Devlin v. Crary, 60 N. Y. 
 (15 Sick.) 635; AfE'g S. C, 1 Hun, 489. 
 
 837. Wife's property. If a woman who 
 
 was married in England, and subsequently emi- 
 grated to this country, having in her possession 
 money earned by her own labor before and 
 after marriage, claims the money as hers as 
 against the creditors of her husband, the burden 
 of proof is on her to show a change of the title 
 from her husband to herself. N. Y. Supr. Ct., 
 1871, King v. O'Brien, 33 N. Y. Supr. (1 J. & Sp.) 
 49. 
 
 338. Such a transfer is not effected by the 
 force of the statutes of this State ; neither will 
 the fact that both parties supposed the money 
 belonged by law to the wife be sufficient for 
 that purpose ; nor will the husband's acquies- 
 cence in the wife's possession, or his borrowing 
 a part of the money from her and repaying it 
 raise a presumption of a gift or transfer to her. 
 lb. 
 
 339. Wrongful payment. The burden of 
 proving that a payment of his debt by the 
 debtor to his creditor in person, after the same 
 had been assigned. Was made unlawfully, with 
 notice of the assignment, is upon the assignee 
 assertmg it. Sup. Ct., 1876, Meermans v. Ells- 
 worth, 3 Hun, 473. 
 
 X. Best evidbnce ; rblevanot ; compb- 
 
 TBNCT. 
 
 340. Books are the best evidence of what 
 appears therein ; and proof that certain facts do 
 not appear by certain books, which are not pro- 
 duced nor their absence excused, is incompe- 
 tent. Sup. Ct., 1872, Sullivan v. Warren, 43 
 How. 188. 
 
 841. Contract. A memorandum made by the 
 parties to a contract for the exchange of horses, 
 &c., for other property, as to the value of the 
 several horses, is better evidence of the value of 
 a particular horse that died before delivery, in 
 an action upon a subsequent contract to furnish 
 another horse of equal value or pay the valua- 
 tion, than parol evidence of its contents, and 
 should be produced or accounted for. Sup. Ct., 
 1874, Berrian v. Sanford, 1 Hun, 625. 
 
 342. A deposition taken on a commission 
 may properly be received in evidence, upon 
 proof by a witness that he has received letters 
 from the deponent, after the examination and 
 before the trial, from places out of the State, in 
 the absence of any evidence that he afterward 
 returned to the State. Sup. Ct., 1875, Carman 
 V. Kelli/, 5 Hun, 283. 
 
 843. Election. Upon proof that the returns 
 of election made by the canvassers cannot be 
 found in the proper places of deposit, the votes 
 given for particular officers may be shown by 
 the testimony of the poll-clerks and others, who 
 can testify from recollection. Sup. Ct., 1874, 
 People ex rel. Stemmler v. McGuire, 2 Hun, 269. 
 
 844. Marriage. A defendant sued as in- 
 dorser of a promissory note, and setting up as a 
 defense that she was a married woman at the 
 time when the note was made and indorsed, 
 need not prove an actual marriage, by her own 
 testimony or otherwise, but proof of cohabita- 
 tion and repute is admissible, and sufficient to 
 establish that defense. Sup Ct., 1862, Bjock- 
 well V. Funnicliff, 62 Barb. 408. 
 
 345. Notary's record. A book kept by a 
 notary as a record of protests is the best evi- 
 dence of the entries therein ; and if such entries 
 are competent for any purpose, the book should 
 be produced, or be shown to have been lost, be- 
 fore parol evidence of the entries is allowable. 
 Sup. Ct, 1871, Oenet v. Lawyer, 61 Barb. 211. 
 
 846. NoUoe of loss. Assuming that a 
 
300 
 
 EVIDENCE. 
 
 plaintiff, suing on a policy of life insurance, is 
 bound to prove due notice and proof of the death 
 and his interest, evidence that such proofs were 
 delivered at the office of the insurance company 
 is sufficient time before suit is prima facie suffi- 
 cient, without the plaintiff's producing the proofs 
 so furnished, or other proofs of the death, where 
 there is no evidence that any legal objection to 
 such proofs exists. Sup. Ct., 1872, Hincken v. 
 Mut. Benefit Life Ins. Co., 6 Lans. 21 ; Aff'd, S. 
 C, 80 N. Y. _(5'Sick.) 657. 
 
 347. Official character may be proved^rima 
 facie by acts and general reputation. The 
 minutes of a corporation, although the best evi- 
 dence as to who are its officers, are not always 
 required. Sup. Ct., 1873, Pusey v. New Jersey 
 West Line R. R. Co., 14 Abb. N. S. 434. 
 
 348. Contents of letter. Where the per- 
 son to whom a letter is written testifies that he 
 does not know where it is, but believes it has 
 been destroyed, its contents are admissible in 
 evidence. Sup. Ct., 1872, Green v. Disbrow, 7 
 Lans. 381. 
 
 349. The contents of a letter may be proved 
 by parol, where it appears that the person 
 having it in possession is out of the country. 
 Sup. Ct., 1872, Tucker v. Woolsey, 6 Lans. 482 ; 
 S. C, 64 Barb. 142. 
 
 350. Contents of -writing. To render a 
 person competent to testify as to the contents of 
 a writing, he must have seen and read it, and be 
 able to speak from personal knowledge. His 
 having heard it read by another is not sufficient. 
 Ct. App., 1874, Nichols v. Kingdom Iron Ore Co., 
 56 N. Y. (11 Sick.) 618. 
 
 351. Where negotiable notes, past due, are 
 surrendered to the maker upon his giving new 
 ones in exchange, the presumption is that they 
 are destroyed ; and secondary evidence is ad- 
 missible to prove their contents. Ct. App., 1870, 
 Chrysler v. Renois, 43 N. Y. (4 Hand,) 209. 
 
 352. Where the preliminaries of loss and com- 
 parison have been proved, a sworn copy of a 
 carrier's receipt becomes legally of as high an 
 order of proof as the original would have been, 
 and an entry in the books of the carrier is not 
 admissible in evidence to show that the real 
 contract was different. Leonakd and Geat, 
 C. C, dissent. Com. App., 1872, Reid v. United 
 States Express Co., 48 N. Y. (3 Sick.) 462. 
 
 353. Copies. A copy of an account taken 
 from and compared with books of account, is 
 competent testimony, upon proof of the loss of 
 the books. Sup. Ct., 1871, Hildebrant v. Craw- 
 ford, 6 Lans. 502. 
 
 354. A copy of an affidavit made by a cred- 
 itor and presented to the sheriff, for the purpose 
 of redeeming real estate sold on execution, is 
 admissible in evidence, after proof that the orig- 
 inal was so presented, and that search has been 
 made in the county clerk's office for the 
 redemption papers, and that they were not 
 found, and have probably been destroyed, if no 
 distinct objection- is taken to the sufficiency of 
 the search. Sup. Ct. 1872, Rice y. Davis, 7 
 Lans. 393. 
 
 356. Letter press copies of private letters are 
 in no sense original papers, and are admissible 
 in evidence only after notice to produce the orig- 
 inals, or proof of their loss. Com. App., 1870 
 Foot V. Bentley, 44 N. Y. (5 Hand,) 166. 
 
 856. A copy of a letter written by one party 
 to the other, no notice to produce the original 
 having been given, though sworn to by the 
 writer as correct, is not competent e.vidence in 
 his behalf. Ct. App., 1§74, Foster v. Newbrough, 
 58N. Y. (13Siok.)481. 
 
 357. In an action of ejectment for part of a 
 city lot, where one witness testifies to a survey 
 made by him according to a map on file and 
 recorded in the register's office, showing an en- 
 croachment by defendant, and it appears that 
 such map is not the original, but purports to be 
 a copy of the original map made by the pro- 
 prietor, evidence by such witness that he has 
 seen the original map and made extracts from 
 it, which he had compared and found to corres- 
 pond with the recorded map, and that the latter 
 had for many years been the standard for sur- 
 veys by city surveyors, and that he believed the 
 original to be lost, is sufficient to call for a sub- 
 mission of the question as to the correctness of 
 such call to the jury. N. Y. Supr. Ct., 1871, 
 Knapp V. Altmeyer, 33 N. Y. Supr. (1 J. & Sp.) 
 161. 
 
 358. Description of note. In an action 
 for the conversion of certain notes guaranteed 
 by the plaintiff, a question asked of him as a 
 witness for himself, as to what notes he had 
 guaranteed, is competent as calling for a de- 
 scription and not for the contents of the notes ; 
 and he may properly answer from a memoran- 
 dum furnished by the defendants. Com. App., 
 1872, Hotchkiss v. Mosher, 48 N.Y. (8 Sick.) 47& 
 
 359. Proof of loss. In an action upon a 
 lost note, the testimony of the plaintiff that he 
 let the makers take it to show an indorsement 
 thereon to a third person and learn whether it 
 was right, and had not seen it since, and that 
 one of the makers returned in about three hours 
 and said he had lost the note, is admissible 
 against both makers, and is sufficient to sustain 
 a finding by the jury that the note was lost. 
 Sup. Ct., 1863, EUenwood v. Fults, 63 Barb. 321. 
 
 360. Loss of an instrument cannot be proved 
 by one who has no recollection of the paper, and 
 who is not shown to have been connected in 
 any way with its custody, or to have searched 
 for it. N. Y. Supr. Ct., 1870, Roelker v. Great 
 
 Western Ins. Co., 2 Sweeny, 275. 
 
 361. Where a paper is of little value, that cir- 
 cumstance aids the presumption of its loss, and 
 less diligence is demanded in attempting to pro^ 
 duee or find the original, before allowing the 
 introduction of a copy in evidence. Sup. Ct., 
 1874, Baker v. Squier, 1 Hun, 448. 
 
 362. — of inability to produce. In an 
 action to recover the value of goods alleged to 
 have been received by the defendants from one 
 who purchased them from a thief who stole 
 them from the plaintiff, the latter may, for the 
 purpose of accounting for his not producing the 
 thief as a witness, and also to strengthen the 
 evidence of the larceny, show that such thief 
 was arrested, convicted and imprisoned for such 
 theft ; and this fact may be proved bj^ parol tes- 
 timony. Sup. Ct., 1872, Pease v. Smith, 5 Lans. 
 519. 
 
 863. The rule that the execution of an instru- 
 ment under seal must be proved by the subscrib- 
 ing witness, before ' it will be admissible in evi- 
 dence, has not been affected by the change in the 
 law so as to allow parties to be witnesses. N.Y. 
 Supr. Ct., 1870, Hodnett v. Smith, 41 How. 190; 
 S. C, 10 Abb. N. S. 86 ; 2 Sweeny, 401. 
 
 364. Proof of due diligence, such as would 
 govern a prudent man in a sincere search for the 
 witness, is still necessary to let in secondary 
 proof. After the failure to produce the subscrib- 
 ing witness is satisfactorily excused, the genuine- 
 ness of his signature may be proved ; and not 
 until it appears that this cannot be done, will 
 proof of the handwriting of the party who exe- 
 cuted the instrument be admissible. lb. 
 
EVIDENCE. 
 
 301 
 
 865. Failure after notice. A party failing, 
 after notice, to produce books and papers in his 
 possession or under his control, is not entitled to 
 introduce them in evidence afterward for his 
 own benefit. Sup. Ct., 1874, Tyng v. U. S. Sub- 
 Marine and Torpedo Boat Co., 1 Hun, 161. Ee- 
 argument denied, 1 Hun, 309 ; Aff'd by Ct. App. 
 
 366. This rule does not apply to a document 
 which is a public record, accessible to both par- 
 ties, nor to a portion of private records entirely 
 separate and distinct from that specified in the 
 notice. lb. 
 
 867. Ability to attend as witness. For 
 the purpose of showing the inability of a witness 
 whose testimony has been taken de bene esse to 
 attend the trial, it is competent to give evidence 
 of his appearance, and his declarations on that 
 subject, made in answer to questions put to him 
 shortly before the trial. Sup. Ct., 1875, Me- 
 Arthur v. Soule, 6 Hun, 63. 
 
 368. Acceptance. Whereacontraot for ma- 
 terials to be furnished a contractor provides for 
 their acceptance by the city oflScials, it is compe- 
 tent, as against the party furnishing them, to 
 show upon the question of acceptance the acts 
 of-such officials done in his absence. Ct. App., 
 1873, Bogan v. City of Brooklyn, 52 N. Y. (7 
 Sick.) 282. 
 
 869. Acting for other party. In an action 
 by a broker to recover compensation for effect- 
 ing a sale, where both the fact and the extent 
 of plaintiff's employment is put in issue, evi- 
 dence is admissible, on the part of the defendants, 
 to show that the plaintiff was acting in behalf of 
 the other party, even though it relates to occur- 
 rences subsequent to the completion of his con- 
 tract as broker. Sup. Ct., 1874, Miller v. Irish, 
 3 Hun, 352. 
 
 370. Acts of other employes. Upon the 
 question of the proper performance of duty by an 
 employe, evidence of the manner in which other 
 employes in a similar line of employment per- 
 formed their duties is not admissible. N. Y. 
 Supr. Ct., 1874, Sammon v. New York and Bud- 
 son Riv. E. R. Co., 38 N. Y. Supr. (6 J. & Sp.) 
 414. 
 
 871. Admissible for another purpose. It 
 is not error to exclude evidence when it is offer- 
 ed for a purpose for which it is inadmissible, 
 even though it may be adruissible for some other 
 purpose. N. Y. Supr. Ct., 1871, Tochman v. 
 Brovm, 33 N. Y. Supr. (IJ. & Sp.) 409. 
 
 872. Thus, evidence of what was said at the 
 time of making a written contract, the terms of 
 which are clear and unambiguous, may properly 
 be rejected if offered to explain such contract, 
 though it might be admissible to apply it. lb. 
 
 373. Agency. A resolution of the board of 
 directors of an incorporated company, confirm- 
 ing and ratifying a purchase madfe by an indi- 
 vidual in its name, is competent evidence of the 
 authority of such person as its agent. Ct. App., 
 1872, Dent v. North American Steamship Co., 49 
 N. Y. (4 Sick.) 390. 
 
 374. The declarations of an agent are not ad- 
 missible to prove his agency ; but they are com- 
 petent to show that he held himself out as agent, 
 and to establish a basis for proof of a ratifica- 
 tion of his acts. Sup. Ct., 1878, Howard v. 
 N(rrton, 65 Barb. 161, 
 
 375. A receipt given by an agent for property 
 purchased for his principal, is not admissible 
 against the latter, without proof of agency or of 
 a ratification ; especially where it was not given 
 at the time of the purchase, so as to be part of 
 the res gestce. lb. 
 
 376. An agent's authority cannot be proved 
 
 by his own declaration, or acts alone, but it may 
 be established by such declarations and acts 
 aided by the admissions of the principal. Sup. 
 Ct., 1875, McArthur v. Soule, 5 Hun, 63. 
 
 877. In an action for the price of goods sold, 
 where the principal question is whether.the per- 
 son who actually made the purchase acted for 
 himself or as agent for the defendant, evidence 
 that such person did not mention the debt in his 
 schedule of liabilities in bankruptcy is not ad- 
 missible. Cora. App., 1874, Turner v. Lee, 57 
 N, Y. (12 Sick.) 667. 
 
 878. Where, in an action to recover the price 
 of a water-wheel purchased by a husband and 
 put into a mill owned by his wife and upon her 
 premises, the only proof that the wife knew of 
 the purchase, or adopted it as her own, was that 
 she signed a note for the purchase-money with 
 her husband iu the usual place of principal, and 
 neither of them would swear that she did not 
 know for what the note was given, but the wife 
 swore that she signed as surety, — Held, sufficient 
 to sustain a finding that the husband acted in 
 making the purchase as agent of his wife. Ct. 
 App., 1874, Clark v. Halstead, 56 N, Y. (11 
 Sick.) 662. 
 
 379. Alteration of note. In an action upon 
 a note alleged to have been altered by the addi- 
 tion of the words " with interest," evidence tend- 
 ing to show whether those words were or were 
 not written at the same time, and with the same 
 pen and ink, is admissible. Sup. Ct., 1875, 
 National State Bank of Troy v. Rising, 4 Hun, 
 793. 
 
 880. Assignment. In an action for money 
 had and received to plaintiff's use, where the 
 complaint does not show that the claim origin- 
 ally belonged to a third party who has assigned 
 it to the plaintiff, the latter cannot be permitted 
 to introduce evidence of that state of facts, as it 
 would tend to show an independent and different 
 cause of action from that stated in the complaint. 
 Sup. Ct., 1874, Decker v. Saltsman, 1 Hun, 421 ; 
 Affd by Ct. App. 
 
 381. Attorney's services. Since the Code, 
 an attorney's charges for services in a suit are 
 not limited by the fee bill, but he must prove 
 them, as he was formerly required when they 
 were not rendered in a suit ; and it is not neces- 
 sary, for that purpose, that he should prove each 
 item of service performed in a suit and its value, 
 but it is enough to prove, in general terms, the 
 proceedings in the cause, the time occupied in 
 the performance of any part thereof by which 
 their value was enhanced, and the value of the 
 whole, or in detail, as he may elect. Sup. Ct., 
 1873, Garfield v. Kirk, 65 Barb. 464. 
 
 382. Proof of the value of the property in- 
 volved in the litigation is competent, in an ac- 
 tion by an attorney against his client for ser- 
 vices in the suit. lb. 
 
 383. In order to meet the objection that a 
 search of title would have been made by the 
 county clerk for much less than the attorney 
 has charged therefor, it is competent for liim to 
 show that, at the time of the search, there was 
 no one in thecoimty clerk's office competent to 
 make it. lb. 
 
 384. An offer to prove what share of the re- 
 covery plaintiff has agreed to give his attorney is 
 immaterial. Such arrangements being lawful, a 
 party is not discredited as a witness by making 
 them ; nor does such an agreement give the 
 attorney an interest in the cause of action such 
 as would make his admissions proper, or make 
 him liable for costs. Ct. App., 1873, Sussdorff 
 V. Schmidt, 55 N. Y. (10 Sick.) 319. 
 
302 
 
 EVIDENCE. 
 
 885. Authority. A party seeking to make a 
 principal liable for the acts of his special agent, 
 employed to accomplish a particular purpose, 
 must prove what the authority of the agent 
 was ; and it is competent for the principal to 
 disprove the evidence adduced, and show what 
 the authority in fact was. Sup. Ct., 1862, Fish 
 V. Davis, 62 Barb. 122. 
 
 386. To bind the principal by acts of ratifica- 
 tion, it must be shown that they were done with 
 full knowledge of all the facts. lb. 
 
 387. Where the proof shows that any of the 
 employes of a merchant were permitted to re- 
 ceipt for packages of goods delivered at the 
 store, evidence of any private instruction not 
 communicated to the other party, to qualify this 
 authority, is not admissible. Sup. Ct., 1874, 
 Gallup V. Lederer, 1 Hun, 282. 
 
 388. In an action upon a joint promissory 
 note, against father and son, defended by 
 the former on the ground of forgery, — Held, 
 that evidence that he had recognized the 
 validity and his liability upon other similar 
 notes purporting to be signed by him, but 
 which he himself had not signed, was proper 
 in connection with evidence that the note in suit 
 was signed by his son and co-defendant, for the 
 purpose of show ing that he had authorized the 
 signature. Com. App., 1873, Hammond v. Va- 
 Han, 64 N. Y. (4 Sick.) 398. 
 
 889. Evidence, however, that the father had 
 assisted his son in business and procured loans 
 for his benefit upon his own indorsement, for 
 which the son had given collateral security, — 
 Held, not competent, because not tending in any 
 way to prove an authority to sign. lb. 
 
 390. An aTvard between the plaintiff and 
 the vendor of the defendant, of which the latter 
 had notice as to the title of the hay for the pur- 
 chase-price of which the suit is brought, is 
 admissible in evidence to establish the plaintiff's 
 right to the proceeds thereof. Sup. Ct, 1874, 
 Bockwell V. Laivrence, 1 Hun, 471. 
 
 391. Bona fides. In an action by a party 
 who discounted a bill before its acceptance, 
 against the acceptor, it is proper, if not actually 
 necessary, for the plaintiff to show that he is a 
 iono fide holder for value ; and, for that purpose, 
 evidence is admissible of previous similar trans- 
 actions between the parties, and that in dis- 
 counting the bill the plaintiff relied chiefly upon 
 its being accepted by the drawee who had paid 
 the previous bills, and had no knowledge that it 
 was not drawn in the usual course of business. 
 N. T. Supr. Ct., 1875, First Nat. Bank of Portland 
 T. Schuyler, 39 N. Y. Supr. (7 J. & Sp.) 440. 
 
 892. Boundaries. To establish a patent line, 
 in ejectmentT' evidence as to its location may 
 properly be received from persons who have been 
 conversant with the patents, and with their re- 
 cognized boundaries for many years, and who 
 knew the line between them by tradition, and 
 of its recognition by owners of lands bounded 
 thereby, and had also traced it on ancient maps 
 purporting to represent it. Sup. Ct., 1874, Jones 
 V. Smith, 8 Hun, 361. 
 
 893. To establish a line by practical location, 
 it must be shown to have been actually created, 
 recognized and acquiesced in by the parties 
 interested, for a long period of time — generally 
 not less than 20 years. lb. 
 
 894. Character. In an action for the price of 
 goods sold through a broker, who fraudulently 
 represented that he was the owner and collected 
 payment, evidence that his character was good 
 for honesty and fair dealing, is inadmissible. 
 Sup. Ct., 1874, Bassett v. Lederer, 1 Hun, 274. 
 
 895. Chattel mortgages of a canal-boat, 
 executed by one of two parties who are sued 
 as joint owners for the value of repairs made 
 thereon, are not admissible in favor of the other 
 defendant who alone appears in the action, to 
 show that such mortgagor Is sole owner, because : 
 1. His admissions are not evidence against the 
 plaintiff; 2. Such mortgages do not tend to show 
 that he is sole owner, as either of two joint 
 owners could mortgage his interest without the 
 consent or concurrence of the other. Sup. Ct, 
 1875, Harris v. Wessels, 5 Hun, 645. 
 
 896. A city ordinance limiting the rate of 
 speed of trains within specified limits, is not ad- 
 missible in evidence upon the question of neg- 
 ligence, in an action against a railroad company 
 to recover damages for causing the death of a 
 person crossing its tfack outside of those limits. 
 Ct. App., 1874, Calligan v. N. T. Cent. ^ Had. 
 Riv. R. R Co., 69 N. Y. (14 Sick.) 651. 
 
 897. Consideration. In an action for a breach 
 of a warranty of a chattel, by an assignee of the 
 cause of action, w^ere the assignment is in writ- 
 ing and expresses a consideration, evidence as 
 to the sum actually paid therefor is immaterial, 
 and may properly be excluded. Sup. Ct, 1872, 
 Chapin v. HoUister, 7 Lans. 456. 
 
 898. In such a case, it is not an abuse of dis- 
 cretion to disallow a cross-examination of the 
 assignor as to such consideration, although he 
 had given te^stimony as to the value of the chat- 
 tel warranted. lb. 
 
 399. In an action on a promissory note by one 
 claiming to be a bona fide holder for value, where 
 the defendant alleges and proves that the same 
 was procured from him by fraud on the sale of 
 a patent right, and the plaintiff shows that he 
 paid therefor in horses, the defendant may show 
 that such horses were not worth more than one- 
 half the amount of the note. Sup. Ct, 1872, 
 Huffv. H^ayner, 63 Barb. 215. 
 
 400. Such evidence is admissible, as well as 
 all the other circumstances of the transfer, and 
 the relations anjl dealings of the panties, as tend- 
 ing to show whether or not the plaintiff is a 
 holder in good faith, if not to show to what 
 extent he is entitled to be protected. lb. 
 
 401. In an action by the payee of a promis- 
 sory note against one who indorsed it prior to 
 its delivery to himself, the plaintiff being bound 
 to show that the defendant indorsed for the 
 accommodation of the maker and to give him 
 credit with the payee, or to become surety for 
 the maker, may, for that purpose, testify as to 
 the circumstances under which he received the 
 note, and as to declarations made by-the defend- 
 ant tending to show that he had some interest 
 in the consideration of the note. N. Y. Supr. 
 Ct., 1874, Smith v. Smith, 87 N. Y. Supr. (5 J. & 
 Sp.)203. 
 
 402. In an action by the assignee of an im- 
 porter against a steamship company for the loss 
 of a cask- of wine, the consideration of the 
 assignment is immaterial, and a question to the 
 assignee in relation thereto should be overruled. 
 Sup. Ct, 1872, Arend v. Liverpool, N. T. and 
 Phila. Steamship Co., 6 Lans. 457 ; S. C, 64 Barb. 
 118. 
 
 408. Custom house regulations as to the 
 giving of free permits, are also immaterial in 
 such a case, and evidence thereof is inadmis- 
 sible, lb. 
 
 404. Contract. A party must be presumed 
 to know the nature of a contract which he signs ; 
 and the production of a written or printed con- 
 tract, containing a clause referring to conditions 
 on the back thereof as forming a part of the 
 
EVIDENCE. 
 
 303 
 
 contract, with proof of his signature, is suffi- 
 cient, in the absence of other evidence, to estab- 
 hsh his assent to those conditions. N. Y. Supr. 
 Ct., 1875, Van Nostrand v. N. Y. Guaranty ^ 
 Indemnity Co., 39 N. Y.'Supr. (7 J. & Sp.) 73. 
 
 406. Conversation. In an action by an 
 assignee of the cause of action on a warranty, 
 the cross-examination of the assignor as to a 
 conversation between himself and the warrantor 
 directly after the completion of the sale with 
 warranty, may properly he disallowed, unless 
 the materiality of such conversation is shown., 
 Sup. Ct., 1872, Ghapin v. Hottister, 7 Lans. 456. 
 
 406. Evidence of a conversation between the 
 assignor and assignee, prior to the sale, as to the 
 actual value of the chattel, is immaterial and 
 improper, either for the purpose of disproving 
 the warranty or of showing that it was not re- 
 lied on. lb. 
 
 407. Credit, to whom given. In an action 
 involving the question whether the credit was 
 given to the defendant or to his son, evidence 
 that the son had no property is not competent 
 on the part of the plaintiff for the purpose of 
 showing the improbability of credit being given 
 to him ; as no fair inference could be drawn 
 therefrom that the defendant received the credit 
 because he had the most property. Ct. App., 
 1874, Ch-een v. Disbrow, 56 N. Y. (11 Sick.) 334 ; 
 Rev'g S. C, 7 Lans. 381. 
 
 408. Neither is evidence that the defendant 
 had paid debts of other persons against his son, 
 competent as evidence of a promise to pay 
 plaintiff's claim. lb. 
 
 409. Damages. In a case where the dam- 
 ages of a party may be measured by several dif- 
 ferent rules, he may give evidence tending to 
 establish the amount according to either or all 
 such rules, leaving the jury, under proper in- 
 structions, to select that which is most just and 
 reasonable. Sup. Ct., 1873, Cook v. Smile, 45 
 How. 840; Qualified, S. C, 56 N. Y. (11 Sick.) 
 420. 
 
 410. In an action by a female, for an assault 
 and battery and attempted rape, where the facts 
 proved are such as to call for vindictive dam- 
 ages, although her suffering in mind by reason 
 of the shock to her moral sensibilities is proper 
 to be considered by the jury, she cannot be per- 
 mitted to show, in proof of such suffering, her 
 own acts subsequent to, and remote from, the 
 time of the alleged injury. Sup. Ct., 1871, Ford 
 V. Jones, 62 Barb. 484. 
 
 411. The plaintiff's character for chastity is 
 directly in issue upon the question of damages, 
 in such a c^se ; and it may be attacked, not merely 
 by proof ot general reputation, but by proof of 
 specific acts of lewdness and immorality. lb. 
 
 412. A recovery against the sheriff in an action 
 for an escape, is evidence, in an action by him 
 against the bail of the escaped debtor, both of 
 the fact of the escape and of the damages sus- 
 tained by him, even though the judgment 
 has not been collected. Sup. Ct., 1873, Toll v. 
 Alvord, 64 Barb. 568. 
 
 413. In an action upon a guaranty that a 
 promissory note is not outlawed, evidence that 
 the maker of the note is insolvent and the note 
 uncollectible, is proper on the question of dam- 
 ages. Sup. Ct^ 1874, Clark v. Hampton, 1 Hun, 
 612. 
 
 414. In an action to recover damages for the 
 loss of a vessel through-a collision, evidence that 
 it could not be raised, or that it would cost more 
 than its value to raise it, is competent upon the 
 question of damages. Ct. App., 1874, Bianchard 
 v. N. J. Steamboat Co., 69 N. Y. (14 Sick.) 292. 
 
 415. But it is not competent to prove the value 
 of the vessel by showing the value of other ves- 
 sels with which to compare it. lb. 
 
 416. In an action to recover damages for per- 
 sonal injuries caused by the negligence of tlae 
 defendant, any question fairly calling for facts 
 bearing upon the nature and permanency of the 
 injury to the plaintiff's health, is competent on 
 the question of damages. Sup. Ct., 1865, Beck- 
 with V. N. Y. Cent. R. R. Co., 64 Barb. 299. 
 
 417. The plaintiff may, therefore, properly be 
 asked, " did the state of your health cause you 
 to give up your business ? " Such question calls 
 for a fact, not an opinion. lb. 
 
 418. In an action for personal injuries, evi- 
 dence of the amount of wages earned by the 
 plaintiff before the injury, is competent on the 
 question of damages. Ct. App., 1873, Kessel v. 
 Butler, 53 N. Y. (8 Sick.) 612. 
 
 419. Proof of the past profits of a business, 
 in which the profits are uncertain and subject 
 to many contingencies, is not competent, in an 
 action for personal injuries, upon tlie question 
 of damages. Ct. App., 1874, Masterton v. Village 
 of Mount Vernon, 58 N. Y. (13 Sick.) 393. 
 
 420. In an action for wrongf ally taldng and 
 detaining a cow, where it is claimed that the 
 cow was dried up through tiie fault of the de- 
 fendant while in liis possession, it is competent, 
 upon the question of damages, to ask a farmer 
 acquainted with the cow, " how much less is she - 
 worth, being dried up, than she would be if giv- 
 ing milkV Sup. Ct., 1875, Smith v. Wilcox, i 
 Hun, 411. 
 
 421. Defense, not pleaded. Evidence of 
 facts transpiring, or of a defense, in whole or in 
 part occurring, after the commencement of an 
 action and joining of issue therein, such as pay- 
 ment to the sheriff on an execution against the 
 plaintiff, in accordance with sec. 293 of the Code, 
 are not admissible in evidence unless set up in 
 an amended or supplemental answer. Sup. Ct., 
 1873, Hall V. Olney, 65 Barb. 27. 
 
 422. In an action on a promissory note, evi- 
 dence that it was made for accommodation of a 
 party by whom it was delivered to the plaintiff 
 for a particular purpose, and has been diverted 
 therefrom, is not competent, if tliose defenses 
 are not set up in the answer. Sup. Ct., 1874, 
 Malcolm V. Fagan, 1 Hun, 617. 
 
 423. In an action for tlie price of goods sold, 
 where the answer denies indebtedness for the 
 amount claimed, and avers that some of the 
 goods were sold to other parties without tlie 
 knowledge or consent of defendant, but does not 
 allege a warranty, evidence that some of them 
 were unsound and worthless is not admissible. 
 Com. App., 1873, Fetherly v. Burke, 64 N. Y. (9 
 Sick.) 646. 
 
 424. Delivery. In an action upon a contract 
 for the sale of a patent-right by the vendor, it 
 is not material, upon the question of delivery 
 of the contract, whether the plaintiff took pos- 
 session of the patent and the papers relating to 
 it before or aftfer the defendant repudiated the 
 agreement. Ct. App., 1872, Collins v. Hall, 50 
 N. Y. (5 Sick.) 687. 
 
 425. Disqualification of judge. In pro- 
 ceedings supplementary to execution, a witness 
 called by the plaintiff for another purpose, may 
 be used by the defendant to show that the 
 judgment is owned by one who is the partner of 
 the special county judge before whom the pro- 
 ceedings are had. Sup. Ct., 1876, Woodward v. 
 Bugsby, 3 Hun, 625. 
 
 426. To disprove admissions. Where the 
 complaint alleges that the plaintiffs performed 
 
304 
 
 EVIDENCE. 
 
 Bervices and furnished materials, at the request 
 and for defendant, of the value of $3,428.49, 
 which defendant agreed to pay, and the answer 
 served after a bill of particulars of plaintiffs' 
 claim had been furnished, admitted that plain- 
 tiffs performed work and furnished material for 
 him as alleged in the complaint, but denied that 
 they were of the value claimed, — Held, that 
 evidence was not admissible on the part of de- 
 fendant to show that the work and material 
 alleged in the complaint had not bees performed 
 or furnished him, that being admitted by the 
 answer, and only the value put in issue. Eakl, C, 
 dissents. Com. App., \ili,Van Dylcey. Maguire, 
 67N.Y. (12 Sick.) 429. 
 
 427. Effect of weather. In an action 
 against a steamship company to recover for the 
 loss of wine shipped on one of its vessels in good 
 order, but the cask found empty on its arrival 
 at its port of destination, the company having 
 stipulated against liability for loss by leakage, 
 damage from stowage, straining, or other perils 
 of the seas, and alleging as a defense that the 
 wine leaked out, the testimony of a stevedore as 
 to his experience of the effect of heavy weather 
 on fluids in casks during a sea voyage, and also 
 as to the condition of other casks containing 
 fluids, that came out of the vessel at the same 
 time as the one in controversy, may properly be 
 excluded as immaterial, having no tendency to 
 show that the wine had leaked out. Sup. Ct., 
 1872, Arend v. Liverpool, N. Y. Sj- Phila. Steam- 
 ship Co., 6 Lans. 457 ; S. C, 64 Barb. 118. 
 
 428. Testimony as to whether wine did not 
 often deteriorate in coming to this country, may 
 properly be excluded for the same reason. lb. 
 
 429. Employment by defendant. In an 
 action to recover pay for services as a counsel- 
 lor at law, where the defendant denies that he 
 employed the plaintiff, but alleges, that he made 
 a special agreement with another attorney to 
 conduct the entire proceedings in the suit for a 
 specifled sum, evidence of such agreement is 
 admissible on the part of the defendant. Sup. 
 Ct., 1875, Pomeroy v. Pierce, 6 Hun, 119. 
 
 430. Evidence is admissible, on the part of the 
 plaintiff, to show that the defendant consulted 
 with him, even without proof of what was said 
 between them. lb. 
 
 431. Evidence that a person on a railroad train 
 had on a brakeman's cap and jacket, and moved 
 about on the train in the presence of other agents 
 and servants of the railroad company, assuming 
 to use some authority, is competent and sufficient 
 to go to the jury upon the question of being in 
 the employment of the company as a brakeman. 
 N. Y. Supr. Ct., 1873, Hughes v. N. Y. ^ New 
 Haven R.R. Co., 36 N. Y. Supr. (4 J. & Sp.) 222. 
 
 432. Explanation. Where a paper executed 
 by the defendant, but in possession of the plain- 
 tiff, is produced and examined by defendant's 
 attorney, he is not entitled to show it to a wit- 
 ness for further identification and explanation 
 of the circumstances under which it was signed, 
 if he does not put it in evidence. Sup. Ct., 1875, 
 Hotchkiss V. Girmania F. Ins. Co., 5 Hun, 90. 
 
 433. When the testimony of a party is con- 
 tradicted by a written instrument executed by 
 himself, and also corroborated by statements in 
 an affidavit sworn to by him, the testimony of 
 his attorney should not be received, by way of 
 rebuttal or explanation, to show how such in- 
 strument came to be made ; the negotiations and 
 conversations leading to its execution ; his own 
 motives in entering into it on behalf of his client ; 
 and whether he expressed his views to the other 
 party to the instrument, or informed his client 
 
 of it. N. Y. Supr. Ct., 1873, Johnson v. Oppen- 
 heim, 35 N. Y. Supr. (3 J. & Sp.) 440. 
 
 434. Extent of injury. In an action for 
 personal injuries, a question as to how far the 
 plaintiff helped herself, and at what point she 
 required assistance, to do what was necessary to 
 be done, asked of an attendant, calls for facts and 
 not mere opinion, and is competent. Ct. App., 
 1871, Sloan v. N. Y. Central R. R. Co., 45 N. Y. 
 (6 Hand,) 125. 
 
 435. Financial condition. In an action by 
 the receiver of an insurance company upon secu- 
 rity notes, given under a provision of the char- 
 ter making the notes liable for the debts of the 
 company after the cash capital and other re- 
 sources of the company shall have been first ex- 
 hausted, it is clearly competent to show the 
 extent of liabilities and the amount of assets at 
 the time the receiver was appointed, as tending 
 to show the exhaustion of the resources of the 
 company ; and this may be shown by the testi- 
 mony of the bookkeeper and cashier of the 
 company, and by proof of the adjustment of 
 liabilities by the receiver. Sup. Ct., 1874, 
 Osgood r. Toole, 1 Hun, 167 ; Aff'd, S. C, 60 N. Y. 
 (15 Sick.) 475. 
 
 436. Former actions. In an action of 
 slander, where the plaintiff is examined as a 
 witness on his own behalf, he may, for the pur- 
 pose of affecting his credit, be asked on cross- 
 examination whether he had previously had 
 litigation with the defendant, but he cannot prop- 
 erly be asked how many suits and for what 
 causes of action, nor whether one of such suits 
 was not for . slander and his recovery $10 ; the 
 evidence sought being immaterial and imper- 
 tinent to the issue. Ct. App., 1869, Boyntm v. 
 Boynton, 43 How. 380. 
 
 437. Fraud. For the purpose of showing" 
 fraud alleged to have been committed in the sale 
 of lands by falsely representing them to be oil- 
 producing lands, evidence is admissible to show 
 that petroleum oil was poured upon the lands by 
 one of the owners and an agent, both before and 
 after the sale. Com. App., 1873, Chester v. Dick- 
 inson, 45 How. 826 ; S. C, 54 N. Y. (9 Sick.) 1. 
 
 438. In an action to recover damages sustained 
 by reason of false and fraudulent representations 
 which are particularly set forth in the complaint, 
 it is not competent for the plaintiff to introduce 
 evidence of other false and fraudulent represen- 
 tations not alleged therein. Sup. Ct., 1874, 
 Thurman v. Mosher, 1 Hun, 344. 
 
 439. Where a fraudulent intent is the gravamen 
 of the action, any transaction or statement of a 
 fraudulent character, bearing on the^otive of 
 the person charged is competent. lb. 
 
 440. The falsity of representations as to the 
 existence of a partnership between the defendant 
 and a third person, since deceased, alleged to 
 have been made by such defendant to obtain 
 credit, cannot be proved by mere negative evi- 
 dence, such as the books of the deceased not 
 showing such partnership, or parol proof that 
 other books or papers of his do not show it, or 
 that a person doing the same kind of business in 
 the same block had more or less business with 
 the deceased, but never did any business with 
 him and defendant as partners. If any of such 
 proof is competent, it has but a very slight 
 tendency to establish the falsity of' the represen- 
 tations. Sup. Ct., 1872, Sullivan v. Warren, 48 
 How. 188. 
 
 441. In cases of fraudulent transfer to avoid 
 process, the papers are usually correct, and there- 
 fore, the law allows testimony that is not clearly 
 irrelevant to impeach their validity because 
 
EVIDENCE. 
 
 305 
 
 often the defrauded party can only establish his 
 claim by proof of various circumstances, per- 
 haps immaterial in themselves individually, but, 
 when considered as a whole, proving the mala 
 fides of the transaction. N. Y. Supr. Ct., 1872, 
 Chapman v. O'Brien, 84 N. Y. Supr. (2 J. & Sp.) 
 624. 
 
 442. Where one person allows another to use 
 his name and credit for the purpose of carrying 
 on a business for the sole benefit of the latter, 
 that fact furnishes no evidehce of fraud as 
 against the creditors of the latter, and should 
 not be submitted to the jury as showing such 
 fraud. Com. App., 1871, Smith v. Van Olinda, 
 48 N. Y. (3 Sick.) 169. 
 
 443. In an action for rent, brought against 
 the surety of the tenant, wherein the latter sets 
 up as a defense the fraud of the plaintiff in in- 
 ducing him to sign as surety a lease running for 
 two years instead of one year as ..represented to 
 him, and testifies that he agreed to become 
 surety only for one year, it is improper to ask 
 him whether he would have signed as surety if 
 he had known that the lease was for two years, 
 that being entirely immaterial. Sup. Ct., 1872, 
 Learned v. Ryder, 5 Lans. 539 ; S.C, 61 Barb. 652. 
 
 444. Fraud on acceptors. As against the 
 holder of a draft, who took it before acceptance 
 on an antecedent debt* and without parting with 
 any value upon the faith of the draft or its ac- 
 ceptance, evidence is admissible on the part of 
 the acceptors to show that it was not only with- 
 out consideration in fact, but that their accept- 
 ance was procured by fraud of the drawers. 
 N. Y. Snpr. Ct., 1872, Philbrick v. Dallett, 43 
 How. 419 ; S. C, 34 N. Y. Supr. (2 J. & Sp.) 370. 
 
 445. GrenuinenesB. In the absence of direct 
 evidence of the genuineness of a certificate, 
 evidence that a large number of such certificates 
 have been received in the trade in which it was 
 issued as genuine, is sufficient to go to the jury 
 upon the question of its being genuine. Sup. 
 Ct., 1874, Baker v. Squier, 1 Hun, 448. 
 
 446. General denial. Upon principle and 
 authority, the defendant, under a general or 
 specific denial of any part of the complaint 
 which the plaintiff is bound to prove in order 
 to maintain his action, is at all times at liberty 
 to prove anything tending to show that plain- 
 tiff's allegation is untrue. N. Y. Supr. Ct., 1873, 
 Schaus V. Manhattan Gas-light Co., 45 How. 481 ; 
 S. C, 14 Abb, N. S. 371 ; 36 N. Y. Supr. (4 J. & 
 Sp.) 262. 
 
 447. In an action for injuries caused by de- 
 fendant's negligence, testimony is admissible on 
 the part of the defendant, under a general denial 
 in his answer, to establish contributory negli- 
 gence on the part of the plaintiff, even though 
 such defense is based upon the latter's failure 
 to perform an act which he had voluntarily as- 
 sumed and agreed to perform, and by which 
 the injury would have been prevented. N. Y. C. 
 P., 1872, Brown v. Elliott, 46 How. 182 ; S. C, 4 
 Daly, 182. 
 
 448. In an action for goods sold and delivered, 
 the defendant, under a general denial in his 
 answer, may show that he dealt with the plain- 
 tiff as agent for another, whose name was dis- 
 closed, and to whom the credit was given. Com. 
 App., 1874, Merritt r. Briggs, 57 N. Y. (12 Sick.) 
 651. 
 
 449. Under an answer of general denial to a 
 complaint in an action for the price of goods 
 soldy the defendant cannot introduce evidence of 
 payment to the broker through whom the sale 
 was made. Sup. Ct., 1874, Bassett v. Lederer, 1 
 Hun, 274. 
 
 20 
 
 460. Gift. The title to a chose in action by 
 gift from a person since deceased cannot be es- 
 tablished by mere proof of declarations of the 
 deceased imparting a gift, but an actual or con- 
 structive delivery thereof must be shown; 
 neither can such delivery be inferred from the 
 testimony of the donee, who is not competent to 
 testify directly to the fact because it was a per- 
 sonal transaction with the deceased. Sup. Ct., 
 1875, Johnson v. Spies, 5 Hun, 468. 
 
 461. Good faith. In an action to set aside 
 an assignment of property as fraudulent, the 
 assignor may properly be asked, for the purpose 
 of showing that he did iiot obtain such property 
 with fraudulent intent, whether, at the time of 
 purchasing the same, he considered himself re- 
 sponsible, and was of good credit, or not. Ct. 
 App., 1872, Bullis v. Montgomery, 50 N. Y. (6 
 Sick.) 352. 
 
 452. In an action to set aside a conveyance 
 made by a husband to his wife, just before the 
 recovery of a judgment against him, and a sub- 
 sequent conveyance by her to a third party, the 
 latter may properly be required to testify as to 
 whether he held his deed by way of mortgage, 
 or as an absolute conveyance. Sup. Ct., 1874, 
 Raynor v. Page, 2 Hun, 652. - 
 
 453. All evidence tending to show whether 
 the wife in fact paid anything to her husband at 
 the time of the purchase, is also admissible. lb. 
 
 454. Hazard. In an action on a policy of in- 
 surance, which by its terms would permit the 
 use of the premises for " cabinetware " butpro- 
 hibited any more hazardous occupancy ; — Held, 
 that evidence that "chair finishing" increased 
 the risk, and was an occupancy or use more 
 hazardous than cabinet-ware, was competent and 
 admissible. Com. App., 1873, Appleby v. Astor 
 Fire Ins. Co., 54 N. Y. (9 Sick.) 263. 
 
 455. High-way. Where the defense of high- 
 way is set up to an action of trespass quare clau- 
 sum, if the plaintiff proves an order discontinuing 
 that portion of the highway, the defendant may 
 show that the proceedings of the commissioner 
 in discontinuing it were reversed on certiorari 
 after the commission of the trespass, without 
 pleading the judgment of reversal. Such judg- 
 ment establishes that those proceedings were 
 illegal from the beginning. Ct. App., 1876, Briggs 
 V. Bowen, 60 N. Y. (15 Sick.) 454, 646. 
 
 466. Hypothetical question. In an action 
 against a bank for the conversion of certain 
 notes alleged to have been left for collection, a 
 question, asked of one of the bankers, whether, 
 if the notes had been left for collection, they 
 would have been placed to collection account in 
 a book kept for that purpose, is purely hypo- 
 thetical and therefore incompetent. Com. App., 
 1872, Hotchkiss v. Mosher, 48 N. Y. (3 Sick.) 478. 
 
 457. The same reason would exclude the 
 question, whether, if money claimed to have 
 been paid on such notes had been so paid, they 
 would have given a certificate of deposit there- 
 for, lb. 
 
 458. Impeaching. Where a party has testi- 
 fied in his own behalf, evidence is competent to 
 impeach his general character for truth and 
 veracity. Ct. App., 1874, Foster v. Newbrough, 
 68 N. Y. (13 Sick.) 481. 
 
 459. To entitle a party to lay a foundation for 
 the impeachment of a witness by showing state- 
 ments made by him out of court contradictory 
 of his testimony, it is not necessary to put to him 
 the precise question intended to be put to the 
 impeaching witness. Sup. Ct., 1878, Hotchkiss v. 
 Germania F. Ins. Co., 6 Hun, 90. 
 
 460. Statements made by a witness soon after 
 
306 
 
 EVIDENCE. 
 
 the transaction to which they refer, and when 
 he was under the influence of no motive to state 
 it untruthfully, are competent to corroborate his 
 •testimony, when an attempt is made to show 
 that he has given a different relation, or testified 
 under a motive calculated to induce him to fal- 
 sify, lb, 
 
 461. Evidence is adriiissible to show that a 
 witness has made statements out of court incon- 
 sistent and irreconcilable with the testimony 
 given by hira, and to contradict him if he de- 
 nies that he has made any such statement. It 
 is not material whether such inconsistent state- 
 ment was of a fact or of an opinion. Sup. Ct., 
 1873, ScMl V. Piumb, 46 How. 11 ; AfE'd, 55 N. Y. 
 (10 Sick.) 592. 
 
 462. Tiius, where, in an action upon contract, 
 a witness for the defendant testified to admis- 
 sions of the plaintiff to the effect that no such 
 contract was made, and being, asked if he had 
 not said the plaintiff should have $1,000 out of 
 defendant's estate, denied it, — Held, that it was 
 competent for the plaintiff to contradict such 
 denial, as the statement was equivalent to a dec- 
 laration that there was a contract as claimed. 
 Ib.^ 
 
 463. A declaration of a witness made on a 
 former occasion, not inconsistent with or tend- 
 ing to contradict any material statement in his 
 testimony, is not competent evidence for the 
 purpose of impeachment. Ct. App., 1873, Wyc- 
 koff V. Queens County Ferry Co., 52 N. Y. (7 
 Sick.) 32. 
 
 464. In an action upon a promissory note 
 against an indorser, who sets up the defense that 
 the indorsement is a forgery, evidence is not ad- 
 missible on the part of the defendant for the 
 purpose of impairing the credit of a witness for 
 plaintiff, who has testified to his opinion that the 
 indorsement is genuine, to show that he had 
 been instrumental in procuring the indictment 
 of a third party for the forgery of such indorse- 
 ment. Sup. Ct., 1874, Marks v. King, 1 Hun, 
 435. 
 
 465. In an action on an insurance policy 
 where a witness has testified to facts tending to 
 show that insured set fire to his own property, 
 evidence is admissible to show that, some seven 
 years before the trial, such witness had said that 
 if he ever got a chance he would give W (the 
 person accused of setting the fire) hell. The 
 law fixes no time beyond which ill-feeling on.the 
 part of a witness cannot be shown in order to 
 affect his credibility. Sup. Ct., 1875, Hotchkiss 
 v. Germania F. Ins, Co., 5 Hun, 90. 
 
 466. Tlie admissibility of the testimony of a 
 witness as to the credibility of another witness is 
 not affected by the distance he lived from the 
 latter, the degree of his acquaintance with him 
 and with the community in which he lived, but 
 they are elements affecting the value of his tes- 
 timony. Sup. Ct., 1875, English v. Delaware &• 
 Hud. Canal Co., 4 Hun, 683. 
 
 467. Impeached witness. The testimony 
 of an impeached witness need not necessarily be 
 wholly disregarded, but the jury may give it 
 the weight to which, under all the circumstances 
 of the case, it seems to be entitled. Where 
 it is corroborated or supported by other evidence 
 in the case, it should be considered. Com. App. 
 1874, White v. McLean, 47 How. 193 ; S. C. 57 
 N, Y. (12 Sick.) 670. 
 
 468. Improbability of mistake. In the ex- 
 amination of witnesses, parties have a right to 
 show whatever may fortify their statements by 
 indicating the improbability of mistake in mak- 
 ing them, as that the witness's attention had been 
 
 directed to the facts as to which he testified, 
 near the iime when they occurred, and the like. 
 Sup. Ct, 1874, People ex rel. Stemmler v. Mc- 
 Guire, 2 Hun, 269. 
 
 469. Incendiary fire. Evidence to show an 
 attempt to fire another building in the same vil- 
 lage and on the same night that defendant's inn 
 was burned, and that defendant's property was 
 not insured, is not admissible to sustain the de- 
 fense, in an action for the loss of plaintiffs 
 goods in such inn by defendant's negligence, 
 that the fire was the work of an incendiary. 
 Sup. Ct., 1874, Faucett v. Nichols, 2 Hun, 521. 
 
 470. Intent. When an act has been done 
 which might be referred to either one of two al- 
 ternatives of a contract, the intent with which it 
 was done is relevant, and the party by or for 
 whom it was done may testify as to his intent, 
 in an action involving that question. N. Y. Supr. 
 Ct., 1874, Sturm y. Williams, 38 N. Y. Supr. (6 J. 
 & Sp.) 325. S. P., Funke v. Orient Mut. Ins. Co., 
 id. 349. - 
 
 471. In an action to charge a county with the 
 support of a pauper, alleged to have been im- 
 properly removed with the intent that he should 
 become chargeable upon another county, the 
 superintendent of the poor of the defendant 
 county may properly be asked if he sent such 
 pauper away in good failh. Com. App., 187,0, 
 Cortland County v. Herkimer County, 44 N. Y. (5 
 Hand,) 22. 
 
 472. In an action on a policy of insurance is- 
 sued to one who for some time previous had 
 been a solicitor for the company, and who, sev- 
 eral years prior to. his application, had been an 
 inmate for a few months of an insane asylum 
 but had been discharged fully cured, evidence 
 of a conversation between him and the president 
 of the company while he was acting as sojicitor, 
 in which he was cautioned against insuring in- 
 sane persons, is not admissible to charge him 
 with a fraudulent intent in omitting to state his 
 previous insanity in his application. Ct. App., 
 1871, Mallory y. Travellers' Ins. Co., 47 N. Y. (2 
 Sick.) 52. 
 
 473. In an action for the purchase-price of 
 goods sold, defended- on the ground of fraudu- 
 lent representations, it is not competent to ask 
 the plaintiff as a witness for himself whether or 
 not he intended to give anything more than his 
 opinion as to their condition. Com. App., 1872, 
 Waugh V. Fielding, 48 N. Y. (3 Sick.) 681. 
 
 474. In an action for slander, evidence is ad- 
 missible, to show the malicious intention of the 
 slanderer, of a repetition of the same slanderous 
 words on other occasions, though so long pre- 
 viously that an action thereon would be barred 
 by the statute of limitations. Com. App., 1870, 
 Titus y. Sumner, 44 N. Y. (5 Hand,) 266. 
 
 475. It is not competent for a party who has 
 purchased property and taken the title in the 
 name of another, to show what was his purpose 
 or intention in so doing. Such evidence-is never 
 admissible to affect the rights of third persons, 
 unless where the party's intention becomes a 
 legitimate subject of inquiry. Sup. Ct., 1873, 
 Shrader y. Honker, 65 Barh. 60S. 
 
 476. Questions asked of a party, not calling 
 for facts, but for his undisclosed object or inten- 
 tion, such as what he would have done with the 
 proceeds of a certain sale if effected, are imma- 
 terial and should be excluded. Com. App., 1871, 
 Cowdery y. Coit, 44 N. Y. (5 Hand,) 382. 
 
 477. A party seeking to avoid liability on a 
 contract, on the ground that his signature was 
 conditional upon its execution by a third party 
 who never signed, cannot be asked whether he 
 
EVIDENCE. 
 
 307 
 
 intended making an individual contract. Ct 
 App., 1870, DiUm v. Anderson, 43 N. Y. (4 
 Hand,) 231. 
 
 478. Issue accepted. When the plaintiff 
 accepts an issue of fact formed by the answer, 
 by bringing on tlie trial without demurring, or 
 moving to strike out tlie answer as sham or 
 frivolous, evidence tending to establish a legal 
 or equitable defense cannot be excluded on ac- 
 count of informalities in the answer, or of any 
 defect which can be cured by amendment ; or 
 when it is within the general scope and object 
 of the answer, and the pleading can be made 
 to conform to the proof. Sup. Ct., 1876, Lathrop 
 V. Godfrey, 3 Hun, 739. 
 
 479. In such a case, where the answer in a 
 foreclosure action, by a party personally liable 
 for the debt, or one whose land is bound by the 
 lien of the mortgage, alleges that the plaintiff 
 has received only a colorable and fraudulent as- 
 signment of the mortgage and holds it for the 
 benefit of the mortgagee, and sets up a claim for 
 damages for false representations made by the 
 mortgagee to induce the defendant to purchase, 
 by way of recoupment, evidence of those facts 
 should- be received. lb. 
 
 480. Issue by ans-wer and reply. A plain- 
 tiff may properly be permitted to introduce testi- 
 mony on matters not embraced in his complaint, 
 if they are distinctly presented in the answer as 
 a defense, and controverted by the reply. Sup* 
 Ct., 1871, Miller v. White, 10 Abb. N. S. 385 ; S. 
 C, 59 Barb. 434. 
 
 481. Kind and quantity. In an action for 
 the conversion of casks of wine, proof that the 
 plaintiff tasted of it, purchased and paid for it 
 as wine, and that the casks were gauged by 
 government officials as containing the quantity 
 claimed for, and the duty paid on them as wine, 
 is sufficient jjrima/aci'e ; and it is for the defend- 
 ant to give evidence to raise a doubt, before he 
 can insist upon the question as to kind and 
 quantity being submitted to the jury. Sup. Ct., 
 1872, Jaegar v. Kelly, 44 How. 122. 
 
 482. Encwledge. In an action for fraud, 
 founded upon the concealment by the defendant 
 of the defects of a horse sold by him to the 
 plaintiff, it being necessary for the plaintiff to 
 prove want of knowledge of those defects on 
 his part, it ia competent for the defendant, under 
 a general denial, to show that he disclosed them 
 to the plaintiff, or other facts proving the plain- 
 tiff's knowledge thereof. Sup. Ct., 1862, 
 Hmvell V. Biddlecom, 62 Barb. 131. 
 
 483. Malice. In an action for slander, evi- 
 dence of repetitions of the slanderous words is ad- 
 missible to show the degree of malice, even where 
 such words are not actionable per se. Com. App., 
 1872, Bassell v. Elmore, 48 N. Y. (S Sick.) 561. 
 
 484. Market value. Upon the question of 
 the market value of a horse, which was killed 
 while being transported on defendant's road, if 
 it appears that no such animal has been bought 
 or sold or used at the place where it was killed, 
 it had no market value there, and its market 
 value at the place of destination may be shown 
 for the purpose of fixing its value at the former 
 place, taking into consideration the hazards and 
 risks of transportation and all other facts affect- 
 ing the question. N. Y. Supr. Ct., 1873, Har- 
 ris V. Panama R. E. Co., 36 N. Y. Supr. (4 J. & 
 Sp.) 373 ; Aff'd S. C, 58 N. Y. (13 Sick.) 660. 
 
 485. Marriage may be proved like any other 
 fact, either by positive evidence of the agree- 
 ment or by evidence from which it may be in- 
 ferred. Sup. Ct, Sq. T.. 1874. Wright v. Wright, 
 48 How. 1. 
 
 486. Thus, it may be presumed, on proof that 
 the parties have cohabited as man and wife, 
 have been reputed as such among their friends 
 and acquaintances, and have been recognized 
 as such by each other ; but the cohabitation 
 must have been matrimonial, and if illicit in its 
 commencement some facts must be proved 
 showing a cViange in its character. lb. 
 
 487. Mitigation of damages. Matter in 
 mitigation of damages constituting a partial de- 
 fense, and occurring after tlie act complained of 
 as the cause of action, and out of the presence 
 of the plaintiff, cannot be given in evidence un- 
 less specially pleaded. N. Y. C. P., 1872, Wehle 
 V. Haviland, 42 How. 399 ; S. C.,4 Daly, 550. 
 
 488. Tlius, in an action for a trespass in tak- 
 ing property under an invaUd attachment, a 
 subsequent levy upon tlie same property by a 
 valid attachment in favor of a third party can- 
 not be given in ^vic^^nce, under a general denial, 
 but must be specially pleaded. lb. 
 
 489. In such a case, the defendant cannot show, 
 in mitigation of damages, a subsequent valid 
 process and levy in his own favor. lb. 
 
 490. In an action for assault and battery,J;he 
 defendant should be permitted to show, in miti- 
 gation of damages, a series of provocations by 
 the plaintiff, repeated and continued from day 
 to day, and the use by him, whenever the par- 
 ties met, of the most insulting and opprobrious 
 language towards the defendant, to such an ex- 
 tent as to render him wild, excited, frantic and 
 partially insane ; and also that the plaintiff had 
 committed a grievous injury, affecting the 
 domestic relations of the defendant. Sup. Ct., 
 1872, Dolan v. Pagan, 63 Barb. 73. 
 
 491. Such evidence should not be confined to 
 what took place on the day of the assault or the 
 day before ; but each case should be controlled 
 by its own peculiar circumstances, and the ques- 
 tion should be, not how many hours have elapsed 
 since the provocation was given, but whether, 
 in view of the circumstances of the case, the 
 party has had reasonable time to cool his blood, 
 lb. 
 
 492. In an action for the wrongful conversion 
 and sale of a horse, the defendant is not entitled 
 to prove, in mitigation of damages, that the 
 plaintiff soon after the sale by him retook the 
 horse by force from his vendee, and converted 
 it to his own use. Sup. Ct., 1851, Sprague v. 
 McKinzie, 63 Barb. 60. 
 
 493. If such evidence be admitted, the plain- 
 tiff should be permitted to rebut its effect by 
 showing that such vendee has sued him for the 
 taking, and recovered a judgment against him. 
 lb. 
 
 494. In an action for the conversion of a 
 promissory note, the defendant has a right to 
 show in reduction of damages, any matter which 
 legitimately affects or diminishes the value of 
 such note, as payment in whole or in part, the 
 inability of the maker to pay wholly or partial- 
 ly, a release of the makers from tlieir under- 
 taking, or the invalidity, of the note by reason 
 of material alterations, or otherwise. Ct. App., 
 1874, Booth V, Powers, 56 N. Y. (11 Sick.) 22. 
 
 495. In case of an alteration, however, unless 
 made with fraudulent intent, the value of the 
 note to the liolder is not thereby destroyed, as 
 upon its production depends his rights to resort 
 to the original indebtedness he should, therefore, 
 be permitted to rebut the inference of such 
 intent, following the proof of alteration, or to 
 show a justification or excuse for the act. So, 
 it seems, he might show a readiness on the part 
 of the maker to waive, or in other words to 
 
308 
 
 EVIDENCE. 
 
 ratify the alteration, and to admit the note to be 
 a valid obligation against him. lb. 
 
 496. Proof of the alteration of other like notes 
 by tlie same payees, in the same particular, is 
 not competent upon the question of fraudulent 
 intent; nor is proof that action was brought 
 upon such other notes, that the makers success- 
 fully defended such action upon- the ground of 
 the alteration, and that the plaintiff had notice 
 of the suit. lb. 
 
 497. Upon the question of the inability of the 
 maker to pay, proof that he has neglected or 
 refused to pay the note according to its terms, 
 is competent; and this under a general denial, 
 as that puts in issue the amount of damages, 
 lb. 
 
 498. In an action against a railroad company 
 to recover damages for the destruction of prop- 
 erty by fire communicated from its engine, 
 evidence that the plaintiff had an insurance on 
 the property and has received the insurance 
 money, is not admissible in mitigation of dam- 
 ages. Sup. Ct., 1875, Collins v. N. Y. Cent. ^ 
 Hud. Riv. R. R. Co., 8 Hun, 503. 
 
 4^9. In an action for damages caused by a 
 nuisance, evidence that- in consequence of the 
 number of persons employed in the business 
 creating it, the demand for dwellings in the 
 vicinity of the injured premises has increased, 
 thereby increasing the rental value of such 
 property, is improper in reduction of damages. 
 Ct. App., 1873, Francis v. Schoellkopf, 53 N. Y. 
 (8 Sick.) 152. 
 
 500. Motive. Evidence tending to show the 
 reason why a certain item was not included in 
 an account rendered, is inadmissible. The party 
 may impeach the account by showing, as a fact, 
 tliat other items exist, but his motives or reasons 
 for omitting them are immaterial. Earl, C, 
 dissents. Com. App., 1871, Champion v. Joslyn, 
 44 N. Y. (5 Hand,) 653. 
 
 501. "Where the evidence by which it was 
 sought to charge one as a partner, was simply 
 that he owned the buildings and machinery in 
 and by which the firm business was transacted, 
 that he furnished the firm with capital and 
 attended to its financial business, and that he 
 had made declarations to the effect that he was 
 interested in the concern, the defendant denying 
 the partnership, should be permitted to rebut 
 the inference therefrom by showing the motive 
 which actuated him in lending his pecuniary 
 assistance to the firm ; as, that it was solely to 
 aid relatives who were interested as partners. 
 Ct. App., 1874, Tracy v. McMannus, 58 N. Y. (13 
 Sick.) 257. 
 
 602. Negotiations for settlement. Evi- 
 dence of negotiations for a settlement of the claim 
 in suit are admissible, in behalf of the plaintiff, 
 to explain a delay in bringing the suit, which 
 might otherwise prejudice him. Ct. App., 1871, 
 Downs V. New York Central R. R. Co., 47 N. Y. 
 (2 Sick.) 83. 
 
 603. Notice, by third party. In an action 
 by a purchaser of land, to recover for timber 
 cut thereon by the defendant in excess of the 
 quantity which he had a right to cut under a 
 contract existing at the time of the purchase, 
 evidence is admissible to show that the plaintiff, 
 after he had verbally agreed for the purchase of 
 the farm, notified the defendant not to cut in 
 excess of his contract ; as such notice inured to 
 the benefit of the real party in interest. Sup. 
 Ct, 1874, Veeder v. Cooley, 2 Hun, 74 
 
 604. Operation of mind. In an action 
 upon an insurance policy, the insurer testifying 
 as a witness cannot properly be asked, " Would 
 
 you have taken this risk, at the amount and 
 valuation at which it was taken, if you had 
 known that valuation was based in part on 
 Mexican bonis ? " since it calls for a reflection 
 of the witness upon a supposed- state of facts, 
 not for the actual effect upon his mind of what 
 was told him by the assured. N. Y. Supr. Ct., 
 1874, Sturm v. Williams, 38 N. Y. Supr. (6 J. & 
 Sp.) 325. 
 
 505. In an action to recover back money paid 
 to the defendants on a purchase of property, 
 wherein the defendants claim that they acted 
 merely as agents for others, the plaintiff cannot 
 properly be asked when testifying on his own 
 behalf, " To whom did you look for performance 
 of the contract," as that calls for his thoughts 
 and not his acts. Sup. Ct., 1875, Kellar v. 
 Richardson, 5 Hun, 352. 
 
 506. Ovtrnership. In an action against a 
 sheriff to recover for goods taken by him from 
 the plaintiff under process against a third per- 
 son, the plaintiff testifying in his own behalf 
 may properly be asked, " At that time who did 
 these goods belong to ? " and after testifying 
 that he was in possession, whether he was " the 
 owner at that time ; " as such questions call for a 
 fact and not for a conclusion of law, and the 
 issue of the bona fides of the possession and 
 ownership is still left for the jury. N. Y. Supr. 
 Ct., 1873, Caspar v. O'Brien, 47 How. 80; S. C, 
 15 Abb. N. S. 402; 36, N. Y. Supr. (4 J. & Sp.) 
 80. 
 
 507. Payment. In an action for moneys 
 loaned in different years, which the defendant 
 claims have been repaid, evidence that, subse- 
 quent to the loans in question, other loans have 
 been made by the plaintiff to the defen-dant, 
 which have been repaid, will tend to raise a 
 presumption that the older loans have also been 
 paid, and is therefore admissible. Sup. Ct., 
 1874, Ready. Smith, 1 Hun, 263. 
 
 508. Proof of the pecuniary ability of a judg- 
 ment debtor, and that for many years after the 
 recovery of the judgment he had possessed a 
 large property, does not tend to establish pay- 
 ment, and is incompetent for that purpose. Ct 
 App., 1871, Daby v. Ericsson, 45 N. Y. (6 Hand,) 
 786. 
 
 509. Evidence that a person indebted to an- 
 other upon several distinct matters of account, 
 received from a third person a certain sum, for 
 the purpose of paying a particular account and 
 paid it over for that purpose, is not material 
 upon the question of payment of such account, 
 unless accompanied by proof that proper direc- 
 tion was given or the purpose of the payment 
 stated by the one making it, at the time. Ct. 
 App., 1870, Sheppard v. Steele, 43 N. Y. (4 
 Hand,) 52. 
 
 510. Where, in an action on a note, defendant 
 offered evidence tending to show that an account 
 claimed by plaintiff to have been the consider- 
 ation for the note, had been paid by counter- 
 items of account, — Held, that plaintiff might, 
 for the purpose of extinguishing these counter- 
 items, introduce evidence of other claims against 
 defendant, not embraced in his complaint Com. 
 App., 1872, Peck t. Winne, 51 N. Y. (6 Sick.) 
 641. 
 
 511. Physical condition. A witness who 
 is not an expert may, in an action to recover 
 damages for an assault, properly be asked and 
 answer the questions whether the plaintiff had 
 "a rupture before that assault," and whether he 
 had one after it ; those questions calling for 
 facts of physical condition, not resting in opinion. 
 Sup. Ct., 1875, Duntzy v. Van Buren, 6 Hun, 648. 
 
EVIDENCE. 
 
 309 
 
 612. Possession. In an action on a proniis- 
 Bory note given to plaintiff 's intestate, where the 
 defendant interposes the defense tliat tlie note 
 had been assigned to liis wife, and became his 
 by survivorship, lie may properly be allowed to 
 testify that he saw it in his wife's possession ; 
 that not being a personal transaction between 
 the witness and the intestate. Sup. Ct., 1874, 
 Smith V. Sergent, 2 Hun, 106. 
 
 613. Pre-ezisting relations. Evidence of 
 the pre-existing relations of the parties to a 
 transaction is relevant, for the purpose of inter- 
 preting their acts and communications, as the 
 jury shall find them to have taken place ; but it 
 is not competent for the purpose of showing that 
 the same relations existed between them in the 
 transaction in question, nor, where the testimony 
 of the parties upon that point is contradictory, 
 is it admissible as bearing upon the probability 
 that the testimony of one rather than of the 
 other, is correct. Ct. App., 1874, Richards v. 
 Millard, 56 N. Y. (11 Sick.) 574. 
 
 614. Previous acqiiiescence. In an action 
 against a carrier for the conversion of wool, evi- 
 dence is admissible, under a general denial, to 
 show that it was delivered to a commission mer- 
 chant, to whom by direction of the bill of lading 
 advice was to be sent, and that previous ship- 
 ments of wool similarly consigned, and the bills 
 of lading thereof delivered to the plaintiff under 
 similar circumstances, had been delivered by the 
 carrier to the same person without objection 
 from the plaintiff. Ct. App., 1875, Ontario Bank 
 V. New Jersey Stmbt. Co., 59 N. Y. (14 Sick.) 510. 
 
 616. Previous condition. In an action to 
 recover for materials and work furnished and 
 performed in repairing defendant's house, evi- 
 dence on the part of the defendant to show the 
 condition of his house immediately previous to 
 the repairs, is irrelevant and immaterial. Sup. 
 Ct., 1874, Hadden v. Houghtaling, 1 Hun, 318. 
 
 516. Previous conduct. In an action against 
 a railroad company to recover damages for the 
 act of its conductor in Improperly removing the 
 plaintiff from its cars after having paid liis fare, 
 evidence of attempts of plaintiff on previous 
 occasions to avoid payment of fare is inafdmis- 
 sible. Sup. Ct., 1876, English v. Delaware ^ Hud- 
 son Canal Co., 4 Hun, 683. 
 
 517. Profit and loss. In an action by the 
 owner of a farm against one to whom he let it 
 on shares, to recover his part of the proceeds 
 which had not been divided, although the lease 
 provided that the profits and losses of one year 
 should be divided equally between the parties, 
 the question put to the defendant : "During the 
 whole term was there a profit made or loss sus- 
 tained in the general result t state all the facts," 
 — Seld, too general, and the first part clearly 
 objectionable, and therefore the whole was prop- 
 erly ruled out. Sup. Ct., 1874, Gregory v. Brooks, 
 1 Hun, 404. 
 
 518. Evidence to prove the cost of gathering 
 and earing for a part of the crops was also prop- 
 erly rejected, the defendant being bound to 
 perform the work, and no claim for such expense 
 being set up in the answer. lb. 
 
 619. Property of another. In an action 
 against an executrix to recover the value of 
 feed, alleged to have been sold to her for the 
 use of her testator's estate, and fed to horses 
 belonging thereto, no contract on her part to pay 
 for it being shown, evidence is admissible for 
 the defense to show that she did not hold the 
 horses as assets of the estate, but that they be- 
 longed to another person. Sup. Ct., 1875, Mal- 
 % T. McConnell, 4 Hun, 666. 
 
 620. Purchaser, -who -was. In an action 
 to recover for machinery sold and delivered, it 
 is not competent to ask a witness who set it up, 
 for whom he supposed he was doing it ; nor, after 
 proof that the plaintiff had demanded his pay of 
 another than the defendant, can he be asked 
 whether he made the demand of such person " as 
 his debtor." Ct. App., 1874, Nichols v. Kingdom 
 Iron Ore Co., 66 N. Y. (11 Sick.) 618. 
 
 621. Purchase after maturity. Proof that 
 the plaintiff denied his ownership of the note 
 sued on a few days only after its maturity, is 
 suflicient prima facie to show a want of title 
 when the note became due, so as to let in any 
 defense the defendant may have against the 
 payee. Ct. App., 1872, Springer v. Dwyer, 50 
 N. Y. (6 Sick.) 19 ; Kev'g S. C., 68 Barb. 189. 
 
 622. Quantity. Although the parties to a 
 contract for the delivery of logs have agreed 
 upon a mode of measurement to ascertain the 
 quantity as between themselves to be paid for, 
 the vendee is not bound, in an action for non- 
 delivery of part, to prove the quantity lacking 
 by such measurement, but it is a fact ascertain- 
 able and proper to be established by any wit- 
 ness having sufficient knowledge to testify on 
 the subject. Com . Anp. ,1873, Bigler v. Ball, 54 
 N. Y. (9 Sick.) 167. 
 
 623. Refusal to permit examination. 
 In an action to recover damages for personal 
 injuries caused by defendant's negligence, the 
 defendant has a right to examine the actual 
 condition of the plaintiff, and if he refuses to 
 submit to such examination, to prove that fact 
 on the trial. Sup. Ct., 1865, Bechwith v. N. Y. 
 Cent. R. R. Co., 64 Barb. 299. 
 
 624. Representations. In an action to 
 charge a person as a partner with others for 
 goods sold to them, on the ground of representar 
 tions by him, on the faith of which the sale was 
 made, it is competent to show what the repre- 
 sentations were. Sup. Ct., 1872, Stiles v. 
 Meyer, 7 Lans. 190 ; S. C, 64 Barb. 77. 
 
 ^5. Reputable makers. In an action for 
 damages caused by the explosion of a steam 
 boiler, evidence that it was purchased of 
 reputable makers is competent as tending to 
 justify its use. Com. App., 1873, Losee v. Bu- 
 chanan, 61 N. Y. (6 Sick.) 476 ; Kev'g S. C, 61 
 Barb. 86. 
 
 526. Seizin of grantor. In an action to re- 
 cover certain rents reserved in a deed, by one 
 who has succeeded to the title of the grantor, 
 proof that the grantee entered upon the premises 
 in allegiance to the title thus obtained is 
 sufficient, as against one claiming under such 
 grantee, to establish seizin in plaintiff's grantor. 
 Com. App., 1872, Central Bank of l\oy v. 
 Beydmn, 48 N. Y. (3 Sick.) 260. 
 
 627. Similar transaction. In an action 
 involving the question whether a warehouse re- 
 ceipt was issued before all the property repre- 
 sented by it was received in store, evidence that 
 the defendant had upon another occasion given 
 a receipt before the property was received, is 
 irrelevant and improper, as it has no tendency 
 to prove that the receipt upon whichthe ques- 
 tion is raised in the suit was so issued. Sup. 
 Ct., 1874, McComhie v. Spader, 1 Hun, 198. 
 " 628. Subsequent legal appropriation. In 
 an action against several persons who are jointly 
 and severally liable with others for a simulta- 
 neous levy of irregular attachments upon the 
 plaintiff's property, evidence of a subsequent 
 legal appropriation of such property to plaintiffs 
 use by any one or more of the attachment 
 creditors, if admissible at all, cannot be re- 
 
310 
 
 EVIDENCE. 
 
 ceived, even in mitigation of damages, witliout 
 being pleaded. N. Y. Supr. Ct., 1871, Wehle v. 
 Butler, 43 How. 5 ; S. C, 12 Abb. N. S. 139 ; 
 34 N. Y. Supr. (2 J. & Sp.) 215 ; 35 N. Y. Supr. 
 (3 J. & Sp.) 1. 
 
 529. User of a right of way conveyed by 
 deed, with the acquiescence and recognition of 
 tlie right by the party whose land is affected by 
 it, is evidence of the extent of the right, but 
 not of its existence. Sup. Ct, 1872, 'Rex/ord v. 
 Marquis, 7 Lans. 249. 
 
 530. Usury. Evidence of prior usurious 
 transactions is not admissible to establish the 
 defense of usury in a particular instance. Ct. 
 App., 1871, Ross V. Ackerman, 46 N. Y. (1 Sick.) 
 210. 
 
 531. Value. It is not competent, on the 
 question of the value of one building or struc- 
 ture, to inquire into the value or cost of another, 
 however closely the two may resemble each 
 other. Ct. App., 1873, Gmge v. Roberts, 53N . Y. 
 (8 Sick.) 619. 
 
 532. In an action for an injury to a machine, 
 evidence of the value of another machine 
 similar to, but not exactly tlie same as the one 
 in question, is not admissible for the purpose of 
 showing the value of the latter before the injury. 
 N. Y. Supr. Ct., 1874, Color Printing Attachment 
 Co. V. Brown, 37 N. Y. Supr. (5 J. & Sp.) 433. 
 
 533. It is not necessary that a witness testify- 
 ing as to the value of property should do so 
 only from actual observation, but in a case 
 where, from the destruction of the property, no 
 witness can be produced who has had an oppor- 
 tunity to examine it, the value may be shown 
 hy witnesses conversant with property of that 
 nature, after hearing the testimony of others as 
 to its condition. Sup. Ct., 1872, Orr v. Mayor, 
 etc. of New York, 64 Barb. 106. 
 
 634. Tlie cost of property is not necessarily 
 its fair value ; nor is the nominal price paid for 
 it in unmarketable foreign bonds a fair criterion 
 of its value. N. Y. Supr. Ct., 1874, Sturm v. 
 Atlantic Mut. Ins. Co., 38 N. Y. Supr. (6 J. & 
 Sp.) 282. 
 
 535. The value of articles having no market 
 value may be shown by proof of facts which, 
 in the ordinary transaction of business, would 
 affect the mind of the dealer in similar articles 
 in determining the price to be asked or given ; 
 and for that purpose proof of the cost of the 
 article is admissible, and if paid for in anything 
 but money, the value of that in which payment 
 was made may be inquired into, and if such 
 articles are usually purchased at auction, the 
 prices given at auction sales at about the time 
 when the value is sought to be ascertained may 
 be shown. N. Y. Supr. Ct., 1874, Sturm v. 
 
 Williams, 38 N. Y. Supr. (6 J. & Sp.) 325. S. P., 
 Funk V. Orient Mut. Ins. Co., id. 349. 
 
 536. In an action against brokers for not selling 
 wool consigned to them, in compliance with 
 
 , orders, an account rendered by the defendants for 
 two bags sold by them after the plaintiff had 
 abandoned the wool to them, with proof of the 
 market value of wool in the month when the de- 
 fendants ought to have sold it, is competent and 
 sufficient to establish its value, in the absence 
 of other evidence. Sup. Ct., 1873, Whelan v. 
 I^nch, 65 Barb. 326. 
 
 587. The testimony»of one who knew the 
 value of other wool at the time, and the pub- 
 lished price current made up from information 
 received from persons using it in their business, 
 are also admissible. lb. 
 
 538. Where, in an action for conversion, the 
 plaintiff has given evidence of the value of the 
 
 property taken, between certain dates, evidence 
 is not admissible on the part of the defendant, 
 to show its value before and after those dates. 
 N. Y. Supr. Ct., 1869, Nauman v. Caldwell, 2 
 Sweeny, 212. 
 
 539. In an action by a claimant of goods sold 
 on execution against another party, to recover 
 
 ,the value thereof with damages for the taking, 
 evidence to show what they sold for at sheriff's 
 sale should be received and considered by the 
 jury in connection with other evidences of val- 
 ue, and be allowed sucli weight as the circum- 
 stances of the case entitle it to. N. Y. Supr. Ct., 
 
 1872, Heinmuller v. Abbott, 34 N. Y. Supr. (2 J. 
 & Sp.) 228. 
 
 540. In an action on a promissory note by the 
 executor of the payee, against the maker, where- 
 in the latter has set up the defense that the note 
 had been assigned to his wife and became his 
 own as her survivor, after he has put in evi- 
 dence the statements of the payee that he had 
 given the defendant's wife $500 ; that he had 
 given her $500 in personal property, farming 
 utensils, &c. ; that he had given her $500 in the 
 trade, &c., evidence is admissible on the part of 
 the plaintiff that the personal property sold her 
 was worth at least $500 more than the price 
 paid. Sup. Ct., 1874, Smith v. Sergent, 2 Hun, 
 107. 
 
 541. In a proceeding under ch. 609, Laws of 
 
 1873, to acquire for public use the right to divert 
 and use the water of a lake belonging to private 
 parties, the latter, for the purpose of showing 
 the value of the lake as a source of water sup- 
 ply, may properly be permitted to show that but 
 one other pond suitable for sucli a supply exists 
 within a radius of sijf'miles. Sup. Ct., 1874, In 
 matter of Trustees of College Point v. Dennett, 2 
 Hun, 669. 
 
 542. Value of services. What plaintiff said 
 he would charge for his services, is not compe- 
 tent evidence upon the question of their value. 
 Ct. App., 1871, Robinson v. Weil, 45 N. Y. (6 
 Hand,) 810. 
 
 543. In an action by an attorney for profes- 
 sional services, any testimony which tends to 
 show the nature and importance of the contro- 
 versy in which they were rendered, and what 
 results hung upon it in other matters, and how 
 other matters affected it and increased its gravi- 
 ty, is competent upon the question of the value 
 of such services. Ct. App., 1873, Harland v. 
 Lilienthal, 53 N. Y. (8 Sick.) 438. 
 
 544. A comparison of the relative amount of 
 labor required of a broker in negotiating a sale 
 of a lease as compared with a sale of the title to 
 property, — Held, not competent for the purpose 
 of determining the proper compensation for per- 
 forming eitlier of the services named. Com. 
 App., 1873, Siegel v. Lewis, 54 N. Y. (9 Sick.) 651. 
 
 545. In an action for services rendered upon a 
 contract void for want of mutuality, evidence of 
 the amount paid upon settlement of a former ac- 
 tion for services previously rendered on the same 
 contract, is admissible upon' the question of 
 value ; but it is not conclusive upon that point ; 
 and the defendant should be permitted to show 
 that the services subsequently rendered were of 
 a different character or not so valuable. N. Y. 
 G. P., 1871, Briggs v. Smith, 4 Daly, 110. 
 
 546. In an action upon a quantum meruit for 
 two years' services, performed upon a void con- 
 tract for three years, the rate of compensation 
 fixed by the agreement, which was uniform for 
 the whole term, is not competent evidence of the 
 value of such services, where the plaintiff at the 
 beginning was ignorant of the business, and the 
 
EVIDENCE. 
 
 311 
 
 contract contemplated instruction to be given 
 him and his acquiring increased skill during the 
 term. Ct. App., 1871, Galvin v. Prentice, 45 N. Y. 
 (6 Hand,) 162. 
 
 547. In an action to recover compensation for 
 services rendered in chartering a vessel, it is 
 competent on the question of value, to prove the 
 the customary price paid for such services at the 
 place where they were rendered. Com. App., 
 1872, Sturgis v. Hendricks, 51 N. Y. (6 Sick.) 635. 
 
 548. In an action by a sheriff upon a special 
 contract, to recover for services not taxable for 
 by law, the certificate of a taxation thereof, 
 made by a justice of the Supreme Court upon 
 requisition of the sheriff himself, is incompetent 
 as evidence of the value of the services. N. Y. 
 C. P., 1870, Lynch v. Myers, 8 Daly, 256. 
 
 549. Value of use. In an action to recover 
 for the use of a wagon, evidence of its value 
 when received and when returned, is competent 
 upon the question of the value of its use. Sup. 
 Ct., 1874, Wilcox V. Palmeter, 2 Hun, 517. 
 
 550. Proof that the plaintiff was offered a cer- 
 tain price for the use of property, is not compe- 
 tent, in an action of replevin for such property, 
 to establish the amount of damages for its deten- 
 tion. Sup. Ct., 1875, Young. v..Atwood, 5 Hun, 234. 
 
 551. Future value. In an action to recover 
 damages for the breach of a contract to return 
 leased sheep in the same condition as when let, 
 by reason of such returned sheep having been 
 with a buck at an improper season so that they 
 began to drop their lambs in winter, and the 
 consequent death of some of tlie lambs, it is not 
 proper to ask the plaintiff's witnesses " what 
 these sheep were worth less by reason of their 
 dropping their lambs earlier than if in proper 
 season," especially where they found their testi- 
 mony upon their estimate of the value of lambs 
 in August and September following, as sold to 
 butchers. Sup. Ct., 1870, Williams v. Frazier, 
 41 How. 428. 
 
 552. The verdict of a jury in a justice's 
 court " that the note of $42,88 stand over to 
 April 1st next," is not competent evidence to 
 show that the defendant's liability on such note 
 was not adjudicated in that suit ; because the 
 jury have no authority to render such a verdict. 
 Sup. Ct., 1873, Marcellus T. Countryman, 65 Barb. 
 201. 
 
 558. Verified account. In an action against 
 an executor on an aceoimt against his testator, 
 it is not proper to admit in evidence on the trial 
 a copy of the verified account served by the 
 plaintiff on the defendant with an offer to refer, 
 even on the ground that they are addressed to 
 the court on the question of costs. Sup. Ct., 
 1874, Tucker y. Stevens, 2 Hun, 424. 
 
 XL Confessions and seclabations ; seb 
 
 GSBTM. 
 
 654. . In general. In order to give the admis 
 sions of a party in evidence against him, he must 
 first be examined as to whether or not he made 
 them. Sup. Ct., 1875, Boot v. Brown, 4 Hun, 797. 
 
 655. The declarations and admissions of a 
 party as to a material fact in the case, are al- 
 ways competent evidence against him, although 
 they may be inconsistent with and tend to con- 
 tradict the testimony of other witnesses offered 
 by the adverse party. Ct. App., 1871, Williams 
 v. Sargeant, 46 N. Y. (1 Sick.) 481. 
 
 556. Declarations of a party made to a third 
 person, tending to corroborate the testimony of 
 the adverse party in a material point, are perti- 
 nent and proper evidence ; and when denied by 
 
 the party making them, may be shown for the 
 purpose of impeachment. Ct. App., 1874, Cam- 
 eron V. Durkheim, 55 N. Y. (10 Sick.) 425. 
 
 557. "The statement of a party as to the amount 
 of rents received by him from certain real estate 
 is competent evidence, as against him, of the 
 value of such real estate ; and a witness who, at 
 his request, made an entry in his book of the 
 amount at the time, may testify from such entry. 
 Ct. App., 1871, Burgess v. Simonson, 45 N. Y. (6 
 Hand,) 225. 
 
 558. In an action by an executor to set aside 
 certain conveyances of his testator for fraud and 
 undue influence, declarations of the defendant to 
 the effect that he was taking the property for 
 the purpose of holding and protecting it for the 
 testator and his children, though not admissible 
 for the purpose of establishing a trust, are com- 
 petent to sliow the pretended purpose of such 
 defendant and his real intent to obtain the prop- 
 erty for himself. Ct. App., 1874, Piatt v. Piatt, 
 58N. Y. (3 Sick.) 646. 
 
 559. An account rendered is an admission, 
 and. prima facie evidence against the party mak- 
 ing it ; but it is not conclusive, and does not 
 estoD him from showing the truth. Com. App., 
 1871, Champion v. Joslyn, 44 N. Y. (5 Hand,) 653. 
 
 560. The acceptance of an order drawn 
 upon a particular fund in the hands of the 
 drawee, is an admission on the part of the ac- 
 ceptor that the drawer has an interest, to the 
 amount of such order, in that fund. Ct. App., 
 1871, Richardson v. Carpenter, 46 N. Y. (1 Sick.) 
 660 ; Eev'g S. C, 2 Sweeny, 360. 
 
 561. Declaration heard and admitted. A 
 declaration or statement made by one person in 
 the presence of his associates, and acquiesced in 
 by them, is admissible in evidence against them 
 as well as himself. Sup. Ct., 1875, Lathrop v. 
 Bramhall, 3 Hun, 394. 
 
 562. An entry made in the books of a deceas- 
 ed person in relation to a matter which is the 
 subject of a suit between the executor of such 
 deceased and a third party, shown to have been 
 read to and admitted by such third party, is as 
 competent evidence as would be any parol state- 
 ment of facts made to and admitted by him. 
 Sup. Ct, 1874, Tucka: v. Stevens, 2 Hun, 424. 
 
 663. Lease. In an action against a railroad 
 company to recover damages sustained by the 
 plaintiff in consequence of the obstruction of a 
 stream by a bridge throwing back the water 
 upon the plaintiff's premises, a lease by the de- 
 fendant of its road to another company for 490 
 years, reserving rents and covenanting for quiet 
 enjoyment, introduced by the plaintiff, is suffi- 
 cient, in the absence of any dispute on the trial, 
 to establish the defendant's ownership of the 
 road. Sup. Ct., 1875, Conhocton Stone R. Co. v. 
 Buffalo, N. Y. ondE. R. R. Co., 3 Hun, 523. 
 
 664. Offers of compromise. In an action 
 against an insurance company for a loss of in- 
 sured goods, where the sufficiency of the proofs 
 of loss is contested, evidence of offers of com- 
 promise made by the company in settlement 
 of the loss is admissible as bearing upon the 
 question of the sufficiency of such proofs. 
 N. Y. Supr. Ct., 1878, Townsend v. Merchants 
 Ins. Co., 45 How. 501 ; S. C, 86 N. Y. Supr. (4 
 J. & Sp.) 172. 
 
 565. Pleading. An admission by a party con- 
 tained in a pleading, is admissible in evidence 
 against him in the same or any other action, it 
 being first made to appear, by his signature or 
 otherwise, that such admission was inserted with 
 his knowledge and sanction. Com. App., 1871, 
 Cook V. Barr, 44 N. Y. (5 Hand,) 156. 
 
312 
 
 EVIDENCE. 
 
 566. An admission of an allegation in a com- 
 plaint against a corporation on a contract made 
 witii its president, that sucli president was au- 
 thorized to manage its affairs, and to make con- 
 tracts on its hehalf, is sufficient to render proof 
 on that subject unnecessary. N. Y. Supr.' Ct., 
 1873, Sturgis v. New Jersey Steam Navigation Co., 
 35 N. Y. Supr. (3 J & Sp.) 251. 
 
 567. — failure to plead. Where, after a de- 
 murrer to the complaint is overruled, the defend- 
 ant fails to answer, all the material facts stated 
 in the complaint are, for the purposes of the ac- 
 tion, to be taken as true ; and the plaintiff does 
 not lose the benefit of this implied admission by 
 entering into proof, and allowing without ob- 
 jection proof to be introduced on the part of the 
 defendant. Ct. App., 1874, Darling v. Brewster, 
 55N. Y. (10 Sick.f 667. 
 
 568. In a suit against the holder and the mak- 
 er of a note, after the latter has paid the amount 
 to the former, to set aside the transfer of the 
 note on the ground that it was made in fraud of 
 a judgment creditor, and to compel payment to 
 the plaintiff, tlie failure of the holder to appear 
 and answer cannot be used as evidence of the 
 fraud as against the maker. Com. App., 1871, 
 Terry v. Wait, 47 How. 52; S. C, 48 N. Y. (8 
 Sick.) 657. 
 
 569. Receipt of bill. If a buyer of goods 
 receives without objection bills thereof, naming 
 a person or corporation as seller, that is conclu- 
 sive upon him as an admission that he bought 
 from such seller, although he actually dealt with 
 another. N. Y. Supr. Ct., 1874, Fisk Pavement, 
 etc. Co. v. Evans. 37 N. Y. Supr. (5 J. & Sp.) 482 ; 
 Aff'd, 60 N. Y. (15 Sick.) 640. ' 
 
 570. Silence. One to whom a' sale of pro- 
 duce is made as principal, cannot release him- 
 self from liability, after a sale thereof by par- 
 ties to whom he has consigned it, by informing 
 the seller that he must look to such parties for 
 his pay, claiming that he purchased as their 
 agent ; and the silence of the seller, after re- 
 ce.iving such information, cannot be construed 
 as converting a principal into an agent upon the 
 theory of ratification, acquiescence or estoppel, 
 although it might be some evidence of the truth 
 of the facts stated. Sup. Ct., 1874, Darrow v. 
 Northrop, 1 Hun, 431. 
 
 571. The failure of the officers of a telegraph 
 company to reply to a letter, containing a de- 
 tailed statement of alleged facts relative to the 
 negligence of the employes of the company in 
 not sending plaintiff's message in time, and 
 claiming damages therefor, and to deny the truth 
 of such statement, cannot be treated as an ad- 
 mission of the truth thereof, so as to render such 
 letter admissible as evidence for the plaintiff. 
 N. T. C. P., 1872, Waring v. U. S. Telegraph. Co., 
 44 How. 69 ; S. C, 4 Daly, 233. 
 
 572. Non-denial of a verbal statement, even 
 when made in a party's presence can be receiv- 
 ed as evidence of an admission, only when such 
 declaration or statement is of a kind which calls 
 for an immediate, contradiction, or would 
 naturally lead to some action or reply on the 
 part of such party. Much less can the neglect 
 to answer, a letter be received as evidence of an 
 admission. lb. 
 
 573. Privileged communications. The 
 rule which precludes an attorney from disclos- 
 ing what occurs between himself and his client, 
 was meant for the client's benefit, and may be 
 waived by him. N. Y. C. P., 1869, Britton v. 
 Lorens, 3 Daly, 22. 
 
 574. Communications made to an attorney in 
 the presence of both parties to a controversy, 
 
 are not privileged, but as between them are 
 competent evidence. S. C, 45 N. Y. (6 Hand,) 
 51. 
 
 575. Whole of conversation. Where part 
 of a conversation or written declaration has 
 been given in evidence, the party against whom 
 it is given may put in evidence any other part 
 which will in any way explain or qualify the 
 part first given, but not any part which is irrele- 
 vant or unnecessary for that purpose. N. Y. 
 Supr. Ct., 1874, Sturm v. Williams, 38 N. Y. 
 Supr. (6 J. & Sp.) 325. S. P., Billings v. O'Brien, 
 45 How. 392 ; 14 Abb. N. S. 238 ; 4 Daly, 556 ; 
 Root V. Brown, 4 Hun, 797. 
 
 576. In an action to recover damages for cer- 
 tain fraudulent representations set out in the 
 complaint, other statements and representations 
 made hy the defendant in the same conversa- 
 'tion, and which cannot be separated from those 
 charged, are admissible in evidence, even though 
 they may be sufficient to sustain a separate al- 
 legation of fraud. Sup. Ct., 1871, Updike v. 
 Abel, 60 Barb. 15. 
 
 577. Representations which are equivalent to 
 those charged in the complaint are also admis- 
 sible in evidence, as tending to show the animus 
 with which the others were made. lb. 
 
 578. A witness who, in answer to a question, 
 has admitted tha-t he had been arrested for a 
 crime imputed to him, has the right to explain 
 why he was so arrested; and if that explana- 
 tion involves conversatiotts with third persons, 
 he has a right to have such conversations re- 
 ceived in evidence. Sup. Ct., 1871, Murphy v. 
 Dart, 42 How. 81. 
 
 579. Declarations of administrator be- 
 fore appointment. The declarations of one 
 who sues as administrator, relative to his intes- 
 tate, made before his appointment as adminis- 
 trator, and not in the presence of such intestate, 
 are not admissible in evidence against him. 
 Sup. Ct., 1875, Cushman v. U. S. Life Ins. Co., 4 
 Hun, 783. 
 
 580. Of agency. Evidence that the plaintiff, 
 in negotiating the contract for the sale of the 
 machines on which the siiit is founded, said to the 
 purchaser that certain persons named had the 
 whole control of that machine business, "And 
 whatever arrangement they may make, I shall 
 be satisfied and content with," is sufficient to 
 establish the agency of such persons to bind the 
 plaintiff by their acts and declarations. N. Y. 
 Supr. Ct., 1874, Goodwin v. Eirsch, 37 N. Y. 
 Supr. (5 J. & Sp.) 503. 
 
 581. In an action for the price of milk sold, 
 where it appears in evidence that the defendant, 
 when making the contract, said that a man 
 named Stone was to make the milk into cheese, 
 and any bargain plaintiffs might make with 
 Stone would be the same as if made with him- 
 self, the declarations of Stone when he came to 
 complete the bargain are admissible in evidence 
 for the plaintiffs. Sup. Ct, 1872, Seymour v. 
 Matteson, 42 How. 496. 
 
 582. In an action involving the question of 
 the value of goods attached by the defendants, 
 evidence is admissible to show that the plain- 
 tiff referred the witness to her brother and at- 
 torney as to the value of such goods, and the 
 declarations of the latter made to witness after 
 he had been so referred to him. Sup. Ct., 1874, 
 Wehle V Spelman, 1 Hun, 634^ 
 
 583. Of agent. Declarations made by an 
 agent in the course of a negotiation, which 
 either form a part of the contract sued on> or of 
 the inducement which led to it, may be proved 
 against the principal, and are binding upon him 
 
EVIDENCE. 
 
 313 
 
 the same as if made by himself. N. T. Supr. 
 Ct, 1874, Goodwin v. Eirsch, 87 N. Y>Supr. (5 J. 
 & Sp.) 508. 
 
 584. The absolute exclusion of all such decla- 
 rations not made in the presence of the princi- 
 pal is error, even though some other facts neces- 
 sary to make them material and competent 
 were not proved, where it appears that no ques- 
 tion as to the existence of such facts was or was 
 not intended to be raised. lb. 
 
 585. The declarations of an agent respecting 
 the subjectmatter of liis agency, made after his 
 agency had terminated, are not admissible to 
 charge his principal. N. Y. C. P., 1869, Dart v. 
 Walker, 8 Daly, 136. 
 
 586. In order to make the declarations of an 
 agent competent evidence against his principal, 
 they must be made, not only during the con- 
 tinuance of the agency, but in regard to a trans- 
 action depending at the very time. Com, App. 
 
 1873, Anderson v. Rome, Wat. and Ogd. R. R. Co., 
 64N. Y. (9 Sick.) 834. 
 
 687. In an action against a railroad company 
 for personal injuries received in a railway acci- 
 dent, — Held, that the declarations of a trackman 
 as to his reason for hiding the pieces of a broken 
 rail, made some six months after the transaction, 
 but while he was still in the employ of the com- 
 pany, were not competent evidence against it. 
 lb. 
 
 588. False representations made by an agent 
 at the time of the sale of grain by him for his 
 principal, relative to the quality thereof, which 
 were relied upon by the purchaser in making 
 the purchase, are admissible in evidence to sus- 
 tain the defense of fraud to an action for the 
 price ; and where such representations were 
 made to the agent of the purchaser, the latter 
 may show that they were communicated to and 
 acted upon by him. Sup. Ct., 1874, Kelly v. 
 Donahue, 47 How. 62 ; S. C, 1 Hun, 112. 
 
 589. The declarations of a contractor for the 
 construction of a vessel, as to the use made of 
 lumber purchased by him, made after all the 
 lumber has been delivered, are not admissible in 
 evidence against the owner of such vessel. 
 Com. App., 1872, Happy v. Mosher, 48 N. Y. (3 
 Sick.) 313; Rev'g S. C, 47 Barb. 500. 
 
 590. Declarations of one professing at the time 
 to be acting as agent for another, are not com- 
 petent to charge the latter, without proof in 
 some way connecting him therewith. Ct. App., 
 
 1874, Snook-\. Lord, 56 N. Y. (11 Sick.) 605. S. P. 
 Hoppoch V. Moses, 43 How. 201 ; Scott v. Ste- 
 venson, 3 Hun, 352. 
 
 591. The statements and representations of an 
 agent of a corporation are not admissible in evi- 
 dence in an action against the trustees or di- 
 rectors individually, for fraud. Ct. App., 1874, 
 Arthur v. Griswold, 55 N. Y. (10 Sick.) 400. 
 
 592. An admission by a railroad superintendent, 
 on the presentation to him of a claim for lost bag- 
 gage, that such claim is a good one, not being 
 part of the res gestce, is not competent evidence 
 against the company in an action to recover for 
 the loss. N. Y. C P., 1872, Greenv. N. Y. Central 
 R. R. C'o.,12 Abb. N. S. 4^3 ; S. C, 4 Daly, 553. 
 
 593. The declarations of the general agent of 
 a life insurance company, made after the time 
 when premiums became due upon 9. policy, or 
 
 • after the death of the assured, are not admissi- 
 ble in evidencfe, in an action on the policy, to 
 show an agreement previously made by him 
 with the assured, for an extension of the time 
 for payment of the premiums. Sup. Ct., 1874, 
 Dean v. JEtna Life Ins Co., 48 How. 36 ; S. C, 2 
 Hun, 358. 
 
 694. Of assignor. In an action upon a life 
 insurance policy by an assignee thereof, the acts 
 and declarations of the assignor previous to ef- 
 fecting tlie insurance are not admissible in evi- 
 dence. .Sup. Ct., 1876, Edington v. Mut Life Ins. 
 Co. ofN. Y., 5 Hun, 1. 
 
 595. As against an assignee of personal prop- 
 erty for the benefit of creditors, the declarations 
 of his assignor, made previous to the purchase 
 of such property, are inadmissible to show fraud 
 in the purcliase. Ct. App., 1872, Bullis v. Mont- 
 gomery, 50 N. Y. (5 Siok.) 852. 
 
 596. After satisfactory proof that an assign- 
 ment was entered into by both assignor and as- 
 signee with a common purpose of defrauding 
 the creditors of the former, his acts and declara- 
 tions after the assignment are competent evi- 
 dence against the assignee, not to show the 
 formation of the common purpose, but to prove 
 its execution, extent, and effect. Ct. App., 1872, 
 Newlin V. Lym, 49 N. Y. (4 Sick.) 661. 
 
 597. Of confederates. Tlie acts, declara- 
 tions and statements of confederates, or any of 
 them, are admissible agsiinst all when they form 
 part of the res gestae ; but when made after the 
 act for whicli they are sought to be charged, 
 they are admissible only against the one doing 
 or making them. N. Y. C. P., 1869, Dart v. 
 Walker, 3 Daly, 136. S. P. Miller v. Barber, 4 
 Hun, 802. 
 
 598. Of oo-teuant. In an action respecting an 
 easement in real property, the declarations of a 
 former owner of a moiety of the estate, upon the 
 subject-matter in litigation, made in the pres- 
 ence and hearing of his co-tenants, are compe- 
 tent against a claimant under either. Ct. App., 
 1872, Crippen v. Morss, 49 N. Y. (4 Sick.) 63. 
 
 599. Of deceased. In an action by an ad- 
 ministratrix to recover back property attached, 
 on the ground that it belonged to her intestate 
 and not to the attachment defendant, the dec- 
 larations of the deceased to third parties relative 
 to the ownership of such property are admissi- 
 ble in evidence for the defendant. Sup. Ct., 
 1874, Wooster v. Booth, 2 Hun, 426. 
 
 600. The declarations of a deceased person 
 are not admissible in evidence in an action 
 against his executors to recover a debt due from 
 his estate, to show that he was not indebted to 
 the plaintifi. Sup. Ct., 1875, Weller v. Weller, 4 
 Hun, 195. 
 
 601. In ejectment by the heirs or grantees of 
 a person deceased, evidence of the declarations 
 of the latter, made at a sherifE's sale in the hear- 
 ing of the bidders, and with a view to influence 
 the sale, prior to the grant to or vesting of title 
 in the plaintiffs, that he had no interest in the 
 lands, and the title was all in the execution 
 debtor, is admissible in favor of the grantee of 
 the party purchasing at such' sale. Ct. App., 
 1871, Mattoon v. Young, 45 N. Y..(6 Hand,) 696. 
 
 602. Whether or not such statements are of 
 themselves sufficient to create an estoppel, their 
 rejection is error, as additional evidence that 
 the purchaser was induced to act thereby might 
 be given. lb. 
 
 603. Of donor. In a contest respecting the 
 fact of a gift having been made, as between the 
 donee and the representatives of the deceased 
 donor, the declarations of the latter are admissi- 
 ble in evidence, beiftg against his interest when 
 made, and as a universal rule, the admissions 
 of a testator or intestate are admissible against 
 his representatives. Sup. Ct., 1862, Hackney y. 
 Vrooman, 32 Barb. 650. 
 
 604. The declarations of a father who, on 
 purchasing real estate, caused the deed to be 
 
314 
 
 EVIDENCE. 
 
 given to his daughter, that such real estate be- 
 longed to his daughter, made to the assessor 
 who called upon him for the purpose of assess- 
 ing liis property, are admissible in evidence as 
 bearing upon the question of the delivery of the 
 deed, though not for tlie purpose of showing 
 title. Sup. Ct., 1873, Shrader v. Banker, 65 Barb. 
 608. 
 
 605. Of former holder. The declarations 
 of tlie former liolder of a note are not competent 
 evidence against one deriving title from him, 
 especially if the latter is a holder for value. 
 Sup. Ct., 1872, Osbam v. Bobbins, 7 Lans. 44. 
 
 606. An averment in the answer to an action 
 upon a note by an assignee, that the note was 
 obtained through a conspiracy to extort money, 
 of which the plaintiff had notice, does not 
 charge the plaintiff with being engaged in the 
 conspiracy with the former holders of the note, 
 so as to make their declarations evidence against 
 him. lb. 
 
 607. In an action upon a promissory note by 
 the executor of the payee against the maker, 
 where the latter sets up the defense that the 
 note had been assigned to his wife, and became 
 his as her survivor, evidence of the admissions 
 of the wife that the payee had always remained 
 the owner of the note are admissible in evidence. 
 Sup. Ct., 1874, Smith v. Sergent, 2 Hun, 107. 
 
 608. Of former owner. The declarations of a 
 former owner of personal property are incom- 
 petent evidence for any purpose as against all 
 others but himself and his immediate represen- 
 tives. Sup. Ct., 1874, Simpson v. McKay, 3 Hun, 
 316. They are not admissible against a pur- 
 chaser. Sup. Ct., 1875, Ladue v. Warner, 3 Hun, 
 547 ; Ct. App., 1874, Tilsol v. Tenoilliqer, 56 N. 
 Y. ( 11 Sick. ) 273. But may be used to impair 
 the credibility as a witness of the person making 
 them. Sup. Ct., 1863, Knight v. Forward, 63 
 Barb. 311. 
 
 609. The declarations of a vendor of personal 
 property as to facts tending to show in whom 
 is the title, are admissible in evidence against 
 the purchaser from him, only where the latter 
 really defends the action for the benefit of tlie 
 vendor. Sup. Ct., 1875, Milliner v. Lucas, 3 Hun, 
 496. 
 
 610. Of grantor. In an action to set aside a 
 conveyance as being fraudulent as to creditors, 
 the declarations of the grantor, made after the 
 conveyance, are only admissible as against him- 
 self, to show a fraudulent intent on his' part. 
 They are not evidence to charge the grantee 
 with a fraudulent intent in taking the convey- 
 ance. Sup. Ct., 1873, Orr v. Gilmore, 7 Lans. 
 345. 
 
 611. In an action to set aside a deed as being 
 fraudulent and void as against creditors, where 
 the grantor is a witness for defendants, and on 
 direct examination gives evidence tending to 
 sustain the bma fides of the deed, the plaintiff 
 may contradict such testimony by showing that 
 he has made statements inconsistent therewith 
 to other parties, his attention having been first 
 called to them on cross-examination, and he 
 denying them. Ct. App., 1858, Fullerton v. Viall, 
 42 How. 294. 
 
 612. The declarations of one under whom a 
 defendant in an action for trespass claims title 
 to the premises, are admissible in his favor, to 
 characterize his possession as adverse to that of 
 the plaintiff ; and it is sufficient to justify the 
 admission, that the defendant has pleaded title 
 generally, without showing that it was claimed 
 or held by adverse possession. Com. App., 1872, 
 Morse v. Salisbury, 48 N. Y. (3 Sick.) 686. 
 
 613. In an action for a trespass upon land, the 
 event of which depended on the location of a 
 boundary line between the parties, evidence of 
 declarations respecting such line made by de- 
 fendant's grantors while owning and in posses- 
 sion of the disputed premises are admissible in 
 favor of the plaintiff. Sup. Ct., 1870, Smith v. 
 McNamara, 4 Lans. 169. 
 
 614. Like declarations by such grantors, tend- 
 ing to contradict those introduced by plaintiff, 
 are admissible on the part of defendant, and are 
 competent to show the extent of the possession 
 claimed by them, although they weje not then 
 in the actual possession or upon or in view of 
 the disputed line. lb. 
 
 615. Of husband. In an action against a 
 husband and wife ^nd an intermediate party, 
 through whom the husband had passed the title 
 of property to his wife, the examination of the 
 husband on supplementary proceedings in a srnt 
 against him alone is not admissible against the 
 other parties. Sup. Ct., 1S71, Bennett y.McGuire, 
 
 5 Lans. 183. 
 
 616. In an action by the assignee of a married 
 woman, the declarations of the husband, who 
 acted as the agent of his wife in conducting her 
 business, made in the absence of the wife and 
 not in connection with any act of his as agent, 
 are incompetent as evidence. Ct. App., 1871, 
 Warner v. Warren, 46 N. Y. (1 Sick.) 228. 
 
 617. Of married woman. The declarations 
 and admissions of a married woman, made at 
 the time of contracting for furniture for a board- 
 ing house, that she was carrying on the house 
 in her own name and her husband had nothing 
 to do with it, — that everything she purchased 
 was her own, and her husband had a separate 
 business, — are competent evidence that she is 
 carrying on a separate business and bought the 
 property for that business. N. Y. Supr. Ct., 
 1871, Sulzbacher v. Davison, 34 N. Y. Supr. (2 J. 
 
 6 Sp.) 145. 
 
 618. Of member of board. Statements or 
 admissions made by one member of a board of 
 trustees in relation to the matter in controversy, 
 not made at the time of the negotiation so as to 
 constitute part of the res gestce, but subsequent 
 thereto and in explanation thereof, are not ad- 
 missible in evidence against such board. Sup. 
 Ct., 1874, Jex V. Board of Education of N. Y. 
 City, 1 Hun, 157. 
 
 619. Of minor. In an action by a parent for 
 unlawfully harboring a minor who had pre- 
 viously abandoned his service without his con- 
 sent, and aiding his enlistment into military 
 service, it is competent for the defendant to 
 show the declarations of the minor, made at the 
 time, to the effect that he had his father's con- 
 sent. Ct. App., 1872, Caughey v. Smith, 47 N. Y. 
 (2 Sick.) 244. 
 
 620. Of ofBcers of corporation. In an 
 action against a corporation, acts, declarations, 
 and statements, written and verbal, made by the 
 officers of the company having charge of its 
 affairs, aiid in the discharge of their duties, in 
 the course of the company's business, and relat- 
 ing directly to current transactions therein, are 
 admissible in evidence to show the plaintiff's 
 authority to incur the expenses charged for. 
 Ct. App., 1874, Wild .V. iVT Y. and Austin Silver 
 Mining Co., 59 N. Y. (14 Sick.) 644. " 
 
 621. The declarations of the president of a 
 manufacturing corporation, in a matter affecting 
 its business, and in respect to which he was act- 
 ing for it, would be admissible as evidence 
 against the company to establish its liability, 
 and are therefore competent for the same pur- 
 
EVIDENCE. 
 
 315 
 
 pose against trustees of the corporation in an 
 aotion to enforce their liability by reason of 
 their failure to file an annual report. Ct. App., 
 1875, Hoag v. Lamont, 60 N. T. (15 Sick.) 96. 
 
 6ii2. In an action against a bank to recover 
 for property deposited with it as a gratuitous 
 bailee, and stolen by burglars, it is improper to 
 allow a witness who has testified to his having 
 warned the president of the bank of attempts at 
 robbery and indications of intended robbery of 
 the bank, to testify to a conversation had with 
 such president after the robbery, in which he 
 requested the witness not to mention their pre- 
 vious conversations — the bank not being bound 
 thereby. Ct. App., 1875, First Nat. Bank of 
 Lyons v. Ocean Nat. Bank, 60 N. Y. (15 Sick.) 
 278 ; Kev'g S. C, 48 How. 148. 
 
 623. Of party in his o'vra favor. In an 
 aotion to recover damages for injuries sustained 
 by negligence, the declarations of the party 
 injured, made at or about the time of the occur- 
 rence, are admissible in evidence to show the 
 nature and extent of the injury. N. Y. Supr. 
 Ct., 1874, Gardner v. Bennett, 38 N. Y. Supr. (6 
 J. & Sp.) 197. Such declarations made to the 
 physician called to prescribe for him, in relation 
 to his physical condition, are admissible. Sup. 
 Ct., 1862, Matteson v. N. Y. Cent. E. R. Co., 62 
 Barb. 364 ; Cleveland v. N. J. Steamboat Co., 5 
 Hun, 523. 
 
 624. The plaintiff, in an action for personal 
 injuries, having testified that he had been un- 
 able since the injury to perform bodily labor, 
 and the defendant having shown that he did on 
 one occasion perform such labor ; — Seld, that it 
 was not competent for the plaintiff, in rebuttal, 
 to show that, at the time this labor was per- 
 formed, he declared to a person casually present, 
 that he did not feel well. Ct. App., 1871, Reed 
 V. New York Central R. R. Co., 45 N. Y. (6 
 Hand,) 574; Kev'g S. C, 56 Barb. 493. 
 
 625. Although a plaintiff cannot give his own 
 declarations as direct evidence in a case, yet, 
 where he sues upon a warranty of a horse qual- 
 ified by a direction as to the treatment of a 
 bunch on its leg, and proves that he called a 
 horse farrier to examine such bunch, who pre- 
 scribed a different treatment, and the defendant 
 proves by the farrier, on cross-examination, 
 that the plaintiff did not follow his advice, the 
 plaintiff, to rebut the inference that his neglect 
 to follow such prescription caused the failure to 
 cure, may prove by the farrier that he told the 
 latter that he had no right to pursue that treat- 
 ment, hecause his vendor had directed the treat- 
 ment to be used. Sup. Ct., 1871, Smithy. Borst, 
 63 Barb. 57. 
 
 626. Where the declarations of a party have 
 been given in evidence for the purpose of show- 
 ing inconsistent statements, it is not competent 
 for him to give in evidence other declarations, 
 made about the same time and relating to the 
 same subject, but not shown to be a part of tlie 
 same conversation, or in the presence of the 
 other witness. Ct. App., 1871, Downs v. New 
 York Central' R. R. Co., 47 N. Y. (2 Sick.) 88. 
 
 627. In an action by the vendees of a flock of 
 sheep for a conversion of the wool by the 
 vendor, where the terms of the agreement are 
 undisputed, an admission by one of the plain- 
 tiffs that he did not understand that he had 
 bought the wool is not competent. Com. App., 
 1872, Groat v. Gile, 51 N. Y. (6 Sick.) 431. 
 
 628. Of payee. The declarations of the 
 payee of a note, made to the maker, in the 
 absence of the party discounting it, as to what 
 the latter said, are inadmissible to prove usury 
 
 against the one of whom they were made. Ct. 
 App., 1871, Ross V. Ackerman, 46 N. Y. (1 Sick.) 
 210. 
 
 629. Of person in possession. The de- 
 clarations of a joint tenant of lands who is in 
 actual possession thereof, under a deed purport- 
 ing to convey the entird title, are admissible in 
 evidence to restrict his claim and show that it 
 is not adverse to his co-tenants. Sup. Ct., 1869, 
 King v. Whaleij, 59 Barb. 71. 
 
 630. Of principal. In an action against the 
 principal and surety of a bond, given to secure 
 the faithful performance by the principal of his 
 duties as an officer of a bank, where the surety 
 alone appeared and answered, — Held, that it. 
 was error to admit in evidence the admissions of 
 the principal, made long after the transaction to 
 which they related occurred, and after he ceased 
 to be an officer of the bank. Sup. Ct., 1874, 
 Tenth National Bank of New York v. Darragh, 1 
 Hun, 111. 
 
 631. Of public officer. The declarations 
 of a public officer of a county are not admissible 
 in evidence against such county, unless part of 
 the res gestce. Com. App., 1870, Cortland County 
 V. Beriimer County, 44 N. Y. (5 Hand,) 22. 
 
 632. Of servant. In an action against a 
 street railway company for a wilful injury, 
 committed by a driver of one of its cars in run- 
 ning against the plaintiff and throwing him 
 down, evidence of declarations made by such 
 driver after the car had passed the scene of col- 
 lision, are not competent to show the quo animo 
 of the act Com. App., 1872, Whitaker v. Eighth 
 Ave. R. R. Co., 61 N. Y. (6 Sick.) 295; Rev*g 5 
 Rob. 650. 
 
 633. Of sheriff. The declarations of a 
 sheriff who sold land on execution and gave a 
 deed therefor, tending to prove that the execu- 
 tion had been paid before the sale, are not 
 admissible after his death to impeach the title 
 of the purchaser. Com. App., 1870, Woodqate 
 V. Fleet, 11 Abb. N. S. 41 ; S. C, 44 N. V'. (5 
 Hand,) 1. 
 
 634. Of shipper. Declarations of a shipper 
 of goods, made to the carrier's bookkeeper, 
 explanatory of liis act in refusing a bill of lad- 
 ing presented him by the latter, are admissible 
 in evidence against such carrier as part of the 
 res gestce transacted with such agent. Ct. App., 
 1871, Sturgess v. Bissell, 46 N. Y. (1 Sick.) 462. 
 
 635. Of testator. The declarations of a 
 testator as to his having made a will, and as to 
 the provisions thereof, may be admitted in evi- 
 dence when offered strictly as corroborative of 
 the other proof as to the genuineness of the 
 signature, or the freedom of the testator from 
 undue influence, and in rebuttal of the contes- 
 tant's evidence on those points. Surr. Ct., 1871, 
 Taylor Will Case, 10 Abb. N. S. 300. 
 
 636. Where tliere is nothing in the will to 
 indicate such an intent, evidence of the declara- 
 tions of a testator are not competent, either for 
 the purpose of showing that a legacy was 
 intended as payment of a debt owing by him, 
 or to prove, in favor of his estate, an agreement 
 with the creditor to pay his debt in that man- 
 ner. Ct. App., 1873, Phillips v. McCombs, 53 N. 
 Y. (8 Sick.) 494. 
 
 637. Of third person. In an action on a 
 promissory note against the maker, wliere it ap- 
 pears that it was made for the accommodation 
 of a firm, by whom it was discounted and the 
 proceeds received, and that, upon the last day 
 of grace, it was purchased and caused to be pro- 
 tested by one member of such firm, claiming to 
 have done so as agent for the plaintiff and with 
 
316 
 
 EVIDENCE. 
 
 his money, the declarations of such partner 
 showing that lie knew that the note was so given 
 for the accommodation of tlie firm, and had 
 promised the defendant to pay it at maturity, 
 are admissible in evidence for the defendant, 
 both as being material as a part of the contro- 
 versy, and as affecting the- credibility of the 
 partner. Sup. Ct., 1875, Lancey v. Clark, 8 Hun, 
 575. 
 
 638. Of trustee. The declarations of a 
 trustee respecting the trust are not competent 
 for the purpose of establishing the same, but are 
 admissible in an action against him for an ac- 
 counting, on the question of the statute of lim- 
 itations ; as that does not begin to run until the 
 trustee has in some manner repudiated the trust. 
 Ct. App., 1874, Barker y. White, 58 N. Y. (13 
 Sick.) 204. 
 
 639. Res gestae. In an action involving the 
 validity of a bill of sale executed by a debtor to 
 his creditor, evidence of a conversation had be- 
 tween them at the time of its execution is ad- 
 missible, as part of the res gestae. N. Y. C. P., 
 1869, Britton v. Larens, 3 Daly, 22. 
 
 640. Declarations at time. In an action to 
 recover damages for Injuries alleged to have 
 been caused by the negligence of defendant's 
 servant, what the servant said at the time, tend- 
 ing to show that the accident was caused by his 
 carelessness, is admissible in evidence as part of 
 the res gestce. N. Y. Supr. Ct., 1872, Courtney y. 
 Baker, 34 N. Y. Supr. (2 J. & Sp.) 529. 
 
 641. In an action for services rendered tinder 
 a contract of hiring made by one who is alleged 
 to have been deffendant's agent, proof of the 
 declaration of such agent at the time he hired 
 the plaintiff, that he did so for the defendant, is 
 kdmissible in evidence, aa part of the res gestce, 
 if his agency la otherwlae established. Sup. Ct., 
 1875, Swart V. Livingston, 4 Hun, 267. 
 
 642. As against an assignee of property of 
 which the assignor retains possession, the acts 
 and declarations of the latter, while so in pos- 
 session, are competent as part of the res gestce. 
 Ct. App., 1872, Newlin v. Lyon, 49 N. Y. (4 Sick.) 
 661. 
 
 643. In an action on a verbal contract of sale 
 to recover the price of the goods sold, evidence 
 Is admissible on behalf of the defendant, as part 
 of the res gestce, to show that, at the time of the 
 delivery of the goods to him, he attempted to 
 communicate a message to the vendor declining 
 to receive the same, although such message was 
 never received by the latter. Ct. App., 1872, 
 Caulkins v. Hillman, 47 N. Y. (2 Sick.) 449. 
 
 644. In an action to recover back money paid 
 for grape roots, delivered under an executory 
 contract, and alleged to have been dead at the 
 time, where it appears that the plaintiff accepted 
 them from defendant's agent without examina- 
 tion, he may show that at the time of delivery 
 they were done up in bundles and covered with 
 wrappers, and that as he was about to undo and 
 examine them the defendant's agent objected on 
 account of its being a cold and windy night, say- 
 ing that if they were opened he would not be 
 responsible if they turned out not to be right, 
 and directed plaintiff what to do with them, and 
 it should all be made right ; those facts being 
 part of the res gestce, and showing a good excuse 
 for accepting the roots without examination as 
 to their condition. Sup. Ct., 1872, Stone v. Frost, 
 6 Lans. 440. 
 
 645. In an action for deceit Inducing the 
 plaintiff to enter into a contract in writing, the 
 plaintiff may show the details of the negotiations 
 which led to the signing or execution of the 
 
 writing as part of the res gestae, being the result 
 In part of the fraud practiced. Sup. Ct., 1874, 
 Indianapolis, Peru ^ Chi. R. B. Co. y.JTyng, 48 
 How. 193 ; S. C, 2 Hun, 311. 
 
 646. On a trial involving the question of un- 
 due influence upon a grantor of property, the 
 directions given by the physician, since de- 
 ceased, of such grantor on his professional visits, 
 relative to the treatment of his patient, are com- 
 petent as part of the res gestae. Ct. App., 1874, 
 Piatt V. Ptatt, 58 N. Y. (13 Sick.) 646. 
 
 647. In an action by a married woman to re- 
 cover possession of goods levied upon as the 
 property of her husband, the officer who made 
 the levy may properly be asked if he saw any- 
 body at the place at the time he went to levy ; 
 and upon his answering that he judged the 
 plaintiff's husband was in charge, the plaintiff is 
 entitled to his testimony as to what was said by 
 her at the time. N. Y. Supr. Ct., 1875, Pollock v. 
 Brennan, 39 N. Y. Supr. (7 J. & Sp.) 477. 
 
 648. In an action against a railroad company 
 for ejecting plaintiff, a passenger, from its train, 
 evidence of language used toward him by the 
 conductor who ejected him, at a different station 
 and several hours afterward, is not admissible, 
 as part of the res gestae, to show the quo animo of 
 defendant's ageut in the transaction. Com. App., 
 1872i Hamilton v. New York Central R. R. Co., 51 
 N. Y. (6 Sick.) 101. 
 
 649. In an action against a railroad company 
 for a personal injury, caused by the cars running 
 off the track at a place where a gang of men 
 were employed in relaying ties, the declaration 
 of the foreman in charge Of the gang, made 
 just before the accident, that there was sufficient 
 time to relay them be'fore the arrival of the next 
 train, is admissible in evidence against the com- 
 pany, as part of the res gestce. Sup. Ct,, 1872, 
 Matteson v. New York Cent. R. R. Co., 62 Barb. 
 364. 
 
 650. Declarations of confederates, direc- 
 tions given by them, and their conversations 
 held during tlie carrying out of the conspiracy, 
 are acts and as such parts of the res gestce, and 
 it is in the discretion of the cou;-t to admit them 
 in evidence before proof of the combination. If 
 that is clearly made out on all the evidence, the 
 order in which the proof was given is not mate- 
 rial. N. Y. Supr. Ct., 1875, Bruce v. Kelly, 39 N. 
 Y. Supr. (7 J. & Sp.) 27. 
 
 651. Receipts, given by the mate of a vessel 
 for goods received on board at the time they are 
 so received, are a part of the transaction, and 
 are evidence of the receipt of the packages, but 
 not of their contents. N. Y. Supr. Ct., 1874, 
 Sturm V. Atlantic Mut. Ins. Co., 38 N. Y. Supr. 
 (6 J. & Sp.) 282. S. P. Sturm v. Williams, id. 325. 
 
 XII. Pakol peoof to explain, contra- 
 dict, OK VAST WEITTEN INSTHUMENT8. 
 
 652. In general. Unless there be such an 
 ambiguity in the terms of a written contract as 
 to require the application of extrinsic evidence 
 to remove or explain It, such evidence is wholly 
 inadmissible. Sup. Ct,, 1873, Clark v. New York 
 Life Ins. and Trust Co., 7 Lans, 322. 
 
 653. The rule that parol testimony may not 
 be given to contradict a written contract, Is 
 appUed only in suits between the parties to the 
 instrument or their privies. Strangers to the 
 instrument, are not precluded from proving the 
 truth, however much it may contradict the writ- 
 ing. Ct. App., 1873, McMaster v. Prest. etc. of 
 Ins. Co. ofN. America, 55 N. Y.(10 Sick.) 222. 
 
 654. The rule which excludes parol evidence 
 
EVIDENCE. 
 
 317 
 
 to explain, modify or contradict written instru- 
 ments, applies not only to prior and cotempora- 
 neous ^ral declaration?, but with ec^ual force to 
 subsequent declarations. Cora. App., 1871, Mott 
 y. Richtmyer, 67 N. Y. (12 Sick.) 49. 
 
 665. In an action upon a written contract, con- 
 taining a clause which is obscure, the testimony 
 of a party thereto which is in accordance with 
 the clear portion of the writing and furnishes 
 a reasonable explanation of that clause,' will pre- 
 vail over the testimony of the other party con- 
 tradictory thereof. Ct. App., 1867, Lee v. 
 Decker, 48 How. 479. 
 
 666. Where the language of a contract is clear 
 and unambiguous, e. g., one for the sale and de- 
 livery of railroad bonds " indorsed by the State 
 of Alabama," parol evidence is not admissible 
 for the purpose of showing that those indorsed 
 in a particular form were intended. N. Y. Supr. 
 Ct., 1875, Levy v. Burgess, 38 N. Y. Supr. (6 J. & 
 Sp.)481. y y 
 
 657. Agreement after settlement. Parol 
 evidence is admissible to show an agreement 
 made immediately after a settlement between 
 the parties, that in case of a deficiency in the 
 quantity of lumber for which one of the parties 
 was allowed, he should make it good. Sup. Ct., 
 1872, Smith v. Holland, 61 Barb. 333. 
 
 668. A bill for towing a boat, receipted by 
 the party contracting to tow, and delivered to the 
 owner of the vessel towed, in advance, which 
 specifies that the towing is "at the risk of the 
 owner or master of the vessel towed," is a con- 
 tract in writing, and parol evidence to add to, 
 vary, explain or contradict it is not admis- 
 sible in an action for a breach thereof. Sup. 
 Ct., 1871, Milton v. Hudson Riv. Steamboat Co., 
 4 Lans. 76. 
 
 659. Circumstances surrounding. When 
 a transaction as evidenced by the written com- 
 munications between the parties, is not entirely 
 intelligible, evidence of the situation and relation 
 of the parties toward each other, g.nd the circum- 
 stances attending tlie negotiation is competent 
 to explain the writing. Ct. App., 1872, Field v. 
 Munson, 47 N. Y. (2 Sick.) 221. S. P., Knapp v. 
 Wame7; 67 N. Y. (12 Sick.) 668; Baldwin v. 
 Bald, 48 N. Y. (3 Sick.) 678. 
 
 660. In an action upon a contract for the sale 
 of fiax between dealers in that article, evidence 
 of the relations of the parties, the circumstances 
 under which the contract was made, and the 
 usage of the trade in respect to the terms "his 
 crop of fiax," is admissible for the purpose of 
 showing the meaning. attached to those terms by 
 the parties in their contract. Sup. Ct., 1871, 
 Goodrich v. Stevens, 6 Lans. 230. 
 
 661. It may be shown by such evidence that 
 those terms were used to express the amount of 
 the current year's production, which the seller 
 had on hand at the time, whether raised or pur- 
 chased by him. lb. 
 
 662. In an action on an insurance policy, which 
 expressly declares that only goods " not hazard- 
 ous " and "hazardous" are insured, and that 
 the keeping of " extra hazardous " or " specially 
 hazardous " goods on the premises shall avoid 
 the policy, those terms having a settled meaning, 
 evidence that the assured, having a policy in 
 another company covering stock " such as is usu- 
 ally keptln country stores," forwarded it to the 
 defendant, with a request to issue a similar 
 policy upon the same stock, and that the policy 
 in suit was sent in response to such request, is 
 inadmissible, either as proving an admission by 
 defendant that both policies were to be construed 
 alike, or that the parties intended they should 
 
 be co-extensive. Ct. App., 1871, Pindar v. Reso- 
 lute Fire Ins. Co., 47 N. Y. ( 2 Sick.) 114. 
 
 663. Neither is such evidence admissible for 
 the purpose of showing notice to the defendant 
 that the assured kept in bis store such mer- 
 chandise as was usually kept in country stores, 
 and that consequently it insured the goods- in the 
 store as it was. lb. 
 
 664. In suoh case, evidence that the assured 
 did not discover the difference in the wording of 
 the policies until after a loss, is inadmissible to 
 enlarge the liability of the insurer. lb. 
 
 665. Course of dealing. In an action upon 
 an application for marine insurance " for not to 
 exceed $10,000 in gold," to compel the delivery 
 of a policy and for a recovery thereon, — Held, 
 that parol evidence was admissible, notwith- 
 standing a clause in the policies issued by the 
 defendant company, providing that in case 
 of prior insurance the defendant should be liable 
 only for so much as the amount of such prior 
 insurance failed of covering the risk, to show 
 that by the course of dealing between the par- 
 ties and by plaintiff with other companies, de- 
 fendant knowing the same, where as in this case, 
 insurance was wanted upon a cargo the value of 
 which was unknown, such value was estimated 
 and applications made to the amount of the esti- 
 mate, and afterward, upon ascertaining the 
 actual value, the risk was apportioned, the ap- 
 plications changed, and policies issued for the 
 the corrected amounts. Ct. App., 1878, Fabbri 
 V. Phcenix Ins. Co., 55 N. Y. (10 Sick.) 129. 
 
 666. An ambiguity in an order relating to 
 the shipment of an engine, may be explained by 
 evidence of the course adopted and approved of 
 in the prior shipment of an engine under the 
 same contract. Sup. Ct., 1875, Gray v. Gannon, 
 4 Hun, 57. 
 
 667. Part not reduced to ■writing. Where 
 part only of an entire parol contract is reduced 
 to writing, in part performance, parol proof of 
 the entire contract is competent. Ct. App., 
 1874, Hope v. Balen, 68 N. Y. (13 Sick.) 380. S. P., 
 Hope V. Smith, 35N. Y. Supr. (3 J. & Sp.) 458. 
 
 668. So, also, when the writing does not show 
 the consideration or the whole of it, parol evi- 
 dence is admissible to prove it. N. Y. Supr. Ct., 
 1878, Hope v. Smith, 85 N. Y. Supr. (3 J. & Sp. 
 458. 
 
 669. An indorsement on a lease, signed by the 
 lessees only, " that the period of the lease, which 
 is unexpired on the 1st day of May, 1869, is 
 hereby cancelled," may be shown by parol to 
 have been made in pursuance of a prior oral 
 agreement between them and their landlord that 
 they should then surrender the premises, and be 
 released from the quarter's rent, endiug May 1, 
 1869. lb. 
 
 670. Where an order upon a coal company for 
 the sale and delivery of a quantity of coal, not 
 intended to embrace the whole contract, but 
 only , so much as was necessary to enable the 
 company to know how much coal to deliver, and 
 for whom, and the amount it ,8hould advance, 
 was sealed by the agent of the purchaser and 
 delivered to the owner of the vessel engaged to 
 carry the cargo, to be delivered to the coal com- 
 pany, without any specific knowledge on the 
 part of such owner as to its contents, parol evi- 
 dence is admissible to show the terms of the 
 contract respecting the carriage. Sup. Ct., 1873, 
 Fisher v. Abeel, 44 How. 432. 
 
 671. In an action to recover back the purchase- 
 money paid under a parol contract for the sale 
 of a house,, by the terras of which the vendor 
 was to execute a written contract to the same 
 
318 
 
 EVIDENCE. 
 
 effect, evidence of a conversation between the 
 parties at the time the vendor delivered to the 
 purchaser a writing purporting to be such a 
 contract, is admissible to show that it did not 
 contain all the terms of the parol contract, and 
 for that reason was not accepted. Sup. Ct., 
 1871, Hoag v. Owen, 60 Barb. 34 ; Affi'd, S. C, 
 57N. Y. (12 Sick.) 644. 
 
 672. To annex condition. Parol evidence 
 is not competent to annex a material condition 
 to the terms of a contract which the parties have 
 reduced to writing. Ct. App., 1873, Johnson v. 
 Oppenheim, 55 N. Y. (10 Sick.) 280 ; Atf'g S. C, 
 43 How. 433 ; 12 Abb. N. S. 449 ; 34 N. Y. 
 Supr. (2 J. & Sp.) 416. 
 
 673. — incidents to grant. Between grantor 
 and grantee, parol evidence is admissible to 
 show the intention of the former to make of 
 personal chattels, such as gas fixtures, a perma- 
 nent accession to the freehold. N. Y. C. P., 
 1873, Funk v. Brigaldi, 4 Daly, 359. 
 
 674. To contradict certificate. In an 
 action upon a contract, which was originally 
 void for non-compliance with law, but was, by 
 the provisions of a subsec[uent act, to become 
 binding upon the certificate of commissioners 
 appointed to investigate and determine whether 
 there was any fraud in relation to such contract 
 or the performance thereof, parol evidence is 
 admissible to show that the commissioners had 
 not investigated such contract or the perform- 
 ance of the work, and that the work had not 
 been performed, in contradiction of their certif- 
 icate. Sup. Ct., 1875, Brown v. Mayor, etc. of 
 New York, 3 Hun, 685. 
 
 675. — -receipt. An acknowledgment on an 
 insurance policy of the receipt of the annual 
 premium, is open to contradiction, like any other 
 receipt. Ct. App., 1871, Baker v. Union Mut. 
 Life Ins. Co., 43 N. Y. (4 Hand,) 283. 
 
 676. A receipt for money, though stated to be 
 in full of the debt or demand upon which it is 
 received, may be contradicted or explained by 
 parol; unless upon the evidence it is to be treat- 
 ed as an accord and satisfaction. Sup, Ct., 
 1873, Howard v. Norton, 65 Barb. 161. 
 
 677. — record. The written consents 6i tax- 
 payers to the bonding of a town in aid of a 
 railroad, with the aflSdavits of the assessors and 
 copy of the assessment roll, filed by them in the 
 oflices of the town and county clerks, showing 
 compliance with the statute, are made by the 
 statute evidence of the jurisdiction and all the 
 facts certified to, not prima facie merely, but 
 absolute and unqualified, in the nature of a 
 
 ■ record, and they cannot be disproved by parol 
 in a collateral proceeding. Sup. Ct., 1872, 
 Pierce v. Wright, 45 How. 1. S. P., Corwin v. 
 Campbell, 45 How. 9. 
 
 678. — other writing. In an action to obtain 
 a settlement of the affairs of two firms, the de- 
 fendant may show by parol that the firm, instead 
 of consisting of two partners, each entitled to 
 one-half the profits, as shown by the articles of 
 co-partnership, in reality consisted of four per- 
 sons, each entitled to one-fourth of the profits, 
 for the purpose of showing that one-half the 
 money sought to be recovered had become the 
 property of the unnamed partners. Sup. Ct., 
 1876, Flynn v. Bishop, 5 Hun, 284. 
 
 679. Where a bond recites its consideration 
 to have been the transfer and delivery by the 
 obligee to the obligor, his former partner, of the 
 
 y effects of the firm for collection and sale, such 
 recital forms a substantive part of the agree- 
 ment, and cannot, like the consideration clause 
 of an ordinary conveyance, be contradicted or 
 
 varied by parol. Ct. App., 1872, Cocks v. Barker, 
 49 N. Y. (4 Sick.) 107. 
 
 680. Although a deed recites the consideration 
 as a sum in gross and the land conveyed as so 
 many acres " more or less," thus raising an in- 
 ference that the sale was in bulk and not by 
 the acre, parol evidence is admissible to show 
 that the contrary was the fact, and that the deed 
 was accepted with a reservation of the right to 
 fix the amount of the purchase-money by a sub- 
 sequent survey, Allek, J., dissents. Ct. App., 
 1873, Murdock v. Gilchrist, 52 N. Y. (7 Sick.) 242. 
 
 681. To establish agency. Parol proof is 
 admissible to establish an agency for the pur- 
 chase of lands and to charge the alleged agent 
 with funds fraudulently obtained by him of his 
 principal for the pretended purpose of paying 
 for lands so purchased, notwithstanding the 
 writings evidencing the transaction import a sale 
 from the original owner to the agent and from 
 him in turn to the plaintiff. Ct. App., 1874, 
 Richards V. Millard, 56 N. Y. (11 Sick.) 574. 
 
 682. The rule that parol evidence wiU not be 
 received to contradict a written agreement, does 
 not prelude a party who has entered into a writ- 
 ten contract with an agent from maintaining an 
 action against the principal, upon parol proof 
 that the contract was in fact for the principal, 
 where the agency was not disclosed by the con- 
 tract and was not known to such party when 
 made, or where there was no intention to rely 
 upon the credit of the agent to the exclusion of 
 the principal. Ct. App., 1873, Coleman v. First 
 National Bank ofElmira, 53 N. Y. (8 Sick.) 388. 
 
 683. To explain ■writing. Where of two 
 writings executed at the same time and intended 
 by the parties as duplicates, one purported to 
 convey all the " land and timber " on a certain 
 described tract, and the other all the " bark and 
 timber " thereon, but it was apparent from the 
 scope and tenor of the contract, aside from this 
 clause, that only the bark, and not the land, was 
 intended ; — He^d, that evidence was inadmissible 
 to show that the price paid was equivalent to 
 the value of both land and timber. Com. App., 
 1872, Morss V. Salisbury, 48 N. Y. (3 Sick.) 636. 
 
 684. Where a grant describes the lands by 
 definite and distinct boundaries,, so that they 
 may readily be located, declarations of a party 
 in ejectment respecting such boundaries, are 
 not admissible to vary the terms or aid in the 
 interpretation of the deed. Ct. App., 1871, Drem 
 V. Swift, 46 N. Y. (1 Sick.) 204. 
 
 686. — receipt. Parol evidence is admissible 
 to explain a receipt in full, and show its consid- 
 eration and the payment thereof, in order to 
 rebut testimony tending to show that such con- 
 sideration lias not been paid. Gt. App., 1874, 
 Foster v. Newbrough, 58 N. Y. (13 Sick.) 481. 
 
 686. — terms used. Parol evidence is not 
 admissible to explain the meaning of terms used 
 in a written contract, which have already ac- 
 quired a clear and accepted meaning and are 
 plain and unambiguous. N. Y. Supr. Ct., 1870, 
 Neffr. Friedman, 2 Sweeny, 607. 
 
 687. Where the language of a contract is 
 ambiguous or obscure, facts existing at the time 
 of making it may properly be considered for the 
 purpose of interpreting such language ; but no 
 evidence of the language employed by the parties 
 in making the contract can be resorted to except 
 that which is furnished by the writing itself. 
 Ct. App., 1872, Dent v. North American Steam- 
 ship Co., 49 N. Y. (4 Sick.) 390. 
 
 688. Words, or forms of expression which are 
 not of universal use, but purely local or techni- 
 cal, those which have two meanings, one com- 
 
EVIDENCE. 
 
 319 
 
 mon and umveTsal, and the other peculiar, tech- 
 nical or local, and characters, marks or technical 
 terms used in a^ particular business, unintelli- 
 gible to persons unacquainted with that business, 
 occurring in a written Instrument, may be ex- 
 plained by parol evidence of facts tending to 
 show in what sense they were used, provided 
 the explanation is consistent witVi the terms of 
 the instrument. Ct. App., 1873, Collender v. 
 Dinsmore, 55 N. Y. (10 Sick.) 200 ; Rev'g S. C, 
 64 Barb. 457. 
 
 G89. If the.languageused is explicit, it cannot 
 be varied or contradicted by parol evidence, or 
 a meaning given to the contract different from 
 that called for by its terms. Custom or usage is 
 sometimes admissible to add to or explain, but 
 never to vary or contradict, the terms of an in- 
 strument, or the fair and legal import of a con- 
 tract, lb. 
 
 69Q.V Where goods Tjere delivered at New York 
 to an express company whose line terminated at 
 Boston, but connected there with Turner's Ex- 
 press, marked " A. King, Clifton House, Wind- 
 sor, N. S., C. O. D. $375, from Turner's Ex- 
 press," — Held, that it was competent to aliow by 
 parol the meaning of the letters " C. O. D." but 
 the remainder of the direction being in words 
 ordinary and familiar, and not of technical use 
 could not be explained or varied by parol, or 
 contradicted by a custom or usage inconsistent 
 therewith. lb. 
 
 691. Parol evidence is admissible, in an action 
 upon a written instrument, to show what a word, 
 letter or figure in such instrument claimed to be 
 doubtful, was intended to be : and for that pur- 
 pose, the testimony of the person who drew the 
 writing is admissible to show what was intended 
 and also to show that it was read as such to the 
 person who executed it, at the time of such ex- 
 ecution. Sup. Ct., 1871, Arthur v. Roberts, 60 
 Barb. 580. 
 
 692. In an action upon an insurance policy, 
 founded upon an appUcation for insurance on 
 goods " valued at invoice and 5 per cent.," parol 
 evidence is admissible to show in what manner 
 those words are used in the business of under- 
 writing, N. Y. Supr. Ct., 1874, Sturm v. Wil- 
 liams, 38 N. Y. Supr. (6 J. & Sp.) 325. S. P., 
 Funke v. Orient Mut. Ins. Co., id. 349. 
 
 693. In an action upon a contract which pro- 
 vides for excavating earth at one price and rock 
 at another price, and work not therein classified 
 at cost with fifteen per cent, added, evidence is 
 admissible to show that " hard pan " is neither 
 earth nor rock. Sup. Ct., 1874, Dickinson v. 
 Water Commissioners of Poughlceepsie, 2 Hun, 615. 
 
 694. Where a bill of lading introduced in evi- 
 dence contained the words "quantity guaran- 
 teed," — Held, that the admission of evidence 
 that this phrase, according to the custom of 
 business, meant that the bill was conclusive of 
 the amount or quantity of goods to be delivered 
 by the carrier, was no error ; that, if this was 
 not the plain legal construction of tlie words, 
 then they might be regarded as a technical ex- 
 pression, the meaning of which was known only 
 to persons engaged in the particular business, 
 wliose testimony was admissible to explain it. 
 Cora. App., 1873, Bissel v. Campbell, 54 N. Y. (9 
 Sick.) 353. 
 
 695. Tlie writer of a letter on behalf of a party 
 to an action cannot be permitted to testify as to 
 tlie sense in which he used an important word 
 occurring in such letter. N. Y. Supr. Ct., 1874, 
 Harrison v. Kirke, 38 N. Y. Supr. (6 J. & Sp.) 
 396. 
 
 696. — accounts. A defendant who claims 
 
 that goods with which he is sought to be charged 
 were consigned to him on commission, and who 
 has testified, on being questioned by plaintiff as 
 to any entries as to commissions in his books, 
 that there are no entries of commissions as 
 such, may properly be permitted, on re-examin- 
 ation by his own counsel, to explain liow the 
 plaintiff's account is kept, and how the com- 
 missions paid by the plaintiff appeared therein, 
 lb. 
 
 697. To fix date. The date of a written in- 
 strument is merely presumptive evidence of the 
 time when it was actually executed, and may 
 be contradicted by parol whenever fraud or mis- 
 take is alleged. Sup. Ct., 1875, Oermania Bank 
 of New York City v. Distler, 4 Hun, 633. 
 
 698. A mistake in the date of a promissory 
 note may thus be shown as well by the indorsee 
 as by the payee. lb. 
 
 699. A written notice of the dissolution of a 
 partnership signed by the members of the firm, 
 and a formal transfer of their property to a third 
 person, both of which state the dissolution to 
 have been on the day of their date, are not con- 
 clusive on that point ; but parol testimony is 
 admissible to show that it took place at an ear- 
 lier date. Ct. App., 1871, Emerson v. Parsons, 
 46 N. Y. (1 Sick.) 560; Aff'g S. C, 2 Sweeny, 
 447. 
 
 700. To identify. Parol evidence is admis- 
 sible in an action on a policy of marine insurance 
 of a vessel described as " the bark Empress, or 
 by whatever other name or names the vessel is 
 or shall he called," to show that the name of the 
 vessel had been changed to the " St. Mary," and 
 identify it with one bearing that name which 
 was lost. N. Y. C. P., Hughes v. Mercantile Mut. 
 Ins. Co., 44 How. 351. 
 
 701. If a policy of insurance, covering " hay 
 and grain " in a barn, does not clearly specify 
 in which of the two barns of the owner it was 
 located, so that it can be determined therefrom 
 whether it was the property destroyed, parol evi- 
 dence is admissible to explain the ambiguity. 
 Ct. App., 1875, Bowman v. Agricultural Ins. Co., 
 59 N. Y. (14 Sick.) 521. 
 
 702. To Unlit effect of release. In an ac- 
 tion to foreclose a mortgage, where the mortgagor 
 sets up as a defense a release executed to him by 
 the mortgagee purporting to release him from 
 all indebtedness due from him to the mortgagee, 
 eitlier on book-account, note of hand, or in any 
 other way, the plaintiff may introduce evidence 
 to show wliat took place between the parties at 
 the time of tlie delivery of the release ; that the 
 defendant knew at that time that the mortgage 
 was then owned by another party ; and tliat the 
 delivery of the release depended on a condition 
 wliich had not happened. Sup. Ct., 1874, Van 
 Bokkelen v. Taylor, 2 Hun, 138; Bev'd by Ct. 
 App. 
 
 703. To locate way reserved. Where a 
 right of way is reserved in a deed, but its exact 
 location and width are left undefined, parol evi- 
 dence is admissible to show acts and declara- 
 tions of the parties subsequent to tlie deed, in- 
 dicating a practical location thereof; but evi- 
 dence of prior agreements between them as to 
 such location is not admissible, because the am- 
 biguity is patent, and because all prior negotia- 
 tions are merged in the deed. Sup. Ct., 1875, 
 Crocker v. Crocker, 5 Hun, 587. 
 
 704. To show agreement as to payment. 
 In an action by tlie assignee of a mortgage, as- 
 signed as collateral security, to foreclose such 
 mortgage, parol evidence is admissible to show 
 an agreetaent that the indebtedness for which it 
 
320 
 
 EVIDENCE. 
 
 was collateral should be paid in produce, and 
 that payments had been so made. Sup. Ct., 
 
 1871, Hildebrant v. Crawford, 6 Lans. 502. 
 
 705. In an action upon a memorandum check, 
 evidence of a cotemporaneous oral agreement 
 that a tliird person should pay it is not admis- 
 sible for the purpose of qualifying the under- 
 taking of the maker. Brooklyn City Ct., 1872, 
 Tumbull V. Osborne, 12 Abb. N. S. 200. 
 
 706. Wliere one having merely a contract for 
 the purcliase of lands contracted to sell them to 
 another, agreeing by the same writing to pay 
 all taxes to a certain date, and the latter ac- 
 cepted a deed from his vendor, — Held, in an ac- 
 tion by the grantee to recover unpaid taxes, 
 that it was not competent to show by parol that 
 defendant's vendor had agreed to pay such 
 taxes, and that plaintiff had agreed, both before 
 and after and at tlie time of signing the contract 
 in suit, to accept and look to the latter. Ct. App., 
 
 1872, Budd V. Sinclair, 50 N. Y. (5 Sick.) 663. 
 
 707. — construotioa by parties. Evidence 
 of the practical construction of a grant by the 
 parties to it, is admissible only where the lan- 
 guage is indefinite or ambiguous. Ct. App., 
 
 1873, Hill V. Priestly, 52 N. T. (7 Sick.) 635. 
 
 708. — fraud. A satisfaction piece executed 
 by an assignee of a judgment, and an execution 
 issued by him, by which a judgment is claimed 
 to have been satisfied and discharged, may be 
 impeached and shown to be fraudulent and in- 
 valid by parol, in an action brought upon such 
 judgment. S\xp.Ct.,\%lb,Mandeville y. Reynolds, 
 5 Hun, 338. 
 
 709. — intent. In an action involving the 
 question whetlier a deed conveyed an easement 
 as appurtenant, evidence of the intention of the 
 parties that the grantee should not acquire the 
 easement, cannot overcome the effect of the 
 deeds themselves, from which, and the situation 
 of the premises, and the acts of the parties, 
 their rights must be ascertained. Sup. Ct., 1871, 
 Voorhees v. Burchard, Lans. 176. 
 
 710. Parol evidence is adbiissible to show that 
 a certificate of deposit of money in a bank, was 
 intended as a receipt or voucher for money 
 paid by the holder upon obligations held by 
 the bank and guaranteed by him, for the pur- 
 pose of establishing his title as against the 
 bank, to such obligations. Com. App., 1872, 
 Hotchkiss V. Moslier, 48 N. Y. (3 Sick.) 478. 
 
 711. Parol evidence is admissible to show that 
 a writing purporting to state the terms of a con- 
 tract, was executed for a specific purpose, and 
 that purpose being accomplished, was of no ef- 
 fect in changing the contract previously made. 
 Ct. App., 1875, Grierson v. Mason, 60 N. Y. (15 
 
 • Sick.) 394; Aff'g S. C, 1 Hun, 113. 
 
 712. The presumption arising from the in- 
 dorsement of a promissory note in blank by a 
 third party, before its delivery to the payee, 
 that he intended simply to become liable as sec- 
 ond indorser, may be rebutted by parol proof 
 that he so indorsed it to give credit to the 
 payee. Ct. App., 1875, Coulter v. Richmond, 59 
 N. Y. (14 Sick.) 478. 
 
 713. Proof that the maker for several years 
 successively borrowed U. S. bonds of the payee, 
 giving each year his own note for the amount 
 signed by his brother as surety, and finally 
 bought the same bonds giving his own note in- 
 dorsed by his brother therefor, the other notes 
 having been taken up, is suflScient to sustain a 
 finding that the indorsement was so made to 
 give credit to the maker with the payee, and 
 that the indorser was liable thereon to the 
 payee. lb. 
 
 714. — mistake. A carrier's receipt contained 
 the following stipulation : " All damage caused 
 by the boat or carrier or deficieqpy of cargo from 
 quantity, as herein specified, to be paid by the 
 carrier and deducted from freight," — Held, that 
 the carrier was not concluded by the amount 
 specified, but might show by parol that he ac- 
 tually received a less quantity, and that there 
 was a mistake in the bill of lading. Com. App., 
 1872, Abbe v. Eaton, 50 N. Y. (6 Sick.) 410. 
 
 715. Parol evidence is not admissible in an 
 action of ejectment, in support of the equitable 
 defense of a mistake in the deed under which 
 plaintiff claims, to show what land an inter- 
 mediate grantor supposed he received under his 
 deed and what he intended to convey. Except 
 in certain cases and for certain specified pur- 
 poses, parol evidence is no more admissible m 
 equity than at law, for the mere purpose of 
 contradicting or varying the effect of an instru- 
 ment in writing. Sup. Ct., 1871, Hides v. Shep- 
 pard, 4 Lans. 335. 
 
 716. Where a deed is introduced in evidence 
 by a stranger to prove an admission against one 
 of the parties, secondary evidence is admissible 
 to show that the part claimed as an admission 
 was inserted by mistake. Com. App., 1872, 
 Pope V. O'Hara, 48 N. Y. (3 Sick.) 446. 
 
 717. In an action upon an insurance policy, 
 parol evidence is admissible on the part of the 
 defendant that a portion of the description of 
 the location of the insured property was wrong, 
 and that the mistake was harmful to the de- 
 fendant, and therefore could not be rejected. 
 Ct. App., 1873, Bryee v. Lorillard Fire Ins. Co., 
 46 How. 498 ; 55 N. Y. (10 Sick.) 240. 
 
 718. — official act. Where a bank cashier 
 gives a receipt for money left with him at the 
 bank for the purchase of government bonds, 
 signed in his own name without the addition 
 " cashier," parol evidence is admissible to show 
 whether it was a private or an official act. Sup. 
 Ct., 1869, Caldwell v. National Mohawk Valley 
 Bank, 64 Barb. 333. 
 
 719. — official character. For the purpose 
 of showing that the person, whose act in seizing 
 and selling property as school district collector 
 is complained of, was such officer de facto, parol 
 proof that he executed a bond as such, and that 
 the same was approved by the trustee, is admis- 
 sible. Sup. Ct., Sp. T., 1871, Hamlin v. Dingman, 
 41 How. 132. 
 
 720. A party justifying under the acts of such 
 de facto officer may prove his appointment by 
 parol, although the statute requires it to be 
 made by writing. S. C, 5 Lans. 61. 
 
 721. — cwnership of note. It is competent 
 to show by parol that a note taken by an attor- 
 ney from a debtor of his client, but made pay- 
 able to himself, was so drawn for convenience, 
 and not because it was to become his property as 
 payment for services rendered to his client. 
 Sup. Ct., 1873, Stebbins v. Brown, 65 Barb. 274. 
 
 722. — prior negotiations. Evidence of the 
 negotiations for a loan cannot be received to 
 explain, vary or contradict the written agree- 
 ment finally entered into. Ct. App., 1870, 
 Browne v. Vredenburgh, 43 N. Y. (4 Hand,) 195. 
 
 723. The bill of lading, receipt or other 
 voucher of a carrier, given and accepted at tlie 
 time of the delivery of the goods to him, is that 
 by which alone the rights of the parties are to 
 be determined ; and evidence of prior parol ne- 
 gotiations is inadmissible to alter or vary its 
 terms. Ct. App., 1872, Long v. NewYork Cent. 
 R. R. Co., 50 N. Y. (5 Sick.) 76. 
 
 724. In an action against a carrier for dam- 
 
EVIDENCE. 
 
 321 
 
 ages to grain carried by him by ocean between 
 points where there were two customary or usual 
 routes, one by canal and the otlier by ocean, 
 under a bill of lading which did not restrict the 
 carrier to either route, the plaintiff cannot be 
 permitted to prove by parol an agreement, made 
 before signing the bill of lading, to carry by the 
 canal route. Com. App., 1873, White v. Ashton, 
 51 N. T. (6 Sick.) 280. 
 
 725. In an action upon a written agreement to 
 pay a fixed sum as rent for a stone quarry, parol 
 evidence is not admissible to show that by the 
 previous oral negotiations the sum to be paid 
 was much less, in the absence of fraud Or mis- 
 take. Sup. Ct., 1872, Delemater v. Busk, 46 How. 
 .382 ; S. C, 63 Barb. 168. 
 
 726. Where it appears that the larger sum 
 was inserted entirely for the purpose of obtain- 
 ing a portion of that sum from a third party, 
 the fraud would be a sufficient reason for ex- 
 cluding the evidence. lb. 
 
 727. The only written evidence of the transfer 
 of a chose in action being a letter from the pur- 
 cliaser to the banker of his assignor, directing 
 him to transfer to the latter the amount of the- 
 purchase-money and charge it to himself, in- 
 closed in another from such assignor authorizing 
 the transfer of such chose in action in consider- 
 ation that his account be credited with the pur- 
 chase-money, it is not competent to show a 
 prior parol agreement for the transfer and ac- 
 ceptance thereof, in aid of the construction of 
 the letters ; nor, where that fact was not at the 
 time known to the assignor, that the' banker had 
 previously agreed by parol to lend the purchaser 
 the money and place it to the credit of the for- 
 mer. Ct. App., 1872, VonKeller v. Shulting, 50 
 N. Y. (5 Sick.) 108. 
 
 728. Co-temporaneous parol agree- 
 ment. In an action involving the right to cut 
 and convert timber, evidence Is not admissible 
 to show that at the time a written contract was 
 entered into for the sale to and cutting by the 
 defendant of a specified quantity, it was verbal- 
 ly agreed that he might cut more than that 
 quantity. Sup. Ct., 1874, Veeder v. Cooky, 2 
 Hun, 74. 
 
 729. Where a consignor of goods received 
 from the railroad company to which they were 
 delivered for transportation to a point beyond 
 its route a written receipt, stipulating, among 
 other tilings, that goods consigned to places be- 
 yond the termini of its road would be forwarded 
 by a carrier or freightman willing to receive 
 the same, unconditionally, for transportation, — 
 Held, that tlie obligation was general to forward 
 in the usual course of business, and that evi- 
 dence of a parol direction at the time to forward 
 by rail only was not competent, being in coptra- 
 diction of the written agreement. Ct. App., 
 1874, Binekley v. New York Central and Hudson 
 Riv. R. R. Co., 56 N. Y. (11 Sick.) 429. 
 
 730. Parol evidence is not admissible to show 
 that, by verbal understanding at the time a 
 written permit was granted to a person whose 
 life was insured to go to a place prohibited in 
 the policy, the term " epidemics " as used there- 
 in was to include yellow fever, whether prevail- 
 ing epidemically or not, or to show that yellow 
 fever is properly classified in medical science as 
 an epidemic. N. Y. Supr. Ct., 1873, Pohalaski v. 
 Mut. Life Ins. Co. of New York, 45 How. 504 ; 
 S. C, 36 N. Y. Supr. (4 J. & Sp.) 234. 
 
 731. To show to be an escrovr. A bond 
 delivered to the obligee or his agent cannot be 
 shown by parol to be an escrow. Ct. App., 1872, 
 Cocks V. Barker, 49 N. Y. (4 Sick.) 107. 
 
 21 
 
 732. — merely security. Any agreement, 
 though absolute on its face, may be shown by 
 parol to be a security only. N. Y. Supr. Ct., 
 1869, Fan Pelt v. Otter, 2 Sweeny, 202. S. P., 
 Kelly v. Ferguson, 46 How. 411 ; Anthony v. Atkin- 
 son, 2 Sweeny, 228 ; McMahon v. Macy, 51 N. Y. 
 (6 SiekJ 155. 
 
 783. In an action by the general assignee of 
 an insolvent, under the act of 1860, to recover 
 property conveyed by him, parol evidence is 
 admissible to show that a bill of sale executed 
 by him, under which the defenda&ts claim, was 
 intended to operate as an assignment for the 
 benefit of creditors with preferences. N. Y. C. 
 P., 1869, Britton v. Lorens, 8 Daly, 22 ; AfE'd, 45 
 N. Y. (6 Hand,) 51. 
 
 734. Parol evidence is admissible in an action 
 for forcible entry, where the defendant justifies 
 as owner of the premises, to show that an as- 
 signment of a contract for the sale of the prem- 
 ises and of plaintiff's interest therein to defend- 
 ant, under which he has acquired title, was made 
 as security for the money advanced by defend- 
 ant to plaiintiff to complete the piirehasfe. Sup. 
 Ct., 1871, Robinson v. McManus, 4 Lans. 380. 
 
 735. Parol evidence is admissible to show that 
 a warranty deed, absolute on its face, was given 
 as a security for a specific sum of money, in the 
 nature of a mortgage. Ct. App., 1867, Van 
 Dusen v. Worrell, 36 How. 286. Such proof is 
 admissible in equity, and it is not necessary, in 
 order to render it admissible, to show that it was 
 so given through fraud or mistake. Sup. Ct., 
 1872, Brown v. Clifford, 7 Lans. 46. 
 
 736. For that purpose it may be shown, that 
 an agreement by the grantee to convey the 
 premises to a third party, on his paying a speci- 
 fied sum, was intended as a defeasance for the 
 benefit of the grantor ; and the want of any 
 personal covenant therein to pay the money 
 loaned is not conclusive evidence that the con- 
 veyance was not intended as a mortgage., Ct. 
 App., 1871, Horn v. Keteltas, 42 How. 138 : 46 
 N. Y. (1 Sick.) 605. 
 
 737. — sale of land. An agreement for the 
 sale of a farm may be shown by parol, although 
 a bond, mortgage and note were given in pur- 
 suance thereof, since such instruments do not 
 express the agreement. Sup. Ct., 1874, Smith v. 
 Sergent, 2 Hun, 107. 
 
 738. — to v^hom made. Parol evidence is 
 admissible to show that, although the bill of sale 
 of property was given to one person, the sale 
 was in fact made to another. Sup. Ct., 1875, Mc- 
 Arthur V. Soule, 5 Hun, 63. 
 
 739. — terms of sale. Where a contract is 
 first concluded by parol, and a paper is after- 
 ward drawn up, not as containing the terms of 
 tlie contract, but as a mere memorandum or bill 
 of parcels, parol evidence is admissible to show 
 the actual tei-ms of the sale, and that there was 
 a warranty, though it does not appear in the 
 memorandum or receipt. N. Y. Supr. Ct., 1874, 
 Cassidy v. Begoden, 38 N. Y. Supr. (6 J. & Sp.) 
 180. 
 
 740. Thus, where a broker sells teas by sam- 
 ple, and makes an entry of the sale and de- 
 livers a copy of it not stating a warranty, or 
 showing that the sale was by sample, parol evi- 
 dence is admissible to show the custom of the 
 trade, and that the sale was by sample. lb. 
 
 741. Where a sale was made by parol with 
 warranty, of goods exceeding $50 in value, the 
 exact amount not being ascertained at the 
 time, such sale becomes executed upon delivery 
 and acceptance of the goods ; and parol evidence 
 may be given to establish the warranty, not- 
 
322 
 
 EVIDENCE. 
 
 withstanding a bill of sale, transmitted by the 
 vendor at the time of shipping and received by 
 the vendee, is silent as to such warranty. Com. 
 App., 1870, Foot V. Bentloj, 44 N. Y. (5 Hand,) 
 166. 
 
 742. — time for delivery. If contracts for 
 the sale and delivery of goods are clear and un- 
 ambiguous, but silent in respect to the time of 
 delivery, that fact does not render parol evidence 
 that the parties intended or agreed upon a time 
 different from that vphich the law would imply 
 admissible. N. Y. Supr. Ct., 1873, White v. Tal- 
 mage, 35 N. Y. Supr. (3 J. & Sp.) 223. 
 
 743. — trust. Where a party takes an ab- 
 solute conveyance of real property, at the re- 
 quest and for the benefit of another, who at the 
 time had an interest therein to be protected, he 
 will be deemed the trustee of the party for 
 whom he undertook the purchase, and the equita- 
 ble right of the latter may be established by 
 parol. Sup. Ct., 1874, Church v. Kidd, 3 Hun, 
 254. 
 
 744. — unauthorized attestation. The 
 signature of a person as a witness to a written 
 instrument is only prima facie evidence that he 
 was called in as a witness by the parties, and the 
 presumption arising from it may be rebutted by 
 parol testimony ; the object thereof being, not to 
 contradict or vary the agreement, but merely to 
 show that its execution was not attested in a 
 particular way. Sup. Ct., 1868, Sherwood v. 
 Pratt, 63 Barb. 137. 
 
 745. — waiver. Parol evidence is admissi- 
 ble to show facts constituting a waiver of condi- 
 tions in a policy of insurance, since it does not 
 contradict the contract, but merely show a 
 modification of some of its terms. Sup. Ct., 
 1872, Pechner v. Phoenix Ins. Co., 6 Lans. 411. 
 S. P., Carrol v. Charter Oak Ins. Co., 10 Abb. 
 N. S. 166. 
 
 746. — -want or failure of consideration. 
 In an action upon a promissory note, want or 
 failure of consideration for it may be shown by 
 parol. N. Y. Supr. Ct., 1872, Sickles v. Gillies, 35 
 N. Y. Supr. (3 J. & Sp.) 14. 
 
 747. Thus, it may be shown that such note 
 was given to the payees as mere agents for the 
 party loaning or depositing money with the 
 maker, to be paid to them if required before the 
 occurrence of a certain event, and that the 
 balance not called for by the payees before it 
 occurred has since been paid over to the prin- 
 cipal, lb. 
 
 748. In an action against the maker and in- 
 dorser of a promissory note, the latter may show 
 by parol that he was induced to indorse by the 
 promise of the payees to him that they would 
 discontinue an action commenced against the 
 maker, but that tliey violated such agreement, 
 caused the failure of the maker and thereby 
 injured the indorser. Ct, App., 1875, Bookstaver 
 V. Jayne, 60 N. Y. (15 Sick.) 146. 
 
 . 749. — -what adjudicated on. When a 
 former arbitration and award is relied upon as a 
 bar to a suit, the plaintiff may be permitted to 
 show that he endeavored to bring the cause of 
 action on which the suit is founded before the 
 arbitrator, but was prevented from so doing by 
 the objection of the defendant and the refusal of 
 the arbitrator to admit the evidence offered by 
 him. Sup. Ct, 1873, Morss v. Osborn, 64 Barb. 
 543. 
 
 750. In a second suit between the same parties, 
 parol evidence is admissible to show that the 
 demand sued therein was not recovered for in 
 the first action, and the reason why it was not ; 
 and for that purpose, the testimony of a juror 
 
 in the former suit may properly be received. 
 Sup. Ct., 1873, Siarcellus v. Countryman, 65 Barb. 
 201. 
 
 751. In an action for the conversion of a quan- 
 tity of wheat, which the defendant, having ob- 
 tained possession of land leased on shares as 
 purchaser under a contract therefor, had taken 
 as the share of his vendor and converted to his 
 own use, the defendant may show by parol, that 
 in an ejectment suit by the plaintiff against him 
 proof of the value of the wheat so taken by the 
 defendant was given and submitted to the jury, 
 and the value thereof recovered by plaintiff. 
 Ct. App., 1874, Pierce v. Tuttle, 58 N, Y. (13 Sick.) 
 660. 
 
 752. Where the judgment record in a former 
 action of ejectment does not sufficiently describe 
 the land in controversy, a party seeking to avail 
 himself of the former recovery in a subsequent 
 action involving the title to the same premises, 
 may show by parol or otherwise what premises 
 were actually the subject of the litigation and 
 determination in such former action. Sup. Ct., 
 1871, Frantz v. Ireland, 4 Lans. 278. 
 
 753. Where, in order to prove a failure of title 
 to chattels, by reason of violations, by the ven- 
 dor, of the excise laws, resulting in a forfeiture, 
 a judgment record is introduced, of the seizure 
 and condemnation, which does not disclose the 
 time or times at which the offences were com- 
 mitted, extrinsic evidence of those facts is ad- 
 missible in aid of the record. Ct. App., 1873, 
 McKnight V. Devlin, 52 N. Y. (7 Sick.) 399. 
 
 754. To vary note. A note given to a 
 mutual insurance company, though in terms for 
 a premium, may be shown by parol to be a stock 
 note. Ct. App., 1873, Jackson v. Van Slyke, 52 
 N. Y. (7 Sick.) 645. 
 
 755. Parol evidence is not admissible in an 
 action upon a joint and several promissory note, 
 to show that one of the makers signed only as 
 surety for the other. Sup. Ct., 1872, Campbell 
 V. Tate, 7 Lans. 370. S. P., Benjamin v. Arnold, 
 2 Hun, 447. 
 
 XIII. CUSIOU. USAOE. 
 
 756. How proved. A usage must be 
 proved by evidence of facts, and not by mere 
 speculative opinions of persons who never have 
 had any practical experience in respect to it. 
 It must also be shown to be established, known, 
 certain, uniform and reasonable. N. Y. Supr. 
 Ct., 1871, Willis V. TibbaU, 33 N. Y. Supr. (1 J 
 & Sp.) 220. 
 
 757. 'When admissible. Evidence of usage 
 or custom is inadmissible to contradict or vary 
 the plain and express terms of a contract. Com. 
 App., 1871, Bradl&i v. Wheeler, 44 N. Y. (5 
 Hand,) 495 ; Aff'g S. C, 4 Rob. 18. 
 
 758. Evidence of an express agreement that 
 absences should be deducted from charges for 
 board, cannot be met or disposed of by proof of 
 a custom of hotels not to allow such deduc- 
 tions. Sup. Ct., 1873, Stebbins v. Brown, 65 
 Barb. 274. 
 
 759. In an action on a contract, where both 
 parties testify to a special contract, the defend- 
 ants cannot be permitted to show their custom 
 in respect to making such contracts, or their 
 understanding that they contracted with plaintiff 
 with reference thereto. Ct. App., 1875, Holmes 
 V. Pettingill, 60 N. Y. (15 Sick.) 646 ; Aff'g 
 S. C, 1 Hun, 316. 
 
 760. In an action to recover for services 
 rendered by the plaintiff as a canvasser for de- 
 fendant's house, evidence of a custom of such 
 
EVIDENCE. 
 
 323 
 
 house in respect to its dealings with canvassers 
 is inadmissible. lb. 
 
 761. Evidence may be given of a custom or 
 usage in explanation or application of particular 
 words or phrases, and to aid in the interpreta- 
 tion of the contract, but not to derogate from 
 the rights of the parties, or to import into the 
 contract new terms and conditions, or vary the 
 legal effect of the transaction. Ct. App, 1873, 
 Lawrence v. Maxwell, 68 N, Y. (8 Sick.) 19 ; 
 Affi'g S. C, 6 Lans. 469 ; 64 Barb. 102. 
 
 762. A usage of the trade in which the con- 
 tract sued on is made, may be shown to explain 
 the meaning of such contract, but not to con- 
 tradict its plain terms. Sup. Ct., 1874,^aAer v. 
 Squier, 1 Hun, 448. 
 
 763. Thus, the meaning of the terms, " Kurtz 
 forty-eight to fifty per cent, carbonated soda 
 ash," as used in a contract, may be explained 
 by proof of a custom in using them to express 
 soda ash manufactured by one Kurtz, contain- 
 ing at least forty-eight per cent, of alkali, lb. 
 
 764. The usage of a particular trade may 
 sometimes be proved, with the view to raise the 
 presumption that the parties contracted with 
 knowledge of and reference to it, so that it 
 entered into and became part of the contract ; 
 and in such a ease, it must be shown that the 
 party against whom the usage is set up had 
 notice of it at the time of making the contract, 
 or that it has been so long continued, universal 
 and notorious that all persons may be presumed 
 to have had notice af it. Sup. Ct., 1872, Wadley 
 V. Davis, 63 Barb. 500. 
 
 765. In an action upon a contract for plaster- 
 ing a house at so much per square yard, evi- 
 dence is admissible to show a universal usage 
 among plasterers at the place where the work 
 was done, to calculate the whole surface without 
 deduction for openings, &c., in the wall in measur- 
 ing the number of yards. Ct. App., 1872, Walls 
 V. Bailey, 49 N. Y. (4 Sick.) 464. 
 
 766. Betw^een the parties. Where the 
 seller of goods acts as agent for the purchaser in 
 shipping them by a common carrier, in an 
 action by the purciiaser for their loss by fire 
 the carrier may show the usual course of dealing 
 between the seller and himself as to taking pre- 
 liminary receipts and afterward taking bills of 
 lading limiting the liability of such carrier as to 
 loss by fire, which usage was followed in the 
 case in suit, such testimony being necessary to 
 disclose the actual contract between the parties. 
 Ct. App., 1874, Shelton r. Merchants Dispatch 
 Trans. Co., 48 How. 257. 
 
 767. In an action against a marine insurance 
 company to recover for a loss upon a contract of 
 insurance evidenced only by a written applica- 
 tion for insurance for an indefinite sura, 
 marked " binding," by the company, evidence 
 is admissible to show the existence of a custom 
 or usage of business between the plaintiff and 
 certain insurance companies, that applications 
 might be made in that form for insurance on 
 property the actual value of which was not 
 known, the aggregate not to exceed the sup- 
 posed value thereof, which applications should 
 be received and made binding on the respective 
 companies, and when the actual value should 
 be ascertained, they should issue policies in pro- 
 portionate amounts, to be then determined and 
 fixed, in order to establish the contract made by 
 an application so marked " binding," and the 
 liability of the company under it. Sup. Ct., 
 1872, Fabbriv. Mercantile Mut. Ins. Co., 6 Lans. 
 446 ; S. C, 64 Barb. 85. 
 
 768. In an action upon a merchant's account. 
 
 proof of his custom as to charging interest,.pre- 
 viously communicated to and acted on by the 
 customer is admissible ; but the time when 
 such custom was communicated to him, and the 
 manner in which he had conformed to it, should 
 be shown, especially when it had become nearly 
 outlawed before suit. Sup. Ct., 1872, Green v. 
 Disbrow, 7 Lans. 381. 
 
 769. Conflicting •with la-w. A custom 
 which conflicts with an express law, such as one 
 to allow supervisors $5 per day for services on 
 committees, cannot be admitted in evidence in 
 an action for such services. Sup. Ct., 1874, 
 Board of Supervisors of Richmond Co. v. Van 
 Clief, 1 Hun, 454 ; Affi'd, 60 N. Y. (15 Sick.) 
 645. 
 
 770. Evidence of a custom, that, in the ab- 
 sence of a special contract, an agent who pro- 
 cures insurance for his principal is entitled to 
 the insurance scrip issued thereon, rather than 
 the principal himself, is inadmissible, because 
 tending to overrule the principles of law ap- 
 plicable to the case. N. Y. Supr. Ct., 1870, 
 Fabbri v. Kalbfleisch, 2 Sweeny, 252. 
 
 771. Where the legal effect of an agreement 
 for the sale of sheep, as established by the evi- 
 dence, is to vest the title to the sheep and 
 the wool upon them in the vendee, it is not 
 competent to show a custom at the place of the 
 sale, that the wool of sheep sold under the cir- 
 cumstances disclosed does not go to the pur- 
 chaser. Com. App., 1872, Groat v. Gile, 51 
 N. Y. (6 Sick.) 431. 
 
 772. Evidence of a usage of trade not to con- 
 sider an estimate of the cost of work to be done, 
 or given by one who proposes to do it at such esti- 
 mate, binding upon him, or of a usage to have a 
 separate and distinct contract for all wprk done, 
 or of a usage as to the effect of such estimate, is 
 not admissible in an action upon a contract 
 founded on such estimate, to alter or limit the 
 legal effect thereof. N. Y. Supr. Ct., 1874, 
 Dutch V. Harrison, 37 N. Y. Supr. (5 J. & Sp.) 306. 
 
 773. Evidence of a custom or usage that coast 
 pilots shall have the absolute and supreme con- 
 trol and management of vessels on which they 
 are employed on coasting voyages, superior to 
 that of the master of such vessels, is not admis- 
 sible in an action to recover damages from the 
 charterer for the loss of such a vessel through 
 the negligence or want of skill of the pilot, 
 because, as a matter of law, the master has the 
 supreme control N. Y. Supr. Ct., 1870, Martin 
 V. Farnsworth, 41 How. 59 ; S. C, 33 N. Y. Supr. 
 (1 J. & Sp.) 246. 
 
 774. Limited custom. In an action on a 
 policy of insurance, to recover for a loss of in- 
 sured goods composed principally of teas, evi- 
 dence is not admissible to show the business 
 habits of a limited number of tea merchants, not 
 amounting to a general custom, as to the quan- 
 tity of tea usually kept on hand, for the purpose 
 of discrediting the plaintiff's testimony as to the 
 quantity lost by him. N. Y. Supr. Ct., 1878, 
 Toumsend v. Merchants' Ins. Co., 45 How. 501 ; 
 S. C, 86 N. Y. Supr. (4 J. & Sp.) 172. S. P-, 
 Townsend v. Narragansett F. ^ M. Ins. Co., 46 
 How. 40 ; 86 N. Y. Supr. (4 J. & Sp.) 170. 
 
 775. Evidence of a custom among consignees 
 to whom goods are shipped for delivery and col- 
 lection, not to keep the moneys received upon 
 different consignments separate and distinct, 
 but to mingle them together and deposit to their 
 own credit, cannot be shown for the purpose of 
 relieving such a consignee from liability for so 
 mingling, to a party who had no knowledge of 
 that mode of doing business and did not consent 
 
324 
 
 EVIDENCE. 
 
 to it. Ct. App., 1873, Farmers andMeeh. National 
 Bank V. Sprague, 52 N. Y. (7 Sick.) 605. 
 
 776. In an action upon a building contract, 
 evidence of usage as to measurements in the 
 locality where the building was built, is com- 
 petent as part of the contract ; but its effect 
 may be avoided by proof from the other party 
 tliat he was ignorant of the custom. Ct. App., 
 1872, Johnson v. DePuyster, 50 N. Y. (5 Sick.) 
 666. 
 
 777. To excuse negligence. In an action 
 against a carrier of passengers by water to re- 
 cover damages for an injury to a passenger caused 
 by its negligence in not properly securing the 
 gate at its gangway before leaving the dock, 
 the defendant cannot properly be permitted to 
 show the custom of other carriers to wait for 
 the departure before putting in the gates, as an 
 excuse for his own negligence. Sup. Ct., 1876, 
 Cleveland v. N. J. Steamboat Co., 5 Hun, 523. 
 
 778. In an action against a notary for neglect 
 to charge an indorser upon a bill, by permitting 
 his clerk to make presentment and demand, 
 evidence is admissible to show a universal cus- 
 tom at that place for notaries' clerks to perform 
 such acts. Ct. App., 1872, Commercial Bank of 
 Kentucky v. Varnum, 49 N. Y. (4 Sick.) 269 ; 
 Bev'g S. C, 3 Lans. 86. 
 
 779. Unreasonable. Evidence of a custom 
 among merchants, which is itself unreasonable, 
 is not admissible to qualify a mercantile trans- 
 action. Sup. Ct., 1874, Gallup v. Lederer, 1 Hun, 
 282. 
 
 780. Evidence of a custom, not general but 
 existing simply among brokers, to sell goods in 
 their own name and receive pay therefor, is not 
 admissible to sustain a defense of payment, in 
 an action by the owner for the price of goods 
 sold throiigh a broker who, not being invested 
 with any evidences of title, fraudulently pre- 
 tended to be the owner and collected payment, 
 lb. 
 
 XIV. Opinioits and Belief op Witnesses. 
 
 781. In general. A question calling for an 
 opinion upon a state of facts equally apparent 
 to the jury as to the witness, is not competent. 
 Com. App., 1872, AUen v. Stout, 51 N. Y. (6 
 Sick.) 668. 
 
 782. With the exceptions of matters of science, 
 art, skill, trade, navigation, value and other 
 similar inquiries, witnesses are confined in their 
 statements to facts observed and known by 
 them, as distinguished from their opinions and 
 conclusions. Sup. Ct., 1874, Rollwagen v. RoU- 
 wagen, 3 Hun, 121. 
 
 788. Opinions of witnesses, to be admissible in 
 evidence, must be based on facts, and not mere 
 speculations. Sup. Ct., 1875, Swift v. Mass. Mut. 
 Life Ins. Co., 3 Hun, 551. 
 
 784. Where, in an action upon a policy of life 
 insurance, evidence had been given tending to 
 show that the assured had for several years 
 before the application for the policy been sub- 
 ject to severe headaches and had been in the 
 habit of using laudanum, — Held, that it was not 
 competent to ask of the medical examiner for 
 the defendant whether, if he had been advised 
 of these facts, it would have called upon him to 
 make further inquiries, or would have had any 
 effect on his answer as to the propriety of 
 taking the risk. Ct. App., 1873, Higbee v. Guar- 
 dian Mut. Life Ins. Co., 53 N. Y. (8 Sick.) 603. 
 
 785. A physician cannot be heard to testify 
 as to an impression merely, received from a 
 casual acquaintance, when he has already testi- 
 
 fied that it was not strong enough to found a 
 medical opinion upon. lb. 
 
 786. Who may give in evidence. The 
 fact as to whether a root or other vegetable sub- 
 stance is dead or not is a matter of such com- 
 mon observation and experience, that it may be 
 proved by an ordinary witness, not shown to be 
 an expert. Sup. Ct., 1872, Stone v. Frost, 6 Lans. 
 440. 
 
 787. So, also, as to the question of the entire 
 worthlessness of dead grape roots. lb. 
 
 788. Experts. All persons who have acquir- 
 ed a knowledge of the breeds of horses, from 
 raising, dealing in and taking care of horses, are 
 competent to testify as to the breed of a particu- 
 lar horse with which they are acquainted. N. Y. 
 Supr. Ct., 1873, Harris v. Panama R. R. Co., 36 
 N. Y. Supr. (4 J. & Sp.) 373; Aff'd, S. C, 58 N. 
 Y. (13 Sick.) 660. 
 
 789. A mate of a vessel in which a horse is 
 being transported, having testified as to such 
 horse being sick on the voyage, may be asked 
 on cross-examination how he appeared from the 
 time he was out two or three days ; that not 
 calling for an opinion on a subject requiring 
 skill. lb. 
 
 790. A witness who has visited the scenes of 
 many railroad accidents and examined them for 
 the purpose of reporting the probable cause, for 
 publication in a newspaper, is not on that ac- 
 count competent to testify as an expert to the 
 cause of the accident which is the foundation of 
 the suit. Com. App., 1874, Hoyt v. Long Isl. R. 
 R. Co., 57 N. Y. (12 Sick.) 678. 
 
 791. Upon the question whether berths in a 
 steamboat were constructed in the most approve 
 ed manner of the best steamboats built at the 
 time of its construction, men who have for years 
 acted as managing agents of a steamboat com- 
 pany are competent to give their opinions in 
 evidence. Sup. Ct., 1872, Finney v. New Jersey 
 Steamboat Co., 12 Abb. N. S. 1 ; S. C, 5 Lans. 
 607. 
 
 792. As to the effect of injuries upon the 
 human system, the opinion of scientific wit- 
 nesses accustomed to investigate the causes and 
 effects of such injuries should have great weight 
 with the jury ; but a distinction should be made 
 in favor of those using the most perfect instru- 
 ments and processes, and acquainted with the 
 most recent discoveries in science and most ap- 
 proved methods of treatment and investiga- 
 tion, lb. 
 
 793. In an action on a policy of insurance 
 covering articles " in the line of plaintiff's busi- 
 ness, as a German jobber and importer," — 
 Held, that the question whether a particular 
 article was in the line of business specified was 
 one of fact and not of opinion, and that, while 
 testimony might be received as to what was or 
 was not kept by other such dealers, a question 
 calling for the opinion of a witness as to the pro- 
 priety of considering a particular article as 
 forming part of the line of business named was 
 incompetent. Com. App., 1873, Steinbach v. La 
 Fayette Fire Ins. Co., 54 N. Y. (9 Sick.) 90. 
 
 794. An attorney who prepared a bond, and 
 mortgage, and a note on which was an unex- 
 ecuted assignment, written at the same time, 
 can testify as to what was in fact done by the 
 payee, but not as to his opinion or supposition 
 whether such assignment was signed by the 
 payee at the time. Sup. Ct., 1874, Smith v. 
 Sergent, 2 Hun, 107. 
 
 795. An insurance agent, who has testified 
 that he knew nothing of a building or the busi- 
 ness carried on in it, cannot be allowed to state 
 
EVIDENCE. 
 
 325 
 
 the reason why his company would not insure 
 the building, for the purpose of showing the 
 dangerous character of the business. Ct. App. , 
 1871, Atlantic Dock Co. v. Libby, 45 N. Y. (6 
 Hand,) 499. 
 
 796. A physician and surgeon otherwise quali- 
 fied is a competent witness to give an opinion 
 upon medical and surgical questions, notwith- 
 standing he was not, at the time of the occur- 
 rence aa to which he was called to testify, in full 
 practice. Ct. App., 1874, Roberts v. Johnson, 58 
 N. Y. (13 Sick.) 613; Afe'g, S. C, 37 N. Y. Supr. 
 (5 J. & Sp.) 157. 
 
 797. As to damages. In an action to recover 
 damages for an injury to goods caused by the 
 overflow of water upon them, it is improper to 
 permit witnesses not shown to have examined 
 the goods so as to be able to speak upon the ex- 
 tent of the injuries, to give in evidence general 
 and gross estimates of the damages sustained. 
 N. Y. C. P., 1872, Broum v. Elliott, 46 How. 182 ; 
 S. C, 4 Daly, 829. 
 
 798. In an action to recover damages for a 
 nuisance, the plaintiff cannot properly be per- 
 mitted to give in evidence his opinion as to the 
 pecuniary amount of damages sustained by him, 
 but the facts bearing upon that question should 
 be submitted to the jury. Sup. Ct., 1875, Whit- 
 more V. Bischoff, 5 Hun, 176. S. P., Green v. 
 Plank, 48 N. Y. (3 Sick.) 669. 
 
 799. Effect and extent of injuries. A 
 physician who was called to attend a person in- 
 jured by a railroad accident, may testify as to 
 his opinion about the ultimate recovery of such 
 person ; and, in support and confirmation of his 
 opinion that she will not get well, after stating 
 her symptoms and the cause which in his opin- 
 ion produced them, it is competent to prove by 
 him at what period after the injury she would 
 be most likely to improve, if she were going to 
 improve at all. Sup. Ct., 1862, Matteson v. New 
 York Cent. R. R. Co., 62 Barb. 364. 
 
 800. He may also be asked his opinion as to 
 the cause of a spinal difficulty with which she is 
 afflicted, but in such case he must state the facts 
 on which his opinion is founded. lb. 
 
 801. In an action to recover damages for per- 
 sonal injuries caused by defendant's negligence, 
 the physician who examined the plaintiff may 
 properly be asked, whether the doubling up of 
 the plaintiff, as testified to by him, would be a 
 competent cause for his condition. Sup. Ct., 
 1865, Bechwith v. N. Y. Gent. R. R. Co., 64 Barb. 
 2.)'.'. 
 
 802. Por the purpose of showing the incura- 
 bility of the injuries, such physician may be 
 asked as to the time within which a recovery 
 would be most likely to begin; whether the 
 plaintiff would be likely to recover ; what the 
 result would be, if not cured ; and whether a 
 disease of the spine from which the plaintiff was 
 suffering was curable. lb. 
 
 803. He may also be asked whether he had 
 noticed any uncertainty of movement in the 
 plaintiff, indicating paralysis, when the latter 
 was not aware thafrhe was looking at him ; and 
 if so, he may be allowed to testify as to the de- 
 gree of physical and mental power possessed by 
 the plaintiff in his partially paralyzed condition, 
 lb. 
 
 804. In an action for personal injuries, it is 
 competent to inquire of a medical expert as to 
 the probability, from his experience and medical 
 knowledge, of a recurrence of an inflammation 
 of an injured muscle ; also as to the effect of 
 the injury upon the general health of the plain- 
 tiff, for the purpose of showing the actual extent 
 
 of the injury. Ct. App., 1872, Filer v. New York 
 Central R. R Co., 49 N. Y. (4 Sick.) 42. 
 
 805. Effect of slander. In an action for 
 slander, where the words charged are actionable 
 per se, a witness cannot be asked generally 
 whether the plaintiff's reputation was injured 
 by them. Com. App., 1870, Titus v. Sumner, ii 
 N. Y. (5 Hand,) 266. 
 
 806. Negligence. In an action against high- 
 way commissioners for neglect to repair a bridge, 
 the opinion of a witness as to whether the de- 
 fendants had made use of all means necessary 
 to the safety of the bridge, is not competent. 
 Com. App., 1870, Bover v. Barkhoof, 44 N. Y. 
 (5 Hand,) 118. 
 
 807. Negligence must be proved by facts, and 
 the opinion of a witness as to whether the plain- 
 tiff was in a safe and proper place at the time 
 of the injury for which he sues, is not admissi- 
 ble for the purpose of showing negligence on his 
 part. Sup. Ct, 1875, Cleveland v. N. J. Steam^ 
 boat Co., 6 Hun, 523. 
 
 808. An expert in the construction of street 
 railroads, rnay give in evidence his opinion as to 
 whether the rails of such a road were properly 
 laid, based upon previous testimony of others as 
 to their condition at the time when an accident 
 occurred. N. Y. C. P., 1872, Carpenter v. Central 
 Park, etc. R. R. Co., 11 Abb. N. S. 416 ; S. C, 
 4 Daly, 550. 
 
 809. A question to one, not an expert, as to 
 the usual method of constructing street rail- 
 roads, following one as to whether he had ob- 
 served the manner of their construction, does 
 not call for his opinion or knowledge as an ex- 
 pert, but merely for the knowledge derived from 
 observation, and is not objectionable. lb. 
 
 810. In an action for injuries caused by water 
 alleged to have been set back by defendant's 
 bridge, the testimony of an expert to show that 
 the abutments of the bridge were properly and 
 skilfully placed, and the spaces sufficient to dis- 
 charge the water in time of flood, is admissible 
 on the part of the defense. Sup. Ct., 1875, Con- 
 hocton Stone R. Co. v. Buffalo, N. Y. andE. R. R. 
 Co., 3 Hun, 523. 
 
 811. Necessity of repairs. In an action 
 against a canal contractor for injuries resulting 
 from defects in a bridge which he was bound to 
 keep in repair, it is improper to ask a witness, 
 who was superintendent of repairs for that sec- 
 tion and directed the contractor what repairs to 
 make, whether he " ordered all the repairs to be 
 done that, in his opinion, he deemed necessary 
 and proper," since it is for the jury to decide 
 what repairs were necessary, and compliance 
 with the direction of such superintendent would 
 not relieve the defendant from liability. Sup. 
 Ct., 1871, French v. Donaldson, 5 Lans. 293 ; Aff'd, 
 S. C, 57 N. Y. (12 Sick.) 496. 
 
 812. Reason. A witness may testify to facts 
 from which the reason of the acts of others may 
 be inferred, but he cannot answer the question 
 whether they did so for a reason stated in the 
 question, as that would be a mere expression of 
 opinion. Sup. Ct., 1872, Filkins v. Baker, 6 Lans. 
 516. 
 
 813. Sanity. Persons not experts may testi- 
 fy to facts and incidents known or observed by 
 them, in relation to a testator, which tend to 
 show soundness of mind or the contrary, and 
 may testify to the impression produced upon 
 them by what they beheld or heard, and whether 
 the acts and declarations thus testified to seemed 
 to them rational or irrational ; but they may not 
 express an opinion as to the general soundness 
 or unsoundness of mind of such testator, nor as 
 
326 
 
 EVIDENCE. 
 
 to his competency to execute a will. Ct. App., 
 1873, Hewlett v. Wood, 65 N. Y. (10 Sick.) 634. 
 
 814. A question to a medical witness in tliis 
 form : " Assuming that a person had tliafc form 
 of insanity whicli you denominate melancholia, 
 and had committed suicide, would you attribute 
 that suicide to the disease V — Held not competent 
 because calling not for any fact peculiarly within 
 the knowledge of an expert, but for an inference 
 from a supposed fact, which inference the jury 
 were capable of drawing, and which it was 
 within their province to draw, if justified by the 
 facts. Ct. App., 1873, Vanzandt v. Mutual Ben- 
 efit Life Ins. Co., 55 N. Y. (10 Sick.) 169. 
 
 815. Signature. A witness called to prove 
 the hand-writing of another cannot be asked on 
 cross-examination, whether he would take it 
 against tlie denial by such other of his signature. 
 Com. App., 1871, Bank of the Commonwealth v. 
 Mudyett, 44 N. Y. (5 Hand,) 514 ; Aff'g 45 Barb. 
 663. 
 
 816. Time required to perform. In an 
 action for work done in repairing a house, a 
 witness who has not examined the work done 
 for the purpose of estimating the number of 
 days' work required to perform it, cannot be 
 asked his opinion as to how many days it would 
 take. Sup. Ct., 1874, Hadden v. Houghialing, 1 
 Hun, 318. 
 
 817. — value. A witness, to be competent to 
 express an opinion as to the value of an article, 
 must be shown first to fiave peculiar knowledge 
 of such article and its value. Ct. App., 1871, 
 Teerpenninq v. Corn Exchange Ins. Co., 43 N. Y. 
 (4 Hand,) '279. 
 
 818. Accordingly held, in an action on an 
 insurance policy, that a farmer who had fre- 
 quently been in plaintiff's store, but had no 
 experience in the business and no knowledge of 
 the market value of the goods destroyed, was 
 not competent to testify as to the amount of 
 goods in store at the time of the fire. lb. 
 
 819. A witness should not be allowed to tes- 
 tify to his opinion as to the value of articles, 
 without first laying a foundation by showing 
 him to be competent to form an opinion. N. Y. 
 Supr. Ct., 1873, Chambovet v. Cagney, 35 N. Y. 
 Supr. (3 J. & Sp.) 474. S. P., Bedell v. Long Isl. 
 R. R. Co., 44 N. Y. (5 Hand,) 367. 
 
 820. Proof by such witness that he purchased 
 some of the articles in question is not sufficient 
 to qualify him to testify as to their value. lb. 
 
 821. The general statement by a witness of 
 his opinion or conclusion, as to the value of 
 property taken by the defendant, is not admis- 
 sible in ai; action for such taking, without show- 
 ing the facts and particulars within his knowledge 
 upon which it is founded, and the process by 
 which his conclusion is arrived at. N. Y. C. P., 
 1872, Wehle v. Haviland, 42 How. 399; S. C, 4 
 Daly, 550. 
 
 822. Thus, an opinion as to the value of a 
 stock of goods, is inadmissible without the pro- 
 duction of an inventory or statement, or some 
 description of their quantity, quality, kind or 
 character, or of the separate value of the arti- 
 cles, from which their aggregate value can be 
 computed. lb. 
 
 823. A witness cannot be permitted to give 
 in evidence his opinion of the market value of 
 honey, which he has never seen but has heard 
 described by another witness, unless he confines 
 it to the quality thus described. Chen. Co. Ct., 
 Todd V. Warner, 48 How. 234. 
 
 824. The value of a boat, in an action for its 
 conversion, may be proved by the opinion of 
 a witness who had not seen it for several months 
 
 prior to the conversion ; notwithstanding, too, 
 his knowledge of the value is derived mostly 
 from sales upon credit. Ct. App., 1874, Judsan 
 V. Boston, 58 N. Y. (13 Sick.) 664. 
 
 825. Upon the question of the value of ar- 
 ticles that have no market value, a dealer in 
 such articles may give in evidence his opinion 
 as to their value. N. Y. Supr. Ct., 1874, Sturm 
 V. Williams, 38 N. Y. Supr. (6 J. & Sp.) 325. 
 
 826. — value of repairs. In an action in- 
 volving the question of the value of repairs put 
 upon a locomotive engine, an expert in building 
 and repairing engines may properly be asked 
 " could the engine, by any possibility, have been 
 so damaged by wear and tear, or by accident, 
 that with the parts and materials as testified to 
 by F, $20,000 would have been a reasonable 
 charge for rebuilding her 1 " Sup. Ct., 1874, 
 Tyng v. Fields, 3 Hun, 75. 
 
 827. — value of services. The value of the 
 services rendered by an attorney to his client 
 may be proved, in an action between them, by 
 the opinions of other attorneys, founded partly 
 on their personal knowledge of the services, and 
 partly on the testimony of the plaintiff and of 
 others personally acquainted therewith. Sup. 
 Ct., 1873, Garfield v. Kirk, 65 Barb. 464. 
 
 828. 'The plaintiff himself may testify as to 
 the value of his services, and may answer the 
 question what he charged the defendant for his 
 services in a particular suit. lb. 
 
 829. In an action to recover for services 
 rendered by plaintiff in nursing defendant's in- 
 testate during his last illness, where the physi- 
 cian who attended him has testified that the 
 diseases of the intestate were of such an ag- 
 gravated description that the care of him was 
 the subject of no standard price, he may proper- 
 ly testify to his opinion as to the value of the 
 services. Sup. Ct., 1874, Woodward v. Bugsbee, 
 2 Hun, 128. 
 
 XV. Former testimony. 
 
 830. Of deceased party. The testimony 
 of a deceased party, taken on a former trial, 
 cannot be given in evidence where he, if living, 
 would have been incompetent as a witness, by 
 reason of the death of the other party pending 
 the action. Ct. App., 1872, Eaton t. Alger, 47 
 N. Y. (2 Sick.) 345. 
 
 XVI. Evidence in pabticulab actions. 
 
 881. Admeasurement of do'tver. A sur- 
 rogate's record of the probate of the last 
 will and testament of the plaintiff's husband is 
 not competent evidence of his death, in an 
 action by the widow for admeasurement of her 
 dower ; at least, not until from lapse of time it 
 has become competent as an ancient record. Ct. 
 App., 1875, Carroll v. CaiToll, 60 N. Y. (15 Sick.) 
 121 ; Eev'g S. C, 2 Hun, 609. 
 
 832. Assessment paid. In an action to re- 
 cover money paid by plaintiff to discharge an 
 assessment against defendant under mistake, 
 the testimony of the plaintiff that he paid the as- 
 sessment, and the bill of assessment signed by 
 the deputy collector, are not sufficient evidence 
 that any assessment had ever been imposed on 
 defendant's property. There is no law making 
 such hill legal evidence against the defendant in 
 such a case. N. Y. C. P., 1873, Weinberger T 
 Fauerbach, 14 Abb. N. S. 91 ; S. C, 4 Daly, 554. 
 
 833. Assault and battery. Although evi- 
 dence of acts done, or words spoken by the 
 plaintiff, long before the cause of action arose, 
 
EVIDENCE. 
 
 327 
 
 are not admissible in eyidence on behalf of the, 
 defendant, in an action for an assault and batter y 
 for the purpose of showing provocation and 
 mitigating damages, yet, where such acts or 
 words are a portion of a series of provocations 
 frequently repeated, and continued down to the 
 time of the assault, they are admissible. Sup. 
 Ct., Sp. T., 1871, Stellar v. Nellis, 42 How. 163 ; 
 S. C, 60 Barb. 624. 
 
 834. In a civil action for assault and battery, 
 where the defendant justifies his acts as being 
 wholly in self-defense, evidence on his part 
 of previous threats made by the plaintiff, that he 
 would whip the defendant, is admissible, in con- 
 nection with proof of previous difficulties be- 
 tween the parties, for the purpose of aiding the 
 court in ascertaining who was the ' probable 
 aggressor at the time of the affray. Sup. Ct., 
 1871, Murphy v. Dart, 42 How. 31. 
 
 836. Bond of Indemnity. In an action by 
 a sheriff upon a bond given to indemnify liim for 
 a levy and sale under execution, where a re- 
 covery has been had against him by a third 
 person claiming the property sold for its conver- 
 sion, it is competent for the defendants to show, 
 in mitigation of damages, the amount received 
 by the slTerifE upon the sale. The onus is then 
 upon him to show that he has paid, or is liable to 
 pay, any portion of the receipts to another, and 
 the presumption as to the performance of official 
 duty does not apply. Ct. App., 1874, O'Brien v. 
 McCann, 68 N. Y. (13 Sick.) 373. 
 
 836. This evidence is proper in behalf of the 
 sureties in the bond, although their principal 
 does not defend, and is admissible under a gen- 
 eral denial. lb. 
 
 837. In an action against a sheriff and the 
 obligors in a bond, which after reciting tlie 
 recovery of a judgment and issuing of an execu- 
 tion tliereon, and that certain personal property 
 that appeared to belong to the judgment debtor 
 is claimed by other parties, was conditioned to 
 save harmless the sheriff for levying, attaching, 
 and selling, under such execution, of all or any per- 
 sonal property which he might judge to belong to 
 said judgment debtor, or for entering any store 
 or building to take such property, the plaintiff 
 seeking to recover damages for the taking and 
 conversion of certain personal property, the bond 
 itself is admissible in evidence against the sure- 
 ties. N. Y. Supr. Ct., 1875, Chapman v. O'Brien, 
 39 N. Y. Supr. (7 J. & Sp.) 244. 
 
 838. Where, in sucli case, the answer of the 
 sureties claimed that the property for which the 
 suit was brought, was levied upon by virtue 
 of an execution bearing the same description as 
 the one mentioned in the bond, and that such 
 property belonged to the judgment debtor, and 
 the whole defense was placed upon that ground, 
 — Held, that a, prima facie ease was presented, 
 that the sheriff had levied upon the property 
 claimed, and that he had judged it to belong to 
 the judgment debtor, within the terms of the 
 bond. lb. 
 
 839. In an action on a bond, given on the sale 
 of a private bank, to indemnify the obligee 
 against all liabilities of the bank, for the re- 
 covery of money paid by such obligee upon de- 
 posits shown as cancelled on the bank books, 
 evidence is admissible to show that the circum- 
 stances constituting the claim an existing liabil- 
 ity were known to the obligor at the time of the 
 transfer. Ct. App., 1871, Hart v. Messenger, 46 
 N, Y. (1 Sick.) 253 ; Eev'g S. C, 2 Lans. 446. 
 
 840. Breach of promise to marry. To 
 entitle the plaintiff, in an action for a breacli of 
 promise to marry, to recover, it is necessary to 
 
 establish a mutual engagement, a promise made 
 and accepted as an actual contract ; but this 
 may be established by circumstantial evidence, 
 such as declarations and attentions, showing a 
 meeting of tlie minds of the parties in a deter- 
 mination to marry, without proof of formal 
 words of request and promise. Brooklyn City 
 Ct., 1872, Homan v. Earle, 18 Abb. N. S. 402. 
 
 841. The law has permitted tlie promise of 
 marriage to be proven by such evidence, not be- 
 cause the parties to tlie contract were not per- 
 mitted to be witnesses, but because, in the nature 
 of the contract itself, resort to such proof became 
 necessary ; and the rule is not affected by the 
 change in the law allowing the parties to testify. 
 lb. 
 
 842. A release of such promise cannot be 
 proved unless pleaded. lb. 
 
 843. It is not necessary to prove any formal 
 words constituting a contract to marry, but the 
 meaning and intention of the parties may be in- 
 ferred from their acts and from all the cir- 
 cumstances of the case, and if from these it 
 is clear that the parties understood there was an 
 engagement and intended it, that is sufficient. 
 Ct. App., 1873, Homan v. Earle, 63 N. Y. (8 
 Sick.) 267 ; Aff'glS Abb. N. S. 402. 
 
 844. Where there is proof of acts and de- 
 clarations on the part of the defendant tending 
 to show tliat he endeavored to convey the im- 
 pression to the plaintiff that his former wife at 
 her death had consented to, or requested his re- 
 marriage with .the plaintiff, he cannot be per- 
 mitted to sliow that his wife did not mention 
 plaintiff in connection with marriage, it being 
 entirely immaterial whether she did or not. lb. 
 
 846. Actions against carrier. In an ac- 
 tion by the owner of a canal boat against the 
 shippers for delay in loading, resulting in the 
 freezing in of the boat, also for delay in unloading 
 and damage to the boat, caused by measures 
 taken by them for preserving the cargo, — Held, 
 the evidence being conflicting as to who caused 
 the delay, that evidence should have been ad- 
 mitted in support of a counterclaim interposed 
 by the defendants for damage to the cargo, 
 caused by plaintiff's delay. Ct. App., 1870, 
 Starbird v. Barrows, 43 N. Y. (4 Hand,) 200. 
 
 846. The payment of f reiglit, and an admission 
 by one defendant that the plaintiff had done all 
 he could, would not be conclusive against such 
 counterclaim. lb. 
 
 847. The claim for damages to the boat, being 
 on an independent agreement, and a verdict for 
 the plaintiff not being in excess of the proof on 
 this denmnd alone, — Held, that such verdict did 
 not neopsiarily decide that the delay was caused 
 by defenilant's default, and the error in rejecting 
 evidence of their counterclaim was not thereby 
 cured. lb. 
 
 848. In an action against a railroad company, 
 for damages for delay in transportation of per- 
 ishable goods, evidence of the condition of the 
 goods when received Held competent, as tend- 
 ing to show their condition when delivered by 
 the defendant company to an intermediate car- 
 rier. Com. App., 1873, Holden v. New York Cen- 
 tral E. R. Co., 54 N. Y. (9 Sick.) 662. 
 
 849. In an action against one of several con- 
 necting lines of railroads, for the loss of a box 
 delivered to another of them for transportation 
 over them all, proof of the course of business be- 
 tween them is competent on the question of the 
 receipt or delivery by one to the other. Sup. 
 Ct., 1873, Rxiot V. Great West. Ry. Co., 65 Barb. 
 619 ; Aff'd, S. C, 56 N. Y. (10 Sick.) 636. 
 
 860. A book kept by the agent of one of such 
 
328 
 
 EVIDENCE, 
 
 lines, at the point of connection with another of 
 tliem, in whicli he entered the receipt of goods 
 for transportation over such other and their de- 
 livery to the latter, is competent evidence, and 
 is prima facie -proot of the receipt by his com- 
 pany of a package entered therein, and, conse- 
 quently, of its liability therefor if no delivery to 
 tlie other carrier is shown. lb. 
 
 851. Action under civil damage act. In 
 an action by a wife, under ch. 646, Laws of 1873, 
 to recover damages for the deprivation of lier 
 means of support resulting from her husband's 
 intoxication, evidence of sales of liquor to the 
 husband prior to the passage of that act is inad- 
 missible, even for the purpose of showing the de- 
 fendant's knowledge of the husband's habits. 
 Sup. Ct., 1875, Dubois v. Miller, 5 Hun, 332. 
 
 852. The admission of such evidence is not 
 cured by charging the jury that they cannot find 
 damages for anything that occurred prior to the 
 passage of thfe act. lb. 
 
 853. Claims to real property. A notice 
 purporting to be signed by the defendant in an 
 action for the determination of claims to real 
 property, and addressed to the plaintiff, stating 
 that the defendant held a certificate of sale for 
 non-payment of water rates upon tlie premises 
 in question, and requiring tlie plaintiff to redeem 
 within tlie time allowed by law, or the sale 
 would become absolute, without proof of the 
 genuineness of the notice, is not suflScient to 
 show that defendant claimed any title to tlie 
 premises. Sup. Ct.,* 1874, Boylston v. Wheeler, 
 2 Hun, 622. 
 
 854. On contract to employ. In an action 
 by a school teacher, to recover damages for the 
 refus.il of the trustee to permit her to perform 
 her contract made with his predecessor, the de- 
 fendant may prove in mitigation of damages 
 that by making reasonable eflforts. employmeiit 
 could have been secured by the plaintiff. Sup. 
 Ct., 1872, Gillis V. Space, 63 Barb. 177. 
 
 855. Proof that, in general, the schools in the 
 same town and neighborliood were not taken on 
 the day when the defendant refused to allow the 
 plaintiff to enter upon her employment, and of 
 the compensation usually paid for teaching the 
 common scliools in the several districts of such 
 town, is not sufficient to call for the submission 
 of the question whether she could have obtained 
 other employment to the jury. lb. 
 
 856. In such action, the defendant may prove, 
 in justification of his oflScial act, tliat the plain- 
 tiff was incompetent to teach the school, not- 
 withstanding she had a certificate of her quali- 
 fication to teach from the proper district school 
 commissioner ; sucli a certifii'ate being merely 
 prima facie evidence of qualification as between 
 tlie teacher and the trustees, and subject to re- 
 buttal, lb. 
 
 857. In an action for the breach of a contract 
 to employ to make sales on a commission, evi- 
 dence of the amount of profits which might have 
 been made during the term of the contract, 
 based on an estimate of the probable amount of 
 sales during such term, is not admissible to es- 
 lablisli the plaintiff's damages. Sup. Ct., 1872, 
 Washburn v. Hubbard, 6 Lans. 11. 
 
 858. On contract of sale. It is not neces- 
 sary to prove actual knowledge on the part of 
 the' principal of the deteriorated quality of any 
 particular delivery of milk, or express authority 
 to dilute, etc., such milk, to establish the liability 
 of such principal under ch. 86, Laws 1865, but it 
 is sufilcient to prove knowledge by him that his 
 servants and agents did deliver bad milk, or a 
 general authority to them to do so. This knowl- 
 
 edge or authority may be established by cir- 
 cumstantial evidence. Ct. App., 1872, Verona 
 Central Cheese Factory Co. v. Murtaugh, 60 N. Y 
 (5 Sick.) 314; Rev'g S. C, 4 Lans. 17. 
 
 859. Evidence that such principal was at and 
 about his farm, managing and controlling it, and 
 that his servants prepared and delivered at a 
 factory diluted and skimmed milk, unrebutted 
 liy proof that he had no knowledge and was in no 
 way accessory to the acts complained of, raises 
 a presumption of fact that they were authorized 
 by him to do so, and is sufficient to require the 
 submission of the question to the jury. lb. 
 
 860. In an action for the breach of a warranty 
 in the sale of a chattel, evidence of the price at 
 which the purchaser resold it at private sale is 
 not admissible upon the question of its value. 
 Sup. Ct., 1871, Roe V. Hauson, 5 Lans. 304. 
 
 ,861. In an action for the price of goods sold, 
 where tlie answer alleges non-performance on 
 the part of the plaintiff by reason of a deficiency 
 in weight, and claims damages therefor, the de- 
 fendant, to sustain his counter claim, must show 
 the amount of the deficiency, and performance 
 or tender or readiness to perform on his part. 
 N. Y. Supr. Ct., 1875, Parsons v. Sutton, 39 N. Y. 
 Supr. (7 J. &Sp.)544. 
 
 862. In an action for the price of articles manu- 
 factured for and sold to the defendant, where 
 the answer alleges that they were not to be paid 
 for until the vendee should receive payment 
 from those to whom he should sell ; that the 
 vendor warranted that they should be made in a 
 substantial and skilful manner; that they were 
 not so made, but were so poorly constructed that 
 he has been unable to collect any pay and his 
 vendees have claimed large damages ; evidence 
 is admissible to show the poor workmanship, 
 but not the fact that the vendees claimed dam- 
 age. Ct. App., 1871, Seltenreich v. Siementz, 46 
 N. Y. (1 Sick.) 677. 
 
 863. Where, in an action for the recovery of 
 a quantity of coal, evidence was produced that 
 the plaintiff and vendor refused an application 
 of the vendee for credit, but permitted him to 
 remove the coal from a barge to his own yard, 
 sending an agent, some three days after delivery 
 was completed, to demand payment, and, such 
 agent having at that time obtained only a small 
 advance on the freight, directed him to call 
 again in two or three days, when the vendee 
 stated that he could not pay, and, in answer to 
 inquiries, that he had sold out, and on being 
 asked if he had also sold plaintiff's coal, replied 
 that he could not help it ; and afterward the 
 vendee, on being served with process, declared 
 to the sheriff that " It looked so much like a 
 swindle, he was ashamed of it," — Held, that 
 there was sufficient evidence to sustain a finding 
 that the vendor did not intend to waive the con- 
 dition of payment ; and that the delivery was 
 conditional. Eabl, C, dissents. Com. App., 1872, 
 Bammett v. Linneman, 48 N. Y. (3 Sick.) 399. 
 
 864. On contract to do Twork. In an ac- 
 tion upon a contract to do work according to 
 specifications, the plaintiff must prove the con- 
 tract and specifications, and compliance there- 
 with, and he cannot rely upon the answer set- 
 ting forth some of the specifications and require- 
 ments of the contract as sufficient proof thereof . 
 Sup. Ct., 1875, Mansfield v. Kerner, 4 Hun, 133. 
 
 865. Conversion. Evidence that the owner 
 of a large quantity of medicine, put up in bot- 
 tles and boxes, leased the premises where it was 
 stored, selling a portion to the lessee and leaving 
 the remainder ; that after a fire on the premises 
 the agent of the owner si-w the boxes there 
 
EVIDENCE. 
 
 329 
 
 somewhat smoked, but could not discover that 
 any of the medicine had been destroyed or in- 
 jured, and that, shortly afterward, an agent of 
 the plaintiff was shown by the defendant a large 
 pile of similar boxes, somewhat smoked, con- 
 taining medicine, which the defendant said he 
 had removed from such leased premises under a 
 mortgage from the lessee, and said was all the 
 medicine there was on those premises, — Held 
 not to be sufficient proof of a conversion by de- 
 fendant of plaintiff's medicine. Monell, C. J., 
 dissents. N. Y. Supr. Ct., 1874, American Medi- 
 cine Co. V. Kessler, 38 N. Y. Supr. {6 J. & Sp.) 407. 
 
 866. In an action against a railroad company 
 for a conversion of baggage, carried by it con- 
 trary to the expressed will of the owner, evi- 
 dence of a subsequent arrangement between the 
 plaintiff and the president of the defendant com- 
 pany, for its delivery at a certain station, and of 
 what passed between the plaintiff and defend- 
 ant's agents at such station relative thereto, is 
 admissible on the issue of conversion. Ct. App., 
 1872, McCormick v. Penn. Central R. R. Co., 49 
 N. Y. (4 Sick.) 303. 
 
 867. Proof that the borrower of a bond, when 
 asked to return it, replied that he had obtained 
 a loan on a day named and had used the bond, 
 is sufficient evidence of a conversion on that 
 day. N. Y. Supr. Ct., 1869, Nauman v. Caldwell, 
 2 Sweeny, 212. 
 
 868. In an action by tlie vendee of a flock of 
 sheep for a conversion of the wool by the ven- 
 dor, it is not competent to show that on former 
 sales of a similar character the plaintiff had not 
 claimed the wool. Nor is evidence admissible to 
 show that the value of the sheep without the 
 wool was greater than the price paid. Com. 
 App., 1872, Groat v. Gile, 51 N. Y. (6 Sick.) 431. 
 
 869. In an action to recover damages for the 
 conversion of personal property, where the de- 
 fense is that the property was taken by virtue 
 of a particular clause in a chattel mortgage, the 
 plaintiff may show that such clause was inserted 
 fraudulently without his knowledge. N. Y. 
 Supr. Ct., 1873, Chambovet v. Cagney, 36 N. Y. 
 Supr. (3 J. & Sp.) 484. 
 
 870. Under a complaint charging only an un- 
 lawful, forcible, and violent taking away of 
 plaintiff's sewing machine, evidence of an un- 
 unlawful entry upon his premises without li- 
 cense, though incidental to the alleged unlawful 
 taking, is improper. N. Y. C. P., 1869, Kenny 
 V. Planer, 3 Daly, 131. 
 
 871. Action against corporation. In an 
 action against an alleged corporation, where the 
 answer puts directly in issue its corporate ex- 
 istence, the fact that it is a corporation, capable 
 of contracting and of being sued, must be proved 
 as a first step in the trial ; and proof of a mere 
 user, or the assumption of corporate capacity is 
 not sufficient for that purpose. Sup. Ct., 1872, 
 Van Buren v. Reformed Church of Gansevoort, 62 
 Barb. 495. 
 
 872. To establish the existence of a corpora- 
 tion de facto, in an action against it, requires 
 proof, 1st. Of the existence of a charter, or some 
 law under which a corporation with the powers 
 assumed might lawfully be created ; and 2d. A 
 use, by the party to the suit, of the rights claim- 
 ed to be conferred by such charter or law. lb. 
 
 873. On covenant. In an action for breach 
 of covenant in a deed conveying a certain amount 
 of water under a certain head, — Held, tliat evi- 
 dence as to the difference in value of the use of 
 the mill with the water actually furnished, and 
 the use thereof witli a power equal to that which 
 would be supplied by the number of inches 
 
 specified under the pressure indicated, was inad- 
 missible on the question of damages. Ct. App., 
 1871, Torrance v. Conger, 46 N. Y. (1 Sick.) 340. 
 
 874. Action for distribution. In an ac- 
 tion for the distribution of the personal prop- 
 erty of a deceased husband, the widow may 
 show that a promissory note, drawn payable to 
 her husband and herself, was inventoried and 
 appraised as a part of the estate by her procure- 
 ment, but under a misapprehension of her right 
 to it as survivor. Sup. Ct., 1871, Sanfard v. 
 Sanford, 5 Lans. 486 ; S. C, 61 Barb. 293. 
 
 875. But it may also be shown that a legacy 
 to such widow in lieu of dower, and of all claims 
 against the testator's estate, was inserted in the 
 will upon an understanding between her and 
 the testator that it should be in lieu of such note 
 as well as all other claims, and that fact may be 
 proved by the testimony of the attorney who 
 drew the will. lb. 
 
 876. Divorce. In an action for divorce on 
 the ground of adultery, the confessions of the 
 defendant are not sufficient to establish the 
 charge, unless corroborated by other testimony, 
 or made under circumstances which entirely 
 preclude suspicion of collusion or imposition. 
 Sup. Ct., 1861, Lyon v. Lyon, 62 Barb. 138. 
 
 877. The corroborative facts, necessary to be 
 proved in such case, are such as tend to establish 
 the adultery charged in the complaint. Mere proof 
 of isolated facts, occurring at different times, 
 can have no effect by way of corroboration of 
 each other. lb. 
 
 878. A divorce will not be granted to a wife 
 on the ground of adultery on' the part of the 
 husband, upon mere proof that she has become 
 tainted with the venereal disease, without suf- 
 ficient evidence that he had it or communicated 
 it to her. N. Y. Supr. Ct., Sp. T., 1873, Horn- 
 burger V. Hamburger, 46 How. 346. 
 
 879. Upon the question of the proper allow- 
 ance for alimony in a divorce case, evidence of 
 an offer on belialf of an unmarried person to 
 purcliase real property at a specified price, with 
 the tender of a contract in blank, the price and 
 terms being the same at which the defendant in 
 his testimony had said he would sell, does not 
 prove the property to be of that value, where 
 there is competent evidence to the contrary. 
 Sup. Ct., 1871, Galinger v. Galinger, i Lans. 476 ; 
 S. C, 61 Barb. 31. 
 
 880. Ejectment. If the complaint in eject- 
 ment merely demands the recovery of possession 
 and damages for withholding, evidence of the 
 value of the use and occupation is not admissi- 
 ble ; the claim for rents and profits being a sep- 
 arate and distinct cause of action, which must 
 be separately alleged. Com. App., 1874, Larned 
 V. Hudson, 57 N. Y. (12 Sick.) 151. 
 
 881. A general exception to the evidence is 
 sufficient in such a case, there being no cause of 
 action alleged to which the evidence is applica 
 ble. lb. 
 
 882. In an action of ejectment brought by one 
 to whose predecessor the lands in question were 
 conveyed in trust, by a deed authorizing him to 
 sell only under the control and direction of the 
 Supreme Court, the defendant offered in evi- 
 dence a stipulation executed by the original 
 trustee in a former ejectment suit, reciting that, 
 in consideration of tlie defendant's consent that 
 the suit be discontinued, lie released him from 
 all claims and demands relating to the property, 
 —Held, inadmissible, as, if construed as a 
 conveyance, it was in violation of the trusts, and 
 though an order of discontinuance was granted 
 thereon, that could not be claimed as a sanction 
 
330 
 
 EVIDENCE. 
 
 of the release or sale by the court. Cora. App., 
 
 1872, Fitzgerald v. Topping, 48 N. Y. (3 Sick.) 
 438. 
 
 883. Action by executor. In an action 
 by foreign executors to whom letters have been 
 issued in this State, upon a note given in settle- 
 ment of a debt due the estate, certified copies 
 of the letters issued to them here are admissible 
 in evidence, without proof of the probate of the 
 will. Sup. Ct., 1876, Leland v. Manning, 4 
 Hun, 7. 
 
 884. The releases given between the parties, 
 and the pleadings in suits preceding the settle- 
 ment, are also admissible to show the matters 
 involved and the consideration of the note. lb. 
 
 885. In such action, evidence as to an attempt- 
 ed negotiation of the note by the executors is 
 immaterial and incompetent. lb. 
 
 886. Foreclosure. In an action to foreclose 
 a mortgage, given by a married woman on her 
 separate property in payment of a note given 
 by her husband, evidence is admissible to show 
 that the consideration of such note was money 
 borrowed for use and actually used in improv- 
 ing the mortgaged premises. Sup. Ct., Sp. T., 
 
 1873, Caryl v. Williams, 7 Lans. 416. 
 
 887. Action for fraud. In an action for 
 fraud in an exchange of property, the defendant 
 offered to prove that the property taken by him 
 was worth much less than the amount allowed 
 for it in the trade. Beld, not competent eithet 
 upon the question of fraud or damages. Com. 
 App., 1873, DalrympTe v. Hannum, 54 N. Y. (9 
 Sick.) 634. 
 
 888. In such case, an offer by the plaintiff to 
 reconvey the land taken by him at a great 
 reduction from the exchange price, is competent 
 evidence in his behalf upon the question of 
 damages. lb. 
 
 889. In an action to recover back the price 
 paid for worthless stock, on the ground of fraud- 
 ulent representations inducing the purchase, 
 statements as to the value of the stock and solic- 
 itations to purchase, made by one of the ven- 
 dors to third parties, not in the presence of the 
 plaintiff nor at tlie time or place of hjs pur- 
 chase, are not admissible in evidence to show 
 wliether tlie representations made to him were 
 with fraudulent intent. Sup. Ct., 1870, Hubbell 
 V. Alden, 4 Lans. 214. 
 
 890. Nor are such statements and solicitations 
 admissible to show collusion between such ven- 
 dor and other parties to induce a sale for their 
 joint benefit ; nor is a prior sale made by him 
 admissible upon either question. lb. 
 
 891. The testimony of the defendants them- 
 selves as to the absence of such fraudulent 
 intent, is clearly admissible, and in an important 
 case where that question is vital, and the exam- 
 ination lias taken a liberal range, but the de- 
 fendants have not been examined on that point, 
 they sliould not be excluded on the ground that 
 tlie testimony was closed. lb. 
 
 892. Statements made by the several defend- 
 ants, without the privity of their co-defendants, 
 are not admissible against the latter, when 
 objected to on that ground, if they were not 
 jointly liable. lb. 
 
 893. The fact that the seller of a chattel does 
 not communicate to the purchaser the price at 
 which he bought it, but sold it at an advance, 
 does not establish fraud ; but if the person from 
 whom the purchase was made is distinctly 
 named, so that inquiry can be made of him, that 
 strongly rebuts any presumption of fraud. Sup. 
 Ct., 1871, Edwards v. Collson, 5 Lans. 324. 
 
 894. In an action for fraudulently obtaining 
 
 a judgment against plaintiff by a false affidavit 
 of service of summons, the report of a referee 
 reciting his opinion that the summons was never 
 served, and an order of court referring to the 
 referee's report and setting aside the judgment, 
 but not stating the grounds for so doing, is not 
 sufficient to establish the falsity of the affidavit, 
 as res adjudicata between the parties. For that 
 purpose, the moving papers and papers read in 
 opposition and order of reference should also be 
 produced. N. Y. C. P., 1873, Alkus v. Bodh, 4 
 Daly, 397. 
 
 895. Action to set aside fraudulent 
 conveyance. In an action by judgment cred- 
 itors of a husband, against him and his wife, to 
 set aside a conveyance by the husband to his 
 wife through an intermediate grantee, as being 
 fraudulent as against the plaintiffs, the testi- 
 mony of the husband on his examination in sup- 
 plementary proceedings instituted against him 
 by another creditor, is competent evidence as 
 against the husband, but neither his testimony, 
 his acts or his declarations are admissible 
 against the wife. Sup. Ct., 1871, Ijormore v. 
 Campbell, 60 Barb. 62. 
 
 896. The mere fact that a debtor, in embar- 
 rassed circumstances, sold his entire stock of 
 goods, and took for them the notes of a pur- 
 chaser of limited responsibility as compared 
 with the amount of the property sold, having a 
 long period to run, with the intention of turning 
 them over to another party, is not conclusive 
 evidence of the fraudulent character of the sale 
 as against creditors. N. Y. Supr. Ct., 1873, 
 Starin v. Kelli/, 36 N. Y. Supr. (4 J. & Sp.) 360. 
 
 897. In an action to set aside a deed given by 
 a father to his son, after the death of the father, 
 on the ground that the grantor was induced to 
 execute the same by false and fraudulent repre- 
 sentations, and by undue and improper influ- 
 ence, and that he was of unsound mind, evi- 
 dence is admissible on the part of the defendant 
 to show that from the time he became of age he 
 liad, at the request of his father, remained upon 
 the farm conveyed by the deed, and devoted his 
 time and labor to it, for 16 years, without 
 compensation, relying upon the promise and 
 agreement of the father that he should, in con- 
 sideration thereof, have the farm, either by deed 
 or will ; since such evidence would tend to show 
 a defense to the action, and would have a bear- 
 ing against the allegations of undue influence 
 and insanity of the grantor, by showing the 
 reasonableness and propriety of the deed, and 
 that its execution was a sane and just act, and 
 evinced the exercise of reason and judgment. 
 Sup. Ct, 1872, Canjield v. Fairbanks, 63 Barb. 
 461. 
 
 898. Action for injuries by dog. In an 
 action for damages done by defendant's dog, in 
 connection with another dog, in killing sheep, 
 the defendant may be asked on cross-examina- 
 tion whether he has killed the dog since the 
 previous trial ; as, in the absence of evidence as 
 to the cause for killing, it would raise a pre- 
 sumption against him. Sup. Ct., 1874, Carroll 
 V. Weiler, 1 Hun, 605. 
 
 899. Evidence is also admissible in such a 
 case to show that the two dogs had at other 
 times been seen in company, as it would tend to 
 show that they were known to each other, and 
 raise a presumption that they would act to- 
 getlier. lb. 
 
 900. Against innkeeper. In an action 
 against an innkeeper to recover an amount of 
 money deposited by a guest in his safe, evidence 
 IS admissible to show that the plai'vtiff was, 
 
EVIDENCE. 
 
 331 
 
 shortly before the loss, in possession' of the 
 amount of money claimed, such possession 
 being presumed to continue. Com. App., 1870, 
 Wilkins V. Earle, 44 N. Y. (6 Hand,) 172. 
 
 901. On insurance policy. Where an 
 insurance company defends an action upon the 
 policy on the ground that the insured set the 
 building on fire, evidence is admissible to show 
 the amount of rent which the plaintiff had been 
 offered for it, d,nd also to show the relative value 
 of its furniture as compared with that of another 
 somewhat similar establishment, for the pur- 
 pose of showing that it was of too great value 
 to make it for the interest of the insured to de- 
 stroy it. Sup. Ct., 1875, Hotchkiss v. Germania 
 F. Ins. Co., 5 Hun, 90. 
 
 902. In an action on a policy of fire insurance, 
 it is not competent to inquire what class of per- 
 sons frequented plaintiff's house, where it is not 
 claimed that she so conducted it as to avoid the 
 policy. Com. App., 1872, Russell v. St. Nicholas 
 Fire Insurance Co., 51 N. Y. (6 Sick.) 643 ; Same 
 V. Metropolitan Ins. Co., id. 650. 
 
 903. In an action upon an open policy of insur- 
 ance covering all goods, lost or not, consigned 
 to the assured from certain ports, evidence that 
 neither the defendant or any other prudent un- 
 derwriter would have taken a certain risk 
 covered by it, if certain circumstances attending 
 it had been known at the time of issuing the 
 same, was properly excluded. N. Y. Supr. Ct., 
 1870, Baelker v. Great Western Ins. Co., 2 Sweeny, 
 275. 
 
 904. Where a- nominal rate of premium is 
 specified in a policy, which also provides for a 
 modification thereof at the time of indorsing a 
 particular risk, to conform to the rates of the 
 company, evidence of what would be a fair and 
 proper rate, in a case where the company had 
 refused to fix one or approve the risk, held inad- 
 missible, lb. 
 
 905. In an action on an insurance policy, where 
 the company sets up as a defense a breach of 
 the condition of the policy that any other in- 
 surance must be by consent of the company 
 written on the policy, the plaintiff may introduce 
 evidence to show a waiver of the conditions by 
 defendant's agent. Sup. Ct., 1872, Whitwell v. 
 Putnam Fire Ins. Co., 6 Lans. 166. 
 
 906. Under a general denial to a complaint 
 founded on a life insurance policy, by which the 
 plaintiff claims to recover, notwithstanding non- 
 payment of premiums, by virtue of a statute of 
 the State chartering the defendant company, 
 which makes its policies non-forfeitable during 
 a temporary term to be calculated upon the 
 amount of premiums paid, the age of the parties 
 at the time of lapse, and the assumptions of 
 mortality, — the testimony of an experienced 
 actuary to the effect that he had made compur 
 tations and deductions therefrom in accord with 
 the statute, and that the temporary term created 
 by the statute had expired before the death of 
 the assured, is admissible on the part of the de- 
 fendant. Ct. App., 1872, Greenfield v. Mass. Mut. 
 Life Ins. Co., 47 N. Y. (2 Sick.) 430. 
 
 907. On joint note. In an action upon a 
 joint promissory note, shown to have been pur- 
 chased by the plaintiff, a son of one of the joint 
 obligors, with the proceeds of real estate held by 
 his father in his own name, which, on sale, were 
 delivered to him partly in payment of a former 
 indebtedness and partly as a loan, — Held, that 
 evidence was admissible in behalf of the other 
 joint maker to show that the two were partners, 
 that it was agreed between them that the real 
 estate and the interest of the parties therein, 
 
 whether standing in the name of the one or the 
 other, should be for their joint benefit, that the 
 real estate in question was joint property, and 
 that the accounts in respect to it were entered 
 in the partnership books, as well for the purpose 
 of showing that the note was purchased with 
 joint funds, as upon the question of bona fides 
 between the plaintiff and liis father. Ct. App., 
 1873, Marvin v. Marvin, 53 N. Y. (8 Sick.) 607. 
 
 908. Malicious prosecution. In an action 
 to recover damages for a malicious arrest upon 
 a criminal charge, the plaintiff cannot properly 
 be permitted to give in evidence statements 
 made by himself to the police officer, not in the 
 "presence of, nor shown to have been communi- 
 cated to the defendant, before he made his affi- 
 davit on which the warrant of arrest was issued. 
 N. Y. Supr. Ct., 1873, Goodman v. Stroheim, 36 N. 
 Y. Supr. (4 J. & Sp.) 216. 
 
 909. In such action, the defendant, testifying 
 in his own behalf, may properly be asked and 
 answer the question, " Did you make this affi- 
 davit in good faith, believing everything you 
 stated in it was true ? " lb. 
 
 910. Malpractice. . In an action against a 
 physician for malpractice, it is not competent to 
 show tliat he had never, although a considerable 
 time had elapsed, presented any bill or asked any 
 pay for his services. Ct. App., 1872, Baird v. 
 Gillett,i1 N. Y. (2 Sick.) 186. 
 
 911. Negligence. In an action for injuries 
 sustained wiien getting out of an omnibus, proof 
 that as the plaintiff was getting out the horses 
 started up, and by reason thereof she was thrown 
 down and injured, is sufficient, -prima facie, to 
 show either that the horses were unsuitable for 
 the business or that the driver was incompetent 
 or negligent ; and in the absence of proof that 
 the horses were caused to start by something 
 beyond the control of the driver or the proprie- 
 tors, is sufficient to sustain a recovery by the 
 plaintiff. Ct. App., 1874, Roberts v. Johnson, 58 
 N. Y. (13 Sick.) 613 ; Aff'g S. C, 37 N. Y. Supr. 
 (5 J. & Sp.) 157. 
 
 912. In an action for damages for injuries sus- 
 tained by plaintiff, occasioned by striking against 
 a platform erected by the defendant upon the 
 sidewalk in front of her premises, where the 
 referee found that the erection was " improperly 
 and negligently constructed, and was a danger- 
 ous nuisance." Held, that the exclusion of evi- 
 dence that it was placed there by the permission 
 of the street commissioner of the city, and was ap- 
 proved by him after its erection, was no error. Ct. 
 App., 187.S, Kessel v. Butler, 53 N. Y. (8 Sick.) 612. 
 
 913. In an action against a municipal corpora- 
 tion for negligence, a resolution passed by its 
 common council and proved by the minutes of 
 their proceedings, is admissible in evidence 
 against it, as the official act of its agents. Ct. 
 App., 1871, Requa v. City of Rochester, 45 N. Y. (6 
 Hand,) 129. 
 
 914. In an action against a bank for the loss 
 of property deposited with it as a gratuitous 
 bailment, evidence of independent acts of negli- 
 gence not directly connected with tlie loss is not 
 admissible. Ct. App., 1875, First Nat. Bank of 
 Lyons V. Ocean Nat. Bank, 60 N. Y. (15 Sick.) 
 278 ; Rev'g S. C, 48 How. 148. 
 
 915. Evidence is not admissible to show that 
 the property was exposed to loss from some un- 
 usual cause, not known to the bank. lb. 
 
 916. In an action against a steamboat coiu- 
 pany for negligence, whereby the plaintiff in 
 passing along a gang plank was suddenly precip- 
 itated into the water and injured, evidence may 
 be introduced on the part of the plaintiff to show 
 
332 
 
 EVIDENCE. 
 
 that, since the accident, the defendant has used 
 a different kind of gang-plank, with large guards 
 upon the sides to prevent similar occurrences. 
 N. Y. C. P., 1872, Baldwin v. New York ^ Harlem 
 Nqv. Co., 4 Daly, 314. 
 
 017. In an action against a railroad company 
 for negligence, predicated in part upon the omis- 
 sion of a flagman usually stationed at a highway 
 crossing to give the customary signal of an ap- 
 proaching train, evidence of his intoxication on 
 that and previous occasions and that the officers 
 of the company knew of liis intemperate habits, 
 is incompetent. Hunt, C, dissents. Com. App., 
 1871, Warner v. New York Central R. R. Co., 44 
 N. Y. (5 Hand,) 465 ; Rev'g S. C, 45 Barb. 299^ 
 
 918. In an action against a railroad company 
 to recover for buildings claimed to have been 
 fired by defendant's engine, where evidence has 
 been given tending on the one side to exclude 
 the probability that the fire originated from 
 another source, and on the other to prove the 
 contrary, it is competent for the plaintiff to show 
 that^engines upon defendant's road have, on other 
 occasions, emitted sparks and coals, which fell 
 further from the track than the buildings de- 
 stroyed. Ct. App., 1874, Crist v. Erie RiUway 
 Co., 68 N. Y. (IS Sick.) 638. 
 
 919. In an action to recover damages for a loss 
 occasioned by fire alleged to have been set by 
 sparks from defendant's locomotive engine, evi- 
 dence of the dropping of coals and scattering of 
 sparks by other engines belonging to defendant, 
 and at other times than that wlien the injury 
 was done, is admissible. Sup. Ct., 1875, West- 
 fall V. Erie Ry. Co., 5 Hun, 75. 
 
 920. Evidence is also admissible, that, after 
 the fire, the defendant employed more trackmen 
 than before, and it is for tlie jury to say whether 
 that is not an admission that enough had not 
 previously been employed to prevent and extin- 
 guish fires. lb. 
 
 921. In an action against a railroad company 
 for negligently kindling a fire which spread to 
 plaintiff's land, evidence as to the presence of 
 coals on the track, at the time of the fire, or at 
 the place of the fire at another time not remote 
 therefrom, or immediately after the passage of 
 tlie particular engine claimed to have set the 
 fire, is pertinent and proper upon the question 
 of negligence. Ct. App., 1872, Webb v. Rome, 
 Watertown and Ogdensburg R. R. Co., 49 N. Y. 
 (4 Sick.) 420. 
 
 922. In an action against a railroad company 
 for injuries alleged to have been caused by a 
 defect in the road, evidence as to the condition 
 of the road half a mile distant from the accident 
 and of the putting in of new ties in the vicinity 
 afterward, and especially the next summer, is 
 incompetent. Church, Ch. J., and Peckham, 
 J., dissent. Ct. App., 1871, Reed v. N. Y. Central 
 R. R. Co., 45 N. y: (6 Hand,) 574; Eev'g S. C, 
 56 Barb. 493. 
 
 923. In an action against a railroad company 
 for negligence, resulting in personal injuries to 
 the plaintiff, where it appears that the accident 
 occurred while plaintiff was attempting to get 
 upon a train in motion and slowly passing a 
 station, evidence that he had before got on and 
 off at the same place, when the cars stopped no 
 more than at this time, and had knowledge that 
 they frequently did not stop any more, when 
 taken in connection with the fact that the cars 
 did stop on this occasion, would not excuse 
 his negligence, and its exclusion therefore is no 
 error. Ct. App., 1872, Phillips v. Rensselaer and 
 Saratoga R. R. Co., 49 N. Y. (4 Sick.) 177 ; 
 Eev'g S. C, 57 Barb. 642. 
 
 924. Evidence that a railroad company was 
 running its engine through the streets of a city 
 at a speed greater than is permitted by a city 
 ordinance, when a person crossing the road was 
 injured thereby, is evidence of negligence on 
 tlie part of the company, even though such ordi- 
 nance merely prescribes a penalty for the viola- 
 tion of its provisions. Ct. App., 1870, Beisegd 
 V. New York Central R. R. Co., 14 Abb. N. S. 
 29 ; S. C, before, 33 Barb. 429 ; 34 N. Y. (7 Tiff.) 
 622 j 40N. Y. (1 Hand,) 9. 
 
 925. In an action against a railroad company, 
 for injuries resulting from the negligence of one 
 of its employes, evidence of the intoxication of 
 such employe at the time of the accident, and of 
 his previous intemperate habits and the knowl- 
 edge of the company thereof, is competent for 
 the purpose of showing its gross carelessness, 
 with a view to exemplary damages. Ct. App.<. 
 1874, Cleghom v. N. Y. Central R R. Co., 56 N. 
 Y. (11 Sick.) 44. 
 
 926. In an action against a railroad company 
 by one of its employes, to recover for injuries 
 resulting from the negligence of a fellow-servant, 
 the defendant's superintendent was permitted to 
 testify that he reprimanded the latter for his 
 drinking habits, — Held proper, as bearing upon 
 the question of negligence in retaining such ser- 
 vant in the employ of the company. Ct. App., 
 1874, Chapman v. Erie Railway Co., 55 N. Y. 
 (10 Sick.) 579. 
 
 927. In such action, the declaration of the 
 superintendent to a third party, wlien referring 
 to the drinking habits of such fellow-servant, 
 that he " must quit that," — Seld, competent for 
 the purpose of showing notice to the company 
 of the incompetency of the man. lb. 
 
 928. In an action against a railroad company 
 for the death of one of its employes, alleged to 
 have been caused by the negligence of another 
 employe, the prior acts and conduct of the 
 latter on specific occasions may be given in evi- 
 dence, with proof that the company had knowl- 
 edge thereof, for the purpose of showing his 
 general unfitness and incapacity, and the negli- 
 gence of the company in retaining him in its 
 employment. Ct. App., 1874, Banlec v. New 
 York and Harlem R. R. Co., 48 How. 399; S. C, 
 59 N. Y. (14 Sick.) 456 ; Aff'g S. C, 12 Abb. 
 N. S. 310 ; 62 Barb. 623 ; 5 Lans. 436. 
 
 929. Such proof does not tend to establish the 
 negligence of suph employe on the particular 
 occasion which is the subject of inqjiiry. lb. 
 
 930. An individual who, by years of faithful 
 service as an employe, has shown himself trust- 
 worthy, vigilant and competent, is not proved 
 either incompetent, or careless and untrust- 
 worthy, or disqualified for further employment, 
 by a single mistake or act of forgetfulness and 
 omission to exercise the highest degree of cau- 
 tion and presence of mind. lb. 
 
 931. The admission of evidence that after an 
 accident Caused by a misplaced switch, the rail- 
 road company changed the character of its 
 switch, as tending to show the insufficiency of 
 the former one, is error. Sup. Ct., 1874, Suiters 
 v. Prest., etc. of the Del. and Hud. Canal Co., S 
 Hun, 338. 
 
 932. In an action to recover damages for in- 
 juries to plaintiff's business and the goods manu- 
 factured by him, caused by leakage of oil, &c., 
 from defendant's premises, the plaintiff cannot 
 show the extent of his business and the loss of 
 customers through depreciation of his goods, 
 arising from that cause, unless the complaint 
 alleges the names of such customers, or at least 
 the loss of customers, as an item of special dam- 
 
EVIDENCE. 
 
 333 
 
 age, in general terms. pN. T. Supr. Ct., 1878, 
 Stapenhorst v. American Manf. Co., 46 How. 510 ; 
 S. C., 15 Abb. N. S. 355; 36 N. Y. Supr. (4 J. & 
 Sp.) 392. , 
 
 933. In an action to recover damages for in- 
 juries caused by defendant's negligence, where 
 there is evidence tending to show that, after the 
 injury, the plaintiff movedabout some to attend 
 to business, and that a state of quietude and 
 rest would have been more favorable to his re- 
 covery, he may show that, acting in good faith, 
 lie consulted a competent physician, who ad- 
 vised liim to talse exercise, in order to rebut the 
 inference tliat he did not use proper care to miti- 
 gate the damage. Oom. App., 1874, Lyons v. 
 Erie Ey. Co., C7 N. Y. (12 Sick.) 489. 
 
 934. In an action for injuries caused by neg- 
 ligence, where the evidence shows that such in- 
 juries continued to exist up to the time of the 
 trial, the testimony of a physician as to the 
 plaintiff's condition at an intermediate time, 
 though four months after the injury was re- 
 ceived, is admissible. Sup. Ct., 1874, Dale v. 
 Brooklyn City H. P. and P. P. R. Co., 1 Hun, 
 146 ; Aff'd, 60 N. Y. (15 Sick.) 638. 
 
 936. On note to husband and -wife. In an 
 action by a widow against a co-executor of her 
 husband's will, on a note executed by the latter 
 to husband and wife in the hfetime of the 
 former, evidence is admissible to prove an 
 agreement between husband and wife for a pro- 
 vision by will for the latter in lieu of tlie note, 
 tlie performance of the agreement on his part, 
 and an acceptance by her and a turning of the 
 note out to appraisers as a part of the assets of 
 the estate, — ^for the purpose of showing that she 
 is not the real party in interest. Ct. App., 1871, 
 Sanfard v. Sanford, 45 N. Y. (6 Hand,) 728. 
 
 936. Obstructions, removal of. In an ac- 
 tion by one wlio is entitled to the use of land as 
 a street for the benefit of his lot, against his 
 grantor by whom such street and lot were laid 
 out, to compel the latter to remove a barn 
 which is an obstruction thereto, the plaintiff 
 may show a parol promise to remove it and its 
 breach, in order to show the propriety and ne- 
 cessity of the action, and as affecting the ques- 
 tion of costs. Sup. Ct., 1874, Taylor v. Eepper, 2 
 Hun, 046. 
 
 937. Against partners. Evidence that one 
 partner, applying for a loan, said that he want- 
 ed to borrow some money to use for the firm, 
 and offered to the lender the firm note as se- 
 curity, or a couple of ice wagons, the latter be- 
 ing his own individual property but that fact 
 being unknown to the lender, — Seld, sufficient 
 to sustain a finding that the loan was to the 
 firm. Com. App., 1870, Tremper v. Canklin, 44 
 N. T. (5 Hand,) 58. 
 
 938. Pilot, action by, for services. Evi- 
 dence that ^pilot spoke a vessel 10 miles from 
 Sandy Hook, and that from that point he could 
 see the vessel five or six miles on her course, 
 and no other pilot boat spoke her in that dis- 
 tance, is sufficient to sustain a finding that he 
 was the pilot first speaking or offering his ser- 
 vices, within the meaning of the Stat© law of 
 1857 (4 Edm. Stats. 83, § 29). N. Y. C. P., 1873, 
 Murray v. Clark, 4 Daly, 468. 
 
 939. Action for rent. The proceedings, 
 affidavits and evidence contained in the record 
 of summary proceedings for the removal of a 
 tenant after notice terminating the tenancy, are 
 not legal evidence of the lease, of the length of 
 the occupancy, or of the terms thereof, but are 
 merely evidence that the defendant's rights 
 have ceased, and that the plaintiff is entitled to 
 
 possession. Sup, Ct., 1876, Evans v. Post, 5 Hun, 
 338. 
 
 940. Under a complaint declaring upon a lease 
 without alleging use and occupation, where the 
 defense is want of title in the plaintiff, he may 
 show such use and occupation, not for the pur- 
 pose of recovering for that merely, but to show 
 that the tenant is estopped from denying his ti- 
 tle, and to sustain his right to recover upoti the 
 contract declared on. Com. App., 1872, Prevostv. 
 Lawrence, 51 N. Y. (6 Sick.) 219. 
 
 941. For royalties. In an action to recover 
 royalties agreed to be paid by defendants on all 
 sales to be made by them of a patented imple- 
 ment attached to machines of their own make, 
 of which sales they were to keep and render an 
 account, evidence of the number of machines 
 and implements manufactured and -shipped by 
 the defendants from their factory, is prima facie 
 evidence of their sale ; and evidence of the re- 
 turn of some of them, if of any avail at all, is 
 an answer only as to such as came back. Sup. 
 Ct., 1872, Marsh V. Dodge, 5 Lans. 541. 
 
 942. Action for seduction. In an action 
 by a father to recover damages for the seduc- 
 tion of his daughter, evidence that a short time 
 previous to the seduction the defendant prom- 
 ised to marry the daughter, is inadmissible. 
 Sup. Ct., 1871, Whitney v. Elmer, 60 Barb. 250. 
 
 943C Against stockholder. In an action 
 against a stockholder of a manufacturing cor- 
 poration, organized under the act of 1848, as 
 amended in 1853, whose stock was paid in prop- 
 erty purchased by the company for its business, 
 to enforce his personal liability for a debt of the 
 company, evidence of the value of the property 
 transferred, whether offered for the purpose of 
 showing fraud in the transaction and an evasion 
 of the law, or that the stockholder is not within 
 the protection of the latter act, by a transfer 
 for actual value, is, in either case, competent 
 and matcifial. Ct. App., 1872, Boynton v. Match, 
 47 N. Y. (2 Sick.) 225. 
 
 944. In summary proceedings. The due 
 service of the summons in summary proceedings 
 to recover possession of land may be proved by 
 the oral testimony of the constable who made 
 it, ev6n though he may have made a written re- 
 turn by affidavit. Sup. Ct., 1871, Robinson y. 
 McManns, 4 Lans. 880. 
 
 945. For -wrongful removal by summary 
 proceedings. In an action by a tenant to re- 
 cover damages for his unlawful removal by the 
 landlord by virtue of summary proceedings, af- 
 ter reversal of the decision therein on appeal, 
 the tenant can, under an averment of the con- 
 version of personal property, show the taking or 
 destruction of money on the premises by de- 
 fendant. N. Y. Supr. Ct., 1874, Eten v. Luyster, 
 37 N. Y. Supr. (5 J. & Sp.) 486. 
 
 946. Under an allegation that the defendant 
 " had thence hitherto deprived and kept the 
 plaintiff out of his land and premises," he may 
 show the value of the use of the premises for 
 that period. lb. 
 
 947. Under an allegation that the defendant 
 pulled down and destroyed a building erected 
 on said premises by the plaintiff and owned by 
 him as his personal property, the plaintiff may 
 show whether it was attached to the soil, or 
 could be removed without injury thereto. lb. 
 
 948. In an action for damages by one ejected 
 from demised premises in summary proceedings 
 before a justice of the peace, brought after re- 
 versal of the justice's adjudication by the Su- 
 preme Court, evidence as to the ground of re- 
 versal is incompetent. The statute (2 Edm. 
 
334 
 
 EVIDENCE— EXCISE LAWS. 
 
 Stats. 533), gives an absolute right of action on 
 reversal, without respect to the grounds. Com. 
 App., 1873, Hayden v. Florence Sewing Machine 
 Co., 54 N. Y. (9 Sick.) 221. 
 
 949. Trust, to enforce. In an action to en- 
 force a trust in lands and to compel an account- 
 ing, an answer made by the defendant in an- 
 other action, is admissible against him to estab- 
 lish such trust, if the trust be sufSciently mani- 
 fested in it. Com. App., 1870, Cook v. Barr, 44 
 N. Y. (5 Hand,) 156. 
 
 950. But an answer by a mortgagor in a fore- 
 closure action, that the mortgage in suit was 
 given for the accommodation of another, is no 
 evidence of a trust in favor of the latter in the 
 lands ; nor can this be supplemented by parol 
 testimony to show that the lands were conveyed 
 to such mortgagor upon that particular trust, 
 lb. 
 
 951. Trespass. In an action by an officer 
 against a stranger for wrongfully taking from 
 his possession goods, on which he had levied by 
 virtue of an execution, valid on its face and 
 issuing from a competent authority, proof of the 
 execution is sufficient, and it is not necessary 
 for him to show the validity of the judgment. 
 Sup. Ct., 1875, Clearwater v. Brill, 4 Hun, 728. 
 
 952. The defendant, in such a case, although 
 an officer having attachments against the ex- 
 ecution debtor, has no right to show the "inva- 
 lidity of the proceedings on which the execution 
 issued, even though the debtor might have the 
 right to do so. lb. 
 
 953. In an action of trespass against school 
 district trustees for acts done in the collection of a 
 tax irregularly levied by them, it is competent to 
 show, in addition to proof of the imposition of 
 the tax and the issuing of the warrant to collect 
 it, any other acts of interference by them in 
 taking and selling the plaintiff's property. Ct. 
 App., 187i, Jewell v. Van Steenburgh, 58 N. Y. (18 
 Sick.) 85. 
 
 954. In an action for a wrongful levy, where 
 the defendant justifies under process against a 
 
 ' corporation to which he alleges the property be- 
 longed, the plaintiff may prove in avoidance that 
 the property of the corporation had been vested 
 in a receiver before the levy. N. Y. C. P., 1874, 
 Chapman v. Douglass, 15 Abb. N. S. 421. 
 
 955. For -wages earned. In an action for 
 wages earned under a contract to work at a 
 specified price per month, testimony by the 
 plaintiff as to the day when he commenced 
 work and the day when he was discharged, the 
 time lost by him and the wages the defendant 
 agreed to pay, is sufficient to enable the court to 
 ascertain the amount due ; and if the witness 
 calculates the amount the court is not bound 
 thereby but can correct it if necessary. Sup. Ct., 
 1873, Crouse v. Garloch, 45 How. 78 
 
 956. On warranty. In an action on a war- 
 ranty, evidence is not admissible to show what the 
 goods sold were worth ; but the inquiry should 
 be as to the difference in value between the 
 goods as furnished and as agreed to be furnished. 
 Com. App., 1871, Leonard v. Fowler, 44 N. Y. (5 
 Hand,) 289. 
 
 EXCEPTIONS, BILL OF. 
 See Appeal ; Practice. 
 
 EXCISE LAWS. 
 
 1. Licenses. The excise laws, as now exist- 
 ing, do not authorize lioenses to sell strong and 
 spirituous liquors and wines (except ale and beer), 
 to be drank on the premises of the licensee, to be 
 granted to any person except an inn, tavern or 
 hotel keeper. Sup. Ct., 1874, O'Rourke v. People, 
 3 Hun, 225. 
 
 2. The act of 1869, (ch. 856), authorizes the 
 boards of excise to grant licenses for the sale of 
 ale and beer, in their discretion, to any person 
 applying therefor, and no restriction being im- 
 posed as to the place where such liquors may be 
 drank, persons so licensed may sell to be drank 
 on the premises. lb. 
 
 3. A license granted to a person not an inn, 
 tavern or hotel keeper, which attempts to license 
 him to sell strong and spirituous liquors and 
 wines, ale and beer, in quantities less than five 
 gallons, at his saloon, although void as to the 
 sale of other liquors, is yet valid as a license to 
 sell ale .and beer. lb. 
 
 4. Commissioners, appointment. Section 
 2 of ch. 175, Laws of 1870, which prescribes the 
 manner of appointment of commissioners of excise 
 for the several cities of the state, applies to all 
 subsequent as well as to the first appointments 
 under the act ; and such appointments are to 
 be made in the manner following, viz : in the 
 cities of New York and Brooklyn, by the 
 Mayor and board of aldermen as directed, in all 
 other cities, by the Mayor alone. Ct. App., 1874, 
 People V. Gates, 56 N. Y. (11 Sick.) 387. See 
 amendatory act, ch. 249, Laws of 1873. 
 
 5. — actions by. The county commissioners 
 of excise, under the act of 185T, were superseded 
 by the town commissioners appointed under the 
 act of 1870, and were by the latter act removed 
 from office, not only as respects their power to 
 grant licenses, but to prosecute for penalties. 
 Ct. App. 1871, Board of Excise of Ontario Co, v. 
 Garlinghouse, 45 N. Y. (6 Hand,) 249. 
 
 6. Actions for penalties, however, already com- 
 menced at the time of the passage of the latter 
 act, do not thereby abate, but may be continued 
 in the name of the new commfssioners as the 
 successors in office of the old ones ; and, until 
 the substitution, the actions may proceed in the 
 name of the original parties. lb. 
 
 7. Revocation of license. The board of 
 excise have power, under sec. 4, ch. 549, Laws of 
 1873, to revoke a license granted to any person 
 if they become satisfied that he has violated any 
 of the provisions of the act, and such person is 
 not entitled to a trial of that question by jury. 
 Sup. Ct., 1874, People ex rel. Beller v. Wright, 3 
 Hun, 306. 
 
 8. Whether or not the board has power to 
 administer oaths, when it becomes satisfied from 
 information before it, under oath or otherwise, 
 that the licensee has violated the law, it is its 
 duty to revoke the license. lb. 
 
 9. The conviction of one who has a license to 
 sell spirituous liquors, in a criminal proceeding 
 for a breach of the excise law, ipso facto, by the 
 express words of that act operates to revoke and 
 annul his license, and it can no longer afEord 
 him any justification or protection. Sup. Ct., 
 1875, People v. Tighe, 5 Hun. 25. 
 
 10. A conviction or judgment in an action for 
 a penalty, or upon a bond, under sees. 24, 25, 
 ch. 628, Laws 1857 (4 Edm. Stats. 53), does not 
 have that effect, but the proceeding for a revoca- 
 tion of the license prescribed by sees. 25, 26 of 
 that act must still be pursued. lb. 
 
 11. Act of 1857. The act rendering sec. 15, 
 
EXECUTION. 
 
 335 
 
 ch. 628, LawB of 1857 inapplicable to the city 
 of New York (ch. 378, Laws of 1866), was re- 
 pealed by ch. 175, Laws of 1870, and the former 
 statute restored, even though the reference there- 
 to was obscure. Sup. Ct., 1875, Schwab v. People, 
 4 Hun, 520. See amendatory act, ch. 549, Laws 
 of 1873. 
 
 12. Wine. It is not necessary, in order to con- 
 stitute the sale of wine an offense under that 
 statute, that it should be intoxicating. lb. 
 
 13. The civil damage law (ch. 646, Laws 
 1873), must be construed as part of the general 
 excise law, under which licenses are granted, and 
 persons accepting licenses take them subject to 
 the condition that they shall be liable in damages 
 for the injuries done by purchasers of liquors, if 
 intoxicated thereby. Sup. Ct., 1874, Baker v. 
 Pope, 2 Hun, 556. 
 
 14. Whether a license to sell could be given 
 in evidence, in mitigation of damages, is not clear, 
 but, if so, probably it would be admissible under 
 a general denial. lb. 
 
 15. An action for a penalty, under the pro- 
 visions of section 30, chap. 820, Laws of 1873, 
 cannot be brought by a private person, unless a 
 proper and suflScient complaint has been pre- 
 sented to the officers, whose duty it is to prose- 
 cute therefor, 10 days before the commence- 
 ment of the suit, with reasonable proof that the 
 penalty has been incurred, and they have ne- 
 glected or refused to prosecute ; and, on a mo- 
 tion by such officers to dismiss a suit com- 
 menced by a private person, denying such ne- 
 glect on their part, be must show the facts 
 giving him the right to prosecute. Sup. Ct., 
 1875, Reed v. Pease, 5 Hun, 564. 
 
 16. Damages from tmla-vrfiil sale. Under 
 the statute prohibiting the sale of intoxicating 
 liquors to habitual drunkards, and giving an ac- 
 tion for damages to any person injured by the 
 unlawful sale thereof (2 R. S. 5th Ed. 942-944), 
 a habitual drunkard to whom such sales have 
 been made, or, in case of his decease, his execu- 
 tors or administrators can sue the seller and 
 recover the damages to his property, or estate 
 sustained in consequence thereof, at least to the 
 extent of the money unlawfully received by the 
 defendant. Sup. Ct. Cir., 1874, Kilbum v. Coe, 
 48 How. 144. 
 
 EXECUTION. 
 
 I. FOKM ; WHEN ISSUABLE 335 
 
 II. Against pbkson 335 
 
 m. Against goods and chattels 836 
 
 1. Exemption. 
 
 2. Levy and Lien. 
 
 IV. Against eeal estate 338 
 
 1. What subject to. 
 
 2. Levy and sate. 
 
 V. Setting aside execution and sale . . 339 
 VI. Redemption 340 
 
 I. FOBM ; WHEN ISSUABLE. 
 
 1. Direotion. Although an execution is 
 directed on the inside " to the sheriff of the 
 county of county," yet, if the name of the proper 
 county is indorsed on the outside in connection 
 with the directions to levy, and it is delivered to 
 the sheriff of that county, its direction to such 
 sheriff sufficiently appears. Sup. Ct., 1874, 
 White V. Coulter, 1 Hun, 857. 
 
 2. Signature. It seems that an execution 
 issued upon a transcript from a justice's judg- 
 
 ment, and signed simply by the attorney for the 
 execution creditor, and not by the clerk of the 
 court, as required by section 64 of the Code, is 
 voidable only, and not void for the irregularity. 
 Com. App., 1873, Hill v. Baynes, 54 N. V. (9 
 Sick.) 153. 
 
 3. Against one. Although one holding a 
 judgment against two joint debtors, petitions for 
 the discharge of one of them, and adds his sig- 
 nature to the declaration of release under the 
 two-thirds act (2 R. S. 86, sec. 11 ; 2 Edm. Stats. 
 37), he may still have execution against the 
 property of the other debtor. Com. App., 1872, 
 Ellsworth v. Caldwell, 48 N. Y. (3 Sick.) 680. 
 
 4. Leave to issue. The authority conferred 
 by chap. 295, Laws of 1850, upon tlie surrogate, 
 in respect to allowing execution to issue against 
 the real estate and chattels real of a deceased 
 judgment debtor, is general and unqTialifled. 
 What constitutes sufficient cause for such allow- 
 ance is almost exclusively for the decision and 
 determination of the surrogate. Sup. Ct., 1875, 
 Allyn v. Thurston, 5 Hun, 105. 
 
 5. The act requiring leave to be obtained 
 from the surrogate before issuing execution 
 against the estate of a deceased judgment 
 debtor is cumulative, and makes such leave ne- 
 cessary in addition to the order of the court 
 where the judgment was obtained. Ct. App., 
 1872, Marine Bank of Chicago v. Van Brunt, 49 
 N. Y. (4 Sick.) 160; Aff'g S. C, 61 Barb. 361. 
 
 6. Before leave is granted to issue execution, 
 the claimants of property, sought to be applied 
 to the satisfaction of the judgment, and the per- 
 sonal representatives of the deceased, are entitled 
 to be heard, and should have notice of the ap- 
 plication, lb. 
 
 7. An execution cannot issue without the 
 order and permission of both tribunals ; but it 
 is immaterial to which the application is first 
 made, or whether it is made to both at the same 
 time. lb. 
 
 8. An execution issued after the death of the 
 defendant, upon a judgment recovered before 
 his death, is void, and a sale of real estate under 
 it confers no title upon the purchaser, even 
 though leave to issue it was obtained from the 
 surrogate. N. Y. Supr. Ct., 1875, Beard v. Sin- 
 nott, 88 N. Y. Supr. (6 J. & Sp.) 536. 
 
 9. To enforce such judgment against the 
 property of the defendant, it must first be revived 
 in the manner provided by section 379 of the 
 Code, and 'execution be issued upon the new 
 judgment in that proceeding, after leave ob- 
 tained from the proper surrogate. lb. 
 
 10. An execution issued by leave of court, 
 upon motion of the executor of the creditor, 
 after the lapse of 10 years from the rendition 
 of the judgment, is voidable, not void, and can- 
 not be questioned by one not holding under the 
 judgment debtor. Sup. Ct. Cir., 1872, Nims v. 
 Sabine, 44 How. 252. 
 
 11. As against the defendant in the execution 
 or trespassers in possession, a sale under such 
 execution would be good, whether the judgment 
 lien still existed or not. lb. 
 
 n. Against pbeson. 
 
 12. Wlien may issue. An execution against 
 the person of tlie judgment debtor can be issued 
 only after the return unsatisfied in whole or in 
 part of an execution against his property, and 
 only to a county within the jurisdiction of the 
 court. N. Y. Supr. Ct., Sp. T., 1874, Noe v. 
 Christie, 46 How. 496 ; S. C, 15 Abb. N. S. 346. 
 
 13. Action for conversion. Upon a judg- 
 
336 
 
 EXECUTION. 
 
 ment for plaintiff in an action for a cause en- 
 titling liim to an order of arrest against the 
 plaintiff, e. g. in an action against a bailee to 
 recover the proceeds of goods sold by him on 
 commission, where the complaint charges a 
 wrongful conversion of such proceeds, an execu- 
 tion may issue against the person of the defend- 
 ant, although no order of arrest had previously 
 issued. Sup. Ct., Sp. T., 1870, Lembke's Case, 11 
 Abb. N. S. 72. 
 
 14. Money received in fiduciary capa- 
 city. A complaint which alleges that the de- 
 fendant, as assignee for the benefit of creditors 
 of the plaintiff's debtor, had received a sura of 
 money, of which by the terms of the assignment 
 the plaintiff was entitled to a share, and that 
 the defendant, although requested, has refused 
 and neglected to pay over the same, states a 
 cause of action for money received in a fiduoiary 
 capacity, in which the defendant might be ar- 
 rested under section 179 of the Code, and upon a 
 judgment against him in such action an execu- 
 tion against his person may properly be issued. 
 Ct. App., 1873, Hoberts v. Prosser, 53 N. Y. (8 
 Sick.) 260 ; Bev'g S. C, 4 Lans. 369. 
 
 15. Although the answer contains denials ren- 
 dering it necessary to take an account for the 
 purpose of ascertaining the amount to which the 
 plaintiff is entitled, that does not change the 
 character of the action as one for money re- 
 ceived in a fiduciary capacity, so as to deprive 
 the plaintiff of the right to an execution against 
 the person of the defendant. lb. 
 
 16. No previous order of arrest. When 
 the cause of action stated in the complaint is 
 such that an order of arrest might be granted 
 without proof of any extrinsic fact, an execution 
 may go against the person of course ; and it is 
 only necessary to obtain a previous order of ar- 
 rest, where the cause of arrest is not identical 
 with the cause of action. N. Y. Supr. Ct., Sp. 
 T., 1873, Church of the Redeemer v. Crawford, 14 
 Abb. N. S. 200 ; See S. C, 36 N. Y. Supr. (4 J. 
 & Sp.) 307. 
 
 17. A recovery-of judgment against the de- 
 fendant in an action for moneys received by him 
 as treasurer of the corporation plaintiff, in the 
 course of his employment as such, where the 
 only question litigated was, whether the money 
 admitted to have been received by him belonged 
 to the corporation or to third persons, an execu- 
 tion may issue against the person although no 
 order of arrest had previously been granted. lb. 
 
 18. The complaint in this case does not suf- 
 ficiently charge a conversion, to entitle the 
 plaintiff to an order of arrest. N. Y. Supr. Ct. 
 1873, Rector, etc. of the Church of the Redeemer v. 
 Crawford, 36 N. Y. Supr. (4 J. & Sp.) 307. 
 
 19. Upon a motion to set aside an execution 
 against the person, where no previous order of 
 arrest has been made, no extrinsic facts may be 
 viewed, and the right to issue an execution 
 against the person depends solely upon the char- 
 acter of the complaint, except in a case where 
 the plaintiff has upon trial not attempted to 
 prove those matters which give the complaint 
 the character which justifies the issuing of an 
 execution against the person, although no pre- 
 vious order of arrest has been made. lb. 
 
 20. Must follow the judgment. An execu- 
 tion must in all respects follow the judgment 
 upon which it is founded, and be warranted by 
 it. Sup. Ct., Sp. T., 1873, Farmers ^ Mech's Nat. 
 bank V. Crane, 15 Abb. N. S. 434. 
 
 21. Thus, on a judgment against two, execu- 
 tion cannot be issued against the person of one 
 alone, even after the other has been discharged ; 
 
 but to exonerate one the plaintiff must indorse 
 on the execution a direction to the sheriff to that 
 effect. lb. 
 
 22. Suspends other proceedings to col- 
 lect debt. The taking of the body of the 
 judgment debtor on execution is a satisfaction 
 of the judgment so long as the imprisonment 
 continues, and suspends, during that time, all 
 proceedings against the debtor or his sureties on 
 a bond given upon the removal of the suit from 
 the District Court to the Court of Common 
 Pleas, conditioned for the payment of any judg- 
 ment recovered against him. Ct. App., 1874, 
 Koeniq v. Stechel, 58 N. Y. (13 Sick.) 475; Afi'g 
 S. C.,'36 N. Y. Supr. (4 J. & Sp.) 167. 
 
 23. A second execution issued against 
 the person of the judgment debtor to the sheriff 
 of one county, while he is in the custody of the 
 sheriff of another county under the first execu- 
 tion on the same judgment, will be set aside on 
 motion ; so also as to an execution on another 
 judgment so issued, where the jurisdiction of 
 the court and the fact that an execution against 
 property had previously been issued and return- 
 ed unsatisfied is not shown to sustain it. N. Y. 
 Supr. Ct., Sp. T., 1874, Noe v. Christie, 46 How. 
 496 ; S. C, 15 Abb. N. S. 346. 
 
 24. Discharge. A Court of Oyer and Ter- 
 miner has no power to discharge from imprison- 
 ment a person held in custody under execution 
 against his body, upon a final judgment in a 
 civil action, by a mere order made at the term ; 
 especially, where such execution is in due form, 
 and shows on its face that the defendant can be 
 "further legally detained." Sup. Ct., 1872, 
 People ex ret. Hewlett v. Brennan, 61 Barb. 540. 
 
 25. Where its original order of discharge is 
 void, it cannot afterward discharge the prisoner 
 on habeas corpus, on the ground that his impris- 
 onment subsequent to such order was illegal. lb. 
 
 26. When it appears upon a return to a writ 
 of habeas corpus that the prisoner is held undeft 
 execution issued upon a final judgment of a 
 competent court, it is the duty of the court to 
 remand him. lb. 
 
 27. Where such return shows that the pris- 
 oner is held upon civil process, and that some 
 other person, such as the plaintiff in the judg- 
 ment, is interested in his detention, eight days 
 notice must be given to such person or his attor- 
 ney of the time and place at which the writ is 
 returnable, otherwise the court has no power to 
 grant a discharge. lb. 
 
 28. A discharge in bankruptcy obtained after 
 judgment has been rendered against the bank- 
 rupt in an action for the price of goods sold, 
 wherein an order of arrest has been issued on 
 the ground of fraud in procuring the credit, and 
 the complaint alleges such fraud, does not dis- 
 charge the debt, and will not avail as ground 
 for the discharge of the defendant from execu- 
 tion on such judgment. Sup. Ct., 1875, Reid v. 
 Martin, 4 Hun, 690. 
 
 IIL Against goods and chattels. 
 
 1. Exemption. 
 
 29. A judgment, obtained by a debtor 
 against his creditor for an illegal seizure of 
 exempt property, takes the place of the property, 
 and should be protected as exempt, until a sirf- 
 ficient time has elapsed to afford the debtor a 
 reasonable opportunity to again purchase like 
 property. Com. App., 1872, Tillotson y. Wolcott, 
 48 N. Y. (3 Sick.) 188. 
 
 30. Necessary property. In an action to 
 
EXECUTION. 
 
 337 
 
 recover exempt property which has been taken 
 on execution against the owner, it is sufficient 
 for the plaintiff to show that he is a householder, 
 and that the property consisted ot his tools, ne- 
 cessary for his use in his trade, and was not 
 worth over $250, without showing whether he 
 had other property or not. N. Y. Supr. Ct., 1873, 
 Reinecke v. Flecke, 85 N. Y. Supr. (3 J. & Sp.) 491. 
 
 31. Purchase-money. All the articles enu- 
 merated as exempt from execution by sec. 1, 
 ch. 167, Laws 1842 (4 Edm. Stats. 626), are 
 nevertheless subject, under the amendments to 
 that act, to seizure and sale Upon execution 
 issued to collect the purchase-money of any 
 exempt property whatever. Sup. Ct., 1874, 
 Snyder v. Davis, 47 How. 147 ; S. C, 1 Hun, 
 850. 
 
 32. Sheep, which are the increase of a 
 lamb given to a child, and kept by her grand- 
 father, under an agreement that she should have 
 the increase, and he should have the wool for 
 the keeping, are not liable to execution against 
 the grandfather ; neither has he any title, which 
 is subject to levy and sale, in the wool growing 
 on such sheep, until he has performed his entire 
 contract for keeping them till shearing time, a 
 mere part performance not giving him any title. 
 Sup. Ct., 1871, ETasbrouck v. Bouton, 41 How. 
 208; S. C, 60 Barb. 413. 
 
 33. Team. A judgment debtor who has two 
 teams working in his business, may claim either 
 as exempt from execution, &c., under the statute, 
 not exceeding in value the statutory limitation, 
 and it is his right to make the choice and des- 
 ignation. N. Y. Supr. Ct., 1871, Firmin v. 
 Malloy, 38 N. Y. Supr. (1 J. & Sp.) 382. 
 
 34. A single horse, or other animal, trained 
 and used by the judgment debtor for his work 
 or service, is a working team, within the exemp- 
 tion of the statute, although not associated or 
 used with any carriage, harness or other ap- 
 pendage, lb. 
 
 35. A single horse and his harness are 
 exempt from execution, as " a team," within the 
 meaning of ch. 134, Laws of 1859 ; even though 
 on the day of the levy the debtor may have had 
 no use for such horse, and did not know when or 
 how he should next make him useful. Sup. Ct., 
 1875, Cogsdill V. Brovim, 5 Hun, 341. 
 
 36. A Tvatoh, not shown to be necessary 
 to the defendant's use in his vocation, is liable 
 to execution. Sup. Ct., 1873, Deposit Nat. Bank 
 T. Wickham, 44 How. 421. 
 
 2. Levy and Lien. 
 
 37. Duty of officer. The delivery of an ex- 
 ecution to a sheriff's deputy is a delivery to 
 the sheriff and makes him liable for a failure to 
 collect the same through the negligence or mis- 
 conduct of the deputy. Ct. App., 1875, Smith v. 
 Smith, 60 N. Y. (15 Sick.) 161. 
 
 38. It is the duty of a constable having an 
 execution to levy it upon property of the judg- 
 ment debtor, and it is not necessary for him to 
 first call on the latter to ascertain what he 
 claims as exempt, but it is for the latter to claim 
 his exemption within a reasonable time after 
 notice of the levy, otherwise he waives it. Sup. 
 Ct., VSll,Twinam v. Swart, 4 Lans. 263. 
 
 39. A constable, having in his hands execu- 
 tions, valid on their face and issuing from a 
 competent authority, is bound to execute them 
 by taking the property of the defendant, even 
 though he has knowledge of facts rendering 
 them void; Sup. Ct., 1876, Clearwater v. Brill, 4 
 Hun, 728." 
 
 22 
 
 40. Actual possession of the goods under such 
 an execution is sufficient to enable the officer to 
 maintain an action against a stranger who takes 
 them from his possession. lb. 
 
 41. Bcink shares, or other property not cap- 
 able of manual-delivery, which was at the com- 
 mencement of the action the subject of litiga- 
 tion, and was not legally attached therein, cannot 
 be sold on execution upon the judgment in such 
 action. Sup. Ct., 1875, Pardee v. Leitch, 6 Lans. 
 303. 
 
 42. Debt on account. A debt due on ac- 
 count is a mere chose in action, and as such is ex- 
 pressly excepted by subd. 2, sec. 237 of the Code, 
 from liability to sale on execution. It is the duty 
 of the sheriff to collect such debt when levied on 
 by him, and apply the proceeds to the payment 
 of the judgment. Sup. Ct., 1872, Clark v. War- 
 ren, 7. Lans. 180. 
 
 43. Interest of licensee. One who is en- 
 titled to the possession and use of personal prop- 
 erty for a year, paying monthly sums as rent, 
 under a written contract which limits his rights 
 to a particular use and no other, and prohibits 
 him from selling or loaning, is not a lessee but 
 a mere licensee, and he has, no interest which is 
 subject to attachment or execution. Sup. Ct., 
 1872, Reinmiller v. Skidmwe, 7 Lans. 161. 
 
 44. Mortgaged chattels. Before default in 
 performance of the condition of a mortgage of 
 chattels, the mortgagor has an interest in the 
 property which is subject to levy and sale on 
 execution ; but after default he has no leviable 
 interest therein, if the mortgage is valid against 
 him. N. Y. Supr. Ct., 1872, Porter v. Parmly, 
 43 How. 445; S. C, 34 N. Y. Supr. (2 J. & Sp.) 
 398 ; 13 Abb. N. S. 104. Rev'd, S. C, 14 Abb. 
 N. S. 16 ; 52 N. Y. (7 Sick.) 185. 
 
 45. A creditor who did not obtain his judg- 
 ment until after a cliange in possession of the 
 property had taken place, cannot hold the prop- 
 erty on execution, although one year from the 
 filing of the mortgage had previously expired, 
 and it had not been refiled. lb. 
 
 46. A delivery to the mortgagor's partner, 
 botli partners continuing to use the property as 
 before, is not such a change or possession as de- 
 prives the creditor of the right to sell on execu- 
 tion. Ct. App., 1873, S. C, 14 Abb. N. S. 16. 
 
 47. A sale upon execution in a case where the 
 mortgage has not been reflled, nor possession 
 olianged, of " all the right, title and interest " of 
 the mortgagor in the mortgaged chattels, is not 
 a sale subject to the mortgage ; but it passes all 
 that is vendible on execution against the defend- 
 ant, including the right of the execution cred- 
 itor to treat the mortgage as void for omission to 
 refile it. lb. 
 
 48. Wife's property. Upon the marriage in 
 England of citizens of that country, the personal 
 property of the wife became the property of the 
 husband, and although he may have permitted 
 her to retain possession of it, or to invest it in 
 trade, or in other property, it, or that into which 
 it had been converted, would still belong to him, 
 and be liable to levy and sale on execution 
 against him. Sup. Ct., 1861, Stokes v. Macken, 
 62 Barb. 145. 
 
 49. Indorsement of levy. The statute re- 
 quiring a constable levying on property by vir- 
 tue of an execution from justice's court, to 
 indorse the same upon the execution (2 Edm. 
 Stats. 269), is directory merely, and his failure 
 to indorse it is not fatal to the levy. Sup. Ct., 
 1875, Havens v. Gordon, 5 Hun, 178. 
 
 50. Lien of. Although the goods and chattels 
 of an execution debtor ara bound by the exeou- 
 
338 
 
 EXECUTION. 
 
 tion from the time of its delivery, for the bene- 
 fit of the judgment creditor, so as to secure to 
 him a lien thereon, yet, for the purpose of 
 enforcing such lien and obtaining satisfac- 
 tion thereof, it is necessary that the officer 
 make an actual levy and sale ; and no " con- 
 structive levy " can arise or be presumed from 
 the mere fact of the delivery of the execution 
 to him, without any act or proceeding by him 
 under it before the return day thereof, so as to 
 authorize him after that day to seize upon and 
 make sale of the property. Com. App., 1873, 
 Hathaway v. Howell, 54 N. Y. (9 Sick.) 97. 
 
 51. Executions against a partnership, levied 
 upon property of the firm, become liens thereon 
 prior to the lien of an execution against individ- 
 ual members of the firm previously levied upon 
 their interest in such property ; and if they ex- 
 haust the property, the slieriffi will be justified, 
 in the absence of other property to levy upon, 
 in returning such previous execution nulla bona. 
 Ct. App., 1872, Eighth National Bank of New 
 York V. Fitch, 49 N. Y. (4 Sick.) 539. 
 
 52. When goods are in the hands of an officer 
 by levy under execution, no other officer has a 
 right to take them away, although he may levy 
 on them. Sup. Ct., 1875, Clearwater v. Brill; 4 
 Hun, 728. 
 
 53. Priority. If a judgment recovered by de- 
 fault against several defendants as partners, is 
 opened, and set aside and the complaint dis- 
 missed as to one of them, on his application, the 
 plaintiff in such action is not entitled to money 
 previously collected on his execution by sale of 
 partnership property, but an attaching creditor 
 whose judgment is next in order of time, is en- 
 titled to receive it. Sup. Ct., 1874, Phillips v. 
 Wheeler, 2 Hun, 603. 
 
 54. Sale in parcels. A sale on execution of 
 a large number of articles of personal property 
 should be made in lots and parcels so as to se- 
 cure the highest price. A sale in one parcel, 
 when the interest of the debtor is not that of 
 pledgor, is in violation of the statute, and will 
 be set aside. N. Y. Supr. Ct., Sp. T., 1874, Mor- 
 gan V. HoUaday, 48 How. 86 ; S. C, 38 N. Y. 
 Supr. (6 J. & Sp.) 53 ; AfE'd, id. 117. 
 
 55. A sheriff who levies upon a number of 
 articles of personal property, by virtue of one 
 or more executions, is bound to sell the same in 
 parcels ; especially where he holds several exe- 
 cutions in which different parties are interested. 
 Sup. Ct., 1874, Tugwell v. Bussing, 48 How. 89. 
 
 56. Setting aside. The court has power to 
 entertain a motion to set aside a sale by a sheriff 
 of personal property under an execution, and 
 will set it aside when sufficient grounds there- 
 for appear and no substantial right will be pre- 
 judiced by so doing. N. Y. Supr. Ct., Sp. T., 
 1874, Morgan v. HoUaday, 48 How. 86 ; S. C, 38 
 N. Y. Supr. (6 J. & Sp.) 53 ; Affi'd, id. 117. 
 
 57. A sheriff's sale of a large quantity of 
 furniture, in the possession of a lessee of the 
 execution defendant and subject to his lease, in 
 one parcel, and a large portion of it not present 
 and within view of those attending the sale, is 
 in violation of the statute, and should be set 
 aside on motion, and the sheriff be directed 
 to restore the bid, still in his hands, to the pur- 
 chaser, lb. 
 
 IV. Against keal estate. 
 
 1. What subject to. 
 
 58. After ten years. Although the lien of a 
 judgment upon the real estate of the debtor 
 
 ceases after 10 years from the time it was 
 docketed, at least as to subsequent purchasers 
 and incumbrancers, and possibly as to the debtor 
 himself, yet, the creditor has the right to sell on 
 execution, issued afterward, the real estate of 
 the debtor then belonging to him, and the sale 
 will vest the title in the purchaser. N. Y. Supr. 
 Ct., 1872, Beard v. Sinnott, 35 N. Y. Supr, (3 J. 
 & Sp.) 51. 
 
 59. An easement to occupy land for a dam, 
 conveyed by deed with a provision for forfeiture 
 in case of any breach or failure to perform the 
 conditions of the grant, may be sold on execu- 
 tion against the grantee, and his rights will 
 thereby be terminated. Sup. Ct., 1875, Evan- 
 gelical Lutheran St. .John's Orphans Home, etc. v, 
 Buffalo Hydraulic Asso., 4 Hun, 419. 
 
 60. Equity of redemption. A mortgagor of 
 lands in this State, even after default and after 
 possession taken by the mortgagee, retains tlie 
 legal title, and his interest is subject to sale 
 upon execution. Gkat, C, dissents. Com. App., 
 1874, Trimm y. Marsh, 54 N. Y. (9 Sick.) 599; 
 Aff'g 3 Lans. 509. 
 
 '61. Estate by entireties. A husband's in- 
 terest in lands conveyed to himself and wife is 
 subject to levy and sale on execution against 
 him ; and, where such sale is not made with 
 reference to the contingency of a divorce, the 
 purchaser is not affected by a subsequent divorce 
 a vincuhfihvit becomes invested with the right to 
 occupy and enjoy the profits of the land as 
 owner, during the joint lives of husband and 
 wife. If the husband survives tlie wife, such 
 purchaser becomes the absolute owner of the 
 whole estate, but if the wife survives the hus- 
 band, she takes the estate free from all claims 
 against her husband. Sup. Ct., 1875, Beach v. 
 Hollister, 3 Hun, 519. 
 
 62. A reversionary interest in real estate 
 may be sold on execution against the rever- 
 sioner, although the extent of such interest can- 
 not be ascertained at the time of the sale, and 
 the whole reversion may be contingent upon the 
 happening of events which may never occur. 
 Com. App., 1870, Woodgate v. Fleet, 11 Abb. N 
 S. 41 ; S. C, 44 N. Y. (6 Hand,) 1. 
 
 2. Levy and sale. 
 
 63. Delaying sale. It is the right of a sheriff 
 to postpone a sale of property on execution, 
 from time to time, and for such a length of time 
 as he may deem proper ; and he is bound, with- 
 out compensation, to give every indulgence con- 
 sistent with obedience to his process, but he 
 may not, for his own gain, bind himself by a 
 contract not to sell for such a period of time as 
 will prevent him from obeying the command of 
 his process. Sup. Ct., 1862, Perkins v. Proud, 
 62 Barb. 420. 
 
 64. An agreement between a sheriff, and a 
 person interested in property levied on, that if 
 the former will delay the sale of such property 
 the latter will pay and discharge the judgments, 
 and satisfy the executions, and will indemnify 
 and save the sheriff harmless from all loss, costs, 
 damages and expenses that he may sustain or 
 suffer In consequence of such delay, is illegal and 
 void. lb. 
 
 65. If the property levied on is destroyed by 
 fire while the sale is delayed on such an agree- 
 ment, the sheriff has no claim upon an insur- 
 ance, effected by the party desiring the delay, 
 on his own interest in the property. lb. 
 
 66. Sale in parcels. It is the "duty of the 
 sheriff to learn the situation of the property be- 
 
EXECUTION. 
 
 339 
 
 fore he sells, and to sell in obedience to the di- 
 rections of the statute as to selling in parcels. 
 N. Y. Supr. Ct., Sp. T., 1875, O'Donnelt v. Lind- 
 say, 39 N. Y. Supr. (7 J. & Sp.) 523. 
 
 67. In some cases, the facts will be such as to 
 require him to exercise a discretion which is 
 judicial in its nature ; and an honest exercise of 
 that discretion by him is final. lb. 
 
 68. If the sheriff does not exercise that dis- 
 cretion at all, when he might so exercise it as to 
 sell only a part of the land, but relies wholly on 
 the purchaser for information, the sale. should 
 be treated as void. lb. 
 
 69. Whether the sheriff could properly exer- 
 cise his discretion as to a city lot 25 feet by 
 100 feet in size, even where two buildings are 
 erected upon it, one in the rear of the other and 
 separated from it by a space of 20 feet, but 
 reached by a narrow alley, partly through the 
 front building, which are rented separately, and 
 sell only a part, query f lb. 
 
 70. It is the duty of the sheriff to sell prop- 
 erty levied upon by him in parcels, when it can 
 be so sold, and not all together, and if he fails to 
 do so and thereby occasions a loss to another 
 execution creditor, he is liable therefor. Sup. 
 Ct., 1874, Tugwell v. Bussing, 2 Hun, 160. 
 
 71. The failure of the sheriff to obey the stat- 
 ute in relation to a sale in parcels does not ren- 
 der the sale void, but it is merely voidable at 
 the instance of the aggrieved party. N. Y. Supr. 
 Ct., Sp. T., 1875, O'Donnell v. Lindsay, 39 N. Y. 
 Supr. (7 J. & Sp.) 523. 
 
 72. Such non-performance, if a cause for set- 
 ting aside a sale as against a purchaser who had 
 notice of it, is much more so as against one who 
 requested and induced tlie sheriff to make the 
 sale in the manner he did. lb. 
 
 73. Title of purchaser. A sale of real estate 
 which has been attached in the suit, under an 
 execution in tlie form prescribed by statute, 
 confers no greater title than the judgment debt- 
 or had at the time the judgment was docketed. 
 Sup. Ct., 1872, Lamont v. Cheshire, 6 Lans. 234. 
 
 74. Irregularities, effect of. The neglect of 
 the sheriff to return his execution, or its loss by 
 carelessness, cannot invalidate the title of a pur- 
 chaser at a regular sale of land under such exe- 
 cution. Sup. Ct., 1873, Phillips v. Shiffer, 14 
 Abb. N. S. 101 ; S. C, 7 Lans. 347 ; 64 Barb. 548. 
 
 76. A sheriff, by giving a deed of land sold by 
 him on execution, which recites an assignment 
 of the certificate of sale and conveys the land to 
 the assignee, without requiring the proof and 
 filing of the assignment pursuant to the statute, 
 thereby waives those formalities ; and the title 
 of the purchaser will not be affected by the 
 omission of .such proof and filing. lb. 
 
 76. The regularity of a sale is not affected by 
 the fact that six full weeks have not intervened 
 between the date of the first publication of the 
 notice and the day fixed for the sale. A pubU- 
 cation once in each week, for six weeks before 
 the sale, is a compUance with the statute (2 
 Edm. Stats. 382, sec. 34). Ct. App., 1871, Wood 
 V. Morehouse, 53 N. Y. (6 Hand,) 368 j Aff'g S. 
 C, 1 Lans. 405. 
 
 77. A deed issued to an assignee of the certif- 
 icate of sale, or to one who has acquired the 
 rights of an assignee as a creditor, under the 
 statute, is valid, although the assignments have 
 not been proved, acknowledged, or filed. lb. 
 
 78. The act requiring those formalities is for 
 the protection of the sheriff, and a compliance 
 with it may be waived by him. lb. 
 
 79. The production by a junior creditor, to 
 the holder of a sheriff's certificate of sale, of 
 
 evidence of his right to redeem, may be waived 
 by the latter, and the acceptance of the money 
 and assignment of the certificate arfe conclusive 
 evidence, in a collateral proceeding, of such 
 waiver. No person can object, on that account, 
 to the regularity or validity of a deed executed 
 to such assignee, except the person who, but 
 for the assignment, would have been entitled to 
 receive it. lb. 
 
 V. SETTIN& ASIDE EXECUTION AND SALE. 
 
 80. Po-wer of Supreme Court. The Su- 
 preme Court has complete power and control 
 over the proceedings and process in a suit pend- 
 ing in that court, and may set aside an exe- 
 cution against the person issued upon a judg- 
 ment therein. Sup. Ct., 1871, Pinckney v Hag- 
 erman, 4 Lans. 374 ; Aff'd, S. C, 53 N. Y. (8 
 Sick.) 31. 
 
 81. This it may do even after the arrest and 
 imprisonment of the judgment debtor under the 
 execution, that, although executed, not being 
 annulled, but remaining in force as the authority 
 justifying the detention of the prisoner. lb. 
 
 82. An order setting aside suol»''an execution 
 takes away the authority for the detention of 
 the defendant and obligates his release, and the 
 order, if valid on its face, will justify the ofiBcer 
 in releasing him. lb. 
 
 83. An order of the Supreme Court setting 
 aside an execution and discharging the defend- 
 ant from custody, is valid, though irregularly 
 made in a wrong county and without the notice 
 required by statute. lb. 
 
 84. Against minor. There must be some 
 limitation to the time within which a motion 
 can be made to set aside an execution, on the 
 ground that the defendant was a minor when 
 the judgment was recovered, and the old limit- 
 ation of two years after coming of age is liberal. 
 Sup. Ct., Sp. T., 1872, Barnes v. Gilt, 13 Abb. 
 N. S. 169. 
 
 85. Against property not attached. A 
 proceeding by way of attachment, when the de- 
 fendant is not served and does not appear, is in 
 the nature of a proceeding in rem, and an execu- 
 tion upon judgment therein, issued against and 
 attempted to be levied upon other property than 
 that attached, should be set aside for irregu- 
 larity. N. Y. C. P., 1871. Goodkind v. Strickland, 
 8 Daly, 420. 
 
 86. Judgment irregular. After a transcript 
 of a judgment of the Marine Court has been 
 filed with the county clerk, the enforcement 
 thereof rests exclusively with the Court of Com- 
 mon Pleas ; and that court will set aside an exe- 
 cution issued on such judgment, for irregularity 
 in referring such case and in bringing it on to 
 trial on one day's notice, where all the facts are 
 before the court, and both parties have been 
 fully heard. N. Y. C. P., Sp. T., 1870, Leland v. 
 Smith, 11 Abb. N. S. 231 ; Modified, S. C, 3 
 Daly, 309. 
 
 87. Violation of stipulation. An execution 
 issued upon a judgment in violation of a stipu- 
 lation of parties staying proceedings therein 
 pending an appeal, should be set aside on mo- 
 tion. Sup. Ct., 1874, Murphy v. Keyes, 48 How. 
 118; S. C, 2 Hun, 375. 
 
 88. Judgment modified. If a judgment is 
 modified on appeal, by reduction of the amount 
 of the damages, after taxation of costs including 
 interest on the whole amount of the origmal 
 damages, and execution be issued for the dam- 
 ages as modified and the cost? so taxed, the 
 Supreme Court has power, and will, on appli- 
 
340 
 
 EXECUTION. 
 
 cation of the judgment debtor, order the sheriff 
 to return the execution satisfied on payment to 
 him of his fees and the amount due on the exe- 
 cution, after deducting the interest on the 
 amount deducted from the damages. Sup. Ct, 
 1872, Mann v. N. Y. Central, etc. E. B. Co., 12 
 Abb. N. S. 380. 
 
 89. Perpetual stay. Where land is pur- 
 chased, in good faith and for a valuable consider- 
 ation, and a conveyance taken, while a judgment 
 docketed against the grantor, and which would 
 be a lien thereon, stands properly cancelled on 
 the docket after reversal on appeal, the subse- 
 quent reversal of the latter decision by the 
 Court of Appeals will not restore the lien of the 
 judgment upon such land ; but the court will, 
 on application of the purchaser, perpetually stay 
 the plaintiff from all attempt to sell such land 
 on his judgment. Sup. Ct., 1873, Foot v. Dillaye, 
 65 Barb. 521. 
 
 90. Setting aside sale. The rule, that a 
 party whose land has been irregularly sold must 
 seek his remedy by motion in the same action, 
 applies only where the judgment specially pro- 
 vides for a sale. In other cases he may seek 
 and obtain ?elief by action in equity. N. Y. 
 Supr. Ct., Sp. T., 1875, O'Donnell v. Lindsay, 39 
 N. Y. Supr. (7 J. &Sp.) 523. 
 
 91. Traudulent combination. Where, by 
 means of a fraudulent combination between the 
 attorney for a judgment creditor and the pur- 
 chaser, real estate of the value of $13,000 was 
 sold on execution for $180, that sum being con- 
 siderable more than the judgment and costs of 
 sale, and leases, mortgages and deeds were after- 
 ward given, fair and valid on their face, but in 
 fact wholly fictitious, and intended merely to 
 prevent the judgment debtors from recovering 
 back their property, and they were kept for a 
 long time in ignorance of the sale, and there was 
 a suspicious omission to call available and proper 
 witnesses to sustain the bona fides of the trans- 
 action and explain the suspicious circumstances, 
 — Held, that a judgment setting aside the sale 
 and subsequent conveyances was proper, al- 
 though the original judgment, execution and 
 sale were fair and regular on their face. N. Y. 
 Supr. Ct., 1875, Bruce v. Kelly, 39 N. Y. Supr. 
 (7 J. & Sp.) 27. 
 
 92. Inadequacy of price, though great, is 
 not of itself sufficient cause for setting aside a 
 sale ; but it will be sufficient with some addi- 
 tional circumstance, such as that the plaintiff 's 
 attorney furnished the description by which the 
 property was sold, and himself became the pur- 
 chaser ; or that the description so furnished by 
 him is not sufficiently certain for the purposes of 
 the notice of sale required by statute. N Y. 
 Supr. Ct., Sp. T., 1875, O'Donnell v. Lindsay, 39 
 N. Y. Supr. (7 J. & Sp.) 523. 
 
 93. The purchaser in such a case will be 
 deemed to hold the property as trustee for the 
 owner. lb. 
 
 VI. Hedbmption. 
 
 94. Place of. Since the act of 1847 (ch. 410), 
 a redemption by a creditor, on the last day al- 
 lowed for redeeming, to be valid and effectual 
 must be made at the sheriff 's office of the county 
 in which the sale took place, and not elsewhere. 
 Sup. Ct., 1874, Morss v. Purvis, 2 Hun, 542. 
 
 95. A redemption made before the last day of 
 the 15 months after the sale, — Held, valid, though 
 not made in the county in which the sale took 
 place. Sup. Ct., 1872, Rice v. Davis, 7 Lans. 
 
 96. By vT-hom. If the redemption of land 
 sold on execution is invalid, as being made os- 
 tensibly by a judgment creditor, but really by 
 a trustee for the execution debtor, after the ex- 
 piration of the time allowed the latter to redeem, 
 the purchaser at the execution sale would be 
 entitled to have his equitable title consummated 
 by a conveyance from the sheriff, notwithstand- 
 ing he may have received the redemption money ; 
 consequently, his title will not be affected by the 
 invalidity of the redemption, even though he 
 takes a conveyance from the person by whom it 
 was made. Sup. Ct., 1874, Ten Eyc\ v. Craig, 
 2 Hun, 452. 
 
 97. The judgment debtor, whose land has 
 been sold on execution against him, has a right, 
 under the statute (2 R. S. 370 ; 2 Edm. Stats. 
 384), to redeem the same as therein provided, 
 whether he still retains an interest in the land 
 or not ; consequently, the fact that he has, sub- 
 sequent to the sale, conveyed to a receiver, ap- 
 pointed by an order of court for the benefit of 
 creditors, is no objection to a redemption by 
 him. Sup. Ct., Sp. T., 1873, Elsworth v. Muldoan, 
 46 How. 246 ; S. C, 15 Abb. N. S. 440. S. P., 
 Livingstone v. Arnoux, 15 Abb. N. S. 158 ; Aff'd, 
 56 N. Y. (11 Sick.) 507 ; Bowers v. Arnoux, 33 
 N. Y. Supr. (IJ. &Sp.)530. 
 
 98. The redemption is complete when the 
 money necessary is paid to the sheriff within 
 the time required by statute ; and his receipt 
 therefor, showing particularly for what it was 
 paid, is sufficient though not proved, acknowl- 
 edged or filed. lb. 
 
 99. The provisions of ch. 410, Laws 1847, ap- 
 ply only to redemptions by creditors, where the 
 debtor or those claiming under him have failed 
 to redeem. N. Y. C. P., 1873, Livingstone v. Ar- 
 noux, 15 Abb. N. S. 158 ; Aff'd, 56 N. Y. (11 
 Sick.) 507. 
 
 100. By judgment creditors. The filing 
 and record of a notice of exemption after the 
 docketing of a judgment on which the premises 
 claimed as a homestead are afterwards sold, 
 does not affect the right of other judgment cred- 
 itors, whose judgments were docketed within 15 
 months after the sale, to redeem therefrom. 
 Sup. Ct., 1872, Rice v. Davis, 7 Lans. 393. 
 
 101. Under several judgnients. A re- 
 demption of premises sold on execution, by a 
 creditor claiming to redeem under several judg- 
 ments against the debtor, which have been as- 
 signed to him, is valid, at least so far as the 
 debtor is concerned, if one of such judgments 
 was properly certified to the sheriff. lb. 
 
 102. An affidavit made for the purpose of re- 
 deeming on all the judgments, which states the 
 amount due on each, is sufficient to sustain a 
 redemption under the properly certified judg- 
 ment. Even though a creditor redeeming from 
 such first redeeming creditor might not be re- 
 quired to pay the amount of all the judgments, 
 yet, it is questionable whether the debtor could 
 raise that objection to the redemption. lb. 
 
 103. An affidavit by a person seeking to re- 
 deem as assignee of several judgments, that the 
 affiant " is the person to whom the above several 
 described judgments are assigned, and that the 
 same are true copies of the original assignments 
 of such judgments," that he " carefully compar- 
 ed them with such original assignments, and 
 that they are true copies of such original assign- 
 ments," held to be in substantial compliance 
 with the statute. Slight variations are not re- 
 garded as fatal. lb. 
 
 104. Certificate of. A written receipt 
 given by the sheriff, after making a sale of land 
 
EXECUTORS AND ADMINISTRATORS. 
 
 341 
 
 on execution and giving a certificate thereof, to 
 the effect that he has received the full amount 
 of the purchase-money and interest at 10 per 
 cent, from the defendant in the execution, for 
 the purpose of redeeming the property sold, is 
 substantially a certificate of redemption, such 
 as he is required by § 5, ch. 410, Laws of 1847 (4 
 Edm. Stats. 630), to give to the person making a 
 redemption,; and it is not necessary to have it 
 proved, acknowledged or recorded, in order to 
 make it evidence of the redemption. N. Y. 
 Supr. Ct., 1871, Bowers v. Amoux, 33 N. Y. Supr. 
 (1 J. & Sp.) 530. 
 
 106. Upon the execution of such a receipt, 
 the sale and the sheriff's certificate thereof be- 
 come null and void, and the premises sold revert 
 to or revest in the defendant in the execution as 
 if it had never been sold on execution. Spen- 
 cer, J., dissents. lb. 
 
 See Pbactiob, VI. 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 L JUMSDIOTIOlf ; LETTEK8 ; BOND 341 
 
 n. Assets, powbbs and duties 342 
 
 in. Sales op real estate 342 
 
 IV. Actions and proceedings by and 
 
 against 343 
 
 V. Payment op debts ; settlement 
 
 AND accounting 344 
 
 L Jurisdiction ; letters ; bond. 
 
 1. Jurisdiction. The provisions of 2 R. S. 
 74, § 26, requiring proof to be taken of the 
 death of the intestate and the applicant to be 
 examined under oath, before letters of admin- 
 istration are granted, are directory merely. 
 The jurisdiction of the surrogate to issue letters 
 does not depend on their observance. Sup. Ct., 
 1872, Farley v. McGonneU, 7 Lans. 428 ; Aff'd, 
 S. C, 52 N. Y. (7 Sick.) 630. 
 
 2. Granting letters. Chapter 603, Laws of 
 1871, in connection with the Revised Statutes 
 regulating the proof of wills, &o., authorizes the 
 issuing -of letters testamentary upon the probate 
 of a will, notwithstanding an appeal from such 
 probate, with certain limitations upon -the 
 powers of the persons to whom the same are 
 granted. Ct. App., 1875, Thomson v. Traqj, 60 
 N. Y. (15 Sick.) 31. 
 
 3. When letters are so issued, the persons to 
 whom they are issued possess all the powers and 
 are subject to all the duties and liabilities of 
 executors, except as expressly restricted in re- 
 spect to selling real estate, paying legacies and 
 distributing the effects of the testator. Ct. App., 
 1875, Thomson v. Tracy, 60 N. Y. (15 Sick.) 
 174. 
 
 4. The restriction as to distributing the effects 
 of the testator refers to the ultimate division of 
 the estate among the next of kin, or the bene- 
 ficiaries under the wUl, after the debts are paid. 
 It does not restrain or interfere with the pay- 
 ment of debts by such executors. lb. 
 
 5. Nor does that act prevent the bringing of 
 actions by creditors to establish their claims 
 against the estate. lb. 
 
 6. The reversal of the decree of the surrogate 
 admitting the will to probate, does not supersede 
 or render void the letters testamentary, when 
 such reversal is not final, but a new trial is grant- 
 ed and an issue awarded to a jury ; but the 
 powers of the executors cease only after the final 
 
 determination of such issue, and the revocation 
 of the probate by the surrogate, and notice 
 thereof to the executors. lb. 
 
 7. The act of 1871 applies not only to the city 
 of New York, but to the whole State. lb. 
 
 8. Where one or more of the executors of a 
 will, charged thereby as trustees with the 
 management of an estate dies, the Supreme 
 Court as a court of equity, has power to fill the 
 vacancy ; and such appointment may properly 
 be made upon petition. Sup. Ct., Sp. T., 1874, 
 Branson v. Branson, 48 How. 481. 
 
 9. The exercise of this power is not limited to 
 cases in which there is no trustee to execute the 
 trust, but the court may appoint whenever the 
 circumstances of the case seem to require, and 
 the court itself is the sole judge as to when the 
 exigency has arisen. lb. 
 
 10. Where a testator by his will appoints his 
 wife executrix, and delegates to her, as he may 
 lawfully do, the power to choose a co-executor, 
 letters testamentary may lawfully issue to the 
 person selected as such by her. Ct. App., 1875, 
 Hartndl v. Wandell, 60 N. Y. (15 Sick.) 346 ; 
 Rev'g S. C, 2 Hun, 552. 
 
 11. Who preferred. The obvious policy of 
 the statute (2 R. S. 71-75 ; 2 Edm. Stats. 73-77), 
 is to grant administration directly to those most 
 interested in the estate, and the appointment of 
 the representatives of persons entitled is pur- 
 posely preferred to strangers only. Ct. App., 
 1870, Cattle v. Vanderheyden, 11 Abb. N. S. 17 ; 
 Aff'g. S. C, 39 How. 289 ; 56 Barb. 622. 
 
 12. The guardian of the minor son of an in- 
 testate is not entitled to letters of administra- 
 tion, in preference to an adult daughter. The 
 same rule applies in cases of administration 
 with the will annexed. lb. 
 
 Who incompetent, ch. 79, Laws of 1873. 
 
 13. Of living persons. Although it may 
 be the duty of the surrogate to issue letters of 
 administration upon proper proof of the death 
 and intestacy of a person within his jurisdic- 
 tion, yet, if such person is actually living at the 
 time, the appointment is void, and one who pays 
 moiiey to an administrator so appointed will 
 not be protected. N. Y. Supr. Ct., Sp. T., 1874, 
 Eoderigas v. East River Savings Inst., 48 How. 
 166. 
 
 14 Bond. An administrator's bond, which 
 is conditioned for obedience to all orders " of 
 the county judge," is correct and vaUd, unless 
 it is made to appear that in the county where it 
 was given the offices of county judge and surro- 
 gate are separate. Sup. Ct., 1872, Farley v. 
 McGonneU, 7 Lans. 428 ; Affd, S. C, 62 N. Y. 
 (7 Sick.) 630. 
 
 15. It will be assumed in favor of such a bond 
 that no provision has been made by law for a 
 separate surrogate in such a county ; and the 
 court will also take judicial notice of the popula- 
 tion and public officers of the county. lb. 
 
 16. It is not essential to the validity of a bond 
 given by an administrator with the will an- 
 nexed, that his special character should be 
 recited in the bond; but one in the ordinary 
 form given by a general administrator will be 
 sufficient, and the ignorance of the sureties, 
 when executing it, of the nature of the adminis- 
 tration, will be no defense to an action thereon ; 
 nor will the fact that they were deceived by the 
 persons at whose solicitation they signed, avail 
 them as against one in no way connected with 
 the deception. Ct. App., 1874, Cassoni v. Jerome, 
 68 N. Y. (13 Sick.) 315. 
 
342 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 II. Assets, Powers and Duties. 
 See ch. 470, Laws of 1874. 
 
 17. Money in savings bank. A draft 
 drawn without consideration upon a savings 
 bank, in wliich the drawer has at the time no 
 funds, does not pass the title to funds afterward 
 deposited by him ; but, upon the death of the 
 drawer, such draft becomes revoked, and the 
 funds remaining there belong to his estate , and 
 can be recovered by the executor or adminis- 
 trator. Ct. App., 1871, Fwdred v. Seamen's Sav- 
 ings Bank, 10 Abb. N. S. 325. 
 
 18. Payments made upon a note to the widow 
 of the payee, having it in her possession, become 
 valid payments to her as administratrix upon 
 her afterward receiving letters of administra- 
 tion, her acts for the benefit of the estate being 
 thereby, bj' relation, confirmed from the death 
 of her husband, and she can avail herself of 
 them as constituting a new promise, taking the 
 note out of the statute of limitations. Sup. 
 Ct., 1872, Townsend v. IngersoU, 43 How. 276 ; 
 S. C, 12 Abb. N. S. 354. 
 
 19. Administrator with Tvill annexed. 
 An administrator with the will annexed, under 
 the language of the Revised Statutes, takes in 
 all respects the powers of a renouncing or de- 
 ceased executor, unless a personal confidence in 
 the discretion of the person named as executor 
 in tlie will is plainly expressed or to be implied ; 
 in which case the powers conferred do not pass. 
 Com. App., 1873, Bain v. Matteson, 54 N. Y. 
 (9 Sick.) 663. 
 
 20. Majority must act. A discretionary 
 autliority given to executors to withhold pay- 
 ments from children of the testator after they 
 become of age, can only be exercised by a 
 majority of such executors. Sup. Ct., 1875, 
 Qilman v. Oilman, 4 Hun, 68 
 
 21. Compounding debt. An executor has 
 power, and it is his duty when it is for the 
 interest of the estate, to compound and release a 
 debt due to it, and he can enforce a note taken 
 by him as the result of such compromise, in an 
 action upon it, the prior indebtedness being 
 merged therein. Sup. Ct., 1876, Leland v. 
 Manning, 4 Hun, 7. 
 
 22. Contracts made by executors, although 
 made in the interest and for the benefit of the 
 estate they represent, if made upon a new and 
 mdependent consideration, as for services ren- 
 dered, goods sold and delivered, or other con- 
 sideration between the promisee and the execu- 
 tors, are the personal contracts of tlie executors, 
 and do not bind the estate or create a charge 
 upon the assets in tlieir hands. Ct. App., 1872, 
 Austin V. Munro, 47 N. Y. (2 Sick.) 360. 
 
 28. Gift or sale by. An administratrix has 
 no right to make a gift to any one of any part 
 of the assets of the estate, and cannot convey 
 any title thereby ; neither can slie sell any por- 
 tion of the assets and take in payment a con- 
 veyance of property to herself for her individual 
 benefit. N. Y. Supr. Ct, Sp. T., 1872, Powers v. 
 Powers, 48 How. 389. 
 
 24. Funds, how disposed of. A special 
 administrator is a mere depositary, charged 
 with keeping safely the moneys belonging to 
 the trust, and it is his duty to deposit them with 
 some solvent bank or other institution that re- 
 ceives money on deposit, to be kept safely and 
 paid over promptly to the person entitled by 
 law to receive them. He lias no power to make 
 investments, or to deposit payable after a certain 
 time. Sup. Ct., 1871, Baskin v. Baskin, 4 Lans. 90. 
 
 25. If a special administrator loans the funds 
 on time, or on personal security, or deposits 
 them in his individual capacity, and they are 
 lost by reason of the insolvency of the borrower 
 or depositary, he is liable therefor. lb. 
 
 26. In like manner executors and adminis- 
 trators are liable for the loss of moneys of the 
 estate deposited by them in their individual 
 capacities. lb. 
 
 27. If executors receive from a special ad- 
 ministrator as assets, certificates of deposit for 
 moneys of the estate, given by an authorized 
 depositary, and payable on time to the adminis- 
 trator individually, they thereby assume the 
 same risks, and will be liable in case of loss 
 from the failure of such depositary. lb. 
 
 28. Receipt of debts. An administrator 
 upon the goods, &c,, of a deceased non-resident, 
 appointed in this State, has authority to receive 
 and satisfy the debts due here, exclusive of any 
 foreign executor or administrator. Sup. Ct, 
 1870, Stone v. Scripture, 4 Lans. 186. 
 
 29. A discharge of a mortgage on lands in this 
 State, executed by an administrator appointed 
 in the State of the domicil of deceased after the 
 appointment of an administrator here, — Held, no 
 defense to an action by the latter to forelose 
 the mortgage, notwithstanding the foreign ad- 
 ministrator had the securities in his possession, 
 and received the money thereon before either 
 administrator was appointed. lb. 
 
 III. Sales op real estate. 
 
 Seech.267,Lawso/18U. ■ 
 
 30. 'Within three years. It is essential to 
 the jurisdiction of a surrogate to direct the sale 
 of real estate in payment of \he debts of the 
 deceased, that the application therefor be made 
 within three years after the granting of letters 
 of administration on the estate. Sup. Ct, 1874, 
 Slocum V. English, 2 Hun, 78. 
 
 81. Such application must be made within 
 three years after the issuing of the first letters 
 of administration, even though the adminis- 
 trators first appointed are removed and others 
 appointed in their place. lb. 
 
 82. Purchase by executor. If an auction- 
 eer employed by an executor to make a sale of 
 real estate, under an order of the surrogate, for 
 the payment of debts, bids it in, and before con- 
 firmation of the sale agrees, even though by 
 parol, to convey a portion thereof to the execu- 
 tor, and after confirmation carries such agree- 
 ment into effect, such sale is within the prolii- 
 bition of the statute (2 Edm. Stats. 109, see. 27), 
 and void ; and it will be set aside upon appli- 
 cation of the residuary legatee, even though it 
 may be for a full price and beneficial to him, 
 and a re-sale be ordered. Ct App., 1870, Terwil- 
 liger v. Brown, 44 N. Y. (6 Hand,) 257 ; AfE'g 
 S. C, 59 Barb. 9. 
 
 33. Proceeds of real estate sold. The 
 proceeds of sales of real estate, made under a 
 power of sale for the payment of debts and lega- 
 cies, become assets in the hands of the executor 
 for those purposes, to be accounted for like 
 other assets ; but the surplus remaining after 
 the payment of these belongs to those persons to 
 whom the lands were devised, subject to the ex- 
 ecutor's power of sale, and may be paid over 
 without express order. Ct. App., 1871, Erwin 
 V. Loper,iS N. Y. (4 Hand,) 521. 
 
 34. In case executors sell, under a power 
 given them by the will, lands which are devised 
 to heirs or others, the proceeds are to be regard- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 343 
 
 ed as land, and are to be distributed in the same 
 manner as if tiie sale had been made under an 
 order of the surrogate for the payment of debts, 
 and the widow of any deceased devisee is entitled 
 to her dower interest therein. Surr. Ct., 1872, 
 Timpson's Estate, 16 Abb. N. S. 230. 
 
 IV. Actions and proceedings bt and 
 
 AOAINST. 
 
 36. Claims, presentment of. Although a 
 claim against the estate of a deceased partner 
 upon a debt of the firm may properly be pre- 
 sented for allowance, before proceedings had at 
 law against the surviving partners, yet, the 
 right of action thereon does not accrue, nor 
 the statute begin to run, until such proceed- 
 ings are had or the survivors become insolvent. 
 Ct. App., 1872, Eoyt v. Bonnett, 60 N. Y. (6 
 Sick.) 538 ; Rev'g S. C, 68 Barb., 629. 
 
 36. Notice of rejection. Notice of the re- 
 jection of a claim, in order to set in motion the 
 short statute of limitation, must be given to the 
 owner of the claim personally ; and notice to an 
 attorney engaged by such owner to present it in 
 proper shape, is insufiicient. N. Y. C. P., 1871, 
 Van Saun v. Farley, 4 Daly, 165. 
 
 37. The notice of the rejeotion or the disput- 
 ing of a claim against an estate, which will put 
 the claimant to his action within the brief period 
 prescribed, on pain of forfeiting his claim, should 
 not be ambiguous, or equivocal, but decided, 
 unequivocal and absolute. Ct. App., 1872, Hoyt 
 V. Bonnett, 60 N. Y. (6 Sick.) 538 ; Rev'g S. C, 
 68 Barb. 629. 
 
 38. Where executors wrote a claimant, saying 
 that, as at present advised, they declined to pay 
 his claim, but adding in the same letter that, 
 having no other mean« of procuring informa- 
 tion concerning the details thereof, they would 
 be greatly obliged if he would furnish a bill of 
 particulars, — Held, that the claim was not " dis- 
 puted " or " rejected " witliin the meaning of 
 the statute. lb. 
 
 39. The " refusal " by an executor or admin- 
 istrator, required to set running the short stat- 
 ute of limitations, is a refusal to allow or pay a 
 claim and not a refusal to refer ; and a mere 
 offer to refer, after an unqualified refusal to 
 pay, does not waive the statute. But where an 
 agreement in writing, to refer, is made, the 
 claim will be regarded as referred for the pur- 
 pose of avoiding the statute, although no referee 
 has been chosen. Ct. App., 1872, National Bank 
 ofFishkill v. SpeigU, 47 N. Y. (2 Sick.) 668. 
 
 40. K an executor neither admits nor rejects 
 a claim when presented to him, he must be re- 
 garded as disputing it, and its validity can only 
 be tried and determined in the manner provided 
 by law in case of disputed claims. Sup. Ct., 
 1872, Cooper V. /^cZ<er, 6 Lans. 485. 
 
 41. The surrogate has no jurisdiction to try or 
 determine any disputed claim, even by consent 
 of parties, but the executor or administrator has 
 the right to have such claims tried by jury. Sec- 
 tion 6, ch. 359, Laws 1870, confers no such au- 
 thority, but it refers merely to accounts render- 
 ed by executors and administrators. lb. 
 
 42. Preferred. In the absence of any proof 
 that the estate would be benefited by the pay- 
 ment of rent claimed, or of any statement of 
 facts in the petition tending to show that it would 
 be so benefited, it cannot properly be adjudged 
 a preferred claim. lb. 
 
 4§. Non-presentment, effect of. An ex- 
 ecutor, who has given the notice to creditors pre- 
 scribed by statute, is released from all liability 
 
 to creditors whose claims are not presented, for 
 any assets paid over by him in good faith upon 
 claims of an inferior degree, or to legatees, or in 
 making distribution to the next of kin. Ct. App., 
 1871, Erwin v. Loper, 43 N. Y. (4 Hand,) 521. 
 
 44. Reference. After a claim made by one 
 executor against the testator's estate, and re- 
 jected by his co-executors, has been referred to a 
 referee to try and determine, under a stipula- 
 tion approved by the surrogate, and a decree 
 in favor of the claimant entered on the report, 
 it is too late to raise the objection that a claim 
 of an executor is not referable. Sup. Ct., 1875, 
 Weller v. Weller, 4 Hun, 195. 
 
 45. It is within the discretion of the referee 
 to require the plaintiflt to furnish a bill of partic- 
 ulars, or not, and his decision is not reviewable 
 unless there is an abuse of discretion. lb. 
 
 46. Actions against. Contracts of execu- 
 tors, although made in the interest and for the 
 benefit of the estate they represent, if made 
 upon a new and independent consideration, mov- 
 ing between the promisee and the executors as 
 promisors, are the personal contracts of the ex- 
 ecutors and do not bind the estate. N. Y. Supr. 
 Ct., 1874, Cary v. Gh-egory, 38 N. Y. Supr. (6 J. 
 & Sp.) 127. S. P., Bloodgood v. Gregory, id. 132. 
 
 47. An executor is liable personally on a note 
 given by him in extinguishment of a debt of the 
 estate represented by him, although signed by 
 him as executor. lb. 
 
 48. A judgment creditor of a firm, after the 
 return nulla bona of an execution against the 
 surviving partner, may maintain an action 
 against the legal representatives of the deceased 
 partner, notwithstanding such execution was 
 not issued until after a receiver had been ap- 
 pointed in an action by them against the survi- 
 vor for an accounting. Sup. Ct., 1876, Yates 
 V. Hoffman, 5 Hun, 113. 
 
 49. Authority to sue. Letters of adminis- 
 tration in due form and regular on their face, 
 confer authority upon the administrator to sue 
 as such, and their validity cannot be questioned 
 in a collateral action. Sup. Ct, 1872, Farley v. 
 McCannell, 7 Lans. 428. 
 
 60. Action to recover assets. An action 
 cannot be maintained by administrators, against 
 a party to whom their intestate assigned a mort- 
 gage, or his personal representative, to recover 
 moneys collected on such mortgage, upon the 
 ground that it was so assigned for the purpose 
 of escaping taxation. Sup. Ct., 1876, Cox v. 
 Wightman, 4 Hun, 799. 
 
 51. Costs. No costs can be allowed against 
 a plaintiff administrator personally, if judgment 
 be rendered against him, in an action of trover, 
 when the alleged conversion was in the testa- 
 tor's hfetime. Otherwise, when the conversion 
 was subsequent to the testator's decease, and the 
 plaintiff might have maintained the action in his 
 own right. Sup. Ct., 1875, Fox v. Fox, 6 Hun, 
 53. 
 
 52. In an action by an administrator, a decision 
 directing judgment against the plaintiff, entitles 
 the defendants to costs to be taxed, and charged 
 upon and collected out of the estate represented 
 by such administrator. In the absence of a 
 special order made for mismanagement, they 
 cannot be collected out of the administrator per- 
 sonally. Sup. Ct., Sp. T., 1872, Lindslay v. Deaf- 
 endmf, 43 How. 90. 
 
 53. To lay a foundation for costs, in an action 
 against executors or administrators, it is only 
 necessary that the claim presented for payment 
 before action shaU be substantially the same as 
 that afterward recovered upon, and that it be so 
 
344 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 presented as fairly to apprise the executor of its 
 general nature and extent ; and it is not neces- 
 sary that it should be presented to each of two 
 executors. N. Y. C. P., 1870, Genet v. Binsse, 3 
 Daly, 239. 
 
 V. Payment op debts ; settlement and 
 
 ACCOUNTING. 
 
 64. Payment of debts. Upon an application 
 by a creditor of an estate to compel an executor 
 to account, and to pay the judgment held by 
 him against the testator, where the executor 
 presents an account duly verified, with the prop- 
 er vouchers, showing only a few dollars in his 
 hands applicable to the payment thereof, and 
 the creditor objects to some of the items of ex- 
 penditure as unnecessary, an order directing the 
 payment of his full claim cannot be sustained 
 unless it appears that the surrogate passed upon 
 the items objected to, it being for the party ob- 
 jecting to show more assets than are acknowl- 
 edged by tlie account or inventory. Sup. Ct., 
 1874, Bainbridge v. McCullough, 1 Hun, 488. 
 
 55. The proper practice in such a case is for 
 the party objecting to the executor's account, to 
 state liis objections in the form of distinct and 
 specific allegations and give proof thereof. lb. 
 
 56. Personal property is the primary fund for 
 the payment of debts, and, although specifically 
 bequeathed, it must be applied to such payment 
 before land devised can be made chargeable 
 therefor. Sup. Ot., Sp. T., 1875, Nagle v. Mc Gin- 
 nis, 49 How. 193. 
 
 67. For an executor to apply the rents of 
 real estate to the payment of the debts, in such 
 a case, is a misapplication of the funds, for 
 which he will be held personally liable, and may 
 be called to account by the Supreme Court as 
 well as by the Surrogate. lb. 
 
 58. Payment of legacies. Where executors 
 are directed by will to invest a specified sum 
 and pay over the interest or income thereof to a 
 legatee, taxes are chargeable upon such fund and 
 not on the general estate, unless a contrary in- 
 tention is manifested in the will ; but until such 
 fund is separated from the general estate and 
 separately invested, the executors cannot claim 
 that any taxes paid by them were upon the spe- 
 cific fund, and cannot retain them from the in- 
 terest or 'income thereof. Sup. Ct., 1875, Wells 
 y. Knight, 5 Hun, 50. 
 
 69. A direction by will to executors to turn 
 real estate into money, accumulate the income, 
 and, after the death of the testator's widow, to 
 divide the whole among his nephews, is invalid 
 so far as it extends the accumulation beyond 
 the minority of the nephews ; and they are en- 
 titled to be paid the accumulations and interest 
 aceming after their majority, and may call the 
 executors to account before the Surrogate in re- 
 lation thereto. Sup. Ct., 1871, Robison v. Robison, 
 5 Lans. 16§. 
 
 60. Accounting. Upon the settlement of 
 the accounts of an executor, where by the will 
 the testator's wife was entitled to all the residue 
 of the estate after payment of debts, if the wife 
 has died before such settlement, her executors 
 are necessary parties. Sup. Ct., 1867, Vulte v. 
 Martin, 44 How. 18. 
 
 Seech. 156, Laws of 187i. 
 
 61. Upon the settlement of an executor's ac- 
 counts, the Surrogate has power to ascertain 
 the amount of assets that has passed into the 
 hands of such executor, and the amount paid 
 out by him upon the debts of the testator ; and 
 on his paying over to the legatees or next of kin 
 
 whatever surplus of assets there may be in his 
 hands, he is entitled to a decree declaring such 
 settlement to be final, and discharging him from 
 his trust. lb. 
 
 62. Such a settlement can involve no question 
 as to the state of the accounts between the estate 
 and the legatees, except so far as may be neces- 
 sary to ascertain what share belongs to each. 
 lb. 
 
 63. Where the wife of the testator was his 
 residuary legatee, and she is dead at the time 
 of the settlement of the accounts of her hus- 
 band's executor, such settlement involves no 
 inquiry into the state of the accounts between 
 him and the representatives of the wife, either 
 in his character as executor, or as a trustee of 
 the real estate under a deed of trust. It is only 
 when a trust is created by a last will, that the 
 Surrogate has power to settle a trustee's ac- 
 counts, lb. 
 
 64. Commissions can only be allowed upon 
 receipts and disbursements of money belonging 
 to the estate. lb. 
 
 65. A debt claimed by the executor to be due 
 him from the estate of his testator, cannot be 
 allowed him until its validity is legally establish- 
 ed. The Surrogate's* Court has jurisdiction to 
 determine that question. lb. 
 
 66. If the executor has paid debts of the estate 
 out of his own means, the only way he can be 
 allowed for them is to treat him as an assignee 
 of such debts, in place of the original creditors, 
 lb. 
 
 67. The power of the Surrogate to hear and 
 determine claims in favor of executors against 
 the estates of their testators, whether disputed 
 or not, is not limited by statute. Sup. Ct., 1875, 
 Kj/le v. Kyle, 3 Hun, 458. 
 
 '68. An executor is not authorized to pay a sum 
 of money out of the assets, in settlement of 
 a claim for dower in the estate of his testator, 
 and cannot be allowed therefor on an account- 
 ing, lb. 
 
 69. Opening. An administrator de bonis nan 
 cannot institute a proceeding to compel his pre- 
 decessors m the trust to account over again. He 
 may sue to recover goods unadministered, but 
 he has no power, nor is it his duty to overhaul 
 the accounts of his predecessors ; they being 
 liable only to the creditors or next of kin. Sup. 
 Ct., 1874, Yale v. Baher, 2 Hun, 468. 
 
 70. An executor of an executor, who has 
 never had in his possession property received by 
 his testator, as executor, cannot be compelled to 
 account therefor before the Surrogate ; but the 
 the claim for such property should be presented 
 and collected in the same manner as other claims 
 against an estate. Sup. Ct., 1871, Montross V. 
 Wheeler, 4 Lans. 99. 
 
 71. Decree, effect of. The decree of a Sur- 
 rogate upon the final settlement of an executor's 
 accounts, only determines the amounts received 
 and paid out by him, and the balance, if any, in 
 favor of or against him. Sup. Ct., 1876, Johnson 
 v. Richards, 3 Hun, 464. 
 
 72. Upon a decree of distribution, made in 
 conformity to the statute, each creditor or lega- 
 tee may maintain an action to recover the sum 
 adjudged to him thereby ; but no action to re- 
 cover a legacy can be maintained on a decree 
 which merely determines the balance of assets 
 in the executor's hands. lb. 
 
 73. Action for accounting. The Supreme 
 Court by virtue of its equity jurisdiction has 
 power to compel an administratrix to account for 
 the trust estate to the parties entitled, and the 
 power given by statute to the Surrogate to com- 
 
EXECUTORS AND ADMINISTRATORS. 
 
 345 
 
 pel such an accounting is not exclusive hut con- 
 current with that of the Supreme Court. Ct. 
 App., 1874, Haddow v. Lundy, 59 N. Y. (14 Sick.) 
 820. 
 
 74. Persons claiming to be the real widow and 
 the next of kin to a deceased intestate, have a 
 sufficient interest in his estate to maintain an 
 action against one who has obtained the appoint- 
 ment of administratrix of such deceased, wrong- 
 fully claiming to be his widow, to compel her to 
 account for funds of the estate of which she had 
 invested part in improvements on her own real 
 estate, and was wasting the residue, and to ob- 
 tain a lien on her real estate for the amount in- 
 vested thereon ; which relief could not be ob- 
 tained in a surrogate's court. lb. 
 
 75. The court having obtained possession of 
 the case, will permit it to proceed notwithstand- 
 ing the removal of the defendant from her ad- 
 ministratorship and the appointment of the plain- 
 tiff thereto, under proceedings previously com- 
 menced before the surrogate, and the subse- 
 quently acquired title of the plaintiff can be as- 
 serted therein and made the foundation of relief 
 different from what the plaintiffs were entitled 
 to at the outset. lb. 
 
 76. In such case, although there is no supple- 
 mental or amended complaint setting up tliat 
 title, yet, if it appears of record by a supplemen- 
 tal answer, the defect may be supplied by 
 amendment even after appeal to the Court of 
 Appeals. lb. 
 
 77. Such plaintiffs have a right to follow the 
 trust fund by an action in equity, notwithstand- 
 ing the fact that the sureties of the defendant 
 may be solvent, so that they have a remedy at 
 law. lb. 
 
 78. The appointment of a receiver in such a 
 case, to whom the defendant is required to con- 
 vey the real estate upon which the funds have 
 been expended, with directions to sell the same 
 and pay out of the proceeds the lien declared 
 thereon, is an appropriate though perhaps not 
 the best method of enforcing the lieu. lb. 
 
 79. Assets lost. In accounting for moneys 
 lost by failure of the depositary, with whom 
 they were deposited on time by the special ad- 
 ministrator, and certificates of deposit turned 
 over to and received by them as assets, execu- 
 tors cannot be permitted to introduce evidence 
 to show the character in which the special ad- 
 ministrator turned them over ; nor the amount 
 of moneys of the estate previously deposited 
 with the same depositary ; nor, in accounting for 
 moneys so lost which they themselves deposited 
 on time in their individual capacities, can they 
 show their good faith as an excuse ; all such 
 evidence being immaterial. Sup. Ct., 1871, Bask- 
 in V. Baskin, i Lans. 90. 
 
 80. Executor's o-wn debt. An executor is 
 prima facie chargeable for a claim appearing to 
 be due from him to the estate, notwithstanding 
 his appointment as executor, but the latter may 
 show the claim to be unfounded and unjust ; 
 and. when he denies the validity of the claim, it 
 must be determined before the estate can be 
 finally settled, and it must be tried in the surro- 
 gate's court, in the same way, and for the same 
 reason, that cljims against the estate in favor of 
 the executor must be tried there. Sup. Ct., 1862, 
 Everts v. Everts, 62 Barb. 577. 
 
 81i The statute declaring that a debt due from 
 an executor to his testator shall not be deemed 
 released, but that at the time it becomes due, he 
 shall be liable therefor as for so much money in 
 his hands (2 B. S. 84, sec. 13), does not have the 
 effect to discharge any lien by which such debt 
 
 may be secured, but it merely superadds to his 
 original obligation a liability to account as exe- 
 cutor for the amount of the debt. Ct. App., 1874, 
 Soverhill v. Suydam, 59 N. Y. (14 Sick.) 140. 
 
 82. Executor's claim against estate. Al- 
 though the claim of an executor for moneys ad- 
 vanced by him during the lifetime of the testa- 
 tor and while he was insane, for the support of 
 the testator and his family, cannot regularly be 
 allowed as disbursements made by him as exe- 
 cutor, yet he is entitled to have it allowed as an 
 offset against his indebtedness to the estate ; 
 and upon appeal, an order charging him with 
 such indebtedness and refusing to allow his claim, 
 may properly be modified so as to allow his 
 claim in deduction of his indebtedness. Sup. 
 Ct., 1864, In matter of Cunningham, 1 Hun, 214. 
 
 83. Expenses of journey. An executor 
 who necessarily comes from his residence in an- 
 other State to prove the will in this State, is 
 entitled to be allowed the expenses of his jour- 
 ney, and perhaps for his board as a part of such 
 expenses, but he is not entitled to be allowed 
 the expenses of subsequent journeys, which were 
 not necessary. Sup. Ct., 1862, Everts v. Everts, 
 62 Barb. 577. 
 
 84. Funeral expenses. The necessary and 
 reasonable funeral expenses of a testator are a 
 charge against his estate, and have a preference 
 over all debts against it as a part of the expenses 
 of the trust ; and the law implies a promise on 
 the part of an executor to repay one who in his 
 own absence or neglect, directs a burial and in- 
 curs and pays such necessary expenses. Ct. 
 App., 1875, Patterson v. Patterson, 59 N. Y. (14 
 Sick.) 574; Modifying, S. C, 1 Hun, 323 ; 47 
 How. 24a. 
 
 85. Assessments. A municipal assessment 
 for the flagging of a sidewalk in front of prem- 
 ises held by a devisee for life, is apportionable 
 between the Ufe estate and remainder ; and when 
 such remainder is to the executor in trust, he 
 should be allowed in accounting for his propor- 
 tionate share thereof, but not for the whole. Ct. 
 App., 1874, Peek v. Sherwood, 56 N. Y. (11 Sick.) 
 616. 
 
 86. Insurance, etc. An executor holding a 
 trust estate in lands after an estate for- life, may 
 properly join with the life tenant in insuring the 
 buildings upon the premises, and protecting them 
 by lightning rods ; and should be allowed the 
 proportion of the expense incurred which is pro- 
 perly chargeable to the trust estate. lb. 
 
 87. Interest. An executor or administrator 
 cannot be made to account for more or greater 
 interest than he has received, though less than 
 the legal rate. Ct. App., 1874, Shuttlewarth v. 
 Winter, 55 N. Y. (10 Sick.) 624. 
 
 88. Services to administrator. A surro- 
 gate in deciding upon claims against an estate, 
 has no jurisdiction to allow charges for services 
 rendered to the administrator after the death of 
 the intestate ; much less, charges for services 
 rendered to him as administrator of the estate of 
 another deceased person. Sup. Ct., 1872, Blood- 
 good V. Sears, 64 Barb. 71. 
 
 89. An executor or administrator may employ 
 an agent in the matters of the estate if its pecu- 
 Uar circumstances so require ; but the compen- 
 sation of such agent must be measured by the 
 nature, extent and value of his services. Ct. 
 App., 1874, O'Gara v. Ciearkin, 58 N. Y. (18 
 Sick.) 663. 
 
346 
 
 EXEMPLIFICATIONS— FACTOR. 
 
 EZEMPLIFICATIONS . 
 See Evidence. 
 
 EXEMPT PROPERTY. 
 See ExEcnuoN. 
 
 , EX POST FACTO. 
 See CosrsTiTUTioKAi, law. 
 
 % 
 
 EXPRESS COMPANY. 
 
 1. C. O. D. An express company and its ser- 
 vants, in carrying and delivering a package 
 marked C. 0. D. and collecting the money from 
 the consignee, are the agents of the consignor, 
 and if such package, on being opened, proves to 
 be worthless and a swindle, the consignee is en- 
 titled to recall the payment he has made to the 
 agent for the use of his principal, and may 
 do so on notice to such agent, provided he has 
 not paid it over, and no change has taken place 
 meantime in his situation. Sup. Ct., 1871, Ser- 
 rick V. Gallagher, 60 Barb. 566. 
 
 2. It is clearly the duty of the agent, under 
 such circumstances, to pay back the money on 
 discovery of the fraud, and notice thereof, if it 
 is still in his hands ; and having done so on the 
 promise of the consignee to make it right, he 
 cannot recover it back from such consignee ; nor 
 is he himself liable therefor either to the con- 
 signor, or to the express company. lb. 
 
 EXTENDING TIME. 
 See Practice. 
 
 EXTRADITION. 
 
 1. Fugitive from justice. The law of this 
 State authorizing the governor, in his discre- 
 tion, to deliver to justice foreign criminals found 
 here (1 R. S. 164, sec. 8), is unconstitutional 
 and void ; and there being no provision by 
 treaty between the United States and Belgium, 
 for the extradition of persons charged with 
 crimes, a warrant from the governor for the 
 surrender of an alleged criminal to the authori- 
 ties of Belgium is void. N. Y. Supr. Ct., In mat- 
 ter of Voght, 44 How. 171. 
 
 2. Detention for other cause. In the ab- 
 sence of any express treaty stipulation, the State 
 courts are under no obligation not to detain an 
 extradited person brought within their jurisdic- 
 tion for any other act, civil or- criminal, than that 
 specified in the proceedings under which he was 
 surrendered. Grover and Eolgek, J J., dissent. 
 Ct. App., 1874, Adrience v. Lagrave, 59 N. Y. (14 
 Sick.) 110; Aff'g 47 How. 71; 15 Abb. N. S. 
 272 ; Rev'g S: C, 1 Hun, 689 ; 47 How. 385. 
 
 8. Such person may, therefore, be arrested on 
 civil process in favor of one who did not partici- 
 pate in the fraudulent proceedings for extradi- 
 tion, lb. 
 
 4. Treaty with France. The extradition 
 
 treaty between the United States and France, in 
 providing for the demand and surrender of per- 
 sons accused of the crime of burglary, has 
 reference only to the common-law offence known 
 by that name, and recognized as such by both 
 governments, and not to a mere statutory offence 
 such as burglary in the third degree. Sup. Ct., 
 1873, In matter of Lagrave, 46 How. 301 ; S. C, 
 14Abb.N.S. 333,— note. 
 
 FACTOR. 
 
 1. WTjo is. One to whom an artist entrusts 
 a picture belonging to him, to deliver to a third 
 party for exhibition and sale, is not a factor, 
 within the meaning of the factor's act (4 Edm. 
 Stats. 461, sec. 8), and cannot by a pledge thereof 
 for a loan of money, transfer to the pledgee any 
 right of property therein, or give him a lien 
 thereon. N. Y. C. P., 1872, Frankenstein v. 
 Thomas, 4 Daly, 256. 
 
 2. A factor is one who is entrusted with the 
 possession, management and control of goods, 
 and authorized to buy and sell in his own name, 
 as well as that of his principals ; while a broker 
 is one employed to simply act as negotiator 
 between parties. N. Y. Supr. Ct., 1874, Ladd y. 
 Arkell, 37 N. Y. Supr. (5 J. & Sp.) 35. 
 
 3. Suit by. A factor is a trustee of an 
 express trust, and may sue in his own name to 
 recover the proceeds of goods of his principal 
 consigned to him, or for a conversion thereof. lb. 
 
 4. Powers. A factor, on discovering that he 
 has been induced by fraud to part with the 
 goods of his principal to an insolvent purchaser, 
 who has placed the property in such a condition 
 that it is difficult, if not impossible to follow it, 
 has power to protect his principal by obtaining a 
 security for the debt ; and it is his duty to do his 
 utmost to protect his principal from loss, and in 
 extraordinary emergencies he may assume ex- 
 traordinary powers, even io the extent of de- 
 viating from the general instructions of his prin- 
 cipal. Ct. App., 1873, Joslin v. Cowee, 52 N. Y. 
 (7 Sick.) 90 ; Rev'g S. C, 60 Barb. 48. 
 
 . 5. Pledge by. The clearly expressed in- 
 tent of the legislature in enacting the factor's 
 act (ch. 179, Laws of 1830), as well as the gen- 
 eral scope of the act, was not to deprive owners of 
 their property without any fault or act of theirs, 
 nor to protect any but bona fide purchasers for 
 value. To entitle a party to its protection he 
 must have parted with money upon the faith of 
 the property, and the apparent title of the' party 
 assuming the right to deal with it, manifested by 
 the possession of the property itself, or of the 
 usual documentary evidence of title. Ct. App., 
 1875, Eowland v. Woodruff, 60 N. Y. (15 Sick.) 
 73. 
 
 6. It is the act of the owner in entrusting the 
 factor with the possession of the goods, or the 
 documentary evidence of ownerjiip, the ap- 
 parent ownership and right of disposal, in ■con- 
 nection with the fact that innocent third persons 
 deal with him upon the faith of such apparent 
 ownership, that estops the owner from following 
 his property into the hands of bona fide vendees 
 or pledgees, and gives the latter a better title 
 than their vendor or pledgor had. lb. 
 
 7. In order to enable a factor not having the 
 documentary evidence of title to create a valid 
 pledge, he must have an actual, as distinguished 
 from a constructive possession. Rapallo and 
 Andrews, J J., dissent. lb. 
 
 8. Parties who shipped barley by canal boat 
 
FALSE IMPRISONMENT. 
 
 347 
 
 to N. Y., consigned to their factors G W & Co., 
 the same being mixed with other barley con- 
 signed to other parties, under a bill of lading 
 which provided that the captain of the boat 
 should hold the grain five ddjjrs after arrival, 
 without charge, and thereafter at $1.50 per 
 day, until the consignee removed it, but 
 verbally instructed -the captain to hold it 
 until sold, and did not entrust the consignees 
 with any bill of lading, custom-house permit, or 
 warehouse receipt, or other evidences of title, are 
 not bound by the acts of the consignees in 
 directing the boat captain to deliver the grain at 
 a warehouse, under pretence that it was sold, 
 and pledging itfor an advance, but have the right 
 to follow and reclaim the property from the 
 pledgees. lb. 
 
 9. Factor's receipt, ■what is. A weigher's 
 return, delivered by a warehouseman to a car- 
 rier, of goods deposited by the latter with the 
 former, in store, is not such a receipt as is re- 
 quired by the factor's act (ch. 326, Laws of 1858), 
 and' the provisions of that act have no applica- 
 tion to such a case. Ct. App., 1874, Western 
 Transportation Co. v. Barber, 56 N. Y. (11 Sick.) 
 544. 
 
 10. Commission. Where property is placed 
 in the hands of a commission merchant for sale, 
 under an agreement that he shall receive for his 
 services in receiving, caring for and selling the 
 property, a commission of two and one half per 
 cent, on the sales, he is entitled to his commission 
 on all sales made by the owner, and consum- 
 mated by delivery by the factor on the orders of 
 the owner, as well as on sales made by himself, 
 and he is also entitled to pay for liis services ren- 
 dered in respect to the property not sold, at 
 what those services were fairly worth. Ct. App., 
 1874, Briggs v. Boyd, 56 N. Y. (11 Sick.) 289 ; 
 AfE'g S. C., 65 Barb. 197. 
 
 11. Liability. A factor is bound to assume 
 that his principal is the owner of goods con- 
 signed to him for sale, and cannot justify a 
 refusal to account for the proceeds of such sales 
 on the ground that he has paid them over to the 
 creditor of a third party, upon an order made in 
 supplementary proceedings in an action against 
 such third party, of which his principal had no 
 notice. Ct. App., 1874, Barnard v. Kobbe, 54 
 N. Y. (9-Sick.) 516; AfE'g S. C, 3 Daly, 372. 
 
 12. Uen of, 'when attaches. A factor, 
 who accepts a draft, upon the promise of his 
 principal to make a consignment of goods to 
 cover the same, has a lien upon goods shipped for 
 that purpose from the moment of their shipment, 
 and may recover the same from attaching cred- 
 itors of his principal, who levy upon them before 
 they reach his hands, N. Y. C. P., 1871, Heard 
 V. Brewer, 4 Daly, 136. 
 
 See Bailment ; Bbokeb. 
 
 13. Lien, waiver of. A selling factor has a 
 lien upon the goods of his principal in his hands, 
 as a security for his advances, commissions and 
 liabilities incurred in respect thereto ; but such 
 lien may be waived and discharged by the wrong- 
 ful act or breach of duty of the factor. Sup. Ct., 
 1872, I'erwUliger v. Beals, 6 Lana. 403. 
 
 14. Such a factor is bound, on reasonable re- 
 quest of his principal, to render a full and com- 
 plete statement of his dealings and the accounts 
 between them, and if he refuses to do so when 
 notified of the termination of his agency, or to 
 surrender the goods on the principal's offer to 
 pay the amount of his claims, his lito is thereby 
 waived and extinguished, and the principal can 
 maintain replevin for the goods. lb. 
 
 FALSE IMPRISONMENT. 
 
 1. Answering question. The mere answer- 
 ing of a question askefl by an officer respecting 
 the identity of a person apparently in his charge 
 will not subject one to an action for false im- 
 prisonment, for an arrest of such person subse- 
 quently made by the officer upon the informa- 
 tion so given, although the answer proves to be 
 founded in mistake. Ct. App., 1874, Farnam v. 
 Feeley, 56 N. Y. (11 Sick.) 451. 
 
 2. Illegal arrest. The plaintiff in an action 
 wherein an order of arrest is issued, by deliver- 
 ing the order to the sheriff and directing him to 
 make the arrest, becomes liable to the defendant 
 for false imprisonment, if it was illegal. Sup. 
 Ct., 1871, Hall V. Munger, 5 Lans. 100. S. P., 
 Miller v. Adams, 7 Lans. 131. 
 
 3. An order of arrest granted by a justice of 
 the Supreme Court in due form, on affidavits 
 furnisliing some legal evidence in support of all 
 the facts required to be established to entitle the 
 plaintiff to such order, is within the jurisdiction 
 of the judge, and is a protection to the party 
 obtaining it, as well as to the judge who grants, 
 and the officer who executes it, before it is set 
 aside, even though, on a motion to set it aside, 
 such affidavits would be insufficient to support 
 it. lb. 
 
 4. An order so granted is merely erroneous, 
 not irregular, and an order setting it aside be- 
 cause erroneous merely corrects a judicial error, 
 and does not render a party liable for acts prop- 
 erly done in execution of it while it was in 
 force. lb. 
 
 5. A party whose attorney applies to a judge 
 for the issuing of an attachment for the arrest 
 of another and delivers it to tlie sheriff for ser- 
 vice, is clearly liable in ease the attachment is 
 void for want of jurisdiction in the judge or for 
 any other cause. Ct. App., 1873, Miller v. Adams, 
 52 N. Y. (7 Sick.) 409. 
 
 6. "Where the judge issuing the attachment 
 had jurisdiction, the party acting' under it in 
 good faith cannot be held liable as a tres- 
 passer, lb. 
 
 7. An attachment as for a contempt, issued in 
 violation of a stay of proceedings and without 
 proof by affidavit of the facts-charged, is irreg- 
 ular and void, and the party causing the same 
 to be issued- is liable therefor in an action for 
 false imprisonment. N, Y. C. P., 1869, Ackroyd 
 V. Ackroyd, 3 Daly, 38. In such a case, the unlaw- 
 Jul arrest is the gist of the action, and allegations 
 of maUce may be rejected as surplusage. lb. 
 
 8. A justice of the peace acts judicially in 
 passing upon the sufficiency of an affidavit for 
 tlie arrest of a defendant, and is not liable to an 
 action for false imprisonment for issuing a war- 
 rant on which such defendant is arrested, even 
 though the affidavit does not state that plaintiff 
 is a resident of the county and not a free- 
 holder, he being in fact a reside.nt and a free- 
 holder. Sup. Ct., 1875, Harrison v. Clark, 4 
 Hun, 685. 
 
 9. Where a justice of the peace mistakenly 
 determines that the facts stated in an affidavit 
 constitute a criminal offense, under a statute, 
 and that there is probable cause against the de- 
 fendant, and issues a warrant for liis arrest, if 
 such warrant charges such an offense, even 
 though in general terms, it is valid, and the 
 complainant is not liable to an action of false 
 imprisonment for delivering the same to an offi- 
 cer, believing it to be valid, and directmg him 
 to make the arrest. Sup. Ct., 1871, Lewis v. 
 Rose, 6 Lans. 206. 
 
348 
 
 FALSE PRETENSES— FIDUCIARY CAPACITY. 
 
 10. Illegal commitment. A justice of the 
 peace who is son-in-law of an overseer of the 
 poor, is disqualified by affinity with such over- 
 seer from entertaining bastardy proceedings 
 commenced before him by such overseer, and if 
 he does associate with himself another justice, and 
 after the hearing they make an order of affilia- 
 tion, and commit the defendant to jail for dis- 
 obedience thereof, Buoh justices are Jnable to 
 him for false imprisonment. Sup. Ct., 1871, 
 Rivenburgh, v. Henness, 4 Lans. 208. 
 
 11. A person arrested for passing liquor to a 
 prisoner and taken before the general superin- 
 tendent of police of the city of New York, was 
 ordered confined by the latter, and was impris- 
 oned eight days before being released on habeas 
 corpus, several offers of bail to the superintendent 
 in the meantime being refused, — Seld, that it 
 was the duty of tlie superintendent to have 
 ordered the prisoner to be taken immediately 
 before a magistrate, and liaving ordered him 
 imprisoned instead, he was liable for false im- 
 prisonment, and the knowledge that the con- 
 finement was continued brought to him by the 
 offers of bail, was proper to be considered in 
 aggravation of damages. Com. App., 1872, Green 
 V. Kennedy, 48 N. Y. (3 Sick.) 653. 
 
 12. Illegal sentence. A jidge of the Cir- 
 cuit Court of the United States, whether that be 
 a court of limited or of general jurisdiction, is 
 liable to an action for false imprisonment if, 
 after sentencing a criminal to both fine and im- 
 prisonment, and the payment of the fine, on 
 discovering that he was authorized by law to 
 impose such fine or imprisonment only as alter- 
 nate punishments, he re-sentences him to impris- 
 onment, the judge having then no further 
 jurisdiction of the case. Sup. Ct., Sp. T., 1875, 
 Lange v. Benedict, 48 How. 465. 
 
 13. Justification. A sworn complaint in 
 writing, charging that " G of the said county 
 and keeper of a saloon in the town of C, is a 
 disorderly person by allowing drunkenness and 
 gambling in liis saloon, by men and boys, con- 
 trary to the meaning of the statute in such case 
 provided, and praying that he may be ar- 
 rested and dealt with according to law, although 
 informal, states facts from which the magistrate 
 might, perhaps, conclude that he did keep such 
 a house, and therefore sufficient to give him 
 jurisdiction ; and such complaint and a warrant 
 issued under it, are a sufficient protection to the 
 complainant and the officer who executed the 
 warrant, in an action by the defendant for false 
 imprisonment. Sup. Ct., 1871, Gardner v. Bain, 
 6 Lans. 256. 
 
 FALSE PRETENSES. 
 See Criminal Law. 
 
 FALSE EEPEESENTATIONS. 
 See Fraud, 
 
 FALSE RETURN. 
 
 1. By deputy. If a sheriff entrusts to hia 
 deputy an execution wherein such deputy is 
 himself the judgment debtor, and the latter, 
 having property during the life of the execution 
 
 which might have been applied on it, returns 
 the same nulla bona, the sheriff is liable in an 
 action for a false return. N. Y. C. P., 1875, HoU 
 brook V. Brennan, 48 How. 519. 
 
 2. Evidence.\ In an action against a sheriff 
 for a false return, slight evidence is sufficient to 
 put him upon proof of the truth of the return. lb. 
 
 FATHER. 
 See Paebnt and Chiu>. 
 
 FEES. 
 See Costs. 
 
 FEIGNED ISSUE. 
 See Practiok. 
 
 FELONY. 
 See Criminal Law. 
 
 FEME COVERT. 
 See Husband and Wife ; Mabkied Woman. 
 
 FENCES. 
 
 ^ee OH. 635, Laws of 1871 ; ch. 377, Laws op 
 1872, Amendatory op Revised Statutes. 
 
 1. Building division fence. Inasmuch as 
 the law compels each land-owner to make his 
 portion of the division fence between his own 
 and adjoining land, he has the right to occupy 
 such adjoining land for the time being, so far 
 as is necessary for the purpose of building such 
 fence. Sup. Ct., 1871, Carpenter v. Halsey, 60 
 Barb. 45 ; Aff'd, S. C, 57 N. Y. (12 Sick.) 657. 
 
 2. Where adjoining owners have agreed upon 
 the division of the fence between them, and one 
 of them has, with the consent of the other, 
 drawn stone for his portion of the fence and 
 deposited them on the other's land, the latter or 
 his grantee have no right to remove them from 
 a fence erected therewith on the line by the 
 former. lb. 
 
 3. Proportions. The provisions of the Re- 
 vised Statutes in relation to partition fences {1 
 Edm. Stats. 353), do not require each party to 
 build and maintain one-half the fence, but a " just 
 and equal proportion ; " that is, just and equal 
 with reference to the cost. Sup. Ct., 1874, People 
 ex rel. Foote v. Dewey, 1 Hun, 629. 
 
 FIDUCIARY CAPACITY. 
 See Practice ; Arrest. 
 
FILIATION— FORCIBLE ENTRY AND DETAINER. 349 
 
 FILIATION. 
 
 See BA8TASDT. 
 
 FINDING. 
 See Pkacticb. 
 
 FIRE INSUEANCE. 
 See Insueancb. 
 
 FISHEKY. 
 
 1. Innavigable ■waters. The right of fish- 
 ing in navigable rivers and arms of the sea is 
 presumptively free and common to all the peo- 
 ple, but such right may become exclusive in the 
 owner of the adjacent soil by grant or prescrip- 
 tion, subject to the superior public right of 
 navigation. Ct. App., 1875, Brookhaven, Trus- 
 Ues 0/ V. Strong, 60 N. Y. (15 Sick.) 56. 
 
 2. The title to land under water confers the 
 right of a several fishery, as well in a bay or arm 
 of the sea; and where the tide ebbs and flows, as 
 in fresh waters. lb. 
 
 3. At common law the king had the power to 
 grant the soil under navigable waters, with the 
 exclusive right of fishery. Magna charta did not 
 take away that power, but merely restrained the 
 granting of such an exclusive right disconnected 
 with a right to the soil, or in disregard of the 
 rights of the owner of the soil. lb. 
 
 4. If the power of the king were doubtful, the 
 legislative power, represented in England by Par- 
 liament, and in the colonies by the governor and 
 colonial assemblies, could make such a grant. lb. 
 
 5. A grant by the colonial governor of the 
 province of New York in 1666, by letters patent 
 imder seal of the province, to the freeholders 
 and inhabitants of a certain town, of a tract of 
 land described by metes and bounds, which 
 included a portion of Great South Bay, on the 
 south side of Long Island, with " all rivers, 
 waters, beaches, creeks, harbors, fishing " and 
 all other " franchises " to said tract appertain- 
 ing, conveyed to the patentees the lands under 
 that portion of the waters of the bay included 
 within its bounds, with the exclusive right to the 
 oyster fisheries therein. lb. 
 
 6. The subsequent ratification of such grant 
 by the colonial assembly, and its recognition 
 by the constitutions and laws of the State, con- 
 firm such title. lb. 
 
 7. Long user and occupancy under the grant, 
 and a successful maintenance of the right when 
 disputed or resisted, are sufficient to give the 
 claimants under it the benefit of any presump- 
 tion which may be legitimately indulged to sup- 
 ply defects in the grant, if not a title by pre- 
 scription, lb. 
 
 FISH. 
 
 Acts for preservation of oh. 721, Laws of 1871; 
 ch. 665, Laws of 1873. 
 
 Acts for culture and propagation of eh. 831, 
 Laws of 1871 ; ch. 760, Laws of 1873 ; ch. 288, 
 Laws of 1874. 
 
 FIXTURES. 
 
 1. Intention. The intention of the owner, 
 evidenced by according acts, is sufficient to so 
 appropriate and convert personal chattels, such as 
 gas fixtures, into fixtures annexed to the free- 
 hold, that they would pass by his deed to his 
 grantee. N. Y. C. P., 1878, Funk v. Brigaldi, 4 
 Daly, 359. 
 
 2. Machinery. If it be the intention that 
 chattels shall not by annexation, become a part 
 of the freehold, as a general rule they will not ; 
 and if a mortgagor of lands, on purchasing an 
 engine and boiler to be placed thereon, express- 
 ly agrees with the vendor that they shall not, no 
 matter how they may be affixed, become part of 
 the realty, until the notes given for the purchase- 
 money are paid, it does not need that there be a 
 concurrent intention on the part of a prior mort- 
 gagee, but, as against the latter, the vendor may 
 claim them under a chattel mortgage. Ct. App., 
 1873, Tiffi V. Horton, 53 N. Y. (8 Sick.) 877. 
 
 3. The test to determine whether articles per- 
 sonal in their nature, such as machinery, have 
 acquired the character of real estate, are ; 1st. 
 permanency of annexation ; 2d, adaptability to 
 the use of the freehold and, 8d the intention of 
 the parties at the time of making the annexation. 
 The circumstance that the machinery may or 
 may not be removed without great injury to 
 the building or to itself, is not now deemed 
 controlling. Com. App., 1872, Vbm-hees v. Mc- 
 Ginnis, 48 N. Y. (8 Sick.) 278. 
 
 4. Where the owner of certain mill premises, 
 purchased for the use of his mills a steam engine 
 and boilers, and put -them in a building on the 
 premises erected tor the purpose, placing them 
 upon solid brick foundations resting upon the 
 ground excavated therefor, and built with mor- 
 tar in a substantial and permanent manner, 
 bolting them firmly to such foundations, and 
 carrying the brickwork up over the body of the 
 boilers, the shafting and gearing being specially 
 adapted to the building, and of no value, except 
 ,as material, in any save that or a similar place, 
 but not so secured to the building that it could 
 not be readily removed without injury : — all this 
 being done without any particular intent on the 
 part of the owner either to annex or to re- 
 move the property, — Held, that, as between a 
 mortgagee of such machinery before its annexa- 
 tion and a purchaser upon foreclosure of a mort- 
 gage of the real estate, the property would 
 belong to the latter. lb. 
 
 5. Rolling stock. The rolling stock of a 
 railroad company does not become part of the 
 realty, so as to pass by a conveyance of the land 
 as part thereof. Com. App., 1873, Boyle v. 
 Plattsburgh and Montreal R. E. Co., 54N.'Y. (9 
 Sick.) 314. 
 
 6. As between mortgagees and judgment 
 creditors, it will be considered personal property, 
 and a mortgage thereof must be filed as a chattel 
 mortgage. lb. 
 
 FLOWING LANDS. 
 See Actions ; wateroodbse. 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 1. Action for. Where one in possession of 
 premises adjoining a railroad was expelled by 
 
350 
 
 FORECLOSURE— FORMER ADJUDICATION. 
 
 the employes of the company, under the direc- 
 tion of its general superintendent, whereupon the 
 company immediately took and retained posses- 
 sion, — Held, that the presumption was that the 
 act was an official act, for the benefit of fflie 
 company ; at least, it was ratified, and the com- 
 pany was therefore liable. Com. App., 1872, 
 People ex rel. McBride v. New York Central R. 
 R. Co., 51 N. Y. (6 Sick.) 623. 
 
 FOEECLOSUBE. 
 
 See MoRTGAOE. 
 
 FOREIGN CORPOKATIONS. 
 
 1. Contracts void by law of its own 
 State. A railroad company chartered by the 
 law of another State, which has been permitted 
 by the legislature to extend its line and transact 
 business in this State, cannot escape liability 
 upon a contract made by it, which is valid and 
 enforceable here, on the ground that, by decis- 
 ions of the courts of its own State, it had no 
 power to make such a contract. Ct. App., 1873, 
 Milnor V. N. Y. and N. H. R. R. Co., 58 N. 
 Y. (8 Sick.) 863 ; Aff'g S. C, 4 Daly, 355. 
 
 2. Corporate acts done in this State, under 
 authority given by the directors of a foreign 
 corporation, at a meeting held here, are valid 
 and binding if not repugnant to the policy of 
 our own laws. Sup. Ct., 1866, Smith v. Alvord, 
 63 Barb. 415. 
 
 3. Jurisdiction over a foreign corporation, 
 must, from the peculiar character of such an 
 institution outside the State of its creation, be 
 of a special statutory character. N. Y. C. P., 
 1871, Ahern v. National Steamship Co., 11 Abb. 
 N. S. 356 ; S. C, 3 Daly, 399 ; Overruling S. C, 8 
 Abb. N. S. 283. 
 
 4. The jurisdiction over such corporations, 
 conferred by sees. 33 and 427 of the Code, upon 
 the courts of record therein named, is special 
 and exclusive of any other courts than those 
 named ; and no such jurisdiction is conferred 
 upon the district courts of New York City. lb. 
 
 5. Courts of this State have no jurisdiction to 
 compel a distribution of the assets of a foreign 
 corporation among the stockholders. Sup. Ct., 
 Sp. T., 1872, Redmond v. Enjield Manf. Co., 13 
 Abb. N. S. 332. 
 
 6. They may interfere by injunction or re- 
 ceivership to prevent a fraud on the company 
 or its stockholders, or to aid a receiver ap- 
 pointed by the courts of the State of such cor- 
 poration in obtaining possession of its property ; 
 but they cannot do so where no fraud is shown, 
 and the directors are properly discharging their 
 duties. lb. 
 
 7. Actions against. Under the provisions 
 of sec. 427 of the Code, the Supreme Court and 
 certain other courts of this State have jurisdic- 
 tion of actions by residents of this State against 
 corporations created by or under the laws of any 
 other State, government, or country, for anv 
 cause of action, whether it arose here, or tlie 
 subject or property to be acted on is situated 
 here or not. Sup. Ct., 1874, Prouty v. Mich. S. 
 and N. Ind. R. R. Co., 1 Hun, 655. 
 
 8. An action In equity against such a corpor- 
 ation may properly be brought by one of a class 
 of persons, on behalf of himself and all others 
 similarly situated ; and such others may come 
 
 in and prove their rights, and obtain satisfaction 
 equally with the plaintiff. lb. 
 
 9. In an action so brought to compel the pay- 
 ment of back dividends on preferred and guar- 
 anteed stock, and restrain the payment of other 
 dividends or transfer of property until they are 
 paid, the stockholders of the company are not 
 necessary parties. lb. 
 
 10. Where, after judgment ordered for plain- 
 tiffs in such action, the defendant company be- 
 comes consolidated with other companies, an 
 order cannot properly be made substituting the 
 consolidated company and its officers as defen- 
 dants, since it makes them liable upon the 
 original contracts, and subjects them and all 
 the funds of the consolidated company to the 
 restraint adjudged a,gain8t the old company. 
 Ct. App., 1873, Prouty v. Lake Shore &■ Mich. 
 S. Ry. Co., 52 N. Y. (7 Sick.) 363. 
 
 11. A resident stockholder of a foreign cor- 
 poration which has commenced proceedings in 
 its home State for a dissolution, can maintain 
 an action in this State for the appointment of a 
 receiver to take and hold a fund belonging to 
 such corporation in the hands of an unsafe de- 
 positary here, who refuses to pay it over to the 
 parties entitled thereto, without joining all the 
 other stockholders as parties. Sup. Ct., 1874, 
 Redmond v. Hoge, 3 Hun, 171. 
 
 12. Service of process within this State 
 on the proper officer of a foreign corporation is 
 equivalent, under the existing statutes, to person- ■ 
 al service on a ncn-resident natural person ; and, 
 if such personal service cannot be made, service 
 may be made upon it by publication, in cases in 
 which it can be made against non-resident indi- 
 viduals. Sup. Ct., 1875, Barnett v. Chicago &■ L. 
 H. R. R. Co., 4 Hun, 114. 
 
 13. The provisions of the Code relative to tlie 
 provisional remedy of attachment, and the en- 
 tering of judgment, apply as well to foreiga 
 corporations as to non-resident individuals. lb. 
 
 14. Proof of incorporation. If a foreign 
 corporation appears and answers in a suit 
 against it, the plaintiff need not prove its incor- 
 poration. If such proof was necessary, the laws 
 under which it was incorporated would be suf- 
 ficient for that purpose. Sup. Ct., 1873, Boot v. 
 Great Western Ry. Co., 65 Barb. 619. 
 
 FORFEITURE. 
 
 See Equity. 
 
 FORMER ADJUDICATION. 
 
 1. In general. The doctrine of stare decisis 
 is" one of great importance in the administration 
 of justice, and should not be departed from, ex- 
 cept in extreme cases, founded upon some 
 change in the law, either by legislation, or by 
 courts of last resort, or when the court is satisfied 
 that an erroneous conclusion has been declared. 
 So held in a case where the act under which the 
 plaintiff claimed had been previously in the 
 same suit declared unconstitutional. Sup. Ct., 
 1874, Bretman v. Mayor, etc. of New York, 47 
 How. 178; S. C, 1 Hun, 315. 
 
 2. Decision in same department. Where 
 a full and final decision upon a point of law has 
 been made by the Supreme Court at General 
 Term, it is the duty of the circuit judges in that 
 department to follow the reasoning and con- 
 
FORMER ADJUDICATION. 
 
 351 
 
 elusions therein in other cases, without regard 
 to adverse decisions in courts of a sister State. 
 Sup. Ct. Cir., 1872, Head v. Smith, 44 How. 476. 
 
 3. — in same case. Tlie decision of the 
 court on a former appeal in the same case 
 as to the submission of a question to the 
 jury, standing unreversed at the time of a 
 subsequent appeal, must control therein. N. Y. 
 Supr. Ct., 1873, Games v. Piatt, 46 How. 520 ; 
 S. C, 15 Abb. N. S. 337 ; 36 N. Y. Supr. (4 J. & 
 Sp.) 361. 
 
 4. — of higher court. An inferior court 
 should give the decision of the court of last re- 
 sort full effect, whatever its views as to the cor- 
 rectness or wisdom of such decision ; but when 
 that court departs from its own decisions, and 
 leaves it uncertain what its views are upon J 
 question of law, the inferior court should follow 
 its latest decision. Sup. Ct., 1873, Costello v. 
 Syracuse, Bing. Sr N. Y. R R. Co., 65 Barb. 92. 
 
 5. — of divided court. A former decision 
 in an action between the parties to a deed in 
 trust, made by a divided court, as to the effect 
 of such deed, should not be held res adjudicata 
 in a subsequent suit between the grantee and a 
 third party, except as to the questions necessarily 
 decided in such action. Sup. Ct., 1875, Heer- 
 mans v. Robertson, 3 Hun, 464. 
 
 6. WTien conclusive. A final judgment by 
 a court having jurisdiction is conclusive upon 
 the parties, as to all matters at issue and deter- 
 mined tliereby, in whatever court they may 
 afterward be brought in question. Com. App., 
 1878, Smith v. Hemstreet, 54 N. Y. (9 Sick.) 644. 
 
 7. A fact cannot be held to have been adjudi- 
 cated in a former suit, unless it expressly so ap- 
 pears of record, or, at least, is shown by evidence 
 aliunde to have been determined therein. Sup. 
 Ct., 1871, Bissdl v. Kellogg, 60 Barb. 617. 
 
 8. Where the case settled by the judge before 
 whom an action was tried, sliows that the ques- 
 tion whether a certain mortgage was executed 
 upon a usurious contract was in issue in that 
 suit, and that the fact of usury was found by the 
 judge, although it does not so appear in his.origi- 
 nal findings, that question is to be considered as 
 res adjudicata, as between the plaintiff in the for- 
 mer suit, and the defendant therein and his privy 
 in estate. lb. 
 
 9. Where an action upon two promissory notes 
 was defended on the ground that they had been 
 paid by the giving of a bond and mortgage, 
 after their maturity, for the amount thereof, and 
 of a book account in addition, to the plaintiff's 
 assignor, such assignor having notice of the 
 action, and testifying as a witness on the trial, 
 an adjudication in favor of the plaintiff is con- 
 clusive in a subsequent action by such assignor 
 upon the book account. N. Y. C. P., 1872, 
 Bissick V. McKenzie, 4 Daly, 265. 
 
 10. 'When not conclusive. In order to 
 make a former action a bar to a second one, the 
 circumstances must be such that the plaintiff 
 might have recovered in the first for the same 
 cause alleged in the second. It is not sufficient 
 that the transactions involved in and giving rise 
 to the two actions are the same ; the causes of 
 action must be identical to the extent that the 
 same evidence will support both. Ct. App., 
 1875, Stowell v. Chamberlain, 60 N. Y. (15 Sick.) 
 272. 
 
 11. A former action for the wrongful conver- 
 sion of bonds, alleged by the complaint to be the 
 property of the plaintiff, and to have been 
 loaned by him to the defendant who, without 
 his consent, sold, transferred and converted the 
 same to his own uise, in which a demurrer to the 
 
 complaint for insufficiency was sustained, and 
 on failure of the plaintiff to amend, judgment 
 was rendered for the defendants, is not a bar to 
 a subsequent action for the value of the same 
 bonds alleged to have been received and sold by 
 the defendants as agents for the plaintiff, and 
 the proceeds not paid over. lb. 
 
 12. A judgment is conclusive upon the parties 
 thereto only in respect to the grounds covered 
 by it, and the law and facts necessary to uphold 
 it ; and although it, in express terms, purports 
 to affirm a particular fact or rule of law, yet if 
 such fact or rule of law was immaterial to the 
 issue, and the controversy did not turn upon it, 
 the parties are not concluded in reference there- 
 to. Com. App., 1871, Woodgate v. Fleet, 11 Abb. 
 N. S. 41 ; S. C, 44 N. Y. (5 Hand,) 1. 
 
 13. Thus, the decree of a court, in an action by 
 cestuis que trust claiming under a trust deed, 
 against one claiming the same lands under an 
 execution sale made after the trust deed was 
 executed, restraining the continuance of the 
 ejectment suit, and declaring the trust deed to 
 be in force, is not a bar to a new suit to deter- 
 mine how far the trust deed is valid, and what 
 are the interests of the cestuis que trust. lb. 
 
 14. A former adjudication between the same 
 parties is not a bar to the investigation of a ques- 
 tion in a subsequent action between them, unless 
 such question was involved, or decided therein. 
 Sup. Ct., 1874, Candee v. Burke, 1 Hun, 546. 
 
 15. A claim not within the issues of an action 
 and not submitted to nor passed upon by the 
 court therein, is not barred by the judgment, al- 
 though some evidence was given on the trial not 
 wholly irrelevant to the issues, and also relating 
 to the transactions on which such claim is based. 
 Ct. App., 1873, East N. Y. ^ Jamaica R. K Co., 
 V. Elmore, 53 N. Y. (8 Sick.) 624. 
 
 16. A judgment in an action wherein the in- 
 validity of the assignment under which the 
 plaintiffs claimed title was set up as a defense, 
 but such defense was ruled out, on the ground 
 that the defendants had no such standing in re- 
 lation to the property as would enable them to 
 litigate the question, is no bar to a subsequent 
 action by such defendants to set aside the as- 
 signment. Sup. Ct., 1871, Yates v. Lyon, 61 
 Barb. 205. 
 
 17. A judgment for the plaintiff in an action 
 by a subsequent against a prior indorser of ne- 
 gotiable paper, wherein the defense set up was 
 that the plaintiff had received and held securi- 
 ties exceeding the amount claimed, is no bar to 
 a subsequent action by the defendant in such 
 suit, to be subrogated to the rights of the 
 plaintiff in such securities. Ct. App., 1871, 
 Bennett v. Cook, 45 N. Y. (6 Hand,) 268. 
 
 18. Premature action. A judgment is not 
 a bar to a second action for a cause of action 
 involved in the first, if, at the time such judg- 
 ment was rendered, that cause of action had 
 not accrued ; and parol evidence is admissible to 
 show that fact. Sup. Ct., 1873, Marcellus v. 
 Countryman, 65 Barb. 201. 
 
 19. Where, in a suit upon a note and other 
 demands, the jury found, upon conflicting evi- 
 dence, that the time of payment of the note had 
 been extended by agreement, the judgment in 
 such action is no bar to a second suit on the 
 note. It cannot be reviewed in such second suit, 
 lb. 
 
 20. Decision of Court of Appeals. The 
 Supreme Court is bound by the decisions of the 
 Coulst of Appeals, notwithstanding the United 
 States courts may have decided the same points 
 differently ; except that it will give effect to the 
 
352 
 
 FORMER ADJUDICATION. 
 
 decisions of the latter courts in the particular 
 cases where on appeal they hare reversed the 
 decisions of the Court of Appeals. Sup. Ct., 
 1873, Tovm of Venice v. Breed, 65 Barb. 597. 
 
 21. — of appellate court. An afiirmance on 
 appeal of an order denying a motion to open a 
 default, is a bar to a further review of such or- 
 der on an appeal from the judgment. Sup. Ct., 
 1875, Smith v. Belden, 8 Hun, 622. 
 
 22. An appellate court which, on granting a 
 new trial for an error in the charge to the jury, 
 has held that the case should be submitted to 
 the jury, will not review that decision upon a 
 second appeal where the same error does not 
 appear and the evidence given on the second 
 trial was substantially the same as on the first. 
 Sup. Ct., 1874, McGrath v. N. Y. Cent. #• Hud. 
 R. R. R. Co., 1 Hun, 437 ; Eev'd by Ct. App. 
 
 23. On certiorari. The decision of the Su- 
 preme Court on certiorari to review the proceed- 
 ings of the commissioner of highways in discon- 
 tinuing a highway, reversing his order, estab- 
 lishes that such proceedings were illegal from 
 the beginning ; and a land-owner who fenced the 
 land through which it was discontinued, cannot 
 maintain an action for a trespass committed 
 thereon before such reversal, the- judgment 
 being conclusive until reversed. Ct. App., 1875, 
 Briggs v. Bowen, 60 N. Y. (15 Sick.) 454, 646. 
 
 24. Condemnation of land. A judgment 
 of condemnation of land for railroad purposes, 
 made by a competent court, charged with a 
 special statutory jurisdiction, in a case where all 
 the facts necessary to the exercise of that juris- 
 diction were shown to exist, is no more subject 
 to impeachment in a collateral proceeding than 
 the judgment of any other court of exclusive 
 jurisdiction. U. S. Sup. Ct., 1874, Secomb v. 
 Milwaukee 4r St. Paul Rt/. Co., 49 How. 76. 
 
 25. Action for conspiracy. A judgment 
 in an action against several persons for the can- 
 cellation of certain conveyances, alleged to have 
 been obtained by means of a conspiracy to 
 defraud the plaintiff of her property through 
 a judicial sale, and requiring the defendants 
 to account to the plaintiff for the rents 
 and profits, is not a bar to a subsequent action 
 against some of the defendants to recover any 
 damages sustained by her in addition to those 
 provided for in the first judgment. Sup. Ct., 
 1875, Bruce v. Kelly, 5 Hun, 229. 
 
 26. If the two causes of action could be 
 united, the one being legal and the other equita- 
 ble, it was optional with the plaintiff whether it 
 should be done or not. The law allows, but 
 does not require them to be united, even where 
 they arise out of the same transaction, or are 
 connected with the subject of the action. lb. 
 
 27. — on contract. A judgment in a former 
 action to recover the first and second instal- 
 ments becoming due on a contract, in which the 
 defendant set up the non-performance of the 
 contract by the plaintiff and claimed damages 
 for the breach, which were allowed him, is a bar 
 to a recovery by the defendants for similar 
 breaches of the contract, although alleged to 
 have been committed at other times, in a subse- 
 quent action to recover the remaining instal- 
 ments. . N. Y. Supr.Ct., 1871, DeWolf v. Cran- 
 dall, 34 N. Y. Supr. (1 J. & Sp.) 14. 
 
 28. Constitutionality of lavr. A former 
 decision in an action between the same parties 
 as to the constitutionality of an act authorizing 
 a town to bond itself in aid of a railroad, and as 
 to alleged defects and imperfections in the pro- 
 ceedings under it, and the right of a tax-payer 
 to maintain an action to restrain the levying of 
 
 a tax to pay interest on the bonds, must be fol- 
 lowed in a subsequent action involving the same 
 question. Sup. Ct., Sp. T., 1872, Cumines v. Board 
 of Supervisors of Jefferson Co., 63 Barb. 287. 
 
 29. Conversion. In an action against a 
 warehouseman, by the holder of his receipt, for 
 a conversion, wherein the defense is an adverse 
 claim by another party and the pendency of 
 an action by him for the recovery of the prop- 
 erty, a judgment in favor of the holder of the 
 receipt in an action subsequently commenced 
 against him by such adverse claimant to cancel 
 the receipt and restrain such action, is conclu- 
 sive upon the defendant. Com. App., 1872, Tay- 
 lor y. Spader, 48 N. Y. (8 Sick.) 664. 
 
 30. An action having been commenced by the 
 (fwner of a horse, for its conversion by unlawful 
 use, while left with tfie defendant to board for 
 hire, the latter brought an action in justice's 
 court for the board of the horse. In this action 
 the owner pleaded the conversion in bar, but a 
 demurrer to the answer as not stating a defense 
 was sustained and judgment rendered for the 
 plaintiff, which he, by supplemental answer, set 
 up as a bar to the first action, — Held, a complete 
 bar, and that the remedy for the erroneous de- 
 cision of the justice should be sought in the 
 same suit. Ct. App., 1871, Collins v. Bennet, 46 
 N. Y. (1 Sick.) 490. 
 
 31. Costs, adjustment of. Where the bill 
 of costs, charges, and expenses of commissioners 
 of estimate and assessment upon a street im- 
 provement have been duly presented to the 
 counsel for the city corporation, and taxed and 
 allowed by a referee, and his report confirmed 
 by the Supreme Court, as provided by law, the 
 city is bound thereby, unless it takes direct pro- 
 ceedings to set it aside ; and cannot impeach 
 such adjudication in an action to recover the 
 amount allowed. Sup. Ct, 1875, Pitman v. Mayor, 
 etc. of New York, 3 Hun, 370 ; Afif'd by Ct. App. 
 
 32. Creditor's suit. A judgment dismissing 
 the complaint, in an action brought by a judg- 
 ment creditor in behalf of himself and all others 
 similarly situated, to set aside a conveyance al- 
 leged to have been fraudulently made by the 
 judgment debtor, after a trial on the merits, is 
 no bar to an action by a subsequent judgment 
 creditor for similar relief ; he not being a party 
 or privy to that action, even though he was a 
 witness for the plaintiff therein. Sup. Ct, Sp. 
 T., 1875, O'Brien v. Browning, 49 How. 109. 
 
 33. Default. A judgment for plaintiff, by 
 default, in an action upon a promissory note to 
 recover the interest due, where process was per- 
 sonally served, and the defendant appeared 
 without answering, is conclusive against a de- 
 fense of usury interposed between the same par- 
 ties in a subsequent action to recover the amount 
 of the note. Com. App., 1872, Newton v. Hook, 
 48 N. Y. (13 Sick.) 676. 
 
 34. Discheurge in bankruptcy. The de- 
 cision of the district court in granting a dis- 
 charge in bankruptcy, notwithstanding the same 
 was opposed on the ground of a fraudulent con- 
 cealment of property by the bankrupt, is not a 
 bar to an actionby the assignee of the bankrupt 
 to recover such property on the ground of the 
 same fraud. If he could be deemed privy in es- 
 tate, his title accrued at the commencement of 
 the bankruptcy proceedings, and could not be 
 affected by the subsequent proceedings of the 
 creditors in opposing the discharge. Sup. Ct., 
 1872, Jones v. Milbank, 6 Lans. 78. 
 
 85. Bismissal of action to redeem. 
 Where, in an action by the general assignee of 
 an insolvent debtor, to have an assignment of a 
 
FORMER ADJUDICATION. 
 
 353 
 
 lease of real estate by the debtor to the defend- 
 ants, which is absolute on its face, declared to 
 be a mortgage as security for money loaned, and 
 to redeem the premises, the court adjudges such 
 assignment to be a mortgage, and that on plain- 
 tiff's paying the defendants a certain sum within 
 a specified time they should reassign the lease 
 to him, but in default of such payment the plain- 
 tifi's complaint was to stand dismissed out of 
 court ; the failure of the plaintiff to pay that 
 sum within the time allowed, does not make the 
 dismissal operate as a strict foreclosure, and a 
 forfeiture of the estate. To make it so operate, 
 there must be S final order, made on proof of 
 non-payment of the amount, that the complaint 
 stand dismissed. Ct. App., 1870, BoUes v. Duff", 
 41 How. 855; S. C, 10 Abb. N. S. 399; 43 N. 
 Y. (4 Hand,) 469. 
 
 86. Until such order is obtained, the records of 
 the court do not show which party has finally 
 obtained the judgment, or who is the owner of 
 the land ; and the complainant may apply to 
 have the time to pay the amount extended. 
 Such action and decree is therefore no bar to a 
 subsequent action by the receiver of the debtor, 
 to reach the latter's interest in the property 
 leased, and to get the benefit of the decree al- 
 lowing redemption, as against an assignee, claim- 
 ing as absolute owner by assignment of the 
 lease and the decree from the original defend- 
 ant, made with the consent of the original plain- 
 tiff, lb. 
 
 37. Dismissal of complaiut. A judgment, 
 entered upon a dismissal of the complaint sim- 
 ply, is no bar to a subsequent action for the 
 same cause between the same parties. N. Y. C. 
 P., Sp. T., 1870, Ripley v. Hazdtm, 3 Daly, 329. 
 
 38. Discoiitinaance. The rule that the dis- 
 continuance by the plaintifE of an action in jus- 
 tice's court, after it has been finally submitted 
 for decision, operates as an adjudication on the 
 merits in favor of the defendant, must be lim- 
 ited in its operation to the particular issue in- 
 volved in the action, and cannot operate to bar 
 an action between the same parties, involving 
 other issues, although relating to the same, sub- 
 ject matter. Sup. Ct, 1871, Gillilan v. Spratt, 
 41 How. 27; S. C, 8 Daly, 440; Overruling, 
 S. C, 8 Abb.N. Y. 13. 
 
 89. Thus, the discontinuance by a landlord of 
 summary proceedings instituted to dispossess his 
 tenant for holding over after the expiration of 
 his term, without notice to the tenant, after the 
 issue raised by the tenant's denial of the hold- 
 ing over and of the landlord's title, have been 
 tried and submitted, and the justice has taken 
 time to consider and decide, is not a bar to an 
 action subsequently brought by the landlord 
 for rent and damages for the use and occupa- 
 tion of the premises, lb. ^ 
 
 40. Of ecclesiastical tribunals. In cases 
 where there is not clearly an absence of juris- 
 diction, the decisions of ecclesiastical tribunals 
 as to their own jurisdiction in ecclesiastical mat- 
 ters should have great weight in civil courts. 
 Ot. App., 1874, Cannitt v. Rearmed Prot. Dutch 
 Church of New Prospect, 54 N. Y. (9 Sick.) 561 ; 
 Aff'g S. C, 4 Lans. 839. 
 
 41. The decisions of such tribunals, in cases 
 where they have jurisdiction, are final and bind- 
 ing upon the parties and the civil courts, and 
 such courts cannot inquire whether they have 
 proceeded according to the usages of their 
 church or have decided correctly. lb. 
 
 42. In ejectment. A party against whom 
 judgment is recovered in ejectment, is conclud; 
 ed thereby upon the question of title to the 
 
 23 
 
 land, as between him and the plaintiff and his 
 assignees, notwithstanding a neglect to enforce 
 it by -writ of possession, until the statute of lim- 
 itation has run against it. Sup. Ct., 1875, Cog- 
 ger V. Lansing, 4 Hun, 812. 
 
 43. For an escape. A judgment against the 
 sheriff, in an action for the escape of a judgment 
 debtor from the jail limits, is conclusive in his 
 favor of the fact of the escape without legal dis- 
 charge, in a subsequent action by him against 
 the sureties in the bail-bond of such debtor ; es- 
 pecially where he gave notice to them to defend. 
 Sup. Ct:, 1873, Toll V. Alvord, 64 Barb. 568. 
 
 44. Feigned issue. Questions of law, such 
 as those relating to the admissibility of evidence 
 and the regularity of proceedings, decided on 
 appeal from a verdict rendered on a feigned is- 
 sue, must be treated as res judicata in the action. 
 Sup. Ct., 1872, Brown v. Clifford, 7 Lans. 46. 
 
 45. In foreclosure. In an action for the fore- 
 closure of a mortgage, the record of a former action 
 between the same parties for the cancellation of 
 the same mortgage, in which judgment was ren- 
 dered dismissing the complaint for want of 
 merits, — Held, conclusive. N. Y. C. P., 1871, 
 Derby v. Hartman, 3 Daly, 458. 
 
 46. Of foreign court. An adjudication of a 
 foreign court, which had acquired jurisdiction 
 of the person of the defendant, upon an issue 
 formed by the pleadings, is conclusive upon the 
 defendant in an action brought upon the judg- 
 ment in a court of tliis country. N. Y. Supr. Ct., 
 Harrison v. Lourie, 49 How. 124. 
 
 47. A judgment recovered in a court of an- 
 other State is not conclusive upon a defendant 
 therein, who was not personally served with pro- 
 cess and did not authorize any attorney to ap- 
 pear for him in the action, in a subsequent suit 
 brought in this State upon the judgment ; but 
 if the record shows those facts, the suit will be 
 dismissed as to him. Sup. Ct. Cir., 1873, Sheriff 
 V. Smith, 47 How. 470. 
 
 48. On habeas corpus. A former decision 
 on habeas cotpus, refusing to discharge an impris- 
 oned debtor, is not a bar to a subsequent appli- 
 cation for discharge, unless the case as present- 
 ed on the second application is the same as that 
 presented and passed upon on the first Sup. 
 Ct, 1874, People ex rel. Eldridge v. Fancher, 1 
 Hun, 27. 
 
 49. Interlocutory order. A decision of a 
 court of another State upon an interlocutory 
 motion^ for alimony and suit money, is not con- 
 clusive upon the parties on a similar application 
 in a court of this State. It is only a definitive 
 judgment upon the merits which concludes 
 them. Ct App., 1872, BrinUey v. Brinkley, 50 
 N. Y. (5 Sick.) 184. 
 
 50. In justice's court. The decision of a 
 justice dismissing an action commenced before 
 him for want of jurisdiction, because the ac- 
 counts between the parties exceeded $400, if not 
 appealed from, is conclusive in the action. Sup. 
 Ct, 1875, Kirk v. Blashfield, 4 Hun, 269. 
 
 51. Invalidity of patent. The decree of a 
 court of the United States, in an action between 
 the assignor and assignees of a patent, establish- 
 ing the invalidity of such patent, is conclusive 
 upon the parties in a subsequent action by the 
 assignor to recover the royalties agreed to be 
 paid in consideration of the assignment Sup. 
 Ct, 1875, Hawks v. Swett, 4 Hun, 146. It is also 
 conclusive between the assignees, in a suit by 
 one against the others to recover royalties agreed 
 by them to be paid to him for the exclusive 
 right to manufacture under the assignment. 
 Sup. Ct, 1875, Marston v. Swett, 4 Hun, 153. 
 
354 
 
 FORMER ADJUDICATION. 
 
 52. For price. A judgment for the price of 
 goods sold is not inconsistent with a claim by 
 the purcliaser that they came again into tlie 
 possession of the seller and were lost by the neg- 
 ligence of liis agent, and is not therefore a bar 
 to an action by the purchaser to recover back 
 the amount paid tlierefor. Ct. App., 1874, Purcell 
 V. Jaycox, 59 N. Y. (14 Sick.) 288. 
 
 53. Refusal to discharge. The denial of a 
 petition of an imprisoned debtor for a discharge 
 from execution, under 2 R. S. 31, because his 
 proceedings are adjudged to be not just and fair, 
 in that lie failed to include in his petition and 
 account some property which he had at the time 
 lie was imprisoned, or his accounts were made 
 up, and part of which he disposed of after that 
 time, is a bar to a new petition upon the same 
 state of facts. N. Y. C. P., Sp. T., 1871, Matter 
 of Thomas, 10 Abb. N. S. 114. 
 
 54. Rent due. The judgment of a justice of 
 the peace in summary procedings to recover 
 possession of leased premises, altliough recov- 
 ered by default, is conclusive upon the defendant 
 as to the rights of the parties, and the amount 
 of rent claimed and adjudged to be in arrears, 
 and the defendant cannot litigate those facts in 
 a subsequent action for such rent. N. Y. C. P.; 
 1872, Powers v. Wilty, 42 How. 362 ; S- C, 4 
 Daly, 552. 
 
 55. Under a lease, conditioned for the pay- 
 ment of rent monthly, the claims of the lessor 
 for the several successive months' rent are sev- 
 erable and assignable, and a judgment against 
 the tenant, in an action by the assignee of one 
 such claim, is not conclusive in a subsequent ac- 
 tion by the assignee of another. N. Y. C. P., 
 1871, Brennan v. Blath, 8 Daly, 478. 
 
 56. Replevin. Judgment for the defendant 
 in an action of replevin to recover money in 
 specie, will not bar a subsequent action in debt 
 as for money had and received. Com. App., 
 1871, Sager v. Blain, 44 N. Y. (5 Hand,) 445. 
 
 57. Statute of limitations. Where the 
 statute of limitations is set up as a defense to 
 an action for instalments due upon a subscrip- 
 tion for stock of a corporation, and such de- 
 fense is held good as to some of such instal- 
 ments, the company is not estopped by the 
 judgment from denying that any more is due it 
 for the stock than the amount recovered therein. 
 Sup. Ct., 1871, Johnson v. Albany and Susq. R. R. 
 Co., 5 Lans. 222 ; Aff'd, S. C, 54 N. Y. (9 Sick.) 
 416 ; Rev'g S. C, 40 How. 193. 
 
 58. The judgment in such a case is only con- 
 clusive against the right of the company to col- 
 lect anything more by suit on the subscription. 
 MiLLEE, P. J., dissents. lb. 
 
 59. Surrogate's decree. In an action on an 
 administrator's bond, the decree of a surrogate 
 adjudging the plaintiff's claim to be a valid 
 charge against the estate, and directing him to 
 pay the same, is conclusive against the admin- 
 istrator and his sureties. So long as such a de- 
 cree stands unreversed, it cannot be questioned 
 in a collateral proceeding. Ct. App., 1874, Casoni 
 V. Jerome, 58 N. Y. (13 Sick.) 315. 
 
 60. A decree of a surrogate ordering a mort- 
 gage to be executed upon the real estate of a 
 decedent, for want of sufficient personal prop- 
 erty to pay the debts, is conclusive upon an as- 
 signee of the heir who had notice of and ap- 
 peared upon the hearing ; and he cannot be per- 
 mitted, as against the administrator who after- 
 ward acquires the title to that and other mort- 
 gages upon the property, to show that the re- 
 sources for purchasing the same came from 
 funds properly belonging to the estate. Ct. 
 
 App., 1872, Graham v. Linden, 50 N. Y. (5 Sick.) 
 547. 
 
 61. Title. A judgment in a former action 
 against heirs to charge lands descended to them 
 with a debt of their ancestor, in which an ad- 
 verse equitable title claimed by one of tlie heirs 
 has been decided against her, is conclusive upon 
 such lieir in a second suit by the purchaser on 
 execution under that judgment to recover pos- 
 session of the land sold. N. Y. Supr. Ct., 1875, 
 Hudson V. Smith, 39 N. Y. Supr. (7 J. & Sp.) 452. 
 
 62. Title to office. The decision of the 
 Court of Appeals in a direct proceeding to try 
 the title to an ofBce, will be c^sidered by the 
 courts of this State to be the law of the land, 
 until it shall have been reversed, notwithstand- 
 ing an appeal may have been taken therefrom 
 to the Supreme Court of the United States. 
 Sup. Ct., 1871, Rochester and Gen. Vat. ffi. R. Co. 
 V. Clarke, 60 Barb. 234. 
 
 63. Of United States courts. The de- 
 cisions of the Court of Appeals of this State on 
 the subject of maritime liens are binding upon 
 inferior courts of this State, although they are 
 subject to review in the Supreme Court of the 
 United States, and are contrary to the decisions 
 of the United States courts on the same subject. 
 N. Y. Supr. Ct., 1874, Poole v. Kermit, 37 N. Y. 
 Supr.(5J. &Sp.) 114. 
 
 64. Van Rensselaer leases. The nature 
 of the relations created by indentures of lease 
 of lands in fee, in the manor of Rensselaerwick, 
 and that they are deeds of assignment, leaving 
 no estate, reversion or possibility of reverter in 
 the grantor, nor creating any rent service, but 
 creating a rent charge, — Held, adjudicated by 
 numerous decisions of the Court of Appeals. 
 Sup. Ct., 1872, Lyon v. Adde, 63 Barb. 89. 
 
 65. Who bound by. Where, in an action 
 brought by a creditor of an insolvent partner- 
 ship, in behalf of himself and all others, simi- 
 larly interested, who should come in and claim 
 the benefit of it, to compel an accounting and 
 distribution of assets by the assignees of such 
 firm for the benefit of its creditors, a decree for 
 an accounting was made under which all cred- 
 itors were authorized to come in and present 
 their demands ; and notice to such creditors was 
 duly published according to the practice of 
 courts of equity, and a final decree of distribu- 
 tion was made ; — Held, that, in the absence of 
 fraud, all the creditors were bound by the de- 
 cree, whether they presented their claims or 
 not, or whether or not they had actual notice of 
 the proceeding ; and this, notwithstanding the 
 assignees knew of claims which were not pre- 
 sented, and themselves failed to present and 
 prove them. Com. App., 1871, Kerr v. Blodgett, 
 
 48 N. Y. (8 Sick.) 62. 
 
 66. Person heard on motion. Any person 
 who is allowed by the court to appear and be 
 heard on the argument of a motion, in the de- 
 cision of which he is interested, is as fully con- 
 eluded by the disposition which the court makes 
 of such motion as if he had been named a 
 formal party to it, and received notice of the 
 motion. Sup. Ct., 1874, Jay v. De Groat, 2 Hun, 
 205. 
 
 67. Principal. When one party, at the re- 
 quest of another, enters into a contract as his 
 surety, the law implies a promise of indemnity, 
 and a judgment against such surety, in an ac- 
 tion of which the principal has notice, is conclu- 
 sive upon.the latter; and a foreign judgment 
 has the same effect in this respect as one of our 
 own courts. Ct. App., 1872, Konitzhi v. Me«er, 
 
 49 N. Y. (4 Sick.) 571. 
 
FRAUD. 
 
 355 
 
 68. Privies in interest. Where one who 
 had given a bill of sale to another of a watch . 
 and chain and some colts, afterward sold the 
 colts to d third party, and procured such third 
 party to bring an action for the colts against 
 the holder of the bill of sale, and in such action 
 it was adjudged that such bill of sale was ex- 
 ecuted merely as collateral security to a note 
 which had since been paid ; — Held, that the de- 
 fendant in that suit was estopped by the judg- 
 ment therein from asserting title to the watch 
 and chain under such bill of sale, in an action 
 against the maker thereof. Sup. Ct, 1874, Bush 
 V. Knox, 2 Hun, 576. 
 
 69. Trustees. A judgment against a cor- 
 poration will be conclusive of the question of 
 indebtedness, except in case of fraud or collu- 
 sion, in a subsequent action against an individ- 
 ual trustee, to enforce his joint and several lia- 
 bility for a failure to file the annual report. N. 
 Y. Supr. Ct., 1870,. Nimmons v. Tappan, 2 
 Sweeny, 652. 
 
 70. The -wife of a tenant for life who is 
 made a party to a suit for the foreclosure of a 
 mortgage given by her husband of the lease- 
 hold premises, is bound thereby, and cannot set 
 up her rights as a tenant under a lease executed 
 to her by the landlord, after he had demanded 
 possession on the ground of forfeiture for waste, 
 and the voluntary surrender thereof by her hus- 
 band, as against a purchaser at the foreclosure 
 sale. Sup. Ct., 1871, Allen v. Brotm, 60 Barb. 39. 
 
 71. 'Who not bound by. A judgment in 
 ejectment in favor of the plaintiff is not conclu- 
 sive of his title to the premises, in a subsequent 
 action by him against a person who occupied 
 the premises pending such suit under a lease 
 from a person not claiming under the defend- 
 ant therein, to recover rents and profits. Sup. 
 Ct., 1875, Thompson v. Clark, 4 Hun, 164. 
 
 72. The fact that such person entered into 
 possession after the filing of the notice of lis 
 pendens in the ejectment suit, does not make 
 the judgment binding on him if he did not en- 
 ter under the defendant therein. lb. 
 
 73. A decision in supplementary proceedings 
 that the services nf the attorneys for the judg- 
 ment creditor, in '.no prosecution of the actions, 
 were of the value ol $900, and a direction that 
 the clerk pay over that amount, is not conclu- 
 sive upon the client, as between her and her at- 
 torneys that the whole of that amount was due 
 to the attorneys. Sup. Ct., 1878, Wagener v. 
 Finch, 66 Barb. 493. 
 
 FRAUD. 
 
 1. 'Wliat actionable. The mere fact of being 
 a director and stockholder in a corporation is not 
 per se sufficient to hold a party liable for the 
 frauds and misrepresentations of the active man- 
 agers of the corporation ; but some knowledge 
 of and participation in tlie act claimed as fraud- 
 ulent, must be brought home to the person 
 charged. Ct. App., 1874, Arthur v. Griswold, 65 
 N. Y. (10 Sick.) 400. 
 
 2. One who takes from an individual partner, 
 for the purpose of discharging his private debt 
 a note signed by him and indorsed by him in the 
 firm name, with knowledge of the facts, and nego- 
 tiates it to a bona fide purchaser, with intent to 
 charge the firm thereby, is guilty of a fraud for 
 which an action may be maintained against him. 
 Com. App., 1872, Calkins v. Smith, 48 N. Y. (3 
 Sick.) 614. 
 
 8. The cause of action in such case, however, 
 does not belong to the firm, but to the partners 
 injured, and not to them jointly, but to each 
 separately to the extent of his individual interest 
 in the partnership ; and no interest in it will pass 
 by an assignment of the partnership assets, or 
 by a transfer by one partner of his interest in 
 such assets. Gray, C, andLoTT, Ch. C, dissent, 
 lb. 
 
 4. Suppression of truth. A fraud may be 
 as easily consummated by a suppression of the 
 truth as by the suggestion of a falsehood. Accord- 
 ingly, where a person wholly insolvent, against 
 whom an action for an amount larger than all of 
 his property had been for some time pending, 
 but no judgment entered therein, though long 
 due by default, purchased goods of one with 
 whom he had previously dealt to a limited ex- 
 tent, without stating anything as to his cir- 
 cumstances or as to the pending suit, and the 
 judgment was immediately perfected and ex- 
 ecution issued and the goods seized thereon ; 
 — Held, that these facts were sufficient to go to 
 the jury upon the question whetlier there was 
 a fraudulent purchase. Ct. App., 1878, Devoe v. 
 Brandt, 63 N. Y. (8 Sick. ) 462 ; Rev'g 58 Barb. 493. 
 
 5. Scienter essential. In order to sustain 
 an action for fraud in a sale, a scienter must be 
 alleged and proved. Com. App., 1873, Lamb v. 
 Kelsey, 64 N. Y. (9 Sick.) 646. 
 
 6. Where the complaint states a cause of action 
 based upon fraud in a sale, the plaintiff cannot, 
 without proof of scienter, recover as for a breach 
 of warranty. Lott, Ch. C., dissents. Com. App., 
 1872, iJossv.ilfa«Aer, 61 N.Y. (6 Sick.) 108; Kev'g 
 S. C, 47 Barb. 582. 
 
 7. False representations. Fraud is not es- 
 tablished by showing the falsity of statements 
 made to induce a purchase, which were simply 
 expressions of opinion and belief founded upon 
 information derived from others ; but it must be 
 shown in addition, that the person making them 
 knew tliem to be false at the time. Ct. App., 1872, 
 Hubbell V. Meigs, 60 N. Y. (5 Sick.) 480. 
 
 8. Where a party, with intent to cheat and 
 defraud another, induces him by fraudulent 
 means, to purchase stock, for value, which he 
 knows to be worthless, he is liable for the 
 damages sustained, whether the purchase is 
 made from him or another. lb. 
 
 9. An action founded on fraud and deceit can- 
 not be maintained, in the absence of proof that 
 the defendant believed, or had reason to be- 
 lieve, at the time of making the representations 
 charged, that they were false ; or that he as- 
 sumed or intended to convey the impression 
 that he had actual knowledge of their truth, 
 though conscious that he had no such knowl- 
 edge. Ct. App., 1871, Meyer v. Amidon, 46 N. Y. 
 (6 Hand,) 169. S. P., Oberlander v. Speiss, id. 
 175. 
 
 10. One who makes a material misrepresenta- 
 tion to the direct injury of another, without 
 knowing whether it is true or false, is guilty of 
 a wrong, and as liable for damages as if he had 
 known it to be untrue. He cannot retain the 
 property acquired thereby, or its proceeds, and 
 escape the imputation of fraud. Brooklyn City 
 Ct., Sp. T., 1873, Du Flon v. Powers, 14 Abb. 
 N. S. 391. 
 
 11. If a wife having a separate estate entrusts 
 her business to her husband as her general 
 agent, his knowledge and fraud become hers by 
 imputation. lb. 
 
 12. Several persons wlio by joint and concur- 
 rent action to the same end, obtain property 
 fraudulently, are jointly liable for the fraud. lb. 
 
356 
 
 FRAUD. 
 
 13. It is no excuse for fraudulent representa- 
 tions as to property, a mortgage of whicli is 
 sought to be sold, that the purchaser could hare 
 rekdily discovered the value of such property 
 by investigation, if it is located in.another State. 
 The purchaser in such a case is not bound to 
 make investigations, but may rely upon the rep- 
 resentations, lb. 
 
 14. Intent. All statements as to the value of 
 property sold are not mere matter of opinion ; 
 they may be, under certain circumstances, affirm- 
 ations of fact, and when known by the utterer 
 to be untrue, if made with the intention of mis- 
 leading the vendee, and relied upon by him, the 
 party guilty of tlie fraud will be liable for 
 whatever damage is sustained in consequence. 
 Ct. App., 1873, Simar v. Canaday, 53 N. Y. (8 
 Sick.) 298. 
 
 15. An actionable fraud, consisting in a false 
 representation, must have, as an essential in- 
 gredient, an intent to deceive. It may be com- 
 mitted by saying what is known to be false, or 
 by professing knowledge of the truth of a state- 
 ment which is untrue, but the intent is essential 
 in either case. N. Y. Supr. Ct., 1872, Livingston 
 V. Keech, 34 N. Y. Supr. (2 J. & Sp.) 547. 
 
 16. A statement made by a holder of bonds, 
 to induce another to accept them as payme'nt 
 for land, that " as far as he knew the bonds were 
 good," — Seld, to be substantially a statement 
 that they were worth their face, and if he in 
 fact knew that they were selling much below 
 par, it was a false representation for which an 
 action would lie. Sup. Ct., 1875, Oberlander v. 
 Rosswog, 4 Hun, 665. 
 
 17. in an action against the incorporators and 
 directors of a steamship company, charging 
 them, first, with fraudulently and corruptly com- 
 bining to organize said company for the purpose 
 of deceiving such of the public as might be in- 
 duced to become stockholders therein; and, 
 secondly, with inducing the plaintiff, by false 
 and fraudulent representations, to purchase 
 shares ; the plaintiff must satisfactorily prove, 
 not only that the representations were false in 
 fact, but that they were made with intent to de- 
 ceive, the presumption being in favor of inno- 
 cence. N. Y. Supr. Ct., 1873, Nelson v. Luling, 
 46 How. 855 ; S. C, 36 N. Y. Supr. (4 J. & Sp.) 
 544. 
 
 18. The intent to deceive may be inferred 
 from evidence showing that the party making 
 the representations knew of their falsity at the 
 time, or, at least, professed knowledge of their 
 truth when he was conscious that he had none. 
 lb. 
 
 19. False representations made in respect to 
 the solvency of third parties are not actionable, 
 uiiless made with intent to deceive, or unless the 
 defendants designedly concealed facts from the 
 plaintiffs who were injured thereby, which it 
 was important for them to understand in order 
 to form an intelligent conclusion concerning the 
 probable pecuniary ability of such parties. Sup. 
 Ct., 1875, Frisbee v. Fitzsimmons, 8 Hun, 674. 
 
 20. The intent to deceive may be inferred 
 from representations, either known to be false 
 by the person making them, or made by him 
 without any reason to believe them to be true, 
 lb. 
 
 21. Helied on. A purchaser of property 
 which is not present may rely on representa- 
 tions made by the vendor ; but if the property 
 is present, and nothing is said or done by the 
 vendor to induce the purchaser not to examine 
 it, and the falsity of the representation is palpa- 
 ble to the senses, the purchaser cannot be per- 
 
 mitted to omit examination, and claim that he 
 relied on the representation and was misled. 
 Sup. Ct., 1873, Vandewalker v. Osmer, 65 Barb. 
 556. 
 
 22. One who, in negotiating for a farm, asks 
 if there are any daisies on it, and is told there 
 are not, cannot claim that he relied on the repre- 
 sentation and was injured thereby, if he after- 
 ward, and before the purchase, went over the 
 farm, and gave no attention to ascertain whether 
 there were any there or not, unless it appears 
 that the daisies could not then be discovered, 
 lb. 
 
 23. A false statement as to the value of goods 
 sold, made by the vendor for the purpose of 
 obtaining a higher price therefor than he knows 
 them to be worth, will not sustain an action for 
 fraud by a purchaser who buys relying upon 
 such statement. In questions of value, the pur- 
 chaser must rely upon his own judgment. 
 Church, Ch. J., and Andrews, J., dissent. Ct. 
 App., 1874, Ellis V. Andrews, 56 N. Y. (11 Sick.) 
 83. 
 
 24. It is incumbent upon a party claiming to 
 recover in an action for deceit, founded upon 
 false representations, to show that he was in- 
 fluenced by them. While this may generally be 
 inferred from the circumstances, it is in all 
 cases a fact to be averred in the complaint and 
 maintained by evidence. Ct. App., 1874, Taylor 
 V. Guest, 58 N. Y. (18 Sick.) 262; Rev'g S. C, 
 45 How. 276. 
 
 25. A finding, in an action by the vendor of 
 bonds against the Vendee fol fraud, that an 
 agent of the latter knowing that his principal 
 had received an offer of 75 per cent, therefor, 
 told an agent of the vendor, to induce the latter 
 to sell at 60 per cent., that that sum was the 
 highest at which they could be sold, without 
 any finding that the vendor relied thereon, is not 
 sufBclent to sustain a judgment for the plaintiff, 
 lb. 
 
 26. Effect of. Fraud in procuring the as- 
 signment of a mortgage, avoids such assignment, 
 and the assignee cannot enforce it against the 
 mortgagor. Sup. Ct., 1871, Sail v. Erwin, 60 
 Barb. 349 ; Modified, 57 N. Y. (12 Sick.) 643. 
 
 27. Where an assignment of a lease contains 
 an agreement on the part of the assignor to pro- 
 cure a renewal thereof in favor of the assignee, 
 at its expiration, and the assignee agrees to pay 
 him $1,000, in case he procures such renewal, 
 and at the same time gives his note for that 
 amount payable at the expiration of the lease, 
 and takes back a receipt stating that the note is 
 to be void in case of the assignor's failure to 
 procure another lease, all those papers together 
 constitute the agreement, and a fraudulent 
 alteration of the note, as, by adding the words 
 "with interest," vitiates the contract, and the 
 holder cannot recover either on the note or on 
 the origirial agreement. Ct. App., 1874, Meyer 
 V. Huneke, 65 N. Y. (10 Sick.) 412; Rev'g S. C, 
 65 Barb. 304. 
 
 28. Relief against. A bank which is in- 
 duced to accept a draft drawn on it, by the ex- 
 hibition to it, at the time the draft is presented 
 for acceptance, of a bill of lading for cotton, 
 also indorsed to it, and the representation that 
 the draft is secured thereby, and by the con- 
 cealment of the fact, known at the time to the 
 party causing jt to be so presented, that the 
 cotton was subject to liens for purchase-money, 
 and that steps had been taken to reclaim it, if 
 it is obliged to pay such draft, can recover 
 the damages resulting to it from the insufficiency 
 of the bill of lading as a security, from the party 
 
FRAUDULENT CONVEYANCES. 
 
 357 
 
 guilty of the fraud. Sup. Ct., 1875, March v. 
 First Nat. Bank of Mobile, 4 Hun, 466. 
 
 29. Where a vendor, in negotiating a sale of 
 lands, after being told by the purchaser that he 
 would not purchase lands held under a tax title, 
 falsely represented that he " had good title and 
 the best kind of title " to such lands, and that 
 his grantor had them from a brother, who was a 
 surveyor of public lands, who had selected and 
 entered them, many years before, as choice 
 lands; knowing that his title was only a tax 
 title ; — Seld, that such representations consti- 
 tuted a fraud, for whicli the purchaser was en- 
 titled to repudiate the contract, and recover 
 damages from his vendor. Sup. Ct., 1871, Up- 
 dike V. Abel, 60 Barb. 15. 
 
 30. A party who has received the legal title 
 to land as security, and fraudulently refuses 
 afterward to execute a written agreement for its 
 conveyance to the borrower when he should re- 
 pay the loan with interest, in accordance with 
 their verbal agreement, will not be permitted to 
 use the statute of frauds as a cover or protec- 
 tion to his fraud. Ct. App., Dodge v. Wellman, 
 43 How. 427 ; Aff'g S. C, 42 Barb. 390. 
 
 31. A party who has been induced to ex- 
 change his lands for the lands of another, and a 
 
 - mortgage calling for a large sum but in fact of 
 but Uttle value, by the fraudulent representa- 
 tions of the party with whom he makes such 
 exchange as to the value of the property 
 covered by such mortgage and the promptness 
 of the mortgagor to pay interest, may retain 
 his bargain and recover damages for the fraud. 
 Sup. Ct., 1872, Vanneman v. Powers, 7 Lans. 181. 
 
 82. Although the wife of the person making 
 such representations held the legal title to the 
 mortgage so exchanged, and executed an assign- 
 ment thereof at her husband's request, and the 
 deed for the lands exchanged was made to her, 
 yet, if it appears that the husband was the real 
 owner of the mortgage, she cannot be held 
 liable for the fraud unless she was an active 
 participant therein. Mere passive acquiescence 
 in the fraud of her husband does not make her 
 Uable therefor. S. C, 56 N. Y. (11 Sick.) 39. 
 
 38. Where lessees of a building, occupied in 
 part by sub-tenants, after agreeing with such 
 sub-tenants to procure a new lease for a term of 
 years, at the lowest possible rent, and to sublet 
 to them the portions then occupied by them for 
 one-half the rent of the whole, fraudulently 
 conceal from the latter the amount of rent 
 which they have agreed to pay by such new 
 lease, and falsely represent it to be much larger 
 than it is in fact, and thus induce them to sign 
 alease for a much larger rent than one-half the 
 the actual rent of the wliole building ; — Held, 
 that the court would either reform the lease, or 
 relieve the sub-tenants from the obligation to 
 pay more than one-half the entire rent. Sup. 
 Ct., 1872, KiHland v. Schanck, 61 Baib. 348. 
 
 34. Where, by means of a fraudulent combina- 
 tion between the attorney of ajudgmentcreditor 
 and the purchaser, real estate of the value of $13,- 
 000 was sold on execution for $180, the judgment 
 debtors being wholly ignorant thereof, and leases, 
 mortgages and deeds, fair on their face, but in 
 fact wholly fictitious, were afterward executed 
 for the purpose of preventing such debtors from 
 recovering back the property ; — Held, that such 
 sale and subsequent conveyances should be set 
 aside ; that all the parties concerned in the trans- 
 action were answerable for the whole of it, and 
 that complete restitution should be ordered ; 
 and if any of the defendants were entitled to an 
 adjustment of liabilities as between themselves, 
 
 it was for them to call the attention of the court 
 to it. N. y. Supr. Ct.. 1875, Bruce v. Kelly, 39 
 N. Y. Supr. (7 J. & Sp.) 27. 
 
 35. If land, a reconveyance of which is sought 
 in an equitable action, on the ground that the 
 plaintiff was induced by fraud to exchange it 
 for a worthless mortgage, has been conveyed to 
 third parties not before the court, nor affected 
 by notice, the plaintiff cannot have a reconvey- 
 ance thereof, but may take judgment for dam- 
 ages and costs. Brooklyn City, Ct., Sp. T., 1873, 
 DuFlon V. Powers, 14 Abb. N. S. 891. 
 
 36. Complaint for. A complaint in an action 
 to recover damages for falsely representing that 
 certain mortgage bonds delivered to the plaintiff 
 as security were first mortgage bonds, cannot 
 be sustained on demurrer where it does not 
 allege that any personal representations were 
 made by the defendants, but that under a con- 
 tract to deliver first mortgage bonds they deliv- 
 ered such as on their face were described as 
 first mortgage consolidated bonds, but which, as 
 appeared by the mortgage accompanying them, 
 were not then so, but would become so as soon 
 as they should be substituted in place of the old 
 bonds as therein provided. Sup. Ct., Sp. T., 
 1875, Caylus v. N. Y., Kingston ^ Syr. R. R. Co., 
 49 How. 100. 
 
 FRAUDULENT CONVEYANCES. 
 
 1. A judgment may be assailed collaterally 
 for fraud, by persons not parties or privies to it, 
 who are injured by the fraud. Sup. Ct., 1866, 
 Spicer v. Waters, 65 Barb. 227. 
 
 2. Where the title of a purchaser of logs on 
 execution is assailed on the ground that the judg- 
 ment and 'sale were fraudulent, and the only 
 fraud imputed is that which is presumed from 
 the omission to change possession after the pur- 
 chase, the court might hold that presumption 
 rebutted by the character of the property, did 
 not tlie statute require the question of fraudu- 
 lent intent to be submitted to the jury. lb. 
 
 3. Conveyances of real estate. Where a 
 person in embarrassed circumstances executed 
 a voluntary conveyance of real estate, without 
 consideration, to his wife's mother, the wife 
 joining therein, with the understanding and 
 upon the condition that the premises should be 
 conveyed back to his wife ; — Held, that such 
 conveyance was fraudulent and void, as against 
 a creditor, or one whose property, then in pos- 
 session of the grantor, was then or afterward 
 converted by him to his own use. Sup. Ct., 1873, 
 Pendleton v. Hughes, 65 Barb. 136. 
 
 4. This is 80, especially, where such deed was 
 not put on record until about the time the grant- 
 or failed, and the person entrusting such prop- 
 erty to him did so relying upon his apparent 
 ownership of such real estate. lb. 
 
 5. Where a husband had used the money of 
 his wife in his business for 12 or more years, 
 without any recognition of its separate exist- 
 ence by any written instrument whatever, and 
 without any accounting between them for prin- 
 cipal or interest, a subsequent conveyance by 
 him of all his property to her, to secure her 
 claim of less than half its value, he being at the 
 time insolvent ; — Held, fraudulent as against his 
 antecedent creditors. Sup. Ct., 1864, Briggs v. 
 Mitchell, 60 Barb. 288. 
 
 6. A conveyance by husband to wife. of prop- 
 erty previously conveyed to him under an agree- 
 ment that he should, whenever requested, con- 
 
358 
 
 FRAUDS, STATUTE OF. 
 
 vey it to his wife, by whom it was paid for and 
 occupied, — Held, not fraudulent as against a cred- 
 itor wliose claim was not contracted on the 
 strength of the husband's ownership of the 
 property. Sup. Ct., 1874, Holden v. Burnham, 2 
 Hun, 678. 
 
 7. Creditors have a right to all the property 
 of the debtor, not exempt from levy and sale on 
 execution, and every transfer or contrivance 
 for the purpose of preventing them from obtain- 
 ing payment of their debts, is illegal ; and a 
 conveyance of land, made by the debtor and 
 received by the grantee for that purpose, is 
 fraudulent and void as against such creditors, 
 even though the grantee pays full value for the 
 land. Ct. App., 1858, Fullerton v. Viall, 42 
 How. 294. 
 
 8. If such conveyance was in fact made in 
 trust for the debtor, and to keep the property out 
 of the reach of his creditors, or to enable him to 
 make a subsequent disposition of it to such of 
 his creditors as he might thereafter prefer or 
 select, then the conveyance is fraudulent and 
 void as against the then existing creditors. lb. 
 
 9. If such land be conveyed by the fraudulent 
 grantee to a bona fide purchaser, before judg- 
 ment against the original grantor, the lien of the 
 judgment will not attach to the land, but in 
 equity it will be held to attacli to the proceeds 
 thereof in the hands of the fraudulent grantee, 
 nn 1 he will be held liable for the whole amount 
 I uceived^by him, less legal incumbrances paid, 
 even though he has paid part or the whole of 
 the purchase-money to his grantor. lb. 
 
 10. A deed of real estate made by a person 
 about to go into business, to his father-in-law, 
 without any money consideration, but with in- 
 tent to save it for himself in case he should be 
 unfortunate in business, and which was not 
 recorded nor the trust made public, — Held void 
 as against subsequent creditors of the grantor. 
 Sup. Ct., 1876, Hawley v. Sackett, 3 Hun, 605. 
 
 11. Want of consideration alone is not suffi- 
 cient ground, under 2 R. S. 137, sec. 4 (2 Edm. 
 Stats. 142), for adjudging a conveyance fraudu- 
 lent as against creditors or purchasers. N. Y. 
 Supr. Ct., 1875, Ghilds v. Connor, 48 How. 513 ; 
 S. C, 38 N. Y. Supr. (6 J. & Sp.) 471. 
 
 12. A conveyance of real estate made by a 
 husband to his wife, and shown to be a rea- 
 sonable and proper provision for her, and pur- 
 chased partly with her money, so that she 
 was in equity her husband's creditor, the hus- 
 band being at the time but little in debt and 
 having more than property enough to pay his 
 debts, cannot be invalidated by his subsequent 
 inability to pay a debt then existing. lb. 
 
 13. The fact that a grantor of real estate 
 remains in possession after the conveyance, 
 while proper to be considered in connection 
 with other evidence upon the question of a 
 fraudulent intent, is not conclusive of that 
 fact. Ct. App., 1871, GluU v. Newkirh, 46 N. 
 Y. (1 Sick.) 684. 
 
 14. Fraud in both parties necessary. A 
 conveyance of real estate for a fair and reason- 
 able consideration will not be declared fraud- 
 ulent and void, as against the grantee, unless 
 either a fraud or fraudulent intent be made to 
 appear on his part as well as on tlie part of the 
 grantor. N. Y. C. P., 1873, Laidlaw v. Gilmore, 
 47 How. 67 ; AfE'd, Ct. App., 1874. 
 
 15. Taking such a conveyance with knowl- 
 edge that the grantor was in embarrassed cir- 
 cumstances, would not necessarily imply a 
 fraudulent inteilt on the part of the grantee. lb. 
 
 16. Where the grantee was, prior to tlie con- 
 
 veyance, a large creditor of the grantor for 
 money loaned in good faith to nearly the full 
 value of the property conveyed, and such 
 indebtedness was cancelled in consideration of 
 the conveyance ; — Held, not fraudulent. lb. 
 
 17. By trustee to cestui que trust. An 
 agreement between mother and son, whereby 
 she joins with him in conveying land in which 
 they are jointly interested, and allows him to 
 enjoy the proceeds, in consideration of his prom- 
 ise, at her death, to convey other land be- 
 longing to her and which would descend to 
 himself as heir, to his son, makes him a trustee 
 for his son, and a conveyance by him to his son 
 of such land, after the death of his mother, is 
 not fraudulent as to his creditors, although they 
 may have suits then pending against him. Sup. 
 Ct., 1874, Norton v. Mallory, 1 Hun, 499. 
 
 18. Conveyance to one, payment by 
 another. The statute of uses and trusts (1 B. 
 S. 728, sees. 51-52 ; 1 Edm. Stats. 677), makes the 
 fact that the consideration is paid by one for a 
 grant to another, without other evidence, pre- 
 sumptive evidence of fraud, but not conclusive, 
 and casts upon the grantee the burden of dis- 
 proving a fraudulent intent. Ct. App., 1874, 
 Dmlap V. Hawkins, 59 N. Y. (14 Sick.) 342. 
 
 19. This presumption of fraud may be over- 
 come by proof that the person paying the con- 
 sideration was not at the time insolvent or con- 
 templating insolvency, but had other means 
 ample and sufficient to pay his debts, and was 
 in such circumstances that inability to meet liis 
 obligations could not reasonably be supposed 
 to have been in his mind. lb. 
 
 20. Voluntary conveyance by solvent 
 person. It is only when one makes a volun- 
 tary conveyance in good faith, with no intent to 
 defraud his creditors, that it will be upheld by 
 proof that when he made it he retained an 
 ample estate to pay all his debts. Com. App., 
 1873, Fox V. Mayer, 54 N. Y. (9 Sick.) 125. 
 
 21. Future creditors. Our statute of uses 
 and trusts only makes conveyances fraudulent 
 and void as against the creditors of the grantor 
 existing at the time of the conveyance ; and a 
 voluntary conveyance will be upheld as against 
 the subsequent creditors of the grantor. Sup. 
 Ct., 1871, Lormore v. Campbell, 60 Barb. 62. 
 
 22. A finding by a referee, that conveyances 
 were made with intent to hinder, delay and de- 
 fraud the future creditors of the grantor, when 
 that is not charged in the complaint, and the 
 proof shows that there were then no creditors to 
 be defrauded, is in law simply absurd. lb. 
 
 23. The equitable interest of a wife in land 
 conveyed to her husband, by reason of her 
 having paid part of the purchase-money, will be 
 protected as against her husband's subsequent 
 creditors, in an action to set aside a conveyance 
 of the property from him to her. lb. 
 
 FRAUDS, STATUTE OF. 
 I. Sales and conveyances intended 
 
 TO HINDER, DELAY OK DEFRAUD 
 CREDITORS 359 
 
 II. Conveyances and contkaots fok the 
 
 CONVEYANCE OP LANDS OK INTERESTS 
 THEREIN 360 
 
 III. Agreements not to be performed 
 
 WITHIN ONE YEAR 361 
 
 IV. Special promises to answer for 
 
 DEBT OF another 301 
 
 V. Contracts for the sale op chattels. 362 
 
FRAUDS, STATUTE OF. 
 
 359 
 
 I. Sales and conveyances intended to hin- 
 der, DELAY OE DErBADD OREDITOBS. 
 
 1. Assignment 'with preferences. An 
 assignment made by a married woman at the 
 instance of her husband, as a part of a plan 
 conceived by him for defrauding creditors, in 
 pursuance of which he had obtained from her 
 a power of attorney to transact business in her 
 name, and, after acquiring by means of it, and 
 by false representations, a fictitious credit, had 
 made large purchases, selling again in the orig- 
 inal packages at less than cost, she knowing 
 nothing of the fraudulent design, but being 
 merely an innocent instrument in his hands, 
 having no voice in the preferences except one 
 to her mother ; — Hdd, fraudulent and void. Ct. 
 App., 1871, Warner v. Warren, 46 N. Y. (1 
 Sick.) 228. 
 
 2. Transfer between attorney and client. 
 A transfer of property made by a debtor to his 
 attorney, under the advice of such attorney, for 
 the purpose of hindering and delaying the cred- 
 itors of the grantor, will not be sustained even 
 as against the grantor, in favor of the grantee 
 or of his assignee with notice. Sup. Ct., 1874, 
 Goodenough v. Spencer, 46 How. 347 ; S. C, 15 
 Abb. N.S. 248. - 
 
 3. In such a transaction the parties are not 
 regarded as in pari delicto, but the client will be 
 relieved if it can be done without injury to an 
 innocent purchaser. lb. 
 
 4. Composition with creditors. In a 
 composition with creditors, every agreement or 
 arrangement by which an advantage is secured 
 by any one or more of the creditors which is 
 denied to others, is a fraud upon those from 
 whom it is concealed, although it neither has 
 nor can have the effect of depriving them of any 
 portion of the amount which they had agreed 
 to receive, and all suqji agreements are void. 
 N. Y. Supr. Ct., 1872, Eldridge v. Strenz, 34 N. 
 Y. Supr. (2 J. & Sp.) 491. 
 
 6. Conditional sale. A sale of a stock of 
 goods made by a father to his son, on condition 
 that the title should remain in the former until 
 the goods were paid for and certain other debts 
 paid, made in good faith and without fraudulent 
 intent, is valid as against creditors of the son. 
 Sup. Ct., 1874, Powell V. Preston, 1 Hun, 513. 
 
 6. A further agreement, that goods subse- 
 quently purchased by the son from third parties 
 should become the property of the father, as 
 fast as purchased, on like conditions, gives him 
 a right superior to other creditors of the son, 
 and is valid against them, if he takes possession 
 under it before they levy on the goods. lb. 
 
 7. A gift of money made by a husband to 
 his wife, while he is indebted to various cred- 
 itors, is by statute declared to be fraudulent as 
 to those creditors, and if made with intent to 
 defraud existing creditors, it is also void as to 
 future creditors. Sup. Ct, 1872, Partridge v. 
 Stokes, 44 How. 381. 
 
 8. Where there is evidence of the fraudulent 
 intent, it cannot be overcome by loose testi- 
 mony as to payments made for the husband, 
 and repayments made to him, without specifica- 
 tion of time, place and amount. lb. 
 
 9. A gift by husband to wife of property 
 which is exempt by law from the claims of 
 creditors, such as the bounty to which he is 
 entitled as a soldier (sec. 4, ch. 578, Laws 1864), 
 is not fraudulent as to such creditors, and they 
 can assert no claim thereto. Sup. Ct., 1872, 
 Whiting v. Barrett, 7 Lans. 106. 
 
 10. t7pon proof that a judgment debtor when 
 
 insolvent, assigned property through a third per- 
 son to his own wife, without payment of any 
 consideration, the whole transaction being com- 
 pleted at one time, unexplained, a fraudulent 
 intent on the part of the debtor may properly be 
 presumed. Sup. Ct., 1871, Bennett v. McGuire, 6 
 Lans. 183. 
 
 11. A knowledge of such intent on the part of 
 the intermediate assignee and the wife may also 
 be presumed from the same circumstances. lb. 
 
 12. A husband may give his labor to his wife, 
 as well as to any other person, for his board, 
 washing and clothing, and his creditors cannot 
 prevent it ; but if, after he has acquired prop- 
 erty by his labor, he invests it in the name of 
 his wife, or expends it to enhance the value of 
 her separate property, a resulting trust may 
 arise in their favor, to the extent of the money 
 or property so invested. Sup. Ct, 1869, Whedon 
 V. Champlin, 59 Barb. 61. 
 
 13. If a debtor, instead of paying his debts, 
 uses his personal property upon the real estate 
 of liis wife or a third party, so that it becomes a 
 part of such realty, for the purpose of defraud- 
 ing his creditors, and preventing them from ob- 
 taining satisfaction of their demands out of his 
 property, with the knowledge and consent of the 
 owner of the realty, the judgment creditor may 
 follow the property into the hands of the owner 
 of the premises thus benefited, and fasten his 
 judgment as a lien upon such premises to the 
 extent of the debtor's property merged therein. 
 Sup. Ct., 1871, Isham v. Schafer, 60 Barb. 317. 
 
 14. If a debt was created by the transaction 
 as between the owner of the premises and the 
 judgment debtor, the judgment will be fastened 
 upon such debt; otherwise, upon the real estate 
 in which the debtor's property is merged. lb. 
 
 15. This is so only when the debtor has con- 
 tributed something in the nature of property, 
 which could be appropriated and converted into 
 money, by legal process, to satisfy a debt ; and 
 not when he has merely bestowed labor or skill 
 gratuitously for the benefit of another. lb. 
 
 16. "Where it appeared that after a debtor had 
 made a general assignment of his goods, &o., he 
 procured a farmer to purchase them in bulk, 
 and for some six years claimed to act as agent 
 for such farmer at a fixed salary, in carrying on 
 the same and other miscellaneous business, but 
 kept no account of his business and never set- 
 tled with his supposed principal, and then closed 
 up a bank-account previously kept in his own 
 name as agent, claimed to have' terminated his 
 first agency, and assumed to act as agent for his 
 wife, in whose name he had purchased real es-' 
 tate and opened a bank account, she not having 
 previously had any property ; — Held, in an action 
 by a creditor against husband and wife, to reach 
 the husband's interest in the real estate so con- 
 veyed to the wife, that there was sufficient evi- 
 dence of fraud to sustain a finding of fraudulent 
 intent to cover up the husband's interest in the 
 property. Sup. Ct., 1872, Shepherd v. Hill, 6 
 Lans. 387. 
 
 17. Sade of entire property. The law will 
 not, from the mere fact of a sale by an insolvent 
 of all his property, real and personal, to an in- 
 dorser upon his notes, and the receipt by him in 
 payment, of good notes for its full value less the 
 amount of the indorsements, payable in 6, 12 
 and 18 months, of necessity conclude an actual 
 fraudulent intent, so as to render the sale void. 
 Ct. App., 1871, Clark v. Wise, 46 N. Y, (1 Sick.) 
 612 ; Kev'g S. C, 57 Barb. 416 ; 39 How. 97. 
 
 18. In determining whether a sale, by a debtor 
 in embarrassed circumstances, of his whole stock 
 
360 
 
 FRAUDS, STATUTE OF. 
 
 of goods, was fraudulent as against creditors, 
 the fact that the purchaser gave his promissory 
 notes for the greater part of the consideration, 
 and that there was a possibility that the notes 
 might go into the hands of one who could no 
 more recover on them than could the payee him- 
 self, in case the sale and purchase were fraud- 
 ulent, may be considered, though they are not 
 of themselves conclusive. N. Y. Supr. Ct., 1873, 
 Starin v. Kelly, 36 N. Y. Supr. (4 J. & Sp.) 866. 
 
 19. When that possibility has become a fact, 
 by the transfer of the purchaser's notes to a 
 creditor of the payee on account of a past in- 
 debtedness no part of which is satisfied or dis- 
 charged, the attention of the jury may also be 
 called to that circumstance in connection with 
 the legal rule. lb. 
 
 20. The mere fact that the seller made the 
 transfer for tlie purchaser's notes with a view of_ 
 placing his property out of reach of legal pro- 
 cess, and to compel the creditors to take the 
 notes, does not make the transfer void. lb. 
 
 21. — of entire partnership property. A 
 sale of the entire effects of an insolvent co-part- 
 nership, upon credit, for a reasonably fair price, 
 though its necessary effect is to hinder and de- 
 lay creditors, does not per se establish a fraud- 
 ulent intent; and altliougli made by the vendor 
 with intent to hinder, delay and defraud his 
 creditors, yet that fact will not in any manner 
 affect or impair the ti.tle of a bona fide purchaser 
 without notice or knowledge of the fraud. Com. 
 App., 1871, Ruhl V. Phillips, 48 N. Y. (3 Sick.) 
 125 ; Rev'g S. C, 2 Daly, 45. 
 
 22. A conveyance by one partner, though with 
 the assent of the other members of the firm, of 
 the corpus of the partnership property, to secure 
 his individual debt, i« fraudulent and void as to 
 creditors of the firm, unless the firm were sol- 
 vent at the time, and sufficient property would 
 remain, over and above that devoted to tlie pay- 
 ment of the individual debt, to pay the debts of 
 the firm. Gt. App., 1873, Menagh v. Whitwdl, 52 
 N. Y. (7 Sick.) 146. 
 
 23. An agreement between partners of an in- 
 solvent firm, that individual debts of one of 
 them shall be paid out of the assets of the firm, 
 is fraudulent as against creditors and may be 
 repudiated by a receiver of the firm. Sup. Ct., 
 1875, Leslie v. Eugg, 4 Hun, 410. 
 
 24. Transfer of note. Where a husband 
 transferred an overdue note payable to himself 
 some eight months before his wife commenced 
 a suit for divorce, and the maker paid it to the 
 
 ^ holder, after judgment for divorce and alimony 
 had been entered in such suit, and after he had 
 been notified that the receiver of the husband 
 appointed on supplementary proceedings in such 
 suit claimed it as transferred in fraud of the 
 wife's judgment, — Held, that such transfer and 
 payment could not b& adjudged fraudulent, so 
 as to hold the maker liable to pay the note 
 again to the receiver, without proof of actual 
 fraud on his part. Com. App., 1871, Tern/ v. 
 WaU, 47 How. 52; S. C, 48 N. Y. (8 Sick.) 657. 
 
 25. The fact that the husband had no 
 other property out of which the judgment for 
 alimony could be satisfied is not sufficient to es- 
 tablish such fraud, nor can the failure of the 
 holder, who i eoei ved such payment, to appear 
 and answer in the suit to set aside such trans- 
 fer be used as evidence against the maker. lb. 
 
 26. Transfer in excess of debt. A cred- 
 itor to whom his debtor has transfered property, 
 not only to pay the debt due him, but for the 
 purpose of preventing his other creditors from 
 appropriating any part of it to the payment of 
 
 their claims, may be required to pay over to the 
 receiver of the debtor all the property received 
 in excess of his claim. Sup. Ct., 1874, Paten v. 
 Bushnell, 1 Hto, 319. 
 
 n. Conveyances and oontka'Cts foe the con- 
 
 VBTANOE OP LANDS OR INTEKESTS THEREIN. 
 
 27. What within the statute. A contract 
 by a land-owner to cut the standing timber upon 
 his land into cordwood and deliver it to another, 
 is not a sale of an interest in lands, and needs no 
 writing to give it validity. Com. App., 1872, 
 Killmore v. Howlett, 48 N. Y. (3 Sick.) 569. 
 
 28. The statute of frauds does not apply to 
 nor affect a parol agreement for a partnership to 
 buy, deal in and improve lands, where neither 
 party contemplates Or attempts the conveyance 
 of any lands by himself to the other ; neither is 
 it so broad as to prevent proof by parol of an 
 interest in lands. Com. App., 1873, Chester v. 
 Dickinson, 45 How. 326 ; S. C, 54N. Y. (9 Sick.) 1. 
 
 29. A verbal agreement whereby an owner of 
 lands employs anotlier to sell his lands for not 
 less than a certain price, and agrees to give him 
 a specified sum in case of such sale, saying, " I 
 give you the refusal of this property from week 
 to week, and if you do sell it during that time, 
 you can have the deed in your own name, so 
 that you can give the deed to the party purchas- 
 ing," is an agreement concerning an interest in 
 lands, and within the statute of frauds, and to 
 be valid must be in writing. N. Y. Supr. Ct. 
 Cir., 1870, ^adenAop v. McCahill, 42 How. 192. 
 
 30. Since the enactment of ch. 322, Laws of 
 1860 (2 Edm. Stats., 139, sec. 7), it is not necessary 
 that a trust in lands should be proved, by a deed 
 or conveyance creating it, but it may be proved 
 by any writing, subscribed by the party declar- 
 ing it. Com. App., 1870, Cook v. Barr, 44 N. Y. 
 {5 Hand,) 156. 
 
 31. A pleading, in an action under the Code, 
 made by the party to be charged, if the trust be 
 sufficiently manifested in it, is admissible to 
 prove such trust against such party in any 
 other action. lb. 
 
 32. A verbal lease of premises for a term of 
 two years, made by one who falsely assumes to be 
 agent for the owner, cannot be enforced against 
 either ; nor is the agent liable in any form of 
 action in which proof of the contract is necessary 
 to sustain it. Ct. App., 1873, Dung v. Parker, 68 
 N. Y. (7 Sick.) 494 ; Eev'g S. C, 3 Daly, 89. 
 
 33. Expression of consideration. A 
 written contract to sell and convey land " in 
 consideration of the sum of $700," signed and 
 sealed by tlie parties, sufficiently expresses the 
 consideration to satisfy the statute of frauds. 
 Sup. Ct., 1866, Foot V. Webb, 59 Barb. 38. 
 
 34. An agreement in a contract for the sale of 
 lands, that all machinery put upon them by the 
 vendee shall, on his failure to pay, belong to 
 the vendor and be considered part of the realty, 
 although no other consideration be expressed 
 for the promise of the latter to convey, is 
 sufficient to take the contract out of the statute 
 of frauds. Ct. App., 1874, Bicknell v. Lancaster 
 City and County Fire Ins. Co., 58 N. Y. (13 
 Sick.) 677. 
 
 85. Not sealed. An instrument in writing, 
 signed by one having only an equity of redemp- 
 tion in the lands described in it, purporting to 
 convey all his interest, estate and title in such 
 lands, is not a deed, but a mere assignment of 
 the equity of redemption, and is valid though 
 not under seal. Ct. App., 1871, Stoddard T. 
 Whiting, 46 N. Y. (1 Sick.) 627. 
 
FRAUDS, STATUTE OF. 
 
 361 
 
 36. Part payment. Payment of part of the 
 purchase-money upon a parol contract for the 
 Bale of lands, will not operate to take such con- 
 tract out of the statute of frauds, so as to en- 
 able the vendor to sue for the balance. Ct. 
 App., 1871, Caggar v. Lansing, 43 N. Y. (4 Hand,) 
 660. 
 
 HL Agebbmbnts not to be pekfobmed with- 
 in ONE YEAR. 
 
 87. For services. An entry upon the em- 
 ployment, under a verbal contract for a year's 
 services to commence infutoro, does not create a 
 new contract, so as to take the case out of the 
 statute of frauds. Com. App., 1872, Oddy v. 
 James, 48 N. Y. (3 Sick.) 686. 
 
 38. Executed. Where a parol agreement 
 for two years' services has been fully performed 
 by one party, the other cannot avail himself of 
 the statute of frauds to defeat a recovery 
 thereon. Com. App., 1873, Tyler v. Church, 
 54 N. Y. (9 Sick.) 632. 
 
 IV. SpEOIAL PK0MISE8 TO AUSWBK FOK DEBT 
 OF ANOTHER. 
 
 89. ■When within the statute. A verbal 
 agreement between two parties, whereby one, 
 for a good consideration, agrees to pay the debt 
 of the other to a third party, is not within the 
 statute of frauds, but may be enforced by such 
 third party. Sup. Ct., 1875, Cox v. Weller, 
 3 Hun, 612. 
 
 40. An agreement by the second indorser of 
 a promissory note with the first indorser, that 
 if the latter will pay the note he will repay him 
 In goods, is founded on a good consideration ; 
 viz., the assumption of a different relation and a 
 more onerous duty ; and it is not within the 
 statute of frauds, being, not an agreement to 
 answer for the debt or default of another, but a 
 new and independent agreement based upon a 
 new consideration between the parties. Ct. 
 App., 1874, Sanders v. Gillespie, 59 N. Y. (14 
 Sick.) 250 ; Aff'g S. C, 64 Barb. 628. 
 
 41. A promise to a creditor to pay a debt due 
 him from another, made in pursuance of an 
 agreement between creditor, debtor and prom- 
 isor, whereby the debt becomes extinguislied, 
 is not within the statute of frauds, and is valid 
 though not in writing. Com. App., 1872, 
 Meriden Britannia Co. v. Zingsen, 48 N. Y. 
 (3 Sick.) 247 ; Aff'g S. C, 4 Eob. 312. 
 
 42. A promise by a landlord to one who had 
 contracted with a sub-tenant to make repairs on 
 the leased premises, and had rescinded liis con- 
 tract on the failure of the sub-tenant to pay as 
 agreed, that he will pay such contractor a cer- 
 tain sum, agreed to be paid to the sub-tenant, if 
 the contractor will go on and complete the re- 
 pairs, is an original one, and in no sense collat- 
 eral, or a promise to pay the debt of another, 
 and being founded on a good consideration, is 
 valid and binding. Sup. Ct., 1872, Tallman v. 
 Bressler, 65 Barb. 369. 
 
 43. Where a creditor, holding a deed of lands 
 j,s security for his debt, conveyed them back 
 to the debtor upon a third party's pledging to 
 him certain railroad bonds and agreeing to re- 
 deem them at par within a year ; — Held, in an 
 action to foreclose the lien thereon, that the 
 agreement was an independent one, founded on 
 a good consideration, and not a promise to 
 answer for the debt, default or miscarriage of 
 another, and was valid. Ct. App., 1875, Booth v. 
 Eighmie, 60 N. Y. (15 Sick.) 238. 
 
 44. A promise made by two persons to each 
 other, upon forming a co-partnership, that in 
 consideration of the transfer to tlie firm of all 
 the assets of an old firm of which one of them 
 had been a member, the new firm should assume 
 and pay all the debts of the old firm, is founded 
 upon a new and distinct consideration moving 
 between the parties, and although not in writing 
 is valid, and not within the statute of frauds, 
 and may be enforced by a creditor of the old 
 firm. N. Y. C. P., 1872, Schindler v. Euell, 45 
 How, 33 ; 4 Daly, 553. 
 
 45. Where goods sold are delivered to one 
 party for his use, upon the parol promise of an- 
 other to be responsible, the question whether 
 the transaction is a sale to the promisor or a 
 parol guaranty upon his part of payment by the 
 other, is one of fact to be determined from the 
 language used, interpreted in the light of sur- 
 rounding circumstances and the acts of the par- 
 ties. To make such proraiser liable therefor, the 
 debt must be his-exclusively, and the fact that 
 the vendor charged the goods to him is not con- 
 clusive. Ct. App., 1874, Cowdin v. Gottgetreu, 55 
 N. Y. (10 Sick.) 650. 
 
 46. Where a contractor for the erection of 
 buildings on lands of another, to whom an in- 
 stalment would become due when the first 
 beams were on, sub-let the cellar work, and gave 
 the sub-contractors an order on the land-owner 
 for the contract price of the work, payable when 
 it was completed and approved by himself, and 
 such order was accepted, the sub-contract, order 
 and acceptance being on the same paper, — Held, 
 in an action on the order, that the whole paper 
 was to be construed as a single transaction, that 
 the acceptance of the order was not a guarantee 
 or agreement to answer for the debt, defaulter 
 miscarriage of another, so as to be within the 
 statute of frauds, but was an original agreement 
 by him, as a party to the contract, for a suffi- 
 cient consideration appearing in the papers ; and 
 that the order and acceptance operated as an 
 appropriation of so much of the moneys to be- 
 come due the original contractor under his con- 
 tract. Ct. App., 1875, Gallagher v. Nichols,60 
 N. Y. (15 Sick.) 438. 
 
 47. Where one person employs another to do 
 certain work, and tells him that a third person 
 will pay for such work, the latter cannot be made 
 liable therefor under any principle of law relat- 
 ing to principals and agents, or to ratification, 
 without proof that such representation was made 
 known to and assented to by him, merely be- 
 cause, whtle the work was going on, he was in- 
 troduced by the employer as his partner and co- 
 adjutor in the work, and expressed his satisfac- 
 tion with what was being done, and told the 
 employe to go on and do the work ordered and 
 he would pay for it. N. Y. Supr. Ct., 1873, Stid- 
 ham V. Sanfard, 36 N. Y. Supr. (4 J, & Sp.) 341. 
 
 48. Where the purchaser of a saw mill hired 
 the same man to run it who had run it for the 
 former owner, saying tliat he would pay him 
 the same wages he had been receiving, and that 
 he had made arrangements to and would pay 
 him the back pay due him from the former own- 
 er, — Held that the latter promises were void by 
 the statute of frauds. Sup. Ct., 1875, Belknap 
 V. Bender, 4 Hun, 414 
 
 49. Memorandum. Where A, after having 
 verbally agreed to become security to W for the 
 debt of K, executed an agreement, under seal, 
 between himself and K, which recited that K 
 was indebted to W in the sum of $2,000, and 
 that A had become security for the payment of 
 said money, and provided that L, to whom K 
 
362 
 
 FRAUDS, STATUTE OF. 
 
 had transferred a $2,000 mortgage as collateral 
 security, should, after the satisfaction of his 
 own claim, hold said mortgage to secure A for 
 his liability as security, — Held, that such agree- 
 ment was a sufficient memorandum of A's prom- 
 ise to pay K's debt, within the statute of frauds. 
 Sup. Ct., 1875, Kuhn v. Brown, IHim, 244. 
 
 V. Contracts for the sale of chattels. 
 
 50. 'What -within the statute. A verbal 
 agreement for the sale of a half interest in an 
 adventure undertaken by one party, both to 
 share equally in the result, is an ejdecutory con- 
 tract to sliare a possible loss in consideration of 
 sharing an expected profit, not a sale of person- 
 al property, and is therefore not within the 
 statute of frauds. Ct. App., ^871, Coleman v. 
 Eyre, 45 N. Y. (6 Hand,) 38. 
 
 51. A parol agreement by one of two joint 
 debtors to set off the joint debt against an in- 
 debtedness due from their creditor to himself, 
 and BO cancel the debt of such creditor, is not 
 a sale or transfer and is not within the provis- 
 ions of the statute of frauds. Com. App., 1872, 
 Brand v. Brand, 48 N. Y. (3 Sick.) 675. 
 
 52. When the subject of a contract of sale, 
 gold is considered, not as money, but as a com- 
 modity ; and the contract must be made in 
 compliance with the statute of frauds or it will 
 be void. Ct. App., 1874, Peahody r. Speyers, 56 
 N. Y. (11 Sick.) 280. 
 
 53. A parol contract for the purchase of a 
 stallion colt for $1,000 if the seller will have him 
 gelded and keep him until he gets well, is one of 
 sale, and is void under the statute of frauds. 
 Sup. Ct., 1874, Bates v. Coster, 1 Hun, 400. 
 
 54. A sale by parol of a share, amounting to 
 more than $50, of a salary yet to be earned, if 
 otherwise valid, would be void by the statute of 
 frauds. N. Y. C. P., 1873, Billings v. O'Brien, 
 45 How. 392 ; S. C, 14 Abb. N. S. 238 ; 4 Daly, 
 556. 
 
 55. To manufacture. A contract to manu- 
 facture a tent out of materials to be furnished 
 by the manufacturer, is not within the statute of 
 frauds. Sup. Ct., 1875, Higgins v. Murray, 4 
 Hun, 565. 
 
 66. A verbal contract to procure materials of 
 a specified quality, to manufacture it and to de- 
 liver to the, purchaser, as wanted, a specified 
 quantity of the manufactured articles, is not 
 within the statute of frauds. Com. App., 1872, 
 Veal V. Maxwell, 51 N. Y. (6 Sick.) 652. 
 
 57. A contract for the sale of goods, &c., on 
 which work and labor is to be thereafter be- 
 stowed, in order to make and put it in the con- 
 dition contemplated by the contract, is not with- 
 in the statute of frauds. Sup. Ct., 1862, Ferren 
 ,. O'fiara, 62 Barb. 517. 
 
 58. A parol agreement whereby one party 
 agrees to sell to the other a quantity of malt to 
 be thereafter manufactured by the former and 
 delivered, from time to time, as wanted, and the 
 other party agrees to take such malt, and pay a- 
 specified price therefor on delivery of each par- 
 cel, is not within the statute. Morgan, J., dis- 
 sents, lb. 
 
 59. A contract by a manufacturer to deliver, 
 in such quantities and at such times as they 
 might be called for, at a price certain, a specified 
 number of an article called " warps," which he 
 was manufacturing, but which did not constitute 
 a standard article of trade, where it appeared 
 that the goods were all manufactured after the 
 contract was made and that the contract con- 
 templated goods of his own manufacture ; — 
 
 Held, to be a contract for work and labor, and 
 not for a sale of goods, within the meaning of 
 the statute of frauds. N. Y. C. P., 1871, Passaic 
 Manufacturing Co. v. Hoffman, 3 Daly, 495. 
 
 60. Part payment, to take a parol contract 
 for the sale of personal property for the price of 
 $50 or more out of the statute of frauds, must 
 be made at the time of making the contract, or 
 if made subsequently, it must be then made ex- 
 pressly for the purpose of ooinplying with the 
 statute and making the contract valid, or the 
 parties must at the time substantially restate, 
 reaffirm or renew its terms, so as then and there 
 to make a contract on which the payment is 
 made. Com. App., 1874, Hunter v. Wetsell, 67 
 N. Y. (12 Sick.) 375. 
 
 61. The payment which, under the statute, 
 will render valid a contract for the sale of goods 
 of greater value than $50, must bg a payment of 
 part of the purchase-price of the goods sold by 
 such contract. Ct. App., 1876, Organ v. Stewart, 
 60 N. Y. (15 Sick.) 413 ; Rev'g S. C, 1 Hun, 411. 
 
 62. Payment of the price of goods previously 
 delivered, although made upon the seller's ver- 
 bally agreeing to deliver other goods not included 
 in the first contract but claimed by the seller to 
 be so, does not take the latter agreement out of 
 the statute ; nor will the fact that it is founded 
 on a good consideration, have that effect. lb. 
 
 63. Part performance of a contract for the 
 sale of goods will take it out of the statute of 
 frauds, only when assented to by both parties. 
 Payment to an agent is as effectual for that pur- 
 pose as payment to the principal, if the authority 
 of the agent be established ; and proof of any 
 act of the principal recognizing the agency, or 
 of a subsequent ratification is sufficient for that 
 purpose. Ct. App., 1873, Hawley v. Keeler, 53 
 N. Y. (8 Sick.) 114. 
 
 64. Where by the contract for the sale of a 
 large quantity of cheese, the purchasers were to 
 decide on or before a certain day whether they 
 would purchase, and if they elected to do so, 
 should then deposit a specified sum in a desig- 
 nated bank, to the credit of one of the sellers, 
 the balance of the purchase-money to be paid 
 in 20 and 30 days, and the bank to be security 
 therefor ; — Held, that the deposit of the stipulat- 
 ed sum in such bank within the time specified, 
 with notice to the seller, was a payment of part 
 of the purchase-money at the time of the sale ; 
 and the agreement to give the bank as security 
 was not to be performed until the delivery pf 
 the cheese ; and if the sellers put it out of their 
 power to deliver, by selling to other parties, the 
 buyer could maintain an action on the contract 
 without tendering the security. lb. 
 
 65. Where the parties to a verbal contract of 
 sale, void by the statute of frauds, subsequently 
 meet and enter into further negotiations and 
 agreements respecting such sale, adopting some 
 of the terms of the original agreement, varying 
 others and adding new ones, the contract be- 
 comes thereupon substantially a new one, and a 
 payment made at that time will be a sufficient 
 compliance with the statute of frauds. Ct. App., 
 1871, AUis v.Bead, 45 N. Y. (6 Hand,) 142. 
 
 66. To constitute a payment as earnest or part 
 payment, within the meaning of the statute of 
 frauds, there must be an actual transfer or de- 
 livery of the money or thing agreed to be given 
 as payment, at the time of the contract. Sup. 
 Ct., 1869, Walrath v. Ingles, 64 Barb. 265. 
 
 67. Where, upon a parol contract for the sale 
 of clover seed for a price exeeeding $60, in the 
 aggregate, the seller agreed to take as part pay- 
 ment a barrel of sugar, at a specified price pei 
 
FRAUDS, STATUTE OF. 
 
 363 
 
 ponnd, to be taken away when he deliTered the 
 clover seed the next day, and the barrel was 
 filled in his presence, headed up, marked with 
 his name and laid aside for him, but neither the 
 weight nor the aggregate price ascertained be- 
 fore tlie parties separated ; — Held, that the title 
 of the sugar did not pass, so as to constitute 
 a part payment and take the case out of the 
 statute of frauds. lb. 
 
 68. Delivery. After acceptance of the goods 
 purchased, a delivery by the vendor to a car- 
 rier designated by the purchaser is sufficient to 
 take the sale out of the statute of frauds. Com. 
 App., 1871, Cross v. O'Donnell.H'S. Y. (6 Hand,) 
 661. 
 
 69. A contract for the sale of 50 " warps " at 
 a certain price per pound, is an entire contract, 
 and a delivery of 12 of such warps and payment 
 for the same is sufficient to take the wliole 
 contract out of the statute of frauds. N. Y. C. 
 P., 1871, Passaic Manufacturing Co. v. Hoffman, 
 3 Daly, 495. 
 
 70. Acceptance as well as delivery is neces- 
 sary to render valid a contract for the sale of 
 goods, otherwise void by the statute of frauds 
 for want of payment of purchase-money, or a 
 note or memorandum in writing of the contract, 
 Ct, App., 1872, Stone v. Browning, 44 How. 131 ; 
 S. C, 13 Abb. N. S. 188 ; 51 N. Y. (6 Sick.) 211 ; 
 Eev'g S. C, 49 Barb. 244. 
 
 71. . The delivery must be with the intent to 
 vest the right of possession in the vendee, and 
 the acceptance must be witli intent to take pos- 
 session as owner. A delivery and receipt for 
 the purpose of comparing with sample, the riglit 
 of refusal in case it did not, being reserved, is 
 not sufficient to take the case out of the statute. 
 lb. 
 
 72. No act of the vendor alone, in performance 
 of a verbal contract of sale which is void by the 
 statute of frauds, can give to it validity. Conse- 
 quently, a delivery pursuant to such contract 
 will not pass the title, or make the vendee liable 
 for the purchase-money, without proof both of a 
 receipt and acceptance by him. Ct. App., 1872, 
 Caulkins v. HiLlman, 47 N. Y. (2 Sick.) 449. 
 
 73. Where a vendor of a lot of brick by verbal 
 contract, at the time of sending a cargo and be- 
 fore delivery of any, caused a written notice ad- 
 dressed to the vendee to be delivered to the per- 
 son who was directing as to the place of dis- 
 charge, to the effect that, unless such cargo was 
 discliarged by a day named, the agreement 
 would be c'onsidered broken, and he would not 
 send another cargo ; but such notice was not 
 received by the vendee until after a partial de- 
 livery ; Held, that the part delivery validated 
 the contract, and as the notice was not received 
 until afterward, a non-compliance with its terms 
 was no defense to an action for a refusal to de- 
 Uver the balance. Com. App., 1873, Harteau v. 
 Gardner, 51 N. Y. (6 Sick.) 678. 
 
 74. Where part of a quantity of railroad ties, 
 contracted for verbally, were placed upon the 
 land of the vendee, whose agent for the purchase 
 and inspection of ties moved a portion of them 
 for the purpose of opening a road, — Held, that 
 his act did not constitute such an acceptance as 
 would take the case out of the statute of frauds. 
 Ct. App., 1873, Wade v. New York ^ 0. M. R. 
 R Co., 52 B. Y. (7 Sick.) 627. 
 
 75. Tlie taking of a small part of such ties by 
 servants of the vendee, not authorized to pur- 
 chase or accept ties, and their use upon the road, 
 although it may bind the vendee to pay for the 
 ties taken, does not bind it upon tlie contract. lb. 
 
 76. A parol contract for the sale of a large 
 
 quantity of apples, to be delivered immediately, 
 and one for tlie sale of a large quantity of bar- 
 ley, to be delivered as soon as a car can be pro- 
 cured for shipping it, eacli to be paid for on de- 
 livery, are separate contracts, althougli made at 
 the same time ; and the subsequent delivery of 
 the apples to the purcliaser on the contract,- and 
 his acceptance and payment therefor do not 
 take the contract for the barley out of the stat- 
 ute of frauds. Sup. Ct., 1872, Aldrich v. Pyatt, 
 64 Barb. 891. 
 
 77. To take a sale of personal property out of 
 tlie statute in the absence of a writing and with- 
 out part payment, the acts of tlie parties must 
 be such as unequivocally to place the property 
 within the power and under the exclusive do- 
 minion of the buyer. Com. App., 1871, Marsh 
 V. Rouse, 44 N. Y. (5 Hand,) 643. 
 
 78. Wliere the vendor of goods, having con- 
 tracted for their purchase with a tliird party, no 
 delivery nor payment having been made, in- 
 formed sucli third party that his purchaser would 
 direct as to the shipment, which the latter did 
 in the presence of all three parties ; but such . 
 third party never followed the instructions so 
 far as to lose his lien for the purchase-price, — 
 Held, no delivery sufficient to take the case out 
 of the statute. lb. 
 
 79. A written contract for the sale of goods 
 cannot be enlarged by a subsequent parol agree- 
 ment for the purchase of an additional quantity, 
 nor will a delivery of a portion of the goods, 
 prior to such parol modification, have the effect 
 to take the latter agreement out of the statute 
 of frauds, as a part delivery. Com. App., 1874, 
 Schultz V. Bradley, 57 N. Y. (12 Sick.) 646; 
 Rev'g S. C, 4 Daly, 29. 
 
 80. Possession, change of. That an ade- 
 quate consideration was paid by the vendee, 
 upon a sale of goods unaccompanied by imme- 
 diate delivery or an actual or continued change 
 of possession, is not decisive upon the question 
 of the bona fides of the sale. Ct. App., 1874, May 
 V. Walter, 56 N. Y. (11 Sick.) 18. 
 
 81. In an action by a vendee to recover the 
 goods sold, where the evidence tended to prove 
 a merely colorable and not an actual change of 
 possession, that the vendor was at the time in- 
 solvent and being pressed by his creditors, that 
 the sale was not in the usual course of business, 
 but was of an entire stock made at the solicita- 
 tion of a relative of the vendor to a person 
 engaged in otiier business and not acquainted 
 with that purchased, apparently without pre- 
 vious negotiation or means taken to ascertain 
 the value, whicli was scarcely half the alleged 
 consideration, — Held, that the question of bona 
 fides sliould have been submitted to the jury, 
 and that a direction to them to find for tlie 
 plaintiff was error. lb. 
 
 82. The statute relative to fraudulent con- 
 veyance is imperative, that the sale must be 
 followed by continued change of possession to 
 avoid tlie presumption of fraud. If, without an 
 intermediate change of title, the chattels come 
 again to the possession of the vendor with the 
 knowledge and assent of the vendee, though 
 after a very long time, the presumption of fraud 
 arises, and it devolves upon the vendee to show 
 bona fides. The length of time before such 
 change or i;e-delivery of possession is immaterial 
 save as a circumstance to be considered by the 
 jury upon the question of a fraudulent intent. 
 Ct. App., 1874, Tilson v. Termlliger, 56 N. Y. 
 (11 Sick.) 273. 
 
 83. In case of a sale of personal property not 
 accompanied by change or delivery of posses- 
 
364 
 
 FREIGHTS— FUGITIVES FIIOM JUSTICE. 
 
 eion, it is not necessary for the vendee, in order 
 to establish an absence of fraudulent intent, to 
 show, in addition to proof that the sale was bona 
 fide, that there was a valid reason or excuse for 
 leaving the goods in the possession of the Ten- 
 dor. Ct. App., 1873, Mitchell v. West, 65 N. Y. 
 (10 Sick.) 107. 
 
 84. After personal property sold has been de- 
 livered to the purchaser, its- possession by the 
 vendor for a mere temporary purpose, and under 
 circumstances which show that it was not re- 
 turned to him with a view to enable him to use 
 it as his own, does not, under the statute relative 
 to fraudulent sales of goods, etc. (2 Edm. Stats. 
 141, sees. 5, 6), raise a presumption that the sale 
 was made witli intent to defraud creditors. Sup. 
 Ct, 1863, Knight v. Forward, 63 Barb. 311. 
 
 85. Thus, where a father bought a cutter from 
 his son, and received the immediate possession 
 thereof, but occasionally afterward allowed the 
 son to use it, and after use it was again return- 
 ed to his possession, — Held, that there was a 
 continued change of possession, within the mean- 
 ing of the statute, and no presumption of fraud 
 against the sale. lb. 
 
 86. A joint possession and control of goods by 
 the vendor and vendee after the sale, does not 
 amount to an actual and continued change of 
 possession within the meaning of the sT;atute of 
 frauds. N. Y. Supr. Ct., 1873, Jones v. O'Brien, 
 86 N. Y. Supr. (4 J. & Sp.) 58. 
 
 87. The memorandum of sale required by 
 the statute of frauds, need not be comprised in 
 one paper. It may be embraced in several, but 
 the mutual relation of the writings must appear 
 upon their face, and cannot be established by 
 parol. N. Y. C. P., 1871, Passaic Manufacturing 
 Co. V. Eoffman. 3 Daly, 495. 
 
 88. It seems, that a letter containing an offer 
 for certain goods, taken in connection with parol 
 evidence, unobjected to, of the writing and post 
 ing of an answer of acceptance, would be suffi- 
 cient to take the sale out of the statute. lb. 
 
 89. A writing signed by the proper party to 
 be charged, and addressed to a stranger, though 
 it did not at the time come to the knowledge of 
 the other party to the contract, may be deemed 
 a part of the sufficient memorandum required 
 by the statute. Ct. App., 1874, Peabody v. 
 Speyers, 50 N. Y. (11 Sick.) 230. 
 
 90. Although such writing shows the party 
 sought to be charged to have been an agent 
 simply and not the principal in the transaction, 
 that does not afiect the rights of the other party 
 as against him, in the absence of actual notice 
 to the former agency. lb. 
 
 91. Where two persons, both members of the 
 New York Gold Exchange, the constitution and 
 by-laws of which required all contracts to be 
 performed the next day by a specified hour, and 
 made the Gold Exchange Bank, in the absence 
 of express agreement, the agent of both parties 
 for the consummation of the same, entered into 
 a verbal contract for the sale of $40,000 of gold 
 for $57,500 currency, and before the specified 
 hour on the following day, exchanged writings, 
 both addressed to said bank and signed by the 
 parties respectively, one stating that the signer 
 would settle with the other $57,500 currency for 
 $40,000 of gold and marked in the margin " re- 
 ceive gold," and the other similar in form except 
 that the words " currency " and gold and the 
 amounts were transposed and upon the margin 
 were the words " deliver gold,"^fleW, that the 
 writings should be construed together and also 
 in the light of the constitution and by-laws ; and 
 that so construed they constituted a sufficient 
 
 memorandum to meet th3 requirements of the 
 statute. lb. 
 
 92. Where a broker is acting for both parties 
 to a contract with their knowledge, and without 
 fraud or concealment, the bought and sold notes, 
 signed by the broker, are a sufficient memoran- 
 dum to satisfy the statute of frauds. N. Y. Supr. 
 Ct., 1874, Spyer v. Fisher, 37 N. Y. Supr. (5 J. 
 & Sp.) 93. 
 
 93. A bought note, signed by a broker in the 
 name of a customer who had orally agreed to 
 take the goods, — ^fie/d, a sufficient memorandum 
 of the sale to take it out of the statute, where, 
 by means of it, the broker obtained a warehouse 
 order for the goods which was delivered to and 
 accepted by the customer. Ct. App., 1871, Haw- 
 kins V. Baker, 46 N. Y. (1 Sick.) 666. 
 
 94. A deed, fully i executed and left with a 
 third party to be delivered to the purchaser 
 upon his paying the purchase-money of the prem- 
 ises, is not a sufficient memorandum to take a 
 parol contract for the sale of lands out of the 
 statute of frauds, and enable the vendor to 
 maintain an action for the purchase-price. Ct. 
 App., 1871, Cagger V. Lansing, 43 ST. Y. (4 Hand,) 
 650 ; Bev'g S. C; 57 Barb. 421. 
 
 FREIGHTS. 
 See Cabbiebs ; ships and beauen. 
 
 FEIVOLOUS PLEADING. 
 See FLEADma. 
 
 FUGITIVES FEOM JUSTICE. 
 ■ 
 
 1. Rendition. The question of the guilt or 
 innocence of a person charged with being a 
 fugitive from justice, is wholly irrelevant in de- 
 termining the action of the executive of the 
 State upon which the demand for his surrender 
 is made ; but it is essential that there should be 
 a charge of crime existing against him in the 
 State making such demand ; in other words, 
 it must be made to appear that he is charged in 
 the latter State with a violation there of its 
 criminal law. Ct. App., 1874, People ex reh Law- 
 rence V. Brady, 56 N. Y. (11 Sick.) 182. 
 
 2. Where the demand is supported by a simple 
 affidavit setting forth the offense, no less a de- 
 gree of certainty is admissible than is required 
 in an indictment for the same offense ; and if 
 any distinction exists in this respect, the affida- 
 vit should be the more full and specific. lb. 
 
 3. An affidavit accompanying a requisition 
 from the governor of another State upon the 
 executive of this, which charges the fugitive 
 with confederating with others to obtain the 
 property of a third person by false pretences, 
 and with having obtained such property by 
 such pretences, with intent to cheat and defraud, 
 but does not state the false pretences used 
 or the means by which the cheat was to have 
 been or was accomplished, is not sufficient to 
 justify an executive warrant. lb. 
 
 4. Our courts will not take judicial notice of 
 the laws of another State, and in the absence of 
 proof, it will be presumed that the courts of 
 such other State agree with our own in their 
 interpretation of the common law. lb. 
 
GAME— GIFT. 
 
 365 
 
 5. The fact that an inferior magistrate in the 
 State from which the requisition comes had 
 issued a warrant upon the same proofs presented 
 to the executive of this State, does not justify 
 the inference tliat a legal crime is charged In 
 the affldavits. lb. 
 
 GAME. 
 
 Acts for preservation of chs. 721, 831, Laws of 
 1871 ; chs. 65, 483, Laws of 1872 ; chs. 435, 436, 
 479, Laws of 1873 ; chs. 390, 409, 511, Laws of 
 1874. 
 
 GAS COMPANY. 
 
 1. Right to shut on gas. The right of a 
 gas company, under sec. 9, ch. 311, Laws of 
 1859 (3 Edm. Stats. 857), to shut ofE gas from 
 the premises of a person who is in arrear, de- 
 pends wholly upon the fact that he is in arrear, 
 and thSt is a question to be determined by 
 evidence, and not by the will of the gas com- 
 pany. The right does not extend to arrears 
 created by former occupants. N. Y. Supr. Ct., 
 1874, Marey v. Metropolitan Gas L. Co., 38 N. Y, 
 Supr. (6 J. & Sp.) 185. 
 
 2. Upon the refusal of a person supplied with 
 gas to pay his gas bill and to increase his de- 
 posit to a reasonable amount in proportiort to 
 the gas used, the gas company is justified, in 
 cutting off his gas. Sup. Ct., 1875, Ford v. 
 Brooklyn Gas Light Co., 3 Hun, 621. 
 
 GENERAL DENIAL. 
 See Pleading. 
 
 GIET. 
 
 1. Inter vivos. A husband may make a 
 valid gift to his wife, the claims of creditors 
 not intervening. Sup. Ct., 1874, Mack v. Mack, 
 8 Hun, 323. 
 
 2. Such a gift may be made of a judgment 
 and mortgages, by delivery of the securities 
 to the donee, without written assignment. lb. 
 
 3. Of debt There may be a valid gift of a 
 debt due the donor from the donee ; and where, 
 to consummate such a gift, the donoi' accepted 
 $1 from the donee and entered it upon his books 
 with the addition of " Gift to balance account," 
 and delivered to the latter a receipt in full, — 
 Beld, that there was a valid gift of the account, 
 and the donor could not afterward maintain an 
 action for the balance. Ct. App., 1873, Gray v. 
 Barton, 55 N. Y. (10 Sick.) 68. 
 
 4. Receipted contract. Where a party who 
 had executed and delivered a contract for the 
 sale of land at a price specified", afterward in- 
 dorsed thereon a receipt in full, although nothing 
 had been paid ; — Beld, that the indorsement and 
 delivery of such receipt constituted a valid gift 
 of the debt, and the donee poiild maintain an 
 action for the specific performance of the con- 
 tract against the devisees of the donor. Sup. 
 Ct., 1875, Fen-y v. Stephens, 5 Hun, 109. 
 
 5. Delivery of the thing which is the subject 
 of the gift is essential to render a gift effectual, 
 
 and if it is not susceptible of delivery, there can 
 be no gift. Sup. Ct., 1871, Doty v. Wilson, 5 
 Lans. 7. See S. C, 47 N. Y. (2 Sick.) 580. 
 
 6. Although a debt cannot be transformed 
 into a gift by a mere parol declaration subse- 
 quently made, yet where the delivery of money 
 by a father to his son is under circumstances 
 rendering it uncertain as to whether it was 
 intended as a loan or gift, and not inconsistent 
 with either, then a distinct declaration to the 
 donee, made afterward, that it was intended as 
 a gift, may have the effect not of changing it, 
 but of determining what it was. Ct. App., 1872, 
 S. C, 47 N. Y. (2 Sick.) 580. 
 
 7. No form of words is necessary to consti- 
 tute a valid gift, but if the circumstances clearly 
 evince the intention, that is sufficient. lb. 
 
 8. It is a general rule that the donor must part 
 with all interest and control over the property 
 given, yet a promise by the donee to pay a sum, 
 of money or do some act, not amounting to a 
 condition of delivery or title, cannot invalidate 
 the gift. lb. I 
 
 9. Delivery and acceptance are essential to 
 the validity of a parol gift of personal property. 
 The donor must part not only with the posses- 
 sion, but with the dominion of the property. A 
 mere intention or a naked promise to give, with- 
 out delivery will not pass the title. Sup. Ct., 
 1872, Brink v. Gould, 43 How. 289 ; 7 Lans. 425. 
 
 10. It is not essential to the validity of a gift 
 that it be delivered directly to the donee, but a 
 delivery to another person for him is sufficient. 
 Sup. Ct., 1872, Whiting v. Barrett, 7 Lans. 106. 
 And the donor may even convert himself^into a 
 trustee for the donee by an apt declaration to 
 that effect. Sup. Ct., 1875, Taylor v. Kelly, 5 
 Hun, 115. 
 
 11. The donee of property, under a- verbal 
 gift from the owner, acquires a perfect title if 
 he gets possession of it before revocation by the 
 donor, although it was not present when the gift 
 was made, or was not even in esse at the time 
 Sup. Ct, 1872, Whiting v. Barrett, 7 Lans. 106. 
 
 12. Until the donee obtains possession, the 
 consent of the donor must be presumed, unless 
 revoked. lb. 
 
 13. A revocation need not be^n words, but 
 any acts of the donor inconsistent with the right 
 of the donee to control the property before he 
 takes it into possession, would probably operate 
 as a revocation. lb. 
 
 14. A recognition by the donor of the donee's 
 ownership, after the latter has obtained pos- 
 session, will render the gift a perfect one and 
 transfer the title, even if there be any doubt as 
 to the sufficiency of delivery. lb. 
 
 15. A gift by husband to wife of property 
 which is exempt from execution is valid as 
 against creditors. lb. 
 
 16. Conditional. The delivery by one about 
 entering the army to his brother of a promissory 
 note, with directions to give the same to his 
 mother in case he does not return, does not con- 
 stitute a valid gift to the mother. Sup. Ct., 1875, 
 Sheldon v. Button, 5 Hun, 110. 
 
 17. Of bond and mortgage. A gift of a 
 bond and mortgage, whether inter vivos or causa 
 mortis, by mere delivery, without writing, con- 
 veys the legal as well as the equitable title to 
 the donee. Sup. Ct., 1862, Hackney v. Vrooman, 
 62 Barb. 650. 
 
 18. Causa mortis. Delivery of a negotiable 
 security by the holder to another person, with 
 intent to give the same mortis causa, vests the 
 title in the donee, subject only to be drawn in 
 question by the personal representatives of the 
 
366 
 
 GOOD WILL— GUARANTY. 
 
 donor in behalf of creditors, as a fraud upon 
 them. Sup. Ct., 1871, House t. Chant, 4 Lans. 
 296. 
 
 19. In an action by the donee upon a promis- 
 sory note so transferred, the maker cannot in- 
 terpose the claims of creditors as a defense, not 
 being himself a creditor. lb. 
 
 20. Until claims are duly established accord- 
 ing to law, no one will be in a position to con- 
 test the rights of the donee. lb. 
 
 21. To constitute a valid gift nuyrtis causa, it 
 is necessary, 1. That it be made with a view to 
 the donor's death, and this may be found from 
 the attending circumstances, though the written 
 transfer and the delivery may be absolute. 2. 
 That the donor must die of that ailment or peril. 
 3. Tliat it be delivered either to the donee or to 
 some one for him. Ct. App., 1872, Grymes v. 
 Eom, 49 N. Y. (4 Sick.) 17. 
 
 22. Where the alleged donor, being the owner 
 of 120 shares of bank stock included in one cer- 
 tificate and transferable upon tlie books of the 
 bank, executed an absolute assignment in writ- 
 ing of 20 sliares to his granddaugliter, delivering 
 it to his wife to be given the donee upon his 
 death, he being at the time about 80 years of 
 age and in failing health, which continued until 
 his death some five months tliereafter, — Held, a 
 valid gift causa mwtis ; that the equitable title 
 to the stock passed by the assignment without 
 delivery of the certificate ; and that a court of 
 equity would compel the donor's representatives 
 to produce the certificate, that the legal title to 
 the stock might be perfected. lb. 
 
 23. Wliere a wife, having no money or other 
 property except two notes, the largest of which 
 was held by a tliird party, with her consent, as 
 collateral security for her husband's debt, and 
 the smaller one in a bureau drawer in the hus- 
 band's dwelling house, Baid to her husband a 
 day or two before her death, " you may have 
 the money," or " all the money," — Held, that, it 
 being clearly her intention to give liim some- 
 thing, and as slie had no money or other prpp- 
 erty, she must have intended to give him the 
 notes. Sup. Ct., 1874, Stevens v. Stevens, 2 Hun, 
 470. 
 
 24. The gift was valid as to the smaller note, 
 that being presumptively within the husband's 
 control, but was invalid as to the larger note for 
 want of delivery. lb. 
 
 25. That a gift inter vivos of a chose in action 
 being intended to take effect immediately, can- 
 not be made by delivery only, but that an as- 
 signment, or some other act of transfer sufiicient 
 to pass the legal title is necessary ; but that a 
 gift causa mortis, being made under peciiliar cir- 
 cumstances and not intended to take effect ex- 
 cept in case of the death of the donor, may be 
 made by delivery only, argued ; and the con- 
 flicting authorities examined. Sup. Ct., 1875, 
 Johnson v. Spies, 5 Hun, 468. 
 
 GOOD WH-L. 
 
 1. Protection of. The good will of a busi- 
 ness firm is a valuable part of its assets upon its 
 dissolution, and an attempted appropriation of 
 it by one of tlie former partners to the exclu- 
 sion of the others, by the use of the firm name, 
 or a close imitation thereof, will be restrained 
 by injunction. Sup. Ct., Sp. T., 1870, Bininger 
 v. Clark, 10 Abb. N. S. 264 ; S. C, 60 Barb. 118. 
 
 GRACE, DAYS OF. 
 See Bills and notes. 
 
 GRAND JURY. 
 
 See Ceiminal law ; also ch. 586, laws op 
 1873. 
 
 GUARANTY. 
 
 1. In general. Guaranties are governed by 
 the same rules of construction as other con- 
 tracts, and that is, that the intent of the parties 
 must be ascertained and carried into effect, and 
 in arriving at that intent, the language of the 
 contract must be construed according to its 
 plain and obvious import. Sup. Ct., 1872, Crist 
 V. Burlingame, G2 Barb. 351. 
 
 2. In case of ambiguity, the language is to be 
 construed most strongly against the guarantor, 
 lb. • 
 
 3. In order to arrive at the intention of the 
 parties, the circumstances under which, and the 
 purposes for which the contract was made may 
 be proved, and mast be kept in view in its con- 
 struction, lb. 
 
 4. Of payment and collection. An in- 
 dorsement upon a promissory note in the fol- 
 lowing words : " JFor value received I guarantee 
 the payment and collection of the within note, ' 
 with costs, if any made," is a guaranty of both 
 payment and collection, and not of collection 
 only. Sup. Ct., Sp. T., 1873, Tuton v. Thayer, 47 
 How. 180. 
 
 5. The holder may, at his election, proceed 
 first against either the maker or the guarantor, 
 and if he sues the maker and fails to collect, the 
 guarantor is liable to him for both the debt and 
 the costs of the former action. lb. 
 
 6. Of payment of interest. A guaranty, 
 made on the"^ transfer of a bond and mortgage, 
 due in three years with interest payable semi- 
 annually, of the payment of the interest thereon 
 by tlie mortgagee " within 10 days after the 
 days the same shall become due and payable," 
 does not bind the guarantor to the payment of 
 any interest after the maturity of the bond. 
 Com. App., 1871, M^ick v. Knox, 44 N. Y. (5 
 Hand,) 676. 
 
 7. The fact that the bond and mortgage were 
 assigned in part payment of the purchase-price 
 of lands, does not make the debt that of the 
 guarantor, or affect his liability on the guar- 
 anty, lb. 
 
 8. — of mortgage. Where a vendor of one 
 acre and 158 rods of land, executed to the pur- 
 chaser a written agreement to pay, when due, a 
 mortgage thereon held by B of $150 per acre, 
 and S bj a writing indorsed on such agreement, 
 guaranteed that B would pay and discharge 
 " the within specified mortgage ; " — Held, that, 
 in the absence of proof that S knew the mort- 
 gage to be for a, larger amount, he was liable on 
 his gua,ranty only to the extent of $150 per acre 
 on the land so purchased. Ct. App., 1875, Skin- 
 ner V. Valentine, 59 N. Y. (14 Sick.) 473. , 
 
 9. — of rent. Where a lessor, in the lease 
 executed by himself and the lessee alone, agreed 
 to notify the sureties of the latter of any default 
 in payment of rent, wlien they were to have the 
 right to take possession of the premises on pay- 
 ing the rent themselves, but, in the contract 
 
GUARDIAN AD LITEM— GUARDIAN AND WARD. 367 
 
 executed by the sureties and annexed to the 
 lease, they agreed to pay the rent without such 
 notice or proof of demand made, — Held, that 
 there was no repugnancy between tlie two 
 clauses; that the object of giving notice was that 
 they might take possession ; and that notice was 
 not a condition precedent to their liability, but 
 they were bound to pay the rent in any event. 
 CHnKCH and Peckham, JJ., dissent. Ct. App., 
 1871, Barhydt v. EUis, 45 N. Y. (6 Hand,) 107. 
 
 10. Whether, in case the sureties should 
 show that by the laches of the lessor in not 
 giving notice they had lost the use of the prem- 
 ises and been thereby damaged, recovery could 
 be had therefor, and if so, to what extent, not 
 decided. lb. 
 
 11. Notice is not, in general, necessary to 
 charge a guarantor, and, even where he is en- 
 titled to it by written agreement, he is discharged 
 by lack of it only to the extent to which he is 
 injured by the laches of the creditor. lb. 
 
 12. Wliere a lessee of premises, under restric- 
 tion against sub-letting for purposes of storage, 
 leased them to a third party for a term of five 
 years, who thereupon entered into an agreement 
 with the ot»ner to pay a certain sum per annum 
 during that period, for the privilege of using the 
 premises for storage, and such lessee guaranteed 
 the performance of the contract ; — Held, that 
 the contract and guaranty were binding for the 
 full term of five years, and not merely for the 
 period during which the sub-lessee might avail 
 himself of the privilege ; and ttie surrender of 
 hi« lease, without the consent of such owner, 
 did not relieve the guarantor. Ct. App., 1873, 
 Doscher v. Shaw, 62 N. Y. (7 Sick.) 602. 
 
 13. Continuing. When, by the terms of the 
 guaranty, it is evident the. object is to give a 
 standing credit to the principal, to be used from 
 time to time, either indefinitely or until a cer- 
 tain period, then the liability is continuing ; but 
 wlien no time is fixed, and nothing in the instru- 
 ment indicates a continuance of the undertaking, 
 the presumption is in favor of a limited liability 
 as to time, whether the amount is limited or 
 not. Sup. Ct., 1862, Crist v. Burlingame, 62 
 Barb. 351. 
 
 14. Where A B, upon commencing the com- 
 mission business, in order to induce C to accept 
 his drafts from time to time for advances to 
 parties consigning property to him, to be reim- 
 bursed upon the sale of such property, agreed 
 to consign the property to C for sale, and to 
 secure C, procured R B to send him a letter as 
 follows : "I will be and am responsible for any 
 amount whicli A B may draw on you, for any 
 sum not to exceed $1,500, on condition of your 
 acceptance of the same ; " — Held, that this was 
 a continuing guaranty, and was not satisfied by 
 the payment of acceptances to the extent of 
 $1,500. lb. 
 
 15. A letter as follows : "Messrs. A. & Co., 
 New York, Gents, — Tlie bearer, Mr. S. W., is 
 going to start a peddling route to sell cigars 
 and tobacco. He wishes to buy his goods of 
 your firm ; if you will give him a liberal credit, 
 we, the undersigned, will be his security to the 
 amount jf $1,000. T. S. B. P. J. M."—Held 
 to be a continuing guaranty, rendering the sign- 
 ers liable to the amount specified for all goods 
 bought by S W of A & Co. until notice given 
 to terminate it. Sup. Ct. Cir., 1872, Sickle v. 
 Marsh, 44 How. 91. 
 
 16. Personal. A guaranty of tlie payment 
 of a bond and mortgage " to A C, the present 
 owner and holder of said bond and mortgage, 
 his executors and administrators," is personal to 
 
 A C, his executors and administrators, and 
 cannot be enforced by an assignee of the bond 
 and mortgage. Sup. Ct., 1875, i^mith v. Starr, 
 4 Hun, 123. 
 
 17. By parol. A parol guaranty of the pay- 
 ment or collection of a note or bill, given on its 
 transfer in payment for property purchased or 
 debt due by the guarantor, is not within the 
 statute of frauds, but may be enforced. Sup. 
 Ct., 1872, Lossee v. Williams, 6 Lans. 228. 
 
 18. An agent authorized to sell a note, and 
 not limited by instructions, can bind his princi- 
 pal by a guaranty that it is good or collectible. lb. 
 
 19. Expression of consideration. Where, 
 in carrying out an arrangement for the settle- 
 ment of a debt, evidenced by a joint note, one 
 of the makers was to give a new note and the 
 other was to guaranty it ; — Held, that a guaranty 
 indorsed by the latter on such new note, with- 
 out any expression of consideration, being one 
 of his own debt and not of the debt of another, 
 was valid and binding on him. Sup. Ct., 1863, 
 Ellenwood v. Fults, 63 Barb. 321. 
 
 20. A guaranty, written on a promissory note, 
 as follows : " I hereby guarantee that the above 
 note is not outlawed, according to the laws of 
 the State. (Signed.) J. H.," is invalid, for want 
 of an expression of consideration. Sup. Ct., 
 1874, Clark v. Hampton, 1 Hun, 612. 
 
 21. Who may enforce. A guaranty must 
 necessarily go with the principal obligation, and 
 be enforceable by the same persons who can en- 
 force that. Accordingly, — Held, in case of the 
 guaranty of the agreement by one partner, on 
 purchasing the interest of his co-partner, to pay 
 the firm debts, tliat an action would lie thereon 
 by a creditor of the firm in his own name, 
 directly against the guarantor. Com. App., 
 1874, Claflin V. Ostrom, 54 N. Y. (19 Sick.) 581. 
 
 22. Release of guarantor. After a breach 
 of the engagement of liis principal which will 
 justify a termination of tlie contract, a guaran- 
 tor has a right to require that the contract be 
 terminated and the claim against him be con- 
 fined to the damages then recoverable. Ct. App., 
 1871, Mattoon v. Young, 45 N. Y. (6 Hand,) 691. 
 
 23. Where the guarantor of a building con- 
 tract, which was to be completed on the 15th of 
 October, gave notice after that date to the ob- 
 ligees, the contract not being completed because 
 of his principal's default in furnishing materials, 
 that, unless they completed by Nov. 1st he 
 would not be responsible thereafter, and they 
 continued work until the June following; — Held, 
 that the damages were limited to the amount 
 recoverable Nov. 1st, notwithstanding the guar- 
 antor after that date urged the completion of 
 the work, at the same time asserting that he 
 would not be responsible. lb. 
 
 GUARDIAN AD LITEM. 
 See Practice. 
 
 GUARDIAN AND WARD. 
 
 1. Appointment. The sole executor of a 
 deceased father is not a proper person to be ap- 
 pointed general guardian of his orphan child, 
 since," as executor, lie would have to account 
 only to himself as guardian, and that might 
 lead to a gross wrong. Sup. Ct., Sp. T., 1873, 
 Richard's Case, 15 Abb. N. S. 6. 
 
368 
 
 GUARDIAN AND WARD. 
 
 As to testamentary guardians, see Ch. 32, Laws 
 of 1871. 
 
 As to appointment of guardians by surrogate, see 
 Ch. 708, Laws of 1871. 
 
 2. Removal. A stranger to the family 
 ought not to be appointed the general guar- 
 dian of an infant orphan, without notice to the 
 relatives of such infant residing in the county ; 
 but if such an appointment be made by the 
 county judge, and it appears that such relatives 
 would have opposed it, had notice been served 
 on them, the Supreme Court will, on their ap- 
 plication, remove such guardian and appoint a 
 new one. Sup. Ct., Sp. T., 1873, Richard's Case, 
 16 Abb. N. S. 6. 
 
 3. PoTwers. A special guardian of an infant, 
 who is also his general guardian, has power, 
 without any order of court for that purpose, to 
 sell and assign a bond and mortgage, given to 
 him to secure the payment of the purchase- 
 money for real estate of his ward sold by him 
 under an order of tlie County Court. Sup. Ct., 
 1871, Tuttle V. Heavy, 69 Barb. 334. 
 
 4. A guardian in socage has power to make a 
 lease of the lands of his ward in his own name, 
 and bind the ward thereby ; and a general guar- 
 dian has the same power. Sup. Ct., 1862, Thach- 
 er V. Henderson, 63 Barb. 271. 
 
 6. Sucli a lease is assignable ; and the assignee 
 thereof, if also the owner of the reversion, can 
 maintain an action for the breach of any of the 
 covenants therein which may be assigned, in- 
 cluding the lessee's covenants to work the prem- 
 ises in good farmer-like manner, to keep them 
 in good condition, to seed down part, and the 
 like. Morgan, J., dissents. lb. 
 
 6. Although tlie guardian cannot bind his ward 
 or the estate by a contract of sale, yet, if the 
 lease does not cover the whole period of the 
 ward's minority, there is a reversionary interest 
 in the guardian, which he may assign, and 
 which will pass by a contract of sale executed 
 by him and approved by the court. lb. 
 
 7. The statutory guardian of an infant has no 
 right to commit waste by cutting and removing 
 timber from the land of the ward ; and the as- 
 sent of the guardian to such cutting and remov- 
 al by another will be no defense to an action of 
 trespass brought against him therefor. Ct. App., 
 1874, Torry v. Black, 58 N. Y. (18 Sick.) 185; 
 Eev'g S. C., 65 Barb. 414. 
 
 8. But such guardian has the right to receive 
 the proceeds of any timber so cut for the benefit 
 of the infant ; and in an action for such tres- 
 pass, the application of such proceeds, with the 
 assent of tlie guardian, to the payment of taxes 
 upon or debts against the ward's estate, may be 
 shown in mitigation of damages. . lb. 
 
 9. A guardian appointed by • the surrogate, 
 upon application of an infant over 14 years 
 of age, has the right to sue for such a trespass, 
 and consequently has power, in good faith and 
 for a valuable consideration, to release and dis- 
 charge a claim therefor. lb. 
 
 10. Purchase of dower interest. The 
 guardian of an orphan ought not of his own mo- 
 tion, or even after consultation with the county 
 judge, to purchase an outstanding dower inter- 
 est in the lands of his ward, or remove a cloud 
 upon the title of such land, though for the bene- 
 fit of the ward, without first making a proper 
 application to the court and obtaining an order 
 therefor. Sup. Ct., Sp. T., 1873, Richard's Case, 
 16 Abb. N. S. 6. 
 
 11. Saleof infant's land. A contract by a 
 special guardian, approved by the court which 
 
 appointed him, to sell his ward's interest in land 
 for a specified sum, to be paid as follows : 1««. 
 The purchaser to pay the value of her dower 
 right to the ward's mother ; 2d. To procure a 
 discharge and release of the infant and the es- 
 tate of her father from a bond given for money 
 loaned the latter to purchase such land, and 
 which was to have been secured by mortgage 
 thereon. Zd. To pay or secure to be paid the 
 residue for the benefit of the infant ; if such dis- 
 charge is not obtained, then to secure the resi- 
 due, after deducting the sum payable to said 
 widow, by a mortgage on the land, does not 
 cast upon the purchaser the liability to procure 
 the release, in addition to paying the sum speci- 
 fied, but the sumpaid therefor is to be deducted. 
 Ct. App., 1874, Hunt v. Hunt, 68 N. Y. (13 Sick.) 
 666 ; Eev'g S. C, 6frBarb. 577. 
 
 12. A failure of the guardian to report the 
 disposition of the purchase-money, after making 
 tlie proper deductions, is a breach of the guar- 
 dian's bond. lb. 
 
 13. The guardian, in such a case, has no right 
 to apply tlie proceeds of the sale, as administra- 
 tor of the estate of the father, to the benefit of 
 that estate, although it is insolvent. Jb. 
 
 As to what lands may be sold. See Ch. 211, 
 Laws of ISIS. 
 
 14. Accounting. Upon an accounting by a 
 guardian, as in case of an executor, no items of 
 payments exceeding $20 in amount should be 
 allowed, unless proper vouchers are produced. 
 Sup. Ct., 1874, Gill, In matter of, 3 Hun, 20. 
 
 16. An examination of the guardian's accounts 
 by the ward, after coming of age, andr an ad- 
 mission by her of their correctness, and expres- 
 sion of her intention to call and give him a re- 
 ceipt, followed bjy an attempt to find him for 
 that purpose, — Held, not sufficient to preclude 
 her administrator from challenging the account, 
 lb. 
 
 As to accounting b^ore Surrogate. See Ch. 482, 
 LawsoflSh. 
 
 16. A general guardian of a minor who year 
 after year leases his ward's property in an 
 unusual manner, as by auction in the month of 
 January, when there is but little demand for it, 
 at a rent much less than the rental value of the 
 property, is properly chargeable on account- 
 ing before the surrogate with the difference 
 between the rental value and the amount of rent 
 actually received, and also with the contestant's 
 costs on the accounting. Sup. Ct., 1874, Knothe 
 V. Kaiser, 2 Hun, 516. 
 
 17. A special guardian, appointed in proceed- 
 ings for the sale of an infant's real estate, can- 
 not consistently, when called to account for the 
 proceeds of such sale, be considered an opposing 
 party, within the meaning of sec. 31 of the 
 Code declaring the county court always open for 
 business, where no notice to an opposing party is 
 required ; but he may be cited to account by 
 that court at a day not in a stated term. Eet- 
 NOLDS, C, dissents. Com. App., 1874, Brown v. 
 Snell, 57 N. Y. (12 Sick.) 286. 
 
 18. Even if he could be considered an oppos- 
 ing party, he may waive the limitation for his 
 benefit, or be estopped from insisting upon it ; 
 and if he appears when so cited, and consents to 
 a decree against him for a specified amount, 
 such decree is valid and binding, and in default 
 of payment an action can be maintained on his 
 bond. lb. 
 
GUEST— HABEAS CORPUS. 
 
 369 
 
 19- Even though the decree be considered 
 void, such accounting would be equivalent to a 
 settlement between the parties, and an action on 
 the bond could be sustained for the agreed 
 amount. lb. 
 
 20. The compensation to he allowed to 
 guardians is the same as that allowed to execu- 
 tors and administrators by ch. 362, Laws 1863 
 (6 Edm. Stats. 126). Sup. Ct., Sp. T., 1872, 
 Foley V. Egan, 13 Abb. N. S. 861, note. S. P., Ct. 
 App'., 1872, Morgan v. Hannas, 13 Abb. N. S. 
 361 ; S. C, 49 N. Y. (4 Sick.) 667. 
 
 21. On turning over the estate with its invest- 
 ments to his successor in the trust, the guardian 
 is not entitled to commissions on investments 
 made by his predecessors, which have not been 
 necessarily or properly changed. lb. 
 
 22. A guardian cannot be allowed extra com- 
 pensation for services not strictly within the line 
 of his official duty, e. g., for personal services as 
 a mechanic in making repairs to the buildings on 
 the estate ; even though they were performed by 
 him under the direction of the surrogate. lb. 
 
 23. Annual rests cannot be made for t^ie pur- 
 pose of allowing commissions at full rates upon 
 the balance then found ; but where they are 
 required by special direction of the court for the 
 sake of charging the trustee with interest, or by 
 a rule of court, or the provisions of statute, then 
 full commissions may be computed upon the 
 amounts, excluding re-investments. lb. 
 
 24. A guardian is required by statute to file 
 accounts with the surrogate each year, and his ac- 
 counts will necessarily show annual rests, and 
 he may be allowed commissions in full upon 
 each account rendered. lb. 
 
 GUEST. 
 See Bailment ; Innkeepek. 
 
 HABEAS CORPUS. 
 See Ch. 663, Laws of 1873. 
 
 1. In general. The right to relief- from 
 illegal imprisonment by means of this remedial 
 writ is not the creature of any statute, but 
 exists as a part of tlie common-law of the State. 
 The writ cannot be abrogated, or its efiiciency 
 curtailed by legislative action, nor can cases 
 within the relief afforded by it at common-law, 
 except by an amendment of the constitution, be 
 placed beyond its reach and remedial action. 
 Ct. App., 1875, People ex rel. Tweed v. Liscomb, 
 60 N. T. (15 Sick.) 559; Kev'g S. C, 3 Hun, 
 760. 
 
 2. The various statutes of this State on the 
 subject have not been intended to detract from 
 its force, but rather to add to its efficiency. lb. 
 
 3. Jurisdiction of the writ of habeas corpus 
 may be said to be a jurisdiction sui generis, not 
 distinctively of law or equity, but embracing 
 both to a limited extent, where they have been 
 found essential to liberty. Recorder's Court, 
 1873, People ex rel. Seilbronner v. Hosier, 14 Abb. 
 N. S. 414. 
 
 4. The Recorder of the city of Albany pos- 
 sesses the power of a Supreme Court judge 
 at chambers in matters of both legal and equit- 
 able cognizance, and he has jurisdiction of a 
 proceeding by habeas corpus. lb; 
 
 24 
 
 5. 'Who may issue -writ. During the ses- 
 sion of the Court of Oyer and Terminer of 
 King's County, a justice of the Supreme Court 
 in the city of New York has no power to allow a 
 writ of habeas corpus to bring before liimself a 
 witness, who. has been committed by the former 
 court for refusing to testify before the grand 
 jury, and discharge him. Sup. Ct., 1874, People 
 ex rel. Phelps v. Fancher, 2 Hun, 226. 
 
 6. A judge of the Supreme Court at Cham- 
 bers may issue a writ of habeas corpus, although 
 the court may at the time be in session. Sup. 
 Ct. at Chambers, 1873, Shank's Case, 15 Abb. 
 N. S. 38. 
 
 7. Such writ may be granted by a judge of 
 the court in a county into which a prisoner com- 
 mitted for contempt in another county has been 
 brought on habeas corpus ad testificandum, to in- 
 quire into the cause of his detention, and if it be 
 found illegal he may be discharged there. lb. 
 
 8. Writ, vrhere returnable. A writ of 
 habeas corpus to inquire into the cause of deten- 
 tion of a person under committment for con- 
 tempt, need not be returnable before the Court 
 of Oyer and Terminer, although in session at 
 the time. Sec. 27, ch. 460, Laws 1847, relates 
 only to prisoners confined in the common jail of 
 a county upon a criminal charge. lb. 
 
 9. Such writ, when issued in a county to 
 which a prisoner has been brought on a habeas 
 corpus ad lestijicandum, need not be made return- 
 able before the Court of Oyer and Terminer of 
 the county from which he was brought, although 
 then in session. lb. 
 
 10. It is not necessary to make the writ of 
 habeas corpus for the purpose of admitting a con- 
 victed prisoner to bail, pending a writ of error, 
 returnable before an officer in the county wliere 
 he is confined, but tlie justice issuing it m^y in 
 his discretion hear it in another county. Sup. 
 Ct, 1871, People v. Folmsbee, 60 Barb. 480. 
 
 11. In -what cases may issue. Where a 
 writ of error has been allowed, with a direction 
 that it shall operate as a stay of the execution of 
 the judgment, in a case where a person has been 
 convicted of a misdemeanor and sentenced to 
 imprisonment, such person has a right to be 
 heard on an application to be let to bail pending 
 such writ, under sec. 19, 2 Edm. Stats. 765, even 
 after imprisonment under the judgment lias com- 
 inenced ; and he may, in tlie discretion of the 
 judge before wliom he is brought, be let to bail, 
 in such a case. lb. 
 
 12. Notwithstanding the provision of sec. 5, 
 2 R. S. 560 (2 Edm. Stats. 580), that a prisoner 
 committed on a criminal charge, and brought 
 up on habeas corpus to testify, shall be remanded 
 after having testified, a writ of habeas corpus will 
 lie to inquire into the legality of his commit- 
 ment. Sup. Ct. at Chambers, 1873, Shank's Case, 
 15 Abb. N. S. 38. 
 
 13. What may be inquired into. Upon 
 habeas corpus proceedings for the discharge of a 
 person imprisoned for contempt, the question 
 may be raised whether the court committing 
 him had jurisdiction or power to do so in the 
 particular case. Sup. Ct. Chambers, 1875, In 
 Matter of Jacobs, 49 How. 370. 
 
 14. Where tlie commitment is for refusal to 
 pay a certain sum as a fine, included in which is 
 a counsel fee illegally and improperly allowed 
 the adverse party, 'it being for the whole sum is 
 bad as a whole, and the relator should be dis- 
 charged. Ibf 
 
 15. The courts have power to interfere by writ 
 of habeas corpus, and under it to examine the 
 grounds upon which an executive warrant is is- 
 
370 
 
 HABEAS CORPUS. 
 
 sued for the apprehension of a fugitive from jus- 
 tice ; and, in ease the papers are defective or 
 insufficient, to discharge the prisoner. Ct. App., 
 1874, People ex rel. Lawrence v. Brady, 56 N. Y. 
 (11 Sick.) 182. 
 
 16. Upon the return to a writ of habeas corpus, 
 the jurisdiction of the tribunal by which the party 
 was committed may always be inquired into, 
 and if it appears that such tribunal had no juris- 
 diction to try, convict or commit him, he is en- 
 titled to his discharge. Sup. Ct., 1872, People ex 
 rel. Stelzer v, Rawson, 61 Barb. 619. 
 
 17. To bar the applicant from a discharge 
 from arrest by virtue of a judgment or decree, 
 or an execution thereon under the habeas corpus 
 act (2 R. S. 563, sec. 22; 2 Edm. Stats. 684), the 
 court in which the judgment or decree is given 
 must have had jurisdiction to render such judg- 
 ment under some circumstances. Ct'. App., 1875, 
 People ex rel. Tweed v. Liscomb, 60 N. Y. (15 
 Sick.) 559 ; Rev'g S. C, 3 Hun, 760. 
 
 18. The prohibition of sec. 42 of that act, for- 
 bidding the inquiry, by the court or officer, into 
 the legality of any previous j\idgment, decree or 
 execution specified in sec. 22, does not take from 
 the court or officer the power, or relieve him 
 from the duty of determining whether the pro- 
 cess, judgment, decree or execution emanated 
 from a court of competent jurisdiction ; and 
 whether the court making the judgment or de- 
 cree or issuing the process, had the legal and 
 constitutional power to give such judgment or 
 issue such process. lb. 
 
 19. Although such court had jurisdiction of 
 the person and of the offense, the question 
 whether the particular judgment rendered was 
 warranted by law and within the jurisdiction of 
 the court, can be inquired into on habeas corpus. 
 lb. 
 
 20; If the record shows that the judgment is 
 not merely erroneous, but such as could not 
 under any circumstances, or upon any state of 
 facts have been pronounced, the case is not 
 within the exemption of the statute, and the ap- 
 plicant must be discharged. lb. 
 
 21. If the punishment for the offense is fixed 
 by statute, a judgment in excess of the statu- 
 tory limit is void as to the excess, and after the 
 execution of the valid part of the sentence, the 
 prisoner may be discharged on habeas corpus. lb. 
 
 22. Where a prisoner was tried upon an in- 
 dictment containing many different counts, 
 charging separate and distinct misdemeanors, 
 all of the same grade, and found guilty upon 
 12 of them, and received upon each a separate 
 sentence.^to the extreme limit of punishment 
 prescribed by law for a single misdemeanor of 
 that kind, — Meld, that the power of the court 
 was exhausted by one sentence, and that, after 
 that had been fully executed, he was entitled to 
 be discharged on habeas corpus. lb. 
 
 23. The questions whether several distinct of- 
 fenses may be joined in one indictment, or 
 whether, iipon the trial the prosecutor should be 
 required to elect between the counts, cannot be 
 determined upon a writ of habeas corpus to re- 
 lieve from imprisonment under sentence. lb. 
 
 24. Upon Aafieas corpus the legality of a com- 
 mitment for contempt, under which the prisoner 
 is held, may be inquired into, and if it is illegal, 
 the prisoner should be discharged. Sup. Ct. at 
 Chambers, 1873, Shanks' Case, 15 Abb. N. S. 38. 
 
 25. Thus, where it appears on the hearing 
 that the commitment for contempt is for an in- 
 definite time, and not limited to a period not ex- 
 ceeding 80 days as, required by law, the pris- 
 oner should be displS'i'ged. lb. 
 
 26. Where it appears by the return to a writ of 
 habeas carpus, and proceedings before a U. S. 
 commissioner, brought before a State court by 
 writ of certiorari, that the prisoner is in custody 
 of the U. S. Marshal by virtue of proceedings 
 authorized by act of Congress, to determine 
 whether he should be extradited under a treaty 
 with a foreign power, that such proceedings 
 were regular, and that upon the conclusion 
 thereof the proper warrant was issued to the 
 marshal directing him to deliver the custody of 
 the accused party to persons authorized to re- 
 ceive him for extradition, the State court has 
 no jurisdiction to review such proceedings, but 
 should dismiss the writ. Sup. Ct., Sp. T., 1873, 
 People ex rel. Maedonnell v. Fiske, 45 How. 294. 
 
 27. Arrest illegal. Where creditors procured 
 an indictment to be found here against a debtor 
 who has absconded and gone to France, for the 
 statutory crime of burglary in the third degree, 
 and him to be forcibly seized in France and 
 brought to New York under the form of the extra- 
 dition treaty, although the crime in that degree 
 was not within the provisions of the treaty, and 
 upon his arrival here had him arrested in civil 
 actions commenced by them ; — Held, that the 
 whole proceeding was illegal and unauthorized, 
 and was an abuse of legal process, such as to re- 
 quire the court to set aside the arrest, and it has 
 power to do so under the habeas carpus and certi- 
 orari acts. Sup. Ct., 1873, /n matter of Lagrave, 
 45 How. 301 ; S. C, 14 Abb. N. S. 333, note. 
 
 28. In such case, if the defendant is also under 
 arrest upon a criminal warrant on the indict- 
 ment for burglary in the third degree, served by 
 tlie sheriff of New Vork after his arrival here, 
 his 'having been forcibly brought within the 
 jurisdiction is no ground for discharging the de- 
 fendant, and he will be remanded to the custo- 
 dy of the sheriff. lb. 
 
 29. A person held under a warrant from the 
 govornor for surrender to the Belgian govern- 
 ment, on a charge of murder, arson and rob- 
 bery committed in that country, will not be dis- 
 charged on habeas corpus, although that warrant 
 is void, where it appears that he is also commit- 
 ted on an indictment for bringing stolen goods 
 into this State. N. Y. Supr. Ct., In Matter of 
 Voght, 44 How. 171. 
 
 30. Contempt plainly charged. If, upon 
 return to the habeas corpus, it appears that the 
 prisoner was committed for a contempt in refus- 
 ing to answer a proper question put to him by 
 the grand jury, plainly and specially charged in 
 the commitment, by a court having authority 
 so to commit, it is the duty of the magistrate to 
 remand the prisoner. He has no power to in- 
 quire into the justice or propriety of the com- 
 mitment. Sup. Ct., 1874, People ex rel. Phelps 
 v. Fancher, 2 Hun, 226. 
 
 31. A person committed for a contempt, plain- 
 ly charged in the commitment, should not be 
 discharged on habeas corpus merely because the 
 court added to the amount imposed upon him 
 tor the indemnity of the other party and his 
 costs and expenses an unauthorized allowance 
 of a specified sum for counsel fees, but he should 
 be remanded until he pays the sum lawfully im- 
 posed. Sup. Ct., 1875, People ex rel. Woolfr. 
 Jacobs, 5 Hun, 428. 
 
 32. Upon appeal the order would be held valid 
 except as to such counsel fee, and cannot there- 
 fore be held wholly invalid on habeas corpus. lb. 
 
 88. Custody of child. If, after children 
 are brought into court by their father, in obe- 
 dience to a writ of habeas corpus sued out by 
 their mother, who claims the custody of them, 
 
HANDWRITING— HIGHWAYS AND BRIDGES. 
 
 371 
 
 the father and mother stipulate and consent that 
 the writ be dismissed, it is proper for the court 
 by its order, not only to dismiss the writ, but 
 to remand the children to the custody of the 
 father, who is prima ^cie entitled thereto; but 
 such an express provision in the order is not 
 necessary for the purpose of restoring to him his 
 parental authority. Sup. Ct. Chambers, 1872, 
 in Matter of Viele, 44 How. 14. 
 
 34. Where a child which has been supported 
 as a pauper has been bound out as an appren- 
 tice by the proper officers, her father cannot in 
 proceedings by habeas corpus avail himself of the 
 omission of the child to sign the indentures, or 
 of the persons to whom she .was bound to ex- 
 ecute the obligation on their part required by 
 sec. 4, ch. 411, Laws of 1869. Ct. App., 1876, 
 People ex ret. Wehle v. Weissenbacli, 60 N. Y. 
 (15 Sick.) 385. 
 
 36. Even though the indentures be held not 
 binding on the child, the court will not as of 
 course commit her to the custody of her father, 
 but will ascertain her inclination and choice, and, 
 in its discretion, yield to them. lb. 
 
 86. Second -writ. A decision under one 
 writ refusing to discharge a prisoner from cus- 
 tody, does not bar the issuing of a second writ 
 by another court or officer, upon application 
 for the same cause. Ct, App,, 1874, People ex 
 rel. Lawrence v. Brady, 56 N. Y. (11 Sick.) 182. 
 
 HANDWRITING. 
 See Evidence. 
 
 HEARSAY. 
 See Evidence. 
 
 HEIRS AND DEVISEES. 
 
 1. Actions by. An action by an heir, under 
 ch. 238, Laws 1863 (4 Edm. Stats. 503), to test 
 the validity of an alleged devise of real estate, 
 is not an action of ejectment, and has not the 
 effect of such an action in determining the title 
 to the land ; and the unsuccessful party is not 
 entitled, as a matter of right, to a new trial. Ct. 
 App., 1871, Marvin v. Marvin, 11 Abb. N. S. 
 102. 
 
 2. Actions against. Heirs-at-law and de- 
 visees of real estate may properly be joined as 
 defendants, in an action by a creditor of the de- 
 ceased to recover a claim out of his real estate, 
 wliere the complaint alleges that the real estate 
 which has passed to the heirs-at-Iaw is insuffi- 
 cient to satisfy the claim ; and, in such case, the 
 judgment may direct the estate which descend- 
 ed to the heirs-at-law to be first exhausted. 
 Sup. Ct., 1875, Rockwell v. Geery, 4 Hun, 606. 
 
 8. Assets exhausted. An action can be 
 maintained against heirs and devisees of real 
 estate, to recover a claim against the deceased 
 out of such real estate, notwitlistanding a dis- 
 puted and litigated claim remains in the hands 
 of the executors; and the recovery of a judg- 
 ment therefor by the executors pending the ac- 
 tion against the heirs and devisees does not de- 
 feat that action. lb. 
 
 4.,^TJje rights of the heirs and devisees, in case 
 judgment is rendered against and collected from 
 
 them, would be protected on the principle of 
 subrogation, if assets afterward came to the 
 hands of the executors, and if they so came be- 
 fore the collection of the judgment the court 
 could interfere for their protection, by making 
 such directions as might be shown on the appli- 
 cation to be j ust and equitable. lb. 
 
 5. Evidence. A judgment recovered against 
 the executors for the same claim, although per- 
 haps not evidence of the indebtedness as against 
 heirs and devisees, is competent as tending to 
 show what steps have been taken to reach the 
 assets of the estate, and whether they had been 
 exhausted ; and it is conclusive evidence of the 
 amount of the indebtedness of the estate to the 
 plaintiffs. lb. 
 
 6. Contribution. The true basis of appor- 
 tionment as between the defendants, is the 
 value of the respective parcels received by them, 
 as of the time of the testator's death. lb. 
 
 7. Where the children of the deceased are de- 
 visees of real estate, a posthumous child, who, 
 under the statute, receives the same share of 
 the property as if the father had died intestate, 
 should contribute only ratably with the other 
 children to the payment of the claim. lb. 
 
 HIGHWAYS AND BRIDGES. 
 
 1. Dedication. Streets laid out upon a vil- 
 lage map, properly recorded, do not become 
 public highways until accepted by the proper 
 autliorities, although lots bounded thereon are 
 conveyed by the proprietor. Ct. App., 1871, 
 
 Wohler v. Buffalo and State Line R. R. Co., 46 N. 
 Y. (1 Sick.) 686; and Miller v. Same, id. 687. 
 
 2. An alley within the limits of a city having 
 been open and dedicated to the public use for a 
 period of over 20 years, though without any 
 acts of the municipal authorities indicating the 
 exercise of authority; or jurisdiction over it, the 
 acceptance of an amended cliarter providing 
 that any street, alley, or lane, which shall have 
 been opened and publicly used for five years shall 
 become a public way for all purpeses, and giv- 
 ing the common council the same power over it 
 as over streets laid by them, will, ipso facto, con- 
 stitute such alley a public highway without other 
 acceptance, and render the city liable for its re- 
 pair. Ct. App., 1871, Requa v. City of Rochester, 
 45 N. Y. (6 Hand,) 129. 
 
 3. Dedication and acceptance by the public 
 authorities create a highway, without regard to 
 the length of time it may have been used ; but 
 neither recognition nor acquiescence can operate 
 by way of estoppel, until the expiration of 20 
 years from the commencement of the user. Sup. 
 Ct., 1865, Chapman v. Swan, 65 Barb. 210. 
 
 4. Proof by witnesses, that they lived on and 
 used tl)e alleged road more than 20 years prior 
 to the suit, and that since then it has been trav- 
 elled and worked like other highways, is suffi- 
 cient /wma_/acje to establish a highway by user, 
 lb. 
 
 5. Private road. The consent of the owner 
 of land, over which a private road is laid out by 
 commissioners, is essential to its validity, tliey 
 having no power to lay it without such consent ; 
 and the road must, therefore, he laid, if not in 
 strict, at least in substantial accordance with the 
 consent, to be valid. Sup. Ct., 1872, Dempsey v. 
 Kipp, 62 Barb. 311. 
 
 6. If, upon a consent to lay out a private road 
 as applied fm; which was one-half upon each side 
 of the line dividing two farms, the commission-^ 
 
372 
 
 HIGHWAYS AND BRIDGES. 
 
 ers lay it all upon the side of the consenting 
 party, he or his grantee, upon afterward discov- 
 ering that fact, has the right to close up such 
 road, and prevent travel over it. lb. 
 
 7. Discontinuance. The last clause of sec. 
 1, ch. 311, Laws of 1861 (3Edm. Stats. 541), de- 
 claring that " all highways that have ceased to 
 be travelled or used as highways for six years, 
 shall cease to be " such for any purpose, applies 
 not only to highways laid out and dedicated to 
 the public use, but to those acquired by 20 
 years user. But the cessation of user, to work 
 a discontinuance, must be wholly after the pas- 
 sage of the act. Leonasd, C, dissents. Com. 
 App., 1871, Amsbri/ v. Hinds, 48 N. Y. (3 Sick.) 
 57 ; Aff'g S. C, 46 Barb. 622. 
 
 8. An application to the commissioners of 
 highways by persons liable to be assessed for 
 highway labor in the town, to discontinue a 
 road, is not necessary to the right of the com- 
 missioners to discontinue it. Com. App., 1873, 
 People ex rel. Bristol v. Nichols, 51 N. T. (6 
 Sick.) 470. But see ch. 69, Laws o/1873. 
 
 9. Any part of a road clearly useless is a road, 
 for all the purposes of exercising authority for 
 its discontinuance, and may be discontinued 
 without affecting the residue ; and the right 
 to leave one end bounded by private property is 
 within the power of the commissioners as well 
 as of referees appointed under the statute. lb. 
 
 10. The reversal by former referees, of an 
 order discontinuing a highway, is no bar to new 
 proceedings within four years, for its discontin- 
 uance ; such decision not being within the mean- 
 ing of the statute, an order " laying out, alter- 
 ing or discontinuing" a highway, but rather, one 
 refusing to discontinue. lb. 
 
 11. If the evidence before the referees is suf- 
 ficient to fairly raise the question whether that 
 portion of a road embraced in an order of dis- 
 continuance had become unnecessary for public 
 use, their decision affirming that of the commis- 
 sioner is conclusive, but the affirmative upon 
 the hearing before them is with the party seek- 
 ing a discontinuance. lb. 
 
 12. Ascertaining. An order made by the 
 commissioners of highways, that a certain road, 
 which appears to them to have been used as a 
 highway for more than 20 years, be ascertained 
 and recorded, is not conclusive upon one who 
 claims that it is merely a private road, and that 
 he is the owner of the soil. The statute (1 R. S. 
 501, sec. 1) merely authorizes the commissioners 
 to perpetuate the evidence of a public right, 
 not to create or enlarge it. Sup. Ct., 1875, Cole 
 V. Van Keuren, 4 Hun, 262. 
 
 13. A provision in a village charter authoriz- 
 ing the trustees to " survey and determine the 
 boundaries of the streets of said village, and to 
 make and establish a map thereof, and file tlie 
 the same with the clerk," &c., merely authorizes 
 them to survey and determine such boundaries 
 as they find then actually existing and estab- 
 lished, either by record, or by user wliere there 
 is no record ; and tliey cannot, under it, decide 
 and declare that an ancient fence is an encroach- 
 ment upon the street. Sup. Ct., Sp. T., 1872, 
 Marvin v. Pardee, 64 Barb. 353. 
 
 14. Laying out. Tiie legislature may, by its 
 own inlierent power, locate a higliway and pro- 
 vide for j^aying the damages and opening and 
 working it, without the instrumentality of high- 
 way commissioners, and may also provide for 
 the apportionment of the expenses, and for the 
 manner of collection. Sup. Ct., 1875, People ex 
 rel. Kilmer v. McDonald, 4 Hun, 187. 
 
 15. A commissioner of highways, it seems, is 
 
 not disqualified from acting with other commis- 
 sioners in laying out a road, because he owns 
 land over which it is laid. Sup. Ct., ISli, People 
 ex rel. Tompkins v. Landreth, 1 Hun, 544. S. P., 
 Foot V. Stiles, 57 N. Y. (12 Sick.) 399. 
 
 16. Through garden. To entitle land to the 
 protection of the statute prohibiting the laying 
 out of a highway through a garden, &c., without 
 tlie consent of the owner (1 R S. 514 ; 1 Edm. 
 Stats. 473), it is not sufficient that it be enclosed 
 with, but it must be a part of a cultivated garden, 
 and must have been cultivated as such for four 
 years. Com. App., 1874, People ex rel. Cooke 
 V. Commrs. of Highways of Greenburgh, 57 N. Y. 
 (12 Sick.) 549. . 
 
 17. Notice by applicaiit. It is a sufficient 
 compliance with the provisions of the Revised 
 Statutes, as amended by ch. 315, Laws 1873, re- 
 lative to notices by the applicant, if the notice 
 to the town clerk specifies the day, and that to 
 the justice and the commissioners asks for a jury, 
 but does not name a day for the drawing, where 
 the two commissioners attend the drawing of 
 jurors, and the justice issues a summons for and 
 swears the jurors, though not present at the draw- 
 ing. Sup. Ct., 1874, People ex rel. Ludlum v. Wal- 
 lace, 2 Hun, 152. 
 
 See ch. 613, Laws o/1874. 
 
 18. The order. An order laying out a high- 
 way, which is signed by only two of the com- 
 missioners, and does not recite that they all met 
 and deliberated on the subject embraced in such 
 order, or were duly notified to attend a meeting 
 for that purpose, is illegal, and is not evidence 
 of the laying out of a highway. Sup. Ct., 1865, 
 Chapman v. Swan, 65 Barb. 210. 
 
 19. An order laying out a highway, signed by 
 one commissioner in person, who also attaches 
 the name of bis associate commissioner thereto 
 in his absence, though under a direction given to 
 him by the latter when both were present super- 
 intending the survey, and before it was com- 
 pleted, is void. Sup. Ct., 1874, Todd v. Todd, 3 
 Hun, 298. 
 
 20. To be valid evidence of the existence of a 
 highway, the record thereof should show affirm- 
 atively that the commissioners acquired juris- 
 diction. Ct. App., 1874, Miller v. Brown, 56 N. 
 Y. (11 Sick.) 383. 
 
 21. Where liighway commissioners attempted 
 to lay a road under a statute authorizing them, 
 when a road ran through the land of an individ- 
 ual, to exchange the same by agreement with 
 the owner for another road across tlie same land ; 
 — Held, that the record of their action reciting 
 that the highway was an exchange but not stat- 
 ing that it was by agreement of the owners of 
 the land, did not show jurisdiction, and could 
 not be aided by intendment or presumption. lb. 
 
 22. Ho-w completion of proceedings 
 compelled. Commissioners of higliways who 
 have duly taken all necessary proceedings to lay 
 out a highway, except the making, signing and 
 filing of the order or certificate of their decision, 
 and causing the damages of T)ne of the land- 
 owners to be assessed, may be compelled by 
 mandamus on relation of such owner, to complete 
 their proceedings in those respects, and cause 
 the road to be opened and worked. Sup. Ct., 
 1874, People ex rel. Nelson v. Jefferds, 2 Hun, 149. 
 
 23. Damages. It is not an objection to the 
 legal existence of a highway that the damages 
 for land taken were not ascertained by agree- 
 ment, or assessed in the manner prescribed by 
 law. The land-owner's remedy is by appeal or 
 certiorari. Sup. Ct., 1871, Cooper v. Bean, 5 Lans. 
 ol8. 
 
HIGHWAYS AND BRIDGES. 
 
 373 
 
 As to assessment of damages see ch. 316, Laws 
 1872. 
 
 24. So held in a case where the sum of, 10 
 cents was assessed to the holder of a life estate 
 and the remainder-man, in the form of a joint 
 assessment. lb. 
 
 25. If adequate provision is made in the high- 
 way law for the early as well as certain payment 
 of compensation for lands taken, it is not neces- 
 safy that an assessment of damages shall pre- 
 cede the actual appropriation, nor will the owner 
 be justified in obstructing the highway or oppos- 
 ing the appropriation for want of such assess- 
 ment. Com. App., 1873, Chapman v. Gates, 54 
 N. Y. (9 Sick.) 132. 
 
 26. 'Where lands owned by a city in fee for 
 the purposes of a public park are taken for a 
 highway, under an act providing for the pay- 
 ment of compensation to the owners of lands 
 taken, without special reference to such lands 
 held for a park, the city is entitled to compen- 
 sation therefor as other owners. Ct. App., 1871, 
 Matter of Ninth Ave. and Fifieeeth Street, 46 N. 
 Y. (6 Hand,) 729. 
 
 27. It cannot be determined, as matter of law, 
 that lands held only for park purposes are of no 
 more value to the city than the same lands de- 
 voted to the public use as streets, and the award 
 of the commissioners, confirmed by the Supreme 
 Court, is conclusive, lb. 
 
 28. The true measure of damages to which an 
 owner of gypsum upon land over which a road 
 is to be laid out, having the right to raise and 
 remove the same, is entitled, is the difference 
 between the Value of his estate or interest with- 
 out the road, and its value witli the road. Sup. 
 Ct., 1875, People ex rel. Van Sickle' v. Eldredqe, 3 
 Hun, 541. 
 
 29. In proceedings under the statute for the 
 reassessment of damages for laying out a liigh- 
 way, tlie jurors are judges of the law and fact, 
 and the justice is not required to charge them, 
 lb. 
 
 30. Re-assessment of damages. An appli- 
 cation, under ch. 455, Laws of 1847 (3 Edm. 
 Stats. 312), for a re-assessment of damages by a 
 jury, upon the laying out, &c., of a higliway, is 
 not an appeal in any sense, but is merely a con- 
 tinuation of the same proceeding before another 
 tribunal. Sup. Ct., 1871, People ex rel. Lewis v. 
 White, 59 Barb. 666. 
 
 31. Such an application may properly be made 
 by several owners of lands over which such 
 highway is laid, acting together instead of sep- 
 arately ; and, it being the duty of the same jury 
 drawn upon the first application to re-assess the 
 damages for all the landowners who are ag- 
 grieved upon the same highway, separate appli- 
 cations would seem to be supenduous. lb. 
 
 32. The statute is broad enough to cover all 
 questions that may arise in respect to the ap- 
 portionment of costs of the proceedings. lb. 
 
 33. In the absence of any positive directions 
 of the statute as to the manner of proceeding, 
 the court will apply the rule that, the statute 
 conferring power and jurisdiction to act in the 
 matter, without prescribing the form of pro- 
 ceeding, confers all necessary powers to carry it 
 into effect lb. 
 
 34. The town clerk has no authority to sum- 
 mon a jury to re-assess damages for laying out 
 a highway, or the jury to act, unless notice was 
 served on such clerk by the party aggrieved 
 within 20 days after the filing of the com- 
 missioners' assessment. Ct. App., 1875, People 
 ex rel. Mann v. MoU, 60 N. Y. (15 Sick.) 649; 
 Afi'g S. C, 2 Hun, 672. 
 
 85. The commissioners have no authority to 
 file an amended assessment, after they have 
 completed one and delivered it to the commis- 
 sioners of highways. lb. 
 
 36. Appeal to referees. In case of the dis- 
 ability of the county judge to appoint referees 
 to hear an appeal from the determination of 
 commissioners in proceedings for the laying out 
 of a highway, he has no riglit to designate by 
 order the justice of the sessions who shall make 
 such appointment, under the provisions of ch. 
 455, Laws of 1847 (3 Edm. Stats. 314), yet his 
 making such order will not affect the validity of 
 an appointment made by the justice designated. 
 Com. App., 1874, People ex rel. Cooke v. Comm'rs 
 of Highways of Greenburgh, 57 N. Y. (12 Sick.) 
 549. 
 
 37. Where two appeals are pending before the 
 county judge, from conflicting determinations of 
 two commissioners of highways, tlie one refusing 
 and the other ordering tlie road to be laid out 
 upon the same certificate of freeholders, he may 
 properly, by one order, refer both to the same 
 referees. Com. App., 1873, People ex rel. Odle v. 
 Kniskern, 54 N. Y. (9 Sick.) 62. 
 
 38. Pov^er of referees. Referees appointed 
 on appeal from an order of tlie commissioner of 
 liighways, founded on a certificate of freeholders, 
 liave no power to review the proceedings before 
 the freeliolders. Accordingly, — Held, that evi- 
 dence offered before tliera of false representa- 
 tions made by the applicant for a road before 
 sucli freeholders, was properly rejected, lb. 
 
 39. Notice of hearing. Wliere referees ap- 
 pointed upon two appeals from conflicting de^ 
 cisions of two commissioners of highways — the 
 one refusing, and tlie other ordering a road to 
 be laid out upon the same freeholder's certificate, 
 gave notice to occupants of the time for hearing 
 the appeals, and tlien adjourning after the hear- 
 ing, gave notice that on the adjourned day they 
 would meet and decide upon the application for 
 a highway ; on which day they reversed botii 
 orders and then proceeded, without further no- 
 tice, to lay out the higliway, — Held, that the 
 notice was insuflicient and the highway was not 
 properly laid. Eakl, C, dissents. lb. ' 
 
 40. Notice to open. Unless notice to remove 
 fences is given as required by statute (IE. S. 
 520, sec. 96 ; 1 Edm. Stats. 480), the commis- 
 sioner cannot lawfully order the road opened, 
 nor maintain an action for an obstruction there- 
 to. Sup. Ct., 1871, Cooper v. Bean, 5 Lans. 318. 
 
 41. Encroachments. Commissioners of 
 highways have no right to tear down and remove 
 a fence as an encroachment upon a . highway, 
 unless such highway has been laid out and re- 
 corded in the manner required by the highway 
 act. They have no jurisdiction of proceedings 
 for such encroachments upon a highway by mere 
 user. Sup. Ct., Sp. T., 1872,-il/arain v. Pardee, 
 64 Barb. 353. 
 
 42. Unless a highway has been laid out and 
 recorded in conformity to the statute, highway 
 commissioners cannot make any order for the 
 removal of encroachments, nor maintain any 
 action to recover the penalties given by statute 
 for a neglect to remove alleged encroachments 
 in obedience to their orders. Sup. Ct., 1871, 
 Christy v. Newton, 60 Barb. 332. 
 
 43. Neither can proceedings be taken for an 
 encroachment on a portion of a highway which 
 was not opened or worked for 14 years after it 
 was laid out, because, after sueli lapse of time, 
 it ceases to be a highway for any purpose. lb. 
 
 44. An order purporting to be made by three 
 highway commissioners, but signed by only two 
 
374 
 
 HIGHWAYS AND BRIDGES. 
 
 of them, and not showing that the other commfs- , 
 sioner was notified to attend, or had any knowl- 
 edge of the proceedings, and not sustained by 
 proof that the preliminary steps required by 
 statute had been taken, — Held, to be a nullity, 
 lb. 
 
 45. The public can acquire no rights under an 
 order signed by two commissioners, which re- 
 cites that all the'commissioners had been notified 
 to attend a meeting for the purpose of delib- 
 erating upon an application " to establish the old 
 Allegany road as a public highway," no such 
 proceeding being authorized by statute. lb. 
 
 46. X!:scavations. No person, wlietherhebe 
 the owner of the land or not, has the right to 
 place obstructions or make excavations in a 
 highway ; or, if he does temporarily, and for 
 purposes of business, he is bound to take all 
 reasonable precautions against danger to per- 
 sons lawfully using the highway, otherwise he 
 will be held liable for damages sustained in con- 
 sequence of his negligence in respect thereto. 
 Sup. Ct., 1866, Wright v. Saunders, 65 Barb. 
 214. 
 
 47. Bridges, erection of. In executing the 
 power to provide for tlie erection of bridges, &c., 
 conferred upon them by ch. 855, Laws of 1869, 
 county supervisors may appoint commissioners 
 to carry out the work. Sup. Ct., Sp. T., 1870, 
 People V. Meach, 14 Abb. N. S. 429. 
 
 48. The fact that there is no highway leading' 
 to the site selected by them for the bridge, at 
 the time of such selection, does not render its 
 erection illegal. lb. 
 
 49. The clause res'training them from erecting 
 bridges over navigable streams, has reference to 
 streams capable of use for navigation in some 
 useful, substantial and practical way. lb. 
 
 60. Betvreen to-vrns. Under ch. 225, Laws 
 1841 (3 Edra. Stats. 633), towns on different 
 sides of a stream are bound to. contribute in 
 equal proportions to the erection and mainte- 
 nance of bridges over such stream without regard 
 to where in the stream tlie line between such 
 towns runs. Sup. Ct., 1871, Corey v. Rice, 4 
 Lans. 141. 
 
 61. This measure of liability cannot be per- 
 manently changed by award of arbitrators or the 
 judgment of a court. lb. 
 
 52. Wliere the commissioners of highways of 
 several towns contract with the builder for the 
 construction of such bridge, their liability is 
 joint ; and if two out of three commissioners 
 pay the whole cost of the bridge, each may sue 
 the third for the amount he has paid for tlie 
 latter. The two cannot join in such suit, if they 
 paid out of their several funds, lb. 
 
 53. Where the contract runs in the names of the 
 towns, but is signed by the commissioners with- 
 out adding their ofiicial titles, the towns are 
 bound thereby. lb. 
 
 54. Towns separated from each other by a 
 stream of water are not required bylaw to build 
 a bridge across it at their joint expense, unless 
 there is a continuous line of highway from one 
 town across the stream into or through the other 
 town. Sup. Ct., 1872, Beckwith v. Whalen, 5 
 Lans. 876. 
 
 65. Where the highway once laid to the stream 
 in one town has nof been opened or worked for 
 10 years, it will be presumed to be abandoned, 
 and the town on the opposite side cannot compel 
 the former town to contribute for a bridge built 
 by the latter town, after notice. lb. 
 
 56. Chapter 639, Laws of 1867, does not, it 
 seems, repeal ch. 225, Laws of 1841, as amended 
 by ch. 888, Laws of 1857, and is not wholly in- 
 
 consistent therewith. It simply provides for an- 
 other and different mode of procedure as-to the 
 erection of a bridge between towns, but does not 
 make that mode exclusive. lb. 
 
 67. Liability for non-repair of. A highway 
 commissioner who has received notice of the 
 unsafe character of a bridge in his town, a year 
 before the occurrence of an injury alleged to 
 have been caused by the defect, and has negli- 
 gently omitted to cause it to be repaired, is guilty 
 of a wrong, which renders him liable for all its 
 consequences to persons injured by it. Sup. Ct., 
 1872, Lamont V. Haiyht, 44 How. 1. 
 
 68. Such wrong is chargeable to the commis- 
 sioner himself, not to his successors in office, 
 and a suit may be maintained against him indi- 
 vidually, relying upon his official obligation to 
 perform the duty violated by him. lb. 
 
 59. If a commissioner has received the requi- 
 site notice of the defect, and has funds, or can 
 by reasonable official diligence procure them, or 
 without them can cause the repair to be made 
 on the credit of the town, he is bound to have 
 sucli repair made, and his failure to do so will 
 render him individually liable for an injury re- 
 sulting therefrom. lb. 
 
 60. But such commissioner, in the absence of 
 funds 5r power to procure them, is not bound to 
 make use of his own personal exertions to repair 
 the bridge himself, or to give notice of its con- 
 dition to persons using it, in order to protect 
 himself from liability. lb. 
 
 61. Commissioners of highways cannot be held 
 liable for a loss occasioned by their failure to 
 repair a bridge except upon proof that there are 
 funds in their hands with which torepairit; yet 
 where they h&ve recognized their duty to repair 
 by commencing so to do, tlie presumption is 
 against them, and they must show that they 
 have no funds. Sup. Ct, 1874, Day v. Grossman, 
 1 Hun, 570. 
 
 62. Commissioners of highways of adjoining 
 towns are subject to the same liabilities in re- 
 spect to the repair of bridges crossing a stream 
 dividing their towns, as each is in respect to 
 bridges in his own town ; and an action can be 
 maintained against such commissioners jointly 
 by a person suffering special injury in conse- 
 quence of their neglect to make such repairs. 
 Sup. Ct., 1875, Bryan v. Landon, 3 Hun, 500. 
 
 63. The proceeding under ch. 639, Laws of 
 1857, to compel the repair of bridges for which 
 two or more towns are jointly liable, is by the 
 terms of the act applicable only to bridges over 
 streams dividing towns, and cannot be main- 
 tained in respect to a bridge built wholly within 
 one town, although it was erected under an act 
 which makes it the joint bridge of that and an 
 adjoining town. Ct. App., 1874, Cattaraugus Co., 
 Matter of Freeholders of, 59 N. Y. (14 Sick.) 316. 
 
 64. The liability of such towns to keep such 
 bridge in repair may be enforced under the gen- 
 eral acts for the maintenance of bridges, for the 
 repair of which two or more towns are liable, 
 lb. 
 
 65. On Indian reservation. The commis- 
 sioner of highways of a town which includes a 
 part of the Allegany Indian reservation, is not 
 bound to keep in repair a highway bridge within 
 such reservation, which was constructed under 
 ch. 473, Laws 1866, and is not liable for an in- 
 jury caused by its non-repair. Sup. Ct., 1874, 
 Bishop v. Barton, 2 Hun, 486. 
 
 66. La-n- of the road. A railroad company, 
 whose trSck occupies a portion of a public high- 
 way, has an exclusive right to such track, and 
 is not bound to yield it pursuant to the general 
 
HOLIDAYS— HUSBAND AND WIPE. 
 
 375 
 
 law of the road. N. T. C. P., 1872, Barker v. 
 Hudson Riv. R. R Co., i Daly, 274. 
 ' 67. Repair of highways. It is the duty of 
 the overseer of highways, under a penalty, to 
 keep the highways in his district in repair, and 
 it is well settled that this duty devolves on him 
 whether he has been directed by the commis- 
 sioners or not. Sup. Ct., 1871, Moran v. McCleams, 
 41 How. 289; S. C, 4 Lans. 288; 60 Barb. 
 388. 
 
 68. If an overseer, in the exercise of a clear 
 legal right, turns the water running in the ditch 
 at one side of the highway so that it shall 
 not cross the highway at the place where it 
 has been accustomed to, although he may there- 
 by benefit himself and injure another, his mo- 
 tives in so doing are not a proper subject of 
 inquiry in an action by the latter for the in- 
 jury, lb. 
 
 69. The act of 1863 (ch. 93 ; 6 Edm. Stats. 75), 
 authorizing the planting of shade trees and 
 making of sidewalks along highways, &c., does 
 not repeal eh. 61, Laws of 1860, relating to the 
 same general subject, which reserves to commis- 
 sioners and overseers their authority over high- 
 ways ; nor is the permission to land-owners 
 given by the former act, inconsistent with the 
 exercise of the authority conferred by law upon 
 the ofiScers charged with the care of highways 
 and bridges. Ct App., 1873, Anderson v. Van- 
 Tassel, 53 N. Y. (8 Sick.) 631. 
 
 70. In the performance of their duty to keep 
 in repair the highways in their respective dis- 
 tricts, overseers have jurisdiction over every 
 part of the highway to its entire width ; and, in 
 the absence of proof of malice or wanton injury, 
 are not liable to an adjoining owner who has 
 made improvements upon the side of the high- 
 way in front of his premises, for taking materials 
 from such side for the repair of the adjoining 
 roadway, where neither the character of the 
 improvements nor the condition of the highway 
 is such as to render such taking improper. lb. 
 
 71. Drainage. Commissioners of highways 
 have no right, for the purpose of draining a 
 highway, to divert the water from its natural 
 channel and throw it upon tlie land of an adjoin- 
 ing owner to the injury thereof. Sup. Ct., 1872, 
 Thompson v. Allen, 7 Lans. 459. 
 
 72. An overseer of highways has no right, in 
 making repairs upon a highway in his district, 
 in other respects suitable and proper, to change 
 a natural watercourse, or the natural course of 
 surface water drainage, so as to cast the water 
 upon lands of an individual abutting on the 
 highway, where it had not been previously ac- 
 customed to flow, or to increase considerably in 
 volume and quantity either the waters in a na- 
 tural watercourse, or from surface drainage, 
 flowing upon such- land, to the injury of the 
 owner. Sup. Ct., 1872, Moran v. McCleams, 44 
 How. 30 ; S. C, 63 Barb. 185 ; S. C, before, 4 
 Lans. 288 ; 41 How. 289 ; 60 Barb. 388. 
 
 73. Thepublic has the right to alter, shape and 
 fashion its roadway in such a manner as to ren- 
 der it convenient, safe and useful for the pur- 
 poses of passage, but must do so with due regard 
 to the rights of owners of adjoining lands. lb. 
 
 74. Where by 20 years, user the public 
 have acquired a prescriptive right to have the 
 water flow through a ditch in the highway for a 
 certain distance, and such ditch is changed so as 
 to turn the water in another direction, the over- 
 seer may afterward restore sucli ancient ditoh 
 to its former condition, if he deems it necessary 
 for the benefit of the road, provided in so doing 
 he does not interfere with the rights of others. lb. 
 
 HOLIDAYS. 
 
 See OH. 544, laws op 1872 ; ch. 577, laws of 
 1873. 
 
 HOMESTEAD. 
 See BxBCDTiou. 
 
 HOMICIDE. 
 See Cbihinal Law. 
 
 HOTEL KEEPERS. 
 
 Bequired to post statement op bates. Ch. 
 802, LAWS OP 1871. 
 
 HUSBAND AND WIFE. 
 
 I. Rights and liabilities of husband. 375 
 
 II. Succession ; administration 376 
 
 HI. Conveyances and dealings be- 
 tween hijsband and wife 376 
 
 IV. The wipe's sbpakate estate 377 
 
 V. Actions bt and against husband 
 
 AND WIFE ok either OP THEM .... 380 
 
 I. Rights and liabilities of husband. 
 
 1. Action for injury to ■wife. A husband 
 is entitled to recover for the loss of the services 
 of his wife, resulting from an injury received 
 tlirough the negligence of the defendant, evei 
 though she may liave recovered damages in her 
 own name for the same injury. Sup. Ct., 1874, 
 Sloan V. N. Y. Cent. §• Hud. Riv. R. R. Co., 1 
 Hun, 540. 
 
 2. The husband is not entitled to recover for 
 the pain and suflering endured by his wife, but 
 proof thereof may be admissible, to prove the 
 extent of the injury and consequent duration of 
 the loss of service. lb. 
 
 3. So far as she is injured so as to be dis- 
 abled to perform domestic services in the house- 
 hold for lier husband, the loss is his and not 
 hers, and he and not she can recover therefor 
 from the wrongdoer. But so far as slie is dis- 
 abled from performing service for others, the loss 
 and action are her own. Lott, Ch. C, dissents. 
 Com. App., 1873, Brooks v. Schwerin, 54 N. Y. 
 (9 Sick.) 343. 
 
 4. A husband is not next-of-kin to his wife, 
 within the statute (ch. 450, Laws 1847 : amended 
 by ch. 256, Laws of 1849: 4Edm. Stats. 526-7), 
 providing for a recovery in case of death caused 
 by wrongful act, neglect or default, and was 
 not, under said acts, entitled to a distributive 
 share of the amount recovered for causing her 
 death. Ct. App., 1873, Drake v. Gilmore, 52 N. 
 Y. (7 Sick.) 389. 
 
 5. The amendment of 1870 (ch. 78, Laws 1870 j 
 7 Edm. Stats. 591), does not change the rule as 
 to actions pending prior to its passage. Hence, 
 where an action brought by the husband before 
 said act, as administrator of his wife, was settled 
 by him afterward, — Held, that he was not en- 
 titled to share in the amount received. lb. 
 
 6. As to property disposed of by -wife. 
 
376 
 
 HUSBAND AND WIFE. 
 
 A wife does not become the debtor of her hus- 
 band by an unauthorized use of his property. 
 If she therewith pnreliases property, real or 
 personal, without authority, his remedy is to 
 rescind the contract and recover from the 
 ■vendors what they have received if he can, and 
 if not, then he must take the property purchased. 
 He cannot treat that as her separate estate, and 
 cliarge her with the money paid for it. Ct. App., 
 1874, Shuttlewmih v. Winter, 55 N. Y. (10 Sick.) 
 624. 
 
 7. Accordingly, where a wife during her 
 husband's lifetime, disposed of his property in 
 exchange for real estate, — Held, that as his ad- 
 ministratrix she could not be charged with the 
 avails, eitlier as assets of the estate, or as a debt 
 due from her to her husband. lb. 
 
 8. Moneys received by a husband from 
 his 'wife, in small sums and at different times 
 during coverture, without any agreement on his 
 part to refund them, become his absolute prop- 
 erty by virtue of his marital riglits, and the wife 
 cannot be allowed a claim therefor against her 
 husband's estate after his decease. Sup. Ct., 
 
 1874, Fletcher v. Uipdike, 3 Hun, 350. 
 
 9. Liability for negligence of -wife. Where 
 husband and wife are domiciled upon premises, 
 the separate and exclusive property of the wife, 
 the husband is not, in legal presumption, so in 
 control thereof as to make him responsible to a 
 party entering by permission of his wife, for 
 injuries received from the careless leaving of a 
 pit uncovered thereon ; but, to make him either 
 jointly or separately responsible, some evidence 
 should be given of liis participation in the wrong, 
 or his obligation to have obviated the cause 
 which produced the injury. Com. App., 1872, 
 Fiske V. Bailey, 51 N. Y. (6 Sick.-) 150. 
 
 10. — support of wife. Where a wife, with 
 the consent of her husband, and upon his prom- 
 ise to pay for her support, was teken home by 
 her father, and the husband subsequently pub- 
 lished a notice forbidding all persons to trust 
 her on liis account as he would thereafter pay 
 no debts of her contracting ; — Held, that such 
 notice, even if it came to the knowledge of the 
 father, did not operate as a revocation of the 
 contract, nor relieve the husband from his obli- 
 gation to furnish suitable support for her, but 
 that he was liable for her board. Ct. App., 
 
 1875, Daubney v. Hughes, 60 N. Y. (15 Sick.) 187. 
 
 11. The fact that the hnsband, on his wife's 
 visiting the house where he boarded, offered to 
 receive and take care of Iier, such offer not 
 being made known to her father, or that being 
 sent for by lier mother to go to a neighboring 
 house, she went with the consent of her husband, 
 and returned home with her mother, wonld not 
 affect the riglit of her father to recover for her 
 board thereafter. lb. 
 
 12. A man who cohabits witl) a woman, hold- 
 ing her out as his wife, is liable for necessaries 
 furnished her upon the strength of her conjugal 
 riglits, and, in an action against him tlierefor, is 
 estopped from showing that his marriage with 
 lier was void, for the reason tliat she had another 
 husband living. N. Y. C. P., 1869, Johnston v. 
 Allen. 3 Daly, 43. 
 
 13. — for tort of -wife. A wife may be 
 personally guilty of a conversion ; and the lia- 
 bility of the husband to be sued jointly witli her 
 for personal projJerty converted by lier without 
 his direction or knowledge, rests not on the 
 ground that he, in the contemplation of law, 
 was guilty of the taking or conversion, but 
 upon the incapacity of tlie wife to be sued 
 alone. Ct. App., 1872, Rowing v. Manly, 13 
 
 Abb. N. S. 276 ; S. C, 49 N. Y. (4 Sick.) 192 , 
 Kev'g S. C, 67 Barb. 479. 
 
 14. To render the husband individually liable 
 in such a case, it must appear that the goods 
 actually came to his use. lb. 
 
 15. Under the statutes of 1860 and 1862 (4 
 Edm. Stats. 515 and 517), a husband, though 
 still liable for the merely personal torts of the 
 wife, is not responsible for torts committed in 
 the management and control of her separate 
 property ; but, as to them, the wife alone is 
 liable, and may be sued therefor as if sole. Ct. 
 App., 1872, Baum v. Mullen, 47 N. Y. (2 Sick.) 
 577. 
 
 n. Succession; ADMiNiSTRAxioif. 
 
 16. Survivorship. A promissory note made 
 payable to husband and wife, would presump- 
 tively belong to the widow as survivor, upon 
 the death of her husband, whether the con- 
 sideration for it was advanced by him or by 
 her. Sup. Ct., 1871, Sanford v. Sanford, 5 Lans. 
 486 ; S. C, 61 Barb. 293. 
 
 17. Administration. The right of adminis- 
 tration upon and consequent enjoyment of the 
 wife's estate, as secured to the liusband by the 
 common-law, was expressly declared in 2 E. S. 
 74, sec. 29, and- confirmed by sec. 30, and was 
 not cut off by the married woman's acts of 1848 
 and 1849. Though recognized in 2 E. S. 98, 
 sec. 79 (2 Edm. Stats. 101), it did not depend 
 upon that section, nor did the repeal of said 
 section 30, and the amendment to t)ie last named 
 section by ch. 782, Laws of 1867, take away the 
 right, except in the single case specified of the 
 wife's dying leaving descendants. Ct. App., 
 1872, Barnes v. Underwood, 47 N. Y. (2 Sick.) 
 351 ; Eev'g S. C, 3 Lans. 526. 
 
 HL CONVETANCEB AND DEALINGS BETWEEN 
 HOSBAND AND TVIEE. 
 
 18. An ante-nuptial contract, in the ab- 
 sence of fraud, is not invalidated by the fact 
 that the intended husband was largely indebted 
 at the time, nor even that his indebtedness ex- 
 ceeded his assets. Ct. App., 1872, Starkey y. 
 Kelly, mis. Y. (5 Sick.) 676. 
 
 19. A post-nuptial agreement between 1ms- 
 band and wife is void at law, but will be en- 
 forced in equity to the extent of the considera- 
 tion actually paid. Sup. Ct., 1875, Foster v. 
 Foster, 5 Hun, 557. 
 
 20. Thus, an agreement by a husband to pay 
 his wife a certain sum each year during her life 
 if she will relinquish her dower in real estate 
 which he wishes to sell, will be enforced in her 
 favor after she has released her dower therein, 
 lb. 
 
 21. Assignment of personal property. 
 A transfer of personal property from a husband 
 to his wife, in satisfaction of a loan made by 
 her to him, will vest in her the legal title to such 
 property. Com. App., 1871, Savage v. O'Neil, 
 44 N. Y. (5 Hand,) 298 ; Eev'g S. 'C, 42 Barb. 
 374. 
 
 22. Whether the money loaned was given to 
 the wife before or since the act of 1848, makes 
 no difference, so long as the husband has never 
 cho.sen to avail liimself of his marital rights to 
 appropriate it. lb. 
 
 28. Gift. Under the laws of this State a 
 husband may make a valid gift to his wife, the 
 claims of creditors not intervening ; and such a 
 gift of a judgment and mortgages may be made 
 by delivery of the securities, without written 
 
HUSBAND AND WIFE. 
 
 377 
 
 assignment. Sup. Ct., 1874, Mack v. Mack, 3 
 Hun, 322. 
 
 24. Where a husband takes a note for a loan 
 payable to the order of himself and wife, this 
 constitutes a gift of the note to the wife, in case 
 she survives him, and the note remains unpaid 
 at the time of his death ; and she cannot be re- 
 quired.to make her election between such note 
 and a provision made for her in his will, to be 
 accepted in lieu of dower and all glaims upon 
 the estate, but is entitled to both. Ct. App., 
 1874, Sanfard v. Sanford, 58 N. Y. (13 Sick.) 69 ; 
 S. C, before, 45 N. Y. (6 Hand,) 723. 
 
 25. Where, upon the settlement of a claim, the 
 husband's debtor at his request gives his note for 
 the balance, payable to the order of the wife, 
 which is delivered to and retained by her, that 
 constitutes a valid gift from the husband to the 
 wife, and vests in her a valid title to the note, as 
 against the next-of-kin. Ct. App., 1873, Reed v, 
 Reed, 52 N. Y. (7 Sick.) 651. S. P., Rynders v. 
 Crane, 3 Daly, 839. 
 
 26. It seems that articles of personal property, 
 purchased by a husband as presents for his wife 
 and brought into the house as her property, and 
 notoriously recognized as such, though kept in 
 a house occupied by them jointly, may be re- 
 tained by the wife as against either the cred- 
 itors of or purchasers from the husband. Ct. 
 App., 1872, Reed v. Gannon, 50 N. Y. (6 Sick.) 
 345; Eev'g S.C, 3 Daly, 414. 
 
 27. The relation of husband and wife between 
 donor and donee does not render a gift invalid. 
 Ct. App., 1874, Shuttleworth v. Winter, 55 N. Y. 
 (10 Sick,) 624. 
 
 28. Where a husband, upon leaving home for 
 a prolonged absence, procured a tin box in which 
 he placed a quantity of U. S. treasury notes, 
 with the name of his wife written upon a card 
 on the cover, and deposited such box in bank 
 leaving the key with her, and she, during his 
 absence, exchanged part of them for U. S. 5-20 
 bonds, registered by his direction in the name of 
 both, — Held, that these facts were not conclu- 
 sive of a gift from him to her, so as to make a 
 determination to the contrary an error of law. 
 lb. 
 
 29. A voluntary conveyance from a husband 
 to his wife, intended to take effect as a gift in 
 presenti, though void at law, may be aided and 
 enforced in equity. Com. App., 1870, Hunt v. 
 Johnson, 44 N. Y. (5 Hand,) 27. 
 
 30. The relation of husband and wife, and the 
 duty of the former to furnish suitable support 
 for the latter, are a meritorious consideration, 
 sufficient in equity, except as against creditors, 
 to support such a deed; and the rule is not 
 limited to deeds expressed to be for the wife's 
 maintenance. lb. 
 
 31. A husband, free from debt, has a riglit to 
 settle property upon his wife, the purchase-money 
 for which lias been paid by himself, and, if done 
 withoat fraudulent design against his subsequent 
 creditors, it will vest in her a valid title thereto. 
 Ct. App., 1872, Curtis v. Fox, 47 N. Y. (2 Sick.) 
 299. S. P., Zimmerman v. Schoen/eldt, 3 Hun, 
 692. 
 
 32. Promissory note. Neither services ren- 
 dered by a wife, whether in the field or house- 
 hold, nor the meritorious consideration arising 
 from the moral obligation of the husband to 
 provide for her a reasonable maintenance, is a 
 sufficient consideration in equity to support a 
 note given by him to her, as against the heirs-at- 
 law of the husband. Ct. App., 1873, Whiiaker 
 V. Whitaker, 52 N. Y. (7 Sick.) 368. 
 
 33. Purchase by -wife. In respect to all 
 
 transactions on account of her separate estate a 
 wife is, in law, regarded as a feme sole, and she 
 can purchase a note or other property of her hus- 
 band, and acquire a valid title thereto, when 
 such purchase is in good faith and from her own 
 separate estate and on account thereof ; and 
 she can also sell to her husband, as well as pur- 
 chase from him. Sup. Ct., 1871, Sheldon v. 
 Clanci/, 42 How. 186; S. C, 61 Barb. 475. 
 
 34. Special contracts. Under the laws now 
 existing relative to the separate property of mar- 
 ried women, they may make special contracts 
 with their husbands, and let jobs of work, such 
 as building and the like, to them the same as to 
 strangers, and when this is done in good faith, 
 the husband alone is liable to workmen whom 
 he has employed on the work in his own name 
 and for his own benefit as contractor, and not on 
 the wife's credit. Such an arrangement should, 
 however, be regarded with suspicion, and be 
 rigorously scrutinized in case of non-payment of 
 such workmen by the husband. Sup. Ct., 1871, 
 Fairbanks V. Mothersell, 41 How. 274; S. C, 60 
 Barb. 406. 
 
 35. Tenancy in common. It seems that 
 husband and wife cannot form a legal co-part- 
 nership for the transaction of business, but they 
 may liold personal property as tenants in com- 
 mon. N. Y. Supr. Ct., 1873, Chambovet v. Cagney, 
 35 N. Y. Supr. (3 J. & Sp.) 474. 
 
 IV. The wipe's separate estate. 
 
 36. Wnat is. Where a marriage took place 
 prior to the act of 1848, for the protection of 
 married women, all the personal property which 
 the wife then owned or afterward acquired dur- 
 ing coverture, if reduced to possession by the 
 husband, immediately became his ; unless it was 
 secured to her by some agreement, either prior 
 or subsequent to the marriage. Sup. Ct., 1864, 
 Briggs v. Mitchell, 60 Barb. 288. 
 
 37. In such a case, the husband had a vested 
 interest in the personal property owned by the 
 wife at the time of the marriage, and his not re- 
 ducing it to possession until after that act .took 
 effect did not change his title to it. lb. , 
 
 38. A conveyance by a husband to his wife, 
 without consideration, of the property the legal 
 title to which was in him, is not sufficient to sus- 
 tain the claim of the wife that it is her separate 
 estate, as against antecedent creditors of tlie 
 husband. lb. 
 
 39. A post-nuptial settlement, might be upheld 
 in equity as between husband and wife, yet it 
 would be presumptively void as against such 
 creditors, and the wife could not set up her 
 equity therein as against them. lb. 
 
 40. Personal property belonging to the wife 
 before marriage, if reduced to actual possession 
 by the husband prior to the acts of 1848 and 
 1849, became his property ; but money or other 
 property afterward acquired by the wife is her 
 separate estate. N. Y. Supr. Ct., 1873, Hazewell 
 V. Coursen, 36 N. Y. Supr. (4 J. & Sp.) 459. 
 
 41. A husband who receives money belonging 
 to his wife, tliereby becomes her debtor, unless a 
 gift of it by her to him is shown ; and he may 
 recognize as a debt any money previously re- 
 ceived by him from his wife, and transfer to her 
 property in liquidation of the debt, and such 
 transfer will be valid as between them. lb. 
 
 42. If a husband takes a contract for the pur- 
 chase of lands in his own name, but for the 
 benefit of his wife, and the payments on it are 
 made with her money, the contract is in equity 
 hers. lb. 
 
378 
 
 HUSBAND AND WIFE. 
 
 48. Moneys belonging to a, woman before her 
 marriage in 1854, and afterward kept in her 
 possession and control, and moneys subsequently 
 earned by her in her sole and separate business, 
 are her separate property; and her title may 
 also be upheld to money received and reduced 
 to her actual use as the result of her savings 
 from the sale of milk and butter produced by 
 her husband's cows, and previously promised to 
 her by him. N. Y. Supr. Ct, 1874, Donovan v. 
 Sheridan, 37 N. Y.. Supr. (5 J. & Sp.) 256. 
 
 44. If the wife mortgages her separate property 
 for a debt of her husband, she is entitled to be 
 indemnified, and her interest in property con- 
 veyed to her for that purpose will be protected 
 against his creditors. lb. 
 
 45. Where a marriage was solemnized in 
 England, between citizens of that country, the 
 rights of the husband in the property of the 
 wife, at and aftei' the marriage, must, in the 
 absence of proof of any change in the laws of 
 that country, be held to be governed by the 
 common law as it existed at the time of the 
 separation of this country from the British 
 empire. Sup. Ct., 1861, Stokes v. Macken, 621 
 Barb. 145. S. P., King v. O'Brien, 33 N. Y. Supr. 
 (1 J. &Sp.) 49. 
 
 46- Although the husband may have permitted 
 the wife to retain possession of personal property 
 owned by her at the time of the marriage, or to 
 invest it in trade or in other property after their 
 removal to this country, his right to it, or to that 
 into which it had been converted, and also to her 
 earnings during coverture prior to the passage of 
 ch. 90, Laws of 1860, still continued, and such 
 property was the subject of levy and sale on 
 execution against him. lb. 
 
 47. A stock of goods bought in the name of 
 the wife, with money belonging to the wife 
 before marriage, or subsequently earned by her, 
 and the accretions and profits of the business 
 carried on by her in this State, and the new 
 stock purchased, except such as may be iden- 
 tified and proved to have been bought on her 
 credit and not paid for, or paid for with her 
 money with intent that the property should vest 
 in her, would also be deemed, as to his creditors, 
 to belohg to the husband. N. Y. Supr. Ct., 1871, 
 King v. O'Brien, 83 N. Y. Supr. (1 J. & Sp.) 49. 
 
 48. Property purchased here by a married 
 woman, with money belonging to her in Eng- 
 land prior to her marriage, and the title taken 
 in her own name, without objection on the part 
 of her husband, is hers, and will be protected 
 by a court of equity against her husband and 
 his creditors, and used for her support. Sup. 
 Ct., 1874, Welsh v. Cochran, 2 Hun, 675. 
 
 49. liarniiigs. Money earned by a married 
 woman for services rendered to third persons, is 
 her property, and not liable for her husband's 
 debts, if he assents to her performing the ser- 
 vices and waives his claim to the compensation. 
 Sup. Ct., 1875, Sheldon v. Britton, 5 Hun, 110. 
 
 60. But a debtor has no right, as against his 
 creditors, to give his services to his wife gra- 
 tuitously, when he has nothing else with which 
 to^jay his debts. lb. 
 
 61. Equitable right. The right of a married 
 woman, under a trust created by will, to the 
 income of real estate during life, is a mere 
 equitable right, which she cannot assign or 
 dispose of, and is not to be deemed her sep- 
 arate property, as to which she can sue or be 
 sued without joining her husband. Sup. Ct, Sp. 
 T., 1873, Bloodgood v. Mickle, 15 Abb. N. S. 103. 
 
 62. A policy of insurance on the life of a 
 husband, issued under ch. 80, Laws of 1840, and 
 
 the acts amendatory thereof, for the benefit of 
 his wife, or, in case of her death before her 
 husband, of her children, cannot be treated and 
 dealt with as her separate property, to be dis- 
 posed of or affected by her .contracts, and is not 
 assignable by her during the life of her hus- 
 band. Ct. App., Is75, Barry v. Equitable Life 
 Assurance So., 59 N. Y. (14 Sick.) 587 j Aff'g 
 S. C, 14 Abb. N. S. 385, n. See ch. 821, Laws of 
 1873. 
 
 53. Leased lands. If a married woman 
 leases lands, whether for money paid from her 
 separate estate or upon credit, such' lands to the 
 extent of her interest in them become her sep- 
 arate estate, and she can let them and enter into 
 any contract in reference to them as fully and 
 effectually as if she were a fetm sole. Com. 
 App., 1872, Prevot v. Lawrence, 51 N. Y. (6 Sick.) 
 219. 
 
 54. Loan to husband. Money given to a 
 married woman, either before or since the act 
 of 1848, becomes and remains her separate prop- 
 erty, unless, in the former case, the husband 
 chooses to avail himself of his marital fights ; 
 and if she loans such money to her husband, he 
 becomes in equity her debtor. Com. App., 1871, 
 Savage v. O'Neil, 44 N. Y. (5 Hand,) 298. 
 
 65. In such case the wife could enforce her 
 claim in equity though not at law ; but if her 
 husband pay it voluntarily, either in money or 
 in other property, such payment will vest in her 
 the legal title to what is paid. lb. 
 
 66. Charging separate estate. In order to 
 charge her separate estate'for a debt incurred 
 for the benefit of a third person, the wife must 
 manifest such intention in the contract itself, 
 and not elsewhere or otherwise, and such con- 
 tract should be in writing. Sup. Ct., 1871, 
 Shorter v. Nelson, 4 Lans. 114. 
 
 57. The estate of a married woman cannot be 
 charged for goods furnished for the husband's 
 individual benefit, although he was acting as 
 agent in respect to her real estate, and induced 
 the seller to credit her on account pf it ; or, even 
 though the wife told him while furnishing them, 
 that they were for her, and should be paid for 
 out of her separate estate. lb. 
 
 58. A married woman is not liable for the 
 price of goods sold and delivered to her hus- 
 band for his use, though upon her credit and in 
 the faith that, by her contract, her separate 
 estate had become liable therefor, unless the in- 
 tention to charge such estate is expressed in the 
 contract. Geover, Rapallo and Johhson, 33., 
 dissent. Ct. App., 1874, Manhattan Brass and 
 Manufacturing Company, 58 N. Y. (13 Sick.) 80. 
 
 59. A debt contracted by a married woman 
 does not become a specific lien, confined to any 
 portion or all of the separate estate she has at 
 the time, but may be enforced against all such 
 property she may have when satisfaction is de- 
 manded ; such a charge, therefore, may be 
 created without a writing. Ct. App., 1873, 
 Maxon v. Scott, 55 N. Y. (10 Sick.) 247. 
 
 60. A wife may charge her separate estate 
 for board furnished herself and husband at her 
 request, and on her account j and where such is 
 the case the law will not imply a promise by the 
 husband to pay for the same. lb. 
 
 61. A married woman may, if she pleases, 
 charge her property with her debt, but, unless 
 it benefits her estate, the intent to charge it 
 must be expressed as a part of the contract. A 
 mere promise by her to pay for goods bought by 
 her on credit is not sufficient. Sup. Ct., 1876, 
 Weir V. Groat, 4 Hun, 198. S. P., Baken v. 
 Harder, 4 Hun, 272. 
 
HUSBAND AND WIFE. 
 
 379 
 
 62. A note given by a married woman, which 
 states on its face that it is " for the benefit of 
 my separate estate, upon wliich I malie tliia 
 note a lien and charge," sufficiently expresses 
 her intent to charge her estate, and is binding 
 thereon. Sup. Ct., 1871, Merchants Bank v. 
 Scott, 69 Barb. 641. 
 
 63. Where a wife joins with her husband in 
 executing a note for the debt of the husband, 
 she is a mere surety ; but, if she therein ex- 
 pressly makes it a charge upon her separate 
 property, it is binding in law, and can be en- 
 forced against all her separate estate which she 
 may have at the time of the trial and j.udgment 
 (unless the charge is expressly limited to some 
 specific portion thereof), whether she had any 
 separate estate at the time of executing the 
 note or not. Sup. Ct., 1871, Todd v. Ames, 
 60 Barb. 454. 
 
 64. Contracts for the benefit of separate 
 estate. Where a married woman contracts a 
 debt for the direct benefit of her separate estate, ' 
 or for the benefit of herself on the credit of such 
 estate, the intention to charge her separate estate 
 need not be stated in the contract or instrument 
 evidencing the indebtedness. Sup. Ct., 1874, 
 Quassaic Nat. Bank of Newburgh v. Waddell, 
 1 Hun, 125. 
 
 65. Thus, where a married woman having 
 separate estate, which she managed herself, 
 borrowed money of a bank on her own notes, on 
 the credit of and for use in carrying on her 
 farm and paying interest on mortgages thereon, 
 and kept a bank account in her own name, and 
 upon a final settlement gave a promissory note 
 in the ordinary form, — Held, that the debt was 
 created for the benefit of her separate estate, 
 and she was liable thereon. lb. 
 
 66. The carrying on of a farm owned by a 
 married woman as a separate property is a 
 business, within the act of 1862 ; but if not so, 
 she is empowered by sees. 3 and 7 of that act to 
 do any act in reference to it as if she were un- 
 married, and may sue and be sued in relation 
 thereto as if sole. lb. 
 
 67. Where a married woman employs an 
 attorney to prosecute an action for a limited 
 divorce, and for alimony and support, and also 
 to set aside an anti-nuptial agreement made by 
 her with her husband, and afterward settles it 
 in violation of her agreement with lier attorney, 
 upon a provision being made for her support by 
 a fund placed in the hands of a trustee, she is 
 liable to him for such services, they being 
 rendered in creating a separate estate for her. 
 Sup. Ct., 1874, Owen v. Griffin, 2 Hun, 670. 
 
 68. A married woman, to whom furniture is 
 sold upon the faith of her representations that 
 she owns a house and is herself buying such fur- 
 niture for it, is liable therefor, the debt being 
 contracted for the benefit of her separate 
 estate. Sup. Ct., 1874, KeUy v. Long, 1 Hun, 
 714. 
 
 69. A married woman may bind her separate 
 estate by a promissory note, given for a sewing 
 machine purchased by her on her own account, 
 her husband being present at the time of the 
 purchase and refusing to jfurchase it or have 
 anything to do with it, and she promising to pay 
 for it, and an action can be maintained against 
 her thereon. Sup. Ct., 1875, Williamson v. 
 Dodge, 5 -Hun, 497. 
 
 70. Where a wife, owning separate real estate, 
 upon which she was building a house, let the 
 job of digging the cellar and laying the cellar 
 wall to her husband, and -paid him therefor, and 
 he employed a man with his team to do some 
 
 work in plowing, scraping and leveling off the 
 lot, without any knowledge on the part of the 
 employee as to the title of the property, or 
 agreement as to who was his employer or should 
 pay him, the wife knowing at the time that he 
 was doing such work there, — Held, that the law 
 would imply a promise on Iier part to pajf for 
 his services. Sup.Ct., 1871, Fairbanks v. Mother- 
 sell, 41 How. 274 ; S. C, 60 Barb. 406. 
 
 71. Rent. A married woman, since the en- 
 actment of ch. 90, Laws 1860, is liable for the 
 payment of rent reserved in a lease of premises 
 to herself ; the acquisition of a leasehold estate 
 being substantially a purchase of the term for 
 which the estate is rented, and the rent the pur- 
 chase price. Sup. Ct., 1874, Westervelt v. 
 Ackley, 2 Hun, 258. 
 
 72. Repairs. A married woman is liable for 
 articles furnished for the repair of a house 
 owned by her, at the request of her husband, 
 where it appears that he was her general agent 
 in reference to the repairs, and that she has 
 accepted the fruits of his acts by which the 
 value of her estate is increased. Sup. Ct., 1874, 
 Miller v. Hunt, 1 Hun, 491. 
 
 73. Separate business. The real intent of 
 the statutes relating to the separate property 
 and business of married women was to give re- 
 lief to women who, while competent to carry on 
 business, were unfortunate in their marital rela- 
 tions, and to secure to them the benefits of a 
 business separate from their husbands. Brook- 
 lyn City Ct., 1871, O'Leary v. Walter, 10 Abb. 
 N. S. 439. 
 
 74. Although a married woman may employ 
 her husband as her agent, yet, foriiim to act as 
 her unpaid servant while putting his creditors 
 at defiance, is a very suspicious circumstance, 
 lb. 
 
 75. The power given by statute to a married 
 woman to carry on a separate trade or business 
 includes the power to borrow money, and to 
 purchase upon credit, implements, fixtures and 
 real or personal estate necessary or convenient 
 for the purpose of commencing it, as well as the 
 power to contract debts in its prosecution after 
 it has been established. Ct. App., 1873, Frecking 
 V. Rolland, 53 N. Y. (8 Sick.) 422; Eev'g S. C, 
 33 N. Y. Supr. (1 J. & Sp.) 499. 
 
 76. A note given by her in sucli business is 
 valid, although it does not expressly declare 
 her intention to charge her separate estate. lb. 
 
 77. Boating. A married woman having a 
 separate estate, may build or purchase and own 
 a boat, and carry on the business of boating on 
 her separate account, as well as any other busi- 
 ness, there being nothing in the statute to pre- 
 vent her doing so. Sup. Ct, 1869, Whedon v. 
 Champlin, 69 Barb. 61. 
 
 78. In such business she may employ her hus- 
 band as master or captain, and creditors cannot 
 prevent his giving his labor to his wife for his 
 board, washing and clothing ; though, after he 
 has acquired property by his labor, if he invests 
 it in the name of his wife, or expends it to en- 
 hance the value of her property, a resulting 
 trust may arise in favor of his creditors in re- 
 spect thereto. lb. 
 
 79. Husband as agent. A married woman 
 may carry on a business on her sole and sepa- 
 rate account, and may employ her husband as 
 her agent therein ; and the fact that his ser- 
 vices are rendered gratuitously does not impair 
 her title to the property purchased for and em- 
 ployed in such business, or give his creditors 
 any claim thereon. Com. App., 1871, Abbey v. 
 Deyo, 44 N. Y. (6 Hand,) 343. 
 
380 
 
 HUSBAND AND WIFE. 
 
 80. The husband, in acting as agent for his 
 wife, is governed by no different rule from that 
 wliich the law prescribes for the observance of 
 any agent ; and no written order from her to 
 pay out sums of money on her account is ne- 
 cessary. N. Y. Supr. Ct., 1869, Smthwick v. 
 Southwick, 2 Sweeny, 234. 
 
 81. A married woman, owning separate es- 
 tate, who, after her husband had purchased 
 goods in her name, but without her knowledge 
 or authority, gave her own note therefor, se- 
 cured by a chattel mortgage of such goods, and 
 by the assignment of other mortgages, and sub- 
 sequently executed a mortgage on the goods to 
 a third party, must be held to have thereby as- 
 sumed the ownership of the gdods, and ratified 
 the acts of her husband, and made herself lia- 
 ble for the price. Sup. Ct., 1874, Fowler v. Trull, 
 1 Hun, 409. 
 
 82. Where it appears that she executed such 
 instruments voluntarily, without misrepresenta- 
 tion or fraud, she cannot avoid their effect on 
 the ground of her negligence or omission to 
 read them. lb. 
 
 83. To the extent and in the matters of busi- 
 ness in which they are by law permitted to en- 
 ^ge, married women owe the same duty to 
 those with whom they deal and may be bound 
 in the same manner as if they were feme sole. 
 Accordingly, where a married woman sold out 
 a business in which she had been engaged to 
 her husband, who subsequently carried it on at 
 a different place in the same city, — Hdd, that 
 until notice of the change was given to parties 
 who had previously dealt with the husband as 
 her agent, sli€ was liable to such parties for pur- 
 chases subsequently made by him and in good 
 faith charged to her as principal. Ct. App., 1878, 
 Bodine V. Killeen, 63 N. Y. (8 gick.) 93. 
 
 84. Estoppel. A married woman, as to mat- 
 ters concerning her separate estate, may be 
 bound by estoppel, in the same manner and by 
 tlie same means as a feme sole. Com. App., 1874, 
 Anderson v. Mather, 44 N. Y. (6 Hand,) 249. 
 
 85. Not bound, ivhen. The contracts and 
 promissory notes of a married woman, who had 
 no separate business, nor any separate estate 
 except an expectation of receiving money on 
 an ante-nuptial agreement upon her husband's 
 death, at the time they were made, are still 
 void at common law. Sup. Ct., 1873, Kinne v. 
 Kinne, 46 How. 61. 
 
 86. Notes or other obligations given by a 
 married woman, not in her separate business 
 nor for the benefit of her separate estate, nor 
 charged upon such estate, are void even in the 
 hands of a bona fide holder. Sup. Ct., 1873, Bo- 
 gert v. Gulick, 46 How. 886; S. C, 66 Barb. 822. 
 
 87. Where a married woman signed a note as 
 principal, her husband signing as surety, for a 
 loan negotiated by the husband, and she sent 
 her written order by her son requesting the 
 lender to send the money to her by him, but 
 the son having received the money delivered it 
 to his father, and it was not paid to her or used 
 for the benefit of her separate estate ; — Held, 
 that she was not liable thereon. Sup. Ct., 1873, 
 Prendergast v. Borst, 7 Lans. 489. 
 
 88. A note signed by a married woman as 
 surety for another, or one given in renewal 
 thereof, is not binding upon her, although she 
 has a separate estate, where there is nothing to 
 show a charge, or an intent to charge such es- 
 tate, or tliat her estate was benefited, or to show 
 that it was given upon the credit of such estate. 
 Sup. Ct., 1871, Hansee v. De Witt, 63 Barb. 53. 
 
 89. The indorsement of a promissory note by 
 
 a married woman, at the request of and aa 
 surety for her husband, not in any business car- 
 ried on by her, nor for the benefit of her sepa- 
 rate estate, and not containing any provision 
 charging such estate therewith, is void. N. Y. 
 Supr. Ct., 1873, Phillips v. Wicks, 45 How. 477 ; 
 S. C, 14 Abb. N. S. 380 ; 36 N. Y. Supr. (4 J. & 
 Sp.) 254. S. P. Hoffman y. Treadweil, 39 N. Y. 
 Supr. (7 J. & Sp.) 183. 
 
 90. A bond executed by a married woman 
 is of no validity, unless made in connection with 
 her separate business, or separate t state. Sup. 
 Ct., 1873, Kidd v. Gonwan, 65 Barb. 168. 
 
 91. A mortgage given by a married woman 
 may be valid, notwithstanding the invalidity of 
 the bond accompanying it, the consideration re- 
 cited therein being sufBcient to support it ; and 
 when a married woman gives a mortgage of 
 real estate, the court will presume that it is her 
 separate estate, until the contrary appears ; and 
 it seems that she will be estopped from denying 
 that it is such. lb. 
 
 92. Verbal promise. A special promise 
 made by a wife, in the lifetime of her husband, 
 to pay his debts, is not binding upon her unless 
 made in writing and in such form as to bind her 
 separate estate. Neither can she be held upon 
 such a promise, made after her husband's death. 
 Sup. Ct., 1878, Lennox y. Eldred, 65 Barb. 410. 
 
 93. Undertaking. A married woman can- 
 not bind either herself or her estate, by execut- 
 ing an undertaking on appeal in the ordinary 
 form ; and if she adds words declaring her in- 
 tent to bind her estate, the respondent is not 
 bound to accept it N. Y. Supr. Ct., 1874, Field 
 V. Leavitt, 37 N. Y. Supr. (6 J. & Sp.) 537. 
 
 V. ACTIOBTB BY AND AGAINST HUSBAND AND 
 WIFE, OK EITHER OF THEM. 
 
 94. By husband. In the absence of statutes 
 varying the law, wearing apparel and personal 
 ornaments purchased by a husband for the use 
 of his wife, will be deemed her paraphernalia, 
 and as such subject to the control of the hus- 
 band ; and he alone can sue for a conversion of 
 them. Ct. App., 1872, McCormick v. Penn. Cen- 
 tral E. R. Co., 49 N. Y. (4 Sick.) 308. 
 
 95. As to such articles procured for the wife 
 before its passage, an act declaring that the 
 property of a married woman belonging to her 
 as her sole and separate property, shall remain 
 such, and that property acquired during cover- 
 ture from any person other than her husband 
 shall be and, remain her sole and separate prop- 
 erty, does not change their character or affect 
 Ills right to recover. lb. 
 
 96. Between husband Eind -wife. The acts 
 of 1848 and 1849, for the protection of married 
 women, were intended solely to enfranchise 
 married women and to protect their property, 
 and were not intended to confer any additional 
 rights or privileges upon the husband. He can- 
 not, therefore, now maintain an action at law 
 against his wife, to recover pay for personal 
 services rendered by him to her, any more than 
 he could before. 'Sup. Ct., 1872, Perkins y. Per- 
 kins, 7 Lans. 19 ; S. C, 62 Barb. 531. 
 
 97. The unity of person created by the mar- 
 riage contract between husband and wife, has 
 been no further severed than the statutes, in 
 express terms or by necessary implication, liave 
 affected tliat purpose ; the duty of the husband 
 to labor and provide support for the wife has 
 not been changed, nor have the statutes confer^ 
 red the right upon husband and wife to make 
 contracts between themselves to that end. lb 
 
HUSBAND AND WIPE. 
 
 381 
 
 98. A wife can maintain an action against her 
 husband, on a note given by him to her before 
 marriage, in consideration of her promise to 
 marry ; and it is immaterial whether the form 
 of the action be at law or in equity, if the facts 
 entitling her to the relief demanded are stated, 
 it being the duty of the court to afford the re- 
 lief without regard to the name of the action. 
 Com. App., 1873, Wright v. Wright, 54 N. Y. (9 
 Sick.) 437 ; Afl'g S. C, 59 Barb. 505. 
 
 99. A married woman, owning, as co-tenant 
 with her husband, an undivided half of real 
 estate, can maintain an action for partition 
 against him. Ct. App., 1872, Moore v. Moore, 47 
 N. Y. (2 Sick.) 467. 
 
 100. A wife may maintain an action against 
 her husband to recover possession of real estate 
 belonging to her, from which she is excluded by 
 him. Sup. Ct., 1871, Minier v. Minier', 4 Lans. 
 421. 
 
 101. Where a wife entrusts her husband with 
 money to purchase real estate in her name, and 
 he makes such purchase, expending no more 
 for the purpose than the sum received, the title 
 becomes hers in her own right and is not derived 
 from her husband, even though he may not have 
 paid for it with the precise money received, and 
 she can maintain an action against him in rela- 
 tion thereto. lb. 
 
 102. By husband and vrife. In an action 
 for a debt of tlie wife contracted before marriage 
 the husband may be joined witli her as defend- 
 ant, under the provisions of eh. 576, Laws 1853, 
 but the judgment in such action will only bind 
 her separate property, and the execution must 
 issue against tliat alone. Sup. Ct., 1873, Lennox 
 v. Eldred. 65 Barb. 410. 
 
 103. Wliere a husband and wife are entitled 
 to an estate in land so long as they or either of 
 them shall live, they must join in an action for 
 the use and occupation thereof and for waste 
 committed on the premises. Sup. Ct., 1874, 
 Freeman v. Barber, 1 Hun, 483. 
 
 104. Even though, after a judgment of the 
 General Term, affirmed by the Court of Appeals, 
 determining that tliey are entitled to such joint 
 interest, the Special Terra orders the premises 
 conveyed to the wife alone for life, she cannot 
 maintain such action alone. lb. 
 
 105. Against husband and vhie. In an 
 action against a husband and wife to set aside 
 as fraudulent a conveyance of property to the 
 wife, where the title of the wife proves to be valid, 
 the plaintiff cannot, in case of her death pending 
 the' action, have judgment for a sale of the 
 husband's interest thereby acquired and an ap- 
 plication of the proceeds to tlie payment of his 
 claim. Ct. App., 1872, Curtis v. Fox, 47 N. Y. 
 (2 Sick.) 299. 
 
 106. By vrtfe. A married woman, living with 
 and keeping house for her husband, cannot 
 maintain an action for services rendered in tak- 
 ing care of a sick person at another house. Her 
 services belong to her husband, and he alone 
 can maintain the action. Boakdmak, J., dissents. 
 Sup. Ct., 1875, Bean v, Kiah, 4 Hun, 171. 
 
 107. A married woman residing in another 
 State and holding property there to her own, 
 separate use, when bringing an action in this 
 State for an injury to such property, is governed 
 by the Lex fori, and may sue in her own name. 
 Ct. App., 1873, Stoneman v. Erie Railway Com- 
 pany, 52 N. Y. (7 Sick.) 429. 
 
 108. As between a wife and any other than 
 the State, or its agents or delegates exercising 
 the right of eminent domain, an inchoate right 
 of dower in lands is a subsisting and valuable in- 
 
 terest, which will be protected and preserved to 
 her. Accordingly, where a husband and wife 
 were induced by fraud to execute a conveyance 
 of lands belonging to the former, — Seld, that the 
 wife by virtue of her dower interest, might main- 
 tain an action for the fraud. Ct. App., 1873, 
 Simar v. Canaday, 53 N. Y. (8 Sick.) 298. 
 
 109. Where real estate, the consideration for 
 which was paid by a wife, was conveyed by deed 
 absolute to the husband, with intent tliat he 
 should hold for her benefit, and he, in further- 
 ance of the intent, at her request conveyed to a 
 third party for the same purpose ; she may 
 maintain an action to enforce the trust resulting 
 to her thereby, although the original considera- 
 tion was paid by her prior to the acts of 1848-9. 
 Ct. App., 1872, Foote v. Bryant, 47 N. Y. (2 Sick.) 
 544. 
 
 110. A married woman can maintain an action 
 against a firm of wliich her husband is a member, 
 to recover payment for services rendered by her 
 to such firm at her husband's request. Sup. Ct., 
 1870, Adams v. Curtis, 4 Lans. 164. 
 
 111. Whether a married woman may not in 
 any case sue her husband to recover her prop- 
 erty, or to enforce and collect claims against 
 him, considered, lb. 
 
 112. In an action by a married woman for per- 
 sonal injuries, she is not entitled to recover eon- 
 sequential damages resulting from her inability 
 to labor, unless actually engaged in some busi- 
 ness or service in which she would, but for the 
 injury, have earned something for her separate 
 benefit, as otherwise, her services belong to her 
 husband. Ct. App., 1872, Filer v. New York 
 Central R. R. Co., 49 N. Y. (4 Sick.) 47. 
 
 113. Chap. 172, Laws of 1862, amendatory of 
 the act of 1860 relating to married women, does 
 not enlarge the rights of the wife in his respect. 
 lb. 
 
 114. Against ■wife. In order to recover 
 against a married woman for goods sold and 
 delivered to her, it must appear, not only that she 
 has a separate estate or carries on a business or 
 trade on her separate account, but also, either — 
 ist, that she contracted the debt as the agent of 
 her husband for her own or her children's sup- 
 port ; 2d, that the goods were sold to her with 
 reference to her separate trade or business ; 3d, 
 that she intended to charge her separate estate ; 
 or, 4th, that the consideration went to benefit 
 her estate. N. Y. C. P., 1870, Wood v. Sanchey, 
 3 Daly, 197. 
 
 115. Where a bill of lumber and materials, 
 contracted for by the husband but used in the 
 improvement of his wife's separate estate, were 
 charged to him by the vendor, who took his in- 
 dividual notes therefor, receipting the account 
 and using the notes, which were taken up by 
 him at maturity ; but it appeared that the hus- 
 band had entire control of his wife's property, that 
 she knew of the improvements when being made, 
 and that she promised to pay the account and 
 had paid part of it; and the vendor testified that 
 the husband proposed to purchase as agent of his 
 wife, that he sold him as such, on the credit of 
 her estate, and would not have trusted him in- 
 dividually, and that the notes were not taken as 
 payment, but merely as accommodation paper, 
 and were returned to the husband when taken 
 up, — Held, sufficient to sustain a finding and 
 judgment against the wife. Com. App., 1873, 
 Garretson v. Seaman, 54 N. Y. (9 Sick.) 652. 
 
 116. Where a husband, being thereto author- 
 ized by his wife, employed a third party as fore- 
 man upon some houses she was erecting, but 
 without disclosing his agency or the fact of his 
 
382 HUSBAND AND WIFE— IDIOTS AND LUNATICS. 
 
 wife's ownership, and such third party kept his 
 accounts, both for the worlt done under such 
 employment and for work done for the husband 
 upon liouses in course of erection by him, against 
 the husband, making no distinction in the charges 
 as to the houses he worked upon, — Held, that 
 the wife was liable only for the work and dis- 
 bursements upon lier own houses, and that her 
 liability was not changed by the fact that some 
 of the houses built by her husband were subse- 
 quently conveyed by him to her. Com. App., 
 1873, Newell v. Roberts, 64 N. Y. (9 Sick.) 677. 
 
 117. A married woman who carries on a busi- 
 ness for profit, and employs her husband as her 
 agent to manage it, is legally liable for the acts 
 of such agent, the same as though the marital 
 relation did not exist. N. Y. Supr. Ct., 1874, 
 
 Wicks V. Hatch, 38 N. Y. Supr. (6 J. & Sp.) 95. 
 
 118. A married woman who embarks in trade 
 on her sole and separate account, assumes the 
 ordinary hazards incident to it, and is liable upon 
 a check in the hands of a bona fide holder for 
 value, though drawn without consideration, by 
 an agent who was authorized to do so only in 
 the regular course of business. N. Y. C. P., 1872, 
 Lewis V. Woods, 4 Daly, 241. 
 
 119. Where an action is brought against a mar- 
 ried woman as sole defendant, which may, in its 
 result, create a charge upon her separate estate, 
 and she employs an attorney to defend the same, 
 there is a presumption of an intent that he 
 shall be paid from her separate estate ; and an 
 action will he to recover the value of the ser- 
 vices rendered, and to have the same adjudged 
 a lien upon such estate. Ct. App., 1873, Blanke 
 V. Bryant, 55 N. Y. (10 Sick.) 649. 
 
 120. Where a married woman owning one- 
 half of the real estate and stock in trade of a 
 firm in which she was a partner, acting therein 
 through her husband as her agent, bought out her 
 partner's interest both in the real estate and in 
 the other property ; and her husband, with her 
 consent, took charge of the business and proj)- 
 erty, conducting the former in his own name 
 until he failed, when the personal property was 
 assigned by him, without objection from her, 
 for the benefit of his creditors, — Held, that these 
 facts would not support a finding that the busi- 
 ness, after dissolution, was the wife's, conducted 
 by the husband as her agent ; and that no action 
 would lie against her for debts contracted there- 
 in. Ct. App., 1871, Hamilton v. Douglass, 46 N. 
 Y. (1 Sick.) 218. 
 
 121. The circumstance that the husband made 
 some expenditures upon the wife's real estate, 
 used in the business, will not affect her liability. 
 The creditors could complain of them only in case 
 they exceeded the value of the personal estate 
 received from the wife, and their remedy in that 
 event would be by creditor's bill for an account- 
 ing, lb. 
 
 122. A married woman apparently carrying on 
 a separate business, although her husband be a 
 dormant partner, cannot interpose this as a de- 
 fense to an action against her by one who dealt 
 with her in ignorance of the partnership. Ct. 
 App., 1874, Scott v. Conway, 58 N. Y. (13 Sick.) 
 619. 
 
 123. Coverture is no bar to an action against 
 a married woman having separate property to 
 enforce the specific performance of a contract 
 for the purchase of lands. Com. App., 1872, 
 Hinckley v. Smith, 51 N. Y. (6 Sick.) 21. 
 
 124. A wife alone is responsible for trespasses 
 committed by cattle belonging to her separate 
 estate ; and an action may be maintained there- 
 for against her alone, without , joining her hus- 
 
 band. Ct. App., 1871, Rowe y. Smith, 45 N. Y 
 (0 Hand,) 230. 
 
 125.»An action against a married woman, in 
 reference to or arising out of her separate busi- 
 ness, is to be brought against her as it would be 
 against any other individual, and the judgment, 
 if any, will be a personal one, to be enforced 
 against any property she may have liable to exe- 
 cution, as in ordinary cases. Sup. Ct., 1871, 
 Foster v. Conger, 42 How. 176 ; S. C, 61 Barb. 
 146. 
 
 126. The liability, in such a case, is personal, 
 and she alone is responsible under the statiTtes of 
 1860-1862, and it makes no difference as to sus- 
 taining an action against herfor a debt contracted 
 in her separate business, whether she had at the 
 time any separate property or not. lb. 
 
 .IDIOTS AND LUNATICS. 
 See Ch. 446, laws or 1874. 
 
 1. Control of court over. A court of this 
 State, e. g. the New York Common Pleas, — 
 having committed to it by statute the' care and 
 custody of the person and estate of lunatics and 
 persons of unsound mind within the county 
 (Code sec. 30 ; Laws 1854, p. 464, sec. 6), has 
 the right and it is its duty to do in respect to 
 either whatever is most conducive to the interests 
 of the lunatic himself ; to see, in respect to his 
 person that he is maintained as comfortably as 
 his unfortunate situation will admit of and his 
 pecuniary resources will allow, and that every 
 thing is done that can be by care, skill and 
 medical treatment to promote his general health, 
 and his restoration to reason. N. Y. C. P., Sp. T., 
 1871, Parsee Merchant's Case, 11 Abb. N. S. 209 ; 
 S. C, sub. nom.. In matter of Colah, 3 Daly, 529. 
 
 2. The court has power to direct the removal 
 of an insane foreigner, who is within its juris- 
 diction, to his native country, when necessary 
 for his benefit as a sanitary measure ; and to 
 appoint a temporary committee to accompany 
 him thither, under the instructions of the court, 
 lb. 
 
 3. The fact that the court will have no power 
 over the committee after he has left its jurisdic- 
 tion, is no reason for keeping the lunatic here, 
 if that would prove prejudicial to his health. lb. 
 
 4. The court should exercise its power over 
 the person of a lunatic with reference to jiis 
 welfare, rather than that of persons concerned 
 in the succession to his estate, and should not 
 be deterred by the probable expense from direct- 
 ing to be done whatever appears to be most 
 advantageous to him. lb. 
 
 5. In this case, a Parsee native of Bombay, 
 found in the city of New York in a state of in- 
 sanity, and having with him considerable prop- 
 erty, was on petition of his family in Bombay, 
 and on tlie opinion of competent physicians in 
 favor thereof, ordered to be sent to Bombay in 
 charge of a special committee and a competent 
 nurse, who were instructed to notify the wife 
 and relatives immediately on arrival there, and 
 if none of them should apply to the proper tri- 
 bunal at Bombay for the appointment of a com- 
 mittee, then to make such application, and to 
 bring back evidence of the appointment, &e., 
 or in case of the death of the lunatic on the 
 journey, to return and report. lb. 
 
 6. In such a case, >the expenses and also a 
 proper compensation for the personal services of 
 the committee should be paid out of the estate 
 
IMPRISONMENT FOR DEBT— INFANTS, 
 
 383 
 
 in his hands ; the restriction of the compensa- 
 tion to the rates allowed to executors, &c., not 
 being applicable to such an exceptional case, 
 lb. 
 
 7. Committee. The appointment of, a 
 stranger to be the committee of the person and 
 estate of an idiot or lunatic, without notifying 
 those who, as next of kin, wiU succeed such 
 idiot, as heir, is not irregular, and will not be set 
 aside on their motion unless for good cause 
 shown. N. y. C. P., 1874, Inmatter of Owens, 47 
 How. 150. 
 
 8. Po'weT of committee. The committee 
 of the estate of a lunatic may release a portion 
 of the premises covered by a mortgage, taken 
 by him to secure a loan of a portion of the lun- 
 atic's estate from the heir thereof, without first 
 applying to the court for permission to do so. 
 Sup. Ct., 1876, Pickersgill v. Read, 5 Hun, 170. 
 
 9. Leave to sue the committee of a luna- 
 tic slionld be granted, wlien the applicant pre- 
 sents a case which, if proved, would entitle him 
 to relief in equity. Sup. Ct., 1874, In matter of 
 Wing, 2 Hun, 671. 
 
 10. So held, where it appeared that the peti- 
 tioner was the wife of the lunatic, and was by 
 order of the court to be allowed access to her 
 husband once a week, and the committee liad 
 removed him from the State. lb. 
 
 11. Estate liable for necessaries, wlien. 
 Where a lunatic continued to reside with his 
 family after he had been declared so and a com- 
 mittee of his estate had been appointed, and 
 parties ignorant of sucli appointment furnished 
 him groceries which were necessary for liim and 
 were used in his family ; — Held, that the bill 
 therefor should be paid out of his estate. Sup. 
 Ct., 1874, Shaper v. Wing, 2 Hun, 671. 
 
 12. Costs. The costs in proceedings to have 
 a person declared a lunatic, or to traverse or 
 supersede the commission, rest in the sound dis- 
 cretion of the court, and will not be granted 
 against the estate of the lunatic, unless the pro- 
 ceedings were instituted for hi« benefit and pros- 
 ecuted fairly and in good faith. Sup. Ct., 1876, 
 Bechvith, In matter of, 3 Hun, 443. 
 
 IMPEISONMENT FOB DEBT. 
 See Inbolyeni debtok. 
 
 INDEMNITY. 
 See Boims. 
 
 INDIANS. 
 
 1. Reservation, highways in. The State 
 has power to construct a highway within the 
 Cattaraugus Indian Reservation. Sup. Ct., 1874, 
 France v. Erie By. Co., 2 Hun, 513. 
 
 2. Timber on reservation. Under the 
 laws relating to the Cattaraugus Reservation 
 (cli. 365 of 1847 ; ch. 294 of 1859 ; oh. 455 of 
 1873), the purchase from members of the Seneca 
 nation and tribe, occupying lands inclosed by 
 good and substantial fences in said reservation, 
 of timber growing on their lands, and cutting 
 and removing the same therefrom, is illegal. 
 Sup. Ct., 1875, Seneca Nation of Indians t. Ham- 
 mond, 4 Hun, 417. 
 
 INDICTMENT. 
 See Ckiminal law. 
 
 INDORSEMENT. 
 See Bills and notbs. 
 
 INEANTS. 
 
 1. Custody. Where a father shows himself 
 so indifferent as to the destination or employ- 
 ment of his daughter, 18 years of age, or 
 to the influences or examples to which she may 
 be exposed, as to plaoe her with a woman of 
 notoriously bad character, having an opportu- 
 nity easily to inform himself as to such charac- 
 ter, she will not, after being removed from such 
 custody by the proper authorities, be restored to 
 the custody of the father, but may be placed by 
 order of the court in a public institution where 
 her morals will be properly cared for. Sup. Ct., 
 1874, In matter of Clifton, 47 How. 172. 
 
 2. The peculiar practices and doctrines of the 
 Shaker communities are not regarded by the 
 courts as sufficient ground for taking from them 
 the custody of infants, bound to them under the 
 forms of law and with the consent of the proper 
 authorities. Ct. App., 1870, People ex ret. Bar- 
 bour V. Gates, 43 N. Y. (4 Hand,) 40. 
 
 3. Ungovernable. Tlie oath of the mother 
 of a child before a magistrate, that her child 
 absents herself from liome without her consent, 
 refuses to obey her lawful commands, and is bad 
 and ungovernable beyond her years, is sufficient, 
 under subd. 2, sec. 5, ch. 448, Laws 1863, to au- 
 thorize the magistrate to commit the child to 
 the N. Y. Catholic Protectorate, chartered by 
 that act. Sup. Ct., gp. T., 1872, Matter of Barre, 
 14 Abb. N. S. 426. 
 
 4. An error in naming the institution to which 
 the child is committed, may be cured by a fresh 
 proceeding and commitment. lb. 
 
 5. That institution has no power to bind out 
 children committed to its care, except to learn 
 some proper trade or employment ; and an in- 
 denture which simply binds the master to feed, 
 clothe and educate the child, and cause it to 
 receive religious instruction, without any obli- 
 gation to teach it any trade or employment, is 
 void. lb. 
 
 6. Contracts of. A mortgage of personal 
 property given by an infant, is voidable, at any 
 time before he becomes of age and within a 
 reasonable time thereafter, by any act which 
 evinces that purpose ; and an unconditional sale 
 of tlie property to another is such an act, and 
 effectually avoids the mortgage. Ct. App., 1872, 
 Chapin v. -Slmfer, 49 N. Y. (4 Sick.) 407. 
 
 7. False representations made by an infant to 
 induce another person to enter into a contract 
 with him are not sufficient to charge him with a 
 legal liability upon tlie contract. Com. App., 
 1873> Studwell v. Shapter, 54 N. Y. (9 Sick.) 249. 
 
 8. Ratification. A contract by an infant 
 for goods, not necessaries, may be ratified by 
 him after majority, by a parol acknowledgment 
 of the justness of the account, and promise to 
 pay therefor, and a cause of action therefor does 
 not arise until such ratification. Sup. Ct., 1876, 
 Halsey v. Reid, 4 Hun, 777. 
 
 9. The retention by an infant for several years 
 after becoming of age, of the proceeds of real 
 
384 
 
 INHABITANT— INJUNCTION. 
 
 estate purchased and afterward sold by her, — 
 Held, no ratification, sucli as would support an 
 action upon an obligation incurred by her at the 
 time of the purchase. Ct. App., 1870, Walsh v. 
 Powers, 43 N. Y. (4 Hand,) 23. 
 
 10. The appearance of such infant by attorney 
 in an action to foreclose a mortgage on the prem- 
 ises purchased, which she had assumed to pay, 
 would not amount to a ratification. lb. 
 
 11. Liability for torts. An infant is liable 
 for fraud or conversion, and may be arrested in 
 an action therefor. Sup. Ct., Sp. T., 1873, Schu- 
 nemann v. Paradise, 46 How. 426. 
 
 12. An infant is not liable in an action of tres- 
 pass for an injury done to a horse hired by him, 
 unless such injury was caused by some positive, 
 wilful and intentional act on his' part. If it 
 occurred in the act of driving the animal, 
 through his unskilfulness and want of knowl- 
 edge, discretion and judgment, or a bare neglect 
 to protect it from injury or return it at the time 
 agreed upon, he is not liable in such action. 
 Sup. Ct., 1874, Moore v. Eastman, 1 Hun, 678. 
 
 13. Laches of. The failure of an infant to 
 perform conditions subsequent, annexed to an 
 estate granted either to his ancestor or himself, 
 will bar his right as effectually as in case of an 
 adult. Ct. App., 1870, Havens v. Patterson, 43 
 N. Y. (4 Hand,) 218. 
 
 14. Alienation of land. In order to alienate 
 lands of an infant, the proceedings prescribed by 
 the statutes (2 B. S. 194 ; 2 Edm. Stats. 202), 
 must be followed. Sup. Ct., 1871, Battell v. 
 Burrill, 10 Abb. 1^^. S. 97 ; AfE'd, 50 N. Y. (5 
 Sick.) 13. 
 
 15. The court cannot order or direct a guar- 
 dian of an infant to consent to the abandonment 
 of a strip of land left after the appropriation of 
 the remainder of the lot for a street, and the 
 execution of a release or quit-claim therefor, 
 without compUance with those provisions, and 
 such a quit-claim will convey no title. lb. 
 
 EmABITAUT. 
 See DoMicii.. 
 
 INHERITANCE. 
 
 See Descent. 
 
 Ai to evidence of succession, see ch. 137, Lates of 1874, 
 
 INJUNCTION. 
 
 I. Ik QEiTEiux 884 
 
 II. When mat be okanted 385 
 
 m. When will not be gkanted 889 
 
 I. In qenebal. 
 
 1. Parties. An injunction ought not to be 
 granted to restrain city authorities from seUing 
 a public square, upon the application of an indi- 
 vidual tax-payer, having no private interest in 
 such square more than have the citizens gener- 
 ally. Sup. Ct., 1878, Tiffi v. City of Buffalo, 65 
 Barb. 460. 
 
 2. In an action to restrain the Atlantic and 
 Pacific E. E. Co., from paying the rent reserved 
 in a lease made to it by the South Pacific E. E. 
 
 Co., of Missouri, such rent being an entire sum 
 for the use of the road constructed and operated 
 by the latter company between Franklin and St. 
 Louis, and five other railroads previously leased 
 by it, — Held, that the defendant company had 
 the power under its charter and under the laws 
 of Missouri to lease the road from Franklin to 
 St. Louis, but not the other roads, yet the rent 
 being entire for all those roads, the payment 
 thereof for the five roads could not be enjoined 
 without the presence of the South Pac. E. E. Co. 
 as a party, as that would in effect defeat its 
 whole claim for rent. Sup. Ct., Sp. T., 1873, 
 Dinsmore v. Atlantic and Pacific R. R. Co., 46 
 How. 193. 
 
 3. The general and ordinary business of 
 a corporation, which under the provisions of 
 sec. 224 of the Code,' and ch. 151, Laws 1870 
 (7 Edm. Stats. 661), cannot be suspended by 
 injunction, unless granted by the court and on 
 eight days' notice, is the business which the cor- 
 poration was created to carry on, and includes, 
 in case of a railroad company, a contract for 
 building and equipping its road, and the perform- 
 ance by directors of their ofScial duties. Sup. 
 Ct, Sp. T., 1872, Toum of Middletown v. Rondout 
 and Oswego R. R. Co., 43 How. 144; S. C, 12 
 Abb. N. S. 276. 
 
 4. Laches. A delay for nearly a year to act 
 or claim the right to act as trustee of a corpora- 
 tion, after a party's place as such trustee has 
 been declared vacant under a provision of tlie 
 charter, is sufficient ground for denying a temp- 
 orary injunction to restrain the board of trustees 
 from preventing his acting, or filling his place. 
 Sup. Ct., 1875, Van Raust v. N. Y. College of 
 Veterinary Surgeons, 4 Hun, 620. S. P., Bergh 
 v. Busteed, 4 ifun, 660. 
 
 5. Property affected. An injunction order 
 affects only property received, earned, or due 
 before the making of the order. N. Y. C. P., Sp. 
 T., 1872, Atkinson v. Sewine,4^ How. 84 ; S. C, 
 11 Abb. N. S.384. 
 
 6. Money borrowed by a judgment debtor for 
 a particular purpose, after the making of the 
 injunction order, but before its service upon him, 
 is not bound thereby ; and the debtor is not 
 liable for a contempt for paying out such money 
 after the service of the order. lb. 
 
 7. Breach. An injunction restraining John S. 
 Devlin, from using the firm name " Devlin & 
 Co." in any form or manner, and confining his 
 use of his own name in signs, advertisements, 
 &c., to his own proper christian, middle and 
 surname conjoined, without monograms, signs 
 or other devices tending to mislead, &c., is vio- 
 lated by tlie use of a sign containing the name 
 J. S. Devlin so arranged as to mislead the public. 
 Sup. Ct., 1875, Devlin v. Devlin, 4 Hun, 651. 
 
 8. Motion to continue. A county judge has 
 no power to hear and decide a contested motion 
 to continue an injunction order in a cause pend- 
 ing in the Supreme COurt. Sup. Ct., Sp. T., 1872, 
 Town of Rochester v. Davis, 12 Abb. N. S. 270. 
 
 9. Dissolution. An injunction order granted 
 ex parte must, under Sup. Ct. rule 94, contain 
 order to show cause before a proper forum, 
 within 10 days, why it should not be continued, 
 and one which does not fix the time for showing 
 cause within such 10 davs, should be declared void. 
 Sup. Ct., 1872, Town ^Middletown v. Bxmdottii^ 
 Oswego R. R. Co., 43 How. 481. 
 
 10. An injunction order granted upon a com- 
 plaint, most of the material allegations of which 
 are upon information and belief, and all of them 
 are met by more positive denials, should be dis- 
 solved for that reason. lb. 
 
INJUNCTION. 
 
 385 
 
 11. An injunction cannot be sustained, in a 
 case where all the facts alleged in the com- 
 plaint on which the equities thereof are founded 
 are positively denied by the answer, especially 
 where it appears to be extremely doubtful 
 whether the plaintiff will ultimately be entitled 
 to the relief demanded. N. Y. C. P., 1871, 
 Steinberg v. O'Conner, 42 How. 52. 
 
 12. A motion to dissolve an injunction 
 may, under sec. 225 of the Code, be made before 
 answer in the action ; the use of the answer as 
 an affidavit on the motion to dissolve being 
 thereby rendered unnecessary. Sup. Ct, Sp. T., 
 1872, Toivn of Middletown v. Rondout ^ Oswego 
 R. R. Co., 43 How. 144 ; S. C, 12 Abb. N. S. 276. 
 
 18. A motion to vacate an injunction can be 
 made on notice only before a judge of the 
 court. A county judge cannot hear a contested 
 motion as to an injunction ; and, therefore, he 
 cannot, on granting an injunction ex parte, add 
 to it an order, returnable before himself, to 
 show cause why the injunction should not be 
 continued, that being equivalent to a short 
 notice of motion for that purpose, which would 
 bring up the merits t)ie same as a motion to 
 vacate. lb. Aff'd, S. C, 43 How. 481. 
 
 14. If a county judge does grant an order 
 restraining the defendants until further order of 
 the court, and adds an order to show cause 
 before liim at a specified day why the injunc- 
 tion should not be continued, and the parties do 
 not appear on that day, and no further order is 
 then made, the injunction will then expire. lb. 
 
 15. Affidavits. Where the affidavits of the 
 defendant, used on a motion to dissolve an in- 
 junction, set up new matter, as explanatory, or 
 in the nature of confession and avoidance, the 
 plaintiff may read new affidavits in answer to 
 such matter. Sup. Ct., Sp. T., 1871, Society for the 
 Reformation of Juvenile Delinquents v. Diers, 10 
 Abb. N. S. 216 ; S, C, 60 Barb. 152. 
 
 n. When mat be granted. 
 
 16. Breach of covenant. An injunction 
 will lie to restrain a grantee of land, or those 
 claiming under him, from building upon a certain 
 strip thereof, in violation of his covenant in the 
 deed conveying such land to him, and to the in- 
 jury of the grantor or liis assigns. Brooklyn 
 City Ct., Sp. T., 1873, Phoenix Ins. Go. v. Conti- 
 nental Ins. Co,, 14 Abb. N. S. 266. 
 
 17. Privity of estate is not necessary to enable 
 one of the parties to an agreement between 
 adjoining owners of lands, whereby they 
 mutually covenanted for themselves, their heirs 
 and assigns, not to erect upon their respective 
 lands any but a specified class of buildings, nor 
 to use them for purposes of trade, to maintain an 
 action against the grantee of the other party, 
 having notice of sucli covenant, to restrain him 
 from breaking the same. N. Y. Supr. Ct., 1875, 
 Trustees of Columbia College v. Lynch, 39 N. Y. 
 Supr. n J. & Sp.) 372; Eev'g S. C, 47 How. 273. 
 
 18. Such an action cannot be sustained where 
 the plaintiff has suffered no damage ; nor where 
 the plaintiff has allowed the defendant to ex- 
 pend money in buildings, in violation of the 
 covenant, without interference ; nor where a 
 change of circumstances in the parties and the 
 subject matter of the covenant would render it 
 inequitable to enforce it. lb. 
 
 19. Nor will a court of equity enforce the 
 covenant, where, in consequences of changes in 
 respect to trade and business in the city where 
 the property is situated, it would be injurious to 
 the interests of the public to do so. lb. 
 
 ' 25 
 
 20. — of contract. An actor who has con- 
 tracted to perform at a particular theatre, at a 
 fixed compensation for a certain time, and not to 
 perform elsewhere during that time, may be re- 
 strained by injunction from carrying out an 
 agreement subsequently made, to perform at 
 another theatre before the expiration of his con- 
 tract, where there is no demand in the com- 
 plaint for specific performance of tlie affirmative 
 covenant. N. Y. C. P., Sp. T., 1871, Hai/es v. 
 Willio, 11 Abb. N. S. 167. 
 
 21. An injunction may properly be granted to 
 restrain one who has contracted to render per- 
 sonal services to the plaintiff, and not to render 
 like services to any other person during tlie 
 term of such employment, from a breach of tlie 
 negative clause of the agreement, when such 
 breach will cause irreparable damage to the em- 
 ployer. N. Y. Supr. Ct, 1874, Daly v. Smith, 38 
 N. Y. Supr. (6 J. & Sp.) 168 ; S. C, 49 How. 
 150. 
 
 22. Where a theatrical manager made a sea- 
 son contract with a distinguished actress, who 
 would be a great artistic acquisition, both in 
 name and dramatic service, to any theatre, to 
 render personal services to ]iim, and not to act 
 elsewliere without his permission, she fully 
 understanding tliat his object was to secure her 
 service and name, and to prevent a rival mana- 
 ger from securing her, and publicly announced 
 her as a member of his company ; — Held, that a 
 breach of such contract by her engagement to 
 act at a rival theatre during the season, and tlie 
 public announcement thereof, presented a case 
 of irreparable damage, which entitled the em- 
 ployer to an injunction, notwithstanding she 
 might be pecuniarily able to respond to any 
 damages that might be recovered against her in 
 an action at law. lb. 
 
 23. Allegations by the defendant that, by the 
 cutting short of the previous season, for which 
 she was engaged under another contract, she 
 lost an expected benefit and her wages for four 
 weeks ; that she was not permitted during that 
 season to appear for a sufficient number of times, 
 nor assigned to parts suitable to her ability, and 
 that the manager's intentions in the contract in 
 suit were not to produce her but to prevent her 
 appearance on the stage, and thus injure her 
 professional reputation, no particulars, facts, or 
 circumstances tending to establish any motive 
 for such a course ; do not constitute any defense 
 to an application for an injunction. Jb. 
 
 24. A social corporation, which has entered 
 into a continuing contract with a life insurance 
 company for the insurance of lives of members 
 thereof on special terms advantageous to all 
 the members, such corporation agreeing not 
 to insure its members in any other company, 
 may be restrained from violating such contract 
 by transferring its insurance to another company, 
 without showing a justification or legal excuse 
 for so doing. N. Y. Supr. Ct., Sp. T., 1873, 
 World Mut. Life Ins. Co. v. Buna " Sand in 
 Hand," 47 How. 32. 
 
 25. Collection of judgment. Equity does 
 not interfere to restrain the collection of a judg- 
 ment upon the ground that it was erroneously 
 rendered, but only upon the ground that enforc- 
 ing it would be contrary to equity and good con- 
 science, as shown by facts of which the party 
 could not avail himself as a defense, or where he 
 was prevented from so doing, without any fault 
 of his own, by the fraud of the otlier party. Ct. 
 App., 1874, N. Y. ^ Harlem R. R. Co. v. Haws, 
 56 N. Y. (11 Sick.) 175; Eev'g S. C, 35 N. Y. 
 Supr. (3 J. & Sp.) 372. 
 
386 
 
 INJUNCTION. 
 
 26. Thus, where one who found a package of 
 money in a railroad car left it in the custody of 
 the railroad company, and afterward, upon the 
 refusal of the company to return it to him, re- 
 covered a verdict therefor, but before judgment 
 was entered an owner appeared and demanded 
 the money from the company ; — Held that it 
 could maintain an action to restrain the enforce- 
 ment of the verdict and collection of the judg- 
 ment thereon, and was not bound to seek relief 
 by motion in the original action. lb. 
 
 27. Easement, interference with. One 
 who, being the owner of three houses, the drain- 
 age from two of which passes through a drain- 
 pipe under the third to the street sewer, sells 
 and conveys such two without any reservation 
 or provision as to the drainage, thereby conveys 
 an easement in such drain, and may be restrain- 
 ed by injunction from interfering therewith. N. 
 Y. C. P. Chambers, 1875, Bamd v. Griffith, 49 
 How. 305. 
 
 28. Execution sale. An injunction will lie 
 at the instance of a purchaser of land on fore- 
 closure of a mortgage, to restrain the owner of 
 judgments claimed to be a lien upon the same 
 premises, but whose lien, if valid, was subse- 
 quent to that of the mortgage, from selling such 
 premises on execution. Sup. Ct., Wll, Reynolds' 
 V. Park, 5 Lans. 149. 
 
 29. Execution of void -warrant. A court 
 of equity will restrain by injunction the execu- 
 tion of a void warrant, issued in summary pro- 
 ceedings for the recovery of demised premises, 
 where it appears that its execution would work 
 irreparable injury to the tenant, for which he 
 would have no adequate remedy at law, the party 
 who caused the issue of the warrant being irre- 
 sponsible. N. Y. C.P.,Sp. T.,1869, Welzy.Niles, 
 8 Daly, 172. 
 
 80. Franchise, protection of. An injunc- 
 tion may properly be granted, upon the applica- 
 tion of the corporation of New York City, to pre- 
 vent the use of a ferry franchise without license 
 from the corporation, its rights being exclusive 
 and clearly established by charters and statutes. 
 N. Y. Supr. Ct., Sp. T., 1875, Mayor, etc. of New 
 York V. N. Y. and Staten Isl. Ferry Co., 49 How. 
 250. 
 
 81. Fraudulent diversion of railroad 
 property. Holders of railroad bonds, secured 
 by a mortgage which provides that all property 
 subsequently acquired shall become subject to 
 the lien and operation thereof, can maintain an 
 action to restrain the fraudulent diversion of 
 iron rails, subsequently acquired by the com- 
 pany, by the sale or pledge thereof by one of the 
 trustees of the mortgage, under a resolution of 
 the board of directors of the company authoriz- 
 ing him to do so, for the purpose of raising 
 money to meet past and future estimates for the 
 construction of the road, and in such action a 
 temporary injunction may properly be granted. 
 Sup. Ct., 1875, Weetjen v. St. Paul and Pac. R. 
 R. Co., 4 Hun, 529. 
 
 82. Such relief may be obtained as against 
 firms of which the trustee is a member, to which 
 part of the iron has been pledged for advances, 
 they being chargeable with notice of the facts ; 
 and also as against the secretary of the navy, to 
 whom another part has been transferred to se- 
 cure a precedent debt. lb. 
 
 88. Good ■will, protection of. An attempt- 
 ed appropriation by one member of a business 
 firm, after its dissolution, ^of the goodwill of its 
 business to the exclusion of the other members, 
 by the use of its firm name or one closely imitative 
 thereof, will be restrained by injunction; and 
 
 an action for that purpose may be maintained by 
 one of the other members, even after a receiver 
 of the partnership property has been appointed, 
 or an assignment in bankruptcy made by the 
 firm. Sup. Ct., Sp. T., 1870, Bininger v. Clark, 
 10 Abb. N. S. 264. 
 
 84. Improper use of stairway. Where, by 
 the terms of a lease, the lessee has the privilege 
 of using a stairway through premises not demis- 
 ed " for the purpose of carrying in or out ashes, 
 coal," &c., the use of such stairway as the prin- 
 cipal entrance to the demised premises will be 
 restrained by injunction. N. Y. C. P., 1871, 
 Agate v. Lowenbeim, 4 Daly, 62. 
 
 85. Injury by drainage. Where an increas- 
 ed and unnatural flow of surface water from 
 higher to lower lands, occasioned by the deep- 
 ening of a ditch along the highway by the own- 
 ers of sucli higher lands, causes serious injury 
 and is a source of constant danger to such lower 
 lands, a mandatory injunction will issue at the 
 instance of one or more separate owners of such 
 lower lands to compel the filling of such ditch to 
 its former level, and to restrain the parties from 
 again lowering it. Sup. Ct., 1871, FootY. Bronson, 
 4 Lans. 47. 
 
 86. Interference -with title. Since the 
 Code, the legal right of the owner of land may 
 be established, and the equitable remedy by in- 
 junction restraining interference therewith, ob- 
 tained in one and the same action. Ct. App., 
 1873, Broiestedt v. South. Side R. R.. Co., 55 N. Y. 
 (10 Sick.) 220. 
 
 87. Intrusion into ofEce. An injunction 
 may properly be granted to restrain one who 
 claims the office of deputy Chamberlain of the 
 city of New York, under an appointment by the 
 Comptroller, from intruding into that ofiice and 
 driving out the incumbent holding under ap- 
 pointment of the Chamberlain, and denying the 
 authority of the Comptroller in the premises. 
 N. Y. Supr. Ct., Sp. T., 1873, Palmer v. Foley, 
 44 How. 308 ; Afi'd, S. C, 45 How. 110 ; 86 N. 
 Y. Supr. (4 J. & Sp.) 14. 
 
 38. The title to an office cannot be tried in an 
 action to enjoin a claimant from usurping such 
 office. The statutory provision for the trial of 
 titles to office by actions commenced in behalf 
 of the people by the Attorney-General, are ex- 
 clusive and not cumulative merely. lb. 
 
 89. Although the Chamberlain would have 
 the right to exclude the claimant from his office 
 and prevent the usm-pation by force, if necessa- 
 rx,^et, an injunction is a better and more peace- 
 able remedy, and may properly be allowed lb. 
 
 40. The general object and use- of the process 
 of injunction as a preventive and protective 
 remedy considered at length. lb. 
 
 41. Issuing bonds. An action may be main- 
 tained by a taxpayer of a town, under ch. 161, 
 Laws of 1872, to restrain the unauthorized issue 
 of bonds in aid of a railroad, by the commission- 
 ers appointed under ch. 907, Laws of 1869, and 
 its amendments. Gkovek, Folgbk and John- 
 son, JJ., dissent. Ct. App., 1874, Ayers v. Law- 
 rence, 59 N. Y. (14 Sick.) 192 ; Bev'g S. C, 68 
 Barb. 454. 
 
 42. Iiegal proceedings. A grantee of lands 
 who knows that the deeds to fiis grantor and to 
 himself, by mistake, convey more land than 
 was intended, may be made a party to an action 
 by the first grantor for the reformation of the 
 deeds, and in such action may be enjoined from 
 f urtlier prosecuting an action of ejectment com- 
 menced by him for the land not intended to be 
 conveyed, and from instituting any other action 
 for the possession thereof except under some 
 
INJUNCTION. 
 
 387 
 
 other right or title. Ct. App., 1875, Bush v. 
 Hicks, 60 N. Y. (15 Sick.) 298. 
 
 43. A mortgagor who has arranged that cer- 
 tain personal property sliaJl be sold by the mort- 
 gagee and a third party, and the proceeds ap- 
 plied in payment of his mortgage, may main- 
 tain an action against such parties • for an ac- 
 counting as to the property sold by them, and 
 in such action may have an injunction restrain- 
 ing the mortgagee from proceeding with an ac- 
 tion to foreclose the mortgage. Sup. Ct., 1875, 
 Moffett V. Tuthill, 4 Hun, 76. 
 
 44. Under the provisions of the Revised Stat- 
 utes for the prevention of usury (sec. 5, title 3, 
 ch. 4, part 2, as amended by ch. 430, Laws 1837 ; 
 4 Edm. Stats. 459), a person who lias given col- 
 lateral securities upon a usurious loan is entitled 
 to an injunction restraining their prosecution, 
 without showing its necessity in pursuance of 
 sec. 219 of the Code. Brooklyn City Ct., 1873, 
 Wkeeloch v. Lee, 15 Abb. N. S. 24. 
 
 45. Literary property, protection of. A 
 State court has jurisdiction to protect literary 
 property, which is not atfected by the jurisdic- 
 tion conferred upon the federal courts in the 
 same class of cases. N. Y. Supr. Ct., 1875, 
 Isaacs V. Daly, 39 N. Y. Supr. (7 J. & Sp.) 511. 
 
 46. The use of the word " Charity " as a des- 
 ignation of a work of art or of literature can- 
 not ordinarily be monopolized by any one per- 
 son ; and a court will not interfere to prevent 
 its use by another party, unless it be in a case 
 where it is used in bad faith, or to promote 
 some imposition or inflict some wrong. lb. 
 
 47. Misappropriation of public money. 
 A court of equity has power to restrain by in- 
 junction the appropriation of public moneys to 
 pay for a street improvement not authorized by 
 law or city ordinance. Sup. Ct., 1875, Lutes v. 
 Briggs, 5 Hun; 67. 
 
 48. An action for that purpose may be main- 
 tained by one or more persons liable to assess- 
 ment for the expense of the work, in behalf of 
 themselves and others similarly interested. lb. 
 
 49. Multiplicity of suits, prevention of. 
 A court of equity has jurisdiction to prevent a 
 
 . multiplicity of suits by injunction. According- 
 ly, where 77 actions were brought in justices' 
 court, by one plaintiff for separate violations of 
 the same city ordinance, — Held, it appearing 
 that the justice's court had no power to grant 
 the relief asked for, or to consolidate the actions, 
 that an injunction restraining the prosecution of 
 all the actions but one, until that could be heard 
 and a determination reached therein, was prop- 
 erly granted. Com. App., 1873, Third Ave. B. 
 JR. Co. V. Mayor, etc. of New York, 54 N. Y. (9 
 Sick.) 159. 
 
 50. Nuisance. It is not necessary in order 
 to authorize an injunction to restrain the carry- 
 ing on of a chemical manufactory in such a 
 manner that a sulphurous gas escapes and is oc- 
 casionally carried by the winds to the neiglibor- 
 ing premises of the plaintiff, destroying vegeta^ 
 tion, compelling the closing of windows, and ir- 
 ritating the throats of those who breathe it, to 
 show that such fumes are prejudicial to health ; 
 but it is sufficient that the escaping gas is offen- 
 sive to the senses, renders the plaintiff's dwelling 
 uncomfortable, and sensibly and materially les- 
 sens the enjoyment of his property. Brooklyn 
 City Ct., Sp. T., 1872, MuUigan v. Elias, 12 Abb, 
 N. S. 259. 
 
 51. It is no reason for refusing an injunction 
 in such a case, that the fumes tend to neutralize 
 a malaria existing in the locality ; or that the 
 place is a manufacturing place. lb. 
 
 52. Nor will relief be denied on the ground 
 that the nuisance existed before the plaintiff ac- 
 quired his property or built his house,'at least, 
 where tliere is not shown so long a continuance 
 as to establish a prescriptive right. lb. 
 
 53. A person whose residence is rendered un- 
 fit for comfortable habitation by reason of the 
 smoke, gas and dust issuing from lime kilns, 
 erected and used by other parties upon their 
 own premises in the immediate vicinity, such 
 smoke and gas, when inhaled by persons of sensi- 
 tive lungs, being unpleasant and uncomfortable, 
 as well as detrimental to health, is entitled to a 
 perpetual injunction to restrain the continuance 
 of such use, to his annoyance and injury ; and 
 in the same action may recover damages for 
 past injuries. Sup. Ct., Sp. T., 1872, Hutchins 
 V. Smith, 63 Barb. 251. 
 
 54. The owner of dwellings which are jarred 
 and shaken, to their injury and the annoyance 
 of the occupants, by machinery run by steam 
 power in an adjoining building, is entitled to 
 protection by a judgment enjoining the occu- 
 pant of such adjoining premises from so eon- 
 ducting his business as to injure such owner, 
 even though the alleged nuisance was erected 
 and put in operation while tlie dwellings were 
 under lease to the defendant, and the action was 
 not commenced until after the termination of 
 the lease. Com. App., 1873, McKeon v. Lee, 
 51 N. Y. (6 Sick.) 300 ; Aff'g 4 Rob. 449. 
 
 55. An injunction to restrain a defendant from 
 maintaining a shed on a pier on the East river, 
 can be sustained, if such shed is a nuisance, 
 whether other sheds have for many years been 
 maintained on such piers by other parties, or 
 not. Sup. Ct., 1874, People v, Mallory, 2 Hun, 
 381. 
 
 56. Obstruction of ditch. Upon the com- 
 pletion of the ditch provided for by ch. 216, 
 Laws of 1826, for draining the river Wallkill, of 
 the size necessary, no one can lawfully obstruct 
 the same or retard the flow of the waters, to 
 prevent the accomplishment continuously of the 
 end desired, but any attempt to do so may be re- 
 strained by injunction. Ct. App., 1873, Houston 
 V. Wheeler, 52 N. Y. (7 Sick.) 641. 
 
 57. Private use of street. The appropria- 
 tion of part of a public street to private use 
 without lawful authority, being a public nui- 
 sance, will be restrained at the suit of an indi- 
 vidual who suffers a private and peculiar injury 
 therefrom. N. Y. Supr. Ct., Sp. T., 1874, Trenor 
 V. Jackson, 46 How. 389 ; S. C.,15 Abb. N. S. 115. 
 
 58. Thus, where a municipal corporation holds 
 the fee of streets in trust for the public use as 
 streets, the erection of a wooden awning extend- 
 ing out from a building over the sidewalk and 
 supported by posts standing next to and inside 
 of the curbstone, will be enjoined at the suit of 
 a person injured thereby, although so erected 
 under license from the corporation, because such 
 corporation has no power to divert any part of 
 the street from an exclusive public to a private 
 use. lb. 
 
 59. Quarrjring stone. An injunction may 
 properly be granted upon the application of the 
 grantee of land, wliose deed excepted and re- 
 served the privilege held by the defendant of 
 quarrying and conveying off the cement stone 
 thereon by virtue of a certain lease, to restrain 
 such defendant from continuing to quarry and 
 convey away the stone, after the expiration of 
 the first lease, until the determination of the 
 question of his right to a renewal of the leass 
 under a covenant therein. Sup. Ct., 1874, Nov 
 ton V. Snyder, 2 Hun, 82. 
 
•388 
 
 INJUNCTION. 
 
 60. Against public ofScera. Public bodies 
 and public officers may be restrained by injunc- 
 tion from proceeding in violation of law to the 
 prejudice of the public or to the injury of indi- 
 vidual rights ; but to entitle a plaintiff to such 
 relief he must show not only a clear legal and 
 equitable right thereto, but also that some act 
 is being done by the defendant or is threatened 
 and imminent, which will be destructive to such 
 right or cause him material injury. Ct. App., 
 1874, People v. Canal Board, 55 N. Y. (10 Sick.) 
 890. 
 
 61. The courts cannot be called upon to pass 
 upon the validity of a law, upon the mere sug- 
 gestion that it is void and that possible action 
 may be had under it, and in advance of any 
 proceedings had or threatened by the officials, 
 who if the law were valid, would be called upon 
 or authorized to act. lb. 
 
 62. Injury, material and actual, not fanciful 
 or theoretical, or merely possible, must be shown 
 as the necessary or probable result of the action 
 sought to be restrained. Accordingly, where a 
 complaint by the attorney general alleged that 
 the Canal Board were about to proceed under a 
 law authorizing them, in case the actual cost of 
 the labor under a canal contract exceeded the 
 contract price, to determine such extra cost and 
 allow it, but did not aver that the actual cost 
 did exceed the prices paid or that the board in- 
 tended or threatened to certify or allow any sum 
 whatever as such extra cost, or that there was 
 any appropriation of public moneys applicable 
 to the payment of any amount which might be 
 certified by them ; — Held, that, whether the law 
 was constitutional or not, it did not appear that 
 any injury was imminent or probable, and an 
 injunction would not be granted to restrain the 
 action of the board. lb. 
 
 63. An injunction will lie to restrain- the cap- 
 tain of the port and a harbor master of the city 
 of New York from enforcing an order for the 
 removal of a private bathing establishment from 
 waters adjacent to a pier, occupied by it under a 
 license from the department of docks, where it 
 is not shown that it essentially interferes with 
 navigation, or that the place is immediately 
 needed for the purposes of commerce. N. Y. 
 Supr. Ct., 1874, Hoeji v. Seaman, 38 N. Y. Supr. 
 (6 J. &Sp.) 62. 
 
 64. Trademark, infringement of. The in- 
 fringement of a trademark will be enjoined if 
 the imitation, though readily distinguishable 
 even on a slight or casual examination, is calcu- 
 lated to mislead the public. N. Y. Supr. Ct., Sp. 
 T., 1873, Popham v. Wilcox, 14 Abb. N. S. 
 206. 
 
 65. An injunction will lie to restrain the use 
 of a wrapper or label fo* a manufactured ar- 
 ticle, which is so close an imitation of one pre- 
 viously produced and adopted by another party 
 for a similar article of his manufacture, that 
 a crafty vendor may palm oft on buyers the 
 former article for the latter. N. Y. Supr. Ct, 
 1874, Brown v. Mercer, 37 N. Y. Supr. (5 J. & 
 Sp.) 265. 
 
 66. The fact that ia certain particulars the 
 defendant's label differs from that of the plain- 
 tiff, will not prevent an injunction being grant- 
 ed, so long as the imitation is so close and the 
 general appearance so like as to deceive pur- 
 chasers, lb. 
 
 67. The prior right of one who first uses here 
 a foreign word to designate an article manu- 
 factured by him, will be protected by injunction, 
 notwithstanding it had previously been used in 
 the foreign country to designate a similar arti- 
 
 cle. Sup. Ct., Sp. T., 1870, Rillet v. Carlier, 11 
 Abb. N. S. 186 ; S. C, 6l Barb. 435. 
 
 68. Not only the manufacturer of goods, but 
 the person for whom they are manufactured, 
 and a vendor who sells, and who may have no 
 direct relation to the manufacturer, has the 
 right to be protected by injunction in the use of 
 a device or trademark adopted by him to denote 
 their origin and ownership. N. Y. Supr. Ct, Sp. 
 T., 1876, Godilloi v. Hazard, 49 How. 6. 
 
 69. Trespass. "Where trespasses of a per- 
 sonal nature, oft repeated and damaging, are 
 committed against a franchise created and grant- 
 ed by the soverign power, a court of equity wiU 
 not hesitate to enjoin them. N. Y. C. P., Sp. T., 
 1873, Broadway, etc. Stage Co. v. American So. 
 
 for prevention of cruelty to animals, 15 Abb. 
 N. S. Si ; N. Y. Marine Ct., 1873, Christie v. 
 Bergh. lb. 
 
 70. The agents of the society for prevention 
 of cruelty to animals, duly designated by the 
 sheriff for that purpose, being authorized bylaw 
 to make arrests without warrant of offenders 
 against the acts prohibiting cruelty to animals, 
 when the offense is committed in their presence, 
 the court will not restrain them from arresting 
 drivers of an incorporated stage company for 
 such offenses, but may enjoin them from stop- 
 ping their vehicles, except for the purpose of 
 making an arrest in a clear case of violation of 
 the law, and from taking custody of the horses 
 or vehicles, or interfering with the passengers, 
 lb. 
 
 71. The stopping of a stage for the purpose of 
 arresting the driver when driving a horse which 
 is actually lame, is not a violation of such an in- 
 junction, lb. „ 
 
 72. Unlicensed dramatic entertsiinments. 
 The acts requiring licenses to be procured for 
 dramatic entertainments in the city of New 
 York (Laws 1839, p. 11; Laws 1860; p. 999; 
 Laws 1862, p. 475), extend to impromptu charac- 
 terizations, performed on successive nights in a 
 public hall, for admission to which a fee is 
 charged, and an injunction will lie to restrain 
 such performances. Sup. Ct., Sp. T., 1871, Soci- 
 ety for the Reformation of Juvenile Delinquents v. 
 Diero, 10 Abb. N. S. 216 ; S. C, 60 Barb. 152. 
 
 73. Use of firm name. An injunction may 
 properly issue to restrain purchasers of all the 
 partnership property of a firm, on its dissolu- 
 tion, from continuing to use the firm name with- 
 out authority, or advertising themselves as sue- 
 cessorl" of the old firm; and. where damage to 
 the plaintiff is alleged and not denied, an in- 
 junction pendente lite, may be granted without 
 proof of actual damage. N. Y. Supr. Ct., Sp. 
 T., 1871. Reeoes v. Deniclce, 12 Abb. N. S. 92. 
 
 74. Water rights, enforcement of. Where 
 the owner of lands upon a stream, while his mill 
 is adequately supplied from another source, 
 stores up the water of such stream and detains 
 it, by means of a reservoir, until he shall want 
 it for use in a dry season, equity will not enjoin 
 a lower riparian owner from enforcing his right 
 to the natural flow of water by opening the gates 
 of such reservoir, although such right may be 
 of no value to him, and his motives in enforcing 
 them may be bad or malicious. Ct App., 1871, 
 Clinton V. Myers, 46 N. Y. (1 Sick.) 511. 
 
 75. Working of mine. Equity will, in be- 
 half of the owner of land, restrain the working 
 of a mine thereon by another; and it is not 
 necessary that the plaintiff's right should first 
 have been established in an action at law. Ct. 
 App., 1871, West Point Iron Co. v. Reymert, 46 
 N. Y. (6 Hand,) 703. 
 
INJUNCTION. 
 
 389 
 
 in. When will not be geantbd. 
 
 76. Alteration of church. An injunction 
 will not be granted, on application of a member 
 of a religious society, to restrain the society 
 from removing and changing the pews of the 
 church, in alleged violation of his, rights as a 
 pew-holder, and contrary to the customs, usages 
 and doctrines of the church, where it appears 
 that the meeting of the society at which the 
 alterations were directed was regularly held, 
 and the proceedings were subsequently ratified 
 by the trustees and a large number of the elec- 
 tors, and where all the equities are denied by 
 the answer. N. Y. C. P., Sp. T., 1875, Solomon 
 V. Congregation B'nai Jeshurun, 49 How. 263. 
 
 77. Corporate management. An injunc- 
 tion cannot properly be granted at the suit of a 
 stockholder to restrain a business corporation in 
 respect to the general management of its corpo- 
 rate property or the investment of its surplus 
 inoneys, unless in the case of a clear violation 
 of express law, or a wide departure from char- 
 tered powers. Sup. Ct., Sp. T., 1872. Bach v. 
 Pacific Mail Steamship Co., 12 Abb.'N. S. 373. 
 
 78. An improper investment of the funds of 
 a savings bank by its trustees, is not sufficient 
 cause for continuing an injunction restraining 
 its president from performing any of the duties 
 or exercising any of the powers of the office of 
 trustee or president, unless it shall be shown that 
 some further misuse of corporate funds or some 
 other violation of plaintiff's rights is threatened 
 or contemplated. Sup. Ct., 1875, People ex rel. 
 Floyd V. Conldin, 5 Hun, 452. 
 
 79. An injunction will not be granted to re- 
 strain de facto officers of a corporation from 
 acting as such, on the sole ground of the alleged 
 invalidity of their title to their offices. lb. 
 
 80. An injunction to restrain a corporation 
 from reducing its capital stock in a mode author- 
 ized by law, cannot be sustained at the suit of a 
 stockholder, on the ground that his individual 
 liability for the debts of the corporation will be 
 thereby increased, upon his mere apprehension 
 that it may become unable to pay its debts, not 
 sustained by any proof. N. Y. C. P., Sp. T., 
 1872, Joslyn Y. Pacific Mail Steamship Co., 12 
 Abb. N.- S. 329. 
 
 81. Such injunction cannot be sustained, upon 
 affidavits alleging on information and belief the 
 intention of the corporation to use its assets to 
 reduce its stock, without giving the source of the 
 information. lb. 
 
 82. Covenant, breach of. An injunction 
 will not be granted to restrain a tenant from vio- 
 lating his covenant not to make any alteration 
 in or upon the demised premises without con- 
 sent, under penalty of forfeiture and damages, 
 because the landlord has an adequate remedy at 
 law to recover his damages, and may also pro- 
 ceed under the lease to enforce the forfeiture, 
 N. Y. Supr. Ct., Sp. T., 1874, Trenar v. Jackson. 
 46 How. 389; S. C, 15 Abb. N. S. 115. 
 
 83. Detention of ship under attachment. 
 Under an attachment against the property of 
 one of several joint owners of a ship, the sheriff 
 may sieze and retain possession of the ship ; and 
 an injunction will not be issued on the applica- 
 tion of the other joint owners, to restrain the 
 creditor and the officer from continuing in posses- 
 sion of and detaining the same. Sup. Ct, 1871, 
 Marshall v. McGregor, 59 Barb. 519. 
 
 84. Erection of bridge. An injunction will 
 not lie at the instance of a land-owner, whose 
 land is not actually touched or taken, to restrain 
 a city from erecting a bridge for public use 
 
 within its limits and on one of its streets, 
 although it may indirectly injure such owner ; 
 especially where a lawful bridge has previously 
 stood on the same spot for many years, and the 
 city proposes to rebuild it in such a manner as 
 to make it more useful to the public. . Sup. Ct., 
 Sp. T., 1872, Swett v. City of Troy, 12 Abb. N. S. 
 100; S. C, 62 Barb. 630. 
 
 85. An injunction should not be granted to 
 restrain such a public work until the final hear- 
 ing, when, if the plaintiff shows himself entitled 
 to relief, the court can consider the subject of 
 compensation, or compel a change or removal of 
 the structure ; especially, since there is no ques- 
 tion about the ability of the defendant to re- 
 spond, if a legal claim to damages is established, 
 lb. 
 
 86. An injunction should not be granted to 
 restrain the erection of a bridge over a stream, 
 on the ground that it is navigable water, merely 
 because the tibe ebbs and flows there, when it is 
 very doubtful whether it can ever be devoted to 
 purposes of navigation at that point in any useful, 
 substantial and practical way. Sup. Ct., Sp. T., 
 1870, People v. Meach, 14 Abb. N. S. 429. 
 
 87. Erection of ■wharf. An injunction will 
 not lie to restrain a riparian owner from erecting 
 a wharf on the margin of a navigable river, 
 below high water mark, opposite his own lands, 
 for purposes of commerce, unless it is shown to 
 so materially obstruct the navigation of the 
 stream as to be a nuisance. Sup. Ct., 1873, 
 Delaware Si' Hudson Canal Co. v. Lawrence-, 2 
 Hun, 163 ; Aff'd by Ct. App. 
 
 88. Expenditure of trust funds. An in- 
 junction will not lie to restrain trustees from 
 expending more of the trust funds than are ne- 
 cessary for the support of the beneficiary, at the 
 instance of a j udgment creditor of the latter. Sup. 
 Ct., Sp. T., 1873, Hann v. Van Voorhis, 15 Abb. 
 N. S. 79. 
 
 89. Incorporation of village. That the 
 incorporation of a village will subject the plain- 
 tiffs to burdens of local government dispropor- 
 tionate to the benefits to be received by them, 
 is not sufficient ground for an injunction to re- 
 strain others from taking legal proceedings for 
 such incorporation, especially where the plain- 
 tiffs will suffer no special injury not common to 
 the rest of the villagers. Sup. Ct., 1875, Steph- 
 ens V. Minnerly, 3 Hun, 566. 
 
 90. Issue of tcwn bonds. An injunction 
 will not be allowed to restrain individuals from 
 issuing town bonds in aid of a railroad, who are 
 not shown by the complaint to have authority 
 or color of authority to issue them. Sup. Ct., 
 1872, Pierce v. Wright, 45 How. 1 ; S. C, 6 Lans. 
 306. 
 
 91. In such an action, the questions whether 
 the persons who signed consents were tax- 
 payers, or owned the property assessed to 
 them, and whether the legal tax-payers who did 
 consent were a majority of the tax-payers and 
 property holders, cannot be tried, the statute 
 making the consents with the affidavits of the 
 assessors and copy of the roll absolute evidence 
 of those facts in the nature of a record. lb. 
 
 92. Laying tracks. No exclusive right to 
 lay tracks at the foot of Christopher street in 
 the city of New York was conferred by ch. 301, 
 Laws of 1878, upon the corporation thereby 
 created, and an injunction could not properly be 
 granted on its application to restrain the corpo- 
 ration created by ch. 160, Laws of 1873, from 
 laying tracks at that place, unless it actual- 
 ly interfered or was about to interfere with 
 the tracks of the former corporation at that 
 
390 
 
 INJUNCTION. 
 
 point. Only the public could interfere by in- 
 junction to protect the rights of the city or the 
 general public. Sup. Ct., 1875, Christopher Sf 
 Tenth St. R. R. Co. v. Central Cross-town R. R. 
 Co., i Hun, 630. 
 
 93. Legal proceedings. Proceedings by 
 creditors to enforce a lien upon the property of 
 their debtor, should not be restrained at the suit 
 of another creditor, who is not likely to be in- 
 jured thereby. Sup. Ct., 1878, Pusey v. Bradley, 
 46 How. 255. 
 
 94. In such a suit the rights of the debtor can 
 be protected, and the court may also, after issue 
 joined, make any person a party who may be 
 necessary to a full determination of all the 
 equities involved. lb. 
 
 95. The parties to fraudulent or oppressive 
 proceedings in one court may be enjoined by 
 another court, and thus the proceedings in the 
 former court may be suspended or controlled, 
 lb. 
 
 96. Creditors, who claim to have acquired a 
 preference by lien upon the property of" their 
 debtor, if not obliged to surrender it in order to 
 commence bankruptcy proceedings against him, 
 should not be permitted to enforce their lien by 
 action, and at the same time urge on the bank- 
 ruptcy proceedings to the injury of another cred- 
 itor, but at the J instance of such creditor they 
 may be enjoined from proceeding in bankrupt- 
 cy, lb. 
 
 97. An injunction will not lie to restrain a 
 threatened illegal arrest ; nor can several per- 
 sons threatened witli such arrest, unite in one 
 action to obtain such an injunction. Sup. Ct., 
 Sp. T., 1872, Burch v. Cavanaugh, 12 Abb. N. S. 
 410. 
 
 98. Where the minority of the common coun- 
 cil of a city have power, when assembled at a 
 regular meeting, to compel the attendance of the 
 other members, and attempt to exercise it at a 
 meeting not recognized as regular by tlie major- 
 ity, the latter cannot maintain an action to re- 
 strain such minority from meeting and acting as 
 such, and the marshal from arresting the plain- 
 tiffs, under the authority of such minority. lb. 
 
 99. The insolvency of the marshal is not 
 sufficient ground for an injunction to restrain him 
 from making an arrest. lb. 
 
 100. The danger of judicial proceedings is not 
 an injury justifying an injunction. Ct. App., 
 1874, Wolfe V. Burke, 56 N. Y. (11 Sick.) 115; 
 Eev'g S. C; 7 Lans. 151. 
 
 101. A person charged with infringing the 
 trademark of another, and threatened with an 
 action therefor, cannot maintain an action to re- 
 strain the defendant from commencing such 
 threatened action, and from interfering with his 
 use of the alleged trademark of his business by 
 suits, injunctions or otherwise. lb. 
 
 102v It is no ground forequitable interference 
 that the decision may result in determining the 
 law in a way which will or may have the effect 
 of preventing suits with the customers of the 
 plaintiffs or other parties. lb. 
 
 103. Neitlier is a party entitled to such relief 
 in equity, who, while avoiding liability for the 
 infringement of the trademark of another, has 
 adopted a course calculated to secure a portion 
 of the good will of the other's business. lb. 
 
 104. Where part of the consideration for a note 
 is bonajide indebtedness, and part usurious in- 
 terest, an injunction will not be granted to re- 
 strain its prosecution, unless the maker offers to 
 pay the original indebtedness. N. Y. C. P., 1871, 
 Smith V. Heath, 4 Daly, 123. 
 
 105. An injunction issued upon the applica- 
 
 tion of a holder of bonds secured by a second 
 mortgage on a railroad, to restrain the trustee 
 of that mortgage from proceeding in an action 
 to foreclose it, as against the holder of the prior 
 mortgage and a new company which hid suc- 
 ceeded to the rights of the mortgagors, until he 
 had procured a surrender of all the bonds issued 
 under the first mortgage, as originally intended, 
 — -Held, improperly granted, and, consequently, 
 vacated. Sup. Ct., 1875, Wait v. WeUer, i 
 Hun, 626. 
 
 106. The Supreme Court of one district has 
 power, in an equitable action brought for that 
 purpose, to restrain by injunction the prosecu- 
 tion of a prior equitable action pending in that 
 court in another district ; but the exercise of 
 this power is to be deprecated, except in extreme 
 oases. Ct. App., 1871, Erie Railway Co. v. 
 Raitisay, 45 N. Y. (6 Hand,) 637; Rev'g as to 
 this point, S. C, 3 Lans. 178. 
 
 107. An action cannot be maintained to re- 
 strain by injunction the proceedings in another 
 suit, in the same or in another court, between 
 the same parties, where the relief sought in the 
 later suit may be obtained by a proper defense 
 to the former one. Com, App., 1873, Saoaqe v. 
 Allen, 54 N. Y. (9 Sick.) 458 ; Aff'g S. C, 59 
 Barb. 291. • 
 
 108. It is no longer either necessary or allow- 
 able for a defendant to bring a separate action 
 for the purpose of enjoining or restraining pro- 
 ceedings in another action pending in the same 
 court, since he can now, as a general rule, inter- 
 pose any defense he may have, whether legal or 
 equitable, and obtain by motion or otherwise all 
 the relief he would be entitled to in such sepa- 
 rate action. N. Y. C. P., 1870, Carpenter v. 
 Keating, 10 Abb. N. S. 223. 
 
 109. Where a party is prosecuting a proceed- 
 ing in the surrogate's court and also one in the 
 Supreme Court, contrary to the terms of a com- 
 promise and release, claiming the right to do so 
 on the ground tliat such release was obtained 
 from her by fraud, an action may properly be 
 maintained to restrain her from prosecuting 
 either proceeding, until the determination of the 
 question of fraud in such action. Sup. Ct., Sp. 
 T., 1869, Sampson v. Wood, 10 Abb. N. S. 223, n. 
 
 110. An in j unction cannot properly be issued 
 to restrain a landlord from instituting summary 
 proceedings against his tenant, on the ground 
 that he has verbally extended the lease, since 
 that question can be determined in the summary 
 proceedings. Sup. Ct., 1874, Rapp v. Williams, 
 1 Hun, 716. 
 
 111. Misappropriation of burial ground. 
 One citizen of a city to which land has been 
 conveyed for a burial ground, although he has 
 an ancestor buried therein, has no such special 
 interest or rights to be affected by an appro- 
 priation of the land for another purpose, as will 
 enable him to maintain an action to restrain the 
 city from so appropriating it. Sup. Ct., Sp. T., 
 1875, Rousseau v. City of Troy, 49 How. 492. 
 
 112. Obstructing canal basin. Inasmuch 
 as no right to construct and maintain a basin on 
 a state canal can be created except by permis- 
 sion of a canal commissioner, and subject to his 
 control, and to be held only during the pleasure 
 of the canal board, an injunction will not lie to 
 restrain a canal commissioner from obstructing 
 such a basin, pursuant to the direction of the 
 board, although the plaintiffs may have occupied 
 the same for over 40 years. Sup. Ct., 1871, Bur- 
 bank V. Fay, 5 Lans. 397. 
 
 118. Obstructing navigation. A court of 
 equity will not enjoin the use and require the 
 
INJUNCTION. 
 
 391 
 
 remoTal of a floating elevator from a harbor 
 and ship canal, when its presence there is not of 
 itself an obstruction to navigation, but it only 
 becomes such when usedin a particular manner, 
 but will simply forbid its use in such unlawful 
 manner. Sup. Ct., 1875, People v. Horton, 5 
 Huh, 516. 
 
 114. Where, as in the city of Buffalo, the har- 
 bor masters have full power to redress sum- 
 marily any obstruction to navigation by such 
 elevator, and no neglect on their part is shown, 
 equity will not interfere by injunction. lb. 
 
 118. Occupation of place for sign. A 
 party who leases a rear office in a building, un- 
 der a lease which provides " that the one-third 
 at least of the front water table on L. street is 
 reserved for signs for the tenants of the rear 
 offices, and such amicable arrangement for signs 
 on the side entrance as may be agreed for," is 
 not entitled to be protected by injunction in the 
 exclusive use of the east side of the entrance, 
 for his sign, where no arrangement has been 
 made or attempted to be made by him with the 
 other tenants, even though the landlord may 
 have verbally agreed that he might place it 
 there before' executing the written lease. N. Y. 
 Supr. Ct., Sp. T., 1874, Knoeppel v. King's Co. F. 
 Ins. Co., 48 How. 208 ; AfE'd, S. C, 39 N. Y. Supr. 
 (7 J. & Sp.) 553. 
 
 116. Office, taking possession of. An in- 
 junction should not be issued to restrain a party 
 from taking possession of the books and papers 
 of an office, under color of title thereto ; but the 
 question of title should be tried in an action in 
 the nature of a quo warranto. N. Y. C. P., Sp. T., 
 1873, Coulter v. Murray, 16 Abb. N. S. 129 ; S. 
 C, 4 Daly, 506. 
 
 117. Payment to devisee. Where a will 
 devises the whole income of the testator's es- 
 tate to his wife, and she has received it and ap- 
 propriated it in her individual capacity, 'and the 
 executors have not used the power conferred 
 upon them to " lease, sell, convey and dispose 
 of" the estate, an heir-at-law cannot have an 
 injunction to restrain the executors from paying 
 over such income to her until the payment of 
 taxes on the estate. Sup. Ct., Chambers, Clark 
 V. Coles, 48 How. 266. 
 
 118. Public contract. A party who has put 
 in a bid for public work, naming two sureties, 
 in pursuance of a published notice, which re- 
 quired two sureties who should be satisfactory 
 to the commissioners, but who, after the accept- 
 ance of his bid, has been unable to procure one 
 of the persons named to become his surety, or 
 to induce the commissioners to accept a substi- 
 tute offered by him, cannot maintain an action 
 to restrain the commissioners from letting the 
 contract to another bidder, or from making any 
 payment under a contract so let. Sup. Ct., 1874, 
 Adams v. Ives, 1 Hun, 457. 
 
 119. Publishing and issuing circulars. A 
 party who owns patents for manufacturing gas 
 by a process known as " Wren's process," 
 " Wren's gas works," and " Wren's process in 
 making gas " cannot maintain an action to re- 
 strain another party, owning a patent taken out 
 by the wife of the former, known as " Wren's 
 patent or process," from sending out circulars or 
 letters in the following form, " We are informed 
 you are about negotiating for gas works, under 
 the Wren's patent or process. We desire to in- 
 form you that your city and State are our ter- 
 ritory, and none excepting our company have 
 any right or authority to dispose of, contract 
 for, or erect any works therein, under this pro- 
 cess," etc., since they mean no more than that 
 
 the defendant will not permit infringements of 
 its patent. Sup. Ct., 1874, Wren v. Cosmopolitan 
 Gas Co., 2 Hun, 666. 
 
 120. A court of this State will not restrain, as 
 being a libel upon the plaintiff's business, the 
 continued publication of circulars setting fortli 
 the exclusive rights of the defendants in certain 
 patents, and threatening prosecutions for infrin- 
 gements, where it appears that tliey were issued 
 in good faith with the sole purpose of advising 
 the public of what they consider their rights. 
 Com. App., 1874, Hovey v. Rubber Tip Pencil 
 Co., 57 N. Y. (12 Sick.) '119; Aff'g S. C., 33 N. 
 Y. Supr. (IJ. & Sp.) 522. 
 
 121. It would have no jurisdiction of such an 
 action where the validity of patents is put in 
 issue by the pleadings, lb. 
 
 122. Railroad across high-way. An in- 
 junction will not lie, at the instance of highway 
 commissioners, to restrain a railroad company 
 from constructing an authorized road " upon 
 and along " or across a highway, after it has 
 obtained authority so to construct it from the 
 Supreme Court. Sup. Ct., Sp. T., 1871, Baxter 
 V. Spuyten Duyvil, etc. R. R. Co., 11 Abb. N. S. 
 178 ; S. C, 61 Barb. 428. 
 
 123. Return of note. The maker of a note 
 cannot maintain an action to restrain a bank of 
 this State, to which such note has been sent by 
 a foreign receiver for collection, from returning 
 the note to such receiver, on the grounds, that 
 it was obtained by fraud, that the consideration 
 given for it has failed, and if returned it will be 
 the means of annoyance and injury to the busi- 
 ness and credit of the maker, and that innocent 
 parties may be defrauded thereby ; because upon 
 the facts stated he has a perfect defense at law, 
 and they do not justify an apprehension that 
 the receiver will make an improper use of the 
 note, and the plaintiff is under no obligation to 
 protect third parties from his fraud. Sup. Ct., 
 1874, Galusha v. Flour City Nat. Bank, 1 Hun, 
 573. 
 
 124. Such an action could not be maintained 
 upon a mere service of summons by publication, 
 lb. 
 
 126. Sale of chiirch pe-w. An injunction 
 will not be granted to restrain the sale of a 
 church pew for non-payment of an improper or 
 or unreasonable assessment, unless the plaintiff 
 first pays or offers to pay what is equitably due. 
 N. Y. C. P., 1869, Abernathy v. Society of the 
 Church of the Puritans, 3 Daly, 1. 
 
 126. Sale of mortgaged lands. A court of 
 equity of this State has no authority! to enjoin 
 a mortgagee of lands, situate without the State, 
 from selling them by public sale within this 
 State, according to the terms of his mortgage, 
 upon the mere allegation that such power is 
 void, where no statute of the State or territory 
 where the lands are situated, nor any other in- 
 validity in the power, is stated or made appar- 
 ent. N. Y. C. P., 1870, Central Gold Mining 
 Company v. Piatt, 3 Daly, 263. 
 
 127. Sale for assessment. Since the en- 
 actment of ch. 312, Laws of 1874, amendatory of 
 ch. 338, Laws of 1868, an action in equity to re- 
 strain the sale of property by the corporation of 
 the city of New York for an assessment, on the 
 ground of fraud or substantial error, cannot be 
 maintained ; the remedies given by that act be- 
 ing adequate to relieve the party aggrieved. 
 N. Y. Supr. Ct., 1876, Roe v. Maym, etc. of New 
 York, 89 N. Y. Supr. (7 J. & Sp.) 192. 
 
 128. Sale on execution. Wliere several 
 tenants in common of lands convey to each 
 other in severalty, by way of bargain and sale 
 
392 
 
 INJUNCTION. 
 
 and not of partition, so tiiat the lands conveyed 
 to one of tiiem become subject to the lien of a 
 judgment previously obtained against him, of 
 which the others had knowledge, equity will not, 
 upon application of such others, declare the 
 lands conveyed to them by him free from the lien 
 of such judgment and restrain the sale thereof 
 on execution under it, where aU the lands held 
 ii judgment debtor have previously been 
 sold to satisfy other judgments against him. 
 AoF' ' ^^^^' ■''^'=""'™ V. Wagener, 60 Barb. 
 
 129. Specific performance. An injunction 
 will not be granted to enforce the specific per- 
 formance of a contract, where, as in case of a 
 covenant in a lease not to use the demised prem- 
 ises for any purpose or business which would 
 mcrease the hazard or rates of insurance beyond 
 what would be caused by a steam engine to be 
 put in by the lessee, the damages can be exactly 
 ascertained (being in such case measured by the 
 increased rate of insurance) ; and, especially, if 
 the occupancy complained of does not clearly 
 appear to be within the covenant. N. Y. C. P., 
 1871, Agate v. Lowenbeim, 4 Daly, 62. 
 
 130. Taxes, imposition of. An injunction 
 will not be granted to restrain the imposition of 
 a public tax or assessment, at the instance of a 
 party claiming to be injured by its creating a 
 lien upon or affecting the title to his property, 
 where the adverse claimant through such pro- 
 ceeding is required to show its entire regularity ; 
 and the alleged irregularity or error must be 
 disclosed by the record of the proceeding when 
 so produced, or in the course of the proofs nec- 
 essary to be adduced to show the existence and 
 due exercise of the power to impose the tax. 
 N. Y. C. P., Sp. T., 1872, Crevier v. Mayor, etc. of 
 New York, 12 Abb. N. S. 340. 
 
 181. That remedy will not be interposed, while 
 there is an adequate remedy at law to resist, or 
 to review and correct the erroneous proceeding, 
 lb. 
 
 132. The exceptional cases in which a court of 
 equity will interfere, are embraced within three 
 classes. 1st. Where the proceeding in the subor- 
 dinate tribunal will necessarily lead to a multi- 
 plicity of suits. 2nd. To restrain the commission 
 of irreparable injury, and 8rd. Where the title 
 to be derived under it is prima facie valid by 
 force of the instrument or proceeding sought to 
 be enjoined or set aside, and its invalidity must 
 be established by proof of extrinsic facts. lb. 
 
 133. The liability to multiplicity of suits must 
 be personal to the plaintiff. One upon whose 
 separate property a lien or cloud may be created 
 by the proceeding, cannot initiate and maintain 
 an action for an injunction in behalf of himself 
 and of others whose separate property will be 
 similarly affected. lb. 
 
 134. An injunction cannot be sustained by 
 one or more tax payers to prevent the collection 
 of a tax illegally imposed, and, consequently, it 
 cannot be sustained to restrain the probable or 
 possible future imposition of such a tax, which 
 tliey may become hable to pay by reason of the 
 unautliorized issuing of town bonds for railroad 
 purposes. Sup. Ct., Sp. T., 1872, Corwin v. 
 Campbell, 45 How. 9. 
 
 135. — assessment, of. Assessors are quasi 
 judicial officers when acting within the sphere 
 of tlieir jurisdiction, and are not subject to an 
 action to review, modify or reverse their judg- 
 ments, nor to liold them to a personal liability ; 
 consequently an action will not lie for an in- 
 junotion restraining them from making a pro- 
 posed assessment. Com. App., 1872, Western 
 
 Railroad Company v. Nolan, 48 N. Y. (B Sick.) 
 513. 
 
 136. Such an injunction would also be denied 
 on the ground that the party aggrieved has an 
 adequate remedy at law, by certiorari. lb. 
 
 137. — collection of. As a general rule, a 
 tax payer cannot maintain an action to restrain 
 the collection of an alleged illegal tax, especial- 
 ly where he has a perfect remedy at law. Sup. 
 Ct., Sp. T., 1868, Thurston v. (Hty of Elmira, 10 
 Abb. N. S. 119. 
 
 138. Such tax payer cannot bring such action 
 in behalf of himself and other persons against 
 whom like assessments have been made, nor 
 join such persons with himself as plaintiffs, to 
 restrain the collection of a tax, which does not 
 affect any joint property, but only their sepa- 
 rate lots. lb. 
 
 139. An action wUl not lie to restrain the col- 
 lection of a tax, unless the case is brought with- 
 in some acknowledged head of equity jurisdic- 
 tion. An allegation that the corporation intend 
 to proceed, and will proceed unless restrained, 
 not only to collect the tax in question, but from 
 time to time to assess and tax the plaintiff's prop- 
 erty for similar purposes is not sufficient. Ct. 
 App., 1863, Pumpelly v. Village of Owego, 45 
 How. 219. 
 
 140. — disbursement of. An action brought 
 by one tax-payer, professedly for himself and 
 other tax-payers, to restrain commissioners for 
 bonding a town in aid of a railroad from dis- 
 bursing money collected by tax to pay interest 
 on the bonds illegally issued by them, and com- 
 pel them to repay such money to the tax-payers 
 from whom it was collected, in which no other 
 tax-payers appear to join, must be treated as the 
 individual action of such tax-payer for the pur- 
 pose of determining whether it can be main- 
 tained. Sup. Ct., 1873, Kilboume v. AUyn, 7 
 Lans. 352. 
 
 141. Such an action, it seems, could not be 
 maintained by several tax-payers, since the in- 
 terests of each one in the money forming the 
 subject of the controversy are distinct, personal 
 and peculiar to himself. lb. 
 
 142. Such an action cannot be maintained on 
 the ground of the prevention of a multiplicity 
 of suits, where the pleadings and evidence do 
 not show that others propose or threaten to sue, 
 or dissent from the proposed disbursement' of 
 the money. lb. 
 
 143. A judgment in such an action, directing 
 repayment to other tax-payers, could not be 
 sustained where it is not alleged that they are 
 dissatisfied with the proposed disbursement, and 
 have not applied or authorized an application 
 therefor. lb. 
 
 144. Neither will an injunction lie to restrain 
 the disbursement of the plaintiff's portion of the 
 tax, where the commissioners holding it are 
 abundantly able to answer for it, since the 
 plaintiff has a sufficient remedy at law against 
 them. lb. 
 
 145. Courts of equity have no jurisdiction to 
 restrain the collection of a tax imposed without 
 authority of law, nor to control the application 
 of the proceeds of such tax while in the hands 
 of the proper official custodian, after collection, 
 upon the ground that there was no law authoriz- 
 ing its imposition or collection. Ct. App., 1874, 
 Kilboume v. St. John, 59 N.' Y. (14 Sick.) 21. 
 
 146. Trade-mark. An injunction will not be 
 granted in favor of a plaintiff wlio has no more 
 right to use a trade-mark than lias the defend- 
 ant, to restrain the latter from manufacturing 
 and selling under such trade-mark an article 
 
INNKEEPER— INSOLVENT DEBTORS. 
 
 393 
 
 different from that represented by it, although 
 such defendant does not know the secret of the 
 manufacture of the genuine article. N. Y. Supr. 
 Ct., 1875, Weston v. Ketcham, 89 N. Y. Supr. (7 
 J. & Sp.) 54. 
 
 147. Trespass. As a general rule, an injunc- 
 tion will not lie to restrain a simple trespass, but 
 there are cases in which no other remedy is ad- 
 equate. Sup. Ct., Sp. T., 1872, Murray v. Knapp, 
 42 How. 462 ; S. C, 62 Barb. 566. 
 
 148. A preliminary injunction should not be 
 granted in such a case, unless it is shown that 
 there is a pressing injury or danger from de- 
 lay; even though the plaintiff may show himself 
 entitled to a final judgment for an injunction, 
 lb. 
 
 149. Upon setting aside a judgment and exe- 
 cution in an action for real property, under 
 which the plaintifi has obtained the legal pos- 
 session thereof, and granting an order for the 
 restoration of possession to the defendant, it is 
 irregular to include in such order an injunction 
 clause, restraining the plaintifi from entering 
 into or interfering with the possession of the 
 premises, or from cultirating or otherwise using 
 them. Sup. Ct, 1872, DaiMey t. Brown, 43 
 How. ,22. 
 
 150. Use of firm name after dissolution. 
 A former partner of a firm doing business under 
 the name of " J. L. & Co.," which has been dis- 
 solyed without any agreement as to the good 
 will, or restriction from going into the same 
 business or using the former firm name, cannot 
 maintain an action to restrain his former co- 
 partner, J L, from using that firm name as the 
 style of a new partnership formed by him with 
 a third party; or eren from continuing to use it 
 after the dissolution of the new firm, although 
 the use of the words " & Co." where no firm ex- 
 ists, is prohibited by statute. N. Y. Supr. Ct., Sp. 
 T., 1873, Laihrop t. Lathrop, 47 How. 532. 
 
 See Peacticb, VIL 4. 
 
 IKNKBEPER. 
 
 1. Liability for goods of guests. The 
 mere fact that a guest at a hotel taltes the key 
 to his room, but omits to lock the door, does not 
 constitute such negligence on his part as will 
 relieve the landlord from liability for goods 
 stolen from the room while the door remains 
 unlocked. N. Y. Supr. Ct., 1870, Classen v. Leopold, 
 3 Sweeny, 705. 
 
 2. Safe provided. Under ch. 421, Laws of 
 1855, an innkeeper who has provided a safe in 
 his office for the safe keeping of money, jewels 
 and ornaments, and posted a notice of that fact 
 conspicuously in the room of a guest, is not 
 liable for any money stolen from the latter ; but 
 that statute does not release him from his com- 
 mon-law liability for articles not expressly men- 
 tioned, such as a watch and chain. Ct. App,, 
 1871, Ramalay v. Leland, 43 N. Y. (4 Hand,) 539. 
 
 3. Where a large package containing valuables 
 was handed by a guest to the bookkeeper of a 
 
 .hotel, with a request to put it in the safe, but 
 without disclosing its contents, and the latter 
 said there was no necessity for that and directed 
 him to take the package to his room, saying it 
 would be just as safe there ; — Held, that there 
 was no refusal to receive the valuables, but that 
 the facts constituted a "neglect to deposit," 
 within the meaning of the statute, which would 
 
 discharge the innkeeper. Ct. App., 1871, Ben- 
 detson v. FrencA,"46 N. Y. (1 Sick.) 266. 
 
 4. The statute does not relieve the innkeeper 
 from liability for losses which would have hap- 
 pened even if the deposit had been made, as, 
 where the package stolen is packed into the 
 trunk of the guest preparatory to departure, 
 the door of his room locked, and the key deliv- 
 ered to the clerk with orders to have his trunk 
 brought down, lb. 
 
 INQUEST. 
 See Pbaotiob. 
 
 INSOLVENT DEBTORS. 
 
 1. The provisions of the State insolvent laws 
 for the discharge of the debtor from imprison- 
 ment are not repealed or suspended by the gen- 
 eral bankrupt act of Congress. N. Y. C. P., Sp. 
 T., 1871, Matter of Jacobs, 12 Abb. N. S. 273. 
 
 2. Jurisdiction. The presentation of the 
 petition and schedule of an imprisoned debtor, 
 duly verified as required by 2 E, S. 29, sec. 1, con- 
 fers jurisdiction upon the officer. Tlie order to 
 show oause, required by sec. 3, is an incident of, 
 but not essential to such jurisdiction. lb. 
 
 3. An order which requires tlie creditors to 
 show cause before F S, one of the judges of the 
 Court of Common Pleas in and for the city and 
 county of New York, sufficiently designates the 
 place of return. lb. 
 
 4. A notice which apprizes the creditors of the 
 debtor's intention to ask that he may assign his 
 estate for the benefit of his creditors and be dis- 
 charged from imprisonment, is a proper notice 
 to them to show cause why the prayer of the 
 petitioner should not be granted. lb. 
 
 5. Absence from the county of his residence 
 of the officer before whom the proceedings are 
 commenced being a statutory ground for their 
 continuance before another officer residing in 
 the same county, judicial knowledge of such 
 absence is sufficient evidence thereof to such 
 other officer or court, unless disproved by the 
 opposing creditors. lb. 
 
 6. Publication of notice. Until publication 
 of a notice of the application of an imprisoned 
 debtor to be discharged from imprisonment, is 
 made as directed, and proof thereof is before the 
 officer, he is without jurisdiction. Sup. Ct., 
 1875, People ex rel. Lewis v. Daly, 4 Hun, 641. 
 
 7. The EifSdavit required by statute to be 
 annexed to an imprisoned debtor's petition to 
 be discharged (2 E. S. 32, sec. 5), need not be 
 sworn to until the prisoner is actually brought 
 into court to be heard on his petition. N. Y. 
 C. P., Sp. T., 1871, Hillyer v. Rosenberg, 11 Abb. 
 N. S. 402. 
 
 8. An application for a discharge from 
 imprisonment on execution should show that 
 the petitioner is imprisoned for over $500, and 
 has been imprisoned for three months, those 
 facts being jurisdictional. N. Y. C. P., Sp. T., 
 1871, Matter of Rosenberg, 10 Abb. N. S. 450. 
 
 9. An objection to the jurisdiction because 
 those facts do not appear may be taken as well 
 on a motion to re-hear, after denial of the ap- 
 
394 INSOLVENT CORPORATION— INSURANCE COMPANIES. 
 
 plication, as well as' upon the original hearing. 
 
 10. Denial of application. An application 
 for a discharge should not be denied merely be- 
 cause the debtor has inadvertently omitted some 
 property from his schedule, but, if on his exam- 
 ination he remembers such property, the court 
 should allow him to amend his petition by in- 
 serting it at the hearing, if satisfied that the 
 omission was not intentional or fraudulent. lb. 
 
 11. If he fails to amend at the hearing, and 
 his application is denied for that reason, he may 
 afterward move for a re-hearing and for leave to 
 amend ; but he must first procure the order 
 denying his application to be set aside that 
 order being properly the end of the proceeding, 
 lb. 
 
 12. Second petition. An insolvent debtor, 
 whose petition for a discharge from execution, 
 under 2 R. S. 31, has been refused because his 
 proceedings are adjudged to be not just and fair, 
 in that he failed to include in his petition and 
 account, some of his property which ought to 
 have been included, cannot be permitted to pre- 
 sent a new petition, including said property, and 
 stating no new facts except such as are intended 
 to explain or justify his acts in his former pro- 
 ceeding ; but he will be left to an application to 
 re-open the former proceeding, upon proof of 
 good faith in the matters charged upon him in 
 it. N. Y. C. P., Sp. T., 1871, Matter of Thomas, 
 10 Abb. N. S. 114. 
 
 13. Discharge, when operative. The 
 omission of an insolvent to file the papers on 
 which his discharge from his debts has been ob- 
 tained, within three montlis after the dis- 
 charge was granted, and to have them re- 
 corded, as required by ch. 116, Laws 1866 (6 
 Edm. Stats. 701) leaves the discharge inoperative 
 until they are filed. Sup. Ct, Sp. T., 1872, 
 Barnes v. Gill, 13 Abb. N. S. 169. S. P., Mills v. 
 Eildreth, 5 Hun, 364. 
 
 14. The subsequent filing of the papers makes 
 the discharge operative from the time of filing, 
 upon debts due at or before the granting of the 
 discharge, but cannot affect the rights of a cred- 
 itor whicli have become vested by a levy made 
 after the expiration of the three months and be- 
 fore the filing. lb. 
 
 15. If the debtor had previously been arrested 
 and discharged on bail, he would be liable to ar- 
 rest on execution, notwithstanding his discharge, 
 after three months, if the papers were not on 
 file, and his bail on such arrest would be liable 
 on their undertaking, in case he was not found 
 by the sheriH or surrendered by them. Sup. Ct., 
 1875, Mills V. Eildreth, 5 Hun, 364. 
 
 16. Effect of discharge. The discharge of 
 a debtor under tlie insolvent laws of this State, 
 will not affect the validity or binding force of a 
 contract previously made with a citizen of an- 
 other State, although such 'contract was to be 
 performed here. Com. App., 1871, Pratt v. Chase, 
 44 N. Y. (6 Hand,) 597; Rev'g S. C, 29 How. 
 296 ; 19 Abb. 150. 
 
 INSOLVENT COEPOEATION. 
 
 1. Transfer by. The payment of the check 
 of a depositor by a bank, in the ordinary and 
 usual course of its business, cannot be said to 
 have been done in contemplation of insolvency, 
 within the meaning of 1 K. S. 603, s«c. 4, even 
 
 though such bank while continuing in business 
 was at the time known to its officers to be insol- 
 vent. Ct. App., 1874, Butcher v. Importer's ^ Tr. 
 Nat. Bk., 59 N. Y. (14 Sick.) 5. 
 
 INSURANCE COMPANIES. 
 
 As to incorporation, see ch. 608, Laws o/"1871 ; ch. 
 
 849, Laws o/I873. 
 As to town insurance companies, see ch. 235, Laws 
 
 o/"1872 ; ch. 561, Laws of 1873 ; ch. 560, Laws 
 
 of 1874. 
 As to safety funds, see ch. 189, Laws of 181i. 
 As to liability of agents,' see ch. 688, Laws o/1873. 
 As to foreign insurance companies, see ch. 888, Laws 
 
 0/1871 ; ch. 331, Laws o/1874. 
 
 1. Advance premium notes. Where an 
 insurance company receives notes for premiums 
 in advance, under a provision in its charter au- 
 thorizing it to receive them " as additional se- 
 curity to its dealers," which, as between the 
 maker and the company, are liable for losses 
 after the cash capital and other resources of the 
 company are exhausted, the liability of the 
 makers of such notes is not discharged by a 
 change lawfully made by the company in its man- 
 ner of doing business, even though such change 
 may decrease the casli assets ; and even if such 
 change was wrongful, it would not relieve the 
 makers from liability, they being sureties, not to 
 the company but to its creditors. Ct. App , 
 1875, Osgood y. Toole, 60 N. Y. (16 Sick.) 475; 
 AfE'g S. C, 1 Hun, 167. 
 
 2. The term "exhausted" as used in the 
 charter in relation tliereto does not require that 
 all other assets of the company shall be collected 
 and actually applied to the payment of tlie lia- 
 bilities of the company before resort can be had 
 to the " security notes," but they must be re- 
 garded as exhausted when it clearly appears that 
 all its other resources are insufficient for that 
 purpose. lb. 
 
 3. The fact that one of the notes sued on was 
 given in renewal of a note which was made pay- 
 able twelve months after date, in violation of a 
 provision of the charter requiring them to be 
 payable " within twelve months," furnishes no 
 defense thereto. lb. 
 
 4. Agency, termination of. The death of 
 one member of a firm which held an agency 
 from an insurance company, and was accus- 
 tomed to receive payments of premium on a 
 policy issued by the company, terminates the 
 agency, and the survivor cannot bind the com- 
 pany by receiving further payments for it. 
 Sup. Ct., 1872, Marline v. International Zy% 
 Assurance Co. of London, 5 Lans. 535 ; S. C, 
 62 Barb. 181 ; AfE'd, S. C, 53 N. Y. (8 Sick.) 
 339. 
 
 5. Assessment of notes. Where the by- 
 laws of a mutual insurance company, organized 
 under the act of 1849 (eh. 308, Laws of 1849), 
 provided that notice of an assessment upon its 
 premium notes should be published in three news- 
 papers printed in the county where it was 
 located, — Held, that such an assessment could 
 not be collected without proof, either that no- 
 tice was published in the requisite number of 
 papers, or that it was impossible to so publish 
 it for lack of that number of papers in the 
 county ; and proof that it was published in two 
 papers would not throw upon the defendant the 
 
INSURANCE, FIRE. 
 
 395 
 
 onus of showing that there were others in which 
 it might have been published. Ct. App., 1874, 
 Sands V. Graves, 58 N. Y. (13 Sick.) 94. 
 
 6. It seems, the provisions of sec. 13, eh. 
 466, Laws of 1853, requiring the directors of 
 such a company to publisli notice of the assess- 
 ment in such manner as they shall see fit, or as 
 the by-laws of the company shall prescribe, is 
 not merely directory, and personal notice to the 
 person assessed will not be equivalent to nor a 
 substitute for publication. lb. 
 
 7. To make a valid assessment under said 
 acts, there must be an examination and de- 
 termination of the amount of losses and expenses 
 to which the note is liable to contribute, and of 
 the whole amount of notes liable to assessment 
 therefor, and the assessment must be based 
 upon such examination and determination. 
 While a reasonable discretion may be exercised 
 in determining the facts, an assessment made 
 without inquiring into them will be void ; nor 
 can the omission be supplied by proof on the 
 trial sliowing that the making of the assessment 
 would have been proper. lb. 
 
 8. If policies have been issued for cash pre- 
 miums, solely, and losses paid from the fund so 
 obtained, that fact should be ascertained and 
 allowance made tliereforby those making assess- 
 ment upon the premium notes. lb. 
 
 9. Action on premium notes. Under 
 the act of 1858 (ch. 466), providing for the in- 
 corporation of insurance companies, a personal 
 demand of the maker of a premium note given 
 prior to its passage, is made necessary only 
 when it is sought to recover judgment for the 
 entire note, as a penalty for neglecting to pay a 
 partial assessment thereon. Assessments made 
 on such notes may be recovered without such 
 dem'and. Ct. App., 1871, Sands v. Lilienthal, 
 46 N. Y. (ISick.) 541. 
 
 10. Securities deposited. The securities 
 deposited by a life insurance company with the 
 State comptroller, are a special fund for the se- 
 curity of policy-holders, and he cannot volun- 
 tarily transfer them, nor can he be compelled 
 to transfer them to a receiver of such com- 
 pany appointed in an action to procure its disso- 
 lution and a distribution of its assets. Ct. App., 
 1874, Ruggles v. Chapman, 59 N. Y. (14 Sick.) 
 163 ; Afi'd, S. C, 1 Hun, 324. 
 
 11. Disposition of. In case an insurance 
 company is found on examination to be in sueli 
 a situation as to be unsafe for the further transac- 
 tion of its business, the securities deposited for 
 the security of unregistered policies are to be 
 distributed under a decree of the Supreme 
 Court, made for that purpose ; while only those 
 deposited for the security of registered policies 
 and annuity bonds are to be sold by the superin- 
 tendent of the insurance department, and their 
 proceeds paid over to the receiver, and applied 
 by him to the satisfaction of registered policies 
 and annuity bonds, and the surplus to other 
 debts of the company. The commissioner can- 
 not be compelled to sell all the securities deposit- 
 ed in his hands, and pay over the proceeds to 
 the receiver. Sup. Ct., 1875, People ex rel. Stout 
 v. Chapman, 5 Hun, 222. 
 
 12. Reinsurance. The intent of the law 
 authorizing insurance companies to reinsure 
 their risks was, that they should reinsure them 
 for the benefit of the whole company, and not of 
 the particular holders of the policies reinsured ; 
 and the appropriation of funds of the company 
 to the reinsurance of certain risks, or classes of 
 risks, for the benefit of the holders of the 
 policies and not of the whole body, gives an un- 
 
 lawful preference to creditors. Sup. Ct., Sp. T., 
 1874, Gdsserly v. Manners, 48 How. 219. 
 
 18. A foreign insurance company which en- 
 ters into an agreement, in the State of New 
 Jersey, with the receiver of an insurance com- 
 pany of this State, dissolved by order of court, 
 for the reinsurance of its outstanding risks, 
 such agreement being ratified and approved by 
 the court, would be estopped from alleging, in 
 its own defense, that such contract was made in 
 violation of the laws of this State, relating to 
 foreign insurance companies, and would be 
 liable on the contract, and may therefore enforce 
 it against the receiver. Sup. Ct., 1874, Jay v. 
 De Groot, 2 Hun, 205. 
 
 14. Domiciled corporation. A foreign 
 insurance company which has sought and ob- 
 tained the privilege of carrying on its business 
 here under regulations fixed by the statutes of 
 this State, and has established a permanent 
 general agency, and conducts its business here as 
 a distinct organization, in the same manner as 
 domestic corporations, is to be regarded, as to 
 the business transacted here, as domiciled and 
 subject to the same obligations and liabilities as 
 domestic institutions. Ct. App., 1873, Martine 
 V. International Life Ass. So. of London, 53 N. Y. 
 (8 Sick.) 339. 
 
 INSURANCE, FIRE. 
 
 I. In general 395 
 
 II. Insurable interest 396 
 
 III. Contract op insurance, construc- 
 
 tion OF, ETC 397 
 
 IV. Representations bt assured 401 
 
 V. Assignment op policy and rights 
 
 OP assignee 403 
 
 VT, Loss AND PROCEEDINGS THEREON .... 403 
 
 I. In general. 
 
 1. Parol contract. An agent authorized 
 by an insurance company to solicit and act on 
 proposals for Insurance, and receive premiums 
 therefor in its behalf, and to make insurance by 
 policies of the company to be countersigned by 
 him, has sufficient authority to make a valid 
 preliminary contract for the issue of a policy by 
 parol, that being the general usage in that busi- 
 ness ; and a parol agreement to that effect made 
 by him, and the receipt of the premium, binds 
 the company. Ct. App., 1872j Ellis v. Albany 
 City Fire Ins. Co., 50 N. Y. (5 Sick.) 402 ; Aff'g 
 S. C, 4 Lans. 433. S. P., Angell v. Hartford F. 
 Ins. Co., 59 N.Y. (14 Sick.) 171. 
 
 2. Fre-payment of the premium is not essen 
 tial to the validity of such contract, but if the 
 agent gives credit therefor it is binding. lb. 
 
 8. Where an agent for several insurance 
 companies, on being applied to for insurance 
 on a quantity of cotton, agreed to insure it for 
 a specified amount at an agreed rate of pre- 
 mium, and the distribution of the insurance 
 among the companies represented by him being 
 left to his discretion, placed a certain amount 
 with the defendant company, entered the con- 
 tract to that effect in his register, received the 
 premium and credited the company with the 
 amount, and before loss reported and paid 
 over to the company, — Held, that this was 
 in substance a contract to issue a policy for 
 that amount, and was binding on the company. 
 
396 
 
 INSURANCE, FIRE. 
 
 Rapallo, Allen and Andrews, JI»,^dissent. 
 Ct. App., 1872, Ellis v. Albany CityFire Ins. 
 Co., 50 N. Y. (5 Sick.) 402. ' 
 
 4. A valid agreement for insurance may be 
 made by parol ; and where suoli a contract is 
 made to cover a mortgagee's interest, and the 
 mortgagee afterward becomes the owner, the in- 
 surance may, by parol, be continued on the in- 
 terest thus acquired by him, and this without 
 any additional consideration. Com. App., 1871, 
 Fish V. Cottenet, 44 K Y. (5 Hand,) 538. 
 
 5. A parol contract of insurance, made by an 
 agent who had authority to " bind the company 
 during the correspondence," will hold such com- 
 pany althougli, by the negligence of the agent 
 and without the fault of the insured, the appli- 
 cation is not received by the company until after 
 loss. lb. 
 
 6. Procured by agent. One who is agent for 
 *,n insurance company may nevertheless act as 
 agent for a property owner in procuring insur- 
 ance on such property from another company, 
 where there is no conflicting duty upon him, and 
 the contract made by liim will be binding upon the 
 parties. Ct. App., 1873, Excelsior F. Ins. Co. v. 
 Royal Ins. Co. of Liverpool, 55 N. Y. (10 Sick.) 
 343 ; AfE'g S. C, 7 Lans. 138. 
 
 7. A payment of the premium on a policy 
 after notice of its being issued, made by the 
 agent of the owner for making insurance, binds 
 such owner without any further ratification on 
 his part ; and if such payment is made and ac- 
 cepted after the loss, that is sufficient, and the 
 company is bound from the date of the accept- 
 ance of the proposition for insurance. lb. 
 
 8. Cancellation. Under a clause in an in- 
 surance policy, giving to the company the option 
 to terminate the insurance, " on giving notice to 
 that effect, and refunding a ratable proportion of 
 the premium for the unexpired term, it is requi- 
 site to a cancellation that the company give no- 
 tice of a present termination of the insurance, 
 not that it will be terminated at a future time ; 
 that they seek out the assured and actually pay 
 or tender to him the ratable proportion of the 
 premium ; and that they be sure the sum paid 
 or tendered is sufficient in amount. Com. App., 
 1873, Van Valkenburgh v. Lenox Fire Ins. Co., 61 
 N. Y. (6 Sick.) 465. 
 
 9. Negligence on the part of the assured or 
 those acting under him, occasioning the loss, 
 does not, in the absence of fraud or design, affect 
 his right to recover on the policy. N. Y. Supr. 
 Ct., 1876, O'Brien v. Commercial F. Ins. Co., 38 
 N. Y. Supr. (6 J. & Sp.) 517. 
 
 10. Re-insurauoe. Wliere the agent of an 
 insurance company, having been directed to can- 
 cel a policy issued by him upon property, did 
 not do so, but applied to the agent of another 
 company for re-insurance upon the risk, which 
 they refused, and he then procured from them 
 an insurance on the interest of the owner in the 
 property for the amount of the policy previously 
 issued by him in the former company, the same 
 being issued to such owner but never delivered 
 to her, and the premium never paid until after 
 the loss ; — Held, that the contract with the lat- 
 ter company was for original insurance, and not 
 for re-insurance. Sup. Ct., 1872, Excelsior Fire 
 Ins. Co. V. - Royal Ins. Co. of Liverpool, 7 Lans. 
 138; AfE'd, S. b., 65 N. Y. (10 Sick.) 843. 
 
 11. Under a contract of re-insurance, covering 
 one-half the interest of the re-insured under its 
 policy, the company re-insuring is liable for one- 
 half of all losses arising under the original policy, 
 although the re-insured may be insolvent and 
 unable to pay in full, notwithstanding a provi- 
 
 sion that such loss shall be payable "pro rata 
 and at the same time with the re-insured." Ct. 
 App., 1874, Blackstone v. Allemania Fire Ins. Co., 
 56 N. Y. (11 Sick.) 104 ; Aff'g S. C, 4 Daly, 299. 
 
 EL Insurable interest. 
 
 12. A commission merchant may insure 
 in his own name goods held by him for sale, in 
 such manner that the insurance will continue in 
 his name for the benefit of his vendees not spe- 
 cially designated, so long as the goods, though 
 sold and technically delivered, are not yet re- 
 moved from his possession ; and he may bring 
 an action on the policy in his own name in case 
 of loss and recover for the benefit of such ven- 
 dees. Ct. App., 1871, Waring v. Indemnity Fire 
 Ins. Co., 45 N. Y. (6 Hand,) 606. 
 
 13. Creditor. Insurance companies in this 
 State have no authority to insure a debt, or to 
 guarantee its payment, and a simple contract 
 creditor can therefore obtain no valid insurance 
 of his debt, unless he has an interest in real es- 
 tate. Sup. Ct., 1876, Foster v. VanReed, 5 Hun, 
 321. 
 
 14. A mortgagee who is authorized by the ' 
 mortgage to insure at the mortgagor's expense 
 in case of the latter's failure to insure, and who 
 does so insure, by virtue of that authority, " his 
 interest as mortgagee " in the buildings on the 
 mortgaged premises, must be deemed to insure 
 the property and not his debt merely. lb. 
 
 16. A husband remaining in possession of 
 premises after a conveyance of the legal title 
 thereto, through a third party to his wSe, upon 
 her parol agreement to reconvey to him, imme- 
 diately, a life estate therein, has an insurable 
 interest in the property, although no conveyance 
 of the life estate has been executed to him. Ct. 
 App., 1874, Redfield v. Holland Purchase Ins. Co., 
 56 N. Y. (11 Sick.) 854. 
 
 16. O'wii^ of equity of redemption. The 
 former owner of premises which have been sold 
 on execution against him has an insurable inter- 
 est therein, not only while his own right of re- 
 demption continues, but so long as that right re- 
 mains in his judgment creditors. Ct. App., 1875, 
 Cone V. Niagara F. Ins. Co., 60 N. Y. (16 Sick.) 
 619. 
 
 17. — of crop. One who had taken a cotton 
 plantation to operate for a year, with the under- 
 standing that his advances should be first paid 
 out of the proceeds of the crop and the balance 
 equally divided between himself and the owner, 
 and who had made advances to an amount 
 greater than the whole value of the crop, — Held 
 to be within the spirit of a policy of insurance 
 on such crop, the " sole and unconditional 
 owner " of the same, and entitled to recover as 
 such for a loss thereon. Com App., 1873, Noyes 
 v. Hartford Fire Ins. Co., 64 N. Y. (9 Sick.) 
 668. 
 
 18. By the agreement of letting, all stock fur- 
 nished by the assured was to be equally divided 
 at the end of the year, and the loss having oc- 
 curred after that time ; — Held, that the parties 
 were co-tenants as to all articles of stock, and 
 the assured could not recover as sole owner for 
 their loss. lb. 
 
 19. — of legal title. A person purchasing 
 property in his own name for the benefit of an- 
 other, has the legal title as against the whole 
 world save such other and his creditors, and as 
 the owner of such legal title, can insure the 
 property. Ct. App., 1874, Bicknell v. Lancaster 
 City and County Fire Ins. Co., 68 N. Y. (13 Sick.) 
 677. ■ 
 
INSURANCE, FIRE. 
 
 397 
 
 20. Purchaser of mortgage. One who has 
 
 contraotgd for the purchase of a mortgage upon 
 real estate, and paid part of the purchase-money, 
 the balance to he paid in instalments, and the 
 mortgage transferred upon such payment, has 
 an insurable interest in the property to the full 
 amount secured by the mortgage, being the 
 equitable owner thereof. Ct. App., 1873, Ex- 
 cdsior F. Ins. Co. v. Royal Ins. Co. of Liverpool, 
 65 N. Y. (10 Sick.) 343 ; Affi'g S. C, TLans. 138. 
 
 21. A vendor of lands, before deed given, 
 has an insurable interest therein, and, having 
 the legal title, may cover, not only his especial 
 interest in the property, but theproperty itself. 
 Ct. App., 1871, Wood Y. North Western I'ns. Co., 
 46 N. Y. (1 Sick.) 421. 
 
 nr. CoNTKACT OP Insurance, Construction of, 
 &c. 
 
 22. Alienation, condition as to. Where 
 a policy of insurance, prohibiting alienation of 
 the property, provided " that the commencement 
 of foreclosure proceedings or the levy of an 
 execution should be deemed an alienation," — 
 Meld, that the first part of this clause had refer- 
 ence to the ordinary proceedings for the fore- 
 closure of a mortgage, and not to the special 
 statutory proceedings for enforcing a mechanic's 
 lien ; and that the provision relating to a 
 " levy " meant a levy upon personal property, 
 and not an advertisement of real estate under 
 an ordinary execution, there being properly no 
 levy in such a case. Com. App., 1874, Colt v. 
 Phamix Fire Ins. Co., 54 N; Y. (9 Sick.) 595. 
 
 28. Exception as to explosion. Under a 
 policy which provides that the company shall 
 not be liable for loss caused by explosions of any 
 kind unless fire ensues, and then for the loss or 
 damage by fire only, no liability accrues in case 
 of an explosion caused by a vapor or gas coming 
 in contact with the flam.e of a lamp, such burn- 
 ing lamp not being a fire within the policy. It 
 seems, however, that if the building had been on 
 fire, and an explosion had occurred in the course 
 of the general conflagration, the liability would 
 have attached. Ct. App., 1873, Briggs v. N. 
 American and Mercantile Ins. Co., 53 N. Y. (8 
 Sick.) 446. 
 
 24. Hazards, condition as to. Where a 
 policy contained the condition that the assured 
 might use the premises for certain occupations 
 mentioned and " other extra hazardous pur- 
 poses," and the privileged uses specified were 
 among those defined as " specially hazardous," 
 in the classification of risks annexed to the 
 policy ; — Held, that he might use the premises 
 for any specially hazardous purpose. Ct. App., 
 1872, Reynolds v. Commerce Fire Ins. Co. of New 
 York, 47 N. Y. (2 Sick.) 597. 
 
 25. Insurance companies being unrestricted 
 in the right to insert in their policies such terms 
 and conditions as they please, equivocal lan- 
 guage, especially if calculated to mislead the 
 assured, should be construed most strongly 
 against the party issuing the policy. lb. 
 
 26. Where the language of a policy is am- 
 biguous, resort may be had to extrinsic facts 
 aiid the circumstances attending its issue, to 
 arrive at the actual intent and meaning of the 
 contract ; and when it appears that the insurer 
 had notice of the purposes for which the prem- 
 ises wer^ used, it will be presumed that he in- 
 tended to protect them as they were. lb. 
 
 27. A provision in a policy of fire insurance 
 issued upoh a stock of merchandise against the 
 
 "storing or keeping" of hazardous articles, 
 must be held to refer only to storing or keeping 
 in a mercantile sense, in considerable quantities, 
 with a view to commercial traffic, or where the 
 storing or safe-keeping is the principal object of 
 the deposit, and not as prohibiting the keeping 
 of small quantities for medicinal purposes. Eat, 
 C, dissents. Com. App., 1874, Wiuiams v. Fire- 
 men's Fund Ins. Co., 54 N. Y. (9 Sick.) 569. 
 
 28. To heirs and representatives. A 
 policy of insurance on property belonging to 
 the estate of a deceased person, issued to the 
 " heirs and representatives " of the deceased, is 
 to be construed as issued to the person or per- 
 sons who have title to the property by the will of 
 or by descent from such deceased ; and is valid 
 in favor of one who was by will made executrix 
 and trustee of the real estate, with, power to 
 collect rents, to insure, to sell, and convey. 
 Sup. Ct. Cir., 1872, Savage y. Long Island Ins. 
 Co., 43 How. 462 ; Aff'd, S. C, 52 N. Y. (7 Sick.) 
 502. The form of the policy implies knowledge 
 on the part of the company that the property 
 was held by an executrix in trust for herself 
 and the heirs, and shows that it was the trust 
 fund or interest which was intended to be in- 
 sured. S. C, 44 How. 40. 
 
 29. To joint owner. Where N, owning a 
 quantity of wool jointly with G, by mistake 
 applied for and obtained an' insurance on it in 
 his own name alone, but, on discovering his 
 mistake, applied, to the agent of the insurance 
 company for its correction, informing him of 
 the joint ownership, and the latter thereupon 
 inserted in the policy a clause as follows : " In 
 case of loss, if any, one-half payable to G as his 
 interest may appear," and returned it to N ;— 
 Held, that, construed by the light of surround- 
 ing circumstances, the effect of that clause was 
 to make the insurance one upon the joint prop- 
 erty of N and G, that being clearly the intention 
 of the parties, and it having been accepted as 
 such after the correction. Sup. Ct., 1871, Pitney 
 V. Glens Falls Ins. Co., 61 Barb. 335. 
 
 80. So construing the policy, there was no 
 misrepresentation of the title of the property in 
 the application. lb. 
 
 31. Of mortgage interest. An insurance 
 company which insures a mortgage interest does 
 not insure the debt, but the interest of the mort- 
 gagee in the property, on the safety of which 
 his security depends ; and if that property is 
 consumed or damaged by fire, the company is 
 bound, to the extent of its liability, to make 
 good the loss, without regard to the value of the 
 property remaining. Ct. App., 1873, Excelsior 
 F. Ins. Co. V. Royal Ins. Co. of Liverpool, 55 N. Y 
 (10 Sick.) 848. 
 
 32. The mortgagee who, without any agree- 
 ment or understanding with the mortgagor, and 
 at his own expense, has insured his mortgage 
 interest, is not required to exhaust his remedy 
 upon the property before enforcing his policy ; 
 but he can maintain an action thereon, although 
 the remaining property is equal in value to the 
 mortgage debt. lb. 
 
 33. In such a case the company, on paying 
 the loss, is entitled to be subrogated to the rights 
 of the insured. lb. 
 
 34. Property insured. A policy in terms 
 covering property of commission merchants, 
 "sold but not removed," — Held to embrace 
 goods sold and technically delivered, so that the 
 title and right of possession have changed, but 
 not yet removed from the place of storage. Ct. 
 App., 1871, Waring v. Indemnity Fire Ins. Co., 45 
 N. Y. (6 Hand,) 606. 
 
398 
 
 INSURANCE, FIRE. 
 
 35. A policy upon a " stock of fancy goods, 
 toys, and other articles in the line of business of 
 the assured," in a certain city, " as a German 
 jobber and importer," with a pririlege of keep- 
 ing flre crackers on sale, contained a condition 
 suspending its operation so long as the premises 
 should be used for the storage of articles de- 
 nominated hazardous or specially or extra haz- 
 ardous in the second class of hazards annexed 
 to the policy. In the class of " special " hazards 
 were mentioned "fireworks," which added 60 
 cents on the $100 to the rate of insurance. In 
 an action for a loss occasioned by the ignition 
 of a quantity of fireworks, — Held, that if, as a 
 matter of fact, the keeping of fireworks was in 
 the line of plaintiff's business, the loss was 
 within the policy, and that the jury could not 
 consider the rate of premium paid as bearing 
 upon the question wliether fireworks were in- 
 tended to be insured. Com. App., 1873, Stein- 
 bach V. LaFayette F. Ins. Co., 54 N. Y. (9 Sick.) 
 90: 
 
 36. Where a policy of insurance is Issued 
 upon the materials used iu a business, it includes 
 all such as are in ordinary use in such business, 
 althougli by the printed clauses of the policy, 
 the keeping or use of such materials upon the 
 premises is prohibited, and although other things 
 might be substituted therefor. Ct. App., 1874, 
 nail V. Insurance Co. of North America, 58 N. Y. 
 (18 Sick.) 292. 
 
 37. Wliere a policy was issued covering a stock 
 of goods upon'the first floor of a certain building, 
 and the company, when the policy was about to 
 expire, with knowledge that the insured had re- 
 moved to the third story of the same building, 
 received from him the premium for renewal, de- 
 livering in return a receipt mentioning the build- 
 ing but not the floor containing the goods, and 
 referring to tlie policy by number, — Held, that 
 the renewal would be construed as covering the 
 goods in their new location, and t)ie assured, in 
 case of a loss, could recover. Com. A^., 1872, 
 Ludwig V. Jersey City Insurance Co., 48 'N. Y. (3 
 Sick.) 379. 
 
 88. Reinsurance. A written clause, "Loss, 
 if any, payable pro rata with the reinsured," in- 
 serted in a policy whereby one insurance com- 
 pany reinsures another company on a risk 
 previously taken by the latter, is to be construed 
 as meaning tliat if, iu case of loss under the first 
 policy, the reinsured company became bound to 
 pay, not the whole sum insured, but a percentage 
 or fraction thereof, then the reinsuring company 
 should only pay the same percentage or fraction 
 of the sum covered by its policy ; and the fact 
 that the policy contains a subsequent printed 
 clause more clearly expressing the same idea 
 does not affect the construction of the former 
 clause. N. Y. Supr. Ct.,187S, Norwood v. Resolute 
 Fire Ins. Co., 47 How. 48 ; S. C, 36 N. Y. Supr. 
 (4 J. & Sp.) 552. 
 
 89. Condition as to change of title. By 
 the provisions of sec. 14 of the U. S. Bankrupt 
 Act, an assignment in bankruptcy changed the 
 title to real property of the bankrupt, within 
 the meaning of the condition of an insurance 
 policy thereon, that " a change in title or pos- 
 session, by legal process, judicial decree," &c., 
 shall render the policy void. Sup. Ct, 1871, 
 Perry v. Lorillard Fire Ins. Co., 6 Cans. 201. 
 
 40. The conveyance of the insured property to 
 a mortgagee thereof, and taking back of an 
 agreement giving the mortgagor possession and 
 an option to pay a specified sum as a considera- 
 tion for reconveyance, and if such payment is 
 not made, the property to become vested in the 
 
 grantee, is a sale, within the meaning of a con- 
 dition in the policy avoiding it in case of sale. 
 Sup. Ct, 1875, Tatham v. Commerce Ins. Co. of 
 Albany, 4 Hun, 136. 
 
 41. Where an insurance was effected upon 
 mortgaged premises, in the name of the mortgagor 
 as owner, but withaprovisionforpaymentofany 
 loss to the mortgagee, underapolicycontaininga 
 clause avoidingitas to the mortgagor in case of any 
 change of title to the property insured,— 5cM, 
 that, although the mortgagor had no interest ex- 
 cept his personal liability upon the mortgage, 
 having conveyed the premises previous to effect 
 ing the insurance, a subsequent conveyance by 
 his grantee would avoid the policy save as to the 
 mortgagee's interest, which was excepted from 
 that clause. Ct App., 1871, Sprinofiefd F. &• M. 
 Ins. Co. V. Allen, 43 W. Y. (4 Hand,) 389. 
 
 42. In such case, the mortgagor cannot claim 
 the benefit of a payment made by the company, 
 upon a loss, to the mortgagee, as a satisfaction 
 of the mortgage debt ; but, under a clause sub- 
 rogating the company to the rights of the mort- 
 gagee, in case payment is made to him upon a loss 
 for which such company was not liable to the 
 mortgagor, it is entitled to take an assignment 
 of and foreclose the mortgage. lb. 
 
 43. Where a mortgagee of property, after pro- 
 curing insurance on it for his benefit, forecloses 
 his mortgage and becomes the purchaser, and 
 notifies the agents of the company of the change 
 of title, and they by parol consent that the policy 
 shall continue in force for his benefit, such con- 
 sent confirms the policy as a valid subsisting 
 contract, notwithstanding a provision in it that, 
 upon a change of title, the insurance shall im- 
 mediately cease. Ct. App., 1874, Pratt v. N. Y. 
 Cent. Ins. Co., 55 N. Y. (10 Sick.) 505; Aff'g S. 
 C, 64 Barb. 589. 
 
 44. A conveyance of the fee of premises in- 
 sured, though an immediate mortgage be taken 
 back from the purchaser, is such a change of 
 title as will vitiate tlie policy, under a clause 
 therein avoiding it " in case the property be sold 
 or transferred, or any change take place in tlie 
 title or possession." Ct App., 1878, Savage v. 
 Howard Insurance Co., 52 N. Y. (7 Sick.) 502; 
 Rev'g 44 How. 40. 
 
 45. A policy, on personal property, issued by 
 a mutual insurance company whose charter pro- 
 vided that upon any alienation of the property 
 insured the policy should become void, and 
 shoidd be surrendered to the company, and the 
 insured should then be entitled to receive his 
 deposit note on paying his proportion of losses 
 accruing prior to the surrender, became void 
 upon the sale of the property by the insured, 
 although he took back a chattel mortgage there- 
 on to secure the purchase-money, and the in- 
 sured was then entitled to receive back hisnote, 
 on paying his proportion of suoh losses. Sup. 
 Ct, 1874, Miner v. Judson, 2 Hun, 441. 
 
 46. A contract under seal to sell the insured 
 property, and payment of part of the purchase- 
 money, constitutes a change of interest of the 
 parties, within the meaning of a provision in the 
 policy that " if the property should be sold or 
 conveyed, or the interest of the parties therein be 
 changed," the policy shall be null and void. Sup. 
 Ct, 1874, Germond v. Home Ins. Co., 2 Hun, 540. 
 
 47. A verbal agreement for the sale of insured 
 property, which was void by the statute of 
 frauds, because not in writing, and no part of 
 the property was delivered, and no portion of 
 the purchase-money was paid, or was to be paid 
 until the property was weighed, nor then except 
 by application on a previous debt due the pur- 
 
INSURANCE, FIRE. 
 
 399 
 
 chaser, ia not such a diyesting of the interest of 
 the insured therein as will bar a recovery by 
 him in case of a loss, under a prorision making 
 the policy void in case of a transfer of interest 
 in the property. Sup. Ct., 1871, Pitney v. Glens 
 Falls Ins. Co., 61 Barb. 8S6. , 
 
 48. An acceptance by the purchaser, after a 
 loss by Are, of so much of the property as was 
 not destroyed, in pursuance of the contract pre- 
 viously made, does not take the sale of the 
 whole quantity out of the statute, so as to divest 
 the right of action of the insured for that which 
 was destroyed. lb. 
 
 49. — as to fraud or false s'wearing. A 
 policy of insurance providing for a forfeiture in 
 case of fraud, or any attempt at fraud, by false 
 swearing, oT otherwise, is not avoided by the 
 mere fact that the insured, in making his prelim- 
 inary proofs of loss, swore to a larger amount 
 than that afterward found, upon trial, by a ref- 
 e{f e ; but it must be made to appear in addition, 
 that there was no such amount of property de- 
 stroyed, and that the insured knew the fact when 
 swearing to such proofs of loss. N. Y. C. P., 
 1871, Unger v. People's Fire Ins. Co. of New York, 
 4 Daly, 96. 
 
 50. — as to increase of risk. A condition 
 in a policy of insurance on a stock of mer- 
 chandise, that " if the risk should be increased 
 by any means whatever within the control of the 
 assured," the policy should be void, is broken 
 by the keeping on the premises of a jug of crude 
 petroleum oil for medicinal purposes, although 
 it does not cause the fire, i& the risk is thereby 
 increased. Com. App., 1874, Williams v. People's 
 Fire Ins. Co., 67 N. Y. (12 Sick.) 274. 
 
 61. Another condition in such policy prohibit- 
 ing the keeping of petroleum for sale or storage, 
 or its use for lighting, without permission, cannot 
 be construed, as by not prohibiting, to permit the 
 keeping for inedicinal use, if the risk is thereby 
 increased. lb. 
 
 52. A clause in such policy authorizing the 
 company to cancel it and return the unpaid 
 premium, in case the premises shall be occupied 
 or used so as to increase the risk, is to be con 
 Btrued as providing for the case of an increace 
 of risk by the acts of others over whom the in- 
 sured had no control, and not affecting the 
 clause providing against increase of risk by the 
 act of the owner. lb. 
 
 63. The absence of the assured with his clerk 
 or servant for 26 days prior to the fire, leaving 
 the premises closed during business hours for the 
 whole time, while engaged in business at a place 
 80 miles distant, will not vitiate the policy 
 under a clause rendering it void if the premises 
 are occupied or used so as to increase the risk, 
 where there is no evidence that the risk was 
 actually increased thereby. N. Y. Supr. Ct., 
 1875, O'Brien v. Commercial Fire Ins. Co., .^8 N. 
 Y. Supr. (6 J. & Sp.) 517. 
 
 54. Where the terms of a policy would permit 
 the use of the premises for a stock of " cabinet 
 ware," but prohibited any more hazardous occu- 
 pancy, any work-shop or manufactory, or the 
 keeping of alcohol, turpentine and other speci- 
 fied articles, — Held, that the practice of receiv- 
 ing chairs from the factgry in an unfinished 
 state and putting them together on the premises, 
 employing in the operation some eight or ten 
 men constantly, and several of the prohibited 
 articles, would avoid the policy ; and that a loss 
 caused by the explosion of an alcohol lamp used 
 in-such operation, could not be recovered under 
 it. Com. App., 1873, Appleby v. Astor Fire Ins. 
 Co., 54 N. Y. (9 Sick.) 253. 
 
 55. A provision in a policy that " any change 
 in the risk" not made known at the time of re- 
 newal, shall render tlie renewal and the policy 
 null and void, covers only such changes as in- 
 crease the risk, and no notice need be given of 
 a change which does not increase it. Ct. App., 
 
 1874, Parker v. Araic Fire Ins. Co., 59 N. Y. (14 
 Sick.) 1. 
 
 56. — as to occupation of premises. The 
 occasional and necessary absence of the assured, 
 his family and servants from the insured prem- 
 ises, does not make them vacant and unoccupied, 
 within the meaning of a clause in the policy 
 making it void in case they become so. N. Y. 
 Supr. Ct., 1876, O'Brien v. Commercial Fire Ins. 
 Co., 38 N. Y. Supr. (6 J. & Sp.) 517. 
 
 57. Such absence may be considered in con- 
 nection with other circumstances, tending to 
 show an intent to leave permanently, which 
 would vitiate the policy. lb. 
 
 68. A condition in a policy on a dwelling 
 house, that if it shall " become vacated by the 
 removal of the owner or occupants, or be un- 
 occupied," &c., the policy shall be null and void, 
 the abandonment of the house for tlie summer 
 months, by the tenant, taking some of his furni- 
 ture and leaving the residue, is a removal within 
 the spirit of the policy, and avoids it. Sup. Ct., 
 
 1875, Cummins v. Agric. Ins. Co., 5 Hun, 554. 
 
 59. A vacation " by the removal of the owner 
 or occupant," means an abandonment of the 
 house as an actual place of residence, perma- 
 nently or temporarily, but the absence of the 
 family for a night or a day would not be such a 
 removal. lb. 
 
 60. — as to other insurance. A clause in a 
 policy requiring any other insurance "on the 
 said property " to be consented to in writing on 
 the policy, must be construed as referring to the 
 property itself, and not to the separate interests 
 of the different owners ; and the existence of an 
 insurance upon the interest of one of the joint 
 owners of property at the time he applies for 
 and obtains insurance on the property itself for 
 the benefit of the joint owners, not so consented to 
 on the latter policy, does not avoid it. Sup. Ct., 
 1871, Pitney v. Glens Falls Ins. Co., 61 Barb. 335. 
 
 61. An insurance upon a stock of merchandise 
 in a particidar store, held by the insured for 
 sale, covers not only 'the actual property on 
 hand when the insurance was effected, but also 
 property of the same description which is substi- 
 tuted for that which has been sold ; and an in- 
 surance of the stock in the same terms after such 
 substitution is another insurance of the same 
 property within the meaning of a condition in 
 the previous policy, requiring consent of the 
 company to other insurance. Sup. Ct., 1872, 
 Whitwell V. Putnam Fire Ins. Co., 6 Lans. 166. 
 
 62. Whether such a new insurance would be 
 double insurance, where the value of the prop- 
 erty exceeds both palicies, query f lb. 
 
 63. The failure to obtain consent to other in- 
 surance avoids the whole policy containing that 
 condition, although the second policy covers only 
 a part of the same property. lb. 
 
 64. The condition may be waived by parol, and 
 proof of facts showing a waiver is admissible in 
 an action on the policy. lb. 
 
 65. -^ as to payment of premium. Where 
 an insurance company, at the request of its 
 agents, sent to them a policy of insurance in 
 favor of a person for whom they were endeavor- 
 ing to effect a change of insurance, and he, with- 
 out any previous agreement to accept the policy, 
 and without paying the premium as required by 
 the policy, to make it valid, received it after a 
 
400 
 
 INSURANCE, FIRE. 
 
 loBS had occurred ; — Held, that the proposal to 
 insure came from the company, and had never 
 been accepted ; that the delivery after the loss 
 was unauthorized, and did not create a contract 
 of insurance ; and that the premium not having 
 been paid, the insurance was void. Sup. Ct., 1874, 
 Train v. Holland Purchase Ins. Co., 1 Hun, 526. 
 
 66. — aa to proof of loss. A condition 
 precedent in a policy, that the insured shall 
 deliver to the company a verified account in 
 writing of his loss within 10 days after the loss, 
 becomes a part of the contract of insurance, and 
 effect should be fairly given to it as to every 
 other part of the contract. Com. App., 1874, 
 Underwood v. Farmers' Joint Stock Ins, Co., 48 
 How. 367 ; S. C, 57 N. Y. (12 Sick.) 500. 
 
 67. Without compliance with such condition 
 the insured cannot recover for a loss, unless the 
 condition has been waived by some act of the 
 company or its agents occurring before forfeit- 
 ure, whereby it is estopped from alleging non- 
 performance as a defense. lb. 
 
 68. Evidence that the insured, on the third 
 day after the fire, verbally notified the local 
 agent of the company, who had effected the 
 insurance and had been allowed by the company 
 to adjust and pay losses without consulting 
 the company, and asked him what. he should 
 do, and was told by him to wait until the 
 general agent came, and they would straighten 
 the matter up ; and that in about a month, 
 when the general agent came, an afiBdavit was 
 drawn up and verified by him, giving an ac- 
 count of the loss, and the agents left him say- 
 ing that upon their return they would straighten 
 the matter up, but did not do so ; and that they, 
 for the first time, claimed that he was in default 
 for not delivering his account of loss in time, 
 some three weeks afterward, when he sent them 
 another verified account of loss ; would be suffi- 
 cient to establish a waiver of the condition if 
 uncontradicted ; but where the most material 
 part of such evidence is contradicted, the court 
 cannot determine as a matter of law that it has 
 been waived. lb. 
 
 69. A clause in a policy requiring the assured 
 to produce his books of account and other 
 vouchers, and certified copies of all bills and 
 invoices, the originals of which are lost, only 
 requires him to act in good faith and furnish all 
 the information he has without evasion or con- 
 cealment, and copies of all bills and invoices 
 that he has in his possession, and to produce 
 any and all invoices and other papers under his 
 control or which he can reasonably get, and he 
 is not bound to send to those from whom he 
 purchased and obtain new invoices. N. Y. 
 Supr. Ct., 1875, O'Brien v. Commercial F. Ins. 
 Co., 38 N. Y. Supr. (6 J. & Sp.) 517. 
 
 70. — as to repairs. Conditions in a policy 
 limiting the liability of the insurer will not be 
 extended by implication, so as to include eases 
 not clearly or reasonably within the very words 
 of the condition, as such words are ordinarily 
 used and understood. Ct. App., 1874, Rann v. 
 Home Ins. Co., 59 N. Y. (14 Sick.) 387. 
 
 71. Thus, under a condition that work in 
 altering or repairing the premises will vitiate 
 the policy, unless permission therefor is indorsed 
 on the policy, but allowing five days in each 
 year for " incidental repairs " on dwelling houses, 
 without notice of indorsement, the putting on of 
 new siding in place of that which is old and 
 decayed, will be held to be incidental repairs 
 within the meaning of the policy, and will not 
 vitiate it. lb. 
 
 72. — as to suit. A condition in a policy, | 
 
 that no action shaU be sustainable on such 
 policy, unless commenced within six months 
 after the loss occurs, is valid and will be enforced 
 by the courts. N. Y. Supr. Ct, ISIS, O'Brien v. 
 mchanic, i- Traders F. Ins. Co., 45 How. 453 ; 
 S. C, 14 Abb. N. S.314f 86 N. Y. Supr. (4 J. 
 
 &Sp.) 110. • ^ , ^.^, 
 
 73. as to statement of title. A non- 
 compliance with a condition in the policy, that 
 the application must state the nature of the 
 estate of the insured, if less than a fee, does not 
 affect the validity of the poUcy, where no 
 question as to the nature of such title is inserted 
 in the form of application furnished by the 
 company, even though the title of the insured is 
 merely equitable under a contract of sale on 
 which a payment has been made. Sup. Ct., 1871, 
 Dohn V. Farmers J. S. Ins. Co., 5 Lans. 275. 
 
 74. A statement 4>y an applicant, holding such 
 equitable title, that he is the owner of the prem- 
 ises, is not such a misrepresentation as will 
 avoid the policy. lb. 
 
 75. — as to statement as to incum- 
 brances. A vendor's lien for unpaid purchase- 
 money is not such an incumbrance as the 
 applicant is required to state, under a condition 
 that he shall state whether the property was in- 
 cumbered and to what amount. lb. 
 
 76. — as to transfer of policy as col- 
 lateral. When, under an executory contract 
 for the sale of lands, containing an agreement 
 by the vendee to pay the expense of a certain 
 amount of insurance on the property, the vendor 
 effected an insurance in his own name, deduct- 
 ing the premiums paid'from the annual payments 
 made by the vendee ; — Held, that the policy 
 was not held as collateral security, within the 
 meaning of those terms in a condition of the 
 policy. Ct. App., 1871, Wood r. North Western 
 Ins. Co., 46 N. Y. (1 Sick.) 421. 
 
 77. — as to waiver of conditions. A 
 provision in a policy that no act or omission of 
 the company, or any of its officers or agents, 
 shall be deemed a waiver of a full and strict 
 compliance with the requirements thereof as to 
 the preliminary proofs of loss, unless the waiver 
 be in express terms in writing, signed by the 
 president or secretary of the company, is directly 
 in conflict with the settled rules of law establish- 
 ed for the government of that class of cases ; 
 and the party accepting a policy containing such 
 clause cannot be held to have renounced the 
 benefit of the settled rules of law on that subject, 
 unless it is shown that his attention was directed 
 to that clause. Sup. Ct, 1811, Pitnet/ v. Glens 
 Falls Ins. Co., 61 Barb. 335. 
 
 78. Waiver of conditions. A condition 
 inserted in an insurance policy for the benefit of 
 the company, may be waived by the general 
 agent of the company, and such waiver may be by 
 parol, notwithstanding a provision in the policy 
 that nothing but a written agreement, signed by 
 an officer of the company shall have that effect. 
 Sup. Ct., 1875, Van Allen v. Farmers Joint Stock 
 Ins. Co., 4 Hun, 413. 
 
 79. The general agent of an insurance com- 
 pany has power to waive compliance with the 
 condition of a policy, that the insured shall, 
 within 10 da^s after a loss, deliver to the com- 
 pany a particular account thereof, signed and 
 verified by him, and if, within such 10 days, he 
 uses to the insured language which is calculated 
 to, and does induce the latter to delay the prep- 
 aration and forwarding of such proofs until 
 after the 10 days have expired, he does waive 
 it. Sup. Ct., 1871, Dohn v. Farmers J. S. Ins. 
 Co., 5 Lans. 275. 
 
INSURANCE, FIRE. 
 
 401 
 
 80. The rejection by the company of the 
 claim of the insured after the expiration of the 
 10 days, upon otlier grounds than the failure to 
 furnisli the proofs within the time required, is 
 also a waiver of that condition. lb. 
 
 81. Notwitlistanding a provision in a policy 
 requiring any waiver to be in writing, the com- 
 pany may waive defects in the proofs by its 
 acts ; and, where the proofs furnished expressly 
 offer to supply any other information that may 
 be required " on call," a neglect to respond to 
 such offer while the defects may be corrected 
 and supplied, should be deemed a waiver there- 
 of. Sup. Ct., 1871, Pitney v. Glens Falls Ins. Co., 
 61 Barb. 335. 
 
 82. Where the agent of an insurance com- 
 pany, authorized to receive premiums and issue 
 policies and renewal receipts, receives from the 
 party insured the premium for a renewal of his 
 policy, with knowledge of other insurance on 
 the same property, issues a renewal receipt 
 therefor, and the money is paid over to and re- 
 tained by the company, those facts constitute a 
 waiver of a requirement in the policy that formal 
 notice of any such insurance shall be given and 
 an indorsement made on the policy. Ct. App., 
 1868, Carroll v. Charter Oak Ins. Co., 10 Abb. 
 N. S. 166. S. P., Pechner v. Phomix Ins. Co., 6 
 Lans. 411. 
 
 83. They are also a waiver of a provision in 
 the policy, that no condition can be waived, ex- 
 cept in writing signed by the secretary ; it being 
 within the general scope of the authority of the 
 agent, and the company being chargeable with 
 notice of facts known to him, and bound by the 
 receipt and retaining of the money as a ratifica- 
 tion of his acts. lb. 
 
 84. It is not essential that the notice of other 
 msurances should have been given to the agent 
 before the renewal receipt was issued, but it is 
 sufficient that it was given to him while acting 
 in the transaction of business for his principal. 
 lb. 
 
 85. So, also, the failure of the agent to object 
 to the omission of the indorsement of the other 
 insurances, on notice thereof, on consenting to 
 an assignment or a renewal of the policy is a 
 waiver of that condition. Sup. Ct., 1872, Pechner 
 V. Phoenix Ins. Co., 6 Lans. 411. 
 
 86. Such a waiver or assent extends also to 
 new and different insurances to the same aggre-. 
 gate amount as those then existing, taken out 
 after they had expired. lb. 
 
 87. Insuring premises with knowledge that 
 there are no fixtures in them for the use of other 
 gas, and that the tenant preceding the assured 
 used spirit gas is not to be construed as a waiver 
 of a clause in the policy prohibiting the use of 
 spirit gas, or as a permission to use such gas. 
 N- Y. Supr. Ct., 1874, Minzesheimer v. Continental 
 Ins. Co., 37 N. r. Supr. (5 J. & Sp.) 332. 
 
 88. A condition in a policy tliat it shall not 
 be binding until actual payment of the premium, 
 may be waived by parol ; and the waiver may 
 be shown by direct proof that credit was given, 
 or may be inferred from circumstances, and it 
 may be by the company or any of its authorized 
 agents. Com. App., 1872, Bodine v. Exchange 
 Fire Ins. Co., 51 N. T. (6 Sick.) 117. 
 
 89. A clerk or assistant in the oflSce of an 
 agent who, with the consent of the latter, has 
 been in the habit of procuring from the companj- 
 and delivering policies and renewal certificates, 
 and to whom such a certificate is entrusted for 
 delivery, has power to bind the company by a 
 waiver of payment. lb. 
 
 90. Where a policy of insurance, containing 
 
 26 
 
 a clause stating that the premium is due and 
 payable on delivery of the policy, but where 
 credit is given to the extent of four months, un- 
 less the premium is paid within that time, the 
 company will not be liable for a loss occurring 
 tliereafter, is issued without requiring payment 
 and without fixing any time of credit, by an 
 agent having no authority to waive conditions, 
 but at the same time the premium on a previous 
 policy issued in a similar manner is paid and ac- 
 cepted after the expiration of the four months, 
 there is sufficient evidence of a waiver of the 
 condition to be submitted to the jury in an ac- 
 tion on the policy for a loss, occurring more 
 than four months after its date and before pay- 
 ment of the premium, and to sustain a verdict 
 finding such waiver. Ct. App., 1875, Bowman v. 
 Agricultural Ins. Co., 59 N. Y. (14 Sick.) 521. 
 
 91. An agent of an insurance company, au- 
 thorized to fill blanks in policies, to issue and 
 renew the same, and to fix the rates of pre- 
 miums, and receive and remit them to the com- 
 pany, has power to bind the company by a parol 
 agreement for insurance, and to waive the fee 
 payment of the premiums, although the policy 
 provides that the risk shall not commence until 
 the actual payment thereof. Sup. Ct., 1875, 
 Hotchkiss V, Germania F.Ins. Co., 5 Hun, 90. 
 
 92. A condition in a policy, that it shall be- 
 come void in case repairs or additions are made 
 without the consent of the company noted oni 
 the policy, is to be deemed waived if the agent 
 of the company knows of such repairs and alter- 
 ations when being made, and does not object 
 thereto. lb. 
 
 93. Where a risk was taken upon a vacant 
 building, the insurance company and its agent 
 knowing that it was vacant and would remain 
 so for several months, to which the agent con- 
 sented, and the owner and mortgagee being 
 ignorant that the policy contained a condition 
 requiring consent to be indorsed on the policy : 
 — Held, that the condition was waived, and the 
 company estopped from asserting it against such 
 policy. Ct. App., 1876, Cone v. Niagara F. Ins. 
 Co., 60 N. Y. (15 Sick.) 619. 
 
 94. Under a policy which states that "no 
 agent of the company is permitted to give con- 
 sent of the company " in any case except assign- 
 ments, "or to waive any stipulation or condition 
 therein contained," a mere local agent cannot 
 waive a condition that the policy shall be void 
 in case the dwelling house becomes vacated ; 
 and the company is not bound by his assurance 
 to the assured, on being notified of an expected 
 vacation of the premises and of a loss of the pol- 
 icy, " that he had a record of the policy, and 
 that there would be no trouble about it." Sup. 
 Ct., 1875, Thayer v. Agricul. Ins. Co., 5 Hun, 
 566. 
 
 IV. Eepeesentations bt assuked. 
 
 95. Distinction between representa- 
 tion and ■warranty. In the law of insurance, 
 a warranty is a stipulation inserted in the poli- 
 cy, or in another writing referred to therein and 
 made a part thereof, on the literal truth or ful- 
 filment of which the validity of the entire con- 
 tract depends ; while a representation is a verbal 
 or written statement, made by the insured to the 
 imderwriter before the subscription of the policy, 
 as to the existence of some fact or facts tending 
 to induce the latter more readily to assume the 
 risk. Sup. Ct., 1862, Pierce v. Empire Ins. Co., 
 62 Barb. 636. 
 
402 
 
 INSURANCE, FIRE. 
 
 96. When the policy makes the application 
 a part of itself, the statements therein are war- 
 ranties, and a compliance with them conditions 
 precedent to the right to recover on the policy 
 in case of loss. lb. 
 
 97. Knowledge of the interest of the insured 
 in the property or premises is important to the 
 insurer, and when the insured is called on by the 
 application to state such interest truly, and it is 
 stated untruly, the statement made is a warranty, 
 and if it is untrue the policy is void. lb. 
 
 98. Where the applicant stated that she 
 owned the property and disclosed no inferior 
 interest ; — Beld, that sncli statement was a war- 
 ranty that she was the owner in fee, and her 
 interest being in fact merely equitable, she could 
 not recover on the policy. lb. 
 
 99. The misconduct of the insurance agent 
 in not reading over the application or stating its 
 contents to the applicant, who was illiterate, 
 does not relieve her from her part of the con- 
 tract; nor can the company be held responsible 
 therefor. lb. 
 
 100. When not adopted and made the basis 
 of the contract, so as to constitute warranties, 
 statements contained in an application for in- 
 surance are to be treated as representations, not 
 prejudicing the rights of the assured unless they 
 are material to the risk, untrue, and made in 
 bad faith. Ct. App., 1874, Owens v. Holland 
 Purchase Ins. Co., 56 N. Y. (11 Sick.) 565. 
 
 101. Where an application closed with a cove- 
 nant and agreement by the applicant " that the 
 ■foregoing valuation, description and survey are 
 true and correct, and they are submitted as his 
 warranty and a basis for the desired insurance," 
 but the only reference to such application in the 
 policy issued thereon was in the clause specify- 
 ing the insurance as being "on the following 
 property described in application," — Held, that 
 the only part of the application adopted was 
 that which described the property, and that 
 statements therein respecting the value of the 
 premises were mere representations. lb. 
 
 102. Statements in application. A policy 
 which refers to tlie application " for a more full 
 and particular description and forming a part of 
 this policy," and declares that the policy is made 
 and accepted with reference to the terms and 
 conditions therein contained and thereto annex- 
 ed, which it declares are a part of the contract, 
 makes such application a part of the policy, and 
 all substantial statements therein which relate 
 to the risk are warranties in respect to the facts 
 specified or clearly referred to therein. Sup. 
 Ct., 1869, Shoemaker v. Glens Falls Ins. Co., 60 
 Barb. 84. 
 
 103. Where the conditions annexed require 
 applications for insurance to be in writing, 
 and provide tliat any misrepresentation, conceal- 
 ment, suppression or omission of facts or cir- 
 cumstances known to the insured, increasing the 
 hazard, shall a-void the policy ; and the applica- 
 tion contains a statement at the foot of it, that 
 the same " is a just, full and true exposition of 
 all the facts and circumstances in regard to the 
 condition, situation, value and risk of the prop- 
 erty to be insured, so far as the same are 
 known to the applicant and are material to the 
 risk," such covenant is a warranty of the truth 
 of the facts stated in such application. lb. 
 
 104. The question of the materiality of a 
 statement made by the assured, when- it arises 
 upon a representation not connected with a war- 
 ranty, is a question of fact for the jury; but 
 where there is a specific inquiry in the applica- 
 tion and a positive answer, as, in regard to the 
 
 existence of an incumbrance by mortgage, the 
 parties make it material as a matter of contract, 
 and a false statement that there is no mortgage 
 on the premises, avoids the policy. lb. 
 
 105. In an action upon a policy of insurance, 
 which provided that if an application or survey 
 is referred to therein it shall be considered a 
 part of the contract and a warranty by the 
 assured, but which did not refer to the applicar 
 tion, where the complaint alleged the agree- 
 ment for insurance was founded upon the appli- 
 cation, and sought to have the policy reformed 
 in a particular wherein it differed from the ap- 
 plication, — Held, that such allegation did not 
 necessarily make the application a part of the 
 policy as to other matters. Sup. Ct., 1872, Weed 
 V. Schenectady Ins. Co., 7 Lans. 452. 
 
 106. Under a provision in a policy, that " when 
 a policy is made and issued upon a survey and 
 a description of certain property, such a survey 
 and description shall be taken and deemed to be 
 a part and portion of such policy, and a war- 
 ranty on the part of the assured," a clause 
 describing the property as " known as the M. 
 Mills, per survey No. 18,611, filed in the office of 
 the P. Ins. Co." does not simply refer to such sur- 
 vey for a description of the property, but makes 
 it the basis of the contract of insurance. Sup. 
 Ct., 1876, Steward v. Phosnix F. Ins. Co., 5 Hun, 
 261. 
 
 107. Under a policy which provides that in 
 case of the use of the premises for " any trade 
 or occupatioh — denominated hazardous, or extra- 
 hazardous, in any of the printed classes of 
 hazards annexed to the policy," except as spe- 
 cifically provided for therein, or agreed upon in 
 writing, the policy shall be void, and declares 
 those terms and conditions a part of the policy, 
 the description of the insured premises in the 
 policy simply as " a dwelling-house," is a war- 
 ranty that the building is used as a dwelUng- 
 house, and exclusively as such, and that no 
 trade or occupation denominated hazardous or 
 extra-hazardous in or by the policy was carried 
 on therein. Sup. Ct., 1871, Sarsjkld v. Metro- 
 politan Ins. Co., 42 How. 97 ; S. C, 61 Barb. 479. 
 
 108. In such a case, the use of part of the 
 premises as a billiard saloon, restaurant a:nd bar, 
 those uses being within the classes denominated 
 extra-hazardous by the policy, is a breach of the 
 warranty, and renders the policy void. lb. 
 
 109. The insurance company is not estopped 
 from setting up that defense by the fact that 
 the insured told the agent of the company that 
 there was a billiard-room in the upper part of 
 the building, and the lower part was used as a 
 dwelling-house, when in fact part of the lower 
 rooms were used as a biUiard-room, restfiurant 
 and bar, and the papers were made out by the 
 agent without a personal inspection of the preni- 
 ises. lb. 
 
 110. fUnder a policy referring for a descrip- 
 tion of the risk to an application on file in the 
 office of another company, the insured cannot 
 recover in case such application is shown to be 
 false, although he was ignorant of its contents, 
 or supposed it to be another or different paper. 
 Ct. App., 1871, LeRoy v. Market Fire Ins. Co., 
 45 N. Y. (6 Hand,) 80. 
 
 111. Although such application was drawn by 
 the agent issuing the policy, yet, being so drawn 
 while he was acting for another company, his 
 act is in no sense the act of the company insur- 
 ing, and the latter is not estopped from showing 
 its falsity. lb. 
 
 112. Statement aa to place. The state- 
 ment of the location of the property insured. 
 
INSURANCE, FIRE. 
 
 403 
 
 written in tlie policy in accordance with the in- 
 structions of the insured, is a warranty, and its 
 truth is a condition precedent to the liability o{ 
 the insurer, though it njay be subject to no 
 greater risk in its actual location, and would 
 have been taken there at the same rates. N. Y. 
 Supr. Ct., 1873, Bryce v. Lorillard Fire Ins. Co., 
 
 35 N. Y. Supr. (3 J. & Sp.) 394 ; AfE'd, S. C, 46 
 How. 498 ; 55 N. Y. (10 Sick.) 240. 
 
 113. 'So AeW where the goods were stated to 
 be in letter " C, Patterson stores," that letter 
 being the designation of one section of a ware- 
 house, when in fact they were in section " A " 
 of the same warehouse, and section " C " was 
 first burnt. lb. 
 
 114. The character of a warranty, as such, 
 does not depend on the degree of obscurity or 
 perspicuity of its expression. lb. 
 
 115. In this case there would not be enough 
 left, after rejecting the false description, to con- 
 stitute an adequate, sufiioient description, point- 
 ing out with convenient certainty the property 
 intended. lb; 
 
 116. — as to title. Where an applicant for 
 insurance, in answering questions in the appli- 
 cation as to the title of the property, states in 
 substance that he is the owner and no other 
 person is interested therein, but, to a question 
 whether there are incumbrances on it, simply 
 says, " held by contract," the former statements 
 are so qualified by the latter, as to preclude the 
 insurer from asserting a warranty of absolute 
 ownership or exclusive interest, and if such 
 answer is true there is no breach of warranty 
 in that respect. Ct. App., 1874, McCulloch v. 
 Norwood, 58 N. Y. (13 Sick.) 562 ; Eer'g S. C, 
 
 36 N. Y. Supr. (4 J. & Sp.) 180. 
 
 117. — as to 'watchman. The insured is 
 not absolved from the warranty in his survey, 
 which was made part of his policy, that he 
 will keep a watchman in the premises at night, 
 by the fact that the sheriff has taken posses- 
 sion thereof under process against him, he not 
 being thereby absolutely prevented from keep- 
 ing the watchman there. Sup. Ct., 1871, First 
 Nat. Bank of Ballston Spa v. Insurance Co. of 
 North America, 5 Lans. 203 ; AfE'd, S. C, 50 
 N. Y. (5 Sick.) 45. 
 
 118. The fact that the sheriff and one of the 
 trustees of the assured remained at night in an 
 office two rods from the mill insured, and twice 
 entered and examined it the night it took fire, 
 was not a compliance with the warranty, they 
 not having undertaken the duty of watchmen. 
 lb. 
 
 119. Statement filled by insurance agent. 
 Where the agent of an insurance company ap- 
 plies to the owner of a dwelling house to let 
 him insure it, knowing at the time that it is un- 
 occupied, and, upon his consenting, the agent 
 fills out the application, writes all the answers 
 to questions proposed, and has the applicant 
 sign it, such agent acts for the company in fill- 
 ing up the application, and an answer therein 
 to the question : " Occupation. For wliat is the 
 building used, and how many tenants are 
 there t " by the word, " Dwelling," is not a 
 warranty that the building is then used as a 
 dwelling, but simply that it is a dwelling house 
 and to be thereafter used as such. Sup. Ct., 
 1874, Alexander v. Germania F. Ins. Co., 2 Hun, 
 655. 
 
 120. A provision in the policy, that any per- 
 son, other than the assured, who might have 
 procured the insurance to be taken, should be 
 deemed the agent of the assured and not of the 
 company, must be held to relate to that class of 
 
 persons known as insurance brokers, whose 
 business it is to effect insurance for other per- 
 sons, and who are not agents for either party 
 except in the particular case, and does not 
 make the company's agent in such a case the 
 agent of the assured. lb. 
 
 V. ASSIONMKNT OF POMOT, AND BIOHTS OF 
 
 ASSIQNBE. 
 
 121. Action by assignee. An insurance 
 company or the receiver of its effects, against 
 whom a claim is made upon a policy issued by 
 such company, which is not clearly untenable, 
 may purchase and take by assignment from the 
 claimant a policy issued to him by another com- 
 pany on the same property, and prosecute the 
 same. Ct. App., 1873, Excelsior F. Ins. Co. v. 
 Royal Ins. Co., 55 N. Y. (10 Sick.) 343. 
 
 122. Where a vendee of lands, bound by con- 
 tract to insure the premises for the benefit of 
 his vendor, effects an insurance in his own 
 name, an assignee of the rights of the vendor 
 may, in case of a loss, after notice to the com- 
 pany of his claim, maintain an action upon tlie 
 policy, notwithstanding the company, may, after 
 such notice given, have paid tlie amount of the 
 loss to the vendee. Com. App., 1870, Cromwell 
 V. Brooklyn Fire Ins. Co.,Ai N. Y. (5 Hand,) 42. 
 
 123. The liability of the company is not based 
 upon an implied assignment of the policy, but 
 on the ground that they, by reason of the facts, 
 became trustees for the assignee of a fund 
 which they were equitably bound to pay over, 
 lb. 
 
 124. Where the owner of premises leased 
 them to another with the privilege of purchas- 
 ing at a specified price, and he paid an instal- 
 ment of the rent in advance, proposing to make 
 improvements, and procured a policy of insur- 
 ance in terms insuring the owner, loss, if any, 
 payable to the lessee, for the benefit of both, 
 and a loss occurring before he had made any 
 improvements, he assigned his interest in the 
 policy to the owner ; — Held, that the latter was 
 entitled to recover the full amount of the loss 
 upon due notice and proofs. Com. App., 1874, 
 Hand v. Williamsburgh City F. Ins. Co., 57 N. 
 Y. (12 Sick.) 41. 
 
 VL Loss AND PROCEEDINGS THEREON. 
 
 125. Proofs of loss are not a part of the 
 contract of insurance nor of any contract, nor 
 do they create the liability to pay the loss ; but 
 they merely set running the time at the end of 
 which the insurance money shall become pay- 
 able, and at which action may be brouglit to 
 enforce the liability. Ct. App., 1873, McMaster 
 V. Prest, etc. of Insurance Co. of N. America, 55 
 N. Y. (10 Sick.) 222 ; Afl'g S. C, 64 Barb. 222. 
 
 126. A statement in the proofs of loss, tliat 
 there was " otlier insurance " on the same prop- 
 erty, is not a statement that the assured himself 
 had other insurance, so as to show a breach of 
 a condition in the policy, that if the assured 
 shall have made any other insurances, the policy 
 shall be void ; and it does not estop the assured 
 from showing that it was a mistake, and that 
 he had, in fact, no other insurance. lb. 
 
 127. Where a mortgagee procures the mort- 
 gaged property to be insured for his own bene- 
 fit, though in the name of the mortgagor, loss. 
 
404 
 
 INSURANCE, LIFE AND ACCIDENT. 
 
 if any, payable to himself, and afterward be- 
 comes the owner of the property, and the policy 
 is continued for his benefit by consent of the 
 company, he is the proper person to make the 
 proofs in case of a subsequent loss. Sup. Ct, 
 
 1873, Pratt v. N. Y. Cent. Ins. Co., 64 Barb. 
 589 ; Aff'd, S. C, 55 N. Y. (10 Sick.) 505. 
 
 128. If proofs made by liim, under the direc- 
 tion of the company's agent, are delivered to 
 and retained by the company, a subsequent no- 
 tice to liira that they are not in conformity with 
 the conditions of the policy, and they decline to 
 recognize them, without specifying the defects, 
 does not make it his duty to furnish additional 
 proofs. lb. 
 
 129. Apportionment. Under a clause in a 
 policy that, in case of loss, the insured shall 
 not recover more than the proportion thereof 
 whicli the amount thereby insured bore to the 
 wliole amount of insurance, the insured is not 
 bound to keep up other insurance whicli he has 
 on the premises, but may cancel it at his own 
 pleasure or suffer it to become void by failure 
 to give notice of the new insurance as provided 
 in tlie prior policy, and in such case the last in- 
 surer is not entitled to have the loss apportioned, 
 but is liable for the full amount. Com. App., 
 
 1874, Hand v. Williamsburgh City F. Ins. Co., 57 
 N. Y. (12 Sick.) 41. 
 
 130. Whexe several parcels are insured to- 
 gether by one policy for an entire sum, and one 
 of them is insured separately by another policy, 
 the sum insured by the first-mentioned policy, 
 in case of a total loss of the whole property in- 
 sured by both, is for the purpose of apportion- 
 ment, to be distributed among the several par- 
 cels in the proportion which tlie sum insured by 
 that policy bears to the total value of all the 
 parcels. Ct. App., 1872, Ogden v. East River In- 
 surance, 50 N. Y. (5 Sick.) 388. 
 
 131. Where tlie amount separately insured, 
 added to the amount so distributed to that par- 
 cel, is less than the actual value of the parcel, 
 there is no over-insurance and no occasion for 
 apportionment. lb. 
 
 132. Iioss payable to incumbrancer. 
 "Where an owner procures an insurance upon 
 premises, loss, if any, payable to an incumbran- 
 cer, it is the owner's interest that is insured, 
 and the company is bound to pay the loss there- 
 to, notwithstanding the incumbrance may have 
 been paid in wliole or part from other sources, 
 and is not entitled to any deduction on account 
 of such payment, or to subrogation to the se- 
 curities of such incumbrancer, as it might have 
 been if it had merely insured his interest. Ct. 
 App., 1875, Corie v. Niagara F. Ins. Co., 60 N. Y. 
 (15 Sick.) 619. 
 
 133. "Where a mortgagee, on default of the 
 mortgagor to insure as provided by the morl> 
 gage, procured an insurance on " his interest as 
 mortgagee " in the buildings on the mortgaged 
 premises, the policy providing " that in ease of 
 loss the assured shall assign to this company an 
 interest in said mortgage equal to the amount 
 of loss paid," and upon the occurrence of a loss, 
 the company took an assignment of the mort- 
 gage, paying the mortgagee the amount due 
 thereon, and sought to enforce it by action ; — 
 Held, that the company were bound to pay the 
 loss notwithstanding the taking of such assign- 
 ment ; that the amount to be paid was to be 
 applied as payment on the mortgage, first upon 
 the interest, and then upon the principal ; and 
 that the company was the owner of the balance 
 due on the mortgage ; but as nothing remained 
 due, in this case, at the commencement of the 
 
 action, after such application, the action could 
 not be maintained. Sup. Ct., 1816, Foster v. Van 
 Reed, 5 Hun, 321. 
 
 INSURANCE, LIFE ANB ACCIDENT. 
 
 1. Assured, -who is. "Where the application, 
 which by the terms of the policy, becomes a 
 part thereof, is made by one party for insurance 
 on the life of another, and names the applicant 
 as the party for whose benefit the insurance is 
 proposed, and the policy recites that the consid- 
 eration was paid by him, the promise to pay 
 the amount to the assured must be deemed to be 
 made, to and for the benefit of the applicant. 
 Sup. Ct., 1871, Smith v. JEtna Life Ins. Co., 5 
 Lans. 645. 
 
 2. A wife has an insurable interest in the life 
 of her husband, and can enforce a policy procur- 
 ed by her husband in her name as the assured, 
 without previous authority, if subsequently ac- 
 cepted by her. Ct App., 1871, Thompson v. 
 American Tontine Life and Savings Ins. Co., 46 
 N. Y. (1 Sick.) 674. See ch. 821, Laws of 
 1873. 
 
 3. Assignment, effect of. An assignment 
 by husband and wife of a policy of insurance on 
 the' life of the husband, procured by him for the 
 benefit of the wife, made to a creditor of the 
 husband to secure his debt, does not affect the 
 right of the wife to the insurance money. Sup. 
 Ct., Sp. T., 1875, Barrg v. Mutual L. Ins. Co., 
 49 How. 504. 
 
 4. If the assignee, by collusion with the hus- 
 band, and without the knowledge or consent of 
 the wife, procures such policy to be cancelled 
 and a new one to be issued to himself but in 
 other respects identical with the old one, without 
 any new consideration, the wife will be adjudg- 
 ed to be equitably the owner thereof, and en- 
 titled to the insurance money ; and if the 
 assignee, after appearance and answer in an ac- 
 tion by the wife, commences a suit against the 
 company in another State, the court will enjoin 
 him from prosecuting it, or from enforcing a 
 judgment recovered therein. lb. 
 
 5. Contracts of agent, 'when binding. 
 An agreement made between the agent of a life 
 insurance company, having authority merely to 
 solicit and make contracts for insurances, and 
 an applicant, that his company will insure the 
 applicant by a policy containing special provi- 
 sions for allowing him to withdraw and refund- 
 ing the premiums paid, does not constitute a 
 contract between the company and the appli- 
 cant, and he may refuse to accept a policy not 
 containing such provisions, and recover back 
 money which he has been compelled to pay on 
 a note given by him for premium. Sup. Ct., 1871, 
 Tijffl V. Ph(mix Mut. L. Ins. Co., 6 Lans. 198. 
 
 6. An agreement made by a general agent of 
 a life insurance company with a physician- to in- 
 sure his life, and to employ him as examining 
 pliysician, and allow his services as payment of 
 the premiums, is an extraordinary one, not cus- 
 tomary nor within the scope of the powers of 
 such agents, and unless expressly authorized or 
 subsequently ratified by the company, it is in- 
 valid, and the premium note given and the policy 
 issued in pursuance thereof, are void. Sup. Ct., 
 1873, Anchor Life Ins. Co. v. Pease, 44 How. 
 385. 
 
 7. Conditional contract. A wife presented 
 
INSURANCE, LIFE AND ACCIDENT. 
 
 405 
 
 to an agent of a foreign company a proposal for 
 insurance upon the life of her husband, paid the 
 premium, and received a receipt, acknowledging 
 the payment and- reciting that the proposal 
 would be forwarded at once to the home office 
 for acceptance, and if accepted a policy would 
 be issued in accordance therewith; if declined 
 tlie premium would be returned, but in case the 
 husband should die before the decision of the 
 head of&ce was received, the sum insured would 
 be paid. The proposal was accepted, and the 
 policy issued and forwarded to the agent to be 
 executed and delivered. The agent executed, 
 but declined to deliver it, on the ground of an 
 unfavorable change in tlie health of the assured, 
 basing his refusal on general instructions to that 
 effect from the company, — BeU, that in case of 
 her husband's death the wife was entitled to 
 recover, and it was immaterial whether the action 
 was to be regarded as one upon the policy, or 
 for damages upon the contract to issue a policy. 
 Ct. App., 1B72, Fried v. Royal Insurance Co., 50 
 N. Y. (5 Sick.) 243. 
 
 8. Contract to re-insure. Where one life 
 insurance company agreed with another to re- 
 insure it on all its outstanding risks, and to pay 
 to the holders of its policies such sums as the 
 latter might become liable to pay thereon, — 
 Held, that the holder of such a policy might 
 maintain an action, in case of death, upon such 
 agreement ; and that his right to recover thereon 
 would not be affected by the fact tliat the com- 
 pany thereby re-insured had previously procured 
 policies of re-insurance upon such risk, in other 
 companies, and after the loss had collected the 
 same. Ct. App., 1874, Glen v. Hope Mutual Life 
 Insurance Co., 56 N. T. (11 Sick.) 379. 
 
 9. Construction of policy. Under a policy 
 containing a proviso avoiding it in case the as- 
 sured shall die in the known violation of any 
 law, in order to bar a recovery, it must appear, 
 not only that the insured was violating the law, 
 but that such violation was the proximate cause 
 of his death. Ct. App., 1871, Bradley v. Mutual 
 Benefit Life Ins. Co., 45 N. Y. (6 Hand,) 422 ; 
 Eev'g S. C., 3 Lans. 341. 
 
 10. Although the death of the insured is pro- 
 voked by his unlawful act, that will not avoid 
 the policy, where it appears that the provoca- 
 tion was wholly inadequate to justify the vio- 
 lence used in return. Gkovek, J., dissents. lb. 
 
 11. Where it appeared that the assured was 
 shot by a husband, with whose wife he had had 
 criminal intercourse, not while in the act of 
 adultery but immediately afterward, and as he 
 was about to go away, — Held, that he did not 
 " die in consequence of his violation of any 
 law," within the meaning of a clause in his 
 policy rendering it void in case of such a death. 
 Sup. Ct., 1875, Goetzman v. Conn. Mut. L. Ins. 
 Co., 3 Hun, 515. 
 
 12. Suicide does not avoid a policy of insur- 
 ance, unless it contains a stipulation to that 
 effect. The terms " in the known violation of 
 the law of any State," cannot be construed to 
 include suicide. Sup. Ct., 1875, Patrick v. Ex- 
 celsior L. Ins. Co., 4 Hun, 263. 
 
 13. Under a clause in a life policy rendering 
 it null and void in case the assured should " die 
 by his own hand," the company is not liable if 
 the assured takes his own life by his voluntary 
 act, designed to that end, and was sufficiently 
 sane to realize the consequences of the means 
 employed by him. Sup. Ct., 1870, Fowler v. 
 Mutual Life Ins. Co., 4 Lans. 202. S. P., McClure 
 V. Mut. Life Ins. Co. ofN. Y., 55 N. Y. (10 Sick.) 
 165. 
 
 14. Where, in an action upon a life policy, 
 the evidence clearly shows that the assured shot 
 himself of deliberate purpose, well knowing the 
 consequences to be produced by his acts, it is 
 not error to refuse to submit to the jury the 
 question of liis sanity, even though there is 
 some evidence of a morbid mental state with a 
 tendency to insanity in the deceased. lb. 
 
 15. Where a policy of life insurance contains 
 the usual proviso against self-destruction, to 
 take*, case out of it the assured must have been 
 insane to such a degree as to render him un- 
 conscious that the act he did would cause his 
 death, or he must have committed it under, the 
 influence of some insane impulse which he could 
 not resist. It is not sufficient that his moral 
 sense was so impaired as to deprive the act of 
 its criminal character. Ct. App., 1873, Van 
 Zundt V. Mutual Benefit Life Ins. Co., 55 N. Y. 
 (10 Sick.) 169. 
 
 16. Payment of premiums. A policy 
 wliicli designates certain days for the payment 
 of the semi-annual premiums, but declares that 
 it is issued and accepted upon the express condi- 
 tion, among others, " that the premiums shall 
 be paid on or before the days upon which 
 they become due, or within 35 days there- 
 after," and also contains a provision that in 
 case of a violation of any of its conditions it sliall 
 become null and void, and a provision that from 
 the amount to be paid in case of the death 
 of tlie assured, tliere shall be deducted the 
 balance of the year's premium, and all indebted- 
 ness of tlie assured, does not become void upon 
 failure to pay the premiums until 35 days 
 after the days fixed therefor. N. Y. Supr. Ct., 
 1875, Warden v. Guardian Mut. Ins. Co., 39 N. Y. 
 Supr. (7 J. & Sp.) 317. 
 
 17. A payment of a semi-annual premium 
 24 days after it became due, made by 
 the brother of the assured in pursuance of 
 a request from the latter, saves the forfeiture, 
 even though made after the death of the assured, 
 and in such a case the policy would have been 
 good without the payment. lb. 
 
 18. Where the policy imposes no restriction 
 as to who shall make the payments, the right to 
 make it cannot be claimed to be personal to the 
 assured. lb. 
 
 19. Wliere the payment is made by another 
 in pursuance of instructions from the assured in 
 his lifetime, it cannot be claimed to be unfair or 
 in bad faith, merely because it did not reach tlie 
 insurer until after the death of tlie assured. lb. 
 
 20. Although a policy provides for a forfeiture in 
 case of the non-payment of premiums when due, 
 yet, where no place of payment is prescribed by 
 it, and the agent, at the time of dehvering it, says 
 that he will come round regularly and receive 
 them, and he does so twice, and the company re- 
 ceives the benefit thereof, and the assured lias 
 the money ready wlien the third payment be- 
 comes due, and holds on to it as previously 
 directed by such agent, having no notice that he 
 has been discharged, even though agents arc by 
 the policy authorized to receive premiums, but 
 not to discharge contracts or waive forfeitures, 
 yet the company must be held bound by tlie 
 acts of the agent, and cannot enforce a forfeiture 
 for delay in such payment. Sup. Ct., 1874, 
 O'Reilly V. Guardian Mut. L. Ins. Co., 1 Hun, 460.- 
 
 21. Where it was made a condition of the 
 the policy, that failure to pay at maturity 
 any note given for any obligation therein, 
 should avoid such policy, without notice to 
 any party interested therein, — Held, that 
 upon failure to pay such a note on the 
 
406 
 
 INSURANCE, LIFE AND ACCIDENT. 
 
 day it became due, the policy became void, 
 although the amount of it was tendered on the 
 day following, and no notice of its maturity, or 
 demand of payment had been made. N. Y. C. P., 
 1873, Roehner v. Knickerbocker Life Ins. Co., 4 
 Daly, 512. 
 
 22. Where the annual premium upon a policy 
 of insurance procured by a husband on his life 
 for the benefit of his wife, in which she was 
 named as the assured, was paid by the notes of 
 the husband, containing conditions of forfeiture 
 for non-payment at maturity ; — Held, that, on 
 default in payment of any such notes, the 
 policy became void notwithstanding a receipt for 
 the entire premium was indorsed on the policy, 
 and the wife did not know, until after her hus- 
 band's death, that it was unpaid. Ct. App., 
 1871, Baker v. Union Mut. L. Ins. Co., 43 N. Y. 
 (4 Hand,) 283. / 
 
 23. Such forfeiture is not waived by a sub- 
 sequent presentation of the note and demand 
 for payment, which is unsuccessful. lb. 
 
 24. Where a general agent of a life insurance 
 company, on the day following his appointment 
 of a sub-agent, received from the latter an appli- 
 cation for insurance on his own life, and for- 
 warded tlie same to the company for approval, 
 and at the same time asked the sub-agent for an 
 advance of money, saying that he needed it on 
 his journey, and that it could be charged to ttie 
 company on premiums thereafter to be collected, 
 which advance was thereupon made, — Held, in an 
 action on the policy issued upon such application, 
 that the advance should not be considered as an 
 individual loan, but as an advance on premiums 
 expected to be collected, including that due on 
 the policy in question, in case the application 
 was accepted, and that the action could be main- 
 tained v/itliout further payment, none but the 
 first being due. Ct. App., 1871, Thompson v. Am. 
 Tontine Life ^ S. Ins. Co., 46 N. Y. (1 Sick.) 674. 
 
 25. Provision as to residence. A policy- 
 which in the body thereof provides that the in- 
 surance shall be subject to conditions, restric- 
 tions and stipulations indorsed thereon, in the 
 same manner as if incorporated therein ; and that 
 if the assured shall depart from Europe without 
 the previous consent of the company, the policy 
 shall be void ; and which has indorsed upon it a 
 memorandum allowing the assured to reside in 
 any part of North America, north of thirty-six 
 degrees and thirty minutes north latitude, and 
 from the first of November to the first of July to 
 travel and reside south of that latitude, does in 
 effect prohibit him from travelling or residing in 
 the United States south of that line between the 
 first day of July and the first day of November, 
 and renders the policy void in case he violates 
 that prohibition. N. Y. Supr. Ct., 1871, Rainsford 
 V. Roi/al Ins. Co., 33 N. Y. Supr. (1 J. & Sp.) 453 
 
 26. A permit given Oct. 22, at the time the as- 
 sured made his application, and before the 
 policy issued, for the assured " to proceed, by 
 first-class vessel, to New Orleans, on and after 
 this date," cannot be construed to permit him 
 to remain soutli of the prescribed latitude until 
 after July 1, of the following year, and his doing 
 so will render the policy void, although he after- 
 ward returns north. lb. 
 
 27. Permit, varying policy. Where a 
 life policy contains a condition that if tlie per- 
 son insured shall pass beyond certain limits 
 therein specified without the consent of the com- 
 pany given in writing, the policy shall be void, 
 a subsequent written permission to liim " to 
 proceed to Cuba and return before April 1, 1871, 
 he to take his own risk of death from epidem- 
 
 ics," Cuba being within the prohibited limits, 
 is to be construed as using the term " epidemics " 
 in its ordinary and popular sense, and to include 
 only diseases at the time prevailing epidemically ; 
 and consequently the death of such person 
 at Havana in July, 1871, of yellow fever, not 
 then prevailing as an epidemic, is within tlie 
 risk,-and the company is liable. N. Y. Supr. Ct, 
 1873, Pohalaski v. Mutual Life Ins. Co. of New 
 York, 45 How. 504 ; S. C, 36 N. Y. Supr. (4 J. & 
 Sp.) 234. 
 
 28. Evidence is not admissible, in such a case, 
 to show conversations between the insured and 
 the president of the company, at the time the 
 permit was granted, fixing the meaning of the 
 term " epidemic " used therein, as including 
 yellow fever, whether prevailing in epidemic 
 form or not; or to show that it is properly 
 classed by physicians as an epidemic. lb. 
 
 29. War, effect of. The rule, that the 
 breaking out of war annuls contracts between 
 citizens of the States at war, has no application 
 to contracts of life insurance, unless the policy 
 insures against death while the assured is in the 
 hostile military service. It is only commercial 
 contracts, such as give aid and comfort to the 
 enemy, or are forbidden by, or are against tlie 
 policy of the government, that are void as to 
 acts to be done during the war, though the con- 
 tracts were made before the war. Ct. App., 
 1872, Sands v. New fork L. Ins. Co., 50 N. Y. 
 (5 Sick.) 626; Aff'g S. C, 59 Barb. 556. 
 
 30. Where the agreement of the policy is to 
 insure for the life of the assured, with a condi- 
 tion for forfeiture in case of nonpayment of pre- 
 miums subsequently accruing, siich condition is 
 subsequent, not precedent ; and no forfeiture 
 will arise from non-payment of the premiums 
 during the war, provided they are promptly 
 paid, with proper interest, on the return of 
 peace. War simply suspends tlie payment of 
 premiums, and tlie remedy on the policy in case 
 it becames due, until the return of peace. lb. 
 
 31. The civil war in the United States did not 
 destroy the authority of a general agent of a New 
 York ■ Life Insurance Company residing in 
 Mobile at the time it broke out, whose authority 
 to receive premiums was recognized by it after 
 the issuing of tlie President's proclamation for- 
 bidding commercial intercourse, and a payment 
 to him of a premium falling due Jan. 2, 1862, in 
 Confederate currency, was valid and effec- 
 tual, lb. 
 
 32. A contract of life insurance, with provision 
 for the payment of annual premiums during the 
 life of tlie insured, is not avoided by the occur- 
 rence of war between the countries of the in- 
 sured and the insurer, but the remedy is sus- 
 pended during hostilities, and revives upon the 
 close of the war. The condition of payment of 
 premiums is also suspended, the transmission of 
 the money being unlawful, and a tender tliereof 
 promptly upgn the return of peace will continue 
 the policy in force. Ct. App., 1872, Cohen v. 
 N. Y. Mut. Life. Ins. Co., 50 N. Y. (5 Sick.) 610. 
 
 33. The war of the rebellion had the effect to 
 excuse the payment of premiums on a policy 
 previously issued by a foreign insurance com- 
 pany domiciled here to a citizen of North Caro- 
 lina, and suspend tlie liability therefor during 
 the war, and where the assured died before the 
 close of- tlie war, no tender of the unpaid pre- 
 miums was necessary at its close, but the same 
 might be deducted from tlie policy, and the com- 
 pany would be liable for the balance. Ct. App., 
 1872, Martine v. International Life Ass. So. of Lon- 
 don, 53 N. Y. (8 Sick.) 339. 
 
INSURANCE, LIFE AND ACCIDENT. 
 
 407 
 
 S4r A concealment of material facte by an 
 applicant for insurance, as by referring to the 
 Burgeon's report in answer to the question 
 whether the applicant has had certain diseases 
 specified, where it appears that the surgeon 
 knew nothing of the facts and his report does 
 ntit specifically answ-er the question, is fatal to 
 a recovery on the policy. Sup. Ct., 1871, Smith 
 V. jStna Life Ina. Co., 5 Lans. 545 ; Afi'd, 49 N. 
 Y. (4 Sick.) 211. 
 
 86. Where the application stated that the 
 insured was in good health, and usually enjoyed- 
 good health, and that no circumstance which 
 might make the risk more than usually hazard- 
 ous was concealed or withheld, and referred to 
 the surgeon's report for answer to the question 
 whether the insured had had disease of the 
 heart, palpitation, spitting of blood, cough, &c., 
 and the examining physician reported " no 
 cough ; walking fast up stairs or up hill pro- 
 duces difficulty in breathing," but the evidence 
 showed that the insured had raised blood more 
 or less for two and a half years prior to his 
 death, and a physician had been consulted and 
 prescribed therefor, and he had failed in health 
 prior to the application, and died, three months 
 after the issuing of the policy, of pleuro-pneumo- 
 nia ; — Seld, that there was a fraudulent conceal- 
 ment and misrepresentation of material facts, 
 which avoided the policy. lb. 
 
 36. In applications for life insurance, the 
 statements of the insured concerning his health 
 or vitaKofgans, are not understood or intended 
 as warranties ; but any untrue statement or 
 concealment of facts known to him, bearingupon 
 the condition of his health, will^be a misrepre- 
 sentation or fraud, which will avoid the policy. 
 Sup. Ct., 1872, Horn v. Amicable Mut. Life Ins. 
 Co., 64 Barb. 81. 
 
 87. Thus, where an applicant, being asked to 
 name the physician usually employed by him, 
 or if he had none, then any other doctor who 
 could be applied to for information upon the 
 state of his health, replied " none," when in fact 
 there was one who had prescribed for him for a 
 severe cough of long standing, profuse expec- 
 toration and shortness of breatli, and another to 
 whom, on examination for insurance in another 
 company, he had stated that he coughed badly 
 and, at times, discharged profusely from his 
 lungs, and had night sweats ; — Seld, that there 
 was clearly a fraudulent concealment, which 
 avoided the policy. lb. 
 
 38. Where the assured in answer to questions 
 in the application : " How long since you were 
 attended by a physician 1 For what diseases ? 
 Give name and residence of such physician, 
 name and residence of your usual medical 
 attendant," said " Doct. C — has known me two 
 years ; — Have none ; only consulted Doct. C. 
 now and then for slight ailments, and taken his 
 prescriptions ; " — Held, that he could not be 
 charged with having suppressed the information 
 sought to be elicited, but the company by re- 
 ceiving the answers without objection thereby 
 walvsd fuller ones. Sup. Ct., 1875, Edingtm v. 
 Mut. Life Ins. Co. ofN. Y., 5 Hun, 1. 
 
 39. Neither is such answer untrue as to his 
 having no medical attendant, where it appears 
 that he has had prescriptions from several phy- 
 sicians during five years, but none of whom had 
 taken charge of him in a fit of sickness. One 
 who merely makes a casual prescription for a 
 friend when meeting him in the street or else- 
 where, cannot be called his medical attendant, 
 lb. 
 
 40. False statements. Where, by the 
 
 terms of a policy, tlie proposals, answers and 
 declarations of the assured are made a part of it 
 " as fully as if they had been therein recited," 
 such answers become express warranties, and, 
 if any one of them prove untrue. It will avoid 
 the policy. N. Y. C. P., 1872, Foot v. JEtna Life 
 Ins. Co., 4 Daly, 285 ; Brennan v. Security Life 
 Ins. Co., id. 296. 
 
 41. Such provision is not waived or merged 
 in a subsequent one, avoiding the policy in case 
 such answers, &c., should be found " in any re- 
 spect false or fraudulent ; " and it is only neces- 
 sary, in defense to an action upon such policy, 
 to show that they were not true. lb. 
 
 42. Where the application for insurance pro- 
 vides, that any untrue or fraudulent answers or 
 suppressions of fact shall render the policy null 
 and void, an answer by the assured in the nega- 
 tive to the question " whether he had ever had 
 paralysis," when he had in fact had two serious- 
 ly alarming attacks of that disease, is sufficient 
 to avoid the policy. Sup. Ct., 1874, Barteau v. 
 Phomix Mut. L. Ins. Co., 1 Huu, 430. 
 
 43. Inquiries as to diseases, in such applica- 
 tions, are to be considered as relating to matters 
 which affect the general health and continuance 
 of life, and not to merely temporary and occa- 
 sional physical disturbances, wliich are not sup- 
 posed to be in the minds of the parties ; but 
 when a person has suffered from a disease of 
 well marked symptoms, alarming in character, 
 and well known to affect the general health and 
 tlireaten the continuance of life, he is bound in 
 his answers to state the exact truth. lb. 
 
 44. Under a life policy issued on tlie joint 
 lives of husband and wife, upon an application 
 signed by them, both application and policy 
 providing that if the statements, declaration 
 and agreement in the application be not in all 
 respects true and correct the policy shall be 
 void, an unqualified answer in the negative to a 
 question in the application, " Have the parents 
 — brothers — of the party been afflicted with — 
 consumption, or with any pulmonary — or other 
 constitutional disease," if untrue in fact as to a 
 brother of one of the parties, avoids the policy, 
 even though such party verbally informed the 
 agent that such brother died of consumption. 
 Sup. Ct., 1874, Baker v. Home Life Ins. Co., 2 
 Hun, 402. 
 
 45. Where, upon an application by husband 
 and wife for insurance in favor of the former 
 on the life of the latter, which stated, among 
 other things, that she had never had rheumatism 
 or disease of the heart, a policy was issued con- 
 taining a provision that if any declaration in 
 the application should be found false, the policy 
 should be null and void, and in case of non- 
 payment of premiums it should cease and deter- 
 mine, and all payments made be forfeited, and, 
 after a forfeiture by non-payment of premiums, 
 the husband applied to have the policy renewed, 
 and for that purpose signed a statement in writ- 
 ing that his wife was in as good health and insur- 
 able condition as when examined for insurance, 
 and had not been sick since then ; — Held, that 
 such statement was in legal effect equivalent to 
 taking out a new policy upon the terms of the 
 old one, and repeating the representations as to 
 health, with the modification as to time ; and 
 that, such representations being in fact false, 
 the wife having in the meantime been attacked 
 with rheumatism, which brought on heart 
 disease causing her death, and being then sick, 
 the policy was void and the premiums forfeited. 
 Sup. Ct., 1875, Harris v. Equitable Life Assurance 
 So. of U. S., 3 Hun, 724. 
 
408 
 
 INSURANCE LIFE AND ACCIDENT. 
 
 46. Although a misstatement in an application 
 for life insurance will avoid the policy, without 
 reference to its materiality, yet, as to mere 
 verbal representations, the materiality of tlie 
 statement, in the absence of fraud, is the con- 
 trolling element in determining its effect, and if 
 immaterial, it will not affect the contract. Ct. 
 App., 1873, Higbee v. Guardian Mut. Life Ins, Co., 
 53 N. Y. (8 Sick.) 608. 
 
 47. In order to avoid a policy for the falsity 
 of representations on whicli it is based, where 
 such representations are not expressly or by a 
 fair construction of the papers made warranties, 
 the company must show that they are fraudu- 
 lent or untrue in a material matter. Sup. Ct., 
 1875, Cushman v. U. S. Life Ins. Co., 4 Hun, 
 783. 
 
 48. A warranty in the law of insurance is a 
 stipulation inserted on the face of the policy, or 
 in another writing referred to therein and made 
 a part of it, on the literal truth or fulfilment of 
 which the validity of the entire contract 
 depends ; while a representation is a statement 
 made by the insured to the iinderwriter before 
 the subscription of the policy. lb. 
 
 49. A policy of life insurance obtained by 
 fraudulent representations as to the health, &c., 
 of the assured, for which he is chargeable either 
 alone or in connection with others, is invalid ; 
 and such fraud may be established either by 
 direct evidence or by circumstances from which 
 the jury may infer it. Ct. App., 1873, Nat. Life 
 Ins. Co. v. Minch, 53 N. Y., (8 Sick.) 144 ; Rev'g 
 S. C, 6 Lans. 100. 
 
 50. Where an insurance is obtained on the life 
 of a married woman, upon an application made 
 by her husband as her agent, and upon fraudu- 
 lent representations made by him and by the 
 medical examiner of the company, and the in- 
 surance money is afterward paid to the husband 
 as administrator of the wife, the company, on 
 discovery of the fraud, can recover it back. lb. 
 
 51. The proper time for the company to insist 
 upon the breach of any warranty in an applica- 
 tion for a life policy is, when the claim for pay- 
 ment is made ; and mere ignorance of a fact 
 which would have enabled it to defend against 
 such claim is not such a mistake of fact as will 
 enable it to recover back the money paid on the 
 policy ; but, for that purpose, fraud in obtaining 
 the policy, of which the company was ignorant 
 at the time of the payment, or fraudulent repre- 
 sentations made to obtain the money, which 
 were designed to and did have the effect to pre- 
 vent inquiry, must lie proved. lb. 
 
 52. 'Warranty. Where a warranty is under- 
 standingly and clearly given by an insured, no 
 matter how immaterial the fact warranted may 
 be, he will be held strictly to his contract. 
 Ct. App., 1875, Fitch v. Am.Popular Life Ins. Co., 
 59 N. Y. (14 Sick.) 557. 
 
 53. But when he is thrown oft his guard and 
 induced to enter into the contract by declara- 
 tions of the insurer, such as, that nothing but 
 fraud or intentional misstatements shall avoid 
 his policy, or that payment will be contested 
 only in case of fraud, and the like, showing that 
 a warranty in the strict sense of the term is not 
 intended, although the term warranty is used in 
 respect to the statements in his application, he 
 will not be held to warrant their absolute truth. 
 lb. 
 
 54. Where the printed form of application 
 stated in substance, under the head of " Expla- 
 nation," that all that was required was good 
 faith, tliat the assurance could be jeopardized 
 only by dishonesty or inexcusable carelessness ; 
 
 and that, if the application was made in good 
 faith and the conditions fulfilled, premiums 
 paid, &c., the assured might confidently rely 
 upon the payment of the assurance ; and a no- 
 tice annexed to the policy assured the holder 
 that payment would be contested only in case 
 of fraud,— Held, that the warranty as to the 
 statements in the application was simply that 
 they were made in good faith, and to sustain a 
 defense based on their falsity the insurer must 
 show not only that they were untrue, but that 
 they were known to be so, and were made with 
 a fraudulent intent. lb. 
 
 55. An omission of the assured to mention an 
 inflammation of the eyes from which he had 
 suffered six years previously, but which had been 
 cured, in answer to the question whether he 
 " had ever had any illness, local disease or injury 
 in any organ," or to disclose the fact that he had 
 twice been attended by a physician and once 
 employed one for his son, in answer to the ques- 
 tion, "Family physician and each one who has 
 given the party medical attendance," is not suf- 
 ficient evidence of fraud to avoid the policy, 
 but, at most, is evidence to be submitted to the 
 jury. lb. 
 
 66. Wliere the policy is taken out for the ben- 
 efit of the wife and children of the assured, his 
 committing suicide cannot affect their rights, 
 unless that act is in violation of some condition 
 of the policy. lb. 
 
 57. Payment of premium prevented by 
 company. Where a person beneficially inter- 
 ested in a life policy which is then in the pos- 
 session of the company as security for a loan, 
 applies to the officers of the company to know 
 when the premiums become due, and they agree 
 to inform him but fail to do so, and in conse- 
 quence thereof the time of payment passes by, 
 the company cannot set up such default as a de- 
 fense to an action on the policy, because the 
 applicant was misled by the act of its officers 
 and prevented from paying in time ; and, under 
 such circumstances, the law will not permit it 
 to say that there was no consideration for its 
 promise. Sup. Ct., 1874, Leslie v. Knickerbocker 
 L. Ins. Co., 2 Hun, 616. 
 
 58. Proof of loss. Where the agent of an 
 insurance company refuses, on application, to , 
 furnish blanks for proof of loss on the ground 
 that the company would not recognize the claim, 
 and on proofs being made out and tendered to 
 him, refuses to receive them but directs them to 
 be sent to the p#*sident of the company, and 
 they are so sent, that is a sufficient compliance 
 with the terms of the policy as to notice and 
 proof of death. Sup. Ct., 1874, Dean v. ./Etna 
 Life Ins. Co., 48 How. 36 ; S. C, 2 Hun, 358. 
 
 59. A condition in a policy of life insurance, 
 that due notice and proof of death shall be 
 given, can only be complied with by furnishing 
 to the insurance company evidence, in some 
 form, of the death of the subject of the insur- 
 ance. A simple notice of that fact by letter 
 is not sufficient ; nor is the omission of the qom- 
 pany to notify the party that such notice was 
 not proof a waiver of the condition. Ct. App., 
 1875, O'Reilly v. Guardian Mut. Life Ins. Co. of 
 N. Y., 60 N. Y. (15 Sick.) 169; Eev'g S. C, 1 
 Hun, 460. / . e . 
 
 60. "Waiver of defects in proof. If the 
 
 proofs furnished by the applicant are kept by 
 the company -without objection, any defects 
 therein are waived. Sup. Ct., 1871, Smith v. 
 -^Ina Life Ins. Co., 5 Lans. 545. 
 
 61. An insurance company may waive a con- 
 dition in a policy requiring proof of death and 
 
INSURANCE, LIFE AND ACCIDENT. 
 
 409 
 
 presentation of the claim to the company ; and 
 a promise to pay, made with full knowledge of 
 the facts, will constitute such a waiver. Ct. 
 App., 1872, Greenfield T. Mass. Mutual Life Ins. 
 Co., 47 N. Y. (2 Sick.) 430. 
 
 62. The clause in a policy of life insurance 
 agreeing to pay within a specified time after due 
 notice and proof of interest and death, does not 
 Impose such proof as a condition precedent to a 
 recovery on the policy, but, in an action there- 
 on, evidence of notice and proof is necessary 
 only for the purpose of showing that the time 
 for payment has elapsed. Sup. Ct., 1872, Hinck- 
 en V. Mut. Benefit Life Ins. Co., 6 Lans. 21 ; 
 Aff'd,.S. C, 50 N. Y. (5 Sick.) 657. 
 
 63. If the proofs were delivered to the com- 
 pany a sufficient time before suit, and no objec- 
 tions to them are shown, they are to be presum- 
 ed sufficient ; and the non-production of them 
 by the company at the trial is satisfactory evi- 
 dence that no valid objection to them exists., 
 lb. 
 
 64. — of conditions. The general agent of 
 a life insurance company has authority, as such, 
 to waive the conditions of the policy as to pre- 
 payment of premiums, and extend the time for 
 payment thereof. Sup. Ct., 1874, Dean v. JEtna 
 Life Ins. Co., 48 How. 36 ; S. C, 2 Hun, 858. S. 
 P., Shear v. Phoenix Mut. Life Ins. Co., 4 Hun, 
 800. 
 
 65. — of forfeiture. A forfeiture of a life 
 insurance policy, by non-payment of premiums 
 at the times required by the rules of the Company 
 and the terms of its policy, may be waived by 
 the ordinary custom of its officers in dealing 
 with its patrons. Sup. Ct., 1871, Kolgers v. Guar- 
 dian Life Ins. Co., 10 Abb. N. S. 176. 
 
 66. Thus, payment to and acceptance by a 
 person employed by the company in its office, 
 sometimes receiving premiums there and sign- 
 ing receipts, and who was commonly sent to 
 collect premiums, of a premium past due, is evi- 
 dence to be submitted to the jury upon the 
 question as to the authority of such person to 
 waive the forfeiture. lb. 
 
 67. Where, subsequent to the issue of a policy 
 of insurance, it was verbally agreed between 
 the assured and the company, that if anything 
 should happen to prevent the former from pay- 
 ing the annual premium on the day it became 
 payable, the policy should not become void but 
 continue in force for a reasonable time there- 
 after, so that tlie premium could be paid ; and 
 the assured was stricken with apoplexy on the 
 day the premium became payable, and died the 
 following day, the premium being tendered the 
 day after his funeral, — Held, that the forfeiture 
 was waived, and an action on the policy could 
 be maintained. Hnirf, C, dissents. Com. App., 
 1871, Howell V. Knickerbocker Life Ins. Co., 44 
 N. Y. (5 Hand,) 276 ; Eev'g S. C, 3 Eob. 232 ; 
 19 Abb. 217. 
 
 68. Where, upon application of a policy-holder 
 for an extension of time for payment of pre- 
 miums then due, the president of the insurance 
 company informs her, both verbally and in 
 writing, that the policy is good and will remain 
 in force by virtue of what has already been 
 paid, for four months longer, that operates as a 
 waiver of any forfeiture for non-payment of 
 premiums imtil the expiration of the time 
 stated, and continues the policy in full force up 
 to that time. N. Y. Supr. Ct., 1873, Hayner v. 
 Am. Popular L. Ins. Co., 35 N. Y. Supr. (3 J. & 
 Sp.) 266 ; AfE'd on re-argument, 36 N. Y. Supr. 
 (4 J. & Sp.) 211. 
 
 69. A further extension of time for payment 
 
 for one day, made by the president by parol, is 
 also binding on the company, the president be- 
 ing presumably the agent of the company for 
 the transaction of its general business. lb. 
 
 70. Where a life 'insurance company, after 
 waiving a forfeiture accruing by reason of non- 
 payment of premiums, declares the policy void 
 for that default, and refuses to receive premiums 
 tendered within the time to which payment has 
 been extended, the policy-holder can maintain 
 an action in equity to have the policy adjudged 
 and decreed to be in life and full force. lb. 
 
 71. A promise, made after forfeiture of a 
 policy by violation of its conditions as to resi- 
 dence, and not by non-payment of premiums 
 merely, and without consideration, to continue 
 such policy in force upon the payment of an ad- 
 ditional premium, which is thereafter tendered 
 to, but not accepted by the company, is not a 
 waiver of tlie forfeiture, and cannot be enforced. 
 Sup. Ct., 1875, Evans v. U. S. Life Ins. Co., 8 
 Hun, 587. 
 
 72. Accident insurance. In the absence 
 of any statutory provision requiring contracts 
 of insurance to be in writing, they may be by 
 parol. Sup. Ct., 1871, Shodes v. Railway Pas- 
 senger Ins. Co., 5 Lans. 71. 
 
 73. The lawfully constituted agent of an in- 
 surance company, having power to issue policies, 
 may bind the company by a parol contract of 
 insurance, unless his authority is limited to 
 written contracts. The receipt by him of a 
 book of blank policies, signed by the president 
 of the company with intent that they shall be 
 filled in by him and delivered to the person as- 
 sured, does not necessarily limit his authority to 
 that mode of insuring. lb. 
 
 74. An agreement for insurance and to issue 
 a poUcy in proper form, is binding on the com- 
 pany if the conditions are complied with by the 
 assured, and equity will decree payment of the 
 insurance money in accordance with the condi- 
 tions of the policy agreed to be issued. lb. 
 
 75. An accident policy, which insures against 
 accidents while travelling, covers an injury by 
 accident occurring while the insured was getting 
 into a public conveyance for passengers when 
 tlie same was in motion. Sup. Ct., 1872, Cham- 
 plin V. Railway Passenger Assurance Co., 6 Lans. 
 71. 
 
 76. The negligence or want of due care on 
 the part of the assured at the time of the injury 
 is no defense to an action on such policy. lb. 
 
 77. Under a policy covering death, happening 
 through any accident "while travelling by public 
 or private conveyances provided for the trans- 
 portation of travellers," a recovery may be had 
 for the death of the assured, caused by her fall- 
 ing upon a slippery sidewalk while passing on 
 foot in the course of a journey, from a steam- 
 boat landing to a railway station. Ct. App., 
 1871, Northrup v. Railway Passenger Assurance 
 Co., 43 N. Y. [4 Hand,) 516. 
 
 78. The right of recovery is not affected by 
 the fact that the assured mig^ have obtained a 
 hack if she had so chosen, it appearing that the 
 general custom was for passengers to walk. lb. 
 
 79. An accident policy, by its terms payable 
 in case the assured should have " sustained per- 
 sonal "injury caused by any accident, and such 
 injuries should occasion death," — Held to cover 
 death by drowning, where the falling into the 
 water was occasioned by such a personal injury. 
 Ct. App., 1871, Mallory v. Travelers Ins. Co., 47 
 N. Y. (2 Sick.) 52. 
 
 80. Concealment, effect of. A policy will 
 not be void for a mere omission of the assured 
 
410 
 
 INSURANCE, MARmE. 
 
 to state facts bearing upon his application, un- 
 less he conceals some fact which, in his own 
 mind, was material thereto. lb. 
 
 81. A failure to disclose injuries happening 
 subsequent to the accident upon which the claim 
 is based, whereby the original injury is aggra- 
 vated, is not the suppression of a fact within 
 the meaning of a provision in the contract of 
 insurance that full particulars of the accident 
 and injury shall be furnished to the insurer, 
 without suppression of any material fact, on 
 condition of forfeiture of all claim. Sup. Ct., 
 1871, BJiodes v. Railway Passengers Insurance Co., 
 6 Lans. 71. 
 
 82. Condition as to intoxicating drinks. 
 Under an accident policy, which provides that 
 " no claim shall be made under this policy, when 
 the death or injury may have happened while 
 the insured was, or in consequence of his hav- 
 ing been, under the influence of intoxicating 
 drinks," no recovery can be had for the death 
 of the assjired by accident, if he was at the 
 time so far under the influence of such drinks 
 as to have the natural condition of his physical 
 or mental faculties disturbed thereby, even 
 though the drinking of the liquor was not the 
 natural or probable cause of his death, or in any 
 way contributory thereto. Sup. Ct., 1875, Shackr 
 v. Railway Pass. Assurance Co., 3 Hun, 424. 
 
 83. Intemperance of the assured is no defense 
 to an action on an agreement to insure against 
 inability to labor arising from accidental inju- 
 ries, unless it contributed in some degree to 
 cause the injury. Sup. Ct., 1871, Rhodes v. 
 Railway Passenger Ins. Co., 5 Lans. 71. 
 
 84. Disability. The insurer is not Uable on 
 a contract for insurance against loss of time 
 from accident and injury totally disabling and 
 preventing the assured from all kinds of busi- 
 ness, where it appears that after the accident 
 claimed for he was able to work for a time, but 
 became totally disabled after receiving addi- 
 tional injuries. lb. 
 
 INSUBANCE, MABINE. 
 
 1. Insurable interest. One to whom goods 
 are consigned for sale, and who in case of fail- 
 ure to sell them at the invoice price, is bound 
 to return or pay for them, has an insurable in- 
 terest. N. Yi Supr. Ct., 1874, Sturm v. Atlantic 
 Mat. Ins. Co., 38 N. Y. Supr. (6 J. & Sp.) 282. 
 
 2. Where a policy is issued " on account of 
 whom it may concern," it inures to the benefit 
 of all the owners, and the person to whom it is 
 issued may maintain an action thereon, in his 
 own name, for the benefit of owners. lb. 
 
 3. The contract. Where a custom or usage 
 of business exists between an applicant for in- 
 surance and certain insurance companies, by 
 which applications are made for insurance for 
 " not less than " a specified amount, on property 
 the actual value ^ which is not known, the ag- 
 gregate sums not to exceed the supposed aggre- 
 gate value of such property, and such applica- 
 tions are accepted and made binding by the re- 
 spective companies, with the understanding that 
 when the value shall be ascertained, the amounts 
 insured shall be declared and apportioned so 
 that they shall bear the same proportions to the 
 property at risk as they bore to the aggregate 
 of all the indefinite insurances, and each com- 
 pany shall then issue its policy in a form then 
 used for the precise sum so fixed, an applica- 
 tion so made to one of those companies for in- 
 
 surance " for not less than $10,000 " on. property 
 the value of which is not known at the time, 
 marked " binding," by the company, is a con- 
 tract for insurance in accordance with such cus- 
 tom. Sup. Ct., 1872, Fabbri v. Mercantile Mut. 
 Ins. Co., 6 Lans. 446 ; S. C, 64 Barb. 85. S. P., 
 Fabbri v. Phoenix Ins. Co., 55 N. Y. ( 10 Sick.) 
 29. 
 
 4. Such contract will render such company 
 liable, in case of loss, for an amount proportioned 
 to the amount insured, notwithstanding a clause 
 contained in the policy, that if the insured has 
 made any other insurance on the property, prior 
 in date to that policy, then the company shall 
 be answerable only for so much as the amount 
 of such prior insurance shall be deficient to- 
 ward fully covering the property insured, and 
 the fact that there are other prior insurances 
 effected by such other companies aufScient to 
 cover the actual loss. lb. 
 
 5. Under a clause in a policy of marine insur- 
 ance providing that, in case of loss or misfor- 
 tune, the assured may sue, labor and travel, in 
 and about the defence, safeguard and recovery 
 of the vessel, and that the company shall con- 
 tribute to the charges thereof in proportion with 
 the sum insured, the insurer is liable over and 
 above the amount insured for its proportion of 
 the general average expenses chargeable to the 
 vessel, which are incurred in rescuing her when 
 stranded and bringing her to port, but not for 
 the expenses of temporary repairs made after 
 her arrival in port, for the purpose of rendering 
 her seaworthy. Com. App., 1872, Alexandre v. 
 Sun Mut. Ins. Co., 51 N. Y. (6 Sick.) 253 ; Rev'g 
 49 Barb. 475. 
 
 6. The latter expenses come within the insur- 
 ing clause of the policy, and were not intended 
 to be covered by the " suing and laboring " 
 clause. lb. 
 
 7. In such case, the owner having written in 
 answer to a letter of inquiry from the master, 
 directing him to consult with a friend named in 
 the port where the vessel was laid up, and ap- 
 proving beforehand whatever they should agree 
 upon, — Held, that the insurance company did 
 not become liable for any part of such repairs in 
 excess of the policy, by reason of having in- 
 dorsed on such letter that they, as underwriters, 
 concurred therein. lb. 
 
 8. A provision in a policy, that, in case the 
 assured had made any prior insurance, then the 
 company should be answerable only for so much 
 of the loss as the prior insurance should be defi- 
 cient in covering the premises, — Held not appli- 
 cable to a prior policy which had been cancelled 
 before the issue of the one in question. N. Y. 
 Supr. Ct., 1870, Roelker v. Great Western Ins. Co., 
 2 Sweeny, 276. 
 
 9. Under an open policy, fixing the nominal 
 rate of premium at two per cent., premium on 
 each risk to be fixed at the time of indorsement, 
 to conform to the rates of the company, such 
 company, in a case where no rates have been 
 established by it, can collect only the two per 
 cent. lb. 
 
 10. Under a policy insuring goods in a cargo 
 against perils of the sea, " free of particular 
 average only," a total physical loss of the sub- 
 ject of insurance is not necessary to a recovery ; 
 but a total loss of value to the owner, where the 
 right of abandonment is exercised during the 
 existence of the peril, is sufficient. Com. App., 
 1870, Watlerstein v. Columbian Ins. Co., 44 N. Y. 
 (5 Hand,) 204 ; Rev'g S. C, SEob. 628. 
 
 11. A policy of insurance, which excepts any 
 loss or damage done by the bursting of boilers, 
 
INSURANCE, MARINE. 
 
 411 
 
 unless occasioned by some unavoidable external 
 cause, but expressly covers " any loss or damage 
 to the vessel occurring subsequent to and in con- 
 sequence of " such bursting, does not cover any 
 part of a total loss, where, upon the bursting of 
 a boiler, rents were produced in the side of the 
 vessel so large, that, the water pouring in, sank 
 her in from five to ten. minutes. Hunt, C., dis- 
 sents. Com. App., 1870, Evans v. Columbian 
 Ins. Co., 4A N. Y. (5 Hand,) 146. 
 
 12. The vessel being manifestly worthless the 
 moment the explosion had occurred, the loss 
 was immediate upon and not subsequent to such 
 explosion within the intent of the policy. lb. 
 
 13. On account of -whom it may con- 
 cern. In an action by the charterers of a ves- 
 sel upon a policy of insurance on the cargo, pro- 
 cured by the vessel-owner, insuring him " on ac- 
 count of whom it may concern," loss if any to be 
 paid to such charterers " in 30 days after proof 
 of loss and proof of interest, &c. ; the amount of 
 any note or notes given the company for premi- 
 ums, if unpaid, and all other indebtedness, being 
 first deducted j " — Held, that the contract was 
 with the charterers, as the assured, and not with 
 the vessel-owner, and that the company was not 
 entitled to deduct any indebtedness to it from 
 the latter, except that owing for premiums on 
 the policy in suit. Sup. Ct., 1873, Pacific Mail 
 Steamship Co. v. Great Western Ins. Co., 65 Barb. 
 334. 
 
 14. Retrospective risk. Insurers may con- 
 tract for antecedent risks, and, by express agree- 
 ment insure against a prior total loss. A time 
 policy which is ante-dated by the insurers, does 
 not assume a retrospective risk, and make the in- 
 surer liable for an intermediate los?, the same as 
 if it had been actually insured on the day it 
 bears- date, even though it does not contain the 
 words " lost or not lost." N. Y. C. P., Hughes v. 
 Mercantile Mut. Ins. Co., 44 How. 851. 
 
 15. Valued policy. The valuation of a 
 policy is deemed to be the result of an agree- 
 ment between the insurer and the insured, which 
 liquidates the amount of the indemnity which 
 the latter is entitled to have in case of loss. This 
 agreement may be invalidated by the insurer if 
 his assent be procured by material misrepre- 
 sentation, fraudulently made. N. Y. Supr. Ct., 
 1874, Sturm v. Williams, 38 N. Y. Supr. (6 J. & 
 Sp.) 326. S. P., Funkx. Orient. Mut. Ins. Co., id. 
 349. 
 
 16. Waiver of condition. Where a policy 
 containing a clause by which it was warranted 
 that the vessel was commanded by a captain 
 holding a certificate from the American Ship- 
 masters' Association, was made and delivered 
 by the insurers, and the premium paid, with 
 knowledge that the vessel was foreign and not so 
 commanded, and upon the understanding that 
 such clause should not or would not apply, — 
 Held, that the insurers waived the certificate. 
 N. Y. Supr. Ct., 1875, McColl v. Sun Mut. Ins. 
 Co., 39 N. Y. Supr. (7 J. & Sp.) 330. 
 
 17. Warranty. In every contract of marine 
 insurance there is an implied warranty on the 
 part of the insured that the vessel is seaworthy, 
 is in a fit state of repair, equipments, crew, and 
 in all other respects, to encounter the ordinary 
 perils of the voyage ; and in case she is not 
 shown to have been so the insurer is not liable. 
 N. Y. Supr. Ct., 1874, Sturm v. Atlantic Mut. Ins. 
 Co., 38 N. Y. Supr. (6 J. & Sp.) 282. 
 
 18. The owner of goods insured on board a 
 vessel at sea, can recover for their loss, espe- 
 cially where barratry of the master and mariners 
 is insured against, nothwithstanding the act of 
 
 the master in leaving an intermediate port in an 
 unseaworthy condition. N. Y. C. P., 1872, 
 Brioso V. Pacific Mut. Ins. Co., 4 Daly, 246. 
 
 19. Where goods are insured upon a clean bill 
 of lading, there is an implied warranty that they 
 are or will be stowed in the usual manner, 
 which is, in the vessel's hold ; and if, instead, 
 they are carried upon deck, the policy never at- 
 taches, and no claim can be made under it, 
 either by way of general average or otherwise, 
 for a portion of the goods jettisoned, even 
 though loss by jettison be specially insured 
 against. N. Y. C. P., 1871, Atkinson v. Great 
 Western Insurance Company, 4 Daly, 1. 
 
 20. Deviation. If a-' vessel, insured for a 
 specific voyage, goes designedly and unneces- 
 sarily in the least out of her course or lies by 
 and interrupts the voyage without necessity and 
 without the assent of the underwriter, the risk 
 is substantially changed, and such change of 
 risk is a deviation which terminates the insur- 
 ance. Ct. App., 1875, Audenreid v. Mercantile 
 Mut. Ins. Co., 60 N. Y. (16 Sick.) 482. 
 
 21. Where a vessel insured for a voyage from 
 P. to N. Y., with liberty " to touch and stay at 
 any ports and places if thereunto obliged by 
 stress of weather or other unavoidable acci- 
 dents," stopped at an intermediate port to re- 
 pair a defect known before she started, and was 
 there destroyed by flre ; — Held, that the policy 
 was terminated by the delay, and the insur 
 ance company discharged. lb. 
 
 22. An insurance, " at and from New York to 
 Havana," was effected on » vessel undergoing 
 repairs at the first named port ; and she, after 
 her repairs were completed, made a trial trip to 
 Elizabethtown in New Jersey, about 20 miles 
 distant, where she took on a load of coal, return- 
 ing in a couple of days to New York ; she sub- 
 sequently started on her voyage to Havana, and 
 was lost by fire. Held, that the risk was contin- 
 uous and indivisible, and that the trip to Eliza- 
 bethtown was a deviation which discharged the 
 insurers. Com. App., 1872, Fernandez v. Great 
 
 Western Ins. Co., 48 N. Y. (3 Sick.) 571; Bev'g 
 S. C, 3 Rob. 457. 
 
 23. A warranty contained in a policy, not to 
 use foreign ports and places in the Gulf of 
 Mexico, is not broken by the vessel's clearing 
 and sailing for such a. port, if she does not reach 
 or go into it ; but if wrecked on the voyage the 
 insurance company is liable. N. Y. Supr. Ct., 
 1873, Wheeler v. JV. Y. Mut. Ins. Co., 35 N. Y. 
 Supr. (3 J. & Sp.) 247. S. P., Snow v. Columbian 
 hs. Co., 48 N. Y. (3 Sick.) 624; Eev'g S. C, 48 
 Barb. 469. 
 
 24. Where a vessel insured for the voyage 
 " at and from Miramichi, to a port in Cape Bre- 
 ton, and at and thence to New York," sailed for 
 Big Glace Bay, a port of Cape Breton, under a 
 charter to load with coal for New York, but put 
 into Sydney, another port of Cape Breton, not 
 been compelled by stress of weather, and re- 
 mained there 16 days, and having determined 
 to go to Cow Bay, another port of Cape Breton, 
 instead of Big Glace Bay, sailed for that port 
 and was lost in a storm soon after arriving there ; 
 — Held, that there was a deviation, either in 
 using the port of Sydney, or in afterward pro- 
 ceeding to another, the right of selecting a port 
 being exhausted by the use of one. N. Y. Supr. 
 Ct., 1875, McCoU V. Sun Mut. Ins. Co., 39 N. Y. 
 Supr. (7 J. & Sp.) 330. 
 
 25. Damages from ice. A policy of insur- 
 ance on a canal boat for one year excepted, 
 among other perils, damages from ice, and re- 
 quired the boat not to be navigated, but to bo 
 
412 
 
 INSURANCE, MARINE. 
 
 safely moored, Batisfac-torUy to the company, 
 during the winter. Tiie boat was moored 
 in a canal basin, and in the spring the ice 
 in an adjoining river, when breaking up, form- 
 ed a partial dam, which set back the water 
 so that it flowed over a sea wall into the basin 
 and raised the stern of the boat which had be- 
 come loose from the ice, while the bow remained 
 fast, and in conseqLuence the boat was twisted 
 and injured; — Held, that the policy merely re- 
 quired the boat to be moored in a proper place 
 and with reasonable care and safety, and did 
 not require notice to the company of the place 
 of mooring ; and that the exemption for dam- 
 ages by ice was not limited to the season of 
 navigation ; and (Earl and Johnson, C. C, dis- 
 senting) that the ice was the proximate cause 
 of the injury, and the company was not liable. 
 Com. App., 1874, Allison y. Com Exch. Ins. Co,', 
 67 N. Y. (12 Sick.) 87. 
 
 26. — by stress of weather. Where a 
 canal boat loaded with hay, which was insured, 
 when being towed down the Delaware was 
 broken loose from the towing vessel by a gale 
 and driven ashore, where it was frozen in, but 
 afterward floated off with the ice and back again 
 on the returning tide, and another boat having 
 sunk under its stem, it broke in two in the mid- 
 dle when the tide turned, and sunk, and the 
 cargo was damaged and the most of it lost ; — 
 Held, that the stress of weather by which it 
 was separated from the tug and driven ashore 
 was the primary cause of the loss, and the in- 
 surers were liable. N. Y. Supr. Ct., 1872, Brown 
 T. St. Nicholas Ins. Co., 34 N. Y. Supr. (2 J. & 
 Sp.) 231. 
 
 27. Iioss by fraud, &c. If a loss occurs 
 through want of good faith, or positive act, or 
 wrongful omission of the master in suffering the 
 vessel to sink, or through his wilful act, con- 
 nived at, instigated or concurred in by the as- 
 sured, the insurer is not liable. N. Y. Supr. Ct., 
 1874, Sturm v. Atlantic Mut. Ins. Co., 88 N. Y. 
 Supr. (6 J. & Sp.) 282. 
 
 28. Total loss. Where a vessel, on which 
 there was an insurance against loss of freight 
 by the perils of the sea, was stranded and became 
 a total wreck within a short distance from her 
 port of delivery, and the master was drowned, 
 and the owner, on receipt of the news, consulted 
 with the president of the insurance company, 
 and by his advice telegraphed to the consignee 
 to ascertain the condition of the vessel, take at 
 least a 60 per cent, average bond, and advise 
 with one H, and the consignee did so and under 
 the advice of H turned the vessel over to him 
 as agent of the underwriters, and he took all 
 subsequent charge of saving cargo, collecting 
 freight, etc. ; — Held, that H was the agent of 
 the underwriters, and they were bound by his 
 acts ; that there was a total loss of freight to 
 the owner, even though the freight was collected 
 by H, on a small portion of the cargo saved and 
 delivered by him at an expense exceeding the 
 amount collected ; and that the assured was 
 entitled to the whole amount of the insurance 
 money without any deduction for the amount of 
 
 "freight so collected. N. Y. Supr. Ct., 1874, 
 Robertson v. Atlantic Mut. Ins. Co., 37 N. Y 
 Supr. (6 J. & Sp.) 442. 
 
 29. Where a vessel is shown to be upon a 
 reef under a high and precipitous cliff, on a 
 dangerous coast at a season when there is the 
 greatest probability of gales and destructive 
 seas, and cannot be taken off, though there is a 
 bare chance that she may survive the winter 
 tempests and waves and be removed in the 
 
 spring, she must be deemed a total loss ; and 
 the sale of that bare chance will not affect that 
 conclusion. N. Y. Supr. Ct., 1875, McColi y. 
 Sun Mut. Ins. Co., 39 N. Y. Supr. (7 J. & Sp.) 
 330. 
 
 80. In an action on a policy of marine insur- 
 ance, where a total loss is claimed, the plaintiff 
 must prove either an actual or a. constructive 
 total loss. N. Y. Supr. Ct., 1872, McGoU v. Sun 
 Mut. Ins. Co., 34 N. Y. Supr. (2 J. & Sp.) 313. 
 
 31. Proof by the testimony of the captain, 
 that the vessel stranded and filled, lost its spars 
 and boats, and parted its hawser and chain, does 
 not establish a total loss, nor does his bare state- 
 meat that "she was a complete wreck," without 
 any statement of facts on which to base his 
 opinion ; especially, where it appears that she 
 was afterward rescued and repaired, and was 
 thereafter sound and seaworthy. lb. 
 
 32. In order to recover as for a constructive 
 total loss, the plaintiff must show an abandon- 
 ment, and such other facts as may be required 
 b^the cooditions of the policy. lb. 
 
 33. In an action to recover as for an actual 
 total loss of a cargo of ale, the plaintiff must 
 establish either the physical extinction of the 
 property or the extinction of its value, arising 
 from the perils insured against N. Y. Supr. 
 Ct., 1872, Young v. Pacific Mut. Ins. Co. 34 N. Y. 
 Supr. (2 J. & Sp.) 321. 
 
 34. Proof of a total loss of value to the owner 
 is suflScient, that being equivalent to a total 
 physical loss. lb. 
 
 85. The plaintiff having shown the sound con- 
 dition of the ale at the time of shipment, it be- 
 comes incumbent on the defendants to rebut the 
 presumption arising from such proof, by show- 
 ing that it was not injured by any of the causes 
 insured against. lb. 
 
 36. Action by trustee. A policy of marine 
 insurance running to JH "for account of whom 
 it may concern," makes him a trustee of an ex- 
 press trust, and an action to recover the insur- 
 ance money may properly be brought in his 
 name although he may have assigned all his 
 beneficial interest therein to another. N. Y. C. 
 P., Hughes v. Mercantile Mut. Ins. Co. 44 How. 351. 
 
 37. Barratry. The act of the master of a 
 vessel in stowing goods upon deck, contrary to 
 the usual custom, and even against the protest 
 of an agent of the owners, does not constitute 
 barratry, unless it appears to have been done 
 from fraudulent or criminal motives on the part 
 of the master. Negligence, even though gross, 
 is not sufficient. N. Y. C. P., 1871, Atkinson v. 
 Great Western Insurance Company, 4 Daly, 1. 
 
 38. Identity of vessel. In an action upon 
 a policy of marine insurance, which describes 
 the vessel insured as the bark Empress, or by 
 whatever other name or names the vessel is or 
 shall be called, testimony is admissible to show 
 that the name of the vessel had previously been 
 changed to the St. Mary, and that the vessel 
 lost bearing that name was the identical one 
 insured. N. Y. C. P., Hughes v. Mercantile Mut. 
 Ins. Co., 44 How. 351. 
 
 39. The mistake in the name of the vessel is 
 no obstacle to a recovery, provided both parties 
 had the same one in view, but where the under- 
 writer mistakes the vessel sought to be insured, 
 and the policy in fact describes another vessel 
 than the one for which application is made, the 
 minds of the parties do not meet and there is no 
 contract, and this is so although the underwriter 
 was put upon inquiry and might by the exercise 
 of diligence and care have avoided the mistake. 
 Negligence alone on his part does not avoid the 
 
INTEREST. 
 
 413 
 
 difBcuUy. Ct. App., 1873, S. C, 55 N. Y. (10 
 Sick.) 265. 
 
 40. OveTvaluation, if fraudulent, avoids the 
 policy, and where it is gross, fraud may be pre- 
 sumed. N. Y. Supr. Ct., 1874, Sturm v. Atlantic 
 Mut. Ins. Co., 38 N. Y. Supr. (6 J. & Sp.) 282. 
 
 41. Proof of value. Under a valued policy 
 the insured need not prove the actual value of 
 the property insured, the valuation in the policy 
 being conclusive between the parties, except in 
 case of fraud. lb. 
 
 42. Surrender of cargo. Under a policy 
 insuring freight, a voluntary surrender of the 
 cargo to the shippers free of freight, under any 
 circumstances short of a total loss or inability 
 of the vessel, arising from some of the causes 
 insured against, to deliver the same at the port 
 of destination, will release the insurers. Com. 
 App., 1871, Allen V. Mercantile Mut. Ins. Co. 44 
 N. Y. (5 Hand,) 487 ; Eev'g S. C, 46 Barb. 642. 
 
 43. Neither the detention of the vessel by an 
 injury not amounting to a total loss, nor the 
 subsequent closing of navigation by ice, will 
 justify such surrender, or charge the insurer. 
 The questions of profit and loss to the owner or 
 tlie length of time required to deliver the cargo, 
 do not enter into the contract of insurance. lb. 
 
 INTEREST. 
 
 1. "WTien recoverable. In order to entitle 
 a party to interest in a matter resting in con- 
 tract, there must either be an express agreement 
 to pay it, o^ the circumstances must be such 
 that the law will imply one. Sup. Ct., 1872, 
 
 Woodbury v. Morton, 44 How. 56. 
 
 2. A justice's judgment, after an appeal taken 
 therefrom does not draw interest, and a new 
 trial in the County Court puts an end to it, and 
 a subsequent stipulation that in a specified con- 
 tingency the party who recovered such judg- 
 ment may enter judgment in the Supreme Court 
 "for the amount of the judgment rendered by 
 the justice with costs of this action to be tax- 
 ed," does not entitle such party to interest on 
 such judgment. lb. 
 
 3. Where a contract contains no agreement to 
 pay interest, it can be allowed, if at all, only as 
 an incident, and by way of damages for default 
 in payment at the time agreed. Sup. Ct., 1871, 
 Southern Cent. R. R. Co. v. Toum of Moravia, 61 
 Barb. 180. 
 
 4. After payment in full of the amount sub- 
 scribed to the capital stock of a railroad com- 
 pany, agreed to be paid " in such instalments, 
 and at such times as the board of directors may 
 direct," even though the payments were not 
 made at the times designated therefor in the 
 calls, if nothing was said about interest, and 
 no claim made therefor, at the time of receiving 
 the payments and giving receipts therefor, the 
 company cannot afterward claim or collect in- 
 terest on the several amounts specified in the 
 calls, during the time they remained unpaid 
 after tlie day designated for payment. lb. 
 
 5. On account. Interest can be charged on 
 an account only from the time when the same is 
 rendered j not on the various items from their 
 date. Sup. Ct., 1871, Wood v. Belden, 69 Barb. 
 649. 
 
 ■ 6. — unliquidated. Interest is not allowable 
 on a running account until it is settled; and 
 where an account against an estate is referred, 
 the referee cannot allow interest on the balance 
 from the death of the intestate. Ct. App., 1875, 
 
 Smith V. Velie, 60 N. Y. (15 Sick.) 106. Nor is it 
 allowable upon an account for 'services, not 
 liquidated before a suit therefor. Sup. Ct., 
 1874, Godfrey V. Mosher, 3 Hun, 218. But it may 
 be allowed upon disbursements made by an 
 attorijey. N. Y. C P., 1870, Hadley v. Ayres, 12. 
 Abb. N. S. 240 ; AfE'd, S. C.,46 N. Y. (1 Sick.) 691. 
 
 7. On funds received in official capacity. 
 In an action against the railroad commissioners 
 of a town, to compel them to account for moneys 
 received by them in their official capacity from 
 a sale of railroad stock, where it appears that 
 they retained a portion of tlie fund and under- 
 took to appropriate it to their own use, denying 
 the right of the town thereto, they may properly 
 be charged with interest tliereon. Ct. App., 
 1874, Griggs V. Griggs, 56 N. Y. (11 Sick.) 504. 
 
 8. On guaranty. One who contracts to sell 
 goods for another, and to guaranty the payment 
 for all goods sold by him, and for the full 
 amounts for which said goods shall be sold, is 
 liable to his principal for interest from the time 
 payment became due to the guarantor in case of 
 sales on credit. N. Y. Supr. Ct., 1874, Gutta 
 Percha ^ Rubber Manuf. Co. v. Benedict, 37 N. Y. 
 Supr. (5 J. & Sp.) 430. 
 
 9. On purchase-money of land. A vendee 
 in a contract for the purchase and sale of land, 
 who takes possession of the property as owner 
 without having paid the purchase-money, is 
 bound to pay interest thereon. Sup. Ct., 1873, 
 Parker v. Parker, 65 Barb. 205. 
 
 10. On surplus. One who receives and re- 
 tains surplus moneys on foreclosure in excess of 
 his claim or lien thereon, is not liable to a subse- 
 quent lien or for interest on the balance previous 
 to notice or demand by the latter. Sup. Ct., 
 1871, Russell V. Duflon, 4 Lans. 399. 
 
 11. Compound interest is allowable on an 
 accounting only in case of gross delinquency, or 
 of intentional violation of duty. Sup. Ct., 1874, 
 Bennett v. Cook, 2 Hun, 526. 
 
 12. Executed contract for enhanced rate. 
 Even if the obligee may not exact interest at 
 the legal rate on an obligation drawing less than 
 that, after the principal becomes payable, and 
 even if an executory agreement to pay the en- 
 hanced rate would not be enforced, yet, where 
 the enhanced rate is legal and the agreement to 
 pay is founded on a good consideration, and has 
 been performed, the transaction will not be dis- 
 turbed, nor will the excess of interest paid be 
 applied as a payment on the principal. Ct. App., 
 1873, Hitter v. Phillips, 53 N. Y. (8 Sick.) 586. 
 
 13. Extinguished with debt. Wliere in- 
 terest is made payable by the terms of a con- 
 tract, its collection can be enforced after the 
 principal of the debt has been paid ; but where 
 it is allowed, not as a part of the contract, but as 
 an incident and in lieu of damages, or as com- 
 pensatory for some loss by reason of a breach or 
 default, no action will lie to recover interest after 
 payment of tlic principal of the debt and its 
 receipt in full, it being extinguished with the 
 debt. N. Y. Supr. Ct., 1875, Ludington v. Miller, 
 38 N. Y. Supr. (6 J. & Sp.) 478. 
 
 14. Where collateral security is given, by bond 
 and mortgage drawing interest, for an indebted- 
 ness of a larger amount, it is fairly inferable 
 that the parties intended the interest should ac- 
 cumulate to cover the deficiency, and the pay- 
 ment of interest on the principal debt will not 
 necessarily extinguish the interest upon the col- 
 laterals. Ct. App., 1874, Cory v. Leonard, 56 N. 
 Y. (11 Sick.) 494. 
 
414 INTERNAL REVENUE— JOINT STOCK COMPANIES. 
 
 INTERNAL SEVENUE. 
 
 1. A forfeiture of property does not take place 
 under the internal revenue acts until a judg- 
 ment condemning it has been obtained ; and if, 
 after seizure, the possession is abandoned by the 
 government, and no decree of forfeiture is obtain- 
 ed, the title and right of possession is in the 
 owner. Ct. App., 1874, Traeg v. Corrse, 49 How. 
 323 ; S. C, 58N. Y. (13 Sick.) 143 ; Aff'g 45 How. 
 816. 
 
 2. A barge, upon which is a still and apparatus 
 for the illicit manufacture of spirits, with imple- 
 ments and materials for manufacturing, is not 
 itself an object or thing on which a tax is liable 
 to be imposed, nor a tool, implement or instru- 
 ment liable to seizure under the acts of Congress ; 
 and a sale thereof by the collector, before any 
 decree in the case, on the ground that it was 
 perishable or expensive to keep, conveyed no 
 title to the purchaser. lb. 
 
 3. A subsequent decree condemning the pro- 
 ceeds of the collector's sale of the barge and the 
 property seized therewith, cannot affect the title 
 of those claiming the barge under the original 
 owner, who were in the actual possession of the 
 barge at the time of the decree, and were not 
 notified to appear and assert their title. lb. 
 
 INTEIIPLEADER. 
 
 1. Action of. An action of interpleader can 
 only be maintained where the plaintiff can in no 
 other way be protected from an unjust litigation 
 in respect to property claimed by several parties. 
 N. T. Supr. Ct., 1873, N. Y. ^ Harlem R. JR. Co. 
 V. Haws, 35 N. Y. Supr. (3 J. & Sp.) 372. 
 
 2. An action to restrain the enforcement of a 
 verdict in favor of the finder of chattels against 
 a party in whose custody he placed them in an ac- 
 tion for conversion, on the ground that an owner 
 had appeared claiming the property, cannot be 
 sustained as an action of interpleader, where the 
 plaintiff does not disclaim any interest in the 
 property, nor aver that he is. uncertain to whom 
 the right belongs, nor bring the money into 
 court or offer to do so, before taking any steps 
 in the cause. lb. 
 
 8. Collectors of taxes. The owner of a 
 farm situated in two adjacent towns, in one of 
 which he resides, cannot maintain an action 
 against the collectors of taxes in those towns, 
 each holding a warrant for the collection of taxes 
 on the whole of such farm assessed in his town, 
 to compel them to interplead, because he cannot 
 claim to be ignorant of their respective rights. 
 Sup. Ct., 1871, Daran v. Fox, 6 Lans. 162. 
 
 INTERROGATOEIES. 
 See Depositions ; pkactiob. 
 
 INTESTACY. 
 See ExEOUTOKS and administkators, 
 
 INTOXICATING LIQUOES. 
 See Excise. 
 
 INVENTORY. 
 See ExBCUTOKs and adminibteaiobs. 
 
 IRREGULARITY. 
 See Pbactioe. 
 
 ISSUE. 
 See Pleading. 
 
 JAIL LIBERTIES. 
 
 1. WTio entitled to. The right to go upon 
 the jail limits is derived from the statute (2 B. 
 S. 433, sec 40,) and not from any mandate in the 
 precept ; and it will, therefore, be sufficient in a 
 precept for committal to prison for disobedience 
 of an order for the payment of money, such as 
 one for temporary alimony, to recite such order, 
 and command the sheriff to commit the person 
 to prison, leaving open the question of jail liber- 
 ties. N. Y. Supr. Ct., Sp. T., 1871, Ford v. Ford, 
 41 How. 169 ; S. C, 10 Abb. N. S. 74. 
 
 2. In all other cases of commitments for con- 
 tempt, the offending party may be committed to 
 close custody, and deprived of the liberties of 
 the jail. lb. 
 
 JEOPARDY. 
 See Cbiuinax law. 
 
 JOINT LIABILITY 
 
 1. On contract. Where one of the joint 
 makers of a note or bond dies, there can be no 
 recovery had against his estate at law. The 
 holder's only remedy is against the survivor, 
 even though he be insolvent. N. Y. Supr. Ct., 
 
 1871, Puckha/er v. White, 33 N. Y. Supr. (1 J. & 
 Sp.) 267. 
 
 2. The cases where the bond or note was 
 given to secure a joint original liability or for a 
 joint loan of money to the makers, is an excep- 
 tion to this rule. lb. 
 
 3. The Code does not alter any fundamental 
 principle of law as to the joint liability of con- 
 tractors, and sec. 136 was simply intended to 
 alter the practice. lb. 
 
 4. Upon the death of one of several joint 
 obligees who was a surety merely, his estate is 
 absolutely discharged and the survivors alone 
 are liable, whether in law or equity. Ct. App., 
 
 1872, Getty v. Binsse, 49 N. Y. (4 Sick.) 385. 
 
 5. For tort. A bank and its customer who 
 takes a check with a forged indorsement, and 
 for whom the former makes a collection thereon, 
 are liable jointly in an action by, the true owner 
 for a conversion thereof. N. Y. C. P., 1871, 
 White V. Mechanics National Bank, 4 Daly, 225. 
 
 JOINT STOCK COMPANIES. 
 
 1. Individual liability. In the absence of 
 any legislation regulating the liabiUty of mem- 
 bers of voluntary joint stock companies or 
 associations, they are to be treated as partner- 
 ships, and the members are individually liable 
 
JOINT OWNERSHIP— JUDGMENT. 
 
 415 
 
 for the company's debts. Sup. Ct, 1875, Moare 
 V. Bnnfc, 4 Hun, 402. 
 
 2. As in the case of partners, if one of the 
 members dies, the creditor must proceed and 
 exliaust his remedy against the surviving mem- 
 bers before he can maintain an action against 
 the personal representatives of the deceased. 
 lb. 
 
 8. The statutes authorizing suits by and 
 against sucli associations in the name of their 
 president or treasurer (ch. 258, Laws 1849 ; ch. 
 153, Laws 1853 ; 4 Edm. Stats. 650), reserve to 
 creditors the right to sue the members or stock- 
 holders individually, as it existed previous to 
 the act of 1849. lb. 
 
 4. The individual members of a joint stock 
 company are not liable to suit for a debt of the 
 company, until after a suit and judgment against 
 its president, and failure to secure satisfaction 
 thereby. Sup. Ct., 1873, Allen v. Clark, 65 Barb. 
 563. 
 
 5. Such a judgment is, at most, but prima 
 facie, evidence in the plaintiffs favor in a sub- 
 sequent action against the associates ; and they 
 may still contest their liability for the debt. lb. 
 
 6. Although persons furnishing articles for 
 the erection of the works of such a company, do 
 not know of its existence, and do not intend to 
 give credit to it, but furnish them on the credit 
 of individual members, yet the company be- 
 comes liable for the value of such articles as are 
 furnished upon the order of its agent, and used 
 by it in erecting its works ; but it is not liable 
 for articles furnished after the company has 
 parted with its interest in the property, and con- 
 sequently the individual members are not liable 
 therefor. lb. 
 
 7. In such a case, no notice of the termina- 
 tion of its interest in the works is necessary to 
 protect it from liability for articles subsequent- 
 ly delivered. lb. 
 
 8. The receipt by a creditor of drafts of a 
 third person or company, to apply in payment of 
 the debt when collected, merely suspends, but 
 does not destroy his rights against the company 
 or its members, so long as they remain unpaid, 
 lb. 
 
 JOINT OWNERSHIP. 
 
 See Tbnauts to Oomuon. 
 
 JOINT TENANTS. 
 See Aotionb; Tenauts in Commok. 
 
 JUDGE. 
 
 1. Competency. Under the present con- 
 stitution of this State, no judge can sit at 
 General Term, in review of his own order. A 
 justice of the Supreme Court who made the or- 
 
 ' der at Special Term, from which an appeal has 
 been taken, is therefore. Incompetent to sit at 
 General Term upon a review of such order on its 
 merits, or to take part in determining whether 
 such order was appealable to the General Term. 
 Ct. App., 1871, Pistor V. Brundrett, 42 How. 5 ; 
 S. C, Suh mm, Pistor v. Hatfield, 46 N. Y. ( 1 
 Sick.) 249. 
 
 2. Disqualification. The provisions of the 
 
 Bevised Statutes and the rule of the common- 
 law disqualifying judges from sitting in cases 
 where they are interested, apply only to judges 
 eo nomine, who have power to hear and determine 
 litigated questions, and cannot be extended to 
 administrative officers who happen to perform 
 an act requiring deliberation and sound judg- 
 ment. Com. App., 1874, Foot v. Stiles, 57 N. Y. 
 (12 Sick.) 899. 
 
 8. Even where the prohibition applies, the acts 
 of the officer are voidable merely, not void, and 
 the only remedy is to set aside the proceedings. 
 The officer and those acting under his authority 
 are not liable in trespass for their acts in such 
 cases. lb. 
 
 JUDGMENT. 
 See Peactice. 
 
 1. By confession. The provisions of sec 382 
 of the Code, allowing judgment to be confessed 
 " for money due or to become due," does not 
 apply to nor authorize the confession of a judg- 
 ment for a tort, such as one for the value or 
 proceeds of property converted. Sup. Ct., Sp. 
 T., 1873, Burkham v. Van Saun, 14 Abb. N. S. 
 163. 
 
 2. Foreign judgment. In an action upon a 
 judgment rendered by a court of another State, 
 the defendant may show that such judgment is 
 void for want of jurisdiction of his person. N. 
 Y. Supr. Ct., 1872, Howard v. Smith, 35 N. Y. 
 Supr. (3 J. & Sp.) 131. 
 
 3. Such judgment may be impeached by 
 proof that the defendant was not served with 
 process, and that the attorney who appeared for 
 him was not authorized to do so, even though 
 the record recites jurisdictional facts. lb. 
 
 4. The rebellion in which the people of the 
 State of Louisiana were engaged in 1863, did not 
 annul the power or jurisdiction of its civil tribu- 
 nals, or render invalid judgments then pronounc- 
 ed by them. Ct App., 1871, Pepin v. Lachen- 
 meyer, 45 N. Y. (6 Hand,) 26. 
 
 o. The military occupation and control of a 
 city of that State by the forces of the United 
 States; was not inconsistent with the exercise 
 by the State courts of their accustomed jurisdic- 
 tion ; nor would the fact that a judge of such a 
 court had taken an oath to support the rebel 
 government, of itself render invalid a judgment 
 pronounced by him. lb. 
 
 6. Validity. Want of jurisdiction of the 
 subject-matter of an action, and of the parties 
 to be bound thereby, renders the judgment 
 utterly void. Sup. Ct., 1870, Phelps v. Baker, 
 41 How. 237 ; S. C, 60 Barb. 107. 
 
 7. A judgment for divorce and alimony, ob- 
 tained in Ohio by a wife who removed from 
 New York to that State, against her husband 
 to whom she was married here, and who never 
 resided in Ohio, was not served with process 
 except by publication in a newspaper, did not 
 appear, and had no knowledge of the suit until 
 after the rendition of the judgment, and attach- 
 ment and sale of his property in this State to 
 satisfy the alimony, is void in this State, as to 
 the alimony at least, and will not sustain an ac- 
 tion here for the collection of such alimony. lb. 
 
 8. It has been repeatedly held that a judg- 
 ment rendered in an action commenced by tlie 
 attachment of property, is valid so far as the 
 title to the property attached is concerned, but 
 utterly inoperative for any other purpose against 
 
416 
 
 JUDICIAL SALE. 
 
 a defendant who lias not appeared or been per- 
 sonally served with process. lb. 
 
 9. A judgment of the Special Term, ordering 
 the conveyance of land to the wife alone, for 
 life, entered after a judgment of the General 
 Term in the action, determining that husband 
 and wife are entitled to a conveyance thereof to 
 hold as long as they or either of them shall live, 
 has been affirmed by the Court of Appeals, is 
 of no effect and not binding, so far as it gives 
 the wife a greater interest than that authorized 
 by the judgment of the General Term. Sup. 
 Ct., 1874, Freeman v. Barber, 1 Hun, 433. 
 
 10. Lien of. A judgment docketed against 
 the holder of a durable lease of real estate in 
 fee, is a lien thereon, notwithstanding the debtor 
 may have previously made an executory con- 
 tract with his landlord for the conveyance of the 
 remaining interest of the latter. Such a con- 
 tract gives no estate, but a mere equity, and his 
 prior legal estate does not merge therein. Sup. 
 Ct., 1875, Millard v. McMuUin, 5 Hun, 572. 
 
 11. Whetlier, in case of a voluntary partition 
 fairly made between tenants in common of land, 
 by conveyances to each from the others of his 
 share in severalty, equity would not compel a 
 creditor having a lien by judgment or mortgage 
 on the undivided share of one of such tenants, 
 to resort to the share so partitioned to his debtor 
 for the satisfaction thereof, gueref Sup. Ct., 
 1871, Martin v. Wagener, 60 Barb. 435. 
 
 12. But equity will not interfere, where the 
 transaction is not such a partition, but a mere 
 bargain and sale, and the conveyances volunta- 
 rily made with knowledge of the facts, to trans- 
 fer the lien to the lands conveyed to the judg- 
 ment debtor, and relieve the lands conveyed by 
 him in exchange therefrom. lb. 
 
 13. Where all the lands so conveyed to the 
 judgment debtor, and all other lands held by 
 him in severalty, have been transferred to dif- 
 ferent purchasers, in the execution of other 
 judgments against him, it becomes a mere ques- 
 tion as to the order in which the lands subject 
 to the lien of the original judgment should be 
 sold, or made to contribute, and that is regulated 
 by statute. lb. 
 
 14. Where an estate of a judgment debtor is 
 subject to be defeated by breach of condition 
 subsequent, any breach which determines the 
 estate also destroys the lien of the judgment. 
 Ct. App., 1873, Moore v. Pitts, 58 N. Y. (8 Sick.) 
 85. 
 
 15. A decree in equity setting aside convey- 
 ances to the wife of a judgment debtor as fraud- 
 ulent, and subjecting the lands conveyed to 
 the lien of the judgment, made in an action 
 ■wherein a prior mortgagee of the wife is not made 
 a party, does not affect the mortgage interest, 
 but becomes a lien on the equity of redemption 
 alone. Ct. App., 1873, Reynolds v. Park, 53 
 N. Y. (8 Sick.) 36. 
 
 16. Adjusting equities. Where, in such 
 case, the judgment affects other than the mort- 
 gaged premises, and those not included in the 
 mortgage are subsequently mortgaged and sold 
 on foreclosure, the purchaser on such sale as 
 against a purchaser under a foreclosure of the 
 prior mortgage, to which the judgment creditor 
 was not a party, is entitled to have the lands first 
 mortgaged sold first under the judgment ; and 
 in such case, the proceeds would be applied, 
 first, to the payment of the prior mortgage ; sec- 
 ond, to the satisfaction of the judgment ; while 
 the surplus would go to the purchaser on the 
 foreclosure sale. lb. 
 
 17. Priority. A plaintiff in ah action for 
 
 specific performance of a contract for the sale of 
 land, in whose favor a judgment is entered for 
 the amount paid on the contract, the vendor be- 
 ing unable to perform, whicli amount is adjudg- 
 ed to be a lien upon the surplus moneys arising 
 from a sale of the premises under a prior mort- 
 gage lien, from the time of the filing of lis pen- 
 dens in his action, has a lien upon such surplus 
 moneys prior to that of a judgment creditor 
 whose judgment was recovered and docketed 
 after the filing of lis pendens, and the judgment 
 recovered by him is evidence of such priority. 
 Sup. Ct., 1874, Hull V. Spratt, 1 Hun, 298. 
 
 18. Satisfaction. If a judgment debtor 
 wrongfully procures from the depositary thereof 
 a satisfaction piece executed by the judgment 
 creditor, without complying with the conditions 
 on which the same was to be delivered to him, 
 and by means thereof procures the judgment to 
 be satisfied of record, the judgment creditor is 
 entitled to have the satisfaction cancelled and 
 tlie lien of the judgment restored, and he can 
 maintain an action for that purpose. Ct. App., 
 Slocum T. Freeman, 46 How. 437. 
 
 19. Where a joint judgment against two, 
 which one of them has assumed to pay, is after- 
 ward assigned to a firm of which the latter has 
 become a member, such assignment satisfies the 
 judgment as against the other joint debtor. Sup. 
 Ct., Sp. T., 1874, Morleyv. Stevens, 47 How. 228. 
 
 JUDICIAL SALE. 
 See Execution, mortgaoe, etc. 
 
 1. Perishable Property. The authority of 
 a collector of internal revenue to sell prop- 
 erty seized by him as perishable or expen- 
 sive to keep, before adjudication of forfeit- 
 ure, under sec. 48 of the act of Congress of 
 June 30, 1864 (13 U. S. Stats, at Large, p. 238), 
 as amended in 1866 {14 U. S. Stats, at Large, p. 
 112), rests on — 1. The application by the col- 
 lector to the assessor to examine the property 
 seized ; 2. His examination and opinion that a 
 sale is necessary ; 3. His appraisal of the prop- 
 erty ; 4. The refusal of the owner on notice to 
 give a bond ; and, 5. The order to sell ; and to 
 sustain his title, the purchaser under such order 
 must prove that all these necessary steps have 
 been taken. Sup. Ct., 1878, Tracy v. Corse, 45 
 How. 316 ; Aff'd, S. C, 58 N. Y. (13 Sick.) 143; 
 49 How. 323. 
 
 2. Where the property seized consisted of a 
 quantity of distilled spirits, a still and appar- 
 atus, and materials, implements, etc., for manu- 
 facturing, and a barge, and all were appraised 
 together in one lump, and no proof was given 
 of any notice to the owner to give a bond, nor 
 of any decision of the assessor that a sale was 
 necessary, until after the time when, as alleged, 
 the owner had failed to give a bond ; — Held, that 
 the sale was invalid as against a purchaser un- 
 der a mortgage existing and duly recorded prior 
 to the seizure. lb. 
 
 3. The subsequent decree of the U. S. Dist. 
 Court condemning the proceeds of the sale, could 
 not render valid the sale made under the prior 
 proceedings and not under such judgment. lb. 
 
 4. Completing purchase. A purchaser at 
 a sale of lands under a decree in partition will 
 not be compelled by the court to complete liis 
 purchase, if, by reason of defects in the notice 
 published, the court did not acquire jurisdiction 
 of unknown owners. Sup. Ct., 1873, Sanford v. 
 
JUDICIAL NOTICE- 
 
 -JURISDICTION. 
 
 417 
 
 White, 46 How. 205; Afl'd, S. C, 56 N. Y. (11 
 Sick.) 359. 
 
 5. The purchaser of real estate at a judicial 
 sale is entitled to a satisfactory record title ; and 
 if the title is derived through a will of real 
 estate, he is entitled to demand that such will 
 be duly established before a surrogate having 
 competent jurisdiction, and the proofs and ex- 
 aminations duly certified and recorded, before 
 he can be compelled to complete his purchase. 
 N. Y. C. P., Sp. T., 1873, Tkmn v. Shiel.U Abb. 
 N. S. 81. 
 
 6. Where upon the proofs the title was invalid, 
 — Seld, that the purchaser was entitled to be 
 discharged from his purchase and have his pay- 
 ments and the expenses of examining the title, 
 refunded, with costs. lb. 
 
 7. Payment of liens. A referee appointed 
 to make sale of mortgaged premises under a 
 decree of foreclosure, which directs him first to 
 pay off certain liens, and from the residue pay 
 the judgment and costs, must follow the direc- 
 tions of the decree as to the payment of such 
 liens, and if he disregards them it is at his peril. 
 Ot. App.j 1873, People ex rel. Day v. Bergen, 15 
 Abb. N. S. 97 ; S. C, 53 N. Y. (8 Sick.) 404. S. 
 P. Morange v. Morris, 8 Abb. Ct. App. 314. 
 
 8. He cannot relieve himself of that duty by 
 stipulations in the terms of sale, that the pur- 
 chaser shall pay them and be allowed therefor, 
 but the latter may pay the whole price and 
 compel the referee to execute the judgment, 
 lb. 
 
 9. Deed. The phrase " valid and sufllcient 
 deed," in an order for the conveyance of prop- 
 erty under a foreclosure sale, means simply a 
 deed in form and terms sufficient to make the 
 title obtained by if as valid to the purchaser as 
 it is in the power of the referee officially to make 
 it. Ct. App., 1878, Easton v. Pickersgill, 55 N. 
 Y. (10 Sick.) 810. 
 
 10. What passes by. A deed given to a 
 purchaser at a foreclosure sale, at the expiration 
 of a term of credit, does not relate back, so as 
 
 - to entitle him to the rents accruing between the 
 date of the sale and the delivery of the deed. 
 Ct. App., 1871, Cfheney v. Woodruff, 45 N. Y. (6 
 Hand,) 98. 
 
 11. Title of purchaser pending appeal. 
 One who purchases at a judicial sale, obtains a 
 good title, notwithstanding the pendency of an 
 appeal on which the judgment may afterward 
 be reversed, unless a stay of proceedings was 
 obtained on such appeal ; and it makes no dif- 
 ference that the purchaser is a party to the suit. 
 N. Y. C. P., Bening v. Punnett, 4 Daly, 643. 
 
 12. Setting aside. A collusive arrangement 
 to prevent competition at a judicial sale, and a 
 sale made in pursuance thereof to the injury of 
 a party, and especially of an infant, are frauds 
 in law, and entitle the party injured, as a matter 
 of right, to have the sale set aside. Ct. App., 
 1873, Howell v. Mills, 53 N. Y. (8 Sick.) 322. 
 
 13. Such a sale cannot be sustained, though 
 the motive was not fraudulent in fact ; nor can a 
 guardian ad litem for an infant defendant, by 
 joining in such a collusive arrangement, con- 
 clude or bind his principal. lb. 
 
 14. A refusal to grant relief upon a summary 
 application, is not, except under very special 
 circumstances, a final adjudication of the merits 
 and a bar to an action for relief. Hence, so 
 much of an order denying a resale as assumed 
 to limit the time and prescribe terms for bring- 
 ing an action for relief, — Held, erroneous. lb. 
 
 15. An infant is the ward and entitled to the 
 protection of the court, as well upon summary 1 
 
 27 
 
 application as in a formal action ; and, the right 
 to relief once established, it is not within the 
 discretion of the court absolutely to reject the 
 summary application and remit the infant to his 
 action. lb. 
 
 16. It is the duty of an officer, in selling real 
 estate, to see that a fair opportunity is given for 
 persons interested to be present, and to wait a 
 reasonable time for that purpose after the hour 
 advertised j and if there are no bidders present, 
 or no one to represent the plaintiff, and no ade- 
 quate bid is made, he should postpone the sale. 
 A sale made 10 minutes after- the advertised 
 tinie, upon the only bid made, and before the 
 plaintiff or any one in his behalf appeared, set 
 aside and a re-sale ordered. Sup. Ct., Sp. T., 
 1872, Williams v. Williams, 42 How. 411. 
 
 17. If the judgment on which an execution 
 was issued was in fact paid before a sale of real 
 estate under such execution, it seems such sale 
 would be void and no title could be acquired 
 under it, even by a bona fide purchaser ; but the 
 judgment debtor or one claiming under him could 
 maintain an action to set aside the sale and the 
 sheriff's deed executed in pursuance thereof, as 
 a cloud upon his title. Ct. App., 1875, Stilwell v. 
 Carpenter, 59 N. Y. (14 Sick.) 414. 
 
 JUDICIAL NOTICE. 
 See Evidence. 
 
 JURAT. 
 See Pleadiko ; peacticb. 
 
 JURISDICTION. 
 
 I. Genekal Pkinoiples , 417 
 
 II. Jurisdiction op State Cotjkts 419 
 
 III. Jukisdiction op U. S. Coukts 421 
 
 I. Genekal pkinoiples. 
 
 1. How acquired. When the jurisdiction 
 of an inferior or limited tribunal is made to de- 
 pend on the return of process in a given form, or 
 proof of a particular fact, and the return is not 
 substantially in the form prescribed, or the fact 
 is not proved, the court or officer does not ac- 
 quire jurisdiction, and the proceedings are utterly 
 void. Sup. Ct., 1862, Stone v. Miller, 62 Barb. 
 430. 
 
 2. The jurisdiction of a justice of the peace to 
 proceed in an action commenced by an attach- 
 ment under sec. 33 of the non-imprisonment act 
 (4Edm. Stats. 472), depends upon its appearing 
 by the return that property has been attached, 
 and that cannot appear unless the return shows 
 a service in conformity to statute. lb. 
 
 3. In such a case, the defendant being a non- 
 resident, the attachment must be served by leav- 
 ing copies of it and the inventory with the person 
 in possession of the attached property ; and if 
 the officer's return does not show such service, 
 the justice has no jurisdiction to proceed in the 
 case, and a. judgment entered by him therein will 
 be void. lb. 
 
 4. Appearance. A voluntary and general 
 appearance in an action, not only gives jurisdic- 
 tion of the parties, but cures any irregularity in 
 
418 
 
 JURISDICTION. 
 
 the service of process. Sup. Ct, 1873, Carpentier 
 v. Minturn, 65 Barb. 293. 
 
 5. A foreign corporation, sued in a court of 
 this State liaving jurisdiction of the class of 
 actions, for a cause of action arising out of this 
 State, cannot avail itself of the provision of 
 sec. 427, of the Code, or object to the jurisdiction 
 of the court, after an unqualified appearance, 
 lb. 
 
 6. Where a court has jurisdiction of the sub- 
 ject-matter, consent will confer jurisdiction of 
 the person ; and such consent may be expressed 
 by a foreign corporation by appearing by attor- 
 ney and answering generally in the action. Ct. 
 App., 1872, McCormick v.Penn. Central R.R. Co., 
 49 N. Y. (4 Sick.) 303. 
 
 7. Stipulation. Parties cannot by stipula- 
 tion confer jurisdiction to grant an injunction, 
 but where such jurisdiction exists, it is compe- 
 tent for them to agree upon the terms of 
 restraint, in a proper case. N. Y. Supr. Ct., 1874, 
 Daly V. Smith, 38 N. Y. Supr. (6 J. & Sp. 158 ; 
 S. a, 49 How. 150. 
 
 8. Of extradited person. Creditors of a 
 person who has been brought from a foreign 
 country to this State by means of fraudulent 
 extradition proceedings, but who were not in 
 any way implicated in the wrong, can proceed 
 against him by summons in courts of this State, 
 notwithstanding the right of such person to re- 
 turn unrestrained to the country from whence 
 he was so extradited. Sup. Ct., 1873, Averill v. 
 Lagnwe, 14 Abb. N. S. 343, note 
 
 9. A person who has been kidnapped in an- 
 other country and brought here on pretended 
 extradition proceedings to answer a criminal 
 charge, through the fraudulent intrigue of some 
 of his creditors, is nevertheless within the juris- 
 diction of the court for the purposes of a civil 
 action by a creditor not implicated in such fraud, 
 and may be arrested in such action. Sup. Ct., 
 Sp. T., 1874, Adriance v. Laqrave, 47 How. 71; 
 S. C, 15 Abb. N. S. 272;' Rev'd, Sup. Ct., 
 1874, Bacharach v. Lagrave, 47 How. 385 ; S. C, 
 1 Hun, 689. But Aff'd, 59 N. Y. (14 Sick.) 110. 
 
 10. Brooklyn City Court. The City Court 
 of Brooklyn has no jurisdiction of an action, the 
 cause of which did not arise within the territo- 
 rial limits of that city, or of a corporation de- 
 fendant jiot located nor having a place of busi- 
 ness therein. Ct. App., 1873, Landers v. Staten 
 Island R. R. Co., 14 Abb. N. S. 346 ; S. C, 53 
 N. Y. {8 Sick.) 450 ; Rev'g 13 Abb. N. S. 338. 
 
 11. The acts of 1871 (oh. 282), and 1873 (ch. 
 239), relative to that and other local courts, so 
 far as they attempt to extend their jurisdiction 
 to persons and matters, the subjects of actions, 
 in other parts of the State outside the localities 
 wherein those courts were established, are un- 
 constitutional, lb. 
 
 12. The jurisdiction of a strictly local court, 
 like the City Court of Brooklyn, cannot be ex- 
 tended to persons and subjects without the ter- 
 ritorial limits of its jurisdiction, by the mere 
 circumstance that some one or more of those 
 jointly liable chance to reside or be within the 
 jurisdiction. Ct. App., 1875, Hoaa v. Lamont, 60 
 N. Y. (15 Sick.) 96. 
 
 13. Where process against one of several 
 defendants jointly liable was served in the city 
 of Brooklyn, but the others did not reside and 
 were not served therein ; — Held, that a joint 
 judgment against all was void for want of juris- 
 diction ; but, it seems, that in such case the 
 judgment might be in form against all, but to 
 affect only the individual property of the de- 
 fendant served and the joint property of all. lb. 
 
 14. Court of Common Pleas. The Court 
 
 of Common Pleas, of New York City cannot 
 acquire jurisdiction of an action on contract for 
 the recovery of money only, against a non-res- 
 ident defendant, by service of summons by 
 publication, and the issue and levy of an attach- 
 ment, as a provisional remedy, upon his property 
 in the county. N. Y. G. P., 1874, Tmvle v. 
 Cmert, 15 Abb. N. S. 193. 
 
 15. In such a case, the order of publication 
 and all proceedings under it, and the levy of the 
 attachment will be set aside, but the warrant of 
 attachment will not necessarily be set aside, 
 since it may be issued before service of sum- 
 mons, lb. 
 
 16. Where one of 'the parties to an action to 
 enforce a trust is a resident of the city of New 
 York, and one of the agreements was to have been 
 performed there, the Court of Common Pleas of 
 New York has jurisdiction of the action. N. Y. 
 C. P., Thornton v. St. Paul %• Chicago Ry. Co., 45 
 How. 416. 
 
 17. The Superior Court of Buffalo has 
 jurisdiction of an action against the supervisors 
 of Erie county to recover back an alleged illegal 
 tax, where the summons is personally served 
 upon the clerk of the board in that city. Com. 
 App., 1871, Buffalo and State Line R. R. Co. v. 
 Supervisors of Erie County, 48 N. Y. (3 Sick.) 93. 
 
 18. The ' Superior Court of New York 
 City has jurisdiction of an action to foreclose 
 a mortgage, and of parties who are served with 
 process in the county, or who appear by attor- 
 ney, that being equivalent to personal service. 
 N. Y. Supr. Ct., 1875, Schmalholz v. Polhaus, 49 
 How. 59. 
 
 19. The Supreme Court has jurisdiction 
 of an action to determine tlffe title to real prop- 
 erty ; and having obtained jurisdiction of the 
 parties, it is its duty to determine whether the 
 action can be maintained and the relief claimed 
 can be granted, arid, even if these questions are 
 erroneously determined, it does not affect the 
 question of jurisdiction, but the error can be 
 corrected only in some one of the regular modes 
 of review provided by law. Com. App., 1871, 
 Fisher v. Hepburn, 48 N. Y. (2 Sick.) 41. 
 
 20. Exhausted, when. When a criminal, 
 under a valid judgment, has fully suffered one 
 of the alternate punishments to which alone the 
 law subjected him, the power of the court to 
 punish further is exhausted ; and a judge who 
 in such a case attempts to exercise the power to 
 punish further is liable therefor to the party 
 injured. Sup. Ct., Sp. T., 1875, Lange v. Bene- 
 dict, 48 How. 465. 
 
 21. Vacating judgment, &o. Every court 
 of record, unless restrained by positive enact- 
 ment, lias the power, on motion, to vacate its 
 judgment or process to prevent a perversion 
 thereof, or to frustrate oppression. N. Y. Supr. 
 Ct., 1874, Morgan v. Holladay, 38 N. Y. Supr. 
 (6 J. & Sp.) 117. 
 
 22. Want of jurisdiction of the subject- 
 matter of a suit and of the parties to be bound 
 thereby, renders a judgment in such suit utterly 
 void. Sup. Ct., 1870, Phelps v. Baker, 41 How. 
 237 ; S. C, 60 Barb. 107. 
 
 23. Service of process by publication is valid 
 within the jurisdiction by whose laws it is au- 
 thorized, but of no validity beydnd such juris- 
 diotion. lb. 
 
 24. Service by posting citations in public 
 places within the jurisdiction of the court in 
 which proceedings to obtain judgment are insti- 
 tuted, can confer no legitimate jurisdiction over 
 foreigners who are non-residents, and do not 
 
JURISDICTION. 
 
 419 
 
 appear to answer to it, whether they have notice 
 of it or not. lb. 
 
 25. As to all purely statutory proceedings, a 
 want of compliance in any essential respect with 
 the requirements of the statute, renders the de- 
 termination ultimately made a nullity ; and tliis 
 want of jurisdiction may be inquired into in a 
 collateral proceeding. Sup. Ct., 1875, Brown v. 
 Mayor, etc. of New York, 8 Hun, 685. 
 
 26. A judgment recovered in a court of re- 
 cord of another State is not conclusive as to the 
 jurisdiction of that court, but it may be ques- 
 tioned in an action here upon such judgment. 
 "Sup. Ct. Cir., 1873, Sheriff v. Smith, 47 How. 
 470. 
 
 27. If it appears from the record that it».was 
 clearly establislied on the trial that there was no 
 personal service of process on one of the joint 
 defendants, and that he did not appear nor au- 
 thorize any attorney to appear for liim, it will 
 be held that the court acquired no jurisdiction 
 of stch defendant. lb. 
 
 II. JuRiSDicTioK OP State Cotikts. 
 
 28. Concurrent. The State courts have 
 concurrent jurisdiction with tliose of the United 
 States only of actions arising incidentally from 
 acts of Congress passed to carry into effect a 
 power conferred upon it by the constitution, and 
 of which those courts had jurisdiction before the 
 adoption of the constitution. Sup. Ct, 1873, 
 Gilbert v. Priest, 14 Ablj. N. S., 165 ; S. C, 65 
 Barb. 444 ; Eev'g S. C, 63 Barb. 339. 
 
 29. Alien plaintiff. The right of an author 
 in his literary productions is a right of property, 
 and the State courts have jurisdiction, as in 
 other actions affecting common-law rights or 
 property interests, to entertain an action to 
 restrain the publication of an uncopyrighted 
 and unpublished manuscript. Ct. App., 1872, 
 Palmer v. DeWitt, 47 N. T. (2 Sick.) 532; Aff'g 
 S. C, 40 How. 293 ; 2 Sweeny, 530. 
 
 30. The fact that the author is an alien is no 
 obstacle to his proceeding in tlie courts of a 
 State for tlie protection of his property right. lb. 
 
 31. Action under act of Congress. An 
 action to enforce the liability of a master or 
 owner of a steam vessel, imposed by sec. 43 of 
 the act of Congress of 1871, for the better pro- 
 tection of the lives of passengers on board 
 vessels propelled by steam (16 U. S. Stats, at 
 Large, 440), may properly be brought in the State 
 Supreme Court. Ct. App., 1874, Carroll v. Staten 
 Isl. R. R. Co., 58 N. Y. (13 Sick.) 126 ; Aff'g S. 
 C, 65 Barb. 32. 
 
 32. Action for duties. A State court has 
 jurisdiction of an action by the United States to 
 recover impaid duties on imported goods, the 
 primary object being to collect a debt due the 
 plaintiff on an implied contract, not simply to 
 enforce its laws. Sup. Ct,, 1875, United States 
 V. Graf, 4 Hun, 634. 
 
 33. Whether such court would have jurisdic- 
 tion of an action for the latter purpose alone, 
 query f lb. 
 
 34. Action by assignee in bankruptcy. 
 The courts of tliis State have concurrent juris- 
 diction with the United States Courts, over 
 all actions, legal or equitable, brought by an 
 assignee in bankruptcy to try and determine 
 rights of property claimed by him as such. Ct. 
 App., 1873, Cooh V. Whipple, 55 N. T. (10 Sick.) 
 150. S. P., Gilbert v. Farman, 46 How. 222 : 
 Per contra, Gilbert v. Priest, 14 Abb. N. S. 165. 
 
 85. Section35of the Bankrupt Act, authorizing 
 the recovery of property transferred by an insol- 
 
 vent for the purpose of giving preferences to 
 creditors, simply makes fraudulent transfers 
 which were not such at common law, without 
 limiting the jurisdiction of the State courts, as 
 previously existing, over actions founded on the 
 fraud. The right of recovery thus given is 
 in no sense a penalty imposed upon the party 
 receiving the property, so that the cases holding 
 that State courts have no jurisdiction of penal- 
 ties given by acts of Congress have no appli- 
 cation, lb. 
 
 36. Having jurisdiction, it is not in the dis- 
 cretion of the State Courts, to exercise it or 
 not ; but it is their duty to do so when called 
 upon in the mode prescribed by law. lb. 
 
 37. Action against bankrupt. The com- 
 mencement of proceedings in involuntary bank- 
 ruptcy against tlie owners of the equity of 
 redemption of mortgaged property, after the 
 commencement of an action in a State court to 
 foreclose the mortgage, does not affect the juris- 
 diction of the latter court in such action, espe- 
 cially, where the bankruptcy court expressly per- 
 mits the foreclosure to proceed, and no assignee 
 is appointed before the sale thereon. Sup. Ct., 
 
 1873, Lenihan v. Hamann, 14 Abb. N. S. 274. 
 
 38. — against national bank. The Su- 
 preme Court of this State has jurisdiction of an 
 action and of attachment proceedings com- 
 menced therein against an insolvent national 
 bank of another State, on a bill of exchange 
 drawn by it, where the attachment has been 
 levied on funds of sucli bank on deposit with a 
 bank of this State, even though such defendant 
 bank became insolvent a few days prior to the 
 commencement of sucli action, and a receiver 
 thereof was appointed a few days afterward ; 
 consequently, the attachment proceedings will 
 not be set aside on motion of such receiver. Sup. 
 Ct., 1873, Allen v. Scandinavian National Bank, 
 
 46 How. 71. 
 
 39. The power given by the national currency 
 act (13 Stats, at Large, 99), of bringing actions 
 against National banks in the courts of the 
 United States, or in the State or municipal 
 courts of the place where such an association is 
 located, must be regarded as permissive, not 
 mandatory ; and the jurisdiction conferred is 
 not exclusive, but resides as well in the courts 
 of other States. Ct. App., 1873, Cooke v. State 
 National Bank of Boston, 52 N. Y. (7 Sick.) 96. 
 
 40. It seems, it would not be competent for 
 Congress to deprive the State courts of juris- 
 diction in all actions against these banking asso- 
 ciations, lb. 
 
 41. — involving validity of patent. A 
 State court has jurisdiction of an action on a 
 bond given for a patent right, notwithstanding 
 the validity of the patent may come in question 
 therein. Ct. App., 1872, Middlebrook v. Broadbent, 
 
 47 N. Y. (2 Sick.) 443. S. P., Beebe v. McKenzie, 
 id. 662. 
 
 42. The courts of this State have no jurisdic- 
 tion of an action to restrain the infringement of 
 a patent, or an injury to rights claimed under the 
 patent laws of the United States. Com. App., 
 
 1874, Hovei/ v. Rubber Tip Pencil Co., 57 N. Y. (12 
 Sick.) 119'; Aff'g S. C, 33 N. Y. Supr. (1 J. & 
 Sp.) 522. 
 
 43. They cannot therefore restrain by injunc- 
 tion the issuing of circulars by parties claiming 
 the exclusive right to manufacture and sell cer- 
 tain articles under patents owned by them, cau- 
 tioning the people against buying of unauthorized 
 persons, upon the application of other parties 
 claiming tlie same right under other patents. lb. 
 
 44. — against foreign corporation. The 
 
420 
 
 JURISDICTION. 
 
 Supreme Court has jurisdiction of an action by 
 a resident plaintiff against a corporation of an- 
 otlier State, to procure the sale of bonds delivered 
 by such corporation as collateral security for its 
 notes, wherein the summons' is served by publi- 
 cation. Sup.<^., 1875, Coffin v. Chi. Sr iV- P- 
 Construction Co., i Hun, 625. 
 
 45. Where a foreign corporation is joined as a 
 defendant with persons who are residents, in an 
 action to recover the property and assets of an- 
 other corporation alleged to have been fraudu- 
 lently sold to it, and some of the defendants ai^e 
 sought to be charged personally, jurisdictiBn 
 over the persons of the defendants confers juris- 
 diction of the cause of action. Sup. Ct., Sp. T., 
 1875, Allen v. New Jersey Southern R. R. Co., 49 
 How. 14. 
 
 46. A court of this State has no jurisdiction of 
 an action having reference to the obligations 
 and business of a foreign corporation, and involv- 
 ing an examination of questions relating to a 
 subject over which it has no control ; nor can it 
 acquire such jurisdiction by an action against 
 resident directors. N. Y. Supr. Ct., 1874, Chase 
 V. Vanderbili, 37 N. Y. Supr. {5 J. & Sp.) 334. 
 
 47. Courts of this State have no such jurisdic- 
 tion over a foreign corporation as would author- 
 ize them to render a judgment directing a divis- 
 ion of its assets, either in whole or in part, 
 among its stockholders, even where some of the 
 directors are resident here, or some of the funds 
 within the jurisdiction of the court. Sup. Ct., 
 Sp. T., 1872, Redmond v. Enfield Man/. Co., 13 
 Abb. N. S. 332. 
 
 48. A court of equity may interfere by way of 
 injunction or receivership, to prevent a fraud 
 upon the company or the stockholders, or to aid 
 a receiver diUy appointed by the courts of the 
 State of such corporation in obtaining possession 
 of its property. lb. 
 
 49. Where a fund belonging to a foreign cor- 
 poration, which has commenced proceedings in 
 its home State for a dissolution and division of 
 its property among its stockholders, is deposited 
 with one of its officers in this State, who refuses 
 to pay over the same to the persons entitled 
 thereto, and who is shown to be an unsafe de- 
 positary thereof, and the oorpora,tion has no 
 property and no.directors in this State, but its 
 affairs are managed and the meetings of its 
 directors held here, the Supreme Court has 
 jurisdiction of an action by a stockholder resid- 
 ing here, to secure the appointment of a receiver 
 of such corporation to take and hold such fund 
 and pay its creditors therefrom, and divide the 
 residue among the stockholders. Sup. Ct., 1874, 
 Redmond v. Hoge, 3 Hun, 171. 
 
 50. — against State. The court of one 
 State cannot obtain jurisdiction of another State 
 by joining with it as defendant one of its officers, 
 against whom no cause of action exists and no 
 judgment can be had, by service of process on 
 such officer and attachment of money of such 
 State in his hand^ within the jurisdiction of such 
 court. Sup. Ct., Sp. T., 1871, Stockwell v. Bates, 
 10 Abb. N. S. 381. 
 
 51. — for torts in another State. The 
 courts of this State have jurisdiction of an ac- 
 tion, brought here, between residents of another 
 State, for a fraudulent conversion of trust funds 
 by the defendant in that State, if he be found 
 and served with process in this State ; and he 
 may be arrested in such action, even though by 
 the law of his place of residence he could not 
 be arrested there for the same cause. Sup. Ct., 
 Sp. T., 1871, Johnson v. Whitman, 10 Abb. N. S. 
 111. 
 
 52. A court of this State has no jurisdiction 
 of an action against a railroad company organ- 
 ized here, for an injury to trees arid plants 
 growing on plaintiff's lands, in New Jersey, by 
 negligently causing sparks and burning wood to 
 be thrown on them from its trains. The remedy 
 must be sought in the State where the lands are 
 situated. N. Y. Supr. Ct., Sp. T., 1874, Huener- 
 mund V. Erie Railway Co., 48 How. 55. 
 
 53. It is settled that courts of this State will 
 entertain jurisdiction of actions for personal 
 injuries committed out of this State, when both 
 or either of the parties are citizens of the United 
 States. Sup. Ct., 1874, Newman v. Goddard, 48 
 How. 363 ; S. C, 3 Hun, 70. 
 
 54. Admiralty. The intent of the provisions 
 of the acts of Congress (1 U. S. Stats, at Large, 
 76 ; 5 U. S. Stats, at Large, 726), saving the right 
 to pursue common-law remedies in the State 
 courts in certain cases of admiralty jurisdiction, 
 was to save the remedy or right of action in 
 those courts which proceed according to the 
 common-law, as distinguished from the course 
 of admiralty ; and if the common-law is com- 
 petent to give a remedy, the suitor bas the 
 option of there seeking his redress, whether the 
 action is to enforce a common-law right, or is 
 bSsed upon a statute. Sup. Ct., 1872, Dongan v. 
 Champlain Transportation Co., 6 Lans. 430 ; AfE'd, 
 S. C, 56 N. Y. (11 Sick.) L 
 
 55. The Supreme Court of this State has 
 jurisdiction of an action against the owners of a 
 steamboat, navigating Lake Champlain, for 
 causing the death of plaintiff's Intestate by 
 negligence while a passenger on such boat 
 within the limits of this State. lb. 
 
 66. Such jurisdiction is not taken away by 
 ch. 43, acts of Congress of 1851, hmiting the 
 liability of shipowners, and for other purposes. 
 Where the injury is confined to one party, the 
 limited liability prescribed by that act (sec. 3) 
 can be equally as well enforced in a common-law 
 action as though no such limit had been im- 
 posed. Ct.App., 1873, S. C, 56 N. Y. (11 Sick.) 1. 
 
 57. The State courts have no jurisdiction of 
 actions against the owners of vessels to which 
 the act of Congress of March 3, 1851, applies, to 
 recover damages for a loss of property or injury 
 to the person, by a fire on such vessels, unless 
 the common-law can give him a remedy. Sup. 
 Ct., 1872, Chisholm v. Northern. Trans. Co., 61 
 Barb. 363. 
 
 58. A State court has jurisdiction, under sec. 
 30 of the act of 1852, modifying the act of 1851, 
 of an action against a shipowner for damage to 
 a " passenger or his baggage," since the com- 
 mon-law affords a remedy therefor, and none is 
 provided by the act itself. lb. 
 
 59. Maritime contract. The Supreme 
 Court has jurisdiction over a contract to trans- 
 port cattle across the St. Lawrence River, and 
 of an action to recover damages for an injury 
 caused by negligence in the performance of 
 fluch contract. Com. App., 1874, Bairdy. Daily, 
 57 N. Y. (12 Sick.) 236 ; Rev'g S. C, 4 Lans. 426. 
 
 60. Such a case comes within the saving 
 clause of the 9th section of the TJ. S. Judiciary 
 Act of 1789 ; and the act of Congress of 1851 (9 
 U. S. Stats, at Large, 635) does not prevent, or 
 in any manner limit, restrict, or qualify the 
 jurisdiction of the State courts, except where 
 proceedings have been taken under it by a 
 party interested. Its provisions, if applicable, 
 could only be used or interposed as a partial 
 defense to an action in a State court. lb. 
 
 61. The claim of a stevedore for loading a 
 vessel is not the subject of admiralty jurisdic- 
 
JUROR— JUSTICE OF THE PEACE. 
 
 421 
 
 tion, the contract out of which it arises not being 
 a maritime contract. N. Y. Supr. Ct., 1871, 
 Fisher v. Luling, 33 N. Y. Supr. (1 J. & Sp.) 
 337. 
 
 62. Where the admiralty jurisdiction attaches, 
 it is exclusive ; but where admiralty has no 
 jurisdiction, the jurisdiction of the State courts 
 is unimpaired and operative. lb. 
 
 68. Obstructing harbors. The State, or 
 its municipalities under it, may pass all laws or 
 • ordinances for the government of harbors within 
 their limits, not in conflict with the constitution 
 or laws of the United States, and violatiorvs 
 thereof will be within the jurisdiction of the 
 State courts. Sup. Ct., 1872, City of Ogdens- 
 burg T. Lyon, 7 Lans. 215. 
 
 in. Jurisdiction of United States courts. 
 
 64. In general. Judicial power, within the 
 meaning of art. 3 of the U. S. Constitution, is 
 that power by which judicial tribunals construe 
 tlie constitution, the laws enacted by Congress, 
 and the treaties made with foreign powers or 
 with Indian tribes, and determine the rights of 
 parties in conformity with such construction. 
 Sup. Ct., 1878, Gilbert v. Priest, 14 Abb. N. S. 
 165 ; S. C, 65 Barb. 444 ; Eev'g S. C, 63 Barb. 
 839. 
 
 65. The construction and enforcement by ju- 
 dicial action of a law enacted by Congress to 
 carry into effect any of the powers conferred 
 upon it by the constitution belongs exclusively 
 to courts of the United States, and State courts 
 can pass upon them only incidentally. lb, 
 
 66. State and Umted States courts. 
 The jurisdiction of the courts of the United 
 States, in enforcing laws enacted by Congress 
 in conformity to the constitution, becomes abso- 
 lutely exclusive, and State courts have no power 
 to interfere with the enforcement thereof by 
 those courts. Sup. Ct. Sp. T., 1873, People ex 
 rel. Macdonnell v. Fiske, 45 How. 294. 
 
 67. Where a person is in tlie custody of a U. 
 S. Marshal, under an extradition warrant issued 
 after proceedings before a U. S. Commissioner 
 under the Act of Congress on that subject, a 
 State court has no jurisdiction to review such 
 proceedings. lb. 
 
 68. The admiralty and maritime juris- 
 diction conferred by the constitution upon the 
 courts of the United States extends over vessels 
 enrolled and licensed for the coasting trade, and 
 engaged in transporting freight and passengers 
 on the rivers and lakes, and over the waters 
 traversed by them. Sup. Ct., 1872, Chisholm v. 
 Northern Trans. Co., 61 Barb. 363. 
 
 69. An action against the owner of a steam- 
 boat to recover damages for a loss of property 
 or an injury to the person, by fire occurring 
 thereon, is one of admiralty and maritime juris- 
 diction, of which the District Court of the United 
 States has exclusive jurisdiction, unless the 
 common law is competent to give a remedy. lb. 
 
 70. The Act of Congress of March 3, 1851, 
 limiting the liability of vessel owners, is a valid 
 enactment ; and, as it provides remedies which 
 a court of common-law is not competent to 
 administer, the courts of the United States have 
 exclusive jurisdiction of cases to which that act 
 applies. lb. 
 
 71. Action by assignee in bankruptcy. 
 The jurisdiction of courts of the United States 
 in actions brought by assignees in bankruptcy, 
 under the provisions of the U. S. Bankrupt 
 Act, such as one to avoid a conveyance by the 
 bankrupt, solely on the ground that it is in con- 
 
 travention of the Bankrupt Act, is exclusive, 
 and State courts have no jurisdiction thereof. 
 Sup. Ct., 1873, Gilbert v. Priest, 14 Abb. N. S. 
 165 ; S. C. 65 Barb. 444 ; Rev'g S. C, 63 Barb. 
 339, per contra. See Cook v. Whipple, 55 N. Y. 
 (10 Sick.) 150. 
 
 72. Courts of this State will not entertain 
 jurisdiction of an action for the sole purpose of 
 enforcing the penal consequences imposed by 
 a law of the Federal Government, e. g., to avoid 
 a preference obtained by creditors of a bank- 
 rupt. BuS. Supr. Ct., Sp. T., 1873, Shaw v. Mel- 
 drum, 14 Abb. N. S. 165, note. 
 
 73. By consent. A party who appears by 
 counsel in a proceeding for the determination of 
 conflicting claims to money in the hands of a 
 sheriff, commenced by an assignee in bankruptcy 
 before the U. S. District Court by petition, in- 
 stead of bill in equity, and consents to an order 
 referring it to a register, thereby confers upon 
 the court jurisdiction over his person, and the 
 court has the right to retain the controversy for 
 final adjudication, notwithstanding such party 
 takes objection to the jurisdiction before the 
 register. Sup. Ct., 1875, People ex rel. Jennys v. 
 Brennan, 3 Hun, 666. 
 
 JUROR. 
 
 1. Resident tax-payer. Except in actions 
 to recover a penalty or forfeiture, or where the 
 city charter has removed the common-law disa- 
 bility, a resident tax-payer of a city is not com- 
 petent as a juror in an action in which the cor- 
 poration is interested as a party. Com. App., 
 1873, Diveny v. City of Elmira, 51 N. Y. (6 Sick.) 
 506. 
 
 2. A provision of a city charter that " the city 
 shall be regarded as a town under the provisions 
 of title 4, chap. 7, Part IIL of the Revised Stat- 
 utes, respecting the return of jurors," does not 
 operate to remove the disability. lb. 
 
 8. Employee in iron manufactory. A 
 person employed by the year in an establish- 
 ment where castings, farming implements, etc., 
 are made from melted pig and old iron, is not 
 exempt from jury service under 2 E. S. 415, sec. 
 33 (2 Edm. Stats. 432), that not being an "iron 
 manufacturing company," within the meaning 
 .of that statute. Sup. Ct., 1871, People ex rd. 
 Blake v. Holdridge, 4 Lans. 511. 
 
 4. The fact that the person so employed was 
 a partner having an interest in the profits, would 
 not prevent his being exempt if the establish- 
 ment was within the act. lb. 
 
 JUSTICE OF THE PEACE. 
 
 1. Who is. The judges of the Court of Com- 
 mon Pleas have, ex officio, all the authority, 
 within their jurisdiction, of justices of the peace 
 in the several counties, and may perform any 
 acts authorized to be performed by the latter. 
 N. Y. C. P., 1871, Opinion of Dalt, Ch. J., 3 
 Daly, 547. 
 
 2. Bisquallfication. An overseer of the 
 poor who prosecutes a bastardy proceeding in 
 his official capacity, is a party to the proceed- 
 ings in such a sense that a justice of the peace 
 who is a son-in-law of such overseer is disquali- 
 fied from acting officially therein, and if he does 
 so act the proceedings are void. Sup. Ct., 1871, 
 Rivenburgh v. Henness, 4 Lans. 208. 
 
422 
 
 JUSTICE'S COURT. 
 
 JUSTICE'S COURT. 
 
 1. Jurisdiction. Where a justice has two 
 offices, at which lie makes summonses returnable 
 alternately, if a constable, having a summons 
 returnable at one of such offices, serves it by 
 pretending to read it or state its contents as be- 
 ing returnable at the other of such offices, the 
 justice does not acquire anj' jurisdiction of the 
 person of the defendant, and cannot render a 
 valid judgment against him by default, even 
 though the constable returns the summons per- 
 sonally served. Sup. Ct., 1862, Waring v. Mc- 
 Kinley, 62 Barb. 612. 
 
 2. Although the defendant cannot, by a plea 
 or answer, set up such defect or want of service 
 to defeat the action, yet he may come in, and 
 by affidavit show the fact, and ask for a dismis- 
 sal of the proceedings ; and if the justice disre- 
 gards his objections, he may have a review of 
 the question, and obtain relief, on appeal from 
 the judgment. lb. 
 
 3. Appearance by attorney. If, upon the 
 return day of a summons, the plaintiff appears 
 in person, and an attorney appears for tlie de- 
 fendant, and, his autlioritj' to appear not being 
 questioned, does not prove it, but proceeds to 
 join issue with the plaintiff and agree upon an 
 adjournment, his authority is " admitted" within 
 the meaning of 2 E. S. 233, sec. 45 (2 Edm. Stats. 
 249), and the justice has jurisdiction of the de- 
 fendant's person, whether the summons was 
 served personally or by copy merely. Potter, J., 
 dissents. Sup. Ct., 1872, Sperry v. Reynolds, 5 
 Lans. 407. 
 
 4. Territorial jurisdiction. The towns of 
 Schaghticoke and Hoosic in Rensselaer County, 
 as bounded by the Revised Statutes, are sepa- 
 rated by the town of Pittsfield, and a justice in 
 one of such towns has, therefore, no jurisdiction 
 of an action between parties residing in the 
 other. Com. App., 1872, flbui/Aia/inj v. Groesbeck, 
 6 N. Y. (6 Sick.) 673. 
 
 5. In a justice's court, the objection that the 
 action is brought in a wrong county, can only 
 avail as a ground for a nonsuit. A demurrer 
 will lie only when the complaint is not sufficiently 
 explicit, or when it contains no cause of action. 
 Sup. Ct., 1872, Lapham v. Rice, 63 Barb. 485. 
 
 6. Between officers of different counties. 
 The provision of 2 R. S. 353, sec. 14, as amended 
 by ch. 201, Laws of 1843 (2 Edm. Stats, 365), that 
 actions by ccmnty or town officers of one county 
 in their official capacity against such officers of 
 another county, shall be laid in some county ad- 
 joining that of the defendants, except that of the 
 plaintiffs, does not apply to such actions in jus- 
 tices' courts, but they may be brought in the 
 county where the plaintiff resides. Ct. App., 
 1874, Lapham v. Rice, 55 N. Y. (10 Sick.) 472; 
 Rev'g S. C, 63 Barb. 485. 
 
 7. Contempt A justice's court has no 
 power to commit a witness for a refusal to 
 answer a question, except upon an affidavit 
 being made by the party at whose instance the 
 witness attended, as prescribed by 2 R. S. 274 
 sec. 279 (2 Edm. Stats. 282) ; and, therefore, it 
 cannot commit a party testifying in his own 
 behalf, for a refusal to answer a question put to 
 him on cross-examination. Sup. Ct., 1875, 
 Rutherford v. Holmes, 5 Hun, 317. 
 
 As to attachment of jurors for not attending, see 
 ch. Ii6, Laws of 1873. 
 
 8. Injuries to person. A justice of the 
 peace has jurisdiction, under subd. 2, sec. 53 of 
 
 the Code as amended in 1862, of an action for 
 injuries to the person, the right not to be sub- 
 jected to personal injury being one of the 
 "rights pertaining to the person." Ct. App., 
 1874, Coulter v. American Merchant's Un. Express 
 Co., 56 N. Y. (11 Sick.) 585. 
 
 9. Replevin. Both before and since the 
 adoption of the constitution of 1846, justices' 
 courts liave had jurisdiction of a class of actions 
 known as trespass and trover, where the title of 
 personal property was in question, and the act 
 of 1860, giving them jurisdiction of actions where 
 the property itself is claimed instead of its 
 value, does not essentially change their jurisdic- 
 tion ; nor is it obnoxious to any of the provis- 
 ions of the constitution. Herk. Co. Ct., Crouse 
 V. Walrath, 41 How. 86. 
 
 10. The legislature has power, under the con- 
 stitution, to establish the jurisdiction of justices' 
 courts and the manner of proceeding therein, in 
 all cases where not prohibited from so doing, 
 lb. 
 
 11. By short- summons. A short summons 
 can. only be issued by a justice of the peace, 
 against a person of that class who cannot, under 
 the non-imprisonment act of 1831, be proceeded 
 against by long summons, or warrant ; and that 
 he is of that class, must be made to appear to 
 tlie justice by affidavit, before he can issue such 
 process. Sup. Ct, 1871, Rue v. Perry, 41 How. 
 385 ; S. C, 63 Barb. 40. 
 
 12. Without such preliminary proof, the jus- 
 tice can acquire no j urisdiction by that process, 
 and a judgment in the action will be presumed 
 void, until the party upon whom the onus is 
 tlirowu supplies that proof. A mere memoran- 
 dum on the justice's docket " afft. short sum- 
 mons issued," is not sufficient evidence of juris- 
 diction ; and where there was no appearance by 
 defendant, the defect is not waived. lb. 
 
 13. The affidavit required by 2 R. S. 229, sec. 
 19, is a prerequisite to tlie jurisdiction of a jus- 
 tice of the peace to issue a short summons, pur- 
 suant to sec. 33 of the non-imprisonment act. 
 Sup. Ct., 1875, Wende v. Bradley, 5 Hun, 613. 
 
 14. Such affidavit need not state the residence 
 of tlie plaintiff, nor the facts in reference to his 
 claim showing it to be on contract ; but it is 
 sufficient if it states as a fact that the same is 
 upon contract, and is not for either of the causes 
 for which the defendant could be arrested under 
 the non-impvisonment act, and that the defend- 
 ant is not a resident of the county in which the 
 summons is applied for. lb. 
 
 15. An affidavit which states that plaintiff 
 " has, as he believes, a good cause of action 
 arising on contract " against the defendant, who 
 is a resident of another county, " ilpon which 
 according to the provisions of the 31st 
 section of the act to abolish imprisonment for 
 debt, &c., no warrant can issue against the said 
 defendant,"— ffeZd, sufficient. Sup. Ct., 1875, 
 Clark v. Wellington, 5 Hun, 638. 
 
 16. Attachment. In order to give a justice 
 jurisdiction to issue an attachment on the 
 ground that defendant has departed from the 
 county with intent to. defraud his creditors, 
 there must be facts positively stated in the 
 affidavit, showing his departure from the 
 county. Hearsay statements are not sufficient. 
 Sup. Ct., 1875, Sickles v. Sullivan, 5 Hun, 569. 
 S. P., Garrison v. Marshall, 44 How. 193. 
 
 17. To authorize such writ under sec. 34 of 
 the non-imprisonment act (ch. 300, Laws 1831 ; 4 
 Edm. Stats. 465), on the ground of removai of 
 property from the county, it Is material that it 
 should appear either that the defendant is a 
 
JUSTICE'S COURT. 
 
 423 
 
 resident of the State, or that he is a non-resident. 
 Sup. Ct., 1871, Garrison v. Marshall, 44 How. 
 193. 
 
 18. An application made on the grounds that 
 the defendant " has departed, and is about to 
 remove his property from the said county of C 
 — with intent to defraud his creditors," does not 
 state facts sufficient to make out a case for an 
 attachment under either of those statutes, and a 
 writ issued thereon will be void. lb. 
 
 19. An affidavit made, upon an application to 
 a justice of the peace for an attachment, which 
 states grounds for attachment under 2 E. S. 230, 
 sec. 26 (2 Edm. Stats. 245), and also under ch. 
 300, Laws 1831, sec. 30 (4 Edm. Stats. 473, sec. 
 34), will authorize its issue under either. Sup. 
 Ct., 1872, Beinmillerv.Skidmore, 7Lans. 161. 
 
 20. When a summons is taken out and subse- 
 quent proceedings are had in conformity to the 
 act of 1831, the attachment may be presumed to 
 have issued under that act, notwithstanding a 
 recital in it that it is issued" upon proof that the 
 defendant is about to depart, &c. lb. 
 
 21. In such a case, if the justice approves the 
 bond given in conformity to the act of 1831, 
 altliough there is an omission from the condition 
 prescribed thereby; it will be sufficient to uphold 
 his jurisdiction as against a stranger to the pro- 
 ceeding, lb. 
 
 22. If the judgment in a suit in which an 
 attachment has been issued is reversed on appeal 
 after sale of the property on execution, that does 
 not invalidate the levy or sale, or make the 
 officer or party a trespasser, but it merely annuls 
 the title acquired by means of the sale, and 
 entitles the owner to recover the property from 
 any one to whose possession it has come. lb. 
 
 23. In order to defeat the jurisdiction of a 
 justice in an attachment proceeding, it must be 
 made to appear that there is a total want of evi- 
 dence upon some essential point. The creditor 
 is not required to furnish conclusive evidence of 
 the facts relied on, but it is sufficient if the proof 
 has a legal tendency to make out, in all its 
 parts, a case for the issuing of an attachment. 
 Com. App., 1873, Schoonmaker v. Spencer, 54 N. 
 Y. (9 Sick.) 366. 
 
 24. An affidavit stating that the defendant 
 purchased goods on the false representations, 
 that he was in the habit of purchasing for cash 
 only, and that his stock in business was paid 
 for'; that very soon after the purchase and long 
 before the term of credit expired, he departed 
 and had not since returned ; that his stock was 
 running, down and disappearing ; that, so far as 
 could be learned from his other creditors, it was 
 all purchased on credit and not paid for ; that 
 his agent refused to turn out or sell any of said 
 stock toward the payment of the plaintiff's 
 demand ; that his stock on hand was insufficient 
 to pay his indebtedness ; and that deponent 
 believed his departure was with intent to 
 defraud, — Hdd, sufficient to warrant the issue 
 of an attachment. Johnson, C, dissents. lb. 
 
 25. An attachment issued against a non-resi- 
 dent, under sec. 33 of the non-imprisonment act 
 (4 Edm. Stats. 472), must be served by leaving 
 a copy of it and of the inventory with the per- 
 son in possession of the goods attached ; and 
 such service must appear by the officer's return, 
 otherwise the justice will have no jurisdiction 
 to proceed with the case. Sup. Ct., 1862, Stone t. 
 Miller, 62 Barb. 430. 
 
 26. Amendments. A justice of the peace 
 has power to, and may properly, allow a plain- 
 tiff to amend his complaint on the trial, by re- 
 ducing the amount of damages claimed therein 
 
 below $50, to conform to the proofs, even 
 though the effect of such amendment will be to 
 deprive the defendant of the right to a new 
 trial in case he appeals to the County Court. 
 Sup. Ct., 1872, Jaycox v. Pinneil, 62 Barb. 344. 
 
 27. The provision of sec. 173 of the Code rela- 
 tive to amendments, applies to justices' courts ; 
 and such a court has power, in an action com- 
 menced tlierein by two plaintiffs jointly, to 
 allow an amendment striking out the name of 
 one plaintiff, and dismissing the action as to 
 him. Ct. App., 1874, Lapham v. Rice, 55 N. Y. 
 (10 Sick.) 472. 
 
 28. A defendant has an absolute right to 
 amend his answer, on the adjourned day, by 
 adding thereto, as a defense, that, since issue 
 was joined, an action had been tried between 
 him and the plaintiff, in wliich the plaintiff had 
 set up as a counterclaim the same claim on 
 which the pending suit was founded, and the 
 same liad been passed upon by the jury, and the 
 justice lias no discretion to refuse to allow it. 
 Sup. Ct., 1875, Ryan v. Lems, 3 Hun, 429. 
 
 29. Where substantial justice would be pro- 
 moted by allowing an amendment of pleadings, 
 the statute (Code, sec. 64, subd. 11), makes it the 
 imperative duty of a justice to grant it on 
 proper terms. Sup. Ct., 1875, Wood v. Skultis, 
 4 Hun, 309. 
 
 30. Adjournment. A justice has a judicial 
 discretion to grant or refuse an adjournment after 
 allowing the amendment of a pleading. Under 
 subd. 11, sec, 64 of the Code, he must be reason- 
 ably satisfied of its necessity by the facts and cir- 
 cumstances presented by affidavit. Sup. Ct., 
 1871, Sherar v, Willis, 5 Lans. 329. 
 
 31. Where the defendant was prevented from 
 setting up payment in addition to a general 
 denial, on joining issue, by the statement of the 
 justice, in presence and hearing of the plaintiff, 
 that it could be proved under the latter plea, — 
 Held, that it was not error, nor an abuse of dis- 
 cretion to refuse the plaintiff a further adjourn- 
 ment, after allowing the answer to be amended 
 on the adjourned day to set up payment. lb. 
 
 32. Pleadings. In an action upon a promis- 
 sory note an answer of general denial and pay- 
 ment, — Held sufficient to render admissible 
 proof that such note was given for the supposed 
 balance on a note of another person, and that 
 the latter note had previously been paid in fulL 
 Sup. Ct., 1871, Evans v. Williams, 60 Barb. 346. 
 
 33. No formal reply is necessary in a justice's 
 court to enable the plaintiff to give evidence 
 in answer to a set-off claimed by the defendant. 
 Sup. Ct., 1874, Wilcox v. Palmeter, 2 Hun, 517. 
 
 34. Plea of title. A justice of the peace 
 has jurisdiction of an action for obstructing 
 a highway ; and a plea of title is no bar to such 
 an action in that court. Sup. Ct, 1865, Chapman 
 V. Swan, 65 Barb. 210. 
 
 35. It seems that a defendant is not bound 
 to plead title in a justice's court in order to avail 
 himself of the defense of a public right of way. 
 
 36. Putting a deed in evidence for a collateral 
 purpose, as, to show the plaintiff's connection 
 with his grantor and right to pursue the reme- 
 dies given by statute to his grantor, which title 
 is not disputed by evidence, does not bring in 
 question the title of land. Sup. Ct., 1875, Clow 
 V. Van Loan, 4 Hun, 184. 
 
 37. Disregarding evidepoe. If a justice 
 erroneously admits evidence of a defense not 
 pleaded, such as payment since the commence- 
 ment of the action, he cannot afterward, and 
 after the case has been submitted to him for de- 
 
424 
 
 LACHES— LADING, BILL OF. 
 
 cision, correct the error by disregarding the 
 evidence. Sup. Ct., 1873, Hall v. Olney, 65 
 Barb. 27. 
 
 38. Objection to evidence. An objection 
 to the introduction of evidence not properljr ad- 
 missible upon a question of value, that it is 
 immaterial and improper, is sufSciently specific. 
 Sup. Ct., 1871, Roe V. Hanson, 5 Lans. 304. 
 
 39. Such an objection made and overruled is 
 enough to raise the question on appeal, and it is 
 not necessary to except to the decision of the 
 justice. lb. 
 
 40. Verdict on Sunday. If a verdict is 
 rendered on Sunday, a judgment entered there- 
 on on that day will be wholly void, but it will 
 not affect the validity of a judgment entered on 
 the following Monday. Com. App., 1871, Allen 
 V. Godfrey, 44 N. Y. (5 Hand,) 433. 
 
 41. Judgment. When a verdict has been 
 received and entered by a justice, he has no 
 further judicial power or discretion in regard to 
 it. His only remaining judicial duty is to deter- 
 mine the amount of the costs and add them to 
 the verdict ; and as the law makes a judgment 
 for this amount the only one that can be ren- 
 dered by him, an entry preceding the statement 
 thereof, of judgment for the plaintiff, is a mere 
 ministerial act, and its omission does not invali- 
 date the judgment. Ct. App., 1872, Stephens v. 
 Santee, 49 N. Y. (4 Sick.) 35; Rev'g S. C, 51 
 Barb. 532. 
 
 42. Where a justice rendered judgment within 
 four days after submission, and entered the 
 same upon his minutes of the trial, stating the 
 name of the party for wliom judgment was ren- 
 dered, and the amount of the damages and costs 
 separately, — Held, that the failure of such jus- 
 tice subsequently to enter the judgment in his 
 docket did not vitiate it, but thatactmight be 
 validly performed at any time. Com. App., 
 1871, Fish V. Emerson, 44 N. Y. (5 Hand,) 376. 
 
 43. Judgment in replevin. A judgment 
 for the plaintiff in an action for the recovery of 
 specific personal property, in a justice's court, 
 as in a like action in a court of record, should be in 
 the alternative, for the possession or the recovery 
 of possession of the property, or the value there- 
 of in case a delivery cannot be had, with dam- 
 ages for its detention, as directed by paragraph 
 10, subd. 10, sec. 53 of the Code. Buff. Supr. 
 Ct., 1872, McNamara v. Eisenleff. 14 Abb. 
 N. S. 25. 
 
 44. The plaintiff cannot waive his claim to 
 the possession, and take an absolute judgment 
 for the value, even though the defendant has 
 sold the property. lb. 
 
 45. An absolute judgment for the value in 
 such a case is not merely irregular, but it is 
 erroneous, and not amendable, and must be 
 reversed on appeal. lb. 
 
 46. Judgment, effect of. Where, upon a 
 trial before a justice both parties are fully 
 heard and the cause is submitted to the justice, 
 who renders judgment for the defendant, but 
 without costs, tliat is a final determination of the 
 matter, which would bar another action, and a 
 complete judgment from which an appeal will 
 lie. N. Y. C. P., 1869, Blum v. Hartman, 8 
 Daly, 47. 
 
 47. Transcript of judgment. It is not 
 necessary to the validity of the docketing of a 
 judgment in the County Court on a transcript 
 from a justice's judgment, that it should first 
 have been entered on a justice's docket. If 
 properly rendered and entered in his minutes of 
 trial, that is sufficient. Com. App., 1871, Fish 
 y. Emerson, 44 N. Y. (5 Hand,) 376. 
 
 48. A mistake in docketing a transcript by 
 stating the rendition of judgment as of several 
 days prior to the true date, will not vitiate it. lb. 
 
 49. Execution, form of. An execution 
 issued by a justice of the peace who has general 
 jurisdiction to issue such process upon judgments 
 in his court, is sufficient to protect the officer 
 executing it, if in the ordinary form, without 
 anv statement of jurisdictional facts. Sup. Ct., 
 1875, Field v. Parker, 4 Hun, 342. 
 
 50. Action on undertaking. An under- 
 taking, given upon the commencement of an 
 action of replevin in a justice's court, con- 
 ditioned "for the prosecution of said action, 
 and the return of said property to the defend- 
 ant, if return thereof be adjudged, and for the 
 payment to the defendant of such sum as may, 
 for any cause, be recovered against said plain- 
 tiff," extends to all the proceedings and adjudi- 
 cations in the same action, through every court 
 by which it may be carried by appeal ; and an 
 action can be maintained thereon in case the 
 plaintiff is finally defeated. Sup. Ct., 1871, 
 Letson V. Dodge, 61 Barb. 125. 
 
 51. It is not necessary, in order to maintain 
 such action, that an execution should have been 
 first regularly issued and returned unsatisfied ; 
 the provisions of the Revised Statutes on that 
 subject, if still in force, noj^ being applicable to 
 actions commenced in justices' courts. lb. 
 
 52. Costs on appeal. Specifications, in a 
 notice of appeal by a defendant from a judgment 
 against him, as grounds of error, that — " 1. The 
 judgment should have been for defendant with 
 costs ; 2. The plaintiff was entitled to recover 
 no more than $10, if anything," are not 
 sufficient to entitle him to costs, although the 
 judgment on appeal is more favorable to him by 
 $10. Sup. Ct., 1870, Bancroft, v. Shannon, 42 
 How. 1. 
 
 53. The requirement of sec. 371 of the Code, 
 as amended in 1866, that the appellant shall 
 " state what should have been the amount " of 
 the judgment, is not complied with by claiming 
 an entire reversal, or by stating that it should 
 not have been more than a specified sum. lb. 
 
 See Appeal. 
 
 LACHES. 
 See Bills and notes. 
 
 1. Delay in motion. After a delay of 
 seven years between the time of plaintiff's 
 stipulating to file additional security and of de- 
 fendant's motion to enforce it, the court cannot 
 make an order requiring him to carry out such 
 stipulation. N. Y. Supr. Ct., 1874, Roberts v. 
 White ; 37 N. Y. Supr. (5 J. & Sp.) 168. 
 
 2. Defendants who, with full knowledge of 
 the facts, move to open the case, and after a 
 long delay withdraw that motion, and after that 
 accept a dividend, are guilty of laches, and 
 the court will not favor them on a subsequent 
 motion for the same relief. Sup. Ct., 1876, 
 Dinsmore v. Adams, 49 How. 238. ^ 
 
 LADING, BILL OF. 
 See Bill op lading ; ships, bto. 
 
LAND— LANDLORD AND TENANT. 
 
 425 
 
 LAKD. 
 See Deed ; Beal Propektt. 
 
 LANDLORD AND TENANT. 
 
 L The LEASE 423 
 
 1. What is ; construction ; validity. 
 
 2. Covenants ; forfeiture ; rights of land- 
 lord. 
 
 II. Assignment of lease ; eights and 
 
 LIABILITIES OF ASSIGNEE 429 
 
 in. Emblements ; pixtubes 429 
 
 IV. Termination 430 
 
 V. Actions foe bent, or use and occupa- 
 tion ; defenses 430 
 
 VI. Miscellaneous rights and liabili- 
 ties 432 
 
 I. The lease. 
 
 1. What is ; construction ; validity. 
 
 1. OccupaUoa by servant. The occupa- 
 tion by an employe of a house belonging to his 
 employer, when connected with his service, or 
 required by the employer for the necessary or 
 better performance thereof, is that of a servant, 
 and not of a tenant, and the possession is in the 
 master. Ct. App., 1875, Kerrains v. People, 60 
 N.T. (15Siek.)221. 
 
 2. Where an employe in a mill was hired for 
 a year- at a certain sum per day with the use of 
 a liouse on the mill premises, — Held, that his 
 occupation was that of a servant. lb. 
 
 3. The existence or non-existence of an agree- 
 ment to deduct a certain sum from the wages 
 for the use of the premises, is a material but not 
 a conclusive circumstance as to the nature of 
 the holding. lb. 
 
 4. Tenancy from month to month. Pos- 
 session by a tenant, under a parol agreement 
 void by the statute of frauds, and payment of 
 rent monthly thereunder for a year, creates a 
 tenancy from month to month, which can be 
 terminated only by a month's notice, expiring 
 with the end of some month reckoning from the 
 beginning of the tenancy. Ct. App., 1872, Bots- 
 ford V. Darling, 47 N. Y. (2 Sick.) 666. 
 
 5. — from year to year. Where a lease 
 for a definite term of years, contained a clause 
 giving to the lessee the privilege of occupy- 
 ing for such further time after the expiration 
 of the term, as he should choose or elect, — Held, 
 that such lessee, under the subsequent occupancy, 
 became a tenant from year to year of the lessor, 
 and was not entitled to a renewal of the lease ; 
 and that, even if such clause could be construed 
 as giving him the right to name a definite term, 
 the election must be made in the lifetime of the 
 lessor. Ct. App., 1872, Western Trans. Co. v. 
 Lansing, 49 N. Y. (4 Sick.) 499. 
 
 6. — at ■will. A tenant holding over for a 
 brief period after a definite term, without the as- 
 sent of his landlord, does not thereby become a 
 tenant at will or by sufferance, within tlie mean- 
 ing of the statute which requires a month's no- 
 tice to terminate the tenancy ; but the landlord 
 may, without notice, maintain ejectment for tlie 
 recovery of the premises. Com. App., 1873, 
 Smith V. Liltlefield, 51 N. Y. (6 Sick.) 539. 
 
 7. Construction. If a lease is ambiguous, 
 that construction must prevail which is most 
 strongly against the lessor, because he might 
 have expressed himself more clearly. N. Y. 
 
 Supr. Ct., Sp. T., Windsor Hotel Co. v. Hawk,i^ 
 How. 257. 
 
 8. A lease for 10 years from the 1st day of 
 May 1873, which provides that if the premises 
 are not completed and ready for occupation on 
 that day, the rent shall be f 75,000 per annum for 
 one year after such completion, and for the 
 second year at an increased rate, and so on, 
 without indicating on what day the year for the 
 payment of rents will expire, — Held to limit the 
 rent to $75,000 for one year after the completion 
 of the premises. lb. 
 
 9. Appurtenances. A lease of a building 
 with the appurtenances, witli. covenant only for 
 quiet enjoyment, does not convey a right to have 
 windows opening into a vacant portion of the 
 same lot in the rear, remain unobstructed for the 
 passage of light and air, as an appurtenance. N. 
 Y. Supr. Ct., 1875, Doyle v. Lord, 39 N. Y. Supr. 
 (7 J. & Sp.) 421. 
 
 10. Neither does the fact that such vacant 
 space constitutes a yard and has upon it a privy, 
 make it pass as an appurtenance, where the les- 
 see has no right to the use of the privy, nor right 
 of access thereto. lb. 
 
 11. Neither can the lessee derive any right to 
 the unobstructed use of such windows from 
 the former occupancy, or the designed present 
 use of the building, although in both cases light 
 and air may have been essential, to its beneficial 
 use and enjoyment. lb. 
 
 12. The lessor, or those claiming under him, 
 are, therefore, at liberty to occupy such vacant 
 space with a building, although it obstructs such 
 windows. lb. 
 
 13. Duplicate writings. Where a lease is 
 made in duplicate, one paper, signed by the les- 
 sor only, being delivered to tlie lessee, and the 
 other, signed by the lessee only to the lessor, 
 both must be treated as a single instrument and 
 must have the same legal effect as if each was 
 signed by both parties at the same time. Com. 
 App., 1872, Prevot v. Lawrence, 51 N. Y. (6 Sick.) 
 219. 
 
 14. Hoisting apparatus. Under a covenant 
 in a lease of a five-story building, having an 
 open hatchway extending from the sub-cellar to 
 the top, that the lessor should put in an efficient 
 steam hoisting apparatus, if the lessees desired 
 it, and the latter should pay for the use of it 
 12 per cent, on its cost, at the usual quarter-days 
 ami keep it in repair, the presumption of law, in 
 the absence of any stipulation as to the place of 
 such apparatus, would be that the parties in- 
 tended it should be placed in such open hatch- 
 way. Sup. Ct., 1873, Ayer v. Kobbe, 45 How. 
 373 ; S. C, 36 N. Y. Supr. (4 J. & Sp.) 158 ; Aff'd, 
 S. C, 59 N. Y. (14 Sick.) 454. 
 
 15. It was therefore ti^e duty of the lessor, 
 upon proper notice, to erect such hoisting appa- 
 ratus in such hatchway, .notwithstanding it 
 might seriously obstruct the only entrance to the 
 portion of the building occupied by the tenant 
 desiring it. lb. 
 
 16. The fact that the lessee had sub-let sepa- 
 rate portions of the premises to different parties, 
 did not affect or change the rights or duties of 
 the lessor in that respect. lb. 
 
 17. Under a new agreement, entered into after 
 the tenant had procured an injunction to restrain 
 the erection of the hoisting apparatus in that 
 place, whereby it was agreed that the work 
 thereon should be suspended until the lessor 
 should provide a new entrance and stairway for 
 such tenant ready for use, and in case it was 
 completed within a " reasonable time " the lat- 
 ter should pay rent for such apparatus from and 
 
426 
 
 LANDLORD AND TENANT. 
 
 after the 23(1 of March.the period of seven months 
 during which the lessor was negotiating with 
 the tenant of the first floor for the right to put 
 in such new entrance and stairway, was not a 
 " reasonable time," and he was not entitled to 
 rent for the hoisting apparatus from the 28d of 
 March, but only from the time it was completed, 
 lb. 
 
 18. The damages sustained by the tenant in 
 consequence of the non-completion of the steam 
 hoisting apparatus and new entrance and stair- 
 way, are not matters of counterclaim or recoup- 
 ment as against the rent reserved. Monell, J., 
 dissents. lb. 
 
 19. Iietting on shares. "Where the owner 
 of a farm let a portion of it on shares, and made 
 an agreement with the tenant that he should 
 have his pay out of the crops for certain ad- 
 vances to be made by him to the tenant, and the 
 crops should remain in his possession and be 
 his until the advances were paid, and after the 
 tenant had put in seed, sold the farm, withou.t 
 reserving the rights of the latter, agreeing to 
 give possession immediately ; — Held that he was 
 estopped by his contract of sale with possession 
 to allege that he retained any interest in the 
 crops, as against a purchaser in good faith from 
 the tenant of his share of the crops. Smith, J., 
 dissents. Sup. Ct., 187i, Hadley v. Barton, 47 
 How. 481. 
 
 20. Although a contract whereby one party 
 leases his farm to the other to be worked on 
 shares, and the crops divided, also provides that 
 " all tlie profits arising from the working and 
 farming of said farm be divided equally between 
 the parties ; all losses and gains upon said farm 
 be divided equally between the said parties ; " 
 yet, it does not create a partnership, in the ordi- 
 nary acceptation of that term, where it is appa- 
 rent that such was not the intention of tlie par- 
 ties. Sup. Ct. 1874, Gregory v. Brooks, 1 Hun, 404. 
 
 21. Under such lease, it being the duty of the 
 tenant to gather and care for the crops, he is not 
 entitled to be allowed the cost thereof in excess 
 of the proceeds, in an action by the landlord 
 for his share of the proceeds of the crops. lb. 
 
 22. Where one of two houses on the farm was 
 occupied by the landlord before and during the 
 continuance of the lease, and the tenant occu- 
 pied the other, nothing being said in the lease in 
 regard to them, but both parties acting on the 
 assumption tliat each was entitled to the posses- 
 sion of the building occupied by him, the tenant 
 is not entitled to be allowed rent for those occu- 
 pied by the landlord. lb. 
 
 23. Under a lease of a farm, not containing 
 any express provision that the landlord shall 
 have title to the hay, an agreement by the ten- 
 ant " to take good c^e of the cows," and, in 
 case the hay on the farm should be insufflciei;! 
 to winter them, to pay the landlord $3 per ton 
 for hay to supply the deficiency, but, in case of 
 a surplus the landlord to take it and pay $3 per 
 ton for it, does not place the title of the hay in 
 the landlord. Sup. Ct., 1874, McCombs v. Becker, 
 3 Hun, 842. 
 
 24. Place for signs. One who leases a rear 
 office in a building, the front part of which was 
 previously leased to an insurance company, with 
 notice of a provision in the lease to such com- 
 pany, that " the one-third, at least, of the front 
 water-table, is reserved for signs for the tenants 
 of the rear offices, and such amicable arrange- 
 ment for signs on the side entrance as may be 
 agreed for," takes subject to such clause ;• and 
 as to signs on the side entrance, is. bound to en- 
 deavor to affect an amicable arrangement with 
 
 the insurance company. N. Y. Supr. Ct., 1875, 
 Knoeppel v. Kings Co. F. Ins. Co., 89 N. Y. Supr. 
 (7 J. & Sp.) 553 J Aff'g S. C.r48 How..208. 
 
 25. Privilege to make alterations. Under 
 a clause in a lease, giviug the lessee the priv- 
 ilege of making such alterations " as he may 
 think proper, provided the same do not injure 
 the premises ; " the right of alteration must be 
 restricted to such as facilitate the transaction of 
 the lessee's business, and they must not be wan- 
 ton and capricious. Ct. App., 1874, Agate v. 
 Lowenbeim, 57 N. Y. (12 Sick.) 604; Rev'g S. 
 C, 4 Daly, 262. 
 
 26. .Provision for cancellation. A pro- 
 vision in a lease for years, that, if the lessor . 
 should sell the land during the term, the lease 
 should be cancelled and at an end, and the les- 
 sor or purchaser would pay a fair and just price 
 for all permanent improvements, makes the lease 
 not merely determinable at the election of the 
 lessor, but a sale of the premises terminates it, 
 and entitles the lessee to recover the value of 
 the improvements, although he has not been dis- 
 turbed in his possession. Sup. Ct, 1875, Morton 
 V. Weir, 5 Hun, 177. 
 
 27. Running to agent. Where the general 
 agent of a railroad company took a lease of cer- 
 tain premises in the city of New York, running 
 to himself but describing him as such agent, the 
 same being under seal and executed by him in 
 his individual name, and he took possession and 
 used the premises for the business of the com- 
 pany, — Ueld, that the covenants were binding 
 upon the agent who executed the lease, and not 
 upon the company. Sup. Ct., 1874, Kiersted v. 
 Orange Sf Alexandria R. S,. Co., 1 Hun, 151. 
 
 28. Where it appears that such occupation 
 was under a special agreement by the agent that 
 his principals should ratify the lease, so as to be 
 bound by it, but they never did ratify it, — Hdd, 
 that they did not become the tenants of the les- 
 sor, and were not liable for the rent accruing 
 under the lease. lb. 
 
 29. But, the company having superseded the 
 agent after several months' occupation, and 
 afterward used and occupied the premises by its 
 new agent, as a ticket office, without any as- 
 signment of the lease, it was liable to the lessor 
 for use and occupation. lb. 
 
 80. Term. Where, on a lease of a saw-mill 
 subject to sale, it was agreed that the lessee 
 should in case of a sale, have two months' no- 
 tice to " saw out," and then, if any logs remained 
 over, should have the privilege to remain in 
 possession, at the option of the lessor, at the 
 same rent, till the logs on hand were sawed, or 
 should have the expense allowed him of remov- 
 ing them to and sa'wing them at another mill, — 
 Held, that the phrase "logs on hand" included 
 as well those bought in the regular course of 
 business, though not yet delivered, as those in 
 the mill-yard ; that for all such which neces- 
 sarily remained over, the lessee should be al- 
 lowed ; but that he was bound to use diligence 
 in " sawing out," and after notice, could not use 
 the mill for other purposes. Ct. App., 1874, 
 Crouch V. Parker, 56 N. Y. (11 Sick.) 597. 
 
 31. Validity. The business of selling lottery 
 tickets being unlawful in this State, the lease of 
 a building, made with the understanding that it 
 is to be used and occupied by the lessee as a lot- 
 tery office, is void, and the landlord cannot re- 
 cover rent under it. N. Y. C. P., 1873, Edelmuth 
 V. McGarren, 45 How. 191; S. C, 4 Daly, 467. 
 
 Use of premises for illegal purposes avoids lease, 
 Ch. 688, Laws 0/1873. 
 
LANDLORD AND TENANT. 
 
 427 
 
 2. Covenants ; forfeiture ; rights of landlord. 
 
 82. Implied covenants. A lease is a con- 
 veyance of real estate, within the meaning of the 
 statutory provision (1 Bdm.. Stats. 689, sec. 140,) 
 that no covenant shall be implied In any convey- 
 ance of real estate ; consequently, no covenant 
 against the obstructions of windows in the rear 
 of a leased store can be implied, if the lease is 
 silent on that subject. N. Y. Supr. Ct., Sp. T., 
 1874, Doyle v. Lord, 48 How. 142; AfE'd, S. C, 
 39 N. Y. Supr. (7 J. & Sp.) 421. 
 
 33. As between landlord and tenant, where 
 there is no fraud, false representation or deceit, 
 and no express warranty or covenant to repair, 
 there is no implied covenant that the demised 
 premises are suitable or fit for occupation, or 
 for the particular use which the tenant intends- 
 to make of them, or that they are in a safe con- 
 dition for use , and the principle of caveat emptor 
 applies to all contracts for the letting of prop- 
 erty, real, personal or mixed, as much as to con- 
 tracts of sale, with one or two recognized excep- 
 tions. Sup. Ct., 1870, O'Brien v. Capwell, 59 
 Barb. 497. 
 
 84. Where the landlord Is under no obligation 
 by covenant or otherwise, to repair the demised 
 premises, he is not liable to his tenant or any 
 servant of such tenant, for damages sustained 
 by reason of their being out of repair, especially 
 where their condition is as well known to the 
 tenant as to himself. lb. 
 
 36. A provision in a lease that the premises 
 shall be used for a specified business, or one not 
 more hazardous as respects fire, cannot be con- 
 strued as an implied contract or warranty that 
 they shall continue fit for that business. N. Y. 
 Supr. Ct., 1872, Johnson v. Oppenheim, 43 How. 
 433; S. C, 12 Abb. N. S. 449; 34 N. Y. Supr. 
 (2 J. & Sp.) 416. 
 
 36. Covenant for lien. A provision in a 
 lease of a farm, as follows : " It is agreed that 
 the said lessor shall have a lien, as security for 
 the payment of the rent aforesaid, on all goods, 
 implements, stock, fixtures, tools and other per- 
 sonal property which may be put on such prem- 
 ises, and such lien to be enforced, on the non- 
 payment of the rent aforesaid, by the taking and 
 sale of such property, in the same manner as in 
 cases of chattel mortgage on default thereof," does 
 not constitute a bargain and sale of such prop- 
 erty, by way of mortgage or otherwise, nor does 
 it create a lien in presenti, but is a mere agree- 
 ment to give alien in the future. Sup. Ct., 1872, 
 McCaffrey v. Wooden, 62 Barb. 310. 
 
 37. The authority to take and sell the prop- 
 erty, in case of default in payment of rent, is in 
 the nature of a license, resting in contract, and 
 not connected with any title to the property or 
 right in possession, and is revocable at the elec- 
 tion of the lessee ; and if the landlord removes 
 and sells the property after being forbidden to 
 do so by the lessee, he is liable as for the con- 
 version thereof. lb. 
 
 38. A clause in the covenant to pay rent, as 
 follows : " A lien to be given by said lessees to 
 said lessor to secure the payment thereof on all 
 furniture that shall be placed in said hotel by 
 said lessees," does not impart a present grant or 
 pledge, but is rather a covenant to create a lien 
 upon the property, by a suitable instrnment, 
 when it shall have been brought upon the prem- 
 ises ; and such a covenant equity will specifically 
 perform against the covenanters, or, in case of a 
 tortious sale of the property by a third party, it 
 will follow the proceeds and subject them to a 
 lien in the hands of the wrong doer. Ct. App., 
 
 1872, Hale v. Omaha National Bank, 49 N. Y. (4 
 Sick.) 626; Rev'g S. C, 83 N, Y. Supr. (IJ. & 
 Sp.) 40; S. C, again, 47 How. 201; 39 N. Y. 
 Supr. (7 J. & Sp.) 207. 
 
 39. Covenant against alterations. A cove- 
 nant in a lease of a building not to make " any 
 alterations tlierein witliout written consent," 
 must be construed as covering alterations upon 
 the outside of tlie building, so as to change them 
 in any respect from the condition they were in 
 when the covenant was made ; and such cove- 
 nant is broken by the erection of a wooden awn- 
 ing attached to the building and extending from 
 it over the sidewalk. N. Y. Supr. Ct, Sp. T., 
 1874, Trenor v. Jackson, 46 How. 389 ; S. C, 15 
 Abb. N. S. 115. 
 
 40. — not to lease from another. A cov- 
 enant in a lease, that the lessee will not, for one 
 month after the expiration of liis term, " nego- 
 tiate for, or accept or be interested in any lease " 
 of the premises except under the lessor, is not 
 broken by a mere, passive, wrongful holding 
 over by the former. Such holding over creates no 
 privity of estate between such lessee and the 
 party entitled to possession, and no tenancy at 
 will, because that would require the consent of 
 the latter. Ct. App., 1874, Smith v. Coe, 55 N. 
 Y. (10 Sick.) 678. 
 
 41. — not to sublet. A lease from a tenant 
 to anotlier of the demised premises, though for 
 the whole remainder of his term, which reserves 
 rent to himself at a new rate and a new time of 
 payment, stipulates for a re-entry on breach of 
 any of its covenants, and provides for a surren- 
 der to himself at the end of the term, is a sub- 
 lease, not an assignment, and constitutes a 
 breach of a covenant against underletting. Ct. 
 App., 1874, Collins v. Hasbrouck, 56 N. Y. (11 
 Sick.) 157. 
 
 42. — for penalty. A provision in a lease 
 that the premises shall not be used for any ex- 
 cept certain specified purposes, nor be underlet 
 without consent, " under penalty (which is here- 
 by mutually agreed upon) of immediate for- 
 feiture of this lease ; and the sum of $5,000 is 
 hereby fixed as the liquidated damages " for a 
 breach by the lessee, — Held, to be in the nature 
 of a penalty, or, if not, to be so grossly dispro- 
 portioned to the damages as to be void. Sup. 
 Ct., 1875, Giles v. Spauiding, 5 Hun, 458. 
 
 43. — for quiet enjoyment. A covenant 
 for quiet enjoyment in a lease is merely a cove- 
 nant against eviction, and does not extend to 
 disturbances of the enjoj^ment of the premises 
 by third persons, or to their continuance in the 
 same condition as wlien hired, where there is no 
 eviction. N. Y. Supr. Ct., 1873, Coddington v. 
 Dunham, 45 How. 40; S. C, 35 N. Y. Supr. (3 
 J. & Sp.) 412. S. P., Johnson v. Oppenheim, 43 
 How. 433 ; 12 Abb. N. S. 449 ; 34 N. Y. Supr. 
 (2 J. & Sp.) 416. 
 
 44. Where there is no express covenant to 
 repair, or to insure a supply of Croton water, a 
 failure to keep up such supply by reason of a 
 leakage of the pipes does not constitute an evic- 
 tion, lb. 
 
 45. A covenant for quiet enjoyment in a lease 
 does not render the landlord liable for expenses 
 incurred by the tenant in defending a suit, 
 brought by a third party claiming an interest in 
 the premises, which, on trial, is decided to be 
 unfounded. Sup. Ct., 1874, Butterworth v. Vol- 
 kening, 1 Hun, 717. 
 
 46. — for reneiwal. A covenant to renew a 
 lease at its expiration runs with the land and 
 binds the grantees of portions of the leased prem- 
 ises. Sup. Ct., 1874, Norton v. Snyder, 2 Hun, 82. 
 
428 
 
 LANDLORD AND TENANT. 
 
 47. Thus, where the owner of a large tract of 
 land, after leasing to another the right to quarry 
 and remove cement stone therefrom for 25 years, 
 and covenanting for himself, his heirs and as- 
 signs to renew the lease at the expiration there- 
 of, if the cement stone was not then all removed, 
 on terms to be fixed by appraisal, sold and con- 
 veyed 10 acres of the tract, excepting and re- 
 serving for the assignee of the lease " the priv- 
 ilege of quarrying and conveying off the cement 
 stone, which they hold by virtue of a certain 
 lease for the same ; " — Held, that the grantee 
 was bound by the covenant, if valid ; and the 
 right to renew the lease, so far as it related to 
 the stone on the land conveyed to him, was in 
 him or his assigns, and not in his grantor. lb. 
 
 48. Covenant to repair. The agreement 
 of a landlord to keep the demised premises in 
 repair, has reference only to their condition for 
 the purpose of their profitable use, and the pe- 
 cuniary benefit to be derived from their enjoy- 
 ment, or loss to arise from being deprived of 
 their use in such state of repair as the agree- 
 ment intended. It does not contemplate any 
 liability for destruction of life or casualties to 
 the person or property of any one, which might 
 accidentally result from an omission to strictly 
 fulfil the agreement. N. Y. C. P., 1872, Flynn v. 
 Hatton, 43 How. 333 ; S. C, 4 Daly, 552. 
 
 49. A landlord who is under contract gener- 
 ally to keep the premises in repair, cannot for a 
 breach thereof be held further liable to his ten- 
 ant, as in tort, for a wilful refusal or neglect to 
 to perform his obligation. lb. 
 
 50. A parol promise made by him, after be- 
 ing notified of the defects, to make the necessa- 
 ry repairs, adds nothing to ^his original obliga- 
 tion, unless founded on a new consideration, and 
 furnishes no ground for awarding additional 
 damages, except so far as the tenant is by sucli 
 promise delayed and limited in making them 
 primarily at his own expense. lb. 
 
 51. A landlord whose only obligation exists 
 in contract with the tenant in possession, can- 
 not be held liable to other parties, in an action 
 for a tort or negligence, for injuries arising from 
 defects in a piazza appurtenant to a tenement 
 house occurring from natural wear and tear ; 
 but a claim in their behalf can only be founded 
 on some other negligence, trespass or wilful 
 breach of a direct public or private duty to the 
 party injured. lb. 
 
 52. No covenant to repair will be implied, nor 
 will an express covenant be extended by impli- 
 cation. Accordingly wliere by a lease^-lst. The 
 landlord was to repair in case the premises were 
 damaged by fire but not to such an extent as to 
 render them untenantable. 2d, In case they 
 were rendered untenantable, the rent was to be 
 paid up to tlie time of fire, and then to cease 
 until the premises were put in repair, — Held, 
 upon the happening of the contingency provided 
 for by the second clause, that it was optional 
 with the landlord to continue the tenancy by re- 
 pairing, or to terminate the lease, and in case he 
 chose the latter, the tenant had no claim for dam- 
 ages. Witty V. Matthews, 52 N. Y. (7 Sick.) 512. 
 
 53. A covenant by a tenant to make all neces- 
 sary repairs upon the demised premises and to 
 keep the same in tenantable order at his own 
 cost, binds him to make the repairs irrespective 
 of the cause of the defect : and the fact that 
 they became untenantable through his failure 
 to repair, does not exonerate him from the pay- 
 ment of rent or authorize him to abandon tliera. 
 Ct. App., 1874, Lochrow v. Borgan, 58 N. Y. (13 
 Sick.) 635. 
 
 54. The settling of a foundation wall through 
 original defective construction, is a defect with- 
 in such covenant ; and a subsequent clause by 
 which the tenant agrees to surrender the prem- 
 ises at the end of his term in as good condition 
 as they were at the commencement, reasonable 
 use and wear and damages by the elements ex- 
 cepted, does not so qualify the former as to ex- 
 cuse such tenant from repairing. lb. 
 
 55. — to pay taxes. A covenant by a lessee 
 to pay " all taxes and assessments " upon the 
 demised premises, is not one of indemnity mere- 
 ly, but is broken when such lessee neglects to 
 pay a tax duly imposed; and the lessor may 
 maintain an action tliereon and recover the 
 amount of the tax, without liaving first paid it 
 himself. Com. App., 1872, Rector, etc. of Trini- 
 ty Church V. Higgins, 48 N. Y. (3 Sick.) 532; 
 Rev'g S. C, 4 Rob. 372. 
 
 56. The fact that neither the particular tax or 
 assessment, nor the time of payment, nor the per- 
 son or corporation to whom payable, are speci- 
 fied in the covenant, does not change the rule. lb. 
 
 67. A landlord's right of action upon the ten- 
 ant's covenant to pay taxes laid and assessed 
 upon the demised premises during tlie term, is 
 not affected by the dispossession of the tenant 
 under summary proceedings after such taxes 
 became due. N. Y. Supr. Ct., 1873, Johnson v. 
 Oppenheim, 35 N. Y. Supr. (3 J. & Sp.) 440. 
 
 58. Provision for forfeiture. A clause in 
 a lease giving the landlord a right to re-enter 
 for non-payment of rent or taxes is treated in 
 equity as a security for the payment of money, 
 and as compensation can be made to the land- 
 lord, equity will relieve against the forfeiture 
 upon suclv terms as may be just. N. Y. Supr. 
 Ct., Sp. T., 1873, Giles v. Austin.iQ How. 269. 
 
 59. Waiver of forfeiture. Where a tenant 
 of an office, witli the privilege of a closet or 
 washroom in common with other tenants, for a 
 term of five years, continued to occupy after the 
 expiration of his term without any new agree- 
 ment, and tlie water supply being cut off from 
 the closet, was supplied by his landlord, under 
 an arrangement made between and satisfactory 
 to both of them, with other water on the same 
 floor, after which he paid the rent for that year 
 without objection ; — Held, that the use of the 
 substitute and payment of rent precluded him 
 from claiming an eviction, and, even if this were 
 not so, he became, by holding over, a tenant 
 from year to year, and the eviction could have 
 no application to subsequent years, but he would 
 be liable for tlie rent. Ct. App., 1872, Austin v. 
 Strong, 47 N. Y. (2 Sick.) 679. 
 
 60. The receipt by a landlord, of rent becom- 
 ing due and payable after an act of forfeiture, 
 and after notice to him of that act, amounts to 
 a waiver of the forfeiture. Ct. App., 1874, Col- 
 lins y.Hasbrouck, 56 N. Y. (11 Sick.) 157. S. P., 
 Ireland v. Nichols, 2 Sweeny, 289 ; Aff'd, 46 N. 
 Y. (1 Sick.) 413. . 
 
 61. Where a lease was conditioned for a 
 forfeiture in case of a subletting without the 
 written consent of tlie landlord, and he indorsed 
 his consent upon a sublease for a definite terra, 
 ignorant that, by its terms, the subtenant had 
 the option of continuing the same for a further 
 term upon giving notice, — Held, that the forfeit- 
 ure was incurred, not when the subtenant should 
 take possession unier the extended term, but at 
 the time of the execution of the lease, and that 
 the acceptance by the landlord of rent accruing 
 due after knowledge of the clause providing for 
 such extended term, though not beyond the 
 authorized term, was a waiver. lb. 
 
LANDLORD AND TENANT. 
 
 429 
 
 62. A condition against the assignment of a 
 lease, once waived by the acceptance of rent 
 accruing after an assignment, is dispensed witli 
 forever, and the assignee can transfer to an- 
 other a valid title to the lease. Ct. App., 1874, 
 Murray v. Harway, 56 N. Y. (11 Sick.) 337. 
 
 63. Landlord's right to repair. Under a 
 provision in a lease that the landlord may at 
 reasonable hours in the daytime, enter the prem- 
 ises to examine or to make such repairs and 
 alterations therein as shall be necessary for the 
 preservation thereof, he has a clear right, in case 
 injury or destruction to the building or premises 
 is threatened by an excavation of the adjoining 
 property, to enter and shore up and strengthen 
 the same by running large timbers through the 
 basement to support the floor of the store above. 
 N. Y. Supr. Ct., 1874, White v. Mealia, 37 N. Y. 
 Supr. (5 J. & Sp.) 72. 
 
 64. In such a case the landlord is not liable to 
 his tenant for interrupting his business or other- 
 wise unless it be shown that the work was done 
 in such a wanton, unskilful or negligent manner 
 as to subject the tenant unnecessarily to loss and 
 damage. lb. 
 
 65. In the absence of express contract, a 
 landlord is under no obligation to protect his 
 tenant from the consequences of the lawful 
 acts of the owners of adjoining premises endan- 
 gering the stability of the demised premises. lb. 
 
 II. Assignment op lease ; rights 'and lia- 
 bilities OF ASSIGNEE. 
 
 66. Assignment, what passes by. Where 
 after the leasing of a three-story building to be 
 erected by the lessor, the latter agreed orally, 
 for an additional rent to be paid by the lessees, to 
 add a fourth story, which he did, — Held, that 
 such additional story became a part, of the 
 demised premises and passed by an assignment 
 of the lease, but did not carry with it any liabil- 
 ity upon the parol promise to pay. N. Y. Supr. 
 Ct., 1869, Coit V. Braunsdorjf, 2 Sweeny, 74. 
 
 67. Effect of. An assignment of a lease, 
 made for the purpose of defrauding the creditors 
 of the assignor, though void as to such creditors 
 Is sufficient to work a forfeiture of the lease 
 under a covenant not to sell or assign. Ct. App., 
 1873, Moore v. Pitts, 53 N. Y. (8 Sick.) 85. 
 
 68. By tenant at will. A tenancy at will 
 can be created only by the assent of the owner ; 
 and a mere assignment of the rights of a tenant 
 at will, without subsequent recognition by the 
 owner, will not create such a tenancy in the 
 assignee. Ct. App., 1871, Beckhow v. Schanc/c, 
 43 N. Y. (4 Hand,) 448. 
 
 69. Consent to substitution. An agent to 
 let premises and collect the rents, has not, as 
 such, authority to consent to the substitution of 
 a new tenant, and the discharge of the original 
 lessee, after the latter has assigned his lease. 
 Sup. Ct., 1873, Wilson v. Lester, 64 Barb. 431. 
 
 70. A lease under seal, having more than one 
 year to run, cannot be determined by a mere 
 parol agreement to terminate it and accept an- 
 other person as tenant, without an actual sur- 
 render, lb. 
 
 71. The mere receipt of rent from the assignee 
 will not have that effect, in the absence of proof 
 of the surrender of the premises, and an accept- 
 ance of such assignee as tenant. lb. 
 
 72. Liability of assignee for rent. An 
 assignee of a lease is only liable for rents accru- 
 ing or covenants broken while he is assignee. 
 Sup. Ct., 1871, Wright v. Kelley, 4 Lans, 57. S. 
 P., Durandy. Curtis, 57 N. Y. (12 Sick.) 7. 
 
 73. A third party who buys out the interest 
 of one of two partners carrying on business in 
 leased premises and takes his place as a partner 
 with the other, continuing the business in the 
 same place without taking an assignment of tlie 
 lease, does not become a lessee of the premises 
 so as to be liable for the rent accruing during the 
 whole term, by merely signing his name to the 
 lease below the signatures of the original parties, 
 under a verbal agreement by the landlord that if 
 lie will so sign it he ma}' continue to occupy the 
 premises. lb. 
 
 74. Nor, if lie did thereby become lessee, 
 would he be liable for rent accruing after he had 
 assigned the lease, and it had been so subscribed 
 by subsequent assignees. lb. 
 
 76. If persons so subscribing the original lease 
 thereby became parties to it as an existing lease, 
 then such signing operated as an alteration 
 thereof and discharged all prior parties not con- 
 senting, lb. 
 
 76. Such first purchaser of an interest in the 
 partnership not being liable for rent accruing 
 after he had parted with his interest and left the 
 premises, one to whom he made an assignment 
 of the lease containing a clause as follows : " He 
 (the assignee) to pay the rent, &c., as herein 
 provided as fully as I am bound to pay the 
 same," cannot be lield liable for rent accruing 
 under the lease after he has assigned his interest 
 in it and given possession to others. lb. 
 
 77. The assignee of the remainder of a term, 
 under a contract to transfer a lease free from all 
 incumbrance without any express provision as 
 to rent to become due for the half year then near- 
 ly expired, assumes only the rent to accrue from 
 the time of the transfer ; and if he is compelled 
 to pay the whole rent so becoming due, he may 
 recover back a proportionate part of it from his 
 vendor. N. Y. Marine Ct., 1872, S«H v. Stevenson, 
 13 Abb. N. S. 196. 
 
 III. Emblements ; fixtures. 
 
 78. Who entitled to emblements. A 
 
 purchaser of a farm, entering upon it under a 
 verbal contract with the vendor that he may 
 occupy and work it until the latter is ready to 
 convey, becomes a tenant at will of the vendor, 
 and in ease he is ejected by the latter without 
 default on his own part, is entitled to emblements. 
 Allen and Gkover, JJ., dissent. Ct. App., 1872, 
 Harris v. Frink, 49 N. Y. (4 Sick.) 24 ; Rev'g S. 
 C, 2 Lans. 35. 
 
 79. Crops sown by a tenant on leased premises, 
 which cannot mature until after the termination 
 of his lease, then become the property of the 
 landlord, and the tenant has no right to harvest 
 them, and cannot recover their value from the 
 landlord. Sup. Ct., 1871, Clarke v. Bonnie, 6 
 Lans. 210. 
 
 80. Permission to sow the crop, given by one 
 acting as agent for the landlord to receive his 
 portion of the previous crop, or even notice to 
 the landlord of the tenant's intention to sow it, 
 will not give the tenant a right to the matured 
 grain. lb. 
 
 81. Fixtures, right to remove. Where a 
 tenant, having the right to remove fixtures, con- 
 tinues in possession under a new lease containing 
 no reference to such fixtures or reservation of 
 his right of removal, such right is determined, 
 and he is in the same situation as if the land- 
 lord, being seized of the land with the fixtures, 
 had demised both to him. Ct. App., 1871, 
 Loughran v. Ross, 45 N. Y. (6 Hand,) 792. S. P. 
 AbeU V. Williams, 3 Daly, 17. 
 
430 
 
 LANDLORD AND TENANT. 
 
 82. In such case, where the lessor had the 
 option, under the first lease, of purchasing the 
 fixtures, it will be presumed from the tenant's 
 acceptance of the second lease without the right 
 of removal, that his landlord exercised his elec- 
 tion, lb. 
 
 IV. Tbemination. 
 
 83. Notice to terminate lease. An 
 under-tenant for the full term of the original 
 lease is entitled to the benefit of a provision in 
 such lease for two months' notice to terminate 
 it, and he cannot be deprived thereof or his 
 lease be annulled by a voluntary surrender of the 
 term to his lessor by the lessee from whom he 
 hired. N. Y. Supr. Ct., 1874, Eten v.' Luyster, 37 
 N. Y. Supr. (5 J, & Sp.) 486. 
 
 84. Upon tlie reversal on appeal of a judgment 
 against him in summary proceedings, such under- 
 tenant can maintain an action against the land- 
 lord to recover the damages sustained by reason 
 thereof. lb. 
 
 85. A tenancy from year to year can be 
 terminated only by notice ending with the year ; 
 and a tenancy at will, by 30 days' written notice. 
 A verbal notice is insufficient. N. Y. Supr. Ct., 
 1869, Nowlan v. Trevor, 2 Sweeny, 67. 
 
 86. A renting by the month, or from month 
 to month, to be continued, must be renewed 
 monthly. It is not a tenancy at will, and a 
 month's notice to c[uit is not necessary to termi- 
 nate it. Sup. Ct., 1873, People ex rel. Aldhouse 
 V. Goekt, 14 Abb. N. S. 130; S. C. 64 Barb. 
 476. 
 
 87. Abandonment. A tenant who hires 
 a house for a year from the first day of , May, 
 and agrees to pay the rent monthly in advance, 
 is liable for the rent of Febuary it he abandons 
 the premises on the first day of tliat montli for 
 the alleged cause that they are untenantable, 
 and gives up tlie keys to the landlord. .N. Y. 
 C. P., 1874, Mackellar v. Sigler, 47 How. 20. 
 
 88. If the landlord enters the premises after 
 such abandonment for the purpose of making 
 repairs, lie thereby accepts the surrender and 
 discharges the tenant from further liability for 
 rent. lb. 
 
 89. In the absence of any reservation in the 
 lease of a right to relet the premises, in case of 
 abandonment, on the tenant's account, he cannot 
 do so, but such a re-letting will determine the 
 previous tenancy and discharge the tenant. lb. 
 
 90. Surrender. Under a lease which ex- 
 pressly provides that the " hiring and letting is 
 for one month only," and will expire on a day 
 certain, at noon, neither party is bound to give 
 any notice to'the other, in order to terminate 
 the tenancy at the" expiration of any month ; 
 nor is it necessary for the tenant to make any 
 formal surrender, but a removal of all his prop- 
 erty considered of sufficient value, and restora- 
 tion of the keys to the landlord is sufficient. 
 Sup. Ct., 1875, Gibbons v. Dayton^ 4 Hun, 461. 
 
 91. Where a tenant entered under a sealed 
 lease for three years, with the privilege of 
 three years more, and occupied for 15 months, 
 and then left, and a person then in possession, 
 with the knowledge of the landlord, continued 
 in possession four months after the expiration 
 of the three years, and then left delivering the 
 key to the landlord, who accepted it and sub- 
 sequently rented a portion of the premises ; — 
 Held, that the holding over of such person did 
 not constitute an election on the part of the de- 
 fendant to extend the term, but the acceptance 
 of the key and re-renting the premises was a 
 
 surrender and termination of the lease, at least 
 from the time of the re-renting. Sup. Ct., 1875, 
 Moore v. McCarthy, 4 Hun, 261. 
 
 92. Surrender after action. In an action 
 commenced on the 6th of November, for one 
 quarter's rent, which by tlie terms of the lease, 
 became due in advance on the first of the month, 
 the defendant cannot set up or prove a surrender 
 of the premises on the 30th of November and 
 acceptance thereof by the plaintiff, as a defense, 
 no such defense existing at the commencement 
 of the suit. Sup. Ct., 1872, Learned v. Ryder, 6 
 Lans. 639 ; S. C, 61 Barb. 552. 
 
 93. Sub-lessee not affected by. A 
 lessee whose lease contains no prohibition 
 against sub-letting has the right to sub-let the 
 demised premises or any part thereof, and the 
 sub-lessee will acquire a valid term subject to 
 any provision of tlie original lease and of his own 
 lease as to the termination thereof by breach of 
 condition or upon notice and payment ; but a 
 voluntary surrender of the lease by such lessee, 
 cannot aSect the rights of the sub-lessee. Ct. 
 App., 1875, Eten v. Luyster, 60 N. Y. (15 Sick.) 
 262 ; AfE'g S. C, 37 N. Y. Supr. (5 J. & Sp.) 486. 
 
 94. By such a surrender the original lessor 
 would become the immediate landlord of the 
 sub-lessee, with only the rights previously pos- 
 sessed by his lessee, and would have no right 
 to forcibly dispossess such sub-lessee before the 
 expiration of his term, or the termination thereof 
 according to its provisions. lb. 
 
 V. Actions fob rent ok use and occupatioit ; 
 
 DEFENSES. 
 
 95. Action by purchaser on foreclosure. 
 
 A purchaser at a foreclosure sale cannot main- 
 tain an action against the tenants of the mort- 
 gaged premises, to recover the rent accruing 
 between the date of the sale and the date of the 
 execution and delivery to him of the deed. 
 Ct. App., 1871, Cheney v. Woodruff, 45 N. Y. (6 
 Hand,) 98. 
 
 96. Action against administrator. The 
 administrators of one dying seized of a lease- 
 liold estate are liable personally for the rent 
 accruing subsequent to the death of their intes- 
 tate to the amount of the rents and profits re- 
 ceived by them from the premises. That these 
 are not sufficient to pay the rent is strictly 
 matter of defense, as the law prima facie sup- 
 poses them sufficient, and makes the adminis- 
 trators liable. Com. App., 1872, Miller v. Knox, 
 48N. Y. (3 Sick.) 232. 
 
 97. Action for taxes paid. Where, by 
 the terms of a lease the tenant covenants to 
 pay the taxes and water-rates, they are part of 
 the rent, and if the tenant omits to pay them 
 after being notified and requested to do so, the 
 lessor, being personally liable and his property 
 liable tlierefor, may pay them and sue for and 
 recover the same from the tenant. Sup. Ct, 
 1872, Gallup V. Albany Railway, 7 Lans. 471. 
 
 98. Action for liSe and occupation. It 
 seems, that where a landlord elects to terminate 
 a lease for non-payment of rent, and commences 
 summary proceedings to recover possession, he 
 is not entitled to recover for use and occupation 
 from the time he terminated the lease until he 
 obtained possession. N. Y. C. P., 1872, Powers 
 V. Witty, 42 How. 862 ; S. C, 4 Daly, 652. 
 
 "9. Defense ; breach of covenant. Under 
 a lease of a store for a specified yearly rent, the 
 landlord agreeing " in consideration of the 
 covenants and agreements contained in the 
 lease, to board " the tenant at his house during 
 
LANDLORD AND TENANT. 
 
 431 
 
 the term, the landlord is entitled to recover the 
 rent agreed upon, notwitlistanding his breach of 
 the agreement to board the tenant. Sup. Ct., 
 1874, Shallies v. Wilcox, 2 Hun, 419. 
 
 100. The tenant in such a case, has the right 
 ofrecoiipment and counterclaim, to the extent 
 of the value of his board from the time the land- 
 lord refused to board him, and it makes no differ- 
 ence that he got drunk, or otherwise miscon- 
 ducted himself at plaintiff's house. lb. 
 
 101. Consequential damage to the tenant 
 in the use of the demised premises, resulting from 
 acts of tlie lessor, not done on the premises nor 
 depriving the tenant of the possession of any part 
 thereof, is no defense to an action for rent. Sup. 
 Ct., 1872, Gallup V. Albany Railway, 7 Lans. 471. 
 
 102. A horse railway company which has 
 leased premires located on a public street, upon 
 wliich it has, by permission of the city and sub- 
 ject to the latter's right to repair, alter, &c., 
 placed its tracks communicating with such prem- 
 ises, cannot defend against an action for rent 
 on the ground tliat the grade of the street had 
 been so changed, under a city ordinance as to 
 render communication with the leased premises 
 impracticable, materially impairing the value of 
 the tenant's occupancy, even though the lessor 
 himself did the grading under an option given 
 by the ordinance to the owners. lb. 
 
 103. The lessor in doing such grading is the 
 agent of the city, and his act not being wilful or a 
 trespass, the tenant cannot counterclaim or 
 recoup his damages in an action for rent. lb. 
 
 104. Whether or not a covenant for quiet 
 enjoyment can, since the Revised Statutes, be 
 implied in a lease, it will not be implied to ex- 
 tend to the enjoyment of anything beyond the 
 limits of the demised premises ; nor, as an im- 
 plication of law to override a prior implication 
 of law to the contrary. lb. 
 
 105. Counterclaim. Although a tenant can- 
 not set up a mere trespass or tort, not amount- 
 ing to an eviction, as a defense to an action for 
 rent, yet lie may set up, as a counterclaim in such 
 action, damages sustained by reason of the non- 
 performance by the landlord of his agreement, 
 in consideration of being permitted to enter and 
 repair the roof, to do the work with diligence, 
 care and caution. Sup. Ct., 1875, Walker v. 
 Shoemaker, 4 Hun, 579. 
 
 106. If a landlord who has agreed to keep the 
 demised premises in repair neglects to do so, 
 the tenant may either counterclaim the damages 
 sustained by him in consequence of such neglect, 
 or the expense of repairs made by him, or such 
 damages and the expense of partial repairs, in an 
 action for the rent. Sup. Ct., 1873, Cook v. 
 iioule, 45 How. 340 ; Aff'd, S. C, 56 N. Y. (11 
 Sick.) 420. 
 
 107. The ten.int has no right to take the 
 hazard, where he knows that his property, if 
 left on the premises, will be exposed to injury 
 for want of such repair. It seems, that if the 
 requisite repairs are trifling and the damages 
 likely to be large, he should make the repairs 
 and charge them to the landlord. S. C, 56 N. 
 Y. (11 Sick.) 420. 
 
 108. Eviction. The fact that a building has 
 been erected on an adjoining lot which shuts up 
 the windows on one side of the leased premises, 
 is not an eviction, actual or constructive, in the 
 absence of any covenant against it in the lease, 
 wliich will relieve the tenant from the payment 
 of tlie stipulated rent or any part thereof. N. Y. 
 Supr. Ct., 1872, Johnson v. Oppenheim, 43 How. 
 433 ; S. C, 12 Abb N. S. 449; 34 N. Y. Supr. 
 (2 J. & Sp.) 416. I 
 
 109. Eviction and damage to goods by water 
 and exposure, caused by acts of the landlord in 
 making certain changes in the premises, do not 
 constitute a defense to an action for rent, where 
 the lease provides that such changes may be 
 made, and no negligence in making them Is 
 shown. Sup. Ct., 1875, Matthews v. Meyberg, 4 
 Hun, 78. 
 
 110. Where a purchaser of land under con- 
 tract for a conveyance, after leasing to another, 
 makes an inexcusable default, and the vendor 
 sells to a third party, and in good faith puts such 
 tenant out of possession, such eviction dis- 
 charges the tenant and his surety. Sup. Ct., 1875, 
 Lawrence v. Mead, 5 Hun, 179. 
 
 111. It is not necessary, in order to a complete 
 eviction, that the eviotor should remove the 
 tenant beyond the highway, although that is 
 part of the farm included in the lease ; nor is it 
 necessary that the tenant should remain off the 
 premises, but he may take a lease from the true 
 owner. lb. 
 
 112. Where a subtenant leaves the demised 
 premises, in pursuance of a judgment in eject- 
 ment obtained against his lessor for violation of 
 a covenant contained in liis lease, delivering the 
 key to the latter, that is an eviction which will 
 discharge liim from the further payment of rent. 
 Ct. App., 1871, Home Life Insurance Co. v. jSAer- 
 man, 46 N. Y. (1 Sick.) 370. 
 
 113. Although the lease of such subtenant 
 contained the same convenant, and the alleged 
 violation was his own act, that will not make 
 him liable for rent. The remedy of his lessor, 
 in such case, is for breach of covenant. lb. 
 
 114. Land taken for street. The act of 
 1813 (ch. 86, sec. 177, et seq.), declaring void all 
 leases of lands taken for public streets in the city 
 of New York after tlie confirmation of the com- 
 missioners' report and vesting the fee of such 
 lands in the city, is so far modified by the act 
 of 1818 (Laws of 1818, p. 196), authorizing the 
 city to suspend the opening of the streets and 
 the payment of assessments, that the owner re- 
 tains tlie right to occupy and use the premises 
 until the corporation takes actual possession, or 
 the period of suspension expires, and may re- 
 cover rent during that period. Ct. App., 1871, 
 Detmold v. Drake, 46 N. Y. (1 Sick.) 318. 
 
 115. And a tenant agreeing to pay rent for 
 such lands until eviction will be held liable 
 therefor. Ct. App., 1871, Phyfe v. Eimer, 45 N. 
 Y. (6 Hand,) 102. 
 
 116. There being no other compensation for 
 the delay in payment than the use of the prem- 
 ises, only in this way can the constitutionality 
 of the act of 1818 be sustained ; and, if that be 
 not just compensation, yet the owner may waive 
 the constitutional objection and claim his rent. 
 lb. 
 
 117. Negligence. A landlord who con- 
 structs the cellar stairs in his tenement house 
 with proper care, and in such a manner that 
 when used with reasonable care and prudence 
 they will he safe, cannot be held responsible to 
 one who received injuries through falling down 
 suchs tairs wlien the trap door was open, unless 
 it is shown that he himself negligently left it 
 open. N. Y. Supr. Ct., 1873, Kaisei- v. Hirth, 46 
 How. 161. 
 
 118. Obstruction of light. In an action 
 to recover rent for the lower stories of a build- 
 ing, the tenant may set up as a defense or 
 counterclaim the obstruction of a skylight, 
 constructed for the purpose of lighting the de- 
 mised premises, and an appurtenant thereto, by 
 a tenant of the rooms above, under a lease giving 
 
432 
 
 LANDLORD AND TENANT. 
 
 him the right so to do, and that the landlord had 
 induced him to pay rent by assuring liim tliat 
 such obstruction should be removed. Payment 
 under such circumstances would not prevent 
 him from setting up that defense. Sup. Ct., 
 1875, Morgan v. Smith, 5 Hun, 220. 
 
 119. Fremises untenantable. The relief 
 from the obligation to pay rent given by ch. 
 345, Laws of 1860, to tenants, in cases where the 
 demised premises are destroyed or rendered 
 untenantable, is not absolute but is optional 
 with the tenant ; and In order to avail himself 
 of it, such tenant is bound to surrender posses- 
 sion of the premises. He cannot have the bene- 
 fit of the law and at the same time repudiate its 
 obligations. Ct. App., 1873, Johnson v. Oppen- 
 heim, 55 N. Y. (10 Sick.) 280 ; Aff'g S. C, 43 
 How. 433 ; 12 Abb. N. S. 449 ; 34 N. Y. Supr. 
 (2 J. & Sp.) 416. 
 
 120. A partial surrender will not answer the 
 requirements of the statute, although the land- 
 lord does not object on that ground at the time, 
 but refuses to accept any surrender and denies 
 the right of the tenant to make any. lb. 
 
 121. The tenant cannot relieve himself from 
 liability through the act of a third party done 
 with his consent. lb. 
 
 122. Accordingly, where the injury to the 
 demised premises was occasioned by excavations 
 upon an adjoining lot, and the tenant had refus- 
 ed permission to the owner of such lot to enter 
 upon his premises for the purpose of securing 
 the same ; — Held, that, as the common-law rights 
 of such owner to excavate at his pleasure had 
 been modified by ch. 6, Laws of 1855, only so 
 far as to require him to protect adjoining build- 
 ings, when afforded the necessary license to 
 enter, the tenant must be held to have consented 
 to the injury, and was not therefore absolved 
 from hjs obligation to pay rent. lb. 
 
 123. Even if the acts necessary to protect 
 the demised premises, would slightly incon- 
 venience the tenant or interfere with his busi- 
 ness, that would not justify his refusal of the 
 license to enter. lb. 
 
 124. The mere building upon or other im- 
 provement of an adjoining lot, by which demised 
 premises are rendered less commodious of oc- 
 cupation or less suitable to the uses of the 
 tenant, does not affect his liability for rent, or 
 authorize him to terminate the lease and aban- 
 don the premises. lb. 
 
 125. The eviction of the tenant from the 
 demised premises, by summary proceedings 
 instituted by the landlord for non-payment of 
 rent, does not discharge him from the payment 
 of rent already accrued and due ; but the lease 
 is annulled only as to rights and liabilities in 
 the future. lb. 
 
 126. That statute has reference to a sudden 
 and total destruction by the elements, acting 
 with unusual power, or by human agency, or to 
 a case of injury short of total destruction, oc- 
 casioned in the same way, and not to the grad- 
 ual deterioration and decay produced by the 
 ordinary action of the elements. Com. App., 
 1873, Suydam v. Jackson, 54 N. Y. (9 Sick.) 450. 
 
 sl27. It was never intended to affect theccm- 
 mon-law rule requiring a tenant to make or- 
 dinary repairs. lb. 
 
 128. The statute does not apply to a case 
 where the tenant hires the premises with a full 
 knowledge that they are to be rendered un- 
 tenantable, and with a view to occupancy in that 
 condition. Sup. Ct., 1873, Alsheimer v. Krohn, 
 45 How. 127. Or to a case where the premises 
 did not become untenantable until after the 
 
 tenant moved out. N. Y. C. P., 1870, Murray v. 
 Walter, 42 How. 64. 
 
 129. Thus, wliere blasting was going on upon 
 the lot adjoining the leased premises, when the 
 defendant took possession, and it did not appear 
 whether the premises were in anywise material- 
 ly-injured during the time the defendant oc- 
 cupied them, or not until afterward, that statute 
 does not apply, even though the landlord may 
 have told the tenant that there would be no 
 more blasting after he should take possession. lb. 
 
 130. Such a promise as to the continuance 
 of the blasting would amount only to a simple 
 contract or covenant, for a breach of which the 
 landlord would be liable in damages, but is no 
 defense to an action for the rent. lb. 
 
 131. The fact that the walls of a leased dwel- 
 ling are unusually damp, and Aat in conse- 
 quence thereof the family of the tenant become 
 and remain sick, does not render such dwelling 
 untenantable and unfit for occupation, within the 
 meaning of ch. 345, Laws of 1860, so as to give 
 a tenant who, by his lease, has agreed fo make 
 all necessary repairs, a right to surrender there- 
 upon and refuse to pay rent. Sup. Ct., 1875, 
 Truesdell v. Booth, 4 Hun, 100. 
 
 132. Under a lease containing a condition 
 that, in case the demised premises are so dam- 
 aged by fire as to be untenantable, the rent shall 
 cease until the same shall be put in good repair, 
 although such condition applies to the building 
 as an entirety, yet, it is not necessary that the 
 tenants should abandon the premises in order to 
 entitle them to a suspension of the rent, and the 
 continued occupation of some portions is not 
 inconsistent with their being untenantable. N. 
 Y. Supr. Ct., 1872, Kip v. Merwin, 34 N. Y. Supr. 
 (2 J. & Sp.) 531; Aff'd, S. C, 62 N. Y. (7 Sick.) 
 542. 
 
 133. The term "untenantable" means not 
 fit for the use of an occupant, — not in suitable 
 repair or condition for a tenant. lb. 
 
 134. It is no defense to an action for rent, 
 either that the premises were unfit for oc- 
 cupancy, or had become out of repair after the 
 commencement of the term. N. Y. Supr. Ct., 
 1869, Davis v. Banks, 2 Sweeny, 185. 
 
 135. Where the landlord is bound by cove- 
 nant to repair, the tenant may recoup his dam- 
 ages for a breach ; but a verbal promise, made 
 after the execution of the lease, without further 
 consideration, will not avail him. lb. 
 
 YI. MlSCBLLANEOtlS KIOHTS AND LIABILITIES. 
 
 136. Alterations by tenant. A tenant has 
 no right, except by the express permission of 
 his landlord, to make alterations in the demised 
 premises. Com. App., 1874, Agate v. Lowenbeim, 
 57 N. Y. (12 Sick.) 604; Rev'g S. C, 4 Daly, 
 262. 
 
 137. Disputing title. The rule which pre- 
 cludes a tenant, or any one entering under him, 
 though through a conveyance in fee, from ac- 
 quiring a title hostile to that of the landlord, ap- 
 plies only where the conventional relation of 
 landlord and tenant exists, and some rent or re- 
 turn is, in fact, reserved in the former, and not 
 where the relation arises by mere operation of 
 law. Accordingly, — Held, that where one hold- 
 ing under an assessment lease, conveyed the 
 land in fee, his grantee entering under such 
 conveyance could, by occupying for a sufficient 
 time after the end of the term, acquire a title 
 by adverse possession as against the true owner. 
 Ct. App., 1873, Sands v. Eitghes, 53 N. Y. (8 
 Sick.) 286: 
 
LANDLORD AND TENANT. 
 
 433 
 
 138. One who enters into possession of land 
 as a tenant cannot, -while that possession con- 
 tinues, dispute the title of his landlord, nor can 
 his assignee dispute such title. Sup. Ct., 1872, 
 Tompkins t. Snow, 63 Barb. 526. 
 
 139. A tenant may acquire title adverse to 
 his landlord by a purchase and deed, under an 
 assessment- sale, inasmuch as that originates a 
 new title which supersedes the previous title of 
 the landlord. Sup. Ct., 1874, Silton v. Bender, 2 
 Hun, 1. 
 
 140. Election of remedy. In case of the 
 landlord's breach of his covenant to repair, the 
 tenant has the option to make the repairs, be- 
 ing judicious and reasonable in his expendi- 
 tures, and recover the expenses from his land- 
 lord, or to omit making them, and sue the land- 
 lord for damages. N. Y. Supr. Ct., 1875, Hexter 
 V. Knox, 39 N. Y, Supr. (7 J. & Sp.) 109. 
 
 141. Entry to remove tenant. Where a 
 tenant is lawfully in possession of demised 
 premises, the landlord is liable in trespass for 
 removing him otherwise than by process of law. 
 Whether the latter would have that right in 
 case the- tenant was holding over, query? N. Y. 
 Supr. Ct., 1869, Nowlan v. Trevor, 2 Sweeny, 67. 
 
 142. Landlord's liability. Boiler explo- 
 sion. The owner of a dwelling is not liable to 
 a sub-tenant of his lessee for injuries received 
 in consequence of the explosion of a kitchen 
 boiler, put in by him for the use of his tenants, 
 provided it was constructed of suitable mate- 
 rials, and with due care and skill. Brooklyn 
 City Ct., Sp. T., 1872, Jaffe v. Harleau, 14 Abb. 
 N. S. 263 ; AfE'd, S. C, 66 N. Y. (11 Sick.) 398. 
 
 143. TTntenantable condition. In the ab- 
 sence of fraud or agreement to that effect, the 
 lessor is not liable to the lessee or others law- 
 fully on the premises for their condition, or that 
 they are tenantable and may be safely and con- 
 veniently used for the purposes for which they 
 were apparently intended. S. C, 56 N. Y. (11 
 Sick.) 398. 
 
 144. E-oiotion. The refusal of a landlord to 
 deliver possession to his tenant of a portion of 
 the demised premises, amounts to an eviction, 
 and will justify the tenant in removing and re- 
 lieve him from the payment of rent ; and the 
 right of the tenant to damages for the eviction 
 will not be affected by his having demanded 
 rent of his landlord, which the latter refused to 
 pay, for the portion of the premises of which 
 possession was not given him. N. Y. C. P., 1871, 
 Dmcker v. Simon, 4 Daly, 53. 
 
 145. Infected premises. A landlord who, 
 knowing that his premises are infected with a 
 contagious disease, lets them to a tenant with- 
 out informing of that fact, is liable to such ten- 
 ant for the damages sustained in case the dis- 
 ease is communicated thereby. Ct. App., 1876, 
 Cesar v. Karutz, 60 N. Y. (16 Sick.) 229. 
 
 146. Want of repair. A tenant of lower 
 rooms can maintain an action against his land- 
 lord, who occupies upper rooms in the same 
 building, for damages to his property through 
 leakage of injurious substances from the upper 
 to the lower rooms, caused by the negligence of 
 the landlord and want of repair, notwithstan4- 
 ing the absence of any covenant on his part to 
 keep in repair. N. Y. Supr. Ct., 1873, Stapen- 
 horst v. American Manuf. Co., 46 How. 510; S. 
 C, 15 Abb. N. S. 365; 36 N. Y. Supr. (4 J. & 
 Sp.) 392. 
 
 147. If premises are in good repair when de- 
 mised, but afterward become ruinous and dan- 
 gerous, the landlord is not responsible therefor, 
 either to the occupant or to the public ; unless 
 
 28 
 
 he has expressly agreed to repair, or has re- 
 newed the lease after the need of repair has 
 shown itself. Ct. App., 1874, Clancy, v. Byrne, 56 
 N. Y. (U Sick.) 129; Rev'g S.C, 65 Barb. 344. 
 
 148. The same rule applies to a lessee, who 
 has sub-let to another who is m actual posses- 
 sion ; and he cannot be held liable for an injury 
 to the property of a person lawfully upon the 
 premises tlierewith, resulting from a neglect to 
 keep them in repair ; even though by his cove- 
 nant with his landlord, he is bound to make all 
 ordinary repairs. That covenant runs to the 
 landlord, and no one can maintain an action 
 thereon but one who is a party or privy to it 
 lb. 
 
 149. Tenant's rights ; a-ward for build- 
 ings taken for public use. A lease which 
 requires the lessee to pay all taxes and assess- 
 ments, and gives him the right to remove "all 
 buildings, &c., that he may have erected upon 
 said premises, — on condition that he shall have 
 kept and performed all the covenants, agree- 
 ments and conditions of this lease, and also that 
 all such removals — shall be made during the 
 month next preceding the termination thereof," 
 gives the lessee the right to remove such build- 
 ings until the termination of the lease by ef- 
 fluxion of time, provided he performs the cove- 
 nants at some time before that right expires ; 
 and if the buildings and land are taken for pub- 
 lic use by right of eminent domain, before the 
 expiration of the lease, the award of damages 
 for the buildings taken is substituted in their 
 place, and belongs to the lessee. K Y. Supr. 
 Ct., 1873, MulUr v. Earle, 36 N. Y. Supr. (3 J. 
 & Sp.) 461. 
 
 150. The fact that there were taxes and assess- 
 ments remaining unpaid at the time the prem- 
 ises were so taken would not affect his right to 
 the award, but they could be deducted from the 
 amount thereof ; and if such award had been 
 paid over to the landlord, the lessee could re- 
 cover from him the amount awarded for the 
 buildings, less such taxes and assessments. lb. 
 
 151. Surplus on foreclosure. A lessee 
 holding under a lease containing covenants for 
 quiet enjoyment, is entitled, on foreclosure of a 
 prior mortgage and sale thereunder, to a share 
 of the surplus remaining after payment of the 
 mortgage debt, equal in amount to the value of 
 his term, less the rents reserved in his lease. 
 Ct. App., 1871, Clarkson v. Skidmore, 46 N. Y. 
 (1 Sick.) 297 ; Aff'g on this point, S. C, 2 Lans. 
 238. 
 
 152. Though a party to the foreclosure, the 
 lessee, having an interest only to protect his 
 own claim, is not concluded as to the value of 
 the fee by the amount the premises bring at the 
 sale. lb. 
 
 163. The share of such lessee cannot be limit- 
 ed to any certain percentage upon the value of 
 the fee ; but the value of his term and its excess 
 over the rents reserved should be ascertained 
 by competent proof. lb. 
 
 164. A lessee, under a lease containing cove- 
 nants for quiet enjoyment " without disturbance 
 from the lessor, his successors or assigns " and no 
 other, the lessor having no title at the time of 
 giving the lease, but afterward acquiring it, 
 subject to a prior mortgage, is not entitled to 
 any share of the surplus arising from a sale on 
 foreclosure of such mortgage. Ct. App., 1871, 
 Purr V. SUnton, 43 N. Y. (4 Hand,) 462 ; Aff'g 
 S. C, 52 Barb. 377. 
 
 155. Tenant holding over. Where a tenant 
 for one or more years holds over after the ex- 
 piration of his term, the law implies an agree- 
 
434 
 
 LEGACY— LEVY. 
 
 ment to hold for a year upon the terms of the 
 prior lease, so far as applicable ; and it will 
 make no difference that the tenant gave his 
 landlord notice that he did not intend to hold 
 upon those terms, but had rented elsewhere. 
 Com. App., 1872, Schuyler v. Smith, 51 N. Y. (6 
 Sick.) 309. 
 
 156. A tenant who holds oyer after the expi- 
 ration of his terra, is deemed in law to hold over 
 as tenant at the same rent as he had previously 
 paid, where no new agreement is made ; but, if 
 he has notice from the landlord, before the 
 expiration of his term, that he must pay a higher 
 rent if he continues in possession, the amount 
 being specified at the time, he must be deemed 
 to assent to pay such increased rent if he retains 
 possession. Sup. Ct., 1875,il/aciv. iJ«rt,5Hun,28. 
 
 167. Rent, when due. The term of a lease for 
 one year, commencing on the first day of May, 
 does not terminate until the first day of May of 
 the succeeding year, and an action for the rent 
 due at the expiration of the term cannot be 
 brought before the second day of May of that 
 year. lb. 
 
 158. Occupying as servant. One who is 
 hired as a servant and furnished by the master 
 with a liouse during liis service, occupies merely 
 as a servant and not as a tenant, and his rights 
 expire upon his discharge from service, and 
 if, after such discharge, he obtains permission 
 to retain possession on payment of rent until his 
 wife's health will permit of her removal, he does 
 not tliereby become a tenant at will or by suf- 
 ferance, but holds under a mere license, and no 
 notice to quit Is necessary. Sup. Ct., 1871, 
 Doyle V. Gibbs, 6 Lans. 180. 
 
 LEGACY. 
 
 1. Contingent. A bequest by a testator to 
 his daugliter of " the use of $1,000 during her 
 natural life, and after her death the same to be 
 paid to her children," does not vest anything 
 more than a contingent interest in the children 
 of the daughter during her life, and if they all 
 die before she does, the legacy lapses upon her 
 death and passes to the residuary legatees, or to 
 the lawful heirs of the testator. Sup. Ct., 1878, 
 Delavergne v. Dean, 45 How. 206. 
 
 2. For education. A legacy for education, 
 like one for maintenance, is entitled to prefer- 
 ence over general legacies ; and after satisfying 
 debts, funeral expenses and commissions, if there 
 be sufScient assets for that purpose, the trustees 
 should invest a principal sum sufficient to yield 
 at interest so much as they deem necessary for 
 such education. If there is any doubt as to the 
 sufficiency of the assets to provide for such 
 legacy, the legatee has the right to bring an 
 action for an accounting and to compel such 
 investment. Sup. Ct., 1872, Petrie v. Petrie, 7 
 Lans. 90. 
 
 8. Diminution for taxes. Taxes assessed 
 upon a specific fund directed by will to be in- 
 vested and the income paid to a legatee, are 
 chargeable upon such specific fund, and not 
 upon the general estate, unless a contrary in- 
 tention is manifested by the will. Sup. Ct, 1875, 
 Wells V. Knight, 5 Hun, 50. 
 
 4. But the legatee is chargeable with only 
 such taxes as are assessed upon the specific fund, 
 and if the executors do not separate and invest 
 it, but retain it and pay interest thereon, the 
 legatee is entitled to the entire interest undi- 
 minished by taxes. lb. 
 
 5. To subscribing witness. A legacy to 
 one of two subscribing witnesses to a will is not 
 void under the statute, if such witness is a non- 
 resident of the State, and due proof of tlie 
 execution of the will is made by the other wit- 
 ness. Ct. App., 1867, Cornwell v. Wooley, 43 
 How. 475. 
 
 6. When vests. Under the provisions of a 
 will, which requires the executors to pay to a 
 trustee named $4,000, to be invested by him in 
 the best manner, and the interest paid to a 
 legatee named, semi-annually, during her life ; 
 and further directs the executors to pay the 
 legacies mentioned in the will as fast as they 
 may be able to do so without sacrificing the 
 estate, but to pay all, except such as were 
 directed to be paid at a future day, within two 
 years from the testator's decease, — it appearing 
 that the testator left personal property drawing 
 interest, and bank stock earning dividends, more 
 than sufficient to pay all his debts and legacies ; 
 — Seld, that such legatee was entitled to the ben- 
 efit of her legacy, that is, to the interest on the 
 $4,000, from the decease of the testator. Sup. 
 Ct. Cir., 1871, Pierce v. Chamberlain, 41 How. 
 501. 
 
 7. Action by legatees for accounting 
 and construction of will. Legatees under 
 the will of a deceased person, who claim that by 
 the will of another decedent there has been an 
 equitable conversion of real estate in favor of 
 their testator, or that the latter has charged their 
 legacies upon land devised to him by such other 
 will, where the same person is the legal represen- 
 tative of both estates, may maintain an action 
 for the construction of both wills, an accounting, 
 and the payment of their legacies. Sup. Ct., 
 1878, Fisher v. Subbell, 7 Lans. 481 ; S. C, 65 
 Barb. 74. 
 
 8. In such action, all such legatees may join as 
 plaintiffs, the same as creditors having claims of 
 equal degree under like circumstances ; and the 
 personal representative of the estate to be 
 charged must be made a party to it as such, and 
 it is not sufficient to make him a party as the 
 representative of the other estate. lb. 
 
 See Wills. 
 
 LETTER OF CREDIT. 
 
 1. Construction. A letter of credit for 
 opening an account in favor of a third party, to 
 be used by 60-day sight drafts, contained 
 clauses as follows : " This credit is intended for 
 advances to be made on consignments of mer- 
 chandise to my address, and you will please keep 
 the same in force for the coming year 1860. It 
 is, however, not required that bills of lading 
 accompany the advice of drafts." ffeld, that 
 the parties with whom such account was 
 opened were not bound to have the bills of 
 lading when they accepted the drafts, nor to 
 ascertain that they were drawn against consign- 
 ments, nor was it necessary that bills of lading 
 should accompany the drafts. Sup. Ct., 1871, 
 Gelpckey. Quentell, 59 Barb. 250. 
 
 LEVY. 
 See Execution ; pkaotioh. 
 
LEX LOCI— LIBEL. 
 
 435 
 
 LEX LOCI 
 
 1. As to contracts. The law of the place 
 where a contract is made determines its nature, 
 Talidity, obligation and legal effect, unless it 
 appears to have been made with reference to the 
 laws and usages of another State, when, in con- 
 formity with the presumed intention of the par- 
 ties, the law of such State will furnish the rule 
 of interpretation. Ct. App., 1871, Dike y. Erie 
 Eailwaij Co., and Floyd v. Same, 45 N. Y. (6 
 Hand,) 113. 
 
 2. Where a railroad ticket is purchased by a 
 citizen of this State, from a company existing 
 under the laws of this State, between stations 
 within the State, the contract is to be goTerned 
 by the laws of this State, as to the rule of dam- 
 ages for an injury received «n route, although the 
 road passes through,and the injury is inflicted in 
 another State. lb. 
 
 8. It is settled in this State, by repeated ad- 
 judications, that the law of the State where the 
 contract is dated and is to be performed is to 
 govern as to its construction and validity. Sup. 
 Ct., 1873, Hildreth v. Shepard, 65 Barb. 265. 
 
 4. The usury law of New York applies to a 
 draft drawn in Boston on a party in New York, 
 and accepted by the latter payable at a specified 
 place in New York, which is afterward sold at 
 a discount in Boston. lb. 
 
 6. Rights of married women. In the 
 absence of proof of the law of Russia, the law 
 of this State must furnish the rule for the guid- 
 ance of our courts, in cases involving the rights 
 and property of married women in that country. 
 LoTT, Ch. C., dissents. CoiA. App., 1871, Savage 
 V. OVVet7,44N. Y. (5 Hand,) 298; Eev'g S. C., 
 42 Barb. 374. 
 
 LIBEL. 
 
 1. WTiat actionable. Whether or no matter 
 is libellous, so as to be actionable, depends upon 
 the style, scope, spirit and motive of the publi- 
 cation, taken in its entirety, and the inquiry is 
 into the natural effect of it, not only upon the 
 public generally, but upon the neighbors and 
 friends of the person aimed at. Sup. Ct., 1874, 
 Moffattx. CauCdwell, 3 Hun, 26. 
 
 2. A sensational account of a man's poverty, 
 or even of his sudden acquisition of wealth, which 
 tends to expose him to ridicule, is actionable. lb. 
 
 3. Written words, charging another with being 
 a drunkard and with extortionate charges for 
 his professional services^ are libellous, and an 
 action will lie therefor without proof of special 
 damages. Ct. App., 1871, Sanderson v. Caldwell, 
 45 N. Y. (6 Hand,) 398. 
 
 4. The meaning of words cannot be extended 
 by an innuendo, beyond what is justified by the 
 language used and the extrinsic facts with which 
 they are connected. lb. 
 
 5. Where a publication charged that the 
 plaintiff, " in his sober moments," had done a 
 " big thing in the way of collecting soldiers' 
 claims against the government for a fearful per- 
 centage," and, that " the blood money he got 
 from the boys in blue in this way was supposed 
 to be a big thing ; " — Held, that this, taken in 
 connection with the fact that the plaintiff was a 
 lawyer, might fairly be construed as imputing to 
 him dishonesty and extortion in liis professional 
 capacity, and also an immoderate use of intox- 
 icating liquors. lb. 
 
 6. Although not applied to the profession of 
 the plaintiff, he may by extrinsic proof connect 
 such libellous words with his professional cliar- 
 acter, and recover the natural and proximate 
 damages to him in his profession, resulting 
 therefrom. But the fact tliat the words used 
 relate to the plaintiff's business, does not in any 
 case form the substantive ground of action, 
 lb. 
 
 7. Publication. The foundation of the 
 action for defamation, whetlier libel or slander, 
 is an injury done to reputation. N. Y. C. P., 
 1871, Broderick v. James, 3 Daly, 481. 
 
 8. Statements respecting the financial stand- 
 ing and credit of a mercliant, publislied by the 
 proprietors of a mercantile agency, and sent to 
 all of their patrons irrespective of the question 
 whether they have any interest in the informa- 
 tion given, are not privileged communications ; 
 but such proprietors are liable in damages for a 
 false report, though made in good faith, upon 
 information deemed reliable, and the fact that 
 the libellous statement is in ciplier understood 
 only by the patrons is not material. Ct. App., 
 1871, Sunderlin v. Bradstreet, 46 N. Y. (1 Sick.) 
 188. 
 
 9. WTiat privileged. Reporters, editors 
 and proprietors of newspapers are entitled to 
 entire immunity for wiiat they may publish of 
 any judicial proceeding in their several places, 
 and in the discharge of their respective duties, 
 if it is a fair and true report thereof, and 
 published without malice. N. Y. Supr. Ct., 1874, 
 Ackerman v. Jones, 37 N. Y. Supr. (5 J. & Sp.) 
 42. 
 
 10. As to such privilege, there is no distinction 
 between a mere ex parte proceeding, such as a 
 preliminary investigation beinre a magistrate, 
 and the regular proceedings in a court of law. 
 lb. 
 
 11. Nor does the fact that the character of a 
 person, other than the one against whom the 
 proceeding was instituted, was affected by the 
 affidavit for the commencement thereof, a state- 
 ment of which was published, affect the privi- 
 lege, lb. 
 
 12. Malice is not to be implied from the fact 
 of publication ; nor is the disregard of a letter 
 denying the charge and asking for a retraction 
 thereof, evidence of malice. lb. 
 
 13. Where the defense is that the report was 
 privileged, not that it was true, evidence of its 
 falsity is immaterial, and, therefore, inadmissi- 
 ble, lb. 
 
 14. Where certain merchants who had lost 
 goods by false representations, having probable 
 cause to suspect another as a party to the fraud, 
 drew up and signed a paper reciting that they 
 had been " robbed and swindled " by such party 
 and otliers named, and agreeing to share the 
 expenses of their prosecution ; — Held, that the 
 communication was privileged ; that the terms 
 used, though strong and plain, were not irrele- 
 vant or inappropriate ; and that no action would 
 lie therefor without proof of express malice. Ct. 
 App., 1871, fflinci V. Colby, 46 N. Y. (1 Sick.) 
 427. 
 
 15. The exhibition of such paper to an agent 
 of one of the merchants liaving sole cliarge of 
 his business there, for the purpose of obtaining 
 the signature of tlie latter, is also a privileged 
 communication. lb. 
 
 16. Words or writings, used by a party or 
 counsel conducting judicial procedings, which 
 are material or pertinent to tlie issues involved, 
 are absolutely privileged, and no action can be 
 founded tliereon. Ct. App., 1872, Marsh v. Etls- 
 
436 
 
 LIBEL. 
 
 worth, 50 N. Y. (5 Sick.) 309; Afi'g S. C, 2 
 Sweeny, 589. 
 
 17. Where the discharge of a bankrupt was 
 opposed, on the ground of fraud in omitting to 
 include in his assets his interest in the property 
 of a firm in which it was alleged he was a part- 
 ner, an objection, charging that such bankrupt 
 had procured his alleged partner, to testify false- 
 ly in relation thereto, — Seld, material and there- 
 fore privileged. lb. 
 
 18. The doctrine, that words spoken or writ- 
 ten, in a judicial proceeding, by any person hav- 
 ing an interest or a duty to perform therein, are 
 absolutely privileged, if pertinent and material, 
 is not restricted to such words used in trials of 
 civil actions or indictments, but includes those 
 used in any proceeding before a competent court 
 or magistrate, in due course of law, which is to 
 result in any determination or action by such 
 court or magistrate, and is therefore applicable 
 to a complaint before a fire marshal to institute 
 an inquiry as to the origin of a fire. N. Y. Supr. 
 Ct., Sp. T., 1873, Newjield v. Copperman, 47 How. 
 87 ; S. C, 15 Abb. N. S. 360. 
 
 19. Action for. A corporation can maintain 
 an action for libel, where the matter alleged is 
 not libelous per se, if such matter is injurious to 
 them and was maliciously published, and they 
 have been specially damaged thereby ; but 
 without proof of special damage the action can- 
 not be maintained. N. Y. Supr. Ct., 1871, Knick- 
 erbocker Life Ins. Co. v. Ecclesine, 42 How. 
 201 ; S. C, 11 Abb. N. S. 385 ; 34 N. Y. Supr. (2 
 J. & Sp.) 76; Aff'g S. C, 6 Abb. N. S. 9. 
 
 20. In order to sustain an order of arrest in 
 such action, the complaint must show special 
 damage. A general averment of loss of custo- 
 mers will not sufice, but the names of those al- 
 leged to have been lost must be given. lb. 
 
 21. The complaint. If the words charged as 
 slanderous are not actionable per se, the plain- 
 tiff must allege special damages and state them 
 particularly in his complaint, and must prove 
 them, otherwise he cannot recover. Sup. Ct., 
 1866, Bassil v. Elmore, 65 Barb. 627. 
 
 22. A count which charges words not action- 
 able per se, and alleges that in consequence 
 thereof the plaintiff's friends and relations slight- 
 ed and shunned her, does not show any pecu- 
 niary injury for which a recovery can be had. 
 Otherwise, where it alleges that, by reason of 
 the slander, she was turned away from her un- 
 cle's house, where she lived. lb. 
 
 23. Words which, in their natural construction, 
 tend to injure the reputation of their subject 
 and expose him to hatred, contempt, or ridicule, 
 need no averment that they were intended to 
 impute such offence. It is only wliere the words 
 do not, of themselves, fairly charge the offence, 
 that extrinsic averments are necessary. Com. 
 App., 1872, More v. Bennett, 48 N. Y. (3 Sick.) 
 472; Eev'g S. C, 48 Barb. 229; 33 How. 
 177. 
 
 24. A complaint charging the publication of 
 an article, wherein a common prostitute was al- 
 leged to be under plaintiff's patronage or pro- 
 tection, and alleging that the publication was 
 false and malicious and made with intent to 
 blacken plaintiff's reputation, — Held sufficient, 
 without averments that the words published 
 were intended to charge that the prostitute was 
 under plaintiff's protection or patronage for il- 
 licit purposes. lb. 
 
 25. The ansTwer. In an action for libel, a 
 defendant is now entitled to set up matters tend- 
 ing to show the truth of the charge contained in 
 the publication, by Way of mitigation, with the 
 
 proper averments that he believed such matters 
 to be true at the time of the publication, and 
 made such publication without malice. Sup. Ct, 
 1872, Bennett v. Mathews, 64 Barb. 410. 
 
 26. It is no objection to an answer setting up 
 such facts by way of mitigation, that it com- 
 mences in form as a full defence, when it con- 
 cludes with averments which make it only a 
 partial defence. lb. 
 
 27. Justification. The defendant in an ac- 
 tion for libel may allege that the publication 
 was true or that it was privileged. N. Y. Supr. 
 Ct., Sp. T., 1875, Kelly v. Taintor, 48 How. 
 270. 
 
 28. An answer which avers that the article 
 on which the complaint is founded, is, as to the 
 matters complained of, true, " according to the 
 true intent and meaning thereof," is good, not- 
 withstanding the surplusage of the last clause, 
 lb. 
 
 29. An answer, which alleges that the defend- 
 ant, in the discharge of a public duty, wrote a 
 letter to the mayor of the city relative to a 
 transaction of the plaintiff ; requesting him to 
 give the plaintiff an opportunity to explain, and 
 afterward in reply to an article published by 
 the plaintiff, wrote and published the article 
 complained of, does not show that it was privi- 
 leged, lb. 
 
 30. Where the same matter is intended to be 
 used both in justification and in mitigation of 
 damages, it must be pleaded separately for each 
 purpose, and it is not sufficient to plead it in jus- 
 tification only. lb. 
 
 31. Allegations in an answer, by the pub- 
 lishers of a newspaper, to an action for libel in 
 publishing the words ; " Dr. B. makes a very 
 bad book and vends medicines to match," to the 
 effect, 1, that plaintiff had been engaged in 
 publishing and vending bad and worthless 
 books, calculated to deceive and defraud, and 
 injurious and deceptive compounds, under the 
 guise of medicines, with euphonious and decep- 
 tive names ; 2, that defendants, as journalists, 
 deemed it their duty to expose all such decep- 
 tions, in order to promote the good of the pub- 
 lic : 8, that certain books published by the plain- 
 tiff, specifying them, were of an immoral and 
 deceptive character ; 4, that plaintiff prepares 
 and vends certain pretended medicines, which 
 are pernicious and bad, and the advertisements 
 thereof tend to deceive and defraud the public ; 
 and that evidence of these allegations will be 
 given in justification and mitigation of damages ; 
 are not irrelevant and should not be stricken out. 
 Sup. Ct., Sp. T., 1871, Burn v. Judd, 11 Abb. N. 
 S. 390. 
 
 32. In civil actions, the truth of the alleged 
 libel, if pleaded in justification, may be proved 
 as a complete bar to the suit, and the motive of 
 the publication is immaterial. The same rule ap- 
 plies to slander cases. Sup. Ct., 1875, George v. 
 Jennings, 4 Hun, 66. 
 
 33. The provision of sec. 8, art 1, of the con- 
 stitution, that the party shall be acquitted " if it 
 shall appear to the jury that the matter charged 
 as libellous is true and was published with good 
 motives and for justifiable ends," applies only 
 to criminal prosecutions. lb. 
 
 34. Evidence. Under a complaint which 
 contains but one valid count, the plaintiff can 
 only prove the slanderous words charged in that 
 count, or words equivalent thereto. Sup. Ct, 
 1866, Bassil v. Elmore, 65 Barb. «27. 
 
 35. Where facts in justification of a libel and 
 facts in mitigation are pleaded in the same an- 
 swer, under sec. 165, of the Code, the allega- 
 
LICENSE— LIEN. 
 
 437 
 
 tions in justification, though unproved, are no 
 longer evidence of malice, to he considered by 
 the jury and taken as enhancing the damages of 
 the plaintiff. Ct. App., 1871, Klinck v. Colby, 
 46 N. y. (1 Sick.) 427. 
 
 86. Nor can such allegations be So used where 
 under an answer proper to that end, the defend- 
 ant has shown the communication to be privi- 
 leged, lb. 
 
 37. Character. Whether or not, in an action 
 for libel since the Code, testimony as to the 
 general character of the plaintiff can be intro- 
 duced, where no basis for it has been laid by 
 allegations in the answer, it is not an error for 
 whicii a new trial should be granted, to permit 
 such testimony in an action tried in the city of 
 plaintiff's residence, after it has been announced 
 near the beginning of the trial that such testi- 
 mony would be received, the plaintiff also pro- 
 ducing witnesses to sustain his character. Sup. 
 Ct., 1872, Bennett v. Mathews, 64 Barb. 410. 
 
 SB. Damages. Where a defendant fails to 
 prove a justification set up by him in his answer, 
 that fact does not necessarily go in aggravation 
 of damages, but the jury may in their discre- 
 tion so regard it. Sup. Ct., 1872, Bennett y. Mat- 
 thews, 64 Barb. 410. 
 
 39. In an action for the publication of libel- 
 lous words, no proof being offered of any special 
 damages, or of malice aside from the fact of 
 publication, — Held, the plaintiff's character not 
 being impeached, that a nominal verdict would 
 have been a denial of justice, and a refusal to 
 charge that the jury might award nominal dam- 
 ages was correct. Ct. App., 1871, Sanderson v. 
 I I Caldwell, 45 N. Y. (6 Hand,) 398. 
 
 LICENSE. 
 See Excise ; trespass. 
 
 LIEN. 
 See Mechanic's lien. 
 
 1. For advances. A factor, who accepts a 
 draft drawn by his principal upon the promise 
 of the latter to make a consignment to cover the 
 same, has a lien upon goods afterward shipped 
 for that purpose, from the moment of their ship- 
 ment. N. Y. C. P., 1871, Heard v. Brewer, 4 Daly, 
 136. 
 
 2. For balances. General liens of a banker 
 or broker for a balance of account are not favor- 
 ed. N. Y. Supr. Ct., 1873, Grant v. Taylor, 35 
 N. Y. Supr. (3 J. & Sp.) 338. 
 
 8. Where a banker or broker claims a lien on 
 securities in his hands for a general balance of 
 accounts, upon the ground of a usage to that ef- 
 fect, such usage should be proved. lb. 
 
 4. Where numerous similar transactions have 
 before "been had between the parties, and the 
 banker or broker has never before claimed a 
 lien on securities, but has always surrendered 
 collaterals on payment of the loans to which 
 they were collateral, these facts are inconsis- 
 tentwith a claim of lien for a general balance, 
 lb. 
 
 5. Covenant for. A covenant in a lease to 
 pay a specified rent, followed by a clause as fol- 
 lows : " And a lien to be given by said lessees 
 to said lessors, to secure the payment thereof, as 
 hereinbefore stipulated, on all the furniture 
 which shall be placed in said hotel by said les- 
 sees," does not create any lien upon the furniture 
 afterward placed in such hotel. N. Y. Supr. Ct., 
 1871, Hale v. Omaha National Bank, 33 N. Y, 
 Supr. (IJ. & Sp.) 40 ; S. C. again, 47 How. 201 ; 
 39 N. Y. Supr. (7 J. & Sp.) 207. 
 
 6. In order to create or vest a lien the lan- 
 guage relating to it should speak m presenti, and 
 clearly indicate that it is to take effect upon the 
 subject-matter at the time of the execution of 
 the instrument. lb. 
 
 7. Notice of an alleged lien to subsequent lien- 
 ors will not make it valid as against them if in 
 fact invalid before notice. lb. 
 
 8. A shipvrright's lien upon a boat of which 
 he has possession, for repairs necessary to put it 
 in navigable condition, made at the request of 
 the owner, is prior to that of a mortgage on 
 the boat executed and filed and due before the 
 repairs were ordered, where the mortgagee has 
 never been in possession. Sup. Ct., 1872, Scott 
 V. Delahunt, 5 Lans. 372. 
 
 9. On vessel. The lien upon a vessel, given 
 by the act of 1862, is discharged by the giving 
 of the bond therein provided for ; and no act of 
 the lienor can afterward revive it. Ct. App., 
 1870, Sheppard v. Steele, 43 N. Y. (4 Hand,) 
 52. 
 
 10. The remedy of the lienor is thenceforward 
 upon the bond ; and, where that is given before 
 the filing of proper specifications, it is not neces- 
 sary in order to preserve such ij^medy, that they 
 be filed at alL lb. 
 
 11. Trustee's lien. A trustee has a lien upon 
 the estate or property in his hands, for expenses 
 incurred and services rendered by him in the 
 discharge of his trust ; but not for other services 
 in no way connected therewith. N. Y. C. P., 
 1870, Henry v. Fowler, 3 Daly, 199. 
 
 12. Possession necessary. A lien, upon 
 personal property, whether arising by operation 
 of law, or from express contract, is aright of de- 
 taining the property of another until some claim 
 is satisfied, and it cannot exist without posses- 
 sion of the property in the person, claiming the 
 lien. Sup. Ct., 1872, McCaffrey v. Wooden, 62 
 Barb.-316. 
 
 13. Priority. An equitable lien upon lands, 
 created by the payment, by one incumbrancer, 
 of moneys to redeem them from tax sales, will 
 not be preferred to a prior lien by judgment 
 thereon, although the lands were acquired by 
 the debtor after the recovery of the judgment. 
 Ct. App., 1872, Cook v. Banker. 50 N. Y. (5 Sick.) 
 655. 
 
 14. Waiver of. A lien for chattels for work 
 done on them may be waived by any special 
 agreement giving credit, or by the lienor's tak- 
 ing security. N. Y. Supr. Ct, 1873, Murphy v. 
 Lippe, 35 N. Y. Supr. (3 J. & Sp.) 542. 
 
 LIFE ESTATE. 
 See Tenant eok life. 
 
438 
 
 LIFE ESTATE— LIMITATION OF ACTIONS. 
 
 LEFE INSURANCE. 
 See Insubancb, life. 
 
 LIMITATION OF ACTIONS. 
 
 1. Affects remedy only. The statute of 
 limitations affects the remedy only ; it does not 
 impair the obligation of a contract, or pay a 
 debt, or create any presumption of payment, 
 but merely bars a recovery. Sup. Ct., 1871, 
 Johnson v. Albany ^ Susg. R. R. Co., 6 Lans. 222 ; 
 AfE'd, S. C, 64 N. Y. (9 Sick.) 416. 
 
 2. It is a shield, not a weapon of offense, and 
 a party seeking relief based on allegations of 
 payment, must show payment in fact, and can- 
 not rely upon the bar of the statute. lb. 
 
 3. After removal to this State. An ac- 
 tion upon an agreement under seal entered into 
 in the State of Massachusetts between parties 
 then resident tliere, is not barred here by the 
 statute of limitations, as against one of the par- 
 ties who removes to this State, until 20 years 
 after such removal. Sup. Ct., 1871, Sail v. Rob- 
 bins, 4 Lans. 468. 
 
 . 4. Foreign statute. The statute of limita- 
 tions of a foreign State, where a contract was 
 made and to be executed, is no defense to an 
 action on such contract in this State. Sup. Ct., 
 1872, Carpentier v. Minium, 6 Lans. 86. 
 
 5. Foreign corporation. A foreign railway 
 corporation cannot, in an action brought in this 
 State, claim the benefit of the statute of limita- 
 tions ; although it has, for more than tlie time 
 specified in the statute, continuously operated 
 a road and had property, a managing agent, 
 and an oflBce in this State. Ct. App., 1872, 
 Rathbun v. Northern Railway Co., 50 N. Y. (5 
 Sick.) 656. 
 
 6. Claim against estate. A reference by 
 agreement of a disputed claim against an estate 
 must be deemed the commencement of an action, 
 for the purpose of determining whether an ac- 
 tion has been brought within the time limited by 
 statute. Sup. Ct., 1875, Hultslander v. Thompson, 
 5 Hun, 348. 
 
 7. Assault and battery. An action against 
 a railroad company for an act done by its ser- 
 vant in the course of his employment, which 
 would have sustained an action for assault and 
 battery against the servant, must be deemed an 
 action for assault and battery when brought 
 against the company, and is therefore, under 
 sec. 98 of the Code, barred in two years. N. Y. 
 Supr. Ct., 1870, Priest v. Hudson Riv. R. R. Co., 
 10 Abb. N. S. 60 ; S. C, 2 Sweeny, 595. 
 
 8. Bond held as collateral. Where the 
 payee of a bond, executed by his father and 
 payable after the death of the father, assigned 
 the same as collateral to his own note due one 
 day after date, and died some seven years after- 
 ward, leaving the note unpaid ; — Held, in an 
 action upon the bond after the death of the 
 father, which occurred nine years after that of 
 the s.on, that the claim was not barred by the 
 statute of limitations, but the plaintiff was en- 
 titled to collect the amount of the bond, and 
 must account to the estate of the son for the 
 balance above the debt and interest. Sup. Ct., 
 1874, Peck V. Schenck, 2 Hun, 673. 
 
 9. Cutting timber. Wliere, as incidental to 
 an action for the reformation of a deed, on the 
 ground of fraud, by the insertion of a reserva- 
 
 tion of certain timber, relief is granted by way 
 of damages for timber cut by the grantee, no 
 recovery can be had for timber so cut more than 
 six years prior to the commencement of the ac- 
 tion. Com. App., 1871, Wells v. Yates, 44 N. Y. 
 (5 Hand,) 525. 
 
 10. Equitable. An action in which the re- 
 lief to be sought is necessarily of an equitable 
 nature, must be brought within 10 years after 
 the cause of action accrued. N. Y. Supr. Ct., 
 1874, McTeague v. Coulter, 38 N. Y. Supr. (6 J. 
 & Sp.) 208. 
 
 11. Except as provided by subd. 6, sec. 91 of 
 the Code, actions for specific relief in equity are 
 to be brouglit within 10 years. Sup. Ct., 1878, 
 Salisbury v. Mors?, 7 Lans. 359. 
 
 12. Where the executor of an estate is also 
 administrator of a deceased devisee of his testa- 
 tor, who had become personally liable by his 
 acceptance of his devise for a, legacy charged on 
 the devised property, his only remedy against 
 the subsequent devisees or grantees of that 
 property, to recover back the amount of such 
 legacy paid by him, is in equity, and he is not 
 barred by the six years' limitation at law, 
 but has 10 years in which to bring his action, 
 lb. 
 
 18. By legatee. An action by a legatee to 
 have property charged with the legacy sold for 
 the payment thereof, is an equitable action, 
 and, under sec. 97 of the Code, must he brought 
 within 10 years after the cause of action ac- 
 crued. Sup. Ct., 1876, Loder v. Hatfield,i Hun, 
 36. 
 
 14. For fraud. An action to set aside a con- 
 veyance as being fraudulent must, under subd. 
 6, sec. 91 of the Code, be brought within six 
 years after the discovery by the aggrieved party 
 of the facts constituting the fraud. Sup. Ct", 
 1873, Taft V. Wright, 47 How. 1. 
 
 15. Personal knowledge of the facts are not 
 essential, but a party is chargeable with notice 
 if an attorney employed by him for that purpose 
 has made such discovery. lb. 
 
 16. The provisions of the Revised Statutes re- 
 lative to the limitation of actions do not apply 
 to cases where the cause of action arose before 
 those statutes took effect ; and in a case of fraud 
 clearly established, wherein the cause of action 
 arose before the Revised Statutes, a court of 
 equity is not barred from granting relief by any 
 lapse of time. Sup. Ct., 1872, Prindle v. Bev- 
 eridge and Lytle v. Same, 7 Lans. 225. 
 
 17. To redeem. An action by a mortgagor 
 against a mortgagee in possession for an ac- 
 counting and redemption, is a purely equitable 
 action, and comes within the provision of sec. 
 97 of the Code ; and such action must be brought 
 within 10 years after entry by the mortgagee un- 
 der claim of the title. Sup. Ct., 1871, Hubbell v. 
 Sibley, 6 Lans. 51 ; Aff'd, S. C, 50 N. Y. (5 Sick.) 
 468. The time will, however, be extended by any 
 act of the party in possession amounting to an 
 acknowledgment of the continued existence of 
 the right to redeem. Ct. App., 1878, Miner v. 
 Beekman, 14 Abb. N. S. 1 ; S. C, 50 N. Y. (5 
 Sick.) 337 ; Rev'g S. C, 42 How. 33 ; 11 Abb. 
 N. S. 147 ; 38 N. Y. Supr. (IJ. & Sp.) 67. 
 
 18. The limitation of 20 years for actions for 
 the recovery of real property, &c. (Code, sees. 
 78, 79), apply only to cases where prior to the 
 Code the remedies sought were administered by 
 courts of law. lb. ' 
 
 19. An action to redeem must be brought 
 within 10 years after the cause of action arose, 
 which, in the case of a sale on foreclosure of a 
 mortgage, is the time when the purchaser takes 
 
LIMITATION OF ACTIONS. 
 
 439 
 
 possession. Since the enactment of ch. 741, 
 Laws of 1870 (7 Edm. Stats. 775), there is no 
 exception in favor of a married woman. Sup. 
 Ct., 1874, De^ew v. Dewey, 46 How. 441. 
 
 20. An action hy an assignee for the benefit 
 of creditors to redeem securities transferred by 
 the debtor, is barred after the lapse of 10 years 
 from the assignment. Ct. App., 1871, Bennett v. 
 Cook, 45 N. T. (6 Hand,) 268. 
 
 21. To reform deed. A cause of action to 
 have a deed reformed or its effect varied on the 
 ground of mistake, i-s barred by the expiration 
 of 10 years from the time when the same ac- 
 crued, and it seems the same rule applies to its 
 use as a defense. Sup. Ct., 1871, Cramer v. 
 Benton, 4Lan8. 291; S. C, 60 Barb. 216. 
 
 22. To remove cloud. It seems that an ac- 
 tion to remove a cloud on the title to land is not 
 barred by lapse of time, while such cloud con- 
 tinues to exist. Ct. App., 1873, Miner v. Beek- 
 man, 14 Abb. N. S. 1 ; S. C, 50 N. Y. {6 Sick.) 
 837. 
 
 23. To set aside deed. An action to set 
 aside a deed and recover possession of the land 
 conveyed, on the ground of the grantor's un- 
 soundness of mind at the time of its execution, 
 is one for the recovery of real property, and is 
 governed by ch. 2, not by ch. 3, of the Code. 
 Sup. Ct., 1871, Marvin v. Lewis, 61 Barb. 49. 
 
 24. For specific performance. An action 
 for the specific performance of a contract for the 
 sale of lands, though under seal, is not an ac- 
 tion upon a sealed instrument, within the mean- 
 ing of sec. 90 of the Code, but comes within the 
 class of actions provided for in sec. 97, and is 
 barred after the lapse of 10 years. Ct. App., 
 1872, Peters v. Delaplaine, 49 N. Y. (4 Sick.) 
 362. 
 
 25. Exceptions. An action for board, cloth- 
 ing, and care furnished an intestate, and money 
 paid for his funeral expenses, must be brought 
 against his administrators within seven years 
 and six months-after his decease, or within one 
 year after the issuing of letters of administra- 
 tion, even though there was at the time of the 
 death of the intestate an outstanding adjudica- 
 tion of idiocy against him, and a trustee over 
 his estate then living. Sup. Ct, 1874, Sanford 
 V. Sanford, 2 Hun, 94. 
 
 26. A non-resident defendant, doing business 
 in New York, can claim to be allowed, under the 
 statute of limitations if at all, only for the time 
 actually spent by him in this State. Ct. App., 
 1871, Bennett v. Cook, 43 N. Y. (4 Hand,) 537. 
 S. P., Murray v. Fisher, 5 Lans. 98. 
 
 27. Marriage. Under the provisions of the 
 Code as amended in 1851, the disability of mar- 
 riage extended the time for bringing a suit five 
 years, if it continued so long (sec. 101, subd. 4), 
 but only gave one year after the disability ceas- 
 ed (sec. 102) ; consequently, where an award was 
 made in favor of a married woman in 1857 and 
 she died in 1862, an action commenced thereon 
 by her executors in 1867 was barred by the 
 statute. Ct. App., 1873, Dunham v. Sage, 52 N. 
 Y. (7 Sick.) 229; Aff'g S. C, 7 Lans. 419, and 
 Eev'g 5 Lans. 451. 
 
 28. It seems a delay in the qualification of 
 executors upon an estate of a married woman 
 does not extend the time limited for bringing an 
 action by them. lb. 
 
 29. Foreign contract. The statute of lim- 
 itations of this State applies to a contract made 
 in another State, when sued upon here. Sup. 
 Ct., 1871, Murray v. Fisher, 5 Lans. 98. 
 
 80. Against joint debtors. If a cause of 
 action against two joint debtors was not barred 
 
 by the statute when originally commenced by 
 service of process on one of them, the other 
 joint debtor when summoned to show cause why 
 he should not be bound by the judgment, can- 
 not set up tlie statute of limitations as a defense. 
 Sup. Ct., Sp. T., 1873, Gibson v. Van Derzee, 47 
 How. 231 ; S. C, 14 Abb. N. S. 111. 
 
 31. The commencement of an action on a judg- 
 ment, making only one of the joint judgment 
 debtors defendant, does not stop the running of 
 the statute of limitations as against the other, 
 but, if made a party by order of court after the 
 expiration of 20 years from the recovery of such 
 judgment) he may avail himself of that defense. 
 Sup. Ct., 1875, MerriU v. Scott, 3 Hun, 657. 
 
 32. Mutual running account. In an action 
 upon an account for work, &c., accruing in the 
 years 1868 and 1869, the defendant may set off 
 an account in his favor against the plaintiff com- 
 mencing in 1855 and ending in 1863, tlie whole 
 constituting a mutual running account between 
 the parties, and the set-off, therefore, not barred 
 by the statute. Sup. Ct., 1871, Helms v. Otis, 6 
 Lans. 137. \ 
 
 33. Where one continues in the service of an- 
 other for many years, the master paying various 
 amounts in money and goods each year, and 
 charging them to the servant in account, the 
 law wiU apply such payments on the bal- 
 ance unpaid and not on the wages of any 
 particular year, and the account will be con- 
 sidered entire, and where such accounts have 
 been kept open and unliquidated, the servant 
 will not be limited to a recovery for six years' 
 service preceding the suit. Ct. App., 1875, Smith 
 V. Velie, 60 N. Y. (15 Sick.) 106. 
 
 34. Where separate sales of goods are made 
 from time to time, and separate bills rendered, 
 on which payments are made to apply specifi- 
 cally on particular bills, the account therefor 
 cannot be considered a running account, and 
 bills sold on which no payments have been made 
 witiiin six years prior to the commencement of 
 an action therefor are barred. Ct. App., 1875, 
 Albro V. Figuera, 60 N. Y. (15 Sick.) 630. 
 
 35. Where a son living upon and working the 
 farm of his father, without any agreement for 
 compensation for his services or for the board- 
 ing of hands, or accounting for produce used by 
 him, at various times delivered butter and eggs 
 to a merchant who had charged goods in ac- 
 count to him at the request of the father and 
 on his promise to pay it, and had them credited 
 on such account, such butter and eggs being the 
 produce of cows and fowls owned by father and 
 son together, kept on the farm and used on the 
 farm, and being so delivered at the suggestion 
 of the father, — Held, that the articles were de- 
 livered for the account of the father, and were 
 not to be treated as payment, but as items of a 
 mutual, open account current. Sup. Ct., 1872, 
 Green v. Disbrow, 7 Lans. 381. 
 
 36. On premium note. Where a premium 
 insurance note, given prior to the act of 1853, 
 has been assessed to its full amount, and the 
 requisite notices published fixing a time for pay- 
 ment, the lapse of six years after the date so 
 fixed will bar an action thereon ; and no perso- 
 nal demand, made after that, in accordance with 
 the provisions of said act, will revive it. Ct. 
 App., 1871, Sands v. Lilienthal, 46 N. Y. (1 Sick.) 
 541. 
 
 37. Security notes. The statute of limita- 
 tions applies to notes given to an insurance com- 
 pany as further security to its customers, under 
 a statute making them available for the pay- 
 ment of liabilities, and for any other purpose 
 
440 
 
 LIMITATION OF ACTIONS. 
 
 cpnnected with the business of the company, 
 and requiring them to be made payable within 
 12 months after date, and to be renewed at 
 maturity; and an action must be brought there- 
 on within six years after they become due. Sup. 
 Ct. 1873, Osgood v. Strauss, 65 Barb. 383 ; AfE'd, 
 S. C, 35 N. Y. (10 Sick.) 672. 
 
 38. Against sheriff. A cause of action in 
 favor of a county against its sheriff, for pro- 
 curing payment, by means of a sworn bill and 
 false vouchers, for the board of fictitious prison- 
 ers who were never confined in the county jail, 
 is not barred by the lapse of one year, tliat 
 not being an act done in his official capacity 
 and by virtue of his office. Sup. Ct., 1875, 
 Board of Supervisors of Kings Co. v. Walter, 4 
 Hun, 87. 
 
 39. The taking by a sheriff, under attach- 
 ment, of property supposed to be that of the 
 debtor, is an " act in his official capacity," within 
 the meaning of subd. 1, sec. 92 of the Code ; 
 and an action for the conversion thereof by a 
 third party claiming to be the true owner, must 
 be brought within three years. Ct. App., 1871, 
 Gumming v. Brown, 43 N. Y. (4 Hand,) 504. 
 
 40. A deputy-sheriff, for liabilities incurred 
 by acts done in his ofiicial capacity, is entitled 
 to the benefit of any statute limiting actions 
 against sheriffs. lb. 
 
 41. Statute begins to run, ■when. When 
 an assessment is made and the requisite notices 
 published fixing a time for payment, on a pre- 
 mium note given to a fire insurance company, 
 prior to the act of 1853, an action accrues there- 
 on and the statute of limitations begins to run 
 from the date so fixed for payment. Ct. App., 
 1871, Sands v. Lilienthal, 46 N. Y. (1 Sick.) 
 541. 
 
 42. Contract of infant. A cause of action 
 for the price of goods, not necessaries, sold to 
 an infant, does not accrue until it becomes 
 capable of being enforced by a ratification 
 thereof after he has attained his majority, and 
 the same is not barred until the time limited by 
 statute expires after such ratification. Sup. 
 Ct., 1876, Halsey v. Reid, 4 Hun, 777. 
 
 48. Causing land slide. A cause of action 
 for an injury to land by so excavating adjoining 
 land as to cause the former to cave and slide, 
 does not accrue until such sliding occurs, al- 
 though it may be long after the excavation was 
 made. Sup. Ct., 1872, Ludlow v. Hudson Riv. 
 R. R. Co., 6 Lans. 128 ; Kev'd, 4 Hun, 239. 
 
 44. Continuous injury. The right of en- 
 joying an easement to convey water across ad- 
 joining lands is a continuous one, and tlie un- 
 lawful preventing its exercise is a continuous 
 injury ; and an action for the damages accruing 
 within the statutory limitation as to time, may 
 be brought after the lapse of any period. Ct. 
 App., 1873, Arnold v. Hudson River R. R. Co., 
 55N. Y. (10 Sick.) 661. 
 
 45. Conversion of pledge. A cause of ac- 
 tion for the conversion of a pledge after pay- 
 ment of the debt secured by it, does not accrue 
 until a demand and an unconditional refusal to 
 deliver it up, and consequently the action is not 
 barred until six years thereafter. Ct. App., 
 1873, Roberts v. Berdell, 15 Abb. N. S., 177 ; S. 
 C, 62 N. Y. (7 Sick.) 644; Aft'g S. C, 61 Barb. 
 87. 
 
 46. Fraud. Where a conveyance by an in- 
 solvent debtor purports on its face to be for a 
 valuable consideration, a creditor, though having 
 knowledge of its existence and of the circum- 
 stances of the grantor, cannot be said to have 
 knowledge of the facts constituting the fraud. 
 
 so as to set running the statute of limitations, 
 until discovery of the fact that the conveyance 
 was voluntary and without consideration. 
 Church, Ch. J., and Allen, J., dissent. Ct. 
 App., 1871, Erickson v. Quinn, 47 N. Y. (2 Sick.) 
 410. 
 
 47. Fraudulent representations. A cause 
 of action to recover damages for fraudulent 
 representations made by a mortgagee of land, 
 that there was no other incumbrance thereon, 
 whereby the plaintiff was induced to purchase 
 the property, arose immediately upon the con- 
 summation of the purchase, even though the 
 fraud was not then discovered ; and it will be 
 barred in six years from that date. Com. App., 
 
 1874, Northrop v. Hill, 57 N. Y. (12 Sick.) 351; 
 Aff'g S. C, 61 Barb. 136. 
 
 48. For cancellation of bonds. An action 
 to compel the surrendeir and cancellation of 
 town bonds, issued in aid of a railroad, on the 
 ground that they were illegally issued, is not 
 one for relief against fraud, on which the right 
 of action would not accrue until the discovery 
 of the fraud ; but the right of action accrues, 
 and the 10 years' limitation begins to run when 
 the bonds are transferred by the commissioners. 
 Sup. Ct., 1873, Town of Venice v. Breed, 66 Barb. 
 697. 
 
 49. Promise to pay 'when amount deter- 
 mined. Under an agreement by the assignee 
 of a claim against a third person to pay therefor 
 whatever sum such assignee should have allowed 
 to him thereon, by way of set-off or counter- 
 claim, in an action about to be commenced 
 against him by such third person, and to pay it 
 whenever it is determined what amount is al- 
 lowed, a cause of action accrues in favor of the 
 assignor, not when a report is made by a referee 
 in such action after a trial before him, allowing 
 a certain sum on such claim, but when judg- 
 ment is rendered on such report. Sup. Ct., 1872, 
 Chaplin v. Wilkinson, 62 Barb. 46. 
 
 50. The subsequent reversal of the judgment, 
 not shown to have been on the ground of an 
 improper allowance on such claim, will not affect 
 such assignor's right of action, which had become 
 vested thereby, nor will the settlement of the 
 action after such reversal, without any new trial, 
 affect such right of action. lb. 
 
 61. Promissory note. A promissory note 
 payable on demand, whether with or without 
 interest, is due forthwith, no demand being ne- 
 cessary before action, and the statute of limita- 
 tions begins to run from its date. Ct. App., 
 1872, WheeUr v. Warner, 47 N. Y. (2 Sick.) 619. 
 
 52. To redeem. The cause of action of one 
 claiming under a mortgagor to redeem from the 
 mortgage, as against one in possession and 
 claiming title under the mortgagee, does not 
 accrue until the defendant or his grantor took 
 possession. Ct. App., 1873, Miner v. Beekman, 
 13 Abb. N. S. 1 ; S. C, 50 N. Y. (5 Sick.) 337; 
 Kev'g S. C, 42 How. 33 ; 11 Abb. N. S. 147. 
 
 53. Services of attorney. The authority 
 of an attorney employed to prosecute or defend 
 a suit, in the absence of special circumstances, 
 continues by virtue of his original retainer until 
 it is finally determined. His contract is entire, 
 and the service he is to render is essentially 
 single, and no right of action accrues for each 
 successive service in the progress of the cause, 
 nor does the statute begin to run against his 
 claim for compensation, until his relation as at- 
 torney in the suit has terminated. Ct. App., 
 
 1875, Bathgate v. Haskin, 59 N. Y. (14 Sick.) 
 533. 
 
 64. Specific performance. The cause of 
 
LIMITATION OF ACTIONS. 
 
 441 
 
 action in equity of a vendee in an executory 
 contract for the sale of lands to enforce specific 
 performance thereof, accrues whenever he be- 
 comes entitled to such performance, and an 
 action must be brought within 10 years there- 
 after. No demand, or tender of performance on 
 his part, is necessary before instituting such 
 suit, but an ofEer to perform, made in the com- 
 plaint, and ability to perform at the time of the 
 decree, are all that are requisite. Sup. Ct., 1875, 
 McCotte\ V. Lawrence, 4 Hun, 107. 
 
 55. A written acknowledgment or promise is 
 necessary to take such a case out of the statute, 
 even in. equity. It is only when the vendee has 
 fully performed, that the vendor will not be 
 allowed to disturb his possession, or interpose 
 the statute of limitations to prevent specific 
 performance. lb. 
 
 56. As to an action for the specific perform- 
 ance of a contract for the sale of lands, the 
 statute begins to run from date when the vendor 
 refuses performance ; and it will make no differ- 
 ence that he was then unable to convey a per- 
 fect title, and therefore, that the form of relief 
 which the purchaser could then have had was 
 not precisely the same as that subsequently at- 
 tainable. Ct. App., 1872, Peters v. Delaplaine, 
 49 N. Y. (4 Sick.) 362. 
 
 57. For subrogation. As to an action by 
 an indorser of a promissory note, to be subro- 
 gated to the rights of a subsequent indorser in 
 securities held by the latter as collateral to his 
 indorsement, the statute begins to run only from 
 the time payment is made by the one seeking to 
 be subrogated, and he has 10 years from that 
 time in which to bring his action. Ct. App., 
 1871, Bennett v. Cook, 45 N. Y. (6 Hand,) 268. 
 
 58. Where a draft is not cancelled at maturity, 
 but the note of the prior, indorsed by the subse- 
 quent indorser, substituted, the rights of the- 
 parties on the original paper remaining un- 
 changed, the right of subrogation as to the se- 
 curities held by the latter on the draft does not 
 accrue, nor the statute begin to. run, until pay- 
 ment of the note. lb. 
 
 59. For trust property. A cause of action 
 cannot be said to exist, so that the statute of 
 limitations will begin to run upon it, unless 
 there is also a person in existence capable of 
 suing ; and where a person, named in a will as 
 executor and trustee of an express trust, refuses 
 to act in either capacity, the statute does not 
 begin to run against an action for the recovery 
 of the trust property until the appointment of a 
 trustee by the Supreme Court. Sup. Ct., 1872, 
 Dunning v. Ocean Nat. Bank of New York:, 6 Lans. 
 296. 
 
 60. Against trustee of corporation. Upon 
 each default of a corporation to file its annual 
 report, under the statute, a fresh liabihty accrues 
 in favor of its creditors against the trustees, and 
 the statute of limitations will run only from the 
 last default, notwithstanding a right of action 
 then existed against the same trustees for a 
 former default. N. Y. Supr. Ct., 1870, Nimmons 
 T. Tappan, 2 Sweeny, 652. 
 
 61. Against trustee of equity. The lia- 
 bility of a trustee of the equity of redemption 
 in mortgaged premises, who purchased the same 
 on foreclosure sale, to account to his cestuis que 
 trust for the rents and avails thereof, accrues as 
 soon as he takes possession of the premises under 
 the sale, and begins openly to occupy them as 
 his own ; and a cause of action therefor is barred 
 after the lapse of 10 years from the time posses- 
 sion is so taken. Ct. App,, 1873, Eubbell v. Med- 
 bury, 53 N. Y. (8 Sick.) 98. 
 
 62. Such a cause of action is not suspended 
 until the appointment of a new trustee, but may 
 be brought by any of the cestuis que trust at any 
 time. lb. 
 
 63. Trust. The statute of limitations does 
 not, as a general rule, begin to run upon a trust, 
 such as one created by the deposit of bonds to 
 be sold when a favorable market occurs, and 
 the proceeds, deducting advances, to be account- 
 ed for, until the trustee openly denies or repudi- 
 ates the trust, or gives some notice of an ad- 
 verse claim. Sup. Ct., 1874, Purdy v. Sistare, 2 
 Hun, 126. 
 
 64. No lapse of time is a bar to a direct trust, 
 as between executor and trustee and cestui que 
 trust. Sup, Ct., 1871, Robison v. Eobison, 5 Lans. 
 165. 
 
 65. On Twarranty. Inability to ascertain the 
 quality or condition of property warranted, at 
 the time of the sale, to be of a particular qual- 
 ity or in a certain condition, has never been 
 allowed to change the rule as to the time when 
 a right of action for a breach accrues. Sup. Ct., 
 1872, Allen v. Todd, 6 Lans. 222. 
 
 66. The warranty implied upon the sale by a 
 nurseryman of fruit trees to a customer calling 
 for a particular kind, is that they are of that 
 kind, and if they are of a different kind an 
 action on the warranty accrues immediately, and 
 not at the time when they begin to bear fruit 
 which proves to be of a different kind. lb. 
 
 67. Rene'wal of right of action. A credit 
 on a bank book for interest on the balance of 
 the deposits made within six years, is a sufficient 
 admission of indebtedness to take the whole 
 claim out of the statute of limitations. Sup. Ct., 
 1875, Rich v. Niagara Co. Savings Bank, 3 Hun, 
 
 68. Nevr promise. Where a debtor in ac- 
 count indorses and delivers to his creditor, either 
 as payment or as collateral security for a part of 
 his debt, the promissory note of a third party 
 due at a future day, a promise to pay the balance 
 is implied from that act, and the statute begins 
 to run from that time, and not from the time 
 of payment of such note. N, Y. Supr. Ct., 
 1875, Smith v. Ryan, 39 N. Y. Supr. (7 J. & Sp.) 
 489. 
 
 69. Such a promise can be implied only from 
 the act of the debtor himself or of an agent au- 
 thorized to bind him, but the makers of the note 
 cannot be deemed his agents so as to raise an 
 implied promise by their payment of their own 
 obligation. lb. 
 
 70. A parol ratification after attaining major- 
 ity, of a purchase of goods, not necessaries, 
 made during minority, and promise to pay there- 
 for, is sufficient to take the case out of the ope- 
 ration of the statute ; sec. 110 of the Code being 
 inapplicable to such a case. Sup. Ct., 1875, Scd- 
 sey V. Reid, 4 Hun, 777. > 
 
 71. A right of action, accrued and subsisting 
 at the time of the adoption of the Code, may be 
 taken out of the operation of the statute of lim- 
 itatiops by a subsequent parol promise to pay. 
 Ct; App., 1870, Lansing v. Blair, 43 N. Y. (4 
 Hand,) 48. 
 
 72. Payments made by the maker of a note 
 to the widow of the payee, having it in her pos- 
 session, before the granting to her of letters of 
 administration upon the estate, are good pay- 
 ments to her as administratrix if she subsequent- 
 ly takes out letters, all her acts for the benefit 
 of the estate from the time of the death of her 
 husband being, by relation, thereby confirmed, 
 and are available to her as a new promise, tak- 
 ing the note out of the statute of limitations. 
 
442 
 
 LIS PENDENS— LOAN COMMISSIONERS. 
 
 Sup. Ct 1872, Townsend v. Ingersoll, 48 How. 
 276; S. C, 12 Abb. N. S. 354. 
 
 73. The reason of the rule which holds part 
 payment of a demand as taking it out of the 
 statute, is, that it is an acknowledgment \>y the 
 debtor of his liability for the whole demand, and 
 from this acknowledgment the law implies a 
 new promise to pay the residue ; and, therefore, 
 to have that effect, the part payment must be 
 made by the party to be charged, or by an agent 
 authprized to charge him. Payment by a third 
 party of his own note transferred to the creditor 
 to be applied on account when collected, does 
 not BO operate. Ct. App., 1873, Harper v. Fairhy, 
 53 N. Y. (8 Sick.) 442. 
 
 74. Where the maker of a note became in- 
 solvent, and his assignees in bankruptcy declared 
 a dividend upon it, which was paid to an indorser 
 thereon, and he, reserving one-half, paid the re- 
 mainder to the holder of the note, stating to him 
 that it was a dividend declaredly the assignees 
 to apply on the note, and that he paid it as such, 
 — Held, that this was a sufficient part-payment 
 and individual acknowledgment of liability by 
 such indorser, to take the case as to him out of 
 the statute of limitations. Com. App., 1873, Miller 
 V. Talcott, 54 N. Y. (9 Sick.) 114. 
 
 75. Payment by one joint debtor atthe request 
 of the other stops the running of the statute on 
 the debt as to both. Sup. Ct., 1872, Pitts v. Hunt, 
 6 Lans. 146. 
 
 76. Where the creditor receives from one of 
 the joint debtors a check, with the statement 
 that he sends it at the request of his co-debtor, 
 whose money to that amount he has in his 
 hands, without any direction as to its ap- 
 plication, the creditor has a right to apply it to 
 their joint debt, notwithstanding an intention^jn 
 their part that it should be applied to a debt due 
 ttie creditor's daughter. lb. 
 
 77. A payment made by one former partner 
 upon a partnership debt, after the dissolution of 
 the firm, without the knowledge or authority of 
 the other partner, does not affect the running of 
 the statute in favor of the latter, whether such 
 payment is made before or after the action there- 
 on was otherwise barred. Sup. Ct., 1871, Graham 
 V. Selover, 59 Barb. 313 ; Aff'd, Ct. App., 1873, 
 S. C, 46 How. 107. 
 
 78. A partial payment made by one of two 
 administrators of the maker, upon a past due 
 note, out of the assets of the estate, although 
 made without the consent of his co-administra- 
 tor, saves the obligation from the operation of 
 the statute of limitations, if the statute has not 
 already run upon it ; otherwise if the payment 
 is made after the statute has run against tlie 
 note. Sup. Ct., 1871, Heath v. Grenell, 61 Barb. 
 190. 
 
 79. Such a payment does not have the same 
 effect as the presentation and allowance of a 
 claim against an estate under the statutes, but 
 the statute commences to run again from the time 
 of the payment. lb. 
 
 80. A payment on a note of an intestate, made 
 by his administratrix out of her own funds, after 
 the statute has run upon the note, cannot be 
 construed into a promise, or as indicating an in- 
 tent to revive the demand against the estate, and 
 cannot bind or affect the estate in any way. 
 lb. 
 
 81. See. 110 of the Code, which requires that 
 an acknowledgment or new promise shall be 
 In writing, to take a case out of the statute of 
 limitations, does not alter the effect of a pay- 
 ment of principal or interest, nor prescribe a 
 new rule of evidence as to the fact of such pay- 
 
 ment ; but that fact may, notwithstanding the 
 statute, be proved by a parol admission of the 
 larty. Ct. App., 1872, First National Bank of 
 Jtica V. Ballou, 49 N. Y. (4 Sick.) 155. 
 
 82. A payment of interest upon a note by the 
 maker in the name of the indorser, if subse- 
 quently recognized and approved by the latter 
 with full knowledge of the facts, will bind him, 
 as fixing the time from which the stati^ should 
 run ; and it is immaterial whose mcjiey was 
 used in making the payment. lb. 
 
 nciie; 
 
 LIS PENDENS. 
 See Pbactice. 
 
 1. As to corporate stock. The doctrine of 
 lis pendens, which is harsh in its effect, is not ap- 
 plicable to transfers of corporate stock. Com. 
 App., 1874, Holbrook v. N. J. Zinc. Co., bl N. Y. 
 (12 Sick.) 616. 
 
 2; The pendency in a court of another State of 
 an action^^ to determine the title to such stock, is 
 not constructive notice to a purchaser in this 
 State of a defect in the title of their grantor, 
 nor will it affect the title acquired by him ; nor 
 can the corporation whose certificate is so trans- 
 ferred defeat the title of a purchaser in good 
 faith, without actual notice, by proof of the 
 pendency of such an action in a court of this 
 State. lb. 
 
 3. Who bound by. A notice of lis pendens 
 binds no one except the defendant and those 
 who obtain possession or claim title or rights 
 under him. Sup. Ct., 1875, Thompson t. Clark, 4 
 Hun, 164. 
 
 LITERARY PROPERTY. 
 See Coptkight; iNjUNCiioif. 
 
 LOAN COMMISSIONERS. 
 
 1. Sale by, regularity. In an action by one 
 claiming under the mortgagor to establish his 
 right to redeem lands, sold by the commission- 
 ers for loaning the TJ. S. deposit fund in default 
 of payment of a mortgage given to them, alleg- 
 ing as a ground therefor irregularities in the 
 sale, it will be presumed in favor of the purchaser 
 that those officers took all the steps required by 
 statute (eh. 150, Laws 1837), in due form. Sup. 
 Ct, 1871, Wood V. Terry, 4 Lans. 80. 
 
 2. The notice of sale required by sec. 33 
 was regular and sufficient if published once in 
 each week for six successive weeks prior to the 
 sale, although the first publication was less than 
 42 days prior to the sale. lb. 
 
 3. Possession. A person claiming under the 
 mortgagor has no right to object that the com- 
 missioners did not take possession under the 
 statute. lb. 
 
 4. Record. The provision of the statute re- 
 qmring the commissioners to enter their pro- 
 ceedings in the book of minutes required to be 
 
LOCKPORT— MALICE. 
 
 443 
 
 kept by them, Is simply directory ; and an omis- 
 sion to make the entries does not afCect the reg- 
 ularity of the proceedings. lb. 
 
 LOCKPORT. 
 
 1. An action can be maintained against the 
 city of Lockport to recorer the rent due from it 
 to an individual for premises leased by it for a 
 public purpose, if after presentation of the claim 
 to the common council?- it neglects or refuses to 
 audit and allow it and order its payment. A 
 mandamus, if proper, is not the only remedy. 
 Sup. Ct., 1872, Buck v. City of Lockport, 43 How. 
 361 ; S. C, 6 Lans. 251. 
 
 2. Cross-WEilks. The charter expressly 
 confers upon tlie common council the power to 
 make and repair cross-walks, and it is, there- 
 fore, their duty to keep cross-walks made by 
 them in repair ; and the city is liable for what- 
 ever damages may be sustained by individuals 
 by reason of their omission to do so. Sup. Ct., 
 
 1871, nines v. City of Lockport, 41 How. 435 ; 
 S. C, 60 Barb. 378 ; 5 Lans. 16 ; Aff'd, 50 N. T. 
 (5 Sick.) 236. 
 
 3. The charter also gives them the same 
 power as is possessed by commissioners of high- 
 ways, and under that power it is their impera- 
 tive duty to keep such cross-walks in repair, if 
 it were otherwise doubtful. lb. 
 
 4. Even though tlie language of the charter is 
 permissive merely, the performance or non-per- 
 formance of this duty does not rest in the discre- 
 tion of tlie council, so as to relieve the city from 
 liability of their neglect to perform it. lb. 
 
 5. In order to exempt the city from liability 
 for a neglect of the common council to keep 
 cross-walks in repair, on the ground of want of 
 funds applicable thereto, it must show such 
 want of funds and of power to raise them. lb. 
 
 6. A cross-walk which has existed in a public 
 street of the City of Lockport for years is to be 
 presumed to have been constructed by or under 
 the authority of the city, in the absence of 
 proof on the subject, and if not so constructed, 
 it is an obstruction to tlie street ; and, in eitlier 
 case, the duty of keeping it in a proper and safe 
 condition devolves upon the city, and the city is 
 liable for injuries received in consequence of its 
 neglect to keep it in such condition. Sup. Ct., 
 
 1872, Walker v. City of Lockport, 43 How. 366. 
 
 7. Express notice of the dangerous condition 
 of a cross-walk, or of an obstruction thereto, is 
 not necessary to make the city liable, where 
 ample time has elapsed to make the defect 
 notorious. lb. 
 
 8. Notice to the superintendent of streets is 
 sufficient, the matter being within the purview of 
 his powers and duties. lb. 
 
 9. Assessments. It is not a valid objection to 
 an assessment for the repair of a sewer, under 
 the provisions' of the city charter, that the re- 
 pair was extended for a distance of 60 feet 
 beyond the line of a street, " at or near " which, 
 was by the resolution of the council to be one 
 terminus, the whole distance being some 40 or 
 more rods, and the entire work when completed 
 having been reported to and confirmed by the 
 council. Niag. Co. Ct., 1872, Webber v. City of 
 Lockport, 43 How. 368. 
 
 10. Neither is it a valid objection thereto that 
 the work was not done by contract after receiving 
 proposals, but it will be presumed that the coun- 
 cil decided the course taken to be necessary, as 
 contemplated by sec. 21, title 5, of the charter, lb. 
 
 11. Neither is it a valid objection that the 
 work was done before an assessment of its cost 
 was made, the provision of sec. 1, title 6, of the 
 charter on that subject being declaratory only, 
 lb. 
 
 12. The want of a sufBcient description of the 
 territory benefited in one ordinance on the sub- 
 ject is not a valid objection, if another ordinance 
 on the same subject, referred to therein makes 
 the description certain. The confirmation of the 
 assessment by the council after it is made has 
 been held sufficient. lb. 
 
 13. Tlie assessment of comparatively remote 
 property-owners for benefits, being within the 
 uncontrollable discretion of the assessors, is not 
 open to review on appeal. lb. 
 
 14. But the non-assessment of school, church, 
 and city property benefited thereby, is a fatal 
 objection to the assessment, such property being 
 exempted from ordinary taxes only. lb. 
 
 15. The want of a sufficient description of 
 parcels of real estate attempted to be assessed to 
 identify them, is also a fatal objection to such 
 assessment. lb. 
 
 LOTTERY. 
 
 1. What is. Where a pecuniary considera- 
 tion is paid, and it is to be determined by lot or 
 chance, according to some scheme held out 
 to the public, what and how much he who pays 
 the money is to have for it, that is a lottery, and 
 within the prohibition of the statute. Ct. App., 
 1874, Hull V. Ruggles, 56 N. Y. (11 Sick.) 424 ; 
 Aff'g 65 Barb. 432. 
 
 2. The sale of wliat are commonly known 
 as " prize packages " of candy, some of which 
 contain tickets entitling the purchaser to an 
 article of silverware or other property in addi- 
 tion to the package, such sale being made with 
 intent to obtain more than the value of the 
 packages, constitutes a lottery, and a sale of a 
 quantity of such packages with the silverware, 
 packed for the purposes of sale as above, is 
 a sale of a lottery, and void under the statute. lb. 
 
 3. Gift concert. A concert enterprise got 
 up for the purpose of 'raising funds for charit- 
 able uses, each ticket to which by its express 
 terms entitles the bearer to admission to the 
 concert and to whatever gift may be awarded to 
 its number," is a lottery within the prohibition 
 of 1 R. S. 664 (1 Edm. Stats. 617). N.Y. Supr. Ct., 
 Sp. T., 1872, Negley v. Dmlin, 12 Abb. N. S. 210. 
 
 4. Such lottery being illegal, every contract in 
 furtherance thereof is void, and no action wiU 
 lie against a person employed to sell tickets, in 
 favor of the managers, to recover moneys re- 
 ceived by him therefor. lb. 
 
 MAKER. 
 See Bills and notes. 
 
 MALICE. 
 
 See Cbiminal law ; evidence. 
 
 1. What is. Malice in the sense of the law 
 means wilfulness ; and the intentional doing of 
 a wrongful act with knowledge of its character, 
 and without cause or excuse, is malicious. Sup. 
 
444 
 
 MALICIOUS PROSECUTION— MANDAMUS. 
 
 Ct, 1872, Rounds v. Del, Lack. Sr W. R. R. Co., 3 
 Hun, 329. 
 
 MALICIOUS PROSECUTION. 
 
 1. When action lies. In order to sustain 
 an action for malicious prosecution, on account 
 of an arrest on a criminal charge, tlie plaintiff 
 must prore both malice and want of probable 
 cause. Proof of either one alone is not suflBcienb. 
 N. Y. Supr. Ct, 1875, Wilson v. King, 39 N. Y. 
 Supr. (7 J. & Sp.) 384. S. P. Richardson v. Virtue, 
 2 Hun, 208. 
 
 2. An arrest by an officer without a warrant is 
 not sufficient ground for sustaining the action, if 
 he had reasonable grounds for believing that a 
 felony had been committed by the person ar- 
 rested, and acted in good faith and without eril 
 design. lb. 
 
 3 Bona fide acts of a party, on advice given 
 by counsel after a full and fair statement of the 
 facts, is evidence of probable cause, however 
 erroneous the advice may be. Sup. Ct., 1874, 
 Richardson v. Virtue, 2 Hun, 208. 
 
 4. Causing to be indicted. An action for 
 malicious prosecution will lie against one who 
 falsely and maliciously accuses another of an 
 act, and causes him to be indicted therefor as for 
 a crime, although it did not constitute any crim- 
 inal offence, whether he knew that it did not, or 
 supposed and believed that it did constitute the 
 crime charged. Sup. Ct., 1872, Dennis v. Ryan, 
 5 Lans. 350 ; S. C, 63 Barb. 148. 
 
 6. The gravamen of the charge, in an action 
 for malicious prosecution, is that the plaintiff 
 has been improperly made the subject of legal 
 process to his damage. It is not material in 
 what form he was prosecuted, or whether by 
 process that was regular and sufficient, or be- 
 fore a court having jurisdiction, but there must 
 have been legal process of some kind. A com- 
 plaint made to a magistrate, which is followed 
 merely by a note to the accused requesting him 
 to call and explain the charge, although it may 
 be maliciously made, is not ground for such an 
 action. N. Y. Supr. Ct., Sp. T., 1873, Newfield v. 
 Copperman, 47 How. 87 ; S. C, 16 Abb. N. S. 
 360. 
 
 6. Grood faith. In an action for malicious 
 prosecution, evidence tending to show that the 
 person who informed the defendant that the 
 malicious injury to his property for which the 
 plaintiff was arrested, was committed by the 
 plaintiff, had, before the proceedings for the ar- 
 rest were commenced, retracted such statement 
 and acknowledged that he did it himself, and 
 offered to settle it, raises the question whether 
 after the last information received the defend- 
 ant commenced the proceedings in good.faith or 
 not, which should be decided by the jury, and a 
 non-suit is improper. Sup. Ct., Foote v.Milbier, 
 46 How. 38. 
 
 7. Want of probable cause. In order to 
 entitle a plaintiff in an action for malicious 
 prosecution to recover, the evidence should be 
 such as to satisfy any reasonable mind not only 
 that the defendant was actuated by malice, but 
 that he had no ground for the proceeding other 
 than his desire to injure the plaintiff. N. Y. 
 Supr. Ct., 1873, Goodman v. Stroheim, 36 N. Y. 
 Supr. (4 J. &Sp.) 216. 
 
 8. If circumstances of suspicion existed which 
 might have been readily removed by proper in- 
 quiry, and no inquiry at all, or insufficient in- 
 quiry, was made, the question of probable cause 
 may properly be submitted to the jury ; al- 
 
 though, whether or not there was probable 
 cause is, ordinarily, a question for the court. lb. 
 9- Where a party sought to be charged for a 
 malicious prosecution, was the prosecutor in 
 fact, a mere belief in the guilt of the plaintiff, 
 without reasonable grounds for it, will not af- 
 ford a justification ; but where he was not the 
 prosecutor in fact, and is sought to be ' made so 
 only by construction, for having given false in- 
 formation which led to the Subsequent arrest, 
 the motive is material, and if he acted in good 
 faith it is a defence to the action. Ct. App., 
 1874, Farnam v. Feeley, 56 ST. Y. (11 Sick.) 451. 
 
 10. Although a person making a criminal ac- 
 cusation will be justified in acting upon appear- 
 ances, if the apparent facts are such that a dis- 
 creet and prudent man would be led to the be- 
 lief that a crime had been committed by the 
 person charged, yet, he cannot be allowed to 
 put a false and unreasonable construction on 
 the conduct of another, and then justify him- 
 self for causing an arrest by claiming that he 
 acted upon appearances. Ct. App., 1873, Carl v. 
 Ayers, 53 N. Y. (8 Sick.) 14. 
 
 11. In an action for malicious prosecution, the 
 evidence on the part of the plaintiff tended to 
 show that while upon a ferry boat, his attention 
 was attracted to defendant's child by her severe 
 coughing, and he went to where defendant and 
 his wife were sitting facing each other, to in- 
 form him of a remedy, but being unable to ap- 
 proach him in front, he went behind him and 
 touched his shoulder, saying he wished to speak 
 with him. Being answered roughly, he started 
 to leave, but turned back and told defendant 
 that he intended to speak about his child's sick- 
 ness. Defendant again replied with -great in- 
 civility, and soon after caused him to be ar- 
 rested for an attempt to steal a diamond pin 
 which defendant wore upon his bosom ; — Held, 
 that the evidence disclosed a want of probable 
 cause for the arrest, and it was error to non-suit 
 the plaintiff. lb. 
 
 MANDAMUS. 
 
 I. In what casus lies 444 
 
 n. Peacticb 449 
 
 I. In what cases lies. 
 
 1. In general. A mandamus will not be al- 
 lowed in every case where a person is injured 
 by the improper acts of public officers ; but the 
 court should consider whether the claimant's 
 right is clear ; whether he has not a legal rem- 
 edy by action for damages ; and whether the 
 officers complained of are not clothed by law 
 with some discretion in respect to the subject. 
 Sup. Ct. Chambers, 1872, People ex rel. Dietz v. 
 Easton, 13 Abb. N. S. 159. 
 
 2. Clear legal right. The remedy is one of 
 exceptional character, and appropriate only to 
 that class of cases where a clear legal right may 
 be made to appear, without any other adequate 
 legal means to redress and maintain it. Sup. 
 Ct., 1874, People ex rel. Bagley v. Green, 1 Hun, 1. 
 
 3. Where the fact upon which the right may 
 depend is controverted, it must be tried and de- 
 termined before a peremptory mandamus can 
 be issued, and that determination is to be made 
 not upon conflicting affidavits, but upon an is- 
 sue framed on return to the alternative writ, to 
 be tried by a jury according to the course of 
 the common law. lb. 
 
MANDAMUS. 
 
 445 
 
 4 Where the affidavits, upon which an ap- 
 plication for a mandamus to compel a city 
 comptroller to pay a claim out of specific funds 
 is founded, state only on information and belief 
 that such funds are in the hands of the respon- 
 dent, and he expressly denies that such funds 
 applicable to the payment of the claim are in 
 his hands, the proof is not sufficient to entitle 
 the party to the writ. lb. 
 
 6. Although demands against corporate offi- 
 cers or corporations themselves may, under 
 certain circumstances be enforced by mandamus, 
 where an action for damages would also he in 
 favor of the claimants, they cannot be where an 
 action for the recovery of money claimed to be 
 due and owing can be maintained. lb. 
 
 6. A writ of mandamus should not be issued 
 unless the relator's right to it is unquestionable. 
 It should not therefore be issued to compel ac- 
 tion under an act of the legislature the consti- 
 tutionality of which is even doubtful. Sup. Ct., 
 Sp. T., 1871, People ex rel. Sherrill v. Canal 
 Board, i Lans. 272. 
 
 7. A peremptory mandamus requiring the 
 board of apportionment of the city and county 
 of New York to issue bonds, under ch. 583, 
 Laws of 1871, to raise a fund to pay the claim 
 of the relator, will not be granted, so long as 
 the existence of a valid debt owing to the rela- 
 tor, which may lawfully be paid out of the pro- 
 ceeds of such bonds, is disputed and has not 
 been established according to law. Sup. Ct., 
 1874, People ex rel. Tenth Nat. Bank ofN. Y. v. 
 Board of Apportionment of the City and County of 
 New York, 3 Hun, 11. 
 
 8. Disputed matters of fact upon proceed- 
 ings by mandamus cannot be determined on the 
 motion for the writ, but issues must be formed 
 to be tried by a jury, or, where a long accoimt 
 is involved, by a referee. lb. 
 
 9. Where the right of the acting incumbent 
 to an office depends upon the construction of a 
 statute, framed in such ambiguons language as 
 to render its interpretation difficult, the title to 
 the office should not be determined in a pro- 
 ceeding by mandamus, instituted by the party 
 out of possession, to compel payment to him of 
 the salary, to which proceeding the person in 
 possession is not a party. Ct. App., 1873, Peo- 
 ple ex rel. Dolan v. Lane, 55 N. Y. (10 Sick.) 217. 
 
 10. Asking too much. An application for 
 a mandamus should be denied if the relator asks 
 for more than he is entitled to. Sup. Ct., 
 1872, People ex rel. Byrnes v. Green, 64 Barb. 
 162. S. P., People ex rel. Ketteltas v. Cady, 2 
 Hun, 224. 
 
 11. Who may apply for. Every citizen of 
 a county has a sufficient interest in the publica- 
 tion of the session laws of the State to entitle 
 him to be relator, in a mandamus for such publi- 
 cation to the county board of supervisors. 
 Ct. App., 1874, People ex rel. Waller v. Super- 
 visors of Sullivan Co., 56 N. Y. (11 Sick.) 249. 
 
 12. Under a provision made by statute for 
 estimating and assessing damages done by the 
 change of grade of a street, or the closing of a 
 public highway, any several owner of property 
 affected thereby has a separate pecuniary in- 
 terest, and can apply for and obtain a writ of 
 mandamus to compel the board of assessors to 
 act. N . Y. C. P., 1875, People ex rel. Ward v. 
 Asten, 49 How. 405. 
 
 13. A mandamus will not be granted on appli- 
 cation of one who, after being tried and con- 
 victed of a felony, has escaped and remains at 
 large, to compel the signing of a proposed bill of 
 exceptions. While so at large he can take no 
 
 action before the court. Ct. App., 1874, People 
 V. Genet, 59 N. Y. (14 Sick.) 80 ; Aff'g S. C, 
 1 Hun, 292. 
 
 14. Where a statute confers certain powers 
 upon three commissioners, providing for the sup- 
 ply of any vacancies, a mandamus will not issue 
 at the suit of two of them, the office of the 
 other being vacant, to compel payment to them 
 of moneys raised for the purposes of their ap- 
 pointment. Ct. App., 1871, People ex rel. Henry v. 
 Nostrand, 46 N. Y. (1 Sick.) 375. 
 
 15. A majority may perform the duties of the 
 appointment after all have met and deliberated, 
 but two cannot do this where the office of the 
 third is vacant. lb. 
 
 16. To church. A mandamus will not lie to 
 reinstate a member of a church who has been 
 disciplined, convicted of moral delinquency and 
 expelled, in accordance with its rules. Ct. App., 
 1873, People ex rel. Dilcher v. Ger. U. E. St. 
 Stephen's Church of Buffalo, 53 N. Y. (8 Sick.) 
 103;Rev'gS. C, 6Lans. 172. 
 
 17. Neither will the writ lie to restore such 
 expelled member to his rights as a corporator of 
 the religious corporation connected with such 
 church, of which under its by-laws such expul- 
 sion deprives him ; because he has an adequate 
 remedy at law by action against the persons 
 guilty of the wrong. lb. 
 
 18. To commissioner of public vrorks. 
 A mandamus will not lie to compel a com- 
 missioner of public works to apply for the ap- 
 pointment of commissioners to appraise the 
 compensation to be paid for property to be 
 taken for a public use, in pursuance of an ar- 
 rangement made by the predecessor of such offi- 
 cer without competent authority, and never rati- 
 fied. Sup. Cl., Sp. T., 1874, People ex rel. Maho- 
 pac Manf Co. v. Van Nort, 15 Abb. N. S. 242. 
 
 19. To corporation. Where a hospital cor- 
 poration has for a number of years continuously 
 neglected to hold any election of officers, a 
 mandamus will be issued on relation of a cor- 
 porator to compel an election, without proof of 
 a special request. Sup. Ct., Sp. T., 1871, People 
 ex rel. Walker v. Albany Hospital, 11 Abb. N. S. 
 4 ; S. C, 61 Barb. 397. 
 
 20. The fact that the proper officers have ap 
 pointed an election is not sufficient cause for re- 
 fusing the writ, where it appears that they have 
 also assumed, by amending the by-laws, to fix a 
 different time for the election and different 
 qualifications for voters than were prescribed by 
 the original by-laws. lb. 
 
 21. A mandamus may properly be issued to 
 restore a person to membership in a corporation 
 from which he has been improperly expelled. 
 Sup. Ct., 1875, People ex rel. Doyle v. N. Y. 
 Benevolent So. of Operative Masons, 3 Hun, 861. 
 S. P. People ex rel. Godwin v. American Institute, 
 44 How. 468. 
 
 22. To auditor of Ne'w York city. A 
 mandamus will lie to compel the auditor of the 
 city and county of New York to audit and 
 allow a proper county charge, which has been 
 audited by the board of supervisors. N. Y. C. P., 
 People ex rel. Ford v. Earle, 47 How. 368. 
 
 23. What is a proper county charge is to be 
 determined by the statutes, but the board of 
 supervisors, acting judicially can fix the amount, 
 and their decision upon that question is con- 
 clusive. Whether a claim allowed by them is 
 a proper county charge depends on the facts, 
 and they may be inquired into upo/i issues 
 raised on an alternative mandamus to compel 
 payment. Sup. Ct., Sp. T., 1874, People ex rel. 
 Tracy v. Green, 47 How. 382. 
 
446 
 
 MANDAMUS. 
 
 24. Where, under color of a previous lawful 
 designation and selection of his paper for that 
 purpose, a newspaper proprietor has continued 
 to publish the proceedings of a city council and 
 legal notices for the city in such paper, after the 
 enactment of a new law on the subject, direct- 
 ing the selection of newspapers for the same 
 purpose, and prohibiting the payment of any 
 money for any such advertising thereafter done 
 except to such newspapers, under which law no 
 action has been taken, and no notice given of a 
 revocation of the original appointment, a manda- 
 mus will lie to compel the auditing of the ac- 
 count for such services. Sup. Ct., Sp. T., 1872, 
 People ex rel. Pomeroy v. Green, 44 How. 201 ; 
 S. C., 63 Barb. 390. 
 
 25. To auditor and comptroller. A man- 
 damus will not lie to compel the auditor and 
 comptroller of New York city to audit and draw 
 a warrant for a claim arising out of an employ- 
 ment by the trustees of the college of New 
 York ; the president and clerk of the board of 
 education being the only officers having power 
 to draw moneys from the city treasury for such 
 purpose. Sup. Ct., 1874, People ex rel. Kedian v. 
 Neilsm, 48 How. 454 ; S. C, 3 Hun, 214. 
 
 26. Where a person has performed services for 
 the county of New York, undei- an employment 
 by the proper authorities, and his claim has 
 been properly adjusted, audited and allowed by 
 the board of supervisors, and there is an unpaid 
 balance in the treasury appropriated for such 
 expenses, it is not competent for the auditor to 
 refuse to audit the vouchers, or for the comp- 
 troller to approve it and pay the claim, but they 
 may be compelled by mandamus to do so. Sup. 
 Ct., Sp. T., 1?!1Z, People ex rel. Martin v. Earle.il 
 How. 458. S. P., People ex rel Duffin v. Earl, 46 
 How. 308. 
 
 27. It is no answer for the respondents in such 
 case to return that the relator's name is not on 
 the pay-rolls of the department in which his ser- 
 vices were rendered for the time he claims pay. 
 lb. 
 
 28. To board of apportionment. The du- 
 ties of the board of apportionment and audit of the 
 city of New York, under ch. 9, as amended by ch. 
 375, Laws of 1872, are judicial in their nature, 
 and a claimant proceeding under the statute and 
 invoking in his behalf the exercise of the power 
 conferred upon the board, is bound to submit to 
 its jurisdiction as defined by the statute, and 
 cannot demand that it shall pass upon his claim 
 without also passing upon his right to payment. 
 Where, therefore, a claimant sought to limit the 
 board to a mere certification of his claim as ad- 
 justed by the prior action of the finance depart- 
 ment of the city, — Held, that a mandamus against 
 it was properly refused. Ct. App., 1873, People 
 ex rel. Brown v. Board of Apportionment and Audit, 
 52 N. Y. (7 Sick.) 224. 
 
 29. To comptroller. The scheme provided 
 in the above acts of 1872, for auditing and ad- 
 justing claims such as are therein specified, super- 
 seded that contained in ch. 137, Laws of 1870, 
 and pro tanto repealed the latter act. Held, 
 therefore, that where an account of the character 
 specified had been audited and allowed under the 
 latter act by the auditor of accounts, but not 
 paid nor audited by the board established under 
 the acts of 1872, mandamus would not lie 
 against the comptroller to compel him to pay or 
 provide for the payment of it. lb. 
 
 30. A mandamus will lie to compel the comp- 
 troller of New York city to pay the salary of the 
 crier of the court of Common Pleas, as fixed for 
 the first time by resolution of the board of super- 
 
 visors in May, 1870, although it was thereby 
 fixed at a larger sum than he had been before 
 receiving; that not being an increase of the 
 salary within the prohibition of eh. 875, Laws 
 1869, or ch. 382, Laws 1870. N. Y. .Supr. Ct., 
 Sp. T., People ex rel. Davin v. Havemeyer, 47 
 How. .59. 
 
 31. A mandamus will lie to compel the comp- 
 troller of the city and county of New York to 
 pay the salary of the deputy clerk of the Special 
 Sessions, notwithstanding he may have accepted 
 the office of member of assembly and acted 
 therein, the two offices not being incompatible. 
 N. Y. C. P., Sp. T., 1873, People ex rel. Ryan v. 
 G7-een, 46 How. 169; AfE'd, S. C, 58 N. Y. (13 
 Sick.) 295. ■. 
 
 32. The comptroller being authorized by law 
 (ch. 583, Laws 1871), to raise and pay to the 
 commissioners of the county court house a cer- 
 tain sum to be expended under their direction 
 for the completion of the court house, a manda- 
 mus may properly be issued to compel the com- 
 missioners to make a requisition for the pay- 
 ment of, and the comptroller to pay, an out- 
 standing claim for work and materials pre- 
 viously furnished for the building, which has 
 been duly audited and allowed. Sup. Ct., 
 Sp. T., 1871, People ex rel. Cornell v. Norton, 12 
 Abb. N. S. 47 
 
 33. A mandamus will lie to compel the comp- 
 troller of New York city to pay a proper claim 
 against the county of New York which has been 
 audited by the county board of supervisors, but 
 where he refuses to pay part of such claim, 
 without alleging fraud or mistake as a reason 
 therefor, to obviate any technical difficulty in 
 his way the auditor may also be directed by 
 mandamus to audit the balance. Sup. Ct., Sp. 
 T., 1873, People ex rel. Hawley v. Earle, 46 How. 
 267. 
 
 34. A mandamus will not lie to compel the 
 comptroller of New York city to pay a salary 
 earned as " counsel for the commissioners of 
 taxes," &c., when it appears that all the money 
 appropriated to that department was specifically 
 appropriated to the payment of other officers, 
 &o., so that there is no money in his hands out 
 of which he can pay such salary. N. Y. Supr. 
 Ct., Sp. T., 1874, People ex rel. Miller v. Green, 
 46 How. 367. 
 
 36. In such a case, a mandamus would lie to 
 compel the auditor to adjust the claim, so that 
 its payment could be afterward provided for. 
 lb. 
 
 36. Under the provisions of sec. 6, ch. 190, 
 Laws of 1870, " in relation to the supervisors of 
 " New York," prohibiting the payment of money 
 froin the treasury, except on vouchers for the 
 expenditure thereof, "examined and allowed 
 by the auditor and approved by the comptroller,' 
 mandamus will not lie to compel the comptroller 
 to issue his warrant for the payment of an ac- 
 count although audited and allowed by the board 
 of supervisors, until the auditor has examined 
 and allowed the vouchers. Ct. App., 1874, 
 People ex rel. Brown v. Green, 56 N. Y. (11 Sick.) 
 476. 
 
 37. To Mayor of New York city. A 
 peremptory mandamus will be issued to compel 
 the mayor of the city of New York to countersign 
 a warrant drawn by the city comptroller, pursu- 
 ant to sec. 7, ch. 702, Laws ef 1872, to pay the 
 city's share of the expense of improving Fourth 
 Avenue. Sup. Ct., Sp. T., 1874, People ex id. N. 
 Y. and Harlem E. R. Co. v. Havemeyer, 47 How. 
 
 494. 
 
 Where upon application therefor, no dis- 
 
MANDAMUS. 
 
 447 
 
 puted question of fact, or question of fraud or 
 collusion arises, requiring a jury trial, no alter- 
 native mandamus ia necessary, but the court can 
 dispose of the case as involving questions of law 
 only. lb. 
 
 39. If, after city authorities liave treated an 
 assessment as valid, and have authorized, ac- 
 cording to law, the levying of a tax to meet it, 
 and the money has been collected, and its pay- 
 ment to the officers entitled to receive it has 
 been ordered by the legislative branch of the 
 city government, and the comptroller has signed 
 the warrant therefor, the mayor refuses to sign 
 such warrant, on the ground of tlie invalidity of 
 the assessment, a peremptory mandamus may 
 properly issue to compel such payment. Sup. 
 Ct, 1875, People ex ret. Brooklyn Park Commis- 
 sioners V. City of Brooklyn, 3 Hun, 596; Afi'd, S. 
 C, 60 N. Y. (15 Sick.) 642. 
 
 40. To fire department. There is nothing 
 in any act relating generally to the fire depart- 
 ment of New York city, since it became a 
 municipal organization, authorizing it to pay 
 out the moneys appropriated to it,, or to draw 
 upon the same directly in bulk for the purpose 
 of paying its expenses or any part of them ; and 
 a mandamus will not lie to compel the comp- 
 
 HroUer to pay over to the fire commissioners the 
 funds appropriated to the department. Sup. 
 Ct., 1872, Matter of Fire Commissioners, v. Green, 
 49 How. 1. 
 
 41. To treasurer. Under ch. 407, Laws of 
 1856, the expenses of the commissioners of 
 records of the city and county of New York are 
 required to be paid upon the certificate of the 
 commissioners ; and where it appears that an 
 appropriation has been made for such expenses 
 by the county board, and that a sufficient 
 amount remains in the treasury to satisfy a 
 claim under such a certificate, mandamus wiU 
 Ue to the county treasurer to compel its pay- 
 ment, although it may not have been audited 
 by the financial officer of the city or county. 
 Ct. App., 1873, People ex rd. Kingsland v. Palmer, 
 52 N. Y. (7 Sick.) 83. 
 
 42. To county board of supervisors. 
 Where the supervisors of a county refuse, on 
 undisputed facts, to audit a claim against the 
 county on the ground that it is illegal, the court, 
 if it shall determine the claim to be a legal 
 charge, may compel them by mandamus to exer- 
 cise their discretion upon the facts and the 
 amount to be allowed, and to admit the amount 
 so allowed as a county charge. Com. App., 
 1872, People ex rel. Otsego County Bank v. Super- 
 visors ^Otsego County, 61 N. Y. (6 Sick.) 401. 
 
 43. Where a county board of supervisors has 
 once considered a claim, admitted it as a legal 
 charge against the county, and in good faith 
 exercised its judgment and discretion upon the 
 amount which should be allowed, mandamus 
 will not issue to compel it to audit it anew at a 
 greater amount ; but, where the account consists 
 of a number of items or classes of items, the 
 entire rejection of one of such items or classes 
 of items which is a legal charge against the 
 county, will be good ground for mandamus to 
 compel the audit thereof, although the account 
 as a whole is not rejected. Ct. App:, 1871, 
 People ex ret. Johnson v. Board of Supervisors of 
 Delaware Co., 45 N. Y. (6 Hand,) 196 ; AH'g S. 
 C, 9 Abb. N. S. 408. 
 
 44. Mandamus should not, in a case where the 
 amount of the claim is not fixed by statute, 
 issue to compel a county board to audit it at any 
 certain amount. They should be commanded 
 to allow the account at some rate, to be arrived 
 
 at in the exercise of proper judgment upon the 
 facts and circumstances properly shown therein ; 
 but further than this the court cannot go. lb. 
 
 45. Where the bonds of a county have been 
 issued and delivered in re-payment of illegal 
 taxes collected, a mandamus will lie to the county 
 board of supervisors to compel the payment of 
 interest thereon. Sup. Ct., 1875, People ex rel. 
 Mott V. Board of Sup's of Greene Co., 5 Hun, 660. 
 
 46. County canvassers 'cannot bf required 
 by mandamus to reject returns or statements 
 made to them by district inspectors of election, 
 which are apparently regular, on the ground of 
 fraud, they having no power to go behind such 
 returns ; but the parties aggrieved must seek 
 their remedy by action. Sup. Ct,, Sp. T., 1871, 
 FeWs Case 11 Abb. N. S. 208. 
 
 47. To county treasurer. A mandamus 
 will lie to compel a county treasurer to pay over 
 a sum of money levied, collected and received 
 by him for the salary of the county judge, 
 although his salary was fixed without legal 
 authority. Sup. Ct., 1871, Healey v. Dudley, 5 
 Lans. 115. 
 
 48. It seems that if the money was not in 
 his hands, or the resolution or order under which 
 it was raised for that purpose had been previous- 
 ly annulled, the writ would not lie. lb. 
 
 49. To district inspectors. A teacher in 
 a common school, claiming under a regular ap- 
 pointment, has an adequate remedy at law to 
 collect her salary, and therefore a mandamus 
 will not be granted to compel the inspectors of 
 the district to examine and audit such salary. 
 Sup. Ct., Sp. T., 1873, People ex rel. Harnett v. 
 Inspectors of Common Schools, 44 How. 322. 
 
 60. To judge. A mandamus will not be issued 
 to compel a judge to settle a bill of exceptions 
 in a cause tried before him, in a particular man- 
 ner, or by inserting any particular thing claimed 
 to have occurred at the trial, when there is a 
 dispute in relation thereto, but it his province to 
 determine what did occur. Sup. Ct, 1874, Tweed 
 V. Davis, 47 How. 162 ; S. C, 1 Hun, 252. 
 
 51. To municipal corporation. A man- 
 damus is not the only remedy against a city or 
 village corporation, which neglects or refuses to 
 put the proper machinery in operation to raise 
 funds to pay a debt when due, or to put the 
 claim in proper shape for liquidation and pay- 
 ment within a proper time, but the creditor can 
 maintain an action to compel payment. Sup. 
 Ct., 1872, Buck V. City ofLockport, 43 How. 361 ; 
 S. C, 6 Lans. 251. 
 
 52. The principle applicable, in such cases, to 
 counties, has never been extended to village or 
 city corporations existing under special charters, 
 any further than to exempt them from actions 
 until they refuse to exercise their powers. lb. 
 
 68. A mandamus may properly be issued to 
 compel an officer of a municipal corporation to 
 sign a warrant for the payment of public moneys 
 already raised by taxation, to parties entitled, 
 in accordance with an act of the legislature on 
 the subject, where it appears that such act has 
 been complied with ; whether an action to 
 enforce payment by the corporation could be 
 maintained or not. Sup. Ct., Sp. T., 1874, Peo- 
 ple ex rel. N. Y. ^ S. It. R. Co. v. Havemeyer, 3 
 Hun, 97. 
 
 54. To police commissioners. A man- 
 damus will not lie to compel a board of police 
 commissioners to re-instate an officer, whom 
 they have discharged because disqualified under 
 rules lawfully adopted by them, after examining 
 the charge on due notice to and appearance by 
 him ; such a trial and discharge being a judicial 
 
448 
 
 MANDAMUS. 
 
 act Sup. Gt., Sp. T., 1871, People ex rel. Grace v. 
 Board of Police Commissioners of Troy, 12 Abb. 
 N. S. 181 ; Aff'd, S. C, 43 How. 386. 
 
 56. The commissioners have jurisdiction to 
 determine whether an officer is disqualified 
 under rules adopted by them, even though such 
 rules were adopted after his appointment ; and 
 if they act unlawfully, the remedy is not by 
 mandamus but by common-law certiorari. S. C, 43 
 How. 386. 
 
 56. To tleglster. A mandamus will lie to 
 compel a register to receive and file a satisfac- 
 tion piece, executed by one of two co-trustees 
 who is resident and acting, the other being absent 
 abroad, and discharge the mortgage. N. Y. 
 Supr. Ct, Sp. T., 1873, People ex rel. Adams v. 
 Sigel, 46 How. 151. 
 
 57. To Secretary of State. A mandamus 
 will not lie to compel the Secretary of State to 
 file a certificate of incorporation, under the act 
 for the incorporation of benevolent, &o., societies 
 (ch. 319, Laws 1848), although approved by a 
 justice of the Supreme Co.urt, if its objects as 
 stated in the certificate are not within the pur- 
 view of that act. Sup. Ct., Sp. T., 1871, People 
 ex rel. Blossom v. Nelson, 10 Abb. N. S. 200 ; 
 S. C, 60 Barb. 169 ; Eev'd, 11 Abb. N. S. 106, 
 but Aff'd by Ct. App., 46 N. Y. (1 Sick.) 477. 
 
 58. To late supervisor. A writ of mandamus 
 will not lie to compel one whose term of office as 
 supervisor has expired, and who has been suc- 
 ceeded by another person, to meet with and 
 account to the auditing board of his town for 
 moneys which came into his hands as such 
 supervisor, because there is another adequate 
 legal remedy by suit upon his bond, or by action 
 in the name of the town under ch. 534, Laws 1866, 
 to compel him to account, and for the recovery 
 of money or property not accounted for. Sup. 
 Ct., Sp. T., 1872, People ex rel. Johnson v. Martin, 
 43 How. 52 ; S. C, 62 Barb. 570. 
 
 59. The writ of mandamus is not one of the 
 remedies given by that statute. lb. 
 
 60. To town assessors. Where the right 
 of a town to issue its bonds is made to depend 
 upon the written consent, first obtained, of tax- 
 payers owning more than one-half of the property 
 assessed in the town, which consent is required 
 to be proved by the affidavit of the town asses- 
 sors, mandamus may issue to compel the asses- 
 sors to proceed and examine the evidence and 
 determine the matter, and if, by their determin- 
 ation, such consent shall appear, to make the 
 required affidavit ; but they cannot be required 
 to determine in any particular manner, nor to 
 make such affidavit absolutely, however clear 
 may appear to the court the evidence of consent. 
 Ct. App., 1871, Howland v. Eldridge, 43 N. Y. 
 (4 Hand,) 467. 
 
 61. A mandamus will not lie to compel town 
 assessors to verify their roll in form as prescribed 
 by statute, to the effect, namely, that they have 
 estimated the value of the real estate " at such 
 sums as a majority of them have decided to be 
 the full and true value thereof and at which they 
 would apprise the same in payment of a just 
 debt due from a solvent debtor," when it appears 
 that, in fact, their estimates were made upon 
 the basis of a certain percentage of the value. 
 Ct. App., 1873, People ex rel. Sups, of Westches- 
 ter Co. V. Fowler, 55 N. Y. (10 Sick.) 252. 
 
 62. Where a board of revision and correction 
 of assessments sends back an assessment list to 
 the board of assessors, directing them to strike 
 out certain damages assessed by them, on the 
 erroneous ground that they had no power to 
 assess the same, the party aggrieved thereby 
 
 having no remedy by action at law, is entitled 
 to a mandamus requiring the board of assessors 
 to return such list unchanged to the board of 
 revision and the latter board to confirm it. Sup. 
 Ct., 1875, People ex rel. Doyle v. Green, 3 Hun, 
 755. 
 
 63. To to-wn auditors. The writ may 
 properly be issued to compel town auditors to 
 audit the bill of an attorney appointed by 
 vote of a regular town meeting to prosecute suits 
 for the town, under an express agreement that 
 he shall be paid his reasonable expenses. Sup. 
 Ct., 1875, People ex rel. Wells v. Board of Audit 
 of the Town of Hempstead, 4 Hun, 94. 
 
 64. Such writ cannot be enforced against the 
 members of the board, if issued after its adjourn- 
 ment, but it may issue to be enforced at the. 
 next lawful meeting of the board. lb. 
 
 65. An auditing board cannot properly be com- 
 pelled by mandamus to audit and allow a claim 
 at a sum fixed by the court ; except in the case 
 of a salary or claim fixed by statute. Sup. Ct., 
 1872, People ex rel. Byrnes v. Green, 64 Barb. 162. 
 S. P., People ex rel. Curry v. Green, id. 493. 
 
 66. To collector of taxes. A tax collector 
 who has collected a tax in obedience to his war- 
 rant, cannot refuse to pay it over to the per- 
 son entitled bylaw, on the ground that he col- 
 lected it under a void authority ; but such pay- 
 ment may be enforced by mandamus. Allen, J., 
 dissents. Ct. App., 1873, People ex rel. Martin 
 V. Brown, 66 N. Y. (10 Sick.) 180. 
 
 67. Where a tax warrant required the collector 
 pursuant to statute, to pay over certain moneys 
 to the railroad commissioners of the town, — Held, 
 that it was no ground for refusing the writ that 
 the collector had by his own voluntary and wil- 
 ful act, in paying the money instead to the 
 supervisor of the town, subjected himself to loss 
 or rendered the performance of the duty enjoined 
 upon him difficult or inconvenient. lb. 
 
 68. To commissioners of high-ways. A 
 peremptory mandamus may properly be awarded 
 to compel commissioners of highways, who have 
 duly performed everything necessary to lay out 
 a highway, except to execute and file the order 
 or certificate of their decision, and cause the 
 relator's damages assessed, to complete the pro- 
 ceedings, by making, signing and filing such 
 order, and causing the damages to be assessed 
 and the road opened and worked. Sup. Ct., 1874, 
 People ex rel. Nelson v. Jefferds, 2 Hun, 149. 
 
 69. The determination to lay out a highway is 
 a judicial act, but the making of the necessary 
 record thereof is ministerial merely, and may be 
 compelled by mandamus. lb. 
 
 70. To town supervisors. The proper 
 remedy to enforce a contract made by town au- 
 ditors under a law authorizing them to cause 
 the streets of their town to be lighted with gas, 
 and to contract therefor, which made it the 
 duty of the town supervisor to lay before the 
 board of supervisors a statement of the amount 
 due, and directed that board to audit it, is by 
 mandamus to the town supervisor and to the 
 county board of supervisors, and not by action 
 against the town, if the contract is valid. Ct. 
 App., 1874, Richmond Co. Gas Light Co. v. Town 
 of Middletown, 59 N. Y. (14 Sick.) 228. 
 
 71. The remedj' of a person aggrieved by the 
 refusal of a town supervisor to present for allow- 
 ance to the county board a reassessment of 
 road damages made under the provisions of ch. 
 181, Laws of 1846, as amended by ch. 456, Laws 
 of 1847, is not by mandamus, but by an action at 
 law for damages. Com. App., 1874, Clark v. 
 Miller, 54 N. Y. (9 Sick.) 628. 
 
MANDAMUS. 
 
 449 
 
 72. A mandamus ■will not lie to compel a 
 board of supervisors to reduce an assessment 
 for rents reserved in a lease in fee, where such 
 assessment has been made in exact compliance 
 with the law of 1846 on that subject. Sup. Ct., 
 Sp. T., 1873, People ex rel. Youmans v. Board of 
 Swperoisors of Delaware Co., 47 How. 24. 
 
 73. Under ch. 436, Laws of 1870, one who 
 furnished a substitute jointly with a town in the 
 county of Suffolk, has a clear legal remedy by 
 action against the town, to recover his share of 
 tlie moneys received from the State for excess 
 of years' service by such substitute, and manda- 
 mus will not lie. Ct. App., 1871, People ex rel. 
 Perkins v. Hawkins, 46 K Y. (1 Sick.) 9. 
 
 II. Peacticb. 
 
 74. rorm of ■writ In proceedings by man- 
 damus to compel the payment of the salary of a 
 county ofiBcer, the alternative writ should aver 
 that the account of the relator has been audited 
 by the board of supervisors and, in the county 
 of New York, that the vouchers therefor have 
 been examined and approved by the auditor of 
 the finance department and the cornptroller. 
 Ct App., 1874, People ex rel. Ryan v. Green, 58 
 N.Y. (13 Sick.) 295. 
 
 75. If the writ be defective in this particular, 
 tliough objection be not taken in the return 
 thereto, it may be raised at any time before the 
 peremptory mandamus is awarded. lb. 
 
 76. An alternative writ of mandamus should 
 be a statement of the relator's title to the relief 
 demanded, and should contain no allegations ex- 
 cept such as are pertinent to that title and relief. 
 It stands as a declaration or complaint in the 
 action. Sup. Ct., 1871, People ex rel. Sunderlin 
 V. Ovenskire, 41 How. l64. 
 
 77. The further proceedings under the stat- 
 ute are precisely like those in an ordinary suit. 
 All tlie material allegations of the alternative 
 writs which are not traversed or denied, or suc- 
 cessfully avoided, are to be taken as admitted, 
 and if the return contains no sufiScient answer, 
 tlie relator is entitled to his peremptory writ, 
 lb. 
 
 78. When proceedings for a peremptory man- 
 damus are commenced by an order to show 
 cause containing the clause " or for other re- 
 lief," the court has power to grant the writ for 
 any relief to wliich the party is entitled, tliough 
 not the same as that specified in sucli order ; 
 and, where it directs the payment of moneys, the 
 precise amount need not be specified, but a di- 
 rection to pay over all moneys received of a 
 certain class is sufliciently definite. Ct. App., 
 1 871, People ex rel. Henry v. Nostrand, 46 N. Y. 
 (1 Sick.) 375. 
 
 79. While a railroad company has a discre- 
 tion as to the manner of performing the duty 
 imposed by the general railroad act, of restoring 
 highways across or along which its road is con- 
 structed, such discretion is not a judicial one 
 and cannot be so exercised by it as to result in a 
 practical non-performance of duty ; and if it 
 claims to have performed by the use of a mode 
 which proves ineffectual, and the aid of a 
 court of equity is invoked to compel, by man- 
 damus, the performance, the court has power, 
 and it is its duty, by the writ to point out to the 
 company in what it has failed, and direct it par- 
 ticularly what it must do so as not to fail again. 
 Ct. App., 1874, People ex rel. Qreen ' v. Dutchess 
 Sr Columbia R. R. Co., 58 N. Y. (13 Sick.) 152. 
 
 80. When a change of tlie track of a liighway 
 becomes necessary, the power to restore includes 
 
 29 
 
 the power to acquire by compulsory means the 
 requisite land ; so that a writ which directs 
 sucli a change is not open to the objection that 
 it commands an impossibility or an unlawful 
 act. lb. 
 
 81. A writ directing a change of the track of 
 a highway, for a short distance only, from one 
 side of the railroad to the other, so as to obviate 
 the necessity and avoid the danger of two cross- 
 ings, does not work a discontinuance of the 
 highway, but that for all practical purposes re- 
 mains the same, and the change is within the 
 power of the court to direct. lb. 
 
 82. Seal. The writ is one which must be 
 specially authorized by the court, and it must 
 be specially sealed ; and the service of a writ of 
 mandamus which is not sealed is a nullity, and 
 will not sustain proceedings for contempt for a 
 disobedience thereof. Sup. Ct., 1874, People ex 
 rel. Clapp v. Fisk, 1 Hun, 464. 
 
 83. Peremptory writ, when awarded. 
 Although it is provided by statute (2 R. S. 587, 
 sec. 67), that in case a verdict is found for the 
 person suing out an alternative writ of mandamus, 
 he shall recover damages and costs, and a per- 
 emptory writ shall be granted him without de- 
 lay, it was not the intent thereby to give a 
 peremptory writ, where- the record allows no 
 legal right, because of a mistake in the return 
 in matters of fact resulting in a verdict for the 
 relator. Ct. App., 1873, People ex rel. Dunkirk, 
 
 W. ^ P.R R. Co. V. Batchellor, 63 N. Y. (8 
 Sick.^ 128. 
 
 84. The defendant may at any time after the 
 return and before a peremptory mandamus is 
 awarded, object to a want of sufficient title in 
 the relator to tlie relief sought, or show any 
 other defect of substance. lb. 
 
 85. A peremptory mandamus to compel a city 
 comptroller to pay over money should not be 
 granted upon affidavits, when the right thereto 
 depends upon disputed facts, but issues of fact 
 sliould be joined and tried according to the 
 course of the common law. Sup. Ct., 1874, Peo- 
 ple ex rel. Tenth Nat. Bank v. Green, 3 Hun, 208. 
 
 86. The certificate of public officers that cer- 
 tain moneys had been advanced by the relator 
 for a public use, made more than a month after 
 the last payment, should not be received in 
 support of such a mandamus on appeal from 
 the order awarding it. lb. 
 
 87. An affidavit to obtain a writ of manda- 
 mus to compel the comptroller of the city of 
 New York, and the commissioners of the county 
 court house, to pay to the relator a claim for 
 work and materials for said court house, which 
 shows that the same had been duly certified, 
 verified, audited and allowed by the board of 
 supervisors and the county auditor, and posi- 
 tively asserts the correctness and justness of the 
 items, is not sufficiently answered by an affida- 
 vit alleging in general terms, on information and 
 belief, that the bill is grossly extravagant, to 
 justify the court in refusing the writ. Sup. Ct., 
 Sp. T., 1871, People ex rel. Cornell v. Norton, 12 
 Abb. N. S. 47. 
 
 88. General allegations in such affidavit, on 
 information and belief, to the effect tliat the 
 appropriation in the hands of the comptroller 
 applicable to the payments thereof had been 
 exhausted only by illegal payments, is suf- 
 ficiently negatived by the positive affidavit of 
 the comptroller to the contrary. lb. 
 
 89. The return to an alternative writ of man- 
 damus to compel a board of audit to audit and 
 allow a claim at its full amount should show 
 enough to enable the court to determine whether 
 
450 MANUFACTURING CORPORATIONS— MARINE COURT. 
 
 the reduction made by them in auditing such 
 claim, was made under tlie discretion conferred 
 upon them by law, or was an arbitrary reduc- 
 tion made in violation of the rights of the claim- 
 ant. If it does not do so, a further return may be 
 allowed, and on failure thereof, a peremptory 
 writ may issue. Sup. Ct., Sp. T., 1872, People 
 ex rel. Grant v. Board of Apportionment and Audit 
 ofN. Y., 43 How. 412. 
 
 90. Further return. Since bills of discovery 
 were abolished, it is an unknown practice for 
 the plaintiff to apply that the defendant make 
 further answer to the allegations of the com- 
 plaint ; and there is no reason for any difference 
 in that respect between an action commenced 
 by mandamus and an ordinary action. A re- 
 spondent ought not, therefore, to be required to 
 make a further return, especially, in a case where 
 he undertakes to se.tup new matter as a defense, 
 but fails to do so with sufficient certainty. Sup. 
 Ct., 1871, People ex rel. Sunderlin v. Ovenshire, 41 
 How. 164. 
 
 91. Demurrer to return. On demurrer to 
 the return to an alternative writ of mandamus, 
 it is not necessary to determine whether the re- 
 turn is sufficient if the writ itself is bad in sub- 
 stance ; as, in a case where better remedies are 
 given by action. Sup. Ct, Sp. T., 1872, People 
 ex rel. Johnson v. Martin, 43 How. 52 ; S. C, 62 
 Barb. 570. 
 
 92. The healing. The whole purpose of rule 
 55 of the Supreme Court, is to enable defend- 
 ants in mandamus to compel a hearing on the 
 return unless the plaintiff choose to demur to or 
 traverse the same ; and if the latter waive their 
 right to do either, and both parties proceed to 
 argument on the return, there is no irregularity 
 nor want of authority on the part of the court 
 to consider and dispose of the merits of the con- 
 troversy. Ct. App., 1874, People ex rel. Waller 
 V. Supervisors of Sullivan Co., 56 N. Y. (11 Sick.) 
 249. 
 
 93. On such a hearing, the ease is to be deter- 
 mined upon the alternative writ and the return ; 
 and the affidavits on which the former was grant- 
 ed are not to be considered. lb. 
 
 94. Although, when a mandamus is brought to 
 a hearing upon the return, without a demurrer 
 or plea, merely formal and technical defects in 
 the manner of pleading are to be disregarded, 
 yet, those which go to the actual merits of the 
 controversy cannot be. lb. ^», 
 
 95. Where, in a mandamus brought to compel 
 the county supervisors to designate the news- 
 papers for the publication of the session laws, 
 under a statute which required them to desig- 
 nate two newspapers of " opposite politics " and 
 " fairly representing the two principal political 
 parties into which the people of the county are 
 divided," the return stated only that defendants 
 had designated two newspapers which they be- 
 lieved to fairly represent the two political par- 
 ties of the county, without alleging that they 
 were of opposite politics,— BeW, bad in substance, 
 the two requirements mentioned not being exact 
 equivalents. lb. 
 
 96. On appeal from an order of the Special 
 Term refusing a mandamus, the General Term is 
 not restricted to the specific reason assigned for 
 such refusal, but may affirm the order if any 
 other legal reason for so doing is disclosed by 
 the papers. Sup. Ct., 1874, People ex rel. Bagley 
 V. Green, 1 Hun, 1, 
 
 97. Objection to ■writ. A variance between 
 the declaratory and the mandatory part of the 
 alternative writ is not fatal to an application for 
 a peremptory writ, it being amendable under 
 
 sec. 471 of the Code. N. Y. C. P., 1874, People 
 ex rel. Stochwfll v. Earh, 47 How. 370. 
 
 98. The question of fraud, when raised by the 
 return to a writ of mandamus, may be investi- 
 gated, but specific acts of fraud must be set up, 
 a general charge not being sufficient. lb. 
 
 99. A plea of " no apprdpriation " cannot prop- 
 erly be interposed by the county auditor of New 
 York county to a mandamus issued to compel him 
 to audit a claim ; but it should be reserved for 
 an application to compel payment thereof. lb. 
 
 100. A peremptory mandamus will not be set 
 aside for a variance from the alternative w^it, 
 where the general thing commanded is tlie same 
 in both, and is an act which the defendant is 
 legally obligated to do, and such variance is in 
 some unsubstantial matter of detail only, and to 
 the ease of him addressed. Ct. App., 1874, Peo- 
 ple ex rel. Green v. Dutchess ^ Columbia R. E. Co., 
 58 N. Y. (13 Sick.) 152. 
 
 MANUPACTUEING CORPORATIONS. 
 
 See CO£PORATIOI7S. 
 
 Also chs. 481, 535 and 657, Laws of 1S11 ■ ch. 426, 
 Laws of 1872 ; ch. 149, Laws of 1874. 
 
 MARINE COURT. 
 
 -See ch. 799, Laws of 1S11 ; eh. 629, Laws of 1812 ; 
 ch. 545, Laws of 18H. 
 
 1. Attendants. The provision of sec. 3, ch. 
 582, Laws of 1870, in respect to the appointment 
 of attendants for the Marine Court, was super- 
 seded and repealed by that of sec. 2, ch. 438, 
 Laws of 1873, authorizing the judges of that 
 court to appoint a limited number ; and when 
 action was taken by them under the latter stat- 
 ute, by the appointment of attendants, though of 
 only a part of the number authorized, the ser- 
 vice of the incumbents and their right to com- 
 pensation were thereby terminated. Ct. App., 
 1874, Holley v. Mayor, etc. of New York, 59 N. 
 Y. (14 Sick.) 166. 
 
 2. Where such judges appointed a part of the 
 number of attendants authorized, and resolved 
 to postpone the appointment of the others until 
 a future time, — Held, that the necessary infer- 
 ence from such resolution was, that they did not 
 intend to continue any in their service except 
 those then appointed. lb. 
 
 3. It seems that the appointment of a successor 
 to an officer holding by appointment and subject 
 to removal by the appointing power, is per se a 
 removal so far as his rights are concerned. lb. 
 
 4. The repeal of a statute under which an ap- 
 pointment was made terminates the rights of 
 the incumbent, and no notice of his removal 
 from office is necessary. lb. 
 
 5. Jurisdiction. No action at law can be 
 maintained, in favor of part of the members of 
 a voluntary incorporated association, against 
 their associates, during the existence of the so- 
 ciety ; and the Marine Court, possessing no 
 equitable powers, can render no judgment in 
 such an action. Ct. App., 1871, McMahon v. 
 Rauhr, 47 N. Y. (2 Sick.) 67 ; Affl'g S. C, 8 Daly. 
 116. 
 
 6. No action upon a contract can be main- 
 tained in the Marine Court against the owners 
 of a vessel, by that generic title alone. The 
 
MARINE INSURANCE— MARRIAGE AND DIVORCE. 451 
 
 proviaion of the Revised Statutes (2Edra. Stats. 
 359), allowing a defendant who is unknown to 
 be sued by a fictitious name, does not apply to 
 that court ; nor can the defect be remedied on 
 appeal under the power of amendment given by 
 the Code. N. Y. C. P., 1869, Fitzsimmons v. Bax- 
 ter, 3 Daly, 81. 
 
 7. An order of arrest granted by a justice 
 of the Marine Court of New York City, under 
 eh. 629, Laws of 1872, regulating the practice in 
 that court, may properly be directed to and 
 served by a marshal of the city. Sup. Ct., Sp. 
 T., 1872, Matter of-Ott, 13 Abb. N. S. 293. 
 
 8. That act substitutes an order in place of a 
 warrant of arrest, and the act of 1865, which 
 gave city marshals power to serve summons and 
 other processes from the Marine Court, applies 
 and extends to orders of arrest. lb. 
 
 9. Attachment. The commencement of a 
 suit in the Marine Court of the city of New York, 
 or in a justice's court, against a resident defend- 
 ant by short attachment, is not authorized by 
 sec. 34 of the non-imprisonment act of 1831 (4 
 Edm. Stats. 478). The atta;chment there pro- 
 vided for, when issued against a resident defend- 
 ant, must be returnable . not less than six nor 
 more than 12 days from its date, and be served 
 as other long attachments, except as otherwise 
 provided by sec. 36. N. Y. C. P., 1872, Haviland 
 V. Wehie, 43 How. 59; S. C, 4 Daly, 549. 
 
 10. Trial by jxiry. The Marine Court is a 
 court of limited and special jxirisdiction, and trial 
 by jury therein can take place only in the mode 
 appointed by statute. Where, therefore, neith- 
 er party demands a jury at joining of issue, the 
 court has no authority, upon the cause being 
 reached for trial, of his own motion to direct a 
 trial by jury. N. Y. C. P., 1869, Mooney v. Hud- 
 son Riv. R. R. Co., 3 Daly, 105. 
 
 11. Where objection is taken at the time, to 
 such direction, by the defendant, he does not 
 waive it by subsequently appearing and trying 
 tVie case before the jury. lb. 
 
 12. Reference. The Marine Court has no 
 power to refer the issues in a cause, unless the 
 trial will require the examination of a long ac- 
 count ; and if a reference be ordered in an action 
 where the sole issue is fraud, the irregularity 
 will render void subsequent proceedings in the 
 action. N. Y. C. P., 1870, Leland v. Smith, 11 
 Abb. N. S. 231 ; S. C, 3 Daly, 309. 
 
 13. Nor can the court deprive a party of his 
 statutory right to a full notice of trial, by di- 
 recting the trial to proceed before the referee on 
 one day's notice, unless that right is waived, or 
 unless imposed as s[ condition on granting a fa- 
 vor, lb. 
 
 14. Executions on judgments in the Ma- 
 rine Court of New York city, which have been 
 docketed in the County Clerk's office, must be 
 issued to the sheriff ; but on all other judgments 
 they may be directed and issued either to the 
 sheriff or to a marshal. Sup. Ct. Chambers, 
 1875, In matter of Lippman, 48 How. 359. 
 
 15. The rule of that court, adopted Nov. 9, 
 1874, requiring all process except orders of ar- 
 rest and attachments to be directed to and exe- 
 cuted by the sheriff, contravenes the statute. lb. 
 
 16. Supplemental proceedings. Under 
 the provisions of ch. 545, Laws of 1874, the Ma- 
 rine Court of New York may entertain supple- 
 mentary proceedings and execute its own judg- 
 ments in the same manner as other courts of re- 
 cord, even though a transcript of the docket of 
 such judgments has been filed in the County 
 Clerk's office. N. Y. Supr. Ct., 1875, Holbrook 
 V. Orgler, 49 How. 289. 
 
 17. Vacation of judgment The omission 
 of the clerk to place a cause on the day calen- 
 dar in accordance with an order of court, will 
 not justify defendant's counsel, who has knowl- 
 edge of such order, in absenting himself from 
 court on that day, nor will judgment taken 
 against his clients in such case be vacated for 
 irregularity, especially where one of them ap- 
 pears in person and takes part in the trial. N. 
 Y. C. P., 1870, Bixby v. Bennett, 3 Daly, 225. 
 
 18. Notice of appeal from the Marine Court 
 of New York city to the Common Pleas need 
 not be served on the clerk of the Marine Court 
 personally, but service at his office, during office 
 hours, upon a person in charge thereof is a suf- 
 ficient compliance with the statute (Code, sec. 
 354), on that subject. N. Y. C. P., Sp. T., 1871, 
 Hoffenberth v. MulUr, 12 Abb. N. S. 221. 
 
 19. Although personal service upon the re- 
 spondent cannot be dispensed with, yet the omis- 
 sion to make it is not fatal to the appeal, if that 
 is taken in good faith, but the court may allow 
 service to be made nunc pro tunc. lb. 
 
 20. Appeal. Upon appeal, the General Term 
 of the Marine Court may review any intermedi- 
 ate order made in the action, involving the mer- 
 its, and necessarily affecting the judgment. N. 
 Y. C. P., 1870, Leland v. Smith, 3 Daly, 309. 
 
 21. To Common Fleas. As to all questions 
 appealable from the Marine Court, the Common 
 Pleas is the court of final resort, except when it 
 allows an appeal to the Court of Appeals, and 
 its orders are conclusive. lb. 
 
 22. Upon appeal from a judgment of the Ma- 
 rine Court the return of the justice cannot be 
 contradicted by affidavit. If it is untrue the 
 remedy is by action for a false return. N. Y. C. 
 P., ,1869, Fitzsimmons v. Baxter, 3 Daly, 81, 
 
 23. Transfer of jurisdiction. The provis- 
 ion of the act relating to the Marine Court of 
 New York city, authorizing any court of record 
 to transfer an action pending therein to the Ma- 
 rine Court, and thereupon giving the latter ex- 
 clusive jurisdiction thereof (sec. 4, ch. 545, Laws 
 1874), is unconstitutional, and an order of the 
 Superior Court for such a transfer is void. Ct. 
 App., 1875, Alexander v. Bennett, 60 N. Y. (15 
 Sick.) 204; Eev'g S. C, 38 N. Y. Supr. (6 J. & 
 Sp.) 492. 
 
 MARINE INSURANCE. 
 See Insusaitce, Mabine. 
 
 MARRIAGE AND DIVORCE. 
 
 I. Makkiage 451 
 
 IL Divorce 452 
 
 1. In general. 
 
 2. Alimony and suit money. 
 
 I. MABBIAaE. 
 
 See ch. 25, Laws of 1873. 
 
 1. Validity. In this State marriage is re- 
 garded simply as a civil contract, and all that is 
 necessary for its validity is the deliberate con- 
 sent of competent parties entering into a present 
 agreement to take each other as man and wife. 
 It is not essential that it be solemnized in any 
 particular form, or by any priest or magistrate. 
 Sup. Ct., Sp. T., 1874, Wright v. Wright, 48 
 How. 1. 
 
452 
 
 MARRIAGE AND DIVORCE. 
 
 2. Except where there are statutory regula- 
 tions declaring void all marriages not solemniz- 
 ed in accordance with a prescribed form, a dec- 
 laration of consent, made in the presence of 
 witnesses, by persons capable of contracting, is 
 all that is necessary to constitute a valid mar- 
 riage. N. T. Supr. Ct., 1870, Durand v. Durand, 
 2 Sweeny, 318. 
 
 3. Foreign. If a person convicted of adultery 
 in an action for divorce brought by his wife, and 
 prohibited by the decree, in pursuance of the 
 laws of this State, to marry again during the 
 life of his divorced wife, goes to another State 
 and is there married again, both parties being 
 immediately before and after the second mar- 
 riage residents of this State, such marriage 
 must be held absolutely void under our statute. 
 Daniels, J., dissents. Sup. Ct., 1874, Marshall 
 V. Marshall, 48 How. 57 ; S. C, 2 Hun, 238. 
 
 II. Divorce. 
 
 1. In General. 
 
 4. Validity. Upon due proof that a mar- 
 riage was procured by deception and fraud as to 
 the health and marriageable condition of the 
 party defendant, it will be declared void. Sup. 
 Ct., Meyer v. Meyer, 49 How. 311. 
 
 5. Foreign divorce. A judgment of divorce 
 and for alimony, procured in Ohio by a wife, 
 who was married in this State and removed to 
 Ohio after her husband had gone to Australia, 
 he never having lived in Ohio, nor been served 
 with process except by publication in a news- 
 paper, and not having appeared in the action, 
 nor had any knowledge thereof until after judg- 
 ment, and after a judgment in this State in a 
 suit by attachment to recover such alimony, and 
 a sale of his property under it, is invalid as to 
 the alimonj', whatever may be its effect upon 
 the marriage. Sup. Ct., 1870, Phelps v. Baker, 
 41 How. 237 ; S. C, 60 Barb. 607. 
 
 6. A decree of divorce from the bonds of 
 matrimony, obtained by the husband in an Iowa 
 court, before he had obtained a residence in that 
 State, and for cruel and inhuman treatment and 
 desertion occurring while the parties were domi- 
 ciled here, the wife never having resided in 
 Iowa, is not valid here for any purpose, for 
 want of jurisdiction of the subjec^matter in the 
 Iowa court. Sup. Ct., 1871, Holmes v. Holmes, 
 4 Lans. R88. 
 
 7. Want of service of process from the Iowa 
 court on the defendant, and of appearance by 
 her therein, also render such a decree invalid 
 here, for want of jurisdiction of the person of 
 the defendant. lb. 
 
 8. The service of process or notice from the 
 Iowa court upon the defendant in this State, 
 does not give that court jurisdiction of her per- 
 son, lb. 
 
 9. A divorce so obtained being equally void 
 as to both parties, the party obtaining it is not 
 estopped from denying its validity. lb. 
 
 10. Judgment annulling. It is irregular to 
 enter a judgment declaring void the marriage 
 contract between the parties, on a referee's re- 
 port, without application to the court on notice 
 to the defendant, and a judgment so entered 
 may be set aside. Sup. Ct., Sp. T., 1873, Blott 
 V. Rider, 47 How. 90. 
 
 11. The Code has not attempted to enlarge 
 or diminish the jurisdiction of the Supreme 
 Court in divorce, as to cases in which it may 
 proceed, or as to the evidence upon which a 
 divorce may be decreed, and it is the duty of 
 
 the court to examine and pass upon the evidence 
 lb. 
 
 12. Rule 92, forbidding the entry of judgment 
 in divorce cases, except upon the special direc- 
 tion of the court, is proper and valid, and it ap- 
 plies to a judgment declaring the marriage con- 
 tract void, that being as much a divorce as is 
 the dissolution thereof. lb. 
 
 13. If a judgment obtained by a husband, 
 annulling his second marriage on the ground of 
 the existence of a former marriage, is opened 
 for fraud in procuring it, after he has contract- 
 ed a third marriage, and the second wife puts 
 in an answer asserting the validity of the second 
 marriage, and the third wife being permitted by 
 the court to come in as a party, puts in an 
 answer denying the validity of the second and 
 asserting that of the third marriage, the plain- 
 tiff cannot without amending his complaint, 
 have a judgment annulling both second and third 
 marriages, although the proofs may show both 
 to be void. Sup. Ct., 1874, Anonymous, 15 Abb. 
 N. S.171. 
 
 14. Decree for maintenance- A decree 
 for the separate maintenance of the wife, in an 
 action for a limited divorce, is not authorized by 
 sees. 54, 55 of the statute on tliat subject (2 R. 
 S. 147; 2Edm. Stats. 153), unless a cause which 
 might justify a separation has been proved, 
 even though the separation itself is denied. 
 Sup. Ct., 1875, Douglass v. Douglass, 5 Hun, 140 ; 
 S. C, before, 13 Abb. N. S. 291. S. P., Davis v. 
 Dams, 1 Hun, 444. 
 
 15. The fact that the husband is shown to be 
 a man of intemperate habits, is not sufficient to 
 justify such a decree. lb. 
 
 16. The impossibility of the husband and wife 
 living together' in harmony, is not ground for 
 legal separation, and will not support such a 
 decree. Sup. Ct., 1874, Davis v. Davis, 1 Hun, 
 444. 
 
 17. Custody of children. In an action by 
 a wife for divorce, the court has power to award 
 her the custody of the children, and its discre- 
 tion in that particular is not subject to review. 
 Ct. App., 1873, Price v. Price, 55 N. Y. (10 Sick.) 
 666. 
 
 18. Setting aside judgment. The provi- 
 sion of see. 135 of the Code, forbidding the 
 court to allow the defendant, in an action for 
 divorce commenced by service by publication, 
 to come in and defend after judgment, applies 
 to cases where judgments have been regularly 
 and fairly 6btained ; and in such cases the judg- 
 ments ought to be considered final and conclu- 
 sive, unless reversed on appeal. Sup. Ct., 1871, 
 Denton v. Denton, 41 How. 221. 
 
 19. But where such a judgment has been 
 obtained by fraud, committed by the plaintiff 
 and the person whom he subsequently married, 
 the court has power to set aside the judgment 
 and allow the injured party to come in and de- 
 fend, and should exercise that power. lb. 
 
 20. After death of husband. A decree of 
 divorce obtained by the husband will not be set 
 aside for fraud and irregularity, after his death, 
 upon mere motion in the divorce case with no- 
 tice to the administrator of his estate ; but the 
 proper remedy is by action in the nature of a 
 bill of revivor, bringing before the court all the 
 heirs-at-law and other persons interested in the 
 real estate left by the decedent, and persons 
 who have taken conveyances from him subse- 
 quent to the decree, as well as his personal 
 representatives. Sup. Ct. 1874, Watson v. Wat^ 
 son, 47 How. 240 ; S. C, 1 Hun, 267. 
 
MARRIAGE AND DIVORCE. 
 
 453 
 
 2, Alimony and suit money. 
 
 21. In actions for limited divorce. An 
 
 allowance for support of the wife during the 
 pendency of a suit for separation on the ground 
 of cruelty, and for counsel fees, — Beld, rightly 
 granted. Sup. Ct, 1874, De Llamosas v. De 
 Llamosas, 2 Hun, 880. 
 
 22. In actions for limited dirorce it is a matter 
 of discretion, not of course, whether alimony 
 shall be allowed the wife pending the suit ; and 
 unless the proofs submitted show that tliere is 
 a meritorious cause, of action and a reasonable 
 probability of the plaintiff's success, the appli- 
 cation should be denied ; especially where, in 
 addition to the doubt of her success, it appears 
 that she has an income of her own sufficient for 
 her support. Sup. Ct., Sp. T., 1872, Douglass v. 
 Douglass, 13 Abb. N. S. 291. 
 
 23. An allowance may, however, be made for 
 counsel fees in such a case, where the case pre- 
 sented by the plaintiff is prima facie sufficient, 
 and it appears that her income is not sufficient 
 to support her and defray the expenses of a law- 
 suit, lb. ,^ 
 
 24. Alimony and counsel fees will not be 
 allowed to the plaintiff in an action for a limited 
 divorce on the ground of desertion, where the 
 proof on the part of the plaintiff fails to estab- 
 lish a marriage contract with the defendant, but, 
 on the contrarj', tends to show that the coha- 
 bitation between them was illicit and meretri- 
 cious from the beginning. N. Y. Supr. Ct., Sp. 
 T., 1874, Humphreys v. Humphreys, 49 How. 140. 
 
 25. Where marriage in fact is denied by the 
 putative husband, in an action against him for 
 divorce, alimony will not be granted until that 
 fact is proven to the satisfaction of the court, or 
 is admitted ; but in passing upon that question 
 for the purposes of the application, the court is 
 not confined to the allegations of the complaint 
 and the denials of the answer, if other papers or 
 proofs are presented to it ; and if the matters 
 shown by legitimate proofs before the court 
 make out, in its judgment, a fair presumption 
 of the fact of marriage, it has the power to 
 grant alimony pending the action, and expenses 
 of the action, notwithstanding tlie denial of the 
 answer. Ct. App., 1872, Brinkley v. Brinkley, 
 50 N. Y. (5 Sick.) 184. 
 
 26. Although the answer denies that the 
 plaintiff is a resident of this State, such denial 
 does not of itself take from the court the power 
 of awarding temporary alimony and expenses 
 of the Suit. lb. 
 
 27. Neither does an allegation of the answer, 
 that before the commencement of the action, 
 the plaintiff liad brought another for tlie same 
 cause in a court of another State. These are 
 issues in the cause, and a presumptive marriage 
 being established, the plaintiff is entitled to an 
 allowance to enable her to sustain her allegations. 
 lb. 
 
 28. An interlocutory order upon a similar ap- 
 plication in a court of another State is not con- 
 clusive upon the courts of this State. lb. 
 
 29. The jurisdiction of the former Court of 
 Chancery to grant divorces was wholly derived 
 from the statutes, and they do not authorize it, 
 by the decree in a suit for a limited divorce, to 
 allow a gross sum to the wife for her support, 
 and direct it to be paid by the husband in lieu 
 of her dower and distributive share in his estate. 
 Sup. Ct., 1862, Crain v. Cavana, 62 Barb. 109. 
 
 30. In action for absolute divorce. The 
 court may, in an action for divorce, award to 
 the wife a sum of money for a specific purpose 
 
 of the suit, as, for referee's fees, instead of for 
 the purposes of the suit generally ; and, withm 
 the limits allowed by statute or agreed upon by 
 the parties, it may award a fixed sum for ref- 
 eree's fees. Ct. App., 1872, ScMoemer v. Schloe- 
 mer, 49 N. Y. (4 Sick.) 82. 
 
 31. Under the power given the court, m an 
 action for divorce, to allow the wife such sums 
 as may be necessary to enable her to carry on 
 the suit " during its pendency," such an allow- 
 ance may be inserted in the final decree. N. Y. 
 C. P., 1870, Gieen v. Green, 3 Daly, 358. 
 
 32. The jurisdiction of the court over the sub- 
 ject-matter of an action for divorce a vinculo 
 and over the parties, in respect to all matters 
 involved in it, terminates with the entry of final 
 judgment therein, except to enforce the judg- 
 ment and carry out its provisions, or to correct 
 any mistakes in the record, upon proper applica- 
 tion made within a reasonable time. Ct. App., 
 1874, Kamp v. Kainp, 59 N. Y. (14 Sick.) 202; 
 Rev'g S. C, 37 N. Y. Supr. (6 J. & Sp.) 241 ; 46 
 How. 143 ; 44 How. 505. 
 
 33. Therefore, if the final decree, in an action 
 for divorce a vinculo by a wife, makes no provis- 
 ion for alimony, it is to be presumed that the 
 court decided adversely to her claim therefor, 
 and the decree is equally final as if such provis- 
 ion had been made. The court cannot award 
 alimony upon a subsequent application. lb. 
 
 34. If an order granting alimony is made upon 
 such an application and proceedings are taken 
 to collect the allowance, the defendant may 
 move at Special Term to have the order set aside 
 for want of jurisdiction. Although he appeared 
 and opposed the order, he is not limited to an 
 appeal therefrom. Grover and Folgee, JJ., 
 dissent. lb. 
 
 35. In actions by husband. In an action 
 by a husband against his wife to have the mar- 
 riage declared void, the court has power on the 
 final hearing, in decreeing judgment in favor of 
 the wife, to allow her a sum for counsel fees 
 and the extra expenses of her defense. Ct. App., 
 1871, Griffin V. Griffin, 47 N. Y. (2 Sick.) 134. 
 
 36. The court in which an action for divorce 
 is brought by a husband against his wife, has 
 power to grant to her temporary alimony pending 
 the suit, and the husband will not be permitted, 
 without compliance with an order so made, to 
 discontinue the suit on payment of costs, by en- 
 tering an ex parte order to that effect. Ct. App., 
 1871, Leslie v. Leslie, 10 Abb. N. B. 64 ; Aff'g 
 S. C, 3 Daly, 194. 
 
 37. In an action for divorce on the ground of 
 adultery, brought by a husband against his wife, 
 where the defendant interposes as a defense re- 
 criminatory charges of adultery against the 
 plaintiff, including an act of adultery found 
 against him on a former trial, which was shown 
 to have been condoned, she is entitled to an 
 allowance fpr counsel fees to enable her to de- 
 fend the action. Sup. Ct., Sp. T., 1872, Aliller 
 V. Miller, 43 How. 125. 
 
 38. The fact that the parties had, in settlement 
 of a previous suit for divorce, voluntarily, with 
 the assent of their counsel, entered into an agree- 
 ment for a separation from bed and board, and 
 the husband had in pursuance of such agreement 
 transferred and delivered to the wife $2,000 in 
 property, which she agreed to receive and ac- 
 cept in lieu of dower and of all rights in his 
 property, and in full for all future charges or 
 liabilities for her support, is no valid reason why 
 such allowance should not be made, although it 
 would justify a denial of alimony. lb. 
 
 39. An order for temporary alimony is super- 
 
454 MARRIED WOMAN— MASTER AND SERVANT. 
 
 seded by the judgment. K the husband ought 
 to pay future alimony, a clause to that effect 
 should be inserted in the judgment ; and if rea- 
 sons exist for the continuance of temporary ali- 
 mony pending an appeal from the judgment, and 
 that contains no direction therefor, a fresh ap- 
 plication in some form should be made. Sup. 
 Ct., 1872, Wood V. Wood, 7 Lans. 204. 
 
 40. Additional allovT-ance. Unusual pro- 
 ceedings on the part of the husband, such as an 
 attempt to discontinue without payment of the 
 alimony ordered, and the prosecution of several 
 appeals, after an allowance of alihiony has been 
 made to the wife pending the suit, on the usual 
 application, afford ground for an application for 
 an additional allowance. N. Y. C. P., Sp. T., 
 1871, Leslie v. Leslie, 11 Abb. N. S. 311. 
 
 41. The fact that the wife has recently receiv- 
 ed a large sum of money under the previous 
 order, after the delay caused by such unusual 
 proceedings, is not ground for refusing an addi- 
 tional allowance sufficient for the ordinary pro- 
 ceedings in the action. lb. 
 
 42. The re-marriage of the wife, after ob- 
 taining a divorce on the ground of her husband's 
 adultery, does not affect the allowance of ali- 
 mony made by the decree for her support, and 
 is no ground for reducing it, or modifying the 
 decree in that respect. Sup. Ct., 1874, Shepherd 
 V. Shepherd, 1 Hun, 240 ; Aff'd by Ct. App. 
 
 43. A third -wife who is permitted to inter- 
 vene to protect her rights, in a suit between the 
 husband and second wife for divorce, the judg- 
 ment in which has been opened since her mar- 
 riage, may properly be allowed alimony and 
 counsel fees therein during its pendency. Sup. 
 Ct., Sp. T., 1874, Anmymous, 15 Abb. N. S. 307. 
 
 44. A judgment against the second wife in 
 such action in effect dismisses her therefrom, 
 and she is no longer entitled to alimony ; but the 
 court may still allow her a counsel fee to enable 
 her to contest further proceedings against her- 
 self in such action. lb. 
 
 45. Enforcing payment. The payment of 
 money as temporary alimony, under an order 
 for that purpose, can be enforced only by com- 
 mittal to prison under sec. 4 of the statute relat- 
 ing to " proceedings as for contempts," &c. (2 
 R. S. 534), or, if the power still exists, by a se- 
 questration of the husband's property. N. Y. 
 Sunr. Ct., Sp. T., 1871, Ford v. Ford, 41 How. 
 169 ; S. C, 10 Abb. N. S. 74. 
 
 46. The statute does not authorize the court to 
 take possession of the property of the husband 
 by means of a receiver, in the first instance, for 
 the purpose of enforcing payment of the allow- 
 ance, but merely to require security for such 
 payment, and to sequestrate his property only 
 
 • upon his default to give security, or to pay after 
 security is given. Sup. Ct., 1874, Davis v. Davis, 
 1 Hun, 444. 
 
 47. The payment of alimony, as required by 
 a final decree of divorce, may be enforced by 
 attachment for contempt, and commitment to 
 close confinement in jail. Sup.'Ct., Sp. T., 1871, 
 Lansing r. Lansing, 41 How. 248 ; Eev'd, S. C, 4 
 Lans. 377. 
 
 48. The payment of the costs and alimony or- 
 dered to be paid by such a judgment, dissolving 
 the marriage contract at the suit of the wife, 
 may be enforced by execution. Proceedings as 
 for contempt are not authorized by sec. 285 of 
 the Code in such a case. S. C, 4 Lans. 377. 
 
 49. Arrears of alimony. An order in a di- 
 vorce case directing payment of arrears of ali- 
 mony previously allowed is erroneous. The 
 party entitled to it should be left to enforce pay- 
 
 ment thereof in the ordinary way. Sup. Ct., 
 1871, Galinger v. Galinger, 4 Lans. 473 ; S. C, 61 
 Barb. 31. 
 
 MAEEIED WOMAN. 
 See Husband and wife. 
 
 MAESHALING ASSETS. 
 See Executors, &c. ; suekogate. 
 
 MASTEE AND SEEVANT. 
 
 1. The relation. Where one employed as 
 agent was, by his contract, entitled to an office 
 to be furnished by his principal, the rent to be 
 " equivalent of clerk hire ; " — Held that a clerk 
 employed by such agent in the business of his 
 principal became a servant of the former and 
 not of the latter. Ct. App., 1872, Mass. Life Ins. 
 Co. V. Carpenter, 49 N. Y. (4 Sick.) 668 ; Aff'g 
 S. C, 2 Sweeny, 734. 
 
 2. The only test by which to determine who is 
 master, and, as such, liable for an injury caused 
 by the negligence of a servant, is to ascertain 
 who hired him and had the power to discharge 
 him. Sup. Ct, 1875, Michael v. Stanton, 3 Hun, 
 462. 
 
 3. Action for enticing away. To main- 
 tain an action for enticement from service, it must 
 appear that the child, apprentice or servant was 
 at the time in the actual service of the parent or 
 master, and that the moving cause of desertion 
 was the inducement held out by the defendant. 
 An actual abandonment of service by such child 
 or servant, before communicating with the de- 
 fendant, will defeat the action. Ct. App., 1872, 
 Caughey v. Smith, 47 N. Y. (2 Sick.) 244. 
 
 4. — for harboring. In an action by a parent 
 for harboring a minor child who had abandoned 
 his service, to enable him to recover, it must be 
 shown that the defendant knew that.the son had 
 left his father's service against the will of the 
 father. If there was an honest belief on the 
 part of the defendant that the youth had his 
 father's consent, he is not liable, though such 
 belief were based upon the child's own state- 
 ments, lb. 
 
 5. Whether or not a minor, over 18 years 
 of age, can lawfully enlist into military service 
 without his father's consent, the fact that he ifc 
 of tliat age will not of itself relieve a defendant 
 from liability in an action by the father for un. 
 lawfully harboring such minor and inducing him 
 to enlist, where the purpose of the enlistment 
 was to serve the defendant as his substitute. lb. 
 
 6. Neither will the fact that the minor was 
 under 18 years of age render the defendant 
 liable absolutely. The question is one of good 
 faith and knowledge, and not of age simply. lb. 
 
 7. Dismissal of servant. Under a contract 
 of hiring, whereby the employer reserves tlie 
 right to discharge his employe at any time upon 
 giving 10 days' notice, tlie right is absolute and 
 to be exercised at discretion ; aiid the fact that 
 a false reason is assigned at the time of discharg- 
 ing, does not prevent the employer from after- 
 ward insisting upon that right. N. Y. C. P. 1871, 
 Smith V. Douglass, 4 Daly, 191. ' 
 
 8. In case of the wrongful discharge of a per- 
 
MASTER AND SERVANT. 
 
 455 
 
 Bon employed to perform personal services for 
 a definite period, it becomes his active duty to 
 make reasonable exertions to find other employ- 
 ment and thus reduce the damages resulting 
 therefrom, and he cannot recover wages for the 
 term remaining after his discharge, nor damages 
 computable upon the loss of such wages, upon a 
 mere tender of performance on his part, without 
 any effort to obtain other employment. N. Y. 
 C. P., Palk V. Daly, 14 Abb. N. S. 156 ; S. C, 4 
 Daly, 411. 
 
 9. The remedy for a servant wrongfully dis- 
 charged before the expiration of the term for 
 which lie is hired, is an action for damages ; in 
 wliich he may recover pay for services actually 
 rendered and unpaid for, and such damages as 
 he has sustained by reason of the dismissal. N. 
 Y. C. P., 1873, Moody v. Leverich, U Abb. N. S. 
 145 ; S. C, 4 Daly, 401. 
 
 10. He cannot recover wages, as such, except 
 for services actually rendered, even though he 
 lield himself ready and tendered performance ; 
 but where he was unable to procure otlier em- 
 ployment, the wages agreed on may be a proper 
 measure of damages. lb. 
 
 11. Evidence of the servant's acts after he has 
 been discharged, such as sending notices to the 
 master's customers whose names he had drawn 
 off, is not admissible to justify the discharge, in 
 an action by the servant to recover his salary 
 after such discharge. N. Y. Supr. Ct., 1871, 
 McGrath V. Bell, 42 How. 182 ; S. C, 33 N. Y. 
 Supr (1 J. & Sp.) 195. 
 
 12. Evidence of the retention of the servant 
 in tlie master's employ for 11 or 12 days after 
 tlie master's knowledge of the existence of the 
 causes for discharge, is evidence to go to the 
 jury of a waiver of those causes. of complaint, 
 lb. 
 
 13. Liability of master. Where a master 
 or principal (whether individual or corporate), 
 delegates to a general agent the performance of 
 duties which he owes to his employes, he is 
 liable for the consequences of the non-perform- 
 ance or negligent performance of those duties 
 by such agent. Ct. App., 1875, Corcoran v. Hol- 
 brooh, 59 N. Y. (14 Sick.) 517. 
 
 14. A master is not liable for the negligence 
 of his servant, while engaged, not in the busi- 
 ness of the former, but upon a private errand of 
 his own, without the knowledge or consent of 
 the master, although the means of injury, as, a 
 horse and carriage, were intrusted by such mas- 
 ter to the servant in the course of his employ- 
 ment. N. Y. C. P., 1872, Sheridan v. Charlick, 
 4 Daly, 338. 
 
 15. — for injury to servant. It is the duty 
 of a master to his servant not to expose him to 
 any risks from imperfect or inadequate machin- 
 ery used in his business, and he is therefore 
 liable for any injury to the servant which may 
 arise from his own neglect to keep the machin- 
 ery provided by him in repair, as well as for 
 any imperfection in its original construction. 
 Sup. Ct., 1875, King v. N. Y. Cent. Sr Hud. Riv. 
 R.R. Co., i Hun, 769. S. P., Laning y. N. Y. 
 Central R. R. Co., 49 N. Y. (4 Sick.) 521. 
 
 16. Where the roof of a railroad depot build- 
 ing projected towards the track so as to be but 
 three inches in a horizontal direction and one 
 foot ten inches in a vertical direction from the 
 top pf the freight cars, and a conductor in 
 climbing up a ladder on a freight car, in the 
 proper discharge of his duty, was struck by such 
 roof, knocked from the car and killed, — Held, 
 that a jury might properly find that the com- 
 pany was guilty of negligence, rendering it 
 
 liable for the injury caused thereby. Sup: Ct., 
 1875, Gibson v. Erie Ry. Co., 5 Hun, 31 ; Eev'd 
 by Ct. App. 
 
 17. A corporation is liable for an injury to 
 an employe, caused by negligence or want of 
 proper care in respect to such acts and duties as 
 it is required to perform and discharge as mas- 
 ter or principal, without regard to the rank or 
 title of the agent intrusted with their perform- 
 ance. As to such acts, the agent occupies the 
 place of the corporation, and the latter should 
 be deemed present, and consequently liable for 
 the manner in which they are performed. 
 Allen, Gkovee and Foloer, JJ., dissent. Ct. 
 App., 1873, Flike v. Boston and Albany R. R. Co., 
 53 N. Y. (8 Sick.) 549. 
 
 18. It is the duty of a railroad corporation, in 
 making up and dispatching a train, to supply it 
 with suitable machinery and sufficient help for 
 the business and journey which it is to under- 
 take. Accordingly, where, by reason of the 
 failure of the agent for dispatching trains, to 
 supply a freight train with more than two brake- 
 men at starting, when three were required, a 
 portion of the oars became detached, and tun- 
 ning back, collided with a subsequent train and 
 killed the engineer thereon, — Held, that the 
 company was liable ; also, that the fact that 
 such agent had employed a third brakeman, 
 who failed to appear, would not relieve the com- 
 pany ; nor would it be reUeved, although negli- 
 gence might be imputed to the defaulting brake- 
 man, lb. 
 
 19. — for negligence of servant. A party 
 for whom work is being done, which is lawful 
 and not a nuisance, is not liable for injuries to 
 third persons caused by the negligence or care- 
 lessness of the workmen engaged in the work 
 unless the relation of master and servant or 
 principal and agent exists between him and 
 such workmen. Com. App., 1874, McCafferty v. 
 Spuyten Duyvil ^ P. M. R. R. Co., 48 How. 44. 
 
 26. Whether, where one party contracts to do 
 the carpenter work and another to do the mason 
 work on a building, one of them can maintain 
 an action against the common employer to re- 
 cover damages for his being delayed in the per- 
 formance of his work by the negligence of the 
 other contractor, query ? Sup. Ct., 1875, Voulter 
 V. Board of Education, etc. of New York, 4 Hun, 
 569. 
 
 21. In an action for injuries caused by a colli- 
 sion of carriages, alleged to have occurred 
 through the negligence of defendant's servant,^ 
 Held, that the defendant's liability depended 
 entirely upon the question whether the coach- 
 man was his servant, and tlie question of the 
 ownership of the horses and carriage was only 
 material as it tended to prove or disprove that 
 fact. Sup. Ct., 1874, Sloane v. Elmer, 1 Hun, 
 310. 
 
 22. The owner of a building in course of erec- 
 tion, the work on which is being done by others 
 under contracts therefor, is not liable for inju- 
 ries caused by the negligence of the men em- 
 ployed in doing the work, but the latter or their 
 immediate emploj'ers alone are liable. N. Y. 
 Supr. Ct., 1874, Gardner v. Bennett, 38 N. Y. 
 Supr. (6 J. & Sp.) 197. 
 
 23. The employment by such owner of a su- 
 perintendent, to see that the work is properly 
 done in accordance with the contract, does not 
 give him such control of the work as to make 
 him liable for the negligence of the workmen, 
 lb. 
 
 24. A. master is liable for accidents resultmg 
 from the negligence of his servant only when 
 
456 
 
 MASTER AND SERVANT. 
 
 the act of the servant is one which the servant 
 is, either expressly, or by the nature of his em- 
 ployment, authorized to perform. When he acts 
 outside of the duties of his employment, and 
 without express directions, his act ceases to be 
 that of his master, and the latter is not liable for 
 the consequences. N. Y. Supr. Ct., 1874, Court- 
 ney V. Baker, 37 N. Y. Supr. (5 J. & Sp.) 249. 
 
 25. Where a mere delivery clerk, having 
 nothing to do with the handling of cotton bales 
 or its disposition on a pier, out of mere curiosity 
 pushed over a bale upon a workman, breaking 
 his leg ; — Held, that the master was not liable. lb. 
 
 26. A lumber dealer employing a servant to 
 haul lumber to and pile it upon his yard, is 
 liable for the consequences of negligent piling, 
 although tlie servant deviates from his instruc- 
 tions relative to the place of piling. Ct. App., 
 1872, Cosgrme v. Ogden, 49 N. Y. (4 Sick.) 255. 
 
 27. Where tlie owner of a steamship employs 
 a lighter to take oS its cargo, the crew of the 
 lighter, employed by the master thereof, are not 
 the servants of the owner of the steamer, and if 
 one of them is injured by the negligence of per- 
 son^ employed on the steamer in transferring 
 the cargo, without negligence on his part, the 
 owner of such steamer is liable therefor. N. Y. 
 Supr. Ct., 1871, Svenson v. Atlantic Mail Steam- 
 ship Co., 33 N. Y. Supr. (1 J. & Sp.) 277 ; Aff'd, 
 S. C, 57 N. Y. (12 Sick.) 108. 
 
 28. The fact that the person guilty of such 
 negligence was at work on the steamer in trans- 
 ferring cargo, raises the presumption that he 
 was the servant of the owner of the steamer, 
 and that with the latter's admission of his owner- 
 ship and control of the steamer establishes his 
 liability. lb. 
 
 29. — causing injury to felloTV servant. If 
 a master is wanting in proper care in the selec- 
 tion of servants, and negligently or knowingly 
 employs or retains in his service those who are 
 incompetent and unfit for the duties to which 
 they are assigned, he is liable to other employes 
 and servants engaged in tlie same service, who 
 sustain damages by reason of such incompetence 
 and unfitness. Ct. App., 1874, Baulec v. New 
 York Sr Harlem R. R. Co., 48 How. 399 ; S. C, 
 59 N. Y. (14 Sick.) 356. S. P., Sizer v. Syracuse, 
 Bing. Sr N. Y. R. R. Co., 7 Lans. 67. 
 
 30. When the master is a corporation, neces- 
 sarily acting by and through agents, the acts of 
 its general agents, charged with the employ- 
 ment and discharge of servants, in the perform- 
 ance of that duty, must be regarded as its acts, 
 lb. 
 
 31. When reasonable precautions and efforts 
 to procure safe and skilful servants are used, 
 and without fault one is employed through 
 whose incompetency damage occurs to a fellow- 
 servant, the master is not liable. lb. 
 
 82. It is the duty of the master to see that liis 
 servant shall be under no risks from imperfect 
 or inadequate machinery, or other material 
 means and appliances, or from unskilful or in- 
 competent fellow-servants of any grade ; and 
 this duty is not discharged by the employment' 
 of one or more competent and skilful general 
 agents, although the master be a corporation. 
 Ct. App., 1872, Laningv.New York Central R.R. 
 Co., 49 N. Y. (4 Sick.) 521. 
 
 33. A master is liable to his servant for an in- 
 jury caused by the incompetency or want of 
 skill of a fellow-servant whether it existed at 
 the time the servant was hired, or has come upon 
 him since the hiring in consequence of habits of 
 intoxication or otherwise, the fellow-servant 
 having been in the first insts.nce hired, or after- 
 
 ward continued in service with notice or knowl. 
 edge, or the means of knowledge, of this lack, 
 lb. 
 
 34. If, however, the servant knowing as well 
 as the master, the existence of that which at 
 last is the producing cause of the injury, con- 
 tinues voluntarily in the master's employ, he 
 may be guilty of contributory negligence which 
 will prevent his recovery ; and whether he was 
 induced to continue by the master's promise to 
 amend the defect, or not, the question whether 
 or not he was guilty of negligence in so doing is 
 for the jury, to be decided upon the circum- 
 tances of the particular case. lb. 
 
 35. While a master's duty to his employes re- 
 quires that he exercise great care in the choice 
 of fellow-servants, even to the institution of 
 afiirmative inquiries to ascertain their character 
 and qualifications, after suitable persons have 
 been employed, tlie same diligence is not thence- 
 forth required. Good character and proper qual- 
 ifications once possessed, may be presumed to 
 continue, and until notice or knowledge equiv- 
 alent to notice of a change, the master will 
 not be liable for an injury to one employe result- 
 ing from the negligent acts of another. Ct. 
 App., 1874, Chapman v. Erie Railway Co., 55 N. 
 Y. (10 Sick.) 579. 
 
 36. A railroad company is not liable for an 
 injury to a person employed by it as an assist- 
 ant surveyor, caused by the negligence of the 
 conductor of one of its trains upon which the 
 former was attempting to get to be transported 
 free of charge to the place where he was work- 
 ing, in the absence of any evidence that such 
 conductor was an incompetent or improper per- 
 son to be eniployed-in that place. Sup. Ct., 1875, 
 Ross V. N. Y: Cent. Sr Bud. R. R. R. Co., 5 Hun, 
 488. 
 
 37. Such surveyor and conductor were co- 
 employes within the rule exempting the master 
 from liability, and the fact that they were em- 
 ployed in different departments does not affect 
 the company's liability. lb. 
 
 38. While liable for the negligence of a fel- 
 low-servant wlio is charged by him witli the 
 performance of a duty which he owes to his 
 employes, and who thereby, for the occasion, 
 stands in his place, a master is not answerable 
 for the negligence of a competent fellow-servant 
 not so charged, although he may have had some 
 authority and power of direction over the in- 
 jured servant. Ct. App., 1874, Bofnagle v. N. 
 Y. Central Sr Hud. Riv. R. R. Co., 65 N. Y. (10 
 Sick.) 608. 
 
 39. A railroad company is not liable for an 
 injury to one of its servants caused by the negli- 
 gence of another servant in misplacing a switch, 
 even though it was a common switch, and the 
 accident might not have occurred had the 
 company provided a target switch; the former 
 being adequate and sufficient when properly 
 cared for. Sup. Ct., 1874, Salters v. Prest., etc. of 
 the Del. ^ Hud. Canal Co., 3 Hun, 338. 
 
 40. The company owes a duty to its servant 
 to place him under no risks from imperfect or 
 inadequate machinery, or other material means 
 or appliances known, or which might, but for 
 their negligence, be known to them, but is not 
 bound further to employ mechanical appliances 
 to protect one servant from the negligence of 
 another. lb. 
 
 41. — for tort of servant. If a conductor 
 in charge of a railroad train, acting under a 
 mistake of facts or a mistake of judgment upon 
 the facts, wrongfully ejects a passenger from 
 such train or, having sufficient cause to eject 
 
MAXIMS. 
 
 457 
 
 him, without malicious intent uses more force 
 than is necessary, tlie company will be respon- 
 sible therefor. Gt. App., 1871, Higgins v. Waier- 
 vliet Turnpike Co., 46 N. Y. (1 Sick.) 23. 
 
 42. The owner and mortgagee of a canal boat, 
 entrusted by them to the control of a master, 
 with freight contracted absolutely to be deliv- 
 ered at a certain place, are liable for any defi- 
 ciency of cargo, even though it was stolen by or 
 with the knowledge of the master. U. S, Dist. 
 Ct., 1875, Van Buren v. Canal Boat McChesney, 
 49 How. 178. 
 
 43. A master is civilly liable for the tortious 
 act of his servant, whether it be one of omission 
 or commission, and whether negligent, fraudu- 
 lent or deceitful, if done in the course of the 
 servant's employment. lb. 
 
 44. Where the servants of a carrier, exempted 
 by its contract from liability except for its own. 
 negligence, after the landing of the goods upon 
 a pier and while they were yet in its custody, 
 took from the servants of the consignee a tar- 
 paulin with which they were endeavoring to 
 protect them from a storm ; and placed it over 
 the hatchway of the vessel,^fleM, that the in- 
 jury to the goods resulting therefrom was not 
 wilful on the part of such servants in the sense 
 that they designed it, that they were acting in 
 the business of their master, and that he was 
 liable. Ct. App., 1874, Gleadell v. Thomson, 56 
 N. Y. (11 Sick.) 194. 
 
 45. A master who, with his servant is endeav- 
 oring to make an entry upon premises under 
 claim of right and against opposition, is respon- 
 sible for aU acts of the latter within the general 
 scope of the design, or which legitimately and 
 naturally result from the purpose ; but he is not 
 responsible for wilful, malicious or criminal 
 acts, not done either by his direction, or with 
 his assent. Ct. App., 1871, Fraser v. Freeman, 
 43 N. Y. (4 Hand,) 566 ; Eev'g S. C, 56 Barb. 
 234. 
 
 46. A railroad company, whose conductor 
 takes up tickets for an intermediate station at 
 which the train does not usually stop, telling 
 the passenger that it will probably stop there 
 for water, and after passing such station with- 
 out stopping, wilfully abuses and insults such 
 passenger for not getting off, is not liable for 
 such acts of the conductor, they not being done 
 in the discharge of his duty. Sup. Ct., 1875, 
 Parker v. Erie By. Co., 5 Hun, 67. 
 
 ' 47. A master is not liable for the wilful and 
 tortious act of his servant, not committed by 
 his express authority or assent, or within the 
 scope of the authority conferred bv him. Ct. 
 App., 1871, Isaacs v. Third Ave. R. R. Co., 47 N. 
 Y. (2 Sick. ) .122. S. P., Ryan v. Hud. Riv. R. R. 
 Co., 33 N. Y. Supr. (1 J. & Sp.) 137. 
 
 48. Accordingly held, that, where a passenger 
 on a street railroad car notified the conductor 
 that she wished to stop, and passed out on to the 
 platform for that purpose, but refused to get off 
 until the car should come to a full stop, where- 
 upon the conductor took hold of her shoulder 
 and violently threw her off, the railroad cornpany 
 was not liable. Isaacs v. Third Ave. R. R. Co., 47 
 N. Y. (2 Sick.) 122; 
 
 49. The conductor of a street car is not the 
 " driver of a carriage," within the meaning of 
 see. 6, of the act entitled " of the law of the 
 road and the regulation of public stages" (1 
 Edm. Stats. 649), which makes the owner of a 
 carriage such as is therein designated, liable for 
 injuries done by the driver, whether the act be 
 wilful, or otherwise. lb. 
 
 50. A railroad company, whose baggage mas- 
 
 ter, in the discharge of his duty, pushes a tres- 
 passer off the train in an improper and at a 
 dangerous place, is liable to the latter for the 
 injuries thereby sustained. Sup. Ct., 1874, 
 Rav.nds v. Del., Lack. ^ W. R. R. Co., 3 Hun, 329. 
 
 51. It seems, the company would be liable, 
 whether the servant acted in good or in bad 
 faith, negligently or wilfully, if in the line of 
 his duty. lb. 
 
 52. A brakeman upon a railroad train is a 
 servant of the railro.ad company, and as such 
 bound to preserve and protect the company's 
 property, and prevent any unlawful trespass 
 upon it, and the company is responsible for his 
 acts done in the performance of his duty. N. Y. 
 Supr. Ct., 1873, Hughes v. N. Y. 4r New Haven R. 
 R. Co., 36 N. Y. Supr. (4 J. & Sp.) 222. 
 
 53. But where such brakeman causes an 
 injury to another by an act not in the perform- 
 ance of his duty to his master, as where he at- 
 tempts to eject a boy wrongfully on a car, while 
 the train is in rapid motion, by ordering him to 
 get off and threatening to kick him off if he 
 does not get off, tlie company is not liable for 
 injuries sustained by the boy in leaving or fall- 
 ing from the train under such threats, but it is 
 a personal tort on the part of the brakeman. lb. 
 
 54. Punitory damages. A master is not 
 liable for punitory damages for the act of his 
 servant, done under such circumstances as 
 would give the plaintiff no right to them against 
 the servant had he instead of his master been 
 defendant. Ct. App., 1874, rotonsAend v. iV. Y. 
 Central #• Hud. Riv. R. R. Co., 56 N. Y. (11 Sick.) 
 295. 
 
 55. A master is not liable in punitive dam- 
 ages for the negligent act of his servant while 
 engaged in his business, unless himself is also 
 chargeable with gross misconduct, as by author- 
 izing or ratifying the act or by employing or 
 retaining the servant knowing him to be incom- 
 petent or, from bad habits, unfit for the position 
 he occupies. Ct. App., 1874, Cleghorn v. New 
 York Central R. R. Co., 66 N. Y. (11 Sick.) 44. 
 
 56. Corporations may incur this liability as 
 well as natural persons. lb. 
 
 MAXIMS. 
 
 1. Ezpressio unius est exclusio alterius, 
 and ezpressum facit cessare taciturn, ap- 
 ply as well to the construction of statutes as of 
 contracts ; and a statute which carefully pre- 
 scribes in what eases a receiver may be appoint- 
 ed, excludes every other case. Ct App., 1870, 
 Fellows V. Heerman, 13 Abb. N. S. 1. 
 
 2. Falsa demonstratio non nocet, does 
 not apply to a contract, unless there is enough 
 left, after rejecting the false, to constitute an 
 adequate, sufficient description, pointing out with 
 convenient certainty the thing intended. Ct. 
 App., 1873, Bryce v. Lorillard Fire Ins. Co., 46 
 How. 498; 55 N. Y. (10 Sick.) 240. 
 
 3. TTbi jus, ibi remedium, was a part of the 
 common-law of England, and followed our an- 
 cestors here and became a part of the colonial 
 law. It was adopted by the constitution of 1777, 
 and has never been abrogated, but it is still the 
 duty of the State to protect its citizens against 
 wrong, and to provide a remedy therefor. Sup. 
 Ct, 1872, People v. Tweed, 13 Abb. N. S. 25. 
 
458 
 
 MECHANIC'S LIEN. 
 
 MECHANIC'S LIEN. 
 
 See CH. 669, Laws or 1872 ; oh. 489, Laws of 
 1873. 
 
 1. For vrhat given. The terms of the act 
 of 1862 (ch. 478, sec. 1), are sufficiently com- 
 prehensive to cover a claim for flagging the 
 sidewalk in front of a building. Ct App., 1873, 
 Moran v. Chase, 52 N. T. (7 Sick.) 346. 
 
 2. Wliere work in plastering a house was 
 done by the plaintiff, at different times during 
 one season, and the lien was filed within 30 
 days after the completion of the work, and the 
 evidence tended to show that it was really all 
 one piece of work, although the items were di- 
 rected to be done and were done at different 
 times ; — Held, that, under ch. 658, Laws 1869 
 (7 Edm. Stats. 456), the plaintiff was entitled to 
 recover for all the work done, and not merely 
 for that done within 30 days before the filing 
 of his lien. Sup. Ct, 1874, Costello v. Dale, 1 
 Hun, 489. 
 
 3. A mechanic's lien covers all materials 
 furnished and labor performed by the claimant, 
 including labor of others employed by him and 
 materials purchased on his own credit and used 
 in the construction ; but it will not extend to 
 materials furnished by another, under a contract 
 with the claimant as agent of the owner, and 
 solely on the credit of the latter, although ac- 
 tually paid for by such claimant. Ct. App., 
 1871, Kerb;/ v. Daly, 45 N. Y. (6 Hand,) 84. 
 
 4. A contractor for building who employs 
 workmen to assist liim, is not restricted in his 
 lien to the amount actually paid such employes, 
 but is entitled as well to a lien for the value of 
 tlie services employed, though exceeding such 
 amount. Ct. App., 1872, Anderson v. PiUaye, 47 
 N. Y. (2 Sick.) 678. 
 
 5. The lien under the act of 1863 attaches 
 only to the extent of the materials furnished 
 within three months prior to filing the notice, 
 even though all the materials were furnished 
 under one contract, and the notice was filed 
 within three months after the last was furnished. 
 N. Y. C. P., 1873, Hubbell v. Schreyer, 14 Abb. 
 N. S. 284; S. C, 4 Daly, 362. 
 
 6. On -what attaches. A lien for labor 
 performed under a contract with one having 
 only an equitable title to the premises, under an 
 agreement with the owner for the purchase 
 thereof and for an advance of money to enable 
 him to build thereon, notice of which was filed 
 before the giving of the deed, affects only thei 
 title of the purchaser. N. Y. C. P., 1871, Hal- 
 lahan v. Herbert, 11 Abb. N. S. 326 ; S. C, 4 
 Daly, 209. 
 
 7. Such lien is not affected by proceedings 
 to extinguish such equitable title, without notice 
 to the lienor, or making him a party thereto, 
 lb. 
 
 8. The relation of owner and contractor does 
 not subsist as between parties to a contract for 
 the sale of land by one to the other and the 
 advancement of money by the vendor to the 
 purchaser with which to build thereon, the lat- 
 ter to secure the purchase-money and advances 
 by mortgage on completion of the houses. The 
 purchaser, in such case, builds by permission of 
 the owner, and the property is chargeable with 
 the lien jintil the deed is actually delivered, 
 without regard to the terms of the contract. 
 Sup. Ct., 1875, Gates v. Whitcomb, 4 Hun, 137. 
 
 9. One holding lands In trust, is, as between 
 herself and those with whom she deals, the 
 owner of the land, within the meaning of the 
 
 statute rela,ting to mechanics' liens ; and such 
 lands will be subject to the lien of mechanics 
 employed by her. Ct. App., 1872, Anderson v, 
 DiUaye, 47 N. Y. (2 Sick.) 678. 
 
 10. Under the mechanic's lien law for the city 
 of New York (ch. 500,. Laws of 1863), no Hen 
 can be created upon the interest of any person 
 as owner of the premises, except such person 
 shall, either himself or by his agent, enter into 
 a contract, express or implied, for doing the 
 work. Cora. App., 1873, Muldoon v. Pitt, 54 
 N. Y. (9 Sick.) 269 ; Aff'g S. C, 4 Daly, 105. 
 S. P., Knapp V. Brown, 11 Abb. N. S. 118; S, C, 
 46 N. Y. (6 Hand,) 207. 
 
 11. Wliere a lessee, who is bound by covenant 
 to make improvements, and leave them on the 
 premises, employs a mechanic to do the neces- 
 sary labor and furnish materials, the interest of 
 the owner is not bound by a lien therefor. lb. 
 
 12. Where a husband acts as agent for his 
 wife in procuring improvements to be made 
 upon her separate estate, not disclosing his 
 agency, although the contractor for such im- 
 provements gave an apparent credit to him, yet 
 he has a right of recourse to the undisclosed 
 principal whenever that relationship comes to 
 his knowledge, and he can enforce his claim 
 against the property of the wife. N. Y. C. P., 
 
 1873, McGraw v. Godfrey, 14 Abb. N. S. 397. 
 
 13. In order to charge one who has acquired 
 a leasehold interest in the premises, or such in- 
 terest, with claims for labor and materials fur- 
 nished in altering and repairing the premises, it 
 must be affirmatively shown that the liens were 
 acquired in pursuance of some contract made or 
 ratified by such party as owner of the premises 
 or by his duly authorized agent. N. Y. C. P., 
 
 1874, DeRonde v. Olmsted, 47 How. 175. 
 
 14. The statute relating to mechanics' liens 
 does not give a lien upon a public building, 
 erected under a contract made by public officers. 
 Ct. App., 1872, Poillon v. Mayor, etc. of the City 
 of New York, 47 N. Y. (2 Sick.) 666. 
 
 15. The act establishing a mechanic's lien for 
 Rensselaer county (ch. 778, Laws 1866), was 
 not repealed by ch. 558, Laws of 1869, as 
 amended by ch. 194, Laws of 1870. Sup. Ct., 
 
 1875, Van Denbarg v. Prest. and Trustees of Green- 
 bush, 4 Hun, 795. 
 
 16. Whether a building which is the corporate 
 property of a municipality, to be exempt under 
 that law, must not be actually used for a public 
 purpose, as well as intended therefor, query 9 lb. 
 
 17. Notice of lien. The owner of premises 
 on which a lien for materials is claimed cannot 
 object to a notice of lien, that it alleges that he 
 and the contractor are jointly liable, although 
 only an individual undertaking on his own 
 part is shown. It is a matter of defense only 
 to the person so joined. N. Y. C. P., 1873, Hub- 
 bell V. Schreyer, 14 Abb. N. S. 284; S. C, 4 Daly, 
 362. 
 
 18. A notice which shows a claim for a certain 
 amount against the owner, upon a contract made 
 with him, is a substantial compliance with the 
 requirement of the statute that the notice shall 
 state the amount claimed, and from whom, and is 
 sufficient to create a lieu to the extent of the 
 claim made against the owner ; and a further 
 claim therein of the same amount against the 
 contractor may be rejected as surplusage. lb. 
 
 19. A notice of a claim due to three persons 
 jointly, which merely states that the amount is 
 due to one of them, is not a complianoe with 
 the statutory provision requiring the notice to 
 state to whom the claim is due, and is not suffi- 
 cient to create a lien, and it cannot be helped 
 
MECHANIC'S LIEN. 
 
 459 
 
 by proof of an assignment to such person by 
 his co-contractors of all their joint interest in 
 the claim, made after the filing of his notice, 
 hov^ever it might be if made before such filing. 
 lb. 
 
 20. That statement is expressly required by 
 statute, and no lien can be created where any- 
 thing is omitted which is so required. lb. 
 
 21. A notice is sufficient notwithstanding an 
 ambiguity in one part in describing the claim as 
 against one person only, if it also contains in 
 subsequent parts a full and accurate statement 
 showing it to be against two persons. Ct. App., 
 1874, S. C, 15 Abb. N. S. 300. 
 
 22. Such mistake may be deemed cured by 
 the provision of sec. 2 of the act of 1863, that 
 no variance shall Impair the claimant's right, 
 but relief shall be given according to the evi- 
 dence, lb. 
 
 23. A notice by one of several joint contract- 
 ors, of a claim for materials furnished by him 
 under a new contract with him alone, after the 
 original joint contract had been abandoned and 
 the materials under it paid for, is good ; and an 
 assignment subsequently taken by him from 
 the other original joint contractors does not 
 show that they are interested or necessary 
 parties. lb. 
 
 24. Under the act of 1868, a claim against the 
 owner of the premises and one against the con- 
 tractor may be included in the same notice, if 
 each is separately distinguished ; for the court 
 may enforce the latter as a lien upon the build- 
 ing to the extent of the payments due from the 
 owner to the contractor, and as respects the 
 other, not only enforce it as a lien, but render 
 a personal judgment against the owner for 
 the amount. S. C, 14 Abb. N. S. 284; 4 Daly, 
 362. 
 
 25. But a claim stated in the notice to be 
 against the contractor must, on foreclosure of 
 the lien, be shown to be a claim against him, 
 and not merely one against the owner. lb. 
 
 26. A statement in the notice of lien, that the 
 claim is made against a person other than the 
 owner, and that the work, &c., were furnished 
 at his request, does not vitiate proceedings in- 
 stituted against the owner, when the notice also 
 states who was the owner, and it appears by 
 both complaint and answer that he contracted 
 with the claimant for the work. Ct. App., 1873, 
 Moran v. Chase, 52 N. Y. (7 Sick.) 346. 
 
 27. A notice of lien against property con- 
 tracted to be sold, for materials furnished for 
 buildings to be erected by the purchaser, which 
 gives the name of the party who lias contracted 
 to sell as the owner, sufiSciently describes the 
 owner within the provisions of the lien law for 
 the county of Kings. Sup. Ct., 1876, Riley v. 
 Watson, 3 Hun, 568. 
 
 28. The addition of the words " with interest " 
 to the statement of the amount claimed in a no- 
 tice of lien, does not vitiate the lien, but they 
 may be treated as surplusage. Sup. Ct., 1875, 
 McMillan v. Seneca Lake Grape and Wine Co., 
 5 Hun, 12. 
 
 29. Second notice. A party who has filed 
 a notice of lien and failed to enforce it, is not 
 thereby barred from enforcing one subsequently 
 filed by him. Ct. App., 1874, Hallahan v. 3er- 
 lert, 55 N. Y. (12 Sick.) 409. 
 
 30. Filing. The word " hereafter," in the 
 first line of sec. 1 of the mechanic's lien law of 
 1854, being retained in the section as amended 
 by ch. 588, Laws 1869, applies to all labor and 
 materials furnished after the passage of the 
 original act ; and the new provision, requiring 
 
 notice to be filed in the office of the county clerk, 
 became operative when the amendatory statute 
 took eflEect, and applied to claims for materials 
 furnished before its passage, and the provision 
 in the original act as to serving notice on tlie 
 town clerk, beii^ omitted, was at the same 
 time repealed. Ct. App. 1872, Moore v. Man- 
 sert, 49 N. Y. (4 Sick.) 832 ; AfE'g S. C, 5 Lans. 
 173. 
 
 81. In case of an entire contract to furnish 
 materials for a building to be paid for in a gross 
 sum when all have been delivered, the materials 
 cannot be deemed to have been " furnished " 
 until all are delivered, and the notice of lien 
 may be filed within three months from that time. 
 N. Y. C. P., 1875, Baden v. Buddensick, 49 
 How. 241. 
 
 32. Where the notice of lien first filed has 
 been discharged, upon the express agreement 
 of the defendant to pay a note given by him at 
 maturity, if he fails to do so the lienor may file 
 a new notice of lien, within the time limited by 
 statute^ lb. 
 
 33. Wlien terminates. Under the mechan- 
 ic's lien law of 1854 (ch. 402), providing in sub- 
 stance that the lien thereby given should con- 
 tinue for one year unless sooner discharged, and 
 if judgment should be rendered and docketed 
 within said year it should be a lien, etc., there 
 was no provision for extending the lien in any 
 event, before judgment, beyond a year. Hence, 
 although proceedings were commenced within 
 the year and prosecuted diligently, yet, unless 
 judgment was obtained within the year the lien 
 terminated. Com. App., 1873, Benton v. Wick- 
 wire, 54 N. Y. (9 Sick.) 226. 
 
 34. Continuance. A notice of lien filed 
 on the ninth of a month at noon, does not ex- 
 pire until the ninth of the same month in the 
 succeeding year, and may be renewed on the 
 morning of the latter day by making a new 
 docket on an order obtained for its renewaL 
 N. Y. C. P., 1875, Haden v. Buddensick, 49 How 
 241. 
 
 35. In order to continue a lien in force after 
 the expiration of a year from the creation there- 
 of, it is not sufficient to commence an action to 
 foreclose it, but there must be an order obtained 
 continuing it, and such order must be filed with 
 the county clerk and a new docket thereof 
 made. N. Y. C. P., Sp. T., 1870, Barton v. Ber- 
 man, 3 Daly, 320 ; S. C, 8 Abb. N. S. 899. 
 
 36. Where the clerk did not docket the order 
 continuing the lien, because it purported to con- 
 tinue a lien of a different date from the one in- 
 tended, and it wa-s taken away and not returned, 
 — Held, that the lien had expired. lb. 
 
 37. The provision of the old mechanic's lien 
 law for the city of New York (sec. 12, ch. 573, 
 Laws of 1851), continuing the lien until judg- 
 ment, was not repealed by ch. 500, Laws of 1863, 
 which limits the lien to one year, unless con- 
 tinued by order of court ; the latter act having 
 a prospective operation only. Consequently, 
 where notice of lien was filed and proceedings 
 commenced under the law of 1851, to enforce 
 the lien, before the act of 1863, took effect, the 
 lien continued after the expiration of one year 
 and until the rendition of judgment. Com. App., 
 1874, Fitzpatrick v. Boylan, 57 N. Y. (12 Sick.) 
 433. 
 
 38. The act of 1871 (ch. 363), providing for 
 the extension of mechanics' liens until the ren- 
 dition of judgment and for one year thereafter, 
 where proceedings are commenced within one 
 year after filing the lien, is remedial in its na- 
 ture, and must be construed as applying to cases 
 
460 
 
 MECHANIC'S LIEN. 
 
 •where the lien already existed when the statute 
 took effect. Sup. Ct., 1872, Trim v. Willmighby, 
 44 How. 189. 
 
 89. Cancellation of contract. Whether 
 the cancellation of a building contract by the 
 parties, after the owner of the building had ac- 
 cepted an order drawn by the contractor in 
 favor of a material-man, paya<ble out of a future 
 instalment, would affect the lien of the latter, 
 query f Sup. Ct., 1875, Jenks v. Brown, i Hun, 
 128. 
 
 40. In an action by the material-man to en- 
 force his lien, the question whether the contract 
 was cancelled in good faith, and if not, how 
 much was due on It, should be left to the jury, 
 lb. 
 
 41. Payment, effect of. A voluntary pay- 
 ment made in good faith by tlie owner of the 
 building to the contractor, before the lien of a 
 sub-contractor is filed, is a good payment as 
 against the latter, under the mechanic's lien law 
 of the city of New York of 1863 as well as under 
 that of 1851, even though by the terms of the 
 contract the amount was not then due and did 
 not become due to the contractor until after the 
 lien notice was filed. N. X. C. P., 1871, Sdmieder 
 V. Hobein, 41 How. 232. 
 
 42. But a voluntary payment, made by the 
 owner to the contractor after the sub-contractor 
 or workman has filed his lien notice, cannot in 
 any way affect or impair the latter's lien. lb. 
 
 43. Under the lien law for the city of New 
 York, one who has furnished materials to a con- 
 tractor can acquire no lien as against the owner 
 by filing a notice of lien after such contractor 
 has received payment from the owner in pursu- 
 ance of the contract for all work done, and has 
 made default and abandoned the contract. 
 Ct. App., 1875, Crane v. Genin, 60 N. Y. (15 Sick.) 
 127. 
 
 44. Neither can a material-man toj a sub-con- 
 tractor acquire such a lien by filing a notice after 
 full payment to the latter pursuant to his con- 
 tract, although money thereafter becomes due 
 and payment is made to the original contract- 
 or, lb. 
 
 45. Where the material-man to a sub-con- 
 tractor furnished a quantity of lumber, on the 
 promise of the owner to pay him a specified 
 sum, less than the full value thereof, and the 
 owner paid him accordingly, — Held, that he was 
 not entitled to a lien for the balance of the 
 price, under sec. 1, of the act, as for materi- 
 als furnished by direction of the owner. lb. 
 
 46. The plain operation of the statute, in case 
 a lien is filed by a sub-contractor, is to transfer 
 to the lienor so much of the claim of the con- 
 tractor against the owner, as will be sufficient to 
 satisfy his demand against the contractor ; and a 
 payment to the contractor afterward made can 
 in no wise affect or impair the rights of the 
 lienor. Sup. Ct., 1875, McMillan v. Seneca Lake 
 Grape & Wine Co., 5 Hun, 12. 
 
 47. The fact that on the very day the lien was 
 filed the contractor became unable to complete 
 the building, or to advance the funds necessary 
 to purchase materials and pay laborers thereon, 
 and the owner was obliged to, and did, in order 
 to complete his building, purchase materials and 
 pay laborers, to an amount exceeding the con- 
 tract price of the building, cannot affect his lien, 
 if the contract was not then abandoned, but re- 
 mained in force. lb, 
 
 48. Where the contract provides that the con- 
 tractor shall receive 80 per cent, of the value of 
 the work as it progresses, and the work has been 
 in part performed, it is incumbent on the owner, in 
 
 an action by the lienor, to show that 80 per cent 
 on the value of the work abeady done was paid 
 before the filing of the lien. lb. 
 
 49. Priority. If a notice of lien, for work 
 done and materials furnished to a lessee of 
 premises before a mortgage of his lease was ex- 
 ecuted by him to his lessor, is first recorded, the 
 lien has priority over the mortgage, although 
 that was given for advances previously made un- 
 der an agreement that they should be applied to 
 the improvement of the premises. Otherwise, 
 if the mortgage was first recorded. N. Y. Supr, 
 Ct., 1871, Stuyvesant v. Browning, 33 N. Y. Supr. 
 (IJ. &Sp.)263. 
 
 50. Where a contractor for a building gives to 
 a material-man an order on tlie owner for the 
 price of materials furnished, and the latter, on 
 presentation of the order, neither pays nor ac- 
 cepts it, but postpones action on it until there 
 shall be something due to the contractor, merely 
 assenting to it as a transaction between the par- 
 ties, that amounts to an equitable assignment of 
 the amount, to take effect when payments be- 
 come due to the contractor ; and it is entitled to 
 preference in payment over a mechanic's lien 
 subsequently filed. Sup. Ct., 1872, Young Stone 
 Dressing Co. v. Wardens and Vestry of St. Jama 
 Church, 61 Barb. 489. 
 
 61. Such an assignment does not violate the 
 provision in the lien law forbidding the transfer 
 of the contractor's interest in the contract, not 
 being an assignment of the contract or of any 
 interest in it, but of a payment merely ; and 
 even if it did, the objection only applies to a 
 contract between parties having liens. lb. 
 
 62. Who may acquire lien. The lien of a 
 mechanic or material-man is a personal right, 
 and the right to create it cannot be assigned or 
 transferred to another, unless such assignment 
 is made for the benefit of the assignor and to he 
 held as his agent. Ct. App., 1871, Rollin v. Cross, 
 46 N. Y. (6 Hand,) 766. 
 
 53. A mechanic who is entitled to a lien may 
 file his notice of lien, even after he has assigned 
 his claim, and commence an action in his own 
 name to foreclose the same ; and if he neglects 
 to act, the assignee may do, in the assignor's 
 name, whatever is permitted for the security or 
 enforcement of the demand. N. Y. C. P., 1871, 
 Hallahan v. Herbert, 11 Abb. N. S. 326 ; S. C, 4 
 Daly, 209 ; AfE'd, S. C, 57 N. Y. (12 Sick.) 409. 
 
 54. In such action, after its commencement, 
 the assignee may be substituted as plaintiff, and 
 the order while unreversed is conclusive as to 
 the right of such assignee to maintain the action, 
 lb. 
 
 65. A proceeding under the mechanic's lien 
 law of 1851 for the city and county of New 
 York, to enforce a lien created under that act, is 
 not an action but a special proceeding, and the 
 provision of the Code requiring actions to be 
 prosecuted in the name of the real party in in- 
 terest does not apply to it. Ct. App., 1874, Hal- 
 lahan V. Herbert, 67 N. Y. (12 Sick.) 409 ; Aff'g 
 S. C, 11 Abb. N. S. 326; 4 Daly, 209. 
 
 56. Under ch. 478, Laws of 1862, a person fur- 
 nishing materials, upon a contract with one erect- 
 ing a building by permission of the equitable 
 owner of the land only, can acquire no lien as 
 against the legal owner; but where the legal 
 title vests in such equitable owner before the 
 time arrives for filing the lien, the conditions of 
 the statute are met and a lien under it is given. 
 Ct. App., 1871, Bollin v. Cross, 46 N. Y. (6 Hand,) 
 766. 
 
 67. Under the provisions of the mechanics' 
 hen law applicable to Onondaga county (ch. 366, 
 
MECHANIC'S LIEN. 
 
 461 
 
 Laws 1864, as amended by ch. 788, Laws 1866), 
 a person who has furnished materials or done 
 worli upon a building under a sub-contractor can- 
 not acquire a lien against the building by filing 
 a notice after tlie contractor has paid the sub- 
 contractor for the work done under his sub-con- 
 tract, even though there may be sufficient due 
 from the owner to the contractor to satisfy his 
 claim. Ct. App., 1874, Lumbard v. Syr., Bing. ^ 
 N. Y. R. R. Co., 56 N. Y. (10 Sick.) 491 ; Modify- 
 ing S. C, 64 Barb. 609. 
 
 58. Such person can acquire a lien only to the 
 extent of the amount then due, or afterward be- 
 coming due to the sub-contractor upon his con- 
 tract, lb. 
 
 69. Discharge of lien. While issues joined 
 in an action to foreclose mechanics' liens are 
 pending and undetermined, it is doubtful whether 
 the court can discharge the liens upon summary 
 motion outside the action, but if it could, it 
 ought not to do so, but should leave the parties 
 to their remedy in the action. N. .Y. 0. P., Sp. 
 T., 1874, Matter of lien on 740 Broadway, 15 Abb. 
 N. S. 835. 
 
 60. Neither will the court reduce the amount 
 of a lien, under such circumstances. lb. 
 
 61. The court cannot properly discharge a 
 mechanic's lien upon a summary application on 
 ex parte affidavits, pending a reference in an ac- 
 tion to foreclose such lien, especially, where such 
 affidavits merely state that certain facts appeared 
 by the testimony before the referee, but do not 
 give the testimony itself. N. Y. Supr. Ct., 1871, 
 McGuckin V. Coulter, 10 Abb. N. S. 128; S. C, 
 33 N. Y. Supr. (1 J. & Sp.) 324. 
 
 62. It is not sufficient in affidavits for such 
 discharge to allege generally that " the lien has 
 not been renewed according to law, and that 
 more than a year has elapsed since the lien was 
 filed," but the facts sustaining the allegation 
 must be stated. lb. 
 
 63. A lien acquired under ch. 613, Laws 1851, 
 or the amendatory act, ch. 404, Laws 1855, can- 
 not be discharged except as provided in sec. 11 
 of the former act. N. Y. C. P., 1871, Hallahan 
 v. Herbert, 11 Abb. N. S. 326 ; S. C, 4 Daly, 209. 
 
 64. The provision of oh. 500, Laws 1863, au- 
 thorizing the discharge of a lien by an entry, 
 by order of court, that the judgment has been 
 secured on appeal, does not authorize the dis- 
 charge of a lien acquired under previous acts in 
 that manner ; nor does sec. 339 of the Code 
 provide for any release of the primary lien of the 
 debt in such a case, by such an entry. lb. 
 
 65. Parties asserting a lien by virtue of a 
 statute, must bring themselves within its terms, 
 and the lien must be shown, not only to have 
 been regular and valM in its inception, but to be 
 a continuing and existing lien under the statute. 
 Ct. App., 1872, Mushlitt v. Silverman, 50 N. Y. (5 
 Sick.) 360. 
 
 66. Under ch. 478, Laws of 1862, relating to 
 liens in Kings county, the claimant, in order to 
 continue his lien beyond 30 days after the time 
 specified in the notice for the commencement of 
 an action, given by the owner as therein provided, 
 must file an affidavit th^t an action has been 
 commenced ; and if such affidavit is not filed, the 
 lien is absolutely discharged. lb. 
 
 67. Where proceedings have been instituted 
 for the foreclosure of a mechanic's lien, the lien 
 is, by chap. 500, Laws of 1863, discharged, ipso 
 fad.0, at the expiration of one. year, unless, be- 
 fore that time, it is continued by order of the 
 court in which the proceedings are pending, and 
 a new docket is made stating that fact. The 
 court is invested with no discretion to continue 
 
 it after the year has expired, nor is any order 
 discharging it necessary. N. Y. C. P., 1870, 
 Stone V. Smith, 3 Daly, 213. 
 
 68. The right .given by the Mechanics' Lien 
 Law, to the owner of premises affected by a 
 lien, to require the lienor, upon ten days' notice, 
 to file a statement of his claim in court, neces- 
 sarily carries with it the authority to make the 
 right effectual; and, upon the failure of the 
 lienor to appear at the time specified, the lien 
 should be discharged. N. Y. C. P., Sp. T., 1869, 
 Carroll v. Cougldin, 3 Daly, 179. 
 
 69. The owner of the premises, having his 
 remedy by notice, cannot maintain an action in 
 equity to set aside the lien. N. Y. C. P., Sp. T., 
 1869, Spratt v. Nicholson, 8 Daly, 182. 
 
 70. Action to enforce. Where a firm con- 
 tracted to furnish materials for a building, and 
 after the completion of part of their contract, 
 all the material then supplied having been paid 
 for, one partner absconded and the contract was 
 abandoned, but was subsequently resumed and 
 completed by the remaining partner under a 
 special arrangement between him and tlie con- 
 tractor and owner; — Held, that such partner 
 might, in his own name and without joining his 
 co-partner, enforce his lien for material furnished 
 under the new arrangement by himself indi- 
 vidually. Ct. App., 1874, Hubbell v. Schreyer, 
 56 N. Y. (11 Sick.) 604. 
 
 71. Persons who acquire liens, other than me- 
 chanics' liens, after tlie commencement of pro- 
 ceedings to foreclose a mechanic's lien, are not 
 necessary parties to the suit. N. Y. C. P., Sp. 
 T., 1871, Suydam v. Holden, 11 Abb. N. S. 329, n. 
 
 72. A sub-contraotor who furnishes materials 
 pursuant to a contract made with one whom he 
 supposed to be sole contractor for a building, 
 may properly file his notice against him alone, 
 and upon afterward learning that another person 
 was interested in the contract, may make the 
 latter also a party defendant to an action to 
 foreclose the lien, and if he fails to answer, the 
 action may properly proceed to judgment 
 against the contractors and the owner. Sup. 
 Ct., 1876, Brown v. Welch, 5 Hun, 582. 
 
 78. In such action the plaintiff should be per- 
 mitted to show that, prior to filing his lien, such 
 owner and contractor stated to him that the 
 latter was sole contractor. lb. 
 
 74. A sub-contractor for the repair of a build- 
 ing may enforce the primary obligation founded 
 upon the original agreement, including the stat- 
 utory liability under the mechanic's lien law, 
 and the promissory note of a third party col- 
 lateral to it, simultaneously by legal proceedings 
 adapted to the respective remedies, and recover 
 separate judgments upon each ; but he can have 
 only one satisfaction. Ct. App., 1874, Oambling 
 V. Haight, 59 N. Y. (14 Sick.) 354. 
 
 75. Where a lien is claimed for materials fur- 
 nished in the erection of a number of contigu- 
 ous buildings, which, together with the land 
 whereon they stand, are all owned by the same 
 person, they may, for the purposes of the lien, 
 be considered as one building, and the claim 
 against all embraced in a single proceeding. Ct. 
 App., 1873, Moran v. Chase, 52 N. Y. (7 Sick.) 
 846. 
 
 76. Notice to Uenors. The notice required 
 by statute to be given to all persons who have 
 filed notices of lien, in order to commence pro- 
 ceedings to foreclose a lien, must state the liens 
 filed by others than the one commencing the 
 proceedings, and the times of filing ; and the- 
 omission to state such liens and times of filing 
 is a failure to comply with the statute in matter 
 
462 
 
 MECHANIC'S LIEN. 
 
 of substance, and is fatal to the proceeding, un- 
 less waived by a general appearance. N. Y. C. 
 F. Cliambers, 1875, Otis Brothers {/■ Co. v. Voorhis, 
 49 How. 273. 
 
 77. A complaint in an action to foreclose 
 a mechanic's lien must state all the facts, which, 
 under the statute, constitute the cause of action. 
 It is not suflBcient merely to allege that the no- 
 tice conformed to the statute, but the notice 
 itself should be set out or its substance be given. 
 N. Y. Supr. Ct., 1873, Kechler v. Stumme, 36 N. 
 Y. Supr. (4 J. & Sp.) 337. 
 
 78. Reference. In an action under ch. 600, 
 Laws, 1863, to foreclose a mechanic's lien, if the 
 owner of the premises admits that a certain 
 amount is due from him under the building con- 
 tract, and that amount is insufScient to satisfy 
 the claims of all the parties, so that the question 
 of priority of liens becomes material, and the 
 validity of some of the liens may be involved, 
 a reference of the issues is of the same nature 
 as a reference in mortgage cases as to surplus 
 moneys, and the referee may report upon it in a 
 summary manner, so as to enable the court to 
 distribute the fund to the parties entitled to it. 
 N. Y. C. P., 1873, Hubbell v. Schreyer, 14 Abb. 
 N. S. 284 ; S. C, 4 Daly, 362. 
 
 79. The report of the referee in such a case 
 does not, when .filed, stand as the decision of 
 the court, but, under Supreme Court rule 39, 
 eight days must elapse after service of notice of 
 the filing of the report, that exceptions may be 
 filed and served ; which exceptions, if taken, 
 must be heard and passed upon by a judge at 
 the Special Term, before the report is confirmed 
 and becomes absolute. lb. 
 
 80. But, upon the reference of a case where 
 an issue is formed by the owner's denial that 
 there is anything due from him to the con- 
 tractor, or by his interposition of any other de- 
 fense, the report of the referee when filed 
 stands as the decision of the court, and can 
 be reviewed only on appeal to the General 
 Term, brought within 10 days after the entry of 
 judgment on the report. lb. 
 
 81. Issues of fact upon material allegations of 
 the complaint in an action for the foreclosure of 
 a mechanic's lien, involving the existence of the 
 lien, the liability of the owner, or the existence 
 of a fund in his hands, and the like, are to be 
 tried in the same manner as issues in equitable 
 actions ; and it seems that, under the act of 1863, 
 the court might order those issues to be tried 
 by a referee. lb. 
 
 82. Judgment. A judgment for the fore- 
 closure of a mechanic's lien, under the act re- 
 lating to the city of New York, rendered on re- 
 port of a referee after the expiration of one 
 year from the time of filing the lien, will be 
 reversed on appeal, if it does not affirmatively 
 appear that the lien had been continued and a 
 new docket made, as required by sec. 11, ch. 
 600, Laws, 1863. N. Y. C. P., 1873, O'Donnell 
 V. Rosenberg, 14 Abb. N. S. 59 ; S. C, 4 Daly, 
 656. 
 
 83. Where, in a proceeding on a mechanic's 
 lien, the referee reports, simply directing a sale 
 of the premises, and a personal judgment is en- 
 tered against the owner thereon, the remedy is 
 by motion to correct the judgment so as to con- 
 form to the repoi-t, and not by appeal. Ct. App., 
 1873, Maran v. Chase, 62 N. Y. (7 Sick.) 346. 
 
 84. Personal judgment may be rendered in 
 favor of the claimant, in an action for the fore- 
 closure of a mechanic's lien, when the lien ex- 
 pires during the pendency Of the action. Sup. 
 Ct., 1875, Glacius v. Black, 4 Hun, 91. 
 
 85. The ceasing of the lien for want of an or- 
 der renewing it, under sec. 10, chap. 500, Laws 
 1863, destroys all recourse of the lienor to the 
 particular property described in the lien. If the 
 owner of the property is not personally liable to 
 the lienor, the proceeding as to him Is then at 
 an end and should be dismissed. N. Y. C. P., 
 1871, ScAo«/er v. Gardiner, i\ How. 243; S«C., 
 4 Daly, 56. See S. C, 47 N. Y. (2 Sick.) 404. 
 
 86. It would also be proper tor dismiss the pro- 
 ceedings as to such owner, after the lien has 
 been removed by the deposit of the amount of 
 the lien by the contractor with the county clerk, 
 under the provisions of the lien act ; the lienor's 
 remedy being then against the funds so depos- 
 ited, lb. 
 
 87. Where the court has acquired full juris- 
 diction of the controversy between the parties, 
 by service of notice, appearance, and pleadings 
 forming an issue upon the merits, before the 
 lien ceased, as between the lienor and a con- 
 tractor who is personally liable to him, the ceas- 
 ing of the lien does not affect the proceedings, 
 but a judgment upon the merits afterwards ren- 
 dered will be regular. lb. ; S. C, 47 N. Y. (2 
 Sick.) 404. 
 
 88. It is not irregular in such a case to enter 
 the judgment before argument of the excep- 
 tions to tlie referee's report. Supreme Court R. 
 39 (Old rule No. 32) does not apply to a refer- 
 ence " of the issues " in a lien proceeding, and 
 the exceptions taken therein are not to be heard 
 first at Special Term. lb. 
 
 89. A personal judgment against the party 
 personally liable, whether as contractor or own- 
 er, is proper under the mechanic's lien law for 
 tlie city and county of New York, as amended 
 in 1856. Ct App., 1874, Hallahan v. Herbert, 67 
 N. Y> (12 Sick.) 409 ; Aff'g S. C, 11 Abb. N. S. 
 326 ; 4 Daly, 209. 
 
 90. Under the mechanic's lien law relating to 
 New York city (ch. 500, Laws 1863), a court 
 having acquired jurisdiction, in a proceeding to 
 forclose a valid lien as to part of the debt, can 
 render a personal judgment for the whole 
 amount due against the owner, notwithstanding 
 the lien attached for only a part thereof because 
 not filed in time, or expired for want of renewal, 
 during the pendency of the action. N. Y. C. P., 
 1873, McGraw v. Godfrey, 14 Abb. N. S. 397; 
 Aff'd, S. C, 56 N. Y. (11 Sick.) 610. 
 
 91. Where materials are furnished to a con- 
 tractor upon the credit both of himself and the 
 owner, and a draft therefor drawn by the for- 
 mer upon the latter is accepted by the drawee, 
 a personal judgment may, in an action to en- 
 force the lien of the material-man, be rendered 
 against such owner. Ct. App., 1874, Subbell v. 
 Schreyer, 16 Abb. N. S. 300 ; S. C, 56 N. Y. (11 
 Sick.) 604; Rev'g S. C, 14 Abb. N. S. 284; 4 
 Daly, 362. 
 
 92. In favor of sub-contractor. In an 
 action to foreclose a mechanic's lien, in favor of 
 a- sub-contractor, in the city of Syracuse, where 
 the jury find that the sum due tlie plaintiff is 
 less than the balance between the amount 
 earned by the contr&Btor and the payments 
 made to him, and that the contractor has been 
 prevented from completing the contract by the 
 act of the owner, judgment should be rendered 
 for the plaintiff for the amount found due him. 
 Sup. Ct., 1876, Drake v. O'Donnell, 49 How. 26. 
 
 93. For conveyance of land. In an ac- 
 tion to foreclose a lien for work and materials, 
 tlie court cannot enforce performance of an 
 agreement to convey land in part payment 
 therefor ; nor where the plaintiff has not shown 
 
MEMORANDUM— MOBS, INJURIES BY. 
 
 463 
 
 a refusal after demand or an inability on the 
 part of the defendant to convey, can it give 
 judgment for the value of such land. Ct. App., 
 1874, Dowdney v. McCollom, 48 How. 842 : S. 0., 
 59 N. Y. (14 Sick.) 367. 
 
 94. Restoring lien. . Where the county 
 clerk has discharged the lien of record, in pur- 
 suance of an order of the Special Term, the 
 General Term on reversing sucli order, has 
 power to and should order the clerk to restore 
 the lien of record, and the order continuing it. 
 N. Y. Supr. Ct., 1871, McGuckin v. Coultet, 33 
 N. Y. Supr. (IJ. & Sp.) 328. 
 
 95. The sale. The judgment lienor may 
 have his specific remedy enforced by the judg- 
 ment, as in cases of foreclosure of mortgage, or 
 the judgment may be enforced by an execution 
 as provided by sec. 9 of the lien act of 1863 ; 
 and where the premises are so situated that 
 they cannot be sold in separate parcels, they 
 may be sold in one parcel. N. Y. C. P., Sp. T., 
 1871, Suydam v. Holden, 11 Abb. N. S. 329, n. 
 
 96. The proceedings being equitable, the pur- 
 chaser may be put in possession by aid of the 
 court, or he may be relieved from completing 
 his purchase for good cause. lb. 
 
 MEMORANDUM. 
 See Evidence; Frauds, Statute op. 
 
 MEEGBB. 
 
 1. Of cause of action. A cause of action 
 for a fraud in contracting a debt is merged in a 
 judgment, obtained by default, in an action 
 commenced by service of a summons for money 
 only without complaint, although the complaint 
 alleged such fraud. N. Y. Supr. Ct., 1871, Shu- 
 man V. Strauss, 34 N. Y. Supr. (2 J. & Sp.) 6 ; 
 Aff'd, S. C, 52 N. Y. (7 Sick.) 404. 
 
 2. Of contracts. A contract, which includes 
 a settlement of all accounts, when reduced to 
 writing and signed by the parties, merges all 
 previous contracts, understandings or expecta- 
 tions on the subject. Ct. App., 1867, Lee v. 
 Decker, 43 How. 479. 
 
 3. Of equitable estate. An equitable estate 
 becomes merged in a legal estate when both 
 unite in the same person, provided such estates 
 are co-extensive, and the owner intended they 
 should merge. Sup. Ct., 1875, Millard v. McMul- 
 lin, 6 Hun, 572. 
 
 4. A durable lease in fee of a farm does not 
 merge in an executory contract for the pur- 
 chase of the landlord's remaining interest, since 
 the latter gives no estate but a mere equity, 
 and that not co-extensive with the legal estate. 
 lb. 
 
 5. Of mortgage. Where a mortgagee of 
 real estate gave the bond and mortgage to his 
 daughter, who was the wife of the mortgagor, 
 designing thereby not to discharge the debt, but 
 to make it her separate property, and she died 
 without issue, leaving them in possession of her 
 husband, — Held, that the legal and equitable 
 estates were merged. Sup. Ct., 1862, Hackney 
 V. Vrooman, 62 Barb. 650. 
 
 6. Where mortgaged premises are sold under 
 a prior judgment, and the mortgagee subse- 
 quently takes a conveyance of the premises 
 from the purchaser, never having taken any 
 steps to redeerh from the sale, but still retaining 
 
 the mortgage, the lien of such mortgage, if to be 
 considered still in force at the time of such con- 
 veyance, becomes thereby merged and extin- 
 guished in tlie legal estate. Sup. Ct., 1872, Hill 
 V. Pixley, 68 Barb. 200. 
 
 MESNE PROFITS. 
 See Ejectment. 
 
 METROPOLITAN FIRE DEPARTMENT. 
 See New Yokk City. 
 
 METROPOLITAN POLICE. 
 See New Yobk City. 
 
 MILITIA AND MILITARY LAW. 
 
 As to enrolment, see cAs. 91 and 761, Laws of 1872 ; 
 cA. 386, iaawq/" 1874. 
 
 1. Court martial. The provision of sec. 6 of 
 art. 1 of the constitution, authorizing a party 
 accused of crime, before any court whatever, to 
 appear and defend by counsel, applies as well to 
 courts-martial as to other courts ; and paragraph 
 189 of the general militia regulations of this 
 State, which ignores this right, is unconstitution- 
 al and void. Ct. App., 1873, People ex rel. Gar- 
 ling v. Van AUen, 55 N. Y. (10 Sick.) 31. 
 
 MILLS. 
 See Watebcoubse. 
 
 MINOR. 
 See Infant. 
 
 MISDEMEANOR. 
 See Cbiminal Law. 
 
 MISJOINDER. 
 See PuBADiNO. 
 
 MISTAKE. 
 See Money Paid. 
 
 MOBS, INJURIES BY. 
 
 1. Notice to sheriff. In an action against a 
 county, under ch. 428 Laws of 1855, to recover 
 
464 MOHAWK RIVER— MONEY HAD AND RECEIVED. 
 
 the value of property destroyed by a mob, 
 wliere it appeared that the plaintiffs were ten- 
 ants In common of the property, and that some 
 of them had notice, several days before the as- 
 sembling of the mob, of threats and attempts to 
 be made to destroy the property, but did not 
 notify the sheriff of the county thereof, wliile 
 others of the plaintiffs had received no actual 
 notice and had no personal knowledge of the 
 tlireats, — Held, that the latter were not bound 
 by the notice to the oo-tenants, but were entitled 
 to recover the value of their shares. Sup. Ct., 
 1872, Loomis v. Board of Sups, of Oneida Co., 6 
 Lans. 269. 
 
 MOHAWK RIVEE. 
 
 1. Public rights in. The Mohawk river is 
 navigable in fact for commercial purposes, and 
 the title to its waters and bed is in the people of 
 the State ; and riparian owners along the 
 stream are not entitled to damages for any 
 diversion or use of the waters by the State, or 
 under its authority. Sup. Ct., Sp. T., 1873, Crill 
 V. City of Rome, 47 How. 398. 
 
 2. The right of tlie people is not limited to the 
 use of the waters for purposes of navigation, but 
 they may lease them to individuals, or divert 
 them for artificial navigation, or for other pub- 
 lic uses, such as for supplying a city with water, 
 lb. 
 
 3. The Oriskany patent was issued by the 
 captain general and governor of the colony of 
 New York, who possessed no greater power 
 than the sovereign who appointed- him, and that 
 was not sufficient to and did not pass the title to 
 the waters of the Mohawk to private citizens 
 named as patentees. lb. 
 
 4. At the revolution, the people of the State 
 became themselves sovereign, and in that char- 
 acter held the absolute right to all the navigable 
 waters and the soils under them, for their com- 
 mon use, and the State has since claimed and 
 exercised such right in respect to the Mohawk 
 river. lb. 
 
 6. Although an individual has for many years 
 enjoyed the use of waters drawn from the Mo- 
 hawk by means of a dam and an artificial chan- 
 nel, to supply his mill in the city of Rome, 
 claiming title under the Oriskany patent, he can- 
 not maintain an action to restrain that city from 
 taking the waters of the riyer above his dam to 
 supply its water works, as authorized by ch. 352, 
 Laws 1872. lb. 
 
 6. The erection of his dam was a nuisance, 
 and the continuance thereof could not, as against 
 the State, give him or his grantors a valid pre- 
 scriptive right to maintain the interference with 
 the public waters. lb. 
 
 MONET. 
 
 1. Cuirent money of the State of New York 
 includes United States legal tender notes, as well 
 as gold and silver coin. Sup. Ct., 1872, Strana- 
 han V. Youmans, 65 Barb. 392. 
 
 2. Pound sterling. The value of a pound 
 sterling of Great Britain, in gold coin of the 
 United States, is $4.84. lb. 
 
 MONEY HAD AND RECEIVED. 
 
 1. In general. One to whom a payment 
 should have been made, instead of another to 
 whom the money was actually paid, under a 
 claim by the latter of a right thereto, cannot 
 maintain an action against such other as for 
 money had and received. Com. App., 1872, 
 Rowe V. Bank of Auburn, 51 N. Y. (6 Sick.) 674. 
 
 2. A party owning land taken for a public im- 
 provement is not concluded by the decision of 
 commissioners in awarding compensation to an- 
 other party who is not entitled thereto, but may 
 maintain an action against such other party to 
 recover the money paid him on such award. 
 Sup. Ct., Sp. T., 1870, Morning Side Park Case, 
 10 Abb. N. S. 338. 
 
 3. A town entitled to a share in money reim- 
 bursed to the county for excess of years service 
 of men furnished to the U. S. military service, 
 cannot maintain an action against another town 
 to which such money has erroneously been paid 
 by the county, to recover it as money paid to its 
 use. Ct. App., 1873, Hathaway v. Town of 
 Homer, 64 N. Y. (9 Sick.) 665 ; Rev'g S. C., 5 
 Lans. 267. 
 
 4. If the county board erred in its disposition 
 of the fund, its obligation to the town entitled 
 thereto is not discharged, but the receipt by 
 such other town does not create any legal lia- 
 bility to pay it over. lb. 
 
 5. Bounty money. Where D procured W 
 to be mustered into the military service as a 
 substitute for S, and in consideration tliereof S 
 agreed to pay him $500, and that he should have 
 all the bounties to which himself or the substi- 
 tute would be entitled, and W also assigned to 
 D all the bounties coming to him ; but the town 
 to which W was credited afterward resolved to 
 pay to each volunteer and substitute $425, and 
 S applied to the town for a balance due on such 
 bounty, claiming it as his own, and it was al- 
 lowed on his affidavit, and paid, — Held, that D 
 had no title to the money, and could not recover 
 it from S in an action therefor ; and that as S 
 claimed the money as his own, the payment to 
 him did not affect the rights of W or his as- 
 signee against the town. Ct. App., 1874, Decker 
 V. Salizman, 69 N. Y. (14 Sick.) 275 ; Aff'g S. C, 
 1 Hun, 421. 
 
 6. Profits retained. One who permits an- 
 other to operate in his name, through his broker, 
 in stock speculations, the profits of which are 
 credited to his account by such broker, is liable 
 to account for the profits of such operations to 
 the one so using his name, and if he refuses to 
 pay over the same, the latter may recover the 
 amount thereof in an action for money had and 
 received. Ct. App., 1872, Jaycox v. Cameron, 49 
 N. Y. (4 Sick.) 645. 
 
 7. Received by firm. Where one having a 
 power of attorney to collect a demand, with di- 
 rections to remit the proceeds to one P, remitted 
 instead to the firm of which P was a member, 
 and it did not appear that the latter knew of the 
 provision in the power of attorney, or ever as- 
 sented that the money should be paid to him, or 
 that lie received any part of it, or had anything 
 to do with it personally, — Held, that he could 
 not be made to account for it individually. Com. 
 App., 1873, Isham v. Phelps, 54 N. Y. (9 Sick.) 
 673. 
 
 8. Received by surrogate. A party en- 
 titled to moneys paid to and left in the hands of 
 a surrogate, pending a litigation in relation 
 thereto, and by him delivered, with moneys be- 
 longing to other estates, to his successor in of 
 
MONEY PAID. 
 
 465 
 
 flee, and by the latter paid out on claims pre- 
 Bented, without inyestigation as to the ownership 
 of the funds, although he had the means in his 
 hands of ascertaining it, can maintain an action 
 against the surrogate to recover the sum to 
 which he is entitled. Sup. Ct, 1874, Disbrow v. 
 Mills, 2 Hun, 132. 
 
 9. The deposit of the various funds so re- 
 ceived together in one account, does not affect 
 the right of the party to the funds belonging to 
 himself, but they can be followed so long as 
 their identity can be traced. lb. 
 
 10. Retained to pay lieu. A grantor with 
 covenants of warranty, who suffers his grantee 
 to retain a part of the purchase-money to pay a 
 judgment lien, if he himself afterward pays off 
 and satisfies the incumbrance, can recover the 
 amount so retained from his grantee. N. T. 
 Supr. Ct., 1874, Beading v. Grau, 37 N. Y. Supr. 
 (6J. &Sp.)79. . 
 
 11. Where, in closing up a contract for the 
 sale and conveyance of land free of all incum- 
 brances, the purchaser was allowed to retain a 
 certain portion of the purchase-money to satisfy 
 a supposed hen on the premises, consisting of an 
 assessment for a public park, which assessment 
 had been previously confirmed by the Supreme 
 Court, but, before the purchaser went to pay 
 such assessment, the orders confirming it were 
 set aside, -—Held, that the assessment was not a 
 lien, and if the parties supposedit was, there was 
 a mistake of fact, and the vendor was entitled to 
 recover the amount so retained, notwithstanding 
 a larger sum was afterward assessed on the 
 premises for the same improvement and paid by 
 the purchaser. N. Y. Supr. Ct., 1874, Lounsbury 
 v. Potter, 37 N. Y. Supr. (5 J. & Sp.) 57. 
 
 12. A contractor who, in paying off laborers 
 hired by a sub-contractor who has absconded, 
 retains in pursuance of a custom the amount 
 due from such laborers to boarding-keepers or 
 persons who had sold goods to them, is liable to 
 the latter therefor as for money had and received 
 to their use. Sup. Ct., 1875, McCafferty v. 
 i>ecicr,3Hun, 604. 
 
 18. Trust funds misappropriated. Where 
 the funds of a corporation are appropriated by its 
 trustees to settle suits against themselves to re- 
 strain them from fraudulently issuing stock, if 
 the person receiving the money knows that it 
 belongs to the corporation, he is liable therefor 
 in an action to recover it back. Sup. Ct., 1875, 
 Erie Ry. Co. v Vanderbilt, 5 Hun, 123. 
 
 14. Such person cannot defeat an action by the 
 corporation to recover back such money on the 
 ground that no privity of relation existed be- 
 tween himself and the corporation. lb. 
 
 16. Nor is it any defense to such action that 
 the corporation is inpari delicto, because its name 
 was used in committing the fraud. lb. 
 
 MONEY PAID. 
 
 1. By compulsion. If a party has in his 
 possession property or goods belonging to an- 
 other, and refuses to deliver the same to that 
 other unless the latter will pay him a sum of 
 money to which he is not entitled, and in order 
 to obtain possession he pays that sum, such pay- 
 ment is by compulsion and may be recovered 
 back. Ct. App., 1875, Scholey v. Mumford, 60 N. 
 Y. (15 Sick.) 498. 
 
 2. Where the legal representatives of a de- 
 ceased executor refused to deliver to the surviv- 
 ing executor bonds belonging to that estate 
 
 unless he would pay them a certain sum, claimed 
 by them as commissions due to the deceased 
 executor, and he, disputing the claim, paid it 
 after the surrogate had decided that they were 
 entitled to it, and obtained the bonds, and after- 
 ward on his application the surrogate granted a 
 re-hearing and reversed his decision, — Held, that 
 the payment was not voluntary, and the money 
 could be recovered back. lb. 
 
 3 One who has been compelled to pay to a 
 bona fide holder, a note given by him to a life 
 insurance company, for premium on a policy to 
 be issued to him containing special provisions, 
 which the company have refused to issue, can 
 maintain an action against the company to re- 
 cover back the money so paid. Sup. Ct., 1871, 
 Tim V. Phanix Mut. L. Ins. Co., 6 Lans. 198. 
 
 4. A vendor of stock who is obliged to pay 
 debts of the corporation incurred after the sale, 
 by reason of the failure of his vendee to use a 
 power of attorney, delivered with the certificates, 
 to make the transfer upon the books of the com- 
 pany, may recover of such vendee the amount 
 so paid. Ct. App., 1873, Johnson v. Underhill, 52 
 N. Y. (7 Sick.) 203. 
 
 5. Under duress of goods. A person who 
 pays money under protest, in order to get pos- 
 session of his own property, which another has 
 in his possession, claiming a lien thereon and 
 refusing to deliver it up until payment of the 
 lien, can maintain an action to recover it back 
 as money extorted by duress of the goods, if 
 such claimant had no right to the sum so paid. 
 Ct App., 1874, Briggs v. Boyd, 56 N. Y. (11 
 Sick.) 289 ; Aff 'g S. C., 65 Barb. 197. 
 
 6. Exacted for joining in composition. 
 Where a creditor insists upon and receives from 
 his debtor, as a condition of joining in a compo- 
 sition deed, a note for the difference between the 
 amount agreed by the deed to be paid and the 
 amount of his debt, and transfers it, before ma- 
 turity, to a bona fide holder for value, the debtor 
 on paying the same to such holder may recover 
 back the amount so paid from the creditor who 
 wrongfully exacted the note, in an action for 
 money paid out to his use. N. Y. C. P.,, 1875, 
 Gilmour v. Thompson, 49 How. 198. 
 
 7. Paid on execution. A purchaser in good 
 faith, without actual knowledge, at a sale under 
 a void execution, may recover back the money 
 paid by him from the plaintiff in execution, who 
 procured the sale and received such money with 
 knowledge at the time that the purchaser would 
 acquire no title. Ct. App., 1878, Schwinger v. 
 Hickoh, 53 N. Y. (8 Sick.) 280. 
 
 8. A factor who, on service of an attachment 
 on him, by mistake informs the sheriff that he 
 has a balance in his hands belonging to the at- 
 tachment debtor suflScient to pay the debt, and 
 thereby prevents the sheriff from levying on spe- 
 cific property in his hands, and who afterward 
 pays a check drawn on him by the debtQr which 
 he had previously told the holder was good and 
 would be paid, and also pays the attachment 
 debt, cannot on discovering his mistake recover 
 back from the attachment creditor the amount 
 so paid in excess of the balance due him from 
 the debtor. N. Y. Supr. Ct., 1874, Duncan v. 
 Berlin, 38 N. Y. Supr. f6 J. & Sp.) 31 ; Aff'd, S. 
 C.,60N. Y. (15 Sick.) 151. 
 
 9. Induced by fraud. A party who is in- 
 duced by false representations in respect to the 
 validity of a claim against the U. S. government, 
 and the probability of its payment, to purchase 
 and pay for it, can maintain an action to recover 
 back the purchase-money paid. Sup. Ct., 1872, 
 Shedd V. Montgomery, 61 Barb. 507. 
 
466 
 
 MONEY PAID. 
 
 10. One who purchases stocks, paying for them 
 by giving the vendor credit upon an existing 
 account, but, on discovering a fraud in the sale 
 returns or offers to return them to the latter, 
 will be remitted to his original right as to the 
 account, but cannot in an action for the fraud, 
 recover the amount of such credit as for money 
 paid. Ct. App., 1872, Degraw v. Elmore, 50 N. 
 Y. (5 Siek.) 1. 
 
 11. On goods not purchased. Where, on 
 a sale of a stock of dry goods to one unskilled 
 in the business, it was agreed that no damaged 
 goods were to be included in the inventory, but 
 the vendors knowingly included such goods, and 
 the vendee, some six weeks after taking posses- 
 sion, had the stock examined by an experienced 
 merchant, selected out the damaged goods and 
 notified the vendor to remove them and refund 
 the money paid therefor, — Held, that there was 
 no acceptance of the damaged goods, and that 
 the vendee might recover the money so paid 
 without offering to return the whole stock. Ct. 
 App., 1872, Vernol v. Keeler, 47 N. Y. (2 Sick.) 674. 
 
 12. For stock not delivered. A party 
 who pays money to the president of a company, 
 in payment for stock of the company, which 
 the latter undertakes to procure for him, can 
 maintain an action against such president to 
 recover back the money, if the latter never trans- 
 fers such stock to him, nor gives him notice that 
 he has got it for him, but continues to manage 
 and control it as his own. Sup. Ct., 1875, Weller 
 V. TuthUl, 4 Hun, 811. 
 
 18. On altered check. A bank which cer- 
 tifies a check that has been wrongfully altered by 
 changing the name of the payee, date and 
 amount, and afterward pays it, can recover back 
 the amount in an action therefor as money paid 
 under mistake. Ct, App., 1874, Marine Nat. Bk. 
 v. National City Bk., 59 N. Y. (14 Sick.) 167 ; 
 Rev'g S. C, 36 N. Y. Supr. (4 J. & Sp.) 470. 
 
 14. Money paid by a bank upon a check which 
 has been fraudulently altered to a larger amount 
 after it had been presented and certified, may 
 be recovered back from the bank receiving such 
 payment, where both banks acted under a mis- 
 take as to its genuineness, and neither was guilty 
 of greater negligence than the other. N. Y. 
 Supr. Ct, 1873, National Bk. of Commerce v. 
 National Mech's Bkg. Association, 46 How. 374 ; 
 S. C, 35 N. Y. Supr. (3 J. & Sp.) 283 ; Aff'd, 55 
 N. Y. (10 Sick.) 211. 
 
 15. On forged paper. A party who pays 
 commercial paper without inspection, or without 
 opportunity for inspection, is bound to use due 
 diligence in making the inspection as soon as 
 he has an opportunity, and in giving notice if he 
 discovers it to be forged, but his failure to do 
 so will not preclude him from recovering back 
 the money paid, unless the party receiving pay- 
 ment is prejudiced by his neglect. Ct App., 1874, 
 Allen V. Fourth Nat. Bank, 59 N. Y. (14 Sick.) 12. 
 Aff'g S. C.,37 N. Y. Supr. (5 J. & Sp.) 187. 
 
 16. Where an arrangement existed between 
 bankers that one should take up paper drawn on 
 the other, and that the latter on being informed 
 of the amount so taken up should give a check 
 for it and receive the paper, and if, upon inspec- 
 tion, any of it proved not good, should be re- 
 imbursed, and a certificate of deposit purporting 
 to be drawn by the latter banker in the hands 
 of the former for collection was included in the 
 statement of the amount taken up, and was so 
 paid, but the latter banker did not discover 
 that it was forged so as to give notice thereof until 
 after banking hours on that day,— flisW, that the 
 money so paid might be recovered back. lb. 
 
 17. If the drawee of a forged bill or check 
 pays it to a bona fide holder he thereby admits its 
 genuineness, and cannot recover back the money 
 so paid, even though the forgery is conclusively 
 proved. Sup. Ct, 1863, Salt Springs Bank v. 
 Syracuse Savings Inst., 62 Barb. 101. S. P., Nat. 
 Park Bank \. Ninth Nat. Bank. 46 N. Y. (1 Sick.) 
 77 ; Rev'g S. C, 55 Barb. 87; 7 Abb. N. S. 120 ; 
 and Same v. Fourth Nat. Bani, id. ; Rev'g S. C, 
 7 Abb. N. S. 138. 
 
 18. If a draft, which has been stolen from the 
 mail and the indorsement of the payee forged 
 thereon, is paid by the drawee, in ignorance of 
 the theft and forgery, to a holder who does 
 not disclose the fact that he is acting merely 
 as. agent, such drawee can recover back the 
 money from the person to whom he paid it, even 
 though the latter may have paid it over to his 
 principal before demand. Com. App., 1873, 
 Holt Y.Ross, 54 N. Y. (9 Sick.) 472 ; Aff'g S. C, 
 59 Barb. 554. 
 
 19. Parties who loan money to brokers on 
 collateral securities, giving their certified checks 
 on a bank for the amount, which the borrowers 
 deposit as money with other funds in another 
 bank from which they had previously obtained 
 a call loan on similar security, such checks being 
 received in the ordinary course of business, col- 
 lected and passed to the credit of the depositors, 
 the loan satisfied out of such deposits and the 
 collaterals surrendered, cannot, on afterward as- 
 certaining that the securities received by them 
 were forged, maintain an action against the bank 
 to recover back the money paid on their checks. 
 N. Y. Supr. Ct. 1878, Justh v. National Bank of 
 the Commonwealth, 45 How. 492 ; S. C, 36 N. Y. 
 Supr. (4 J. & Sp.) 273 ; Aff'd, S. C, 66 N. Y. (11 
 Sick.) 478. 
 
 20. One who purchases a forged note, by giv- 
 ing in exchange his own promissory note for the 
 amount, may, after payment of a judgment 
 against him on his own note at suit of a holder 
 for value, maintain an action against his vendor 
 and recover the amount of his own note and in- 
 terest, with the costs of a suit (of which the 
 vendor had notice) to establish the genuineness 
 of the note purchased, but not the costs of his 
 unsuccessful defense on his own note. Ct. App., 
 1871, Whitney v. National Bank of Potsdam, AS 
 N. Y. (6 Hand,) 308. 
 
 21. A person from whom money has been ille- 
 gally obtained, as by sale of a forged bond and 
 mortgage, knowing it to be such, and paid over 
 by the party so obtaining it on his precedent 
 debt, which debt is not discharged, nor any 
 security therefor parted with by reason of such 
 payment, can, after notice and demand, main- 
 tain an action to recover the same back from 
 the party to whom it is so paid. Sup. Ct, 
 1875, Stephens y. Board of Education of Brooklyn, 
 3 Hun, 712. 
 
 22. Illegal charges against county. An 
 action will lie in favor of a county to recover 
 back moneys paid upon an account not legally 
 chargeable to the county, although audited and 
 allowed by the county board of supervisors. 
 Such a payment is not a voluntary act of the 
 county, but an unauthorized act of its agents. 
 Ct App., 1875, Board of Supervism-s of Richmond 
 Co. V. Ellis, 59 N. Y. (14 Sick.) 620. 
 
 23. Money allowed and paid by a board of su- 
 pervisors to one of their number, for charges 
 which are not legal charges against the county, 
 such as charges at $5 per day for services 
 on committees and the like, although volunta- 
 rily paid with knowledge of the facts, can be 
 recovered back in an action by the county, 
 
MONEY PAID. 
 
 467 
 
 on the ground that it was fraudulently obtained. 
 Sup. Ct., 1874, Board of Supervisors of Richmond 
 Co. V. Van Clief, 1 Hun, 454. Aff'd, 60 N. Y. 
 (15 Sick.) 645. 
 
 24. On illegal contract. A party to a con- 
 tract in violation of a law or of public policy, 
 capable of execution by the acts of the parties 
 and in which he is in in pari delicto, cannot, after 
 he has paid money in part performance thereof, 
 refuse to perform what remains to be done, re- 
 voke and nullify what has been actually per- 
 formed, from which he souglit or expected to 
 derive benefit or advantage, and may liave done 
 so, and recover back the amount paid, on the 
 ground that he has repented of the illegal act. 
 DwiOHT, C, dissents. Com. App., 1874, Knowl- 
 ton V. Congress and Empire Spring Co., 67 N. Y. 
 (12 Sick.) 618. 
 
 25. The mere refusal or neglect of such party 
 to further perform without assigning the illegal- 
 ity of the contract as a reason therefor, is not 
 evidence of repentance on his part, nor does it 
 raise any presumption thereof. lb. 
 
 26. A trustee of a corporation who is active 
 in inducing sudi corporation to enter into an 
 illegal scheme for increasing its capital stock, 
 by issuing certificates for prepaid stock on pay- 
 ment of 80 per cent, of its par value, and 
 who subscribes with others for auoh stock, is in 
 pari delicto with the corporation, and of the two 
 is the more culpable, and cannot recover back 
 the money paid, even though the contract on tlie 
 part of the corporation was ultra vires. lb. 
 
 27. Where such subscriber permits his stock 
 so subscribed for to be forfeited, in pursuance 
 of the terms of the subscription, for non-pay- 
 ment of the instalments subsequent to the first, 
 and the corporation afterward reduces its capi- 
 tal to the original amount, proposing to repay 
 the amounts paid for tlie new stock, such sub- 
 scriber can claim no benefit from such reduc- 
 tion ; especially where the reduction is made in 
 pursuance of the act by which the company was 
 incorporated, that not being a rescission or revo- 
 cation of the proceedings for the increase, but 
 a recognition of the validity thereof. lb. 
 
 28. Paid when intoxicated. Moneys ob 
 tained from a man wlien he is in such a state of 
 intoxication as to be incapable of business, or 
 of knowing what he is doing, or the force of 
 his acts, may be recovered back in an action for 
 that purpose ; but if he voluntarily pays a debt 
 or claim made against him for liquor or other 
 property sold, he cannot, ordinarily, maintain 
 an action for the recovery of the money paid. 
 Sup. Ct., 1873, Hayes v. Huffstater, 65 Barb. 530. 
 
 29. Under mistake of law. Where there 
 is no mistake as to the provisions of a judgment, 
 but only as to their legal effect, and money is 
 voluntarily paid thereon to one who claims to 
 be thereby entitled to it, it cannot be recovered 
 back. Com. App., 1872, Buffalo, N. Y. ^ Erie 
 R. R. Co. V. Stevens, 51 N. Y. (6 Sick.) 659. 
 
 30. Where a debtor agreed to pay the differ- 
 ence between gold and legal tender on his debt, 
 in case the U. S. Supreme Court in a suit then 
 pending should declare the legal tender act in- 
 valid as to prior contracts, and did pay it accord- 
 ingly upon such a decision being made, — Held, 
 to have been voluntarily made on ■ a claim of 
 right and under no mistake of fact, and the 
 money could not be recovered back, although the 
 same court afterward made a different decision 
 on that point. ' Ct. App., 1874, Doll v. Earle, 59 
 N. Y. (14 Sick.) 638 ; Aff'g S. C, 65 Barb. 298. 
 
 31. Under mistake of facts. Money paid 
 as rent to the receiver of a judgment debtor, by 
 
 tenants holding under such debtor in her capac- 
 ity as administratrix of an estate, in reliance 
 upon the representations of such receiver that 
 he was entitled to collect the rents as receiver, 
 and witliout knowledge on their part of the na- 
 ture of the proceedings by which he was ap- 
 pointed, or of the extent of his authority, — 
 Held, to have been paid under. a mistake of fact, 
 and to be recoverable back by the tenants, or by 
 their assignee. Brooklyn City Ct., 1872, Barker 
 V. Clark, 12 Abb. N. S. 106. 
 
 32. Where the trustee of a school district 
 drew an order upon the supervisor of tlie town 
 for the balance of money due his district, paya- 
 ble to the order of his daughter, to whom such 
 district was indebted for teacher's wages, and 
 the daughter indorsed it to her mother, who, on 
 presenting it to the supervisor, stated that she 
 had examined the records in tiie town clerk's 
 office, and found the amount due the district to 
 be a sum certain, which amount was paid her, 
 and by lier passed over to her daughter, — Held, 
 that the trustee, not being bound by the state- 
 ments of his wife, and not having received any 
 of the money himself, was not liable to refund 
 the same, although, in fact, none had been ap- 
 portioned to his district. Com. App., 1873, Post 
 V. Smith, 54 N. Y. (9 Sick.) 648. 
 ■ 33. Where a bank having received a note for 
 collection, sent it to a correspondent for the 
 same purpose, and not receiving notice of its 
 dishonor, although one had been sent, supposed 
 that it had been paid, and remitted the amount 
 thereof to the owner as collected, — Held, that 
 such bank could recover back the money so paid 
 under a mistake of facts, even though the mis- 
 take arose from a want of care on its part. Ct. 
 App., 1871, Un. Nat. Bank of Troy v. Sixth Nat. 
 Bank ofN. Y., 43 N. Y. (4 Hand,) 452. 
 
 34. It is no defense to such action, that the 
 owner of the note, on receiving notice of pro- 
 test, had been paid the amount of the note by 
 an indorser, and on receiving the money from 
 the bank repaid the indorser, in the absence of 
 proof that the indorser was not still liable and 
 responsible to him. lb. 
 
 35. Overpaid for land. A purchaser of 
 land at a stipulated price per acre, who pays for 
 the number of acres appearing by a survey 
 which is afterwards discovered to be erroneous, 
 can, on discovery of the error, maintain an ac- 
 tion against his vendor to recover back the 
 excess paid by him, with interest from the time 
 of payment. Sup. Ct., 1875, Graves v. Brinker- 
 hoff, 4 Hun, 305. 
 
 36. The fact that the vendor afterwards sold 
 the remainder of the tract from which such land 
 was taken, in bulk, relying upon such erroneous 
 survey, will not prevent a recovery in such 
 action. lb. 
 
 37. In such a case the purchaser can maintain 
 an action to recover back the amount overpaid, 
 even though he has in the meantime sold the 
 land. Sup. Ct., 1871, George v. Tallman, SLans. 
 392. 
 
 38. The acceptance, by a vendee of lands, hav- 
 ing a contract for their purchase at so much per 
 acre, of a deed which recites the consideration 
 at a certain sum in gross and the land as so 
 many acres more or less, is not inconsistent with 
 a reservation by the parties of a right to fix the 
 amount of purchase-money by a subsequent sur- 
 vey; and such vendee may recover any excess 
 of purchase-money so ascertained to have been 
 paid, over and above the amount due by the 
 contract, Ct. App., 1873, Murdock v. Gilchrist, 
 52 N. Y. (7 Sick.) 242. 
 
468 
 
 MONEY PAID. 
 
 89. Taxes paid. Where a lot owner who 
 had paid the Croton water charges on her lot 
 and received a receipt therefor, correctly de- 
 scribing her lot as ward number 4,509, presented 
 such receipt at the ofllce of the tax commission- 
 ers to a clerk employed therein for that purpose, 
 requesting him to prepare a bill for the taxes 
 imposed on the premises described in the receipt, 
 and lie, by mistake, gave her a bill for the taxes 
 on the lot designated as ward number 4,510, 
 which she paid, — Held, that she could recover 
 back from the city the amount so paid. Sup. Ct., 
 1875, Dietrich v. Mayor, etc. ofN. Y. 5 Hun, 421. 
 
 40. Although moneys paid on a tax or assess- 
 ment, made under color of law and of lawful 
 authority, and while such assessment remained, 
 or was deemed valid, cannot be recovered back 
 simply on the ground that the tax was subse- 
 quently held invalid, or that the proceedings upon 
 which it was based were set aside, yet it may be 
 recovered back when paid involuntarily. Sup. 
 Ct., 1874, Dewey v. Board of Supervisors of Ni- 
 agara Co., 2 Hun, 392. Rev'd by Ct. App. 
 
 41. A payment made to a collector who holds 
 a warrant for its collection, cannot be considered 
 a voluntary payment. lb. 
 
 42. Where the defendants had paid over part 
 of the moneys collected to other officers as re- 
 quired by law, before the service of the writ of 
 certiorari on them, upon which the tax proceed- 
 ings were adjudged illegal, the tax-payer can 
 only recover so much as then remained in 
 their hands. lb. 
 
 43. A person who, in attempting to pay an 
 assessment upon his own lot, by mistake pays 
 that upon an adjoining lot, which is afterward 
 adjudged void, can recover the same back from 
 the city, notwithstanding the mistake arose from 
 a want of care on his part, and the defendant 
 could not be lestored to its original position by 
 paying back the money. Sup. Ct., 1874, Mayer 
 T. Mayor, etc. of New York, 2 Hun, 306. 
 
 44. STegUgence in making a mistake and 
 paying more money than was due, does not 
 prevent the party paying from recovering back 
 the money, if the payee has not been preju- 
 diced. Ct. App., 1871, Duncan v. Berlin, 11 
 Abb. N. S. 116 ; S. C, 46 N. Y. (1 Sick.) 685. 
 
 46. On rescinded contract. Where, by 
 the laches of a vendee of lands, the remedy at 
 law is barred and the right to a specific per- 
 formance is forfeited, there can be no recovery 
 of what has been paid upon the contract. Ct. 
 App., 1872, Finch v. Parker, 49 N. Y. (4 Sick.) 1. 
 
 46. Where commissioners for bonding a town 
 in aid of a railroad, sell the stock subscribed for, 
 and authorize the purchaser to pay a sum 
 claimed by the railroad company for back 
 interest, it refusing to issue the stock until such 
 payment is made, and, at the time of entering 
 into the contract, they receive from the pur- 
 chaser a town bond for $500, and his check for 
 the balance, on an agreement that the check 
 shall not be presented until the stock has been 
 transferred on the books of the company, and 
 the purchaser accordingly pays the company 
 the amount claimed by it ; if the town subse- 
 quently commences an action to restrain the 
 transfer of the stock to such purchaser, he can 
 rescind the purchase, and maintain an action 
 against the town to recover back the amount 
 paid to the cpmpany, together with the value of 
 the bond and check ; the transaction being sub- 
 stantially the same as if he had. paid the whole 
 to the commissioners for the benefit of the town. 
 Hup. Ct., 1875, Gould T. Town of Oneonta, 3 Hun, 
 401. 
 
 47. Even if the commissioners had no author, 
 ity to sell except for cash, yet, the contract not 
 being immoral, criminal, or opposed to public 
 policy, the purchaser could recover what he 
 had paid under it. lb. 
 
 48. By surety on appeal. Where a surety 
 upon a bond, given to secure the release of a 
 vessel seized in proceedings in rem to enforce a 
 penalty, after judgment rendered against him 
 for the penalty, became surety upon an appeal 
 bond, conditioned to pay " all costs and ex- 
 penses" awarded against the appellant; and the 
 decree being affirmed and execution issued 
 thereon, paid the amount thereof, — Held, that 
 the payment wa^ made by him as defendant in 
 the decree and execution, and not as surety upon 
 the appeal bond, and at any rate, the damages 
 not being included in such bond, he could not 
 recover the amount so paid in an action on the 
 bond. Com. App., 1871, Gager v. Bahcock, 48 
 N. Y. (3 Sick.) 154. ■ 
 
 49. trnder protest. A party who voluntarily 
 pays an illegal claim, without duress of person 
 or of goods, or fraud on the part of the claimant, 
 although he makes such payment under protest, 
 cannot afterward maintain an action to recover 
 back the money so paid. Ct. App., 1875, Flower 
 V. Lanoe, 59 N. Y. (14 Sick.) 603. 
 
 50. Thus, one who pays a mortgage, execute(' 
 before the legal tender act, in gold, after the 
 passage of that act, upon demand of the 
 holder, at the same time making a written pro- 
 test that gold cannot legally be demanded, is 
 concluded thereby, and cannot recover back the 
 difference between gold and currency. lb. 
 
 51. The concealment by the claimant of the 
 fact that a bond had been executed subsequent 
 to the passage of that act, as additional security, 
 the money paid on which was to apply to the 
 mortgage, which bond might have been dis- 
 charged by payment of legal tender notes, does 
 not affect the rights of the parties, or give a right 
 of action to recover back such difference. lb. 
 
 62. On void contract. Money paid upon 
 a contract invalid by the statute of frauds, can- 
 not be recovered back so long as the other party 
 is ready and willing to perform on his part. Ct. 
 App., 1871, AUis V. Bead, 45 N. Y. (6 Hand,) 142. 
 
 53. Where a vendor of goods under a verba! 
 contract, after part payment made by the ven- 
 dee, sells and delivers them to a third party at 
 the request of the vendee, this, if not sufficient 
 to constitute an acceptance and receipt of the 
 property by the latter, so as to take the case 
 out of the statute of frauds, would, at least, pre- 
 clude him from making the sale the foundation 
 of an action to recover back the money paid, 
 lb. 
 
 64. For -worthless goods. A purchaser 
 who accepts and pays for, without examination, 
 grape roots delivered under an executory con- 
 tract of sale, which are done up in bundles and 
 covered with wrappers, and are in fact dead and 
 worthless when delivered, can maintain an 
 action against the vendor to recover back the 
 money paid therefor, if his failure to open and 
 examine them was caused by the acts and repre- 
 sentations of the vendor's agent. Sup. Ct.,1873. 
 Stone T. Frost, 6 Lans. 440. 
 
 MORTGAGE OF CHATTELS. 
 See Chattel Moktoaqi!. 
 
MORTGAGE OF REAL ESTATE. 
 
 469 
 
 MORTGAGE OF REAL ESTATE. 
 
 II. What is a mortgage ; validity 469 
 
 U. CONSTBUOTION ; PABTIE8 AND THBIB 
 
 BIGHTS 470 
 
 III. AbSIGNMENT AND BIGHTS OP ASSIGNEE. 471 
 
 IV. Recording ; priority 472 
 
 V. Discharge ; redemption. 473 
 
 VL SlAinTORY POREOLOSnRE 474 
 
 VII. FOEBCLOSURE BY ACTION 476 
 
 I. What is a mortgage ; validity. 
 
 1. Absolute deed. In order to make an 
 absolute conveyance a mortgage, it ia not 
 material that it should be made by the debtor, 
 or by the person claiming an equity of redemp- 
 tion, but a transfer of property as a security for 
 a debt, in whatever form or by whatever con- 
 veyance made, is a mortgage, and gives the 
 transferee only the rights of a mortgagee. Sup. 
 Ct., 1871, Carr v. Carr, 4 Lans. 314 ; AfE'd, S. 
 C, 52 N. Y. (7 Sick.) 251. 
 
 2. Thus, where D contracted for the purchase 
 of certain land, making a partial payment there- 
 on, and C, at his request, advanced the balance 
 of the purchase-money, and as security for the 
 repayment thereof took a conveyance of the 
 title from the vendor to himself, D taking pos- 
 session of the premises and occupying them as 
 his own, and making payments to C ; — Seld, 
 that C was a mere mortgagee. lb. 
 
 3. Where a vendee of lands in possession, being 
 unable to complete the purchase, procured 
 another to make the payments and take title, 
 holding the same as security for the amount 
 advanced and other claims against such vendee, 
 which the latter was to pay within a certain 
 time ; — Held, that the conveyance to the party 
 making the advances, by direction of the vendee, 
 constituted him a mortgagee of such vendee ; and 
 that the latter had an equity of redemption. 
 Ct. App., 1871, Stoddard v. Whiting, 46 N. Y. 
 (1 Sick.) 627. S. P., Genet v. Davenport, 56 N. 
 Y. (11 Sick.) 676. 
 
 4. Where D in consideration of a certain sum 
 advanced to her by E, executed and delivered 
 to E an absolute deed of real estate belonging 
 to her, running to E's wife as grantee, and E 
 at the same time executed and delivered to her 
 an instrument under seal, but not acknowledged 
 or recorded, whereby for value received he 
 agreed that D should have the sole and un- 
 divided use of the premises conveyed during 
 her natural life, and might sell the same at any 
 time, on paying him a certain sum; and the 
 wife of B, who had no knowledge of the trans- 
 action at the time, afterward joined with him in 
 conveying the property to a purchaser, who had 
 notice of the rights of D and immediately took 
 possession in disregard of her rights, — Held, 
 that the deed and agreement must be construed 
 together, and constituted in legal effect a mort- 
 gage ; that the wife of E by accepting the 
 deed was bound by the whole transaction, the 
 same as though she had originally authorized 
 it ; and that such purchaser took only the 
 rights of an assignee of the mortgage, and was 
 not entitled to the possession as against D. 
 Sup. Ct., 1872, Decker v. Leonard, 6 Lans. 264. 
 
 5. Where a testator devised real estate to his 
 widow for life, remainder to H T, his adopted 
 son and his heirs, charging the estate devised 
 with the support of W during life, and certain 
 other bequests, and declaring the same "a 
 mortgage on the estate so devised," and H T 
 died before the testator, but his son supported 
 
 W out of the estate, — Held, in an action for 
 partition by an heir of the testator, that whether 
 the devise lapsed or not upon the death of H T 
 was immaterial, since the money expended by 
 his son for the support of W was a lien on the 
 real estate or the proceeds thereof. Sup. Ct.. 
 1876, Thurber v. Chambers, 4 Hun, 721. 
 
 6. A person who had commenced a negotiation 
 for the purchase of land, being unable to com- 
 plete it, requested another to take it, which she 
 did, receiving a deed in her own name, and 
 agreeing to convey to the former wlien he 
 should make certain payments, — Held, that this 
 constituted a conditional sale and not a mort- 
 gage, and that he possessed no right of redemp- 
 tion. Ct. App., 1871, Hill V. Grant, 46 N. Y. 
 (1 Sick.) 496. 
 
 7. Validity; effect of alteration. If a 
 mortgage given by a wife to secure the debt 
 of her husband, which by mistake describes 
 property not belonging to her, is altered at the 
 request of the mortgagee, in the presence and 
 by the consent of the husband, so as to describe 
 the property of the wife, but without her knowl- 
 edge or consent, it is thereby destroyed and 
 annulled, and cannot be enforced against her. 
 Sup. Ct., 1872, Marcy v. Dunlap, 5 Lans. 365. 
 
 8. It seems the mortgagee could not maintain 
 an action against her to have the mortgage re- 
 formed, she being a mere surety. lb. 
 
 9. Consideration. A mortgage given by a 
 married woman on her separate property, in 
 payment of a note given by her husband for 
 money borrowed for use and used by him in 
 improving such separate property, upon an 
 agreement to discharge such note, is founded 
 upon a good consideration. Sup. Ct. Sp. T., 
 
 1873, Oarijl v. Williams, 7 Lans. 416. 
 
 10. An assignment of the mortgage so given 
 transfers the mortgage debt. lb. 
 
 11. A mortgage given by a married woman 
 on her separate property, as security for the 
 price of goods to be sold by the mortgagee to 
 her husband, is a valid lien in his hands for 
 the value of the goods furnished, altliough they 
 were actually sent to the husband by the firm 
 of which the mortgagee was a menber, he 
 becoming liable therefor to the firm. Sup. Ct., 
 
 1874, Wood V. Lockwood, 1 Hun, 714. 
 
 12. A mortgage given by the owner of prem- 
 ises to a contractor for erecting buildings there- 
 on, at a time wlien nothing was due him by the 
 terms of the contract, but with the understand- 
 ing that it should be assigned to parties who 
 had filed a lien on the buildings for materials 
 furnished, on their discharging their lien, and 
 which was so assigned and the lien thereupon 
 discharged ; — Held, founded on a good consider- 
 ation. Sup. Ct., 1875, Haden v. Buddensick, 4 
 Hun, 649. 
 
 13. A mortgage of lands in this State, given 
 for the purchase of oil lands in another State, 
 for which the mortgagee executes and delivers 
 a written instrument intended and supposed by 
 both to convey the title, is not void between the 
 parties merely because such writing is imper- 
 fect in not containing the grantee's name ; but 
 such grantee has the right in equity to compel 
 the execution of a proper conveyance. Sup. 
 Ct., 1871, Stowell V. Haslett, 5 Lans. 380. 
 
 14. The mortgagor could not avoid the mort- 
 gage if the mortgagee was willing to perform, 
 lb. 
 
 15. Where a wife joined her husband in mak- 
 ing a voluntary conveyance of her own lands to 
 a third party for the purpose of defrauding the 
 creditors of her husband, though it could not have 
 
470 
 
 MORTGAGE OF REAL ESTATE. 
 
 tlmt effect because he had no interest there- 
 in, and sucli third party exacts as a condition 
 of reconveying the property to her, that a mort- 
 gage shall be given him on the lands of the hus- 
 band, such reoonveyauce furnishes a sufficient 
 consideration to uphold the mortgage. Ct. App., 
 1875, Mapes v. Snyder, 69 N. Y. (14 Sick.) 450. 
 
 16. By cestui que trust, and remainder- 
 man. Where one holding by devise an estate in 
 trust for the life of another, remainder to her- 
 self in fee, united with the cestui que trust, in a 
 mortgage of the premises devised, — Held, that 
 the mortgage attached to, and bound her interest 
 in the remainder, but did not affect the life 
 estate held by her as trustee. Ct. App, 1874, 
 Bathbone v. Hooney, 58 N. Y. (13 Sick.) 463. 
 
 17. For larger sum than due. A mort- 
 gage given for a larger sum than was due 
 the mortgagee, is valid for the larger sum in the 
 hands of one who takes an assignment thereof, 
 and makes further advances to that amount on 
 the agreement of the mortgagor that it shall 
 stand as security for the full amount, only in 
 case no rights of third persons have intervened. 
 As against a subsequent bona fide mortgagee it 
 would be valid only for the amount due on it 
 when his rights accrued. Sup. Ct., 1871, Bissell 
 T. Kellogg, 60 Barb. 617. 
 
 18. For negotiation. A mortgage executed 
 for the purpose of enabling the mortgagee to 
 raise money for the mortgagor, has no life or 
 validity as a security for any amount, or a lien 
 for any purpose, until transferred by such mort- 
 gagee to a purchaser for value; and tlie assignment 
 cannot, upon any principle, have a retro-active 
 operation, so as to give effect to the mortgage at 
 an earlier day, to the prejudice of others hav- 
 ing vested rights. Ct. App., 1872, Schafer v. 
 EeiUy, 50 N. Y. (5 Sick.) 61. 
 
 19. Not ackno'wledged. An unacknowl- 
 edged mortgage, founded on a good considera- 
 tion, is a valid security in the hands of the mort- 
 gagee, excepfas against bona fide purchasers, or 
 mcumbrancers without notice. Sup. Ct., 1862, 
 Vickery v. Dickson, 62 Barb. 272. 
 
 20. Of cemetery lot. A mortgage of a 
 cemetery lot is not invalid as being against pub- 
 lie policy, nor is it prohibited by a statute which 
 declares that such lots shall not be liable to sale 
 on execution, nor applied to payment of debts by 
 assignment under insolvent laws. Sup. Ct., 
 1871, Lantz V. Buckingham, 11 Abb. N. S. 54; 
 S. C, 4 Lans. 484. 
 
 21. Although such a mortgage cannot be fore- 
 closed by sale, yet an action may be maintained 
 for a strict foreclosure thereof. lb. 
 
 22. Of subsequently acquired property. 
 A mortgage of a railroad to secure bonds of the 
 company, which provides that all property sub- 
 sequently acquired by the company for the use 
 of the road shall, upon the acquisition thereof, 
 become subject to the lien and operation of the 
 mortgage, makes rails subsequently acquired for 
 the use of the road a part of the security only in 
 equity, against persons buying them with notice 
 of the facts, or without parting with value for 
 them. Sup. Ct., 1875, Weetjen v. St. Paul i- 
 Pacific R. R. Go., 4 Hun, 529. 
 
 23. Fraud. A mortgage given as part con- 
 sideration for a sale, at the instance and for the 
 benefit of the vendee, is not rendered void by fraud 
 in the sale, but is voidable merely at his election ; 
 and where he has placed himself in a position 
 such that he cannot rescind, though retaining his 
 remedy for damages, the mortgage will remain 
 operative. Ct. App., 1873, Pullman v. Alley, 53 
 N. Y. (8 Sick.) 637. 
 
 24. Usury. Where F having the legal title to' 
 certain premises, though in fact holding them as 
 trustee for HMD, executed a deed, leaving the 
 name of the grantee blank, and delivered the 
 same to the husband of M M D for her use, with 
 authority to her to fill the blank ; and she and 
 her husband afterward applied to E, the as- 
 signee of a mortgage for $3,200 given by F, for 
 an additional loan of $1,500 for four months upon 
 security of the property, offering to pay $150 for 
 the use of the money, and an arrangement was 
 made by which the blank in the deed was filled 
 with E's name, and it was reacknowledged and de- 
 livered to E, and he at the same time gave checks 
 to F's order, but for the benefit of M M D, and 
 contracted to convey the premises to her for $5,650 
 of which $1,650 was to be paid in four months, and 
 the balance secured by bond and mortgage, and 
 in case she should fail to comply with the terms 
 of the sale on'the day specified, the agreement 
 should be null and void ; and E retained his old 
 mortgage, and M M D and her husband remained 
 in possession of the premises, — Held, that the 
 transaction was a loan of money, and not a sale 
 of the property ; that the deed was in effect a 
 mortgage ; and that it was void for usury. Ct. 
 App., 1872, Fiedler v. Darrin, 50 N. Y. (5 Sick.) 
 437 ; Rev'g S. C, 59 Barb. 651. 
 
 n. CONSTRnOTION ; PARTIES AND THEIE RIGHTS. 
 
 25. "Without covenant. A mortgage of 
 land which contains no covenant or promise to 
 pay the money secured by it, nor any express 
 admission or acknowledgment of indebtedness 
 by the mortgagor, creates no personal liability 
 on his part. It is only upon an express and un- 
 equivocal admission that a promise will be 
 implied. Sup. Ct., Sp. T., 1873, Coleman v. Van 
 Rensselaer, 44 How. 368. 
 
 26. The ordinary recital " that the party of 
 the first part, in consideration of the sum of $500 
 to him duly paid, has granted," &c., is not an ad- 
 mission of indebtedness from which a promise 
 may be implied ; neither is a recital that " this 
 grant is intended as a security for the payment 
 of $500 and interest," or a provision for the 
 return of any surplus after sale such an admis- 
 sion, lb. 
 
 27. Where a wife mortgages her property to 
 secure her husband's debt, without any promise 
 to pay it or admission of indebtedness in the 
 mortgage, she is not personally liable therefor, 
 and no judgment for deficiency can be rendered 
 against her on foreclosure of the mortgage. lb. 
 
 28. Lien of. An abstract of title furnished 
 by the owner of land to the attorney of a party 
 about to loan money on a mortgage of the 
 land, for the purpose of decreasing the expenses 
 of searching for title, becomes a part of the 
 security for the loan, and he is not entitled to the 
 return thereof until the mortgage is paid. Sup. 
 Ct., 1871, Holm V. Wust, 11 Abb. N. S. 113. 
 
 29. The mortgagee of a saw mill acquires, by 
 virtue of his mortgage, a lien upon all that 
 formed a part of the realty at the time it was 
 given ; and if the mortgager severs machinery, 
 such as the muley head, dogs, rag-wheel, &e., 
 from the mill, before the mortgagee forecloses, 
 he has a right of action therefor. Sup. Ct., 1866, 
 O'Dougherty t. Felt, 65 Barb. 220. 
 
 30. Whether the purchaser at the foreclosure 
 sale would, by virtue of his purchase, become 
 the owner of fixtures thus severed from the free- 
 hold, but remaining on the premises, query t lb. 
 
 31. A mortgage of land, containing a warranty 
 of title, executed by one who is in possession. 
 
MORTaAGE OF REAL ESTATE. 
 
 471 
 
 but has no valid title, becomes a lien upon the 
 land if he acquires good title while in possession, 
 and while his covenant o£ warranty remains in 
 force ; and both the mortgagor and those claim- 
 ing title under him subsequent to the mortgage, 
 are estopped by such covenant. Sup. Ct., 1871, 
 Tefft V. Munson, 63 Barb. 31. 
 
 32. As against an assignee of a mortgagor, 
 whose deed by its terms is made subject to the 
 mortgage, such mortgage may be enforced as a 
 lien to its full amount by the mortgagee or his 
 assignee, although given to secure a loan for a 
 smaller amount, and purchased by such assignee 
 for the actual amount of the loan. Com. App., 
 1870, Freeman v. Auld, 44 N. Y. (5 Hand,) 50 ; 
 Eev'g S. C, 37 Barb. 587. 
 
 33. As to the amount collected by such mort- 
 gagee, or his assignee, over and above the 
 amount actually loaned, he will be considered a 
 trustee for the mortgagor, and bound to account 
 to him. lb. 
 
 34. Equitable rights betrween parties. 
 G, who, with her husband, had executed a 
 mortgage upon two lots belonging to him, after 
 his death applied for and had her dower in both 
 admeasured, and set off in one of them. L, 
 who had purchased the interests of the heirs of 
 the husband, conveyed the other lot, no part of 
 which was assigned as dower, to a third party, 
 who, as part of the purchase-price, assumed the 
 mortgage. In an action by G, who afterward 
 purchased the mortgage to foreclose the same, — 
 Held, that she was bound to contribute to the 
 payment of the mortgage to the extent of the 
 interest upon one-third the principal during her 
 life, and that L was entitled to receive what 
 she was thus liable to pay. Ct. App, 1872, 
 Graham v. Linden, 50 N. Y. (6 Sicls.) 547. 
 
 85. When a mortgagee has elected, under an 
 option clause in the mortgage giving liim that 
 right, to declare the entire principal due for a 
 failure to pay an instalment of interest in 
 30 days after due, he cannot afterward be 
 compelled to accept a tender of the interest 
 alone, thus waiving the default. Nor wiU he 
 have waived his right to make the election by 
 having commenced a foreclosure action before 
 the 30 days expired, claiming only the un- 
 paid interest. Ct. App., 1872, Malcolm \.\ Allen, 
 49 N. Y. (4 Sicli.) 448. 
 
 36. A mortgagor of lands in this State, even 
 after default and after possession taken by the 
 mortgagee, holds the legal title, and has an 
 interest in the lands which may be sold upon 
 execution against him ; and the mortgagee in 
 possession may acquire the title upon the execu- 
 tion sale, and set it up to defeat an action by the 
 mortgagor to redeem. Gkat, C, dissents. Com. 
 App., 1874, Trimm v. Marsh, 54 N. Y. (9 Sick.) 
 599 ; Aff'g 3 Lans. 509. 
 
 37. Extension of time. A parol agreement 
 made by a mortgagee with the purchaser of the 
 mortgaged premises, that if the latter will pur- 
 chase the premises, pay a certain sum, less than 
 the amount then due on and mortgage, and 
 interest annually thereafter, a.-l make certain 
 improvements,- he will extend the time of pay- 
 ment of the mortgage for 20 years, is valid 
 and binding upon the parties ; and, if the pur- 
 chaser otherwise complies with his agreement, 
 his failure to pay the interest as agreed does 
 not render the principal due. Sup. Ct., 1874, 
 Burt V. Saxton, 1 Hun, 551. 
 
 38. Subject to prior mortgage. A con- 
 dition contained in a mortgage, that it is made 
 subject to a prior mortgage which the mortgagee 
 assumes to pay, — Held to be a mere agreement | 
 
 to advance, and not a security in the hands of 
 the grantor as surety, available to the parties in 
 whose favor the prior liens exist by way of 
 equitable subrogation. Ct. App., 1872, Gurnsey 
 V. Rogers, 47 N. Y. (2 Sick.) 233. 
 
 39. Such a stipulation is for the benefit of the 
 mortgagor only, and cannot be enforced by the 
 owner of the prior lieu as a promise made for 
 his benefit. lb. 
 
 40. The rule is the same whether the con- 
 veyance intended as a security for money be in 
 terms a deed absolute or contain conditions of 
 defeasance ; and, in either case, a satisfaction of 
 the debt and reconveyance of the title to the 
 mortgagor releases the mortgagee from all 
 liability upon such a stipulation. lb. 
 
 41. A merger does not take place when the 
 fee of mortgaged premises is acquired by the 
 mortgagee, if such was not the intention of the 
 parties. Sup. Ct., 1875, Day v. Mooney, 4 Huh, 134. 
 
 42. Mortgagee In possession. The rela- 
 tion between mortgagor and mortgagee is not 
 one of trust and confidence, nor has the latter 
 any duty to perform in respect to the lands 
 mortgaged, even though in possession, which 
 incapacitates him from purchasing an outstand- 
 ing title thereto. Sup. Ct., 1874, Ten Eyck v. 
 Craig, 2 Hun, 452. 
 
 43. Neither will the assignment of a lease of 
 the premises to him, with an agency to collect 
 and apply the rents, impair his right to pur- 
 chase or impose any burden or disability on 
 him. lb. 
 
 44. Upon an accounting by a mortgagee, who 
 has been in possession of the mortgaged prem- 
 ises, to ascertain the amount due him, moneys 
 received by him as damages for lands taken by 
 railroads or by the State, should be charged him 
 and applied to the unpaid interest on liis de- 
 mands at the time of their receipt. Sup. Ct., 
 1874, Bennett v. Cook, 2 Hun, 526. 
 
 45. Where interest is in arrear at the time he 
 takes possession, annual rests should not be made 
 until the principal mortgage debt is entirely paid 
 off. lb. 
 
 46. Waste by mortgagor. Where a pur- 
 chaser of land subject to a prior mortgage gave 
 a purchase-money mortgage thereon, and after- 
 ward sold the wood on the premises, and tlie 
 second mortgagee being about to interfere, 
 finally allowed the work to proceed on the 
 promise of his mortgagor to apply the proceeds 
 on the prior mortgSge ; but, after the wood was 
 cut, being afraid that the proceeds would not be 
 so applied, notified the purchasers of the wood of 
 his rights and his fears, and requested them not 
 to pay the money to the mortgagor, which re- 
 quest they disregarded, — Held, that the title to 
 the wood rested in the purchasers on its being 
 severed, notwithstanding the mortgages ; that 
 such purchasers having cut the wood in igno- 
 rance of the lien and without intent to injure the 
 mortgagee, were not liable to him for the impair- 
 ment of his security ; that his permitting tliem 
 to proceed amounted to a license, and estopped 
 him from questioning their title ; and that they 
 were not bound to yield to his request, but miglit 
 lawfully pay the mortgagor, in the absence of 
 legal proceedings to prevent. Ct. App., 1874, 
 
 Wilson V. Maltby, 59 N. Y. (14 Sick.) 126. 
 
 HL Assignment AND ki&hts of assignee. 
 
 47. Obtained by fraud. One who procures 
 a bond and mortgage to be assigned to him 
 to enable him to negotiate them, having pre- 
 viously refused to purchase them himself, and 
 
472 
 
 MORTGAGE OF REAL ESTATE. 
 
 afterward claims to retain them as his own 
 property, and refuses to sell or assign them, or 
 to pay his assignor anything, or even to satisfy 
 a judgment which he held and was to satisfy out 
 of the proceeds, or to release a levy made under 
 such judgment, obtains no title to the securities, 
 and cannot enforce them against the maker, 
 even to the amount of his judgment. Sup. Ct., 
 1871, Hall V. Erwin, 60 Barb. 349. Judgment 
 modified, 57 N. Y. (12 Sick.) 643. 
 
 48. Compulsory. Aprior mortgagee cannot 
 be compelled to assign to a subsequent mort- 
 
 . gagee on the mere ground that the latter stands 
 in that relation, without some other equitable 
 reason therefor. Sup. Ct., 1875, Vandercooh v. 
 Cohoes Savings Inst., 5 Hun, 641. 
 
 49. Subject to defenses. A mortgage, 
 like a note payable to the payee only, is not 
 negotiable, and though assigned for value, is 
 always subject to the defenses existing between 
 the original parties. Ct. App., 1872, Ingrdham 
 V. Disborough, 47 N. Y. (2 Siek.) 421. 
 
 50. An assignee of a mortgage takes subject 
 to any defenses existing between the parties, 
 and, in an action by liim for foreclosure the 
 mortgagor may set up a mistake in the instru- 
 ment and ask for its correction ; nor will the 
 absence of the mortgagee as a party prevent 
 the granting of the relief asked. Ct. App., 1872, 
 Andrews v. Gillespie, 47 N. Y. (2 Sick.) 487. 
 
 51. An assignee in good faitli and for value 
 of a mortgage given to enable the mortgagee to 
 raise money for the mortgagor, takes subject to 
 any equities of lienors acquired prior to the 
 assignment, notwithstanding he, before taking 
 such assignment, exacted from the mortgagor 
 an affidavit that tlie mortgage was a valid se- 
 curity for the whole amount named in it, and 
 that the money was advanced by tlie mortgagee 
 for it. Ct. App., 1872, Schafer v. Reilly, 50 N. 
 Y. (5 Sick.) 61. 
 
 52. Merger. The doctrine of merger does 
 not apply to tlie case of a purchaser of -lands at 
 execution sale, who, before the time for redemp- 
 tion expires, takes an assignment of an out- 
 standing prior mortgage thereon, but such pur- 
 chaser may proceed to foreclose the mortgage, 
 and if the proceeds of the sale are insufficient to 
 satisfy the same, may recover the balance from 
 the mortgagor on the bond. Com. App., 1873, 
 Southworth v. Schofield, 51 N. Y. (6 Sick.) 513. 
 
 IV. Eeookding ; pbiokitt. 
 
 63. To loan commissioners. The entry 
 of a mortgage to the county loan commissioners 
 in the books of such commissioners, kept in the 
 county clerk's office, has under sec. 43, ch. 150, 
 Laws of 1837 (3 Edm. Stats. 89), the same effect 
 as to priority of lien, and the operation and ef- 
 fect of the mortgage, as if it was recorded in the 
 book of mortgages in such clerk's office. Sup. 
 Ct, 1871, Teffi V. Munson, 63 Barb. 31. 
 
 54. Such record is notice to all subsequent 
 purchasers and mortgagees, of the lien created 
 thereby. lb. 
 
 55. Before title acquired. If one who 
 executes a mortgage upon lands to which he has 
 no title, with covenants of seizin and title, after- 
 ward acquires title, it inures to the benefit of 
 the mortgagee, and a record of such mortgage, 
 prior to the acquisition of title by the mort- 
 gagor, is constructive notice to a subsequent 
 purchaser in good faith, and, under the record- 
 ing act, gives it priority to his title. Lott and 
 Reynolds, CG. dissent. Com. App., 1874, Tefft 
 V. Munson, 67 N. Y. (12 Sick.) 97. 
 
 66. Priority. Where a mortgagee of the ap- 
 parent interest of a partner, as tenant in com- 
 mon of property purchased with partnership 
 funds and used for partnership purposes, but 
 conveyed to the partners as individuals, secures 
 by such mortgage a precedent debt, without 
 parting with anything of value, his lien will be 
 postponed to that of subsequent crelitors or 
 incumbrances of the partnership, aithough he 
 took without notice of the facts as to <ie title. 
 Ct. App., 1872, Hisoock v. Phetpj, 19 K. Y. (4 
 Sick.) 97. 
 
 57. Between mortgages. Where two mort- 
 gages of the same property, but to different 
 mortgagees, were executed and delivered at the 
 same time, each expressly stating that it was 
 for a part of the purchase-money, with the ex- 
 press understanding between the parties that 
 they should be equal liens on the land, and 
 neither entitled to priority over the other, but 
 one was recorded prior to the other, and was 
 afterward assigned to a bona fide purchaser with- 
 out notice of the agreement ; — Held, that, by 
 force of the recording act, such mortgage was 
 entitled to priority in the hands of the assignee. 
 Sup. Ct., 1875, Greene v. Deal, 4 Hun, 703. See 
 note, p. 705. 
 
 58. Where an attorney for two different per- 
 sons, executes a mortgage to one (d them, but 
 does not record it, and afterward executes a 
 mortgage of the same property to the other of 
 them, which he records, the latter mortgagee is 
 not affected with notice of the prior mortgage 
 by the knowledge of her attorney, but is entitled 
 to priority over it. Sup. Ct., 1874, Hope F. Ins. 
 Co. V. Cambreling, 1 Hun, 493. 
 
 59. Becitals in a deed of the mortgaged 
 premises given by a former owner, from whom 
 the mortgagor derives title, that tlie premises 
 are subject to two mortgages, is not notice to a 
 subsequent mortgagee of the premises, whose 
 mortgage was duly recorded, of the continued 
 existence as a lien of one of those mortgages 
 which was not recorded until after judgment of 
 foreclosure on the subsequent mortgage, so as 
 to give priority to the previously unrecorded 
 mortgage. Sup. Ct., 1875, Crofut v. Wood, 3 
 Hun, 571. 
 
 60. A lien, for unpaid purchase-money at- 
 taches eo instanti, upon a conveyance of lands in 
 pursuance of an executory contract for their 
 sale, and if the vendor at the time of the convey- 
 ance takes back a mortgage for such purchase- 
 money, it is a part of an indivisible transaction, 
 and the purchaser cannot give another a lien 
 which will take a priority to such mortgage. 
 Ct. App., 1875, Dusenbury v. Hulbert, 59 N. Y. 
 (14 Sick.) 641. 
 
 61. Where G, having a contract for the pur- 
 chase of lands, to be conveyed on the 1st day of 
 April, and the unpaid purchase-money to be 
 secured by mortgage, borrowed money of S, on 
 that day, stating that he owned and had a deed 
 of such lands, and agreeing to give a mortgage 
 thereon which should be a first lien, and did on 
 that day execute a mortgage to S, and on the; 
 14th of April left it at the clerk's pffice for record 
 witll his deed, but a mortgage for unpaid pur- 
 chase-money, executed on the 6th of April at 
 the same time with the deed, was not recorded 
 until the 17th of April,— ficW, that S, did not 
 acquire a priority over the purchase-money 
 mortgage, either by the prior execution or the 
 prior recording of his mortgage. lb. 
 
 62. In such case, S could not claim protec- 
 tion as a subsequent purchaser, because he did 
 not part with value on the faith of the convey- 
 
MORTGAGE OF REAL ESTATE. 
 
 473 
 
 ance to G, but on the false statement of G as 
 to his title. lb. 
 
 63. Neither could he claim priority by reason 
 of his greater diligence in recording his mort- 
 gage, because that attached only to the interest 
 which G had, and not to the whole estate. lb. 
 
 64. A mortgage given to trustees by a rail- 
 road company, upon all its " railroad, as well 
 that part now constructed as the part thereof 
 which shall be hereafter constructed, together 
 with the right of way of said road, lands, rails, 
 bridges, erections, structures, fixtures and ap- 
 purtenances thereunto belonging, and all the 
 franchises and rights now owned by or belong- 
 ing to the corporation, or that may be owned by 
 them and belong to them hereafter, together 
 with all the locomotives, tenders, cars, carriages, 
 tools and machinery now owned or hereafter to 
 be owned by said corporation, or in any way 
 belonging or appertaining to said road and used 
 thereon," to secure an issue of its bonds, with a 
 covenant for further assurance, is an equitable 
 Hen upon the subsequently acquired property, 
 which is to be considered as an incident to the 
 franchise mortgaged, and as an accession to the 
 subject of the mortgage, and it takes precedence 
 of subsequent mortgages to other parties having 
 notice thereof, and taking expressly subject 
 thereto, and also of a lien by judgment subse- 
 quently acquired. Ct. App. 1868, Stevens v. 
 Buffalo, Coming #• New York R. R. Co., 45 How. 
 104. 
 
 65. A mortgage executed and delivered by 
 the owner of land, but not recorded until after a 
 conveyance of the land, without consideration, 
 to a grantee who had actual knowledge of such 
 mortgage and of the consideration paid therefor, 
 is a lien prior to that of a mortgage executed 
 subsequent thereto by the grantee of the land, 
 although the second mortgagee had no notiee of 
 the first mortgage except such as was given by 
 the record. Sup. Ct., 1874, Goelet v. McManus, 
 1 Hun, 306 ; AfE'd by Ct. App. 
 
 66. Over judgment. Where a husband, 
 against whom a judgment had been recovered, 
 conveyed real estate indirectly to his wife, and 
 procured other real estate to be conveyed to her, 
 he paying the purchase-money, and after she 
 had given a valid mortgage on the latter prop- 
 erty the same creditor obtained a second judg- 
 ment against the husband, — Held, that such 
 mortgage was a valid lien upon the property, 
 and the judgment creditor could not by a judg- 
 ment in an action to set aside the conveyances 
 to the wife as fraudulent, to which such mort- 
 gagee was not made a party, acquire a lien prior 
 to the mortgage. Sup. Ct., 1871, Reynolds v. 
 Park, 5 Lans. 149. 
 
 67. Where a person holding a contract for the 
 purchase of land borrowed $500, from one to 
 whom he was already owing a lilce amount, to 
 enable him to pay up for the land, agreeing to 
 give him a mortgage for $1000, as soon as he re- 
 ceived a deed, and on receipt of the deed de- 
 posited it with the lender as security until he 
 should execute the mortgage, which he did 
 about one year afterward, and tlie deed and 
 mortgage were recorded the same day, — Held, 
 that, as to the money advanced for the purchase 
 of the land, the mortgage was entitled to priority 
 over a judgment obtained against the mortgagor 
 prior to the date of the conveyance to him ; but, 
 as to the debt previously existing, the judgment 
 was entitled to priority. Sup. Ct., 1875, Ray v. 
 Adams, 4 Hun, 332. 
 
 68. Over unrecorded lease. Where a 
 mother conveyed premises to her son in fee, 
 
 taking back a lifg lease and remaining in pos- 
 session, but before her lease was recorded her 
 son gave a mortgage of the premises to one who 
 had made reasonable inquiries for liens without 
 obtaining knowledge of the lease, — fie W, that 
 the mortgage was a prior lien. Sup. Ct., 1875 
 Staples V. Fenton, 5 Hun, 172. 
 
 69. Over mechcinlc's lien. If a mortgage * 
 of his lease, executed by a lessee to his lessor 
 
 to secure advances made by the latter to be ap- 
 plied to the improvement of the premises, is re- 
 corded before a notiee of lien is filed against the 
 lessee, for work performed and materials fur- 
 nished after the advances, but before the execu- 
 tion of the mortgage, it takes precedence of the 
 lien. N. T. Supr. Ct., 1871, Stuyvesant v. Brown- 
 ing, 33 N. Y. Supr. (IJ. & Sp.) 203. 
 
 70. The fact, that the mortgagee is owner of 
 the fee and lessor, and is by the terms of the 
 lease to have all the improvements at the end 
 of the term, does not make him the " owner " of 
 the building, so as to give the Uen priority as 
 against him. lb. 
 
 v. DiSCHAKGE ; REDEMPTION. 
 
 71. By order of court. To authorize the 
 discharge of a mortgage by order of court, under 
 the provisions of Ch. 365, Laws of 1862, as 
 amended by Ch. 798, Laws of 1868, and Ch. 551, 
 Laws of 1873, the fact of payment must be alleg- 
 ed and proved. It is not sufficient to prove the 
 lapse of time from which payment may be pre- 
 sumed. Sup. Ct., 1875, Townsend, In matter of, i 
 Hun, 31. 
 
 72. By verbal agreement. A verbal 
 agreement to satisfy a mortgage, made by the 
 holder thereof upon a new and sufficient con- 
 sideration passing between him and the mort- 
 gagor, will be treated in equity as a satisfaction 
 and discharge, and may be pleaded as a defense 
 to an action on the mortgage. Sup. Ct., 1872, 
 Griswold V. Griswold, 7 Lans. 72. 
 
 73. By extension. Where a wife mort- 
 gages her separate property as security for 
 her husband's debt, her position is that of 
 surety, and an extension of the time of 
 payment without her consent wiU operate to 
 discharge the mortgage. Sup. Ct., Sp. T., 1873, 
 Coleman v. Van Rensselaer, 44 How. 368. 
 
 74. By payment. Commissioners "for loan- 
 ing certain moneys of the United States," have 
 no power to sell and assign a mortgage given to 
 them to secure a loan, and moneys paid to them 
 by a third party under a written agreement that 
 they should assign the mortgage to him, cannot 
 be applied either as upon a purchase or in pay- 
 ment thereof, but the commissioners may be 
 directed by the court to foreclose for the benefit 
 of the person making the payment. Com. App. 
 1870, Woodgate v. Fleet, 11 Abb. N. S. 41 : S. 0.,. 
 44 N. Y. (5 Hand,) 1. 
 
 75. By receipt of rents and profits. In 
 the absence of an agreement between the par- 
 ties, there is no legal satisfaction of a mortgage 
 by the receipt of rents and profits by a mortgag- 
 ee in possession to an amount sufficient to satisfy - 
 it, and his character as mortgagee in possession 
 is not divested until they are applied by the 
 judgment of a court of equity, upon an account- 
 ing, in satisfaction of the mortgage. Ct. App., 
 1873, Hubbell v. Moulson, 53 N. Y. (8 Sick.) 225. 
 
 76. By release. A release from a mortgage 
 of a portion of the premises covered thereby, 
 executed by the committee of a lunatic to whom 
 it was given as security for a loan of a portion 
 of the lunatic's estate, is valid, although given 
 
474 
 
 MORTGAGE OF REAL ESTATE. 
 
 without leave of court ; and it recorded, the fact 
 tliat it was without consideration will not rend- 
 er it invalid as against a bona fide purchaser for 
 value. Sup. Ct, 1876, Pickersgill v. Read, 5 
 Hun, 170. 
 
 77. A satisfaction of a mortgage of land in 
 this State, given by an administrator appointed 
 
 t in a foreign state where the intestate resided at 
 the time of his decease, is no defense to an 
 action by an administrator appointed in this 
 State to foreclose the mortgage, even though 
 the foreign administrator had the securities in 
 his possession and received the money thereon 
 before any administrator was appointed. Sup. 
 Ct., 1870, Stone v. Scripture, 4 Lans. 186. 
 
 78. Where one of two co-trustees is and has 
 been for a number of years absent from this 
 country, the resident acting trustee can receive 
 payment of a mortgage and execute a valid 
 satisfaction thereof, which will be entitled to re- 
 cord. N. Y. Supr. Ct., Sp. T., 1878, People ex 
 ret. Adams v. Sigel, 46 How. 151. 
 
 79. By sale on prior judgment. The 
 effect of a sale of mortgaged premises upon a 
 prior judgment, and the failure of the subse- 
 quent mortgagee to redeem, is to transfer the 
 title to the purchaser, and extinguish the mort- 
 gage and all other liens inferior to the judg- 
 ment ; and the mortgagee cannot, by taking a 
 conveyance of the premises from the purchaser, 
 revive his mortgage as a lien. Sup. Ct., 1872, 
 Sill V. Pixlei/, 63 Barb. 200. 
 
 80. If such mortgage lien could be considered 
 as unimpaired in the hands of the mortgagee, at 
 the time he took such conveyance, it would 
 tliereby become merged and extinguished, and 
 could not be asserted against one deriving title 
 through him. lb. 
 
 81. By surrender of life estate. A mort- 
 gage executed by a tenant for life or lives can- 
 not be cut off by a voluntary surrender by such 
 tenant to his landlord on his claim of a forfeiture 
 for waste committed ; but a re-entry for the 
 forfeiture by suit at law is necessary in order to 
 terminate the lease. Sup. Ct., 1871, Allen v. 
 Broum, 5 Lans. 280 ; S. C, 60 Barb. 39. 
 
 82. By tender. Whether the whole sum due 
 upon a mortgage belongs to the holder, or part 
 to him and part to others for whom he holds in 
 trust, in neither case will the lien be discharged 
 in whole or in part by a tender of a less sum 
 than the entire amount. Ct. App., 1872, Gra- 
 ham V. Linden, 50 N. Y. (5 Sick.) 547. 
 
 83. Where after the decision of the U. S. Su- 
 preme Court in Hepburn v. Griswold (8 Wal., 
 605), declaring the legal tender act, so far as it 
 applied to debts incurred' prior to its passage, 
 unconstitutional and void, and before its rever- 
 sal in the case of Knox v. Lee (12 Wal. 457), 
 tender was made, in legal tender notes, of a 
 mortgage debt contracted priorto said act, — Held, 
 in an action to foreclose the mortgage, that the 
 plaintiff had a right to rely upon the decision of 
 the highest judicial tribunal in the land, and 
 the hen of the mortgage was not discharged ; 
 but that if the tender had been kept good, 
 defendant might have been discharged from the 
 payment of interest and costs. Ct. App., 1874, 
 Harris v. Jex, 55 N. Y. (10 Sick.) 421. 
 
 84 By ■waiver of condition. A condition 
 in a mortgage, that the mortgagor shall support 
 and maintain the mortgagee and pay to him a 
 certain sum, weekly, is waived by his refusal 
 to receive such sum, and the mortgagor is there- 
 by discharged from performing the same. Sup. 
 Ct., 1875, Morrison v. Morrison, 4 Hun, 410. 
 
 85. Redemption; The equity of redemption 
 
 under our system of laws, is deemed the real 
 and beneficial estate, and is descendible, devisa 
 ble and alienable, precisely the same as if it were 
 an absolute estate of inheritance at law in the 
 mortgagor. N. Y. Supr. Ct., 1870, Miner v. 
 Beekman, 42 How. 33. S. C, 11 Abb. N. S. 147 ; 
 33 N. Y. Supr. (\ J. & Sp.) 67. 
 
 86. At any time, within the statutory period 
 of limitation, before this equity is absolutely 
 barred and foreclosed, thwmortgagor is entitled 
 to redeem the premises ; and that right extends 
 to his grantees, assignees, heirs, devisees, and 
 every other person who has acquired any inte- 
 rest in or legal or equitable lien upon the pre- 
 mises, lb. 
 
 87. Even after the expiration of twenty years 
 from the time the mortgage became due, the 
 owner of the equity of redemption, if in posses- 
 sion, has a right to tender the amount due, with 
 interest, and thus discharge the lien, or, if the 
 amount be uncertain, he is entitled to the aid of 
 equity to determine it, and to compel the dis- 
 charge of the mortgage upon payment thereof; 
 S. C, 14 Abb. N. S. 1 ; 50 N. Y. (5 Sick.) 337. 
 
 88. As to a person entitled to redeem, a fore- 
 closure of a mortgage without making him a 
 party is a nuUity ; and a purchaser at the fore- 
 closure sale, who takes possession and occu- 
 pies under such sale, is liable to account for the 
 profits until the equity of redemption is extin 
 guished. S. C, 42 How. 33, etc. 
 
 89. Neither tender of the amount due, nor 
 demand of possession of the premises, is abso- 
 lutely necessary before suit to redeem, but it is 
 important only with reference to the costs of 
 the action. lb. 
 
 90. An equitable mortgagor of lands conveyed 
 in fee to one who advances the purchase money 
 has an equity of redemption therein, which is 
 not extinguished by a purchase thereof by his 
 mortgagee at an execution sale on a judgment 
 against him held by the latter. Ct. App., 1874, 
 Genet v. Davenport, 56 N. Y. (11 Sick.) 676. 
 
 91. A posthumous child, born two days before 
 the entry of a final decree in an action to fore- 
 close a mortgage given by her deceased father, 
 and not made a party to the suit, or barred by 
 any subsequent proceeding, — Held, entitled to 
 redeem her share as one of the heirs of the 
 deceased, both of the premises and of the back 
 rents, on paying a like share of the mortgage ; 
 and to maintain an action to redeem after she 
 came of age. Sup. Ct, Sp. T., 1867, Giles v. 
 Solomon, 10 Abb. N. S. 97, n. 
 
 VI. Statutokt fokeolosuke. 
 
 92. In general. In order to cut off the rights 
 of the mortgagor and of subsequent purchasers 
 and incumbrancers, by a statutory foreclosure 
 the requirements of the statute must be substan- 
 tially complied with, and what is a substantial 
 compliance is to be determined with regard 
 to the objects of the statute. Sup. Ct., 1871, 
 Hubbell V. Sibley, 5 Lans. 51. 
 
 93. Those objects being to relieve parties 
 from the expense of a suit, and to enable per- 
 sons not learned in the law to conduct the fore- 
 closure, the construction of the statute should 
 be liberal and not technical. lb. 
 
 94. Any mortgage containing a power of 
 sale upon default being made in any of its con- 
 ditions, may be foreclosed under the provisions 
 of the statute, whether the amount due on it be 
 liquidated, or ascertainable by computation, or 
 not. Sup. Ct., 1872, Mowry v. Sanborn, 62 Barb. 
 223. 
 
MOETGAGE OF EEAL ESTATE. 
 
 475 
 
 95. Thus a mortgage given to secure the pay- 
 ment of commercial paper of the mortgagor, 
 then held and owned by, or thereafter to be dis- 
 counted, held and owned by, the mortgagee, but 
 containing a provision limiting the amount and 
 the time within which it shall be received or 
 discounted can be so foreclosed. lb. 
 
 96. The statutes of this state regulating the 
 foreclosure of mortgages by advertisement apply 
 only to mortgages of property within the State ; 
 and as to property without the State, a sale in 
 accordance with the conventional arrangement 
 of the parties expressed in the mortgage, thougli 
 not in conformity to our statute, will be valid 
 and effectual to bar the title of the mortgagor. 
 Ct. App., 1871, Elliot v. Wood, 45 N. Y. (6 Hand,), 
 71 ; Aff'g S. C. 53 Barb, 285. 
 
 97. There is no such trust relation between the 
 mortgagor and mortgagee as will prevent the 
 latter from bidding on the foreclosure sale, but 
 a purchase by him will be valid, especially where 
 it is authorized by the express terms of the 
 mortgage. lb. 
 
 98. Notice to parties. A notice of sale in 
 proper form and in due time, enclosed in an 
 envelope and addressed to and served uijon the 
 person who is in fact administratrix of the 
 deceased mortgagor, and as such interested in 
 the mortgaged premises, is sufficient, although 
 the title administratrix is not added to her name 
 in the address. Sup. Ct., 1874, George v. Arthur, 
 2 Hun, 406. 
 
 99. Under the statute providing for the fore- 
 closure of mortgages by advertisement, it is ne- 
 cessary in order to bar the lien of a judgment 
 creditor whose judgment is perfected after the 
 commencement of proceedings, but more than 
 twenty-eight days prior to the sale, that the 
 statutory notice be served upon him. Com. 
 App., 1873, Groffy. Morehouse, 51N.Y. (6 Sick.) 
 503. 
 
 100. The wife of one who is the owner in fee 
 of mortgaged premises at the time they are sold 
 under a statutory foreclosure by advertisement, 
 must be served with notice and made a party to 
 the proceedings, in order to cut off her inchoate 
 right of dower. Service of notice upon the hus- 
 band is not sufficient for that purpose. Sup. Ct., 
 Sp. T., 1872, Northrupv. Wheeler, 43 How. 122. 
 
 101. Notice of sale. If the notice of sale, 
 in foreclosure by advertisement, gives to the 
 public the means of ascertaining the facts, re- 
 quired to be stated in such notice, by accurate 
 reference to the record of the mortgage in the 
 clerk's office, that is sufficient, and a strict con- 
 formity to the provisions of the statute is not 
 essential to the validity of the foreclosure. 
 Sup. Ct., 1874, Candee v^ Burke, 1 Hun, 546. 
 
 102. The notice of sale on foreclosure of a 
 mortgage by advertisement need not state that 
 the subscribers have lawful right or authority to 
 foreclose. Sup. Ct., 1875, People ex rel. Briden- 
 becker v. Prescott, 3 Hun, 419. 
 
 103. Executors and administrators are nqt as- 
 signees, within the meaning of the statute rela- 
 tive to notices of foreclosure ; but, if they were, 
 a notice signed by the executors of the mortga- 
 gee, adding the words executors, &c., to their 
 signatures, ia sufficient. lb. 
 
 104. An erroneous statement in the notice of sale 
 of matters not required by the statute to be stated, 
 will not render the sale void, unless calculated to 
 mislead and prevent bidding, nor then if insert- 
 ed by mistake, and corrected early enough so 
 that it cannot be presumed to iniluence persons 
 desiring to bid. Sup. Ct., 1871, Hubbeli v. Siblet/, 
 6 Lane, 51. 
 
 105. So Tield where the notice stated a prior 
 mortgage at twice the actual amount, and a cor- 
 rection was published witti the notice for two 
 weeks prior to the sale. ft. 
 
 106. It is surplusage to state that the premises 
 are subject to a lease, and the omission to state 
 how long a lease mentioned in the notice has to 
 run, does not affect the sale. lb. 
 
 107. The omission to serve the notice of sale 
 on some of the judgment creditors of the mort- 
 gagor, or even upon the wife of the mortgagor, 
 does not render the sale void, or even ir- 
 regular as to those who were served. lb. 
 
 108. A foreclosure by advertisement is not 
 rendered void by the claiming, in the notice of 
 sale, of a larger sum as due, than is or can be 
 due by the terms of the mortgage. Sup. Ct., 
 1872, Mown/ v. Sanborn, 62 Barb. 223. 
 
 109. Nor is its validity affected by the fact 
 that the affidavit of service of notices on the 
 mortgagors by mail stated their residences only 
 on information and belief, in the absence of 
 proof that they did not receive the notices, or 
 did not reside at the place mentioned in the af- 
 fidavit, at the time the notices were mailed, 
 lb. 
 
 110. An error in date in the copy of the no- 
 tice of sale delivered to the county clerk, which 
 may readily be corrected from entries made by 
 the clerk at the time, will not vitiate the pro- 
 ceedings ; but it may be disregarded, in further- 
 ance of justice. lb. 
 
 111. AfSdavits of foreclosure are only pre- 
 sumptive evidence of the facts stated in them, 
 and any person, unless it be the mortgagee, or 
 those claiming under him, may controvert them 
 by parol evidence. lb. 
 
 112. Where the affidavit of service of notices 
 on the mortgagors does not show positively that 
 they at the time resided at the place to which tlie 
 notices were directed, that fact may, it seems, be 
 shown in a suit involving the validity of the 
 proceedings, by parol proof or by a new affida- 
 vit, lb. 
 
 118. An affidavit of sale, the j urat to which 
 states the appearance of the affiant before the 
 officer and administration of the oath to him, is 
 a sufficient compliance with the statute. Sup. 
 Ct., 1871, Hubbeli v. Sibley, 5 Lans. 51. 
 
 114. The sale may be made by the mortgagee 
 or owner of the mortgage, and he may himself 
 become the purchaser, and make the affidavit 
 which stands in place of a conveyance. lb. 
 
 115. A sale of the premises in gross is valid, 
 even though they have, subsequent to the exe- 
 cution of the mortgage, been divided into lots, 
 lb. 
 
 116. Effect of sale. A sale of mortgaged 
 premises during the life of the mortgagor, under 
 a power of sale in a mortgage given for the 
 purchase money, bars the inchoate dower right 
 of the wife of such mortgagor, though she was 
 not a party to the instrument. Ct. App., 1872, 
 Brackett v. Baum, 50 N. Y. (5 Sick.) 8. 
 
 117. Setting aside sale. In conducting a 
 statutory foreclosure, the mortgagee is to be re- 
 garded as a trustee, and is bound to conduct the 
 proceedings in a fair and just manner, and in 
 good faith ; and if he fails to do so, and the 
 mortgagor or subsequent incumbrancers are in- 
 jured thereby, the sale may properly be set 
 aside. Sup. Ct., 1875, Soule v. Ludlow, 3 Hun, 
 503. 
 
 118. Before such sale should bo set aside at 
 the instance of one whose mortgage is merely 
 collateral to another security, he should be re- 
 quired first to exhaust such other security. lb. 
 
^ 476 
 
 MORTGAGE OF REAL ESTATE. 
 
 119. Surplus. After foreclosure by adver- 
 tisement and sale under the statute, the mort- 
 gagee is not liable as, trustee to the holders of 
 subsequent liens for the surplus, if he has re- 
 ceived only the amount due him on the mort- 
 gage and expenses of foreclosure, leaving the 
 surplus in the hands of the purchaser who asserts 
 a claim thereto. Sup. Ct., 1871, Russell v. Du- 
 flon, 4 Lans. 399. 
 
 120. The mortgagee's liability under the ordi- 
 nary condition in a mortgage to pay the surplus 
 to the mortgagor, is only to such mortgagor and 
 those who represent him. . lb. 
 
 121. A purchaser who claims and retains the 
 surplus as holder of the second mortgage lien, 
 is liable to a subsequent judgment creditor for 
 the balance of the surplus after deducting the 
 amount of his own lien, but is not liable for in- 
 terest on such balance until after notice or de- 
 mand by the party entitled to it. lb. 
 
 Vn. FOEECLOSURE BY ACTION. 
 
 122. In what county. Although a mortgage 
 may embrace lands in several counties, the 
 holder may, under sec. 30 of the Code, maintain 
 an action to foreclose the same in the County 
 Court of one of such counties, provided he seeks 
 a strict foreclosure or a sale of the premises sit- 
 uated in such county only. Sup. Ct., 1871, 
 Strong v. Eighme, 41 How. 117. 
 
 123. In case of such a foreclosure, it seems, he 
 cannot take a judgment for deficiency after sale, 
 nor maintain another action on the same mort- 
 gage in a different county. lb. 
 
 124. If any reasons exist why a resort to 
 the lands lying in the county where the action is 
 commenced, in the first instance, would be ine- 
 quitable, the action should be dismissed at the 
 plaintiff's expense, but without prejudice. lb. 
 
 125. Who may foreclose. Where a mort- 
 gage was given for the purchase money of land, 
 which recited a bond in the usual manner but 
 the bond prepared remained in the hands of the 
 mortgagee unsigned, and the mortgagor made 
 payments on both principal and interest, some of 
 which he himself indorsed on the bond, — Held, 
 on foreclosure, that the mortgagee was entitled 
 to a vendor's lien on the land for the unpaid pur- 
 chase-money, and to judgment of foreclosure 
 therefor. Sup. Ct., 1876, Burger v. Hughes, 5 
 Hun, 180 ; AfE'd by Ct. App. 
 
 126. Parties ; adverse claimants. A 
 mortgagee cannot, in an action to foreclose his 
 mortgage, call into the suit parties claiming in 
 hostility to the title of the mortgagor, and 
 have the legal title adjudged in the equitable 
 action, as that title is a question of law, to be 
 determined in an action of ejectment. Sup. Ct., 
 
 1871, Brundage v. Domestic and Foreign Miss. So., 
 60 Barb. 204. 
 
 127. An assignee in bankruptcy acquires 
 the debtor's equity of redemption in mortgaged 
 premises, and is a necessary party to an action 
 for the foreclosure of the mortgage. Ct. App., 
 
 1872, Winslow V. Clark, 47 N. Y. (2 Sick.) 261. 
 
 128. An assignee in bankruptcy of a judg- 
 ment creditor of the mortgagor, who becomes 
 such assignee after the filing of the notice of lis 
 pendens in a foreclosure suit, is not a necessary 
 party to such suit. This is so under the present 
 as well as under the former bankrupt act. Sup. 
 Ct. Sp. T., 1872, Daly v. Burchell, 13 Abb. N. S. 
 264. 
 
 129. Assignees of the mortgagor for the bene- 
 fit of the creditors are proper parties defendant 
 to an action to foreclose the mortgage, but after 
 
 the assignment neither the mortgagor, nor, in 
 case of his death, his heirs are necessary parties 
 thereto. lb. 
 
 130. Assignee of judgment. One to whom 
 a judgment is assigned merely for the purpose 
 of enabling him to collect it for his assignor, is 
 not entitled to be made a party to an action to 
 foreclose a mortgage on premises which he has 
 sold and obtained a sheriff's deed for, under the 
 judgment. The assignor is the only party en- 
 titled to notice or to be made a party to the fore- 
 closure, and if he is made a party, his assignee 
 is foreclosed also, and cannot maintain an action 
 to redeem. N. Y. Supr. Ct., 1872, McKee v. Mm 
 phy, 34 N. Y. Supr. (2 J. & Sp.) 261. 
 
 131. DoTweress. A person claiming dower 
 by title paramount to the mortgage, cannot be 
 brought into court in a foreclosure action to 
 
 contest the validity of her dower. Ct. App. 
 181S,M( - ■ " • - ■^• 
 
 Sick.) 7. 
 
 1873, Merchants' Bank v. Thomson, 55 N, 
 
 . App, 
 . Y. (11 
 
 10 
 
 132. Judgment creditor. A foreclosure to 
 which a judgment creditor having a lien upon 
 the equity of redemption in the mortgaged prem- 
 ises is not made a party, does not in any way 
 affect his rights or the lien of his judgment, but 
 as to these, is a nullity. Ct.App., 1873, Remolds 
 v. Park, 63 N. Y. (7 Sick.) 36. 
 
 133. Where a married woman is the owner of 
 the equity of redemption of mortgaged premises, 
 a judgment creditor in an action of ejectment 
 against herself and husband for land claimed by 
 her adversely, is a necessary party to an action 
 for the foreclosure of the mortgage. Ct. App., 
 1871, Moi-ris V. Wheeler, 45 N. Y. (6 Hand,) 780, 
 
 134. But where such judgment is satisfied, in- 
 termediate the answer and trial, that obviated 
 the objection of his non-joinder, and the plaintiff 
 in foreclosure is entitled to judgment without 
 making him a party. lb. 
 
 135. Remaindermen, to whom the mort- 
 gaged premises were devised by the mortgagor, 
 after an intervenitig life estate, are necessary 
 parties to a foreclosure of the mortgage ; and 
 their equity of redemption will not be cut off 
 by a foreclosure and sale in an action against the 
 executors of the mortgagor and the life tenants 
 alone. Sup. Ct . 1872, Leggett v. Mut. Ins. Co. 
 ofN. Y., 64 Barb. 23. 
 
 136. Subsequent moitgagees of after ac- 
 quired rolling-stock of a railroad company, are 
 proper parties to an action for the foreclosure of 
 a prior mortgage, which, by its terms, covers 
 such- after acquired property, and will be bound 
 by the judgment therein. Com. App., 1873, 
 Benjamin v. Elmira, Jeff. Sf. Can. R. R. Co., 54 
 N. Y. (9 Sick.) 675. 
 
 137. The wife of a party who has merely a 
 contract for the purchase of lands, but no title, 
 is not a necessary party to a foreclosure ; nor is 
 any other dower claimant ; and the wife of a 
 subsequent incumbrancer is neither a necessary 
 or proper party defendant. Com. App., 1871, 
 Kay V. Whittaker, 44 N. Y. (5 Hand,) 566. 
 
 138. Summons, service of. Whether in 
 an action to foreclose a purchase-money mort- 
 gage, service of the summons on the husband is 
 not good as to the wife, so that she will be 
 bound by the judgment, query 1 If not, she may, 
 upon the death of her husband, take proceed- 
 ings to enforce her rights, but the judgment will 
 not be set aside for that cause during the life of 
 her husband. Sup. Ct., 1874, White v. Coulter, 1 
 Hun, 357. 
 
 139. A service of the summons in a fore- 
 closure action, by publication, as provided by 
 subd. 6, of sec. 136 of the Code, is binding upon 
 
MORTGAGE OF REAL ESTATE. 
 
 477 
 
 unknown parties defendant having an interest in 
 the mortgaged premises, though they are infants. 
 Ct. App., 1872, Wheeler v. Scully, 50 N. Y. (6 
 Sick.) 667. 
 
 140. Ilia pendens. A notice of Us pendens 
 in a foreclosure suit, filed before the filing of the 
 complaint, is irregular and ineffectual, hut an 
 amended notice filed at the same time with or 
 after the filing of an amended summons and 
 complaint authorized by order of court, is effect- 
 ual as notice to subsequent purchasers or incum- 
 brancers. Sup. Ct., Sp. T., 1872, Daly v. Burchell, 
 13 Abb. N. S. 264. 
 
 141. A lis pendens relates to and affects only 
 Toluntary alienations of the property in suit, by 
 the defendant therein. It has nothing to do with 
 independent parties asserting adverse rights 
 thereto. Sup. Ct., 1875, Becker v, Howard, 4 
 Hun, 369 ; Rev'g S. C, 47 How. 423. 
 
 142. A sale under a decree of foreclosure, does 
 not therefore cut off the title of a purchaser of the 
 mortgaged premises at a tax sale, who received 
 the comptroller's deed after the commencement 
 of the suit and filing of lis pendens. lb. 
 
 143. An offer of judgment, under sec. 385 
 of the Code, may be made in an action to fore- 
 close a mortgage, and if made in writing ten 
 days before the trial or verdict, it will cut off the 
 plaintiff's right to an extra allowance under sec. 
 309 ; but a mere tender of the amount due, with 
 costs, will not have that effect. N. Y. C. P., Sp. 
 T., 1875, Astar v. Palaehe, 49 How. 231. 
 
 144. Defenses. Another action pending. 
 In an action to foreclose a prior mortgage, a 
 subsequent mortgagee made a party defendant 
 cannot be compelled to litigate a controversy 
 between himself and the other defendant in re- 
 spect to his own mortgage, without his consent ; 
 and if he refuses to do so, the pendency of such 
 action cannot be set up as a defense to an action 
 to foreclose his mortgage. N. Y. Supr. Ct., 1873, 
 Fink V. Allen, 36 N. Y. Supr. (4 J. & Sp.) 350. 
 
 145. Counterclaim. In an action to fore- 
 close a mortgage given by the principal in a 
 joint bond to secure such bond, wherein both 
 the obligors are made defendants and a judg- 
 ment for deficiency asked against both, the de- 
 fendants may set up by way of counterclaim a 
 debt due from the plaintiff to the mortgagor or 
 principal debtor. Ct. App., 1875, Bathgate r. 
 Baskin, 59 N. Y. (14 Sick.) 533. 
 
 146. Invalidity. An answer in foreclosure 
 by which the defendant alleges the invalidity of 
 the mortgage in suit, and claims title to the prem- 
 ises under a subsequent mortgage, does not 
 set up a counterclaim but a mere equitable 
 defense. Sup. Ct., Sp. T., 1873, Caryl v. Wil- 
 liams, 7 Lans. 416. 
 
 147. An answer in such action, that the plain- 
 tiff's mortgage is of no binding force and effect, 
 and no lien upon the premises, amounts simply 
 to a conclusion, without facts to support it, and 
 is unavailing. lb. 
 
 148. Judgment that mortgage is fraudu- 
 lent. Where, prior to the commencement of a 
 foreclosure action, judgment had been perfected 
 in an action, notice of the pendency of which was 
 filed after the execution but before the filing of 
 the mortgage, declaring the conveyance of the 
 premises to the mortgagor fraudulent as to the 
 creditors of his grantor and directing a convey- 
 ance to the receiver of the latter, which had 
 accordingly been executed. Held, that the 
 plaintiff was bound by the judgment though not 
 a party to it, that his remedy was by an action to 
 redeem, or for the avails of the premises (if they 
 had been sold), exceeding the claims of the 
 
 receiver, and as his right to neither relief was sug- 
 gested on the trial, and the complaint had no such 
 aspect, it waS properly dismissed. Com. App. 
 1873, Ayrault v. Murphy, 54 N. Y. (9 Sick.) 203. 
 
 149. Misappropriation. If a bond and 
 mortgage executed by a married woman upon 
 her separate estate, and entrusted to an agent 
 for the purpose of raising money for the benefit 
 of her husband and another person, are delivered 
 by him as security for a judgment against third 
 parties, even though the agent at the same time 
 delivers the same party a note made by a third 
 person and obtains a loan thereon of the amount 
 desired, which he applies for the benefit of the 
 husband and other person, there is a clear mis- 
 appropriation of the mortgage, and a want of 
 consideration, which are • good defenses to the 
 mortgage in the hands of a party to the trans- 
 action. Ct. App., 1872, Craver v. Wilson, 14 
 Abb. N. S. 374; S. C.,47 N. Y. (2 Sick.) 673. 
 
 150. Proof that the plaintiff advanced the 
 money upon an entire agreement to do so and to 
 stay proceedings on such judgment, upon receiv- 
 ing the bond and mortgage and note, could not 
 improve the plaintiff's case. lb. 
 
 151. Payment to mortgagee. In an action 
 to foreclose a mortgage by one claiming as 
 assignee, the defendant may set up as a defense, 
 that the plaintiff procured the assignment to 
 himself by fraud, and obtained no title thereby, 
 and that he has paid the mortgage debt to the 
 mortgagee, and taken a discharge from him. 
 Sup. Ct., 1871, Hall V. Erwin, 60 Barb. 349 ; Mo'd 
 57N. Y. (12Sick.) 643. 
 
 152. Payments made by a mortgagor to the 
 mortgagee, without notice that the latter had 
 previously assigned the mortgage and parted 
 with all his interest therein are valid. Sup. Ct., 
 1875, Van Keuren v. Corkins, 4 Hun, 129. 
 
 153. No presumption that the payments were 
 not in good faith can arise from the omission of 
 the mortgagor to require a delivery up of the 
 securities, where the assignee allows them to 
 remain in the hands of the mortgagee, and per- 
 mits him to receive payments thereon. lb. 
 
 154. Usury between one holding a contract 
 for the purchase of lands and his assignee, to 
 whom the premises are conveyed at the request 
 of the former, is no defense to an action by the 
 grantor for the foreclosure of a mortgage given 
 by such assignee for a balance of purchase 
 money. Com. App., 1871, Kay v. Whittaker, 44 
 N. Y. (5 Hand,) 565. 
 
 155. Facts which might form the basis of an 
 independent litigation between co-defendants, 
 but are in no way connected with the mortgagee 
 or his claim, cannot be set up as a defense to a 
 foreclosure, nor can they be litigated or adjusted 
 in such action. lb. 
 
 156. A subsequent incumbrancer cannot de- 
 fend on the ground that the conditions of the 
 bond are not contained in the mortgage. A mere 
 reference in the mortgage to the bond, is suffi- 
 cient to incorporate into the former all the terms 
 and conditions of the bond, and to give notice 
 thereof to all persons interested. lb. 
 
 157. Summary trial. Where the answer of 
 any defendant presents what may be claimed to 
 be a defense to the plaintiff's case, or any part 
 of it, a summary trial is not autliorized by rule 
 71 (present rule 72), and it' is, therefore, error 
 for the court, at special terra, upon a mere 
 motion for judgment, in such a case, to overrule 
 the defense or matter set up in the answer, and 
 direct judgment for the plaintiff. N. Y. Supr. 
 Ct., 1871, Stuyvesantv. Browning, 33 N. Y. Supr. 
 (IJ. & Sp.) 203. 
 
478 
 
 MORTGAGE OF REAL ESTATE. 
 
 168. Ordinarily, the court can orerrule a de- 
 fense only upon a demurrer, or upon a motion 
 for judgment upon it as frivolous, or a motion to 
 strike it out as irrelevant. lb. 
 
 159. Stay. The holder of a third mortgage, 
 who commences an action for the foreclosure 
 thereof simultaneously with the commencement 
 of an action to foreclose the first mortgage, is 
 entitled to have the issue joined in his action, 
 notwithstanding judgment may have been first 
 obtained in such other action, and the mort- 
 gaged premises advertised for sale thereon ; and 
 a stay of proceedings ought not to be granted on 
 motion or the mortgagor until after the sale. 
 The third mortgagee is not bound to seek his 
 remedy against the surplus money on the first 
 mortgage, the referee as to the surplus moneys 
 having no power to try such issue. Sup. Ct., 
 Sp. T., 1871, Dailey v. Kingon, 41 How. 22. 
 
 160. In an action to foreclose a mortgage, 
 where the complaint alleges that the plaintiff 
 has availed himself of an option contained in 
 the bond to declare the whole principal sum due 
 in case the interest should remain unpaid and in 
 arrear for thirty days, and asks judgment to 
 that effect, an order cannot be granted staying 
 proceedings until further default, except upon 
 proof of fraud or improper conduct on the part 
 of the plaintiff. Ct. App., 1873, Bennett v. Ste- 
 venson, 53 N. Y. (8 Sick.) 508. 
 
 161. Receiver of rents, duties of. Where 
 tenants of mortgaged premises are not made 
 parties to an action to foreclose the mortgage, a 
 receiver of the rents appointed in such action 
 should take measures to compel them to attorn 
 to him ; otherwise he cannot proceed against 
 other parties who claim and collect such rents 
 as for contempt. Sup. Ct., 185, Bowery Savings 
 Bank v. Richards, 3 Hun, 366. 
 
 162. The judgment. In an action to fore- 
 close a mortgage on leasehold property, it is 
 improper to insert in the judgment a direction 
 to pay taxes and assessments out of the pur- 
 chase money. N. T. Supr. Ct., 1871, Stuyvesant 
 T. Browning, 33 N. T. Supr. (1 J. & Sp.) 203. 
 
 163. On foreclosure of a mortgage, where the 
 premises have been conveyed in different par- 
 cels, the court has power to direct the order of 
 sale of the different parcels, arising out of the 
 equities of the different parties interested in the 
 equity of redemption, as between themselves. 
 Com. App., 1872, Erie County Savings Bank v. 
 Roop, 48 N. Y. (3 Sick.) 292. 
 
 164. Plaintiff's mortgagor, after executing the 
 mortgage in suit, conveyed to B. B, after mort- 
 gaging the entire farm to Q for $1,200, and exe- 
 cuting a third mortgage to T upon a large 
 portion of it, conveyed the part not covered 
 by the last mortgage to C. He then conveyed 
 all but 20 aqres of the balance to H S, subject 
 to the mortgages to plaintiff and T, which H S 
 assumed and agreed to pay, and on the same 
 day conveyed the remaining 20 acres to E S, 
 subject to the same mortgages. For a part of 
 the purchase money, H S executed to B a mort- 
 gage for $3,500, covering the land conveyed, by 
 which it was stipulated that no part of the same 
 should become due or payable until all liens 
 and incumbrances existing on said premises, ex- 
 cepting the two mortgages assumed by him, 
 should be fully paid and discharged. Q having 
 foreclosed without making plaintiff a party, 
 and, under the decree, sold, subject to incum- 
 brances, the parcel conveyed to H S, of which 
 one M received the sheriff's deed, — 3eld, that 
 the lands so conveyed were the primary fund 
 for the payment of the mortgage to Q, for the 
 
 reason that he retained an amount of the pur 
 chase money sufficient for the purpose ; but that 
 they were also the primary fund for the payment 
 of plaintiff's mortgage, and the purchaser, M, 
 had no equity to require that the lands sold to 
 E S be first sold to satisfy the latter mortgage. 
 Ct. App., 1872, Hort V. Wandte, 50 N. Y. (6 Sick.) 
 381. 
 
 165. Upon foreclosure of two mortgages given 
 to a bank by two co-partners, each mortgaging 
 his own land to secure loans and discounts made 
 or to be made by the bank to or for the firm, it 
 appearing that one of the partners had subse- 
 quently conveyed- his land to the wife of the 
 other by deed containing a clause whereby she 
 assumed to pay the mortgage to the bank, and 
 her husband had at the same time obligated 
 himself by a separate instrument to pay the 
 same debt, and»that both husband and wife had 
 subsequently mortgaged their several parcels of 
 the lands, on which the bank held such mort- 
 gages, to different parties, the husband's mort- 
 gage being given first, — Held, that neither the 
 original mortgagor, nor the wife, his grantee, nor 
 her mortgagee, had any equity to have her land 
 exonerated from the debt, or to have her hus- 
 band's laud sold first to pay the bank debt, but the 
 lands of each should be compelled to pay its due 
 proportion thereof. Sup. Ct., Sp. T., 1873, Na- 
 tional State Bank of Troy v. Hibbard, 45 How. 
 280. 
 
 166. A judgment in an action for the fore- 
 closure of a mortgage of leasehold interests, 
 which directs a sale, and that the sheriff, out of 
 the proceeds, after deducting fees and expenses, 
 "and any lien or liens upon said premises so 
 sold, at the time of such sale, for taxes or assess- 
 ments and all rents due " by the mortgagor upon 
 the leases, pay the plaintiff his costs and the 
 amount found due, &c., is entire and indivisible, 
 and in effect simply directs a sale free from in- 
 cumbrances ; and parties interested in the pro- 
 ceeds cannot avail themselves of the enhanced 
 price resulting from such sale, and at the same 
 time repudiate the directions under which it was 
 obtained. Com. App., 1874, Catlin v. Grissler, 
 57 N. Y. (12 Sick.) 363. 
 
 167. Such directions as to rents are proper, 
 because the purchaser will take the premises 
 subject to be dispossessed for non-payment of 
 rent, and rent in arrear is, therefore, in effect, 
 a lien, proper to be provided for with other 
 liens ; and as to taxes and assessments, even 
 though the interests sold are leasehold, and they 
 are for the lessor to pay, it is necessary, in order 
 to secure the full value at the sale, that the pur- 
 chaser should acquire title free of incumbrance, 
 lb. 
 
 168. Where there is a controversy between 
 the mortgagee and a grantee of the mortgagor 
 as to the right to remove an erection made by 
 the latter on the mortgaged premises, it is con- 
 venient and proper that such controversy should 
 be settled before the sale; and if the right is 
 established, the court may, by the judgment in 
 the action, adjudge and protect it, and may 
 aiithorize the removal of the building before the 
 sale, or provide that the sale be subject to the 
 right of the defendant to remove it afterward. 
 Ct. App., 1874, Brown v. Keeney Set. Cheese Asso., 
 59 N. Y. (14 Sick.) 242. 
 
 169. Upon foreclosure by action of a mort- 
 gage conditioned for the support of the mort- 
 gagee, no relief can be granted for the neglect 
 to support after the commencement of the 
 action. Sup. Ct., 1875, Morrison v. Morrison, 4 
 Hun, 410. 
 
MORTGAGE OP REAL ESTATE. 
 
 479 
 
 170. A provision in a mortgage, that, in case 
 of the non-payment of taxes by the mortgagor 
 by a specified time, the whole sum secured 
 by the mortgage shall become due, is valid, and 
 in an action to foreclose the mortgage on the 
 ground of such default, the court can no more 
 relieve against that condition than it could 
 against a condition that the whole should be- 
 come due upon non-payment of any part of the 
 principal or interest. Sup. Ct., Sp. T., 1873, 
 O'Connor v. Shipman, 48 How. 126. 
 
 171. Sale of all. Even though the amount 
 due on the mortgage may be raised by a ■ sale 
 of a portion of the mortgaged premises, the 
 court may direct a sale of the whole. Sup. Ct., 
 1875, Deforest v. Farley, 4 Hun, 640. 
 
 172. Supplemental order. Where a judg- 
 ment in foreclosure provides for a sale of the 
 mortgaged premises for the payment of interest 
 and one instalment of the principal only, and 
 the mortgagee has, since commencing the ac- 
 tion, availed himself of an option contained in 
 the mortgage to declare the entire principal due, 
 for default for 30 days to pay the interest, the 
 court may, by supplemental order, direct a sale 
 for the payment of such principal, although the 
 default and declaration of option were both be- 
 fore judgment, and the complaint, claiming 
 only the interest and instalment due, remains 
 unamended. Ct. App., 1872, Malcolm v. Allen, 
 49 N. Y. (4 Sick.) 448. 
 
 178. Deficiency, judgment for. The gen- 
 eral power residing in the court to render a per- 
 sonal judgment for deficiency against the mort- 
 gagor in a foreclosure action, does not authorize 
 such a judgment against a non-resident defend- 
 ant, who has neither appeared in the action nor 
 been served with process within the State. The 
 statute authorizing proceedings against non- 
 residents upon service of the summons by pub- 
 lication, interpreted in harmony with the ne- 
 cessity which called for its enactment, author- 
 izes only a judgment in rem, not one in per- 
 sonam. Ct. App., 1878, Schwinger v. Hickok, 58 
 N. Y. (8 Sick.) 280. 
 
 174. Costs must be adjusted before sale. 
 Where a judgment obtained by plaintiff, which 
 is more favorable than an offer previously 
 made, is modified by the General Term and re- 
 duced to the amount of the offer, with leave to 
 either party to apply for a re-adjustment of 
 costs, the plaintiff cannot enforce his judgment 
 by sale until the application for that purpose 
 hap been made and determined, and until then 
 the court will postpone the sale. Sup. Ct., Sp. 
 T., 1871, Penfield v. James, 12 Abb. N. S. 247. 
 
 175. Effect of. In an action to foreclose a 
 mortgage not signed by the wife of the mort- 
 gagor, where there is no allegation in the com- 
 plaint that the mortgage was prior, or supe- 
 rior or hostile, to her right or interest, she is 
 not concluded, although a party to the suit, by 
 a judgment in general terms foreclosing the de- 
 fendants of aU rights in the premises. Ct. App., 
 1873, Merchants Bank v. Thomson, 56 N. Y. (10 
 Sick.) 7. 
 
 176. The inchoate right of dower not being 
 In issue, there could be no valid adjudication 
 adverse to it. lb. 
 
 177. Where, on foreclosure of a mortgage by 
 one to whom it was assigned as collateral se- 
 ciirity for a debt due him from his assignor, 
 such assignor and the mortgagee are made par- 
 ties, under a general allegation in the complaint 
 that they have or claim some interest in the 
 property, which is subsequent to the mortgage, 
 and in default of an answer judgment is ren- 
 
 dered foreclosing all their rights and interests 
 in the premises, under which the premises are 
 sold and bid in by the plaintiff for an amount 
 less than the debt due him, his assignor and the 
 mortgagee are bound by the judgment until re- 
 versed or modified, and all their rights are 
 thereby extinguished, and the mortgagee cannot, 
 as purchaser of the equity of redemption, main- 
 tain an action to redeem from the sale. Ct. 
 App., 1874, Bloomer v. Sturges, 58 N. Y. (13 
 Sick.) 108. 
 
 178. A subsequent mortgagee, made a party ■ 
 to an action to foreclose a prior mortgage, but 
 whose mortgage was not paid out of the pur- 
 chase-money at the sale, although sufficient for 
 that purpose, cannot foreclose his mortgage as 
 against a bona fide purchaser from the pur- 
 chaser at the foreclosure sale, holding a full 
 covenant warranty deed of the premises. Sup. 
 Ct., 1874, Wood y. McGlughan, 2 Hun, 150. 
 
 179. Where it appeared after a sale under a 
 decree of foreclosure that a mortgage of the 
 premises had been executed by a grantee there- 
 of, whose deed had not been recorded, and an 
 assignment of it to one not made a party to the 
 suit had been recorded before the filing of the 
 notice of pendency of the action, neither the 
 plaintiff nor his attorney having previously any 
 actual notice thereof; — Held, that the parties 
 thereto were foreclosed by the judgment, though 
 not made defendants in the suit. Sup. Ct., Sp. 
 T., 1875, Kipp V. Brandt, 49 How. 358. 
 
 180. Payment of liens. Although the cus- 
 tomary article included in the terms of sale un- 
 der a foreclosure judgment, providing for the 
 payment by the referee of all taxes, liens and 
 assessments on the mortgaged premises, — which 
 requires the purchaser to produce to such ref- 
 eree proof of such liens and vouchers for the 
 payment thereof, is proper and reasonable and 
 excuses the referee from the duty of examining 
 as to the existence and amount of the liens and 
 from responsibility for accuracy therein ; yet it 
 may not be held to override or limit the direc- 
 tion in the judgment; and if the referee has 
 knowledge of existing liens, he will not be jus- 
 tified in paying over the purchase-money as if 
 there were none, although the purchaser fails in 
 his proofs. Ct. App., 1873, Easton v. Pickersgill, 
 55 N. Y. (10 Sick.) 310. 
 
 181. The remedy of the referee, in case of in- 
 action in the purchaser, is by application to the 
 court for its direction. lb. 
 
 182. Bankruptcy proceedings, effect of. 
 The commencement of proceedings in bank- 
 ruptcy against the owner of the equity of re- 
 demption in mortgaged premises, does not sus- 
 pend an action in a State court already com- 
 menced for the foreclosure of the mortgage, nor 
 does such action become thereby defective for 
 want of parties ; and where no assignee in bank- 
 ruptcy is appointed before final judgment in 
 such action, the judgment, in the absence of an 
 injunction restraining proceedings, will be regu- 
 lar, and a purchaser under it will acquire a good 
 title. Ct. App., 1873, Lenihan v. Hamann, 56 N. 
 Y. (10 Sick.) 662. 
 
 183. Irregularities, remedy for. If the 
 judgment in foreclosure sets forth as due an 
 amount which includes a part of the principal 
 sura not due until after the commencement of 
 the action, in addition to the amount reported 
 as then due, the remedy of the defendant is by 
 motion to correct the judgment and conforni it 
 to the report, and not by appeal. Sup. Ct., 187^ 
 Walbridge v. James, 4 Hun, 793. 
 
 184. If the referee was not duly appointed to 
 
480 
 
 MORTGAGE OF REAL ESTATE. 
 
 make the sale, by fit and proper words in the 
 judgment, the remedy of the party aggriered is 
 by motion at the Special Term, not by appeal. lb. 
 
 185. Surplus moneys. In a foreclosure ac- 
 tion, the court has power, when both claimants 
 are before it and the contest is between them 
 only, to make a final disposition of the fund, in 
 accordance with the covenants existing between 
 them and the equities resulting therefrom. Ct. 
 
 • App., 1871, Clarkson v. Skidmore, 46 N. Y. (1 
 Sick.) 297 ; Rev'g S. C, 2 Lans. 238. 
 
 186. The Supreme Court has power to dis- 
 tribute the surplus on a mortgage foreclosure, 
 in case of the death of the mortgagor, among 
 the persons entitled thereto ; and it will not 
 therefore direct the county treasurer to pay 
 over such surplus in his hands to the surrogate. 
 Wliether oh. 658, Laws 1867 (7 Edm. Stats. 142), 
 applies to such a case, query ? Sup. Ct., Sp. T., 
 1871, Loudcs V. Van Allen, 11 Abb. N. S. 427. 
 
 187. The holder of a secoud mortgage given 
 to secure a prior indebtedness, the time for pay- 
 ment of which is extended in consideration 
 thereof, is entitled to priority in the distribu- 
 tion of surplus moneys arising upon foreclosure 
 of a prior mortgage, over a judgment creditor 
 whose judgment stood secured on appeal at the 
 time such mortgage was given. Sup. Ct., 1874, 
 Union Dime Savings Inst. v. Duryea, 3 Hun, 210. 
 
 188. "Where three lots are sold together upon 
 foreclosure of a first mortgage, such lots being 
 of equal value, a second mortgagee, having a 
 lien upon only two of them, is entitled to prior- 
 ity in the distribution of the purchase money 
 over one holding a mechanic's lien upon the 
 three lots, acquired subsequent to his mortgage. 
 Sup. Ct., 1874, Oppenheimer v. Walker, 3 Hun, 30. 
 
 189t The costs and expenses of the proceed- 
 ings for distribution, are properly chargeable to 
 the surplus fund. lb. 
 
 190. A vendee of land who, in an action for 
 specific performance of his contract, has recov- 
 ered a judgment for the purchase money paid, 
 the vendor being unable to perform, which is 
 adjudged to be a lien on the surplus moneys ari- 
 sing on a sale of the premises upon a prior 
 mortgage lien, from the time of filing his lis 
 pendens, is entitled to priority of payment of his 
 judgment out of such surplus moneys as against 
 a judgment creditor whose judgment was recov- 
 ered after the filing of such lis pendens, but he is 
 not entitled to interest thereon from the time of 
 such filing. Sup. Ct., 1874, Hull t. Spratt, 1 
 Hun, 298. 
 
 191. — reference as to. The reference as to 
 •surplus moneys is for the purpose of ascertain- 
 ing liens and claims about which there is no 
 dispute, and settling their priorities, not for the 
 investigation and determination of contested 
 claims. The latter should be left to be disposed 
 of by action, but if referred and reported on, 
 the court should not adopt the report unless 
 satisfied by the result beyond all doubt. Sup. 
 Ct., 1876, Union Dime Savings Inst, of N. Y. v. 
 Osley, 4 Hun, 657- 
 
 192. Upon a reference as to surplus moneys, 
 to ascertain the amount due a particular judg- 
 ment debtor " and any other person which is a 
 lien upon such moneys," the attorney of such 
 judgment creditor may come in and claim a 
 portion by virtue of his lien as attorney on the 
 judgment recovered against the mortgagor, and 
 the same may be allowed. Sup. Ct., 1874, At- 
 lantic Savings Bank v. Hiler, 3 Hun, 209. 
 
 198. Where no objection is taken before the 
 referee to his appearance, it cannot be raised on 
 appeal from the order confirming the report. lb. 
 
 194. The court has the most ample power to 
 confirm, set aside, or refer back for further 
 proofs, the report of a referee as to the rights 
 of claimants to surplus moneys, and while the 
 moneys remain in the court undistributed, it 
 may at any time vacate the order confirming 
 the report, and refer the matter back for fur- 
 ther proof. Sup. Ct., 1874, Mutual L. Ins. Co. 
 ofN. Y. V. Salem, 3 Hun, 117. 
 
 196. Sale, what passes by. Where one oc- 
 cupying the relation both of lessor of premises 
 and mortgagee of the term and lease, after ob- 
 taining possession under a warrant of disposses- 
 sion against the lessees, commenced a fore- 
 closure of the mortgage, the complaint in which 
 prayed and the judgment directed a sale of the 
 premises mortgaged, neither reciting that the 
 term conveyed was.eubject to the payment of 
 rent, but the judgment directed the sheriff to 
 pay from the proceeds, the amount due on the 
 lease for rent, and the sale was to a party to the 
 action, — Held, that the latter became simply an 
 assignee of the term and lease and took subject 
 to the obligation to pay rent, which was not 
 released or extinguished. Ct. App., 1874, People 
 ex rel. Grissler v. Dudley, 58 N. Y. (13 Sick.) 323. 
 
 196. A sale upon foreclosure of a mortgage 
 containing no convenants of warranty, extin- 
 guishes the relation of mortgagor and mortgagee 
 between the parties, and the mortgagor is there- 
 after under no duty to protect the title of the 
 purchaser ; he may therefore acquire an out- 
 standing and paramount title to the premises, 
 which will not inure to the benefit of the latter. 
 Ct. App., 1874, Jackson v. Littell, 66 N. Y. (11 
 Sick.) 108. 
 
 197. Completion of sale, -when compel- 
 led. Mere lapse of time, after the date fixed for 
 the completion of a purchase on foreclosure, 
 will be no bar to a proceeding to compel the 
 purchaser to fulfill, unless the delay has been of 
 itself unreasonable and unexcused, or has made 
 way for intermediate and material changes de- 
 trimental to such purchaser. Ct. App., 1873, 
 Merchants Bank v. Thomson, 56 N. Y. (10 Sick.) 7. 
 
 198. Delay arising either from the indecision 
 of the purchaser in determining whether he will 
 or will not take the land, or from an untenable 
 objection taken by him, wiU not be allowed him 
 as a defense. lb. 
 
 199. Nor wiU lapse of time alone be consid- 
 ered, where it is occasioned by a reference, 
 made at the request of the purchaser, to enable 
 him to establish his objections. lb. 
 
 200. Interest should not be required of the 
 purchaser where he has had no possession and 
 where, prior to the commencement of proceed- 
 ings to compel the completion of the purchase, 
 the vendor was not ready to make a good title, 
 lb. 
 
 201. Bid, virhen relieved against. If the affi- 
 davit, upon which an order for publication was 
 obtained against non-resident defendants who 
 did not appear, or the order itself, do not show 
 that such defendants could not with due dili- 
 gence be found within this State, the order is 
 void, and the judgment inoperative as to those 
 defendants, and on application of the purchaser 
 he should be relieved from his bid. Sup, Ct, 
 1874, Bixby v. Smith, 3 Hun, 60. 
 
 202. Upon foreclosure of a mortgage of a 
 leasehold interest in premises for a term of 
 years, if tenants in possession at the commence- 
 ment of the action, and who remain in pos- 
 session at the time of the sale, were not made 
 parties to the action, the purchaser cannot be 
 compelled to complete his purchase, since he 
 
MORTGAGE OF REAL ESTATE. 
 
 481 
 
 cannot by any proceeding under the judgment 
 obtain possession. Sup. Ct., 1874, Birsch v. 
 Livingston, 48 How. 243 ; S. C, 3 Hun, 9. 
 
 203. A mortgagor, upon whom the summons, 
 in an action to foreclose his purchase money 
 mortgage, was served both for himself and his 
 wife, but who entered an appearance only for 
 himself, cannot, after bidding in the property at 
 the foreclosure sale, be relieved from his bid on 
 the ground that his wife was not bound by the 
 judgment, because he purchased with full knowl- 
 edge of the facts, and the effect of such pur- 
 chase was to restore lier inchoate right of dower, 
 which only could be affected by the foreclosure. 
 Sup. Ct., 1874, Watson v. Church, 3 Hun, 80. 
 ■ 204. On a sale of lands under the order of the 
 court, if the title proves defective the innocent 
 bidder must be repaid his proper expenses, 
 which include the deposit or percentage paid by 
 him on the sale, the expenses of investigating 
 the title, and tlie costs of the motion for repay- 
 ment, if he is put to a motion. Ct. App., 1873, 
 Raynor v. Selmes, 52 N. Y. (7 Sick.) 579; Rev'g 
 S. C, 7 Lans. 440. 
 
 205. The plaintiff should bear the loss, if oc- 
 casioned by liis negligence in not making the 
 owner of the equity of redemption a party, or 
 giving him notice of the pendency of the action 
 or of the proceedings, in it, and the bidder at 
 the first sale should be reimbursed out of his 
 share of the moneys raised by the second sale, 
 and no part of the loss or expense sliould be 
 deducted from the surplus moneys belonging to 
 the owner of the equity of redemption. lb. 
 
 206. A purchaser at a sale on foreclosure of a 
 mortgage is bound to know that he is getting 
 only the equity of redemption, and he cannot 
 refuse to carry out his purchase on account of 
 defects of title existing prior to the execution 
 of such mortgage. Sup. Ct., 1875, Fryer v. 
 Bockfeller, 4 Hun, 800. 
 
 207. A purchaser at a foreclosure sale will not 
 be relieved from completing his purchase on the 
 ground of the existence of incumbrances, where 
 the terms of sale expressly provide tliat such in- 
 cumbrances will be allowed to the purchaser out 
 of the purchase-money on his producing vouch- 
 ers therefor. Sup. Ct., 1873, Lenihan v. jSamann, 
 14 Abb. N. S. 274. 
 
 208. Neither is it ground for relief, that pro- 
 ceedings in involuntary bankruptcy liave been 
 commenced against the owners of the equity of 
 redemption since the commencement of tlie fore- 
 closure suit, especially, where the bankruptcy 
 court permits sucli suit to proceed and no as- 
 signee is appointed prior to tlie sale therein. lb. 
 
 209. If one wiio bids off land at a sale on fore- 
 closure and pays down 10 per cent, of the pur- 
 chase-money, neglects to complete the purchase 
 according to the terms of tlie sale, but, upon a 
 re-sale by the referee without application to the 
 court, agatn bids off the premises, tliough at a 
 less price than before, and pays 10 per cent, 
 thereof I he is entitled to complete the purchase 
 by paying the balance of the amount bid on the 
 second sale, after deducting all the moneys paid 
 by him on both sales. Sup. Ct., Sp. T., 1873, 
 Home Ins. Co. v. Jones, 45 How. 498. 
 
 210. Setting aside judgment. If an action 
 noticed for trial before one justice at a Special 
 Term, is, by consent of the attorneys for the par- 
 ties, tried before another justice at an adjourned 
 Special Term held at the time specified in the 
 notice for trial, but in another room of the build- 
 ing named, the irregularity, if any, is waived, 
 and is no ground for setting aside the judgment. 
 Sup. Ct., 1874, White v. Coulter, 1 Hun, 857. 
 
 31 
 
 211. Where one party nominates a referee and 
 the other party approves of him, his appoint- 
 ment by the court is no violation of rule 73, and 
 no irregularity. lb. 
 
 212. A judgment of foreclosure, in an action 
 tried by the court without a jury, will not be set 
 aside because irregularly entered within four 
 days of the filing of the decision, if the defend- 
 ant consented to its entry and subsequently al- 
 lowed the sale to be confirmed. lb. 
 
 213. The provision of the Code relative to the 
 entry of judgment is so far directory, that, in 
 the absence of injury to the defendant, a neglect 
 of it will not be considered. lb. 
 
 214. Where notice of the pendency of the ac- 
 tion was properly filed, defects in the proof of 
 filing, not objected to by the defendant before 
 judgment, will not render the judgment void ; 
 but, in the absence of injury to the defendant, 
 the irregularity may be disregarded or amended, 
 under sees. 173 and 176 of the Code. lb. 
 
 215. It seems, that only persons claiming under 
 tlie defendants, but not themselves parties to 
 tlie action, can take advantage of an omission to 
 fill a notice of pendency of the action. lb. 
 
 216. Setting aside sale. No action will lie to 
 set aside a sale under a judgment of foreclosure ; 
 but any person whose rights are injuriously af- 
 fected by the judgment or Sale, may move to set 
 the same aside, although not a party to the suit ; 
 and that is his only remedy. Sup. Ct., 1872, 
 Kellogg v. Howell, 62 Barb. 280. 
 
 217. W^i^re a motion to set aside such a sale 
 is not based upon technical or formal irregulari- 
 ties, the provision of Rule 46, requiring a specifi- 
 cation of such irregularities in the notice of mo- 
 tion does not apply. lb. 
 
 218. Where the plaintiff or mortgagee becomes 
 the purchaser at the sale, and no rights of tliird 
 parties have intervened, a re-sale will be ordered 
 upon less evidence of fraud, surprise, accident 
 or misconduct of the officer, than where a strang- 
 er is the purchaser. lb. 
 
 219. A sale will not be set aside merely be- 
 cause a higher price may reasonably be antici^ 
 pated on a re-sale. lb. 
 
 220. Where the rights of a purchaser of the 
 equity of redemption, and his intention either to 
 pay the judgment, take an assignment of it, or 
 bid in tlie premises at the sale, were known to 
 the plaintiff and his attorney prior to the sale, 
 and sucli sale took place' under such circum- 
 stances tliat the agent of sucli purchaser, present 
 at the place for the purpose of bidding, did not 
 know when it was actually taking place, and no 
 effort was made to notify him, — Held, that the 
 sale might properly be set aside on the ground 
 of surprise, the party applying being required 
 to give a bond to secure the amount of his pro- 
 posed bid on a re-sale. lb. 
 
 221. — for bad description. Where the 
 sheriff in selling mortgaged premises on a decree 
 of foreclosure, at the request of the mortgagor 
 sold the south half, and it was bid in for such 
 morigagoi:, —HM, that the fact that a line divid- 
 ing the premises in two equal parts would cut 
 off a small portion from tlie dwelling house, and 
 that the description gave no starting point for a 
 division, was not good ground for setting aside 
 the sale. Ct. App., 1874, Knapp v. Conger, 59 
 N. Y. (14 Sick.) 635. 
 
 222. Upon a motion to set aside the sale, made 
 by the party in whose behalf the purchase was 
 made, if the motion is denied, the court having 
 all the facts before it, may properly order such 
 party to complete the sale by accepting the deed 
 and paying the residue of the purchase-money. lb. 
 
482 
 
 MUNICIPAL CORPORATIONS. 
 
 223. — for inadequate price. A sale of 
 property, the market value of which is not above 
 $40,000, to the mortgagee for $35,000, the mort- 
 gagor having notice that he would not bid over 
 that amount, will not be set aside on the ground 
 of inadequate price, in the absence of fraud, 
 misconduct or surprise. Sup. Ct., 1874, White 
 V. Coulter, 1 Hun, 357 ; Modified by Ct. App. 
 
 224. Inadequacy of price is not sufficient 
 ground for ordering a re-sale, where there is no 
 ptetence of fraud on the part of the purchaser, 
 and the inadequacy alleged is small and was 
 caused in part by the failure of the defendant 
 to complete his purchase at a former sale, and 
 Tpy liis subsequent acts. Sup. Ct. Chambers, 
 1875, Burckell v. Voorhis, 49 How. 247. 
 
 225. — for fraud or irregularity. The 
 Supreme Court has power to set aside and va- 
 cate a sale of lands made under a. judgment upon 
 foreclosure of a mortgage, or pursuant to any 
 order of the court by an officer thereof, and to 
 order a re-sale, even tliough tliere be no fraud 
 and the sale is in all respects regular; much 
 more where there is fraud or irregularity. Ct. 
 App., 1875, Hale v. Clauson, 60 N. Y. (15 Sick.) 
 339. 
 
 226. This power may be exercised as against 
 a bona fide grantee of the purchaser at the sale, 
 as he takes the place of his grantor and is sub- 
 ject to the same jurisdiction. lb. 
 
 227. Where the proceedings upon a sale under 
 a decree of foreclosure and sale are entirely 
 regular and free from fraud, tlie remedy of a 
 party entitled to relief on a mere equity is by 
 motion in the same action ; but where the sale 
 has been fraudulently conducted, to the preju- 
 dice of a party interested, he may maintain an 
 action to set it aside, even though he may have 
 a concurrent remedy by motion. Sup. Ct., 1875, 
 Vandercook v. Cohoes Savings Inst., 5 Hun, 641. 
 
 228. A party to a foreclosure action who 
 wishes the premises sold in a particular order, 
 should procure a clause to that effect to be in- 
 serted in the judgment; or, after the entry of 
 judgment, move for an order directing the re- 
 feree how to sell ; or he may, after the sale, 
 move to set it asidebecauseof a disregard by the 
 referee of any proper request made by him in 
 respect to it. lb. 
 
 229. Re-aale. A court of equity will not 
 order a re-sale for an irregularity in form, when 
 it is apparent that the purcliaser cannot be pre- 
 judiced thereby. Sup. Ct., 1875, Knight v. Mo- 
 loney, 4 Hun, 33. 
 
 230. A purchaser of land on a mortgage fore- 
 closure, to which both he and his wife were 
 made defendants on account of his interest in 
 the premises, cannot be injured by the irregu- 
 larity of his wife having appeared by attorney ; 
 and a re-sale should not be granted on that ac- 
 count, but he should be required to complete his 
 purchase. lb. 
 
 231. If a re-sale be ordered, in such a case, on 
 the refusal of the purchaser to complete his pur- 
 chase, he should be charged with the expenses 
 thereof, but not with those of proceedings taken 
 to cure the irregularity, and foreclose the wife's 
 interest in the premises. lb. 
 
 232. Motion, when to be made. The court 
 may in its discretion order a sale opened, 
 althbugh the report of sale has been confirmed 
 and the referee's deed delivered to the purchaser ; 
 and the fact that no notice of the motion 
 was served upon the purchaser, will not invali- 
 date the order, if he had actual notice and ap- 
 peared anS contested the motion. Ct. App. 1874, 
 Crane v. Stiger, 58 N. Y. (13 Sick.) 625. 
 
 233. A defendant in foreclosure who desires 
 to have the judgment and sale set aside for 
 irregularities in the proceedings, should move 
 therefor as soon as practicable after discovery 
 of the defect, or sufficient notice thereof to put 
 him upon the inquiry. Sup. Ct., 1874, Depew v. 
 Dewey, 46 How. 441. 
 
 234. Such relief cannot be granted on a mo- 
 tion made after the lapse of the time limited by 
 statute for bringing an action in equity to re- 
 deem, lb. 
 
 235. Writ of assistance. The granting of 
 a writ of assistance, where the person in posses- 
 sion claims to retain it by virtue of some right 
 independent of the judgment and consistent 
 therewith, e. g. an agreement that the purchaser 
 should buy for his benefit, is a matter of dis- 
 cretion with the court. Ct. App., 1875, Wilbor 
 V. Danolds, 59 N. Y. (14 Sick.) 657. 
 
 MOTIONS. 
 See Practice. 
 
 MUNICIPAL COEPOEATIONS. 
 
 Aid to railroads, general laws amended, chaps. 283 
 and926, Laws of 1871. 
 
 1. In general, Courts of equity have no 
 general supervisory power over the government 
 of municipal corporations, or over the acts and 
 proceedings of their governing bodies. Sup. Ct., 
 1871, Phelps V. City of Watertown, 61 Barb. 121. 
 
 2. Such courts will not interfere on applica- 
 tion of a citizen to restrain the acts of the mu- 
 nicipal authority, where the complaint does not 
 show that the rights of such citizen have been 
 either injured or menaced in a matter falling 
 within any recognized head of equity jurisdic- 
 tion, lb. 
 
 3. Contracts by. Under a power conferred 
 by statute to cause the streets of a town to be 
 lighted with gas, and to contract with a gas com- 
 pany therefor, a board of town auditors cannot 
 make an absolute binding contract for a term of 
 years, not subject to be terminated by a repeal 
 of the act giving tlie power, or by the determi- 
 nation of a subsequent board to discontinue 
 lighting'any or all of the streets. Ct. App., 1874, 
 Richmond Gas Light Co. v. Town of Miadletown 
 59 N. Y. (14 Sick.) 228. 
 
 4. The proper remedy to enforce such a eon- 
 tract, if valid, would be by mandamus and not 
 by action. lb. 
 
 6. A contracting board of a municipal corpo- 
 ration, authorized by law to let a paving con- 
 tract to the lowest bidder offering to do the 
 work according to plans and specifications adopt- 
 ed by such board, must first adopt its plans and 
 specifications, and cannot, without so doing, 
 advertise for proposals for different kinds of 
 pavement and award the contract to the party 
 offering tliat kind, which, from considerations of 
 desirability, durability and price, they consider 
 upon the whole the lowest. Ct. App., 1870, 
 People ex. rel. Ream Pavement Co. v. Board of 
 Improvement, 43 N. Y. (4 Hand,) 227. 
 
 6. Under such a statute, it will make no dif- 
 ference, that the different kinds of pavements 
 are all patented and compete in no other way. 
 
 7. Where a contract was made by a city for 
 grading and paving a public street and furnish- 
 
MUNICIPAL CORPORATIONS. 
 
 483 
 
 ing materials therefor agreeably to a profile of 
 such street on file in a certain office, the con- 
 tractor agreeing to keep the work in repair for 
 one year ; and a few days after the completion 
 of the work, the ground over a marshy portion 
 of the road, clearly defined and located on such 
 profile, underwent an extraordinary settling of 
 twelve feet, necessitating- tlie entire repaving of 
 such portion, — Held, that the restoration of the 
 road was but a performance of the agreement to- 
 repair, and the contractor could not recover 
 extra compensation therefor, nor could he so 
 recover under any implied agreement based 
 upon an unsigned statement in some way an- 
 nexed to the paper upon which the profile was 
 exhibited, but not referred to in the contract in 
 any manner, purporting t» be " an estimate of 
 about the work to be done," such statement not 
 constituting a warranty nor any part of tlie con- 
 tract. Ct. App., 1871, Riley v. City of Brooklyn, 
 46 N. Y. (1 Sick.) 444 ; Rev'g S. C, 56 Barb. 659. 
 8. Where a railroad company is licensed by a 
 municipal corporation to use its streets for lay- 
 ing tracks, the terms on which such license is 
 granted become a contract between the parties, 
 and the liability of the company under it is not 
 affected by a reservation of power on the part 
 of the municipal corporation to revoke the 
 license for a failure to perform. Ct. App., 1872, 
 Mayor, etc., of the City of Troy v. Troy and Lans- 
 ingburgh R. R. Co., 49 N. Y. (i Sick.) 657. 
 . 9. Discontinuaiice of proceedings for 
 acquiring land. No title to land is acquired 
 under proceedings to condemn it for public use, 
 until the confirmation of the report of the com- 
 missioners appointed to assess the 'damages for 
 the taking; and the commissioners cannot 
 legally act after the municipal authorities have 
 passed a resolution staying such proceedings 
 until further action by themselves. In matter of 
 North Thirteenth St., 5 Hun, 175. 
 
 10. Estimate of moneys necessary to be 
 raised. Under a provision in a village charter 
 that the trustees shall prepare and present to 
 the electors at each annual election "an esti- 
 mate of the moneys necessary and proper to be 
 raised during the year then next ensuing to pay 
 the debts and expenses of the corporation," and 
 the meeting may thereupon direct the raising by 
 tax of a limited sum for those purposes, it is not 
 essential that such estimate be in detail showing 
 the sums necessary for each object of expendi- 
 ture, but an estimate of a gross amount for all 
 purposes is a substantial compliance with the 
 statute. Ct. App., 1863, Pumpelly v. Village of 
 Owego, 45 How. 219. 
 
 11. Ordinances. A municipal corporation 
 cannot establish fire limits and control the con- 
 struction of buildings as to materials, unless 
 authority therefor is expressly given or neces- 
 sarily implied from its charter. Sup. Ct., 1874, 
 City of Troy v. Winters, 2 Hun, 63. 
 
 12. Where such authority is expressly con- 
 ferred upon the common council, it cannot dele- 
 gate to a committee or third persons the trust or 
 duty imposed by law upon itself. lb. 
 
 13. A resolution passed by the trustees of a 
 village, whereby they " resolved and ordained" 
 that a person named be required to remove the 
 awning in front of his store within forty-eight 
 hours after service of a copy on him, " under 
 penalty of $25, hereby imposed on him for fail- 
 ure or neglect to comply with this ordinance," 
 is not an ordinance although called so ; and 
 under a charter requiring ordinances to be gen- 
 eral, not special, such an ordinance would be 
 wholly unauthorized, and could not be enforced. 
 
 Sup. Ct., 1872, Trustees of the Village of Canajo- 
 harie v. Buel, 43 How. 156. 
 
 14. Under a statute authorizing a city council 
 to " pass all such ordinances as they may deem 
 proper to preserve the harbors and water chan- 
 nels of said city ; to prevent and punish the 
 casting and depositing therein, or the causing to 
 be floated, drifted and deposited therein, of any 
 substance which, in their judgment may be 
 liable to obstruct the same ; to prevent and 
 remove all obstructions therein, and punish tlie 
 authors thereof ; " the council may by ordinance 
 prevent the depositing of any substance liable 
 to obstruct the harbors, either directly therein, 
 or in any of the affluents thereof within the 
 city ; and the validity ot an ordinance for that 
 purpose will depend upon the facts that the 
 waters in which such deposits are prohibited are 
 harbors, and that substances so deposited will 
 drift into and obstruct the harbors, and not 
 upon the statement thereof in the ordinance. 
 Sup. Ct., 1872, City of Ogdensburg v. Lyon, 7 
 Lans. 216. 
 
 15. Even though the obstruction of a harbor 
 may be a maritime tort, and within the exclusive 
 admiralty jurisdiction of the United States 
 courts, yet the State may confer upon munici- 
 palities police authority over liarbors within 
 their limits, and violations of police regulations 
 established by them would be within the juris- 
 diction of the State courts. lb. 
 
 16. A city ordinance prescribing the minimum 
 width of wagon tire for vehicles carrying loads 
 of specified unusual weights upon paved streets 
 of the city, and affixing a penalty for a violation 
 thereof, is authorized by a provison in the char- 
 ter giving the common council power to pass 
 ordinances requiring the streets to be kept free 
 from injury. Oneida Co. Ct., 1873, City of Utica 
 V. Blakeslee, 46 How. 165. 
 
 17. Where such ordinance, after fixing the 
 penalty, directs that the expense of weighing 
 be added thereto, the latter clause will be held 
 void. lb. 
 
 18. Fo'TC'ers. Reconsideration of vote. 
 A majority of the common council of a city 
 may dispense with the rule requiring a motion 
 for reconsideration of a vote to be made only by 
 one who voted with the majority, and if they 
 treat such a motion made by one who voted with 
 tlie minority as regular, that is a suspension of 
 tlie rule. Sup. Ct., 1871, People ex rel. Locke v. 
 Common Council of the City of Rochester, 5 Lans. 11. 
 
 19. They have power to reconsider a vote 
 negativing the passage of a resolution, on a 
 motion so made, and their action cannot be 
 questioned by a third party. lb. 
 
 20. Sale of property. All property of a 
 private nature belonging to a municipal corpo- 
 ration, upon which no specific trust is imposed, 
 may be sold by the corporation ; but it cannot 
 sell property of a puhlic nature, such as streets, 
 etc., so long as they are held for public use. As 
 to property conveyed to it in trust for a specific 
 purpose within its proper province, equity will 
 interfere to prevent a misappropriation of the 
 fund or a misuse of the property. Sup. Ct., 
 1875, People v. City of Albany, 4 Hun, 675. 
 
 21. A city to wliieh the legislature has granted 
 the exclusive right to establish and control fer- 
 ries therein, and which has established and for 
 a long time , maintained a ferry at a particular 
 point, and owns real estate in connection wi|h 
 such ferry, may, at its pleasure, sell and convey 
 such real estate, provided the public is not cut 
 off by the salo from the means of intercommu- 
 nication, lb. 
 
484 
 
 MUNICIPAL CORPORATIONS. 
 
 22. Subscription to stock of private 
 corporation. The legislature cannot authorize 
 a village to issue bonds in pjiyment for stock of 
 a private corporation, formed for the purpose of 
 improving a water privilege and manufacturing 
 lumber in sucli village. Sup. Ct., 1875, Weismer 
 r. Village of Douglas, 4 Hun, 201. 
 
 23. Bonds issued for such a purpose are void, 
 even in the hands of a bona fide holder, and the 
 village is not estopped from disputing their valid- 
 ity by having once paid interest thereon, or 
 voted on the stock issued to it. lb. 
 
 24. Streets. Village authorities, having 
 power over the streets and highways, may 
 rightfully cut trees and remove obstructions in 
 a dedicated street which has been accepted 
 through its whole extent, though the part where 
 such trees and obstructions are is unworked; 
 but they have no right to use or convert such 
 timber unless it is necessary for filling the street 
 for use by the public, the title thereto being in 
 the owners of the soil. Sup. Ct., 1871, Niagara 
 Falls Suspension Bridge Co. v. Bachman, 4 Lans. 
 623. 
 
 25. Village authorities may rightfully use 
 gravel from a dedicated street for tlie improve- 
 ment of other streets dedicated by the same 
 map. lb. 
 
 26. The streets of a municipal corporation may 
 be appropriated to other purposes than mere 
 passage. They may be used and appropriated 
 for the promotion of the health, trade, com- 
 merce and convenience of the public, or for any 
 public use which is consistent with their use as 
 public highways. Sup. Ct., 1874, Tompkins v. 
 Hodgkins, 2 Hun, 146. 
 
 2^. An ornamental statue may therefore be 
 erected by the public authorities in such street, 
 wlien it does not obstruct travel. lb. 
 
 28. A municipal corporation holding the fee 
 of streets in trust forthe use of the public as 
 sucb, has no power to divert any part of them 
 from an exclusive public to a private use. Thus, 
 it cannot autliorize the erection of a wooden 
 awning extending out from a building oyer the 
 side walk to supporting posts standing inside 
 the curbstone. N. Y. Sup. Ct., Sp. T., 1874, 
 Trenor v. Jackson, 46 How. 389 ; S. C, 15 Abb., 
 N. S., 115. 
 
 29. The common council of a city, authorized 
 by its charter to permit the use of its streets for 
 railroad tracks, has power to authorize the lay- 
 ing of a branch track across such streets to a 
 private elevator, for the purpose of carrying 
 goods to and from it in connection with the 
 main track and in aid of the general business of 
 the company as a common carrier. Ct. App., 
 1871, Clarke v. Blackmar, 47 N. Y. (2 Sick.) 150. 
 
 30. Where the city charter makes applicable 
 to appropriations of streets under such authority, 
 the provisions of the general railroad act relative 
 to compensation, it is not necessary that the re- 
 solution of the common council granting the 
 permission should also provide for compensa- 
 tion, lb. 
 
 31. The owner of land adjoining a public 
 street is at liberty, so long as he does not inter- 
 fere with the public use of the way, to use the 
 space under it as he may any other part of his 
 property ; and he is not bound to leave the earth 
 there as a protection against a possible overflow 
 of a sewer. Ct. App., 1871, M'Carthy v. City of 
 Syracuse, 46 N. Y. (1 Sick.) 194. 
 
 82. Appeal in proceedings for opening 
 streets. An appeal lies to the General Term of 
 the Supreme Court from the decision of the 
 Special Term in special proceedings, such as the 
 
 confirmation of the report of commissioners in 
 proceedings relative to opening streets in New 
 York city taken under ch. 565, Laws of 1865, 
 being expressly given by ch. 270, Laws of 1854. 
 Sup. Ct., 1875, In Matter of Kingsiridge Road, 4 
 Hun, 599. 
 
 33. The corporatioii seeking to acquire the 
 title to land, is, in a -legal sense, the adverse 
 party as to a person affected by-such decision, 
 and service of notice of appeal on the clerk of 
 the court and the corporation counsel is suffi- 
 cient, lb. 
 
 34. Liabilities. Obstructions to rivers. 
 A municipal corporation is not liable for dam- 
 ages resulting from obstructions, of which it had 
 no notice, placed in a navigable river within its 
 limits by a strange>r, as, by one to whom it had 
 rented the wharfage of piers in front of which 
 the obstructions were placed. Barrett, J., 
 dissents. N. Y. C. P., 1869, Seaman v. Mayor, 
 etc., of City of New York, 3 Daly, 147. 
 
 35. Tort of agent. A municipal corpora- 
 tion is liable for the tortious acts of its agent 
 when either expressly authorized or done in 
 ,good faith in pursuance of a general authority to 
 act for it on the subject to which they relate. 
 Ct. App., 1874, Buffalo and Hamburgh Turnpike. 
 Co. V. City of Buffalo, 58 N. Y. (13 Sick.) 639. 
 
 36. The acts of the common council or other 
 governing body of such a corporation are the 
 acts of tlie corporation, and for them it is liable, 
 lb. 
 
 37. Acts or omissions of officers. A 
 municipal corporation is not liable for the acts 
 or omissions qf duty of independent officers 
 whose duties -are specifically prescribed by law, 
 though appointed by them. Sup. Ct,, 1874; 
 Maximilian v. Mayor, etc, of New York, 2 Hun, 
 263 ; Aff'd. by Ct. App. 
 
 38. A municipal corporation is liable for a 
 misfeasance of its officers in respect to a duty 
 imposed absolutely upon the corporation as such ; 
 but not for the misfeasance of an officer in res- 
 pect to a duty specifically imposed by statute on 
 that officer. N. Y. Supr. Ct., 1874, Sam v. 
 Mayor, etc. of New York, 37 N. Y. Supr. (5 J. & 
 Sp.] 458. 
 
 39. Nor is it liable for the misfeasance of offi- 
 cers over whom it has no control, and whose 
 duties are to be performed as the representatives 
 and for the purposes of the State government. lb. 
 
 40. Although commissioners, having the con- 
 trol of water works belonging to a municipal cor- 
 poration, are appointed by the legislature, and 
 possess a quasi corporate character, yet, as the 
 authority given them is for the benefit of thfe 
 municipality, they are subordinate to it, and such 
 municipality is liable for injuries caused by the 
 negligence of their superintendent in leaving an 
 excavation in a street, made for the purpose of 
 repairing water pipes, unguarded during the 
 night. Sup. Ct., 1874, Deyoe v. Village of Sara- 
 toga Springs, 1 Hun, 341. 
 
 41. A municipal corporation, which, in the ex- 
 ercise of a lawful right, grants permission to a 
 lot owner to connect his drains with a sewer, is 
 liable for injuries caused by the omission of its 
 officers to exercise reasonable care to prevent 
 injury, but not for those caused by the negli- 
 gence of the servants of the owner employed to 
 do the work. Ct. App., 1874, Masterton v. Vil- 
 lage ofMt. Vernon, 58 N. Y. (13 Sick.) 391. 
 
 42. Damages from improvement. The 
 fact that the State is not subject to an action in 
 behalf of a citizen does not establish that no lia- 
 bility exists from the State to him ; and where, 
 in pursuance of legislative enactment, a munici- 
 
MUNICIPAL CORPORATIONS. 
 
 485 
 
 pal corporation assumes to pay all claims for 
 damage resulting from a proposed harbor im- 
 proTement, and save the State from all expense 
 therefor, such obligation may be enforced against 
 the corporation. Ct. App^, 1871, Coster v. Mayor 
 of Albany, 43 N. Y. (4 Hand,) 399. 
 
 43. — from sewers. An act by which private 
 property is directly injured or destroyed, is 
 wrongful, as well when done by a municipal cor- 
 poration as when done by an individual, unless 
 an excuse or justification be shown. Sup. Ct., 
 1876, BradtY. City of Albany, 5 Hun, 591. 
 
 44. Such a corporation is liable for an injury 
 to a private lot, caused by its constructing a 
 drain to and discharging its contents upon such 
 lot, unless it is shown to have been done by law- 
 ful authority. lb. 
 
 45. A municipal corporation which, in order 
 to carry off the water flowing in its streets, con- 
 structs gutters and curbs therein, terminating 
 opposite the lot of a private individual, by whioli 
 such water is conducted away from its former 
 natural course and discharged upon such lot, is 
 liable to the owner of the lot for all damages 
 occasioned thereby. Snp. Ct., 1876, Byrnes v. 
 City of Cohoes, 5 Hun, 602. 
 
 46. A municipal corporation is liable for dam- 
 ages resulting from the negligent or unskilful 
 construction of a sewer, although the act of con- 
 struction was ministerial in character, in conse- 
 quence of its performance having been determin- 
 ed on by the sovereign power of the corporation. 
 N. Y. C. P., 1869, Donahue v. Mayor, etc., of City 
 of New York, 3 Daly, 65. 
 
 47. Where the duty is imposed upon a city of 
 keeping sewers in repair, this involves the exer- 
 cise of a reasonable degreS of watchfulness in 
 ascertaining their condition from time to time 
 and preventing obstructions and dilapidation, and 
 where a defect is an ordinary result of the use of 
 the sewer, which ought to be anticipated and 
 could be guarded against by occasional exami- 
 nation and cleansing, actual notice to the author- 
 ities is not necessary, but the omission to make 
 the examinations and keep the sewers clear, is 
 of itself negligence, which will render the city 
 liable. Ct. App., 1871, McCarthy v. City of Syra- 
 cuse, 46 N. Y. (1 Sick.) 194. 
 
 48. — from defects or obstructions in 
 streets. Municipal corporations are liable for 
 injuries caused by defects in or obstructions to 
 their streets, only when those defects or obstruc- 
 tions are the results of their acts, or of some 
 neglect or omission of duty by them or flieir ser- 
 vants or agents, and the persons injured are free 
 from fault. Ct. App., 1875, Gorham v. Trustees 
 of Village of Cooperstown, 59 N. Y. (14 Sick.) 660. 
 
 49. It is the duty of a municipal corporation 
 to keep the streets under its control, including 
 the sidewalks, at all times in a safe condition, 
 and it is liable for an injury sustained by an indi- 
 vidual in consequence of its neglect of that duty. 
 Sup. Ct., 1875, Wilson v. City of Watertown, 8 
 Hun, 508. 
 
 50. That the dangerous condition of the street 
 resulted from acts of a railroad company in con- 
 structing its track in such street for which such 
 company was liable to the city, does not exone- 
 rate the latter from its liability to the person in- 
 jured, lb. 
 
 51. A municipal corporation is not liable for 
 injuries caused to individuals by obstructions in 
 a highway, not placed there by its own officials 
 or by authority of the city government, until 
 after actual notice of their existence, or until by 
 reason of the lapse of time it should have had 
 knowledge, and therefore actual notice may be 
 
 presumed ; nor is it liable for defects discover- 
 able only hy an exercise of more than ordinary 
 care and prudence and reasonable intelligence. 
 Ct. App., 1872, Hume v. Mayor, etc., of City of New 
 York, 47 N. Y. (2 Sick.) 639. 
 
 52. Tlie acceptance by a city of an amended 
 charter, providing that any street, alley or lane, 
 which shall have been open and publicly used 
 for a period of 6 years, shall become a public 
 way for all purposes, and giving the common 
 council the same power over such way as over 
 streets or alleys laid by themselves, constitutes 
 an alley, whicli has thus lain open without any 
 formal acceptance by the public authorities, 
 ipso facto,- a public highway and renders the 
 city liable for its repair. Ct. App., 1871, Bequa 
 V. City of Rochester, 45 N. Y. (6 Hand,) 129. 
 
 53. Having made an excavation in a street 
 opposite the opening of such alley, which renders 
 egress therefrom dangerous, the city are bound 
 to remedy the evil ; and, if bridged, either by 
 the city authorities or by a stranger, and the 
 bridge in the latter case allowed to remain for a 
 number of years, being thus practically adopted 
 by the city, it will be bound to keep the bridge 
 in repair. lb. 
 
 64. To render the city liable for injuries re- 
 ceived through a defect in the bridge, it is not 
 necessary that actual notice of the defect should 
 be brought home to it, even though such defect 
 were caused by the wilful act of iinother ; but 
 it is sufficient that time enough has elapsed to 
 render the defect notorious. lb. 
 
 55. — from defective walks. Where, by 
 the charter of a city, its common council are 
 clothed with all the powers of commissioners of 
 highways of towns, and it is specially made their 
 duty to repair the streets and walks of the city. 
 The city is hable to any one receiving injuries 
 in consequence of a walk being out of repair. 
 Diveny v. City of Elmira, 51 N. Y. (6 Sick.) 606 ; 
 S. P. Mosey V. City of Troy, 61 Barb. 580. 
 
 56. In order to render such a corporation 
 liable for an injury caused by ice extending 
 across a sidewalk, it is not necessary that actual 
 notice of the obstruction should be brought home 
 to it, but it is sufficient if the accumulation 
 of ice at that point has remained so long as 
 to make the obstruction public and notorious. lb. 
 
 57. A village charter, which gives its trustees 
 power to compel lot owners to make repairs to 
 adjoining sidewalks within a time named, an don 
 default, to cause the repairs to be made, and 
 the expense to be assessed upon and collected 
 from such owners ; and also makes them com- 
 missioners of highways, with the same powers 
 as such officers in towns as to the repair of 
 streets and sidewalks ; and directs them to 
 determine the sunk to be raised each year for 
 highways, and all other expenses in relation to 
 streets and highways, and forbids the applica- 
 tion of such moneys to any purposes not specified 
 in that title, sidewalks not being one of them, 
 but in a subsequent provision gives them power 
 to cause sidewalks to be repaired, and to deter- 
 mine what portion of the expense shall be paid 
 out of the highway fund, and what by persons 
 benefited, and provides for enforcing payment 
 by the latter ; does not authorize the trustees to 
 apply the highway moneys to the repair of side- 
 walks, without having first determined that part 
 of the expense should be paid from moneys 
 raised for highway purposes, in conformity to 
 the charter ; nor does it make the duty of 
 making and repairing sidewalks imperative 
 upon the trustees in the first instance. Sup. Ct., 
 1871, Haskell v. Village of Penn Yan, 5 Lans. 43. 
 
486 
 
 MUNICIPAL CORPORATIONS. 
 
 58. An ordinance requiring repairs to be 
 made, and notice to the lot owner to make them, 
 are admissions of the necessity of the work, and 
 on default of the owner to make the repairs 
 within the tipie required after notice, it becomes 
 the imperative duty of the trustees to make 
 them, and the village is liable for injuries 
 caused by their neglect to do so. lb. 
 
 59. The village is only liable for the neglect 
 of its officers to do what they are charged with 
 the knowledge of as necessary. lb. 
 
 60. It seems that the owner or occupant of the 
 lot to which the defective walk is adjacent is 
 liable to the person injured ; but so is the cor- 
 poration, provided notice of the defect is brought 
 home to it, or it has existed long enough to 
 justify the assumption of notice ; and in case of 
 recovery against the corporation, it may recover 
 of such owner or occupant the damages paid. lb. 
 
 61. The trustees of a .village incorporated 
 under the general act of 1847 on that subject (3 
 Edm. Stats. 789), have no power under that act 
 to appropriate moneys raised for highway pur- 
 poses to making or repairing sidewalks therein, 
 but moneys for sidewalks must be voted by the in- 
 habitants. Sup. Ct., 1872, Ellis v. Tillage of 
 LoioviUe, 7 Lans. 434. 
 
 62. A resolution passed by the inhabitants, 
 authorizing the building of a sidewalk, but not 
 specifying any sum to be raised, is void, being 
 prohibited by sec. 30 of the general law, and 
 does not make it the duty of the trustees to build 
 or repair such walk. lb. 
 
 63. But where the trustees of the village are 
 by law made commissioners of highways, and 
 the duty is imposed upon them of raising money 
 for highway purposes, they are bound to repair 
 a sidewalk as a part of the highway, and out of 
 the highway funds, if its condition is such as to 
 endanger the safety of travellers ; and the vil- 
 lage will be liable for injuries caused by their 
 neglect to do so. lb. 
 
 64. Under such circumstances the trustees 
 will be presumed to have raised moneys for high- 
 way purposes, and to be therefore in funds, so as 
 to make the village liable, and the onus of show- 
 ing that they were not is on the village. lb. 
 
 66. It is negligence on the part of a city, 
 whose common council has fixed the grade of a 
 sidewalk at a descent of three quarters of an 
 inch to the foot, to have the end where it joins 
 another sidewalk laid on a slope of six inches in 
 three and a half feet, which will render it liable 
 to a person who is injured while passing along 
 such walk, by slipping on such sudden descent 
 when slightly covered with snow. Sup. Ct., 
 1875, Clemencev. City,ofAubum, 4 Hun, S86. 
 
 66. Where a city charter gives the common 
 council power to make and repair crosswalks, and 
 the means with which to do it, they are bound 
 to keep such walks when made in repair, and 
 tlie city is liable for whatever damages indivi- 
 duals may sustain by reason of their neglect to 
 do so. Sup. Ct., 1871, nines v. City of Lockport, 
 41 How. 435 ; S. C, 60 Barb. 378 ; 5 Lans. 16 : 
 Aff'd 50 N. Y. (5 Sick.) 236. 
 
 67. Where the charter also gives such council 
 the same powers as commissioners of highways 
 in towns, it is their imperative duty to cause 
 such crosswalks to be repaired. lb. 
 
 68. In order to exempt itself from liability by 
 reason of want of funds, the council must prove 
 that fact, and its want of power to raise such 
 funds. lb. 
 
 69. Assessments. A local assessment for 
 street improvements is not a tax witliin the 
 meaning of sec. 13, art. 7, of the constitution, 
 
 which provides that " every law which imposes, 
 continues or revives a tax, shall distinctly state 
 the tax, and the object to which it shall be 
 applied, and it shall not be sufficient to refer to 
 any other law to fix such tax or object," but 
 authority to make an assessment conferred by a 
 statute which refers to another statute is suffi- 
 cient. Sup. Ct., Sp. T., 1872j In matter of petition 
 ofN. Ford, 6 Lans. 92. 
 
 70. A special authority to levy assessments 
 upon property must be strictly pursued, and 
 where the statute conferring such authority re- 
 quires notice to parties of a hearing of objec- 
 tions before confirming such assessments, the 
 giving of the notice is essential to the validity 
 of the assessments. lb. 
 
 71. A statutoryrequirement that a district of 
 assessment shall be laid out preliminarily, is a 
 restriction merely on the power of the council or 
 body authorized to order work to be done in 
 respect to such work. lb. 
 
 72. The fee of lands acquired by a cemetery 
 association, organized under the act of 1847, re- 
 mains in the association, notwithstanding sub- 
 divisions of it may have been conveyed to dif- 
 ferent persons for burial purposes, and an assess- 
 ment for local improvement is properly made 
 against the land as a whole, and to the associa- 
 tion as owner. Ct. App., 1871, Buffalo City 
 Cemetery v. City of Buffalo, 46 N. Y. (1 Sick.) 503. 
 
 73. The power of the legislature to apportion 
 the assessments for local improvements is as un- 
 limited as the power of taxation itself. Sup. 
 Ct., 1875, Sacketl street. In matter of, 4 Hun, 92. 
 
 74. It is not within the taxing power of the 
 legislature to compel one town, city or locality 
 to contribute to the payment of the debts of 
 another. It cannot, therefore, authorize a city 
 to assess lands of an adjoining town for debts 
 previously contracted in the purchase and crea- 
 tion of a public park, for which they were not 
 previously liable, on the ground of benefits re- 
 ceived. Ct. App., 1875, In Matter of Prospect 
 Park, 60 N. Y. (16 Sick.) 398 ; AfE'g S. C. svJ>. 
 nom., Brooklyn City v. Lott, 2 Hun, 628. 
 
 75. Under a city charter which provides, that 
 " the expense of all new work or improvements 
 and alterations, not in the nature of ordinary 
 repairs, shall be assessed and be a lien upon the 
 property benefited," the expense of bringing a 
 street to an established grade, by cutting and 
 filling to a considerable extent, cannot be levied 
 upon the city at large, but must be assessed 
 upon tlie property to be directly benefited 
 thereby, it being new work, and not ordinary 
 repairs. Sup. Ct, Sp. T., 1871, Brenn v. City of 
 Troy, 41 How. 475 ; S. C. 60 Barb. 417. 
 
 76. Vacating. An entire assessment for 
 grading, paving, curbing and guttering a street, 
 under a petition which did not specify paving, 
 although unlawful as to the cost of the paving, 
 will not be vacated on certiorari, unless it ap- 
 pears that the provisions of the statutes for the 
 reduction of unlawful assessments (oh. 483, 
 Laws 1871 ; ch. 338, Laws 1858), are insufficient 
 to correct the errors complained of. Sup. Ct., 
 1873, People exrel. Meeker v. City of Brooklyn, 14 
 Abb. N. S. 115. 
 
 77. An assessment for street Improvements 
 will not be held invalid, when called in question 
 collaterally, because of mere irregularities in the 
 proceedings, such as the disqualification of one 
 of the assessors or commissioners by not being 
 a freeholder, or the non-exaction of a bond from 
 the person to whom the contract was let. Sup. 
 Ct., Sp. T., 1868, Thurston v. City of Elmira, 10 
 Abb. N. S. 119. 
 
NATIONAL BANKS— NATURALIZATION. 
 
 487 
 
 78. Under the provisions of the charter of the 
 city of Lockport (ch. 365, Laws 1866, title 6, sec. 
 1), that tlie assessment for grading a street shall 
 be equally made upon the real estate deemed 
 benefited by the improvement, to be estimated 
 and determined by one of the city assessors, it is 
 no objection to such an assessment that it was 
 made and reported to the common council by 
 two of the assessors. Sup. Ct., Sp. T., 1871, In 
 Matter of Gardner, 41 How. 255. 
 
 79. Where the assessors, after examination of 
 the premises, decide that the benefit will be 
 equal to each lot on the street, and assess 
 them all the same amount per foot, the assess- 
 ment will be sustained, although but a small 
 portion of the grading is necessary opposite the 
 lots of the person objecting to the assessment on 
 that ground. lb. 
 
 80. An act authorizing an assessment for the 
 expense of a street improvement is in deroga- 
 tion of individual rights, and must be strictly 
 construed and rigorously observed. Any fail- 
 ure to comply with a material requirement of 
 such act will render a sale or lease founded 
 upon the assessment invalid to confer either 
 title or right to possession. Sup. Ct, 1871, 
 Hopkins v. Mason, 42 How. *15; S. C, 61 Barb. 
 469. 
 
 81. The proceedings of commissioners in mak- 
 ing an assessment, until properly adjudicated, 
 are open to investigation in an action in which 
 the title founded thereon is involved. lb. 
 
 82. Under an act authorizing the trustees- of a 
 village to appoint three commissioners to make 
 an assessment for street improvements, neither 
 of whom should be " owner of or interested in 
 property in the assessment district," a person 
 who is a member of a church and a pew-holder 
 in its church building situate in such assess- 
 ment district, is disqualified, and cannot law- 
 fully act as such commissioner, lb. 
 
 83. A failure of commissioners to comply 
 with a requirement of the law, that they shall 
 publish a notice " addressed to the owners of 
 land within the assessment district," by omit- 
 ting to address such notice to anybody, is a 
 jurisdictional defect ; so, also, is a non-compli- 
 ance with another requirement that they shall 
 publish " a notice designating a time and place 
 when and where they shall sit to hear objections, 
 and a time and place where the assessment 
 could be inspected," as, by publishing a notice 
 which does not fix any time for hearing, but 
 merely provides for receiving written objections, 
 and states that the assessment is filed in the vil- 
 lage clerk's office. A non-compliance with either 
 of those requirements renders the proceedings 
 void. lb. 
 
 84. If proceedings to lay an assessment are 
 absolutely void, an act of the legislature ratify- 
 ing and confirming, and declaring them valid, is 
 unconstitutional, and cannot confer title to a 
 purchaser under them. lb. 
 
 85. Where a statute regulating an assessment 
 for a street improvement directs the assessors to 
 certify the costs and expenses of the work to a 
 public officer, having nothing to do with lay- 
 ing the assessment, merely to enable him to act 
 intelligently in matters not connected with such 
 assessment, their failure to give such certificate 
 does not vitiate a sale under the assessment. 
 Sup. Ct., 1875, Sorchan v. City of Brooklyn, 8 
 Hun, 562. 
 
 86. The manner in which assessors, having 
 jurisdiction of the subject-matter, perform their 
 duty, cannot be reviewed collaterally, but by 
 appeal only. lb. 
 
 87. It is not an irregularity which will affect 
 the validity of an assessment, that it was made 
 at a meeting adjourned from that at which the 
 hearing was to be had by a minority of the com- 
 mon council, such adjournment being beyond 
 one day but to tlie day for the next regular 
 meeting. Sup. Ct., 1871, People ex ret. Butts v. 
 Common Council of the City of Rochester, 5 Lans. 
 142. 
 
 88. Neither does it make the proceedings void 
 that the notice for the hearing of appeals spe- 
 cified. only two hours for the hearing, if all who 
 appeared or desired a hearing were in fact 
 heard. lb. 
 
 89. Neither, where the assessment directed 
 was for the proper amount, will a mere clerical 
 error by which the amount is increased beyond 
 the estimated expense, vitiate the assessment, 
 lb. 
 
 90. Where an act authorizing improvements 
 to be made by a municipal corporation, requires 
 the benefits resulting therefrom to be assessed 
 exclusively upon real estate, and that the com- 
 missioners of appraisal make their determin- 
 ation in writing, giving a general description 
 of all lands and property assessed for ben- 
 efits with the names of the owners and the 
 amount assessed against each, a failure of such 
 commissioners to describe any land in their re- 
 port as that for a benefit to which a party is as- 
 sessed as owner, is fatal to the proceeding. Sup. 
 Ct., 1874, People ex rel. Kilmer v. McDonald, 2 
 Hun, 70. 
 
 91. Conclusiveness of commissioners' 
 decision. The court will not interfere with the 
 determination of commissioners of estimate and 
 assessment, merely on the ground that it ap- 
 pears to be larger that it should have been. 
 The determination of the commissioners on the 
 question of value is conclusive. Sup. Ct., 1875, 
 In matter of Kingsbridge Road, 5 Hun, 146. 
 
 92. Advertising for proposals. Where the 
 statute does not require any previous determin- 
 ation of the kind of pavement to be laid, there 
 can be no valid objection to advertising for 
 proposals for different kinds before determining 
 the particular kind, and then deciding that ques- 
 tion with reference to the relative cost, and giv- 
 ing the contract to the lowest bidder for the 
 kind adopted. Sup. Ct., Sp. T., 1872, In matter 
 of Petition ofN. Ford, 6 Lans. 92. 
 
 93. Property taxable. Where territory is 
 annexed to a municipal corporation after it has 
 incurred debts, persons and property within such 
 annexed territory are liable to taxation for the 
 payment of such existing debts as well as for 
 other purposes. Ct. App., 1863, Pumpelly v. Vil- 
 lage of Owego, 45 How. 219. 
 
 94. Presentation for payment of a claim 
 against a municipal corporation to its common 
 council, is a sufficient compliance with ch. 262, 
 Laws 1859 (4 Edm. Stats. 682), to entitle the 
 claimant to costs in an action thereon, especially 
 where the treasurer, whose duties might be re- 
 garded as making him as the chief fiscal officer, 
 has no authority to pay a creditor when his 
 claim is presented. Sup. Ct, 1875, Butler v. City 
 of Rochester, 4 Hun, 321. 
 
 NATIONAL BANKS. 
 See Banes & baneihs. 
 
488 
 
 NAVIGABLE STREAMS— NEGLIGENCE. 
 
 NATURALIZATION. 
 See Alien. 
 
 NAVIGABLE STREAMS. 
 
 1. What are. The terms " navigable 
 streams," as used in ch. 855, Laws 1869, except- 
 ing tliem from the power of county supervisors 
 to erect bridges, have reference to streams capa- 
 ble of use for navigation in some useful, sub- 
 stantial and practical way. It is doubtful wheth- 
 er Catskill Creek at a point where at low-water 
 the bed is nearly bare, is navigable, within the 
 meaning of that statute, although the tide ebbs 
 and flows there. Sup. Ct., Sp. T., 1870, People 
 V. Meach, U Abb. N. S. 429. 
 
 2. The Mohaw^k river is a navigable stream, 
 and the title to the waters and bed thereof is in 
 the people of the State. Sup. Ct., Sp. T., 1872, 
 Grill v. Citif of Rome, 47 How. 398. 
 
 3. The right of the people is not limited to 
 the use of the waters for purposes of navigation, 
 but they may lease them to individuals, or 
 divert them for artificial navigation, or for the 
 supply of city water works, and riparian owners 
 along the stream are not entitled to damages for 
 any such diversion. lb. 
 
 4. Restoration of bank. The public have a 
 right of way in every stream which is capable, 
 in its natural state, and in its ordinary volume 
 of water, of transporting in a condition fit for 
 market, the products of the forests or mines, or 
 of the tillage of the soil on its banks ; and if the 
 proper navigation of the river requires it, any 
 person interested in its use may, with the as- 
 sent of the riparian proprietor, erect a structure 
 to restore a bank which has been washed or in- 
 jured to its original state. Sup. Ct., 1875, Sla- 
 ter V. Fox, 5 Hun, 544. 
 
 5. State control. The several States have 
 the right to exercise jurisdiction over navigable 
 rivers within their limits, and may authorize the 
 erection of wharves, not extending below low- 
 water mark, and not materially obstructing nav- 
 igation so as to be nuisances, unless their action 
 is repugnant to the power of congress " to regu- 
 late commerce with foreign nations and among 
 states." Sup. Ct., 1873, Delaware ^ Hudson Canal 
 Co. V. Laiorence, 2 Hun, 163. AfE'd by Ct. App. 
 
 6. The soil tinder navigable rivers, within the 
 territory of a State, especially to the extent of 
 low water mark, is in the State. lb. 
 
 NECESSARIES. 
 See Husband & wife ; infant. 
 
 NE EXEAT. 
 
 1. Writ not abolished. The right to Issue 
 the writ of »c exeat in equitable cases still exists, 
 and has not been in any way abolished by the 
 Code. Sup. Ct., 1870, Beckwith v. Smith, 4 
 Lans. 182. < 
 
 2. A writ of ne exeat may properly be issued 
 in aid of an injunction to restrain an actor from 
 going to another State to perform in a theatre 
 there, in violation of a covenant to perform in 
 a particijar theatre here and not to perform 
 elsewhere during a specified time. N. Y. C. P., 
 Sp. T., 1871, Eayes v. WilHo, 11 Abb. N. S. 167. 
 
 NEGLIGENCE. 
 
 I. What is; and when a ground op 
 
 ACTION 488 
 
 II. Defenses 495 
 
 III. Evidence ; Pkactice 501 
 
 I. What is ; and when a ground of action. 
 
 1. In general. An individual is liable for an 
 injurj' which is the natural and probable conse- 
 quence of his own negligent or wrongful act, not- 
 withstanding other causes set in motion by that 
 act, but insufficient of themselves to produce 
 such injury, contributed towards it. Ct. App., 
 1874, Pollett V. Long, 56 N. Y. (11 Sick.) 200. 
 
 2. Accordingly, where, by reason of the neg- 
 ligent construction of defendant's dam, it broke 
 away, discharging a large quantity of water, 
 which tore out an intermediate dam, and with 
 the increased volume of water thus acquired, 
 broke plaintiff's dam, — Held, that the damages 
 to plaintiff in consequence of such break, were 
 not too remote. lb. 
 
 3. Not only must negligence be shown to sus- 
 tain an action therefor, but it must appear to 
 have caused, or at*least contributed to the in- 
 jury. Ct. App., 1872, Cochran v. Dinsmore, 49 
 N. Y. (4 Sick.) 249. 
 
 4. Absence of lights. The absence of a vis- 
 ible light or other means of warning at the rear 
 end of a train while being, backed through a 
 public street of a city at night is negligence, 
 which will render the company liable for an in- 
 jury to one crossing the street resulting there- 
 from. Ct. App., 1873, Maginnis v. New. York. Cent, 
 and Hud. R. R. R. Co., 52 N. Y. (7 Sick.) 215. 
 
 5. Brass plating on stairs. Proof that the 
 steps of the main stairway of a ferry boat were 
 covered with brass plating, corrugated except 
 over the edge of the steps, where it was smooth 
 and slippery, does not establish negligence in 
 the ferry company, rendering it liable to a 
 passenger for an injury caused by slipping down 
 such stairway, where the evidence also shows 
 that this mode of covering has been adopted by 
 the best boats, and that no accident of the kind 
 has previously occurred. Ct. App., 1874, Croch- 
 eron v. North -Shore, etc. Ferry Co., 56 N. Y. 
 (11 Sick.) 656. 
 
 6. Breach of contract. Where, upon the 
 failure of a railroad company to furnish suffi- 
 cient " centers " to a contractor for the construc- 
 tion of an arch culvert upon its road, according 
 to its contract with the latter, he requested an 
 employe of the company to take down one of 
 the centres which had already been used ; in 
 doing which an under-servant of the company 
 assisting the latter was accidentally killed by the 
 falling in of the arch, — Held, that the negligence 
 of tlie company in not fulfilling its contract 
 could not be considered the natural or proximate 
 cause of the. accident, and that the company was 
 not liable. Ct. App., 1874, Hofnagle v. New 
 York Cent. <^ H. Riv. R. R. Co., 55 N. Y. 
 (10 Sick.) 608. 
 
 7. Care not exercised. No greater degree 
 of care can be required of street railway com- 
 panies in the management of their cars and 
 horses in the street than is required of .the driver 
 or owner of any other vehicle ; and negligence 
 cannot be predicated upon their failure tp exer- 
 cise such caution as is required of railroad 
 companies propelling their cars by steam, or to 
 adopt unusual and untried methods of attaching 
 theihqr^esto the cars. Com. App., 1873, Unger-v, 
 Forty Second St. R. R. Co., 51 N. Y.(6 Sick.) 497. 
 
NEGLIGENCE. 
 
 489 
 
 8. A foot passenger and the driver of a car- 
 riage have equal rights in the street crossings, 
 and both are required to exercise care and 
 prudence, the one to avoid injury to himself 
 and the other to avoid injuring him. Com. 
 App., 1873, Brooks v. Schwerin, 54 N. Y. (9 Sick.) 
 343. 
 
 9. Where it appears that the driver of a team 
 could have stopped it in time or so have guided 
 it as to have avoided running against a foot- 
 man, that is sufficient to establish negligence on 
 his part. N. Y. Supr. Ct., 1873, Mi/ers v. Dixon, 
 46 How. 48 ; S. C, 35 N. Y. Supr. ( 3 J. & Sp.) 890. 
 
 10. A driver of a street car, who fails to see 
 a small child which has fallen on the track 
 25 feet in front of the car, although tliere is 
 nothing to obstruct the view and several persons 
 shout to call his attention to the fact, but runs 
 over and injures him, is guilty of negligence 
 which renders the railroad company liable. 
 Ct. Aop., 1874, Bardenburgh v. Brooklyn ciiu, etc. 
 R. R.'Co., 56 N. Y. (11 Sick.) 662. 
 
 11. A lady in attempting to cross a street was 
 intercepted by a truck, and when waiting for it 
 to pass was struck by a wagon of defendant's, 
 in charge of a boy, who was driving diagonally 
 across the street at a high rate of speed. She 
 heard the noise as he approached within a few 
 feet of her, raised her hands and called to him, 
 but he neither saw nor heard her, — Held, that 
 the facts justified a finding of negligence on the 
 part of the defendant and of no contributory 
 negligence on the part of plaintiff. Ct. App., 
 1874, Sheekan v. Edgar, 58 N. Y. (13 Sick.) 631. 
 
 12. One who occupies the upper part of a 
 building in carrying on a manufacturing busi- 
 ness, is bound to use the same amount of care, 
 caution, attention and discretion to prevent 
 injury to the goods of a tenant beneath him, as 
 an ordinarily prudent man would put forth 
 under similar circumstances, and the latter 
 tenant is bound to use similar diligence to guard 
 against injury ; and the failure of either to 
 exercise that degree of care, &c., is negligence. 
 N. Y. Supr. Ct., 1873, Stapenhorst v. American 
 Manuf. Co., 46 How. 510 ; S. C, 18 Abb. N. S. 
 855; 36" N. Y. Supr. (4 J. & Sp.) 392. 
 
 13. In order to make the owner of a steamer, 
 engaged in towing boats on a lake or river, 
 responsible for an injury to one of the boats 
 while being towed, there must be proof of 
 actual negligence, or want of ordinary care and 
 skill. Sup. Ct, 1869, Taft v. Carter, 59 Barb. 67. 
 
 14. He is not to be deemed guilty of negli- 
 gence for not adopting that one of two plans of 
 passing a dangerous bridge, as to the compara- 
 tive safety of which men differed in opinion, 
 which the jury deem the safest; it being at 
 most an error of judgment. lb. 
 
 15. Collision of vessels. Where three 
 vessels were close hauled and beating out a tack 
 on courses which carried them off shore about 
 two miles, the wind bearing on their port bows, 
 and the Jieadmost one then went about and 
 stood in shore on her starboard tack, and the 
 next one very soon after followed the first on 
 the inshore tack, but before she had gathered 
 headway on that tack was run into by the hind- 
 most vessel head on and struck abaft the main 
 rigging, causing lier to sink in three-quarters of 
 an hour, and it appeared that such colliding 
 vessel had no lookout on board, but had pre- 
 viously lowered her mainsail in order to take in 
 reef, and those on board were engaged in doing 
 so at the time of the collision, and no one on 
 board her saw the other Vessel when she tacked 
 or when she was in stays, or noticed her at all 
 
 after her tacking until it was too late to avoid 
 the collision, — Held, that such collision was 
 caused by gross carelessness in the management 
 of the colliding vessel. U. S. Sup. Ct., 1871, 
 Thorp V. Hammond, 42 How. 814. 
 
 16. It was the duty of the master of that 
 vessel, knowing that there were two others in 
 close proximity to his own, and also knowing 
 that they were beating out their tacks, and 
 would probably soon come about and put in 
 shore, to keep watch of their movements, and 
 notice the change of course of the second vessel 
 in season to port his lielm, and thus pass under 
 such vessel's stern. 
 
 17. The fact that his hands were engaged in 
 reefing did not relieve such master from obliga- 
 tion to take the most common precaution against 
 inflicting injury upon a neighboring vessel ahead, 
 especially when the movements of that vessel 
 were precisely what ought to have been antici- 
 pated, lb. 
 
 18. A custom' of the sea not to have a lookout 
 in the daytime or while reefing, if proved, is not a 
 reasonable one, sufficient to justify the absence 
 of a lookout in such a case as this. lb. 
 
 19. Conceding that when two vessels were 
 approaching each other, the one crippled, and 
 the other in good manageable condition, it is the 
 duty of the latter, if possible, to give way to the 
 former ; a vessel running freely with foresail and 
 jib set, is not crippled merely because her main- 
 sail is down and being reefed. lb. 
 
 20. Evidence that tlie officers and pilots of a 
 steamboat in plain sight and knowing the situa- 
 tion of a grounded vessel, instead of following 
 the usual channel, which would have enabled 
 them to pass in safety, directed their vessel in 
 another course under the impression that a new 
 channel had been formed there, but without any 
 examination, when coming in contact with some 
 obstacle which sheered her bow around toward 
 the other boat and rendered her unmanageable, 
 they ran into and sank the' grounded vessel, — 
 Held, sufficient to sustain an action for negli- 
 gence. Ct. App., 1870, Austin v. N. J. Steam- 
 boat Co., 43 N. Y. (4 HandJ 75. 
 
 21. In an action for a collision with plaintiifE's 
 vessel while in tow, caused by the negligence of 
 those in charge of the defendant's boat, it is, no 
 defense, that the tug having plaintiff's boat in 
 tow, even if the plaintiff be responsible for the 
 negligence of its officers, did not exhibit the 
 signals prescribed by act of Congress for vessels 
 of that class, where it appears that she carried 
 the lights customarily used by such vessels. 
 Ct. App., 1872, Hoffman v. Union Ferry Co. of 
 Brooklyn, 47 N. Y. (2 Sick.) 176. 
 
 22. In the absence of special circumstances 
 rendering it dangerous, a sailing vessel navigat- 
 ing a river has a right to take advantage of a 
 favorable tide as well as of a wind, and to drift 
 with sail set to catch any breeze that may spring 
 up ; and a steamer, which takes no measures 
 to avoid a collision with such a vessel, is guilty 
 of negligence, for which an action will lie. Ct. 
 App., 1871, Parrot v. Knickerbocker %■ N. Y. Ice 
 Co., 46 N. Y. { 1 Sick.) 361 ; Rev'g S. C, 2 
 Sweeny, 93. 
 
 23. Common switch. A railroad company 
 is under no obligation to its employes to pro- 
 vide its track with target switches, when a com- 
 mon switch is adequate and sufficient, and it is 
 not guilty of negligence in not doing so. Sup. 
 Ct., 1874, Salters v. Prest., etc. of the Del. ^ Hud. 
 Canal Co., 3 Hun, 838. 
 
 24. Crossing highvray at great speed. 
 The protection of the public demands that the 
 
490 
 
 NEGLIGENCE. 
 
 courts should compel railroad companies to ap- 
 proach highway crossings at such a rate of speed 
 as will enable persons approaching such cross- 
 ings to avoid danger, after the signal announc- 
 ing the approach of the train is heard, and be- 
 fore the train readies the crossing. It is negli- 
 gence to move a train at a higher rate of speed 
 in such a place. Sup. Ct., 1873, Robinson v. N. 
 Y. Cent. (5- Hud. Riv. R. R. Co., 65 Barb. 146. 
 
 25. Tli,e law places no restrictions upon rail- 
 road companies as to the rate of speed at which 
 their trains may be run at highway crossings, or 
 elsewhere -outside of a municipality ; nor will 
 they be liable for damages resulting from a 
 high rate of speed, if the signals required by law 
 are observed. Com. App., 1871, Warner v. New 
 York Central R. R. Co., 44 N. Y. (5 Hand,) 465 ; 
 Eev'g S. C, 45 Barb. 299. 
 
 26. Dangerous crossing. Where, by rea- 
 son of the depth of a cut at a highway crossing, 
 the situation of the ground, and erections made 
 by the railroad company, the view of travellers 
 upon the highway is obstructed so that approach- 
 ing trains cannot be seen until within a few 
 feet of the track, and the ordinary signals by 
 bell and whistle fail to give any notice because 
 not to be heard, the failure of the company to 
 provide some more efficient means of notice is 
 negligence, which will render it liable for injuries 
 resulting therefrom. Ct. App., 1871, Richardson 
 V. New York Central R. K Co., 45 N. Y. (6 Hand,) 
 846. 
 
 27. — excavation. A contractor for repairing 
 a sewer is guilty of negligence in leaving an ex- 
 cavation, at a street crossing, open, and without 
 any barrier or light to warn persons passing at 
 night of the danger ; and is liable therefor to 
 one who sustains injuries by reason tliereof 
 without contributory negligence on her own 
 part. N. Y. C. P, 1871, Bateman v. Ruth, 3 Daly, 
 378. 
 
 28. Where a contractor with a municipal cor- 
 pora tion was bound by- his contract to make and 
 refill an excavation in a publitf street, — Held, 
 that it was not enough that he left the street in 
 a safe condition for the time, bat it was his duty 
 to anticipate and provide for the natural effect 
 of rains upon earth excavated and replaced, and 
 to use such measure of prudent forethought in 
 view thereof as to prevent damage to the travel- 
 ling public, and for a breach of such duty he 
 would be liable in damages. Ct. App., 1872, 
 Johnson v. Friel, 50 N. Y. (5 Sick.) 679. 
 
 29. — machine unguarded. It is negligence 
 on the part of the owner of a dangerous machine, 
 to leave it in motion, unguarded, on his own 
 premises near a highway, where children play- 
 ing near might naturally be attracted to it by 
 curiosity, and be injured by it. Brooklyn City 
 Ct, 1874, Mullaney v. Spence, 15 Abb. N. S. 319. 
 
 30. — premises. The owner of leased premises 
 which were in a dangerous condition when leas- 
 ed, is liable for inj uries resulting to a third per- 
 son by reason of his failure to put them in prop- 
 er repair. Sup. Ct., 1875, Whalen v. Gloucester, 
 4 Hun, 24. 
 
 31. A cover to a hole in a sidewalk becomes 
 a part of the highway, and must be as secure as 
 the walk itself, and if the owner of the premises 
 where such hole is leaves it in a dangerous con- 
 dition, he is liable for injuries caused thereby, 
 whether he knew it to be dangerous or not, irre- 
 spective of any permission he may have received 
 from public authorities to do the work from 
 which the injury arises. lb. 
 
 82. The lessee of a warehoase and wharf on 
 navigable waters, who, for his own benefit, in- 
 
 duces other persons to come there, is bound to 
 keep the premises occupied by him and the ap- 
 proaches thereto in suitable order for the busi- 
 ness carried on there, and he is liable to any one 
 receiving injury in consequence of his failure 
 to do so, provided the defect could be discovered 
 by a reasonable examination. Sup. Ct., 1875, 
 Leary v. Woodruff, 4 Hun, 99. 
 
 33. Defective bridge. A contractor for 
 keeping a section of canal in repair, under a con- 
 tract made subsequent to ch. 836, Laws, 1866, 
 containing the clause required by sec. 9, of that 
 act, obligating the contractor to pay all damages 
 to the State or to any individual by reason of 
 negligence, default, &c., is liable to an individual 
 for injuries received by reason of the defective 
 condition of a bridge, notwithstanding he had 
 made such repairs as were directed by a super- 
 intendent appointed by the Canal Board. Sup. 
 Ct., 1871, French v. Z)onaWson, 5 Lans. 293 ; Aff'd, 
 S. C, 67 N. Y. (12 Sick.) 496. S. P. Conray v. Gale, 
 5 Lans. 344. 
 
 34. It is gross negligence on the part of a rail- 
 road companj'^ to permit a hole in the floor of its 
 depot, where its passengers are accustomed to 
 alight from its cars, to remain unrepaired, thus 
 rendering their landing unsafe. Sup. Ct., 1872, 
 Liscomb v. New Jersey R. R. ^ Trans. Co., 6 
 Lans. 75. 
 
 35. — pier. Neither the owner of a pier, nor 
 his lessee wlio has sub-let to another who is in 
 actual possession, are liable for an injury to the 
 property of a person lawfully upon such pier, re- 
 sulting from a neglect to keep it in repair, if the 
 same was in repair when demised by them re- 
 spectively, unless in leasing they expressly agreed 
 to repair, or renewed the lease after tlie need of 
 repair had shown itself. Ct. App., 1874, Clancy 
 V. Byrne, 56 N. Y. (11 Sick.) 129; Kev'g S. C'., 
 65 Barb. 344. 
 
 36. There is an implied license to vessels upon 
 navigable waters to enter and occupy a pier built 
 into or lying adjacent to such waters, in the man- 
 ner and for the purposes contemplated by its 
 erection, and also a license to all persons to oc- 
 cupy it for lawful and accustomed purposes j and 
 so long as it is kept open, the occupant or owner 
 is bound to keep it in a safe condition, so that 
 those having a lawful right can go upon it with- . 
 out incurring risk of injury, and is liable to them 
 for any injury received in consequence of his ne- 
 glect to do so. Ct. App., 1874, Swords v. Edgar, 
 59 N. Y. (14 Sick.) 28 ; Aff'g S. C, 44 How. 139. 
 
 37. A laborer employed in unloading a vessel 
 upon such a pier has a right to assume, as against 
 those bound to maintain it in good condition, 
 that it is in a fair and ordinary state of security 
 and strength, and able to sustain all the weights 
 of which such a structure is usually capable ; and 
 he is not chargeable with notice of its unsafe 
 condition communicated to the employer or fore- 
 man, so as to make his presence there contribu- 
 tory negligence in case of injury. lb. 
 
 38. The occupants of the pier are primarily 
 liable for an injury caused by the insecurity 
 thereof, but if it was in such condition when 
 leased to tliem, the owner receiving rents there- 
 from is liable for such injury. lb. 
 
 89. — rail. A railroad company having the 
 right to lay tracks in a public street, is bound to 
 lay them in a proper manner, and to keep them 
 in repair ; and if any injury occurs by reason of 
 its neglect in either respect, the company is 
 liable. Sup. Ct., 1873, Rockwell v. Third Avenue 
 R. R. Co., 64 Barb. 438. 
 
 40. If the defect is visible, notice of it to the 
 company is not necessary to render it liable ; but 
 
NEGLIGENCE. 
 
 "491 
 
 the omission to know of it is, prima facie, negli- 
 gence, as much as an omission to repair after no- 
 tice, lb. 
 
 41. Notice is also unnecessary, where the ofll- 
 cers of the company are in the habit of allowing 
 defective rails, such as produced the injury, to 
 remain after they know of their condition. lb. 
 
 42. — scaffold. The owner of a building wlio 
 agrees with a contractor for the construction of 
 a cornice thereon, to furnish the necessary scaf- 
 folding, is bound to use proper diligence in the 
 construction and maintenance of the same, and 
 for a failure in that respect is liable to workmen 
 employed by such contractor for injuries receiv- 
 ed in consequence of his negligence. Ct. App., 
 1874, Caughtry v. Globe Woollen Co., 56 N. Y (11 
 Sick.) 124. 
 
 43. — sewer. A city which assumes the con- 
 trol of a sewer built partly by itself and partly 
 by land-owners, and connects witli it another 
 sewer built by the city, and which entertains a 
 petition for a change of the connection between 
 them, and by its commissioner, wliose duty it is 
 to look after and inspect sewers, authorizes the 
 change to be made, and subsequently pays for 
 the work, is chargeable with notice of the man- 
 ner in which the change is made ; and if tlie ca- 
 pacity of the sewer is thereby diminished, or tlie 
 outlet obstructed by such cliange, the city is 
 liable to tlie owner of premises injured by an 
 overflow of water caused by the obstruction 
 and the consequent bursting of the sewers. Ct. 
 App., 1875, Nims v. Mayor, etc. of Troy, 59 N. Y. 
 (14 Sick.) 500. 
 
 44. Where a municipal corporation in con- 
 structing a sewer which intersects a natural 
 stream of water, neglects to provide egress for 
 the stream when tliat is practicable, by reason of 
 which the land of adjoining proprietors is flooded 
 and damages ensue, the corporation is liable 
 therefor. N. Y. C. P., 1869, Donahue v. Mayor, 
 etc. of New York, 3 Daly, 65. 
 
 45. — sidewalk. The owner of premises in 
 an incorporated village along which a sidewalk 
 has been constructed, is not liable to a person 
 injured in consequence of such sidewalk being 
 out of repair, unless the duty of keeping it in re- 
 pair has been imposed upon him by some statute 
 or contract. Sup. Ct., 1875, Village of Fulton v. 
 Tucker, 3 Hun, 529. 
 
 46. Sidewalks are part of the highway, and 
 the village is primarily liable for damages caused 
 by their defective condition, and it cannot com- 
 pel reimbursement by the owner of adjoining 
 premises, merely on the ground that he is au- 
 thorized by law to make repairs and save an as- 
 sessment on his premises. lb. 
 
 47. Duty omitted. In an action for negli- 
 gence consisting of a mere omission of duty, 
 where no misfeasance or affirmative fault or 
 wrong was committed by, or is imputed to, the 
 defendant, it is essential to establish that he 
 owed some clear, specific, legal duty to the party 
 injured which was violated by him. Sup. Ct., 
 1870, O'Brien v. Capwell, 59 Barb. 497. 
 
 48. A person who, having for a reasonable 
 compensation, engaged to search for taxes and 
 assessments against certain real property, pre- 
 sents to his employer his own certificate respect- 
 ing taxes, and that of another as to assessments, 
 relying upon which siich employer purchases the 
 property, and is objiged afterward to pay an as- 
 sessment not disclosed by such certificates, — is 
 guilty of negligence, for which an action will he, 
 whether his act be construed as an entire breach 
 of his contract to search fop assessments, or he 
 meant his employer should accept the certificate 
 
 of the other as his own performance. Com. App., 
 1871, Morange v. Mix, 44 N. Y. (5 Hand,) 815. 
 
 49. In an action against a street railroad com- 
 pany to recover for injuries received by a female 
 passenger, one of the steel lioops of whose skirt 
 cauglit on a nail projecting from the platform 
 when she was alighting with a child in her arms, 
 and she was thrown down and dragged along by 
 the car on its starting ; — Held, that the wearing 
 of a hoop skirt was not contributory negligence, 
 but if. such skirts were worn by such passengers 
 as the railroad company were in the liabif of 
 conveying, they were bound to provide for tlie 
 safety of passengers wearing tiiem, and with as 
 much care and caution as cautious and pru- 
 dent persons would be bound to exercise. N. Y. 
 Supr. Ct., 1872, Poulin v. Broadway and Seventh 
 Ave. R. R. Co., 34 N. Y. Supr. (2 J. & Sp.) 296. 
 
 50. The owner of a sawmill, employed in saw- 
 ing logs for otliers, owes the duty to liis custom- 
 ers that such mill and its appliances shall be 
 reasonably safe for tliose having a right or li- 
 cense to come into it for business purposes, and 
 is liable to them for any damages sustained by 
 reason of his neglect of that duty. Ct. App., 
 1874, Achen v. Lansing, 59 N. Y. (14 Sick.) 646 ; 
 S. C, 48 How. 374. 
 
 51. Property retained by the owner on board 
 a ferry boat is not at the sole risk either of 
 sucli owner or the ferryman. Each is charged 
 with duties in respect to it, and bound to use 
 ordinary care and diligence to prevent injury. 
 The ferryman is responsible for any defects and 
 insufficiencies in the boat, and other appliances 
 for the performance of tlie service undertaken 
 by hini, and for tlie neglect or want of skill of 
 himself and his servants. Ct. App., 1873, Wijc- 
 koffy. Queen's County Ferri) Co., 52 N. Y. (7 Sick.) 
 32. 
 
 52. — to servants. It is the duty of a 
 railroad company to exercise due, that is, ordi- 
 nary care in the selection and employment of 
 its servants and agents, having respect to their 
 particular duties and responsibilities, and the 
 consequence that may result from the want of 
 competence, skill or care in the performance of 
 their duties ; and wlien it has done so, and with- 
 out its fault, one is employed through whose in- 
 competency damage occurs to a fellow-servant, 
 the company is not liable. Ct. App., 1874, Bau- 
 lec V. New York and Harlem R. R. Co., 48 How. 
 399 ; S. C, 59 N. Y. (14 Sick.) 456. 
 
 53. It is not necessary that a railroad com- 
 pany should discharge intelUgent men of good 
 habits, who are employed by it as engineers, 
 brakemen or switchmen, for the first error or 
 act of negligence wliich they commit, in order to 
 relieve itself from liability for an injury subse- 
 quently caused by their negligence to otlier ser- 
 vants. Sup. Ct., 1872, Baulec v. New York and 
 Harlem R. R. Co., 12 Abb. N. S. 310 ; S. C, 62 
 Barb. 623 ; 5 Lans. 436 ; Ag'd, S. C, 48 How. 399. 
 
 54. Injury to servant. A railroad employe 
 cannot recover for injuries resulting from the 
 unskilfulness of his fellow-servants, if he lias 
 the same knowledge, or means of knowledge, of 
 the unskilfulness as the employer has. Sup. 
 Ct., 1873, Haskin v. N. Y. Cent. #■ Hud. Riv. 
 R. R. Co., 65 Barb. 129. 
 
 55. A railroad company cannot be held guilty 
 of negligence in employing a person as con- 
 ductor on the train by which the injury was 
 done to the plaintiff's intestate, merely because 
 they raised him to that position from that of 
 car-coupler and shover, when it appears that he 
 had occupied the inferior position for seven 
 years, long enough to have acquired a knowledge 
 
492 
 
 NEGLISENCE. 
 
 of the duties to be performed by him as con- 
 ductor, lb. 
 
 56. Neither can it be held guilty of negligence 
 in omitting to provide regulations for the move- 
 ment of trains, when being made up at depots, 
 or taking proper precautions for the protection 
 of life and limb from injury by such trains and 
 engines, so as to render it liable for an injury to 
 one of its employes, who entered its employ 
 with full knowledge that no such provisions had 
 been made. lb. 
 
 57. A railroad company is not liable in dam- 
 ages for the death of a fireman in its employ, 
 caused by the misplacing of a switch, where 
 the fixing of the switch in the way it was placed 
 is not traced to the defendant, or either of its 
 employes. Sup. Ct., 1872, Tinney v. Boston Sf 
 Albany R. R. Co., 62 Barb. 218 ; Aff'd, S. C, 52 
 N. Y. (7 Sick.) 632. 
 
 58. It cannot be charged with negligence 
 merely because it had another man acting as 
 switchman in place of its regular switchman, 
 where it does not appear that the accident was 
 caused solely by reason of the carelessness or 
 incompetency of such acting switchman. lb. 
 
 69. Where the owners of a cotton mill en- 
 trusted the entire management thereof to a 
 general agent, and through his neglect to repair 
 an elevator in the mill, of the insecurity of 
 which he had notice, an employe lawfully using 
 it was injured ; — Held, that such owners were 
 liable for the negUgence of such agent, he not 
 being a mere fellow-servant of the person in- 
 jured, but occupying the place of the master. 
 Ct. App., 1874, Corcoran v. Holbrooh, 59 N. Y. 
 (14 Sick.) 517. 
 
 60. An employer should not be held liable for 
 an injury sustained by an employe, in a place 
 of known danger, to which he unnecessarily, 
 and without command, exposed himself, and to 
 which no duty or obligation within the scope of 
 his employment called him ; even though the 
 negligence of other employes concurred in pro- 
 ducing the injury. N. Y. Supr. Ct., 1874, Sam- 
 mon V. New York %■ Hud. Riv. R. R. Co., 38 N. 
 Y. Supr. (6J. &Sp.) 414. 
 
 61. Escape of steam. A person waiting to 
 cross a railroad track at a street crossing, where 
 an engine is standing partly in the street, when 
 beckoned to cross by a fiagman stationed there, 
 has a right to suppose that no change will take 
 place in anything under the control of the rail- 
 road company to increase the danger, and a 
 sudden increase in the escape of steam from the 
 locomotive, made while he is crossing, such as 
 to frighten his horse, is negligence on the part 
 of the company which makes it liable for the 
 injuries resulting therefrom. Sup. Ct., 1875, 
 Borst V. Lake Shore ^ M. S. R. R. Co., i Hun, 346. 
 
 62. It seems, that it is negUgence on the part 
 of a railroad company to stop an engine on the 
 track where it crosses a public highway in such 
 a ;nanner as partially to block up the highway. 
 lb. 
 
 63. Excess of steam. The act of Congress 
 of Feb. 28, 1871, prohibiting steam vessels from 
 carrying steam beyond the limit in the inspec- 
 tor's certificate, was intended to provide for the 
 better security of life, and is in aid of the com- 
 mon law. To carry steam beyond that limit is 
 negligence per se. Brooklyn City Ct., 1872, 
 Landers v. Staten Island R. R. Co., 13 Abb, N. S. 
 338. 
 
 64. Explosiou. A person who places a 
 steam boiler upon his own premises and operates 
 the same with care and skill, so that it is not a 
 nuisance, is not liable for damages to his neigh- 
 
 bor caused by an explosion of such boiler, with 
 out fault or negligence on the part of the owner. 
 Com. App., 1873, Losee v. Buchanan, 51 N. Y. (6 
 Sick.) 476 ; Rev'g S. C, 61 Barb. 86. S. P., Losee 
 V. Saratoga Paper Co., 42 How. 385. 
 
 65. Where such explosion is caused by a 
 defect in the manufacture of the boiler, he is 
 not liable unless the defect was known to him 
 or was discoverable upon examination, or by the 
 application of known tests. lb. 
 
 66. The owner of a dwelling would be liable 
 to a tenant for injuries caused by the explosion 
 of a kitchen boiler put in by him for the use of 
 his tenants, if not made of suitable materials or 
 properly constructed, even though the lease 
 contained ho covenant as to the condition or the 
 repair of the fixtures. Otherwise, if the boiler 
 was constructed with due care and skill and of 
 suitable materials. Brooklyn City Ct., Sp. T., 
 1872, Joffe V. Harteau, 14 Abb. N. S. 263 ; Aff'd, 
 S. C, 56 N. Y. (11 Sick.) 398. 
 
 67. A manufacturer of boilers, who constructs 
 for another to his satisfaction, and delivers to 
 him, a boiler which is accepted and thencefor- 
 ward used and controlled by the latter, is not 
 liable to a third person for damages suffered by 
 him in consequence of an explosion, although 
 such explosion is the result of defective con- 
 struction. Com. App., 1873, Losee v. Clvte, 51 N. 
 Y. (6 Sick.) 494. 
 
 68. Falling building. The owner of a build- 
 ing adjoining a street or highway is under legal 
 obligation to take reasonable care that it shall 
 not fall into the street and injure persons law- 
 fully there, and is liable for an injury caused by 
 his want of such care, which may be presumed 
 from the accident itself. Com. App., 1874, Mul- 
 len V. St. John, 57 N. Y. (12 Sick.) 567. 
 
 69. Such owner is liable to a party who sus- 
 tains damages by the falling of the wall of such 
 building upon him while lawfully using the 
 street, even though such fall was caused by a 
 storm of unusual violence. Sup. Ct., 1875, Vincett 
 v, Cook, 4 Hun, 318. 
 
 70. Fast driving. In an action for injuries 
 received in being knocked down and run over 
 by defendant's vehicle, proof that defendant was 
 driving in a public street at the rate of a mile in 
 three minutes and ten seconds is amply sufiicient 
 to charge him with the consequences that follow 
 from such driving. Sup. Ct., 1871, Moody v. 
 Osgood, 66 Barb. 644; Aff'd, S> C, 54 N. Y. (9 
 Sick.) 488. 
 
 71. Fire, escape of. The failure of a rail- 
 road company to adopt any invention, known, 
 and in practical use, to prevent the escape of 
 sparks from its locomotives, is negligence, which 
 will render it liable for a loss arising therefroiji ; 
 but it is not liable, as for negligence, for a fail- 
 ure to use every possible prevention which the 
 highest scientific skill might have suggested, or 
 to adopt an untried machine or mode of con- 
 struction. Ct. App., 1870, Steinwig v. Erie Ry. Co., 
 43 N. Y. (4 Hand,) 123. 
 
 72. In an action for the burning of the plain- 
 tiff's house by the negligent use of a steam 
 engine, evidence that a spark arrester which 
 had previously been used on the engine had been 
 left off a short time before the accident, and that 
 when so used no damage had ensued, but that 
 while off, large sparks were emitted and carried 
 to a great distance, is sufficient to sustain a ver- 
 dict for negligence, notwithstanding the use of 
 spark arresters on that kind of engines was not 
 common. Com. App., 1871, Bedell v. Long Is- 
 land R.. R. Co., 44 N. Y. (5 Hand,) 367. 
 
 73. The mere fact that property in the vicinity 
 
NEGLIGENCE. 
 
 493 
 
 of a railroad is set on fire by sparks from a pass- 
 ing locomotive and consumed, does not estab- 
 lish negligence on tlie part of the railroad com- 
 pany. Sup. Ct, 1875, Collins v. N. Y. Cent. ^ 
 Mud. Riv. R. R. Co., 6 Hun, 503. 
 
 74. If the sparks escaped from the smoke stack, 
 and that was in perfect order, and in as good 
 condition to prevent the escape of sparks as 
 could be made, or as were made and in use, the 
 company could not be held guilty of negligence. 
 lb. 
 
 75. Fireman in charge of locomoti'V'e. 
 The fact that the person in charge of a locomo- 
 tive at the time of the collision causing the 
 injury sued for, was the fireman and not a 
 skilled engineer, does not establish negligence on 
 the part of the railroad company, where it 
 appears that he had perfect control of it and 
 stopped it in passing over the space of six feet, 
 on being advised that there was danger. Ct. 
 App., 1876, Culhane v. N. Y. Cent. ^ Hud. Riv. 
 R R. Co., 60 N. Y. (15 Sick.) 133. 
 
 76. Flagman, absence of. A railroad com- 
 pany is not called upon to keep a flagman at a 
 street-crossing to warn people of approaching 
 trains, but is only bound to operate its trains 
 with the care and caution called for by the 
 peculiar circumstances of the case. lb. 
 
 77. — inefBciency of. Although it is not 
 negligent for a railroad company to omit to keep 
 a flagman, yet if one is employed at a particular 
 crossing, his neglect to perform the usual and 
 ordinary functions of the place may be sufiieient 
 to charge the company. If a traveller approach- 
 ing such crossing does not hear the bell of a 
 coming train and there is a neglect to give 
 any warning by the flagman, and such neglect 
 solely produces the injury, it is sufiieient. Ct. 
 App., 1874, Kissenger v. New York and Harlem 
 R. R. Co., 56 N. Y. (11 Sick.) 538. 
 
 78. Hurrying up the horses attached to a 
 street car while a passenger is getting on, and 
 before he is fairly on, is evidence of negligence 
 on the part of the driver, which should go to the 
 jury. N. Y. Supr. Ct, 1875, Maker v. Central 
 Park, N.i- E.R. R. Co., 39 N. Y. Supr. (7 J. 
 & Sp.) 155. 
 
 79. Improper constnictipn. A street rail- 
 road company is responsible for an injury to the 
 horse of an individual, which could not have 
 occurred but for the improper laying of its rail, 
 even though a defect in the pavement of the 
 street next their track aided in producing the 
 accident. N. Y. C. P., 1872, Carpenter v. Central 
 Park, etc. R. R. Co., 11 Abb. N. S. 416 ; S. C, 4 
 Daly, 650. 
 
 80. The negligence of the municipal author- 
 ities in keeping the pavement in repair will not 
 relieve the company from liability in such a 
 case, especially where the company is author- 
 ized to take up and replace the pavement on its 
 line. lb. 
 
 81. Inaccurate time-piece. It is the duty 
 of a railroad company employing men to relay 
 ties without interfering with the running of its 
 trains, to see that such men or the persons in 
 charge of them are provided with accurate time- 
 pieces, so that they may know when to expect 
 trains and have the tracks in order before tlieir 
 arrival, and a failure to do so is negligence. 
 Sup. Ct., 1862, Matteson v. New York Cent. R. R. 
 Co., 62 Barb. 364. 
 
 82. Insecure gangway. A carrier of pas- 
 sengers by water, which permits its vessel to 
 leave the dock before the gate provided for clos- 
 ing the gangway is properly secured, is guilty 
 of negligence, and is liable to a passenger who. 
 
 without concurring negligence on his part, is 
 pushed by a rush of the passengers through the 
 gate into the water. Sup. Ct., 1876, Cleveland 
 V. N. J. Steamboat Co., 5 Hun, 623. 
 
 88. That the negligence or misconduct of the 
 other passengers contributed to the injury is no 
 excuse for the carrier. lb. 
 
 84. Insu£Bciency of bulwarks. Where a 
 passenger upon a steamboat on Lake Champlain, 
 came out upon the forward deck, which was not 
 intended nor prepared for the use of passengers, 
 and his hat blowing off, he sprang to recover it, 
 slipped upon the deck, fell and rolled overboard 
 through tlie gangway, which was only protected 
 by a rail at the top, and was drowned, and it 
 appeared that all the boats on the lake were 
 constructed in tlie same manner, and had been 
 so run for years without any such accident oc- 
 curring, — Held, tliat the omission of a more per- 
 fect bulwark at the gangway was not such 
 negligence on the part of the steamboat com- 
 pany as to make them liable for the accident ; 
 and the defendant's negligence must, under the 
 circumstances, be deemed to have contributed 
 thereto. Sup. Ct., 1872, Dongan v. Champlain 
 Transportation Co., 6 Lans. 430 ; Aff'd, S. C., 56 
 N. Y. (11 Sick.) 1. 
 
 85. Know^ledge, when essential. Negli- 
 gence consists in omitting to do wliat a person 
 ought to do ; and it is essential to it that the 
 party charged should have knowledge that there 
 is a duty for him to perform ; or he must have 
 omitted to inform himself as to such duty. Sup. 
 Ct.. 1861, Sherman v. Western Trans. Co., 62 
 Barb. 150. 
 
 86. Knowledge is conclusively presumed when 
 the law imposes the duty; but, when it is not 
 so imposed, the party alleging negligence must 
 prove that the other party was cognizant of the 
 duty neglected by him. lb. 
 
 87. Such knowledge may be established either 
 by direct evidence, or by proof of facts and 
 circumstances from which it may be inferred, 
 lb. 
 
 88. Although there is no statute requiring it, 
 yet it is obviously the duty of persons navigat- 
 ing boats on the canals to have the bottoms of 
 their boats in such condition as to permit the 
 free passage of tow lines of other boats under 
 them ; and a person guilty of neglect in that 
 respect is liable for the damages naturally and 
 necessarily flowing therefrom; but, to render 
 him liable, it must be shown that he knew of 
 the defect long enough before the injury to 
 have remedied it, or that such defect had con- 
 tinued so long that with proper diligence he 
 would have discovered it. lb. 
 
 89. Express notice of the dangerous condition 
 of a cross-walk, which a city is bound to keep 
 in proper and safe condition, is not necessary in 
 order to render the city liable for injuries sus- 
 tp,ined in consequence of its neglect, but the 
 lapse of time enough to make its condition no- 
 torious is sufficient. Sup. Ct., 1872, Walker v. 
 Vitg ofLockport, 43 How. 306. 
 
 90. It is not necessary, in order to render a 
 city liable for an injury caused by the accumu- 
 lation of ice upon a sidewalk, that actual notice 
 thereof should be brought home to the corpora- 
 tion, but it is sufficient if such accumulation has 
 remained so long as to make the obstruction 
 public and notorious. Sup. Ct., 1872, Mosey v. 
 City of Troy, 61 Barb. 580. 
 
 91. Leaving cars to run without con- 
 trol. One who attempts to cross a railroad track 
 at a point where the company has permitted 
 people to acquire a habit of crossing its track 
 
494 
 
 JSTEGLIGENCE. 
 
 frequently, is not a trespasser, and the company- 
 is liable for an injury to him caused by its neg- 
 ligence in allowing detached cars to run over 
 that portion of tM track without any one to 
 control tliem. Sup. Ct., 1875, Sutton v. New 
 York Cent. Sr Hud. Riv. R. R. Co., 4 Hun, 760. 
 
 92. Leaving open trap-door. In the 
 absence of proof of defective or negligent con- 
 struction, or of actual negligence on the part of 
 a landlord in leaving open the trap-door to his 
 cellar-way in a tenement house, he cannot be 
 held liable for injuries sustained by a visitor to 
 one of his tenants in falling down such cellar- 
 way. The fact that 'he himself occupies a part 
 of the house raises no presumption of negli- 
 gence against him, nor is there any such pre- 
 sumption against any particular occupant, but 
 each is answerable only for his own negligence. 
 N. T. Supr. Ct, 1873, Kaiser v. Hiiih, 46 How. 
 161. 
 
 93. Malpractice by physician. If a sys- 
 tem of treatment for particular dislocations has 
 been prescribed by medical writers, or by prac- 
 tical surgeons, and tlius become established, it is 
 incumbent upon a surgeon, in treating such an 
 injury, to conform to that system ; and, if he 
 departs from it, he does so at his peril. Sup. 
 Ct., 1871, Carpenter v. Blake, 60 Barb. 488. 
 
 94. Where there is a necessity of keeping the 
 limb in the position in which it is left by the 
 surgeon after replacing the bones, and a ten- 
 dency to assume a wrong shape, the omission of 
 the surgeon to disclose the danger so that proper 
 precautions may be taken to prevent it, is cul- 
 pable negligence. lb. 
 
 95. The patient's assent to the discharge of 
 the surgeon is no protection to him against lia- 
 bility for negligence or malpractice on his part 
 previous thereto, if such assent was procured by 
 false representations. lb. 
 
 96. In an. action against a surgeon for mal- 
 practice, the question -whether he is skilful in 
 his profession or not is one of the material is- 
 sues, as he is strictly accountable for the conse- 
 quences of his acts, if he has not competent 
 skill. Ct. App., 1872, Carpenter v. Blake, 50 N. 
 Y. (5 Sick.) 696 ; Rev'g S. C, 60 Barb. 488. , 
 
 97. Obstruction of side-walk. Where a 
 stone had been placed by some one in a city 
 sidewalk over a hole in a culvert, the proper 
 covering of which had been destroyed, and the 
 plaintiff in passing along the street on a dark 
 night, struck and fell over the stone, breaking 
 her leg ; in an action for the injury, — Held, that 
 express notice of the obstruction was not neces- 
 sary to render the municipal corporation liable, 
 but it was sufficient if it had remained there so 
 long that they might be presumed to have ndtice. 
 Ct., App., 1873, PImdterll v. Mayor, etc. of New 
 York, 56 N. Y. (10 Sick.) 666. 
 
 98. Omission of notice. Shippers of dan- 
 gerous goods are bound to give notice of thejr 
 nature to the carrier, or persons acting for him 
 in receiving them, £^nd their omission to do so is 
 negligence, which renders them liable for the 
 consequences. Sup. Ct, 1872, Barney v. Burst- 
 enbinder, 7 Lans. 210 ; S. C, 64 Barb. 212. 
 
 99. Where the agent of the shipper, acting in 
 the course of his ordinary employment, shipped 
 nitro-glycerine to California by a carrier, with- 
 out notice of the nature of the shipment, and 
 when it arrived at San Francisco, the package 
 having leaked, was taken to a warehouse for 
 examination, and while being opened for that 
 purpose it exploded, damaging the warehouse 
 and freight therein,— fieW, that the shipper was 
 liable for the damages^ although the opening of 
 
 the package was the direct cause of the explo- 
 sion, lb. 
 
 100. Omission of signals. In an action 
 against a railroad company to recover for the 
 death of plaintiff's intestate, a child two years 
 of age, killed by an engine of the defendant on 
 a track opposite his parents' residence, — Held, 
 that the failure to ring the bell or sound the 
 whistle, the point of the accident not being at a 
 crossing, was not negligence ; nor was the fact 
 that the track fence was defective, no proof be- 
 ing given that one was needed to keep animals 
 from straying upon the track ; nor the further 
 fact that only one man was upon the engine at 
 the time, the proof showing that he was compe- 
 tent Ct. App., 1874, Prendegast v. New York 
 Central ^ Hudson Riv. fls R. Co., 58 N. Y. (13 
 Sick.) 652. 
 
 101. Neglect to ring the bell for the entire dis- 
 tance required by law does not necessarily 
 make a railroad company liable for an injury 
 causing death to a person attempting to pass at 
 a crossing, if the bell was rung or whistle 
 sounded for such a distance from the crossing 
 as fully and fairly to give the deceased timely 
 and sufficient warning of the approach of the 
 train to prevent him from attempting to cross 
 the track. Sup. Ct., 1871, Cook v. N. Y Central 
 K R. Co., 5 Lans. 401. 
 
 102. Projecting iron. Where a train of 
 cars, in which the plaintiff was a passenger, 
 while passing a construction train running in an 
 opposite direction, was struck by a bar of iron 
 projecting from such construction train, and the 
 plaintiff severely injured thereby, — Held, that 
 in the absence of evidence tending to explain 
 or show how the iron bar came in that position, 
 the inference was plain that the injury resulted 
 from the inattention and negligence of the per- 
 son having the control and management of the 
 construction train; and that was a violation of 
 the obligation of the railroad company to the 
 plaintiff as a passenger, rendering it liable to 
 him for the damages sustained. Sup. Ct, 1872, 
 Walker v. Erie Ry. Co., 63 Barb. 260. 
 
 103. Runaway horse. It is the duty of the 
 owner of a horse which is liable to run away, 
 knowing that fact, to secure him when he leaves 
 him standing in the street, or put him in charge 
 of some person capable of taking care of him. 
 If, being left in charge of a feeble boy, he runs 
 away, the owner is liable for the damages 
 caused thereby. Sup. Ct, 1874, Frazer v. Kim- 
 ler, 2 Hun, 514. 
 
 104. Where a team, which had been worked 
 together for a long time and were considered 
 perfectly safe, took fright from some unex- 
 plained cause while their driver was transferring 
 them from one end to the other of a horse car, 
 holding the whiffietree in one hand and the lines 
 in the other, and broke away from him in spite 
 of his efforts to hold them, — Held, that there 
 was no evidence to support an action for negli- 
 gence. N. Y. C. P., 1873, Quinlan v. Sixth Ave. 
 R. R. Co., 4 Daly, 487. 
 
 105. Nor would proof that the defendant's 
 driver was sick at the time be evidence of negli- 
 gence, uiiless it also appeared that his disease 
 was such as i;endered him unfit or incompetent 
 for the service. lb. 
 
 106. Servant's negligence. A master is 
 not responsible for the negligent driving of his 
 horse and buggy by a servant, while the latter 
 is engaged, not in the business of his master, 
 but upon an errand of his own, without the 
 knowledge or consent of the former. N. Y. C. 
 P., 1872, Sheridan v. Charleck, 4 Daly, 338. 
 
NEGLIGENCE. 
 
 495 
 
 107. Sub-contractor, neglect of. A rail- 
 road company which lets the contract for its 
 entire road to a contractor for an agreed price, 
 is not liahle to a person injured in consequence 
 of tlie carelessness of workmen employed by a 
 suh -contractor under it& contractor in blasting 
 rocks upon the job, the work itself being lawful, 
 and no relation of master and servant existing be- 
 tween the company and such workmen. Com. 
 App., 1874, McCafferty v. Spuyten Duyvil §■ P. M. 
 R. R Co., 48 How. 44. 
 
 108. Sudden starting of a railroad train 
 either backward or forward, after it has been 
 stopped to permit passengers to alight, is neg- 
 ligence, which renders the company liable to a 
 passenger who is thrown out and injured by 
 reason of the sudden jerk, while leaving the 
 cars. Sup. Ct., 1876, MUliman v. N. Y. Cent. ^ 
 Hud. Riv. R. R. Co., 4 Hun, 409. 
 
 109. It is not negligence per se, for persons 
 in charge of a street railroad car to start the 
 horses while a passenger is walking in the car 
 with the intention of getting off ; but a person 
 seeking to recover damages for injuries received 
 by reason of such starting must show that there 
 was actual negligence. N. Y. Supr. Ct. 1870, 
 Dickson v. Broadway and Seventh Av. R. R. Co., 
 41 How. 151 ; S. C, 83 N. Y. Supr. (IJ. & Sp.) 330. 
 
 110. In such a case, it would be equally neg- 
 ligence on the part of the passenger to be walk- 
 ing in the car, towards the door, with the inten- 
 tion of getting off, knowing that the horses were 
 about to start, without guarding against a fall 
 by putting her hand upon the door casing, or 
 otherwise. lb. 
 
 111. A railroad passenger is entitled to a 
 reasonable time to alight from the car, and a 
 person who is a cripple, or otherwise feeble or 
 infirm, is entitled to consideration on that ac- 
 count, and the railroad company is liable for an 
 injury to such a passenger caused by starting the 
 car without allowing her sufficient time to alight. 
 N. Y. Supr. Ct., 1871, Colt v. Sixth Ave. R. R. Co., 
 83 N. Y. Supr. (1 J. & Sp.) 189. 
 
 112. The fact that the accident was caused 
 by the passenger's dress being caught by the 
 car as she was alighting, and throwing her down 
 as the car moved, does not relieve the company 
 from liability, if sufficient time was not given 
 for her to alight and detach herself from the car. 
 lb. 
 
 113. Sudden stopping. It is negligence in 
 a railroad company to allow its cars to proceed 
 without control, after the engine has been de- 
 tached, and strike with great force against a 
 bumper so as to cause a sudden stop, and the 
 company will be liable for an injury to a pas- 
 senger caused thereby. Ct. App., 1873, Wylde 
 v. Nm-thern R. R. Co., 14 Abb. N. S. 213; S. C, 
 63 N. Y. (8 Sick.) 166. 
 
 114. Uncovered sluiceiway. A railroad 
 company is bound to provide an ordinarily and 
 reasonably safe place for the performance of the 
 work of coupling cars, !ind where it leaves a 
 trench or sluiceway under its tracks but partial- 
 ly covered at the usual place for coupling cars, 
 and a brakeman engaged in that work falls into 
 it and is injured, that is sufficient to require the 
 question of negligence to be submitted to the 
 jury. The brakeman's knowledge of the exist- 
 ence of the trench is not sufficient to charge him 
 with contributory negligence in such a case. Ct. 
 App., 1876, Plank v. N. Y. Cent. ^ Hud. Riv. 
 R. R. Co., 60 N. Y. (15 Sick.) 607. 
 
 115. Use of fuel. It is not negligence on 
 the part of a railroad company to use such fuel 
 as is in ordinary use for the purposes to which 
 
 it puts it, unless it is of a dangerous or hazardous 
 quality. Sup. Ct., 1875, Collins v. N. Y. Cent. 
 Sr Hud. Riv. R. R. Co., 5 Hun, 499. 
 
 116. Violation of ordinance. The viola- 
 tion of a cilfy ordinance requiring the owner or 
 occupant of a store having a hoistway in it, to 
 cause such hoistway to be closed on the comple- 
 tion of the business of each day, is negligence, 
 which will render the owner or occupant liable 
 not only for the penalty, but for damages to a 
 policeman who enters such store in pursuit of 
 burglars and falls through such hoistway. N. 
 Y. Supr. Ct., 1874, Ryan v. Thomson, 38 N. Y. 
 Supr. (6 J. & Sp.) 133. 
 
 II. Depenses. 
 
 117. Contributory negligence is a matter 
 of defense, and is not to be affirmatively dis- 
 proved in order to entitle the injured party to 
 recover. Sup. Ct., 1873, Robinson v. N. Y. Cent, 
 i- Hud. Riv. R. R. Co., 65 Barb. 146. 
 
 118. A person injured by the negligence of 
 another, is not responsible for contributory neg- 
 ligence of a third person over whom, or whose 
 conduct, he has no control, although he is riding 
 with him at the time. lb. 
 
 119. Tlie contributory negligence which ex- 
 cuses a defendant from liability for injury 
 caused, in part at least, by his negligence, must 
 be the personal act of the party injured; other- 
 wise, as to him, all contributing thereto are joint 
 wrong-doers. Sup. Ct., 1874, Arctic F. Ins. Co. 
 V. Austin, 3 Hun, 195. 
 
 120. The owner of the cargo of a canal boat, 
 not under his control, can recover for the loss of 
 such cargo through collision of the boat, when 
 being towed by a steamer, with the tow of an- 
 other steamer, if such collision was caused in 
 part by the negligence of the latter steamer, 
 although there was contributory negligence on 
 the part of the captain of the canal boat. lb. 
 
 121. Where a passenger upon one public 
 conveyance is injured by a collision with an- 
 other, or with a vehicle of a different charac- 
 ter, negligence on the part of the driver of the 
 latter does not excuse the negligence of the 
 driver of the former conveyance, or bar an ac- 
 tion founded ^hereon. Com. App., 1873, Spooner 
 V. Brooklyn City R.fl. Co., 54 N. Y. (9 Sick.) 230. 
 
 122. in an action against one of two railroad 
 companies for injuries inflicted upon a passenger 
 by a coUisibn at tlie crossing of such roads, it is 
 no defense, if the defendant's servants were 
 negligent, that the negligence of the persons in 
 charge of the other company's car also contribu- 
 ted to the injury ; nor will the comparative cul- 
 pability of the two affect the liability of either. 
 Ct. App., 1871, Barrett y. I'hird Ave. R. R. Co., 
 45 N. Y. (6 Hand,) 628 ; Aff'g S. C, 1 Sweeny, 
 568 ; 8 Abb. N. S. 205. 
 
 123. Where no negligence is attributable to 
 the plaintiff himself, the fact that the collision 
 which caused his injury was produced by the 
 concurring negligence of the person with whom 
 he was riding gratuitously and the defendant's 
 servant, is no defense to an action for such 
 injury, and will not prevent a recovery. N. Y. 
 Supr. Ct., 1871, Metcalfy. Baker, 11 Abb. N. S. 
 431. 
 
 124. Attempt to avoid danger. An in- 
 stinctive effort by one walking on a sidewalk to 
 escape sudden impending danger from the negli- 
 gence of another in driving an express wagon 
 rapidly behind her on the walk, so near as to 
 give her reason to believe that she was in dan- 
 ger, is not such negligence on her part as will 
 
496 
 
 NEGLIGENCE. 
 
 relieve the owner of the wagon from liability for 
 an injury received by her in springing aside, 
 even though she would in fact have received no 
 injury if she had remained in her position on 
 the walk. Under such circumstances she need 
 not delay in order to ascertain the exact nature 
 and measure of the danger. Sup. Ct., 1871, 
 Coulter V. Am. Merchants XJn. Express Co., 5 
 Lans. 67 ; AfE'd, S. C, 56 N. Y. (11 Sick.) 585. 
 
 125. Attempt to pass. It is not contribu- 
 tory negligence on the part of the owner of _a 
 passenger boat on the canal, to endeavor to pass 
 a freight boat overtaken by him ; and if the 
 owner of the latter boat endeavors to prevent its 
 passage and thereby causes damage to it, he is 
 liable therefor. Sup. Ct., 1873, Houghton v. 
 Wake, 64 Barb. 613. 
 
 126. Collision of vessels. The mere non- 
 compliance, by persons navigating a vessel, with 
 certain prudential regulations prescribed by tlie 
 laws of the United States and of this State, in 
 respect to lookout, licensed pilot, and lights, 
 does not per se constitute negligence, which will 
 prevent the owner from recovering damages for 
 the loss of his vessel through collision with 
 another. Ct. App., 1874, Blanchard v. New Jer- 
 sey Steamboat Co., 59 N. Y. (14 Sick.) 292. 
 
 127. Such non-compliance may raise a pre- 
 sumption that the injury was attributable there- 
 to, in the absence of evidence to the contrary ; 
 but, if there is evidence tending to show that 
 the collision resulted solely from other causes, 
 such non-compliance is to be deemed merely as 
 one of the circumstances to be taken into con- 
 sideration in determining the liability of the 
 parties. lb. 
 
 128. There is no " rule of the road " which 
 requires vessels or steamers, in all cases and un- 
 der all circumstances, to pass each other on the 
 right ; but each must take such a course and di- 
 rection as will be least likely to injure the otlier, 
 and will be best calculated to avoid a collision, 
 and that one which has the greatest facilities for 
 choosing and taking its adopted course, is called 
 upon to give preference to the other and yield to 
 it the choice of routes. lb. 
 
 129. The fact tliat a vessel injured by a col- 
 lision had been imprudently and negligently 
 placed in the situation in which she received the 
 damages, will not defeat a, recovery by her 
 owner for the negligence of those in charge of 
 the colliding vessel, provided everything possi- 
 ble was done by her oflSeers at the time to avoid 
 the collision. Negligence, to constitute a defense, 
 must be the proximate cause of the injury, or, 
 at least, directly contributory to it. Ct. App., 
 1872, Hoffman v. Union Ferry Co. of Brooklyn, ij 
 N. Y. (2 'Sick.) 176. 
 
 130. In an action against the owners of a 
 steamer for damages caused by a collision with 
 a sailing vessel, it is no defense that the latter 
 was drifting with the tide in a navigable river, 
 and took no measures by dropping anchor or 
 otherwise, to avoid such collision. Ct. App., 1871, 
 Parrott v. Knickerbocker Sf New York Ice Co., 46 
 N. Y. (1 Sick.) 361 ; Eev'g S. C, 2 Sweeny, 93. 
 
 181. In an action for negligently colliding with 
 and sinking a grounded vessel, it is no defense 
 that the officers of the injured vessel were guilty 
 of negligence in running her aground, where 
 that occurred several hours before the collision, 
 and the injury might still have been avoided by 
 the exercise of reasonable care on the part of 
 the defendants. Ct. App., 1870, Austin v. N. J. 
 Steamboat Co., 48 N. Y. (4 Hand,) 75. 
 
 1,S2. It appearing that the injury occurred by 
 reason of defendant's boat attempting to pass 
 
 on the wrong side, the channel being on the 
 other side, and that fact being known to the offi- 
 cers of plaintiff's boat, — Held, no negligence in 
 the latter in omitting to signal or otherwise warn 
 the approaching vessel. lb. 
 
 183. Crossing railroad. The ocdinary care 
 required of a traveller upon tlie highway ap- 
 proaching a railroad crossing, involves a vigilant 
 use of his senses by looking in every direction 
 from which danger may be apprehended and at 
 the same time attentively listening for any sig- 
 nals, or evidences of an approaching train ; and 
 if tliere is any omission of duty in this respect, 
 and injury results, either wholly or in part 
 therefrom, to his person or property, he must 
 bear the loss. Ct. App., 1874, Weber v. New 
 York Central ^ Hudsoh Riv. R. R. Co., 58 N. Y. 
 (13 Sick.) 451. 
 
 134. While the vigilance and caution of the 
 traveller must be proportioned to the known dan- 
 ger of injury, it is also in a measure limited by 
 the usual and ordinary signals and evidences of 
 dangei:. lb. 
 
 135. The rule does not require the traveller to 
 stop for the purpose of listening, or, if riding, to 
 leave his team and go to the track for the pur- 
 pose of looking or to rise up in his vehicle and 
 go upon the track in that position so that he may 
 get a better view. Ct. App., 1872, Davis v. N. 
 Y. Central §■ Hudson Riv. R. R. Co., 47 N. Y. (2 
 Sick.) 400. 
 
 136. It is negligence in a person driving a team 
 to approach a railway crossing without looking 
 to see whether a train is coming, or to do so at 
 such a rapid rate of speed as to render it diffi- 
 cult, if not impossible, after discovering the 
 danger, to stop his team before the train arrives, 
 or to disregard warnings given of the danger ; 
 and a person guilty of such negligence cannot 
 recover for an injury sustained by collision with 
 a passing train. Sup. Ct., 1873, Morse v.' Erie 
 Ry. Co., 65 Barb. 490. 
 
 187. A person who, on entering upon a rail- 
 road crossing, fails to look in both directions for 
 approaching trains, is guilty of negligence, which 
 will prevent his recovery for injuries to which 
 his omission contributed, notwithstanding n6 
 bell was rung or whistle sounded by those in 
 charge of the train. Ct. App., 1871, Gorton v. 
 Erie Ry. Co., 45 N. Y. (6 Hand,) 660. S. P., 
 Haight v. N .Y. Cent. R. R. Co., 7 Lans. 11. 
 
 138. A traveller is not justified in omitting to 
 look for an approaching train, when crossing a 
 railroad track, by the absence of a flagman who 
 was usually kept there by the company, but will 
 be guilty of contributory negligence if he does so, 
 which will prevent a recovery for ,an injury re- 
 ceived by a collision with the train in attempting 
 to cross. The company is not bound to keep a 
 flagman at a crossing, and its omission to do so 
 is not negligence. Ct. App., 1875, McGrath v. 
 N. Y. Cent. ^ Hud. Riv. R. R. Co., 59 N. Y. (14 
 Sick.) 468 ; Eev'g S. C, 1 Hun, 437. 
 
 139. A person crossing a railroad track has no 
 right to omit the exercise of proper care, upon 
 the assumption that a train is being run in pre- 
 cise obedience to a city ordinance. Ct. App., 
 1874, Calliqan v. N. Y. Cent. ^ Hud. Riv. R. R. 
 Co., 59N.Y. (14 Sick.) 651. 
 
 140. A person crossing a railroad at its inter- 
 section with a street, where there are three 
 tracks, the second being six feet from the first, 
 and the third 20 feet from the second, and 
 the view obstructed only by cars standing on 
 the first track, who, after crossing the first and 
 second tracks in safety, attempts to cross the 
 tliird without looking to see if trains are ap- 
 
NEGLIGENCE. 
 
 497 
 
 proaching, is guilty of contributory negligence, 
 and no recovery can be had for an injury^re- 
 ceired from a passing train causing her death. 
 Sup. Ct., 1874, Mitchell v. N. Y. Cent. ^ Hud. 
 R. R. R Co., 2 Hun, 535. 
 
 141. Where a traveller upon a highway ap- 
 proaohing'a railroad crossing at an acute angle, 
 in a covered carriage with top up, took no 
 thought or precaution as to the railroad, though 
 knowing its proximity, until, coming suddenly 
 upon the track within about six feet, and hear- 
 ing a rumbling sound, he whipped his horses up 
 and was struck by the engine before getting 
 across the track, — Held, that he was guilty of 
 contributory negligence which would prevent 
 a recovery for the injury. Eael, C.j dissents. 
 Com. App., 1873, HP Call v. New York Central 
 R. R. Co., 54 N. Y. (9 Sick.) 642. 
 
 142. One who approached a standing train of 
 cars on the side opposite the depot platform for 
 the purpose of getting on board, and while 
 walking between tlie tracks toward tlie end of 
 the train without looking behind, was struck by 
 a working train approaching him from behind 
 and killed, — Held, guilty of contributory negli- 
 gence, which would prevent a recovery, althougli 
 such working train gave no signal of its ap- 
 proach. Sup. Ct., 1875, Elwood v. N. Y. Cent. 
 Sr Hud. Riv. K R. Co., 4 Hun, 808. 
 
 143. In an action for injuries causing death 
 to plaintiff 's intestate, received in crossing a 
 railroad track, — Held, that a refusal to instruct 
 the jury that if they believed the deceased, 
 before reaching the track, saw the train ap- 
 proaching, and notwithstanding this went upon 
 the track, where she was hit by the car, she 
 was chargeable with negligence, was erroneous. 
 Ct. App., 1872, Madden v. N. Y. Central and 
 Hudson Riv. R. R. Co., 47 N. Y. (2 Sick.) 665. 
 
 144. A passenger by railroad, whose eyesight 
 is so impaired that he can see but ninety or one 
 hundred feet, is guilty of contributory negligence 
 if he ahghts from the train in which he is and at- 
 tempts to cross a track on which another train 
 is approaching at a high rate of speed, the noise 
 of which can be heard for a mile, without listen- 
 ing for its approach, or waiting until lie can see, 
 by the use of his impaired vision, that the way 
 is clear. N. Y. Supr. Ct., 1871, Gonzales v. N. 
 Y. Sr Harlem R. R. Co., 33 N. Y. Supr. (1 J. & 
 Sp.) 57 ; S. C, before, 6 Bob. 93 ; 38 N. Y. 
 440; 1 Sweeny, 506 ; 39 How. 407. 
 
 145. When a brakeman calls out the name of 
 the station to which a train is approaching, tliat 
 is to be regarded as a simple notice of that fact 
 to passengers, so that tliose intending to stop 
 there may be ready to aliglit, not as a direction 
 to leave the cars and a guaranty that it is safe 
 to do so. lb. 
 
 146. The act of a person in crossing a street 
 in the rear of a railroad train, which, thougli at 
 night, is furnished with no lights or other means 
 of warning at tliat end, and is backing so slowly 
 as to be apparently on the point of stopping, is 
 not per se negligence which will prevent a re- 
 covery for injuries received in consequence of 
 the sudden acceleration of the speed of the 
 train. Ct. App., 1878, Maginnis v. N. Y. Cen- 
 tral and Hud. R. R. R. Co., 52 N. Y. (7 Sick.) 
 215. 
 
 147. Although such person could see the ap- 
 proaching train, yet, unless she could see that 
 it was in fact approaching or moving it was not 
 negligence to go upon the track. lb. 
 
 148. The rule that a person about to cross a 
 railroad track is bound to look in both directions 
 to see if a train is approaching, is not applicable 
 
 32 
 
 to persons employed to do work in and upon 
 the tracks and road-bed of a railroad ; and it is 
 not negligence on their part not to do so, wliile 
 necessarily giving attention to their work, which 
 will prevent a recovery for injuries received 
 from a passing train. Sup. Ct., 1876, Ominger v. 
 N. Y. Cent. Sr Hud. R. R. R. Co., 4 Hun, 159. 
 
 149. Crossing street. It is negligence per 
 se for a foot traveller to attempt to cross a public 
 thoroughfare ahead of approaching vehicles, 
 under circumstances involving sr close calcula- 
 tion of his chance of crossing safely. Com. 
 App., 1873, Belton v. Baxter, 14 Abb. N. S. 404 ; 
 S. C., 54 N. Y. (9 Sick.) 245; Eev'g 38 N. Y. 
 Supr. (1 J. & Sp.) 182. 
 
 150. So held, where the footman saw a street 
 car approaching followed by a cart, and the for-" 
 mer stopping for a moment, he crossed in front 
 of it just in time to he run over by the cart, 
 which had turned out to pass the oar. lb. 
 
 151. A foot traveller has the same right to 
 cross a public thoroughfare as a vehicle to pass 
 in the other direction, and however negligent 
 may be the effort of the former to cross, he 
 may recover for an injury inflicted by the 
 latter if by proper care on the part of the driver 
 it might have been avoided. lb. 
 
 152. To enter upon a street crossing in a city, 
 where moving vehicles are numerous, and a 
 collision with them likely to produce serious 
 injury, without looking in both directions along 
 the street to ascertain whether any are ap- 
 proaching and if so their rate of speed, and how 
 far from the crossing, is negligence, which will 
 prevent a recovery for injuries received by the 
 one so crossing. Ct. App., 1871, Barker v. Sav- 
 age, 45 N. Y. (6 Hand,) 191; Eev'g S. C, 1 
 Sweeny, 288. 
 
 153r Footmen have no right to a street cross- 
 ing superior to teams. They each have the 
 right, equally and in common, and in its exer- 
 cise are bound to use reasonable care for their 
 own, safety and to avoid injury to others equally 
 entitled. ^Ib. 
 
 154. A person residing near a public street 
 and accustomed to ride up and down it on the 
 cars, is not, by reason thereof, chargeable with 
 notice that it is a street where gentlemen are in 
 the habit of testing the speed of fast horses, so 
 as to render it negligence for her to attempt to 
 cross. Sup. Ct., 1871, Moody v. Osgood, 60 
 Barb. 488, 
 
 155. Entering in dark. Where the only ac- 
 cess to the upper story of a building was through 
 a hall in the lower story in which was a trap 
 door and hatchway, used by the landlord, who 
 occupied that story, during the day, but usually 
 closed for the night between six and eight 
 o'clock, — Held, that a tenant of the upper story 
 had an easement in such hall at all times for in- 
 gress and egress, while the landlord could use it 
 at all tiroes consistently with such right of the 
 tenant, and that it was not negligence per se for 
 the tenant to come in after the usual hour for 
 closing the trap door and attempt to pass with- 
 out a light, which would prevent a recovery for 
 an injury received by falling through the hatch- 
 way, causing his death. Ct. App., 1873, Totten 
 V. Phipps, 52 N. Y, (7 Sick.) 354. 
 
 156. Fording swollen stream. One who 
 knows the condition of a stream at a highway 
 crossing, and that the bridge, being unsafe, had 
 been uncovered and preparations made for re- 
 building, having forded the stream at that point 
 in the afternoon, attempts to ford it again the 
 same night, and after the stream has become 
 very much swollen by a heavy rain storm, and 
 
498 
 
 NEGLIGENCE. 
 
 loses a horse in the attempt, is guilty of negli- 
 gence which will prevent his recovering damages 
 tlierefor, even though the town authorities may 
 have been negligent in not sooner repairing the 
 bridge. Sup. Ct., 1874, Day v. Grossman, 1 Hun, 
 570. 
 
 157- Inattention. ■ If a driver, having in 
 cliarge a carriage and horses standing by or 
 near a railroad track, directs his whole attention 
 to reading a newspaper, and releases all hold 
 upon or controf over the horses, at a time when 
 the track is being cleared of snow by a snow- 
 plough and sweeper, he is guilty of such negli- 
 gence, that he cannot recover for damages to 
 the horses and carriage caused by the horses 
 .taking fright as the snow-plough passed them. 
 N. Y. Supr. Ct., 1872, Gray v. Second Ave. R. R. 
 Co., 34 N. Y. Supr. (2 J. & Sp.) 519. 
 
 158. Injury to child. An infant, even of 
 the tender age of eiglit years, is to be held to 
 the same degree of care and prudence that should 
 be exercised by one of more mature years ; and, 
 if he is chargeable with contributory negligence, 
 no recovery can be had for an injury sustained 
 by him througli tlie negligence of anotlier. N. 
 Y. Supr. Ct., 1873, Squire v. Cent. Park, N. ^ E. 
 Riv. R. R. Co., 36 N. Y. Supr. (4 J. & Sp.) 436. 
 
 159. So held where it appeared that as a car 
 was approaching, the child attempted to run 
 across the track in front of the horses, and was 
 run over and killed. lb. 
 
 160. A boy of the age of nine years is not 
 held to the same degree of vigilance to avoid 
 injury as would be required of an adult, but only 
 to that ordinary or reasonable care and caution 
 which might reasonably be expected from boys 
 of that age under the same circumstances ; and 
 is guilty of negligence only when he omits that 
 degree of care. Ct. App., 1875, Thurber v. Har- 
 lem Br., M. ^ F. R. R. Co., 60 N. Y. (16 Sick.) 
 326. 
 
 161. The degree of care exacted of an individ- 
 ual is measured as well by his capacity as by 
 the circumstances of the case. lb. * ' 
 
 162. A child, seven years of age, who is in- 
 jured while attempting to cross a railroad, is 
 not chargeable with negligence contributing to 
 the injury, for the mere omission to use the 
 same degree of caution as an adult would be 
 bound to exercise. Sup. Ct., 1873, Costello v. 
 Syracuse, Ring, and N. Y. R. R Co., 65 Barb. 92. 
 
 163. The act of a parent sending a child three 
 years and two months old across the track of a 
 street railroad in charge of a sister of the age of 
 nine and one-half years, is not per se negligence, 
 which will bar an action against the railroad 
 company for negligence resulting in his death. 
 Ct. App., 1872, Ihl V. Forty-second St. R. R. Co 
 47 N. Y. (2 Sick.) 317. 
 
 164. If the child exercised proper care, and the 
 injury was caused wholly by the negligence of 
 defendant's driver, the defendant is liable, with- 
 out regard to the question whether it was negli- 
 gent in the parent to permit the child to go out 
 as it did ; and though the child was negligent, 
 yet, not being sui Juris by reason of his tender 
 years, that will not relieve the defendant from 
 liability, unless negligence on the part of the 
 guardian or custodian brought about the situa- 
 tion, or contributed to tlie injury. lb. 
 
 165. Where in an action against a railroad 
 company to recover damages for the killing of 
 plaintiff's intestate, it appeared that the latter 
 was an intelligent boy, 13 years of age, and was 
 familiar with the running of trains at the point 
 where the accident occurred, that he was last 
 seen alive a short distance from and approach- 
 
 ing the track, on his return from school, that 
 socta after two trains passed in opposite direc- 
 tions, and that he was found in the cattle guard 
 between the two tracks, his position indicating 
 that he was killed by a train which, several feet 
 from the track could have been seen for a long 
 distance ; — Held, that the evidence was not suf- 
 ficient to justify a finding that the deceased was 
 free from contributory negligence and would 
 not therefore sustain a verdict for the plaintiff, 
 although sufficient proof was given of defend- 
 ant's negligence. Ct. App., 1874, Reynolds v. 
 New York Central and Hud. Riv. R. R. Co., 68 
 N.Y. (13 Sick.) 248. 
 
 166. In an action for an injury by a railroad 
 train to a child two and a half years old, where 
 it appears that the engine-driver might, by the 
 exercise of ordinary care, have stopped the en- 
 gine, and so have avoided the injury, neither 
 the fact that the child was wrongfully on the 
 railroad, or that his own negligence or that of 
 his parents contributed to the injury, constitutes 
 a bar to a recovery. Sup. Ct., 1875, Kenyon v. 
 N. Y. Central and Hud. Riv. R. R. Co., 5 Hun, 
 479. 
 
 167. Where a child four years of age escaped 
 into a city street, and there obtained a ride in a 
 grocer's wagon driven by a young man 20 years 
 of age, sitting on the end of the seat, and while 
 crossing a street railroad track was jostled off 
 and fell on the track where he was run over by 
 a car through the negligence of its driver ; — 
 Held, that the child's being upon the street, or 
 riding on the end of the seat was not, as a mat- 
 ter of law, negligence relieving the railroad 
 company from hability. Ct. App-, 1874, Bahr- 
 enburgh v. Brooklyn City, etc. R. R. Co., 56 N. Y. 
 (11 Sick.) 652. 
 
 168. In order to constitute negligence on the 
 part of the parent or guardian in respect to the 
 care of a child which will prevent a recovery of 
 damages for an injury to such child caused by 
 negligence, there must be an omission of such 
 care as persons of ordinary prudence exercise 
 and deem adequate for that purpose. Brooklyn 
 City Ct., 1874, Mullaney v. Spence, 16 Abb. N. S. 
 319. 5 
 
 169. It is not negligence per se, for the parents 
 of a child, six years of age, to permit him to go 
 upon a street unattended, in a part of a city oc- 
 cupied chiefly by laborers, and where but few 
 vehicles are passing, which would prevent a re- 
 covery by him for injuries received from a fall- 
 ing lumber pile. Ct. App., 1872, Cosgrove v. Og- 
 den, 49 N. Y. (4 Sick.) 255. 
 
 170. Where a father, knowing of an unprotect- 
 ed area on the premises of another, sent his 
 child, an infant of between 3 and 4 jfears of age, 
 to such premises unattended, and it fell into the 
 area and was injured, — Held, that the father 
 was guilty of contributory negligence, and no 
 action for the injury could be sustained. N. Y. 
 Supr. Ct., Sp. T., 1874, McLain v. VanZandt,iS 
 How. 80; AflE'd, S. C, 39 N. Y. Supr. (7 J. & Sp.) 
 847. 
 
 171. In an action against the landlord of a 
 tenement house for an injury to a child of three 
 years, caused by its falling from a piazza con- 
 nected and used with that part of the house 
 occupied by the parents, known by the parents 
 to be defective and insecure by reason of natu- 
 ral decay, upon which it had gone through the 
 inattention of its parents, — Held, that there was 
 contributory negligence on the part of the 
 parents which should prevent a recovery. N. Y. 
 C. P., 1872, Flynn v. Hatton, 43 How. 333 : S. C, 
 4 Daly, 652. 
 
NEGLIGENCE. 
 
 499 
 
 172. The rights of recovery of a child are con- 
 trolled by the neglect of its parents, to the same 
 extent as if it were capable of governing its 
 own conduct, and had beenequally neglectful. lb. 
 
 178. An infant of the age of 12 years travel- 
 ling with his mother, being unable to find a seat 
 in the same-car, was permitted by her to go for- 
 ward into the next car, and in attempting after- 
 ward to get off that car to return to her was 
 injured through the negligence of those in 
 charge of the train, — Held, that the granting of 
 such permission, under the circumstances, to an 
 infant of that age and of ordinary capacity, was 
 not, per se, an act of negligence which would 
 discharge the carrier. Ct. App., 1871, Dovms v. 
 New York Central R. R. Co., 47 N. Y. (2 Sick.) 
 83. 
 
 174. Intozicatioii. The mere fact that the 
 person receiving personal injuries through the 
 negligence of another was intoxicated at the 
 time, does not establish negligence on his part, 
 but unless it is shown that it contributed to the 
 injury it is of no importance. Sup. Ct., 1875, 
 JDitchett V. Spuyten Duyvil ^ Port M. R. R. Co., 6 
 Hun, 165. 
 
 175. Log throTwn in river. One whose 
 vessel is unlawfully and without his consent 
 removed from a dock where she is lying, and 
 left lying upon a log in the stream, is entitled to 
 recover for tlie damages sustained by her 
 settling on such log at low water, altliough lie 
 himself some time previously threw such log 
 overboard, that not being contributory negli- 
 
 fence on his part. Sup. Ct., 1875, Satterly v. 
 lalhck, 6 Hun, 178. 
 
 176. Iieaving property exposed. The 
 owner of property which is exposed to risk or 
 injury from or by reason of its location, as, 
 where it is situated at the side of a railroad in a 
 position of constant exposure to fire from the 
 locomotives, must use such care as prudence 
 would dictate in view of the unavoidable perils 
 to which it is subject, otherwise he cannot re- 
 cover for its loss by a fire so communicated. 
 Sup. Ct., 1875, Collins V.N. Y. Cent, i- Hud. Riv. 
 R. R. Co., 5 Hun, 499, 503. 
 
 177. liights, omission to use. The omis- 
 sion to provide or use the side lights required of 
 a vessel by the regulations for the government 
 of pilots is an act of negligence, which will pre- 
 vent her owner from recovering damages caused 
 by a collision resulting from the omission ; but 
 when the evidence tends to prove that the injury 
 resulted solely from causes other than the lack 
 of side lights, it becomes a question of fact, to 
 be submitted to the jury. Com. App., 1872, 
 Whitehall Transportation Company v. New Jersey 
 Steamboat Co., 51 N. Y. (6 Sick.) 369. 
 
 178. — improper use of. . If a vessel in 
 tow carries lights indicating that she is at 
 anchor, and a colliding vessel is deceived there- 
 by, that will be contributory negligence, which 
 will prevent her owner from recovering damages 
 for the collision ; but negligence of a plaintiff, to 
 constitute a defense, must contribute to the in- 
 jury, and the want of proper lights will be no 
 bar, if those in charge of the other vessel knew 
 the true state of facts, and- could, with reason- 
 able care, have avoided the injury. Ct. App., 
 1872, Silliman v. Leivis, 49 N. Y. (4 Sick.) 879. 
 
 179. The owner of one vessel in tow of an- 
 other is not responsible for the negligence of 
 those in charge of the latter. lb. 
 
 180. Not examining. A manufacturer can- 
 not maintain an action against one from whom 
 he purchased certain chemical ingredients to be 
 used in his manufacture, to recover damages for 
 
 injuries caused by the negligence of the defend- 
 ant in delivering to him a substance different 
 from that ordered, witliout proof of the absence 
 of contributory negligence on his part. N. Y. 
 C. P., 1873, Van Lien V. Scoville Man/. Co., 14 
 Abb. N. S. 74 ; S. C. 4 Daly, 74. 
 
 181. If by slight attention, the servant of the 
 plaintiff could have known that the substance 
 furnished was not the ingredient required, and 
 thus avoided the injury, his failure to do so was 
 contributory negligence. lb. 
 
 182. Obstructing track. A railroad com- 
 pany whose track occupies a portion of a pubjic 
 street, is entitled to the exclusive use of such 
 track, and is not liable, as for negligence, for 
 injuries caused by the refusal or neglect of a 
 cartman to give the whole track to one of its 
 freight cars. N. Y. C. P., 1872, Barker v. Hudson 
 Riv. R. R. Co., 4 Daly, 274. 
 
 183. It is negligence in the driver of a cart, 
 who has been driving along the track of a horse 
 railroad, immediately in front of the horses 
 attached to a car on such road, to turn off the 
 track at right angles so suddenly tliat the driver 
 of the car has not time to stop it before a collis- 
 ion occurs, which will bar the recovery by the 
 former of anv damages for such collision. N. Y. 
 Supr. Ct., 1871, Adolphv. Central Park, N. Sr E. 
 Riv. R. R. Co., 33 N. Y. Supr. (1 J. & Sp.) 186. 
 
 184. Passenger getting oii. It is not, as 
 matter of law, contributory negligence for a pas- 
 senger to get on by the front instead of the rear 
 platform of a street car, when the car is at rest, 
 or on the point of rest although some motion 
 remains; especially where tlie driver invites 
 him to do so. N. Y. Supr. Ct., 1875, Afaher v. 
 Central Park, N. Sr E. R. R. R. Co., 39 N. Y. 
 Supr. (7 J. & Sp.) 155. 
 
 185. It is negligence on the part of a passen- 
 ger to get upon a street car that is alreadj- too 
 crowded to allow him to ride safely, and espe- 
 cially to get upon the front platform in disregard 
 of a notice posted on the car prohibiting passen- 
 gers riding there, and if in consequence of so 
 doing he is pushed off and injured he cannot re- 
 cover from the company therefor, although 
 they may also have been guilty of negligence. 
 N. Y. C. P., 1872, Tregear v. Dry Dock, etc. R R. 
 Co., 14 Abb. N. S. 49. 
 
 186. It is not necessarily negligence on the 
 part of one approaching a liorse car, which has 
 stopped for him to do so, to attempt to enter 
 on the side next another track, which will pre- 
 vent his recovering for injuries received in con- 
 sequence of the starting of the car after he has 
 got hold of the handle, and has one foot on the 
 step, and his being dragged along in that posi- 
 tion until struck by a car passing on the adjoin- 
 ing track, but it is a question for the jury upon 
 the evidence. Sup. Ct., 1874, Dale v. Brooklyn 
 City H. P. #• P. P. R. Co., 1 Hun, 146: AfE'd, 60 
 N. Y. (15 Sick.) 688. 
 
 187. The act of a person in rushing at a train 
 passing a station, at which he has purchased 
 a ticket, at a slow rate of speed, but before it 
 has come to a stop, and attempting to get on, 
 and, when thrown from the steps by the jerking 
 of the cars, hanging on to the irons, and continu- 
 ing inefiectual attempts to get on for several 
 rods, and until he is injured by collision with 
 a platform at the side of the track, is such negli- 
 gence as will justify a non-suit in an action by 
 him for such injuries ; and he will not be ex- 
 cused by the facts that a brakeman upon the 
 train had called the name of the station, and 
 that other passengers were getting on, or even 
 that on previous occasions the train had slowed 
 
500 
 
 NEGLIGENCE. 
 
 up at the station without stopping at all. Ct. 
 App., 1872, Phillips V. Rensselaer ^ Saratoga B. R 
 Co., 49 N. Y. (4 Sick.) 177; Rev'g S. C, 57 
 Barb. 642. 
 
 188. Such negligence on his part is not excused 
 by the fact tliat he had before got upon tlie 
 train at tlie same place when the cars did not 
 stop any more than at the time of the accident, 
 or by his knowledge of the fact that frequently 
 they did not stop any more, especially where it 
 appears that the train did in fact stop on this 
 occasion as soon as it arrived at the proper 
 place. lb. 
 
 189. — leaving seat. It is not contributory 
 negligence on tlie part of a railway passenger to 
 rise from his seat before the cars come to a 
 stop at the place of his destination, in order 
 to prepare for leaving the car, such as will 
 relieve the company from liability in case he is 
 thrown down and injured by the negligence 
 of the company in sufiering its cars to run on 
 uncontrolled until brought to a sudden stop by 
 striking forcibly against a bumper. Ct. App., 
 1873, Wyldev. Northern R.R. Co., 14 Abb. N. S. 
 213 ; S. C, 53 N. Y. (8 Sick.) 156. 
 
 190. — standing on platform. Although 
 standing upon the platform of a railroad car is 
 not negligence per se, but open to explanation, 
 yet, a passengei: who stands on the very edge of 
 such platform without holding on to anything, 
 having knowledge of the bad condition of the 
 street and track, caused by accumulations of ice 
 and snow, and maintains such position after he 
 has an opportunity to exchange it for a place of 
 comparative safety, until thrown ofE by a jerk of 
 the car occasioned by the bad condition of the 
 street and track, is guilty of negligence contrib- 
 uting to the injury received by him, and can- 
 not recover against the company, even though 
 they were also negligent. N. Y. Supr. Ct., 1871, 
 Ward V. Central Park, North Sr East Riv. R. R. Co., 
 42 How. 289; S. C. 11 Abb. N. S. 411 ; 33 N. Y. 
 Supr. (IJ. & Sp.) 392. 
 
 191. — standing on sleigh. It is not negli- 
 gence per se for a passenger upon a public sleigh, 
 when there is no seat accessible to him, to stand on 
 the outside, upon a guard or foot board con- 
 structed for the purpose by the carrier, and 
 where the latter has been accustomed to receive 
 passengers and to take their fares without 
 objection, such as would bar an action by him 
 for injuries received in consequence of a collision 
 resulting from the driver's negligence, although 
 he would not have received them had he been 
 upon the inside. Com. App., 1873, Spooner v. 
 Brooklyn City R. R. Co., 54 N. Y. (9 Sick.) 230. 
 
 192. A passenger upon such a vehicle has a 
 right to assume that the parts of the vehicle 
 prepared for the use of passengers, and destined 
 to receive them while in transit, are suitable and 
 safe for the purpose, and that the care of the 
 drivers will avoid any special risks which attach 
 to the particular position, lb. 
 
 193. — getting off. Where, upon the stop- 
 ping of a train at a station on a dark night, the 
 plaintiff, a girl of twelve years, with her father 
 and mother, in whose charge she was, started for 
 the door of the car, but before they reached it 
 the train began to move on, and the father tak- 
 ing the plaintiff under his arm, stepped from the 
 platform while the cars were in motion, and fell, 
 in consequence of which she was injured, — Held, 
 that as matter of law she was guilty of 
 contributory negligence, and could not recover 
 from the railroad company for such injury. Ct. 
 App., 1874, Morrison v. Mrie Railway Company, 
 66 N. Y. (11 Sick.) 802. 
 
 194. Where a railroad train having run past a 
 station, backed down to it, and while stopping 
 temporarily, without any announcement of the 
 station or notice to passengers to alight, and 
 without. the knowledge of any employe of the 
 company, a passenger attempted to get off from 
 the rear end of the last car, at a point where 
 there was no station platform, in a dark night, 
 and was thrown off by a sudden jerk of the 
 train, made in backing to the station, and in- 
 jured, — Held, that such passenger was guilty of 
 contributory negligence, and the company was 
 not liable for the injury. Sup. Ct., 1875, Taber 
 V. Del., Lack. ^ Western R. R. Co., 4 Hun, 765. 
 
 195. A passenger on a railroad ear, when ad- 
 vised or directed by a brakeman or other em- 
 ploye to alight from the train, has a right to 
 assume that he can get off in safety, although 
 the train is in motion, and it is not negligence on 
 his part to attempt to do so, but he has no right 
 to accept such advice from a fellow-passenger, 
 or to suppose that the latter knows more about - 
 the safety of the act than himself. Ct. App., 
 1874, Filer v. N. Y. Cent. R. R. Co., 59 N. Y. (14 
 Sick.) 351. 
 
 196. Getting off a street car at the end next 
 the horses, in violation of a regulation of the rail- 
 road company, is not such contributory negli- 
 gence as will relieve the company from liability 
 for an injury to-^e person so getting off, caused 
 by the negligence of the driver in changing the 
 horses from one end of the car to the other. The 
 liability of the company in such a case does not 
 necessarily result from the circumstance that the 
 person injured had been a passenger. Sup. Ct., 
 1874, PlMt V. Forty-Second Street §■ Grand Street 
 Ferry B. R. Co., 2 Hun, 124. 
 
 197. Riding on engine. Where the head 
 brakeman of a freight train, killed in a collision 
 in consequence of the negligence of the railroad 
 company, was at the time riding upon the 
 engine, where it was customary for men in his 
 station to ride, which custom was known and 
 acquiesced in by the superior oflBcers of the 
 road, — Beld, that he could not be charged with 
 negligence in so doing, nor with a violation 
 of duty, although the printed rules of the com- 
 pany, copies of which were furnished conductors 
 and engineers, but not to brakemen, and with 
 which he was not shown to be familiar, required 
 brakemen to remain at their post, without 
 specifying what that post was. Ct. App., 1874, 
 Sprang v. Boston Sr Albany R. R.. Co., 58 N. Y. (13 
 Sick.) 56. 
 
 198. ^Walking on track. A person walk- 
 ing upon or crossing a railroad track in the 
 evening, at a point where there is no street' or 
 highway, and no right of crossing has been 
 acquired by the public, by use, with notice to 
 and acquiescence of the company, is guilty of 
 contributory negligence, which will prevent his 
 recovering damages for an injury received from 
 a passing train while so on the track. Sup. Ct., 
 1874, Matze v. N. Y. Cent. #• Hud. R. R. R. Co., 
 1 Hun, 417. 
 
 199. The fact that people were in the habit 
 of crossing arid recrossing at that point, imposed 
 no duty upon the company of special care or 
 caution in running there ; and even a license to 
 use it for a crossing, would create no legal right 
 and impose no duty upon the company, except 
 the general duty to do no Intentional wrong or 
 injury. lb. 
 
 200. A person who, for his personal accommo- 
 dation, takes passage in the caboose of a freight 
 train not intended for passengers, by which he 
 has frequently travelled before, and, the caboose 
 
NEGLIGENCE. 
 
 501 
 
 being left according to a custom well known to 
 him, at some distance from the station, walks 
 down the main track, which Is clear and unob- 
 structed both ways, toward the depot, and while 
 stopping a moment at the request of a companion 
 steps behind some empty freight oars standing 
 on a side track on a sudden personal necessity, 
 where he is knocked down by the backing of an 
 engine against such cars, run over and killed, is 
 guilty of negligence which will bar his repre- 
 sentatives from recovering for his death. Ct. 
 App., 1871, Van Schaick v. Hudson Eiv. R. R. Co., 
 48N. Y. (4 Hand,) 827. 
 
 201. 'Walking over ice. Where there is 
 ice upon a sidewalk, covering only a part of the 
 walk so that it may be avoided, it is negligence 
 on the part of one who knows of its being there 
 and can plainly see it and easily avoid it, to 
 voluntarily and unnecessarily attempt to walk 
 over it, whicli will prevent his recovering dam- 
 ages for injuries occasioned by his slipping and 
 falling upon it, as against a city corporation 
 whose duty it was to remove it. Sup. Ct, 1872, 
 Durkin v. City of Troy, 61 Barb. 437. 
 
 202. Esetaption by contract. In an ac- 
 tion for injuries received by plaintiff in passing 
 the tender of an engine from wood negligently 
 thrown therefrom, it is a good defense that the 
 plaintiff had shipped a car load of sheep upon 
 the train under a contract providing for tlie 
 sending of a person in charge of the stock, who 
 should be carried free of charge, and should 
 take all risks of personal injury from whatever 
 cause, whether of negligence of the defendant, 
 its agents, or otherwise, in pursuance of which 
 he had accepted a free pass, intending to accom- 
 pany the stock himself ; and it is not necessary 
 that he should have been actually riding. Ct. 
 App., 1872, Pouchef v. New York Central R. R. 
 Co., 49 N. Y. (4 Sick.) 263. 
 
 203. Inevitable accident. A party can- 
 not avail himself of this defense, who, by his 
 own negligence, has placed himself in a position 
 which renders the accident inevitable. Ct. App., 
 1870, Austin v. N. J. Steamboat Co., 43 N. Y. 
 (4 Hand,) 75. 
 
 204. Trespass. Where a dangerous machine, 
 upon the premises of the owner but close to the 
 line of the sidewalk, was negligently left in 
 operation and unguarded, the fact that the plain- 
 tiff's intestate was technically a trespasser on 
 such premises when killed by the machine, is 
 not a sufficient defense to an action therefor. 
 Brooklyn City Ct., 1874, MuUaneu v. Spence, 16 
 Abb. N. S. 319. 
 
 206. Want of care to effect cure. A 
 person injured through the negligence of another 
 ls bound to use ordinary care to cure and restore 
 himself. He is bound to act in good faith and 
 to resort to such methods reasonably within his 
 reach as will make his damage as small as he 
 can ; but he is not responsible for a mistake 
 made when acting in good faith and under the 
 advice of a competent physician, and the wrong 
 doer will not be shielded thereby. Com. App., 
 1874, Lyons v. Erie Ry. Co., 57 N. Y. (12 Sick.) 
 489. 
 
 HI. EviDBNCE ; PBACTIOB. 
 
 206. Presumption. In an action for negli- 
 gence there can be no presumption that the 
 plaintiff was free from fault, but he must show, 
 as part of his case, either from the circumstances 
 of the case or by evidence directly establishing 
 the fact, that he did not contribute to the injury 
 by his own negligence. Com. App., 1871, Warner 
 
 V. New York Central R. R. Co., 44 N. Y. (5 
 Hand,) 65 ; Eev'g S. C, 45 Barb. 299. 
 
 207. Burden of proof. A party seeking to 
 recover damages for an injury caused by negli- 
 gence, must prove not only that the injury was 
 the result of the negligence of the defendant, 
 but that he was free from any negligence con- 
 tributing thereto ; that is, that he exercised 
 such care and vigilance to avoid danger as pru- 
 dent persons, conscious of the danger to which 
 they may be exposed, usually exercise under 
 like circumstances. Ct. App., 1870, Beisegel v. 
 N. Y. Central R. R. Co., 14 Abb. N. S. 29 ; 
 S. C, before, 33 Barb. 429 ; 34 N. Y. (7 Xiff.) 
 622; 40 N.Y. (1 Hand,) 9. 
 
 208. The burden of proof of negligence, in 
 an action therefor, rests upon the plaintiff ; but 
 where the accident sued for is one which, in the 
 ordinary course of events would not have hap- 
 pened but for the want of proper care on the part 
 of the defendant, it is incumbent upon him to 
 show that he had taken such precautions as pru- 
 dence would dictate ; and his failure to furnish 
 the proof, when, if it existed, it would be in his 
 power, may subject liim to the inference that 
 such precautions were omitted. Ct. App., 1872, 
 J. Russell Manf. Company v. N. H. Steamboat 
 Co., 50 N. Y. (5 Sick.) 121. 
 
 209. Evidence ' of intozication. In an 
 action against a railroad company for negli- 
 gence, predicated upon the omission of a flag- 
 man, usually stationed at a highway crossing, to 
 give the customary signal of an approaching 
 train, evidence of his intoxication on that and 
 previous occasions, and that his intemperate 
 habits were known to tlie officers of the com- 
 pany, is inadmissible. Htrai, C, dissents. Com. 
 App., 1871, Wai-ner v. New York Central R. R. 
 Co., 44 N. Y. (5 Hand,) 465 ; Rev'g S. C, 45 
 Barb. 299. 
 
 210. Nonsuit. In an action under the statute 
 for the negligent killing of plaintiff's in- 
 testate while a passenger on defendant's road, 
 where the evidence shows conclusively that the 
 defendant was not guilty of any negligence or 
 want of proper care, but that the misplacement 
 of the switch which caused the accident was the 
 act of some evil disposed person, not connected 
 with the road, shortly preceding the arrival of 
 the train in the night time, a nonsuit was prop- 
 erly granted at the circuit. Sup. Ct., 1873, 
 Keeley v. Erie Railway Co., 47 How. 256. 
 
 211. In an action by the administrator of an 
 infant of about three years of age, under the 
 statute of 1847, amended in 1849 (4 Edm. Stats. 
 426-7), for the pecuniary injuries suffered by 
 the next of kin by reason of his death, alleged 
 to have been caused by defendant's negligence, 
 it is within the province of the jury, having be- 
 fore them all the circumstances and the condi- 
 tion of the parties, to form an estimate of the 
 damages, present and prospective, to the next 
 of kin ; and the court would not be justified, in 
 the absence of proof of special pecuniary dam- 
 age, to award a non-suit or direct a verdict for 
 nominal damages only. Ct. App., 1872, 1/d v. 
 Forty-Second Street, etc. R. R. Co., 47 N. Y. (2 
 Sick.) 317. 
 
 212. Where the defendant left a steam eleva- 
 tor, in his coal yard near the sidewalk, in oper- 
 ation and unguarded^and the sliding door by 
 which it was usually shut off from the street 
 open, and a child who approached it was caught 
 and crushed by the descending car ; — Held, in 
 the administrator's action to recover damages, 
 that the question of defendant's negligence 
 should be submitted to the jury, and it was er- 
 
502 
 
 NEGOTIABLE PAPER— NEW TRIAL. 
 
 ror to grant a non-suit. Brooklyn City Ct 
 1874, Mullaney v. Spence, 15 Abb. N. S. 319. 
 
 213. It appearing in sueli action tliat the 
 child's parents lived in a quiet part of the city 
 where few veliicles passed, and that although 
 the mother permitted the child to play upon 
 her steps with other children, she forbade his 
 going away from there, and watched him as her 
 work permitted, — Held, that the qiiestion of 
 contributory negligence on her part should be 
 submitted to the jury. lb. 
 
 214. Question for jury. Where the evi- 
 dence is conflicting, it is error to take from the 
 jury the question of negligence and decide it as 
 matter of law. N. Y. Supr. Ct., 1870, Bellon v. 
 Baxter, 2 Sweeny, 339. 
 
 215. In an action against a municipal cor- 
 poration by a person injured by tlie fall of an 
 awning, where it appeared tliat the awning was 
 erected by a competent mechanic and secured 
 in the usual, though not the safest way, that it 
 had, shortly before the accident, been injured 
 by a Are engine running into it, but was re- 
 paired by a competent mechanic who did what 
 he. supposed necessary for its protection, and 
 that tlie part so repaired gave way under an un- 
 usually lieavy body of snow accumulated upon 
 It ; — Held, that, wliatever may be the extent 
 and measure of the duties and corresponding 
 obligations and liabilities of city governments 
 in respect to such structures in general, the 
 question of negligence under the particular cir- 
 cumstances of the case should have been sub- 
 mitted to the jury. Ct. App., 1872, Hume t. 
 Mayor, etc. of the city of New York, 47 N. Y. (2 
 Sick.) 639. 
 
 216. In an action for a negligent collision 
 with plaintiff's barge, it appeared tliat, although 
 in tow in the rear of a line of canal boats, and 
 about 10 rods distant from the hindmost, she 
 carried lights indicating that she was at anchor. 
 The night, liowever, was light, and those on 
 board tlie defendant's schooner could see the 
 steamer and canal boats and passed close by tlie 
 latter, and they could also see the barge in the 
 rear; but after passing the canal boats, she, 
 without any apparent necessity, changed her 
 course and attempted to pass between them and 
 the barge, colliding with the latter ; — Held, that 
 the question of contributory negligence was for 
 the jury, and the granting of a non-suit was er- 
 ror. Ct. App., 1872, SUliman v. Lewis, 49 N. Y. 
 (4 Sick.) 379. 
 
 217. Where a passenger upon a raift-oad is 
 put by the company to her election whether to 
 be carried by the station to which she has pur- 
 chased a ticket and at which she wished to stop, 
 or to alight while the train is moving slowly, 
 and is injured while attempting the latter, it is 
 a proper question for the jury whether or not 
 this was, under the circumstances, an act of or- 
 dinary care and prudence, and the court cannot 
 determine, as matter of law, that it was negli- 
 gence. Ct. App., 1872, Filer v. New York Central 
 R. R. Co., 49 N. Y. (4 Sick.) 47. 
 
 218. In an action against a railroad company 
 to recover damages for the death of a child, two 
 years of age, alleged to have been caused by 
 defendant's negligence, proof that just prior to 
 the accident the child was playing in the house 
 where his mother was working, and that she 
 having occasion to go olit for a few moments 
 left the door open, and the child strayed unper- 
 ceived by her upon the railroad track where it 
 had never been but once before, and was killed 
 by the engine, does not show contributory neg- 
 ligenco, as a matter of law, on the part of the 
 
 plaintiff, but It was a question- for the jury. Ct, 
 App., 1874, Prendeqast v. N. Y. Cent, and Hud. 
 Riv. R. R. Co., 58 N. Y. (13 Sick.) 662. 
 
 219. In a case where it appeared that the 
 plaintiff, while crossing a railroad at a street 
 crossing where there were five parallel tracks, 
 was struck by an engine and injured, — that 
 there was a space of five feet between the track 
 where he was struck and the next one, on which 
 he might have stood and looked up and down 
 the track far enough to see the approaching 
 train, but that before reaching that five foot 
 space the view had been obstructed by standing 
 cars, and that plaintiff in crossing it was look- 
 ing up and down the track, and happened to be 
 looking in the opposite direction when struck, 
 and that in consequence of the noise made by 
 another train he could not hear the train so ap- 
 proaching, — Held, that the court could not say 
 that he was guilty of negligence in not standing 
 upon that five foot space and looking both up 
 and down the track before attempting to cross, 
 but the question of contributory negligence be- 
 longed to the jury. Ct. App., 1870, Beisegel v. 
 N. Y. Cent. R. R. Co., 14 Abb. N. S. 29 ; S. C, 
 before, 33 Barb. 429; 34 N. Y. (7 Tiff.) 622; 40 
 N. Y. (1 Hand,) 9. 
 
 NEGOTIABLE PAPER. 
 See Bills and notes. 
 
 NEW PEOMISE. 
 See Limitation op actions. 
 
 NEW TRIAL. 
 
 I. Gkounds for. 
 II. Pbaotice 
 
 602 
 606 
 
 I. Grounds for. 
 
 1. In equity cases. Although courts of 
 equity will, in proper cases, grant a new trial in 
 an action, the judgment in which binds the 
 plaintiff as to his inheritance, yet it will not do 
 so where the judgment, at most, merely sus- 
 pends his possession of a portion of the estate 
 for the life of the defendant, as, in an action by 
 an heir-at-law against the widow of his deceased 
 father, to have the marriage declared void on 
 account of the lunacy of the father at the time 
 of the marriage. Sup. Ct., 1875, Banker v. Bank- 
 er, 4 Hun, 259. 
 
 2. The unsuccessful party in equity never 
 had the absolute right to a new trial, but it was 
 in the discretion of the court, and was granted 
 whenever the ends of justice required it. Ct. 
 App., 1871, Marvin v. Marvin, 11 Abb. N. S. 102. 
 
 8. An action by an heir to test the validity of 
 a devise of real estate, is not an action of eject- 
 ment, and the unsuccessful party therein is not 
 entitled to a new trial as a matter of right. lb. 
 
 4. In general. Courts will grant a new trial, 
 1st. In a case where evidence, material to the 
 verdict, has been improperly received or reject- 
 ed ; 2d. If the referee has misapplied the law ; 
 3d. If he is pecuniarily or otherwise interested 
 in the litigation, he is disabled ; 4th. If the suc- 
 cessful party has been guilty of gross miscon- 
 
NEW TRIAL. 
 
 503 
 
 duct, or a mistake has been made in entering 
 judgment ; 6th. If the damages awarded are 
 glaringly excessive, or palpably insufficient; 
 and 6th. If the verdict or report was obtained 
 by surprise, or is manifestly against the weight 
 of evidence and perverse. N. Y. Supr. Ct., 1872, 
 Wehrum v. Kuhn, 34 N. Y. Supr. (2 J. & Sp.) 
 336. 
 
 5. A new trial will not be granted where, upon 
 the facts, the applicant could not, at most, re- 
 cover more than nominal damages. N. Y. Supr. 
 Ct., 1874, Reading v. Gray, 37 N. Y. Supr. (6 J. 
 & Sp.) 79. 
 
 6. A new trial will be granted for errors com- 
 mitted on the trial, either in the admission of 
 
 ■ improper testimony, or in the charge of the 
 judge, which manifestly tended to prejudice the 
 defeated party, although no exceptions were 
 taken thereto. N. Y. C. P., 1872, Wehle v. Havi- 
 land, 42 How. 399 ; S. C, 4 Daly, 560. 
 
 7. Commuiiication between judge and 
 jury. A communication between the judge and 
 jury after retirement of the latter, without the 
 knowledge of a party, is a violation of the right 
 of such party to have the trial of his cause con- 
 ducted in open court with an opportunity to be 
 present ; and such right being a substantial one, 
 its infringement is sufficient ground for a new 
 trial, without proof that tlie communication was 
 in j urious to the party moving. Com. App., 1873, 
 Waiertown Bank and Loan Co. \'. Mix, 51 N. Y. 
 (6 Sick.) 658. 
 
 8. Deafness of juror. An affidavit of a juror 
 who has joined in the verdict, that he could not 
 hear the evidence on account of deafness, can- 
 not be received, on a motion for a new trial, to 
 impeach such verdict. N. Y. C. P., Sp. T., 1876, 
 Messenger v. Fourth National Bank, 48 How. 642. 
 
 9. Iizcessive damages. The court cannot, 
 in an action of tort, reduce the verdict of a jury 
 because it is deemed excessive ; but can only set 
 it aside and order a new trial. Sup. Ct., 1874, 
 Sloan V. N. Y. Cent. ^ Hud. Riv. R. R. Co., 1 
 Hun, 640. 
 
 10. In an action to recover damages for the 
 forcible expulsion of the plaintiff from the defend- 
 ants' car by their conductor, wiiere upon the 
 second trial the jury were charged in accordance 
 with the rule of damages laid down by the Court 
 of Appeals on reversing the former judgment, 
 that they should only give compensatory dam- 
 ages, including compensation for the injury to 
 plaintiff's feelings, and they gave a verdict for 
 three times the amount of the previous verdict, 
 — Held, that the amount was excessive and the 
 verdict should be set aside and a new trial 
 granted. N. Y. Supr. Ct., Sp. T., 1874, Hamil- 
 ton V. Third Avenue R. R. Co., 48 How. 50. 
 
 11. In an action to recover back money paid to 
 a factor to obtain the release of goods on which 
 he claimed a lien, if the referee erroneously 
 finds in favor of the plaintiff for the whole sum 
 so paid, -when the evidence shows that the de- 
 fendant was entitled to a part thereof, that is 
 sufficient cause for granting a new trial. Ct. 
 App., 1874, Briqgs v. Boyd, 66 N. Y. 11 Sick.) 
 289 ; Aff 'g S. 6., 66 Barb. 197. 
 
 12. Where the amount of the verdict is clearly 
 not justified by the evidence, but it appears that 
 the jury have fixed the value of the property in 
 suit upon a pape^ not in evidence, and far above 
 its true value, it should be set aside and a new 
 trial granted. N. Y. Supr. Ct., 1873, Schneider 
 V. McCabe, 86 N. Y. Supr. (4 J. & Sp.) 83. 
 
 13. In an action to recover the possession of 
 personal property with damages for its deten- 
 tion, where a greater sum than interest on the 
 
 value of the property during its detention is 
 given as damages, and there is no evidence 
 showing that the use was worth more than the 
 interest, or that the property depreciated, the ver- 
 dict should be set aside for excessive damages 
 and a new trial ordered. N. Y. Supr. Ct., 1875, 
 Keep V. Kaufman, 38 N. Y. Supr. (6 J. & Sp.) 476. 
 
 14. Insufficient damages. Where the evi- 
 dence shows that the plaintiff if entitled to any 
 verdict at all, was damaged to a much larger 
 amount than the jury have given him by (Sieir 
 verdict, a new trial should be granted. N. Y. 
 Supr. Ct., 1873, Loughy. Romaine, 36 N. Y. Supr. 
 (4J..&Sp.) 332. 
 
 16. If such verdict was also against the 
 charge of the judge, the motion should be grant- 
 ed witli'out pay ment of costs by the applicant. lb. 
 
 16. A verdict for the plaintiff will not be set 
 aside and a new trial granted on appeal by the 
 defendant on the ground that the plaintiff was 
 entitled to recover a larger sum, if anything at 
 all, on the evidence, especially, when a recoup- 
 ment or counterclaim was pleaded, and evidence 
 given to support it, and the jury were charged, 
 if they found it in favor of the defendant, to de- 
 duct it from plaintiff's claim. N. Y. Supr. Ct., 
 1871, Harton v. Bloom, 33 N. Y. Supr. (1 J. & Sp.) 
 116. ^ 
 
 17. Unless the verdict shows that the jury 
 either wholly disregarded the evidence, or mis- 
 apprehended its effect, or overlooked some impor- 
 tant fact, or must necessarily have found some 
 fact in favor of defendant wholly inconsistent 
 with any verdict for plaintiff, the verdict will 
 not be set aside for that cause. lb. 
 
 18. Admission of improper evidence. 
 The admission of evidence which has no bearing 
 on the issue involved, and which cannot liave 
 influenced the verdict of the jurj-, though error, 
 is not such as to call for a reversal and new 
 trial. N. Y. Supr. Ct., 1870, Ahem v. Standard 
 Life Ins. Co., 2 Sweeny, 441. 
 
 19. Where the evidence admitted was of 
 doubtful or slight materiality, or the preponder- 
 ance of legal evidence was so strongly in favor 
 of the verdict that the appellate court can with 
 reason say that the improper evidence did not in- 
 fluence the result, the error should be disregarded 
 and a new trial refused. Sup. Ct, 1875, Bennett 
 V. Austin, 6 Hun, 536. 
 
 20. Where the court cannot say that the jury 
 were not influenced by the testimony improper- 
 ly admitted, and that it could not by any possi- 
 bility have affected their verdict, a new trial 
 will be ordered. Sup. Ct., 1872, Waring v. U. 
 S. Telegraph Co., 44 How. 69 ; S. C, 4 Daly, 233. 
 
 21. Permitting a question to be asked and 
 answered which is in itself objectionable, but ' 
 not of a kind to mislead the jury, and the 
 answer, except so far as it miglit be stricken 
 out on motion, sustained by other, testimony, 
 is not sufficient ground for granting a new trial. 
 Sup. Ct., 1874, Clark v. Shuman, 2 Hun, 165/. 
 
 22. The admission of incompetent evidence, 
 bearing upon the issues and duly excepted to, 
 constitutes error which entitles the party ex- 
 cepting to a new trial. N. Y. Supr. Ct., 1874, 
 Color Printing Attachment Co, v. Brown, 37 N. Y. 
 Supr. (6J. &Sp.)433. 
 
 23. Thus, the admission, in proof of the value 
 of a machine before the Injury thereto by de- 
 fendant, of testimony of the value of an article 
 of machinery similar to but not exactly like the 
 one in question, and of hearsay testimony as to ^ 
 its value after the injury, is good cause for a 
 new trial. lb. 
 
 24. The admission of evidence of the expenses 
 
504 
 
 NEW TRIAL. 
 
 of the plaintiff's illness, while in Mexico for the 
 purpose of performing the services for tlie value 
 of which the suit was brought, is error, for 
 which a new trial should be granted, notwith- 
 standing the subsequent direction of the judge, 
 at tlie close of the trial, that the jury disregard 
 it, and that it be stricken out. The error is not 
 cured by such a direction given after it had 
 probably had an effect upon the jury. N. Y. 
 Supr. Ct., 1875, O'SuUivan v. Roberts, 39 N. Y. 
 Supr. (7 J. &Sp.)360. 
 
 25. Permitting the jury in such a case to take 
 into consideration the subject and expense of 
 entertainments given by him to men in ofScial 
 positions in order to further the object of his 
 mission, is also error, where there is no proof 
 before them of their value or of wbat they con- 
 sisted, and is ground for a new trial. lb. 
 
 26. InsufBcient evidence. If, in a case 
 where the evidence is conflicting, the defendant 
 omits at the trial to ask a dismissal of the com- 
 plaint on the ground that the evidence is insuffi- 
 cient to justify a verdict against him, or a direc- 
 tion to the jury to find a verdict in his favor, 
 he cannot, after verdict against him, sustain a 
 motion on the judge's minutes for a new trial, 
 on the ground that the evidence was insufficient 
 or that the verdict was contrary to evidence. 
 N. T. Supr. Ct., 1872, Rowe v. Stevens, 44 How. 
 10; S. C, 12 Abb. N. S. 389; 34 N. Y. Supr. (2 
 J. & Sp.) 436. S. P., Hamilton v. Third Aoe. R. 
 R. Co., 44 How. 294; 13 Abb. N. S. 318; 35 N. 
 Y. Supr. (8 J. & Sp.) 118. 
 
 27. An appellate court will not disturb a ver- 
 dict, on the ground that the proof was insuffi- 
 cient, when a motion for a nonsuit was made, if 
 the deficiency was afterward supplied. N. Y. 
 Supr. Ct., 1873, Squire v. Cent. Park, N. ^ E. Riv. 
 R. R. Co., 36 N. Y. Supr. (4 J. & Sp.) 436. 
 
 28. Judgment for cause of action not 
 alleged. K judgment be given for a cause of 
 action not alleged in the complaint, nor included 
 in the issues, though proved on the trial, that is 
 good ground for a new trial. N. Y. Supr. Ct., 
 1874, Fisk Pavement, etc. Co. v. Evans, 37 N. Y. 
 Supr. (5 J. & Sp.) 482 ; AfE'd, S. C, 60 N. Y. (15 
 Sick.) 640. 
 
 29. So held, where the complaint was for 
 goods sold and delivered, and judgment was 
 given not only for the price, but for tlie cost of 
 delivering at a certain place under a subsequent 
 contract. lb. 
 
 80. Judgment not final. In an action in 
 equity to compel the delivery of a deed, which 
 had been deposited as an escrow, where the 
 court having arrived at the conclusion that the 
 plaintiff was not entitled to the relief demanded, 
 , but was entitled to damages for the breach of 
 the contract, ordered that the plaintiff have 
 leave to move to make new parties, and for a 
 reference, or an issue to ascertain the amount 
 of damages, and that in the meantime the cause 
 stand over, and all otiier questions, including 
 that of costs, be reserved, — Held, that the plain- 
 tiffs were entitled to move for a new trial under' 
 sec. 268 of the Code. Sup. Ct., 1873, Stanton v. 
 Miller, 65 Barb. 58. 
 
 31. Jury, misconduct of. It is the duty of 
 the jury to take the law from the court, and if 
 it disregards the instructions given, however 
 erroneous they may be, that is good cause for 
 setting aside the verdict and granting a new 
 trial. Sup. Ct., 1862, Sweetman v. Prince, 62 
 Barb. 256. 
 
 32. Wliere , the jury disregard tlie instruc- 
 tions of the court in allowing a credit to the 
 defendant, only the plaintiff has a right to com- 
 
 plain thereof, and a new trial should not be 
 granted on defendant's motion, for that cause. 
 Com. App., 1873, Wood v. Belden, 64 N. Y. (9 
 Sick.) 658; Rev'g S. C, 59- Barb. 549. 
 
 33. It is a matter within the discretion of the 
 court to permit the jury to take to their room 
 papers which have been given in evidence ; and 
 if, in an action for libel, a party places in their 
 hands a copy of the paper containing the al- 
 leged libel, upon their retiring to consider of 
 their verdict, without the consent of the court 
 or of the opposite counsel, a verdict in his favor 
 may be set aside for irregularity and a new trial 
 granted. Sup. Ct., 1874, Sanderson v. Bowen, 2 
 Hun, 158. 
 
 84. — misdirection of. Leaving the jury, in 
 an action for an assault and battery, upon the 
 whole charge, to consider a charge of false 
 swearing, made by the defendant against the 
 plaintiff, at the time of the assault, as a circum- 
 stance to enhance the damages, is an error for 
 which a new trial may properly be granted. Sup. 
 Ct., 1871, Pulver v. Harris, 61 Barb. 78. 
 
 35. In an action involving the question of a 
 ftaudulent transfer of goods to the plaintiff, 
 where there is evidence which would justify the 
 jury in finding that the intent of the parties was 
 to hinder, delay or defraud the other creditors of 
 the transferor, a refusal to charge that, if that 
 was the object of the parties, the transfer was 
 void, even tliough there was an indebtedness to 
 the plaintiff, or a payment of money by him on 
 the purchase, is calculated to mislead the jury, 
 and is error for which a new trial should be 
 granted ; and the error is not cured by so charg- 
 ing as in effect to submit to the jury the bona 
 fides of the plaintiff's title. N. Y. Supr. Ct, 1872, 
 Cohen v. Kelly, 35 N. Y. Supr. (3 J. & Sp.) 42. 
 
 86. Newly discovered evidence, to be 
 good ground for a new trial, must not merely go 
 to impeach the credit of a witness examined on 
 the trial, but it must relate to some new fact 
 upon which evidence was not given at the trial, 
 and be so material and important in its nature 
 as to induce the belief that if proved to the sat- 
 isfaction of the jury it would control their ver- 
 dict. Negative evidence, or that which is cumu- 
 lative merely, is not sufficient. N. Y. Supr. Ct., 
 Sp. T., 1872, Knoop y. Kammerer, 44 How. 449. 
 
 37. After discovered evidence, though mate- 
 rial, is not ground for a new trial, unless discov- 
 ered after the trial. N. Y. C. P., Sp. T., 1875, 
 Messenger v. Fourth National Bank, 48 How. 542. 
 
 88. The testimony on which the motion is 
 based must have been discovered since the for- 
 mer trial, and be such as could not with reason- 
 able care have been obtained before ; must be 
 material to the issue ; must go to the merits of 
 the case, and not to impeach the character of 
 former witnesses ; must not be cumulative, the 
 facts must be strong, and the party offering free 
 from laches. N. Y. Su'pr. Ct., 1871, Raphaelsky 
 V. Lynch, 48 How. 157 ; S. C, 12 Abb. N. S. 224 ; 
 84 N. Y. Supr. (2 J. & Sp.) 31. 
 
 89. Thus,, a new trial should be granted when 
 the newly discovered evidence shows that the 
 judgment was obtained by conspiracy and per- 
 jury, which fact only came to light through a 
 subsequent quarrel between the conspirators, and 
 the motion was made without delay. lb. 
 
 40. A new trial should not be granted on the 
 ground of newly discovered evidence, if such 
 evidence is merely cumulative, or if the evidence 
 sought to be contradicted by it was immaterial. 
 N. Y. Supr. Ct., 1872, Ritter v. Phillips, 34 N.Y. 
 Supr. (2 J. & Sp.) 289 ; S. C, again, 85 N. Y. 
 Supr. (3 J. & Sp.) 388. 
 
NEW TRIAL. 
 
 505 
 
 41. A motion for a new trial on the ground of 
 newly discovered evidence should be denied, if 
 such evidence is not so decisive in character 
 that, to a reasonable certainty, it would produce 
 an opposite result on another trial. Sup. Ct., 
 1874, Darhee v. Elwood, 2 Hun, 599. 
 
 42. Although the moving affidavits make out 
 a prima facie case, yet if they are neutralized by 
 opposiiig affidavits, and the credibility of the af- 
 fiants for the moving party is materially im- 
 paired by retractions, explanations and qualifica- 
 tions made by some of them, and by proof that 
 several of them cannot be found at the places of 
 residence given by them ; and that others were 
 hired to make affidavits which were untrue ; and 
 that large inducements were held out for the 
 discovery and procurance of testimony, the mo- 
 tion should be denied. N. Y. Supr.Ct., 1875, 
 Chapman v. O'Brien, 89 N. Y. Supr. (7 J & Sp.) 
 244. 
 
 43. Perjury. A motion by a defendant for a 
 new trial, based upon an affidavit, made by one 
 who had given material evidence for the plain- 
 tiff, to the effect that he had committed perjury 
 in so testifying, may properly be refused ; the 
 affidavit of such a person not being entitled to 
 much credit. Sup. Ct., 1874, People ex rel. 
 Stemmler v. McGuire, 2 Hun, 269 ; Aff'd,-60 N. Y. 
 (15 Sick.) 640. 
 
 44. Surprise. Where plaintiff was led by 
 statements of defendant to believe that no se- 
 rious defense would be interposed at the trial, 
 and relying thereon failed to summon a material 
 witness, a new trial was properly granted on the 
 ground of surprise. Sup. Ct., 1875, Continental 
 Nat. Bk. V. Adams, 4 Hun, 666. 
 
 45. The fact that one of the attorneys and 
 counsel for the defendant left during the pen- 
 dency of the trial, to attend the funeral of his 
 father, so that the party was deprived of his ser- 
 vices, or that the remaining counsel was labor- 
 ing under a nervous affection, and was at the 
 time under medical treatment so that he could 
 not efficiently conduct the trial, is not a surprise 
 for which a new trial will be granted ; especially 
 where it appears that no suggestion of the fact 
 was made at the trial, and that such party was 
 sworn as a witness in his own behalf. Sup. Ct., 
 Sp. T., 1872, Smith V. Osbom, 45 How. 351. 
 
 46. A plaintiff cannot have a new trial on ac- 
 count of surprise at the testimony given by a 
 witness. He should take a non-suit, or ask 
 leave to withdraw a juror and let the case stand 
 over for a future day. N, Y. C. P., Sp. T., 1875, 
 Messenger v. Fourth National Bank, 48 How. 542. 
 
 47. By proceeding witli his case and taking his 
 chances for a verdict, he forfeits his right to -a 
 new trial on the ground of surprise. lb. 
 
 48. It cannot be said that a party is surprised 
 by any evidence on the trial, if he is then pre- 
 pared to fully meet and rebut it. N. Y. Supr. 
 Ct., 1872, Ritter v. Phillips, 34 N. Y. Supr. (2 J. & 
 Sp.) 289 ; S. C, 35 N. Y. Supr. (3 J. & Sp.) 388. 
 
 49. Where the defendants relied for tlieir de- 
 fense upon a composition deed executed in Eng-* 
 land, and it appeared upon the trial that the 
 party who executed it left England before the 
 date of the deed, and consequently that it was 
 not filed in the registrar's ofBce within the time 
 required by law after its execution ; — Held that 
 a new trial should not be granted on the ground 
 of surprise, as by a reasonable degree of dili- 
 gence they might have discovered the discrep- 
 ancy and had an opportunity to explain it. Sup. 
 Ct., 1874, Chamberlain v. Lindsay, 1 Hun, 231. 
 
 50. Where the attorneys for the successful 
 party, before the trial, by their acts and replies 
 
 to questions mislead the counsel for the other 
 party and induce him to believe that the legal 
 effect of the deed alone would be the subject of 
 contest, and that no objections existed as to its 
 execution, and obtain their judgment on account 
 of such objections, a new trial should be grant- 
 ed on the ground of surprise. lb. 
 
 51. Variance. A defendant cannot avail 
 himself of the objection that the recovery was 
 upon allegations not contained in the complaint, 
 unless he takes it before judgment. In order to 
 entitle him to a new trial for a variance, it must 
 appear that the cause of action was unproved in 
 its entire scope. Sup. Ct., 1871, Updike v. Abel, 
 60 Barb. 15. 
 
 52. Verdict against evidence. The gen- 
 eral rule in penal actions and in actions for libel 
 and slander, and in some other actions of tort, 
 that a verdict for the defendant will not be set 
 aside as against evidence where the plaintiff has 
 not sustained more than nominal damages, may 
 properly be applied to actions for assault and 
 battery, where it does not appear that the plain- 
 tiff was wholly blameless, or has been consid- 
 erably injured or grossly insulted. Sup. Ct., 
 Cir., 1874, Chase v. Bassett, 15 Abb. N. S. 293. 
 
 53. It is the duty of the General Term to exam- 
 ine the evidence taken on the trial at Special 
 Term, and it has power to pass upon the weight 
 of conflicting evidence, and to reverse the judg- 
 ment and grant a new trial, if it finds the weight 
 of evidence against it. Sup. Ct., 1875, Parsons 
 V. Brovm, 5 Hun, 112. 
 
 54. A verdict found upon conflicting evidence, 
 sustaining the contract claimed by the plaintiff, 
 though of a somewhat unusual character, will 
 not be set aside and a new trial granted as being 
 against evidence, where the testimony is not so 
 clearly in favor of the defendant as to indicate 
 bias, partiality or corruption, on the part of the 
 jury. Sup. Ct., Sp. T., 1872, Emberson v. Dean, 
 46 How. 236. 
 
 55. The verdict of a jury upon the trial of a 
 feigned issue as to the valid execution of a will, 
 found on conflicting evidence, will not be dis- 
 turbed and a new trial granted on the ground 
 that it is against evidence, if no error .of law 
 was committed by the court. Sup. Ct., 1872, 
 McKinley v. Lamb, 64 Barb. 199. 
 
 56. A new trial will not be granted, on the 
 ground that the verdict is against the weight of 
 evidence, unless it is entirely so. Where the 
 evidence was conflicting, and the character and 
 credit of the witnesses unquestioned, the verdict 
 cannot be set aside, unless the case itself pre- 
 sents the evidence that the jury must have been 
 influenced by passion, prejudice, mistake or 
 corruption. Sup. Ct., 1871, Morss v. Sherrill, 63 
 Barb. 21. 
 
 57. A new trial will not be granted merely 
 because the court might have come to a different 
 conclusion from that arrived at by the jury on 
 the evidence, unless the finding is without evi- 
 dence, or so decidedly against the weight of 
 evidence as to indicate either partiality, corrup- 
 tion or gross ignorance. Sup. Ct., 1865, Beck- 
 with V. N. Y. Cent. R. R. Co., 64 Barb. 299. 
 
 58. In an action by a married woman to re- 
 cover possession of chattels levied on as the 
 property of her husband, evidence that she 
 bought the property is not conclusive of her 
 ownership, and if tliere was sufficient evidence 
 to require tlie verdict of the jury as to whether 
 her husband was not in fact the true owner, and 
 they decided against her, a new trial may prop- 
 erly be denied. N. Y. Supr. Ct., 1875, Pollock 
 T. Brennan, 89 N. Y. Supr. (7 J. & Sp.) 477. 
 
506 
 
 NEW YORK CITY AND COUNTY. 
 
 59" This is especially proper where the plain- 
 tiff let the case go to the jury without calling 
 the attention of the court to her claim that the 
 weight of evidence, as matter of law, called for 
 a verdict in her favor. lb. 
 
 60. In an action against a civil engineer for 
 the price of steam boilers furnished for vessels 
 building by him for W, where the evidence 
 showed that the plaintiffs had often received 
 orders from the defendant as agent, on which 
 they allowed him commissions, and that they 
 had given him a receipt for a payment on these 
 boilers as being " on account of W," to whom 
 they had them charged ; and the only conflict of 
 evidence was as to whether he had disclosed the 
 name of W, when ordering the boilers, and 
 whether the bill was rendered to W, at his 
 request ; — Held, that a verdict for the plaintiffs 
 was against the clear weight of evidence, and a 
 new trial should be granted on payment of costs. 
 Sup. Ct., 1873, Murphy v. Haswelt, 65 Barb. 380. 
 
 H. Practicb, 
 
 61. Motion at Special Term. The Code in 
 requiring a motion for a new trial upon a case 
 and exceptions before judgment to be first made 
 at the Special Term, contemplates a real and not 
 a mere formal review there, and it is error to 
 deny the motion pro forma, merely to give a 
 party an opportunity to appeal. Sup. Ct., 1875, 
 Cooh V. Allen, 5 Hun, 561. 
 
 62. In a case where, at the close of the evi- 
 dence, the court directed a verdict for the plain- 
 tiff, but ordered the action reserved for further 
 consideration, with leave to defendant to move 
 for a new trial, on a case made, — Held, that a 
 motion for a new trial made on notice at Special 
 Term before the same judge, upon a case made 
 and settled in the usual form, before any further 
 action of the court upon the verdict, was prema- 
 ture, the trial not being then finished. Sup. Ct., 
 Sp. T., 1871, Rousso V. Vontrin, 41 How. 8. 
 
 63. After judgment. A motion for a new 
 trial on the ground of surprise and newly dis- 
 covered evidence, may be entertained at Spe- 
 cial Term, after the entry of judgment. Ct. 
 App., 1871, Tracey v. Altmyer, 46 N. Y. (1 Sick.) 
 598. S. P. Blydenburg v. Johnson, 9 Abb. N. S. 
 459. 
 
 64. Under the provisions of sec. 265 of the 
 Code, as well as under ch. 128, Laws of 1832, a 
 motion for a new trial, whether upon a ease, or 
 upon exceptions to the rulings or cliarge of the 
 court, or on the ground of insufficient evidence, 
 or surprise, or newly discovered evidence, can 
 be made and heard at Special Term, either before 
 or after the entry of judgment. Bakboiik, J., 
 dissents. N. Y. Supr. Ct., 1873, Luddington v. 
 Miller, 36 N. Y. Supr. (4 J. & Sp.) 1 ; Affd, id. 
 570. 
 
 65. The practice of allowing motions for new, 
 trials, on the ground of newly discovered evi- 
 dence after judgment, established by ch. 12, 
 Laws of 1832, is continued in force by sec. 389 f 
 of the Code of 1848, and sec. 469 of the present 
 Code. The cases on this subject reviewed at 
 large. N. Y. Supr. Ct., 1871, Saphaelsky v. Lynch, 
 43 How. 157; S. C, 12 Abb. N. S. 224; 34 N. Y. 
 Supr. (2 J. & Sp.) 31. 
 
 66. The Special Term may, on motion, vacate 
 an order sending a cause to be heard in the first 
 instance at General Term, and permit the losing 
 party to move at once upon a ease for a new 
 trial; and the motion may be heard as well 
 without vacating such order. No order made 
 by a judge upon the trial can deprive a party of 
 
 his right to be heard against a verdict on a case 
 at Special Term. Com. App., 1873, Post v. Ha- 
 thorn, 54 N. Y. (9 Sick.) 147. 
 
 67. After interlocutory judgment. A 
 motion for a new trial, at the General Term, 
 under sec. 268 of the Code, in a case where an 
 interlocutory judgment has been entered deter- 
 mining the rights of the parties and providing 
 for a reference, should be made before proceed- 
 ing with the reference. Sup. Ct., 1874, Church 
 V. Kidd, 3 Hun, 254. 
 
 68. After trial of issues under rule 40. It 
 seems that when a judge allows a motion for a 
 new trial, in a case wherein issues framed under 
 rule 40 have been tried by a jury, to be made 
 before him on his minutes; without specifically 
 directing it to be so made, but without objection 
 by the adverse party, that is equivalent to direct- 
 ing it to be so made and satisfies the rule. N. Y. 
 Supr. Ct., 1874, Keck v. Warder, 37 N. Y. Supr. 
 (o J. & Sp.) 219. 
 
 69. Laches. A defendant against whom a 
 judgment was entered in June, 1869, and who 
 moved for a new trial in August, 1870, on the 
 grounds of newly discovered evidence, and of 
 falsehood, fraud and perjury in procuring the 
 judgment, stating in his aflSdavit that he did not 
 become possessed of the facts on which he 
 moved until March, 1870, the delay not being 
 excused, — Held, guilty of laches, tor which his 
 motion should have been denied. N. Y. Supr. 
 Ct., 1872, Woolfv. Jacobs, 45 How. 403; S. C, 
 34 N. Y. Supr. (2 J. & Sp.) 509. 
 
 70. Motion papers. Affidavits used to 
 support an application for a new trial on the 
 ground of newly discovered evidence, must show 
 the existence of other evidence, not available 
 by the use of reasonable diligence on the trial 
 already had, which if then given would prob- 
 ably have produced a more favorable result to 
 the applicant. Sup. Ct., 1874, People ex rel. 
 Stemmler v. McGuire, 2 Hun, 269; Aff'd, S. C, 
 60 N. Y. (15 Sick.) 640. 
 
 71. A new trial ought not to be granted upon 
 affidavits stating declarations and admissions 
 made by the plaintiff to the deponents, tending 
 to show that his judgment was obtained by 
 fraud and perjury, when such affidavits are 
 improbable in themselves, and especially when 
 it appears that the deponents had sworn to a 
 different state of facts in another suit. N. Y. 
 Supr. Ct., 1872, Woolf v. Jacobs, 45 How. 403 ; 
 S. C, 34 N. Y. Supr. (2 J. & Sp.) 509. 
 
 72. Affidavits of jurors cannot be heard on a 
 motion for a new trial, to impeach their verdict 
 by showing misconduct on the part of the jurors 
 or constable having them in charge, or of a 
 party in conversing with them. Ct. App., 1875, 
 
 Williams v. Montgomery, 60 N. Y. (16 Sick.) 648. 
 
 73. Terms. Where a new trial is granted on 
 the ground that the verdict or report is against 
 the weight pf evidence, it should be upon pay- 
 ment of costs by the moving party. Sup. Ct., 
 1872, Voorhees v. National Citizens Bank, 15 Abb. 
 N. S. 13. S. P., Bailey v. Park, 5 Hun, 41. 
 
 NEW YORK CITY AND COJJNTY. 
 I. In general 507 
 
 n. OrPICEKS, AND THEIR POWERS AND 
 
 SALARIES 507 
 
 III. Contracts ; Finances 509 
 
 IV. Lands underwater; perries, piers, 
 
 PILOTAGE 512 
 
 "V. Streets, pares, sewers 513 
 
NEW YORK CITY AND COUNTY. 
 
 507 
 
 VI. Local assessments 515 
 
 VII. Liabilities ov city 520 
 
 If In eSNERAL. 
 
 1. Appraisement of city property. An 
 
 appraisement of real estate belonging to the city 
 is authorized by law only : 1. When occasion 
 arises to settle rent on the renewal of leases, or 
 the value of buildings on the expiration of a 
 lease which provides for such appraisal, and in 
 such cases the comptroller is to ?ippoint the 
 appraisers ; 2. For the purpose of a sale, pursu- 
 ant to sees. 36, 37 of the revised ordinances, by 
 the commissioners of the sinking fund ; in which 
 case the appraisement must be made within one 
 month before the sale, by persons specially 
 appointed for that purpose. Sup. Ct., 1875, 
 Muller V. Mayor, etc. o/N- Y., 5 Hun, 282. Kev'd 
 by Ct. App. 
 
 2. Under a resolution of the commissioners of 
 the sinking fund, appointing a committee to 
 appraise the value of the real estate belonging 
 to the city and county, " the comptroller first 
 making satisfactory arrangements with them as 
 to their fees," such arrangement as to fees is a 
 condition precedent to their employment, and a 
 mere promise by the comptroller to pay them a 
 liberal compensation is not a compliance there- 
 with ; nor, if it were, could one of the committee 
 recover compensation without first applying to 
 the comptroller, after performing the work, to 
 fix his compensation. lb. 
 
 8. Iiien of buUding department. A lien 
 filed by the building department of the city of 
 New York, pursuant to ch. 625, Laws of 1871, 
 does not take precedence of prior liens and in- 
 cumbraiices upon the premises, but the judg- 
 ment authorized by said act takes effect only 
 from the date of filing notice of lis pendens, and 
 as to priority of lien, stands on a like footing 
 with other judgments. Ct. App., 1873, Mitchell 
 v. Smith, 53 N. Y. (8 Sick.) 413. 
 
 4. The provision of said act that such lien 
 may be enforced, notwithstanding a transfer of 
 the property at any time subsequent to the filing! 
 of said notice, does not include a judicial sale on 
 foreclosure of a prior mortgage. lb. 
 
 5. Police courts. The " act to secure better 
 administration in the police courts of the city of 
 New York" (ch 538, Laws 1873), is constitutional, 
 and even if it were not, the title of justices who 
 presided at the Special Sessions could not be 
 called in question upon a certiorari to review 
 their judgment. Sup. Ct., 1874, Cot/le v. Sherwood, 
 1 Hun, 272. 
 
 6. Waste. The acceptance of a proposal for 
 supplying the city with gas, after allowing a 
 modification not in violation of the spirit of the 
 ordinances, and at a price higher than a subse- 
 quent bid of another gas company for supplying 
 another part of the city, does not bring the city 
 officers within the provisions of ch. 161, Laws 
 1872, so as to make them liable to an action 
 against them to prevent waste of the funds of the 
 city. Sup. Ct., 1874, Zollikoffer v. Havemeyer, 2 
 Hun, 300. 
 
 n. OmCBES, AND THBIK POWEKS AND 8ALABIES. 
 
 7. Assistant alderman. Prior to the pas- 
 sage of ch. 335, Laws of 1878, the power of the 
 legislature over the office of assistant alderman 
 in the city of New York, was unrestricted, ex- 
 cept that it could be filled only by election or 
 appointment in the mode prescribed by sec. 2, 
 art. 10, of the constitution ; and that act, abolish- 
 
 ing the office and transferring its powers and 
 duties to the board of aldermen was constitu- 
 tional and valid. Sup. Ct.,1875, Demarest v. Wick- 
 ham, 4 Hun, 627. 
 
 8. An assistant clerk of the board of alder- 
 men is an officer, but the appointment under a 
 resolution of the common council, passed Feb. 7, 
 1870, of an eighth assistant clerk of the board of 
 aldermen, was not the creation of a new office, 
 within the prohibition of sec. 11, ch. 876, of the 
 Laws' of 1869. Consequently the city is liable for 
 his salarj'. Sup. Ct., 1875, Collins v. Mayor, etc. 
 of New York, 3 Hun, 680. 
 
 9. Assistant clerk of police court. The 
 power to appoint " other clerical help " for 
 police courts is given by sec. 6 eh. 264, Laws 
 1858, to the police justices and not to the super- 
 visors, although they are to pass upon its neces- 
 sity ; and consequently, such an appointment 
 made by them and ratified by the supervisors, is 
 not within the prohibition of see. 3, ch. 882, 
 Laws 1870. Sup. Ct., 1873, Drake v. Mayor, etc. of 
 New York, 7 Lans. 340. 
 
 10. Clerks of district courts of the city 
 of New York are not local officers of the city 
 and county whose salaries can be fixed by the 
 board of estimate, under sec. 97, ch. 335, Laws of 
 
 1873. Sup. Ct, 1875, Whitmore v. Mayor, etc. 
 of New York, 5 Hun, 195. 
 
 11. Court oi&cers. Persons summoned by 
 the sheriff to attend a Circuit Court, or Court of 
 Oyer and Terminer, under 2 Edm. Stats. 300, 
 sees. 83, 84, are pro hac vice, constables for the 
 purpose for which they are called ; and are 
 entitled to their fees as such, if they attend and 
 are ready to perform their duties. . Sup. Ct., 1873, 
 People ex rel. Curry v. Green, 64 Barb. 493. 
 
 12. The act conferring upon the comptroller 
 the power to appoint attendants on the several 
 courts in the city and county of New York, ex- 
 cept police and district courts(ch. 382, Laws 1870), 
 relates only to permanent attendants, and does 
 not supersede the power of the sheriff to sum- 
 mon others, when the court orders or the emer- 
 gency requires it. lb. 
 
 13. The board of education of the city of 
 New York is not a department of the municipal 
 government, and the provisions of the charter 
 of 1873, relative to the payment of moneys from 
 the city treasury do not apply to that board.. 
 Sup. Ct., 1874, People ex rel. Kedian v. Neilson, 
 48 How. 454 ; S. C, 3 Hun, 214. 
 
 14. The several acts relating to that subject 
 contemplate that moneys required for the pur- 
 poses of the board of education, or of the college 
 of the city of New York, shall be drawn from 
 the city treasury only on the draft of the presi- 
 dent of that board, countersigned by its secretary, 
 lb. 
 
 15. The department of public instruc- 
 tion, which, under ch. 574, Laws of 1871, suc- 
 ceeded the board of education, is not in fact a 
 part of the integral government of the municipal 
 corporation ; but the duties of the commissioners 
 are specifically imposed by statute on them, and 
 are to be performed by them as the representar 
 tives of the State government and for its pur- 
 poses. MoNELL, C. J., dissents. N. Y. Supr. Ct., 
 
 1874, Bam v. Mayor, etc. of New York, 37 N. Y. 
 Supr. (5 J. & Sp.) 458. 
 
 16. Although the mayor appoints the commis- 
 sioners, in pursuance of that act, yet the legisla- 
 ture has nowhere, in any form, expressed or 
 intimated any intention to make the mayor or 
 the corporation liable for the negligence or the 
 omissions of that department. lb. 
 
 17. The corporation is therefore, not liable for 
 
508 
 
 NEW YORK CITY AND COUNTY. 
 
 injuries caused by original defects in water 
 arrangements put into a building leased by the 
 board of education for school purposes, nor is it 
 liable therefor by reason of a negligent mainte- 
 nance of the same by the new department. lb. 
 
 18. Department of charities. The acts 
 creating tlie department of charities and correc- 
 tions in the city of New York (ch. 510, Laws 1860, 
 and ch. 137, Laws 1870), confided to the commis- 
 sioners the entire management and government 
 of the department, which included the appoint- 
 ment, control, and direction of all subordinates 
 employed in it. Sup. Ct., 1874, Maximilian t. 
 Mayor, etc. of New York, 2 Hun, 263. Aff'd by 
 Ct. App. 
 
 19. The employes of the department are solely 
 and exclusively the servants and subordinates 
 of the commissioners, as public oflScers, and not 
 of the city ; and the city is not liable for injuries 
 caused by the negligence of the driver of an 
 ambulance, in the employment of the commis- 
 sioners of charities and corrections. lb. 
 
 20. Fire marshal. The act creating the 
 office of Metropolitan fire marshal, giving him 
 power to administer oaths, and declaring false 
 swearing in q,ny proceeding before him to be 
 perjury (ch. 563, Laws of 1868), has not been 
 repealed by any subsequent act on that subject. 
 Sup. Ct., 1875, Harris v. People, 4 Hun, 1. 
 
 21. Where the owner of property burned in a 
 fire, the origin of which is the subject of investiga- 
 tion by the fire marshal, is examined as a witness 
 before him, and any suspicion rests on him, the 
 question of the value of his property claimed by 
 him to have been destroyed becomes a proper 
 subject for investigation. lb. 
 
 22. Janitor. The board of police justices has 
 power, under sec. 12, ch. 538, Laws of 1873, to 
 appoint a janitor of a district police court, he 
 being a necessary attendant of the court ; and 
 the janitor so appointed can maintain an action 
 for his salary. Sup. Ct., 1876, Bergen v. Mayor, 
 etc. of New York, 5 Hun, 243. 
 
 23. A messenger to the president of the 
 board of aldermen of the city is not a public 
 officer within the meaning of sec. 11 of ch. 876, 
 Laws of 1869, by which the creation of any new 
 office, or increase of salary of those then in 
 office or their successors is prohibited. Sup. Ct., 
 1875, Smith y. Mayor, etc. of New York, 4 Hun, 
 644. 
 
 24. President of board. The duration of 
 the term of office of the president of the board 
 of assistant aldermen of the city of New York 
 not being fixed by the law authorizing his elec- 
 tion by the board (sec. 9, art. 2, ch. 137, Laws 
 1870), they had power to prescribe the term for 
 which the person elected should hold it. Sup. 
 Ct., 1874, People ex rel. Wade v. Strack, 1 Hun, 
 96. 
 
 25. The election of a person as president, by 
 a resolution declaring him elected for the year 
 1873, was a valid exercise of that power, and his 
 term was not lengthened or affected by the 
 enactment of sec. 6, art. 11, ch. 335, Laws 1878, 
 fixing the term, and providing how the officer 
 miglit be removed. lb. 
 
 26. Power of board of police. The board 
 of police have power to inquire into the truth 
 of groimds alleged for the removal of a patrol- 
 man, and to remove him from the police force, 
 on finding them well founded ; and their pro- 
 ceedings in respect to such removal cannot be 
 reviewed on certiorari, unless there was a defect, 
 or plain excess, of jurisdiction. Sup. Ct., 1875, 
 People ex rel. Clapp v. Mayor, etc. of New York, 
 5 Hun, 457. 
 
 27. — of board of health. The act fixing 
 the fire test of refined petroleum, kerosene, earth 
 or rock oil, or machinery oil to be kept or stored 
 in New York city, at 100 degrees Fahrenheit 
 (ch. 873, Laws 1866), controls in that city, not- 
 withstanding a different test is fixed by the next 
 preceding chapter ; and the board of health 
 have no power to fix a different test or impose 
 further restrictions. N. Y. C. P., 1870, Metropol- ■ 
 itan Board of Health v. Schmades, 10 Abb. N. S. 
 205 ; S. C, 8 Daly, 282. 
 
 28. The board has no such power under ch. 
 956, Laws 1867, because the ordinances passed 
 by them must be consistent with law. lb. 
 
 29. — of city inspector. A permit to oc- 
 cupy a market stall in the city markets is a mere 
 license, and confers upon the holder no property, 
 right or interest of which the courts can take 
 notice. N. Y. Supr. Ct., Sp. T., 1870, Barry v. 
 Kennedy, 11 Abb. N. S. 421. 
 
 30. The power to grant, withhold or suspend 
 permits to occupy stalls, is vested wholly in the 
 city inspector's department, and is discretionary, 
 subject to certain restrictions, and beyond the 
 control of the courts. lb. 
 
 31. — of commissioners of charities. 
 The commissioners of charities and corrections 
 had no lawful authority in 1871 to borrow money, 
 and thus create a debt against the city ; and the 
 act directing the comptroller to pay back money 
 advanced to any of the departments or commis- 
 sioners of the city (sec. 2, ch. 9, Laws 1872), did 
 not authorize the payment of interest on any 
 such loans. Sup. Ct., 1875, Terah Nat. Bank v. 
 Mayor, etc. of New York, 4 Hun, 429. 
 
 32. — of comptroller. The clerks and offi- 
 cers in the bureau of the city chamberlain were 
 not intended by the legislature to be, and were 
 not in fact included within the power of appoint- 
 ment and dismissal conferred upon the comp- 
 troller by sec. 32 of the charter of 1870. N. Y. 
 Supr. Ct., Sp. T., 1873, Palmer v. Foley, 44 How. 
 308. This question cannot properly be decided 
 in an action to restrain a claimant from intrud- 
 ing into the office of deputy chamberlain. S. C, 
 36 N. Y. Supr. (4 J. & Sp.) 14 ; 45 How. 110. 
 
 33. — of department of docks. The de- 
 partment of docks has power, under sec. 99, ch. 
 137, Laws of 1870, as amended by sec. 6, ch. 
 574, Laws of 1871, to lease the side of a pier and 
 the waters adjacent thereto for a private use, 
 such as that of a bathing establishment, provided 
 such use does not essentially interfere with or 
 obstruct the public use. N. Y. Supr. Ct., 1874, 
 Hoefl V. Seaman, 38 N. Y. Supr. (6 J. & Sp.) 62. 
 
 34. The harbor masters have no power to 
 order the removal of vessels from berths occu- 
 pied by them, except to make room for such 
 others as require to be more immediately accom- 
 modated for the purpose of receiving or dis- 
 charging their cargoes ; and they cannot require 
 the removal of a batliing establishment licensed 
 by the department of docks, unless the place oc- 
 cupied is needed for some purpose connected 
 with commerce or navigation. lb. 
 
 35. The department of docks in the city of 
 New York have under sec. 99, ch. 574, Laws of 
 1871, amendatory of the act of 1870, only the 
 same power over the wharves, piers, &c., of 
 the city, and the structures thereon as was 
 previously possessed by the corporation of the 
 city ; and it cannot permit persons to erect 
 sheds or other buildings for the protection of 
 freight, or for any other purpose, on such piers 
 or wharves, no such power having been confer- 
 red upon the city. Sup. Ct., 1878, People y. 
 Mallory, 46 How. 281. 
 
NEW YORK CITY AND COUNTY. 
 
 509 
 
 36. The commissioners of docks have author- 
 ity to expend, annually, upon the docks, piers 
 and bulkheads of the city, under the provisions 
 of the charter, a sum not exceeding $3,000,000, 
 for which the comptroller is directed to issue 
 and sell the bonds of the city ; and there is no 
 control over that board as to the purposes for 
 which the moneys are to be expended, or the 
 amounts to be applied to each purpose, provided 
 they confine the expenditures to tlie objects 
 specified in the statute. Sup. Ct., 1873, People 
 ex rel. Agnew v. Green 65 Barb. 505. 
 
 87. It is proper for the commissioners in mak- 
 ing a requisition upon the comptroller for money, 
 to state the purpose for which it is required, and 
 call for a gross sura for that purpose, and, upon 
 such a requisition, it is the duty of the comp- 
 troller to pay over the money to them, to be 
 expended by them in their discretion for such 
 purpose, if within the law. They are not re- 
 quired to furnish any account with the requisi- 
 tion, or accompany it with vouchers of expen- 
 ditures, lb. 
 
 38. Salaries. Where the board of apportion- 
 ment' passes a resolution fixing the salary of an 
 officer after the time for making the apportion- 
 ment for that purpose, it will not be presumed 
 that they have exceeded the amount appropriat- 
 ed therefor at the proper time, but in the absence 
 of proof of such excess, he will be entitled to 
 recover his salary as so fixed. Sup. Ct., Sp. T., 
 1875, Eickhoff v. Mayor, etc. of New York, 49 How. 
 47. 
 
 39. — of assistant clerk of police court. 
 A resolution of the board of supervisors of New 
 York, fixing the salary of an assistant clerk of 
 the police court at the same amount as allowed 
 to the clerks of that court, must be construed as 
 fixing it at the amount lawfully allowed to those 
 clerks, that is $2,500, and not at the amount to 
 which it had been illegally increased ; and in 
 accepting the office he must be deemed to have 
 done so with knowledge that the increase was 
 illegal. Sup. Ct., 1873, Drake v. Mayor, etc. of 
 New York, 7 Lans. 340. 
 
 40. The failure of such assistant clerk to have 
 his salary for 1871 audited by the board of audit 
 "-pated by ch. 9, Laws 1872, does not work a 
 ij.ieiture of the salary itself, but only of the 
 right to payment out of the moneys raised under 
 the provisions of that act. lb. 
 
 41. The provisions of sec. 10, ch. 876, Laws 
 1866, are applicable only to appropriations made 
 by that act. lb. 
 
 42. — of clerks of common pleas. The 
 clerks of the Court of Common Pleas are not 
 county officers, and the board of apportionment 
 has no power, under sec 8, ch. 683, Laws of 
 1871, to reduce the salary of the clerk or deputy 
 clerk of that court. N. Y. Supr. Ct., 1875, Lan- 
 don V. Mayor, etc. of New York, 39 N. T. Supr. 
 (7 J. & Sp!) 467 ; AfE'g S. C, 49 How. 218. S. 
 P., .Tarvis v. Mayor, etc. of New York, 49 How. 354. 
 
 43. The officers whose salaries were intended 
 to be brought within the regulating power of 
 that board, are such as form a part of the politi- 
 cal government of the city and county, and are 
 connected with their executive or legislative de- 
 partments, lb. 
 
 44. — of crier. A person who was lawfully 
 appointed crier to the Court of Common Pleas 
 prior to 1870 and continued to perform the duties 
 of that office, receiving payment at the same 
 rate as other officers of the court, is entitled to 
 the full amount of salary as fixed for the first 
 time by the supervisors in May, 1870, although 
 it was so fixed at double the amount previously 
 
 paid him, and he can compel payment by man- 
 damus. N. Y. Supr. Ct., Sp. T., People ex rel. Ba- 
 vin V. Havemeyer, 47 How. 69. 
 
 45. — of police justices. The act of 1860 
 (p. 1,014, L. I860,) increasing the duties of po- 
 lice justices, and authorizing the common coun- 
 cil or board of supervisors " for the additional 
 
 duties imposed by this act to increase the 
 
 compensation of any officer mentioned herein," 
 does not authorize them to act but once in in- 
 creasing such compensation ; and the common 
 council having in 1862 fixed the salary of police 
 justices at $5,000, a subsequent increase, by re- 
 solution passed in 1869, of such salary to $10,000, 
 was wholly unautliorized and void, and was ex- 
 pressly prohibited by sec. 11, ch. 876, Laws 
 1869. Sup. Ct., 1874, Smith v. Mayor, etc. of New 
 York, 47 How. 277 ; S. C, 1 Hun, 56. 
 
 46. The reference in the act of 1870 (ch. 383,) 
 to the salaries then paid to police justices as the 
 limit of salaries to be fixed for civil justices, 
 does not legalize such unauthorized increase. lb. 
 
 47. Nor does the fact that an appropriation in 
 gross for the payment of salaries, made in 1870, 
 was large enough to include such increased sal- 
 ary, legalize the increase or authorize its pay- 
 ment, lb. 
 
 ni. Contracts ; fikances. 
 
 48. Extra compensation. It is lawful and 
 proper to contract with reference to the time 
 within which the work is to be completed, and 
 to allow the contractor, as extra compensation, 
 a sum equal to the inspector's per diem for each 
 day less than the contract time in which lie com- 
 pletes it Ct. App., 1871, Matter of Eager, 12 
 Abb. N. S. 151 ; S. C, 46 N. Y. (1 Sick.) 100 ; 
 Rev'g S. C, 10 Abb. N. S. 229 ; 41 How. 107 ; 
 58 Barb. 557. 
 
 49. Fireiirorks. The city authorities can 
 make a valid contract for the purchase of fire- 
 works, exceeding $250, in amount, for celebra- 
 tion purposes, without advertising for bids ; the 
 articles being of a pecuhar character and their 
 value depending entirely on the skill of the manu- 
 facturer. Sup. Ct., 1878, Detwiller v. Mayor, etc. 
 of New York, 46 How. 218. 
 
 50. It is not a valid objection to the payment 
 of such a claim against the city that there is no 
 money in the treasury applicable tliereto and 
 appropriated therefor, the act of 1866 being ap- 
 plicable only to contracts of that year. lb. 
 
 51. Where such expenditure was incurred by 
 a committee appointed by resolution of the com- 
 mon council, approved by the mayor, and a cer- 
 tain sum appropriated out of the fund for county 
 contingencies, it does not come within the pro- 
 hibition of sec. 28 of the charter of 1857. lb. 
 
 82. Such resolution was not witliin the terms 
 or meaning of sec. 7 of that charter, and did not 
 need to be advertised. lb. 
 
 63. Paving streets. By the general powers 
 vested in the common council by the Montgom- 
 erie charter, sec. 16 (Davies' Laws, 177), and 
 2 R. L. 407, sec. 175, they are the sole and ex- 
 clusive judges of the particular character of the 
 streets and the quality and kind of pavement 
 which the public interests require, or which will 
 be most beneficial to the property intended to 
 be benefited and liable to be assessed ; and these 
 powers, being conferred for public purposes, 
 will not be revoked by implication. According- 
 ly held that they might lawfully contract for 
 paving a street with a patented article, as to 
 which there could be no competition, notwith- 
 standing the provisions of sec. 104, of ch. 137, 
 
510 
 
 NEW YORK CITY AND COUNTY. 
 
 Laws of 1870, directing al! contracts for public 
 work to be made or let after an advertisement 
 for proposals and to the lowest bidder. Ct. App., 
 
 1872, Matter ofDugro, 50 N. Y. (6 Sick.) 513. 
 
 54. Under a contract for paving a street, whicli 
 provided that the contractor should not be en- 
 titled to pay until the work was completed and 
 its completion certified by inspectors appointed 
 by the Croton Aqueduct Board and by the water 
 purveyor, the certificates of both inspectors and 
 purveyor must be produced or their non-produc- 
 tion excused or accounted for, to enable the con- 
 tractor to recover for his work. N. Y. Supr. Ct., 
 
 1873, Guidet v. Mayor, etc. of New York, 36 N. 
 Y. Supr. (4 J & Sp.) 557. 
 
 55. The office of water purveyor was not abol- 
 ished by ch. 137, Laws of 1870, re-organizlng 
 the local government of the city; and, in the ab- 
 sence of evidence, it will be presumed that the 
 office was filled at the time of such contract. lb. 
 
 56. Neither the certificate of the commission- 
 er of public works provided for by the last 
 clause of sec. 5, ch. 573, Laws of 1871, nor 
 that of the commissioners under ch. 580, Laws 
 of 1872, that they are satisfied that no fraud has 
 been perpetrated in relation to said contract 
 or in the performance thereof, wiU dispense 
 with such certificate of the water purveyor. lb. 
 
 57. Repairs to court building. In an ac- 
 tion to recover compensation for repairs done to 
 a court building, under the direction of the com- 
 mittee of civil courts, the bill having been 
 audited by the board of supervisors and ordered 
 paid out of the proper appropriation ; — Held, 
 that there being proof enough to raise a fair 
 inference that the committee were duly author- 
 ized to have the'work done, and there being no 
 evidence that there was not a sufficient appropria- 
 tion applicable thereto, the plaintiff was entitled 
 to recover. Sup. Ct., 1875, Cogan v. Mayor, etc.. 
 ofN. Y., 5 Hun, 291. 
 
 58. Services of commissioners of rec- 
 ords. Conceding the act creating commission- 
 ers of records (ch. 407, Laws 1855) to be uncon- 
 stitutional, yet, they having performed the duties 
 imposed on them, and the legislature having 
 subsequently ratified- their acts, by appropria- 
 tions of money to pay the indebtedness incurred 
 thereby, the payment of just claims upon eon- 
 tracts with them cannot be defeated by setting 
 up the invalidity of the act under which they 
 were appointed. Sup. Ct, 1872, People ex rel. 
 Kingsland v. Bradley, 64 Barb. 228 ; Kev'g S. 
 C, 42 How. 423. 
 
 59. A certificate to such account ■ signed by 
 three of the commissioners is sufficient, where 
 it appears that one of the other commissioners 
 was dead at the date of the certificate, and the 
 fifth had removed from the State. lb, 
 
 60. Se-wers, materials for. The power 
 conferred by sees. 9 and 10, ch. 551, Laws of 1866, 
 upon the commissioner of public works is not 
 general and unlimited, but he can contract only 
 for materials necessary for sewers already^ de- 
 termined upon, and he can incur expense only 
 to the sum appropriated, which is limited to 
 $100,000. Sup. Ct., 1875, Nelson v. Mayor, etc. 
 of New York, 5 Hun, 190 ; Eev'd by Ct. App. 
 
 61. Street cleaning. _The contract for 
 cleaning the city streets, known as the Hackley 
 contract, entered into in 1861 under authority of 
 sec. 4, ch. 509, Laws 1860, is invalid, and cannot 
 be enforced by the contractors or by their as- 
 signees or successors, the provisions of that act 
 upon the subject being unconstitutional and 
 void. N. Y. C. P., 1874, Devlin v. Mayor, etc. of 
 New York, 48 How. 457. 
 
 62. Even if the contract was valid, it could 
 not be assigned so as to bind the city without 
 the express sanction of the common council, it 
 being in the nature of a personal trust for the 
 public benefit. lb. 
 
 63. Water-meters. The provision of sec. 
 104 of the city charter (ch. 137, Laws 1870), re- 
 quiring contracts for public works, supplies, &c., 
 in certain cases to be let to the lowest bidder, 
 after public notice, is repealed by implication 
 in respect to water-meters, by sec. 13, ch: 383, 
 Laws of 1870, which authorizes the commissioner 
 of public works, in his discretion to cause water- 
 meters to be placed in all stores, &c. The in- 
 tention of the legislature to place the whole 
 subject under the control of the commissioner 
 by that act, is confirmed by sec. 6, ch. 213, Laws 
 of 1871. Sup. Ct, 1872, People ex rel. Navano v. 
 Van Nort, 64 Barb. 205. 
 
 64. The city is therefore liable for the price of 
 water-meters furnished, in good faith, to the 
 commissioner of public works, and payment may 
 be enforced by mandamus. lb. 
 
 65. Validity. In order to render the certif- 
 icate of the commissioners, appointed under ch. 
 580, Laws of 1872, to examine as to certain con- 
 tracts with the city, not entered into in the 
 manner provided by law, and if satisfied that 
 no fraud was perpetrated in relation thereto, or 
 in the performance thereof, to certify to that 
 effect, binding and obligatory upon the city, 
 there must have been an actual examination and 
 investigation made by them as prescribed by the 
 statute ; and, in an action upon a contract certi- 
 fied by the comcmissioners, the city may show 
 that they had never investigated the contract, or 
 its performance, and that it had, in fact, never 
 been performed. Sup. Ct, 1875, Broum v. Mayor, 
 etc. of New York, 3 Hun, 685. 
 
 66. The owner of a newspaper, who was one 
 of the health commissioners of the city at the 
 time such newspaper was designated by the 
 mayor and comptroller to publish the proceed- 
 ings of the common council, being expressly 
 prohibited by law (sec. 115, ch. 137, Laws of 
 1870), from being interested in any contract 
 with the city, could not make any valid contract 
 for doing such work, nor could his performance 
 of the work create any valid claim against the 
 city. Sup. Ct, 1875, Mullaly v. Mayor, etc. of 
 New York, 3 Hun, 661. 
 
 67. Not let to lowest bidder. The power 
 of ordering and contracting for work in extend- 
 ing the distribution of Croton water, was by ch. 
 213, Laws of 1871, conferred directly and exclu- 
 sively upon the commissioner of public works, 
 limited only in the amount of the expenditure ; 
 and the provision of the amended charter (sec. 
 104, ch. 137, Laws of 1870), requiring contracts 
 " made or let by authority of the common coun- 
 cil " to be let to the lowest bidder after 10 days' 
 advertisement, and requiring work involving an 
 expenditure exceeding $1,000, to be done by 
 contract, does not apply thereto. MilI/EE, Fol- 
 GEK and Groveb, JJ., dissent. Ct App., 1875, 
 Greene v. Mayor, etc. of New York, 60 N. Y. (15 
 Sick.) 303 ; Sev'g, 1 Hun, 24. 
 
 68. No publication of resolution. A con- 
 tract for a street improvement, made without 
 publication of the resolution authorizing it in all 
 the newspapers employed by the corporation, as 
 required by law, before its adoption by the com- 
 mon council, is void, and the contractor cannot 
 recover in an action thereon for work done un- 
 der it. Sup. Ct., 1875, Moore v. Mayor, etc. of 
 New York, 4 Hun, 545. 
 
 69. The aeoeptanco of the work done and 
 
NEW YORK CITY AND COUNTY. 
 
 511 
 
 partial payment therefor by the city officers, 
 does not bind the city as a ratification of tlie 
 contract ; those officers having no power to bind 
 it except by observing the requirements of the 
 law affecting the proceedings. lb. 
 
 70. — of notice for proposals. A contract 
 entered into by the commissioner of public 
 works in Sept., 1870, in behalf of the city, for 
 regulating, grading and setting curb iai gutter 
 stones in Tenth avenue from Manhattan to 165th 
 street, and flagging the sidewalk thereof, with- 
 out complying with the provisions of the statutes 
 (sec. 38, ch. 446, Laws 1857, and ch. 308, Laws 
 1861), requiring alrcontraots to be founded on 
 sealed proposals made in compliance with public 
 notice, is void. Sup. Ct., 1874, Brown v. Mayor, 
 etc. of New York, 1 Hun, 30. 
 
 71. Such contract, so far as it provides for 
 setting curb and gutter-stones and flagging the 
 sidewalk, is not authorized by sec. 1, ch. 383, 
 Laws 1870, and is therefore void. lb. 
 
 72. It seems that act merely authorized the 
 commissioner to contract, without preliminary 
 action of the common council or any other local 
 authority, to determine the necessity or expe- 
 diency of the work, but it does not direct the 
 mode of contracting or the person to be con- 
 tracted with, and the contract should therefore 
 be made in compliance with existing laws. lb. 
 
 73. A certificate indorsed on such contract by 
 the commissioners appointed under ch. 580, Laws 
 1870, that they are " satisfied that there has not 
 been any fraud in relation to the making or en- 
 tering into the said contract," is not sufficient 
 to render such contract valid, as it varies in a 
 material point from the statutory requirement 
 that they should certify that they are " satisfied 
 that no fraud has been perpetrated in relation 
 thereto or in the performance thereof. lb. 
 
 74. Ch. 5, Laws of 1871, does not have the 
 effect to ratify such contract. lb. 
 
 75. Modification of proposals. Where 
 the published advertisement for proposals for 
 lighting the city by gas, provided that the pro- 
 posals should be opened at noon, and the per- 
 formance of the contract commence the same 
 night, the allowance of a modification of a pro- 
 posal asked for by a letter accompanying the 
 same, giving time to make the necessary connec- 
 tions, and accepting it in that form, is not a vio- 
 lation of the spirit of the ordinance requiring 
 all bids not in conformity to the ordinances to 
 be rejected, and does not render the proposal 
 irregular, and the execution of the contract will 
 not be restrained on that account. Sup. Ct., 
 1874, ZoUikoffer v. Havemeyer, 2 Hun, 800. 
 
 76. Lease of armories. The power given 
 to the board of supervisors of New York to pro- 
 vide for the permanent location of an armory, 
 by erecting the same, may be fairly construed 
 to authorize the hiring of a building for that 
 purpose for a term of years. N. Y. C. P., 1874, 
 People ex rel. Stockwell v. Earle, 47 How. 370. 
 
 77. The board of supervisors cannot lease ar- 
 mories and charge the county with the obliga- 
 tions thereby created, without compliance with 
 all the requirements of ch. 80, Laws of 1870, on 
 that subject. Sup. Ct., 1875, Fatlon v. Mayor, 
 etc. of New York, 4 Hun, 583. 
 
 78. The board cannot lease buildings for ar- 
 mories, in anticipation that they will sooner or 
 later be needed for the use of some regiment, 
 without compliance with the requirements of 
 that act, although they may be able to do so on 
 advantageous terms. Sup. Ct., 1875, Ford v. 
 Mayor, etc. of New York, 4 Hun, 587. 
 
 79. The occupancy and use of the premises | 
 
 by some regiment assigned thereto, cannot give 
 validity to such a lease made without authority. 
 Nor can the payment of rent by the officers of 
 the city be treated as a ratification. lb. 
 
 80. By sec. 2, ch. 758, Laws of 1873, the pro- 
 hibition of sec 2, ch. 9, Laws of 1872, against 
 paying arrears oirent upon leases of armories in 
 the city was removed ; but that did not deprive 
 the city or county of any legal defense it might 
 have, such as that the leases were made in vio- 
 lation of law, or obtained by fraud or collusion. 
 Sup. Ct., 1875, Fallon v. Mayor, etc. of New York, 
 4 Hun, 583. 
 
 81. Conveyance of land by. The title of 
 the city to Jands acquired under the act of April 
 22, 1834, to " vest certain lands, tenements and 
 hereditaments in the mayor, etc., of New York, 
 for certain purposes," vested in the city a fee 
 simple absolute ; and, if such land was not in 
 use or reserved for public purposes, the same 
 could be sold by the commissioners of the sink- 
 ing fund, and a deed of conveyance from the 
 city would convey a title in fee simple. Sup. 
 Ct., Sp. T., 1875, Gearty v. Mayor, etc. of New 
 York, 49 How. 33. 
 
 82. A purchaser from the commissioner swill, 
 therefore, be compelled to complete his purchase, 
 and where the premises have been held for him, 
 he will also be required to pay interest and taxes. 
 lb. 
 
 83. Although there may be a presumption that 
 such land was acquired for public purposes, yet, 
 where it has remained for a long time unused, 
 and there is no evidence that it has been re- 
 served for public purposes in the future, there 
 is no presumption that it is so reserved, that will 
 prevent a sale and conveyance. lb. 
 
 84. Finances. Where appropriations of 
 money are made generally for the expenses of a 
 department, the comptroller would be authorized 
 and might be compelled by mandamus to pay out 
 of such moneys, without discrimination, any 
 and all legal claims of that department, so long 
 as any portion of the appropriation remained ; 
 but where salaries and compensation to different 
 officers are separately designated in the appro- 
 priation, he cannot make any other or different 
 application of the money. N. Y. Supr. Ct., Sp. 
 T., 1874, People ex rel. Miller v. Green, 46 How. 
 367. 
 
 85. Auditing claims. The power to exam- 
 ine, settle and allow all accounts chargeable 
 against the county, and to direct the raising of 
 the sums necessary to defray the same, belongs 
 to the board of supervisors, and their action in 
 examining and allowing accounts is a judicial 
 act, and is not subject to revision by the finance 
 department. Sup. Ct., Sp. T., 1873, People ex rel. 
 Martin v. Earle, 47 How. 458. 
 
 86. The auditing and allowance by the board 
 of supervisors of the county of a proper claim 
 against the county, such as one for cleaning the 
 court room of the Court of Common Pleas under 
 a contract for that purpose, is sufficient authority 
 for the comptroller to pay it, where no fraud or 
 mistake is alleged. Sup. Ct., Sp. T., 1873, Peo- 
 ple ex rel. Hawley v. Earle, 46 How. 267. 
 
 87. If, after paying part, the comptroller re- 
 fuses to pay the balance, he may be compelled 
 to do so by mandamus, and to obviate any tech- 
 nical difficulty in the way of the comptroller, the 
 auditor may be directed by mandamus to audit 
 the claim for the balance. lb. 
 
 88. The audit and allowance by the board of 
 supervisors of the county of New York of a claim 
 against the county is conclusive of the right of 
 the claimant to the payment thereof, but his 
 
512 
 
 NEW YORK CITY AND COUNTY. 
 
 vouchers therefor must first be examined and 
 allowed by the auditor and approved by the 
 comptroller. Sup. Ct,, 1873, Brown v. Green, 46 
 How. 302. 
 
 89. It belongs to the supervisors to settle and 
 allow accounts. The auditor and comptroller 
 have neither concurrent nor revisory power in 
 that respect, but their authority is limited to 
 examining, allowing and approving the vouchers, 
 lb. S. P., People ex rel. Outwater v. Green, 56 N. 
 Y. (11 Sick.) 466. - 
 
 90. A claim against the city, once audited by 
 the board of supervisors, needs no further audit- 
 ing, when funds are provided for its payment. 
 Sup. Ct., 1872, People ex rel. Byrnes v. Green, 64 
 Barb. 162. 
 
 91. The act creating the board of audit (ch. 
 9, Laws of 1872) did not provide means for the 
 payment of any claims audited by the board of 
 supervisors of 1871, which remained unpaid for 
 want of funds, but authorized the payment of 
 only such as should have been audited and allowed 
 by the board of audit ; consequently, a party 
 wishing a claim previously audited by the board 
 of supervisors of 1871, paid out of the funds 
 arising from the sale of bonds under the act of 
 1872, must submit it for auditing, as well as al- 
 lowance, to the board of audit. lb. 
 
 92. The board of audit, in acting upon such a 
 claim, must hear, examine, pass upon, settle and 
 adjust it, and are not obliged to pass and allow 
 it at the rate adopted by the board of super- 
 visors, nor can they properly be compelled to do 
 so by mandamus. lb. S. P., People ex rel. Curry 
 V. Green, 64 Barb. 493. 
 
 93. In the case of a claim for fees as constable, 
 in attending the courts, the duty of the board is 
 to allow the compensation fixed bystatute, when 
 the number of days' attendance is ascertained 
 and settled. lb. 
 
 94. The powers of the board of apportionment 
 and audit are analogous in auditing claims to 
 those of the boards of supervisors in the several 
 counties. It has a discretion as to the amount to 
 be allowed on unliquidated claims, but as to a 
 salary or amount fixed by law or by valid spe- 
 cific contract, where the claimant has performed 
 his whole duty or his entire contract, the board 
 has no discretion. Sup. Ct., Sp. T., 1872, People 
 ex rel. Grant v. Board of Apportionment and Audit 
 of New York, 43 How. 412. 
 
 95. The functions and powers of the board of 
 apportionment and audit, established by ch. 9, 
 as amended by ch. 375, Laws of 1872, are judi- 
 cial in their nature ; and a claimant proceeding 
 under that statute was bound to submit his claim 
 to the jurisdiction as defined by it, and cannot 
 demand that the board shall allow his claim 
 without passing upon his right to payment. Ct. 
 App., 1873, People exrel. Brown v. Board of Appor- 
 tionment and Audit, 52 N. Y. (7 Sick.) 224. 
 
 96. The previous auditing of the claim under 
 the act of 1870, did not supersede the necessity 
 of submitting the question of the liability of the 
 city to the board. lb. 
 
 97. Claims for advertising. The true in- 
 tent of sec. 2, ch. 875, Laws of 1872, which re- 
 quires the comptroller of the city of New York 
 " to allow and pay the bills of the several pro- 
 prietors of newspapers in said city and county 
 for all city and county advertising actually done 
 prior to Jan. 1, 1872, was to provide an appro- 
 priate procedure, with an adequate fund, for the 
 speedy liquidation and payment of all strictly 
 legal obligations, and also of all just and honest 
 claims of an equitable, if not of a technically 
 legal character, but not of those which are clear- 
 
 ly illegal ; and under it, a claim for such services 
 rendered, in 1870, in good faith, under color of a 
 legal selection therefor made in 1868, no action 
 having been taken under the law of 1870, is en- 
 titled to be audited and allowed. Sup. Ct., Sp. 
 T., 1872, People ex rel, Pomeroy v. Green, 44 How. 
 201 ; S. C, 63 Barb. 390. 
 
 98. Expenses of fire department. Under 
 ch. 137, Laws of 1870, andch. 583, Laws of 1871, 
 the estimate made by the fire commissioners of 
 the amount necessary for the fire department, 
 was to be revised by the chief officers of the city 
 government, and the appropriation, when made, 
 fell into the general assets of the corporation, 
 subject to the proper drafts by or through the 
 fiscal department. Sup. Ct., 1872, Fire Commis- 
 sioners, Matter of, v. Green, 49 How. 1. 
 
 99. All claims against the fire department, 
 must, therefore, be presented to and revised and 
 settled by the finance department, and the fire 
 department cannot draw the funds in bulk for 
 the purpose of paying its expenses. lb. • 
 
 100. License moneys. The provisions of 
 ch. 836, Laws of 1872, requiring managers and 
 proprietors of places of public amusement to 
 procure licenses from the mayor, and requiring 
 him to pay over the amount received therefor to 
 the treasurer of the society for the reformation 
 of juvenile delinquents, are constitutional and 
 valid. Sup. Ct., 1874, Wallack v. Mayor, etc. of 
 New York City, 3 Hun, 84. 
 
 101. -Taxes. Chapter 108, Laws of 1873, au- 
 thorizing the board of supervisors of the county 
 of New York to raise such additional amount of 
 money as might be necessary to supply any de- 
 ficiency in the product of the taxes of 1862, 
 based upon erroneous assessments, applies only 
 to deficiencies in the amounts collected, not to 
 sums which might afterward be collected back 
 from the city. Bkadt, J., dissents. Sup. Ct., 
 1874, Merchants Nat. Bank of N. Y. Cityv. Board 
 of Supervisors of the County ofN. Y., 3 Hun, 156. 
 
 102. Retaxing for default of collector. 
 Chapter 80, Laws of 1837, merely confers a 
 power to retax for losses sustained by default of 
 collectors, not coupled with a duty ; and it ap- 
 plies only to cases where the collector and his 
 sureties are insolvent. N. Y. Supr. Ct., 1875, 
 Oakey v. Mayor, etc. of New York, 39 N. Y. Supr. 
 (7 J. & Sp.) 549. 
 
 103. That act does not release or discharge 
 the sureties of the collector. lb. 
 
 IV. Lands under water ; ferries ; piers ; 
 
 PILOTAGE. 
 
 104. Lands under -water. The grants to 
 the city, by the Dongan and Montgomerie char- 
 ters, of all the waste, vacant, unpatented and 
 unappropriated land, lying and being within the 
 city of New York, and reaching to low-water 
 mark, in, by and through all parts of said city 
 and Manhattan Island, &c., did not convey the 
 title to such lands between high and low-water 
 mark around Ward's Island, in the Bast Elver, 
 but only those around Manhattan Island. Sup. 
 Ct., Sp. T., 1872, Beach v. Mayor, etc. of New 
 York, 45 How. 357. 
 
 105. The grant made by the commissioners 
 of the land office, on the 26th April, 1811, to A. 
 E. Lawrence, E. Lawrence, J. Ward, and B. 
 Ward, of the lands under water around Ward's 
 Island from high to low-water mark, and ex- 
 tending on the north-west side of the island 150 
 feet from low-water mark towards New York 
 Island, and from other parts of said island 300 
 feet from low-water mark, was good and valid, 
 
NEW YORK CITY AND COUNTY. 
 
 513 
 
 and vested in them a title to tlie lands conveyed, 
 even though they did not at the time own all 
 of the upland, nor own that jointly, but in 
 severalty. lb. 
 
 106. The erection and occupation by the city 
 of a dock upon a portion of the premises so 
 conveyed did not constitute an adverse posses- 
 sion as to the whole. lb. 
 
 107. A deed, by the city, of lands under water, 
 by the terms of which the grantee is obliged, 
 when required thereto, but not till then, to erect, 
 according to any resolution or ordinance of the 
 corporation, good and sufficient firm avenues, 
 wharves, &c., but prohibited from building the 
 same or making land until permission first ob- 
 tained from the city, must be construed as pro- 
 hibiting the making of land in the intermediate 
 spaces between the shore line and the line of the 
 streets with such permission. Sup. Ct, 1874, 
 Duryea v. Mayor, eta. of New York, 2 Hun, 293. 
 
 108. An ordinance passed in 1856, extending 
 East street, and authorizing and directing ad- 
 joining proprietors to make and complete that 
 street, and to fill in and level the spaces between 
 their property and the street, does not authorize 
 the filling of water lots, but only of the spaces 
 between lands adjoining or opposite to East 
 street and such street. lb. 
 
 109. The street commissioner had no power 
 in 1867 to permit the construction of bulkheads 
 on the property so granted, or to fill in the land, 
 lb. 
 
 110. The city, having legislative control of 
 streets, wharves, etc., had power to impose such 
 conditions as to filling, and they were, therefore, 
 not inconsistent with the grant. lb. 
 
 111. The commissioners of the department of 
 docks of the city of New York have authority 
 under the statute to grant a permit to a person 
 to use the side of a pier in the city and water 
 adjacent thereto, for a floating bath, to carry on 
 the business of a bathing establishment, during 
 the pleasure of the board, with the consent of 
 the lessee of the pier, provided it does not es- 
 sentially interfere with or obstruct the public 
 use. N. T. Supr. Ct., 1873, Hoeft v. Seaman, 46 
 How. 24. 
 
 112. The powers and duties of the harbor 
 masters do not at all conflict with those of the 
 dock commissioners, but while the former have 
 large discretionary powers, their exercise must 
 be based on propriety and necessity. They can- 
 not remove a floating bath, so authorized, with- 
 out its being established either that it is an es- 
 sential interference with navigation, or that a 
 necessity exists for the immediate use of the 
 space occupied by it for the purposes of com- 
 merce, and they may be restrained from doing 
 so by injunction. lb. 
 
 113. Perries; The city of New York has 
 power, under its charter, to establish ferries 
 from the island to the opposite shores ; and that 
 power is absolute, conclusive and exclusive, and 
 the grant is one of property, to be dealt with as 
 property, subject only to the right of the sover- 
 eign power to take it away for public purposes, 
 and upon full compensation. N. Y. Sunr. Ct., 
 Sp. T., 1875,Mayor, eta o/N. Y. v. N. Y. ^.Staten 
 Isl. Ferry Co., 49 How. 250. 
 
 114. The ferry franchise is a valuable prop- 
 erty, and the city corporation is entitled to the 
 rents and profits of the same, which can no more 
 be appropriated, by any individual or corpora- 
 tion to his or its own use, without authority, 
 than any other property of the city. lb. 
 
 115. The Staten Island Ferry Co., having no 
 right through its incorporation to run a ferry 
 
 33 
 
 from the city to the shore of Staten Island, can 
 derive no such right from a lease of dockage for 
 ferry purposes, made to it by another ferry 
 company, although such sub-letting was consent- 
 ed to by the department of docks, that depart- 
 ment having no authority to license ferries. lb. 
 
 116. Piers. The owner of property in New 
 York bay, extending 500 feet out from low- 
 water mark into the bay, under a grant from 
 the State made many years since, cannot legally 
 extend his pier beyond that hne, although the 
 line defined as a limit by the harbor commis- 
 sioners under the act of 1857 lies beyond it. 
 Sup. Ct., Sp. T., 1875, People v. N. -F. ^ Staten 
 Isl. Ferry Co., 49 How. 511. 
 
 117. Under the act of 1857, the legislature de- 
 fined and regulated the manner of constructing 
 p ers around New York and Staten Island, by 
 reqairing them to be of a specific width, and to 
 have intervening water spaces between them of 
 at least 100 feet, and that act is applicable to 
 the land so granted. lb. 
 
 118. A pier built by such owner beyond the 
 line of his grant, or not having a space of 100 
 feet between it and an adjoining pier, is subject 
 to removal by the people of the State. lb. 
 
 119. Pilotage. The act of Congress of July 
 25, 1866, relative to pilots, as amended in 1867, 
 does not supersede the statutes of this State, 
 existing at the time of the passage of the former 
 act, relative to pilotage in the harbor of New 
 York. N. Y. C. P., 1871, Henderson v. Spofford, 
 10 Abb. N. S. 140; S. C, 3 Daly, 361. 
 
 120. Under the New York pilotage laws (cli. 
 243, Laws 1857), and the regulations of the com- 
 missioners of pilots, a pilot offering services to a 
 vessel bound to or from the port of New York 
 by way of Sandy Hook, which are refused, may 
 recover his fees for pilotage in an action there- 
 for, the same as if his services had been accept- 
 ed, lb. And this is so, notwithstanding the 
 offer and refusal were beyond the territorial 
 jurisdiction of the State. N. Y. C. P., 1871, 
 
 Wilson V. MUls, 10 Abb. N. S. 143 ; S. C.,'4 
 Daly, 549. 
 
 121. Where the master replied to the pilot's 
 offer of services, that they wanted a pilot when 
 they reached pilot ground, but kept on his course 
 and entered port without a pilot, — Held, that 
 this was a sufficient refusal to sustain the action, 
 lb. 
 
 V. Stkeetb ; PAEKS ; sbwebs 
 
 122. Dedicated street. A street, laid down 
 on a map of the city, which has been filed, 
 though never formally opened, becomes dedi- 
 cated by a conveyance of adjoining lots bound- 
 ing them on the centre line of such street by its 
 name, and accepted by the city by user, laying 
 down gas and water pipes in it, and lighting it 
 with gas for several years, and necessarily be- 
 comes subject to the acknowledged power of the 
 authorities to regulate, grade and improve it, 
 and to impose upon the adjoining land the ex- 
 penses of such acts as may be done in the prop- 
 er exercise of any of those powers. Sup. Ct., 
 1875, In Matter oflngrakam, 4 Hun, 495 ; Aff'd 
 by Ct App. 
 
 123. ImproTement. The act to improve and 
 regulate the use of Fourth avenue in the city of 
 New York (ch. 702, Laws 1872), is constitu- 
 tional and valid, and under it the city is bound 
 to pay one-half the cost of the improvement, in- 
 cluding the cost of temporary tracks for running 
 trains during the progress of the work, and such 
 other things as had been previously authorized 
 
514 
 
 NEW YORK CITY AND COUNTY. 
 
 or directed as a part thereof. Sup. Ct., Sp. T., 
 1874, People ex rel. N. Y. dr Harlem E. E. Go. v. 
 Havemeyer, 47 How. 494. 
 
 124. After the improvement has been made 
 with tlie acquiescence of the city, and the money 
 has been raised by tax to pay for it, the mayor 
 cannot witliout a yiolation of a plain duty refuse 
 to countersign a warrant for tlie city's share of 
 the expense, and lie may be compelled to do so 
 by mandamus. lb. 
 
 125. Opening. Madison avenue being laid 
 out and extended from Eighty-sixth to One 
 Hundred and Twentieth street, by ch. 403, Laws 
 of 1867, and its precise location, width and ex- 
 tent prescribed thereby, nothing was left to be 
 done, except to open and improve it, to render 
 it serviceable to the public ; and the provision 
 in the second section that the corporation coun- 
 cil shall, within three months after the passage 
 of the act, take the necessary legal means to 
 open the street, must be deemed directory 
 merely as to the time. Sup. Ct., 1874, Stevenson 
 V. Mayor, etc. of New York, 1 Hun, 51. 
 
 126. The paramount object of the act was the 
 extension and opening of the street, and the 
 proceedings on the part of the counsel were for 
 the benefit of the public, but the taking such 
 proceedings within three months was not made 
 a condition, on which the extension of the street 
 should depend, nor was the taking of them after 
 that time prohibited. If they were, in all other 
 respects, afterward properly taken, that was 
 sufficient. lb. 
 
 127. No resolution of the common council di- 
 recting the institution of such measures by the 
 counsel was necessary, consequently the non- 
 publication of a resolution adopted by them in 
 the manner required in other cases, in no way 
 impaired the authority which the statute gave 
 for extending the street. lb. . 
 
 128. The provisions of that act for assessing 
 the benefits of the improvement upon property 
 not within the actual limits of the extension, 
 but actually benefited thereby, are valid. lb. 
 
 129. Appeal. Under ch. 270, Laws of 1854, 
 an appeal may be taken to the General Term of 
 the Supreme Court from an order of the Special 
 Term confirming the report of commissioners in 
 proceedings relative to opening streets, under 
 eh. 565, Laws of 1865 ; but no appeal will lie 
 from the proceedings of the General Term to the 
 Court of Appeals. Sup. Ct., 1875, In Matter of 
 Kingshridge Road, 4 Hun, 599. 
 
 130. Service of notice of appeal on the clerk 
 of the court and the corporation council is suffi- 
 cient in such a case. lb. 
 
 131. Change of grade. A person who has 
 sustained damages by reason of a change of the 
 grade of a street by the commissioners of Cen- 
 tral Park, under ch. 697, Laws of 1867, is entitled 
 to have such damages assessed and paid, even 
 though the grade of such street may not have 
 been formally established by any law or ordi- 
 nance of the common council ; that act, by the 
 terms " present grade," meaning the existing 
 grade, whether legally established or not 
 Davis, P. J., dissents. Sup. Ct., 1875, People 
 ex rel. Develin v. Asten, 4 Hun, 461. 
 
 132. Closing streets. It is not only within 
 the powers, but it is the duty of the board of as- 
 sessors created by ch. 302, Laws of 1859, to esti- 
 mate and assess the damages arising from the 
 closing of a street or the changing of a grade of 
 one, in pursuance of the authority conferred by 
 ch. 697, Laws of 1867, within the district speci- 
 fied in that act ; and they are to do it in the 
 manner required by the act of 1852, by making 
 
 a just and equitable award of the amount of 
 loss and damage to the owners of land upon a 
 street so closed. N. Y. C. P., 1875, People ex 
 rel. Ward v. Asten, 49 How. 405. 
 
 133. Such assessment is to be certified to the 
 board of revision and correction, established by 
 ch. 308, Laws of 1861, which, in this respect, has 
 succeeded to the powers of the common council, 
 and when ratified by them, is binding and con- 
 clusive ; and four months after ratification, the 
 amount of the respective awards is to be paid 
 by the corporation. lb. 
 
 184. TiUe. The authority conferred upon 
 the corporation of the city of New York by sec. 
 178, ch. 86, Laws of 1813, to acquire land for 
 streets by coercive proceedings against the 
 owners, contemplates the acquisition by the city 
 of the entire title, and the making of compensa- 
 tion for buildings thereon as well as for the soil. 
 Ct. App., 1873, Schuchardt v: Mayor, etc. of New 
 York, 53 N. Y. (8 Sick.) 202; Aff'g S. C, 59 
 Barb. 298 ; 62 Barb. 671. 
 
 135. The commissioners of estimate and as 
 sessment cannot, without the consent of the 
 owner, exclude the value of the buildings and 
 fixtures from their assessment and assess only 
 the value of land taken as to be paid for by the 
 city ; but the owner may waive his right and 
 assent to retain the buildings as a chattel inter- 
 est, and the commissioners have power, by 
 agreement with the owner, to make such an 
 arrangement, in which case they will be regarded 
 as severed, and the city will acquire title to the 
 land subject to the right of the owner to re- 
 move the buildings, and will be liable to him if 
 it afterward appropriates them to its own use. 
 lb. 
 
 136. Use by railroad. The owners of lots 
 abutting upon a street in New York city have 
 an easement in the street in common with the 
 whole people, to pass and repass and also to 
 liave free access to their premises ; but the fee 
 being in the public, the legislative authority can 
 lawfully consent to modify, regulate, or enlarge 
 its use for the benefit of the public, and may 
 authorize its use for the track of a railroad com- 
 pany ; and, in the latter case, mere inconven- 
 ience of access to or depreciation in value of 
 abutting lots will not be the subject of action, 
 in the absence of proof that the injury was 
 caused by negligence or wilful misconduct. 
 Ct. App., 1872, Kellinger v. Forty-second st., etc. 
 E. R. Co., 50 N. Y. (5 Sick.) 206. 
 
 137. 'Widening. Under sec. 4, ch. 57, Laws 
 of 1871, the Special Term had power to vacate 
 the order confirming the report of the commis- 
 sioners on assessments for the widening and 
 straightening of Broadway, and referring the 
 matter to new commissioners, even if it were 
 within the discretion of the court to vacate the 
 order and confirmation in part. Sup. Ct,, 1872, 
 In matter of widening Broadway, 42 How. 220 ; 
 S. C, 61 Barb. 483. 
 
 138. Where there was good reason for vaca- 
 ting the order altogether, the General Term 
 will not, on appeal, review the question whether 
 it ought to have been reversed only in part. lb. 
 
 139. The act of 1871,. directing an inquiry 
 into the report of the old commissioners ap- 
 pointed to widen Broadway, respecting benefits 
 and awards, etc., and authorizing the Supreme 
 Court, on good cause shown, to open the order 
 of confirmation and cause the question of valua- 
 tion to be re-examined, &o., is constitutional and 
 valid. lb. 
 
 140. Parks. Where the commissioners of 
 Central Park have duly exercised the power 
 
NEW YORK CITY AND COUNTY. 
 
 515 
 
 conferred upon them by law to lay out new 
 parka or squares, it is not for tlie court to 
 determine, in opposition to tlieir autliority, as to 
 tlie necessity for laying out sueii parks or 
 squares. Sup. Ct., 1872, In Matter of Commis- 
 sioners of Central Park, 63 Barb. 282. 
 
 141. Tlie fact tliat all the lands embraced in 
 a proposed new park are not contiguous, but 
 that there are intervening blocks and spaces not 
 taken, is not a valid objection to tlie confirma- 
 tion of the report of the commissioners of 
 estimate and assessment, where such spaces are 
 not so large as to interfere with the integrity 
 and continuity of tlie plan,-or the equalizing of 
 the assessments. lb. 
 
 142. Nor is it a valid objection to such report, 
 that the commissioners have regarded the land 
 occupied by the track of a railroad company 
 within tlie designated limits of the new park, as 
 not having been taken for the use of the park, 
 and not requiring any estimate for damages, 
 or assessment for benefits ; since it cannot be 
 taken for that purpose without express authority 
 from the legislature. lb. 
 
 143. Sewers. Under the act (ch. 881, Laws 
 of 1855J relating to sewerage and drainage in 
 the city of New York, the number and extent 
 of the sewerage districts to be laid out, and the 
 power to modify and change them, is entirely 
 within the control and discretion of the Cro- 
 ton Aqueduct Board ; and that discretion is 
 nof subject to review by the courts. Ct. App., 
 1873, In matter of Ellsworth, 53 N. Y. (8 Sick.) 
 647. 
 
 144. The act prohibiting the construction 
 of any sewer or drain in New York, unless in 
 accordance with a general plan (ch. 321, Laws 
 of 1865), applies to cases where proposals for 
 the work had been advertised for and bids 
 opened before the passage of the act. Ct. App., 
 1871, In re Protestant Episcopal School, 46 N. Y. 
 (1 Sick.) 178; Rev'g S. C, 40 How. 139; 58 
 Barb. 161. 
 
 145. Under that act the general plan of sewer- 
 age to be devised by the Croton aqueduct board 
 for particular districts, was subject to modifica- 
 tion by them, and it is not necessary that 
 modifications made should appear on the gen- 
 eral plan or map filed by them or that new 
 plans or maps should be filed. Sup. Ct., 1874, 
 
 Williamson, Matter of, y. Mayor, etc. of New 
 York, 3 Hun, 65. 
 
 146. The failure of the board to decide upon 
 a change in the plan at a meeting called for 
 that purpose, is an " omission," within cli. 580, 
 Laws of 1872, and does not invalidate an assess- 
 ment for a sewer laid according to plans ap- 
 proved by the board. lb. 
 
 VI. Local assessments. 
 
 147. On virhat property. Property of relig- 
 ious corporations, although exempt from tax- 
 ation, is liable to assessment for local improve- 
 ments required for public convenience, and 
 tending directly to enhance the value of such 
 property. Sup. Ct., 1875, Matter of Harlem 
 Presb. Church, 5 Hun, 442. 
 
 148. The provisions of sec. 7, ch. 326, Laws 
 of 1872, that assessments for improvements 
 shall not exceed half the value of the property, 
 as valued by the assessors of the ward, can only 
 relate to property which is taxable for the 
 ordinary purposes of government ; and it does 
 not prevent the assessment of property ex- 
 empt and therefore not valued on the tax rolls, 
 
 for benefits resulting from local improvements, 
 lb. 
 
 149. The provisions of ch. 881, Laws of 1855, 
 relating to the construction of sewers in the city 
 of New York, for an assessment of the expense 
 upon lots to be benefited, and the collection and 
 lien of such assessments, contemplate the col- 
 lection of assessments from other parties than 
 the municipality, as owners of the lands assessed ; 
 and, although property owned by the city at 
 the time the expense is incurred is conveyed by 
 it before the assessment is actually laid, no part 
 of such expense can become payable or col- 
 lectible out of it thereafter. Com. App., 1873, 
 Dowdneu v. Mayor, etc. of New York City, 54 
 N. Y. (9 Sick.) 186. 
 
 150. Wliere sewers are to be constructed on 
 two streets in the same district, according to a 
 plan adopted for that district, they may prop- 
 erly be included in one contract, and the 
 expense of the whole assessed on the lots on 
 each street in proportion to their frontage on 
 such street. Sup. Ct., 1875, In Matter of Ingra- 
 ham, 4 Hun, 495 ; Aff'd by Ct. App. 
 
 151. Lien of. Under the act of 1853, relating 
 to the collection of taxes and assessments in 
 New York city, and ch. 381, Laws of 1871, on 
 the same subject, an assessment for a street 
 improvement does not become a lien upon the 
 land assessed, until the title thereof with the 
 date of confirmation and the date of the entry 
 had been entered in the record of the titles of 
 assessments, kept in the street commissioner's 
 office, and also in a similar record kept in the 
 office of the clerk of arrears. N. Y. Supr. 
 Ct., 1875, De Peyster v. Murphy, 39 N. Y. Supr. 
 (7 J. & Sp.) 255. 
 
 162. Under the special laws relating to the 
 city, there is created in the first instance a lien 
 in the nature of a mortgage, which may be 
 enforced by sale of the land, upon failure of the 
 owner to pay the assessment on demand, and 
 no previous attempt to collect from goods and 
 chattels or to enforce personal liability is neces- 
 sary, lb. 
 
 153. A lien for an assessment for a public im- 
 provement is only created by the order of the 
 court confirming the report of the commission- 
 ers, and if the order of confirmation is vacated 
 and reversed whether for mistake of law or mis- 
 take of fact, the lien is thereby extinguished ; 
 arid a vendor who has allowed the purchaser to 
 retain money to pay such assessment, can re- 
 cover it back if not paid over thereon. N. Y. 
 Supr. Ct, 1874, Lounsbury v. Potter, 37 N. Y. 
 Supr. (5 J. & Sp.) 67. 
 
 154. The lien of an assessment is not destroy- 
 ed by an invalid sale and its subsequent cancel- 
 lation, but it continues a lien in the nature of a 
 mortgage, under the provisions of ch. 86, Laws 
 of 1813, and is subject to no law of limitation 
 except the presumption of payment, which would 
 not attach until after the expiration of 20 years. 
 Sup. Ct., 1875, Fisher v. Mayor, etc. of New York, 
 3 Hun, 648. 
 
 155. Where premises, upon which there is at 
 the time a valid lien for an unpaid assessment, 
 are taken for public streets, the amount of the 
 lien may be retained by the city out of the dam- 
 ages assessed. lb. 
 
 156. Validity. If the common council, after 
 adopting a resolution for the paving of a street 
 with a patent pavement between certain points, 
 and receiving proposals therefor, pass a new 
 resolution changing tlie plan and the limits of 
 the improvement, the Croton board have no 
 right to award a contract in conformity to the 
 
516 
 
 NEW YORK CITY AND COUNTY. 
 
 new resolution ; and if they do, no assessment 
 under it will be valid. Sup. Ct., 1873, People ex 
 Tel. Trundy v. Van Nort, 66 Barb. 331. 
 
 157. The certificate of the commissioners ap- 
 pointed under eh. 580, Laws of 1872, that they 
 were satisfied that there was no fraud in the 
 contract, could give no validity to such an un- 
 authorized contract; and the commissioner of 
 public works could not be compelled to execute 
 it. lb. 
 
 158. When a street is to be paved with a 
 patent pavement, there is no propriety in adver- 
 tising for proposals, or in attempting to carry 
 out the provision of the charter that the work 
 shall be given to the lowest bidder, because 
 there is no opportunity for competition ; and the 
 provision entitling the lowest bidder to the con- 
 tract does not apply. lb. 
 
 159. It is no objection to an assessment for 
 work done under an ordinance directing a street 
 to be curbed and guttered, and the sidewalks 
 flagged, without directing that new flagging 
 should be used, that part of the old flagging was 
 relaid, and the old curb reset, the expense of the 
 labor, only, being charged. Sup. Ct., 1871, An- 
 derson, matter of, 60 Barb. 375. 
 
 160. Nor is it a valid objection, that the lots 
 are charged for the work done opposite each 
 lot, while the expenses are charged on all the 
 property, per foot, equally ; or that more than 
 one lot owned by the same person, is included 
 in one assessment, where provision is made for 
 apportioning the amount upon each lot. lb. 
 
 161. Tlie provision of ch. 779, Laws of 1873, 
 allowing the board of estimate and apportion- 
 ment to reconsider, revise and redetermine the 
 estimate already made for that year, intended to 
 limit the time for doing so to a time prior to the 
 1st of July 1873, and their power to act on that 
 subject ceased on that day. Sup. Ct., 1874, 
 People ex veL McGowan v. Havemeyer, 1 Hun, 61. 
 
 162. The omission of the commissioner of 
 public works to certify to the amount of expense 
 paid or actually incurred by the city, will render 
 invalid an assessment for local improvements, 
 made under ch. 574, Laws of 1871. No other 
 evidence can be substituted for such certificate. 
 One stating tlie contract price simply, but silent 
 as to the amount of work done, is insufficient, 
 though accompanied by an affidavit of another 
 party, not certified nor referred to by him, 
 stating the work done, from which the expense 
 can be computed. Ct. App., 1872, Matter of Cam- 
 eron, 50 N. Y. (5 Sick.) 502. 
 
 163. Under a resolution of the common coun- 
 cil, tliat a street be paved, and that crosswalks 
 be laid or relaid at intersecting streets, under 
 the direction of the Croton aqueduct depart- 
 ment, it is not essential to the validity of the 
 assessment that crosswalks be laid at all the in- 
 tersecting streets, but a substantial compliance 
 by laying crosswalks at those intersections 
 where, in the judgment of that department, 
 they are necessary or proper, is sufficient Ct. 
 App., 1871, Matter of Eager, 12 Abb. N. S. 151 ; 
 S. C, 46 N. Y. (1 Sick.) 100 ; Aff'g S. C, 10 Abb. 
 N. S. 229 ; 41 How. 107 ; 58 Barb. 557. 
 
 164. Advertisement for proposals. A 
 fair and substantial compliance with sec. 38 of 
 the charter of 1857, requires that, where the 
 work for which proposals are sought is sepa- 
 rable, and a portion of it patented, separate pro- 
 posals should be invited by advertisement for 
 that portion which is not the subject of a patent, 
 BO that there may be competition. lb. 
 
 165. Where the advertisement called for pro- 
 posals only for Nicholson pavement, and the 
 
 assessment included also the price of stone 
 crosswalks done under the same contract, — 
 Held, that the irregularity in validated the assess- 
 ment, lb. 
 
 166. The omission to advertise for bids or 
 sealed proposals for crosswalks to be laid or 
 relaid, when they are embraced within the reso- 
 lution of the common council, is a legal irregu- 
 larity under the act of 1858 (ch. 338), but under 
 the provisions of sec. 27, ch. 883, Laws 1870, it 
 is not necessarily fatal to the assessment ; that 
 section allowing the amount of any unlawful in- 
 crease caused thereby to be deducted. Sup. Ct., 
 Sp. T., 1870, Matter of McCormacle, 10 Abb. N. 
 S. 234 ; S. C, 60 Barb. 128. S. P., Matter of 
 Wilks, 10 Abb. N. S. 234, ». 
 
 167. The omission of the pavement from that 
 part of the street ordered to be paved which lies 
 between the rails of a railroad company, and 
 which that company was bound to pave, is not 
 a legal irregularity, and parties seeking to vacate 
 an assessment cannot complain of it since it 
 lessens the assessment. lb. 
 
 168. The selection of a patented pavement by 
 the common council is not a legal irregularity ; 
 nor is an error in the principle on which the 
 assessment is made such an irregularity as can 
 be reviewed under the act of 1858. lb. 
 
 169. A charge of more than two and one-half 
 per cent, for collection, although erroneous, is not 
 fatal to the assessment, but the excess may be 
 deducted. lb. 
 
 170. Publication of notice. Irregularities 
 in local assessments in New York city, such as 
 the want of proper publication of notice and the 
 like, are cured by the provisions of sec. 7, ch. 
 580, Laws of 1872. Sup. Ct., 1874, In matter of 
 Burke, 2 Hun, 281 ; Modified by Ct. App. 
 
 171. The mere designation of a newspaper by 
 the common council to publish official proceed- 
 ings, &c., does not make it an advertising organ 
 of the city, unless it accepts the appointment ; 
 and proof that a notice of assessment is not to 
 be found in such paper, without proof that it 
 accepted the appointment, does not show that it 
 was not legally published. Sup. Ct., 1874, In 
 matter of Keteltof, 2 Hun, 221 ; 48 How. 116 ; In 
 matter of Burke, 2 Hun, 281. 
 
 172. The provision in the annual tax levy 
 for the city of New York for 1870 (sec. 1, eh. 
 883, Laws of 1870), that all city advertising 
 thereafter should be published in newspapers 
 "to be designated from time to time by the 
 mayor and comptroller," did not abrogate all 
 previous designations of newspapers ; but, until 
 new ones were made, the old remained in force, 
 and publication of notices of a local assessment 
 in the papers so previously designated was valid. 
 Ct. App., 1874, In matter of Folsom, 56 N. Y. 
 (11 Sick.) 60. 
 
 173. The notice prescribed by sec. 7, of the 
 amended charter of 1857, is the publication of 
 the resolution and report of committee recom- 
 mending the work and the expenditure, and no 
 other or different notice will be a compliance 
 with the statute. Ct. App., 1875, In Mutter of 
 Phillips, 60 N. Y. (15 Sick.) 16; Eev'g S. C., 
 sub nom, Phillips v. Mayor, etc. of N. Y., 2 Hun, 
 
 174. The requirement of that charter as to 
 such publication, is not limited to the four daily 
 papers which the mayor and comptroller were 
 required by sec. 2, ch. 227, Laws of 1863 to 
 designate, but includes also such as may have 
 been designated under the discretionary power 
 thereby conferred. lb. 
 
 175. The designation of a paper under that 
 
NEW YORK CITY AND COUNTY. 
 
 517 
 
 act is an employment by the corporation, unless 
 it is declined, and it will' be presumed to con- 
 tinue in the absence of evidence that it has been 
 revoked or terminated. lb. S. P., In matter of 
 Astor, 50 N. Y. (5 Sick.) 868. 
 
 176. The selection made under the act of 1868 
 continued in force through the year 1869. lb. 
 
 177. It is not notice of the intention or design 
 to introduce or pass a resolution contemplating 
 an improvement, which is required by oh. 137, 
 Laws of 1870, but the fact that it has been in- 
 troduced or passed, and that must be published 
 three days before it can be voted on, otherwise 
 the assessment for such improvement will be 
 void, the statute being mandatory. Sup. Ct., 
 1875, In matter of Levy, i Hun, 501. 
 
 178. A resolution passed by the council au- 
 thorizing a specific improvement, without a 
 three days' previous publication as required by 
 sec. 20, of the act of 1870, is illegal, and an 
 assessment founded thereon is void ; and the 
 failure of the mayor and comptroller to desig- 
 nate papers in which.the city advertising should 
 be done, as required by see. 1, ch. 383, Laws of 
 1870, does not excuse such non-compliance with 
 the charter, or render the resolution and assess- 
 ment valid. Ct. App., 1873, In matter of /Smith, 
 52 N. Y. (7 Sick.) 526 ; Rev'g S. C, 65 Barb. 283. 
 
 179. An omission to publish the proceedings 
 or resolution of either board of the common 
 council authorizing the repaving of a street, 
 before the final vote of that body upon the re- 
 solution, is fatal to an assessment for such im- 
 provement upon lands assessed for the former 
 pavement ; and proof of such omission as to one 
 board is sufficient to authorize the vacating of 
 the assessment. Ct. App., 1875, In matter of Lit- 
 tle, 60 N. Y. (16 Sick.) 343; Rev'g S. C, 3 Hun, 
 215. 
 
 180. An omission to publish the resolution 
 or the report of either of the committees of the 
 common council providing for an improvement, 
 in any of the papers designated for the publica- 
 tion of their proceedings, as required by see. 7, 
 of the charter of 1867, is a " legal irregularity " 
 under ch. 338, Laws of 1858, and under the 
 amendatory act of 1874 (ch. 312), it is a " sub- 
 stantial error," which is fatal to the validity of 
 an assessment for repaving. Ct. App., 1875, In 
 matter of Anderson, 60 N. Y. (15 Sick.) 457 ; 
 Modifying S. C, 48 How. 279 ; 2 Hun, 377. 
 
 181. It is for the person applying to vacate 
 an assessment to show that the paper in which 
 it is claimed there was no publication, was a 
 corporation paper at the time of the alleged 
 omission; and proof of a designation thereof by 
 the comptroller alone in July 1867, is not suffi- 
 cient to show that fact after the enactment of 
 ch. 853, Laws of 1868, which transferred the 
 power of appointment from the comptroller to 
 the mayor and comptroller. lb. 
 
 182. The mere designation of such paper 
 after the enactment of the latter act in an in- 
 strument signed by the mayor and comptroller, 
 without communicating that fact to the common 
 council, as therein required could not be deemed 
 an employment by the corporation. lb. 
 
 183. 'The provision of the city charter (sec. 7, 
 ch. 446, Laws of 1857), requiring the publication 
 of a resolution authorizing a specific improve- 
 ment two days before its adoption, is sufficiently 
 complied with by one publication in the author- 
 ized newspapers, two days before its adoption. 
 Sup. Ct., 1872, In matter of Bassford, 63 Barb. 
 161 ; Aff'd, S. C, 50 N. Y. (5 Sick.) 509. S. P., 
 In matter of Agnew, 4 Hun, 435. 
 
 184. The object to be attained being notice 
 
 to parties interested, may be as fully attained 
 by publishing a resolution recommended by tlie 
 Croton board, as if the same had been offered 
 by a member of the board of aldermen. lb. 
 
 185. The prohibition of that act against pass- 
 ing an ordinance involving expenditure, until 
 after publication of a notice thereof, is plainly 
 mandatory, and requires the two days' notice to 
 be published in all the corporation papers ; and 
 an assessment based upon a resolution for grad- 
 ing a street passed without previous publication 
 of notice in all the papers designated for the 
 publication of legal advertisements will be held 
 void, and be vacated for that reason. Ct. App., 
 
 1871, Matter of Douglass, 12 Abb. N. S. 161 ; S. 
 C, 46 N. Y. (1 Sick.) 42 ; Bev'g S. C, 40 How. 
 201 ; 9 Abb. N. S. 84 ; 68 Barb. 174. 
 
 186. Publication of a resolution for the re- 
 pavement of a street in the city of New York in 
 one newspaper, was sufficient, under cli. 137, 
 Laws of 1870 ; and the invalidity of an assess- 
 ment made for a repavement, under a resolution 
 passed subsequent to that act, is not established 
 by proof of its non-publication in one of the 
 papers employed by the corporation. Sup. Ct., 
 1875, Conway v. Mayor, etc. of New York, 4 Hun, 
 43. 
 
 187. The designation of a paper to publish 
 the proceedings of the common council, under 
 ch. 853, Laws of 1868, is not complete and oper- 
 ative, until its name and title has been com- 
 municated to the common council and to the 
 clerk of each board thereof, and a failure to 
 publish a notice of a resolution for a street im- 
 provement in a paper the designation of which 
 has not become operative, does not invalidate 
 the assessment therefor. Sup. Ct., 1875, In mat- 
 ter of Peugnet, 5 Hun, 434. 
 
 188. 'The act of 1870 (ch. 383), relative to the 
 publication of such notices only in newspapers 
 designated by the mayor and comptroller could 
 not be compUed with until the designation of 
 the papers was made, and that never having 
 been done, the duty created by the act never 
 became an active one. lb. 
 
 189. The publication being imperative, and 
 no newspapers having been properly designated, 
 the clerks of the respective boards were neces- 
 sarily left at liberty to publish through any 
 newspapers that could be procured by them to 
 do it. lb. 
 
 190. A certificate by the commissioners ap- 
 pointed under ch. 580, Laws of 1872, that the 
 contract for repairing a street was without fraud, 
 legalized the contract from that time, and an 
 assessment Jaid to defray the expenses could 
 not afterward be set aside for a failure to pub- 
 lish the resolution authorizing the improvement. 
 lb. S. P., In matter of Carey, 5 Hun, 463. 
 
 191. Since the enactment of ch. 580, Laws of 
 
 1872, and ch. 313, Laws of 1874, an assessment 
 for a street improvement cannot be set aside for 
 a failure to publish the resolution authorizing 
 such improvement, except in case of fraud or of 
 a repavement. Sup. Ct., 1875, Matter of Harlem 
 Presb. Church, 5 Hun, 442. 
 
 192. Confirming or modifying assess- 
 ments. The proceedings in reference to im- 
 provements, under which assessments and 
 awards are made, are regulated entirely by 
 statute. Sup. Ct., Sp. T., 1870, Commissioners of. 
 Central Park, In matter of, 41 How. 12; S. C, 
 60 Barb. 132. 
 
 193. The Supreme Court has power either to 
 confirm the report of the commissioners, when 
 made to it, or to send such report back for 
 alteration or correction as often as it may deem 
 
518 
 
 NEW YORK CITY AND COUNTY. 
 
 proper, and it is for the commissioners to make 
 tlie alterations or corrections. The court cannot 
 make them directly, or, at least, not after con- 
 firmation of the report. lb. 
 
 194. According to the statute, the alteration 
 or correction may be made at any time before 
 the report is presented to the court after publica- 
 tion. After confirmation the commissioners are 
 fancii officio. lb. 
 
 195. It was clearly the intennon of the 
 statute that the confirmation of the commis- 
 sioners' report should be final and conclusive in 
 reference to their proceedings as between the 
 commonalty of New York and all persons whom- 
 soever, in regard to the land taken, and the 
 estimate and assessment made and imposed. lb. 
 
 196. All persons interested in the lands affect- 
 ed, being notified by advertisement of the in- 
 tended presentation of the report, must appear 
 and jnake their objections, either to the com- 
 missioners or to the court, or be concluded 
 thereby. lb. 
 
 197. The report being subject to alteration, 
 one to whom an award is first made is not justi- 
 fied in relying upon that entry, but should see to 
 it that it is not altered to his prejudice before 
 confirmation, at the instance of any subsequent 
 claimant having an apparent title. lb. 
 
 198. Although the report, when confirmed, is 
 conclusive in the respects above mentioned, it 
 is not conclusive as between different claimants 
 of the same awards, but the statute (sec. 178 
 act of 1813, Valentine's laws, 1,252), provides 
 that the person to whom of right the money be- 
 longed m,ay bring an action against tlie person 
 to whom the award was given after payment 
 thereof to him. lb. 
 
 199. The provisions of ch. 383, Laws 1870, sec. 
 27, relative to tlie modification of assessments 
 for local improvements, do not apply to cases 
 which had arisen prior to its enactment, although 
 argued subsequently. Sup. Ct., 1871, In matter 
 ofRemsm, 59 Barb. 317. 
 
 200. Objections to the report of commission- 
 ers of estimate and assessment must be submit- 
 ted to the commissioners tliemselves, otherwise 
 the court cannot review or pass upon them, 
 even with the consent of the corporation coun- 
 sel. They cannot be taken for the first time 
 upon presentation of the report for confirmation. 
 Sup. Ct. Sp. T., 1875, In matter of opening 
 Eleventh Avenue, 49 How. 208. 
 
 201. The commissioners can amend or correct 
 their report in any case of manifest error, and 
 can reduce awards made as damages for land 
 taken, at any time previous to the final confirma^ 
 tion of tlie report, provided notice is actually 
 given to the parties affected thereby. The 
 power of the commissioners, or of the court, to 
 alter or amend tlie report is not exhausted until 
 the report has been confirmed. lb. 
 
 202. Inadequacy of valuation is not sufficient 
 ground for refusing to confirm the report, and it 
 will not be sent back for correction except in a 
 case of gross inadequacy and inequality, and 
 where some wrong principle has been adopted 
 as to the amount allowed. lb. 
 
 203. Where there are conflicting claims to 
 the same parcel of land, the commissioners are 
 not called upon to adjust them, but they may 
 properly award the damages to "unknown own- 
 ers," leaving the claimants to settle the question 
 of ownership afterwards. lb. 
 
 204. Lands used as a cemetery may be ex- 
 empted by the commissioners from assessment 
 for benefits, where in their opinion such lands 
 are not benefited by the improvement. lb. 
 
 205. A commissioner of estimate and assess- 
 ment in the city of New York is not an officer of 
 the corporation within the meaning of the char- 
 ter, and it is no objection to an assessment that 
 one of the commissioners has been elected an 
 alderman. lb. 
 
 206. An assessment for improvements exceed- 
 ing in amount one-half the assessed value of the 
 property, should, under sec. 7, ch. 326, Laws of 
 1840 (if that remains unrepealed), be reduced 
 to such one-half value, and vacated as to the ex- 
 cess merely. Sup. Ct., 1875, In matter of O'Hare, 
 5 Hun, 287. 
 
 207. The certificate of the sum or sums ex- 
 pended, required by sec. 5, ch. 574, Laws of 1871, 
 to be given by the commissioner of public 
 works, is sufficient if it contains a substantial 
 statement of such sum or sums. lb. 
 
 208. The acts curing defects in assessments 
 (ch. 680, Laws of 1872, and ch. 813, Laws of 1874), 
 should be construed as applicable to cases where 
 there are mere defects of formality in official 
 certificates, which contain in substance all that 
 the statute requires. lb. 
 
 209. Revie-roing and vacating assess- 
 ments. The provisions of sec. 27, ch. 383, 
 Laws of 1870, for relief against frauds and 
 irregularities in assessments, are constitutional 
 and valid, and are applicable to assessments 
 made prior to the enactment of that act. Sup. 
 Ct., 1871, Treacy, In matter of 59 Barb. 525. 
 
 210. An application made since that statute, 
 to vacate an assessment made previous to its 
 enactment must be governed by the law as it 
 now stands, and if an assessment has been in- 
 creased by reason of irregularities, it should be 
 reduced by the amount of such unlawful in- 
 crease, lb. 
 
 211. Those provisions are not repealed by ch. 
 312, Laws of 1874, In matter of Rne, 5 Hun, 455. 
 
 212. Upon an application to vacate an assess- 
 ment on the ground that it is in excess of the 
 expense as per contract, and has been so de- 
 clared by the proper authorities by bringing an 
 action against the contractor to recover back 
 the amount overpaid, the court will not try the 
 question of such excess, but will direct that the 
 proceedings remain in statu quo until it is de- 
 cided'in the action against the contractor. lb. 
 
 213. An application under ch. 338, Laws of 
 1858, as amended by ch. 312, Laws of 1874, 
 to vacate an assessment to pay compensa- 
 tion awarded for land taken to open streets, in 
 pursuance of the act of 1813 as amended by oh. 
 483, Laws of 1862, can be made only for fraud 
 or substantial error, in cases where no investiga: 
 tion could be had in the first instance or in the 
 proceeding itself. Sup. Ct, 1875, In matter of 
 Furniss, 4 Hun, 624. 
 
 214. The statute does not apply where no 
 fraud is alleged, nor error urged other than 
 that the land assessed is not subject thereto. lb. 
 
 215. Fraud in law, as by the omission of two 
 lots from an assessment which were liable there- 
 to, is not sufficient ground for setting aside the 
 assessment, but fraud in fact must be shown. 
 Sup. Ct., 1874, Voorhis, matter of, 8 Hun, 212 ; 
 Aff'd by Ct. App. 
 
 216. An assessment may properly be set aside 
 for an omission from the roll of one block which 
 should have been included therein. Sup. Ct., 
 1875, In matter of Casey, 5 Hun, 463. 
 
 217. An error of judgment on the part of the 
 commissioners as to the principle of apportion- 
 ment among the property-oiyners, is not a fraud 
 or irregularity in the proceedings, which can be 
 reviewed under the provisions of ch. 338, Laws 
 
NEW YORK CITY AND COUNTY. 
 
 519 
 
 1858. Ct. App., 1871, Matter of Eager, 12 Abb. 
 N. S. 161 ; S. C, 46 N. Y. (1 Sick.) 100. 
 
 218. The provision of sec. 27, oh. 383, Laws 
 
 1870, authorizing an erroneous assessment to be 
 modified by deducting the sum erroneously in- 
 cluded is not retroactive, and does not applyto 
 assessments made before its passage. lb. 
 
 219. It is the duty of the assessors, upon dis- 
 allowing objections made to an assessment for a 
 local improvement, to present such objections 
 to the board of revision ; and their omission to 
 do 80 is such an " irregularity," within the 
 meaning of sec. 1, ch. 338, Laws of 1858, as au- 
 thorizes an application to a judge of the Su- 
 preme Court to vacate the assessment. Sup. Ct., 
 
 1871, Dunning, Matter of, 60 Barb. 377. 
 
 220. The Supreme Court has no power, since 
 the enactment of ch. 580, Laws of 1872, to va- 
 cate an assessment for a failure to publish the 
 notice of the final passage of the resolution au- 
 thorizing an improvement required by the act of 
 1857, except in cases of fraud or repavement. 
 Sup. Ct., 1875, In matter of Agnew, 4 Hun, 435. 
 
 221. Flagging is one species of repavement, 
 within the meaning of sec. 7, ch. 580, Laws of 
 
 1872, as amended by cli. 313, Laws of 1874, and 
 an assessment for such reflagging may be vaca- 
 ted for irregularity or omission to advertise, un- 
 der those statutes. Ct. App., 1875, In matter of 
 Phillips, 60 N. Y. (15 Sick.) 16 ; Rev'g S. C, sub. 
 nom, Phillips v. Mayor, etc. ofN. Y., 2 Hun, 212. 
 
 222. A proceeding to vacate an assessment, 
 under ch. 338, Laws of 1858, may be maintained 
 by a grantor of the premises, who is bound to 
 indemnify his grantee against such assessment. 
 lb. 
 
 223. Assessments made to pay compensation 
 awarded for lands taken to open and widen 
 streets, &c., in the city of New York, and to 
 defray the expenses of the proceedings, pur- 
 suant to 2 R. S. 1813, p. 409. sec. 178, as amend- 
 ed by ch. 483, Laws 1862, cannot be vacated by 
 proceedings under ch. 338, Laws 1858. The 
 latter act was not intended to apply to cases 
 where there has already been a legal investiga- 
 tion. Ct. App., 1875, In matter of Arnold, 60 N. 
 Y. (15 Sick.) 26. 
 
 224. The owner of property in New York city 
 for which an assessment has once been paid for 
 paving the street, who is not a party to the " re- 
 quirement" which, under ch. 580, Laws of 1872, 
 is preliminary to an assessment for repaving 
 such street, and has not been heard before the 
 commissioners, is not prohibited from asserting 
 against the assessment, any objection fatal to 
 the proceedings. Such a case is expressly exempt- 
 ed from and is unaffected by the general pro- 
 vision of see. 7 of said act, which prohibits 
 the setting aside of an assessment for irregular- 
 ities. Ct. App., 1873, Matter of Astor, 53 N. Y. 
 (8 Sick.) 617. 
 
 225. A sworn application for the vacation 
 of an assessment upon lots, which, in respect to 
 the ownership of the lots, merely states that, at 
 the time of the confirmation of the assessment, 
 the applicant " was and still is held liable for 
 the payment of the assessment imposed on " the 
 lots mentioned, is inadequate to show any right 
 on the part of the applicant to institute the pro- 
 ceedings. Sup. Ct., 1874, Little, In matter of, 3 
 Hun, 215. 
 
 226. In an application to vacate an assessment 
 under ch. 338, Laws of 1858, the onus of estab- 
 lishing the fraud or irregularity complained of 
 is upon the applicant ; and, even though the act 
 of 1861, constituting the board of revision and 
 correction, by which an assessment was con- 1 
 
 firmed, should be adjudged unconstitutional, the 
 court will not, in the absence of evidence, assume 
 that it was not also confirmed by the common 
 council. Ct. App., 1872, In matter of Bassford, 
 60 N.Y. (6 Sick.) 509. 
 
 227. Proceedings instituted under the act of 
 1858, to vacate an assessment for local improve- 
 ments in New York city, are applicable only to 
 the lands described in the proceedings, and the 
 vacation of the assessment as to them does not 
 render the assessment for the whole improve- 
 ment invalid. Ct. App., 1873, In matter of De- 
 lancet/, 52 N. Y. (7 Sick.) 80. 
 
 228. The Supreme Court has power, at Spe- 
 cial Term, aside from any statute, to set aside 
 upon motion an order confirming the report of 
 commissioners of estimate and assessment, ap- 
 pointed pursuant to ch. 890, Laws of 1869, in 
 proceedings for the widening of Broadway, and 
 to appoint new commissioners. Ct. App., 1872, 
 Matter of application of the Mayor, etc. of New 
 York relative to widening Broadway, 49 N. Y. (4 
 Sick.) 150 ; Aff'g S. C, 42 How. 220 ; 61 Barb. 
 483. 
 
 . 229. The provision of the act of 1813 making 
 the report, when confirmed, " final and conclu- 
 sive," has reference to an appeal therefrom and 
 not to the remedy by motion to set it aside for 
 irregularity, fraud, or mistake. lb. 
 
 230. Reference. Upon applications to vacate 
 assessments under ch. 312, Laws of 1874, the 
 court is not required to take the proofs in open 
 court, but may order them to be taken and re- 
 ported by a referee. Sup. Ct., 1875, In matter 
 ofBohm, 4 Hun, 568. 
 
 231. An appeal from an assessment cannot 
 be maintained by a former lessee of the premises 
 assessed, whose term has expired, upon Iiis 
 simple allegation that he is held liable for the 
 payment thereof, without any allegation or 
 proof that he is legally liable therefor. Sup. Ct., 
 1874, In matter of Burke, 2 Hun, 281 ; Modified 
 by Ct. App. 
 
 232. A difference between the petition for the 
 vacation of an assessment which was presented 
 to the court, and the copy served on the cor- 
 poration counsel, not shown to have prejudiced 
 the latter, cannot be urged as a defect on appeal 
 from an order vacating the assessment. Sup. 
 Ct., 1874, Williamson, Matter of, v. Mayor, etc. of 
 New York, 3 Hun, 65 ; Aff'd by Ct. App. 
 
 233. An application to vacate an assessment 
 for laying a sewer, constructed in accordance 
 with plans and specifications made by the Croton 
 Aqueduct Board, because not in conformity to 
 the general plan adopted for the district where 
 it was built, should be denied, if there is no evi- 
 dence to show whether or not that general plan 
 had been modified by tlie board. lb. 
 
 234. Appointment of commissioners. 
 The appointment of commissioners of estimate 
 and assessment for street improvements in New 
 York city, was, in 1869 and 1871, regulated by 
 ch. 209, Laws of 1839, which had superseded the 
 act of 1813 on that subject. N. Y. Supr. Ct., 
 1874, Astor V. Mayor, etc. of New York, 37 N. Y. 
 Supr. (5 J. & Sp.) 539. 
 
 235. Under that act, as amended in 1862 and 
 1871, a notice of a motion for the appointment 
 of commissioners was required to be published 
 at least 14 days in two public newspapers; 
 and notice of the presentation of any supple- 
 mental or amended report by the commission- 
 ers was required to be published for at least 
 20 days. lb. 
 
 236. The omission to give such notices, if a 
 legal irregularity, is not now fatal to the assess- 
 
520 
 
 NEW YORK CITY AND COUNTY. 
 
 ment, being cured by ch. 580, Laws of 1872. 
 lb. 
 
 237. Where one of the commissioners ap- 
 pointed by the court under an act authorizing 
 tlie court to refer the matter of widening a 
 street to new commissioners, after vacating a 
 former order of confirmation, on a notice of five 
 days, declined to act, — Held, that the same 
 court had power to supply his place without no- 
 tice of the motion. Want of notice could be 
 only an irregularity. Sup. Ct., 1872, In Matter 
 of Broadway Widening, 63 Barb. 572. 
 
 238. Report of commissionerB. Under 
 the act of 1813, two of the commissioners of 
 estimate and assessment in the matter of widen- 
 ing a street may act, and a report signed by two 
 is valid. Sup. Ct., 1872, In Matter of Broadway 
 Widening, 63 Barb. 572. 
 
 239. A provision in the act authorizing the 
 widening of a street, that the report of the 
 commissioners shall be made within six months, 
 must be deemed directory merely; and juris- 
 diction will not be lost if it is not made within 
 that time. lb. 
 
 240. There can be but one report, and that the 
 report of all or the majority of the commis- 
 sioners. A minority report will not be consid- 
 ered on appeal. lb. 
 
 241. Where the commissioners award the 
 value of the land taken for a street improve- 
 ment to the owner, and the value of the build- 
 ings to a tenant, entitled to them under his 
 lease, the latter cannot be allowed anything fur- 
 ther for loss of rents and profits. lb. 
 
 242. Under sec. 4, ch. 67, Laws of 1871, the 
 commissioners in making a corrected assess- 
 ment, were authorized to assess any and all 
 property which they might deem benefited, and 
 were not limited to the former area of assess- 
 ment, lb. 
 
 243. Powers of. If, under the provisions 
 of art. 1, sec. 7, of the constitution of 1846, the 
 legislature can authorize a majority of the com- 
 missioners appointed to assess the compensation 
 for private property taken for a street improve- 
 ment to decide that question, the commissioners 
 must yet meet and consult together; and ch. 
 483, Laws of 1862, so far as it authorizes two 
 commissioners to act without conference or 
 consultation with the third, is unconstitutional 
 and void. N. Y. Supr. Ct., 1874, Astor v. Mayor, 
 etc. of New York, 37 N. Y. Supr. (5 J. & Sp.) 539. 
 
 244. An assessment for benefits, made by only 
 two commissioners of estimate and assessment, 
 who had also to act upon the question of com- 
 pensation for land taken, and made without 
 meeting or consultation with the otiier commis- 
 sioner, is, therefore, void, and' the party so as- 
 sessed is entitled to have it set aside. lb. 
 
 245. Tlie commissioners of estimate and as- 
 sessment appointed in a proceeding to open a 
 street in New York city, are governed strictly 
 by statute, and have no authority to impose 
 conditions to be performed by the owners of 
 lands taken before payment to them of the 
 awards ma'de. N. Y. C. P., 1869, fij'far v. Mayor, 
 etc. of New York, 3 Daly, 174. 
 
 246. The confirmation 'of the report of such 
 commissioners by the Supreme Court, is conclu- 
 sive only as to those acts which the commis- 
 sioners had power to perform. lb. 
 
 247. The act of organizing a board of asses- 
 sors, with tlie " duty of making the estimates 
 
 and assessments required by law for pitcli- 
 
 ing, paving, regulating and repairing streets " 
 (ch. 302, Laws of 1869), is sufficiently broad to 
 cover an assessment for damages to a building 
 
 caused by the establishment of a new grade for 
 a street, under the provisions of eh. 697, Laws of 
 1867, and that board has power to make such 
 assessment. Sup. Ct., 1876, People ex ret. Doyle 
 V. Green, 3 Hun, 765 ; AfE'd by Ct. App. 
 - 248. Objections to the awards or assess- 
 ments of the commissioners for lands taken for 
 a local improvement in the city of New York 
 must be made before the confirmation of their 
 report, and they can then make such correc- 
 tions or modifications as they find to be just 
 and proper. Sup. Ct., Sp. T., 1870, Morning 
 Side Park Case, 10 Abb. N. S. 338. 
 
 249. Upon application for confirmation, the 
 court has power to send back the report for cor- 
 rection as often as it deems proper, but it has 
 no power itself to alter such report. It is for 
 the commissioners, in such case, to alter and 
 correct it as directed by the court. lb. 
 
 250. Tlie commissioners become fundi officio 
 when their report is confirmed, and no motion 
 to correct the report can then be entertained, 
 lb. 
 
 251. An owner of land taken who relies on 
 the report as originally made in his favor, and 
 leaves the state before confirmation, cannot 
 have it set aside after confirmation although 
 altered to his prejudice ; but his remedy is by 
 action against the party receiving the award to 
 which he was himself entitled, lb. 
 
 262. Discontiuiiing proceedings. The 
 discretionary power given to the mayor, alder- 
 men and commonalty of the city, to discon- 
 tinue proceedings to acquire title to lands for 
 streets, &c., if exercised before confirmation of 
 the report of the commissioners of estimate and 
 assessment (Laws of 1839, 185, sec. 7), was 
 clearly conferred upon the commissioners of pub- 
 lic parks in respect to., the military parade 
 ground, by sec. 6, ch. 697, Laws of 1867, and sec. 
 11, ch. 290, and sec. 2, ch. 628, Laws of 1871, 
 and they had power to discontinue proceedings 
 instituted under that act, without application to 
 the court. Sup. Ct., 1874, In Matter of Military 
 Parade Grounds, 48 How. 285 : S. C, 2 Hun, 374 ; 
 Aff'd, 60 N. Y. (16 Sick.) 319. 
 
 263. A public body or public ofiicers, to whom 
 the right of eminent domain has been delegated 
 by the legislature for public purposes exclusive- 
 ly, may be permitted to discontinue proceedings 
 instituted by them, before the title has been 
 acquired and has become vested ; and the Gen- 
 eral Term has power to direct the discontinu- 
 ance of such proceedings on application made, 
 and the Court of Appeals will interfere with the 
 exercise of its discretion in respect thereto lb. 
 
 254. Charge for collection. The collec- 
 tor of assessments is b'ound to pay into the 
 bureau of assessments the whole amount collect- 
 ed by him, and is entitled to two and one- 
 half per cent, upon the amount paid in. He may 
 therefore compute and collect that percentage 
 on not only the expense of the work, but also on 
 the amount of his commission thereon. Ct. 
 App., 1871, Matter of Eager, 12 Abb. N. S. 151 ; 
 S. C, 46 N. Y. (1 Sick.) 100 ; AfE'g S. C, 10 
 Abb. N. S. 229 ; 41 How. 107; 68 Barb. 657. 
 
 VII. Liabilities of citt. 
 
 255. On awards. It is not necessary in 
 order to enable a person entitled to a sum award- 
 ed for lands taken for a street in New York city 
 to sue the city therefor, that his name should be 
 mentioned in the commissioners' report ; but 
 one referred to therein by the general term un- 
 known owner may, under see. 183, ch. 86, Laws 
 
NEW YORK CITY AND COUNTY. 
 
 521 
 
 1813, maintain such an action, in which ease he 
 must prove his right to the sum demanded. Ct. 
 App., 1874, Fisher v. Mayor, etc. of New York, 57 
 N. Y. (12 Sick.) 344 ; Eev'g S. C, 4 Lans. 451. 
 
 256. The provision of sec. 184 authorizing 
 payment into court in such a case, does not pre- 
 vent an action unless payment was actually 
 made, and is pleaded and proved. lb. 
 
 257. Under the provisions of ch. 206, Laws of 
 1818, relative to the laying out, &c., of streets 
 in the city of New York, the owner of lands 
 taken retains a right of possession until the city, 
 by some affirmative act, indicates its intention 
 to proceed with the improvement ; or in the 
 absence of any action by the city, until the 
 lapse of 15 months after confirmation of the 
 commissioners' report, which, in that case, will 
 be deemed the time for proceeding. The award 
 is not payable until four months after the time 
 appointed for proceeding ; hence, when no action 
 is taken by the city, interest cannot be collected 
 on such award until after 19 months from the 
 confirmation of the commissioners' report. Ct. 
 App., 1874, Hamersley y . Mayor, etc. of New York, 
 56 N. Y. (11 Sick.) 533. 
 
 258. Expenses of improvements. Where 
 improvements in opening parks and streets are 
 made under acts requiring the commissioners to 
 cause all such surveys, maps, profiles, plans and 
 other things as they may judge necessary to be 
 done, to be made and prepared for their use, the 
 persons rendering services in respect to such 
 surveys, maps, etc., are the subordinates and 
 servants Of the commissioners, and they have no 
 right to resort to the city itself for their com- 
 pensation, or to the fund to be created by the 
 commissioners' assessments, nor have the com- 
 missioners power to invest the persons so em- 
 ployed by them with such right. Sup. Ct., 1874, 
 People ex rel. Bagley v. Green, 1 Hun, 1. So held 
 as to a clerk employed by the commissioners. 
 Sup. Ct., 1874, People ex rel. Purser v. Green, 1 
 Hun, 86. 
 
 259. The only remedy provided by statute for 
 the person so employed, is tlie presentation of 
 his claim by the commissioners, as a portion of 
 their expenditures, and its satisfaction by their 
 disbursement of the amount received for that 
 purpose. Whether that remedy would be lost 
 by the taxation of the commissioners' bill, with- 
 out including such claims, query 1 lb. 
 
 260. Commissioners appointed under the act 
 of 1813, for making improvements in parks and 
 streets, can maintain an action against the city 
 to recover for their services and expenses in re- 
 spect to such improvements, and apphcations 
 for writs of peremptory mandamus may there- 
 fore be properly denied. lb. 
 
 261. — of extraditing criminals. The city 
 of New York is not liable to a third person, with 
 whom it has not contracted, for the expenses in- 
 curred in extraditing fugitive criminals from 
 anotlier State, although he was employed by, 
 and his bill was approved by the district attor- 
 ney. His remedy is against the district attorney 
 who, by taking the necessary steps and furnish- 
 ing the proper evidence, may recover it himself 
 from the city. N. Y. Supr. Ct., Sp. T., 1875, 
 Walling v. Mayor, etc. of New Ym-k, 49 How. 383. 
 
 262. — for legal services. Conducting pro- 
 ceedings for the recovery of amounts due from 
 delinquent tax-payers is a duty confided by the 
 ordinances of 1866, to the law department of the 
 city, and the corporation counsel is authorized to 
 employ additional counsel to assist him therein. 
 Sup. Ct., 1875, Smith v. Mayor, etc. of New Ym-k, 
 5 Hun, 237. 
 
 268. The right to recover for such services, 
 directed under a sufficient appropriation to the 
 law department, ought not to be defeated by its 
 expenditure for other purposes. lb. 
 
 264. Such services are not within the scope 
 or intent of sec. 38, ch. 446, Laws of 1857, re- 
 quiring a certificate by the head of the appro- 
 priate department as to the necessity of the ex- 
 penditure, lb. 
 
 266. As such proceedings are only authorized 
 within one year after the return of the warrant 
 issued by the receiver of taxes for the collection 
 thereof, the city is not liable for services in such 
 proceedings commenced after the time therefor 
 has expired. lb. 
 
 266. Injuries from se'virers. The city is 
 not liable for injuries, arising from the dis- 
 charge of water from sewers constructed by it 
 upon lands granted by it, which were under 
 water at the time of the grant, and which liave 
 been filled by the grantee without the permis- 
 sion required by the terms of such grant. Sup. 
 Ct., 1874, Duryea v. Mayor, etc. of New York, 2 
 Hun, 293. 
 
 267. The city is not liable for damages caused 
 by water setting back from a city sewer into 
 the basement of a building, on the occasion of a 
 heavy rain, when the evidence shows that before 
 sand was washed into it by such rain, and after 
 tlie removal thereof, it was sufficient to carry off 
 tlie water flowing into it, and there is no evi- 
 dence that it was previously obstructed, or im- 
 properly constructed or out of repair. Sup. Ct., 
 1875, Smith v. Mayor, etc. of New York, 4 Hun, 
 637. 
 
 268. There is no obligation upon the city to 
 build a street sewer, but when it determines to 
 do so, the duty is imposed on it to build one 
 sufficiently large and so constructed as to carry 
 ofE the water, and not throw it upon adjoining 
 property ; and the city is liable for injuries to 
 such property caused by the bursting of such a 
 sewer through its insufficient size and imperfect 
 construction. Sup. Ct., 1872, Lewenthal v. Mayor, 
 etc. of New York, 5 Lans. 532 ; S. C, 61 Barb. 511. 
 
 269. NegUgence of fire department. The 
 metropolitan fire department of the city of New 
 York, created and organized by ch. 249, Laws 
 of 1865, has control and management of the 
 men and property, and the measures and ac- 
 tion for the prevention and extinguishment of 
 fires. The commissioners are not the agents of 
 the city corporation, and it is not liable for their 
 acts or omissions. Sup. Ct., Sp. T., 1875, 
 Woolbridge v. Mayor, etc. of New York, 49 How. 67. 
 
 270. The city is not liable for personal in- 
 juries caused by the explosion of a steam fire 
 engine in the street when being used by that 
 department. lb. 
 
 271. Repairs of school-houses. No action 
 could have been maintained against the Board 
 of Education, before it was abolished by the act 
 of 1871, for expenses incurred by trustees of 
 school districts in the repair of school-liouses 
 belonging to that board, in excess of the amount 
 limited by the by-law of the board for that pur- 
 pose ; and the act abolishing that board did 
 not create any right of action against the city 
 tlierefor. Sup. Ct., 1874, Miller v. Mayor, etc. 
 of New York, 3 Hun, 35. 
 
 272. Persons dealing with the trustees were 
 bound in law to know the extent of their powers, 
 and have no remedy for tlieir acts in abuse or 
 excess of their authority, except against those 
 officers themselves. lb. 
 
 273. Repairs of wells and pumps. The 
 street commissioner has no authority in respect 
 
522 
 
 NEW YORK COMMON PLEAS— NONSUIT. 
 
 to repairs of wells and pumps, the Croton Aque- 
 duct Department having the exclusire charge of 
 all such work ; and the city is not liable for such 
 repairs made under the direction of the street 
 commissioner. Sup. Ct., 1874, Burns v. Mayor, 
 etc. of New York, 3 Hun, 212. 
 
 274. The necessity of the work must also have 
 been certified to by the head of that department, 
 as required by sec. 38, cli. 446, Laws 1857, and 
 sec. 6 of the city ordinances of 1866, to render 
 tlie city liable. lb. 
 
 275. School-houses. An action cannot be 
 maintained against the city of New York, on a 
 demand for building a school-house in a town in 
 Westchester county, which has been annexed to 
 the city under the provisions of ch. 613, Laws of 
 1873, and chs. 122 and 308, Laws of 1874, although 
 valid and duly certified against such town, until 
 it has been audited by tlie Board of Education 
 of the city. Sup. Ct., 1875, McDonnell v. Mayor, 
 etc. ofNewYork,i Hun, 472. 
 
 276. Salary of district justice. The city 
 is liable to a justice of the district court for the 
 amount of his salary, as fixed by the mayor and 
 comptroller, in pursuance of ch. 383, Laws of 
 1870, at the sum then actually being paid to 
 police justices under an ordinance passed in 
 1869, wliether such ordinance was lawful or not ; 
 and he can maintain an action therefor after 
 making the proper demands and a refusal to 
 pay. Sup. Ct., Sp. T., 1872, Quinn v. Mayor, etc. 
 of New York, 44 How. 266 ; S. C, 63 Barb. 695. 
 
 277. It is no defense to such action that ch. 
 583, Laws 1871, limits the amount which the 
 board of supervisors may raise by taxation for 
 that year, and directs its apportionment for certain 
 purposes, and forbids the incurring of any liabili- 
 ties in excess of that amount, or of any liability 
 for any purpose, by any department of the city, 
 or officers of the county, exceeding the appro- 
 priation for such purpose, and declares that 
 neither the city or county shall be held liable for 
 any indebtedness so incurred ; or that the board 
 of apportionment has power to regulate the sala- 
 ries of officers and employes of the city and 
 county governments, and that said board has 
 appropriated to the payment of the plaintiff's 
 salary only one-half the amount claimed by him, 
 which they allege is his legal salary, as pre- 
 viously fixed by law, and as regulated by the 
 act of the board in appropriating that amount, 
 and that there is no money in the treasury appli- 
 cable to the payment of the amount claimed. lb. 
 
 278. The civil justices are entitled by law 
 to have their salaries paid by the city, yet they 
 are not attached to any of the departments of 
 the city government, nor are they officers or em- 
 ployes of any of those departments, and their 
 salaries lawfully fixed before the passage of that 
 act cannot be deemed habilities incurred in 
 violation thereof. lb. 
 
 279. That act is prospective, and cannot be 
 construed as abrogating contracts or liabilities of 
 the city existing at the time of its passage. The 
 salary of a district justice elected and qualified 
 before the passage of that act, as previously 
 fixed, cannot be affected thereby ; and it was 
 therefore the duty of the board of apportionment 
 to provide therefor, and its failure to do so can- 
 not relieve the city from liability. lb. 
 
 280. Tliere being abundant power to raise 
 the money to provide for such salary, it is no 
 defense that there is no money in the treasury to 
 meet it. The act of 1866, restricting the entry 
 of judgments against the city, except upon 
 proof that the amount sought to be recovered re- 
 mains unexpended in the city treasury to the 
 
 credit of the appropriation to the specific object 
 on which the claim is founded, applies only to 
 the habilities of 1866, and the appropriations 
 therefor. lb. 
 
 281. The amount of a specific salary cannot 
 be changed by the board of apportionment 
 except by direct action on that question. lb. 
 
 282. Judgments against. Under sec. 5, ch. 
 683, Laws of 1871, no judgment can be entered 
 against the city on issues of fact, except upon 
 the verdict of a jury, consequently a judgment 
 Cannot be entered against the city, on tlie report 
 of a referee, whicU was not filed until after the 
 passage of that act. Sup. Ct., 1872, Lewenthal 
 V. Mai/or, etc. of New York, 5 Lans. 532 ; S. C, 61 
 Barb.' 511. 
 
 283. That provision is not void as being a 
 general provision in a local bill, but, if general, 
 it must prevail over the local provisions. lb. 
 
 284. The provision of sec. 6, ch. 583, Laws 
 1871, which prohibits the entry of a judgment 
 against the city of New York, other than those 
 upon issues of law, except upon verdict of a 
 jury, affected the remedy only, and does not 
 affect any vested right of a party to an action 
 tried before a referee, whose report was not 
 previously confirmed. lb. 
 
 NEW YORK COMMON PLEAS. 
 See CouBT of Coumon Fleas. 
 
 NEXT ERIEND. 
 See Pkaoiioe. 
 
 NOLLE PEOSEQtJL 
 See CiEiMiirAL law. 
 
 NON COMPOS MENTIS. 
 See CoiTTBAcis ; idiots, £0. 
 
 NON-IMPRISONMENT ACT. 
 
 1. Voluntary assignments. The statute 
 relative to voluntary assignments (2 R. S., art. 
 5, ch. 5, tit. 1), was not abolished by the non- 
 imprisonment act of 1831, but after the passage 
 of the latter act, it had only debts fraudulently 
 contracted, and on which persons could be ar- 
 rested, to act on. Sup. Ct, 1874, People ex rel. 
 Eldridge v. Fancher, 1 Hun, 27. 
 
 NONSUIT. 
 See Pbacticb. 
 
NOTARY— NUISANCE. 
 
 523 
 
 NOTARY. 
 
 As to term of office, see ch. 3, Laws of 1871. 
 
 1. Idability. A notary is not presumed to 
 be a lawyer, who is to revise or reverse the de- 
 cision of his employer as to the character of a 
 bill, and whether it is entitled to grace or not ; 
 and if he protests it according to the directions 
 given him, he is not liable, though it should be 
 upon the wrong day. Ct. App., 1872, Commercial 
 Bank of Kentucky v. Vamum, 49 N. T. (4 Sick.) 
 269 ; Eev'g S. C, 8 Lans. 86. 
 
 NOTICE. 
 
 1. By deed. The law imputes to a purchase 
 of land a knowledge of all the facts relating 
 thereto, appearing, at the time of his purchase, 
 from any of the muniments of title which it was 
 necessary for him to inspect in order to ascertain 
 the sufBciency of such title ; and if he has 
 knowledge of any fact sufficient to put a prudent 
 man upon inquiry, which, if prosecuted with 
 ordinary diligence, would lead to actual notice 
 of existing adverse equities, it is his duty to 
 make the inquiry, and whether he does or 
 not, the law will charge him with notice of such 
 equities. Com. App., 1872, Cambridge Valley 
 Bank v. Delano, 48 N. T. (3 Sick.) 326. 
 
 2. But where, by a clause in a deed, the con- 
 veyance is made subject to a mortgage which 
 the grantee assumes to pay, a purchaser from 
 such grantee is not charged with notice of any 
 outstanding equities by the mere fact that the 
 mortgage so described appears to have been dis- 
 charged of record a few days prior to the date 
 of the conveyance. lb. 
 
 3. A recital in a deed, that it is made in pur- 
 suance of a contract of sale with another party, 
 of whom the grantee is assignee and entitled as 
 such to the conveyance, is not constructive no- 
 tice to a purchaser in good faith from such 
 grantee of any existing equities under the con- 
 tract. Ct. App., 1871, Acer v. Westcott, 46 N. Y. 
 (1 Sick.) 384 ; Eev'g S. C, 1 Lans. 93. 
 
 4. The basis of constructive notice is negli- 
 gence, and there is* nothing in such a recital to 
 put a purchaser upon inquiry, or to show that 
 tlie contract is not completely executed by the 
 conveyance. lb. 
 
 5. By mortgage. Where a mortgage de- 
 scribes the premises intended to be mortgaged 
 by their correct number, but also by metes and 
 bounds which are incorrect and apply only to 
 an adjoining lot, the record of such mortgage is 
 not notice to subsequent mortgagees of the lot 
 known by that number, so as to give it prefer- 
 ence over their mortgages. Sup. Ct., 1873, 
 Thomson v. Wilcox, 7 Lans. 376. 
 
 6. By possession. Possession of property 
 is constructive notice Jb everybody of the pos- 
 sessor's interest or rights therein. N. Y. C. P., 
 1871, Graham v. Fitzgerald, 4 Daly, 178. 
 
 7. Possession of land under an unrecorded 
 deed at the time of the levy of an attachment 
 on it, as the property of the grantor, and of its 
 subsequent sale on execution in the action, is 
 notice to the purchaser at the execution sale 
 equivalent to a registry of the deed, even though 
 a lis pendens was filed in such action before the 
 deed was recorded. Sup. Ct, 1872, Lamont v. 
 Cheshire, 6 Lans. 234. 
 
 8. Possession by the judgment debtor or his 
 grantee, of lands sold on execution, after re- 
 
 demption thereof from such sale, is construc- 
 tive notice of his title, to a purchaser, after such 
 redemption, of the sheriff's certificate of sale ; 
 and the latter cannot claim as a bona fide pur- 
 chaser, although he had no actual notice of an 
 adverse title, and the sheriff's receipt of pay- 
 ment was neither acknowledged nor recorded. 
 Ct. App., 1874, Livingston v. Arnoux, 56 N. Y. (11 
 Sick.) 507. 
 
 9. Possession, to operate as notice, should be 
 inconsistent with the title. Where a mother 
 conveyed the fee of premises to her son, taking 
 back a life lease, which was not recorded for 
 several years, and in the meantime her son 
 gave a mortgage to one who had made reason- 
 able inquiries as to liens ; — Held, that her con- 
 tinued possession was not notice to the mort- 
 
 fagee of her rights. Sup. Ct., 1875, Staples v. 
 ''enton, 5 Hun, 172. 
 
 10. The occupancy that is sufficient to charge 
 a subsequent purchaser or incumbrancer with 
 notice of the occupant's rights must be open 
 and visible, and he must actually improve the 
 premises. Fencing, pasturing, or cutting timber, 
 is not sufficient for that purpose. Sup. Ct., 
 1871, Trustees of Union College v. WJteeler, 5 
 Lans. 160; S. C, 59 Barb. 585. 
 
 11. Stock issued by agent to himself. 
 The fact tliat certificates of stock issued to the 
 treasurer of a corporation are signed by the 
 president of the company and such treasurer 
 himself, is not notice to one who advances 
 money thereon that they are not regularly is- 
 sued. Sup. Ct., 1871, Titus V. Prest., etc. Great 
 Western Turnpike Road, 5 Lans. 250. 
 
 12. Notice to attorney. The rule that 
 knowledge by an attorney is knowledge by the 
 client, as to prior incumbrances, in cases where 
 the attorney is himself the borrower, has never 
 been adopted in this State. Sup. Ct., 1874, Hope 
 F. Ins. Co. V. Cambreling, 1 Hun, 493. 
 
 13. Publication of notice. A notice of sale 
 of mortgaged premises by the commissioners 
 for loaning the U. S. deposit fund, like a notice 
 of a sale by a sheriff, is regular and sufficient if 
 published once in each week for six successive 
 weeks, although there are not 42 days between 
 the first publication and the day of sale. Sup. 
 Ct., 1871, Wood V. Terry, 4 Lans. 80. 
 
 NUISANCE. 
 
 1. Acts rendering travelling unsafe. Own- 
 ers of a factory adjoining the towing path of a 
 canal, have neither a statutory, nor a common- 
 law right to eject a stream of air and dust from 
 their factory upon the towing patli in such a 
 manner as to render travelling thereon unsafe ; 
 but such act is a nuisance, and renders them 
 liable for an injury caused thereby. Sup. Ct., 
 1872, Conklin v. Phoenix Mills of Seneca Falls, 62 
 Barb. 299. 
 
 2. Bridge. Where a company incorporated 
 by a perpetual charter, autliorizing tliem to 
 erect and maintain a toll bridge over a certain 
 river, for the use of the public, and declaring it 
 unlawful for any person to erect a bridge or es- 
 tablish a ferry within two miles tliereof, has 
 erected and always maintained such bridge, an- 
 otlier toll bridge erected over the same river 
 within two miles of the former bridge, under a 
 subsequent act of the legislature, is an infringe- 
 ment of the rights of the former company, and 
 is a private nuisance. Sup. Ct., 1872, Chenango 
 Bridge Co. v. Lewis, 63 Barb. 111. 
 
524 
 
 NUISANCE. 
 
 8. One who as contractor under the company 
 building such second bridge, of which he was 
 then a stockholder and afterward a director, 
 erected such bridge and kept it in repair until it 
 was swept away by a flood, is liable to the for- 
 mer company for the damages caused to it by 
 the latter bridge, including both the diversion 
 of the tolls, and the destruction of its bridge by 
 reason of the other bridge being carried against 
 it. His personal representatives are also lia- 
 ble therefor after his decease. lb. 
 
 4. Where the nuisance is not the structure it- 
 self, but the illegal use of it, the liability there- 
 for attaches not only to those who are engaged 
 in the use, but also to those who erected the 
 structure with the knowledge, or the intent, 
 that it should be put to such illegal use. lb. 
 
 6. Change of 'water-course. If commis- 
 sioners of highways so change the course of 
 water by a sluiceway crossing and draining a 
 highway, as to turn it upon the cultivated lands 
 of an adjoining owner so as to injure or destroy 
 them, they thereby create a private nuisance ; 
 and the party injured may peaceably abate it. 
 Sup. Ct., 1872, Thompson v. Allen, 7 Lans. 459. 
 
 6. The party injured, in such a case, is not 
 confined for his remedy to an action against the 
 commissioners, but may prove that such diver- 
 sion of the waters produced such injury as a 
 defense to an action for obstructing the sluice, 
 lb. 
 
 7. Chemical 'works. The conducting of a 
 chemical factory in such a manner that a sul- 
 phurous gas escapes and is occasionally borne 
 by the winds to dwellings in the neiglibor- 
 hood, compelling tlie closing of windows, irri- 
 tating the throats of those who breathe it, and 
 destroying vegetation in gardens, is a nuisance, 
 which will be restrained by injunction. Brook- 
 lyn City Ct., Sp. T., 1872, Mulligan v. Elias, 12 
 Abb. N. S. 259. 
 
 8. Tlie fact that such gas has a tendency to 
 neutralize malaria existing in the vicinity does 
 not make it any the less a nuisance. lb. 
 
 9. Even where other manufactories have ex- 
 isted for many years, causing serious annoyance 
 to the inhabitants, the introduction of a new 
 element, making a material addition to Such 
 annoyance, is a nuisance. The case of a place 
 where the other manufactories are so numerous 
 that " one more would not add sensibly to the 
 discomfort," is an exception to the general 
 rule. lb. 
 
 10. The fact that the nuisance existed before 
 the plaintiff acquired his property or built his 
 house, will not prevent relief against it, unless, 
 at least, its continuance long enough to establish 
 a prescriptive right is shown. lb. 
 
 11. An encroachment upon a highway is 
 not a public nuisance, if it is such that no one is 
 thereby incommoded in using the highway. 
 Thus, asign in the form of a triangiJar box, 
 placed around a telegraph pole close to the 
 curbstone is not necessarily a public nuisance 
 N. Y. C. P. Sp. T., 1872, Goldsmith v. Jones, 48 
 How. 415. 
 
 12. Flag pole. One whose land is bounded 
 by the street line is under no obligation to re- 
 move a flag pole not erected by him, which is 
 decayed so as to be a nuisance, although it stands 
 in the sidewalk nearest his premises, and is not 
 responsible for an injury caused by its fall with- 
 out negligence on his part. Ct. App., 1875, Eng- 
 lish V. Brennan, 60 N. Y. (15 Sick.) 609. 
 
 18. Gas 'Works. If a company authorized 
 by the legislature to manufacture gas for light- 
 ing city streets, buildings, &o., employs in carry- 
 
 ing on its business buildings and processes of 
 the best kind, careful servants, and due skill 
 and diligence, it is not liable to indictment for 
 creating a nuisance by unwholesome smells, &c., 
 the people being barred from public complaint 
 by the action of the legislature. Sup. Ct., 1872, 
 People V. President, etc. of N. Y. Gas-Light .Co., 6 
 Lans. 467 ; S. C, 64 Barb. 55. 
 
 14. It seems, an individual might maintain a 
 suit against the company for a special injury to 
 himself. lb. 
 
 15. Idme kiln. The use of lime kilns, erected 
 by the owners upon their own premises, in close 
 proximity to the residence of another, in such a 
 manner as to pollute the air and disturb the com- 
 fortable occupation and enjoyment of his prem- 
 ises by the latter, by reason of the smoke, gas 
 and dust issuing from them, which, when inhaled 
 by persons of sensitive lungs, were unpleasant 
 and uncomfortable, as well as detrimental to 
 health, is a private nuisance ; and the owner of 
 such premises can maintain an action to restrain 
 the continuance thereof, and to recover damages 
 for past injuries. Sup. Ct., Sp. T., 1872, Sut- 
 chins V. Smith, 63 Barb. 251. 
 
 16. Obstruction of harbor. An obstruction 
 in a harbor which renders navigation less con- 
 venient or safe than formerly is a nuisance, and 
 it is no defense to an action therefor, that the 
 public inconvenience is counterbalanced by the 
 benefit to be afforded by it. Sup. Ct., 1875, 
 People v. Hortan, 5 Hun, 516. 
 
 17. Whether any given encroachment upon a 
 public or private right is a nuisance or not, is a 
 question of fact, to be established by proof. lb. 
 
 18. The mere presence of a floating elevator 
 in the harbor of Buffalo, for use in unloading 
 velsels that are Aground or disabled, and also for 
 transferring cargoes of grain from propellers, 
 &c., to canal boats, is not an unlawful encroach- 
 ment thereon, nor does the confining of its use 
 mostly to a particular locality in the ship canal 
 make it such, unless it produces a material 
 obstruction to the free and common use thereof 
 by other vessels. lb. 
 
 19. — to natrigable stream. Persons navi- 
 gating a public navigable stream for commer- 
 cial purposes, and using it as a highway for 
 vessels, have the primary and paramount right 
 to it, and every interference-with or obstruction 
 of the navigation, or hindrance to the free pas- 
 sage of vessels upon it, is prima facie a nuisance 
 and unlawful. Ct. App., 1875, Blanchard v. 
 
 Western Union Tel. Co., 60 N. Y. (16 Sick.) 610. 
 
 20. Telegraph cables so laid or suspended in 
 the water as to catch upon the keels, or come in 
 contact with vessels navigating the stream, hav- 
 ing such draught as the depth of water will per- 
 mit, and which, but for such cat les, would pass 
 without difiiculty or interruption, are improperly 
 placed and do injuriously interrupt navigation, 
 thus violating the condition annexed to the 
 permission given by statute (sec. 6, ch. 265, 
 Laws of 1848), to construct telegraph lines across 
 the navigable waters of the State. lb. 
 
 21. A prima facie case of an unlawful ob- 
 struction of navigation is established by proof 
 that a vessel, in all respects adapted to the nav- 
 igation of a river, and requiring less depth of 
 water than other vessels passing over the same 
 point without grounding, has come in contact 
 with a telegraph cable and received injury. lb. 
 
 22. The fact that on other occasions vessels 
 had touched the cable without injury, did not 
 impose upon navigators the duty of changing 
 the structure of their vessels, or feeling their 
 way to avoid a collision. lb. 
 
NUNCUPATIVE WILL— OFFICE AND OFFICER. 
 
 525 
 
 23. Nor 1b the fact that the iron on the keel of 
 the colliding vessel, which was caught by the 
 cable, was loose, any justification to the tele- 
 graph company, if it was not so loose as to 
 interfere with the cable when properly laid. lb. 
 
 24 Post holes dug in a street are a public 
 nuisance, although in a part of it not used, nor 
 susceptible of use by the public by reason of 
 natural obstructions therein. Sup. Ct., 1866, 
 Wright v. Saunders, 65 Barb. 214. 
 
 26. Continuance. A grantee of lands on 
 which a nuisance had been erected by another 
 before the conveyance to himself, cannot, with- 
 out previous notice or knowledge of its existence, 
 be held liable for damages subsequently result- 
 ing therefrom, during the continuance of his 
 ownership, but a request to abate is not neces- 
 sary before action brought. Com. App„ 1873, 
 ConAocton Stone Road v. Buffalo, N. Y. ^ Erie 
 R. R. Co., 61 N. Y. (6 Sick.) 573 ; Kev'g S. C, 62 
 Barb, 390. S. P., AfiUer y. Church, 5 Hun, 342. 
 
 26. The original wrong-doer, notwithstanding 
 the alienation, remains liable for the damages 
 occasioned by the continuance of the nuisance 
 subsequent to the conveyance. lb. 
 
 27. Abatement. No private person has a right 
 to remove an obstruction in a public street or 
 highway merely because it is a public nuisance. 
 He can do so only when, in addition to the in- 
 jury he sustains in common with his fellow-citi- 
 zens, it does him some special injury. N. Y. C. P., 
 Sp. T., 1872, Goldsmith y. Jones, 43 How. 416. 
 
 28. Even in that case, he can only interfere 
 with the obstruction so far as necessary to exer- 
 cise his right of passing along the highway, and 
 he cannot justify doing any damage to the prop- 
 erty of the person who improperly placed it in 
 the highway. lb. 
 
 29. Where the occupant of a store placed a 
 triangular box, seven feet high and projecting 
 about two feet and one-half from the curbstone, 
 around a telegraph pole standing partly in front 
 of the adjoining store, and caused their names 
 and business to be painted upon it, using it as a 
 sign, — Seld, that the occupant of the adjoining 
 store could not justify their act of painting out 
 such sign, either as an abatement of an obstruc- 
 tion to the street, or of one specially injurious to 
 themselves in misdirecting customers to their 
 shop. lb. 
 
 30. A power given to a municipal body to 
 abate nuisances in any manner it may deem ex- 
 pedient, is not unlimited, but such means only 
 are autliorized as are necessary for the public 
 good, and no wanton or unnecessary injury to 
 the property or rights of individuals must be 
 committed. Ct. App., 1874, Babcoch v. City of 
 Buffalo, 56 N. Y. (11 Sick.) 268. 
 
 31. Accordingly, held, that the filling up of a 
 canal by the common council of a city, on ac- 
 count of an alleged nuisance therein, which, it 
 appeared, arose from their own failure to ex- 
 ercise the powers conferred upon them by 
 charter to preserve such canal by preventing 
 the casting into it of obstructions and filth, and 
 to remove obstructions therefrom, and which 
 could have been otherwise abated at small ex- 
 pense and without injury to adjoining property, 
 was not a proper exercise of the power to abate 
 nuisances, and might be restrained by injunc- 
 tion, lb. 
 
 82. Action to abate. Under the Code, sees. 
 463, 464, the remedy in cases of private nuisance 
 is by action, and not by writ ; and such action, 
 if brought to abate the nuisance, must be 
 against the owners in fee, and the plaintiff 
 must allege that he was the owner in fee of the 
 
 property affected by the nuisance, at the time 
 of the acts complained of. Sup. Ct., Sp. T., 
 1872, Hutchina v. Smith, 63 Barb. 261. 
 
 33. Such an action is one in equity, and in it 
 the plaintiff may ask for and obtain a perpetual 
 injunction to restrain the defendants from so 
 using their property as to disturb and prevent 
 the comfortable enjoyment of his premises, and 
 to recover damages as incidental to such equit- 
 able relief. lb. 
 
 34. Action for damages. Any one who has 
 sustained special damage in consequence of a 
 nuisance erected by anotlier, may maintain an 
 action therefor, no matter how numerous the 
 persons may be who have sustained like pecu- 
 liar damages. Ct. App., 1873, Francis v. Schoell- 
 kopf, 53 N. Y. (8 Sick.) 152. 
 
 NUNCUPATIVE WILL. 
 See Wills. 
 
 OBJECTIONS. 
 See Pbaotice. 
 
 OBSCENE LITEBATUEE. 
 
 Suppression of, see ch. 747, Laws of 1872 ; ch. 777, 
 Laws of 1873. 
 
 OFFER OF JUDGMENT. 
 See Fbacticb. 
 
 OFFICE AND OFFICER 
 
 1. 'Who is an ofScer. The true test to dis- 
 tinguish officers from simple servants or em- 
 ployes, is in the obligation to take the oath 
 prescribed by law. Sup. Ct., 1875, Collins v. 
 Mayor, etc. of New Yoi-k, 3 Hun, 680. 
 
 2. Board of auditors. The persons ap- 
 pointed by ch. 382, Laws 1870, to audit certain 
 accounts against the city of New York, were 
 entrusted with a public duty of importance and 
 responsibility, and were therein denominated 
 officers, and were officers, within the meaning 
 and intent of sec. 124 of the Code. Sup. Ct., 
 Sp. T., 1872, People v. Tweed, 13 Abb. N. S. 419. 
 
 3. Commissioners to receive and expend 
 moneys raised by tax for the construction of a 
 public highway, with power to take private 
 property therefor on making compensation, are 
 officers, within the meaning of sec. 1, art. 10, of 
 the constitution, and the election of such a com- 
 missioner to another public office, and its accept- 
 ance by him, vacates his office as commissioner, 
 Ct. App., 1871, People ex rel. Henry v. Nostrand, 
 46 N. Y. (1 Sick.) 375. 
 
 4. De facto o£Bcer. To constitute a person 
 an officer de facto, he must not only exercise the 
 duties of the office claiming title thereto, but 
 such claim must be under color of right, by vir- 
 tue of an appointment or election to that office. 
 Sup. Ct., 1871, Rochester ^ Gen. Val. R. R. Co. v. 
 Clarke Nat. Bank, 60 Barb. 234. 
 
526 
 
 OFFICE AND OFFICER. 
 
 5. In order to sustain the acts of officers de 
 facto, there must be at least a presumption that 
 
 they are rightfully in office ; and such presump- 
 tion cannot exist after the decision of a com- 
 petent tribunal to the contrary, in a direct pro- 
 ceeding to determine the title to an office. lb. 
 
 6. A person appointed collector of a school 
 district by the sole trustee thereof, by parol 
 merely, is not such officer de jure, but upon his 
 execution of a proper bond, its approval by the 
 trustee and delivery to him of a tax warrant, 
 lie is an officer de facto, and his acts are binding 
 upon the public and third parties. Sup. Ct., 
 Sp. T., 1871, Hamlin v. Dingman, 41 How. 132 ; 
 Affd, S. C, 5 Lans. 61. 
 
 7. The title of such officer cannot be inquired 
 into collaterally, but it may be directly by quo 
 warranto; and it may also be questioned in a suit 
 against him for an act which he can only justify 
 as an officer. lb. 
 
 8. The acts of such de facto officer protect the 
 person appointing him and purchasers at a tax 
 sale made by him. S. C, 6 Lans. 61. 
 
 9. A judge, presiding over a State court in 
 one of the insurrectionary States during the 
 civil war, though he had taken an oath to sup- 
 port the rebel government, was an officer de 
 facto, and his acts done in his judicial capacity 
 cannot be collaterally called in question. Ct. 
 App., 1871, Pepin v. Lachenmeyer, 45 N. Y. (6 
 Hand,) 26. 
 
 10. The acts of police justices, who, if not such 
 de jure, are such de facto, with color of title, 
 must be obeyed and respected until judgment 
 of ouster is pronounced against them, and their 
 right to act cannot be called in question upon 
 certiorari to review a judgment rendered by 
 them. Sup. Ct., 1874, Coyle v. Sherwood, 1 Hun, 
 272. 
 
 11. Appointment. An appointment to office, 
 in pursuance of a power conferred by statute 
 upon the officer or body making it, needs no 
 deed or writing to make it valid, unless the 
 statute prescribes that formality. Sup. Ct., 1875, 
 People ex rel. Babcock v. Murray, 5 Hun, 42. 
 
 12. Commissioners of excise may be appoint- 
 ed, under ch. 175, Laws of 1870, by parol. A 
 nomination to that office by the mayor of a 
 city, at a meeting of the common council, and 
 the vote of the council concurring therein, is 
 sufficient. lb. 
 
 13. When hold over. Elective officers do 
 not hold over until their successors are chosen 
 and qualified. The provisions of the Revised 
 Statutes on this subject relate only to persons 
 holding by appointment. Ct. App., 1871, People 
 ex rel. Fowler v. Bull, 46 N. Y. (1 Sick.) 57. 
 
 14. Failure to qualify. Under the provisions 
 of 1 R. S. 121, sec. 31, that " if any person shall 
 execute any of tlie duties or functions of any 
 office without having taken and subscribed the 
 oath of office, or without having executed and 
 filed in the proper office any bond required by 
 law, he shall forfeit the office to which he may 
 have been elected or appointed," the office 
 does not become ipso facto vacant upon the fail- 
 ure of the officer to take the oath or file the 
 bond, but there must be a direct judicial or 
 other autliorized proceeding by the proper 
 authority to enforce the forfeiture, and until the 
 forfeiture is judicially declared he is in office 
 and his acts are valid. Com. App., 1874, Foot 
 V. Styles, 57 N. Y. (12 Sick.) 399. 
 
 15. The failure of a commissioner of highways 
 to execute and file the official bond required by 
 statute, is a groimd of forfeiture, but does not 
 make his office ipso facto vacant, nor make him 
 
 liable as a trespasser for official acts, such as 
 the removal of obstructions from a highway. 
 He is not simply an officer de/ac<o, but holds by 
 a defeasible title, and is rightfully in office until 
 a forfeiture is judicially declared by the proper 
 authority, at least so far as the rights of third 
 persons are concerned, and his rights cannot be 
 questioned collaterally. lb. 
 
 16. Where bonds are required of officers be- 
 fore entering upon the discharge of special 
 duties imposed on them by law, their neglect to 
 execute such bonds is good cause for reversing 
 tlieir proceedings on review by certiorari. Sup. 
 Ct., 1875., People ex rel. Andrews v. Board of 
 Sups, of Erie Co., 5 Hun, 120. 
 
 17. Incompatible offices cannot be held by 
 one person at the same time, but by accepting 
 a second office which is incompatible with one 
 already held by him, whether inferior or supe- 
 rior thereto, he vacates the first. N. Y. C. P., 
 Sp. T., 1873, People ex rel. Ryan v. Grem, 46 
 How. 169; Aff'd, S. C, 58 N. Y. (13 Sick.) 295. 
 
 18. Offices may be said to be incompatible so 
 that they cannot be executed by the same per- 
 son ; 1st. When, from the multiplicity of busi- 
 ness in them, they cannot be executed with due 
 care and ability ; or, 2d, When they have such 
 a relation to each other of subordination or in- 
 terference as induces a presumption that they 
 cannot be executed with impartiality and hon- 
 esty, lb. 
 
 19. The office of member of Assembly is not 
 incompatible with that of clerk of the Special 
 Sessions of the nity and county of New York, 
 and the acceptance of the former office by tlie 
 incumbent of the latter did not, prior to tlie 
 act of 1873, operate to vacate the latter office, 
 lb. 
 
 20. The provision of the city charter of 1873 
 (sec. 114, ch. 335), making the acceptance of a 
 seat in the Legislature by a city officer a vaca- 
 tion of his office, was prospective merely. lb. 
 
 21. Compensation. A salaried officer is 
 not entitled to extra compensation when a new 
 duty is imposed upon him by law, when no pro- 
 vision therefor is made by such law. Sup. Ct., 
 1875, Cowan v. Mayor, etc. of New York, 3 Hun, 
 622. S. P., Oakley v. Mayor, etc. of New York, 4 
 Hun, 72. 
 
 22. Tlie provisions of see. 2, ch. 366, Laws of 
 1859 (4 Edm. Stats. 252), requiring the superin- 
 tendent of insurance to appoint one of his clerks 
 to be his deputy, and conferring upon such 
 deputy all the powers of his principal in case of 
 the absence or inability of the latter to act, or of 
 a vacancy in the office, make such deputy, in case 
 of a vacancy, the acting superintendent, and his 
 acts, to all intents and purposes, those of the 
 superintendent ; and while so acting he is en- 
 titled to the salary and emoluments of tlie office. 
 Ct. App., 1873, People ex rel. Church v. Hopkins, 55 
 N. Y. (10 Sick.) 74. 
 
 23. A resolution of the trustees of a staiC 
 institution appointing a superintendent, fixing 
 his salary, and providing that " payment " of 
 the same shall " commence as soon as an appro- 
 priation is made by the Legislature," does not 
 postpone the commencement but only the pay- 
 ment of the salary, ui)til an appropriation there- 
 for. Ct. App., 1874, People ex rel. Churchman v. 
 Board of Trustees of the Neio York State Institution 
 for the Blind, 58 N. Y. (13 Sick.) 664. 
 
 24. A receipt " on account or salary, as per 
 allowance of the board " for a certain sum less 
 than the appointed salary, appropriated by 
 such trustees " for the payment of salary upon 
 the present term," does not preclude the incum- 
 
• OFFICE AND OFFICER. 
 
 527 
 
 bent from claiming the full compensation to 
 which he is entitled. lb. 
 
 25. The acquiescence of such incumbent in k 
 resolution of the board of trustees, discontinuing 
 his salary after its date, for lack of an appro- 
 priation, by the presentation to them of an ac- 
 count for salary to that time, omitting any claim 
 for subsequent services, precludes him from re- 
 covering for such services. lb. 
 
 Majority, when may act. See ch. 321, Laws of 
 
 26. Personal liability. A public officer, 
 not judicial, such as a highway commissioner, 
 who in his office acts carelessly or negligently, or 
 who, contrary to his duty, refuses or omits to 
 act, is answerable in damages to any one who is 
 specially injured thereby. Com. App., 1870, 
 Hover v. Barkhoof, 44 N. Y, (5 Hand,) 113. 
 
 27. A ministerial officer, charged by statute 
 with an absolute and certain duty, in the perfor- 
 mance of which an individual has a special in- 
 terest, is liable to an action by the latter if he 
 refuses and omits to perform it ; and the fact 
 that his refusal is based on an honest conviction 
 that the law is unconstitutional will not affect 
 his liability. Com. App,, 1874, Clark v. Miller, 
 54 N. Y. (9 Sick.) 528. 
 
 28. An officer is not bound to serve a writ of 
 attachment, issued by a justice of the peace 
 upon an application which does not show the 
 facts essential to confer jurisdiction, and is not 
 liable for a neglect to do so. Sup. Ct., 1871, 
 Garrison v. Marshall, 44 How. 193. 
 
 29. An action will lie against a sheriff for 
 negligence in allowing an escape through entire 
 failure to execute a writ gf ne exeat, and no pre- 
 vious application to the court for leave to prose- 
 cute is necessary. Sup. Ct., 1870, Beckwiih v. 
 Smith, 4 Lans. 182. 
 
 30. Public officers with quasi public trusts, in 
 the discharge of which private persons are in- 
 terested, under laws creating the obligation of 
 contracts, are answerable, each in his own time, 
 only for his own discharge of duty, and they 
 cannot be charged for the misconduct of their 
 predecessors. Com. App., 1873, Vose v. Beed, 54 
 N. Y. (9 Sick.) 657. 
 
 31. Assessors have no jurisdiction to assess 
 a person for personal estate unless he is a resi- 
 dent of the town in which they are officers, and 
 if they do they are personally liable to the party 
 assessed for the damage sustained by him there- 
 from. Com. App., 1874, Dorwin v. Strickland, 57 
 N. Y. (12 Sick.) 492. S. P., Dorn v. Fox, 6 Lans. 
 162 ; Palmer v. Lamrence, id. 282. 
 
 32. Thus school district trustees who errone- 
 ously decide that a person who has temporarily 
 taken up his abode in their district is assessable 
 as an inhabitant, and assess him for school pur- 
 poses, are liable for the sale of his property 
 under their warrant for the collection of the tax. 
 lb. 
 
 33. Assessors act in a judicial capacity in de- 
 termining whether the owner of a farm, the 
 greater part' of which, with the principal dwel- 
 ling house thereon, lies in tlieir town, is to be 
 assessed for such farm in that town; and an 
 action will not lie against them to recover back 
 taxes assessed by them upon such farm, although 
 it appears that, when such taxes were assessed, 
 he actually lived in a building on a portion of 
 the farm lying in the adjoining town. Sup. Ct., 
 1872, Dorn v. Backer, 61 Barb. 597. 
 
 34. Assessors are not liable, as wrong-doers, 
 for erroneously deciding that shares of national 
 
 banks are liable to taxation, the question of 
 their liability being a judicial one, of which 
 they have jurisdiction, and one upon which the 
 highest courts have differed. It makes no dif- 
 ference, to their jurisdiction, whether tlie im- 
 munity is by State or national law. Ct. App., 
 1867, Foster v. Van Wyck, 41 How. 493. 
 
 85. A judge of a court of record is not 
 civilly liable for any error of judgment he may 
 commit, although it may be intentional. Sup. 
 Ct, 1872, Miller v. Adams, 7 Lans. 131. 
 
 36. A court or officer of inferior jurisdiction is 
 liable to the party injured when he or it acts 
 without having jurisdiction of tlie subject-mat- 
 ter, and of the person of the party proceeded 
 against, unless the question whether jurisdiction 
 is acquired is a judicial one, tol)e determined by 
 such court or officer ; in which case his decision 
 of that question is a protection to him or it and 
 to the party. lb. 
 
 87. When tlie evidence presented to the court 
 or officer has a tendency to prove the facts re- 
 quired to be proved to confer jurisdiction, the 
 decision protects the court or officer, and also the 
 party. lb. 
 
 38. La'wful acts. In an action against a public 
 officer for acts done by liim as such, the first in- 
 quiry is whether those acts were lawful. If un- 
 lawful, the motives whicli actuated him may, in 
 many cases, operate upon the question of dam- 
 ages, but those motives can rarely be a subject 
 of inquiry where the acts were done in exercise 
 of a clear legal right. Sup. Ct., 1871, Moran v. 
 McCleams, 41 How. 289 ; S. C, 4 Lans. 288 ; 60 
 Barb. 388. 
 
 39. When protected. An officer is protected 
 in the execution of process, if it be such as the 
 court or officer issuing it has general jurisdiction 
 to issue in proper cases. To render him liable 
 on account of a want of jurisdiction, the defect 
 must appear upon the face of the process. Sup. 
 Ct., 1875, Field v. Parker, 4 Hun, 342. 
 
 40. A warrant which shows a case within the 
 jurisdiction of the justice who issued it, will 
 protect the officer executing it, although it does 
 not recite a legal offense. Sup. Ct., 1875, Smith 
 V. Warden, 4 Hun, 787. 
 
 41. Where an execution, although really is- 
 sued upon a transcript from a justice's judgment 
 purports upon its face to issue upon a judgment 
 of the county court, it will protect the officer ex- 
 ecuting it, though signed only by the attorney 
 for the creditor, and not by the clerk as required 
 by sec. 64 of the Code. Com. App., 1873, Hill 
 V. Haynes, 54 N. Y. (9 Sick.) 153. 
 
 42. Where^after property is levied upon, it is 
 removed by the execution debtor into another 
 county, the sheriff may follow and retake it, if 
 he can do so peaceably and without force ; and 
 when so retaken, he will be justified in using 
 such force as may be necessary to repel any at- 
 tempts to deprive him of it, but he has no author- 
 ity, as sheriflf, and would not be justified in 
 using force to retake such property, outside his 
 own county. lb 
 
 43. In executing process in an action under 
 the Code to recover possession of personal prop- 
 erty, a sheriff is not protected, save in taking 
 the property specified from the possession of the 
 defendant named ; but wtiere the actual posses- 
 sion remains in such defendant, although there 
 has been a change of title, and constructive pos- 
 session has been given to the assignee, the pro- 
 cess is a protection. Ct. App., 1872, Bullis v. 
 Montgomery, 50 N. Y. (5 Sick.) 352. 
 
 44. Suit by. A constable wlio seizes prop- 
 erty of a non-resident defendant, under a valid 
 
528 
 
 OPINIONS— PARENT AND CHILD. 
 
 attachment, issued under sec. 33 of the non-im- 
 prisonment act, and subsequently levies upon it 
 by virtue of an execution in the attachment suit, 
 has such a lien thereon as will enable him to 
 maintain a suit for the value of such property 
 against anotlier creditor who appropriates it by 
 virtue of a lien acquired subsequent to the at- 
 tachment, provided he properly served and re- 
 turned the attachment. Sup. Ct., 1862, Stone v. 
 Miller, 62 Barb. 430. 
 
 OPINIONS. 
 See EviDBucE. 
 
 ORDERS. 
 See Peaotiob. 
 
 OVERSEER OF HIGHWAYS. 
 See Highways. 
 
 OVERSEER OF POOR. 
 
 See PooE. 
 
 As to duties in respect to lunatics, see ch. 440, Laws 
 . 0/1874. 
 
 OYER AND TERMINER. 
 
 1. Organization. The act of 1870 (ch. 137, 
 Laws of 1870), reorganizing the local government 
 of the city of New York, though in terms repeal- 
 ing chapters 217 and 362, Laws of 1853. and 446, 
 Laws of 1857, was not intended to affect the or- 
 ganization of the Court of Oyer and Terminer as 
 therein established ; and a justice of the Su- 
 preme Court may still, notwithstanding that act, 
 hold that court alone without associates. Ct. 
 App., 1872, Smith v. People, 47 N. Y. (2 Sick.) 
 330. 
 
 2. The provisions of the act of 1847, relating 
 to the organization of such courts, were not su- 
 perseded by the Code of' 1848, but sec. 17 of the 
 former and sec. 24 of the latter provided merely 
 for assigning their duties to the several justices 
 of the Supreme Court. lb. 
 
 8. Jurisdiction. Where tlie Court of Ses- 
 sions ordered an indictment found in that court 
 to be sent to the Court of Oyer and Terminer 
 for trial, and the clerk entered on the indict- 
 ment as follows : " Trial of indictment to go over 
 to next Court of Oyer and Terminer," but did 
 not make such an entry in his minutes until the 
 opening of the trial in the latter court, — Held, 
 that the order was valid, although not actually 
 entered during the session of the court ; that the 
 entry on the indictment constituted part of the 
 record ; and that the Com:t of Oyer and Terminer 
 had jurisdiction of the case. Sup. Ct., 1874, 
 People v. Myers, 2 Hun, 6. 
 
 4. Po'wrera of judge. The presiding justice 
 at the Oyer and Terminer has no authority to 
 discharge a jury in the absence of his associates. 
 The only thing he can do, in their absence, 
 
 touching the business of the court, seems to be 
 to take recognizances and bail. Sup. Ct., 1871, 
 People v. Beagle, 60 Barb. 527. 
 
 5. An order made by a judge, while holding a 
 Court of Oyer and Terminer, for the discharge 
 of a person from imprisonment on execution, 
 which is signed by him but not entered, and 
 bears a caption as follows ; " At a Special Terra 
 of the Supreme Court and of the Oyer and Ter- 
 miner," is to be deemed an order of the court of 
 Oyer and Terminer, and, as such is invalid. Sup. 
 Ct. 1872, People ex rel. Hewlett v. Brennan, 61 
 Barb. 540. 
 
 6. That court is solely a court of criminal ju- 
 risdiction, and it has no power to discharge a per- 
 son held in custody on civil process, except that 
 which it or any other court can exercise on his 
 being brought before it by habeas corpus. lb. 
 
 7. Jury. The act autliorizing the governor to 
 appoint Special Terms of the Court of Oyer and 
 Terminer (sec. 14, ch. 408, Laws 1870), does not 
 shorten the prescribed period that must inter- 
 vene between the drawing of the jury and the 
 session of the court ; and, therefore, a challenge 
 to the array on the ground that the names of 
 the jurors were not drawn 14 days before the 
 holding of the court, is proper, and should be 
 sustained. Sup. Ct., 1875, Powell v. People, 5 
 
 Hun, 169 ; AfE'd by Ct. App. 
 
 PARENT AND CHILD. 
 
 1. Custody. A father is prima facie enti- 
 tled to the custody of liis minor children, as 
 against the mother ; and upon dismissal by con- 
 sent of a writ of habeas corpus sued out by lier 
 to obtain their custody, they may properly be 
 remanded to the custody of the fatlier, although 
 that is not necessary to restore his parental au- 
 thority. Sup. Ct. Chambers, 1872, In matter of 
 Viele, 44 How. 14. 
 
 2. If the mother afterward improperly obtains 
 possession of a child and flees witli it to a 
 foreign country, she thereby renounces all right 
 which she would otherwise have to apply to the 
 court for relief in the premises. Ih. 
 
 3. The mother, after the death of the father, 
 is entitled to the custody and control of the ser- 
 vices of her minor cliildren. Alle^ arid Fol- 
 GEK, JJ., dissent. Ct. App., 1874, Furman v. 
 Van Sise, 56 N. Y. (11 Sick.) 435. S.P., Simpson 
 V. Buck, 5 Lans. 337. 
 
 4. The mother of a minor has the same right 
 to his services, after the death of his fatlier, as 
 the latter would have wliile living, and can 
 maintain an action for such services rendered to 
 a third party. Sup. Ct., 1871, Simpson v. Buck, 
 5 Lans. 337. 
 
 5. The fact that such minor contributed to 
 the support of the mother, does not deprive her 
 of that right. lb. 
 
 6. Bounty certificates. Wliere a minor, on 
 enlisting and being mustered into the military 
 service to the credit of a certain town, with the 
 consent of his father, given upon tlie expi-ess 
 condition that the bounty certificates to be 
 issued by the town should be delivered to him 
 for his own use, directed that they should be so 
 delivered and paid to his father, — Held, that the 
 father upon such delivery was the equitable 
 owner of the certificates, and after payment to 
 him or his assignee, the son could not maintain 
 an action against the town for the amount. Ct. 
 App., 1872, Brown v. Town of Canton, 49 N. Y. 
 
 I (4 Sick.) 663 ; Rev'g S. C, 4 Lans. 409. 
 
PARTICULARS, BILL OF— PARTITION. 
 
 529 
 
 7. Liability of parents. A parent is not 
 liable for purchases made by his minor child, 
 except upon proof that they were necessaries, and 
 that he has failed to discharge his obligation to 
 provide necessaries, or that he has ratified the 
 purchase. Sup. Ct., 1875, Smith v. Church, 5 
 Hun, 109. 
 
 PARTICULARS, BILL OF 
 See PfiACTiCE. 
 
 PARTIES TO ACTIONS. 
 See Actions. 
 
 1. In equity. It is the principle of courts 
 of equity in cases of breach of trust, where no 
 general rule or order of the court interferes, and 
 when the facts of the case call for contribution 
 or a recovery over, that all persons who should 
 be before the court to enable it to make com- 
 plete and final judgment, are necessary parties 
 to the action. Ct. App., 1873, Sherman v. Parish, 
 53 N. Y. (8 Sick.) 483. 
 
 2. Nor has this rule been abrogated by the 
 mode of procedure under the Code. lb. 
 
 8. Administrators. The administrators of 
 a deceased vendor of land, are necessary parties 
 to an action to enforce specific performance of 
 his contract, and sliould be joined with the heir ; 
 but where the defect appears upon the face of 
 the complaint, the objection, unless taken by 
 demurrer, will be deemed to have been waived. 
 Com. App., 1872, Potter v. EUice, 48 N. Y. (3 
 Sick.) 321. 
 
 4. Personal representatives of a deceased ad- 
 ministratrix are indispensable parties to an action 
 to obtain an account of the personal estate which 
 came to her hands as such. Sup. Ct., 1871, 
 Silsbee v. Smith, 41 How. 418 ; 60 Barb. 372. 
 
 5. In an action to set aside sales of real estate 
 of a deceased person, made by such adminis- 
 tratrix by order of the surrogate, for the pay- 
 ment of debts, in which such an accounting is 
 sought, those defendants who are in possession 
 of the lands sold are interested in having such 
 representatives made parties, to the end that it 
 may be shown whether there were debts of the 
 deceased unpaid at the time the order was made, 
 lb. 
 
 6. Cestuis que trust. In an action by one 
 who has made improvements under contract 
 with a husband and his wife, upon real estate 
 devised by the father of the wife to her hus- 
 band, in trust to apply the income thereof to 
 her benefit during life, and then to the support 
 and education of her children, until they should 
 become of age, when the same should be divided 
 among such children, seeking to charge the real 
 estate with the improvements, on the ground 
 that by fraudulent proceedings on the part of 
 the defendants the title in fee had been conveyed 
 to the wife, and that the plaintiffs were induced 
 to enter into the contracts by the belief that the 
 defendants were owners, — Held, that the infants 
 were necessary parties defendant. N. Y. Supr. 
 Ct., Sp. T.,1875, McDonald v. Frazier, 49 How. 320. 
 
 7. Corporation. In an action brought by a 
 stockholder of a corporation, to recover its 
 property and assets, claimed to have been ille- 
 galfy or fraudulently disposed of or converted 
 by the trustees or directors, where the corpora- 
 tion itself has declined to bring the action, it is 
 
 84 
 
 a necessary party defendant. Its directors are 
 not necessary or proper parties, unless a personal 
 claim is made against them. Sup. Ct., Sp. T., 
 1875, Allen v. New Jersey Southern R. R, Co., 49 
 How. 14. 
 
 8. Husband. A husband is not a necessary 
 party defendant in an action against his wife for 
 a fraud, committed by hinl as her agent, in the 
 sale of real estate belonging to her separate 
 property. Ct. App., 1872, Baum v. Mullen, 47 
 N. Y. (2 Sick.) 677. 
 
 9. Joint debtor. Where one of two joint 
 debtors conveyed away certain of his property 
 with intent to defraud their common creditor, — 
 Held, that the other was neither a necessary 
 nor proper party defendant to an action by such 
 creditor to set aside the conveyance. Com. 
 App., 1873, Fox V. Mayer, 54 N. Y. (9 Sick.) 125. 
 
 10. Where both judgment debtors were at the 
 time residents of the county where judgment 
 was rendered and execution issued, it was im- 
 material whether or not such other joint debtor 
 had left the county, or was solvent at the time 
 the creditor's action was commenced. lb. 
 
 11. Mortgagor. Neither a mortgagor, who 
 has parted witli the equitj' of redemption of tlie 
 mortgaged premises, nor his wife who never 
 executed the mortgage, the sale being made 
 expressly subject to her inchoate right of dower, 
 is a necessary party to a motion by the pur- 
 chaser at a foreclosure sale, to set aside the sale 
 for defect of title. N. Y. Supr. Ct., 1875, Schmal- 
 holz V. Polhans, 49 How. 59. 
 
 12. Purchaser. In an action to enforce 
 specific performance of a contract for the sale 
 of land, a person with whom the vendor has 
 made a second contract for the sale of the same 
 land is a necessary party defendant. Sup. Ct., 
 1871, FuUerton v. McCurdy, 4 Lans. 132; Aff'd, 
 S. C, 55 N. Y. (10 Sick.) 637. 
 
 13. A religious corporation, whose prop- 
 erty is sought to be takeu from it and placed 
 in the hands of a receiver, is a necessary party 
 to the action therefor.- N. Y. Supr. Ct., Sp. T., 
 1871, Groesbeeck v. Dunseomb, 41 How. 302. 
 
 14. The legal estate of every corporate body 
 is vested, not in the individual corporators, but 
 in the corporation itself, in trust for their 
 benefit ; and an action seeking to establish the 
 plaintiff's rights as a corporator, and to have a 
 receiver appointed to take charge of such prop- 
 erty, cannot be maintained against Individual 
 corporators alone. lb. 
 
 15. Retired partner. A partner who has 
 assigned his entire interest to hi« co-partner, 
 under an agreement that the latter shall collect 
 the accounts, pay the debts, and turn over the 
 balance to him, after paying certain of his 
 private debts, is not a necessary party to an 
 action upon a firm account. Com. App., 1872, 
 Phillips V. Clark, 48 N. Y. (3 Sick.) 677. 
 
 16. Stockholders. In an action by pre- 
 ferred stockholders against the corporation, to 
 recover a dividend alleged to be due, the com- 
 plaint charging a diversion of the funds to per- 
 manent improvements, &c., the common stock- 
 holders, if in any case proper, are not necessary 
 parties. Ct. App., 1871, Thompson v. Erie Rail- 
 way Co., 45 N. y. ( 6 Hand,) 468. 
 
 PARTITION. 
 
 1. Action for. The Supreme Court has 
 jurisdiction of all actions for partition, and 
 though the proceedings must be regulated by 
 
530 
 
 PARTITION. 
 
 statute, yet it is competent for the court to 
 determine when the statute has been complied 
 with, and jvhetlier the case is within the statute 
 autliorizing it to entertain an action for parti- 
 tion. Ct. App., 1874, Howell v. Mills, 56 N. Y. 
 (11 Sick.) 226. 
 
 2. The Supreme Court, sitting at Special 
 Term, has all the jurisdiction, both legal and 
 equitable, conferred by statute on the Court of 
 Chancery and the former Supreme Court, in 
 proceedings for partition, and is to conduct the 
 same in conformity to the provisions of the 
 Revised Statutes, so far as they are applicable. 
 Sup. Ct., 1875, Hewlett v. Wood, 3 Hun, 736 ; 
 AfE'd by Ct. App. 
 
 3. An action brought by heirs, under the 
 provisions of ch. 238, Laws of 1853, is properly 
 determinable by the court at Special Term, with 
 the aid of a jury to settle any questions of fact 
 necessary to establish the title at law. lb. 
 
 4. "When can be maiatained. An action 
 for partition is, at least, a doubtful procedure 
 for the trial of adverse or hostile claims to real 
 property. The title of the parties should be 
 first established by the proper action before 
 proceedings for partition. Ct. App., 1875, Van 
 Schuyver v. Mulford, 59 N. Y. (14 Sick.) 426. 
 
 5. The right of an heir-at-law to a share in 
 real estate of the testator, as against a trustee 
 appointed by the will, cannot properly be deter- 
 mined in an action for partition. lb. 
 
 6. By whom. An heir of a deceased intes- 
 tate can maintain an action for partition of her 
 right and interest in the property, real and per- 
 sonal of the deceased, notwithstanding an agree- 
 ment signed by herself, and the other heirs and 
 widow to abide by and consent to the provisions 
 of an unexecuted will drafted by the deceased, 
 not founded on any consideration except the 
 mutual covenants of the parties ; such agree- 
 ment being void for want of consideration. Sup. 
 Ct., 1871, Elderkin v. Rmvell, 42 How. 330. 
 
 7. Where the vendee of land died, after pay- 
 ment of part of the p\irchaBe-money on his 
 contract, leaving a larger sum unpaid, and his 
 administrators paid the balance, advancing a 
 considerable sum for that purpose out of their 
 own funds, and took a deed to themselves indi- 
 vidually, which they claimed to hold only as 
 security for their advances, — Held, that an 
 action for partition between such administrators 
 and the legal heirs and widow of the intestate, 
 could be maintained, they having the wliole 
 legal and equitable titles. Sup. Ct., 1872, Her- 
 bert V. Smith, 6 Lans. 493. 
 
 8. To maintain an action for the partition of 
 lands, tlie plaintiff must, at the time of the com- 
 mencement of the action, have an actual or 
 constructive possession, in common with tlie 
 defendants, of the land sought to be partitioned. 
 Ct. App., 1871, Florence v. Hopkins, 46 N. Y. 
 (1 Sick.) 182. 
 
 9. A subsisting, ad verse possession by a tenant 
 ■ in pommon, though of short duration, is an 
 
 absolute bar to the action. lb. 
 
 10. The objection that the complaint in parti- 
 tion does not aver that the plaintiff was in pos- 
 session of the premises sought to be partitioned 
 can only be taken by demurrer or answer, and if 
 not so taiken the judgment concludes the parties. 
 Sup. Ct., 1873, Howell v. Mills, 7 Lans. 193. 
 
 11. It seems fliat actual possession in tlie plain- 
 tiff is not necessary, but it is enough that the 
 plaintiff has a present estate as tenant in com- 
 mon or joint tenant, and is constructively in 
 possession of an undivided share or interest in 
 the premises. lb. 
 
 12. A person entitled to a remainder in fee 
 after an existing life estate, is therefore to be 
 deemed in possession, notwithstanding the actual 
 occupation by the tenant for life, for the' pur- 
 pose of bringing an action for partition. lb. 
 
 13. One who is entitled to a vested remainder 
 in lands, is in possession of his undivided share, 
 within the meaning of the statute relating to 
 actions for partition, and can maintain such an 
 action, although there is a life estate covering 
 the whole lands, and the life tenant is in pos- 
 session. Sup. Ct., 1874, Chism v. Keith, 1 Hun, 
 589. 
 
 14. Such person can maintain the action, al- 
 though his estate is liable to be defeated by his 
 death before that of the life tenant ; and future 
 contingent interests of persons not in esse may 
 be barred by a sale under a judgment in the 
 action. lb. 
 
 15. Where a tenant in common of real estate 
 devises his share thereof to his widow for life, 
 with remainder to another in fee, the latter can 
 maintain an action for partition during the life 
 of the widow. Sup. Ct., 1875, Sullivan v. Sulli- 
 van, 4 Hun, 198. 
 
 16. Constructive possession is sufficient to 
 constitute the unity of the right of possession 
 required in a tenancy in common, and a remain- 
 der-man may have such possession. lb. 
 
 17. Separate O'wiiers. An action for the 
 partition of land cannot be maintained where 
 the parties own separate parcels, and are not in 
 possession of any portion of tlie land described 
 in the complaint, either as joint tenants or 
 tenants in common. Sup. Ct., 1872, Boyd v. 
 Dowie, 65 Barb. 237. 
 
 18. Yet, where the complaint, after a prayer 
 for partition, asks generally for such other and 
 further relief as to the court may seem just and 
 proper, the court may grant relief in a case of 
 confusion of boundaries set forth in the com- 
 plaint, by directing the boundaries between the 
 parties to be ascertained and fixed. lb. 
 
 19. In an action for the partition of lands 
 under water, originally granted to four patentees, 
 who had also owned the upland adjoining, and 
 had surveyed such upland into lots butting on the 
 water, and then had made partition among them- 
 selves of such upland lots, and had severally 
 conveyed some of them butting on the water, 
 with portions of the rights acquired under the 
 water patent in part of such individual lots, such 
 action being brought by the grantee of the resid- 
 uary interest remaining in one of the patentees 
 of the water patent, against the owners of the 
 several rights and interests of the remaining 
 patentees, and against the grantees of such por- 
 tions of the water right as had been previously 
 conveyed by the patentees or their heirs, — Held, 
 that the action could not be sustained by such 
 plaintiff against owners of portions of the water 
 rights under conveyances by the patentee or his 
 heirs whose residuary interest was vested in the 
 plaintiff, but must be dismissed as to them ; — 
 tliat as to other parcels of said water right in 
 which the plaintiff had an interest, but in which 
 the various defendants had dissimilar interests, 
 the objection that the same parties are not joint 
 owners or tenants in common of all the property 
 sought to be partitioned would have been good 
 if taken by answer or demurrer, but it was too 
 late if taken for the first time at the hearing ; 
 that land actually covered by a dock, claimed to 
 be held adversely, must be excluded from the 
 partition ; and that spaces of land laid out as 
 roads, but not actually accepted or worked by 
 the public authorities, and in a manner aban- 
 
PARTITION. 
 
 531 
 
 doned or disused, could not be partitioned where 
 a right of way over them still existed in favor 
 of such owners of lots fronting thereon who 
 had no otlier means of access thereto, nor where 
 the owners of such lots claim to the centre 
 of the road advgrsely to the plaintiff. Sup. Ct., 
 Sp. T., 1872, BUack v. Mayor, etc. of New York, 
 45 How. 857. 
 
 20. Tenant in common. Since the statute 
 of 1847 (4 Edm. Stats. 613), the existence of an 
 estate for life in the whole premises and posses- 
 sion by the tenant, are not a bar to an action for 
 partition, brought by a tenant in common of the 
 remainder. N. Y. C. P., Sp. T., 1869, McGlone 
 V. Goodwin, 3 Daly, 185. 
 
 21. Trustees. A trustee of lands under a 
 valid trust to receive the rents and profits there- 
 of and apply them to the use and support of an 
 infant, during its minority, with an absolute 
 power to sell the land and invest the proceeds 
 for the benefit of tlie infant, can institute a suit 
 in equity to partition such lands held in common 
 with other persons of adult age. Sup. Ct., 1873, 
 Gallie V. Eagle, 65 Barb. 583. 
 
 22. Where five persons, acting as a commit- 
 tee for a larger number (themselves included) 
 attending the same church, took the title to cer- 
 tain lands to be used for the erection of sheds 
 for the common benefit, and were afterward, by 
 a written agreement signed by all the subscrib- 
 ers, empowered as such committee to erect the 
 sheds and grade the lands at the joint expense 
 of all, eacli subscriber to pay his proportionate 
 share On completion of the work and delivery of 
 a proper title to such share, — Held, that the land 
 became thereby so far impressed with a trust in 
 favor of the subscribers, that partition would 
 not be allowed between the grantees. Com. 
 App., 1871, Baldwin v. Humphrey, 44 N. Y. (5 
 Hand,) 609. 
 
 23. At any rate, partition will not be granted 
 at suit of one of such committee, who, after 
 completion of the work, proposed to witlidraw 
 from the committee and have nothing more to 
 do witli tlie real" estate in case he was repaid 
 what he had expended, and his offer being 
 accepted, made out his bill of charges and 
 received and retained the money thereon. lb. 
 
 24. Parties. The provision of sec. 117 of the 
 Code relative to parties, construed as manda- 
 tory, would require that all persons having the 
 fee of premises sought to be divided should be 
 made plaintiffs ; but, it seems, that sec. 448 of the 
 Code was intended to retain all the provisions of 
 the Eevised Statutes (2 R. S. 316 ; 2 Edm. Stats. 
 326), in relation to the partition of lands, with 
 the simple exception of changing it from a pro- 
 ceeding by petition, to an action under tlie Code. 
 Sup. Ct., Sp. T., 1873, Rosekrans v. White, 7 
 Lans. 486. 
 
 25. In such an action the wives of the several 
 owners are proper parties,_but are not necessary 
 parties except in cases where a sale of the prem- 
 ises may be necessary, and in such a case tlie 
 party suing may properly make his own wife a 
 defendant. lb. 
 
 26. The other defendants have no right to 
 complain of the fact that such wife is made de- 
 fendant instead of plaintiff, if she does not. lb. 
 
 27. In an action in equity for partition of 
 lands, if rents are due from one of the tenants 
 in common to another at the time of the death 
 of the latter, the administrator of the deceased 
 is a proper party to the action, as he is entitled 
 to receive such rents. Com. App., 1871, Scott v. 
 Guernsey, 48 N. Y. (3 Sick.) 106 ; Aft'g S. C, 60 
 Barb. 163. 
 
 28. Service of summons. Where publica- 
 tion of summons is ordered to be made in two 
 papers, it must be made continuously in each 
 paper, but need not be concurrently ; but the 
 service will not be complete until 42 days after 
 the first insertion in tlie paper making the last 
 publication. Sup. Ct., 1872, Herbert v. Smith, 6 
 Lans. 493. 
 
 29. An omission in the proof of mailing a 
 copy of the summons and complaint, or service 
 by publication, of the name of one defendant on 
 whom service was so made, may be afterward 
 supplied by an order of court directing the 
 filing of such proof nunc pro tunc. lb. 
 
 30. The provision of the Code (see. 135) for 
 the service of process upon unknown parties is 
 confined to actions of foreclosure and does not 
 apply to partition cases, but the provisions of 
 the Revised Statutes (3 R. S. 605 ; 2 Edm. Stats. 
 828) are by sec. 448 of the Code continued as 
 ajrolicable thereto. Sup. Ct., 1873, Sanford v. 
 White, 46 How. 205 ; Aff'd, S. C, 47 How. 96 ; 
 56 N. Y. (11 Sick.) 359. 
 
 31. The notice required by the Revised Stat- 
 utes in sucli cases must contain a description of 
 the premises to be partitioned, and a published 
 notice which does not contain such a description 
 will not confer jurisdiction over unknown 
 owners. lb. 
 
 32. Guardians ad litem. In proceedings 
 for partition under the act of 1831, against infant 
 defendants who were non-residents and served 
 by publication, the appointment of- guardians 
 for such infants was not necessary unless ttiey 
 appeared. The act of 1833, was applicable only 
 to resident defendants. Sup. Ct., 1867, Clemens 
 V. Clemens, 60 Barb. 366. 
 
 33. Even if the appointment of such guardians 
 was necessary, the omission to appoint them is 
 but an irregularity, which must be taken advan- 
 tage of promptly. lb. 
 
 84. Tried of issues by jury. An action 
 for partition, brought by an heir-at-law of a 
 deceased person, against defendants who are in 
 possession of the premises, claiming as devisees 
 of tlie deceased, in pursuance of ch. 238, Laws 
 1853 (.4 Edm. Stats. 508), tlie plaintiff alleging 
 the devise to be void, is in the nature of an 
 action of ejectment, as the granting of the parti- 
 tion depends on the prior establishment of the 
 legal title, and should be tried by jury ; and it 
 is therefore, error to refuse a motion to settle 
 the issues to be tried by a jury. Sup. Ct., 
 1874, Hewlett v. Wood, 1 Hun, 478. 
 
 85. Reference. In partition, as in other 
 equity adtions, the court may, under sec. 270, of 
 the Code, by consent of parties, order a reference 
 to take proof of the respective parties, and 
 report with his findings. Sup. Ct., 1875, Thur- 
 ber V. Chambers, 4 Hun, 721. 
 
 36. The effect of the referee's report, in such 
 a case, is the. same as that of the verdict of a 
 jury on a feigned issue out of chancery, and the 
 court may form its own conclusions of law and 
 of fact upon the evidence, using the referee's 
 report as advisory merely. lb. 
 
 37. — as to liens. Under an order of ref- 
 erence in a partition suit where a sale is neces- 
 sary, which directs the referee to ascertain and 
 report tlie amount due to any party to the action 
 who has either a general or specific lien upon 
 the premises or any part thereof, such referee 
 has power to pass upon the validity of a mort- 
 gage given by one party to another upon his 
 undivided interest in the premises, although that , 
 issue be not raised by the pleadings. Ct. App., 
 1874, Halstedv. Halsted, 55 N. Y. (10 Sick.) 442. 
 
532 
 
 PARTITION. 
 
 88. Injunction and receiver. In an action 
 by one claiming to be an heir-at-law, for the parti- 
 tion of the real estate of the deceased, the right 
 of tlie plaintiff, as such heir, should be clear, in 
 order to justify the court in taking the custody 
 , of the property from the trustees under the will ; 
 and where it is not so, her motion for an injunc- 
 tion and receiver pending the action should be 
 denied. Sup. Ct., Sp. T., 1873, Patterson v. Mc- 
 Cunn, 46 How. 182. 
 
 39. An application in such action to remove 
 the trustees for incompetence or improvidence 
 should not be granted upon affidavits founded 
 principally on information and belief, which are 
 nnequivocally denied on the part of the trustees, 
 lb. 
 
 40. Accounting. In an action in equity, 
 between parties claiming interests in land mider 
 a will, for the partition of such land,' the court 
 will order an accounting, and dispose of all ques- 
 .tions arising between tlie parties in relation to 
 the land and its use, and afford complete relief. 
 Sup. Ct., 1866, Scott V. Guernsey, 60 Barb. 163 ; 
 Aff'd, S. C, 48 N. Y. (3 Sick.) 106. 
 
 41. Wliere a remainder-man, with the consent 
 of the life tenant, and full knowledge of her 
 limited title, and without the consent of the 
 other remainder-men, has erected buildings upon 
 the premises devised, he is not entitled to com- 
 pensation therefor from his co-tenants, upon 
 partition. lb. 
 
 42. If such remainder-man has received rents 
 from such buildings after the death of the life 
 tenant, he must account therefor in such suit, 
 with interest ; and his co-tenants have a lien 
 upon his share for the amounts due them. lb. 
 
 43. The remedy of tenants in common against 
 each other, by action, for rents received, is cumu- 
 lative, and does not bar their adjustment in an 
 action in equity for partition. lb. 
 
 44. The decree in partition should settle the 
 rights of all the parties to the proceedings, and 
 not leave a portion of the property to be the sub- 
 ject of another proceeding in partition. Sun. 
 Ct, 1873, Post V. Post, 65 Barb. 192. 
 
 45. In proceedings for partition between a 
 widow and heirs, if the commissioners deter- 
 mine that the portion set apart for the widow's 
 dower cannot be partitioned they should report 
 such determination to the court ; and the court 
 should then order a sale of that portion, subject 
 to the life estate of the widow. lb. 
 
 46. Where the commissioners state in their 
 report that the portion set off for widow's dower 
 is so situated as to make a valuable farm, and 
 if divided among tlie lieirs, the parcel that would 
 be assigned to each would be so small as to be 
 of little value, and would lessen the value of 
 the whole, and thereupon order that such por- 
 tion be sold at the death of the widow, the order 
 of the commissioners is of no effect, but the 
 reason assigned is sufficient to authorize the 
 court to order a sale thereof. lb. 
 
 47. Commissioners have power to require the 
 payment of money, in order to equalize shares 
 assigned by them, and the court will not set 
 aside a report because such power has been 
 exercised, unless it has been abused, or so ex- 
 ercised as to operate unjustly. lb. 
 
 48. In an action for partition, where one of 
 the parties is a widow and entitled to dower in 
 a part of the premises and also to the use and 
 occupation of such part until her youngest child 
 becomes of age, the value of such interests in 
 money can be ascertained and paid to her, if she 
 consents to release her dower and accept a sum 
 in gross, and her interests can thus be extin- 
 
 guished. N. Y. Supr. Ct., Sp. T., 1874, Bond v. 
 McNiff, 38 N. Y. Supr. (6 J. & Sp.) 83. 
 
 49. Directing sale. It is discretionary with 
 the court to direct a sale instead of actual par- 
 tition; and, where the property consisted of 
 village lots, and some of the shares were small, 
 some encumbered by judgments, and others re- 
 duced by liens for excess of rents received, — 
 Held, that a judgment ordering a sale in separate 
 lots was proper. Com. App., 1871, Scott v. 
 Guernsey, 48 N. Y. (3 Sick.) 106 ; Aff'g S. C, 60 
 Barb. 163. 
 
 50. The court may order a sale of lots with a 
 reserved lane or right of way, common to the 
 lots sold, but to direct a street to be opened 
 through the property would be improper. lb. 
 
 61. Where the complaint shows that the legal 
 title to the premises sought to be partitioned is 
 in administrators, who claim to hold it merely 
 as security for advances, and tliat the equitable 
 title is in the heirs and widow of the intestate, 
 subject to the payment of such advances, all of 
 whom are made parties to the action, equity will 
 entertain the action, and will decree a sale, in 
 the nature of a partition, and a division of the 
 proceeds. Sup. Ct;, 1872, Herbert v. Smith, 6 
 Lans. 493. 
 
 52. Effect of sale. A sale of real estate, la 
 which infants have an undivided interest subject 
 to the life estate of their mother, under a decree 
 In a suit for partition brought by one of the 
 other tenants in common, does not change the 
 character of the infant's estate in the proceeds, 
 but they are to be treated as realty and not as 
 personalty. Sup. Ct., 181i, In Matter of Thomas, 
 1 Hun, 473. 
 
 53. Relief from purchase. Questions as to 
 the suitableness of guardians ad litem appointed 
 by the court, their attention to the interests of 
 the infants represented by them, the money ad- 
 vanced by administrators on behalf of such in- 
 fants, and the amount of the estate, &c., do not 
 concern the jurisdiction of the court or the reg- 
 ularity of the sale, and do not furnish ground 
 for relieving the purchaser from his purchase. 
 Sup. Ct., 1872, Herbert v. Smith, 6 Lans. 493. 
 
 54. Neither is the failure of the referee to fol- 
 low the decree in respect to the terms of sale 
 not shown to be prejudicial to the infants, an 
 irregularity of which the purchaser can take 
 advantage, it not being one of jurisdiction, nor 
 one upon which the court would have inter- 
 vened after the sale, on application of the parties, 
 lb. 
 
 55. Upon proof that the deviation was not 
 prejudicial to the infants, but desirable for their 
 interests, the court would direct a modification 
 of the decree nunc pro tunc. lb. 
 
 56. The purchaser cannot object that the sale 
 was not made on the day to which the referee 
 had adjourned it, where the court upon con- 
 firming sales made on the day first appointed has 
 directed the sale of the remaining premises to 
 stand over to a future time, such order having 
 the effect to nullify the adjournment; and a 
 sale subsequently made, after publication of 
 notice as directed by the decree, is regular. lb. 
 
 57. Neither can he object that there are mort- 
 gages on the property which the referee was 
 not prepared to satisfy at the time for the deliv- 
 ery of the deed, when it appears that the 
 amount to be paid on the sales was sufficient to 
 extinguish the mortgages, and that the holders 
 were at hand to receive the money and discharge 
 the liens. lb. 
 
 58. Neither can he object that the title is de- 
 fective, because it came through a grantee who 
 
PAETNERSHIP. 
 
 533 
 
 stood in the relation of trustee at the time he 
 purcliaseil in his own right, some 40 years 
 previously, where no evidence is offered to show 
 that he did not account to his cestui que trust, and 
 it appears that the property has since been fre- 
 quently transferred, without any claim being 
 made on the part of the latter. lb. 
 
 69. Where the purchaser of premises at a sale 
 under a judgment in partition makes objections 
 to the title on account of defects in the proceed- 
 ings, which are shown to be valid, if it appears 
 that they cannot be removed, the sale should be 
 rescinded and tlie purchaser be reimbursed, even 
 though he opposes the plaintiff's motion there- 
 for. Sup. Ct., 1873, Parisen v. Parisen, 46 How. 
 385. 
 
 60. Fees of commissioners. Commission- 
 ers appointed to make partition of real estate 
 are entitled to only $2 per day for each day 
 actually and necessarily employed in the busi- 
 ness of partition, besides their actual and neces- 
 sary disbursements. Sup. Ct., Sp. T., 1874; 
 Campbell v. Campbell, 48 How. 255. 
 
 61. On a motion to adjust the fees and dis- 
 bursements of such commissioners, the number 
 of days' service actually and necessarily em- 
 ployed by each commissioner, and the actual 
 disbursements made by them must be shown by 
 affidavit. lb. 
 
 PARTNERSHIP. 
 
 1. 'What constitates. Participation in the 
 profits of a firm makes a man a partner, unless 
 enjoyed under an express agreement that it is 
 given merely as compensation for services and 
 without conferri^ any interest in the business. 
 Sup. Ct, 1874, Greenwood v. Brink, 1 Hun, 227. 
 
 2. Where the firm name actually represents 
 persons, who are liable as partners to third per- 
 sons and creditors, the use of sucli name is not 
 a violation of ch. 281, Laws 1833, although they 
 may not be partners as between themselves. lb. 
 
 3. Under an agreement between a partnership 
 firm and a tliird person, that in consideration of 
 a loan made by the latter to the firm of a certain 
 sum for one year, the firm will pay him one-third 
 of the profits of tlieir business, to be settled half- 
 yearly, and at the end of the year take him in 
 as a partner, if the firm and he feel satisfied, on 
 his putting in more money as capital, sucli per- 
 son has a specific interest in the profits as profits, 
 and as to creditors of the firm and third persons 
 is a partner. Ct. App., 1874, Leggett v. Hyde, 47 
 How. 524; S. C, 58 N. Y. (13 Sick.) 272. 
 
 4. As to third parties, one who shares in the 
 profits of a business in consideration of a share 
 of the capital invested and imperilled by him 
 therein, is a partner and liable as such, although, 
 as between the parties engaged, (jne is freed 
 from liability, or his liability is limited. Com. 
 App., 1872, Ontario Bank v. Hennessey, 48 N. Y. 
 (3 Sick.) 545. 
 
 6. Tlie purchase of a joint interest in a patent 
 right, under an agreement for the payment of 
 the purchase-money out of the profits of the 
 business and a sharing of such profits afterward, 
 constitutes the parties partners as to- third par- 
 ties, notwithstanding one partner attends to all 
 the business, and makes grants in his own name, 
 and the contract states its object to be, not the 
 formation of a partnership, but only to make the 
 parties joint owners of the patent. Ct. App., 
 1871, Manhattan Brass S/- Manf. Co, v. Sears, 45 
 N, Y. (6 Hand,) 797 ; Rev'g S, C, 1 Sweeny, 426. 
 
 6. One who engages in the management of 
 business in the name and ostensibly as a mem- 
 ber of a firm, is liable as a partner to third par- 
 ties with whom he has dealt as such, although 
 the consent of one of the intended members, 
 which by the terms of the articles of associa- 
 tion, was necessary to the existence of the firm, 
 has never been obtained. Ct. App., 1872, Mc- 
 Stea v. Matthews, 50 N. Y. (5 Sick.) 166; Aff'g 
 S. C, 8 Daly, 849. 
 
 7. Wliere one of the partners of the firm of J 
 L B & Co., represented to a merchant that at a 
 certain day M was to be taken into the firm, in 
 which representations M joined, and sucli mer- 
 chant relying on the representations sold goods 
 to the firm of J L B & Co., to be paid for after 
 the day named, and after tliat day took the note 
 of the firm, for the price, having no notice that 
 the new firm had not been formed as contem- 
 plated, — Held, that M was liable to him as a 
 partner. Sup. Ct., 1872, Stiles v. Meyer, 7 Lans. 
 190 ; S. C, 64 Barb. 77. 
 
 8. One who is interested in the securities de- 
 posited by a private bank to obtain its circu- 
 lating notes, and who lias signed tlie certificate 
 prescribed by sec. 6, ch. 242, Laws of 1854, be- 
 comes thereby a general partner with tlie orig- 
 inal banker, and liable as such on the bank obli- 
 gations. Ct, Aw., 1871, Juliand v. Watson, 43 
 N. Y. (4 Hand,) 571. 
 
 9. Where persons interested in the circulation 
 of a private bank, continue the business after 
 the death of one of the partners, the survivors 
 will be held liable as co-partners, for their sub- 
 sequent transactions. lb. 
 
 10. An agreement between the stockholders 
 of a manufacturing corporation, whose charter 
 has expired, to continue the business by one of 
 their number as agent, each contributing to 
 the expenses in proportion to his stock, consti- 
 tutes them partners as to third persons, and ren- 
 ders them liable, as such, on the contracts of 
 such agent made for their benefit, though in the 
 name of the old corporation. Ct. App. 1871, 
 National Un. Bank of Watertovm v. Landon, 45 
 N. Y. (6 Hand,) 410. 
 
 11. AAThat does not constitute. An agree- 
 ment between two parties that one of them 
 shall have one-half the net profits of a business to 
 be carried on under their joint names, but to 
 " have no interest in the property, assets, ac- 
 counts or claims belonging to the business," 
 does not constitute them partners between them- 
 selves. N. Y. Supr. Ct., 1873, Beudel v. Hettrick, 
 45 How. 198 ; S. C, 35 N. Y.- Supr. (3 J. & Sp.) 
 405. 
 
 12. A party dealing with such nominal part- 
 ners who has notice of the actual agreement be- 
 tween them, is bound to recognize its provisions, 
 and so far as he is concerned they are no longer 
 to be considered as partners. lb. 
 
 13. To constitute a partnership, there must be 
 a reciprocal agreement by the parties, not only 
 to unite their stock, but to share in the risks of 
 profit or loss by the disposition to be made of 
 it ; and though goods be bought by several, 
 under an agreement to hold in aliquot shares, 
 but with the intention of subsequently forming 
 a co-partnersliip in respect to them, until the 
 partnership agreement is actually made, the pur- 
 chasers are not co-partners but only tenants in 
 common. Ct. App., 1872, Baldwin v. Burrows, 
 47 N. Y. (2 Sick.) 199. 
 
 14. An agreement for a business connection 
 for a certain time, one party to share in the 
 profits and losses at a certain rate per cent., to 
 draw a certain sum per annum for personal ex- 
 
534 
 
 PARTNERSHIP. 
 
 penses (the amount of capital to his credit and 
 the surplus profits remaining in tlie business 
 during tlie term of the agreement on interest), 
 but to have no rights of partnership or of sign- 
 ing the firm name, does not constitute such party 
 a co-partner with tlie others, or entitle him to 
 any share of the goods left unsold, or the profits 
 arising from subsequent sales. Com. App., 
 1872, Oslrrey v. iJeimer, 51 N. Y. (6 Sick.) 630. 
 
 15. The advance of moneys by one party to 
 an attorney for tlie purchase of prize claims, un- 
 der an agreement that tlie latter shall invest 
 them in that way and collect the claims for one- 
 half tlie profits realized over and above the 
 amount invested, does not constitute the par- 
 ties co-partners. Com. App., 1873, Prmity v. 
 Swift, 51 N. T. (6 Sick.) 594. 
 
 16. An agreement, by the terms of which one 
 of the parties is to work the farm of the other 
 on shares, the crops to be divided between 
 tliem ; all the profits arising from the working 
 and farming of said farm to be divided equally 
 between tlie parties ; — all losses and gains upon 
 
 said farm to be divided equally between the 
 
 said parties ; " does not create the relation of 
 partners between the parties. Sup. Ct., 187i, 
 Gregiyry v. Brooks, 1 Hun, 404, 
 
 17. A mere community of interest in a patent 
 or in a business based thereon is not sufficient 
 to create a partnership, without an agreement to 
 share tlie profits and losses. N. Y. Supr. Ct., 
 1874, Boeklen v. Hardenburg, 37 N. Y. Supr. (5 
 J. & Sp.) 110. 
 
 18. A part owner of such a patent would not, 
 therefore, from that fact alone, be liable as a 
 partner for services rendered in developing such 
 patent ; but, to make him so, either there must 
 have been an actual partnership, or he must 
 have lield himself or allovred himself to be held 
 out as a partner. lb. 
 
 19. An agreement between the owner of a 
 patent right and another, that the latter shall 
 sell riglits and share the proceeds; that notes 
 taken therefor shall be payable to t)ie order of 
 botli in their joint names ; and that the latter 
 may sign their joint names, when necessary in 
 tlie business, or for the purpose of converting 
 the notes into cash, does not make them part- 
 ners ; and where they do not hold themselves 
 out to tlie public as partners, or transact business 
 in a partnersliip name, tlie former is not liable 
 upon an indorsement made by the latter in their 
 joint names on a note not taken in the business, 
 even to a bona fide holder. Sup. Ct,, 1875, Hotch- 
 kiss V. English, 4 Hun, 369. 
 
 20. Stockholders of a corporation, who 
 continue to transact business as such corporation 
 after the expiration of their charter, do not 
 tliereby become liable as co-partners ; but the 
 business miist be deemed to have been carried 
 on by tlie directors acting as trustees, and per- 
 sons dealing with them must be deemed to iiave 
 contracted with them in their representative ca- 
 pacity, and relying upon their responsibility in 
 sucli capacity. Sup. Ct., 1875, Central Savings 
 Inst. V. Walker, 5 Hun, 34. But see Fuller v. 
 Rowc, 59 N. Y. (14 Sick.) 23. 
 
 21. Special partnership. A substantial 
 compliance with the provisions of tlie statute 
 relating to special partnerships, is all that is 
 necessary to seiure to the special partner the 
 benefit of its exemptions. N. Y. C. P., 1874, 
 Levy V. Lock, 47 How. 394. 
 
 22. Tlie special partnership is duly formed on 
 the day the proper certificate and affidavit are 
 filed, although executed 28 days before that 
 time, and the special partner is- liable only in 
 
 that capacity to those who deal with the firm 
 after such filing, and a publication of the terms 
 in compliance with the statute. lb. 
 
 Lease from General Partner Prohibited. 
 Ch. 114, Laws of 1872. 
 
 23. For dealing in lands. A partnership 
 may be entered into for the purpose of dealing 
 or speculating in lands, as well as for the transac- 
 tion of any other business, and the same rules 
 will apply thereto as to ordinary partnerships, 
 except so far as modified by the statutes relat- 
 ing to tlie conveyance of real estate. Com. 
 App., 1873, Chester v. Dickinson, 45 How. 326; 
 S.C, 54N. Y. (9 Sick.) 1. 
 
 24. Such a partnersliip may be created by 
 parol, tlie statute of frauds not applying to a 
 case where there is no transfer of real estate 
 from one to tlie other. lb. 
 
 25. Partnership property. Land pur- 
 chased for tlie benefit of a copartnership, and 
 paid for with its funds, is the property of the 
 firm, although the title is taken in the name of 
 one of its members. A resulting trust in favor 
 of the otlier partners arises out of such transac- 
 tion, which is not affected by the provision of 
 1 R. S. 728, sec. 51. Sup. Ct., 1875, Fairchild v. 
 Fairchild, 5 Hun, 407. 
 
 26. Where tliree out of four-partners, secretly 
 and witliout notice to the fourtli, obtain in their 
 own names and to the exclusion of the other, a 
 renewal of the lease held by tlie firm, sucli re- 
 newal lease becomes assets of t)ie firm, and such 
 fourth partner is entitled to an interest therein. 
 Com. App., 1872, Struthers v. Pearce, 51 N, Y. 
 (6 Sick.) 857. 
 
 27. If one of several partners during the 
 existence of the copartnership procures a new 
 lease, in his own name, of the premises occupied 
 by tlie firm, without the consent of his co- 
 partners, to commence before the termination of 
 the partnership, he will be declared to liold sucli 
 lease as trustee for the firm. Sup. Ct., 1872, 
 Mitchell V. Read, 61 Barb. 310. 
 
 28. The same rule would apply where either 
 partner has the right to terminate the partner- 
 sliip on notice, and the lease is obtained before 
 any notice has been given. lb, 
 
 29. But wliere the partnership is by its terms 
 to expire before the new lease is to take effect, 
 and there is no agreement to extend it, and the 
 firm have no right of renewal, there is notliing 
 in the relation of the parties to prevent one 
 partner taking a renewal of the lease for his 
 own benefit, to commence after the expiration of 
 tlie partnership. lb. 
 
 30. Although as between the members of a 
 firm tlie property and entire interest in the part- 
 nership may belong to an individual member, 
 tlie otliers being merely nominal partners, yet, 
 as to the parties dealing with them upon tlie 
 strength of the partnership, and as between such 
 parties and an assignee in bankruptcy of the in- 
 dividual partner, the property will be con- 
 sidered as partnership property and subject to 
 the lien of tlie firm debts. Ct. App., 1872, Kelly 
 v. Scott, 49 N. Y, (4 Sick.) 595. 
 
 31. Where one partner of a firm engaged in 
 manufacturing an article, under a contract with 
 the owner of the secret of its manufacture and 
 of the trade mark under which it has been sold, 
 being directed by his partners to procure a new 
 contract on the best terms he can obtain, pro- 
 cures a contract conferring the exclusive use of 
 the right to manufacture and sell under that 
 
PARTNERSHIP. 
 
 535 
 
 trade mark upon himself individually, he will be 
 held to be a trustee thereof for the firm. N. Y. 
 Supr. Ct., 1875, Weston v. Ketcham, 39 N. Y. 
 Supr. (7 J. & Sp.) 54. 
 
 82. If his co-partners, not themselves knowing 
 the secret of the manufacture, express their dis- 
 approbation of the contract because so made by 
 him in his own name, but continue the firm and 
 its business under such trade mark, and pay to 
 the owner the amount agreed to be paid for its 
 use out of the funds of the firm, tlieir acquies- 
 cence will be deemed forced, and will not be a 
 ratification of the contract, so as to deprive 
 them of their rights in its use. lb. 
 
 88. Duties to each other. One partner can- 
 not lawfully enter into any secret arrangement 
 witli tliird parties, for his own private advantage, 
 which will conflict with the interests of the co- 
 partnership. Sup. Ct., 1874, Manufacturer's Nat. 
 Bank of Troy v. Cox, 2 Hun, 572. AfE'd by Ct. 
 App. 
 
 84. Where, after co-partners had purchased 
 from tlie patentee the right to use his invention 
 in stoves manufactured by them, and to sell the 
 right to other manufacturers in the same city, 
 one of the partners secretly agreed with such 
 patentee to use his influence to introduce such 
 patent into general use for a share of the money 
 paid him by the firm, — Seld, tliat he thereby 
 engaged in business necessarily conflicting with 
 the interests of tlie firm, and such business 
 thereby became part of the business of the 
 firm, and he was liable to account to his co- 
 partners for their proportionate share of the 
 profits he realized therefrom. lb. 
 
 35. PoTvers of partners. The active mem- 
 ber of a firm who manages the whole busi- 
 ness, is entitled to dismiss any employe who is 
 not engaged for a definite period, and, if he 
 persists in remaining under the countenance 
 and support of dormant partners, — It seems, 
 hfe cannot sue the firm jointly for his wages, but 
 must have recourse to those by whose authority 
 he remained. N. Y. C. P., 1871, Brings v. Smith, 
 4 Daly, 110. 
 
 36. One partner cannot apply the partnership 
 property to the payment of his individual debt 
 without the consent of his co-partners, and if he 
 attempts to do so the title does not pass to his 
 creditor, whether he knew it to be partnership 
 property or not. N. Y. Supr. Ct., 1871, Geery 
 V. Cockeroft, 33 N. Y. Supr. (1 J.,& Sp.) 146. ' 
 
 87. A partner cannot release a debt due to 
 the firm, even during co-partnership, in con- 
 sideration of its being received in discharge of a 
 debt due from him individually. N. Y. Supr. 
 Ct., 1878, Beudett v. Hettrick, 45 How. 198; 
 S. C, 85 N. Y. Supr. (3 J. & Sp.) 405. 
 
 38. An agreement by one member of a co- 
 partnership with a trustee of the firm to divert 
 seciu'ities belonging to the firm, in the hands of 
 the trustee, to the individual use or debt of such 
 partner, is invalid. Sup. Ct., 1872, Goive v. Law- 
 rence, 6 Lans. 89. 
 
 39. The only interest which an individual 
 partner has in the partnership property, and the 
 only interest whicli he can convey or which can 
 be sold on execution against him, is a right to 
 share in the surplus which may remain after 
 payment of the partnership debts ; and no trans- 
 fer by one, or by each separately, of his indi- 
 vidual interest, to parties not members of the 
 firm, will so convey the corpus of the property 
 as to preclude a* creditor having a judgment 
 against the firm from levying thereon. Ct. App., 
 1873, Menagh v. Whitwell, 52 N. Y. (7 Sick.) 146. 
 
 40. Where two out of five partners transferred 
 
 their individual interests to a third, — Held, that, 
 although this worked a dissolution of the firm, 
 and tlie remaining members thereby acquired 
 the absolute power of disposal, which, if exer- 
 cised, would divest the lien of creditors of the 
 old firm, and, as between creditors of the old 
 and new firms, the latter would be preferred, 
 yet, while the property remained in specie, and 
 no new liabilities had been contracted, nor the 
 power of disposal exercised by the joint act of all, 
 the creditors of the old firm might follow it into 
 the hands of tlie new firm, or of tliose parties to 
 whom the partners had separately conveyed their 
 individual interests. lb. 
 
 41. Power to bind each other. The rule 
 that one partner may bind the firm by commer- 
 cial paper does not extend to all kinds of busi- 
 ness, but only to that of a trading or commer- 
 cial nature, or the ordinary business of buying 
 or selling for a profit. Sup. Ct., 1872, Hunt y. 
 Chapin, 6 Lans. 139. 
 
 42. One of several persons engaged in carry- 
 ing on a plantation, under an agreement that 
 another of them shall furnish the funds and all 
 shall share the profits, if to be deemed a partner, 
 cannot bind the otiiers by a note given by him 
 in the name of the firm but witliout the knowl- 
 edge or authority of tlie bthers, and not needed 
 to be used, nor actually used, in their business, 
 lb. 
 
 43. A partner who uses the name of the firm 
 in an affair having no connection witli its busi- 
 ness, binds himself, but the litfcility will extend 
 no further so long as the party dealing with him 
 understood him to be using the firm name for the 
 convenience of another person, and outside the 
 scope of its business. Sup. Ct., 1875, Merchant 
 V. Bdding, 49 How. 344. 
 
 44. All contracts with partners are joint and 
 several, so that each is liable for the whole of a 
 debt, contracted by them, until it is paid, but not 
 so as to subject each to a separate action. Sup. 
 Ct., 1875, Speyers v. Fisk, 3 Hun, 706. 
 
 45. Although persons who assume to act in a 
 corporate capacity, without a legal organization 
 as a corporate body, are liable as partners to 
 those with whom they contract, yet, in order to 
 charge any one of them either as a corporation 
 or as a partner, lie must be shown to have been 
 a member of the firm when the contract sued on 
 was made, or to have afterward agreed upon 
 some consideration to become jointly liable with 
 those with whom he acted. Ct. App., 1874, 
 Fuller V. Bx>we, 57 N. Y. (12 Sick.) 23 ; Rev'g S. 
 C, 59 Barb. 344. 
 
 46. Thus, where R became a member of an 
 unincorporated coal company, supposing it to be 
 legally incorporated, and was elected its presi- 
 dent and acted as such, and gave directions as 
 such to one who had been employed as superin- 
 dent of the business previous to his joining the 
 company, and as president accepted drafts drawn 
 on him by the superintendent, and tliey were 
 paid by the treasurer, and, upon the abandon- 
 ment of the business, directed as to tlie dis- 
 position of the books, but never expressly agreed 
 to become personally liable on tlie previous con- 
 tracts of the company, — Held, that he was not 
 liable for any part of the superintendent's salary. 
 lb. 
 
 47. Where one holding a lease of a store in 
 which he was doing business, took a partner for 
 a term less than the unexpired terra of his lease, 
 the latter verbally agreeing that the rent for the 
 whole unexpired term should be regarded as a 
 partnership liability, but no mention of the lease 
 being made in the written articles of part- 
 
536 
 
 PARTNERSHIP. 
 
 nership, and the new partner bought out his co- 
 partner and sold out to another before the expira- 
 tion of the term of his partnership agreement, — 
 Held, that the rent for the whole term could not 
 be made a firm debt by parol, as such a term 
 could not be created or assigned by parol ; that 
 as by its terms it was not to be performed within 
 one year, the agreement was void ; and that such 
 partner, if liable as assignee of the lease, was only 
 liable while the privity of estate continued, and 
 could not be held liable for rent accruing after 
 he liad transferred and surrendered possession 
 of tlie premises. Com. App., 1874, Durand t. 
 Curtis, 57 N. Y. (12 Sick.) 7. 
 
 48. Where a loan was made to one member of 
 a firm, expressly for the purpose of buying up 
 the notes of an old firm of the same name, in 
 which all the members of the new firm except 
 one were partners, but the debts of which were 
 not assumed by tlie latter firm, such partner 
 giving in return notes signed and indorsed by 
 him in the firm name, but antedated prior to the 
 dissolution of the old firm ; and such loan was 
 deposited in the name of the new firm, but 
 credited u{)on its books to tlie partner obtaining 
 it, and paid out by him chiefly upon the old 
 debts, the other partners knowing nothing of 
 the matter, — Held, that the firm was not liable 
 upon tlie notes. Ct. App., 1871, Dounce v. Par- 
 sons, 45 N. Y. (6 Hand,) 180. 
 
 49. A firm is not liable upon the note of a 
 partner, given for loans advanced upon his 
 individual credits although the proceeds were 
 applied to the payment of partnership debts. It 
 is only where tlie name used, and to which credit 
 is given, is the name adopted and used to desig- 
 nate the partnership tliat the firm have been 
 lield. Ct. App., 1871, National Bank of Salem v. 
 Thomas, 47 N. Y. (2 Sick.) 15. 
 
 50. Tlie delivery by one partner to a third 
 party, for his accommodation, of a blank draft, 
 signed by him in the firm name without the 
 consent of his co-partners, containing neither 
 amount, date, name of payee or of drawee, will 
 bind the firm as an authority to such third party 
 to flu the same and negotiate it, upon wliich 
 others may rely ; and this, though such filling 
 be done in the presence of the party discounting 
 it. Com. App., 1871, Chemung Canal Bank v. 
 Bradner, 44 N. Y. (5 Hand,) 680. 
 
 51. Where W lent liis note to M, and, after sev- 
 eral renewals fortlie benefit of M, it was again re- 
 newed by a note in favor of the firm of B and M, 
 which was also several times renewed, B not 
 knowing that it was given for the accommoda- 
 tion of M, and finally was paid by a check of tlie 
 firm drawn by B, payable to the order of W, 
 and delivered to M and he delivered it to W 
 without requiring him to execute a new note, — 
 Held, that the firm, when it gave the check, 
 knew or was bound to know that M was bound 
 to indemnify W against the payment of the note, 
 and that tlie firm was bound by the action of M 
 in so delivering the check, notwithstanding any 
 special instructions or understanding that lie 
 should take a new note from W for the amount. 
 BABBonB, C. J., dissents. N. Y. Supr. Ct., 1873 
 Ross V. Whitejield, 36 N. Y. Supr. (4 J. & Sp.) 
 60 ; Aft'd, S. C, 56 N. Y. (11 Sick.) 640. 
 
 52. The maker of the note not being liable on 
 it to the firm, and the check having been, used 
 to pay to the holder a debt of the firm as indor- 
 sers thereof, such maker is not liable either to 
 the firm or to their assignee for the amount of 
 the check. lb. 
 
 58. A firm which keeps its bank account in the 
 name of one partner and draws all checks in his 
 
 name, all the partners assenting, is liable upon 
 any check thus drawn by a partner in its busi- 
 ness. Ct. App., 1871, Crocker v. Colwell, 46 N. Y. 
 (1 Sick.) 212. 
 
 54. Where, by a partnership agreement, no 
 firm name was adopted, but A, one of the part- 
 ners, was to give his entire time to the business, 
 and was authorized to draw drafts and indorse 
 paper to raise money for the business, while the 
 other, B, had no duties to perform and was to 
 share in the profits simply, assuming no part of 
 the losses except to the amount of his capital in- 
 vested, — Held, that it was to be inferred that the 
 firm business was to be transacted in the name 
 of A, and that B was liable in a draft drawn 
 by A in his own name and negotiated for the 
 benefit of the business, although not known by 
 the payee as a partner at the time of discounting 
 it. Gray, C, dis.sents. Ontario Bank v. Hen- 
 nessey, 48 N. Y. (3 Sick J 545. 
 
 55. Ratificatioa. Where an individual part- 
 ner being indebted to parties who are also cred- 
 itors of the firm, gives them a note in the firm 
 name, but without the knowledge or consent of 
 his co-partners, and the same is applied on his 
 debt, a subsequent payment of tlie note by the 
 firm will not be a ratification of the unauthorized 
 act of the partner who gave it, unless made with 
 full knowledge of the improper use thereof. Sup. 
 Ct, 1873, Hayes v. Baxter, 65 Barb. 181. 
 
 56. Where one party furnishes money with 
 wliich another is to carry on business on their 
 joint account, the latter being limited to doing 
 a cash business only, and the former not to be 
 liable in any event beyond the capital he put in, 
 if such manager makes purchases to an amount 
 exceeding such capital sum, on credit, from par- 
 ties' having notice of the agreement, and the 
 former, having knowledge of the fact, makes 
 no objection to the business being so carried on,- 
 he is liable for the debt so contracted. Sup. Ct., 
 1875, Mason v. Partn'rfje, 4 Hun, 621. 
 
 57. Sale of lauds. A sale by one partner 
 to a creditor of the firm in part payment of the 
 firm debt of an undivided one-half of lands, to 
 which he has the legal title, but which in equity 
 belong to the partnership, vests a good title in 
 his grantee, notwithstanding such conveyance 
 was made without the knowledge of the other 
 partner, and its effect would be to give to sueli . 
 grantee a preference over other creditors, the firm 
 being insolvent. Hunt and Leonaed, CC, con- 
 tra. Com, App., 1871, Fan Brunt v. Applegate, 
 44 N. Y. (5 Hand,) 544. 
 
 58. Liability for fraud of one. All of 
 the members of a co-partnership are civilly re- 
 sponsible in damages for fraudulent representa- 
 tions made by either in the firm business. Com. 
 App., 1873, Getty v. Devlin, 54 N. Y. (9 Sick.) 
 403. 
 
 59. Although one partner of a firm dealing in 
 lands cannot convey the whole title unless it is 
 vested in him, yet he may, by virtue of his 
 agency for the firm, enter into an executory 
 contract to convey ; and if in the course of the 
 partnership business, for the purpose of promot- 
 ing a sale of its lands, one of the partners com- 
 mits a fraud, as, by pouring petroleum oil upon 
 them to induce the belief that they are oil lands, 
 his cOTpartners are liable therefor as in an ordi- 
 nary partnership. Com. App., 1873, Chester v. 
 Dickinson, 45 How. 326 : S. C, 64 N. Y. ( 9 
 Sick,) 1, . . , I 
 
 60. Special partner, liability of. The 
 
 omission of a special partnership, on removing 
 their place of business from the county where it 
 was originally established to another county, to 
 
PARTNERSHIP. 
 
 537 
 
 file in the clerk's ofBoe of the latter county a 
 certificate or transcript of the certificate of the 
 terms of partnership, renders such partnership 
 general. Ct. App., 1870, Riper v. Poppenhausen, 
 43 N. Y. (4 Hand,) 68. 
 
 61. A special partner who, during the term of 
 a limited partnership, buys out the whole prop- 
 erty of the firm, and continues the same business 
 in his own name and on his own account, does 
 interfere with the firm business within the mean- 
 ing of sec. 17 of the act relating to limited part- 
 nerships (1 R. S. 766 ; 1 Edm. Stats. 719), and 
 makes himself liable as a general partner, and 
 his liability extends to debts previously contract- 
 ed by the firm, as well as to those which are 
 subsequent. Sup. Ct., 1871, First National Bank 
 of Canandaigua v. Whitney, 4 Lans. 34. 
 
 62. One who is induced by fraud to become a 
 member of a co-partnership, upon an understand- 
 ing that he shall be merely a special partner, is 
 nevertheless liable to creditors as a general part- 
 ner, if the provisions of the statute relative to 
 limited partnerships is not complied with. Sup. 
 Ct.,- 1874, Toumade v. Methfessel, 3 Hun, 144. 
 
 63. He cannot relieve himself from liability 
 upon contracts entered into by the firm while he 
 continued a member, by rescinding the partner- 
 ship agreement for fraud. lb. 
 
 64. Dissolution by assignment of in- 
 terest. If one member of a partnership assigns 
 all his interest therein to one of his co-partners, 
 with the assent of the others, the partnership is 
 thereby dissolved, and a third party entitled, by 
 contract with another member of the firm, to an 
 assignment of two-fifths of such partner's interest 
 on dissolution of the firm, can maintain an action 
 to enforce his rights after it has been so dissolved. 
 Sup. Ct., 1875, Sistare v. Gushing, 4 Hun, 608. 
 
 65. A sale by one partner to his co-partners of 
 all his interest in the firm, except the accounts 
 and indebtedness due or to become due, upon 
 dissolution by mutual consent, covers the unpaid 
 portion of the capital which was agreed to be 
 paid in by the vendees, and their liability to the 
 firm for moneys withdrawn by them, and excepts 
 only debts due from third parties. Sup. Ct., 
 1872, Flynn v. Fish, 7 Lans. 117. 
 
 66. If the debts of the firm exceed the amount 
 collectible from the accounts, the retiring part- 
 ner is liable for his share thereof. lb. 
 
 67. A naked transfer, by one partner to his 
 co-partner, of his interest in the partnership prop- 
 erty, vests the title absolutely in the latter ; 
 and the outgoing partner, unless he has express- 
 ly reserved to himself that right, will have no 
 equity to compel an application of the partner- 
 sliip property to the payment of the partnership 
 debts. N. Y. Supr. Ct, 1870, Cory v. Long, 2 
 Sweeny, 491. . 
 
 68. A mere agreement by the partner taking 
 the transfer, that he will assume and pay such 
 debts, raises no equity in favor of the other. 
 McCuNN, J., dissents. lb. 
 
 69. — Ijyloss of capital. Entire loss of the 
 capital provided by the articles of co-partner- 
 ship, in carrying on the business of the firm, 
 works a dissolution of the partnership, and jus- 
 tifies a partner in refusing further to prosecute 
 the business. Sup. Ct., 1871, VanNess v. Fisher, 
 5 Lans. 236. 
 
 70. — by notice. Where, by the terms of a 
 partnership agreement; the partnersliip was to 
 be terminated upon three months' notice by 
 either partner, in which case R, a member of 
 the firm, was to have the privilege of purchas- 
 ing the stock after inventory taken, — Held, 
 that the provision for an inventory as a condi- 
 
 tion precedent might be waived, and that the 
 continuance of R in possession of the property 
 after giving the required notice, claiming to be 
 the owner and being recognized as such by the 
 other partner, warranted an inference of such 
 waiver, and, of an underatanding that he was to 
 take the property, and ftiat the partnership was 
 terminated. Com. App., 1873, Bachia v. Ritchie, 
 51 N. Y. (6Siok.) 677. 
 
 71. — by war. All commercial partnerships, 
 existing between the subjfects of loyal and re- 
 bellious Stales prior to the civil war of 1861, 
 were dissolved by the mere act and force of the 
 war itself. Ct. App., 1870, Woods v. Wilder, 43 
 N. Y. (4 Hand,) 164. 
 
 72. By the civil war of 1861, all commercial 
 partnerships existing between citizens of the ter- 
 ritories of the two belligerents were dissolved, 
 and a note indorsed in the firm name of such a 
 partnership during the war will not bind the sev- 
 eral partners. Ct. App., 1872, Bank of New Or- 
 leans v. Matthews, 49 N. Y. (4 Sick.) 12. 
 
 78. The existence and lawfulness of commer- 
 cial relations betwee'n the citizens of insurrec- 
 tionary and loyal States was recognized by the 
 act of Congress of July 13, 1861, and by the 
 proclamations of the President prior to that 
 date ; consequently, until such intercourse was 
 prohibited by the proclamation of August 16, 
 1861, issued in pursuance of such act of Con- 
 gress, a co-partnership existing between citizens 
 of the two sections was not terminated by rea- 
 son of war. Ct. App., McStea v. Matthews, 50 N. 
 Y. (5 Sick ) 166 ; Rev'g S. C, 3 Daly, 349. 
 
 74. Deceased partner's estate VT-hen lia- 
 ble. The estate of a deceased partner is liable 
 for the firm debts, only in case of the insolvency 
 of the survivor; but that fact may be shown by 
 common-law proof, and it is not necessary that 
 the remedy at law should first be exhausted 
 against such survivor. Ct. App., 1870j Riper v. 
 Poppenhamen, 48 N. Y. (4 Hand,) 68. 
 
 75. Personal representatives of a deceased 
 partner may be sued in equity for a partnersliip 
 debt, after the creditor has exhausted his remedy 
 at law against the surviving partner, by judg- 
 ment and execution thereon returned unsatisfied ; 
 or without such suit against the survivor if he is 
 insolvent. Sup. Ct,1872, Pope v. Cole, 64 Barb. 
 406. 
 
 76. Firm note after dissolution. A note 
 made in the firm name, witli the assent of the 
 partners, and for a debt of the firm, is a valid 
 obligation, although made after the dissolution 
 of the partnership. Sup. Ct., 1874, Randolph v. 
 Peck, 1 Hun, 138. 
 
 77. The existing liability of the firm is a suffi- 
 cient coiftideration for the note, particularly 
 when an extension of time of payment is secured 
 thereby, lb. 
 
 78. Fraudulent use of firm name. Where 
 A, as a partner of B and C, was doing business 
 under the firm name of A & Co., and was at the 
 same time carrying on an independent business 
 under the same firm name, and B, on discovering 
 that fact, dissolved partnership with A, each 
 party being autliorized to use the firm name in 
 liquidation, and A continued his independent 
 business In the same firm name ; — Held, that B 
 was liable upon a draft accepted by A in that 
 name, but relating to such separate business, to 
 one who had previously been informed that he 
 was a partner, but had no knowledge of tlie set- 
 tlement ; and he could not set up the fraud of A 
 as a defense. Sup. Ct., 1875, Merchant's Bank of 
 Canada v. Holland, 4 Hun, 420. 
 
 79. Power of partner after dissolution. A 
 
538 
 
 PARTNERSHIP. 
 
 partner has power, even after dissolution, to bind 
 his co-partners by contracts within the general 
 scope of their business, when made with parties 
 having no notice of the dissolution. Cora. App., 
 1871, Chemung Canal Bank v. Bradner, 44 N. Y. 
 (5 Hand,) 680. 
 
 80. Sights of survivor. Upon the death 
 of one of two co-partners, the right and duty of 
 closing up the partnership affairs falls upon the 
 survivor, and all that passes to the representa- 
 tives of the deceased is his proportion of the 
 assets after they have been converted into mon- 
 ev and all the debts and liabilities paid. N. Y. 
 Supr. Ct., Sp. T., 1873, Carrere v. Spofford, 46 
 How. 294 ; S. C, 15 Abb. N. S. 47. 
 
 81. All actions in respect to contracts of the 
 firm must be brought by or against the survivor, 
 and after his death, it seems, bis legal represen- 
 tative is the proper jjerson to sue and be sued 
 on such contracts. lb. 
 
 82. Where a partnership was in possession of 
 premises, under a, lease for three years, with the- 
 privilege of five, upon giving three months' 
 notice of an intention to extend the term next 
 prior to the expiration thereof, and one of the 
 partners died during the term, — Held, that the 
 survivor had the right to give the notice and so 
 extend the term, and that he could also in his 
 own name sue for tlie breach of a covenant con- 
 tained in the lease, occurring after the expiration 
 of tlie three years. Com. App., 1872, Belts v. 
 June, 51 N. Y. (6 Sick.) 274. 
 
 83. If a party who has entered into a sealed 
 contract with city authorities for street repairs 
 afterward takes a partner, agreeing to share the 
 profits with him, but before completing the work 
 dies, the surviving partner cannot maintain an 
 action at law against the city to recover moneys 
 due on the contract. Sup. Ct., 1872, Duff v. 
 Gardner, 7 Lans. 165. 
 
 84. The executor of the deceased would be 
 bound to complete the work, and would be en- 
 titled in equity to receive the price ; and if, in 
 an action by the surviving partner against the 
 city, the latter pays the money claimed into 
 court, and procures such executor to be substi- 
 tuted as defendant, he is entitled to judgment 
 for such money. lb. 
 
 85. Adjustment of concerns. As between 
 partners there are no profits until all the losses 
 and expenses are paid, no matter in what pro- 
 portions the several partners are entitled to share 
 them ; and where thiey intelligently agree to 
 share the losses equally, although contributing 
 in unequal shares to the capital, they may be 
 held to such agreement. Com. App., 1872, East- 
 wood V. McNulty, 44 How. 392. 
 
 86. Where one clause of the article** provides 
 for sharing the losses equally, but a subsequent 
 one provides for, first, the payment of debts, 
 second, repayment of capital in full or ratably, 
 and third, distribution of the surplus, if any, in 
 part proportionally to capital furnished, that 
 must control, and the debts be paid out of the 
 whole business, and tlie remainder distributed 
 as agreed. lb. 
 
 87. Where, by the terms of a partnership 
 agreement, the partners were to contribute in 
 unequal shares to the capital stock, " to be used 
 and employed in common between them," in the 
 firm business, to which each of the partners was 
 at all times to contribute his best efforts ; and 
 the expenses and profits were to be shared 
 equally by them, except that the one con- 
 tributing the lesser capital was to pay inter- 
 est upon the difference, and all losses were 
 to be borne and paid equally,-.— fleW, that on 
 
 an accounting upon dissolution of the firm, 
 each partner, after payment of the debts, was 
 entitled to a return of the capital stock remain- 
 ing in proportion to the amount put in by him, 
 notwithstanding a subsequent clause of the 
 agreement, whereby it was provided that on dis- 
 solution " all and every the stock and stocks, as 
 well as the gains and increase thereof," in whatr 
 ever form remaining, should be divided between 
 them share and share alike. N. Y. C. P., 1871, 
 Neudecker v. KoUberg, 3 Daly, 407. 
 
 88. The right of each partner to a return of 
 the capital invested by him is only to be de- 
 stroyed by express stipulation to the contrary, 
 and the clause referred to, if of that character, 
 is repugnant to the former provisions of the 
 same agreement and therefore inoperative. lb. 
 
 89. Where A, being the owner of a grist mill, 
 sold one-half thereof to J, at the same time 
 forming a co-partnership with him to carry on 
 the milling business, and the firm subsequently 
 took K as a co-partner, selliag him one-third of 
 the mill, the purchase-money owing by J and K 
 to be paid out of the profits of the business, — 
 Held, 1st, that, on a dissolution of the partner- 
 ship and accounting between the partners, the 
 mill was to be deemed the property of the firm, 
 and the share of each partner was liable for any 
 debt due from him to the others or either of 
 them ; 2d, that the mill was liable to be sold, 
 and the proceeds appropriated as partnership 
 property, and it could be sold under a judg- 
 ment for the dissolution of the partnership ; 3d, 
 that A was entitled to one-third the proceeds of 
 the mill, and also to the payment out of the 
 shares belonging to J and K of the amounts due 
 him from them respectively, with interest from 
 the formation of the partnership; 4th, that J 
 was entitled to whatever remained of one-third 
 of the proceeds after paying the amount due to 
 A, and also to one-haU the amount due from K 
 with interest from the formation of the new 
 partnership ; and 5th, that K was entitled to 
 whatever remained of one-third of the proceeds, 
 after deducting the amount due from him to his 
 co-partners. Sup. Ct., 1873, Parker v. Parker, 65 
 Barb. 205. 
 
 90. A lease for a term of years made by one 
 partner to the firm, terminates upon the disso- 
 lution of the firm by the death of one partner, 
 and is not to be considered in the adjustment of 
 the partnership affairs, except where the death 
 occurs before the end of the year, and the firm 
 have had the entire beneficial use of the prop- 
 erty for the year, in which case the lessor should 
 be credited with the year's rental. Ct. App., 
 1873, Johnson v. Hartshome, 52 N. Y. (7 Sick.) 
 173. 
 
 91. Where the interest of one partner in the 
 partnership property, consisting partly of real 
 estate, was, on dissolution, purchased by a third 
 party, who formed a partnership with the other 
 partner, under a parol agreement that he should 
 take the same interest as his vendor, — Held, 
 that, as between such partners, in closing their 
 accounts, the real estate would be treated as 
 equitable assets. Ct. App., 1872, Garrett v. 
 Scheffer, 47 N. Y. (2 Sick.) 656. 
 
 92. Where a firm, composed of general and 
 special partners, sold out its entire stock and 
 fixtures to the special partner, on an agreement 
 that the purchase-money should be applied first 
 to the debts of the old firm, and all be paid 
 within a time specified ; and thereupon tlie firm 
 was dissolved and a new one formed composed 
 of all the old partners except one, which 
 undertook, with the old firm to wind up its 
 
PARTY WALL. 
 
 539 
 
 affairs, pay all its debts by the time specified 
 for tlie payment of the purchase-money of the 
 stock, &c., and make distribution among its 
 members ; and that the individual members of 
 each firm should have free access at all times 
 to, and supervision of the accounts, collections, 
 and business of liquidation, — Held, 1. That the 
 stock and fixtures ceased to be the property of 
 the old firm ; but the claim for purchase-money 
 was a debt due to it ; 2. That the retiring part- 
 ner retained his interest in the assets of the 
 firm, and had an interest in having the debts due 
 it collected, and the collections applied to the 
 payment of its debts, and, therefore, had a right 
 to supervise tlie business of liquidation, and 
 receive all information respecting collections, to 
 ask for, and be informed why tliey were not 
 made, and to have access to the books of the 
 firm. N. Y. Supr. Ct., 1871, White v. Colfax, 33 
 N. Y. Supr. (IJ. &Sp.)297. 
 
 93. Pay out of profits. A member of an 
 association who is entitled by agreement to pay 
 for certain services out of the profits, can recov- 
 er the amount due him therefor, as shown by 
 an account rendered by him and acted upon by 
 the partnersliip, in an action for an accounting 
 and payment of the amount due, notwithstand- 
 ing a greater claim set up by a third party but 
 denied by the partnersliip, and not noticed in 
 such account, is proved to exist. Sup. Ct., 1872, 
 Luce V. Hartshorn, 7 Lans. 331 ; Aff'd, S. C, 56 
 N. Y. (11 Sick.) 621. 
 
 94. — for services. A partner cannot be al- 
 lowed compensation for liis services in superin- 
 tending and managing the business of the firm, 
 except upon proof of an express agreement to 
 that effect. Sup. Ct., 1871, Lyon v. Snuder, 61 
 Barb. 172. 
 
 95. Interest. There is and can be no fixed 
 rule in settling partnership accounts, in respect 
 to interest ; but its allowance must necessarily 
 depend upon the circumstances of each case. 
 Ct. App., 1873, Johnson v. Hartshome, 52 N. Y. 
 
 ■ (7 Sick.) 173. 
 
 96. Compound interest should not be allowed 
 a partner upon the balance due him, but as to 
 debits, the rule is otherwise, and compound In- 
 terest may be charged upon them in cases of 
 bad faith, refusal to account, and private use of 
 money ; and the question of its propriety is for 
 the referee, whose decision is conclusive. lb. 
 
 97. Assumption of debts. Where a new 
 firm formed upon the dissolution of an old one, 
 takes all its assets and assumes all its debts, it 
 thereby becomes primarily liable for such debts 
 to the creditors of the old firm, although the 
 original debtors are not discliarged. Sup. Ct., 
 1875, Carman v. Kelly, 5 Hun, 283. 
 
 98. An agreement by one of two partners, on 
 the dissolution of the firm, to pay the firm 
 debts, and the acceptance by a creditor know- 
 ing of the dissolution, of the note of such part- 
 ner in payment of the firm debt, discharges the 
 other partner. Ct. App., 1874, Millerd v. Thorn, 
 15 Abb. N. S. 371. But not so, where he ac- 
 cepts it merely on condition, that, if paid, it 
 shall cancel such debt, but, otherwise, he sliall 
 liold the firm. Sup. Ct., 1874, Vernam v. Harris, 
 1 Hun, 451. 
 
 99. Receiver. Although, upon dissolution 
 of a partnership, it is agreed that one or more 
 partners shall wind up its concerns, yet, if such 
 partners violate their agreement in respect 
 thereto, or the other partners, or any of them, 
 are denied their rights secured by such agree- 
 ment, or such a state of feeling exists between 
 the parties that the rights of supervision of any 
 
 of them cannot be exercised without great un- 
 pleasantness and embarrassment, a receiver may 
 properly be appointed at the instance of such 
 other partner or partners. N. Y. Supr. Ct., 1871, 
 White V. Colfax, 33 N. Y. Supr. (1 J. & Sp.) 297. 
 
 100. Such receivership may be continued, not- 
 withstanding the original cause therefor has 
 been removed, if other sufficient causes have 
 arisen which cannot be removed. lb. 
 
 101. Retiring partner when surety mere- 
 ly. When one of several partners retires from 
 the firm, and transfers his interest in it to a 
 third person, who is accepted as a partner, and 
 assumes all the obligations of the retiring part- 
 ner, tlie latter becomes, as between himself and 
 the new firm, a mere surety on an outstanding 
 note of the old firm, and if such note is assigned 
 to a member of the new firm and by him trans 
 ferred to a third party after its maturity, tlie 
 latter cannot recover thereon against the retir- 
 ing partner, the transfer to one of the new firm 
 having tlie effect to extinguisli it as to him 
 Sup. Ct., 1874, Morss v. Oleason, 2 Hun, 31. 
 
 PABTY WALL. 
 
 1. Contribution. A parol contract between 
 adjoining proprietors to build a party wall, one- 
 half on the land of each, can be specifically en- 
 forced after it has been partly built by them, 
 and one has planned his building and prepared 
 his materials with reference to and relj'ing upon 
 its construction ; or such party may, after no- 
 tice to the other, go on and complete it if the 
 latter refuses to proceed, and maintain an ac- 
 tion for contribution. Lott and Eakl, CC, 
 dissent. Com. App., 1874, Rindge v. Baker, 57 N. 
 Y. (12 Sick.) 209. 
 
 ' 2. Upon judgment in favor of the plaintiff, in 
 such a case, the defendant would be entitled to 
 and be protected in tlie enjoyment of an ease- 
 ment in such wall. lb. 
 
 3. Grant of land sustaining. Where the 
 owner of a brick building conveyed, without 
 reservation, to the owner of an adjoining lot,' 
 the land upon which one-lialf his wall on the 
 side next such grantee's lot stood and the latter 
 afterward built against such wall, and it was 
 used by the parties and their grantees as a party 
 wall for 10 years, — Held, that it was a party 
 wall. Sup. Ct., 1871, Brooks v. Curtis, 4 Lans. 
 283 ; Aff'd, S. C, 50 N. Y. (5 Sick.) 639. 
 
 4. Verbal agreement as to. One who 
 builds a party wall, one-half on each side of the 
 boundary line, under a verbal agreement with 
 the adjoining proprietor, he agreeing to pay 
 one-half the value wlien he shall use it, owns 
 the wall absolutely until the other elects to use 
 it, with a permanent right in himself and his 
 grantees to liave one-lialf thereof stand upon 
 the land of the other, not only while the latter 
 retains the title, but after he has conveyed it to 
 a purchaser having notice of tlie rights of tlie 
 former. Per Dwight, C. Com. App., 1874, 
 Brown V. McKee, 57 N. Y. (12 Sick.) 684. 
 
 5. The owner of the land burdened with the 
 easement, upon electing to use the wall and 
 paying one-half its value, becomes owner of the 
 half standing on his own land, and also has an 
 easement in the other half. lb. 
 
 6. Whether the covenant to pay for the wall 
 runs with the land or not, in law, a grantee of 
 the covenantor having notice is bound in equity, 
 and he cannot avail himself of the wall without 
 paying the 'builder, or his grantee to whom the 
 
540 
 
 PASSENGER— PAYMENT. 
 
 wall passes as an incident to his grant, and who 
 owns the wall at the time he appropriates it. 
 Ih. 
 
 PASSENGER. 
 See Cabbies; NEauoEircE ; Bailboads. 
 
 PATENT. 
 
 1. Property in. The assignment of a patent 
 rests in the assignee an interest or property 
 therein, of which the patentee cannot deprive 
 him, without his consent, by any act of surren- 
 der or otherwise. Sup. Ct., 1875, Barnes y. Mor- 
 gan, 3 Hun, 703. 
 
 2. Such interest may be assigned by opera- 
 tion of law, in case of the bankruptcy of the 
 patentee ; and, although not subject to seizure 
 or sale at common law, it might be reached by 
 creditor's bill, and may now by supplementary 
 proceedings. lb. 
 
 PAYMENT. 
 
 1. By check. The delivery and receipt of a 
 check is not a payment, unless the parties so 
 agree, or the drawer has sustained some loss or 
 injury by reason of some laches on the part of 
 the holder, and then only pro tanto. Sup. Ct., 
 1875, Sweet v. Titus, 4 Hun, 639. 
 
 2. A creditor is not bound to accept a check, 
 when tendered, even though for the full amount 
 of his claim. Nor is he bound to receive money, 
 but he may refuse it when sent to him, or keep 
 it subject to the order of the debtor, and leave 
 the latter to his plea of tender. lb. 
 
 3. If the holder of a check, on presenting it 
 to the drawee, chooses to have it certified instead 
 of paid, the certification, as between himself and 
 the drawer, has the effect of a payment. Ct. 
 App., 1873, First National Bank of Jersey City v. 
 Leach, 52 N. Y. (7 Sick.) 350. 
 
 4 By draft. Where a debtor gave his 
 creditor his draft on a third party, which, if ac- 
 cepted and paid, was to satisfy the debt, but on 
 a subsequent settlement between such debtor 
 and the drawee he was found to be owing the 
 drawee, and no allowance was made on account 
 of the draft, — Held, that the failure of the cred- 
 itor to give notice of the non-payment of the 
 draft did not render it a payment, so as to dis- 
 charge tlie debtor. Sup. Ct., 1872, Stewart v. 
 Millard, 7 Lans. 373. 
 
 0. By note, etc. The receipt of a note, bill 
 or check, on an account, does not operate as 
 payment, except by express agreement ; but 
 any laches on the part of the creditor, whicli 
 would discharge the drawer or indorser, will as 
 effectually extinguish the debt for payment of 
 which such instrument was transferred. Ct 
 App., 1870, Smith V. Miller, 43 N. Y. (4 Hand,) 171." 
 
 6. Where a contract for the sale of land calls 
 for money payni'ents, a note of a third person 
 received by the vendor on the day of the date 
 of the' contract, and indorsed upon the contract 
 as received tliereon, is not to be deemed taken 
 in payment, unless on positive proof to that 
 effect. Sup. Ct., 1875, Whitaker v. Whitaker, 
 4 Hun, 810. 
 
 7. When a creditor of a partnership, after its 
 
 dissolution„knowing that one partner has agreed 
 with the other to assume and pay the debts of 
 the firm, takes the negotiable note of the part- 
 ner so assuming the debts in payment of the 
 debt of the firm to himself, extending the time 
 of payment until the maturity of such note, he 
 thereby cancels the claim against the firm and 
 discharges the other partner. Ct. App., 1874, 
 MiUerd V. Thorn, 15 Abb. N. S. 371 ; S. C, 56 
 N. Y. (11 Sick.) 402. Not so, if he merely ac- 
 cepts such note conditionally, that if paid it shall 
 cancel the debt, but, if not, he will hold the firm 
 therefor. Sup. Ct., 1874, Vernam v. Harris, 1 
 Hun, 451. 
 
 8. Where a creditor agrees to and does ac- 
 cept from his debtor the note of a third party in 
 payment of his , account, both parties being 
 ignorant that the maker was at tlie time insolv- 
 ent, such creditor may, on discovering that fact, 
 rescind and recover on the original account. Ct. 
 App., 1870, Roberts v. Fisher, 43 N. Y. (4 Hand,) 
 159 ; Rev'g S. C, 53 Barb. 69. Unless it ap- 
 pears that he agreed to receive the note in pay- 
 ment, whether the makers were insolvent or not. 
 S. C, 65 Barb. 303. 
 
 9. A creditor taking the note of a third party 
 upon his claim, but without intending it as pay- 
 ment, may use all lawful means to collect it by 
 judgment and execution or otherwise ; and if, 
 in the end, he fails to procure or enforce pay- 
 ment of the note, his claim against the original 
 debtor will still remain and can be enforced. 
 Com. App., 1874, Clajlin v. Ostrom. 54 N. Y. (9 
 Sick.) 581. 
 
 10. Where commercial paper is received by 
 a vendee in payment for chattels sold, delay in 
 presenting it, unless with the consent of the 
 vendor wlio indorses it, will discharge the latter, 
 and the question whether or not the paper was 
 so received is one for tlie jury, to be decided 
 upon all the evidence. Ct. App., 1871, Darnall 
 V. Morehouse, 45 N. Y. (6 Hand,) 64; Eev'g S. 
 C, 36 How. 511. 
 
 11. Where, upon a sale of hogs for cash on 
 delivery, the agent of the purchaser, after weigh- 
 ing them, stated that he should have to go to a 
 bank at some distance for the funds, and asked 
 the vendor which he preferred, the currency or 
 a draft, and the latter replied " a draft," where- 
 upon the agent stated that he would get one 
 payable to the vendor's order, and did so, after 
 obtaining permission to ship the hogs at once on 
 condition of obtaining the draft as soon as pos- 
 sible, which draft was accepted by the vendor ; 
 — Held, that whether the delivery of the hogs 
 was to be deemed conditional until receipt of 
 the draft, or a credit was given and the draft 
 received upon a precedent debt, in either case 
 the presumption was that it was received in 
 payment and satisfaction. Ct. App., 1871, Gib- 
 son V. Toltfiy, 46 N. Y. (1 Sick.) 637; Rev'g S. C, 
 53 Barb. 191. 
 
 12. By charge in bank account. Al- 
 though it has been ithe practice of a bank to 
 charge notes against one of its depositors, pay- 
 able at such bank, to his account, when he has 
 sufficient deposits to meet them, and not otlier- 
 wise, if a note falls due there when he has no 
 sufficient deposit, and it is not so cliarged to 
 him, a subsequent deposit by him of a. sufficient 
 amount but not by either party appropriated to 
 such note, cannot be treated as a payment there- 
 of so as to discharge an indorser, especially if 
 paid out with the acquiescence of the depositor 
 on another note of his subsequently becoming 
 due at such bank. Sup. Ct., 1875, National Bank 
 o/Newburgh v. Smith, 5 Hun, 183. . 
 
PAYMENT. 
 
 541 
 
 18. The mere entry by the book-keeper of 
 a bank, upon the journal of Its day's business, 
 of a charge to its president and pruioipal stock- 
 liolder, against a credit to a larger amount, of 
 certain mortgages held by the bank against him, 
 is not of itself sufficient to establish payment as 
 respects a subsequent incumbrancer, in the ab- 
 sence of proof that tlie entry was adopted by both 
 parties ; and especially where the mortgage was 
 subsequently assigned by tlie bank to a bmafide 
 purchaser, both the bank and its president as- 
 serting it to be wholly unpaid. Lott, Ch.C, dis- 
 sents. Com. App., 1872, Whitehouse T. Bank of 
 Cooperstown, 48 N. Y. (8 Sick.) 289. 
 
 14. In confederate money. Where an 
 agreement was made at Richmond, Va., at a time 
 when the only kind of money used in the banks 
 there was Confederate bills, and all checks 
 drawn thereon were payable in those bills, and 
 by the terms of the agreement payment was to 
 be made by check on one of such banks, — Held, 
 that the debt created thereby was- payable in 
 Confederate bills, and payment made therein 
 was valid. Sup. Ct., 1874, Lester v. Union Manf, 
 Co., 1 Hun, 288, 
 
 16. In legal tender notes. Under a cov- 
 enant in a lease to pay the yearly rent of six 
 pence sterling for every acre of land " in cur- 
 rent money of the State of New York, equal in 
 value to money of Great Britain," the lessor is 
 not entitled absolutely to payment in gold or 
 silver, but is bound to accept United States 
 legal tender notes, provided the number of dol- 
 lars offered be made equal in value to the 
 amount due in money of Great Britain. SUp. 
 Ct.. 1872, Stranaghan v. Youmans, 65 Barb. 392. 
 
 16. To administrator. A payment by a 
 savings bank to one who has been appointed 
 administrator of its depositor, will not protect it 
 against the depositor himself if he is alive at the 
 time, such appointment being void. N. Y. Supr. 
 Ct., Sp. T., 1874, Boderigas v. East River Savings 
 Inst., 48 How. 166. 
 
 17. To agent. The mere possession by an 
 agent of a promissory note, payable to the order 
 of the payee and not indorsed by him. Is not 
 sufficient evidence of his authority to receive 
 payment thereon ; and where it has only been 
 entrusted to him with authority to receive the 
 interest and a new note for the principal with 
 an indorser, a payment of both principal and 
 interest to him does not bind the principal. Ct. 
 App., 1872, Doubleday v. Kress, 50 N. Y. (5 Sick.) 
 410; Bev-g S. C, 60 Barb. 181. 
 
 18. To creditor. When a debtor pays his 
 debt to the creditor in person, the presumption 
 is in his favor that he paid it-properly and law- 
 fully, and the burden of proving the contrary is 
 upon one claiming the debt as assignee. Sup. 
 Ct., 1875, Heermans v. Ellsworth, 3 Hun, 478. 
 
 19. To holder of bank book. If the offi- 
 cers of the savings bank have no notice of fraud 
 upon the depositor, but exercise reasonable care 
 and diligence in making a payment to a person 
 presenting the pass-book, such payment is good. 
 Brooklyn City Ct., 1873, Hayden v. Brooklyn 
 Savings Bank, 15 Abb. N. S. 297. 
 
 20. To paying teller. Where a customer of 
 a bank, knowing that it has separate tellers for 
 receiving and paying out money, on demand of 
 the paying teller, pays to him over the counter 
 of the bank a debt due to it, not knowing that 
 the authority of such officer is so limited that he is 
 not authorized to receive the money, it is a pay- 
 ment to the bank and the bank is bound thereby. 
 Com. App., 1874, East River Nat. Bk. v. Gove, 
 57 N. Y. (12 Sick.) 597. 
 
 21. To possessor of note. Mere possession 
 of a note, unindorsed, by a persoif claiming to 
 be agent for the payee, does not confer appar- 
 ent authority to receive payment. Sup. Ct., 
 1874, Wardrop v. Dunlop, 1 Hun, 325; Aff'd by 
 Ct. App. 
 
 22. Where the owner of a note has immediate 
 notice of a payment made to the person liaving 
 possession of it, and remains silent three years, 
 leaving the money in the hands of such person, 
 and then writes him about it, and, in computing 
 the amount due, allows it as a payment and fails 
 to notify the maker of the note that such person 
 had no authority to receive payments, lie must 
 be held to have ratified the first payment and 
 conferred apparent authority to reeeive subse- 
 quent payments. lb. 
 
 23. To principal. Where a person deposits 
 money with another, with directions to pay it 
 over to a third party if called for before his re- 
 turn from a contemplated absence, and if not so 
 called for to pay it to himself on his return, and 
 takes a note therefor payable to such third party, 
 the payee of the note is a mere agent for the 
 depositor, and a payment to the latter of the 
 amount not called for by the payees during the 
 time contemplated, discharges the note. N. Y. 
 Supr, Ct,, 1872, Sickles v. Gillies, 85 N, Y. Supr. 
 (3J. &Sp.) 14. 
 
 24. By third person. A payment of a claim 
 secured by pledge, made by a third person on 
 account of the debtor although without his knowl- 
 edge, is equivalent to a payment by himself, 
 and satisfies the pledgee's claim. Ct. App., 1873, 
 Roberts V. Berdetl, 15 Abb. N. S. 177 ; S. C, 52 
 N. Y. (7 Sick.) 644. 
 
 25. Of principal in full. Where a creditor 
 has received the principal debt as such in full, 
 he can thereafter maintain no action for interest. 
 Sup. Ct., 1875, Tenth Nat. Bank v. Mayor, etc. of 
 New York, 4 Hun, 429. 
 
 26. Part payment. Payment of part of the 
 amount due upon an account does not operate 
 to release the same, although the creditor may 
 give a receipt in f ujl therefor ; but he may after- 
 ward bring an action to recover the balance. 
 Com. App., 1872, Ryan v. Ward, 48 N. Y. (3 
 Sick.) 204. 
 
 27. After action brought. If, after action 
 commenced, payment of the principal sum is 
 made to plaintiff's clerk, and he on learning the 
 facts receives and uses the money he thereby 
 extinguishes the debt ; but if he refuses to take it 
 and so notifies the defendant, he may still recover 
 the debt with costs. Sup. Ct. Cir., 1873, Keeler 
 V. Van Wie, 49 How. 97. 
 
 28. After notice of adverse claim. The 
 voluntary payment of a note by the maker to 
 the holder thereof, before lie has been sued or 
 enjoined by an adverse claimant of the note, is 
 valid, unless impeached for actual fraud, even 
 though the maker had prior notice of the adverse 
 claim, and that the title of such holder would be 
 contested on the ground that it was made in 
 fraud of the rights of'ajudgment creditor. Com. 
 App., 1871, Terry v. Wait, 47 How. 52 ; S. C, 
 48 N. Y. (3 Sick.) 657. 
 
 29. Application of payments. If neither 
 party makes any specific application of money 
 paid at the time of the paymefit, the law applies 
 it to the eldest claim then held by the party re- 
 ceiving against the party paying, and if there is 
 but one such claim then existing or due, it must 
 apply to that. N. Y. Supr. Ct., 1873, Shipsey v. 
 Bowery Nat. Bank ofN. Y., 36 N. Y, Supr. (4 J. 
 & Sp.) 601. 
 
 80. After such application by law, neither 
 
542 
 
 PAYING INTO COURT— PENAL ACTION. 
 
 party can make any different application to the 
 prejudice of third parties. lb. 
 
 31. Wliere a payment is made upon a general 
 account, and no direction is given by the debtor, 
 the law applies it to the earliest, items, and 
 where the causes of account are distinct, the 
 creditor may apply it at the time to any one of 
 them ; or, if he make no gpecifle application at 
 the time, may afterward apply it as he chooses, 
 if not prejudicial to the debtor. Ct. App., 1870, 
 Skeppard v. Steele, 43 N. Y. (4 Hand,) 52. 
 
 32. Where payments are made upon a con- 
 tinuous account, part of whicli was against an 
 old firm, and part against a new firm which has 
 succeeded it, without any specific appropriation 
 by either party, they are to be applied to the 
 earliest items in the account, although they were 
 made by the new firm, part of whose members 
 are not liable tlierefor; but especially so, if the 
 new partners have assumed their share of the 
 old liabilities. Sup. Ct., 1873, Coleman v. Lan- 
 sing, 65 Barb. 54. 
 
 33. — by creditor. A creditor who, at the 
 time a payment is made by his debtor without 
 direction as to its application, holds several 
 checks drawn by such debtor which have been 
 forwarded for collection and dishonored,'haB the 
 right within a reasonable time to elect upon 
 which Indebtedness he will apply it, and may 
 apply it upon a debt which he did not then 
 know to exist. Ct. App., 1875, Shipsey v. Bowery 
 Nat. Bank, 69 N. Y. (14 Sick.) 485. 
 
 34. — to legal demand. Where an account 
 or claim consists of items, or where several 
 debts are claimed, some of which are legal 
 charges and others illegal, a general payment 
 must be applied to the legal, to the exclusion of 
 the illegal charges. Sup. Ct., 1873, Huffstater v. 
 Hayes, 64 Barb. 573. 
 
 35. Where a complaint claims for board and 
 lodging, money advanced and liquors furnished, 
 amounting in the aggregate to a sum specified, 
 and acknowledges the receipt of a certain sum 
 in part payment, and it does not appear by tlie 
 complaint or by the testimony that such pay- 
 ments were intended to be applied on the items 
 for liquors, they should be applied first to the 
 other items. lb. 
 
 36. Over-payment. If one tenant in com- 
 mon of property wlio receives all the rents, in 
 accounting to a co-tenant for her share thereof, 
 credits and pays to such co-tenant, as her share, 
 a larger amount than is her due, he is entitled 
 to be allowed the amount of such over-payment 
 on a final accounting with such co-tenant, and is 
 not estopped by such statement of account from 
 claiming the same. N. Y. Supr. Ct., 1871, 
 Schettler v. Smith, 34 N. Y. SuprT (2 J. & Sp.) 17. 
 
 37. Recovering back. A voluntary pay- 
 ment, where there is no mistake of fact, but 
 merely one of law, cannot be revoked. Sup. Ct. 
 1873, Doll V. Earle, 65 Barb. 298. 
 
 38. One who agrees to abide the decision of 
 a court in a case then pending, as to the validity 
 of the U. S. legal tender act as apphed to prior 
 contracts, and pay the difference between gold 
 and currency in satisfaction of such a contract, 
 and does accordingly pay it, on the rendition of 
 a decision against the validity of the act, cannot 
 recover back the flioney, although that decision 
 is afterward overruled. lb. 
 
 89. The payment of a tax on personal prop- 
 erty, in obedience to an order of the county 
 judge made in proceedings in the nature of pro- 
 ceedings supplementary to execution, instituted 
 by a town supervisor, is not compulsory or 
 made under legal duress, but is voluntary, be- 
 
 cause the county judge has no authority to make 
 such an order, and it is therefore void. Ct. App., 
 1872, Bailey v. Buell, 50 JS. Y. (5 Sick.) 662; Rev'g 
 S. C, 69 Barb. 168. 
 
 PAYING INTO COUET. 
 See Peacticb. 
 
 PENAL ACTION. 
 
 1. Under State laws. Althoug^h an act of 
 Congress upon a subject within its jurisdiction 
 supersedes all State legislation upon the same 
 subject, yet the statutes of a State are not 
 tliereby repealed ; and an action may be main- 
 tained, after its passage, to recover a penalty 
 previously incurred under the State law. Ct. 
 App., 1871, Sturgis v. Spofford, 45 N. Y. (6 Hand,) 
 446, ■ 
 
 2. Employing unlicensed pilot. Under a 
 statute imposing a penalty of $100 upon " all 
 persons " employing an unlicensed pilot, only 
 one penalty can be recovered of the same person 
 for repeated employments. lb. 
 
 3. Extortion by railroad company. In 
 an action against a railroad company, under the 
 act of 1887, for extortion, as many penalties as 
 have been incurred previous to the commence- 
 ment of the suit may be recovered in one action. 
 N. Y. Supr. Ct., 1870, Johnson v. Hudson River 
 R. R. Co., 2 Sweeny, 298. 
 
 4. A railroad company having the right to 
 charge fare at the rate of four cents a mile on 
 the line of road operated by it, made a con- 
 tract with another company whicli had located 
 a road on a different route between two points 
 on the line of the former, by which the latter 
 company was to purchase the right of way and 
 grade the road on the line so located by it at 
 the joint expense of both, and for their joint 
 benefit, each to pay for itself the expense of the 
 superstructure of its own separate track. Tlie 
 latter company subsequently became consoli- 
 dated with others under an act which prohibited 
 a charge by the consolidated company of more 
 than two cents a mile fare on its road, and such 
 consolidated company completed the purchase 
 of the right of way named, and constructed one 
 track over the line, none other ever being built. 
 It also leased the road of the first named com- 
 pany, and, under the act of 1855 (3 Bdra. Stats. 
 647), acquired its stock and franchises. Held, 
 that such consolidated company did not thereby 
 acquire the right of charging four cents a mile 
 over the track so constructed by it, but became 
 liable to the statutory penalty for extortion, by 
 ■charging more than two cents per mile. Ct. 
 App., 1871, Fisher v. N. Y. Central^ H. R. R. R. 
 Co., 46 N. Y. (1 Sick.) 644. 
 
 5. Under the provisions of the act of 1857, to 
 prevent extortion by railroad companies, only 
 one penalty can be recovered for all acts com- 
 mitted prior to the commencement of the ac- 
 tion, lb. 
 
 6. The penalty provided by tliat statute may 
 be recovered by one who has paid the excessive 
 fare when riding merely for the purpose of ob- 
 taining such penalty. lb. 
 
 7. False stamps, &c. In order to render a 
 party liable to' the penalty prescribed by ch. 306, 
 Laws of 1862, as amended by ch. 209, Lrws of 
 1863 (3 Edm. Stats. 672, 6 lb., 90), for selling an 
 
PHYSICIAN AND SURGEON— PLANK ROADS. 
 
 543 
 
 article having upon it a false stamp, brand or 
 trade-mark, the sale must have been with intent 
 to defraud some person, .persons or body corpo- 
 rate or politic. Ct. App., 1871, Low v. HaU, 47 
 N. Y. (2 Sick.) 104. 
 
 8. Game, possession of. The provisions of 
 sees. 7 and 8, ch. 721, Laws of 1871, relative to 
 the preservation of game, are valid, and as 
 qualified by sec. 33, they prohibit not only the 
 killing»of certain game birds during certain 
 months, but also the having such birds in pos- 
 session after the first of March, even though 
 killed at a time when, by the act, the killing is 
 not prohibited, or brought from another State 
 where there is no such prohibition. Ct. App., 
 1876, Phdps V. Bxicey, 60 N. Y. (16 Sick.) 10. 
 
 9. An action may therefore be maintained 
 against one who had such game in his posses- 
 sion after the first of March, although received 
 from a distant State where the killing was law- 
 ful, and preserved by a patent process. lb. 
 
 10. Selling of. One who has in his posses- 
 sion or offers for sale the green skin or fresh 
 carcass of a deer, killed in violation of the act 
 for the preservation of moose, wild deer, &c. (eli. 
 898, Laws of 1867), is liable for the penalty, al- 
 though he acquired possession and title by pur- 
 chase at a sale on execution against the property 
 of the party who killed it. Sup. Ct., 1872, Bel- 
 lows V. Elmendoif, 7 Lans. 462. 
 
 11. Throvring ashes into harbor of New 
 York. By the law of 1857 (4 Edm. Stats. 66), 
 as amended by 1 Laws of 1872, p. 993, prohibit- 
 ing the throwing of ashes, &c., into the waters of 
 the port of New York, an action may be main- 
 tained against the master of tlie vessel offending, 
 under sec. 1 of the act, although the ashes were 
 thrown through an opening in the deck, such as 
 is mentioned in sec. 2. N. Y. C. P., 1873, Board 
 of Comm'rs of Pilots v. Frost, 4 Daly, 353. 
 
 12. To support such action, no previous no- 
 tice to such master or to the owner is necessary, 
 lb. 
 
 13. Toll-gate keeper, disobedience of. 
 Under the provisions of the Revised Statutes 
 imposing a penalty upon the gate-keeper of a 
 turnpike company for neglecting to obey an or- 
 der to throw open the' gates, made by the in- 
 spectors of turnpikes, all the penalties incurred 
 may be recovered in one action. Ct. App., 1873, 
 Suydam v. Smith, 52 N. Y. (7 Sick.) 383. 
 
 14. Trustee of corporation. An action 
 against a trustee of a manufacturing corpora- 
 tion, to enforce his personal liability on account 
 of the failure to file the report required by law, 
 is penal in its character, and does not survive 
 against his executor. Davis, J., dissents. Sup. 
 Ct., 1875, Bank of California v. Collins, 5 Hun, 
 209. 
 
 PHYSICIAN AND SURGEON. 
 
 1. liiability. One holding himself out as a 
 surgeon is liable for want of skill as well as for 
 negligence ; and the injured party may bring 
 his action to recover for damages resulting from 
 both, and recover on proof of damages resulting 
 from either. Sup. Ct, 1871, Carpenter v. Blake, 
 60 Barb. 488. 
 
 2. In a new case, or one in which the injury 
 or the disease is attende"d witli injury to other 
 parts, or other diseases are developed, for which 
 there is no established treatment, the patient 
 must trust to the skill and experience of the sur- 
 
 geon he calls j but in a case as to which there is 
 a long-established system of treatment, tlie sur- 
 geon should not depart from that system unless 
 lie is prepared to take the risk of establishing, 
 by his success, the propriety and safety of his 
 course. lb. 
 
 PILOTS. 
 
 1. State laws in force. The provisions of 
 the pilot act of 1853, prohibiting the employ- 
 ment of unlicensed pilots in certain cases, tliough 
 in substance repealed by Congress, by act passed 
 in 1866 (14 U. S. Stats, at Large), were again 
 restored by the proviso added to said act in 1867 
 (14 U. S. Stats, at Large, 412), and from that 
 time remain in full force. Ct. App., 1873, Board 
 of Cotnmissione7's of Pilots v. Piic. Mail Steamship 
 Co., 52 N. Y. (7 Sick.) 609. S. P., Henderson v. 
 Spoford, 10 Abb. N. S. 140 ; S. C, 3 Daly, 361 ; 
 Aff'd, 59 N. Y. (14 Sick.) 131. 
 
 2. To what apply. A vessel, generally en- 
 gaged in the coasting trade, and running regu- 
 larly between two ports of the United States, is 
 still liable for pilotage as a vessel from a for- 
 eign port, under sec. 29 of the State pilot act of 
 1857 (4 Edm. Stats., p. 84), if, while sailing un- 
 der a register, and not forced thereto by stress 
 of weather or other necessity, she stops at a 
 foreign port and • from there sails to the port of 
 New York. N. Y. C. P., 1873, Murray v. Clark, 
 4 Daly, 468. 
 
 3. A " licensed pilot," within the meaning 
 of sec. 29 of the pilotage act, is one deriving his 
 authority from the appointment of the board of 
 commissioners established by that act, and^no 
 others are entitled to the benefit of that provis- 
 ion. Ct. App., 1875, Brown v. Elwell, 60 N. Y. 
 (15 Sick.) 249. 
 
 4. No action for pilotage under that act can 
 be maintained by a pilot licensed under the laws 
 of New Jersey, who first spoke a vessel off Sandy 
 Hook, and wliose services were refused. lb. 
 
 5. It being lawful, under the act of Congress 
 of 1837, for a vessel going in or coming out of a 
 port situate upon waters wliich are tlie boundary 
 between two States to employ a pilot licensed 
 by either, it seems a vessel in charge of a New 
 Jersey pilot is not required to take a New York 
 pilot, and is exempted from tlie penalty imposed 
 by that section. lb. 
 
 6. The penalty or liability imposed by the 
 pilotage act (sec. 29, ch. 243, Laws of 1857), is 
 for not taking any pilot. There is no provision 
 requiring a vessel to take the first pilot who 
 offers, or to pay pilotage to him if he is not 
 taken, in case one is afterward taken. Ct. 
 App., 1875, Gillespie v. Zittlosen, 60 N. Y. 
 (15 Sick.) 449. 
 
 PLANK ROADS. 
 
 1. Estate in lands conveyed. An absolute 
 conveyance of lands to a plank-road company 
 vests in it the whole estate ; and the grantor re- 
 tains no property therein which would preclude 
 the State, with the assent of the plank-road 
 company, from devoting the land to other public 
 uses, though tliey should impose greater burdens 
 upon it than a plank-road, or even from declar- 
 ing by law that a surrender of any part of the 
 
544 
 
 PLEADING. 
 
 road by the company, should operate to trans- 
 fer the title of the company to the town. Ct. 
 App., 1872, Heath v. Barmare, 50 N. T. (5 Sick.) 
 302. 
 
 2. Order to repair. The inspectors of turn- 
 pikes, appointed formerly under the Revised 
 Statutes (1 E. S., 100), and now under ch. 45, 
 Laws of 1848, and not tliose mentioned in sec. 
 33 of ch. 210, Laws of 1847, are the proper of- 
 ficers to entertain and act upon complaints that 
 tlie roads are out of repair, and to order them 
 repaired if found defective. Ct App., 1873, 
 Suydam v. Smith, 52 N. Y. (7 Sick.) 383. 
 
 PLEADING. 
 
 I. The complaint.. 544 
 
 a. General principles. 
 
 b. Joinder of causes of action. 
 
 c. In particular actions. 
 
 II. Thk answek 551 
 
 a. General principles. 
 
 b. General and specific denials. 
 
 c. Counterclaim. 
 
 d. Particular defenses. 
 
 e. Sham andfrviolous answers. 
 
 m. Thebeplt 559 
 
 IV. The DEjtuERER 559 
 
 V. MOTIOKS TO COBRECT PLEADINGS .... 560 
 
 VI. Supplemental pleadings 561 
 
 VII. CONSTRDCTION OP PLEADINGS 563 
 
 VIIL Amendment ; variance 569 
 
 L The complaint. 
 a. General principles. , 
 
 1. Cause for arrest. In cases where the 
 facts constituting the ground for arrest are not 
 the same as those constituting the cause of 
 action, they should not be stated in the com- 
 plaint. A statement of such facts in the com- 
 plaint which are not pertinent to the cause of 
 action and necessary to be proved, is not suffi- 
 cient under sec. 228 of the Code to authorize an 
 arrest of the defendant. Ct. App., 1871, Elwood 
 V. Gardner, 10 Abb. N. S. 238 ; S. C, 45 N. T. 
 (6 Hand,) 849. 
 
 2. A complaint which charges that the de- 
 fendant was treasurer of a corporation during a 
 specified period, and " that during the time he 
 continued to act as such, he received among 
 other moneys the sum of $524 donated and col- 
 lected for the Sunday school of the Church of 
 the Redeemer, and belonging to the plaintiffs 
 herein," that the said money was demande'd of 
 defendant, "and he refuses to pay over the 
 same, or any part thereof, — and has converted 
 the same to his own use," does not show that 
 the moneys donated were received by de- 
 fendant in the course of his employment, or in 
 the performance of his duty as treasurer, i. e., in 
 a fiduciary capacity ; nor does it allege the con- 
 version as a tort ; so as to entitle the plaintiff 
 to an order of arrest, or an execution against 
 the person. N. Y. Supr. Ct.; 1873, Rector, etc. of 
 Church of the Redeemer v. Crawford, 36 N. Y. 
 Supr. (4 J. & Sp.) 307 ; Eev'g S. C, 14 Abb. 
 N. S. 200. 
 
 3. Character of plaintiff. A complaint in 
 foreclosure, whicli, in the title of the cause, 
 describes tlie plaintiffs as executor and execu- 
 trix, but, in the body of the complaint, alleges 
 
 and sets forth a good cause of action in the 
 plaintiffs' own right, is not demurrable on the 
 ground that the plaintiffs had no capacity to 
 sue, or that the complaint did not state facts 
 sufficient to constitute a cause of action ; but the 
 titles executor and executrix may be consideVed 
 as a description of their persons. Sup. Ct., 1874, 
 Murray v. Church, 1 Hun, 49 ; Aff 'd by Ct. App. 
 
 4. A complaint by an assignee in bankruptcy 
 which alleges " that the Insolvents were ad- 
 judged bankrupts pursuant to the act of Con- 
 gress to establish a uniform system of bank- 
 ruptcy," &c., passed March 2, 1867, and " tlie 
 plaintiff in like manner appointed assignee in 
 bankruptcy of said bankrupts," sets out the 
 appointment of the assignee with sufficient 
 certainty, especially, where no issue is raised 
 upon that point by answer ; the court being 
 bound to take notice of that act. Brooklyn City 
 Ct., 1873, Wheelock v Lee, 15 Abb. N. S. 24. 
 
 5. A mere addition of the words " the com- 
 missioners of the board of excise of county " 
 
 to the names of the plaintiffs in the title of a cause, 
 does not show that the action is brought by them 
 in their official capacity, but it is in law a mere 
 description of their persons, and indicates that 
 the action is the private action of the plaintiffs. 
 Sup. Ct., 1871, Bonesteel v. Garlinghouse, 60 Barb. 
 338. 
 
 6. In an action by a receiver, an allegation 
 that he was, by order of one of the justices of 
 the court, "duly" appointed receiver, &c., is 
 sufficient to entitle him to show on the trial all 
 the facts conferring jurisdiction. Ct. App., 
 1871, Rockwell V. Merwin, 45 N. Y. (6 Hand,) 
 166; Aff'g S. C, 8 Abb. N. S. 330; 1 Sweeny, 
 454. 
 
 7. Constitutionality of la-w. In order to 
 raise the question whether a law, to the legal 
 enactment of which the presence of a certain 
 number of legislators is requisite, was constitu- 
 tionally passed, the complaint must aver ex- 
 pressly that such number was not present. Ct. 
 App., 1863, Pumpelly v. Village of Oviego, 45 
 How. 219. 
 
 8. Contract or tort. In stating a cause of 
 action for which, at common law, either case or 
 assumpsit would lie, if the plaintiff elects to 
 proceed as on a contract, he should allege tliat 
 the defendant undertook and promised to per- 
 form, or not to perform, the act on which the 
 suit is founded. Sup. Ct"., 1873, Booth v. Far- 
 mers and Mechanics Nat. Bank of Rochester, 65 
 Barb. 457. 
 
 9. Damages. Upon breach of a valid con- 
 tract the injured party is entitled to some dam- 
 ages, though they may be difficult to ascertain, 
 or may be nominal only, and, unless he claims 
 special damages they need not be expressly 
 detailed in the complaint. N. Y. Supr. Ct., 1873, 
 Fitch v. Fitch, 35 N. Y. Supr. (3 J. & Sp.) 302. 
 
 10. In a complaint for a trespass, an averment 
 " to his great damage, viz. : six thousand dol- 
 lars," comprehensively refers to all the particu- 
 lars of the alleged trespass set forth in the same 
 paragraph, and entitles the plaintiff to prove 
 those particulars so far as they are shown to be 
 parts of the trespass complained of. N. Y. Supr. 
 Ct., 1874, Eten v. Luyster, 37 N. Y. Supr. (5 J. & 
 Sp.)486. 
 
 11. Defendant's residence. It is not neces- 
 sary in a complaint to state that the defendant 
 resides within the jurisdiction of the Court, if 
 process is served upon him there. N. Y. C. P.., 
 1871, Johnson v. Ackerson, 3 Daly, 430. 
 
 12. Demand for relief. The demand for re 
 lief does not necessarily characterize the action, 
 
PLEADING. 
 
 545 
 
 or limit the plaintiff in respect to the remedy 
 which he may have ; and though relief be de- 
 manded in damages after a statement of facts 
 entitling the plaintiff to equitable relief only, 
 the complaint is not therefore open to demur- 
 rer. Ct. App., 1872, Hale v. Omaha National 
 Bank, 49 N. Y. (4 Sick.) 626 ; Aff'g S. C, 33 N. 
 Y. Supr. (1 J. & Sp.) 40. 
 
 13. Discrepancy betroveen summons and 
 complaint. The summons and complaint in an 
 action to recover a statutory penalty, should not 
 be set aside merely because the complaint is in 
 form upon contract, under the provisions of 2 R. 
 S. 480, sec. 1 (2 Edm. Stats. 502), and the sum- 
 mons is for relief. Buff. Supr. Ct., 1872, Abhott 
 r. N. Y. Central, etc. R. R. Co., 12 Abb. N. S. 465. 
 
 14. If such action can, under the Code, be 
 deemed one upon contract, the proper mode of 
 taking advantage of the defect is by application 
 for relief after judgment, if the plaintiff obtains 
 a judgment to which he is not entitled. lb. 
 
 15. False representations. In an action 
 against a surgeon for malpractice, it is not ne- 
 cessary to allege in the complaint the falsity of 
 representations made by the defendant to in- 
 duce the plaintiff to discharge him, in order to 
 meet any defense resting on the consent to such 
 discharge ; but if the plaintiff seeks to recover 
 damages resulting from the omission to call in 
 surgical aid because of reliance on the false rep- 
 resentations, it must be alleged in the complaint. 
 Sup. Ct., 1871, Carpenter v. Blake, 60 Barb. 488. 
 
 16. Jurisdictional facts. A complaint in an 
 action in the County Court must, on its face, 
 show that the defendant is a resident of the 
 county in which the action is commenced, other- 
 wise it is demurrable for want of jurisdiction. 
 Sup. et., 1871, Judge v. Hall, 5 Lans. 69. 
 
 17. Negativing defense. In an action for 
 injuries caused by negligence, contributory 
 negligence on the part of the plaintiff is a mat- 
 ter of defense, and it need not be negatived by 
 the plaintiff in his complaint, or proof on the 
 subject be introduced by him in the first in- 
 stance. Sup. Ct., 1871, Haskell v. Village of 
 Penn Yan, 5 Lans. 43. 
 
 18. Right to sue. In a complaint by one who 
 stands in the position of an assignee for the 
 benefit of foreign creditors, under an appoint- 
 ment by a foreign court, to recover back prop- 
 erty fraudulently assigned by the debtor, he 
 need not set out the foreign laws which entitle 
 him to sue, but it is sufficient if the plaintiff 
 substantially avers his ownership of the estate. 
 Sup. Ct., 1872, Barclay v. Quicksilver Mining Co., 
 6 Lans. 25. 
 
 19. Title in plaintiff. A complaint must 
 show that the plaintiff has "title to the subject- 
 matter of the action, or such an interest as en- 
 titles him to sue; otherwise, it fails to state 
 facts sufficient to constitute a cause of action ; 
 and the defect may be taken advantage of by 
 motion on the trial, and need not be raised by 
 demurrer. Sup. Ct., 1874, Mosselman v. Caen, 1 
 Hun, 647. 
 
 20. A complaint which shows that the plain- 
 tiffs claim only as trustees under foreign bank- 
 ruptcy proceedings, does not state facts sufficient 
 to constitute a cause of action, since our courts 
 will not recognize or enforce a right acquired 
 by such proceedings, so far as they affect prop- 
 erty in this State or demands against residents 
 of the State. lb. 
 
 t h. Joinder of causes of action. 
 
 21. Affecting different parties. Section 
 
 35 
 
 167 of the Code, which declares what causes of 
 action may be united, expressly requires that 
 (except in actions for tlie foreclosure of mort- 
 gages) the causes of action so united must affect 
 all the parties to the action ; and that does not 
 permit two persons, each of whom claims the 
 whole of a piece of land by title hostile to that 
 of the other, to unite in an action of ejectment 
 against a third party in possession, and to set 
 forth the title of each plaintiff in a separate 
 count. Ct. App., 1874, Hubbell v. Lerch, 58 N. 
 Y. (13 Sick.) 237 ; Aff'g S. C, 62 Barb. 295. 
 
 22. This rule is applicable to actions of eject- 
 ment as well as to other actions ; and, even if 
 the provisions of the Revised Statutes in re- 
 spect to parties in ejectment (2 R. S. 304, sec. 
 11) were still in force, they would not sustain 
 such a complaint, where no joint title was al- 
 leged, lb. 
 
 23. A cause of action against trustees of a 
 mining corporation for not filing a report, as re- 
 quired by the law under which it was organized, 
 cannot be joined with one for filing a false re- 
 port, if such false report is not 'signed by all of 
 such trustees. Sup. Ct., 1874, Bonnell v. Wheel- 
 er, 1 Hun, 332. 
 
 24. A complaint which demands as relief, that 
 the sales of real estate made by an administra- 
 trix, under order of the surrogate, for the pay- 
 ment of debts, be set aside as irregular and 
 void ; that sales of portions of the real estate on 
 foreclosure of mortgages given by the testator 
 be set aside for irregularity, and certain other 
 mortgages be set aside ; that deeds of por- 
 tions of the lands sold be set aside as fraudu- 
 lent ; that an accounting by the administratrix 
 with the will annexed be ordered ; and that an 
 account of the rents and profits received by the 
 widow as administratrix during her life, as well 
 as of the assets which came to her hands, be 
 ordered ; misjoins causes of action, and brings 
 in parties proper as to one cause of action, but 
 wholly unnecessary as to others. Sup. Ct., 1871, 
 Silsbee Y. Smith, 4:1 How. 418; S. C, 60 Barb. 
 372. 
 
 25. Affecting defendants in several capa- 
 cities. Acomplaintagainst the administrator of 
 plaintiff's agent, which alleges that the deceased 
 had in his hands at his death a large amount of 
 money and other property belonging to the 
 plaintiff, and asks for an accounting in relation 
 thereto, and the payment of the amount due on 
 accounting, and the recovery of the money and 
 property taken by the administrator and re- 
 fused to be given up, &c., does not improperly 
 join causes of action against the administrator 
 individually and in his representative capacity. 
 N. Y. C. P., 1873, Day v. Stone, 15 Abb. N. S. 
 137. 
 
 26. A complaint by a bank against executors, 
 which alleges that the bank by mistake gave an 
 over credit on its books to the testator in his life- 
 time, and paid a part of the amount to him, and 
 the balance to his executors after his decease, 
 and asks judgment against them for the full 
 amount, does not improperly join several causes 
 of action, si;ice the law will raise a promise on 
 their part to repay the whole, and the action 
 can be sustained upon that promise. Sup. Ct., 
 1872, Tradesmen's Nat. Bank of N. Y. v. Mc 
 Feely, 61 Barb. 522. 
 
 27. A complaint against executors as such for 
 an indebtedness of the testator for services 
 rendered him on his retainer In a suit brought 
 against him, and for like services rendered in 
 the same action after testator's decease, under a 
 special agreement with the executors, improp- 
 
546 
 
 PLEADING. 
 
 erlv joins two causes of action. Sup. Ct., 1871, 
 Amtin v. Monroe, 4 Lans. 67 ; Afi'd, S. C, 47 N. 
 Y. (2 Sick.) 360. 
 
 28. A complaint in an action against one who 
 was both a stockholder and a trustee of an in- 
 solvent corporation, may properly charge his 
 liability in the former capacity by reason of the 
 non-filing of the certificate as to payment in of 
 the capital of the company, and also his liability 
 in the latter capacity by reason of the failure to 
 make and publish the report required by law. 
 Sup. Ct., 1875, Wiles v. Suydam, 3 Hun, 604. 
 
 29. A complaint ih an action to charge the 
 defendants individually for the debt of a corpor- 
 ation therein set forth, which alleges that they 
 were trustees and failed to make the return 
 required by law, and also that they were stock- 
 holders at the time the debt sued for was con- 
 tracted, and therefore liable for such debt, does 
 not unite two inconsistent causes of action, and 
 is not objectionable under the Code, Sup. Ct., 
 Sp. T., 1871, Sterne v. Herman, 11 Abb. N. S. 376. 
 
 30. A cause of action to charge stockholders 
 of a corporation formed under the general act of 
 1848, individually for a debt of the corporation, 
 on the ground that the subscriptions have not 
 been paid in, and a certificate filed as prescribed 
 by sec. 10 of that act, is founded upon an implied 
 contract ; while a cause of action to charge the 
 same persons as trustees with the same debt, 
 for not having published annual reports as re- 
 quired by sec. 12, is upon a liability created by 
 operation of law ; and the two cannot be united 
 in the same complaint. Sup. Ct., Sp. T., 1871, 
 Mdppier v. Mortimer, 11 Abb. N. S. 455. 
 
 31. Contract and tort. A complaint by an 
 assignee of a judgment against his assignor, for 
 discharging the judgment after he had assigned 
 it, which does not allege a promise on his part 
 not to discharge it, is in tort, and if it also con- 
 tains a count for money had and received, there 
 is a misjoinder of causes of action. Sup. Ct., 
 1873, Booth V. Farmers and Mechanics Nat. Bank 
 of Rochester, 65 Barb. 457. 
 
 32. Covenant and tort. A complaint which, 
 for a first cause of action, alleges that the de- 
 fendant leased to the plaintiff certain premises, 
 with covenants for quiet enjoyment, but, after 
 the commencement of the term, refused to de- 
 liver possession of part, deprived him of certain 
 demised privileges, refused to perform certain cov- 
 enants, and shut him out from and deprived him 
 of the use of the premises ; and for a fifth cause 
 of action alleges that when he had made frequent 
 application to defendant in a friendly way, to 
 secure admission to his said apartments, defend- 
 ant had persisted in refusing the same; and 
 that during the said forced absence of plaintiff, 
 the defendant by false keys obtained an entrance 
 to said apartments, and broke open a lock secur- 
 ing a trunk in said apartments, belonging to and 
 containing the property of said plaintiff, and did 
 contrary to law, wilfully, maliciously and felo- 
 niously take and remove said goods from said 
 apartments, &c., improperly unites a cause of 
 action upon a covenant with one for tort. Bar- 
 bour, J., dissents. N. Y. Supr. Ct., 1873, Keep 
 V. Kauffmnn, 36 N. Y. Supr.^ (4 J. & Sp.) 141 ■ 
 Aff'd, S. C, 56 N. Y. (11 Sick.) 332. 
 
 33. The use of the terms " said apartments," 
 in the statement of the last cause of action, 
 does not so refer to the first cause of action as 
 to show that the pleader intended to treat the 
 tortious acts there complained of as a breach of 
 covenant. lb. 
 
 34. Joint and several liability. A com- 
 plaint which alleges the performance of services 
 
 by the plaintiff, for the testator of the defend- 
 ant and another, for which they jointly and 
 severally promised to pay him, but contains no 
 allegation that they were partners, is not demur- 
 rable for defect of parties, each of the contractors 
 being liable without joining the other. Sup. 
 Ct., 1875, Speyers v. Fisk, 3 Hun, 706. 
 
 35. Legal and equitable causes. It is 
 probable that two such apparently incongruous 
 causes of action as one at law to recover the 
 possession of real property, and one for equitable 
 relief against conveyances under which the 
 defendants claim, may be united in one action, 
 and the issues formed be separately tried. N. 
 Y. Supr. Ct., 1874, McTeague v. Coulter, 38 N. 
 Y. Supr. (6 J. & Sp.) 208. 
 
 36. Iiibel and malicious prosecution. A 
 complaint which sets forth a series of acts on 
 the part of the defendant, all aimed at, and 
 seeming and charged to be for effecting one 
 object, those acts being the publication of a 
 libel against the plaintiff, and maliciously caus- 
 ing his arrest, is not demurrable for misjoinder. 
 Sup. Ct., 1875, Watts v. Hilton, 3 Hun, 606. 
 
 37. Several kinds of relief. A complaint, 
 which alleges that H, in 1862, executed a i^ei of 
 certain premises to L, his wife, upon an agree- 
 ment that it should not taike effect or be recorded 
 until his death ; that in 1870, L died, and H 
 afterward married the plaintiff ; that in 1872 H 
 made his will devising liis real estate to plain- 
 tiff and certain of the defendants, and afterward 
 died ; and that the defendants, or some of them, 
 surreptitiously procured the deed, after L's 
 death, altered the date of the acknowledgment 
 and had it recorded, so as to make it appear 
 that they as heirs of L were the owners in fee 
 of the whole of the lands therein described ; and 
 asks that the plaintiff be declared the owner in 
 fee of an undivided fourth part of said premises, 
 and entitled to dower in the whole thereof; 
 that the deed be declared void, and be cancelled ; 
 that the premises be partitioned among the 
 owners, and her dower interest be ascertained 
 and admeasured to her; does not improperly 
 join several causes of action, but merely pre- 
 sents a case where the plaintiff may be entitled 
 to three kinds of relief on the same state of facts. 
 Sup. Ct., 1874, Hammond v. Cockle, 2 Hun, 495. 
 
 38. Several grounds of liability. A com- 
 plaint which states a cause of action on an in- 
 surance policy, and further alleges an agreement 
 by the defendant to give a certain sum in full 
 settlement of the loss, and further a demand by 
 plaintiff for an arbitration as to the loss, as 
 provided by the policy, the defendant's refusal, 
 and the determination of arbitrators thereupon 
 selected by the plS,intiff, does not improperly 
 unite several causes of action. Sup. Ct., 1876, 
 Walters v. Continental Ins. Co., 5 Hun, 343. 
 
 39. A cestui que trust cannot in an equitable 
 action against the surviving trustee, and the 
 representatives of his deceased co-trustee, unite 
 a cause of action, for a breach of trust, occur- 
 ring in the lifetime of the deceased, with one 
 for Interest on the trust funds ; such interest 
 being recoverable in an action at law against 
 the surviving trustee. Sup. Ct., 1871, Sartore T. 
 Scott, 6 Lans. 271. 
 
 40. Nor can one ceitui que trust, entitled to in- 
 terest on the trust fund during life, maintain an 
 action to compel the trustees to give security 
 for moneys lost by their breach of trust and for 
 an accounting, or to recover the moneys lost, 
 without joining the remainder-men. lb. 
 
 41. A cause of action agains* the trustees of 
 a mining corporation for not filing a report, as 
 
PLEADING. 
 
 547 
 
 required by sec. 12, eh. 40, Laws 1848, may be 
 joined with one for filing a false report, in viola- 
 tion of sec. 15 of that act, where both affect the 
 same parties. Sup. Ct., 1874, Bonnell v. Wheeler, 
 1 Hun, 382. 
 
 42. A cause of action for a conspiracy on the 
 part of such trustees to form the corporation, 
 and fraud and misrepresentation on their part, 
 inducing the plaintiffs to become creditors of 
 such corporation, may also be joined with the 
 causes of action relating to such reports. lb. 
 
 43. A cause of action against trustees under a 
 will to recover assets, is separate aii4 distinct 
 from one for an accounting, or to determine 
 the validity of legacies, and does not arise out of 
 the same transaction within the meaning of the 
 Code, and such causes cannot therefore be joined 
 in the same action. Sup. Ct., 1872, Petrie v. 
 Petrie, 7 Lans. 90. 
 
 . 44. Torts. Causes of action for deceit in the 
 sale of a canal boat and horses by defendant to 
 plaintiff, and for wrongfully taking from such 
 boat and converting certain personal property, 
 are both for injuries to rights of property, and 
 under subd. 3, sec. 167 of the Code, they may 
 properly be united in the same complaint. Sup. 
 Ct., 1871, Cleveland v. Barrows, 59 Barb. 364. 
 
 45. TTsurpatioii of office. The question of 
 intrusion, usurpation, or unlawful holding of 
 a corporate office is still, as before the Code, 
 a legal cause of action, and it cannot properly be 
 joined with an equitable cause of action to 
 restrain and dismiss actions between defendants, 
 growing out of the same matter in controversy, 
 and remove receivers appointed therein. Sup. 
 Ct., 1871, People v. Albany §■ Susq. R. R. Co., 5 
 Lans. 26. 
 
 46. Such misjoinder must be taken advantage 
 of by demurrer, or it is waived. lb. 
 
 c. In partiadar actions. 
 
 47. For accounting. A complaint asking 
 for a dissolution of partnership and an account- 
 ing, — Held suflScient, though the facts stated 
 showed a dissolution prior to the commencement 
 of the action, that being the appropriate form of 
 action for an adjustment of the partnership 
 concerns. Com. App., 1872, Babcock v. Hermance, 
 48 N. Y. (3 Sick.) 683. 
 
 48. On administration bond. A com- 
 plaint in an action on an administration bond, 
 founded on the administrator's disobedience of 
 the surrogate's decree, need not allege the 
 grounds of such decree. N. Y. C. P., 1874, Field 
 V. Van Cott, 15 Abb N. S. 349. 
 
 49. Against bailees. There is a substan- 
 tial difference between an action for the conver- 
 sion of property by a carrier or other bailee, 
 and one for a mere negligent loss thereof, and 
 that distinction must still be observed in the 
 statement of facts in a complaint under the 
 Code. N. Y. Supr. Ct., 1871, Samuels v. Mc- 
 Donald, 42 How. 360 ; S. C, 11 Abb. N. S. 344 : 
 33 N. Y. Supr. (IJ. & Sp.) 211. 
 
 60. Against carriers. A complaint in an 
 action for injuries sustained in getting out from 
 an omnibus, by reason of the negligence of the 
 driver, which alleges that the defendants were 
 common carriers of passengers, and that they 
 undertook to carry the plaintiff for hire, is suffi- 
 cient, without alleging that they received com- 
 pensation from the other passengers. Ct. App., 
 1874, Roberts v. Johnson, 58 N. Y. (13 Sick.) 613; 
 Aff'g S. C, 37 N. Y. Supr. (5 J. & Sp.) 157. 
 
 51. For causing intoxication. A com- 
 plaint by a widow, which alleges that her 
 
 husband's death was caused by intoxication ;— 
 that the defendant by the sale and delivery to 
 him of intoxicating liquors, caused In whole or 
 in part, such intoxication, and that by means 
 of his death plaintiff has sustained damages, in 
 being deprived of the companionship of her hus- 
 band, and of the customary support and main- 
 tenance of herself and children, does not state a 
 cause of action under ch. 646, Laws of 1873, be- 
 cause it does not state a case in which an action 
 would also lie against the intoxicated person. 
 Sup. Ct., 1875, Eayes v. Phelan, 5 Hun, 733. 
 
 62. On check. A comi^aint on a bank 
 check against the drawer must aver presentment 
 for payment, non-payment, and notice thereof to 
 such drawer. Sup. Ct., 1874, Judd v. Smith, B 
 Hun, 190. 
 
 53. For claim and delivery. A complaint 
 in an action to recover possession of personal 
 property, which alleges "that the defendant has 
 become possessed of and wrongfully detains 
 from the plaintiffs the following goods and 
 chattels of the plaintiffs," sufficiently alleges the 
 plaintiff's ownership. N. Y. Supr. Ct., 1873, 
 Simmons v. Lyons, 35 N. Y. Supr. (3 J. & Sp.) 
 554 ; Aff'd, S. C, 55 N. Y. (10 Sick.) 671. S. P. 
 Van Der Minden v. Elsas, 36 N. Y. Supr. (4 J. & 
 Sp.) 66. 
 
 54. Where the complaint, either originally or 
 by amendment, alleges a wrongful taking as 
 well as a wrongful detention, no averment of de- 
 mand and refusal before suit is necessary. It 
 seems that an allegation that the goods are 
 " wrongfully withheld " is sufficient. lb. 
 
 55. On contract. Where a contract is em- 
 bodied in a written instrument, in the form of a 
 bond, but not under seal, conditioned in a certain 
 penalty for its performance, the complaint in an 
 action for breach thereof need allege only the 
 making of the agreement, without specifying its 
 form, or referring to the fact that it is in writing. 
 Com. App., 1874, Tuttle v. Hanneqan, 54 N. Y. (9 
 Sick. ) 686 ; Aff'g S. C, 4 Daly, ^2. 
 
 56. For contribution. A complaint, which 
 alleges that a partnership had existed between 
 the plaintiffs and defendant, by which the 
 plaintiffs were to furnish all the capital, the de- 
 fendant to manage the business, and the parties 
 to share the losses and profits, that such partner- 
 ship had expired, and that a loss had been sus- 
 tained to a certain amount, and asks a money 
 judgment for one-half the amount, states a good 
 cause of action, and a demurrer will not lie 
 to the demand for judgment. Sup. Ct., 1874, 
 Johnson v. Kelly, 2 Hun, 139. 
 
 57. The demand for a money judgment in 
 such a case will not prevent an accounting being 
 ordered, if rendered necessary by the issue made 
 by the answer. lb. 
 
 58. For conversion. A complaint in an ac- 
 tion against a broker for an unauthorized sale of 
 bonds held by him on marginal security, with- 
 out notice, which alleges facts sufficient to sus- 
 tain a special action on the case, need not allege 
 a demand and tender, even though it uses the 
 term conversion. Brooklyn City Ct., 1871, Read 
 V. Lambert, 10 Abb. N. S. 428. 
 
 59. On covenant to pay taxes. A com- 
 plaint on a covenant to " pay all taxes, &c„ 
 that may be imposed or assessed, or become a 
 lien on the premises at any time during the 
 term, when due and payable," must allege that 
 the taxes for which the plaintiff seeks to recover 
 became due and payable before suit brought. It 
 is not sufficient to allege that they have been im- 
 posed. N. Y. Supr. Ct., 1875, Whitman v. Nicol, 
 38 N. Y. Supr. (6 J. & Sp.) 628. 
 
548 
 
 PLEADING. 
 
 60. In creditor's suit. A complaint by a 
 judgment creditor in an action to set aside, as 
 fraudulent, a conveyance by the judgment debt- 
 or to liis wife, which does not aver the issuing 
 of execution upon plaintiii's judgment, is defect- 
 ive. Ct. App., 1873, Allyn v. Thurston, 63 N. Y. 
 (8 Sick.) 622. 
 
 61. A complaint in an action by one creditor, 
 in behalf of himself and other creditors, must 
 allege that there are other creditors, and must 
 either allege that the plaintiffs are judgment 
 creditors, or state facts upon which a judgment 
 can be given in their favor. Sup. Ct., 1875, El- 
 well V. Johnson, 3 Hun, 558. 
 
 62. For determination of claims to real 
 property. A complaint in a proceeding under 
 the statutes for the determination of claims to 
 real property, must allege affirmatively that the 
 defendants unjustly claim title to the premises. 
 Sup. Ct., 1872, Baileyv. Southwick, 6Lans. 356 ; 
 Aff'd, sub nom, Bailey v. Briggs, 56 N. T. (11 
 Sick.) 407. 
 
 63. It must also pray judgment, or otherwise 
 explicitly notify or apprize the defendants, that 
 unless they appear and assert their claims they 
 will be forever barred. lb. 
 
 64. A complaint in an action, under sec. 449, 
 of the Code, to compel a determination of claims 
 to real property, must show not only that the 
 plaintiff has been in actual possession for three 
 years and that the defendant unjustly claims 
 title to the premises, but also that both parties 
 claim an estate in fee, or for life, or for a term 
 of vears not less than 10. Ct. App., 1872, Austin 
 V. 'Goodrich, 49 N. Y. (4 Sick.) 266. 
 
 65. Against executors. A complaint in an 
 action against executors for an indebtedness 
 which accrued during the life of the testator, 
 may allege that they are sued as executors, or 
 may set out their representative character, to 
 show that the action is upon such a demand. 
 Sup. Ct., 1875, Yates v. Hoffman, 5 Hun, 113. 
 
 66. For fraud. A complaint in an action to 
 recover damages for fraud by which the de- 
 fendant induced the plaintiff to marry him, which 
 contains allegations of a series of fraudulent acts, 
 all necessary either to the statement of the cause 
 of action or in aggravation of damages, states 
 but one cause of action. Sup. Ct., 1874, Price v. 
 Price, 2 Hun, 611. 
 
 67. In a complaint for fraud and conspiracy, 
 it is sufficient to state the fact of the combina- 
 tion, its object and its accomplishment to the 
 injury of the plaintiff, without setting out in 
 detail the facts and circumstances relied upon 
 to establish the complicity of the defendants, 
 N. Y. C. P., 1869, Ynguanzo v. Salomon, 3 Daly, 
 163. 
 
 68. A complaint which alleges fraud and deceit 
 in the sale, by the defendant, to W, M and D, 
 of an interest which he claimed to have in a 
 lease of oil lands, and which he agreed to convey 
 and did convey to D, for the benefit of the pur- 
 chasers ; the falsity of the representations ; the 
 procurement by means thereof of the price to 
 be paid ; the damages sustained by the plain- 
 tiffs ; the assignment to him of the rights, legal 
 and equitable, of W and M ; and the release by 
 D, to the defendant of all his claims growing out 
 of the transaction ; contains a good, cause of 
 action for the deceit, and shows a right in the 
 plaintiff to prosecute the same. Sup. Ct., 1873, 
 Woodbury v. Deloss, 65 Barb. 501. 
 
 69. Subsequent counts in the same complaint, 
 by which it was alleged that the defendant was 
 indebted to the plaintiff for money had and re- 
 ceived by defendant of W and M, " on, &c., as 
 
 above stated,"— HcW, to incorporate into such 
 counts the allegations of fraud in the first count, 
 and render them counts for money had and re- 
 ceived by means of false and fraudulent repre- 
 sentations ; and as the Uability was alleged to 
 have grown out of the same transaction, the 
 counts were properly united. lb. 
 
 70. Against indorser. In an action by the 
 payees of a note, made payable to their order, 
 against an indorser alleged to have indorsed it 
 at the time irwas made, it is necessary for the 
 plaintiff to allege the special circumstances 
 which repder the defendant liable as first indor- 
 ser, to rebut the presumption arising on the in- 
 strument itself that he is second indorser. Sup. 
 Ct., 1874,. Woodruff y. Leonard, 1 Hun, 632. 
 
 71. A complaint against an indorser of a prom- 
 issory note which alleges that one T made his 
 promissory note payable to the order of plain- 
 tiff, for value received, "and delivered the said 
 note to the defendant herein, who indorsed, and 
 for value received delivered the said note to the 
 plaintiff, who, on the faith of such indorsement, 
 accepted said note," in effect alleges that de- 
 fendant indorsed as surety for the maker, t. e., 
 that he delivered the note, after indorsing it, 
 that the plaintiff might take it on the faith ■ of 
 his indorsement, and it is therefore sufficient. 
 N. Y. Supr. Ct., 1874, Smith v. Smith, 37 N. Y. 
 Supr. (5 J. & Sp.) 203. 
 
 72. For injunction. A complaint in an ac- 
 tion to perpetually enjoin and restrain commis- 
 sioners from issuing the bonds of a town in aid 
 of the construction of a railroad, must show that 
 the alleged commissioners are officers having 
 authority by legal appointment or color of ap- 
 pointment to act as commissioners for that pur- 
 pose. A statement that they either are or claim 
 to be commissioners, with an averment of igno- 
 rance as to the truth of their claim, is not suffi- 
 cient. Sup. Ct, 1872, Pierce v. Wright, 45 How. 
 1 ; S. C, 6 Lans. 306. 
 
 73. Allegations in such a complaint that some 
 of the persons signing the consents were not 
 taxpayers of the town, and did not own the 
 property assessed to them, and that consents 
 had not been given by the necessary one-half of 
 taxpayers and property owners, raise questions 
 which cannot be tried in such action, and there- 
 fore do not show sufficient ground for an in- 
 junction, lb. 
 
 74. A complaint which alleges that the plain- 
 tiffs are, as residents and taxpayers of the town 
 of M, liable to assessment and taxation therein, 
 and were residents and taxpayers and owners 
 of real and personal property liable to assess- 
 ment and taxation therein at the time of the oc- 
 currences mentioned in the complaint, brings 
 the plaintiffs substantially within the descrip- 
 tion of ch. 161, Laws of 1872, and sufficiently 
 shows their right to maintain an action to re- 
 strain the unauthorized issue of town bonds. 
 Ct. App., 1874, Ayers v. Lawrence, 59 N. Y- (14 
 Sick.) 192. 
 
 75. For libel. A complaint charging the 
 publication of an article, wherein a common 
 prostitute was alleged to be under plaintiff's 
 patronage or protection, and alleging that the 
 publication was false and malicious and made 
 with intent to blacken the plaintiff's reputation, 
 is sufficient, without averments that it was in- 
 tended to charge plaintiff with a patronage for 
 criminal purposes. It is only where the words 
 do not, themselves, fairly charge the offence, 
 that extrinsic averments are necessary. Com. 
 App., 1872, More v. Bennett, 48 N. Y. (3 Sick.) 
 472 ; Rev'g S. C, 48 Barb. 229 ; 33 HoW: 177. 
 
PLEADING. 
 
 549 
 
 76. To enforce lien on ship. An allegar 
 tion in the complaint, that the articles mention- 
 ed as sold were purchased and furnished to the 
 vendee at the city of New York, is sufficient to 
 show that the contract was made and the in- 
 debtedness arose in this state. Sup. Ct., 1874, 
 Moores V. Lunt, 1 Hun, 650 : Aft'd, 60 N. Y. (15 
 Sick.) 649. 
 
 77. Allegations that the materials were fur- 
 nished "for and toward the building, fitting, fur- 
 nishing and equipping " the vessel, sufficiently 
 show that they entered into the construction of 
 the vessel, and that they were delivered. lb. 
 
 78. Against married ■woman. A com- 
 plaint-against a married woman need only con- 
 tain such averments as are requisite in actions at 
 law against other parties, and the defense of 
 coverture if set up, may be met or avoided by 
 evidence, without the facts proposed to be prov- 
 ed for that purpose being alleged in the com- 
 plaint. Sup. Ct., 1874, Keku v. Long, 1 Hun, 
 714. S. P. Freaking v. Holland, 53 N. Y. (8 Sick.) 
 422 ; Bev'g S. C, 33 N. Y. Supr. (1 J. & Sp.) 499. 
 
 79. It is not necessary, in an action against a 
 married woman, to allege that the debt was hers 
 or contracted for the benefit of her^separate 
 estate, nor that judgment be demanded to 
 charge her separate estate for the debt instead 
 of a general money judgment. Com. App., 1872, 
 ffier V. Staples, 61 N. Y. (6 Sick.) 136. 
 
 80. If coverture is alleged as a defense, evi- 
 dence is admissible to show that the defendant 
 was conducting a business in lier own name and 
 that the debt was contracted upon her credit, 
 although those facts are not set forth in the 
 complaint. lb. 
 
 81. On mechanic's lien. In a complaint 
 upon a cause of action given by statute, such as 
 one to enforce a mechanic's lien, it is not suf- 
 ficient simply to refer to the statute, unless that 
 so provides ; but all the facts, which, under the 
 statute, constitute the cause of action, must be 
 alleged. N. Y. Supr. Ct., 1873, Kechler v. 
 Stumme, 36 N. Y. Supr. (4 J. & Sp.) 337. 
 
 82. Thus, a complaint in an action to foreclose 
 a mechanic's lien, which alleges that " a notice 
 in conformity with such statute to create and 
 whereby there was created a lien " in plaintiff's 
 favor, was " filed in the office of the clerk," &c., 
 and " thereafter, upon due notice to the defend- 
 ant to appear herein," &c., due order was en- 
 tered, &c., is insufficient because it neither sets 
 out the notice nor gives its substance. lb. 
 
 83. Against members of voluntary as- 
 sociation. A complaint in an action for rent 
 against the individual members of a club com- 
 posed of more than seven members, which al- 
 leges that the defendants were members of and 
 partners in said club at the time of the letting ; 
 that the lease was made to tliree of the mem- 
 bers in pursuance of the authority and di- 
 rection of said club, and for its use ; that the 
 members of said club subsequently ratified said 
 lease, and entered into possession of and occupi- 
 ed the premises for a certain time, and had paid 
 various sums on account of the rent thereof, 
 leaving due a balance, for which judgment is 
 asked, does not show the defendants to be such 
 a company or association as is contemplated by 
 eh. 455, Laws of 1851, extending to them the 
 provisions of ch. 258, Laws of 1849, in relation 
 to suits against them ; but it does contain suf- 
 ficient facts to hold the defendants liable as 
 assignees of the lease. N. Y. C. P., 1872, Waller 
 V. Thomas, 42 How. 337 ; S. C, 4 Daly, 551'. 
 
 84. For money paid. A complaint in an 
 action to recover back money paid under a mis- 
 
 take of facts is not objectionable for unneces- 
 sarily or improperly charging fraud, if enough 
 facts are proved to warrant a recovery without 
 proof of the fraud. Brooklyn City Ct., 1872, 
 Barker v. Clark, 12 Abb. N. S. 106. 
 
 85. A complaint by sureties, which alleges an 
 intent on the part of the defendant to cheat, 
 deceive and defraud the plaintiffs by inducing 
 them to sign and deliver an undertaking, on an 
 appeal from a judgment of the Supreme Court 
 of the State of New York, stating the parties, 
 the amount and other necessary particulars 
 which show a judgment, and refers to the under- 
 taking as annexed, which undertaking recites a 
 judgment recovered at the General Terra of the 
 Supreme Court, and that the appellant intends 
 to appeal to the Court of Appeals, sufficiently 
 shows a judgment in the Supreme Court of the 
 State of New York, in an action originating in 
 or appealed to that court. Sup. Ct., 1874, Bates 
 V. Merrick, 2 Hun, 568. 
 
 86. An allegation in such complaint that the 
 undertaking was duly filed and accepted, and 
 was used as a sufficient undertaking on said ap- 
 peal, and stayed all proceedings upon the judg- 
 ment appealed from, and that said judgment 
 was duly affirmed in all things, sufficiently 
 shows that everything was done to perfect and 
 make effectual such appeal. lb. 
 
 87. An allegation that said judgment, so ap- 
 pealed from, was, by order of the Court of Ap- 
 peals of the State of New York, duly affirmed, 
 and that thereupon, upon a remittitur therefrom, 
 a judgment of affirmance was duly entered in 
 the Onondaga County Clerk's office, does not 
 show that the judgment so entered was not the 
 judgment of the Supreme Court, or was not en- 
 tered in the proper county, and is not demurra- 
 ble, lb. 
 
 88. For negligence. Where, in an action 
 for negligence, damages are sought to be recov- 
 ered, which, though the natural consequence of 
 the act complained of, are not its necessary re- 
 sult, they must be alleged in the complaint or 
 they cannot be proved. N. Y. C. P., 1872, Bald- 
 win V. New York &• Harlem Navigation Go., 4 Daly, 
 314. 
 
 89. On nevr promise. A complaint in an 
 action to recover a debt barred by the debtor's 
 discharge in bankruptcy, upon the ground of a 
 new promise to pay it, made after the discharge, 
 need not set out the new promise as the basis of 
 the action, but the original debt may still be 
 treated as the cause of action for the purpose of 
 the remedy, and the new promise be treated as 
 a waiver of the bar to its recovery created by 
 the discharge. Ct. App., 1873, Dusenbury v. Hoyt, 
 53 N. Y. (8 Sick.) 521 ; Bev'g S. C, 14 Abb. N. 
 S. 132 ; 36 N. Y. Supr. (4 J. & Sp.) 94. ' 
 
 90. On note. A complaint in an action by 
 the payee of a note against the indorsers, which 
 states an application by the makers for a loan, 
 and that " as a condition of said loan and as se- 
 curity for the payment of the same, said defend- 
 ants (meaning the makers) made and executed 
 their certain promissory note, and said defend- 
 ants "(naming the indorsers) " then and there 
 indorsed the same to the plaintiff," and then 
 recites the note at length, which was in terms 
 " for value received," — Held, to aver sufficiently 
 the execution and delivery of the note and its 
 indorsement for a valuable consideration. Ct 
 App., 1872, Meyer v. Hibsher, 47 N. Y. (2 Sick.) 
 265. 
 
 91. The complaint in an action by two execu- 
 tors upon a promissory note payable to one of 
 them, which alleges that such note was given for 
 
550 
 
 PLEADING. 
 
 the benefit of the estate, in settlement of a debt 
 due to it from the maker, and that plaintiffs are 
 the lawful owners and holders, is sufficient with- 
 out alleging that the note was indorsed to them. 
 Sup. Ct., 1875, Leland r. Manning, 4 Hun, 7. 
 
 92. In a suit by foreign executors to whom 
 letters of administration have been granted 
 here, it is not necessary to allege that the will 
 has been proved in the foreign State, or that 
 they have filed an inventory, but it is sufficient 
 to allege that letters have been granted to them 
 and they have qualified. lb. 
 
 93. For obstructing harbor. Although an 
 ordinance passed by a city council, under a stat^ 
 utory authority to preserve its harbors and water 
 channels, and prevent the depositing or causing 
 to be floated, drifted and deposited therein of 
 any substance liable to obstruct the same, merely 
 prohibits the depositing, &c., of certain sub- 
 stances in a certain river, or any canal, race- 
 waj' or pond leading into it, under a certain 
 penalty, without stating that such river is a har- 
 bor or water channel, yet, a complaint for a vio- 
 lation of such ordinance, which alleges that 
 such river is a harbor or water channel of the 
 city, states a cause of action. Sup. Ct., 1872, 
 City of Ogdensburg v. Lyon, 7 Lans. 215. 
 
 94 For penalty. The provision of 2 R. S. 
 480, sec. 1 (2 Edm. Stats. 502), authorizing a 
 short form of decilaration in an action for a 
 statutory penalty, is inconsistent with the pro- 
 vision of sec. 142 of the Code, and is not saved 
 by sec. 471, and is consequently repealed there- 
 by. Buff. Supr. Ct., 1872, Abbott v. N. Y. Central, 
 etc. R. R. Co., 12 Abb. N. S. 465. 
 
 95. A complaint in an action to recover the 
 penalty of twice the amount paid by plaintiff to 
 defendant for lottery tickets, upon purchases 
 made at various times, in pursuance of 1 R. S. 
 667, sec. 32 (1 Edm. Stats. 619), must set forth 
 the dates of the several purchases, an'd amounts 
 paid thereon ; and this is so whether the com- 
 plaint is framed under the provisions of the 
 Revised Statutes relative to the collection of 
 penalties, or, under the Code. N. Y. C. T., Sp. 
 T., 1872, Roediger v. Simmons, 14 Abb. N. S. 256. 
 
 96. An allegation in such complaint, that the 
 lotteries in which the tickets were bought are 
 now, and for a long time previous to the sale of 
 the tickets, had been illegal, is not irrelevant ; 
 since it may be important to show that previous 
 and subsequent thereto the defendant had been 
 engaged in an unlawful business of which such 
 sales to plaintiff constituted a part, in order to 
 show the illegality of the lotteries at tlie time 
 of the sales. lb. 
 
 97. In action to redeem. In a bill to redeem 
 from mortgage or other liens, an offer to pay 
 whatever may be found due, or a tender of- an 
 amount which the plaintiff concedes to be due, 
 is an Indispensable averment. Sup. Ct., 1871^ 
 Silsbee v. Smith, jil How. 418 ; S. C, 60 Barb. 372! 
 
 98. In an action to redeem from a mortgage, 
 the plaintiff cannot avail himself of the pre- 
 sumption of payment, arising from the lapse of 
 more than 20 years since the money became due 
 thereon, unless he has alleged payment in his 
 complaint. Ct. App., 1873, Miner v. Beekman 14 
 Abb. N. S. 1 ; S. C, 50 N. Y. (5 Sick.) 337. 
 
 99. To remove cloud. A complaint in an 
 action to set aside a mortgage as being a cloud 
 on title, which avers that tliere is a certain sum 
 due on the mortgage and that plaintiff has ten- 
 dered that amount, but also states facts from 
 which, by computation, it appears tliat a larger 
 sum than the amount tendered is due, does not 
 show a cause of action, the allegation of the sum 
 
 due being one of a legal conclusion merely, not 
 warranted by the premises. N. Y. C. P., Sp. 
 T., 1872, Allen v. Malcolm, 12 Abb. N. S. 335. 
 
 100. For rights as corporator. In an action 
 by one who seeks to establish his claim to be a 
 corporator of a religious corporation, or to preach 
 in its church, or to have a receiver appointed to 
 take charge of its property, if he alleges in his 
 complaint that he is a corporator, or successor 
 to a corporator, it is very bad pleading if he does 
 not also allege how he became such corporator 
 or successor. N. Y. Supr. Ct., Sp. T., 1871, 
 Groesbeeck v. Dunscomb, 41 How. 302. 
 - 101. Against school trustees. A complaint 
 against certain persons by name, " trustees of 
 school district No. 4," &c., which alleges per- 
 formance by plaintiff of an agreement with 
 " said trustees " to build a school-house, and 
 their neglect to pay, but does not contain any 
 averment that they were trustees, or claim to 
 recover against them as such, does not show a 
 cause of action against them in their corporate 
 capacity. Sup. Ct., 1871, Shuler v. Meyers, 5 Lans. 
 170. 
 
 102. Such a complaint is also insufficient with- 
 out an allegation that the trustees were author- 
 ized in proper form to make the contract. lb. 
 
 103. For slander. A complaint for slander, 
 where the words charged are not actionable 
 per se, must allege special damage or it will be 
 defective. An allegation that the plaintiff was 
 injured in her good name, and her relatives and 
 friends were causei to slight and shun her, is 
 insufficient. Com. App., 1872, Ba'ssell v. Elmore, 
 48 N. Y. (3 Sick.) 561. 
 
 104. For specific performance. A com- 
 plaint in an action to enforce a mechanic's lien, 
 which alleges that the defendant S is the owner 
 of the premises, that the defendant R has built 
 houses thereon with the permission of S, and 
 that the defendant C has or claims some interest 
 in the premises as owner ; and that at the time 
 of filing the notice of lien he was under contract 
 to convey the same to S, and asks that C be re- 
 strained from conveying the premises until the 
 further order of the court, and that the pur- 
 chaser at the sale under the judgment be enti- 
 tled to a specific performance of the contract be- 
 tween C and S, does not state a cause of action 
 against C because it does not show performance 
 or readiness to perform, or other facts entitling 
 the grantee to a deed under the contract. Sup. 
 Ct., 1874, Jenks v. Parsons, 2 Hun, 667. 
 
 105. To set aside sale, in an action in 
 equity to set aside a foreclosure sale, on the 
 ground of fraud in the manner of making it, the 
 complaint need not aver that the plaintiff tender- 
 ed back the money realized on the sale before 
 suit, the court having full power to protect the 
 rights of all by its decree. N. Y. Supr. Ct., Sp. 
 T., 1873, Dusenbury v. Lehmnier, 46 How. 417. 
 
 106. For trespass. A complaint against a 
 municipal corporation, which alleges that the 
 defendant constructed a drain to and discharged 
 its contents upon the plaintiff's lot, flooding the 
 same and filling the cellar of his house thereon 
 with sewage, and undermining and injuring 
 its walls, states a good cause of action ; such in- 
 trusion upon the plaintiff's premises and infrac- 
 tion of his rights, in the absence of excuse or 
 justification, being unlawful, although done by a 
 municipal corporation. Sup. Ct., 1875, Bradt v. 
 City of Albany, 5 Hun, 591. 
 
 107. To enforce trust, etc. A complaint 
 agamst a railroad company and certain individ- 
 uals, which alleges that the company issued 
 certain bonds, with coupons attached, some of 
 
PLEADING. 
 
 551 
 
 which are owned by plaintiff, which have long 
 since become due and payable, shows an existing 
 *bligation on the part of the company to pay 
 money and a right of action for its recovery ; 
 and further allegations that P, one of the in- 
 dividual defendants, entered into a written 
 agreement for the purchase of the stock of the 
 company, and thereby agreed to pay the then 
 existing debts of the company, in which plain- 
 tiff's claim was included, and that P with the 
 other defendants fraudulently conspired to and 
 did misappropriate funds which were specific- 
 ally charged with the payment thereof, raises 
 such a presumption of liability on his part as to 
 justify the court in putting him to his defense, 
 and establishes the plaintiff's claim to equitable 
 relief by compelling the proper application of 
 the trust funds. N. T. C. P., 1873, Bangs v. 
 Blue Ridge R. R. Co., 46 How. 169. 
 
 108. On undertaking. A complaint on an 
 undertaking given upon appeal to the General 
 Term, in pursuance of sec. 348 of the Code, must 
 aver the service of a notice of the entry of judg- 
 ment of aflarmance upon the adverse party and 
 the lapse of 10 days thereafter before the com- 
 mencement of the action, otherwise it is bad on 
 demurrer as not stating a cause of action. Sup. 
 Ct., 1875, Porter v. Kingsbury, 5 Hun, 597. 
 
 109. A complaint by an assignee against the 
 obligors of an undertaking given on an arrest 
 under sec. 182 of the Code, must show the re- 
 covery of a judgment in the action wherein it 
 was given, by the defendant therein. An alle- 
 gation of the discontinuance of such action is 
 not sufficient N. Y. Supr. Ct., 1874, Moses v. 
 Waterbury Button Co., 37 N. Y. Supr. (5 J. & Sp.) 
 893. 
 
 110. For usury. A complaint, which avers 
 an application for and the making of a loan upon 
 a pledge of property, followed by a succession 
 of advances and renewals ; and that at the time 
 of each advance and of each renewal a charge 
 of one per cent, on the amount of the debt was 
 made in addition to interest at the legal rate, 
 and the final giving of a note for the balance 
 claimed by the lender, and the renewal of the 
 loan thereupon ; sufficiently alleges a usurious 
 agreement, the word " charge " in that connec- 
 tion implying not only a demand made, but an 
 obligation Imposed and taken. Ct. App., 1872, 
 Merchants Exch. Nat. Bank v. Commercial Ware- 
 house Co., 49 N. Y. (4 Sick.) 635 ; Rev'g S. C, 
 33 N. Y. Supr. (1 J. & Sp.) 317. 
 
 111. Where such complaint alleges that the 
 defendant, a corporation authorized by its char- 
 ter to take charge of property, and make loans 
 thereon on such terms and commissions, and 
 at su(3i rate of interest, not exceeding seven per 
 cent., as may be established by its board of di- 
 rectors, made such charge of one per cent, osten- 
 sibly as commissions, but that it was in fact a 
 merely colorable device to evade the prohibi- 
 tions of its charter and of the usury laws, it 
 presents an issue of fact for the jury as to 
 whether the one per cent, was a bona fide com- 
 mission, or a compensation for the use of money, 
 and not an issue of law which can be reached by 
 demurrer. lb. 
 
 112. For wrongful detention. A com- 
 plaint for the wrongful detention of property 
 need not allege a demand and refusal before 
 suit, but it must aver ownership or right of pos- 
 session in the plaintiff. Alleging detention 
 " from the plaintiff " is not sufficient. N. Y. 
 Supr. Ct., 1871, Scofield v. Whitelegge, 10 Abb. 
 N. S. 104 ; S. C, 33 N. Y. Supr. (1 J. & Sp.) 179 ; 
 Aff'd, 12 Abb. N. S., 320 ; 49 N. Y. (4 Sick.) 259. 
 
 113. For wrongful use of property. A 
 
 complaint which alleges that the plaintiff is the 
 owner of the circulating bills of the M Bank, in- 
 corporated and existing in the State of Greorgia, 
 that he acquired tliem at varipus times, January 
 1860, and that the defendant and other directors 
 of the bank have made wrongful use of its^prop- 
 erty since January 1, 1861, does not state a cause 
 of action, without an averment that the bills 
 were received before January*!, 1861. Sup. Ct., 
 1875, Patterson v. Baker, 3 Hun, 398. 
 
 II. The Answbe. 
 
 u. General Principles, 
 
 114. Admissions by. A defendant, who 
 has admitted title in the plaintiff by his answer, 
 is precluded thereby from afterward insisting 
 that the legal title is in another as trustee for 
 the plaintiff. N. Y. Supr. Ct., 1875, Bruce v. 
 Kelly, 39 N. Y. Supr. (7 J. & Sp.) 27. 
 
 115. A party who admits, by his pleading, 
 that the contract sued on is his contract, is con- 
 cluded by such admission from afterward deny- 
 ing that it is his or that he is liable on it, and 
 will not be suffered to prove any fact inconsist- 
 ent with such admission. N. Y. Supr. Ct., 1875, 
 Schreyer v. Mayor, etc., of New York, 89 N. Y. 
 Supr. (7 J. & Sp.) 1. 
 
 116. He cannot, after such an admission, insist 
 that the contract was illegal, unless he specially 
 pleads that defense. lb. 
 
 117. In an action against a sheriff for a failure 
 to collect an execution, an admission by the an- 
 swer that the execution was handed to and left 
 with defendant's deputy, with instructions not to 
 levy until directed, and was not delivered in any 
 other manner, is an admission of delivery to the 
 defendant for all the purposes of the trial and of 
 an appeal. Ct. App., 1875, Smith v. Smith, 60 
 N. Y. (15 Sick.) 161. 
 
 118. AflBrmative defenses set up in an an- 
 swer must be proved by the defendant, other- 
 wise he will get no benefit therefrom. Sup. Ct., 
 1873, Toim of Venice v. Breed, 65 Barb. 597. 
 
 119. A defendant who, in an action by a town 
 to compel the surrender and cancellation of 
 bonds alleged to have been illegally issued, sets 
 up, by answer, the want of notice of any defect 
 in the bonds, and good faith in the purchase by 
 him, cannot insist that the answer be taken as 
 true and that he be treated as a bona fide holder 
 without notice, when no proof is given on that 
 subject. lb. 
 
 120. In avoidance. When the complaint - 
 does not disclose the source or character of the 
 plaintiff's title to the property sought to be re- 
 covered by him, the defendant not being in a 
 position to set up matter in avoidance of such 
 title, may prove it without its being set up in his 
 answer. N. Y. Supr. Ct., 1874, Hewitt v. Morris, 
 37 N. Y.Supr. (5 J. & Sp.) 18. 
 
 121. Defense misnamed. Where an answer 
 contains all the facts necessary to constitute a 
 dfefense for want of consideration or for a re- 
 coupment of damages, it is not necessary for the 
 defendant to state which he will insist upon ; or, 
 if he does so state, he will not be precluded from 
 insisting -upon any defense which the facts al- 
 leged would justify. It is those facts which con- 
 stitute the defense; and whether the party calls 
 it by the right name or not, is immaterial. Ct. 
 App., 1872, Springer v. Dwt/er, 50 N. Y. (5 Sick.) 
 19 ; Rev'g S. C, 58 Barb. 189. 
 
 122. Equitable defenses and counterclaims 
 to actions at law must, at least, be confined to 
 
552 
 
 PLEADING. 
 
 those cases in which a court of equity, if its ju- 
 risdiotion were invoked by action, would restrain 
 or limit the suit at law, and grant equitable re- 
 lief against it. Sup. Ct., 1871, Cramer v. Benton, 
 4 Lans. 291 ; S. C, 60 Barb. 216. S. P. HicU v. 
 Sheppard, i Lans. 335. 
 
 123. A defendant who sets up such a defense 
 or counterclaim is, pro hac vice, in a court of 
 equity, and must rely on its principles to main- 
 tain his claims. Tb. 
 
 124. Partial defense. The subsequent sei- 
 zure of the same property under valid legal pro- 
 cess, is new matter, purporting to constitute, at 
 least, a partial defense to an action for a trespass 
 in levying thereon under irregular attachments ; 
 and it must be pleaded in order to render evi- 
 dence thereof admissible, even in mitigation of 
 damages. N. Y. Supr. Ct., 1871, Wehle v. Butler, 
 43 How. 5; S. C, 12 Abb.N. S. 139; 34 N. Y. 
 Supr. (2 J. & Sp.) 215; 35 id. 1. 
 
 125. Verification. The verification of an 
 answer when made by a party must be to the 
 effect that it is true to his knowledge, except as 
 those matters stated on information, &c. ; and a 
 verification of an answer to a duly verified com- 
 plaint which omits the words to his knowledge, or 
 others to that effect, is insufficient and tlie plead- 
 ing may be returned for that reason and judg- 
 ment taken as upon a failure to answer. N. Y. 
 C. P., 1871, Sexaner v. Bowen, 10 Abb. N. S. 335 ; 
 S. C, 3 Daly, 405. 
 
 126. — omission of. The provisions of sec. 
 157 of the Code, and of sec. 1, ch. 76j Laws of 
 1854, allowing the verification of a pleading to 
 be omitted when the party called upon to verify 
 would be privileged from testifying as a witness 
 to the truth of any matter denied by such plead- 
 ing, apply only to cases where the accusatory 
 matter was contained in the pleading to be an- 
 swered. Ct. App., 1873, Fredericks v. Taylor, 14 
 Abb. N. S. 77 ; S. C, 52 N. Y. (7 Sick.) 596. 
 
 127. A defendant cannot avoid verifying his 
 pleading by inserting therein new matter, show- 
 ing the claim of the plaintiff to be founded upon 
 or connected with some offense of the defendant, 
 as to which he would be privileged from testify- 
 ing as a witness. lb. 
 
 128. Thus, an answer to a complaint for 
 money loaned, which sets up that the loan was 
 made in a transaction in violation of the lottery 
 laws, must be verified. lb. 
 
 5. General and Specific denials. 
 
 129. A general denial of each and every al- 
 legation of the complaint in effect- denies every 
 fact essential to make out a cause of action 
 against the defendant, at the time of the com- 
 mencement of the suit, and under it he may show 
 that the action was prematurely commenced. 
 Sup. Ct., 1875, Mack v. Burt, 5 Hun, 28. 
 
 130. Under a general denial, the defendant is 
 entitled to controvert any fact necessary to be 
 established by the plaintiff to authorize a recov- 
 ery, but not to introduce a defense founded 
 upon new matter. Ct. App., 1872, Weaver v. 
 Barden, 49 N. Y. (4 Sick.) 286. 
 
 ' 131. Where, in an action to compel a surren- 
 der of certain stocks, the complaint alleges title 
 in the plaintiff and a transfer to the defendant 
 by a third party in payment of a debt of the lat- 
 ter, — Held, that defendant could not, under a 
 general denial, show that he was a bona fide pur- 
 chaser for value. lb. 
 
 132. Where the complaint, in an action upon 
 a bond given to secure the performance of a con- 
 tract, alleged that by the terms of the bond the 
 
 damages for the breach of such contract were 
 liquidated at $5,000, — Held, that an answer de- 
 nying each and every allegation in the complaint 
 not admitted, and admitting the execution of a 
 bond, with the condition mentioned in the com- 
 plaint, put in issue the allegation that the dam- 
 ages were, by the terms of the bond liquidated 
 at that sum, and made it necessary for the plain- 
 tiff to produce proof thereof. Sup. Ct., 1875, 
 Walsh V. Mehrback, 5 Hun, 448. 
 
 133. In an action on a promissory note, where 
 the complaint alleges a sale and delivery by the 
 payee to the plaintiff " who is the owner," &c., 
 an answer admitting the execution of the note 
 as charged, but denying each and every other 
 material allegation, and alleging payment, — 
 Held sufficient to put in issue the sale and deliv- 
 ery, and to authorize proof of ownership in fact 
 by the payee and a payment to him. Ct. App., 
 1871, Allis V. Leonard, 46 N. Y. (1 Sick.) 688. 
 
 134. Although a complaint contains several 
 connected or dependent propositions, a general 
 denial of all or several of them cannot be consid- 
 ered as embracing a negative pregnant. Ot. 
 App., 1871, Thompson v. Erie Railway Co., 45 N. 
 Y. (6 Hand,) 468. 
 
 135. Denial on infonnation and belief. 
 In an action against a railroad company to re- 
 cover damages for injuries sustained while 
 travelling on its cars, an answer which admits 
 certain things, and " upon its information and 
 belief " denies that the plaintiff was bruised or 
 injured in the particulars charged, does not 
 deny the allegations of the complaint as re- 
 quired by sec. 149 of the Code, but may be 
 treated as frivolous. Sup. Ct., 1874, Poivers v. 
 Rome, Wat. Sr Ogd. R. R. Co., 3 Hun, 285. 
 
 136. Deni^ of knowledge or information. 
 An answer which alleges that the defendants 
 " have no knowledge or information sufficient to 
 form a belief " of the truth of the allegations of 
 the complaint, is sufficient to put in issue those 
 allegations, even though accompanied by an aver- 
 ment that the truth is " that they are entirely 
 ignorant and uninformed" in respect tliereto. 
 Sup. Ct, 1875, Meehan y. Harlem Savings Bank, 
 5 Hun, 439. 
 
 137. Of information. An answer by a trus- 
 tee of a manufacturing corporation in an action 
 to enforce his liability on its notes, which al- 
 leges that he has not sufficient information on 
 which to form a belief as to whether or not the 
 company ever made the notes sued on, and 
 therefore denies the same, is not a sufficient 
 denial under the Code, which requires a denial 
 of knowledge as well as information. N. Y. 
 Supr. Ct., 1874, Lloyd v. Bums, 38 N. Y. Supr. 
 (6 J. & Sp.) 423. 
 
 138. An admission, by such defendant, that the 
 company indorsed the notes is a sufficient ad- 
 mission of knowledge to preclude him from 
 claiming the benefit of such a denial. lb. 
 
 139. What facts provable under. Under 
 a general or specific denial of any fact which 
 the plaintiff is required to prove to maintain his 
 action, the defendant may given any evidence 
 tending to disprove it. Ct. App., 1872, Green- 
 field V. Mass. Mutual Life Ins. Co., 47 N. Y. (2 
 Sick.) 430. 
 
 140. Anything which tends to show that the 
 plaintiff never had a cause of action against the 
 defendant is competent, and may be proved 
 under a general denial of the cause of action 
 alleged. This rule does not apply, however, to 
 a suit upon a negotiable promissory note by one 
 who bought it in good faith before due. Sup. 
 Ct., 1871, Evans v. Williams, 60 Barb. 346. 
 
PLEADING. 
 
 553 
 
 141. Under an answer of general denial and 
 payment to an action on a non-negotiable note, 
 the defendant may show that it was given for 
 the supposed balance on a note of a third party, 
 and that such' note had previously been paid in 
 full. lb. 
 
 142. Where the complaint in an action for 
 the purchase-price of goods claimed to have 
 been sold and delivered to defendant's agent, 
 alleges simply a sale to the defendants,' it is not 
 necessary in the answer to set up a revocation 
 of the agent's authority and notice thereof to 
 the plaintiffs prior to tlie sale, but those facts 
 mav be proved under a general denial. Ct. 
 App., 1872, Mier v. Grant, 47 N. Y. (2 Sick.) 278. 
 
 143. Under an answer of general denial, in an 
 action to rescind a contract on the ground of 
 fraud, the defendant can give no evidence ex- 
 cept such as tends to disprove the allegations of 
 the complaint. He cannot, therefore, intro- 
 duce in evidence the record of a judgment in a 
 former suit to recover damages for the same 
 fraud. Sup. Ct., 1875, Dalnimple v. Hunt, 5 
 Hun, 111. V • • " ^ 
 
 144. Under a general denial, in an action upon 
 a judgment, the defendant cannot be permitted 
 to show that, subsequent to the entry of the 
 judgment, it was vacated by order of the court. 
 N. Y. C. P., 1871, Carpenter \. Goodwin, 4 Daly, 
 89. 
 
 e. Counterclairn. 
 
 145. wnat is. A counterclaim, as now used 
 and understood, includes recoupment and set- 
 ofi ; and where an answer contains a statement 
 of new matter constituting a counterclaim, in 
 ordinary and concise language, although it is 
 called therein a " second defense," and claims a 
 sum certain as damages, " which sum the de- 
 tendant will recoup against any demand of the 
 plaintiffs in this action," that is sufficient to en- 
 able the defendant to avail liimself of such 
 matter as a counterclaim, beyond a mere ex- 
 tinguishment of the plaintiff's demand. Sup. 
 Ct., 1872, Wilder v. Boynton, 63 Barb. 547. 
 
 146. An answer in an action on contract 
 which avers an agreement made between the de- 
 fendant and the plaintiff as his broker, that, by 
 virtue of and under this agreement the plaintiff, 
 after receiving money and other property of 4e- 
 fendant, refused to account to defendant, and 
 appropriated the same to his own use, and there- 
 by became " indebted to this defendant, whereby 
 an action has accrued " to the defendant, and by 
 way of counterclaim asks judgm^t against the 
 plaintiff for the sum specified, sets up a cause of 
 action on contract, constituting a proper counter- 
 claim. Sup. Ct., 1872, Coit V. Stewart, 12 Abb. 
 N.S.216. 
 
 147. An answer in an action on contract which 
 sets up a claim in favor of the defendant against 
 the plaintiff, arising out of partnership transac- 
 tions between them, alleges that tlie partner- 
 ship terminated at a certain day before the com- 
 mencement of the suit, and that there is a cer- 
 tain sum due the defendant as such partner, and 
 asks for an accounting and tliat the amount 
 found due him may "be set off and allowed 
 against the plaintiff's claim, and a judgment 
 rendered in his favor for the balance, sets up a 
 valid counterclaim. Sup. Ct., 1872, Clifl v. 
 Northrup, 6 Lans. 330. 
 
 148. Where such answer alleges that the 
 partnership terminated on a certain day before 
 the commencement of the suit, and that the 
 plaintiff conducted the business and acted as 
 
 financial manager, and had possession of the 
 funds and all payments, and had in his posses- 
 sion all the capital and profits of the business, — 
 Held, that it sufficiently appeared from these 
 allegations that the counterclaim was in ex- 
 istence at the commencement of the action. lb. 
 
 149. An answer in an action on a promissory 
 note, which alleges that it was given in part 
 payment of the purchase-money of a certain 
 farm, which defendant was induced to purchase 
 by the false and fraudulent representations of 
 the plaintiff as to its territorial extent, that if the 
 representations had been true the value of the 
 farm would have been enhanced more than 
 $5,000, and that defendant had sustained damage 
 to that amount, sets up a valid counterclaim, to 
 which plaintiff, if he wishes to contest it, must 
 reply. Ct. App., 1873, Isham r. Davidson, 52 
 N. Y. (7 Sick.) 237. 
 
 150. An action for the foreclosure of a mort- 
 gage given to secure a bond, wherein the com- 
 plaint asks judgment for deficiency against 
 the obligor, is not only an action upon contract, 
 to which an offset might have been pleaded be- 
 fore the Code, but one in which, under the 
 Code, a several judgment might be had as be- 
 tween the plaintiff and obligor, and hence is sub- 
 ject to a eounterclaim of any other cause of ac- 
 tion arising also on contract, which the obligor 
 had against the plaintiff at the time of the com- 
 mencement of the action. Com. App., 1873, 
 Hunt V. Chapman, 51 N. Y. (6 Sick.) 555. 
 
 151. In an action to close up a partnership 
 created by defendant's purchase frgm the plain- 
 tiff and another of the assets of a prior part- 
 nership between them, and the exercise by the 
 defendants of an option given them by the con- 
 tract of purchase, to receive the plaintiff as a 
 partner and pay him a percentage of the profits 
 instead of the sum agreed on as his interest in 
 the assets, the defendants may set up as a 
 counterclaim that they were induced to make 
 the purchase by the fraudulent representations 
 of the plaintiff as to the cost of the property 
 and value of the business purchased. Ct. App., 
 1875, More V. Rand, 60 N. Y. (15 Sick.) 208. 
 
 152. Although a joint action for the deceit 
 would lie against both the plaintiff and his 
 former partner, yet the right of action was 
 several ; and the original contract created the 
 obligation which bound the plaintiff when the 
 defendants elected to take him as a partner, and 
 the action was therefore,' in. a general sense, 
 founded on the contract, and the fraud so con- 
 nected therewith as to be available as a counter- 
 claim; and the defendants having a common 
 interest to diminish tlie plaintiff's claim upon 
 the partnership, were entitled to have the ques- 
 tion adjudicated in the action. lb. 
 
 153. Even though the defendants discovered 
 the fraud before they received the plaintiff as a 
 partner, yet they could not by a rescission of the 
 contract recover back the money paid to the 
 other partner ; and therefore had the right, for 
 their own protection, to hold the plaintiff to his 
 contract, and their election to do so did not re- 
 lieve him from Hability for the fraud. lb. 
 
 154. A note given by one member of a firm 
 to his copartner for one-half of his own indebted- 
 ness to the firm, becomes the individual prop- 
 erty of the latter, and constitutes a valid counter- 
 claim to an action upon a bond executed by 
 him with surety to the maker of the note, on 
 dissolution of the firm, conditioned for the pay- 
 ment of the partnership debts. Ct. App., 1873, 
 Men-ill V. Green, 55 N. Y. (10 Sick.) 270. 
 
 155. A claim for services rendered for the 
 
554 
 
 PLEADING. 
 
 benefit of an estate, upon the employment of a 
 receiver thereof, is a ralid counterclaim in an 
 action by such receiver for a debt due the estate. 
 Ct. App., 1874, Davis v. Stover, 58 N. Y. (13 
 Sick.) 473. 
 
 156. In an action for damages for breach of a 
 contract for the sale of lands, where the vendor, 
 after refusal of the vendee to perform, sold the 
 lands to another, such vendee may ofiset the 
 amount already paid by him towards the pur- 
 chase money. N. Y. C. P., 1873, Hening v. 
 Punnett, 4 Daly, 543. 
 
 157. The failure of the plaintiffs to perform a 
 contract to employ the defendant as their agent 
 for the sale of their goods, for one year, at a 
 yearly compensation of not less than $1,500, 
 may properly be set up as a counterclaim to an 
 action to recover money received by him as such 
 agent ; and the amount due him for salary in 
 accordance with such contract be allowed him 
 therein. Sup. Ct., 1874, Grierson v. Mason, 1 
 Hun, 113 ; Aff'd by Ct. App. 
 
 158. In an action upon a contract, to recover 
 the agreed price for cutting staves for defend- 
 ant, the latter may set up as a counterclaim 
 arising out of the sartie transaction and con- 
 nected with the subject of the action, a claim 
 for staves, culls and corner-pieces, made from 
 the bolts drawn by him to the plaintiff's mill to 
 be cut into staves, which have been .converted 
 by plaintiff to his own use. Sup. Ct., 1872, 
 Wadley v. Davis, 63 Barb. 500. 
 
 159. Breach of warranty and fraud in the sale 
 of the propejty for which the note in suit was 
 given, can only be set up by way of counter- 
 claim and in reduction of the amount due on 
 the note, where the vendee retains and does not 
 offer to return the property. Sup. Ct., 1874, 
 Hopkins V. Ijane, 2 Hun, 38. 
 
 160. Where the sale was made to three per- 
 sons jointly, such counterclaim cannot be set 
 up by one of them in an action upon his indi- 
 vidual obligations given in payment of his share 
 of the price. lb. 
 
 161. In an action for the purchase price of 
 goods sold by executory contract with warranty 
 as to quality, the purchaser may set up as a 
 counterclaim his damages for the breach of war- 
 ranty, where the defects were not visible to in- 
 spection but were discovered afterward, although 
 he did not test the quality before using. Com. 
 App., 1874, Dounce v. Dow, 57 N. Y. (12 Sick.) 16. 
 
 . 162. In favor of one defendant. In an 
 action against several defendants, a set-off could 
 not be pleaded, under 2 R. S. 354, sec. 18, subd. 
 6 (2 Bdm. Stats. 366), unless it was due from 
 the plaintiii to all the defendants jointly ; but 
 sec. 150 of the Code allows one of several de- 
 fendants sued jointly upon a joint and several 
 liability, to avail himself of a counterclaim in 
 favor of himself alone against the plaintiff, and, 
 if allowed, it will operate pro tanto as a satisfac- 
 tion of the plaintiff's claim against all the de- 
 fendants. N. Y. Supr. Ct. Sp. T., 1872, Perry v. 
 Chester, 12 Abb. N. S. 131. 
 
 163. Such a counterclaim can, however, be 
 set up at law only where the defendants are 
 severally as well as jointly liable. lb. 
 
 164. Equity will, in some cases, allow a counter- 
 claim held by one of two jointly indebted de- 
 fendants, to be set up and to operate in favor of 
 botli defendants, when from the peculiar circum- 
 stances of the case justice seems to demand it. 
 lb. 
 
 165. Thus, in an action upon an undertaking 
 on appeal which was joint and not several, 
 where it appears that the respondent is Insol- 
 
 vent, equity will allow a counterclaim in favor 
 of one of the defendants alone to be so set up. 
 lb. 
 
 166. An action to foreclose a mortgage given 
 to secure a joint bond, in which the mortgagor 
 is principal and the other obligor a mere surety, 
 although brought against both obligors and 
 judgment for deficiency sought against both, is 
 one in which a several judgment may be ren- 
 dered, within the meaning of sec. 150 of the 
 Code ; and a several debt, in favor of the mort- 
 gagor and against the plaintiff, may be set up 
 by way of counterclaim in such action. Ct. 
 App., 1875, Bathgate v. Haskin, 59 N. Y. (14 
 Sick.) 533. 
 
 167. IVIust be pleaded. In an action for a 
 balance due upon a building contract, damages 
 for non-performance according to its conditions, 
 cannot be offset, or recovery had therefor by 
 the defendant, either by way of counterelaim 
 or recoupment, unless set forth as such in the 
 answer. N. Y. C. P., 1871, Shute v. Hamilton, 3 
 Daly, 462. 
 
 168. In an action pn a contract for work and 
 materials for a railroad, which provided that 
 "all stone obtained from excavations which 
 may in the opinion of the engineer be suitable 
 for masonry, shall be the property of the com- 
 pany," a claim of the defendant for stone ob- 
 tained from excavations and used by defend- 
 ant, is in the nature of a counterclaim, and 
 should be pleaded as such and not as payment. 
 Sup. Ct., 1875, Bead v. Decker, 5 Hun, 646. 
 
 169. The answer should allege that such stone 
 were, in the opinion of the engineer, suitable for 
 masonry. lb. 
 
 170. Set-off. In pleading, as a set-off, a 
 cause of action for money obtained by the plain- 
 tiff or his assignor by fraud and collusion, which 
 might have been the subject of an action in 
 tort, it is proper to set out the facts jy hich must 
 be proved, and aver as the gravamen of the ac- 
 tion the liability and promise which the law im- 
 plies from them. Sup. Ct., 1874, Harway v. 
 Mayor, etc., of New York, 1 Hun, 628. ^ 
 
 171. Claim not audited. A claim by a su- 
 pervisor against a town for services, presented 
 to but not acted upon by the board of audit, is 
 not a proper counterclaim, in an action by such 
 town against him, under the , provisions of ch. 
 534, Laws of 1866, amending' 1 R. S., 349, sec. 
 5, to recover a balance of town moneys claimed 
 to be in his hands unaccounted for. Ct. App., 
 1874, Town of Guilford V. Cooley, 58 N. Y. (13 
 Sick.) 116. 
 
 172. — agajAst third party. A landlord, 
 who is sued, on his promise to pay a contractor 
 for repairs on the leased premises a sum which 
 he had previously agreed to pay therefor to the 
 sub-tenant, under whom such repairs were com- 
 menced, cannot set up rent due him on the lease 
 to such sub-tenant as a counterclaim, on the 
 ground that the contractor had taken an assign- 
 ment thereof, when it appears that such assign- 
 ment was merely as security, and the assignee 
 had not entered into possession except for the 
 purpose of making the repairs contracted for. 
 Sup. Ct., 1873, Tollman v. Bresler, 65 Barb. 369. 
 
 173. In an action by a commissioner of esti- 
 mate and assessment against a city to recover 
 the amount taxed and allowed for services and 
 expenses, the defendant cannot set up a claim 
 in its favor against one who is alleged to be en- 
 titled to a part of the amount allowed to the 
 commissioners, as a counterclaim. It does not 
 constitute a counterelaim under sec. 150 of the 
 Code, nor under the provisions of the Revised 
 
PLEADING. 
 
 555 
 
 statutes, relative to actions by trustees, etc. 
 Sup. Ct., 1875, Pittman v. Mayor, etc., of New 
 Yixrk, 3 Hun, 870. 
 
 174. — in favor of third party. In an ac- 
 tion against the guarantor of bonds, the prin- 
 cipal maker not being joined, the defendant 
 cannot set up a cause of action in favor of such 
 maker as a counterclaim ; and if he does, the 
 plaintiff need not reply to it. N. Y. C. P., Sp. T., 
 1873, Burroughs v. Garrison, 15 Abb. N. S. 144. 
 
 175. One who has transferred notes and 
 claims to a trustee, in trust for the benefit of 
 himself and wife, cannot afterward, without the 
 concurrence of his wife, transfer them absolute- 
 ly to the trustee in his individual capacity ; and 
 the trustee cannot, therefore, set-off or counter- 
 claim them in an action against himself individ- 
 ually by the debtor in such notes and claims. 
 Sup. Ct., 1871, Foster v. Coe, 4 Lans. 53. 
 
 176. — for injunction. In an action to re- 
 strain the use of plaintifi's trade-mark by the 
 defendant, the latter cannot set his claim to 
 such trade-mark as his own by way of comiter- 
 claim, and obtain an injunction against the 
 plaintiff's use thereof. Sup. Ct., Glen 4r Sail 
 Manuf. Co. V. HaU, 6 Lans. 158. 
 
 177. Money obtained by fraud. In an ac- 
 tion upon contract, the defendant cannot set up 
 as a counterclaim, that plaintifi had fraudulent- 
 ly induced him to pay moneys falsely claimed 
 under the contract, in excess of the value of the 
 work, and demand repayment. Possibly, he 
 might waive the tort, and claim a recovery of 
 the money overpaid as on an implied contract ; 
 but, to do so, he must set forth in his answer 
 facts showing his election to proceed on the con- 
 tract and not for the wrong. N. Y. Supr. Ct., 
 Sp. T., 1873, Berrian v. Mayor, etc., of New York, 
 15 Abb. N. S. 207. 
 
 178. "Want of consideration. Where plain- 
 tiffs to whom the town of Oakland, Cal., had 
 granted the exclusive privilege of running a 
 ferry between that place and San Francisco, in 
 consideration of a percentage of the receipts to 
 be paid them, assigned and transferred all their 
 rights under the grant to the defendants, not 
 covenanting that such rights were exclusive ; — 
 Held, that the defendants could not, in an action 
 for an accounting as to the receipts from the 
 ferry, and payment of plaintiff's share, allege 
 by way of counterclaim, that the town of Oak- 
 land had no power to confer the exclusive right 
 of ferry age, and that thereby the defendants had 
 sustained damage. Sup. Ct., 1873, Carpentier v. 
 Minium, 65 Barb. 293. 
 
 179. In action of tort. In an action for the 
 wrongful taking and conversion of certain 
 household goods, &c., a counterclaim for dam- 
 ages alleged to have been sustained by defend- 
 ant by reason of plaintiffs' default in the per- 
 formance of the conditions of a chattel mort- 
 gage of said property, executed by them to de- 
 fendant, by virtue of which he took the same, 
 and by reason of their concealment of part of 
 the property so that he could not find it, and of 
 their want of title to part of that which he did 
 find, cannot be sustained, because it did not 
 arise out of the transaction set forth in the com- 
 plaint, nor can it be upheld as being connected 
 with the trespass, which is the " subject of the 
 action," without a great stretch of the meaning 
 of those words. N. Y. Supr. Ct, 1870, Chamboret 
 V. Cagney, 41 How. 125 ; S. C, 10 Abb. N. S. 31; 
 2 Sweeny, 378. 
 
 180. It seems, that, under subd. 1, sec. 150 of 
 the Code, a counterclaim may be interposed in 
 an action for a tort, provided it arises out of the 
 
 transaction set forth in the complaint, as the 
 foundation of the plaintiff's claim, or is con- 
 nected with the subject of the action. lb. 
 
 181. In an action to recover damages for fraud- 
 ulent acts and representations of defendant, 
 whereby plaintiff was induced to give a note 
 which he afterward paid to a bona fide holder, a 
 counterclaim is not admissible, unless it arose 
 out of the transaction set forth in the complaint 
 Sup. Ct, 1875, MilUr V. Barber, 4 Hun, 802. 
 
 182. An action to compel the surrender and 
 cancellation of town bonds, on the ground -that 
 they were illegally issued, not being founded on 
 contract, a counterclaim arising upon contract, 
 such as a claim for money loaned to the town 
 and appropriated to its use, having no apparent 
 connection with the issue of the bonds, is not 
 available. Sup. Ct., 1873, Town of Venice v. 
 Breed, 65 Barb. 597. 
 
 d. Particular defenses. 
 
 183. Authorized acta. In an action by an 
 administrator to recover moneys of his intestate, 
 an answer which sets up a power of attorney 
 and subsec^uent acts of the intestate authorizing 
 the agent to manage, control and carry on his 
 business in his absence, and the proper applica- 
 tion by the agent of the moneys claimed to the 
 purposes of such business, after the death of the 
 principal but before he had knowledge thereof, 
 shows a good defense, and therefore a general 
 demurrer to the whole answer will be overruled. 
 N.-Y;. C. p. Sp. T., 1874, Beid v. Bank of N. Y. 
 National Bkg. Association, 47 How. 358. 
 
 184. Adultery on the part of the plaintiff, 
 when set up as a defense to ah action for divorce, 
 must be alleged with the same particularity as 
 to times and places as are required in a complaint 
 for divorce for that cause. If the parties with 
 wh(5m the adulteries alleged were committed are 
 unknown to the defendant, he may be justified 
 in BO alleging, but not in omitting to state the 
 times and places at which they were committed. 
 Sup. Ct Sp. T., 1874, Tim v. Tim, in How. 253. 
 
 186. Another action pending. The pen- 
 dency of another action on the same subject 
 matter, or its result, must be pleaded in order 
 to render the pleadings and proceedings therein 
 admissible in evidence in the subsequent action. 
 N. Y. Supr. Ct., 1873, White v. Talmage, 35 N. Y. 
 Supr. (3 J. & Sp.) 223. 
 
 186. If the facts existed when the answer was 
 put in, it should have been set up as a defense 
 at that time ; or if they arose afterwards, then 
 by supplemental answer. lb. 
 
 187. The pendency of a former action against 
 two parties to recover possession of lands held 
 by them under a referee's sale, in which it is not 
 alleged that they had any joint interest in the 
 same piece of land, may be plead in abatement 
 of subsequent suits against the same parties 
 severally, to recover the possession of tlie same 
 lands and for mesne profits. Sup. Ct., 1873, Daw- 
 ley V. Brown, 65 Barb. 107. 
 
 188. Coverture of plaintiff. The defense 
 that the plaintiff is a married woman and has no 
 separate estate or carries on no separate trade 
 or business, to be available, must be set up by 
 answer. Sup. Ct, 1874, Stevens v. Bostwick, 2 
 Hun, 423. 
 
 189. Disability of plaintiff. The defense 
 of the disaliility of the plaintiff to bring a suit 
 in the form adopted, is to be regarded as dilatory 
 merely, and, to be made available, must be 
 strictly pleaded. Com. App., 1873, Wright v. 
 Wright, 54 N. Y. (9 Sick.) 437. 
 
556 
 
 PLEADING. 
 
 190. Fraud. An answer in an action on con- 
 tract, which alleges the making of certain repre- 
 sentations by the plaintiff as inducements to the 
 contract, and avers their falsity, but does not 
 allege that they were made knowingly and with 
 fraudulent intent, is not sufficient to raise the 
 issue of fraud. Ct, App., 1874, Dubois v. Her- 
 mance, 56 N. Y. (11 Sick.) 673. 
 
 191. An answer in an action for the purchase 
 price of goods ^old which alleges that the plain- 
 tiff represented such goods to be merchantable, 
 on which representation defendant's agent relied 
 in making the purchase, and that they were not 
 merchantable, which fact was known to plaintiff, 
 does not raise an issue of fraud, as two essential 
 elements are omitted, viz. : an allegation that 
 plaintiff made the representations with intent to 
 deceive, and that defendant or his agent was in 
 fact deceived. Ct. App., 1873, Lefler v. Field, 
 52 N. Y. (7 Sick.) 621. 
 
 192. The illegality of the contract sued on 
 must be pleaded, otherwise it will not be avail- 
 able as a defense. N. Y. Supr. Ct., 1875, Schreyer 
 V. Mayor, etc. of New York, 39 N. Y. Supr. (1 J. 
 & Sp.) 1. 
 
 193. The defense that the contract sued on is 
 illegal, because in violation of the act requiring 
 that the designation " & Co." shall represent an 
 actual partner, must be pleaded specially by 
 setting out the necessary facts in the answer ; 
 otherwise the defendant cannot avail himself of 
 it though proved. Sup. Ct., 1874, 0' Toole v. Gar- 
 vin, 1 Hun, 92. 
 
 194. Illegal purpose. In an action against 
 a carrier for the loss of goods entrusted to him, 
 the defendant seeking to avail himself of the de- 
 fense that the goods were shipped by the plain- 
 tiff with the illegal intent to smuggle them into 
 the United States, should be held to clear and 
 positive averments, leaving no doubt that it 
 means to charge distinctly that the specific goods, 
 the value of which is the subject of the action, 
 were shipped with that intention. N. Y. Supr. 
 Ct. Sp. T., 1875, Donovan v. Oo. Generale Trans- 
 Atlantique, 39 N. Y. Supr. (7 J. & Sp.) 519. 
 
 195. Justification or mitigation of dam- 
 ages. In libel or slander the same matter may 
 be pleaded both in justification and in mitiga- 
 tion ; but they must be separately stated for 
 each of those purposes, and the particular pur- 
 pose for which they are stated be alleged. N. 
 Y. Supr. Ct. Sp. T., 1872, Fink v. Justh, 14 Abb. 
 N. S. 107. ■ 
 
 196. The truth of the alleged defamatory 
 words, and the fact that it was a privileged 
 communication, are separate defenses, and they 
 must be separately stated and the purpose of 
 stating them alleged ; and the pleader may then 
 add a notice that he will use all the evidence to 
 mitigate the damages. lb. 
 
 197. In an action for slander in imputing per- 
 jury to the plaintiff, the answer alleged that the 
 parties had a suit before a justice of the peace, 
 upon the trial of which the plaintiff gave ma- 
 terial evidence which was false, and that the 
 words spoken had reference to such testimony. 
 Held, — that such answer, though not sufficient, 
 without a further allegation of plaintiff's knowl- 
 edge of the falsity of his testimony, to admit 
 proof in justification, was sufficient to enable 
 the defendant to prove the facts alleged in 
 mitigation of damages. Com.' App., 1873, 
 Spooner v. Keeler, 51 N. Y. (6 Sick.) 527 ; Eev'g, 
 51 Barb. 580. 
 
 198. In an action against a commercial agen- 
 cy for a libel, they may properly set up in their 
 answer that they had contracted with another 
 
 agency for furnishing to each other information 
 concerning th6 business and commercial stand- 
 ing of business men in their respective districts, 
 and that the words complained of were com- 
 posed and telegraphed as a warning, and for in- 
 formation to such other agency, in confidence, 
 and for their business, and not to be used in any 
 other way; those facts, if not constituting a jus- 
 tification, being proper to be taken into con- 
 sideration as mitigating circumstances. Sup. Ct., 
 1874, Jeffras v. McKillop if Spragae Co., 48 How. 
 122 ; S. C. 2 Hun, 351. 
 
 199. The provisions of sees. 149, 150 of the 
 Code, requiring partial defenses to be pleaded, 
 are applicable to matters in mitigation of dam- 
 ages, so far at least as those matters occur after 
 the act complained of as the cause of action, 
 and out of the presence of the plaintiff. N. Y. 
 C. P., 1872, WeMe v. Haviland, 42 How. 399 : 
 S. C. 4 Daly 550. 
 
 .200. Thus a subsequent levy under a valid 
 attachment in favor of a third party, must be 
 pleaded, in order to be given in evidence to 
 mitigate damages, in an action for a levy under 
 an invalid attachment. lb. 
 
 201. Marital relation. An answer in an 
 action for a limited divorce, which avers that 
 at the time of the alleged marriage with the 
 defendant " the plaintiff was a married woman, 
 the wife of one C, then living, from whom she 
 had never been divorced, but whose lawful wife 
 she then was, which facts were unknown to the 
 defendant," etc., states a valid marital relation 
 between the plaintiff and another existing at 
 the time specified, and it is not necessary to 
 negative the exception of the statute by aver- 
 ring that the former husband had not been sen- 
 tenced to imprisonment for life. Sup. Ct,1875, 
 Clark V. Clark, 5 Hun, 840. 
 
 202. Mistake in contract. In an action on 
 a contract to navigate a vessel from Oswego to 
 Martinsburgh, wherein the owner assumed the 
 " risk of navigation," the answer alleged that 
 performance was prevented because the boat 
 was too large to pass the locks on the Black 
 River canal, and that, by the verbal agreement 
 between the parties preceding the written one, 
 and in pursuance of and in conformity with 
 which the latter was intended to be and under- 
 stood to have been drawn by both parties, the 
 risk in question was assumed by the plaintiff; 
 and prayed that the contract might be reformed 
 by inserting a clause to-that effect. EM, suf- 
 ficient to admit proof of a mutual mistake.. Com. 
 App., 1872, Pitcher v. Hennessey, 48 N. Y. (3 
 Sick.) 416. 
 
 203. No appropriation. In an action by an 
 officer to recover the balance of his salary, as 
 fixed by law, from the municipality which is 
 bound to pay it, the plea of no appropriation is 
 of no greater force or effect than would be the 
 plea of inconvenience in case of an individual 
 debtor. N. Y. Supr. Ct., Sp. T., 1876, Jarvis v. 
 Mayor, etc. of New York, 49 How. 364. 
 
 204. Non-joinder. When the defense of 
 non-joinder of parties plaintiff exists, and is not 
 disclosed by the complaint, it must be set up in 
 the answer, otherwise it cannot be taken ad- 
 vantage of on the trial. Sup. Ct., 1874, Dickin- 
 son V. Vanderpoel, 2 Hun, 626. 
 
 205. A defendant sued alone, may set up by 
 answer, that another person is jointly liable 
 with him, and that, if proved, constitutes a per- 
 fect defense to the action. Sup. Ct., 1874, Ma^ 
 son V. Wells, 2 Hun, 518. 
 
 206. Ownership of demand in third par- 
 ty. A defendant who omits to plead the ap 
 
PLEADING. 
 
 557 
 
 pointment of a receiver to <the plaintiff's as- 
 signor, before the assignment by him of the de- 
 mand in suit, cannot be permitted to prove it on 
 the trial. Perhaps he might be permitted to 
 show that the assignment was without consider- 
 ation, or not valid ; but not that tlie demand is 
 owned bv a third party. Sup. Ct., 1872, Brett v. 
 First U. So; of Brooklyn, 63 Barb. 610. 
 
 207. Payment. The defense of payment 
 will not avail unless it is set up by the answer, 
 or it is amended after reception of the proof, to 
 conform thereto. Sup. Ct., 1874, Seward v. Tor- 
 r-ence, 3 Hun, 220. 
 
 208. Presumption of payment of an assess- 
 ment, arising from the lapse of more than 20 
 years from the time it was imposed, should be 
 taken advantage of by plea of payment, and not 
 of the statute of limitations. Sup. Ct., 1875, 
 Fisher v. Mayor, etc. of New York, 3 Hun, 648. 
 
 209. Removal of cause. An answer alleg- 
 ing a removal of the cause to the United States 
 Circuit Court by the filing of a bond and petition 
 and other proceedings bad, all in conformity to 
 the statutes of the United States and the prac- 
 tice in such case made and provided, is sufficient 
 both in form and substance, although not stat- 
 ing specifically that such filing was at the time 
 of entering appearance in the state court. Ct. 
 App., 1871, Ayres v. Western M. R. Corporation, 
 45 N. Y. (6 Hand,) 260. 
 
 210. Sale for tases. An answer in an action 
 to recover dower, which sets up the defense 
 that the premises have been sold for taxes, and 
 that the defendant claims under the tax sale, 
 and a lease or conveyance thereof from the cor- 
 poration, must state every fact necessary to be 
 proved on the trial, to show a valid levy and 
 sale and lease, otherwise it wiU. be bad on de- 
 murrer. Sup. Ct., 1871, Nicoll V. Fash, 59 Barb. 
 275. 
 
 211. Statute of frauds. It is necessary to 
 plead the statute of frauds, only when the com- 
 plaint sets forth a contract and the answer 
 admits the allegation. Sup. Ct., 1875, Alger v. 
 Johnson, 4 Hun, 412. 
 
 212. Statute of limitations. The defense 
 of the statute of limitations must, under the 
 Code, be set up by answer, even though it 
 appears upon the face of the complaint that the 
 
 - cause of action did not accrue within the pre- 
 scribed limit ; and it is not necessary in such a 
 case to allege matter of avoidance in the com- 
 plaint, but it is incumbent on the plaintiff to 
 prove it. N. T. Supr. Ct., 1872, Baldwin v. Mar- 
 tin, 14 Abb. N. S. 9; S. C, 35 N. Y. Supr. (3 J. 
 & Sp.) 85. 
 
 213. The rule is the same, whether the action 
 is of an equitable or legal nature. lb. 
 
 214. The objection, that an action for a 
 penalty was not commenced within the time 
 limited by law, can be taken only by answer. 
 Sup. Ct., 1875, Cotton V. Maurer, 3 Hun, 552. 
 
 215. An answer setting up that the contract 
 sued on is usurious according to the laws of a 
 foreign State is demurrable if it does not show 
 that the contract was governed by the laws of 
 that State, or made to be performed there. Sup. 
 Ct. Sp. T., Mayer v. Louis, 12 Abb. N. S. 5. 
 
 216. 'Waiver of tort. In an action for a 
 balance due on account of carriages sold, &c., to 
 the defendant, wherein the plaintiff allows the 
 defendant credit for one carriage left with him 
 
 . by defendant and sold on his account, the latter 
 cannot be permitted to show that such sale was 
 made without authority and against orders, and 
 for a price far below its value, under a general 
 denial ; but to avail himself of such breach of 
 
 duty, the defendant must plead it in some form. 
 Com. App., 1873, Wood v. Belden, 54 N. Y. (9 
 Sick.) 658 r Rev'g S. C, 59 Barb. 549. 
 
 217. Want of consideration. A writing 
 under seal imports a consideration, and to make 
 evidence of a want of consideration admissible, 
 in an action thereon, the defendant must spe- 
 cially aver it. A general denial is not sufficient 
 to authorize such proof. Ct. App., 1874, Dubois 
 V. Hermance, 56 N. Y. (11 Sick.) 673. 
 
 218. 'Warranty, breach of. A breach of 
 warranty, to avail as a defense to an action on 
 a policy of insurance, must be pleaded. Sup. 
 Ct., 1875, Boos V. Waiid Mut. L. Ins. Co., 4 Hun, 
 133. 
 
 219. In an action upon an insurance policy the 
 company cannot avail itself of the defense that 
 representations in the application constitute a 
 warranty, by a breach of which the policy is 
 avoided, unless it sets up such defense in its 
 answer. Even though such application is proved 
 on the trial, the court cannot disregard the 
 defect of the pleading, or consider it amended 
 to conform to the proofs. Sup. Ct., 1872, Weed 
 V. Schenectady Ins. Co., 7 Laus. 452. 
 
 220. Where such policy provides that an 
 application or survey, if referred to therein, 
 shall be 'considered a part of the agreement and 
 a warranty, but does not refer to the applica- 
 tion, an allegation in the complaint that the 
 agreement for insurance was founded on the 
 application, made for the purpose . of procuring 
 a reformation of the policy in one particular in 
 which it differed from the application, on the 
 ground of mistake, does not necessaril}- make 
 such application a part of the policy as to other 
 matters. lb. 
 
 e. Sham and frivolous answers. 
 
 221. In general. "Where several separate 
 and distinct defences are set up in an answer, 
 judgment can be ordered for frivolous pleading 
 only when the whole answer is manifestly bad ; 
 and not where a part of the defenses are frivo- 
 lous and others good. Ct. App., 1873, Strong v. 
 Sproul, 53 N. Y. (8 Sick.) 497; Eev'g S. C., 4 
 Daly, 326. 
 
 222. Appropriation esJiausted. An an- 
 swer by the city of New York to a complaint on 
 contract for a claim for gas used by the depart- 
 ment of parks, which simply alleges that the 
 appropriation was exhausted, and that the claim 
 had been incurred, if at all, by that department 
 in excess of the amount appropriated, — Held, 
 frivolous, because it is in the alternative, and 
 because it does not state that there was no 
 appropriation in the treasury when the contract 
 was made, which is the only defense allowed by 
 law. Sup. Ct. Chambers, 1875, N. Y. Mutual Gas 
 Light Co. V. Mayor, etc. of New York, 49 How. 227. 
 
 223. Attachment against third party. In 
 an action by the consignor of goods to recover 
 their proceeds from the defendant to whom they 
 were consigned for sale, an answer that the 
 merchandise and the proceeds thereof in the 
 defendant's hands had been levied on by virtue 
 of an attachment against a third party, and the 
 proceeds paid to the sheriff on the attachment 
 after notice to the plaintiff of the levy, with an 
 averment of title in such third party, is frivo- 
 lous, and should be stricken out on motion. N. 
 Y. C. P., 1869, Barnard v. Kobbe, 3 Daly, 35. 
 
 224. A bailee cannot, in general, dispute the 
 title of his bailor, or set up a better title in a 
 third person, and the facts stated fail to bring 
 the case within the exceptions to this rule. The 
 
558 
 
 PLEADING. 
 
 property was not taken by due process of law, 
 or by title paramount, in such sense as to exon- 
 erate the bailee. lb. 
 
 225. A counterclaim is not liable to be 
 stricken out on motion, either as frivolous or as 
 irrelevant. If defective, the remedy is by de- 
 murrer, or by motion, under sec. 160 of the Code, 
 to make it more definite ajid certain. Ct. App., 
 1872, Fettretch v. McKay, 11 Abb. N. S. 453 ; 
 S. C, 47N. Y. (2 Sick.) 426. 
 
 226. General denied. A general denial under 
 the Code, being a substitute for the general issue 
 under the old practice, cannot, when properly 
 verified by the defendant, be stricken out on 
 motion as sham. Ct. App., 1871, Wayland v. 
 Tysen, 45 N. Y. (6 Hand,) 281 ; Rev'g S. C, 9 
 Abb. H. S. 79. 
 
 227. The rule is the same as to a general denial 
 of several allegations of the complaint, the rest 
 not being controverted ; and, whether the com- 
 plaint sets out a claim formerly cognizable by a 
 court of law or one entertained only in a court 
 of equity. Ct. App., 1871, Thompson v. Erie 
 Railway Co., 45 N. Y. (6 Hand,) 468 ; Newman v. 
 Board of Supervisors of Livingston Co., 45 N. Y. 
 (6 Hand,) 676. 
 
 228. An answer consisting of a general denial 
 cannot be stricken out as sham. Sup. Ct., 1873, 
 Clajlin V. Jaroslauski, 64 Barb. 463. 
 
 229. An answer to an action on a promissory 
 note alleged to have been made by the defend- 
 ants, as partners, payable to the order of one of 
 them, and by him indorsed to the plaintiffs, which 
 alleges in substance that the note was given, 
 not for the indebtedness of the firm, but for that 
 of the individual payee, and that plaintiffs knew 
 that fact, practically denies and puts in issue 
 the promise alleged in the complaint, though it 
 sets up no substantive defense. lb. 
 
 230. Denial of default. An answer in an 
 action to foreclose a mortgage for non-payment 
 of interest, which denies that the defendants 
 were " in defaiilt in the payment of $280, &c., 
 which became due and payable " at a specified 
 time, but does not aver the payment of the in- 
 terest or deny that the plaintiff was entitled to 
 the amount claimed to be due, nor put in issue 
 any material fact alleged, is frivolous. Sup. Ct., 
 1874, Excelsior Savings Bank v. Campbell, 48 How. 
 347 ; S. C, 2 Hun, 875. 
 
 231. — of knovrledge. An answer denying 
 knowledge or information sufficient to form a 
 belief as to whether plaintiffs,^ who sue in a 
 corporate name, are a corporation, may be 
 stricken out as sham on motion, where the 
 moving papers establish their incorporation, and 
 the defendants in response thereto do not show 
 any ground for question of that fact. N. Y. C. 
 P., Sp. T., 1870, Commonwealth Bank of Phila- 
 delphia V. Pryor, 11 Abb. N. S. 227. 
 
 232. Defenses set up by the acceptors of a 
 draft, drawn by a person in his individual name : 
 1st, that Such drawer had fraudulently repre- 
 sented to them that he was treasurer of a certain 
 corporation, and that the draft was accepted as 
 a draft of such corporation, and that plaintiffs 
 knew that it could only be drawn by him as 
 such treasurer ; and, 2d, that it was accepted 
 in consideration of goods agreed to be sold and 
 delivered by the corporation to the acceptors 
 before the maturity of the draft, which goods 
 had not been so sold and delivered, and that 
 plaintiffs had knowledge of such facts when 
 the draft was indorsed to them, should both be 
 etricken out as frivolous. lb. 
 
 283. An answer by acceptors of a bill of ex- 
 change, denying any knowledge or belief wheth- 
 
 er the bill was duly transferred to the plaintiffs, 
 or whe ther or not they are bona fide holders there- 
 of, may be stricken out, on motion, as sham and 
 false, where the plaintiffs produce the draft, with 
 affidavits showing that it was discounted by them 
 before maturity, which are not met by evidence 
 on the part of the defendant. lb. 
 
 234. An answer to a complaint for libel, which 
 denies that the article complained of was -pub- 
 lished with the knowledge, consent, assent, or 
 permission of defendant, and also that any person 
 employed by him had any right or authority from 
 him to publish the same, is not frivolous. Ct. 
 App., 1873, Samuels v. Evening Mail Association, 
 52 N. Y. (7 Sick.) 625. 
 
 236. — of knowledge or intent. An answer 
 to a complaint for infringement of a trade mark, 
 which denies knowledge of plaintiff's ownership 
 of the trade mark and all intention to do wrong, 
 and avers that defendant has made but a single 
 sale of the simulated article, and that to the 
 plaintiff or his agent, is not frivolous; those 
 allegations having an important bearing upon 
 the question of damages. N. Y. Supr. Ct., Sp.T., 
 1871, Faber v. D'Utassey, 11 Abb. N. S. 399. 
 
 236. — of request. An answer to a com- 
 plaint for services performed at the defendant's 
 request in printing, advertising, &c., which de- 
 nies that the defendant requested or employed 
 the plaintiff to do the work specified in the com- 
 plaint, cannot be stricken out as frivolous. Sup. 
 Ct., 1875, Dinsmore v. Mayor, etc. of New York, 
 4 Hun, 643. 
 
 237. Non-conformity to sample. In an 
 action for the price of goods sold, an answer that 
 the sale was by sample, and that a portion of 
 the goods delivered did not correspond with 
 sample, held frivolous. N. Y. Supr. Ct., 1870, 
 Youngs v. Kent, 2 Sweeny, 248 ; Rev'd on another 
 point,- 46 N. Y. (1 Sick.) 672. 
 
 238. Where such an answer, however, also 
 puts in issue material allegations of the com- 
 plaint, although it does not appear to have been 
 the design of the pleader so to do, the issues so 
 presented cannot be disregarded and judgment 
 rendered as for a frivolous answer. S. C, 46 
 N. Y. (1 Sick.) 672. 
 
 239. Nonjoinder. In an action against the 
 trustees of a manufacturing company. organized 
 under the general act (3 Edm. Stats. 735), for 
 neglect to file the annual report as therein 
 required, a defense that another person not 
 named as a party was also a trustee during the 
 whole period named in the complaint, and 
 should be joined, is frivolous, unless he is 
 shown to be living. It is also frivolous, be- 
 cause the action is ex delicto, and not upon 
 contract, and he is not a necessary party. N. Y., 
 C. P., 1872, Strong v. Sproul, 4 Daly, 326 ; Ques- 
 tioned, S. C, S3 if. Y. (8 Sick.) 497. 
 
 240. On information and belief. Matter 
 stated in an answer on information and belief 
 may properly be stricken out as false on motion, 
 where the plaintiff denies it positively by affida- 
 vit, and the defendant in support merely alleges 
 facts and circumstances which, if proved, would 
 not be sufficient to sustain a finding that the alle- 
 gations of the answer were true. Com. App., 
 1871, Kay V. Whittaker, 44 N. Y. (6 Hand,) 565. 
 
 241. Usury. An answer in a foreclosure ac- 
 tion, setting up usury between co-defendants, 
 but not connecting it with the plaintiff or his 
 claim, is frivolous, and may be stricken out on 
 motion. lb. 
 
 242. Where a complaint in foreclosure alleges 
 that the bond provides for the whole "principal 
 becoming due at the option of the holder in de- 
 
PLEADING. 
 
 559 
 
 fault of paying the interest, and that the mort- 
 gage contains the same condition, an answer 
 that such condition is not contained in the " bond 
 and mortgage " is not a denial that it is a con- 
 dition of the bond, and may be stricken out as 
 frivolous. lb-. 
 
 248. An answer by a subsequent incum- 
 brancer, which denies the interest alleged by the 
 complaint to be in him, but also shows that his 
 interest, whatever it be, is subsequent to tlie 
 mortgage, presents no defense, and may likewise 
 be stricken out as frivolous. lb. 
 
 241. Judgment for frivolousness. To 
 justify a judgment for the plaintiff on account 
 of the frivolousness of the answer, the point 
 presented should be so clear as to require no 
 argument. Sup. Ct. Sp. T., 1874, Griffin v. Todd, 
 48 How. 15. 
 
 246. In a case where the plaintiff complains 
 for goods sold and delivered on a credit which is 
 alleged to have been obtained by fraud, an an- 
 swer which not only denies the cause of action 
 as alleged, but specially puts in issue the fraud, 
 cannot be adjudged frivolous, the question 
 whether the plaintiff can recover for the goods 
 sold under such complaint without proving the 
 fraud being a disputable and a debatable one. 
 lb. 
 
 246. The court has no power to order judg- 
 ment on a whole answer as frivolous where part 
 is held good ; but where the plaintiff, in his no- 
 tice of motion, also asks for other relief, the part 
 not good may, if it is irrelevant, be stricken out 
 as such, under sec. 152 of the Code. Ct. App., 
 1871, Thompson v. Erie Railway Company, 45 N. 
 Y. (6 Hand,) 468. 
 
 in. The eeplt. 
 
 247. In divorce case. An answer, in an 
 action for divorce on the ground of adultery, 
 which sets up countercharges of adultery 
 against the plaintiff, and asks for a divorce in 
 favor of the defendant, must be regarded as set- 
 ting up a counterclaim, to which a reply must 
 be interposed in order to raise an issue on such 
 charges. N. Y. C.P., Sp. T., 1811, Leslie y.Uslie, 
 11 Abb. N. S. 311. 
 
 248. A reply interposed to the original an- 
 swer is sufficient as a reply to an amended 
 answer, where that does not set up any new issu- 
 able facts, but merely adds matter that needs 
 no reply. lb. 
 
 249. Flea of release. No reply is necessary 
 to an answer setting up a release of the debt 
 sued on, that being new matter of defense and 
 not a counterclaim, but the plaintiff may avoid it 
 by proof of fraud in obtaining it, or of any other 
 matter in denial or avoidance. Sup. Ct., 1875, 
 Dambman v. Schulting, 4 Hun, 50. 
 
 260. Statute of limitations. Where a 
 counterclaim constitutes a cause of action 
 against the plaintiff, the lapse of time is no bar 
 to it unless pleaded by reply. Sup. Ct., 1873, 
 Williams V. Willis, 15 Abb. N. S. 11. 
 
 261. Where, in such a case, the reply fails to 
 set up the statute, an amendment for that pur- 
 pose cannot be allowed on appeal, so as to sus- 
 tain a judgment for the plaintiff. lb. 
 
 252. A reply required to be made to an an- 
 swer of the statute of Umitations, should be 
 definite and explicit, and apprize the defendant 
 of the issue to be made, whether of denial or 
 avoidance, by showing that the action was com- 
 menced within the time limited by law, or set- 
 ting up disabilities by which its operation may 
 have been suspended. One made upon informa- 
 
 tion and belief, which merely denies that the 
 action was not commenced within six years, is 
 insufficient. N. Y. C. P., Sp. T., 1871, Jarvis y. 
 Pike, 11 Abb. N. S. 398. 
 
 253. Sufficiency of. Where an answer to a 
 complaint for the foreclosure of a purchase- 
 money mortgage set up as a counterclaim, the 
 existence of incumbrances on the property, and 
 fraudulent representations inducing the pur- 
 chase, a reply denying the existence of one of 
 the incumbrances, and also denying the fraudu- 
 lent representations, — Held, not demurrable for 
 insufficiency. Irrelevant matter in such reply 
 can be stricken out on motion, hut cannot be 
 reached by demurrer. N. Y. Supr. Ct., 1874, Lud- 
 dington v. Slauson, 38 N. Y. Supr. (6 J. & Sp.) 81. 
 
 IV. The dbmukeek. 
 
 264. Admission by. A demurrer admits 
 all the facts stated in a pleading which are ma- 
 terial and well pleaded, and only those. It is 
 only a technical admission, not a confession. 
 Conclusipns of law are never admitted by demur- 
 rer. N. Y. Supr. Ct., Sp. T., 1871, Groesbeeck v. 
 Dunscomb, 41 How. 302. 
 
 255. Defect of parties. A complaint which 
 shows the existence of a corporation, and that 
 such corporation is vitally interested in the mat- 
 ters in issue, for the protection of its property 
 .which is sought to be placed in the hands of a 
 receiver, is demurrable for defect of parties if 
 the corporation is not made a party. lb. 
 
 256. A defect of parties, apparent on the fact 
 of the complaint, must be presented by demur- 
 rer or it is waived. Sup. Ct., 1875, Zimmerman 
 V. Schoenfeldt, 3 Hun, 692. 
 
 257. A complaint upon a bond running to the 
 heirs of an estate, which alleges, in the present 
 tense, that there are eight and only eight heirs, 
 the plaintiff suing as one of such heirs to re- 
 cover his share of the amount of tlie bond, in 
 effect alleges that the other seven are living, and 
 the defect of parties, if any there be, appears on 
 the face of the complaint, and -must be taken 
 advantage of by demurrer and not by answer. 
 Sup. Ct., 1873, Hees v. Nellis, 65 Barb. 440. 
 
 268. A misjoinder of parties plaintiff is not 
 a ground of demurrer. Ct. App., 1873, People ex 
 ret Lard v. Crooks, 63 N. Y. (8 Sick.) 648. 
 
 259. It seems that a demurrer will lie for the 
 misjoinder as plaintiffs of several persons having 
 distinct interests in separate parcels of land in- 
 eluded in one lease, in an action on the cove- 
 nants of such lease. N. Y. Supr. Ct., 1874, Dudley 
 V. Grissler, 37 N. Y. Supr. (5 J. & Sp.) 412. 
 
 260. A complaint by a plaintiff who sues " in 
 his own behalf, and in behalf of divers others 
 and numerous persons interested in the questions 
 in the complaint presented by the plaintiff," to 
 restrain the collection of an assessment against 
 their several lots, is demurrable for mis-joinder 
 of parties. Sup. Ct. Sp. T., 1868, Thurston v. 
 City of Elmira, 10 Abb. N. S. 119. 
 
 261. A complaint which sets out in a single, 
 count a good cause of action against one defend- 
 ant as maker, and one against another defendant 
 as guarantor, of a promissory note, — Held, bad 
 on separate demurrers by each defendant. Sup. 
 Ct., 1876, Barton v. Speis, 5 Hun, 60. 
 
 262. Insufficiency. An answer, however 
 defective it may he, is not subject to demurrer, 
 if the pleading it assumes to answer is radically 
 insufficient to call for any answer whatever. N. 
 Y, C. P., Sp. T., 1872, Allen v. Malcolm, 12 Abb. 
 N. S. 335. 
 
 263. An answer, which, if conceded to be 
 
560 
 
 PLEADING. 
 
 true, would not entitle the defendant to judg- 
 ment because of the omission to plead other 
 facts necessary to be proved by him, is defective, 
 and will be held bad on demurrer. Sup. Ct., 
 1871, Nicoll V. Fash, 59 Barb. 275. 
 
 264. Where several matters of defense are 
 stated separately and numbered in an answer, 
 the defendant cannot on demurrer to one sub- 
 division of the answer, claim that it is only part 
 of a defense and merely introductory to another 
 subdivision thereof. lb. 
 
 265. Although an answer in an action for 
 fraud, which first denies the fraud, and then sets 
 up facts which tend to prove the absence of an 
 intent to defraud, is defective and ought on mo- 
 tion to be stricken out, yet, a demurrer to it, on 
 the ground that it does not state a defense, should 
 be overruled. Sup. Ct., 1874, Van Alstyne v. 
 Norton, 1 Hun, 587. 
 
 266. A demurrer will not lie to a counterclaim 
 on the ground " that it does not state facts suf- 
 ficient to constitute a defense," because it is not 
 necessary that a counterclaim should contain 
 facts sufficient to make a defense ; but where 
 the defendant attempts to make one set of al- 
 legations serve the purpose of both a defense and 
 a counterclaim, the court, in overruling the de- 
 murrer to the counterclaim, may properly order 
 that it be without prejudice to the right of 
 plaintiff that the defenses in the answer he made 
 more definite and certain. N. T. Supr. Ct., 1875, 
 Armour v. Leslie, 39 N. Y. Supr. (7 J. & Sp.) 353. 
 
 267. A general demurrer to a complaint, for 
 insufficiency, where one of the counts sets forth 
 
 Mood cause of action, is bad. Ct. App., 1872, 
 le V. Omaha National Bank, 49 N. Y. (4 Sick.) 
 626 ; Aff'g S. C, 83 N. Y. Supr. (1 J. & Sp.) 40. 
 
 268. If the allegations of a complaint are not 
 as definite and certain as they might or should 
 have been, the remedy is not by demurrer, but 
 by application under sec. 160 of the Code, that 
 they be made definite and certain by amend- 
 ment, lb. 
 
 269. A demurrer to a complaint for want of 
 certain allegations, should be sustained if such 
 allegations are material, although It had origin- 
 ally contained them and they had been stricken 
 out as immaterial on motion of the defendant ; 
 but, in such a case, the plaintiff should be allow- 
 ed to amend his complaint, and the costs should 
 abide the event. Sup. Ct., 1875, Grout v. Cooper, 
 6 How. 423. 
 
 270. Jurat. The jurat to the verification of 
 a complaint is no part of the pleading; and the 
 fact that such jurat to a complaint on a promis- 
 sory note is dated before the note became due 
 does not make the complaint demurrable as not 
 stating a cause of action. The proper remedy 
 is by motion. Sup. Ct., 1875, State BankofOlean 
 V. Shaw, 5 Hun, 114. 
 
 271. Jurisdiction. Defendants sued in a 
 county court must take the objection that they 
 are not residents of the county, by answer or 
 demurrer, and if they fail to do so, but join issue 
 and go to trial as if residents, they cannot raise 
 that objection after judgment. Sup. Ct., 1874, 
 Burling v. Freeman, 2 Hun, 661. 
 
 272.' Want of legal capacity in the plain- 
 tiff to sue must be taken advantage of by de- 
 murrer or answer, otherwise it is waived. Sup. 
 Ct. 1875, Town of Pierrepont y.Lovelass, 4 Hun, 
 
 273 Want of legal capacity to sue is not 
 good 'ground for a demurrer to a complamt, un- 
 less it affirmatively appears on the face of the 
 complaint. If it merely fails to show the facts 
 Xh confer capacity to.sue, the objection must 
 
 be taken by answer. Sup. Ct., 1872, Barclay v. 
 Quicksilver Mining Co., 6 Lans. 25. 
 
 274. A complaint by a sequestrator of the 
 estate of a Pennsylvania corporation, which 
 alleges that he is, under the laws-of that State, 
 the owner of the property sought to be recov- 
 ered from a defendant in this State, to whom 
 it is alleged to have been fraudulently trans- 
 ferred, is not demurrable for want of legal ca- 
 pacity to sue. lb. 
 
 275. By one or more defendants. In an 
 action against several defendants, the fact that 
 one or more of them have answered will not 
 affect the decision of a demurrer by the other 
 defendants, but it will be sustained U the com- 
 pliiint fails to show any connection between the 
 facts therein alleged and the demurring defend- 
 ants. N. Y. Sup?. Ct., 1875, Webb v. Vanderbilt, 
 49 N. Y. Supr. (7 J. & Sp.) 4. 
 
 276. Specification of grounds. A de- 
 murrer must distinctly specify the grounds of 
 objection, and a ground not so specified will be 
 disregarded. So held, in case of an objection to 
 the legal capacity of the plaintiff to sue, where 
 the demurrer was simply that the complaint did 
 not state facts sufficient to constitute a cause of 
 action. Ct., App., 1873, People ex ret. Lord r. 
 Crooks, 53 N. Y. (8 Sick.) 648. 
 
 V. Motions to coesect plbadinos. 
 
 277. To compel plaintiff to elect. Where 
 the complaint states facts constituting a cause 
 of action either on contract or for a conversion, 
 and the summons is for relief, the defendant's 
 remedy is by motion either to strike out, or to 
 make more certain, or to compel the plaintiff to 
 elect in regard to the form of action ; and if he 
 neglects that remedy, he cannot prevent a recov 
 ery for the cause of action which is sustained 
 by the proofs. N. Y. Supr. Ct, 1874, Ladd v. 
 Arkell, 37 N. Y. Supr. (5 J. & Sp.) 35. 
 
 278. To make definite. . tJpon a motion to 
 make a pleading more definite and certain, under 
 sec. 160 of the Code, the moving papers should 
 point out wherein the alleged defect consists. 
 Sup. Ct. Sp. T., 1872, Eathbun r. Markham, 43 
 How. 271. 
 
 279. Where a complaint by a wife for a limit- 
 ed divorce charges that the defendant, "at 
 various times during their said marriage, has, 
 by reason of improper and licentious conduct on 
 his part, become affected and diseased" with 
 venereal diseases, and has "at various times 
 communicated said diseases to plaintiff," &c., the 
 court will not require it to be made more defi- 
 nite by stating at what times and places the 
 defendant contracted the diseases mentioned, 
 but, at most, will only require the times and 
 places those diseases were communicated to be 
 set forth. N. Y. Supr. Ct., 1871, Klein v. Klem, 
 42 How. 166 ; S. C, 11 Abb. N. S. 450 ; 34 N. 
 Y. Supr. (2 J. & Sp.) 48. ,.,,.,. 
 
 280. Where the devisee of certain lotsinclud- 
 ed with others in a lease attempts to join with 
 the executors of the deceased lessor in an action 
 against the lessees for the breach of a covenant 
 to pay any additional taxes that maybe assessed 
 upon the premises by reason of additions or 
 improvements, the defendants have a right to 
 have the complaint made definite and certain as 
 to the portions of the premises on which the 
 alleged additions and improvements have been 
 made and the amount of tax imposed by reason 
 thereof, if stated in general terms merely. N. 
 Y. Supr. Ct., 1874, Dudley r. Grissler, 37 N. Y. 
 Supr. (5 J. & Sp.) 412. 
 
PLEADING. 
 
 561 
 
 281. If an answer containing a denial of the 
 allegations of the complaint except as therein- 
 after stated is rendered indefinite, uncertain or 
 complicated by the matter stated, the remedy is 
 hy motion to make more definite, and not by 
 exclusion of evidence on the trial. Ct. App., 
 1872, Greenfield v. Mass. Mut. Life Ins. Co., 47 
 N. Y. (2 Sick.) 430. 
 
 282. To state separately. If facts consti- 
 tuting a justification and those constituting 
 mitigation are so blended in an answer in libel 
 that it would be difficult to determine which or 
 how much is applicable to each, the pleader will 
 be required, on motion, to state separately tlie 
 facts on wliich he relies for each of those pur- 
 poses and the purpose for which they are stated. 
 N. Y. Supr. Ct. Sp. T., 1872, Fink v. Justh, 14 
 Abb. N. S. 107. 
 
 283. To strike out. Upon a motion to strike 
 out a certain portion of a complaint as irrele- 
 vant, and to make the same more definite and 
 certain so as to show whether the defendant 
 was sued as receiver or individually, the court 
 has no power to order that the defendant shall 
 be named as " receiver " in the action, nor 
 sliould it strike out allegations wliich are perti- 
 nent and material to an action against tlie de- 
 fendant individually, when the complaint con- 
 tains sufficient to entitle the plaintiff to try the 
 question of the defendant's personal liability. 
 N. Y. Supr. Ct., 1874, .Jones v. Norwood, 87 N. Y. 
 Supr. (5 J. & Sp.) 276. 
 
 284. In a complaint against a trustee of a 
 manufacturing corporation, seeking to charge 
 him with a debt of the company, on the ground 
 of the failure or neglect of the company to file 
 tlieir annual report as required by law, allega- 
 tions that the plaintiff has recovered judgment 
 against the company for said debt, and issued 
 execution thereon wliich has been returned un- 
 satisfied, are irrelevant and will be stricken out 
 on motion. Sup. Ct. Sp. T., 1871, Weymouth 
 V. Dimock, 41 How. 92. 
 
 285. In a complaint by a wife against her 
 liusband for a divorce from bed and board, on 
 tlie ground of cruel and inhuman treatment, 
 allegations of scandalous, indecent and licen- 
 tious acts committed with and on certain women 
 other than plaintiff, unaccompanied by aver- 
 ments that such acts and conduct either led 
 plaintiff to apprehend personal injury to her- 
 self, or gave her pain, or affected her body, 
 mind, health or feelings, may be stricken out as 
 immaterial. N. Y. Supr. Ct., 1871, Klein v. 
 Klein, 42 How. 166 ; S. C, 11 Abb. N. S. 450 ; 
 34 N. Y. Supr. (2 J. & Sp.) 48. 
 
 286. In an action by a husband to annul his 
 marriage, on the ground that he had a former 
 wife living at tlie time of the marriage with de- 
 fendant, and at the time of the commencement 
 of the action, allegations in the answer that be- 
 
 -fore marrying defendant the plaintiff had pro- 
 cured a decree of divorce from a second wife 
 adjudging him at liberty to marry again, and 
 she had thereupon in good faith married him, 
 being induced by his fraud to believe that' he 
 was at liberty to marry, are immaterial and 
 may be stricken out. Sup. Ct., 1873, Anony- 
 mous, 15 Abb. N. S. 311. 
 
 287. But an allegation that defendant has no 
 knowledge sufficient to form a belief as to 
 whether the first, wife was living at the com- 
 mencement of the action, is a denial of a mate- 
 rial allegation. lb. 
 
 286. An allegation in the complaint that the 
 defendant had knowledge of the prior mar?iage 
 at the time of her marriage with lum, is material 
 36 
 
 upon the question of costs, and perhaps on that 
 of the legitimacy of the children, and of ali- 
 mony ; and it may properly be denied in the 
 answer. lb. 
 
 289. In an action by preferred stockholders 
 against a corporation, to recover a dividend 
 claimed to be due, the complaint alleging a di- 
 vision of the funds, an answer alleging that the 
 plaintiffs had not applied to any of the directors 
 for an accounting, may be stricken out as irrele- 
 vant ; also an answer that the interests of the 
 plaintiffs were adverse to those of the common 
 stockholders, who should be joined as parties, 
 and matter pointing out the persons who, if 
 any, have diverted the funds of the corporation. 
 Ct. App., 1871, Thompson v. Erie Railway Co., 
 45 N.Y. (6 Hand,) 468. 
 
 290. Averments in a complaint for the purpose 
 of restraining the defendant from infringing the 
 common-law rights of the plaintiff in a picture, 
 by the sale of lithographic reproductions thereof, 
 which set out the proceedings in a prior suit by 
 the same plaintiff against another party for a 
 like infringement, terminating successfully for 
 the plaintiff, show that he has not dedicated or 
 surrendered his rights to the public, and are not, 
 therefore, irrelevant or redundant. Sup. Ct., 
 Sp. T., 1872, Oertel v. Jacoby, 42 How. 218. 
 
 291. Although an answer, in an action of tort, 
 setting up a counterclaim, does not contain any 
 sufficient allegation showing that it arose out of 
 the transactions set forth in the complaint, yet 
 its sufficiency cannot be examined on a motion 
 to strike out, either at the Special Term or on 
 appeal. N. Y. Supr. Ct., 1876, Thomas v. Loaners 
 Bank ofN. Y., 38 N. Y. Supr. (6 J. & Sp.) 466. 
 
 292. A counterclaim not being a defense, a 
 reply to it cannot be demurred to, although it 
 may contain new matter, and it seems a motion 
 to strike it out may be entertained. lb. 
 
 293. That the reply is a departure from the 
 complaint is not good ground for striking it out, 
 where the counterclaim is not connected with 
 the plaintiff's cause of action. lb. 
 
 294. To strike out as sham. A verified 
 answer, which contains a general or specific 
 denial of each material allegation of the com- 
 plaint controverted or not therein admitted by 
 him, cannot be stricken out as sham. N. Y. 
 Supr. Ct., \9ni. Fellows y. Midler, 48 How. 82; 
 S. C, 38 N. Y. Supr. (6 J. & Sp.) 137. 
 
 295. Where such answer sets up an affirmative 
 defense which is clearly false, that may be 
 striken out as sham. lb. 
 
 296. A demurrer cannot be stricken out as 
 sham, under sec. 162 of the Code, as that applies 
 only to defenses. If frivolous, the proper remedy 
 is by motion for judgment under sec. 247. N. 
 Y. Supr. Ct. Sp. T., 1873, Kain v. Dickel, 46 
 How. 208. 
 
 VI. Supplemental pleadihos. 
 
 297. In general. A supplemental complaint 
 must be consistent with, and in aid of, the case 
 made by the original complaint. A new and 
 substantive cause of action cannot be set up, by 
 such a complaint, as a ground of recovery, espe- 
 cially, one which the plaintiff has acquired since 
 the commencement of the action. Sup. Ct., 1874, 
 Tiffany v. Bouierman, 2 Hun, 648. 
 
 298. A plaintiff cannot, by means of a sup- 
 plemental complaint, change his action, ih its 
 entire scope and purpose, by bringing in and 
 substituting a new controversy or cause of ac- 
 tion, springing out of a transaction occurring 
 since the commencement of the action, upon 
 
562 
 
 PLEADING. 
 
 which a judgment can be rendered without ref- 
 erence to the original complaint. N. T. Supr. 
 Ct., 1874, Muller v. Earle, 37 N. Y. Supr. (5 J. & 
 Sp.) 388. 
 
 299. Where a receiTer, appointed in supple- 
 mentary proceedings, brings an action on behalf 
 of the judgment creditor to set aside, as fraud- 
 ulent, a conveyance made by the judgment 
 debtor, and is afterward appointed receiver in 
 supplementary proceedings instituted by other 
 judgment creditors, of the same party, he can- 
 not by supplemental complaint, include these 
 latter clairiis in the original action, but must 
 bring a new suit. lif. Y. C. P., 1871, Bostwick v. 
 Menck, 4 Daly, 68. 
 
 300. To revive action. An application to 
 the court is necessary, under sec. 121 of the 
 Code, in all cases where the representatives of a 
 deceased party desire to continue the action, 
 and a supplemental complaint for that purpose 
 cannot be filed without first obtaining leave 
 from the court ; or, if so filed, it may be stricken 
 out on motion. N. Y. Supr. Ct., 1874, Stewart 
 V. James, 38 N. Y. Supr. (6 J. & Sp.) 366 ; Eev'g 
 S. C, sub nom, Stewart v. Powers, id. 56. 
 
 301. Answer. A supplemental pleading can 
 be allowed only by the Court on motion ; and it 
 should not be allowed on the trial. Consequently, 
 sec. 272 of the Code, conferring upon referees 
 tlie same power as to amendments as the court 
 possesses upon the trial, does not authorize a 
 referee to allow a supplemental answer. N. Y. 
 Supr. Ct., 1871, Lyon v. Isett, 42 How. 155 ; S. 
 C, 11 Abb. N. S. 353 ; 34 N. Y. Supr. (2 J. & 
 Sp.) 41. 
 
 302. Such a pleading will always be allowed 
 wlien a case is made within the terms of sec. 177 
 of the Code as amended in 1866, although its 
 sufficiency may be in doubt. Thus, a discharge 
 in bankruptcy obtained since issue joined, 
 may be pleaded by supplemental answer to a 
 complaint for the conversion of stock, which 
 also contains sufficient averments to enable the 
 plaintiff to fall back and recover as upon con- 
 tract, lb. 
 
 303. The right of a defendant to allege new 
 matter by supplemegtal pleading is not absolute, 
 but is made to depend upon the leave of the 
 court in the exercise of a legal discretion. Ct. 
 App., 1871, Medburu v. Swan, 46 N. Y. (1 Sick.) 
 200. 
 
 304. A delay of 15 months in applying for 
 leave to plead an insolvent discharge, is good 
 ground for refusing the application. lb. 
 
 305. The right to set up, by supplemental 
 answer, matter of defense which has occurred 
 or come to the knowledge of the defendant sub- 
 sequently to putting in his original answer, is 
 not absolute, but it may be refused if the new 
 defense, although strictly legal, is inequitable, 
 or if the application is not made with reason- 
 able diligence. Ct. App., 1874, Holyoke v. Adams, 
 59 N. YJ14 Sick.) 233 ; Aff'g S. C., 1 Hun, 228. 
 
 306. Where the plaintiffs had obtained a lien 
 by attachment upon the property of their debt- 
 ors more than four months before commence- 
 ment of proceedings in bankruptcy against 
 such debtors, and the property' had been re- 
 leased on the giving of an undertaking, — Held, 
 that it would work injustice to allow defendants 
 to plead their discharge in bankruptcy by sup- 
 plemental answer, and the court might properly 
 exercise its discretion by refusing leave to put 
 in such answer. lb. 
 
 307. Alteration. In an action by a sub-con- 
 tractor against the owner and contractor to fore- 
 close a mechanic's lien, where the contractor 
 
 answers, setting up his lien and seeking to en- 
 force it, and upon the trial he discovers that the 
 written contract between him and the owner has 
 been altered to his prejudice, while in possession 
 of such owner, he may properly be permitted to 
 set up those facts by supplemental answer, ask- 
 ing to recover on a quantum meruit for the whole 
 work done. N. Y. C. P., Sp. T., 1873, Gambling 
 V. Haight, 14 Abb. N. S. 398, n. 
 
 308. Bankruptcy. Where, pending a suit 
 for a debt, the defendant obtained a discharge 
 in bankruptcy, with the knowledge of the plain- 
 tiff, and relying thereon paid no more attention 
 to the suit, but tlie plaintiff nine months after- 
 ward took an inquest and entered judgment 
 against him, — Held, that the judgment was 
 properly set aside, on application made by the 
 defendant when he learned of the judgment, 
 and leave given to file a supplemental answer 
 setting up the discharge. Sup. Ct., 1874, Had- 
 ley V. Boehm, 1 Hun, 804. 
 
 309. A debtor who has been allowed to an- 
 swer, after judgment entered against him by 
 default, the judgment to stand as security, and 
 who afterwards obtains a discharge in bank- 
 ruptcy, ought not to be allowed to set up such 
 discharge by supplemental answer, even with 
 the qualification that it be " without prejudice 
 to any lien the plaintiffs had upon any real 
 estate under and by virtue of their judgment," 
 since the effect of it would be to destroy tlie 
 lien on real estate acquired by the judgment. 
 Sup. Ct., 1874, Barstow v. Hansen, 2 Hun, 383. 
 
 310." Especially, the debtor should not be per- 
 mitted to so plead his discharge nearly five 
 years after it was granted, and after one trial of 
 the action at which he did not attempt to take 
 advantage thereof. lb. 
 
 311. An application for leave to file a supple- 
 mental answer setting up a discharge in bank- 
 ruptcy, obtained pending the action, in a case 
 where an attachment was levied more than four 
 months before the bankruptcy proceedings were 
 commenced, and an undertaking given to obtain 
 a release of the property from the attachment, 
 may properly be denied. By the attachment the 
 plaintiff obtained a vested right, which was not 
 affected by the bankruptcy proceedings, and the 
 undertaking is a substitute for the levy. Sup. 
 Ct., 1874, Holyoke v. Adams, 1 Hun, 223. 
 
 312. Republication of libel. In an action 
 for the publication of a libel in a newspaper 
 owned by defendants, the plaintiff may prop- 
 erly be permitted to file a supplemental com- 
 plaint, setting up the circulation by defend- 
 ants of newspapers containing a republication 
 of the libellous articles, marked so as to call 
 attention thereto, which circulation as to all but 
 one of such newspapers occurred before the com- 
 mencement of the action, but did not become 
 known to the plaintiff until afterward. Sup. 
 Ct, 1875, Corbin v. Knapp, 5 Hun, 197. 
 
 VH CoirSTBUCIION OP PLEASINQS. 
 
 818. Against pleader. Statements in a 
 pleading must he taken as strongly as possible 
 against the party making them. N. Y. Supr. Ct., 
 Sp. T., 1871, Groesbeeck v. Dunscomb, 41 How. 802. 
 
 3M. A complaint which describes property as 
 being in the possession of defendants and their 
 associates, styling them " The Hector, Church- 
 wardens and Vestrymen of Trinity Church," 
 and does not deny that they are entitled to 
 those offices, shows that their possession and 
 acts are those of the corporation ; and if such 
 complaint speaks of the predecessors of the de- 
 
PLEADING. 
 
 563 
 
 fendants, that is equivalent to an admission 
 tliat the defendants have succeeded to the office 
 of such predecessors. lb. 
 
 315. liiberal construction. In construing 
 a pleading for the purpose of determining its 
 effect, a restricted meaning should not be 
 given to the words used, which are clearly sus- 
 ceptible of a more liberal construction, unless 
 the whole pleading shows that they were used 
 in such restricted sense, especially so when a 
 defense on the merits would be thereby ex- 
 cluded. N. Y. Supr. Ct., 1873, Clare v. National 
 City Bank, 14 Abb. N. S. 326 ; S. C, 35 N. Y. 
 Supr. (3 J. & Sp.) 261. 
 
 316. Admissions. A complaint for work 
 and labor, setting forth the items to the amount 
 of $541.90 and claiming a balance due, "after 
 deducting all payments made by the defend- 
 ant," of il75.75, must be construed as an admis- 
 sion that tlie difference, or $366.15, had been 
 paid upon the account stated ; and tlie defend- 
 ant is not obliged, in order to avail himself 
 thereof, to concede the validity of all the items 
 charged. Ct. App., 1871, White v. Smith, 46 N. 
 Y. (1 Sick.) 418 ; Rev'g S. C, 1 Lans. 269. 
 
 317. An admission in an answer, that certain 
 parties mentioned " executed " a deed, is an 
 admission that tlie deed was signed, sealed and 
 delivered Com. App., 1872, Thorp v. Keokuk 
 Coal Company, 48 N. Y. (3 Sick.) 253 : Aff'g 
 S. C, 47 Barb. 439. 
 
 318. An admission in the answer of a defend- 
 ant, sued as indorser of a promissory note, of 
 the making, indorsement and transfer of the 
 note, does not prove anything more than the 
 law would have presumed from the production 
 of the note, or from pleading it according to the 
 legal effect of the contracts of the maker and 
 indorser respectively ; and does not contravene 
 a denial of consideration, or preclude tlie indor- 
 ser from showing that there was none, but that 
 the indorsement was lent, and that the consider- 
 ation paid was in fact the money of the party 
 to whom the indorsement was lent. Sup. Ct., 
 1874, Powers v. French, 1 Hun, 512. 
 
 319. An admission in an answer to a com- 
 plaint upon a promissory note, that at the time 
 mentioned in the complaint the defendants 
 " made and indorsed a note like that set forth 
 therein," without anything tending to show that 
 it was not the same note sued on, must be con- 
 strued as referring to that note. N. Y. Supr. 
 Ct., 1875, Moody v. Andrews, 39 N. Y. Supr. 
 (7 J. & Sp.) 302. 
 
 320. An answer, in such a case, which states 
 that the plaintiff received the note as collateral 
 security for a loan of money from a person to 
 whom it was entrusted for a specific purpose, 
 and that other parties claim it, but does not 
 allege that he received it with notice of the 
 purpose for which it was entrusted to such 
 person, or of any equities between the parties, 
 or for an antecedent debt, does not put in issue 
 the plaintiff 's allegation that he is the lawful 
 holder of the note, but rather admits that he is 
 so. lb. 
 
 321. An answer, in an action for injuries 
 caused by the negligence of the owners of a 
 building in making repairs and alterations, 
 wiiich admits the defendant's ownership of the 
 building, and " that they caused alterations to be 
 made in and upon the same at the times men- 
 tioned in the complaint," is not to be construed 
 as admitting that the work of the alterations 
 was done under the direct supervision of defend- 
 ants, or by their servants, so as to exclude evi- 
 dence that it was done for defendants under 
 
 contracts, by workmen under the control of and 
 responsible only to the contractors. N. Y. Supr. 
 Ct., 1873, Clare v. Nat. City Bank, 14 Abb. N. 
 S. 326 ; S. C, 35 N. Y. Supr. (3 J. & Sp.) 326. 
 
 322. Where the complaint alleges the sale and 
 delivery of certain goods, the items of which are 
 specified in a bill of particulars annexed, and 
 admits certain payments, an answer which 
 admits that the plaintiff " sold and delivered to 
 the defendant a large quantity of merchandise, 
 and that he paid therefor the several sums "cred- 
 ited in the complaint, puts in issue and requires 
 proof from the plaintiff as to the items of ac- 
 count, the times when the goods were sold and 
 the prices. Ct. App., 1875, Atbro v. Figurea, 60 
 N. Y. (16 Sick.) 630. 
 
 323. Denial as an admission. An answer 
 to a complaint averring a sale and delivery of 
 goods, which "First, denies that plaintiff sold 
 
 and delivered except on conditions hereinafter 
 
 set forth. Second, And for a further defense," 
 alleges certain representations made as an in- 
 ducement to purchase, and a guaranty, but no- 
 where alleges a sale on condition, does not deny 
 the averments of tlie complaint, but in effect 
 admits them. N. Y. Supr. Ct., 1874, Goodwin v. 
 Hirsch, 37 N. Y. Sup. (5 J. & Sp.) 503. 
 
 324. Character of defendants. A com- 
 plaint entitled against the defendants " as execu- 
 tors," which avers an agreement made by them 
 " as executors," whereby they agreed " as 
 executors to pay." etc., and asks judgment 
 against them " as executors," shows that the 
 action is against them in their representative 
 capacitv. Ct. App., 1872, Austin v. Munro, 47 
 N. Y. (2 Sick.) 360. 
 
 325. On contract. Where the summons is 
 for money and the complaint sets forth facts 
 constituting a cause of action on contract, the 
 presence of averments as to false and fraudulent 
 representations does not make the action one 
 ex delicto. Ct. App., 1873, Ledwich v. McKim, 53 
 N. Y. (8 Sick.) 307 ; Aff'g S. C, 35 N. Y. «upr. 
 (3 J. & Sp.) 304. 
 
 326. An allegation in an answer by a carrier 
 to an action for not carrying and delivering ac- 
 cording to contract, that the goods were to be 
 carried under, and in accordance with, the terms 
 of a written and printed contract, a copy of which 
 is annexed to and forms a part of tliis answer, 
 and contains the terms and conditions of the 
 agreement between the parties, is an allegation 
 of fact that the terms and conditions contained 
 in that paper were agreed on between the par- 
 ties ; and a demurrer thereto admits the agree- 
 ment. N. Y. Supr. Ct., 1871, Bishop v. Empire 
 Trans. Co., 83 N. Y. Supr. (1 J. & Sp.) 99. 
 
 327. A complaint, which alleges a joint agree- 
 ment by two defendants to deliver up certain 
 securities upon a specified contingency, the hap- 
 pening of such contingency, a demand for the 
 securities, and that tlie defeiidants wrongfully 
 refused to deliver them up and wrongfully dis- 
 posed of and converted them to their own use, 
 to the great damage of the plaintiff, and prays 
 judgment for the value of the securities with 
 interest, states a cause of action on contract and 
 not in tort. Com. App., 1870, Austin v. Rawdon, 
 44 N. Y. (5 Hand,) 63. 
 
 328. The allegations of a " wrongful refusal " 
 and " wrongful conversion " must be regarded 
 as allegations of a breach of contract and not as 
 averments in trover. lb. 
 
 329. A complaint which alleges the delivery 
 to defendant of certain tickets and drafts in 
 blank, to be filled up and sold by him, for which 
 he agreed to account and pay over the net pro- 
 
564 
 
 PLEADING. 
 
 ceeds, and that he sold some of them and failed, 
 neglected and refused to account for them, and 
 wrongfully converted the moneys arising there- 
 from, and neglected and refused to pay over the 
 same, though often requested so to do, states a 
 cause of action on contract, and the allegation 
 of a wrongful conversion does not convert it to 
 a complaint in tort< Sup. Ct., 1875, Sheahan v. 
 Shanahan, 5 Hun, 461. 
 
 330. Where a complaint alleges facts consti- 
 tuting a cause of action for hreach of contract, 
 hut mingles with the allegations of those facte, 
 others setting up fraudulent statements and rep- 
 resentations by the defendant inducing the 
 plaintiff to enter into the contract, and demands 
 damages resulting therefrom in addition to the 
 sum to which he would be entitled for a breach 
 of the contract, such allegations of fraud are 
 wholly irrelevant and not issuable, and do not 
 change or affect the nature of the action or the 
 remedy therein. Ct. App., 1874, Graves v. Waite, 
 69 N. Y. (14 Sick.) 156. 
 
 331. Such allegations of fraud are only mate- 
 rial as giving a provisional remedy before judg- 
 ment, or affecting the final remedy after judg- 
 ment, lb. 
 
 332. The fact that the summons is for relief in 
 such a case, does not aid in or aSect the interpre- 
 tation of the pleading. lb. 
 
 338. On policy. A complaint which alleges 
 the issue of a policy of life insurance and admits 
 non-payment of the premiums, but sets out a 
 statute of the state in which the company was 
 incorporated, providing that no policy issued by 
 a company chartered thereby shall be forfeited 
 for non-payment of premiums until the expira- 
 tion of a temporary term calculated upon the 
 premiums paid, the age of the party, and assump- 
 tions of mortality, claiming that there became 
 due upon the policy a certain amount by virtue 
 of the provisions of that statute, which the com- 
 pany, after notice of the death, promised to pay, 
 — ffel^, to stfite a cause of action on the policy 
 and not on an account stated. Ct. App., 1872, 
 Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 
 (2 Sick.) 430. 
 
 334. On special contract. A complaint 
 ■vhich, after alleging the employment of the 
 plaintiff and performance of services by him, for 
 a price agreed upon by the defendant, alleges 
 that the services were reasonably worth that 
 sum, is upon the special contract, and not upon 
 a qiiantum meruit. N. Y. Supr. Ct., 1873, Evans 
 V. Kalbfleisch, 36 N. Y. Supr. (4 J. & Sp.) 450. 
 
 335. Denial of protest. A denial of the 
 protest and notice of protest of a domestic note, 
 does not controvert a separate allegation in the 
 complaint of demand and refusal of payment. 
 N. Y. C. F., 1872, Breman v. Lowry, 4 Daly, 253. 
 
 336. Equitable. Where the complaint al- 
 leges facts which go in avoidance of the legal 
 title of the defendants, and claims that, under 
 the agreement and understanding between the 
 parties, the defendants were to hold the title in 
 some kind of quiet trust for the plaintiff 's bene- 
 fit, and afterward to re-convey to him, and those 
 facts are denied by the defendants, it is evident 
 that the plaintiff cannot recover a judgment for 
 the possession of the property until he has 
 established the truth of those facts, and then 
 the appropriate relief will be equitable ; and the 
 action must therefore be deemed of an equitable 
 nature. N. Y. Supr. Ct., 1874, M'Teague v. 
 Coulter, 38 N. Y. Supr. (6 J. & Sp.) 208. 
 
 337. For malfeasance. A complaint which 
 sets out a statute by which the defendant and 
 others were created public officers to audit cer- 
 
 tain claims against a city, which claims were to 
 be paid' on their certificate, and alleges that the 
 defendant had, in pursuance of a conspiracy for 
 that purpose, made a false certificate, upon 
 which false and fictitious claims had been paid, 
 and that the defendant shared in the money thus 
 procured, charges malfeasance in office. Sup. Ct. 
 Sp. T., 1872, People v. Tweed, 13 Abb. N. S. 419. 
 
 338. For tort. An action in which the sum- 
 mons is for relief, and the complainant alleges 
 that the defendant with intent to deceive and 
 defraud the plaintiff by inducing him to receive 
 and accept the defendant's note for money 
 loaned him, falsely and fraudulently represented 
 that he was the owner of certain specified prop- 
 erty, and thereby induced the plaintiff to take 
 such note, and that the same was unpaid, and 
 that such representation was false, and known 
 to be so by the defendant, and was made with 
 intent to deceive and defraud him, is one in tort 
 and not on contract. Sup. Ct, 1875, Peck v. 
 Root, 5 Hun, 547. 
 
 Vin. Amendment ; varianob. 
 
 339. Of course. The time within which the 
 defendant may amend his answer of course is 
 limited by sec. 172 of the Code, to (1) 20 
 days after it is served ; (2) the time for answer- 
 ing it ; (3) 20 days after service of reply, or 
 demurrer thereto. If the answer Is not one 
 which admits of a reply, the time for amending 
 of course is 20 days after service, even though 
 it was served by mail. Sup. Ct. Sp. T., 1872, 
 Toomey v. Andrews, 48 How. 332. 
 
 340. Under sec. 172 of the Code, a plaintiff 
 may, within the time specified therein, amend 
 his complaint of course by setting forth a new 
 cause of action ; and in so doing he is not 
 restricted to a cause of action of the same class 
 as that in the original complaint. Ct. App., 
 1872, Brown v. Leigh, 12 Abb. N. S. 193 ; S. C, 
 49 N. Y. (4 Sick.) 78. 
 
 341. AU the causes of action set forth in the 
 amended complaint must be of the same class, 
 and must be of a class to which the summons is 
 appropriate. lb. 
 
 342. The same rights of amendment exist in 
 actions brought under sec. 449 of the Code, to 
 compel the determination of claims to real prop- 
 erty as in other actions authorized by the Code, 
 lb. 
 
 343. A plaintiff's right to amend his com- 
 plaint of course within 20 days after service of 
 answer is an absolute right, and it is not waived 
 by his proceeding to examine the defendant as a 
 witness after joinder of issue and before trial ; 
 the right to examine being also absolute. N. Y. 
 Supr. Ct., 1874, StilweU v. Kellu, 37 N. Y. Supr. 
 (5 J. & Sp.) 417. 
 
 344. At trial. Where a party, who shows 
 reasonable diligence, for the first time discovers 
 at the trial that the cause of action or defense 
 has been misunderstood, and for that reason im- 
 properly alleged in his pleading, he should be 
 allowed to amend, on special motion, if made 
 without unnecessary delay. Sup. Ct., 1875, 
 Hauck V. Craighead, 4 Hun, 561. 
 
 345 As to character of parties. A com- 
 plaint against executors in their representative 
 capacity cannot on demurrer be converted inta 
 one against them individually. Whether it can 
 by amendment be. converted into an equitable 
 action to reach funds in their hands, or in the 
 alternative for judgment against the defendants 
 
 Sersonally, query f Ct. App., 1872, Austin T. 
 funro, 47 N. Y. (2 Sick.) 860. 
 
PLEADINa. 
 
 565 
 
 84G. Where a consignee of goods to whiohi he 
 had acquired no title at the time they were 
 destroyed while in the hands of a carrier, sued 
 the carrier for their loss, alleging that they be 
 longed to hira when delivered, and it appeared" 
 on the trial tliat he accepted other goods in 
 their place, and paid for those which were 
 destroyed, — Hdd, that such payment operated 
 as an assignment of tlie cause of action, and the 
 court might, in its discretion, allow the plaintiff 
 to amend and claim as "assignee. Ct. App., 1875, 
 O'Neill v. N. Y. Cent. ^ Hud.Riv. R. R. Co., 60 
 N. Y. (16 Sick.) 138. 
 
 347. Inserting facts after suit brought. 
 If, on the f^icts stated in the complaint no cause 
 of action exists against the defendant, and no re- 
 lief can be granted him thereon, facts occurring 
 after suit brought cannot, either by amendment 
 or by supplemental complaint, be made a part 
 of the plaintiff's case, nor will they enable him 
 to maintain his action. N. Y. Supr. Ct, 1874, 
 Muller V. Earle, 87 N. Y. Supr. (6 J. ft^Sp.) 388, 
 
 348. Thus, where money is paid over to one 
 of the defendants after an action has been com- 
 menced to restrain its being paid over, the plain- 
 tiff cannot be permitted by amendment to make 
 liis action. one for money had and receivfl to 
 his use. lb. 
 
 349. — alleging damages. A complaint for 
 false imprisonment, which does not allege special 
 damages, may be amended on the trial, where 
 such damages are proved, by adding the neces- 
 sary allegations, or after judgment it may be 
 considered as so amended. Sup. Ct., 1875, 
 demons T. Davis, 4 Hun, 260. 
 
 860. — changing prayer for relief. In an 
 action for conversion, the plaintiff may properly 
 be allowed, after the closing of tlie testimony, 
 but before verdict, to amend the prayer for re- 
 lief by increasing the amount for which he 
 claims judgment, where the additional claim has 
 been litigated by the parties, the defendant not 
 claiming to be surprised or unprepared to meet 
 the issue. N. Y. Supr. Ct., 1874, Knapp v. 
 Roche, 37 N. Y. Supr. (5 J. & Sp.) 895. 
 
 351. — alleging alteration in contract. In 
 an action to foreclose a mechanic's lien, brought 
 by a subcontractor against the contractor and 
 owner, an answer by the contractor setting up 
 liis own lien and seeking to enforce it may 
 properly be allowed to be amended on the trial, 
 so as to allege a recently discovered alteration 
 of the written contract by the owner without the 
 consent of the contractor, in fraud of his rights, 
 and to claim on a giumtum meruit for the whole 
 work ; or, he may be allowed to set up the same 
 facts by supplemental pleading. N. Y. C. P., 
 Sp. T., 1873, Gambling v. Haight, 14 Abb. N. S. 
 398, n. 
 
 352. — changing defense. The court has 
 power in its discretion to allow any allegation 
 material to the case to be inserted in the answer, 
 though the effect may be to change the defense ; 
 and when a new trial has been ordered the court 
 has the same power to allow the parties to 
 amend as though the action had never been 
 tried. N. Y. Supr. Ct., 1876, Schreyer v. Mayor, 
 etc. of New York, 39 N. Y. Supr. (7 J. & Sp.) 277. 
 
 353. Thus, a defendant may be permitted to 
 strike out an admission made in his answer 
 tlirough misapprehension, and insert in its place 
 a denial. lb. 
 
 354. — setting up infancy. The amendment 
 of an answer in an action to foreclose a mechai^ 
 ic's lien, under the act of 1863, relating to Jihe 
 city of New York, so as to set up the infancy of 
 the defendant at the time of the incurring of the 
 
 liability, is not in matter of form, within the 
 provision of sec. 5 of that act, but in matter of 
 substance, changing the whole defense ; and its 
 allowance or not is within tlie discretion of the 
 court, and not reviewable on appeal. N. Y. C. 
 P., 1878, McGraw v. Godfrey, 14 Abb. N. S. 897 ; 
 Aff'd. S. C, 56 N. Y. (11 Sick.) 610. ' 
 
 '865. — setting up technical defense. The 
 defense, that the plaintiff carried on business 
 under a iirm title which did not represent real 
 parties, is a purely technical one and not merito- 
 rious, and it is a proper exercise of discretion 
 for the court to refuse to allow an amendment 
 setting it up. Sup. Ct., 1874, O'Toole v. Garvin, 
 1 Hun, 313. 
 
 366. Conforming to proof. A complaint 
 which alleges a mistake of facts in entering into 
 a contract, and demands a rescission for that rea- 
 son, may be amended to conform to the proof 
 if that shows also a fraud on the part of the de- 
 fendant. Sup. Ct., 1871, Smith v. Mackin, 4 
 Lans. 41. 
 
 857. In afl action for the conversion of bonds, 
 where all the testimony by which a cause of action 
 on a promise was proved, was admitted under 
 specific objections and an express ruling of the 
 court that it should be limited in its effect to show- 
 ing notice to defendant of plaintiff's claim, and the 
 case was tried on that understanding, the plaintiff 
 should not be allowed to amend his complaint 
 after the trial, so as to conform it to the proofs 
 and set up a cause of action on the promise. N. 
 y. Supr. Ct., 1875, Smith v. Frost, 89 N. Y. Supr. 
 (7 J. &Sp.) 389. 
 
 358. Referee may allow. The power of a 
 referee to allow amendments, like that of a_ 
 judge at the trial, is restricted to such as do not' 
 change substantially the claim or defense ; and 
 its exercise is so far discretionary, that an appel- 
 late court will not disturb the decision, whether 
 allowing or disallowing the amendment, unless 
 the power has manifestly been unwisely exer- 
 cised. N. Y. Supr. Ct., 1875, Dougherty v. Val- 
 lotton, 88 N. Y. Supr. (6 J. & Sp.) 455. 
 
 359. The power to amend by conforming the 
 pleadings to the proofs is not confined to the 
 trial, or to the court at Special Term ; but the 
 General Term, on appeal from the judgment, and 
 even the Court of Appeals, can allow it in 
 furtherance of justice. lb. 
 
 360. Laches, effect of. A motion made by 
 plaintiff, three years after issue was joined in 
 the action, and nine years^fter the transaction 
 on which it was founded, to amend his complaint 
 so as to entirely change it, may properly be de- 
 nied on the ground of laches in making it. 
 Sup. Ct, 1874, Gowdy v. Poullain, 2 Hun, 218- 
 
 361. In a case long pending, and on its second 
 trial before a referee, suspicions cast wpon the 
 affidavit, made in support of an agpfcation for 
 leave to amend the answer', by the testimony 
 taken on the former trial, will he considered by 
 the court in deciding such application. Sup. Ct, 
 1874, Smith v. Bodine, 1 Htin, 309. 
 
 862. 'What is a variance. Proof that only 
 part of a claim, alleged to have been collected 
 in full, has been collected, does not constitute a 
 variance calling for a dismissal of the complaint. 
 N. Y. Supr. Ct; 1869, Lass v. Wetmore, 2 Sweeny, 
 209. 
 
 36.9. W'hen immaterial. The employment 
 of particular words in stating a cause of action, 
 will not so characterize the action, and conclude 
 the plaintiff, that he must prove the cause of 
 action precisely as stated. If the facts consti- 
 tute a cause of action of any kind, that will be 
 sufficient, without regard to the manner of stat- 
 
566 
 
 PLEADING. 
 
 ing them ; and if the proof sustains a, cause of 
 action which can be found in the complaint, it 
 is enough. N. Y. Supr. Ct., 1874, Knapp v. Boclie, 
 37 N. Y. Supr. (5 J. & Sp.) 395. 
 
 364. Tims, under a complaint which states, in 
 substance, that the defendant, being entrusted 
 with the checks of a bank, instead of paying the 
 bank debt with them or with their proceeds, ap- 
 propriated the amount to his own use, upon 
 proof of those facts, the receiver of the bank, as 
 plaintiff, can recover as for money had and re- 
 ceived or money lent and advanced, notwith- 
 standing the complaint charges that he wrong- 
 fully and unlawfully took and converted such 
 checks to his own use. lb. 
 
 365. Where the complaint in an action upon 
 contract alleges that the plaintiff refused to en- 
 ter into the contract unless one of the defendants 
 should indorse it and become responsible for its 
 performance, and the proof shows the agreement 
 to have been that said defendant should join in 
 and sign the same, the variance is immaterial, 
 and should be disregarded. Sup. Ct., 1875, Hauck 
 V. Craighead, 4 Hun, 561. 
 
 366. Where the complaint charges the con- 
 struction of the bridge. Sac., causing the injury 
 for which the action is brought, by the defend- 
 ant railroad company, but the proof shows that 
 they were created by a predecessor of the de- 
 fendant, and it is liable, if at all, for continuing 
 the same, such discrepancy is a mere variance, 
 and may properly be disregarded. Sup. Ct., 
 1875, Conhocton Stone R. Co. v. Buffalo, N. Y. &■ 
 E. K R. Co., 3 Hun, 523. 
 
 367. Proof of the value of services rendered 
 may be given under a complaint upon contract 
 
 ■ for a specific sum. Such a variance between the 
 pleading and proof is immaterial and may be 
 disregarded. Ct. App. 1873, Sussdorff v. Schmidt, 
 55 N. Y. (10 Sick.) 819. 
 
 368. Variances between the slanderous words 
 alleged and those proved, or in respect to the 
 place where they were spoken, which could not 
 mislead the defendant may be disregarded as 
 immaterial. Ct. App., 1869, Boynton v. Boynion, 
 43 How. 380. 
 
 369. A plea of usury should set out the trans- 
 action correctly in substance ; but, where the 
 evidence at the trial tends to prove a usurious 
 agreement, different from the one alleged in 
 some particulars but not in its entire scope and 
 meaning, and the plaintiff was not misled there- 
 by, the variance will be deemed immaterial. 
 Sup. Ct., 1876, Clayes v. Hooker, 4 Hun, 231. 
 
 370. When material. A complaint which 
 sets forth a grant of an easement of using all the 
 water flowing from a pond which might be ne- 
 cessary to propel a grist mill ; covenants in 
 respeci thereto by the grantor, and breaches of 
 such covenants on the part of the defendant, 
 who had acquired the grantor's title to the mill 
 pond ; and aska a judgment for $1,000 ; but 
 contains no allegation that the acts complained 
 of were wrongfully or intentionally done; states 
 a cause of action ex contractu; and a recovery 
 as for a tort, on failure to prove the covenants, 
 cannot be sustained. In such case there is not a 
 variance merely, but an entire failure of proof. 
 Sup. Ct., 1874, Beard v. Yates, 2 Hun, 466. 
 
 371. Under a complaint against brokers em- 
 ployed by the plaintiff to buy and sell stpcks 
 and gold, which alleges that defendants did pur- 
 chase and sell stocks and gold for plaintiff un- 
 der their agreement ; and that large profits had 
 accrued .and defendants had received a large 
 amount of money, to which plaintiff was entitled, 
 and neglected to account therefor, and prays 
 
 judgment for an accounting, and for the balance 
 found due theieon, a judgment for the plaintiff 
 cannot be sustained unless based upon the prof- 
 its of the transactions. Proof of damages sus- 
 tained by reason of defendant's violation of 
 plaintiff's orders will not sustain a judgment 
 though not objected to on the trial. S. Y. 
 Supr. Ct., Delavan v. Simonson, 35 N. Y. Supr. 
 (3 J. & Sp.) 243. 
 
 372. Under a complaint alleging fraud as the 
 basis of the action, the law will not permit a 
 recovery by proof of a right of action on con- 
 tract. Ct. App., 1872, Degravi v. Elmore, 50 N. 
 Y. (5 Sick.) 1. S. P. Beach v. Eager, 3 Hun, 
 610. -^ . . 
 
 373. Where the action is clearly based upon 
 the defendant's fraud inducing the plaintiff to 
 receive his note for a loan, the plaintiff, failing 
 to prove the fraud, cannot recover upon the note 
 as in an action on contract. Sup. Ct., 1875, Peck 
 V. Root, 5 Hun, 547. 
 
 374. Where the gravamen of the action set up 
 in the complaint is fraud in a sale, the plaintiff 
 cannot recover on proof of a warranty and a 
 breach thereof, without proof of the fraud. 
 Com. App., 1872, Ross v. Mather, 51 N. Y. (6 
 Sick.) 108 ; Bev'g S. C, 47 Barb. 582. 
 
 375. A fraudulent omission and concealment, 
 set up as a counterclaim, is not established by 
 proof of an omission by mistake, and it is not 
 competent on the trial to substitute one for the 
 other. Com. App., 1874, Dudley v. Scranton, 57 
 N. Y. (12 Sick.) 424. 
 
 376. Where the plaintiff's whole cause of ac- 
 tion as stated in the complaint rests upon an 
 alleged fraud, the court cannot change the form 
 of the action, by striking out or trpnting as sur- 
 plusage the principal allegations, which char- 
 acterize and give form to the action, because 
 there may be facts stated by way of inducement 
 that, if put in proper form, might sustain an 
 action of assumpsit. Ct. App., 1874, Barnes v. 
 Quigley, 59 N. Y. (14 Sick.) 265. 
 
 377. Where the complaint was for a fraud in 
 procuring the plaintiff to discharge a note on 
 receipt of a less sum than was due, and the answer 
 admitted the making of the note and the pay- 
 ment and surrender, but denied the other alle- 
 gations ; — Held, that it was error to disregard 
 the allegation as to fraud, and give judgment 
 for the balance unpaid on the note. lb. 
 
 378. Where the complaint alleges a cause of 
 action for money liad and received by defendant 
 to plaintiff's use, and contains no averment 
 showing that the claim originally belonged to 
 another party and had been assigned to the 
 plaintiff, it is not competent for him to make a 
 ease as assignee by his proofs. That would be 
 more than a mere variance between the pleading 
 and the proof. Sup. Ct., 1874, Decker v. Salts- 
 man, 1 Hun, 421 ; Aff'd by Ct. App. 
 
 379. Defects w^hen cured. If a complaint 
 simply alleges an indebtedness to exist without 
 stating the facts necessary to show its existence 
 the defect is cured by an answer setting out 
 those facts ; and the complaint will not be dis- 
 missed on that ground, especially after one trial, 
 and the decision of an appeal ordering a new 
 trial, without the objection being raised. Sup. 
 Ct., 1875, Miller v. White, 4 Hun, 62. 
 
 380. In such a case, where tlie-answer alleges 
 that the indebtedness mentioned in the com- 
 plaint accrued for certain services, and sets up 
 facts showing the contract under which they 
 Were rendered to be void as against public pol- 
 icy, that is sufficient to sustain a recovery if 
 the contract is valid. lb. 
 
PLEDGE. 
 
 567 
 
 PLERGB. 
 
 1. 'What is. Where the owner of a house and 
 lot, having contracted to sell it for a certain 
 sum, free of taxes, &o., taking his pay in clothing, 
 and having discovered unpaid taxes thereon to 
 the amount of about $280, agreed with the pur- 
 chaser that he should retain $660 of the cloth- 
 ing (all of which had been selected), as security 
 for the payment of the taxes, upon condition 
 that, if they were paid in one month, the cloth- 
 ing so retained should be delivered, if not, then 
 such purchaser should have tlie right to pay 
 them and appropriate the goods ; and the deed 
 and the balance of the goods were delivered ; — 
 Held, that the transaction was not a pledge, and 
 tlie grantor having failed to pay the taxes with- 
 in the 30 days, could have no right of redemp- 
 tion against his grantee who afterward paid them. 
 Com. App., 1873, Hale v. Hays, 84 N. Y. (9 
 Sick.) 889. 
 
 2. The deposit of stock certificates with a 
 broker, as security against loss in a transaction 
 undertaken by him for his principal, creates the 
 relation of pledgor and pledgee, and all the legal 
 incidents of tliat relation follow. Ct. App., 1873, 
 Lavjrence v. Maxwell, 53 N. Y. (8 Sick.) 19 ; 
 Aff'g S. C, 6 Lans. 469 ; 64 Barb. 102. 
 
 3. The pledge may, with the assent, express 
 or implied of the pledgor, be liypotliecated or 
 used by the pledgee in any way not inconsistent 
 with the general ownership and ultimate riglits 
 of the former to have the property returned 
 when tlie lien shall be discharged ; but a sale of 
 the property is inconsistent with those ultimate 
 rights, and authority to sell cannot be intro- 
 duced into a contract of bailment by custom or 
 usage. lb. 
 
 4. The right of the pledgee ceases the instant 
 the obligation of the pledgor is discharged, and 
 the pledge is thereupon released, and it is the 
 duty of the pledgee at once tp restore it. His 
 neglect or refusal so to do renders him liable to 
 an action as for a conversion of the property. lb. 
 
 6. Validity. A pledge by one party of his 
 own railroad bonds as security for the debt of 
 another party, with an agreement to redeem at 
 par within one year, in consideration of which 
 tlie creditor gives up his security against the 
 debtor and extinguishes the debt as to him, is 
 valid under the statute of frauds, and can be 
 enforced by a judgment directing a sale of the 
 bonds and a personal judgment for deficiency 
 against the debtor. Ct. App., 1875, Booth v. 
 Eighmie, 60 N. Y. (15 Sick.) 238. 
 
 6. Agreement for. A party who has a con- 
 tract for a pledge, ineffectual for want of de- 
 livery, may obtain delivery at any subsequent 
 time, and thus, in the absence of fraud, validate 
 tlie pledge even as against intermediate creditors, 
 unless tliey have acquired specific hens. Ct. 
 App., 1873, Parshall v. Eggart, 54 N. Y. (9 Sick.) 
 18. 
 
 7. Rights of pledgor. An appellant who 
 delivers securities to a surety on his bond given 
 on appeal to the Court of Appeals, to indemnify 
 him against liability on the bond, is entitled to 
 a return thereof upon satisfaction of the judg- 
 ment after affirmance on appeal. Proof of fraud 
 or mistake to which he was privy, in procuring 
 such satisfaction, might enable him to retain the 
 securities. Sup. Ct., 1872, Gove v. Lawrence, 6 
 Lans. 89. 
 
 8. Where such securities belong to a firm, an 
 agreement by one member of the firm that the 
 pledgee may apply them to the individual debt 
 of such partner is inva,lid. lb. , 
 
 9. Pledgee's liability. A pledgee who leaves 
 the property pledged in a suitable warehouse 
 selected by the pledgor, in charge of warehouse- 
 men of good reputation and well known to the 
 pledgor, and employs an agent to visit the. ware- 
 house periodically and examine the property to 
 see that it is well cared for, is not guilty of gross 
 negligence, and if lie has by contract limited his 
 liability to loss or injury resulting from such 
 negligence ; he is not liable for the loss of the 
 property tlirough the theft or misappropriation 
 thereof by such warehouseman. N. Y. Supr. Ct., 
 1875, Van Nostrand v. N. Y. Guaranty and In- 
 demnity Co., 39 N. Y- Supr. (7 J. & Sp.) 73. 
 
 10. A pledgee of personal property as security 
 for the payment of a note, does not make himself 
 liable to the pledgor or other parties to the note 
 by a refusal to sell the property pledged on their 
 request, if he so refuses in the exercise of an 
 honest judgment, having regard to his own rights 
 and interests as well as those of the parties to 
 the note and tlie owners of the property, although 
 such property was afterward sold at a much less 
 price than could then have been obtained for it. 
 N. Y. Supr. Ct., 1874, Field v. Leavitt, 37 N. Y. 
 Supr. (5 J. & Sp.) 215. 
 
 11. Right to sell pledge. Authority to sell 
 bonds transferred as security, in case of de- 
 fault, upon giving a specified notice, simply con- 
 fers the right to sell and prescribes the mode in 
 which the sale may be summarily made, without 
 either expressly or by reasonable implication 
 excluding other lawful proceedings to attain the 
 same end. Sup. Ct., 1875, Coffin v. Chi. ^N. P. 
 Construction Co., 4 Hun, 625. 
 
 12. Where property is pledged for the benefit 
 of another than the owner, the pledgee having 
 notice of the rights of such owner, he cannot sell 
 even by direction of the one for whose benefit 
 the pledge was made, save as pledgee, in the 
 manner and upon the notice required by law ; 
 and if he does, he will be liable for a conversion. 
 Ct. App., 1872, Porter V. Parks, 49 N. Y. (4 Sick.) 
 564. 
 
 13. Unless expressly authorized by the stock 
 note or instrument pledging stock, a sale of such 
 stock by the pledgee, without notice to the 
 pledgor, is an unlawful conversion, and renders 
 him liable in an action therefor. N. Y. Supr. 
 Ct., 1872, Ogden v.Lathrop, 35 N. Y. Supr. (3 J. 
 & Sp.) 73. 
 
 14. The pledgee is liable, in such ease, not- 
 withstanding the business was done through a 
 third party in whom he put confidence, and he 
 was kept in tlie dark as to it and derived no ad- 
 vantage from the sale. lb. 
 
 15. If, after such sale, the party doing the 
 business falsely represents to the pledgor that 
 he still has his stock and can use it notwith- 
 standing the failure of the company, and thereby 
 obtains an order for its sale, and on settlement 
 of the loan for which it was pledged credits and 
 allows the pledgor a certain sum as proceeds of 
 the stock, instead of the amount actually real- 
 ized, the latter is not thereby precluded from 
 enforcing his remedy for the recovery of sucli 
 proceeds, on discovery of the deceit. lb. 
 
 16. A sale of stocks pledged as collateral to a 
 note at public auction, after default in payment 
 of the note, without proper demand and notice 
 to the pledgor, and a purchase thereof at such 
 sale by the pledgee, is voidable at the election 
 of the pledgor ; and if he chooses to treat it as 
 void, the relations of pledgor and pledgee still 
 remain unchanged between the parties, and the 
 latter is not liable to the former as for the con- 
 version of the stock. Sup. Ct., 1872, Bryan v. 
 
568 
 
 POLICE— POWERS. 
 
 Baldwin, 1 Lans. 174; AfE'd, S. C, 52 N. Y. (7 
 Sick.) 232. 
 
 17. Where stocks were purchased by stock- 
 brokers for another, under an agreement where- 
 by tlie latter was to furnish a margin and to keep 
 it good on demand, and in case of his non-com- 
 pliance with the demand, the brokers were au- 
 thorized to close tlie account witliout notice by 
 purchase or sale at public or private sale, — Held, 
 that the relation between the parties was that of 
 pledgor and pledgee of the stock, and that a sale 
 thereof without notice, because of a deficiency 
 in the margin, but before demand made that it 
 be kept good, was unauthorized and rendered 
 the brokers liable in damages. Com. App., 
 1873, Stentm v. Jerome, 54 N. Y. (9 Sick.) 480. 
 
 18. Where, upon a pledge of stocks, tlie owner 
 confers on the pledgee the indicia of an absolute 
 title by endorsing upon them and executing an 
 assignment and power of attorney in blank, third 
 persons advancing money to the pledgee upon 
 faith thereof and without knowledge of the rights 
 of tlie owner, will obtain a valid title as against 
 the latter to the extent of the moneys so ad- 
 vanced. Ct. App., 1871, McNeil v. Tenth Nation- 
 al Bank, 46 N. Y. (1 Sick.) 325; Bev'g S. C, 56 
 Barb. 59. 
 
 19. Redemption. Where property is pledged 
 for a certain sum of money borrowed, imder an 
 agreement to pay a certain bonus in addition to 
 the principal sum when that becomes due, noth- 
 ing being said about interest, a tender of such 
 principal sum and bonus is sufficient to enable 
 the pledgor to maintain an action to redeem. 
 The bonus must be deemed to be in lieu of in- 
 terest. Sup. Ct., 1873, Hines v. Strong, 46 How. 97. 
 
 POLICE. 
 See New Yoek Citt. 
 
 POOR. 
 
 See SUPBKINTENDENTOP FOOB, 
 
 As to State paupers, see ch. 661, Laws o/"1873 ; ch. 
 i6i, Laws of 1874. 
 
 POSSESSION. 
 See FRAnDB, statute op ; sale. 
 
 POSTHUMOUS CHILDEEN. 
 See Will 
 
 POST-NUPTIAL AGREEMENTS. 
 See HuBBABD and wife. 
 
 POWERS. 
 
 1 Of attorney. A power of attorney to col- 
 lect back excessive duties paid or to be paid by 
 the party executing it, for a compensation de- 
 
 pendent on the amount of collection, is revocable, 
 even after services are commenced to obtain a 
 refund. Ct. App., 1872, Culver v. Western Union 
 Telegraph Co., 60 N. Y. (5 Sick.) 691. 
 
 2. A power of attornejf giving authority to 
 demand, sue for and recover a debt due the 
 principal, and to execute suflBcient releases and 
 discharges, does not authorize the attorney to 
 release the debt without satisfaction or to satis- 
 fy a judgment obtained thereon without actual 
 payment. The power is restricted to the ac- 
 complishment of the purpose of the agency. Ct. 
 App., 1873, De Mets v. Dagron, 53 N. Y. (8 
 Sick.) 635. 
 
 3. Of public ofBcer. A public oflacer cannot 
 be deprived by implication of a power conferred 
 upon him for public purposes. Ct. App., 1873, 
 Anderson v. Van Tassel, 53 N. Y. (8 Sick.) 631. 
 
 4. Majority may act. A question between 
 an individual and the State, as a power to de- 
 termine and certify as, to the genuineness of cer- 
 tain reUcs proposed to be purchased by the 
 State, is a matter of public concern ; and, even 
 independently of the provisions of the Revised 
 Statutes, wlien such a power is conferred upon 
 a number of persons, a majority of those ap- 
 pointed, upon a meeting of all, may e.\ecute it. 
 Grover, J., dissents. Ct. App., 1873, People ex 
 rel. Washington v. Nichols, 52 N. Y. (7 Sick.) 478. 
 See ch. 321, Laws oflSli. 
 
 5. Where a discretionary power is given by a 
 corporation to three of its directors to execute 
 and deliver a lease of corporate property, two 
 of them may seal it with the corporate seal, in 
 the absence of the third, after all have agreed 
 upon its terms. Sup. Ct., 1872, Prest. of the 
 Union Bridge Co. v. Trog Sr Lans. R. R. Co., 7 
 Lans. 240. 
 
 6. A grant of power in the nature of a public 
 office to several, with no provision for supply- 
 ing a vacancy, does not become void upon the 
 death or disability of one or more, but the sur- 
 vivors may act with the like effect as if all par- 
 ticipated. Ct. App., 1873, People ex rel. Kings- 
 land V. Palmer, 52 N. Y. (7 Sick.) 83. 
 
 7. To be strictly pursued. When a special 
 authority is delegated by statute to particular 
 persons or public bodies affecting the property 
 of individuals against their will, the course and 
 mode of proceeding prescribed by law must be 
 rigorously pursued and every substantial re- 
 quirement of the statute giving the power must 
 be strictly fulfilled. Sup. Ct. Sp. T., 1872, In 
 Matter qf Petition of N. Ford, 6 Lans. 92. 
 
 8. Power in trust. A conveyance of land by 
 a man to his four minor children by deed with 
 full covenants of warranty, " reserving to him- 
 self the entire and exclusive use, benefit and 
 control of said premises during his natural life, 
 and reserving also to himself the power to dis- 
 pose of said premises or any part thereof, by a 
 deed executed in the name of the parties of the 
 secoijd part, or in his own name alone, in trust, 
 nevertheless, and for tbe benefit of the said par- 
 ties of the second part, and to hold the purchase 
 money for their use, or to loan it upon good se- 
 curities during his life, thereby securing to them 
 the principal sum at his death, retaining the in- 
 terest for his own use and benefit," if not good 
 as an express trust vested in the grantor, can be 
 upheld as a power in trust under the statute, 
 and such grantor can convey a fee simple to a 
 third person by a deed in his own name. Sup. 
 Ct. Cir., 1875, Johnson v. Beeves, 48 How. 605. 
 
PRACTICE. 
 
 569 
 
 PUACTICE. 
 
 I. The summons 569 
 
 n. Appearance and preliminary pro- 
 ceedings 570 
 
 in. Service op pleadings ; substitu- 
 tion OP parties ; ETC 574 
 
 IV. Trial in general 575 
 
 1. Proceedings between issue and trial. 
 
 2. Proceedings on the trial. 
 
 3. The verdict. 
 
 4. Trial by court without jury. 
 
 5. Reference. 
 
 6. Inquests or defaults. 
 
 7. Bill of exceptions, 
 
 V. Judgment 606 
 
 1. Entry ; form ; validity ; lien. 
 
 2. Correcting; modifying; vacating. 
 
 3. Satisfaction and discharge. 
 
 VI. Execution ; Supplementary pro- 
 ceedings 611 
 
 Vn. Provisional remedies 613 
 
 1. Arrest and bail. 
 
 2. Attachment. 
 
 8. Claim and delivery, or replevin, 
 
 4. Injunction. 
 
 5. Heceiver. . 
 
 Vni. Motions and Orders ; Affidavits. 624 
 
 I. The summons. 
 
 1. Fonn. The form of summons provided by 
 subd. 1, sec. 129 of the Code, is proper only 
 when the action is on contract, using that term 
 in its ordinary and proper sense. A summons 
 in an action for a statutory penalty should be 
 in the form prescribed by subd. 2 of that sec- 
 tion. Ct. App., 1872, McConn v. N, Y. Cent. 
 Sr Hud. Riv. R. R. Co., 50 N. Y. (6 Sick.) 176 ; 
 Rev'g S. C, 7 Lans. 76. 
 
 2. The mistake of issuing a summons mider 
 the wrong subdivision, it seems, is cured by serV' 
 ing with it a copy of the complaint. lb. 
 
 8. — in action on contract. A complaint 
 wliich alleges the performance of services as a 
 police officer for the defendant city, and the 
 auditing of his account at a specified sum, and 
 the drawing of an order therefor and its present- 
 ment and non-payment, and demands judgment 
 for the amount of such order, does not become 
 a complaint in tort for negligence by the addi- 
 tion of an allegation that the defendant neglect- 
 ed and failed to keep the means in the hands of 
 its treasurer to pay said account, and there 
 were no funds in his hands out of which it could 
 properly be paid, so as to create a variance be 
 tween it and the summons, which was for 
 money, and render it liable to be set aside on 
 motion of defendant. Sup. Ct. Sp. T., 1870, 
 Prudden v. City of Lockport, 43 How. 286. 
 
 4. — in action for penalty. The object of 
 the requirement of the Revised Statutes (2 R. 
 S. 481, sec. 7 ; 2 Edm. Stats. 603), that, in 
 actions to recover a penalty or forfeiture, a 
 reference to the statute by which the action is 
 given shall be indorsed on the summons, was to 
 inform the defendant of the nature and cause of 
 the action against him ; and that object is fully 
 and completely.answered, and the requirement 
 satisfied, when a complaint containing such a 
 reference is annexed to and served with the 
 summons, although that is not indorsed. Sup. 
 Ct., 1872, Cox V. New York Cent, ir B. R. R. R. 
 Co., 61 Barb. 615. 
 
 5. — in action for rent. The summons, in 
 
 an action for the recovery of rent, which by the 
 terms of the lease was to be ps^d in wheat, 
 should contain the notice required by subd. 2, 
 of sec. 129 of the Code, that not being an action 
 arising on contract for the recovery of money 
 only. Sup. Ct., 1875, Blaisdell v. Whiteford, 4 
 Hun, 264. 
 
 6. Service on foreign corporation. Serv- 
 ice of a summons here on the general solicitor 
 or counsel of a foreign corporation is good, 
 where the corporation has failed to designate 
 a person residing in tliis State on whom ser- 
 vice of papers could be made, as required by 
 ch. 279, Laws of 1866. Sup. Ct. Sp. T., 1874, 
 Clews V. Rockford, R. I. 4r St. L. R. R. Co., 49 
 How. 117. 
 
 7. On husband alone. In an action against 
 husband and wife, affecting only the husband's 
 real estate, service of summons upon the hus- 
 band alone is a good service upon the wife. If 
 the action concerns the wife's separate property, 
 process must be serred on her. Sup. Ct., 1871, 
 Lathrop v. Heacock, 4 Lans. 1. 
 
 8. In an action to foreclose a purchase-money 
 mortgage executed by a husband alone, service 
 of a summons, directed to his wife, upon the 
 husband for her, is sufficient, and it is bis duty 
 to appear and answer jointly for himself and 
 wife. Service upon the wife is necessary only 
 when the proceedings are against her separate 
 property. Sup. Ct., 1874, Watson v. Church, 3 
 Hun, 80. 
 
 9. By copy. An affidavit made by the 
 sheriff, stating that he has made diligent and 
 proper efforts to serve the summons upon tlie 
 defendant, by going to his place of business and 
 residence, but that he could not be found in the 
 State, is sufficient to authorize a county judge 
 to order a substituted service by copy, pursuant 
 to eh. 511, Laws 1853, and ch. 212, Laws 1863 (4 
 Edm. Stats. 698; 6 id. 91). Sup. Ct., 1875, 
 Simpson v. Burch, 4 Hun, 815. 
 
 10. By publication. A summons for the 
 commencement of an action of an equitable 
 nature may, by virtue of the former practice in 
 chancery, be served by publication on an absent 
 defendant who has property in this State. Sup. 
 Ct. Chambers, 1866, Lefferts v. Harris, 10 Abb. 
 N. S. 2, n. 
 
 11. Jurisdiction of a foreign receiver cannot 
 be obtained by publication of summons, in an 
 . action to restrain a bank from returning to him 
 a note received from him for collection, where 
 it appears that he has no property in this State 
 except such note ; that it does not belong to 
 him except in his capacity as receiver ; and 
 that it was sent to the bank for collection, to 
 be returned immediately if not paid. Sup. Ct., 
 1874, Galusha v. Flour City Nat, Bank, 1 Hun, 
 573. 
 
 12. An action for a separation or limited 
 divorce, is one in which service of summons by 
 publication may be ordered, under subd. 6, sec. 
 136 of the Code. Sup. Ct. Sp. T., 1872, Easter- 
 brook V. Easterbrook, 64 Barb. 421. 
 
 13. The fact tliat due diligence has been used 
 and the defendant cannot be found, must appear 
 by affidavit to the satisfaction of the court, and 
 for that purpose the facts showing such dili- 
 gence should be stated. The certificate of the 
 sheriff that he has been credibly informed that 
 the defendant has left the State, is not sufficient 
 to justify an order of pubUcation. lb. 
 
 14. Affidavit for order. An affidavit upon 
 information and belief that the defendant has 
 departed from the State with the intention of 
 evading the service of a summons, is not suffi- 
 
570 
 
 PRACTICE. 
 
 cient to uphold an order for publication, under 
 subd. 2 of that section, which uses the term 
 avoid, lb. 
 
 15. In order to authorize an order for the 
 publication of summons, it must be made to 
 appear to the court or judge granting the same ; 
 1st, that the defendant cannot, after due dili- 
 gence, be found in the State ; 2d, that a cause 
 of action exists against such defendant, or that 
 he is a proper party to an action relating to real 
 property in this State ; 8d, that the defendant is 
 not a resident of the State. To show that he is 
 a non-resident is not sufficient witliout sliowing 
 tliat he cannot be fpund in the State. Sup. Ct., 
 1874, Bixbi/ V. Smith, 49 How. 50 ; S. C, 3 Hun, 
 60. 
 
 16. Affidavits for the purpose of procuring an 
 order for the publication of a summons should 
 be required to state in detail the information, or 
 the facts and circumstances on which the affiant 
 relies to sustain his inferences or belief ; but the 
 tendency of recent decisions is to uphold pro- 
 ceedings taken in good faitli, in the absence of 
 affirmative evidence disproving the facts alleged, 
 if the original papers contain evidence calling 
 for tlie judgment of the officer who is required, 
 in the first instance, to determine their sufficien- 
 cy. Sup. Ct. Sp. T., 1874, Bzndleu v. Quick, 47 
 How. 238. 
 
 21. Affidavit of m2uUng. An affidavit 
 which states that the affiant deposited a copy 
 of the summons and complaint " duly directed " 
 to the defendant " at Belleville, N. J., and paid 
 the full postage thereon, there being a regular 
 mail communication between the city of New 
 York and Belleville, N. J., — Held, sufficient to 
 show a deposit of the summons and complaint, 
 duly directed, &c., in the Post Office at New 
 York. lb. 
 
 22. Time of publication. Where an order 
 for publication requires it to be made " not less 
 than once a week for six weeks," it is not es- 
 sential that it be published on the same day in 
 each week, so as to make the intervals equal, 
 but if may be on any day in each seven consti- 
 tuting a week. lb. 
 
 23. An admission of personal service of 
 summons and complaint wliich does not state 
 the place of service, is insufficient to authorize 
 the entry of judgment by default, sec. 138 of the 
 Code requiring both time and place of service 
 to be stated. Sup. Ct. Sp. T., 1874, Trolan v. 
 Fagan, 48 How. 240. 
 
 24. Service out of State. In a case where 
 service of summons lias been ordered to be made 
 by publication, a personal service thereof out of 
 the State is equivalent to publication, but does 
 not shorten the time for defendants to answer. 
 
 17. Affidavits which tend to show tliat the de- Sup. Ct. Sp. T., 1873, Kerner v. Leonard, 16 Abb. 
 fendant cannot, after due diligence, be found N. S. 96. 
 
 within tlie State ; one of wliich positively avers 
 that he is a non-resident of the State, and gives 
 his actual residence in another State, and also 
 avers in terms that he " cannot after due dili- 
 gence be found within tills State, he now being, 
 as deponent is informed and believes, at or near 
 M in tlie State of Penn.," his place of residence, 
 and also states the sending of a copy of the 
 summons and complaint to the sheriff of a 
 county in this State, near to such residence, and 
 t)ie receipt of a telegram from such sheriff that 
 he has been unable to serve such summons ; — 
 Held, sufficient to give the officer jurisdiction 
 to make an order for publication of summons, 
 lb. 
 
 18. Although the actual existence of the fact 
 that the defendant has property within this 
 State is essential to the jurisdiction of the court, 
 yet affidavits which distinctly aver, on informa- 
 tion and belief, the existence of that fact, and 
 state one circumstance tending to prove it, of 
 wliich the deponents have been informed, and 
 the source of their information, but do not state 
 that this was all the information they had on 
 the subject, is sufficient to enable the officer to 
 pass upon the question ; and the order of publi- 
 cation will not be set aside upon affidavits which 
 tend to show that, although the defendant had 
 transferred the property claimed to be in this 
 State, he had done so in bad faith and to avoid 
 payment of his debts. lb. 
 
 19. An affidavit to procure an order of publi- 
 cation of summons in a foreclosure suit, which 
 shows that tlie defendants are absent and reside 
 in a foreign State, is probably sufficient, although 
 it fails to state what ineffectual efforts have been 
 made witliin this State to serve the summons. 
 N Y. C. P. Sp. T., 1872, Allen v. Malcolm, 12 
 Abb.N. 'S.886. 
 
 20 An affidavit of the non-residence of the 
 defendant in a foreclosure suit, for the purpose 
 of obtaining an order allowing service of the 
 summons by publication, made on information 
 and belief, without setting out ttie source of the 
 information, is sufficient. N. Y. C. P., bp. 1., 
 
 r872,s"3v:ieM2Abb.N.S.m. 
 
 25. Where personal service of the summons 
 is made upon a defendant out of the State after 
 an order of publication, such service is not 
 complete until the time for publication has ex- 
 pired. Ct. App., 1872, Brooklyn Trust Company 
 V. Bulmer, 49 N. Y. (4 Sick.) 84. 
 
 26. Such service can be made only when 
 publication has been ordered, and when so made 
 it is equivalent to publication and deposit in the 
 post office. lb. 
 
 27. Fraudulent service. The service of a 
 summons will be set aside and vacated, where 
 the evidence shows that deceit has been used 
 for the purpose of bringing the defendant within 
 the jurisdiction of the court. N. Y. Supr. Ct., 
 1873, Baker v. Wcdes, 45 How. 137 ; S. C, 14 
 Abb. N. S. 331 ; 35 N. Y. Supr. (3 J. & Sp.) 403. 
 
 28. Irregular service. The omission to 
 serve the summons, personally or by publication, 
 within thirty days after the allowance of an 
 attachment, is an irregularity which entitles the 
 defendant to avoid all proceedings after the 
 issuing of the attachment ; but it does not render 
 them void as regards third persons. Sup. Ct, 
 1875, Simpson v. Burch, 4 Hun, 315. 
 
 U. APPEABANCB AND PBBLIMINAET 
 FKOCEEDIiraS. 
 
 29. Guardian ad litem. If an infant plaintiS 
 fails to have a guardian appointed before he 
 commences his action, or if he procures one to 
 be appointed who is at the time an infant, the 
 defendant is not limited to his answer in the 
 nature of a plea in abatement, but he may move 
 to have the proceedings set aside for irregularity, 
 even after issue is joined on the merits and tlie 
 case is put upon the calendar for trial. BuS. 
 Sup. Ct. Sp. T., 1872, Wolfard v. Oakley, 43 How. 
 118. 
 
 30. Where, in such a case, it appears that the 
 appointment was made in good faith, and under 
 a misapprehension on the part of both the plain- 
 tiff and the guardian as to the latter's having 
 previously attained his majority, the plaintiff 
 may be permitted to appoint a new and proper 
 
PRACTICE. 
 
 571 
 
 guardian to proceed in the action nunc pro tunc. 
 lb. 
 
 81. By husband and wife. In an action 
 against husband and wife, affecting only the 
 husband's real estate, in which the summons is 
 served on the husband alone, it his duty to have 
 an appearance entered for his wife, even with- 
 out authority from her, and she will be bound 
 thereby. Sup. Ct., 1871, Lathrop v. Heacock, i 
 Lans. 1. 
 
 32. By person not named as defendant. 
 The service of a summons and complaint by the 
 sheriff upon a person not named therein as de- 
 fendant, does not make him a party to the action ; 
 nor is it necessary for him to appearand answer 
 in order to save his rights or prevent the effect 
 of any judgment which the plaintiff could take 
 without notice of a motion to amend the sum- 
 mons and proceedings. Sup. Ct. Sp., T., 1872, 
 Abeel V. (Ponhyser, 42 How. 252. 
 
 33. If an attorney appears for a person so 
 served and puts in an answer, and on being in- 
 formed that it was not intended to hold such 
 person as a party, and requested to withdraw 
 the papers, refuses to do so, a motion to strike 
 them out is proper and necessary, and will be 
 granted with costs. lb. 
 
 34. Unauthorized appearance. A court 
 will refuse to proceed in an action instituted in 
 the name of a corporation by an attorney, when 
 it appears that he has no authority from the 
 corporation to appear for it, but is employed by 
 persons claiming not to have been rightfully 
 ousted from the directorship thereof. N. Y. 
 Supr. Ct. Sp. T., 1873, Hudson Eiv., etc., R. R. 
 Co. V. Kay, 14 Abb. N. S. 191. 
 
 35. 'Wiljidravj'al of. Where attorneys, au- 
 thorized to appear for a person in all actions 
 regularly commenced against him, put in an 
 appearance for him in a case, believing at the 
 time that the summons had been personally 
 served on him, when in fact it had not, and he 
 did not know that they had done so until after 
 the complaint was served, — Held, that the de- 
 fendant, upon his application showing those 
 facts, might properly be permitted to withdraw 
 his notice of appearance. Sup. Ct., 1874, Hunt 
 V. Brennan, 1 Hun, 213. 
 
 36. Stay. Proceedings on the part of the 
 plaintiff will not be stayed, on application of the 
 defendant on the ground that the attorney ap- 
 pearing for the plaintiff had no authority to 
 bring the action, unless there is actual fraud 
 upon the court, as, where the attorney uses in a 
 wrongful manner the name of the plaintiff with- 
 out his knowledge or consent. Sup. Ct., 1875, 
 Town of Delhi v. Graham, 3 Hun, 407. 
 
 37. Proceedings in an action brought in the 
 name of a town will not be stayed on the ground 
 of want of authority in its attorney, when it 
 appears that the pendency of the action was 
 known to the Inhabitants of the town, and had 
 been reported to the town at a town meeting 
 without opposition or objection. lb. 
 
 38. Bill of partdculars. It is only when an 
 action or defense is founded upon an " account," 
 using that term in the sense of one or more 
 entries of debits and credits in a book or on 
 paper, for things bought and sold, or services 
 performed, with date, and price or value, that 
 the adverse party is entitled to a bill of particu- 
 lars upon a mere written demand- N. Y. Supr. 
 Ct., 1874, Dowdney v. Volhening, 37 N. Y. Supr. 
 (5 J. & Sp.) 318. 
 
 39. When the claim is not upon such an ac- 
 count, as in case of a claim for unliquidated 
 damages for breach of a special contract, a bill of 
 
 particulars can be obtained only by order of 
 court. lb. 
 
 40. The question whether the case is one in 
 which a party upon whom such demand has 
 been made is bound to f urnisli the bill or be pre- 
 cluded from giving evidence of the items of his' 
 claim, should be determined before tlie trial, 
 and he may therefore properly move at Special 
 Term to have such demand stricken out. lb. 
 
 41. In an action for an accounting as to money 
 and property, the defendant is not entitled to a 
 bill of particulars, under sec. 168 of the Code, as 
 a matter of right ; and it is a proper exercise of 
 the discretion of the court to refuse it, where the 
 probability is that the defendant is as well ac- 
 quainted as the plaintiff with the nature and par- 
 ticulars of the claim, and has all the knowledge 
 necessary to enable him to answer the complaint. 
 N. Y. Supr. Ct., 1875, Powers v. Hughes, 89 N. Y. 
 Supr. (7 J. & Sp.) 482. 
 
 42. The court will not require the plaintiff to 
 furnish a bill of particulars, when it appears that 
 the books and papers from which it might have 
 been prepared have been destroyed at the insti- 
 gation of the defendant, so as to render it, to a 
 great extent, impossible for the plaintiff to furnish 
 it. Sup. Ct., 1875, People Y. Tiveed, 5 Hun, 353. 
 
 43. In an action by tlie people, under ch. 49, 
 Laws of 1876, to recover back moneys obtained 
 by frauds, the court should not require the peo- 
 ple to furnish a bill of particulars of the items in 
 each of the bills on which they were obtained, 
 which they claim to be false or fraudulent, when 
 the books and papers from which such particu- 
 lars must be made up, if in existence, are public 
 documents of the city, or the private books and 
 papers of the defendant and his confederates, 
 and therefore accessible to him. lb. 
 
 44. Where the complaint charges a conspiracy 
 to build up claims of many thousands, upon 
 legal items of very small amounts, tlie court will 
 not sift out the honest portion of each claim and 
 charge only the excess fraudulently obtained 
 against the defendant, but will treat the whole 
 transaction as vitiated by the fraud. lb. 
 
 45. In such an action an order, made on the 
 application of the defendant charged with the 
 fraud, requiring the plaintiff to amend the com- 
 plaint so that it shall specify what right or in- 
 terest in the premises the municipality " set up 
 or pretend to," is erroneous, since such defend- 
 ant has no interest in that question and can raise 
 no issue thereon. lb 
 
 46. — in action for tort. A bill of particulars 
 may properly be ordered in an action for a tort, 
 such as one for a fraudulent combination and 
 conspiracy by defendants to procure from the 
 plaintiffs a large amount of money, upon the 
 false pretense that they had furnished to the 
 plaintiffs for or their use, certain goods, for which 
 they presented false bills and vouchers. Sup. 
 Ct. at Chambers, 1876, Mayor, etc., of New York 
 V. Marrener, 49 How. 36. 
 
 47. The same rules in regard to granting orders 
 for bills of particulars prevail under the Code as 
 under the former practice. lb. 
 
 . 48. A bill of particulars is appropriate in all 
 descriptions of actions, when the. circumstances 
 are such that justice demands that a party should 
 be apprised of the matters for which he is to be 
 put on trial with greater particularity than is re- 
 quired by the rule of pleading ; and a court hav- 
 ing jurisdiction of an action for crim. con. has 
 power to order a bill of particulars in such ac- 
 tion, if it sees fit so to do. Ct. App., 1874, Tilton 
 v. Beecher, 48 How. 175. S. C, 59 N. Y. (14 Sick.) 
 176. 
 
5V2 
 
 PRACTICE. 
 
 49. "What Bufflcient. The office of a bill of 
 particulars is to apprise the defendant of the 
 items which the plaintifE intends to prove upon 
 the trial, and to restrict Ins proofs to the 
 matters specified , and if sufficiently specific and 
 definite for those purposes, that is all that is re- 
 quired. Ct. App., 1872, Matthews v. Hubbard, 47 
 N. Y. (2 Sick.) 428. 
 
 60. It need state no more than the plaintiff is 
 bound to prove under his complaint. The merits 
 cannot be inquired into upon tlie motion for the 
 bill i but if the specifications do not accord with 
 tlie facts, or omit matters essential to the piain- 
 tifE's case, the defendant can take advantage of 
 that upon the trial. lb. 
 
 61. Interpleader. Wliere, upon the sale of 
 real estate which had been entered for sale by 
 the owner with two real estate brokers, each of 
 such brokers claims commissions as being the pro- 
 curing cause of the sale, and they bring their sev- 
 eral actions therefor in the same court, it is a 
 proper case for an interpleader, and the defend- 
 ant may properly be permitted to deposit the 
 money in court, and the brokers be required to 
 interplead to try the question of right to the 
 commissions. N. Y. C. P., 1871, Dreyer v. Rauch, 
 42 How. 22 ; S. C, 3 Daly, 434 ; 10 Abb. N. S. 343. 
 
 62. The provisions of sec. 122 of the Code on 
 the subject of interpleader are applicable to the 
 District Courts of New York City. lb. 
 
 53. Discovery. Upon a proper application, 
 under sec. 388 of the Code, sliowing that books, 
 
 "papers and entries which contain evidence relat- 
 ing to the defense in an action are in the posses- 
 sion and under tlie control of the plaintiff, the 
 defendant may be granted an inspection and 
 copy of such books, papers, &c., and also a dis- 
 covery. N. Y. Supr., 1872, Central Nat. Bank of 
 N. Y. V. Clark, 34 N. Y. Supr. (2 J. & Sp.) 487. 
 
 54. A court or referee has power, by subpcena 
 dxices tecum, to compel a party to produce his 
 books and papers ; and upon their production, 
 will be in a position to and should determine 
 upon their admissibility in evidence. N. Y. Supr. 
 1871, Hollz V. Schmidt, 34 N. Y. Supr. (2 J. & 
 Sp.) 28. 
 
 65. An application for discovery should show 
 it to be necessary ; and it should not be ordered 
 where it appears that evidence of a better cha- 
 racter, as to the same facts, can be obtained from 
 other sources and from living witnesses. lb. It 
 must appear that such discovery is indispensably 
 necessary. Sup. Ct., 1874, Campbell v. Hoge, 2 
 
 Hun. 808. ; _ ,. . ^, 
 
 66'. Where the moving papers estaWisn the ex- 
 istence of evidence in books, papers and docu- 
 ments in possession of the adverse party, the 
 materiality of such evidence, the necessity of a 
 discovery, and the good faith of the application, 
 and those facts are uncontradicted, they need 
 not show that such evidence is indispensably 
 necessary, and that the party seeking the dis- 
 covery has not the means of establishing the 
 same facts by other avaiUble proof. N.Y.Su^. 
 Ct 1874 Whitwarth v. Erie R. li. Co., 61 N. I. 
 Supr- M- & Sp.) 437. 
 
 67 A provision in an order for discovery pro- 
 cured by a plaintiff that " in default of compli- 
 ance the defendant's answer shall be stricken 
 out," is in exact conformity to the rule. lb. 
 
 58. In an action for appropriating a trademark, 
 a discovery of plaintiff's books should be granted, 
 where Ihere is reason to believe that an inspec- 
 «on will show that its sales have not been exten- 
 sive rnough to make the subject matter of the 
 radem:rk%aluableasanarticeofmero^^^^^^^^^^ 
 or that the defendants are entitled to the traae 
 
 mark by reason of prior or cotemporaneous use 
 and sales. N. Y. C. P. Sp. T., 1869 ; Union Paper 
 Collar Co. V. Metropolitan Collar Co., 3 Daly, 171. 
 69. InasAiuch as the production of the books 
 and papers of a corporation cannot be compelled 
 by subpoena duces tecum, a discovery thereof may 
 properly be ordered in an action to which such 
 corporation is a party, when the application 
 shows that they contain material evidence which 
 cannot be obtained in any other way. N. Y. 
 Supr. Ct, 1874, Central Nat. Bank v. White, 37 N. 
 Y. Supr. (5 J. & Sp.) 297. 
 
 60. It is no answer to such an application to 
 say that the books contain entries falsely and 
 deceptively made by the cashier of the corpora- 
 tion, who is a defaulter and has absconded, so 
 that they cannot be explained. lb. 
 
 61. The inspection of books and papers is not ' 
 a matter of right, and the privilege will not be 
 granted, except in extreme cases, where the re- 
 fusal may involve the loss of a claim or defense. 
 Sup. Ct., 1876, Harbison v. Von Volkenburgh, 5 
 Hun, 464. 
 
 62. In an action by a salesman against his em- 
 ployers to recover his percentages, where he 
 was furnished with and accepted weekly state- 
 ments and semi-annual accounts during his em- 
 ployment, and had an opportunity to verify 
 them from the books and papers of his employ- 
 ers, and has been offered the privilege himself 
 of inspecting them, an order for discovery 
 should not be granted. lb. 
 
 68. In an action by the executors of a former 
 partner to set aside a sale of partnership assets 
 made by the testator to his co-partner on the 
 ground of fraud, and to have the property de- 
 clared to belong to them and the defendant 
 jointly, the plaintiffs are not entitled to a gener- 
 al inspection of the books of the firm before 
 judgment in their favor. Sup. Ct., 1870, Piatt 
 V. Piatt, 11 Abb. N. S. 110 ; S. C, 61 Barb. 62. 
 
 64. A book-keeper, in an action to recover for 
 his services, cannot have an inspection of the 
 books of the defendant to enable him to have 
 them examined by an expert, so that he may 
 testify from their appearance as to the value of 
 the services rendered in keeping them. The 
 proper way is to prove the performance of the 
 services, and the time occupied, and then prove 
 their value. Sup. Ct., 1875, Miner v. Gardner, 
 4 Hun, 132. 
 
 65. Order for, penalty for disobedience, 
 A party who has appeared and pleaded in an 
 action is entitled to notice, and has a right to be 
 heard before the granting of an order striking 
 out his pleading and precluding him from pros- 
 ecuting or defending the action. Ct. App., 1874, 
 Rice V. Ehle, 55 N. Y. (10 Sick.) 618 ; Eev'g S. 
 C, 46 How. 163 ; 66 Barb. 185. 
 
 66. Such party cannot be deprived of his right 
 to such notice, by the insertion in the order for 
 discovery of a statement of the penalty which 
 will follow a disobedience of such order ; and 
 present Supreme Court rule 20, so far as it au- 
 thorizes the granting of a rule absolute giving 
 effect to such an order, as of course, without 
 notice, is invalid. lb. 
 
 67. Examination of party before issue. 
 In a proper case, the examination of a party 
 contemplated by sec. 391 of the Code, may be 
 had as well before as after the joining of issue. 
 This right is recognized and regulated by new 
 rule 21. N. Y. C. P. Sp. T., 1872, Hadleg v. 
 Fowler, 12 Abb. N. S. 244. S. P., Sup. Ct. Sp. T., 
 1871, Havemeyer v. Ingersoll, 12 Abb. N. S. 301. 
 
 68. The judges in convention had power to 
 establish that rule, although it conflicts with 
 
PRACTICE. 
 
 573 
 
 previous decisions of the court, and it is binding 
 on them. Id. 301. 
 
 69. Such examination under sec. 391, and a 
 discovery of books and papers under see. 888, 
 cannot be joined in one proceeding. lb. 
 
 70. The examination of a party before issue 
 joined, can only be had eitlier to enable the 
 plaintiff to frame his complaint, or the defend- 
 ant to frame his answer. N. Y. Supr. Ct., 1873, 
 Winston v. English, 44 How. 498 ; S. C, 14 Abb, 
 
 N. S. 119 ; 35 N. Y. Supr. (3 J. & Sp.) 512 ; 
 Aff'g S. C, 44 How. 398. 
 
 71. The aflSdavit upon which the application 
 for an order of examination is based, must show 
 the materiality of the discovery sought for the 
 purpose of framing the pleading ; and unless it 
 does so the application should be denied. lb. 
 
 72. For that purpose it should set out the 
 complaint or its material allegations, and the 
 nature of the defense, and where no complaint 
 has been served, but an affidavit stating the 
 cause of action has been served with an order of 
 arrest, the material allegations of such affidavit 
 should be set out and the nature of the defense, 
 to enable the court to limit the examination to 
 that which is relevant and proper. lb. 
 
 73. A party cannot be compelled to submit 
 to an examination, under sees. 390, 391 of the 
 Code, on application of the adverse party, before 
 issue joined. Sup. Ct. 1873, Morgan v. Wkitta- 
 i:er, 14 Abb. N. S. 127. 
 
 74. Security for costs. It is not impera- 
 tively required by the statute that an order re- 
 quiring a non-resident plaintiff to file security 
 for costs be made, under all circumstances ; but 
 where security to pay all costs that may be 
 awarded to defendants, in case they recover 
 jodgment, has already been filed in some other 
 manner, the bond provided for by statute (2 R. 
 S. 620) should not be required. N. Y. C. P. Sp. 
 T., 1871, Woodward v. Stearns, 11 Abb.N.S. 445. 
 
 75. The usual undertaking given upon the 
 issuing of an attachment against the property of 
 the defendants, on the ground of their non-resi- 
 dence, is not, however, sufficient to dispense 
 with security for costs. lb. 
 
 76. Tlie court of original jurisdiction may, 
 in an action brought by one in a representative 
 capacity, require the plaintiff to give security 
 for costs, under sec. 817 of the Code, at any 
 period of the action, even pending an appeal to 
 the General Term from a j udgment ; and in the 
 latter case, may require security for both accrued 
 and future costs, or limit the requisition to those 
 accruing in the future. Ct. App., 1872, Gedney 
 V. Purdy, 47 N. Y. (2 Sick.) 676. 
 
 77. Section 115 of the Code, in providing that 
 infant plaintiffs shall appear by guardian, of 
 necessity repeals the provisions of the Revised 
 Statutes relative to suing by next friend, but 
 there is no provision of law whereby- such a 
 guardian can be compelled to give security for 
 costs. As a substitute therefor, sec. 316 of the 
 Code makes the guardian liable for costs. Sup. 
 Ct., 1870, tinner v. Grouse, 61 Barb. 289. 
 
 78. Changing place of trial. In a joint 
 action against the maker and indorser of a prom- 
 issory note, either defendant alone may demand 
 and have the place of trial changed to the proper 
 county, as to himself, without the other's con- 
 sent; the same as if separately sued. Sup. Ct., 
 1860, Sherman v. Gregory, 42 How. 481. 
 
 79. In such a case, the party who did not make 
 the demand may join in the motion, and have 
 the place of trial changed as to himself also. lb. 
 
 80. In an action against two defendants re- 
 siding in different counties, the plaintiff has the 
 
 option of selecting the place of trial in the coun- 
 ty of either defendant ; and the fact that only one 
 of the defendants appears will not entitle him 
 to have the place of trial changed to the county 
 where he resides. Sup. Ct., 1874, Forehand v. 
 Collins, 1 Hun, 316. 
 
 81. Under the provisions of sec. 124 of the 
 Code, one who is sued for acts done by him in 
 his capacity of a public officer is entitled as a 
 matter of right to have the place of trial changed 
 to the county where the cause of action arose, if 
 sued elsewhere, though at the time of the suit 
 he is no longer such officer. Sup. Ct. Sp. T., 
 1872, People v. Tweed, 13 Abb. N. S. 419. 
 
 82. To entitle the defendant to such privilege, 
 the suit must be for malfeasance or misfeasance 
 in such office, and not for mere nonfeasance., 
 lb. 
 
 83. The persons appointed by ch. 382, Laws 
 1870, to audit certain accounts against the city 
 of New York, were entrusted with a public duty 
 of importance and responsibility, and were there- 
 in denominated officers, and were officers with- 
 in the meaning and intent of sec. 124 of the Code, 
 and entitled to the privilege thereby secured as 
 to the place of trial of actions against them for 
 official acts. lb. 
 
 84. Where the complaint in an action against 
 a public officer charges acts of misfeasance in 
 office, lie cannot be deprived of the benefit of the 
 venue statute by charges therein that such acts 
 were fraudulent. lb. 
 
 85. The place of trial of a foreclosure action 
 cannot be changed for tlie mere convenience of 
 the justice trying it, but only for the causes 
 specified in sec. 126 of the Code ; and where 
 such change is made against the objection of a 
 defendant, he does not waive his objection by 
 afterward appearing on the trial. Ct. App., 
 1870, Birmingham Iron Foundry v. Hatfield, 43 
 N. Y. (4 Hand,) 224. 
 
 86. The power of a justice to adjourn a 
 special term to another county, does not author- 
 ize the transfer to such county for hearing and 
 trial of causes pending before it. lb. 
 
 87. A defendant, residing in Broome county, 
 N. Y., if sued in Madison county by a Massa- 
 chusetts corporation having a principal place of 
 business in the city of New York, is entitled, on 
 motion, to have the place of trial changed to the 
 county where he resides. Sup. CtSp.T., 1873, 
 Graver Sf Baker Sewing Machine Co. v. Kimball, 
 64 Barb. 425. But the defendant has not that 
 right where the plaintiff is, by a valid law, made 
 a resident corporation of this State for the pur- 
 poses of suits. Sup. Ct. Sp. T., 1874, Fall Brook 
 Coal Co. V. Lynch, 47 How. 520. 
 
 88. In case of a transitory action brought in 
 the name of the treasurer of an express com- 
 pany, not incorporated, against a person by 
 name who is president of another unincorporated 
 express company, those companies respectively 
 being the parties beneficially interested, in the 
 county where the former company has its prin- 
 cipal office, the nominal plaintiff being a resi- 
 dent of Massachusetts, the place of trial may 
 properly be changed to another county where 
 the nominal defendant resides, and where both 
 companies have offices. Sup. Ct., 1872, Bacon 
 v. Dinsmore, 42 How. 368. 
 
 89. A motion for a change of the place of 
 trial for the convenience of witnesses, made by 
 the plaintiff while his demurrer to the merits of 
 the defense is pending and to be determined be- 
 fore trial of the issue of fact, is premature, be- 
 cause the decision of the demurrer in favor of 
 the defendant may end the case, and render 
 
574 
 
 PRACTICE. 
 
 witnesses unnecessary. Sup. Ct. Sp. T., 1872, 
 Moore v. Pillshury, 43 How. 142. 
 
 90. Motion, when made. A motion to 
 change the place of trial, for any reason, must 
 be made with reasonable diligence after issue is 
 joined in the action. A motion to remove a 
 cause from the Superior to the Supreme Court 
 and change the place of trial, made nearly one 
 year after issue joined, and after two circuits 
 had passed at which the action might have been 
 tried, if the motion had been promptly made 
 and granted, — Held properly refused. Sup. Ct., 
 1874, Darragh v. McKim, 2 Hun, 337. 
 
 91. The motion for a change of the place of 
 trial to the proper county may be made before 
 issue joined, or at any time thereafter before 
 trial, or before judgment if no trial is had. Sup. 
 Ct., 1860, Sherman v. Gregorry,_ 42 How, 481. 
 
 92. No affidavit of merits is now required 
 in support of a motion by defendants, under sees. 
 123-126 of the Code, to change the place of trial 
 to the proper county, i. e. to the county where 
 some party to the action resides, sec. 46 of the 
 Judiciary Act of 1847 having been repealed by 
 sec. 17, ch. 470 of the same year (4 Edm. Stats. 
 584). lb 
 
 93. Effect of order. An order changing the 
 place of trial of a cause to another effects that 
 change at once, whether the clerk transfers the 
 papers or not. Sup. Ct. Sp. T., 1870, Fisk v. 
 Albany ^ Susq. R. R. Co., 41 How. 365. 
 
 94. Neither a subsequent chamber order to show 
 cause why the order making the change should 
 not be corrected.with a stay of proceedings mean- 
 time, and an order forbidding the clerk to trans- 
 fer the papers, nor an appeal from the order 
 making the change, can affect such change. lb. 
 
 95. After the place of trial of a cause has 
 been changed from the oity and county of New 
 York to some other county, no motion therein 
 can be heard in the first district. lb. 
 
 96. After a judge has settled an order chang- 
 ing the venue of a cause in his own language, 
 upon a hearing of both parties, no other court 
 is competent to correct such order. lb. 
 
 97. Offer of judgment. The offer of judg- 
 ment allowed by the Code is an unconditional 
 and unqualified offer of judgment for a certain 
 specified part of the relief demanded by the 
 plaintiff, with the costs of the action ; and the 
 term costs therein refers to and includes all 
 sums which by the statute relating.to costs may 
 be allowed the plaintiff. It therefore includes 
 an extra allowance, in cases where that is 
 proper. N. Y. Supr. Ct., 1871, Coates v. Goddard, 
 34 N. Y. Supr. (2 J. & Sp.) 118. _ 
 
 98. Where a defendant by his answer admits 
 part of the plaintiff's claim, and offers judgment 
 therefor, the plaintiff, although he rejects the 
 offer, may move for an order that the defendant 
 pay him the amount of such offer, and, under 
 sec. 244 of the Code as amended in 1857, such 
 motion should be granted. N. Y. Supr. Ct., 
 1875 Wireman v. Remington Sewing Mach. Co., 
 89N.Y. Supr. (7J. &Sp.)314. 
 
 99. Extension of time to ans-wer. No 
 extension of defendant's time to answer can be 
 irranted, without the filing of an affidavit of 
 merits. N. Y. C. P. Sp. T., 1871, Romaine v. 
 CornweH. 11 Abb. N. S. 430. 
 
 100 Extension of time to appear. An 
 extension of time to answer may be made without 
 nreiudice to the right to remove the cause to a 
 ?ourt of the United States, but there is no 
 
 granted. N. Y. C. P. Sp. T., 
 Berding, 15 Abb. N. S., 22. 
 
 1873, Bragetman v. 
 
 HL Sbrvicb of pleadings ; Substitutioit of 
 
 PAKTIBB, ETC. 
 
 authority for a stay of proceedings if such 
 extension is not granted. An extension of the 
 time to appear Is well as to answer cannot be 
 
 101. Service of answer. Where the clerk 
 of the defendant's attorneys, finding the ofilce of 
 plaintiff's attorneys closed at about six o'clock 
 P. M., induced the janitor of the building to open 
 it and admit him, and then left the answer on the 
 table of the managing clerk, — Held, that the 
 service was irregular and unlawful. Sup. Ct., 
 1875, Vail v. Lane, 4 Hun, 653. 
 
 102. The Special Term having set aside the 
 judgment entered by plaintiff in such acase, the 
 General Term modified the order so as to allow 
 the defendant to re-serve the answer as of the date 
 of the attempted service, with leave to plaintiff 
 to reply, demur, or make any motion on any 
 ground except the irregularity of the service. lb. 
 
 103. — of amended ansTver. After an 
 answer has been stricken out by the court as 
 sham, without any leave given to serve a new or 
 amended answer, the defendant has no right to 
 serve an amended answer without first obtaining 
 leave of court, and a judgment entered by the 
 plaintiff after returning an amended answer so 
 served will not be set aside on the defendant's 
 motion. N. Y. Supr. Ct. Sp. T., 1873, Schmid v. 
 Aguimhah, 46 How. 105. 
 
 104. — of supplemental complaint. The 
 right to serve a supplemental complaint is not 
 absolute, but rests in the sound discretion of the 
 court, and leave of court must first be obtained. 
 Sup. Ct., 1874, SoUr v. Fargo, 47 How. 288 ; 
 S. C, 1 Hun, 312. 
 
 105. Service of papers by mail should be 
 absolute and complete at the time of deposit in 
 the post office. A reservation or condition — 
 c. g., a notice on the envelope in which the paper 
 is enclosed directing it to be returned to the 
 parties sending it if not called for in five days — 
 
 vitiates the service. Sup. Ct. Sp. T., 1875, 
 
 Gaffney v. Bigelow, 48 How. 475. 
 
 106. Cross bill Under the Code there is no 
 necessity of a cross bill in any case, unless it is 
 to bring in other parties. Thus, in an action 
 for the construction of a will, where all the 
 parties interested in the estate are before the 
 court, a cross bill between some of such parties 
 is unnecessary. Sup. Ct. Sp. T., 187,3, American 
 Bible So. V. Stark, 45 How. 160. 
 
 107. Lis pendens. The right to file a notice 
 of lis pendens is given in all actions affecting the 
 title to real property. It is an absolute right, 
 not depending on the discretion of the court ; 
 and a notice once filed in a proper action, the 
 court can order it cancelled only when the action 
 shall be settled, discontinued, or abated. Ct. 
 App., 1873, Mills V. Bliss, 65 N. Y. (10 Sick.) 139. 
 
 108. An action upon a complaint alleging 
 fraudulent representations as to the value of 
 certain bonds taken in part payment for land, 
 and seeking to establish a lien upon the prem- 
 ises sold for the amount of such bonds, as for 
 unpaid purchase money, is an action affecting 
 the title to real property, and one proper for the 
 filing of notice of lis pendens. lb. 
 
 109. The irregularity of filing a notice of lis pen- 
 dens before the filing of the complaint is cured 
 by the filing of an amended lis pendens at the 
 same time with or subsequent to the filing of an 
 authorized amended summons and complaint, and 
 such amended notice is effectual as against sub- 
 sequent purchasers or incumbrancers. Sup. Ct 
 Sp. T., 1872, Daly v. Burchell, 18 Abb, N. S. 264. 
 
PRACTICE. 
 
 575 
 
 110. Substitution of parties. Upon the 
 consolidation of tlie city and county of New 
 York, by cli. 304, Laws of 1874, an order substi- 
 tuting the consolidated corporation in place of 
 the board of supervisors, in an action com- 
 menced by tlie latter, and then at issue, was 
 proper; and, as the complaint remained the 
 same after as before the order, such change did 
 not entitle the defendant to serve a new answer. 
 Sup. Ct., 1875, Board of Sups, of the Co. of New 
 York V. Tweed, 3 Hun, 682. S. P., Board of 
 Supervisors, etc., v. Miller, 4 Hun, 71. 
 
 ill. Tlie question of the validity of the act 
 making such consolidation can be determined on 
 the trial without new pleadings. lb. 
 
 112. The court has power where, pending an 
 action, a transfer is made of the interests of 
 part of several co-plaintiffs to the remainder, to 
 order the action continued in the name of the 
 assignees ; but whether, in such case, any ob- 
 jection which might have been made to an 
 improper joinder of plaintiffs as the action origin- 
 ally stood, can be insisted on, query 1 Ct. App., 
 1874, Getty V. Spaulding, 58 N. Y. (13 Sick.) 636. 
 
 113. Tlie marriage of a female plaintiff pend- 
 ing her action does not abate such action, and 
 the substitution of her newly acquired name is 
 a mere matter of form, and where the defend- 
 ant has consented that it may be made on the 
 entrj' of an order of reference, the formal order 
 may be entered nunc pro tunc at any time before 
 'judgment. An irregularity in the entry thereof 
 should be corrected by motion. Ct. App., 1875, 
 Mapes V. Snyder, 59 N. Y. (14 Sick.) 450. 
 
 114. An action against a commissioner of 
 highways to recover damages for an injury to 
 a horse, caused by a defect in a bridge which 
 he had negligently left unrepaired, although duly 
 and seasonably notified thereof, cannot be con- 
 tinued against his successor in office, he being 
 individually liable therefor. Sup. Ct. 1872, 
 fMment v. Haighl, 44 How. 1. 
 
 115. The right to continue against a successor 
 in office is limited to cases where a contract has 
 been entered into, or a liability incurred in be- 
 half of the town, &c., within the scope of the 
 officer's authority. (2 Edm. Stats, 496. lb. 
 
 116. — after deal^ of a party. Where one 
 of several defendants dies pending an appeal 
 from a judgment in favor of the plaintiff, and 
 the cause of action survives against his personal 
 representatives, but they cannot properly be 
 joined as co-defendants with the surviving de- 
 fendants, the proper practice is to move for a 
 severance of the action. Sup. Ct., 1874, Arthur 
 V. Griswold, 2 Hun, 606. 
 
 117. If, however, such representatives come 
 in voluntarily and are made defendants, prose- 
 cute the appeal and obtain a judgment ordering 
 a new trial, the court will not, on their applica- 
 tion, vacate the order of substitution. lb. 
 
 118. Where one of two defendants in an action, 
 the cause of which survives, dies after interloc- 
 utory judgment, and it appears that he was not 
 a necessary or even a proper party defendant, 
 the plaintiff may be permitted, on a motion for 
 that purpose, to drop the deceased defendant out 
 of the case and proceed against the survivor. 
 N. Y. Supr. Ct. Sp. T., 1875, Halstead v. Cockroft, 
 49 How. 342. 
 
 119. A motion to revive and continue an ac- 
 tion in the name of the representatives of a 
 deceased plaintiff must, under sec. 121 of the 
 Code, be made within one year after his death, 
 notwithstanding the plaintiff was under a stay 
 of proceedings, that not being within the stay. 
 Sup. Ct., 1875, In matter ofBatnbridge, 4 Hun, 674. 
 
 120. Substitution of attorney. A party 
 who shows no cause therefor except his own will 
 cannot insist upon it as his right to discharge 
 his attorney and substitute another, without 
 paying the costs earned by him. Sup. Ct. Sp. 
 T., 1873, BoardofSups. of Ulster Co. v. Brodhead, 
 44 How. 411. 
 
 121. Attorneys employed by a board of super- 
 visors cannot be discharged and another attorney 
 substituted, by their mere vote, without cause, 
 except upon payment of their reasonable claims, 
 which may be ascertained by a reference ; and 
 they are not bound to consent to a substitution 
 or to deliver up the papers, upon which they 
 have a lien, until such payment. lb. 
 
 122. The proceedings in an action must be 
 taken and conducted in the name of the attorney 
 of record. Before another attorney can act or 
 be heard in the cause, he must be regularly sub- 
 stituted of record. Same parties, 44 How 426. 
 
 123. Settling issues. In an action for di- 
 vorce on the ground of adultery, the issues as to 
 adultery must be settled before notice of trial 
 can be given, or the cause be placed on the ca- 
 lendar. N. Y. C. P. Sp. T., 1871, Leslie v. Leslie, 
 11 Abb. N. S. 811. 
 
 IV. Trial in geneeal. 
 
 1. Proceedings between issue and trial. 
 
 124. ITotice of trial, served by mail 16 days 
 before the day of trial, is good, although the 
 sixteenth day falls upon Sunday, and the notice 
 is for the succeeding Monday. Sup. Ct. Sp. T., 
 1871, Central Bank of Westchester Co. v. Alden, 
 41 How. 102. 
 
 125. Calendar. A defendant who has regu- 
 larly noticed a cause for trial, but through mis- 
 take has omitted to file a note of issue with tlie 
 clerk to have it put upon the calendar, may in 
 the discretion of the court at the trial term be 
 permitted then to file a note of issue and have it 
 put on the calendar ; but a motion therefor will 
 not be entertained after the first day of the cir- 
 cuit. Sup. Ct. Sp. T., 1872, Clinton v. Myers, 43 
 How. 95. 
 
 126. An action which has been sent back by 
 an appellate court for the trial of a single issue, 
 properly triable by jury, and considered by that 
 court as the only one remaining untried, will be 
 ordered to be placed on the circuit calendar, not- 
 withstanding objections raised that other issues 
 are involved and unsettled. Sup. Ct. Sp. T., 1873, 
 Vose V. Florida R. R. Co., 46 How. 424. 
 
 127. Election of proceeding. Where a 
 defendant set up plaintiff's breach of the con- 
 tract sued on as a bar, and also attempted to 
 plead damages sustained by that non-perform- 
 ance as a counterclaim, and the court, without 
 putting him to an election, so ruled as to render 
 the plea in bar inapplicable, his attempt to avail 
 himself of the damages as a counterclaim should 
 not prejudice his right to elect to use that breach 
 as a bar, when the court afterward so rules as to 
 put him upon an election. N. Y. Supr. Ct., 1871, 
 Alger v. Vanderpoel, 34 N. Y. Supr. (2 J. & Sp.) 161. 
 
 128. A complaint in an action to recover back 
 money obtained by fraud, which goes into details 
 in describing the process and progress of the 
 frauds charged, all of which lead up to the gen- 
 eral averment which constitutes the real grava- 
 men of the complaint, does not set up separate 
 and inconsistent causes of action, and the plain- 
 tiff cannot be compelled to elect between the 
 several allegations. Sup. Ct., 1875, People v. 
 Tweed, 5 Hun, 353. 
 
676 
 
 PRACTICE. 
 
 129. A suit to recover back the gross amount 
 so fraudulently obtained may be treated as em- 
 bracing but a single cause of action. lb. 
 
 130. If several causes of action are stated in a 
 complaint wliicli cannot properly be joined, the 
 defendant must demur, otherwise the plaintiff 
 may give evidence in support of all or either, 
 and have judgment for vphichever he establishes 
 by proof. A fortiori, he may do so when they 
 can legally be joined. Sup. Ct., 1872, Gillett v. 
 Borden, 6 Lans. 219. 
 
 131. Whfere several consistent defenses are 
 set up in an answer, the court has no power 
 to compel the defendant to elect on which he 
 will rely, and exclude evidence tending to sus- 
 tain the others. Sup. Ct., 1874, Kelly v. Donahue, 
 47 How. 62 ; S. C, 1 Hun, 112. 
 
 132. In an action for the price of property 
 sold, warranty and fraud may be set up together 
 as defenses, beingconsistent, and evidence given 
 to sustain both. lb. 
 
 133. The question when a defendant shall be 
 put to his election between inconsistent defenses, 
 whetlier at the opening or the close of the trial, 
 is discretionary with the court. Ct. App., 1874, 
 Southworth v. Bennett, 58 N. Y. (13 Sick.) 659. 
 
 134. Severance. The provision of ch. 211, 
 Laws 1835, that when a default is obtained 
 against a part of the defendants, the plaintiff 
 may proceed against the others as if the action 
 had been originally commenced against them 
 only, and tlie action should be thereby severed, 
 is inconsistent with the provisions of the Code, 
 and is tliercfore repealed by sec. 468 of that act. 
 Sup. Ct., 1871, Genet v. Lawyer, 61 Barb. 211. 
 
 135. Stay. Wliere It appears tliat the plain- 
 tiff has wilfully and fraudulently either des- 
 troyed or withheld from the defendant, written 
 evidence, material to the determination of tlie 
 rights of the latter, the court may properly stay 
 his proceedings until he shall produce sucli evi- 
 dence. N. Y. Supr. Ct., 1870, Premo v. Smith, 
 10 Abb. N. S. 90 ; S. C, 2 Sweeny, 467. 
 
 136. The Special Term has no power, in adjudg- 
 ing a defendant in a divorce suit in contempt for 
 disobedienue of an order for temporary alimony 
 to direct, as part of the punishment that his 
 appeal from such order be stayed until payment 
 of the money. Ct. App., 1871, Brinkley v. Brink- 
 ley, 47 N. Y. (2 Sick.) 40. 
 
 137. A stay of proceedings in an action for an 
 indefinite time, to await the result of an appeal 
 in another action, because, merely, of the hope 
 that the judgment may be reversed or modified, 
 is beyond the power of the court. Sup. Ct., 
 1874, Waring v. Yale, 1 Hun, 492. 
 
 138. Foa^onement of trial. An affidavit 
 for the postponement of a trial, which swears to 
 merits, to the absence of a witness, the mate- 
 riality of his testimony, due diligence and in- 
 ability to procure his attendance and a belief in 
 his probable attendance at the adjourned time, 
 is sufficient to entitle the party to a postpone- 
 ment if there is nqthing to contradict or impeach 
 tlie veracity of the statements, or cast suspicion 
 upon the application. N. Y. Supr. Ct., 1874, 
 Gregg v. Howe, 37 N. Y. Supr. (5 J. & Sp.) 420. 
 
 139. Upon appeal from an order denying a 
 motion to postpone, the court can only look at 
 what appears in the case ; hence, the opposing 
 facts or statements should be put in form to go 
 into the case. lb. 
 
 140. When a party obtains a postponement 
 of the trial of a cause on payment of costs, the 
 opposing patty may insist on having the trial 
 nroceed on his omission to pay ; or he may 
 waive that right, and either compel payment by 
 
 a precept in the nature of a Jieri facias, or in 
 case he succeeds in the action include tliem in 
 his general bill of costs. Sup. Ct. Sp. T., 1872, 
 Gamble v. Taylm; 43 How. 375. 
 
 141. In a case where the postponement was on 
 payment by defendant of costs and witness fees, 
 and he paid the other costs, leaving the witness 
 fees for future adjustment, — Hdd, that the 
 plaintiff on recovering judgment was entitled 
 either to a precept for the Collection of such 
 witness fees, or to include them in his general 
 bill of costs. lb. 
 
 142. Examination of party before trial. 
 An affidavit for the examination of a defendant 
 before trial, made by plaintiff's attorney, whicli 
 states that the cause is at issue, and is upon 
 contract and that "plaintiff desires to examine 
 the defendant as to matters material to the issue, 
 and where the defendant's place of business is, 
 held sufficient. N. Y. C.P., 1870, Baker v. Steph- 
 ens, 10 Abb. N. S. 1. 
 
 143. Affidavits to obtain an order for substi- 
 tuted service, under ch. 511, Laws 1853, (4 Edm. 
 Stats. 598), which show that the defendant is a 
 resident of the State, and has a place of busi- 
 ness within the jurisdiction of the court, which 
 is his only known place of business or residence, 
 and that due diligence had been used to obtain 
 service on him of an order to appear and be ex- 
 amined, but he could not be found, and was 
 evidently doing all in his power to evade service, . 
 is sufficient to authorize an order for such sub- 
 stituted service ; and such order cannot be 
 questioned collaterally upon a motion to vacate 
 an attachment issued for disobedience thereof. 
 lb. 
 
 144. A party cannot be compelled to attend 
 for examination before trial except upon five 
 days' notice, unless the time is shortened by 
 special order, which order must be served on 
 the attorney for such party. Notice of tlie ex- 
 amination must also be given to such attorneys 
 N. Y. C. P., Sp. T. 1872, Thaulev. Bitter, 13 Abb. 
 N. S., 439. 
 
 145. It is irregular to insert in the summons 
 for such examination a notice that if the party 
 fail to appear his answer will be stricken out ; 
 and the judge signing such notice cannot make 
 an order, exparte, striking out his answer on his 
 failing to appear. lb. 
 
 146. A party to an action may, under sec. 391 
 of the code be compelled to attend before a judge 
 for his examination as a witness before trial, in 
 whatever county he may be served with a sum- 
 mons and notice to attend for that purpose, al- 
 though he may be a resident of another county. 
 Sup. Ct., Sp. T., 1870, Todd v. Lamhden, 41 How. 
 230 ; S. C. 10 Abb. N. S. 383. 
 
 147. Upon the examination of a party as a 
 witness before a county judge, under sees. 390, 
 391 of the code, he may be required and com- 
 pelled by such judge to answer all questions 
 which relate to the issues raised by the plead- 
 ings in the action. Sup. Ct., Sp. T., 1872, Mudge 
 v. Gilbert, 43 How. 219. 
 
 148. A defendant who is so examined on ap- 
 plication of the plaintiff may be compelled to 
 answer questions relating to the defense inter- 
 posed by him, and not pertinent to the affirma- 
 tive claim made by the plaintiff's complaint, as 
 well as those relating to facts essential to make 
 out the plaintiff's case. lb. 
 
 149. A plaintiff suing for a libel in the publi- 
 cation of articles by defendants denouncing cer- 
 tain medicines prepared by him as nonsensical 
 quackery, which publication tlie defendants jus- 
 tify on the'ground that their charge is true, can- 
 
PRACTICE. 
 
 577 
 
 not, on examination before trial at the in- 
 stance of tiie defendants, refuse to answer spe- 
 cifically as to the ingredients of such medicines. 
 Sup, Ct., 1874, Richards v. Judd, 15 Abb. N. S. 
 184. 
 
 150. If a party refuses to answer a material 
 and proper question on his examination before 
 trial at tlie instance of the adverse party, his 
 pleading may be stricken out. lb. 
 
 161. Upon examination, before trial, of tlie 
 defendant in an action to set aside an assign- 
 ment to him on the ground that it fraudulently 
 preferred an alleged debt to the defendant which 
 did not in fact exist, and that alleged loans by 
 him to the assignor, on tlie security of notes of 
 otlier parties, were in fact purchases of such 
 notes, he may properly be required to answer 
 questions as to his disposition of such notes. 
 Sup. Ct., 1874, Dambman v. Buiterfield, 2 Hun, 
 284. 
 
 152. The word " person," as used in sec. 401, 
 subd. 7, of the Code, providing a compulsory 
 method for obtaining an affidavit to be used 
 upon a motion, does not include a party to the 
 action ; nor can a party, upon an application for 
 a discovery of books and papers, when a ques- 
 tion of fact arises and a reference is ordered, be 
 compelled to appear and submit to an examina- 
 • tion before the referee. Ct. App., 1874, Kingy. 
 Leighton, 58 N. Y. (13 Sick.) 383. 
 
 163. The only manner in which a party can 
 be compelled to submit to an examination at 
 the instance of the adverse party, is as a general 
 witness in the cause as prescribed by the code, 
 lb. 
 
 164. A corporation is "a party," within the 
 meaning of sec. 391 of the Code, and, under that 
 section, an order may be issued for the exami- 
 nation of the president of a corporation de- 
 fendant. N. Y. C. P., 1869, Carr v. Great 
 Western Insurance Company, 3 Daly, 160. 
 
 155. The provisions of sees. 390, 391 of the 
 Code for the examination of a party before trial, 
 do not authorize the issuing of a subpoena duces 
 tecum to bring up the party's books and papers. 
 The mode of obtaining the inspection and copy 
 of a particular paper is pointed out bv sec. 288 
 of the Code. N. Y. C. P., 1874, DeBary v. Stanley, 
 48 How. 349. S. P., Hauseman v. Sterling, 61 
 Barb. 347. 
 
 156. A summons, and not a subpoena, is the 
 proper process to compel the attendance of a 
 party upon an examination before trial; but 
 a subpoena duces tecum may at the same time 
 issue, to compel the production of books and 
 papers. N. Y. Supr. Ct., 1869, Centr&l Nat'l 
 Bank of N. Y. V.Arthur, 2 Sweeny, 194 
 
 157. Not a waiver of right to amend. 
 A party who proceeds to examine the adverse 
 party after issue joined and before trial does not 
 thereby waive the right to amend his pleading, of 
 course within the twenty days allowed for tliat 
 purpose, and such amendment cannot prevent 
 the adverse party from reading the evidence 
 already taken on the trial in his own behalf, 
 whether the examination is continued or not. 
 N. Y. Supr. Ct, 1874, Stilwell v. Kelly, 37 N. Y. 
 Supr. (5 J. &Sp.) 417. 
 
 158. Discontinuaiice. A plaintiff may, with 
 or without the consent of the defendants, dis- 
 continue his action, but he cannot thereby, with- 
 out their consent, deprive them of any rights 
 which they possessed on such discontinuance. 
 jS. Y. Supr. Ct. Sp. T., 1873, Cunningham v. White, 
 45 How. 486. 
 
 159. The right of a plaintiff to discontinue 
 after an answer setting up a counterclaim, and a 
 
 87 
 
 partial trial, is a qualified one, as to the allow- 
 ance of which, or the terms of such allowance, 
 the court may exercise its discretion. Sup. Ct., 
 1872, mider v. Boynton, 63 Barb. 547. 
 
 160. Where non-resident plaintiffs, after enter- 
 ing upon the trial of their action, and hearing 
 evidence on the part of the defendant, which 
 made them apprehensive that he would recover 
 a j udgment against them, attempted to negotiate 
 a settlement, but failing, left the court and the 
 state before process could be served on them, 
 an ex parte order discontinuing the action was 
 set aside by the court on motion of defendant, 
 lb. 
 
 161. An order of discontinuance, with costs, 
 entered by a plaintiff in open court with notice to 
 the defendant's attorney, is effectual for tlie pur- 
 pose of enabling the plaintiff to commence 
 another suit for the same cause, unless he neg- 
 lects to pay the costs when adjusted. Sup. Ct, 
 1875, People v. Tweed, 5 Hun, 382. 
 
 162. Until the defendant procures an adjust- 
 ment of the costs, the plaintiff is not in default 
 for not paying them. lb. 
 
 163. An agreement under seal between the 
 parties to a suit, made after the commencement 
 thereof, to submit all the matters involved therein 
 to the determination of arbitrators, and that all 
 proceedings in the action be stayed pending the 
 award of said arbitrators, does not have the 
 effect to discontinue the action, but it stays all 
 proceedings until the making of the award, 
 which will at once effect a final discontinuance of 
 the action. Sup. Ct, 1874, Jacoby v. Johnston, 1 
 Hun, 242. 
 
 164. By sheriff. The provision of sec. 232 of 
 the Code limiting the right of the sheriff to dis- 
 continue attachment proceedings commenced by 
 him, except " at such times and upon such terms 
 as the court or judge may direct," was designed 
 for the protection of the parties interested in the 
 debts attached, and he cannot properly be per- 
 mitted to discontinue when it will cause iniury 
 to such parties. N. Y. Supr. Ct. Sp. T., 1874, 
 O'Brien v. Merchants Ins. Co., 48 How. 13. 
 
 165. Terms of. A plaintiff has the right to 
 discontinue his suit, even though the defendant 
 has interposed a counterclaim ; but in such a 
 case he should not be permitted to go out of 
 court without making compensation to the de- 
 fendant for the expenses of the suit, and the 
 court may in its discretion require him to pay an 
 extra allowance in addition to taxable costs. 
 N. Y. C. P. Sp. T., 1871, Tubbs v. Sail, 12 Abb. 
 N. S. 237. 
 
 166. In an action for divorce brought by a 
 husband against his wife, after an order has 
 been made requiring him to pay temporary 
 alimony to his wife pending the suit, the plaintiff 
 will not be permitted to discontinue his suit 
 on payment of costs without compliance with 
 such order. Ct App., 1871, Leslie v. Leslie, 10 
 Abb. N. S. 64 ; Affi'g S. C, 3 Daly, 194. 
 
 167. Where it appears that the defendants 
 have procured the settlement of a cause, with the 
 design to deprive the plaintiff's attorney of his 
 costs, the court will not permit them to have the 
 benefit of a discontinuance, or of a supplemental 
 answer setting up the settlement, without pay- 
 ment of the costs of the action up to the time 
 of the motion. Dietz v. McC(fllum, 44 How. 
 493. 
 
 168. A plaintiff who obtains an order on Iiis 
 motion at special term, that the case he discon- 
 tinued on payment by him on demand of the de- 
 fendant's costs to be taxed, and of any extra 
 allowance which may be awarded him, with 
 
578 
 
 PRACTICE. 
 
 leave to the defendant to move therefor, is con- 
 cluded thereby, and cannot defeat the defendant's, 
 right to enter judgment by not paying iuclr 
 costs. Sup. Ct. Sp. T., 1872, Folsom v. Van 
 Wagner, 14 Abb. N. S. 44 ; Aff'd, 7 Lans. 309. 
 
 169. Vacating. Where the consent of the 
 defendant to a discontinuance of the action is 
 obtained under a misapprehension of facts, the 
 order of discontinuance may, in the discretion of 
 the court be vacated on his motion. Sup. Ct., 
 1874, Winship v. Winship, 1 Hun, 820. 
 
 170. If by stipulation between a plaintiff 
 and his attorney, and an insolvent defendant, 
 an order of discontinuance without costs is 
 entered, after notice from defendant's attorney 
 forbidding discontinuance without payment of 
 his costs, the court may properly, on his motion, 
 vacate such order, unless the plaintiff shall pay 
 the costs of such attorney. Sup. ^ Ct., 1872, 
 Warmer v. Canovan, 7 Lans. 36. 
 
 171. The action is not discontinued, except as 
 between the parties, until the order therefor 
 is entered, and notice of a claim for costs before 
 entry of the order is sufficient, unless the plain- 
 tiff has paid something of value for the consent 
 to discontinue. lb. 
 
 2. Proceedings on the trial. 
 
 172. Trial by jury. In equitable actions a 
 trial of the issues of fact by a jury is not a mat- 
 ter of right, but the court has a discretion to or- 
 der the whole issue, or any specific question of 
 fact involved therein, to be tried by a jury. 
 Buff. Supr. Ct., 1872, Paul v. Parshall, 14 Abb. 
 N. S. 138. 
 
 173. The power of the court at the trial to 
 order issues to be so tried is not affected by 
 rule 40, which merely prescribes how an ap- 
 plication therefor may be made before the hear- 
 ing, lb. 
 
 174. Where the parties to an action which is 
 essentially of an equitable character, go to trial 
 at the circuit before the court and jury without 
 objection, and at the close of the case submit to 
 the jury certain questions of fact to be passed 
 upon by them, they thereby consent to that 
 form of trial and waive the right to a different 
 form, and on motion for a judgment upon the 
 special verdict of the jury the defeated party 
 cannot object that there has been no proper 
 trial. Sup. Ct. Sp. T., 1872,' Smith v. Osborn, 45 
 How. 351. 
 
 175. Where legal and equitable causes of ac- 
 tion are united in the same complaint, and is- 
 sues joined thereon, all of such issues must be 
 tried by jury, unless they be referred and a 
 jury be waived. Sup. Ct., 1871, People v. Albany 
 and Susq. R. R. Co., 6 Lans. 25 ; Aff'd, S. C, 57 
 N. Y. {12 Sick.) 161. 
 
 176. The defendant in such a case does not 
 waive his right to a trial by jury, by waiting 
 until after the plaintiff had read his pleadings 
 and rest,ed without examining any witness, at a 
 special non-jury term, for which he had noticed 
 tlie case, before objecting or asking for a jury. 
 S. C, 57 N. Y. (12 Sick.) 161. 
 
 177. Whether a party entitled to a trial by 
 jury can be precluded of that right in any man- 
 ner other than those pointed out by sec. 266 of 
 the Code,- unless it be by failing entirely to ob- 
 ject, ytierel He cannot be deprived of it by a 
 mere technicality. lb. . , . , 
 
 178 Equity cases, or cases m which an equit- 
 able defense is interposed to a purely legal 
 claim, may in the discretion of the court be tried 
 by a jury, or the court may try before the jury 
 
 an}' issue properly coming before it and reserve 
 any issue to be tried before the other brancli of 
 the cour¥, suspending the judgment in the mean- 
 time if necessary. N. Y. Supr. Ct., 1874, Sturm 
 V. Atlantic Mut. Ins. Co., 38 N. Y. Supr. (6 J. & 
 Sp.) 281. 
 
 179. In an action to remove a cloud on title, 
 the court may at the trial, order questions to be 
 tried by a jury, when it is apparent that their 
 determination will depend upon conflicting evi- 
 dence. Sup. Ct., 1875, Zimmerman v. Schoen/eldt, 
 3 Hun, 692. 
 
 180. This may be done in such a case where 
 the complaint contains the necessary allega- 
 tions to authorize that equitable relief, even 
 though the prayer of the complaint is in eject- 
 ment ; and it may be done in every case em- 
 braced within sec. 254 of the Code. lb. 
 
 181. Challenging jurors. Upon a challenge 
 to the poll a juror who is cousin to the plaintiff 
 may be excluded as incompetent ; but his relar 
 tionship does not affect the jurisdiction of the 
 court, and in the absence of proof that injustice 
 has been done, the objection will be deemed 
 waived by not being made in time. Sup. Ct., 
 Sp. T., 1873, Bayes v. Thompson, 16 Abb. N. S. 
 220. 
 
 All challenges oj" jurors are to be tried by the 
 court. Ch 427, Laws of 187S. 
 
 182. Talesmen. Under the provisions of 2 
 R. S. 420, sec. 54 (2 Edm. Stats. 437), as modi- 
 fied by ch. 210, Laws 1861 (4 Edm. Stats. 649), 
 talesmen can be summoned only for a single 
 case, ready and moved for trial, and they can 
 be summoned from the bystanders only by con- 
 sent of parties. In other cases, the panel can 
 be filled only by drawing from the box of jurors 
 of the city or town where the court is held. 
 The act of 1861 is not affected by ch. 409, Laws 
 of 1870 or ch. 16 of 1871. Sup. Ct., 1876, Shields 
 V. Niagara Savings Bank, 3 Hun, 477. 
 
 183. Opening and closing. In an action 
 by several plaintiffs to recover a debt for goods 
 purchased of them by several defendants, an 
 allegation in the complaint that the plaintiffs 
 were copartners at the time of the sale and also 
 at the commencement of the suit, with a denial 
 of such partnership in the answer, forms an im- 
 material issue, if the answer admits the pur- 
 chase and sets up an affirmative defense there- 
 to ; and in such case the defendants are entitled 
 to open and close at the trial. Ct. App., 1874, 
 Millerd V. Thorn 16 Abb. N. S. 371 ; S. C, 66 N. 
 Y. (11 Sick.) 402. 
 
 184. The right of the party holding the af- 
 firmative to open and close is a legal right, and 
 a refusal thereof may be excepted to and re- 
 viewed on appeal from the judgment. lb. 
 
 185. Where the case stated in a complaint 
 upon a money demand on contract is admitted, 
 and nothing remains to be done to entitle plain- 
 tiff to a complete judgment in his favor but a 
 mere computation of interest, the defendant, 
 upon an affirmative defense set up in his an- 
 swer, has the right to open and close. N. Y. C. 
 P., 1872, Brennan v. Security Life Ins. Co., 4 Daly, 
 296. 
 
 186. In an action on a promissory note, where 
 the answer admits the making, delivery and 
 transfer of the note, but denies indebtedness or 
 liability, and alse denies that the plaintiff is the 
 real party in interest, and sets up affirmative 
 defenses, the defendant is entitled to the affirm- 
 ative on the trial, since such denials do not raise 
 any issue of fact.. Sup. Ct., 1874, Morss v. Glea- 
 son. 2 Hun, 31. 
 
 I 187. An answer, in an action on an insurance 
 
PRACTICE. 
 
 579 
 
 policy, a copy of which ia set forth in the com- 
 plaint, admitting " each and every allegation of 
 the complaint, except that they deny tliat the 
 paper marked A annexed to the complaint is a 
 lull and complete. copy of the policy issued by 
 them," in substance and effect denies the mak- 
 ing of tlie contract set up in the complaint, and 
 tlie plaintiff is entitled to open and close the 
 case. Sup. Ct, 1875, Hunter v. Am. Popular L. 
 Ins. Co., 4 Hun, 794. 
 
 188. Nonsuit, motion for. Although a 
 motion for a nonsuit is made upon two grounds 
 stated disjunctively in the same sentence, one 
 of which is bad and the other good, a refusal to 
 dismiss is error, for whieii a new trial will be 
 granted. N. Y. Supr. Ct., 1873, Goodrich y. 
 Sweeny, 86 N. Y. Supr. (6 J. & Sp.) 320. 
 
 189. A motion for nonsuit in an action 
 against a life insurance company, on the ground 
 that it was not proved that tlie conditions of the 
 policies as to payments were waived, or time of 
 payment extended by the defendant or any per- 
 son authorized to do so in its behalf, does not 
 present tlie question whether the evidence in- 
 troduced to show those facts was competent. 
 Sup. Ot., 1874, Dean v. ^tna Life Ins. Co., 48 
 How. 36 ; S. C, 2 Hun, 358. 
 
 190. After once denied. It is not of itself 
 error for the court, upon its own motion, to non- 
 suit a plaintiff, after a motion to that effect has 
 been denied and after the defendant has entered 
 upon his defense ; but it is the duty of the judge, 
 believing that he has committed an error, to 
 correct it at the earliest opportunity. Com. App., 
 1873, FUch V. Hassler, 64 N. Y. (9 Sick.) 677. 
 
 191. Presumptions in favor of plaintiff. 
 On a motion for a nonsuit, all disputed facts are 
 to be decided in favor of the plaintiff, and all 
 presumptions and inferences which he lias a 
 right to ask from tlie jury upon the evidence 
 produced by him are to be conceded to him. N. 
 Y, Supr. Ct., 1873, Myers v. Dixon, 45 How. 48 ; 
 S. C, 35 N. Y. Supr. (3 J. & Sp.) 390. 
 
 192. wnen proper. If a nonsuit is proper, on 
 any ground apparent upon the facts stated, it will 
 be sustained, though it may have been granted 
 upon an improper ground or for a wrong reason. 
 Sup. Ct., 1872, Beckwith v. Whalen, 5 Lans. 376, 
 
 193. Insu£Sciency of complaint. An ob- 
 jection to the sufficiency of the complaint is not 
 waived, by omitting to raise it by answer or 
 demurrer ; but it may be raised on the trial, by 
 motion for a nonsuit. N. Y. C. P., 1869, Aberna- 
 ihy V. Society of the Church of the Puritans, 3 
 Daly, 1. • 
 
 194. Justification. Where a justification 
 of the act of the defendant is established by'tlie 
 positive testimony of nnimpeaehed, uncontra- 
 dicted witnesses, the court should grant a non- 
 suit and not submit the question to the jury. 
 Sup. Ct., 1871, Robinson v. Jlfc J/anus, 4 Lans. 380. 
 
 195. Contributory negligence. Although 
 the question of negligence is generally one of 
 fact for the jury, yet, where there is no conflict 
 of evidence, and the plaintiff was clearly guilty 
 of contributory negligence, a nonsuit should be 
 granted. N. Y. C. P., 1873, Van Lien v. Scoville 
 Manuf. Co., 14 Abb. N. S. 74 ; 4 Daly, 554. S. 
 P., McLain v. Van Zandt, 39 N. Y. Supr. (7 J. & 
 Sp.) 347 ; Aff'g S. C, 48 How. 80 ; Van Schaick 
 V. Hudson Riv. R. R. Co., 43 N. Y. (4 Hand,) 527. 
 
 196. Negligence not established. In an 
 action for an injury caused by negligence, where 
 tlie evidence on the part of the plaintiff does not 
 establish negligence on the pa,rt of the defend- 
 ant, but is equally or more consistent with the 
 absence of such negligence on his part, the court 
 
 may properly nansuit the plaintiff. Ct. App., 
 1874, Baulec v. New York ^ Harlem rifcjS. Cot;. 
 48 How. 399; S. C, 59 N. Y. (14 Sick.) 356. 
 
 197. In an action to recover damages from a 
 railroad company for personal injuries alleged 
 to have been sustained in consequence of the 
 negligence of defendant's servants, if the evi- 
 dence of the plaintiff leaves it in doubt whether 
 she fell off or was pushed off the car, and wlieth- 
 er, if pushed off, the conductor or some third 
 person pushed her, the complaint sliould be dis- 
 missed. N. Y. Supr. Ct, 1871, Pixley v. Third 
 Ave. R. R. Co., 33 N. Y. Supr. (IJ. & Sp.) 406. 
 
 198. In an action to recover damages for caus- 
 ing the death of a child by negligence, a non- 
 suit may properly be granted where, at the time 
 of the motion, there is not suflScient evidence 
 either of the negligence of the defendant, or of 
 the absence of concurrent negligence on the 
 part of the plaintiff, to warrant a verdict in his 
 favor. The error of refusing it, in sucli a case, 
 will be cured if the deficiency is afterward sup- 
 plied. N. Y. Supr. Ct., 1873, Squire v. Cent. 
 Park N. ^ E. Riv. R. R. Co., 36 N. Y. Supr. 
 (4 J. &Sp.)436. 
 
 199. In an action against a railroad company 
 for an injury to an employe, alleged to have 
 been caused by the negligence of the defendant, 
 a non-suit may properly be granted, if the evi- 
 dence on the part of the plaintiff is not suiScient 
 to justify a finding tliat there was no negligence 
 on his part; or if it shows that the injury was 
 caused by the negligence of another employe 
 for which, within the rule of law, the company 
 is not liable. N. Y. Supr. Ct., 1874, Sammott v. 
 N. Y. Sr Hud. Riv. R. R. Co., 38 N. Y. Supr. (6 
 J. & Sp.) 414 ; Aff'd S. C, 49 How. 348. 
 
 200. In an action against a railroad company 
 to recover damages for the death of one of its 
 engineers, caused by his train running off at a 
 misplaced switch, where the uncontradicted 
 evidence showed that a patent switch which 
 proved insecure had recently been taken out 
 and the common one at which the accident oc- 
 curred placed there at the request of the de- 
 ceased, and no specific request was made at the 
 trial to submit the question whether suc'h change 
 was made at his request, — Held, that the failure 
 to submit it was not error, and a nonsuit was 
 properly granted. Ct. App., 1874, Piper v. N. 
 Y. Cent. Sf Hud. Riv. R. R. Co., 56 N. Y. (11 
 Sick.) 630. 
 
 201. In an action against a warehouseman to 
 recover for property left with him as such, and 
 alleged to Iiave been lost through his negligence, 
 although the burden of proof rests upon him to 
 explain and account for the loss, yet when he 
 does fully and satisfactorily explain the manner 
 of it, by evidence which shows that he did not 
 contribute to it by any neglect or want of pre- 
 caution on his part, and there is no proof on the 
 other side from which his negligence could be 
 inferred, he is entitled to a non-suit. N. Y. 
 Supr. Ct., 1873, Coleman v. Livingston, 45 How. 
 483 ; S. C.,_36 N. Y. Supr. (4 J. & Sp.) 231. 
 
 202. ^Variance. In an action for trespass on 
 land, where the proof is sufficient to sustain an 
 action for waste but not one for trespass, and 
 the complaint does not contain the necessary 
 allegations for an action of waste, and no ap- 
 plication is made to conform the pleading to the 
 proofs, or to apply the law to the undisputed 
 facts, the complaint may properly be dismissed. 
 Sup. Ct., 1871, Tracy v. Ames, 4 Lans. 500. 
 
 203. Want of prosecution. The failure of 
 a plaintiff, for more than four years, to place his 
 cause upon the calendar, so that it can be 
 
580 
 
 PRACTICE. 
 
 brought to trial when reached in its order, ac- 
 cording to the course and practice of the court, 
 entitles tlie defendant to a dismissal of the com- 
 plaint, unless it is shown that such dismissal will 
 work irreparable injury to the plaintiff. N. Y. 
 Supr. Ct., 1869, Garter v. Clark, 2 Sweeny, 189. 
 
 204. The only remedy of a sole defendant for 
 the failure of the plaintiff to bring his cause to 
 trial, is to notice it for trial on his part, and take 
 a judgment of dismissal if the plaintiff fails to 
 appear when called. Sup. Ct., Sp. T., 1872, 
 Winchell v. Martin, 14 Abb. N. S. 47. 
 
 205. The dismissal of a complaint for plain- 
 tiff's neglect to bring the cause to trial is author- 
 ized, by subd. 4, sec. 274 of the Code, only when 
 the delay is unreasonable ; and the court is not 
 absolutely bound to dismiss it, even though the 
 delay be shown to be unreasonable, but may 
 give the plaintiff on opportunity to bring it tb 
 trial afterward upon such terms as may be just. 
 Sup. Ct., Sp. T., 1871, Perkins v. Butler, 42 
 How. 102. 
 
 206. The court might even refuse to entertain 
 a motion to dismiss, in a case where the defend- 
 ant has it in his power to bring the cause to trial 
 as soon as reached, according to the course and 
 practice of tlie court ; but in view of the fact 
 that recent statutes require the payment of $15, 
 upon placing a cause on the calendar, which 
 primarily devolves upon the plaintiff, and ought 
 not to be required of the defendant, it is proper 
 to entertain such motions. lb. 
 
 207. When not allowable. Where, in an 
 equitable action, issues have been framed and 
 their trial ordered by jury, the court has no 
 power, on the trial tliereof, to non-suit the plain- 
 tiff; but the jury must pass upon the issues, and 
 their finding must be presented to the court 
 upon the final hearing. Com. App., 1872, Bird- 
 sail y. Patterson, 51 N. Y. (6 Sick.) 43. 
 
 208. An order dismissing the complaint can- 
 not be made upon the trial of issues settled in 
 an equity action ; but on such trial, a verdict 
 upon all the issues as to all the parties should be 
 rendered, and the cause afterward heard by the 
 court upon the verdict and other competent evi- 
 dence produced by the parties. Ct. App., 1873, 
 Moore v. Metropolitan National Bank, 55N. Y. (10 
 Sick.) 41. 
 
 209. When improper. The appointment of 
 a receiver of an insurance company, pending an 
 action by such company as plaintiff, merely op- 
 erates to transfer to him the cause of action, and 
 the action may therefore, under sec. 121 of the 
 Code, be continued in the name of the original 
 party ; and an order dismissing the complaint, 
 obtained by the defendant when the cause was 
 regularly called on the calendar, without substi- 
 tution of the receiver as plaintiff, is not irregu- 
 lar on that account. Sup. Ct., Sp. T., 1872, 
 Albany City Fire Ins. Co. v. Van Vranken, 42 
 How. 281. 
 
 210. Defect of parties defendant. The 
 objection that there is a defect of parties de- 
 fendant must be taken by demurrer, if it ap- 
 pears on the face of the complaint, otherwise by 
 answer, and it cannot be made for the first time 
 at the trial and the complaint dismissed on that 
 ground. N. Y. Supr. Ct., 1871, Modes v. Dy- 
 mock, 33 N. Y. Supr. (1 J. & Sp.) 141. 
 
 211 If a complete determination of the con- 
 troversy cannot be had without the presence of 
 other parties, the court should cause them to be 
 brought in, either on its own motion or that of 
 a party, and make such order in the premises as 
 will preserve the rights of all parties interested, 
 lb. 
 
 212. Inartificial pleading. A complaint 
 should not be dismissed at the trial, because in- 
 artificially drawn and containing some allega- 
 tions proper for an action ex contractu and others 
 proper for one ex delicto, if the facts alleged iu 
 it constitute a cause of action and are substan- 
 tiated by proof. Brooklyn City Ct., 1871, Bead 
 V. Lambert, 10 Abb. N. S. 428. 
 
 213. Evidence, conflicting. In a case 
 where the evidence as to material and contested 
 facts is very conflicting, they should be left to 
 the jury, and a dismissal of the case ought not 
 to be granted. N. Y. Supr. Ct., 1873, Beudel v. 
 Bettrick, 45 How. 198 ; S. C, 35 N. Y. Supr. (3 
 J. & Sp.) 405. 
 
 214. It is only where there is no evidence in 
 law, which, if believed, will sustain a verdict, 
 that the court should grant a non-suit. It is not 
 enough to justify it, that the court might, in the 
 exercise of its discretion, grant a new trial upon 
 a case made. Ct. App., 1872, Colt v. Sixth Ave. 
 R. R. Co., 49 N. Y. (4 Sick.) 671 ; Aff'g S. C, 
 33 N. Y. Supr. (1 J. & Sp.) 189. 
 
 215. A complaint should not be dismissed for 
 the non-production of the instrument sued on, 
 or of secondary evidence of its contents after 
 excusing its non-production, where the answer 
 admits the making of the instrument, and the 
 defendant puts it in evidence. N. Y. Supr.Ct., 
 1875, O'Brien v. Commercial F. Ins. Co., 38 N. 
 Y. Supr. (6 J. & Sp.) 517. 
 
 216. IVUsjoinder of plaintiffs. The objec- 
 tion that two persons, showing no joint interest 
 in property, but each showing title to a part 
 thereof in severalty, cannot join as plaintiffs in 
 an action for the conversion of the whole, can- 
 not properly be taken by motion for a non-suit 
 as against both. Sup. Ct., 1875, Fuller v. Fuller, 
 5 Hun, 695. 
 
 217. A misjoinder of plaintiffs is not good 
 ground for dismissing the complaint of both, if 
 either has shown a good cause of action ; but, 
 in such case, the motion should be for a dis- 
 missal of the complaint of the plaintiff, in whom 
 no right of action appears. Ct. App., 1873, (Si- 
 mar V. Canaday, 53 N. Y. (8 Sick.) 298. 
 
 218. Although it may appear, on the trial of 
 an action by husband and wife, for the unlawful 
 taking of personal property, claimed to belong 
 to them jointly, that the same was bought with 
 money earned by the wife's labor and money 
 contributed by the husband, yet the complaint 
 should not be dismissed as to both, on the ground 
 that the wife has no interest in the property, 
 since, under sec. 274 of the Code, judgment may 
 be given in favor of that one of several plaintiffs 
 in whom there appears to be a cause of action. 
 N. Y. Supr. Ct., 1873, Chambovet v. Cagney, 35 N. 
 Y. Supr. (3 J. & Sp.) 474. 
 
 219. One party not served. In an action 
 by judgment creditors to reach the joint prop- 
 erty of partners who had assigned the same, it 
 is no ground for a dismissal of the complaint or 
 for a non-suit, that one of such assignors, though 
 named as a party, had not been served with pro- 
 cess nor appeared, since the action may, under 
 sec. 136 of the Code, proceed without service on 
 him. Sup. Ct., 1871, Yates v. Lyon, 61 Barb. 205.- 
 
 220. Negligence. On a question of non- 
 suit, all disputed facts are to be decided in favor 
 of the plaintiff, and all presumptions and infer- 
 ences which he had a right to ask from the jury 
 are to be conceded to him. Therefore, to justify 
 a non-suit in an action for injuries caused by neg- 
 ligence, where the evidence raises the questions, 
 whether the defendants were guilty of negli- 
 gence, and whether the plaintiff was guilty of 
 
PRACTICE. 
 
 581 
 
 contributory negligence, one of those questions 
 must be held against the plaintiff, and so clearly 
 that there is no room for doubt. N. Y. Supr. Ct., 
 1871, Ward v. Central Park, North and East 
 R!v. R. R. Co., 42 How. 289 ; S. C, 11 Abb. N. 
 S. 411 ; 33 N. Y. Supr. (1 J. & Sp.) 392. 
 
 221. In an action against the owners of a tug- 
 boat to recover damages for an injury to plain- 
 tifi's pier, on East river, caused by a barque in 
 tow striking it, evidence that there was at that 
 point a strong eddy setting in towards the shore, 
 and carrying objects within its influence to- 
 wards or against tlie pier, that the existence of 
 such eddy was notorious, and that the barque 
 was being towed by a very long hawser, and was 
 brought within the influence of the eddy, made 
 a sufficient prima yhcte case of negligence on the 
 part of the defendants to call for the submission 
 of the question to the jury, and a non-suit was 
 improper. N. Y. Supr. Cl, 1874, Repplier v. Bax- 
 ter, 37 N. Y. Supr. (5 J. & Sp.) 105, 
 
 222. Evidence, in such a case, showing that 
 the collision was caused by mismanagement on 
 board the barque, would justify the non-suit, if 
 the persons in cliarge of her were not the ser- 
 vants of the defendants, but mere proof that there 
 were persons on board the barque, and that one 
 man stood at the wheel, without proof that they 
 or any of them did any act to which tlie injury 
 could be attributed, is not sufficient. lb, 
 
 223. Right to jury trial. An objection, 
 raised at the close of the testimony after a trial 
 by the court, that the constitution entitles the 
 defendant to a jury trial, is no ground for grant- 
 ing a nonsuit. Com. App., 1872, McKeon v. See, 
 61 N. Y. (6 Sick.) 300 ; Afi'g 4 Bob., 449. 
 
 224. TTuconscionable agreement. In an 
 action for the breach of a contract by defendant 
 to procure and deliver the plaintiff a certificate 
 for certain shares of stock in a corporation of 
 which he was an officer, where it is not alleged 
 nor proved that the defendant acted or professed 
 to act for the corporation, the mere fact that the 
 price agreed to be paid for the stock is inade- 
 quate, does not show that the agreement is un- 
 conscionable on the part of the plaintiff, or in 
 fraud of the corporation or its members. Ct. 
 App., 1874, Graves v. Watte, 69 N. Y. (14 Sick.) 
 166. 
 
 225. When a motion to dismiss a complaint is 
 based upon ground which is untenable, and there 
 is no other ground for it which cannot be ob- 
 viated, the motion shotdd be denied. N. Y. Supr. 
 Ct., 1875, Ramor v. Hoagland, 39 N. Y. Supr. (7 
 J. & Sp.) 11. 
 
 226. Variance. In an action on contract, 
 where a supplemental contract, not mentioned 
 in the pleadings, modifying the liability of the 
 defendant, is shown by tlie proofs, but no claim 
 is made that the defendant has been misled or 
 injured, the variance is not ground for a nonsuit. 
 Sup. Ct., 1872, Marsh v. Dodge, 5 Lans. 541. 
 
 227. It is not good ground for a nonsuit, that 
 ttie complaint contains an allegation wliich would 
 be proper for an action in tort, and that the evi- 
 dence shows a contract, or a different cause of 
 action, if the facts alleged were sufficient to 
 constitute a cause of action and were proved. 
 Sup. Ct., 1874, Veeder v. Cooley, 2 Hun, 74. 
 
 228. Want of parties. A bill in equity 
 may, in the discretion of the court, be dismissed 
 for want of parties, if after timely objection 
 the plaintiff fails to bring them in ; but, in such 
 case, the dismissal should be without prejudice to 
 a new action, and an unqualified dismissal is 
 error, and is subject to review. Ct. App., 1873, 
 Sherman y. Parish, 63 N. Y. (8 Sick.) 483. 
 
 229. It seems, where the same end may be 
 thereby reached, that the better practice is to 
 allow the cause to stand over on such terras as 
 are equitable, until the plaintiff shall bring in all 
 the necessary parties, rather than to dismiss the 
 complaint, even without prejudice. lb. 
 
 230. Order denying. An order denying a mo- 
 tion for a nonsuit need not specify tlie grounds. 
 So long as any good ground exists, tliat is suffi- 
 cient and will sustain the order. Com. App., 
 1874, Williams v. Mechanics and Traders Fire 
 Ins. Co., 54 N. Y. (9 Sick.) 577. 
 
 231. Trial by jury. An issue of fact in an 
 action for divorce on the ground of adultery 
 must, under sec. 253 of the Code, be tried by 
 jury, unless a jury trial is waived or a reference 
 is ordered by consent of both parties. It cannot 
 be determined on a special motion, founded on 
 documentary proof which sustains a defense. 
 Sup. Ct., 1874, Dietz y.Dietz,i8 How. 114. S. C, 
 2 Hun, 339. 
 
 232. Introduction of evidence. Admis- 
 sions in the original answer cannot properly be 
 read upon the trial of a cause, after the service 
 of an amended complaint and answ.er ; but if the 
 facts admitted are otherwise conclusively proved 
 by other evidence, tlie irregularity is immaterial. 
 Sup. Ct., 1874, Payne v. Kings Co. Man/. Co., 2 
 Hun, 673. 
 
 233. A defendant who expressly admits by 
 his pleading that the contract sued on is his, 
 will not be suffered afterward to deny it, or to 
 prove any state of facts inconsistent with such 
 admission. N. Y. Supr. Ct., 1875, Schreyer v. 
 Mayor, etc. of New York, 39 N. Y. Supr. (7 J. & 
 Sp.) 1. 
 
 234. Where the complaint is not denied, but a 
 counterclaim is interposed as a defense, the 
 plaintiff is' not obliged to rely upon or use the 
 affirmative admissions in the answer, it being un- 
 necessary for him to prove his case ; hence, the 
 fact that such admissions are coupled with 
 averments going to sustain defendant's counter- 
 claim does not relieve such defendant from 
 proving the counterclaim in the ordinary way. 
 Ct. App., 1874, Cone v. Purcell, 56 N. Y. (11 Sick.) 
 649. 
 
 235. The testimony of a witness taken before 
 the first trial of an action,, under a stipulation 
 that it " may be read on tlie trial — subject to 
 legal objections," although not read on the first 
 trial, the witness being then present and testi- 
 fying, may be read on the second trial without 
 proving the inability of the witness to be present 
 at that trial ; the effect of the stipulation not 
 being limited to the first trial. Sup. Ct., 1874, 
 Hawkins v. Macy, 2 Hun, 668. 
 
 236. A stipulation by the parties to an action 
 for the admission of certain affidavits in evidence 
 cannot be set aside at the trial on the ground 
 that, they contain statements which are untrue. 
 That can be done only upon motion made at the 
 Special Term. Sup. Ct., 1875, Frisbie v. Fitz- 
 simmons, 3 Hun, 674. 
 
 237. Where it was made a condition of open- 
 ing a default that certain affidavits should be 
 used on the trial in the absence of the affiant, — 
 Held, that, in case of such absence, the affidavits 
 were properly received, though objected to by 
 defendant as incompetent and irrelevant. N. Y. 
 C. P., 1869, Ynguanzo v. Salomon, 3 Daly, 153. 
 
 238. The admission, under objection, of evi- 
 dence bearing upon a specific question submitted 
 to the jury, — Held no error, where the jury 
 were instructed to regard neither the question 
 nor its answer in rendering tlieir verdict. Ct. 
 App., 1874, Water Commissioners of -Detroit v. 
 
582 
 
 PRACTICE. 
 
 Burr, 66 N. Y. (11 Sick. ) 665 ; Aff'g S. C, 35 
 N. Y. Supr. (3 J. &Sp.) 522. 
 
 239. In an action against an attorney for neg- 
 ligence in delaying to place a mortgage on file, 
 it is error to admit evidence tending to sliow 
 fraud on his part in afterward procuring a satis- 
 faction of tlie same. N. Y. C. P., 1870, Arnold 
 V. Robertson, 3 Daly, 298. 
 
 240. Relevant to either defendant. In 
 an action against two defendants for a joint 
 fraud in making a sale of the defendant's prop- 
 erty, all evidence competent for any purpose 
 against either defendant may properly be re- 
 ceived to be afterward distinguished and applied 
 as the case may require. Sup. Ct., 1874, Price 
 V. Keyes, 1 Hun, 177. 
 
 241. Order of evidence. It is within the 
 discretion of the court at the trial to refuse to 
 receive offered evidence of a fact which will be 
 immaterial unless connected with a party, until 
 after such connection is shown. N. Y. Sunr. 
 Ct., 1873, Cames v. Piatt, 46 Ho?^, 620 ; S. C.,"l5 
 Abb. N. S. 337 ; 36 N. Y. Supr. (4 J.& Sp.) 361. 
 
 242. The court has a right to determine in 
 what order evidence shall be introduced. It is, 
 therefore, not error to refuse to receive evidence 
 that the note sued on was given to compromise 
 a felony, until it is first shown that the plaintiff 
 is not a bona fide purchaser. Sup. Ct, 1874, 
 Hill V. Northrup, 1 Hun, 612. 
 
 243. Postponing evidence. When a party 
 omits for the present examining a witness on a 
 particular point, upon the suggestion of the 
 court that he do so afterward in case the other 
 party gives evidence rendering it material, he 
 should not be deemed thereby to have waived 
 the right to go fully into the subject, if it be- 
 comes material ; and if evidence on that subject 
 afterward offered is rejected, it must be deemed 
 to have been on the ground that it was imma- 
 terial. Sup. Ct., 1873, Costello V. Syracuse, Bing. 
 ^ N. Y. R. R. Co., 65 Barb. 92. 
 
 244. Offer of evidence. A defendant, in 
 order to avail himself of an exception to the ex- 
 clusion of evidence which is proper simply upon 
 the defense, and not in answer to the plaintiff's 
 rebutting testimony, must have offered the same 
 before resting his defense. N. Y. Supr. Ct., 
 1870, Speyer v. Stern, 2 Sweeny, 516. 
 
 246. An offer of evidence must be taken as 
 all that the party making it proposed to offer 
 or. show upon that issue ; and where it is in- 
 sufficient, with what is already proved, to 
 establisli such issue, there is no error in its re- 
 jection. Ct. App., 1871, Pepin v. Lachenmeyer, 
 46 N. Y. (6 Hand,) 27. 
 
 246. An offer of evidence must be made in 
 such terms as to leave no doubt as to its compe- 
 tency and materiality under a proper definition 
 of tlie law applicable thereto, and if not so made 
 a general exception to its exclusion will not be 
 available on .appeal, unless it plainly appears 
 that the court understood the ground which in 
 law might have justified its reception. N. Y. 
 Supr. Ct., 1871, McGrath v. Bell, 42 How. 182; 
 S. C. 33 N. Y. Supr. (1 J. & Sp.) 195. 
 
 247. Objections to evidence. An objection 
 to a question put to a witness must be made be- 
 fore it is answered. After evidence has been 
 given the only remedy is to move to strike out. 
 N Y Supr. Ct., 1871, Todiman v. Brown, 33 
 N.Y.'Supr. (1 J. & Sp.)409. _ 
 
 248 It is not competent to raise an objection 
 by way of anticipation of evidence to be given, 
 unless bv permission of tlie trial judge ; and 
 even if so permitted, the case should show that 
 the objection was taken after questions put, and 
 
 the proper motion made to strike out after the 
 evidence was given. lb. 
 
 249. An objection to the testimony of a wit- 
 ness because he is testifying from the copy of a 
 memorandum, to be effectual, must be made as 
 soon as that fact is discovered. It the counsel 
 instead of moving to strike out his testimony, 
 continues his examination afterward, on tlie 
 same and other subjects, the objection is waived. 
 Sup. Ct., 1«71, Pitney v. Glens Falls Ins. Co. 
 61 Barb. 335. 
 
 250. Objections to the reading of a deposition 
 taken on commission on the ground that some of 
 the interrogatories were not fully answered, 
 should be early presented by a motion to sup- 
 press, otherwise they may properly be rejected. 
 N. Y. Supr. Ct., 1*72, Vilmar v. Schalt, 35 N. Y. 
 Supr. (3 J. & Sp.) 67. 
 
 251. A party who has objected to questions 
 put to a witness relative to an affidavit made br 
 him, on the ground that the afiidavit should be 
 produced, cannot, after the production of the 
 afiidavit, be permitted to object to its admission 
 on the ground that it is irrelevant and imma- 
 terial. Com. App., 1873, Chester v. Dickinson, 
 45 How. 326 ; S. C, 54 N. Y. (9 Sick.) 1. 
 
 252. Wlien the evidence offered is necessarily 
 and obviously improper, a general objection to 
 it is sufficient. Sup. Ct., 1874, Porter v. Parks, 
 2 Hun, 654. 
 
 253. Where there are any reasons for the ex- 
 clusion of evidence in itself competent, growing 
 out of the proceedings upon trial, or the prior 
 examination and statements of the witness, they 
 should be stated and tlie attention of the court 
 called to them. A general objection will not 
 suffice. Ct. App.. 1871, Williams v. Sergeant, 46 
 N. Y. (1 Sick.) 481. 
 
 254. An objection to " any evidence of the 
 conversation between the plaintiff and an agent 
 of the defendant," taken upon an offer of proof 
 of a particular conversation, will not avail as to 
 evidence, subsequently given without specific 
 objection, of a different conversation between 
 the same parties. Ct. App., 1871, Sturgess v. Bis- 
 sell, 46 N. Y. (1 Sick.) 462. 
 
 255. Where testimony is taken under objec- 
 tion, the party objecting not being required to 
 state the specific grounds after each question, 
 but only at the close, and the attention of the 
 court not being called to them in detail, an ob- 
 jection on the ground of variance will, on appeal, 
 be deemed to be waived. Ct. App., 1871, Coster 
 V. Mayor of Albany, 43 N. Y. (4 Hand,) 399. 
 
 256. An objection to a paper offered in evi- 
 dence, as " immaterial and irrelevant," is not 
 suiScient to raise the question, on appeal, of its 
 admissibility as being a copy and not the origi- 
 nal. Ct. App., 1871, Atkins v. Elwell, 45 N. Y. (6 
 Hand,) 753. 
 
 257. A reservation made in the stipulation of 
 a substituted party defendant, brought in pend- 
 ing the trial, that the evidence already taken 
 shall be received, as to him, " subject to all legal 
 exceptions," secures to him the benefit of such 
 exceptions only as have been taken thereto and 
 such as may be thereafter taken by hrm during 
 the trial. Ct. App., 1871^ Burgess v. Simonson, 45 
 N. Y. (6 Hand,) 225. 
 
 258. Objection, when cured. An objection 
 to the admission in evidence of the insurance 
 policies on which the suit is brought without the 
 applications, if good, is obviated bv the subse- 
 quent introduction of the applica'tions by the 
 defendant. Sup. Ct., 1875, Edington v. Mut. Life 
 Ins. Co. of N. Y., 5 Hun, 1. 
 
 259. i;:$clusion of evidence. The rejec- 
 
PRACTICE. 
 
 583 
 
 tion of cumulative evidence on a point not con- 
 troverted is no error, though the evidence is 
 otherwise competent. Com. App., 1872, Brad- 
 ford V. Bradford, 61 N. Y. (6 Sick.) 669. 
 
 2b0. In an action upon a note, unless the proof 
 of plaintiff's title as a bonajide holder is so clear 
 and convincing as to leave nothing to submit to 
 the jury, even if duress was proved, the exclu- 
 sion of evidence in support of that defense is 
 error. Ct. App., 1871, First Nat'l Bank of Cort- 
 land V. Green, 43 N. Y. (4 Hand,) 298. 
 
 261. A witness, testifying as an expert to the 
 value of demised premises, should be permitted, 
 on cross-examination, to answer questions rela- 
 tive to the position, character and number of 
 other buildings in the renting of which he had 
 participated, and the rent received therefrom, in 
 order to ascertain the correctness of his esti- 
 mate. N. Y. C. P., 1871, Drucker v. Simon, 4 
 Daly, 53. 
 
 262. When, by reason of the contumacy of a 
 party in refusing to produce his books as required 
 by the court, secondary proof is received on be- 
 half of tlie other party, the court has the right 
 to prevent the former from meeting such second- 
 ary proof witli like proof. Ct. App., 1874, Piatt 
 V. Plait, 58 N. Y. (13 Sick.) 646. 
 
 263. Any error in the exclusion of evidence 
 offered, is cured by its subsequent admission 
 under another form of question. N. Y. Supr. 
 Ct., 1870, Neff V. Friedman, 2 Sweeny, 607. 
 
 264. Bzamination of -vritnesses. In an 
 action for a trespass by cattle, and the destruc- 
 tion of apples, a witness may properly be asked, 
 " to the best of your knowledge, were there 100 
 bushels of apples there t " It does not call for 
 the opinion of the witness. Sup. Ct., 1875, 
 Townsend v. Bruhdage, 4 Hun, 264. 
 
 265. In an action upon a note by an indorsee, 
 vfhere the bona fides of the transfer is denied by 
 the defendant, the plaintiff may properly be 
 asked, after testifying that he received it on a 
 debt then due him from the payee for part of the 
 amount, and afterward let him have goods to 
 more than the balance, " Were the supplies fur- 
 nished by you to B after the delivery and before 
 the maturity of the note furnished on the note 
 or not ■? " Such question calls for a fact ; but 
 it wojild be proper even if it called for an opera- 
 tion of the mind. N. Y. Supr. Ct, 1871, Lewis 
 V. Rogers, 34 N. Y. Supr. (2 J. & Sp.) 64. 
 
 266. Where a witness, called to testify on a 
 certain question, has stated that he has no mem- 
 ory on the subject and can speak of it only from 
 his memorandum book, it is not error to after- 
 ward permit the question, whether or not " lie 
 had any impression from recollection on that 
 subject," though calling for an answer diverse 
 from tliat first given. Ct. App., 1871, Atkins v. 
 Elwell, 45 N. Y. (6 Hand,) 753. 
 
 267. In an action for the conversion of a canal 
 boat the defendants, after one of their witnesses 
 had testified to its condition and market value, 
 offered to prove by him the average life of such 
 boats and tlie value of the one in suit a year 
 after the conversion ; — Held, that although this 
 was proper matter of cross-examination, if the 
 plaintiff did not see fit to go into it, defendants 
 )iad no right to strengthen their testimony by 
 such inquiries. Ct. App., 1874, Judson v. Easton, 
 58 N. Y. (13 Sick.) 664. 
 
 268. Where the party calling a witness is taken 
 by surprise by unexpected testimony, he may 
 be permitted to interrogate the witness in respect 
 to his previous declarations, inconsistent with 
 his evidence, for the purpose of probing his 
 recollection, recalling to his mind the statements 
 
 he has previously made, and drawing out an ex- 
 planation of his apparent inconsistency, and 
 also to show the circumstances which induced the 
 party to call him ; and the fact that the answers 
 of the witness may involve him in contradictions 
 calculated to impair his credibility, is not a suf- 
 ficient reason for excluding the inquiry. But 
 where the sole effect of a favorable answer 
 would be to discredit the witness, the inquiry 
 will not be permitted. Ct. App., 1873, Bullard 
 V. Pearsall, 53 N. Y. (8 Sick.) 230. 
 
 269. Leading questions. It is in the dis- 
 cretion of the trial judge either to allow or to 
 exclude leading questions. N. Y. Supr. Ct, 1871, 
 Lewis y. Rogers, 34 N. Y. Supr. (2 J. & Sp.) 64. 
 
 270. Calling for opinion. In the examina- 
 tion of medical experts, counsel may be permit- 
 ted to assume, within the limits of the evidence, 
 any state of facts which he claims the evidence 
 justifies, and have the opinion of such experts 
 upon the facts thus assumed. Ct App., 1872, 
 Filer v. New York Central- R. R. Co., 49 N. Y. 
 (4 Sick.) 42. 
 
 271. CroBS-ezamination. A defendant, in 
 an action for goods sold him, who testifies that 
 he promised to pay only for what he received, 
 and then proceeds to testify as to what he re- 
 ceived, may properly be asked, on cross-exam- 
 ination, questions, the tendency of which is, if 
 answered in the affirmative, to show that he had 
 received more than he testified to on his direct 
 examination. N. Y. Supr. Ct, 1871, Rocke v. 
 Meiner, 34 N. Y. Supr. (2 J. & Sp.) 158 
 
 272. The qualification of a question as to the 
 property received by him by the words " belong- 
 ing to the plaintiff," does not render it objec- 
 tionable as calling for a conclusion of law. lb. 
 
 273. — of party. Upon the cross-examina- 
 tion of a party who has been examined as a 
 witness on his own behalf, the adverse party 
 may go into the whole case, and need not con- 
 fine liimself to matters that were the subject of 
 the direct examination. N. Y. Supr. Ct, 1872, 
 Livingston v. Keech, 34 N. Y. Supr. (2 J. & Sp.) 
 547. 
 
 274. Upon- such cross-examination he may be 
 asked leading questions as to matters not the 
 subject of the direct examination, the rule that 
 the party examining makes him his own witness 
 as to those matters not applying. lb. 
 
 275. Where the state of mind of such party at 
 a particular time is material to the case or de- 
 fense, as where he charges that he was induced 
 to receive certain bonds by false and fraudulent 
 representations as to their value, he may prop- 
 erly be required to testify, as to declarations 
 made by him subsequently in respect to liis 
 ability or willingness to swear to such repre- 
 sentations being made. lb. 
 
 276. — as to income. The amount of a 
 party's income, who is testifying as an expert as 
 to value of professional services, is not so imme- 
 diate on the question of his capacity to speak as 
 such, as to entitle the opposite party as a matter 
 of right to inquire into it on cross-examination ; 
 but such inquiry is within the discretion of the 
 court or referee trying the case. Ct. App., 1873, 
 Harland v. Lilienthal, 53 N. Y. (8 Sick.) 438. 
 
 277. — as to interest. The payee of a note 
 who, as a witness for tlie defendant in an action 
 thereon, has given material testimony adverse 
 to the plaintiff, may properly be asked on cross- 
 examination, for the purpose of testing his credi- 
 bility, whether he knows that the success of 
 the defendant will relieve him from liability, or 
 will affect his pecuniary interest. Sup. Ct., 1874, 
 Vaughn v. Westover, 2 Hun, 43. 
 
584 
 
 PRACTICE. 
 
 278. Although interest in the event of a suit 
 will not now disqualify a witness, yet it may be 
 shown with a view to affect his credibility . lb. 
 
 279. — as to opinion. In an action by an 
 attorney to recover compensation for his ser- 
 vices in a suit, a witness wlio lias testified to 
 their value, and the difficulty of the case, may 
 be asked on cross-examination whether if he 
 " should assume that tlie defendant had a good 
 defense, which any lawyer of fair education and 
 abilities could have prevailed in," he would not 
 tlien have estimated his services at much less, 
 and what his services would be worth, supposing 
 the defendant to have had a perfect and clear 
 defense, and the plaintiff to have brought about 
 a settlement for the sake of peace ; since such 
 questions call for the witness' opinion of the 
 services, on the theory that they were not either 
 difficult or extraordinary. Sup. Ct., 1873, Gar- 
 field V. Kirk, 65 Barb. 464. 
 
 280. — as to previous impiisonmeut. A 
 question whether the witness had ever been in 
 prison, held competent on cross-examination. 
 Com. App., 1872, Russell v. St. Nicholas Fire 
 Ins. Co.. 61 N. Y. (6 Sick.) 643. 
 
 281. The fact that a witness has been a 
 convict cannot be shown by his own testimony, 
 even on cross-examination, for the purpose of 
 impeaching him. Sup. Ct., 1871, Tijffi v. Moor, 
 59 Barb. 619. 
 
 282. — as to previous indictment. In an 
 action for rent, defended on the ground that the 
 lease was a cover for usury, — Held, that it was 
 in the discretion of the court to permit the 
 question to plaintiff on cross-examination, wheth- 
 er he was not then under indictment for usury. 
 Ct. App., 1874, Southworth v. Bennett, 58 N. Y. 
 (13 Sick.) 659. 
 
 283. — as to previous testimony. A party 
 may, on cross-examination, exhibit to a witness, 
 for the purpose of proving the same, a written 
 examination or deposition before made by him ; 
 but he cannot be permitted to represent, in a 
 question, the contents of such writing, and ask 
 sucli witness if he testified thus. N. Y. Supr. 
 Ct., 1870, Speyer v. Stern, 2 Sweeny, 516. 
 
 284. — as to sufficiency of search. Where 
 a witness has been examined as to the loss of a 
 written instrument, the contents of which are 
 proposed to be proved by parol, the adverse 
 party has a right to cross-examine as to the suf- 
 ficiency of his search. Sup. Ct., 1875, Loomis v. 
 Momry, 4 Hun, 271. 
 
 285. — as to trouble ■with party. Where, 
 in an action to restrain the flowage of lands, a 
 grantee of the person through whom defendant 
 cliiimed and by whose act plaintiff charged that 
 tlie dam liad been raised, being called by the 
 defendant, testified simply that he did not raise 
 the dam while he owned the land, — Held, that a 
 question on cross-examination as to whether he 
 liad not had trouble with the plaintiff about rais- 
 ing tlie water, was properly ruled out. Ct. App., 
 1873, Cook V. Spaulding, 52 N. Y. (7 Sick.) 661. 
 
 286. Limiting examination of -witnesses. 
 Where there is much testimony from many 
 witnesses, the court may exercise its discretion 
 ill limiting all examinations and cross-examina- 
 tions within reasonable bounds. Sup. Ct„ 1875, 
 Hdllock V. Randall, 8 Hun, 616. 
 
 287. The limits of a cross-examination are in 
 tlie sound discretion of the court, 'and unless 
 that discretion is clearly abused, its decisions 
 will not be reviewed on appeal. Ct. App., 1873, 
 Lefler v. Field, 62 N. Y. (7 Sick.) 621, S. P., 
 
 White V. McLean, 47 How. 193; 57 N. Y. (12 
 Sick.) 670. 
 
 288. After a witness has been examined and 
 cross-examined and has left the stand, it is within 
 the discretion of the court whether or not it will 
 allow him to be recalled, for the purpose of 
 laying a foundation for impeaching him, and its 
 decision is final. N. Y. Supr. Ct., 1869, Emnertze 
 V. East Riv. National Bank,2 Sweeny, 82. 
 
 289. Party w^hen bound by answers. A 
 party is bound by the answers of a witness for 
 the adverse party, drawn out by him on cross- 
 examination, only when they relate to a collat- 
 eral matter. ■ If evidence material to the issue 
 is so brought out he is not necessarily bound 
 thereby, but may contradict it by other testi- 
 mony. Sup. Ct., 1873, Newberry v. Furnival, 46 
 How. 139 ; Aff'd, S. C, 66 N. Y. (11 Sick.) 638. 
 
 290. When on cross-examination, a witness is 
 asked as to statements made by him elsewhere 
 inconsistent with his testimony in a material 
 point, the examiner is not concluded by his de- 
 nial, but may introduce proof of such statements. 
 Ct. App., 1874, Smith v. Hart, 58 N. Y. (13 Sick.) 
 644. 
 
 291. A party who puts a question to a witness 
 on cross-examination, which is collateral or irrel- 
 evant to the issue, is concluded by his answer 
 and.cannot contradict it. N. Y. Supr. Ct., 1873, 
 Tiedman v. O'Brien, 36 N. Y. Supr. (4 J. & Sp.) 
 639. S. P., Green v. Rice, 33 N. Y. Supr. (IJ. & 
 Sp.) 292. 
 
 292. Yet, when a party to the action has been 
 asked such questions, it is error to rule out 
 questions to other witnesses the answers to 
 which may tend to contradict him, where they 
 may also call out admissions or declarations 
 which are material and pertinent to the issue. 
 rKEEDMAN, J., dissents. N. Y. Supr. Ct., 1871, 
 Green v. Rice, 33 N. Y. Supr. (IJ. & Sp.) 292. 
 
 293. A party may properly be examined in 
 his own behalf to contradict a witness previous- 
 ly called and examined by him, where his testi- 
 mony will not necessarily impeach such witness, 
 but merely tend to show that he was mistaken. 
 Sup. Ct., 1873, Hildreth v. Shepard, 65 Barb. 266. 
 
 294. A party who has called and examined a 
 witness may contradict him as to a fact mate- 
 rial in the case, even though the effect of such 
 proof may be to discredit him ; but he cannot 
 adduce such a contradiction when it is only 
 material as bearing upon the credibility of the 
 witness, although he was subsequently called as 
 a witness for the adverse party. Ct. App., 1874, 
 Coulter V. American Merchants Un. Express Co., 
 56 N. Y. (11 Sick.) 586 ; Eev'g S. C, 6 Lans. 67. 
 
 295. Recalling for correction or explan- 
 ation. Where a witness has testified to facts 
 tending to support the complaint, and on cross- 
 examination has said that lie had not informed 
 the plaintiff's attorney of those facts, his atten- 
 tion may be called on re-direct examination to a 
 particular time and place, and persons then pres- 
 ent, to give him an opportunity to correct his 
 testimony in that respect, if incorrect. Sup. 
 Ct., 1871, Gilben v. Sage, 5 Lans. 287; Aff'd, S. 
 C, 57 N. Y. (12 Sick.) 639. 
 
 296. A witness for the plaintiffs, whose testi- 
 mony the defendant has attempted to impeach, 
 may be asked whether he had not been on un- 
 friendly terms with the plaintiffs, for the pur- 
 pose of showing that he was not biased in their 
 favor. lb. 
 
 297. To lay a foundation for impeaching the 
 testimony of a witness, the party against whom 
 he was called may recall him and ask him 
 wliether he has not made statements inconsis- 
 tent with his testimony, and contradict him by 
 other witnesses. lb. 
 
PRACTICE. 
 
 585 
 
 298. For that purpose, the time, place and 
 conversation in which tlie statements are claim- 
 ed to liave been made, should be specified in the 
 question put. lb. 
 
 299. It is in the discretion of the court to per- 
 mit a witness to be recalled to a fact in respect 
 to whicli he lias before testified, and to explain, 
 qualify or contradict his former statements ; and 
 tlie discrepancy in the statements only aflects 
 his credibility. Ct. App., 1871, Williams y. Uar- 
 geant, 46 N. Y. (1 Sick.) 481. 
 
 800. Where statements of a witness, made on 
 cross-examination, are contradicted by witnesses 
 for the adverse party, it is discretionary with 
 the court whether or not to permit such witness 
 to be re-examined in relation to the same mat- 
 ters ; and judgment will not be reversed for a 
 refusal of the privilege, unless it can be seen 
 that tlie party has been prejudiced thereby. Ct. 
 App., 1872, Caldwell v. New Jersey Steamboat Com- 
 pany, 47 N. Y. (2 Sick.) 282. 
 
 801. Refreshing memory. A witness may 
 properly be permitted to refresh his memory by 
 the use of any written instrument, whether 
 written by himself or anotlier, provided he can 
 speak from his recollection after inspecting the 
 paper. N. Y. Supr. Ct., 1874, Sturm v. Atlantic 
 Mut. Ins. Co., 38 N. Y. Supr. (6 J. & Sp.) 282. 
 S. P., Zimmerman v. Schoenfeldt, 3 Hun, 692 ; 
 Gilbert v. Sage, 5 Lans. 287; AfE'd, 57 N. Y. (12 
 Sick.) 639. 
 
 802. A witness who has made an affidavit in 
 relation to the transaction in controversy, some 
 three years after it occurred and just before tlie 
 trial, and who in his testimony on the trial con- 
 tradicts some of the statements therein con- 
 tained, cannot be shown sucli afSdavit for the 
 ostensible purpose of refresliing his memory. 
 Sup. Ct., 1875, Uonstine v. O'Donnell, 5 Hun, 472. 
 
 303. The proper course is to examine the wit- 
 ness in tlie usual way, and if Ms evidence con- 
 tradicts the affidavit, question him as to the 
 latter for the purpose of probing his recollec- 
 tion and obtaining an explanation of the incon- 
 sistency, lb. 
 
 804. Impeaching -witness. A witness can 
 only be impeached as to material evidence. 
 Within this rule, evidence showing that he is 
 influenced by passion or prejudice against the 
 party seeking to discredit him, or that he has 
 acted or given versions of the transactions as to 
 wliich he is called, out of court, essentially dif- 
 ferent from, or wholly inconsistent with, that 
 testified to by him, is admissible. Sup. Ct., 
 1868, Knight v. Forward, 63 Barb. 311. 
 
 305. For tlie purpose of impeachment, the 
 witness may be examined as to such acts or 
 statements, and, if he denies them, contradicted 
 by other witnesses. lb. 
 
 806. Thus, a vendor of property, who has 
 been called as a witness to prove the sale, may 
 be asked on cross-examination whether he had 
 not, subsequent to the alleged sale, offered to 
 sell tlie same property as being his own. lb. 
 
 307, Where it is proposed, for the purpose of 
 impeachment, to show that a Witness has made 
 statements out of court in conflict with his evi- 
 dence in court, the usual and most accurate way 
 of examining the contradicting witness is to ask 
 liim the precise question which has previously 
 been put to the principal witness to lay tlie 
 foundation of impeachment ; but the practice 
 upon this point must to some extent be under 
 the control and discretion of the court, and 
 where the attention of the principal witness has 
 been called to the time, place and subject, and 
 the answer of the impeaching witness is a sub- 
 
 stantial contradiction of his statements, an error 
 in the form of the question will be immaterial. 
 Ct. App., 1871, Sloan v. N. Y. Central R. R. Co., 
 45 N. Y. (6 Hand,) 125. 
 
 808. A party seeking to impeach a witness 
 by showing that he has made some statement 
 inconsistent with a document signed by him, 
 must produce sucli document. Sup. Ct., 1874, 
 Pratt V. Norton, 2 Hun, 617. 
 
 809. Where it is proposed to impeach a wit- 
 ness by proving inconsistent written statements, 
 it is sufficient to show or read to him the paper, 
 without calling his attention to particular state- 
 ments in it, and after establishing its genuine- 
 ness, introduce it when the proper time comes. 
 Ct. App., 1872, Romertze v. East River National 
 Bank, 49 N. Y. (4 Sick.) 577; Bev'g S. C, 2 
 Sweeny, 82. 
 
 310. Evidence of a particular fact, as that the 
 witness has been accused or is held on a charge 
 of crime, is not admissible for the purpose of 
 impeachment. N. Y. Supr. Ct., 1870, Berner v. 
 Mittnacht, 2 Sweeny, 582. 
 
 311. The court may in its discretion permit 
 disparaging questions to be put to a witness, for 
 the purpose of impairing his general credit ; but 
 the rule is confined to the acts and declarations 
 of the witness, and does not extend to those of 
 others. lb. 
 
 312. The rule is the same whether the witness 
 be a party or otherwise. lb. 
 
 818. Re-opening to let in proof. The re- 
 opening of a case to let in more proof is a matter 
 wholly within the discretion of the court, and 
 not the subject of an exception. N. Y. Supr. 
 Ct., 1873, Simmons v. Lyorts, 85 N. Y. Supr. (8 J. 
 & Sp.) 554. S. P., Caldwell v. N. J. Steamboat 
 Co., 47 N. Y. (2 Sick.) 282. 
 
 314. Strilung out evidence. Testimony 
 which is received on the trial without objection 
 cannot be stricken out on motion after all the 
 evidence is in. The objection to it, if any, is 
 then waived. Sup. Ct., 1872, Filkins v. Baker, 
 6 Lans. 516. S. P., Wheeler v. See, 4 Hun, 662. 
 
 315. Where evidence has been properly re- 
 ceived, the party against whom it was introduced 
 has no absolute right to have it stricken out 
 when its effect has been destroyed by other evi- 
 dence ; but his proper course is to protect him- 
 self against its effect by a charge from the court. 
 Com. App., 1872, Gawtry v. Doane, 51 N. Y. (6 
 Sick.) 84 ; Aff'g S. C, 48 Barb. 148. 
 
 816. Where a cross-examination shows that 
 testimony given on the direct examination is 
 immaterial, it is discretionary with the court to 
 strike it out on motion. Com. App., 1874, Stokes 
 v. Johnson, 57 N. Y. (12 Sick.) 678. 
 
 317. In an action for an injury sustained in 
 getting out from a stage by reason of the negli- 
 gence of the driver, a preliminary question to tlie 
 plaintiff as to whether the driver made any re- 
 marks to her when getting into the stage, — Held 
 not improper; or, if it was, and the answer given 
 was not responsive, tlie error was cured by an 
 order striking it out and directing the jury to 
 disregard it. Ct. App., 1874, Roberts v. Johnson, 
 58 N. Y. (18 Sick.) 613 ; Aff'g S. C, 37 N. Y. 
 Supr. (5 J. & Sp.) 157. 
 
 318. Where a witness, after examination in 
 chief, upon which she gives material testimony, 
 faints away and becomes so ill as to render cross- 
 examination impossible, her evidence should be 
 stricken out on motion, and to allow it to go to 
 the jury is error. Ct. App., 1871, People v. C7o/e, 
 43 N. Y. (4 Hand,) 508. 
 
 319. Questions for court. If a fact which 
 is important is controverted on the trial, it should 
 
586 
 
 PRACTICE. 
 
 be submitted to the jury, but if no request is 
 made for such submission, it becomes tlie pro- 
 vince of the court to determine it, and the court's 
 decision thereon is final. Sup. Ct., 1872, Excel- 
 sior F. Ins. Go. V. Royal Ins. Co. of Liverpool, 7 
 Lans. 138. 
 
 320. Agency. In an action against an inn- 
 Iceeper for the loss of robes, &c., which one who 
 had been a guest at a ball in such inn, and after 
 starting for home had brought back and deliver- 
 ed to a clerk temporarily employed there to re- 
 ceive such things, saying " that he had been tip- 
 ped over, and these things would have to remain 
 there 2 or 3 days or until he could find his horse 
 at any rate," and asking if it would be all right, 
 and the clerk answering that it would, the only 
 question, upon evidence of those facts, is wheth- 
 er the clerk was acting within the scope of liis 
 authority as agent wlien he made the contract, 
 and that was a question of law for the court. It 
 was, therefore, error to charge the jury that if 
 there was a special contract between the clerk 
 and tlie former guest the defendant was not lia- 
 ble, otherwise he was liable. Sup. Ct., 1871, 
 Coykendall v. Eaton, 42 How. 378 ; S. C, before, 
 37 How. 438 ; 40 id. 266 ; 66 Barb. 188. 
 
 321. Contract, interpretation of. The in- 
 terpretation 6f a contract, where its terms are 
 undisputed, is for the court and not for the jury. 
 Com. App., 1872, Groat v. Gile, 61 N. Y. (6 Sick.) 
 431. 
 
 322. It is for the court, and not for the jury, 
 to construe a written contract, and also to pass 
 upon the effect of evidence showing an unrea- 
 sonable delay in performance by the plaintiff. 
 Sup. Ct., 1876, Connolly v. Hamill, 8 Hun, 399. 
 
 323. The construction of a written instrument 
 is a question of law, for the court ; but when 
 such instrument is not produced, if there is a 
 question about its terms, that is for the jury. 
 Sup. Ct., 1875, Cook v. Allen, 5 Hun, 661. 
 
 324. Construction of will. Where the in- 
 tent of a testator is to be ascertained from his 
 language alone, or from tliat and from surround- 
 ing circumstances about wliich there is no dis- 
 pute, tlie question presented is not one of fact, 
 but of law for tlie court. Ct. App., 1874, Under- 
 hilly. Vandervoort, 66 N. Y. (11 Sick.) 242. 
 
 326. Contributive negligence. In an ac- 
 tion by the occupant of the first floor and base- 
 ment of a store building, against the occupant of 
 tlie upper stories, to recover damages for in j uries 
 by water to his goods, alleged to have been 
 caused by the negligence of the defendant in al- 
 lowing a Croton water pipe to burst or overflow, 
 wliere tlie evidence shows that although the pack- 
 ing of the piston rod of a pump which the defend- 
 ant had for necessary purposes in the third story 
 was so worn as to admit the water to pass up 
 through it, yet that the plaintiff must have been 
 guilty of eontributive negligence in not having 
 sliut off the water in the main pipe in his base- 
 ment, otherwise the water would not have risen 
 to tlie defendant's pump, the question of such 
 negligence is a pure question of law for the court. 
 N. Y. C. P., 1872, Rudolphy v. Fuchs, 44 How. 
 165. 
 
 326. Courts are usually exceedingly indisposed 
 to take away the question of co-operative or mu- 
 tual negligence from the jury, but when it is 
 clearly defined and palpable, it is a pure ques- 
 tion of law, and no verdict of a jury can make it 
 otherwise. lb. 
 
 327. Deed a mortgage. Whether a deed ab- 
 solute in form was intended to be a mortgage, is 
 a mixed question of fact and law. Sup. Ct., 1872, 
 Brown V. Clifford, 7 Lans. 46. 
 
 828. Diligence. The question as to what is 
 a reasonable time for a consignee of goods to 
 remove them after notice of their arrival, the 
 lapse of which will discharge the carrier, is, 
 when there is no dispute as to the facts, a ques- 
 tion of law for the court. Ct. App., 1872, 
 Hedges v. Hudson Riv. R. R. Co., 49 N. Y. 
 (4 Sick.) 223 ; Rev'g S. C, 6 Rob. 119. 
 
 329. Privileged publication. In an action- 
 for a libel in publishing an account of the com- 
 mencement of a judicial proceeding by an 
 affidavit making a criminal charge, where the 
 question whether the report was fair and there- 
 fore privileged, depends upon a comparison of 
 the affidavit with the report, it is a question of 
 law for the court. N. Y. Supr. Ct., 1874, Acker- 
 man V. Jones, 37 N. Y. Supr. (5 J. & Sp.) 42. 
 
 330. Questions for jury. Acceptance. 
 In an action for the purchase-money of goods 
 alleged to have been sold and delivered to de- 
 fendants under a verbal contract of sale, where 
 the question was litigated whether the defend- 
 ants accepted the goods or merely received 
 them for the purpose of ascertaining if they con- 
 formed to sample, and the evidence was conflict- 
 ing, the question whether the defendants in fact 
 accepted them with the intention of taking pos- 
 session as owners should have been submitted 
 to the jury. Ct. App , 1872, Stone v. Browning, 
 44 How. 181 ; S. C, 18 Abb. N. S. 188 ; 51 N. Y. 
 (6 Sick.) 211. 
 
 331. Accommodation paper. In an action 
 upon a promissory note, where there is evidence 
 tending to show that it was given at the request 
 and for the accomodation of the plaintiff, thougli 
 payable to and endorsed by a third party, the 
 question of want of consideration as between 
 the parties should be submitted to the jury. N. 
 Y. Supr. Ct., 1875, Murphy v. Keyes, 39 N. Y. 
 Supr. (7 J. & Sp.) 18. 
 
 882. Act in line of duty. In an action to 
 recover damages for an injury received by one 
 engaged in loading cotton upon a cart on de- 
 fendant's wharf, by the falling of a bale of 
 cotton thrown over by defendant's delivery 
 clerk, where the testimony is conflicting as to 
 whether the act of the clerk was in the line of 
 his duty, that question was properly submitted 
 to the jury. Ct. App., 1876, Courtney v. Baker, 
 60 N. Y. (15 Sick.) 1 ; Aff'g S. C, 34 N. Y. 
 Supr. (2 J. & Sp.) 529. 
 
 383. Adverse possession. In an action for 
 a trespass in cutting and taking away timber 
 from wild and unenclosed land, where the evi- 
 dence shows that the plaintiff has had the legal 
 title to that and to the cultivated land actually 
 occupied by him, adjoining it, for many years 
 under one deed, and has exercised some acts of 
 ownership over the wild land, and the defendant 
 testifies tliat he was in the actual possession of 
 such wild land, claiming under title adverse to 
 the plaintiff's, at the time of the alleged trespass, 
 the question of possession is one of fact for the 
 jury, and each party has the right to have it 
 decided by them. Sup. Ct., 1878, Slade v. Mc- 
 Mullen, 46 How. 62. 
 
 384. Authority. In a suit for compensation 
 for services rendered a corporation, under em- 
 ployment by its superintendent, the questions 
 whether the services were performed for the 
 company or for the superintendent individually, 
 and of his implied authority or the subsequent 
 ratification of his acts, are proper questions for 
 the jury. N. Y. Supr. Ct., 1871, Vincent v. Sands 
 42 How. 231 ; S. C, 11 Abb. N. S. 866 ; 83 N Y 
 Supr. (1 J. & Sp.) 611. , 
 
 335. Where the evidence as to the extent of 
 
PRACTICE. 
 
 587 
 
 an agent's authority is conflicting, the question 
 whether it extended to the matter in question in 
 the suit should be submitted to the jury. Sup. 
 Ct., 1876, McArthur v. Soule, 6 Hun, 63. 
 
 336. Baggage, what is. In an action against 
 a carrier for the loss of baggage, when the 
 article lost is or may be wearing apparel, it is a 
 question for the jury to determine whether, 
 upon tlie facts in the particular case, it was 
 such as the traveller was entitled to carry as 
 baggage, and the finding of the jury, when 
 sustained by credible testimony, is conclusive. 
 The court cannot limit the quantity or value of 
 baggage, for whicli a carrier sliall be liable, as a 
 matter of law. U.S. Cir. Ct., 1875, Fraloffy. 
 N. Y. Central Sf Hudson JRiv. R R. Co., 48 How. 
 535. 
 
 387. Bona fides of instruments. In an 
 action by a second mortgagee of chattels to 
 recover the property from the first mortgagee, 
 wlio had taken possession on default, and who 
 also claims under a mortgage and bill of sale sub- 
 sequent to plaintiff's mortgage,wliere the validity 
 of plaintiff's mortgage is not questioned, the 
 bona fides of the subsequent instruments is im- 
 material, and tlie court is not bound to submit 
 that question to the jury although requested so 
 to do. Ct. App., 1876, Campbell v. Birch, 60 N. Y. 
 (15 Sick.) 214. 
 
 838. Bona fides of purchase. In an action 
 to recover possession of goods from the sheriff 
 by one claiming to liave purchased them from 
 the attachment debtor, where there is evidence 
 tending to show that the sale was fraudulent as 
 to creditors, the question of its bona fides is one 
 of fact for the jury. Ct. App., 1874, May v. 
 Walter, 66 N. Y. (11 Sick.) 8. 
 
 389. Boundary line. Where there is con- 
 flicting testimony as to the ' declarations of a 
 former owner as to the location of a boundary 
 line, the question whether there was a practical 
 location of it on a certain line, and an acquies- 
 cence therein, is one of fact entirely for the 
 jury. Sup. Ct., 1870, Smith v. McNamara, 4 
 Lans. 169. 
 
 340. Care. In an action against a bank to 
 recover for bonds deposited with it under a con- 
 tract of bailment for the benefit of both parties, 
 the question wliether such bank used ordinary 
 care for the safety thereof, under the circum- 
 stances of the case, and in view of the warning 
 which the oflBcers of such bank had received 
 that there was danger of robbery, is one for the 
 jury and not for the court. N. Y. C. P., 1874, 
 First Nat. Bank of Lyons v. Ocean. Nat. Bank of 
 N. Y. City, 48 How. 148. 
 
 341. Cause of death. In an action on a life 
 insurance policy containing a proviso, avoiding 
 it in case die insured should die in the known 
 violation of any law, where it appeared that the 
 insured was shot by the owner of a team which 
 lie was attempting to take by force to secure an 
 alleged debt, but the evidence was conflicting 
 whether the wound was inflicted during a scuffle, 
 or whether the owner of the team had ap- 
 parently abandoned it and started home when 
 he turned about suddenly and fired the fatal 
 shot, — Held, that the question should have 
 been left to the jury whether or not the death 
 was within the proviso. Gkovek, J., dissents. 
 Bradley v. Mut. Ben. Life Ins. Co., 45 N. Y. (6 
 Hand,) 422; Rev'g S. C., 3 Lans. 341. 
 
 842. Change of possession. The question 
 whether there was an immediate delivery and 
 actual and continued change of possession of 
 mortgaged chattels, so as to make the mortgage 
 valid, is a proper one for the jury, and their ver- 
 
 dict is conclusive on that point. Sup. Ct., 1874, 
 Smith V. Post, 1 Hun, 516. 
 
 343. Conation. A railroad company laying 
 its track in a public street is bound to put it 
 down and keep it in a safe condition ; and the 
 question whether or not it has performed its 
 duty in that respect, is one for the jury. N. Y. 
 C. P., 1870, Worsier v. Forty-second Street E. R. 
 Co., 3 Daly, 278. 
 
 844. Conformity to sample. In case of a 
 sale by sample, the question whether the bulk 
 of the article sold was equal to the sample is a 
 proper one for the jury. N. Y. Supr. Ct., 1874, 
 Osborn v. Gantz, 38 N. Y. Supr. (6 J. & Sp.) 148; 
 Aff'd, S. C, 60 N. Y. (15 Sick.) 540. 
 
 845. Contested facts. All questions of fact, 
 that are contested to that degree by the evidence 
 that sensible men might conscientiously arrive 
 at different conclusions upon the same evidence, 
 should be submitted to the jury. N. Y. Supr. 
 Ct., 1870, Howard v. Smith, 42 How. 300 ; S. C, 
 33 N. Y. Supr. (IJ. & Sp.) 124. 
 
 346. Thus, in an action upon a judgment ob- 
 tained in another State, the record of which 
 judgment shows an appearance byattorneys for 
 tlie defendant, if he denies tliat such attorneys 
 had any authority to appear for him, and pro- 
 duces evidence tending to sustain that denial, 
 the question of their authority should be sub- 
 mitted to the jury. lb. 
 
 347. Credibility of witness. Although it 
 may appear in evidence upon the trial of an 
 action, that a witness then examined has sworn 
 differently as to a material fact on a previous 
 occasion, yet the question of his credibility is 
 entirely for the jury, under proper instructions 
 from the court, and liis testimony should be sub- 
 mitted to them in connection with the other evi- 
 dence. Sup. Ct., 1872, Warren v. Haight, 62 
 Barb. 490. 
 
 348. Although the positive testimony of an 
 unimpeached, uncontradicted witness cannot be 
 arbitrarily or capriciously disregarded by the 
 court or jury, yet they have the right in all cases 
 to determine whether witnesses are credible ; 
 and if there is anything in the testimony of a 
 witness which tends to impeach his credibility, 
 such as vague and conflicting or incredible state- 
 ments, or to show a want of intelligence or mem- 
 ory which incapacitates him from represent- 
 ing a past event so that reliance can be placed 
 upon it, the jury, or the court acting in place of 
 a jury, would be justified in disregarding his 
 testimony. N. Y. Supr. Ct., 1872, Stafford v. 
 Leamy, 43 How. 40 ; S. C, 34 N. Y. Supr. (2 J. 
 & Sp.) 269. 
 
 349. It is the province of the jury to deal with 
 facts, and, especially in cases where there is a 
 conflict of testimony between parties and wit- 
 nesses who are equally respectable and unim- 
 peached, to decide as to whose testimony is en- 
 titled to the greatest credit. Sup. Ct., 1871, 
 Morss V. Sherrill, 63 Barb. 21. 
 
 350. The amount of credit to be given to the 
 testimony of witnesses tending to contradict 
 official declarations or returns, is for the jury to 
 determine. Sup. Ct., 1874, People ex rel. Stemm- 
 ler V. McGuire, 2 Hun, 258; Aff'd, S. C, 60 N. Y. 
 (15 Sick.) 640. 
 
 351. Credit to -whom given. Where an 
 agent on purchasing goods for his principal, dis- 
 closes the name of the principal and authorizes 
 the vendor to charge them either to himself or 
 his principal, and the vendor, not knowing the 
 principal, charges them to the agent, the ques- 
 tion whether he gave such exclusive credit to 
 the agent as to discharge the principal is one 
 
588 
 
 PRACTICE. 
 
 for the jury." Sup. Ct., 1875, Maryland Coal 
 Co. V. Edwards, 4 Hun, 432. 
 
 862. Damages. In an action by a canal boat 
 owner to recover damages for a delay in deliv- 
 ering a cargo of potatoes to be carried to New 
 York, by reason of which the boat was stopped 
 by ice and compelled to winter at Schenectady ; 
 and for injuries received at that place b}' the 
 heating of the potatoes, and by the action of 
 manure used for their protection, and of the set- 
 ting of the boat on an uneven bottom ; and also 
 demurrage for delay in unloading in New York ; 
 the question of the damages arising from each 
 of the several sources of injury may properly be 
 submitted to the jury. Sup. Ct., 1874, Starbird 
 T. Barrows, 2 Hun, 108 ; Aff'd by Ct. App. 
 
 353. Diversion of water. In an action 
 against an overseer of highways for wrongfully 
 diverting a watercourse on plaintiff's land, 
 where the legality of the diversion depended on 
 various questions of fact which were and fairly 
 might be controverted upon the evidence, it 
 was error to withdraw the question from the 
 jury, and pass upon ii as a question of law, by 
 instructing them that the diversion was wrong- 
 ful, and that the plaintiff was entitled to recover 
 the damages sustained thereby. Sup. Ct., 1871, 
 Moran v. McClearns, 41 How. 289; S. C, 4 
 Lans. 288 ; 60 Barb. 388. 
 
 354. Doubtful words, etc., in -writing. The 
 question what a word, letter or figure, in a written 
 instrument, claimed to be doubtful, was intended 
 to be, is one of fact to be determined by the 
 jury, when the case in which it arises is tried 
 by jury. Sup. Ct., 1871, Arthur v. Roberts, 60 
 Barb. 580. 
 
 355. Due effort to perform. In an action 
 against a common carrier, to recover damages 
 resulting from its failure to notify the consignee 
 of the arrival of goods, the question whether or 
 not, under the circumstances, due and reason- 
 able effort was made to find such consignee, is 
 a proper one for the jury. Ct. App., 1872, Zinn 
 V. New Jersey Steamboat Co., 49 N. Y. {4 Sick.) 
 442. 
 
 356. Employment by defendant. In an 
 action by a real estate broker to recover his com- 
 missions on a sale, where there was evidence 
 that, the broker not obtaining an offer Bu£Scient 
 to cover the mortgages on the property, one of 
 which was held by his own wife, the owner 
 placed the matter in charge of his attorney, who 
 informed the broker of that fact, and that he 
 wished to deal with him as the agent of the 
 mortgagees, and that he no longer acted as brok- 
 er in the matter but had an adverse interest, and 
 the broker replied that he acted for the other 
 parties entirely ; but he continued his efforts to 
 sell, and finally found a purchaser to whom the 
 property was sold, and was silent as to his com- 
 pensation at the time of consummating the trade, 
 and did not mention it in a written instrument 
 stating the amount which the mortgagees would 
 " accept in full satisfaction of all claims whatso- 
 ever upon said lots," — Held, that the question 
 whether the plaintiff acted as the broker of the 
 defendant in negotiating the sale should have 
 been submitted to the jury, and it was error to 
 instruct them merely to find whether the plain- 
 tiff relinquished his commissions. Ct App., 
 1874, Thornal V. Pitt, 58 N. Y. (13 Sick.) 683; 
 Rev'g S. C, 36 N. Y. Supr. (4 X & Sp.) 379. 
 
 357. Extent and use of way. Although 
 the extent of a way and the manner of its use, 
 in an action involving such way, are proper 
 questions for the determination of a jury, yet, 
 when the action is in equity, and the relief de- 
 
 manded is purely equitable, the defendant is not 
 entitled, as a matter of right, to a trial by jury, 
 but that is within the discretion of the court. 
 Sup. Ct., 1872, Rex/ord v. Marquis, 7 Lans. 249. 
 
 358. Fraud. In an action for the recovery of 
 personal property, wherein the question of fraud 
 in the defendant in obtaining possession of the 
 property is involved, the facts and circumstances 
 tending to establish such fraud should be sub- 
 mitted to and passed upon by the jury. Sup. 
 Ct., 1874, Salomon v- Van Praag, 48 How. 338. 
 
 359. Where fraud, concealment or imposition 
 by the shipper in respect to the character or 
 value of the goods shipped, is set up by a carrier 
 as a defense to an action for their loss, if the 
 facts are clear and undisputed, and constitute a 
 fraud or imposition in law, regardless of the in- 
 tention of the shipper, the question is one for 
 the court ; but when it is to be determined upon 
 conflicting evidence, or inferences to be deduced 
 from a variety of circumstances, in regard to 
 which, though uncontroverted, there is room for 
 a fair difference of opinion among intelligent 
 men, it must be determined as a question of fact, 
 and be submitted to the jury. N. Y. Supr. Ct., 
 1874, Maguin v. Dinsmore, 38 N. Y. Supr. (6 J. & 
 Sp.) 248. 
 
 360. In an action to recover the value of wine 
 sold by the defendant on execution against third 
 parties, where there is no contradictory evidence 
 on the question of title, and no evidence to prove 
 fraud in the sale, except some evidence of inade- 
 quacy in the price, and slight evidence that the 
 sale was made to prevent the wine being reached 
 by a creditor, but none affecting the purchaser 
 with guilty knowledge or a dishonest purpose, 
 it is not error to refuse to submit to the jury the 
 question whether the sale was made in fraud of 
 such creditor. Sup. Ct., 1872, Jaeger v. Kel/u, 
 44 How. 122 ; Aff'd, S. C, 52 N. Y. (7 Sick.) 274. 
 
 361. Where a wife carries on a business and 
 employs her husband therein, the question wheth- 
 er the transaction is fraudulent as to creditors 
 should be submitted to the jury, if the evidence 
 is conflicting or the circumstances of such a 
 character as to create doubt or uncertainty. 
 Sup. Ct., 1869, Whedon v. Champlin, 59 Barb. 61. 
 
 362. In an action upon a marine policy, where 
 the answer puts in issue the interest of the as- 
 sured and the value of the cargo as claimed, and 
 the seaworthiness of the vessel, and avers fraud 
 in obtaining the insurance and conducting the 
 voyage, and that the loss was not occasioned by 
 any adequate sea peril, but was planned from 
 the beginning ; it is for the jury to determine 
 whether the fraudulent scheme, alleged to have 
 been entered into to defraud the underwriters, 
 was established by the facts and circumstances, 
 and such determination will involve the question 
 of the credibility of the witnesses and value of 
 their testimony, and the ownership or insurable 
 interest of the plaintiff. N. Y. Supr. Ct., 1874, 
 Sturm V. Atlantic Mut. Ins. Co., 38 N. Y. Supr. (6 
 J. & Sp.) 282. *- 
 
 363. An overvaluation of the goods by the as- 
 sured, if gross, affords a presumption of fraud, 
 but whether or not it was fraudulently made is a 
 question for the jury; and in determining it 
 they may take into consideration the fact that 
 they were purchased with depreciated bonds. lb. 
 
 364. Fraudulent intent. The question of 
 fraudulent intent in case of a sale of property 
 without a change of possession, must under the 
 Revised Statutes, be submitted to the jury, and 
 cannot be taken from them and be decided by 
 the court as a question of law. §up. Ct., 1866, 
 Spicei- V. Waters, 65 Barb. 227. So held, where 
 
PRACTICE. 
 
 589 
 
 there was some evidence tending to repel the 
 legal presumption of fraud. Sup. Ct., 1876, Hol- 
 lacher v. O'Brien, 6 Hun, 277. S. P., Tilson v. 
 TerwiUager, 56 N. Y. (11 Sick.) 273. 
 
 365. In an action by a married woman for 
 the value of property levied upon under an exe- 
 cution against lier husband, where it appears 
 tliat the business was carried on ostensibly by 
 the husband, but it was alleged that the capital 
 was wholly furnished by the wife, and the hus- 
 band received no compensation except board 
 and clothing, the question of fraudulent intent 
 in such arrangement is one for the jury. Brook- 
 lyn City Ot., 1871, O'Leary v. Walter, 10 Abb. N. 
 S. 439. 
 
 366. In such a case the first question to be con- 
 sidered is whether the property did really belong 
 to the wife in her own right, and, in that case, 
 second, whether the business has been so carried 
 on as to lead persons dealing with the concern, 
 or with the liusband, to believe that, he was the 
 proprietor, so that she should be held estopped 
 from asserting her title as against them. lb. 
 
 367. Good faith. In all judicial inquiries 
 where the good faith of a party to the action is 
 a substantive matter, the determination of that 
 question upon all the facts and circumstances is 
 for the jury. N. Y. Supr. Ct., 1873, Bailei/ v. 
 Griswold, 36 N. Y. Supr. (4 J. & Sp.) 68. 
 
 368. Thus, in an action on a promissory note 
 by an indorsee, where there is evidence upon the 
 question of the good faith of the transfer, that 
 question should be submitted to the jury. ' lb. 
 
 369. In an action for slander in tlie use of 
 words whicli are claimed to have been privileg- 
 ed under the circumstances in whicli tliey were 
 spoken, the questions of tlie good faitli of the 
 defendant, his belief in the truth of the state- 
 ment, and the existence of actual malice, should 
 be submitted to the jury. N. Y. Supr. Ct., 1872, 
 Clapp v. Devlin, 35 N. Y. Supr. (3 J. & Sp.) 170. 
 
 370. If tlie slanderous words charged were 
 evidently not used in a technical sense as charg- 
 ing a crime, ^he question what the defendant 
 meant by them should be submitted to the jury, 
 lb. 
 
 371. Gratuitous bailment. In an action 
 against a bank for the loss of securities deposit- 
 ed with it, in which it appeared that the bank 
 had formerly been accustomed to receive pack- 
 ages for safe keeping, and had not wholly dis- 
 continued the practice at the time of receiving 
 plaintiff's ; that no notice had been given to its 
 subordinate officers to reject packages, or to 
 others that they would not be received ; and it 
 not appearing that such packages had been kept 
 without charge, it was a question for the jury 
 whether the bailment was gratuitous. Sup. Ct., 
 1874, Pattison v. Syraeitse Nat. Bank, 1 Hun, 606. 
 
 372. Increase of risk. In an action on a policy 
 of insuranpe containing a condition rendering it 
 void in case of an increase of risk by tlie act of 
 the owner, where there is evidence that the as- 
 sured kept on the premises a jug of crude petro- 
 leum oil, and used it for medicinal purposes, and 
 that it tended to increase the risk, the question 
 whether the risk was actually and materially 
 increased by it is one for the jury. Com. App., 
 1874, Williams v. People's Fire Ins. Co., 67 N. 
 Y. (12 Sick.) 274. 
 
 373. Intention. In an action to recover back 
 goods delivered on a contract of sale, upon re- 
 fusal of payment, the question of the intent of 
 the parties as to the delivery being absolute or 
 conditional, and as to the waiver of immediate 
 payment, was properly submitted to the jury. 
 N. Y. Supr. Ct., 1874, Osbom v. Gantz, 38 N. Y. 
 
 Supr. (6 J. & Sp.) 148 ; AfE'd, S. C, 60 N. T. (15 
 Sick.) 640. 
 
 374. Where an application for insurance on 
 goods originally read " valued at invoice and 
 five per cent, unless otherwise agreed," -and 
 the words " invoice and five per cent." were 
 afterward stricken out and the figures " $213,- 
 000 " written in, and the evidence in an action on 
 the policy leaves it in doubt whether that sum 
 was fixed as the amount of " invoice and five 
 per cent." or as a valuation agreed upon under 
 the other clause, the defendants have the right 
 to have the question determined by the jury. 
 N. Y. Supr. Ct., 1874, Sturm v. Williams, 38 N. 
 Y. Supr. (6 J. & Sp.) 325. 
 
 876. Knowledge of alteration. In an ac- 
 tion upon a promissory note, given in payment 
 for coal previously contracted for, on presenta- 
 tion of a bill of lading which differed in its terms 
 from the contract as originally made, wliere- 
 in tlie defendant sets up as a defense a failure 
 of consideration by reason of the non-delivery 
 of the coal, the question whether the defendant 
 gave the note with knowledge of the alteration 
 of the terms of the contract in the bill of lading 
 is a proper one for the jury. Sup. Ct., 1874, 
 Hammett v. Barnard, 1 Hun, 198 ; Aff'd by Ct. 
 App. 
 
 376. Levy in excess of authority. In an 
 action to charge the sureties in an indemnity 
 bond, conditioned to save the sheriff harm- 
 less for levying upon and selling under an 
 execution, any and all personal property whicli 
 he might judge to belong to the judgment 
 debtor, for the acts of the sherift'in levying upon 
 property claimed by third parties, if there is 
 any doubt upon the whole testimony wliether 
 in making the levy the sheriff exceeded the dis- 
 cretion or authority conferred upon him by the 
 bond, as to the particular property levied on, it 
 should be submitted to the jury. N. Y. Supr. 
 Ct., 1875, Chapman v. O'Brien, 39 N. Y. Supr. 
 (7 J. & Sp.) 244. 
 
 377. Libel, application to plaintiff. In an 
 action for libel, if the application or meaning of 
 the words is ambiguous, or uncertain, and they 
 are capable of a construction which would make 
 them actionable, although, at the same time, an 
 innocent sense can be attributed to them, it is 
 for the jury to determine, upon all the circum- 
 stances, whether they were applied to the plain- 
 tiff and in what sense they were used. Ct. App., 
 1871, Sanderson v. Caldwell, 46 N. Y. (6 Hand,) 
 398. 
 
 378. Malpractice. In an action against a 
 physician and surgeon, to recover damages for 
 negligence and malpractice in setting and treat- 
 ing a dislocated limb, the question wliether he 
 failed to use the means shown by experience to 
 be proper and necessary in order to justify a 
 surgeon in assuming tiiat he lias restored the 
 bones to their places is for the jury. Sup. Ct., 
 1871, Carpenter v. Blake, 60 Barb. 488. 
 
 379. The question whether the failure of such 
 surgeon to discover a protuberance indicating 
 that the bones were not restored to their places, 
 was evidence of want of attention, or want of 
 skill, is also one for the jury. lb. 
 
 380. Where surgeons differ as to the necessity 
 of using a sling, after setting a dislocated limb, 
 it is for the jury to weigh the reasons assigned 
 for and against using it, and say whether it was 
 negligence in the surgeon to omit the sling or 
 not. lb. 
 
 381. The materiality of a defect in the title 
 to real estate, on account of which the vendee 
 seeks to rescind a contract for its sale, where it 
 
590 
 
 PRACTICE. 
 
 depends upon and is an inference to be dravm 
 from circumstances, is a question of fact for the 
 jury ; but where it turns upon the construction 
 of a writing, and no special circumstances are 
 to be taken into the account, it is a question of 
 law for the court. Com. App., 1874, Stokes v. 
 Johnson, 67 N. Y. (12 Sick.) 678. 
 
 882. Mental anguish. In an action for a per- 
 sonal injury caused by negligence, the question 
 wliether the plaintiff suffered mental anguish 
 from tlie injuries or not, is one for the jury. 
 Sup. Ct., 1862, Matteson v. New York Cent. R. R. 
 Co., 62 Barb. 364. 
 
 383. Misrepresentation. A question of 
 fraud or misrepresentation arising upon the 
 evidence given on the trial of a cause, should 
 be submitted to the jury, if a party de- 
 mands to have it so submitted, and should not 
 be decided by the court. N. Y. C.'P., 1871, Up- 
 ton V. Bed/ow, 42 How. 121 ; S. C, 4 Daly, 216. 
 
 384. Mistake, etc. In an action to recover 
 back money paid on checks by defendant's book- 
 keeper, under a mistake of facts and without 
 authority, the questions whether such payment 
 was made under a mistake of fact entitling the 
 plaintiffs to recover it back, and whether plain- 
 tiffs were legally charged' as indorsers, were 
 properly submitted to the jury. Ct App., 1874, 
 
 Walbridge v. Ocean Nat. Bk. of N. Y., 69 N. Y. 
 (14 Sick.) 642. 
 
 885. Negligence. In an action upon a negoti- 
 able promissory note, by an assignee thereof, 
 where the defense is set up that it was signed 
 by tlie maker under the belief that it was a 
 mere contract to act as agent for a patented 
 machine, and there is some evidence tending to 
 show that he was not negligent in signing it, the 
 question of his negligence should be submitted 
 to the jurj'. Sup. Ct., 1875, FenUm t. Kobinson, 
 4 Hun, 252. 
 
 386. In an action against a carrier, for goods 
 destroyed by fire upon its wharf, where the 
 plaintiff's testimony tended to show that a large 
 amount of other goods was destroyed at the 
 same time, that there were no means or appara- 
 tus at the wharf for extinguishing fires, and 
 that the private watchman in whose charge the 
 wharf was left was not at his post when the fire 
 broke out ; and the defendant failed to produce 
 the watchman, explain the origin of the fire, or 
 controvert the testimony of the plaintiff on the 
 points stated, — Held, that the case should have 
 been submitted to the jury on the question of 
 negligence. Ct. App., 1872, J. Russell Man/. 
 Co. V. N. H. Steamboat Co., 60 N. Y. (5 Sick.) 
 121. 
 
 887. In an action against a carrier for the 
 value of goods alleged to have been lost through 
 its negligence, proof of the non-delivery of the 
 goods to the consignee, and that some months 
 after shipment the box which had contained 
 them was picked up empty, without further 
 facts to explain the non-delivery, — Held, to war- 
 rant the submission of the question of negli- 
 gence to the jury. Ct. App., 1874, Magnin v. 
 Dinsmore, 66 N. Y. (11 Sick.) 168; Eev'g S. C, 
 35 N. Y. Supr. (3 J. & Sp.) 182. 
 
 388. Where a quantity of butter consigned to 
 the order of the shipper, was delivered by the 
 carrier to one S upon his producing a letter 
 from the consignor to himself containing the 
 following clause. " The roll sent you to-day you 
 will find of good quality," — Held, in an action 
 against such carrier for a conversion, that the 
 letter did not authorize the delivery to S, and 
 writing it was notnegligence per se which would 
 discharge the carrier, but tliat question was one 
 
 for the jury, to be determined from the whole 
 evidence. Ct. App., 1872, Viner v. New York, 
 etc. Steamship Co., 50 N. Y. (6 Sick.) 23. 
 
 389. In an action by the tenant of the lower 
 part of a building against his landlord, who 
 occupies the upper part, for injuries to property 
 by leakage of oil, &c., from such upper part, 
 alleged to have been caused by the negligence 
 of the landlord in not keeping the premises in 
 repair, where the evidence is not such as to 
 authorize the court to determine the question of 
 negligence as a matter of law, it should bp sub- 
 mitted to the jury. The fact that the landlord 
 has not bound himself to repair is not sufficient 
 ground for dismissing the complaint. N. Y. 
 Supr. Ct., 1873, Stapenhorst v. American Manf. 
 Co., 46 How. 610 ; S. C, 16 Abb. N. S. 366 ; 36 
 N. Y. Supr. (4 J. & Sp.) 392. 
 
 390. Whether the plaintiff, having logs at a 
 mill to be sawed, was guilty of contributory 
 negligence in going into the mill to give direc- 
 tions about them, and standing parti}' in front 
 of the saw, in motion at the time he received 
 the injury complained of, is a question of fa<'t 
 for the jury. Ct. App., 1874, Adcart v. Lanslig, 
 48 How. 374; S. C, 69 N. Y. (14 Sick.) 646. 
 
 391. The question whether a plaintiff, wl.d 
 left his horse standing in a public thoroughfare, 
 not fastened or attended by any one, was guilty 
 of negligence contributing to the injury caused 
 by his becoming frightened and running away, 
 is one which depends upon the disposition and 
 habits of the animal, the place where and tlie 
 length of time it was left standing, as well as 
 all the surrounding circumstances of the particu- 
 lar case, and is therefore a question of fact for 
 the jury to determine. N. Y. C. P., 1873, Camp- 
 bell V. Kearney, 46 How. 87. 
 
 892. Where a person driving along an em- 
 bankment near a railroad crossing, which was 
 protected a portion of the way by a railing, 
 being desirous of turning his horse's eyes from 
 an approaching train, backed his carriage toward 
 the railing and went through an opening tlierein 
 where it had negligently been sufiFered to decay, 
 which opening he might have seen by looking 
 out of the back of the carriage where it was open, 
 or by patting his head out at the side and looking 
 behind, but not otherwise, — Udd, in an action 
 by him for the damage, that these facts did not 
 establish contributory negligence, but presented 
 a question for the jury. Com. App., 1873, Gil- 
 lespie V. City ofNewburgh, 64 N. Y. (9 Sick.) 468. 
 
 393. Where a person, in attempting to cross a 
 street, and to avoid both a street car and other 
 veliicles, either does not see or loses sight of a 
 passing cart, driven at an unusual rate of speed, 
 and is struck and injured by it after passing the 
 car, in an action for such injury the question of 
 negligence and contributory negligence should 
 be submitted to the jury. Com. App., 1873, 
 Brooks V. Schwerin. 54 N. Y. (9 Sick.) 343. S. P., 
 Belden v. Baxter, 58 N. Y. (11 Sick.) 411. 
 
 394. The questions whether a canal contractor 
 was negligent in not discovering the defective 
 condition of a bridge in his district, and whether 
 the defects were so far concealed as to relieve 
 him from liability, are for the jury. Sup. Ct., 
 1872, Stack v. Bangs, 6 Lans. 262. S. P., French 
 t; Donaldson, 5 Lans. 293 ; Aff'd, 57 N. Y. (12 
 Sick.) 496. 
 
 395. The question whether the plaintiff was 
 guilty of contributory negligence in overloading 
 the bridge, or in driving upon it in an improper 
 manner, is also one for the jury, unless his neg- 
 ligence is entirely clear. lb. 
 
 396. In an action to recover damages for a 
 
PRACTICE. 
 
 591 
 
 personal injury caused by an accumulation of 
 ice upon a city sidewalk, where tliere was evi- 
 dence tending to sliow that such ice had re- 
 mained there long enough to warrant the jury 
 in attributing negligence to the city for its con- 
 tinuance, and tliat it was at tlie time covered 
 by a ligl\t covering of snow, whicli concealed it 
 from plaintiff's view, the questions of negligence 
 on the part of the defendant and contributory 
 negligence on the part of tlie plaintiff were 
 properly left to the jury. Sup. Ct., 1872, Mosey 
 V. City of Troy, 61 Barb. 580. 
 
 397. In an action to recover damages for in- 
 juries sustained in consequence of defects in a 
 sidewalk, the question whether tlie intoxicated 
 condition of the plaintiff at the time of the ac- 
 cident contributed to the injury, is for the jury 
 to determine. Sup. Ct., 1875, Healy v. Mayor, 
 etc. of New York, 3 Hun, 708. 
 
 398. A person who falls into an excavation 
 for a sewer at a street crossing, left open and 
 without barrier or light upon a dark and rainy 
 night, is not necessarily guilty of contributory 
 negligence, barring a recovery for injuries sus- 
 tained thereby, in attempting to cross, although 
 she may previously have known its dangerous 
 condition, there being nothing at tlie time to 
 call her attention to it ; but the whole question 
 is one for the jury. N. Y. C. P., 1871, Bateman 
 V. Ruth, 3 Daly, 378. 
 
 399. All questions of negligence properly be- 
 long to the jury, and it is the duty of the court 
 to submit such questions to them. Sup. Ct., 
 1862, Matteson v. New York Cent. R. R. Co., 62 
 Barb. 364. 
 
 400. In an action for a personal injury caused 
 bj' the cars running off the track at a place where 
 !\ gang of men were engaged in relaying ties, 
 and attempting to do so without interfering 
 with the passage of trains, it is a question for 
 the jury whether the company was or was not 
 guilty of negligence in not seeing that tlie per- 
 son in charge of such men was provided with 
 an accurate time-piece, so that he might know 
 when to expect the next train, and have the 
 track in order therefor. lb. 
 
 401. Wliere the evidence bearing upon the 
 facts of negligence is conflicting, it is error to 
 take that question from the jury. N. Y. Supr. 
 Ct., 1870, Belton v. Baxter, 2 Sweeny, 339. S. 
 P. Thurber v. Harlem, Br. M. and F. R. R. Co., 
 60 N. Y. (15 Sick.) 326; Roach \. Flushing and 
 Northside R. R. Co., 58 N. Y. (13 Sick.) 626 ; 
 Salter v. Utica and Black Riv. R. R. Co., 69 N. 
 Y. (14 Sick.) 631; Weber v. N. Y. Cent, and 
 Hud. Riv. R. R. Co., 58 N. Y. (13 Sick.) 451. 
 
 402. The failure of a railroad company to give 
 other notice of the backing of a train, which 
 had been standing for some time obstructing the 
 usual passage of a street, than the sounding of a 
 whistle at the head of the same, — Held, sufficient 
 to authorize the submission to the jury of the 
 question of negligence. Com. App., 1873, £aton 
 V. Erie Railway Co., 51 N. Y. (6 Sick.) 544. 
 
 403. In an action against a railroad company 
 for in j uries caused by negligence at a crossing, 
 where two witnesses swear positively tliat the 
 bell on the engine was rung, and two others 
 swear that they heard it ring, there must be 
 something more than the testimony of one or 
 more witnesses tliat they did not hear it, to au- 
 thorize the submission of the. question to the 
 jury. It must appear tliat they were looking, 
 watching and listening for it, and that their at- 
 tention was directed to the fact. Ct. App., 1875, 
 Culhane v. N. Y. Cent, and Bud. Riv. R R. Co., 
 60 N. Y. (15 Sick.) 133. 
 
 404. In an action to recover damages for cat- 
 tle, whjch passed from the highway, through a 
 gate ill a fence erected by a railroad company, 
 upon its track, and were killed, where there 
 was evidence that the gate was used by persons 
 in passing to and from the freight depot of the 
 company ; — Held, that whether the gate was so 
 used for the accommodation of the company, or 
 of persons doing business at the depot, and 
 whether on the night in question it was left un- 
 closed through the carelessness of the com- 
 pany's agents, so as to make the company liable, 
 was a proper question for the jury. Sup. Ct., 
 
 1874, Spinner v. N. Y. Cent, and H. R. R R. Co., 
 2 Hun, 421. 
 
 405. In an action for injuries caused by de- 
 fendant's negligence, he has the right to have 
 the question of his negligence submitted to the 
 jury, if he requests i^, but where such negli- 
 gence on his part is clearly establislied, and he 
 makes no such request, it is not error for the 
 court to Iiold it so established, and submit to the 
 jury merely the question of plaintiff's contribu- 
 tory negligence. N. Y. Supr. Ct., 1873, Myers v. 
 Dixon, 45 How. 48 ; S. C, 35 N. Y. Supr. (3 J 
 & Sp.) 390. 
 
 400. In an action ^o recover damages for an 
 injury caused by defendant's negligence, the 
 negligence of the plaintiff contributing to the 
 accident may so clearly appear as to render it 
 the duty of the judge to dismiss the complaint ; 
 but where the evidence discloses facts and cir- 
 cumstances which may fairly cause a difference 
 of opinion and judgment as to whether the 
 plaintiff was guilty of any negligence, he has a 
 right to have the question of negligence sub- 
 mitted to the jury. N. Y. Supr. Ct., 1872, Pen- 
 dril v. Second Avenue R. R. Co., 43 How. 399 ; S. 
 C, 34 N. Y. Supr. (2 J. & Sp.) 481. 
 
 407. In an action for injuries received by be- 
 ing thrown from a street car while getting on 
 at the front platform, if the evidence leaves it 
 uncertain whether the motion of the car at the 
 time was sufficient to render it unsafe for a man 
 of common prudence to get on, the question 
 should be left to the jury. N. Y. Supr. Ct., 
 
 1875, Maher v. Central Park, N. and E. R. R. R. 
 Co., 39 N. Y. Supr. (7 J. & Sp.) 155. 
 
 408. Hurrying up the horses while the pas- 
 senger is getting on an.d before he is fairly on 
 the car, is evidence of negligence on the part of 
 the driver, which should be submitted to the 
 jury. lb. 
 
 409. The question whether a person was guilty 
 of contributory negligence in approaching a 
 horse car, which has stopped for him, and at- 
 tempting to enter it on the side next to anotlier 
 track, such as will prevent his recovering for an 
 injury received in consequence of the starting of 
 the car after he had got hold of the handle and 
 had one foot on tlie step, and his being dragged 
 along in that position until struck by a car pass- 
 ing on the other track, is one for the jury upon the 
 evidence. Sup. Ct., 1874, Dale v. Brooklyn City, 
 H. P. i- P. P. R. Co., 1 Hun, 146 ; Aff'd, 60 
 N. Y. (15 Sick.) 638. 
 
 410. Evidence that the plaintiff was accus- 
 tomed to stable his horses in a barn situated 
 within about two feet of the fence beside a rail- 
 road, and to throw out__the straw bedding and 
 manure near the track, 'and that it had accumu- 
 lated there for several months of a hot, dry sea- 
 son, when it was set on fire by a spark from a 
 locomotive, is sufficient to require the question 
 of contributory negligence to be submitted to the 
 jury. Sup. Ct., 1875, Collins y.N. Y. CenU^- Hud. 
 Riv. R. R Co., 5 Hun, 499. 
 
592 
 
 PRACTICE. 
 
 411. The law does not hold an infant to the 
 same degree of care and caution as an older per- 
 son ; and in an action for an injury sustained by 
 an infant througli tlie negligence of another, tlie 
 question wliether, under all the circumstances, 
 he was guilty of contributory negligence, is one 
 of fact for the jury. Sup. Ct., 1874, Haycroft v. 
 Lake Shore ^ M. S. Ey. Co., 2 Hun, 489. 
 
 412. Where he receives the injury in attempt- 
 ing to obey instructions of a person on the car on 
 which lie wishes to ride, supposing such person 
 to be the driver, the question of his contributory 
 negligence is for the jury. Com. App., 1872, 
 Mowry v. Central City Ry. Co., 51 N. Y. (6 Sick.) 
 666. 
 
 413. Whether or not it is negligence in a pas- 
 senger by railroad, when put to h^r election 
 either to be carried by the station at which she 
 designed stopping, or to leave the cars while 
 moving slowly, to attempt the latter, is a proper 
 question for the jury. Ct. App., 1872, Filer v. 
 New Ym-k Central R. R. Co., 49 N. Y. (4 Sick.) 47. 
 
 414. While it cannot be held as matter of law 
 that, when an injury is received by one stepping 
 from a railroad train in motion, that act 
 alone always constitutes contributory negligence, 
 neither is it, in every case, a question of fact for 
 the jury. Where the facts are undisputed, the 
 question of contributory negligence may become 
 one of law. Ct. App., 1874, Morrison v. Erie 
 RailwauCo., 56 N. Y. (11 Sick.) 302. 
 
 415. Where the proofs showed that the plain- 
 tiff, when approaching a railroad crossing where 
 there was a double track, looked east and seeing 
 a locomotive head light approacliing, waited 
 until the train had nearly passedand then started 
 up, looking west and seeing nothing, but just as 
 his horse got upon the track the head light of a 
 locomotive coming from the west flashed upon 
 him, and almost immediately the engine struck 
 his horse, — Held, that the question of plaintiff's 
 negligence was a proper one for the jury. Ct. 
 App., 1875, Carr v. N. Y. Cent. #• Bud. Riv. R. R. 
 Co., 60 N. Y. (15 Sick.) 633. 
 
 416. In an action against a railroad company 
 for negligently running over and killing a person 
 at a crossing, although it appears that he did not 
 look to see whether a train was approaching, 
 yet, if it also appears that on account of a driv- 
 ing snow storm he could not have seen the train 
 in time to avoid it, the question of concurring 
 negligence on his part should be submitted to the 
 jury. Sup. Ct., 1871, Hackfard v. New York 
 Central ^ Hud. Riv. R. R. Co., 13 Abb. N. S. 18 ; 
 S. C, 6 Lans. 381 ; 43 How. 222 ; Aff'd, 53 N. Y. 
 (8 Sick.) 654. 
 
 417. Whether a person who attempts to cross 
 - 1 railroad track at a highway crossing behind 
 a stationary train, knowing that it may back 
 at any time, is guilty of contributory negligence, 
 which will prevent his recovery for an injury re- 
 ceived in the attempt, is one for the jury. Com. 
 App., 1873, Ealon v. Erie Ry. Co., 51 N. Y. (6 
 Sick.) 544. 
 
 418. So, also, where he attempts to cross when 
 the means employed by him to protect himself 
 from the severity of the weather may have im- 
 paired his ability to perceive the approaching 
 danger. Ct. App., 1874, Salter v. Vtica ^ Black 
 Riv. R. R. Co., 59 N. Y. (14 Sick.) 681. 
 
 419. In an action against a railroad company 
 to recover damages for causing the death of a 
 brakeman in its employ, by negligence in leav- 
 ing a train loose on a downward grade, where 
 the evidence made it more than probable that if 
 he had been at his post his life would not have 
 been endangered -j—Held, that it was error to 
 
 submit to the jury the question whether the in 
 testate was guilty of contributory negligence in 
 being absent from his post, warming himself by 
 a fire ; whether the absence of a caboose did not 
 authorize him to leave his post, on a cold morn- 
 ing ; and whether, the train being on an ascend- 
 ing grade he had not a right to suppose that his 
 services would not be needed. Sup. Ct., 1871, 
 Sprong v. Boston and Albany R. R. Co., 60 Barb. 
 30. 
 
 420. Obstruction of way. Whether gates 
 or bars erected by the owner of lands unreason- 
 ably obstruct a way granted or reserved to 
 another across such lands, or were necessary for 
 the protection of the property _ of such land- 
 owner, is a proper question for a jury and should 
 be submitted to them in an action for such ob- 
 struction. Sup. Ct., 1871, Huson V. Young, 4 
 Lans. 63. 
 
 421. 0£Bcial or private act. Where a 
 bank cashier receipts for money left with him at 
 the bank, for the purchase of government bonds, 
 in his own name, without the addition of the 
 word " cashier," and credits it on the books of 
 the bank to his private' account, and there is 
 evidence to show that the depositor intended 
 dealing with the bank and not with the cashier 
 personally, it should be left to the jury to decide 
 whether the contract was that of tlie bank or of 
 the cashier individually. Sup. Ct., 1869, Cald- 
 well V. National Mohawk Valley Bank, 64 Barb. 
 333. 
 
 422. Ownership. One of the projectors of 
 an oil comp'any, who had agreed to take an 
 amount of its stock, having employed another to 
 sell stock in the company or to procure subscrip- 
 tions therefor, and the evidence being conflicting 
 as to whether or not he had any authority to 
 sell stock belonging to tlie company, — Held in 
 an action by a purchaser against the company 
 to recover his subscription on the ground of 
 fraud, that the question whether the stock sold 
 was that of the company or of such jM-ojector 
 was for the jury. Ct. App., 1871, Kelsey v. 
 Northern Light Oil Co., 45 N. Y. (6 Hand,) 505. 
 
 423. Possession. In an action for assault 
 and battery in forcibly expelling the plaintiff 
 from a dwelling house occupied by both the de- 
 fendant and his son, where the evidence tended 
 to show that the defendant liad control of the 
 house and his son was merely his servant, board- 
 ing with him and working for a salary, the ques- 
 tion in whom was the possession and control was 
 a proper one for the jury, and the refusal to 
 submit it to them is sufficient cause for re- 
 versing the judgment and granting a new trial. 
 Ct. App., 1869, Comstock v. Dodge, 43 How. 97. 
 
 424. Presumption of fact. The presump- 
 tion of the existence of one fact from the exist- 
 ence of another, that is, the process of ascer- 
 taining one fact from the proof of another fact, 
 is within the exclusive province of the jury. 
 Ct. App., 1873, Justice v. Lang, 52 N. Y. (7 
 Sick.) 323 ; S. C, again, 39 N. Y. Supr. (7 J. & 
 Sp.) 283. 
 
 425. In an action upon a memorandum of 
 agreement, signed by the defendants alone, by 
 which they agreed to deliver to plaintiff 1,000 
 rifles at $18 each, cash on delivery, but containing 
 no expression of consideration, nor any positive 
 promise to accept or to pay on delivery, where 
 no such express promise was proved, but there 
 was evidence on the part of the plaintiff tending 
 to show that that was the understanding, and 
 on the part of the defendants that the plaintiff 
 was to send a written order if he accepted the 
 contract ; — Held, that it was a question of fact 
 
PRACTICE. 
 
 593 
 
 for the jury to determine whether there was an 
 agreement by plaintiff to receive and pay for the 
 rifles. lb. 
 
 426. Ratification, ^he question of a prin- 
 cipal's ratification of the unauthorized acts of 
 his agent, by which he is sought to be charged, 
 should be submitted to the jury if the evidence on 
 that subject is conflicting. N. Y. Supr. Ct., 1873, 
 Harnett v. Garvey, 36 N. Y. Supr. (4 J. & Sp.) 326. 
 
 427. Keadiness to perform. In an action 
 for the breach of a written contract for the de- 
 livery of petroleum oil, by which payment and 
 delivery were to be simultaneous and concurrent 
 acts, there being evidence both ways upon the 
 question of the plaintiff's readiness to pay ac- 
 cording to the provisions of the contract, the de- 
 fendants had a riglit to ask its submission to the 
 jury, and the refusal of such request was error. 
 N. Y. Supr. Ct., 1871, Brooklyn Oil Refinery v. 
 Brovtm, 42 How. 286. See S. C., 38 How. 444. 
 
 428. Reasonable use. In an action by the 
 owner of a lower mill against the owner of a flax 
 mill above him on the same creek, for throwing 
 shives into the stream, which formed a bar in 
 plaintiff's dam, — Held, that the question whether 
 this was a reasonable and ordinary use of the wa- 
 ter was a question of fact for the jury. Ct. App., 
 1872, O'Reily v. McChesney, 49 N. Y. (4 Sick.) 672. 
 
 429. Residence. In an action to recover 
 damages for wrongfully assessing the plaintiff 
 for personal property in a town where he does 
 not reside, the question whether he was a resident 
 of such town when the assessment was made 
 is one for the jury. Sup. Ct., 1871, Bailey v. 
 Bueil, 69 Barb. 158. 
 
 430. Representation. Whether a represen- 
 tation as to the value of property sold, is merely 
 an expression of opinion or belief, or an affirma- 
 tion of a fact to be relied upon, is a question for 
 the jury. Ct. App., 1873, tsimar v. Canaday, 53 
 N. Y. (8 Sick.) 298. 
 
 431. Right to sue. Where there is no evi- 
 dence that any person other than the plaintiff is 
 entitled to sue on the contract in suit, as claimed 
 by the defendant, it is error to submit to the jury 
 the question of the plaintiff's right to maintain 
 an action thereon. Sup. Ct., 1874, Lakey v. Loo- 
 mis, 2 Hun, 616. 
 
 432. Sea-worthiness. Whether the vessel 
 insured was seaworthy at the inception of the 
 voyage, is ordinarily one of fact for the jury; 
 but if she founders, without stress of weather or 
 other adequate cause, soon after leaving port, 
 the presumption is that the inability existed be- 
 fore setting sail, and arose from some latent de- 
 fect, which rendered her unseaworthy. N. Y. 
 Supr. Ct., 1874, Sturm v. Atlantic Mut. Ins. Co., 
 88 N. Y. Supr. (6 J. & Sp.) 282. 
 
 438. Sufficiency of evidence. The ques- 
 tion whether there is any evidence is for the 
 court ; but whether there is sufficient evidence 
 is for the jury. Sup. Ct., 1876, Sherwood v. Mer- 
 cantile Mut. Ins. Co., 5 Hun, 115. S. P., Boos v. 
 World Mut. Life Ins. Co., 4 Hun, 133. 
 
 434. Undue influence. Where the defense of 
 fraudulent representations and undue influence 
 is set up to an action on a note, and there is 
 evidence tending to show that the payee, who was 
 an attorney, induced the making and indorse- 
 ment of the note by threatening to prosecute 
 criminally and send to State prison the husband 
 of the maker and son-in-law of the indorser, 
 whom he had arrested for a conversion of stock, 
 the question of undue influence should be sub- 
 mitted to the jury. Sup. Ct., 1873, Ingersoll v. 
 iJoeji66Barb. 346. 
 
 485. Usury. When usury is set up as a de- 
 
 fense to an action on a promissory note, the in- 
 tent of the parties is a question of fact for the 
 jury, and their finding against the defendant is 
 conclusive, unless some error was committed by 
 the judge upon the trial. Sup. Ct., 1871, Horton 
 V. Moot, 60 Barb. 27. 
 
 436. Waiver. Where there is a conflict of 
 evidence as to the facts on which a waiver of a 
 condition precedent in a policy of insurance is 
 claimed, the question should be submitted to the 
 jury. Com. App., 1874, Underwood v. Farmers 
 Joint Stock Ins. Co., 48 How. 367 ; S. C, 57 N. 
 Y. (12 Sick.) 500. 
 
 437. In an action upon a life insurance policy, 
 where there is levidence that a person employed 
 by the company and usually sent out to collect 
 premiums, was accustomed to sign receipts, and 
 was permitted to act sometimes in the place of 
 officers who had power to waive forfeitures, re- 
 ceived a premium after forfeiture of the policy 
 and gave a receipt therefor at the office of the 
 company, the question whether he was authorized 
 by the company to waive the forfeiture should 
 he submitted to the jury. Sup. Ct. 1871, Kolgers 
 v. Guardian Life Ins. Co., 10 Abb. N. S. 176 ; S. 
 C, 9 Abb. N. S. 91. 
 
 438. Whether a defendant has by his acts 
 waived a condition annexed to the promise upon 
 which he is sued, is a question of fact to be de- 
 duced from the whole evidence in the case, and 
 the defendant has a right to have it submitted 
 to the jury, upon his request. N. Y. Supr. Ct., 
 
 1871, Scroffv. Bauer, 42 How. 348 ; S. C, 33 N. 
 Y. Supr. (IJ. & Sp.) 199. 
 
 439. VTarranty. In an action upon a war- 
 ranty made on a sale of property, where the con- 
 versation alleged to contain the warranty, is 
 given in evidence, the interpretation" of the con- 
 versation and what particular warranty was in- 
 tended, is a question for the jury. Sup. Ct., 
 
 1872, Day v. Pool, 63 Barb. 606. S. P., N. Y. C. 
 P., 1872, Mitrray v. Smith, 4 Daly, 277. 
 
 440. Waste. The question whether or not 
 alterations made by a tenant are such an injury 
 to the premises as would constitute waste, under 
 a lease giving him the right to make any altera- 
 tions he might think proper provided they were 
 not injurious, is one for the jury. Ct. App., 1874, 
 Agate v. Lowenbeim, 57 N. Y. (12 Sick.) 604; 
 Rev'g S. C, 4 Daly, 262. 
 
 441. Wife, liability of. In an action upon 
 a promissory note in the ordinary form executed 
 by a husband and his wife, where there is evi- 
 dence tending to show that it was given for the 
 purchase-money of property bought for the 
 wife, the question of her liability should be sub- 
 mitted to the jury. Ct. App., 1873, Frecking v. 
 Rotland, 63 N. Y. (8 Sick.) 422: Rev'g S. C, 33 
 N. Y. Supr. (1 J. & Sp.) 499. 
 
 442. Wilful act In an action against a rail- 
 road company for injuries received in conse- 
 quence of a removal from its cars by a conduc- 
 tor, pursuant to its instructions, for refusing to 
 pay the fare demanded, the question whether 
 the force used was in pursuance of his duty as 
 conductor, or was wilful and malicious on his 
 part, is for the jury. Ct. App., 1872, Jackson v. 
 Second Ave. R. R. Co., 47 N. Y. (2 Sick.) 274. 
 
 448. Summing up to jury. In an action 
 upon an insurance policy, the plaintiff's counsel 
 cannot properly be permitted to read from a 
 pamphlet proved to have been issued by the in- 
 surance company, and state its contents to the 
 jury when summing up the case to them, if the 
 same has not been received in evidence. Com. 
 App., 1874, Koelges v. Guardian Life Ins. Co., 67 
 N. Y. (12 Sick.) 638. 
 
594 
 
 PRACTICE. 
 
 444. Where, in an action upon a complaint 
 containing two counts for fraud, the complaint 
 was on the trial, on motion of the defendant, 
 dismissed as to one count, for want of proof, de- 
 fendant giving no evidence thereon, — Held, that 
 it was error to permit the plaintiff's counsel, in 
 summing up, to use, or the jury to consider, the 
 evidence given in support of such count, upon 
 the question of fraud in the cotemporaneous 
 transaction set forth in the other count. If 
 there was no evidence of fraud sufficient to 
 carry the case to the jury on the first count, 
 there was none for any purpose. Com. App., 
 1873, Meyer v. Cullen, 54 N. Y. (9 Sick.) 392. 
 
 445. At any rate, the defendant in such case 
 should be permitted, even on the summing up, 
 to introduce evidence showing that there was no 
 fraud in the transaction as to which the com- 
 plaint was dismissed ; and the discretion of the 
 court in such matters is a judicial one, which 
 may be reviewed on appeal. lb. 
 
 446. Amendment at trial. A motion for 
 leave to amend an answer so as to set up a new 
 and separate defense, and to raise an entirely 
 new issue, the granting of which would operate 
 as a surprise upon the plaintiffs, should never 
 be allowed on the trial. N. Y. Supr. Ct., 
 1872, Johnson v. Oppenheim, 43 How. 433 ; S. C, 
 12 Abb. N. S. 449 ; 34 N. Y. Supr. (2 J. & Sp.) 
 416. 
 
 447. A plaintiff in an action on a judgment 
 recovered by a former firm of which he was a 
 member, upon discovering, after the commence- 
 ment of his action, that one of the defendants 
 had been released by a former partner of his 
 own, and the release entered in the county 
 clerk's office, may, on motion, be allowed to 
 amend his complaint so as to allege that such 
 release was given fraudulently and without au- 
 thority and by collusion, and ask to have it 
 declared null and void ; but he cannot, on mo- 
 tion, have an order cancelling the entry of re- 
 lease. Sup. Ct., 1874, Eomain v. Garth, 3 Hun, 
 214. 
 
 448. A plaintiff, having declared upon contract, 
 cannot upon the trial substitute for the cause of 
 action set out in the complaint one founded 
 upon an account stated, and base a recovery 
 upon the latter cause, thereby excluding evi- 
 dence of a defense for the reason that the an- 
 swer did not set up affirmatively some error or 
 fraud in the statement of the account. Ct. 
 App., 1872, Greenfield v. Massachusetts Mut. Life 
 Ins. Co., 47 N. Y. (2 Sick.) 430. 
 
 449. A complaint in which the plaintiff ex- 
 pressly waives an alleged tort and seeks to re- 
 cover upon an implied contract for property sold, 
 may be amended after judgment to conform to 
 the proofs, if there is any question as to the 
 right to waive the tort. Sup. Ct., 1871, Brown 
 T. Hall, 5 Lans. 177. 
 
 450. After judgment, a variance between the 
 complaint and the proof is immaterial ; and the 
 complaint may be amended on appeal to con- 
 form it to the evidence. Sup. Ct., 1872, Smith 
 V. Holland, 61 Barb. 333. 
 
 451. Counsel who has charge of the trial of 
 a case has authority to make any motion which 
 may appear to him necessary at the trial, to sign 
 any stipulation or to do any other act in the name 
 of the attorney of record which in his judgment 
 will benefit his client. He may, therefore, pro- 
 cure an amendment of the pleadings without 
 the knowledge of such attorney of record. N. 
 Y. Sup. Ct. Sp. T., 1873, Devlin v. Mayor, etc. of 
 New York, 15 Abb. N. S. 31. 
 
 452. CIiEirge to jury. It is not error to re- 
 
 fuse to repeat in other terms a proposition which 
 has been already once clearly given to the jury. 
 Sup. Ct., 1874, People exrel. Stemmler v. McGuire, 
 2 Hun, 268 ; Aff'd, S. C, 60 N. Y. (15 Sick.) 640. 
 Or which has been once substantially given. 
 Sup. Ct., 1872, Bennett v. Matthews, 64 Barb. 410. 
 S. P., Osborn v. Ganiz, 88 N. Y.,Supr. (6 J. & 
 Sp.) 148; Aff'd, 60 N. Y. (15 Sick.) 540; Allen 
 V. Stout, 51 N. Y. (6 Sick.) 668. 
 
 453. Unless all of several propositions embraced 
 in one request to charge are material to the 
 issue, and true in fact and in law, the court may 
 properly refuse to comply with such request. 
 Com. App., 1872, Palmer v. Holland, 51 N. Y. 
 (6 Sick.) 416. S. P., Hodges v. Cooper, 43 N. Y. 
 (4 Hand,) 216. 
 
 454. Requests to charge the jury should be 
 presented to the court in the hearing of the op- 
 posing counsel, and before the jury are leaving 
 the box. If not presented until after the jury 
 have been charged and have commenced leav- 
 ing the box the judge may properly refuse to 
 receive them or to recall the jury for the pur- 
 pose of giving them. N. Y. Supr. Ct., 1872, 
 Tinkham v. Thomas, 34 N. Y. Supr. (2 J. & Sp.) 
 236. 
 
 455. There is no error in refusing an instruc- 
 tion to the effect that if the jury believe certain 
 witnesses they must find for the party for whom 
 they testified. The proper form of request 
 would be to state hypothetioally the facts upon 
 which it is based, and leave them to the jury to 
 decide upon the evidence. Ct. App., 1874, 
 Chapman v. Erie Railway Co., 55 N. Y. (10 Sick.) 
 679. 
 
 456. In an action for fraud on the sale of a 
 vessel, it is not error to refuse requests to 
 charge on the part of the plaintiff, basing the 
 liability of the defendants on the falsity of the 
 representations made, without reference to the 
 knowledge of the person making them of their 
 falsity, or the reliance placed on them by the 
 plaintiffs. Ct. App., 1871, Atkins v. Elwell, 45 
 N. Y. (6 Hand,) 753. 
 
 457. Abstract propositions. After the 
 court has properly instructed the jury upon 
 every question material to the disposition of the 
 case, it is not bound to submit abstract proposi- 
 tions of law for their consideration, or mere 
 amplifications of its previous instructions, but 
 may properly decline to entertain any applica- 
 tion to give further instructions. Com. App., 
 1873, Moody v. Osgood, 54 N. Y. (9 Sick.) 488 ; 
 Aff'gS. C.,60Barb. 644. 
 
 458. Assuming facts. In an action against 
 the owners of a pier for personal injuries, re- 
 sulting in death, caused by the breaking down 
 of the pier some fourteen months after the 
 same had been leased and the lessees put in 
 possession, they agreeing to keep it in repair, it 
 was error for the court to assume in the absence 
 of evidence as to the condition of the timber at 
 the time of giving the lease, that the timbers 
 could not have become rotten in the short time 
 intervening between the making of the lease and 
 the happening of the accident, and charge that 
 the owners were liable if the pier was out of 
 repair at the date of the lease. Sup. Ct., 1872, 
 Swords V. Edgar, 44 How. 139. 
 
 459. In such case, where the undisputed evi- 
 dence showed that the lessees were in posses- 
 sion of the pier at the date of the lease, and 
 from thence until it fell, and the only evidence 
 to support a contrary view was that the lefise 
 was not executed until some months after its 
 date, and that the agent of the owners entered 
 and made repairs upon the pier a few months 
 
PRACTICE. 
 
 595 
 
 after it broke down, it was'error for the court to 
 submit to the jury the question whether the 
 owners were in possession at the time of the 
 accident. lb. 
 
 460. Ezpi'esslon of opinion. A remark 
 made by a judge to a jury who came into 
 court for instructions, to the effect that he 
 thought there was not much difficulty in arriv- 
 ing at a conclusion, — Held not to express an 
 opinion or to intimate what his opinion was in 
 the case, and therefore to be no error. Ct. App., 
 1872, Caldwell v. New Jersey Steamboat Co., 47 
 N. Y. (2 Sick.) 282. 
 
 461. A further remark that if they did not 
 agree he should feel it to be his duty to keep 
 them together until Monday, it being then 
 Thursday, — Held discretionary, and not review- 
 able on appeal. lb. 
 
 462. Where a plaintiff has been sworn in his 
 own behalf, and two witnesses called to impeach 
 him have sworn that his general character is 
 bad, it is error for the court to remark in its 
 charge that " The impeachment, or attempted 
 impeachment of the plaintiff has entirely failed ; 
 it has not affected his credit," since such testi- 
 mony, though weak, is competent and should be 
 submitted to the jury ; and such remark is in 
 effect an instruction, and an exception will lie 
 thereto without a request to submit the question 
 to the jury. Ct. App., 1874, Allis v. Leonard, 
 58 N. Y. (13 Sick.) 288. 
 
 468. Reference to testimony on one side 
 only. If the court in its charge to the jury 
 considers and refers to the testimony on one 
 side only, the counsel for the other side should 
 request a charge upon the remaining testimony, 
 and if he fails to do so his exception to the 
 charge will not avail him. Sup. Ct., 1873, 
 Magoverning v. Staples, 7 Lans. 145. 
 
 464. As to certainty. It is not necessary 
 that the jury should satisfy their minds to a 
 moral certainty that thg facts are as claimed by 
 a party, to justify their giving a verdict for him, 
 but they may properly be charged that if they 
 believe the transaction to be as detailed by his 
 witnesses, they should decide in his favor. 
 Com. App., 1874, Johnston v. Bush, 67 N. Y. (12 
 Sick.) 633. 
 
 465. As to disregarding evidence. Al- 
 though incompetent evidence is received with- 
 out objection, the party against whom it is 
 introduced is entitled, upon request, to a charge 
 from the court instructing the jury to disregard 
 it. Com. App., 1872, Hamilton v. New York 
 Central R. R. Co., 51 N. Y. (6 Sick.) 101. 
 
 466 As to fraud. A charge " that when a 
 sale and purchase are made with intent to de- 
 fraud creditors, the whole transaction is void, 
 provided that intention existed on the part of 
 the purchaser as well as of the vendor," is cor- 
 rect as far as it goes, and an exception to the 
 proviso alone is not well taken. N. Y. Supr. 
 Ct., 1873, Starin v. Kdly, 36 N. Y. Supr. (4 J. & 
 Sp.) 366. 
 
 467. Implied agreement. In a case where 
 the defendant pleaded an express agreement and 
 gave testimony to sustain the plea, the jury can- 
 not properly find an implied agreement to the 
 same efiect, and it is error to instruct them that 
 they may. Sup. Ct., 1875, Starr v. Winegar, 
 8 Hun, 491. 
 
 468. In an action for medical services, where 
 the complaint charged for services generally, but 
 the bill of particulars served noted the charges 
 as " per agreement," — Held, that, although the 
 plaintiff was not precluded from showing and 
 recovering the value of his services, in case he 
 
 should fail to prove the contract, yet, no evi- 
 dence of the value havingbeen given on the trial, 
 it was error to submit that question to the jury 
 independentlv of the contract. Ct. App., 1871, 
 Robinson v. yVeil, 45 N. Y. (6 Hand,) 810. 
 
 469. In an action for commissions earned in 
 selling real estate, where the complaint is in the 
 form of a quantum meruit, but the proof shows 
 that the amount claimed was the agreed price, 
 and there is no other evidence as to the value of 
 the services, an instruction to the jury that 
 they cannot find a verdict for less than the full 
 amount claimed is proper. Sup. Ct., 1874, Lud- 
 low v. Dole, 1 Hun, 716; Aff'd by Ct. App. 
 
 470. Misleading jury. In an action against 
 a railroad company for injuries caused by a col- 
 lision at a street crossing, where the complaint 
 charged its omission to keep a flagman at the 
 crossing as one act of negligence, an interroga- 
 tory put by the court in its charge to the jury, 
 " Is it true that he looked in both directions 
 and there being no flagman and he hearing 
 nothing," &c., — Held, calculated to mislead the 
 jury to suppose that the absence of a flagman 
 was culpable negligence, relieving the plaintiff 
 from the necessity of care on his part, and it 
 was therefore error to refuse an instruction 
 asked by defendant, that the defendant was not 
 required to give any actual notice to plaintiff or 
 his servant of the approach of the engine beyond 
 the ringing of the bell. That would not, under 
 the circumstances, be irrelevant or a mere 
 abstract proposition. Ct. App., 1876, Culhane v. 
 N. Y. Cent. ^ Hud. Riv. R R. Co., 60 N. Y. (15 
 Sick.) 133. 
 
 471. Where, in an action against a railroad 
 company for an injury to a passenger, caused 
 proximately by the breaking of a rail, there is 
 evidence to show that the real cause was a de- 
 fective cross-tie, ^n instruction tending to with- 
 draw the attention of the jury from such real 
 cause, as that, " if the tracks and rails of the 
 defendant were sound immediately prior to the 
 accident, and there was no defect in the rail 
 which could have been discovered," &c., the de- 
 fendant was not liable, — would be erroneous. 
 N. Y. C P., 1871, BrignoU v. Chi. ^ Great East- 
 ern Ry. Co., 4 Daly, 182. 
 
 472. Where the question of estoppel, upon the 
 assertion by a bank teller of the genuineness of 
 a forged certification of a check, rested upon the 
 issue whether or not a loss had resulted to the 
 party presenting it, by a neglect of means in 
 his power to stop payment upon gold checks 
 already delivered thereon ;-^Held, that a charge 
 to the effect that a delivery of the gold checks 
 was not a delivery of the gold, though tech- 
 nically inaccurate, did not tend to mislead, and 
 for the purposes for which it was uttered, was 
 correct. Ct. App., 1872, Continental Nat. Bank 
 V. Bank of the Commonwealth, 60 N. Y. (5 Sick.) 
 575. 
 
 473. Submission vrithout evidence. It 
 is error for a judge to submit a question to the 
 jury, where there is no evidence to authorize 
 any finding thereon ; and it is, for a similar 
 reason, correct to refuse to submit a question 
 unsupported by evidence. Com. App., 1873, 
 Algur V. Gardner, 54 N. Y. (9 Sick.) 360. 
 
 474. The submission to the jury of a question 
 as to the waiver of a forfeiture, without any evi- 
 dence of such waiver, is error. Ct. App., 1874, 
 Palmer v. Kelly, 56 N. Y. (11 Sick.) 637. 
 
 475. 'Whole to be considered. In an action 
 for an injury received by a passenger while 
 getting on at the front platform of a street car, 
 where there is evidence that the car was at rest 
 
596 
 
 PRACTICE. 
 
 or on the point of rest, and that the driver 
 invited him to get on, and the court has 
 charged the jury that they should find for the 
 defendant unless the proof showed that the 
 car was stopped or being stopped, a further 
 charge that the front platform is a place of 
 danger, and that getting upon or attempting 
 to get upon it is prima facie evidence of negli- 
 gence on the part of the passenger, " unless 
 the jury believe he was invited on by a ser- 
 vant of the company," must be considered in 
 connection with the former part of the charge, 
 and the qualification as applying only to the 
 case of a passenger getting on while the oar was 
 at rest or on the point of resting. N. Y. Supr. 
 Ct., 1875, Maker v. Central Park, N. i- E. R. R. 
 R. Co., 39 N. Y. Supr. (7 J. & Sp.) 166. 
 
 476. Error, ■when cured. An erroneous 
 statement of a general principle of law, in a 
 judge's charge to the jury, is cured by a subse- 
 quent correct statement of the law as applied to 
 the particular circumstances of the case. Ct. 
 App., 1874, Crist v. Erie Railway Company, 58 N. 
 Y. (13 Sick.) 638. 
 
 477. An error in a charge is not cured by a 
 retraction of the point objected to, when accom- 
 panied by a remark of the judge that he "had 
 no doubt"- of its propriety. Ct. App., 1871, 
 Meyer v. Clark, 45 N. Y. (6 Hand,) 285 ; Eev'g 
 S. C., 2 Daly, 497. But it must be withdrawn in 
 explicit terms. Ct. App., 1874, Chapman v. Erie 
 Ry. Co., 55 N. Y. {10 Sick.) 579. 
 
 478. In' an action by the assignee of a mill- 
 dam owner, against the owner of an upper dam, 
 for damages resulting from the breaking of such 
 upper dam, both to the lower dam and an inter- 
 mediate one of which plaintiff was the owner, — 
 Held, that an erroneous charge to the effect that 
 the plaintiff could not recover for the injury to 
 such lower dam, if the water from his own inter- 
 mediate dam contributed thereto, was not cured 
 by a general verdict for the defendant. Ct. App., 
 1874, Pollett V. Long, 56 N. Y. (11 Sick.) 200. 
 
 479. Directing verdict. As an ordinary 
 rul^, the court In which an action is pending 
 may, upon an undisputed state of facts, render 
 the judgment which the law requires without 
 the aid or advice of a jury ; and a request to 
 direct a verdict for the defendant is, in substance 
 and effect, the same thing as a motion for a non- 
 suit. Com. App., 1873, Appleby v. Astor Fire 
 Ins. Co., 64 N. Y. (9 Sick.) 253. 
 
 480. Where, in an action for the conversion of 
 a quantity of logs, both parties failed to show 
 title to the land from which they were taken, 
 defendant being in possession, — Held, that a 
 judgment of nonsuit should have been entered, 
 instead of a verdict directed for the defendant. 
 Ct. App., 1874, Johnson v. Elwood, 56 N. Y. (11 
 Sick.) 614. 
 
 481. It is the duty of a judge to direct a ver- 
 dict for plaintiff or defendant, only when the 
 evidence in favor of such party is so clear and 
 undisputed, that a verdict in conflict therewith 
 could not be sustained, and he would feel it his 
 duty to set it aside. Sup. Ct., 1874, Wombough 
 V. Cooper, 2 Hull, 428. S. P., Fish v. Davis, 62 
 Barb. 122 ; Sheruioodr. Mercantile Mut. Ins. Co., 
 5 Hun, 115. 
 
 482. In all cases where it would be the duty 
 of the court to set aside a verdict against a 
 party, as contrary to the weight of evidence, it 
 is authorized, notwithstanding some slight con- 
 flict in the evidence, to direct a verdict in such 
 
 arty's favor. Com. App., 1871, Corning v. Troy 
 'ron and Nail Factory, 44 N. Y. (5 Hand,) 577. 
 
 483. It is error to take a case from the jury 
 
 ?i 
 
 and direct a verdict for one party, where there 
 is evidence sufficient to authorize them to find 
 for the other. N. Y. Supr. Ct., 1870, Schanck v. 
 Morris, 2 Sweeny, 464. 
 
 484. In an action to charge a person as trus- 
 tee of a manufacturing corporation with its 
 debt, on account of the failure of the trustees to 
 file an annual report, where it appeared from his 
 own testimony that he continued to act as trus- 
 tee after the time for filing the report and after 
 the expiration of his term, no successor having 
 been elected, — Held, that the court properly 
 refused to submit to the jury the question wheth- 
 er he was at the time for. filing the report act- 
 ing as a trustee, and directed a verdict for 
 the plaintiff. Ct. App., 1874, Sanborn v. Lefferts, 
 58 N. Y. (13 Sick.) 179. 
 
 485. It is not error of law for a court to 
 refuse^ to direct a verdict or to nonsuit, where 
 although the evidence be uncontradicted, con- 
 flicting inferences may be drawn from it, or con- 
 flicting constructions may fairly be given to 
 the language employed. To make a question 
 one of law, the facts and not simply the evidence 
 must be undisputed. Ct. App., 1874, Smith v. 
 Coe, 55 N. Y. (10 Sick.) 678. 
 
 486. It is not error for the court to direct a 
 verdict for the plaintiff in an action upon a pro- 
 missory note, where the plaintiff is shown to be 
 a bona fide holder before maturity, although 
 the note is proved to have been issued by one 
 partner in the name of his firm, for a purpose 
 not authorized by the partnership. Ct. App., 
 1867, Benedict v. DeGroot, 45 How. 384. 
 
 487. Upon denying a motion to dismiss a com- 
 plaint, because based upon untenable ground, if 
 there is no other ground for it which is not 
 capable of being obviated, and no other motion 
 or request is made, and no evidence is given on 
 the part of the defense, the court cannot do 
 otherwise than direct a verdict for the plaintiff. 
 N. Y. Supr. Ct,, 1875, Raynor r. Hoagland. 39 
 N. Y. Supr. (7 J. & Sp.) 11. 
 
 488. A judge holding a circuit has power 
 to direct a verdict subject to the opinion of the 
 court at the General Term, and also has power 
 to instruct the jury to find upon specific ques- 
 tions of fact ; but it is error for him to so 
 direct a verdict as long as there are disputed 
 questions of fact, and therefore, both instructions 
 cannot properly, be given in the same action. 
 Sup. Ct., 1862, Wilcox V. Hoch, 62 Barb. 509. 
 
 489. A court cannot take the assessment of 
 damages from the jury, or suspend judgment 
 and order the exceptions to be heard in the first 
 instance at General Term, except upon an un- 
 controverted state of facts. N. Y. C. P., 1871, Fey 
 V. Smith, 3 Daly, 386. 
 
 490. A case should not be taken from the 
 jury and judgment directed, upon the defend- 
 ant's answer, as being an admission of the plain- 
 tiff's case, where the proofs presented by the 
 latter contradict such answer. lb. 
 
 491. Reserving for consideration. Under 
 sec. 264, of the Code, the justice presiding at a 
 circuit has power, in all eases of trial by jury, 
 to reserve the case for further consideration upon 
 the questions of law involved ; and the circum- 
 stance that the verdict is directed by him, does 
 not take the case out of this provision of the 
 statute. Ct. App., 1878, SheUinqton v. Howland, 
 53 N. Y. (8 Sick.) 371. 
 
 492. Exceptions must be to conclusions of 
 law only. The Code, sees. 268, 272, does not au- 
 thorize or contemplate exceptions to findings of 
 facts. Sup. Ct., 1873, Garfield v. Kirk, 65 Barb. 
 464. 
 
PRACTICE. 
 
 597 
 
 493. Exceptions to charge. A general 
 exception to a charge which is not altogether 
 erroneous, will not avail on appeal, especially 
 where, if the attention of the court had been 
 called to the error, it might hare been corrected 
 at the trial. Sup. Ct., 1870, Smith v. McNamara, 
 4 Lans. 169. 
 
 494. A mere general exception to the charge 
 of the court relating to the impeachment of a 
 witness, will not be sustained if some portions of 
 the charge relating thereto are correct. The 
 counsel should in such a case call the attention 
 of the court specifically to that part of the charge 
 to which he objects at the time it is given, and 
 if not then corrected, except to it specially. 
 Com. App., 1874, White v. McLean,i1 How. 193; 
 S. C, 57 N. Y. (12 Sick.) 670. 
 
 495. Exceptions to a charge, whether general 
 or special, relate only to questions submitted to 
 the jury ; and where aU the instructions given 
 relative to questions so submitted are erroneous, 
 a general exception is sufficient, even though 
 the charge contained other propositions which 
 were correct. Com. App., 1874, Schenck v. An- 
 drews, 57 N. Y. (12 Sick.) 133. 
 
 496. A general exception to a charge " so far as 
 the judge had not charged as requested " in sev- 
 eral propositions previously prepared and hand- 
 ed to him, will be unavailing. Ct. App., 1871, 
 Eequa v. City of Rochester, 45 N. Y. (6 Hand,) 129. 
 
 497. So also, will be an exception " to each 
 and every proposition in the second charge of 
 the court to the jury," where such charge is 
 lengthy and embraces several propositions. lb. 
 
 498. Exception to refusal to charge. If, 
 upon the refusal of the court to charge several 
 propositions presented by a party as a whole, 
 except so far as noticed in the general charge, 
 he merely takes a general exception to such re- 
 fusal, it will not avail him if any one of such 
 
 S repositions is unsound. N. Y. Supr. Ct., 1873, 
 fyers V. Dixon, 45 How. 48 ; S. C, 35 N. Y. 
 Supr. (3 J. & Sp.) 390. S. P. WiUetts v. Sun 
 Mutual Ins. Co., 45 N. Y, (6 Hand,) 45. 
 
 499. Exception to directing verdict. An 
 exception taken by defendant to the direction 
 of a verdict in favor of the plaintiff, upon the 
 evidence exclusively,, and not upon any ques- 
 tion of law, after a motion for a nonsuit had 
 been overruled, involves an objection to the de- 
 cision of the judge in taldng the case from the 
 jury on the evidence and is available on a mo- 
 tion for a new trial, although he made no re- 
 
 • quest that it be submitted to the jury. Sup. 
 Ct., 1874, Wombough v. Cooper, 2 Hun, 428. 
 
 600. Exception to ruling. Where the court 
 in an action for negligence, erroneously rules 
 against the defendant as to the burden of proof, 
 he has a right to rely upon an exception to such 
 ruling and decline to introduce further evidence, 
 although, as the case stands, the evidence is 
 sufficient to warrant a verdict against him upon 
 that question. Ct. App., 1872, Cochran v. Dins- 
 mare, 49 N, Y. (4 Sick.) 249. 
 
 501. A general exception to the ruling of the 
 court, that there is no question to be submitted 
 to the jury, will not avail a party on appeal. If 
 he wishes any question submitted, lie should 
 call the attention of the court to it. Ct. App., 
 1870, O'Neill v. James, 48 N. Y. (4 Hand,) 84. 
 
 502. Where there is sufficient evidence to 
 justify the adihiBsiou of a deposition taken de 
 bene esse, an exception that it was not sufficiently 
 proven that the witness was unable to attend is 
 not sufficient to raise the question of the cbm- 
 peteriey of the evidence. Com. App.; 1874, John- 
 ston V. Bush, 57 N. Y. {12 Sick.) 633. 
 
 503. A party wishing to take advantage of 
 that provision of a statute which requires the 
 court to cause other parties to be brought in, 
 when their presence is necessary to a complete 
 determination of the controversy, should call 
 the attention of the court to it specially ; and 
 wliere, instead, he simply moves a dismissal of 
 the complaint for want of necessary parties, and 
 upon denial of the motion, excepts generally, 
 he cannot on appeal allege the want of parties 
 as error. Com. App., 1872, Potter v. Eltice, 48 
 N. Y. (3 Sick.) 321. 
 
 504. It is not good practice to name in a mo- 
 tion administrators personally as proper parties, 
 and except because they as administrators are 
 not made parties. lb. 
 
 505. Jury taking papers. It is not proper 
 for a jury to take with them when retiring mem- 
 oranda of counsel as to evidence, or any writ- 
 ings, save such as have been put in evidence ; 
 and if they are allowed to do so, that is sufficient 
 cause for reversing the judgment. But where 
 they are allowed to take memoranda of testi- 
 mony taken by both parties, a party objecting 
 should limit his objection and exception to his 
 opponent's memorandum, otherwise it will not 
 avail him. N. Y. Supr. Ct., 1874, Sewitt y. 
 Morris, 37 N. S. Supr. (5 J. & Sp.) 18. 
 
 506. Exceptions, hearing at the general 
 ternL Whether exceptions taken in a cause 
 tried at circuit shall be heard first at the General 
 Term, or at a Special Term, rests exclusively in 
 the discretion of the judge holding the circuit. 
 Sup. Ct., 1870, Beattie v. Niagara Savings Bank, 
 41 How, 137. 
 
 507. No appeal would lie from an order send- 
 ing them to be heard at the General Term ; nor 
 can such order be vacated upon motion at a sub- 
 sequent Special Term, even though the General 
 Term, after argument, finding itself unable to 
 grant the defendant relief, and that it could only 
 be done by the Special Term, has not decided 
 the case, but holds it still under advisement. lb. 
 
 508. An order sending exceptions to be heard 
 first at the General Term ought not to be made, 
 unless in cases of the highest importance or of 
 absolute necessity. lb. 
 
 509. An order made by a judge on trial, send- 
 ing the exceptions to be first heard at General 
 Term, does not remove the cause beyond the 
 authority of the court ; but such order is sub- 
 ject to review at Special Term, and it may be 
 vacated, and the losing party allowed to move 
 there, upon a case, for a new trial. Com. App., 
 1873, Post V. Hathorn, 54 N. Y. (9 Sick.) 147. 
 
 510. The language of the latter part of sec. 
 265, of the Code, providing that when such an 
 order is made, tlie case must be heard in the 
 first instance at General Term and judgment 
 there given, simply gives the rule governing 
 while the order remains in force, but does not 
 prevent the court from modifying or vacating 
 such order. lb. 
 
 511. On the hearing at General Term upon 
 exceptions taken at the circuit, the court can- 
 not pass upon the constitutionality of a law, 
 when the point was not taken in the answer 
 nor at the circuit ; or upon any other ques- 
 tion, except such as arises upon exceptions duly 
 taken to some decision made by the circuit 
 judge at the trial, or in the final disposition of 
 the case. Sup. Ct., 1875, Emmons v. Wheeler, 8 
 Hun, 545. 
 
 512. A party who omits to ask that a question 
 of fact, as to which there is conflicting evidence, 
 be submitted to the jury, cannot raise the objec- 
 tion on the hearing of exceptions at the General 
 
598 
 
 PRACTICE. 
 
 Term, that it ought to have been so submitted. 
 N Y Supr. Ct., 1872, McGuire v. Sinclair, 47 
 How. 360: S. C, 35 N. Y. Supr. (3 J. &Sp.) 561. 
 
 513. HoTW revievB-ed. The Code has pro- 
 vided for three different modes of reviewing ex- 
 ceptions taken, viz : by an appeal from the judg- 
 ment, by a motion for a new trial upon them at 
 the General Term, under an order that they be 
 heard in the first instance at the General Term, 
 and by a motion for a new trial at the circuit or 
 Special Term. In the latter case an application 
 may also at the same time be made for a new 
 trial, because of the misdirection of the court, 
 or for the reason that the verdict is without evi- 
 dence or against evidence. Sup. Ct., 1874, Price 
 V. Keyes, 1 Hun, 177. 
 
 514. The Special Term cannot entertain and 
 dispose of a motion for a new trial, while an 
 order continues in force sending the exceptions 
 in the first instance to the General Term. lb. 
 
 515. In a case where such an order has been 
 made, the remedy of the party is to bring on 
 the motion for a new trial before the General 
 Term, and that must be heard only upon the 
 exceptions taken during the trial. lb. 
 
 3. T%e verdict. 
 
 516. Increasing verdict. Until a jury have 
 been dismissed, their power over their verdict 
 remains. Where, therefore, a jury being au- 
 thorized to bring in a sealed verdict, did so, and 
 then separated, but on being polled on the fol- 
 lowing morning after entry of such verdict in 
 the clerk's minutes disagreed, and thereupon by 
 direction of the court retired, and afterward 
 brought in a verdict for an increased amount. 
 Held, no error. Ct. App., 1873, Warner v. 
 New York Cent. R. R. Co., 52 N. Y. (7 Sick.) 437. 
 
 517. Construction. In an action for dam- 
 ages and to restrain alleged wrongful acts of the 
 defendant, where all the issues were ordered 
 tried by a jury, a general verdict was rendered 
 of a certain sum as damages, — Held, that this 
 was necessarily a finding that the defendant 
 had committed some or all of the acts charged, 
 presumptively all, and that they produced the 
 injurious results charged; that, therefore, the 
 verdict authorized a judgment restraining such 
 acts. Ct. App., 1874, Parker v. Laney, 58 N. Y. 
 (13 Sick.) 469. 
 
 518. — special. It is only where the jury 
 render a general verdict, in an action for the re- 
 covery of specific, real or personal property, 
 that they can regularly, under sec. 261 of the 
 Code, be called on to answer specific questions 
 of fact ; yet, it is not a mistrial where such 
 questions are submitted to and found by the 
 jury by consent of parties, and the trial is in all 
 other respects by the court. Ct. App., 1873, 
 Carr v. Carr, 52 N. Y. (7 Sick.) 251 : AS'g S. C, 
 4Lans. 314. . 
 
 519. Such a verdict is not a special verdict ; 
 but on appeal it will he assumed that the court 
 below found every material fact necessary to 
 sustain the judgment, as to which there was 
 evidence tending to establish it, and reasonably 
 justifying the finding. lb. 
 
 520. Where, in a case triable by the court, an 
 order is made directing all the issues to be tried 
 by a jury, the verdict must determine all the 
 material issues of fact, so to enable the court to 
 give judgment upon the entire case and as to all 
 the relief demanded : if it does not, it is defec- 
 tive and should be set aside. While the order 
 remains in force the trial judge has no authority 
 to find additional facts, upon which, together 
 
 with the verdict, to render judgment. Ct. App., 
 1874, Parker v. Laney, 58 N. Y. (13 Sick.) 469. 
 
 521. Where a special verdict is found in favor 
 of the plaintiff, he is bound to move for judg- 
 ment thereon at the Special Term. The court 
 cannot send that motion to be heard, with the 
 exceptions, in the first instance at the General 
 Term. Sup. Ct., 1862, Griswold v. Dexter, 62 
 Barb. 648. 
 
 522. A special verdict, being a mere finding 
 of facts, is not a verdict against either party to 
 which a motion for a new trial would be appli- 
 cable, lb. 
 
 523. In an action for the recovery of specific 
 real property, the jury may, in their discretion, 
 find a special verdict ; but the court has no au- 
 thority to require them to find one, and still less 
 to require them to find specific facts. lb. 
 
 524. Setting aside verdict. The judge 
 who tries a cause has no authority, under the 
 Code, to entertain a motion on his minutes to 
 set aside the verdict as contrary to his instruc- 
 tions to the jury. Com. App., 1872, Tinson v. 
 Welch, 61 N. Y. (6 Sick.) 244. 
 
 525. There are but two cases in which a judge, 
 at the circuit, may grant a new trial, viz. : upon 
 a motion, made on his minutes, to set aside a 
 verdict and grant a new trial upon exceptions, 
 or for insufficient evidence, or for excessive 
 damages ; and upon a motion made on a case 
 or exceptions, or otherwise. Sup. Ct., 1862, 
 Wilcox V. Hoch, 62 Barb. 509. 
 
 526. Where the jury render a general verdict 
 in favor of a party, under the direction of the 
 court, but find specific questions of fact sub- 
 mitted to them against such party, he cannot 
 move, at the circuit or Special Term, for a new 
 trial of such specific questions of fact ; but he 
 can only move to vacate the verdict, if the 
 other party will consent, and if not, then move 
 for a new trial on the whole case. lb. 
 
 527. If a paper, not in evidence on the trial, 
 containing criticisms and suggestions in refer- 
 ence to accounts in certain books of account 
 which have been put in evidence, is clandes- 
 tinely put into one of such books after the close 
 of the testimony, and taken in such hook by 
 the jury to their room, that is sufficient reason 
 for setting aside the verdict, without reference 
 to the source or motive of such interference, 
 unless it is shown that none of the jury read it, 
 and therefore that they could not have been in- 
 fluenced by it. N. Y. Supr. Ct., 1875, OBrien v. 
 Merchants Ins. Co., 48 How. 448 ; S. C, 38 N. 
 Y. Supr. (6 J. & Sp.) 482. 
 
 528. Upon appeal from a judgment in an 
 equity case, wherein specific questions of fact 
 were submitted to a jury and their verdict was 
 produced and used on the trial before the court, 
 both parties acquiescing therein and neither 
 moving to set it aside, the General Term has no 
 authority to set aside such verdict and grant a 
 new triaL Ct. App., 1874, Jackson v. Andrews, 
 59 N. Y. (14 Sick.) 244. 
 
 529. That the court was not furnished with 
 any case containing the evidence, is no ground 
 for setting aside such verdict ; but the court 
 shojild presume it to be correct. lb. 
 
 530. There is no analogy between such a case 
 and that of a special verdict ; since in the former 
 ease, if all the issues are not passed upon, the 
 court may try and determine the remainder, 
 while in the latter case the law provides no 
 mode of determining the remaining essential 
 facts except by a jury trial. lb. 
 
 531. If the verdict contains all the facts en- 
 titling the plaintiff to the relief sought and the 
 
PRACTICE. 
 
 599 
 
 Special Term errs in not giving judgment to that 
 efteut, the General Term ought not to set it aside 
 and grant a new trial, but should reverse the 
 judgment and award such a one as should have 
 been given by the Special Term. lb. 
 
 4. Trial by court without jury. 
 
 532. Waiver of jury. A party who pro- 
 ceeds to trial before the court without demand- 
 ing a jury trial or claiming his right- thereto, 
 waives such right. N. Y. Supr. Ct., 1874, Black 
 V. White, 37 N. Y.Supr. (6 J. & Sp.) 320. 
 
 538. Where the complaint sets forth a cause 
 of action of eq^uitable jurisdiction, and demands 
 equitable relief, and also contains allegations 
 sufficient, if proved, to entitle the plaintiff to 
 recover as in an action at law, proceeding to 
 trial before the court without claiming the right 
 to a jury trial, is a waiver of that right as to the 
 legal as well as the equitable cause of action, 
 lb. 
 
 534. In such a case, the court should not dis- 
 miss the complaint on the plaintiff's failure to 
 establish the right to equitable relief, but should 
 either transfer it to the jury calendar, or strike 
 it from tlie equity calendar, or proceed and dis- 
 pose of it as a common law action, conforming 
 the pleadings to the facts proved, if sucli amend- 
 ment does not change substantially the claim or 
 defense. lb. 
 
 635. If defendants in an action for a nuisance, 
 having a right to have the issues settled under 
 the rule and tried by a jury, go to trial before 
 the court without objection, they will be held 
 to have waived a trial by jury, and the findings 
 of the court will stand in place of the verdict of 
 a jury. Sup. Ct. Sp. T., 1872, Huichins v. Smith, 
 63 Barb. 251. 
 
 536. Adjournment to chambers. An ac- 
 tion for the foreclosure of a mortgage upon real 
 estate, unless referred for trial, is triable only 
 at a special term in the county where the prem- 
 ises are situated ; and the judge has no au- 
 thority, under sec. 24 of the Code as amend- 
 ed in 1862, to adjourn the trial to his chambers 
 in another county. Ct. App., 1874, Gould v. 
 Bennett, 49 How. 57 ; S. C, 59 N. Y. (14 Sick.) 
 124. 
 
 637. Adjourning it back to the Special Term of 
 the proper county, after taking part of the tes- 
 timony, does not cure the error, but is additional 
 error. lb. 
 
 538. Exclusion of evidence. In an action 
 upon a promissory note by one claiming as a 
 bona fide holder, where the defense set up is not 
 available against such a holder, if, upon a trial 
 by the court without a jury, the court is satis- 
 fied that the plaintiff is a hona fide holder after 
 all the evidence on that point is in, it is not bound 
 to receive testimony to sustain such defense, even 
 though, had the trial been by jury, there was 
 enougli evidence to require the submission of 
 the question of bona fides to the jury. Ct. App., 
 1872, Brookman v. Milbank, 60 N. Y. (6 Sick.) 
 378. 
 
 539. Findings. In an action against carriers 
 for a loss of goods by fire at the terminus of the 
 carrier's line, where it appears that the agent 
 shipping the goods to the owner, directed to a 
 point beyond that terminus, in the usual course 
 of his business with the carrier, first took a sim- 
 ple receipt for the goods, and afterward a bill of 
 lading by which the carrier's liability was lim- 
 ited to its own line, and loss by fire was except- 
 ed, — Held, that findings as to the place where 
 the carrier's line terminated and the usual 
 
 course of business between the agent and the 
 carrier were essential to the disclosure of the 
 actual contract. Ct. App., 1874, Shelton v. Merch. 
 Des. Trans. Co., 69 N. Y. (14 Sick.) 258. 
 
 540. In a case tried by the court without a 
 jury, if the complaint is dismissed on the plain- 
 tiff's own showing, no special findings are ne- 
 cessary. If the trial is before a referee, he may 
 simply report the fact of such dismissal, and 
 judgment may thereupon be perfected for the 
 defendant. N. Y. Supr. Ct., 1874, Bishopry. 
 Empire Trans. Co., 37N. Y. Supr. (6 J. & Sp.) 12. 
 
 541. If the plaintiff in such a case desires a 
 review on the evidence, he may prepare a case 
 or exceptions, and request the insertion of such 
 findings as he deems necessary, and except to 
 the ruling in case liis request is refused. lb. 
 
 542. Findings of fact by a judge, which are 
 incorporated in the record of judgment, must 
 stand as the findings in the case, unless sent back 
 for correction. The only findings a judge or 
 referee can make at the time Of settling the case 
 or exceptions, are in addition to those previously 
 found, not in contradiction thereof. Sup. Ct., 
 1873, Pendleton v. Hughes, 65 Barb. 136. 
 
 543. Filing decision. The provision of sec. 
 267 of the Code, requiring a judge to file his de- 
 cision, in cases tried by him without a jury, 
 within a specified time after final submission, 
 must be taken with the qualification, necessarily 
 implied, that no other disposition is made of the 
 case. Ct. App., 1874, Brinkley v. Brinkley, 56 N. 
 Y. (11 Sick.) 192. 
 
 544. Feigned issues. After final submission 
 of an equity case to the court, it still has power 
 to direct issues to be tried by a jury ; and this, 
 notwithstanding sec. 267 of the Code requires 
 the decision to be filed within a specified time, 
 lb. 
 
 546. Upon the trial of a feigned issue out of 
 the circuit to determine the question whether an 
 absolute deed was intended as a mortgage, the 
 admissibility of evidence is governed by the 
 rules of equity. Sup. Ct., 1872, Brown v. Clifford, 
 7 Lans. 46. 
 
 646. The court is not bound to accept the ver- 
 dict as conclusive of the question of fact sub- 
 mitted, but may disregard it and decide tlie 
 question for itself, if its conscience is not satis- 
 fied, lb. 
 
 647. Kule 40 of the Supreme Court, which 
 provides that neither party, in a case where a 
 trial of a feigned issue has been had, shall be 
 allowed to question the rulings on the trial at 
 the final hearing or subsequently, unless he has 
 moved at Special Term for a new trial, does not 
 preclude tlie court when the cause is brouglit on 
 for final hearing from rejecting the verdict and 
 ordering a new trial, on its own motion, or from 
 deciding the question of fact for itself. lb. 
 
 548. A feigned issue presenting the question 
 whether an absolute deed was executed and de- 
 livered as a security for money, is substantially 
 the same as though the question had been 
 whether the agreement set forth in the com- 
 plaint, by virtue of which it was claimed to be 
 a mortgage, had been made, and a finding in the 
 affirmative finds that fact. lb. 
 
 549. Decision, ho'w reviewed. The de- 
 cision in a ease tried by the court can be review- 
 ed bnly by appeal from the judgment rendered 
 thereon, or, under sec. 268 of the Code, by 
 motion at general term for a new trial ; and a 
 motion on a case, or exceptions will not be enter- 
 tained at Special Term. N. Y. Supr. Ct., 1875, 
 Westm v. Kelcham, 39 N. Y. Supr. (7 J. & Sp.) 
 54. 
 
600 
 
 PRACTICE. 
 
 5. Reference. 
 
 550. To take proofs. In special proceedings 
 the court still has power to order a reference to 
 take proofs, the provision of art. 6, sec. 10, const, 
 of 1846 not applying thereto. Sup. Ct., 1875, 
 In matter of Bolm, 4 Hun, 558. 
 
 551. In actions for divorce on the ground of 
 adultery, a reference to take proofs and report 
 is proper only where no defense is interposed. 
 If issues have been joined, the reference should 
 be to try and determine such issues. N. T. Supr. 
 Ct Sp T., 1871, Merrill v. Merrill, 11 Abb. N. S. 
 74. 
 
 552. Hearing on report. Upon the coming 
 in of the report of a referee, appointed to take 
 the proofs and report the same with his opinion, 
 in a divorce case, wherein no defense has been 
 interposed, the court may refuse such report in 
 favor of the defendant, and render a judgment 
 for plaintiff, if the proofs show him entitled 
 thereto. lb. 
 
 653. But, where such a reference has been 
 ordered after issue joined, and such a report 
 made, the court ought not to dispose of the case 
 without a trial of the issues in some proper man- 
 ner ; and if it does, leave to reargue may properly 
 be granted. lb. 
 
 654. In equity cases. The former equity 
 practice of determining the rights of the parties, 
 in the first instance, upon the hearing by an in- 
 terlocutory decree, and then, when necessary, 
 referring the case to a master to take and state 
 an account, is continued by the Code so far as 
 consistent therewith. Sup. Ct., 1874, Mundorff 
 V. Mundorff, 1 Hun, 41. 
 
 555. Ordinarily, where the whole issue is re- 
 ferred, it is the duty of the referee to take, state 
 and adjust the accounts of the parties on the 
 basis upon which, by his decision, he may settle 
 their rights. lb. 
 
 556. Where the referee makes an interlocutory 
 report only, by which the rights of the parties 
 are determined, and a further hearing is directed 
 to settle the accounts between them, such report 
 sustains the same relation to the case as the 
 former interlocutory decree, and the court has 
 power to direct that the accounts be taken and 
 settled before the same or another referee. lb. 
 
 657. The provision of the Code (sec. 268) for 
 a review of the decision of the court on a trial 
 without a jury, where it does not authorize a 
 final judgment^ by a motion for new trial at the 
 General Term, has the effect to continue the 
 former practice, and sec. 272 makes it applicable 
 to cases tried before referees. lb. 
 
 558. In equity actions the court may, under 
 sec. 270 of the Code, by consent of parties, order 
 a reference instead of a feigned issue to be tried 
 by a jury. Sup. Ct., 1876, Thurber v. Chambers, 
 4 Hun, 721. 
 
 659. Where, in such a case, he is required to 
 report the proof with his findings, the referee's 
 report, like the verdict of a jury on a feigned, 
 issue, is advisory merely, and the court may 
 form its own conclusions of law and fact from 
 the evidence. lb. 
 
 560. Conditional. Where a defendant pro- 
 poses by stipulation to take the question of a 
 long account out of the issues, for the purpose 
 of avoiding a reference, the court may properly 
 make an order referring the case, unless he shall 
 sign a stipulation in a form prescribed by the 
 court. Sup. Ct., 1875, McAndrew v. Place, 5 
 Hun, 285. , , 
 
 561. Compulsory. The courts had power, 
 previous to the adoption of the constitution of 
 
 1846, to order a reference in cases where no fraud 
 was involved, but a mere ascertainment of dam- 
 ages was required, as, in an action upon an 
 insurance policy where the only question is as 
 to the value of the property destroyed ; and that 
 power is not taken awav by that instrument. 
 N. y. Supr. Ct. Sp- T., 1872, Godfrey v. Williams- 
 burgh City F. Ins. Co., 12 Abb. N. S. 280. 
 
 562. A compulsory reference is not a matter 
 of right, and should not be ordered where the 
 cause can be tried in a reasonable time by the 
 court. lb. 
 
 563. The power of the court to order a com- 
 pulsory reference in an action on contract in- 
 volving the examination of a long account, 
 existed at the time of the adoption of the con- 
 stitution of 1777 and 1822. Sup. Ct., 1875, 
 Place V. Chesebrough, 4 Hun, 576. 
 
 664. Such a reference may be ordered under 
 subd. 1, sec. 271 of the Code, where there are 
 several issues on contract, if one or more of them 
 requires the examination of a long account, 
 although the others do not. lb. 
 
 665. It is not a valid objection to ordering a 
 reference, that the plaintiff is insolvent, and the 
 action brought in bad faith. lb. 
 
 666. What cases referable. If the com- 
 plaint in an action is upon contract, the action is 
 referable, and the fact that the answer sets up a 
 counterclaim and claims damages by way of 
 recoupment, does not render it non-referable. 
 Sup. Ct., 1874, Williams v. Allen, 48 How. 367 ; 
 S. C, 2 Hun, 377. 
 
 567. Long account. Where the trial may, 
 and probably will, involve the examination of a 
 long account, although that may be but one item 
 made up of a large number of small charges on 
 one side, a reference is proper. lb. 
 
 568. In an action on contract where the de- 
 fendant by his answer sets up an affirmative 
 defense or defenses, by way of counterclaim or 
 otherwise, which requires the examination of a 
 long account, the court may direct a reference 
 of all the issues. N. Y. Supr. Ct., 1876, Maryott 
 V. Thayer, 39 N. Y. Supr. (7 J. & Sp.) 417. 
 
 569. It is not necessary, in order to make an 
 account referable, that it should be a statement 
 of dealings having a recognized mutual or recip- 
 rocal character ; but an account consisting of 
 items on one side only, which presents the same 
 kind of difficulties as a strict account for the 
 action of a jury, should be sent to a referee. 
 N. Y. Supr. Ct., 1874, Bossack v. Heyderdahl, 38 
 N. Y. Supr. (6 J. & Sp.) 391 ; Aff'd, S. C, 60 N. 
 Y. (15 Sick.) 634. 
 
 570. A compulsory reference, on the ground 
 that the action involves the examination of a 
 long account, can be ordered only where such 
 account is the immediate object of the suit or 
 the ground of the defense, and is directly and 
 necessarily involved. Ct. App., 1870, Kain v. 
 Delano, 11 Abb. N. S. 29. 
 
 571. Such a reference ought not to be ordered, 
 upon an affidavit of plaintiff's attorney, stating 
 generally that the trial will require the examin- 
 ation of a long account, but without stating how 
 or why, which statement is fully and circum- 
 stantially denied by the affidavit of the defend- 
 ant, when it appears by the pleadings that the 
 plaintiff's claim is upon a written contract and 
 for the recovery of a single and specified sum of 
 money. lb. 
 
 672. In order to render an action on contract 
 referable, the account to be examined must be 
 directly and mainly involved, and must require 
 proof in detail of delivery and value, and the 
 recovery must be of such value. Where no value 
 
PRACTICE. 
 
 601 
 
 is to be ascertained, the price being fixed by the 
 contract, and performance only has to be proved, 
 there is no account to be examined. N. T. Supr. 
 Ct., 1874, DeGraff v. Mackinley, 38 N. Y. Supr. 
 (6 J. & Sp.) 203. 
 
 573. Where the plaintiff's affidavit shows that 
 the trial will require the examination of a long 
 account consisting of upwards of sixty items, and 
 stands uncontradicted, that is sufficient, prima 
 facie, to authorize a reference. lb. 
 
 574. An action on contract is not referable on 
 the ground that the trial will require the examin- 
 ation of a long account, unless that fact clearly 
 appears, and it should appear by the pleadings. 
 The mere affidavit of the moving party that it 
 will do so is not conclusive. N. Y. Supr. Ct. Sp. 
 T., 1874, Lord v. Connor, 48 How. 95. 
 
 575. In an action for work, labor and materials, 
 although it cannot certainly be determined from 
 the complaint or the schedule appended to it 
 whether the cause is referable, yet, if the affi- 
 davit of the plaintiff's agent states positively 
 that the trial of the action will require the ex- 
 amination of a long account, and is in no way 
 controverted, the court may properly refer the 
 cause. Sup. Ct., 1874, The Continental Bank Note 
 Co, V. Industrial Exhibition Co., 1 Hun, 118. 
 
 576. The characteristic of accounts, which 
 makes it expedient to send them to a referee is, 
 that sums have to be remembered figure for fig- 
 ure, sums have to be added, subtractions to be 
 made and calculations of interest on various 
 sums from various dates. Take away this ne- 
 cessity and statements of figures will not be 
 examined on the trial as accounts. N. Y. Supr. 
 Ct., 1874, Ronalds v. Mechanics' Nat. Bank o/N. 
 Y., 37 N. Y. Supr. (5 J. & Sp.) 208. 
 
 577. In an action against a bank to recover 
 interest on a balance of account, on the ground 
 of its refusal to pay checks drawn on it, where 
 the balance is acknoWedged but the refusal to 
 pay denied, the necessity of an examination of the 
 accounts between the parties does not appear, 
 lb. 
 
 578. An action to redeem a certificate, which 
 had been assigned by the plaintiff to the defend- 
 ant, to be held and applied not only in Uquid- 
 ation of an indebtedness of the plaintiff, but of 
 all future advances which the defendant might 
 make, and on which the latter had made several 
 advances and the plaintiff had made payments, 
 is referable ; it being necessary to take an ac- 
 count of such advances and payments before 
 judgment. Sup. Ct., 1871, Ludlow v. American 
 Exch. Nat. Bank, 59 Barb. 509. 
 
 579- An action on an attorney's claim, amount- 
 ing to $4,500, for services rendered in several 
 different departments of professional labor, and 
 embracing twenty different items of charges, 
 presents a proper case for a compulsory refer- 
 ence. N. Y. C. P., 1871, Schermerham v. Wood, 
 4 Daly, 158. 
 
 580. Where payment is set up in the answer, 
 that question must be first disposed of by trial, 
 before an account can be referred ; but, to have 
 that effect, the payment alleged must be such 
 as, if proved, will dispose of the whole of the 
 plaintiff's claim. Xb. 
 
 581 r The fact that questions of fraud may 
 arise on the trial, with reference to the validity 
 of certain receipts and other papers which one 
 party expects will be presented in evidence, is 
 proper to be considered on a motion for a refer- 
 ence, but will not avail on appeal from the order, 
 lb. 
 
 682. Involving question of fraud. An ac- 
 tion on contract involving the examination of a 
 
 long account, is referable, notwithstanding the 
 sole issue presented by the answer is fraud prac- 
 tised in obtaining the contract, or breach of 
 .warranty. Ct. App., 1873, Welsh v. Darragh, 52 
 N. Y. (7Siok.) 590. 
 
 583. It is not a sufficient answer to a motion 
 for a reference, that the answer presents for 
 trial a question of fraud. N. Y. Supr. Ct., 1875, 
 Patterson v. Stettaner, 39 N? Y. Supr. (7 J. & Sp.) 
 413. 
 
 584. Neither is an affidavit made by the attor- 
 ney of the opposing party, stating generally that 
 difficult questions of law are involved, sufficient ; 
 but it must point out the questions of law ex- 
 pected to arise specifically, and in such a man- 
 ner as to enable the court to determine whether 
 they are of any real difficulty. lb. 
 
 585. In an action upon contract, where the 
 plaintiff alleges that the defendants kept false 
 accounts, and seeks to recover a balance alleg- 
 ed to be due on a true accounting, a reference of 
 the whole issue made upon plaintiff's stipulating 
 to claim on the trial only the amount received 
 by the defendants in excess of the contract, — 
 Held, proper, there being nothing left for inves- 
 tigation but a mere account of moneys received.- 
 Sup. Ct., 1874, Bensel v. Gait, 2 Hun, 678. 
 
 586. Offer not to dispute account. In an 
 action for goods sold, where the pleadings and 
 bill of particulars show that the examination of 
 a long account is involved, the plaintiff is en- 
 titled to have a speedy trial by reference ; and 
 the defendant cannot defeat that right by an of- 
 fer, served subsequent to his answer, that he will 
 not on the trial dispute or question the items of 
 plaintiffs claim, but will rely upon the defense 
 that the sale was not to himself. Sup. Ct. Sp. 
 T., 1875, Kennedy v. Kenna, 49 How. 308. 
 
 587. WTiat not referable. If there are 
 several issues in an action any one of which is 
 not compulsorily referable, the court cannot re- 
 fer the action ; but, if the referable issues should 
 require examination, they may, it seems, be re- 
 ferred after the trial of the other issues. N. Y. 
 Supr. Ct., 1873, Evans v. Kalbfleisch, 36 N. Y. 
 Supr. (4J. & Sp.) 450. 
 
 588. A mere affidavit that the trial will in- 
 volve the examination of some 50 items of ac- 
 count, is not sufficient to authorize a reference, 
 where there is nothing in the pleadings from 
 which it can be seen that any account will re- 
 quire examination. lb. 
 
 589. A cause of action to recover unliquidated 
 damages for a breach of a contract is not refer- 
 able ; and if it be joined with a cause of action 
 requiring the examination of a long account, 
 neither of them can be compulsorily referred. 
 N. Y. Supr. Ct., 1874, Ross v. Combes, 37 N. Y. 
 Supr. (5 J. & Sp.) 289. 
 
 590. Laches, effect of. Where the defend- 
 ant, in a case which involved the investigation 
 of a long account, instead of moving for a refer- 
 ence in the court upon whose term calendar it 
 had been placed, made such motion in another 
 branch of the same court, before another judge, 
 and delayed bringing on the motion until the 
 cause was on the day calendar for trial, — Held, 
 that the motion was properly denied on account 
 of the delay. Sup. Ct., 1875, Mayor, etc of New 
 York, V. Genet, 4 Hun, 658. 
 
 591. To attorney. An action upon an attor- 
 ney's bill, to which the defendant interposes the 
 defenses, that the services were not worth the 
 sum claimed ; that there was no contract to pay 
 a sum certain ; and that he had fully paid ; 
 might properly, in some cases be referred to an 
 attorney, as referee, yet in others it would be 
 
602 
 
 PRACTICE. 
 
 improper, especially where the examination of 
 a long account is not involred. Sup. Ct., 1874, 
 Flanders v. Odell, 2 Hun, 664. 
 
 592. To commissioner of appeals. A ref* 
 erence to a commissioner of appeals is not with- 
 in the provisions of sec. 21, art. 6, of the Consti- 
 tution, prohibiting judges of the Court of Appeals 
 from acting in the capacity of referee, and is 
 valid. Ct. App., 1872, Settle v. Van Evrea, 49 
 N. Y. (4 Sick.) 280. 
 
 593. Notice of trial. A defendant is en- 
 titled to 14 days notice of trial of an action 
 before a referee, and a judgment entered in a 
 case where such notice has not been given, is 
 irregular and wiU be set aside, unless notice 
 has been waived. Sup. Ct., 1874, Mohrmann v. 
 Bush, 2 Hun, 674. 
 
 594. The hearing. It is the duty of a referee 
 for the trial of a cause to be always present 
 during the examination of witnesses, but if the 
 parties make no objection at the time, and pro- 
 ceed with the examination and finally submit 
 all the evidence for his decision, the irregularity 
 is waived. N. Y. Supr. Ct., 1871, Metcalf v. 
 Baker, 11 Abb. N. S. 431 ; S. C, 34 N. Y. Supr. 
 •(2 J. & Sp.) 10. 
 
 595. In cases referred to several referees there 
 must be a conference of all the referees, and a 
 substantial conclusion agreed to between atleast 
 a majority of them upon the several questions 
 of law and fact necessary, to be embodied in a 
 report at such conference, or when they are 
 together. N. Y. Supr. Ct., 1870, Townsend v. 
 Glen's FalU Ins. Co., 10 Abb. N. S. 277 ; S. C. 
 38 N. Y. Supr. (1 J. & Sp.) 130. 
 
 596. If, upon the hearing of a cause before 
 three referees, no two of them agree upon any 
 conclusion or findings, a report afterward made 
 by two of them, and signed by them either 
 separately or upon a conference between them, 
 without the presence of or notice to the other, 
 will be irregular, and should be set aside. lb. 
 
 597. Po^rers of referee. A referee has 
 power to render judgment for the plaintiff 
 upon the pleadings alone, in case the answer 
 does not state facts sufficient to constitute a 
 defense. Com. App., 1872, Schuyler y. Smith, 51 
 N. Y. (6 Sick.) 309. 
 
 598. A referee has power, on the failure of a 
 plaintiff to appear on an adjourned day, when 
 he had stipulated to attend, examine witnesses 
 and close his case, to dismiss his complaint ; and 
 such plaintiff will have no ground to complain 
 if, in the order of dismissal, it is stated to be 
 " for want of prosecution," thus showing by the 
 record that it is not upon the merits. Com. 
 App., 1873, Morange v. Meigs, 54 N. Y. ( Sick.) 207. 
 
 599. Section 274 of the Code has no application 
 to such a case, but only to actions against several 
 defendants, where the plaintiff neglects to proceed 
 against one or more of them, thus preventing 
 a disposition of the case by the other or others 
 of them, except as provided in that section. lb. 
 
 600. A referee, in granting a non-suit, must 
 necessarily decide, as matter of law, that there 
 is no evidence whatever to sustain some material 
 allegation of the complaint ; and if the evidence, 
 though not sufficient to constrain him to find 
 for the plaintiff on that issue, is such as would 
 require its submission to a jury, the granting of 
 a non-suit is error. Ct App., 1872, Scofield v. 
 Hernandez, 47 N. Y. (2 Sick.) 313. 
 
 601. Admission of evidence. Upon the 
 trial of an action against several defendants 
 before a referee, if the evidence offered Is ad- 
 missible for any purpose or against any of the 
 defendants, the referee is not bound to declare 
 
 its effect. Sup. Ct., 1875, Lathrop v. Bramhall, 
 3 Hun, 394. 
 
 602. Even after evidence has been received 
 without objection, a referee has power to exclude 
 it, if incompetent, on motion of the adverse 
 party, where it was unnoticed by him at the 
 time. Com. App., 1873, Armstrong v. Ferguson, 
 54 N. Y. (9 Sick.) 659. 
 
 603. A referee, to take and report proofs, has 
 no power to pass upon objections to evidence, 
 and where such objections are not renewed at 
 Special Term and no ruling is had upon them, 
 they are not available thereafter for any pur- 
 pose. Com. App., 1873, Fox v. Mayer, 54 N. T. 
 (9 Sick.) 125. 
 
 604. When evidence offered before a referee 
 is objected to, it is his duty to decide upon its 
 admissibility, and he cannot reserve that question 
 for decision on tlie final disposition of the case. 
 Sup. Ct., 1873, Wagener v. Finch, 65 Barb. 493. 
 S. P., Smith V. Kob'be, 59 Barb. 289 ; Lathrop y. 
 Bramhall, 3 Hun, 394. 
 
 605. A referee ought not to receive and act 
 upon the testimony of a witness as to the value 
 of the services of the plaintiff as an attorney, 
 after he has stated that he knows nothing of 
 their value. Sup. Ct., 1871, Smith v. Kobbe, 59 
 Barb. 289. 
 
 606. It cannot operate injuriously, or in any 
 way affect the right of a party, for a referee to 
 receive evidence objected to, reserving his de- 
 cision as to its admissibility until the conclusion 
 of the trial, if such evidence was competent; 
 but it must then be considered as if received 
 absolutely, and the judgment will not be reversed 
 on that ground. Sup. Ct, 1874, Kerslake v. 
 Schoomaker, 1 Hun, 436. 
 
 607. A referee who receives evidence which 
 is objected to, reserving the question of its ad- 
 missibility, ought, before closing the case, to 
 make his final ruling as to receiving or rejecting 
 it, and advise the parties, so that proper excep- 
 tion may be taken ; otherwise the court may, 
 on motion, open the case and send back the 
 report, or, on appeal, treat such action as erron- 
 eous, if the evidence was material enough to 
 influence the findings. Sup. Ct., 1874, Berrian 
 V. Sanford, 1 Hun, 625. 
 
 608. Amendments. A referee has large 
 discretion in respect to permitting amendments, 
 and it is not an abuse of such discretion to re- 
 fuse to allow a defendant to amend its answer 
 so as to allege title to the demand in suit in a 
 receiver of the plaintiffs assignor, when such 
 motion is made five years after his appointment. 
 Sup. Ct., 1872, Brett v. First Un. So. of Brooklyn, 
 68 Barb. 610. 
 
 609. Where an accord and satisfaction is 
 proved on the trial, though not pleaded, the 
 referee should consider the pleadings as amended, 
 BO as to include that evidence, and decide the 
 case accordingly. lb. 
 
 610. An amendment upon trial before a ref- 
 eree, to a denial in defendant's answer of " in- 
 formation sufficient to form a belief," by sub- 
 stituting the word "knowledge" for informa- 
 tion, — Held to be within the power of the ref- 
 eree, and discretionary with him. Ct. App., 
 1871, Bennett v. Lake, 47 N. Y. (2 Sick.) 93. 
 
 611. A referee has no power at the trial to 
 allow a defendant to withdraw from his answer 
 a second defense consisting of a counterclaim, 
 and after he has commenced a cross action 
 upon it to again insert, as an amendment of his 
 original answer, substantially the same counter- 
 claim, though in different form and claiming 
 larger damages. Sup. Ct Sp. T., 1873, lAveir- 
 
PRACTICE. 
 
 603 
 
 mare v. Bainbridge, 44 How. 357 ; S. C, 14 Abb. 
 N. S. 232, n. 
 
 612. A referee has no power, upon the trial 
 before him of an action to rescind a sale and 
 compel a return of the securities given in pay- 
 ment, on the ground of fraud, to allow an 
 amendment of the complaint which would intro- 
 duce a new and independent cause of action, not 
 within the issues referred to him to try, such as 
 an allegation that he had sustained damages 
 by reason of the fraud, and demanding a re- 
 covery thereof. He should suspend the trial 
 until relief could be obtained by special motion 
 on notice before the court. Sup. Ct., 1874, 
 Sinclair v. Neill, 1 Hun, 80. 
 
 613. The allowance or disallowance of a pro- 
 posed amendment to a pleading by a referee in 
 a case on trial before him, if wilhin his discre- 
 tion, will not be interfered with by the court on 
 motion, but where the referee either has no 
 power or refuses to interfere because of a sup- 
 posed want of power, the trial may be suspended 
 and a motion made to the court at Special Term 
 on notice for that purpose. N. Y. Supr. Ct. 
 Sp. T, 1873, Hochstetter v. Isaacs, 44 How. 495 ; 
 S. C, 14 Abb. N. S. 235, n. 
 
 614. Exceptions to decisions made on the 
 trial to the admission or rejection of evidence, 
 or to any other matter which might be, and ac- 
 cording to the ordinary course of practice would 
 be, required to be taken on the trial, although 
 within the letter of sec. 268 of the Code, must be 
 taken on the trial and not after judgment. N. Y. 
 Supr. Ct., 1873, Dainese v. Allen, 45 How. 430 ; S. 
 C.,14 Abb. N. S. 363 ; 36 N.Y. Supr. (4 J. & Sp.) 98. 
 
 615. The report. A referee is required to 
 make such findings of facts as are necessary to 
 sustain his conclusions of law. As to other facts, 
 merely negative in their character, or immaterial, 
 he is not required to find at all. N. Y. Supr. 
 Ct., 1870, McAndrew v. Whitlock, 2 Sweeny, 623. 
 
 616. The referee should find the facts tliem- 
 selves, and not the evidence of facts ; and no 
 exception wUI lie to his refusal to find the par- 
 ticulars which go to make up his general con- 
 clusions of fact. Sup. Ct., 1875, Avery v. Foley, 
 4 Hun, 415. 
 
 617. Referees appointed by the Supreme Court, 
 under the provisions of ch. 412, Laws of 1862, 
 to determine controversies between members 
 and receivers of mutual insurance companies, 
 must report their findings of fact and conclusions 
 of law separately ; and the court will direct them 
 to do so if they at first neglect it. Sup. Ct. Sp. 
 T., 1872, Harmony F. ^ M. Ins. Co., Matter of, 
 14 Abb. N. S. 292, n. 
 
 618. Construction of. A finding by the 
 referee that the defendant's servant " violently, 
 negligently and carelessly " drove the wagon of 
 defendant against plaintiff's carriage " with great 
 force and violence," does not import a wilful 
 act, but simply negligence. Com. App., 1874, 
 Metcalfy. Baker, 57 N. Y. (12 Sick.) 662. 
 
 619. A general conclusion found by a referee 
 in an action of ejectment, " that the plaintiff is 
 entitled to judgment against the defendants for 
 the possession of said premises," must be held 
 to embrace a finding that the plaintiff is the 
 owner and entitled to the possession, where 
 those facts are clearly supported by the evi- 
 dence, and are the necessary result of the specific 
 facts already found. Sup. Ct., 1875, Gibson v. 
 Stetzer, 3 Hun, 539. 
 
 620. Upon the settlement of a case by the ref- 
 eree before it has been tried, if the referee 
 allows, or declines to allow, all of the additional 
 findings proposed by the parties, that is all that 
 
 he is bound to'do. An express refusal to find as 
 requested must be deemed a ruling that the evi- 
 dence would not justify such finding, or that, if 
 found, the fact would not be material to the 
 issue. Sup. Ct., 1874, Excelsior Petroleum Co. v. 
 Lacey, 3 Hun, 111. 
 
 621. What is the proper practice in such cases 
 oonsidefed. lb. 
 
 622. Exceptions to the report of -a referee 
 must be taken within eight days after notice of 
 its filing, otherwise it becomes absolute under 
 rule 39, although it be defective on its face. 
 Sup. Ct., 1874, Catlin\. Cariin, 2 Hun, 378. 
 
 623. A party cannot require a referee to find 
 facts and conclusions of law against him in such 
 form as he may frame, and to allow exceptions 
 to such adverse findings and conclusions. Ct. 
 App., 1872, Lefler v. Field, 47 N. Y. (2 Sick.) 
 407 ; Aff'g S. C, 42 How. 420. 
 
 624. A general exception, in a case involving 
 questions of general average, " that the average 
 adjustment, statement and apportionment, in the 
 referee's report mentioned, are incorrect as mod- 
 ified by said report," is not sufficient to bring up 
 for review the various items embraced in such 
 report. N. Y. Supr. Ct., 1870, Jones v. Bridge, 2 
 Sweeny, 431. 
 
 625. InaufBcieut report. The right secured 
 to parties by statute, to have separate findings 
 of fact and conclusions of law inserted by the 
 referee in his report is substantial, and a report 
 in which he merely says, " I find that the plain- 
 tiffs liave failed to establish the facts necessary 
 to sustain the complaint. I do therefore find 
 that the defendant is entitled to a judgment dis- 
 missing the complaint with costs," is clearly in- 
 sufficient. Sup. Ct. Sp. T., 1875, Gove v. Ham- 
 mond, 48 How. 385. 
 
 626. The remedy in such a case is not by mo- 
 tion to set aside the report, but by motion to 
 send the case back to the referee to pass specific- 
 ally upon the material questions of fact and law 
 which he has failed to pass upon, or to resettle 
 his report. lb. 
 
 627. On such application the moving party 
 must show the court what findings he desires to 
 have inserted in the report, and that such find- 
 ings are material and necessary to a proper re- 
 view of the judgment. He must also show that 
 he requested the referee at the trial or before the 
 submission, to specifically find such facts and con- 
 clusions of law as he seeks to have inserted. lb. 
 
 628. The order sending the case back should 
 instruct the referee as to the questions on which 
 he is required to add findings. lb. 
 
 629. Refusal to find. A party cannot avail 
 himself, on appeal, of exceptions taken to the re- 
 fusal of the referee, when settling the case, to 
 find in respect to specified questions of fact. If 
 he desires to have such questions passed upon 
 by the referee, so as to present questions of law 
 upon the finding or refusal to find as requested, 
 upon which he may base exceptions, he should 
 request the referee to do so before submitting the 
 case to him ; and may except to his finding or 
 refusal to find as requested within ten days after 
 notice of the judgment. Sup. Ct., 1873, Carroll 
 V. Staten Isl. R. R. Co., 65 Barb. 32. 
 
 630. When the referee has omitted, in his re- 
 port, to make such findings as will give force or 
 point to the exceptions, the party may still, with- 
 in ten days after notice of the judgment, apply 
 to the court to send the case back to the referee, 
 that he may pass specifically upon such questions 
 or resettle liis report. lb. 
 
 631. Neither rule 41, nor sec. 268 of the Code, 
 authorize a judge or referee to insert in the case 
 
604 
 
 PRACTICE. 
 
 new exceptions, or exceptions not in fact taken, 
 when tiie judge could not accede to tiie request, 
 lb. 
 
 632. Where no guestion of parties was raised 
 by the pleadings, a refusal to find that only one 
 of two joint plaintiffs was entitled to recover upon 
 part of the claim, — Held no error, although the 
 evidence tended to support such a finding ; as the 
 plaintiffs were bound by their allegations and 
 were estopped by the recovery from afterward 
 setting up a separate claim. Com. App., 1873, 
 Quinn v. Martin, 54 Y. N. (9 Sick.) 660. 
 
 633. The remedy of a party for the refusal of 
 a referee to pass upon specific questions of fact, 
 is by application to the court to send the case 
 back for a resettlement and to have the material 
 questions specifically decided, and, if the appli- 
 cation is denied, the proceedings to obtain fur- 
 ther findings can be Inserted in the record and 
 the materiality of the findings can be determined 
 on appeal. Com. App., 1873, Meacham v. Burke, 
 54 N. Y. (9 Sick.) 217. 
 
 634. K he fails to make such motion he cannot 
 avail himself, on appeal, of exceptions to the 
 referee's refusal, at the time of making his re- 
 port, to add such findings. Ct. App., 1873, 
 Rogers v. Wheeler, 52 N. Y. (7 Sick.) 262. 
 
 635. A party seeking further findings by a 
 referee, should clearly specify the point upon 
 which he desires the referee to pass, and show 
 that a finding on such point is material to the de- 
 termination of the case ; that, if found in his 
 favor, such finding would necessarily affect the 
 judgment, and that there is evidence upon which 
 the referee might justly have so found ; other- 
 wise, the refusal of the court to require the ref- 
 eree to pass upon the specified questions of fact 
 will present no question which an appellate 
 court can review. Ct. App., 1874, Tallman v. 
 Bresler, 58 N. Y. (13 Sick.) 123. 
 
 636. Terminating reference. Upon failure 
 of the referee to report--in sixty days after the 
 final submission of the case to him, and notice 
 by a party of his election to end the reference 
 under see. 273, all subsequent proceedings by or 
 before the referee are a nullity, and the court 
 has no power to render them valid. Ct. App., 
 1870, Grecjort/ v. Cryder, 10 Abb. N. S. 289. 
 
 637. Any notice distinctly giving the adverse 
 party information that the party serving it has 
 elected to end the reference is sufficient. lb. 
 
 638. The omission of counsel to leave with the 
 referee papers used on the trial, does not sus- 
 pend his power to decide the case, nor prevent 
 the running of the time limited for making the 
 decision. lb. 
 
 639. Where, upon final submission of a cause, 
 an oral agreement is made by the parties in open 
 court, extending indefinitely the time within 
 which the referee may make and deliver his re- 
 port, the reference cannot be terminated in the 
 manner prescribed by sec 273 of the Code ; but 
 it seems the proper practice in such case would 
 be to serve upon the opposite party and the re- 
 feree, notice that unless the report is made with- 
 in a specified reasonable time, the reference will 
 be deemed ended. Ct. App., 1874, Ballou v. Par- 
 sons, 55 N. Y. (10 Sick.) 673. 
 
 640. Where the time for the decision of a 
 case by a referee is extended by a letter from 
 the attorneys for both parties, which proposes a 
 future day for the hearing but fixes no time for 
 the decision, and one of the parties gives a notice 
 terminating the reference at the expiration of 
 sixty days from the day so fixed, the referee 
 cannot afterward decide the action. Sup. Ct., 
 1875, Richards y. Bloom, 5 Hun, 182. 
 
 641. Setting aside report. Where testi- 
 mony has been given upon both sides of a ques- 
 tion, the findings of a referee, like the verdict of 
 a jury, should be disturbed only for some error 
 of law, committed on the trial, or gross error in 
 the findings of fact. N. Y. C. P., 1871, Grube v. 
 Schultheiss, 4 Daly, 207. 
 
 642. Irregularity. It is improper and irreg- 
 ular for a referee, after a case is submitted to 
 him for decision, to approach one party in the 
 absence of the other, and advise him to com- 
 promise, suggesting terms, and his doing so will 
 be good ground for setting aside his report with- 
 out reference to the question whether his sug- 
 gestion and the party's disregard of it had any 
 influence upon his mind in the final determina- 
 tion of the case. pup. Ct. Sp. T., 1878, Liver- 
 more V. Bainbridge, 44 How. 357 ; Aff'd, S. C, 
 14 Abb. N. S. 227 ; 47 How. 350. 
 
 643. Made out of jurisdiction. An amend- 
 ed report, the order for which was granted while 
 the referee was in a foreign country, and which 
 was made by him there and returned and filed 
 here, should not be set aside merely because 
 made out of the jurisdiction of the court. Sup. 
 Ct., 1874, Gooley v. Decker, 47 How. 188. 
 
 644. Mistake of party. Where two cases 
 between the same parties, but pending in differ- 
 ent courts, were referred to the same referee for 
 trial, a party who, through a misunderstanding 
 of the order of the referee as to the trial of the 
 same, failed to introduce tlie proof which he 
 otherwise would have done, is entitled to have 
 the report of the referee vacated and the case 
 opened so far as to let in his proof. Sup. Ct., 
 1874, Devoe v. Nutter, 1 Hun, 713. 
 
 645. Retainer by party. The report of a 
 referee should be set aside on motion, where it 
 appears that, subsequent to his appointment as 
 referee, he has been retained in other matters as 
 an attorney by the successful party, without in- 
 quiring whether his decision was or was not 
 affected by that fact. Sup. Ct., 1873, Stebbins r. 
 Brown, 65 Barb. 272. 
 
 646. Settlement of action. Where the 
 plaintiff's attorney in an action for assault and 
 battery prosecutes the action, after the cause of 
 action has been discharged and released by his 
 client, and obtains the report of a referee in his 
 favor, even though such cause of action had 
 been assigned to the attorney before the release, 
 the defendant has an absolute right to have the 
 report set aside, and the court has no right to 
 impose terms or conditions of granting that re- 
 lief. Ct. App., 1873, Pulver v. Harris, 52 N. Y. 
 (7 Sick.) 73. 
 
 647. Undue influence. Although the report 
 of a referee may and should be set aside upon 
 even slight proof of improper dealings between 
 him and the successful party which are shown 
 to have a tendency to influence his action in 
 favor of such party, yet such report cannot be 
 set aside on motion of tiie unsuccessful party 
 upon mere suspicion or surmise, founded upon 
 previous improprieties with such party. T'lie 
 party charging that such influence has been 
 used must affirmatively establish it. N. Y. Supr. 
 Ct., 1871, Gray v. Fish, 42 How. 135 ; S. C, 12 
 Abb. N. S. 213 ; 33 N. Y. Supr. (IJ. & Sp.) 484; 
 Aff'd, S. C, 63 N. Y. (8 Sick.) 630. 
 
 648. Judgment on report. Even though an 
 order of reference " to hear and determine the 
 action" also requires the referee to "report 
 thereon to this court," it is regular to file his re- 
 port and enter up judgment thereon without any 
 further application to the court. Sup. Ct., 1871, 
 Bouton V. BovAon, 42 How. 11 ; Kev'g S. C, 40 
 
PRACTICE. 
 
 605 
 
 How. 217. S. V-yMacalfv. Baker, 11 Abb. N. S. 
 431 ; S. C, 34 N. Y. Supr. (2 J. & Sp.) 10. 
 
 649. Setting aside judgment. Upon a 
 motion to set aside a judgment entered upon 
 the report o£ the referee who tried the case, 
 without application to the court, although the 
 party claims that relief as a legal right, on the 
 ground of irregularity, and not on the ground 
 of " mistake, inadvertence or excusable neglect," 
 yet, where the moving papers sufficiently show 
 that his counsel upon the trial before the referee 
 was laboring under a mistake as to the practice, 
 and the powers and duties of the referee, and 
 has acted throughout in good faith, the court 
 may, under sec. 174 of the Code, in its discre- 
 tion and in furtherance of justice, relieve the 
 party from the judgment and report, upon such 
 terms as may be just. Sup. Ct., 1871, Bouton v. 
 Bouion, 42 How. 11. 
 
 6. Inquests or defaults, 
 
 660. Judgments on. The Code does not au- 
 thorize a judgment upon a verified complaint 
 alone, in default of an answer, except in an 
 action for the recovery of money only. An 
 action by a widow for the recovery of her 
 dower is not one of that class, and a judg- 
 ment rendered in such an action, where the in- 
 fant defendants have answered submitting their 
 rights to the court, upon mere proof of service 
 of the papers and of the failure of the adult de- 
 fendants to answer, cannot be sustained, and a 
 purchaser at a sale on such judgment is not 
 bound to complete his purchase. Sup. Ct. Sp. T., 
 1872, Dmer v Dwyer, 13 Abb. N. S. 269. 
 
 651. Where a summons without a copy of the 
 complaint was served on the defendant upon the 
 17th day of June, and two days after acopy of the 
 complaint was left at his office, but defendant 
 did not serve any notice of appearance or put in 
 any answer within 20 days after service of sum- 
 mons, — Held, that plaintiff was entitled to judg- 
 ment by default, at the expiration of such 20 
 days. Sup. Ct., 1874, Pame v. McCarthy, 1 Hun,78. 
 
 662. A defendant who has appeared in the 
 action but failed to answer, is entitled to but one 
 notice of motion for the relief demanded in the 
 complaint; and final judgment may be entered 
 at once, upon proof taken by the court, or upon 
 the coming in of a referee's report, without fur- 
 ther notice. N. Y. C. P. Sp. T., 1870, Walsh v. 
 Weiden/eld,, 3 Daly, 334. 
 
 653. Where the defendant's time to answer 
 is extended by order of court on condition that 
 he take short notice of trial and the date of 
 issue be entered of the date when the answer 
 was originally due, if after notice of trial and 
 the commencement of the term, the defendant 
 answers, but does not file an affidavit of merits, 
 the plaintiff may properly take an inquest, and 
 enter judgment, even though the defendant's 20 
 days to amend his answer have not expired. 
 N. Y. C. P. Sp. T., 1873, Burroughs v. Garrison, 
 15 Abb. N. S. 144 
 
 654. Assessment by sheriffs juiy. It is 
 not good reason for postponing the assessment 
 of damages by a sheriff's jury, that the defend- 
 ant cannot be present, where it does not appear 
 that if he were present he could give evidence 
 tending to lessen the verdict, or of facts denied 
 by the plaintiff. Sup. Ct. Sp. T., 1872, Samuels 
 V Bryant, 14 Abb. N. S. 442. 
 
 655. Where the first assessment by a sheriff's 
 jury has been set aside for irregularity, the 
 same jurors ought not to be placed upon the 
 panel for a second assessment. lb. 
 
 656. Default in equitable action. In an 
 
 equity action, although no answer or demurrer 
 is interposed, the plaintiff is not entitled as of 
 course to the relief asked for in his complaint, 
 but it may be denied upon the hearing of the 
 application for judgment, either for want of 
 jurisdiction in the court, or because the com- 
 plaint does not state a cause of action, and the 
 defendant has the right to raise those objections 
 even after default. Ct. App., 1863, Pumpelly v. 
 Village of Owego, 45 How. 219. 
 
 657. Opening defaults. Wliere a judgment 
 has been entered by default in an action upon a 
 contract containing a provision for a penalty for 
 non-performance, for the full amount of such 
 penalty, such judgment should be set aside on 
 application of the defendant, and he be permit- 
 ted to answer. N. Y. C. P. Sp. T., 1872, Greer 
 V. Tweed, 13 Abb. N. S, 427. 
 
 658. A motion to reopen a case and allow the 
 defendant to answer may properly be denied, 
 unless founded upon a sufficient affidavit, accom- 
 panied by an affidavit of merits. Sup. Ct., 1874, 
 Catlin V. Gatlin, 1 Hun, 322. 
 
 659. The power of the court to open a default 
 in a divorce case, where the summons was served 
 by publication, and allow the defendant to come 
 in and answer, was not taken away by subd. 5, 
 sec. 135 of the Code. Ct. App., 1874, Brown v. 
 Brown, 58 N. Y. (13 Sick.) 609; Rev'g S. C, 1 
 Hun, 443. 
 
 660. A judgment of divorce entered by default 
 after service by publication, will not he vacated 
 and the defendant allowed to answer, when it 
 appears that he knew of the action and design- 
 edly omitted to answer. Sup. Ct., 1874, Brown 
 V. Brown, 2 Hun, 677. 
 
 661. A person against whom a judgment has 
 been taken by default, regular on its face, but 
 in fact without any service of summons on him, 
 is entitled to have such judgment set aside on 
 motion. Ct. App., 1874, White v. Coulter, 59 N. 
 Y. (14 Sick.) 629 ; Rev'g S. C, 1 Hun, 357. 
 
 662. A judgment entered by default, in a case 
 where the admission of personal service of the 
 summons and complaint was antedated, for the 
 purpose of giving the plaintiff a preference and 
 enabling him to take judgment before another 
 creditor who had previously commenced actions 
 against the defendant, although it may be good 
 by estoppel as against the defendant, is void as 
 against the other judgment creditor, and will be 
 set aside on his motion. Sup. Ct. Sp. T., 1874, 
 Trolan v. Fagan, 48 How. 240. 
 
 663. An order setting aside a judgment, en- 
 tered by default after publication of summons 
 without attachment of property, on motion made 
 by the defendant 13 years after notice of 
 the judgment, on the grounds that the affidavits 
 on which the order of publication was granted 
 did not state sufficient facts to authorize the 
 order, nor state any facts except upon informa- 
 tion and belief, and that the defendant was at 
 the time such suit was commenced an actual 
 resident of this State, and was only temporarily 
 absent, leaving his family on the farm which he 
 had occupied for 28 'years, reversed by the Gen- 
 eral Term on appeal. Sup. Ct., 1874, Smith v. 
 Matson, 47 How. 118. 
 
 664. A judgment entered by default, three 
 years after service of summons, every step in 
 the action except such service being taken after 
 the death of the defendant, set aside on motion 
 of his administrator. Sup. Ct., 1871, Livingston 
 V. Rendall, 59 Barb. 493. 
 
 665. Although the time to answer, under the 
 Code, expires by its own limitation, without the 
 
606 
 
 PRACTICE. 
 
 entry of anj' rule for default, yet the mere lapse' 
 of the time limited is not equivalent to the re- 
 coTery of a judgment, on which a judgment 
 could be filed and recorded after the death of 
 the defendant, and a suggestion of his death 
 entered. lb. 
 
 666. A defendant against ■vrhom a judgment 
 on contract is entered by default, and who was 
 several times afterward examined on supple- 
 mentary proceedings under it, without objecting 
 to its regularity, cannot on motion, made some 
 20 years afterward, have such judgment set 
 aside on the ground that he was an infant when 
 the judgment was entered and that no guardian 
 ad litem had been appointed for him in the ac- 
 tion. Such delay is a waiver of the irre^arity. 
 N. y. Supr. Ct. Sp. T., 1873, Howard v. Dusenbury, 
 44 How. 423. 
 
 667. A judgment in foreclosure entered by 
 default, after an appearance regular in form, 
 will not be set aside merely because such ap- 
 pearance was in fact unauthorized, where it is 
 not alleged that the attorneys who appeared are 
 insolvent. Sup. Ct., 1874, Powers v. Trenor, 3 
 Hun, 3 ; AfE'g S. C, 48 How. 500. 
 
 668. Such a judgment will not be set aside 
 upon a mere affidavit of merits, and affidavits 
 excusing the default, but the defendant must 
 either produce the sworn answer he proposes to 
 put in, or state in his petition or affidavit the 
 nature of his defense and his belief in the mat- 
 ters constituting it, so far at least as to enable 
 the court to see that injustice will probably be 
 done by permitting the judgment to stand. lb. 
 
 669. A judgment dismissing the complaint, in 
 a cause which was once put over as a pure mat- 
 ter of favor, with notice that it must be tried 
 when again called, and was attempted to be put 
 over a second time upon a false statement made 
 by tlie plaintiff, should not be opened on his mo- 
 tion. Sup. Ct. S'p. T., 1875, Duncan v. De Witt, 
 49 How. 131. 
 
 670. Where, 'after the appointment of a re- 
 ceiver to a bank, a summons in an action against 
 such bank is served on its president, and in con- 
 sequence of his neglect to defend or to notify 
 the other officers or the receiver thereof a judg- 
 ment is entered against the bank in such action 
 by default, such judgment should be set aside 
 upon application of the receiver and some of 
 the directors, made promptly after notice of the 
 default, supported by affidavits showing merits 
 and the facts constituting their excuse for the 
 default. Sup. Ct., 1874, Security Bank of N. Y. 
 Oity V. ISlat. Bank of the Commonwealth, 48 How. 
 135 ; S. C, 2 Hun, 287. 
 
 671. Condition of. A judge at Special 
 Term ha§ no power to make the waiver of a 
 material issue a condition of opening a default 
 and inquest taken at the trial term. N. Y. 
 Supr. Ct., 1873, Horn v. Brennan, 46 How. 479. 
 
 7. Bill of Exceptions. 
 
 672. What should contain. All that is 
 proper in a bill of exceptions is a concise state- 
 ment of facts, presenting the points intended to 
 be relied upon as ground of error, or simply so 
 much of the evidence as may appear to be 
 requisite for the same purpose. Sup. Ct., 1874, 
 Tweed v. Davis, 1 Hun, 262 ; S. C, 47 How. 162. 
 
 673. Where a party who has presented a large 
 number of written propositions to the court, at 
 the conclusion of the evidence, and requested 
 that they "be given to the -jury, merely takes a 
 general exception to each refusal, modification 
 or departure therefrom in the charge of the 
 
 court, he is not entitled to insert in the bill of 
 exceptions the several portions of the charge 
 which he considers constituted such refusals, 
 &c., with specific exceptions to each of them, 
 lb. 
 
 674. If an exception be taken more than once 
 on substantially the same state of facts, it should 
 be stated but once in the bill. lb. 
 
 676. Where several jurors have been chal- 
 lenged and excluded on substantially the same 
 grounds, and a fair trial has been had by a jury 
 of 12 competent men, the exception to such 
 exclusion should appear but once, if at all, in 
 the bill. lb. 
 
 676. Correcting case. The General Term 
 cannot correct the case as settled, on a motion. 
 Sup. Ct., Porter v. Parks, 2 Hun, 675. 
 
 677. Piling of bill. Under the rules of the 
 Superior Court requiring an order from the 
 judge or referee trying the cause before a case or 
 exceptions can be filed or annexed to the judg- 
 ment roll, a simple direction to the clerk by such 
 judge to file a case is all that is necessary. N. 
 T. Supr. Ct., 1870, Ward v. Central P.^N.Sr E. 
 Riv. R. R. Co., 2 Sweeny, 701. 
 
 678. Hearing on. 'The General Term has no 
 right to hear a mere motion for a new trial, on 
 exceptions, after a judgment has been entered, 
 unless an appeal is taken therefrom. Sup. Ct., 
 1871, Merchants' Bank v. Scott, 59 Barb. 641. 
 
 679. Where the judgment has been irregularly 
 or improperly entered, contrary to the order of 
 the Special Term staying proceedings to enable 
 a party to make and serve a case and exceptions, 
 to be heard in the first instance at the General 
 Term, such party should make a motion to set 
 aside the judgment, before bringing on the hear- 
 ing on his exceptions. lb. 
 
 ' V. JUDQMBNT. 
 1. Entry; form; validity; lien. 
 
 680. Entry of. Upon the trial of an issue 
 of fact by the court, its decision is a judicial 
 act, and is complete when reduced to writing. 
 Thie entry of judgment is a mere clerical act, 
 which may be done by the clerk at any time 
 after the decision is filed. N. Y. Supr. Ct., 
 1875, Roberts v. White, 39 N. Y. Supr. (7 J. & 
 Sp.) 272. 
 
 681. The expiration of the judicial term of the 
 justice by whom the decision was made, before 
 the same was filed and judgment entered, would 
 not render such entry irregular. lb. 
 
 682. Where the decision contains a provision 
 which is unauthorized, such as one for a re- 
 ference, in consequence of which the entry of 
 judgment is delayed, the party in whose favor it 
 was rendered may properly apply to the court 
 at Special Term, and have the same modified by 
 striking out such unauthorized provision, and 
 judgment entered upon it as modified. lb. 
 
 683. Such a judgment ought not to be en- 
 tered as of the date of the original decision, as 
 that might affect the rights of others not par- 
 ties to the suit. lb. , 
 
 684. Where the party in whose favor a judg- 
 ment is rendered refuses to enter the same of 
 record, the defeated party may, on motion, com- 
 pel such entry for the purposes of appeal, and 
 no advantage can be taken thereof in the ap- 
 pellate court. Ct. App., 1870, Skinner v. Quin, 
 43 N. Y. (4 Hand,) 99. 
 
 685. Staying entry of. The court has 
 power over its own judgments, and may in the 
 exercise of a sound discretion, stay the entry of 
 
PRACTICE. 
 
 607 
 
 a judgment after a trial and verdict, in other 
 cas^s than those named in sec. 265 of the Code. 
 N. Y. Supr. Ct., 1875, Alfaro v. Davidson, 39 
 N. Y. Supr. (7 J. & Sp.) 408. 
 
 686. Notice of entry of judgment. The 
 service of a notice of the entry of judgment by 
 throwing it through a fan-light, or pushing it 
 under the door of an attorney's office, when the 
 door is locked and no one within, or by procuring 
 a key and unlocking the door, and placing it in 
 a conspicuous place in the office, is insufficient. 
 N. Y. Supr. Ct., 1873, Haight v. Moore, 36 N. Y. 
 Supr. (4 J. &Sp.)294. 
 
 687. An affidavit showing service of such 
 a notice, during office hours, by leaving it in a 
 conspicuous place in an office, no one being 
 therein on whom service could be made, is 
 insufficient unless it also shows that the office 
 door was at the time open or unlocked. lb. 
 
 688. By confession. Under sec. 882 of the 
 Code, a valid confession of judgment may be 
 made, to secure future or contingent liabilities ; 
 as for notes or other commercial paper to be ad- 
 vanced for the benefit of the party confessing, 
 for which the one advancing is to provide at 
 maturity. Ct. App., 1873, Cooke v. Whipple, 56 
 N. Y. (10 Sick.) 150. 
 
 689. On demurrer. In an action not upon a 
 joint liability, where one defendant demurs and 
 the others answer, if the demurrer is sustained, 
 judgment may be immediately entered thereon 
 for costs,without waiting for the determination of 
 the case as to the other defendants. N. Y. C. P. Sp. 
 T., 1873, CamblosvrButterfield, 15 Abb. N. S. 197. 
 
 690. Form and effect. A judgment can be 
 allowed for a cause of action not intended to be 
 pleaded, only when the complaint states facts 
 sufficient to constitute that cause of action, in ad- 
 dition to those necessary to constitute thft cause 
 of action intended to be pleaded. N. Y. Supr. 
 Ct., 1874, Atwood v. Lynch, 37 N. Y. Supr. (5 J. & 
 Sp.) 5. 
 
 691. Where the complaint contains allegations 
 sufficient to constitute a cause of action either in 
 tort or on contract, a judgment may be rendered 
 for whichever is supported by the proof. N. Y. 
 Supr. Ct., 1874, Ladd v. Arhell, 37 N. Y. Supr. (5 
 J. & Sp.) 35. 
 
 692. Upon a complaint for a tort, no recovery 
 can be had as for money had and received, 
 although a cause of action therefor is proved. 
 Com. App., 1873, Bemhard v. Seligman, 54 N. Y. 
 (9 Sick.) 661. 
 
 693. Although the court is not controlled by 
 the prayer for relief in the complaint, but may 
 give any other relief consistent with the case 
 made in the complaint, yet the judgment must 
 be according to the allegations and proofs, and 
 cannot be given in direct hostility to the theory 
 of the action, and the substantial allegations of 
 the complaint. Where that assumes the legality 
 of the transaction on which the action is based, 
 it cannot be treated as illegal. Com. App., 
 1874, Graham v. Read, 57 N. Y. (12 Sick,) 681. 
 
 694. Legal and equitable relief. Where 
 the complaint states facts giving an equitable 
 cause of action and also a legal cause of action 
 arising out of the same transaction, the plaintiff 
 is entitled to have the issues in both causes 
 tried, if necessary, to obtain his rights, and 
 though he fails to make out a case for purely 
 equitable relief, his complaint should not be dis- 
 missed, but he should jbre allowed to prove 
 his claim for damages, and to recover them in 
 the same action. Ct. App., 1874, Sternberger v. 
 McGovem, 15 Abb. N. S. 256 ; S. C, 56 N. Y. (11 
 Sick.) 12 ; Rev'g 4 Daly, 456. 
 
 695. Adjustment of equities. In an ac- 
 tion by a stockholder of a manufacturing cor- 
 poration, in behalf of himself and others, to set 
 aside a lease of the works and property of the 
 corporation to another corporation, for more 
 than one year, the court is not bound to adjust 
 the equities between the two corporations, where 
 they are not embraced in the pleadings compris- 
 ing the issues tried. Sup. Ct., 1871, Copeland v. 
 Citizens Gas Co., 61 Barb. 60. 
 
 696. In action to compel building of 
 crossing. In an action by the proprietor of 
 lands adjoining a railroad to compel the com- 
 pany to build a suitable farm crossing for his 
 nse, where it appeared that one had already 
 been built by the company, which was incon- 
 venient and difficult of access, and that the ex- 
 pense of building a new crossing would exceed 
 the damages suffered by the plaintiff, — Seld, 
 that the court, instead of directing a specific 
 performance by the company of the duty im- 
 posed by statute, might properly give judgment 
 for the damages. Com. App., 1873, Wademan v. 
 Albany ^ Susq. R. R. Co., 51 N. Y. (6 Sick.) 568. 
 
 697. In action for conversion. In an ac- 
 tion for a conversion, founded on a sale of 
 stocks by a broker, the answer setting up a 
 counterclaim for advances, and a failure to fur- 
 nish margin, it is proper for the referee to state 
 an account between the parties, and judgment 
 may be entered in favor of the defendant for the 
 balance found due him. Ct. App., 1871, Stewart 
 V. Drake, 46 N. Y. (1 Sick.) 449. 
 
 698. In replevin. In an action for the recovery 
 of property taken by a collector of taxes, if he 
 shows that the same was taken under a warrant 
 for the collection of taxes against the owner, he 
 makes out a complete defense, and is entitled to 
 j udgment for the return of the property, and dam- 
 ages for its detention, having acquired a special 
 property in it by the levy. Sup. Ct., 1874, 
 Niagara Elevating Go. v. McNamara, 2 Hun, 416. 
 
 699. In action by several plaintiffs. 
 Although, in an action by two plaintiffs for a 
 tort, where it appears that they have no joint in- 
 terest in the cause of action, but one of them has 
 an individual claim for relief, the court has 
 power to award judgment in favor of one and 
 against the other ; yet, it is not bound to do so, 
 and a judgment against both will not be dis- 
 turbed on appeal. Com. App., 1872, Calkins v. 
 Smith, 48 N. Y. (3 Sick.) 614. 
 
 700. In action against several defend- 
 ants. In an action against two out of four 
 debtors, who are liable jointly and severally, 
 judgment may be rendered against one alone, 
 where the other is not served. N. Y. Supr. Ct., 
 1869, Quigley v. Walter, 2 Sweeny, 175. 
 
 701. The several owners of a ship are jointly 
 liable upon a contract of carriage made by them, 
 and under sec. 136 of the Code, judgment may 
 be taken against such of them as are served, to 
 be enforced against their joint property. N. Y. 
 C.P. Sp. T., 1870, Wright v. Marshall, 3 Daly, 331. 
 
 702. Where one of several defendants inter- 
 poses an equitable defuse which is available to 
 himself alone, the court has power to give him 
 a several judgment against the plaintiff, and 
 the latter, a several judgment against the other 
 defendants. Ct. App., 1872, Barker v. Cocks, 50 
 N. Y. (5 Sick.) 689. 
 
 703. Where one of the joint makers of a note, 
 being a member of an association for whose 
 benefit it is given, is made defendant in an ac- 
 tion thereon because of his refusal to be made 
 plaintiff, the action may be regarded as one on 
 the individual promise of the other maker, not' 
 
608 
 
 PKAGTICE. 
 
 withstanding the complaint asks judgment 
 against both. Sup. Ct., 1874, Hopkins v. Lane, 
 2 Hun, 38. 
 
 704. The proper judgment in such a case would 
 be that the plaintiffs recover the amount of the 
 note against the latter defendant ; without preju- 
 dice to their rights as between themselves and 
 the former defendant, both as to his ultimate 
 liability, on the note, and as to matters growing 
 out of the transaction in which it was given. lb. 
 
 705. Under a complaint alleging a joint agree- 
 ment by the defendants to deliver up certain 
 securities held by them, upon a specified con- 
 tingency, the happening of such contingency, a 
 demand, and that the defendants wrongfully 
 refused to deliver them up, and wrongfully dis- 
 posed of and converted them to their own use 
 to plaintiff's damage; and asking judgment for 
 the value of the securities and interest, — a de- 
 fendant not personally served may, upon judg- 
 ment recovered, be proceeded against under sec. 
 375 of the Code, as a defendant jointly indebted 
 upon contract. Com, App., 1870, Austin v. Raw- 
 don, 44 N. Y. (5 Hand,) 63. 
 
 706. The allegations of a " wrongful refusal " 
 and a " wrongful conversion," must be regarded 
 as part of the allegation averring a breach of 
 the contract, and not as averments in trover. lb. 
 
 707. Directing as to execution. Where 
 the complaint, in an action for money had and 
 received to plaintiff's use, alleges facts which 
 would entitle him to a judgment, irrespective of 
 the capacity in which the defendant acted, the 
 character or nature of his employment is not an 
 issuable fact, and a judgment declaring that he 
 acted in a fiduciary capacity and directing exe- 
 cution to issue against his body is unauthorized. 
 Com. App., 1873, Prouty v. Swifi, 51 N. Y. (6 
 Sick.) 594. 
 
 708. On gold contract. In an action upon 
 a contract payable in gold the damages should 
 be assessed and the judgment made payable in 
 gold. N. Y. Supr. Ct., 1871, Stephens v. Howe, 
 34 N. Y. Supr. (2 J. & Sp.) 133. 
 
 709. In an action to recover moneys paid out 
 for a corporation, where the referee finds the 
 amount to which the plaintiff is entitled in coin, 
 the judgment should be for that amount, payable 
 in coin, and not for that amount with the pre- 
 mium on gold added, payable in currency. Ct. 
 App., 1874, Wild V. iV. Y. ^ Austin Silver Min- 
 ing Co., 59 N. Y. (14 Sick.) 644. 
 
 710. For conversion of gold. In an action 
 for a conversion of gold, the judgment should 
 be in form for gold dollars, and not for its value 
 in currency at the time of demand. Ct. App., 
 1872, Phillips V. Speyers, 49 N. Y. (4 Sick.) 653. 
 
 711. For gold lost at an inn. Where gold 
 coin is lost at an inn, under circumstances ren- 
 dering the keeper liable, the recovery should be 
 for the amount of gold lost, payable in coin, and 
 not for the value of the gold in currency. The 
 recovery should in all oases be for what is lost, 
 whether by breach of contract or for a tort. 
 Allen, J., dissents. Ct. App., 1871, Kellogg v. 
 Sweeny, 46 N. Y. (1 Sick.) 291 ; Modifying S. C, 
 1 Lans. 397. 
 
 712. Against heirs. Where, upon the death 
 of a defendant in an action, the object of which, 
 in part, is to compel an account of rents and 
 profits for lands wrongfully held by the deceased, 
 a supplemental complaint is filed to bring in the 
 infant heirs, containing simply allegations of the 
 death and heirship, a judgment against such 
 heirs personally, for the rents and profits accru- 
 ing since the decease, is unauthorized. Ct. App., 
 1871, Taylor v. Taylor, 48 N. Y.-(4 Hand,) 678. 
 
 713. In action for redemption. In an action 
 to have an absolute deed, executed by the plain- 
 tiff, declared a mortgage, and to compel a recon- 
 vevance of the property, the plaintiff should be 
 granted that relief on payment of the debt and 
 interest to the time of redemption, if he estab- 
 lishes the transaction for which the deed was 
 given to be a loan of money, although no tender 
 was made or offer of payment inserted in his 
 complaint. Sup. Ct., 1875, Marvin v. Prentice, 
 49 How. 385. 
 
 714. He may in such a case be subject to the 
 costs of the action. lb. 
 
 715. Docketing. A confession of judgment 
 filed in the county clerk's office after the close 
 of business hours is ineffectual to constitute a 
 valid judgment, and a levy by execution there- 
 under, upon property of the judgment debtor, 
 before the opening of the office on the next suc- 
 ceeding business-day, will avail nothing. Com. 
 App., 1873, Hathaway v. Howell, 64 N. Y. (9 
 Sick.) 97. 
 
 716. Judgment roll. A judgment roll is not 
 rendered invalid by the failure of the clerk to 
 sign it. The Code does not expressly require 
 his signature, and the provision of the Revised 
 Statutes (2 Edm. Stats; 373, sec. 11) relative to 
 judgment records does not apply. Ct. App., 
 1873, Goelet V. Spofford, 55 N. Y. (10 Sick.) 647. 
 
 717. Where, after an order overruling defend- 
 ant's demurrer, with leave to answer within 20 
 days, has been affirmed on appeal, the plaintiff 
 enters judgment by default, but fails to file an 
 affidavit of defendant's failure to answer, the 
 court may allow the judgment roll to be amend- 
 ed by adding such affidavit, and, as a condition 
 thereof, may direct that the judgment entered 
 be stricken out, and a new one be entered of 
 the data of the order. Sup. Ct., 1875, Trades- 
 men's Nat. Bank v. McFeely, 3 Hun, 699. 
 
 718. Lien of judgment. A debtor cannot, 
 by parol agreement, extend the lien of a judg- 
 ment against him so as to make it, in effect, a 
 personal mortgage of all his personal property. 
 Such an agreement could not operate as a pledge, 
 there being no delivery, nor as a mortgage or 
 conditional sale, there being no compliance with 
 the statute of frauds ; and a court of equity 
 would not enforce it. Com. App., 1872, Lanning 
 V. Carpenter, 48 N. Y. (3 Sick.) 408. 
 
 719. Where the judgment of the Special Term 
 is reversed, on appeal to the General Term, and 
 a certificate of the fact of such reversal is given 
 upon which the clerk discharges and cancels the 
 docket, the reversal of the decision of the Gene- 
 ral Term by the Court of Appeals does not restore 
 the lien of the judgment, as against one who 
 purchases and takes a conveyance of land which 
 would have been subject thereto, in good faith 
 and for a valuable consideration, while the 
 docket shows the judgment to be cancelled. Sup. 
 Ct., 1873, Foot v. Dilldye, 65 Barb. 521. 
 
 720. Priority. ■ In order to entitle an equita- 
 ble claim upon land to priority over a judgment 
 lien thereon, it must have existed prior to the 
 recovery of the judgment. Sup. Ct., 1871, Cook 
 V. Kraft, 41 How. 279 j S. C, 3 Lans. 512; 6C 
 Barb. 409. 
 
 721. A judgment recovered against the lessee 
 of real estate is a lien upon his leasehold interest 
 and is prior to the equitable claim of his assignee 
 for moneys expended for improvements on the 
 premises. lb. 
 
 2. Correcting ; modifying ; vacating. 
 
 722. Conforming to facts. Where a judg- 
 
PEACTICE. 
 
 609 
 
 ment, entered in the ordinary form upon an 
 assessment of damages by a sheriff's jury, was 
 afterward amended, on motion of defendant, by 
 inserting a statement that the defendant " was a 
 non-resident upon whom no personal service was 
 made, but who liad property within tlie State 
 liable to attachment," — Held, that the amend- 
 ment did not change tlie character or force of 
 the judgment ; but tlie court could not, on ap- 
 peal from the order, determine as to the validity 
 of the judgment, or whether it could be enforced 
 against tlie property of the defendant in this 
 State. Ct. App., 1875, Bartlett v. McNeil, 60 N. 
 Y. (15 Sick.) 53; Aff'g S. C.,49 How. 65; 3 Hun, 
 221. 
 
 723. In replevin. The proper mode of cor- 
 recting a judgment in replevin, which is erroneous 
 in being for the value of the property, instead of 
 being in the alternative for its possession, or in 
 case delivery cannot be had, for its value, is by 
 motion and not by appeal. Sup. Ct, 1875, Young 
 V. Atwood, 5 Hun, 234 
 
 724. Modifying. The reconsideration of a 
 question by the Supreme Court of the United 
 States, with a result adverse to its first judg- 
 ment, does not affect existing judgments of 
 State courts, or call for a modification and 
 change of their records to meet the changed 
 views and judgnient of that court. Ct. App., 
 1874, Miller v. Tyler, 58 N. Y. (13 Sick.) 477. 
 
 725. The jurisdiction to set aside a judgment 
 involves the right to give any less or minor relief 
 by which justice may be attained, or the rights 
 of a party in excusable default may be protected. 
 Accordingly, — Held, that on a motion by such a 
 party to vacate a judgment, the court might 
 properly, while denying the relief asked, order 
 that he have leave to bring an action to review 
 the judgment in reference to any particular 
 issues involved, and that as to those matters the 
 judgment be not conclusive upon the* parties. 
 Com. App., 1874, McCaU v. McCall, 54 N. Y. 
 (9 Sick.) 541. 
 
 726. Vacating. The Supreme Court has con- 
 trol over its own judgments and decrees, and 
 will vacate a judgment which has been improp- 
 erly obtained, upon such notice as, in view of 
 tlie circumstances of the case, it maj' deem just 
 and proper. Sup. Ct. Chambers, 18T4i, Dinsmore 
 V. Adams, 48 How. 274. 
 
 727. The power to do so is inherent and not 
 limited by sec. 174 of the Code, wliich has 
 refereiice only to ordinary defaults. lb. 
 
 728. When the aflidavits on the motion are 
 conflicting, the court will look to the record and 
 the undisputed facts, and grant the motion if 
 they require it. lb. 
 
 729. Judgnient by confession. A judg- 
 ment entered by confession as security for the 
 payment of a stipulated sum as compensation 
 for services to be rendered in a suit, should not 
 be set aside on motion of the defendant, after he 
 has compromised his suit, but proceedings should 
 be stayed until the amount due the plaintiff for 
 services rendered previous to the compromise is 
 ascertained either by a reference, or by an action 
 on the agreement. Sup. Ct., 1871, Carey v. Grant, 
 59 Barb. 574. 
 
 730. Conjectural verdict. A verdict, the 
 amount of which is determined by mere conjec- 
 ture, and is not based upon any calculation 
 warranted by the testimony, will be set aside, 
 as not supported by sufficient testimony. Sup. 
 Ct., 1871, Bander v. Lasher, 5 Lans. 335. 
 
 *» 731. Disqualification of juror. In the ab- 
 sence of proof that injustice has been done, a 
 verdict should not be set aside on the ground 
 39 
 
 that one of the jurors was disqualified by con- 
 sanguinity to a party ; that objection not af- 
 fecting the jurisdiction of the court, and being 
 waived if not taken by way of challenge. Sup. 
 Ct. Sp. T., .1873, Hayes v. Thompson, 15 Abb. N. 
 S. 220. 
 
 732. Error. A defendant who has appeared 
 and litigated an action, cannot, after judgment 
 entered against him, move to set it aside on the 
 ground that the action cannot be maintained. 
 That question is not jurisdictional, but one to 
 be determined by the court in rendering its 
 j udgment, and error in its decision can be cor- 
 rected only in some one of the modes of review 
 provided by law. Com. App., 1871, Fisher v. 
 Hepburn, 48 N. Y. (3 Sick.) 41. 
 
 733. Where it appears, upon a motion to set 
 aside a judgment, that it was obtained in part 
 upon a demand for which the defendant had 
 given his notes, on a settlement, which were 
 not yet due, a question of law for trial is pre- 
 sented, and the court will not, at Special Term, 
 try the question on affidavits. Sup. Ct., 1870, 
 Roieles v. Hoare, 61 Barb. 266. 
 
 734. Fraud. Every court of record has 
 power, unless restrained by positive enactment, 
 to vacate its judgments when it is established 
 that they were obtained by fraud. Sup. Ct., 
 1871, Denton v. Dentoti, 41 How. 221. 
 
 735. Where a husband has procured a judg- 
 ment for divorce, in an action commenced by 
 service by publication, by fraud, and especially 
 where he conspired with the woman he subse- 
 quently married to impose upon the court, and 
 thereby obtained a judgment which would not 
 have been ordered had the whole truth been 
 disclosed, the court has power, notwithstanding 
 the prohibition of sec. 135 of the Code, and 
 should set aside such judgment, and permit the 
 injured party to come in and defend. lb. 
 
 736. Injustice. In an action upon a bond 
 given by a special guardian in proceedings in 
 the Supreme Court for the sale of an infant's 
 lands, that court has doubtless control over the 
 proceedings and jurisdiction over the defendant 
 as special guardian ; and, if the verdict against 
 him does him any injustice, may, on a proper 
 application and upon proper terms, still allow 
 him to fulfil his duty as sucli guardian and 
 make a report of the sale and of his disposition 
 of the proceeds ; but it will make no intendment 
 in his favor while he remains practically in con- 
 tempt for a disobedience of its orders. Sup. Ct., 
 1873, Hunt V. Hunt, 66 Barb. 577. 
 
 737. lusuflEcient damages. The proper 
 remedy for a party in whose favor a judgment 
 has been rendered for inadequate damages, is, as 
 in case of excessive damages, by motion for a 
 new trial, made either on the judge's minutes 
 or at the Special Term, and not by appeal. 
 Sup. Ct., 1875, Carpenter v. Beare, 4 Hun, 509. 
 
 738. ^regularity. Where three defendants, 
 sued as former copartners upon a partnership 
 debt, appeared by the same attorneys and put 
 in a joint answer, and before a trial of the is- 
 sues two of them compromised and settled their 
 proportion of the joint liability, and one of their 
 attorneys died, — Held, that a notice of trial in 
 the ordinary form served on their surviving at- 
 torney, with a notice indorsed on the back 
 thereof, that no personal claim would be made 
 against the defendants who had compromised, 
 but judgment would be demanded only against 
 the other defendant for the amount for which 
 he might be liable, is regular as to all the de- 
 fendants, and a verdict and judgment against 
 all the defendants upon the trial under such no- 
 
610 
 
 PRACTICE. 
 
 tice, without objection except in behalf of the 
 defendants who have compromised, will be held 
 regular, and will not be set aside on motion of 
 the other defendant. Sup. Ct. Sp. T., 1873, Sax- 
 ton V. Dodge, 46 How. 467. 
 
 739. Such verdict and judgment are not taken 
 by default as against any of the defendants, 
 and a motion by the defendant who had not 
 compromised to set them aside for irregularity, 
 made more than one year after notice of the 
 judgment, comes too late. lb. 
 
 740. If, in an action by several plaintiffs, the 
 defendant recovers a verdict against four of the 
 plaintiffs, and enters judgment for costs against 
 only two of them, they cannot, on motion, set 
 aside tlie judgment for irregularity on that 
 ground ; but their proper course, if they wish 
 to compel the defendant to enter such judgment 
 against the four defendants, is to apply to the 
 court for that relief. Sup. Ct., 1871, Knowtton v. 
 Pkrce, 41 How. 361. 
 
 741. A judgment will not be set aside merely 
 because the plaintiff proceeded to tax the costs 
 and have them entered, without moving the 
 court for an order therefor in conformity to the 
 established practice, where it appears that he 
 was clearly entitled to costs. Sup. Ct., 1873, 
 Hees v. Nellis, 65 Barb. 440. 
 
 742. A. neglect to serve oopies of the amended 
 complaint in a foreclosure case upon infant de- 
 fendants, is, at least, a great irregularity ; but 
 tlie judgment will not be disturbed on that 
 ground after much time has elapsed, and many 
 innocent parties have become interested in the 
 premises. Sup. Ct. Sp. T., 1870, McMurray v. 
 McMurray, 41 How. 41 ; S. C, 9 Abb. N. S. 315; 
 60 Barb. 117. 
 
 743. Want of guardian ad litem. A judg- 
 ment of foreclosure may be set aside on mo- 
 tion, as a matter of right, for the failure to have 
 a guardian ad litem appointed for infant defend- 
 ants, if they move therefor without unreason- 
 able delay. lb. 
 
 744. Where such infant defendants delay to 
 move for four, seven and nine years respective- 
 ly, after they become of age, the judgment 
 ought not to be set aside for that cause, to the 
 prejudice of innocent parties: In such a case, 
 the motion may be denied without prejudice to 
 the riglit of the moving parties to bring an ac- 
 tion of ejectment or an action to redeem, in or- 
 der to test their right to set aside the judgment 
 as being absolutely void. lb. 
 
 745. Against trustees. On a motion to open 
 a judgment, the court will not on affidavits try 
 the merits of a question involving the owner- 
 ship of trust property. As against trustees, the 
 courts are never disposed to deprive benefi- 
 ciaries of their right to be heard. Sup. Ct., 1875, 
 Dinsmore v. Adams, 49 How. 238 ; S. C, 5 Hun, 
 149. 
 
 746. A judgment may be opened in such a 
 case, notwithstanding the lapse of more than 
 one year; the equity power of the court to 
 grant relief in proper cases being above and be- 
 yond the Code. lb. 
 
 747. Void judgment. Where, after the en- 
 try of judgment sufficient facts are disclosed to 
 authorize the court to assume that the defend- 
 ant was dead before the suit was commenced, 
 and that consequently the judgment is void, it 
 may be set aside on motion of an heir-at-law of 
 the defendant, having an interest in his real es- 
 tate upon which it is an apparent lien or cloud. 
 Sup. Ct. Sp. T., 1871, Btodget v. Btodget, 42 
 How. 19. 
 
 748. Such a motion can be made, after the 
 
 death of the plaintiff, without substituting his 
 personal representatives, it not being a proceed- 
 ing in a pending action. lb. 
 
 3. Satisfaction and discharge. 
 
 749. By attorney. An attorney is not au- 
 thorized by his retainer to satisfy a judgment 
 without payment in full ; and, though he may 
 hold the judgment by assignment, as security 
 for his counsel-fees, his satisfaction will be ef- 
 fectual to the extent of his interest only. Ct. 
 App., 1871, Beers v. Hendrickson, 45 N. Y. (6 
 Hand,) 665 ; Aff'g S. C, 6 Bob. 53. 
 
 750. An assignment of a judgment carries 
 with it the claim on which it is founded, so that 
 where it is ordered to stand as security for a 
 subsequent recovery on tlie defendant's being 
 let in to defend, the assignee has tlie like inter- 
 est in such recovery as in the original judg- 
 ment, and may discharge with like effect. lb. 
 
 751. By president of corporation. Al- 
 though ordinarily a satisfaction piece executed 
 by an agent must purport on its face to be ex- 
 ecuted in the name of the principal, in order to 
 authorize the cancellation of the docket, yet 
 such an instrument for the satisfaction of a 
 judgment in favor of a corporation, wliicli 
 shows on its face that it was executed by the 
 president of the corporation in his official ca- 
 pacity, is binding on the corporation, although 
 not in its name or under its seal. Ct. App., 1872, 
 Booth V. Farmers and Mechanics Nat. Bank, 60 
 N. T. (5 Sick.) 396 ; Eev'g S. C, 4 Lans. 301. 
 
 752. A mistake in some particular in the de- 
 scription of the judgment therein does not af- 
 fect the validity of the satisfaction piece, if it 
 otherwise correctly and sufficiently describes 
 and id entifi es it. lb. 
 
 753. 'WTiat operates as. A mortgage given 
 by a judgment debtor and his wife for a sum 
 less than the judgment, in pursuance of a prom- 
 ise by the judgment creditor to accept the 
 mortgage of the debtor for that amount in full 
 satisfaction of the judgment, the wife's release of 
 dower not being specially mentioned, forms no 
 consideration for such promise, and will not, 
 even when paid, operate as a satisfaction. Com. 
 App., 1872, Baker v. Alger, 51 N. T. (6 Sick.) 625. 
 
 754. The execution of an acknowledgment of 
 satisfaction of a judgment and acknowledging 
 tlie same as required by statute, are acts of equal 
 deliberation and solemnity as the execution of 
 an instrument under seal ; and they will operate 
 to discharge the judgment though given upon 
 payment of a part only. Ct. App., 1871, Beers v. 
 Hendrickson, 45 N. T. (6 Hand,) 665 ; Aff'g S. C, 
 6 Rob. 53. 
 
 755. Although it is irregular to include in a 
 judgment of affirmance on appeal, the amount of 
 the judgment of the court below, yet, where a 
 judgment is entered in that form, a payment or 
 valid satisfaction of such judgment will operate 
 as a satisfaction as well of the judgment below. 
 Ct. App., 1871, Beers v. Hendrickson, 45 N. Y. (6 
 Hand,) 665. Overruling on this point, S. C, 6 
 Rob. 53. 
 
 756. If a creditor gives his debtor, who is im- 
 prisoned on execution, permission to go at large, 
 beyond the jail or its liberties, the judgment is 
 thereby absolutely discharged; and this is so 
 even though the debtor agrees that it shall not 
 have that effect, and that the plaintiff may re- 
 arrest him on another execution, in case he does 
 not pay the judgment. Sup. Ct., 1871, Bonesteel 
 V. Garlinghouse, 60 Barb. 888. 
 
 757. A judgment debtor who has been released 
 
rRACTICE. 
 
 611 
 
 from imprisonment on execution bj'his creditor, 
 is entitled to have the judgment discharged of 
 record nn liis motion. lb. 
 
 758. Where land is gold on execution and the 
 execution is returned satisfied, that operates as 
 a satisfaction of the judgment, although the plain- 
 tifif gave credit to the purchaser, and the latter 
 never performed his obligation. Ct. App., 1875, 
 Driggs v. Simson, 60 N. Y. (15 Sick.) 641. 
 
 7.59. Cancellation of docket. An entry 
 made by the clerk in the docket book, after the 
 filing of a satisfaction piece, opposite the judg- 
 ment and in the column headed " when satisfied," 
 in tlie brief form " April 11th, 1864, S. P." is, un- 
 der long continued and uniform practice of can- 
 celling by memoranda on the docket, a sufficient 
 cancellation. Sup. Ct., 1871, Booth t. Farmers 
 and Mechanics Nat. Bank, 4 Lans. 301 ; Aff'd, S. 
 C, 50 N. Y. (6 Sick.) 396. 
 
 760. In making entries on the docket the clerk 
 acts ministerially, and if lie cancels the docket 
 without the proper evidence of satisfaction re- 
 quired by law, the parties are not bound there- 
 by, lb. 
 
 761. Effect of. The formal satisfaction of a 
 judgment without payment does not operate as 
 a discharge or release of tlie debt, unless so in- 
 tended by the parties. Com. App., 1874, Claflin 
 
 V. Ostrom, 64 N. Y. (9 Sick.) 581. 
 
 762. Decision of motion for. Where, upon 
 a motion to cancel and satisfy a judgment of re- 
 cord, on the ground that it has been fully paid, 
 it appears that, at least, a part of the judgment 
 was paid about the time of its entry, and that the 
 
 , plaintiff did not issue execution tor the balance 
 claimed until 10 years afterward, and then with- 
 out leave of court, and the evidence as to pay- 
 ment in full is conflicting, though preponderating 
 in favor of the defendant, the court will allow 
 the plaintiff to sue the judgment over, and where 
 but a small amount is claimed will direct the 
 suit to be in justice's court. Sup. Ct. Sp. T., 
 1875, Montrait v. Hutchins, 49 How. 105. 
 
 763. Vacating satisfaction. A satisfaction 
 of a judgment in favor of two former co-part- 
 ners, entered by one of them in fraud of the 
 rights of the other, may be vacated as against 
 the latter, upon his application, and suffered to 
 stand as against the former ; and an order to 
 that effect will leave the latter party the sole re- 
 maining partv in interest. Sup. Ct., 1870, Hackett 
 T. Belden, 10 Abb. N. S. 123. 
 
 VI. EXECtTTION ; SnPPLEMENTAET PEOOIipDINGS, 
 
 764. Issuing after five years. The pro- 
 visions of sees. 283, 284, of the Code, limiting 
 the time for issuing execution, as of course, to 
 five years from the entry of judgment, apply 
 only to cases where the right to issue it during 
 that time continues. If the judgment of the Spe- 
 cial Term is reversed by the General Term, but 
 affirmed by the Court'of Appeals, an execution 
 may Lssue without leave of court at any time 
 within five years after the entry of judgment on 
 the remittitur from the latter court. Ct. App., 
 1874, Underwood v. Green, 56 N. Y. (11 Sick.) 
 247 ; Aff'g S. C, 36 N. Y. Supr. (4 J. & Sp.) 481. 
 
 765. Leave to issue execution after five years 
 may properly be refused, where it appears the 
 judgment was obtained by default as upon a 
 simple contract debt, after service of a summons 
 for the recovery of money only, without tlie 
 complaint, and ^lat the defendant was afterward 
 discharged under the U. S. bankrupt act, even 
 though the complaint in such action alleged fraud 
 in contracting the debt. The plaintiff's right of 
 
 action for, or remedy by reason of the fraud, in 
 such a case, is merged in the judgment. Ct. 
 App., 1873, Shuman v. Strauss, 62 N. T. (7 Sick.) 
 404 i Aff'g S. C, 34 N. Y. Supr. (2 J. & Sp.) 6. 
 
 766. Whether, under the provisions of tlie U. 
 S. Bankrupt Act of 1867, a judgment creditor can 
 be permitted to go behind his j udgment and show 
 that the debt for which It was recovered was 
 created by the fraud of the debtor, andtlierefore 
 not discharged, and have execution upon it, 
 query ? lb. 
 
 767. Such a case Is not a proper one for the 
 determination of the questions of fact and of law 
 involved, upon a summary application, but the 
 proper remedy of the plaintiff would be by appli- 
 cation under sec. 71 of the Code, for leave to 
 bring an action on the judgment. lb. 
 
 768. — pending appeal. Where execution 
 has been stayed by an appeal, and an order 
 granted dismissing such appeal unless a condi- 
 tion specified is performed by a day certain, ex- 
 ecution cannot issue until the dismissal is per- 
 fected by the entry of a further order, upon at 
 least ex parte proof that the condition has not 
 been performed. N. Y. C. P., 1873, Stewart v. 
 fierce, 4 Daly, 477. . 
 
 769. Second execution. The institution and 
 pendency of proceedings supplementary to exe- 
 cution, form no bar to the issue of a second exe- 
 cution upon the same judgment, after tlie lapse 
 of five years, upon application made and due 
 proof presented to the court. N. Y. C. P., 1870, 
 Smith V. Mahoney, 3 Daly, 285. 
 
 770. Setting aside execution. On a mo- 
 tion to set aside an execution, because issued 
 without leave of court, more than five years 
 from the entry of judgment, the notice of ino- 
 tion or order to show cause must specify the ir- 
 regularity complained of. It is not sufficient to 
 state it in the affidavits. Sup. Ct. Sp. T., 1875, 
 Montrait v. Hutchins, 49 How. 105. 
 
 771. If an execution be issued against the per- 
 son of a defendant, who had been previously 
 arrested, in an action where the fa^s on which 
 the order of arrest was granted are identical with 
 those constituting the cause of action, and were 
 set out in the complaint but not proved on tlie 
 trial, it will be set aside on motion of the defend- 
 ant, even though he did not move before the trial 
 to set aside the order. Ct. App., 1871, Elwood v. 
 Gardner, 10 Abb. N. S. 238; S. C, 45 N. Y. (6 
 Hand,) 349. 
 
 772. In a case commenced by summons for 
 relief, where the complaint alleges a contract to 
 pay money, and also fraud on the defendant's 
 part in making the contract, and demaixds judg- 
 ment for damages sustained by reason of the 
 fraud in excess of the face of the contract, the 
 action sounds in tort and not in contract, the 
 averment of the contract being mere matter of 
 inducement ; and the defendant is not bound to 
 move to vacate the arrest before trial, nor can 
 the plaintiff by abandoning at the trial his aver- 
 ment of fraud, and obtaining judgment on proof 
 of the contract alone, preclude tlie defendant 
 from afterward moving to set aside an execu- 
 tion against his person. lb. 
 
 77S. Compelling sheriff to pay over. 
 When an adverse claim is made against a sheriff 
 for money in his hands, and there is any doubt 
 upon the question, the court will usually, for the 
 protection of the officer, refuse to compel him to 
 decide the controversy at his own risk. Ct. App., 
 1873, Mills V. Davis, 53 N. Y. (8 Sick.) 349 ; 
 Aff's S. C, 35 N. Y. Supr. (3 J. & Sp.) 355. 
 
 774. Thus, wliere a sheriff who h,",s collected 
 money sufficient to satisfy an execution in his 
 
612 
 
 PRACTICE. 
 
 hands, by levy and sale of property under it, is 
 enjoined by the U. S. District Court in proceed- 
 ings in bankruptcy against the execution debtor, 
 from making any transfer or disposition of the 
 debtor's property, the court will not, on motion 
 of the execution plaintiff, grant an order abso- 
 lutely forcing him to pay over such money. lb. 
 776. Supplementary proceedings. No 
 proceedings supplementary can be based upon a 
 return of the city marshal to an execution issued 
 out of a district court. N. Y. C. P. Sp. T., 1869, 
 Muldoumey v. Carney, 3 Daly, 170. 
 
 776. It is only upon judgments in personam 
 that supplementary proceedings are authorized 
 by the Code. Sup. Ct., 1874, Bartlett v. McNeil, 
 3 Hun, 221. 
 
 777. In an action against a non-resident for a 
 tort, where the summons was served by publica- 
 tion and judgment perfected without an appear- 
 ance by defendant, such judgment is not in per- 
 sonam, and proceedings supplementary to exe- 
 cution cannot be instituted against the defend- 
 ant, under sec. 292, of the Code, to compel him 
 to submit to an examination concerning his 
 property ; nor can he be arrested for a re- 
 fusal to apply property 'in satisfaction of the 
 judgment. Ct. App., 1875, Bartlett t. McNeil, 
 60 N. Y. (15 Sick.) 53 ; AfE'g S. C, 3 Hun, 221 ; 
 49 How. 55. 
 
 778. Against infant. The provisions of the 
 Code authorizing supplementary proceedings on 
 the return unsatisfied of an execution against 
 the property of the judgment debtor, apply to 
 the case of an infant judgment debtor as well as 
 any other. N. Y. Supr. Ct. Chambers, 1875, 
 Lederer v. Ehrenfeld, 49 How. 403. 
 
 779. In such proceedings the regularity of the 
 . judgment cannot be questioned. lb. 
 
 780. Against resident debtor. A pro- 
 ceeding under subd. 2, sec. 292, of the Code 
 to compel the appropriation of property unjustly 
 witliheld by the debtor to the satisfaction of the 
 judgment against him, is authorized only when 
 the judgment debtor resides in the same county 
 with the officer ; and where the affidavit, upon 
 which an order is obtained under that subdivis- 
 ion, shows that the debtor resides out of the 
 State, although lie has a place of business here, 
 tlie officer gets no jurisdiction, even though the 
 defendant appears without objection, and can- 
 not punisli him for contempt in disobeying his 
 order. N. Y. C. P., Driggs v. Smith, 47 How. 215. 
 
 781. What may be reached by. Supple- 
 mentary proceedings against a defendant who 
 has no property, to have his earnings applied on 
 the plaintiff's judgment, will be discharged 
 when it appears that the amount thereof is not 
 more tlian sufficient for the support of the debtor 
 and his family. N. Y. C. P. Sp. T., 1875, Cum- 
 mings v. Timberman, 49 How. 236. 
 
 782. An interest in a patent may be reached 
 by proceedings supplementary to execution, 
 and, if necessary, the court may direct an assign- 
 ment to be made. Sup. Ct., 1875, Barnes v. 
 Morgan, 3 Hun, 703. 
 
 783. Proceedings against debtor of judg- 
 ment debtor. It is not necessary in order to 
 confer jurisdiction upon a judge to issue an 
 order requiring a person Indebted to the judg- 
 ment debtor to appear and be examined, upon 
 an application made on the affidavit of an attor- 
 ney, that such attorney should swear to or prove 
 his authority to act Ct. App., 1873, Miller v. 
 Adams, 52 N. Y. ( 7 Sick.) 409 ; AfE'g S. C, 7 
 Lans. 131. 
 
 784. An affidavit thit such person has proper- 
 ty of the judgment debtor in his hands or is in- 
 
 debted to him, as the deponent is advised and 
 believes, is sufficient to confer jurisdiction to 
 grant the order, without any positive proof of 
 those facts being furnished. lb. 
 
 785. Such an affidavit, it seems, meets all the 
 requirements of sec. 294, of the Code, and would 
 sustain the order on a direct application to set 
 it aside. Per GsorER, J. lb. 
 
 786. In order to authorize the issuing of an 
 attachment for the arrest of the person so order- 
 ed to appear, for disobedience of the order, no 
 proof of his failure to appear is necessary, be- 
 cause the judge has judicial knowledge of the 
 fact. lb. 
 
 787. An order that a third person pay over 
 moneys to the creditor on supplementary pro- 
 ceedings, under sec. 297 of the Code, is author- 
 ized only when the title of the judgment debtor 
 is undisputed. If any other party claims an 
 adverse interest in the property, the question 
 must be settled in an action by a receiver to be 
 appointed. Ct. App., 1874, Barnard v. Kobbe, 54 
 N. Y. (9 Sick.) 516; Aff'g S. C, 3 Daly, 372. S. 
 P., West Side Bank v. Pugsley, 12 Abb. N. S. 28 ; 
 47N. Y. (2Sick.)368. 
 
 788. After judgment against an assignee in 
 bankruptisy, a State court cannot make an order, 
 under sec. 294 of tlie Code, requiring a national 
 bank with which such assignee has deposited 
 money belonging to the estate of the bankrupt, 
 to pay the same over to the judgment creditor. 
 Sup. Ct., 1875, Havens v. National City Bank of 
 Brooklyn, 4 Hun, 131. 
 
 789. Vacating order for third party to 
 pay over. An order that a third party pay 
 over to the judgment creditor a sum of money 
 due from him to the judgment debtor, should be 
 vacated on his application, when it appears that 
 the judgment debtor had, prior to the making 
 of the order, absolutely assigned all his interest 
 in the claim. Sup. Ct., 1874, Beebe v. Kenyon, 3 
 Hun, 73. 
 
 790. The question of the validity and good 
 faith of the assignment cannot be tried on such 
 application. That can be done only in an action 
 by a receiver. lb. 
 
 791. Punishment for contempt. A judg- 
 ment debtor against whom supplementary pro- 
 ceedings have been commenced, has no right to 
 transfer property liable to execution, such as a 
 watch, to his attorney for fees in such proceed- 
 ings, in violation of the order of the court, the 
 creditor's Hen being prior to that of the attor- 
 ney's. • If he does so, he may be punished as for 
 contempt. Sup. Ct., 1873, Deposit Nat. Bank v. 
 
 Wickham, 44 How. 421. 
 
 792. A stay of proceedings until the decis- 
 ion of a motion to set aside a judgment and 
 grant a new trial, merely suspends supplemen- 
 tary proceedings then pending on such judg- 
 ment, but an injunction obtained in such pro- 
 ceedings still remains in force, notwithstanding 
 the negtect of the judgment creditor to appear 
 on the day to which the proceedings have been 
 adjourned and have them again adjourned ; and 
 even though the Special Term grants a new trial, 
 if its order is reversed by the General Term, a 
 conveyance of his property in the meantime is 
 a violation of the injunction, and renders the 
 debtor liable for a contempt. N. Y. Supr. Ct., 
 1873, FTooi/v. Jacobs, 86 N. Y. Supr. (4 J. & Sp.) 
 408. 
 
 '793. 'When terminated. If after the exam- 
 ination of the judgment debtorj no adjournment 
 is had or further notice of examination given to 
 him, the proceedings are terminated, no express 
 order for that purpose being necessary, and a 
 
PRACTICE. 
 
 613 
 
 witness cannot afterward be compelled to attend 
 and testify. N. Y. C. P. Sp. T., 1874, Thomas v. 
 Kircher, 15 Abb. N. S. 342. 
 
 794. Receiver. A receiver cannot be ap- 
 pointed in supplementary proceedings, unless 
 upon an order for the examination of the judg- 
 ment debtor, after tlie return of an execution 
 unsatisfied. N. Y. Supr. Ct., 1876, Holbrook v. 
 Orgler, 49 How. 289. 
 
 795. The appointment of a receiver upon the 
 examination of a third party under sec. 294 of 
 the Code, before an execution has been returned 
 unsatisfied, is invalid, and confers no power 
 upon the receiver to sue as such. lb. 
 
 796. In supplementary proceedings under the 
 Code, a receiver may be appointed of the prop- 
 erty of the judgment debtor generally, but not 
 of a particular debt or debts, or of a specified 
 portion of his property. Sup. Ct. Sp. T., 1869, 
 Andrews v. Glenville Woollen Co., 11 Abb. N. S. 
 78. 
 
 797. A receiver cannot be appointed under sec. 
 298, without notice to the judgment debtor. lb. 
 
 798. Such a receiver is not the proper party to 
 bring suit for the collection of debts due to the 
 defendant which have been duly attached, but 
 the same should be sued by the sheriff or the 
 attaching creditors. lb. 
 
 799. A receiver may be appointed in proceed- 
 ings supplementary to execution, with a view to 
 reaching a debtor's interest in mortgaged 
 chattels, the title to which has vested absolutely 
 through failure of the condition, by a suit in 
 equity to redeem. N. Y. C. P., 1870, Bunacteuqh 
 V. Poolman, 3 Daly, 236. 
 
 800. Title to debtor's property. An order, 
 made in supplementary proceedings, appointing 
 a receiver, without any express limitation of his 
 powers or exception of any property from its 
 effect, is, nevertheless, limited by the statute 
 exempting certain property from execution, and 
 conveys no title to such property ; and if he 
 talces or interferes with such property he does 
 so at his periL N. Y. Supr. Ct., 1871, Firmin v. 
 Malloy, 33 N. Y. Supr. (1 J. & Sp.) 382. 
 
 801. Action by. It is irregular for a rfr 
 ceiver appointed in supplementary proceedings 
 to employ the attorney of the judgmentcreditor 
 as his own attorney in an action by him as sucli 
 receiver. Sup. Ct. Sp. T., 1875, Branch v. Har- 
 rington, 49 How. 196. 
 
 802. Where a vendor of goods, instead of dis- 
 affirming the contract for fraud and endeavoring 
 to recover the property sold, sues for the pur- 
 chase-price and recovers judgment therefor, a 
 receiver appointed in proceedings supplementary 
 to such judgment, cannot allege such fraud for 
 the purpose of defeating an assignment made by 
 the vendee for the benefit of creditors, altliough 
 tlie assignee may have taken with full knowl- 
 edge and in furtherance of the fraud. Com. 
 App., 1872, Kennedy v. Thorp, 51 N. Y. (6 Sick.) 
 174 ; Rev'g 2 Daly, 258. 
 
 803. Release of property by. The county 
 court has jurisdiction, in proceedings supple- 
 mentary to execution upon a judgment docketed 
 therein, to direct a receiver appointed by it to 
 release to the debtor a judgment recovered by 
 him for an unlawful seizure and sale of exempt 
 property. Com. App., 1872, Tillotson v. Wolcott, 
 48 N. Y. (2 Sick.) 188. 
 
 Vn. Pbovisional eemedibs. 
 
 1. Arrest and bail. 
 
 804. Two causes of action united, ^n 
 
 order of arrest should not be granted in an 
 action wherein several causes of action are 
 united, unless there is a right to arrest for either 
 of those causes. Sup. Ct., 1874, Taffey v. Wit- 
 Hams, 3 Hun, 217. S. P., Bowen v. True, 53 N. Y. 
 (8 Sick.) 640 ; Mason v. Lambert, 3 Daly, 250. 
 
 805. Conspiracy. In an action to recover 
 damages sustained by reason of a fraudulent 
 conspiracy to deprive the plaintiff of property 
 through a judicial sale, the defendant may be 
 arrested and held to bail. Sup. Ct., 1875, Bruce 
 V. Kelly, 5 Hun, 229. 
 
 806. Where several persons confederate to- 
 gether to fraudulently obtain and divide among 
 themselves a large amount of public moneys, 
 the law imposes upon each a liability coexten- 
 sive with the money so abstracted, although 
 others may have received a portion of it ; and 
 each wrong-doer may be proceeded against by 
 seizure of his property and arrest of his person, 
 until actual satisfaction of tlie demand is secur- 
 ed, or a joint action may be brouglit against all. 
 Sup. Ct., 1875, People v. Tweed, 5 Hun, 382. 
 
 807. Conversion. Brokers employed to 
 purchase bonds and hold them as a special de- 
 posit, are liable to arrest in an action for the 
 conversion thereof. Sup. Ct., 1875, Lambertson 
 V. Van Boskerk, 49 How. 266 ; S. C, 4 Hun, 628. 
 
 808. Such purchase being a distiuct transac- 
 tion, the fact that there is an account current 
 between the parties is no ground for vacating 
 such order. lb. 
 
 809. Neither is the payment and receipt of 
 part of the claim for the value of the bonds, 
 ground for vacating it. That operates only in 
 mitigation of damages. lb. 
 
 810. Under a receipt given by a broker for 
 government bonds, describing them by their 
 numbers and amounts, and stating, "Tliese 
 bonds we hold subject to the order of J S P, at 
 10 days' notice, agreeing to collect the coupons 
 for his account free of charge, and to allow him 
 two per cent, per annum interest on the par 
 value of said bonds," &e., the broker is bound 
 to protect the bonds, and to return the same 
 bonds received by him, on 10 days' notice ; and 
 his refusal to do so will be a conversion, for 
 which he will be liable and may be arrested. 
 Sup. Ct., 1873, Palmer v. Hussey, 65 Barb. 278. 
 
 811. — in another State. A banker who 
 receives a remittance from his correspondent, 
 with instructions to send a draft for the amount 
 to third parties, and acknowledges its receipt 
 agreeing to obey such instructions, holds such 
 funds in a fiduciary capacity, and is liable to 
 arrest if he appropriates them to his own use, 
 even though the conversion took place in another 
 State of which the parties are residents. Sup. 
 Ct. Sp. T., 1871, Johnson v. Whitman, 10 Abb. 
 N. S. 111. 
 
 812. — by officer. A county treasurer is a 
 public officer, and moneys received by him for 
 State taxes are received by him in a fiduciary 
 capacity as such officer, and not merely as agent 
 of the county to pay tliem over to the State ; 
 and in an action by the Slate for the conversion 
 of such moneys, and perhaps in any action for 
 monevs received by him, he may be arrested. 
 Sup. Ct. Sp. T., 1873, People v. Clark, 45 How. 
 12. 
 
 813. Such an arrest may be made in a caso 
 where the complaint seeks to recover interest as 
 well as the money received, the claim for interest 
 not being a second cause of action. lb. 
 
 814. False representations. Where a sale 
 upon credit is made upon the strength of several 
 representations on the part of the vendee, it is 
 
614 
 
 PRACTICE. 
 
 sufficient to sustain an order of arrest, that 
 only one of suoli representations, if of a cliar- 
 acter to liave materially influenced the giving 
 of the credit, was false and made with intent to 
 deceive. N. Y. Supr. Ct., 1870, Wannemacher v. 
 Davis, 2 Sweeny, 272. 
 
 815. Fraud. An order of arrest cannot prop- 
 erly issue in an action commenced by summons 
 for a money demand on contract, on affidavits 
 showing, nut that the indebtedness was con- 
 tracted or incurred by means of fraudulent 
 representations, but merely that the plaintifF 
 was induced to delay selling collateral securities 
 in his liands belonging to the defendant, by 
 fraudulent representations made by the latter, 
 after the debt was incurred, and that a deficiency 
 was caused by such delay. N. Y. Supr. Ct., 
 1871, Wheeler v. Frenche, 33 N. Y. Supr. (IJ. & 
 Sp.) 63. 
 
 816. Ad order of arrest sustained, in a case 
 where the defendant purchased goods on a 
 credit of 30 days, and within that time claimed 
 to have become insolvent, furnishing no explan- 
 ation of the fact; those circumstances being 
 sufficient evidence of a fraudulent contracting 
 of the debt, within the meaning of sec. 179 of 
 the Code. Sup. Ct. Sp. T., 1871, Dale v. Jacobs, 
 41 How. 94 ; S. C, 10 Abb. N. S. 382. • 
 
 817. Where by mistake, certificates of stock, 
 intended for one person, are sent to and received 
 by another person of the same name, and he 
 fraudulently transfers them to a third person, an 
 action for fraud and deceit may be maintained 
 against him by any subsequent purcliaser in 
 good faith and for value who may be injured 
 thereby, and in such action lie may be arrested. 
 N. Y. Supr. Ct , 1870, Paris v. Peek, 10 Abb. 
 N. S. 55 ; S. C, 2 Sweeny, 689. 
 
 818. The fraud necessary to justify an order 
 of arrest under sec. 179 of tlie Code, is a moral 
 aii<l actual fraud, implying personal misconduct, 
 ami not merely a legal or constructive fraud. 
 Accordingly, — Held, that a principal could not 
 be arrested for the fraudulent representations of 
 liis agent, made in the contract sued upon, where 
 lie neither authorized nor ratified them. Ct. 
 App., 1873, Hathaway v. Johnson, 65 N. Y. (10 
 Sick.) 93. 
 
 819. In action on judgment. An order of 
 arrest cannot be sustained in an action upon a 
 judgment obtained in another State, in part for 
 money loaned and in part for the price of prop- 
 erty which the defendant induced the plaintiff 
 to sell to him by means of false and fraudulent 
 representations. Sup. Ct., 1874, Goodale v. Finn, 
 2 Hun, 151. 
 
 820. Money received ■ in fiduciary ca- 
 pacity. In an action upon an acceptance of a 
 draft, an order of arrest cannot be sustained 
 upon affidavits showing that tlie plaintiffs have 
 a cause of action, for the wrongful application 
 of Tnoney collected by the defendants in a fidu- 
 ciary capacity, which was to have been applied 
 in payment of such draft. Ct. App., 1873, Far- 
 mers ^ Mech. National Bank v. Sprague, 52 N. 
 Y. (7 Sick.) 605. 
 
 821. Wiiere a draft upon the consignee of 
 gooils was discounted upon the security of the 
 carrier's receipts therefor, which, on acceptance 
 by him of the draft, were delivered over to him, 
 upon Ills agreement to apply the first proceeds 
 of the property, when sold, to the payment of 
 the draft, and to pay all freight charges and ex- 
 penses thereon without recourse to the partj^ 
 discounting, — Held, that this did not create be- 
 tween them a fiduciary relation, so as to a.uthor- 
 ize the arrest of such consignee in an action on 
 
 the acceptance. Ct. App., 1873, German Bank 
 V. Edwards, 53 N. Y. (8 Sick.) 541. 
 
 822. A complaint which alleges that " at vari- 
 ous dates the plaintiiJ deposited with the de- 
 fendants, as its bankers, various sums of money, 
 which said deposits," on the last date mentioned, 
 after deducting all credits due said defendants, 
 amounted to a specified sum, leaving them, on 
 that day, " indebted to the plaintiff in the afore- 
 said sum and interest," and that plaintiff had 
 since demanded payment, which defendants had 
 refused, does not show that the indebtedness 
 sued for, was money received in a "fiduciary 
 capacity," so as to entitle the plaintiff to an 
 order of arrest. Sup. Ct., 1874, Buchanan Farm 
 Oil Co. V. Woodman, 1 Hun, 639. 
 
 823. A cause of action for a fraudulent con- 
 spiracy between the defendants and the plain- 
 tiff's treasurer, to get possession of the plaintiff's 
 money so that such treasurer could use it for his 
 own speculations, is inconsistent with the cause 
 of action set out in such complaint, and an order 
 of arrest cannot be sustained in such action upon 
 affidavits alleging a fraudulent conspiracy, al- 
 though a complaint setting it forth as the cause 
 of action would present a case in which an ar- 
 rest would be proper. lb. 
 
 824. Injury to property. The word " prop- 
 erty," as used in subd. 1 of sec. 179 of the Code, 
 applies only to personal property; and an order 
 of arrest granted in an action for injuring real 
 property, such as one for obstructing a water 
 course, caimot be sustained. Sup. Ct. Sp. T., 
 1875, Griswoldv. Sweet, 49 How. 171. 
 
 825. Libel. Under sec. 179 of the Code, an 
 order of arrest inay be granted, without proof of 
 the non-residence of the defendant, or that he is 
 about to depart from the jurisdiction. Tlie Code 
 modifies the practice In that respect. Brooklyn 
 City Ct. Sp. T., 1872, Britton v. Richards, 13 
 Abb. N. S. 258. 
 
 826. With attachment. The two provision- 
 al remedies, by attachment and by order of ar- 
 rest, are not so inconsistent that tlie allowance 
 of both, in a case falling alike under the head of 
 those wherein the two are respectively allowed, 
 will render both void. Ct. App., 1874, Rockford, 
 R. I. Sr St. Louis R. R. Co. V. Boody, 56 N. Y. 
 (11 Sick.) 456. 
 
 827. Whether, in such a case, a party can. In 
 the discretion of the court, be confined to one of 
 these remedies, query ? lb. 
 
 828. Second arrest. A defendant may be 
 arrested a second time for the same cause in a 
 new action by the same plaintiff, if the plaintiff 
 has been nnl-prossed in the former action, or has 
 discontinued it, and the second arrest is not 
 vexatious. Sup. Ct., 1875, People v. Tweed, 5 
 Hun, 382. 
 
 829. Order, ■who may issue. A county 
 judge has power to issue an order of arrest al- 
 though tlje action in which it is granted is not 
 triable in his county, and the attorney for the 
 moving party does not reside therein. Sup. Ct., 
 1874, Kennedy v. Simmons, 1 Hun, 603. 
 
 830. Affidavit for arrest. An affidavit made 
 by plaintiff's testator before his death, and en- 
 titled in an action he proposed to bring against 
 the present defendant upon the same or similar 
 causes of action, cannot be considered upon a 
 motion for an order of arrest. N. Y. C. P., 1870, 
 Mason V. Lambert, 2 Daly, 250. 
 
 831. An affidavit for an order of arrest under 
 subd. 3, sec. 179 of the Code, on the ground of 
 the concealment of the property sought to be 
 replevied, must state facts from which thc-judge 
 who grants the order may determine that the 
 
PRACTICE. 
 
 615 
 
 intent specified in the statute existed, and must 
 also show that a cause of action exists. Sup. 
 Ct. Sp. T., 1873, Muller v. Perrin, 14 Abb. N. S. 
 95. 
 
 832. In an action for fraudulent representa- 
 tions, an order of arrest should not be granted 
 upon an affidavit setting forth the alleged fraud- 
 ulent representations, and then, without sliow- 
 ing that the defendant knew them to be false, 
 averring merely that the plaintiffs have dis- 
 covered them to be false and fraudulent, leaving 
 the facts from which such conclusion is drawn a 
 matter of conjecture only. N. Y. C. P., 1870, 
 Thm-pe V. Waddingham, 3 Daly, 275. 
 
 833. An affidavit for an arrest, which asserts 
 that the defendant has no property which the 
 plaintiffs can attach, but as they believe he has 
 ample means in his possession to pay the debt, 
 and " is about to leave the State, and remove 
 therefrom with his said property, with intent to 
 defraud these plaintiffs," but does not point out 
 the specific property, or the evidence or circum- 
 stances upon wliich such belief was predicated, 
 is clearly insufficient to sustain an order of ar- 
 rest. N. Y. C. P., 1870, MoUer v. Aznar, 11 Abb. 
 N. S. 233. 
 
 834. It is only such property as may be at- 
 tached that is capable of being removed or dis- 
 posed of with fraudulent intent. lb. 
 
 835. An affidavit for arrest, which shows that 
 the debtor, shortly before the maturity of his 
 indebtedness, sold his property for less than its 
 value to a relative, to be paid for on condition 
 that the latter is successful, and afterward re- 
 fused to exhibit his books of account, is suffi- 
 cient to sustain an order of arrest, under subd. 
 5, sec. 179 of the Code, when those facts are not 
 denied or explained by the defendant. N. Y. 
 Sapr. Ct. Sp. T., 1872, Kern v. Rachow, 12 Abb. 
 N. S. 352 ; S. C, 34 N. Y. Supr. (2 J. & Sp.) 239. 
 
 836. Upon appeal from an order denying a 
 motion to vacate an order of arrest, if the de- 
 fendant, having the opportunity, fails to ex- 
 plain tlie allegations in the affidavits on which 
 the order of arrest was granted, they should be 
 taken most strongly against him. Brooklyn 
 City Ct., 1871, Brooklyn Daily Union v. Haywjrd, 
 11 Abb. N. S. 235. 
 
 837. Althougli it weakens the effect of allega- 
 tions in an affidavit for arrest to state that they 
 are true " to the best of affiant's knowledge and 
 belief," instead of making them direct and posi- 
 tive, yet, if the facts appear to be within the 
 knowledge of the affiant, their force is not 
 wholly destroyed ; and if they are not contra- 
 dicted or explained, and there is enough in them 
 to raise a presumption of a fraud or other cause 
 for an arrest, and to call for an explanation or 
 denial, an order of arrest granted tliereon will 
 be sustained. lb. 
 
 838. Service of order. It is not sufficient to 
 indorse the rule on the original order, but it 
 must also be made upon the copy served on the 
 defendant, otherwise the order of arrest may be 
 vacated for that reason; N. Y. Supr. Ct. Cham- 
 bers, 1875, Dent v. Watkins, 49 How. 275. 
 
 '839. Bail. The nature of the liability of bail, 
 under the Code, seems to be substantially the 
 same as that of special bail under the old prac- 
 tice ; and the same principles as to tlie amount 
 of bail are applicable thereto. Sup. Ct. Sp. 
 T., 1871, People v. Tweed, 13 Abb. N. S. 148. 
 
 840. The general rule is that the probable 
 amount of defendant's liability determines tlie 
 amount of bail ; though, where the amount is 
 very large, it may be proper to modify the rule, 
 yet the amount should not be reduced so as to 
 
 be merely sufficient to secure the presence of 
 the defendant, — So held where the claim was for 
 over 6,000,000, and the bail had been fixed at 
 1,000,000, the sum which appeared by the affi- 
 davits to have been received by the defendant, 
 lb. 
 
 841. The execution referred to in see. 186 of 
 the Code, which allows bail to be given to dis- 
 charge a person from arrest at any time before 
 execution is one against the person. If how- 
 ever, execution against property was intended, 
 the taking of bail after the issuing of an execu- 
 tion against property would simply be an irregu- 
 larity, of which the sureties could not take 
 advantage in an action on the undertaking. 
 Com. App., 1874, Bostwick v. Goetzel, 57 N. Y. 
 (12 Sick.) 582. 
 
 842. Discharge of principal as insolvent. 
 If the papers on which an insolvent was dis- 
 charged from liability to arrest'are not filed in 
 the proper clerk's office within three months after 
 the discharge, as required by ch. 116, Laws of 
 1866, the discharge does not become operative 
 until they are filed, and in tlie meantime the 
 debtor is liable to arrest on execution in an 
 action wlierein he had been previously arrested 
 and given bail, and if not found by the sheriff 
 or surrendered by his bail, tliey are liable on 
 their undertaking. Sup. Ct., 1875, Mills v. Hil- 
 dreth, 5 Hun, 364. 
 
 843. Reduction of bail. Tlie bail required 
 upon an arrest should be sufficient to render it 
 reasonably certain that the defendant can be 
 found to be taken in execution, or, if he cannot 
 be, that his sureties can be compelled to pay the 
 amount of it ; and the latter object can be at- 
 tained only by requiring bail to an amount equal 
 to the probable amount of the judgment ; and 
 when it does not exceed that amount it should 
 not be reduced on application of the defendant. 
 Sup. Ct., 1875, People v. Tweed, 5 Hun, 382. 
 
 844. Upon an application to reduce bail, if the 
 applicant does not deny tlie facts on whicli the 
 order of arrest was granted, a presumption is 
 raised that such facts are true. lb. 
 
 845. On a motion to reduce the amount of 
 bail, in an action for libel, tlie defend.ant sliould 
 show in his moving papers the facts constituting 
 Ills defense or going in mitigation of damages, 
 otherwise the motion will be denied. Brooklyn 
 city Ct., Sp. T., 1872, Britton v. Richards, 13 
 Abb. N. S. 258. 
 
 846. Exoneration. Tlie death of their prin- 
 cipal 66 days after service of summons on his 
 bail in an action to charge them, cannot be 
 pleaded by them in bar of such action, even 
 though such death occurred before the plaintiff 
 had filed a valid complaint. Sup. Ct., 1869, 
 Gauntley v. Wheeler, 4 Lans. 491. 
 
 847. The liability of the bail became fixed at 
 the expiration of 20 days from the time the 
 summons was served on them in the action 
 against them. Whether tlie court could exon- 
 erate them on motion upon the subsequent death 
 of their principal, query ? lb. 
 
 848. It seems that the Code substantially re- 
 enacted the law previously in force in respect to 
 exonerating bail ; but a surrender after suit 
 commenced against the bail cannot be set up by 
 answer to defeat the plaintiff's cause of action, 
 but whatever relief the bail may be entitled to 
 by reason thereof must be applied for and 
 obtained on motion and on notice to the plain- 
 tiff. N. Y. Supr. Ct., 1872, Star Fire Ins. Co. v 
 Godet, 34 N. Y. Supr. (2 J. & Sp.) 359. 
 
 849. Discharge. A defendant who has been 
 arrested in a suit may, under sec. 183 of the 
 
616 
 
 PRACTICE. 
 
 Code as amended in 1862, move for his discharge 
 at any time, even after judgment, within 20 
 days after tlie service of the order of arrest. 
 Sup. Ct. Sp. T., 1872, FarmtT v. Robbins, 47 
 How. 415. 
 
 8.50. If a defendant is arrested in a county 
 otlier tlian tliat of his residence, soon after tlie 
 close of a trial on wliich he has been in attend- 
 ance as a witness, and just as he is about to 
 leave for liis home, he is entitled to be discharg- 
 ed immediately on claiming liis personal privi- 
 lege to the oflScer who arrested him or the judge 
 who issued the order; but if he neglects to do 
 so, and after giving bail and notice of appear- 
 ance, waits until 22 days after the arrest before 
 moving for a discharge, he thereby waives his 
 privilege. lb. 
 
 851. Prior to 1870 there was in the Code no 
 limitation of tigie during which an execution 
 against the person of a defendant in custody 
 might he issued ; and the amendment then made 
 to sec. 288, requiring such execution to be issued 
 within 3 montlis after the entry of judgment, 
 otherwise allowing the defendant to be discharg- 
 ed from custody and from liabilitj' to execution 
 in tlie action, like the similar provisions of the 
 revised statutes not then in force, applied only to 
 defendants in actual custody, not to those who 
 were out on bail ; and it required that they 
 should be discharged by an order of the court 
 or judge. Com. App., 1874, Bostwick v. Goetzel, 
 57N. Y. (12 Sick.) 582. 
 
 852. A person brought into this State by 
 means of fraudulent proceedings on the part of 
 some of his creditors, is nevertheless subject to 
 arrest in a civil action by other creditors who 
 were not concerned in the fraud, and will not be 
 discharged from arrest on account thereof. 
 Sup. Ct. Sp. T., 1874, Adrience v. Lagrave, 47 
 How. 71 ; S. C, 15 Abb. N. S. 272 ; Rev'd, Sup. 
 Ct., 1874, Bacharach v. Lagrave, 47 How. 385 ; 
 S. C, 1 Hun, 689. But aff'd, 59 N. Y. (14 Sick.) 
 110. 
 
 863. An infant is liable to arrest in an action 
 for fraud or conversion, and his infancy is no 
 cause for a discharge therefrom. Sup. Ct. Sp. 
 T., 1873, Schunemann v. Paradise, 46 How. 426. 
 
 :54. Neglect to enter judgment against a de- 
 fendant who is in actual custody under an order 
 of arrest, within one month after it is in the 
 plaintiff's power to do so, entitles the defendant 
 absolutely to a discharge from sucli custody, 
 under subd. 2, sec. 288 of the Code, and exoner- 
 ates him from liability to arrest on execution 
 unless good cause to the contrary is shown. The 
 word "may" in that connection means "shall." 
 N. Y. Supr. Ct., 1873, Corleu v. Griffin, 36 N. Y. 
 Supr. (4 J. & Sp.) 515. 
 
 855. It is seldom proper on a motion, like one 
 to discharge from arrest, to try questions of fact 
 which may be part of the matters in issue, such 
 as the question whether a demand was received 
 by the defendant, which the sworn complaint 
 and affidavits alleged to have been mailed to 
 him. Sup. Ct. Sp. T., 1873, People v. Clark, 45 
 How. 12. 
 
 856. Vacating order. A motion to vacate 
 an order of arrest must be made within 20 days 
 after the arrest, even where the defendant's first 
 motion therefor has been denied, with leave to 
 renew, unless the order allowing it to be renewed 
 contains something indicating the intention of 
 the court to extend the time. Sup. Ct., 1874, 
 Wheeler v. Brady, 2 Hun, 347. 
 
 857. A motion to vacate an order of arrest 
 cannot, under sec. 204 of tlie Code, be made he- 
 fore the order is actually served. N. Y. Supr. 
 
 Ct. Sp. T., 1873, Kern v. Baehaw, 44 How, 443 ; 
 S. C. before 12 Abb. N. S. 352 ; 34 N. Y. Supr. (2 
 J. & Sp.) 443. 
 
 858. Upon a motion to discharge from arrest, 
 the order of arrest or a copy thereof, and the 
 papers on which it was founded must be pre- 
 sented to tlie court. An affidavit stating gener- 
 ally what they contain is not sufficient. lb. 
 
 859. A motion to vacate an order of arrest, 
 founded on the original papers, may be made at 
 any time before judgment, or it may be made 
 after judgment if within 20 days after service 
 of the order of arrest. Sup. Ct. Sp. T., 1868, 
 Pelo V. Clulcey, 36 How. 179. 
 
 860. A defendant seeking to vacate an order 
 of arrest, may move solely upon the original 
 papers of the plaintiff as affording insufficient 
 grounds of arrest, and thus present the naked 
 legal question on undisputed averments of fact ; 
 or he may move upon affidavits assailing the truth 
 of some of the plaintiff's allegations. If he takes 
 the latter course he re-opens the whole case, and 
 the plaintiff may produce affidavits to sustain 
 not only tlie points assailed by the defendant, 
 but those not so assailed. Sup. Ct. Sp. T., 1874, 
 Evnns V. Holmes, 46 How. 515. 
 
 861. Even though the affidavit on which an 
 arrest is founded is made on information and be- 
 lief, and does not state the facts on which the 
 belief is founded, yet an application to vacate 
 the arrest will be refused when made upon addi- 
 tional affidavits, unless the defendant expressly 
 denies under oath the truth of the averment 
 brought in question. lb. 
 
 862. Imperfections in the copies of the order 
 of arrest and affidavits on which it was granted, 
 served on the defendant, are not grounds for 
 setting aside an order of arrest granted on suffi- 
 cient papers. Sup. Ct., 1875, Bank of Havana v . 
 Moore, 5 Hun, 624. 
 
 863. An affidavit, in an action for breach of 
 promise of marriage, which alleges a cohabitation 
 between the parties as husband and wife for a 
 period of 16 years, recognition of the relation by 
 the defendant, and the birth of a number of 
 children, raises a strong presumption of marriage, 
 and an order of arrest thereon should be va- 
 cated on motion. N. Y. Supr.Ct., 1870, Durand 
 V. Durand, 2 Sweeny, 315. 
 
 864. An order of arrest granted upon a charge 
 of the fraudulent disposition of property by the 
 defendant, which is supported by but little proof, 
 and that of facts and circumstances of slight 
 weight, and is expressly and distinctly denied 
 by the affidavits on the part of the defendant, 
 should be vacated on a motion for that purpose. 
 N. Y. Supr. Ct., 1871, Chambers v. Durand, 33 N. 
 Y. Supr. (1 J. & Sp.) 494. 
 
 865. Upon such a motion, the plaintiff cannot 
 use, in support of tlie order, affidavits setting up 
 anotlier and distinct ground for an arrest ; yet, 
 if he fails to sustain it on the original ground, 
 and his proofs establish another cause for arrest, 
 the order should be vacated without prejudice 
 to a new motion for an order of arrest. lb. 
 
 866. An order of arrest in an action for libel 
 will not be vacated, where the complaint and 
 affidavit on which it was granted contain facts 
 from which the judge granting it might prop- 
 erly become judicially satisfied that a cause of 
 action existed, and tliat it was not one of a triv- 
 ial character, and the proofs presented on the mo- 
 tion to vacate do not show that the discretion of 
 the judge was erroneously exercised. Sup. Ct. 
 Sp. T., 1872, Blahelee v. Buchanan, 44 How. 97. 
 
 867. Cause of action justifying arrest. 
 When the cause of action is one which gives 
 
PRACTICE. 
 
 617 
 
 plaintifl a right to an order of arrest, and the 
 facts constituting it are identical with the facts 
 constituting the ground of arrest, the defendant 
 can contest the right to arrest upon a prelimin- 
 ary motion to set aside the order, and also con- 
 test the alleged cause of action on the trial, the 
 decision of the motion to set it aside not being 
 conclusive upon hira. Ct. App., 1871, Elwood v. 
 Gardner, 10 Abb. N. S. 238 ; S. C, 45 N. Y. (6 
 Hand,) 849. See cases collected in note. 
 
 868. In actions where facts dehors the cause of 
 action constitute the ground of arrest, if an order 
 of arrest is obtained before judgment the defend- 
 ant can move to set it aside at any time before 
 judgment | and if he omits to do so, or is unsuc- 
 cessful in a motion for that purpose, he is con- 
 cluded by the judgment against him from ques- 
 tioning the binding effect of the order, and a cm. 
 sa. may issue without any further direction or 
 order of the court. lb. 
 
 869. Where the facts on which the arrest was 
 obtained and those constituting the cause of ac- 
 tion are identical, the defendant to obtain a 
 vacation of the arrest, must produce evidence 
 such as would oblige the judge at the trial either 
 to non-suit the plaintiff or to direct a verdict for 
 the defendant. Sup. Ct. Sp. T., 1875, Griswold 
 v. Sweet, 49 How. 171. 
 
 870. On a motion to vacate an order of arrest, 
 the Special Term cannot try the case upon affi- 
 davits, nor, should it, in case of a conflict of evi- 
 dence, undertake to determine the preponder- 
 ance of evidence. lb. 
 
 871. Upon such a motion, the plaintiff cannot 
 set up grounds for retaining the order of arrest 
 not put forth by him as the original ground of 
 the order. lb. 
 
 872. An order of arrest is not a matter of ab- 
 solute right, under sec. 179, of the Code, but one 
 of discretion, and such discretion may be re- 
 viewed on the motion to vacate. lb. 
 
 873. An order of arrest granted on an appli- 
 cation made about five years after the com- 
 mencement of the suit, and after it had been 
 partly tried, in a case where no clear case for 
 arrest was established, and none for its continu- 
 ance is shown, should be vacated. lb. 
 
 874. In actions where the cause of action and 
 tlie facts which authorize an arrest are the same, 
 the court will not, ordinarily, try the merits upon 
 a motion to vacate the arrest. If the original 
 affidavits made out a, prima facie case of a cause 
 of action authorizing an arrest, the court will not 
 set aside the order, unless the proof adduced by 
 tlie defendant is so clearly preponderating as to 
 leave no reasonable doubt of his success on the 
 trial. N. Y. Supr. Ct., 1870, Paris v. Peck, 10 
 Abb. N. S. 55; S. C, 2 Sweeny, 689. 
 
 875. Tlie decision of the Special Term, that 
 there was or was not a clear weight of evidence 
 in favor of tl)e defendant, ought not to be dis- 
 turbed by the General Term on appeal. lb. 
 
 876. In an action against two defendants, 
 charging them with a conspiracy to defraud, if 
 the evidence against one of them is too slight to 
 liold him to bail or to sustain a verdict against 
 him, he should be discharged. lb. 
 
 877. Where the facts on which an order of 
 arrest is issued are those which constitute the 
 cause of action, the court will not on motion 
 vacate the order, unless on conceded facts the 
 law is against the plaintiff, or the proof is of 
 Bucli a nature that, if adduced on the trial, the 
 court would be obliged to either non-suit or di- 
 rect a verdict for the defendant. N. Y. Supr. 
 Ct, 1871, Hoy v. Duncan, 33 N. Y. Supr. (1 J. & 
 Sp.) 555. 
 
 878. But when the order is based apon extrin- 
 sic facts, the court must pass upon the disputed 
 facts, and make up its determination on the 
 principles wliich govern on a trial of questions 
 of fact before a jury or a referee. lb. 
 
 879. On such a motion, the court must deter- 
 mine to which of those classes the case belongs ; 
 and if the complaint is so drawn as to render it 
 uncertain to which class it belongs, the court 
 will lean in favor of personal liberty, and hold 
 it to contain a cause of action which does not 
 authorize an arrest. lb. 
 
 880. In such a case, the plaintiff must main- 
 tain, by preponderating evidence, his allegations 
 on which the order was granted, otherwise it 
 will be vacated. lb. 
 
 881. The exoneration of the bail follows, of 
 course, from vacating the order of arrest, sub- 
 ject to be revived if the vacatur be reversed. lb. 
 
 2. Attachment. 
 
 882. Jurisdiction. The power of the coimty 
 judge to issue attachments is not limited by law 
 to cases in the Supreme Court which are to be 
 tried in his county. Com. App., 1873, Webh v. 
 Bailey, 54 N. Y. (9 Sick.) 164. 
 
 883. Affidavit for. An affidavit for an at- 
 tachment must show that a cause of action exists 
 in favor of the plaintiff against the defendant, 
 state the facts out of which it arose, and state 
 them directly and not merely by way of recital. 
 Sup. Ct, 1875, Manton v. Poole, 4 Hun, 638. 
 
 884. An affidavit in which the facts justifying 
 an attachment are not sworn to directly, but are 
 referred to as contained in another affidavit, 
 without stating that such affidavit is anywhere 
 on file, or without a copy thereof being annexed 
 to the affidavit on which the attachment was 
 ordered, is not sufficient to sustain it. N. Y. C. 
 P. Sp. T., 1875, Fitzgerald v. Belden, 49 How. 
 225. 
 
 885. It is not sufficient, in an affidavit for an 
 attachment, to state tliat the plaintiff has a just 
 cause of action against the defendant for the 
 amount named, but the facts constituting the 
 cause of action must be set forth. Sup. Ct., 
 1875, RicUer v. Wise, 3 Hun, 398. 
 
 886. An attachment on the ground that the 
 defendant intends to defraud his creditors can- 
 not be sustained, where the affidavit merely 
 shows that his books of account have been se- 
 creted by his servant, and are not accessible to 
 his creditors, but does not connect him with such 
 secretion, or show tliat it was with his authority, 
 knowledge or approbation. N. Y. C. P., Sp. T., 
 1875, Fitzgerald v. Belden, 49 How. 225. 
 
 887. An affidavit for an attachment, which 
 avers that the affiant is informed and believes 
 that the defendant contracted the debt fraudu- 
 lently ; that he was tlien engaged in putting liis 
 property out of his hands, and proposed . to re- 
 fuse payment of his obligations, and defraud his 
 creditors, in pursuance of a plan formed before 
 contracting the debt; and that, when charged 
 with these facts by the plaintiff's father, he did 
 not deny their truth ; corroborated by the affi- 
 davit of plaintiff's father ; makes out a prima 
 
 facie case of fraudulent design, and is sufficient. 
 Sup. Ct, 1875, Blake v. Bemhard, 3 Hun, 397. 
 
 888. An affidavit containing a general aver- 
 ment only of a fraudulent disposition of the 
 debtor's property, with further statements made 
 on information and belief of fraudulent represen- 
 tations, without showing that the person from 
 whom the information was obtained is absent or 
 that his deposition cannot be procured, is insuf- 
 
618 
 
 PRACTICE. 
 
 ficient to authorize the issue of an attachment. 
 Com. App., 1871, Yates v. North, 44 N. Y. (5 
 Hand,) 271. 
 
 889. Such an affidavit cannot be fortified, on 
 motion to vacate the attachment, by additional 
 affidavits in support of the facts alleged, even 
 though such motion is founded upon affidavits. 
 Ih. 
 
 890. An affidavit for an attachment on the 
 ground of the non-residence of the defendant 
 need not aver in positive terms that he is a non- 
 resident, but it is sufficient if it states facts from 
 wliicli that conclusion, and that only, can he 
 consistently drawn. Sup. Ct., 1875, Mayor, etc. 
 of New York v. Genet, 4 Hun, 487. 
 
 891. Thus, an affidavit showing that the de- 
 fendant, liaving been convicted on an indictment 
 for obtaining, by false pretenses, the money 
 sought to be recovered in the suit, escaped from 
 the officer before sentence, and iiis whereabouts 
 had not been discovered, although the most 
 strenuous exertions liad been made to that end, 
 — Held to show sufficiently that he was a non-re- 
 sident, even though his domicil and his family 
 remained in this state. lb. 
 
 892. Filing of afEdavit. The non-filing of 
 the affidavit upon which an attachment issued, 
 does not affect the warrant or the proceedings 
 under it. N. Y. Supr. Ct., Sp. T., 1868, Brash v. 
 
 Wielarsia/, 36 How. 253. 
 
 893 Service of summons. In a case where 
 a summons and an attachment against the prop- 
 erty of the defendant, as a non-resident, are is- 
 sued at the same time, tlie summons must be 
 personally served or an order of publication 
 obtained within thirty days thereafter, otherwise 
 tlie attachment is invalidated, and should be set 
 aside. Sup. Ct, 1874, Taddiken v. CantrelL 1 
 Hun, 710. 
 
 894. When may issue. An attachment un- 
 der sec. 227 of the Code may be granted by the 
 Court of Common Pleas of New York whenever 
 it shall appear (witli tlie other necessary facts) 
 that an action has been commenced by the issue 
 of a summons ; and if such attachment be levied 
 after personal service of the summons in the 
 county of New York, the levy is valid. N. Y. 
 C. P., Sp. T., 1871, Woodward v. Stearns, 10 Abb. 
 N. S. 395. 
 
 895. The validity of the warrant or of the 
 proceedings do not at all depend on a compliance 
 with the direction as to filing the affidavits on 
 which it issued within 10 days. lb. 
 
 896. A warrant of attachment against the 
 property of a non-resident debtor, may be issued 
 at the same time as the summons, and it may be 
 served and a valid lien acquired before service 
 of the summons. Com. App., 1873, Webb v. Bai- 
 ley, 54 N. Y. (9 Sick.) 165. 
 
 897. The amendment made in 1866 to sec. 227 
 of tlie Code, was only declaratory of the law as 
 it previously existed. lb. 
 
 898. Order of arrest in same action. 
 The two provisional remedies, by attachment 
 and by order of arrest, are not so inconsistent in 
 their nature that the allowance of both in the 
 same action will render both void. Ct. App., 
 1874. Rockford, R. I. and St. Louis R. R. Co. v. 
 Boody. 56 N. Y. (11 Sick.) 456. 
 
 899. The remedies of arrest and attachment 
 may be simultaneously employed in the same 
 suit, and pursued so far as to secure a probable 
 satisfaction of the plaintiff's demand ; but an ar- 
 rest and a seizure of his property to the full 
 amount of tlie plaintiff's claim will not be allow- 
 ed. Sup. Ct., 1875, People v. Tweed, 5 Hun, 382. 
 
 900. In virhat cases may issue. In actions 
 
 on contract for the recovery of unliquidated 
 damages, an attachment may properly issue, 
 when a disclosure of the grounds of the claim 
 supplies practicable means for determining its 
 amount. Sup. Ct., 1876, United States v. Graff, 
 4 Hun, 634. 
 
 901. Action for fraud. An action to re- 
 cover back money deposited with defendants 
 under an executory contract for a partnership, 
 on the ground that the plaintiff was induced to 
 make it by fraud, no demand and refusal being 
 averred, is not an action on contract, nor for a 
 conversion, but is one for a fraud, and an at- 
 tachment cannot be issued therein. N. Y. C. P., 
 Sp. T., 1871, Knapp V. Meigs, 11 Abb. N. S. 405. 
 
 902. Against non-resident. A person who 
 escapes from an ^officer after conviction of a 
 criminal offense, and before sentence, and keeps 
 himself concealed so that his whereabouts can- 
 not be discovered after most strenuous exertions, 
 may be presumed to be a non-resident, within 
 the meaning of the attachment laws, notwith- 
 standing his family and his domicil may remain 
 here. Sup. Ct., 1875, Mayor, etc. of New York 
 v. Genet, i Hun, 487. 
 
 903. A person carrying on business as a manu- 
 facturer and dealer in carriages, in the city of 
 New York, who has for several years occupied 
 a furnished apartment over his store, and had 
 his meals cooked there and slept there, but has 
 a family livjng in a hired house in Connecticut, 
 and calls that his home, and is accustomed in 
 summer to go there every Friday night and re- 
 turn on Sunday night, — Held, to be a non-resi- 
 dent, within the meaning of the attachment law. 
 N. Y. C. P., Murphy v. Baldwin, 41 How. 270 ; 
 S. C, 11 Abb.'N. S. 407. 
 
 904. An attachment may properly issue 
 against a non-resident defendant, in an action to 
 recover damages for the breach of a contract to 
 deliver to plaintiff certain town bonds. Sup. Ct., 
 1874, Clews v. Rockford, Rock Isl. S/- St. Louis 
 R. K Co., 2 Hun, 379. 
 
 905. What may be attached. Debts and 
 choses in action are to be regarded as legal as- 
 sets under the attachment laws, whenever that 
 process acts directly upon the legal title ; but 
 when such legal title is in another than the 
 debtor, although under an alleged fraudulent as- 
 signment, the service of an attachment with 
 notice, upon the obligor, will create no lien 
 thereon, nor will the sheriff thereby become au- 
 thorized to maintain an action against the as- 
 signee to set aside the assignment for fraud and 
 subject the obligation to the operation of the at- 
 tachment. Ct. App., 1872, Thurber r. Black, 50 
 N. Y. (5 Sick.) 80. See per contra, Mechanics 
 and Traders Bank v. Dakin, 51 id., 519. 
 
 906. Where, on a sale of personal property, it 
 is, by the instrument of transfer, declared arid 
 agreed that a portion of the purchase-money . 
 may be paid to the creditors of the vendor, but no 
 corresponding obligation is placed upon the ven- 
 dee to so pay it, there is no trust created ; but 
 the balance unpaid is a debt, and an attacliment 
 against the vendor levied upon such debt will 
 hold it. Ct. App., 1872, Kelly v. Babcock, 49 
 N. Y. (4 Sick.) 318. 
 
 907. Money held in trust, under a ver- 
 bal agreement, for the purpose of effecting a 
 compromise with the creditors of the owner, 
 may be attached, so long as it remains in the 
 hands of the trustee and is not paid over to the 
 creditors, nor any compromise effected. N. Y. 
 Supr. Ct., 1872. Lynch v. Crary, 34 N. Y. Sunr 
 (2 J. & Sp.) 461. - . 
 
 908. Partnership property. In this State 
 
PRACTICE. 
 
 619 
 
 it has been uniformly held, that a sherifE, on an 
 attachment or execution against one of sereral 
 partners, may take possession of the partnership 
 property, sell the interest of tlie debtor in it, and 
 deliver the property to the purcliaser. Sup. Ct., 
 1871, Marshall r. McGregor, 59 Barb. 519. 
 
 909. Levy of. An attachment, issued as a 
 provisional remedy in an action, cannot he levied 
 after judgment has been entered in such action. 
 Ct. App., 1873, Lynch v. Crary, 14 Abb. N. S. 85 ; 
 S. C, 52 N. Y. (7 Sick.) 181 ; Eev'g 34 N. Y. 
 Supr. (2 J. & Sp.) 461. 
 
 910. The attachment continues in force after 
 judgment only for the purpose of giving effect 
 to the lien acquired under it, and existing when 
 the judgment was rendered, until execution is- 
 sues, lb. 
 
 911. An attachment can be executed upon 
 personal property, tangible in its character, only 
 by the sheriff's taking it into his custody. Sup. 
 Ct., 1875, United States v. Graff, 4 Hun, 634. 
 
 912. Where property of the attachment debt- 
 or is in a safe in a trust company's vault, the 
 sherifE may be directed by the court to open such 
 safe and take possession of the property. lb. 
 
 913: Levy on debt. A debt due on ac- 
 count is a mere chose in action, incapable of 
 seizure by the sheriff, and he cannot make an 
 effectual levy of an attachment upon such a 
 debt without giving notice thereof to the attach- 
 ment defendant. Sup. Ct., 1872, Clark v. War- 
 ren, 7 Lans. 180. 
 
 914. Service on the defendant's debtor, by the 
 sheriff, of a copy of the attachment, with a no- 
 tice that " all debts, credits and effects " of the 
 defendant are liable thereto and are thereby at- 
 tached by him, including the particular claim in 
 question, is a sufficient attachment thereof to 
 bind the debt and place it in the custody of the 
 sheriff. N. Y. Supr. Ct., 1871, McGinn v. Ross, 
 11 Abb. N. S. 20 ; S. C, 33 N. Y. Supr. (IJ. & Sp.) 
 346. 
 
 915. The provision of sec. 232 of the Code, re- 
 quiring the making and filing of an inventory is 
 for the benefit of the the plaintiff, and the fail- 
 ure to iile it will not invalidate the levy, if other- 
 wise sufficient. lb. 
 
 916. "Where, upon serving an attachment on a 
 factor he represents that the balance due from 
 him to the attachment debtor is sufficient to sat- 
 isfy the attachment debt, and the creditor or 
 sheriff thereupon refrains from levying on 
 specific property of the debtor in the hands of 
 such factor, and it turns out that the balance 
 due from the factor is in fact much less and not 
 sutficient to satisfy such debt, the creditor will 
 have a claim upon such specific property, and 
 the factor cannot pay out the proceeds thereof 
 on a clieck which he had previously told the 
 holder was good and would be paid, but had not 
 accepted in writing, to the prejudice of such 
 creditor. N. Y. Supr. Ct., 1874, Duncan v. Ber- 
 lin, 38 N. Y. Supr. (6 J. & Sp.) 31 ; Aff'd, S. C, 
 60 N. Y. (15 Sick.) 151. 
 
 917. If a debtor of the defendant refuses to 
 givfe the certificate required by see. 236 of the 
 Code for the benefit of the attaching creditor, 
 the latter is entitled to have him examined as 
 therein provided for, and an order for his exam- 
 ination will not be set aside on the affidavit of 
 such debtor that the funds in his hands are held 
 in trust and cannot be applied in payment of the 
 plaintiff's debt; Sup. Ct., 1875, Baxter v. Mo., 
 Kansas Sr Texas Ry. Co., 4 Hun, 630. 
 
 918. — on property in hands of third 
 party. Under sec. 235 of the Code, in order 
 to bind the property, &c., of the debtor in the 
 
 hands of a third person by an attachment, it is 
 sufficient to serve upon such person, with a 
 copy of the attachment, a general notice that 
 all the property, debts,, etc., of the defendant in 
 the action, in the possession or control of the 
 person served with the notice, is attached, with- 
 out specifying particularly the property sought 
 to be reached. Ct. App., 1874, O'Brien v. Me- 
 chanics and Traders F. Ins. Co., 15 Abb. N. S. 
 222 ; S. C.,46 How. 429; 56 N. Y. (11 Sick.) 52 ; 
 Bev'g S. C, 44 How. 213 j 45 id. 453 ; 35 N. Y 
 Supr. (3 J. & Sp.) 70 ; 14 Abb. N. S. 314. 
 
 919. Such a general notice i^ sufficient to hold 
 the defendant's claim against an insurance com- 
 pany for a loss of insured property, and enable 
 the sheriff to sue on the policy. lb. 
 
 920. The mere delivery of a copy of an 
 attachment to a person in possession of defend- 
 ant's property and informing him of its charac- 
 ter, does not constitute a levy. N. Y. Supr. Ct., 
 1874. Miles v. Brown, 38 N. Y. Supr. (6 J. & 
 Sp.) 400. 
 
 921. Where an officer, after serving a war- 
 rant of attachipent by leaving a copy with the 
 person in possession of the property, received 
 and served another warrant of attachment in 
 the same manner, and afterward took possession 
 of and removed the goods, — Held, that they 
 were taken and removed under both attach- 
 ments, lb. 
 
 922. Shares of b.ank stock or other property 
 incapable of manual delivery, held by a corpo- 
 ration or other association, can be subjected to 
 the lien of an attachment only by leaving a cer- 
 tified copj' of the warrant with one of the officers 
 or the managing agent of such corporation or 
 association mentioned in sec. 235 of the Code. 
 Sup. Ct., 1872, Pardee v. Leitch, 6 Lans. 303. 
 
 923. Leaving such copy with a person not 
 such officer or agent, who forwards it by 
 mail to such an agent, by whom it is received, 
 is not a good execution of the attachment. lb. 
 
 924. — on securities. The service of a 
 copy of attachment upon a bank, with a gen- 
 eral notice by the sheriff that he levies " on the 
 bank account of the defendant G and any debt 
 due or owing from the bank to him," does not 
 amount to an attachment of a surplus arising 
 from a subsequent advance in stocks before that 
 time pledged by G to the bank for loans to their 
 then full value ; and the sheriff, after returnuig 
 his attachments as " merged in execution," and 
 subsequently returning his execution nulla bona, 
 cannot without a further levy_hold such surplus 
 on an alias execution, as against a receiver of 
 the debtor appointed in supplementary proceed- 
 ings. Ct. App., 1869, Clarke v. Goodridge, 44 
 How. 226; S. C, 41 N. Y. (2 Hand,) 210. 
 
 925. The notice served by the sheriff held suf- 
 ficient under sec. 235 of the Code, by two of 
 the judges and insufficient by one, and its suf- 
 ficiency held by two others not to be in question 
 in the case. lb. 
 
 926. — on stock. One who has transferred 
 a certificate of stock in a corporation by deliv- 
 ery, as collateral security for an indebtedness, 
 with the usual power of attorney indorsed there- 
 on, signed by him in blank, has no remaining 
 interest therein, which can be attached in an 
 action against him, notwithstanding by the 
 charter of the corporation its stock is transfera- 
 ble only on its books. Sup. Ct., 1873, Smith 
 V.American Coal Co. of Alleghany Co., 7 Lans. 
 317. 
 
 927. Priority of lien. Creditors who ob- 
 tain an attachment and levy upon property 
 here belonging to debtors residing in England, 
 
620 
 
 PRACTICE. 
 
 before the execution tliere of a composition 
 deed to a trustee for creditors, under the English 
 bankrupt law, which provides that nothing 
 therein contained shall discharge any lien or 
 other security held by any of the creditors, 
 thereby acquire a specific lien on the property 
 attached wliich is not affected by the bank- 
 ruptcy proceedings ; and where an undertaliing 
 has been given to obtain a discharge of the at- 
 tacliment, that being a substitute for the prop- 
 erty seized, they are entitled to proceed to judg- 
 ment in the action, to enable them to proceed 
 against the sureties in tlie undertaking. Sup. 
 Ct., 1874, Fielmann v. Brunner, 2 Hun, 354. 
 
 928. Effect of notice of lis pendens. 
 Whether the clause of sec. 132 of the Code 
 which declares that every person whose convey- 
 ance or incumbrance is executed or recorded 
 subsequent to the filing of a lis pendens shall be 
 deemed a subsequent purchaser or incumbrancer, 
 applies to an attachment case, or whether it is 
 not limited to actions of foreclosure, query f 
 Sup. Ct., 1872, JLamont v. Cheshire, 6 Lans. 234. 
 
 929. Possession of land under an unrecorded 
 deed by the grantee, at the time the same is at- 
 tached as the property of the grantor, and at 
 the time of the execution sale, is notice of the 
 possessor's right to the purchaser at such sale, 
 and such grantee will not be deemed a subse- 
 quent purchaser, although his deed is not re- 
 corded until after the filing of the lis pendens. 
 lb. 
 
 930. That clause of see. 132 of the Code 
 which declares that subsequent purchasers and 
 incumbrancers are bound by all proceedings in 
 the action taken after the filing of the lis pen- 
 dens, to the same extent as if they were parties 
 to the action, does not apply to attachment cases 
 lb. 
 
 931. Discharge from. An undertaking drawn 
 in substantial accordance with the Code, and 
 delivered for the purpose of discharging an at- 
 tachment, is not rendered invalid by the fact 
 that, in consideration thereof, the plaintiff in- 
 stead of the judge, released the property. Sup. 
 Ct., 1873, Cockroft v. Claflin, 64 Barb. 464. 
 
 982. An undertaking signed with a firm name 
 by one of the partners, probably would not bind 
 the firm without other proof; but it is good 
 against a partner who knew of the signature, and 
 directed the delivery of the undertaking. lb. 
 
 933. Such an undertaking, conditioned to pay 
 any judgment that may be recovered against 
 the defendants in that action, is not discharged 
 by tlie death of one of the defendants ; but if 
 the cause of action survives, and the action is 
 continued against the survivor, the signers are 
 liable to pay a judgment recovered against him 
 therein. lb. 
 
 934. A transfer of the property of a debtor 
 to an assignee in bankruptcy, dissolves the lien 
 of an attachment sued out of a state court and 
 levied upon the property within four months prior 
 to the commencement of the bankruptcy proceed- 
 ings. Ct. App. 1874, Miller v. Bowles, 58 N. Y. 
 (13 Sick.) 253. 
 
 935. The appointment of a receiver by the 
 state court, and a transfer to him of the cus- 
 tody of the attached property prior to the ap- 
 pointment of such assignee, does not alter the 
 rights of the parties, or entitle the attaching 
 creditor to a preference in payment, from the 
 proceeds of the property attached, of a judg- 
 ment obtained by him. lb. 
 
 936. Under sec. 241 of the Code, as amended 
 in 1857, the defendant may move to discharge 
 the attachment, as in case of other provisional 
 
 remedies, in all cases, including eases of want 
 of jurisdiction in the oflScer who issued the 
 writ, fraud in obtaining it, defective papers and 
 various others, and such motion may be made 
 after judgment entered, even though the defend- 
 ant may have appeared and given the under- 
 taking required by sees. 240-241. Sup. Ct., 
 1870, iJow/es V. fl^oare, 61 Barb. 266. 
 
 937. If the motion to discharge an attachment 
 is based upon the original aflSdavits of the plain- 
 tiff alone, no further affidavits on his part are 
 admissible ; but if based upon such original affi- 
 davits and upon other affidavits on the part of 
 the defendant, or upon the latter alone, the 
 plaintiff has the right to read other affidavits in 
 opposition to each point made by the defendant 
 in his moving papers. lb. 
 
 938. Restoration of possession. Under 
 sec. 241 of the Code, as amended in 1869, it is the 
 duty of the sheriff to retain the attached prop- 
 erty, notwithstanding tlie ex parte approval by 
 the officer granting a discharge from the attach- 
 ment of the undertaking given to procure such 
 discharge, until all objections to the sureties on 
 the plaintiff's part are either waived or the 
 undertaking re-approved on justification of sure- 
 ties ; and any positive direction to the contrary 
 which may be incorporated into tlie order of 
 discharge is erroneous. N. Y. Supr. Ct., Sp. T., 
 1873, Moses v. Waterbury Button Co., 46 How. 
 528 ; S. C, 15 Abb. N. S. 205. 
 
 939. This is a matter of substantial right, 
 which is not waived by the verbal consent of 
 plaintiff's attorney to the entry of the usual 
 order for the discharge of the attachment. lb. 
 
 940. Setting aside attachment. The pend- 
 ency of an afipeal from judgments in one court, 
 vacating attachments therein for irregularity, 
 and dismissing the suits, which appeal was 
 taken after payment of costs on such judgments, 
 and after the commencement of new suits for 
 the same cause in another court, is not good 
 cause for setting aside attachments issued in 
 such new suits. N. Y. C. P., Sp. T., 1871, Havi- 
 land v. Welde, 11 Abb. N. S. 447. 
 
 941. Action by sheriff. An action to col- 
 lect or reduce to possession, debts, credits and 
 effects of an attachment debtor, must be brought 
 in the name of the sheriff having the attach- 
 ment, or in the name of the debtor himself. 
 Although the attachment plaintiff is authorized 
 by sec. 238 of the Code to prosecute any action 
 which the sheriff might in such a case, he can- 
 not do it in his own name. N. Y. Supr. Ct., Sp. 
 T., 1873, Van Volkenburgh v. Bates, 14 Abb. N. S. 
 314, n. S. P., Luptm v. Smith, 48 How. 261 ■ 3 
 Hun, 1. 
 
 942. Whether the sheriff could maintain an 
 action to compel the debtor's agent to indorse a 
 draft, payable to his order but belonging to the 
 debtor, of which the sheriff has obtained posses- 
 sion by a false pretense, may well be doubted ; 
 but such an action cannot be maintained by the 
 attachment plaintiff. lb. 
 
 943. Action on undertaking. An action 
 can be maintained upon a statutory undertaking 
 given to procure the discharge of property from 
 an attachment, notwithstanding the attachment 
 may have been set aside on counter-affidavits, 
 and no consideration need be proved on the 
 trial. Sup. Ct., 1872, Bildersee v. Aden, 12 Abb. 
 N. S. 324 ; S. C. 62 Barb. 175 : Eev'g S. C, 10 
 Abb. N. S. 163. 
 
 944. /* seems that it would be otherwise if 
 the attachment was set aside because the affi- 
 davits on which it was issued were insufficient to 
 confer jurisdiction to issue it. lb. 
 
PRACTICE. 
 
 621 
 
 8. Claim and delivery, or Replevin. 
 
 See title Replevik. 
 
 4. Injunction, 
 
 Bee title Ikjunctioit. 
 
 945. In general. As a part of the relief to 
 which the prevailing party is entitled, an injunc- 
 tion or receiver, or both, may be granted by the 
 court in tlie exercise of its equity powers and 
 jurisdiction ; but as processes in tlie action and 
 provisional remedies, they are statutory pro- 
 ceedings, and must find their warrant in the 
 statute or they cannot stand. Ct. App., 1870, 
 Fellows T, Heermans, 13 Abb. N. S. 1. S. P., Erie 
 Railway Co. v. Ramsey, 45 N. Y. (6 Hand,) 637. 
 
 946. Freliminary. A preliminary injunction 
 in many instances operates as a decision of tlie 
 whole question before trial, giving tlie plaintiff 
 the principal relief he seeks, and should not be 
 granted when other remedies are substantially 
 sufficient. Sup. Ct. Sp. T., Burch v. Cavanaugh, 
 12 Abb. N. S. 410. 
 
 947. A preliminary injunction is a matter of 
 discretion, not of right, and should not be 
 granted in every case where the plaintiff shows 
 a prima facie case of probable right to a final in- 
 junction, but only in cases where, without it, 
 the court cannot by its final judgment do jus- 
 tice between the parties. Sup. Ct. Sp. T., 1872, 
 VanVeghten v. Howland, 12 Abb. N. S. 461. 
 
 948. The weight of opinion is in favor of the 
 proposition that a preliminary injunction should 
 not issue unless there is a complaint presented 
 from which it shall appear that the plaintiff la 
 entitled to the relief demanded. The practice 
 of allowing an injunction upon an affidavit 
 treated as a complaint disapproved. Sup. Ct. 
 Sp. T., 1875, Central Crosstoum R R Co. v. 
 Bkecker St. ^ Fulton Ferry R. R. Co., 49 How. 233. 
 
 949. 'When proper. An injunction should 
 not issue, where, not only are all the equities 
 denied, but the plaintiff's case is overborne by 
 the proofs submitted on the part of the defend- 
 ants ; and, if issued in such a case, it should be 
 dissolved. lb. 
 
 950. To restrain bringing suit. Fending 
 an action to correct an alleged mistake in an 
 agreement, which provided a severe forfeiture 
 in case of default, an injunction may properly 
 be allowed to restrain the defendant from 
 bringing suit on the contract or taking any steps 
 to enforce the forfeiture. Sup. Ct., 1874, Hum- 
 phreys V. Burtt, 3 Hun, 216. 
 
 951. — collection of judgment. In an ac- 
 tion in the Court of Common Fleas to restrain 
 the collection of a judgment entered in a dis- 
 trict court of the city of New York, the court 
 has no authority to issue a preliminary injunc- 
 tion until the plaintiff has first made the deposit 
 and filed the bond required by statute (2 Edm. 
 Stats. 196, sec. 140). N. Y. C. F., 1871, Gray 
 V. Redjidd, 4 Daly, 95. 
 
 952. — construction of railroad. In an ac- 
 tion against a railroad company to restrain it from 
 completing the construction of its road, with 
 side-tracks, turnouts, &c., on the ground that it 
 has forfeited its rights under its charter by the 
 non-completion of the road within the time pre- 
 scribed thereby, and the construction without 
 lawful authority would be a nuisance, where it 
 does not appear that the State has instituted 
 any action for a forfeiture, a preliminary injunc- 
 tion should not be granted. Sup. Ct., 1876, 
 Haight v. N. Y. Elevated R'y Co., 49 How. 20. 
 
 953. Nor should one be granted on the ground 
 that the company is using a different motor 
 from that authorized, when an issue of fact or 
 of law is tendered on that point. lb. 
 
 954. Nor should one be granted on the ground 
 that the company has violated its charter by 
 extorting illegal or excessive fares ; the remedy 
 for that being an action by the State to forfeit 
 the franchise or by the individual injured to 
 recover his damages. lb. 
 
 955. — harboring -wife. In an action brought 
 to restrain the harboring of a man's wife and 
 child, the plaintiff, to entitle himself to a prelim- 
 inary injunction, must show conclusively that 
 the defendant is actuated bv malice and not by 
 motives of humanity. N. Y. C. P. Sp. T., 1869, 
 Campbell v. Carter, 3 Daly, 165. 
 
 956. — issuing bonds. An injunction pen- 
 dente lite may properly issue to restrain town 
 officers from issuing the bonds of the town for 
 railroad purposes, in a case where it is alleged 
 that not a sufficient number of tax-payers had 
 signed the petition to authorize the issue, and 
 the affidavits tend to support that allegation. 
 Sup. Ct. Sp. T., 1872, Town of Rochester v. Dmiis, 
 44 How. 95. 
 
 957. — acting as receiver. If an order in 
 one action appointing a receiver of a corporation 
 is set aside and a new appointment made, upon 
 insufficient grounds, in a subsequent action 
 against such corporation to which the first re- 
 ceiver is a party, his remedy is by appeal and 
 not by motion in the former action to enjoin 
 and restrain the second receiver from acting. 
 Sup. Ct., 1876, Wihon v. Barney, 5 Hun, 257. 
 
 958. — selling lands. In an action against 
 heirs and executors of a deceased person to en- 
 force an equitable claim against real estate in 
 their possession, an injunction ought not to be 
 granted pendente lite, restraining the heirs from 
 selling the lands or collecting the rents, and 
 appointing a receiver thereof, unless the plain- 
 tiff establishes on his motion by evidence which 
 would be admissible on the trial, that he has 
 some equitable interest in the lands which will 
 entitle him to the ultimate possession of them or 
 some portion of them. His own affidavit would 
 not be sufficient for that purpose, as he would 
 not be a competent witness on the trial. N. Y. 
 Supr. Ct., 1871, Gregory v. Gregory, 33 N. Y. 
 Supr. (1 J. & Sp.) 1. 
 
 959. Neither should such relief be granted 
 where the real estate involved is amply sufficient 
 to satisfy the claims of the plaintiff, and a lis 
 pendens has been filed, which will effectually 
 protect his interests. lb. 
 
 960. — transferring mortgage. In an action 
 by a married woman to set aside a chattel mort- 
 gage, executed by her upon her separate prop- 
 erty to obtain the discharge of an order of 
 arrest against her husband, an injunction will be 
 granted, where a doubt exists of the validity of 
 the claim under which the arrest was made, to 
 restrain the defendants from transferring the 
 mortgage or interfering with the mortgaged 
 property until the case can be heard. N. Y. C. P. 
 Sp. T., 1869, Jmes v. Diederich, 3 Daly, 177. 
 
 961. In favor of defendeint. In an action 
 to restrain the defendant's use of plaintiff's 
 trademark, the defendant cannot set up his right 
 to the same trademark as a counterclaim, and 
 obtain an injunction against the plaintiff's use 
 thereof by way of affirmative relief. Sup. Ct., 
 1871, Glen Sf Hall Manuf. Co. v. Hall, 6 Lans. 158. 
 
 962. Second, on same papers. Where, 
 within a day or two after an injunction had been 
 dissolved, on motion, at a regular Special Term, 
 
622 
 
 PRACTICE, 
 
 the same attorneys, upon the same complaint, 
 without any new verification, or new or addi- 
 tional affidavit, or new undertaking, procured 
 from the same judge who granted the former 
 injunction, upon an ex parte application to him, 
 made out of court, and while he was not holding 
 court, but another judge was holding the regu- 
 lar Special Term and Chambers, another or 
 second injunction of the same tenor and effect 
 as the first, with an order to show cause why it 
 should not be made perpetual, — Held, tliat such 
 practice was unusual, unauthorized, and irregular 
 in every particular ; and the court, in dissolving 
 such second injunction, required the plaintiff's 
 attorneys personally to pay the costs, as a pun- 
 ishment for their misconduct. N. Y. Supr. Ct. 
 Sp. T., 1870, Schaughnessy v. Seilly, 41 How. 382. 
 
 963. After judgment. The Supreme Court 
 has no power, after judgment and an appeal 
 therefrom, to grant an injunction in the same 
 action, upon motion of the appellant, and on 
 grounds adjudicated against him by tlie judg- 
 ment, restraining the respondent from acting as 
 trustee of lands under the conveyance souglit to 
 be«et aside, pending the appeal, or to renew a 
 preliminary injunction for the same purpose 
 which had been dissolved. Ct. App., 1870, 
 Fellows V. Heermans, 18 Abb. N. S. 1. 
 
 964. Security. The provisions of the Revised 
 Statutes requiring a bond or deposit of money 
 before the issuing of an injunction to stay pro- 
 ceedings at law in a personal action (3 B. S., 
 5th Ed. 270 ; 2 Edm. Stats. 196), have not been 
 abrogated or altered by the Code, but are still 
 in force, and a failure to comply tlierewith will 
 be fatal on appeal from the injunction order. 
 N. Y. C. P., 1870, Carpenter v. Keating, 10 Abb. 
 N. S. 223. 
 
 965. Where, on appeal from an order granting 
 an injunction to restrain the foreclosure of a 
 chattel mortgage, it appeared that the plaintiff 
 was entitled to the injunction, but was insolvent, 
 and that no security had been given as required 
 by the Code, the order was affirmed on condition 
 that the plaintiff file security, in the form re- 
 quired by sec. 222 of the Code, and the rules and 
 practice of the court, within 10 days after ser- 
 vice of a copy of the order affirming it ; other- 
 wise, that it be reversed. Sup. Ct., 1874, N. Y. 
 Attrition Pulverizing Co. v. Van Tuyl, 2 Hun, 373. 
 
 966. Eztent of liability. The sureties in an 
 undertaking given upon the issuing of an in- 
 junction order cannot be compelled to pay any 
 sum for damages or costs in excess of the 
 amount named as a penalty in such undertaking. 
 N. Y. Supr. Ct., 1874, Hovey v. Rubber Tip Pen- 
 cil Co., 38 N. Y. Supr. (6 J. & Sp.) 428. 
 
 967. Cancelling undertaking. An under- 
 taking given on the issuing of an injunction is for 
 the benefit of all the defendants enjoined, wheth- 
 er served or not, and such an undertaking cannot 
 properly be cancelled by order of court, Upon the 
 plaintiff's discontinuing the action, without the 
 knowledge or consent of a defendant so en- 
 joined. Sup. Ct., 1878, Dry Dock, E. Broadway 
 S^ Battery H. R. Co. v. Cunningham, 45 How. 458. 
 
 968. An undertaking given on procuring an 
 injunction in an action against several defend- 
 ants, although joint as to the obligors or sureties, 
 is not necessarily so as to the obligees, but 
 where their interests are several the right of 
 action thereon is several ; and, consequently, 
 such an undertaking cannot be cancelled as 
 against one defendant whose interests are sev- 
 eral, upon discontinuance of the action by con- 
 sent of the other defendants. N. Y. Supr. Ct. 
 Sp. T., 1873, Cunningham v. White, 46 How. 486. 
 
 969. The fact that such defendant did not 
 appear cannot affect his rights in that respect. 
 lb. 
 
 970. Remedy against sureties. Upon the 
 assessment of damages on the dissolution of an 
 injunction, judgment cannot be entered for the 
 amount against the sureties in the undertaking, 
 but, it seems, an action on the undertaking is tlie 
 only mode in wliich they can be charge'd. Sup. 
 Ct. Chambers, 1874, Hovey v. Rubber Tip Pencil 
 Co., 47 How. 289. 
 
 971. Continuance of injunction. An or- 
 der to show cause why an injunction, granted 
 preliminarily, should not be continued, may 
 properly be made returnable before the same 
 judge who granted such injunction, althougli the 
 action be triable in another county, and in 
 another judicial district from that in which the 
 judge resides. Sup. Ct. Chambers, 1871, Harold 
 V. Hefferman, 42 How. 241. 
 
 972. Under the Code, an injunction is in the 
 first instance a mere order, like otlier orders 
 made by, judges out of court, and remains so 
 until expressly continued or dissolved by an 
 order of the judge or court upon a hearing of the 
 parties, so as to give the injured party aright of 
 appeal to the General Term. lb. 
 
 973. County judges, having power to grant 
 injunctions, have the same power to grant orders 
 to show cause why such injunctions should not be 
 continued, returnable before themselves, as have 
 judges of the Supreme Court. lb. 
 
 974. An inj unction restraining the defendant 
 from representing a certain play during the pen- 
 dency of the action, will be continued, where 
 both parties claim to have derived their title 
 from the same source, and the evidence given is 
 not sufficient to sustain the defendants' title. N. 
 Y. Supr. Ct. Sp. T., 1876, Shook v. Daly, 49 How. 
 366. 
 
 975. If the play, or any literary production 
 was immoral, the court would not protect the 
 rights of the author by injunction or otherwise, 
 lb. 
 
 976. An injunction will not be dismissed on 
 the ground that the complaint is demurrable, 
 when one defendant has answered, and the 
 others have read an answer as an affidavit, stat- 
 ing that they reserve the right to demur, and 
 the complaint does not appear to be demurrable. 
 lb. 
 
 977. Neitherts it ground for dismissing the in- 
 junction, that the defendant has substantially 
 constructed a new play in place of the original, 
 under the same name. lb. 
 
 978. An injunction granted to restrain a party 
 from selling securities pledged as collateral to a 
 loan, on the ground that they are mere covers 
 for usury, will be continued, where it appears 
 that the transaction was of such a character 
 that the jury would clearly be justified in find- 
 ing it a cover for usury. - Sup. Ct., 1874, Cald- 
 well V. Commercial Warehouse Co. o/N. Y., 1 Hun, 
 718. 
 
 979. Filing decision. The failure of the 
 judge before whom a motion is made to vacate 
 an order continuing an injunction to file his de- 
 cision within 20 days after its submission to him, 
 is not good ground for setting aside the order 
 made on such motion after the 20 days ; that 
 requirement of the statute being directory 
 merely. N. Y. Supr. Ct., 1872, Hupfel v. Schcemig, 
 34 N. Y. Supr. (2 J. & Sp.) 476. " 
 
 980. The remedy of the party aggrieved is 
 by mandamus, to compel the judge to render and 
 make known his decision. lb. 
 
 981. Damages on dissolution. The court 
 
PRACTICE. 
 
 623 
 
 has power under the Code, after final judgment I 
 dissolving an injunction, to ascertain, by a refer- 
 ence, the defendant's damages caused by such 
 injunction ; and the amount so ascertained will 
 be conclusive upon the sureties signing the un- 
 dertaking. N. Y. Supr. Ot., 1870, Leavitt v. Ddb- 
 ney, 2 Sweeny, 613. 
 
 982. Tlie liability on the undertaking arises 
 only after final judgment; and a court of equity 
 has no power, by a subsequent order, to enforce 
 the payment of damages. The defendant's only 
 remedy is by an action at law on the undertak- 
 ing, lb. 
 
 983. When proceedings, conducted by one 
 party for his own benefit in the name of another, 
 are restrained by injunction not directed to the 
 party in interest by name, the damages and ex- 
 penses incurred by him in procuring the dis- 
 charge of the injunction should be presumed in 
 law to have been incurred by the defendant on 
 the record, and should be recoverable in his 
 name for the benefit of the real party in interest. 
 Ct. App., 1872, Andrews v. Gtenvitle Woollen Co., 
 50 N. Y. (5 Sick.) 282. 
 
 984. On an assessment of damages in such 
 case, it is not competent to go into the merits of 
 the proceeding restrained, unless, perhaps, in a 
 case where the party prosecuting the reference 
 claims as damages the loss of his demand. lb. 
 
 985. Expenses properly incurred by the de- 
 fendant for tlie purpose of dissolving an injunc- 
 tion are legally allowable as damages ; and this 
 rule would include the expenses of a motion to 
 dissolve, although denied, if the denial was not 
 upon the merits, nor for any irregularity in mak- 
 ing the motion, but because the court, in its dis- 
 cretion; thouglit it more advisable to defer the 
 inquiry into the merits until the final hearing, 
 lb. 
 
 986. The authority of a court of equity to 
 award damages to a defendant by reason of the 
 issuing of an injunction iu an action pending 
 therein, rests wholly upon the provisions of the 
 Code J and the amount to be recovered on the 
 undertaking given on the granting of such in- 
 junction must be limited to the sum specified 
 tlierein. Sup. Ct., 1875, Xowion v. Green, 5 Hun, 
 157. 
 
 987. The provision for a summary assessment 
 of such damages does not, it seems, deprive the 
 defendant of the right to maintain an action for 
 indemnity as for a malicious prosecution, where 
 the elements of such an action exist. lb. 
 
 988. In order to the recovery of counsel fees 
 as damages on the dissolution of an injunction, 
 under the ordinary undertaking, in a case where 
 other relief was sought beside an injunction, 
 they must be shown to have been incurred in 
 respect to tlie injunction alone, especially where 
 tlie injunction is dissolved, not on an application 
 for that purpose but upon the trial General 
 counsel fees and costs are not to be included 
 therein in such a case. N. Y. Supr. Ct., 1872, 
 Hoveu V. Rubber Tip Pencil Co., 12 Abb. N. S. 360; 
 S. C, 35 N. Y. Supr. (3 J. & Sp.) 81 ; AfE'd, 60 
 N. Y. (5 Sick.) 335. 
 
 989. Upon a reference as to defendant's dam- 
 ages by reason of a preliminary injunction, 
 counsel fees may be allowed for services ren- 
 dered both upon the motion to dissolve the in- 
 junction and upon the reference. Ct. App., 1874, 
 Rose V. Post, 56 N. Y. (11 Sick.) 603. 
 
 990. Wliere, in an action to determine the 
 title to personal property, a temporary injunc- 
 tion is granted restraining tlie disposition thereof 
 pending the suit, counsel fees upon the trial 
 cannot be allowed on assessment of damages 
 
 therein, where the complaint is dismissed, as 
 they are not occasioned solely or principally in 
 consequence of the injunction, but would be 
 required were there none at all. Ct. App., 1873, 
 Disbrow V. Garcia, 52 N. Y. (7 Sick.) 664. 
 
 991. Where a preliminary injunction, granted 
 upon giving the usual undertaking, was contin- 
 ued, upon no cause being shown to the contrary, 
 in pursuance of an order for that purpose, dur- 
 ing the pendency of the action, and no motion 
 was made to dissolve it until the trial, when it 
 was dissolved, — Held, that counsel fees paid by 
 the defendants for the trial of tlie action could 
 not be considered as incurred by reason of the 
 preliminary injunction, and were not covered by 
 the undertaking, and therefore could not be 
 assessed as damages. N. Y. Supr. Ct. Sp. T., 
 1874, McDonald v. James, 47 How. 474 ; S. C, 38 
 N. Y. Supr. (6 J. & Sp.) 76. 
 
 992. Where such injunction was issued to 
 restrain the defendants from proceeding against 
 the plaintiff's tenants to recover possession of 
 premises to which both parties claimed title, it 
 could not affect the relation of landlord and 
 tenant, and the value of the use of the premises 
 while the defendants were restrained cannot be 
 allowed as damages, unless the defendants lost 
 the rent by reason of the injunction. lb. 
 
 993. The value of crops which the party was 
 prevented by the injunction from harvesting, 
 also the costs of the motion for the appointment 
 of a referee, the expenses of serving notice on 
 the surety in the undertaking, and the fees of 
 the referee, may be allowed as damages, in an 
 action upon the undertaking for an injunction 
 after its dissolution. Sup. Ct., 1872, Allen v. 
 Brown, 5 Lans. 511. 
 
 994. The expenses of an unsuccessful motion 
 to let aside the injunction cannot be recovered 
 in such action, even though the court afterward 
 decides that tlie party procuring it was not enti- 
 tled thereto. lb. 
 
 995. Neitlier can counsel fees or the general 
 costs or expenses of the action be recovered; 
 where it does not appear that the injunction 
 rendered the trial of the action more difficult, 
 or increased the cost or expense of tlie defense. 
 lb. 
 
 996. Where a preliminary injunction against 
 five defendants is dissolved as against four of 
 them, and tlieir damages are assessed upon the 
 undertaking, but it is continued as against the 
 other until the trial, when the complaint is dis- 
 missed as against all the defendants, and their 
 costs including an extra allowance taxed, such 
 costs and allowance are not to be deducted from 
 the damages assessed on dissolution of the injunc- 
 tion, being no part thereof. N. Y. C. P., 1875, 
 Troxell V. Haynes, 49 How. 617. 
 
 997. An assessment of damages on the disso- 
 lution of an injunction sustained, although no 
 notice of the proceedings before the referee was 
 given to a surety in the undertaking. Sup. Ct., 
 1874, Bray v. Poillon, 2 Hun, 383. 
 
 5. Receiver. 
 
 See title Becbiveb. 
 
 998. Appointment. A receiver may be ap- 
 pointed in an action before trial, even though 
 other receivers of the same funds have previous- 
 ly been appointed by other courts, in actions 
 pending therein in favor of different plaintiffs ; 
 but the latter appointment must be subordinate 
 to those previously made, and the receiver so 
 appointed can only claim funds not lawfully in 
 
624 
 
 PRACTICE. 
 
 the hands of the others, or which remain after 
 tlieir receiverships expire. N. T. Supr. Ct., 1871, 
 Baileij V. Belmont, 10 Abb, N. S. 270 ; S. C, sub 
 nom, Bailiy v. O'Mahony, 33 N. Y. Supr, (1 J. & 
 Sp.) 289. 
 
 999. Pending aa appeal from a judgment 
 for defendant in an action to set aside a convey- 
 ance conferring upon him a trust as to lands, tlie 
 court has power, on motion of the appellant, to 
 appoint a receiver to take charge of such lands 
 until the termination of the litigation. Ct. App., 
 1870, Fellows V. Heermans, 13 Abb. N. S. 1. 
 
 1000. Receiver of corporation. A receiver 
 of the property of a religious corporation cannot 
 be appointed, in an action by one claiming to be 
 a corporator against individual corporators, to 
 which the corporation itself is not made a party. 
 N. Y. Supr. .Ct Sp. T., 1871, Oroesbeeck v. Duns- 
 comb, 41 How. 802. 
 
 1001. — of estate. In an action against an 
 executor for a settlement and accounting, the 
 court has power to appoint a receiver of tlie per- 
 sonal estate of the testator. Ct. App., 1878, 
 Turner v. Crichton, 63 N. Y. (8 Siclc.) 641. 
 
 1002. — of negotiable paper. Areceiver may 
 properly be appointed . in an action to recover 
 possession of negotiable paper, alleged by the 
 plaintiff to have been transferred by lier collect- 
 ing agent to the defendant in payment of the 
 agent's own precedent debt, if plaintiff by her 
 complaint and affidavits shows an apparent right 
 to it, even though defendant denies such allega- 
 tion ; especially where it appears that defendant 
 is insolvent or has suspended payment. N. Y. 
 Supr. Ct. Sp. T., 1873, Brown v. Northrup, 15 
 Abb. N. S. 333. 
 
 1008. Property vested in. The appointment 
 of a receiver vests in him all the debtor's prop- 
 erty, real and personal, except such as is by law 
 exempt from levy and sale on execution, without 
 any assignment. Sup. Ct. Sp. T., 1878, Cooney 
 V. Cooney, 66 Barb. 524. 
 
 1004. A judgment debtor, who is a householder 
 having a family for which he provides, has a 
 right, for a reasonable time, to insurance money 
 on his household furniture destroyed by fire, for 
 the purpose of replacing the furniture, if he has 
 not used other means therefor, and cannot be 
 compelled to assign his policy to the receiver, 
 after a loss has occurred. lb. 
 
 1005. In an action to wind up the affairs of a 
 partnership, wherein a receiver has been ap- 
 pointed to take charge of the partnership prop- 
 erty, the court cannot put him in possession of 
 a market stand, for which the firm held a permit, 
 or control the action of the city ofiScers in rela- 
 tion thereto, before the determination of the is- 
 sue. N. Y. Supr. Ct. Sp. T., 1870, Barry y. Ken- 
 nedy, 11 Abb. N. S. 421. 
 
 1006. Whether, in such action, the permit will 
 pass to the receiver, depends upon whether shar- 
 ing the permits was made specifically a part of 
 the partnership contract, and that question 
 should be left to be determined at the trial. lb. 
 
 1007. Right to surplus moneys. In sup- 
 plementary proceedings against a widow, who 
 was executrix for her husband, where it appear- 
 ed that she had, without consideration, assigned 
 to her daughter a mortgage made by her sons 
 and previously held by her as security for moneys 
 due and coming due to her under her husband's 
 will, and treated by her arid the heirs as her per- 
 sonal property, executing" the assignment per- 
 sonally and not as executrix, — Held, that she 
 could not be permitted by oral proof to change 
 the legal effect of the assignment, and claim that 
 the mortgage was held by her in trust for her 
 
 husband's estate. N. Y. Supr. Ct. Sp. T., 1875, 
 Muller V. Hatt, 49 How. 374. 
 
 1008. Compensation. A receiver is simply 
 an officer, and the court has a,uthority to deter- 
 mine his compensation, and will fix it at a rea- 
 sonable sum. It is not limited to that fixed by 
 statute to executors, &c., or to that fixed by sec. 
 244 of the Code. N. Y. Supr. Ct., 1872, Baldwin 
 V. EaeUr, 34 N. Y. Supr. (2 J. & Sp.) 274. 
 
 Vin. Motions and okdbbs ; affidavits. 
 
 1009. Motion, who may make. A judg- 
 ment creditor who has assigned his judgment, 
 cannot move to set aside an order made in sup- 
 plementary proceedings, under sec. 294 of the 
 Code, requiring the judgment debtor to pay over 
 the amount of the judgment to the persons insti- 
 tuting such proceedings. N. Y. Supr. Ct. Sp. T., 
 1873, BisUp V. Garcia, 14 Abb. N. S. 69. 
 
 1010. An assignee in bankruptcy of the judg- 
 ment debtor represents not only the debtor but 
 also his creditors, and is therefore a proper party 
 to make a motion to set aside an irregular and 
 void sale of bank shares on execution. Sup. Ct., 
 1872, Pardee \. Leitch, 6 Lans. 303. 
 
 1011. An assignee of the purchaser at the sale, 
 is vested only with the interest acquired by the 
 purchaser in the property sold, and is a proper 
 and necessary party to such motion. lb. 
 
 1012. Laches, effect of. A delay for a year 
 and nine months to move that a portion of an 
 amended answer to an amended supplemental 
 complaint, setting up the statute of limitations 
 be stricken out, is good ground for denying the 
 motion. Sup. Ct., 1874, Servoss v. Wood, 1 Hun, 
 814. 
 
 1013. WTiere to be made. Where one mo- 
 tion is necessarily made and entitled in several 
 actions pending in different counties and judi- 
 cial districts, the provisioji of subd 4, sec. 401 of 
 the Code, requiring motions upon notice to be 
 made within the district in which the action 
 is triable, does not apply, but the practice is to 
 be determined under rule 97. Sup. Ct., 1874, 
 Phillips V. Wheeler, 2 Hun, 603. 
 
 1014. So held, where a sheriff moved, upon 
 notice to all judgment or attachment creditors in 
 actions pending in different districts, for direc- 
 tions as to the disposition of moneys collected by 
 sale of t he d ebtor's property. lb. 
 
 1016. "Where heard. Contested motions 
 should be heard, in the first instance, at the re- 
 gular Special Term, unless otherwise ordered by 
 the judge holding such term, but where such a 
 motion is noticed and argued by the parties, 
 without objection, before a judge at a trial term, 
 the irregularity will be waived. N. Y. Supr. Ct., 
 1870, Alayer v. Ap/el, 2 Sweeny, 729. 
 
 1016. 'The jurisdiction of the Special Terms 
 is not limited to cases arising in their own 
 counties, or even their own judicial district, 
 but they may hear and decide motions from any 
 part of the State. Sup. Ct., 1873, Rice v. Ehle, 
 46 How. 153 ; S. C, 65 Barb. 185. 
 
 1017. Regularly, a motion cannot be made 
 out of the district in which the place of trial is 
 laid, unless it be in a county of an adjoining 
 district; but it is competent for counsel to agree 
 that a motion may be heard and decided at any 
 Special Term in any county in the State, and 
 an order so made is reviewable, the same as if 
 made in the proper county. lb. 
 
 1018. The practice of reviewing, at one Spe- 
 cial Term, an order made at another Special 
 Term, or by another judge of the same court, 
 deprecated ; and the refusal of a judge to enter- 
 
PRACTICE. 
 
 625 
 
 tain a motion for that purpose sustained. N. Y. 
 Supr. Ct., 1870, Mayer v. Apfel, 2 Sweeny, 729. 
 S. P. Hallgarten v. Edfert, 1 Hun, 117. 
 
 1019. An issue of law raised by a demurrer 
 to the whole complaint must be tried in the 
 county designated in the complaint, or the 
 county to which the place of trial has been 
 changed. It cannot "be tried as a mere motion 
 at a Special Term in another county in the ju- 
 dicial district. Sup. Ct. Sp. T., 1874, Christy 
 V. Kiersted, 47 How. 467. 
 
 1020. Notice to appear. Actual notice to 
 defendant's attorney of a decision rendered 
 when he is present, overruling a preliminary ob- 
 jection to an order to show cause why his an- 
 swer should not be stricken out, and requiring 
 such defendant to appear on a subsequent day, 
 is sufficient to enable the plaintiff to take an 
 order, by default, striking out the answer, and a 
 judgment in his favor, in case the defendant 
 fails to appear on such subsequent day. N. Y. 
 C. P., 1870, Baker v. Stephens, 10 Abb. N. S. 1. 
 
 1021. To compel application of moneys. 
 The claim of a plaintiff, seeking, under sec. 
 198 of the Code, to have a deposit in the hands 
 of a sheriff applied to the satisfaction of his 
 debt, is strictissimi juris, to be clearly estab- 
 lished by proof ; and no intendments will be 
 made in its favor. Ct. App., 1871, Commercial 
 Warehouse Co. v. Graber, 46 N. Y. (6 Hand,) 
 393 ; Aff'g S. C, 2 Sweeny, 638. 
 
 1022. Where, after bail were accepted by a 
 deputy sheriff, one of them deposited with the 
 latter, at his request, a sum of money as securi- 
 ty to him that the bail would justify or the de- 
 fendant surrender himself ; — Held, that the 
 plaintiff could not have the money so deposited 
 applied on his judgment. Peckham and An- 
 DEEWS, JJ., dissent. lb. 
 
 1023. To open a default taken at term the 
 proper practice is on affidavit to apply to the 
 justice assigned to hear motions, and obtain a 
 stay of proceedings, and make a motion to be 
 relieved. Sup. Ct., 1871, Ramsey v. Gould, 4 Lans. 
 476. 
 
 1024. To set aside fraudulent stipulation. 
 A stipulation made by the attorneys of a plain- 
 tiff, without authority, but wilfully and corrupt- 
 ly and for a sum of money paid by defendant, 
 vacating an order of arrest under which the de- 
 fendant was held, may properly be set aside on 
 plaintiff's motion, made immediately upon dis- 
 covery of the fact; but without prejudice to 
 the sheriff, who was released by the order made 
 on such stipulation from all responsibility. Sup. 
 Ct., 1874, Seaver v. Moare, 1 Hun, 305. 
 
 1025. — order. A party aggrieved by an or- 
 der made by a judge out of court, has the right 
 to move the court to set it aside. The provis- 
 ion of sec. 350 of the Code, allowing such orders 
 to be entered and an appeal to be taken there- 
 from, does not take away the remedy by mo- 
 tion. Ct. App., 1872, West Side Bank v. Pugsley, 
 12 Abb. N. S. 28; S. C, 47 N. Y. (2 Sick.) 365 
 
 1026. Thus, an order made by a judge out of 
 court, in supplementary proceedings, requiring 
 an alleged debtor of the judgment debtor to pay 
 over the amount of the debt to the sheriff, may 
 be set aside by the court on motion, if errone- 
 ously granted. lb. 
 
 1027. The general rule that a party cannot 
 appeal from one judge to another of co-ordinate 
 jurisdiction, by a motion for relief from an or- 
 der or judgment against him, but must seek his 
 remedy in a. court of appellate jurisdiction, does 
 not apply where the order or judgment is void 
 for want of jurisdiction. He is not bound to. 
 
 40 
 
 appeal from a void order or judgment, but may 
 resist it and assert its invalidity at all times. 
 Geovee and Folgee, JJ., dissent, Ct. App., 
 1874, Kamp v. Kamp, 59 N. Y. {14 Sick.) 212 ; 
 Rev'g S. C., 37 N. Y. Supr. (5 J. & Sp.) 241. 
 
 1028. An order allowing alimony made upon 
 an application subsequent to a final decree of 
 divorce a vinculo, which made no provision 
 therefor, is void, and the defendant is not hra- 
 ited to an appeal therefrom, although he ap- 
 peared and opposed ; but, when proceedings 
 are taken to enforce it, he may move at Spe- 
 cial Term to have it set aside for want of juris- 
 diction, lb. 
 
 1029. — sale on execution. A sale on ex- 
 ecution of bank shares, the title to which is at 
 the time in litigation, and which had not been 
 legally attached at the commencement of the 
 action in which such execution was issued, is 
 irregular and void, and will be set aside on mo- 
 tion. Sup. Ct., 1872, Pardee v. Leitch, 6 Lans. 303. 
 
 1080. A motion to set aside such sale is the 
 proper and the only remedy given by law to a 
 party to the action, or to the representatives of 
 his rights and interests in the transaction. lb. 
 
 1031. — satisfaction. A settlement of a 
 suit made by the parties after verdict but be- 
 fore judgment, and a satisfaction entered in 
 pursuance thereof, will not be set aside on mo- 
 tion of the prevailing party, unless shown to 
 have been made coUusively and in fraud of his 
 rights. N. Y. C. P. Sp. T., 1872, Wade v. Orton, 
 12 Abb. N. S. 444. 
 
 1032. Effect of vacating orders. Where, 
 on the refusal of a party to obey an order re- 
 quiring him to make an affidavit to be used by 
 the adverse party on a motion, a further order 
 is made at the instance of such adverse party, 
 requiring him to make such affidavit and pro- 
 viding for his punishment in case of further dis- 
 obedience, the latter order, being based upon the 
 former, will fall with it in case the former is va- 
 cated for irregularity. Sup. Ct., 1874, Spratt v. 
 Huntington, 48 How. 97 ; S. C, 2 Hun, 841. 
 
 1033. Effect of reversal. If on appeal 
 from an order of the Special Term denying a 
 motion to set aside orders in supplementary 
 proceedings, the General Term reverses that or- 
 der, the original orders are not thereby vacated, 
 but they remain in force. Sup. Ct., 1872, Miller 
 V. Adams, 7 Lans. 131. 
 
 1034. What questions may be deter- 
 mined. The constitutionality of a statute on 
 which the plaintiff's right of action depends 
 will not be determined by the court upon the 
 hearing of a motion on affidavits. Sup. Ct. Sp. 
 T., 1871, Havemeyer v. Ingersoll, 12 Abb. N. S. 
 801. 
 
 1085. When a question arises whether a 
 pleading has been made and served according 
 to law and the practice of the court, e. g., 
 whether it should be verified or not, the correct 
 practice is, to give eitlier party the right to a 
 speedy and summary determination of the ques- 
 tion upon motion. Ct. App., 1873, Fredericks v. 
 Taylor, 14 Abb. N. S. 77 ; S. C, 52 N. Y. (7 
 Sick.) 596. 
 
 1036. Re-opening. An order made by a 
 judge at Chambers, peremptorily requiring par- 
 ties in whose favor an order has previously been 
 entered, exonerating them as bail, to appear be- 
 fore him for the purposes of a re-settlement, re- 
 opens such previous order, and until the entry 
 of another order upon the decision of the ap- 
 plication for a resettlement, there is no order in 
 force on the subject ; consequently, a motion to 
 vacate such re-opened order and have a new 
 
626 
 
 PRACTICE. 
 
 one entered is unnecessary. N. Y. Supr. Ct., 
 1872, Star Fire Ins. Co. v. Godet, 34 N. Y. Supr. 
 (2 J. & Sp.) 359. 
 
 1037. The refusal of the judge, on such ap- 
 plication, to disturb the order first entered, does 
 not restore it to life so that an appeal can be 
 taken from it, but for that purpose an actual 
 entry of an order in conformity to the decision 
 must be made, and a copy served. 
 
 1038. Renewal of motion. A special mo- 
 tion, such as one for the exoneration of bail, 
 cannot be renewed upon substantially the same 
 facts, without leave of court first obtained for 
 that purpose. N. Y. Supr. Ct., 1870, Hall v. Em- 
 mons, 2 Sweeny, 396. 
 
 1039. A motion which has once been denied 
 absolutely cannot be renewed as a matter of 
 right, unless upon a different state of facts subse- 
 quently arising ; but the court may deny a mo- 
 tion without prejudice, when it is apparent that 
 for some reason, the full merits have not been 
 heard, or it may subsequently for good cause 
 shown permit a renewal. Sup. Ct., 1875, Bank 
 of Havana v. Moore, 5 Hun, 624. 
 
 1040. Re-argument. If, after issues joined 
 in an action for divorce on the ground of adul- 
 tery, a reference to take proofs and report is 
 ordered, and on coming in of the referee's report 
 in favor of the defendant the court refuses to 
 confirm the same, and enters judgment for the 
 plaintiff without further trial of the issues, a 
 re-argument of tlie motion for confirmation may 
 properly be granted. N. Y. Supr. Ct. Sp. T., 
 1871, Merrill v. Merrill 11 Abb. N. S. 74. 
 
 1041. Reference. Upon a motion to vacate 
 a judgment ami discharge the defendant, the 
 court has ample power under sec. 271, of the 
 Code to appoint a referee to take proof as to a 
 material and controverted question of fact aris- 
 ing tliereon, such as whether the summons was 
 ever served on the defendant, and to direct him 
 to determine that question. N. Y. Supr. Ct. Sp. 
 T., 1872, Riley v. Brown, 44 How. 429. 
 
 1042. After the filing of the referee's report 
 in such a case, the plaintiff is entitled to eight 
 days after service of notice of such filing, within 
 which to file exceptions. A motion made to 
 confirm such report, without such filing and 
 notice will be dismissed as premature. lb. 
 
 1043. On a final hearing at Special Term, 
 after tlie filing of the report and exceptions taken 
 thereto, the court may allow the plaintiff's mo- 
 tion to set aside the report, and the defend- 
 ant's motion to confirm it, to be brought to a 
 hearing at the same time. lb. 
 
 1044. Restitution. If, pending an appeal to 
 the Court of Appeals from an order, on the 
 determination of which plaintiff's right to pro- 
 ceed against the defendants depends, he obtains 
 judgment against them in the court below and 
 collects it on execution, that court does not 
 thereby lose jurisdiction of the case, but on 
 reversal of the order on appeal, it may order 
 restitution, on motion made upon notice. N. Y. 
 Supr. Ct., 1871, Hall v. Emmons, 11 Abb. N. S. 
 435. 
 
 1045. Stay of proceedings. A stay of pro- 
 ceedings " until the further order of the court," 
 does not cease upon the mere decision of the 
 motion in connection with which it was granted, 
 but continues in force until the actual entry of a 
 further order. N. Y. C. P., 1869, Achroyd v. 
 Achroyd, 3 Daly, 38. 
 
 1046. Compulsory afSdavits. The stat- 
 utory provision for compelling persons to sup- 
 ply their afiidavits to a party making or oppos- 
 ing a motion, after they have refused to make 
 
 them voluntarily, is confined in terms to motions 
 made in a court of record, and has no applica- 
 tion to a motion before a judge for a mere ex 
 parte order. Sup. Ct., 1874, De Hart v. Hatch, 
 1 Hun, 238. 
 
 1047. There is no way in which a party to a suit 
 can interfere to prevent the adverse party pro- 
 curing an ex parte affidavit. If tliere is any 
 objection to the contents or mode of procuring 
 such affidavit, it must be made when the affidavit 
 is sought to be used. Sup. Ct., 1874, McOue v. 
 Tribune Association, 1 Hun, 469. 
 
 1048. After a witness has appeared and submit- 
 ted to an examination, it is too late for him to 
 move to set aside the order for his examination, 
 on the ground of tlie insufficiency of the affidavit 
 on which it was granted. lb. 
 
 1049. — of party. Before the enactment of 
 subd. 7, sec. 401, of the Code, a party could not 
 compel the adverse party to make an affidavit 
 to be used by the former on motion, nor can he 
 now do so, since that subd. does not modify 
 nor repeal the prohibition of sec. 389, tliat a 
 party shall not be examined on behalf of the 
 adverse party, except in the manner prescribed 
 by ch. 6 of the Code,, that is, as a witness in tlie 
 action. Sup. Ct., 1874, Spratt v. Huntington, 48 
 How. 341 ; S. C, 2 Hun, 97. S. P., Knoeppd v. 
 Kim/'s Co. Fire Ins. Co., 47 How. 412 ; Hodgskin 
 V. Atlantic ^ Pacific R. R. Co., 3 Daly, 70. 
 
 1050. Although a party may have the right to 
 take the affidavit of the adverse party to be 
 used on a motion, in a proper case, yet the court 
 will determine as to the propriety of the exam- 
 ination upon the circumstances of the particular 
 case. N. Y. Supr. Ct. Sp. T., 1873, Hudson Riv., 
 etc. R. R. Co. V. Kay, 14 Abb. N. S. 191. 
 
 1051. The power of the court, under sec. 401 
 of the Code, to appoint a referee to take the 
 affidavit of a party, the same as that of any 
 other witness, to be used upon a motion, is beyond 
 doubt. Sec. 389 of the Code no longer stands in 
 the way of such examination, if it ever did. N. 
 Y. Supr. Ct., 1873, Corkey v. Hurd, 45 How. 70 ; 
 S. C, 14 Abb. N. S. 183 ; 36 N. Y. Supr. (4. J. & 
 Sp.) 42; Rev'g S. C, 43 How. 140 ; 12 Abb. N. S. 
 307. 
 
 1052. The words " any person," as used in 
 subd. 7, sec. 401 of the Code, include parties as 
 well as other competent witnesses, and the facts 
 that the courts previous to the enactment thereof 
 possessed power to compel the examination of 
 any competent witness except a party, that no 
 exception of parties is made therein, that the 
 examinations provided for by sees. 389 and 401 
 respectively are for different purposes, and that 
 subd. 7 was enacted long after sec. 389, show 
 that it was intended to apply to parties as well 
 as other witnesses. S. C, 1873, 36 N. Y. Supr. 
 (4 J. & Sp.) 42. 
 
 1053. In order to entitle a party to an order 
 for the examination of the adverse party in such 
 a case, the necessity for such examination must 
 be made to appear by a statement of facts and 
 circumstances. lb. 
 
 1054. Motion papers. The moving papers 
 upon an application under subd. 7, sec. 401 of 
 the Code, to appoint a referee to take, for the 
 purposes of a motion, the affidavit of any per- 
 son who refuses to make an affidavit, should 
 show that the applicant intends to make or 
 oppose a motion ; also, that it is necessary for 
 such purpose to have the affidavit of such per- 
 s™, and that the latter has refused to make the 
 afBdavit. Sup. Ct. Sp. T., 1872, Erie Railway Co. 
 V. Gould, 14 Abb. N. S. 279. 
 
 I 1056. The party who makes the application 
 
PRESCRIPTION— PRINCIPAL AND AGENT. 
 
 627 
 
 should know or be advised what sort of an affi- 
 davit is necessary, and that it can be made by 
 the person he names ; and it is apparent that 
 before such person can refuse to make it, the 
 same should be drawn and presented to him with 
 a request that he sign and swear to it, unless, on 
 being applied to, he refuses to mal^e any affi- 
 davit at all. lb. 
 
 1056. The refusal of the person whose affidavit 
 is desired to submit to an oral examination 
 for the purpose of drawing up sucli an affidavit, 
 is not sufficient to authorize the appointment of 
 a referee. Tlie statute does not authorize a 
 general examination, with cross-examination, 
 even before a referee in such a case. lb. 
 
 PRESCRIPTION. 
 
 1. In general. At common law, title by pre- 
 scription was restricted to sucli rights as might 
 be created by a grant, and must be consistent 
 with the presumption of a grant ; and in a case 
 where, by law, no grant of the right could ever 
 have been rightfully made, the presumption 
 must be tliat the party holds by such right only 
 as might lawfully have been obtained. Sup. Ct., 
 1871, Burbank v. Fay, 6 Lans. 397. 
 
 2. Inasmuch as no grant of any portion of the 
 canals of the State, or of the right to construct 
 and permanently maintain any basin on any 
 canal can be presumed, parties who have used 
 waters of the Erie canal for a private basin, for 
 more than 40 years, and located mills on it, the 
 use of which depended on communication with 
 the canal by such basin, cannot maintain a 
 prescriptive right to such use, but must be 
 presumed to have been taken originally under 
 a canal commissioner, and subject to the limita- 
 tions imposed by law. lb. 
 
 3. Right by. A finding that by agreement 
 between owners of adjoining lands, a well on 
 the land of one of them had been owned and 
 used in common by such adjoining owners and 
 their successors in title for many years, under 
 claim of right, establishes a mere license, and 
 will not sustain a finding that the one whose 
 land did not embrace the well had acquired a 
 right therein by prescription, since permiss'on 
 destroys the effect of the user. Sup. Ct., 1872, 
 Applegate v. Morse, T Lans. 59. 
 
 . PRESENTMENT. 
 See Bii,L8 AUD Notes. 
 
 PRESUMPTION. 
 See EviDENOE. 
 
 PRINCIPAI, AND AGENT. 
 1 Agenct, what is ; and how tebmik- 
 
 ATED 627 
 
 II. Authority; when pkincipal bound. 628 
 
 in. Ratification 632 
 
 IV. Agent's liabiwtt to thikd pabties. 633 
 
 V. Duty and liability to principal 633 
 
 L Agency, what is ; and how terminated. 
 ' 1. Apparent agency. Where A went to 
 
 •B's factory and selected a log for a particular 
 job, and left, saying lie " would send a man for 
 it," but afterward relinquished the job, and 
 told C, who undertook to do it, that he could get 
 a suitable log at B's factory, and C thereupon 
 went there and said, " I want the log A select- 
 ed," and on such request obtained and used it 
 for his own benefit, — Held, that A had by such 
 acts held C out as his agent, and rendered him- 
 self liable for the log. N. Y. C. P., 1870, Ripley 
 v. Cochran, 10 Abb. N. S. 52. 
 
 2. A principal, who sends an agent here from 
 a foreign country with seven large tirunks full of 
 goods for exhibition and sale, and with letters 
 to his correspondent in this country asking his 
 advice and assistance to the agent in the prose- 
 cution of his business, thereby confers upon the 
 agent apparent authority to hire suitable prem- 
 ises for the storage and display of the goods, and 
 the principal will be liable for the rent thereof. 
 Sup. Ct., 1872, Tucker v. Woolsey, 6 Lans. 482 ; 
 S. C, 64 Barb. 142. 
 
 3. No authority can be implied from those 
 facts for an advancement of money by the cor- 
 respondent to the agent, on the credit of the 
 principal, even though the latter may have ap- 
 proved of an advance made for the payment of 
 duties. lb. 
 
 4. Implied authority. If a horse gets his 
 leg broken while in the possession of a mere 
 gratuitous bailee, and the bailor is at a distance, 
 the bailee has an implied authority to contract 
 in his behalf with a competent farrier, for the 
 keeping and care of the horse, and to bind his 
 principal by such contract ; at least, until the 
 latter has notice of the injury, and time and 
 opportunity to make other provisions for the 
 animal. Sup. Ct., 1873, Barter v. Blanchard, 64 
 Barb. 617. 
 
 5. For sale of commodity. Where one 
 party to a contract agreed thereby " to let the 
 agency " to the other for the sale of his ale at a 
 certain place, on condition that the latter should 
 pay "on the first of each and every month for 
 the amount of ale delivered," he not to purchase 
 any other ale, and no allowance to be made for 
 that which soured, — Held, that the relation of 
 the parties was not that of principal and agent, 
 but of vendor and vendee. Ct. App., 1874, 
 McKechnie v. Ward, 58N. Y. (13 Sick.) 541. 
 
 6. Termination. An agency to transact 
 business for an individual is terminated by the 
 formation of a co-partnership, of which such 
 individual becomes a member, and the agent 
 cannot, without new authority, act for and bind 
 the firm. Ct. App., 1870, Hoppock v. Moses, 43 
 How. 201. 
 
 7. The dissolution of a firm which held an 
 agency, by the death of one of its members or 
 otherwise, terminates the agency, and the sur- 
 vivor can do no further business therein. Sup. 
 Ct., 1872, Marline v. International Life Assurance 
 Society of London, 5 Lans. 535 ; S. C., 62 Barb. 
 181 ; Affi'd, S. C, 53 N. Y. (8 Sick.) 339. 
 
 8. Where L carried on mercantile business at 
 G, and permitted his brother H to carry on Uke 
 business in his name at M, and to purchase goods 
 on his credit for that store, and upon the destruc- 
 tion of the latter store by fire the agency was re- 
 voked, and no act was afterward done by Ltend- 
 ing to show that H had power to act as his agent, 
 — Held, that parties who had previously sold 
 goods to H on L's credit, but had closed up and 
 collected their account with L, by suit, after the 
 fire, of which they had knowledge, were in good 
 faith bound to inquire into the authority of H 
 to act for L when proposing to purchase on his 
 
628 
 
 PRINCIPAL AND AGENT. 
 
 credit more than two years afterward, and could 
 not hold L if the agency was in fact terminatecf 
 Sup. Ct., 1875, Cicrflin v. Lenheim, 5 Hun, 209. 
 
 9. Knowledge that the store in which the busi- 
 ness was carried on was destroyed by fire was 
 equivalent to notice that the agent could no 
 longer bind his principal by new purchases, 
 without new authority. lb. 
 
 n. Adthokitt; when principal eottnd. 
 
 10. In general. Written instruments creat- 
 ing a power must be strictly construed, and the 
 authority not extended beyond that given in 
 terms, or what is absolutely necessary to carry 
 the authority so given into effect. N. Y. Supr. 
 Ct., 1872, Filleyr v. Oilman, 34 IN. Y. Supr. (2 
 J. & Sp.) 339. 
 
 11. A power of attorney to have, demand and 
 receive from any person holding it, money or 
 other property belonging to the principals as heirs 
 of a deceased person, does not authorize the 
 agent to sell and indorse a draft received by 
 him under such power. lb. 
 
 12. Joint authority. Where authority to act 
 in a matter of a private nature is conferred by 
 the principal upon several persons, they must, 
 as a general rule, all act in the execution of the 
 power, unless the terms of the authority permit 
 it to be exercised by them severally, or by a 
 majority or other number ; but where the power 
 is exercised by part of them, under circum- 
 stances justifying the inference that the princi- 
 pal intended that they might so act, he is bound 
 by their acts. Ct. App., 1873, Haioleij v. Keeler, 
 53 N. Y. (8 Sick.) 114; AfE'g S. C, 62 Barb. 231. 
 
 13. To act in particular matter. An au- 
 thority to an agent to act for his principal " in 
 any stock transactions " with a particular firm, 
 does not authorize him to direct the sale of se- 
 curities previously pledged to such firm in be- 
 half of his principal, to secure the margins upon 
 his stock operations. Ct. App., 1872, Porter v. 
 Parks, 49 N. Y. (4 Sick.) 564. 
 
 14. To buy and sell gold, stocks, &c. 
 Under a written power of attorney authorizing 
 the agent " to buy, sell, assign and transfer in 
 his discretion, gold, stocks," etc., and to execute 
 and deliver all " instruments in writing, which 
 shall or may in his discretion be necessary in 
 the conducting, carrying on and transacting " 
 that business, and to " do and perform all and 
 every act and thing requisite and necessary to 
 be done in and about tlie premises," etc., the 
 principal is bound by an authority, given by his 
 agent to brokers carrying stocks for him on a 
 margin, to sell them without notice whenever 
 the margin should fall below five per cent. N. 
 Y. Supr. Ct., 1874, Wicks v. Hatch, 38 N. Y. 
 Supr. (6 J. & Sp.) 95. 
 
 15. To collect and settle. An authority 
 given by a carrier to collect and settle for his 
 freight, does not authorize the agent to admit 
 that there is a shortage, and settle for that. 
 Com. App., 1873, Bissel v. Campbell, 54 N. Y. 
 (9 Sick.) 353. 
 
 16. To exchange lands, A power of attor- 
 ney to sell and exchange, for such price and on 
 such terms as to the attorney shall seem meet, 
 certain specified lands, does not authorize the 
 attorney to agree, on selling a part of such lands, 
 that certain other lands of his principal not in 
 his charge shall be exchanged for lands of the 
 purchaser, and the difference to be paid by his 
 principal shall be taken as a payment on the 
 purchase-money of the lands specified in the 
 power ; and the principal will not be bound by 
 
 such a contract. N. Y. Supr. Ct., 1873, Taylor 
 V. Hoey, 36 N. Y. Supr. (4 J. & Sp.) 402. 
 
 17. i?he execution of a deed by the principal 
 at the attorney's request of the property so 
 agreed to be exchanged, without a full knowl- 
 edge of the bargain made by the attorney does 
 not ratify such bargain. lb. 
 
 18. To loan money. The mere fact that an 
 attorney, who is authorized to loan money for 
 his principal on unincumbered real estate, is 
 also agent for another party holding a mortgage 
 on property on which he proposes to grant a 
 loan, and has such mortgage in his possession, 
 does not make him the agent of the former to 
 clear the title of such prior incumbrance ; but if 
 he undertakes to do so out of the loan granted 
 by him, he does it as agent for the mortgagor 
 and he alone is liable to the mortgagor for a 
 misapplication of the money retained for that 
 purpose. N. Y. Supr. Ct., 1873, Fink v. Allen, 
 36 N. Y. Supr. (4 J. & Sp.) 350. 
 
 19. To manage business. A power of at- 
 torney authorizing the agent to do anil perform 
 all necessary acts in and about the management 
 of the business of his principal, with full power 
 and authority in the premises, followed by his 
 being left in complete charge and control of 
 such business with directions to carry it on in 
 the absence of the principal, shows an intention 
 to confer sufficient power to make and meet 
 business engagements, and to have the absolute 
 control and disposition of the moneys of the 
 principal in his absence ; and he should be pro- 
 tected for acts done by him in such business, in 
 good faith, after the death of the principal but 
 before knowledge thereof. N. Y. C. P., Sp. T., 
 1874, Reid v. Bank ofN. Y. Nat. Bkg. Associa- 
 tion, 47 How. 358. 
 
 20. To pay assessment. An authority to 
 an agent to pay an assessment on his land, at 
 the agent's discretion, does not authorize the 
 agent to bind his principal by a promise of fu- 
 ture payment. Sup. Ct., 1874, Remington v. 
 Palmer, 1 Hun, 619 ; Eev'd by Ct. App. 
 
 21. To procure insurance. An agent hay- 
 ing authority to procure a policy of insurance 
 for his principal, has implied authority to modify 
 or surrender it for cancellation, and if he does 
 direct its cancellation, even though by mistake, 
 his principal is bound thereby. Sup. Ct., 1875, 
 Standard Oil Co. v. Triumph Ins. Co., 3 Hun, 591. 
 
 22. To receive interest. Merely entrusting 
 a note payable to the order of the payee, and 
 not indorsed by him, to an agent, with authority 
 to receive the interest and take a new note with 
 an indorser for the principal, doe^ not confer 
 upon him apparent authority to receive payment 
 of the principal sum in money, so as to bind the 
 payee. Ct. App., 1872, DouUeday v. Kress, 50 
 N. Y. (5 Sick.) 410 ; Eev'g S. C, 60 Barb. 181. 
 
 23. To sell note. A special agent autliorized 
 to sell a note, in the absence of any limitation 
 of his authority, has power to bind his principal 
 by a guaranty that the note is good and col- 
 lectible. Sup. Ct., 1872, Lossee v. Williams, 6 
 Lans. 228. 
 
 24. To sell, &c., property. A power of at- 
 torney to sell, assign, transfer, pledge, mortgage, 
 lease and convey, and to make contracts for the 
 sale of all or any estate, &c., with the usual 
 general power, does not authorize the agent Ijo 
 retain, consult and employ counsel, except so 
 far as may be necessary to prepare such instru- 
 ments of conveyance, &c., as it authorizes him 
 to execute. N. Y. Supr. Ct., 1873, Harnett v. 
 Garvey, 36 N. Y. Supr. (4 J. & Sp.) 326. 
 
 25. To ship goods. An agent authorizeji to 
 
PRINCIPAL AND AGENT. 
 
 629 
 
 ship goods by a carrier has power to make a 
 special contract with the carrier as to his re- 
 sponsibility. N. Y. Supr. Ct., 1871, Knell v. V. 
 S. and Brazil Steamship Co., 83 N. Y. Supr. (1 J. 
 & Sp.) 423. S. P., Shekon v. Merch. Desp. Trans. 
 Co., 59 N. Y. (14 Sick.) 258. 
 
 26. The consignor of goods to a distant owner 
 as consignee, must be deemed the agent of the 
 consignee for the purpose of shipping and con- 
 signing tlie goods, so far tliat he may bind the 
 latter by a special contract entered into with the 
 carrier. Com. App., 1872, Nelson v. Hudson Riv. 
 R. R. Co., 48 N. Y. (3 Sick.) 498. 
 
 27. Accordingly, where tlie purchaser of a 
 mirror directed the vendor to deliver it to a 
 railroad company named, for transportation to 
 him, — Held, that the vendor had authority, upon 
 the company's refusing to receive and transport 
 it upon any otlier terms at tariff rates, to sign a 
 contract releasing such company from all liabili- 
 ty for loss by breakage, except suoli as might 
 be caused by negligent collision or running from 
 the track. lb. 
 
 28. Acts after termination of agency. 
 The refusal of one holding securities for a loan, 
 to deliver them to an agent entrusted specially 
 with funds to redeem them, without the pay- 
 ment of another claim as to which such agent 
 had no authority, raises a presumption, after a 
 reasonable time for communication with the 
 principal, of the revocation of the agency ; and 
 if he afterward parts with the securities to such 
 agent, he does so at his peril. N. Y Supr. Ct., 
 1869, Kip V. Howes, 2 Sweeny, 106. 
 
 29. A principal, who has had an agent for a 
 long time employed in carrying on a lumber 
 business, is liable to one who, having no notice 
 of the termination of the agency, sells lumber to 
 such agent after such agency has ceased. Sup. 
 Ct., 1874, Kerslake v. Schoanmaker, 1 Hun, 436. 
 
 30. Acts of assumed agent. An agency 
 cannot be created by any representations of an 
 assumed agent. Accordingly, — Held, that a 
 general agent for a firm could not, by assuming 
 to be the agent of an individual member of the 
 firm, bind him by. his contracts. Ct. App., 1873, 
 Marvinv. Wilber, 52 N. Y. (7 Sick.) 270. 
 
 31. Acts in excess of authority. The 
 act of an agent within the general scope of his 
 employment, but in excess of his authority, does 
 not bind the principal to the person affected by 
 such act, even though he rightfully believed 
 that the agent was acting within his authority, 
 unless such person will sustain some loss, if the 
 principal is not bound. Sup. Ct., 1874, Downer 
 V. Carpenter, 1 Hun, 591. 
 
 32. A husband who authorized his wife to 
 write his name on the back of a note proposed 
 to be given by his son, a minor, for a particular 
 purpose, but said he would not be a maker or 
 sign a joint note, is not bound by the act of his 
 wife, in his absence, in signing his name to a 
 note as joint maker with the son. Sup. Ct, 
 1875, Cuyler v. Merrifield, 5 Hun, 559. 
 
 33. A letter from the husband to the holder of 
 the note, after its maturity, stating that it was 
 so signed without authority, and that his son 
 was good, and would do what was right as soon 
 as he could dispose of his crop, does not amount 
 to a ratification. lb. 
 
 34. An agent of a firm engaged in the for- 
 warding business, who is authorized to make 
 contracts and sign receipts in the ordinary 
 course of business, may, as regards third parties 
 who have no notice of any limitation upon his 
 authority, bind his principals by a special con- 
 tract, as, a contract to forward by a particular 
 
 vessel. Com. App., 1871, Goodrich v. Thompson, 
 44 N. Y. (5 Hand,) 324 ; Aff'g S. C, 4 Eob. 75. 
 
 35. A banker' who employs another to sell 
 drafts for him, giving him specific instructions 
 by which he is directed to draw his own drafts 
 on the correspondents of the principal, and 
 report, " such drafts are to be covered with us 
 in funds par in N. Y. and will then be duly 
 advised for protection by our regular advices," 
 is liable on a draft issued by the agent, although 
 he did not turn over the money received to his 
 principal. Sup. Ct., 1874, Engh v. Oreenbaum, 2 
 Hun, 136. 
 
 36. Any restrictions, negative or affirmative, 
 may be placed upon the authority of a special or 
 limited agent; and the principal will only be 
 bound by the acts of such agent within his au- 
 thority. Com. App., 1870, City Bank v. Rome, 
 Watertown and Ogdensburg R. 6,. Co., 44 N. Y. (5 
 Hand,) 136. 
 
 37. Check dra-wn -without considera- 
 tion. A firm who permit and authorize their 
 agent to draw checks in the firm name in the 
 regular course of business, are hable to a bona 
 fide holder of a check drawn by him, though 
 without consideration and in a matter not con- 
 nected with the firm business. N. Y. C. P., 1872, 
 Lewis V. Woods, 4 Daly, 241. 
 
 38. Contracts by agent. A principal, 
 whether disclosed or not, is liable upon the eon- 
 tracts of his agent within the limits of his au- 
 thority, unless credit is given exclusively to the 
 agent. Com. App., 1871, Meeker v. Glaghorn, 44 
 N. Y. (5 Hand,) 349. 
 
 39. Where the principal claims exemption 
 upon that ground, the burden is upon him to 
 show that fact, and the proof must be clear and 
 positive. lb. 
 
 40. One who sells goods to another on credit, 
 supposing that he is dealing with a principal, 
 can resort to the principal on discovering that 
 the one with whom he dealt was merely an 
 agent ; but, if he voluntarily and without fraud 
 selects the agent as his debtor, knowing at the 
 time who the principal is, he cannot afterward 
 resort to the latter. Sup. Ct., 1875, Burdiri v. 
 Williamson, 6 Hun, 560. 
 
 41. A party contracting with an agent is not 
 concluded from resorting to the principal, unless 
 it distinctly appears that, with full knowledge 
 of all the facts, he elected to take the sole re- 
 sponsibility of the agent, and designed to aban- 
 don any claim against the principal. Ct. App., 
 1873, Coleman v. First National Bank of Elmira, 
 53 N. Y. (8 Sick.) 388. 
 
 42. Where a sum of money was paid over the 
 counter of a bank to its teller, with a statement 
 that the owner wished to leave it with the 
 bank, and the teller made out a certificate there- 
 for, not in the name of the bank, but of its pres- 
 ident individually, whose name was not men- 
 tioned, and who was not present nor known to 
 the depositor, which certificate was received by 
 the latter without examination, — Held, that the 
 bank was liable therefor. lb. 
 
 43. Where an agent purchases goods for his 
 principal, whose name he discloses, and at the 
 same time authorizes the vendor to charge 
 them either to him or to the principal, and he, 
 not knowing the principal, charges them to the 
 agent, the liability of the principal depends 
 upon the question whether the vendor gave 
 exclusive credit to the agent, and that is a ques- 
 tion for the jury. Sup. Ct., ISJb.Maryland Coal 
 Co. V. Edwards, 4 Hun, 432. 
 
 44. The decisions in this State that an un- 
 named and undisclosed principal, for whom a 
 
630 
 
 PRINCIPAL AND AGENT. 
 
 contract in writing but not under seal has been 
 made by a person apparently acting in his own 
 name and on his own behalf, may sue and be 
 sued thereon, do not apply to the case of a con- 
 tract under seal for the conveyance of real 
 estate ; and sucli principal cannot be made liable 
 for a breach of such a contract, nor be compelled 
 to perform it specifically, nor can he enforce it. 
 N. Y. Supr. Ctr, 1875, Briggs v. Partridge, 39 N. 
 y. Supr. (7 J. & Sp.) 339. 
 
 45. An agent who is accustomed, with the 
 knowledge of his principal, to make contracts 
 for him, may bind the latter by contracts made 
 without his knowledge, although in violation of 
 his instructions. Sup. Ct., 1875, Kelly v. Fall 
 Brook Coal Co., 4 Hun, 261. 
 
 46. An authority given to an insurance agent 
 to " bind the company during the correspon- 
 dence," means, until the company shall decide 
 whether or not it will take the risk and shall 
 inform the applicant of tlieir decision ; and 
 wliere, through tlie negligence of the agent, or 
 otlier cause except the fault of the applicant, 
 tlie appHcation is not received by the" company 
 until after a loss occurs, the company will still 
 be liable. Com. App., 1871, Fish v. Cottenet, 44 
 N. Y. (6 Hand,) 538. 
 
 47. One who permits another to carry on a 
 business in his name, though he has no benefi- 
 cial interest therein, is liable for the purchase- 
 price of goods bought for the purposes of such 
 business. Com. App., 1872, Ferris v. Kilmer, 48 
 N. Y. (3 Sick.) 300 ; Kev'g S. C, 47 Barb. 411. 
 
 48. A railroad company is not bound by a 
 contract to transport goods beyond the terminus 
 of its line, made by a local station agent, unless 
 he had express authority to make it, or the mak- 
 ing of such contracts has become an established 
 business of the road by the custom of those hav- 
 ing the general authority. Sup. Ct., 1871, Wait 
 V. Albany ^ Susq. R. R. Co., 5 Lans. 475. 
 
 49. A consent to the settlement of a claim 
 under such a contract does not amount to a rati- 
 fication thereof, unless there was an intent to 
 ratify. lb. 
 
 50. Custom. Where a custom is shown to exist 
 as to agencies for coal, that the agent cannot 
 make a time contract, unless specially authorized, 
 a person making a time contract with such an 
 agent must be presumed to have done so with 
 reference to such custom, and it is incumbent 
 upon him to ascertain whether the agent was 
 authorized to make the sale ; and If he fails to 
 do so, and the agent had in fact no such authority, 
 the principal is not liable. Sup. Ct., 1875, White 
 v. Fuller, 4 Hun, 631. 
 
 51. Declarations made by an agent in re- 
 spect to acts done within the scope of his au- 
 thority, bind his principal, his authority being 
 otherwise established by competent evidence. 
 Sup. Ct., 1875, McArthur v. Soule, 5 Hun, 63. 
 
 52. Fraud of agent. A wife who entrusts 
 her business as to her separate estate to her hus- 
 band as lier general agent, is chargeable with 
 his knowledge and liable for his fraud in such 
 business. Brooklyn City Ct. Sp. T., 1873, Du 
 Flon V. Powers, 14 Abb. N. S. 391. 
 
 53. A married woman who entrusts her prop- 
 erty to her husband as her agent, is bound by 
 his frauds and omissions in respect to it, and 
 cannot take advantage of his wrong doing and 
 neglect to fasten liabilities upon innocent third 
 parties. N. Y. Supr. Ct., 1874, Adams v. Mills, 
 38 N. Y. Supr. (6 J. & Sp.) 16; Aff'd, S. C, 60 
 N. Y. (1,6 Sick.) 538. 
 
 54. Where a husband endeavors by fraud, to 
 create a liability in favor of his wife for money 
 
 loaned, against a manufacturing corporation of 
 which he is the secretary and also trustee, she 
 cannot enforce her claim against other trustees 
 for a failure to file their annual report, her hus- 
 band and agent being equally guilty of that ne- 
 glect, lb. 
 
 55. If a person colludes with an agent to cheat 
 the principal, the latter is not responsible for the 
 acts or knowledge of the agent. The law charges 
 the principal with the knowledge of the agent 
 only for the protection of innocent third persons. 
 Ct. App., 1873, Nat. Life Ins. Co. of U. S. v. 
 Minch, 53 N. Y. (8 Sick.) 144 ; Eev'g S. C, 6 
 Lans. 100. 
 
 56. If a husband, by fraudulent representa- 
 tions or conspiracy with the agent of an insur- 
 ance company, procures an insurance on the life 
 of his wife in her name, he cannot, as her ad- 
 ministrator, retain the money received on the 
 policy, but is liable to the company therefor. lb. 
 
 67. A married woman is liable for a fraud com- 
 mitted by herself or by her husband as her 
 agent, in dealing with her separate property, to 
 the same extent as persons sui juris ; but a mere 
 prior assent, advice or authorization by a wife, 
 or passive acquiescence at the time, does not 
 make her liable for the tort of her husband, if 
 she does not participate as an actor, or is not pro- 
 fited or benefited as to her separate estate there- 
 by. Ct. App., 1874, Vanneman v. Powers, 56 N. 
 Y. (11 Sick.) 39; Bev'g S. C, 7 Lans. 181. 
 
 58. If a broker, on being notified by other 
 brokers that they have certain bonds which they 
 wish to sell, and requested to find a purchaser 
 for them, sends his messenger to make inquiries, 
 and such messenger subsequently returns with 
 a letter from such broker oflering a certain 
 price, and the messenger remarks that it is the 
 best price obtainable, and the holders thereupon 
 close the trade at that price, receiving the brok- 
 er's check for the price, when in fact such broker 
 had already closed a bargain for the sale of the 
 bonds at 15 per cent, more than he gave, the 
 sellers can recover from him such 15 per cent, 
 on the ground of the fraud of his agent. Sup. 
 Ct., 1873, Taylor v. Guest, 46 How. 276; Eev'd, 
 S. C, 58N. Y. (13 Sick.) 262. 
 
 69. Guaranty by agent. An agent, merely 
 employed by commission merchants to solicit, 
 obtain and ship to them produce to be sold by 
 them on commission, cannot bind them by a 
 guaranty that butter so shipped shall bring a 
 certain price per pound, made without their 
 knowledge and without special authority from 
 them to make it. Sup. Ct., 1875, Quinn v. Carr, 
 4 Hun, 259. 
 
 60. Negligence. of agent. Although a prin- 
 cipal may not be liable criminally for the negli- 
 gence of his agent, in a case where the agent 
 might be so, yet there can be no doubt of his 
 liability in a civil suit, in which the act of the 
 agent is to be regarded as the act of the princi- 
 pal. Sup. Ct., 1872, Barney v. Burstenbinder, 7 
 Lans. 210 ; §. C, 64 Barb. 212. 
 
 61. WhefS* goods shipped to a purchaser on 
 his order, were returned by him on account of a 
 deficiency in quantity, and the seller refused to 
 receive them back, and instructed his shipping 
 clerk not to do so, but a carman in his employ 
 and having general authority to receive all goods 
 directed to him, took them from the railroad de- 
 pot and gave a receipt therefor, and being 
 directed by the seller to take them back, ne- 
 glected to do so, and they were lost, — Held, that 
 the carman was the agent of the seller, and 
 his possession was that of the seller, and the 
 latter was liable to the purchaser for the price 
 
PRINCIPAL AND AGENT. 
 
 631 
 
 paid for such goods. Ct App., 1874, Purcell v. 
 Jaycox, 59 N. Y. (14 Sick.) 288. 
 
 62. If the owner of logs places them in a river 
 and contracts with other parties to run them 
 down, he is liable for injury done hy such logs 
 to a bridge on the stream below, although caused 
 by the negligence of the contractors. Sup. Ct., 
 1876, Town of Pierrepont v. Lovelass, 4 Han, 696. 
 
 63. ITotice to agent. Where one acting as 
 the attorney for both mortgagor and mortgagee,, 
 in procuring a loan upon lands sold in a partition 
 proceeding, had, as attorney for one of the par- 
 ties in such proceeding, concocted a scheme for 
 prfeventing competition at the sale, of wliicli the 
 procuring of a subsequent loan was part, — Held, 
 that the mortgagees were by reason of the knowl- 
 edge of such attorney, chargeable with con- 
 structive notice of the fraud. Ct. App., 1873, 
 Howell V. Mills, 53 N. Y. (8 Sick.) 322. 
 
 64. Notice of the rescission of a contract, given 
 to an agent of one of the parties, authorized to 
 stand in the place of or represent him in his 
 business, or in the particular branch of it con- 
 nected with the subject-matter of the contract, 
 Is sufficient, and will bind tlie principal, though 
 not brought home to him. Ct. App., 1870, Dil- 
 lon V. Anderson, 43 N. Y. (4 Hand,) 231. 
 
 65. Note by agent. Where an agent, acl> 
 ing within the general scope of his apparent au- 
 thority, purchases personal property for his 
 principal, which is received'by the principal, and 
 gives a note therefor signed by himself as agent 
 without naming his principal, tlie latter is liable 
 thereon to a bona fide holder, even tliougli the 
 agent's instructions may have prohibited his 
 giving notes. Sup. Ct., 1871, Hilderb-ant v. 
 Crawford, 6 Lans. 502. 
 
 66. The receipt of the property by the princi- 
 pal rendered him liable for the value thereof, 
 and in an action against him therefor, counting 
 on the indebtedness as well as on the note, it 
 would be at least evidence of such value. lb. 
 
 67. Where an agent, in the transaction of the 
 business of his agency, makes a note or other 
 written instrument and signs his own name 
 thereto, adding the word "agent," tlie principal 
 will be bound thereby. Sup. Ct., 1874, Green v. 
 Skeel, 2 Hun, 485. 
 
 68. Where two persons who have previously 
 been engaged in mercantile business under a 
 firm name, undertake the management of a 
 plantation, making a new agreement that one 
 shall furnish all the capital and the other man- 
 age the business, and take one-third of the 
 profits for his compensation, the latter cannot 
 bind the former by a note executed in the name 
 of the old firm without express' authority, for 
 moneys borrowed ostensibly for use, in carrying 
 on the plantation, especially when it was not 
 needed to be used and was not in fact used for 
 that purpose, but was applied to the agent's own 
 use. Sup. Ct., 1872, Hunt v. Chapin, 6 Lans. 139. 
 
 69. Payment to agent. Where one who, 
 though acting simply as broker, was permitted 
 by his principals to transact business at the desk 
 of the latter as a clerk or member of the firm, 
 and also, after a sale made, to present the evi- 
 dences of title of the property sold, and the 
 price bill of the same made out under a printed 
 bill-head used by the firm, to a purchaser who 
 was ignorant of the special capacity in which 
 guch broker acted, — Held, that a payment to the 
 latter would bind his principals. N. Y. Supr. Ct., 
 1869, Talmage v. Nevins, 2 Sweeny, 38. 
 
 70. Merely leaving a promissory note in the 
 hands of an agent, unindorsed, does not confer 
 upon him apparent authority to receive pay- 
 
 ments thereon ; but if the principal, having no- 
 tice that a payment has been made to such 
 agent, remains silent, leaving the money in his 
 hands, for three years, and then writes him 
 about it, and in computing the amount due 
 allows such payment, and does not notify the 
 maker of the note of the agent's lack of author- 
 ity, he ratifies the payment, and confers appa- 
 rent autliority to make other payments to him. 
 Sup. Ct., 1874, Wardrop v. Dunlop, 1 Hun, 825 ; 
 Aff'd by Ct. App. 
 
 71. Purchase on credit. Where the de- 
 fendants, having employed B to repair a dock 
 for them, they furnishing materials, informed the 
 plaintiffs, from whom, as lumber dealers, B had 
 ordered timber for tliat purpose, that they had 
 so contracted and if plaintiff would furnisli the 
 timber they would pay for it, — Held, that de- 
 fendants thereby made B their agent to deter- 
 mine the amount of lumber needed for the pur- 
 pose specified, and tlie plaintiffs were not bound 
 to see that it was applied to that purpose, but, 
 in the absence of notice from the defendants 
 that B's agency had ceased, or that the quan- 
 tity of lumber needed under that contract was 
 received, they were liable for timber furnished 
 to B and used by him in building a new dock 
 for the defendants, under a subsequent contract, 
 although tliey had paid him in full therefor. 
 Sup. Ct., 1874, Marsh v. Gilbert, 2 Hun, 58. 
 
 72. Where a person employed as an agent for 
 the purchase of cheese, and introduced as such 
 by his principals, but instructed to purcliase for 
 cash only, and furnished with funds for that 
 purpose, purchases cheese for tliem of a manu- 
 facturer, who has no notice of the limitation of 
 his authority, but ships the cheese to the princi- 
 pals, giving credit only to them, they are liable 
 to him for the price if their agent fails to pay 
 therefor, or his checks given for the prioe are 
 dishonored. Ct. App. , 1874, If orey v. Webb, 58 
 N. Y. {13 Sick.) 350 ; Aff'g S. C, 65 Barb. 22. 
 
 73. Where, in sucli a case, it appears that no 
 credit was stipulated for, but the agent had been 
 accustomed to buy large lots at a time and 
 shipping to his principals as received, before 
 the price was or could be conveniently ascer- 
 tained, and before it was actually paid, and that 
 the principals were aware of that course of deal- 
 ing and acquiesced in it, — Held, that they were 
 liable for cheese purchased and shipped to them 
 in pursuance of that course of dealing. lb. 
 
 74. Purchase for new firm. An agent, 
 who is authorized and has been accustomed to 
 purchase goods in the name of a third party, 
 cannot bind such third party by a purchase of 
 goods from the same vendors in the name of a 
 copartnership of which he states his former 
 principal is a member, but such a purchase is 
 legal notice of the termination of his agency. 
 Ct. App., 1870, Hoppock V. Moses, 43 How. 201. 
 
 75. Receipt of goods. An agent, author- 
 ized simply to demand and receive a certain 
 number of bales of cotton from a common car- 
 rier, cannot bind his principal by accepting, in 
 common with other claimants, cotton not iden- 
 tified as belonging to his principal as a delivery. 
 Ct. App., 1872, Whitin v. Pendegast, 50 N. Y. 
 (5 Sick.) 674. 
 
 76. Representations by agent. One of 
 the projectors of an oil company, who had 
 agreed to take an amount of its stock, having 
 employed another person to sell stock of the 
 company or to procure subscriptions therefor, 
 — Held, that if sales made by such person were 
 intended to be of the stock which his employer 
 had agreed to take, the company was not liable 
 
632 
 
 PRINCIPAL AND AGENT. 
 
 on representations made by him ; and tlie evi- 
 dence being conflicting as to whetlier or not 
 suoii employer liad any authority to sell or em- 
 ploy another to sell tlie company's stock, the 
 question should hare been left to the jury./ Ct. 
 App., 1871, Kelsey v. Northern Light Oil Co., 45 
 N. Y. (6 Hand,) 505. 
 
 77. Sale by officers of corporation. A 
 sale of corporate property by the treasurer of 
 the corporation, who was shown to be its sole 
 managing agent, and who had been in the habit 
 of doing such business with the knowledge and 
 sanction of the company, is valid and binding 
 upon the company, thougli not authorized by its 
 by-laws. .Ct. App., 1871, Phillips v. Campbell, 43 
 N. y. (4 Hand,) 271. 
 
 78. Stock issued by agent to him- 
 self. A corporation, which by its by-laws and 
 a general resolution has directed its certificates 
 of stock to be signed by its president and treas- 
 urer, without any restriction as to stock to 
 be issued to such officers themselves, is liable 
 for money advanced in good faith to the treas- 
 urer upon certificates of stock issued to him, 
 and signed by him and the president of the com- 
 pany, although they were in fact fraudulently 
 issued. Sup. Ct., 1871, Titus v. Prest., etc. 
 Great Western Turnpike Road, 5 Lans. 250. 
 
 79. Warranty by agent. An agent, whether 
 general or special, who is authorized to sell a 
 horse for liis principal, has authority by virtue of 
 such agency to warrant the horse, unless ex- 
 pressly forbidden to do so by his principal, and 
 it is immaterial whether the latter instructed 
 him to warrant it or not. Sup. Ct., 1874, Tice v. 
 Gallup, 2 Hun, 446. 
 
 80. Torts of agent. A railroad company, 
 which instructs its conductor to demand a 
 greater fare than it is authorized to receive, and 
 to remove from its cars every person refusing to 
 pay that sum, is liable for any force used by such 
 conductor in the performance of the duty 
 imposed upon him, thougli he, through zeal or 
 impetuosity of temper may exceed the degree 
 necessary and proper to accomplish the purpose. 
 Ct. App., 1872, Jackson v. Second Ave. R. R. Co. 
 47 N. Y. (2 Sick.) 274. 
 
 81. One who directs an obstruction to be 
 placed in a highway is liable for injuries caused 
 thereby, although it was put there by a con- 
 tractor under him. Sup. Ct., 1874, Jones v. 
 Chantry, 1 Hun, 613. 
 
 III. Ratification. 
 
 82. What constitutes. To constitute a 
 ratification by acquiescence or omission to object 
 to the unauthorized act of the agent, the prin-. 
 cipal must have knowledge or information of 
 what has been done to his prejudice. Sup. Ct., 
 1874, Price v. Keyes, 1 Hun, 177. 
 
 83. Thus, where agents have sold the prin- 
 cipal's property for an inadequate price and 
 against instructions, more for their own benefit 
 than for his, and he has received nothing from 
 the transaction, nor had any part of the proceeds 
 applied to his benefit with his assent, there can 
 be no ratification by acquiescence or neglect 
 without such information. lb. 
 
 84 If an agent, authorized to sell, mortgage, 
 lease and convey real estate of his principal, 
 employs counsel and advises with them in re- 
 spect to other matters affecting his principal's in- 
 terests, not within the scope of his powers, and 
 the principal on being presented with a bill for 
 such counsel's services, and informed of the 
 character of the services charged for, after hav- 
 
 ing it in his possession for some time, expresses 
 satisfaction and approval in respect to the 
 advice, and promises to pay the bill, that is 
 a sufficient ratification of the act of the agent to 
 bind the principal. N. Y. Supr. Ct., 1873, Har- 
 nett V. Garvey, 36 N. Y. Supr. (4 J. & Sp.) 326. 
 
 85. Where an agent authorized to collect a 
 debt, takes a deed absolute as security for the 
 payment of the same, and delivers it to his 
 principal, the latter by accepting it will be 
 deemed to have adopted whatever arrangement 
 was made by his agent to obtain it, whether 
 such arrangement was communicjited to him at 
 the time, or he blindly acoepted^he deed with- 
 out making inquiry ; and he will hold the 
 property subject to the debtor's equity of re- 
 demption. Ct. App., 1873, Meehan v. Forrester, 
 52N. Y. (7 Sick.) 277. 
 
 86. 'Where one, in anticipation of the organiza- 
 tion by him of a Life Boat Association, ordered 
 materials for a boat, promising to pay for them 
 individually ; and afterward, the company being 
 formed, exhibited the boat in its office as an ad- 
 vertisement of its business, but without any 
 transfer to it of the title ; and the boat was sub- 
 sequently sold by the party ordering it, who 
 retained the proceeds as his own property, — 
 Held, in an action against the company for the 
 price of the materials, that neither the facts 
 stated nor the promise of the purchaser of 
 the materials to pay for them, while acting 
 as the business manager of the company, 
 such promise not appearing to have been 
 made in consideration of the transfer of the 
 boat to them, amounted to a ratification of the 
 purchase, so as to make them liable for the 
 debt. N. Y. C. P., 1869, Stainsby v. Frazer's 
 Metallic Life Boat Co., 3 Daly, 98. 
 
 87. In order to show by the letters of a prin- 
 cipal, a ratification of the act of an agent, em- 
 ployed to receive and communicate proposals for 
 the sale of a lot, in signing a contract in the name 
 of the principal, it must appear that the principal 
 knew not only that a contract had been made, but 
 also- the manner in which it was made. Ct. App., 
 1871, Rowan v. Hyatt, 45 N. Y. (6 Hand,) 138. 
 
 88. Where a broker offered to a customer 
 certain goods held by him for sale, which the 
 latter orally agreed to take, and the broker 
 executed a bought note to the owner in his 
 name, receiving a warehouse order for the 
 goods, which was delivered to and accepted by 
 such customer, — Held, that such acceptance 
 amounted to a ratification of the acts of the 
 broker. Ct. App., 1871, Hankins v. Baker, 46 
 N. Y. (1 Sick.) 666. 
 
 89. A consignee of goods, damaged in transitu, 
 upon which he has made advances and procured 
 insurance for his own protection, is liable for the 
 services of one employed by a third party acting 
 as " go-between " to himself and the consignor, 
 in putting the same into merchantable shape, 
 where, after the work is performed, he receives 
 such goods and presents to and collects from the 
 insurance company the account for such services 
 as part of his damages. Ct. App., 1874, CoUigan 
 V. Scott, 58 N. Y. (13 Sick.) 670. 
 
 90. One of several co-owners of alot of cotton, 
 having shipped a part of it without the knowledge 
 or consent of his cc-tenants, and obtained ad- 
 vances thereon upon the representation that the 
 shipment was authorized by his co-tenants, — 
 Held, that neither the acceptance by the latter 
 of a share of such advances, on his assurance 
 that they were obtained on his individual credit, 
 nor the retaining it after they learned the facts, 
 would amount to a ratification, so as to make 
 
PRINCIPAL AND AGENT. 
 
 633 
 
 them liable upon the original contract. Ct. App., 
 1872, Baldwin v. Burrows, 47 N. Y. (2 Sick.) 199. 
 
 91. Effect of. A principalis bound by the act 
 of his agent in settling a claim in his faror and 
 discharging the debtor, if he afterward fully 
 ratifies it, whether the agent originally had 
 authority to do so or not. Ct. App., 1873, 
 Graham v. Selover, 46 How. 107. 
 
 IV. Agent's liability to third paetibs. 
 
 92. Agency not disclosed. Agents who 
 contract with others without disclosing their 
 agency may properly be held liable as .princi- 
 pals on their contracts. Com. App., 1874, Pond 
 V. Clark, 57 N. Y. (12 Sick.) 653. 
 
 93. An agent who collects money on a draft, 
 having upon it a forged indorsement of the name 
 of the payee, the drawee being ignorant of the 
 forgery, and does not disclose the fact that he is 
 acting merely as agent in making the collection, 
 is liable to the drawee in an action to recover 
 back the money paid, even though he has paid 
 over such money to his principal before demand 
 of such drawee. Com. App., 1873, Holt v. Ross, 
 54 N. Y. (9 Sick.) 472; AfE'g S. C, 69 Barb. 554. 
 
 94. This rule applies to an express company, 
 although it is its general business to act as 
 agent. lb. 
 
 95. An agent who procures services to be 
 done for his principal, is not himself chargeable 
 as the debtor, unless he either omits to make 
 known his principal, or erroneously supposes 
 that he has authority, or exceeds his authority, 
 or expressly or impliedly engages to be answer- 
 able, by either directly promising to pay for 
 them, if rendered, or doing or saying something 
 which justifies the other party in supposing that 
 he engages to pay for them. N. Y. C. P., 1870, 
 Buck V. Amidon, 41 How. 370 : S. C, 4 Daly, 
 126. 
 
 96. This principle applied to the case of a de- 
 fendant, who took a telegram from tlie family 
 physician of his brother in Connecticut to the 
 plaintiff, a surgeon in N. Y. City, in pursuance 
 of which the latter went to Connecticut and per- 
 formed a surgical operation on sucli brotlier, the 
 defendant going with him and paying his rail- 
 road fare, but neither doing or saying anytliing 
 beyond the duties of an agent to make himsefi 
 personally liable. lb. 
 
 97. A person who leaves at the office of a 
 physician a card, having his own name and ad- 
 dress printed on it, after writing tliereon the 
 words, " Call on Mrs. D , at No. 769 Broad- 
 way," requesting a clerk in tlie office to hand it 
 to the physician and tell him to come as soon as 
 possible, thereby makes himself liable for the 
 physician's services rendered Mrs. D in pur- 
 suance of such message, although in leaving it 
 he was only acting as agent. N. Y. C. P., 1873, 
 Bradley v. Dodge, 45 How. 67. 
 
 98. Assumed agency. One who, falsely 
 assuming to act as agent for another, makes a 
 contract with a third party which is void by the 
 statute of frauds, is not liable for damages re- 
 sulting from a breach thereof, either in an action 
 directly upon the contract or for the misrepre- 
 sentation. Ct. App., 1873, Dung v. Parker, 62 
 N. Y. (7 Sick.) 494; Eev'g S. C, 3 Daly, 89. 
 
 99. Personal contract. Agents of a bank 
 entering into an agreement which, in terms, im- 
 poses a personal liability, are liable thereon not- 
 withstanding the addition of the words, "spe- 
 cial committee," to their names ; and this, 
 although they were appointed such special com- 
 mittee with the knowledge of the person with 
 
 whom they contracted, and did not intend to 
 bind themselves personally. Com. App., 1872, 
 Orchard v. Bininger, 51 N. Y. (6 Sick.) 652. 
 
 100. Unauthorized contract. An agent 
 who makes a contract not binding upon because 
 not authorized by his principal, is himself liable 
 in damages to the other contracting party, as 
 upon a breach of an implied warranty of authori- 
 ty. Ct. App., 1873, Baltzen v. Nicolay, 63 N. Y. 
 (8 Sick.) 467 ; Rev'g S. C, 35 N. Y. Supr. (3 J. 
 & Sp.) 203. 
 
 101. To render the agent liable, in such a case, 
 the contract made must be one 'that would be 
 valid against the principal, if authorized. So, 
 also, where a personal liability is sought to be 
 enforced against an agent who contracts for an 
 undisclosed principal. lb. 
 
 102. Where the former proprietor of a news- 
 paper continues to act for a joint-stock associa- 
 tion formed for its publication, and to purchase 
 paper therefor from one who had previously 
 sold to him on credit, and to have it charged as 
 before, telling the vendor that he is the manager 
 and largest stockholder, and is virtually the as- 
 sociation, and the latter makes out and receipts 
 bills therefor to him, the credit must be deemed 
 given solely to such agent, and he alone is re- 
 sponsible for the paper so furnished. N. Y. 
 Supr. Ct., 1871, Butler v. Evening Mail Associor 
 Hon, 34 N. Y. Supr. (2 J. & Sp.) 68. 
 
 103. Public agent. A public officer is not 
 personally liable upon contracts made by him 
 with persons having notice of his official 
 character and dealing with him in respect 
 thereof ; and much stronger evidence is re- 
 quired, in case of such an officer, to rebut the 
 presumption that the personal liability of the 
 agent was not contemplated, than when the 
 contract and agency are of a private nature. Ct. 
 App., 1871, Hall V. Lauderdale, 46 N. Y. (1 Sick.) 
 70. 
 
 104. If such officer act within his instructions 
 and in good faith, the powers of his principal 
 being defined by statute, he is not personally 
 responsible, although it may happen that the 
 authority itself is void. lb. 
 
 105. The fact that such officer has funds of 
 his principal in his hands applicable to the pay- 
 ment of the demand, which he refuses to so ap- 
 ply, does not affect the question of his personal 
 responsibility. lb. 
 
 106. An officer of the ordnance corps of the 
 United States army, who receives from a car- 
 rier property of the government consigned to 
 him, directing the bill for transportation to be 
 made out against the United States, which di- 
 rection the carrier complies with, receiving part 
 payment thereof afterward from the ordnance 
 department, is not liable personally for a balance 
 due for freight. N. Y. C. P., 1871, Crowellv. 
 Crispin, 4 Daly, 100. 
 
 V. Duty and liability to principal. 
 
 107. In general. A factor is bound to obey 
 the orders of his principal ; but where no orders 
 are given, or those given are not clear, explicit 
 and peremptory, he is only bound to good faith 
 and reasonable discretion. Sup. Ct., 1874, Jervis 
 V. Hoyt, 2 Hun, 637. 
 
 108. Emergencies may arise, in which an 
 agent or factor may, from the necessities of the 
 case, be justified in assuming extraordinary 
 powers, «. g., to save perishing property in 
 which the principal is interested ; and his acts, 
 fairly done under such circumstances, bind the 
 principal. lb. 
 
634 
 
 PRINCIPAL AND AGENT. 
 
 109. A principal, who is informed of the acts 
 of his agent, must dissent, and give notice of 
 such dissent in a reasonable time, or his assent 
 will he presumed, even in case of a violation of 
 instructions. lb. 
 
 110. Agent acting for his own benefit. 
 An agent to sell cannot himself become a pur- 
 chaser, and one who undertakes to act for an- 
 other in a matter, cannot in the same matter act 
 for himself. Ct. App., 1874 Bain v. Brown, 56 
 N. y. (11 Sick.) 285; Aff'g S. C, 7 Lans. 506. 
 
 111. Thus, where an agent, authorized to sell 
 eertain real estate for his principal, contracted 
 to do so at |17,000, and advised his princ^al 
 thereof, who also executed the contract, but 
 some days afterward the agent took an assign- 
 ment of the contract from the purchaser, and 
 sold to other parties in his own name for $26,000, 
 and procured his principal to convey to such 
 purchasers on the representation that the first 
 purchaser had assigned to them, but without 
 disclosing the price obtained, the consideration 
 of the deed when executed being left blank to 
 be filled in when delivered, — Held, that the con- 
 fidential relation existing between the principal 
 and agent continued until after the execution of 
 such deed, and the principal was entitled to re- 
 cover the increased price from the agent. lb. 
 
 112. The policy of the law forbids an agent, 
 by any underhand arrangement or device, not 
 known to or approved by the principal, becom- 
 ing the owner of liis principal's property em- 
 ployed in or about the agency. Sup. Ct., 1874, 
 HoUoway v. Stevens, 48 How. 129 ; S. C, 1 Hun, 
 308. 
 
 113. A principal cannot be deprived of the 
 right to have the proceeds of property sold on 
 execution against him and purchased by his 
 agent restored to him on reversal of the judg- 
 ment on which the execution issued, bj' any 
 agreement, not approved by him, between his 
 agent and the adverse party, that they should 
 not be restored. lb. 
 
 114. In order to sustain a purchase by an 
 agent of the property which constituted the sub- 
 ject of the agency, he must be able to show that 
 it was fair and honest, and preceded by a dis- 
 closure to the principal of all the facts known to 
 him which could be supposed to effect the terms 
 of the sale, unless the principal has waived such 
 disclosure. Sup. Ct., 1874, Brown v. Post, 1 Hun, 
 303. 
 
 115. Where the agent having the care of cer- 
 tain mining property, and having already con- 
 tracted for the sale of one mine for nearly 
 $200,000, represented to his principal that he 
 could sell the same for $100,000, and the princi- 
 pal thereupon to enable him to effect a sale, 
 conveyed to him that and another mine and a 
 promissory note, all for the sum of 1201,000 with 
 the understanding that the ^ent should have for 
 making the sale $25,000 and no more, and the 
 latter afterward sold and conveyed the one mine 
 for nearly $200,000,—ffeld, that the principal, 
 upon discovery of the fraud, was entitled to have 
 the sale cancelled as to the other mine, and to 
 recover the difference between the price receiv- 
 ed by the agent for the mine sold by him and 
 the amount he was to receive for commissions, 
 with the expenses of sale. lb. 
 
 116. The fact that the principal might by a 
 thorough investigation have discovered the 
 fraud, but having received some intimations of 
 it, was satisfied with a partial investigation, 
 does not deprive him of the right to recover in 
 such suit. lb. 
 
 117. Iiease by agent to his son. Where 
 
 a father, as agent or trustee, leases property to 
 his son, the mere fact of such relationship be- 
 tween them will not invalidate the lease, nor 
 authorize the disaffirmance of the transaction by 
 the principal or cestui qui trust. It is a material 
 fact in determining the question whether there 
 was fraud in fact, but it does not, per se, con- 
 stitute fraud in law within the rule prohibiting 
 an agent or trustee from dealing with the prop- 
 erty entrusted' to him for his own benefit. 
 DvriGHT and Eetnolds, CC, dissent. Com. 
 App., 1874, Linglce v. Wilkinson, 57 N. Y. (12 
 Sick.) 445. * 
 
 118. Iiiability to principal. An agent for 
 the purchase of goods is liable to his principal 
 for any commissions received by him, on pur- 
 chases, from the vendors, unless with the assent 
 of such principal ; and this, although the goods 
 may have cost the principal no more on account 
 of the commission. And no presumption arises 
 from the assent to a commission in one case of 
 such an assent in all. Com. App., 1872 Bowe v. 
 Savony, 51 N. Y. (6 Sick.) 631 ; Eev'g, in part, 
 S. C, 49 Barb. 403. b, v , 
 
 119. It is not necessary to show fraud on the 
 part of an agent in order to subject him to an 
 action for neglecting to perform a duty which he 
 has undertaken. Ct. App., 1872, Heinemann v. 
 Heard, 50 N. T. (6 Sick.) 27 : Eev'g S. C, 58 
 Barb. 524. 
 
 120. Where an agent or correspondent in 
 China for the purchase of silks and teas was di- 
 rected to invest a certain sum in silks within a 
 time limited, and at prices stated, without dis- 
 cretion except as to the selection, and he neg- 
 lected to purchase at all, though he might have 
 done so upon the terms specified, excusing him- 
 self upon the ground that he hoped to do better 
 than his instructions by waiting a decline in 
 prices,— fleW, that he was liable to his principal 
 for the damages suffered by him in consequence 
 of his failure to act. lb. 
 
 121. As a general proposition, an agent is not 
 liable to be charged with interest upon moneys 
 received and held by him for the use of his 
 principal. In order to render him liable for 
 interest, some other fact must be shown besides, 
 the mere receiving and retaining the money, 
 such as that he has mixed it with his own, or 
 made a profit on it, or put it at interest. Sup. Ct., 
 1871, Miller V. Clark, 5 Lans. 388. 
 
 122. If an agent, by departing from his instruc- 
 tions, obtains a better result than could have 
 been obtained by followhig them, the principal 
 can claim the advantage thus obtained, even 
 though the agent maj' have contributed his own 
 funds or responsibility in producing the result, 
 and the loss, if any had occurred, would have 
 fallen upon him alone. Ct. App., 1873, Button v. 
 Willner, 52 N. Y. (7 Sick.) 312. 
 
 123. Accordingly, when a person intrusted by 
 the assured with a life insurance policy for the 
 purpose of having it cancelled, and thus reliev- 
 ing the latter from further liability for pre- 
 miums or on his premium note, instead of so 
 doing agreed with the company to continue the 
 policy for his own benefit, leaving the premium 
 notes with the company uncancelled until they 
 were paid partly in cash from himself and partly 
 by dividends accruing on the policy, and paying 
 the subsequent premiums himself, and on the 
 death of the assured received the amount of the 
 policy from the company,— r.ffe/rf, that the 
 assured was entitled to the benefits resulting 
 from his act, and he was bound to account to the 
 representatives of the latter for the amount so 
 received. Gkotbb, J., dissents. lb. 
 
PRINCIPAL AND SURETY. 
 
 635 
 
 124. For property stolen from him. Where 
 a person acted as the agent o£ a widow in taking 
 charge of securities belonging to the estate of 
 the deceased husband and depositing them in a 
 bank, and, after she liad drawn part of the 
 principal, invested the balance in government 
 bonds, which he deposited in the same bank and 
 she drew the interest on them regularly until 
 the bank was robbed and they were stolen, — 
 Held, tliat she, as administratrix of the estate, 
 could not maintain an action against his estate, 
 for the value of the bonds lost, because he acted 
 as her agent, and no neglect or conversion on 
 his part was shown, and also because she had 
 adopted and ratified his act in purchasing and 
 depositing the bonds. Sup. Ct., 1874, Ingram v. 
 Young, 1 Hun, 487. 
 
 126. An agent who employes a clerk in the 
 business of his principal, is liable to account for 
 moneys of the latter, embezzled by such clerk. 
 Ct. App., 1872, Mass. Life Ins. Go. v. Carpenter, 
 49 N. Y. (4 Sick.) 668 ; Aff'g S. C, 2 Sweeny, 734. 
 
 126. Wrongful sale. Agents for the sale of 
 real estate are not liable to their principal as for 
 a wrongful sale or conversion, for any error in 
 judgment on tlieir part in making the sale, or 
 for injudiciously making it in order to- avoid the 
 effect of a law to take effect the next day, 
 under which creditors could attach and seize the 
 property, but tliey can be held so liable only for 
 designedly selling tlie property for their own 
 benefit, or for the purpose of depriving their 
 principal of tlie benefit of it. Sup. Ct., 1874, 
 Price v. Keyes, 1 Hun, 177. 
 
 127. Sucli agents cannot discliarge themselves 
 from liability by applying the proceeds of the 
 property to tlie payment of tlie principal's 
 debts, without his authority or assent lb. 
 
 128. Lien on securities. An agent has a 
 lien for his protection and indemnity on the 
 property or funds of his principal for moneys 
 advanced or liabilities incurred in liis belialf and 
 upon the faith of his solvency, if the principal 
 becomes insolvent while the proceeds and fruits 
 of such advances or liabilities are in the posses- 
 sion of tlie agent, or witliin liis reach, and before 
 they Iiave come to the actual possession of the 
 principal. Ct. App., 1873, Mutter v. Pondir, 55 
 N. Y. (10 Sick.) 325. 
 
 PRINCIPAL AHir SURETY. 
 
 1. Who is surety. A factor who accepts a 
 bill drawn on him by his principal upon the 
 strength of a consignment made by tlie latter, 
 becomes, as between himself and the drawer, 
 the mere surety of the latter, holding the prop- 
 erty in his hands as a fund for the payment of 
 tlie debt. Ct. App., 1873, Sidden v. Waldo, 55 
 N. Y. (10 Sick.) 294. 
 
 2. Liability of surety. A surety for the 
 lessees of premises, who binds himself, in case 
 of the default of his principals in paying rent or 
 performing the conditions of his lease, to " well 
 and truly pay such rent or any arrears thereof ; 
 and also all damages that may arise in conse- 
 quence of the non-performance of the cove- 
 nants, without requiring any notice of such de- 
 fault from the lessor," is liable to the lessor im- 
 mediately upon the default of the lessees, and 
 he is not bound to demand the- rent of the 
 lessees or to attempt to collect it from or to en- 
 force the covenants against them before pro- 
 ceeding against such surety. N. Y. Supr. Ct., 
 1873, Turnure v. Hohenthal, 36 N. Y. Supr. (4 J. 
 &Sp.)~79. -' 
 
 3. Where sureties are informed, at Hie time of 
 executing a bond, of but one contract between 
 tlieir principal and the obligee, for the perform- 
 ance of which they are sureties, they cannot 
 be held liable for the breach of another contract 
 entered into at the same time between those 
 parties, by which the powers and duties, and 
 consequently the liabilities of tlieir principal 
 are increased without tlieir knowledge. 'Sup.' 
 Ct., 1875, Western N. Y. Life Ins. Co. v. Clinton, 
 5 Hun, 118. 
 
 4. Sureties in a bond given to a sheriff to in- 
 demnify liim for levying upon " any personal 
 property which he or tliey shall judge to belong 
 to the debtor," although liable for a wrongful 
 levy upon a safe claimed to belong to the 
 debtor, would not be liable for the contents of 
 such safe, unless they requested the sheriff to 
 levy upon, remove or meddle with them, or to 
 remove the safe with knowledge that it con- 
 tained the goods. N. Y. C. P., 1874, Chapman 
 V. Douglass, 15 Abb. N. S. 421. 
 
 6. On official bond. Sureties in the bond 
 of a town supervisor, the condition of which is 
 that he shall " account for all moneys belonging 
 to the town coming into his hands as such 
 supervisor," are liable only for moneys which 
 their principal is authorized and bound by law 
 to receive in his official capacity. They are not 
 liable for that of which he becomes the volun- 
 tary custodian, or which is ordered without 
 authority of law to be paid to him. Ct. App., 
 1875, People V. Pennock, 60 N. Y. (15 Sick.) 421. 
 
 6. A supervisor has no authority to reeeive 
 moneys raised by tax for the relief of the poor, 
 or for highway purposes, even in transit ; and 
 liis sureties will not be liable for such moneys 
 paid over to him by the town collector, though 
 so paid in compliance with directions in his 
 warrant. lb. 
 
 7. Interest received by a county treasurer on 
 deposits of county funds belong to the county, 
 and the treasurer and his sureties are liable 
 therefor on his official bond, even though the 
 board of supervisors in passing on his accounts 
 may have allowed the same to him as a perqui- 
 site. Sup. Ct., 1872, Board of Sups, of Richmond 
 Co. V. Wandel, 6 Lans. 33. 
 
 8. The supervisors do not act judicially in 
 passing upon the treasurer's accounts, and have 
 not power to sanction the withholding by him 
 of any money belonging to the county, or to 
 discharge him from liability therefor ; nor will 
 their acts or omissions discharge his sureties. lb. 
 
 9. The sureties on the bond of a school district 
 collector for his first term, are not liable for his 
 refusal, during a second term to which he has 
 been elected, to pay over, on the order of the 
 trustee, moneys received by him as collector 
 during such first term. Sup. Ct., 1871, Overacre 
 V. Garrett, 5 Lans, 156. 
 
 10. Defense of fraud. A guarantor of the 
 payment of a note, may set up and prove, as a 
 defense to an action thereon by the executor of 
 the payee, that it was obtained by fraud and 
 was without consideration. Sup. Ct., 1875, 
 Putnam v. Schuyler, 4 Hun, 166. 
 
 11. One who assigns a note or bond for value, 
 and guarantees its payment or collection, cannot 
 set up its invalidity as a defense to an action 
 thereon ; nor is the fact, that, from some defect 
 or incapacity, the principal is not liable on the 
 instrument, a defense to the guarantor, if the 
 debt is justly owing. lb. 
 
 12. Rights as against principal. Where 
 P signed a note with and as surety for L to C 
 being induced to do so by the promise that he 
 
636 
 
 PRINCIPAL AND SURETY. 
 
 should receive as an indemnity a note signed by 
 L and B, wliioh was subsequently given to him ; 
 and when the note to C became due, it was paid 
 with money borrowed of • A on the note of P 
 and L which was afterward paid by 7,— Held, 
 that as between P and L the debt for which P 
 became surety was virtually unpaid ; and, un- 
 til it was really paid by L, the note of L and B 
 was an operative security, and P could hold B 
 '•lereon- Sup. Ct., 1862, Pinckney v. Pomeroy, 
 
 13. Where a principal confesses a judgment 
 m favor of one who has become his surety on 
 promissory notes, for the amount of such 
 notes, that constitutes a quasi trust fund 
 for the payment of the debt, and the credi- 
 tor is entitled to have it appliefl thereto if the 
 debt is not otherwise paid ; and, even though 
 the surety's estate be discharged from liabili- 
 ty by his decease, yet the judgment remains a 
 valid lien and security for the debt in favor of 
 one who takes an assignment of it and pays the 
 debt. Sup. Ct., 1875, Crosby v. Crafts, 5 Hun, 
 
 oat. 
 
 14. Where a surety holding property in his 
 hands as a fund for the payment of the debt, 
 sells it for more than its value, and pays the 
 debt, the principal is entitled to the benefit of 
 the profit made, and the surety cannot charge 
 him with that amount as being his own. Ct. 
 App., 1873, Hiddenv. Waldo, 55 N. T. (10 Sick.) 
 294. 
 
 16. It is the right of a surety to pay the debt 
 and sue the principal, and one who, for value, 
 transfers a debt or security and becomes guar- 
 antor or indorser thereupon, cannot by notice to 
 the holder or creditor, impose upon him the 
 duty of active diligence at the risk of discharg- 
 ing the surety by omitting it. Ct. App., 1871, 
 WelU V. Ma,in, 45 N. Y. (6 Hand.) 327 ; Rev'g 
 S. C, 52 Barb. 263. 
 
 I'i. In an action against a surety, an indepen- 
 dent cause of action in favor of his principal 
 against the plaintiff is not available to him as 
 a defense. Such cause of action belongs to the 
 principal, who has his election to do with it as 
 he chooses, uncontrolled by his surety. Ct. 
 App., 1874, Lasher v. Williamson, 55 N. Y. (10 
 Sick.) 619. 
 
 17. Rights against co-surety. A surety 
 cannot, in an action by his co-surety for contribu- 
 tion, set up by way of counterclaim, recoupment 
 or set-off, a cause of action existing in favor of 
 the principal against the plaintiff. Com. App., 
 1874, O'Blenis v. Karing, 57 N. Y. (12 Sick.) 649. 
 
 18. But, in such a case, it seems that if the 
 principal is insolvent, the defendant may com- 
 mence an action in equity against the plaintiff 
 and the principal, and have the accounts be- 
 tween them adjusted and the amount due from 
 the plaintiff to the principal applied so as to save 
 himself from loss. lb. 
 
 19. Surety, how diacharged. Any material 
 change made by the parties in the terms of a 
 contract between them, releases one who be- 
 came surety for its performance as originallv 
 made. Sup. Ct., 1872, Wilson v. Edwards, 6 
 Lans. 134. 
 
 20. The sureties for the faithful performance 
 of a contract to make sales of hay on commis- 
 sion, and account for and pay over the proceeds, 
 are not liable for the payment of moneys receiv- 
 ed by their principal for hay sold and charged to 
 him at a fixed price, without regard to any com- 
 missions, lb. „,«.,,, 
 
 21. Acceptance. A surety for the faithful 
 performance of a building contract is not dis- 
 
 charged by any acceptance, or partial accep- 
 tance, which would not at the same time release 
 his principal. N. Y. Supr. Ct., 1869, Water 
 Commissioners of Detroit v. Burr, 2 Sweeny, 24. 
 
 22. Change of parties. A surety in a bond 
 given to his principals by an agent for the sale 
 of machines, conditioned that he shall account 
 for and pay over to them the proceeds of all 
 sales, is not discharged by the fact that such 
 agent took, at different times, partners in the 
 business of selling machines, or that the princi- 
 pals knew that he had such partners, and de- 
 livered the machines at their place of business ; 
 where it does not appear that they ever recog- 
 nized the partners as their agents, or delivered 
 machines except upon the individual order of 
 the agent appointed by them. Sup. Ct., 1873, 
 Palmer v. Bagg, 64 Barb. 641 ; Aff'd, S. C, 56 
 N. Y. (11 Sick.) 523. 
 
 23. Deviation from contract. Where per- 
 formance by the purchaser is guaranteed, of a 
 contract for a steam engine of certain dimen- 
 sions with two boilers of a size specified and all 
 attachments, to be furnished at a certain price, 
 the substitution by the parties, without the con- 
 sent of the surety, of an engine with three boil- 
 ers and of 'greater capacity and power, at an ad- 
 ditional price, is a material variation, which will 
 discharge the surety. Ct. App., 1871, Grant v. 
 Smith, 46 S. Y. (1 Sick.) 93. 
 
 24. Extension of time. The mere giving by 
 the principal debtor, or one who has been ac- 
 cepted as such, and the receipt by the creditor, 
 of a check or note of a third party as collateral 
 security, does not of itself extend the time of 
 the principal so as to discharge the surety. Sup. 
 Ct., 1874, Van Etten v. Troudden, 1 Hun, 432. 
 
 25. Where a creditor agrees to accept third 
 parties for the payment of the defendant's note, 
 and those parties have the defendant's money to 
 the amount of the note, such agreement,' though 
 not technically a payment, will discharge the 
 debt by way of accord and satisfaction. lb. 
 
 26. The acceptance by a creditor of a firm, 
 with knowledge of its dissolution, of the note of 
 one of the partners who has assumed to pay the 
 debts of the firm, on condition that, if paid, it 
 shall cancel the debt of the firm, otherwise he 
 will hold the firm, does not make the other part- 
 ner a surety for the one who assumed the debts, 
 so as to release him from liability, on the ground 
 of the extension of time to his principal. Sup. 
 Ct., 1874, Vernam v. Harris, 1 Hun, 451. 
 
 27. The indorsement of the principal's paper 
 by the surety, from time to time, to take up prior 
 paper, is not a giving of time to the principal 
 which will release a surety in a note given to 
 indemnify the first surety. Sup. Ct., 1862, Pinck- 
 ney V. Pomeroy, 62 Barb. 460. 
 
 28. Porbeareince. A contract of suretyship, 
 although fctr the performance by a vendee of the 
 continuing agreement of purchase and sale, con- 
 templating a recurring indebtedness to be made 
 and extinguished monthly, is not discharged by 
 mere forbearance on the part of the vendor to 
 enforce payment when due, without any binding 
 agreement for an extension of time. Beyond 
 this, there must be on the part of the creditor 
 some act of connivance at a fraud upon the sure- 
 ty, or gross negligence amounting to fraud. Ct. 
 App., 1874, McKecknie v. Ward, 58 N. Y. (13 
 Sick.) 541. • 
 
 29. Neither, in such case, is it the duty of the 
 vendor to give notice to the surety, from time to 
 time, of the several advances or sales made upon 
 the contract, nor, until a" reasonable time after 
 default (which must depend upon the ciroum- 
 
PRIVATE PROPERTY— PROHIBITION, WRIT OF. 637 
 
 stances of each case), of the failure of the princi- 
 pal to pay. And, at the most, want of notice will 
 discharge the surety only to the extent to which 
 he has in consequence sustained damage. lb. 
 
 30. Failure to sue principal. Upon the dis- 
 solution of a partnership and the assumption of 
 its debts by one partner, if a creditor of the 
 firm, on being notified of those facts by the re- 
 tiring partner, and requested to proceed and col- 
 lect his debt immediately from the other partner, 
 who is then solvent and within the jurisdiction 
 of the court, without any reasonable excuse ne- 
 glects and refuses so to proceed until such debtor 
 becomes insolvent and unable to pay, he thereby 
 discharges the retiring partner. Sup. Ct., 1875, 
 Colgrove v. Tallman, 5 Hun, 103. 
 
 31. A surety will not be discharged on the ne- 
 glect of the Creditor at his request to prosecute 
 the principal debtor, if the principal was insol- 
 vent at the time, and unable to pay his debts, and 
 so continued afterward. Sup. Ct., 1871, Field v. 
 Cutler, i Lans. 195. 
 
 32. Failure to prosecute collaterals. After 
 request made by a surety of the creditor to 
 prosecute certain securities held by the latter, 
 in order that the debt may be realized and such 
 surety discharged, mere delay to prosecute un- 
 accompanied by proof that the delay was unrear 
 sonable or made in bad faith, or that the creditor 
 was guilty of gross negligence, by which the se- 
 curities were damaged, will not operate to dis- 
 charge the surety. Com. App., 1871, Black River 
 Bank V. Page, 44 N. Y. (5 Hand,) 453. 
 
 33. Fraud. One who was Induced by repre- 
 sentations of the landlord to guaranty the pay- 
 ment of rent by the tenant, will be relieved from 
 liability as guarantor upon proof that such rep- 
 resentations were falsely and ■ fraudulently 
 made ;' and he may set up that defense to an ac- 
 tion on his guaranty, notwithstanding the tenant 
 has not rescinded his contract. N. Y. Supr. Ct., 
 1874, Mendehon v. Stout, 87 N. Y. Supr. (5 J. & 
 Sp.) 408. 
 
 34. Notice. A guarantor of the performance 
 of a contract has the right, upon the default of 
 his principal, to insist upon the contract being 
 then terminated, so as to confine his liability to 
 the damages then recoverable. Ct. App., 1871, 
 Hunt y. Roberts, 45 N. Y. (6 Hand,) 691. 
 
 35. But if, after the expiration of the time for 
 performance by the principal, the surety makes 
 arrangements for the continuance of the work, 
 at the same time notifying the other party that 
 he will not be responsible after a time specified, 
 his liability wiU be hmited to the damages which 
 can be recovered at the time so fixed. lb. 
 
 36. Sale of pledge. A sale by a creditor, of 
 securities for the debt placed in his hands by the 
 principal debtor, in violation of a stipulation for 
 a particular notice contained in the contract un- 
 der which they were pledged, discharges, pen' se, 
 a surety who is liable for the debt, to the extent 
 only of their value. Ct. App., 1872, Vbse v. Flo- 
 rida R. R. Co., 50 N. Y. (5 Sick.) 369. 
 
 37. Transfer of note to principal. Where 
 one of several partners retires, and sells out to a 
 third party, who is accepted as a partner in his 
 place, and assumes all his obhgations, the retir- 
 ing partner becomes, as between himself and the 
 new firm, merely their surety upon a note of the 
 old firm, and a transfer of such note to a mem- 
 ber of the new>firm ex'tinguishes his liability ; 
 and neither the partner to whom it is transferred, 
 nor one to whom he transfers it after maturity, 
 can enforce it against such retiring partner. Sup. 
 Ct., 1874, Morss v. Gleason, 2 Hun, 31. 
 
 88. New undertaking on appeal. The 
 
 sureties in an undertaking on appeal to the Gen- 
 eral Term have the right, in-case their liability 
 is fixed by affirmance of the judgment, to pay it 
 up and then to be substituted to all the rights 
 and remedies of the creditor ; and, therefore, if 
 their principal appeals from the judgment of af- 
 firmance to the Court of Appeals giving a new 
 undertaking, it enures to their benefit and the 
 sureties therein are primarily liable for the pay- 
 ment of the judgment and costs on affirmance in 
 that court, and their release by the judgment 
 creditor discharges the former sureties. Ct. App., 
 1874, Hinckley v. Kreitz, 58 N. Y. (13 Sick.) 583 ; 
 Eev'g S. C, 36 N. Y. Supr. (4 J. & Sp.) 413. 
 
 39. Want of notice. The sureties in a bond 
 conditioned for the faithful performance by the 
 principal of certain duties, and the accounting 
 for and paying over of moneys of the obligee 
 coming to his hands, are not discharged by the 
 obligee's failure to notify them of a default on 
 the part of their principal, and his keeping such 
 principal in his employment with knowledge of 
 the default, where it does not appear that the 
 omission resulted in any injury to such sureties, 
 or that the default was fraudulent. Fkeedman, 
 J., dissents. N. Y. Supr. Ct., 1875, Atlantic and 
 Pacific Tel. Co. v. Barnes, 39 N. Y. Supr. (7 J. & 
 Sp.) 40. 
 
 PRIVATE PROPERTY. 
 
 See CONSIITUTIONAI, LAW, VII. 
 
 PRIVATE STATUTES. 
 See Statutes. 
 
 PROCESS. 
 See Practice. 
 
 PRODUCTION OF PAPERS. 
 See Practice. 
 
 PROHIBITION, WRIT OF. 
 
 1. When allowed. The remedy by writ of 
 prohibition, though recognized by the Revised 
 Statutes, and preserved by sec. 471 of the Code, 
 is not often resorted to, and should not be al- 
 lowed where another adequate remedy exists 
 by law. Sup. Ct. Sp. T., 1871, People ex rel. 
 City of Albany v. Clute, 42 How. 157. 
 
 2. An adequate remedy for the review of 
 proceedings before a county judge for bonding 
 a town or. city for aid to a railroad, by writ of 
 certiorari, is provided by sec. 4, ch. 925, Laws of 
 1871, amendatory of prior acts on that subject ; 
 and a writ of prohibition issued to restrain a 
 county judge from further proceedings on an 
 application to bond a town for such purpose will, 
 for that reason, be vacated and set aside. lb. 
 
 8. A writ of prohibition may issue out of the 
 Superior Court of New York city to restrain an 
 inferior court and keep it within its jurisdiction. 
 N. Y. Supr. Ct. Sp. T., 1873, Norton v. Bowling, 
 46 How. 7. 
 
638 
 
 PROTEST— QtO WARRANTO. 
 
 4. Such writ cannot properly be issued to re- 
 strain the convention or board of police justices 
 of New York, organized under the act of 1860, 
 in appointing and removing clerks of courts, 
 since in discharging that duty they do not act 
 as a court. Ih. 
 
 5. To grant an absolute writ of prohibition 
 against parties to suits and against the courts in 
 wliich the suits are pending, where no order to 
 show cause has been served on such courts, nor 
 any appearance entered for, nor returns made by 
 tliem, is altogether irregular; and the order 
 granting tlie writ will be set aside, with all pro- 
 ceedings subsequent to the order to show cause, 
 and the court be directed to proceed in con- 
 formity to the statutes. Sup. Ct., 1875, In matter 
 of Cameron, 5 Hun, 290. 
 
 6. OfBce and effect of. A writ of prohi- 
 bition issued by the Supreme Court cannot 
 affect tlie practice or the jurisdiction of the 
 Court of Appeals, or the rights of parties to its 
 process and a hearing therein, but that court 
 will determine for itself questions as to its juris- 
 diction, or the rights of the appellants to bring 
 the appeal. Ct. App., 1876, Thomson v. Tracy, 
 60N. Y. (15Sick.) 31. 
 
 7. The proper office of a writ of prohibition is 
 to prevent the exercise, by a tribunal possessing 
 judicial powers of jurisdiction over matters not 
 witliin its cognizance, or exceeding its jurisdic- 
 tion in matters of which it has cognizance ; and 
 it will not lie to restrain a ministerial act. It is 
 a preventive rather than a remedial process, and 
 cannot take the place of a writ of error, or other 
 proceeding for the review of judicial action, or 
 of a suit in equity to prevent or redress fraud, 
 lb. 
 
 8. The provisions of 2 E. S. 587, sec. 61 (2 
 Edni. Stats. 609), that the party in whose behalf 
 the unauthorized jurisdiction is invoked may 
 be enjoined with the court from further pro- 
 ceedings in the suit or matters specified, does 
 not change the character of the writ or permit 
 any question except that of jurisdiction to be 
 tried in the proceeding inaugurated by it. lb. 
 
 9. Where a contested will has been admitted 
 to probate by the surrogate, and his decree con- 
 firmed on appeal to the Supreme Court, and 
 letters issued to the executors; and after a 
 reversal of the decree by the Court of Appeals, 
 a writ of prohibition was issued, directed to the 
 surrogate and executors, which, in terms, com- 
 manded the executors to desist and refrain from 
 acting in any way as such, — Held, that such 
 writ was operative directly and only upon the 
 surrogate's court, and matters and proceedings 
 pending therein to which the defendants were 
 parties only incidentally and as connected with 
 and instigating or prosecuting such matters and 
 proceedings. It could not prevent a prosecution 
 of an appeal in an action against the executors, 
 or restrain their action in respect to it, nor did 
 it furnish any reason for staying the proceedings 
 in the Court of Appeals. lb. 
 
 PROTEST. 
 See Bills and notes. 
 
 PULTENEY ESTATE. 
 
 1. Perpetuation of testimony. The act 
 to perpetuate certain testimony respecting the 
 
 title to the Pulteney estate (ch. 19, Laws 1821) 
 is constitutional, although it fails to provide for 
 the service of notice of the taking of such testi- 
 mony upon parties adversely interested, and 
 makes it, when taken, prima facie evidence of 
 the facts testified to. Sup. Ct., 1874, Howard v. 
 Moot, 2 Hun, 475. 
 
 2. That act (sec. 2) makes the chancellor the 
 exclusive judge of the weight to be given to the 
 evidence, and his decision on that point cannot 
 be reviewed. lb. 
 
 See Constitutional law. 
 
 QUO WAEEANTO. 
 
 1. When action lies. An action can be 
 maintained by the attorney-general, under subd. 
 1, sec. 432 of the Code, to determine the validity 
 of the election of persons claiming to be directors 
 of a corporation, and auxiliary to that, to deter- 
 mine the validity of stock issued by persons 
 acting as directors, and to restrain the further 
 action of the persons ascertained not to be duly 
 elected, and to require the transfer to thpse duly 
 elected of the property of the company ; but he 
 cannot properly in the same action seek to have 
 suits brought by some of the defendants against 
 others of the defendants restrained and dis- 
 missed, and receivers therein removed, since he 
 has no authority to bring an action for that 
 purpose. Sup. Ct., 1871, People v. Albany and 
 Susq. R. R. Co., 5 Lans.25; Aff'd, S. C, 57 N. Y. 
 (12 Sick.) 161. 
 
 2. An action in the nature of a quo warranto, 
 to try the title to a corporate office to which 
 there are several claimants, is one of legal, not 
 equitable cognizance, and the issues therein are 
 triable by jury, unless a jury is waived ; and if 
 other equitable causes of action are joined in 
 the same action, all must be tried by jury, unless 
 a jury is waived. lb. 
 
 3. Remedy exclusive. The provisions of 
 sees. 482, 436 of the Code, for an action by the 
 attorney - general on behalf of the people, to 
 try the title to an office in a case of alleged 
 usurpation, are exclusive and not cumulative, 
 and such question cannot be tried in an action 
 to restrain the usurpation by injunction. N. Y. 
 Supr. Ct. Sp, T., 1873, Palmer v. Foley, 44 How. 
 308 ; Aff'd, S. C, 45 How. 110 ; 36 N. Y. Supr. 
 (4J. &Sp.) 14. 
 
 4. 'When premature. An action in the na- 
 ture of a quo warranto to try the title to a public 
 office, brought before the commencement of the 
 term of the office claimed, is premature. The 
 action will not lie to try a mere claim to exercise 
 an office at some future time. Sup. Ct. Sp. T., 
 1871, People ex rel. Martin v. McCullough, 11 
 Abb. N. S. 129. 
 
 5. Parties. Where the charter of a city pro- 
 vides that the board of aldermen shall " be the 
 judge of the election, returns and qualifications, 
 of its own members," it seems that such board 
 will not be concluded by a judgment on quo war- 
 ranto in favor of a claimant to the office of assist- 
 ant alderman, wliose claim had previously been 
 rejected by the board, jf not made a party to 
 the action. Sup. Ct., 1874, McVeany v. Mayor, 
 etc. of New York, 1 Hun, 36. 
 
 6. Practice. A special jury will not be 
 ordered in an action in the nature of a quo war- 
 ranto, to try the question of title to the office of 
 justice of a district court in the city of New 
 
RAILROAD COMPANIES. 
 
 639 
 
 York, where there is nothing in the cireum- 
 etances to make it an extreme case, such as alone 
 would warrant such a jury. Sup. Ct., 1872, People 
 ex rel. Stemmler v. McGuire, 43 How. 67. 
 
 7. An injunction to restrain a de facto officer 
 of a corporation from acting as such, is not an 
 appropriate remedy in an action brought in the 
 name of the people to remove him from such 
 office, alleged to have been usurped by him, and 
 to recover damages for such usurpation. If his 
 continued exercise of the office appears to en- 
 danger the interests of the corporation, an action 
 of a different nature must be brought, and by 
 some person whose interests will be jeopardized 
 by his apprehended misconduct, where not 
 brought by the corporation itself. Sup. Ct., 1875, 
 People ex rel. Floyd y. Conklin, 5 Hun, 452. 
 
 8. Hearing and determination. When the 
 right of a person exercising .an office is chal- 
 lenged in a direct proceeding by tlie attorney 
 general, now as before the Code, the defendant 
 must establish his title, or judgment will be ren- 
 dered against him. Possession of the office is 
 no evidence of his right, but the burden is upon 
 him to show by affirmative proof that his pos- 
 session is a legal and rightful one. Ct. App., 
 1874, People ex rel. Judson v. Thacher, 55 N. Y. 
 (10 Sick.) 525. 
 
 9. Where, however, the action is brought 
 upon the relation of one claiming a right to the 
 office, the failure of the defendant to prove his 
 title does not establish that of the relator ; and 
 judgment may be rendered against the defendant, 
 without adjudging the title in sucli relator. lb. 
 
 10. The election returns are only prima facie 
 evidence of the facts recited in them, and may 
 be impeached for error; and where they are re- 
 jected, there can be no presumption that the 
 votes not proved to have been cast for the re- 
 lator were given for the defendant, but the latter 
 can be allowed onlj' such as the evidence in the 
 case shows that he recnived. lb. 
 
 11. "What votes lo be counted. Where 
 the certificate of inspectors of election shows 
 a less number of votes to have been canvassed 
 by them than the poll list shows to have 
 been cast, and there is proof that two of the 
 three candidates, for whom all the votes can- 
 vassed appear by the certificate to have been 
 cast, received more votes than the certificate 
 gives to them, and also evidence tending to show 
 fraud, the court cannot count for the third can- 
 didate the remaining votes appearing on tlie poll 
 list, without other evidence than that they were 
 cast for.him, although they were less than were 
 returned for him. Miller, P. J., dissents. Sup. 
 Ct., 1873, People ex rel. Judson v. Thacher, 3 
 Lans. 274. 
 
 12. Where the poll lists showed that 729 votes 
 were cast for mayor of a city, and the certificate 
 of the inspectors showed that only 652 votes 
 were canvassed for that office, of which T re- 
 ceived 460, and the balance were past for two 
 other candidates, and it appeared in proof that 
 while the votes were being counted the gaslight 
 went out, and after it was relighted only 652 
 votes were found, and also that 334 voters had 
 voted for the two other candidates, — Held, tliat 
 it was errorto instruct the jury that such 334 
 votes should be deducted from the whole num- 
 ber appearing by the poll list to have been cast, 
 rather than from the smaller number canvassed, 
 thus, in effect, giving to T 77 votes not shown 
 to have been east for him. lb. 
 
 13. If there had been evidence as to whom 
 those votes had been cast for, the court might 
 have submitted tlie question to the jury, and so 
 
 instructed them in case they found they were 
 cast for T. lb. 
 
 14. The certificate of the . inspectors being 
 shown to be false, it should be rejected as evi- 
 dence, without regard to the question whether 
 the inspectors were concerned in the fraud. lb. 
 
 15. It is sufficient cause for setting aside the 
 return, where there is evidence that, during the 
 interval between the going out of the gas and 
 its being relighted, ballots were taken from the 
 table and others substituted, and it was entirely 
 uncertain to what extent that had been done, 
 even though it was done by others than the in- 
 spectors and without their complicity; and it is 
 not necessary to show fraud on their part, such 
 as altered the result. lb. 
 
 16. In an action under the Code to try the 
 title to a particular office, where the question as 
 to who was elected to it, and what was the inten- 
 tion of certain ballots, is investigated before a 
 jury, the decision of tlie inspectors of election in- 
 rejecting a ballot as designating two persons for 
 a single office is not conclusive, but the question 
 as to the voter's intention is open to inquiry. 
 Sup. Ct., 1872, People ex rel. Gregory y. Love, 63 
 Barb. 535. 
 
 17. Pasting a slip of paper, containing a name, 
 over another name on a ballot, indicates the in- 
 tention of "the voter to substitute that name for 
 the other, for the office for which he was desig- 
 nated ; and if there be any doubt arising from 
 the manner in which such paster is attached, as, 
 where it wholly or partly covers the title of office 
 next below on the ticket instead of the whole of 
 the name above such title, the facts should be 
 submitted to the jury, for them to determine 
 whether such ballots designated two names for 
 one office, or whether the intention was to sub- 
 stitute the name on the paster for that above 
 such title. lb. 
 
 EAILBOAD COMPANIES. 
 
 I. In general 639 
 
 II. Acquisition op lands and location 
 
 OP KOCTE 640 
 
 III. Powers, duties and liabilities 643 
 
 See amendments to general act for incorporation of, 
 chaps. 560, 669, Laws 1871 ; chaps. 710, 720, 
 Laws 1873 ; chaps. 240, 430, Laws 1874. 
 
 I. In general. 
 
 1. Payment for stock. The taking of a 
 check from a subscriber to stock for the 10 per 
 cent, required by law to be paid in cash, is not 
 such a violation of the general railroad act as to 
 render it void. Sup. Ct., 1875, Syracuse, P. ^ 0. 
 11. R. Co. V. Gere, 4 Hun, 392. 
 
 2. Such a check given upon a subscription to 
 stock before the incorporation of the company 
 becomes its property when the incorporation is 
 complete, and it can sue thereon. lb. 
 
 3. The company is not bound by an agreement 
 made by the person who solicited the subscrip- 
 tion and obtained the check, that payment there- 
 of should never be demanded. lb. 
 
 4. Directors, duties, &c. The directors of 
 a railroad company, in all matters pertaining to 
 the construction of the road and the acquisition 
 of the roadway, are bound to act as the repre- 
 sentatives and for the benefit of the corporation. 
 For this reason they cannot acquire for them- 
 selves property which it is their duty to acquire 
 
640 
 
 RAILROAD COMPANIES. 
 
 for the company and which is necessary for its 
 purposes ; as, in respect to this class of dealings, 
 they stand upon, the same footing as ordinary 
 trustees. Ct. App., 1874, Blake v. Buffalo Creek 
 R. R. Co., 56 N. Y. (11 Sick.) 485. 
 
 5. Tiie duties of a director of a railroad corpo- 
 ration are fiduciary in their nature, and he is 
 therefore disabled from dealing, on his own be- 
 half, in respect to any matter involved in the 
 trust committed to him. Com. App., 1873, Hoyle 
 V. Plattsburgh ^ Montreal R. R Co., 54 N. Y. (9 
 Sick.) 314. 
 
 6. His duty in this respect is not limited to 
 the time while he is acting as director, under a 
 special delegation of power, or is in attendance 
 at meetings of the board, but extends through 
 his whole term of directorship. lb. 
 
 7. Accordingly, — Held, that a director of such 
 a corporation, in view of that relation only, could 
 not become a purchaser of the corporate property 
 on an execution sale, except subject to its right 
 to disaffirm the sale and demand a re-sale. lb. 
 
 8. Whether, when the director is judgment 
 creditor as well, he may not purchase in protec- 
 tion of his own rights, and hold the property so 
 purchased absolutely against the company, queri/ 9 
 
 9. At any rate, the sale in such case would not 
 be disturbed on application of a mortgagee of 
 the company, except upon his offer to pay up 
 the judgments as a condition of a re-sale. lb. 
 
 10. Stockholders, liability of. One who 
 does work for a contractor upon a railroad is not 
 a laborer for the company, within the meaning 
 of the last clause of sec. 10. ch. 140, Laws of 
 1850, as amended by ch. 284, Laws of 1854, and 
 therefore, cannot, under that clause, recover his 
 debt against a stockholder. Com. App., 1872, 
 McMahon v. Macy, 51 N. Y. (6 Sick.) 165. 
 
 11. One who, in person and with his hired 
 man and team, had performed labor for such a 
 contractor, brought an action therefor against 
 the company, under sec. 12 of the former act, in 
 December, 1854, recovering judgment therein 
 in March, 1857. In September, 1864, he brought 
 this action under said sec. 10. Defendant in 
 August and October, 1854, had received transfers 
 of stock which were absolute in form and made 
 upon the books of the company, but in that and 
 the following year transferred the whole of it to 
 other parties, — Held, that if the plaintiff could in 
 any event recover on the original claim, as a 
 creditor of the company, his action was barred 
 by the statute of limitations ; and that he could 
 not recover by virtue of the judgment as creat- 
 ing a debt, because the defendant was not a 
 stockholder at the time of its recovery. lb. 
 
 12. /* seems the judgment would not be con- 
 clusive or even prima facie evidence of the debt 
 in such a case ; but if it were, being for an insep- 
 arable part of its amount for labor and services 
 not performed by the plaintiff himself, no re- 
 covery could be had upon it. lb. 
 
 11. Acquisition op lands, and location of 
 
 ROUTE. 
 
 18. Appointment of commissioners. Be- 
 fore a railroad company can have commissioners 
 of appraisal appointed under the general railroad 
 act (ch. 140, Laws 1850 ; 8 Edm. Stats. 617), it 
 must comply strictly and chronologically with 
 the provisions of that act preliminary thereto. 
 Sup. Ct. Sp. T., 1871, New York Sr Boston R. R. 
 Co.v. Godwin, 12 Abb. N. S. 21 ; S. C, 62 Barb. 
 85. S. P., Wallkill Valley R. B. Co. v. Norton, 12 
 Abb. N. S. 817. 
 
 14. Thus, it must first survey and select its 
 route, then file a map and profile thereof, prop- 
 erly drawn and certified, in the office of the re- 
 gister (or county clerk, as the case may be), 
 and give written notice to the occupants of lands 
 over which such route is designated of the time 
 and place of the filing thereof, and that the route 
 passes over the land of such occupant; and if 
 such occupant does not within 15 days take the 
 statutory steps to secure a review or alteration 
 of the route, the company may then apply, upon 
 10 days' notice, for the condemnation of lauds 
 which they have been unable to acquire by 
 agreement with the owners, and the appointment 
 of commissioners. lb. 
 
 15. The petition for the appointment of com- 
 missioners cannot serve the purpose of the no- 
 tice to occupants required by sec. 22 of that act, 
 as amended by ch. 560, Laws 1871. The route 
 should first be finally determined, so that the 
 land to be taken may be accurately defined in the 
 order of appointment. lb. 
 
 16. The map should be ample and full in de- 
 tail, so that property owners, though unlearned, 
 may be able by inspecting it to determine where 
 the route crosses their land ; and it should show 
 the quantity of land taken, and the profile should 
 be on the same sheet, and so drawn that it may 
 be located upon each parcel of land with facility. 
 A map showing by a single line merely the gen- 
 eral course of the road is not sufficient. lb. 
 
 17. It is also an essential prerequisite, that the 
 company shall have attempted to agree with the 
 owner, and have failed. lb. 
 
 18. For 'what use. Reasonable necessity 
 must be shown, to authorize a railroad company 
 to take lands, yet a reasonable discretion must 
 be allowed to the officers who locate the tracks 
 of a railroad, the question of the necessity of lo- 
 cating them in a particular spot not being one of 
 possibilities nor of strict practicabilities. Sup. 
 Ct., 1875, N. Y. Cent. ^ Hudl Riv. R. K Co. v. 
 Metropolitan Gas Light Co., 6 Hun, 201; Afl'dby 
 Ct. App. 
 
 19. A railroad company may take lands by 
 proceedings in invitum, in the city of New York, 
 for depots for freight, cattle and live stock, those 
 being within the purposes for which railroads are 
 constructed. lb. 
 
 20. Such company may acquire land under the 
 statute, for the purpose of laying tracks by 
 which to approach structures erected by it for 
 purposes for which it might have taken the ne- 
 cessary lands by compulsory proceedings, even 
 though they at the same time approach structures 
 for which they could not have so taken lands. lb. 
 
 21. The purposes for which a railroad company 
 may condemn lands are not necessarily confined 
 to those needful for its track, but the legislature 
 may confer the power to take lands compulsorily 
 for all needful purposes of the road, and works 
 proper or necessary to enable it to perform the 
 public service authorized by its charter ; and the 
 extent of the power depends in all cases upon 
 the terms of the grant. Ct. App., 1871, N. 1 ork 
 and Harlem R. R. Co. v. Kip, 46 N. Y. (1 Sick.) 
 546. 
 
 22. Passenger depots ; convenient and proper 
 places for storing and keeping cars and locomo- 
 tives when not in use ; proper, secure and conve- 
 nient places, having reference to the public in- 
 terests to be subserved, for the receipt and de- 
 livery of freight and the safe and secure keeping 
 of property while not in transit, are among the 
 acknowledged necessities for the running and 
 operating of a railroad, and the proper prosecution 
 of its business; and a statute authorizing the 
 
RAILROAD COMPANIES. 
 
 641 
 
 taking of such estate as the company may re- 
 quire " for the purposes of its incorporation, or 
 for the purpose of running and operating its 
 road," confers power to take lands for these ob- 
 jects, lb. 
 
 23. An objection that other lands in the vici- 
 nity, equally well adapted to the use of the com- 
 pany as those sought to be acquired, might be 
 obtained by purchase from the owners, is un- 
 tenable. The location of the buildings of tlie 
 company is within the discretion of the man- 
 agers, and the courts cannot supervise it. lb. 
 
 24. The fact that the company is already in 
 psssession of the premises sought to be acquired, 
 having a usufructuary right therein by virtue of 
 a lease for a limited term, does not prevent its 
 taking steps to acquire tlie property in the lands, 
 when the necessities of the road require the erec- 
 tion of costly and permanent structures. lb. 
 
 25. The determination of the board of direct- 
 ors of a railroad company, that certain lands are 
 necessary or required for the purposes of the 
 corporation, is not conclusive on that question, 
 but is subject to review by the courts. Ct. App., 
 1870, Rensselaer §• Saratoga R. R. Co. v. Davis, 
 43 N. Y. (4 Hand,) 137. 
 
 26. The construction of dwellings for employes 
 or officers, and the construction of docks and 
 slips for vessels bringing freight to or taking it 
 from a railroad company, when the facilities of 
 the company are already ample for the present 
 and reasonable prospective business, — Held, not 
 to be such necessary corporate purposes as 
 would justify the condemnation of private prop- 
 erty, lb. 
 
 27. Where an application to condemn lands 
 for the use of a railroad company is based upon 
 an alleged prospective increase of its business, 
 it should be established beyond reasonable doubt 
 that such increase will occur. lb. 
 
 28. Tlie necessity of obtaining the fee of the 
 lands sought for the use of a railroad company 
 is not disproved by showing that they already 
 hold an unexpired lease thereof, or that they 
 might obtain other lands for the same use, by 
 purchase. Sup. Ct., 1871, Matter of N. Y. ^ 
 Sarlem R. R Co., 11 Abb. N. S. 90. 
 
 29. What lands may be acquired. The 
 general power to acquire title to "any real 
 estate required for the purposes of the incorpo- 
 ration," given to railroad companies by the gen- 
 eral railroad act, (Laws of 1850, ch. 140, sec. 13), 
 does not include property already held and dedi- 
 cated by authority of law to another and 
 entirely different public use, as for the purposes 
 of a public park or common. Ct. App., 1873, 
 Matter of Boston and Albany R. R. Co., 53 N. Y. 
 (8 Sick.) 574. 
 
 30. Such authority must be expressly con- 
 ferred, that is, in direct terms or by necessary 
 Implication ; and the implication does not arise, 
 if the powers expressly conferred, can, by rea- 
 sonable intendment, be exercised without such 
 appropriation. lb. 
 
 31. Section 26 of said act, authorizing and 
 regulating proceedings for taking lands when the 
 title is vested in a trustee not authorized to sell, 
 applies to private and individual trusts alone, 
 and not to public trusts, or property held by 
 public corporations for public use- lb. 
 
 32. The provision of sec. 26, ch. 140, Laws of 
 1850, authorizing the Supreme Court to direct 
 the sale of land, the title of which is vested in 
 any trustee not authorized to sell, or in any in- 
 fant, idiot or person of unsound mind, is for the 
 benefit of the trustee, infant, &c., and is not 
 compulsory upon the railroad company. Sup. 
 
 41 
 
 Ct., 1875, In matter of N. Y. Bridge Co., 4 Hun, 
 635. 
 
 33. The duty imposed upon railroad compa/- 
 nies, by the general railroad act, of restoring 
 highways across or along which their roads are 
 constructed, carries with it the necessary powers 
 for the purpose ; and where a change in the 
 track of such a lilghway becomes necessary, 
 the company lias the power to acquire the req- 
 uisite land tlierefor. Ct. App., 1874, People ex 
 rel. Green v, Dutchess and Columbia R. R. Co., 58 
 N.Y. (13Sick.) 152. 
 
 34. A railroad company has no right, under 
 the statutes autliorizing it to acquire lands with- 
 out the owner's ci>nsent, to take land outside tlie 
 limits of its way simply for the purpose of re- 
 moving gravel therefrom, to be used in ballast- 
 ing a distant portion of its road. Sup. Ct., 1874, 
 N. Y. ^ Canada R, R. Co. v. Gunnison, 1 Hun, 
 496. 
 
 85. Additdonallands. In proceedings under 
 ch. 237, Laws of 1869, by a railroad company to 
 acquire additional lands for purposes for wlilch 
 it is tliereby authorized to take them, the com- 
 pany must conform in general to tlie act of 1850, 
 but the petition for tlie appointment of commis- 
 sioners must disclose the specific purpose to 
 which it is intended to apply the land. Sup. Ct., 
 1875, In matter ofN. Y. Cent. ^ Hud. Riv. R. R. 
 Co., 5 Hun, 86. 
 
 36. It is not necessary, in proceedings by a 
 railroad company, which has located and com- 
 pleted its road, to acquire other lands necessary 
 for the convenient transaction of its business, 
 under the act of 1869, that the petition should 
 state all the facts required in the petition origin- 
 ally filed when it first applied to procure land 
 for its road ; or that the maps then required be 
 filed. Sup. Ct., 1875, In matter of the N. Y. Cent, 
 t Hud. Riv. R. R. Co., 4 Hun, 381. 
 
 37. Evidence before commissioners. The 
 testimony of k single witness, given before the 
 commissioners without objection, that he lives 
 in the vicinity of the lot affected, and knows 
 from what others have said wliat is the value of 
 real estate in the vicinity, stating it and the 
 prices paid for other lots in the neighborhood, is 
 competent and sufficient on the question of value. 
 Sup. Ct., 1871, In matter of Rondout and Oswego 
 R. R. Co. V. Deyo, 5 Lans. 298. 
 
 38. The commissioners are not to be bound 
 by the testimony as to value taken before them, 
 but must decide according to tlieir own judg- 
 ment, and may do so even without testimony, 
 lb. 
 
 39. Evidence is admissible before them to show 
 the circumstances under which the land was 
 taken, and its intended use, or situation when 
 appropriated, as part of the res gestce. lb. 
 
 40. An expression of opinion as to the amount 
 of depreciation which will be caused by the road, 
 following the testimony of the witness as to the 
 value of the land, even if erroneous, would not 
 be sufficient cause for reversing the proceed- 
 ings, lb. 
 
 41. The burden of proving by legal evidence, 
 that the facts alleged in the petition for taking 
 real estate are not true, is by sec. 15 of the gen- 
 eral railroad act (ch. 140, Laws of 1850), cast 
 upon the owner of the land, and an affidavit or 
 answer is not sufficient for that purpose. Sup. 
 Ct., 1876, In matter of N. Y. Bridge Co., 4 Hun, 
 635. 
 
 42. Compensation. Except in cases where 
 the title sought to be acquired proves defective, 
 a railroad company liqs \\o right, under the gen- 
 eral railroad act, to enter upon, use and occupy 
 
642 
 
 RAILROAD COMPANIES. 
 
 the land of an individual for the purpose of con- 
 structing its road, or to take and appropriate the 
 timber thereon, against the consent of the owner, 
 before having ascertained the compensation to 
 wliich sucli owner is entitled under the constitu- 
 tion, and the payment thereof. Sup. Ct., 1873, 
 Blodgett v. IJtica ^ Black River R. R. Co., 64 
 Barb. 580. 
 
 43. A company which does so enter upon, 
 occupy, use and appropriate land and timber, 
 witliout first ascertaining and paying compensa- 
 tion, is liable in trespass, the same as an individ- 
 ual would be ; and tlie right of action tlierefor 
 would not be defeated by proceedings for an 
 appraisal and the acquisition of the title, taken 
 a year afterward, and the payment and accept- 
 ance of the damages awarded. lb. 
 
 44. The compensation to be awarded to an own- 
 er of lands, part of which have been taken by a 
 railroad company, should include a just com- 
 pensation. 1. For the value of the part taken, 
 and 2, for the effect which the taking will have 
 in depreciating the market value of what is 
 left. The inconveniences to the residue in 
 respect to the owner's use are not to be con- 
 sidered or allowed for. Sup. Ct., 1865, Albany ^ 
 Susq. R. R. Co. V. Dayton, 10 Abb. N. S. 182. 
 
 45. An award of $500 for the taking of a 
 strip of land worth $60 from a mill site, should 
 not be set aside merely because witnesses stated 
 that in their opinion the depreciation of the mill 
 property was from $1,000 to $1,200. lb. 
 
 46. An easement to carry water over or under 
 adjoining lands for the supply of a water power, 
 is a property right witliin the meaning of the 
 Constitution, and cannot be taken away or 
 diminished in value without compensation. The 
 f Drbearance of the owner to prosecute a railroad 
 company for diverting the course of the channel 
 made to convey such water, and the use of the 
 power after the diversion, do not in any way 
 affect the right to compensation. Ct. App., 
 1873, Arnoldv. Hudson Riv. R. R. Co., 95 N. Y. 
 (10 Sick.) 661. 
 
 47. Where a railroad company takes for its 
 own use a part of tlie line of a private railroad 
 leading from and appurtenant to an iron ore 
 bed owned by the proprietor of such road, an 
 allowance to him of merely the actual value of 
 tlie land taken, and of the ties and track as ex- 
 isting at the time of the taking, is not such just 
 compensation as the law contemplates ; but he 
 should be allowed also for any depreciation in 
 the value of the remainder of his road, and of 
 his ore bed tlirough loss of accommodations for 
 transporting ore, and for damages arising from 
 delay wliile liis road is being used by the com- 
 pany, and wliile he is constructing another. 
 Sup. Ct, 1872, In the matter of Poughkeepsie §■ 
 Eastern R. R. Co., 63 Barb. 151. 
 
 48. Where a railroad company enters premises 
 and lays its track without the consent of the 
 owner, it is a trespasser, and sueli track is a fix- 
 ture and belongs to the owner of the land, and 
 upon the subsequent valuation of the land taken, 
 the then owner is entitled to compensation for 
 such fixture. Sup. Ct., 1876, Van Size v. Long 
 Isl. R. R. Co., 3 Hun, 613. 
 
 49. Discontinuance of proceedings. Un- 
 der tlie provisions of the general railroad act 
 (ch. 140 of 1850, and cli. 237 of 1869), a rail- 
 road company is under no obligation to take 
 land, as to which proceedings liave been in- 
 augurated, until the report of the commissioners 
 to assess damages has been confirmed ; and, 
 until tlien, the company niay renounce tlie 
 riglit, and the court has power on its applica- 
 
 tion to discontinue the proceedings. Sup. Ct., 
 1876, Syracuse, Bing. ^ N. Y. R. R. Co., In 
 matter of, 4 Hun, 311. 
 
 60. tfpon sucli discontinuance the court can, 
 under ch. 270, Laws of 1864, award costs against 
 the company, but not an extra allowance. lb. 
 
 51. Title acquired. Under an act providing 
 for an appraisement, on notice to the owner or 
 owners, of the value of lands taken for railroad 
 purposes, and of any further damages sustained 
 by such owners, directing the payment of the 
 entire appraisement to the owners, and declaring 
 that on the completion of the proceedings the 
 company shall be possessed of the land during 
 its corporate existence for the purposes of its 
 road, — Held, that a judgment creditor was not a 
 necessary party to the proceedings, nor was the 
 title acquired by the company subject to the 
 lien of the judgment, but such lien, by virtue of 
 the proceedings, became divested. Ct. App., 
 1871, Watson V. New York Central R. R. Co., i7 
 N. Y. (2 Sick.) 187. 
 
 52. Final order. Where the original act in- 
 corporating a railroad company provided for an 
 appraisal by a jury to be appointed by the 
 county judge, on the filing of whose inquisition 
 lie was to make a final order in the premises, 
 and by an amendatory act three appraisers ap- 
 pointed by the vice chancellor were substituted 
 for the jury, — Held, that the latter officer was 
 autliorized to make the final order also, though 
 that power was not expressly given. lb. 
 
 53. An order confirming the report of com- 
 missioners of appraisal is valid, although it di- 
 rects the money to be deposited in a bank sub- 
 ject to the order of tlie court, instead of being 
 paid directly to the parties claiming the lands, 
 wliere there are adverse and conflicting claim- 
 ants. Ct. App., 1875, In matter ofN. Y. Cent. ^ 
 Hud. Riv. R. R. Co., 60 N. Y. (15 Sick.) 116 ; 
 Aff'g S. C, 2 Hun, 482. 
 
 64. Whether the order directs that the money 
 be drawn out on an ex parte application or on 
 one made upon notice, does not affect its valid- 
 ity, lb. 
 
 55. Setting aside report. The report of 
 commissioners appointed to take lands for rail- 
 road purposes may properly be set aside where 
 it appears that they acted upon private informa- 
 tion, discrediting the testimony of the claimant, 
 and awarded him a very inadequate amount, 
 and that his failure to oppose the confirmation 
 of the report arose from the neglect or misbeha- 
 vior of his attorney. Sup. Ct., 1875, In matter 
 ofN. r.#- Hud. R. R. Co., 6 Hun, 105. 
 
 56. Limiting appeal. Where notice of an 
 order appointing commissioners, in proceedings 
 by a railroad company to acquire title to lands, 
 was served before the order was entered, — 
 Held, that it was ineffectual for the purpose of 
 limiting the time for appealing therefrom. Ct, 
 App., 1876, In matter of N. Y. Cent. ^ Hud. 
 Rw.HR. Co., 60 N. Y. (15 Sick.) 112. 
 
 57. A subsequent service of a copy of the re- 
 port of the commissioners containing a recital of 
 the granting of tlie order, is not a sufficient notice 
 thereof ; nor does the laud-owner waive liis 
 right of appeal by appearing to oppose the con- 
 firmation of the report. lb. 
 
 58. Revie'w on appesd. The testimony 
 taken before commissioners appointed to ap- 
 praise property taken for railroad purposes, 
 pursuant to statute, and annexed to their report, 
 is to be considered a part of their report in re- 
 viewing tlieir proceedings on appeal. Sup. Ct., 
 1871, In matter of Rondout ^ Oswego R. R. Co. v. 
 Veyo, 5 Lans. 298. 
 
RAILROAD COMPANIES. 
 
 643 
 
 59. Possession, proceedings for. Under 
 the power conferred by ch. 282, Lawa of 1854, 
 upon the Supreme Court, to make all necessary 
 orders and give proper directions to carry into 
 effect the object and intent of the general rail- 
 road law, of which it is amendatory, that court 
 may make an order or issue process to put a 
 railroad company into possession of lands ac- 
 quired by proceedings under the general law, 
 when necessary by reason of resistance on the 
 part of the owners. Ct. App., 1875, In matter of 
 N. Y. Cent. %■ Hud. Rw. R. R. Co., 60 N. Y. (15 
 Sick.) 116 ; Aff'g S. C. sub. nom., People ex rel. 
 Armstrong v. N. Y. Cent, if Hud. Rw. R. R. 
 Co., 2 Hun, 482. 
 
 60. The object of the amendatory act was to 
 give to the courts the same power in those pro- 
 ceedings to carry into effect the object and in- 
 tent of the act, which they had to carry into 
 effect their own judgments or decrees, and to 
 assimilate the practice to that established in 
 actions. lb. 
 
 61. Proceedings. for change of route. In 
 determining its route a railroad company acts 
 arbitrarily, and no owner whose, land is to be 
 taken is entitled to notice, until the route has 
 been actually designated and the map and profile 
 filed. The statute (sec. 22, ch. 140, Laws 1850 ; 
 3 Edm. Stats., p. 625), gives to any one feeling 
 aggrieved by the proposed location the right, 
 within 15 days after written notice thereof, 
 to apply to a justice of the Supreme Court for 
 the appointment of commissioners, who, upon a 
 hearing of the parties, are to affirm or alter the 
 route. Sup. Ct., 1871, Norton v. Wallkill Valley 
 R. R. Co., 42 How. 228 ; S. C, 61 Barb. 476. 
 
 62. That statute does not impose upon the 
 court the duty of examining the merits of the 
 two routes, but that is to be done by the com- 
 missioners, one of whom must be a civil engin- 
 eer. All that is to be done by the justice is to 
 see that there is suflScient cause for appointing 
 the commissioners. lb. 
 
 63. An individual whose land will be crossed 
 and affected by the road, if the line be changed 
 as proposed by the petitioner, is entitled under 
 ch. 560, Laws of 1871, to notice of the applica- 
 tion for the appointment of commissioners ; and if 
 the petitioner fails to give notice to such an indi- 
 vidual, the proceedings of the commissioners 
 will be void, and will be reversed on appeal. 
 S. C,. 63 Barb. 77. 
 
 64. The act of 1850 does not authorize any 
 person to apply for the appointment of commis- 
 sioners, except one whose lands have not been 
 acquired by the company, and after service on 
 him of the notice ' required by that section. 
 Sup. Ct., 1871, People ex rel. E. i- G. V. R. R. Co. 
 V. Tubbs, 59 Barb. 401. 
 
 65. Such person must feel aggrieved by the 
 proposed location over or through his land, and 
 must set forth his objections thereto in his peti- 
 tion, and a copy of such petition should be served 
 on the railroad company as a part of the notice 
 of the hearing before the commissioners. lb. 
 
 66. The statute provides for a hearing of the 
 parties, which, of course, includes the railroad 
 company, before the commissioners. lb. 
 
 67. The statute contemplates but one board 
 of commissioners in each cpunty, and that all 
 alterations to be made in the proposed route in 
 such county should be made by that board. S. 
 C, 49 N. Y. (3 Sick.) 356. 
 
 68. The power of the commissioners is not re- 
 stricted to that part of the proposed route lying 
 within the lands of the party who procured their 
 appointment, but extends to the whole line with- 
 
 in their county, and they can make any altera- 
 tions therein which may be necessary to obviate 
 any well founded objections of the party ag- 
 grieved, lb. 
 
 69. In exercising their powers, it is their duty 
 to either affirm the route proposed, or make all 
 necessary alterations, and complete them so as 
 to preserve the continuity of the line ; and that 
 being done, the route through the county is es- 
 tablished, lb. 
 
 70. Commissioners first appointed, upon appli- " 
 cation of an occupant of lands lying on the pro- 
 posed line of a railroad, organized under the 
 general act, have exclusive jurisdiction of the 
 entire subject of the location of the route through 
 the county in which the lands of such applicant 
 are situated, and their determination is ffnal 
 upon all questions relating thereto. Ct. App., 
 1871, TMng Island R. R. Co., in. re, 45 N. Y. (6 
 Hand,) 364. 
 
 71. Where commissioners have been once 
 regularly appointed, that will preclude the ap- 
 pointment of new commissioners on application 
 of any other party aggrieved ; but such appoint- 
 ment can only be made after all notices required 
 by law have been served, and the fifteen days 
 have expired within which any of the persons 
 aggrieved have a right to apply for such ap- 
 pointment lb. 
 
 72. An appointment made before that time 
 will be premature, and will be no impediment to 
 a second appointment. lb. 
 
 III. Powers, duties and liabilities. 
 
 73. Contract to carry beyond terminus. 
 
 A railroad company has the power and right 
 to contract, and subject itself to liability as a 
 common carrier, for the transportation of freiglit 
 through another State than'its own, over another 
 railroad, and beyond its own terminus. U. S. 
 Sup. Ct., 1875, Oqdensburg ^ L. C. R. R. Co. v. 
 Pratt, 49 How. 84. 
 
 74. A railroad company will not be bound by 
 a contract to carry goods beyond the terminus 
 of its line, made by a local station agent, unless 
 the power to make it has been expressly con- 
 ferred upon him, or it has been so exercised by 
 those possessing the general authority as to have 
 become an established business of the road. Sup. 
 Ct., 1871, Wait V. Albany ^ Susq. R. R. Co., 6 
 Lans. 475. 
 
 75. Contract -with passengers. Where a 
 ticket purchased by a traveller entitled him to a 
 single passage from Buffalo to New York, upon 
 presentation of the same, with checks attached, 
 to the conductor, and of the checks, one en- 
 titled him to a passage from Buffalo to 
 Albany and the other from Albany to New 
 York, both being in terms forfeited if detached 
 from the ticket, — Held, that the passage must 
 be continuous, without the right of stopping off 
 at intermediate stations aflH renewing tlie jour- 
 ney by subsequent trains, and that, if the liplder 
 of the ticket, either voluntarily or negligently, 
 detaches the checks therefrom, he would lose all 
 rights thereunder. Com. App., 1872, Hamilton 
 V. New York Central R. R. Co., 61 N. Y. (6 Sick.) 
 101. 
 
 76. A railroad company has the right to limit 
 the time within which a passenger ticket shall be 
 recognized by the conductor as valid ; and where 
 a lay-over ticket, plainly limited on its face " to 
 be used within five days from date," is sought 
 to be used after the expiration of five days, the 
 conductor is not bound to receive it, but may 
 put the passenger off the train if he refuses to 
 
644 
 
 RAILROAD COMPANIES. 
 
 pay his fare. Sup. Ct., 1874, Wentz v. Erie Ry. 
 Co., 3 Hun, 241. , ^ , . , , 
 
 77. The reception and checking of baggage 
 and puncturing of such ticket by the haggage 
 master are not a waiver of the limitation, he 
 having' no authority by virtue of his employ- 
 ment to waive it. lb. 
 
 78. Railroad companies, in the exercise of 
 their right to make reasonable regulations for 
 conducting their business, may insist and pro- 
 vide that a passenger ticket shall be used only 
 on the day on which it is issued, and their serv- 
 ants will incur no liability in enforcing such a 
 regulation. Com. App., 1874, Elmore v. Sands, 
 54 N. Y. (9 Sick.) 512. 
 
 79. The same conclusion is reached, whether 
 the ticket be regarded' as a contract, or, as seems 
 the bettel- doctrine, as a token that the holder 
 lias paid his fare and is entitled to a passage as 
 thereon indicated. In either case, riding con- 
 trary to its terms, he cannot complain if the 
 conductor, in obeying the regulations of the 
 company, puts him off the train. lb. 
 
 80. Crossing high'ways. The crossing of 
 highways by a railway at a grade is not unlaw- 
 ful ; it is therefore neither a nuisance nor a tres- 
 pass at law, whatever it may be in fact, nor does 
 such crossing now require the highway commis- 
 sioners' consent thereto. Sup. Ct. Sp. T., 1871, 
 Baxter v. Spuyten Duyvil, etc. R. R. Co., 11 Abh. 
 N. S. 178; S.'C., eiBarb. 428. 
 
 81. A railroad company authorized by law to 
 build a railroad, and having obtained authority 
 from thfe Supreme Court to construct it " upon 
 .Tnd along" a highway, cannot be prevented by 
 injunction from so constructing it, at the instance 
 of tlie highway commissioners. lb. 
 
 82. Fare, rights as to. Where a railroad 
 company, having the right to charge fare at the 
 rate of four cents a mile between certain points 
 on its line, leases its track, property and fran- 
 chises to another company, which, under the act 
 of 1855, (3 Edm. Stats. 647), acquires the stock 
 of tlie former, the latter company owning an- 
 other line between the same points, on which 
 the fare is limited to two cents per mile, does 
 not by such lease and the subsequent action 
 under the statute, acquire a right to charge four 
 cents a mile over the last named track, but only 
 over the track on which its lessor had thatright. 
 Ct. App., 1871, Fisher v. New York Central and 
 H. R. R R. Co., 46 N. Y. (1 Sick.) 644. 
 
 83. A railroad company having several routes 
 between two places, the one over which they are 
 accustomed to carry through passengers being 
 direct and shorter than the other, has a right to 
 claim from a passenger who purchases a through 
 ticket, and for his own convenience takes the 
 indirect route, extra fare for the additional miles 
 on that route. Sup. Ct., 1875, Bennett v. N. Y. 
 Cent, ir Hud. Riv. R. R. Co., 6 Hun, 598. 
 
 84. Pann crossings. The right of election 
 as to the location of farm crossings, required by 
 statute to be constructed by railroad companies 
 for the use of the proprietors of lands adjoining 
 the road, rests with the company and not with 
 the proprietors ; but the interests of both par- 
 ties should be consulted in making the election, 
 and if the proprietor is subjected to needless in- 
 convenience, he may maintain an action there- 
 for, either to compel specific performance of the 
 duty imposed, or for the recovery of damages. 
 Com. App., 1873, Wademan v. Albany and Susq. 
 R. R. Co!, 51 N. Y. (6 Sick.) 668. 
 
 85. Fences. The general railroad act re- 
 quires every company organized under it to 
 erect and maintain fences on the sides of its 
 
 road, and the mere fact that it has leased its 
 road, or is no longer in possession of it, does not 
 relieve such company from that obligation. Sup. 
 Ct., 1875, Ditchett y. Spuyten Duyvil §■ Port M. R. 
 R. Co., 6 Hun, 165. 
 
 86. A railroad company which neglects to 
 maintain fences and cattle-guards as required 
 by statute, is liable for an injury to a horse 
 which strayed upon its track, even though the 
 owner was not an adjoining proprietor, and it 
 does not appear how or when the animal got 
 on the track, and even though the owner may 
 have been negligent in permitting it to run at 
 large, or to stray upon lands adjoining the rail- 
 road. Sup. Ct., 1875, Rhodes v. Utica, Ithaca ^ 
 Elm. R. R. Co., 5 Hun, 344. 
 
 87. A railroad company, bound by law to 
 maintain fences and cattle-guards at crossings, 
 is liable in damages for killing a cow, which, be- 
 ing only allowed to go out of her stable in charge 
 of a boy employed for that purpose, is driven by 
 him to an open lot adjoining the track near a 
 crossing where the company's fences are tempor- 
 arily down, and there left by him for a short 
 time, during which she strays upon the track 
 and is killed by a passing train. The temporary 
 absence of the boy without the knowledge or 
 consent of the owner is no defense. Sup. Ct., 
 1874, Brady v. Rensselaer ^ Sar. R. R. Co., 1 
 Hun, 378. 
 
 88. Lease of road. A lease of a railroad, 
 with all the lands upon and across which it or 
 any part of it, or its machine shop, warehouses, 
 freight or passenger depots or buildings are con- 
 structed, and their appurtenances, includes not 
 only the railroad track and depots, but all land 
 acquired for use in operating the road, the use 
 of which, though not absolutely necessary, is ad- 
 vantageous and beneficial in connection there- 
 with, and the being deprived of which would 
 render the use of the road or any part of it less 
 convenient and valuable ; and it will make no 
 difference that the use has not been actually 
 obtained at the time of execution of the lease, 
 if the right to use has been acquired. Ct. App., 
 1872, In the matter of the application of the New 
 York Central R. R. Co., 49 N. Y. (4 Sick.) 414. 
 
 89. Liability for acts of passenger. A 
 railroad company are bound to exercise the ut- 
 most vigilance in maintaining order on its cars 
 and guarding its passengers against violence, 
 but it is not liable for a wanton injury commit- 
 ted by one passenger upon another, unless it oc- 
 curred through the neglect of the company's 
 servant to discharge that duty or to remove a 
 dangerous person from whom an injury to other 
 passengers might reasonably have been antici- 
 pated. Ct. App., 1873, Putnam v. Broadway Sr 
 Seventh Ave. R. R Co., 15 Abb. N. S. 195 ; S. C, 
 55 N. Y. (10 Sick.) 108 ; Kev'g S. C, 36 N. Y. 
 Supr. (4J. &Sp.) 195. 
 
 90. The company has authority to refuse to 
 receive as a passenger, or to expel after he is re- 
 ceived, one who so demeans himself as to en- 
 danger the safety or interfere with the reason- 
 able comfort and convenience of other passen- 
 gers ; and it is the duty of the person in charge 
 of the train to exercise that power, with all the 
 means at his command, whenever occasion re- 
 quires, lb. 
 
 91. Mere intoxication on the part of a passen- 
 ger is not sufficient to justify his expulsion, but 
 he must in consequence thereof be dangerous or 
 annoying to others. lb. 
 
 92. The company can only be charged for the 
 neglect by its servant of some duty arising from 
 circumstances of which he was, or in the dis- 
 
RAILROAD COMPANIES. 
 
 645 
 
 charge of his duties, ought to have been cogni- 
 zant, lb. 
 
 93. — for baggage. A railroad company 
 which has no interest in or control over the car- 
 riage of passengers by a connecting steamboat 
 line, is not liable for baggage belonging to a pas- 
 senger on its own line, lost by such steamboat 
 line, even though it has given a check for such 
 baggage to be carried by the steamboat line to 
 its terminus. N. Y. C. P., 1872, Green v. N. Y. 
 Central R. R. Co., 12 Abb. N. S. 473 ; S. C, 4 
 Daly, 653. 
 
 94. The provision of sec. 9, ch. 270, Laws of 
 1847 (3 Edm. Stats. 612), regulating the Uability 
 of connected railroads, does not apply to the 
 case of a connecting steamboat line ; and a 
 railroad company has no power to contract with 
 such a steamboat line for the carriage of bag- 
 gage beyond its own route. lb. 
 
 See title Cakeiers. 
 
 95. — for freights. Where the charter of 
 a railroad company grants it the right of charg- 
 ing storage upon freight, after notice of arrival 
 to consignee and the lapse of a certain time 
 thereafter, and in the same clause makes it re- 
 sponsible only as warehouseman for freight 
 " awaiting delivery " in any of its depots, sucli 
 exemption is to be construed as applying 
 only to goods arrived at their destination, and 
 as to which the company has availed itself of 
 tlie right to charge storage, and not to goods 
 awaiting delivery to another carrier. Ct. App., 
 1871, Mills V. Michigan Central R. R. Co., 45 
 N. Y. (6 Hand,) 622. 
 
 96. — to employes. While it may be con- 
 ceded to be the duty of a railroad company to 
 prescribe, by means of time tables or other suit- 
 able modes, regulations for running their trains 
 with a view to their safety, it is obvious that 
 obedience to those regulations must be entrusted 
 to the employes having charge of the trains. 
 For negligence in observing such regulations, 
 therefore, or for disobedience of them, result- 
 ing in injury to an employe, without other proof 
 of negligence, the company is not liable. Ct. 
 App., 1874, Rose v. Boston and Albany R. R. Co., 
 58 N. Y. (13 Sick.) 217. 
 
 97. And in case of such an injury, it will be 
 presumed in the absence of affirmative proof, that 
 proper regulations were prescribed by the com- 
 pany, and that the fault is that of an emplove 
 lb. 
 
 98. There is no holding in this State, that a 
 railroad company is bound to furnish a safe 
 road bed, or in default thereof is liable for an 
 injury to one of its employes by reason of sucli 
 default. Sup. Ct., 1872, Tinney v. Boston and Al- 
 bany R. R. Co., 62 Barb. 218 ; Affd, S. C, 52 
 N. Y. (7 Sick.) 632. 
 
 99. — to laborers. A contract between the 
 laborer and the contractor for a specific sum as 
 wages for the day or month, is not necessary to 
 entitle him to recover from the railroad com- 
 pany, under sec. 12, ch. 140, Laws 1850 (3 Edm. 
 Stats. 620), but an implied contract to pay what 
 the labor is worth is sufficient. Sup. Ct., 1871, 
 Chapman v. Utica S^ Black River R. R. Co., 4 
 Lans. 96. 
 
 100. The notice to the company will be in 
 time if served within 20 days after the last 
 day's service claimed for ; and it may as prop- 
 erly be served on the chief engineer of the road 
 as on the assistant engineer in immediate charge 
 of the section on which the work is done. lb. 
 
 101. A person who engages for the labor of 
 himself and team at an agreed price for both, is 
 not a " laborer," within the meaning of the gen- 
 
 eral railroad act, giving to persons of that class 
 an action against the railroad company for debts 
 due from contractors ; and he cannot maintain 
 any action under that statute. Grovee and 
 Peckuam, JJ., dissent. Ct. App., 1871, Balch 
 V. N. Y. and Oswego Midland R. R. Co., 46 N. 
 Y. (1 Sick.) 521. 
 
 102. — to passengers. Although a railroad 
 company is bound to exercise the utmost care 
 and diligence to secure tlie safety of its passen- 
 gers, it does not insure them against injury in 
 all events, whether caused by its negligence or 
 not ; and it is not liable for injury happening 
 through a vis major, as by tlie breaking of a 
 sound rail occasioned by extreme cold. Com. 
 App., 1871, McPadden v. New York Central R. 
 R. Co., 44 N. Y. (5 Hand,) 478 ; Eev'g S. C, 47 
 Barb. 247. 
 
 103. A railroad company is liable to a passen- 
 ger for the act of its brakeman, who, having 
 been directed to notify passengers about to enter 
 a certain car that it was reserved for ladies, and 
 to show them to some other car, remoyed a man 
 from Buch car who persisted in entering it after 
 being forbidden to do so, such act being done in 
 the prosecution of the company's business, even 
 though in excess of its order. Sup. Ct., 1875, 
 Peck V. N. Y. Cent. ^ Hud. Riv. R. R. Co., 4 Hun, 
 236. 
 
 104. Eailroad companies have the right to 
 completely separate their passenger from their 
 freight business, and to restrict the authority of 
 conductors of freight trains to such only as is 
 incident to the moving of freight ; and when 
 they have done so, such a conductor cannot, by 
 inviting a person to ride on a freiglit train, create 
 tlie relation of carrier and passenger between 
 the company and such person, so as to make the 
 company liable for an injury to him caused by 
 the negligence of its servants. Eabl, C, dis- 
 sents. Com. App., 1874, Eaton v. Delaware 
 Lack. Sr W. R. R. Co., 57 N. Y. (12 Sick.) 382. 
 
 105. Where the conductor of a coal train, whose 
 printed instructions from the company forbade 
 passengers riding on coal trains, invited a per- 
 son who had no notice of such regulation to ride 
 on his train, with the promise to get him em- 
 ployment as a brakeman ; such train having no 
 car attached for the accommodation of passen- 
 gers, and it not appearing that passengers were 
 either habitually or occasionally allowed to ride 
 thereon, nor that such conductor had any au- 
 thority to engage brakemen, — Held, that the 
 person so riding was not a passenger, nor law- 
 fully on the train, and tlie company was not lia- 
 ble to him for an injury caused by a. collision 
 with another train. lb. 
 
 106. Liability for negligence. An assignee 
 or receiver of a railroad company appointed in 
 proceedings in bankruptcy, involuntary on its 
 part, is not the servant, or agent of the corpora- 
 tion in such sense as to charge the latter witli 
 his negligence in operating the road. Ct. App., 
 
 1874, Metz V. Buffalo, Carry and P. R. R. Co., 
 58 N. Y. (11 Sick.) 61. 
 
 107. Owners of property to be transported do 
 not, by placing it in a car which tliey know to 
 be defective and unsuitable, assume the risk of 
 sucli defects, and relieve the railroad company 
 from responsibility therefor. U. S. Sup. Ct., 
 
 1875, Ogdensburgh 3r L. G. R. R. Co. v. Pratt, 49 
 How. 84. 
 
 108. It seems that if the company is negligent 
 about furnishing cars, it will not be relieved 
 from responsibility, even though there be an 
 agreement tliat it shall not be liable. lb. 
 
 109. The right of a railroad company to lay 
 
646 
 
 RAILROAD COMPANIES. 
 
 its track in a public street, carries with it the 
 obligation to lay it properly and keep it in 
 repair, and for injuries o'cuurring through a 
 failure of duty in either respect the company i» 
 liable. Ct. App., 1872, Worster v. Forti/ Second 
 Street Railroad Company, 50 N. Y. (5 Sick.) 203. 
 Aflf'g S. C, 3 Daly, 278. 
 
 110. No notice to the company of a patent 
 defect in such track is necessary ; but tlie exist- 
 ence of such a defect is, in itself, prima fade 
 negligence, for which the company will be liable, 
 unless tliey can show other facts which over- 
 come that presumption, lb. 
 
 111. A railroad company is liable for an in- 
 jury to a horse caused by its neglect to keep its 
 roadway in repair at the crossing of a highway 
 in tlie Cattaraugus Indian Beservation, the State 
 having power to construct a highway there. Sup. 
 Ct., 1874, France v. Erie Ry. Co., 2 Hun, 513. 
 
 112. It is tlie duty of railroad companies to 
 use on their trains, all improvements in cars, 
 machinery, brakes, &c., commonly used by other 
 cnmpanies ; and not to use them is negligence, 
 for which they are liable to the person injured, 
 whether a passenger or one crossing the track, 
 if the improvement would, in appreciable degree, 
 have tended to prevent the injury. Sup. Ct., 
 1873, Costello v. Syracuse, Bing. ^N. Y.R. R. Co., 
 65 Barb. 92. 
 
 113. A railroad company is bound to use 
 greater care to avoid injuring children and the 
 lame and sick than those who are of age or 
 capable of taking care of themselves. lb. 
 
 114. Tlie rights of citizens and of a railroad 
 company to the highway crossings are not equal, 
 but the latter has the preference, and a citizen 
 approaching such crossing is bound to exercise 
 care and prudence, and if he crosses in front of 
 an approaching train, he does so at his peril. 
 Com. App., 1871, Warner v. New York Central 
 R. R. Co., 44 N. Y. (5 Hand,) 466; Rev'g S. C, 
 45 Barb. 299. 
 
 115. A railroad company, which gives the 
 signals prescribed by statute, is not restricted in 
 the rate of speed at which its trains may be run 
 at highway crossings, or elsewhere outside of a 
 municipality ; nor is it liable for damages result- 
 ing from a high rate of speed. lb. 
 
 116. It is not enough in all cases to absolve a 
 railroad corporation from the charge of negli- 
 gence in respect to highway crossings, that the 
 statutory signals are given. The circumstances 
 may be such as to require other precautions to 
 be taken, but only such can be required as 
 have respect to the moving of its trains and tlie 
 occupation of the track; it cannot be called 
 upon to do any act outside of or disconnected 
 with its actual operations. Ct. App., 1874, 
 Weber v. New York Central and Hudson Riv. R. 
 R. Co., 68 N. Y. (13 Sick.) 451. 
 
 117. The duty of posting flag-men, or having 
 servants or agents, or placing gates or other 
 obstructions, or of giving special or personal 
 notice to travellers at railway crossings is not 
 required of it, and their omission will not charge 
 it with negligence. lb. 
 
 118. Wliere the situation of a highway cross- 
 ing is such that approaching trains cannot be 
 seen by a traveller until within a few feet of the 
 track, and the ordinary signals, by bell and 
 whistle, cannot be heard, the liability of the 
 railroad company is not discharged by the giving 
 of such signals ; but it is bound to provide some 
 more efficient means of notice, and its neglect so 
 to do will render it liable for the resulting dam- 
 ages Ct. App., 1871, Richardson v. New York 
 Central R. R. Co., 45 N. Y. (6 Hand,) 846. 
 
 119. A railroad company undertaking the 
 transportation of cattle under a special written 
 contract, occupies the position of a private car- 
 rier for hire, and is only liable for the perform- 
 ance of the duty undertaken according to its 
 terms, or for some wrongful act, either wilful or 
 negligent. Ct. App., 1872, Penn v. Buffalo and 
 Erie R. R. Co., 49 N. Y. (4 Sick.) 204 ; Rev'g S. 
 C, 3 Lans. 443. 
 
 120. Where, by such a contract, the shipper 
 assumed all risk of injuries to the cattle " from 
 delays, or in consequence of heat, suffocation or 
 the ill effects of being crowded upon the cars," 
 and agreed to load and unload at his own risk, 
 the company furnishing assistance as required ; 
 it being further agreed that his agent should 
 ride free and take charge of the stock, wliich he 
 did, — Held, that the company was not liable for 
 the death of a portion of the cattle during a 
 detention of the train for three days by a snow- 
 storm, although the loss might have been avoid- 
 ed by building a platform and unloading the 
 cattle, which it refused to do upon request. 
 Peckham, J., dissents. lb. 
 
 121. The duty of the carrier as to unloading 
 is limited to the final terminus of the transporta- 
 tion, and it is not bound to assist in unloading 
 at an intermediate station, or to furnish facilities 
 therefor. lb. 
 
 See titles Cakriers ; Neglioence. 
 
 122. Fovrei to borroT^ money. The stat- 
 ute (Ch. 140, Laws 1850, sec. 28, subd. 10 : 3 Edm. 
 Stats. 628), gives to every railroad corporation 
 the power to borrow money for completing, 
 furnishing and operating its road, to issue bonds 
 for any amount so borrowed, and to mortgage 
 its corporate property and franchise to secure 
 such bonds, or any debt contracted for those 
 purposes. The Erie railway company )iad 
 power, therefore, to issue bonds " to consolidate 
 its funded debt, obtain the money and material 
 necessary for perfecting its line of railway, 
 enlarging its capacities and extending the facili- 
 ties thereof," and to execute a mortgage to secure 
 such bonds ; such purpose being within the scope 
 of the powers given by that statute. Sup. Ct., 
 Cir., 1871, Thompson v. Erie Railway Co., 42 
 How. 68 ; S. C, 11 Abb. N. S. 188. 
 
 123. Power to sell lands. Where land is 
 deeded to a railroad company in fee, it has 
 power, when such land is no longer necessary 
 for the purposes of the corporation, to sell and 
 convey the same. Ct. App., 1874, Yates v. Van 
 DeBogert. 56 N. Y. (11 Sick.) 526. 
 
 124. Right to expel from cars. A pas- 
 senger who holds a ticket for a station at 
 which all the trains do not stop, has no right to 
 take a train which does not regularly stop at 
 such station, without paying his fare to the 
 next station at which it does stop, and if he 
 refuses to pay he may be put off by the con- 
 ductor before reaching the station to which he 
 is ticketed. Sup. Ct., 1871, Fink v. Albany ^ 
 Susq. R. R. Co., 4 Lans. 147. 
 
 125. A railroad company owning and operat- 
 ing two tracks between S and K upon different 
 routes, one of which is longer than the other, 
 and having established regulations requiring 
 passengers by the longer route to pay 45 cents 
 more than those by the shorter route, and direct- 
 ing their conductors on the longer route to expel 
 from the cars passengers who refuse to pay the 
 fare required thereon, is not liable to a passenger 
 who, knowing of the two routes and ot the regu- 
 lations in relation thereto, purchased a ticket 
 for the shorter route and took passage on the 
 train going on the longer route, and was ejected 
 
RATIFICATION— RECEIVER. 
 
 647 
 
 by the conductor at the first station reached 
 upon his refusal to pay the additional fare re- 
 quired. Sup. Ct., 1871, Adwm v. N. Y. Cent. ^ 
 Hud. Riv. R R. Co., 60 Barb. 590. 
 
 126. The fact that the conductor punclied tlie 
 ticket did not affect his right to expel the pas- 
 senger at a station to which he was entitled to 
 ride, and he was not bound to do so before ar- 
 riving at that station. lb. 
 
 127. A passenger, whose ticket for a point be- 
 yond a station where he is required to change 
 cars is taken up by the conductor before reach- 
 ing that station, is entitled to be carried to the 
 point to which he has paid without payment of 
 additional fare, and, if he is put off tlie train by 
 the conductor for not producing his ticket, the 
 company is liable to him therefor to tlie extent 
 of compensatory damages. Sup. Ct., 1876, 
 Townsend v. New York Cent. ^ Hud. Riv. R. R. 
 Co., 4 Hun, 217. 
 
 128. A regulation requiring passengers upon a 
 railroad train either to present evidence to the 
 conductor of their right to seats when reasona- 
 bly required so to do, or. to pay fare, is reason- 
 able, and for non-compliance therewitli a passen- 
 ger may lawfully be excluded from the cars. 
 And the wrongful taking of the passenger's 
 ticket by the conductor of a previous train, in 
 wliich part of his journey has been performed, 
 does not exonerate him from compliance with 
 such regulation. Ct. App., 1874, Townsend r. 
 New York Cent. #• Hud. Riv. R. R Co., 86 N. T. 
 (11 Sick.) 295. 
 
 129. A passenger who has paid his fare has a 
 right to resist the conductor's attempt to put him 
 oH the car, especially when the car is in motion. 
 Sup. Ct., 1875, English v. Delaware ^ Hudson 
 Canal Co., 4 Hun, 683. 
 
 RATIFICATION. 
 See CoNTKACT ; Fkinoipal and aoent. 
 
 REAL ACTION. 
 See Ejectment. 
 
 REAL PROPERTr. 
 See Deeds. 
 
 RECEIPT. 
 
 1. In full. A contractor for the construction 
 of a school-house, who, in compliance witli the 
 requirements of his contract, at tlie time of re- 
 ceiving his final payment, files a certificate stat- 
 ing " that all claims and demands for extra work 
 or otherwise,under or in connection with the con- 
 tract have been presented to the said school 
 
 officers, and the • amount to be paid therefor 
 
 agreed upon ; and I further certify that the 
 
 last payment under said contract—^ — will be in 
 full of every claim or demand, except the amount 
 so agreed upon for extra work," thereby extin- 
 guishes any claim he might have for damages on 
 account of being delayed in liis work. Sup. Ct., 
 
 1875, Coulter v. Boara of Education, etc. of New 
 York, i Hun, 569. 
 
 2. Where a debtor, owing money on several 
 notes to a woman in feeble health, got possession 
 of two of them, whieii were due, without pay- 
 ing the whole amount called for by them, claim- 
 ing to liave paid $110 on them, which she denied, 
 and they afterward settled the dispute by liis 
 paying her one-half tlie amount, and she signed 
 a receipt drawn by him, as follows : "Reckoned 
 and settled with J H C, and received full pay- 
 ment of all demands either in law or equity, up 
 to this date, — Held, tiiat such receipt was open 
 to explanation, and should be limited to the 
 subject matter in controversy between the par- 
 ties, which was tlie $110; and that it did not 
 cut off the creditor's claim upon another note, 
 wliich was not due at the date of the receipt. 
 Sup. Ct, 1878, Josli/n v. Capron, 64 Barb. 598. 
 
 RECEIVER. 
 See Pkactioe. 
 
 1. Appointment. A receiver of a corpora- 
 tion can now be appointed, after execution re- 
 turned unsatisfied, only in accordance with the 
 provisions of cli. 151, Laws 1870, which super- 
 sede tliose of R. S., title 4, ch. 8, part 3. Sup. 
 Ct., 1874, Clinch v. South Side R. R. Co. of Long 
 7s/., 1 Hun, 636. 
 
 2. In an action to foreclose a mechanic's lien, 
 the plaintiff cannot hare a receiver of the rents 
 and profits of the premises appointed, pending 
 the suit, notwithstanding the insufficiency of tlie 
 premises to pay his lien and other incumbrances 
 thereon, because such lien gives him no right to 
 the rents. N. Y. C. P., Sp. T., 1871, Meyer v. 
 Seebald, 11 Abb. N. S. 326, n. 
 
 3. Construction of order appointing. An 
 order appointing a receiver of a railway corpo- 
 ration and directing him, from the receipts of 
 tlie road, to pay all debts " owing to the laborers 
 and employes " of the company, " for labor and 
 service actually done in connection with its rail- 
 ways," construed as including a claim for attor- 
 ney and counsel fees in litigation connected with 
 the road. Ct. App., 1874, Gurnet/ v. Atlantic ^ 
 Great Western Railway Co., 58 N. Y. (13 Sick.) 
 358. 
 
 4. Control of court over. When It appears 
 to the court in an action against a corporation, 
 that tlie appointment of a receiver of the assets 
 of the corporation in a prior action was made 
 collusively and for the purpose of defrauding 
 the plaintiff in the subsequent action to which 
 such receiver is a partjf, it may make an order 
 in that action on notice, vacating the appoint- 
 ment of such receiver and appointing another 
 in his place. Sup. Ct., 1875, Wilson v. Barneii, 
 5 Hun, 257. 
 
 5. There can be no doubt of the power of the 
 court to control receivers appointed by it in the 
 settlement of all claims against the property 
 they hold ; and as officers of the court it is their 
 duty to obey its orders, and for a refusal to do 
 so, the court can and ought to remove them. 
 Sup. Ct., 1873, Guardian Savings Inst. v. Bowling 
 Green Savings Inst., 65 Barb. 275. 
 
 6. It is the duty of the court to compel the 
 settlement of claims affecting the property in 
 such a way as sliall be most expeditious and will 
 save litigation and expense ; and for that purpose 
 it may, at any time, and with or without the 
 
648 
 
 RECEIVER. 
 
 consent of the receiver, order a reference, and 
 on a report of tlie facts and evidence by the 
 referee, malte a final order in tlie matter. lb. 
 
 7. A creditor wlio permits proceedings com- 
 menced by liim for tlie appointment of a receiver 
 to lie dormant for months, until other creditors 
 commence like proceedings, should not be per- 
 mitted to gain precedence oyer them through 
 consent of defendant's attorney ; especially 
 where it is apparent that there has been collusion 
 between such parties to defeat the claims of the 
 other creditors ; but the order appointing a re- 
 ceiver on his application should be set aside, and 
 the order appointing a receiver upon application 
 of the other creditors confirmed. Sup. Ct., 
 1871, Nat. Mechanics Banking Asso. r. Mariposa 
 Co., 60 Barb. 423. 
 
 8. A court which first acquires jurisdiction 
 and appoints a receiver of a fund, has the sole 
 jurisdiction thereof, and is bound in the exercise 
 of its judicial powers, to make administration 
 thereof, either by restoring it to the party from 
 whom it was taken, or by delivering it to the 
 party who, in the regular course of litigation, in 
 its own court, and in the same action, shall be 
 adjudged to be entitled to it. N. Y. Supr. Ct., 
 1874, O'Mahmy v. Belmont, 37 N. Y. Supr. (5 J. & 
 Sp.) 880. 
 
 9. The possession of such receiver cannot be 
 interfered with by a receiver subsequently ap- 
 pointed, or by any proceeding in any other action 
 brought in any other court; especially not, 
 where such second receiver is appointed without 
 notice to the defendants. lb. 
 
 10. The proper proceeding by a creditor of a 
 fund in the hands of a receiver, where it appears 
 that claims allowed and paid by him out of the 
 same by an order of court are improper or ficti- 
 tious, is to apply to the court to be made a party 
 to the suit in which the order was made, and to 
 have sucli order vacated, rather than to com- 
 mence an independent action for that purpose. 
 Sup. Ct., 1875, Schenck v. Ingraham, 4 Hun, 67 ; 
 6 Hun, 397. 
 
 11. If a receiver of a corporation fraudulently 
 obtains an order for the sale of a debt due the 
 corporation, and sells the same in pursuance 
 thereof at an inadequate price, a creditor of the 
 corporation may maintain an equitable action to 
 vacate the order and set aside the sale, and is 
 not limited to a motion for that relief in the 
 action wherein the receiver was appointed. Ct. 
 App., 1875, Hacklei) v. Draper 60 N. Y. (15 Sick.) 
 88; Aff'gS. C, 2 Hun, 523. 
 
 12. Duties and pow^erd. A receiver ap- 
 pointed by tlie court is so appointed not on behalf 
 of the complainant or of the defendant only, but 
 for the benefit of all parties who may establisli 
 rights in the cause ; and the money in his hands 
 is in custodia legis for whoever may make out a 
 title to it. He is the mere instrument of the 
 court, and must be controlled, and will be pro- 
 tected by it. N. Y. Supr. Ct., Sp. T., 1872, Corei/ 
 V. Long, 43 How. 492 ; S. C, 12 Abb. N. S. 427. 
 
 13. He sliould be and remain indifferent bet- 
 ween the parties, and not interfere in litigation 
 between them, and will not be permitted, except 
 upon consent of all parties, to employ the attor- 
 neys or counsel of either party to assist him in 
 tlie discharge of his duties, lb. 
 
 14. Accounting. A receiver of a stock of 
 goods, having no more than the ordinary power 
 conferred on receivers except such as he might 
 derive from an ex parte order irregularly granted, 
 empowering and directing him to sell the pro- 
 perty at public or private sale, pay the neces- 
 sary charges and disbursements for keeping and 
 
 selling them, and invest the proceeds, cannot be 
 allowed on accounting for wages paid to deputy 
 receivers ; nor for exorbitant wages paid to the 
 plaintiff and others as salesmen ; nor for wages 
 of an unnecessary number of keepers ; nor for 
 fees to counsel employed without authority from 
 the court ; and where his conduct has caused un- 
 necessary expense he may be charged therewith, 
 lb. 
 
 15. Action by. A receiver of the property 
 of the defendant in an action, appointed for the 
 purpose of enforcing payment of money award- 
 ed therein, has power under sec. 1, ch. 314, Laws 
 1858 (4 Edm. Stats. 483), to maintain an action 
 to set aside a fraudulent conveyance of property 
 made by the d^endant, although the same had 
 never been assigned to such receiver. N. Y. C. 
 P., Sp. T., 1872, Foster v. Tmmshend, 12 Abb. N. 
 S. 469. 
 
 16. In such action he may make all parties 
 concerned in, or claiming an interest in the prop- 
 erty through such conveyance, defendants. lb. 
 
 17. Completion of contract by. Ordi- 
 narily a court of equity will not undertake to 
 carry on the business of contending parties by 
 means of a receiver, yet cases sometimes arise 
 where the refusal to do that would result in 
 great loss to the persons interested, and where 
 the exercise of such authority would be justified. 
 Sup. Ct., 1875, Heatherton v. Hastings 5 Hun, 
 459. 
 
 18. Where a contest arose between partners 
 engaged in the performance of an important 
 contract causing a suspension of the work, which 
 if continued would cause great loss, a receiver 
 appointed in an action to dissolve the partnership 
 may be authorized to complete the job. lb. 
 
 19. Receiving notes. A receiver, autho- 
 rized by the order appointing him to sue for and 
 collect such debts as are or may become due, 
 and pay over the proceeds to the plaintiff, may 
 receive money payable under a contract before 
 it becomes due, and he may take notes in place 
 of money if the plaintiff accepts them. Sup. 
 Ct., 1875, Olcott v. Heermans, 3 Hun, 431. 
 
 20. Property vested in. A person who 
 has assigned all his property for the benefit of 
 his creditors, has no title or legal interest in the 
 property assigned, except thfe possible reversion 
 of a surplus after the payment of all his debts 
 and the complete execution of the trust, even 
 though the assignee dies, leaving the trust in 
 part unexecuted ; and a receiver of all the prop- 
 erty and assets of the assignor not collected 
 and distributed under the assignment, appointed 
 in a suit against the assignor alone, after death 
 of such assignee, takes no greater interest. Sup. 
 Ct., 1875, Merritt v. Scott, 3 Hun, 657. 
 
 21. A receiver of the property of a judgment 
 delitor is not entitled to receive from public 
 authorities the amount of a pension granted to 
 the judgment debtor. The latter has no prop- 
 erty therein until it is actually paid over to him, 
 and until then it cannot be seized by the receiver. 
 N. Y. C. P., Sp. T., 1874, Nagle v. Stagg, 15 Abb. 
 N. S. 348. 
 
 22. Vacating receivership. "Where a busi- 
 ness carried on under a trust deed, which pro- 
 vides for its termination on notice by parties 
 representing seventy-five per cent of the divisi- 
 ble interests, and the winding up and settlement 
 of the trust business by the trustees, was so 
 terminated, and one of the trustees thereupon 
 procured an ex parte order from a judge of the 
 Supreme Court, late at night, appointing a 
 receiver of all the property appertaining to the 
 business, and authorizing him to dispose of the 
 
RECOGNIZANCE— RECOUPMENT. 
 
 649 
 
 same at public or private sale, subject to the 
 orders of the court; etc., and such receiver on 
 the next morning, before any of the defendants 
 liad been served with summons in the action, 
 sold all the property at private sale, for an in- 
 dequate price, to the brother of the plaintiff, — 
 Held, that the order appointing such receiver, 
 and a subsequent order substituting another 
 person as receiver, should be set aside, as being 
 unwarranted by the case made by the complaint, 
 as being unnecessary and improper in view of 
 the power given to the trustees by the trust deed, 
 and as being in fraud of the rights of the defend- 
 ants ; and that the sale should be set aside for 
 tlie same reason. Sup. Ct. Sp. T., 1873, Sim- 
 mons v. Wood, 45 How. 262. 
 
 23. The receiver in such a case could not 
 transfer the interests sold until his report had 
 been made and confirmed on notice to the parties 
 who had appeared. lb. 
 
 24. It is no objection to granting such relief, 
 that the property consists principally of lottery 
 grants, since the plaintiff was no more entitled 
 to relief than the defendant-; and in this case 
 the other property was entitled to protection. lb. 
 
 26. Although lotteries are prohibited here, and 
 lottery business could not lawfully be carried on 
 here under grants and franchises conferred by 
 other States, yet such grants and francliises 
 being property in those States, will on the prin- 
 ciple of comity, be protected when they become 
 the subjects of litigation here. lb. 
 
 26. liability of receiver. A stranger who 
 obtrudes into and procures himself to be appoints 
 ed receiver in an action, contrary to the wishes 
 of the parties to the litigation, is bound to make 
 restitution of the funds received by him as such 
 witliout any deduction whatever. It is no de- 
 fense tliat he deposited the same in a savings 
 bank which has since become insolvent. N. Y. 
 Supr. Ct., 1874, O'Mdkmy v. Belmont, 37 N. Y. 
 Supr. (5 J. & Sp.) 380. Aff'g S. C, id. 223. 
 
 27. A receiver who, in an assignment of claims 
 sold by him, running in his name as receiver 
 and signed by him officially, covenants that 
 such claims are due and unpaid, must be held to 
 have done so in his official and not in his personal 
 capacity, and cannot be held liable thereon per- 
 sonally, even if he did not bind the estate re- 
 presented by him. Sup. Ct., 1872, Livingston v. 
 Pettigrew, 7 Laus. 405. 
 
 28. Wlietlier a receiver may not, in his official 
 capacity, covenant that claims so sold are due 
 and unpaid, for the purpose of obtaining a bet- 
 ter price for the benefit of the estate, query ? lb. 
 
 29. A receiver is personally liable to persons 
 sustaining loss or injury by or through his own 
 neglect or misconduct ; but for the neglect or 
 misconduct of those employed by him in the per- 
 formance of the duties of his trust, he is liable 
 only in his official capacity, and tlie judgment 
 against him, if any, must be made payable out 
 of tlie fund in his hands as receiver. Sup. Ct., 
 1875, Camp v. Barney, 4 Hun, 373. 
 
 30. If a suit is brought against a receiver 
 engaged in operating a railroad, for injuries 
 sustained through the negligence of his employ- 
 ees, and judgment recovered against him in his 
 personal capacity, the record and proceedings 
 should be modified on appeal so as to make the 
 judgment against him as receiver only. lb. 
 
 31. If the receiver, sued personally, desires the 
 protection of the court by which he was appoint- 
 ed, heshouldapply thereto for an injunction, and 
 if he fails to do so, the action at law may pro- 
 ceed as though permission had been obtained 
 from the court. Pe/ Smith, J. lb. 
 
 82. Where a receiver has sold property claim- 
 ed by a third- party, after notice of the claim, 
 and after service on him of a petition and notice 
 of motion for leave to prosecute for such prop- 
 erty, it is no answer to such motion, that he 
 has been discharged by the Special Term, where 
 it appears that such claimants had no notice 
 of the motion to discharge him, although he was 
 aware of tlieir claim. Sup. Ct., 1873, MUkr v. 
 Loeb, 64 Barb. 454. 
 
 83.^ Compensation, &o. A receiver who 
 has fieen appointed in an orderly way by a court 
 having jurisdiction, and who has in good faith 
 entered upon his duties as such, should be 
 shielded in his proper action under tlie order 
 while it is in force, and be indemnified out of the 
 fund entrusted to his guardianship for legal 
 charges and disbursements reasonably made and 
 incurred, although the order should be afterward 
 reversed for error. N. Y. Supr. Ct., 1874, O'Ma- 
 hony V. Belmont, 37 if. Y. Supr. (6 J. & Sp.) 223. 
 
 34. But where a person intrudes into the office, 
 or obtains it by his own seeking, in violation of 
 the rights of the defendants and of the rules and 
 practice of the court, in a case not proper for the 
 appointment of a receiver, and the order ap- 
 pointing him is made upon motion of a stranger 
 to the suit, who is in fact the attorney for the 
 receiver, in violation of the stipulation of the 
 parties and their counsel, and against their 
 wishes, and before the case is ready for submis- 
 sion, no such charges or expenses should be al- 
 lowed to him out of the fund, but he should be 
 held responsible for any loss or diminution of the 
 fund while in his hands. lb. 
 
 36. Without some proof of the amount of duty 
 performed by a receiver, showing him entitled 
 to a greater allowance, he should be allowed 
 fees only at the rate fixed for executors, together 
 with his expenses. Sup. Ct., 1872, Mutter t. 
 Pondir, 6 Lans., 472. 
 
 RECOGNIZANCE. 
 
 1. Mistake in date. Where a recognizance 
 entered into in December, 1873, was conditioned 
 for the appearance of the defendant " at the 
 next court of General Sessions of the Peace to 
 be held — on the first Monday of January, 1873," 
 — Held, that the insertion by mistake of 1873 
 instead of 1874, could not mislead anybody, and 
 especially not the surety, and that he was liable 
 thereon. N. Y. C. P., Sp. T., 1874, People v. 
 Welch, 47 How. 420. 
 
 RECORD. 
 See Deeds ; Evideitcb. 
 
 RECOUPMENT. 
 
 1. When alloTvable. An innkeeper, in an 
 action against him for goods stolen from a guest, 
 may recoup a claim for board due from such 
 guest against any damages the latter may re- 
 cover from him. N. Y. Supr. Ct., 1870. Classen 
 V. Leopold, 2 Sweeny, 706. 
 
 2. Although an engine, purchased subject to 
 the approval of an engineer, a flue of which col- 
 lapsed on its first trial after delivery but before 
 approval and acceptance, is afterward repaired, 
 
650 
 
 REDEMPTION— RELEASE. 
 
 approved, and accepted, tlie purcliaser ia not 
 tl)ereby estopped, in an action for tlie purchase 
 price, from recouping such damages as resulted 
 from the original defects. Ct. App., 1871, Cas- 
 sidy V. LeFevre, 45 N. Y. (6 Hand,) 562 ; Rev'g 
 on this point, S. C, 57 Barb., 313. 
 
 3. Tlie measure of damages in such case would 
 be, not tlie decrease in the earnings of the manu- 
 factory during the delay, but the difference in 
 its rental value with and without the use of the 
 engine during such time. lb. 
 
 4. Wlien principal and surety are sued together 
 upon a promissory note, a successful recoupment 
 by tlie former will inure to the benefit of the 
 latter as well, although the surety could not, if 
 sued alone, avail himself of the defense. Ct. 
 App., 1872, Springer v. Dwyer, 50 N. Y. (6 Sick.) 
 19. 
 
 REDEMPTION. 
 
 1. Action to redeem. An assignee in bank- 
 ruptcy, who was not made a party to an action 
 for the foreclosure of a mortgage given by the 
 debtor, may maintain an action against the pur- 
 chaser or his grantee to redeem from the sale. 
 Ct. App., 1872, Winshw v. Clark, 47 N. Y (2 
 Sick.) 261. 
 
 2. From execution sale. When a sale* on 
 execution is made by a deputy of the sheriff, 
 either the sheriff or the deputy is "the officer 
 who made the sale," within the purview of the 
 statute directing to whom the money on redemp- 
 tion shall be paid ; and payment may be made 
 to either. Ct. App., 1874, Livingston v. Arnoux, 
 56 N. Y. (11 Sick.) 507. 
 
 3. From trani^er aa security. Where one 
 holding a contract for the purchase of lands as- 
 signed it to another as security for moneys adv- 
 anced by him to make the payments, and the 
 latter, having paid up in full and taken a deed in 
 his own name with the consent of the former, 
 liad, with his consent, also contracted to sell a 
 portion of the lands to a third party, — Held, that 
 the former could redeem, without paying money 
 advanced subsequently to such third party to aid 
 him in cutting logs on the lot sold, under a con- 
 tract made without his consent that such logs 
 should be taken at a certain price to repay the 
 advances ; and that he would be entitled to an 
 assignment of the contract of sale with such 
 third party, with all the assignor's interest in the 
 logs already cut on the lands as vendor, dis- 
 charged of his lien for the advances. Ct App., 
 1871, Kelly v. Falconer, 46 N. Y. (6 Hand,) 42. 
 
 REFERENCE ; REFEREE. 
 See Peactice. 
 
 REFORMING INSTRUMENTS. 
 
 1. Deed. A mutual mistake of the parties 
 to a deed in supposing that the description given 
 therein corresponds with the actual boundaries 
 of the land intended to lie conveyed, is sufficient 
 ground for reforming the deed in equity. It is 
 not necessary that the mistake should consist of 
 tlie omission or insertion of words or clauses 
 contrary to the intention of the parties. Ct. 
 App, 1875, Bush V. Hicks, 60 N. Y. (15 Sick.) 298. 
 
 2. Insurance policy. A statement in an 
 insurance policy as to the place where the insur- 
 ed goods are located will not be reformed on the 
 ground of mistake, unless a mutual mistake is 
 shown, whereby tlie intentions of the parties 
 failed of expression, or a mistake of one party 
 fraudulently taken advantage of by the other. 
 Ct. App., 1873, Bryce v. Lorilldrd Fire Ins. Co., 
 46 How. 498 ; 56 N. Y. .(10 Sick.) 240; Aff'g S. 
 C, 35 N. Y. Supr. (3 J. & Sp.) 894. 
 
 3. A mere contradiction in the evidence is not 
 conclusive that the mistake was not mutual, but 
 that question is to be decided upon the weight 
 of evidence. lb. 
 
 REHEARING. 
 See Apfbals ; Pba.ciiob. 
 
 RELEASE. 
 
 1. By assignor. An assignor of a judgment 
 against a manufacturing corporation, cannot,' 
 after the assignment, release a trustee from his 
 personal liability upon the debt, incurred by a 
 failure to make and file the annual report re- 
 quired by statute. Ct. App., 1872, Bolen v 
 Crosby, 49 N. Y. (4 Sick.) 188. 
 
 2. By guardian. A release executed by a 
 guardian under seal, expressing a valuable con- 
 sideration, of a claim for a trespass upon the 
 land of the ward, is prima facie valid and ef- 
 fectual, and if the ward seeks to impeach it 
 after coming of age, the burden of proof is upon 
 him to show that it was not made in good faith 
 but in fraud of his rights. Ct. App., 1874, Torru 
 V. Black, 58 N. Y. (13 Sick.) 185; Rev'g S. C, 
 65 Barb. 414. 
 
 3. Psurol. A debt may be released by the 
 surrender to the debtor of the evidence of the 
 debt, or its destruction by the creditor with in- 
 tent to release, but a mere parol release, with- 
 out consideration, even where there is no written 
 evidence of the debt, is void. Sup. Ct., 1871, 
 Doty V. Wilson, 5 Lans. 7. 
 
 4. Of joint debtor. Persons against whom 
 jointly a judgment has been entered for dam- 
 ages for injuries caused by negligence, are joint 
 debtors within the meaning of the act of 1838, 
 authorizing creditors to discharge one or more 
 of several joint debtors, and a release of one of 
 them, not under seal, does not extinguish the 
 judgment so as to discharge the others. N. Y. 
 Supr. Ct., 1878, Irvine v. MUhank, 14 Abb. N. S. 
 408; S. C, 36 N. Y. Supr. (4 J. & Sp.) 264; 
 Aff'd, 15 Abb. N. S. 378; 66 N. Y. (11 Sick.) 
 635. 
 
 6. An unsealed receipt, which recites the re- 
 covery of the judgment, and the desire of one 
 of the judgment debtors to compromise and ob- 
 tain a personal discharge without prejudice to 
 the plaintiff's right to proceed against the oth- 
 ers, and acknowledges the receipt of a sum less 
 than the judgment, and declares the debtor ex- 
 onerated from all liability to the full extent 
 authorized by the act of 1888, but without preju- 
 dice to the creditor's rights as against the others, 
 is not a technical release, nor an accord and sat- 
 isfaction, and cannot exonerate the other de- 
 fendants from liability, or their sureties in their 
 undertaking on appeal. lb. 
 
 6. A release given to one of several tort fea- 
 sors does not operate to discharge the others, 
 
RELEVANCY— RELIGIOUS CORPORATIONS. 
 
 651 
 
 unless under seal ; nor is an acknowledged debt 
 extinguished by the payment of a less sum, un- 
 less a release by deed be given. lb. 
 
 7. If such instrument is not effectual under 
 the statute relating to release of joint debtors, 
 it is of no more effect than a receipt in full to the 
 party to whom it is given for all demands 
 against him, or an agreement with him not to 
 enforce further against him his liability by rea- 
 son of the judgment. lb. 
 
 8. Of joint 'wrongdoer. Tlie voluntary re- 
 lease of one of two joint tort feasors is a dis- 
 charge of both ; but a satisfaction obtained 
 from the attorney of the party injui:ed, without 
 her assent will not so operate. Ct. App., 1871, 
 Barrett v. Third Ave. R. R Co., 45 N. Y. (6 
 Hand,) 628. 
 
 9. Cancellation for fraud. In an action 
 upon a judgment recovered by a former firm of 
 which the plaintiff was a member, the plaintiff 
 cannot, on discovering that a member of the de- 
 fendant firm had been released by liis own former 
 partner, and the judgment marked in the county 
 
 'clerk's office as released as to such defendant, 
 have such entry cancelled upon his motion ; but 
 he may be allowed to amend his complaint so 
 as to set up that the release was given fraudu- 
 lently and witliout authority and by collusion, 
 and to ask tliat it may be declared null and 
 void. Sup. Ct., 1874, Romain v. Garth, 3 Hun, 
 214. 
 
 RELEVANCY. 
 See Evidence. 
 
 RELIGIOUS CORPORATIONS. 
 
 General laws for incorporation of, amended ; chap. 
 
 12, Laws of 1871. 
 Act relative to dissolution of; chap. 424, Laws of 
 
 1872. 
 
 1. Corporate capacity. A church is not 
 recognized by our laws as an organized body. 
 In order to give an organization for public wor- 
 ship legal rights, and to impose upon it legal 
 obligations as a corporate body, there must be 
 either a special law declaring its existence, or 
 an incorporation under the general law relating 
 to religious societies. Sup. Ct., 1872, Van Bu- 
 ren v. Reformed Church of Gansevoort, 62 Barb. 
 495. 
 
 2. Not ecclesiastical. A corporation formed 
 under sec. 2, ch. 60, Laws of 1813 (3 Edm. Stats 
 688), is a civil and not an ecclesiastical corpo- 
 ration within the meaning of the English law ; 
 and tlie fact that a majority of the congrega- 
 tion have severed themselves from their old 
 ecclesiastical connection, does not give the 
 property to the minority, but the majority of 
 tlie corporators have the riglit to control, and 
 they are free from any ecclesiSstical restrictions. 
 Sup. Ct., 1875, Watkins v. Wilcox, 4 Hun, 220. 
 
 3. It is tlie connection with the particular 
 society, not with the denomination at large, that 
 gives the right to vote. lb. 
 
 4. Action by. Where a subscription paper 
 for raising a building fund for Sunday school 
 purposes, was originated at a meeting of Sun- 
 day school teachers, but was headed as a sub- 
 scription to the " Sunday School Building Fund 
 of the Church of the Redeemer," and signed | 
 
 by the rector, finance committee and treasurer of 
 the church, and the subscribers were therein in- 
 formed tliat they would receive a receipt for all 
 donations from such finance committee, — Held 
 that moneys paid thereon to a person then acting 
 as treasurer of the church, but which he on retire- 
 ment refused to account for, might be recovered 
 by such church in its corporate name ; and this 
 although the original contributors had, some 
 of them, directed that their subscriptions should 
 not be paid over, and the Sunday scliool had an 
 organization independent of the church. Ct. 
 App., 1871, Rector, etc. of Church of the Redeemer 
 V. Crawford, 43 N. Y., (4 Hand,) 476 ; Rev'g S. 
 C, 5 Rob. 100. 
 
 5. Fo'wer of trustees. The statute gives the 
 trustees of every church, congregation or socie- 
 ty, power to take into their possession and cus- 
 tody all the temporalities belonging thereto, 
 whether consisting of real or personal estate, to 
 hold and enjoy all churches, meeting-houses, 
 &c., and to repair and alter the same, &c., and 
 they may therefore make alterations and repairs 
 in their churches without any action on the 
 part of the society. N. Y. C. P., Sp. T., 1875, 
 Solomon V. Congregation B^iiai Jeshurun, 49 How, 
 263. 
 
 6. In order to bind a religious corporation by 
 their contract, the trustees must meet as a 
 board and act as such. The separate action of 
 individual trustees, although a majority concur, 
 is not sufficient. N. Y. C. P., 1872. Constant v. 
 Rector, etc. of St. Alban's Church. 4 Daly, 305. 
 
 7. Knowledge on the part of an individual 
 trustee of the claim of another upon the pro- 
 ceeds of a cimrch fair in his hands, will not 
 charge the trustees with notice, in their official 
 capacity, of such claim ; nor will the church be 
 liable thereon, after having received and ex- 
 pended such proceeds in ignorance thereof. lb. 
 
 8. Vacancy. The mere refusal of an officer 
 or trustee to perform the duties of his office un- 
 der a particular pastor, although it may be 
 ground for his removal, yet does not, of itself, 
 create a vacancy, especially where it is clear 
 that he did not intend to resign. Sup. Ct., 1871, 
 Connitt y.Ii£formed Prot. Dutch Church of New 
 Prospect, 4 Lans. 339; Aff'd, S. C, 54 N. Y. (9 
 Sick.) 551. 
 
 9. Re-incorporation. The formal dissolu- 
 tion of a religious society is not a condition 
 precedent to the right to re-incorporate, under 
 sec. 16, ch. 60, R. L. of 1813 (3 Edm. Stats. 695), 
 but a neglect to exercise any of the corporate 
 powers necessary for its preservation, sucli as 
 that of electing trustees, is a sufficient dissolu- 
 tion to autliorize a re-incorporation. Sup. Ct., 
 1875, First So. M. E. Church in Irving v. Brown- 
 ell, 5 Hun, 464. 
 
 10. The identity of such corporation is not 
 necessarily affected by a change of its name on 
 such re-incorporation. The question of identity 
 is one of intention. lb. 
 
 11. Pastorate. Tlie relationship of pastor 
 and people in "The Reformed Cliurch in Amer- 
 ica," is purely ecclesiastical, and cognizable 
 only by tlie ecclesiastical tribunals or judicato- 
 ries established in that church. Sup. Ct., 1871, 
 Connitt v. Reformed Prot. Dutch Church of New 
 Prospect, 4 Lans. 339 ; Aff'd, S. C, 54 N. Y. (9 
 Sick.) 561. 
 
 12. Tlie continuance of that relation, under 
 the constitution of that church, is subject to ec- 
 clesiastical rule, and it may be dissolved by the 
 classis within whose bounds such church is. lb. 
 
 13. The power to dissolve such relation is not 
 limited to cases where the pastor has been tried 
 
652 
 
 RELIGIOUS CORPORATIONS. 
 
 and found guilty of some offense affecting his 
 religious or moral character. lb. 
 
 14. Tlie contract between a church of that 
 denomination and its pastor, for the services of 
 the latter at a stipulated salary, formed by his 
 acceptance of a call in the regular form, is sub- 
 ordinate to the rules of church government 
 estal>lished by such denomination, and subject 
 to tlie ecclesiastical rule of the church ; and a 
 decree of an authorized church tribunal, dissolv- 
 ing tlie pastoral relation, annuls the contract 
 for services. lb. 
 
 16. Rights of members. The interest of 
 members of a religious corporation in the corpo- 
 rate property continues only so long as they re- 
 main members. When a corporator removes 
 and settles permanently without the precincts of 
 the corporation, liis frarichise ipso facto ceases. 
 N. Y. Supr. Ct., Sp. T., 1871, Groesheeck v Duns- 
 comb, 41 How. 302. 
 
 16. Trinity Church. In order to be entitled 
 to vote for officers as a member of tlie corpora- 
 tion of Trinity Church in New York City, under 
 tlie laws relating to tliat corporation, a person 
 must be an inliabitant of the city, profess him- 
 self a member of the Episcopal Clmrch, and 
 hold a pew or seat in said cliurcli, or have par- 
 taken of tlie communion in said churcli at least 
 once a year. lb. 
 
 17. By tills latter clause is meant regular com- 
 municants ; and according to tlie discipline of 
 the English Church, no person can at the same 
 time be a regular communicant In separate par- 
 ishes under the care of different and independ- 
 ent rectors. No one can be so considered unless 
 he receives the sacrament in the parish church, 
 by and with the consent of the priest ; and the 
 mere fact that a person, not a member of an 
 Episcopal Churcli, has partaken of the sacrament 
 in a chapel of Trinity Church without such con- 
 sent, does not make him a corporator of that 
 church. lb. 
 
 18. Expulsion. A church composed of persons 
 associated for ecclesiastical purposes, has power 
 to adopt and enforce its own rules for admission 
 and discipline, and when a member is convicted 
 o£ a moral delinquency and expelled, in accord- 
 ance with its rules, the courts have no control of 
 the matter ; but a religious corporation organ- 
 ized under the statute (cli. 60, Laws 1813), has 
 no power to try a corporator for a moral delin- 
 quency, or to disfranchise him in consequence 
 thereof. Ct. App., 1873, People ex rel. Ditcher v. 
 Ger. U.Ev. St. Stephen's Church of Buffalo, 53 N. 
 Y. (8 Sick.) 103 ; Rev'g S. C, 6 Lans. 172. 
 
 19. Although such an expulsion would be un- 
 authorized, yet a mandamus will not lie to re- 
 store the member, since he has an adequate 
 remedy by law by action against the persons 
 depriving him of his rights. lb. 
 
 20. Right of pew oiisrner. The owner or 
 holder of a church pew has no legal interest in 
 the church edifice, or the land upon which it 
 stands. All that he has, or can acquire, is the 
 right to occupy the pew during divine worship, 
 an interest qualified at best and determinable 
 upon sale or destruction of the church, or the 
 destruction of the pew itself by necessary alter- 
 ations. N. Y. C. P., 1869, Abernathy v. Society of 
 Church of the Puritans, 3 Daly, 1. 
 
 21. Sale of property. Religious corporations 
 have the same powers as other corporations, in 
 respect to alienating lands, except that they 
 must obtain the consent of the court before con- 
 veying. Brooklyn Ci.ty Court, Sp. T., 1871, 
 Congregation Beth. Elohim v. Central Presb. 
 Church, lOAbb. N. S. 484. 
 
 22. It is not material that such consent be ob- 
 tained before making an executory contract of 
 sale ; neither need a contract made without con- 
 sent first obtained expressly provide that it shall 
 be obtained, since that condition may be im- 
 plied, lb. 
 
 28. A purchaser of land from a religious cor- 
 poration cannot refuse to complete the purchase, 
 upon the ground tliat the trustees have agreed 
 to an extension of time for the delivery of the 
 deed, because they have incidental power to so 
 agree; nor can they so refuse for objections 
 which might have been obviated if specified at 
 the time of the tender of the deed, such as that 
 the order of court allowing the sale had not 
 been filed. lb. 
 
 24. Upon default of the purchaser, the seller 
 cannot recover the contract price, except in an 
 action for specific performance. lb. 
 
 25. It is not necessary to a valid sale and con- 
 veyance of real property under the act for the 
 incorporation of reUgious societies (8 Edm. 
 Stats. 687), that a majority of the corporators 
 should authorize the trustees to initiate proceed- 
 ings ; but the trustees are the proper persons to 
 act, and a petition by a majority of the trustees 
 is sufficient to confer jurisdiction upon the court 
 Ct. App., 1871, Madison Ave. Bapt. Church v. 
 Baptist Church in Oliver St., 11 Abb. N. S. 132 : 
 S. C, 46 N. Y. (1 Sick.) 131; Bev'g S. C, 1 
 Sweeny, 109. 
 
 26. An order granted by a court which has 
 acquired jurisdiction of the subject matter by 
 the presentation of a petition of the trustees is 
 conclusive upon the corporation represented by 
 them, and, in the absence of fraud or collusion, 
 the title of the purchaser is perfect and cannot 
 be overthrown, in a suit for that purpose, by 
 proof that some of the statements in the petition 
 were untrue. lb. 
 
 27. In order to confer jurisdiction to order a 
 sale, it must appear that the consideration will 
 enure to the corporation making it, as such, and 
 not to the Individual corporators. lb. 
 
 28. An arrangement made between two relig- 
 ious societies for uniting, on the terms that the 
 one was to convey all its property to the other, 
 and the two societies were to merge and meet for 
 worship in the church of the former, tlie trus- 
 tees of the latter were to resign, it was to take 
 the corporate name of the former, there was to 
 be a new election of trustees by the united soci- 
 ties, and the property of both was to become 
 liable for the debts of both, although agreed to 
 by both, and the latter society owned property 
 above its indebtedness, which would become 
 liable for the debts of the former, and each had 
 obtained subscriptions to be applied to its float- 
 ing indebtedness, held not a sale within the 
 meaning of the statute, because no consideration 
 passed to the corporation transferring its prop- 
 erty ; and a transfer by order of court under 
 such arrangement was invalid. lb. 
 
 29. Title to property. Where land was 
 granted to the H. D. B. Church, a religious cor- 
 poration, the grantor reserving to himself the 
 right to grant to • certain company the right 
 " to build a basement story, on the premises, for 
 the purpose of keeping a select and other schools 
 in only," which right he afterward granted to 
 trustees, and they erected such basement story, 
 and the church corporation erected a church 
 over it, both portions being occupied for those 
 several purposes, — Held, that a resolution, pass- 
 ed eight or nine years afterward, by the consis- 
 tory of such church corporation, authorizing a 
 portion of its members who had organized under 
 
REMOVAL OF CAUSES TO UNITED STATES COURTS. 653 
 
 the name of " The R. Church " to separate 
 from the corporation and become a distinct 
 church and congregation, and tliat said church 
 buildiiig " should thereafter belong to, and be 
 the exclusive property of that part of the con- 
 gregation," followed by possession and use 
 thereof for more than twenty years by " The 
 R. Church," which in the meantime became in- 
 corporated, did not give it a title to the church 
 building. Sup. Ct, 1871, Reformed Church of 
 GallupviUe v. Schoolcraft, 5 Lans. 208. 
 
 30. The resolution of the consistory could not 
 operate as a conveyance, and no title could be 
 conveyed without leave of court. lb. 
 
 81. Such proceedings could not operate as a 
 parol partition of the premises between the H. 
 D. R. Church and the R. Church, inasmuch as 
 they never were owners as tenants in common, 
 lb. 
 
 S2. The R. Church had no such possession of 
 the basement as would enable it to maintain 
 ejectment against mere intruders, although its 
 use for schools had been for some time discon- 
 tinued ; especially when it appeared that the 
 consistory had within twenty years recognized 
 a separate ownership of the basement by the 
 trustees who erected it. lb. 
 
 33. A religious corporation, which, by means 
 of subscriptions among its members principally, 
 purchases premises in a new location, erects 
 buildings thereon, and establishes there a mis- 
 sion school and chapel, continuing to use them 
 for that purpose for several years, does not sur- 
 render its control of such premises by merely 
 consenting to the organization of the persons 
 statedly worshipping in such chapel into a sepa- 
 rate church corporation, nor does the new cor- 
 poration thereby become vested with any rights 
 in the premises to the exclusion of the original 
 cliurch. Sup. Ct. Sp. T., 1873, Alexander Presb. 
 Church V. Presb. Church, cor. Fifth Ave. and Nine- 
 teenth St.^m How. 312. 
 
 34. Neither can the original church, in such a 
 case, be declared a trustee of such premises for 
 tlie benefit of the new corporation ; but, on the 
 contrary, it retains all its rights and ownership, 
 and may at its pleasure close up such school and 
 chapel. If a trustee at all, it is liable to account 
 only to the subscribers to the fund, lb. 
 
 REMAINDER AND REVERSION. 
 See Deeds ; Wills. 
 
 REMOVAL OF CAUSES TO UNITED 
 STATES COURTS. 
 
 1. Constdtntlonality. The constitution of 
 the U. S. confers no power upon the Federal 
 government to divest a state court of its juris- 
 diction of cases in which the defendants, al- 
 though citizens of other States, have voluntarily 
 submitted themselves and the subject matters 
 in controversy to the jurisdiction of such court. 
 N. Y. Supr. Ct., Sp. T., Stephens v. Borne, 43 
 How. 134. 
 
 2. The acts of Congress of 1866 and 1867, 
 providing for the removal of such causes from 
 the state to the federal courts, upon applica- 
 tions made " at any time before the final hear- 
 ing or trial," are therefore invalid. lb. 
 
 3. Wlien authorized. An action com- 
 menced by an assignee, in a State court, may 
 
 be removed to the V. S. Court, on proper ap- 
 plication under the 12th sec. of the judiciary 
 act (chapter 20, U. S. Laws of 1789) ; such a 
 cause not being within the restriction of the 11th 
 sec. of the same act. Ct. App., 1871, Ayres v. 
 Western B. R. Corporation, 45 N. Y. {6 Hand,) 
 260. 
 
 4. Where, by virtue of a state law, a cause 
 of action against a non-resident is joined with 
 another against residents of this State, a re- 
 moval to the United States Court may be had 
 on application of the non-resident alone ; but 
 it seems that in such case, the action would be- 
 come severed and only the one against the ap- 
 plicant would be removed, the other remaining 
 in the state court. Ct. App., 1873, Coolce v. 
 State National Bank, 52 N. Y. (7 Sick.) 96. 
 
 5. A removal is not authorized except upon 
 afiidavit of the party himself; and therefore 
 none can be had in the case of a corporation de- 
 fendant, because of its inability to make such 
 affidavit. lb. 
 
 6. The removal of one of several defendants 
 from this to another State, after the commence- 
 ment of a suit against him in a court of this 
 State, will authorize the removal of sucli suit to 
 a U. S. court on his petition. N. Y. C. P., 1871, 
 Dart V. Walker, 43 How. 29 ; S. C, 4 Daly, 188. 
 
 7. Under the act of Congress of July, 1866, a 
 cause may, on petition of one of several defend- 
 ants, who was a citizen of another State at the 
 commencement of tlie action, be removed from 
 a state into a U. S. court, wliere he makes it 
 appear that the suit is one in which " there can 
 be a final determination of the controversy, so 
 far as the petitioning defendant is concerned, 
 without the presence of the other defendants as 
 parties in the cause ; " and even though several 
 defendants join in the petition, and base their 
 application upon the act of March, 1867, the re- 
 moval may be granted under the act of 1866 as 
 to one who is shown to be entitled thereto, and 
 denied as to the other who is not. lb. 
 
 8. The fact that one trial has been had in the 
 cause is not a bar to the application, it the judg- 
 ment has been reversed and a new trial ordered, 
 lb. 
 
 9. To authorize the removal of a cause from 
 a state to a federal court, it must appear from 
 the petition, not only that the defendant is a 
 citizen of another State, and the plaintiff a citi- 
 zen of the State where the action is brought, 
 but further, that the plaintiff was such citizen 
 at the time of the commencement of the action. 
 Ct. App., 1871, Hulden v. Putnam Fire Insurance 
 Co., 46N. Y. (iSick.) 1. 
 
 10. The rights of the parties are governed by 
 the facts existing at the commencement of the 
 suit, and a subsequent change of residence or 
 citizenship does not confer or defeat a right of 
 removal. lb. 
 
 11. The provisions of the act of Congress of 
 March 8, 1863, and the amendatory act of May 
 11, 1866, for the removal into United States 
 courts of actions founded upon facts which oc- 
 curred during the rebellion, do not apply to an 
 action, commenced in a state court, against a 
 U. S. military officer for trespass and false im- 
 prisonment, in causing the plaintiff to be ar- 
 rested on the 14th of June, 1865, and subse- 
 quently imprisoned in Fortress Monroe ; the re- 
 bellion being at an end at tlie time of such ar- 
 rest. N. Y. Supr. Ct., Sp. T., 1871, Mitchell v. 
 Dix, 42 How. 475. 
 
 12. Agreement not to remove. An agree- 
 ment by a fire insurance company not to re- 
 move any suit commenced against it in a state 
 
654 REMOVAL OF CAUSES TO UNITED STATES COURTS. 
 
 court to the federal court, entered into in pur- 
 suance of a law of tlie State of Wisconsin re- 
 quiring it as a condition to its being permitted 
 to transact business in that State, is not binding 
 upon the company, and does not deprive it of 
 the right to sucli a removal. U. S. Sup. Ct., 
 1875, Home Ins. Co. ofN. Y. v. Morse, 49 How. 
 314. 
 
 13. App^^ance. The mere service of a no- 
 tice of retamer is not entering an appearance, 
 within the meaning of the act of 1789, requiring 
 the petition for removal to be filed at the time 
 of entering an appearance ; but the recitals in 
 the petition and in the order to show cause, that 
 the defendant then entered its appearance, suffi- 
 ciently show such entry at that time, and; if 
 they do not, the procuring the order and mak- 
 ing the motion is equivalent to the entry of an 
 appearance. Bkadt, J., dissents. Sup. Ct, 
 1874, Chatham Nat. Bank of N. Y. v. Merchants 
 Nat. Bank of W. Va., 1 Hun, 702. 
 
 14. Citizenship of parties. The right to 
 remove a case from a state to a United States 
 court is given by the acts of Congress on that 
 subject only when one of the parties is a citizen 
 of the State where the action is brought, and 
 the other a citizen of another State ; and the 
 fact that they are citizens of such different 
 States must affirmatively appear by the peti- 
 tion. N. Y. Snpr. Ct., 1873, Amory v. Amory, 36 
 N. Y. Supr. (4 J. & Sp.) 620. 
 
 15. A petition which does not state that the 
 plaintiffs, eitlier then or at the commencement 
 of the action, were residents or citizens of tlie 
 State of New York, without limitation or qual- 
 ification, but merely alleges that the suit was 
 instituted by them as executors, under letters 
 testamentary issued to them here, and as such 
 executors were citizens of this State, is not suf- 
 ficient to oust the jurisdiction of the state 
 court. lb. 
 
 16. For the purposes of a removal of a suit 
 from a state to a United States court, a bank- 
 ing association, organized under the national 
 currency act of Congress, is to be deemed a citi- 
 zen of the State in which it is located. Ct. App., 
 1873, Cooke v. State National Bank of Boston, 52 
 N. Y. (7 Sick.) 96. S. P. Chatham Nat. Bank 
 of N. Y. v. Merchants Nat. Bank of W. Va., 1 
 Hun, 702. 
 
 17. On whose application may be al- 
 lowed. An application by a corporation for 
 the removal of a suit against it from a state 
 court to the V. S. Circuit or District Court, un- 
 der the act of Congress of July 27, 1868, is ex 
 parte, and depends on the papers upon whicli it 
 is founded ; and if they are regular and suffi- 
 cient, the State court has no discretion. No af- 
 fidavits can be read there in opposition. U. S. 
 Cir. Ct., 18V1, Fisk v. Union Pac. R B. Co., 10 
 Abb. N. S. 457. 
 
 18. Where the verified petition states a de- 
 fense, arising under the U. S. Constitution, etc., 
 even though the complaint may not show the 
 action to be one coming within the provisions of 
 that act, the truth of defendant's averment that 
 they have such a defense must be settled at the 
 trial, and cannot be tried on affidavits. lb. 
 
 19. In such an action against several defend- 
 ants, all need not join in the petition for re- 
 moval, but each one separately, or as many as 
 see fit, may present a petition and otherwise 
 comply with the requirements of the act, with 
 regard to the others. lb. 
 
 20. After one or more of the defendants have 
 thus initiated the removal, the State court can 
 take no proceedings in the cause, other than to 
 
 perfect the removal, as other party defendants 
 may appear and present their petitions. lb. 
 
 21. The joinder, as defendants in tlie suit, of 
 persons not within the limitation prescribed by 
 the act, with those who are, cannot be permit- 
 ted to withdraw the cause from the jurisdiction 
 of the federal courts. lb. 
 
 22. The cases upon the subject of removal 
 collected and arranged, in notes. lb. 
 
 28. The removal of an action for a joint in- 
 debtedness to a court of the United States is 
 not authorized by the act of 1866, when the ap- 
 plication is not made by all the defendants to 
 the record, nor by any one against whom a sep- 
 arate judgment can be rendered without the 
 presence of the other defendants. N. Y. C. F., 
 Sp. T., 1874, Merwin v. Wexel, 49 How. 115. 
 
 24. Nor is it authorized under the amend- 
 ment of 1867, on the ground of local influence, 
 because such an application must be made by 
 all the defendants. lb. 
 
 25. Nor is it authorized, where the plaintiff 
 was resident of another State, at the commence- 
 ment of the action, and the defendant applying 
 was a resident of the same State. lb. 
 
 26. An allegation in the petition of one of 
 several defendants for the removal of the cause 
 to a court of the United States, that the action 
 is one in which there can be a final determina- 
 tion of the controversy so far as it concerns 
 him, without the presence of the other defend- 
 ants, is not conclusive upon the state court, but 
 it will look behind the petition and deny the ap- 
 plication, if it appears from the complaint that 
 the action is not one of that character. N. Y. C. 
 P., Sp. T., Levy v. O'Neil, 14 Abb. N. S. 63. 
 
 27. The petition is merely an initiatory step 
 in the proceedings for a removal, corresponding 
 toa declaration at law or bill in equity ; and it 
 is no part of its office to furnish proof of its 
 averments. A verificatioh on information and 
 belief is, therefore, sufficient ; and its averments 
 will, if not controverted, be taken by the court 
 as true for the purposes of the application. N. 
 Y. Supr. Ct., 1870, De Camp v. Nein Jersey Mut. 
 Life Ins. Co., 2 Sweeny, 481. 
 
 28. The petition of a defendant for the re- 
 moval of a cause into a United States court must 
 show that the plaintiff was a citizen of a State 
 different from his own, at the time of the com- 
 mencement of the action. Sup. Ct., 1872, Pech- 
 ner v. Phaaix Ins. Co., 6 Lans. 411. 
 
 29. It is not sufficient that it shows that the 
 plaintiff is at the time of the application a citi- 
 zen of suc^ other State, nor is it sufficient to show 
 that he was then a resident of that State. lb. 
 
 80. A petition for the removal of an action 
 against a corporation to the U. S. court, is suffi- 
 ciently executed, if signed by the general agent 
 of the corporation in this State, and accompanied 
 by an affidavit showing affirmatively his author- 
 ity to act for the corporation. Sup. Ct., 1875, 
 Bell V. Lycoming Ins. Co., 3 Hun, 409. 
 
 81. Defects existing in the copies of the mo- 
 tion papers served, but not in the originals on 
 which the application is made, may properly be 
 disregarded. Sup. Ct, 1874, Chatham Nat. Bank 
 of N. Y. V. Merchants Nat. Bank of W. Va., 1 
 ftun, 702. 
 
 82. Wlien effected. The mere filing of the 
 papers on the application, does not affect the 
 removal, but the court must act upon them 
 either by order or by accepting the sureties of- 
 fered. Sup. Ct, 1875, Vose v. Yviee, 4 Hun, 628. 
 
 33. When, in a case within the provisions of 
 the acts of Congress for the removal of causes 
 from a state court to the Circuit Court of the 
 
REPLEVIN— REVENUE LAW. 
 
 656 
 
 United States, proceedings have been taken by 
 a defen"aant for such removal in strict conform- 
 ity to law, the cause is effectually removed from 
 tlie state court, and any further proceedings in 
 that court would be coram nan judice and void. 
 There is, tlierefore, no propriety in an order 
 from the state court granting a stay of proceed- 
 ings in tlie cause tlierein, and an application 
 therefor sliould be denied. Grotek and Feok- 
 HAM, JJ., dissent. Ct. App., Bell v. Dix, 49 N. 
 Y. (4 Sick.) 282. 
 
 34. Tlie question of jurisdiction, where proper 
 proceedings have been taken for removal, is 
 with the U. S. Circuit Court itself ; and if the 
 plaintiff persists in proceeding in the state court, 
 tlie defendant sliould apply to the federal court 
 for the proper mandate staying proceedings, and 
 to compel a transcript of the record to be certi- 
 fied to that court ; the remedy of the plaintiff, 
 in case he claims that the cause has not, for any 
 reason been removed, being by application to 
 tlie same court to remand it. lb. 
 
 85. Where, a defendant residing in another 
 State, files his petition for the removal of a cause 
 to the U. S. court, complying strictly witli the 
 statutes, and offering a bond apparently ample 
 in all respects, the state court has no further 
 jurisdiction to proceed in the cause. The judge 
 cannot arbitrarily refuse to receive such a bond 
 without giving the party an opportunity to cor- 
 rect the same in any respect in whicli he may 
 deem it insufficient, nor will it be assumed in 
 support of such refusal that the sureties were not 
 satisfactory. Com. App., 1873. Taylor v. Shew, 
 54 N. Y. 9 Sick.) 75. 
 
 EEPLEVIN. 
 
 1. When action lies. A levy upon tlie 
 right, title and interest of a judgment debtor in 
 goods, is equivalent, in law, to a levy on tlie 
 things themselves, and amounts to a seizure of 
 such goods for the purpose of selling tlie whole 
 or a qualified interest therein, and is sufficient to 
 enable tlie real owner to maintain replevin there- 
 for. Sup. Ct., 1874, Waid v. Gaylord, 1 Hun, 607. 
 
 2. A party whose property is taken for a 
 taiT thereon under a legal warrant for its collec- 
 tion, cannot maintain an action against the 
 collector for the recovery thereof, by showing 
 that such tax was illegally imposed. Sup. Ct., 
 1874, Niagara Elevating Co., v. McNamara, 2 
 Hun, 416. 
 
 3. When the collector shows that the property 
 was taken by him under such warrant, he makes 
 out a complete defense to the action, and is en- 
 titled to a judgment for the return of the prop- 
 erty, lb. 
 
 4. Delivery of property. If the defendant 
 excepts to the plaintiff's sureties he thereby 
 waives the right to reclaim the property, and it 
 is the duty of the sheriff to deliver it to the 
 plaintiff at the end of three days, and any agree- 
 ment by him with the defendant to retain it, not 
 assented to by the plaintiff, is in violation of his 
 duty and consequently void. Ct. App., 1874, 
 Hofheimer v. Campbell, 59 N. Y. (14 Sick.) 269; 
 Aff'g S. C, 7 Lans. 157. 
 
 5. The claim of title, mentioned in sec. 216 
 of the Code, may be interposed in behalf of a 
 third party by his agent', such agent making oath 
 that lie is duly authorized thereto ; and, in such 
 case, the sheriff may require indemnity of the 
 plaintiff in replevin. N. Y. C. P., Sp. T., 1869, 
 Bishop V. Baxter, 3 Daly, 176. 
 
 6. Rights of tenant in common. In an ac- 
 tion of replevin, where the plaintiff obtains pos- 
 session of the property, if the defendant claims 
 and proves that he is a tenant in common with 
 the plaintiff of such property, lie is entitled to 
 judgment for its return, or for its full value in 
 case it is not returned. The plaintiff can com- 
 pel the defendant to account, but not in that ac- 
 tion. Sup. Ct., 1875, Walker v. Spring, 6 Hun, 
 107. 
 
 RES ADJUDICATA. 
 See FoBMBB adjudication. 
 
 RESCISSION. 
 
 See CONTKACTS. 
 
 RESIDENCE. 
 
 1. Wliat constitutes. A husband and wife 
 who, after a residence in this State, removed to 
 New Jersey and kept house there one year, and 
 tlien broke up housekeeping and were without 
 any permanent abode, but visited here and in 
 New Jersey, part of the time boarding In this 
 State, until after the commencement of tlie ac- 
 tion, when they resumed housekeeping here, — 
 Held, to be presumptively residents of this State, 
 it not appearing with what intention, as to resi- 
 dence, they removed from or returned to the 
 State. Sup. Ct., 1872, Liscomb v. New Jersey R. 
 R. i- Trans. Co., 6 Lans. 75. 
 
 2. Corporation. The word "resident," oc- 
 curring in the Constitution, or in a statute, ordi- 
 narily means an Individual — a citizen — and does 
 not mean a corporation ; and although corpor- 
 ations are sometimes, and for special purposes, 
 held to be persons, inhabitants and residents, yet 
 ordinarily the terms " residents of a town," 
 would not Include them; especially if their places 
 of business were elsewhere. Sup. Ct., 1871, fto- 
 ple V. Schoonmaker, 68 Barb. 44. 
 
 RES GEST^. 
 See EviDBircE. 
 
 RESTRAINT OF TRADE. 
 See Contracts. 
 
 REVENUE LAW. 
 
 1. Seizure for non-prodnction of receipt 
 for license tax. The power of summary 
 seizure and forfeiture, conferred by sec. 74 of 
 the internal revenue act of Congress, upon 
 revenue officials, is extraordinary and in dero- 
 gation of common right, and, if it can be sus- 
 tained as constitutional, the act must be most 
 strictly interpreted in favor of the citizen. Sup. 
 Ct., 1871, Crosby v. Brown, 60 Barb. 548. 
 
 2. The seizure of the property of a pedler is 
 authorized by that section only in case of hiu 
 
656 
 
 REVENUE STAMPS— ROCHESTER CITY. 
 
 contumacy in refusing to produce and exhibit the 
 receipt. The officer has no riglit to seize and 
 forfeit such property for the non-payment of the 
 special tax, or for any deficiency in the amount 
 paid, or any defect or insuflBciency in the receipt, 
 lb. 
 
 REVENUE STAMPS. 
 See Staupb. 
 
 REVERSION. 
 
 1. Railroad discontinued. The fee of 
 lands taken by a railroad company under a law 
 autliorizing it to acquire only their use for the 
 purposes of its road, remains in the owner, and 
 and on the discontinuance of the use, the origi- 
 nal owner or his grantee is entitled to resume 
 possession. Ct. App., 1875, Heard v. City of 
 Brooklyn, 60 N. Y. (16 Sick.) 242. 
 
 2. This reversion is a valuable interest in the 
 land, of wliich the owners cannot be deprived 
 for tlie public use without compensation. lb. 
 
 3. The conveyance by the railroad company 
 of land so taken to a city for a street, and its 
 taking up its rails and ceasing to use the land 
 for railroad purposes is a discontinuance and 
 abandonment of that use which entitles the 
 owner of the fee to re-enter and take possession, 
 lb. 
 
 See Deed. 
 
 REWARD. 
 
 1. WTien earned. To entitle one to a re- 
 ward offered for the recovery or information 
 leading to the recovery, of lost property, the 
 person claiming it must have had knowledge of 
 and acted in reference to tlie reward, or the in- 
 formation furnished must have actually led to 
 the recovery of the property. One who found 
 and advertised it without such knowledge is not 
 entitled to the reward, nor one furnishing in- 
 formation, where, before it could be acted upon 
 the property was found by another and restored. 
 Com. App., 1873, Howtand v. Lounds, 51 N. Y. 
 (6 Sick.) 604. 
 
 2. Construction of offer. An offer of "S5000 
 reward — for the arrest and conviction, or infor- 
 mation leading thereto, of the person or persons " 
 who committed a specified crime, is to be con- 
 strued as the public to whom it was addressed 
 would understand it, as for $5000, only, and not 
 as one of that amount for each of two distinct 
 acts, i. e. arrest and conviction, or information 
 leading thereto. Sup. Ct. Sp. T., 1872, Fargo v. 
 Arthur, 43 How. 193. 
 
 3. Where several persons gave information of 
 independent facts, all of which combined led to 
 the arrest and conviction of the offender, — Held, 
 that the reward should be equitably distributed 
 among them. lb. 
 
 RIPARIAJI OWNERS. 
 
 1. Boundary on pond or lake. A bound- 
 ary upon a natural, fresh water pond or lake, 
 does not carry to the centre, but only to low- 
 
 water mark. And though siibh a pond be con- 
 nected by an artificial channel with tlie ocean, 
 so that the water becomes salt and the tide ebbs 
 and flows therein, the boundary between the 
 owners of the bed and the riparian owners does 
 not shift to high water mark, but remains un- 
 changed. Com. App., 1873, Wheeler v. Spinola, 
 64N. Y. (9 Sick.) 377. 
 
 2. Conveyance by. Riparian owners can 
 convey to another ho right to the use of the 
 flowing water, to the exclusion of similar rights 
 in all the othe» riparian proprietors. Snp. Ct., 
 1876, Partridge v. Eaton, 3 Hun, 533. 
 
 3. Where the legislature, by law, declares a 
 particular stream to be a public highway for the 
 purpose of floating logs therein, and provides for 
 compensation to riparian owners, such provision 
 must be construed as applying to persons who 
 had acquired from some of the riparian owners 
 an exclusive right to use a portion of the stream 
 for floating logs, as representatives of such 
 owners. lb. 
 
 4. Restoration of bank. A riparian owner 
 has the riglit, by erecting barriers, to confine 
 the waters of a stream within their original 
 channel, and he is not responsible for any dam- 
 age to his neiglibor, unless the barriers prevent 
 the water from running in its accustomed chan- 
 nel, and with its usual force. He may not make 
 a different bank, but he can repair or rebuild a 
 broken one. Sup. Ct., 1876, Slater v. Fox, 5 
 Hun, 544. 
 
 5. Anyone interested in a navigable stream 
 may, with the assent of the riparian owner, 
 erect a structure on the injured bank of tlie 
 stream to restore it to its original condition, 
 when necessary for the proper navigation of tlie 
 river, even though it throws tlie current to 
 the opposite sliore and causes it to wash away 
 the bank on that side. lb. 
 
 6. Right of fishing. Although the owner 
 of the soil in flat lands adjoining the shore of a 
 navigable stream, over which the tide ebbs and 
 flows, may not have the exclusive right of fish- 
 ing thereon, yet he may maintain an action of 
 trespass against one who drives stakes into tlie 
 soil, moors boats there, and occupies the prem- 
 ises in drawing in seines .and nets, so as to in- 
 terfere with his rights. Sup. Ct., 1872, Whitta- 
 ker v. Burhans, 62 Barb. 237. 
 
 RIVERS. 
 
 See NA.TIQABLE STREAMS. 
 
 ROADS. 
 See Highways. 
 
 ROCHESTER CITY. 
 
 See Amendments to charter, chaps. 229, 657, Laws 
 of 1871 ; chaps. 770, 771, Laws of 1872 ; chaps. 
 47, 120, 482, 649, Laws of 1874. 
 
 1. Assessments. The "owners and occu- 
 pants" of a mill-race in the city of Rochester, 
 who, under the provisions of ch. 143, Laws of 
 1861, may be required to cover the same with 
 bridges or arches, are those only who need the 
 mill-race for their personal convenience and 
 
ROCHESTER CITY. 
 
 657 
 
 profit, and who have occasion for the water thus 
 conveyed. An assessment, therefore, of the ex- 
 pense of bridging such a race in the centre of a 
 street of the city, upon the owners of lots ad- 
 joining the street, who are not benefited by and 
 have no right to use the water of the race, is 
 unauthorized and void. Com. App., 1874, People 
 ex rel. Curtis v. Common Council of Rochester, 54 
 N. T. (9 Sick.) 507. 
 
 2. Such an assessment cannot be sustained as 
 for a mere improvement of the street. The 
 necessity for the work is the presence of the 
 race in the street, which is in no respect a bene- 
 fit thereto ; and, although the covering of it is 
 beneficial to tlie public, the expense is justly as 
 well as legally chargeable upon those to whom 
 the mill-race is a necessity and perhaps a source 
 of profit. lb. 
 
 3. The provision of sec. 608, of the city char- 
 ter (ch. 143, Laws 18m), that all assessments 
 theretofore or thereafter made for improve- 
 ments in that city shall be valid and effectual, 
 notwithstanding irregularity, omission or error 
 in the proceedings, obviates objections to the 
 proceedings on account of the adjournment of 
 the meeting for liearing objections by the min- 
 ority of the council for more than one day, — 
 of the shortness of the time allowed for the 
 hearing, when in fact all who desired a hearing 
 were heard, — and of the increase of the assess- 
 ment beyond the estimated expense by a clerical 
 error, if they would otherwise be affected there- 
 by. Sup. Ct., 1871, People ex rel. Butts v. Com- 
 mon Council of the City of Rochester, 5 Lans. 142. 
 
 4. The city charter (sec. 191) makes the de- 
 cision of the common council as to wliat tax- 
 payers are benefited by a proposed improve- 
 ment final ; and unless it be shown that persons 
 who are assessed cannot be benefited, the court 
 cannot annul the assessment as to them. lb. 
 
 6. It is not a valid objection to an assessment 
 for building a bridge, that the city has not ac- 
 quired title to the land at either end for piers 
 or approaches, notwithstanding the council are 
 prohibited by sec. 189 of the charter from tak- 
 ing any lands &c., until damages for the taking 
 are paid. The proceedings are distinct, and may 
 go on simultaneously. lb. 
 
 6. Tlie effect of the statutes relating to assess- 
 ments for local improvements in the city of 
 Rochester, is to make them, whether in form 
 made against owners and occupants, or upon 
 lands, binding personally on the individuals, as 
 well as a charge on the lands assessed ; and an 
 ordinance directing an assessment upon owners 
 and occupants of lands benefited, instead of 
 upon the lots and parcels of land, as directed by 
 the charter, is not materially defective, and the 
 irregularity is cured by the provisions of the 
 charter. Sup. Ct., 1874, Butts v. City ofRoches- 
 ier, 1 Hun, 598. 
 
 7. Property benefited. The determina- 
 tion by tile common council, that a specified 
 portion of the city is benefited by a public im- 
 provement, in pursuance of sec. 191 of the 
 charter of 1861, is not and was not designed to 
 be a determination that each and every lot 
 within such limits is to be deemed benefited by 
 such improvement, but it merely prescribes the 
 boundaries within which the assessors must 
 assess the expenses upon those whom they deem 
 to be benefited. Sup. Ct., 1871, Hassan v. City 
 of Rochester, 6 Lans. 185. 
 
 8. An omission to assess upon all the property 
 within the limits prescribed by the common 
 council, if erroneous, would be cured by the pro- 
 visions of sec. 208 of the charter. lb. 
 
 42 
 
 9. River obstructions. It was the inten- 
 tion of sec. 7, ch. 639, Laws 1865, by which the 
 common council are directed to prevent "the 
 construction of any encroachment upon, or ob- 
 structions in the bed of the QeneSee river," 
 within the city limits, to enable tlie city to pro- 
 hibit absolutely the erection of any obstruction 
 or encroachment in or upon the bed of the river, 
 regardless of the question whether it retards the 
 flow of the water through the arches of the tlien 
 existing Main street bridge. Sup. Ct., 1871, 
 City of Rochester v. Osbom, 6 Lans. 37. 
 
 10. Sevrers. The proceedings of the com- 
 mon council in relation to a sewer cannot be 
 held irregular, merely because the vote reject- 
 ing the resolution for the construction tliereof 
 was reconsidered on motion of one wlio voted in 
 the minority, and afterward passed. Sup. Ct., 
 1871, People ex rel. Locke V. Common Council of the 
 City of Rochester, 5 Lans. 11. 
 
 11. Nor would it be irregular because recon- 
 sidered and passed at meetings subsequent to the 
 one of which the parties interested were legally 
 notified, and at which they were heard, without 
 giving them further opportunity to be heard. lb. 
 
 12. The fact that the notice of the intended 
 sewer does not state its proposed depth, does not 
 render the resolution for its construction invalid ; 
 but, it seems, if not sufficiently low to admit 
 drainage into it from a lot, the owner should not 
 be assessed for benefits. lb. 
 
 13. If a meeting of the council might have 
 been regularly held at the time a particular 
 resolution was passed, it will be presumed to 
 have been so held, in the absence of proof to the 
 contrary. lb. 
 
 14. The provisions of the city charter prescrib- 
 ing the length of notice to be given by the asses- 
 sors for the hearing of parties affected by assess- 
 ments for local improvements, and by the treas- 
 urer of the receipt of the roll by him, are direc- 
 tory merely, and a failure to t!omply with the 
 statute does not invalidate the proceedings. lb. 
 
 15. The city has the riglit to collect the 
 amount of the estimated .expense of a sewer, 
 even though it may exceed the actual expense, 
 and the excess, if any is, by sec. 207 of tlie 
 charter (ch. 143, Laws 1866), to be apportioned 
 by the common council among those assessed. 
 Sup. Ct.; 1872, Fisher v. City of Rochester, 6 Lans. 
 225. 
 
 16. Materials taken from the street in con- 
 structing the sewer belong to the owners of the 
 lots, and not to city, and the value thereof, 
 though used by the contractors, is not to be de- 
 ducted in ascertaining tlie cost of the sewer. lb. 
 
 17. The commissioners of public works of the 
 city of Rochester not being in terms, by the 
 statute, declared to be a corporation, it is ques- 
 tionable whether contracts for the construction 
 of sewers should not be made with the city and 
 not with the commissioners ; and especially 
 where it has the custody of tlie funds for that 
 purpose, it is a proper party defendant to an 
 action to declare void the action of the commis- 
 sioners in respect to the construction of a sewer, 
 and to restrain the collection of an assessment 
 therefor, or tlie payment of moneys already 
 collected. Sup. Ct., 1875, Lutes v. Briggs, 6 
 Hun, 67. 
 
 18. An ordinance for " deepening and enlarg- 
 ing " a particular sewer, "by enlarging that 
 portion under said mill, constructing a tunnel 
 under the race, and deepening that portion of the 
 sewer in M street and P street,"" does not autho- 
 rize the construction of a tunnel under M and P 
 streets. GSilbbrt, J., dissents. lb. 
 
658 
 
 SALE OF CHATTELS. 
 
 SALE OF CHATTELS. 
 
 I. CoNSTKnoTioif ; Validitt , 658 
 
 IL Whek title passes; Delivery and 
 
 ACCEPTANCE 661 
 
 III. Rescission ; Stoppage in teansitu. 663 
 
 IV. Wakkanty 664 
 
 v. Eights op parties 666 
 
 L Construction ; Validity. 
 
 1. "What is a sale. Where the subject of 
 the contract exists at tlie time, and is not to be 
 afterward manufactured or constructed, though 
 sometliing is agreed to be done to it to put it in 
 condition for use, or make it marketable, the 
 contract is one of sale, and not one for work and 
 labor. Sup. Ct, 1874, Bates v. Coster, 1 Hun, 400. 
 
 2. Thus, a contract to purchase a stallion colt, 
 if the seller will have him gelded and keep him 
 until he gets well, is a contract of sale. lb. 
 
 3. A bill of sale of stock, which recites that 
 the stock has been, on the day of the date 
 thereof, transferred to the defendant, but that 
 the plaintiff is to hold the same for the payment 
 of a note given by the defendant for the price of 
 the stock, and contains an agreement by the 
 plaintiff to deliver the stock on payment of the 
 note, implies a present and executed sale of the 
 stock, with an agreement that the plaintiff shall 
 hold it as collateral to the note, and not a mere 
 executory agreement to sell the stock, and the 
 
 Elaintiff can sue on the note when due, without 
 rst tendering the stoc^, or transferring it on the 
 books of the company. Sup. Ct., 1874, Jomes v. 
 Hamilton, 2 Hun, 630. 
 
 4 Conditional sale. Where chattels are 
 sold and delivered upon condition that the title 
 shall not pass until payment is made, the vendee 
 acquires no title until the condition is fulfilled, 
 and can confer none even upon a bona fide pur- 
 chaser for value. Com. App., 1873, Maynard v. 
 Anderson, 54 N. Y. (9 Sick.) 641. 
 
 5. The delivery by a debtor to his creditor of 
 a bill of sale and storage receipt of goods, which 
 the former retains in his possession, with the 
 understanding that he may, as he pays on ac- 
 count of the indebtedness, withdraw a propor- 
 tionate share of the goods ; while the latter re- 
 tains the original note representing the indebted- 
 ness, — Held, to be a conditional sale and not 
 a chattel mortgage. Daly, J., dissents. N. Y. 
 C P., 1871, Gomez v. Kamping, 4 Daly, 77. 
 
 6. Where an agent of the shippers received 
 cotton at New York, which had been ordered by 
 parties there, with directions not to deliver un- 
 less he was satisfied that the draft on the pur- 
 chasers sent to him would be paid, and, not 
 being satisfied, refused to deliver it until the 
 draft should mature and be paid, the purchasers 
 agreeing, if the draft was not paid at maturity, 
 to give up all claims to the cotton and' allow the 
 agent to sell it, — Held, that the sale was condi- 
 tional, and the purchasers having failed to pay 
 the draft at maturity, no title to the cotton pas- 
 sed to them or their assignee. Ct. App., 1873, 
 N. Y. Guaranty and Indemnity Go, v. Flynn, 55 
 N. Y. (10 Sick.) 653; Affg S..C., 65 Barb. 865. 
 
 7. A tender of the price for all the cotton ex- 
 cept seven bales, before the cotton was resold 
 by the agent, was of no avail, to vest the title 
 in the purchasers. lb. 
 
 8. Upon a sale of teas for cash on delivery, 
 the chests needing cooperage were sent to the 
 purchasers, under an arrangement that^the sel 
 
 sent them until the cooperage was done, having 
 meantime refused to let the cooper do the work 
 when he appeared for that purpose, — Held that 
 the sale was conditional, and the delivery' con- 
 veyed no title, and that the sellers were entitled 
 to recover the property from one to whom the 
 purchasers had sold it Sup. Ct., 1874, Hill v 
 McKenzie, 1 Hun, 110. 
 
 9. Where property is sold and delivered upon 
 an agreement that the purchaser shall pay a cer- 
 tain sum on delivery, and the balance in monthly 
 payments afterward, and that the title shall re- 
 mam in the vendor until the whole purchase ' 
 price IS paid, the delivery is conditional, and the 
 condition may be waived, and would be deemed 
 waived by a neglect of the vendor for a consid- 
 erable time aft^r default to take steps to assert 
 his rights to repossess the property, or by the 
 commencement of an action for the balance of 
 the purchase money. Sup. Ct., 1875, Wright v 
 Pierce, 4 Hun, 351. 
 
 10. Construction. A contract which recites 
 the purchase by one party of certain goods at 
 prices specified, in consideration of which he 
 agrees to deliver to the other, on their arrival at 
 the place of destination, government vouchers, 
 for the amount of such goods, imposes no per- 
 sonal liability on the buyer further than to de- 
 liver the stipulated vouchers ; and if they are 
 not paid, the loss is not his but the seller's. 
 Com. App., 1871, Wise v. Chase, H N. Y. (5 
 Hand,) 337; Eev'g S. C, 3 Bob. 35. 
 
 11. Where the owner of an iron foundry 
 known as the Poughkeepsie Iron Works, in 
 which he manufactured iron known as No. 1, 
 and No. 2, contracted for the sale of " Pough- 
 keepsie foundry pig iron. No. 1 and No. 2." — 
 Held, that the contract was performed by a de- 
 livery of iron of those brands manufactured at 
 the foundry, and that it was unimportant whe- 
 ther the iron was good or poor, or whether it 
 was above or below the average of iron of the 
 same numbers manufactured elsewhere ; nor 
 was there an implied warranty that it was fit 
 for a particular use, or that it would accomplish 
 the same results as iron of the same brands 
 previously manufactured at the same place. 
 Com. App., 1872, Beck v. Sheldon, 48 N. Y. (8 
 Sick.) 365. 
 
 12. Entire. A contract for the sale and pur- 
 chase of 119 bales of cotton, of certain marks, 
 to be paid for on delivery, is entire and indivi- 
 sible, and cannot be satisfied by a delivery or 
 tender of delivery of a quantity less than the 
 whole. N. Y. Supr. Ct., 1871, Kein v. Tupper, 
 42 How. 437; S. C, 38 N. Y. Supr. (1 J. & Sp.) 
 465. 
 
 13. Although, under such contract, 70 bales 
 were taken from the warehouse, sampled and 
 weighed, and then restored by direction of the 
 purchasers for their account, yet they would not 
 be liable for the price thereof unless the balance 
 were delivered, even though such delivery was 
 prevented by their destruction by fire. lb. 
 
 14. A contract to deliver 15 barrels of oil, at 
 a specified price per gallon, is an entire contract ; 
 and the vendor, in case of a part delivery only, 
 can recover neither upon the contract nor a 
 quantum meruit, although such part was accepted 
 by the vendee. N. Y. Supr. Ct., 1870, Moses v. 
 Banker, 2 Sweeny, 267. 
 
 15. Executed. A sale of stock, deliverable 
 within a certain tim« " seller's option," the_ pur- 
 chaser pnying interest on the purchase money 
 from the time of sale to the time of delivery, is 
 
 lers should send their cooper to do the work, an executed contract, and passes the title in pre 
 and the purchasers twice refused to pay the bill | senti. Ct, App., 1871, Currie v. White. 45 N. Y. 
 
SALE OF CHATTELS. 
 
 659 
 
 (6 Hand,) 822 ; Eev'g S. C, 1 Sweeny, 166 : 7 
 Rob. 637 : 37 How. 330, 384. 
 
 16. Purchaser, Twho is. Where'a party who 
 had been furnishing paper to tlie publisher of a 
 newspaper and charging it to him with the ad- 
 dition of the title of the newspaper, continued, 
 after the formation of a stock company to pub- 
 lish the same newspaper, to furnish it with paper 
 on the order of such former proprietor, and 
 upon his representation that he was the mana- 
 ger and" largest stockholder, and was substan- 
 tially the association, and there was no need of 
 changing the mode of keeping the account, con- 
 tinued to charge it as before, and made out and 
 receipted bills therefor to such former prop- 
 rietor, — Held, that the sale was to him and not 
 to the association. Monell, J. dissents. N. Y. 
 Supr. Ct., 1871, Butler v. Evening Mail Asso,, 34 
 N. Y. Supr. (2 J. & Sp.) 58. 
 
 17. Sale to arrive. A contract for the sale 
 of goods shipped for vendors' account, to arrive, 
 covers goods actually shipped to the vendors' 
 and entered in their name, they having the bills 
 of lading and invoices ; and the purchaser can- 
 not refuse to receive them merely because the 
 vendors borrowed funds or credits at the place 
 of shipment, to enable them to pay therefor. 
 N. Y. Supr. Ct., 1874, Stokes v. Recknagel, 38 N. 
 Y. Supr. (6 J. & Sp.) 368. 
 
 18. Terms not specified. When an order is 
 sent to a manufacturer or merchant for an ar- 
 ticle in which he deals, silent as to price, and 
 the order is accepted and executed, or simp- 
 ly accepted, the law fixes the price at the 
 current rate at which they are sold, and the 
 party ordering the goods is equally bound to 
 pay this price as if it had been so stated in the 
 order ; and if the order is for a mixture, to a 
 manufacturer of that article, without specifying 
 the proportions of each ingredient, it empowers 
 the manufacturer to compound the same in the 
 usual manner. Such a transaction, therefore, 
 will constitute a valid contract. Ct. App., 1872, 
 Konitzky v. Meyer, 49 N. Y. (4 Sick.) 571. 
 
 19. Validity. Where all the patrons of a 
 cheese factory, being joint tenants of the cheese 
 manufactured, consent that a committee of 
 three, appointed for that purpose, shall sell the 
 whole of the cheese belonging to all, they be- 
 come jointly liable to perform any valid con- 
 tract for the sale thereof, made by their com- 
 mittee. Sup. Ct., 1872, Hawley v. Keeler, 62 
 Barb. 231 ; Aff'd, S. C, 53 N. Y. (8 Sick.) 114. 
 
 20. A contract of sale made by two of the 
 three members of such committee will be held 
 binding upon all the owners, if the evidence 
 shows that the other committee man and such 
 owners had knowledge of and assented to such 
 exercise of the power of sale by them. lb. 
 
 21. Conditional sale. A sale of a stock of 
 goods in good faith, on condition that the title 
 should remain in the vendor until they werepaid 
 for and certain other debts were paid, — Held, 
 valid as against creditors. Sup. Ct., 1874, Pow- 
 ell V. Preston, 1 Hun, 518. 
 
 22. A further agreement that goods subse- 
 quently purchased from third parties should be- 
 come the property of such vendor, as fast as pur- 
 chased, on like conditions, — Held, good as be- 
 tween the parties, and good as against creditors 
 who did not levy on them until such vendor had 
 taken possession under his contract. lb. 
 
 23. As affected by fraud. A purchase of 
 goods with a design not to pay for them is such 
 a fraud as wUl avoid the sale ; and on a sale 
 procured by such a fraud, no title will pass to 
 the vendee, but the vendor will still retain his 
 
 legal right to the goods, and may reclaim them 
 from the fraudulent vendee, or from any one 
 who is not a bona fide purchaser for value. Sup. 
 Ct., 1873, Barnard v. Campbell, 65 Barb. 286 ; 
 Aff'd, S. C, 55 N. Y. (10 Sick.) 466. 
 
 24. If the fraudulent vendee has neither pos- 
 session nor the indicia of title, at the time he 
 makes sale of the property, the purchaser can- 
 not be protected as a bona fide purchaser, al- 
 though he had no notice of the fraud, but paid 
 full value. lb. 
 
 25. Sale by fraudulent purchaser. A pur- 
 chaser of personal property, who has induced 
 the delivery thereof to himself by fraud, can 
 nevertheless convey a good title to a purchaser 
 in good faith for value. Com. App., 1871, Pad- 
 don V. Taylor, 10 Abb. N. S. 370; S. C, 44 N. Y. 
 (6 Hand,) 371. 
 
 26. Mere possession as an agent or bailee, 
 without power to sell, or as a thief, will not 
 enable the seller to give good title ; but it is 
 otherwise where the possession is under a sale, 
 although it may be voidable for fraud. lb. 
 
 27. The surrender by the second purchaser of 
 his vendor's note, given for money loaned, and 
 equal in amount to the value of the property, is 
 a good consideration to support the sale as 
 against the original vendor. lb. 
 
 28. When the owner of personal property 
 makes an actual and unconditional delivery to 
 his vendee, with intent to transfer the title, a 
 subsequent bona fide imrchsLser from such vendee 
 acquires a valid title, although the owner was 
 induced to sell by the fraud of his vendee. Sup. 
 Ct., 1873, Barnard v. Campbell. 65 Barb. 286 ; 
 Aff'd, S. C, 55 N. Y. (7 Sick.) 456. 
 
 29. One R, pretending that he was running a 
 distillery in a neighboring city in the name of 
 another, sold five barrels of Whiskey to a third 
 party, and then, assuming to be the agent of the 
 latter, ordered the same quantity from a whole- 
 sale dealer in said city, who shipped it to the 
 supposed principal, branding the barrels with 
 his own ^ame and mark, and sending to the 
 consignee, an invoice of the same, which the 
 latter failed to receive. Such consignee, being 
 notified of their arrival by B, who showed him 
 a pretended invoice for the same, paid the 
 freight and purchase price and took possession. 
 Held, that he acquired no title as against the 
 consignor, the latter not having clotlied B with 
 any authority, real or apparent, as owner, nor 
 been gnilty of any laches. Ct. App., 1873, Afc- 
 Goldrich V. Willits. 52 N. Y. (7 Sick.) 612. 
 
 30. As affected by Statute of frauds. In 
 order to constitute an acceptance, within the 
 statute of frauds, there must be some act of the 
 vendee to indicate that he receives and accepts 
 the goods as his property. A mere verbal ac- 
 ceptance is not sufficient. Sup. Ct., 1875, Ham 
 V. Van Orden, 4 Hun, 709. 
 
 31. Mere words are not sufficient to constitute 
 a delivery, within the meaning of the statute of 
 frauds, of personal property sold. Sup. Ct., 1875, 
 Mom-e V. Bixby, 4 Hun, 802. 
 
 32. To render a verbal contract for the sale of 
 chattels of greater value than $50 valid under 
 the statute of frauds, there must be not only a 
 delivery but a voluntary and unconditional ac- 
 ceptance. N. Y. Supr. Ct., 1875, Brewster v. 
 Taylor, 39 N. Y. Supr. (7 J. & Sp.) 159. 
 
 33. Where, in a negotiation for a wagon, the 
 price of which was stated, the purchaser wish- 
 ing a pole to it and being unwilling to pay the 
 price of a new one, the seller agreed to fit to it 
 a pole which the purchaser had without charge, 
 if it could be done without great expense, and 
 
660 
 
 SALE OF CHATTELS. 
 
 having sent for and found that it could not be so 
 fitted, sent the wagon to the place of delivery 
 without notice to thepurchaser, and there it was, 
 destroyed by fire, — Ueld, that there was no ac- 
 ceptance of the wagon as it stood, without 
 having a pole fitted to it. lb. 
 
 34. After acceptance of goods purchased, a 
 delivery to the carrier designated by the pur- 
 chaser is sufiicient to take the case out of the 
 statute of frauds and vest the title in the pur- 
 cliaser. Com. App., 1871, Cross v. O'Donnell, 44 
 N. Y. (5 Hand,) 661. 
 
 35. In tlie absence of a written memorandum, 
 and of part payment as well, both delivery and 
 acceptance are necessary to pass the title to the 
 purchaser; but the acceptance may precede 
 delivery, and then the carrier designated by the 
 pui'chaser has power to bind the latter by re- 
 ceiving tlie goods. lb. 
 
 36. Wliere, under a verbal contract for the 
 sale of 25 sheep, for a total price exceeding 
 $50, the sheep were selected and separated 
 from the seller's flock and marked with the pur- 
 chaser's mark,' and put in a separate enclosure, 
 but were afterward put with the seller's sheep 
 under an agreement that he should pasture 
 them a few days, — Held, that the evidence 
 clearly warranted the jury in finding a delivery 
 and acceptance, taking the case out of the stat- 
 ute of frauds. Sup. Ct., 1873, Rappleye v. Adee, 
 65 Barb. 589. 
 
 37. A parol contract for the sale of goods ex- 
 ceeding $50 in value to several joint purchasers, 
 becomes valid as to all upon delivery to and 
 acceptance by one of such purchasers. Sup. Ct., 
 1872, Smith v. Milliken, 7 Lans. 336. 
 
 .38. A delivery of a horse, harness and plough, 
 and subsequent possession by the purchaser, is 
 sufficient to perfect a sale otherwise invalid 
 under tlie statute of frauds, although not made 
 until some time after entering into the verbal 
 agreement therefor. Sup. Ct., 1874, Petrie v. 
 Darwin, 1 Hun, 617. 
 
 89. A verbal sale of a mowing machine, not 
 present at the time, nor ever actually delivered 
 to the purchaser or to anyone appointed by him 
 to receive it, the same to be received in satisfac- 
 tion of a debt of more than $50, — Held, void 
 under the statute of frauds. Si^. Ct., 1872, 
 Walrath v. Richie, 5 Lans. 362. 
 
 40. "Wliere purchasers verbally ordered a large 
 amount of lumber from lumber dealers, who 
 also had a planing mill at which they dressed 
 and cut lumber for sale, the same to he dressed 
 and out from lots examined in the dealer's yard, 
 directing them, when the lumber was ready for 
 delivery, to place it on their dock and notify a 
 forwarder, who would send a boat for it, — no 
 part of the price being paid, and no memoran- 
 dum of the sale signed by the purchasers, — and 
 the lumber was prepared as directed and placed 
 on the sellers' dock, measured and ready for 
 delivery, and the forwarder notified of its being 
 there and requested to send a boat for it and 
 take it away, but he not having received any 
 instructions in regard to it, paid no attention to 
 the request, and ou the next day, being Sunday, 
 the lumber was consumed by fire with the mill 
 and other property, — Held, that the contract 
 was one for the sale of goods, not a mixed one 
 for a sale and labor, and that there was no suffi- 
 cient receipt and acceptance by the purchasers 
 to take the case out of the statute of frauds, and 
 pass the title to them, so as to make them liable 
 for the price notwithstanding the loss. Sup. Ct., 
 1871, Coolce V. Millard, 5 Lans. 243. 
 
 41. Earnest money paid. A contract for 
 
 the purchase of property, at the option of the 
 purchaser, is valid and binding on tlie parties, 
 when earnest money is paid thereon, although 
 the value is more than $50 and the contract not 
 in writing. Sup. Ct., 1871, Brown v. Hall, 5 
 Lans. 177. 
 
 42. Thus, where a purchaser paid earnest 
 money on a contract, which was absolute for the 
 sale of 10 cows at $.50 each, and at his option for 
 two more at $75 each, but afterward made ab- 
 solute as to those two, and received and paid for 
 the 10 cows, deducting the earnest money from 
 their price, the vendor agreeing to accept a 
 third party, to whom the purchaser had sold the 
 two other cows, as his debtor for the price 
 thereof, and the vendor kept and fed such two 
 cows for such third party at an agreed price, — 
 Held, that the title to such two cows passed to 
 such third party, and by the contract for the 
 keeping of the cows there was a delivery of 
 them, the vendor becoming a mere bailee. lb. 
 
 43. The application of the earnest money to 
 the payment for the ten cows, could not affect 
 the validity of the original contract. lb. 
 
 44. The vendor could not, in such a case, 
 question the validity of the sale to such third 
 party under the statute of frauds. lb. 
 
 45. Sale of attached goods. The owners 
 of a stock of goods, which have been levied on 
 by the sheriff by virtue of an attachment in his 
 hands, have still the general ownership and 
 right to sell them subject to the attachment ; 
 and a sale made by them according to an inven- 
 tory made for that purpose, and for a price 
 agreed upon, part of which is paid, is effectual 
 to pass the title, if not in fraud of creditors ; and 
 the purchaser is entitled to the possession of the 
 goods upon payment to the sheriff of the debt 
 for which they were attached, and costs of the 
 proceedings. Sup. Ct., 1872, Klinck v. Kelly, 63 
 Barb. 622. 
 
 46. Sale by person having mere posses- 
 sion. Where by agreement between P and C, 
 the former was to buy logs and pay help to saw 
 them at C's mill, and to hold and own the lum- 
 ber, and have the entire control of selling it, and 
 after its sale to pay himself for all advances and 
 interest, and pay the surplus to C, — Held, that 
 C had no title to the lumber and no right to sell 
 it; but if he did sell it, with the knowledge of P 
 to a.person who knew of P's title, in payment of 
 his own debt, the purchaser would be liable to 
 P for the price. Sup. Ct., 1864, Penfield v. Dim- 
 bar, 64 Barb. 239. 
 
 47. The principle that a purchase from a per- 
 son in possession and clothed with the indicia of 
 ownership passes title as against the true owner, 
 has no application to such a case ; the indicia 
 referred to in the decisions being written evi- 
 dence of title. lb. 
 
 48. — by party having no title. The 
 custom of markets overt does not apply to this 
 country. Accordingly — Held, that the purchase 
 of a chronometer from a watchmaker in Liver- 
 pool, England, whose title was derived through 
 a mere bailee for hire from the owner in New 
 York, conferred no title upon the purchaser as 
 against such owner. N. Y. C. P., 1869, Roberts 
 v. Dillon, 3 Daly, 50. 
 
 -49. — by one partner to pay private 
 debt. A sale of partnership goods by one part- 
 ner, without the knowledge or consent of his co- 
 partners, to pay his private debt, does not pass 
 the title to the purchaser, but the firm or its 
 assigns may reassert title, and claim and recover 
 the value of the property. N. Y. Supr. Ct, 1871, 
 Geery v. Cockroft, 33 N. Y. Supr. (IJ. & Sp.) 146. 
 
SALE OP CHATTELS. 
 
 .661 
 
 50. TTnauthorized sale. Where a consignor 
 of goods, shipped to his own account, care of C, 
 at the time of making the shipment wrote the 
 latter, informing him at what price he could have 
 them and directing him, in case he did not take 
 them, to care for them until directed to send them 
 elsewhere, and C,without answering the letter and 
 before the arrival of the goods, gave to a third 
 party an order therefor, by virtue of which he 
 took possession of them on their arrival, — Held, 
 that C had no title or apparent right to sell and 
 could give none to another, and that such party 
 was not protected by the factor's act, as C had 
 neither possession nor documentary evidence of 
 title. Com. App., 1872, Elliott v. Bidwell, 51 N. 
 Y. (6 Sick.) 644. 
 
 51. Ratification. A sale of chattels, void 
 by the statute of frauds, because not in writing, 
 cannot be ratified and rendered legal by an as- 
 signment of the vendor's account against the 
 vendee, by virtue thereof, to a third party. To 
 effect that, there must be a concurrence of both 
 vendor and vendee in some one of those things 
 required by the statute. Cora. App., 1871, Hides 
 v. Cleveland, 48 N. Y. (3 Sick.) 84; Bev'g S. C, 
 39 Barb. 573. 
 
 n. Whek title passes ; deuveet and accept- 
 
 ANOE. 
 
 52. Intent governs. Whether a delivery of 
 goods is absolute so as to pass the title, or con- 
 ditional upon payment being made, depends 
 upon the intention of the parties. It is not ne- 
 cessary that the condition be declared in express 
 terms at the time ; but the intent can be infer- 
 red from the acts of the parties or the circum- 
 stances of the case. Com. App., 1872, Hammett 
 V. Linneman, 48 N. Y. (3 Sick.) 399. 
 
 63. Conditional sale. Under a conditional 
 sale and delivery of property, the title would 
 remain in the vendor, as against the vendee and 
 all persons claiming under him with notice, until 
 performance of the condition, but not as against 
 bona fide purchasers from such vendee. Sup. 
 Ct., 1862, Wait v. Green, 62 Barb. 241 ; Aff'd, 
 S. C, 46 How. 449 ; dfe N. Y. (9 Tiff.) 556. But 
 see 46 How. 630. 
 
 64. Although a factor, to whom goods are 
 consigned to be sold on commission, may have 
 made advances to his consignor, to an amount 
 exceeding the value of the consignment, under 
 a prior agreement by the consignor to make the 
 shipment, yet if, at the time of shipping, the 
 consignor attaches a condition to the delivery, 
 as, that he shall accept a draft drawn at the 
 same time, the title does not pass until accept- 
 ance of the draft. Ct. App., 1872, Cayuga County 
 National Bank v. Daniels, 47 N. Y. (2 Sick.) 681. 
 
 55. Where, upon a sale of chattels for cash on 
 delivery, the purchaser, having some distance 
 to go for his funds, obtains permission to ship the 
 goods at once, on condition that he goes for such 
 funds as soon as possible, that is not a waiver 
 of the cash payment, and title does not pass 
 until the price is actually paid. Ct. App., 1871, 
 Gibson V. Tobey, 46 N. Y. (1 Sick.) 667 ; Bev'g 
 S. C, 53 Barb. 191. 
 
 56. Where goods are sold to be paid for " on 
 arrival," the title does not pass upon delivery to 
 the carrier, but only when payment is made on 
 arrival, or is waived, either by suffering the 
 goods to pass into the possession of the purchaser 
 or by giving him time for payment ; and until 
 tlien the seller may reclaim them from the car- 
 rier, or from an attaching creditor of such pur- 
 
 chaser. N. Y. 0. P., 1871, Clark v. Lynch, i 
 Daly, 83. 
 
 57. Delivery to carrier. Where goods are 
 delivered by the vendor to a carrier, pursuant 
 to a positive order therefor from the vendee, 
 which specifies the mode of conveyance, the 
 title passes absolutely to the vendee, subject to 
 the right of stoppage in transitu, and the vendor 
 has no right of action against the carrier for a 
 loss sustained on the road. Ct. App., 1871, 
 Krulder v. Ellison, 47 N. Y. (2 Sick.) 36. 
 
 58. Where goods are shipped in pursuance of 
 a previous agreement therefor, to repay the con- 
 signee for a loan made upon the credit of the 
 shipment, and an invoice of the goods stating 
 the consignment and manner and date of ship- 
 ment, is forwarded to such consignee, the title 
 vests at once in the latter, as effectually as if 
 the bill of lading had been delivered to him. 
 Ct. App., 1873, Bailey v. Hudson Riv. R. R. Co., 
 
 49 N. Y. (4 Sick.) 70. 
 
 59. Delivery on board a vessel designated for 
 that purpose in the contract of sale, is sufficient 
 to pass the title of the property sold. Ct. App., 
 1873, Silver v. Bowne, 55 N. Y. (10 Sick.) 659. 
 
 60. Whether, if acceptance was necessary, 
 the master of the vessel, in the absence of ex- 
 press authority, could bind the vendee, query ? lb. 
 
 61. In the absence of any order or agreement 
 on the part of a purchaser to have the property 
 purchased sent to him by railroad or of some 
 usage or course of trade from which an agree- 
 ment to have it so sent may be inferred, a delivery 
 to a railroad company is no delivery to the pur- 
 chaser. Sup. Ct., 1872, Everett v. Parks, 62 
 Barb. 9. 
 
 62. Where parties in New York furnished 
 casks to other parties at Lockport, under an 
 agreement that the latter should fill them with 
 cider, have them loaded on the cars at Lockport, 
 
 50 casks in a car, take a receipt therefor, and 
 transmit that, with a draft for the price, to the 
 purchasers, — Held, that the title did not pass to 
 the purchasers upon the delivery of part to the 
 carrier, nor until a car was loaded and a receipt 
 taken. Sup. Ct., 1875, Greene r. N. Y. Cent. Sf 
 Hud. Riv. R. R. Co., 4 Hun, 378. 
 
 63. Delivery of bill of lading. The deliv- 
 ery of a bill of lading with intent to pass the 
 title, will haife that effect, though not payable 
 to assigns, or though, if so payable, it be not 
 indorsed. Com. App., 1870, City Bank v. Rome, 
 
 Watertown and Ogdensburg R. R. Co., 44 N. Y. 
 (5 Hand,) 136. 
 
 64. The indorsement and delivery of a bill of 
 lading of goods shipped or afloat, has the same 
 effect as a delivery of the -goods themselves, 
 where the intention is to transfer thereby the 
 title to the goods, or to pledge them by way of 
 security for advances. N. Y. C. P., 1871, Indiana 
 Nat. Bank v. Colgate, 4 Daly, 41. 
 
 65. Where, on a shipment of goods to a factor 
 to be sold on commission, the bill of lading is 
 delivered to a bank as security for the payment 
 of a draft drawn against the consignment and 
 discounted by it, such delivery will operate to 
 transfer the title to the bank, and it can hold 
 the property, as against the consignee, although 
 he may have made advances equal to the value 
 thereof, under a prior agreement with the con- 
 signor to make the shipment. Ct. App., 1872, 
 Cayuga County National Bank v. Daniels, 47 N. 
 Y. (2 Sick.) 631. 
 
 66. — of bill of sale. A receipted bill of 
 sale of 100 barrels and 4000 gallons of oil, recited 
 that the same was to be dehvered when called 
 for, subject to a certain charge per month stor- 
 
662 
 
 SALE OF CHATTELS. 
 
 age, and was to be in quality like the sample de- 
 livered, and it was understood that the same was 
 parcel of 150 barrels in possession of the vendor, 
 only 68 of which corresponded to the sample, 
 the remainder being part superior and part in- 
 ferior thereto, — Held, that the title did not pass, 
 and the risk of leakage was with the vendor 
 until actual delivery. Com. App., 1872, Foot v. 
 Marsh, 51 N. Y. (6 Sick.) 288. 
 
 67. — of bought and sold notes. A bought 
 and sold note which states the sale of a quantity 
 of hides, " no allowance except for sea damaged, 
 price 12 cents per pound cash," shows a purchase 
 of all the hides referred to subject to a deduction 
 for those which are sea damaged, and under it 
 the title to the whole passes to the purchasers 
 and the right of the vendors to sue for the price 
 accrues immediately upon delivery of tlie hides. 
 Sup. Ct, 1871, Bacon v. Gilman, 4 Lans. 456 ; 
 S. C, 60 Barb., 640 ; AfE'd, S. C, 57 N. Y. (12 
 Sick.) 656. 
 
 68. — of order on trarehouse. The de- 
 livery of an order on a warehouseman for goods 
 which have been weighed and set apart for the 
 owner, and which are the only goods owned by 
 the latter in the warehouse at the time, is a 
 sufficient delivery to pass the title and charge 
 the purchaser with the price. Ct. App., 1871, 
 Hankins v. Baker, 46 N. Y. (1 Sick.) 666. 
 
 69 — of receipt. A receipt for goods given 
 to the owner, at whose factory they are stored 
 by his superintendent, is not a warehouse re- 
 ceipt within the meaning of ch. 826, sec. 6, Laws 
 of 1858 (3 Edm. Stats., 668), and an indorsement 
 of it as security for a loan of money, the posses- 
 sion of the property remaining unchanged, will 
 not transfer the title as against subsequent at- 
 taching creditors. Ct. App., 1871, Yenni v. 
 McNamee, 45 N. Y. (6 Hand,) 614. 
 
 70. Although the owner of the goods had, 
 previous to taking the receipt, conveyed the 
 factory to anotlier, that will not affect the rights 
 of the parties, so long as he remains in possession 
 and controls the working of the factory. lb. 
 
 71. — of warehouse receipt. The de- 
 livery of warehouse receipts for goods by a 
 vendor to a purchasei", with invoice and weigh- 
 er's return, thus placing the goods under his 
 control, is a sufficient delivery to pass the title. 
 N. Y. Supr. Ct., 1874, Stokes v. Becknagel, 38 
 N. Y. Supr. (6 J. & Sp.) 368. 
 
 72. The delivery for value of a warehouse re- 
 ceipt for goods, transfers to the holder a title to 
 them superior to that of a subsequent pur- 
 chaser in good faith from his vendor. Com. App., 
 1872, Urban, v. Guthrie, 51 N. Y. (6 Sick.) 664. 
 
 73. Under the provisions of ch. 326, sec. 6, 
 Laws of 1858, a bona fide transfer of a ware- 
 house receipt not having the word " non-nego- 
 tiable " thereon, vests in the purchaser the title 
 to the property specified, together with all reme- 
 dies of the former owner against the warehouse- 
 man for non-delivery. Accordingly, when a 
 vendee of goods under an executory contract of 
 sale accepts such a receipt, the presumption is 
 that he does it as a performance and satisfaction 
 of the contract by the vendor, and, in the ab- 
 sence of proof to the contrary, he cannot have 
 recourse to the latter for any breach of contract 
 by the warehouseman. Ct. App., 1874, Whit- 
 lock V. Hay, 58 N. Y. (13 Sick.) 484. 
 
 74. Something remaining to be done. 
 The delivery of bought and sold notes upon a 
 contract for the sale of a specified number of 
 bales of cotton, of certain marks, at a specified 
 price per pound, payable on delivery, does not 
 make a complete sale so as to vest the title in 
 
 the purchaser, so long as something remains to 
 be done by the seller to ascertain the quality, 
 and by the purchaser to ascertain the quantity, 
 N. y: Supr. Ct., 1871, Kein v. Tupper, 42 How. 
 437 ; S. C, 33 N. Y. Supr. (1 J. & Sp.) 465. 
 
 75. A delivery of part under sucli an entire 
 contract could not vest the title to such part in 
 the purchaser, so as to make the Idss his if they 
 were destroyed by fire before the delivery of 
 the balance, after being re-stored by him to his 
 own account in the same warehouse. MoCrNN, 
 J., dissents. lb. 
 ■ 76. Where a contract was for the sale of all 
 the sheep in a certain lot, except three which 
 were fully identified, at a certain price per 
 head, the number to be ascertained by count, 
 and the vendee paid.a certain sum down, agree- 
 ing to pay the balance at a subsequent time 
 when he should take the sheep away, the vendor 
 to pasture them meanwhile, — Held, that the 
 title passed immediately, and that necessarily 
 carried with it a right to the wool upon the 
 sheep, and that, for a severance before final de- 
 livery, the vendor would be liable for a con- 
 version. Com. App., 1872, Cfroat v. Gile, 51 
 N. Y. (6 Sick.) 481. 
 
 77. A purchaser who agrees to take the 
 seller's crop of hops, then present, dried and 
 gathered in heaps, and pays part of the price, 
 the seller agreeing to bale and deliver them at 
 a time and place named, is at liberty to refuse 
 to receive such hops, or any of them, if the 
 seller mixes through the bales heated and 
 moulded hops, part of the lot sold, by reason of 
 which the good hops are deteriorated and rend- 
 ered almost worthless. Sup. Ct., 1871, Keeler 
 V. Vandervere, 5 Lans. 313. 
 
 78. Such contract is entire, and is also execu- 
 tory, and the title remains in the plaintiff until 
 they are ready for delivery and the quantity 
 ascertained. lb. 
 
 79. The vendor of a stock of goods, being en- 
 titled by the contract of sale to one-third of any 
 surplus they should bring on a re-sale over a 
 certain sum, wrote a note to the vendees, his 
 bankers, authorizing them to transfer his interest 
 in the fund to one K, in consideration that they 
 should credit his aocourit with $10,000. In- 
 closed in this was a letter from K, directing 
 them to charge his account and credit that of the- 
 vendor with a Uke amount ; but K had no funds 
 with such vendees, and no credit was trans- 
 ferred, nor did K procure or offer to procure 
 and place with them the amount stated, — Held, 
 that the crediting of the vendor's account was a 
 condition precedent to the transfer of his interest 
 in the fund and that no title passed. Rapallo, 
 J., dissents. Ct. App., 1872, Von Keller v. 
 Schulting, 50 N. Y. (5 Sick.) 108. 
 
 80. Goods to be manufactured. It is a 
 general rule, in case of a contract to manufac- 
 ture and then sell an article, that no property in 
 the material passes to the purchaser until the 
 article has been finished and delivered, or is 
 ready for delivery and is appropriated to the 
 benefit of, or set apart for, the purchaser, with 
 his assent, and accepted by him. Sup. Ct., 1868, 
 Halterline v. Rice, 62 Barb. 593. 
 
 81. Where a purchaser going into a shop and 
 finding there an unfinished cutter, bargained for 
 it to be finished and delivered to him within a 
 specified time, for a price which he afterward 
 paid, but the seller failed, leaving the cutter 
 unfinished, and his assignee sold it, — Held, that 
 the title to the cutter did not pass to the pur- 
 chaser, and he could not maintain an action 
 
 I against the assignee to recover its value. lb. 
 
SALE OF CHATTELS. 
 
 663 
 
 82. Under a contract to manufacture an 
 article out of materials to be furnished by the 
 manufacturer, no time or place of delivery or 
 payment being specified, the article is to be de- 
 livered at the place of manufacture when it is 
 finished, and notice thereof given to the pur- 
 chaser, and tlie title then passes to him subject 
 to the manufacturer's lien for the price, and the 
 latter is tlien entitled to tlie price and can main- 
 tain an action therefor. Sup. Ct., 1876, Higgins 
 V. Murray, 4 Hun, 565. 
 
 83. Acceptance. An offer by manufactur- 
 ers of gloves to manufacture and forward to cer- 
 tain raercliants specified quantities and qualities 
 of gloves, without agreement by tlie latter to 
 purchase tliem, is entire', and must be treated by 
 the latter as sucli, and if upon the receipt of 
 sucli gloves they open and examine them, mark- 
 ing the cost upon tliem, and detain them an un- 
 reasonable time witliout notifying the manu- 
 facturers of their determination not to buy, and 
 sell one or more pairs, they thereby make the 
 whole their own, and are liable therefor. Sup. 
 Ct., 1871, Babcock v. Hutchinson, 4 Lans. 276. 
 
 84. Where cloth is sold by sample, and the 
 purchasers not having sufficient opportunity to 
 examine it in the store of the seller, it is taken 
 to the store of tlie purchasers, under an agree- 
 ment that they shall examine it within one week, 
 and if satisfied as to quantity and qualitj', shall 
 give their notes for the price, and after examina- 
 tion they refuse it, they cannot be held as pur- 
 chasers, not having accepted or taken possession 
 of the goods as owners. Ct. App., 1872, Stone v. 
 Browning, 44 How. 131 ; S. C, 13 Abb. N. S. 188, 
 51 N. T. (6 Sick.) 211 ; Rev'g S. C, 49 Barb. 244. 
 
 85. On an executory contract of sale, where 
 there is no warranty express or implied, an ac- 
 ceptance of the article delivered after an exam- 
 ination or an opportunity tlierefor, is conclusive 
 upon the vendee of an assent upon his part, that 
 the property is of the quality contracted for, 
 and, in the absence of fraud, will prevent any 
 claim by him on account of its inferior quality 
 Ct. App., 1872, Dutchess Company v. Harding, 49 
 N. Y. (4 Sick.) 321. 
 
 86. But where examination is prevented, or 
 the acceptance induced by the fraud or artifice 
 of the vendor, then there is no acceptance, and 
 if the article is in fact inferior, the riglits of the 
 Tendee are unimpaired when discovery is 
 made.' lb. 
 
 87. In the absence of fraud or latent defects, 
 an acceptance of the article sold upon an execu- 
 tory contract after an opportunity to examine 
 it, is a consent and agreement that the quality is 
 satisfactory and conforms to the contract, and 
 bars all claim for compensation for any defects 
 that may exist in the article ; and the result is 
 the same whether the agreement as to quality is 
 implied or expressed. Ct. App,, 187.S, Gaylord 
 Manufacturing Co. v.' Allen, 53 N. Y. (8 Sick.) 515. 
 
 88. Acceptance of part of the goods contract- 
 ed for, after an opportunity to examine them, 
 does not bind the vendee to accept the whole, 
 nor relieve the vendor from liability for the non- 
 fulfilment of his contract in full. Sup. Ct., 1875, 
 Kipp V. Meyer, 5 Hun, 111. 
 
 89. Where a portion of the goods delivered 
 upon a contract of sale are made use of by the 
 vendee before discovery of the fact that they do 
 not conform to the contract, and the balance are 
 then laid aside and the vendor notified of the 
 defect, there is no such acceptance of the latter 
 portion as will bind the vendee to pay the con- 
 tract price. Com. App., 1874, Kellogg v. Murphy, 
 54N. Y. (9 Sick.) 685. 
 
 90. One in possession of certain lands agreed 
 to cut thereon 1,000 ties and deliver them to an- 
 other at 12 cents each, the latter to pay for 
 them as the work progressed and to have the 
 title as soon as the trees were severed from the 
 stump. After the most of the timber was felled, 
 but before it was cut up into ties, the vendor 
 pointed it out to the vendee with the remark, 
 " Here are your ties," and the latter said he 
 wished them inspected, and spoke of " culls," — 
 Held, that there was no acceptance sufficient to 
 pass the title, and that a levy upon such timber 
 in an execution against the vendor would hold 
 it as against the vendee. Ct. App., 1872, Ste- 
 phens v. Santee, 44 N. Y. (4 Sick.) 35 ; Rev'g 
 S. C, 51 Barb. 532. 
 
 91. Where a contract was made for the pur- 
 chase of whiskey, to be paid for on delivery and 
 inspection at a certain bonded warehouse, and a 
 partial payment was made on account, but, upon 
 delivery and inspection at the place specified, a 
 dispute arose as to the amount to be paid for, 
 and no further payment was made, nor any 
 actual delivery to the vendee, — Held, that no 
 title passed, and the vendor was not liable as for 
 a conversion for afterward selling the wlriskey. 
 N. Y. C. P., 1871, Fey v. Smith, 3 Daly, 386. 
 
 92. Where the vendor of a specified number 
 of bales of cotton, sold to conform to sample, 
 delivered to the vendee an order on a warehouse 
 therefor, who indorsed thereon a direction to 
 re-store on his"acc()unt, and a part were on the 
 following day weighed and put back after 
 samples taken, — Held, that the acceptance, so 
 far as it went, must be construed as conditional 
 upon delivery of the balance ; that the sam- 
 pling was not complete until the samples taken 
 were compared with the originals ; and the title 
 did not vest in the vendee to any part of the 
 cotton. Ct. App., 1873, Kein v. Tupper, 52 N. Y. 
 550 ; Rev'g 42 How. 437 ; 33 N. Y. Supr. 465. 
 
 ni. Rescission ; Stoppage in transitu. 
 
 93. Rescission. One who purchases a prom- 
 issory note, at the usual rate of discount for 
 notes of solvent persons, both parties to the sale 
 believing at the time that the makers are solv- 
 ent, is entitled to rescind the sale and recover 
 back the money paid, upon surrender of the 
 note, if he moves seasonably after discovery 
 that they are insolvent and the note wortliless. 
 N. Y. Supr. Ct., Stewart v. Orvis, 47 How. 518. 
 
 94. Where notes having the appearance of 
 business paper and represented as such to one 
 who purchased them at a discount in excess of 
 legal interest, proved to be, in fact, accommoda- 
 tion notes, and therefore void for usury in the 
 hands of sucli purchaser, — Held, that he had a 
 right to rescind the contract and recover back 
 the purchase money. Ct. App., 1872, Webb v. 
 Odell, 49 N. Y. (4 Sick.) 583. • 
 
 95. A purchaser of stock in a gas company 
 cannot rescind and refuse to pay therefor on the 
 ground that the company failed to carry out 
 their project by erecting gas works and manu- 
 facturing and seUing gas. Sup. Ct., 1872, Hold- 
 redge v. Webb, 64 Barb. 9. 
 
 96 Neither can he rescind on the ground of 
 false representations, when those which were 
 false were merely expressions of opinion upon 
 questions of law, or upon the probabilities of the 
 s,uccess of the company, the representations of 
 facts being true. lb. 
 
 97. As against a third person claiming under 
 a fraudulent vendee of goods, in an action for 
 conversion, it is not necessary for the vendor, in 
 
664 
 
 SALE OF CHATTELS. 
 
 order to establish a rescission, to show that he 
 has returned the securities received by him 
 upon tlie sale, so long as he refrains from assert 
 ing any title to such securities founded upon 
 the original contract. Ct. App., 1872, Kinney v. 
 Kiernan, 49 N. Y. (4 Sick.) 164 ; Eev'g S. C., 2 
 Lans. 492. 
 
 98. Where the vendor, on sale of a buggy, re- 
 ceived a promissory note in part payment and 
 the balance in cash, — jffeW, that a tender back 
 of the note alone would not amount to a rescis- 
 sion. Com. App., 1873, Scovil v. Wait, 54 N. Y. 
 (9 Sick.) 650. 
 
 99. Even if the tender of the note, in such 
 case, would be sufficient, the subsequent receipt 
 of payment thereon would destroy its effect. lb. 
 
 100. Revival after rescission. Where a 
 vendor, in a proper case, has once exercised a 
 valid option to avoid the sale, no subsequent act 
 of his can revive the contract, or give to him a 
 right of action thereon. Ct. App., 1872, Kinney v. 
 Kiernan, i^S.Y. (4 Sick.) 164; Rev'g S. C, 2 
 Lans. 492. 
 
 101. Stoppage in transitu. The right of a 
 vendor of goods to stop them, in case of the in- 
 solvency of the purcliaser occurring after the 
 sale, at any time before their delivery by the 
 carrier to such purchaser, cannot be extinguish- 
 ed liy the levy of an attachment on them by a 
 creditor of the purchaser. N. Y. C. P., 1871, 
 Clark V. Ci/nch, 4 Daly, 83. 
 
 102. Where no time is agreed upon for pay- 
 ment, the sale is to be considered as for cash, 
 and the payment and delivery are immediate 
 and concurrent acts, and the vendor may refuse 
 to deUver witliout payment, and, if payment is 
 not made immediately upon delivery, may treat 
 tlie contract as void and reclaim the property. 
 N. Y. Supr.Ct., 1874, Osborn v. Ganiz, 38 N. Y. 
 Supr. (6 J. & Sp.) 148 ; Aff'd, S. C, 60 N. Y. (15 
 Sick.) 540. 
 
 103. Under a contract for the sale of goods 
 payable by gold note at 90 days, the deUvery of 
 the goods and the giving of the gold note are 
 concurrent acts ; and if such note is not given 
 upon delivery of the goods, the delivery is con- 
 ditional and does not pass the title, unless the 
 condition is waived. lb. 
 
 104. It is not necessary that any qualification 
 or condition of delivery, which would arise from 
 the contract and attach thereto, should be assert- 
 ed in express terms by the vendor at the time of 
 the delivery, in order to prevent a waiver. lb. 
 
 105. The question whether the delivery was 
 absolute must be determined by the intent of 
 the parties, and it will be held conditional if that 
 intent can be inferred from their acts and the 
 circumstances of the case. lb. 
 
 106. Where the sellers sent several biHs of 
 the goods, containing the terms, gold note at 90 
 days, and giving the weight and amount, the 
 last being sent immediately after all objections 
 to the goods made by the purchasers had been 
 obviated, and on each occasion demanded the 
 gold note, which was refused, — Held, that they 
 had not waived the condition, but might reclaim 
 the goods. lb. 
 
 107. To bar the right of a vendor of goods to 
 reclaim them for fraud, within a reasonable 
 time, three things must concur. 1. He must have 
 parted with the possession with intent to pass 
 the title to the wrong-doer. 2. A third party 
 must have acquired title without notice, actual 
 or constructive, of the defects in the title of his 
 vendor. 3. Such third party must have parted 
 with value upon the faith of the apparent title 
 of the wrong-doer and his right to dispose of the 
 
 property. Ct. App., 1874, Barnard v. Campbell, 
 68 N. Y. (13 Sick.) 73. 
 
 108. One to whom the fraudulent vendee de- 
 livers the goods in pursuance of a previous con- 
 tract of sale, not made upon the faith of such 
 apparent title, cannot, although value was paid 
 at the time of the contract, hold them as again8^ 
 the vendor. lb. 
 
 109. A sale and delivery of a sewing machine 
 to be paid for in instalments, upon the express 
 condition that the vendors retain the title until 
 payment is completed, passes no interest in the 
 machine until tlie last instalment is paid either 
 to the vendee or to a bona fide purchaser from 
 him ; and, upon default, the vendors may retake 
 their property wherever found, and in so doing 
 may resort to any means short of an actual 
 breach of the peace. N. Y. C. P., 1869, Kenny v. 
 Planer, 3 Daly, 131. 
 
 110. When right abandoned. A vendor, 
 who, after parting with his goods to a fraudulent 
 vendee, by whom they have been transferred 
 with other property in trust for the payment of 
 antecedent debts, and upon discovery of the fraud 
 accepts as security for the purchase money a 
 written assignment of the vendee's claim to any 
 surplus remaining after payment of the debts, 
 thereby unequivocally affirms the sale and sub- 
 sequent transfer, and abandons the right to re- 
 claim the goods ; and the insertion in the assign- 
 ment of a clause declaring that the acceptance 
 thereof shall not preclude the vendor from claim- 
 ing and commencing proceedings to recover the 
 goods, does not change the nature of the trans- 
 action, but such clause, being repugnant to the 
 other parts of the instrument, is Inoperative. Ct. 
 App., 1873, Joslin v. Cawee, 52 N. Y. (7 Sick.) 
 90 ; Rev'g S C, 60 Barb. 48. 
 
 111. Such an arrangement made by the factors 
 of the vendor, by whom the sale was made, is 
 binding upon him. lb. 
 
 IV. Wakkantt. 
 
 112. In general. Representations or affirma- 
 tions concerning property sold, to constitute a 
 warranty, must be made during the negotiations 
 for the sale, or at the time of it, or, at least, be- 
 fore performance of the substantial terms there- 
 of. Sup. Ct., 1863, Shull V. Ostrander, 63 Barb. 
 130. 
 
 113. If a party who has exchanged horsies with 
 another, rescinds that contract and returns the 
 horse received by him, and then makes a new 
 bargain by which he purchases such horse for a 
 specified sum of money, he cannot set up the rep- 
 resentations or warranties made by the defend- 
 ant on the first bargain as forming a part of the 
 second, or their falseness as a defense to an ac- 
 tion for the price. lb. 
 
 114. Express. A positive affirmation as to 
 the character oiE an article, made by the vendor 
 and understood and relied on as such by the 
 vendee, is an express warranty. Ct. App., 1872, 
 Hawkins v. Pemberton, 44 How. 102 ; S. C, 51 N. 
 Y. (6 Sick.) 198 ; Rev'g S. C, 6 Rob. 42 ; 35 How. 
 376. 
 
 115. There is no distinction in principle be- 
 tween a representation as to the quality and con- 
 dition of an article or one as to its character, in 
 respect to its constituting a warranty. lb. 
 
 116. A statement by an auctioneer at the time 
 of sale, " here are 25 barrels of blue vitriol, sound 
 and in good order," is a warranty not only of the 
 quality of the article, but that it is " blue vitrioL" 
 lb. 
 
 117. A representation, on a sale of goods by 
 
SALE OF CHATTELS. 
 
 665 
 
 Bample, that the bulk of the commodity sold is 
 equal in quality to the sample exhibited, amounts 
 to an express warranty of that fact by the ven- 
 dor. N. Y. C. p., 1872, Murray v. Smith, 4 Daly, 
 277. 
 
 118. Conditional. Where a vendor of a 
 horse having a bunch on its leg, warrants the leg 
 to get all right or he will make it right, at the 
 same time directing how the leg shall be treated, 
 that amounts to a qualified warranty as to the 
 leg, conditioned upon its being treated according 
 to directions, and the purchaser is justified in 
 refusing to try any other treatment. Sup. Ct., 
 1871, Smith v. Borst, 63 Barb. 57. 
 
 119. Implied. A nurseryman who sells and 
 delivers fruit trees to a customer as being of the 
 kind called for by him, impliedly warrants that 
 they are of the kind known by that name ; and 
 such warranty is broken immediately if the trees 
 are not of that kind, and the statute of limita- 
 tions then begins to run. If the warranty had 
 been that they would bear that kind of fruit, it 
 would not be broken until they bore fruit of a 
 different kind. Sup. Ct. 1872, Allen v. Todd, 6 
 Lans. 222. 
 
 120. Where a sale is made by sample, and 
 there are no circumstances to qualify the trans- 
 action, each package of the article sold must 
 correspond in quality with the sample exhibited, 
 but where different varieties and qualities of an 
 article are sold in mass, and the sample is made 
 by mixing proportional quantities of each variety 
 or quality, all that is implied is that the whole 
 amount sold, when mingled together shall cor- 
 respond with such sample ; and it is no breach, 
 if that be the case, that some of the packages 
 are inferior to the sample. Com. App., 1871, 
 Leonard v. Fowler, 44 N. Y. (5 Hand,) 289. 
 
 121. Upon a sale of merchandise to arrive, 
 which the vendor has not in hand and which 
 neither party has an opportunity of inspecting, 
 there is an implied contract that tlie article shall 
 be merchantable. N. Y. Supr. Ct., 1872, New- 
 berry V. Wall, 36 N. Y. Supr. (3 J. & Sp.) 106. 
 
 122. No warranty of quality is implied upon a 
 contract to furnish slops from a distillery. Sup. 
 Ct., 1871, Holden v. Clancy, 41 How. 1 ; S. C, 
 58 Barb. 590. See Dig. vol. 4 p. 689. 
 
 123. Upon the sale and assignment of a non- 
 negotiable written instrument, such as a bond 
 which is incomplete because conditioned for the 
 payment of either of two specified kinds and 
 amounts of national currency according to the 
 place which shall be fixed for their payment, 
 which is left undetermined, there is an implied 
 warranty of title, and the vendor is liable in case 
 of failure of title. Ct. App., 1873, Ledwich v. 
 McKim, 53 N. Y. (8 Sick.) 307 ; AfE'g S. C, 35 
 N. Y. Supr. (3 J. & Sp.) 304. 
 
 124. — on sale for particular use. It is only 
 where an article is contracted for to be applied 
 to a particular purpose, and in such a manner 
 that the buyer necessarily trusts to the judgment 
 or skill of the manufacturer or dealer, and not 
 to his own, that there is an implied warranty of 
 fitness for that purpose. N. Y. Supr. Ct., Sp. T., 
 1871, Charlotte, Columbia ^ Augusta R. R. Co. y. 
 Jesup, 44 How. 447. 
 
 126. A warranty, upon a sal6 of steel, for axes, 
 by the manufacturers of cast steel to an " Axe 
 and Tool Company," that it is equal to the best 
 English brand, implies that it is equal to such 
 best English brand for the manufacture of axes. 
 Sup. Ct., 1871, Park v. Moms Axe and Tool Co., 
 41 How. 18 ; S. C, 4 Lans. 103 ; 60 Barb. 140, 
 
 126. Upon such a sale to a company named an 
 "Axe and Tool Company," the name of the 
 
 purchaser is notice to the vendor of the use to 
 which the steel is to be applied, and makes the 
 warranty apply to such use. lb. 
 
 127. Abrogated by subsequent agree- 
 ment. Where goods are sold with warranty as 
 to quality and also as to their fitness for a partic- 
 ular purpose, the latter of which could be dis- 
 covered only after use, an agreement by the 
 vendor, after delivery and inspection but before 
 use, to an abatement of the purchase price on 
 account of the poor quality of the goods, in ef- 
 fect abrogates the first warranty, but does not 
 affect the second ; and the vendee may have his 
 remedy for breach of the latter when discovered. 
 N. Y. C. P., 1872, Murray v. Smith, 4 Daly, 277. 
 
 128. Waiver of defects. Where engravers 
 presses, warranted on sale to do the vendee's 
 work without breaking, were accepted and paid 
 for by him, but were subsequently broken while 
 being used in his business, — Held, that his ac- 
 ceptance and retention of the presses did not bar 
 his right to claim damages upon the warranty. 
 Ct. App., 1872, Conor v. Dempsey, 49 N. Y. (4 
 Sick.) 666. 
 
 129. Remedy for breach. A vendee of 
 goods, sold with warranty, is not obliged to re- 
 turn them within a reasonable time after breach ; 
 but he may retain them and sue for his dam- 
 ages, or recoup the same in an action for the 
 price. N. Y. C. P., 1872, Murray v. SmithT^ 
 Daly, 277. S. P., Foot v. Bentley, 44 N. Y. (6 
 Hand,) 166. 
 
 130. In case of an executory contract, a war- 
 ranty may exist when the defect in the property 
 is incapable of discovery at the time of delivery ; 
 and, in such a case, the purchaser may retain 
 the property and sue upon the warranty. If the 
 defect is open, visible and notorious at the time 
 of delivery, the purchaser must refuse to receive 
 the property as a compliance with the contract, 
 or he will waive his right to damages. Sup. Ct, 
 1875, Brown v. Burhans, 4 Hun, 227. 
 
 131. There may be a warranty accompanying 
 an executory contract of sale, where it relates, 
 not to the external character of the article sold, 
 but to its intrinsic quality, not the subject of the 
 direct and immediate observation of the senses ; 
 and in order to enable the vendee to recover 
 thereon, it is not necessary that he should first 
 return or offer to return the property, that being 
 necessary only in case of a rescission of the con- 
 tract. Com. App., 1874, Parks v. Morris Axe and 
 Tool Co., 64 N. Y. (9 Sick.) 686. 
 
 132. Where there 'is an express warranty, 
 whether in an executed or an executory sale, the 
 purchaser is not bound to return the property 
 upon discovering the breach, even if he have the 
 right to do so ; but he may retain and use it, and 
 have his remedy on the warranty. He cannot, 
 however, rely upon the warranty as to defects 
 which are open and visible. Chuech, Allen 
 and Andrews, JJ., dissent. Ct. App., 1873, Day 
 V. Pool, 52 N. Y. (7 Sick.) 416; Aff'g S. C, 63 
 Barb. 506. 
 
 133. A purchaser of personal property to be 
 delivered at a future day may, therefore, relieve 
 himself from the necessity of returning it on dis- 
 covering that it is not of the quality agreed 
 upon, by an express contract to that effect, or by 
 taking an express warranty that it shall be of 
 the quality desired. lb. 
 
 134. Where a manufacturer of wine, on con- 
 tracting for tlie purchase of rook candy syrup, 
 to be used in such manufacture, observed to the 
 agent of the seller that in some syrups he had 
 seen sugar would fall down and some would 
 crystallize, to which the agent replied, "Our 
 
666 
 
 SALE OF CHATTELS. 
 
 syrup will not crystallize, nor sugar fall down. 
 I warrant our syrup all right," — Held, that there 
 was an express warranty of the kind and quality 
 of the syrup, and the purchaser might use the 
 syrup and rely upon the warranty. lb. 
 
 185. The vendee in an executory contract of 
 sale, with warranty as to the quality of the arti- 
 cle contracted for, is not bound to test it as to 
 quality before using it, but if he afterward dis- 
 covers defects not open and visible to inspection, 
 he may still retain and use the property and 
 have his remedy on the warranty. Com. App., 
 1874, Bounce v. Dow, 57 N. Y. (12 Sick.) 16. 
 
 136. In a contract for the sale and delivery of 
 a quantity of XX pipe iron, agreed by the seller 
 to be of a quality suitable and proper for use in 
 the purchaser's manufacturing business, such 
 agreement as to quality is a warranty, and if 
 iron apparently of the quality called for, but in 
 fact brittle and worthless, is delivered to and 
 received and used by the purchaser without first 
 testing it, he may still set up his damages for the 
 breach of warranty afterward discovered as a 
 counterclaim, in an action for the purchase price, 
 lb. 
 
 137. Where a purchaser in negotiating for 
 flour, said he wanted none but good flour, 
 and the seller said he would warrant the flour 
 in question to be good family flour, and there- 
 upon the order for it was given, — Held, that 
 it was an executory sale with warranty, and-up- 
 on the discovery of the, breach the purchaser 
 could maintain an action for the damages. Sup. 
 Ct., 1875, Quinn v. Weed, 5 Hun, 350. 
 
 138. An agreement " to make and finish, in a 
 good and workmanlike manner, and erect in the 
 J cemetery, a granite monument, to be made 
 from good Quincy^ granite, and to be of as good 
 quality of granite as the monument of S C now 
 standing in said cemetery," is an agreement not 
 only as to the model or sample as to form and 
 size, but also as to the quality of the granite, 
 and is a warranty as to those particulars. Sup. 
 Ct., 1868, Wells V. Selwood, 61 Barb. 238. 
 
 139. Payment of the contract price, after the 
 erection of the monument, although strong evi- 
 dence of acceptance, may he explained ; and 
 proof that it was induced by false representa- 
 tions of the vendor, is sufiicient to explain it. lb. 
 
 ' 140. Delay in bringing suit, though tending to 
 prove delivery and acceptance, is not conclusive ; 
 and proof that the falsehood of the representa- 
 tion grew more apparent by the lapse of time, is 
 sufiicient to excuse the del9y. lb. 
 
 141. In case of a breach of warranty, the pur- 
 chaser has no right to return the goods, unless 
 such right is reserved in the contract ; but he 
 may bring his action at once, founding it upon 
 the breach, without returning the goods. 
 
 142. The acceptance of the article on deliv- 
 ery, and the continuing in the possession and use 
 of it, without notice of its defects, raises a pre- 
 sumption against the purchaser, that he has ac- 
 cepted or waived the objection. lb. 
 
 143. Where the subject of the sale is ponder- 
 ous in its nature, such as a monument or a build- 
 ing, and becomes a part of the realty, the pur- 
 chaser is not bound to return it, on discovery of 
 its defects, or give notice to the builder to take 
 it away. lb. 
 
 144. In an action upon a note given for prop- 
 erty sold, if the vendee has retained the property 
 and not offered to return it, he can set up the 
 defense of breach of warranty and fraud only 
 by way of counterclaim, and in reduction of the 
 amount due on the note, and not as an absolute 
 bar. Sup. Ct, 1874, Hopkins v. Law, 2 Hun, 38. 
 
 V. Rights of pakties. 
 
 145. Action for price. A sale of 119 bales 
 of cotton at a certain price per pound, is an en- 
 tire contract, and no action accrues for the price 
 until delivery of the whole. Ct. App., 1873, Kein 
 V. Tupper, 52 N. Y. (7 Sick.) 650 ; Bev'g S. C, 
 42 How. 437 ; 83 N. Y. Supr. 465. 
 
 146. The destruction of the cotton without the 
 fault of the seller, after some of it had been 
 weighed and samples taken to be compared with 
 those on which it was sold, will not enable the 
 seller to collect the price of such portion. lb. 
 
 147. The delivery of goods sold without the 
 receipt of the note agreed to be given in pay- 
 ment, does not change the terms of the contract, 
 but the vendor on demand of such note and re- 
 fusal to give it, can maintain an action for imme- 
 diate payment. Sup. Ct., 1872, Smith v. Milliken, 
 7 Lans. 336. 
 
 148. Condition precedent, failure to per- 
 form. In a sale of 100 tons of coal, to be taken 
 away in October following, and if the purchaser 
 fails to take it away, the vendor to have the op- 
 tion to discontinue furtlier delivery and to retain 
 the earnest money paid on the day of sale, or to 
 resell the coal on account of tlie purchaser and 
 at his risk, the stipulation as to time of taking 
 away the coal is to be deemed of the essence of 
 the contract, and a condition precedent to be 
 observed by the purchaser in order to entitle 
 him to enforce it, and if he fails for four months 
 after that time to take away or demand the coal, 
 he cannot maintain an action therefor. Ct. App., 
 1875, Higgins v. Del., Lack. ^ West. R. R. Co., 60 
 N. Y. (15 Sick.) 553. 
 
 149. The vendor, in such a case, is not limited 
 to the remedies prescribed by the contract, but 
 he has also the legal right to hold himself ab- 
 solved from his obligation, as in other cases 
 where a contracting party fails to perform a 
 condition precedent. lb. 
 
 150. Defect in quality. One who purchases 
 goods to arrive, without any opportunity to in- 
 spect them, may refuse to accept them if on 
 inspection they prove to be unmerchantable. N. 
 Y. Supr. Ct., 1872, Newberry v. Wall, 35 N. Y. 
 Supr. (3 J. & Sp.) 106. 
 
 151. Where a vendor sells a specific article, 
 then in his possession, as sound, the representa- 
 tion may amount to a warranty ; but where he 
 makes an executory contract to sell a quantity 
 of any goods, which are to be sound in quality, 
 the remedy of the purchaser is to refuse to accept 
 on delivery, if the goods offered are unsound, 
 or, if he discovers the defect afterward, to 
 rescind the contract and return the goods. He 
 cannot accept and retain the goods, and after- 
 ward maintain an action for the defects, unless 
 there is a warranty. Sup. Ct., 1872, Lawhon v. 
 Keil, 61 Barb. 558. 
 
 152. Where a vendor of corn had purchased a 
 quantity fro.m a third party as sound corn, but 
 had not got it in possession, and so stated to the 
 purchaser, adding that he would sell it as sound, 
 — Held, tliat this was not a warranty, but a 
 mere representation of his belief. lb. 
 
 153. An executory contract for the sale and 
 delivery of good? to be manufactured, and to 
 correspond in all respects with a sample furnish- 
 ed, binds the vendor to supply an article equal 
 to such sample in respect of manufacture, ma- 
 terial, description, quality, and fitness and dur- 
 ability for the use for which they, are designed. 
 Ct. App., 1874, Gurney v. Atlantic ^ Great 
 Western Ry. Co., 58 N. Y. (18 Sick.) 358. 
 
 154. When defects in the articles delivered 
 
SALE OF CHATTELS. 
 
 667 
 
 can tinly be discovered by use, the vendee is not 
 concluded by an acceptance of them, nor is he 
 bound, on discovery, to rescind the sale and re- 
 turn or offer to return them ; but he may retain 
 the articles and recover or recoup his damages. 
 Groyes, J., dissents. lb. 
 
 165. One who accepts and pays for grape roots 
 delivered to him in bundles and 'covered with 
 wrappers, under an executory contract of sale, 
 without examination as to their condition, is not 
 thereby precluded from recovering back the 
 money paid, on their proving dead and worth- 
 less, if he was prevented from examining them 
 by the objections and representations of the 
 agent of the vendor. Sup. Ct., 1872, Stone v. 
 Frost, 6 Lans. 440. 
 
 156. If such roots were dead and of no value 
 whatever when delivered, it would not place the 
 vendor in any better position to return them, 
 and therefore, it seems, the purchaser need not 
 return or offer to return them before bringing 
 such suit. lb. 
 
 157. But, if a notice or offer to return was 
 necessary, a letter written by the purchaser to 
 the person who acted as the vendor's agent in 
 making the sale and delivery, soon after such 
 delivery, notifying him that the roots .were dead 
 and worthless, and requesting him to take them 
 away and pay back the money, or if he would 
 not, to lay such letter before the vendor, which 
 was, in compliance with the request, transmitted 
 to the vendor and answered by him with a re- 
 fusal to comply with the purchaser's demand, 
 was a sufficient offer to return to enable the 
 purchaser to maintain an action for such pur- 
 chase money. lb. 
 
 168. Non-conformity to contract. If, 
 upon delivery of a steam boiler, contracted to 
 to be manufactured according to specifications, 
 which apparently conforms to the contract, the 
 vendee receives it and, without attempting to 
 test it, builds it into his boat for immediate use 
 in such a manner that a removal would cause 
 great injury to the boat, and does not offer to 
 return it, or notify the vendor to take it back, 
 on discovering by the application of tests that 
 it varies materially from the specifications, 
 cannot show, as a defense to a note given in part 
 payment of the price, the inferiority and unsuit- 
 ableness of the boiler by reason of such varia- 
 tion. Sup. Ct., 1871, Neaffie v. Hart, 4 Lans. 4. 
 
 159. The party accepting cannot excuse his 
 neglect to test the boiler at the time of the 
 delivery, on the ground that such examina- 
 tion would then have been attended with 
 great inconvenience and difficulty, unless it 
 was altogether impracticable. If it cannot be 
 made at the time of delivery, it must be made 
 at the earliest practicable opportunity afterward, 
 and the offer or notice must then be given, if 
 the article is then found defective. lb. 
 
 160. In executory contracts for the sale of 
 chattels, the buyer, if he deems the article 
 delivered not the one contracted for, must re- 
 turn it to the vendor or notify him of the objec- 
 tion and offer to return it ; and if, on the con- 
 trary, he retains it after opportunity to ascertain 
 the defect, that is an admission that the contract 
 has been performed, and he cannot afterward 
 claim damages. Com. App., 1872, Beck v. 
 Sheldon. 48 N. Y. (3 Sibk.) 365. 
 
 161. If the purchaser of all the lumber at a 
 certain place, tlie quantity of each of three dif- 
 ferent grades composing it to be ascertained and 
 paid for at specified rates, after examination, or 
 an opportunity therefor, accepts certain quanti- 
 ties as being of each grade, he cannot aTterward, 
 
 in an action for the price, claim that the lumber 
 accepted as of one grade was of an inferior grade 
 or quality. Ct. App., 1871, McCormick v. Garson, 
 46 N: Y. (6 Hand,) 265. 
 
 162. Failure of title. A vendee of chattels 
 is not bound to rescind the contract m toto for 
 a failure of title to part of the property, but 
 may retain so much of the property as he has 
 secured a title to, and at his election recoup his 
 damages in an action for the purchase price, or 
 maintain an independent action therefor. Ct. 
 App., 1873, McKnight v. Devlin, 62 N. Y. (7 
 Sick.) 399. 
 
 163. Such right of recoupment is not defeated 
 by a transfer of the claim, except in the single 
 case of negotiable paper, where the transferee 
 bringing action is a bona fide holder. lb. 
 
 164. Fraud. A person who sells a horse re- 
 presenting and warranting him to be sound, but 
 at the same time disclosing the fact that there 
 had been a previous unsoundness, is not liable 
 for fraud on the sale, if he told the whole truth 
 in regard to the condition of the horse. Sup. 
 Ct., 1862, Howell v. Biddlecom, 62 Barb. 131. 
 
 165. Mere silence as to defects in the property, 
 which are known to the seller, and unknown to 
 the buyer, does not constitute a legal fraud ; 
 but if by acts or words the seller leads the buyer 
 astray, inducing him to suppose that he is buy- 
 ing with a warranty, or otherwise preventing 
 his examination or inquiry, that is a fraud of 
 which the law will take cognizance. lb. 
 
 166. If the purchaser of ahorse does not trust 
 to the representations of the seller, but, before 
 consummating the trade, takes a man of skill 
 with him to examine the horse, and acts upon 
 his conclusions after the seller has disclosed the 
 defects known to him, he has no remedy against 
 the latter for an alleged fraud on the sale. lb. 
 
 167. Non-delivery. A letter, written by 
 the assignees of the vendee of a contract for 
 the sale of oil to the vendor, before the day for 
 the delivery of the oil, to the effect that, unless 
 the latter sends them word at once that he will 
 deliver it according to contract, they will pur- 
 chase elsewhere, followed by a subsequent 
 letter stating that they had purchased the oil 
 elsewhere in pursuance of their previous letter, 
 do not operate as a release or waiver of atle- 
 livery under the contract, on demand and offer 
 of payment upon the day fixed for the delivery, 
 where it does not appear that the vendor has 
 been misled, or has in any manner acted upon 
 or been governed by those letters. N. Y. Supr. 
 Ct., 1873, Westlake v. Bostwick, 36 N. Y. Supr. 
 (3 J. & Sp.) 256., 
 
 168. Upon an agreement for the sale and 
 delivery of specific articles of personal property, 
 under circumstances where the title does not 
 •vest in the vendee, if the property is destroyed 
 by an accidental fire before delivery, without 
 the fault of the seller, the latter is not liable for 
 damages sustained by the purchaser by reason 
 of the non-delivery. Ct. App., 1871, Dexter v. 
 Norton, 47N. Y. (2 Sick.) 62; Aff'g S. C, 55 
 Barb. 272. 
 
 169. Under a contract for the sale and delivery 
 of a certain number of thousand of brick, within 
 a time specified, at so much per thousand de- 
 livered, the delivery of the entire quantity is a 
 condition precedent to the right of the seller to 
 demand payment for any part. The fact, there- 
 fore, that when delivery was discontinued, the 
 brick already delivered had not been paid for, 
 would not excuse delivery of the residue. Ct. 
 App., 1872, Mount V. Li/on, 49 N. Y. (4 Sick.) 562. 
 
 170. To entitle the purchaser imder such a 
 
668 
 
 SALE OF CHATTELS. 
 
 contract to Bue for a breach, it is not necessary 
 that he should first make a formal demand of 
 the brick and tender pay therefor at the place 
 of delirery, but it is enough that he is ready to 
 accept and pay. Neither is it necessary that he 
 should haTe during the whole time fixed for de- 
 livery, or on any day during that time, a sum 
 of money in hand sufficient to pay for all tlie 
 brick, but it is sufficient that he has the means 
 and resources at his command which will enable 
 him to pay on delivery. lb. 
 
 171. Under a contract for the sale of a quan- 
 tity of coal to be delivered within a month 
 named, on boats to be furnished by the vendee, 
 the latter is bo,und to have his boats at the places 
 where coal is usually shipped or delivered by 
 the vendor, and if he fails to do so, that is a 
 good defense to an aetion for non-delivery, unless 
 the vendor in some manner prevented him ; and 
 the fact that other boats were there in the or- 
 dinary course of business to receive coal, so that 
 his boats could not approach the place of de- 
 livery, is not such a prevention by the vendor 
 as to make him liable for the non-delivery. Ct. 
 App., 1872, Read v. Prest., etc. of Del. i^ Bud. 
 Canal Co., 49 N. Y. (4 Sick.) 652 ; Eev'g S. C, 
 S Lans. 213. 
 
 172. A vendor is not liable for a failure to 
 deliver the goods contracted to be sold, to be 
 paid for on delivery, unless the purchaser was 
 in a situation to perform at the time fixed there- 
 for. N. Y. Supr. Ct., 1873, Goodrich v. Sweeny, 
 86 N. Y. Supr. (4 J. & Sp.) 320. 
 
 173. It is not necessary that he should produce 
 and tender the money, but if he does not, but 
 merely offers to pay .on delivery, he must, 
 in an action on the contract, show that he was 
 ready and able to pay. lb. 
 
 174. A statement by the vendor, before the 
 expiration of the time for performance by him, 
 that he could not get the goods, furnishes no 
 excuse for the failure of the purchaser to be 
 ready or to offer performance. lb. 
 
 175. Non acceptance. In case of a cash 
 sale, if the purchaser refuses to fulfil the con- 
 tract on his part, after tender of the property by 
 the seller, and the lapse of a reasonable time in 
 which to accept and pay for it, the seller may 
 resell the property as his own, and apply the 
 proceeds to his own use. By so doing he will 
 abandon all right of action against the purchaser, 
 and the latter will have none against him, even 
 to recover back purchase money paid. Sup. Ct., 
 1872, West/all v. Peacock, 63 Barb. 209. 
 
 176. Or the seller may retain the property as 
 his security, and sue the purdiaser for the con- 
 tract price ; in which case, after payment is 
 enforced and complete, the purchaser is entitled 
 to the property. lb. 
 
 177. Or the seller may resell the property, 
 upon giving notice to the purchaser of his in- 
 tention so to do, and after applying the net pro- 
 ceeds towards payment of the contract price, 
 may sue the purchaser for any balance remain- 
 ing unpaid ; or, if there is a surplus, he must 
 account to him therefor. lb. 
 
 178. Upon a valid tender, under an executory 
 contract for the sale of specific articles, the right 
 of property passes to the vendee, at whose risk 
 it is retained by the vendor. On the refusal of 
 the vendee to accept and pay the price, the ven- 
 dor, upon proper notice, may sell the property 
 and recover the difference, or he may sue for 
 the difference between the contract and actual 
 price, in which case he elects to retain the prop- 
 erty as his own, or he may sue for and recover 
 the contract price, in which case he holds the 
 
 property as trustee for the vendee, and is bound 
 to deliver it, whenever demanded, upon receiving 
 payment of the price. Ct. App., 1873, Hayden 
 V. Demets, 53 N. Y. (8 Sick.) 426 ; Afi'g S. C., 34 
 N. Y. Supr. (2 J. & Sp.) 344. 
 
 179. If a purchaser of chattels under an exec- 
 utory contract refuses to receive the same, the 
 vendor has the right either to tender the prop- 
 erty and sue for and recover the contract price, 
 or to retain the property as his own and sue for 
 and recover the difference between tlie contract 
 price and the market value at the time fixed for 
 delivery ; and the vendor is entitled to the bene- 
 fit of any subsequent rise in the value of the 
 property. Ct. App., 1875, Bridafard v. Crocker, 
 60 N. Y. (15 Sick.) 627. 
 
 180. The vendor of goods, upon refusal of the 
 vendee to accept - them, has a right, after due 
 notice to the latter, to sell the same at public 
 auction, although they may be goods not usually 
 sold in that way, and recover the difference be- 
 tween the amount received and the contract 
 price, from such vendee. N. Y. C. P., 1871, 
 Passaic Manufacturing Company v. Hoffman, 8 
 Daly, 495. 
 
 181. The vendor of goods, on refusal of his 
 vendee to receive and pay for them, has an 
 equitable lien thereon for his damages, and a 
 right to sell them and apply the proceeds, so far 
 as they go, to satisfy the lien. And the place 
 of sale is not necessarily restricted to the place 
 where, by the contract, tfip vendee was bound 
 to receive the property, 'Gut the vendor should 
 be permitted to exercise a reasonable discretion 
 as to the place of sale, and to exercise it within 
 a reasonable time. Com. App., 1872, Lewis v. 
 Greider, 51 N. Y. (6 Sick.) 231; Affi'g 49 Barb. 
 606. 
 
 182. Such vendor may properly insure the 
 property and charge the premiums to the ven- 
 dee, lb. 
 
 183. The sale will be valid, if made for the 
 vendee though not conducted in his name. lb. 
 
 184. Notice to one of three joint pur- 
 chasers of property of the quality and condi- 
 tion tliereof, must be deemed the knowledge of 
 all. Sup. Ct., 1874, Hopkins v. Lane, 2 Hun, 38. 
 
 185. Sale of stock, seller's option. On a 
 sale of stock, deliverable at seller's option within 
 a specified time, interest to be paid on the pur- 
 chase-money to time of delivery, the purchaser 
 takes title at once and becomes entitled, there- 
 fore, to any dividends accruing between the time 
 of sale and the time of delivery. Ct. App., 1871, 
 Currie V. White, 46 N. Y. (6 Hand,) 822 ; Eev'g 
 S. C, 1 Sweeny, 166 ; 7 Eob. 637. 
 
 188. Where, before delivery, the capital stock 
 of the corporation is increased and a right to 
 new stock attaches to that sold upon a certain 
 deposit being made, the purchaser cannot claim 
 the benefit'of such new stock unless he f urnislies 
 the seller funds to make the required deposit, 
 the latter not being obliged to advance his own 
 funds for that purpose. lb, 
 
 187. Such purchaser, making separate de- 
 mands for the stock sold with its accrued divi- 
 dends, and for the new stock, may recover the 
 former in an action brought for both, though 
 not entitled to the latter. lb. 
 
 188. Delivery and pay mentbeing simultaneous 
 acts, no tender of the money is necessary before 
 action. An offer of payment, followed by a 
 refusal to deliver, or a neglect to offer delivery, 
 is sufficient. lb. 
 
 189. Sale to arrive. Under a contract for 
 the sale of " about 1,000 bales of cloves, to ar- 
 rive, — deliverable sound and in good order," the 
 
SARATOGA— SEAMEN. 
 
 669 
 
 purchaser cannot be rec[iiired to receive dam- 
 aged cloves ; but he may waive the objection 
 that a part are unsound, and if he does so, by 
 offering to receive the whole invoice and pay 
 the agreed price, the seller is bound to deliver 
 them, and is liable for all damages sustained by 
 reason of his refusal to do so. Sup. Ct., 1872, 
 Townsend v. Shepard, 64 Barb. 39. 
 
 190. Such a contract is not a warranty that 
 the cloves shall arrive sound and in good order ; 
 nor is it an agreement that the vendor will de- 
 liver 1,000 bales of cloves, " sound or in good 
 order." lb. 
 
 191. — on trial. One who buys a machine 
 upon the condition, that, if it does not work 
 ■well, he need not keep nor pay for it, is entitled 
 to use it on trial only for a reasonable time. 
 Sup. Ct., 1874, Moore v. Pickard, 1 Hun, 608. 
 
 192. Where defendant purchased a combined 
 reaper and mower on such a condition, and used 
 it one season, finding it to work well as a mower, 
 but not as a reaper, and then had it repaired on 
 the same condition, and used it a second season, 
 nearly wearing it out as a mower, — ^eW,'that 
 he had kept it an unreasonable time, and was 
 clearly liable for it as a mower ; and it miglit be 
 presumed that he had accepted the whole ma- 
 chine, lb. 
 
 193. Sale through broker. Where, upon 
 application of a broker, claiming to act for a 
 person named, for the piirchase of certain goods, 
 the vendor agreed to sell on a credit, made out 
 an invoice running from himself to tlie pur- 
 chaser named, and delivered it to the broker, 
 and sent the goods by his own carman to the 
 purchaser, whose clerk gave a receipt for them 
 as coming from such vendor, — Beld, that the 
 vendor had not invested the broker with any 
 evidence of title, nor put it in his power to de- 
 ceive the purchaser and . induce him to believe 
 that they were the broker's propertj', and that 
 he could recover of such purchaser the price of 
 the goods, notwithstanding tlie broker had 
 fraudulently made out a bill therefor in his own 
 name, and received the full value from the pur- 
 chaser. Sup. Ct., 1874, Bassett v. Lederer, 1 Hun, 
 274. S. P., Gallup V. Lederer, 1 Hun, 282. 
 
 194. The purchaser, in such a case, was charge- 
 able with the negligence of his servant in not 
 noticing the statement in the receipt of tlie per- 
 son from whom the goods were received, and 
 should bear the consequences. lb. 
 
 195. The facts that the person transacting the 
 business was known to the purchaser to be a 
 broker, and that he came to make the sale with- 
 out having possession of the goods, as brokers 
 ordinarily do in making sales, was sufficient to 
 charge him with notice that he was then propos- 
 ing a sale in that capacity ; and the fact that lie 
 represented himself to be the owner cannot 
 protect the purchaser. lb. 
 
 SAEATOGA. 
 
 Village charter amended, ch. 760, Laws of 1871 ; 
 ch. 257, Laws of 1874. 
 
 1. Liability for negligence. The commis- 
 sioners of water works appointed by eh. 763, 
 Laws of 1872, were the agents of and responsible 
 to the village corporation to which the i^ater 
 works belong, and the corporation is liable for 
 an injury caused by the neglect of the superin- 
 tendent appointed by such commissiopers to pro- 
 perly guard at night an excavation made by him 
 
 in a street for the purpose of repairing water 
 pipes. Sup. Ct, 1874, Deyoe v. Village of Sara- 
 toga Springs, 1 Hun, 341. 
 
 2. Tills is especially so, where such superin- 
 tendent is also street superintendent under the 
 village corporation. It being the exclusive duty 
 of the corporation to keep the streets in repair, 
 and they being chargeable with notice given to 
 him. lb. 
 
 3. Union avenue. The acts providing for 
 the appointment of special commissioners, and 
 the laying out of Union Avenue (ch.623of 1870; 
 chs. 293,500 of 1872), are constitutional and 
 valid. Sup. Ct., 1875, People ex rel. Kilmer v. 
 McDonald, 4 Hun, 188. 
 
 4. Under the act of 1870 the commissioners 
 were required to assess the costs and expenses 
 against the land owners instead of the land, and 
 the amounts are to be levied and collected as 
 other town taxes. lb. 
 
 SATISFACTION. 
 See MoETQAaE; pbactice. 
 
 SAVINGS BANKS. 
 
 See Banks and banking). 
 
 General act as to, amended, Chaps, 693, 907, Laws 
 of 1871. 
 
 SCIRE FACIAS. 
 
 1. Proceedings under Code. An action 
 under the Code, taking tlie place of the former 
 writ of scire facias, to revive a judgment and 
 obtain execution against the property of a de- 
 ceased judgment debtor, cannot be maintained 
 against his personal representative and his heir 
 at law as co-defendants. Sup. Ct. Sp. T., 1872, 
 Strong v. Lee, 44 How. 60. 
 
 2. Under the Code as well as under the re- 
 vised statutes, the personal estate must be first 
 resorted to, and the action against the personal 
 representative must be brought within one year 
 from his appointment and qualification ; but an 
 action cannot be brought against the heirs until 
 after three years from that time. lb. 
 
 3. If such an Action be brought against per- 
 sonal representatives and heirs, the court cannot 
 order it to be divided into two actions, under the 
 last clause of sec. 172 of the Code, upon sustain- 
 ing a demurrer for that cause. That provision 
 was intended to apply only to actions which by 
 law may proceed simultaneously and separar 
 tely. lb. 
 
 SCHOOLS; SCHOOL DISTEICTS. 
 See Common schools. 
 
 SEAMEN. 
 See Ships and seamen. 
 
670 
 
 SECRETARY OF NAVY— SET-OFF. 
 
 SECEETAKY OF NAVY. 
 
 1. Agencies. The Secretary of the Navy of 
 the United States has authority, under 14 U. S. 
 Stats, at large, 64, see. 1, to appoint an agent in 
 England to pay drafts drawn by naval o£9cers 
 abroad, and, when necessary, he may exact and 
 receive from such agent securities to protect 
 his department from loss. Sup. Ct., 1876, 
 Weetjen v. St. Paul #• Pacific R K Co., 4 Hun, 
 629. 
 
 SECURITY FOE COSTS. 
 See Pkaotice. 
 
 SEDUCTION. 
 
 1. Action for. A widow, whose minor 
 daughter lives with her, can maintain an action 
 for the seduction of such daughter, and may re- 
 cover, even though the seduction was accom- 
 plished by force and against the consent of the 
 seduced. Sup. Ct., 1871, Damon y. Moore, 6 Lans. 
 464. 
 
 2. In such an action the damages recoverable 
 are not limited to the value of the services lost, 
 but exemplary damages may be given. lb. 
 
 3. Where the minor daughter of a widow, 
 being out at service, was sent for by her mother 
 to aid temporarily during sickness, and during 
 her stay at home assisting in the household 
 duties, had connection with and became preg- 
 nant by defendant, — Held, that she was at the 
 time in the actual service of the mother, in such 
 sense tliat the latter could recover in an action 
 for a loss of services. Com. App., 1872, Gray v. 
 Durland, 51 N. Y. (6 Sick.) 424; Aff'g S. C, 
 50 Barb. 100. 
 
 4 Where a minor daughter, after the death of 
 her father, and while in the employ of another 
 under an agreement made by the mother, receiv- 
 ing the pay for her services, with her mother's 
 assent, and applying them to her own use, is 
 seduced, and returns to her mother, who pro- 
 vides and cares for her during her confinement, 
 the latter can maintain an action against the 
 seducer for the injury. Allen and Folgek, 
 JJ., dissent. Ct. App., 1874, Furman y.Van Sise, 
 56N. Y. (11 Sick.) 435. 
 
 5. Independently of the loss of service, such 
 an action can be maintained where, by reason of 
 the injury, such minor daughter, before able to 
 earn her own support, becomes entirely depen- 
 dant, and a legal charge upon the mother, under 
 the provisions of the statute which makes 
 parents liable for the support of their indigent 
 children ; the wrongful act of the defendant, in 
 such case, resultingun a direct pecuniary injury 
 to the plaintiff. lb. 
 
 SEPAEATE MAINTENANCE 
 See Maemaob and divoece. 
 
 SEEVANT. 
 See Master and sbevant. 
 
 SESSIONS, COURT OF. 
 See Special sessions. 
 
 SET-OFF. 
 
 1. Against assignee. In an action upon a 
 liquidated demand by an assignee thereof, the 
 defendant cannot^ set up an unliquidated claim 
 for damages for breach of contract existing in 
 his favor against the assignor at the time of the 
 assignment as a set-off. Com. App., 1874, Frick 
 V. White, 67 N. Y. (12 Sick.) 103. 
 
 2. In an action by an assignee to recover a 
 balance of account for coal sold by his assignors 
 to defendant, an answer alleging the breach by 
 such assignors of a contract to deliver 400 tons 
 of coal to defendant at $6 per ton ; a rise in 
 value of coal before the assignment to $7.50 per 
 ton, and a consequent damage of $600, which he 
 will off-set against the plaintiff's claim, — Held, 
 not to state facts sufficient to constitute a count- 
 erclaim, or a proper set-off against plaintiff. lb. 
 
 3. A partnership claim against an insolvent 
 banker on an unpaid acceptance, due at the 
 time of an assignment made for the benefit of 
 creditors, is a proper subject of set-off, in an ac- 
 tion by the assignee upon a note held by the 
 banker made for partnership purposes, but 
 executed by one of the partners individually and 
 indorsed by the other, although such note was 
 not due at the time of assignment, Ct. App., 
 1871, Smith v. Felton, 43 N. Y. (4 Hand,) 419. 
 
 4. A demand against the assignor of a con- 
 tract, to be available as a set off against the^ as- 
 signee, must be due and payable at the time of 
 the assignment thereof. Want of notice of the 
 assignment does not preserve the right of setoff. 
 N. Y. Supr. Ct., 1873, Westlakev. Bostwick, Sb 
 N. Y. Supr. (3 J. & Sp.) 256. 
 
 6. Against ezecutors. A debt due from 
 the testator at the time of his death cannot be 
 set off against a debt created or whereon the 
 cause of action arose after his death. Ct. App., 
 1875, Patterson v. Patterson, 59 N. Y. (14 Sick.) 
 574; Modifying S. C, 1 Hun, 323; 47 How. 242. 
 
 6. Thus, in an action by an executrix to fore- 
 close a mortgage securing a bond, executed to the 
 testator and conditioned to pay to his executor 
 or administrator a certain sum within four 
 months after his death, the defendant cannot set 
 off a debt due to him from the testator in his 
 lifetime. lb. 
 
 7. The defendant may, however, set off in 
 such action an amount paid by him for the ne- 
 cessary funeral expenses of the testator, that 
 being a claim against the estate arising after the 
 testator's death. lb. 
 
 8. Deposits made with a private banker, who 
 carries on a general banking business, not being 
 due until demand, cannot be set off against notes 
 of the depositor discounted by such banker, and 
 by him transferred before demand of the de- 
 posits. Sup. Ct., 1870, Fort v. McCully, 59 Barb. 
 «7. 
 
 9. But such deposits may be set off against 
 such notes iu the hands of a general assignee of 
 such banker, who is directed by the assignment 
 to pay the debts of the assignor in the same or- 
 der and manner in which the estate of a bank- 
 rujft is required to be used and applied for the 
 payment of debts proved and allowed under the 
 provisions of the bankrupt act, and the latter 
 can recover only the balance. lb. 
 
 10. A deposit in the hands of a banker is prop- 
 
SETTLEMENT— SHERIFF. 
 
 671 
 
 er subject of set off, in an action by an assignee 
 of sucli banker for the benefit of creditors upon 
 a promissory note held by the banker against 
 the depositor. Com. App., 1872, Smith v. Fox, 
 48N. Y. (SSick.) 674. 
 
 11. A judgment in favor of one party may 
 be set off, in an action for that purpose, against 
 a judgment held by the adverse party against 
 the former, notwithstanding the lien of an attor- 
 ney thereon for his costs, whether such lien is 
 created by law or by express agreement ; but an 
 assignment of the judgment to the attorney, as 
 security for his costs, cuts off the right to such 
 set off. Sup. Ct., 1874, Firmenich v. Bovee, 1 
 Hun, 532. 
 
 12. The right to set off a judgment does not 
 accrue until it has been actually recovered. lb. 
 
 13. Although in an action to enforce the right 
 of set off, the court has no discretion, but must 
 enforce the legal right of a defendant to have a 
 judgment in his favor, for costs on dismissal of 
 the action, set off against a judgment or order 
 for costs, in a collateral proceeding in the same 
 action, in favor of the plaintiff, notwithstanding 
 the lien of plaintiff's attorney on sucli judgment, 
 yet it will not do so upon a motion, but will pro- 
 tect the lien of the attorney. N. Y. Supr. Ct., 
 Sp. T., 1872, Honey v. Rubber Tip Pencil Co., 14 
 Abb. N. S. 66. 
 
 14. A party having a judgment against another 
 is not entitled to set it off against a judgment 
 for costs in favor of such other in a subsequent 
 suit commenced by him, as against the rights of 
 the attorney who obtained the latter judgment, 
 secured by an express contract in writing trans- 
 ferring such costs to him, executed before the 
 judgment was rendered. Ct. App., 1873, Perry 
 V. Chester, 53 N. Y. (8 Sick.) 240 ; Rev'g S. C, 
 36 N. Y. Supr. (4 J. & Sp.) 228. 
 
 15. "Where, several days prior to the trial of an 
 action against two defendants, one of them exe- 
 cutes an assignment to the other of all his right, 
 title and interest in and to the taxable costs and 
 disbursements in the action, complete except the 
 date which is supplied immediately upon the dis- 
 missal of the action as to such defendant with 
 costs, but before judgment entered thereon the 
 plaintiff recovers a verdict against the remain- 
 ing defendant, and immediately assigns it to a 
 third party who enters up judgment thereon, 
 such defendant is not entitled to have his judg- 
 ment for costs set off against that recovered by 
 the plaintiff, it not having been liquidated when 
 that was assigned. N. Y. C. P., Wood v. Merritt, 
 45 How. 471. 
 
 16. Money obtained by deceit. A claim 
 for money obtained by oppression, imposition, 
 extortion or deceit, will sustain an action of as- 
 sumpsit, and may, therefore, be interposed as a 
 set off in an action on contract by the party 
 against whom it exists, or by his assignee. Sup. 
 Ct., 1874, Harway v. Mayor, etc. of New York 
 City, 1 Hun, 628. 
 
 17. Waiver of right. A party may waive 
 his legal right of set off by an agreement deliber- 
 ately entered into upon sufficient consideration. 
 Accordingly, — Held, that, where a creditor in- 
 ducedhis debtor to make certain shipments of 
 produce to him, by a promise to retain and ap- 
 ply upon his debt only one-half of the profits, 
 and to account to the debtor for the balance, 
 he could not set off such prior debt in an action 
 by such debtor or his assignee for his share of 
 such profits. Ct. App., 1872, Gutchess v. Daniels, 
 49 N. Y. (4 Sick.) 605 ; Rev'g S. C, 58 Barb. 401. 
 
 SETTLEMENT. 
 
 1. Disputed olciim. The law favors the 
 settlement and adjustment of disputed mat- 
 ters between the parties ; and the compromise 
 or settlement of even a doubtful claim, when 
 procured without deceit, such as would vitiate a 
 contract, will conclude the parties. N. Y, Supr. 
 Ct., 1872, Wehrum v. Kuhn, 34 N. Y. Supr. (2 J. 
 & Sp.) 3.S6. 
 
 2. A settlement of disputed claims amounting 
 to $7,000, and an offer by one party to pay 
 $2,000 in full settlement thereof, accepted by the 
 other, held binding upon them. lb. 
 
 3. Of suit. A judgment recovered by county 
 supervisors in favor of the county may be com- 
 promised and settled by them, pending an appeal 
 therefrom ; and if they accept a stipulation for 
 that purpose, and receive and retain for the use 
 of the county money paid in pursuance thereof, 
 they and their successors in office are bound 
 thereby. Sup. Ct., 1871, Board of Supervisors of 
 Orleans Co. v. Bowen, 4 Lans. 24. 
 
 4. Avoidance for mistake. The mistake of 
 one party as to matters of fact, and the fraud of 
 the other party, are quite as good causes for va- 
 cating a settlement of accounts, as a mutual 
 mistake. Sup. Ct., 1872, Bloodgood v. Sears, 64 
 Barb. 71. 
 
 5. Where a claimant against an estate is in- 
 duced to settle it, at a great discount, by the 
 fraud of the administrator in making an untrue 
 inventory and concealing a large share of the 
 estate, the settlement may properly be vacated, 
 lb. 
 
 SEWEES. 
 See Municipal oorpoea.tions. 
 
 SHEEIEP. 
 
 As to auties and liabilities, see ch. 208, Laws of 
 1871. 
 
 1. Duty to levy. A sheriff is bound to use 
 all reasonable endeavors to execute process in 
 his hands in the most effectual manner ; and if 
 through his neglect to use proper care and dili- 
 gence to subject the property of a judgment 
 debtor to an execution in his hands, the plaintiff 
 loses the benefit thereof, the sheriff is liable for 
 a false return. N. Y. Supr. Ct., 1875, Watson v. 
 Brennan, 39 N. Y. Supr. (7 J. & Sp.) 81. 
 
 2. Even though such property is in the cus- 
 tody of the law under attachments previously 
 levied, he is bound to use such reasonable care 
 and diligence as will enable him or the execution 
 plaintiff to subject the same to his execution, if 
 it or any part is lawfully subject thereto at the 
 time of its issue, or becomes so subsequently 
 during the life of the execution. lb. 
 
 3. Where it appeared tliat the levy under the 
 prior attachment was excessNe, and that the 
 slieriff did not take the proper measures to reach 
 the excess, nor, when informed that some of 
 such property had been removed, make proper 
 search or inquiry therefor, nor inform the execu- 
 tion plaintiff of that fact, or of the commence- 
 ment of proceedings in bankruptcy against the 
 execution debtor, nor make any claim under the 
 execution in such proceedings, but returned the 
 execution nulla bona, — Held, that he was liable 
 
672 
 
 SHERIFF. 
 
 for the amount of the execution and interest 
 thereon. lb. 
 
 4. In an action for such false return the sher- 
 iff cannot attack the plaintiff's judgment as 
 being invalid under the bankrupt act, and claim 
 that, therefore, neither the property nor its pro- 
 ceeds could be subjected thereto. lb. 
 
 5. — to pay over money collected. It 
 is the duty of a sheriff who has collected money 
 en execution, to pay it over to the plaintiff, or 
 return it into court, and if he fails to do so, he is 
 liable to an action without previous demand. Ct. 
 App., 1874, Nelson v. Kerr, 59 N. Y. (14 Sick.) 
 224. 
 
 6. The provision of sec. 290 of the Code in re- 
 spect to the return of an execution, is suflficient 
 to authorize the sheriff to pay money collected 
 on execution to the clerk of the court in which 
 the judgment roll is filed. lb. 
 
 7. Where a deputy sheriff, after having 
 returned an execution nulla bona, procured the 
 same from the clerk's office, with the plaintiffs 
 consent, and erasing the return, made a levy and 
 sale thereon, — Held, that, although irregular, the 
 process was not absolutely- void, and the sheriff 
 was liable to account for the proceeds realized. 
 Geat, C., dissents. Com. App., 1871, James v. 
 GurUy, 48 N. Y. (3 Sick.) 163. 
 
 8. liiability as bail. If, upon the arrest of 
 a defendant, bail is not given or the sureties do 
 not justify, the extent of the sheriff's liability 
 under sec. 201 of the Code is that of bail, and he 
 may discharge that liability in the same manner 
 as is allowed to bail. Ct. App., 1874, Brady v. 
 Brmdage, 59 N. Y. (14 Sick.) 310. 
 
 9. In an action to enforce the liability of a 
 sheriff as bail, the court may grant an order ex- 
 onerating "him upon his surrendering the person 
 arrested within the twenty days allowed by law 
 after the commencement of the suit, or even 
 after that time upon sufficient excuse being 
 shown. lb. 
 
 10. In an action against a sheriff by one who 
 was defendant in a former suit for the claim and 
 delivery of personal property, to enforce his 
 liability arising under sec. 210 of the Code in 
 consequence of the failure of plaintiff's sureties 
 to justify after being excepted to, it is no de- 
 fense that the sheriff retained the property at 
 the request of such defendant, and after judg- 
 ment in his favor, delivered the same to defend- 
 ant on his agreement to release such sheriff 
 from all liability, because, 1st, by excepting to 
 the sureties the defendant waived all right to 
 reclaim the property, and it became the sheriff's 
 duty forthwith to deliver the same to the plain- 
 tiff, and his agreement not to do so was against 
 public policy and void ; and, 2nd, it was his duty 
 to deliver the property to the defendant after 
 judgment in his favor, and such delivery furnish- 
 ed no consideration for the promise to release. 
 Ct. App., 1874, Hofheinier v. Campbell, 59 N. Y. 
 (14 Sick.) 269; Afi'g S. C, 7 Lans. 157. 
 
 11. — for defaults of under-sheriff. If an 
 ex-sheriff, having unfinished business in his 
 hands, dies after his successor has been elected 
 and qualified, the, under-sheriff of 'the deceased 
 is vested with all his powers in relation to such 
 business ; and the estate and sureties of the de- 
 ceased ex-sheriff, alone, are liable for the 
 defaults and misfeasances in office of such under- 
 sheriff after the death of his principal. Sup. Ct., 
 1871, Newman v. Beckwith, 5 Lans. 80. 
 
 12. The owner of a judgment which has been 
 collected by an under-sheriff, under such circum- 
 stances, cannot maintain an action against him 
 to recover the money, but he and his sureties 
 
 are liable on his bond to the representatives of 
 his principal. lb. 
 
 18. — for failure to collect. If the omis- 
 sion of a sheriff to make a levy during the life 
 of his execution was by direction of the plaintiff, 
 he is not chargeable with a neglect of duty, and 
 is not liable for a failure to collect it. Having 
 no authority to levy after the return day, his 
 failure then to levy and collect, though directed 
 so to do, cannot make him liable. Ct. App., 1876, 
 Smith V. Smith, 60 N. Y. (15 Sick.) 161. 
 
 14. — for false return. A sheriff who 
 makes a false return of " not found " to an ex- 
 ecution, thereby subjecting the bail of the 
 defendant to an action upon his undertaking, 
 will be liable to the latter, in case of a recovery 
 upon the undertaking and payment by him, for 
 the amount So paid. Ct. App., 1873, Cozine v. 
 Walter, 55 N. Y. (10 Sick.) 304. 
 
 16. If, however, the bail in such action, having 
 obtained by surrender of his principal an exan- 
 eretur, which would be a perfect defense to the 
 action, neglects to avail himself thereof, he can- 
 not recover of the sheriff the amount of the 
 judgment, but only the expense of obtaining the 
 exoneretur, lb. 
 
 16. The failure of such bail to complete pro- 
 ceedings commenced by him to obtain an exon- 
 eretur, if available to the sheriff for any purpose, 
 cannot wholly discharge his liability, but can 
 extend no further than the reduction of dam- 
 ages, lb. 
 
 17. Such failure will not be available to the 
 sheriff at all as a defense, when attributable to 
 his own act. So held, in a case, where he dis- 
 charged the defendant, under color of a law en- 
 acting that no person should be confined under 
 civil process until the plaintiff or other person 
 upon whose application the arrest was made 
 should have paid a certain sum toward the ex- 
 pense of his board, the ground of discharge 
 being the failure of the bail to advance the sum 
 specified. lb. 
 
 18. A sheriff cannot authorize his deputy to 
 execute final process against the deputy him- 
 self ; and if he does entrust an execution, where- 
 in such deputy is the judgment debtor, to the 
 deputy to execute, and the latter falsely returns 
 the same nulla bona, the sheriff is liable in an 
 action for a false return. N. Y. C. P., 1876, HoU 
 brook V. Brennan, 48 How. 519. 
 
 19. Irregular sale on execution. A sheriff 
 who sells property levied on by him all together, 
 instead of in parcels as he ought to do, and 
 thereby causes another execution creditor to 
 lose his debt, is liable therefor to the person in- 
 jured. Sup. Ct, 1874, Tugwell v. Bussing, 2 Hun, 
 160. 
 
 20. Non-return of execution. If a plain- 
 tiff in an execution consents that the sheriff or 
 his deputy may retain it after the return day, he 
 thereby treats it as property in the officer's 
 hands, and waives any existing right of action 
 for its non-return. Sup. Ct., 1872, McKinley v. 
 Tucker, 6 Lans. 214, Overruling S. C, 59 Barb. 
 93. 
 
 21. An instruction by the plaintiff to the dep- 
 uty, after the return day, to receive notes due 
 at a future day and hold them till due, and when 
 paid apply on the execution, is a recognition 
 that the execution is properly in his hands, and a 
 consent to his retaining it until after the maturity 
 of the notes, and a waiver of the accrued right 
 of action for non-return. lb. 
 
 22. Such instruction makes the deputy the 
 party's agent, and discharges the sheriff. lb. 
 
 23. 'Wrongful levy and sale. A sheriff 
 
SHIPS AND SEAMEN. 
 
 673 
 
 who takes the property of B under an attach- 
 ment against A and afterward levies upon and 
 sells it by virtue of an execution in that action, 
 cannot be held liable in an action of trespass by 
 B for his acts on the day of sale alone, if before 
 such sale an execution had come to his hands 
 against both A and B, since the property would 
 be bound for the amount of such execution 
 without a levy. N. Y. Supr. Ct., 1874, Atwood 
 v. Lynch, 37 N. Y. Supr. (5 J. & SpJ 6. 
 
 24. If, in such case, the sheriff wrongfully 
 appropriated the proceeds of the sale to the ex- 
 ecution against A, he might be liable to the cred- 
 itors of A and B, for a false return ; and per- 
 haps B might also sustain an action if he could 
 show special damage. lb. 
 
 25. Action by sheriff. Though part only 
 of a number of attaching creditors of a foreign 
 corporation, prosecute in their own name under 
 sec. 288 of the Code, on action or actions by such 
 corporation against its debtors, pending at the 
 time of the issue of the attachments, to the ex- 
 clusion of the other attaching creditors, the 
 latter are not thereby barred of their claims, but 
 the debts are still held under the attachments 
 for the benefit of whosoever shall prove to be 
 entitled; and the sheriff can, after judgment 
 obtained in such action, or actions, maintain in 
 behalf of such other creditors an action to estab- 
 lish their priority of claim to the fund. Ct. 
 App., 1872, O'Brien v. GlenviUe Woollen Company, 
 50 N. Y. (5 Sick.) 128. 
 
 26. Although the sheriff recover in such 
 action, his recovery will be limited to the 
 amount of the debt and interest embraced in the 
 judgments, the costs belonging to the attorneys 
 of the parties prosecuting. lb. 
 
 27. Whether the shenff's successor in office 
 should be substituted as plaintiff in case of his 
 death, or not, such successor as trustee for the 
 parties in interest, is at least a proper party to 
 the action. lb. 
 
 28. Pees. The sheriff is not entitled to any 
 fees for official services except such as are ex- 
 pressly allowed by statute. N. Y. C. P., 1874, 
 CroM v. Brandt, 46 How. 481 ; 13 Abb. N. S. 
 l28; Aff'd, Ct. App., 1874; S. C, 47 How, 
 263. 
 
 29. Upon execution, he is not entitled to 
 claim extra fees for expenses paid to keepers, 
 charges for cartage, storage, insurance, cata' 
 loguing goods, or for fees of an auctioneer em- 
 ployed by himself to sell without request from 
 a party, or for refunding purchaser's deposits, 
 but must look to his poundage for compensation 
 therefor. lb. 
 
 30. When a transcript of a judgment recov- 
 ered in the marine court of New York city is 
 filed and docketed with the county clerk, it be- 
 comes a judgment of the Court of Common 
 Pleas, and upon execution issued thereon the 
 sheriff is' entitled only to the same fees and 
 poundage as if the judgment had been rendered 
 in the latter court. lb. 
 
 81. Whether, if he incurs expense for the 
 benefit of either party, and upon his promise to 
 pay him therefor, he can recover such expense 
 of such party, qxiei'y ? lb. 
 
 82. If a judgment be modified on appeal by 
 reducing its amount, after the levying of an 
 execution for the full amount of the original 
 judgment, the sheriff is entitled to collect his 
 fees only on the amount of the modified judg- 
 ment, even though he has never released his 
 original levy. Buff. Supr. Ct., Sp, T., 1872, 
 Dole V. New York Central, etc. E. R. Co., 12 
 Abb. N. S. 385. 
 
 43 
 
 83. A sheriff is entitled to but one fee of fifty 
 cents for receiving and entering an execution in 
 his books and searching for property. He can- 
 not charge one such fee under ch. 225, Laws of 
 1850, and another under ch. 416, Laws of 1871. 
 Sup. Ct., 1872, Buck v. City of Lockport, 43 
 How. 283. 
 
 34. Poundage is in the nature of commis- 
 sions,' and upon a money execution the sheriff is 
 not entitled thereto until the money is col- 
 lected, and it is to he measured by the sum then 
 realized, unless, after a levy, the sheriff is pre- 
 vented from fully executing the writ by the act 
 or ipterference of the plaintiff in the execution. 
 Ct. App., 1874, Campbell v. Cothran, 56 N. Y. 
 (11 Sick.) 279 ; Afi'g S. C, 65 Barb. 534. 
 
 35. If, after a levy sufficient to satisfy aii ex- 
 ecution, the judgment is reversed or modified 
 before the money is actually collected, the 
 sheriff is entitled to poundage only on the sum 
 actually collected. lb. 
 
 SHIPS AND SEAMEN. 
 
 1. Contribution for salvage. The owner 
 of goods stored upon the deck of a wrecked 
 vessel, which are recovered in the course of sav- 
 ing the whole, and necessarily removed for that 
 purpose, is liable to contribute his due propor- 
 tion of the whole expenses, on the principles of 
 general average. N. Y. Supr. Ct., 1870, Jones v. 
 Bridge, 2 Sweeny, 431. 
 
 2. Demurrage for Sundays. While the 
 law of this State makes servile labor upon Sun- 
 day illegal, demurrage cannot be recovered for 
 intervening Sundays during the discharge of a 
 cargo. N. Y. C. P., 1873, Rigney v. White, 4 
 Daly, 400. 
 
 3. Iden for repairs. The lien for repairs 
 upon a vessel given by ch. 482, Laws of 1862 
 (4 Edm. Stats. 658), exists the moment the work 
 is done ; and such lien is not impaired by the 
 fact that the work was done on the personal 
 credit of the owner, or that time of payment is 
 given to him, provided that time does not extend 
 beyond that specified in the act for the existence 
 of the lien. Com. App., 1874, Mott v. Lansing, 
 bTTS.Y. (12 Sick.) 112. 
 
 4. The only effect of giving time for payment 
 is to postpone the right of the claimant to en- 
 force his lien until the debt becomes due. lb. 
 
 5. To preserve this lien in case the vessel de- 
 parts from the port, the claimant must within 
 twelve days draw up and file in the proper office, 
 the specification required by sec. 2 ; but he is 
 not required to have possession of the vessel 
 during the continuance of his lien, nor does his 
 consent to its departure affect the lien. lb. 
 
 6. A canal boat is a vessel within the mean- 
 ing and subject to the provisions of the act of 
 1862, for the collection of demands against boats 
 and vessels. Sup. Ct., 1875, Emmons v. Wheeler, 
 3 Hun, 546. 
 
 7. A claim for materials furnished to a vessel 
 before launching, and while on land, is not mar- 
 itime in its nature. Sup. Ct. Sp. T., 1872, 
 Moores v. Lunt, 13 Abb. N. S. 166. 
 
 8. Under the act of 1862 no valid lien upon a 
 vessel can be created for materials, etc., made 
 and delivered at a place within this State, under 
 a contract made here, to be used on the vessel 
 while in course of construction in another State. 
 S. C, 1 Hun, 660. 
 
 9. So much of the act of 1862 as authorizes 
 
674 
 
 SHIPS AND SEAMEN. 
 
 proceedings to he taken against an ocean-bound 
 vessel for repairs done is unconstitutional and 
 invalid, l)ut so much of it as authorizes tliem to 
 be taken for a demand for building such vessel, 
 is constitutional and valid. Sup. Ct., 1874, 
 Murphy V. Salem, 1 Hun, 140. 
 
 10. An undertaking given to release such ves- 
 sel from attachment under that act, can be'en- 
 forced so far as the claim is for building the 
 vessel only. lb. 
 
 11. Contracts for work and materials for a 
 sea-going vessel are maritime contracts, and no 
 lien can be obtained or proceedings in rem be had 
 in a State court, under the act of 1862, even 
 though such vessel is owned by persons residing 
 in this State, and is lying at her home port. 
 N. Y. Supr. Ct., 1874, Poole v. Kermit, 37 N. Y. 
 Supr. (6 J. & Sp.) 144. 
 
 12. Notwithstanding the contrary decisions of 
 the United States Courts on this subject, infe- 
 rior courts of this State are bound by the decis- 
 ions of our own Court of Appeals. lb. 
 
 13. A bond given to release a vessel from an 
 attachment under the State law, falls with the 
 attachment and cannot be enforced. lb. 
 
 14. Under the act of 1862, providing for the 
 collection of demands against boats and vessels, 
 the filing of a specification of the claim is neces- 
 sary only in case of a departure of the vessel 
 from the port where the debt was contracted ; 
 consequently, where there has been no depart- 
 ure, the petition need not mention the filing of 
 such specifications. Com. App., 1872, Happy v. 
 Mosher, 48 N. Y. (3 Sick.) 313 ; Kev'g S. C, 47 
 Barb. 501. 
 
 15. Where one furnishing materials for tbe 
 repair of a vessel, takes the note of the con- 
 tractor for the amount, that has the effect to 
 extend the time of payment of the debt until 
 the note matures, and until such time he cannot 
 institute proceedings for its collection under the 
 statute. lb. 
 
 16. Any technical defects in the prior proceed- 
 ings are waived by the giving of the bond pre- 
 scribed by the act ; and the obligation of the 
 bond can be discharged only by showing that 
 no debt was due or that no lien existed. lb. 
 
 17. It is incumbent upon one claiming the 
 benefit of the statute for lumber furnished a 
 contractor, to show that such lumber was all 
 actually used in the construction of the vessel 
 before the application was made ; and this must 
 be shown by evidence competent against the 
 owners. lb. 
 
 18. Iiien for supplies. In a case where a 
 coal dealer of Baltimore filed a libel in rem 
 against a steamer chartered or owned by a 
 Rhode Island steamboat company and employed 
 by it in making weekly trips between New York 
 and Baltimore, to enforce a lien against such 
 steamer for coal furnished it on orders of the 
 agent of the company, it appearing that the 
 steamer was in a foreign port (i. e. at Baltimore) 
 when the coal was received, that it was ordered 
 for her specifically by name and delivered to the 
 officers in charge of her; and that such was 
 necessary to enable her to make her trips, — 
 Held, that the inference was that the credit was 
 given to the vessel, unless there was evidence 
 from which it could be inferred that the master 
 had funds, or the owners had credit, and that 
 the material man knew of this, or of such facts 
 as should have put him upon inquiry. U. S. 
 Sup. Ct., 1872, Steamer Patapsco 48 How. 301. 
 
 19. In this case, it appearing that the com- 
 pany was, at the time of the delivery of the 
 coal, hopelessly insolvent, and was borrowing 
 
 large sums of money at Baltimore and else- 
 where on a mortgage of its steamers, of which 
 facts it may reasonably be inferred the libellant 
 had knowledge, it is not to be presumed that he 
 relied on the credit of the company. Tb. 
 
 20. The sales of the coal being for cash at 
 the lowest market price, although for conve- 
 nience the libellant did not present his bills un- 
 til the end of each month, it is clear that he did 
 not give a credit to the company at the time of 
 the sales ; and when he waived payment on de- 
 livery, and put the coal on board, the presump- 
 tion of law would be that he thereby gave credit 
 to the steamer and not to the owners, inasmuch 
 as the supplies were furnished at a foreign port, 
 lb. 
 
 21. If the credit was given to the vessel, there 
 is a lien upon it, and the burden of displacing it 
 is on the claimant ; and to do that he must 
 show affirmatively that the credit was given to 
 the company to the exclusion of credit to the 
 vessel, lb. 
 
 22. Entries in the books of the party furnish- 
 ing the supplies, tending to show to what or 
 whom the credit was given, are not conclusive 
 but may always be explained, and the truth of 
 the transaction be shown independent of them, 
 lb. 
 
 23. The statutory provisions attempting to 
 give a lien upon vessels for supplies furnished 
 for their use are an infringement upon the ex- 
 clusive admiralty jurisdiction of the federal 
 courts ; and a bond given to release a vessel 
 from attachment under those statutes is, there- 
 fore, void. Com. App., 1871, Vose v. Codcroft, 
 44 N. Y. (5 Hand,) 415. 
 
 24. laability for cargo. A mortgagee of a 
 canal boat who allows the owner to use it as a 
 general freighting boat for compensation, sub- 
 jects it to the ordinary obligations which such 
 boats Incur through the contracts of the master, 
 and his lien is subordinate to that of one who 
 libels the boat for a loss of cargo. U. S. Dist. 
 Ct., 1875, Van Buren v. Canal Boat M'Chesney, 
 49 How. 178. 
 
 25. Where the bill of lading is sibsolute in its 
 terms, that all damages caused by the carrier, 
 or deficiency of cargo, shall be paid by the 
 carrier, he must respond, with the boat, for any 
 loss of cargo, even though it was stolen. by or 
 with the knowledge of the master. lb. 
 
 26. — for loss by fire. The act of Con- 
 gress of March 3, 1851, limiting the liability of 
 shipowners for losses by fires occurring thereon, 
 does not apply to vessels enrolled and licensed 
 for the coasting trade, and engaged in the trans- 
 portation of freight and passengers on the rivers 
 and lakes, notwithstanding the exception of cer- 
 tain vessels by sec. 7. Sup. Ct., 1872, Chisholm 
 V. Northern Trans. Co., 61 Barb. 863. 
 
 27. The owners of vessels to which that stat- 
 ute applies are not liable for losses by fire occur- 
 ring thereon through the misconduct of the 
 officers and mariners, in which the owners them- 
 selves did not participate. lb. 
 
 28. To render the owners of a vessel liable, in 
 an action to recover damages for Injuries to the 
 person and losses of property through their acts 
 or negligence, such loss and injuries must be 
 shown to have arisen from the personal design 
 or neglect of the owners. lb. 
 
 29. Even if the fire causing such loss and in- 
 jury, was attributable to the personal neglect of 
 the owners, such as a fault in the construction 
 or equipment of the vessel, yet, if the defect ex- 
 isted without their knowledge or privity, they 
 would only be liable to the extent and in the 
 
SHIPS AND SEAMEN. 
 
 675 
 
 manner specified in the act of 1851 ; except so 
 far as that act is modified by the act of 1852. lb. 
 
 30. The provision of sec. 41, ch. 106, acts of 
 Congress of 1852, that all penalties imposed by 
 that act may be recovered in an action of debt, 
 by any person who will sue therefor, in any 
 court of the United States, refers to the specific 
 pecuniary penalties for the acts and neglects 
 specified in the statute. lb. 
 
 31. Where the liability sought to be enforced 
 against the owners of a vessel is not a penalty, 
 within the meaning of that section, and the act 
 prescribes no remedy for enforcing such lia- 
 bility, but the common law is competent to pro- 
 vide one, the State courts have jurisdiction, al- 
 though the case is one of admiralty or maritime 
 jurisdiction. lb. 
 
 32. The act of Congress of 1851, exempting 
 shipowners from liability for loss or damage to 
 goods by fire, unless such fire is caused by their 
 design or neglect (9 U. S. Stats, at large, 635), 
 applies to vessels navigating Long Island Sound, 
 and constructed for ocean and coastwise naviga- 
 tion, although in their voyages they pass through 
 or into bays or rivers ; that fact not bringing 
 them within the exception of the act as to vessels 
 " used in rivers, or inland navigation." N. Y. 
 Supr. Ct., 1871, Knowlton v. Providence ^ N. Y. 
 Steamship Co., 33 N. Y. Supr. (1 J. & Sp.) 370. 
 
 33. Under the act of 1851, the owner of a 
 vessel is exempted from all liability for a loss 
 by fire happening without his design or neglect. 
 But when the fire does occur by his design or 
 neglect, his common law liability for the entire 
 loss remains intact. Ct. App., 1873, Knowlton 
 V. Providence S^ N. Y. Steamship Co., 53 N. Y. 
 (8 Sick.) 76. 
 
 34. Sections three and four of that act, limit- 
 ing the liability of such owner for loss . occa- 
 sioned or incurred "without his knowledge or 
 privity," to the value of the vessel remaining 
 and the freight then pending, though general in 
 its terms, must be held to apply to losses occur- 
 ring otherwise than by fire. lb. 
 
 35. Master, po'wers of. A master placed 
 in charge of a vessel by a majority of the 
 owners in interest will, notwithstanding the dis- 
 sent of a minority, have power, by virtue of his 
 office, to bind all the owners by his contracts for 
 necessaries and supplies furnished the ship ; and 
 it matters not that he- has taken the ship to 
 navigate upon shares, so long as the persons 
 giving credit to him have no notice of his ar- 
 rangement with the owners, and that arrange- 
 ment . is not such as to make him, pro hac vice, 
 the owner of the ship. Com. App., 1873, Me- 
 Cready v. Thorn, 51 N. Y. (6 Sick.) 454. 
 
 36. When the circumstances are such as to 
 justify the master, part owner or ship's husband, 
 in purchasing supplies for a vessel upon the cred- 
 it of the owners, the same circumstances will 
 justify him in borrowing the money, even in a 
 home port, upon the credit of the owners, to pay 
 cash for the same articles, but in the latter case 
 to entitle the lender to recover of the owners, 
 he should show, not only that the money was 
 borrowed for a proper purpose, but that it was 
 actually applied to such purpose. lb. 
 
 87. The master of a vessel, libelled in its home 
 port and discharged upon bail bond, has no power, 
 after judgment rendered against the sureties 
 upon such bond, to bind the owner by procuring 
 one to become surety upon an appeal bond. 
 Com. App., 1871, Gager v. Babcock, 48 N. Y. 
 (3 Sick.) 154. 
 
 38. Owner, who liable as. A railroad 
 company taking possession of the road of an- 
 
 other company under a lease, and assuming con- 
 trol of a ferry boat owned by the latter and run 
 in connection with the road, continuing the old 
 master in charge without a new appointment, is 
 liable, as the owner of the boat, for suppUes fur- 
 nished her at the instance of such master after 
 it commences operating the road. Com. App., 
 1872, Scott V. Grand Trunk Railway Co., 51 N. S. 
 (6 Sick.) 655. 
 
 39. A part owner and master of a vessel, who 
 has the exclusive control thereof under an ar- 
 rangement with the otlier owners, wliereby he 
 hires his own crew, pays and victuals them, pays 
 half the port charges, retains one-half the net 
 freight after the deducting those charges, and 
 pays the other half to the otlier owners, is the 
 charterer of the vessel, and as such is, under sec. 
 5 of the act of March 3, 1851 (9 U. S. Stats, at 
 large, p. 635), regarded as the owner and responsi- 
 ble for the tortious acts of the vessel. U. S. 
 Sup. Ct., 1871, Thorp V. Hammond,4S, How. 314. 
 
 40. Part owner, authority of. One part 
 owner of a ship has power to bi*l his co-owner 
 for necessaries and supplies, suitable and proper 
 for her, by virtue of an implied agency. Com. 
 App., 1873, Mc Cready v. Thorn, 51 N. Y. (6 Sick. ) 
 454 ; AfE'g S C, 49 Barb. 438. 
 
 41. Pilot, employment of. A telegram to 
 an agent as follows : " send me a small tug boat, 
 steam pump, engineer, etc., make the best trade 
 you can," is sufficient to authorize the agent to 
 contract to furnish a coast pilot for such tug- 
 boat. N. Y, Supr. Ct., 1870, Martin v. Farnsworth, 
 41 How. 59 ; S. C, 33 N. Y. Supr. (1 J. & Sp.) 
 246. 
 
 42. Duties and responsibilities of. Neither 
 a contract to pay for the services of a pilot, nor 
 one to furnish a pilot for a coasting voyage, 
 would have the effect of placing the vessel in 
 the possession and under the control of the 
 charterer so as to render him liable for the care 
 and management and safe navigation of the ves- 
 sel, or for any negligence or want of skill on the 
 part of the pilot, during the voyage. lb. 
 
 48. A pilot on board a vessel during her 
 voyage at sea is under the control of the master 
 and subject to his commands and directions. 
 The responsibility and charge of the vessel, and 
 the general care and management of her during 
 the whole voyage devolves upon the master, 
 lb. 
 
 44. The relative duties and responsibilities of 
 masters, pilots and mariners, when on a voyage, 
 discussed. lb. 
 
 45. Ship's husband, powers of. A ship's 
 husband has power to bind the owners by his 
 contracts for supplies furnished the vessel, or 
 repairs made upon her, or for money borrowed 
 by him to pay the expense of such supplies or 
 repairs ; and his appointment may be oral or in 
 writing, or it may be inferred from his exercising 
 the duties of his office with the knowledge and 
 consent of the owners. Com. App., 1873, Mc- 
 Cready v. Thorn, 51 N. Y. (6 Sick.) 454. 
 
 46. Seamen, actions by. When a foreign 
 seaman binds himself by his contract that he 
 will not bring any dispute or quarrel he may 
 have with the master or his substitute before 
 any court but that of his own country, the 
 tribunals of this State will hold him to his 
 obligation and dismiss an action brought by 
 him therein, unless the voyage, as respects him, 
 was brought to an end here without any wrong- 
 ful act on his part. N. Y. C. P., 1869, Olzen v. 
 Schierenberg, 3 Daly, 100. 
 
 47. A seaman has an action for his wages, 
 against either the master or the owners of the 
 
676 
 
 SLANDER. 
 
 vessel, but not against both. N. Y. C. P., 1869, 
 FitKsimmons v. Baxter, 3 Daly, 81. 
 
 48. — against mate. As a general rule the 
 mate of a ship, upon succeeding to the command, 
 becomes liable for the wages of the seamen to 
 the same extent as the master ; and, especially 
 is this the case, where by the express language 
 of the shipping articlesj^e seamen have bound 
 themselves not only to the one who was master 
 at the time, but to any one who should lawfully 
 succeed him during the voyage. lb. 
 
 49 Defense against. Desertion by a seaman 
 in order to constitute a bar to an action by him 
 for his wages, must have been voluntary and 
 not induced by an act of the captain which ren- 
 dered the dissolution of his contract necessary 
 and justifiable on the part of the seaman. lb. 
 
 SLANDER. 
 
 1. 'What 'words actionable. Words charg- 
 ing one who was a witness in a former judicial 
 proceeding with swearing to a lie, or swearing 
 falsely, in such proceeding, impute the crime 
 of perjury and are actionable per se. Com. App., 
 1873, Spooner v. Keeler, 51 N. Y. (6 Sick.) 527. 
 
 2. To sustain an action therefor, the plaintiff 
 need not prove the jurisdiction of the court or 
 the materiality of the testimony charged as false, 
 but it is for the defendant to show the contrary. 
 lb. 
 
 3. Words charging a young female with self- 
 pollution, do not charge an indictable offence, 
 and therefore are not actionable per se. Ct, 
 App., 1875, Anonymous, 60 N. Y. (15 Sick.) 262. 
 
 4. Neither is the refusal of her father to furnish 
 her with promised articles of clothing, or means 
 of education, in consequence thereof, such spe- 
 cial damage as will sustain the action, not being 
 the natural and immediate consequence of the 
 words spoken ; especially where the father en- 
 tirely disbelieves them. lb. 
 
 6. In hearing of third persons. The 
 mere speaking of slanderous words in the hear- 
 ing of the party affected thereby does not con- 
 stitute slander, unless they were also heard by 
 others. Sup. Ct., 1874, Haile v. Fuller, 2 Hun, 
 519. 
 
 6; The foundation of the action for defama- 
 tion, whether libel or slander, is an injury done 
 to reputation ; and no action can be maintained 
 for words spoken to the plaintiff herself, unless 
 heard and understood by others. N. Y. C. P., 
 1871, Broderick v. James, 3 Daly, 481. 
 
 7. A party who has no ground for an action of 
 slander when he Mrings it, cannot maintain it by 
 founding it upon allegations of the truth of the 
 matters charged contained in the answer, or upon 
 statements of the defendant made on the stand, 
 lb. 
 
 8. Evidence of malice. Under a complaint 
 which contains but one valid count, the plaintiff 
 can only prove the slanderous words charged in 
 that count, or words equivalent thereto ; but he 
 may show that they have been spoken on sever- 
 al different occasions. Sup. Ct, 1866, Bassil v. 
 Elmore, 65 Barb. 627. 
 
 9. Proof of other slanderous words is inadmis- 
 sible, even upon the question of malice. lb. 
 
 10. In an action for words not actionable per 
 se, where the special damage alleged is, that, by 
 reason of hearing it her uncle turned the plain- 
 tiff away from his house, where she resided, the 
 plaintiff must show that such injury was the nat- 
 ural and immediate consequence of the slander ; 
 
 that the defendant uttered the words in the im- 
 mediate hearing of such uncle, or they were 
 communicated to him by one authorized by the 
 defendant to do so ; or tiiat the communication 
 was, as to the person making it, privileged, or 
 otherwise wholly without malice. lb. 
 
 11. Proof that the defendant has repeated the 
 slander again and again, after being -urged not 
 to do so, and followed it up by saying that he 
 can prove it, and expressing a desire to have an 
 opportunity to do so, takes away all ground for 
 pretense that the words are privileged. lb. 
 
 12. Evidence of repetitions of the slanderous 
 words charged, is admissible to show the degree 
 of malice ; and this, even in a case where the 
 words are not actionable /)«r se, and the repeti- 
 tions are not shown to have been in the presence 
 or brought directly to the knowledge of the one 
 acting upon them to the pecuniary injury of the 
 plaintiff. Com. App., 1872, Bassell v. Elmore, 
 48 N. Y. (3 Sick.) 561. 
 
 13. Evidence of a repetition of the slanderous 
 words on other occasions than that charged, 
 though so long previously that an action thereon 
 would be barred by the statute of limitations, is 
 admissible to show the malicious intent of the 
 slanderer. Com. App., 1870, Titus v. Sumner, 
 44 N. Y. (5Hand,)266. 
 
 14. Proof that the defendant has repeatedly 
 used the words complained of concerning the 
 plaintiff, is evidence of express malice. N. Y. 
 Supr. Ct., 1872, Clapp v. Devlin, 35 N. Y. Supr. 
 (S J. & Sp.) 170. 
 
 15. Evidence of a repetition of the alleged 
 slanderous words, or of the utterance of other 
 slanderous words, after the commencement of an 
 action for slander, is not admissible therein for 
 the purpose of showing malice. Ct. App., 1875, 
 Frazier v. McCloskey, 60 N. Y. (15 Sick.) 337. 
 
 16. The plaintiff should never be permitted to' 
 give in evidence words which might be the sub- 
 ject of another action. lb. 
 
 17. Privileged communication. Words 
 used by a person in the conduct of his own af- 
 fairs, where his interest is concerned, and in ref- 
 erence to his interest, are privileged, and an ac- 
 tion of slander cannot be maintained therefor 
 unless the evidence shows that they were not 
 spoken in good faith, with a belief in their truth, 
 and that the defendant was chargeable with ex- 
 press malice. N. Y. Supr. Ct., 1872, Clapp v. 
 Devlin, 35 N. Y. Supr. f3 J. & Sp.) 170. 
 
 18. Thus, where the consignee of a cargo, in 
 settling for the freight, declined to pay the full 
 amount, stating to those representing the vessel, 
 that the captain had robbed the cargo and he 
 could prove.it, — ^e^t^, that the communication 
 was privileged. lb. 
 
 19. A resident of a school district having a 
 daughter to send to school, not only has a right 
 but it is his duty, if a person proposed to be em- 
 ployed as a teacher is of bad character, to com- 
 municate to the trustees such information as he 
 may have in reference to her character, and such 
 communication is privileged, and no recovery can 
 be had therefor without proof of express malice. 
 Sup. Ct., 1875, Harwood v. Keech, 4 Hun, 389. 
 
 20. Where the communication is claimed to be 
 privileged the burden of proving malice is upon 
 the plaintiff, but where it is proved that the de- 
 fendant knew the charge to be false the law 
 implies malice, as it does in other cases where 
 the slanderous charges are not justified, and a 
 denial of malicious intent is of no avail. lb. 
 
 21. Where the known falsity of the charge is 
 sought to be established, not by direct proof, 
 but by facts and circumstances, it is competent 
 
SPECIAL SESSIONS, COURT OF. 
 
 677 
 
 for the defendant to disclaim a malicious intent, 
 lb. 
 
 22. Where the plaintiff in an action for slan- 
 der, liad charged her bastard child upon defen- 
 dant's son, and defendant in attempting to settle 
 the matter of the charge with plaintiff's uncle 
 with whom she resided, charged her with being 
 a common prostitute and with having illicit in- 
 teroonrse with various mefl;^ — Held, that the 
 communication was not privileged. Com. App., 
 1872, Ba$sell v. Elmore, 48 N. Y. (3 Sick.) 561. 
 
 SPECIAL SESSIONS, COtTET OF. 
 
 1. Jurisdiction. The act giving to Courts of 
 Special Sessions of the county of Monroe exclu- 
 sive jurisdiction of "all cases of petit larceny 
 not charged as a second offense," arising within 
 that county, is constitutional and valid ; and the 
 trial and conviction of a person by such a court 
 for that offense, is by a, court of competent 
 jurisdiction. Sup. Ct., 1872, People ex rel. Stetzer 
 V. Rawson, 61 Barb. 619. 
 
 2. Such court having exclusive jurisdiction of 
 that offense, is bound to try a person brought 
 before it charged therewith, and cannot admit 
 to bail. lb. 
 
 3. The Court of Special Sessions of the city 
 and county of New York, has not under ch. 837, 
 Laws of 1855, exclusive jurisdiction of all mis- 
 demeanors, but only of complaints of misde- 
 meanors, that is, cases commenced by complaint 
 in the technical sense of that term ; and it was 
 not the intention of that statute to divest the 
 Courts of Oyer and Terminer of jurisdiction upon 
 indictments. Sup. Ct., 1875, People ex rel. Tweed 
 V. Liscomb, 3 Hun, 760. Eev'd by Ct. App. 
 
 4. Wliere a person charged by a complaint 
 with a misdemeanor, and sent for trial to the 
 General Sessions at his own request, after hav- 
 ing been indicted there for the same offense, 
 and having been arraigned and having pleaded 
 not guilty, procures the complaint to be sent 
 back to the Special Sessions for trial, with the 
 assent of the district attorney, and an indorse- 
 ment to that effect is made on the indictment, 
 such proceedings must be deemed an abandon- 
 ment of the indictment, and the Special Sessions 
 has jurisdiction to try him upon the complaint ; 
 and if he appears there and is tried, he must be 
 deemed to have been tried on the complaint. 
 Sup. Ct., 1875, People ex rel. Walker v. Court of 
 Special Sessions, etc., 4 Hun, 441. 
 
 5. If a person when brought before a commit- 
 ting magistrate on a criminal complaint elects 
 to be tried before the Court of Special Sessions, 
 he thereby waives all objection to the jurisdic- 
 tion of that court. Sup. Ct., 1874, Gill v. People, 
 3 Hun, 187; Aff'd, S. C, 60 N. Y. (15 Sick.) 643. 
 
 6. Trial by one justice. The provision of 
 ch. 383, Laws 1870, authorizing the Court of 
 Special Sessions of the City of New York to be 
 held by less than two police justices, is uncon- 
 stitutional and void. Consequently all crim- 
 inals convicted and sentenced in that court by 
 one justice are entitled to be discharged. Ct. 
 App., 1872, Huber v. People, 44 How. 375: S. C, 
 49 N. Y. (4 Sick.) 132. 
 
 7. Section 49 of ch. 383, Laws of 1870, prov- 
 iding for the holding of the Court of Special 
 Sessions of the city and county of New York by 
 one justice, in case of the disability of the other, 
 is a general law, and is valid, though contained 
 in a local one. Sup. Ct., 1872, People v. Davis, 
 61 Barb. 466. 
 
 8. That section does not declare what shall 
 be such a disability, and must be construed as 
 covering anything which would disable the jus- 
 tice from holding the court, such as sickness, 
 absence from the city, inability to reach the 
 court house, and the like. lb. 
 
 9. A conviction of a criminal before a single 
 justice of that court, must be held valid, where 
 the record states that the other justice was ab- 
 sent through disability, and that jurisdictional 
 fact is not controverted. lb. 
 
 10. Although tWe provision authorizing the 
 court to be held by one justice alone was repeal- 
 ed by implication by sec. 2, ch. 302, Laws of 
 1871, yet that section of the latter act was itself 
 repealed by ch. 438, Laws of 1871, and the pre- 
 vious act was thereby restored. lb. 
 
 11. Commitment, form of. A warrant of 
 commitment in a criminal case, issued by a 
 Court of Special Sessions, directed to a proper 
 oflBcer, commanding him to convey and deliver 
 the prisoner to the " keeper " of the prison 
 where he is to be imprisoned, and requiring such 
 keeper to safely keep him until the expiration 
 of the period for which he was sentenced, therein 
 specified, and until he shall pay a fine therein 
 mentioned, or be discharged by due course of 
 law, is in all respects in the proper form. Sup. 
 Ct., 1872, People ex rel. Stetzer v. Rawson, 61 
 Barb. 619. 
 
 12. Even if the conclusion of such warrant 
 should be held irregular or incongruous, that 
 would not render it unlawful, so as to entitle the 
 prisoner to be discharged on habeas corpus. lb. 
 
 13. It is not necessary to the validity of a 
 warrant of commitment by such court, that it 
 be issued immediately. lb. 
 
 14. No seal is necessary to such warrant, the 
 statute merely requiring it to be under the hand 
 of the magistrate. lb. 
 
 15. Appeal. Whether an appeal is given from 
 the Special to the General Sessions in any case 
 except as provided by art. 4, title 3, part 4, ch. 2 
 of the revised statutes, query ? Sup. Ct., 1874, 
 Gill V. People, 3 Hun, 187 ; Aff'd, S. C, 60 N. Y. 
 (15 Sick.) 643. 
 
 16. If a notice of appeal given at the close of 
 the trial renders void the judgment at the Spe- 
 cial Sessions, the proper remedy of the party 
 convicted, to prevent being committed, would 
 be to offer that court bail for trial at the Gen- 
 eral Sessions, and if that is refused to procure a 
 release upon habeas corpus for fixing bail. A 
 certiorari would be improper. lb. 
 
 SPECIFIC PERFORMANCE. 
 
 1. In general. A bill for specific performance 
 is addressed to the sound discretion of the court ; 
 and the agreement sought to be enforced must 
 be certain in its terms, mutual in its character, 
 fair and just, and founded on an adequate con- 
 sideration, and be in its nature and circum- 
 stances unobjectionable to a court of equity, or 
 that relief will not be granted. Sup. Ct., 1874, 
 Burling v. King, 46 How. 452. 
 
 2. Agreements between attorneys and their 
 clients, stipulating for giving the former a share 
 of the property in litigation as compensation for 
 services, etc., although allowed by sec. 303 of 
 the Code, wlien sought to be specifically enfor- 
 ced, will be carefully scrutinized by the courts, 
 so as to protect the client against every attempt 
 of the attorney to gain any undue advantage 
 over hirn. lb. 
 
678 
 
 SPECIFIC PERFORMANCE. 
 
 8. Of contract to assign leases. Under a 
 contract to convey certain lots in fee, and as- 
 sign corporation tax leases for another lot, the 
 vendor is not bound to assign leases vfhich will 
 give good title, and if the purchaser refuses to 
 accept an assignment of such leases because of 
 subsequent sales for unpaid taxes, the court 
 cannot award him specific performance as to the 
 other lots with an abatement from the contract 
 price of the value of the leasehold interests. Ct. 
 App., 1874, Boyd v. Schlesinger, 59 N. Y. (14 
 Sick.) 301. 
 
 4. Neither, after such refusal, and the lapse 
 of sufficient time to bar his right to specific per- 
 formance, should the court award him specific 
 performance as to the leasehold interest on his 
 consent to accept the assignment, unless the 
 other party also consents thereto. lb. 
 
 5. — contract by guardian. The specific 
 performance of a contract, in any case, is a mat- 
 ter, not of absolute right, but of sound discre- 
 tion in the court ; and especially is this the case 
 where the interests of infants are concerned. 
 Contracts of guardians touching the property of 
 their wards will be enforced only when strictly 
 equitable and for the interest of the infants. Ct. 
 App., 1872, Sherman v. fVright, 49 N. Y. (4 Sick.) 
 227. 
 
 6. It is incumbent upon a plaintiff, seeking to 
 enforce such a contract, to show affirmatively, 
 that it was such a contract as the guardian act- 
 ing for the best interests of the infant might 
 properly have made, and such as the court 
 would have approved and authorized to be 
 made, had authority to make it been asked. lb. 
 
 7. — contract to convey. If a party who 
 advances money to one who is in possession of 
 land under a contract for its purchase, and who 
 has partially paid for and made improvements 
 upon such land, to enable him to pay the bal- 
 ance of the purchase-money, and as a security 
 receives the legal title to the land, agreeing to 
 execute a written contract to the borrower to 
 reconvey to him on his repaying the loan with 
 interest, afterward refuses to execute such writ- 
 ten contract, equity will entertain a bill to com- 
 pel him to do it. Ct. App., Dodge v. Wellman, 
 
 43 How. 427. . 
 
 8. — conveyance by proper description. 
 A purchaser of a lot at an auction sale of city 
 lots, shown on a map prepared by the owner 
 and produced and exhibited to such purchaser 
 at the sale, as corner lots, at the intersection of 
 several streets and a boulevard represented on 
 such map, and sold as such, is entitled to all 
 that he might properly have understood from 
 the map and the auctioneer's language. He can 
 therefore compel a conveyance of such lot as 
 bounded by the street so represented as bound- 
 ing it on the map ; and evidence to show what 
 the defendant inte&ded to sell is inadmissible in 
 an action for specific performance. Sup. Ct., 
 1873, Phillips V. Eiggins, 7 Lans. 314. 
 
 9. — to divide estate. An agreement to 
 obtain a release of opposing claims to the estate 
 of a decedent, is a valid consideration for an 
 agreement to divide the estate, and will support 
 an action for the specific performance of such 
 agreement Com. App., 1871, Doumer v. Church, 
 
 44 N. Y. (5 Hand,) 647. 
 
 10. The fact that the defendant in such ac- 
 tion took the property, charged with the main- 
 tenance of a third party, is no defense. Such 
 charge is not a trust which would be defeated 
 by the conveyance, but an incumbrance ; and 
 the plaintiff will take title subject thereto. lb. 
 
 11. — to donate. Where the owner of lands 
 
 promised to give them to another, and placed 
 the latter in possession, declaring that he had 
 bought them for a home for him and he should 
 have them as long as he lived ; and the latter, 
 on the strength of the promise, had made large 
 improvements thereon, — Setd, in ejectment by 
 such owner, these facts being set up by way of 
 counterclaim, that such promise would be en- 
 forced in favor of the defendant. Ct. App., 1870, 
 Freeman v. Freeman, 43 N. Y. (4 Hand,) 34. 
 
 12. — to ezchange. A party to a contract 
 for the exchange of lands cannot compel the 
 other party to specifically perform his contract 
 to purchase, when he is unable to convey title 
 to the land to be exchanged therefor, by reason 
 of his wife's refusal to release her dower. Ct. 
 App., 1874, Sternberger v. McGovern, 15 Abb. N. 
 S. 257 ; S. C, 56 N. Y. (11 Sick.) 12; AfE'g S. 
 C, 4 Daly, 456. 
 
 13. Whether specific performance by the hus- 
 band with money compensation for the wife's 
 inchoate right of dower, can be awarded in case 
 of an exchange of lands, doubted. lb. 
 
 14. In such a case, where the husband has in 
 good faith endeavored to induce his wife to re- 
 lease her dower, he should not be compelled to 
 give a deed by himself, and indemnify the plain- 
 tiff against his wife's contingent right of dower, 
 but the other party should be given damages for 
 the breach of the contract, and such damages 
 may be given in the same action. S. C, 15 
 Abb. N. S. 257 ; In part rer'g S. C. 4 Daly, 456. 
 . 15. — covenant to repair. A court of 
 equity will not enforce the specific performance 
 of a covenant contained in a lease, on the part 
 of the lessor, to repair damages caused by fire. 
 Ct. App., 1874, Beck v. Allism, 56 N. Y. (11 
 Sick.) 866 ; Bev'g S. C, 4 Daly, 421. 
 
 16. Delivery of deed. An action cannot 
 be maintained to compel a person with whom a 
 deed was deposited in escrow,to deliver the same 
 to the grantees, after the performance of the 
 condition, or happening of the event, on which 
 it was to be delivered, if the grantor reserved 
 the right, when so depositing it, to withdraw it, 
 and subsequently directed the depositary to de- 
 stroy and not deliver it. Ct. App., 1874, Stanton 
 V. Miller, 58 N. Y. (13 Sick.) 192 ; Revlg S. C, 
 
 65 Barb. 58. 
 
 17. Lands in another State. The Superior 
 Court has as full and complete jurisdiction of 
 actions for specific performance as has the Su- 
 preme Court, and it can decree the performance 
 of a contract for the sale of lands lying in an- 
 other State, where the parties to the action re- 
 side in this State or the court has obtained ju- 
 risdiction over them by service of process or 
 otherwise. N. Y. Supr. Ct., 1875, Baldwin v. 
 Talmadge, 39 N. Y. Supr. (7 J. & Sp.) 400. 
 
 18. Uncertain grantees. A contract to as- 
 sure to a certain person and his family a house 
 and lot, by placing a deed in escrow, or by will, 
 the title to be given to such members of the 
 family as the grantor might choose, cannot be 
 specifically enforced because of a want of cer- 
 tainty in respect to the persons to whom the 
 conveyance or devise is to be made. Ct. App., 
 1874, Stanton v. Miller, 58 N. Y. (13 Sick.) 192 ; 
 Eev'g S. C, 65 Barb. 58. 
 
 19. Unilateral contract. Although the 
 party who files a bill for the specific perform- 
 ance of a contract for the conveyance of land 
 was not himself bound thereby, that does not 
 prevent his maintaining the action ; yet, if he 
 had merely an option, or right of election, of be- 
 coming the purchaser at any time within three 
 months from the date of the contract, he cannot 
 
SPECIFIC PERFORMANCE. 
 
 679 
 
 (naintain the action unless lie exercised his op- 
 tion within that time. Sup. Ct., 1874, Codding 
 y. Wamsley, 1 Hun, 686; AfE'd, 60 N. Y. (16 
 Sick.) 644. 
 
 20. Failure to pay in time. Specific per- 
 formance of a coiftract for the sale of lands 
 will be decreed in favor of a purchaser at auc- 
 tion, notwithstanding his failure to pay the bal- 
 ance of the purchase-money within the time 
 specified, or to tender or offer strict perform- 
 ance on his part, and the attempt of the ven- 
 dors to rescind by declaring the sale void ; where 
 it appears that the plaintiff has made repairs 
 and improvements on the premises as pur- 
 chaser ; that the vendors have received and re- 
 tained the 10 per cent, required to be paid on 
 the day of sale, and have afterward executed 
 and tendered a deed and demanded perform- 
 ance by the purchaser ; and that they are not 
 embarrassed with any new relations contracted 
 with other parties. Sup. Ct, 1870, McClaskey 
 V. Mayor, etc. of Albany, 64 Barb. 310. 
 ' 21. Such acts of the vendors would render 
 the contract valid and obligatory, even though 
 the auctioneer's certificate was defective. lb. 
 
 22. Strict performance ■waived. Under a 
 contract whereby one party is to make a pay- 
 ment on the 10th of April, and the other party, 
 at tlie time of making such payment, is to con- 
 vey land, if neither party is ready or offers to 
 perform on the contract day, each impliedly 
 waives strict performance as to time ; and if the 
 former party tenders tlie payment after that day, 
 and it is not accepted, he is entitled to the aid 
 of equity to enforce specific performance of the 
 contract. Sup. Ct., 1872, Van Campen v. Knight, 
 63 Barb. 205. 
 
 23. Time imiaatericil. Where the contract 
 does not by its terms make time material, if a 
 delay in payment is excused, and the situation 
 of the parties and property unchanged, and the 
 party reasonably vigilant, the court will relieve 
 from the consequences of the delay, and grant 
 specific performance. Ct App., 1872, Hubbell v. 
 Von Schoening, 49 N. Y. (4 Sick.) 326 ; S. C, 
 again, 2 Hun, 376. 
 
 24. A party to contract for the sale of land 
 may be held to strict performance as to time, 
 and put in default for non-performance ; but to 
 do that, the party seeking to put the other in 
 default must not only be ready and willing to 
 perform, but must tender performance on his 
 part at the time and demand performance from 
 the other ; and then, whether equity will relieve, 
 will depend on the special circumstances of the 
 case. lb. 
 
 26. Parties to action. All who are inter- 
 ested in liaving a contract performed must join 
 in a suit therefor, or a valid excuse for their not 
 joining with the plaintiff must be shown. Sup. 
 Ct, 1876, McCotter v. Lavirence, 4 Hun, 107. 
 
 26. The defect of parties plaintiff caimot be 
 obviated by directing a conveyance to be made 
 to the party suing and his co-owners and their 
 assigns, without naming them, as the rights of 
 such co-owners would remain to be established, 
 and they have a right to elect whether they will 
 accept a specific performance, or sue for dam- 
 ages, lb. 
 
 27. Assignee of vendee. Where one who 
 has contracted to convey land on payment of a 
 certain sum and interest, afterward advances 
 money to the purchaser under an agreement that 
 he shall retain the title until repayment of such 
 advances, in addition to the purchase-money, 
 an assignee of the purchaser, though without 
 knowledge of the agreement as to aSvances, 
 
 cannot compel him to convey without payment 
 thereof, his equities being superior to those of 
 the assignee. Sup. Ct., 1863, Reeves v. Kimball, 
 63' Barb. 120. 
 
 28. Party in default. Where a lessee of 
 lands for a term of five years with the privilege 
 of purchasing at any time within the first three 
 years by paying all arrears of rent and a stipu- 
 lated sum, notified the heirs of the lessor, then 
 deceased, that he intended to purchase their re-« 
 spective shares and requested deeds of the same, 
 but did not, within the three years, tamder the 
 stipulated price or the rent which he was in 
 arrears, — Held, that he could not demand a 
 specific performance ; and that as he in his 
 complaint based his claim for relief upon the 
 assumption that the heirs could convey the 
 requisite title, the existence Of an incumbrance 
 on the premises did not excuse his neglect to 
 make the tender. Com. App., 1872, Kerr v. 
 Purdy, 51 N. Y. (6 Sick.) 629 ; Eev'g S. C, 50 
 Barb. 24. 
 
 29. The vendor of lands, before asking a judg- 
 ment for specific performance, must make a case 
 showing a moral certainty that the purchaser 
 would receive such a title as he had contracted 
 to take. Com. App., 1872, Hinckley v. Smith, 61 
 N. Y. (6 Sick.) 21. - 
 
 30. A tender of a deed without the release of 
 existing incumbrances will not suffice, although 
 the vendor may have previously arranged with 
 the incumbrancers to exchange their securities 
 for the one to be given by the purchaser. Not 
 is the necessity of a proper tender obviated by 
 notice from the purchaser that he will not fulfil. 
 Hunt, C, dissents. lb. 
 
 31. An unnamed and undisclosed prin- 
 cipal cannot be compelled specifically to per- 
 form a contract under seal for the conveyance 
 of land executed by another person in his own 
 name and acting apparently in his own behalf, 
 although made for the benefit of such principal. 
 N. Y. Supr. Ct, 1875, Briggs v. Partridge, 39 N. 
 Y. Supr. (7 J. & Sp.) 339. 
 
 32. Pleadings. A complaint which asks first 
 for performance by the vendors of a modified 
 agreement, but adds that if it should be adjudg- 
 ed that the modification was unauthorized and 
 invalid, then the defendants may be adjudged 
 to convey the premises upon payment of the 
 residue of the purchase-money with interest, on 
 such terms as shall be just, sufficiently expresses 
 the readiness and willingness of the plaintiff to 
 perform. Sup. Ct, 1870, McClaskey v. Mayor, 
 etc. of Albany, 64 Barb. 310. 
 
 33. In an action for the specific performance 
 of a parol contract to reconvey to the mortgagor 
 premises sold under a decree of foreclosure, if 
 the defendants deny the agreement set out in 
 the complaint, and set up an agreement to recon- 
 vey on different terms and conditions, the con- 
 tract set up in the answer cannot be held suffi- 
 cient to take the case out of the statute of frauds, 
 because it does not correspond with that alleged 
 in the complaint Sup. Ct, 1873, Morrill v. 
 Cooper, 65 Barb. 512. 
 
 84. Grounds for denial of relief. A part 
 payment of the purchase-money is not sufficient 
 to take an agreement for the sale of land out 
 of the statute of frauds, yet, in equity, payment 
 of the whole of the purchase-money will be suffi- 
 cient for that purpose. lb. 
 
 35. Possession, in order to take a case out of 
 the statute of frauds, must be referable to the 
 agreement of which performance is sought lb 
 
 36. Acquiescence by the purchaser of mort- 
 gaged premises at a foreclosure sale, in the con- 
 
680 
 
 SPECIFIC PERFORMANCE. 
 
 tinued possession by the mortgagor for 10 or 11 
 months after the sale, and during a whole season 
 for the beneficial enjoyment of the premises, is 
 significantly against his right to avail himself of 
 the statute of frauds against his verbal contract 
 to reconvey. lb. 
 
 87. Where a mortgagee, having bought the 
 mortgaged premises at a sale under a decree of 
 foreclosure, at about one-fifth their value, agreed 
 »by parol to waive the sale and reconvey the 
 premises to the mortgagor, on payment of the 
 mortgage debt with interest and costs, and 
 afterward refused to recaive the money when 
 tendered, or to reconvey the premises, and it 
 appeared that the mortgagor, relying upon the 
 agreement of the mortgagee, had acquiesced in 
 the sale, and omitted to move to set it aside in 
 proper time therefor, — Held, that to permit the 
 mortgagee to avoid liis agreement, under such 
 circumstances, would be to allow the statute of 
 frauds to be used as an instrument of fraud ; 
 and that specific performance of the agreement 
 should be decreed. lb. 
 
 38. Where the purchaser of mortgaged prem- 
 ises having agreed by parol to sell the premises 
 back to the mortgagor, for a slight advance 
 upon the purchase-price, the latter procured his 
 brother to make the purchase and had the con- 
 veyance made to him, he himself remaining in 
 possession for some time, under a parol agree- 
 ment with his brother, that he should receive 
 the rents and profits, and with them and funds 
 from other sources, refund to his brother the 
 amount advanced by him, and the latter should, 
 on such payment, reconvey the premises, no con- 
 sideration being paid for such agreement, and 
 the brother afterward, and before suit, taking 
 the exclusive possession of the premises, — Held, 
 that the contract was void by the statute of 
 frauds, and could not be enforced in equity. 
 Sup. Ct., 1871, Loomis v. Loomis, 60 Barb. 22. 
 
 39. In such case, there could be no valid trust 
 in favor of the mortgagor, as tliere was no writ- 
 ing, no estate in him to put in trust, and no 
 valuable consideration paid py him. lb. 
 
 40. Neither could the conveyance be a mort- 
 gage, it being in the form agreed upon by the 
 parties, and the mortgagor having no estate in 
 law to mortgage. lb. 
 
 41. Delay. Although equity will sometimes 
 refuse specific performance to a party who has 
 been guilty of laches and great delay, it will not 
 do so where the delay has been by common con- 
 sent, and the defendant has not been in any way 
 injured tliereby. Com. App., 1871, Leaird v. 
 Smith, 42 How. 56 ; S. C, 44 N. T. (5 Hand,) 618. 
 
 42. A vendee of land, under a contract which 
 requires the payment of ^ portion of the pur- 
 chase-money on a specified day, and the balance 
 to be then secured by bond and mortgage, " to 
 be delivered on the delivery of a deed," is not 
 in default so as to defeat his right to a specific 
 performance, if he makes the payment at the 
 time specified, or at a subsequent day to which 
 the time for payment has been extended by the 
 vendor at his request, until the vendor tenders 
 the deed. Ib.~ 
 
 48. So long as the vendor makes no tender of 
 the deed, or the vendee of the bond and mort- 
 gage, the contract subsists ; and either party 
 may make the proper tender and insist upon 
 specific performance at any time, until barred 
 by the statute of limitations. lb. 
 
 44. Delay on the part of the purchaser, if 
 caused by the vendor, is not sufficient to defeat 
 an action by the former for specific performance. 
 So held, where, at the time the purchaser ap- 
 
 plied for his deed, the vendor said he would have 
 to wait until a suit, then pending on appeal, iu 
 which judgment had been recovered against the 
 vendor, was settled, and the purchaser, on being 
 ipformed thereof, replied, " very good, " and 
 waited accordingly. Sup. Ct:, Delavan v. Duncan, 
 4 Hun, 29. 
 
 45. If a vendee of lands, after refusing to ac- 
 cept a deed because of incumbrances, delays for 
 three and a half years before commencing an 
 action for specific performance, without in the 
 meantime giving the vendor any intimation of 
 his intention to enforce the contract^ and with- 
 out showing any excuse for the delay except 
 that he was not aware of the removal of the in- 
 cumbrances, the vehdor remaining in possession 
 during the wliole time, he is guilty of such 
 laches as will prevent his enforcing the contract. 
 Bapai,lo and Peckhau, JJ., dissent. Ct. App., 
 1872, Delavan v. Duncan, 49 N. Y. (4 Sick.) 485. 
 
 46. Independent of any statute of limitations, 
 a court of equity would not decree specific per- 
 formance of a contract for the sale of lands, 
 where the vendee has delayed action for 17 
 years after refusal of the vendor to perform, 
 and in the meantime the property has greatly 
 iner^sed in value, and the rights of new parties 
 have intervened. Ct. ^pp., 1872, Peters v. Dela^ 
 plaine, 49 N. Y. (4 Sick.) 362. 
 
 47. The statute of limitations does not affect 
 the general doctrines of equity, or operate to 
 extend the time within which actions for specific 
 performance may be brought ; but the question 
 still remains to be decided in each action, al-. 
 though brought within the statutory limit as to 
 time, whether, under its peculiar circumstances, 
 equity and good conscience require that the con- 
 tract be specifically performed, or thatthe party 
 be left to his remedy at law. lb. 
 
 48. Where payment is to accompany or pre- 
 cede delivery of the deed, but no precise time is 
 fixed for either by the contract, it is to be made 
 in a reasonable time or upon request ; and a 
 delay of three years and upwards, without any 
 excuse, after request made, is such laches as will 
 preclude a specific performance in behalf of the 
 party in default. Ct. App., 1872, Finch v. Park- 
 er, 49 N. Y. (4 Sick.) 1. 
 
 49. Fraud or mistake. Courts of equity 
 will not decree specific performance in cases of 
 fraud or mistake, or of hard and unconscionable 
 bargains, or when the decree would produce in- 
 justice, or would be inequitable under all the 
 circumstances. Com. App., 1874, Margraf v. 
 Muir, 67 N. Y. (12 Sick.) 186. 
 
 50. Where the purchaser knew the value of 
 the property, and that it had recently risen in 
 value, and that it had been sold for taxes, and 
 the vendor, not knowing those facts, agreed to 
 convey for an inadequate price, she having only 
 a dower right in the premises, but supposing 
 that she could procure authority to sell for her 
 minor children, and that those who were of age 
 would unite with her in the conveyance, — Hdd, 
 that specific performance would not be decreed, 
 and that the court should allow the plaintiff 
 merely nominal damages in addition to the sum 
 paid by him on the contract. lb. 
 
 51. Imperfect title. A contract which pro- 
 vides that the vendor shall procure a search of 
 record showing a title free of all incumbrances 
 by the day appointed for delivery of the deed, 
 and shall convey by a full covenant warranty 
 deed, entitles the purchaser to a title perfect of 
 record as well as free from all incumbrances j 
 and if the abstract of title shows the absence 
 from record of one deed in the chain of title. 
 
SPECIFIC PERFORMANCE. 
 
 681 
 
 speciflc performance of the contract will not be 
 decreed, unless the vendor can at the time of tlie 
 trial give such title as the purchaser is entitled 
 to, even though the latter remains in possession 
 of the land. Sup. Ct., 1872, Caray v. Mathew- 
 son, 44 How. 80 ; S. C, 7 Laos. 80. 
 
 52. In such a case the title is prima facie de- 
 fective, and the purchaser will not be compelled 
 to take it, even though it appears by parol evi- 
 dence that a deed supplying such defect had 
 once been given and had subsequently been 
 burned, and that the grantor therein took back 
 a mortgage of the premises containing a recital 
 that they were the same premises that were 
 conveyed b^ him to the mortgagor, which mort- 
 gage had subsequently been foreclosed, but does 
 not clearly appear that the wife of such grantor 
 joined in such deed, or is in any way estopped 
 from claiming dower in the premises. lb. 
 
 53. A judgment for the defendant in such a 
 case should contain a provision declaring the 
 contract between the parties null and void, thus 
 enabling the plaintiff to maintain ejectment for 
 the land, and in such action to recover the rents 
 and profits for the time the defendant has been 
 in possession. lb. 
 
 54. Where there is an existing defect in the 
 title to lands, specific performance of a contract 
 for their purchase will not be enforced, no mat- 
 ter how great the improbability that the defect 
 will ever discommode the purchaser. Ct. App., 
 1871, Brooklyn Park Commissioners v. Armstrong, 
 45 N. Y. (6 Hand,) 234. 
 
 55. Under a contract for the purchase of real 
 estate, which provides that, in case the vendor 
 is unable to give good title at the time named 
 therein, or in case an injunction or attachment 
 shall issue to prevent her disposing of the prop- 
 erty, the amount paid on the contract shall be 
 refunded and the contract rescinded, the pur- 
 chaser has no right to insist upon the vendor 
 furnishing affidavits of the solvency of her grant- 
 or as a condition of completing the purchase, 
 and if he does it is equivalent to objecting to the 
 title, which entitles the vendor to rescind, and 
 specific performance cannot be enforced. Sup. 
 Ct., 1875, Wormser v. Garvey, i Hun, 476. 
 
 56. Incumbrances undischarged. Speci- 
 flc performances of a contract for the purchase 
 of land will not be decreed in favor of the vendor, 
 if on the day when he was bound to convey, 
 clear of incumbrances, there were existing liens 
 on the premises, not released, or discharged, and 
 no extension of time for performance has been 
 agreed upon, even though a verbal arrangement 
 may have been made that the holders should 
 discharge them on receiving an assignment of 
 the obligation to be executed by the purchaser 
 under the provisions of his contract. Sup. Ct., 
 1874, Reede v. Schneider, 47 How. 379 ; S. C, 1 
 Hun, 121. 
 
 57. Contract void for uncertainty. A 
 contract to sell and convey land as soon as the 
 purchaser " secures " the payment of the pur- 
 chase price, which contains nothing to fix the 
 terms of credit, or the kind or nature of the se- 
 curity to be given, and does not show that any 
 part rests in parol, is void for uncertainty, and 
 cannot be specifically enforced. Sup. Ct., 1866 
 Fo<a V. Webb, 59 Barb. 38. 
 
 58. In an action to enforce specific perform- 
 ance of such a contract, the question to be de- 
 termined is whether the contract was valid when 
 made, not whether a reasonable credit has al- 
 ready been given. lb. 
 
 59. Tender. If at the time fixed by a contract 
 for the conveyance of lauds " by a good and suf- 1 
 
 ficient deed," the vendor is unable to eonvey an 
 indefeasible title, the vendee is not bound to 
 tender the purchase money, but may, without 
 doing so, maintain an action for specific perform- 
 ance. Ct. App., 1872, Delavan v. Duncan, 49 N. 
 Y. (4 Sick.) 485. 
 
 60. The decree. Where the grantee of va- 
 cant lots from which no income was derived, but 
 which his grantor had previously contracted to 
 convey to another, paid taxes accruing thereon 
 while in his possession and also the interest upon 
 a mortgage which the vendee in such contract 
 had agreed to assume, — Held, that in decreeing 
 speciflc performance at suit of the vendee, the 
 court should charge him with the amounts so 
 paid. Ct. App., 1873, Duffy v. O'Donovan, 52 N. 
 Y. (7 Sick.) 634. 
 
 61. Such payments cannot be considered vol- 
 untary, as the grantee of the vendor was bound 
 to protect the title which, in equity, he held in 
 trust for the vendee. lb. 
 
 62. Compensation for deficiency. Al- 
 though, as a general rule, equity will decree the 
 speciflc performance of a contract for the pur- 
 chase of land, notwithstanding a slight or imma- 
 terial deficiency in the estate conveyed or incum- 
 brance affecting the title ; yet, in all such cases, 
 the decree must provide for compensation to the 
 purchaser. N. Y. Supr. Ct., 1870, Beyer v. Marks, 
 2 Sweeny, 715. 
 
 63. Before decreeing performance in such a 
 case, the court should be satisfied that the mat- 
 ter complained of is one capable of compensa- 
 tion, and that the purchaser would have de- 
 clined the contract had he known of the defect 
 at the time of purchase. lb. 
 
 64. Upon decreeing speciflc performance of a 
 verbal contract for the sale of lands, on the 
 ground of part performance, the court will be 
 governed by the same principles in adjusting the 
 equities of parties as upon a valid written con- 
 tract, allowing an abatement for any deflciency 
 in the estate ; but, where the contract is for a 
 sale of land and personalty together, it cannot, 
 in decreeing a conveyance of the land, also pro- 
 nounce personal judgment in damages against 
 the defendant on a warranty of the personalty. 
 Ct. App., 1871, Harsha v. Reid, 45 N. Y. (6 
 Hand,) 415. 
 
 65. — for improvements. In an action by 
 executors to compel a purchaser to complete his 
 contract with them for the purchase of a house 
 and premises, which they in good faith supposed 
 they had power under the will to convey, where- 
 in the defendant alleges and the court finds that 
 the plaintiffs had no such power, the court will 
 not order the defendant to be remunerated for 
 improvements voluntarily made by him on the 
 premises, but will allow him in reduction of the 
 rental value thereof while occupied by him the 
 purchase money, interest and taxes paid by him. 
 Sup. Ct. Sp. T., 1873, McMulkin v. Hoveu, 46 
 How. 405. 
 
 66. Relief in damages. In an action to en- 
 force the specific performance of an agreement 
 merely, where the court finds the plaintiff not 
 entitled to the relief asked, it cannot, without 
 amendment, award him damages for the non- 
 performance, and upon such amendment the 
 parties are entitled to a jury trial. Ct. App., 
 ISli, Beck V.Allison, 56 N. Y. (11 Sick.) 366; 
 Eev'g S. C, 4 Daly, 421. 
 
 67. A judgment for damages is improper, in 
 an action for specific performance, unless it ap- 
 pears on the trial that the vendor is unable to 
 perform ; but proof that he said he was not able 
 to perform is not sufficient for that purpose. N. 
 
682 
 
 SPIRITUOUS LIQUORS— STATUTES. 
 
 Y. Supr. Ct., 1873, Stevenson v. Spratt, 86 JT. T. 
 Supr. (3 J. & Sp.) 496. 
 
 68. Where the defendant's inability to perform 
 is established, the court may ascertain and award 
 damages, and can make those damages a specific 
 lien on the defendant's interest in the land to the 
 extent of the advance made by the plaintiff. No 
 such lien can be given for general damages, sjich 
 as counsel fees for examination of title. lb. 
 
 69. The judgment should conform to the find- 
 ings of law ; but where the judgment recites 
 that " it appears that the premises have been 
 sold under a prior m6rtgage lien, leaving certain 
 surplus moneys," and then declares the lien for 
 advances, etc. to be upon such surplus moneys, 
 and it is conceded on appeal that such fact did 
 occur after the trial and before the entry of 
 judgment, so that the appellant cannot be bene- 
 fited by a new trial, the judgment will not be re- 
 versed for that reason. lb. 
 
 70. In an action against a corporation to com- 
 pel a specific performance of its contract to take 
 a lease of premises, where it appears that, since 
 the commencement of the action, the- company 
 has discontinued business, become consolidated 
 with another company, and its property is in the 
 hands of a receiver, — Held, that, assuming that 
 specific performance would have been proper 
 had the company been in a condition to perform, 
 it was not a case where damages could be award- 
 ed in lieu thereof. Com. App., 1874, StancUff\. 
 Ross, 67 N. T. (12 Sick.) 643. 
 
 SPIEITUOUS LIQUOES. 
 See Excise. 
 
 SPLITTING DEMANDS. 
 See Actions. 
 
 STAMPS. 
 
 1. Validity of revenue act. The TJ. S. 
 Eevenue Act, so far as it attempts to prescribe 
 for the States a rule for the transfer of property 
 within them by declaring a deed void for an 
 omission to afiix a stamp thereto, is unconstitu- 
 tional. Ct. App., 1872, Moore v. Moore, 47 N. Y. 
 (2 Sick.) 467. 
 
 2. The revenue act, so far as it prescribes a 
 rule of evidence, is operative only in the fede- 
 ral courts ; and an objection to the admission of 
 an instrument in evidence, in a state court, for 
 want of a stamp, is untenable. Ct. App., 1870, 
 People ex rel. Barbour v. Gates, 43 N. Y. (4 Hand,) 
 40. 
 
 3. AfBzing in court. Where the omission to 
 affix the proper revenue stamps to instruments 
 requiring them was without intent to evade the 
 provisions of the revenue law, they may be 
 stamped at the trial and admitted in evidence. 
 Sup. Ct., 1869, Frink v. Thompson, 4 Lans. 489. 
 
 4. Contract in tivo parts. Where an as- 
 signment and a contemporaneous memorandum 
 signed by the parties are to be construed to- 
 gether, as forming one contract, if the assign- 
 ment is properly stamped that is sufficient. 
 Sup. Ct., 1865, Parks v. Comstock, 59 Barb. 16. 
 
 5. Unintentional omission. The omission 
 of a revenue stamp from a promissory note by 
 
 mistake and without any intent to evade the 
 revenue laws, does not render such note void in 
 its inception. Every legal intendment is against 
 such intent, and it must be clearly established 
 by sufficient and satisfactory evidence or it will 
 not be held to exist. Sup. Ct., 1872, Baker v. 
 Baker, 6 Lans. 609. 
 
 STARE DECISIS. 
 See EoBUEB adjudication. 
 
 STATUTES. 
 
 I. Local and public acts 682 
 
 n. Repeal of statutes 682 
 
 HI. CONSTEUCTION 684 
 
 L Local and public acts. 
 
 1. What is local. An act is local, within the 
 meaning of the constitution, which in its subjects 
 relates to a portion only of the people of the 
 State or to their property, and may not, either 
 in its subject, operation or necessary results, 
 affect the people of the State or their property 
 in general. Ct. App., 1870, People v. Supervisors 
 of Chautauqua, 43 N. Y. (4 Hand,) 10. 
 . 2. An act making an appropriation from the 
 State treasury for the erection of a bridge at a 
 particular locality, and providing for the assess- 
 ment of any surplus required for that purpose 
 upon certain counties named, — Beld, general in 
 respect to the former and local as to the latter 
 provision. lb. 
 
 8. What are public. An act which concerns 
 the administration of public justice, like one re- 
 specting a court, though it be of limited juris- 
 diction and its sitting confined to a specified 
 locality, is a public law ; a law which affects, 
 and in which the public generally are interested. 
 Sup. Ct., 1872, People v. Davis, 61 Barb. 456. 
 
 4. The provision of sec. 49, ch. 383, Laws of 
 1870, relative to the Court of Special Sessions 
 of New York City, though inserted In a local 
 act, is itself a public act, as it applies to and 
 affects the public at large, and is valid. lb. 
 
 6. A provision in a statute, that all actions 
 against a certain corporation shall be brought 
 in a specified court, is of a general character, 
 and constitutes the act a public one, although 
 its title indicate that it is a local act and its pro- 
 visions generally be of local application. N. Y. 
 C. P., 1869, McLain v. Mayor, etc. of New York, 
 8 Daly, 32. 
 
 II. Repeal op statutes. 
 
 6. What operates as. Except when express 
 terms are employed, one statute will operate as 
 a repeal of a former statute to the extent only 
 that the two are repugnant. Ct. App., 1874, 
 Mongeo v. People, 65 N. Y. (10 Sick.) 613. 
 
 7. The provisions of the act relating to the 
 procurement of abortions (see. 1, ch. 631, Laws 
 of 1869), declaring the offenses therein specified 
 to be manslaugliter, were repealed by ch. 181, 
 Laws of 1872, prescribing a different punish- 
 ment for the same offenses thereafter committed, 
 only as to such future offenses ; remaining; 
 as to prior offenses, in full force and effect. lb. 
 
 8. 'The power to regulate commerce between 
 the States and foreign nations, authorizes Con- 
 
STATUTES. 
 
 683 
 
 gress to legislate upon that subject as well in 
 ports and harbors as upon the high seas ; yet, 
 its legislation does not repeal, but merely sus- 
 pends the State law, and the repeal or modiflcar 
 tion of the United States law so as to permit the 
 operation of the State law on that subject re- 
 stores . its validity and force. Ct. App., 1874, 
 Henderson v. Spqford, 69 N. Y. (14 Sick.) 131 ; 
 Aff'g S. C, 10 Abb. N. S. 140 ; 4 Daly, 861. 
 
 9. If the acts for the licensing and govern- 
 ment of pilots (ch. 467, Laws of 1853, as amend- 
 ed by ch. 248, Laws of 1857), requiring masters 
 of vessels to take a pilot and pay pilotage, were 
 suspended by the act of Congress of 1866 (14 
 U. S. Stats, at Large 257), they were made again 
 operative by the amendatory act of 1867 (14 U. 
 S. Stats, at Large 412), declaring, that nothing 
 in said act shall be construed to annul or affect 
 any existing State law requiring vessels enter- 
 ing or leaving its ports to take a pilot. lb. 
 
 10. Construction of repealing clause. A 
 clause in a statute purporting to repeal other 
 statutes is subject to the same rules of interpre- 
 tation as other enactments, and the intent must 
 prevail over literal interpretations, and when, by 
 subsequent enactments at the same session the 
 legislature impliedly recognize certain provisions 
 of the statutes, in terms repealed, as still sub 
 sisting, and a literal interpretation would work 
 great public injury, the repealing clause would 
 be given a qualified construction, and such pro- 
 visions allowed to stand. Ct. App., 1872, Smith 
 V. People, 47 N. Y. (2 Sick.) 330. 
 
 11. Repeal by implication. Bepeals by 
 implication are not favored in the law, but to 
 have that effect the subsequent statute must be 
 inconsistent with the former, or show some in- 
 tention to abrogate it. Sup. Ct. Sp. T., 1875, 
 In matter of McConihe v. Exchange Bank ofLan- 
 singburgh, 49 How. 422. 
 
 12. The power conferred on the chancellor by 
 ch. 260, Laws of -1838, in respect to the examina- 
 tion of monied institutions, was not taken 
 away by ch. 363, Laws of 1840, or ch. 218, Laws 
 of 1843, or ch. 164, Laws of 1851, but the pro vis 
 ions of the latter act are cumulative merely. lb. 
 
 13. Although repeal by implication is not 
 favored, and is not allowed save where incon- 
 sistency is plain and unavoidable, yet a subse- 
 quent statute making a different provision on 
 the same subject is not to be construed as an 
 explanatory act, but as an implied repeal of the 
 former, so far as the two are incompatible. Sup. 
 Ct., 1872, People ex rel. Navano v. Van Nort, 64 
 Barb. 205. 
 
 14. The provision of sec. 13, ch. 383, Laws of 
 1870, giving the commissioner of public works 
 of New York city authority in respect to water 
 meters, is in conflict with the provisions of sec 
 104 of the city charter (ch. 137, Laws of 1870), 
 in respect to contracts by heads of departments, 
 and repeals those provisions by implication. lb. 
 
 15. When an amendment to a statute simply 
 provides for an addition to one section, without 
 indicating the existence of any purpose of 
 changing any other section thereby, and such 
 addition is not repugnant to a provision in 
 anotlier section, but both can well stand to- 
 gether, no repeal by implication is effected by 
 the later enactment. Sup. Ct, 1874, Spratt v. 
 Huntington, 48 How. 97 ; S. C, 2 Hun, 341. 
 
 16. Statutes which are in pari materia, passed 
 at the same session of the legislature, are to be 
 construed together ; and a re-enactment of the 
 provisions of one statute in a subsequent one 
 containing a^different scheme relating to the 
 same subject, the operation of which by its 
 
 terms is suspended until a fixed time, will hot be 
 held to work a repeal, or to suspend the opera- 
 tion of those provisions in the former act by 
 implication. The first seven sections of ch. 29, 
 Laws of 1865, therefore, — Held, not to have 
 been repealed by chapter 41 of the same year. 
 Com.- App., 1872, Powers v. Shepard, 48 N. Y. 
 (3 Sick.) 540 ; Rev'g S. C, 49 Barb. 419 ; 35 
 How. 53. 
 
 17. Where the legislature had passed two acts 
 for the specific purpose of distributing the prop- 
 erty of a rural cemetery association among its 
 creditors, and proceedings for a sale thereunder 
 had been instituted and prosecuted to judgment, 
 — Held, that an intention to repeal such acts and 
 abrogate the proceedings would not be adopted 
 by implication, nor from general or equivocal 
 words. Ct. App., 1872, In the matter of the Ever 
 greens, 47 N. Y. (2 Sick.) 216. 
 
 18.' The provision of eubd. 4, sec. 274 of the 
 Code, gives a sufficient remedy for the neglect 
 of a plaintiff to bring his case to trial within a 
 reasonable time after issue, and the provisions 
 of the Revised Statutes on that subject are there- 
 by repealed by implication. The necessity for 
 the stipulation provided for by tlie rules formed 
 under those provisions is also obviated by the 
 permission given to the defendant to notice and 
 bring the cause to trial on his own behalf. Sup. 
 Ct. Sp. T., 1871, Perkins v. Butler, 42 How. 102. 
 
 19. The provisions of sec. 3, title 1, ch. 10, 
 part 3, E. S. (2 Edm. Stats. 686), giving costs to 
 plaintiffs in certain actions relating to real estate, 
 etc., witliout regard to the amount of the re- 
 covery, are by implication repealed by the pro- 
 visions of the Code as to costs, being inconsis- 
 tent therewith. Sup. Ct., 1872, Turner v. Van 
 Riper, 43 How. 33. 
 
 20. The object of sec. 303 of the Code was 
 threefold : 1. To abolish the fee bill prescribed 
 by the Revised Statutes ; 2. To set aside the 
 rule- established by the courts as to agreements 
 between clients and attorneys as to compensa- 
 tion ; 3. To establish a new measure of indem- 
 nity to the successful party for his expenses in 
 the action. lb. 
 
 21. The provision of the usury law (1 R. S., 
 772, sec. 5 ; 1 Edm. Stats. 726), prescribing the 
 forfeiture of the whole debt as the penalty for 
 usury, is in effect repealed by ch. 16.3, Laws of 
 1870 as to State banks organized under the 
 general banking law, being inconsistent with the 
 provisions of that act, which allows such banks 
 to take seven per cent, interest in advance, re- 
 duces the penalty to the forfeiture of interest 
 only, and repeals aU acts inconsistent therewith. 
 Sup. Ct., 1874, Farmers Bank of Fayetteville v. 
 Hale, 15 Abb. N. S. 276. 
 
 22. The rule that a statute should be so con- 
 strued as, if possible, to give full effect to all its 
 provisions, recognized and approved. lb. 
 
 23. The declaration in the second section of 
 the act of 1870, that it is the true intent of the 
 act to place such banks on an eqjiality in those 
 particulars with national banks, must be held to 
 refer to such banks organized under the act of 
 congress, and existing in States or territories 
 where the rate is not limited by law, in order to 
 give effect to the words limiting the forfeiture 
 to the interest. lb. 
 
 24. Special by general laws. Laws which 
 are special and local in their application, are 
 not deemed repealed by general legislation, ex- 
 cept upon the clearest manifestation of an in- 
 tent by the legislature to effect such repeal, and 
 ordinarily an express repeal by some intelligible 
 reference to the special act is necessary, Ct. 
 
684 
 
 STATUTES. 
 
 App., 1874, People v. Quigg, and Same v. Florence, 
 69N. Y.'(14Sick.) 83. 
 
 25. A special act conferring power upon vil- 
 lage authorities to sue for and recover penalties 
 incurred under the excise law, is not repealed by 
 the subsequent general act providing that penal- 
 ties imposed by that act shall be sued for and re- 
 covered in the name of the overseers of the 
 town in wMch the penalty was incurred, but 
 nowhere mentioning the special act. Sup.Ct., 
 1875, Village of Deposit v. Vail, 5 Hun, 310. 
 
 26. A special act incorporating a society and 
 giving it power " to receive by gift or devise, in 
 the same manner and subject to the same 
 restrictions as provided in the general laws for 
 the incorporation of religious and benevolent 
 associations," passed in 1849, makes it subject to 
 the restrictions of eh. 819, Laws of 1848, declar- 
 ing that no devise or bequest to corporations 
 formed under that act shall be valid unless the 
 win was made and executed two months before 
 the testator's death, and that provision of the act 
 of 1848 is not repealed by ch. 360, Laws of 1860 ; 
 or even if it is so repealed, the repealing act 
 being general did not repeal or modify the 
 special charter. Allen, J., dissents. Ct. App., 
 1875, Lefevre v. Lefevre, 59 N. Y. (14 Sick.) 434. 
 
 27. T'he provisions of ch. 407, Laws of 1855, 
 relative to the payment of the expenses of the 
 commissioners thereby appointed, and the duties 
 of the county treasurer in respect thereto, being 
 special in their nature and object, are not re- 
 pealed by implication by general provisions for 
 the government of the city or county, or for the 
 auditing and paying the ordinary expenses of 
 the two governments. Ct. App., 1873, People 
 ex rel. Kingslandv. Palmer, 52 N. Y. (7 Sick.) 83. 
 
 28. A special and local statute, providing for 
 a particular class of cases, is not partially re- 
 pealed or amended by a statute general in its 
 terms, provisions and application, unless the in- 
 tention to repeal or alter the particular law is 
 manifest ; although the terms of the general act 
 would, taken strictly, and, but for the special 
 law, include the case or cases provided for by 
 it. Ct. App., 1872, Matter of Commissioners of 
 Central Park, 50 N. Y. (5 Sick.) 493. 
 
 29.. Repeal of repealing act. The repeal 
 of a repealing statute revives the original stat- 
 ute, even though the repeal is only by implica- 
 tion, e. J.,. by the substitution of a different 
 statute. Sup, Ct., 1872, People v. Davis, 61 Barb. 
 456. S. P., Schwab v. People, 4 Hun, 520. 
 
 30. Effect of repeal. An act authorizing a 
 board of town auditors to cause the streets of 
 the town to be lighted with gas, and to contract 
 with a gas company therefor, does not confer 
 upon them power to bind the town by an abso- 
 lute contract for a term of years, but their power 
 is subject to modification or repeal, and the repeal 
 of the act conferring it terminates a contract 
 made under it. Ct App., 1874, Richmond Co. 
 Gas-light Co.- v. Town of Middletown, 59 N. Y. (14 
 Sick.) 228.- 
 
 HL CONSTEUCTION. 
 
 81. According to intent. Courts should be 
 astute to find out some meaning to every stat- 
 ute, and if an intent can be spelled out fairly 
 from the words, effect should be given to that 
 intent, though not artistiealljr expressed. Ct. 
 App., 1873, Matter of Commissioners of Washing- 
 ton Park, 52.N. Y. {1 Sick.) 131. 
 
 82. When a provision in a statute expressly 
 declares the intent and meaning of such statute, 
 all other parts must yield to carry out that in- 
 
 tent. Ct. App., 1874, Farmers Bank of Fayette- 
 ville V. Hale, 59 N. Y. (14 Sick.) 53 ; Eev'g S. C, 
 15 Abb. N. S. 276. 
 
 33. Such a clause is like a proviso, and though 
 repugnant to the purview of the act, it is not 
 void ; but if to make the act operative would 
 violate the intent and meaning of the legislature 
 as thus declared, the act will be held inoperative, 
 lb. 
 
 34. The provision of sec. 2, ch. 163, Laws of 
 1870, declaring it to be the intent and meaning 
 of that act to put State banks upon an equality 
 with national banks in the particulars referred 
 to in the act, makes the rights and liabilities of 
 the latter, in those respects, the measure of the 
 rights and liabilities of the former ; and the 
 courts having decided that national banks in 
 this State are subject to its usury laws, the State 
 banks are likewise subject thereto, and there is 
 no repeal of those laws as to them. JOHsrsoir, 
 Grotek and Andrews, 33., dissent. lb. 
 
 35. Accoxding to language used. All 
 statutes must have a construction according to 
 the language employed, and where no ambiguity 
 exists, courts cannot correct supposed defects. 
 Com. App., 1873, Benton v. Wickwire, 54 N. Y. (9 
 Sick.) 226. 
 
 36. An amendment has no more retroactive 
 effect than an origuial act upon the same sub- 
 ject ; and neither can have any retroactive force, 
 unless, in exceptional cases, the legislature so 
 declare. lb. 
 
 37. In expoimding a statute, we are to presume 
 that the legislator used words in their most 
 usual signification, — that he had the subject- 
 matter constantly in mind, — that all his expres- 
 sions were directed to a reasonable end, — that 
 his train of .thought was uniform, and that he 
 intended to infuse into every part of the statute 
 the same spirit. N. Y. Supr. Ct. Sp. T., 1871, 
 Groesheeck v. Dunscomb, 41 How. 302. 
 
 38. Where no different intention is manifested, 
 courts are required to construe statutes by their 
 terms or the subject-matter to which they relate, 
 according to the ordinary and popular meaning 
 of the language in which they are made ; and 
 what is not fairly within the signification of 
 those terms is not to be deemed within the stat- 
 utes. Sup. Ct., 1874, Smith v. Mayor, etc. of New 
 York, 47 How. 277 ; S. C, 1 Hun, 56. 
 
 39. An act increasing the duties of certain po- 
 lice justices, and authorizing the common council 
 of a, city, or the board of supervisors of a county, 
 " for the additional duties imposed by this act, 
 
 ^to increase the compensation of any officer 
 
 mentioned herein," is to be construed as author- 
 izing such compensation to be increased but 
 once so as to render it adequate, and not an ad- 
 justment from time to time. lb. 
 
 40. A subsequent act authorizing the salaries 
 of certain civil justices to be fixed at a sum "not 
 exceeding the salary now paid to the police jus- 
 tices," cannot be construed as legalizing a pre- 
 vious unauthorized increase of the salary of the 
 police justices. lb. 
 
 41. Statutes are to be interpreted according to 
 their true meaning and intent ; and that intent 
 is to be ascertained, first from the language 
 used, or if that is ambiguous and doubtful, then 
 from extrinsic circumstances. Sup. Ct., 1871, 
 People V. Schoonmaker, 63 Barb. 44. 
 
 42. In construing a statute which authorized 
 commissioners appointed for that purpose, to 
 subscribe in the corporate name of a town to the 
 capital stock of a railroad company, and issue 
 town bonds therefor, upon tbe consent in 
 writing of a majority of the tax-payers appear- 
 
STATUTES. 
 
 685 
 
 ing on the last assessment roll representing " a 
 majority of the taxable property of the residents 
 of said town," in connection with a previous 
 statute, changed thereby, which did not contain 
 the words " the residents of," — Held, that it was 
 not the intent and meaning of the legislature, 
 nor the spirit of the act, to include by the term 
 "residents," a canal corporation owning property 
 in the town and paying taxes thereon, but wliose 
 principal office and place of business was else- 
 where, lb. 
 
 43. Where it appeared tliat the resident tax- 
 payers of the town had held a meeting, just 
 previous to the passage of the latter act, and 
 passed a resolution to apply to the legislature 
 for such a change in tlie law as would exclude 
 such corporations from voting, or giving or re- 
 fusing consent to the issuing of bonds, — Held, 
 that the construction derived from the language 
 of the act was thereby confirmed. lb. 
 
 44. In the interpretation of special statutes 
 relating to the improvement of streets in the city 
 of NewYork, the general principles apply that, 1st. 
 Statutes are to be interpreted according to the 
 intent, and not necessarily according to the letter. 
 2d. Where the words are obscure, so that the 
 intent does not clearly appear, it may be inferred 
 from the cause or necessity of the statute. 3d. 
 It is the duty of the courts to construe a statute 
 so as to meet the mischi^and advance the 
 remedy. 4th. Where the provision of a statute 
 is general, everything which is necessary to make 
 tlie provision effectual is supplied by the common 
 law. 5tii. All statutes in pari materia are to be 
 read and construed together, as if they formed 
 parts of the same statute, and were enacted at 
 the same time. 6th. Where the intent or the 
 mischief intended to be remedied is plain, but 
 tlie remedy obscure, that construction is to be 
 given to the language which will give fuU effect 
 to the intent, and not that -which will render it 
 void or Inoperative. N. Y. C. P., 1875, People 
 ex rel. Ward v. Asten, 49 How. 405. 
 
 45. Construed by these rules, the board of 
 assessors of the city of New York, created by 
 ch. 302, Laws of 1859, possesses all the powers, 
 and is charged with all the duties, in relation to 
 tlie making of assessments for local improve- 
 ments possessed under previous laws by the 
 bureau of assessments of the street department, 
 or the assessors appointed by the common coun- 
 cil, with the additional power to assess for " all 
 other improvements directed by a corporation 
 ordinance," under which they can assess the 
 damages for a loss occasioned by reason of the 
 change of grade of a street. lb. 
 
 46. Accepted meaning. Where a certain 
 interpretation of a statute has been universally 
 accepted and acted upon for a long period, a 
 court will not disturb it, though satisfied that it 
 is erroneous. N. Y. C. P., 1871, Van Boon v. 
 Lyon, 4 Daly, 149. 
 
 47. Change of phraseology. The rule fol- 
 lowed, that where a law antecedently to a revis- 
 ion of the statutes is settled, either by clear 
 expressions in the statutes or adjudications on 
 tliem, the mere change of phraseology in the 
 revisien shall not be deemed a change of the law, 
 unless such phraseology evidently purports an 
 intention in the legislature to work a change. 
 Sup. Ct., 1875, Douglas v. Douglas, 6 Hun, 140. 
 
 48. Previous judicial construction. Where 
 a judicial construction in the lower courts, of a 
 legislative enactment, which is of great practical 
 importance, and of constant application, and 
 wliicli affects large values, has been acquiesced 
 in by the parties and has remained unquestion- 
 
 ed, the re-enaetment of the same provisions in 
 subsequent statutes should be- deemed an adop- 
 tion by the legislature of the construction so put 
 upon them. Ct. App., 1874, People ex rel. Out- 
 water V. Green, 56 N. Y. (11 Sick.) 466. 
 
 49. In paii materia. Several statutes in 
 pari materia are to be so construed if possible as 
 to' harmonize their provisions, and give them 
 practical effect as far as possible, and the inter- 
 pretation which renders a statute inoperative 
 cannot be admitted. Sup. Ct., 1874, O'Rourke 
 V. People, 3 Hun, 225.'' S. P., Mullah v. Mayor, 
 etc. ofN. Y., 3 Hun, 661. 
 
 50. The prohibition of see. 115, ch. 137, Laws 
 of 1870, against certain city officers being inter- 
 ested in any contract with the city, was not re- 
 pealed by sec. 1, ch. 674, Laws of 1871, author- 
 izing the mayor and comptroller to designate 
 newspapers in which to publish proceedings of 
 the common council, but they are to be con- 
 strued together, the latter being qualified by the 
 former act. Sup. Ct, 1875, Mutlaly v. Mayor, 
 etc. o/N. Y., 3 Hun, 661. 
 
 51. Of same date. Where two statutes 
 upon the same subject are passed on the same 
 day, and the one numbered as a chapter of the 
 laws last is to take effect at a later day than the 
 other, and applies only to a particular locality, 
 that must control in that locality. N. Y. C. P., 
 1870, Metropolitan Board of Health v. Schmades, 
 10 Abb. N. S. 205; S. C, 3 Daly, 282. 
 
 52. Title may aid construction. Where 
 there is doubt as to the intent and meaning of 
 an act of the legislature, or as to the extent or 
 limitation of its provisions, it is proper to look 
 at the title thereof for aid in its construction. 
 Sup. Ct. Sp. T., 1872, Cumines v. Board of Super- 
 visors of Jefferson, 63 Barb. 287. S. P., In matter 
 of Hudson City Savings Inst., 5 Hun, 612; Jones 
 V. Sheldon, 50 N. Y. (5 Sick.) 477. 
 
 53. " An act to extend the powers of boards 
 of supervisors " in certain cases, and " an act to 
 amend an act to extend the powers of boards of 
 supervisors," must be construed together, as 
 intended to affect the powers of tliose boards 
 only, and not as increasing the jurisdiction of 
 the county court, although the latter act, by 
 itself, might bear that construction. Sup. Ct., 
 1875, In matter of Hudson City Savings Inst., 6 
 Hun, 612. 
 
 54. So construed, the provision of the act 
 of 1867 (7 Edm. Stats. 185), amendatory of 
 the act " to prevent cattle running at large in 
 the highway," which authorizes the seizure of 
 cattle found trespassing, applies only to cattle 
 trespassing from the highway, and not to those 
 escaping through division fences. Ct. App., 
 1872, Jones v. Sheldon, 50 N. Y. (5 Sick.) 477. 
 
 55. The title or preamble of a statute, 
 although properly no part thereof, to some 
 extent indicates the intention of the framers. 
 Thus, the title " an act enlarging the boundaries 
 of the Village of Owego in the county of 
 Tioga," given to an act which simply declares 
 that " the territory within the following limits 
 (describing them) shall constitute the village of 
 Owego," and repeals all inconsistent acts, shows 
 that it was the intention to amend the existing 
 charter, and not to create a new corporation 
 without conferring upon it any of the powers of 
 a municipal corporation. Ct. App., 1863, Pum- 
 pelly V. Village of Owego, 45 How. 219. 
 
 . 66. Hea^ngs of articles of the Bevised 
 Statutes are not to be construed as controlling 
 the words contained in the body thereof. Thus, 
 the heading of art. 2, title 1, ch. 6, part 2, of the 
 Bevised Statutes, " Of wills of personal property 
 
686 
 
 STATUTES. 
 
 and the probate of them," is not to be construed 
 as confining its provisions to wills whicli dispose 
 of personal property only. Ct. App., 1872, In 
 matter of Will of J. Kellum, 50 N. Y. (5 Sick.) 
 298; Eev'g S. C, 6 Lans. 1. 
 
 57. Strict construction. Statutes author- 
 izing the condemnation of private property for 
 public uses are in derogatton of private rights, 
 and should not be extended by inference or im- 
 plication. Ct. App., 1870, Rensselaer and Sara- 
 toga R. R. Co. V. Davis, 43 N. Y. (4 Hand,) 137. 
 
 58. Amendatory. The effect of a statute 
 amending a previous statute " so as to read as 
 follows," retaining a part of the statute amended 
 and incorporating therein new provisions, is not 
 to repeal the part retained and re-enact the 
 same, but that part continues in force from its 
 first enactment, and the new provisions incor- 
 porated become operative from the time the 
 amendatory act takes effect, the parts of the orig- 
 inal statute which are omitted being abrogated 
 and ceasing to form a part of the statute from 
 the same date. Ct. App., 1872, Moore v. Mansert, 
 49 N. Y. (4 Sick.) 832 ; Aff'g S. C, 5 Lans. 173. 
 
 59. An act referring to a certain section as 
 numbered in a specified edition of the Revised 
 Statutes, and amending it, is effectual for that 
 purpose, although such section was a part of a 
 session law existing prior to the revision, and not 
 repealed thereby, but never recognized by the 
 legislature as part of the Revised Statutes. Sup. 
 Ct. Sp. T., 1872, People ex rel. Furman v. Clute, 
 12 Abb. N. S. 399 ; Aff'd, S. C, 63 Barb. 356 ; 50 
 N. Y. (5 Sick.) 451. 
 
 60. An amendatory act which provides that a 
 certain city shall not be liable for any .non-feas- 
 ance or misfeasance of certain officers of any 
 duty imposed upon them by " the provisions of 
 articles 4 and 5 of this act," must be construed 
 as referring thereby to the original act, when 
 that contains articles numbered 4and5imposing 
 duties, but none such are in the amendatory act. 
 Ct. App., 1869, Gray v. City of Brooklyn, 10 Abb. 
 N. S. 186. 
 
 61. An amendatory act of congress which 
 provides that " nothing in this act or In the act 
 of which it is amendatory, shall be construed to 
 annul or affect any i-egulation established by 
 the existing laws of any State " in respect to a 
 particular subject, is to be read and construed 
 as if it had been incorporated in the original' act 
 at its date, except so far as it would act retro- 
 spectively, or affect acts done or rights vested 
 under that act ; and it, in effect, not only relieves 
 against penalties or forfeitures incurred under 
 the original act, but gives effect to contracts 
 made in contravention of the provisions so 
 amended. N. Y. C. P., 1871, Henderson v. Spof- 
 ford, 10 Abb. N. S. 140 ; S. C, 3 Daly, 861. 
 
 62. Revival of parts omitted. When any 
 statute is revised, parts of the former statute 
 omitted therefrom cannot be revived by con- 
 struction. Sup. Ct., 1875, In matter of South- 
 worth, 5 Hun, 55. 
 
 63. Directory. A statute- fixing the time 
 within which public officers must file their 
 official bonds held directory. Sup. Ct. Sp. T., 
 1874, McRoberts v. Winant, 15 Abb. N. S. 210. 
 
 64. The provision of subd. 8, sec. 401 of the 
 Code, requiring the judge before whom a motion 
 is made to obtain an injunction order, order of 
 arrest or warrant of attachment, or to vacate, 
 modify or set aside such order, etc., to render 
 and make known his decision within 20 days 
 after the submission of the motion is direc- 
 tory merely. N. Y. Supr. Ct., 1872, Huffel v. 
 Schcemig, 34 N. Y. Supr. (2 J. & Sp.) 476. 
 
 65. Where an act of the legislature lays out 
 and extends a street, prescribing its precise 
 location, width and extent, and then makes it 
 the duty of the corporation counsel, within three 
 months after the passage of the act, to take the 
 necessary legal means to open the street, the 
 provision as to time must be deemed to be 
 directory merely, and the rights of the public 
 will not be defeated by the neglect of such 
 counsel to proceed within the three months. Sup. 
 Ct., 1874, Stevenson v. Mayor, etc. of New York, 1 
 Hun, 51. 
 
 66. Mandatory. When a power is conferred 
 by statute for the promotion of justice, suitors 
 have a right to insist upon the exercise of it in 
 a proper case. May, in snch a statute, means 
 shall. Sup. Ct., 1875, Wood v. Shultis, 4 Hun, 
 309. 
 
 67. The provision of subd. 4, see. 274 of the 
 Code, "that the court may dismiss the com- 
 plaint " for unreasonable neglect of the plaintiff 
 to proceed in his action, ought not to be con- 
 strued as mandatory, but should receive its 
 ordinary signification as permissory. Sup. Ct. 
 Sp. T., 1871, Perkins v. Butler, 42 How. 102. 
 
 68. Where a public officer is clothed by stat- 
 ute with power to do an act which concerns the 
 public interest, or the rights of third persons, 
 the language used, though permissive in form, 
 is in fact perempto*. Com. App., 1872, People 
 ex rel. Otsego OduntyBank v. Supervisors of Otsego 
 County, 51 N. Y. (6 Sick.) 401. 
 
 69. Accordingly, held, that under ch. 938, 
 Laws of 1867, the duty of the boards of super- 
 visors of the counties named to admit claims for 
 taxes illegally assessed, and to refund such 
 taxes, was imperative, and they were invested 
 with no discretion in the matter. lb. 
 
 70. Disqualifying act. An act disqualify- 
 ing a class of persons from being appointed to a 
 particular office, may 'properly be construed as 
 disqualifying them from being elected to such 
 office, after it has been made elective. Sup. 
 Ct. Sp. T., 1872, People ex rel. Furman v. Clute, 
 12 Abb. N. S. 399. 
 
 71. An act disqualifying a class of persons 
 from election or appointment to a certain office, 
 operates upon the first step towards holding and 
 stops that, and such a person cannot hold the 
 office if disqualified at the time of his election 
 or appointment, although that disqualification 
 is afterward removed. Ct. App., 1872, S. C, 50 
 N. Y. (5 Sick.) 451. 
 
 72. The act of congress rendering deserters 
 from the military service incapable of exercising 
 any of the rights of citizens of the United States, 
 must be construed as applying only to deserters 
 who have been duly convicted as such by some 
 court of competent jurisdiction. Sup. Ct., 1871, 
 Goetcheus v. Matihewson, 5 Lans. 214. 
 
 73. Penal statute. A statute makiag trus- 
 tees of a corporation liable under certain cir- 
 cumstances for the debts of the corporation is 
 in the nature of a penal statute, and the rule, 
 that its general words shall be restrained for 
 the benefit tit him against whom it is inflicted, 
 is applicable thereto. Sup. Ct., 1872, Ball v. 
 Sigel, 13 Abb. N. S. 179 ; S. C, 7 Lans. 206. 
 
 74. A penal statute cannot be extended by 
 implication or. construction to cases within the 
 mischief, if they are not at the same time within 
 the terms of the act fairly and reasonably In- 
 terpreted. Ct. App., 1872, Verona Central Cheese 
 Co. V. Murtaugh, 60 N. Y. (5 Sick.) 314: Rev'g 
 S. C, 4 Lans. 17. 
 
 75. The act imposing a penalty upon any 
 person who shall " knowingly sell, &e., to any 
 
\ 
 
 StATTltES. 
 
 687 
 
 cheese manufactory diluted, adulterated or 
 skimmed milk" (oh. 36, Laws 1865), applies 
 only to an actual and intentional violation of its 
 provisions. The offense must have been com- 
 mitted by the party sought to be charged, or by 
 his authority or with his knowledge and assent. 
 lb. 
 
 76. A statute declaring that any person who 
 shall maliciously, &c., injure any ornamental 
 tree, etc., on any street shall be deemed guilty 
 of a misdemeanor, and shall be punished by fine 
 or imprisonment or both, does not in tlie legaj 
 sense inflict a penalty, and notwithstanding the 
 existence of such statute, a municipal corpora- 
 tion, authorized by its charter to pass by-laws to 
 prevent injury, &c., to shade trees planted along 
 the streets and impose penalties therefor, but 
 forbidden to impose a penalty for any act pro- 
 hibited, and for doing which a penalty is pre- 
 scribed by law, may pass a by-law forbidding 
 the injuring of such shade trees under a penalty. 
 Sup. Ct., 1871, Village of Lancaster y. Richardson, 
 4 Lans. 136. 
 
 77. In order to render the vmauthorized sale 
 of intoxicating drinks a misdemeanor, it is not 
 necessary that the statute should, in express 
 terms, declare it to be so or to be punishable as 
 such, but it is suffieien't that it is declared to be 
 an offense, and is made penal. Sup. Ct., 1874, 
 O'Rourke V. People, 3 Hun, 224. 
 
 78. A statute prescribing a penalty to be re- 
 covered in a civil action for the refusal or ne- 
 glect of an officer to perform a duty, is not a pro- 
 vision for its punishment as a criminal offense, 
 but a statute making the wilful neglect to 
 perform such duty, " where no special provision 
 shall have been made for the punishment of 
 such delinquency," punishable as a misdemeanor, 
 is still applicable thereto. Sup. Ct., 1875, Peo- 
 ple ex ret. Tweed v. Liscomb, 3 Hun, 760. 
 
 79. Prohibitory. The statute prohibiting 
 the transaction of business by any one in the 
 name of a partner not interested in his firm, and 
 requiring that when the designation " and com- 
 pany " or " & Co." is used, it shall represent an 
 actual partner or partners, and making a viola- 
 tion thereof a misdemeanor punishable by fine 
 (ch. 281, Laws of 1833 ; 4 Edm. Stats. 449), ap- 
 jSKes to all business transacted under the unau- 
 thorized name, and renders all contracts made 
 in that name, or when using it, absolutely void, 
 so that they cannot be enforced by action. N. 
 Y. Supr. Ct., 1872, Swords v. Owen, 43 How. 176 ; 
 S. C, 34 N. Y. Supr. (2 J. & Sp.) 277. 
 
 80. A statute prohibiting a member of the 
 common council of a city to become a contractor 
 under any contract authorized by the council, 
 and providing that a contract entered into in 
 violation thereof may be declared void at the 
 instance of the city or of any party interested, is 
 not to be construed as confining the city to the 
 remedy therein provided, but it may set up the 
 invalidity of the contract as a defense to an ac- 
 tion thereon. Sup. Ct., 1872, Smith v. City of 
 Albany, 7 Lans. 14. 
 
 81. Prospective. Every statute is to be 
 construed as having prospective operation pnly, 
 unless its express letter or clearly manifested 
 intention requires that it should have a retroac- 
 tive effect ; and if the language of the statute can 
 be, satisfied by giving it prospective operation, 
 it is to have such operation only. Com. App., 
 1874, Fitzpatrick v. Boylan, 57 N. Y. (12 Sick.) 
 438. 
 
 82. The mechanic's lien law of 1863, for the 
 city of New York, which repealed all former 
 acts " except so far as may be necessary to carry 
 
 into effect liens acquired " previously, was clear- 
 ly intended to create a new system as to liens 
 thereafter acquired, but to continue the old sys- 
 tem as to existing liens. Dwioht and Gkat, 
 CC, dissent. lb. 
 
 83. The provision of sec. 2, ch. 84, Laws of 
 1869, that no subscription to the stock of a rail- 
 road company named shall be invalidated or 
 affected by reason of the non-payment of 10 per 
 cent, thereof at the time of subscription, did not 
 apply to prior subscriptions, but operated pros- 
 pectively only. Com. App., 1874, N. Y. ^ Os- 
 wego M. R. R. Co. V. Van Horn, 57 N. Y. (12 
 Sick.) 473. 
 
 84. HetrOspeotive statutes are not forbidden 
 by the Constitution, except where tliey impair 
 the obligation of contracts, or partake of the 
 character of ex post facto laws ; but unless an 
 act contains, in terms or by necessary implica- 
 tion, language of intent to apply retrospectively, 
 it must be held to apply prospectively only. 
 Sup. Ct., 1872, People ex ret Pitts v. Board of 
 Supervisors of Ulster Co., 63 Barb. 83. 
 
 85. This rule applies even to remedial stat- 
 utes, except where no other construction can be 
 given without leaving the enactment of no effect, 
 or where such a retrospective effect is a neces- 
 sary implication from the language employed, 
 lb. 
 
 86. The act authorizing the board of super- 
 visors of any county, except New York and 
 Kings, by a two-thirds vote to legalize irregular 
 acts of town officers, and to correct manifest 
 clerical or other errors in assessments, etc. (ch. 
 695, Laws of 1871), is prospective only, and does 
 not authorize the correction of assessments made, 
 or refunding of taxes collected, prior to its pas- 
 sage, lb. 
 
 87. To render a statute retrospective in its 
 operation requires the clearest expression of the 
 legislative intention. Ct. App., 1870, People v. 
 Supervisors of Columbia Co., 43 N. Y. (4 Hand,) 
 130. 
 
 88. The act of 1864 (ch. 8, sec. 22), relating to 
 the payment of bounties, should not be construed 
 as retrospective ; and a county board of super- 
 visors had no authority, under it, to vote the 
 payment of bounties or gratuities to persons 
 who had voluntarily enlisted prior to its passage. 
 lb. 
 
 89. Sec. 2, of chapter 578, Laws of 1864 (6 
 Edm. Stats. 366),does not operate retrospectively, 
 so as to exclude from the computation of time, 
 under the statute of limitations, the period dur- 
 ing which a citizen had, prior to its passage, been 
 out of the State in the military service of the 
 United States. Ct. App., 1872, Stone v. Flower, 
 47N. Y. (2 Sick.) 566. 
 
 90. Remedial. The question at the trial of 
 an action is, upon the facts of the case, what does 
 the existing law pronounce as to the rights of 
 the parties ; and where, since the commencement 
 of a suit upon town bonds issued in aid of a rail- 
 road, a statute has been passed curing defects 
 in the exercise of the authority under which they 
 were issued, and making no exceptions as to ex- 
 isting suits, such law must govern the decision 
 of the court. Com. App., 1874, Town ofDuanes- 
 burgh v. Jenkins, 57 N. Y. (12 Sick.) 177. 
 
 91. The, provision of sec. 7, ch. 580, Laws of 
 1872, declaring that no assessment theretofore 
 made or thereafter to be made for past or pend- 
 ing local improvements or public works shall be 
 vacated for omissions to advertise, etc., applies, 
 not only to special proceedings to vacate assess- 
 ments, but to suits in equity as well, and pro- 
 hibits the granting of such relief in any form of 
 
688 
 
 STATUTES. 
 
 proceeding. Ct App., 1874, Lennon v. Mayor, 
 etc. of New York, 55 N. T. (10 Sick.) 361. 
 
 92. Wliether said act was intended to validate 
 assessments made prior to its passage, or not, it 
 does not purport and could not have the effect 
 to validate sales made prior to its passage under 
 void assessments. lb. 
 
 93. The act rendering valid certain assessments 
 in the city of New York (ch.580, Laws of 1872), 
 deprives courts of equity of the power, in suits 
 commenced after its passage, to declare void, 
 and cancel of record, and enjoin the collection of 
 assessments which were originally invalid and 
 were not validated by force of that act, so long 
 as the assessment is not sought to be enforced by 
 the taking of property. N. Y. Supr. Ct., 1875, 
 Astor V. Mayor, etc. of New York, 39 N. Y. Supr. 
 (7 J. & Sp.) 120. 
 
 94. Particular terms used. When a stat- 
 ute speaks of the appearance of a party before 
 any tribunal, it as a general rule means an ap- 
 pearance in person. Sup. Ct., 1871, People ex 
 rel. LmgweU v. McMaster, 10 Abb. N. S. 132. 
 
 95. The term " consignee " as used in the act 
 of 1867 (4 Edm. Stats., p. 81, sec. 18) relating to 
 the payment of pilot fees, means not the person 
 to whom the cargo is shipped, but the onewho 
 is authorized to take charge of the vessel upon 
 her arrival, collect the freight, pay all her ex- 
 penses and act generally in place of the owner. 
 N. Y. C. P., 1872, Gillespie v. Winberg, 4 Daly, 
 818. 
 
 96. That statute being amendatory of a defect 
 in an existing law, enacted for the protection, 
 by public regulation, of life and property, should 
 receive a liberal construction. lb. 
 
 97. In sees. 351 to 371 of the Code, relating to 
 .appeals to the Court of Common Fleas, the word 
 
 "justice," — Held, to be used as correlative orof 
 equivalent meaning with the terms "Marine 
 Court," " assistant justice's courts " of New York 
 City, and " justice's courts of cities," or as syn- 
 onymous with the term " the court below." N. 
 Y. C. P., 1871, Boomer v. Brown, 4 Daly, 229. 
 
 98. The omission in a statute, stating a corpo- 
 rate Hame, of descriptive words merely, which 
 can be implied from the residue of the name, as 
 the prefix, " The society of," in the corporate 
 name of " The Society of the New York Hospi- 
 tal," is not a material variance, but the act will 
 be operative upon the corporation intended. Ct. 
 App., 1872, People ex rel. Davies v. Commissioners 
 of Taxes of New York, 47 N. Y. (2 Sick.) 501. 
 
 99. The term " owner," in a statute providing 
 for compensation to the owner or owners of 
 lands taken for railroad purposes, and for mak- 
 ing the owners parties to the proceedings, — Held, 
 not to include a judgment creditor. Ct. App., 
 1871, Watson v. N. Y. Central R. R. Co., 47- N. 
 Y. (2 Sick.) 157. 
 
 100. Particular and local statutes. Under 
 ch. 340, Laws of 1870, amending ch. 262, Laws of 
 1869, the commissioners therein named were 
 authorized to proceed with the improvements as 
 to which their report had been confirmed, and to 
 require the issue of bonds therefor, without 
 waiting the confirmation of the reports as to the 
 additional roads provided for by the lattef act. 
 Ct. App., 1871, People ex rel. McLean v. Flagg, 
 46 N. Y. (1 Sick.) 401. 
 
 101. Appeals, limitation of. The statute 
 restricting appeals to the Court of Appeals 
 where the amount of the judgment does not ex- 
 ceed $500, " unless the General Term of the court 
 from whose decision such appeal shall be taken, 
 shall, by an order to be entered in its minutes, 
 state that there is involved some question of 
 
 law which ought to be reviewed in the Court of 
 Appeals" (ch. 322, Laws of 1874), does not re: 
 quire the motion to be made at the same General 
 Term in which the decision was rendered, but it 
 may be made at any other General Term, N. Y. 
 Supr. Ct., 1874, Butterfield v. Radde, 47 How. 535. 
 
 102. Appropriation of land. The intent 
 of the acts relative to laying out and mapping 
 the towns of Kings County, and laying out 
 Ocean Avenue (L. 1869, p. 1590 ; L. 1870, p. 1424 ; 
 L. 1871, p. 1256), was that until the map, show- 
 ing what lands were taken and appropriated by 
 the commissioners for such avenue, had been 
 duly published and become binding upon the 
 public and the owners of property, by the filing 
 of the same in the office of the clerk of Kings 
 County, showing such appropriation according 
 to law, the title to such lands should remain in 
 the private owners. Sup. Ct., 1874, Rider v. 
 Stryker, 2 Hun, 115. 
 
 103. Authorizing preferred stock. Where 
 two railroad corporations, operating a continu- 
 ous line of road, were expressly authorized by 
 their charters to issue preferred and guaranteed 
 stock, and other railroad corporations chartered 
 by other States, were authorized by laws of their 
 respective States to consolidate with such former 
 companies, to form a body corporate with " all 
 the powers, franchises and immunities which the 
 said respective companies shall have, by virtue 
 of their respective charters before such consoli- 
 dation," the consolidated company has power to 
 issue preferred and guaranteed stock, with the 
 consent of its stockholders, within the limits pre- 
 scribed by such charters. Sup. Ct., 1874, Prouty 
 V. Michigan S. #• N. Ind. R. R. Co., 1 Hun, 655. 
 
 104. Act for bonding Waterto-wn. The 
 act authorizing the town of Watertown, among 
 others, to bond itself in aid of a railroad (ch. 75, 
 Laws 1869), and the act of 1870, on the same 
 subject (ch. 52), did not by their terms require a 
 formal acceptance of the provisions thereof ; but 
 they provided for consents, and defined the num- 
 ber necessary, and the amount of property which 
 should be represented by them ; and the statu- 
 tory requirements being complied with, the 
 commissioners were expressly authorized to 
 subscribe for and take stock, and to issue bonds 
 obligatory upon the town. Sup. Ct. Sp. T., 1872, 
 Cumines v. Board of Supervisors of Jefferson Co., 
 63 Barb. 287. 
 
 105. Changing county seat. The act for 
 changing the county seat of Schuyler county 
 from Havana to Watkins (ch. 768, Laws of 1867), 
 did not constitute a contract conferring any 
 vested right, or deprive the legislature of power 
 to provide for the holding of public courts, and 
 changing the locality of the court house. Sup. 
 Ct., 1874, Havana, Trustees of Village of, v. Board 
 of Supervisors of Schuyler County, 2 Hun, 600. 
 
 106. Cumulative punishments. The pro. 
 vision of 2 R. S. 700, sec. 11 (2 Edm. Stats. 
 723), that, upon the conviction of a person of 
 two or more offenses, before sentence shall have 
 been pronounced upon him for either, the im- 
 prisonment to which he shall be sentenced upon 
 the second or subsequent conviction shall com- 
 mence at the termination of the first or second 
 term of imprisonment as the case may be, ap- 
 plies only to convictions upon independent 
 trials, on distinct indictments, and not to con- 
 victions of several distinct offenses charged in 
 one indictment, upon a single trial. jCt. App., 
 1873, People ex rel. Tweed v. Liscomb, 60 N. Y. 
 (15 Sick.) 559 ; Eev'g S. C, 3 Hun, 760. 
 
 107. Draining river. 'The power given to 
 the commissioners for draining the river Wall- 
 
STATUTES. 
 
 689 
 
 kill, by ch. 216, Laws of 1826, did not limit 
 them to their first determination as to the depth 
 and size of tlie ditch, but they were authorized 
 to continue to enlarge it by their own acts or 
 the operation of tlie water, until the necessary 
 size to accomplish the object desired was reach- 
 ed. Ct. App., 1873, Houston v. Wheder, 62 N. Y. 
 (7 Sick.) 641. 
 
 108. Slection of judge. Tlie intent of ch. 
 613, Laws of 1873, providing that certain towns 
 proposed to be annexed to New York city on tlie 
 1st of January, 1874, in case of a vote of the 
 electors in favor thereof, sliould constitute the 
 tenth judicial district of the city, and that a 
 justice of tlie court should be elected at the next 
 general election thereafter to be held was, that 
 such justice should be elected at the general 
 election to be held in November, 1873. Sup. 
 Ct., 1875, People v. Flanagan, 5 Hun, 187. 
 
 109. Sxcise acta. The words, " knowing or 
 having reason to believe," etc., following . the 
 words "Indian or apprentice " in sec. 15 of the 
 excise act of 1857 (4 Edm. Stats. 51), also apply 
 to and qualify the word " minor " in the suc- 
 ceeding clause, and throw the burden upon the 
 prosecutor, under that clause, of proving that 
 the seller knew or had reason to believe that the 
 person to whom the sale was made was under 
 the age specified. Com. App., 1870, Perrt/ v. 
 Edwards, 44 N. Y. (5 Hand,) 223. 
 
 110. It was the intent of ch. 646, Laws of 1873, 
 to throw upon the vendor or giver of the intox- 
 icating liquor the responsibility for injurious 
 acts done by the intoxicated person, but not to 
 make him liable for all the results arising from 
 the sale or gift of the liquor. Sup. Ct., 1875, 
 Bayes v. Phelan, 4 Hun, 733. 
 
 111. That act imposes a liability for injuries 
 only indirectly, if at all, occasioned by an act 
 which is not forbidden by law, and should re- 
 ceive a strict construction. lb. 
 
 112. Execution after death of judgment 
 debtor. The provisions of sees. 376 ttj 379 of 
 the Code, in respect to a revival of a judgment 
 against a deceased judgment debtor, are not re- 
 pealed nor in any manner affected by ch. 295, 
 Laws of 1850, allowing an execution to issue on 
 leave obtained from the surrogate, but the latter 
 act is merely cumulative and adds another re- 
 straint to those already existing, making the 
 permission of both tribunals necessary before 
 .an execution can issue. N. Y. Supr. Ct., 1875, 
 Beard v. Sinnott, 38 N. Y. Supr. (6 J. & Sp.) 536. 
 
 113. Exempting carriers from liability. 
 The provision of the act of Congress, passed 
 March 3, 1851, exempting a steamboat owner 
 from liability for loss or damage by fire, not 
 caused by his neglect or consent, to " any goods 
 or merchandise whatever," etc., — Held, to apply 
 to the ordinary baggage of a passenger. Cora. 
 App., 1871, Chamberlain v. Western Transporta- 
 tion Co., 44 N. Y. (5 Hand,) 305 ; Kev'g S. C, 
 46 Barb. 218. 
 
 114. This statute, though it changes the com- 
 mon law, is not penal nor derogatory to natural 
 right, but was enacted to remedy the rigor of 
 the common law, and should be construed, if 
 not liberally, yet fairly, to carry out the policy 
 which it was enacted to provide. lb. 
 
 115. Incorporating turnpike company. 
 Where an act incorporating a turnpike company 
 provided that the road should be six rods in 
 width, and should be constructed with an arch 
 in the centre, and prescribed how title to the 
 laud occupied should be acquired ; and an 
 amendatory act provided that the centre of the 
 arch as already made should be taken to be the 
 
 44 ' 
 
 centre of the road, and authorized the company 
 to remove fences within the limits of such road, 
 after giving 20 days' notice to the owner or oc- 
 cupant, — Beld, that such amendment was not 
 intended to and could not effect a transfer to 
 the company of the title of the land within 
 those limits, which it had not obtained in the 
 manner prescribed by the original act. Sup. 
 Ct. Sp. T., 1872, Marvin v. Pardee, 64 Barb. 353. 
 
 116. A provision in a village charter, autlior- 
 izing the trustees to " survey and determine the 
 boundaries of the streets of said village, and to 
 mate and establish a map thereof, and file the 
 same with the clerk," etc., merely confers upon 
 them power to survey and determine the bound- 
 aries as they actually exist, and make a map of 
 them as they actually find them, either by the 
 record, or by user where no record exists ; and 
 it does not authorize them to so determine such 
 boundaries as to take away a citizen's property, 
 lb. 
 
 117. Legalizing school site. Chapter 391, 
 Laws of 1867, legalizing the site of a school 
 house in Onondaga county, did not, of itself, 
 appropriate the lands to public use, or in terms 
 confer upon the trustees any title thereto. The 
 title could only be acquired by proper legal 
 proceedings under the previous statute. Ct. 
 App., 1870, Wood V. Phillips, 43 N. Y. {4 Hand,) 
 162. 
 
 118. Local assessments. Under ch. 774, 
 Laws of 1867, authorizing the construction and 
 maintenance of ditches in the town of Royalton, 
 Niagara county, but one assessment is author- 
 ized, and that for the completed work, including 
 the land damages ; and the commissioners can- 
 not make it until their duties under the act liave 
 been performed. Ct. App., 1872, People ex rel. 
 
 Williams v. Baines, 49 N. Y. {4 Sick.) 587. 
 
 119. The easement contemplated by tlie act 
 requires the legal title in perpetuity, and that 
 can only be taken or appropriated, in invitum, 
 upon just compensation to the owner. Conse- 
 quently, where the commissioners, without hav- 
 ing first acquired the title to the lands in any of 
 tlie modes provided by the statute, ente"r upon 
 tlie work and construct the ditches, they are 
 trespassers, and an assessment upon the knds 
 benefited by the work is unauthorized and void, 
 lb. 
 
 120. Whether, after such an assessment is 
 vacated, they would still have power to acquire 
 tlie title, and then make another assessment, 
 query f lb. 
 
 121. Mechanics' liens. The lien is created 
 by the filing of the notice, and everything which 
 the statute requires to be stated in it is an essen- 
 tial prerequisite to the creation of the lien, and if 
 anything required by the statute is omitted, the 
 notice is of no avail. N. Y. C. P., 1873, Hubbetl 
 V. Schreyer, 14 Abb. N. S. 284 ; S. C, 4 Daly, 362. 
 
 122. 'Tlie lien law is a remedial statute, and 
 though it is to be strictly construed so far as to 
 require substantial compliance with every ma- 
 terial provision by which property may be 
 encumbered by the mere act of the claimant, 
 yet it should not be construed so strictly as to 
 deprive creditors of the benefit intended to bo 
 conferred. S. C, 15 Abb. N. S. 300. 
 
 123. Protection of shade trees. Laws 
 passed by the legislature or by a municipal cor- 
 poration for the protection of shade or orna- 
 mental trees planted along the streets or high- 
 ways, must be construed as applying only to 
 persons who are not owners of the adjoining 
 lands, since the trees belong to such owners, ex- 
 cept so far as the public has acquired title by 
 
690 
 
 STIPULATIONS— STOCKS. 
 
 purchase or the exercise of tlie right of eminent 
 domain. Sup. Ct., 1871, Village of Lancaster v. 
 Richardson, 4 Lans. 136. 
 
 124. Protection of tax-payera. The lan- 
 guage of the body of ch. 161, Laws of 1872, is 
 sufficiently comprehensive to embrace every 
 wrong by which tax-payers may be prejudiced, 
 as within the provisions of the act, if not witliin 
 the literal and precise meaning of the words ; 
 and the terms of the title are sufficiently com- 
 prehensive to remove all doubt that the legisla- 
 ture intended to provide ample remedy ^d 
 protection to the tax-payer against all wrongful 
 acts of public servants and agents affecting the 
 property rights of the corporation, or its pecuni- 
 ary obligations, to the prejudice of the tax- 
 payers. Ct. App., 1874, Ayers v. Lawrence, 59 
 N. Y. (14 Sick.) 192 ; Rev'g S. C, 63 Barb. 454. 
 
 125. Railroad act of 1850. Under sec. 49 
 of the general railroad law of 1850 (3 Edm. 
 Stats. 617), all the powers and privileges con- 
 tained in that act were conferred upon the exist- 
 ing corporations, including the right, where they 
 were previously limited by charter to a less sum, 
 to demand and receive three cents per mile for 
 the carriage of passengers. Gt. App., 1872, 
 Johnson v. Hudson River R. R. Co., 49 N. Y. (4 
 Sick.) 455; Rev'g S. C, 2 Sweeny, 298. 
 
 126. Registry law. Although the legisla- 
 ture cannot require the courts to construe a 
 statute according to its directions, yet it can de- 
 clare the purpose it intended to attain by it, and 
 it is the duty of the courts to so construe it as 
 to effect that purpose, if it can be done consist- 
 ently with the language used. Sup. Ct., 1876, 
 People ex rel. Frost v. Wilson, 3 Hun, 437 ; Eev'd 
 by Ct. App. 
 
 127. The provision of sec. 6, ch. 570, Laws 
 1872, that no vote shall be received unless the 
 name of the person offering to vote be on the 
 register, made as therein provided, is mandatory, 
 and the elector loses his right to vote, even 
 though his name is on the register, if that is not 
 prepared according to law. lb. 
 
 128. Relieving from rent. T)ie main in- 
 tent of ch. 345, Laws of 1860 (4 Edra. Stats. 
 433), was to reverse the rule of law, previously 
 existing, which held a tenant liable for rent 
 notwithstanding the destruction or untenantable 
 condition of the premises, unless he had pro- 
 tected himself by stipulations in his lease, and 
 relieve the tenant in such cases ; but it makes 
 no apportionment in case of a partial destruction 
 or untenantable condition, and it must be con- 
 strued as requiring the tenant to wholly quit 
 and surrender the possession in order to avail 
 himself of its protection. N. Y. Supr. Ct., 1872, 
 Johnson v. Oppenheim, 43 How. 433 ; S. C, 12 
 Abb. N. S. 449 ; 84 N. Y. Supr. (2 J. & Sp.) 416. 
 
 129. Repealing acta. The provision of the 
 general repealing act of 1828 (sec. 6, ch. 21, 
 Laws of 1828-9), which declares that "no of- 
 fense committed and no penalty or forfeiture 
 incurred previous to the time when any statuto- 
 ry provision shall be repealed, shall be affected 
 by such repeal," related solely to the acts then 
 repealed, and had no reference to subsequent 
 legislation. The legislature could not declare 
 in advance the intent of subsequent legislatures, 
 or the effect of subsequent legislation upon ex- 
 isting statutes. Ct. App., 1874, Mongeon v. People, 
 55 N. Y. (10 Sick.) 618. 
 
 130. Roads crossing railroads. The pro- 
 visions of sec. 1, ch. 62, Laws of 1853, authoriz- 
 ing the laying out of streets, roads, etc., across 
 any railroad track without compensation, has 
 reference only to tracks used for public traffic. 
 
 including turn-outs and switches, and not those 
 used only for storing cars or making up trains. 
 Ct. App., 1873, Boston ^ Albany R. R. Co. v. Prest., 
 etc. Village of Greenbush, 52 N. Y. (7 Sick.) 510. 
 131. Waiving forfeiture. The forfeiture of 
 the charter of the New York Bridge Company, 
 by its failure to complete the bridge within the 
 time limited by law, was unconditionally waived 
 by ch. 601, Laws of 1874. Sup. Ct., 1876, In 
 matter of N. Y. Bridge Co., 4 Hun, 636. 
 
 STIPULATIONS. 
 
 1. Construction of. A stipulation of par- 
 ties that the decision of the case shall turn 
 wholly upon the question whether, on the evi- 
 dence, the plaintiff is a bona fide owner for 
 value of the notes in controversy, must be deem- 
 ed to have reference to a defense which would 
 be available to the maker against all but a bona 
 fide holder who had parted with value on the 
 faith of them. Ct. App., 1878, Atlantic Nat. Bank 
 of N. Y. V. Franklin, 56 N. Y. (10 Sick.) 235. 
 
 STOCKS. 
 See Bhokeb; fledge. 
 
 1. Not negotiable. The capital stock of an 
 incorporated company is personal property, and 
 it has not, neither has the certificate or other 
 evidence of title, any of the qualities of com- 
 mercial or negotiable paper ; and an unauthor- 
 ized sale, although for a valuable consideration 
 and witliout notice, vests no higher title in the 
 vendee than vraa possessed by the vendor. Ct. 
 App., 1872, Weaver v. Barden, 49 N. Y. (4 Sick.) 
 286 ; Rev'g S. C, 3 Lans. 838. 
 
 2. Although, where the owner has vested an- 
 other with the usual evidence of title or an ap- 
 parent authority to dispose of stocks, he will not 
 be allowed to make a claim as against an inno- 
 cent purchaser dealing with such other upon the 
 faith thereof, yet, an agent of the owner in 
 making the purchase and transfer, who obtains 
 an entry of the transfer to himself, wrongfully 
 and without the knowledge of the owner, is not 
 so clothed by the latter with the indicia of title 
 as to estop him from disputing the title of a 
 purchaser from such agent. lb. 
 
 3. A bona fide purchaser from such agent for 
 a valuable consideration would be protected, 
 even as against the owner ; but, where the con- 
 sideration of the purchase is, in part, the satis- 
 faction of a precedent debt, and in part value 
 paid at the time, he will have a lien merely to 
 the extent of the value so paid ; and upon re- 
 payment of that, a court of equity will compel 
 him to surrender to the true owner. Geoveb, J., 
 dissents. lb. 
 
 4. Title to. The execution of a written as- 
 signment of stocks, together with a delivery of 
 the certificates to the assignee, vests in him the 
 equitable title, notwithstanding a provision con- 
 tained in such certificates that the stock could 
 be transferred only on the company's books ; 
 and a sheriS, who serves an attachment against 
 the assignor upon the officers of the company, 
 after the assignment, but before an actual trans- 
 fer is made on the books, acquires no interest. 
 N. Y. C. P., 1870, Comeau v. Guild Farm Oil 
 Company, 3 Daly, 218. 
 
STOCKHOLDERS— SUBSTITUTION. 
 
 691 
 
 STOCKHOLDERS. 
 See C0RPORA.TI011S'. 
 
 STOPPAGE IN TRANSITU. 
 See Saxe ov covttels. 
 
 STREAMS. 
 See Natioablg stbeamb ; watebooitsbbs. 
 
 STREETS. 
 See Mdnioipal ooepobations. 
 
 STRIKING OUT EVIDENCE. 
 See Practice. 
 
 STRIKING OUT PLEADINGS. 
 See Pleading. 
 
 SUBMISSION OF CONTROVERSY. 
 
 1. The submission. The case, in an action 
 submitted under sec. 372 of the Code, must con- 
 tain all the facts upon which the controversy 
 depends, so as to present to the court only the 
 questions of law arising thereon, otherwise, the 
 court cannot pronounce the practical judgment 
 desired, but must dismiss the proceeding. Ct. 
 App., 1871, Clark v. Wise, 46 N. Y. (1 Sick.) 612. 
 
 2. The submission authorized by sec. 372 of 
 the Code is one of the facts upon whicli the con- 
 troversy depends, and the court is to render the 
 proper judgment as if an action was pending. 
 
 .A submission, consisting of a statement of facts 
 as to a contract for the sale of certain premises, 
 and of the refusal of the purchaser to accept a 
 conveyance on account of certain tax liens, fol- 
 lowed by interrogatories as to the validity of 
 such tax liens, and a provision as to the judg- 
 ment to be rendered by the court in case it shall 
 decide those questions either in the affirmative 
 or negative, is not within the purview of that 
 section. Ct. App., 1875, Wood v. Squires, 60 N. 
 Y. (15 Sick.) 191 ; Rev'g S. C, 1 Hun, 481. 
 
 3. Matters considered. Where a contro- 
 versy is submitted without action, under the 
 Code, the court is confined to the facts agreed 
 upon ; and an admission of a fact involving 
 questions of law must have controlling effect, 
 even though, from other facts stated, the court 
 might consider such admission erroneous. Ct. 
 App., 1874, Fearing V. Irwin, 55 N. Y. (10 Sick.) 
 486 ; Aff'g S. C, 4 Daly, 385. 
 
 4. An infant cannot submit a controversy, 
 under sec. 372 of the Code, nor can his guardian 
 do it in his behalf. Sup. Ct., 1871, Lathers v. 
 Fish, 4 Lans. 213. 
 
 5. Relief granted. Upon a submission of a 
 controversy pursuant to sec. 372 of the Code, 
 the court is bound to give such judgment as the 
 
 facts require, whether the relief be legal or 
 equitable. Sup. Ct., 1875, Graves v. Brinkerhoff, 
 4 Hun, 305. 
 
 SUBROGATION. 
 
 1. Wlio entitled to. If a broker or agent 
 through whom a sale of a note is effected at the 
 usual rate of discount tor notes of solvent per- 
 sons, on demand of the purchaser, after discov- 
 ery by the latter of the insolvency of the par- 
 ties to the note, refunds to him the consideration 
 paid, he succeeds to all the rights and remedies 
 of the purchaser as against his principals. N. 
 Y. Supr. Ct., Stewart v. Orvis, 47 How. 518. 
 
 2. £[isuranoe company. A company which 
 insures a mortgage interest, being bound to pay 
 a loss provided for by the policy to the extent 
 of its liability, notwithstanding the remaining 
 property may be sufficient to satisfy the debt, 
 upon making compensation is entitled to be sub- 
 rogated to the rights of the insured. Ct. App., 
 1873, Excelsior F. Ins. Co. v. Roi/al Ins. G>. of 
 Liverpool, 55 N. Y. (10 Sick.) 848.' 
 
 3. Purchaser of usurious securities. A 
 purchaser of a bond and mortgage, given in place 
 of and for the exact amount owing upon a prior 
 valid bond and mortgage, in case such new se- 
 curities are tainted with usury by reason of an 
 extrinsic transaction between the parties and is 
 avoided for that reason, is entitled to be sub- 
 rogated to the rights of the mortgagee, and may 
 enforce the original mortgage. Sup. Ct., 1873, 
 Get-wig V. Shetterly, 64 Barb. 620; Aff'd, S. C, 
 56 N. Y. (11 Sick.) 214. 
 
 4. Surety. The cancellation by a creditor, 
 holding two notes against the same party, one 
 being indorsed by a surety, of a mortgage held 
 as collateral to the other note, and the taking of 
 a new mortgage on the same property as se- 
 curity for both, although it may impose upon 
 such creditor a liability to an indorser upon the 
 note originally secured, does not affect the right 
 of the surety upon tlie other to subrogation. Ct. 
 App., 1874, Cory v. Leonard, 56 N. Y. (11 Sick.) 
 494. 
 
 5. As between himself and such surety, the 
 creditor is bound to preserve the security unim- 
 paired, that it may be available to the latter to 
 pay the debt ; and though he transfers the same, 
 with both notes, to the indorser upon the other 
 note, the right of subrogation is not gone, but 
 such indorser takes subject to the same obliga- 
 tion, lb. 
 
 SUBSCRIPTION. 
 See Actions ; contracts. 
 
 SUBSCRIBING WITNESS. 
 See EriDBNCE ; will. 
 
 SUBSTITUTION. 
 See Peactiob. 
 
692 
 
 SUMMARY PROCEEDINGS. 
 
 SUMMARY PROCEEDINGS TO RECOVER 
 POSSESSION OF LAND. 
 
 1. 'Who can maintain. Unless the relation 
 of landlord and tenant exists between the par- 
 ties, the person in possession cannot be removed 
 under the landlord- and tenant act. Sup. Ct., 
 1874, People ex rel. Daniels v. Cushman, 1 Hun, 
 73. 
 
 . 2. Where parties to whom a certain portion of 
 a pier had been assigned for loading and un- 
 loading their canal boats, agreed with the lessee 
 of tlie pier to pay him $50 per month for the 
 privilege of placing a derrick, scales and an 
 office on the part used by them, — Held, that 
 tliis agreement did not create the relation of 
 landlord, and tenant. lb. 
 ; 3. In a proceeding under the statute to remove 
 a person from a portion of a pier, described in 
 tlie complaint by metes and bounds, if the agree- 
 ment proved at the trial does not amount to a 
 lease of the premises described, tlie variance is 
 fatal. lb. 
 
 4. If a tenant abandons the demised premises 
 before the expiration of his lease, and another 
 person immediately takes possession without his 
 privity or consent, no such relation between him 
 and the lessor arises from such occupancy as 
 will authorize the latter to remove him by sum- 
 mary proceedings for holding oyer after the 
 term. Sup. Ct., 1871, People ex rel. Sliker v. 
 Hovey, 4 Lans. 86. 
 
 6. A mere verbal declaration made to the 
 lessor by the intruder at the time of so taking 
 possession, that he did so under the tenant, could 
 not create the relation of landlord and tenant 
 between them. lb. 
 
 6. A sale of the demised premises, conditioned 
 upon delivery of possession, does not divest the 
 landlord of title so but he may maintain sum- 
 mary proceedings against his tenant. Com. 
 App., 1871, Miller v. Uvi, 44 N. Y. (5 Hand,) 
 488. 
 
 7. The appropriation of land by the public 
 authorities for a street, does not affect the rights 
 of the owner to occupy it, or to maintain sum- 
 mary proceedings to dispossess his tenant hold- 
 ing over the same, until the opening of the street 
 is actually commenced. Sup. Ct., 1871, Gillilan 
 V. Spratt, 41 How. 27 ; S. C, 3 Daly, 440 ; Over- 
 ruling S. C, 8 Abb. N. S. 13. 
 
 8. Where a lessor of premises, in part owned 
 by him and in part held by him under lease, at 
 his death devised and>bequeathed to his son, all 
 of his real estate and the residue of all his estate, 
 — Held, that there was a sufficient unity of in- 
 terest and of the right of possession between 
 such son and the executors of his father's estate 
 to enable them jointly to institute and maintain 
 summary proceedings against the tenant for non- 
 payment of rent. Ct. App., 1874, People ex rel. 
 Grissler V. Dudley, 58 S. Y. (13 Sick.) 323. 
 
 9. Apportionment of rent in cases where it is 
 permitted, is for the benefit of the owners, and 
 the omission to apportion is not a matter of 
 which the tenant can complain, unless some- 
 thing has transpired to relieve him from a just 
 liability to pay the whole rent. lb. 
 
 10. Against -whom. Where a landlord fore- 
 closes a mortgage given..by his tenants of their 
 leasehold interest, and a deed is given to the 
 purchasers at the sale conveying the leased 
 premises " to have and to hold the same for the; 
 unexpired term of the said, leases," such pur- 
 chasers become, in effect, assignees of the leases, 
 and liable to pay th& rent reserved, and they 
 may be removed by summary proceedings for 
 
 non-payment thereof. Sup. Ct, 1874, People ex 
 ,rel. Grissler v. Stuyvesant, 1 Hun, 102. Same v. 
 Fowler, id. 104, note. Aff'd by Ct. App. 
 
 11. If such foreclosure be after the landlord 
 has entered under a warrant for dispossession, 
 he thereby waives the forfeiture, and the pur- 
 chasers take unaffected by the previous entry, 
 lb. 
 
 12. Although premises of which the landlord 
 held the fee, arid others in which he held only a 
 'leasehold interest, are included in one lease 
 given by him, and on his death he devises the 
 premises in which he had the fee, subject to the 
 lease, to his son, and the others pass to his exec- 
 utor, the rent is not thereby apportioned, but 
 remains an entirety so far as the tenants are con- 
 cerned, and the heir and executor may maintain 
 proceedings for dispossession on non-payment 
 thereof. lb. 
 
 13. The demand for rent may be made by an 
 agent as well as by the landlord himself ; and 
 interest thereon may also be demanded at the 
 same time. lb. 
 
 A person holding over after foreclosure of a mort- 
 gage &n the premises can he removed by- summary 
 ^proceedings, ch. 208, Laws of 1874 ; also a cropper 
 on shares, ch. 471, Laws of 1S74. 
 
 14. Jurisdiction. Where, by the conditions 
 of a lease, the landlord was to have the right, in 
 case he should sell or desire to rebuild, to ter- 
 minate the lease by giving 60days' notice to the 
 tenant, the latter, after sale and the expiration 
 of the notice, becomes a tenant holding over 
 after his term, within the meaning of the statute 
 authorizing summary proceedings for the re- 
 covery of demised premises, and may be pro- 
 ceeded against under that act. Com. App., 1871, 
 Miller V. Levi, 44 N. Y. {6 Hand,) 488. 
 
 15. In order to confer jurisdiction of an action 
 by a claimant under a tax deed issued by the 
 city of Brooklyn, brought under the charter of 
 that city (ch.' 384, Laws of 1854), the affidavit 
 presented to the magistrate must show that the 
 applicant is entitled to the actual possession of 
 the premises. ,An affidavit stating simply that 
 the defendant is in possession and has refused to 
 deliver possession to the plaintiff upon demand 
 is insufficient. Ct. App., 1873, People ex rel. 
 Sheridan v. Andrews, 52 N. Y. (7 Sick.) 445. 
 
 16. The summons in such case should be 
 returnable in not less than three nor more than 
 five days. One returnable on the same day is 
 unauthorized and confers no jurisdiction. lb. 
 
 17. Service of summons. Where the sum- 
 mons was issued on the 21st of November and 
 made returnable on the 25th, — ffeld, that ser- 
 vice thereof on the 23d was sufficient, under 
 sec. 2, ch. 828, Laws of 1868. Sup. Ct., 1875, 
 People ex rel. Frost v. Marine Safe Co., 6 Hun, 
 218. 
 
 18. Proof of service. The constable who 
 made the service may be sworn and testify to 
 the facts relating thereto, even though he may 
 have made a written return by affidavit, and if 
 due service is proved by such evidence that is 
 sufficient to give the justice jurisdiction. Sup. 
 Ct., 1871, Robinson v. McManus, 4 Lans. 880. 
 
 19. The trial of the matters in controversy 
 in summary proceedings to remove a tenant 
 holding over may, under 2 R. S. 514, sec. 34, as 
 amended by ch. 684, Laws 1857 (2 Edm. Stats. 
 530), be by the magistrate without a jury, 
 unless a jury is demanded. Sup. Ct., 1871, 
 People ex rel. Sliker v. Hovey, 4 Lans. 86. 
 
 20. Demand of rent. A demand of rent 
 with interest did not invalidate summary pro- 
 ceedings for the recovery of the premises de- 
 
SUNDAY— SUPERINTENDENT OF INSURANCE. 
 
 693 
 
 toised, since interest is an incident of the prin- 
 cipal debt and the landlord is entitled to it from 
 the time of default in payment. Ct. App., 1874, 
 People ex rel. Grissler v. Dudley, 58 N. Y. (18 
 Sick.) 328. 
 
 21. Defense. In a case where the plaintiff 
 has given evidence tending to show that the de- 
 fendant went into possession by his permission, 
 and upon an agreement that she should go out 
 when requested, the defendant denying such 
 agreement and claiming that she entered in right 
 of her children, and that plaintiff had given her 
 the premises in consideration of services ren- 
 dered liim, sliould be permitted to introduce 
 evidence to sustain such defense. Sup. Ct., 1874, 
 People ex rel. Murphy v. Lodcwood, 3 Hun, 304. 
 
 22. Adjournment. There is no provision of 
 the statute authorizinganadjournment after the 
 trial of summary proceedings to dispossess a 
 tenant, and an indefinite adjournment or post- 
 ponement for deliberation and decision, ousts the 
 justice of jurisdiction. Sup. Ct., 1871, Gillilan 
 V. Spratt, 41 How. 27 ; S. C, 3 Daly, 440 ; Over- 
 ruling S. C, 8 Abb. N. S. 13. 
 
 23. A certiorari to review summary pro- 
 ceedings brings up any question of law arising 
 eitlier in tlie proceedings or on the trial before 
 the justice, and enough of the evidence to enable 
 the court to determine whether the relation of 
 landlord and tenant existed betwefen the parties. 
 Sup. Ct., 1874, People ex rel. Murphy v. Lodcwood, 
 3 Hun, 304. 
 
 24. Although the judgment of the justice may 
 be reversed for error, yet, if the right of the 
 relator to tlie possession is not clear, restitution 
 will not be awarded nor costs given. lb. 
 
 25. Damages on reversal Upon the rever- 
 sal on appeal of a judgment in favor of the land- 
 lord against an undertenant, the latter may re- 
 cover damages under 2 K. S. 516, sec. 49 (2 
 Edm. Stats. 683), he being a tenant within the 
 meaning of that statute. N. Y. Supr. Ct., 1874, 
 Eten V. Luyster, 37 N. Y. Supr. (5 J. & Sp.) 486. 
 
 26. Tlie previous voluntary surrender of the 
 term to the lessor by the lessee from whom such 
 undertenant took his lease will not affect his 
 rights in tliat respect. lb. 
 
 27. Enjoining. Except where the proceed- 
 ings are fraudulent or collusive, or the magistrate 
 has no jurisdiction, a court of equity has no 
 power to enjoin summary proceedings before a 
 justice to remove a tenant from demised prem- 
 ises. Ct. App., 1872, Sherman v. Wright, 49 N. 
 Y. (4 Sick.) 227. 
 
 28. Redemption of unexpired term. A 
 lessee, or liis receiver, mortgagee or judgment 
 creditor, in order to redeem the unexpired term, 
 after the landlord has been put in possession of 
 the demised premises by summary proceedings 
 under the statute, must pay a sum equal to all 
 the rent in arrear at the time of the payment, 
 and all costs and charges incurred by the land- 
 lord, without deduction for any rents or other 
 Income or benefit received by the landlord, wliile 
 in possession subsequent to tlie execution of the 
 warrant. Sup. Ct. Sp. T., 1873, Crawford v. 
 Waters, 46 How. 210. 
 
 29. If the landlord can be called upon to ac- 
 count for rents, etc., so received, it can only be 
 done after redemption and restoration of posses- 
 sion, lb. 
 
 30. If the sum paid in order to redeem be too 
 small, and yet the landlord receives and retains 
 it, th^t will be at least a parol acknowledgment 
 of a tenancy, if it does not restore the lease. lb. 
 
 31. If there be a question whether the land- 
 lord did not, in so receiving such sum, suppose 
 
 it was for rents collected by the redeeming party 
 since dispossession, a reference should be order- 
 ed for the purpose of an accounting. lb. 
 
 SUNDAY. 
 
 1. Construction of statute. The object of 
 the statute prohibiting work, labor and travel 
 on Sunday, was to prevent the day from being 
 employed in servile work, which is exhausting 
 to tlie body, or in mere idle pastime subversive 
 of that order, thrift and economy of health and 
 substance which is necessary to the preser- 
 vation of society. It was never intended to pro- 
 hibit such a use of tlie day as would be condu- 
 cive to the health and necessary recreation of 
 tlie citizen, and not disturb or hinder others in 
 ttieir enjoyment or improvement of it. Brooklyn 
 City Ct., 1872, Landers v. Staten Island R. R. 
 Co., 13 Abb. N. S. 838. 
 
 2. Carriers of passengers who hold out in- 
 ducements to persons to take passage on their 
 boats on Sunday, are liable for personal inju- 
 ries suffered by such passengers in consequence 
 of the negligence of the carriers' servants, not- 
 withstanding the statutes prohibiting travel on 
 tliat day. lb, 
 
 3. Instrnctiiig jury. If a jury to which a 
 case is submitted on Saturday night, come into 
 court on Sunday, saying that they have not 
 agreed, and requesting furtlier instructions, and 
 tlie court instructs them as requested, the par- 
 ties being present and not objecting, their ver- 
 dict afterward given will -not be set aside, under 
 the statute, for that cause, such charge being 
 like any other unauthorized communication, and 
 the consent of the parties being a waiver of the 
 objection. Sup. Ct., 1875, Roberts v. Bower, 5 
 Hun, 558. 
 
 4. Society meetings. Tlie statute relative 
 to the observance of Sunday does not apply to 
 or forbid the holding of business meetings of a 
 benevolent society, or transacting its business 
 on that day. Sup. Ct., 1873, People ex rel. Cor- 
 rigan v. Young Men's Father Malhew Ben. So., 65 
 Barb. 357. 
 
 5. An individual belonging to such a society, 
 which holds its regular meetings on Sunday, 
 cannot object to the sufficiency of a notice, 
 served on that day, for his attendance at the 
 next meeting to answer charges against him. lb. 
 
 6. Traveling. Although traveling on Sun- 
 day, except for certain specified purposes, is pro- 
 hibited, yet it is no defense to an action against a 
 carrier for an injury to a passenger caused by 
 liis negligence, that the plaintiff was at the time 
 traveling on Sunday in violation of law, or that 
 the contract for his transportation was made on 
 Sunday. Sup. Ct., 1873, Carroll v. Staten Isl. 
 R. R. Co. 65 Barb. 32 ; Aff'd, S. C, 58 N. Y. 
 (13 Sick.) 126. 
 
 SUPERINTENDENT OF INSURANCE. 
 
 1. Compensation. Tlie percentage required 
 to be paid by insurance companies to the super- 
 intendent of insurance on making a transfer of 
 the securities deposited with liim, under the 
 provisions of cli. 492, Laws of 1870, was intended 
 as compensation to the superintendent for his 
 services in making the transfer, and he cannot 
 be compelled to pay the same over into the State 
 treasury. Ct. App., 1874, People v. Miller, 56 
 N. Y. (11 Sick.) 448. 
 
694 SUPERINTENDENTS OF POOR— SUPERIOR COURT. 
 
 SUPERINTENDENTS OF POOR. 
 
 1. Supervisor ineligible. A person who 
 holds tlie office of supervisor at the time of an 
 election for superintendent of the poor, is, un- 
 der cli. 352, Laws 1829, and ch. 80, Laws 1853, 
 disqualified for the latter ofSce, and rotes for 
 liim with knowledge of his disqualification are 
 not to be counted. His subsequent resignation 
 does not remove the disability. Sup. Gt, 1872, 
 People fx rel. Fnrman v. Clute, 12 Abb. N. S. 
 399 ; Aft'd, S. C, 63 Barb. 356 ; 60 N. Y. (5 
 Sick.) 451. 
 
 2. The charter of Schenectady makes a su- 
 pervisor of a ward of that city subject to the 
 same disqualifications as supervisors of towns, 
 lb. 
 
 3. A provision of the session laws prohibiting 
 the appointment of a supervisor to the office of 
 superintendent, having been inserted in several 
 editions of the Revised Statutes as a part thereof, 
 allliough never recognized as such by the legis- 
 lature, an act referring to such provision by its 
 numbering as a part of the Revised Statutes, and 
 amending it so as to prohibit the election of a 
 supervisor to that office, is effectual for that pur- 
 pose, lb. 
 
 4. Majority may act. In all matters com- 
 mitted to them by statute, including the au- 
 thority to bind out minors as apprentices, a ma- 
 jority of the superintendents of the poor may 
 act, irrespective of any consultation with the 
 minority. Ct. App., 1874, Johnson v. Dodd, 56 
 N. Y. (11 Sick.) 76. 
 
 SUPERIOR COURT. 
 
 1. Jurisdiction. The Superior Court of New 
 York City may claim jurisdiction over any and 
 every action of which the Supreme or any other 
 court has cognizance, whether the cause of ac- 
 tion be of an equitable or legal nature, provided 
 the defendant resides, or can be served with 
 process within that city. N. Y. Supr. Ct., 1872, 
 Van Pelt v. U. S. Metallic Spring, etc. Co., 13 
 Abb. N. S. 325; S. C, 35 N. Y. Supr. (3 J. & 
 Sp.) 111. 
 
 2. That court, therefore, has jurisdiction of 
 an action against a corporation of this State, 
 having a place of business in the city of New 
 York, in favor of a creditor, to procure a dissolu- 
 tion of the corporation and a sequestration of its 
 effects, under the provisions of 2 R. S. 463, sec. 
 36 (2-Edm. Stats. 483). lb. 
 
 3. The Superior Court of the city of New 
 York has jurisdiction to grant a divorce and 
 allow alimony, where the parties are properly 
 before the court, and if no provision as to 
 alimony is made in the judgment of divorce, it 
 may allow and make provisions for its being 
 secured upon and paid out of the defendant's 
 property, by a subsequent order. Sup. Ct., 1873, 
 Kamp V. Kamp, 46 How. 143. 
 
 4. The equity powers previously conferred by 
 law upon the Superior Court, were confirmed by 
 art. 6 of the constitution of 1869, and made con- 
 current and co-extensive with those of the 
 Supreme Court. It has, therefore, jurisdiction 
 of an action against the corporation of the city of 
 New York to vacate an assessment as a cloud 
 upon title. N. Y. Supr. Ct., 1874, Astor v. Mai/or, 
 etc. of New York, 37 N. Y. Supr. (6 J. &Sp.) 539. 
 
 5. The Superior Court of . New York has 
 jurisdiction of an action to foreclose a mortgage 
 of premises situated in the co,imty of New 
 
 York, although the defendant was served with 
 summons out of the county ; especially, when 
 he appears and answers without objecting to the 
 jurisdiction. N. Y. Sujir. Ct., 1874, Eitd v. 
 Bracken, 38 N. Y. Supr. (6 J. & Sp.) 7. 
 
 6. The Superior Court has the same jurisdic- 
 tion in equity cases as the Supreme Court and 
 the late Court of Chancery, and can decree 
 specific performance of a contract for the sale of 
 lands lying in another State, if it has acquired 
 jurisdiction of the parties by service of process 
 or otherwise. N, Y. Supr. Ct., 1875, Baldwin v. 
 Talmadge, 39 N. Y. Supr. (7 J. & Sp.) 400. 
 
 7. Territorial jurisdiction. Under the de- 
 cision of the Court of Appeals in the case of 
 Landers v. Stolen Isl. R. B. Co. (14 Abb. N. S. 
 346), the provisions of ch. 239, Laws of 1873, 
 attempting to extend the territorial jurisdic- 
 tion of the Superior Court, is unconstitutional; 
 and the court couI4 acquire no jurisdiction of 
 the person of a sole defendant residing in the 
 city of Buffalo, by service of summons and com- 
 plaint on him there. N. Y. Supr. Ct, 1874, 
 Spyer v. Fisher, 37 N. Y. Supr. (5 J. & Sp.) 93. 
 
 8. A voluntary appearance by such defendant, 
 without raising the objection by demurrer or 
 answer, waives it and confers jurisdiction. lb. 
 
 9. Juries in. The Superior Court of the 
 city of Buffalo, upon the trial of a criminal in- 
 dictment,, has power, in case the panel of 
 jurors is exhausted, to summon talesmen in ac- 
 cordance with the provisions of 2 R. S. 733, sec. 
 3, and is not limited to the method prescribed by 
 ch. 754 of the Laws of 1857. Ct. App., 1872, 
 Gaffney t. People, 50 N. Y. (5 Sick.) 416. 
 
 10. Removing cause to Supreme Court. 
 The provisions of ch. 239, Laws of 1873, for the 
 removal of causes from the Superior to the 
 Supreme Court, and a change of the place of 
 trial, are constitutional and valid, and not af- . 
 fected by the decision that the provision therein 
 for the extension of the jurisdiction of the 
 Superior Courts is unconstitutional. Sup. Ct., 
 1874, Darragh v. McKin, 2 Hun, 337. 
 
 11. A motion for such removal must be made 
 with reasonable diligence after issue joined. 
 A delay of nearly a year, and the loss of two 
 circuits at which it might have been tried, if 
 the removal had been promptly applied for, is 
 good cause for denying it. ■ lb. 
 
 12. Perpetuating testimony. In proceed- 
 ings for perpetuating testimony, the judges of the 
 Superior Court act as quasi Supreme Court com- 
 missioners ; and they may act although the 
 action in which the testimony is taken is pend- 
 ing in some other court. N. Y. Supr. Ct. 
 Chambers, 1875, Fonda v. Armour, 49 How. 72. 
 
 13. They can, however, perform no judicial 
 function whatever out of the city of New York, 
 and though tliey may summon witnesses for ex- 
 amination, they cannot go out of the city to take 
 the examination. lb. 
 
 14. The crier. A crier of the Superior 
 Court of the city of New York, lawfully ap- 
 pointed by the judge of that court in 1870, in 
 pursuance of sec. 39 of the Code, and performing 
 the duties of that office in 1872, with the consent 
 and approbation of said judge, is entitled to be 
 paid by the city comptroller his salary, as pre- 
 viously fixed by law, notwithstanding the ap- 
 pointment of the full number of officers allowed 
 to that court by ch. 438, Laws of 1872, not 
 including such crier. Sup. Ct. Sp. T., 1873, 
 People ex rel. O'Brien v. Green, 46 How. 160. 
 
SUPERVISORS— SURRENDER. 
 
 695 
 
 SUPERVISORS. 
 
 Powers increased. Chaps. 274, 695, Laws of 
 1871 ; ch. 323, Laws o/187S. 
 
 Legislative powers of, ch. 819, Laws of 1872 ; ch. 
 119, £a!oso/' 1873. 
 
 1. Actions by. The supervisors of a county 
 can maintain an action to recover back moneys 
 fraudulently drawn from the county treasury by 
 a public officer, on fictitious or fraudulent claims 
 allowed by him, and misapplied or converted to 
 his own use. Sup. Ct., 1872, Supervisors of New 
 York V. Tweed, 13 Abb. N. S. 162. 
 
 2. Auditing claims. The refusal of the 
 board of supervisors, at one time, to recognize 
 and allow just claims for the refunding of taxes 
 illegally assessed, will not preclude them from 
 subsequently allowing and paying the same, and 
 when they have so done, no future board of 
 supervisors can annul or revoke that action by 
 resolution. Sup. Ct., 1875, People ex rel. Matt. v. 
 Board of Sups, of Greene Co., 5 Hun, 650. 
 
 3. A board of supervisors has no power to 
 audit and allow accounts not legally chargeable 
 to its county ; and if it attempts to do so, it is 
 an act in excess of its jurisdiction, and is null 
 and void, and not binding or conclusive upon 
 another board. Ct App., 1875, Board of Sups, of 
 Richmond Co. v. Ellis, 59 N. Y. (14 Sick.) 620. 
 
 4. Such board cannot lawfully allow to one of 
 its own number an account for services or 
 mileage while acting on a committee of the 
 board when the board was not in session, since 
 supervisors are expressly prohibited by law from 
 receiving other compensation than their per diem 
 and mileage during their sessions. lb. 
 
 5. No provision is made for such a case by sec. 
 2, ch. 242, Laws of 1870, but that simply applies 
 to services rendered to their towns. lb. 
 
 6. The county has no such interest in the 
 question of the right of an individual to a public 
 office, as that the board of supervisors can law- 
 fully engage it to a participation in the litiga- 
 tion, and a payment of the costs and charges 
 thereof. lb. 
 
 7. Compromise by. County supervisors 
 are authorized by law to bring and manage suits, 
 and also to make such orders concerning the 
 corporate property as they may deem expedient, 
 and as incident to either of those powers, they 
 may compromise and settle a judgment re- 
 covered by them in favor of the county, pending 
 an appeal therefrom. Sup. Ct., 1871, Board of 
 Supervisors of Orleans Co. v. Bowen, 4 Lans. 24. 
 
 8. If they accept a stipulation for such a com- 
 promise, though not signed by their attorney as 
 therein provided, and receive and retain money 
 paid in pursuance of it, they and their successors 
 in office are bound by it, and cannot rescind 
 their action in relation thereto. lb. 
 
 9. Receipt of moneys by. A supervisor 
 as such has no authority to receive moneys 
 raised by tax for the relief of the poor of towns, 
 or for highway purposes, even in transit. Con- 
 sequently the sureties in his official bond are not 
 liable for such moneys received by him, though 
 paid over to him by the town collector in pur- 
 suance of directions in his warrant. Ct. App., 
 1875, People v.Pennock, 60 N. Y.,(15 Sick.) 421. 
 
 10. Pees for services. Under ch. 855, Laws 
 1869, supervisors, whose compensation is not 
 specially provided for by law, are entitled to 
 only $3 per day for each full day's services dur- 
 ing the sessions of the board, besides mileage, 
 and to no other compensation unless specially 
 provided for by law ; and a custom to pay them 
 
 $5 per day for services on committees is illegal 
 Sup. Ct., 1874, Board of Supervisors of Richmond 
 Co. v. Van Olief, 1 Hun, 454 ; AfE'd, S. C, 60 N. 
 Y. (15 Sick.) 645. 
 
 SUPPLEMENTARY PROCEEDINGS. 
 See Practice. 
 
 SUPREME COURT. 
 
 1. Jurisdiction. Section 16 of ch. 280, Laws 
 of 1847, clearly confers the powers and jurisdic- 
 tion'bf the Court of Chancery upon the Supreme 
 Court, and thos? enjoyed and exercised by tlie 
 chancellor upon the justices of the Supreme 
 Court. Sup. Ct. Sp. T., 1875, In matter of Mc- 
 Conihe v. Exchange Bank of Lansingburgh, 49 How. 
 422. 
 
 2. That court and a referee take the place of 
 the former chancellor and the master in chancery 
 in ordering and making the examination into the 
 affairs of a monied corporation authorized by 
 the act of 1838. lb. 
 
 3. Judges, 'Who may hold term when tTvo 
 disqualified. In case of the disqualification of 
 two of tlie judges assigned to the General Term 
 of the Supreme Court in the first department to 
 sit on an appeal, by reason of interest, the term 
 may be held by one of the justices of that de- 
 partment, and two from another department, 
 who are assigned to hold General Terms. In 
 such a case, the appeal need not be sent to an- 
 other department, under sec. 10, ch. 408, Laws 
 of 1870. Sup. Ct., 1872, In matter of Broadway 
 widening, 63 Barb. 572. 
 
 4. Removal of causes to. It was not tlie 
 intent of the provision of the Code (subd. 2, sec. 
 33), respecting the removal of cases pending in 
 the Superior Court or Common Pleas for the city 
 and county of New York into that court, to au- 
 thorize such removal except upon an application 
 showing the propriety of changing the place of 
 trial from the city of New York. Sup. Ct., 1871, 
 Joslyn V. Fisk, 59 Barb. 308. 
 
 5. The pendency of five actions in the Su- 
 preme Court, is not ground for the removal of 16 
 other actions for similar causes of action, from 
 the Superior Court and Common Pleas to the 
 former court. lb. 
 
 SURETY. 
 See Principal and surety. 
 
 SURPLUSAGE. 
 See Pleadino. 
 
 SURPRISE. 
 See New trial. 
 
 SURRENDER. 
 See Landlord and tenant. 
 
696 
 
 SURROGATE. 
 
 "SURROGATE. 
 
 Appeals from, See ch. 603, Laws of 1871. Powers 
 and jurisdiction, amendatory acts, chaps. 482, 834, 
 Laws o/isn ; ch. 211, Laws of 1873. Records of, 
 ch. 9, Laws of 1874. 
 
 1. 'When disqualified, 'who may act. 
 
 Under ch. 859, Laws of 1871, the district attor- 
 ney of the county is authorized to act as surro- 
 gate, when both the county judge and surrogate 
 are interested and cannot act, and the special 
 county judge is unable to give the bonds requir- 
 ed by law. Sup. Ct., 1875, Bolmes v. Smith, 3 
 Hun, 413. 
 
 2. Juiisdictioii. The jurisdiction of- surro- 
 gates over estates depends upon the death of the 
 owners. Neither the legislature nor the courts 
 can confer upon them jurisdiction of the estates 
 of living persons. N. Y. Supr. Ct., Sp. T., 1874, 
 Roderigas v. East River Savings Inst., 48 How. 166. 
 
 3. Po-wers. The jurisdiction of a surrogate 
 is peculiar and limited, and does not include the 
 power to enforce the set-off of mutual judgments 
 in favor of and against the estate, which power 
 is equitably in its nature ; and his decree allow- 
 ing a judgment against an estate does not pre- 
 vent an application to the proper tribunal to en- 
 force such a set-off. Ct. App., 1876, Stilwell v. 
 Cai-penter, 59 N. Y. (14 Sick.) 414. 
 
 4. Attachment for contempt. Surrogates' 
 courts have power to enforce the discharge of 
 duty by executors, in obedience to their lawful 
 orders or decrees, by attachment. Surr. Ct., 
 1874, Timpson's Estate, 15 Abb. N. S. 230. 
 
 5. Thus, an executor who has converted and 
 lost funds belonging to a devisee, may properly 
 be attached for his omission to pay them over in 
 obedience to an order of the court, and his ina- 
 bility to perform that duty, resulting from his 
 own act or neglect, does not relieve him from 
 liability to such attachment. lb. 
 
 6. Tlie power conferred by statute (2 R. S. 221, 
 sec. 6, subd. 4; 2 Edm. Stats. 231) upon surro- 
 gates, to enforce " all lawful orders, processes," 
 etc., by attacliment against the person, does not 
 autliorize him to inflict a fine for disobedience of 
 an order to pay over money, and tlien commit 
 upon the fine ; but he can simply issue a precept 
 in the nature of a capias ad satisfaciendum to 
 commit tlie person so disobeying until such sum 
 and the costs and expenses of the proceeding are 
 paid. Sup. Ct., 1872, In matter of Watson, 5Lans. 
 466 ; Aff'g S. C, 3 Lans. 408. 
 
 7. Allo'wance of costs. An allowance in 
 lieu of costs to an unsuccessful contestant of a 
 will, tliough authorised by ch. 359, Laws of 1870, 
 relating to the surrogate's court in the county of 
 New York, should be granted only in exceptional 
 cases. Surr. Ct., 1871, Taylor Will case, 10 Abb. 
 N. S. 300. 
 
 8. A surrogate has no power to allow a sum in 
 gross for counsel fees ; lie can only award taxa- 
 ble costs. Ct. App., 1873, Reed v. Reed, 52 N. Y. 
 (7 Sick.) 651. 
 
 9. Execution against real estate of de- 
 ceased. Although the authority conferred upon 
 the surrogate by ch. 295, Laws of 1850 (4 Edm. 
 Stats. 634), to allow the issuing of an execution 
 upon a judgment is confined to judgments which 
 are a /ten upon the real estate of tlie deceased 
 debtor, yet an order allowing an execution to| 
 issue, made by him wliile the judgment lien con- 
 tinues, has the effect to revive it against the heirs 
 of the deceased debtor, and as to them the 
 lands become bound from that time, and may be 
 sold on the execution after 10 years from the 
 
 time the judgment was docketed. N. T. Supr 
 Ct., 1872, Beard v. Sinnott, 35 N. Y Supr. (3 J 
 •& Sp.) 51. 
 
 10. On remittitur. The surrogate has no 
 discretion, upon remittitur from the Supreme 
 Court afBrming his decree as to a part of the 
 claims allowed, and directing a further hearing 
 as to others, to re-open such former decree as to 
 the claims affirmed and grant a new hearing for 
 error of law. Ct. App., 1873, Reed v. Reed, 52 
 N. Y. (7 Sick.) 651. 
 
 11. Inability for moneys in his hands. A 
 surrogate who receives moneys from his prede- 
 cessor belonging to different estates, and pays 
 claims presented out of the same, without taking 
 pains to ascertain to what estates the funds be- 
 long, although having the means at hand to do 
 so, is liable to parties whose funds are so wrong- 
 fully paid out by him to the amount thereof. 
 Sup. Ct., 1874, Disbrow v. Mills, 2 Hun, 132. 
 
 12. Probate of -wrills. Service of a citation 
 for the probate of a will made by the executor 
 of a legatee, is legal and valid, and their affida- 
 vits of service are competent proof thereof. 
 Sup. Ct., 1872, Wetmore v. Parker, 7 Lans. 121 ; 
 Aff'd, S. C, 52 N. Y. (7 Sick.) 450. 
 
 13. The probate by the surrogate is conclu- 
 sive, unless reversed on appeal or revoked by 
 himself ; and it cannot be attacked collaterally 
 for an irregularity in the service of the citation, 
 lb. 
 
 .14. An order in proceedings under ch. 384, 
 Laws of 1840, to prove an exemplified copy of a 
 foreign will, adjudging that the instrument so 
 offered for probate was not the last will and tes- 
 tament of the deceased, sufficient at law to pass 
 either real or personal property, made upon the 
 ground that the case was not brought within the 
 provisions of the statute, is no bar to a subse- 
 quent application to a surrogate for probate of 
 the original will. Ct. App., 1872, Matter of Will 
 of Diez, 50 N. Y. (6.Sick.) 88. 
 
 15. Discontinuance of proceedings. A 
 surrogate has power to allow tlie proponent of 
 a will to withdraw the same and discontinue the 
 proceedings for probate thereof. Sup. Ct., 1874, 
 Heermans v. Hill, 2 Hun, 409. 
 
 16. Re-opening probate 6f 'will. Proceed- 
 ings to contest the validity of a will which has 
 once been admitted to probate, instituted by next 
 of kin, under 2 R. S. 60, sec. 30, do not abate by 
 the death of the contestant, but the surrogate 
 has power to direct the continuance of the same, 
 and the substitution of the personal representa- 
 tives of such contestant. Sup. Ct., 1875, Van 
 Alen V. Hewins, 5 Hun, 44. 
 
 17. Granting letters. The provision of the 
 statutes regulating the granting of letters testa- 
 mentary (2 R. S. 69, sec. 1), that the surrogate 
 taking the proof of a will of personal property 
 sliall issue letters thereon " to the person named 
 therein as executor," is to be liberally construed 
 in furtherance of justice, and so Construed he 
 may issue letters to any one of whose authority 
 the will is the source. Grovbr and Folqek, 
 JJ., dissent. Ct. App., 1875, Hartwell v. Wan- 
 dell, 60 N. Y. (15 Sick.) 346 ; Rev'g S. C, 2 
 Hun, 552. 
 
 18. Where a testator appointed his wife ex- 
 ecutrix, and in his will requested " that such 
 male friend as she may desire Bhall be ap- 
 pointed with her as executor," letters testamen- 
 tary may properly be issued to a person named 
 by her as executor. lb. 
 
 19. She could not exercise the power of ap- 
 pointment until she had herself qualified. lb. 
 
 20. Creditors and others having an interest in 
 
SURROGATE. 
 
 697 
 
 the estate, and having a statutory right to object 
 to an executor, have the right to apply to the 
 surrogate for the removal of an executor so 
 appointed if for any reason he is incompetent, 
 lb. 
 
 21. Removal of executor. The power to 
 remove executors and administrators is wholly 
 independent of any other power conferred by 
 law upon the surrogate ; and, in order to give 
 him jurisdiction of such a proceeding, it must 
 appear, not only tliat application was made in 
 conformity to law, and a citation issued thereon, 
 but, also, that such citation was served in the 
 manner prescribed by statute. N. Y. Supr. Ct., 
 1870, People ex rel. Meyer v. Hartman, 2 Sweeny, 
 576. 
 
 22. Wliether the circumstances of an executor 
 are so " precarious " as not to afford adequate 
 security for his due administration of the estate, 
 as to require the surrogate to remove him, under 
 2 R. S. 72, sec. 18 (2 Edra. Stats. 73), must de- 
 pend upon the facts and rircumstances of the 
 particular case ; of which the surrogate is the 
 appropriate judge. Sup. Ct., 1870, Shields v. 
 SAiWds, 60 Barb. 56. 
 
 23. Tliey are to be deemed thus precarious 
 only when tlie character and 'conduct of the 
 executor present suoli evidence of improvidence 
 or recklessness in the management of the trust 
 estate, or of his own, as in the 0|jinion of pru- 
 dent and discreet men endanger its security, 
 lb. 
 
 24. Though bankruptcy might be a sufficient 
 reason for superseding an executor, poverty is 
 not ; inasmuch as the selection is controlled by 
 personal confidence in the character of the 
 trustee, ratlier than by his pecuniary responsi- 
 bility, and a person of sufficient capacity to 
 make a will is to be supposed capable of select- 
 ing an executor. lb. 
 
 25. Revocation of letters, effect of. 
 "Wliere a surrogate has once acquired jurisdic- 
 tion of a proceeding for a final accounting, he 
 does not lose it by a revocation, pending such 
 proceeding, of the letters of administration, but 
 may, notwithstanding, proceed to final decree. 
 Ct. App., 1874, Casoni v. Jerome, 58 N. Y. (13 
 Sick.) 315. 
 
 26. It seems that, in such case, it is proper 
 and may be necessary that a new administrator 
 should he appointed to represent the estate, be- 
 fore continuing the proceedings. lb. 
 
 27. Accounting by executors. An exec- 
 utor wlio has removed from the State, and re- 
 fused to give bail after being required to do so 
 by tlie surrogate, may, nevertheless, settle his 
 accounts before such surrogate ; and if he and 
 all parties entitled to notice appear voluntarily 
 for that purpose, the surrogate has jurisdiction, 
 and his decree for a final settlement is conclu- 
 sive unless appealed from. Sup. Ct., 1862, 
 Everts v. Everts, 62 Barb. 577. 
 
 28. A petition by a legatee, praying that an 
 executor be ordered to appear and render 
 an account, and that such other proceedings 
 be had as may be necessary to enforce her 
 claim, gives the surrogate jurisdiction of the 
 subject-matter, and after citing the executor to 
 appear and render a settlement and account, he 
 lias power to proceed and examine into the 
 account and to settle and adjust it, so far as to 
 determine how much shall be paid to the peti- 
 tioner. Ct. App., 1874, Peck V. Sherwood, 56 N. 
 Y. (11 Sick.) 615. 
 
 29. A surrogate is expressly authorized by 
 statute (4 Edm. Stats. 494, sec. 37), to take 
 proof of the claim of an executor against the 
 
 estate of his testator, and determine upon its 
 validity, on the return of a citation issued for 
 that purpose, directed to the proper parties, or 
 on tlie final accounting, and the executor cannot 
 retain any part of the assets in satisfaction of 
 his clahn without such proceedings. Sup. Ct., 
 1875, Smith v. Christopher, 3 Hun, 585. 
 
 80. Off set to legacy. Upon the final set- 
 tlement of the accounts of an executrix, the 
 amount of a joint and several promissory note 
 given to the testatrix by one of the legatees un- 
 der the will and her husband, and which, after 
 the death of her husband and of the testatrix, 
 she had promised to pay to the executrix, may 
 properly be charged against her share as legatee. 
 Sup. Ct., 1875, Wallace v, Storry, 4 Hun, 691. 
 
 31. Objections to Items. Although the 
 proper and better practice is to object specifi- 
 cally to such items ot an executor's account as it 
 is intended to call in question, yet tlie surrogate 
 has power, under a general objection to any 
 and all items, to inquire into and scrutinize the 
 account, and is not bound by the executor's 
 oatli thereto, or by his vouchers. Ct. App., 
 1874, Peck v. Sherwood, 56 N. Y. (11 Sick.) 615. 
 
 32. Evidence. It is error for the surrogate 
 to receive evidence of the declarations of the 
 testator against the executor, upon his final ac- 
 counting, in reference to business matters be- 
 tween tliem, tending to charge the latter with 
 an indebtedness to the estate. Sup. Ct., 1862, 
 Everts v. Everts, 62 Barb. 577. 
 
 83. The admission of such evidence is good 
 ground for reversing the decree, unless the party 
 offering it shows that it was harmless. lb. 
 
 34. Opening decree. The surrogate has no 
 power to open a decree, made upon a final ac- 
 counting of administrators, in a case where no 
 fraud in procuring it is alleged, and where the 
 errors suggested rest upon facts not positively 
 stated, and not apparent in the proceedings. 
 Sup. Ct., 1874, Yale v. Baker, 2 Hun. 468. 
 
 35. Effect of accounting. A final account- 
 ing by executors or trustees before the surro- 
 gate is no bar to an action by the cestui que trust 
 for the enforcement of a trust of which they be- 
 came trustees ex malejicio. Sup. Ct., 1875, Ful- 
 ton V. Whitney, 6 Hun, 16. ^ 
 
 36. Distribution. Whether or not the 
 courts of this State will decree distribution of 
 the assets, collected in it under auxiliary letters 
 granted by them to foreign executors, or will 
 remit the disposition thereof to the courts of 
 the testator's domicil, is not a question of juris- 
 diction, but of judicial discretion under the cir- 
 cumstances of the particular case ; and the fact 
 that the testator by his will appointed citizens 
 of this State executors, as well as citizens of 
 the State of his domicil, and charged the former 
 with the care and administration of the prop- 
 erty here, does not alter the rule. Ct. App., 
 1878, Despard v. Churchill, 63 N. Y. (8 Sick.) 
 192. 
 
 87. The courts of this State may not directly 
 aid in carrying out here a bequest which is in 
 violation of its statute law, and contrary to a 
 policy of which it is tenacious ; though they 
 cannot declare void such a legacy, where it is 
 valid by the law of the testator's domicil. 
 Hence, in case of a bequest of property here by 
 a citizen of another State, upon a trust void un- 
 der our statute against perpetuities, — Held, that 
 an order directing that the proceeds of such 
 property be remitted to the State of the testa- 
 tor's domicil for distribution, was proper. lb. 
 
 88. A widow to whom was devised all of her 
 husband's real property for life, and also all of 
 
698 
 
 SYRACUSE— TAXES. 
 
 his personal property, except a certain legacy 
 coming to liim from the estate of a relative, and 
 who, after the testator's death, remained in the 
 dweiling-liouse enjoying the use of his personal 
 property, and received $188 from the moneys 
 of the estate, — Held, not entitled to an allow- 
 ance for 40 days' sustenance, nor to $150 for 
 houseliold furniture. Ct. App., 1874, Peck v. 
 Sherwood, 66 N. Y. (11 Sick.) 615. 
 
 SYRACUSE. 
 Charter amended, ch, 234, Laws of 1871. 
 
 1. Assessment. The charter, sec. 4, title 8. 
 requires the commissioners appointed to assess 
 damages for property affected by a local im- 
 provement, to assess " such part upon the city 
 and such part locally, as they shall deem just," 
 and they have no discretion to exempt either 
 wholly from contribution thereto. Sup. Ct., 1874, 
 People ex rel. Sowlett v. Mayor, etc. of Siiracuse, 
 2 Hun, 433. 
 
 2. The charter requires that part of the ex- 
 pense which is to be borne locally, to be as 
 sessed upon the property benefited by the im- 
 provement, " in a just and equitable manner, as 
 near as may be in prtjportion to the benefits re- 
 ceived," and no exemption or deduction in favor 
 of property used for religious purposes is au- 
 thorized thereby. lb. 
 
 3. The general rule for determining benefits 
 is to ascertain the difference in the market value 
 of the property with and without the improve- 
 ment, lb. 
 
 4. Ordinances. Under the provisions of 
 the city charter, sec. 7, an alderman or police- 
 man can arrest without warrant any person 
 who may be found committing any violation of 
 a city ordinance, such as that against cruelty to 
 animals ; and he has a reasonable time in 
 which to make such arrest, a delay of half an 
 hour not being, in general, sufficient to deprive 
 him of tliat power. Sup. Ct., 1871, Batotph v. 
 Blust, 41 How. 481 ; 8. C, 5 Lans. 84. 
 
 6. But such officer cannot make such arrest 
 after the guilty person escapes from the city 
 limits, although but just over the line. lb. 
 
 TAXES. 
 
 I. The assessment ; fbopertt assessa- 
 ble ; CORRECTION ; equalization'. . 698 
 II. Collection ; liability op collect- 
 or ; befundins taxes 702 
 
 III. Sale op land; tax deed 704 
 
 I. The assessment ; property assessable ; 
 
 CORRECTION J EQUALIZATION. 
 
 1. What liable. Taxation of all property 
 within the State, both real and personal, is the 
 rule of the statute (1 R. S. 1st Ed. 387, sec. 1 ; 
 1 Edm. Stats 860), though certain specified 
 property is exempted therefrom. Ct. App., 
 1867, Foster v. Van Wych, 41 How. 493. 
 
 2. Bank shares, owned by inhabitants of 
 towns or wards, are priina facie liable to taxa- 
 tion, lb. . „ „ n 
 
 3. The decision of the U. S. Supreme Court, 
 that national bank shares are not liable to State 
 taxation, held binding. lb. „ . , c^ ^ 
 
 4. Stocks and bonds of the United btates, 
 
 owned by a tax-payer, not being taxable by 
 law, are not to be taken into account in deter- 
 mining the amount of his personal property lia- 
 ble to taxation. The amount of his debts is to 
 be deducted from the amount of taxable per- 
 sonal property, without any regard to that 
 which is not taxable. Sup. Ct. Sp. T., 1870, 
 People ex rel. Babbitt v. Board of Commissioners 
 of taxes, etc., 41 How. 469. 
 
 6. Shares of stock in corporations created un- 
 der the laws of any foreign State, or in a cor- 
 poration of this State which is taxed on its 
 stock, are not subject to be assessed and taxed 
 against the individual owners here. Sup. Ct., 
 1875, People ex rel. Trowbridge y. Commissioners 
 of taxes, etc., 4 Hun, 695; Aff'd by Ct. App. 
 
 6. Bank shares fall within the description 
 of property declared liable to taxation by stat- 
 ute, which the assessors are required to ascer- 
 tain by diligent inquiry, and it is their right 
 and their duty to examine the question whether 
 such shares are liable, or are exempt by any 
 law. State or national. Ct. App., 1867, Foster 
 V. Van Wyck, 41 How. 493. 
 
 7. If the assessors make a mistake in decid- 
 ing that question, they are not liable therefor 
 as wrongdoers ;• and if, in making up their roll, 
 tliey fail to follow the directions of the statute, 
 their action is not void, but Irregular and void- 
 able merely ; and in either case the only rem- 
 edy is by certiorari or writ of error. lb. 
 
 8. Corporation property. The property 
 of the Society of the New York Hospital which 
 was exempted from taxation by sec. 4, ch. 257, 
 Laws of 1822, was made taxable again by sec. 2, 
 ch. 875, Laws of 1869. The omission of the 
 prefix " The Society of " from the corporate 
 name in the latter act is not a material vari- 
 ance, but the property is sufficiently described 
 as that of " The New York Hospital." Ct. App., 
 1872, People ex rel. Davis v. Commissioners of 
 Taxes of New York, 47 N. Y. (2 Sick.) 501. 
 
 9. Debts. The term debt as used in the 
 statute imposing taxes on debts owing to non- 
 residents (ch. 871, Laws of 1851), means sums 
 of money due from residents to non-residents, 
 by express agreement or by judicial sentence, 
 for the purchase of real estate ; and a solvent 
 debtor is one who has sufficient property to pay 
 all his debts, or to render them collectible out 
 of it. Sup. Ct., People ex rel. Stephens v. Hal- 
 sey, 53 Barb. 547 ; S. C, 36 How. 487. 
 
 10. Railroad track. The track of a rail- 
 road company, laid in a public highway by con- 
 sent of the owners of adjoining fees, the com- 
 pany having no other title to or interest in the 
 soil, is " land " within the meaning of that 
 term in the assessment laws, and assessable as 
 such to the company owning it. Ct. App., 1871, 
 People ex rel. Dunkirk and Fredonia R. R. Co. v. 
 Cassity, 46 N. Y. (1 Sick.) 46. 
 
 11. Rents. Underch. 327,Law8 1846 (3Edm. 
 Stats. 348), town assessors are to assess money 
 rents reserved on leases in fee, to the persons 
 entitled to receive them, at a principal sum, the 
 interest of which at seven per cent, will produce 
 the amount of such annual rents ; and when 
 they have so assessed them in precise com- 
 pliance with the law, neither the town board of 
 supervisors, in the case of residents of tlieir 
 town, nor the county board of supervisors, in 
 the case of non-residents of the town where 
 such assessment has been made, can reduce it, 
 even though all other property in such town is 
 assessed at only one-third of its value. Sup. 
 Ct. Sp. T., 1873, People ex rel. Youmans v. Board 
 of Supervisors ^Delaware Co., 47 How. 24. 
 
TAXES. 
 
 699 
 
 12. Exemptions of Stale, county, school 
 and churp.h property from taxation, under the 
 general tax law (1 E. S. 388), do not relieve 
 them from assessments to pay for benefits re- 
 ceived from street improvements. The word 
 assessment is also used therein with reference to 
 ordinary taxes, and will be presumed to have 
 been so used in an act creating a school district 
 and declaring that its school houses, lots, &c., 
 " sliall be exempt from all taxes and assess- 
 ments." Niag. Co. Ct., 1872, Webber v. City of 
 Lockport, 43 How. 368. 
 
 13. The exemption of the property of religious 
 corporations from taxation, by 1 R. S. 906, sec. 
 5, does not extend to assessments for local im- 
 provements required for tlie public convenience 
 and directly tending to enhance the value of 
 property in the vicinity of wliich they are made, 
 but such property is liable to assessment there- 
 for. Sup. Ct., 1875, MaUer of Harlem Presb. 
 Church, 5 Hun, 442. 
 
 14. The terms " religious society,'' as used in 
 tlie act limiting exemptions of property in New 
 York city to sucli as is exclusively tiie property 
 of a religious society," etc. (ch. 282, Laws of 
 1852), are not limited in their application to such 
 a society organized as an incorporated cliurch, 
 but apply also to a society whose organization 
 and object is of the lienevolent, charitable or 
 missionary cliaracter, falling within tlie general 
 sense of the term "religious." Sup. Ct., 1875, 
 Hebrew Free School Asso. v. Mayor, etc. of New 
 York, 4 Hun, 446. 
 
 15. Where such a society owns a leasehold 
 interest in certain lots for a term of 11 years, 
 with tlie privilege of renewal, and an absolute 
 title to a building thereon, used for school pur- 
 poses, and is bound to pay all taxes and assess- 
 ments thereon, such property is the exclusive 
 property of the society, within the meaning of 
 the ^ct, and is entitled to the exemption from 
 taxation thereby given. lb. 
 
 16. The omission of the societj' to appear be- 
 fore the commissioner of taxes and object to 
 the assessment of its property, does not render 
 such assessment valid. lb. 
 
 17i The provision of sec. 2, ch. 176, Laws of 
 1851, exempting from taxation foreign capital 
 transmitted to agents here for the purposes of 
 investment or otherwise, was not repealed, either 
 expressly or by implication, by ch. 37, Laws of 
 1855, which subjects non-residents doing busi- 
 ness in this State to taxation on moneys em- 
 ployed in such business. Church, Gkoveb and- 
 FoLGEE, JJ., dissent. Ct. App., 1874, People ex 
 rel. Bank of Montreal v. Commissioners of Taxes, 
 etc. of New York, 69 N. Y. (14 Sick.) 40. 
 
 18. A foreign banking corporation which has 
 an agency permanently established in the city 
 of New York, to which it transmitted surplus 
 funds to be employed in temporary loans, sub- 
 ject at all times to its own control and drafts, is 
 not doing business in this State in such sense as 
 to be liable to taxation on the moneys so em- 
 ployed, lb. 
 
 19. The stock of foreign corporations owned 
 by corporations in this State, is not taxable here, 
 any more than that owned by individuals. Sup. 
 Ct., 1875, People ex rel. Pacific Mail Steamship 
 Co., 5 Hun, 200. 
 
 20. Corporations of this State are taxable upon 
 tlie actual value of their capital stock, and the 
 legal situs of such stock is here, and does not 
 depend upon the nature or locality of the invest- 
 ments in which it is made. lb. 
 
 21. A tax imposed upon the shares of a 
 national bank by virtue of ch. 97, sec. 10, Laws 
 
 of 1865, is invalid. Com. App., 1872, First Na- 
 tional Bank of Sandy Hill v. Fancher, 48 N. Y. 
 (3 Sick.) 524 ; Aff'g S. C, 62 Barb. 138. 
 
 22. Valuation. Under ch. 761, Laws 1866, 
 (6 Edm. Stats. 826), providing for the assessment 
 of the stock of State and national banks, the 
 shares are to be assessed at their true value, and 
 not at their par value only where it is of greater 
 value. Sup. Ct., 1874, People ex rel. Williams v. 
 Board of Assessors of the city of Albany, 2 Hun, 583. 
 
 23. State bonds, being evidence of a fixed 
 indebtedness, are taxable at their actual value. 
 Sup. Ct., 1875. People ex rel. Trowbridge v. Com- 
 missioners of Taxes, etc., 4 Hun, 395. 
 
 24. Corporations, property of. As against 
 corporations, the rule of taxation is correct 
 when based upon the amount of capital paid in, 
 or secured to be paid in, after deducting the 
 amount of such capital actually paid out for 
 real estate, assessing the remaining capital at 
 its actual value, and leaving the real estate to 
 be assessed the same as otlier real estate of indi- 
 viduals in the town where situated, at its actual 
 value, whether mqre or less than the price paid. 
 Sup, Ct., 1871, People ex rel. Am. Linen Thread 
 Co. V. Assessors of Mechanicsville, 6Lans. 106. 
 
 25. In assessing city railroad corporations, the 
 commissioners of taxes and assessments in the 
 city of New York should, under eh. 456, Laws 1857 
 (3 Edm. Stats. 373), ascertain the value of their 
 capital stock by inquiry into the condition of such 
 companies, embracing not only the amount of 
 property owned by them, but the amount of their 
 debts and liabilities, whether ascertained or con- 
 tingent ; which value, so ascertained, is to be 
 reduced by deducting the value of U. S. bonds 
 and other property held by them which is by 
 law exempt from taxation, and the value of real 
 estate and stock in otlier corporations owned by 
 them, which are taxable in another form, and 
 the balance remaining will be the assessed value 
 of the capital stock on which taxes are to be 
 imposed. Sup. Ct., 1873, People ex rel. Broadway 
 and Seventh Ave. li. R. Co. v. Commissioners of 
 Taxes, etc. ofN. Y. city, 46 How. 227. 
 
 26. The indebtedness having been taken into 
 consideration in ascertaining the value of the 
 stock, cannot again be deducted from the valua- 
 tion, lb. 
 
 27. Where the commissioners adopt the value 
 of the stock as fixed and returned by the com- 
 panies themselves, it is to be presumed that such 
 valuation was based upon a proper allowance 
 for diminution by debts. lb. 
 
 28. In the absence of sworn evidence as to the 
 value of the capital stock of a corporation, the 
 commissioners of taxes and assessments will be 
 justified in ascertaining such value from other 
 sources, as they do that of real estate. Sup. Ct., 
 1873, People ex rel. Pacific Mail Steamship Co. 
 V. Commissioners of taxes, etc., 46 How. 315. 
 
 29. In so doing they should consider the debts 
 of the corporation as reducing the actual value 
 of the stock, and form their estimate on that 
 basis ; and they should not value any of the 
 personal property of the corporation which is 
 permanently located out of this State as part of 
 the capital stock. lb. 
 
 30. The Pacific Mail Steamship Company, be- 
 ing incorporated under the laws of this State, 
 and having its principal place of business in the 
 city of New York, is to be deemed a resident of 
 New York, and this is the home port of its ships 
 registered in the port of New York, under the 
 U. S. registry act, for all the purposes of tax- 
 ation, and they are taxable here only, although 
 they may be permanently engaged in commerce 
 
700 
 
 TAXES. 
 
 and business on the Pacific ocean. S. C, again, 
 47 How. 164 ; 1 Hun, 143 ; AfE'd, S. C, 58 N. 
 Y. (13 Sick.) 164. 
 
 31. The question for the commissioners, 
 under tlie law of 1857, was not the locus or situs 
 of items of property owned by the corporation, 
 but of the company itself and of its capital stock, 
 and they are in New York both in law and in 
 fact. lb. 
 
 82. The situs of sea-going vessels for the pur- 
 poses of taxation, is in the home port as register- 
 ed under the laws of the United States, and con- 
 tinues there notwithstanding absence or employ- 
 ment elsewhere until a new situs is acquired. lb. 
 
 83. Where a steamship company of this State 
 has, by contract, a lien upon a vessel being 
 built for it in another State to the amount from 
 time to time paid thereon, and not the absolute 
 ownership, the moneys paid on the contract are 
 taxable here. lb. 
 
 84. Property omitted. Under the statute 
 for the correction of assessments (ch. 453, Laws 
 of 1865 ; 6 Edm. Stats. 487), providing for the in- 
 sertion upon the roll of property omitted the 
 preceding year, at the valuation of that year, 
 or if not then valued, at the valuation of the 
 year previous, the duty of the assessors is min- 
 isterial only, and they have no power to insert 
 the property at any other than the valuation of 
 such years, or to insert it at all if not valued in 
 one of those years. Ct. App., 1873, People exrel. 
 Oswald V. Goff, 62 N. Y. (7 Sick.) 434. 
 
 86. Where to be assessed. Personal prop- 
 erty is to assessed to the owner in the town 
 where he resides ; and one who is assessed for 
 such property in a town where he does not re- 
 side, can maintain an action against the assess- 
 ors to recover his damages therefor. Sup. Ct, 
 
 1871, Bailey v. Buell, 59 Barb. 168 ; AfE'd, 50 N. 
 Y. (5 Sick.) 662. 
 
 36. It makes no difference that such person is 
 temporarily in such town when the assessment 
 is being made, even though he may not be a 
 taxable inhabitant of any other town or place in 
 the State. lb. 
 
 37. For the purposes of the taxation of per- 
 sonal property, a man's residence, when once 
 established, will be deemed to continue until a 
 change is affirmatively shown, or, at least, until 
 there is satisfactory evidence of an abandon- 
 ment of that as a place of residence. Com. 
 App., 1873, In Matter of Nichols, . 54 N. Y. (9 
 Sick.) 62. 
 
 38. Under ch. 176, Laws of 1851, a man's per- 
 sonal property is taxable in the place where his 
 principal business for the year has been trans- 
 acted, lb. 
 
 39. Household furniture in charge of the 
 agents of a non-resident principal in a mansion 
 belonging to the latter, and money placed by 
 them in a bank for him, are properly assessed to 
 such agents in the place where they reside ; and 
 the assessment will not be invalidated by a sub- 
 sequent withdrawal of the money. Com. App., 
 
 1872, People ex rel. Westbrook v. Trustees of the 
 Village of Ogdensburgh, 48 N. Y. (3 Siak.) 390. 
 
 40. Moneys due from citizens of this State 
 upon contracts in the hands of such agents for 
 the purchase of real estate from their principal, 
 are in like manner assessable for purposes of 
 municipal taxation, where the agents reside in 
 an incorporated village ; tlie provisions of ch. 
 871, Laws of 1851, making them assessable in 
 the town or county where the debtor resides, 
 being applicable only to taxation in towns, 
 lb. 
 
 41. Where the charter of an incorporated vil- 
 
 lage required the trustees, in preparing an assess- 
 meht roll for the village, to follow that of the 
 town, except that they might add property 
 which had been omitted therefrom; and the 
 property above mentioned having been assess- 
 ed to the owner, was struck off upon his appli 
 cation, solely on the ground that he was a non- 
 resident, — Held, that such property was clearly 
 omitted within the meaning of the charter, and 
 was properly added by the trustees and assessed 
 to his agents. lb. 
 
 42. In the purview of the assessment laws a 
 railroad corporation is to be deemed a resident 
 of every town or ward in which it has real 
 estate ; and its lands are to be assessed against 
 it in such towns and wards as the land of resi- 
 dent individuals. Ct. App., 1871, People ex rel. 
 Dunkirk and Fredonia K E, Co. v. Cassity, 46 
 N. Y. (1 Sick.) 46. 
 
 43. A railroad company which occupies lands 
 in several counties for the carrying on of its cor- 
 porate business, must, for the purposes of tax- 
 ation at least, be regarded as a resident of each 
 town and county through which it passes ; and 
 its real estate in towns remote from the central 
 office, ~ is properly taxable in personam as the 
 lands of the residents of the town. Com. App., 
 1871, Buff, and St. L. R. R. Co. v. Supeniisors 
 of Erie Co., iSia.Y. {3 Sick.) 93. 
 
 44. The regulations for the assessment of 
 taxes on incorporated companies, found in 1 R. S. 
 414, furnish a sufficient basis for assessment and 
 taxation of the lands of a railroad company in 
 those towns and counties remote from its prin- 
 cipal place of business ; and the theory based 
 upon this constriiction is preferable to that 
 which would assess such companies as residents 
 of the towns through which their roads pass. 
 Per Hunt, C., in People ex rel. Buff, and St. L. 
 R. R. Co. V. Frederick; and Same v. Barker, 48 
 N. Y. (3 Sick.) 70. 
 
 46. To ■whom. Where the charter of a vil- 
 lage requires lands to be assessed in the name 
 of the owner or occupant, an assessment of 
 land therein to a non-resident as a resident does 
 not affect the validity of the assessment, notr 
 withstanding the charter requires the assessment 
 roll to be made in all respects, as far as practi- 
 cable and consistent with the provisions of this 
 act, in the manner prescribed by law in respect 
 to assessments made by town assessors ; the pro- 
 visions of the Revised Statutes being applicable 
 only to taxes to be raised for town, county and 
 State purposes. Sup. Ct., 1874, Glover v. Village 
 of Edgewater, 1 Hun, 486. 
 
 46. Under the law of 1865 (6 Edm. Stats. 487), 
 where specific personal property, as rents re- 
 served, is assessed in one year to a person not 
 the owner, it may properly be reassessed the 
 following year to the true owner, as property 
 omitted from the roll, Ct. App., 1871, Overing x- , 
 Foote, 43 N. Y. (4 Hand,) 290. C^r^yMX^ i>{) lA 
 
 47. Such reassessment will be valid, though 
 made by the assessors after the time fixed by 
 law for the completion of their roll for public 
 inspec tion . lb. 
 
 48. 'When to be assessed. Where, at the 
 time an assessment roll was opened for inspec- 
 tion, there was left a blank opposite the name 
 of one person, to be filled with a description of 
 his property as soon as ascertained; and the 
 owner's agent, calling and being informed of that 
 fact, furnished a description of the property, 
 which was inserted about the middle of July, — 
 Held, that a tax levied upon such assessment was 
 valid. lb. 
 
 49. The assessors hare no power, on the day 
 
TAXES. 
 
 701 
 
 appointed for the final review and correction of 
 tlie roll, to add the name of a person, not before 
 appearing thereon, as liable to assessment and 
 taxation for personal property ; and if they do 
 BO they are wrong-doers and personally liable to 
 such person for the damages. Ct. App., 1872, 
 West/all V. Preston, 49 N. T. (4 Sick.) 849 ; Kev'g 
 S. C, 3 Lans. 151. 
 
 60. Verification of roll. A majority of t)ie 
 assessors can act without the third in both mak- 
 ing and verifying the roll, and a verification by 
 two is sufficient. Sup. Ct., 1874, Colman v. Shat- 
 tucJc, 2 Hun, 497 ; AfE'd by Ct. App. 
 
 51. A verification to the effect that " we have 
 set down in the foregoing roll," although preced- 
 ing some of the descriptions of lands assessed 
 in the roll, is sufficient to cover those back Of it. 
 lb. 
 
 62. An affidavit of the assessors which sub- 
 stantially complies with the statute, is sufficient, 
 and a literal compUance is unnecessary. Com. 
 App., 1871, Bufah #• St. L. R. R. Co. v. Super- 
 visors o/" Erie county, 48 N. Y. (3 Sick.) 93. 
 
 63. Defects in the affidavit of assessors an- 
 nexed to an assessment roll will not render it 
 illegal, unless they are in matters of substance 
 and not of form merely. The omission of words 
 not essential to the substance of the affidavit 
 prescribed by statute is not a fatal defect. Sup. 
 Ct., 1871, National Bank of Chemung v. City of 
 Elmira, 6 Lans. 116. 
 
 54. Neither is it a fatal defect that tiie affida- 
 vit has no venue. lb. 
 
 56. But the affidavit must be sworn to before 
 the particular officer prescribed by statute, that 
 is, a justice of the peace. A deputy county 
 clerk has no authority to administer the oath. 
 S. C, 53 N. Y. (8 Sick.) 49. 
 
 56. For the purposes of verification, the assess- 
 ment roll is not completed until after the third 
 Tuesday in August, the time fixed for final re- 
 view and correction, and an affidavit made before 
 that time is a nullity ; and, the defect appearing 
 upon its face by the date of the jurat, it confers 
 no jurisdiction upon the board of supervisors to 
 impose a tax upon the persons or property named 
 therein. Ct. App., 1872, Westfall v. Preston, and 
 Same v. Gere, 49 N. Y. (4 Sick.) 349 ; Bev'g S. C, 
 8 Lans. 151. 
 
 57. The omission of the assessors to verify an 
 assessment roll, made since the act of 1851, will 
 render all subsequent proceedings thereon a 
 nuUity. Ct. App., 1873, Johnson v. Elwood, 53 N. 
 
 . i. (8 Sick.) 481. 
 
 58. Return. The failure of the two assessors 
 who made and verified an assessment roll to cer- 
 tify to the supervisors, with their roll, Jjie name 
 of the non-acting assessor, with the cause of his 
 omission to act, does not affect the validity of 
 ;he assessment ; the only object of such certifi- 
 cate being to enable the district attorney, in 
 proper cases to prosecute the delinquent ; and 
 the statute not requiring it to be on, or in, or at- 
 tached to, the assessors' roll Sup. Ct., 1874, 
 Colman v. Shattuck, 2 Hun, 497 ; Aff'd by Ct. 
 App. 
 
 59. AasesBment vrhen conclusive. As- 
 sessors, having jurisdiction of the person and 
 subject-matter, act judicially in making an 
 assessment ; and, until their determination is 
 reversed by proper proceedings, no action can 
 be maintained to recover back from a municipal 
 corporation taxes illegally assessed and collected 
 for its benefit. Ct. App., 1870, Bank of the Com- 
 monwealth V. Mayor, etc. of New York, 43 N. Y. (4 
 Hand,) 184. 
 
 60. Assessors, being subordinate officers, must 
 
 act within the authoiity given them. In a case 
 where they have no power to act at all, either as 
 to person or property, or where their right to act 
 depends upon the existence of some fact, which 
 they erroneously determine to exist, their acts 
 are void; and in performing a ministerial duty 
 their acts are void, if not in accordance with law. 
 Ct. App., 1873, National Bank of Chemung v. City 
 of Elmira, 58 N. Y. (8 Sick.) 49; Kev'g S. C, 6 
 Lans. 116. 
 
 61. Assessors have no power to determine that 
 property is taxable which the law exempts, and 
 if they do so, an assessment founded thereon is 
 void, and may be attacked collaterally. lb. 
 
 62. The assessment of the capital stock of a 
 bank and a tax thereon against the bank, being 
 expressly prohibited by ch. 761, Laws 1866, are 
 illegal and void, and the bank can maintain an 
 action to recover back money collected from it 
 thereon. lb. 
 
 63. Correction of roll. Under the statute 
 of this State, assessors are required to exercise 
 their judgment as to the value of property as- 
 sessed, notwithstanding any proof which may 
 he produced before them, and only an extraor- 
 dinary case will justify a review of their judg- 
 ment on certiorari. Com. App., 1872, People ex 
 rel. Westbrook V. Trustees of the Village of Ogdens- 
 burgh, 48 N. Y. (8 Sick.) 890. 
 
 64. When the evidence presented upon an ap- 
 plication for a reduction of assessment is uncon- 
 tradicted and the facts clearly beyond dispute.the 
 assessors are bound to act in accordance witli, 
 and must be governed by the evidence presented 
 to them ; and when there is a positive affidavit 
 of the applicant, and direct proof, showing the 
 property to be worth less than the assessment, 
 there should he considerable hesitation in disre- 
 garding such evidence. Sup. Ct., 1871, People 
 ex rel. Am. Linen Thread Co. v. Assessors of Me- 
 chanicsville, 6 Lans. 105. 
 
 65. Information received by the assessors from 
 other parties may perhaps be considered by them 
 upon such an application, but whether they can 
 properly consider ex parte affidavits, where the 
 party claiming to be aggrieved has no knowledge 
 or notice that they are before the assessors or 
 will be used in evidence, doubted. lb. 
 
 66. Upon certiorari to review the proceedings 
 of the assessors, the court must act upon the 
 affidavits and evidence which appear by the re- 
 turn to have been considered by the assessors, 
 and if that does not show the ex parte affidavits 
 to have been actually used before them, they 
 cannot be considered on such review. lb. 
 
 67. On an application to assessors to correct 
 their assessment of the property of a corpora- 
 tion, if the uncontradicted evidence before them 
 reduces the valuation of the real estate, they 
 should correct the assessment by changing the 
 valuation to the highest amount fixed by such 
 evidence. Sup. Ct., 1871, People ex rel. American 
 Linen Thread Co. v. Rowland, 61 Barb. 273. 
 
 68. After deducting that sum from the amount 
 of capital paid in, the assessors may properly as- 
 sess the remaining capital as personal estate, at its 
 actual value as shown by the evidence before 
 them. lb. 
 
 69. Upon an application to correct an assess- 
 ment, the assessors act in a judicial capacity, 
 and must be governed by the evidence presented 
 to them, and if there is no other evidence pro- 
 duced except on the part of the applicant, they 
 must be considered controlling and conclusive, 
 lb. 
 
 70. The power conferred upon boards of super- 
 visors by sec. 1, oh. 357, Laws of 1858, in respect 
 
702 
 
 TAXES. 
 
 to correcting assessments against non-residents 
 upon rents reserved, is no greater tlian that pos- 
 sessed by assessors in the case of residents. 
 They cannot reduce the amount assessed in strict 
 conformity to law, even though the assessors 
 have, in violation of their duty, assessed other 
 taxable property at less tlian its just and full 
 value. Allen, J., dissents. Ct. App., 1875, 
 People ex rel. Youmans V. Board of Sups, of Dela- 
 ware Co., 60 N. Y. (15 Sick.) 381 ; Bev'g S. C, 2 
 Hun, 102. 
 
 71. Where there is no evidence impairing ma- 
 terially the force of that given on the part of 
 the assessed as to matters relied on to exempt 
 him or his property, known or proved to the 
 assessors, they are concluded thereby and must 
 assume the matters sworn to as true, and correct 
 the roll accordingly ; but if facts are known to 
 or proved before the assessors, rebutting or es- 
 sentially qualifying such evidence, they are not 
 concluded thereby unless he satisfactorily rebuts 
 or explains them ; and they are not in any case 
 concluded by the opinions of witnesses as to the 
 value of property, unless that is the only evi- 
 dence or information they have on the subject. 
 Sup. Ct., 1875, People ex rel. Oswego Canal Co. v. 
 City of Oswego, 5 Hun, 117. 
 
 72. Xiqualizatdon. The duties of the Board 
 of Supervisors in relation to the equalization of 
 taxes, required by sees. 31 to 84 inclusive, 1 R.. 
 S. 396, must all be discharged before those speci- 
 fied in the succeeding sections are to be done, 
 and the roll must be complete in all respects be- 
 fore the warrant is annexed and delivered. 
 Accordingly, where the Board determined to 
 add 50 per cent, to the valuation of real estate in 
 a town, and also determined the amount of tax 
 to be assessed in such town, delivering the roll 
 uncompleted, but with the warrant annexed, to 
 the supervisor of the town who completed it by 
 adding one-half the valuation of the assessors to 
 each estate, computing the tax upon the valua- 
 tion so ascertained, and carrying out the re- 
 njective amounts in the appropriate columns, — 
 Held, that the warrant was illegal and the super- 
 visor was liable in trespass for a levy made 
 thereunder by his direction. Com. App., 1873, 
 Bellinger v. Gray, 51 N. Y. (6 Sick.) 610. 
 
 See ch. 809, JLaws of 1673. 
 
 73. Personal liability of assessors. Al- 
 though assessors act judicially, yet if they 
 exceed their jurisdiction and assess a non-resi- 
 ent of their town for personal property, they are 
 individually liable for the damages arising 
 therefrom, as by a sale of his property for col- 
 lection of a tax levied pursuant to the assess- 
 ment Sup. Ct., 1870, Wade v. Matheson, 4 
 Lans. 158 ; Aff'd, S. C, 47 N. Y. (2 Sick.) 658. 
 
 74. One who removes his family from a town 
 where he has been doing business, and estab- 
 lishes a permanent residence elsewhere, al- 
 though he continues his business in the former 
 place, returning occasionally to attend to it and 
 stopping at a hotel, and even registering his 
 name as a resident, though without the knowl- 
 edge of the assessors, cannot lawfully be assessed 
 there for personal property, but may maintain 
 an action against the assessors if they so assess 
 him. lb. 
 
 75. To constitute a residence for the purposes 
 of taxation, there must be a settled fixed abode, 
 an intention to remain permanently, at least for 
 a time, for business or other purposes. lb. 
 
 76. Assessors act judicially in determining as 
 to the place of residence 'of a person owning 
 
 real estate in their town which is subject to tax- 
 ation, and where the largest portion of his farm 
 is in their town, with the principal dwelling 
 house and other farm buildings, they have juris- 
 diction of the subject-matter, and are not liable 
 to an action for an erroneous decision on the 
 subject. Sup. Ct., 1872, Dorn t. Backer, 61 
 Barb. 597. 
 
 77. Validity of tax. A school district tax, 
 assessed by a sole trustee, for the expense of 
 repairs and additions to the school house made 
 pursuant to a vote of the district meeting, is 
 valid notwithstanding the resolution authorizing 
 the expenditure failed to specify the amount to 
 be raised therefor by tax. Sup. Ct., 1871, Ham- 
 lin V. Dingman, 6 Lans. 61 ; Rev'g S. C, 41 How. 
 132. 
 
 II. Collection; liabilitt of collectok; 
 
 BEFnUDIKQ OF TAXES. 
 
 78. The roll. The affidavit of the assessors 
 is made part of the assessment roll delivered to 
 the collectors with the warrant ; and where it 
 discloses a want of jurisdiction in the board of 
 supervisors to act, the collector will be person- 
 ally liable for an attempt to collect the taxes 
 therein imposed. Ct. App., 1872, Westfall v. Pres- 
 ton, and Same v. Gere, 49 N. Y. (4 Sick.) 349. 
 
 79. An assessment against an individual for 
 " circulation notes and profits)" is plainly illegal 
 and renders the warrant for the collection of the 
 tax void. Want of verification of the roll as 
 required by statute, is also fatal to its validity. 
 Com. App., 1873, Bellinger v. Gray, 61 N. Y. (6 
 Sick.) 610. 
 
 80. A high'way tax against lands of a non- 
 resident need not be placed in the roll forward 
 of, or be covered by the supervisors' warrant, as 
 they cannot command the collection thereof. 
 Sup. Ct., 1874, Colman v. Shattuck, 2 Hun, 497 ; 
 AfE'd by Ct. App. 
 
 81. Neither need such tax be verified by the 
 assessors, as they neither assess such taxes, nor 
 put them on the rolls. lb. 
 
 82. Where the assessment roll shows that all 
 the lands therein designated are within the Hol- 
 land land company's purchase, a description of 
 the land assessed for such tax by the numbers 
 of lot, town and range is sufficient. lb. 
 
 83. The -warTant. If the warrant is imper- 
 fectly sealed, and left incomplete when the super- 
 visors adjourn, that also renders it invalid, and 
 the officer will not be protected in levying under 
 it. Com. App., 1873, Bellinger v. Gray, 61 N. Y. 
 (6 Sick.) 610. 
 
 84. The provision of the act of 1866 " to facil- 
 itate the construction of the New York and Mid- 
 land railroad," which declares that the moneys 
 raised in any town for the purposes of the act, 
 shall, when collected, be paid over to the rail- 
 road commissioners, operates as a qualification 
 of the general statute prescribing the form of 
 the collector's warrant, so far as to authorize 
 the board of supervisors to direct the collector 
 to pay over the moneys so raised directly to 
 such commissioners. Ct. App., 1873, People ex 
 rel. Mai-tin v. Brown, 56 N. Y. (10 Sick.) 180. 
 
 86. Duty and liability of collector. It 
 being unnecessary to attach either the affidavit 
 of the assessors or a copy of it to the roll, where 
 a copy instead of the original is delivered to the 
 collector, the absence of both does not disclose 
 a want of jurisdiction ; and the warrant will, 
 notwithstanding, be sufficient to protect the col- 
 lector. Ct. App., 1874, Bradley v. Ward, 58 N. 
 Y. (13 Sick.) 401. 
 
TAXES. 
 
 703 
 
 86. The proTision of the statute requiring the 
 warrant to be delivered to the collector by the 
 16th of December is directory merely ; and a 
 delay in delivering for a month and a half after 
 that time, will not invalidate the warrant so as 
 to excuse the collector for not enforcing collec- 
 tion, lb. 
 
 87. While, if the delay were such as to render 
 it impossible, after complying with the other re- 
 quirements of the statute, to seize and sell prop- 
 erty within the time prescribed for paying over 
 the moneys, that fact would relieve the collector 
 from the obligation to institute compulsory pro- 
 ceedings, an extension of such time by statute 
 so as to make the performance of the duty pos- 
 sible would render it obligatory upon him. lb. 
 
 88. Although no return day is specified in the 
 original warrant, yet, if the statute extending 
 the time also prescribes a return day, that will 
 obviate the objection and render the warrant 
 valid. lb. 
 
 89. A statute passed with reference to a par- 
 ticular county, declaring that the tax warrants 
 therein shall " continue in force " until a time 
 specified, will be held to apply to and revive 
 warrants not in force at the time of the passage 
 of the act, because of a failure to renew under 
 the general act. lb. 
 
 90. The mere circumstance of signing the war- 
 rant first and filling it up afterward, the latter 
 act being done under the direction of the super- 
 visors, does not render the warrant invalid, or 
 excuse the non-fulfilment of his duty by the 
 collector. lb. 
 
 91. It seems that if the warrant is void upon its 
 face, that will be a good defense, when the col- 
 lector has paid over the moneys collected, to an 
 action upon his bond for not enforcing collec- 
 tion ; and he is not estopped from setting up the 
 same as a defense. lb. 
 
 92. After the return of a tax upon real es- 
 tate as unpaid, and no goods found, the same 
 proceedings must be had, since ch. 427, Laws of 
 1855, for its collection as against the lands of a 
 non-resident ; and if the supervisors of the county, 
 instead, add such returned tax to the resident 
 list of next year, so as to charge personally one 
 who has succeeded to the possession or owner- 
 ship of the land, their action will be illegal and 
 the tax so assessed void. Ct. App., 1871, New- 
 man V. Supervisors of Livingston Co., 45 N. Y. 676. 
 
 93. Where, in a proceeding under ch. 318, 
 Laws of 1842, for the collection of a tax on per- 
 sonal property, the assessor gave notice of a mo- 
 tion for an attachment, or for such other or 
 further relief as the court by order might think 
 proper to grant, and the contestant appeared at 
 the hearing and litigated the case upon its merits, 
 — Held, that it came up as on an order to show 
 cause why he should not pay the tax ; that he 
 could not afterward object to the form by which 
 he was called on to appear, and that an order 
 made on such hearing adjudging him guilty of 
 misconduct in not paying the tax, imposing a 
 fine and directing his imprisonment until paid, 
 was proper and regular. Lott, Ch. C, dissents. 
 Com. App., 1873, In matter of Nichols, 64 N. T. (9 
 Sick.) 62. 
 
 94. Since the passage of ch. 456, Laws of 1847, 
 the court may, in such a proceeding, lawfully 
 add to the fine an additional five per cent, over 
 the assessed tax, and the expenses, under the act 
 of 1842. lb. 
 
 96. What liable to sale. The rolling stock 
 of a railroad company is personal property, and 
 as such liable to seizure and sale for the pay- 
 ment of a, tax assessed against the company. 
 
 Ct. App. 1875, Randall Y.JElwell, 52 N. Y. (7 
 Sick.) 621. 
 
 96. Refimding. Before the supervisors can 
 he required by order of the County Court to re- , 
 fund the amount of a tax illegally or improperly 
 assessed or levied, the assessment must have^ 
 been adjudged illegal or improper by a compe- 
 tent tribunal, and the power to make such adju- 
 dication rests, if anywhere, with the board of 
 supervisors. It is nowhere vested in tlie County 
 Court. Sup. Ct., 1875, In matter of Hudson Citi/ 
 Savings Inst., 6 Hun, 612. 
 
 97. A municipal corporation is bound to re- 
 fund the amount of taxes received by it upon an 
 assessment wliich is subsequently declared in- 
 valid, notwithstanding such taxes were assessed 
 and collected by officers who were neither ap- 
 pointed nor controlled by it. Ct. App., 1870, 
 Bank of Commonwealth v. Mayor, etcofNew York, 
 43 N. Y. (4 Hand,) 184. 
 
 98. The liability of the corporation is not af- 
 fected by the fact that it has applied the moneys 
 so received as required by law. lb. 
 
 99. The voluntary payment of taxes while the 
 assessment remains unreversed, will not afCect 
 the right of the party so paying to recover them 
 back when their illegality is determined by a 
 reversal of the assessment. lb. 
 
 100. Recovery back. A city is liable for 
 tlie whole amount of a tax illegally assessed and 
 collected, and in the hands of its treasurer, 
 although imposed for three separate purposes, 
 viz., for city, county and State taxes. Com. 
 App., 1872, Union National Bank v. Mayor, etc. 
 of New York, 61 N. Y. (6 Sick.) 638. 
 
 101. Payment of a tax after judgment is ren- 
 dered sustaining it, pursuant to a notice from the 
 receiver of taxes that, unless paid, a penalty will 
 be imposed by way of interest, and a warrant 
 issued, is not a voluntary payment, which will 
 prevent a recovery back on reversal of the judg- 
 ment, lb. 
 
 102. An action will lie against a county to re- 
 cover back money collected upon an illegal tax, 
 paid into its treasury and used by it for county 
 purposes ; and, when the assessment was an 
 illegal act of its own ofiicers,- no demand is neces- 
 sary before action ; nor is it necessary that such 
 a claim should first be presented to and audited 
 by the county board. Ct. App., 1871, Newman 
 V. Board of Supermsors of Livingston Co., 45 
 N. Y. (6 Hand,) 676. 
 
 103. The act of the supervisors in signing a 
 tax warrant is the corporate act of the county, 
 and not the individual act of the supervisors of 
 the several towns. lb. 
 
 104. It is no defense to a claim under ch. 938, 
 Laws of 1867, for the recovery of taxes illegally 
 assessed and paid upon the capital stock of a 
 bank invested in U. 8. bonds, that the relator 
 failed to appear before the assessors and object 
 to the assessment, or that it paid the tax volun- 
 tarily, where such assessment and payment were 
 both made before the decision of the U. S. Su- 
 preme Court was announced, holding that the 
 portion of the capital stock of a bank so in- 
 vested was exempt from taxation. Com. App., 
 1873, People ex rel. Oneida Valley National Bank 
 V. Supervisors of Madison County, 61 N. Y. (6 
 Sick.) 442. 
 
 105. Assessors, in all cases where they have 
 jurisdiction, act judicially in making assess- 
 ments. In exercising their jurisdiction in respect 
 to lands in their town, they determine, among 
 other things, whether it is to be assessed as 
 resident or non-resident land, and their decision, 
 unless in cases presenting such a flagrant disre- 
 
704 
 
 TAXING COSTS— TELEGRAPH COMPANIES. 
 
 gard of facts as to amount to more than a mere 
 error of judgment, is conclusive In a collateral 
 action. So long, therefore, as their decision re- 
 mains unreversed, no action vfill lie to recover 
 back a tax collected upon their assessment. 
 Com. App., 1871, Buffalo and St. L. R. R. Co. 
 V. Superoisors of Erie Co., 48 N. Y. (3 Sick.) 93. 
 
 IIL Sale op land ; tax deed. 
 
 106. Return of unpaid taxes. Where a 
 village charter requires the treasurer within 
 a time specified to make a return, under oath, 
 of all unpaid taxes and assessments on lands, 
 and annually between certain days "to cause 
 such lands to be advertised for sale at public 
 auction," his neglect to make the required re- 
 turn does not deprive him of the power of sell- 
 ing the lands. Sup. Ct., 1874, Glover v. Village of 
 Edgewater, 1 Hun, 486. 
 
 107. Notice to redeem. The statute of 
 1823, relating to the publication of notice to 
 redeem from tax sales is mandatory, and re- 
 quires such notice to be published for six weeks 
 successively before tlie last six months of the 
 time for redemption begins. Ct App., 1872, 
 fVestbrook v. Willey, 47 N. Y. (2 Sick. ) 457. 
 
 108. A notice published by the comptroller, 
 which states that "the payment into the treas- 
 ury of this State of the sum set opposite to each 
 lot, etc., will be required to redeem the same 
 respectively, at the expiration of the time for 
 the redemption thereof, which will be on the 
 28th day of Nov., 1861," but does not state the 
 consequences of not paying, that " unless such 
 lands are redeemed by a certain day they will 
 be conveyed to the purchaser," as required by 
 sec. 61, ch. 425, Laws 1856 (8Edm. Stats. 367), 
 is materially defective, and renders the title of 
 purchasers under the tax sale referred to by 
 such notice invalid. Sup. Ct. Cir., 1874, Becker 
 V. Holdridge, 47 How. 429. 
 
 109. Tax deed. A tax deed which recites 
 that the lands conveyed were assessed and re- 
 turned as non-resident, when in fact they were 
 assessed to a former owner by his proper name, 
 is invalid. Ct. App., 1874, Bitter v. Worth, 58 
 N. Y. (13 Sick.) 627. 
 
 110. The act respecting the return of the col- 
 lector's warrant for the county of Kings (ch. 206, 
 Laws of 1838), does not change the general law 
 upon that point as respects that county. lb. 
 
 111. The presumption of regularity of all the 
 tax proceedings created by statute in favor of a 
 comptroller's deed, is not rebutted by proof that 
 after the lapse of 17 years papers required by 
 law to be filed in the town clerk's ofiice cannot 
 be found there, especially where the search was 
 made by persons interested adversely to the tax 
 title.- Sup. Ct., 1874, Colman v. jSAaWuei, 2 Hun, 
 497 ; Aff'd by Ct. App. 
 
 112. An ovencharge of three or five cents in 
 the return of taxes to the comptroller will not 
 affect the validity of the title acquired under a 
 sale therefor. lb. 
 
 TAXING COSTS. 
 See CoBis. 
 
 TELEGRAPH COMPANIES. 
 
 1. Duty of connecting lines. Under the 
 statute (8 Edm. Stats, 722, sec. XI), requiring 
 
 telegraph companies doing busines.'^ in tliis State 
 to transmit messages to or from any individual, 
 except for companies owning lines parallel or 
 competing with the one over which the message 
 is required to be sent, — Held, tliat a company 
 possessing a line between. New York and Nova 
 Scotia, and there connecting with European 
 companies, was bound to receive at the former 
 place and transmit for another company, .not 
 owning any line between those points, messages 
 brought by the latter to New York over otlier 
 lines running parallel and in competition with 
 lines of the former. N. Y. C. P., 1873, Atlantic 
 Sr Pae. Tel. Co. v. Western Un. Tel. Co., 4 Daly, 
 627. 
 
 2; Printed conditions. Clauses printed on 
 the blank on which a message is written, and 
 above such message, as foljows : " All messages 
 taken by this company subject to the following 
 terms : The company will not be liable for 
 damages in any case where the claim is not 
 presented in writing within 60 days after 
 sending the message," signed by the oflSeers of 
 the company and followed by, " Send the follow- 
 ing message subject to the above terms, which 
 are agreed to," make such terms a part of the 
 contract between the sender and the companj'-, 
 which he must comply with before he can main- 
 tain an action against the company for an 
 erroneous transmission of his message. N. Y. 
 Supr. Ct., 1872, Young v. Western Un. Tel. Co., 
 34 N. Y. Supr. (2 J. & Sp.) 390. 
 
 3. The clause requiring the claim to be pre- 
 sented, in writing must be construed to mean 
 that it shall be put into writing and delivered 
 to and left with the proper officer of the com- 
 pany, lb. 
 
 4. Regulations, validity of. A regulation 
 requiring messages presented by another com- 
 pany for transmission to be accompanied by a 
 power of attorney from the person sending the 
 same, — Held, invalid, because it would render 
 nugatory the statutory provisions respecting 
 such messages (3Edm. Stats. 722, sec. 11). N. 
 Y. C. P., 1873, Atlantic ^ Pac. Tel. Co. v. West- 
 ern Un. Tel, Co., 4 Daly, 527. 
 
 5. A regulation requiring messages from other 
 companies to have appended tife date of reception 
 by them, and, the name of the company present- 
 ing tlie same, is reasonable and valid. lb. 
 
 6. laability of company. A telegraph 
 company is liable in damages for the negligence 
 of its operator in changing a message before de- 
 livery, from a request that $500 be sent to 
 a party, to one that $5,000 be so sent ; but, If 
 the latter sum be sent in compliance with the 
 request, and be wrongfully converted by the 
 person to whom it is sent, that does not make 
 the company liable for the whole amount, such 
 conversion not being the natural or proximate 
 consequence of the negligent act. Ct. App., 
 1875, Lowerg v. Western U. Tel. Co., 60 N. Y. 
 (15 Sick.) 198. 
 
 7. Where a message, in the name of the cash- 
 ier of a bank, presented by a party known by 
 the operator not to be such cashier, representing 
 such party as entitled to credit for a large 
 amount, and directed to a banking house at 
 another station, was sent from a station inter- 
 mediate between that and the station where it 
 purported to be dated, — Held, that this was 
 gross negligence, and that it was an act so far 
 within the course of employment of the operator 
 as would render 'the telegraph company liable 
 for the resulting damages. Ct. App., 1871, 
 Elwood V. Western Union Telegraph Co., 45 N. 
 Y. (6 Hand,) 549. 
 
TENANTS IN COMMON— TENANTS FOR LIFE. 
 
 705 
 
 8. Telegraph companies whose lines connect, 
 each receiving and forwarding, in the ordinary 
 course of business, messages transmitted by the 
 other, as required by statute, are each, in the 
 absence of any special agreement or arrange- 
 ment either with the sender or between them- 
 selves, liable only for acts and defaults of their 
 own agents. Ct. App., 1871, Baldwin v. U. S. 
 Telegraph Co., 45 N. Y. (6 Hand,) 744 ; Eev'g S. 
 C, 1 Lans. 125. 
 
 9. Where a message is received by one sucli 
 company from the other for further transmission, 
 without notice of any special responsibility con- 
 nected witii it outside of that which the terms 
 of the message itself import, such company can- 
 not be held liable for a loss connected with the 
 undisclosed purpose of the message, although 
 such purpose may liave been known to and the 
 loss in question contemplated by the agents of 
 the company first receiving the message. lb. 
 
 TENANTS IN COMMON. 
 
 1. Who are. Under an agreement between 
 patrons of a cheese factory and the owner, tliat 
 each should furnish milk in sucii a quantity and 
 for such time as he pleased, and might have as 
 much of the cheese manufactured as his milk 
 made, by paying for making, or could have his 
 cheese sold with the rest of the clieese made 
 there, and sliare in the proceeds in proportion 
 to the quantity of milk furnished, such patrons 
 are not partners, but are tenants in common of 
 the cheese ; and no one of them is liable for any- 
 thing done by any of the otliers, unless lie con- 
 sents to a sale of his part of the cheese with that 
 of the others. Sup. Ct., 1872, Hamley v. Keeler, 
 62 Barb. 231 ; Aff'd, S. C, 53 N. Y. (8 Sick.) 114. 
 
 2. If wood belonging to different owners is 
 floated away by a freshet and so intermingled 
 as to become indistinguishable, tlie owners 
 become tenants in common thereof, and either 
 may gather and take possession of the whole, 
 holding it subject to the rights of the others for 
 their shares, and is entitled to compensation 
 from them for his labor. Sup. Ct., 1872, Moore 
 T. Erie Railway Co., 7 Lans. 39. 
 
 3. Under a contract for working a farm upon 
 shares, whereby the owner agrees to account 
 and pay to the laborer for his performance, one- 
 half of all grain, etc., produced from the farm, 
 the parties are not tenants in common of the 
 crops, but the title is wholly in the owner of the 
 land. Com. App., 1872, Tanner y. Hills, 48 N. 
 Y. (3 Sick.) 662. 
 
 4. Rights and liabilities. One tenant in 
 common lias a right to take peaceable possession 
 of the premises owned in common ; and such 
 possession, though gained by stealth, will not 
 be illegal. Ct. App., 1870, Wood v. Phillips, 43 
 N. Y. (4 Hand,) 152. 
 
 5. A tenant in common, ousted by his co-ten- 
 ant, may regain possession, if done peaceably, 
 and occupy jointly with the latter ; but if, after 
 regaining possession, he attempts forcibly to 
 eject the other, he will be liable in an action for 
 assault and battery. lb. 
 
 6. Persons owning undivided shares in a pa- 
 tent are tenants in common thereof, and each, 
 as an incident to such ownership, has the right 
 to use the patent or to manufacture under it 
 for his own individual benefit, and he cannot be 
 compelled to account to his co-tenant for profits 
 arising from such use. Sup. Ct., 1875, De Witt 
 V. Elmira Nobles Manuf. Co., 5 Huii, 801. 
 
 45 
 
 7. One tenant in common of personal property 
 cannot maintain an action for its possession 
 against his co-tenant. If the latter sells the prop- 
 erty, he may, at his option have his action for 
 the conversion, or hold his title with the pur- 
 chaser, but he cannot compel a delivery to liim 
 of the whole property. Ct. App., 1871, Davis v. 
 Lottich, 46 N. Y. (1 Sick.) 893. 
 
 8. Liability. One tenant in common of 
 lands, not being responsible for a trespass com- 
 mitted at the direction of his co-tenant, by their 
 lessee, is not liable for the services of an attorney 
 employed, without his sanction, by such co-- 
 tenant to defend a suit brouglit for the trespass. 
 Com. App., 1878, Bowman v. Travis, 54 N. Y. 
 (9 Sick.) 640. 
 
 9. A tenant in common, occupying the com- 
 mon property without any agreement to pay 
 rent, is not liable for rent to his co-tenants, even 
 tliough a partner occupied with him. Sup. Ct., 
 1866, Scott V. Guernsey, 60 Barb. 163. 
 
 10. If he agrees with any of his co-tenants to 
 pay rent, he is liable only to those with whom 
 he so agrees, and he cannot set off the costs of 
 improvements and additions, not strictly repairs, 
 against such rent. lb. 
 
 11. Notice to some of the tenants in com- 
 mon of real estate of facts affecting such prop- 
 erty, is not in any legal sense notice to the 
 others. Sup. Ct., 1872, Loomis v. Board of Sups, 
 of Oneida Co., 6 Lans. 269. 
 
 12. Accounting. Where one tenant in com- 
 mon of property receives all the rents and profits, 
 and in accounting to his co-tenant for her share 
 thereof credits and pays to the latter a larger 
 amount than she is entitled to, he should be 
 allowed the amount overpaid as a payment 
 on a final accounting. N. Y. Supr. Ct., 1871, 
 Schettler v. Smith, 84 N. Y. Supr. (2 J. & Sp.) 17. 
 
 13. Title under grant by one. Where V 
 conveyed a piece of land to G and T, taking 
 back a mortgage, and afterward assigned the 
 mortgage to G, T and S, and T took possession 
 of the land, and with the knowledge of G, con- 
 veyed a specific portion thereof to S, and S de- 
 vised the same to H, who conveyed an undivided 
 half thereof, and afterward brought ejectment for 
 the other undivided half, against one claiming 
 under both her grantee and the grantee of G, — 
 Held, 1. That by the assignment of the mort- 
 gage, G, T and S took it as tenants in common, 
 and the shares of G and T became merged in 
 the fee ; 2. That by the conveyance from T to 
 S, she took only an undivided lialf of the prem- 
 ises conveyed, and one-half her interest in the 
 mortgage became merged ; 3. That H took only 
 such undivided half by the devise, and having 
 conveyed away such half, she had no title to 
 any part of the premises and could not maintain 
 tlie action. Sup. Ct., 1874, Seal v. Miller, 1 
 Hun, 890. 
 
 TENANTS FOR LIFE. 
 
 1. Liability for assessment. A municipal 
 assessment for flagging sidewalks is not in the 
 nature of an annual tax, to be paid wholly by a 
 tenant for life of the premises assessed ; nor is it 
 sucli a permanent improvement as tliat he should 
 not contribute to its payment, but it should be 
 apportioned between him and the remainder- 
 man. Ct. App., 1874, Peck v. Sherwood, 56 N. Y. 
 (11 Sick.) 615. 
 
 2. Surrender. Although a tenant for life or 
 lives may have committed waste, which by the 
 
706 TENANTS AT WILL OR SUFFERANCE— TENDER. 
 
 terms of the lease worked a forfeiture thereof, 
 yet the tenant cannot on demand of the landlord 
 surrender the lease and tlie possession so as to 
 cut off a mortgage previously given bv him 
 thereon. Sup. Ct., 1871, Allen v. Brown, 5 Lans. 
 280 ; S. C, 60 Barb. 39. 
 
 3. As against such mortgage, even as between 
 landlord and tenant, a re-entry for the forfeiture 
 by suit at law is necessary in order to terminate 
 the lease. lb. 
 
 TENANTS AT WILL OR SUFFERANCE. 
 
 1. Occupation by servant. Where the oc- 
 cupation by an employe of a house belonging 
 to his master is connected with his service, or is 
 required expressly or impliedly by the employer 
 for the necessary or better performance of the 
 service, such occupation is that of a servant and 
 not of a tenant ; and a tenancy at will or at suf- 
 ferance does not spring up immediately upon the 
 termination of the service, but to have, that ef- 
 fect it must continue long enough to warrant an 
 inference of consent to a different holding. Ct. 
 App., 1875, Kerrains v. People, 60 N. Y. (15 
 Sick.) 221. 
 
 2. Notice to quit. One who enters upon 
 land by permission of the owner, for an indefinite 
 period, even without any reservation of rent, is 
 by implication of law a tenant at will, and enti- 
 tled under 1 R. S. 745, sec. 7, to one month's no- 
 tice to quit, before his tenancy can be terminated. 
 Ct. App., 1875, Lamed v. Hudson, 60 N. Y. (15 
 Sick.) 102. 
 
 3. One who moved a building upon the land 
 of another, under an agreement that he might 
 occtipy it such time as he wished, or until he 
 should purchase or build a house of his own, and 
 then should leave the building there for the use 
 of the lot, — Held, a tenant a will. lb. 
 
 TENDER. 
 See Actions. 
 
 1. When necessary. Where, on a sale of 
 stock, payment and delivery are to be simul- 
 taneous, no tender of the money is necessary 
 before action brought for the stock. An offer 
 to pay, followed by a neglect to deliver or offer 
 to deliver the stock, is sufficient. Folgbr and 
 Allen, JJ., dissent. Ct. App., 1871, Currie v. 
 White, 45 N. Y. (6 Hand,) 822. 
 
 .2. When valid. A tender Implies, on the 
 part of the actor, an offer to do and a power and 
 willingness, then and there, to do the thing pro- 
 posed. If he has not that power it is in no sense 
 a tender ; but the manner in which he came by 
 the property tendered does not affect the valid- 
 ity of the tender, except as it has a bearing upon 
 his ability to transfer it as proposed. Com. 
 App., 1871, Champion v. Joslyn, 44 N. Y. (5 Hand,} 
 
 3 A tender of a certified check, if objected to, 
 not 'because it is not money, but for some other 
 reason.-ffeZd, sufficient. Ct App., mi, Duffy 
 V. 0'Dono«an, 46 N. Y. (1 Sick.) 223. 
 
 4 Where payment by check of the party from 
 whom money is due has been previously re- 
 quested, a tender by him of lus check for the 
 amount due is sufficient if no objection is taken 
 on accountof Its teing so made, but it is refused 
 on other grounds. N. Y, Supr. Ct. Sp. T., 1874, 
 
 Mitchell V. Vermont Copper Mining Co., 47 How. 
 218. 
 
 5. In case of an executory contract for the sale 
 of articles which are ponderous and bulky, a 
 tender according to the nature of the articles is 
 sufficient, and a manual delivery is unnecessary. 
 Thus, upon a sale of 50,000 pounds of copper, a 
 tender of warehouse receipts for that quantity, 
 with an offer to pay the warehouse charges or 
 deduct them from the price, — Held, sufficient. 
 Ct. App., 1878, Hayden v. Demets, 53 N. Y. (8 
 Sick.) 426 ; Aff'g S. C, 34 N. Y. Supr. (2 J. & 
 Sp.) 344. 
 
 6. Before suit. A tender made on the day 
 that the summons was signed, but before it was 
 actually served, is before suit. N. Y. Supr. Ct., 
 1873, Kelly V. Wgst, 36 N. Y. Supr. (4 J. & Sp.) 
 
 7. The effect of a tender before suit, if of suf- 
 flcent amount, is to bar the recovery of all 
 interest and all costs subsequent to the tender, 
 and entitle the defendant to costs in a suit for 
 the debt; but it does not in any event bar a 
 recovery of the principal sum due, with interest 
 to the day of tender. lb. 
 
 8. Objection obviated. If an objection to 
 the acceptance of goods tendered under a con- 
 tract of sale is immediately-obviated, the pur- 
 chaser cannot afterward insist upon other ob- 
 jections, which, if then made might likewise 
 have been obviated. N. Y. Supr. Ct., 1874, Stokes 
 V. Eecknagel, 38 N. Y. Supr. (6 J. & Sp.) 368. 
 
 9. Discharges lien. Although a tender of 
 the amount of a debt does not discharge the 
 debt, yet, it does relieve the debtor from dam- 
 ages and costs, and discharge a lien given as 
 security therefor. Sup. Ct., 1871, Tiffany v. 
 St. John, 6 Lans. 153. 
 
 10. Thus, the tender by a debtor to an officer 
 selling his property on execution, of an amount 
 sufficient /irijna_/ac!e to cover the debt and sher- 
 iff's fees, discharges the lien of the execution, 
 unless it is shown that the tender was insufficient, 
 lb. 
 
 11. Wlien excused. A debtor is bound to 
 seek his creditor for the purpose of making a 
 tender, if he be within the State ; but if he 
 removes from the State, leaving no one here to 
 receive interest and instalments when they be- 
 come due, the debtor is fSlieved from the obliga- 
 tion to make a tender. Sup. Ct. Sp. T., 1875, 
 Houbie v. Vplkening, 49 How. 169. 
 
 12. Where the defendant's mortgagee removed 
 from the State and went to Europe, leaving no 
 person in this State to receive payments, and the 
 mortgagor had no notice that any one was au- 
 thorized to act for him until service of the papers 
 in an action to foreclose the mortgage, when he 
 tendered both principal and interest to the plain- 
 tiff's attorney, — Held, that the tender was good, 
 but the defendant not having brought the money 
 into court with his answer, the plaintiff was 
 entitled to a money judgment for the amount 
 due and interest, without costs. lb. 
 
 13. If no place of payment is specified in a 
 bond, by the terms of which the principal be- 
 comes due at the option of the obligee, in case 
 the interest remains due and unpaid for 30 
 days, and the obligee is absent from the State 
 at and prior to the termination of the 30 
 days, a readiness on the part of the obligor to 
 pay the interest in this State during that 30 
 days will save the forfeiture, without any tender 
 thereof. Ct. App., 1875, Hale v. Patton, 60 N. 
 Y. (15 Sick.) 233. 
 
 14. A tender, to be effectual, must be made to 
 the creditor or some person authorized by him 
 
TIME— TOWNS. 
 
 707 
 
 to receive it, and if the creditor leave the State 
 and is absent during the time for payment of 
 interest, witliout notifying tlie debtor tliat such 
 authority has been given, he is not bound to 
 tender payment at tlie house where the creditor 
 boards. lb. 
 
 15. Whether, if the creditor had a house of 
 his own in tliis State, where lie resided, it would 
 be the duty of the debtor to tender the money 
 there during his absence, query f lb. 
 
 16. ■When ■waived. If upon a tender of 
 warehouse receipts for a large quantity of cop- 
 per, under an executory contract for the sale 
 and purchase thereof, the purchaser makes no 
 objection to the mode of tender or the quantity 
 tendered, but declines to accept because unable 
 to pay, or asks for an extension of time, he 
 thereby waives all such objections. Ct. App., 
 1873, Hayden v. Demets, 63 N. Y. (8 Sick.) 426. 
 
 TIME. 
 
 1. Computation of. The law will take 
 notice of fractions of a day, when the precise 
 hour becomes material, as, in ascertaining the 
 priority of liens. N. Y. C. P., 1875, Baden v. 
 Buddensick, 49 How. 241. 
 
 2. A notice of a lien filed at noon of the ninth 
 of the month does not expire until the ninth of 
 the same month in the succeeding year, but the 
 lien may be renewed on the latter day, by a new 
 docket on an order obtained to continue it. lb. 
 
 3. A Tweek is a definite period, commencing 
 on Sunday and ending on Saturday ; and an 
 order requiring a publication to be made once a 
 week for six weeks is complied with by its being 
 made once within eacli such period of seven 
 days, although not on the same day of each 
 week. N. Y. C. P. Sp. T., 1872, SteinU v. Bell, 
 12 Abb. N. S. 171. 
 
 had no interest therein ; neither had he any 
 title or interest in the wool growing on the sheep 
 until shearing time, when he would liave fulfilled 
 his contract for their keeping ; and neither the 
 sheep nor their wool were liable to be levied on 
 for his debts. Sup. Ct., 1871, Basbrouckv. Bouton, 
 41 How. 208; S. C., 60 Barb. 413. 
 
 TITLE TO LANDS. 
 See Deeds. 
 
 TOLLS. 
 
 1. Iiiability to penalty. One who passes a 
 turnpike or plank road gate, without paying the 
 toll, is liable for the penalty imposed by statute 
 {3Edm. Stats. 586), his intention not to pay being 
 sufiiciently indicated by the act itself. Sup. Ct., 
 1863, Rome and Oswego Road Co. v. StoTie, 62 
 Barb. 601. 
 
 2. The facts that credit for tolls has previously 
 been given to the person sought to be charged 
 with the penalty, and that he is responsible and 
 well known, and directs the gate-keeper to charge 
 the tolls, do not disprove his intent not to pay, 
 nor relieve him from liability for passing the 
 gate without paying the toll demanded, after he 
 has been notified that credit will no longer be 
 given. »Ib. 
 
 TORTS, Actions foe. \ 
 
 See Actions ; conveesioit ; eeplevin ; 
 
 TEESPASS. 
 
 TITLE TO CHATTELS. 
 See Saih. 
 
 1. By manufacture. The title to chattels 
 manufactured by one doing business for his own 
 sole benefit, but in the name and ^ipon the cred- 
 it of another who furnishes the materials and 
 funds therefor, is in the person upon whose 
 credit the business is conducted, and not in the 
 one beneficially interested. Com. App., 1871, 
 Smith V. Van Olinda, 48 N. Y. (3 Sick.) 169. 
 
 2. By finding. There is a presumption in 
 favor of the finder of chattels, that they have 
 been abandoned by the owner, and therefore that 
 they belong to the finder, but it may not only be 
 repelled by direct proof, but, from the character 
 of the property and the circumstances under 
 which it was found, it may not obtain at all. Ct. 
 App., 1874, N. Y. ^ Barlem R. R. Co. v. Haws, 
 66 N. Y. (11 Sick.) 176; Kev'g S. C, 36 N. Y. 
 Supr. (3 J. & Sp.) 372. 
 
 3. K such finder incurs cost and expenses in 
 rescuing or preserving the property, he is enti- 
 tled to be reimbursed by the owner. lb. 
 
 4. By natural increase. Where a mother 
 gave to her daughter an ewe lamb, and at the 
 same time agreed with the child's grandfather 
 that he should keep such lamb and its increase 
 for the child, and have all the wool for tlie keep- 
 ing ; — Held that the title to the increase of the 
 lamb was in the daughter, and her grandfather 
 
 TOWNS. • 
 
 1. Auditing accounts. Where town audi- 
 tors on the 7th of November audited and allowed 
 an account at $450, but at a meeting three days 
 afterward reduced the allowance to $200, and so 
 included it in their summary and certificate, 
 which were two days later recorded and deliver- 
 ed to the supervisors, — Held, that their action at 
 the second meeting alone was final, and the mak- 
 ing and signing the certificate terminated their 
 right to reconsider and re-examine accounts. 
 Sup. Ct., 1878, People ex rel. Smith v. Board of 
 Town Auditors of Delhi, 6 Hun, 647. 
 
 2. Collector, qualification of. Before a 
 town collector can be put in default for not exe- 
 cuting the bond provided by statute, he must 
 have had either from the board of supervisors or 
 the supervisor of the town, eight days' actual no- 
 tice of the amount of taxes to be collected ; he 
 is not bound to take notice of the proceedings of 
 the board in fixing the amount of tlie tax list. 
 Ct. App., 1873, People ex rel. Williamson v. Mc- 
 Kinnm, 62 N. Y. (7 Sick.) 374. 
 
 3. Such collector, before entering upon the 
 duties of his office, is required, like other town 
 officers, to take the oath of office ; but his failure 
 to do so before the time arrives for filing his of- 
 ficial bond, does not deprive him of his right to 
 the office. lb. 
 
 4. Bounty certificates. Certificates of in- 
 debtedness issued by town supervisors in 1864 
 for bounty to volunteers, became, under the 
 
708 
 
 TOWNS. 
 
 provisions of sec. 1, ch. 8, Laws of 1864, debts of 
 the town, upon which an action would lie against 
 the town, without the claim being first submitted 
 to and acted upon by the board of auditors. 
 Sup. Ct., 1871, arown v. Town of Canton, 4 Lans. 
 409. 
 
 5. Such certificates issued to a minor, and de- 
 livered to his father by his direction, become the 
 property of the father, and after payment there- 
 of to the father or his assignee, the town is not 
 liable to the son for the amount. S. C, 49 N. Y. 
 {4 Sick.) 663. 
 
 6. Bonds for improvements. Where a 
 town has received benefit from a public improve- 
 ment made within its bounds, though made 
 under a law which is in some respects unconsti- 
 tutional, and it afterward accepts and acts under 
 a law confirming the previous proceedings, by 
 issuing bonds for the payment of the expense 
 and receiving the proceeds thereof, it is liable on 
 such bonds. Sup. Ct., 1874, Knapp v. Town of 
 Newtown, 1 Hun, 268. 
 
 7. Action on bonds. The holder of town 
 bonds, payable to bearer, and which appear on 
 their face to be issued in pursuance of the ex- 
 press authority of the legislature, can maintain 
 an action thereon against the town, and is not 
 compelled to resort to mandamus. Sup. Ct., 1874, 
 Marsh V. Town of Little Valley, 1 Hun, 654. 
 
 8. The rule that an action will not lie against 
 a town on a claim arising on contract, applies 
 only to unliquidated charges, and not to settled 
 and admitted debts, resting on bond or other ad- 
 justed, liquidated admission or obligation, bind- 
 ing on a town. lb. 
 
 9. Such bonds are not open to any defense in 
 respect to their vaUdity, in the hands of a hona 
 fide purchaser for value ; nor can the rights of 
 such a holder be taken away by the subsequent 
 repeal of the law under which they were issued. 
 lb. 
 
 10. Bridges, joint liability for. Under ch. 
 283, Laws of 1857, amendatory of ch. 226, Laws 
 of 1841, as well as under the original act, adjoin- 
 ing towns, divided by a stream of water, are lia- 
 ble to build and keep in repair bridges over such 
 stream at the equal expense of such towns, with- 
 out reference to the town lines, or the proportion 
 of such bridge lying within each. The change of 
 the words " at the equal expense," in the original 
 act to " at the joint expense " in the amended 
 act, was not intended to and does not affect the 
 proportion chargeable to each. Ct. App., 1874, 
 Lapham v. Rice, 56 N. T. ( 10 Sick. ) 472. 
 
 11. Bonding in aid of railroads. The 
 power to bond a town in aid of a railroad is de- 
 rived from the grant of the legislature, even 
 though a majority of its citizens may be author- 
 ized to determine whether it shall be exercised ; 
 and the substantial power of the legislature, 
 through the power of taxation, is broad enough 
 to sustain its requirement that a town shall aid 
 in the construction of a road in which, in the 
 judgment of the legislature it has a public in- 
 terest. Com. App., 1874, Town of Duanesburghv. 
 Jenkins, 57 N. Y. (12 Sick.) 177 ; Overruling S. C, 
 46 Barb. 294. S. P., People ex rel. Doty y. Hen- 
 shaw, 61 Barb. 409 ; Cumines v. Board of Sups, 
 of Jefferson Co., 63 Barb. 287. 
 
 12. How the consent of a town to a subscrip- 
 tion for stock and the issuing of bonds for that 
 purpose shall be given, is clearly in the discre- 
 tion of the legislature. It may give the power 
 to consent to a majority in number and amount 
 of the tax-payers, or to the supervisor or any 
 other officer ; and it may also remit a part of the 
 conditions originally imposed, or heal any de- 
 
 fects which may have occurred in the perform- 
 ance by the towns of those conditions. lb. 
 
 13. The act of the legislature declaring that 
 where bonds have been issued by a commissioner 
 of any town, and the railroad shall have been 
 constructed through such town, the bonds shall 
 be valid and binding upon the town without ref- 
 erence to the sufSeiency of the proofs, and that 
 the amount thereof shall be levied, raised and 
 paid as provided in the original act (ch. 402, 
 Laws of 1864), is constitutional, and has the ef- 
 fect to render valid town bonds issued under ch. 
 64, Laws of 1856; ch. 401, Laws of 1857; and 
 ch. 384, Laws of 1859, where the conformity of 
 the consents and proofs to those acf£ is question- 
 ed, lb. 
 
 14. The validity of a proceeding for bonding 
 a town for railroad purposes, must be determined 
 by the law as it exists when the application is 
 presented to the county judge, notwithstanding 
 changes which may have been made in the law 
 since many of the petitioners subscribed it. Sup. 
 Ct., 1872, People ex rel. Hoag v. Peck, 42 How. 
 425 ; S. C, 4 Lans. 528 ; ,62 Barb. 545. 
 
 15. The county judge must proceed under the 
 law existing at that time, and that constitutes 
 his only authority to act. lb. 
 
 16. An application made in June, 1871, which 
 makes it an express condition that the railroad 
 shall be constructed upon a route therein desig- 
 nated, was valid under the law then existing ; 
 and probably the conditions would have been 
 valid under the laws of 1869 and 1870. lb. 
 
 17. The statutes governing such proceedings 
 do not require that the railroad shall be actually 
 located when they are commenced, in order to 
 render them valid, or justify the county judge 
 in directing the bonds to be issued to the com- 
 pany, lb. 
 
 18. Those statutes leave the tax-payers at lib- 
 erty to bond their towns for the construction of 
 railroads not passing through the territorial 
 limits of the municipality in which they are 
 taxed ; but their object is to enable municipal 
 corporations to aid in the construction of roads 
 which may be expected to promote the conven- 
 ience and advance the interests of persons resid- 
 ing or owning property therein, and commission- 
 ers would be restrained from issuing bonds 
 merely for speculative purposes. lb. 
 
 19. The railroad to be aided must be incorpo- 
 rated, but th^t fact need not be proved before 
 the county judge. It is sufficient to state in the 
 petition that the company in view is a railroad 
 company in this State. lb. 
 
 20. A town is not deprived of its power to in- 
 vest its bonds or their proceeds in the proposed 
 railroad, by the fact that another railroad has 
 been incorporated and partially constructed, and 
 is not assessed or taxed in said town, if it is not 
 actually constructed into and in operation in 
 said town. lb. 
 
 21. Jurisdictional facts. In order to sus- 
 tain proceedings for bonding a town in aid of a 
 railroad, it must appear affirmatively that there 
 was lawful authority to bond the town. Juris- 
 diction will not be presumed. Sup. Ct., 1874, 
 People ex rel. Conjoin v. Walter, 2 Hun, 285. 
 
 22. Where an act of the legislature authorizes 
 the bonding of towns situate along the route of 
 the railroad, the actual location of the road in 
 such manner that the town in question lies along 
 its route, is a condition precedent to the lawful 
 institution of any proceedings to bond the town 
 in aid thereof. lb. 
 
 23. The legal existence of the railroad company 
 in whose aid the bonds of a town are proposed to 
 
TOWNS. 
 
 709 
 
 be issued, is a jurisdictional fact, which must he 
 shown in order to autliorize the county judge to 
 proceed under ch. 907, Laws of 1869. Sup. Ct., 
 1872, People ex rel. Beardsley v. Van Valkenburgh, 
 63 Barb. 105. 
 
 24. Articles of association under the railroad 
 act of 1850 (oh. 140), which do not state the 
 name of each county through or into which the 
 railroad is intended to be made, do not show a 
 legal organization ; and the court cannot take 
 judicial notice of distances, and hold the omis- 
 sion immaterial. lb. 
 
 25. Under the provisions of ch. 398, Laws 
 1866, as amended by sec. 3, ch. 917, Laws 1867 ; 
 sec. 4, ch. 84, Laws of 1869, and sec. 1, cli. 298, 
 Laws of 1871, empowering the board of direc- 
 tors of the N. Y. & 0. M. K. R. Co. to construct 
 branches through certain specified counties, 
 whenever, in their judgment, it shall be for the 
 interest of the corporation, and authorizing the 
 towns of the counties through which said 
 branches shall run to issue bonds, etc., it is 
 essential to the "jurisdiction of the assessors to 
 act, and of the town to issue its bonds, that the 
 board of directors should first exercise tlie dis- 
 cretionary power vested in them, and establish 
 a branch road through said county. Ct. App., 
 1874, People ex rel. Akin v. Morgan, 55 N. Y. (10 
 Sick.) 587; Rev'g S. C, 65 Barb. 47i3. 
 
 26. Tlie power given to a county judge rela- 
 tive to town subscriptions to railroad stock, is 
 special and limited ; and in order to give him 
 jurisdiction, the statute must be strictly pursued. 
 A proper petition is the foundation of jurisdic- 
 tion, and where that does not state that the rail- 
 road company is a domestic one, the proceed- 
 ings will be null and void. Ct. App., 1873, People 
 ex rel. Rogers v. Spencer, 55 N. Y. (10 Sick.) 1. 
 S. P., People ex rel. White v. Hulbert, 59 Barb. 
 446; Matter of Town of Gorham, 43 How. 263. 
 
 27. It is essential to the jurisdiction of the 
 county judge that a majority of the tax-payers, 
 representing a majority in amount of the tax- 
 able property of the town, shall have signed the 
 petition. Sup. Ct., 1871, People ex rel. White v. 
 Hulbert, 59.Barb. 446. S. P., People ex rel. Dela- 
 field V. Hughitt, 5 Lans. 89. 
 
 28. The authority of a majority of the tax-pay- 
 ers of a town to mortgage the whole property of 
 its citizens, against the will of the minority, for 
 the purpose of investment in a railroad or other 
 corporation, is derived solely from legislative 
 enactment, having no countenance in the prin- 
 ciples of common law ; and every step required 
 to confer the power must be shown to have been 
 taken in strict conformity with the statute. Ct. 
 App., 1871, People ex rel. White v. Hulbert, 46 N. 
 Y. (1 Sick.) 110 ; Eev'g S. C, 59 Barb. 446. 
 
 29. In proceedings under ch. 907, Laws of 1869 
 (7 Edm. Stats. 517), legal proof must be made 
 before the county judge of all the facts neces- 
 sary to give him jurisdiction, as a condition pre- 
 cedent to the exercise of his authority to appoint 
 commissioners. lb. 
 
 30. Wliere tlie names of some of the petition- 
 ers are signed by other persons, it must appear 
 affirmatively, either that they were present when 
 their names were affixed, or that the authority 
 was in writing ; and, although no objection is 
 taken at the hearing, there is no waiver on the 
 part of those not signing and who did not attend 
 the hearing. lb. 
 
 31. Where names are signed in a representa- 
 tive capacity, their appointment and authority 
 to bind tlie estate must be affirmatively shown ; 
 and in ease of corporation petitioners, their ex- 
 
 ■ istence and solvency, and the authority of per- 
 
 sons signing, must be established by legal proof, 
 lb. 
 
 32. A religious society, assessed as such, may 
 join in the petition, and where it is proved be- 
 fore the county judge that its officers signed the 
 sathe in pursuance of a resolution of its board 
 of trustees, he may properly count it. Pottbb, 
 J., dissents. S. C, 59 Barb,j446. 
 
 33. Where the county judge is a tax-payer of 
 the town, his signing the petition does not dis- 
 qualify him from counting the votes and ascer- 
 taining whether the requisite majority has been 
 given in favor of bonding tlie town. lb. 
 
 34. If the petition does represent the re- 
 quired majority, the county judge has no power, 
 except to obey the statute and appoint the com- 
 missioners, lb. 
 
 35. It is not essential that all the names be 
 signed to a single petition, or that they be pre- 
 sented to the judge at the same time or on the 
 same day, provided they are presented before 
 the order is made. Sup. Ct., 1871, People ex ret. 
 Delafield v. Hughitt, 5 Lans. 89. 
 
 36. It is indispensable to the counting of tax- 
 payers, who did not sign the petitions so pre- 
 sented to the county judge, as consenting, that 
 they should appear personally before the county 
 judge and consent, at the time and place desig- 
 nated for taking proof. lb. S. P., People ex rel. 
 Longwell v. McMaster, 10 Abb. N. S. 132. 
 
 37. The mere expression, in a petition of some 
 of the tax-payers, of a desire that the proceeds 
 of the bonds should be invested m first mortgage 
 bonds of the railroad company, the other peti- 
 tions merely asking that they be invested in the 
 stock or bonds, or both, of the company, does 
 not render such petition informal or insufficient. 
 Sup. Ct., 1871, People ex rel. Delafield v. Hughitt, 
 5 Lans. 89. 
 
 38. The p^ition must contain an averment 
 that the subscribers constitute a majority of the 
 tax-payers,- and represent a majority of the tax- 
 able property on the last assessment roll of the 
 town, otherwise it is fatally defective. lb. 
 
 39. The assessment roll which is to be resorted 
 to in order to ascertain the names of the tax- 
 payers and the amount of their taxable property 
 is the last roll which has been revised and cor- 
 rected by the supervisors. lb. S. P., People ex rel. 
 White V. Hulbert, 59 Barb. 446. 
 
 40. The tax-payers themselves must in their 
 petitions fix the amount for which bonds are to 
 issue, and not leave it indefinite, or to be deter- 
 mined by the commissioners. lb. 
 
 41. The petitioners alone have power to de- 
 termine in which species of property the proceeds 
 of their bonds shall be invested, viz., stock, or 
 bonds. Whether, therefore, a clause in the peti- 
 tion asking that they be invested in stock or 
 bonds, or both, does not render it invalid, querg ? 
 lb. A petition containing such a clause is irreg- 
 ular and defective, and confers no jurisdiction 
 upon the county judge. Sup. Ct., 1872, People 
 ex rel. Beardsley v. Van Valkenburgh, 63 Barb. 105. 
 
 42. A condition, annexed to such petition to 
 the effect, that if the company accept this sub- 
 scription and payment therefor by the proposed 
 bonds they shall thereby forfeit all right to and 
 agree to make no claim to certain other bonds 
 previously authorized to be issued hy such town, 
 renders it fatally defective, since it does not ren- 
 der the issuing of the bonds conditional, nor in 
 any way protect the town from a double issue. 
 Ont. Co. Ct., 1872, In matter of the town of Gor- 
 ham, 43 How. 263. 
 
 43. The proceeding to bond a town for rail- 
 road purposes is a special statutory proceeding. 
 
710 
 
 TOWNS. 
 
 and nothing can be presumed or intended in its 
 favor, but tlie party seeking to sustain it must 
 show that tlie terms of tlie statute have been 
 complied with in all essential particulars. Sup. 
 Ct 1872, People ex rel. Hoag v. Peck, 42 How. 
 425 ; 4 Lans. 528 ; 62 Barb. 545. ^ 
 
 44. To render a tax-payer a petitioner, he 
 must either have signed the petition in person, 
 or his name must hSve been subscribed by some 
 other person by his direction and in his pres- 
 ence, lb. 
 
 45. It cannot be presumed that names not 
 written by the parties themselves were written 
 in their presence ; especially where there were 
 many such cases, and witnesses whose attention 
 was called to that point do not testify to the 
 fact. lb. 
 
 46. Joint owners of taxable property who are 
 taxed together as a firm, are to be counted only 
 as one tax-payer. lb. This is so when such 
 joint owners are partners ; otherwise they are to 
 be counted separately. Sup. Ct., 1871, People ex 
 rel. Sayre v. Franklin, 5 Lans. 129. 
 
 47. In determining when the petitioners for 
 bonding a town for railroad aid constitute ama- 
 jority of the tax-payers in number, all the names 
 upon the tax roll must be counted, including 
 those of persons only taxed for dogs. Sup. Ct., 
 1871, People ex rel. Longwell v. McMaster, 10 Abb. 
 N. S. 132. 
 
 48. Under the amendment of 1871 (ch. 925, 
 Laws of 1871), the petition must show that those 
 petitioning constitute a majority of the tax- 
 payers exclusive of those taxed for dogs or 
 highway tax only, otherwise, the county judge 
 will have no jurisdiction. Ct. App., 1873, People 
 ex rel. Green v. Smith, 55 N. Y. (10 Sick.) 135. 
 
 49. To ascertain whether a majority of the 
 persons whose names appear on the tax roll 
 have consented to bonding the town, joint own- 
 ers of property are to be counted separately ; — 
 a partnership is to be counted as one tax-payer ; 
 — a person assessed individually, and also as 
 guardian or trjistee, is to be counted but once ; 
 — assessments against persons as representing 
 estates of deceased persons must be excluded 
 from the count; — and one whose name appears 
 on the roll and who has signed the petition, 
 must be counted, although he has parted with 
 his property in the town or even removed there- 
 from before signing the petition. Sup. Ct., 1871, 
 People ex rel. Sayre v. Franklin, 5 Lans. 129. 
 
 50. Whether one partner can bind the firm 
 by signing the petition in its name, or each part- 
 ner must sign it for himself, query ? lb. 
 
 51. Signatures of tax-payers, induced by pay- 
 ments in the nature of bribes, are nevertheless 
 valid. lb. 
 
 62. Signatures obtained by misrepresentations 
 as to the nature of the instrument signed or as 
 to the company to be benefited by the bonds, 
 will be held invalid, where the signers have had 
 no opportunity to inform themselves of the con- 
 tents of the petition ; otherwise, where they 
 have in their possession the means of informa- 
 tion as to the truth, and fail to exercise due care 
 and caution to ascertain it. lb. 
 
 63. The petition must designate the railroad 
 company to be aided ; and it must be a then 
 existing incorporated company, otherwise the 
 petition is void. lb. 
 
 54. To give a county judge jurisdiction of 
 proceedings, under the act of 1869, for the issue 
 of town bonds in aid of a railroad, it must be 
 shown by competent proof that the names of 
 the petitioners were signed by them in person, 
 or in their presence and at their reijuest, or that 
 
 the person signing for them was autliorized in 
 writing ; and if the return of the county judge 
 to a certiorari issued to review such proceedings 
 merely states that the names were proven to 
 have been written by or upon request of the per- 
 sons named, the proceedings will be reversed. 
 Ct. App., 1872, People ex rel. Allen v. Knowles, 47 
 N. y. (2 Sick.) 415. 
 
 55. Proof of identity of signers. The 
 statute furnishes no mode of proving the identity 
 of the persons signing the consents with those 
 whose names appear on the assessment roll, or 
 the fact that the requisite majority have signed, 
 except by the personal knowledge of the assess- 
 ors, and they must therefore bring that to their 
 aid in determining those questions. Sup. Ct., 
 1873, People ex rel. Akin v. Morgan, 65 Barb. 473. 
 
 56. The affidavit of the assessors is made by 
 statute evidence that the consent of a majority 
 of the tax-payers has been obtained, and a copy 
 of it is admissible in evidence in any court, and 
 it seems is conclusive. lb. 
 
 57. Where a portion of the consents were 
 obtained in 1870 and the residue in 1871, if the 
 affidavit of the assessors shows tliat the requisite 
 number of consents had been obtained, as ap- 
 peared by both rolls, that is sufficient to show 
 that it appeared so by the last roll. Sup. Ct., 
 1872, Pierce v. Wright, 45 How. 1; S. C, 6 Lans. 
 306. 
 
 •58. The statutes make the written consents, 
 affidavits and copy of roll evidence of the juris- 
 diction and of all the facts certified to, in the 
 nature of a record importing absolute verity, 
 and their truth cannot be assailed except in a 
 direct proceeding for that purpose. lb. S, P., 
 Coruiin v. Campbell, 45 How. 9. 
 
 59. If the proceedings of the assessors appear 
 to be in all respects regular and in compliance 
 with the statute, the Supreme Court has no 
 power by action to restrain the commissioners 
 by injunction from issuing the bonds of the 
 town, because the assessors may have predicat- 
 ed their conclusion upon facts failing to warrant 
 it. lb. 
 
 60. The proper remedy, in such a case, to re- 
 view and correct the decision of the assessors, is 
 by writ of certiorari ; and the neglect of the par- 
 ties to apply for it in proper time affords no 
 ground for allowing an injunction. lb. 
 
 61. 'Withdrawal of consents. At any 
 time before the final hearing by the county 
 judge, any tax-payer who has signed a petition, 
 for the bonding of his town in aid of a railroad 
 enterprise, has a right to withdraw therefrom, 
 and in such case, his name and property must 
 be excluded from the computation, in determin- 
 ing whether a sufficient number have signed. 
 Ct. App., 1873, People ex rel. Irwin v. Saun/er, 52 
 N. Y. (7 Sick.) 296. S. P., People ex rel. Angel v. 
 Batch, 65 Barb. 430 ; People ex rel. Youmans v. 
 Wagner, 7 Lans. 467. Overruling, People ex rel. 
 Hoaq V. Peck, 42 How. 425 ; 4 Lans. 528 ; 62 
 Barb. 545; People ex rel. Sayre v. Franklin, 6 
 Lans. 129 ; People ex rel. Doty v. Eenshaw, 61 
 Barb. 409. 
 
 62. Review on certiorari. Proeeediiig un- 
 der the act for bonding towns in aid of railroads, 
 have always been reviewed on certiorari, as au- 
 thorized by sec. 4 of that act, and all objections 
 affecting the legality of the proceedings, or the 
 jurisdiction of the county judge, are available 
 on such review. An action in equity will not 
 lie for that purpose. Sup. Ct., 1872, ^jrres v. 
 Lawrence, 63 Barb. 454. 
 
 68. The objection that parties offered to be 
 brought in to withdraw their names were not 
 
TRADE-MARKS. 
 
 711 
 
 actually produced, cannot be taken for the first 
 time on review of the proceedings of the countj' 
 judge, if lie rejected the offer upon a general 
 objection when made. • Sup. Ct., 1875, People ex 
 rel. Youmans v. Wagner, 7 Lans. 467. 
 
 64. The proceedings of the county judge upon 
 a petition for bonding a town for railroad pur- 
 poses may be reviewed upon certiorari, on the 
 relation of the town, or of a tax-payer thereof, 
 even though he signed the petition. lb. 
 
 65. It is not essential to a review of the pro- 
 ceedings that the parties opposing before the 
 county judge should be named in his return to 
 the writ. lb. 
 
 66. Effect of decision of county judge. 
 The adjudication of the county judge that ama- 
 jority of the tax-payers of a town have consented 
 to the issue of bonds, creates no absolute right 
 or obligation which can be enforced by a railroad 
 company ; but it merely asserts, confers and 
 invests power in the commissioners to subscribe 
 for stock, and issue bonds in payment, and until 
 they do subscribe, no contract is made or legal 
 liability created on the part of the town. Sup. 
 Ct., 1875, In matter of Buff. ^ Jamestown R. R. 
 Co., 5 Hun, 485. 
 
 67. Authority of commissioners. All the 
 authority possessed by commissioners appointed 
 to subscribe for railroad stock in behalf of a 
 town, is derived from the petition presented to 
 the county judge for leave to subscribe, and 
 from the statute. Sup. Ct., 1872, Rochester, Nun- 
 da Sj' Penn. R. R. Co. v. Guyler, 7 Lans. 431. 
 
 68. The power so conferred must be strictly 
 pursued, and the commissioners cannot bind the 
 town by a subscription to a different company 
 than that designated in the petition, or for a 
 larger amount of stock than that authorized 
 thereby ; neither can they be compelled to sub- 
 scribe for the stock of a company formed by the 
 consolidation of that company with another, un- 
 der a different name and with different termini. 
 lb. 
 
 TRADE-MARKS. 
 
 1. WTiat protected as. A trade-mark may 
 consist of anything — marks, forms, symbols, — 
 which designate the true origin or ownership of 
 the article, but not of anything which merely 
 denotes the name or quality. There can be no 
 right to the use of mere generic words. N. Y. 
 Supr. Ct. Sp. T., 1875, Godillot v. Hazard, 49 
 How. 5. 
 
 2. It is not the secret of manufacture which 
 will be protected, but the device or symbol which 
 is invented and adopted to designate the goods 
 to be sold. lb. 
 
 3. The right to protection is not confined ex- 
 clusively to the manufacturer, but one for whom 
 goods are manufactured exclusively, as the ven- 
 dor has a right to establish a reputation for the 
 quality of the article sold by him, and perpetuate 
 it by a device or trade-mark which would denote 
 its origin and ownership. lb. 
 
 4. The words "conserves alimentaires," with 
 the coat of arms of the city of Paris beneath, the 
 monogram of the claimant on each side in a 
 circle, and the words " Paris " and " Julienne," 
 protected as a trade-mark. lb. 
 
 5. Words and phrases in cominon use, which 
 indicate the character, kind, quality and compo- 
 sition of a thing or manufacture, may not be 
 appropriated by any one to his exclusive use as 
 a trade-mark, although they at the same time 
 
 indicate the origin and maker of the article, and 
 are adopted by the manufacturer for that pur- 
 pose. To be entitled to protection, they must 
 be expressive only of the latter fact and purpose. 
 Ct. App., 1874, Caswell v. Davis, 58 N. Y. (13 
 Sick.) 223. 
 
 6. Nor, except upon these conditions, does the 
 coupling together, in a new combination of 
 words which had before been used apart and 
 had entered into the common or scientific vocab- 
 ulary, give a right to the exclusive use of such 
 combination, lb. 
 
 7. Accordingly, where the manufacturers of a 
 medicine, the principal ingredients of which were 
 iron, phosphorus, and Elixir of Calisaya bark, 
 designated the same as " Eerro-phosphorated 
 Elixir of Calisaya Bark," with which name the 
 bottles containing the compound were labelled, 
 — Held that this phrase was not entitled to pro- 
 tection as a trade-mark. lb. 
 
 8. A trade-mark does not necessarily consist 
 of words alone or of words combined with fig- 
 ures or designs alone, but where a peculiar device 
 is applied to a box or barrel wliich has been 
 especially prepared to receive and give promi- 
 nence to the design, such specially prepared box 
 or barrel constitutes a part of the trade-mark, 
 and will be protected as such. N. Y. Sup. Ct. 
 Sp. T., 1872, Cook V. Starkweather, 13 Abb. N. S. 
 392. 
 
 9. This principle applied to protect the use of 
 a barrel prepared with a red rim around the 
 chime and on the head, and a shellaced prepara- 
 tion of tlie head with the letters A. A. A. and a 
 Maltese cross burnt or branded into such head, 
 as a trade-mark for whiskey of plaintiff's manu- 
 facture, against the use by defendants of barrels 
 with similarly prepared heads, and the letters 
 X. X. X. and a crown branded therein, in such 
 a manner as to be well calculated to deceive the 
 public; even though it was not clear that the 
 plaintiffs were entitled to the exclusive use of 
 the name " Old Valley whiskey," used by both 
 parties to designate the article manufactured by 
 them. lb. 
 
 10. Family name. A man cannot make a 
 trade-mark of his name to the exclusion of a like 
 use of it by another who bears the same name, 
 if the use by the latter is fair and not accompa- 
 nied by any contrivance to deceive. Sup. Ct., 
 1874, Meneely v. Meneely, 1 Hun, 367. 
 
 11. A court of equity will not restrain by in- 
 junction the use by one member of a family of 
 his family name, in carrying on the same busi- 
 ness in which his father had acquired an exten- 
 sive reputation, although other members of the 
 same family have inherited the goodwill of their 
 father's business, and use their family name in 
 carrying it on, in the absence of fraud or deceit, 
 or of any attempt to injure or interfere with the 
 business of the latter, and impose on the public, 
 lb. 
 
 12. A will, whereby a father devises a con- 
 siderable portion of his estate to two sons, charg- 
 ing them with the payment of certain legacies 
 and the maintenance of other children during 
 minority, stating that in doing so he has taken 
 into view that he leaves them " conveniences 
 for carrying on a successful business, — and the 
 goodwill and custom of which it is believed is 
 established and connected with it," does not 
 confer upon them the exclusive benefit of his 
 riame and reputation as a man of skill and fair 
 dealing, and the exclusive use of the family 
 name in the business which he followed. lb. 
 
 13. A firm name is in the nature of a trade- 
 mark, and a, purchaser of " all the right, title 
 
712 
 
 TRADE-MARKS. 
 
 and interest" of one of the partners "in the 
 partnership, and in all the avails and effects 
 thereof," on its dissolution, not expressly includ- 
 ing the good-will or the right to use the firm 
 name, does not thereby acquire the right to use 
 such name as a label on his goods, or to adver- 
 tise himself as the successor of such firm ; and 
 he will be restrained from so doing by injunc- 
 tion. N. Y. Supr. Ct. Sp. T., 1871, Beeves v. 
 Denicke, 12 Abb. N. S. 92. 
 
 14. Foreign name. One who has first 
 adopted here a word from a foreign language to 
 designate an article of his manufacture, such as 
 the word " Grenade " to designate a syrup made 
 by him from the pomegranate, which in French is 
 called grenade, is entitled to be protected by in- 
 junction against the use of the same name by 
 another person, to designate a similar syrup 
 made by him, notwithstanding its previous use 
 in France for the same purpose. Sup. Ct. Sp. T., 
 1870, RiUet V. earlier, 11 Abb. N. S. 186 : S. C, 
 61 Barb. 435. 
 
 15. Geographical names cannot, as a gene- 
 ral rule, be appropriated as trade-marks, but any 
 tradesman may use the name of the place where 
 his article is manufactured with a word descrip- 
 tive of the article itself ; yet this rule does not 
 apply where the intention of the party in adopt- 
 ing the descriptive word is not so much to indi- 
 cate the place of manufacture, as to intrench 
 upon the previous use and popularity of another's 
 trade-mark. Sup. Ct., 1873, Lea v. Wolf, 46 
 How. 157 ; S. C, 15 Abb. N. S. 1. Modifying 
 S. C, 13 Abb. N. S. 389. 
 
 16. Thus, where a party had for 30 years 
 manufactured at Worcestershire an article sold 
 by him under the name of " Worcestershire 
 Sauce," — Held, that he should be protected 
 by injunction against the use of the same name 
 by other parties upon a similar article put up by 
 them, with labels and wrappers imitating in 
 color, size, language and appearance, those used 
 by the former party, but manufactured at another 
 place, lb. 
 
 17. Gold medal. The terms " gold medal," 
 as applied to a manufactured article, do not in- 
 dicate origin or ownership, but merely quality, 
 or that in some competitive exhibition a gold 
 medal has been awarded to the article for its ex- 
 cellence, and consequently they cannot be ap- 
 propriated as a trade-mark. Ot. App., 1874, 
 Taylor .v. Gillies, 59 N. Y. (14 Sick.) 331. 
 
 18. Label. A person who has by a combina- 
 tion of elements and symbols produced a wrapper 
 to enclose and designate his article under which 
 it has gone into use and is known, should not be 
 interfered with or despoiled of his lawful busi- 
 ness and gains by the imitation of his label 
 by another who seeks thereby to introduce a 
 similar article. N. Y. Supr. Ct., 1874, Brown v. 
 Mercer, 37 N. Y. Supr. (5 J. & Sp.) 265. 
 
 19. The counterfeiting or imitation of the 
 stamp, wrapper, or label of a mechanic or mer- 
 chant, is by statute made punishable by fine 
 and imprisonment ; and the offending party is 
 also liable to a civil action for damages, and 
 may be restrained from the use of such counter- 
 feit or imitation by injunction. lb. 
 
 20. Mercantile name. The use of a term, 
 which is a true generic designation of merchan- 
 dise by its mercantile name, and does not denote 
 a specific product of any one, as a part of 
 the combination claimed as a trade-mark, cannot 
 give any exclusive right to employ it. Sup. Ct., 
 1873, Wolfe V. Burke, 7 Lans. 151. 
 
 21. Thus, the use of the word "schnapps," to 
 designate an article of Holland gin put up by a 
 
 party in a particular way, cannot give him the 
 exclusive, right to use it as a trade-mark, it being 
 a word previously used here to designate gin. lb, 
 
 22. Apefson cannot claim the use of his name 
 as a trade-mark to the exclusion of another of 
 the same name, the latter's use of it being fair 
 and unaccompanied by a contrivance to deceive, 
 lb. 
 
 23. It seems, a business which is, to some ex- 
 tent, a fraud upon the public, such as the palm- 
 ing off a common alcoholic beverage by a name 
 not generally understood, exclusively as a medi- 
 cine of great value, is not entitled to protection 
 in a court of equity. S. C, 56 N. Y. (ll Sick.) 
 115. 
 
 24. Mineral ivater. The owner of a natu- 
 ral spring producing mineral water of pecu- 
 liar qualities (sutsh as the Congress Spring 
 of Saratoga), who has applied to the spring and to 
 the water flowing from it a conventional name, 
 by which the water has become generally known 
 and under which it has been extensively sold by 
 him as a useful article, is entitled to be pro- 
 tected in the exclusive use of such name as his 
 trade-mark in the sale of that article. Ct. App., 
 1871, Congress ^Empire Spring Co. v. High Rock 
 Congress 'Spring Co., 10 Abb. N. S. 348 ; S. C, 
 45 N. Y. (6 Hand,) 291 ; Hev'g S. C, 57 Barb. 
 526. 
 
 25. The law of trade-marks is applicable as 
 well to commodities which are natural, as to 
 those which are artificial. lb. 
 
 26. The purchase of a mineral spring and all 
 interest of the original proprietors, who had ap- 
 plied a name or trade-mark thereto, gives the 
 purchaser the same right to use such trade-mark, 
 and to be protected therein as had his vendors, 
 lb. 
 
 27. The cases on the subject of trade-marks 
 collected, and the law for the registration of 
 trade-marks given. 10 Abb. N. S. 349, 350. 
 
 28. The street number of the building oc- 
 cupied by a manufacturer in a city, cannot 
 become a part of his trade-mark, unless he has 
 the exclusive use of the only building designated 
 by that number on the street. Sup. Ct., 1871, 
 Glen ^ Hall Manuf. Co. v. Hall, 6 Lans. 158. 
 
 29. Who protected. A person, not the dis- 
 coverer or inventor of an article of manufacture, 
 if permitted by the latter, with his acquiescence, 
 to appropriate it with its name, and to hold 
 it out to the public as his own, will become the 
 proprietor of the name, and entitled to protection 
 as such, if he meets the other conditions pre- 
 scribed by the law in such cases. Ct. App., 1874, 
 Caswell V. Davis, 58 N. Y. (13 Sick.) 223. 
 
 30. Infringement, what is. Where the plain- 
 tiff has used a trade-mark upon lard, refined and 
 packed by him, which includes a figure of a pig 
 or hog, and the article has received in the trade 
 the name of " the pig brand," a label used by 
 defendants of similar style, having on it the de- 
 vice of a small boar upon a globe, which would 
 be likely to pass with purchasers inquiring for 
 " the pig brand," — Held, to be an infringement, 
 which would be restrained by injunction. N. Y. 
 Supr. Ct. Sp. T., 1873, Popham v. Wilcox, 14 
 Abb. N. S. 206. . 
 
 31. Proof that the defendants used the same 
 material for representing and securing their 
 trade-mark, of the same shape and size, with the 
 same distribution of words indicating the com- 
 modity as the plaintiff, is sufficient to show their 
 intent to invade the rights of the plaintiff, and to 
 entitle him to protection. lb. 
 
 32. It is an infringement of a trade-mark con- 
 sisting of the terms " Gouraud's Oriental Cream or 
 
TRANSCRIPT— TRESPASS. 
 
 713 
 
 Magical Beautifler," to sell the same preparation 
 under tlie name " Cr6me Orientale by Dr. F. F. 
 Gouraud's Sons," even though the persons so 
 selling are the sons of the owner of the trade- 
 mark. Sup. Ct., 1875, Gouraud v. Trust, 3 Hun, 
 627. 
 
 38. Uniutentional infringement. A de- 
 fendant who has used a trade-mark belonging 
 to the plaintiff, in ignorance of his rights and 
 claims, and without any intention to infringe 
 thereon, maj' be restrained from the future use 
 thereof, but no damages should be recovered by 
 the plaintiff in such a case. Sup. Ct. Cir., 1872, 
 Weed V. Peterson, 12 Abb. N. S. 178. 
 
 34. Use not exclusive. In an action to 
 restrain the use of the figure of a pig with the 
 words " Trade-Mark " on packages of refined 
 lard, where tlie evidence showed that altliough 
 the plaintiff had used such device for 16 
 years he could not tell by whom it was invent- 
 ed ; and that the same figure had for more than 
 20 years been used on packages of crude lard, 
 and for more than 10 years on packages of 
 refined lard, and for nearly that time upon 
 such packages in tin boxes, tliough not stamped 
 in the tin as used by the plaintiff ; and that sim- 
 ilar tin packages had for a long time been used 
 for packing, and shipping refined lard, — Held, 
 thai tlie plaintiff liad not established an exclusive 
 right to use it as a trade-mark. N. Y. Supr. Ct., 
 1874, Popham v. Wilcox, 88 N. Y. Supr. (6 J. & 
 Sp.) 274 ; S. C, before, 14 Abb. N. S. 206. 
 
 85. Registration, effect of. Tlie act of 
 Congress of July 8, 1870, relative to the regis- 
 tration of trade-marks, does not strengthen the 
 title of tlie party whose device is so registered, 
 nor deprive other parties of the right to contest 
 his proprietorship ; nor does it furnisli any new 
 remedy for his protection. N. Y. Supr. Ct. Sp. 
 T., 1873, Popham v. Wilcox, 14 Abb. N. S., 206. 
 
 TRANSCRIPT. 
 
 See Evidence. 
 
 TREASURY NOTES. 
 
 1. Negotiability. A United States 7-30 
 Treasury note, issued 'pursuant to the act of 
 Congress of March 3, 1875 (13 U. S. Stats, at 
 Large, 468), is clearly negotiable, notwithstand- 
 ing it is issued under the seal of the United 
 States, with the name of the payee blank, and 
 with the interest payable at the option of gov- 
 ernment in paper money or coin. Com. App., 
 181i,D{nsmore v. Duncan, 57 N. Y.(12 Sick.) 593. 
 
 2, The negotiability of such a note is not 
 affected by the option therein given tlie holder 
 to receive payment in bonds until such option is 
 exercised ; but where the owner indorses it to 
 the secretary of the treasury for conversion, and 
 delivers it to an express company to be for- 
 warded, its negotiability is destroyed, and 
 cannot be revived by an erasure of such in- 
 dorsement by any one other than such owner. 
 lb. 
 
 TREES. 
 
 1. Shade trees are ornamental trees, witliin 
 the protection of oh. 573, Laws of 1863 {4 Edm. 
 
 Stats. 617). Sup. Ct., 1871, Village of Lancaster 
 V. Richardson, 4 Lans. 136. 
 
 2. Independently of the statute, trees stand- 
 ing in the streets or higliways, the soil of which 
 belongs to adjoining owners, are the exclusive 
 property of such owners, and tliey may remove 
 them at pleasure. lb. 
 
 8. When land is taken by the public for a 
 highway, they acquire the right by statute to 
 use such trees for the making and repair of 
 roads and bridges on such land. lb. 
 
 4. Without authority of the legislature, own- 
 ers of lands taken for highways would not be 
 at liberty to plant shade trees therein, except 
 at tlie hazard of their being removed or de- 
 stroyed by ofiScers in charge of the highways, 
 but that authority is expressly conferred by sec. 
 127 of the highway act (1 Edm. Stats. 485) as to 
 highways not less than three rods wide. lb. 
 
 TRESPASS. 
 See Action. 
 
 1. 'When action lies. A contractor with the 
 State for enlarging a canal has no right, greater 
 than any other individual, to take or intrude 
 upon premises outside the external lines of the 
 enlarged canal, and cannot, therefore, in an ac- 
 tion of trespass by the owner of lands adjoining 
 the canal, for casting stone and dirt from the 
 bed of the canal thereon, interpose his contract 
 as a defense. Ct. App., 1874, St. Peter v. Dent- 
 son, 58 N. Y. (13 Sick.) 418. 
 
 2. Neither can such contractor protect him- 
 self from liability on the ground that the acts 
 complained of were necessary to the perform- 
 ance of the work, and that the consequent in- 
 jury was the unavoidable result of such acts. 
 lb. 
 
 3. The relation existing between the State 
 and the contractor under the contract is not that 
 of principal and agent ; and the State is not in 
 any way responsible for the mode used by the 
 latter in performing the work. Neither is the 
 question of damages one provable against the 
 State under the provisions of ch. 321, Laws of 
 1870, so as to enable the defendant contiactor 
 to invoke the application of the rule that where a 
 remedy is provided by statute the party is con- 
 fined to that. lb. 
 
 4. Where blasting is necessarily performed by 
 such contractor, he is bound to adopt such pre- 
 cautions as will prevent the missiles from reach- 
 ing and injuring the owner of adjoining lands 
 upon his own premises, or to give him personal 
 and timely notice so that he may escape ; and 
 tlie latter is not bound to assume, until he has 
 personal notice or knowledge, that the former is 
 about to do a wrong, and so be on the watch to 
 avoid it. lb. 
 
 5. Entry to build fence. The rule that a 
 party owning personal property whicli is on the 
 land of another has no right to commit a tres- 
 pass by entering and taking it away, does not 
 apply to the necessary entry of one party to en- 
 able him to make his partition fence, inasmuch 
 as the law compels each owner to make his por- 
 tion, and that carries with it the right to such 
 occupation, for the time being, as is required to 
 comply with such legal duty. Sup. Ct., 1871, 
 Carpenter v. Halaet/, 60 Barb. 45; Aff'd, S. C, 
 57 N. Y. (12 Sick.) 667. 
 
 6. Injury by cattle. The removal by one 
 of two adjoining land-owners of his part of the 
 
714 
 
 TRIAL— TRUSTS AND TRUSTEES. 
 
 line fence between them, with notice to the 
 otlier, does not affect his riglit to recover for 
 damages done to liis crops by the cattle of the 
 latter party after he has also removed his part 
 of such fence. Sup. Ct, 1872, Van Slyck v. SnelL, 
 6Lans. 290. 
 
 7. Wilful trespass. One who, with the 
 wanton and malicious purpose to injure and de- 
 stroy tlie property of a railroad company, and 
 obstruct the running of its trains, removes and 
 throws away the coupling pins of a train, is lia- 
 ble to an employe of tlie company who, in at^ 
 tempting to couple the cars without any negli- 
 gence on his part, or on the part of any person 
 ill charge of the train, sustains an injury an one 
 of his hands. Sup. Ct., 1872, Hunger v. Baker, 
 65 Barb. 539. 
 
 8. Joint and several liability. Where 
 several creditors caused attachments to be is- 
 sued simultaneously, and all actively partici- 
 pated in the seizure and removal of the debtor's 
 entire stock of goods at one and the same time, 
 witliout separating tlieir respective proceedings, 
 and their attachments were afterward set 
 aside for irregularity, — Held, that they may be 
 deemed joint tort feasors, and as such liable 
 jointly and severally, at the plaintiff's election ; 
 and those of them who may be sued cannot 
 avail themselves of the acts of the others as a de- 
 fense, nor of tlie subsequent legal appropriation 
 of tlie property by either or any of them_in 
 mitigation of damages. N. Y. Supr. Ct., 1871, 
 Wehle V. But/er, 43 How. 5; S. C, 12 Abb. N. 
 S., 139 ; 34 N. Y. Supr. (2 J. & Sp.) 215 ; 35 N. 
 Y. Supr. (3 J. & Sp.) 1. 
 
 9. Who can sue. One who purchased land 
 after another had wrongfully erected a portion 
 of a mill dam tliereon, cannot maintain trespass 
 for the injury, but must sue in ejectment. Sup. 
 Ct., 1872, Beals v. Stewart, 6 Lans. 408. 
 
 10. Where the owners of a sawmill contracted 
 with T to convey it to him with tlie macliinery, 
 but, by the terms of the contract, the vendors 
 did not part with nor was T to acquire any title 
 or interest in tlie same, nor was T to remove 
 any machinery therefrom, until the whole pur- 
 chase-money, was paid ; and such vendors sub- 
 sequently conveyed to a third party, subject to 
 tlie contract, — Held, that such grantee was the 
 legal owner of the property, and could maintain 
 an action of trespass against one claiming under 
 a license from T, for removing machinery from 
 the mill. Sup. Ct, 1874, Adams v. Farr, 2 Hun, 
 473. 
 
 11. Damages. The owner of land who has 
 been ousted, of possession may maintain tres- 
 pass and recover the damages for the entry and 
 ouster ; but damages for the continuing trespass 
 can only be recovered after he has regained pos- 
 session. Ct. App., 1871, Wohler v. Buffalo and 
 State Line R. B. Co., 46 N. Y. (1 Sick.) 686. 
 
 TRIAL. 
 
 See Pbactice. 
 
 TKOVEB. 
 See Actions; convbesion. 
 
 TROY. CITY OF. 
 
 1. Assessments. The city charter (sec. 1, 
 title 4,) provides in relation to street and alleys, 
 that " the expense of ail new work or improve- 
 ments and alterations, not in tlie nature of or- 
 dinarj' repairs, shall be assessed and be a lien 
 upon the property benefited, when completed, in 
 sections or as a whole, and so certified to the 
 comptroller by the local assessors. " Under this 
 provision the grading of Oakwood avenue from 
 the Hoosick road to the water works gate, to an 
 established grade, involving considerable cufting 
 and filling, must be assessed upon the property 
 to be directly benefited thereby, and not upon 
 the city at large ; it being new work, and not 
 ordinary repairs. Sup. Ct. Sp. T., 1871, Brenn 
 V. City of Troy, 41 How. 475 ; S. C, 60 Barb. 
 417. ■'•'■" 
 
 2. Fire limits. The charter of the city of 
 Troy confers upon the common council the 
 power to control the construction of buildings 
 as to materials, to prescribe the limits within 
 which wooden buildings shall not be built, and 
 to impose a penalty not exceeding $500, for a 
 violation of any ordinance. Sup. Ct., 1874, City 
 of Troy V. Winters, 2 Hun, 63. 
 
 3. The council cannot delegate to a committee 
 the power to authorize the erection of a wooden 
 building within the fire limits ; ' and if it could, 
 such power must be exercised by the committee 
 jointly and not severally. lb. 
 
 4. A consent to the erection of a wooden build- 
 ing within the fire limits, signed by two of a 
 committee of three or more to whom the com- 
 mon council had referred the application of the 
 defendant for leave to erect such building, with- 
 out proof that they had power to do anything 
 more than examine and report to tlie common 
 council, or that the other members of the com- 
 mittee had been notified of the meeting to con- 
 sider the same, is invalid, and would be no de- 
 fense to an action to recover a penalty for a 
 violation of the fire ordinance, even if such au- 
 thority could be conferred upon a committee. lb. 
 
 5. Removal of police ofEcer. The police 
 commissioners of Troy have power to enact 
 rules fixing the ages within which persons shall 
 be qualified to serve as police officers, which 
 rules when enacted will apply equally to officers 
 then in office as to those subsequently appoint- 
 ed; and they have jurisdiction under such rules 
 to remove an officer for the disqualification of 
 being oyer age. Sup. Ct., 1872, People ex rel. 
 Grace v. Board of Police Commissioners of Troy, 
 43 How. 385; Aft'g S. C, 12 Abb. N. S. 181. 
 
 TRUSTS AND TRUSTEES. 
 
 I. Implied and kbsulting trusts 714 
 
 IL Express trusts 716 
 
 III. Appointment and removal or trus- 
 
 tees 718 
 
 IV. Rights of cestui que trust 718 
 
 V. Duties, pov^^ers, liabilities and com- 
 pensation OP trustees 719 
 
 L Implied and resulting trusts. 
 
 1. How created. Under the Revised Stat- 
 utes, a trust relating to real estate cannot be 
 created by parol ; but implied trusts and those 
 arising by operation of law are not within the 
 prohibition, and a party is not precluded from 
 establishing any implied or resulting trust known 
 
TRUSTS AND TRUSTEES. 
 
 715 
 
 to the common law. Ct. App., 1872, Foote v . 
 Bryant, 47 N. Y. (2 Sick.) 544. 
 
 2. The transactions out of which a trust of 
 this character arises may he proved by parol, 
 but the trust itself must rest upon the acts or 
 situation of the parties as proved, and not mere- 
 ly upon their parol declarations. lb. 
 
 3. Although one paying the consideration for 
 real estate, the conveyance of whicli is taken in 
 tlie name of another, cannot enforce a trust 
 thereinfor his own benefit against the grantee, 
 yet, where such grantee conveys to a third party 
 at his request, with the intention that such 
 third party shall hold for his benefit, but, with- 
 out his knowledge or consent, conveys by deed 
 absolute, there is raised a resulting trust in his 
 favor, which may be enforced against such 
 third party. lb. 
 
 4. A married woman may enforce such a trust 
 where the consideration was paid by her, al- 
 though the original conveyance was to her hus- 
 band, and prior to the statutes of 1848-9 ; it 
 being competent for him, except as against cred- 
 itors, to recognize her equity, and secure it upon 
 the property. lb. 
 
 5. Absolute conveyance for benefit of 
 another. A party who takes an absolute con- 
 veyance of real property, at the request and for 
 the benefit of another who at tlie time has an 
 interest therein to be protected, will be deemed 
 the trustee of the party for whom lie undertook 
 the purchase, and on tender to him of the pur- 
 chase-money and interest, he may be compelled 
 to convey the property to the one equitably en- 
 titled to it. Sup. Ct., 1874, Church r. Kidd, 3 
 Hun, 254. 
 
 6. Agreement to convey. An agreement 
 whereby a son, in consideration of his mother's 
 joining with him in conveying certain lands in 
 which they were jointly interested, aud allowing 
 him to enjoy the proceeds, agreed to convey to 
 his own son, after his mother's death, other land 
 belonging to her which would descend to him, 
 creates a vaUd resulting trust in him in favor of 
 his son, and the equities of the cestui que trust are 
 superior to those of the creditors at large of the 
 trustee. Sup. Ct., 1874, Norton v. Mallory, 1 
 Hun, 499. 
 
 7. Assignment of chose in action. An ex- 
 ecutory contract for the sale and purcliase of 
 land being a mere chose in action, a trust in 
 respect to it can be by parol, the statute of uses 
 and trusts not applying thereto. N. Y. Supr. Ct., 
 1873, Hazeioell v. Coursen, 36 N. Y. Supr. (4 J. & 
 Sp.) 459. 
 
 8. An assignment, absolute in form, of such 
 a contract, will be held to be in trust, when it 
 appears by oral evidence that the assignor made 
 it for the benefit of a third party to whom he 
 was indebted, and that the assignee had no in- 
 terest in it, and he will be held to be trustee for 
 such third party. lb. 
 
 9. An assignment of such contract in blank 
 by the trustee with the consent of the cestui que 
 trust, and its delivery to the assignor, does not 
 divest the trust or change the relations of the 
 parties, if he does hot absolutely transfer it as 
 contemplated. If a party to whom it is trans- 
 ferred as security for a loan refuses to return it 
 on payment of the loan, the cestui que trust can 
 maintain an action .therefor. 
 
 10. Deed to one partner. Where one of 
 several partners purchases real estate for the 
 firm, paying for it with the funds of the firm, 
 but takes title absolute in his own name, the 
 other partners not authorizing him to take title 
 to himself without recognition of their rights, a 
 
 resulting trust is thereby created in favor of the 
 other partners. The provision of 1 R. S. 728, 
 sec. 51, does not apply to such a case. Sup. Ct., 
 1875, Fairchild v. Fairchild, 6 Hun, 407. 
 
 11. The deposit of a sum in a bank with a 
 direction to credit it to the general account of 
 the depositor, and charge him with his note for 
 a larger amount payable there at a future day, 
 does not make the banker a trustee for the hold- 
 er of such note, or create a specific fund for its 
 payment. Ct. App., 1871, jEtna National Bank 
 V. Fourth National Bank, 46 N. Y. (1 Sick.) 82. 
 
 12. Equitable mortgage. One who takes a 
 deed of building lots, previously contracted to 
 be sold, and agrees with his grantor to advance 
 money to the purchaser for building purposes, 
 and in due time convey to such purchaser and 
 receive back mortgages, and after deducting his 
 advances and certain other claims held by him, 
 pay the surplus to his grantor by transferring 
 tlie second mortgages of the purchaser, is a trus- 
 tee, sub modo, for the grantor, and is bound to re- 
 convey the subject of the trust to him upon 
 payment of the amount due himself on such 
 claims, with expenses of management and in- 
 terest, the conveyance to him being in the nature 
 of an equitable mortgage. Sup. Ct., 1872, Ter- 
 rett V. Crombie, 6 Lans. 82 ; Modified 55 N. Y. (10 
 Sick.) 683. 
 
 13. Such trustee is also bound, until dis- 
 charged from the trust, to hold, manage and 
 preserve the property for the grantor ; and he 
 cannot acquire title to the property, as against 
 his grantor, by purchasing it at a sale under a 
 foreclosure by himself of a second mortgage 
 taken by him of a purchaser, where there has 
 been no settlement between him and his grantor, 
 and the latter was not a party to the action ; and 
 this is so, even though his legitimate claims and 
 the advances and payments made by him 
 amounted to more than the mortgages in his 
 hands. lb. « 
 
 14. Neither is such trustee discharged from 
 the trust by the refusal of the grantor to take 
 back the property and pay his claims and ad- 
 vances, on his request ; nor by his paying the 
 grantor a greater sum than the amount of the 
 mortgages. lb. 
 
 15. Fraud. Where a judgment creditor had 
 expressed a willingness to discharge the judg- 
 ment for a sum much less than its face, and a 
 stranger, learning of it, procured the judgment 
 to be assigned to him for such sum by falsely 
 representing that he was a friend of the judg- 
 ment debtor aud acting for him, — Held, that no 
 trust would be implied in favor of the judgment 
 debtor, and he could not claim the benefit of the 
 purchase. Eapallo and Peckham, JJ., dis- 
 sent. Ct. App., 1871, Garvey v. /arvis, 46 N. 
 Y. (1 Sick.) 310; Aff'g S. C, 54 Barb. 179. 
 
 16. niegcd contract. No valid trust can be 
 founded upon an interest derived from an illegal 
 contract, such as one for the suppression of a 
 criminal prosecution. Sup. Ct., 1865, Bettinger 
 V. Bridenbecker, 63 Barb. 395. 
 
 17. Payment of purchase money. Under 
 the statute in force in 1828, a purchase of land 
 then made for and with the money of three per- 
 sons, and a conveyance taken in the name of 
 one of their number, created a resulting trust in 
 the latter in favor of the other two, to the extent 
 of the moneys contributed by them. Sup. Ct., 
 1871, Trustees of Union College v. Wheeler, 5 Lans. 
 160; S. C, 59 Barb. 585. 
 
 18. Such trust would continue notwithstand- 
 ing a conveyance by the trustee to one of the 
 others of two-thirds of the property, and the 
 
716 
 
 TRUSTS AND TRUSTEES. 
 
 other cestui que trust would be chargeable with 
 notice of sales, made by the trustees, they being 
 in law his agents. lb. 
 
 19. The statute abolishing resulting trusts for 
 the benefit of parties paying the consideration 
 for property, where the grant is made to anotlier, 
 merely abolishes the common-law trust so re- 
 sulting, and having no other foundation, and does 
 not interfere with other equities and rights ex- 
 isting independent of or in connection with the 
 payment of tlie purchase-money. It does not, 
 therefore, affect the case where the grantee ad- 
 vances part of the money to the purchaser and 
 takes the title as a security for its re-payment. 
 Sup. Ct., 1871, Carr v. Carr, i Lans. 314 ; AfE'd, 
 S. C, 52 N. Y. (7 Sick.) 251. 
 
 20. Under the statute of uses and trusts (1 
 E. S. 728, sec. 51 ; 1 Edm. Stats. 677), no trust 
 results in favor of one paying the consideration 
 for lands, where the conveyance is made to an- 
 other at his instance ; but the title vests in the 
 grantee, although the one so paying the con- 
 sideration may receive and retain the deed with- 
 out disclosing its existence to the other, and may 
 take and retain possession of the land. Com. 
 App., 1872, Everett v. Everett, 48 N. Y. (3 Sick.) 
 218. 
 
 21. Land, the consideration for which is paid 
 by one party but the title taken in the name of 
 another, is not subject to the lien of a judgment 
 against the person paying the consideration, or 
 liable to be sold on execution against hira ; but 
 the grantee holds the land impressed with a 
 trust in favor of the creditors of the person pay- 
 ing the consideration, who may subject it to the 
 payment of their claim througli such trust. N. 
 Y. Supr. Ct., 1874, Donovan v. Sheridan, 37 N. Y. 
 Supr. (5 J. & Sp.) 256. 
 
 22. Where the party paying the consideration, 
 takes a contract for the conveyance of the land, 
 and afterward assigns it without consideration 
 to a third p«rson wlio assigns it to the wife of 
 the former, she holds it subject to a trust in fa- 
 vor of the creditors of her husband. lb. 
 
 23. It is not essential, in order to entitle a cred- 
 itor to enforce such trust, that he sliall have 
 exhausted his remedy by judgment and execu- 
 tion returned unsatisfied. N. Y. Supr. Ct., 1874, 
 Sweeny v. Sheridan, 37 N. Y. Supr. (6 J. & Sp.) 
 587. 
 
 24. The statute of uses and trusts does not 
 create a specific lien, in favor of creditors, upon 
 property purchased by funds of the debtor but 
 conveyed to another, wliich would be exempt 
 from the operation of a discharge in bankruptcy ; 
 but confers only an equitable claim, to be en- 
 forced by action. Ct. App., 1871, Ocean National 
 Bank V. Olcott, 46 N. Y. (1 Sick.) 12. 
 
 25. If, after judgment obtained, the debtor is 
 legally discharged in bankruptcy, the claim and 
 all right of action to enforce it becomes thereby 
 barred. lb. 
 
 26. Where a married woman, purchasing an 
 interest in land and paying the consideration 
 therefor, requested a third person to take the 
 title to himself and hold the premises for her, 
 saying notliing about the form of the deed, and 
 he took an absolute deed to himself, she not be- 
 ing present when it was executed nor knowing 
 the form of it, but supposing it to be given for 
 her benefit, — Held, that the case was not within 
 1 B. S. 728, see. 51, but sec. 58 was applicable 
 thereto ; and the conveyance, if made as direct- 
 ed by her, although ineffectual as a trust, would 
 have vested the estate in herself. Com. App., 
 1874, Brown v. Cherri/, 57 N. Y. (12 Sick.) 646; 
 Eev'g S. C, 59 Barb. 628. 
 
 27. Proceeds of stolen bonds. Where 
 stolen bonds are converted into other securities, 
 which are passed into the hands of third parties 
 who have notice that they are the proceeds of 
 such stolen bonds, equity will raise a construct- 
 ive trust in tliem for the benefit of the owners. 
 Sup. Ct., 1872, Newton v. Porter, 5 Lans. 416. 
 
 II. Express trusts. 
 
 28. How created. To constitute a. valid 
 trust under tlie statute (1 R. S. 728, sec. 55; 1 
 Edm. Stats. 678), it is notessential that the pur- 
 pose of it should be stated in the words of tlie 
 statute, but it is sufficient that a purpose within 
 the statute is clearly embraced in the language 
 used, or that a power conferred in express terms 
 includes a power over the estate, for the execu- 
 tion of which the trustee may be clothed with 
 the legal title. Ct. App., 1873, Ve7-non v. Vernon, 
 53 N. Y. (8 Sick.) 351; Modifying S. C, 7 Lans. 
 492. 
 
 29. Thus, a trust to executors to pay an an- 
 nuity to the testator's wife out of the rents of 
 certain property specified is, in legal effect, a 
 trust to receive the rents and profits and apply 
 them to her use,^nd is valid as such. lb. 
 
 30. A pledge of bonds with a power to sell and 
 apply part of the proceeds to advances made, the 
 balance to be accounted for, creates a direct 
 trust ; and the statute of limitations does not 
 as a general rule, begin to run in such a case 
 until there is an open denial or repudiation of 
 the trust, or notice of an adverse claim. Sup. 
 Ct., 1874, Purdy v. Sistare, 2 Hun, 126. 
 
 31. An antenuptial conveyance of the intend- 
 ed wife's property to a trustee, in trust to apply 
 the rents and profits to the joint benefit of the 
 husband and wife during their joint lives, and to 
 the husband during the remainder of his life in 
 case lie survives ; and in case of the husband's 
 death before his wife without issue, then the 
 property to revert to the wife ; if with issue, then 
 to apply the rents to the support of the wife and 
 the children during her life, and after her death 
 to their support during minority, contains no 
 trust in favor of the children in case the husband 
 survives his wife. Com. App., 1873, Jmes v. 
 Butler, 51 N. Y. (6 Sick.) 658. 
 
 32. Validity. Where land is conveyed to a 
 person as trustee, " to have the entire and sole 
 management, direction and control " thereof, 
 but without naming any person as the beneficiary, 
 no trust is created which a court can enforce. 
 The terms and conditions of a trust must appear 
 by the instrument creating it. Ct. App., 1871, 
 Dillaye v. Greenough, 45 N. Y. 438. 
 
 83. It does not necessarily result that the au- v 
 tfipr of a trust is its beneficiary, where the in- 
 strument creating it is silent. lb. 
 
 34. For benefit of grantor. An express 
 trust of personal estate for the benefit of the 
 grantor or donor, is valid and vests the title in 
 the grantee, unless the purposes of the trust are 
 unlawful. Sup. Ct., 1871, Foster v. Coe, 4 Lans, 
 53. 
 
 85. A conveyance of real and personal estate 
 in trust for the sole use of the grantor and his 
 wife during life, and after his decease to be dis- 
 posed of among his heirs as he may direct by 
 will or otherwise, creates a valid trust as to the 
 personal estate at least, and flie husband alone 
 cannot afterward transfer the absolute title 
 thereof to the trustee. lb. 
 
 36. Conveyance of remainder. A con- 
 veyance by the devisee of the remainder in land 
 after the expiration of the life estate of the tes- 
 
TRUSTS AND TRUSTEES. 
 
 717 
 
 tator's widow, of his interest to F S in trust for 
 the sole use and benefit of A S who had mar- 
 ried the widow, during his life in case he sur- 
 vived his wife j with directions to the trustee, in 
 case it became necessary for her support, to sell 
 portions of the land sufficient for that purpose ; 
 and after her and her husband's deatli, the lands 
 remaining unsold to be divided equally between 
 the heirs of the grantor and of the grantee, or in 
 case they themselves were then living, between 
 their children, creates valid trusts, and the deed 
 is effectual to dispose of the estate in remainder. 
 Sup. Ct., 1869, King v. Whaley, 59 Barb. 71. 
 
 37. If A S survived his wife, it would create 
 a valid trust in F S to receive the rents and 
 profits and pay them over to A S during his life. 
 lb. 
 
 . 38. The ^ower to dispose of portions of the 
 land for the support of the wife of A S in case 
 of need, was a power in trust, and the remain- 
 der in fee was valid, being limited upon the lives 
 of only two persons then in being. lb. 
 
 39. Devise to charitable use. A devise 
 , of land to a charitable society, not incorporated 
 
 at the death of the testator, with directions to 
 his executor to keep the same at rent and on in- 
 terest, and pay tlie income to. the trustees of 
 the society when formed, is entirely void. Sup. 
 Ct., 1871, Matter of Roman Catholic So. of New- 
 port Sf Schuyler, i Lans. 74. 
 
 40. The system of charitable uses as recogniz- 
 ed in England, has no existence in this State, 
 and the courts cannot establish or sustain a 
 trust or use wliich is not within our statute of 
 uses and trusts. Ct. App., 1873, Holmes v. Mead, 
 52N.y. (7 Sicls;.) 332. 
 
 41. Passive trust. An assignment of prop- 
 erty to a trustee in trust for the sale thereof, the 
 payment of the debts of the assignor, and tlie 
 investment of the residue, if any, for tlie use of 
 the assignor during life, but, in case of liis 
 decease before the completion of the trust and 
 payment of the debts, the residue to be passed 
 over to his heirs at law, does not give such Iieirs 
 any estate unless he dies before Iiis debts are 
 paid ; nor does it create any trust in the surplus 
 afterpayment of debts, since a mere passive trust 
 to hold for another's use would be invalid. Sup. 
 Ct., 1874, Kittell V. Osborn, 1 Hun, 618. 
 
 42. To sell and convey lands. A con- 
 veyance of all the grantor's real and personal 
 estate, on account of the grantor's age and infir- 
 mities, and in consideration of $1, with a proviso 
 that tlie grantee shall sell and convey the lands 
 at retail, and during the life of the grantor pay 
 over the avails to Mm, and after his death apply 
 them to the payment of his debts and the ex- 
 penses of the trust, and distribute the residue 
 as directed by an instrument subsequently to ba 
 executed by the grantor, or in default of such 
 instrument to tlie grantor's heirs, though void 
 as the creation of an express trust, yet confers a 
 valid power in trust, and is irrevocable by the 
 grantor, even though he does not execute the 
 subsequent instrument contemplated. Millek, 
 PJ., dissenting. Sup. Ct., 1870, FelUms v. Heer- 
 mans, 4 Lans. 230. 
 
 43. An instrument subsequently executed, 
 containing the same provisions with the addition 
 of a provision for renting the lands until sale, 
 and collecting his debts, and applying and pay- 
 ing over all the moneys received, creates a valid 
 trust to receive the rents and profits of the lands, 
 and to collect the principal and interest of secu- 
 rities and dividends on stock, reinvest money 
 and assign securities, and a valid power in trust 
 as to the real estate. lb. 
 
 44. A mere misconception on the part of the 
 grantor of the legal effect of such instruments, 
 not entering as an ingredient into the transaction, 
 is not sufficient to confer on him a power of 
 revocation or to entitle him to have them revoked 
 in equity. lb. 
 
 45. Where the main object of a deed in trust 
 is the sale of the lands tlierein described and 
 payment of the proceeds to the grantor, no valid 
 trust is created, and no title to the lands passes 
 by the deed, even though, until such sale, it 
 authorizes the grantee to rent the lands and col- 
 lect and pay over the rents. Sup. Ct., 1875, 
 Heermans v. Robertson, 3 Hun, 464. 
 
 46. Where such a deed conveys both real and 
 personal property with directions to sell the lands, 
 collect the debts, and pay over the net proceeds 
 to the grantor, it may be revoked at the pleasure 
 of the grantor, so far as it relates to the personal 
 property. Sup. Ct., 1876, Heermans v. Ellsworth, 
 3 Hun, 473. 
 
 47. Suspension of alienation. A deed 
 conveying land to trustees, in trust to apply the 
 rents and profits to the support of the grantor's 
 wife M and son J, and of any children who should 
 thereafter be born, — upon the son's becoming of 
 age to convey to him and M their respective 
 proportions, to be ascertained by dividing equal- 
 ly between M and all the children then living, 
 — if M should then be married the trust to con- 
 tinue during the joint lives of herself and her 
 husband, and the shares of the afterborn chil- 
 dren to be held in trust for them respectively 
 until they sliould become of full age, is void as 
 to such after born children, as illegally suspend- 
 ing the power of alienation, but valid as to M 
 and J. Com. App., 1870, Woodgate v. Fleet, 11 
 Abb. N. S.-41 ; S. C, 44 N. Y. (5 Hand,) 1. 
 
 48. Part invalid. Where part of a devise in 
 trust fails for invalidity, the valid portion will be 
 sustained, unless by such failure the whole 
 scheme of the testator with reference to the trust 
 will be defeated. Ct. App., 1871, Adams v. Per- 
 ry, 43N. Y. (4 Hand,) 487. 
 
 49. A deed conveying land in trust for the 
 benefit of the grantor's wife and child then liv- 
 ing, and of any children of the grantor who 
 should thereafter be born, which is void as to 
 the after born children because illegally sus- 
 pending the power of alienation, but valid as 
 to the other beneficiaries, vests an interest in 
 the trustees to the extent of the valid trusts, 
 leaving the residue of the estate in the grantor. 
 Com. App., 1871, Woodgale v. Fleet, 11 Abb. 
 N. S. 41 ; S. C, 44 N. Y. (5 Hand,) 1. 
 
 50. Title Tvhen vested. A conveyance of 
 lands, made in 1827, to a man and his heirs, in 
 trust to receive the income and apply it to the 
 use of another during life, and upon her death 
 to convey the same to her heirs, vested the legal 
 estate in the trustee and his heir» ; and the trust 
 being an active one, except as to the direction 
 to convey, such estate would not, upon the death 
 of the trustee in 1832 (the beneficiary for life 
 still living), vest in the Court of Chaneerv, under 
 1 B. S. of 1830, p. 780, sec. 68, but would "descend 
 to the heirs of the trustee. Com. App., 1870, 
 Anderson v. Mather, 44 N. Y. (5 Hand,) 249. 
 
 51. Where one of several trustees under a will 
 disclaims acting as sucli by an answer in equity, 
 and refuses to qualify, and subsequently dies 
 without ever having assumed to act, all the 
 estate becomes vested in the surviving trustee, 
 and he and the cestuis que trust are bound by the 
 decree in that suit. Sup. Ct., 1867, Clemens v. 
 Clemens, 60 Barb. 366. 
 
 52. Revocable. A trust created by a {larent, 
 
718 
 
 TRUSTS AND TRUSTEES. 
 
 in view of her death, by the deposit of certain 
 securities to be held for the benefit of her son, 
 may be reroked by her at any time before the 
 trust vests by her death. N. Y. C. P., 1870, 
 Henry v. Fowler, 3 Daly, 199. 
 
 HI. Appointment and Removal op Trustees. 
 
 53. On refusal of trustee to qualify. If 
 
 executors, to wiiom a power of sale is given by 
 the will, the exercise of which is essential to the 
 carrying out of the scheme of the testator, re- 
 fuse to qualify or to act, the power in trust is not 
 thereby defeated, but the duty is devolved upon 
 the court to appoint some suitable person to exe- 
 cute it. Sup. Ct., 1874, floss V. Roba-ts, 2 Hun, 90. 
 
 54. If one named as executor in a will, and as 
 such made trustee of a valid trust, renounces the 
 executorship and refuses to take upon himself 
 the trust, such trust does not fall upon the ad- 
 ministrator with the will annexed, but it becomes 
 vested in the Supreme Court until the appoint- 
 ment by It of a trustee under the will. Sup. Ct., 
 1872, Dunning v. Ocean Nat. Bank of New York, 
 6 Lans. 296. 
 
 65. On death of one or more trustees. 
 Vacancies caused by the death of one or more 
 executors, charged by the will as trustees with 
 the management of the estate, may be filled by 
 the Supreme Court, where the remaining trus- 
 tees fail to exercise a power given them to fill 
 such vacancies. Sup. Ct. Sp. T., 1874, Branson v. 
 Branson, 48 How. 481. 
 
 56. The court can exercise that power, even 
 though there be a trustee capable of executing 
 the trust, whenever the circumstances of the 
 case seem to require it, and it is the sole judge 
 as to when the exigency has arisen. ' lb. 
 
 57. The appointment can be made on petition, 
 and a formal bill is not necessary. lb. 
 
 58. Where a trustee for an infant, who resid- 
 ed in this State, when appointed, and had the 
 trust fund here, and partly executed the trust 
 here, afterward removed to Connecticut, taking 
 with him such trust fund, and died there, but the 
 cestui que trust continued to reside here, — Held, 
 that the Supreme Court had jurisdiction to ap- 
 point a new trustee here. Sup. Ct., 1870, Curtis 
 T. Smith, 60 Barb. 9. 
 
 59. Although it may be necessary for the new 
 trustee to be re-appointed in the foreign State, 
 in order to reach the fund, that does not affect 
 the jurisdiction of our court. lb. 
 
 60. The validity of the appointment of such 
 trustee is not affected by the facts that he was 
 appointed upon petition, and not on bill ; or that 
 the cestui que trust was not a party to the pro- 
 ceeding ; or that other parties, contingently in- 
 terested in the trust fund were not made parties ; 
 those being mere irregularities. lb. 
 
 61. Persons, made parties to the proceeding 
 because claiming an interest in the trust fund, 
 but not showing such interest, cannot urge ob- 
 jections to the regularity of the appointment of 
 a trustee. lb. 
 
 62. The statute devolving a trust upon the 
 court, on the death of a surviving trustee, and 
 authorizing the appointment of a new trustee 
 (1 B. S. 730, sec. 68 ; 1 Edm. Stats. 680), applies 
 as well to a trust of personal as of real estate. lb. 
 
 63. Removal. The refusal of a trustee hav- 
 ing the custody of the books and papers of the 
 estate to deliver them up to his two co-trustees 
 upon their joint demand, though unjustifiable. 
 Is not such misconduct as calls for his removal 
 from his trust. Sup. Ct. Sp. T., 1874, Branson 
 V. Branson, 48 Howi 481. 
 
 64. Neither is it a breach of good faith, for 
 which such trustee should be removed, if he 
 charges the estate with the expenses of clerk 
 hire and office rent, against the objection of the 
 other trustees founded on their opinion of the 
 illegality of such charges. lb. 
 
 65. On petition of cestui que trust. 
 Where the cestui que trust is of full age, and car 
 pable of judging for herself, and forming an 
 opinion as to what person would be agreeable to 
 her as a trustee, her wishes should have great 
 weight with the court ; and it may properly, on 
 a petition signed by the cestui que trust and two 
 of the trustees, remove the third trustee, although 
 nothing may appear against his moral character 
 or fidelity to his trust. Sup. Ct., 1872, In matter 
 of Morgan, 63 Barb. 621. 
 
 66. trnder railroad mortgage. The right 
 to remove a trustee under a railroad mortgage 
 is not absolute, upon the application of a ma- 
 jority of the bondholders for whose benefit he 
 holds, nor is a removal to be capriciously made. 
 Sup. Ct. Sp. T., 1872, Beadleson v. Knapp, 13 
 Abb. N. S. 335. 
 
 67. It is not good ground for the removal of 
 a person who is trustee under two mortgages of 
 a railroad, on application of a majority in inter- 
 est of the bondholders under the first mortgage, 
 that he declines to employ the counsel selected 
 by tliem, and to proceed with the foreclosure of 
 the first mortgage alone, and to resign his trus- 
 teeship under the second mortgage. lb. 
 
 IV. Eiohts of cestui que trust. 
 
 68. Acquiescence in investment. A ces- 
 tui que trust, not sui juris, as a married woman, 
 may acquiesce in an unauthorized investment 
 of trust property given to her sole and separate 
 use, in such manner as to bar her from com- 
 plaining of the investment as improper so as to 
 affect her trustee personally. Ct. App., 1873, 
 Sherman v. Parish, 53 N. Y. (8 Sick.) 483. 
 
 69. But such acquiescence will not prevent 
 her from so far reconsidering as to seek, by ac- 
 tion, a withdrawal of the principal of the fund 
 from the unauthorized investments, and the 
 placing of it in that kind of securities sanctioned 
 by the instrument creating the trust. lb. 
 
 70. Action to restrain misfeasance. It 
 is a positive duty of each trustee to protect the 
 trust estate from every misfeasance on the part 
 of the others acting with him, and to institute 
 and maintain proceedings for that purpose ; 
 and it is only when they refuse to do so, or con- 
 nive in a fraud, that the beneficiaries can main- 
 tain an action in their own names for that pur- 
 pose. Sup. Ct., 1875, Weetjen v. Vibbard, 5 
 iHun, 265. 
 
 71. Avoidance of purchase by trustee. 
 A sale by trustees of the trust estate to one of 
 their number, who is also a beneficiary of the 
 trust, or to another for his benefit, without the 
 knowledge and assent of the other cestuis que 
 trust, is voidable at the option of the latter ; and 
 in an action by them to set aside the convey- 
 ance, it is not necessary that they should show 
 a restoration or an offer to restore the consider- 
 ation paid, they having received no portion 
 thereof. Ct. App., 1874, Tiffany v. Clark, 58 N. 
 Y. (13 Sick.) 632. 
 
 72. A trustee, in making a sale of the trust 
 property, is not permitted to purchase it him- 
 self, or be directly or indirectly interested in 
 such purchase ; but, if he does either make or 
 become interested in such purchase, a court of 
 equity will set it aside on application of the 
 
TRUSTS AND TRUSTEES. 
 
 719 
 
 cestui que trust, even though he paid full value, 
 or the sale was advantageous to such cestui que 
 trust. - Ct. App., 1870, Terwilliger v. Brown, 44 
 N. Y. (5 Hand,) 237 ; Aff'g S. C., 59 Barb. 9. 
 
 73. Ijnforcement of execution. A direc- 
 tion in a will, which vests in the persons named 
 as executor and executrix a power in trust in 
 respect to certain lands, that " at and after " 
 the decease of the testator's wife, such lands 
 shall be sold and conveyed, fixes the time when 
 the power shall vest and be executed ; and 
 its immediate execution can be enforced by any 
 or either of the beneficiaries. . Sup. Ct., 1873, 
 Van Boskerck v. Herrick, 65 Barb. 250. 
 
 74. The court cannot, by its judgment, divest 
 the trustees of such power, merely because of 
 their non-residence, or poverty or inability to 
 agree in the settlement of their accounts as ex- 
 ecutors, lb. 
 
 75. Nor can the court hamper their execu- 
 tion of the power by requiring them to give 
 bonds or security for performance, and impose 
 a forfeiture of the estate as a penalty upon 
 their failure to do so ; but it can compel them 
 to execute the power with all the formalities 
 necessary to carry the title, and the same time 
 provide for the safety and proper disposition of 
 the proceeds, by directing them to be paid into 
 court, or otlierwise. lb. 
 
 76. A statement of account between trus- 
 tees and third parties interested in the trust es- 
 tate, whereby they fix upon a sum as due the 
 latter, made up of a principal debt and the in- 
 terest thereon and a bonus agreed to be paid 
 but not then due, and agree to pay interest 
 thereon, is not binding upon the cestui que trust, 
 if made without autliority from him, even 
 though he gave no notice to such third persons 
 of his dissent for several years after he liad no- 
 tice of the account stated. Sup. Ct., 1874, 
 Church V. Kidd, 3 Hun, 254. 
 
 V. Duties, powers, liabilities and com- 
 pensation OP teustees. 
 
 77. Action by. Section 113 of the Code, 
 which declares ,that the trustee of an express 
 trust may sue without joining the beneficiaries, is 
 permissive only, and does not prevent the beni- 
 ficiaries from suing alone. Ct. App., 1873, Hub- 
 bell V. Medbury, 53 N. Y. (8 Sick.) 98. 
 
 78. Action against. It is not necessary to 
 the maintenance of an action by a creditor to 
 enforce a trust in his favor, arising under the 
 statute of uses and trusts from the payment of 
 the purchase-money of land by his debtor and 
 the conveyance of title to another, that he shall 
 have exhausted his remedy by judgment and 
 execution returned unsatisfied against his debt-i 
 or. N. Y. Supr. Ct., 1874, Sweeny v. Sheridan, 
 37 N. Y. Supr. (5 J. & Sp.) 587. 
 
 79. Contracts by trustee. Ordinarily a 
 trustee cannot make a contract with a third 
 party which shall bind the estate or fund, but 
 is personally liable for his contracts in relation 
 thereto. N. Y. Supr. Ct., 1875, Randall v. Dusen- 
 
 .bury, 39 N. Y. Supr. (7 J. & Sp.) 174. 
 
 80. But where the trustee has no funds in his 
 hands to pay for services necessary to be per- 
 formed in order to obtain possession of or to 
 preserve the trust property, lie may bind such 
 property by a special contract for sucli services 
 to be rendered, not on his personal responsibil- 
 ity, but solely on the faith and credit of the 
 trust property, making such payment contin- 
 gent on success. lb. 
 
 81. One who receives the property secured 
 
 by such services, on the pretense of being a 
 trustee, cannot deny his liability to account as 
 such on the ground that his acts are unlawful 
 and wholly void. lb. 
 
 82. Lease to son. A leasing of trust priSp- 
 erty by a trustee to his son, is not per se a 
 fraud in law upon the cestui que trust, or such a 
 dealing with the property for the benefit of the 
 trustee as is prohibited. The relationship of 
 father and son between the parties will not, of 
 itself, invalidate the lease, or authorize its.dis- 
 afflrmance by the cestui que trust. Dwight and 
 Reynolds, CC, dissent. Com. App., 1874, 
 Lingke v. Wilkinson, 57 N. Y. (12 Sick.) 445. 
 
 83. Loans of funds. Where trustees loan 
 the trust funds without adequate security, and 
 lose them, they are liable therefor to tlie cestuis 
 que trust in an equitable action ; and if one of 
 the trustees dies after such breach of trust, his 
 representatives may be joined with the surviv- 
 ing trustee, as defendants in such action. Sup. 
 Ct., 1871, Sortore v. Scott, 6 Lans. 271. 
 
 84. Wliere funds are set apart from the assets 
 of an estate as trust funds, ttje cestuis que trust 
 are vested with an absolute title thereto, and 
 can maintain an action for their mismanagement 
 and loss. lb. 
 
 85. Misapplication of trust funds. If the 
 trustees of a corporation misapply the trust 
 funds to settle suits brought against them, osten- 
 sibly in the interest of tlie corporation, to restrain 
 the fraudulent issue of stock and sale thereof 
 by them and to compel tliem to account to the 
 purchasers, the party receiving them with 
 knowledge that they are trust funds, is liable to 
 the corporation therefor. Sup. Ct., 1875, Brie 
 Ry. Co. V. Vanderbilt, 5 Hun, 123. 
 
 86. On death of trustee, duty, &c., of bis 
 legal representatives. Upon tlie death of a 
 trustee of personal property, the trust devolves 
 upon his legal representative ; who, as against 
 everybody but the cestui que trust becomes the 
 absolute owner of the property. Sup. Ct., 1872, 
 In Matter of North Shore Staten Isl. Ferry Co., 
 63 Barb. 566. 
 
 87. As trustee, he owes the duty of active 
 management for the protection and preservation 
 of the trust estate ; and if that consists of stock 
 in a corporation, it is his right and duty to vote 
 at corporate elections. lb. 
 
 88. Personal. Where certain persons are 
 appointed by law commissioners to audit claims, 
 it is a personal trust to them as individuals, and 
 it is their duty personally to perform it. It is a 
 violation of duty to delegate it, and they are 
 responsible for any abuse by their delegated 
 agents. Sup. Ct., 1872, People v. Tweed, 13 Abb. 
 N. S. 25. 
 
 89. PoTwer of resident trustee. Although 
 co-trustees must in general act jointly, especially 
 in matters which involve judgment and discre- 
 tion, yet, when one of them is and has been for 
 years absent from tlie country, the resident act- 
 ing trustee may receive payment of a mortgage, 
 and sign and acknowledge a satisfaction piece 
 which will be effectual to cut oS the lien of the 
 mortgage. N. Y. Supr. Ct. Sp. T., 1873, People 
 ex rel. Adams v. Sigel, 46 How. 151. 
 
 90. Sale by. A trustee, upon whom is con- 
 ferred the "entire and sole management, direc- 
 tion and control" of the trust property, and 
 whose appointment is declared to be irrevocable, 
 has power to sell a mortgage impressed with the 
 trust, and a bona fide purchaser will acquire a 
 perfect title thereto. Com. App., 1872, Dillaye, 
 V. Com. Bankof Whitehall, 51 N. Y. (6 Sick.) 346. 
 
 91. A power given to trustees to sell certain 
 
720 
 
 TRUSTS AND TRUSTEES. 
 
 real estate only in case the income from it should 
 be insufficient to support the cestuis que trust, 
 makes such deficiency of income a condition 
 precedent, and they. cannot make a valid sale 
 unless it exists. Sup. Ct., 1872, Griswold v. Perry, 
 7 Lans. 98. 
 
 92. A purchaser from trustees whose power to 
 sell is subject to such condition precedent, must 
 ascertain at his peril whether it has been ful- 
 filled ; and this is so, even though the convey- 
 ance recites that it has been fulfilled. lb. 
 
 93. Before assuming to sell and convey, the 
 trustees should proceed for a settlement of their 
 accounts with the cestuis que trust, so as to show 
 a deficiency in point of fact. An offer to show 
 payments of portions of the income for expenses 
 in tlie care of the property merely, is not suf- 
 ficient to sustain a conveyance made by them, 
 lb. 
 
 94. A condition attached to a power of sale in 
 a trust deed authorizing a sale only by and with 
 the consent of the grantor, to be manifested by 
 her uniting with the trustees in the conveyance, 
 is valid, and the power can only be executed in 
 her life time. Ct. App., 1872, Kissam v. Dierlces, 
 49N. Y. (4 Sick.) 602. 
 
 95. Where a trust estate is vested in infant 
 trustees, the Court of Chancery has power, in 
 the absence of an express prohibition in the in- 
 strument creating the trust, to compel a convey- 
 ance by them of the lands held in trust in such 
 manner as it shall direct. Com'. App., 1870, 
 Andeison v. Mather, 44 N. Y. (5 Hand,) 249. 
 
 96. Such conveyance will be valid though its 
 effect be to pass the equitable estate of an infant 
 cestui que trust. lb. 
 
 97. The provision of the Revised Statutes (1 
 Edm. Stats. 680, sec. 65) declaring void every 
 sale in contravention of the trust expressed in 
 the instrument creating it, has reference to the 
 unauthorized acts of trustees, and does not divest 
 the court of its power over the legal estates of 
 infant trustees conferred by sec. 167, ch. 1, part 
 m. of the Revised Statutes (2 Edm. Stats. 202). 
 lb. 
 
 98. Where a wife, holding an unrecorded deed 
 of land previously conveyed by her husband 
 and herself to her father, devised all her estate, 
 real and personal, to her husband, in trust to 
 hold, sell or invest the same, at his discretion, 
 and apply the income and if necessary'the prin- 
 cipal to the maintenance and education of her 
 children, and authorized him to sell the real 
 estate by public or private sale, and convey it 
 in fee simple, freed from the trust, and without 
 liability on the part of any purchaser as to the 
 application of the purchase-money, &c., and he 
 assumed the trust by taking possession of, rent- 
 ing and improving the estate, but without prov-' 
 ing and recording the will, and afterward erased 
 the name of his deceased wife from the deed 
 and inserted the name of his brother-in-law, 
 caused it to be recorded, and procured the latter 
 to convey to purchasers and mortgagees, he 
 himself receiving and using all the proceeds, — 
 Held, that the estate vested in the trustee by 
 force of the will, without probate thereof; and 
 that he had accepted the trust, and his acts, 
 though irregular and even criminal, were a good 
 execution of the power of sale, and vested a good 
 title in the purchasers and mortgagees, as against 
 a person appointed administrator and trustee, 
 upon a subsequent probate of the will. Sup. 
 Ct., 1875,. DuBois v. Barker, 4 Hun, 80. 
 
 99. Setting aside funds for purposes of 
 trust. An executor, to whom a certain sum is 
 bequeathed in trust, to rtceive and pay over the 
 
 income, has no power to set aside bank stocks 
 for the purposes of the trust, so as either to bind 
 the cestuis que trust without their consent or to 
 relieve the remainder of the estate from liability 
 to perform the trust. Com. App., 1872, Leitch v. 
 Wells, 48 N. Y. (3 Sick.) 685; Rev'g S. C, 48 
 Barb. 637. 
 
 100. Although the cestuis que trust may accept 
 such an appropriation, yet, where new parties 
 and new interests have intervened, the situation 
 of the property at the time must determine the 
 rights of all interested, and they will not b« 
 permitted to annul the title of bona fide purchas- 
 ers, lb. 
 
 101. Succession tax, duty as to. Where 
 by his will devised certain lands to D in trust; 
 to take possession, manage and pay taxes, etc., 
 from the rents until sold ; to sell as soon as con- 
 venient ; and after deducting expenses and pay- 
 ing certain legacies, to pay the residue of the 
 proceeds to E ; and D having sold the lands ad- 
 vanced money to pay the U. S. succession tax, 
 and paid over tlie whole proceeds of the lands 
 to parties to whom E had given a quit claim 
 deed of the lands, and sued E for the tax so 
 paid, — Held, that the devise gave D the legal 
 estate in the lands, subject only to the right of 
 E to enforce performance of the trust ; that E's 
 deed only conveyed that right and the right to 
 receive the proceeds to which E was entitled ; 
 that it was the duty of D as trustee to proceed 
 and sell tlie lands, and pay the succession tax, 
 and to pay over to E or its grantees the residue 
 after deducting the tax so paid ; and that, if he 
 paid over the proceeds to E's grantees without 
 deducting such tax, he .could have no claim upon 
 E therefor. Ct. App., 1873, Ihwall v. English 
 Ev. Luth. Church of St. James, 53 N. Y. (8 Sick.) 
 500 ; AfE'g S. C, 35 N. Y. Supr. (8 J. & Sp.) 505. 
 
 102. A trustee who buys in property under an 
 incumbrance which is prior to his rights as 
 trustee, and at a price below its real value, is 
 always considered as doing it for the use and 
 benefit of his cestui que trust. Sup. Ct., 1875, 
 Fulton V. Whitney, 5 Hun, 16. 
 
 103. Tlie same rule applies in case of a pur- 
 chase of other property, the necessary effect of 
 wliich is to injure the trust property. lb. 
 
 104. One purchasing jointly with a trustee 
 has no better equity than the trustee himself, 
 especially where he is a partner in business of 
 the trustee. lb. 
 
 105. A trustee of the equity of redemption in 
 mortgaged premises, cannot purchase the same 
 at a foreclosure sale, so as to remove them from 
 the operation of the trust ; but he is still liable 
 to be called upon by his cestuis que trust to 
 account for the same, and the rents and profits 
 thereof. Ct. App., 1873, Hubbell v. Medbury, 53 
 N. Y. (8 Sick.) 98. 
 
 106. A trustee is not incapacitated, either at 
 law or in equity, from purchasing the obligations 
 of his cestui que trust, the title to which has be- 
 come legally vested in a third person ; but, 
 whether he will be permitted to enforce them 
 for any greater sum tlian he paid for them, 
 query i Sup. Ct., 1875, Clark v. Flint ^ Peri 
 Marquette Ry. Co., 5 Hun, 556. 
 
 107. A mortgagee of property, who takes 
 another mortgage thereof, with an assignment 
 of a lease giving power to collect and apply 
 rents, to indemnify him for any liability he may 
 incur as surety for the mortgagor on an under- 
 taking, does not thereby become the trustee of 
 the mortgagor, so as to incapacitate him from 
 purchasing an outstanding title to the nroperty. 
 Sup. Ct., 1874, TenEycky. Craig, 2 Hun, 452. 
 
TURNPIKE COMPANY— UNDERTAKING. 
 
 721 
 
 108. A mortgagee in possession does not 
 stand in any such relation of trust or confidence 
 towards tlie mortgagor as to incapacitate him 
 from making sucli a purcliase. lb. 
 
 109. A purchase by a trustee of the property 
 of the cestui que trust, can only be avoided by the 
 latter, or his lieirs or personal representatives. 
 If, under any circumstances, the right to avoid 
 it would pass to a grantee of the cestui que trust, 
 no sucli result would follow as to a purchase by 
 the trustee subsequent to the conveyance to 
 such grantee. lb. 
 
 110. An executor is a trustee for heirs and 
 devisees, as well as distributees and legatees, 
 and if he, having in his hands sufficient funds to 
 pay judgments against the testator, which are 
 applicable thereto, suffers the testator's real 
 estate to be sold on execution under such judg- 
 ments, and purchases it in his own name, such 
 purchase is fraudulent as against the devisee of 
 the real estate, and those claiming under him, 
 and the executor and his assigns hold only as 
 trustees. Sup. Ct., 1872, Prindle v. Beveridge, 
 and Li/tle v. Same, 7 Lans. 225. 
 
 111. In an action by one claiming under the 
 executor to recover such real estate, the grantee 
 of the devisee may set up such fraud as an 
 equitable defense, and avoid the title equally as 
 if he was proceeding as plaintifi for that pur- 
 pose, lb. 
 
 112. An administrator does not stand in the 
 position of trustee to the heirs of his intestate as 
 respects the realty, so as to preclude him from 
 purchasing the same upon a foreclosure sale. 
 Com. App., 1873, HoUing'sworth v. Spaulding, 54 
 N. Y. (9 Sick.) 636. 
 
 113. Purchase from cestui que trust. 
 Although a trustee, holding trust property, can- 
 not legally by any transaction witli himself, 
 change that property into his own, yet, tliere is 
 iJothlng to prevent his purchasing it from the 
 cestui que trust. The courts will, however, ex- 
 amine such transactions with care, to see tliat 
 no undue advantage is taken of the latter. Sup. 
 Ct., 1875, Graves v. Waterman, 4 Hun, 687, 
 
 114. liability for debts. Where a bequest 
 is made to four executors, in trust to invest and 
 apply tlie income to the use of one of their num- 
 ber, tlie appropriation of the income is controlled 
 not by the beneficiary, but by a majority of the 
 trustees ; and suclj income cannot, therefore, be 
 readied by judgment creditors of the cestui que 
 trust, to be applied in satisfaction of their judg- 
 ments. Com. App., 1872, Wetmore v. Truslow, 
 51 N. Y. (6 Sick.) 838. 
 
 115. — for interest. The rule allowing a 
 trustee six months in which to invest funds re- 
 ceived by him, is not applicable to one who 
 denies the trust ; but he is properly chargeable 
 witli interest from the time of receipt. Ct. App., 
 1874, Barker v. White, 58 N. Y. (13 Sick.) 204. 
 
 116. Accounting by trustees. Where a 
 testator by will devised certain real estate to his 
 executors in trust for the payment of his debts, 
 and in case that should prove insufficient, 
 charged the residue of his debts upon other real 
 estate, — Held, that an application on the part of 
 the executors and trustees, to settle their 
 accounts as such, to ascertain the amount of tlie 
 debts and what portion thereof remained unpaid 
 after the application of the proceeds of the real 
 estate devised in trust, and to determine the 
 amount chargeable upon each of the other par- 
 cels, was regular and proper. Ct. App., 1873, 
 Youngs V. Youngs, 53 N. Y. (8 Sick.) 613. 
 
 117. On such reference, the trustees were 
 credited with a balance paid by them, which was 
 
 46 
 
 due upon a contract made by the testator in his 
 life time for the erection of a building upon part 
 of tlie land devised, which was completed 
 shortly after his deatli, — Held, proper ; that the 
 same was chargeable with the other debts upon 
 the real estate. lb. 
 
 118. Clerk hire and office rent may properly 
 be charged by executors, having as trustees the 
 management of a large estate. Sup. Ct. Sp. T., 
 1874, Branson v. Branson, 48 How. 481. 
 
 119. Compensation. Where the instrument 
 creating a trust provides that the trustee shall 
 have compensation for liis services in executing 
 it, he should not be limited to the commissions 
 allowed by statute to executors, etc. ; but wliere 
 the instrument declares tlie rate of compensa- 
 tion, it must be followed, and if it establishes no 
 rate, the value of the services should be ascer- 
 tained by judicial investigation. Ct. App., 1878, 
 Tn matter of Schell, 53 N. Y. (8 Sick.) 263. The 
 rate is to be determined with reference to the 
 special circumstances of the estate and the ser- 
 vices performed. S. C. again, 4 Hun, 65. 
 
 TURNPIKE COMPANY. 
 
 1. Sale. The legislature has power to create 
 a turnpike company, and can authorize it to sell 
 or transfer its corporate rights and franchises, 
 and they may be taken and enjoyed by an in- 
 dividual purchaser. Sup. Ct, 1876, Clow v. Van 
 Loan, 4 Hun, 184. 
 
 UNDERTAKING. 
 
 1. When absolute. A statutory undertak- 
 ing, conditioned " to pay any amount that may 
 be awarded," is an original undertaking on the 
 part of tlie obligors, which becomes absolute 
 when judgment is awarded. N. Y. C. P., 1871, 
 Johnson v. Ackersan, 3 Daly, 430. 
 
 2. Consideration. No expressed considera- 
 tion is necessary to the validity of such an under- 
 taking, and no demand is required before action, 
 unless by the express terms of the instrument, 
 lb. 
 
 3. A statutory undertaking given to procure 
 the discharge of property from an attachment 
 levied upon it, needs no consideration to support 
 it, but it is valid and may be enforced notwith- 
 standing the attachment may have been set 
 aside on counter affidavits. Sup. Ct., 1872, Bil- 
 dersee v. Aden, 12 Abb. N. S. 324 ; S. C, 62 Barb. 
 175 ; Rev'g S. C, 10 Abb. N. S. 163. 
 
 4. An undertaking given on appeal from an 
 order of the General Term granting a new trial, 
 so far as it goes beyond what is required by sec. 
 334 of the Code, for perfecting tlie appeal, is 
 void for want of consideration, unless there is a 
 consideration shown aliunde. Ct. App., 1875, 
 Postv.Doremus, 60 N. Y. (16. Sick.) 371; Mo- 
 difying S. C, 1 Hun, 521. 
 
 5. An undertaking gi-ven on such an appeal, 
 which contained an agreement in excess of that 
 required by tliat section, that "if the judgment 
 so appealed from or any part thereof," was 
 affirmed, or the appeal dismissed, the appellant 
 would "pay the amount directed to be paid by 
 the said judgment," or the part thereof affirmed, 
 and all damages and costs awarded against him 
 on the appeal, was stated, in a case submitted 
 under sec. 372 of the Code, to have been accept- 
 ed by respondent's • attorneys as sufficient, and 
 
722 
 
 UNITED STATES COURTS— USUEY. 
 
 that accordingly said attorneys stayed all pro- 
 ceedings in the Supreme Court pending the 
 appeal, — Held, that this did not show a. consid- 
 eration for that portion of the undertaking; 
 but, if it did, no liability would attach, because 
 no judgment was appealed from ; and if the 
 word "judgment " is construed as including the 
 order appealed from, that does not direct the 
 payment of any sum. lb. 
 
 6. Validity. An undertaking, given in the 
 form prescribed by sec. 335 of the Code, on ap- 
 peal from a judgment for the sale of real estate, 
 tliough not in proper form, is valid against the 
 sureties if it secures the end for which it was 
 given, and stays all proceedings ou the judg- 
 ment. Sup. Ct., 1874, Chamberlain v. AppUgate, 
 2 Hun, 510. 
 
 7. Liability of sureties. Where such judg- 
 ment makes no provision for the payment or 
 recovery of any deficiency, and upon afiirmance 
 on appeal no damages are awarded, they cannot 
 be held liable for the deficiency, nor for any- 
 thing more than the difference between the 
 amount bid for the land at the time of the sale, 
 and wliat it would have brought if sold as di- 
 rected by the judgment. lb. 
 
 8. An undertaking on appeal to the General 
 Term, conditioned that the appellant will pay 
 " all costs and damages which may be awarded 
 against him on said appeal," covers costs of 
 tliat appeal only, and the sureties therein are not 
 liable for the costs of an appeal taken by their 
 principal to the Court of Appeals from a judg- 
 ment of affirmance by the General Term. Ct. 
 App., 1874, Hinckley v.Kreitz, 58 N. Y. (13 Sick.) 
 583 ; Rev'g S. C, 36 N. Y. Supr. (4 J. & Sp.) 413. 
 
 9. As between the sureties in the undertaking 
 for appeal to the Court of Appeals, and those in 
 the undertaking for appeal to the General Term, 
 tlie former are primarily liable for the judgment 
 and costs, and their release by the judgment 
 creditor releases the latter. lb. 
 
 10. The liability of the obligors in an under- 
 taking for an arrest, given under sec. 182 of the 
 Code, depends upon the recovery of a judgment 
 in the action by the defendant. A mere discon- 
 tinuance is not sufficient. N. Y. Supr. Ct., 1874, 
 Moses V. Waterbury Button Co., 37 N. Y. Supr. 
 (5J. &Sp.) 393. 
 
 11. An undertaking given by the defendant 
 in replevin to procure the return of the property 
 is not required to be under seal, and is not a 
 deed. Neither is it evidence against the defend- 
 ant that the property seized and returned is. the 
 same for which the action was brought, or is of 
 tlie value therein recited, but the defendant 
 may contradict it in those respects by other 
 evidence. N. Y. Supr. Ct., 1873, Talcott v. Beld- 
 inq, 46 How. 419 ; S. C, 36 N. Y. Supr. (4 J. & 
 Sp.) 84. 
 
 12. After death of surety. An undertaking 
 given, in pursuance of sec. 336 of the Code, to 
 stay proceedings upon a judgment pending an 
 appeal therefrom, is binding upon the estate of 
 a deceased surety, and an action may be main- 
 tained thereon against his personal representa- 
 tives. Sup. Ct., 1875, Wood v. Fisk, 4 Hun, 525. 
 
 13. Joint. An undertaking on appeal exe- 
 cuted by several sureties, whereby they say 
 " we " undertake, without words of severance, 
 creates a joint and not a several liability ; and the 
 whole liability being created by the instrument 
 itself, equity will not reform it so as to make it 
 joint and several. N. Y. Supr. Ct. Sp. T., 1872, 
 Perry v. Chester, 12 Abb. N. S. 131. 
 
 14. Damages. The word " damages " as 
 used in sec. 334 of the Code, and in an under- 
 
 taking given under it on appeal to the Court of 
 Appeals, does not mean the damages already 
 adjudged in the court below or those afterward 
 to be recovered there by tlie respondent, but 
 only those which the appellate court has power 
 to and may award to him. Ct. App., 1875, Post 
 V. Doremus, 60 N. Y. (15 Sick.) 871; Modifying 
 S. C, 1 Hun, 521. 
 
 TOUTED STATES COURTS. 
 See JuBiSDiCTioir. 
 
 TOIDUE INFLUENCE. 
 See CoNTKAOTs; Wiij-s. 
 
 USAGE. 
 See EviDEKCE. 
 
 1. When binding. To render a custom or 
 usage of trade valid and binding upon parties, 
 it must be known, certain, uniform, of long con- 
 tinuance, reasonable, and not contrary to law. 
 Sup. Ct., 1874, Bassett v. Lederer, 1 Hun, 278 ; 
 S. P., Gallup V. Lederer, 1 Hun, 282. 
 
 2. A custom among merchants to sign receipts 
 presented by carmen upon the delivery of goods, 
 without any inquiry as to the ownership of the 
 goods or the place from which they were received, 
 is entirely unreasonable. lb 
 
 USB AND OCCUPATION. 
 See Lanslobd amd tenant. 
 
 USES AND TRUSTS. 
 See Tbusts and trustees. 
 
 USUEY. 
 
 1. Wliat contracts are usurious. A con- 
 tract whereby a lender of money stipulates 
 for the highest legal interest in any event, and 
 also for a contingent benefit beyond that, is in 
 violation of the statute prohibiting usury, and 
 void. Ct. App., 1870, Browne v. Vredenburgh, 43 
 N. Y. (4 Hand,) 195. 
 
 2. The intent, wliich is essential to constitute 
 usury, is the intent to take or reserve a larger 
 percentage or compensation for a loan than is 
 allowed by law, and that intent must be deduced 
 from and determined by the facts of the case. 
 Ct. App., 1872, Fiedler v. Darrin, 50 N. Y. (5 
 Sick.) 437. 
 
 3. Knowingly and voluntarily taking or re- 
 serving a greater interest or compensation for a 
 loan than is allowed by law, is per se usurious, 
 and the want of intent to violate the statute, or 
 the calling the transaction by some other name 
 than a loan, does not relieve its character. lb. 
 
 4. The usury law of this State declaring all 
 securities, etc., whereon there should be re- 
 
USURY. 
 
 723 
 
 served a greater rate of interest than seven per 
 cent, void, was not repealed as to State banks 
 by cli. 163, Laws of 1870, since the intent of 
 that act, as declared by sec. 2, was to put State 
 banks on an equality with National banks, and 
 must be construed to give tliem no greater 
 rights, and the latter banks are subject to those 
 laws. Ct. App., 1874, Farmers Bank of Fayelte- 
 ville V. Hale, 69 N. Y. (14 Sick.) 63 ; Eev'g S. C, 
 15 Abb. N. S. 276. 
 
 5. Where a borrower agrees with an agent of 
 the lender of money to pay more than the law- 
 ful rate of interest, and does actually pay it to 
 such agent, the contract is usurious, although 
 the written obligation calls only for the legal 
 interest, and the excess was received by the 
 agent without the authority or knowledge of his 
 principal, and was appropriated to his own use. 
 Com. App., 1878, Algur v. Gardner, 54 N. Y. (9 
 Sick.) 360. 
 
 6. A loan of money in currency upon an agree- 
 ment that the borrower shall pay for the same, 
 one-hal£ of one per cent, per month in currency 
 and seven per cent, per annum in gold, the latter 
 being at the time at a premium of 39 per cent., 
 is usurious. Ct. App., 1874, Tyng v. Commercial 
 Warehouse Co., 58 N. Y. (13 Sick.) 808. 
 
 7. Where a corporation, by its charter, was 
 authorized to receive on deposit personal prop- 
 erty, to make advances thereon or on pledge 
 thereof, to collect and receive interest and com- 
 missions at tlie customary and usual rates ; also 
 to take charge of real and personal estate or 
 choses in action, and to advance moneys thereon 
 on such terms and commissions, and at such 
 rates of interest (not exceeding seven per cent.) 
 as should be established by its directors, — Seld, 
 that these provisions did not repeal the usury 
 laws in its favor, and that its power to charge 
 commissions would not be deemed greater than 
 would belong to an individual doing the same 
 business. lb. 
 
 8. A mortgage made without consideration 
 for the purpose of sale, and sold for less than its 
 face, is void in the hands of the purchaser, the 
 transaction being usurious. Sup. Ct., 1862, 
 Vickery v. Dickson, 62 Barb. 272 ; S. C, before, 
 35 Barb. 96. 
 
 9. A mortgage executed by a person as surety 
 for another, without consideration except the 
 surrender of a prior mortgage which is usurious, 
 is tainted with the usury of the first, and cannot 
 be enforced. It makes no difference that it 
 was executed at the request of the principal 
 debtor to become surety for him for a loan. lb. 
 
 10. Where a loaner of money, in addition to 
 taking a mortgage for the amount, and as a part 
 of the- same transaction purchases a prior mort- 
 gage at a discount to him of $100, which sum 
 the borrower pays to the holder of such mort- 
 gage, the transaction is usurious, and the second 
 mortgage is invalid. Sup. Ct., 1878, Walch v. 
 Cook, 65 Barb. 30. 
 
 11. Where a defendant in execution applied to 
 another person for the money to pay it, who 
 agreed to advance it on receipt of the note of 
 such defendant for the amount of the execution, 
 and that of a third party for a sum in addition, — 
 Held, that the contract was usurious, although 
 the party agreeing to furnish the money nego- 
 tiated the notes to obtain it. Com. App., 1873, 
 Wintermute v. Patchin, 54 N. Y. (9 Sick.) 647. 
 
 12. A transaction by which a mortgagee of 
 property takes a deed thereof from one who 
 liolds the legal title, but who is in fact a trustee 
 for anotlier who consents to such conveyance, 
 and at the same time contracts to sell the prop- 
 
 erty to such equitable owner for $150 in addi- 
 tion to the money then advanced and the 
 amount of his old mortgage, all but the latter 
 amount to be paid in four months, and in case 
 of non-payment at that time the agreement to 
 be null and void, is a loan of money, and not a 
 purchase of the premises ; and such deed is in 
 effect a mortgage, and is usurious and void. 
 Ct. App., 1872, FiedUr v. Darrin, 50 N. Y. (5 
 Sick.) 437 ; Rev'g S. C, 59 Barb. 051. 
 
 18. Where a mortgagor agreed with one mort- 
 gagee, who had commenced foreclosure proceed- . 
 ings, to pay him a certain sura in case he would 
 take up a prior mortgage and give him time 
 upon the whole, and to effect that purpose 
 allowed the latter to bid the premises in upon 
 the foreclosure sale, and upon conveyance being 
 made of the same to his wife, joined witli lier 
 in a mortgage for the amount of both prior 
 mortgages and the sum agreed upon, with legal 
 interest, — Held, that tlie transaction was usuri- 
 ous and the security void. Com. App., 1872, 
 Birdsall v. Patterson, 51 N. Y. (6 Sick.) 43. 
 
 14. WTiat are not usurious. A note given 
 for the payment of interest upon arrears of 
 interest due, is not usurious. Ct. App., 1874, 
 Stewart \. Petree, 65 N. Y. (10 Sick.) 621. 
 
 15. Payment of the proceeds of paper dis- 
 counted by draft, deducting the current rate of 
 exchange, does not render the contract usurious, 
 unless it be a mere device for obtaining more 
 than legal interest. Ct. App., 1873, Mosher v. 
 Randall, 62 N. S. (7 Sick.) 649. 
 
 16. No question of usury can arise in case of 
 an advance of money in one place upon a check 
 drawn on another, there being, in such a transac- 
 tion, no loan or forbearance of money for any 
 time whatever. Ct. App., 1871, Crocker v. Col- 
 well, 46 N. Y. (1 Sick.) 212. 
 
 17. A loan of money made in consideration of, 
 or as incidental to, a contract wliich both parties 
 are desirous of making, and which provides to 
 the borrower full compensation for all that he 
 may do in pursuance of it, is not usurious. Ct. 
 App., 1872, Clarke v. Sheehan, 47 N. Y. (2 Sick.) 
 188. 
 
 18. It is not unlawful or usurious to loan a 
 borrower money with which to pay a usurious 
 debt of such borrower to a third party. Sup. 
 Ct., 1871, Wilson v. Harvey, 4 Lans. 607. 
 
 19. A loan by a bank president, out of his in- 
 dividual funds, on bond and mortgage, with 
 knowledge that the money is to be used to pay 
 the borrower's notes to tlie bank of whicli the 
 lender is tlie financial ofiicer, but without any 
 agreement in respect thereto, is not usurious 
 although the money was used to pay such notes, 
 and they were tainted with usury. II). 
 
 20. Where an agreement is made with the 
 maker of a note to discount it for full value, 
 such note is not invalidated by the subsequent 
 taking of usurious interest. Ct. App., 1878, 
 Emmons v. Barnes, 55 N. Y. (10 Sick.) 643 ; Aff'g 
 S. C, 4 Daly, 418. 
 
 21. Compensation for services. The mere 
 retaining of a sum for Ids services by one to 
 whom a mortgage and note were delivered by 
 the maker for negotiation, and who obtained 
 thereon the full value represented by their face, 
 does not render them void for usury in the 
 hands of the party to whom they were trans- 
 ferred. N. Y. Supr. Ct., 1869, Eldridge v. Reed, 
 2 Sweeny, 155. 
 
 22. Nor is it usury for a lender of money on 
 bond and mortgage to take from the borrower, 
 in good faith, a sum paid for searching titles of 
 the mortgaged premises. lb. 
 
724 
 
 USURY. 
 
 23. Where S made a note to raise money 
 upon, and H, agreeing to discount it for a shave 
 of six dollars, received the note and soon re- 
 turned with the check of V for the amount of 
 such note, less legal discount, payable to the 
 order of S, and he drew the money thereon and 
 paid the six dollars to H, who kept tlie same, V 
 having no knowledge of the agreement or of the 
 payment, — Held, that V was not guilty of usury, 
 but was entitled to recover on tlie note. Sup. 
 Ct., 1874, Van Buren v. Stokes, 1 Hun, 434. 
 
 24. Extension of time. A new bond and 
 mortgage given in place of and for tlie exact 
 amount owing upon old ones, in part then due, 
 including unpaid interest, but extending the 
 time of payment, are valid securities, although 
 the object of the transaction is to enable the 
 mortgagee to sell them, and he does sell them at 
 a large discount. Sup. Ct., 1873, Gerwig v. Shet- 
 terly, 64 Barb. 620; Aft'd, S. C, 56 N. Y. (11 
 Sick.) 214. 
 
 26. But if the mortgagee, in such a case, as a 
 part of the transaction, receives from the mort- 
 gagor a note for part of the discount allowed by 
 him upon the sale of the new securities, that 
 taints the transaction with usury and renders 
 the new securities invalid. lb. 
 
 26. Hazard assumed. Where, upon a loan 
 made, the borrower conveys to the lender a 
 farm, which is to be re-conveyed on payment of 
 the loan, usurious interest, and a stipulated rent, 
 if the latter has, for the whole or part of the 
 loan, no personal obligation of anyone, but is 
 limited to the land as a means of replacing it, so 
 that his advances are put to hazard, the transac- 
 tion is not usurious ; but whether, in such case, 
 it is not a sale, but a device intended to cover a 
 usurious contract, is a question of fact for the 
 jury. Ct. App., 1874, Southworth i. Bennett, 58 
 N. Y. (13 Sick.) 659. 
 
 27. Reimbursement of interest paid. The 
 payment by a broker of usurious interest, and 
 charging the same to his principal, in accord- 
 ance with a contract whereby tlie Latter agreed 
 to repay him such interest as he was obliged to 
 pay for money borrowed to enable him to carry 
 certain stocks for the latter, does not amount to 
 an exaction of usury, as between broker and 
 principal, which would avoid their contract. N. 
 y. C. P., 1871, Smith v. Heath, 4 Daly, 123. 
 
 28. By 'what la'w governed. The laws of 
 this State apply to a note payable here, and the 
 maker and indorser of which reside here, and 
 the defense of usury cannot be set up against it, 
 although discounted in New Jersey for a greater 
 rate of interest than is legal there. Sup. Ct., 
 1872, Hackettstoum Bank v. Rea, 6 Lans. 455 : S. 
 C, 64 Barb. 175. 
 
 29. A note made, dated and payable in this 
 State, is to be treated as a New York contract, 
 and the usury laws of this State apply to it al- 
 though negotiated in a foreign country at a rate 
 lawful there but usurious here. Sup. Ct., 1875, 
 Clayes v. Hooker, 4 Hun, 231. 
 
 30. The negotiation of such a note in Canada, 
 at a discount of over 12 per cent., renders it 
 usurious and void here. lb. 
 
 31. If a foreign corporation, authorized by 
 the laws of its own State to borrow money at 
 10 per cent., comes to this State and makes a 
 loan at that rate, and executes its bonds there- 
 for in this State, and payable here witli that 
 rate of interest, such bonds are governed by the 
 laws of this State, and are usurious. Sup. Ct., 
 1866, Smith v. Alvord, 63 Barb. 415. 
 
 32. Drafts accepted and payable in New York 
 are governed by the usury laws of this State, 
 
 and if they are sold in Boston at a discount 
 greater than seven per cent., they are void for 
 usury in th&hands of the purchaser. Sup. Ct., 
 1873, Hildrelh v. Shepard, 65 Barb. 265. 
 
 83. Where parties in this State accept a draft 
 drawn on them by a foreign corporation, for the 
 accommodation of the drawer, — It seems, they 
 thereby indicate an intention that the, drawer 
 may use it in any manner which may be lawful 
 in the State of its residence, and its being dis- 
 counted by the drawer at a rate lawful there, 
 though usurious here, will not affect its validity. 
 Sup. Ct., 1874, First Nat. Bk. ofN. Y. v. Morris, 
 
 1 Hun, 680. 
 
 34. Notes given to a Massachusetts corpora- 
 tion in settlement of a judgment, dated at Pitts- 
 field, Mass., and made payable there, but act- 
 ually drawn and executed here by residents in 
 this State, — Held, to be Massachusetts contracts 
 and governed by the usury laws of that State, 
 although there was some evidence tending to 
 show that they were so drawn to evade the usury 
 laws of this State. Sup. Ct., 1875, Agr. Nat. Bank 
 of Pittsfield V. Sheffield m-ari, 421. 
 
 35. Who may impeach for. An accom- 
 modation indorser of a note, who receives no 
 part of the money advanced and does not aid in 
 its negotiation, or pay or agree to pay any 
 usury, is not a borrower within the meaning of 
 
 2 R. S. 772, sec. 8, as modified by the act of 
 1837, and cannot avail himself of the provisions 
 of those statutes dispensing witli an offer to pay 
 interest or principal, in an equitable action seek- 
 ing relief from an usurious security. Ct. App., 
 1872, Ailerton v. Belden, 49 N. Y. (4 Sick.) 373 ; 
 Kev'g S. C, 3 Lans. 492. 
 
 36. Corporation. The statute prohibiting 
 corporations from setting up the defense of 
 usury, applies only to the avoidance by a cor- 
 poration of its own contract for that cause ; but 
 where a corporation makes its note, drawing 
 only legal interest, for the accommodation of 
 one who subsequently indorses it and sells it at 
 a usurious discount, such corporation may set 
 up the defense of usury against the indorsee. 
 N. Y. Supr. Ct., 1874, Strong v. N. Y. Laundry 
 Manuf. Co., 37 N. Y. Supr. (5 J. & Sp.) 279. 
 
 37. The act prohibiting corporations from in- 
 terposing the defense of usury (ch. 172, Laws 
 1850), only applies to, and prevents the avoid- 
 ance of, contracts made by such corporations 
 themselves. Where a corporation succeeds to 
 the legal rights of a party who might avail him- 
 self of usury, either for attack or defense, the 
 corporation may assert it in like manner. Ct. 
 App., 1872, Merchants Exchange Nat. Bank v. 
 Commercial Warehouse Co., 49 N. Y. (4 Sick.) 
 635; Rev'g S. C, 33 N. Y. Supr. (1 J. & Sp.) 
 317. 
 
 38. Thus, where property pledged to secure a 
 usurious loan, is sold by the pledgor to a corpo- 
 ration for a valuable consideration, the transfer 
 not being made subject to such loan, the corpo- 
 ration may attack the contract of pledge for the 
 usury. lb. 
 
 39. The statute prohibiting corporations from 
 interposing the defense of usury has the effect to 
 except from the statutes of usurj' contracts of 
 corporations stipulating to pay interest, and that 
 defense cannot be interposed to a foreclosure of 
 a mortgage given by a railroad company. Ct. 
 App., 1865, Stevens v. Buffalo, Coming ^ New 
 York R. R Co., 45 How, 104. ' 
 
 40. A joint stock association having any 
 of the powers or privileges of a corporation not 
 possessed by individuals, cannot interpose the 
 
 ', defense of usury to its notes ; nor can Its Individ- 
 
USURY. 
 
 725 
 
 dual indorsers interpose such defense. Sup. Ct., 
 1874, DeBoe v. Smith, 1 Hun, 607. 
 
 41. A guarantor of the bonds of a foreign 
 corporation, executed and payable in this State, 
 cannot avail himself of the defense of usury ; the 
 corporation itself being prohibited by ch. 172, 
 Laws of 1850, from setting up that defense. MuL- 
 LEK, J., dissents. Sup. Ct., 1866, Smith v. Alvord, 
 63 Barb. 415. 
 
 42. Guarantors of a note made by a corpora- 
 tion and discounted 'for its benefit at a usurious 
 rate cannot avail themselves of the defense of 
 usury, being privies to the note and therefore in 
 the same position as the corporation itself. N. Y. 
 Supr. Ct., 1874, Graves v. Lovell, 38 N. Y. Supr. 
 (6 J. & Sp.) 154. 
 
 43. Indorsers for corporation. A corpo- 
 ration not being able to avail itself of the de- 
 fense of usury, in an action upon its paper made 
 in this State, its indorsers are under the same 
 disability. Ct. App., 1875, Union Nat. Bank of 
 Pittsburgh Y. Wheeler, 60 IS. Y. (15 Sick.) 612; 
 AfE'g S. C, 36 N. Y. Supr. (4 J. & Sp.) 536. 
 
 44. The same rule applies to contracts made 
 by a Pennsylvania corporation in that State, the 
 law thereof only fixing the rate in the absence 
 of an agreement, and leaving the parties to agree 
 upon any rate. lb. 
 
 45. Sureties of corporation. Parties here, 
 who accept a draft drawn by a foreign corpora- 
 tion, for the accommodation of such corporation, 
 become simply its sureties, and they cannot in- 
 terpose the defense in an action thereon in this 
 State, that it was subsequently discounted in an- 
 other State at a rate which, though valid tliere, 
 would be usurious here, any more than could 
 the corporation itself. Sup. Ct., 1874, First Nat. 
 Bk. ofN. Y. V. Morris, 1 Hun, 680. 
 
 46. Lienor. The rule that the defense of 
 usury is a personal one, and cannot be pleaded 
 by one having neither privity of estate nor of 
 blood with the borrower, does not exclude a per- 
 son who, like an execution creditor of a mort- 
 gagor of chattels, asserts a lien upon the prop- 
 erty, he not being a stranger. Sup. Ct, 1871, 
 Garow V. Kdly, 59 Barb. 239. 
 
 47. A mortgagor may set up the defense of 
 usury to an action brought by a purchaser to 
 foreclose his mortgage, notwithstanding he has 
 certified that his mortgage is good and valid, if 
 the purchaser was induced to buy, not by a belief 
 of the truth of the certificate, but merely by the 
 belief that as a matter of law the certificate 
 would protect him against that defense. N. Y. 
 Supr. Ct., 1874, Eitd v. Bracken, 38 N. Y. Supr. 
 (6 J. & Sp.) 7. 
 
 48. A mortgagor, who, subsequent to his 
 mortgage, conveyed the premises by warranty 
 deed, which was, in fact, by way of security, and 
 did not bind the grantee to pay such mortgage, 
 and who afterward received a re-conveyance of 
 tlie premises, could at any time set up the defense 
 of usury to an action to foreclose such mortgage. 
 Sup. Ct., 1873, Walch v. Cook, 65 Barb. 30. 
 
 49. Purchaser on execution. One who 
 has purchased real property on execution, or ac- 
 quired an interest therein without any reserva- 
 tion as to a prior mortgage, may attack such 
 mortgage for usury. Sup. Ct., 1875, Knicker- 
 bocker Life Ins, Co. v. Hill, 3 Hun, 577. 
 
 50. Where the attorney of a judgment credit- 
 or purchases such property on the execution, 
 taking the title in his own name, but executing 
 a declaration that he holds it in trust to secure 
 his costs, counsel fees and advances, no estate 
 vests in him but the title is in the beneficiary, 
 and he can attack such mortgage. 
 
 51. The purchaser of premises which are sub- 
 ject to a usurious mortgage, may resist a fore- 
 closure on the ground of the usury, unless he 
 has agreed to pay the usurious debt as a part of 
 the price of the land. Sup. Ct., 1862, Vickery v. 
 Dickson, 62 Barb. 272. 
 
 52. But even though he may have agreed to 
 pay such debt, if he does not do it, but procures 
 a third party to give his own mortgage as a sub- 
 stitute for the usurious one, and indemnifies him 
 for doing so, the latter may set up the defense 
 of usury to an action on his mortgage. lb. 
 
 53. Action to recover back. The statute 
 authorizing actions to recover back money ex- 
 actedfor usurious interest (ch. 163, Laws 1870), 
 gives the right of action to the person or persons 
 paying such interest, and the plaintiff must aver 
 and prove not only that it was exacted but that 
 it has in fact been paid by him. Sup. Ct., 1875, 
 Nash V. Manufacturers If Tr. Bank of Buff., 5 Hun, 
 568. 
 
 54. Under 1 R. S. 772, sec. 4, (1 Edm. Stats. 
 726), the right to sue for the excess of interest, 
 after one year, is transferred to ' certain officers 
 of the town therein designated, and the borrower 
 has no longer a right of action therefor. Ct. 
 App., Palen v. Johnson,?/} N. Y. (5 Sick.) 49. 
 
 55. The act of Congress (sec. 30, ch. 106, Laws 
 1864), regulating the rate of interest and pre- 
 scribing penalties for usury, in respect to na- 
 tional banks, does not apply to contracts by such 
 banks with individuals, relating wholly to their 
 own private concerns ; and an action cannot be 
 maintained against such a bank, under that act, 
 to recover back twice the interest paid on a 
 usurious contract of that nature. Sup. Ct., 1874. 
 Hintermister v. First Nat. Bank of Ghittenango, 3 
 Hun, 845. 
 
 66. Relief against in equity. The acceptor 
 of bills void in the hands of the holder, for usury, 
 is entitled to demand that they be delivered up 
 to be cancelled, and may maintain an action to 
 obtain that relief. N. Y. Supr. Ct., 1873, Taylor 
 T. Chant, 36 N. Y. Supr. (3 J. & Sp.) 853. 
 
 57. It was the design of the usury act of 1837, 
 not to require the courts of equity to entertain 
 suits which, according to their settled practice, 
 they would not have entertained previous to that 
 act, but merely to relieve the borrower, under a 
 usurious contract, from the obUgation to repay 
 the money actually borrowed, in cases where a 
 resort to a court of equity was necessary, either 
 for discovery or relief. Sup. Ct., 1871, Bissell v. 
 Kellogg, 60 Barb. 617. 
 
 58. The grantee of the borrower is not affect- 
 ed by that act, but must do equity as a condition 
 of relief against usury. lb. 
 
 59. Thus, where he has the title to a house 
 and lot whicli was received as the consideration 
 of a usurious mortgage, he should be required to 
 pay the real value thereof as a condition of re- 
 lief, lb. 
 
 60. The omission to make an offer before suit, 
 or in his complaint, to do equity according to tlie 
 practice of the court, now only goes to the ques- 
 tion of costs. If the defendant, to secure his 
 equitable rights, has been compelled to defend 
 the suit, he is entitled to his costs. lb. 
 
 61. Where a party seeking to avoid securities 
 for usury offers to repay tlie principal sum and 
 legal interest, the offer must he accepted before 
 judgment, otherwise tlie opposite party cannot 
 avail himself of it. Ct. App., 1870, Broume v. 
 Vredenburgh, 43 N. Y. (4 Hand,) 196. 
 
 62. Whether, even upon tlie offer, the cpurt 
 could, under the statute, have enforced compli- 
 ance with it, query 1 lb. 
 
726 UTICA, CITY OF— VENDOR AND PURCHASER OF LANDS. 
 
 63. Revival of original debt. The avoid- 
 ance on the ground of usury, of a security 
 taken for a valid debt revives tlie original debt, 
 which may then be enforced by an assignee of 
 the sccuritv- Sup. Ct., 1873, Gerwig v. Shetterly, 
 64 Barb. 620 ; AfE'd, S. C, 56 N. T. (11 Sick.) 214. 
 
 64. Where a bonus is added to a new note 
 given in renewal of an old one, in consideration 
 of the extension of time, and the defense of 
 usury is set up to an action on such note, the 
 holder may still recover in such action the 
 amount which would be due on the old note. 
 Sup. Ct., 1871, Tijffl v. Moor, 59 Barb. 619. 
 
 UTICA, CITY OF 
 
 Charter amended, ch. 391, Laws 1871 ; chs. 77, 
 194, Laws 1874. 
 
 1. Assessments. An assessment of city 
 lots for street improvements, not made to the 
 owner or the occupant is void ; and one made 
 for work done under an ordinance passed with- 
 out a previous filing of the " plans and specifica- 
 tions " required by the charter is also illegal ; 
 and the proceedings to collect such assessments 
 may be restrained by injunction. Sup. Ct. Sp. 
 T., 1872, Mann v. City of Uiica, 44 How. 334. 
 
 2. The act to confirm an assessment for the 
 expense of paving Broad street, passed May 16, 
 
 1872, is constitutional and valid, and makes 
 such assessment a valid lien upon the property 
 assessed. lb. 
 
 8. Ordinances. The city ordinance prohib- 
 iting, under a prescribed penalty, any person 
 from using a wagon or cart on the paved streets 
 for carrying loads of specified unusual weights, 
 unless the tires of such vehicle be of a certain 
 prescribed width, is valid under the provision 
 of the charter, autliorizing ordinances to prevent 
 injury to streets, except that part which directs 
 tliat the expense of weighing the load be added 
 to the penalty when incurred. Oneida Co. Ct, 
 
 1873, City of Utica v. Blakeshe, 46 How. 165. 
 
 VAKIANCE. 
 See Pi^ADiNO ; Feaotiob. 
 
 VENDOR AND PURCHASER OP LANDS. 
 
 1. The contract. A verbal agreement be- 
 tween F, whose land had been sold on a mort- 
 gage foreclosure and M, a third party, that the 
 latter shall pay to the purchaser at such sale the 
 amount due him and take the title from him, 
 and on payment of said sum by P, should con- 
 vey to him, and that in the mean time P shall 
 occupy the premises at a yearly rent, without any 
 agreement by F to pay the purchase price, — 
 Held, not a mortgage, but a conditional sale, 
 creating between the parties the relation of 
 vendor and purchaser. Sup. Ct, 1874, Fullertm 
 V. McCurdi/, 4 Lans. 182 ; AfE'd, S. C, 55 N. Y. 
 (10 Sick.) 637. , , 
 
 2. Covenant for liquidated damages. 
 Under a contract whereby the vendor covenant- 
 ed to sell certain premises, and to execute and 
 deliver a proper deed for the conveyance of the 
 fee simple, free of incumbrances, containing 
 covenants against the acts of the grantor ; and 
 
 further covenanted, in case of failure or refusal 
 to execute and deliver a proper deed, as specified, 
 to pay $5,000 as liquidated damages, — ffetd, 
 tliat the latter covenant applied only to the 
 agreement to execute a deed ; and if the vendee 
 refused to accept such a deed when tendered, on 
 the ground of a defect of title beyond the power 
 of the vendor to remedy, he could not recover 
 the damages stipulated, or anything beyond 
 nominal damages and his expenses. Ct. App., 
 1873, Leggett v. Mut. Life Ins. Co. of N. Y., 53 
 N. Y. (8 Sick.) 394; Rev'g S. C, 64 Barb. 23. 
 
 3. Covenant for title. A provision in a 
 contract for the sale of land, that the vendor 
 shall procure a search of record showing title 
 free of all incumbrances, and shall convey by a, 
 full covenant warranty deed, entitles the pur- 
 chaser to a title perfect of record, and free from 
 all incumbrances. He is not bound to accept 
 one that can be established only by evidence 
 outside of the record. Sup. Ct., 1872, Coray v. 
 Mathewson, 44 How. 80 ;" S. C, 7 Lans. 80. 
 
 4. The absence from the record of one deed 
 in the chain of title, which the vendor is unable 
 to supply, is a defect necessarily lessening the 
 value of the property, which will not be held to 
 be waived except upon the most conclusive 
 evidence of intention to waive it. lb. 
 
 5. In an executory contract for the sale of a 
 lease, tliere is an implied covenant that the lessor 
 had power to grant it, and the purchaser may 
 refuse to complete his purchase unless the lease 
 is valid. N. Y. Supr. Ct., 1875, Bensel v. Gray, 
 38 N. Y. Supr. (6 J. & Sp.) 447. 
 
 6. The fact that such purchaser is in posses- 
 sion under the contract does not estop him from 
 objecting to the title, and showing its invalidity, 
 so long as the contract remains executory. lb. 
 
 7. Dependent conditions. In a contract 
 whereby K, for the consideration therein specifi- 
 ed, to be kept and performed by V, agreed to 
 sell to V certain lands for the sum of $2000, to 
 be paid " $600, on or before the 10th day of April 
 then next," and the balance in subsequent pay- 
 ments secured by mortgage, and that " at the 
 time of making the payment of the sum of $600, 
 and on or before the first day of May next," 
 said K should convey the premises, and take 
 such mortgage, the covenant to pay and the 
 covenant to deed are dependent conditions, and 
 those acts are to be performed at the same time. 
 Sup. Ct, 1872, Van Campen v. Knight, 63 Barb. 
 205. 
 
 8. To give certainty to the contract, and en- 
 able it to determine the rights of the parties, the 
 day last named for tlie conveyance must be con- 
 sidered as inserted by mistake. lb. 
 
 9. The consideration for the payment of $600 
 of the purcliase money was the delivery of the 
 deed, not the vendor's promise to deliver it ; and 
 the purchaser was not in default in not paying 
 it on tlie 10th of April, unless the vendor then 
 had in readiness his deed, and was then willing 
 to convey. lb. 
 
 10. Heatriotive covenant. A vendor of 
 land, in conveying it, may exact stipulations or 
 impose restrictions as to any use or improve- 
 ment of it likely to affect the enjoyment of con. 
 tiguous lands retained by him. Brooklyn City 
 Ct. Sp. T., 1873, Phosnix Ins. Co. v. Continental 
 Ins. Co., 14 Abb. N. S. 266. 
 
 11. A covenant in a deed, by the grantee, not 
 to build upon a certain specified part of the 
 premises conveyed, opposite wliich the grantor 
 has windows in a building retained by him, is 
 binding and creates an easement for the benefit 
 of the premises so retained by the grantor. lb 
 
VENDOR AND PURCHASER OF LANDS. 
 
 727 
 
 12. A furtlier provision in such deed that, for 
 a violation of said covenant, the grantee shall 
 pay the sum of $1600 liquidated damages, does 
 not give him an election to annul the restriction 
 by paying such damages. Nothing less than a 
 clearly manifested intention, or a provision in 
 the contract resting that right in the covenant, 
 would suffice. lb. 
 
 13. Upon a breach of the covenant, the clause 
 as to damages becomes active, and may be en- 
 forced, lb. 
 
 14. Exchange. An agreement by one party 
 to sell to another party a parcel of land, which 
 such other party agrees to buy at a certain price, 
 and to pay for partly by assuming the payment 
 of certain mortgages on the property, partly by 
 conveying to the former party certain land be- 
 longing to him, and the balance by a purchase- 
 money mortgage, is not a sale of land but an 
 exchange. N. Y. C. P., 1873, Stemberger v. Mc- 
 Govem, 4 Daly, 456 ; Aff'd, S. C, 15 Abb. N. S. 
 257. 
 
 15. Good and sufficient deed. A contract 
 to convey by good and sufficient deed is satisfied 
 only by a conveyance which will vest in the pur- 
 chaser an unincumbered title. Ct. App., 1872, 
 Delavan v. Duncan, 49 N. Y. (4 Sick. ) 485. 
 
 16. Houses and lots. A contract " to con- 
 vey seven houses and lots," describing their lo- 
 cation, does not imply any warranty or guaranty 
 that the lots shall have on them, at the time of 
 the conveyance, finished houses, or agreement 
 that if any of the houses are then unfinished, 
 they shall be completed at the expense of the 
 vendor ; and a vendee who takes a deed with 
 knowledge that one of the houses is unfinished, 
 has no legal or equitable claim upon the vendor 
 for repayment of the amount expended by him 
 to finish it. Ct. App., 1874, Canaday v. Sliger, 
 56 N. Y. (10 Sick.) 462; AfE'g S. C'., 35 N. Y. 
 Supr. (3 J. & Sp.) 423. 
 
 17. All prior agreements relating to the pur- 
 chase of lands are merged in the deed, unless the 
 contract sliows a different intention. lb. 
 
 18. Parties contracting for the purchase of 
 'land are presumed to have been upon it and to 
 know its condition, and the maxim caveat emptor 
 applies to them. lb. 
 
 19. Metes and bounds. In the construction 
 of grants, courses and distances must give way 
 to natural or artificial monuments or objects. 
 Tlierefore, where a contract for the sale of lands 
 described the premises as being 120 feet in depth 
 on a certain street, " to and including the stable 
 situated at the rear of said premises," and the lot, 
 in order to include the stable, should be 131 feet 
 and ten inches deep, — Held, that the vendee 
 was entitled to a deed which would include the 
 stable. Com. App., 1872, White v. Williams, 48 
 N. Y. (3 Sick.) 344; Rev'g S. C, 48 Barb. 222. 
 
 20. Time vrhen of essence. Where a con- 
 tract merely gives a right to purchase land at 
 any time within a specified number of months, 
 on certain conditions, time is of the essence of 
 the contract, and it cannot be specifically en- 
 forced unless the buyer exercises his option 
 within the time specified. Sup. Ct., 1874, Cod- 
 ding V. Wamsley, 1 Hun, 685 ; Aff'd, 60 N. Y. 
 (15 Sick.) 644. 
 
 21. — when immateri^. Where the con- 
 tract does not make time material, a party can- 
 not be barred of his rights without notice to 
 perform in a specified reasonable time. Sup. 
 Ct., 1874, Hubbell v. Von Schoening, 2 Hun, 376. 
 
 22; Although there may not, when time has 
 not been made essential, !>e performance at the 
 day, if the delay is excused, and the situation of | 
 
 the parties or of the property is not changed so 
 that injury will result, and the party is reasona- 
 bly vigilant, the court will relieve him from the 
 consequences of the delay and grant a specific 
 performance. Ct. App., 1872, S. C, 49 N. Y. 
 (4 Sick.) 326. 
 
 23. Rights of parties. A vendee of lands 
 in possession has the equitable title thereto, 
 which is capable of being mortgaged. Ct. App., 
 1871, Stoddard v. Whiting, 46 N. Y. (1 Sick.) 
 627. 
 
 . 24. Vendee's right to bark. One who has 
 made a contract for the purchase of wild and 
 unoccupied land, and has also contracted to cut 
 and pile the hemlock bark thereon for liis vendor, 
 has no right in such bark which will entitle him 
 to maintain an action against his vendor for cut- 
 ting and selling the same. Sup. Ct., 1875, Bran- 
 ning v. Hollister, 6 Hun, 361. 
 
 25. — to cut timber. The vendee of lands, 
 in possession by acquiescence under a contract 
 of sale, has no right, without special license from 
 the vendor, to cut standing timber, except for 
 repairs of buildings and fences, or the purposes 
 of husbandry. Sup. Ct., 1875, Cook v. Doolittk, 
 5 Hun, 342. 
 
 26. — to easement. Where the owners of 
 adjoining lots liave, for 20 years, used a strip of 
 land taken one half from each lot for a way be- 
 tween them, a purchaser of one of such lots by 
 written contract will hold the easement so ac- 
 quired as against the owner of the other lot, who, 
 with knowledge of the contract, takes a deed of 
 the land used as a way. Sup. Ct., 1875, Town- 
 send V. Davis, 4 Hun, 297. 
 
 27. — to fixtures. Fixtures previously sev- 
 ered from the freehold do not pass by a con- 
 tract for the sale of the land ; nor will they pass 
 by a deed of the land unless specially mentioned. 
 Sup. Ct., 1866, O'Dougherty v. Felt, 65 Barb. 220. 
 
 28. — to sell. One who has an equitable title 
 to land by an agreement for its purchase, can 
 make a valid contract for its sale to another ; 
 and if he is able to procure a conveyance of the 
 fee to his vendee upon the maturity of his con- 
 tract, that will be a performance thereof. N. Y. 
 Supr. Ct., 1871, Friedman v. Dewes, 33 N. Y. 
 Supr. (1 J. & Sp.) 450. 
 
 29. 'The purchaser, in such a case, cannot re- 
 scind and recover back the purchase-money paid, 
 if the owners, upon the procurement of his im- 
 mediate vendor, are ready and offer at the spe- 
 cified time and place to convey to him a good 
 title. lb. 
 
 30. — to set off and specific performance. 
 Where J contracted to sell certain premises to 
 S, and he assigned his contract as to a portion 
 of them to A and gave him possession, receiving 
 part payment ; S failed to perform his contract 
 with J, surrendered it without the knowledge 
 of A and took a new contract for the land, 
 which he afterward assigned to C, who knew of 
 A's interest; A having meantime made another 
 payment, and holding a note against S for more 
 than the balance of tlie purchase-money, S being 
 then insolvent; and J conveyed to C, " saving 
 all rights, if any," under his contract witli S ; 
 — Held, in an action of ejectment by tlie devisee 
 of C against A tliat C took his assignment, 
 subject to the equities between A and S, and 
 acquired the title only as an incident to liis 
 claims as such assignee ; that S could not afiect 
 the rights of A without his consent by sur- 
 rendering the old and taking a new contract, 
 but that A ratified the change by his subsequent 
 payment ; and that he had the right to set off 
 the note of S against the unpaid purchase- 
 
728 
 
 VENDOR AND PURCHASER OF LANDS. 
 
 money, and to compel specific performance of 
 his contract. Com. App., 1874, Cavalli y. Allen, 
 67 N. Y. (12 Sick.) 508. 
 
 31. of assignees. K one of two persons 
 
 to whom a contract for the sale of land is as- 
 signed hy the purchaser, pays to the owner 
 the entire contract price, and takes a conveyance 
 of the whole land to himself, he is bound to con- 
 vey one half interest therein to his co-assignee, 
 on tender by him of one half the purchase- 
 money. Sup. Ct., 1875, Plympton v. Boehme, 4 
 Hun, 396. 
 
 32. WTiat title bound to accept. A ven- 
 dee under an executory contract for the pur- 
 chase of lands, is not bound to accept a title 
 resting upon adverse possession. Ct. App., 1872, 
 Hartley v. Jatnes, 50 N. Y. (6 Sick.) 38. 
 
 33. Where a vendee on examining the title of 
 his vendor, notified the latter that he would not 
 accept it and demanded the repayment of his 
 money, and the latter, instead of ascertaining 
 the objections and taking measures to, cure the 
 defects, simply held himself ready to convey 
 wliat title he had, requesting the former to ac- 
 cept it, and notifying him that he would be held 
 for any loss, — Held, that if the title to any part 
 was defective the vendee could maintain an ac- 
 tion to recover back the purchase-money paid 
 without first tendering the balance and demand- 
 ing a conveyance. lb. 
 
 34. One who purchases land, under a contract 
 for a conveyance upon payment of a certain 
 price per acre, subject to measurement, and 
 pays in full for the number of acres reported 
 by a surveyor employed by the parties, botli 
 parties supposing such report to be correct, is 
 not bound to receive a deed describing such 
 land according to tlie survey, and as containing 
 the number of acres reported, mm-e or less ; but 
 if, on a resurvey, the number of acres and de- 
 scription in the first survey are found incorrect, 
 he can recover back tlie money overpaid, and is. 
 entitled to a deed correctly describing the land 
 purchased, and it should state the true con- 
 sideration. Sup. Ct., 1871, George v. Tallman, 
 
 5 Lans. 392. 
 
 35. An agreement to convey "free from all 
 incumbrances " is not performed by the tender 
 of a deed without a release of dower by tlie 
 vendor's wife, tliat being an incumbrance, and 
 the non-tender of a release of dower is a breacli 
 of the contract for whicli an action will lie. N. 
 Y. Supr. Ct., 1872, Heimburg v. Ismay, 35 N. Y. 
 Supr. (3 J. & Sp.) 35. 
 
 36. A vendor who has contracted to convey 
 land free from incumbrances save two mort- 
 gages specified, cannot maintain an action on 
 sucli contract, upon refusal of the vendee to 
 complete tlie purcliase, if there is another mort- 
 gage on the premises. Com. App., 1874, Pierce 
 V. Tattle, 57 N. Y. (12 Sick.) 636. 
 
 37. A vendor, who has conveyed, with cove- 
 nants against incumbrances, land in New York 
 city against which an assessment for street im- 
 provements had previously been made and con- 
 firmed, is not liable on such covenants if the 
 assessment had not also been entered of record 
 so as to become a lien under the laws applicable 
 to tliat city ; nor will a subsequent agreement 
 that lie shall pay the assessment, but that sucli 
 payment shall not affect the question of his lia- 
 bility to pay the same, but if it shall be legally 
 determined that he is not liable the vendee sliall 
 repay liim, make him liable. N. Y. Supr. Ct., 
 1875, DePeysler v. Murphy, 39 N. Y. Supr. (7 J. 
 
 6 Sp.) 255. 
 
 38. Where a contract for the sale of lands. 
 
 contains restrictions respecting the use of the 
 premises by the vendee and the manner of the 
 use, the tender of a deed containing a covenant 
 to use in the manner indicated is a substantial 
 offer of performance, and the vendor is not 
 bound to tender a different one, unless the 
 vendee points out some specific, valid objection, 
 and offers to accept a deed with the clause in 
 such form as he can show would be more appro- 
 priate. Ct. App., 1872, Congregation Shaar Hash 
 Moin V. Halladay, 50 N. Y. (6 Sick.) 664. 
 
 39. Rescission for false representations. 
 A party who is induced to enter into a contract 
 for the purchase of lands by a material repre- 
 sentation on the part of the vendor, which proves 
 to be untrue, is justified in refusing to per- 
 form, although such representation was made, 
 not with fraudulent intent, but through an erro- 
 neous belief in its correctness, and it is not 
 necessary in such case, tliat he should have sus- 
 tained actual damage. ' Ct App., 1874, Phillips 
 V. Cmklin, 58 N. Y. (13 Sick.) 682. 
 
 40. — for fraud. Where a vendor of land, 
 in drawing the contract for the conveyance 
 thereof, fraudulently omits a part which he had 
 agreed to convey, and, on discovery of the fraud 
 by tlie purchaser, refuses to execute such a con- 
 tract as he ought to have done at tlie first, such 
 purchaser may rescind and recover back the 
 money paid. Sup. Ct., 1874, Moran v. Darrin, 1 
 Hun, 490 ; AfE'd, 60 N. Y. (15 Sick.) 637. 
 
 41. — for incomplete chain of title. A 
 purchaser in possession of land under a contract, 
 which provides that the vendor shall procure a 
 search of record showing title free of all incum- 
 brances by the day appointed for the delivery 
 of the deed, has a right to rescind the contract 
 upon production of the abstract, if it does not 
 show a complete chain of title down to the 
 vendor ; but, in order to do so, he must sur- 
 render possession. Sup. Ct., 1872, Coray v. 
 Mathewson, 44 How. 80 ; S. C, 7 Lans. 80. 
 
 42. If he retains possession without rescinding, 
 he cannot avail himself of the breach of cove- 
 nant as a defense to an action by the vendor for 
 specific performance, in case the latter can at the ' 
 trial make him good title ; nor can he success- 
 fully resist the payment of the purchase money, 
 lb. 
 
 43. — for incumbrances. "Valid sales of 
 land, under assessments by a municipal corpo- 
 ration, wliich appear on the record as unre- 
 deemed and uncancelled, are, in the absence of 
 proof of possession adverse to the title of the 
 purchaser under them, incumbrances upon the 
 title, notwithstanding such purchaser has never 
 taken actual possession, and more than 20 years 
 have elapsed since such sales ; so, also, are valid 
 assessments levied on the premises, which by 
 law became liens at tlieir date, although no sale 
 has been had under them ; and a purchaser is 
 entitled to liave such incumbrances discharged 
 before lie can be compelled to complete his pur- 
 cliase. Sup. Ct., 1874, Wood v. Squires, 1 Hun, 
 481 ; Reversed by Ct. App. 
 
 44. — for non-delivery of possession. 
 One who pays the purchase money, under a 
 parol contract for the sale of ^ dwelling house 
 on land of a third party, and the delivery of 
 possession and execution of a written con- 
 tract therefor, can maintain an action- against 
 his vendor to recover damages or the considera- 
 tion paid, if the latter does not put him in pos- 
 session, or execute a writing containing the 
 terms of such parol contract. Sup. Ct., 1871, 
 Hoag V. Owen, 60 Barb. 34; AlE'd, S. C, 57 N. 
 Y. (12 Sick.) 644 
 
VENUE— VERDICT. 
 
 729 
 
 45. Where the vendor executes and offers a 
 writing, which does not contain all tlie terms of 
 the parol contract, and the purchaser refuses to 
 accept it for that reason, it does not become a 
 conveyance of the dwelling, and he is not bound 
 to reconvey before bringing an action to recover 
 bacls the purchase money, but it is sufficient for 
 him to demand either tlie possession or a return 
 of the purchase money. lb. 
 
 46. — for suppression of facts. Where a 
 vendor sells a lot of land at auction, desci-ibing 
 it in his printed handbill as a parallelogram in 
 form, 25 by 100 feet, and making no mention of 
 the fact tliat it was encroached upon by a build- 
 ing on one side from 10 to 16 inches and had 
 been for 25 years, and the purchaser relied upon 
 such representation and paid the percentage re- 
 quired, but afterward refused to complete the 
 purchase, — Held, that the bid having been ob- 
 tained by a suppression of a material fact, the 
 vendor could not enforce the purchase ; that the 
 purchaser was entitled to both a title and pos- 
 session of the property and of the whole of it ; and 
 that the insertion of the words " more or less " 
 in the terms of the sale did not, under the circum- 
 stances, affect the rights of the parties. Ct. App., 
 1875, King v. Knapp, 59 N. Y. (14 Sick.) 462. 
 
 47. — for ■want of title. In every contract 
 for the sale and conveyance of land, the law 
 implies a warranty that the vendor has good 
 title, and, if the contract is for a conveyance in 
 fee, that he has the fee, unless such warranty is 
 expressly excluded by the terms of the con- 
 tract ; and if he has not such title, the vendee 
 may disaffirm the contract. Sup. Ct., 1863, Pen- 
 field V. Clark, 62 Barb. 584. 
 
 48. A contract by the vendor to give a deed 
 of conveyance in fee simple, with a covenant 
 against his own acts, is not satisfied by his giv- 
 ing a deed which conveys a fee incumbered by 
 tax liens, the implied covenant not being there- 
 by excluded ; and the purchaser is justified in 
 refusing to accept it and pay the purchase 
 money. lb. 
 
 49. Notice of rescission. Notice to one of 
 ,two joint purchasers who is in possession, de- 
 claring the contract void unless payment is made, 
 followed by re-entry, is sufficient to bar the 
 riglits of both. Ct. App., 1870, Eavena v. Pat- 
 terson, 43 N. Y. (4 Hand,) 218. 
 
 50. it will make no difference, that the inter- 
 est of the purchaser not notified is represented 
 by infant heirs. Inches of an infant, in respect 
 to conditions annexed to an estate, will bar his 
 rights as effectually as those of an adult. lb. 
 
 51. Rights of vendor. An unauthorized 
 contract between the commissioner of public 
 works of the city of New York and the owners 
 of land on which there is a lake, for the use of 
 the waters of such lake by the city, on condition 
 that the commissioner shall apply to the legis- 
 lature for the passage of an act authorizing the 
 purchase of the lake, or the taking of it by pro- 
 cess of law for just compensation, in pursuance 
 of which the city uses the waters, and the com- 
 missioner procures the passage of such act, but 
 the city, after a failure to agree as to the price 
 of the property, ceases to use the waters, and 
 takes no proceedings to acquire the property, 
 does not establish the relation of vendor and 
 purchaser between such owners and the city, 
 and the former cannot enforce performance 
 thereof by the city. Sup. Ct. Sp. T., 1874, Peo- 
 ple ex rel. Mahapac Manuf. Co. v. Van Noirt, 15 
 Abb. N. S. 242. . 
 
 52. Such a contract would not bind the suc- 
 cessor of the commissioner, unless ratified. lb. 
 
 53. Neither would such agreement, and the 
 statute subsequently passed, and the mere com- 
 mencement of proceeding under it to take the 
 property, at least until a report of commissioners 
 thereon, confer any vested rights on the owners, 
 lb. 
 
 54. — of devisee of vendor. A devisee of 
 lands previously contracted to be sold, takes the 
 title charged with a trust for the benefit of the 
 vendee named in the contract ; but, upon the 
 occurrence of a forfeiture by failure of the lat- 
 ter to perform, he becomes the absolute owner. 
 Sup. Ct., 1875, McCarty v. Myers, 5 Hun, 88. 
 
 65. If a forfeiture has been waived by the 
 vendor by receipt of money after the contract 
 day, and he desires that future payments shall 
 be promptly made, or that payments due and 
 unpaid shall be paid, he should notify the ven- 
 dee that prompt payment or payment by a day 
 designated will be exacted. lb. 
 
 56. Tender by vendor, effect of. If, upon 
 tender of a deed by the vendor to the purcha- 
 ser, and demand for payment of the balance of 
 the purchase money, in pursuance of the terms 
 of a written contract between them, the latter 
 refuses to accept the deed or pay the money 
 upon grounds which are not tenable, such as the 
 existence of unexpired leases on the property, 
 which fact was known to him at the time of 
 making the contract, he thereby puts it in the 
 power of the seller to put an end to the con- 
 tract ; and when that is done, the purchaser can 
 neither enforce specific performance nor recover 
 back the portion of purchase money he has 
 paid. Ct. App., 1874, Page v. McDonnell, 46 
 How. 299 ; S. C, 55 N. Y. (10 Sick.) 299. Aff'g 
 S. C, 46 How. 52. 
 
 57. Vendor's liability for representa- 
 tions. The presumption is that a contract for a 
 sale of lands is made on the premises, and in 
 the absence of proof of an express warranty or 
 of any fraud, the vendor will not be liable upon 
 a representation that the buildings are in good 
 repair. Ct. App., 1871, Harsha v. Reid, 45 N. 
 Y. (6 Hand,) 415. 
 
 58. Vendor's Uen. One who has agreed to 
 sell and convey a parcel of land at a specified 
 price, payable in part by the conveyance of an- 
 other parcel by the purchaser to himself, but 
 has never parted with the possession nor deliv- 
 ered a deed thereof, cannot maintain an action 
 against the other party to enforce a vendor's 
 lien upon the land agreed to be conveyed by 
 him, upon the failure of such party to convey 
 his land in exchange on account of his -inability 
 to induce his wife to release her dower, and to 
 have the land sold for the payment of the pur- 
 chase money, and for a personal judgment 
 against the purchaser for the balance. N. Y. C. 
 P., 1873, Stemberger v. Mc Govern, 4 Daly, 456 ; 
 Modified, S. C, l5 Abff. N. S. 257. 
 
 VENUE. 
 See Peacticb. 
 
 VERDICT. 
 
 See Pkaotice. 
 
730 
 
 VERIFICATION— WAIVER. 
 
 VERIFICATION. 
 See Fleadikg. 
 
 VESSEL. 
 See Ships and Seamen. 
 
 VILLAGES. 
 
 See Municipal coeporations. Also, chaps. 
 688, 870, Laws 1871 ; ch. 357, Laws 1872 ; ch. 92, 
 Laws 1873. 
 
 WAGER. 
 
 1. Recovery back. Where the owner of a 
 watch and chain was fraudulently induced by 
 another party to stake them on a wager, and 
 lost tlie wager through the fraud and deceit of 
 such party and his confederates, to whom they 
 were delivered by the stakeholder, — Held, that 
 in delivering them to the stakeholder, he did 
 not intend to part with his property in them, 
 and did not authorize the latter to deliver them 
 up unless the wager was fairly lost ; and that he 
 could recover them back from one to whom tlie 
 winner had sold them althougli an innocent pur- 
 chaser. Sup. Ct., 1874, Hodge v. Sexton, 1 Hun, 
 676. 
 
 WAIVER, 
 
 1. By acceptance of benefit. The owner 
 of lands taken for public streets may waive a 
 constitutional objection to the statutory prov- 
 isions for compensation, and accept the benefit 
 of and enforce them. Ct. App., 1871, Detmold 
 V. Diake, 46 N. Y. (1 Sick.) 318. 
 
 2. — of costs. Acceptance of costs paid in 
 pursuance of an order conditioned upon such 
 payment, is a waiver of the right to appeal from 
 such order. Ct. App., 1871, Marvin v. Marvin, 
 11 Abb. N. S. 97. - 
 
 3. — of goods. Acceptance of goods pur- 
 chased for a particular use, and their retention, 
 after the lapse of a reasonable time to examine 
 them, must be held an admission of due per- 
 formance by the seller, and a waiver on the part 
 of the buyer of all defects in their quality. N. 
 y. Supr. Ct., Sp. T., 1871, Charlotte, Columbia 
 S/- Augusta R. R. Co. v. JSssup, 44 How. 447. 
 
 4. — of purchase money. Acceptance of 
 . the purchase money under a contract of sale 
 
 from an assignee thereof, is a waiver of a pro- 
 vision therein that it shall be void if assigned 
 without the vendor's consent. Sup. Ct., 1875, 
 Olcott V. Heermans, 3 Hun, 431. 
 
 5. By ans'wering. A defendant does not 
 waive the irregularity of the appointment of a 
 guardian ad litem for an infant plaintiff who is 
 himself at the time an infant, by answering to 
 the merits, if he does so in ignorance of the ir- 
 regularity ; but he may afterward move to set 
 aside the'proceedings for such irregularity . Buff. 
 Supr. Ct., Sp. T., 1872, Wolford v. Oakley, 43 
 How. 118. 
 
 6. By appeal. An appeal taken from a sub- 
 
 ordinate to a higher ecclesiastical judicatory is 
 a waiver of all objection to the decree of the 
 latter for want of jurisdiction of the person of 
 the appellant. Sup. Ct., 1871, Connilt v. Reform- 
 ed Prot, Dutch Church of New Prospect, 4 Lans. 
 389. 
 
 7. By appearance. A general appearance 
 by the defendant in an action is a waiver of any 
 irregularity in the service of process. Brooklyn 
 City Ct., 1873, Wheeloch v. Lee, 15 Abb. N. S. 24. 
 
 8. If the court has jurisdiction of the subject 
 matter of an action, a voluntary appearance 
 therein by the defendant waives any defect in 
 the proceedings to bring him info court, unless 
 such appearance is a special one, for the purpose 
 of protesting against the jurisdiction, or moving 
 to vacate or set aside some order, judgment, 
 service of process, or other action of the court 
 or its officers to his prejudice, had or taken in 
 the absence of such jurisdiction. N. Y. C. P., 
 Sp. T., 1872, Allen v. Malcolm, 12 Abb.N. S. 335. 
 
 9. Where a justice of the peace issues a sum- 
 mons in an action of replevin, which is duly 
 served, and the defendant appears and joins is- 
 sue, and after two trials before juries without 
 obtaining a verdict, the parties submit the case 
 to the justice, all defects in the affidavit and 
 form of the bond must be deemed waived, 
 and will not be examined on appeal. Sup. Ct., 
 1871, AJford V. Stevens, 63 Barb. 29. 
 
 10. Tlie appearance of a defendant by attor- 
 ney in an action for a mechanic's lien, and upon 
 the trial of the same, is a waiver of defects in 
 the service of the summons, the same as in other 
 actions. Com. App. 1872, Mors v. Stanton, 51 
 N. Y. (6 Sick.) 649. 
 
 11. A voluntary appearance by a defendant 
 after service of summons and complaint on him 
 out of the territorial jurisdiction of the court, 
 without raising any objection to its jurisdiction 
 by demurrer or answer, waives such objection 
 and confers jurisdiction of his person. N. Y. 
 Supr. Ct., 1874, Spver v. Fisher, 37 N. Y. Supr. 
 (5 J. & Sp.) 93. 
 
 12. A person served with process for the com- 
 mencement of a suit against him while attend-, 
 ing court as a witness does not waive his exemp- 
 tion by procuring through attorneys, upon affi- 
 davit setting forth that fact, an order to show 
 cause why such service should not be set aside ; 
 even though such order also stays proceedings 
 in the action, and extends the defendant's time 
 for answering twenty days, and such attorneys 
 indorse their names on the papers as "attor- 
 neys for defendant." Sup. Ct. Sp. T., 1872, 
 Brett V. Brown, 13 Abb. N. S. 296. 
 
 18. A defendant will not be held to have waiv- 
 ed defects in the service of process by appear- 
 ance, unless he enters a general appearance, or 
 does some act amounting to an appearance, not 
 referring to the particular right or remedy to be 
 saved by a special appearance. lb. 
 
 14. If a corporation sued in the marine court 
 of New York, in an action over the subject mat- 
 ter of which that court has jurisdiction, appears 
 and contests the matter on the merits, it thereby 
 waives any objection to the jurisdiction of the 
 person. N. Y. C. P., 1872, Carpenter v. Central 
 Park, etc. R. R. Co., 11 Abb. N. S. 416 ; S. C, 4 
 Daly, 650. 
 
 16. A foreign corporation which appears and 
 pleads in bar to a suit against it in tliis State, 
 thereby waives proof of its incorporation, and 
 all objection on account of the non-residence of 
 the plaintiff. Sup. Ct., 1873, Root v. Great West. 
 Ry. Co., 65 Barb. 619. 
 
 16. A notice of a motion to dismiss an appeal 
 
WAIVER. 
 
 731 
 
 from a justice's court on the ground of want of 
 jurisdiction, signed generally " attorney for 
 plaintiff and respondent" is not such an appear- 
 ance as waives the objection to the jurisdiction. 
 Schuyler Co. Ct., 1869, Lake v. Kels, 11 Abb. N. 
 S. 87. 
 
 17. A voluntary appearance by a party at a 
 place different from that specified in a notice for 
 taking evidence, without objecting, is a waiver 
 of the right to complain of it on appeal. Sup. 
 Ct., 1874, Catlin v. Catlin, 2 Hun, 378. 
 
 18. Although a motion is irregularly noticed 
 to be heard before a judge at trial term, instead 
 of at the regular special term, an appearance 
 and argument of such motion, without objection, 
 will constitute a waiver of the irregularity. N. 
 Y. Supr. Ct., 1870, Mayer \. Apfel, 2 Sweeny, 
 
 19. An objection, properly taken, to the 
 change of venue of a civil action, is not waived 
 by a subsequent appearance on the trial. Ct. 
 App., 1870, Birmingkam Iron Foundry v. Hatfield, 
 43 N. Y. (4 Hand,) 224. 
 
 20. By assenting. The right of a party to 
 question the constitutionality of a statute affect- 
 ing his property may be waived, by his assent- 
 ing to it; and such assent may be evinced by 
 acts performed under it. Ct. App., 1873, Hous- 
 ton V. Wheeler, 52 N. Y. (7 Sick.) 641. 
 
 21. By assigning another reason. If a 
 purchaser of a specified quantity of goods to 
 arrive, knowing that only part of them have 
 arrived when tendered to him, makes no objec- 
 tion on that ground, but assigns another reason 
 for refusing to receive them, that would prob- 
 ably constitute a waiver of tlie delivery of the 
 whole, but it would not be so if he did not then 
 know that fact. Sup. Ct., 1873, Newberry v. Fur- 
 nival, 46 How. 139 ; AfE'd, S. C, 56 N. Y. (11 
 Sick.) 638. 
 
 22. An insurance company which bases its re- 
 fusal to pay a loss on a life policy on the ground 
 that the premiums were not paid, thereby waives 
 objection to the proof of death or the want of it. 
 Sup. Ct., 1874, Dean v. ^tna Life Ins. Co., 48 
 How. 36. 
 
 23. A warehouseman who bases his refusal to 
 deliver up goods in his charge upon some ground 
 other than the non-payment of the warehouse 
 charges, cannot avail himself of that objection on 
 trial. Com. App., 1872, Taylor v. Spader, 48 N. 
 Y. (3 Sick.) 664. 
 
 24. A party who refuses to accept a tender 
 for certain specific objections stated by him, 
 cannot, after an action has been commenceil, 
 raise other objections which might have been 
 readily obviated if raised at first. N. Y. Supr. 
 Ct., 1874, Stokes v. Eecknagel, 38 N. Y. Supr. 
 (6 J. & Sp.) 368. 
 
 25. By consent. Consent by the plaintiff 
 in an execution to its being retained by tlie 
 deputy sheriff after the return day, is a waiver 
 of such plaintiff's right of action against the 
 sheriff for its non-return. Sup. Ct., 1872, Mc- 
 Kinley v. Tucker, 6 Lans. 214 ; Overruling S. 
 C, 59 Barb. 93. 
 
 26. A party who has objected to the admission 
 of evidence, waives the objection if he after- 
 ward consents to the direction of a verdict by 
 the court, subject to' the opinion of the General 
 Term. Sup. Ct., 1875, Byrnes v. City of Cohoes, 
 5 Hun, 602. 
 
 27. Where an action for the foreclosure of a 
 mortgage, noticed for trial at a regular special 
 term, was by consent of parties tried at an ad- 
 journed Special Terra before a different judge ; 
 — Held, that they thereby waived all objection 
 
 to the regularity of the adjourned term. Ct. 
 App., 1874, White v. Coulter, 69N. Y. (14 Sick.) 
 629 ; Aff'g S. C, 1 Hun, 857. 
 
 28. Consent by defendant to the entry of a 
 judgment in foreclosure within four days after 
 the filing of the decision therein, and subse- 
 quently allowing the sale to be confirmed, is a 
 waiver of any irregularity in so entering the 
 judgment. S. C, 1 Hun, 357. 
 
 29. By delay. A delay of 20 years after the 
 entry of judgment by default, and the examina- 
 tion of the defendant several times on supple- 
 mentary proceedings without objection to the 
 regularity of the judgment, before making a 
 motion to set it aside on the ground that he was 
 an infant when the judgment was entered and 
 tliat no guardian ad litem had been appointed 
 for him in tlie action, is a waiver of the irregu- 
 larity. N. Y. Supr. Ct., Sp. T., 1873, Harvard v. 
 Dusenbury, 44 How. 423. 
 
 30. A delay in applying for an allowance in 
 addition to other costs, for four years after tlie 
 bill of costs has been taxed and the subsequent 
 settlement thereof, is a waiver of tlie right to 
 apply therefor. Sup. Ct., 1874, Board of 
 Commissioners of Pilots v. Spofford, 3 Hun, 57. 
 
 31. A condition in a contract of sale, under 
 which the property is delivered, that the title 
 sliall remain in tlie vendor until full payment of 
 the purcliase money, will be deemed waived by 
 tlie vendor's neglect, for a considerable time af- 
 ter default in payment, to take measures to re- 
 possess the property, or by his commencing an 
 action for tlie purchase money. Sup. Ct., 1875, 
 Wright V. Pierce, 4 Hun, 351. 
 
 32. A party who deposits money at an office 
 occupied by asavings bank, and also by its sec- 
 retary as a private banker, and receives there- 
 for certificates of such private banker, waives 
 any claim against the savings bank as his depos- 
 itary if he delays disaffirming the contract for 
 six years, and claims and receives a dividend 
 f;'om the estate of the secretary after he has be- 
 come insolvent. Sup. Ct., 1875, Shields v. Ni- 
 agara Savings Bank, 3 Hun, 477. 
 
 38. So also, if he accepts credits in a bank 
 book, clearly marked as issued by such secretary 
 as a private banker, and draws on hlin as such, 
 and does not attempt to disaffirm the transaction 
 for four or five years after the last deposit. Sup. 
 Ct., 1875, Rich V. Niagara Savings Bank, 3 Hun, 
 481. 
 
 34. By directing change. Conditions pre- 
 cedent in a contract for the purchase of goods 
 to arrive, that they shall be delivered alongside 
 duty paid, are waived by the purchaser's direct- 
 ing them to be put in bond so as to givehim the 
 advantage of a reduction in duties tliereafter to 
 take effect. N. Y. Supr. Ct., 1874, Stokes v. 
 Recknagel, 88 N. Supr. (6 J. & Sp.) 368. 
 
 35. By directing delay. Where by the 
 terms of a bill of hiding tlie consignees are to 
 have three full working days to discliarge cargo 
 after the arrival of tlie boat at their dock, and 
 for subsequent delay to pay demurrage, a direc- 
 tion by them to the carrier to lie still wliere lie 
 is until called for, after he has notified tliem of 
 his arrival near the place of unloading, is a waiver 
 of the necessity of arrival at the dock before a 
 claim for demurrage could arise. Sup. Ct., 1874, 
 Wiles V. N. Y. Cent. ^ Hud. Riv. R. R. Co., 2 
 Hun, 109. 
 
 36. By disabling for performance. One 
 who disables himself from performing a contract 
 to sell and deliver goods, by selling them to a 
 third party before default in the purcliaser, 
 thereby waives the performance of acts by the 
 
732 
 
 WAIVER. 
 
 latter, which he would otherwise be bound to 
 perform as a condition to his enforcing the con- 
 tract. Ct. App., 1873, Hawley v. Keeler, 53 N. 
 Y. (8 Siclc.) 114. 
 
 37. By failing to plead. A defect of par- 
 ties defendant is to be deemed waired, if not 
 taken eitlier by demurrer or by answer. N. T. 
 Supr. Ct., ISlURhodes v. Dyimck, 33 N. Y. Supr. 
 (IJ. &Sp.) 141. 
 
 38. An objection to the joinder of maker and 
 guarantor of a note in one action, is waived if 
 not taken by answer or demurrer and a several 
 judgment raaj' be rendered against either. Com. 
 App., 1872, Hier v. Staples, 51 N. Y. (6 Sick.) 
 136. 
 
 39. Where a contract of sale is alleged in the 
 complaint and admitted by the answer, and the 
 defendant does not plead the statute of frauds 
 or insist upon it on the trial, he will be deemed 
 to have waived the benefit of it. Ct. App., 1871, 
 Duffy V. O'Donovan, 46 N. Y. (1 Sick.) 228. 
 
 40. Although a bond given to release a vessel 
 from a void attacliment proceeding, is in invitum 
 and therefore void, a party who fails to raise 
 that objection on the trial or by plea will be 
 deemed to have waived it, and it will not be 
 considered on appeal. Com. App., 1871, Vose v. 
 Cockcroft, 44 N. Y. (5 Hand,) 416. 
 
 41. But where tlie objection is taken at Gen- 
 eral Terra and tlie defect appears upon the face 
 of the complaint, it will nut be deemed to be 
 waived ; but the court lias power to reverse for 
 the error so appearing. Ct. App., 1871, Brook- 
 man V. Hamill, 46 N. Y. (1 Sick.) 636. 
 
 42. By not appealing. Even if an appeal 
 would lie from the action of liighway commis- 
 sioners in making out a survey and description 
 of a road many years after the laying of the 
 same, the owner of the land tlirough which it 
 passes is not precluded, by an omission to appeal, 
 from contesting the validity of the highway 
 when set up as a justification in an action of 
 trespass. Ct. App., 1874, Miller v. Brown, 56 
 N. Y. (11 Sick.) 383. 
 
 43. By not asking submission to jury. 
 In an action for injuries caused by tl.e defend- 
 ants' negligence, wliere the evidence clearly 
 establislies such negligence on his part, if he 
 fails to request in terms that the question be 
 submitted to the jury he thereby waives his 
 right in tliat respect. N. Y. Supr. Ct., 1873, 
 Myers v. Dixon, 45 How 48 ; S. C, 35 N. Y. 
 Supr. (3 J. & Sp.) 390. See Schroffv. Bauer, 42 
 How. 348. 
 
 44. A plaintiS does not, by opposing a motion 
 for a non-suit. Waive his right to have the ease 
 submitted to tlie jury without making a partic- 
 ular request therefor; but a defendant by 
 moving for a non-suit does assume that the case 
 is a proper one for disposal by the court, and 
 tiiereby waive its submission to the jury with- 
 out specific request on his part, in case the non- 
 suit is denied. lb. 
 
 45. By not demurring. An objection for 
 non-joinder of necessary parties, where tlie 
 defect appears upon the face of the complaint, 
 will be deemed waived unless taken by demur- 
 rer. Com. App., 1872, Potter v. Ellice, 48 N. Y. 
 (3 Sick.) 321. S. P., Cunningham v. White, 45 
 How. 486. 
 
 46. Where a cause of action to recover money 
 which is not specifically described, is joined in 
 the same count with a claim for other property 
 properly described, an omission to demur will 
 not waive tlie objection to the sufficiency of the 
 complaint or the form of action as regards the 
 money claimed, or authorize a recovery in the 
 
 action as for money had and received. Com. 
 App., 1871, Sager v. Blain, 44 N. Y. (5 Hand,) 445. 
 
 47. By not excepting. A defendant wlio 
 neither excepts to a charge that a proposition of 
 law, stated by the court, is the general rule, but 
 that there is an exception to it, leaving it to the 
 jury to determine whether tlie case comes within 
 the exception, nor requests tlie court to charge 
 otherwise, must be held to have acquiesced in 
 the cliarge as given. N. Y. Supr. Ct., 1872, 
 Rowe V. Stevens, 44 How. 10 ; S. C, 12 Abb. N. 
 S. 389 ; 34 N. Y. Supr. {2 J. & Sp.) 436. 
 
 48. By not objecting. A defendant who 
 does not object to the admission of incompetent 
 evidence against him, at any time during tlie 
 trial, thereby waives such objection. Sup. Ct., 
 1874, Dean v. JEtna Life Ins. Co., 48 How. 36. 
 
 49. A failure to object to the reception of 
 evidence which has a bearing upon issues not 
 involved in the pleadings, is not a waiver of the 
 riglit to object to a consideration of such issues, 
 so long as the whole of such evidence is com- 
 petent as well upon the issues joined in the case. 
 Com. App., 1874, Williams \. Mechanics and 
 Traders Fire Ins. Co., 54 N. Y. (9 Sick.) 677. 
 
 50. Where the complaint, in an action ac- 
 knowledges the sale of a pledge and the applica- 
 tion of the proceeds to the debt sued on, and 
 the answer admits the sale, but alleges that it 
 was tortious, if the defendant fails to object on 
 tlie trial that the plaintiff is precluded by the 
 pleadings from showing tliat there was no sale, 
 he waives that right. Ct. App., 1873, Bryan v. 
 Baldwin, 52 N. Y. (7 Sick.) 232. 
 
 61. If no objection is taken at the time to a 
 referee's absenting himself during the taking of 
 evidence in a case tried before him, but the par- 
 ties go on with the examination and finally sub- 
 mit all the evidence to him for his decision, the 
 irregularity must be deemed waived. N. Y. Supr. 
 Ct., 1871, Metcalfy. Baker, 11 Abb. N. S. 431 ; 
 S. C, 34 N. Y. Supr. (2 J. & Sp.) 10. 
 
 52. The failure of the defendant's counsel, in 
 a criminal action, to object to the giving of addi- 
 tional instructions by the court, in his presence 
 but in the absence of his client, to a jury who 
 had once retired, will not waive the irregularity ; 
 nor would the express consent of the defendant. 
 Ct. App., 1870, Maurer v. People, 43 N. Y. (4 
 Hand,) 1. 
 
 63. Parties who voluntarily submit a contro- 
 versy to arbitrators, appear before them, make 
 their statements, and discuss their case and tlie 
 whole controversy, without interposing any ob- 
 jection to the proceedings, thereby waive such 
 irregularities as the failure of the arbitrators to 
 be sworn, or the reception of illegal evidence. 
 Sup. Ct., 1874, Sonneborn v. Lavarello, 2 Hun, 
 201. 
 
 54. Defendants in the County Court who 
 appear, join issue and go to trial, without object- 
 ing to the jurisdiction by demurrer or answer, 
 on the ground that the complaint does not allege 
 that they are residents of the county, cannot 
 take that objection for the first time after judg- 
 ment. Sup. Ct., 1874, Burling v. Freeman, 2 Hun, 
 661. 
 
 55. Parties to an equitable action who make 
 no objections to its being tried at the circuit be- 
 fore the court and jury, and to the submission 
 to the jury 6f specific questions of fact to be 
 passed upon by them, waive tlie right to a trial 
 by the court alone. Sup. Ct. Sp. T., 1872, Smith 
 v. Osborn, 46 How. 351. 
 
 56. A municipal corporation, which does not 
 object that an act of the legislature takes from 
 it a right which it previously possessed under 
 
WAIVER. 
 
 733 
 
 contract with a railroad company, but by ita 
 officers recognizes and takes part in executing 
 such act, thereby waives its claim to the right 
 conferred by such contract. Sup. Ct. Sp. T., 
 1874, People exrel. N. Y. #• H. R. R. Co. v. Have- 
 meyer, 3 Hun, 97. 
 
 57. A purchaser of property under an execu- 
 tory contract of sale, who makes no objections 
 to the mode in which tender thereof is made, or 
 to the quantity tendered, but declines to accept 
 because unable to pay, or asks an extension of 
 time, thereby waives all objections to such ten- 
 der. Ct. App., 1873, Hayden v. Demets, 63 N. Y. 
 (8 Sick.) 4-26 ; Aff'g S. C, 34 N. Y. Supr. (2 J. & 
 Sp.) 344. 
 
 58. By payment. Payment of some of the 
 instalments contracted to be paid for building 
 a house, without the production of tlie certifi- 
 cates of the architect by whom the work was to 
 be approved before paid for, does not operate as 
 a waiver of the production of his final certificate 
 of the completion of the work to his satisfac- 
 tion. N. Y. C. P., 1872, Bai-ton v. Herman, 11 
 Abb. N. S. 378. 
 
 59. Repayment of the amount received from 
 the drawee on a forged check, is a waiver of the 
 rule that tlie drawee is responsible for his own 
 mistake as to the genuineness of the signature of 
 the drawer ; and such repayment after a delay of 
 several days longer than is allowed by the rules 
 of a clearing-liouse through wliioh the business 
 is done, is a waiver of the delay. Sup. Ct., 1872, 
 Stuyvesant Bank v. National Mech. Banking Asso., 
 7 Lans. 197. 
 
 60. By receiving rent. If a landlord re- 
 ceives from Ills tenant any part of the rent 
 accrued subsequent to a breach, he thereby 
 waives the forfeiture and re-establishes the ten- 
 ancy ; but if so received after the lease has been 
 avoided by a judgment in summary proceedings, 
 it may not have the effect to restore the lease, 
 yet it would create a tenancy by parol. Sup. Ct. 
 Sp. T., 1873, Crawford v. Waters, 46 How. 210. 
 
 61. By refusal to render account. A 
 factor who refuses to surrender goods of his 
 principal in his hands, claiming a lien for charges 
 and advances, and at tlie same time refuses to 
 make and render a statement of such charges and 
 advances, upon the principal's offer to pay the 
 same, thereby waives such lien. Sup. Ct., 1872, 
 Termlli'ger v. Beats, 6 Lans. 403. 
 
 62. By willingness to perform. Present 
 willingness to perform a contract by one party, 
 after the other has forfeited his right to enforce 
 it, is not a waiver of his rights, unless the other 
 party acts upon the offer presently. Sup. Ct., 
 1874, Codding v. Wamsley, 1 Hun, 585 ; Aff'd, 60 
 N. Y. (15 Sick.) 644. 
 
 63. Of appeal. Where an interlocutory de- 
 cree is rendered in an action directing a reference 
 and an accounting, a party does not, by appear- 
 ing before the referee, and presenting his claims 
 and contesting others, waive his right to move 
 for a new trial or to appeal from an order deny- 
 ing one. Ct. App., 1872, Barker v. White, 58 N. 
 Y. (13 Sick.) 204. 
 
 64. A plaintiff who has appealed from an order 
 setting aside a judgment in his favor, does not 
 waive sucli appeal by appearing at General 
 Term and resisting the reversal of an order in 
 the same case sustaining his demurrer to defend- 
 ant's answer, from which the latter had appeal- 
 ed. Ct. App., 1871, Pistor v. Brundrett, 42 How. 
 5 ; S. C. sub nom, Pistar v. Hatfield, 46 N. Y. (1 
 Sick.) 249. 
 
 65. Proceeding to trial before a referee ope- 
 rates as a waiver of tlie riglit to appeal from the 
 
 order of reference. N. Y. Supr. Ct., 1875, Porter 
 V. Parmly, 38 N. Y. Supr. (6 J. & Sp.) 490. 
 
 66. A land-owner does not waive his right to 
 appeal from an order in proceedings by a rail- 
 road company to acquire lands, by appearing 
 and opposing the confirmation of the report of 
 the commissioners, where he does not accept 
 the compensation awarded him, or any other 
 benefit from the proceedings. Ct. App., 1875, 
 In matter ofN. Y. Cent. ^ Had. Riv. R. R. Co., 
 60 N. Y. (15 Sick.) 112. 
 
 67. It is only wlien a party accepts some bene- 
 fit under an order that he waives his right to 
 appeal from it. lb. 
 
 68. Collecting a judgment by execution is a 
 waiver of the riglit of the successful party to 
 prosecute an appeal previously taken by him. 
 Ct. App., 1871, Knapp v. Brown, 11 Abb. N. S. 
 118; S. C, 45 N. Y. (6 Hand,) 207. 
 
 69. Proposing amendments to a case made by 
 the plaintiff after he has collected by execution 
 the judgment from which he has taken an ap- 
 peal, is not a waiver of the right of the defend- 
 ant to move for a dismissal of the appeal, on the 
 ground of such collection. lb. 
 
 70. Of condition as to time. A condition 
 in an insurance policy that the insured shall, 
 within 10 days after a loss, deliver a particular 
 account thereof to the company signed by him 
 and verified, may be waived by language of the 
 general agent of the company, used to the in- 
 sured, within the 10 days, calculated to induce, 
 him to postpone the preparation and forwarding 
 of such proof until after 10 days have expired. 
 Sup. Ct., 1871, Dohn V. Farmers J. S. Ins. Co., 
 5 Lans. 275. 
 
 71. Such condition may be waived after the 
 10 days, by assigning other grounds than the 
 failure to furnish proofs within the required 
 time, for rejecting the claim of the insured. lb. 
 
 72. Of condition in policy. A condition 
 in a written instrument, such as one in a policy 
 of insurance that notice of other insurance must 
 be given, and an indorsement made on the pol- 
 icy, or one that no condition therein can be 
 waived, except in writing signed by the secre- 
 tary, may be waived by parol ; and such waiver 
 may be proved by parol. Ct. App., 1868, Car- 
 roll V. Charter Oak Ins. Co., 10 Abb. N. S. 166. 
 
 73. Acts of the officers of an insurance com- 
 pany in examining the facts and consenting to 
 delay on account of the absence of the owner, 
 and in keeping the proofs of loss some days, 
 though served after the time had expired for 
 serving them, and then determining to contest 
 the claim on other grounds, are a waiver of the 
 condition of the policy as to timely notice of 
 loss. Sup. Ct., 1869, Owen v. Farmers Joint 
 Stock Ins. Co., 10 Abb. N. S. 166, n; S. C, 57 
 Barb. 518. 
 
 74. If the general agent of an insurance com- 
 pany, having actual notice of other insurance 
 on the same property, informs the insured that 
 his insurance in such agent's company is good, he 
 thereby waives the condition in the policy issued 
 by that company, that other insurances must be 
 noticed and indorsed thereon. So, also, if he 
 consents to an assignment of the policy, or re- 
 news it. Sup. Ct., 1872, Pechner v. Phoenix Ins. 
 Co., 6 Lans. 411. 
 
 75. Of condition precedent. Unless there 
 is some consideration for a waiver, or some 
 valid modification of the agreement between the 
 parties which contains the condition, it seems 
 there can be no waiver of a condition precedent 
 except there be in the case an element of es- 
 toppel. Com. App., 1874, Underwood v. Farmers 
 
734 
 
 WAIVER. 
 
 Joint Stock Ins. Co., 48 How. 367 ; S. C, 57 N. 
 T. (12 Sick.) 500. 
 
 76. Of damages. Permitting the perform- 
 ance of a contract after the time therefor haa 
 expired, does not amount to a waiver of dam- 
 ages for tlie brtach. Ct. App., 1873, Ruf t. 
 Einaldo, 55 N. Y. (18 Siclt.) 664. 
 
 77. Payments made upon a contract after 
 failure to perform within the time limited, do 
 not constitute a waiver of damages for the non- 
 performance. N. Y. C. P., 1871, Shute v. Ham- 
 ilton, 3 Daly, 462. 
 
 78. An acceptance, after repair, of an engine 
 defective when delivered, is not a waiver of the 
 damages resulting from the original defect. 
 Ct. App., 1871, Cassidg v. Le Fevre, 45 N. Y. (6 
 Hand.) 562 ; Overruling as to this point, 8. C, 
 57 Barb. 318. 
 
 79. Of defect in title. The taking and re- 
 taining possession of land, by a purchaser, with- 
 out rescinding, after knowledge of a defect in the 
 vendor's title, does not amount to a waiver of the 
 right to object on account of it. Sup. Ct., 1872, 
 Coray v. Mathewsm, 44 How. 80 : S. C, 7 Lans. 
 80. 
 
 80. Where the defect is such as necessarily 
 to lessen the value of the property, it will not be 
 held waived except upon the most conclusive 
 evidence that the purchaser intended to waive 
 it. lb. 
 
 81. Of forfeiture^ Where a contractor for 
 the erection of buildings on the land of another 
 extends the time for performance of part of the 
 work by his sub-contractors, and the employer, 
 knowing the facts, either assents to or permits 
 the prosecution of the work after the expiration 
 of the contract time, he thereby waives any 
 forfeiture for its non-performance in due time. 
 Ct. App., 1875, Gallagher v. Nichols, 60 N. Y. 
 (15 Sick.) 438. 
 
 82. The receipt by a mortgagee of chattels of 
 payment of his debt after forfeiture is a waiver 
 of the forfeiture, and the property revests in the 
 mortgagor. Ct. App., 1872, West v. Crary, 47 
 N. Y. (2 Sick.) 423. 
 
 83. A landlord, who with knowledge that his 
 lease has become forfeited by breach of the 
 covenant against underletting, receives rent 
 subsequently accruing, thereby waives the for- 
 feiture ; and he cannot afterward insist upon it 
 by reason of the continuance of the occupancy 
 under the sub-letting after the time to which 
 rent was paid. Ct. App., 1871, Ireland v. Nichols, 
 46 N. Y. (1 Sick.) 413; Aff'g S. C, 2 Sweeny, 
 289. 
 
 84. Of lien. A lien upon chattels for work 
 done on them may be waived by any special 
 agreement giving credit, or by the lienor's tak- 
 ing security for the amount due him. N. Y. 
 Supr. Ct., 1873, Murphy v. Lippe, 35 N. Y. 
 Supr. (3 J. & Sp.) 542. 
 
 85. Of place and mode of trial. In an ac- 
 tion for an injunction, affecting real property, 
 and for damages, an objection that the trial 
 should be in another county and by jury, is 
 waived, if not asserted on the trial. Ct. App., 
 1871, West Point Iron Co. v. Beymert, 46 N. Y. 
 (6 Hand,) 703. 
 
 86. Of privilege. If a person who is attend- 
 ing as a witness in a county otlier than that in 
 which he resides, and is there arrested in a civil 
 action during the trial or at its close and as he 
 is about to return home, fails to claim his per- 
 sonal privilege and demand his discharge from 
 the officer who arrested liim or the judge who 
 issued tlie order, but gives bail, and afterwards 
 serves a notice of appearance and obtains an 
 
 extension of time to answer, and waits 22 days 
 after the arrest before moving for his discharge 
 from arrest, he must be held to have waived his 
 privilege and acquiesced in the arrest. Sup. Ct. 
 Sp. T., 1872, Farmer v. Bobbins, 47 How. 415. 
 
 87. A party arrested liere in a civil action, 
 after he has been brought to this country under 
 extradition proceedings fraudulently instituted 
 by some of his creditors, does not waive his 
 right to exemption from such arrest by giving 
 bail. Sup. Ct., 1874, Bacharach v. Lagrave, 47 
 How. 385; S. C, 1 Hun, 689. 
 
 88. Of proof of demand. A stipulation at 
 the trial between the parties to an action for 
 the conversion of grain, that there had been a 
 demand and refusal to deliver, and that defend- 
 ants claimed a right to hold the grain, suffi- 
 ciently shows a conversion, and is a waiver of 
 proof of plaintiff's claim at the time of making 
 the demand. Ct. App., 1875, Mechs. and Tr. 
 Bank of Buff. v. Far. and Mechs. Nat. Bank of 
 Buff., 60 N. Y. (15 Sick.) 40. 
 
 89. Of provisions of contract. A party to 
 a written contract may waive any of its provis- 
 ions in his favor by parol, ani tliis he may do 
 by a new and independent contract for work or 
 materials, other and different from those speci- 
 fied in the original contract N. Y. Supr. Ct., . 
 1875, American Corrugated Iron Co. v. Eisner, 39 
 N. Y. Supr. (7 J. & Sp.) 200. 
 
 90. Thus, a provision in a building contract 
 that nothing shall be allowed for as extra, un- 
 less ordered by the owner in writing, will be 
 waived by his ordering such work verbally and 
 having it done under his own supervision ; and 
 a provision for an arbitration as to the value of 
 work is waived if neither party demands an ar- 
 bitration, lb. - 
 
 91. A party to whom another is bound by 
 sealed contract to consign all the goods manu- 
 factured by him, may waive such obligation by 
 oral permission to the latter to consign to other 
 parties ; and he cannot be allowed to recall 
 such permission after it has been acted on, or 
 to sue for a breach of the original contract. 
 Com. App., 1872, Hadden v. Dimick, 13 Abb. N. 
 S. 135 ; S. C, 48 N. Y. (3 Sick.) 661 ; Rev'g S. 
 C, 31 How. 196. 
 
 92. Of right to amend. The right of a 
 party to examine the adverse party as a witness 
 after issue joined and before trial is absolute, un- 
 der the rules regulating it, and it is not incon- 
 sistent witli the right to amend his pleading of 
 course within 20 days after issue joined, and 
 proceeding to take such examination is not a 
 waiver of the latter right. N. Y. Supr. Ct., 
 1874, Sfilwell V. Kelly, 37 N. Y. Supr. (5 J. & 
 Sp.) 417. 
 
 93. Of security. The consent of tlie re- 
 spondents upon appeal from the surrogate of 
 the county of New York to an order for tlie de- 
 posit of money by the appellants to an amount 
 previously allowed to the administrators for 
 counsel tees on their final accounting, is not a 
 waiver of the bond required by law to be given 
 on taking the appeal. Ct. App., 1872, Spotts v. 
 Dumesnil, 12 Abb. N. S. 117. 
 
 94. Of statutory provision. A party of 
 full age and acting sui generis, can waive a stat- 
 utory or even a constitutional provision in his 
 favor, where it affects simply his property or 
 alienable rights and does not involve considera- 
 tions of public policj'. Ct. App., 1871, Phyfe v. 
 Eimer, 45 N. Y. (6 Hand,) 102. 
 
 95. The provision of the act of 1818, sec. 181, 
 that, wliere part of a lot in New York city is 
 taken for municipal improvements, all contracts 
 
WAR— WAREHOUSEMAN. 
 
 735 
 
 respecting it sliall be discharged, the rent shall 
 be apportioned, and only so much as is equit- 
 ably payable for the residue shall be demanded 
 or received, is for the benefit of the tenant and 
 may be waived by him; and if he expressly 
 agrees to pay the whole rent until actual evic- 
 tion, he will be bound thereby. lb. 
 
 96. Of strict performance. Where a con- 
 tractor abandons the work before full perform- 
 ance of a portion which by the terms of his con- 
 tract is a condition precedent to his right to a 
 certain payment, the owner cannot be held to 
 have waived strict performance, upon proof 
 that when called on by the assignee of such 
 paymeqt, at or about the time he had by writ- 
 ten notice to the contractor insisted on full per- 
 formance, said that he had no money but ex- 
 pected some, and would call down and see the 
 assignee and settle with him; and of subse- 
 quent promises to pay, coupled with complaints 
 of tine non-fulfilment of the contract. N. Y. 
 Supr. Ct., 1872, Crane v. Knuhel, 43 How. 889 ; 
 S. C, 34 N. T. Supr. (2 J. & Sp.) 443. 
 
 97. Of time of performance. Where a 
 purchaser of lands, a few hours before the time 
 fixed for payment by his contract, offered the 
 vendor's agent a check for the amount due, 
 wliich was refused because not certified, and the 
 purchaser with the assent of the agent left to 
 procure it to be certified, the latter remarking 
 that he should be in his office all day, — Held, 
 that performance at the precise time was waived, 
 and an offer of the certified check a few hours 
 later was sufficient. Ct. App., 1871, Duffy v. 
 O'Donovan, 46 N. Y. (1 Sick.) 223. 
 
 98. Of trial by jury. A defendant who 
 proceeds to trial before the court without claim- 
 ing a right to a trial by jury, in an action 
 wlierein the complaint sets forth a cause of ac- 
 tion of equitable jurisdiction and demands 
 equitable relief, but also contains allegations of 
 fact sufficient to constitute a cause of action at 
 law, thereby waives the right as to the legal as 
 well as the equitable cause of action. N. Y. 
 Supr. Ct., 1874, Black y. White, 37 N. Y. Supr. 
 (5 J. & Sp.) 320. 
 
 WAR. 
 
 1. Effect on commercial intercourse. In 
 the late rebellion there existed between the 
 government of the United States and the Con- 
 federate States, a state of civil war, in the sense 
 of international law, which brought with it the 
 common incidents of war, and arrested all com- 
 mercial intercourse and communication between 
 the citizens of those States respectively. Sup. 
 Ct., 1870, Harden v. Boi/ce, 69 Barb. 426. 
 
 2. — on contracts. A bill of exchange, 
 drawn upon an enemy during war, is void. Ct. 
 App., 1870, Woods V. Wilder, 43 N. Y. (4 Hand,) 
 164. 
 
 3. By the act of Congress of July 13, 1861, 
 and the proclamation of the President of Au- 
 gust 16, following, a state of war was recognized 
 between the government and the States de- 
 scribed therein ; and all contracts made be- 
 tween citizens of the territories of the respec- 
 tive belligerents after the last named date were 
 void. lb. 
 
 4. All commercial partnerships existing be- 
 tween subjects of the two parties prior to the 
 war, were ipso facto dissolved. lb. 
 
 6. Only such commercial contracts made prior 
 to the breaking out of a war as give aid and 
 
 comfort to the enemy, or such as are forbidden 
 by or are against the policy of the government, 
 are dissolved by such war. A policy of life in- 
 surance is not affected thereby, unless it insures 
 against death while the assured is in the hostile 
 military service. Ct. App., 1872, Sands v. New 
 York Life Ins. Co., 60 N. Y. (5 Sick.) 626. 
 
 6. A contract of life insurance with provis- 
 ion for the payment of annual premiums during 
 the life of the insured, is not avoided by the 
 occurrence of war between the countries of the 
 insured and insurer, but the remedy only is sus- 
 pended during hostilities, and revives upon the 
 close of the war. Ct. App., 1872, Cohen v. New 
 York Mat. L. Ins. Co., 50 N. Y. (6 Sick.) 610. 
 
 7. The existence of war would, however, 
 render the transmission of moneys for the annual 
 premiums unlawful, and a tender thereof prompt- 
 ly upon the return of peace will be sufficient to 
 continue the policy in force, notwithstanding 
 the condition of the policy avoiding it for non- 
 payment of such premiums. lb. 
 
 8. The relation of the members of a mutual 
 company is not, in any proper or legal sense, a 
 partnership, and is not as siich, dissolved by 
 war. lb 
 
 WAREHOUSEMAN. 
 
 1. Duty. Warehousemen who are not noti- 
 fied of the rights of sellers of grain stored with 
 them are not bound to protect such riglits, but 
 may properly deliver warehouse receipts tliere- 
 for to the buyer by whose direction it is stored 
 with them. Sup. Ct., 1873, Hoyt v. Baker, 16 
 Abb. N. S. 405. 
 
 2. Inability. Warehousemen who receive 
 a cargo of grain from a carrier, and issue to him 
 their receipt therefor, which the carrier indorses 
 to the person named in the bill of lading as con- 
 signee's agent, and afterward deliver such grain 
 on the order of such agent, without notice of any 
 pledge thereof, are not liable to the consignee or 
 his pledgee of the bill of lading, as for a conver- 
 sion. Buff. Supr. Ct., 1873, Hazard v. Abel, 15 
 Abb. N. S. 413. 
 
 3. A warehouseman, with whom a carrier 
 stores grain on which the freight is unpaid, tak- 
 ing a receipt in his own name for the purpose 
 of securing his lien, is liable to such carrier, as 
 for a conversion, for the amount of the lien, if 
 he delivers such grain to the consignee without 
 the knowledge or consent of the carrier. Sup. 
 Ct., 1876, Compton v. Shaw, 1 Hun, 441. 
 
 4. The liability of a warehouseman is not for 
 negligence, but for not returning the prbperty 
 which is the subject of the bailment. If he ne- 
 glects to return it on demand he is liable, unless 
 he can account for its loss by showing that it 
 has been taken or is gone from his possession 
 without any fault on his part N. Y. Supr. Ct., 
 1873, Coleman v. Livingston, 86 N. Y. Supr. (4 J. & 
 Sp.) 32. 
 
 6. He is required to give to property confided 
 to his keeping the care which a person of or- 
 dinary prudence would give to his own property. 
 Nothing more. lb. 
 
 6. Neither the act of Congress of March 28, 
 1854, relating to private bonded warehouses, nor 
 the regulations of the Secretary of the Treas- 
 ury in relation thereto, attempt to confer upon 
 custom house officers any supervision or control 
 over the hatches or hatchways therein ; but they 
 are subject to the sole control and management 
 of the warehouseman who stores the goods and 
 
736 
 
 WARRANTY— WATERCOURSE. 
 
 receives pay therefor, who is therefore respon- 
 sible for any injuries caused by negligence in 
 respect to such hatches and liatchways. N. Y. 
 Supr. Ct. 1873, Luddington v. Miller, 36 N. Y. 
 Supr. (4 J. & Sp.) 1. 
 
 7. Receipt of. A warehouse receipt for 
 property, some of which is not in store at the 
 time the receipt is issued, though it is subse- 
 quently received by the warehouseman, is good 
 in the hands of one to whom it is transferred as 
 security for advances, made without notice of 
 any fact calculated to awalsen suspicions that 
 the property was not in store when it was issued 
 or had been procured by fraud of the person 
 to whom the advances were made, to the extent 
 of the property in store at the time tlie re- 
 ceipt was issued. Sup. Ct., 1874, McCombie v. 
 Spader, 1 Hun, 193. 
 
 WAERANTY. 
 See Sale of chattels. 
 
 "WASTE. 
 
 1. In general. . A statutory guardian of an 
 infant has no riglit to commit waste by cutting 
 and removing timber from the land of his ward, 
 or to permit it to be done by another. Sup. Ct., 
 1873, Tony v. Black, 65 Barb. 414 ; Aff'd, S. C, 
 68N. Y. (l3 Sick.) 185. 
 
 2. 'When action may be brought. Wliere 
 a tenant makes alterations in the demised prem- 
 ises under a clause in tlie lease giving him the 
 right to make such as are not injurious, the 
 owner may bring an action for waste while tlie 
 alterations are in progress, and need not wait 
 until the end of the term to see if the tenant 
 will not restore the premises to their former 
 condition. Ct. App., 1874, Agate v. Lowenbeim, 
 57 N. Y. ( 12 Sick.) 604 ; Rev'g S. C, 4 Daly, 262. 
 
 3. By whom. A judgment creditor has no 
 such lien upon the real estate of his debtor as 
 would enable him to sue and recover for waste 
 committed tliereon. Com. App., 1872, Lanning 
 V. Carpenter, 48 N. Y. (3 Sick.) 408. 
 
 "WATERCOURSE. 
 
 1. "What is. To maintain the right to a 
 watercourse or brook, it must be made to appear 
 that the water usually flows in a certain direc- 
 tion and by a regular channel, though it is not 
 essential that it flow continually. Water flowing 
 through a hollow or ravine, only in times of rain, 
 or melting of snow, is not, in contemplation of 
 law, a watercourse. Sup. Ct., 1874, Wagner v. 
 Long Island R. R. Co., 2 Hun, 633. 
 
 2. Detention. The owner of lands lying upon 
 a stream has no right, when his mill is ade- 
 quately supplied from another source, to dam 
 up the water of such stream and, by means of 
 a reservoir, detain it until he shall want it for 
 use in a dry season. Ct. App., 1871, Clinton v. 
 Myers, 46 N. Y. (1 Sick.) 611. 
 
 3. Although such water may be of no value to 
 a lower riparian owner, and his motives in in- 
 sisting upon liis right to the natural flow may be 
 bad or malicious, a court of equity will not, by 
 injunction, restrain him from enforcing such 
 right. lb. 
 
 4. Diversion. A proprietor of land on the 
 upper part of a ditch running through lands be- 
 low, the owners of which are entitled to have the 
 same kept open and the water flowing there- 
 in, is not guilty of a wrongful diversion of such 
 water if he constructs a ditch running in another 
 direction, simply to relieve his own lands from 
 water accumulating thereon and left there to its 
 injury in consequence of the neglect of the own- 
 ers below to keep the former ditch in repair. 
 Sup. Ct., 1875, Curtiss y. Ayrault, 3 Hun, 487. 
 
 5. Drainage of surface -water. Although 
 the owner of lands has a right to drain the sur- 
 face water thereon in any direction he may 
 choose, yet, when he has, by means of ,a ditch, 
 formed for it a permanent channel through 
 which it flows in a continuous stream, and has 
 conveyed the land across which it flows in dif- 
 ferent parcels, he cannot, nor can his grantee of 
 one of the parcels, afterward divert it to the in- 
 jury of the owner of another parcel, who pur- 
 chased with reference to its condition in respect 
 to the ditch and water. Ct. App., 1871, Curtiss 
 V. Ayrault, 47 N. Y. (2 Sick.) 73. 
 
 6. Obstructions. A wharf erected in a navi- 
 gable stream extending beyond high water 
 mark, and intended as an aid to commerce, is 
 not per se illegal, or a nuisance. To be so, it 
 must be a material obstruction to navigation. 
 Sup. Ct., 1873, Delaware S^ Hudson Canal Co. v. 
 Lawrence, 2 Hun, 163 ; Aff'd by Ct App. 
 
 7. Trade and commerce are the chief objects 
 for which a watercourse may be used, and the 
 fight of passage is subservient to them. lb. 
 
 8. The public have not an unqualified right to 
 free navigation in every part and portion of a 
 navigable stream, to the exclusion of docks and 
 wharves upon, its margins, erected by riparian 
 owners for purposes of commerce, even though 
 they to some extent narrow the stream. lb. 
 
 9. A railroad company, which builds a bridge 
 over a stream crossing its track in a careful and 
 skilful manner, with all necessary openings to 
 discharge all the water coming down the stream 
 in any freshet which may reasonably be ex- 
 pected, is not liable for damages to adjoining 
 lands or structures caused by the waters of such 
 stream in time of freshet. Sup. Ct., 1875, Con- 
 hocton Stone R. Co. v. Buffalo, N. Y. §• E. R. R. 
 Co., 3 Hun, 523. 
 
 ■ 10. The fact that a bar formed by refuse matter 
 thrown into a stream.by an upper mill owner is 
 lower than the bottom of the flmne of a lower mill 
 owner, does not bar the latter of his action. He 
 is entitled to have his pond clear so that he can 
 lower his flume. Ct. App., 1872, O'Riley v. Mc- 
 Chesney, 49 N. Y. (4 Sick.) 672. 
 
 11. Right to confine to channel. If a 
 stream breaks through its bank and forms a 
 new channel, the owner of the land where such 
 break occurs has the right to erect a barrier 
 across such new channel for the purpose of con- 
 fining the waters within their original channel, 
 provided he does not build it too high, nor pro- 
 ject it into the stream so as to prevent their run- 
 ning in such old channel with their usual force. 
 Sup. Ct., 1869, Pierce v. Kinney, 59 Barb. 56. 
 
 12. He is not bound to keep the original chan- 
 nel of the stream on his own lands clear from 
 bars or obstructions, as a condition to his right 
 to maintain such barrier ; nor is he liable to an 
 adjoining proprietor for damages that may en- 
 sue to him from the non-removal of a bar, 
 formed in the channel below the barrier by 
 means of a flood. 
 
 13. Every person through whose land a stream 
 of water flows mayconstruct embankments or 
 
WIDOW— WILL. 
 
 737 
 
 other guards on its banks to prevent the stream 
 from washing them away and overflowing his 
 land to its injury ; but, in so doing, he must be 
 careful so to construct them as not to throw the 
 water upon liis neighbor's land, where it would 
 not 'otherwise go in ordinary floods. Sup. Ct., 
 1871, Wallace v. Drew, 59 Barb. 413; Rev'd 
 upon another point, S. C, 54 N. Y. (9 Sick.) 678. 
 
 14. Where an injury to the land of one ripa- 
 rian proprietor is caused by obstructions to the 
 stream erected by two other riparian proprie- 
 tors, unconnected in interest, each upon his own 
 premises, one of them should not be charged 
 with all the damages so caused. lb. 
 
 15. Rights as to floTuring spring. Every 
 owner of land has the right to clean out and 
 tube or wall up a natural spring upon liis own 
 land, for his own use and convenience,^when he 
 does not thereby change the natural course of 
 the flon^ of water therefrom, and makes no 
 change to the injury of anotlier, except what 
 may result from an increased flow of water in 
 the natural channel and outlet of such spring. 
 To do so is not such a wrongful use of the ease- 
 ment, or abuse of the right, as will give a right 
 of action to the owner of the servient estate. 
 Sup. Ct., 1871, Waffle V. Porter, 61 Barb. 130. 
 
 16. Title to waters and bed. The title to 
 the waters and bed of a navigable river, like the 
 Mohawk, is in the people of the State, and they 
 have the right not only to use the waters for 
 purposes of navigation, but to lease them to in- 
 dividuals, or to divert them for public uses. 
 Sup. Ct. Sp. T., 1872, Crill v. City of Rome, 47 
 How. 398. 
 
 17. The erection of a dam in such a stream 
 by an individual, without authority, is a nui- 
 sance, and the continuance thereof will give such 
 person no prescriptive right as against the State. 
 lb. 
 
 WIDOW. 
 See DoTTEB. 
 
 WILL. 
 
 L What is, and who mat make 737 
 
 II. Execution i kevocation ; probate. 737 
 ni. Validity ; constedction and ef- 
 fect . . . -. 740 
 
 IV. Suit fok construction 753 
 
 L What is, and who mat make. 
 
 1. WTiat is. If an instrument intended to 
 pass an interest in property is not to have any 
 operation until after death, it is a will, notwith- 
 standing it may have been executed in pursu- 
 ance of a previous promise or obligation appear- 
 ing upon its face. Ct. App., 1872, Matter of the 
 Will ofDeiz, 50 N. Y. (6 Sick.) 88. 
 
 2. A will executed by both husband and wife, 
 whereby they devise reciprocally to each other, 
 is valid, and operates as the separate will of the 
 one dying first. lb. 
 
 8. A married female cannot make a valid 
 testamentary disposition of her real estate 
 while an infant, the acta relative to married 
 women of 1848 and 1849, not having removed 
 the disability of infancy. Sup. Ct., 1875, Zim- 
 merrrian v. Schoenfeldt, 3 Hun, 692. 
 
 4. A monomaniac, whose delusion affects 
 47 
 
 the general soundness of his mind, and relates 
 to the subject or objects of the will, or to the 
 persons wlio would, under ordinary circum- 
 stances, be likely to be the recipients of his 
 bounty, or otherwise influences the provisions 
 of his will, is incapable of making a valid will. 
 Sup. Ct., 1875, Lathrop v. Borden, 5 Hun, 560. 
 
 n. Execution ; kevocation ; probate. 
 
 5. Attestation. Wliere, on probate of a 
 will, a subscribing witness testified, in substance, 
 that the will was read to the testator by the at- 
 torney, and the former declared it to be his will ; 
 that the testator either asked the witnesses to 
 sign, or upon being asked by tlie attorney if he 
 desired they should do so, either by nodding his 
 head or in words expressed such a desire, and the 
 witnesses signed in the presence of the testator, 
 — Held, that tliis sliowed a compliance with the 
 statute. Ct. App., 1874, Beldirtg v. Leichardt, 56 
 N. Y. (11 Sick.) '680. 
 
 6. Publication. A substantial compliance 
 with the statute in respect to the publication of 
 a will is sufficient ; and, although the statute de- 
 clares that the witnesses must sign at the re- 
 quest of the testator, and that he shall subscribe 
 the will, or acknowledge the subscription in 
 their presence, the words of request or acknowl- 
 edgment may proceed from another, and will 
 be regarded as those of the testator, where the 
 circumstances show that he adopted them, and 
 that the party using them in his presence was 
 acting for him with his assent. Ct. App., 1873, 
 Gilbert v. Knox, 62 N. Y. (7 Sick.) 125. 
 
 7. The knowledge that the instrument which 
 the witnesses are called upon to attest is a will, 
 must be communicated to tliem by the testator 
 at the time of his subscription or acknowledg- 
 ment, and knowledge derived from any other 
 source or at any other time, of the same fact, 
 cannot stand as a substitute for the declaration 
 of the testator. But the fact that the testator 
 was fully apprised of the testamentary character 
 of the instrument may be considered in aid of 
 proof tending to establish a publication. lb. 
 
 8. It is not necessary that a testatrix should 
 declare in words the " instrument to be her 
 will," but it is sufficient if, by words and acts, 
 she makes tliat fact known to the witnesses, and 
 they subscribe it as such at lier request. Sup. 
 Ct., 1875, Thompson v. Leastedt, 3 Hun, 395. 
 
 9. Such publication may be establislied as a 
 matter of fact by tlie testimony of one of the 
 witnesses, even thpugli the other lias forgotten 
 the transaction; lb. 
 
 10. Where tlie testator did not, in words, say 
 to the witnesses that the paper si^ed by him 
 was his will, and did not request tliem to sign as 
 witnesses, the paper cannot be sustained as a 
 will, unless sometliing equivalent to such declara- 
 tion and request is shown. Sup. Ct., 1872, 
 McKinley v. Lamb, 64 Barb. 199. 
 
 11. Testimony by two of the witnesses that 
 they heard nothing from the testator as to its 
 being a will, but that they had been told by 
 a third party, not in the presence of the testator, 
 that they were to be witnesses of a will, is not 
 sufficient. lb. 
 
 12. The fact that the will was read in the pre- 
 sence of the testator, is a circumstance which the 
 jury may take into consideration in determining 
 whether there was any publication, but it does 
 not necessarily amount to a publication. In con- 
 nection with proof of such reading, evidence as 
 to the state of the testator's hearing at the time 
 may properly be received. lb. 
 
738 
 
 WILL. 
 
 13. Where the due execution of a will is 
 attempted to be made out by circumstantial evi- 
 dence, tlie age of the testator may properly be in- 
 quired into. lb. 
 
 14. The testimony of a witness to a will, that 
 she saw tlie deceased sign it; that he told her he 
 wanted her to sign her name to it, and she did 
 so in his presence, but she did not hear hira say 
 that it was his last will and testament, is not 
 sufficient to show that the statute has been com- 
 plied with as to publication. Sup. Cfc., 1862, 
 Trustees of Auburn Theol. Sem. v. Calhoun, 62 
 Barb. 381. 
 
 15. Where such witness testifies that she 
 heard the other witness say in the presence of de- 
 ceased at the time he executed it, that it was the 
 last will and testament of the latter, but that it 
 is doubtful whether the latter heard the remark 
 on account of his deafness, the proof is still in- 
 sufficient, lb. 
 
 16. Proof by one of the subscribing witnesses 
 that all the statutory formalities were observed, 
 is sufficient to establish a will, although the 
 other witness fails to remember that fact, pro- 
 vided the surrogate is satisfied that he is truth- 
 ful, and tells the transaction precisely as it hap- 
 pened, lb. 
 
 17. Seal. A seal is not necessary to the valid- 
 ity of a will of either real or personal property. 
 Ct. App., 1872, Matter of will ofDiez, 50 N. Y. (5 
 Sick.) 88. '' 
 
 18. Signatures. In order to the due execu- 
 tion of a will the signatures of the testator and 
 the witnesses must be at the end of the will. 
 Where the testator signed at the bottom of a 
 page, and apparently by mistake in turning it 
 over, the attestation clause and witnesses' signa- 
 tures were on a blank page in the middle of the 
 will, — Held, that it was not duly executed. Surr. 
 Ct., 1873, Ready's Will, 15 Abb. N. S. 211, and see 
 note. lb. 
 
 19. Spaces. It seems that where a blank 
 page or space is left in a will, lines should be 
 drawn across it to prevent fraudulent insertions. 
 lb. 
 
 20. Effect of birth of post-testamentary 
 child. The statute requires that the share of a 
 post-testamentary child shall be recovered from 
 the devisees and legatees in proportion to and 
 out of the parts devised and bequeathed to them 
 by will ; and each devisee and legatee should be 
 charged with such proportion thereof as the ag- 
 gregate value of the testator's estate on the day 
 of his death, after pay ment of his debts, bears to 
 the share of the plaintiff. Sup. Ct, 1875, Sanford 
 v. Sarford, 4 Hun, 753. 
 
 21. Whetlier it is proper to include advance- 
 ments made by the testator in determining the 
 amount of property of which the post-testament- 
 ary child is entitled to his proportionate share, 
 and not to include it when such share is assessed, 
 query f lb, 
 
 22. A legacy given and accepted in lieu of 
 a dower, must abate in such a case like other 
 legacies, and is not a lien upon the real estate, 
 even where there were advancements to some of 
 the testator's children, who were also devisees, 
 which advancements were not assessed to make 
 up the share of a pos^testamentary child. James, 
 J., dissents. lb. 
 
 28. Revocation by codicil. A codicil 
 will not operate as a revocation beyond the clear 
 import of its language ; but an expressed inten- 
 tion to alter a will in one respect, negatives, by 
 implication, any intention to alter it in any other 
 respect. Ct. App., 1878, Wetmore v. Parker, 52 
 N. Y. (7 Sick.) 450; Aff'g S. C, 7 Lans. 121. 
 
 24. A bequest of the residuum of the testator's 
 estate " to the several persons, corporations and 
 societies to whom I have hereinbefore made be- 
 quests, in proportion to the amounts bequeathed 
 to them respectively," is an independent be- 
 quest, the reference to the prior legacies being 
 merely for purposes of identity and description, 
 and the revocation in whole or in part of some 
 of the prior legacies by a codicil will not affect 
 the right of the legatees to their shares of the 
 residuum. lb. 
 
 26. Although, as a general rule, a will speaks 
 from the death of the testator, yet, where, as 
 in such a bequest, it refers to an existing state of 
 facts, its language will be held to refer to the 
 date of the will, not to tiiat of his death. lb. 
 
 26. — by marriage. A will made in this 
 State by an unmarried female Is absolutely re- 
 voked by her subsequent marriage. The pro- 
 vision of 2 R. S. 64, see. 39 (2 Edm. Stats. 64, sec. 
 44), that it shall be " deemed to be revoked," is 
 positive, and creates more than a mere presump- 
 tion of revocation. Sup. Ct., 1876, Lathrop v. 
 Dunlop, 4 Hun, 213. 
 
 27. The fact that she is married in Canada 
 after having entered into an ante-nuptial agree- 
 ment by which she reserves control of her own 
 property, does not prevent such a revocation, 
 lb. 
 
 28. Duty of executors. It is the duty of 
 executors to have a will of real estate duly ad- 
 mitted to probate. N. Y. C. P. Sp. T., 1873, 
 Thorn V. Shell, 15 Abb. N. S. 81, note. 
 
 29. Effect of probate. A will of real es- 
 tate duly proved before a surrogate having j uris- 
 diction, is prima facie evidence of the validity of 
 a title derived through it ; but the authority of 
 the surrogate to act is dependent upon his hav- 
 ing acquired j urisdiction of the heirs-at-law of 
 the testator, and if the evidence on which he 
 acted does not show such jurisdiction, the pro- 
 ceedings for the proof of the will are void as 
 against them. lb. 
 
 30. Decree by consent. The surrogate 
 might be authorized by stipulation of parties in- 
 terested, all being adults, to make a decree in ac- 
 cordance therewith, but he cannot refuse or 
 allow probate, on consent of the guardian ad 
 litem of an infant, or his counsel, without formal 
 proof and an actual decision on the merits. Surr. 
 Ct., 1873, Matter of Greeley's Will, 15 Abb. N. S. 
 393. 
 
 31. He cannot permit the testimony and pro- 
 ceedings on an application f5r probate to be 
 withdrawn from his court on the abandonment 
 of the proceedings by the proponent, but they 
 must be preserved in the records and files of his 
 court. lb. 
 
 32. 'What entitled to probate here. The 
 wife of a soldier, who removed his family to a 
 State other than that in which he was domiciled 
 when he entered the army and kept house there, 
 and afterward brought them to this State and 
 procured them to be boarded here, must be 
 deemed to have changed her domicil, and she 
 having died here, her property is subject to our 
 laws, and her will may properly be admitted to 
 probate here, notwithstanding she left a child 
 born after its execution. Sup. Ct., 1871, Ames 
 V. Duryea, 6 Lans. 155. 
 
 33. Who may contest. Executors under 
 a will have sufficient interest to be entitled to 
 oppose tlie probate of a later will, even though 
 the legatees under the earlier will have released 
 their interest. Surr. Ct., 1873, Matter of Gree- 
 ley's Will, 16 Abb. N. S. 393. 
 
 34. The provisions of 2 B. S. 61, sees. 30-39, 
 
WILL. 
 
 739 
 
 allowing next of kin to contest the probate of a 
 will within one year after it was granted, are 
 not confined to wills relating solely to personal 
 property, but are applicable to those proved as 
 wills of both real and personal property. Ct. 
 App., 1872, In matter of Will of J. Kdlum, 50 
 N. Y. (5 Sick.) 298 ; Rev'g S. C, 6 Lans. 1. 
 
 86. Those provisions are not abrogated by ch. 
 460, Laws 1837, which requires the same proof 
 and proceedings for the probate of wills of per- 
 sonal as of real property, and dispenses with the 
 separate recording of the instrument as a will of 
 personal property after it has been recorded as 
 a will of real property. lb. 
 
 86. The revocation of the probate of a will 
 as one of personal estate, does riot impair its 
 probate as a will of real estate, if it has also 
 been proved as such, and notice to devisees is 
 therefore unnecessary. lb. 
 
 37. The wife of an heir-at-law of the deceased 
 cannot properly be permitted to come in and 
 contest the probate of the will of such deceased, 
 merely to protect her inchoate right of dower in 
 lands which would descend to her husband if the 
 will was not allowed, even though her husband 
 has deserted her without cause and does not per- 
 sonally appear to contest it, and there are good 
 grounds of contest ; much less where he does 
 appear. Surr. Ct., 1873, In matter of RoUwagen, 
 48 How. 103. 
 
 38. Proof by one 'witness. It is the settled 
 law of tliis State that the execution of a will 
 may be proved on a trial at law by one witness, 
 if he is able to prove its perfect execution ; and 
 it may in like manner be proved before the sur- 
 rogate; where one of the two subscribing wit- 
 nesses is dead, or insane, or resides out of this 
 State. Ct. App., 1867, Cornwell v. Wooley, 43 
 How. 476. 
 
 39. Burden of proof. Although the pro- 
 ponents of a will hold the affirmative, and are 
 bound to establish its. due execution, yet, if the 
 attestation clause is full, the signatures genuine, 
 and the circumstances corroborative of due exe- 
 cution, and there is no evidence disproving a 
 compliance in any particular with the statute, 
 the presumption may be lawfully indulged th"&t 
 the execution was regular, although the wit- 
 nesses are unable to recollect it, or what took 
 place at the time. Ct. App., 1873, Matter of 
 Will of Kellum, 52 N. Y. (7 Sick.) 517. 
 
 40. Order of proof. Where the probate of 
 a will is contested in respect to the genuineness 
 of the paper offered, the testamentary capacity 
 of the deceased, and the influence exerted upon 
 him, the surrogate has a discretion as to the 
 order of proofs, and may properly require the 
 contestant to present first his evidence touching 
 the genuineness of the paper, and successively 
 afterward that relating to capacity and undue 
 influence. Surr. Ct., 1871, Taylor Will case, 10 
 Abb. N. S. 300. 
 
 41. The contestant may properly be allowed to 
 examine "the private papers oi the deceased in 
 the hands of the administrator bearing on the 
 personal relations involved, but they should be 
 examined by the court to determine their rele- 
 vancy before further exposure of their contents 
 by putting them in evidence, -ilb. 
 
 42. When the proponents have made the usual 
 proof by the subscribing witnesses and the party 
 who held the will before it was offered for pro- 
 bate, that is sufficient to cast the burden of proof 
 upon the contestant, and they cannot be required 
 to examine the lawyer who drew the will, or to 
 go on and produce all their cumulative evidence 
 in the first instance. lb. 
 
 43. Although declarations of the testator made 
 after the execution of his will are usually inad- 
 missible, yet, when they are offered strictly as 
 corroborative evidence in respect to the genuine- 
 ness of the signature and the free execution of 
 the will, and to rebut the contestant's evidence 
 on those points, they may be admitted. lb. 
 
 44. The value of the testimony of experts in 
 handwriting against tlie genuineness of the sig- 
 nature to a will, is liable to be affected by the 
 mental and pliysical condition of the testator 
 when he wrote, and should' not prevail unless 
 supported by strong corroborative proof. lb. 
 
 45. Such opinions formed upon photographic 
 copies of the signature are entitled to but little 
 weight, and the photographic copies themselves 
 should not be received in evidence. lb. 
 
 46. Proof of age of testator. Testimony 
 upon probate of a will in 1820, that the testator 
 was of full age at the time of its execution, — 
 Held to mean that he was of the age of 25 years, 
 as that was the age at which, under the laws 
 then in force, he could make a valid will. Sup. 
 Ct., 1874, Howard V. Moot, 2 Hun, 475. 
 
 47. Testamentary capacity. Upon a con- 
 test of the probate of a will on the ground of the 
 mental and physical Incapacity of the testator, 
 witnesses should not be permitted to state their 
 opinions and conclusions as to the wishes and 
 intentions of the testator drawn from his acts 
 and motions. Sup. Ct., 1874, RoUwagen v. RoU- 
 wagen, 3 Hun, 121. 
 
 48. A will made by a person who was at the 
 time of its execution suffering from paralysis, 
 and unable to speak or articulate distinctly, 
 should not be admitted to probate upon proof of 
 certain sounds and motions claimed to be ex- 
 pressive of his thoughts and desires, unless the 
 character and meaning of such sounds and mo- 
 tions are clearly and unequivocally established. 
 lb. 
 
 49. To warrant the rejection of a testamentary 
 paper on the ground of incapacity, there must 
 have been an entire loss of intellect in the de- 
 cedent, producing inability to understand what 
 he was doing or the contents of the paper when 
 read. Sup. Ct., 1873, Crolius v. Stark, 7 Lans. 
 311 ; S. C, 64 Barb. 112, 
 
 50. Where a surrogate bases his decision re- 
 jecting such a paper for mental incapacity on the 
 opinion of tlie attending physician, whose visits 
 were infrequent, and wlio formed such opinion 
 from the condition of the deceased and not from 
 conversations with lier, wliicli is opposed by the 
 testimony of another physician speaking only 
 
 from a statement of the case, and of lay wit- 
 nesses whose intercourse with the deceased had 
 been frequent, and who had conversed witli her 
 and seen her transact business, and were wit- 
 nesses to the paper, though their testimony was 
 conflicting and showed evident bias, such decis- 
 ion should not be held conclusive, but a feigned 
 issue should be awarded on appeal. lb. 
 
 51. To render a person competent to dispose 
 of his property by will, it is not enough tliat he 
 be possessed of some degree of intelligence and 
 mind, but he must have sufficient mind to com- 
 prehend the nature and effect of the act he is per- 
 forming, and the relation he holds to the various 
 individuals who may naturally be expected to 
 become objects of his bounty, and be capable of 
 making a rational selection among tliera. Sup. 
 Ct., 1872, Forman v. Smith, 7 Lans. 443. S. P., 
 Kinne v. Johnson, 60 Barb. 69, 
 
 52. Upon probate of the will of an aged man, it 
 is not necessary to prove that his mental facul- 
 ties were those of a man in middle life and un- 
 
740 
 
 WILL. 
 
 impaired physical powers ; but it is sufficient if 
 it be shown that he had capacity to fully com- 
 prehend the claims of his several children on his 
 bounty, and to understand now to adjust and sat 
 isfy those claims. Sup. Ct., 1862, Reynolds r. 
 Root, 62 Barb. 250. 
 
 53. Failure of memory, being a natural atten- 
 dant upon age, does not incapacitate such a man 
 for making a will. lb. 
 
 54. Wliere neither of the subscribing witnesses 
 to a will and codicil, executed by a person 80 
 years of age, testified to his mental capacity, but 
 one of them thought him not sound at the execu- 
 tion of either paper, and it appeared by other 
 evidence that, a few months after executing the 
 c(jdicil, the testator did not recognize his own 
 children, nor remember how many he had or 
 their names, — Held that probate thereof was 
 properly refused. Sup. Ct., 1872, Dumond v. Kiff, 
 7 Lans. 465. 
 
 55. TTndue influence. The objection to a 
 will, that at the time of making it the testator 
 was under undue influence or restraint, always 
 implies that he had sufficient mental capacity to 
 make a valid will, but that the will in question 
 was not his voluntary act. Sup. Ct., 1869, 
 Kinne v. Johnson, 60 Barb. 69. 
 
 56. To set aside a will, on the ground of undue 
 influence, it must appear that it does not express 
 the unbiased intent and wishes of the testator, 
 but has been extorted or procured from hira in 
 the weakness or imbecility of old age or disease, 
 by artifice, deceit or imposition, or by persistent 
 importunity amounting to a species of coercion 
 or moral duress ; and, in that sense, undue in- 
 fluence is a fraud. lb. 
 
 57. Tlie influence arising from gratitude, af- 
 fection or esteem, is not undue. lb. 
 
 58. The fact tliat a large portion of the testa- 
 tor's property is devised to a person standing in 
 a fiduciary relation to him, is sufficient to raise 
 a suspicion, if not a presumption of undue influ- 
 ence, and to call for proof to the contrary. lb. 
 
 59. Mere weakness of intellect in the testator 
 does not prove that his will was procured by un- 
 due influence ; but tliere must' be some evidence 
 of such influence and of its improper exercise. 
 Sup. Ct., 1862, Reynolds v. Root, 62 Barb. 250. 
 
 60. Such influence need not be proved by di- 
 rect evidence, but it may be established by proof 
 of facts and circumstances from which it may 
 legitimately be inferred. lb. 
 
 61. Where the circumstances under which a 
 will was executed were such as to excite suspi- 
 cion of undue influence, the case should be sub- 
 mitted to a jury upon issues framed for that pur- 
 pose, lb. 
 
 62. To invalidate a will on the ground of un- 
 due influence, it must be proved that it was pro- 
 cured by force, threats, or coercion, destroying 
 free agency. The exercise of influence spring- 
 ing from the family relation, or from considera- 
 tions of service, aifection, or gratitude, although 
 pressed importunately, is not undue. Sup. Ct., 
 1874, Hazard v Heffard, 2 Hun, 445. 
 
 63. Where a will made by an infirm man, aged 
 82 years, whose mind was impaired, giving near- 
 ly all his property to the family of the son with 
 whom he lived, and excluding other children 
 provided for in previous wills, was contested, 
 and the evidence tended to show that such son 
 stood in confidential relations to his father as 
 his business adviser, and exercised a controlling 
 influence over him ; that the other children were 
 excluded from the presence of the father, or not 
 permitted to see him alone, and their conduct 
 and language respecting him was misrepresented 
 
 to him ; — Held, that the circumstances were suf- 
 ficient to awaken suspicion, if not to raise a pre- 
 sumption that undue influence was exerted or 
 fraud practised upon the testator in procuring 
 the execution of tlie will, and it was a proper 
 case for investigation and determination by a 
 jury ; and the probate of the will was therefore 
 set aside and feigned issue awarded. Sup. Ct., 
 1872, Forman v. Smith, 7 Lans. 443. 
 
 64. Where a husband, after he had become 
 helpless and dependent, and entirely subject to 
 the influence of hie wife, executed a will, drawn 
 under her direction and procurement, by which, 
 instead of giving her a life estate merely as in a 
 former will, he gave her a fee in a house, and 
 also one-third of his personal property, — Held, 
 that such will ought not to be admitted to pro- 
 bate ; the condition of the testator being such that 
 he could not detect the alteration when read 
 over to him, and it was therefore a fraud upon 
 him. Sup. Ct., 1874, Rollwagen v. Rollwagen, 3 
 Hun, 121. S. P., In matter of Rollwagen, 48 How. 
 289. 
 
 65. Such alterations being made by the pro- 
 curement of the wife, under such circumstances, 
 and entirely for her benefit, the presumption is 
 that they resulted from her influence, unduly 
 and improperly exercised over him. lb. 
 
 66. TJndue influence will be presumed where 
 it appears that the testator was at the time of 
 executing his will, feeble, weak, arid in advanced 
 age, and that it was drawn by the principal leg- 
 atee in his own favor. Ct. App., 1874, Marvin v. 
 Marvin, 3 Hun, 139. 
 
 67. Application for revocation of pro- 
 bate. On an application for the revocation of 
 tlie probate of a will, on the ground that the 
 testator was under the age of 18 when the will 
 was executed, his mother is a competent witness 
 to prove the time of his birth. Sup. Ct, 1871, 
 In Matter of Paige, 62 Barb. 476. 
 
 68. A memorandum of the time of his birth, 
 made in an account book by the physician who at- 
 tended, cannot be received in evidence after the 
 death of such physician, unless sustained by 
 proof of its truth. lb. 
 
 - 69. Neither can the declarations of the testator 
 himself as to his age be admitted in evidence, on 
 such application. lb. 
 
 70. A decree, revoking the probate of a will, 
 will be sustained on appeal, notwitlistanding the 
 admission of improper evidence, if there was 
 sufficient evidence of a proper character to sus- 
 tain it. lb. 
 
 71.' Revocation. The probate of a will held 
 to have been properly revoked, where it appeared 
 that it was made about the time that the testator 
 received his bounty as a soldier ; that it was 
 drawn in the office of his guardian, who was an 
 attorney, and was made his legatee ; and by its 
 revocation the estate would go to his next of kin. 
 Sup. Ct., 1871, In Matter of Paige, 62 Barb. 476. 
 
 72. Decision on appeal. Upon appeal from 
 the decree of a surrogate admitting a will to pro- 
 bate, the presumption is in favor of its correct- 
 ness, and the court cannot reverse it unless 
 shown to have been erroneously made. Sup. Ct., 
 1874, Rollwagen v. Rollwagen, 3 Hun, 121. 
 
 III. Validity ; construction and effect. 
 
 73. Contingent bequests. A contingent, 
 executory bequest, to a corporation to be created 
 within tlie period allowed for the suspension of 
 ownershij) of property, is valid. Ct. App., 1871, 
 Burrill v. Boardman, 43 N. Y. (4Hand,) 254. 
 
 74. Where 'a bequest was made for the found- 
 
WILL. 
 
 741 
 
 mg of a hospital, the charter of which was to be 
 applied for and granted within the period of two 
 lives ill being, or, in case of a failure to obtain 
 the charter, then to be paid to the United States, 
 — Held, to imply that the charter should be 
 granted and become operative within the speci- 
 fied time ; that the bequest was not void for 
 uncertainty in the donee ; that its validity was 
 not affected by the validity or Invalidity of the 
 devise over to tlie United States ; and that it 
 was a valid executory devise. lb. 
 
 76. Devise to charitable uses. The stat- 
 utes of 1840 (ch. 818) and 1841 (ch. 261), have 
 not removed the restriction of 1 R. S. 462, sec. 
 42 (1 Edm. Stats. 408), limiting the power of in- 
 corporated academies or other literary institu- 
 tions to take by will ; and a bequest to such a 
 corporation of a ibm, which, invested with the 
 property now owned by it will yield at 7 per 
 cent, interest, an annual income exceeding $4,- 
 000, is void as to the sum in excess of what is 
 needed for that purpose. Ct. App., 1871, Cham- 
 berlain V. Chamberlain, 43 N. Y. (4 Hand,) 424. 
 
 76. The widow's dower is no part of a testa- 
 tor's estate, and should be deducted, together 
 with the debts, in order to ascertain the estate, 
 only one-halt- of which can, under ch. 360 of the 
 Laws of 1860, be devised to charitable objects, 
 lb. 
 
 77. A testator cannot give to two corporations 
 in the aggregate more than he can give to a 
 single charitable object, viz. : one-half his es- 
 tate ; and in case of such bequests, the share of 
 the one in excess of a quarter interest will be 
 reduced to bring the whole within the statutory 
 limit. lb. 
 
 78. The system of charitable uses as re- 
 cognized in England, has no existence in this 
 State ; and no trust in realty can be devised ex- 
 cept such as are permitted by the Revised Stat- 
 utes. Ct. App., 1873, Holmes v. Mead, 52 N. Y. 
 (7 Sick.) 332. 
 
 79- A devise of lands in trust to be used and 
 occupied for religious purposes, when there is no 
 corporation in existence capable of taking and 
 none named in the will as the beneficiary of the 
 trust, is invalid. lb. 
 
 80. A bequest which attempts to create a trust 
 not valid under the Revised Statutes, cannot be 
 sustained merely because it is to charitable uses. 
 Sup. Ct., 1872, Wetmore v. Parker, 7 Lans. 121 ; 
 Aff'd, S. C, 52 N. Y. (7 Sick.) 450, 
 
 81. A corporation created for charitable pur- 
 poses, may take by bequest and hold personal 
 property, limited by the testator to any of the 
 uses for which such corporation was created ; 
 and if such a bequest is fixed and certain, and 
 gives an immediate and vested interest, a direc- 
 tion by the testator that the principal shall be 
 kept inviolate and only the income expended 
 will not invalidate it. lb. 
 
 82. The statutes against perpetuities does not 
 afiect such a bequest, nor does it create a trust, 
 in the sense in which that term is applied to 
 property ; but the corporation uses the property 
 in accordance with the lnvf'of its creation for its 
 own .purposes, and the dictation of the manner 
 of its use within the law, by the donor, does not 
 affect its ownership or make it a trustee. lb. 
 
 83. In estimating the valjie of property held 
 by a charitable corporation, to ascertain whether 
 a legacy would increase it beyond the amount 
 limited by its charter, its debts must be deducted, 
 lb. 
 
 84. A bequest by a testator, who left a widow 
 but no children, of all his estate to his executors, 
 in trust to pay a certain annuity to his wife out 
 
 of the rents, issues and profits, and the surplus 
 of such rents, etc., to a certain charitable soci- 
 ety, and, upon the death of his wife, to convey 
 the whole estate to such society, is valid to the 
 extent of one-half the estate, and as to the 
 other half the testator will be deemed to have 
 died intestate. Surr. Ct., /ra Matter of Leary's 
 Will, 1 Tuck. 233. 
 
 86. An academy, incorporated for the purpose 
 of educating males and females, may take by 
 devise property to be used in establishing a sepa- 
 rate department for either sex. Ct. App., 1871, 
 Adams v. Perry, 43 N. Y. (4 Hand,) 487. 
 
 86. The validity of such a devise is not af- 
 fected by a provision or direction annexed to it, 
 that the daughters of officers and others of a 
 specified class shall receive their tuition free of 
 charge. lb. 
 
 87. Such a provision does not create a trast in 
 favor of tlie persons specified, nor render tliem 
 the beneficiaries under the wiH. lb. 
 
 88. Devise to foreign corporation. A cor- 
 poration organized under the laws of a sister 
 State may take property under a will executed 
 by a citizen of this State, if, by the law of their 
 creation, they have authority to take by devise 
 or bequest. Ct. App., 1871, Chamberlain v. 
 Chamberlain, 43 N. Y. (4 Hand,) 424. 
 
 89. That such corporation is erected for char- 
 itable purposes and the devise is for a charity, 
 is not material. The courts of this State will 
 direct the payment into the proper hands, leav- 
 ing it to the courts of the State where the char- 
 ity is to be established to administer the same, 
 lb. 
 
 90. Directing accumulation. A provision 
 in a will that a portion of the rents, incomes and 
 profits of certainNhares into which the estate is 
 divided, which were given to minors, should be 
 accumulated during their respective minorities, 
 and at the majority of eaph the accumulation of 
 his share should be added to it, arid the rents, 
 issues and profits of the shares thus increased be 
 paid over to the respective beneficiaries, is valid. 
 The law does not require the accumulation to be 
 paid over to the beneficiary on liis attaining 
 majority, but it is sufficient that it be for his 
 benefit. Sup. Ct., 1874, Meserole v. Meserole, 1 
 Hun, 66. 
 
 91. A clause in a will whereby the testator 
 bequeaths to his three children, after paying 
 legacies and debts, "all interest that may ac- 
 crue on the balance of my estate, to be divided 
 between them at the age of 40 years, to hold for 
 their natural Uves and then to be divided between 
 their heirs," is void as far as it provides for the 
 accumulation of the income, because it extends 
 beyond the minority of the children ; and such 
 provision cannot be held void in tliat respect, 
 and effect be given to the residue, because it 
 suspends the power of alienation beyond two 
 lives in being. Sup. Ct., 1874, Simpson v. Eng- 
 lish, 1 Hun, 559. 
 
 92. Where a testator gave real estate to his 
 executors, with directions to turn it into money, 
 accumulate the income, and after his widow's 
 death, divide the whole among his nephews, — 
 Held, that the directions for accumulation, so 
 far as they extended it beyond the minority of 
 the nephews, were invalid, but the devise was in 
 other respects valid ; — that the accumulations 
 prior to the majority of the nephews should be 
 held by the trustee until the death of the widow, 
 and then distributed to them, but they were en- 
 titled to have accumulations and interest after 
 their majority paid over to them. Sup. Ct., 
 1871, Robison v. Robison, 6 Lans. 165. 
 
742 
 
 WILL. 
 
 93. Executor, delegating appointment of . 
 
 In providing for the execution of his will, a tes- 
 tator is not limited, either by common law or by 
 statute, to designating a person by name as ex- 
 ecutor, but he may by his will delegate the pow- 
 er of naming his executor to some other person. 
 Gkovek & FoLGER, JJ., disscnt. Ct. App., 1875, 
 Hartnett v. Wandei, 60 N. Y. (15 Sick.) 346 ; 
 Rev'g S. C, 2 Hun, 552. 
 
 94. Under a will which constituted the wife 
 of the testator as his executrix, and requested 
 " that such male friend as she may desire be ap- 
 pointed with lier as executor," — Held, that the 
 appointment of an executor by her was valid, 
 lb. 
 
 95. Devise of laud.contracted to be sold. 
 A vendor who has contracted to sell land may 
 devise it to a third party, and the devisee will 
 take the title charged with a trust for the bene- 
 fit of the contract vendee ; and if the latter fails 
 to perform, the devisee will become the absolute 
 owner in fee. Sup. Ct., 1875, McCarty v. Myers, 
 5 Hun, 83. 
 
 96. The contract will pass to the executors of 
 the vendor, who will be entitled to enforce it, 
 and will hold the purchase-money for the cred- 
 tors of their testator, or for the devisee in case 
 the other personal assets are sufficient to pay 
 the debts of the estate. lb. 
 
 97. La-w of place. The law of a testator's 
 domicil, at the time of his death and not at the 
 time of the execution of the will, determines the 
 validity of a will of personalty. Ct. App., 1873, 
 Dupuy V. Wartz, 53 N. T. (8 Sick.) 556. 
 
 98. As applied to the law of succession, the 
 law of domicil means, not the general law, but 
 the law which the country of the domicil applies 
 to the particular case under consideration. Ac- 
 cordingly, — Held, that a will executed according 
 to the laws of this State, by a citizen who had 
 acquired an actual domicil in France, but had 
 failed to procure an authorization from the Em- 
 peror, as required by sec 13 of the Code Napo- 
 leon to entitle him to the civil rights attaching 
 to domicil, was valid, such a will being valid by 
 the law of France. lb. 
 
 99. Where a native born citizen of the United 
 States left her domicil in New York, and went 
 to Europe for her health and remained there 
 about 12 years until her death, sojourning at 
 different places as health and comfort required, 
 always speaking of New York as iier home to 
 which she desired to return if able, and while 
 in France made a will of real and personal prop- 
 erty, in which she declared that she considered 
 her home and residence as still being in the city 
 of New York, — Held, that her domicil and citi- 
 zenship remained unchanged ; and her will be- 
 ing executed in accordance with the statutes of 
 New York, was valid. Sup. Ct., 1872, Dupuy v. 
 Seymour, 64 Barb. 156. 
 
 100. Although the law of. the testator's domi- 
 cil controls as to the formal requisites essential 
 to the validity of the will and its construction, 
 yet, the validity of any particular bequest is 
 governed by the law of the domicil of the lega- 
 tee, subject to the qualification, that a gift in 
 contravention of a statute of the State of the 
 testator's domicil, prohibiting, in terms, bequests 
 for a particular purpose, is void everywhere. 
 Ct. App., 1871, Chamberlain v. Chamberlain, 43 
 N. Y. (4 Hand,) 424. 
 
 101. Leasehold estates for years in lands in 
 this State owned by a non-resident are to be re- 
 garded as personal property, and as such, for the 
 purpose of transmission by last will and testa- 
 ment will be subject td the law which governs 
 
 the person of the owner. Ct. App., 1873, Des- 
 pard V. Churchill, 53 N. T. (8 Sick.) 192. 
 
 102. The validity of a trust in real estate 
 created by will, is to be determined by the 
 courts of the State where the realty is situated, 
 but, though real and personal property are given 
 by the same clause of the will and upon the 
 same trusts, they are severable, and the validity 
 of the bequests of personal property will depend 
 upon the law of the testator's domicil at the 
 time of death. Ct. App., 1872, Knox v. Jones, 
 47 N. Y. (2 Sick.) 389. 
 
 103. A misnomer or misdescription of a 
 legatee or devisee, whether a natural person or 
 a corporation, will not invalidate the provision 
 or defeat the intention of the testator, if, either 
 from the will itself or evidence dehors tiie will, 
 the object of the testator's bonnty can be ascer- 
 tained ; and parol evidence is admissible to as- 
 certain who was intended. Ct. App., 1875, Le- 
 fevre v. Le/evre 59 N. Y. (14 Sick.) 434. 
 
 104. A bequest to the "Home of the Friend- 
 less in N. Y," — Held, intended for the American 
 Female Guardian Society, on evidence showing 
 that one of its objects was to provide homes for 
 the friendless,— that it was known by that name, 
 and had that name on its principal building, 
 and that there was no other society which an- 
 swered the description. lb. 
 
 105. Suspending absolute O'ra'nershlp. A 
 bequest of personal property to an executor in 
 trust, to receive the income and pay it over to 
 a brother during his life, and upon his death, in 
 equal shares to each of two sisters duritig their 
 joint lives and to the survivor of them during 
 her life, with limitation over absolutely upon the 
 death of such survivoi:, vests the legal property 
 in the executor during the life of the trust, and 
 is void as suspending the absolute ownership 
 beyond two lives in being at the death of the 
 testator. Ct. App., 1872, Knox v. Jones, 47 N. 
 Y. (2 Sick.) 389. 
 
 106. In such case, the trust cannot be sustain- 
 ed as to the lives of those two cestuis que trust 
 first dying and declared void as to the residue, 
 but the whole trust is void. lb. 
 
 107. Suspending power of alienation. A 
 devise of all the testator's real and personal 
 estate to his wife, for her use and benefit until 
 his youngest child shall be 21 ; or in case such 
 child shall not attain that age, until the next 
 youngest child shall reach that age ; and then 
 one-third to go to the widow, and the remainder 
 to be distributed among his children, of' whom 
 he had three, does not unlawfully suspend the 
 power of alienation beyond two lives in being, 
 but it gives to the widow an immediate estate of 
 inheritance in one-third of the real estate, and 
 an estate for years in the other two-thirds, and 
 to the children a vested remainder in fee in two- 
 thirds, which is descendible, devisable and alien- 
 able by them. Sup. Ct., 1871, Tracy v. Ames, 4 
 Lans. 500. 
 
 108. A devise of a residuary estate to execu- 
 tors, in trust to receive and apply the rents dur- 
 ing the life of the testator's wife, and, after her 
 death, to sell a portion and cause the whole, in- 
 cluding proceeds of sale, to be appraised and 
 divided, and to convey specified shares to the 
 testator's sons, to whom he in terms devises and 
 bequeaths the same, or in ca^e of their death to 
 their then living issue ; and upon further trust 
 to retain and invest certain other shares, receiv- 
 ing and applying the income to the use of testa- 
 tor's daughters during life, with remainder over 
 after their death, is not void as suspending the 
 power of alienation or the absolute ownership 
 
WILL. 
 
 743 
 
 of property beyond the legal limit ; but the title 
 to the undivided property, upon the death of the 
 widow, vests at once in the sons and trustees of 
 the daughters, as tenants in common, subject to 
 the power of division and sale. Ct. App., 1871, 
 Manice v. Manice, 43 N. Y. (4 Hand,) 303 ; Rev'g 
 S. C, 1 Lans. 348. 
 
 109. The limitation over to take effect in case 
 of the death of the sons, must be held to refer 
 to the time appointed for the division, or in other 
 words to the death of the widow, and not to the 
 actual completion of the division. lb. 
 
 110. A remainder in fee in real estate, to take 
 effect upon the determination of two lives in 
 being at the time of the creation of the estate, 
 may be limited to a person not in being at that 
 time ; and an accumulation of rents during the 
 minority of such person, with contingent re- 
 mainder over, in case of his death under age, to 
 a person likewise not in being at the creation of 
 the estate, is also authorized. lb. 
 
 111. The estate of the first remainder-man, 
 during minority, is a vested estate, subject to be 
 defeated by condition subsequent ; and the ac- 
 cumulation is for liis benefit, within the meaning 
 of the statute, notwithstanding the limitation 
 over. lb. 
 
 112. With respect to personal property, a dif- 
 ferent rule obtains, and a limitation over, to take 
 effect at a period later tlian tbe termination of 
 two lives in being at the creation of the estate, 
 is void ; as is also a direction for an accumula- 
 tion, to commence, not within, but after such pe- 
 riod, lb. 
 
 113. Where, by will, such limitations are an- 
 nexed to a residuary estate,- partly real and 
 partly personal, the devise will be lield good as 
 to the realty and void as to the personalty. lb. 
 
 114. Wliere a contingent limitation over, the 
 effect of which would be to abridge a prior 
 estate, is declared void for remoteness, it does 
 not necessarily follow that the whole prior estate 
 is defeated, unless the general scheme of the 
 testator seems to require it ; but tlie person 
 whose estate would be defeasible, if s)ich con- 
 tingent limitation were valid, takes the estate 
 discharged of the condition or limitation over. 
 lb. 
 
 115. A will which devises property, real and 
 personal, to trustees, to receive tlie rents, issues 
 and profits, and directs that they be divided into 
 14 parts, a specified number of such parts to be 
 paid to each of certain persons named, and upon 
 the death of such person, to another person 
 named, then in being, the trust as to each part 
 to terminate at the expiration of two lives in 
 being at the time of the testator's death, is valid ; 
 and tlie fact that the due execution of the trust 
 will require some of the parts to remain in the 
 hands of the trustees after the trust had termin- 
 ated as to them, does not invalidate the trust by 
 creating an unlawful suspension of the power of 
 alienation. Sup. Ct., 1874, Meserole v. Meserole, 1 
 Hun, 66. 
 
 116. A power, vested by will in the executor, 
 to sell real estate after the termination of an 
 estate for years given to the testator's widow, 
 being a mere naked power of sale, does not ille- 
 gally suspend the power of alienation. Sup. 
 Ct., 1875, Blanehard v. Blanchard, 4 Hun, 287. 
 
 117. Trusts created by. A devise of prop- 
 erty to trustees " to be used and held for the 
 support," etc., of the cestui que trust, creates an 
 active trust and is valid. Ct. App., 1874, Kiah 
 y^Grenier, 56 N. Y. (11 Sick.) 220. 
 
 118. A bequest of a certain sum to four execu- 
 tors in trust to invest and keep invested, and to 
 
 apply the income to the use of one of them, 
 creates a valid trust. Com. App., 1872, Wetmore 
 V. Trusloto, 51 N. Y. (6 Sick.) 338. 
 
 119. It is not necessary to the validity of a 
 trust that the beneficiary be described by name ; 
 any other designation or description by which 
 he may be identified will do as well. — Seld, 
 therefore, that a legacy in trust for the support 
 of the rector, for the time being, of a certain 
 church, was valid. Ct. App., 1873, Holmes v. 
 Mead, 52 N. Y. (7 Sick.) 332. 
 
 120. Where, however, such bequest is part of 
 an entire scheme for establishing a church and 
 rectory, the principal object of which fails 
 through the invalidity of certain devises in the 
 will, the whole trust is vitiated. lb. 
 
 121. Where the objects of a trust, created by 
 will, as to charity, as to accumulation, as to the 
 limitation of more than two lives, and some 
 other provisions, are clearly void under our laws, 
 and those provisions are so connected with the 
 whole trust and dependent on their connection 
 with "the residue, that no part of the trust could 
 be carried out without working injustice between 
 the children of the testator, the objects of the 
 testator would be better carried out by declaring 
 the whole void than by sustaining only small 
 portions of the instrument. Sup. Ct., 1867, 
 Clemens v. Clemens, 60 Barb. 366. 
 
 122. A will which grants and devises the tes- 
 tator's estate to trustees for his grandchildren, 
 viz. ; " the children of my son A M L, and the 
 survivors of them, share and share alike, and 
 the children of my daughter E J S, deceased, 
 and the survivors of them, share and share alike, 
 to be paid to them as they become of age, and 
 in the meantime the income of. my said estate 
 shall be applied to the necessary support, main- 
 tenance and education of each of said children 
 under the care of said executors," — Held, to 
 create a valid trust, and not to contravene the 
 statute against perpetuities. Sup. Ct. Sp. T., 
 1875, Steven-son v. Leslei/, 49 How. 229. 
 
 123. The intention of the testator, as evi- 
 denced by the will, was to distribute his estate 
 among his grandchildren per stirpes and not per 
 capita. lb. 
 
 124. Where a will vests the Estate in a trustee 
 upon several independent trusts, some of which 
 are legal, while others are in contravention of 
 the statute regulating uses and trusts, or the 
 statutes against perpetuities, the estate of the 
 trustee will be upheld to the extent necessary 
 to enable him to execute the valid trusts, and 
 will only be void as to the illegal or invalid 
 trusts. Ct. App., 1875, Van Schuyver v. Mulford, 
 59 N. Y. (14 Sick.) 426. 
 
 125. A provision in a will by which the testa^ 
 tor gives to his wife the rents, incomes and prof- 
 its of his estate, real and personal, during her 
 life, to the extent necessary to her support, and, 
 in case they are insufficient, directs his executor 
 and trustee to make up the deficiency from the 
 body of the estate, is valid and will be sustain- 
 ed; notwithstanding by another and indepen- 
 dent clause he bequeathes the rents, income, and 
 profits after the death of his wife to his two 
 daughters during life, and after the death of his 
 wife and daughters gives the estate to the issue 
 of said daughters, which latter bequest is void 
 under the statute against perpetuities. lb. 
 
 126. A clause in a will, directing the executors 
 to sell the testator's real estate and convert all 
 his property into money, and to invest the pro- 
 ceeds for the purpose of accumulation, part of 
 it for five years and part for 10 years, and then 
 to pay certain specified legacies, and thereafter 
 
744 
 
 WILL. 
 
 , to divide the residue, if any, among other lega- 
 tees, implies a trust estate in the executors, and 
 limits their term to five and 10 years ; and such 
 trust is invalid under our statutes. Sup. Ct. 
 Sp. T., 1874, Bean v. Bowen, 47 How. .306. 
 
 127. The period at wliich the legacies are to 
 be paid, which are limited to take effect after a 
 prescribed period of accumulation, and to be 
 paid out of the accumulated fund as a part of 
 tlie subject-matter of the gifts, being too remote, 
 and the legacies dependent on a void trust, they 
 must fall. lb. 
 
 128. A gift is too remote unless, according to 
 the intention of the testator, some person must 
 necessarily be in existence with legal power to 
 dispose of the property within the period limited 
 by the rules of law. lb. 
 
 129. Notwithstanding the failure of "such im- 
 plied trust, legacies in other clauses of the will, 
 which are entirely severable from those which 
 are void and from the trust scheme, may be sus- 
 tained, as the statute against perpetuities only 
 cuts off estates which are limited to take effect 
 after the prescribed limit. lb. 
 
 130. In this case, as the trust must be declared 
 void for contravening the statute of perpetuities, 
 the real estate of the testator will descend to 
 his heirs-at-law, and the personal estate must be 
 distributed, except as to the valid legacies, 
 among the next of kin. lb. 
 
 131. To United States. A devise of lands 
 in this State to the government of the United 
 States, "for the purpose of assisting to discharge 
 the' debt contracted by the war for the sub- 
 jugation of the rebellious Confederate States," 
 is invalid under our statute of wills (2 R. S. 87, 
 sec. 3), which autliorizes devises only to natural 
 persons and to such corporations as are author- 
 ized by the law of the State to take by devise. 
 Sup. Ct., 1872, In matter of Fox, 63 Barb. 157 ; 
 AfE'd, S. C, 52 N. Y. (7 Sick.) 530. 
 
 132. Tlie word " person," as used in that stat 
 ute, does not include a State or nation. lb. 
 
 133. If such devise be considered as a trust in 
 the Unit^ji States, it is invalid for want of A 
 competent trustee to take. lb. 
 
 134. The doctrine of equitable conversion can- 
 not be applied to such a devise, so as to make it 
 the duty of the executors to sell the real estate 
 and convert it into personalty, in order to carry 
 out the intent of the testator, it not being made 
 the duty of the executors to sell in any event. 
 A mere discretionary power of selling produces 
 no such result. lb. 
 
 135. A power to them to sell lands cannot be 
 implied from a mere charging of debts on such 
 lands. lb. 
 
 136. Conatruction, in general. Where the 
 meaning of t)ie testator is apparent from the 
 language used, the plain import of the language 
 cannot be departed from, though it result in 
 rendering the will invalid. Ct. App., 1873, Van 
 Nostrand v. Moore, 52 N. Y. (7 Sick.) 12. 
 
 137. An intent inferable from the language of 
 a particular clause may be qualified or changed 
 by other portions of the will, evincing a different 
 intent. The substance and intent rather than 
 words are to control Ct. App., 1874, Hoppock 
 V. Tucker, 59 N. Y. (14 Sick.) 202; AfE'g S. C, 
 1 Hun, 132. 
 
 138. Where the general scheme of the will 
 shows that the testator intended that the issue 
 of all his children should take by representation, 
 the mere fact that he bequeaths one of the parts 
 into which his estate is divided "in equal pro- 
 portions share and share alike," to J H & W, 
 children of his deceased daughter, by name, will 
 
 not prevent the intention that they should take 
 as a class from'prevaiUng. lb.- 
 
 139. Election of devise. Where one who 
 had received a conveyance from one of two ten- 
 ants in common, of a specific portion of the 
 premises held by them in common, devised the 
 land to her grand-daughter, and bequeathed per- 
 sonal property of the value of $25 to the other 
 of such tenants in common, and he accepted the 
 same, — Held, that the doctrine of election of 
 devise was not applicable to the case, and such 
 tenant in common was not required to give up 
 his interest in the devised premises, it not ap- 
 pearing that the testatrix intended that he should 
 do so, and even if that was her intention, a bona 
 fide purchaser of the property without notice 
 would not be affected thereby, but the party 
 claiming under the devise would merely have a 
 right to proceed against him in equity. Sup. 
 Ct., 1874, Beal v. Miller, 1 Hun, 390. 
 
 140. In order to make the doctrine of election 
 applicable, it must be clear, beyond a reason- 
 able doubt, that the testator has intentionally as- 
 sumed to cUspose of the property of tlie benefi- 
 ciary, who is required, on ,that account, to give 
 up his own gift if he would retain the property 
 so attempted to be disposed of ; and it will not 
 be applied, where the testator had some present 
 interest in such property, thougli not entirely 
 his own. lb. 
 
 141. Favoring inheritance. The law favors 
 that construction of a will which does not tend 
 to the disinheriting of heirs, unless the intention 
 to do so is clearly expressed; and, where the 
 case is balanced, will prefer that meaning which 
 inclines to the side of the inheritance of the 
 children of a deceased child. Com. App., 1871, 
 Scott V. Guernsey, 48 N. Y. (3 Sick.) 106 ; Affi'g 
 S. C, 60 Barb. 168. 
 
 142. A will devised certain premises to the 
 testator's daughter, P 6, during life ; " then to 
 be equally divided amongst her now surviving 
 children, or any of them that may be alive at 
 her decease, or the heirs of any tliat may Vie 
 dead at the time of executing this my last will," 
 — Held, that the terms " at the time of execut- 
 ing this my last will," referred to the time when 
 the will should take effect, by vesting the estate 
 in possession upon the death of P G ; that the 
 term " heirs " was used in the sense of cliildren ; 
 and that the intent of the testator was, that the 
 children of P G, should take, it living at her de- 
 cease, or, if any were then dead leaving children 
 surviving, such children should take in place of 
 their parent. lb. 
 
 143. Intent to be sought. A bequest will 
 not be held void for uncertainty as to the legatee, 
 except when it is found impossible, either from 
 the words used alone or in connection with such 
 extrinsic evidence as would be competent, to 
 determine with reasonable certainty the person 
 or corporation intended. Ct. App., 1873, St. 
 Luke's Home v. Association far relief of Aged In- 
 digent Females, 52 N. Y. (7 Sick.) 191 ; Eev'g S. 
 C, 34 N. Y. Supr. (2 J. & Sp.) 241. 
 
 144. In case of a devise or bequest to a cor- 
 poration by a name which does not exactly apply 
 to either of two corporations claiming it, the 
 court must determine which of the two is best or 
 most nearly described by the name, or by the 
 description applied to it by the testator ; and if, 
 from the will and the charters of the two cor- 
 porations, the court can determine , which of the 
 two was intended by the testator, there can be 
 no resort to other evidence in aid of the inter- 
 pretation, lb. 
 
 146. In an action to determine which of two 
 
WILL. 
 
 745 
 
 corporations was entitled to a legacy to " The 
 Society, for the Belief of Indigent Aged Fe- 
 males," — Held, that the name of "An Association 
 for the Relief of Bespectable Aged Indigent 
 Females," more nearly assimilated to that used 
 in the will, than the name " St Luke's Home for 
 Indigent Christian Females," and the objects 
 of that corporation being more general than 
 tliose of the'other, were more in harmony with 
 the description of the one intended, and that the 
 testator halving, fl[ith reasonable accuracy, de- 
 scribed and named such corporation, it was not 
 competent to show by parol that an institution 
 of a di^erent name and character was intended, 
 lb. 
 
 146. Where a devise or bequest is equivocal 
 either as to the subject or the object, and the 
 meaning of the testator cannot be ascertained 
 by a construction of the will itself with the aids 
 allowed by law, and the intent of the testator 
 alone, as proved by extrinsic evidence, gives 
 direction and controls the gift, the intent may be 
 a question of fact which an appellate court can- 
 not review ; but when the question is one of the 
 construction of the will, it is a question of law, 
 arid every court to which it may be submitted is 
 entitled to the benefit of every circumstance 
 which the law permits to be taken into consider- 
 ation as tending to throw light upon the actual 
 meaning of the testator in the use of particular 
 words or terms. lb. 
 
 147. Invalid clauses to be considered. 
 Those clauses of a will declared invalid in law, 
 may yet be considered for the purpose of ascer- 
 taining the meaning of the testator in the use of 
 terms in other parts of the same instrument. 
 Ct. App., 1874, Kiah v. Grenier, 66 N. Y. (11 
 Sick.) 220. 
 
 148. Repugnant clauses. Where two 
 clauses in a will are so utterly irreconcilable 
 that they cannot possibly stand together, the 
 one which is posterior in position will be con- 
 sidered as indicating a subsequent intention, and 
 will prevail, unless the general scope of the will 
 leads to a contrary conclusion.- Ct. App., 1873, 
 Van Nostrand v. Moore, 52 N. Y. (7 Sick.) 12. 
 
 149. Although the later clause be void, it 
 must nevertheless be retained and considered 
 for the purpose of ascertaining the intentions of 
 the testator ; and for this purpose it is as effec- 
 tual, and its operation upon other clauses of the 
 will is the same, as though no legal obstacle 
 existed to its being carried into execution. lb. 
 
 150. Bequest in lieu of dower. Although 
 a will which gives to the testator's wife a portion 
 of the real estate, and an annuity for the main- 
 tenance of the wife and children, does not de- 
 clare such provisions to be in lieu of dower, an 
 authority to the executors to sell the real estate 
 not devised to the wife at a specified price, 
 shows an intention that they shall do so free of 
 dower, and is inconsistent with a claim for 
 dower, and consequently the widow is put to 
 her election, and her acceptance of the testa- 
 mentary provision defeats her dower. Ct. App., 
 1873, Vernon T. Vernon, 63 N. Y. (8 Sick.) 351; 
 Modifying S. C, 7 Lans. 492. 
 
 151. But the widow would be entitled to her 
 distributive share of a legacy which lapsed by 
 the death of the legatee, and of other personal 
 property not disposed of by the will. lb. 
 
 152. A bequest to the testator's wife of a sum 
 of money "in lieu of dower in my real estate, 
 for her support during her natural life, or as 
 long as she remains my widow, then her said 
 dower shall be transferred to my three children," 
 is specific, and gives the widow the absolute 
 
 title to the money, and the bequest over is void. 
 Sup. Ct., 1875, Smithv.'Van Nostrand, 3 Hun, 
 450. 
 
 153. The acceptance of an annuity bequeath- 
 ed to the testator's widow, " provided she re- 
 ceives and accepts that sum in lieu of dower," 
 does not affect her right, arising upon any 
 statute or from any other source, to the personal 
 property. Ct. App., 1873, Hatch v. Bassett, 52 
 N. Y. (7 Sick.) 369. 
 
 164. Where a widow has accepted the pro- 
 visions of a will, in lieu of dower, under a con- 
 dition requiring her to renounce all claim to 
 any share or interest in the estate eicept as 
 given by the will, the court cannot except from 
 the operation of such condition any part of the 
 estate, as, after acquired realty, or property at- 
 tempted to be disposed of, but the provisions 
 relating to which have failed for invalidity. Ct, 
 App., 1871, Chamberlain v. Chamberlain, iS N. Y. 
 (4 Hand,) 424. 
 
 165. Bequest of income. A general gift 
 of the income arising from personal pioperty, 
 making no mention of the principal, is squiva- 
 lent to a gift of the property itself. Ct. App., 
 1873, Hatch v. Bassett, 52 N. Y. (7 Sick.) 359. 
 
 166. Where, by a codicil to a will, in which 
 the testator had devised certain real estate in 
 trust with a direction that it be sold, the pro- 
 ceeds invested and the income applied to the 
 use, in equal shares, of three of his grand-chil- 
 dren during life, he modified such devise so as to 
 give upon the trust indicated only so much of 
 said real estate as should remain unsold at his 
 death, directing that it be sold at such time knd, 
 in such manner as the trustee might deem ex- 
 pedient, and in case the proceeds should not 
 amount to $30,000, then, that there be added 
 from the other portion of his estate a sum suf- 
 ficient to make up that amount, which should 
 be divided into three equal portions and held 
 and invested upon the same trusts declared in 
 the will, — Held, that, until a sale should disclose 
 a deficiency, the beneficiaries were entitled only 
 to the income from the land, and could not 
 claim out of the other estate a sum sufficient to 
 make that income equal to the interest on 
 $30,000. Ct. App., 1873, Fincke v. Fincke, 53 
 N.Y. (8Siek.) 528. 
 
 157. A will and codicil provided that the 
 interest, rents, issues and profits of that portion 
 of the estate which should be allotted to any 
 one of the testator's daughters, as directed in 
 the fifth article of his will, should by the trus- 
 tees be applied to the sole and separate use of 
 each daugliter respectively, for whom the same 
 should be holden in trust, and should be exempt 
 from the control and debts of her husband ; and 
 on receiving a receipt or discharge of any cestui 
 que trust, executed under her hand to tliem, 
 acknowledging a sum applied to her use, said 
 trustees should be absolved from any further 
 obligations, in any way or manner, to pay the 
 said sum, and nowhere provided for or made any 
 distribution of any accumulations. Held, that 
 it was the intention of the testator, that the 
 rents, issues and profits of the portion allotted 
 to any one of his daughters should belong to her 
 absolutely ; and that all the income derived 
 from any daughter's portion which had been 
 allowed to accumulate in the hands of the 
 trustees belonged to such daughter, and she was 
 entitled to claim payment thereof to her by the 
 trustees, upon presenting a proper receipt. Sup. 
 Ct. Sp. T., 1874, Bronson v. Bronson, 48 How. 
 481. 
 
 158. Where a testator willed to his wife the 
 
746 
 
 WILL. 
 
 " life use ot $10,000," directing his executors to 
 semi-annually pay to her the lawful interest of 
 said sum, (he same after her decease, to descend 
 to his heirs by her, or, if none, then to his son 
 Q, with alf the rest, residue and remainder of 
 his estate}— Seld, that this was a gift of the 
 use and income of $10,000, and not an annuity 
 of $700, payable semi-annually during life, and 
 that consequently the taxes upon the fund and 
 expenses qt the trust, should be paid from the 
 income initead of the principal. Ct. App., 1873, 
 Whitson V Whitson, 53 N. Y. (8 Sick.) 479. 
 
 159. A will whereby the testator devises to 
 his wife, without the- intervention of any trus- 
 tee, the whole income of his estate during her 
 life, joiniig lier as executrix with two executors, 
 and giviig them power " to lease, sell, convey 
 and dispose of " all or any of the real estate, but 
 not requiring them to do so, does not create any 
 trust in tlie executors ; and where they have not 
 exercised the power conferred upon them, but 
 the widow has received and appropriated the 
 income ill her individual capacity, an injunction 
 will not |ie at the instance of a remainder-man 
 to restrain the executors from paying over such 
 income to her until certain taxes on the estate 
 are paid. Sup. Ct. Chambers, 1874, Ctark v. 
 Coles, 4^ How. 266. 
 
 160. — in satisfaction of claim. A legacy 
 given ubon condition that the legatee shall make 
 no claim against the estate of the testator, does 
 not lapse upon the death of the legatee, with- 
 out issue, before the death of the testator, but 
 the personal representative of such legatee, 
 giving notice of acceptance of the legacy before 
 settlement of the testator's estate, and present- 
 ing no- claim against such estate, is entitled to 
 recover the amount thereof from the executor. 
 Sup. Ct., 1874, Cole V. Niles, 3 Hun, 326 ; Aff'd 
 by Ct. App. 
 
 161. — on condition of residence. A con- 
 dition in a devise of land, that the devisee " re- 
 moves to and resides on said land, and makes it 
 his permanent home, which he must do within 
 two yews after my decease," is fulfilled and for- 
 ever discharged if such devisee does, within the 
 two years, remove to and commence to reside 
 upon tlie land, with the bona fide intention of 
 making the same his permanent home ; and the^ 
 title thereby becomes vested absolutely in him, 
 and his subsequent removal from the premises 
 does not operate to defeat that title. Sup. Ct., 
 1871, Brundage v. Domestic and Foreign Miss. So., 
 60 Barb. 204. , ' 
 
 162. — vested or contingent. A Revise of 
 real and personal estate to the testator's children, 
 followed by a power in the executors to sell and 
 convey the real estate so devised, vests the title 
 in the children immediately on the death of the 
 testator, subject to be divested by a sale under 
 the power ; and in case one of the devisees dies 
 leaving a widow, before such sale, she is entitled 
 to be endowed of the lands so devised, or in the 
 proceeds thereof in case they are afterward 
 sold. Surr. Ct., 1872, Timpson's Estate, 15 Abb. 
 N. S. 230. 
 
 163. Under a will by which the testator de- 
 vises a farm, to his son and charges him with 
 the payment of specific money legacies to his 
 four daughters, and by a subsequent clause 
 directs that the daughters live with their brother 
 and mother, and have their support, and assist 
 in carrj'ing on the business, " and the money I 
 have above bequeathed to them to be paid in 
 one year after they shall severally marry or be 
 inclined to leave" their brother and mother and 
 live elsewhere, shows clearly the intent of the 
 
 testator to give his daughters vested legacies in 
 the sums named. Sup. Ct., 1875, Loder v. Hat- 
 field, 4 Hun, 36. 
 
 164. Where, in such a case, there is nothing 
 in the circumstances or condition of the legatees 
 that require any precaution as to payment to 
 them, but it appears that it may be advan- 
 tageous to the devisee or to the estate devised 
 to him, and that tlie postponement of payment 
 was for his benefit, the legacies will not lapse 
 by reason of the death of tli,e legatees before 
 either marrying or leaving their brother. lb. 
 
 165. Where a residuary estate is devised to 
 executors, in trust to receive and apply the rents 
 and income during the life of testator's wife, 
 and after her death to divide the same and con- 
 vey certain shares to his sons, retaining the re- 
 maining shares in trust to receive and apply the 
 rents for the use of his daughters, a provision 
 directing the income of a surplus to be accu- 
 mulated during the life of the widow being 
 void, that will v£st immediately in the sons and 
 the trustees for tlie daughters, as the persons 
 presumptively entitled to the next eventual 
 estate. Ct. App., 1871, Manice v. Manice, 43 
 N. Y. (4 Hand,) 303. 
 
 166. Under a will which directs the executor 
 to pay to a son of the testator the interest of 
 $1,000, annually for five years, and if, at the ex- 
 piration of that time, he shall have reformed, to 
 pay him the principal, such principal sum never 
 vests in the son if he dies before the expiration 
 of the five years, but. it goes to the residuary 
 legatees. Sup. Ct., 1874, Smith v. Rockefeller, 3 
 Hun, 295. 
 
 167. Devise in trust. A general devise to 
 executors in trust to appraise, divide and convey 
 the shares of the ultimate devisees, vests no 
 estate in the trustees, but is valid as a power in 
 trust. Ct. App.,- 1871, Manice v. Manice, 43 N. 
 Y. (4 Hand,) 303. 
 
 168. A devise ot lands to a trustee, in trust to 
 convey them to a certain corporation, upon cer- 
 tain specified uses and trusts, vests the title im- 
 mediately in the corporation and gives no estate 
 to the trustee ; but a bequest of personalty, in 
 trust to invest the same and receive and apply 
 the income to the use of such corporation, creates 
 an active trust in such trustee and vests in him 
 the title. Ct. App., 1871, Adams v. Perry, 43 N. Y. 
 (4 Hand,) 487. 
 
 169. A bequest of personal property, in trust 
 to receive and apply the income to. certain uses 
 forever, is void under the statute against perpe- 
 tuities, lb. 
 
 170. A trust in lands created for the purpose 
 of enforcing a forfeiture for non-compliance 
 with the conditions of a devise, is unauthorized 
 by statute and void. lb. 
 
 171. Where a portion of a devise in trust faUs ' 
 for invalidity, the valid portion will be sustained, 
 unless it appears that by such failure the whole 
 scheme of the testator will be thwarted. . lb. 
 
 172. Where a testator, by will, devised all his 
 estate to his exeeutor in trust, 1st, to apply the 
 net income to the support of his mother and 
 wife during the life of the former ; 2d, to pay 
 certain legacies upon the death of the mother ; 
 3d, to invest a certain sum for the benefit of 
 legatee named ; and, by the last clause, gave to 
 his wife all the rest, residue and remainder of 
 his estate, in lieu of dower, authorizing his said 
 executor to sell and convey his real estate at any 
 time after the death of his mother and pay over 
 the proceeds to his wife, and also to sell and 
 convert into cash all of his personal effects, — 
 Held, that the executor took the entire title of 
 
WILL. 
 
 747 
 
 all his estate upon the trusts specified ; and that 
 the power of sale was a valid power in trust, and 
 not inconsistent with the residuary devise ; the 
 intention being to give the wife a pecuniary 
 legacy. Ct. App., 1870, Skinner v. Quin, 43 N. 
 Y. (4 Hand,) 99. 
 
 178. A will which, after giving the testator's 
 wife tlie use of certain real and personal estate 
 for life, proceeds : " I hereby give, etc., uiito my 
 executors, all the rest, residue and remainder of 
 my real estate and personal estate, in trust 
 nevertheless, for the uses and purposes herein- 
 after named, to wit : Ist, to divide the same into 
 seven equal parts," etc. ; directing the parts to 
 be kept invested and the income paid over to 
 certain beneficiaries named ; creates a trust, and 
 gives to the executors for the purposes of the 
 trust, all the testator's real and personal estate, 
 not required to pay legacies, including that de- 
 voted to the use of his wife, but subject to her 
 life estate, and requires them to invest the same 
 so far as capable of investment, and divide and 
 apply the income for the benefit of the persons 
 named during life. Sup. Ct., 1874, House v. 
 Baymond, 8 Hun, 44. 
 
 174. A will which, first, gives all the testator's 
 estate to his trustees and executors, to be dis- 
 posed of as thereinafter, directed, and second, 
 gives certain premises to his wife, with power to 
 the executors to sell such premises for not less 
 than a sum specified, and invest tlie proceeds for 
 her benefit during life, does not give the execu- 
 tors any title or trust in the latter premises ; nor 
 can any implication arise from the contingent 
 power of sale and direction as to investment of 
 the proceeds, that the wife is to have only a life 
 estate, but it gives her a fee subject to the 
 power of sale. Ct. App., 1873, Vernon v. Vernon, 
 53 N. Y. (8 Sick.) 351; Modifying S. C, 7 Lans. 
 492. 
 
 175. A subsequent provision giving the wife 
 an annuity for the maintenance of herself and 
 children, payable by the executors out of the 
 testator's share of the rent of certain stores, or, 
 if that is insufficient, tlien from the interest of 
 other property, and authorizing the executors to 
 sell at a minimum price stated, gives to them a 
 valid trust to receive and apply the rents and 
 profits, and the legal title of such stores for the 
 purposes of the trust during the life of the wife ; 
 and (there being no residuary clause in tlie will), 
 the lands descend to the testator's heirs upon 
 his decease, subject to the trust estate. lb. 
 
 176. Where such will, after describing the tes- 
 tator's interest in the assets of a firm of which 
 he was a member, and giving several legacies to 
 be paid out of it, directed that the balance 
 might remain in the hands of his surviving part- 
 ners for five years, on interest, and that it then 
 be invested in good securities for the benefit of 
 his children, " to be distributed among them as 
 follows," followed by a bequest to each child of 
 $10,000 on arriving at the age of 24, but not 
 otherwise disposing of such balance, — Seld, 
 that it should be construed as giving his entire 
 interest in the assets of the firm, after paying 
 the specific legacies, to his children, and merely 
 postponing tlie payment of $10,000 of each 
 share until the beneficiary arrived at the age of 
 24 ; that the trustees were entitled to retain the 
 whole fund until the five years after tlie death 
 of the testator, and thereafter a sum sufficient to 
 enable them to perform the continuing trusts ; 
 and that the provision for leaving the fund in 
 the hands of the surviving partners was an au- 
 thority for investment merely, and did not pre- 
 vent them from withdrawing it ; and on a proper 
 
 case made the court might require security to be 
 given as a condition of their retaining it. lb. 
 
 177. Charging real estate. Although, as a 
 general rule the personal estate of a testator 
 furnishes tlie fund for the payment of debts and 
 legacies, yet it may be entirely exonerated, or 
 the real estate may be made to aid the personal, 
 if there be express direction to that effect in the 
 will, or if such be the clear intent of the testator 
 to be gatliered from its provisions. Ct. App.; 
 1874, Taylor v. Dodd, 58 N. Y. (13 Sick.) 335. 
 
 178. Where a testator, after making certain 
 specific bequests and devises, and giving a large 
 number of general legacies, some without pre- 
 scribed time of payment, and some payable at 
 periods varying from one to ten years, directed 
 tlie permanent investmen t of $7,000, the income 
 to be applied to the improvement of his ceme- 
 tery lot under the direction of two of his execu- 
 tors ; and then, without having made any provis- 
 ion for the payment of his debts, which with 
 tlie expenses of administration were nearly 
 sufficient to consume the whole of a large per- 
 sonal estate left by him after deducting the 
 specific bequests, authorized his executors to 
 sell any and all portions of his real estate, if in 
 their judgment to the advantage of his estate, 
 but not to sell any portions while producing 
 good and reasonable income, until necessary for 
 a final settlement and distribution, — Held, that 
 it was the testator's intent to make the real 
 estate aid the personal in the payment of lega- 
 cies, as otherwise there was no need of money 
 or of the power of sale ; and that the specific 
 legatees were entitled to their gifts, without 
 liability to abatement for the payment of debts, 
 lb. 
 
 179. Where a testator bequeaths his personal 
 estate to certain specified legatees, and then 
 charges the payment of his debts upon certain 
 designated real estate, or, if that shall prove in- 
 sufficient, then upon his other real estate, the 
 personal estate will, as between the devisees and 
 legatees, be discharged. Ct. App., 1871, Youngs 
 V. Youngs, 45 N. Y. (6 Hand,) 254. 
 
 180. A will, whereby the testator devised all 
 his real estate and directed his devisees to pay 
 certain legacies, and then, without any other 
 specific bequests, directs all his debts, liabilities 
 and funeral expenses to be paid out of his per- 
 sonal estate, and the rest and residue " not spe- 
 cifically devised and bequeathed," to be divided 
 among his sons and daughters, is to be construed 
 as giving his children all the personal property 
 after payment of debts, liabilities and funeral 
 expenses, and exonerating such property from 
 the payment of legacies. Sup. Ct., 1873, Salis- 
 bury V. Morss, 7 Lans. 359. 
 
 181. A direction to one of the devisees of real 
 estate to pay one of the legacies to the execu- 
 tors, partly within one year, to be paid over by 
 them, shows it to have been his design to charge 
 the real estate devised to such person, to the 
 relief of the personalty. lb. 
 
 182. The fact that the testator in another por- 
 tion of his will distinctly charged an annuity in 
 favor of his wife upon real estate devised to 
 other persons would not affect that construction. 
 lb. 
 
 183. Such charge will follow the land in the 
 hands of devisees of the original devisee, and 
 their grantees, especially where they are charge- 
 able with knowledge of the will, and of proceed- 
 ings involving that question. lb. 
 
 184. An action may be maintained against 
 such devisees or grantees by the executor of the 
 original devisee, in equity, for the recovery of 
 
748 
 
 WILL. 
 
 such legacy ; especially after he has been com- 
 pelled to pay it ; even though he might have 
 paid it out of the personal estate bequeathed to 
 such devisee, and neglected to do so. lb. 
 
 185. Equitable conversion. A direction 
 in a will to sell all the testator's real and per- 
 sonal property, is an equitable conversion of the 
 real into personal, and the whole estate is to be 
 regarded as personal. Ct. App., 1873, Hatch v. 
 Sassett, 52 N. Y. (7 Sick.) 359. 
 
 186. Wliere the conversion of real into per- 
 sonal estate is directed by v?ill for particular 
 purposes, it remains real estate until the time 
 arrives for it to be converted as directed. Sup. 
 Ct., 1874, Ross V. Roberts, 2. Hun, 90. 
 
 187. Where a testator gives to his wife the use 
 and control* of all his estate during her life, and 
 authorizes his executors, upon her decease, to 
 sell the same and convert it into money for divis- 
 ion among his legatees, the death of one of such 
 legatees after the testator, but before the widow, 
 does not destroy the legacy or affect its charac- 
 ter, but it remains a money legacy, to be dis- 
 tributed as personal estate. lb. 
 
 188. Real estate sold under a valid power of 
 sale contained in a will is to be deemed convert- 
 ed into personalty, and will pass by the will 
 of a minor heir or devisee of the estate ; but as 
 to property not subject to such powers of sale, 
 which is sold in partition proceedings between 
 the heirs, the proceeds going to infant claimants 
 retain their original character of realty, and 
 cannot be disposed of by will of such infants. 
 Ct. App., 1871, Horton v. McCoy, 47 N. Y. (2 
 Sick.) 21. 
 
 189. A testator devised the net income of his 
 real estate to his mother for life, directing a sale 
 tliereof by his executors immediately upon her 
 death and a division of the proceeds between 
 his two sisters named. His mother liaving died 
 first, and he having left, as his sole heirs, the 
 two sisters and a brother, — Held, that the real 
 estate should be regarded as converted into 
 money for the purpose of determining the right 
 to the income therefrom accruing prior to sale, 
 which would therefore go wholly to the sisters, 
 to the exclusion of the brother. Ct. App., 1872, 
 Monerief v. Ross, 50 N. Y. (6 Sick.) 431. 
 
 190. tinder a will which directs that the testa- 
 tor's son shall work his farm on shares for one 
 year and a half after his decease, and at the ex- 
 piration of that time his executors shall sell the 
 same and his personal property, and divide the 
 proceeds among his children, equity will regard 
 that duty as performed by them at the specified 
 time, and the whole property to have beoom'e 
 personal estate in their hands, and the rents and 
 profits of the farm will thereafter be a part of 
 the trust fund to be collected and distributed by 
 them. Sup. Ct., 1875, Shumway v. Harmon, 4 
 Hun, 411. 
 
 191. The doctrine of equitable conversion of 
 real into personal estate, is not applicable to a 
 case where the only purposes to which a power 
 of sale given by will to the executor could be 
 applicable were the payment of debts and lega- 
 cies, and the carrying into effect of a devise to 
 the executor of real estate in trust, and the per- 
 sonal estate is sufficient for the payment of the 
 debts, etc., and the devise has been declared in- 
 valid. Sup. Ct., 1872, McGarty v. Terry, 7 Lans. 
 236. 
 
 192. Even though the executor had been di- 
 rected to sell the real estate and distribute the 
 proceeds to the charitable uses indicated by the 
 invalid clauses of the will, the doctrine would 
 not apply. lb. 
 
 193. A mere power to sell and convey real 
 estate, given by a will to the executors, without 
 any positive direction so to do, does not operate 
 as an equitable conversion thereof. Sup. Ct. 
 Sp. T., 1871, McCarty v. Deming, 4 Lans. 440. 
 
 194. A will which make.s several bequests 
 which are void, and in a subsequent part gives 
 the executors power to sell and convey real 
 estate, evidently for the purpose of enabling 
 them to pay such bequests, cannot be construed 
 into a direction to sell and convert into personal 
 estate, so as to make it distributable among the 
 testator's next of kin ; consequently, such real 
 estate will descend to the heirs-at-Iaw who are 
 citizens, to the exclusion of those who are 
 aliens. lb. 
 
 195. Legatee intended. A direction by will 
 to the executors " to pay over to the officers of 
 the Protestant Episcopal Chuiffih, into the fund 
 to support the episcopacy of said church," cer- 
 tain moneys therein specified, construed, upon 
 extrinsic evidence that there were, at the time 
 of the execution of the will, trustees for the 
 management and care of a fund for the support 
 of the episcopate of the diocese of Central New 
 York, within which the testator resided, who 
 were incorporated for that purpose, and that the 
 testator knew of that fact and that exertions 
 were being made at the time of executing his 
 will, and had spoken of his intention to leave 
 money for that fund, as intending such trus- 
 tees, and that they were entitled to the be- 
 quest, notwithstanding proof that there were 
 other dioceses in this State having like trustees 
 and funds for the support of the episcopate. 
 Sup. Ct., 1875, Trustees of Fund for the support 
 of the Episcopate, etc, v. Colgrove, 4 Hun, 362. 
 
 196. "There being a latent ambiguity in the 
 will as to the devisees intended, parol evidence 
 and statements of the testator were admissible 
 to show who were intended. lb. 
 
 197. A testator, five of whose children were 
 living and five had deceased leaving issue, de- 
 vised real estate to his executors in trust to 
 receive and apply the rents and profits to the 
 use of his son W, during his life, and then to 
 sell and divide the proceeds among the living 
 children of W and the issue of those deceased ; 
 but if W died without issue surviving, then to 
 divide the same among the .testator's " surviving 
 children and the issue of such of them as may 
 have died leaving issue." W having died with- 
 out issue, — Held, that the devise over was not to 
 the children of the testator who survived him, 
 and their issue exclusively, but that the issue of 
 all his deceased children, living at the death of 
 W, took as primary legatees, without distinction 
 as between those whose parents died before an^ 
 those whose parents died after the making of the 
 will. Ct. App., 1875, Teed v. Morton, 60 N. Y. 
 (16 Sick.) 502. 
 
 198. The gifts being in money, the words of 
 survivorship are to be referred to the period of 
 division and enjoyment, unless there is a special 
 intent to the contrary; and legacies to a class 
 vest in those who answer the description, and 
 are capable of taking at the time of the distri- 
 bution, lb. 
 
 199. — children. Tinder a will which gives the 
 executor certain property in trust to apply the 
 income thereof to the use of a niece, during the 
 joint lives of such niece and her husband, and 
 after the death of either, to the use of the sur- 
 vivor and of the children of such devisees, during 
 the life of such survivor, and upon his or her 
 decease to divide the trust estate among the 
 children of such niece who may then be living. 
 
WILL. 
 
 749 
 
 and the lawful issue of any who may then be 
 dead, per stirpes, the Word children incluties 
 
 frandchildren. Sup. Ct., 1875, Bourne v. Under- 
 ill, 4 Hun, 130. 
 
 200. Where a codicil, in express terms, revokes 
 a disposition made by will, the same special or 
 general intent cannot be ascribed to the testator 
 in making a substituted proTision, which he 
 had in making the original one. Ct. App., 1873, 
 Pierpont v. Patrick, 23 N. Y. (8 Sick.) 591. 
 
 201. A testator, after making certain specific 
 bequests, gave the residue of his estate to the 
 children of his two brothers and sister, one- 
 third part to each family, directing that the 
 debts owing to him by his brothers, his sister 
 and their children, should be deducted from the 
 share given to their children, respectively. By 
 a codicil he, in terms, revoked this provision of 
 the will, and instead thereof, gave to each of the 
 children of his said brothers and sister the sum 
 of $3,500, subject, however, to the debts of the 
 several families as provided in his will, the resi- 
 due of his estate being given to one of his 
 nephews, — Held, that the intention indicated in 
 his will to distribute the property per stirpes, and 
 to families and classes rather than to his neph- 
 ews and nieces as individuals, was changed by 
 the codicil, and that each nephew or niece took 
 a legacy of $3,500, charged with his or her own 
 indebtedness and a proportional share of the in- 
 debtedness of his or her parent. lb. 
 
 202. — heirs. A devise of land to the testa^ 
 tor's son J "during his natural life, but if he 
 leaves no legitimate heirs," then to the testator's 
 son D, his heirs and assigns forever, is, by im- 
 plication, a devise to the legitimate heirs of J, if 
 any; and the terms "legitimate heirs" are to be 
 construed as meaning children of J, or their de- 
 scendants, and not his heirs general. Sup. Ct., 
 1872, Prindle v. Beueridge, and Lytle v. Same, 7 
 I/ans. 235. 
 
 203. Such devise was to the children of J, or 
 their descendants living at the death of J, and 
 determinable at his death if no such children or 
 descendants were then living. An estate-tail, 
 determinable on the eventual failure of issue, 
 indeterminate as to time, was not intended 
 thereby; and consequently J did not, under the 
 statute, acquire an absolute fee. lb. 
 
 204. The devise over to D is therefore good 
 as an executory devise, to take effect upon J's 
 death leaving no surviving issue. lb. 
 
 205. A wiU provided that, in case one L should 
 die leaving " a widow, heir or heirs " they should 
 take for life, and after the decease or marriage 
 of the widow, and the decease of the heirs, then 
 the property should go to one R Q. Held, that 
 from the language and limitations mentioned, 
 the word " heirs" should be construed " heirs of 
 the body " and would not include collateral heirs. 
 Ct. App., 1874, Kiah v. Grenier, 66 N. Y. (11 
 Sick.) 220. 
 
 206. Where a legacy is given to the " lawful 
 heirs " of a person named, which person is living 
 at the date of the will, the primary legal meaning 
 of the word " heirs " will be given to that word, 
 unless the context shows that it was used in a 
 different sense. Ct. App., 1874, Oushman v. 
 Horton, 59 N. Y. (14 Sick.) 149 ; Modifying S. C, 
 1 Hun, 601. 
 
 207. A bequest of the use of a certain sum to 
 P for life, and after her death the principal sum 
 to " the lawful heirs of M," is not void, although 
 M survives both the testator and P, nor does it 
 lapse, but it does not vest until the death of M, 
 when it can be determined who are his heirs, 
 and the residuary legatee is entitled to any 
 
 interest accruing thereon between the death of 
 P and that of M. lb. 
 
 208. — legatees as a class. Where the 
 whole will taken together shows the intention 
 of the testator to treat certain legatees as a class, 
 e.jf., where he divides his estate into as many 
 parts as he has children, giving to each living 
 child one share, and, after taking a specific 
 legacy out of one share, giving the remainder 
 thereof in equal proportions, share and share 
 alike, unto the children of his deceased daughter, 
 the fact that he names such children will not 
 have the effect to prevent his evident intention 
 to treat them as a class from prevailing ; and 
 the death of either of them before the testator 
 will work a survivorship in favor of the others. 
 Sup. Ct., 1874, Hoppock v. Tucker, 1 Hun, 132 ; 
 Afl'd by Ct. App. 
 
 209. A devise of real estate was to the children 
 of M, of whom there were seven living at the 
 time of the execution of the will ; but, prior to 
 the testator's death, all hut two deceased, some 
 leaving issue. Held, that the devise was to a 
 class, and only the two surviving children took 
 under it, to the exclusion of the issue of the 
 deceased children. Com. App., 1872, Magaw v. 
 Field, 48 N. Y. (3 Sick.) 668. 
 
 210. Peculiar provisions. A will by a 
 testator who died in the city of New York in 
 1858, leaving a widow and two sons, his only 
 heirs-at-law, whereby he made the widow his 
 executrix, and gave her all his estate during life 
 or widowhood, and provided that " should my 
 widow marry again she will be entitled to and 
 receive from my estate, should she demand it, 
 $3,000, — the possession and management of the 
 estate at her second marriage to pass from her 
 hands and to be transferred to my sous, subject 
 to the following restrictions : 1. The principal 
 to remain entire until my son W shall have 
 reached the age of 40 years, which will be in 
 February, 1866. Should both my sons die before 
 their mother, leaving no children, then at her 
 death the estate shall be sold and the proceeds 
 divided into two equal parts, the one-half to my 
 widow, to be distributed as she may have by 
 will directed, the other half to be shared equally 
 by the Am. B. So. and by the Am. C. So.," is to 
 be construed not as suspending the absolute 
 power of alienation of the estate until 1866, 
 which would be within the prohibition of the 
 statute because it might possibly extend beyond 
 two lives then in being, but as fixing that limit- 
 ation only in case the widow remarried and the 
 son W attained the age of 40 years, in which 
 case it would not be within that prohibition. 
 Sup. Ct. Sp. T., 1873, American Bible So. v. Stark, 
 45 How. 160. 
 
 211. Upon the death of the two sons unmar- 
 ried and without issue, the widow surviving 
 them and having never remarried, being a tenant 
 for life, took under the will a general and bene- 
 ficial power to devise the inheritance of one un- 
 divided half of the estate, not accompanied by 
 any trust, or affected by any remainder limited 
 thereon, and under the provisions of the statute 
 (1 E. S. 732, sees. 81, 82, 83), she became enti- 
 tled to an absolute fee in such undivided one- 
 half, and could convey the same. lb. 
 
 212. She could not, however, partition the 
 estate of her own will/ without the concurrence 
 of the other parties interested, and therefore a 
 deed by her purporting to convey the whole 
 interest in a portion of the estate, although not 
 void, would convey only her undivided One-half 
 interest and the portion so conveyed would be 
 subject to sale under the will after her death, 
 
750 
 
 WILL. 
 
 and her grantee would be entitled to one-half 
 the net proceeds thereof. lb. 
 
 213. In this case, there being no executor 
 trustee or other person in life, having power to 
 sell the lands under the will, it was ordered that 
 the whole be sold by a referee, and the net pro- 
 ceeds distributed, one-quarter to each of the 
 societies named, one-half of the net proceeds of 
 the portion so conveyed to the grantee thereof, 
 and the remainder to be paid into court to await 
 its further order. lb. 
 
 214. Under a will, which directs that all the 
 residue of the testator's estate be divided equal- 
 ly among his children, and, in case of their 
 death before him, among their lawful issue per 
 stirpes ; and that his executors cause the portion 
 of his daughters to be secured to them " for their 
 separate use during their natural lives, free from 
 the control of any husband, and in case of their 
 dying without issue, such portion of their said 
 property as may remain at the time of her or 
 their death, shall revert to her or their surviving 
 brothers and sisters, or their issue in case of 
 their death, as hereinbefore provided for ; sub- 
 ject, however, to the riglit of such daughter to 
 dispose of one-half of such property by will," — 
 and a codicil whereby, after reciting that there 
 may be some obscurity in his will, as to the por- 
 tions given his children, he devises to his daugh- 
 ters " an estate for life, remainder to the lawful 
 issue of each respectively, if any sucli they 
 leave, in fee simple and absolutely, subject to 
 the right of my said daughters to dispose of one- 
 half of theinishare by will, as in my said last 
 will and testament provided, and also subject, 
 however, to tlie power in trust to sell and con- 
 vey given to my executors. In case any of my 
 said daughters die witliout leaving issue, then 
 such portion of her share as she shall not have 
 devised or bequeathed, as herein or therein pro- 
 vided, shall pass to her or their brothers and 
 sisters, or to their issue, in case of their death, 
 as in said will provided ; " each daughter takes an 
 estate for life in her share, with no right to con- 
 trol or reduce the capital except by her will ; 
 and the court has power to appoint a trustee for 
 the protection of the daughters and those in 
 remainder. Sup. Ct, 1875, Livingston v. Murray, 
 i Hun, 619. 
 
 216. A provision in a will, that " unless I shall 
 purchase a farm for my said grandson's use dur- 
 ing my lifetime, then I hereby authorize and 
 
 direct my executors to purchase, with funds 
 
 belonging to my estate, a farm of the value of, 
 
 etc., and to allow my said grandson to have the 
 use and income thereof, and the management 
 thereof, for and during his natural life. If I 
 shall make such purchase during my lifetime, 
 then my executors shall not purchase said farm 
 as herein required, but my grandson shall have 
 the use," etc., — Held, inoperative and void, be- 
 cause it does not create a valid power, or a 
 power in trust, and is too vague and indefinite 
 to be carried into effect. Sup. Ct, 1873, Henly 
 V. Fitzgerald, 66 Barb. 508. 
 
 216. Under provisions in such will directing 
 that the testator's grandson should have and 
 enjoy the net income of the residue of the entire 
 estate during his natural life, after he became 
 14 years of age; and in case he should leave 
 him surviving lawful issue, then such issue to 
 become seized of the estate, otherwise the prop- 
 erty to be divided among the testator's sisters ; 
 creating the executors trustees, and as sucli 
 charging them with the care and control of the 
 estate during the lifetime of such grandson, with 
 a direction to pay over the net income thereof 
 
 to his guardian after he should become 14 years 
 of age, and until he should arrive at the age of 
 21, and after that to pay such net income to the 
 grandson during life ; and until he should reach 
 the age of 14 to expend such portion of the 
 income as they should deem necessary toward 
 his education and support ; — HM, that the ex- 
 ecutors, as trustees, were charged with the care 
 and control of the estate, and were to keep the 
 same invested during the natural life of the 
 grandson, and pay over the income in accordance 
 with such directions. lb. 
 
 217. Power in trust. A provision in a will 
 which devises personal property and the use of 
 a farm to the testator's wife and two of his 
 children, " the personal property and use of 
 said farm to be under the exclusive control and 
 management of my wife, without interference 
 by any person whatever," creates a valid power 
 in trust in the wife. Sup. Ct., 1875, Blanchard 
 V. Blanchard, 4 Hun, 287. • 
 
 218. Power to sell. Under an authority 
 given by will to the executors to sell the tes- 
 tator's real estate whenever they and his wife, 
 who was also executrix, unanimously thought 
 such sale would be advantageous to the estate, 
 the executors surviving after the decease of the 
 wife can sell and convey such real estate. Sup. 
 Ct., 1874, House v. Raymond, 3 Hun, 44. 
 
 219. Property devised. In the absence of 
 a general, unlimited devise, there must, in order 
 to pass after-acquired real estate, be words in a 
 will indicating the intent of the testator that it 
 should operate upon such property. Com. App., 
 1873, Quinn v. Hardenbrook, 54 N. Y. (9 Sick.) 83. 
 
 220. If there be two equally probable inter- 
 pretations of a will, that should be adopted which 
 prefers the kin of the testator to strangers. 
 Accordingly, where a testator devised to his 
 wife, all the real estate " now owned " by him, 
 — Held, that it did not pass lands purchased by 
 him after the execution of the will, but they 
 would go to his legal heirs. lb. 
 
 221. Under 2 R. S. 57, sec. 5 '(2 Edm. Stats. 
 58), which changes the common-law rule, a re- 
 siduary clause expressly disposing of all the tes- 
 tator's real estate not before specifically devised, 
 will carry after-acquired lands ; and especially 
 will this be the effect where the testator, in the 
 introductory clause, declares his intention to dis- 
 pose of such property as he shall " leave behind " 
 him. Ct.' App., 1871, Youngs v. Youngs, 45 N. Y. 
 (6 Hand,) 254. 
 
 222. Where, by a will, certain lands are specif- 
 ically devised to one for life with remainder in 
 fee to his children, and, by the residuary clause, 
 the testator devises and bequeaths all the rest, 
 residue and remainder of his estate, real and 
 personal, " whatsoever and wheresoever situate 
 and not herein and hereby specifically devised 
 or bequeathed," to persons named therein, — 
 the real estate so specifically devised by will, on 
 the death of the devisee during the life of the 
 testator, without issue, pass to the residuary de- 
 visee and not to the heirs-at-law. lb. 
 
 223. Where a will devised all the testa- 
 tor's estate to trustees, to apply certain por- 
 tions of the rents, issues and profits to the use of 
 certain persons named, during the life of his wife, 
 and upon her death, to divide the residue of the 
 estate, after payment of specified legacies, among 
 persons named as residuary legatees, — Held, 
 that, it not appearing that there would be any 
 residue on the division of the estate and payment 
 of the specific legacies, the residuary legatees 
 were not entitled to have the accumulation of 
 rents, otherwise undisposed of, paid over to them 
 
WILL. 
 
 751 
 
 during the life of the wife. Sup. Ct., 1874, 
 Hutchins v. Merrill, 1 Hun, 476. 
 
 224. A devise to the testator's sou N, of " the 
 Kittle farm, as it is now occupied by him, to be 
 held and enjoyed by him for life, and after the 
 death " of said N, " the said Kittle farm to his 
 children," passes the whole of the farm known 
 as " the Kittle farm " owned by the testator at 
 the date of his will and athis death, although it 
 appears that before the date of such will the 
 farm had been divided by a surveyor's line, and 
 N occupied on one side of that line, but it does 
 not clearly appear who occupied the other side. 
 Sup. Ct., 1869, Sharp v. Dimmick, 4 Lans. 496. 
 
 225. Where the intention of the testator is ap- 
 parent and the subject of the gift can be clearly 
 ascertained, any additional description, not in- 
 serted as an evident restriction or limitation of 
 the devise, which is found to be erroneous, will 
 be rejected as surplusage. Sup. Ct. Sp. T., 1874, 
 Kendall v. Miller, 47 How. 446. 
 
 226. Thus, a devise of " the farm on which J 
 r now lives, bounded easterly and west- 
 erly by lands owned by H," will be construed 
 as intended to include all the land occupied by 
 
 JF under an agreement with the testator, for 
 
 farming purposes, although the same consists of 
 three several pieces or purchases, adjoining each 
 other, the largest of which contains all tlie build- 
 ings, and oijly that and the smallest are bound- 
 ed on the east and west by lands of H, and the 
 other piece extends beyond them in a long nar- 
 row strip. lb. 
 
 227. Where a will contained the following 
 devise, " to my son A the farm on which I now 
 live and cultivate, and the meadow and wood- 
 land attached to it, together with the messuages 
 thereon," and the testator owned two farms, not 
 far from one of which, his homestead farm, em- 
 bracing a piece of woodland within its bound- 
 aries, was another wood lot always used witli 
 that farm for the purpose of supplying it with 
 fencing and fuel, and connected with it by a pri- 
 vate way procured for the specific purpose of a 
 passage between them, a small part of wliich 
 only had been cleared and a house erected there- 
 on, — Held, tliat sucli detached wood lot passed by 
 the devise. Ct. App., 1874, Underhill v. Vandet-- 
 voort, 5b N. Y. (11 Sick.) 242. 
 
 228. A will whereby the testator devises to 
 his wife an annuity in addition to her " right of 
 dower," and tlien devises all his real estate, ex- 
 cept his " wife's dower," to his son J on condition 
 that he pay certain legacies ; and then devises 
 all the rest, residue and remainder of his estate, 
 including his " wife's right of dower after lier 
 decease," to his grandchildren, and authorizes 
 his executor to sell his " wife's right of dower 
 after her decease," for the purpose of dividing 
 the same ; must be construed as using the terms 
 " riglit of dower " to mean the third part of the 
 real estate, which the wife was entitled to the use 
 of during life, and the grandchildren are entitled 
 to that portion of the real estate on her decease. 
 Sup. Ct., 1874, Robertson v. Siliman, 3 Hun, 244. 
 
 229. A legatee of railroad stock is not entitled 
 to any share of, or interest in, scrip issued to the 
 
 -testator before his death, for dividends on such 
 stock, that being personal estate, entirely dis- 
 connected from the stock. Sup. Ct, 1873, Brun- 
 dage v. Brundage, 65 Barb. 397 ; AfE'd, S. C, 
 60 N. Y. (15 Sick,) 544. 
 
 230. Such a legatee is entitled to dividends 
 made to stockholders after tlie death of the tes- 
 tator, although having only a life interest in tlie 
 stock ; but not to any earned and declared be- 
 fore, but paid after, that time. lb. 
 
 231. If there are no stocks or bonds with 
 which to pay specific legacies thereof, it is the 
 duty of the executors, either to purchase and 
 deliver them to the legatees, or pay them the 
 market value thereof. lb. 
 
 232. A legacy of the surplus after paying all 
 debts, legacies, bequests, and devises, and funer- 
 al expenses, must be construed as refercing to 
 personal estate only, and not to a house and lot 
 purchased after the making of the will. lb. 
 
 233. Quantum qI interest. Where it will 
 made in 1828 devised one-half of a certain house 
 and lot to the testator's wife for life, an(^ the 
 otlier half to his son, without expressing the 
 estate given, but contained a clause as follows : 
 "At the decease of my wife, the half of the 
 house — which I now leave to her, it is my wish 
 it should then become the joint property of my 
 son and daughter, and it is my will and desire 
 that none of the above mentioned property 
 should be sold or disposed of in any way, but 
 pass to the heirs of my cliildren unincumbered, 
 and, in case one of my children siiould die 
 without issue, their share of the property to pass 
 to the survivor, and should both die without is- 
 sue, my property to pass to my nearest heir ;" 
 — Held, that the rule in Shelly's case applied, 
 and that under it tlie son took a fee in one-half 
 of the property, and the son and daughter each 
 took a fee in the other half, upon the death of 
 the widow, and took it as tenants in common, 
 tlierS being no words in the will expressly de- 
 claring that it should pass in joint tenancy. N. 
 Y. Supr. Ct. Sp. T., 1874, Bond v. McNiff, 38 N. 
 Y. Supr. (6 J. &Sp.) 83. 
 
 234. Under a clause in a will whereby the tes- 
 tator devises to his wife " the use of my home- 
 stead, and all the personal property therein at 
 my decease, except," etc. " I also give, devise 
 and bequeath unto her during her natural life 
 the use of $20,000," the wife takes only a life 
 estate in the homestead and in the personal 
 property therein. Sup. Ct., 1874, House \'. Ray- 
 mond, 3 Hun, 44. 
 
 235. A testator, by the primary clause of his 
 will, gave to his daughter the whole of his estate 
 except such sums or portions as might be neces- 
 sary to pay certain legacies named, and then 
 after enumerating them, proceeded to give, de- 
 vise and bequeath to such daughter, all his re- 
 maining property " for her support and comfort, 
 to be held and controlled by her and at her death 
 to pass to her heirs, and if she leaves no heirs, 
 to be disposed of by her will " as she might 
 deem proper, — Held, that the residuary clause 
 qualified the prior gift, and the daughter took 
 only an estate for life, with remainder to her is- 
 sue living at her death, and with power in de- 
 fault of issue to appoint the fee by will. Ct. 
 App., 1873, Taggart x. Murray, 53 N. Y. (8 Sick.) 
 233. 
 
 236. In such case, a conveyance by the 
 daughter, together with a release by her living 
 children, could not pass an absolute fee in the 
 land devised ; because the title would be subject 
 to the contingency that children might thereaf- 
 ter be horn to her, in which event they would 
 take an interest as purchasers under the will, 
 lb. 
 
 237. Under the statutes in force in 1824, a de- 
 vise of land to the testator's grandson, without 
 vjprds of inheritance, conveyed only a life estate, 
 and a subsequent clause in such will by which 
 he gives to his widow one-third of his realty, 
 adding, " and which at the time of her decease 
 shall be, and the same is hereby declared to be 
 for the use and at the disposal of those to whom 
 
752 
 
 WILL. 
 
 it Is atove devised," cannot be construed as 
 enlarging the devise to the grandson to a fee. 
 The word which refers only to the one-third de- 
 vised to the widow. Sup. Ct., 1871, Christie v. 
 Gage, 5 Lans. 139. 
 
 238. A will which devises and bequeaths to 
 the two children of the testator "all the real and 
 personal estate of which I may die possessed, 
 share and share alike, directs the executors to 
 rent his house and lot, and apply the rent to the 
 support of the children, expressing the desire 
 that the property may not be mortgaged or sold 
 until his youngest child has attained the age of 
 twenty-one years, and provides " in case of the 
 death of either of my said children, I devise my 
 whole estate to the survivor ; and in case of the 
 death of both, I devise all my property, or what 
 may be left, to J and M, sons of my brother B, 
 of, etc., or the whole to the survivor of them," 
 carries the fee of the property to the two chil- 
 dren of the testator, liable to be defeated only by 
 the death of both during the testator's lifetime, 
 and subject to the trust in the executors. Sup. 
 Ct., 1872, KeUy v. Kelly, 6 Lans. 443. 
 
 239. Both the children having survived their 
 father, no estate passed by the will to the 
 nephews. lb. 
 
 240. Where the gift to the first taker is abso- 
 lute in its terms, or where only the use of the 
 property is given, and it is of such a nature that 
 its use is its consumption, the gift will be deemed 
 absolute, and a gift over will be void for re- 
 pugnancy. Sup. Ct., 1875, Bell v. Warn, i Hun, 
 406. 
 
 241. Where a will bequeaths a certain sum to 
 the testator's daughter absolutely, but a codicil 
 attaches conditions to the bequest, that she have 
 only the income from it, unless the principal or 
 some portion of it is needed for her support, the 
 gift is thereby changed from an absolute to a 
 qualified one, and a limitation over of any re- 
 mainder of the principal sum is valid. lb. 
 
 242. Vested remainder, vrhen created. A 
 devise of land to A for life, and " after her death 
 to the heirs of her body, whom she shall leave 
 her surviving," gives to her children, during her 
 life-time, a vested remainder in fee, liable to 
 open and let in after-bom children, and, also, to 
 be defeated by the death of any devisee before 
 the decease of A. Sup. Ct., 1874, Chism v. 
 Keith, 1 Hun, 589. 
 
 243. Under a will by which the testator 
 devises certain property to his wife for life, 
 " and after her decease, that>^U my estate be 
 equally divided between my two children, and to 
 the survivor or survivors, share and share alike, 
 and to their heirs then surviving," the testator's 
 children take vested interests at his death. Sup. 
 Ct., 1874, Weed v. Aldrich, 2 Hun, 531. 
 
 244. The words of survivorship refer to the 
 death of the testator, and not to that of the life ten- 
 ant, unless a different Intent on the part of the 
 testator appears from other parts of the will. lb. 
 
 245. A devise of land to one person for life, 
 and, at his death, to his sons and their heirs for- 
 ever, but if one dies without leaving any child 
 or children, the survivor to have the whole for 
 himself and his heirs forever, gives to each of 
 such sons a vested remainder in fee, subject to 
 be divested by his death without issue. Sup. 
 Ct, 1872, Howell v. Milts, 7 Lans. 193 ; Afi'd, 
 S. C.,56N.Y. (llSick.)226. 
 
 246. Under a will which gives to the testator's 
 wife and two youngest children, all his personal 
 property, and the use of a farm until June 29, 
 1890, and directs the executor, within two years 
 after that date, to sell the farm and divide the 
 
 proceeds among persons named, the widow and 
 children take an estate for years in such farm, 
 and the remainder therein is vested in the re- 
 siduary legatees, subject to the execution of the 
 power of sale. Sup. Ct., 1875, Blanchard v. 
 Blanchard, i Hun, 287. 
 
 247. A will which gives to the testator's widow 
 a life estate in all his real property, and " from 
 and after " her decease gives the same to all his 
 " children, and to their heirs and assigns, to be 
 equally divided share and share alike ; and 
 sliould any of my children die and leave lawful 
 heirs, such heirs to receive " the parent's por- 
 tion, creates a vested remainder in fee in the 
 children, not subject to be defeated by their 
 death after that of the testator, but before that 
 of the widow, but to take effect only upon the 
 death of the widow. Sup. Ct, 1872, Livingston 
 V. Green, 6 Lans. 50 ; AfE'd, S. C, 52 N. Y. (7 
 Sick.) 118. 
 
 248. The clause " should any of my children 
 die and leave lawful heirs," refers to their death 
 during the life of the testator, and furnishes no 
 evidence of an intent that the remainder should 
 not vest. lb. 
 
 249. Even if such clause should be held to re- 
 fer to a death after that of the testator, and be- 
 fore that of the, widow, it could only apply to 
 the case of a child dying and leaving children, 
 and would not affect the rights of the devisee of 
 one of the children, where all of them died 
 childless. lb. 
 
 250. The omission to provide for the case of 
 any of the children dying without issue, does not 
 affect that construction of "the will. lb. 
 
 251. A subsequent clause declaring that upon 
 the death of the wife and a division of the 
 estate among the children, as therein provided, 
 their shares should be an estate in fee, and they 
 were empowered to convey, etc., does not indicate 
 an intention that the title in remainder shall not 
 vest until such division. lb. 
 
 252. Under a will whereby the testatrix de- 
 vised the use and income of all her estate 
 to two of her daughters, so long as they 
 should live and remain unmarried, and upon 
 their death or marriage, all the rest, residue 
 and remainder to certain children named, 
 or to the survivor or survivors of them, 
 and "in case any of my children die, having 
 issue, then I will and direct that the child or 
 children of such son or daughter of mine shall re- 
 ceive the same as the parent of such grandchild 
 would have received if living," the children 
 secondly named in the will, who were living at 
 the death of the testatrix, took a vested estate in 
 remainder, immediately upon her death. Sup. 
 Ct, 1874, Hopkins v. Hopkins, 1 Hun, 352. 
 
 263. A will whereby the testator directed his 
 executors to turn his estate into money, invest 
 the same, and apply the income to the support 
 and maintenance of his wife and children, and 
 then proceeds : " I will, devise, and bequeath 
 unto my said children all my estate both real and 
 personal, of all kinds whatsoever, to be equally 
 divided between them, share and share alike, 
 upon the event of the death of their mother, my 
 said wife," gave to the children vested re- 
 mainders immediately upon the death of the 
 testator, and the children having all died intes- 
 tate without widow or issue, before the death of 
 the mother, she took all their property as their 
 next of kin. Sup. Ct., 1874, Hays v. Gourley, 1 
 Hun, 38. 
 
 254. Under a will which devised all the testa- 
 tor's real estate to his son during life, and then 
 to be divided between his grandchildren, share 
 
WILL. 
 
 753 
 
 and share alike, whether born before or after his 
 decease ; and in case any of said grandchildren 
 should die before the death of his son leaving 
 issue, then such issue to take their parent's share, 
 — Held, that the devise of the remainder being 
 to a class, was to be regarded as vested, although 
 all the persons who might take were not then 
 ascertained or in esse ; that each grandchild took 
 a vested interest in remainder, in fee, subject to 
 open and let in after-born children; and con- 
 sequently that upon the death of one of such 
 grandchildren without issue, before the termina- 
 tion of the life estate, his share did not go to the 
 other grandchildren, but to his father as his heir- 
 at-law. Sup. Ct.,1870,Sm!'Zey v.Bai7ey,59Barb.80. 
 
 255. No degree of contingency of an enjoy- 
 ment in possession by the remainder-man of an 
 estate limited to him, affects the question of its 
 being vested or contingent. lb. 
 
 256. If a devise over is, for any reason, incapable 
 of taking effect and therefore inoperative, it 
 leaves the estate in the first taker, the same as if 
 the devise over had not been attempted. lb. 
 
 257. When devise lapses. The intent of 
 2 R. S. 66, sec. 52, is to prevent the lapse of a 
 devise or bequest to a descendant of the testa- 
 tor, where the proposed devisee or legatee shall 
 have died before the testator, and shall have 
 left lineal descendants, who are living at the 
 testator's death; and it has that effect even 
 where such descendant may have died before the 
 making of the will in which he is named, and 
 the testator may have heard a rumor of his death. 
 Sup. Ct., 1871, Barnes v. Huson, 60 Barb. 598. 
 
 258. Where a testator devised certain real 
 estate to his widow for life, remainder to an 
 adopted son and his heirs, charging such real 
 estate with the support of a person named dur- 
 ing her natural life, and the payment of certain 
 other bequests, and such adopted son died in the 
 lifetime of the testator, leaving ten children, 
 juery, whether the devise lapsed upon his death 
 or vested in his children, to the exclusion of the 
 heirs of the testator. Sup. Ct., 1875, Thurber v. 
 Chambers, 4 Hun, 721. 
 
 259. Wiiether the word "heirs," as used in 
 such will is equivalent to lineal heirs, query f lb. 
 
 260. Where S, testator devised one-third of his 
 estate to his wife, one-third to a corporation 
 which, under the provisions of the statutes, 
 could not take it, and the balance to his wife on 
 a trust, which was void for indeflniteness, — Held, 
 that he died intestate as to all but the first be- 
 quest, and the residue must be distributed under 
 the statute of distributions ; and the provision 
 for the wife not being declared to be in lieu of 
 dower or other claim, she was entitled to share 
 in the distribution. Ct. App., 1875, Lefevre v. 
 Lefevre, 59 N. Y. (14 Sick.) 434. 
 
 IV. Suit pok constbuction. 
 
 261. Who can maintain. One who claims 
 a mere legal estate in real estate under a will, 
 where there is no trust, cannot come into a 
 court of equity for the mere purpose of obtain- 
 ing a judicial construction of the provisions of 
 the will. Sup. Ct., 1872, Bailey v. Southwick, 6 
 Lans. 356 ; Aflt'd, S. C, sub nom, Bailey v. Briggs, 
 56 N. Y. (11 Sick.) 407. 
 
 262. Thus, where a testator devised certain 
 real estate to his daughter, " subject to the fol- 
 lowing condition and contingency: that said 
 gift is made and given to her and her direct lin- 
 eal descendants, should she have any, in fee 
 simple absolutely, but in the event that she shall 
 die, leaving no children, or descendants of any 
 
 48 
 
 children, then " to his other children's descend- 
 ants, and the daughter conveyed away tlie land 
 so devised to her, she having children at the 
 time, — Held, that her grantee could not main- 
 tain an action in equity to obtain a judicial con- 
 struction of the will and determination of his 
 title under his conveyance. lb. 
 
 263. Heir-at-Iaiiv. Whether heirs-at-law can 
 properly maintain an action for the construction 
 of a testator's will, query ? It seems the right 
 to maintain such an action in equity is limited 
 to executors or trustees themselves, and persons 
 specially authorized by the act of 1853. Sup. 
 Ct., 1874, Meserole v. Meserole, 1 Hun, 66, 
 
 264. Legatees. Mere pecuniary legatees under 
 a will cannot maintain an action to obtain a ju- 
 dicial construction, but they should sue for their 
 legacies, or take proceedings before the surrogate 
 to compel the payment thereof. Nor, as to 
 such legacies have they a joint right of action. 
 James, J., dissents. Sup. Ct., 1875, Chipman v. 
 Montgomery, 4 Hun, 739. 
 
 265. Neither can an heir-at-law or devisee of 
 real estate, claiming a legal title thereto on ac- 
 count of the invalidity of the residuary devise, 
 maintain an action for a construction of the will, 
 lb. 
 
 266. If one entitled as distributee can, in any 
 case maintain such an action against an exec- 
 utor holding personal property, it can only be 
 done when the executor has, at the time the 
 action is brought, personal property in )iis pos- 
 session held by him in trust, either, under the 
 provisions of the will, for the legatees, or, be- 
 cause of the invalidity of its provisions, for the 
 distributees, under the statute, and that fact 
 must be alleged and proved. lb. 
 
 267. Legatees under a will, who claim that by 
 the will of another decedent there has been an 
 equitable conversion of real estate in favor of 
 their testator, or that the will of the latter 
 charged their legacies upon land devised to him 
 by such other will, where the same person is the 
 legal representative of both estates, may main- 
 tain an action for the construction of both wills, 
 and for an accounting and the payment of their 
 legacies. Sup. Ct., 1873, Fisher v. Hubbell, 7 
 Lans. 481 ; S. C, 65 Barb. 74. 
 
 268. In such action, all such legatees may 
 join as plaintiffs, as creditors having claims of 
 equal degree, and the executor of the debtor 
 estate must be made a party thereto as repre- 
 sentative of that estate, and it is not suflicient 
 to make him such as representative of the cred- 
 itor estate. lb. 
 
 269. Against -whom. ,An action for 'the 
 construction of a will, for a partition and an ac- 
 counting, may be maintained by parties claim- 
 ing an interest in land under a will, against oth- 
 ers who are in possession claiming exclusive 
 right under the same will ; and the court will 
 not require the plaintiffs to first try the question 
 of title in an action of ejectment. Sup. Ct., 
 1866, Scott V. Guernsey, 60 Barb. 163. 
 
 270. What tiuestions will be determined. 
 In an action for the construction of a will by 
 which a certain portion of the estate was de- 
 vised to the executor, in trust during the life of 
 one of the defendants in the action, with au- 
 thority to the executor to convey it to the de- 
 fendant at any time when he should be satisfied 
 that the defendant would make a prudent and 
 proper use of it, the question whether the execu- 
 tor was so satisfied is not pertinent to the 
 action ; and portions of an answer asking an 
 adjudication to that effect sliould be stricken out 
 Sup. Ct, 1875, McLean v. McLean, 3 Hun, 395. 
 
754 
 
 WITNESS. 
 
 271. In an action by the executors and one of 
 the lieirs of a testator, for the construction of 
 his will, if no estate in or control over the testa- 
 tor's land is given thereby to the executors, 
 they cannot have a construction of a clause giv- 
 ing a farm to one legatee in consideration of 
 his supporting the testator. Sup. Ct., 1873, 
 Brundage v. Biimdage, 65 Barb. 397. 
 
 272. Neither can the court give a construction 
 of that clause on the application of the heir, 
 and on his allegation of the failure of the lega- 
 tee to perform the condition, without proof of 
 such failure. lb. 
 
 273. Reference. The appointment of a 
 referee, and also making him receiver, with 
 power to carry out his decision, without previ- 
 ously making a report to the court for confirma- 
 tion by the decree, in an action for the construc- 
 tion of a will, for an accounting, the sale of real 
 property and other relief, is improper, and 
 should be modified so as to make the reference 
 merely interlocutory, and require a report to 
 the court upon all the facts, matters, etc. Sup. 
 Ct., 1874, Fisher v. Hubbell, 1 Hun, 610. 
 
 274. Costs. Where the court finds, in an ac- 
 tion brought by an executor for the construction 
 of .a will, that it is not a proper case for such 
 an application, and that the executor has used 
 the funds of the estate in his individual busi- 
 ness, and is not acting in good faith, it may 
 properly charge him personally with costs and 
 five per cent, additional costs. Sup. Ct., 1874, 
 Smilh V. Rockefeller, 3 Hun, 295. 
 
 WITNESS. 
 
 I. Examination on commission ; perpbt- 
 
 TTATioN OP testimony 754 
 
 n. Competency ; peivilegb 754 
 
 ni. Ckedibility 757 
 
 L Examination on commission; pekpbtua- 
 tion op testimony. 
 
 1. Commission, who may issue. A referee 
 for the trial of a cause has no power to issue a 
 commission to examine witnesses out of the 
 State. Only the court can do that. N. Y. Supr. 
 Ct., 1872, Rathbun v. Ingersoll, 34 N. Y. Supr. 
 (2 J. & Sp.) 211. 
 
 2. Laches, effect of. The granting of a com- 
 mission, although not an absolute right, has be- 
 come almost a matter of course ; and when ap- 
 plied for without laches or unreasonable delay, 
 is usually accompanied by a stay of proceedings 
 for such reasonable time as may be required for 
 its due execution. lb. 
 
 3. Where much time has elapsed, a very sat- 
 isfactory excuse is required ; and the party ap- 
 plying must make out so strong a case, not only 
 excusing his laches, but showing the necessity 
 and materiality of the evidence, as will remove 
 the natural suspicion of bad faith. lb. 
 
 4. A party has no right to rest upon the ex- 
 pectation of the personal attendance of foreign 
 witnesses, and their failure to attend is no excuse 
 for the delay in procuring their testimony. lb. 
 
 5. Although the court has power to grant a 
 commission after the commencement of the trial, 
 or even after the other testimony is closed, yet 
 it should not interrupt or stay the trial, except in 
 a clear case of necessity, and only when sub- 
 stantial justice requires it lb. 
 
 6. Commission rogatory. The mode of 
 taking testimony abroad provided by statute (2 
 
 Edm. Stats. 409), will not be departed from, un- 
 less the court cannot otherwise get the testi- 
 mony. An application for a commission to be 
 issued to the French courts, to enable a party to 
 examine two witnesses orally,, on the ground 
 that one of them upon a previous examination 
 on commission has testified falsely, and he fears 
 the other will do so, may properly be denied, es- 
 pecially where it does not appear that there will 
 be any difficulty in obtaining the execution of a 
 commission. Sup. Ct., 1874, Fraude v. Froude, 
 1 Hun, 76. 
 
 7. After judgment. The statute relative to 
 taking the testimony of witnesses out of this 
 State (2 E. S. 394), does not give the court in 
 which the trial of an issue of fact is had any 
 power or authority to issue a commission for the 
 examination of foreign witnesses after a trial 
 and judgment in the action, although an appeal 
 from such judgment is pending which may re- 
 sult in a new trial. That power can be exercised 
 only before trial and judgment. Ct. App., 1872, 
 McColl V. Sun Mut. Ins. Co., 44 How. 452; 
 Afe'g S. C, 34 N. Y. Supr. (2 J. & Sp.) 310; 
 AfE'd, S. C, 50 N. Y. (5 Sick.) 332. 
 
 8. The statute relating to the perpetuation of 
 testimony applies only to witnesses in this State, 
 lb. 
 
 9. Perpetuating testimony. The power to 
 summon a witness for examination for the pur- 
 pose of perpetuating his testimony is given to 
 the judges of the Superior court, not to the 
 court. N. Y. Supr. Ct. Chambers, 1875, Fonda 
 V. Artiiour, 49 How. 72. 
 
 10. In taking such testimony the judges act 
 as quasi Supreme Court commissioners ; and 
 they may act in cases pending in other courts 
 than their own. lb. 
 
 11. They cannot, however, act outside of the 
 city of New York; and, as the statute requires 
 the examination to be in the county where the 
 witness resides, they cannot compel the attend- 
 ance of a witness residing in another county. lb. 
 
 12. A party to an action has not an absolute 
 right, under art. 5, title 3, ch. 7, part 3, R. S. (2 
 Edm. Stats. 414), to examine a witness before or 
 after issue joined, but he must satisfy the court 
 that his object is in good faith to perpetuate the 
 testimony of a witness, whose evidence is ma- 
 terial, and from age, non-residence or infirmity, 
 is in danger of being lost to the party if not so 
 perpetuated. Sup. Ct. Chambers, 1874, Cheever 
 v. Saratoga Co. Bank, 47 How. 876. 
 
 13. Where it is proposed to examine more 
 than one witness, the judge before whom they are 
 to be brought, may' in his discretion determine 
 whether all of them shall be so examined. lb. 
 
 II. Compbtency; pkivilbge. 
 
 14'. Assignor. A former partner who has sold 
 out his interest in the partnership property to 
 one of his co-partners, cannot be a witness in 
 an action for an accounting between his assignee 
 and the personal representatives of a deceassd 
 partner. Sup. Ct., 1871, Lyon v. Snyder, 61 Barb. 
 172. 
 
 15. The prohibition of sec. 399 of the Code is 
 not limited to an examination in respect to mat- 
 ters pertaining to the parts of the action as- 
 signed, but extends to the entire action. lb. 
 
 16. Ezpert. General agents and managers of 
 a steamboat company, who have been so for 
 many years, and are acquainted with the con- 
 struction of bertha in steamboats generally, are 
 competent to testify as experts as to whether 
 the berths on a particular boat were constructed 
 
WITNESS. 
 
 755 
 
 in the most approved manner of the best steam- 
 boats built about their time or since. Sup. Ct., 
 
 1872, Tinney v. New Jersey Steamboat Co., 12 
 Abb. N. S. 1 ; S. C, 5 Lans. 607. 
 
 17. As between scientific witnesses testifying 
 as to the effect of injuries to the human body, 
 the greater weight should be given to the opin- 
 ion of those using the most perfect instruments 
 and processes, and acquainted with the most 
 recent discoveries of science and most improved 
 methods of treatment and Investigation. lb. 
 
 18. One wlio has seen a party write his name 
 but once, and one who has held his note, con- 
 ceded to be genuine, are each competent to testify 
 as to the genuineness of his signature. Com. App., 
 
 1873, Hammond v. Varian, 53 N. Y. (9 Sick.) 398. 
 
 19. Husband and vrife. It was clearly the 
 intention of the act of 1860, amending sec. 399 
 of the Code, to make husband and wife compe- 
 tent witnesses, for and against each other, in 
 all eases where they are parties to the action. 
 Sup. Ct., 1862, Matteson v. New York Cent. R. R. 
 Co., 62 Barb. 364. 
 
 20. Under sec. 399 of the Code, as it existed 
 in 1872, a husband was a competent witness in 
 behalf of his wife, where both were joined as 
 parties to the same action. Com. App., 1872, 
 Birdsall v. Patterson, 51 N. Y. (6 Sick.) 43. 
 
 21. Since the act of 1867, either husband or 
 wife, in an action by one against the other, is a 
 competent witness in his or her own behalf, save 
 in the cases therein' excepted. Ct. App., 1872, 
 Southwick V. Southwick, 49 N. Y. (4 Sick.) 510; 
 AfE'g S. C, 2 Sweeny, 234. S. P. Minier v. 
 Minier, 4 Lans. 421. 
 
 22. This statute applies to all trials had after 
 its passage, whether in actions then pending or 
 afterward brought ; and either party may tes- 
 tify to communications (not confidential) had 
 with the other prior to its passage. lb. 
 
 23. Wife. A wife is not a competent witness 
 in a criminal action or proceeding against her 
 husband. The statute of 1867, making her a com- 
 petent witness for or against him, is confined by its 
 terms to civil actions and proceedings. Ct. App., 
 1873, Wilke v. People, 53 N. Y. (8 Sick.) 526. 
 
 24. A T^ridow is a competent witness, as to a 
 transaction between her and her husband at the 
 time she assigned a policy of insurance on his 
 life held by her as security for his debt, in an 
 action by her against one claiming under such 
 assignment, since he does not derive title from 
 the deceased. Ct. App., 1875, Barry y. Equit- 
 able Life Assurance So., 59 N. Y. (14 Sick.) 587 ; 
 AfE'g S. C, 14 Abb. N. S. 385, n. 
 
 25. A prisoner on trial upon a criminal 
 charge is a competent witness in his own behalf, 
 even though he has been previously sentenced 
 on a conviction for felony, and has not been 
 pardoned. The disqualification of the Revised 
 Statutes has been so far removed by ch. 678, 
 Laws 1869. Sup. Ct., 1871, Delamater v. People, 
 6 Lans. 332. 
 
 26. One party deceased. The examina- 
 tion of a party as to a personal transaction be- 
 tween himself and the deceased person repre- 
 sented by the adverse party, is prohibited by 
 sec. 399 of the Code, not merely when called to 
 testify in his own behalf, but when testifying in 
 behaiif of his co-plaintiff or co-defendant. Sup. 
 Ct., 1875, Bennett v. Austin, 5 Hun, 536. 
 
 27. A defendant sued on a promissory note 
 by the administrator of a deceased person, and 
 interposing a counterclaim for rent due from 
 the plaintiff's intestate, cannot be asked on his 
 examination as a witness whether he had ever 
 received any money from the intestate, or anjr 
 
 one representing him. Sup. Ct., 1876, Baldwin 
 V. Smidt, 6 Hun, 454. 
 
 28. An executor cannot testify, upon an ac- 
 counting before the surrogate, to personal trans- 
 actions between himself and the deceased, such 
 as the advancing of money by him to the de- 
 ceased, nor can he introduce entries in his books 
 as evidence thereof. Sup. Ct., 1874, Elmore v. 
 Jaques, 2 Hun, 130 ; Eev'd by Ct. App. 
 
 29. In an action to foreclose a mortgage, 
 brought by the executors of the devisee of the 
 original mortgagee, the mortgagor cannot be 
 permitted to testify to transactions between him 
 and the deceased mortgagee, tending to contra- 
 dict the mortgage. Sup. Ct., 1875, Smith v. 
 Hazard, 4 Hun, 418. 
 
 30. A party to an action cannot he permitted 
 to testify that he saw the deceased plaintiff 
 sign the affidavit of verification of the com- 
 plaint, that being a transaction between them 
 within the meaning of sec. 399 of the Code. 
 Sup. Ct., 1878, Denham v. Jayne, 3 Hun, 614. 
 
 81. Persons through whom a party to a real 
 action derives title, are not competent to testifj- 
 as to transactions had with a person deceased, 
 as against the grantee of the latter ; such gran- 
 tee being an assignee, within the meaning of 
 sec. 399 of the Code. Ct. App., 1871, Mattoon v. 
 Young, 45 N. Y. (6 Hand,) 696. 
 
 32. Under that sec. of the Code, as amended 
 in 1867, such persons, though competent at com- 
 mon law as grantors without covenant, would 
 be incompetent where the result of the action 
 might be to affect the interest formerly owned- 
 by them. lb. 
 
 33. Where the grantor of a plaintiff in eject- 
 ment died before trial, and defendant by his an- 
 swer claimed to be the equitable owner and 
 asked a conveyance of the premises, — Held, 
 that plaintiff was an assignee within the mean- 
 ing of sec. 399 of the Code, as amended in 1862, 
 and defendant was not competent to testify as 
 to transactions and conversations between him- 
 self and deceased tending to sustain his counter- 
 claim. Com. App., 1872, Buck'v. Stanton, 51 N. 
 Y. (6 Sick.) 624. 
 
 34. In an action by one claiming to be admin- 
 istrator by virtue of letters duly issued to him, 
 the defendant cannot be permitted to testify to 
 conversations had by him with the alleged in- 
 testate, prior to the issuing of such letters, hav- 
 ing a tendency to show that he is still alive ; nor 
 would such testimony be sufficient, if received, 
 to authorize the court to hold the letters nuU. 
 Sup. Ct., 1875, Parhan v. Moran, 4 Hun, 177. 
 
 35. Upon an accounting before a surrogate, if 
 the declarations of the testator as to his owner- 
 ship of a bond, which is claimed by the execu- 
 tor, are testified to by a party in interest against 
 the executor, the prohibition of sec. 399 of the 
 Code does not apply to or exclude counter- 
 declarations in his favor. Sup. Ct., 1875, Smith 
 V. Christopher, 3 Hun, 585- 
 
 36. The plaintiffs in an attachment suit can- 
 not, in a suit by the administratrix of a deceased 
 person against the constable who served the 
 attachment, to recover the property attached, 
 on the ground that it belonged to the deceased 
 and not to the attachment defendant, testify as 
 to conversations between themselves and the 
 deceased, they being virtually defendants in in- 
 terest in such action. Sup. Ct., 1874, Wooster 
 V. Booth, 2 Hun, 426. 
 
 37. In an action against the maker and in- 
 dorsers of a promissory note, prosecuted by the 
 executrix of the indorsee, the maker is not a 
 competent witness for the other defendants to 
 
756 
 
 WITNESS. 
 
 show that the note was infected with usury, or 
 that the time of payment liad been extended by 
 an agreement between the testator, in his life- 
 time, and tlie witness. It makes no difference 
 that the action was commenced by the testator 
 in Ins lifetime. Sup. Ct., 1871, Genet v. Lawtje^-, 
 61 Barb. 211. S. P., Fox v. Clark, 61 Barb. 216, n. 
 
 38. Nor does the fact that such maker did not 
 appear nor answer, or that the other defendants 
 had released liim from liability, make liim a 
 competent witness. lb. 
 
 39. Upon the trial of special issues as to the due 
 execution of a will and deed, and as to the com- 
 petency of the testatrix, the plaintiff cannot be 
 permitted to testify to declarations pertinent to 
 the issue, made to her by the testatrix, although 
 made in the presence of the executrix. The 
 admissibility of such evidence does not depend 
 upon the fact that, when offered, there is a per- 
 son living who can contradict it. Sup. Ct., 
 1872, Hatch V. Peugnet, 64 Barb. 189. 
 
 40. The wife of a mortgagor, who joined in 
 the mortgage and is made a party to an action 
 by the executor of tlie mortgagee to foreclose 
 it, althougli she puts in no defense, cannot tes- 
 tify as to a conversation had between the mort- 
 gagor and the deceased mortgagee, in which 
 she participated, in support of the defense of 
 usury set up by the other defendants. Sup. Ct., 
 1874, Farnsworth v. Ebbs, 2 Hun, 438. 
 
 41. In an aetion of trespass upon land against 
 one who claims to have entered as agent of the 
 owners, the plaintiff's grantors cannot be per- 
 
 ■ mitted to testify as to conversations between 
 them and one through whom defendant's princi- 
 pal claims, who is deceased at the time of the trial. 
 Sup. Ct., 1875, Wheelock v. Cuyler, 4 Hun, 414. 
 
 42. In an action by the personal representa- 
 tives of the devisee of a mortgage to foreclose 
 the same, the mortgagor cannot be permitted to 
 testify as to transactions between himself and 
 the deceased mortgagee, tending to contradict 
 the mortgage. Sup. Ct., 1875, Smith v. Hazard, 
 4 Hun, 418. 
 
 43. Sec. 399 of the Code does not preclude a 
 a party from testifying to the statements of a 
 person deceased, made to a third person in the 
 hearing of the witness, even though he partici- 
 pated in tlie conversation, or such third person 
 was the attorney of the deceased. Ct. App., 1874, 
 Cary v. While, 59 N. Y. (14 Sick.) 336. 
 
 44. Nor is such testimony to be excluded 
 merely because the party against whom it is 
 offered is in some sense an assignee of the de- 
 ceased, where he does not represent an interest 
 which the deceased had or claimed to have at 
 the time of the transaction or communication 
 sought to be proved, which interest subsequently 
 devolved on such party. lb. 
 
 45. In an action of ejectment, where the plain- 
 tiff gives evidence as to certain admissions made 
 by a grantor of the defendant, such grantor may 
 properly be permitted to testify to rebut such 
 evidence, even though it relates to transactions 
 had with a deceased person, through whom the 
 plaintiff claims title. Sup. Ct., 1875, Cole v. 
 Denne, 3 Hun, 610. 
 
 46. A father who had surrendered to his minor 
 child all his claim to wages to be earned by her, 
 before she went out to service, is a competent 
 witness in an action by her against the adminis- 
 trator of her employer for her wages, to prove 
 conversations between himself and such employ- 
 er in relation to the employment, he never 
 having been entitled to receive any of the wages. 
 Sup. Ct., 1871, Shirley v. Bennett, 6 Lans, 512. 
 
 47. The prohibition of sec. 399, of the Code 
 
 does not prevent a party from testifying in an 
 action in which the legal representatives of a 
 deceased person are adverse parties, to a con- 
 versation between the deceased and a third per- 
 son, which was overheard by him, it not being a 
 transaction between the deceased and the wit- 
 ness. Sup. Ct., 1871, Hildebrant v. Crawford, 6 
 Lans. 502. 
 
 48. Nor does it prevent him from testifying to 
 an agreemeijt made between himself and the 
 agent of such deceased person, who is also since 
 deceased. lb. 
 
 49. A party to an action is not excluded from 
 testifying as against an heir-at-law of a deceased 
 person in regard to a conversation between the 
 deceased and a third person. Sup. Ct., 1871, 
 Sanfm-d v.Sanford, 5 Lans. 486; S. C, 61 Barb. 293. 
 
 50. A defendant who has been called by the 
 plaintiff, and testified to having written letters 
 in which he stated that his father had given him 
 a sum of money, may on cross-examination ex- 
 plain the character of the gift, and show that 
 it was not an advancement. lb. 
 
 51. In an action against a surviving trustee 
 and the representatives of a deceased trustee, 
 the plaintiff may testify to transactions and com- 
 munications iiad by him with the trustees, both 
 participating, where they were not partners but 
 tenants in common merely, such evidence being 
 competent as against the survivor. Sup. Ct., 
 Church V. Kidd, 3 Hun, 254. 
 
 52. The simple question whether a witness 
 had a conversation with a deceased person is not 
 obnoxious to the objection that it calls for a 
 " transaction or communication " between such 
 deceased person and himself, within the meaning 
 of the Code, unless, perhaps, in a case where the 
 mere fact of the conversation is the material fact 
 to be proved. Ct. App., 1872, Hier v. Chant, 47 
 N. Y. (2 Sick.) 278. 
 
 53. One partner deceased. The mere 
 fact that a surviving partner, in a suit by him, 
 has testified to a negotiation between himself 
 and the defendant upon the subject of the con- 
 tract in suit, but that sucli contract was com- 
 pleted with his deceased partner, does not en- 
 title the defendant to testify as to the final nego- 
 tiation between himself and the deceased. N. 
 Y. Supr. Ct., 1874, Goodwin v. Hirsch, 37 N. Y. 
 Supr. (5 J. & Sp.) 503. 
 
 54. It seems that, if the plaintiff's testimony 
 had the force of testimony, the defendant would 
 be entitled to testify on the same subject and 
 even if it did not have that force, if the ease is 
 tried by a jury, a refusal to allow the defendant 
 to give such testimony would tend to mislead the 
 jury, and would therefore be error. lb. 
 
 55. In an action against the surviving partner 
 of a firm the plaintiff is not competent to testify 
 to a conversation had between himself and the 
 deceased partner. Ct. App., 1874, Green v. Ediclc, 
 56 N. Y. (11 Sick.) 613. 
 
 56. Privilege against suit. A person at- 
 tending court as a witness is privileged from the 
 commencement of an action against him by ser- 
 vice of summons, until the expiration of a reason- 
 able time for him to return to his residence ; and 
 this rule applies as well to foreign witnesses who 
 come voluntarily into our courts as witnesses, 
 without service of compulsory process on them 
 here, as to another witnesses. Sup. Ct^ Sp. T. 
 1872, Brett v. Brown, 13 Abb. N. S., 295. 
 
 57. Privilege of prisoner. A prisoner, who 
 is sworn in his own behalf under the act of 1869, 
 thereby waives the constitutional prohibition 
 against compelling an accused person to be a 
 witness against himself, and subjects himself to 
 
WITNESS. 
 
 757 
 
 the same rules and tests applicable to other wit- 
 nesses. Ct. App., 1872, Connors v. People, 50 
 N. Y. (5 Sick.) 240. 
 
 58. Privileged communiQations to at- 
 torney. Confidential communications between 
 attorney and client are privileged, although they 
 do not relate to any litigation, either commenced 
 or anticipated ; and this privilege extends equal- 
 ly to both parties. N. Y. Supr. Ct., 1878, Games v. 
 Piatt, 46 How. 620 ; S. C, 15 Abb. N. S. 337 ; 36 
 N. Y. Supr. (4 J. & Sp.) 361. 
 
 59. Statements and advice given by an attor- 
 ney to parties employing him to draw a chattel 
 mortgage, at the time of the execution thereof, 
 and in reference thereto, are privileged, and 
 not admissible in evidence in an action between 
 such parties. Ct. App., 1874, Yates v. Olmsted, 
 56 N. Y. (11 Sick.) 632. 
 
 60. An attorney who drew a deed, containing a 
 covenant on the part of the grantees to assume and 
 pay certain incumbrances, cannot, in an action 
 on such covenant, be asked whether the deed 
 was read over to the grantees after it ^yas drawn, 
 or whether the question was up as to the liability 
 of the grantees on such covenant, because sucli 
 questions call for privileged communications. 
 Sup. Ct., 1872, Rogers v. Lyon, 64 Barb. 373. 
 
 61. An attorney who received instructions 
 for and prepared a will, may testify as to an un- 
 derstanding between the testator and his wife 
 that a legacy inserted in the will in favor of the 
 wife should be in lieu of a note which would by 
 law have survived to the wife, as well as all other 
 claims against the estate. Sup. Ct., 1871, Sanford 
 V. Sanford, 5 Lans. 486 ; S. C, 61 Barb. 293.' 
 
 62. — to physician. In an action upon a 
 life insurance polioy, the company cannot be per- 
 mitted to prove by physicians that the assured 
 was afflicted with numerous diseases not men- 
 tioned in ills application, where they derive 
 their knowledge from attendance on him as phy- 
 sicians, through not from direct communications 
 made by him. The word " information " as used 
 by the statute prohibiting disclosures (2 R. S. 
 406, sec. 73; 2 Edm. Stats. 422), comprehends 
 the knowledge which physicians may acquire in 
 any way while attending the patient. Sup. Ct., 
 1875, Edington v. Mut. Life Ins. Co., 5 Hun, 1. 
 
 63. The statute applies not merely to the fam- 
 ily physician or-usual medical attendant, but to 
 a physician who casually or otherwise attends or 
 prescribes for the patient. lb. 
 
 64. Tliat statute is not repealed by sec. 390 of 
 the Code. lb. 
 
 65. The privilege of objecting to such disclo- 
 sure is not waived by the party's referring to 
 the physician in his answers to questions in his 
 applications for insurance, because, 1st, that ref- 
 erence is for a different purpose, and, 2d, such 
 person cannot so waive a right which, from its 
 nature, must be exercised by another after his 
 death. lb. 
 
 66. In an action for personal injuries, the at- 
 tending physician of the plaintiff cannot be ask- 
 ed whether the plaintiff had the venereal disease 
 while under his care. The question, though not 
 calling for a communication, impUes that he 
 learned the fact as a physician for the purpose 
 of prescribing, and is privileged. Ct. App., 1871, 
 Sloan V. New York Central R. R. Co., 45 N. Y. (6 
 Hand,) 125. 
 
 IIL Ckedieilitt. 
 
 67. Accomplice. In an action for fraud and 
 
 conspiracy, the testimony of an accomplice 
 should be scrutinized with great care and delib- 
 eration, but, under proper instructions from the 
 court, the question of its credibility is for the 
 jury, and they may place their verdict upon it, 
 if necessary, though unsupported. N. Y. C. P., 
 1,869, Ynguanzo v. Salomon, 3 Daly, 153. 
 
 68. Contradicted -witness. Where one 
 witness testifies positively that lie gave a certain 
 notice to another person, and the latter testifying 
 as a witness denies the giving of such notice, it 
 is not error to charge the jury that the former 
 could not have truly sworn he gave the notice 
 unless he recollected giving it ; and that if he 
 did not recollect it, he had committed perjury. 
 Ct. App., 1868, Carroll v. Charter Oak Ins. Co., 
 10 Abb. N. S. 166. 
 
 69. After a witness has had his attention 
 called, on his cross-examination, to an afiidavit 
 previously made by him, and has stated that he 
 made it and remembers its contents, the exam- 
 ining party may read the affidavit to show that 
 it contains statements contradictory to those 
 made by the witness on the trial. Sup. Ct., 1875, 
 Honstine v. O'Donnell, 5 Hun, 472. 
 
 70. "Whether the whole affidavit should be 
 read, or only that portion containing the contra- 
 dictory statements, query ? lb. 
 
 71. Continued agency. The fact that a 
 witness for plaintiffs, who acted as their agent 
 in the transaction in litigation, was continued in 
 their employ after such transaction, should not 
 be considered by the jury on the question of his 
 credibility. Ct. App., 1871, Meyer v. Clark, 45 
 N. Y. (6 Hand,) 285. 
 
 72. Inconsistent acts. Although a witness 
 may swear to the honesty and good faith of his 
 acts in the matter in controversy, yet, in passing 
 upon his credibility the court may disregard his 
 professions, and construe his acts in the light 
 which the facts and circumstances of the case 
 throw upon his possible and probable motives, 
 designs and interests. N. Y. Supr. Ct., 1875, 
 Bruce V. Kelly, 39 N. Y. Supr. (7 J. & Sp.) 27. 
 
 73. A party calling his adversary as a 
 witness must be held to have believed him cred- 
 ible and so presented him to the court ; and the 
 court cannot judicially determine that his un- 
 contradicted statements adverse to the party 
 calling him are false and perjured, and so infer 
 the truth of the matter to be otherwise than he 
 has testified. Ct. App., 1871, Fordham v. Smith, 
 46N.Y. (1 Sick.) 683. 
 
 74. Presumption against. Although the 
 statements of witnesses are positive and their 
 character unimpeached, yet, there may be such 
 an improbability in their relation of facts, or 
 they may have such an interest in the ques- 
 tion at issue, as will justify a jury in accept- 
 ing, as against their statements, the force of 
 a mere presumption. Ct. App., 1871, Elwood v. 
 Western Union Telegraph Co., 45 N. Y. (6 Hand,) 
 549. 
 
 75. Whole testimony may be rejected. 
 Where the jury come to the conclusion that a 
 witness has knowingly testified falsely in any 
 material particular, they may reject his entire 
 evidence. N. Y. Supr. Ct., 1874, Sturm v. Atlantic 
 Mut. Ins. Co., 38 N. Y. Supr. (6 J. & Sp.) 282. 
 
 76. The jury must be satisfied that a witness 
 has wilfully testified falsely in some particular, 
 before they are authorized to discredit his whole 
 testimony. Com. App., 1870, Wilkins v. Earle, 
 44 N. Y. (5 Hand,} 172 ; Rev'g S. C, 3 Rob. 352; 
 19 Abb. 190. 
 
TABLE OF CASES. 
 
 A. 
 
 Abbe v. Eaton, 51 N. Y. 410; pp. 123 (car- 
 rier), 320 (evidence). 
 
 Abbey v. Deto, 44 N. Y. 343; p. 379 (hus- 
 band and wife). 
 
 Abbott, Heinmuller v. 
 
 , KlERNAN V. 
 
 V. New York Central R. R. Co., 12 
 
 ^66. N. S. 465; pp. 52 (appeal), 545, 
 550 (pleading). 
 
 Abeel v. Conhysbr, 42 How. 252 ; p. 571 
 (practice). 
 
 , Fisher v. 
 
 Abei., Vandike v. 
 
 Abell, Hazard v. 
 
 V. Williams, 3 Daly, 17; pp. 285 (evi- 
 dence), 429 (landlord and tenant). 
 
 Abbrnathy v. Society of Church of the 
 Puritans, 3 Daly, 1; pp. 57 (appeal), 
 291 (evidencfe), 391 (injunction), 579 
 (practice), 652 (religious corporations). 
 
 Acer v. Wbstcott, 46 N. Y. 385; reversing 
 1 Lans. 93 ; pp. 103 {bona fide purchaser), 
 523 (notice). 
 
 Aceart v. Lansing, 48 How. 374 ; 59 N. Y. 
 646; pp. 499 (negUgenoe), 590 (practice). 
 
 Aceerman v. Cross, 54 N. Y. 29; p. 75 
 (assignment). 
 
 V. Jones, 37 N. Y. Supr. 42 ; pp. 435 
 
 (libel), 586 (practice). 
 
 r, Ross v. 
 
 V. VooRHiES, 33 N. Y. Supr. 487; p. 174 
 
 (contract). 
 
 AcKEESON, Johnson v. 
 
 ACKLEY, WeSTERVELT V. 
 
 AcEKOYD V. ACEROYD, 3 Daly, 38; pp. 155 
 (contempt), 347 (false imprisonment), 
 626 (practice). 
 
 Adams, Continental National Bank v. 
 
 V. Curtis, 4 Lans. 164 ; pp. 24 (action), 
 
 381 (liusband and wife). 
 
 , DiNSMORB V. 
 
 V. Farr, 2 Hun, 473 ; p. 714 (trespass). 
 
 , HOLYOKB V. 
 
 V. HoNNESS, 62 Barb. 326 ; pp. 161, 162 
 
 (contract). 
 V. IvES, 1 Hun, 457 ; pp. 166 (contract), 
 
 391 (injunction). 
 
 , Miller v. 
 
 V. Mills, 38 iV. Y. Supr. 16; affirmed, 
 
 60 N. Y. 533; pp. 192 (corporation), 630 
 
 (principal and agent). 
 V. Outhouse, 45 N. Y. 318; pp. 11 
 
 (action), 177 (contract). 
 V. People, 3 Hun, 654; p. 223 (criminal 
 
 law). 
 V. Perry, 43 N. Y. 487; pp. 717 (trusts), 
 
 741, 746 (will). 
 
 , Ray v. 
 
 , schenck v. 
 
 Adde, Lyon v. 
 
 Adee, Rappleye v. 
 
 Aden, Bildersee v. 
 
 Adirondack Co., Wickes v. 
 
 Adolph v. Central Park, etc. R. R. Co., 
 
 33 N. Y. Supr. 186; p. 499' (negligence). 
 Adrian^e, Clothier v. 
 Adriencb v. Lagrave, 47 How. 71 ; 15 
 
 Abb. N. S. 272; reversed, 1 Hun, 689; 
 
 47 How. 385; but affirmed, 59 N. Y. 110; 
 
 pp. 346 (extradition), 418 (jm-isdiction), 
 
 616 (praqtice). 
 Adwin v. New York Cent. & Hud. Riv. 
 
 R.R. Co., 60 Barb. 590 ; p. 647 (R. R. Co.). 
 .^tna Ls^subance Co. v. Wheelee, 49 N. 
 
760 
 
 TABLE OF CASES. 
 
 Y. 616; afBrmiiig 5 Lans. 480; p. 118 
 (carrier). 
 
 iExNA Life Iks. Co., Dean v. 
 
 , Foot v. 
 
 , Smith v. 
 
 /Etna National Bank v. Fourth Na- 
 tional Bank, 46 N. Y. 82; pp. 84 
 (banks), 715 (trusts). 
 
 Agate v. Lowenbeim, 4 Daly, 62 ; pp. 386, 
 392 (injunction). 
 
 V. , 57 N. Y. 604 ; reversing 4 Daly, 
 
 262 ; pp. 426, 432 (landlord and tenant,) 
 593 (practice), 736 (waste). 
 
 Agnew, In matter op, 4 Hun, 435 ; pp. 
 577, 579 (N. Y. City). 
 
 Agricultural Insurance Co. v. Bean, 45 
 How. 444; pp. 201, 203 (costs). 
 
 , Bowman v. 
 
 , Cummins u. 
 
 , Thayek v. 
 
 Agricultural National Bank of Pitts- 
 field V. Sheffielb, 4 Hun, 421 ; p. 724 
 , (usury). 
 
 Ahern v. National Steamship Co., 11 
 Abb. N. S. 356; 3 Daly, 3.19 ; pp. 36 (ap- 
 peal), 258 (district court), 350 (foreign 
 corporation). 
 
 V. Standard Life Ins. Co., 2 Sweeny, 
 
 441 ; pp. 169 (contract), 293 (evidence), 
 503 (new trial). 
 
 Aiken, Van Rensselaer v. 
 
 Ainsworth v. Backus, 5 Hun, 414 ; pp. 6 
 (action), 177 (contract). 
 
 Albany, City op, Bkadt v. 
 
 , Menges v. 
 
 , People v. 
 
 , Smith v. 
 
 Albany City, Fire Ins. Co., Ellis v. 
 
 Albany City Ins. Co. v. Van Vranken, 
 42 How. 281 ; p. 580 (practice). 
 
 Albany Gas Light Co., Lannen v. 
 
 Albany Hospital, People ex rel. Walk- 
 er V. 
 
 Albany Railway, Gallup v. 
 
 , Slawson v. 
 
 Albany & Susquehanna R. R. Co. v. Day- 
 ton, 10 Abb. N. S. 182; pp. 53 (appeal), 
 642 (R. R. Co). 
 
 ——., Fink v. 
 
 — , FiSK V. 
 
 , Johnson v. 
 
 , People v. 
 
 , Vai^ Rensselaer v. 
 
 , W-^P'i'MAN V. 
 
 , Wait v. 
 
 Albertson. People ex rel. Bolton v. 
 
 Albro v. Figuera, 60 N. Y. 630 ; pp. 439 
 
 . (limitation of actions), 563 (pleading.) 
 Alden, Central Bank op Westchester 
 Co. I,. 
 
 . , HUBBBLL V. 
 
 Aldrich V. Pyatt, 64 Barb. 391 ; p. 363 
 (frauds, statute of). 
 
 , Weed v. 
 
 Alexander v. Bennett, 60 N. Y. 204; re- 
 versing 38 N. Y. Supr. 492; pp. 51 (ap- 
 peal), 147 (constitutional law), 451, (ma- 
 rine court). 
 
 , Bennett v. 
 
 V. Gbrmania Fire Ins. Co., 2 Hun, 
 
 655, p. 403 (insurance). 
 
 V. Hard, 42 Row. 131 ; p. 197 (costs). 
 
 , People ex rel. Alexander v. 
 
 Alexander v. Sun Mutual Ins. Co., 51 
 N. Y. 253; reversing 49 Barb. 475; p. 
 410 (insurance). 
 
 Alexander Presb. Church v. Press. 
 Church, Corner Fifth Avenue and 
 Nineteenth St., 46 How. 312 ; p. 653 
 (religious corporation). 
 
 Alparo v. Davidson, 39 N. Y. Supr. 400, 
 463 ; pp. 57 (appeal), 607 (practice). 
 
 Alpord v. Stevens, 63 Barb. 29; pp. 66 
 '(appeal), 730 (waiver). 
 
 Algee, Baker v. 
 
 , Eaton v. 
 
 , Hudson Iron Co. v. 
 
 V. Johnson, 4 Hun, 412 ; p. 557 
 
 (pleading). 
 
 V. Scott, 54 N. Y. 14; p. 74 (assign- 
 ment). 
 
 V. Vanderpobl, 34 N. Y. Supr. 161 ; pp. 
 
 54 (appeal), 165 (contract), 575 (practice). 
 Algue v. Gardner, 54 N. Y. 360; pp. 595 
 
 (practice), 723 (usury). 
 Alkus v. Rodh, 4 Daly, 397 ; p. 330 (evid). 
 Allaback v. Utt, 51 N. Y. 651; p. 232 
 
 (damages). 
 Allard, Stockham v. 
 Allemannia Fire Ins. Co., Blackstone v. 
 Allen v. American Nat. Bank, 10 Abb. N. 
 
 S 331 ; p. 64 (appeal). 
 
 V. BkOwn, 5 ians. 511 ; p. 623 (practice). 
 
 V. , 5 Lans. 280; 60 Barb. 39 ; pp. 
 
 355 (former adjudication), 474 (mort- 
 gage), 706 (tenant for life). 
 V. , 44 iV. Y. 228; aflrming 51 Barb. 
 
 86. See Digest, vol. iv. 
 Allen, Cavalli v. 
 
 V. Clark, 65 Barb. 563 ; pp. 24 (ac- 
 tion), 415 (joint stock Co.). 
 
 , Cook v. 
 
TABLE OF CASES. 
 
 761 
 
 , Dainebe v. 
 
 V. Fink. 
 
 V. Fourth National Bank of New 
 
 York, 37 N. Y. Supr. 137 ; p. 84 (b'ks.) 
 V. , 59 N. Y. 12 ; affirming case 
 
 supra; p. 466 (money paid). 
 
 V. Fox, 51 N. Y. 562 ; p. 240 (damg's.) 
 
 Gaylord Manufacturing Co. v. 
 
 V. Godfrey, 44 N. Y. 433 ; p. 424 
 
 (justice court). 
 
 , Hyatt v. 
 
 , Johnson v. 
 
 V. Malcom, 12 Ahb. N. S. 335; pp. 250 
 
 (defenses), 550, 559 (pleading), 570 
 
 (practice), 730 (waiver). 
 
 , Malcom v. 
 
 V. Mercantile Mut. Ins. Co. , 44 N. Y. 
 
 437; reversing 46 Barb. 642 ; p. 413. (ins.) 
 V. ISwvr Jersey Southern R. K. Co., 
 
 49 How. 14 ; pp. 189, 193 (corporation), 
 
 529 (parties), 420 (jurisdiction). 
 
 , People v. 
 
 , People ex rel. Yawger v. 
 
 V. Reynolds, 36 N. Y. Supr. 297 ; p. 
 
 243 (deed). 
 
 , Savage v. * 
 
 V. Scandinavian National Bank, 
 
 46 How. 71 ; pp. 85 (b'ks.), 419 (juvisd.) 
 , Springfield Fire and Mar. Ins. 
 
 Co. V. 
 V. Stout, 51 N. Y. 668 ; pp. 324 (evi- 
 dence), 594 (practice). 
 
 , Thompson v. 
 
 V. Todd, 6 Lans. 222 ; pp. 441 (limitation 
 
 of actions), 665 (sale). 
 V. Ward, 36 N. Y. Supr. 290 ; pp. 88 
 
 (banks), 190 (corporation). 
 
 , Wheeler v. 
 
 , Williams v. 
 
 Allerton v. Allerton, 50 -ZV. Y. 670 ; p. 
 
 175 (contract). 
 V. Belden, 49 N. Y. 373 ; reversing 3 
 
 Lans. 492 ; pp. 272 (equity), 724 (usury). 
 Alley, Pullman v. 
 Allis v. Leonard, 46 N. Y. 688; p. 552 
 
 (pldg.) 
 
 V. , 58 N. Y. 288 ; p. 595 (practice). 
 
 V. Read, 45 N. Y. 142 ; pp. 362 (frauds, 
 
 statute of), 468 (money paid). 
 
 t). Wheeler, 56 N. Y. 50; p. 195 (costs). 
 
 Allison, Beck v. 
 
 V. Corn Exchange Ins. Co., 57 N. Y. 
 
 87 ; p. 412 (insurance). 
 V. Weller, 3 Hun, 608 ; p. 26 (action). 
 
 AlLTN, KiLBOURNE V. 
 
 V. Thurston, 5 Hun, 105; p. 885 (exec.) 
 
 Allyn v. , 53 N. 7. 622 ; p. 548 (pldg.) 
 
 , Young v. 
 
 Alsheimer v. Krohn, 45 How. 127; p. 482 
 
 (landlord and tenant). 
 Altman, Cowing v. 
 Altmayer, Knappu. 
 Altmyer, Tracy v. 
 Alvord, Newman v. 
 
 , Smith v. 
 
 , Toll v. 
 
 American Bible Society v. Stark, 45 
 
 How. 160; pp. 248 (deed), 574 (practice), 
 
 749 (will). 
 American Coal Co. ov Alleghany Co., 
 
 Smith v. 
 American Corrugated Iron Co. v. Eis- 
 ner, 39 N..Y. Supr. SOO ; pp. 55 (appeal), 
 
 170 (contract), 734 (vaiver). 
 American Exchange National Bank, 
 
 Ludlow «. 
 American Institute, People ex rel. God- 
 win V. 
 American Life Ins. astd Trust Co. v. 
 
 Van Epps, 14 Abb. N. S. 253 ; reversed, 
 
 56 N. Y. 601 ; pp. 195, 204 (costs). 
 American Linen Thread Co., Wallace v. 
 American Manuf. Co., Stapenhorst v. 
 American Medicine Co. v. Kessler, 38 
 
 N. Y. Supr. 407 ; p. 329 (evidence). 
 American Merchants Un. Express Co., 
 
 Coulter v. 
 
 , Gibson v. 
 
 , Vroomano. 
 
 American National Bank, Lawrence v. 
 
 , Van Allen «. 
 
 , Walker v. 
 
 American Popular Life Ins. Co., Fitch v. 
 
 , Hayneb v. 
 
 , Hunter v. 
 
 American Silk Works v. Salomon, 4 
 
 Hun, 135 ; p. 185 (corporation). 
 American Society fob Prevention op 
 
 Cruelty to Animals, Broadway 
 
 Stage Co. v. 
 American Tontine Life and S. Ins. Co., 
 
 Thompson v. 
 Ames v. Duryea, 6 Lans. 155 ; pp. 260 (dom- 
 
 icil), 738 (will). 
 
 , Todd, v. 
 
 , Tracy u. 
 
 , Tyler v. 
 
 Amicable Mut. Life Ins. Co., Horn v. 
 
 Amidon, Meyer v. 
 
 Amory v. Amory, 36 N. Y. Supr. 520 ; p. 
 
 654 (removal to U. S. court). 
 „. Wood, 51 N. Y. 644 ; p. 4 (aco'ts.) 
 
762 
 
 TABLE OF CASES. 
 
 Amsbrt v. Hinds, 48 JV. Y. 57 ; affirming 
 46 Barb. 622 ; p. 372 (highway). 
 
 Anchor Liff. Ins. Co. v. Pease, 44 How. 
 385 ; p. 404 (insurance). 
 
 Ancient City Sportsman's Club v. Mil- 
 ler, 7 Lans. 412 '; pp. 27 (action), 184 
 (corporation). 
 
 Anderson, In matt^ir of, 60 Barb. 375 ; 
 pp. 516, 517 (TSr. Y. City). 
 
 , 48 How. 279 | 2 Hun, 377 ; p. 517 
 
 (N. Y. City). 
 
 , 60 N. Y. 457:; modifying case last 
 
 supra; pp. 65 (a[)peal), 517 (N. Y. City). 
 
 V. DiLLAYE, 4:7i N. ¥. 678 ; p. 458 (me- 
 chanic's lien). 
 
 , Dillon v. 
 
 V. Htjnn, 5 Hin, 79; pp. 10, 28 (act'n.) 
 
 V. Mather, j:4 N. Y. 249; pp. 279 
 
 (estop.), 380 (h. & wife), 717, 720 (trusts). 
 
 , Maynard v. ( 
 
 V. Rome, Wat. and Ogd. R. R. Co. , 54 
 
 N.Y. 334; pp. ^6 (appeal), 313 (evidence). 
 
 V. Van Tassbll, 53 N. Y. 631 ; pp. 
 
 375 (highway), 568 (powers). 
 
 V. West, 38 iV. Y. Supr. 441 ; pp. 62 
 
 (appeal), 171 (contract). 
 
 Andrews, Ellis k. 
 
 V. Gillespie, 47 N. Y. 487 ; pp. 270 
 
 (equity), 279 (estoppel), 472 (m'tgage). 
 
 V. GlenvilLe Woolen Co., 11 Abb. 
 
 N. S. 78 ; pp. 21 (action), 613 (practice). 
 
 V. , 50iVr. Y. 282 ; p. 623 (practice). 
 
 , Jackson v. 
 
 , Moody u. 
 
 , People ex rel. Sheridan v. 
 
 V. Raymond, 58 N. Y. 676 ; p. 49 (app.) 
 
 , Sheridan, v. 
 
 , TOOMBY V. 
 
 Angell, Arnold v. 
 
 V. Hartford Fire Ins. Co., 59 N. Y. 
 
 171; pp. 233 (damages), 395 (insurance). 
 Anonymous, 15 Abb. N. S. 171; pp. 272 
 
 (equity), 452 (marriage and divorce). 
 
 , 15 Abb. N. S. 307 ; p. 454 (mar. & div.) 
 
 , 15 Abb. N. S. 311 ; p. 561 (pleading). 
 
 Anonymous v. Gelpcke, 5 Hun, 245 ; p. 75 
 
 (assignment for benefit of creditors). 
 
 , 59 N. Y. 313 ; pp. 36 (app.), 256 (dep.) 
 
 , 60 N. Y. 262 ; p. 676 (slander). 
 
 Ansonia Brass and Copper Co. v. New 
 
 Lamp Chimney Co., 53 N. Y. 123 ; 
 
 affirming 64 Barb. 435 ; pp. 88 (banks), 
 
 251 (defense). 
 Anthony v. Atkinson, 2 Svseeny, 228 ; p. 
 
 321 (evidence). 
 , New v. 
 
 AppeI,, Maye:: v. 
 
 Appleby v. Astor Fire Ins. Co., 54 N. Y. 
 253; pp. 305 (evidence), 399 (insurance), 
 596 (practice). 
 
 Applegate, Chamberlain ». 
 
 V. Morse, 7 Lans. 59 ; pp. 5 (action), 
 
 63 (appeal), 262 (easement), 627 (pre- 
 scription). 
 
 , Van Brunt v. 
 
 Arctic Fire Ins. Co . v. Austin, 3 Hun, 
 195 ; p. 495 (negligence). 
 
 , Parker v. 
 
 Arend v. Liverpool, N. Y. and Phil. 
 Steamship Co., 6 Lans. 457; 64 Barh. 
 118; pp. 122 (carrier), 293, 302, 304 
 (evidence). 
 
 Arguimban, Schmid v. 
 
 Argus Co. v. Mayor, etc. of Albany, 55 
 N. Y. 495; affirming 7 Lans. 264; p. 
 31 (Albany), 179 (contr.) 
 
 Akkbll, Ladd v. 
 
 Armidon, Buck v. 
 
 Armour, Fonda a. 
 
 V. Leslie, 39 N. Y. Supr. 353 ; p. 560 
 
 (pleading). 
 
 Armstrong, Brooklyn Park Commis- 
 sioners V. 
 
 V. Ferguson, 54 N. Y. 659 ; p. 602 
 
 ( practice). 
 
 , Hoffman v. 
 
 Arnold, In re. 60 N. Y. 26 ; p. 519 (N. Y. 
 city). 
 
 V. Angell, 88 N. Y. Supr. 27; p. 4 
 
 (accounts). 
 
 , Benjamin v. 
 
 II. Hudson Riy. R. R. Co. 55 N. Y. 
 
 661 ; p. 440 ( lim. of actions) , 642 ( R. R. 
 Co.) 
 
 . V. Kbyes, 37 N. Y. Supr. 135 ; p. 2 
 
 (abatement and revivor.) 
 
 , Lake v. 
 
 V. Robertson, 3 Daly, 298; p. 79 (at- 
 torney), 240 (damages), 582 (practice). 
 
 V. , 50 N. Y. 683; p. 46 (appeal). 
 
 Arnot, Baker v. 
 
 , COLSON V. 
 
 V. Erie Railway Co. 5 Hun, 608; p. 
 
 186 (corporation), 281 (estoppel). 
 V. Pittston and Elmira Coal Co., 2 
 
 Hun, 591; p. 173, 178 (contract). 
 Arnoux, Bowers v. 
 
 , Livingstone v. 
 
 Arthur, Central National Bank of 
 
 New York, v. 
 
 , Fargo v. 
 
 , George v. 
 
TABLE OP CASES. 
 
 763 
 
 V. Griswold, 2 Hun, 606 ; p. 575 
 
 (practice). 
 
 V. , 60 N. Y. 143 1 pp. 2 (abatement 
 
 and revivor), 39 (appeal). 
 V. , 55 N. Y. 400; pp. 47 (appeal), 
 
 313 (evidence), 353 (fraud). 
 
 , MiNSHALL V. 
 
 V. Roberts, 60 Barb. 580 ; pp. 319 (evi- 
 dence), 588 (practice). 
 
 AsHLBT V. Dixon, 48 N. Y. 430; p. 13 
 (action). 
 
 AsHTON, White v. 
 
 AspiNWALL, Ferris v. 
 
 V. Sacchi, 57 N. Y. 331 ; affirming 1 
 
 Lans. 381 ; pp. 180 (contribution), 252 
 (defence). 
 
 Association for Indigent Females, St. 
 Luke's Home v. 
 
 AsTEN, People ex rel. Develin v. 
 
 , People ex rel. Ward v. 
 
 AsTOK, In matter of, 53 N. Y. 617; p. 519 
 (N. Y. city). 
 
 V. , 50 N. Y. 363 ; pp. 143 (consti- 
 tutional law), 517 (N. Y. city). 
 
 V. Mayor, etc. Nevt York, 37 N. Y. 
 
 Supr. 539 ; pp. 160, 153 (constitutional 
 law), 270 (equity), 519, 520 (N. Y. city), 
 694 (superior court). 
 
 V. , 39 N. Y. Supr. 120 ; pp. 270 
 
 (equity), 688 (statutes). 
 
 V. Palache, 49 How. 231; pp. 203 
 
 (costs), 477 (mortgage). 
 
 Astor Fire Insurance Co. Appleby v. 
 
 , EiNN V. 
 
 Atoheson v. Mallon, 43 N. Y. 147 ; p. 
 
 178 (contract), 
 Atkins v. Elwell, 45 N. Y. 753; pp. 293 
 
 (evidence), 582, 583, 594 (practice). 
 Atkinson, Anthony v. 
 V. Gbf,at Western Ins. Co., 4 Daly, 
 
 1 ; pp. 411, 412 (ins.) 
 V. Sewine, 43 How. 84; 11 Abh. N. S. 
 
 384; pp.157 (contempt), 384 (injunot.) 
 Atlantic Dock Co. v. Leavitt, 54 N. Y. 
 
 35 ; pp. 206 (covenant), 273 (estoppel). 
 V. LiBBY, 45 N. Y. 499 ; pp. 202 (costs), 
 
 208 (covenant), 325 (evidence). 
 
 V. Mayor, etc. New York, 53 N. Y. 
 
 64; p. 253 (defence). 
 
 Atlantic and Great Western Kailwat 
 
 Co., GURNEY V. 
 
 Atlantic Mail Steamship Co., Svenson 
 
 V. 
 
 Atlantic Mutual Ins. Co., Leetch v. 
 
 , LULING V. 
 
 , Robertson v. 
 
 , Stukm v. 
 
 Atlantic National Bank of New York 
 V. Franklin, 55 N. Y. 235; reversing 
 64 Barb. 449; pp. 99 (bills and notes), 
 690 (stipulation). 
 
 Atlantic and Pacific R. R. Co., Dins- 
 more V. 
 
 , hoduskin v. 
 
 Atlantic and Pacific Telegraph Co. v. 
 Barnes, 39 N. Y. Supr. 40, 357; pp. 
 34, 60 (appeal), 637 (princ'l and surety). 
 
 V. Western Union Telegraph Co., 
 
 4 Daly, 527; p. 704 (tel. co's). 
 
 Atlantic Savings Bank v. Hiler, 3 Hun, 
 209; pp. 78 (atty.), 480 (mortg.) 
 
 Attorney, etc., In matter of, 1 Hun, 321; 
 p. 76 (attorney.) 
 
 Atwood v. Lynch, 37 N. Y. Supr. 5 ; pp. 
 51 (appeal), 607 (practice), 673 (sheriff). 
 
 , Young v. 
 
 Auburn, City of, Clemence v. 
 
 AuDAS V. Nelson, 64 Barb. 362; pp. 133, 
 (chat, mortg.), 182 (conv.) 
 
 AuDENREiD V. Mekch. Mut. Ins. Co., 60 
 N. Y. 482 ; p. 411 (insurance). 
 
 Augsbury, Hall v. 
 
 AuLD, Freeman v. 
 
 Austin, Arctic Fire Ins. Co. v. 
 
 , Bennett v. 
 
 V. Dye, 46 N. Y. 500; p. 104 {honafde 
 
 purchaser.) 
 
 , Giles v. 
 
 V. Goodrich, 49 N. Y. 266; p. 548 
 
 (pleading). 
 
 V. Monroe, 47 N. Y. 360; pp. 342 (ex- 
 ecutors and administrators), 563, 564 
 (pleading). 
 
 V. , 4 Lans. 67; p. 546 (pleading). 
 
 V. New Jersey Steamboat Co., 43 
 
 N. Y. 75; pp.489, 496, 501 (negl.) 
 
 V. Rawdon, 44 N. Y. 63; pp. 563 
 
 (pleading), 608 (practice). 
 
 V. Strong, 47 N. Y. 679 ; p. 428 (land. 
 
 and tenant). 
 Autenreith, Thornton v. 
 AvBRiLL V. Lagrave, 14 Abb. N. S. 343, 
 
 note; p. 418 (jurisdiction). 
 Avery v. Foley, 4 Hun, 415 ; p. 603 (pract.) 
 
 , Roggen v. 
 
 V. Woodbeck, 5 Lans. 498; 62 Barb. 
 
 557 ; pp. 65, 66 (appeal). 
 Aybr v. Kobbe, 59 N. Y. 454; afBrming 45 
 
 How. 373; 36 N. Y. Supr. 158; p. 425 
 
 (land, and tenant). 
 Aters, Carl v. 
 V. Lawrence, 59 N. Y. 192 ; reversing 
 
764 
 
 TABLE OF CASES. 
 
 eS Barb. 454; pp. 28 (actions), 386 (in- 
 junction), 548 (pleading), 690 (statutes), 
 710 (towns). 
 
 V. Western Railroad Corporation, 
 
 49 N. r. 660; p. 49 (appeal). 
 
 Ayrault, Curtiss v. 
 
 V. MuKPHT, 54 iV. F. 203; p. 477 
 
 (mortgages). 
 
 V. Pacific Bank, 47 N. Y. 570 ; affirm- 
 ing 1 Ahb. N S. 381; 6 Rob. 337; p. 41 
 (appeal.) 
 
 Ayres, Hadlby v. 
 
 V. Western Eailkoad Corporation, 
 
 45 N. r. 260 ; pp. 42 (appeal), 557 
 (pleading), 653 (removal to U. S. court). 
 
 AZNAR, MOLLEK V. 
 
 B. 
 
 Babbett v. Young, 51 N. Y. 238 ; af- 
 firming 51 Barb. 466. See Digest, Vol. 
 
 IV. 
 Babcock v. City op Buffalo, 56 N. Y. 
 
 268 ; p. 525 (nuisance). 
 
 , Elias v. 
 
 , Gager v. 
 
 V. Hermance, 48 N. Y. 683 ; p. 547 
 
 (pleading). 
 V. Hutchinson, 4 Lans. 276 ; p. 663 
 
 (sales). 
 
 , Kelly J). 
 
 V. Lake Shore & Mich. So. Railway 
 
 Co., 43 How. 317 ; 49 N. Y. 491 ; p. 
 
 118 (carrier). 
 Babsen, Gallup v. 
 Bach «. Emerich, 35 N. Y. Supr. 548 ; p. 
 
 108 (broker). 
 V. Pacific Mail Steamship Co., 12 
 
 Abb. N. S. 373 ; p. 389 (injunction). 
 Bacharach v. Lagbave, 47 Sow. 385; 1 
 
 Hun, 689; pp. 346 (extradition), 418 
 
 (jurisd.), 616 (practice) , 734 (waiver). 
 Baohia).. Ritchie, 51 N. Y. 677; p. 537 
 
 (partnership). 
 Backer, Dorm v. 
 
 Backman, Niag. Falls Susp. Bridge v. 
 Backus, Ainsworth v. 
 Bacon v. Dinsmore, 42 How. 368 ; p. 573 
 
 (practice). 
 V. GiLMAN, 4 Lans. 456 ; 60 Barb. 
 
 640; affirmed 57 N. Y. 656; p. 662 
 
 Badenhop v. McCahill, 42 How. 192 ; 
 
 p. 360 (frauds, statute of). 
 Baer v. Leppbrt, 5 Hun, 453; p. 93 (bills 
 
 and notes). 
 Bagg, Palmer v. 
 Bahrenburgh v. Brooklyn City, etc. 
 
 R. R. Co., 56 N. Y. 652 ; pp. 489, 498 
 
 (negligence). 
 Bailey v. Belmont, 10 Abb. N. S. 270 ; 
 
 S. C, sub. nom., Bailetu. O'Mahonbt, 
 
 33 N. Y. Supr. 239 ; pp. 8 (actions), 172, 
 177 (contract), 624 (practice). 
 
 V. Bergen, 2 Hun, 520; p. 76 (assign- 
 ment ben. creditors). 
 
 V. , 5 Hun, 555 ; p. 195 (costs). 
 
 V. Briggs, 56 N. Y. 407 ; affirming 
 
 S. C, sub. nom., Bailey v. South 
 wick, 6 Lans. 356, which see. 
 
 V. BuELL, 59 Barb. 168; reversed, 50 
 
 N.Y. 662; pp. 15 (actions), 593 (practice) 
 700 (taxes). 
 
 V. , 50 N. Y. 662; pp. 542 (pay- 
 ment), 700 (taxes). 
 
 , FiSKE V. 
 
 V. Gkiswold, 36 N. Y. Supr. 68 ; pp. 
 
 99 (bills and notes), 296 (evidence), 
 589 (practice). 
 
 V. Hudson Riv. R. R. Co., 49 JST. Y. 70 ; 
 
 pp. 180 (conversion)-, 661 (sale). 
 
 V. O'Mahoney, 33 N. Y. Supr. 239. 
 
 See S. C, sub. nom., Bailey v. Bel- 
 mont, 10 Abb. N. S. 270. 
 
 V. Park, 5 Hun, 41 ; p. 506 (new trial). 
 
 , Smiley v. 
 
 V. SouTHWiCK, 6 Lans. 356 ; affirmed, 
 
 sub. nom., Bailey w. Briggs, S6 N. Y. 
 407 ; pp. 5, 11 (action), 257 (determin- 
 ing claims), 548 (pleading), 753 (wiU). 
 
 V. Stone, 41 How. 346 ; pp. 197, 199, 
 
 204 (costs). 
 
 , Walls v. 
 
 , Webb v. 
 
 Bain v. Brown, 56 N. Y. 285 ; affirming 7 
 Lans. 506 ; p. 634 (principal and agent). 
 
 , Gardner v. 
 
 V. Matteson, 54 N. Y. 663 ; p. 342 
 
 (executors and administrators.) 
 
 Bainbridge, In matter of, 4 Hun, 674; p. 
 575 (practice). 
 
 , Livermorb V, 
 
 V. McCuLLOUGH, 1 Hun, 488 ; p. 344 
 
 (executors and administrators). 
 
 Baird v. Daly, 57 N. Y. 236 ; reversing 4 
 
TABLE OF CASES. 
 
 765 
 
 Lans. 426 ; pp. 27 (actions), 420 (juris- 
 diction). 
 
 V. GiLLETT, 47 N. Y. 186 ; p. 331 (evi- 
 dence). 
 
 Baken u. Haedek, 4 Hun^ 272 ; p. 378 
 (husband and wife). 
 
 Baker v. Algee, 51 N. Y. 625; p. 610 
 (practice) . 
 
 V. Aknot, 2 Hun, 682 ; p. 60 (appeal) . 
 
 V. Baker, 6 Lans. 509 ; pp. 97 (bills and 
 
 notes), 297 (evidence), 682 (stamps). 
 
 , Blbwett v. 
 
 , Courtney v. 
 
 V. Cdtting, 2 Sweeny, 435 ; p. 55 (app.) 
 
 V. Drake, 53 N. Y. 211 ; p. 238 (dam.) 
 
 , FlLKINS V. 
 
 , Hankins V. 
 
 V. Home Life Ins. Co., 2 Hun, 402 ; p. 
 
 407 (insurance). 
 
 , HOYT V. 
 
 V. Lever, 5 Hun, 114 ; pp. 65 (appeal), 
 
 173 (contract). 
 , Metcalf v. 
 
 , MCNGER V. 
 
 , Patterson v. 
 
 , Phelps v. 
 
 Tj. Pope, 2 Hun, 556 ; pp. 136 (civil 
 
 damage act), 148 (const, law), 335 
 (excise). 
 
 V. Kbmington, 45 iV. Y. 323 ; p. 50 (ap- 
 peal). 
 
 , EiNDGE V. 
 
 V. Spencer, 47 N. Y. 562 ; affirming 
 
 58 Barh. 248-; pp.43 (appeal), 251 (de- 
 fense), 257 (deposition). 
 
 V. Squike, 1 Hun, 4A8 ; pp. 300, 305, 
 
 323 (evidence). 
 V. Stephens, 10 Abb. N. S. 1; pp. 51, 
 
 59 (appeal), 157 (contempt), 576, 625 
 (practice). 
 
 , Teton v. 
 
 — ^ V. Union Mutual Ins. Co., 43 N. Y. 
 
 283 ; pp. 279 (estoppel), 318 (evidence), 
 
 406 (insurance). 
 V. Wales, 45 How. 137; 14 Abb. N. S. 
 
 331 ; 35 N. Y. Supr. 403 ; p. 570 
 
 (practice). 
 
 ' Yale v. 
 
 Balch v. New York & O. Midland K. R. 
 
 Co., 46 N. Y. 521; p. 645 (R. R. Co.) 
 Bald, Baldwin v. 
 Baldwin v. Bald, 48 N. Y. 673 ; pp. 285, 
 
 317 (evidence). 
 V. Barrett, 4 Hun, 119; pp. 69 (arbi- 
 tration). 
 , Bryan v. 
 
 V. BuEEOUGHS, 47 N. Y. 199 ; pp. 45 
 
 (appeal), 533 (partnership), 632, 633 
 
 (principal and agent). 
 V. Eazlee, 34 iV^. Y. Supr. 274 ; p. 624 
 
 (practice). 
 V. Humphrey, 44 N. Y. 609 ; pp. 162 
 
 (contract), 531 (partition). 
 V. Martin, 14 Abb. N. S.9; 35 JV. Y. 
 
 Supr. 85 ; pp. 296 (evidence), 557 (plead- 
 ing). 
 
 , Murphy v. 
 
 V. New York & Harlem Nav. Co., 
 
 4 Daly, 314; pp. 32 (amend.), 237 (dam.), 
 
 332 (evid.), 549 (pleadings). 
 
 , Produce Bank of New York c. 
 
 V. Smidt, 5 Hun, 454; p. 755 (witness). 
 
 V. Talmadge, 39 N. Y. Supr. 400 ; pp. 
 
 678 (spec, perf'ce.), 694 (supr. court). 
 V. United States Telegraph Co., 45 
 
 jV. Y. 744 ; reversing 1 Lans. 125 ; pp. 
 
 232 (damages), 298 (evidence), 705 (tele- 
 graph company). 
 Balen, Hope v. 
 Ball, Claflin v. 
 Ball v. Liney, 48 iV. F. 6 ; pp. 81 (bailment) , 
 
 253 (defense). 
 Ballard, Humiston v. 
 Ballou v. Cunningham, 60 Barb. 425 ; 4 
 
 Lans. 74, corrected, — See 61 Barb. 636 ; 
 
 p. 135 (chattel mortgage). 
 
 , First National Bank of Utica v. 
 
 V. Parsons, 55 N. Y. 673; pp. 199 
 
 (costs), 604 (practice). 
 Baltimore & Ohio R. R. Co., Bostwick v. 
 
 , RiCKETTS V. 
 
 Baltzen V, NicoLAY, 53 N. Y. 467 ; revers- 
 ing 35 N. Y. Supr. 203 ; pp. 281 (estoppel), 
 282, 299 (evidence), 633 (prin. and agt.) 
 
 Bamford, Vincent v. 
 
 Bancroft v. Shannon, 42 How. 1 ; p. 424 
 (justice court). 
 
 Banpield v. Rumsey, 2 Hun, 112 ; p. 92 
 (bills and notes). 
 
 Bangs v. Blue Ridge R. R. Co., 45 Hoiv, 
 169 ; p. 551 (pleading). 
 
 , Stack v. 
 
 Banker v. Banker, 4 Hun, 259; p. 502 
 (new trial). 
 
 , Cook ». 
 
 , Moses v. 
 
 Bank op Albion v. Burns, 46 N. Y. 170 ; 
 
 aff'g 
 
 2 Lans. 52 
 
 ; see Digest, 
 
 vol 
 
 iv. 
 
 
 , Pope v. 
 
 
 
 
 
 Bank of 
 
 AUBUEN 
 
 V. ROBEETS, 
 
 44 
 
 N. 
 
 Y. 
 
 192; 
 
 afE'g 45 Barb. 407 ; see 
 
 Digest, 
 
 vols. 
 
 i. and ii. 
 
 
 
 
 
766 
 
 TABLE OF CASES. 
 
 , EOWE V. 
 
 Bank of Califoenia v. Collins, 5 Hun, 
 
 209 ; pp. 1 (abatement and rev.), 503 
 
 (penal action). 
 Bank of Commonwealth v. Mayor, etc. 
 
 New York, 43 N. Y. 184 ; pp. 13 (ac- 
 tions), 701, 703 (taxes). 
 V. MuDGETT, 44 N. Y. 514 ; affirming 
 
 45 Barb. 663 ; pp. 295, 326 (evidence). 
 Bank of Cooperst15wn, Whitbhouse v. 
 Bank of Havana, Board of Supervisors 
 
 Schuyler Co. v. 
 V. Moore, 5 Hun, 624 ; pp. 616, 626 
 
 (practice). 
 Bank of New Orleans v. Matthews, 49 
 
 N. Y. 12 ; pp. 274 (estoppel), 537 (part- 
 nership) . 
 Bank of New York, Nat. Bank'g Asso., 
 
 Reid v. 
 Banks, Davis v. 
 Banta, In matter of, 60 N. Y. 165; p. 
 
 112 (Brooklyn). 
 Baptist Church in Oliver St., Madison 
 
 Ave. Bapt. Church v. 
 Bakandon, Kennedy v. 
 Barber, Easterly v. 
 
 , Freeman v. 
 
 , Miller v. 
 
 , Western Transportation Co. v. 
 
 Barclay v. Quicksilver Mining Co., 6 
 
 Lans. 25 ; pp. 25 (action), 545, 560 
 
 (pleading). 
 Barden, Weaver v. 
 Bargy, Townsend v. 
 Bakhydt v. Ellis, 45 N. Y. 107 ; p. 367 
 
 (guaranty). 
 Baring, Mulligan v. 
 Barker v. Clark, 12 Abh. N. 8. 106 ; pp. 
 
 8, 19 (action), 57 (appeal), 467 (money 
 
 paid), 549 (pleading). 
 V. Cocks, 50 N. Y. 689; pp. 36 (appeal), 
 
 252 (defense), 607 (practice). 
 
 , Cocks v. 
 
 , DuBois V. 
 
 V. Hudson Riv. R. R. Co. , 4 Daly, 
 
 274 ; pp. 374 (highw.), 499 (negligence). 
 , People ex rel Buff, and State Line 
 
 R. R. Co. V. 
 
 V. Savage, 45 i^. Y. 191 ; p. 497 (neg.) 
 
 V. White, 41 How. 504 ; 5 Abh. N. S. 
 
 124; 3 Trans. App. ?iQ. See Digest, 
 
 vol. iv. 
 „. , 58 N. Y., 204 ; pp. 7 (action), 
 
 316 (evid.),721 (trusts), 733 (waiver). 
 Barkhoff, Hover v. 
 Barkley, Pbtrie v. 
 
 Barlow, Jones v. 
 
 , V. Myers, 3 Hun, 720; pp. 22 (action), 
 
 99 (bills and notes). 
 
 , Whitney Arms Co. v. 
 
 Barlow & Reed v. Pease, 5 Hun, 564; pp. 
 
 299 (evidence), 335 (excise). 
 Barmore, Heath v. 
 Barnard v. Campbell, 65 Barb. 286; AfE'd- 
 
 55 N. Y. 456 ; pp. 276 (egtop.), 659 (sale). 
 
 V. , 58 N. Y. 73; p. 664 (sale). 
 
 , Hammett v. 
 
 V. KoBBE, 3 Daly, 35; p. 557 (pl'dings.) 
 
 V. , 3 Daly, 373; Affirmed 54 N. Y. 
 
 516; pp. 347 (factor), 612 (practice. 
 Barnes, Atlantic & Pacific Telegraph 
 
 Co. u. 
 
 , Bigler v. 
 
 , Emmons v. 
 
 V. Gill, 13 Abb. N. S. 169; pp. 339 
 
 (execution), 394 (insolv. debtor). 
 
 V. HusoN, 60 Barb. 598; p. 753 (will). 
 
 • V. Morgan, 3 Hun, 703 ; pp. 540 (patent), 
 
 612 (practice). 
 
 V. QuiGLEY, 59 iV. Y. 265; p. 566 (pldg.) 
 
 V. Underwood, 47 N. Y. 351; Revg. 3 
 
 Lans. 526 ; p. 376 (husb. & wife). 
 Barnett v. Chicago & Lake H. R. E. Co., 
 
 4 Hun, 114; p. 350 (for'gp corpor.) 
 Barney v. Bukstenbinbkr, 7 Lans. 210; 64 
 
 Barb. 212; pp. 17 (action), 494 (neglig.), 
 
 630 (princ. and agt.) 
 - — -, Camp v. 
 
 , Weed v. 
 
 , Wilson v. 
 
 Barnstorf, Carstens v. 
 
 Barr, Cook v. 
 
 Bareb, In matter of, 14 Abb. N. S. 426; pp. 
 
 69 (apprentice), 383 (infant). 
 Barrett, Baldwin v. 
 V. Third Ave. R. R. Co., 45 N. Y. 628 ; 
 
 AfE'g 1 Sweeny, 568 ; 8 Abb. N. S. 205; 
 
 pp. 77 (att.), 495 (negl.), 651 (release). 
 
 , Whiting v. 
 
 Barrons, Starbird v. 
 Barrows, Cleveland v. 
 
 , Starbird v. 
 
 Barry v. Equitable Life Ass. Soc'y, 
 
 59 N. Y. 587; Aff'g 14 Abb. N. S. 385 
 
 n; pp. 105 (bonafide purch.), 162 (contr.), 
 
 195 (costs), 378 (husb. and wife), 755 
 
 (witness). 
 
 , Hoffman u. 
 
 V. Kennedy, 11 Abb. N. S. 421; pp. 508 
 
 (N. Y. city), 624 (practice). 
 V. Mutual Life Ins. Co. of New 
 
 York, 53 N. Y. 536; p. 37 (appeal). 
 
TABLE OF CASES. 
 
 767 
 
 V. 49 How. 504; p. 404 (ins. ) 
 
 Bristow v. Hansok, 2 Hun, 333; pp. 89 
 
 bankrupt), 562 (pleading). 
 Barteau v. Pholnix Mutual L. Ins. Co., 1 
 
 Hun, 430; p. 407 (insurance). 
 Bartlbtt v. Drew, 4 Lans. 444; 60 Barb., 
 
 648; afE'd, 57 N. F.587; p. 209 (ored. 
 
 bill). 
 V. McNeil, 49 How. 55; 3 Hun, 221 ; 
 
 AfE'd 60 N. y. 53; pp. 609, 612 (pract.) 
 
 , Mitchell v. 
 
 Barton, Bishop v. 
 
 , Gray v. 
 
 , Hadley v. 
 
 V. Herman, 3 Daly, 320; 8 Abb. N.S. 399 ; 
 
 p. 459 (mech's lien). 
 y. Hermann, 11 Abb. N. S. 378; pp. 175 
 
 (contract), 733 (waiver). 
 V. Speis, 5 Hun, 60; pp. 25 (actions), 559 
 
 (pleading). 
 Bartow, Thomas v. 
 Baskin v. Baskin, 4 Lans. 90; pp. 342, 34.T 
 
 (exrs. and adm'r. ) 
 Bass v. White, 7 Lans. 171; p. 176 (con'tr.) 
 Bassell u. Elmore, 48 Sf. Y. 561 ; pp. 307 
 
 (evid.), 550 (pldg.), 676, 677 (sl'dr.) 
 Bassette, Chase v. 
 
 , Hatch v. , 
 
 I/. Lederer, 1 Hun, 274 ; pp. Ill 
 
 (broker), 302, 305 (evid.), 669 (sale), 722 
 
 (usage). 
 V. Spofford, 45 N. Y. 387; pp. 181 
 
 (conversion), 212 (criminal law). 
 Bassford, In matter of, 63 Barb. 161; 
 
 afE'd 50 N. Y. 509; pp. 517, 519 (N. Y. 
 
 city). 
 Bassil v. Elmore, 65 Barb. 627; pp. 63 
 
 (appeal), 436 (libel), 686 (slander). 
 Batchbllor, People ex rel. Dunk, W. & P. 
 
 R. K. Co. v. 
 Bateman v. Kuth, 3 Daly, 378; pp. 490 
 
 (negligence), 591 (practice). 
 Bates u. Coster, lflun,400;pp. 362 (frauds, 
 
 Stat, of), 658 (sale). 
 
 , GiBBS V. 
 
 , McMuLKEN V. 
 
 V. Merrick, 2 Hun, 568; pp. 25 (action), 
 
 275 (estoppel), 549 (pleading). 
 
 , Stockwell v. 
 
 , Van Valkenburgh v. 
 
 Bathgate v. Haskin, 59 N. Y. 533; pp. 77 
 
 (attorney), 440 (limit, of actions), 477 
 
 (mortgage), 554 (pleading). 
 Battell v. Burrill, 10 Abb. N. S. 97 ; 
 
 affirmed 50 N. Y. 13 ;. p. 384 (infants). 
 Batting, People v. 
 
 Baudbr v. Lasher, 5 Lans. 835 ; p. 609 
 (practice). 
 
 Baudoine, Crane v. 
 
 Bauendahl, McDonnell v. 
 
 Bauer, Scheofp v. 
 
 Baulbc v. New York & Harlem R. R. Co., 
 12^66. N. S. 310; B2 Barb. 623 ; 5 Lans. 
 436; pp. 332 (evid.), 491 (negligence). 
 
 V. , 48 How. 399 ; 59 N. Y. 856 ; pp. 
 
 332 (evidence), 456((master and servant), 
 491 (negligence), 379 (practice). 
 
 Baum, Brackets !). 1 
 
 V. Mullem, 47 N. 7. 577 ; pp. 376 (hus- 
 band and wife), 529 (parties). 
 
 Baxter, Belton v. 
 
 , Bishop t. ' 
 
 , FiTZSlMMONS V. 
 
 , Hayes, v. 
 
 !). Missouei, K. & Tex. Railway Co., 
 
 4 Hun, 630; p. 619 (practice). 
 
 , Repplier u. 
 
 V. SpUYTEN DtTYVIL, ETC. R. R. Co. , 
 
 11 Abb. N. S. 178 ; fil Barb. 428 ; pp. 
 
 391 (injunction), 644 (R. R. company). 
 Beach v. Eager, 3 Hun, 610 ; p. 566 (plead.) 
 V. HoLLisTER, 3 Hun, 519 ; pp. 247 
 
 (deeds), 388 (execution). 
 V. Mayor, etc. of NeW' York, 45 How. 
 
 357; pp. 512 (W. Y. City), 531 (partition). 
 V. Reynolds, 64 Barb. 506 ; affirmed 
 
 53 N. Z. 1 ; p. 2 (abate, and revivor). 
 Beadle v. Whitlock, 64 £arb. 287 ; pp. 16 
 
 (action), 159 (contract). 
 Bbadleson v. Knapp, 13 Abb. N. S. 335 ; 
 
 p. 718 (trusts). 
 Beal v. Miller, 1 Hun, 890; pp. 265 (eject- 
 ment), 705 (ten. in com.), 744 (will). 
 Bbals ?'. Stewart, 6 Lans. 408; pp. 263 
 
 (easement), 714 (trespass). 
 
 , Terwilliger v. 
 
 Bean, Agricultural Insurance Co. v. 
 
 V. BowEN, 47 How. 306 ; p. 744 (will). 
 
 V. KiAH,4 Hun, 171 ; p. 381 (bus. & wf.) 
 
 , Cooper v. 
 
 Beard u. Root, 4 Hun, 356; p. 101 (bills 
 
 and notes). 
 V. SiNNOTT, 35 N. Y. Supr. 51 ; pp. 59 
 
 (appeal), 338 (execution), 696 (surrogate). 
 V. , 38 N. Y. Supr. 536; pp. 151 (con- 
 
 stitut'l. law), 385 (exec), 689 (statutes). 
 
 V. Yates, 2 Hun, 466; p. 566 (pldgs.) 
 
 Beare, Carpenter v. 
 
 Beatson v. Elwbll, 49 N. Y. 678 ; p. 132 
 
 (charter party). 
 Bbattie v. Niagara Savings Bank, 41 
 
 Hov) 137 ; p. 597 (practice). 
 
768 
 
 TABLE OF CASES. 
 
 Beatty v. Mtees, 4 Hun, 266 ; p. 65 
 
 (appeal) . , 
 
 Bbck v. Allison, 36 N. T. 366 ; reversing 
 
 4 Daly, 421; pp. 32 (ameadment), 678, 
 
 681 (specific performance)) 
 V. Sheldon, 48 N. Y. 365; pp. 45 (ap- 
 peal), 658, 667 (sale). 
 Becker v. Holdridge, 47 IIo\i\. 429 ; pp. 266, 
 
 267 (eject.), 288 (avid.), 704 (taxes). 
 Becker v. Howard, 4T How. 423; rev'd 
 
 4 Hun, 359; pp. 266, 267 (ejectment), 
 
 288 (evidence), 477 (mortgage). 
 
 , Mc Combs u. 
 
 Beckman, Miner v. 
 
 Beckwith, In matter op, 3 Hun, 443 ; pp. 
 
 159 Contract), 383 (idiots). 
 
 . , Empire State Life Lfs. Co. v. 
 
 , Newman u. 
 
 V. N. Y. Central R. R. Co., 64 Barb. 
 
 299; pp. 303, 308, 325 (evidence), 505 
 
 (new trial). 
 V. Smith, 4 Lans. 182 ; pp. 488 (ne exeat), 
 
 527 (office, etc.) 
 V. Whalen, 5 Lans. 376 ; p. 374 (high- 
 way), 579 (practice). 
 Bedell v. Bedell, 3 Hun, 580 ; p. 175 
 
 (contract). 
 V. Long Island R. R. Co., 44 N. Y. 
 
 367; pp. 326 ievidencei, 492 (negligence). 
 V. Shaw, 59 iV'. Y. 46 ; pp. 29 (adverse 
 
 possession), 286, 268 (ejectment). 
 Bedlow, Uptok, v. 
 Bbebe, Brisbake u. 
 
 V. Kenyok, 3 Eun, 73 ; p. 612 (pract.) 
 
 «. McKekzie, 47 iV. Y. 662 ; pp. 176 
 
 (contract), 419 (jurisdiction). 
 
 , Platt v. 
 
 y. Ranger, 35 N. Y. Supr. 452 ; p. 109 
 
 (broker). 
 Bbbcher, Gates w. 
 
 , TiLTON V. 
 
 Beers v. Hekdrickson, 45 N. Y. 665 ; aSg 
 6 Roi. 53 ; pp. 77 (att'y), 610 (practice). 
 
 Beglby v. Chase, 4 Daly, 157 ; p. 259 (Dis- 
 trict Court of New York). 
 
 Begoden, Cassidat v. 
 
 Beisbgel v. New York Central R. R. Co., 
 14 AVb. N. S. 29 ; pp. 332 (evidence) ,501, 
 502 (negligence). 
 
 Belden, Allbbton v. 
 
 V. Baxter, 56 N. Y. 411 ; p. 590 (pract.) 
 
 , FiTZGE ALD V. 
 
 , Hackett v. 
 
 , Johnson v. 
 
 1). Meeker, 47 N. Y. 307 ; p. 85 (banks, 
 
 &c.) 
 
 , Smith v. 
 
 , Wood v. 
 
 BelDing v. Leichardt, 56 N. Y. 680; p. 
 
 737 (will). 
 
 , Merchant, v. 
 
 , Talcott v. 
 
 Belgbr v. Dinsmore, 51 N. Y. 166 ; revg 
 
 51 Barb. 69 ; 34 How. 421 ; pp. 116 
 
 (carrier), 282 (evidence). 
 Belknap v. Bender, 4 Hun, 414; p. 361 
 
 (frauds, statute of). 
 Bell v. Champlain, 64 Barb. 396 ; pp. 266 
 
 (ejectment), 295 (evidence). 
 V. Dix, 49 N. Y. 232 ; p. 655 (removal 
 
 of cau ses. 
 
 V. Dagg, 60 N. Y. 528; p. 93 (biUs, &c.) 
 
 V. Lycoming Ins. Co., 3 Hun, 409; p. 
 
 654 (removal of causes). 
 
 , McGrath v. 
 
 V. Pierce, 51 N. Y. 12; affirming 48 
 
 Barb. 51. See Digest, vols. i. & iii. 
 
 , Stemlb v. 
 
 u. Warn, 4 Hun, 406; p. 752 (wiU). 
 
 Bellinger v. Bentley, 1 Hun, 562; p. 162 
 
 (contract). 
 V. Gray, 51 iV. Y. 610; pp. 255 (de- 
 fense), 702 (taxes). 
 Bellows v. Elmkndorp, 7 Lans. 462; p. 543 
 
 (penal actions). 
 Belmont, Bailey v. 
 
 , Ford v. 
 
 , O^Mahonby v. 
 
 a. Ponvebt, 35 N. Y. Supr. 208; p. 167 
 
 (contract). 
 v.. , 38 N. Y. Supr. 425; p. 199 
 
 (costs). 
 Belton u. Baxter, 2 Sweeny, 839; pp. 502 
 
 (negl.), 591 (practice). 
 V. , 14 Abb. N. S. 404; 54 N. Y. 
 
 245; rev'g 33 N. Y. Supr. 182; p. 497 
 
 (negl.) 
 
 V. , 58 N. Y. 411 ; 590 (pract.) 
 
 Bender, Belknap, v. 
 
 , Hilton v. 
 
 Bendbtson v. French, 46 N. Y. 266; p. 393 
 
 (innkeeper). 
 Benedict v. Cowden, 49 N. Y. 396; p. 95 
 
 (biUs and notes). 
 V. DeGroot, 45 .ffoto. 384; p. 596 (prac- 
 tice). 
 , Gutta Pekcha & Rubber Manue'g 
 
 Co. u. 
 V. Nat. Bank op the Commonwealth, 
 
 4 Daly, 171; p. 17 (actions). 
 
 , Sanger v. 
 
 , People ex rel. Kilbourne v. 
 
TABLE OF CASES. 
 
 769 
 
 , Sands v. 
 
 Benjamin «. Aenold, 2 Hun, 447; p. 322 
 
 (evidence). 
 V. Elmira, Jeff. & Can. R. R. Co., 54 
 
 N. Y. 675; pp. 278 (estop.), 476 (mort.) 
 Bennee, Feank v. 
 Bennett v. Austin, 5 Hun, 536; pp. 503 
 
 (new trial), 755 (witness). 
 
 , BlXBY V. 
 
 , Collins v. 
 
 ■ ■ V. Cook, 43 N. Y. 537; p. 439 (lim. of 
 
 actions). 
 
 V. , 45 N. Y. 268; pp. 351 (former 
 
 adj.), 439, 441 (lim. of actions). 
 
 V. , 2 Hun, 526; pp. 413 (interest), 
 
 471 (mortgage). 
 
 , Gardner v. 
 
 , Gould v. 
 
 V. Lake, 47 N. Y. 93; pp. 36, 64 (ap- 
 peal), 602 (practice). 
 
 V. Matthews, 64 Barb. 410; pp. 57 
 
 (appeal), 436, 437 (libel), 594 (pract.) 
 
 V. McGuiRE, 5 Lans. 183; pp. 209 (cred. 
 
 bill), 314 (evidence), 359 (frauds, stat. of). 
 
 , More v. 
 
 V. N. Y. Cent. & Hud. Riv. R. R. Co., 
 
 5 Hun, 599; p. 644 (R. R. Co.) 
 
 , People v. 
 
 , Shirley v. 
 
 , southwoeth v. 
 
 V. Stevenson, 53 N. Y. 508; pp. 35 
 
 (appeal), 478 (mortg.) 
 
 , woodworth v. 
 
 Beningee, Feank v. 
 
 Bensel v. Galt, 2 Hun, 678 ; p. 601 (praot.) 
 «. Gray, 38 N. Y. Supr. 4A1; pp. 59 (ap- 
 peal), 207 (cov.), 274 (estop.), 726 (vend. 
 
 and purch.) 
 I). Lynch, 44 N. Y. 162 ; afl'g 2 Rol. 
 
 448. See Digest, vol. i. 
 Bbntley, Bellinger v. 
 
 , Foot v. 
 
 —. — , Thrasher v. 
 
 Benton v. Maetin, 52 N. Y. 570 ; p. 92 
 
 (biUs and notes). 
 V. WicKwiRE, 54 N. Y. 226; pp. 459 
 
 (mech.'s lien), 684 (stats.) 
 
 , Cramer v. 
 
 Berdan k. Sedgwick, 44 N. Y. 626 ; afi'g 
 
 40 Barb. 359. See Digest, vol. iii. 
 Bbrdell, Roberts v. 
 Berding, Bragelman v. 
 Berge, Stewart v. 
 Bergen, Bailey v. 
 V. Mayor, etc. of N. T., 5 Hun, 243; 
 
 p. 508 (N. Y. City). 
 49 
 
 , People ex rel. Day v. 
 
 Bergh, Christie v. 
 
 V. Bosteed, 4 Hun, 661 ; p. 384 (in- 
 junction). 
 
 Berlin, Duncan v. 
 
 Bernbr u. Mittnacht, 2 Sweeny, 582 ; p. 
 585 (practice). 
 
 Beenhaed, Blake v. 
 
 V. Kapp, 11 Abb. N. S. 342 ; p. 197 
 
 (costs). 
 
 V. Seligman, 54 N. Y. 661; p. 607 
 
 (practice). 
 
 Bernheimee, Kelly v. 
 
 , Lee v. 
 
 Bernstein v. Sweeny, 33 N. Y. Supr. 271 ; 
 
 p. 82 (bailm.) 
 Berrian, In Matter of, 44 How. 216 ; p. 
 
 89 (bankruptcy). 
 V. Mayor, etc. of New York, 15 Abb. 
 
 N.S. 207; p. 555(pldg.) 
 V. Sanford, 1 Hun, 625; pp. 299 (evi- 
 dence), 602 (practice). 
 Berry, Lewis v. 
 Bettinger v. Bridenbbcker, 63 Barb. 395; 
 
 pp. 177 (contract), 715 (trust). 
 Bbtts v. June, 51 N. Y. 274; p. 538 (parfc- 
 
 (nership). 
 , People ex rel. Schy. & U. Hud. R. R. 
 
 Co. v. 
 Beudel v. Hbttrick, 45 Hew. 198 ; 35 N. 
 
 Y. Supr. 405; pp. 20 (action), 533, 535 
 
 (partn.), 580 (pract.) 
 Beveridgb, Lytle v. 
 
 , Prindle v. 
 
 Beyer v. Marks, 2 Sweeny, 715; p. 681 
 
 (spec, perf.) 
 BicKNBLL V. Lancaster City & Co. Fire 
 
 Ins. Co., 58 iV. Y. 677; pp. 360 (frauds, 
 
 stat. of), 397 (ins). 
 BiDDLECOM, Howell v. 
 Bidwell, Elliott v. 
 BiELSCHOFSKY V. PEOPLE, 3 Hun, 40 ; afE'd 
 
 60 N. Y. 616; p. 223 (crim'l law). 
 
 BiGELOW, GaFFNEY V. 
 
 BiGLER V. Barnes, 56 N. Y. 654; p. 43 (ap- 
 peal). 
 
 V. Hall, 54 N. Y. 167; pp. 166 (con- 
 tract), 309 (evidence). 
 
 BiLDERSEE V. Aden, 12 Abb. N. S. 324 ; 62 
 Barb. 175; rev'g 10 Abb. N. S. 163; pp. 
 620 (pract.), 721 (undertaking). 
 
 Billings v. O'Brien, 45 How. 392; 14 Abb. 
 N.S. 238; 4 Daly, 556; pp. 72 (assign.), 
 182 (conv.), 312 (evid.), 362 (frauds, 
 stat. of). 
 
 , Whitbeck V, 
 
770 
 
 TABLE OF CASES. 
 
 BiNNiNGER V. Clare, 10 Abb. N. S. 264; .60 
 Barb. 113; pp. 366 (goodwill), 386 (in- 
 junction). 
 
 , Ckatee v. 
 
 , Orchard v. 
 
 BiNSSE, Genet v. 
 
 Birch, Campbell v. 
 
 BiRDSALL V. BiRDSALL, 41 How. 389 ; pp. 37, 
 45 (appeal). 
 
 V. Patterson, 51 N. Y. 43 ; pp. 42 (ap- 
 peal), 580 (practice), 723 (usury), 765 
 (witness). 
 
 Birmingham Iron Foundry v. Hatfield, 
 43 N. Y. 224; pp. 573 (practice), 731 
 (waiver). 
 
 BiscHOPF, Whitmore v. 
 
 Bishop v. Barton, 2 Hun, 436; p. 374 (high- 
 way). 
 
 V. Baxter, 8 Dali/, 176; p. 655 (re- 
 plevin). 
 
 V. Empire Trans. Co., 33 N. Y. Supr. 
 
 99; pp. 91 (bill of lading), 563 (pleading). 
 
 u. , 48 How. 119 ; p. 91 (bill of 
 
 lading). 
 
 V. , 87 N. Y. Supr. 12, 17; pp. 53 
 
 (appeal), 599 (practice). 
 , Fltnn v. 
 
 V. Garcia, 14 Abb. N. S. 69; pp. 73 
 
 (assign't), 78 (att'y), 624 (pract.) 
 
 , Hall v. 
 
 BissELL V. Campbell, 54 N. Y. 353; pp. 120 
 (carrier), 293, 319 (evid.), 628 (princ'l 
 and agent). 
 
 V. Kellogg, 60 Barb. 617 ; pp. 26 (ac- 
 tion), 138 (cloud on title), 851 (former 
 adj.), 470 (mortg.), 725 (usury). 
 
 , Sturgess v. 
 
 V. TOREEY, 65 Barb. 188; aff'd 60 N. 
 
 Y. 635; p. 23 (actions). 
 
 , TOWNSEND V. 
 
 BissiCK V. McKenzie, 4 Daly, 265 ; p. 351 
 
 (former adj.) 
 BiXBT V. Bennett, 3 Daly, 225; pp. 233 
 
 (damages), 256 (demur'ge), 451 (marine 
 
 court). 
 
 , MOORE V. 
 
 , People ex rel. Lee v . 
 
 V. Smith, 3 Hun, 60 ; 49 How. 50 ; pp. 
 
 480 (mortgage), 570 (practice). 
 V. Warden, 46 How. 239 ; p. 67 (ap- 
 
 Black, Glacius v. 
 
 , Torry v. 
 
 Blackman, Clarke v. 
 
 , Pettibone v. 
 
 Voltz v. 
 
 , Wayne & On. Collegiate Inst. v. 
 
 Black v. White, 87 N. Y. Supr. 320 ; pp. 
 
 599 (practice), 735 (waiver). 
 Black Riy. Bank v. Page, 44 JV. Y. 453 ; 
 
 p. 637 (principal and surety). 
 Blackstone m. Allemannia Fire Ins. Co., 
 
 4 Daly, 299 ; affirmed 56 N. Y. 104 ; p. 
 
 396 (insurance, fire). 
 
 Blaidsell v. Whiteford, 4 Hun, 264 ; p, 
 
 569 (practice). 
 Blain, Sager v. 
 Blair, Lansing v. 
 Blaisdell, In Matter of, 42 How. 274 ; 
 
 p. 87 (bankruptcy). 
 Blake v. Bernhard, 3 Hun, 397 ; p. 617 
 
 (practice). 
 V. Board Supervisors of Livingston 
 
 Co., 61 Barb. 149 ; p. 105 (bond). 
 V. Buffalo Creek B,. R. Co., 56 N. Y. 
 
 485 ; pp. 44 (appeal), 272 (equity), 640 
 
 (R.R. Co.) 
 
 , Carpenter v. 
 
 Blakelee v. Buchanan, 44 How. 97 ; p. 
 
 616 (practice). 
 Blakeslbe u..Utica,.City op, v. 
 Blanchard j). Blanchard; 4 Hun, 287; 
 
 pp. 743, 750, 752 (will). 
 
 , Haeter v. 
 
 V. New Jersey Steamboat Co., 59 
 
 N. Y, 292; pp. 303 (evidence), 496 
 
 (negligence). 
 V. Western Union Telegraph Co., 
 
 60 N. Y. 510 ; p. 524 (nuisance). 
 Blanck, Thurber v. 
 Blanke v. Bryant, 55 N. Y. 649 ; p. 382 
 
 (husband and wife). 
 Blashfield, Kirk v. 
 Blath, Brennan v. 
 Bleakley, Emerson v. 
 Bleecker St. & Fulton Ferry R. R. Co., 
 
 Central Crosstown R. R. Co. v. 
 Blewett v. Baker, 58 N. Y. 611 ; affirming 
 
 37 N. Y. Supr. 28 ; p. 177 (contract). 
 Bliss u. Greeley, 45 N. Y. 671 ; p. 263 
 
 (easement). 
 V. Lawrence, 48 How. 21 ; 58 N. Y. 
 
 442 ; p. 72 (assignment). 
 V. Matteson, 45 N. Y. 22 ; affirming 
 
 52 Barb. 335. See Digest, voL iv. 
 
 , Mills v. 
 
 V. MiSNER, 2 Hun, 391 ; p. 80 (action). 
 
 V. SwARTz, 7 Lans. 186 ; 64 Barb. 215; 
 
 p. 4 (accord and satisfaction). 
 Blodget v. Blodget, 42 How. 19 ; p. 610 
 
 (practice) 
 
TABLE OF CASES. 
 
 771 
 
 Blodgett, Kbke v. 
 
 V. Utica & Black Riv. B. R. Co., 64 
 
 Barb. 580 ; pp. 10 (action), 642 (R.R: Co.) 
 Blood, Cramek v. 
 Bloodgood v. Gregobt, 38 N. Y. Supr. 
 
 132; pp. 297 (evi.), 843 (exrs. &adm.) - 
 I). MiCKLB, 15 Ahh. N. S. 10,3 ; pp. 20, 
 
 21 (action), 378 (husband and wife). 
 V. Sears, 64 Barh. 71 ; pp. 345 (exrs. 
 
 andadm.), 671 (settlement). 
 Bloom, Hakton v. 
 
 , Richards v. 
 
 Bloomer v. Sturges, 58 N. Y. 168 ; p. 
 
 479 (mortgage). 
 Bloomfield & RocH National Gas Light 
 
 Co. V. Richardson, 63 Barb. 437; p. 
 
 149 (constitutional law). 
 Bloomington, In matter op .Town of, 
 
 42 How. 283 ; pp. 104 [hona-flde pur- 
 chaser), 106 (bonds), 251 (defense). 
 Blossom v. Dodd, 43 N. Y., 264 ; p. 125 (car). 
 Blott I'. RiDBB, 47 Hoio. 90 ; p. 452 (mar- 
 riage and divorce). 
 Blueridge R. R. Co., Bangs ». 
 Blum v. Hartman, 3 Daly, 47 ; pp. 3 (accord. 
 
 and sat.), 254 (defense), 424 (just, court). 
 Blumer, Williams v. 
 Bltjst, Butolph v. 
 Blydenbtjrg v. Johnson, 9 Abb. N. S. 459 ; 
 
 p. 506 (new trial). 
 Binssb, Getty v. 
 boardman, burrill v. 
 V. Gaillard, 1 Hun, 217 ; aflSrmed 60 
 
 N. F., 614 ; pp. 7 (action), 231 (custom), 
 
 279 (estoppel), 294 (evidence). 
 Board of Apportionment, People ex rel. 
 
 Baker v. 
 
 , People ex rel. Brown v. 
 
 , People ex rel. Grant v. 
 
 , People ex rel. Tenth National 
 
 Bank v. 
 
 , Board of Assessors of Albany v. 
 
 , People ex rel. Williams v. 
 
 Board op Commissioners of Pilots v. 
 
 Prost, 4 Daly, 353 ; p. 543 (penal 
 
 actions). 
 V. Pacific Mail Steamship Co., 52 
 
 N. Y. 609; p. 540 (pilots). 
 V. Spofford, 47 How. 479 ; p. 202 
 
 V. , 3 Hun, 52, 57; 49 How. 28 ; 
 
 pp. 196, 203 (costs), 731 (waiver). 
 
 V. , 4 Hun, 74 ; p. 203 (costs). 
 
 Board op Commissioners of Taxes, Peo- 
 ple ex rel. Babbitt v. 
 
 , People ex rel. Bank of Montreal v. 
 
 Board of Education op Brooklyn, 
 
 Stephens v. 
 Board op Education op New York, 
 
 Coulter v. 
 
 , Jex y. 
 
 , People ex rel. Murphy v. 
 
 Board op Excise op Ontario Co. v. Gab- 
 
 LiNGHOUSE, 45 N. Y. 249 ; p. 334 (exc.) 
 Board of Improvement, People ex rel. 
 
 Ream Pavement Co. v. 
 Board op Police Commissioners op 
 
 Brooklyn, People exrel. Presmeyerb. 
 Board op Police Commissioners op Troy, 
 
 People ex rel. Grace v. 
 Board of Supervisors op Delaware Co., 
 
 People ex rel. Johnson v. 
 
 , People ex rel. Youmans v. 
 
 Board op Supervisors of Erie Co., Buf- 
 falo & State Line R. R. Co. v. 
 
 Greene Co., People ex rel. Mott v. 
 
 Jefferson Co., Cummins v. 
 
 Kings Co., People ex rel. Hopkins v. 
 
 V. Walter, 4 Hun, 87; p. 440 (lim. of 
 
 actions). 
 
 Livingston Co., Blake v. 
 
 Madison Co., People ex rel. Oneida 
 
 National Bank v. 
 New York, Mechanics National 
 
 Bank v. 
 
 V. Miller, 4 Hun, 71 ; p. 575 (practice). 
 
 V. Tweed, 3 Hun, 682; p. 575 (pract.) 
 
 Oneida Co., Loomis v. 
 
 Orleans Co, v. Bowen, 4 Lans. 24; 
 
 pp. 131 {certiorari), 279 (estoppel), 671 
 
 (settlement), 695 (supervisors). 
 Otsego Co., People ex rel. Otsego 
 
 County Bank v. 
 Richmond Co. v. Ellis, 59 iV. Y. 620; 
 
 pp. 466 (money paid), 695 (supervisors). 
 — -■ — M. Van Clief, 1 Hun, 454; affirmed 
 
 60 N. Y. 645; pp. 323 (evidence), 467 
 
 (money paid), 695 (supervisors). 
 V. Wand EL, 6 Lans. 33 ; affirmed 59 
 
 N. Y. 645; pp. 205 (county treasm-er), 
 
 635 (principal and surety). 
 Schuyler Co. v. Bank op Havana, 
 
 5 Hun, 649 ; p. 84 (banks). 
 
 , Trustees Village op Havana v. 
 
 Sullivan Co., People ex rel. Wal- 
 ler V. 
 Ulster Co. v. Beodhead, 44 How. 
 
 411 ; pp. 79 (attorney), 575 (practice). 
 
 — — V. , 44 How. 426 ; p. 575 (practice). 
 
 , People ex rel. Pitts v. 
 
 Board of Town Auditors, People exrel. 
 
 Smith v. 
 
772 
 
 TABLE OF CASES. 
 
 Town of Hempstead, People ex rel. 
 
 Wells v. 
 
 Board of Trust, of N. Y. State Inst, for 
 Blind, People ex rel. Churchman v. 
 
 Board of Water Commissioners of Co- 
 hoes V. Lansing, 45 N. Y. 19 ; p. 289 
 (evidence). 
 
 BoDiNE V. Exchange Fire Ins. Co., 51 N. 
 Y. 117; p. 401 (insurance). 
 
 V. KiLLEBN, 53 N. Y. 93; p. 380 (hus- 
 band and wife). 
 
 ', Smith v. 
 
 BoEHM, Hadlbt v. 
 
 BOEHMB, PlTMPTON V. 
 
 BoEKLEN V. Hardenbukgh, 87 N. Y. Supr. 
 110; affirmed 60 N. Y. 8; pp. 45 (ap- 
 peal), 534 (partnership). 
 
 BoGARDus, Protestant Dutch Reform- 
 ed Church v. 
 
 BoGERT V. GuLiCK, 45 How. 385; 65 Barh. 
 322; pp. 100 (bills and notes), 380 (hus- 
 band and wife). 
 
 , MORAN V. 
 
 BOHENBLAST, WoODHULL V. 
 
 BoHM, In MATTER OF, 4 Hun, 558; pp. 519 
 (New York City), 600 (practice). 
 
 V. Goldstein, 53 N. Y. 634 ; pp. 160, 
 
 178 (contract). 
 
 BoiCE V. Hudson Riv. R. R. Co., 61 Barb. 
 611 ; p. 124 (carrier). 
 
 BoLEN V. Crosby, 49 N. Y. 183; pp. 73 
 (assignment), 192 (coi'poration), 298 (evi- 
 dence), 650 (release). 
 
 BoLLES V. Duff, 41 How. 355 ; 10 Abb. N. 
 S. 399; 43 N. Y. 469; p. 353 (former 
 adjudication). 
 
 BOMANJEB BtRAMJBB CoLAH, In MATTER 
 
 OF, 3 Daly, 529. 8. C. sub nom, Parsee 
 
 Merchants Case. 11 Abb. N. 8. 209; p. 
 
 382 (idiots, etc.) 
 Bond v. MoNiff, 38 N. Y. Supr. 83; pp. 
 
 260 (dower), 532 (partition), 751 (will). 
 V. Smith, 4 Hun, 48 ; p. 2 (abatement 
 
 and revivor). 
 BoNESTBEL V. Garlinghousb, 60 Barb. 
 
 338 ; pp. 544 (pleading), 610 (practice). 
 
 BONITZ, KOCK V. 
 BONKER, ShRADER V. 
 
 BoNNBLL V. Wheblbr, 1 Hun, 332; pp. 193 
 (corporation), 545, 547 (pleading). 
 
 Bonner, Rodgbrs v. 
 
 bonnett, hoyt v. 
 
 BooDY V. Drew, 46 How. 459; p. 27 (action). 
 
 , RocKFORD, R. I. & St. L. R. R. Co. v. 
 
 BooKSTAVEE V. Jayne, 60 N. Y. 146 ; pp. 
 97 (bills and notes), 322 (evidence). 
 
 Boomer v. Brown, 4 Daly, 229; pp. 206 
 
 (common pleas), 688 (stat. of frauds). 
 Boos V. World Mut. Life Ins. Co., 4 Lans. 
 
 133 ; pp. 557 (pleading), 593 (practice). 
 Booth v. Eighmie, 60 N. Y. 238; pp. 361 
 
 (frauds, statute of), 567 (pledge). 
 Booth v. Farmers & Mechs. National 
 
 Bank, 4 Lans. 301 ; affirmed 50 N. Y. 
 
 396; pp. 8 (action), 289 (evidence), 610, 
 
 611 (practice). 
 V. , 65 Barb. 457; pp. 544, 546 
 
 (pleading). 
 V. Powers, 56 JST. Y. 22 ; pp. 94 (bills 
 
 and notes), 239 (dam.), 287, 307 (evid.) 
 V. Spuyten Duyvil R. Mill Co., 60 
 
 N. Y. 487 ; pp. 176, 177 (contract), 234 
 
 (damages). 
 
 , Truesdell v. 
 
 , wooster v. 
 
 Boppe, Gordon, v. 
 
 Borden v. Collie, 45 N. Y. 494; affirming 
 
 1 Lans. 141. See Digest, vol. iv. 
 
 , GiLLETT V. 
 
 , Lathrop v. 
 
 V. South Side R. R. Co., 5 Hun, 184; 
 
 p. 30 (adverse possession). 
 
 Borell v. Newell, 3 Daly, 233; p. 21 (act'n.) 
 
 BoRST, Davis v. 
 
 V. Lake Shore and Michigan So. 
 
 Railway Co., 4 Hun, 346; p. 492 
 (negligence). 
 
 , Prendbrgast v. 
 
 , Smith v. 
 
 Boston and Albany R. R. Co., In matter 
 OF, 53 N. Y. 574 ; p. 641 (R. R. Co.) - 
 
 , Flike u. 
 
 V. Prbs't., etc. Village op Green- 
 bush, 5 Lans. 461 ; p. 149 (const, law). 
 
 V. , 52 N. Y. 510 ; pp. 149 (consti- 
 tutional law), 690 (statutes). 
 
 , Rose v. 
 
 , Sprong v. 
 
 , Tinney v. 
 
 Boston, N. Y. and Newport Steamboat 
 Co., Crozier v. 
 
 BosTwiCK V. Baltimore and Ohio R. R. 
 Co., 45 N. Y. 712; reversing 55 Barb. 
 137 ; pp. 116, 119 (carrier). 
 
 V. Goetzbl, 57 N. Y. 583 ; pp. 615, 616 
 
 (practice). 
 
 V. Menok, 4 Daly, 68; p. 562 (pleading). 
 
 , Stevens v. 
 
 , Westlake v. 
 
 V. WiLDEY, 42 How. 245 ; 34 JV. Y. 
 
 Supr. 23 ; p. 80 (bailment). 
 
 BoswoRTH, Hasbeouck v. 
 
TABLE OF CASES. 
 
 773 
 
 V. Vandbwalkkr, 53 N. Y. 597 ; p. 286 
 
 (evidence). 
 BoTSFOED V. Darling, 47 N. Y. 666 ; p. 425 
 
 (landlord and tenant). 
 BouTON V. BouTON, 42 How. 11 ; reversing 
 
 40 How. 217 ; pp. 604, 605 (practice). 
 
 BOVEE, FlKMENICH U.' 
 
 BowEN, Bean v. 
 
 , Board Supervisors Orleans Co. v. 
 
 , Briggs v. 
 
 , HiNMAN V. 
 
 V. Hunter, 45 How. 193 ; p. 157 (con- 
 tempt). 
 
 , Poor v. 
 
 ■ , Sanderson v. 
 
 , Sexaner v. 
 
 V. True, 53 N. Y. 640 ; p. 613 (p'ctice.) 
 
 Bower, Roberts v. 
 
 , Thompson v. 
 
 Bowerman, Tiffany u. 
 Bowers v. Arnoux, 38 N. Y. Supr. 530 ; 
 pp. 250 (deed), 290 (evidence), 340, 341 
 (execution). 
 V. Johnson, 49 N. Y. 432 ; p. 285 (evi- 
 dence). 
 Bowery National Bank, Hagen v. 
 
 V. Mayor, etc. New York, 3 Hun, 
 
 639 ; p. 170 (contract).' 
 
 ■ , Shipseyu. 
 
 Bowery Savings Bank v. Richards, 3 
 Hun, 366 ; pp. 156 (contempt), 478 
 (mortgage). 
 Bowles, Miller u. 
 
 Bowling Green Savings Bank,Guakdian 
 Savings Institution v. 
 
 V. Todd, 64 Barl. 146 ; affirmed 52 
 
 N. Y. 489 ; pp. 77, 79 (attorney). 
 Bowman v. Agricultural Ins. Co., 59 
 N. Y. 521 ; pp. 319 (evidence), 401 (in- 
 surance). 
 
 V. Travis, 54 N. Y. 640 ; p. 705 (tenant 
 
 in common). 
 Bovra^E, Silver v. 
 
 V. Underhill, 4 J2m«,.130 ; p. 749 (will). 
 
 BowNES V. Weld, 3 Daly, 253; p. 14 (act'n.) 
 BowNS, Delaware, Lackawanna and 
 
 Western R. R. Co. v. 
 Boyce, Harden v. 
 
 V. People, 55 N. Y. 644 ; pp. 214,225, 
 
 230 (criminal law). 
 V. Washburn, 4 Hun, 792 ; p. 180 (con- 
 tract). 
 Boyd, Briggs v. 
 
 V. De La Montaigne, 47 How. 433 ; 
 
 1 Hun. 696 ; p. 272 (equity). 
 
 V. DowiE, 65 Barb. 237; pp. 5 (action, 
 
 271 (equity), 530 (partition). 
 
 V. FiNNEGAN, 3 Daly, 222 ; p. 102 (bills 
 
 and notes). 
 
 V. HowDEN, 3 Daly, 455; pp. 17 (action), 
 
 259 (district court). 
 
 V. ScHLESNGER, 59 N. Y. 301 ; pp, 138 
 
 (cloud on title), 168 (contract), 285 (evi- 
 dence), 678 (specific performance). 
 
 , Southard v. 
 
 BoYER V. Brown, 1 Hun, 615; p. 59 (app'l.) 
 
 , Smith v. 
 
 BOYLAN, FiTZPATRICK V. 
 
 BOYLSTON V. Wheeler, 2 Hun, 622 ; pp. 
 
 257 (determining claims) , 328 (evidence). 
 BoYNTON V. BoYNTON, 43 How . 380 ; pp. 17 
 
 (actions), 304 (evidence), 566 (pl'dings.) 
 V. Hatch, 47 N. Y. 225 ; pp. 189 (cor- 
 poration), 333 (evidence). 
 
 , Wilder v. 
 
 Bracken, Eitel v. 
 
 Brackett v. Baum, 50 N. Y. 8; p. 260 
 
 (dower), 475 (mortgage). 
 
 V. Wyman, 48 N. Y. 667; p. 178 (c'tract.) 
 
 Bradford v. Bradford, 51 N. Y. 669; pp. 
 
 289 (evidence), 583 (practice). 
 Bradley v. Dodge, 45 How. 57 ; pp. 159 
 
 (contract), 633 (principal and agent.) 
 V. KiNGSLBY, 43 N. Y. 534 ; p. 178 
 
 (contract). 
 V. Mutual Benefit Life Ins. Co., 45 
 
 N. Y. 422 ; reversing 3 Lans. 841 ; pp. 
 
 405 (insurance), 587 (practice). 
 , People ex rel., Kingsland v. 
 
 , PUSEY V. 
 
 , SCHULTZ V. 
 
 V. Ward, 58 N. Y. 401 ; p. 702 (taxes). 
 
 , Wbnde v. 
 
 V. Wheeler, 44 N. Y. 495 ; affirming 
 
 4 Roh. 18 ; p. 822 (evidence). 
 Bradner, Chemung Canal Bank v. 
 Bradstreet, Sunderlin v. 
 Bradt v. City of Albany, 5 Hun, 591 ; pp. 
 
 485 (m'cipalcorporat'n), 550 (pleading). 
 Brady v. Brundagb, 59 N. Y. 310 ; pp. 37 
 
 (appeal), 672 (sheriff). 
 
 , People ex rel., Lawrence v. 
 
 V. Rensselaer and Sar. R. R. Co., 
 
 \Hun, 378; p. 644 (R. R. Co.) 
 
 , Wheeler v. 
 
 Bragelman v. Berding, 15 Ahb. N. S. 22 
 
 p. 574 (practice). 
 Bramhall, Lathropv. 
 Branch v. Harrington, 49 How. 196 ; p. 
 
 613 (practice). 
 Brand v. Brand, 48 N. Y., 675; p. 862 
 
 (frauds, statute of). 
 Brandon, Flewelling v. 
 
774 
 
 TABLE OF CASES. 
 
 Bkandt, Crofut v. 
 
 , Dbv(b v. 
 
 , Kipp V. 
 
 Branning v. HotusTER, 5 Hun. 351 ; p. 727 
 
 (vendor and purchaser). 
 Brash v Wielarskt, 36 How. 253 ; p. 618 
 
 (practice). 
 Braunsdorp, Coit v. 
 
 Brayv. Poillon, 2 Hun. 383; p. 628 (pract.) 
 Braynard, Danklessen v. 
 Breed, Nokris v. 
 
 , Town of Venice v. 
 
 Breesb D. United States Telegraph Co., 
 
 48 iV. r. 132 ; aflarming 45 Barb. 274; 31 
 
 How. 86. See Digest, vols. i. and iii. 
 Brbnn v. City of Troy, 41 How, 475 ; 60 
 
 Barb. 417 ; pp. 486 (mnnioipal corpora- 
 tions), 714 (Troy). 
 Bhennan v. Blath, 3 Daly, 478 ; p. 354 
 
 (former adjudication). 
 
 , English v. 
 
 , holbrook v. 
 
 , Horn v. 
 
 , Hunt v. 
 
 V. LowRY, 4 Daly, 253 ; pp. 96 (bills 
 
 and notes), 296 (evidence) , 564 (p'ding.) 
 V. Mayor, etc. of New York, 47 How. 
 
 178 ; 1 Hun, 315; pp. 350 (former ad- 
 judication). 
 
 , People ex rel. Hewlett v. 
 
 , People ex rel. Jennys v. 
 
 , Pollack v. 
 
 V. Security Life Ins. and Annuity 
 
 Co., 4 Daly, 296; pp. 407 (ins.), 578 
 
 (practice.) 
 
 , Watson v. 
 
 Bkbsler, Tallman v. 
 Breslin, City of Brooklyn v. 
 
 , Mason v. 
 
 Brett v. Brown, 13 Abb. N. S. 295; p. 730 
 
 (w£|.iver), 757 (witness.) 
 
 , Delaney v. 
 
 V. First Un. So., 63 Barb. 610; pp. 4 
 
 (accord and satisfaction), 557 (pledge), 
 
 602 (practice.) 
 
 V. , 5 Hun, 49; p. 24 (action.) 
 
 Bebvoort v. Grace, 53 N. Y. 245 ; p. 145 
 
 (constitutional law.) 
 Brewer, Heard u. 
 Brewster, Darling v. 
 
 In re. 41 How. 406 ; p. 88 (bankr.) 
 
 „. Taylor, 39 N. Y. Supr. 159; p. 659 
 
 'sale.) 
 Brewster Iron Mining Co., Marvin v. 
 Briant v. Trimmer, 47 N. Y. 96; p. 41 
 
 (appeal) 
 
 Bkidenbecker, Bettinger v. 
 
 Bridge, Jones v. 
 
 Bridgbr v. Pibrson, 45 N. Y. 602; revers- 
 ing 1 Lans. 481 ; p. 249 (deed.) 
 
 Bridgford v. Crocker, 60 N. Y. 627; pp. 
 16 (action), 668 (sale.) 
 
 Bbigaldi, Funk v. 
 
 Briggs, Bailey v. 
 
 V. Bo WEN, 60 N. Y. 454, 646; pp. 305 
 
 (evidence), 352 (former adj.) 
 
 V. Boyd, 56 N. Y. 289; affirming 65 
 
 Barb. 197; pp. 55 (appeal), 297 (evi- 
 dence), 347 ffactor), 465 (money paid), 
 503 (new trial.) 
 
 V. Easterly, 62 Barb. 51; p. 192 (cor- 
 porations.) 
 
 , Lutes v. 
 
 , Meekitt v. 
 
 V. Mitchell, 60 Barb. 288; pp. 357 
 
 (fraudt. conv.), 377 (husb. and wife.) 
 
 V. North Am. and Mercantile Ins. 
 
 Co., 53 JSr. Y. 446; p. 397 (ins.) 
 V. Partridge, 39 N. Y. Supr. 339 ; pp. 
 
 630 (prin. and agt.), 679 (spec, perf.) 
 , People ex rel. City of Rochester v. 
 
 V. Smith, 4 Daly, 110 ; pp. 162 (con- 
 tract), 310 (evidence), 535 (partnership.) 
 
 Brignoli v. Chicago and Great Eastern 
 Ry. Co., 4 Daly, 182; pp. 238 (damages), 
 298 (evidence), 595 (practice.) 
 
 Brill, Clearwater v. 
 
 Brink v. Gould, 43 How. 289; 7 Lans. 425; 
 p. 365 (gift.) 
 
 , Greenwood v. 
 
 , Moore v. 
 
 Brinkerhoff, Graves v. 
 
 Brinkley v. Bbinklby, 56 N. Y. 192 ; p. 
 599 (practice.) 
 
 V. , 47 N. Y. 40; pp. 34, 36 (app.), 
 
 158 (contempt), 576 (practice.) 
 
 — - V. — , 50 iV. Y. 184 ; pp. 853 (former 
 (adj.), 453 (marr. and div. ) 
 
 Briaso v. Pacific Mutual Ins. Co., 4 
 Daly, 246; pp. 172 (contract), 411 (in- 
 surance.) 
 
 Brisbane v. Beebe, 48 N. Y. 631; p. 11 
 (action.) 
 
 Brittenstool v. Michaels, 56 N. Y. 607; 
 p. 160 (contracts.) 
 
 Beitton v. Lorenz, 3 Daly, 23; affirmed 45 
 N. F. 51; pp. 74 (assignment for benefit, 
 etc.), 312, 316, 321 (evidence.) 
 
 V. Richards, 13 Abb. N. S. 258 ; pp. 
 
 614, 615 (practice.) 
 
 , Smith v. 
 
 Broadbbnt, Middlebrook v. 
 
TABLE OF CASES. 
 
 775 
 
 Broadhead, Lund v. 
 
 Broadway, In matter op widening, 42 
 
 How. 220; 61 Barb. 483; affirmed 49 
 
 N. Y. 150; pp. 148 (oonst'l law), 514, 
 
 519 (N. Y. city). 
 V. , 63 Barb. 572 ; pp. 150, 154 (const. 
 
 law), 520 (N. Y. City), 695 (supr. court.) 
 , In matter op lien on, 15 Abb. N. S. 
 
 335; p. 461 (mechs. lien.) 
 Broadway and Seventh Ave. R. R. Co., 
 
 Dickson v. 
 
 , POULIN V. 
 
 , Putnam v. 
 
 Broadway, etc. Stage Co. v. American 
 
 Soc'y por Prevention op Cruelty 
 
 to Animals, 15 Abb. N. S. 51; pp. 33 
 
 (animals), 157 (contempt), 388 (injunct.) 
 Brock o. Piekson, 46 N. Y. 690; p. 49 
 
 (appeal). 
 Broderick v. James, 3 Daly, 481; pp. 435 
 
 (libel), 676 (slander). 
 Brodhead, Board op Supervisors of 
 
 Ulster Co. v. 
 Broistedt v. South Side Railway Co. 
 
 op Long Island, 55 N. Y. 220; pp. 245 
 
 (deed), 386 (injunction). 
 Bronson v. Bkonson, 48 How. 481; pp. 341 
 
 (exrs. and adm.), 718, '721 (trust), 745 
 
 (will). 
 
 V. DiMOCK, 4 Hun, 614; p. 192 (corp.) 
 
 , Foot v. 
 
 , Rochester City v. 
 
 Brockhaven, Trustees op, v. Strong, 60 
 
 N. F. 56; p. 349 (fishery). 
 Brookins, Jackson v. 
 Brooklyn, City op, v. Breslin, 57 N. Y. 
 
 591; p. 113 (BrooHyn). 
 . V. Brooklyn City R. R. Co., 47 N. Y. 
 
 475; affirming 8 Abb. N. S. 356; 57 
 
 Barb. 497 ; p. 106 (bond). 
 
 , Cassidy v. 
 
 , Gray v. 
 
 , Heard v. 
 
 , HOGAN V. 
 
 —. — V. Lott, 2 Hun, 628. S. C. sui nom, 
 In matter of Prospect Park, 60 N. Y. 
 398 ; pp. 112 (Brooklyn), 486 (municipal 
 corporation). 
 
 , Marsh v. 
 
 , People ex rel. Brooklyn Park Com- 
 missioners V. 
 
 , People ex rel. Meeker v. 
 
 , Riley v. 
 
 , Sorchan v. 
 
 Brooklyn City, etc. R. R. Co., Bahrbn- 
 burgh v. 
 
 , Brooklyn, City op, v. 
 
 , Dale v. 
 
 , Fallon v. 
 
 , Spooner v. 
 
 Brooklyn Daily Union v. Hayward, 11 
 
 Abb. N. S. 235; p. 615 (practice). 
 Brooklyn Fire Ins. Co., Cromwell v. 
 Brooklyn Gas Light Co., Ford v. 
 Brooklyn Groc. Manup. Assn., Gil- 
 christ V. 
 Brooklyn Oil Repinery v. Brown, 42 
 
 Hmo. 286 ; p. 593 (practice). 
 Brooklyn Park Commissioners v. Arm- 
 strong, 45 N. Y, 234; pp. 113 (Brook- 
 lyn), 148 (const, law), 681 (spec, perfce.) 
 Brooklyn Savings Bank, Hayden v. 
 Brooklyn Skating Rink Assn., Jame- 
 son V. 
 Brooklyn Trust Co. v. Bulmer, 49 N. Y. 
 
 84 ; p. 570 (practice). 
 Brookman v. Hamill, 43 N. Y. 554; revers. 
 ing 54 Barb. 509; pp. 11 (action), 28 
 (admiralty), 154 (constitutional law). 
 
 V. , 46 N. Y. 636 ; p. 732 (waiver). 
 
 V. Millbank, 50 N. Y. 378; p. 599 
 
 (practice). 
 Brooks v. Curtis, 4 Lans. 283 ; pp. 264 
 (easement), 280 (estoppel), 539 (party 
 wall). 
 _:_ „. , 50 N. Y. 639; pp. 264 (ease- 
 ment), 539 (party wall). 
 
 , Gregory v. 
 
 V. People, 49 N. Y. 436 ; p. 214 (crim- 
 inal law). 
 
 V. ScHWERiN, 54 N. Y. 343; pp. 375 
 
 (husband and wife), 489 (negligence), 
 590 (practice). 
 Bronk, Slingerland v. 
 Brown, Allen v. 
 
 , Bain v. 
 
 , Boomer v. 
 
 , BOYER V. 
 
 , Brett v. 
 
 , Brooklyn Oil Repinbky v. 
 
 V. Brown, 58 N. Y. 609 ; reversing 1 
 
 Hun, 443 ; p. 605 (practice). 
 
 '- V. , 2 Hun, 677 ; p. 605 (practice). 
 
 V. Burhans, 4 Hun, 227; p. 665 (sale). 
 
 V. Cherry, 57 N. Y. 645 ; reversing 59 
 
 Barb. 628 ; p. 716 (trusts). 
 
 V. Clipfokd, 7 Lans. 46 ; pp. 321 (evi- 
 dence), 353 (former adjudication) , 586, 
 599 (practice). 
 
 , COGSDILL V. 
 
 , Color Printing Attachment Co. v. 
 
 , Crosby v. 
 
776 
 
 TABLE OF CASES. 
 
 , Gumming v. 
 
 , Dawley v. 
 
 V. Elliott, i5 How. 182; i Daly, 329; 
 
 pp. 240 (dam.), 305, 325 (evid.) 
 
 V. Elwbll, 60 N. Y. 249 ; p. 543 
 
 (pilot). 
 
 V. Green, 46 How. 302; p. 512 (New 
 
 York city). 
 
 V. Hall, 5 Lans. 177; p. 594 (practice), 
 
 660 (sale). 
 , Jbnks v. 
 
 — V. Kbeney Set. Cheese Association, 
 59 N. Y. 242; pp. 37 (appeal), 478 
 (mortgages). 
 
 , Knapp v. 
 
 , KUHN V. 
 
 V. Leigh, 12 Alh. N. S. 193; 49 N. Y. 
 
 78; p. 564 (pleading). 
 V. , 13 Abh. N. S. 305 ; 50 N. Y. 
 
 427 ; pp. 38 (appeal), 196 (costs). 
 
 — V. , 52 N. Y. 78 ; p. 49 (appeal). 
 
 — V. Matoe, etc. of New York, 1 Hun, 
 30; p. 511 (New York city). 
 
 — V. , 3 Hun, 685 ; pp. 318 (evidence), 
 
 419 (jurisdiction), 510 (N. Y. city). 
 
 — V. McKbe, 57 N. Y. 684; p. 539 (party 
 wall). 
 
 — V. Mercer, 37 N. Y. Supr. 265; pp. 
 308 (injunction), 712 (trademark). 
 
 — , Miles v. 
 — , Miller v. 
 
 — V. New York Central R. R. Co., 44 
 N. Y. 79; p. 161 (contract). 
 
 — V. NiBss, 46 Hotv. 465; 15 AN,. N. S. 
 344; pp.60, 161 (appeal). 
 
 — V. Northrop, 15 Abi. N. S. 333; p. 
 624 (practice). 
 
 — , Parsons v. 
 
 — , People ex rel. Martin v. 
 
 — V. Post, 1 Hun, 303; p. 634 (prin. and 
 
 -, RiLET V. 
 
 -, Rockwell v. 
 
 -, Root v. 
 
 -V. Snbll, 57 iV. Y. 286 ; pp. 205 (county 
 court), 368 (guard, and ward). 
 
 - V. St. Nicholas Ins. Co., 34 JV. Y. 
 Supr. 231; p. 412 (insurance). 
 
 -, Stebbins v. 
 
 -, Stokes v. 
 
 -, Tbbwilligee v. 
 
 -, Thompson v. 
 
 -, tochman v. 
 
 -V. Town op Canton,-49 N. Y. 663 ; re- 
 versing 4 Lans. 409 ; pp, 528 (parent 
 and cBild), 708 (town). 
 
 V. .Welch, 5 Hun, 582 ; y. 461 (me- 
 chanics' lien). 
 
 , White v. 
 
 V. WiNDMULLER, 14 Abb. N. S. 359 ; 
 
 36 N.Y. Supr. 75; pp. 199, 201 (costs). 
 
 Browne v. Cochran, 46 How. 427; p. .270 
 (equity). 
 
 V. Vbedbnburgh, 43 N. Y. 195; pp. 
 
 320 (evidence), 722, 725 (usury). 
 
 Brownell, First Soc't. M. E. Church v. 
 
 Browning, O'Brien v. 
 
 , Stone v. 
 
 , Stuyvesant v. 
 
 Bruce v. Kelly, 5 Hun, 229 ; pp. 352 
 (former adjudication), 613 (practice). 
 
 V. , 39 N. Y. Supr. 27 ; pp. 58 (ap- 
 peal), 284, 316 (evidence), 340 (execu- 
 tion); 357 (fraud), 551 (pldg.), 757 (witn.) 
 
 V. Wright, 3 Hun, 548; pp. 97 (bills and 
 
 notes), 166 (contract). 
 
 Bkundage, Bkady v. 
 
 V. Brundagb, 60 N. Y. 544 ; affirming 
 
 65 Barb. 397 ; pp. 751, 754 (will). 
 
 V. Domestic and For. Miss. Socy., 
 
 60 Barb. 204 ; pp. 476 (mort.), 746 (wiU). 
 
 , townsend v. 
 
 Brundrett, Cushman v. 
 
 , PiSTOR V. 
 
 Brunnell, People v. 
 
 Brunnbr, Fiblmann v. 
 
 Brush, Levy v. 
 
 Bryan v. Baldwin, 7 Lang. 174 ; affirmed 
 52 JSr.Y. 232 ; pp. 183 (conversion), 567, 
 568 (pledge), 732 (waiver). 
 
 V. Landon, 3 Hun, 500 ; p. 374 (high- 
 way). 
 
 Bryant, Blanke v-. 
 
 , Foote v. 
 
 , Samuels v. 
 
 Bryoe v. Loeillard Fire Ins. Co., 46 
 How. 498; 55 N. Y. 240; affirming 35 
 N. Y. Supr. 394; pp. 43 (appeal), 320 
 (evidence), 403 (insurance), 457 (max- 
 ims), 650 (reforming contract). 
 
 Buchanan, Blakelee v. 
 
 , LOSEE V. 
 
 , Marvin v. 
 
 Buchanan Farm Oil Co. v. Woodman, 1 
 Hun, 639 ; p. 614 (practice). 
 
 Buck v. Amidon, 41 How. 370 ; 4 Daly, 126 ; 
 p. 633 (principal and agent). 
 
 V. City of Lockport, 43 How. 361 ; 6 
 
 Lans. 251; pp. 9 (actions), 443 (Look- 
 port), 447 (mandamus). 
 
 w- , 43 How. 283 ; pp. 200, 201 (costs), 
 
 673 (sheriff). 
 
TABLE OF CASES. 
 
 777 
 
 50 iV. Y. 663 ; p. 320 
 
 , Simpson v. 
 
 V. Stanton, 51 N. Y. 624; p. 755 
 
 (witness). 
 
 Bucking, Bowling v. 
 Buckingham, Isham v. 
 
 V. Dickinson, 54 N. Y. 682 ; p. 33 
 
 (amendment). 
 , Lantz v. 
 
 BUDD V. SlNCLAIB, 
 
 (evidence). 
 
 BUDDBNSICK, BLaDEN V. 
 
 BuBL, Trustees Village or Canajoha- 
 
 RIE V. 
 
 BtTELL, Bailey v. 
 
 Buffalo, City of, Babcock v. 
 
 , Buffalo City Cemetery v. 
 
 , Buffalo and Ham. Turnpike Co. v. 
 
 , Buffalo Union Iron Works v. 
 
 , Tifpt v. 
 
 Buffalo City Cemetery v. City op Buf- 
 falo, 46 N. Y. 503, 506 ; pp. 128 (ceme- 
 tery), 486 (municipal corporation). 
 
 Buffalo, Corning and New York R. R. 
 Co., Stevens v. 
 
 Buffalo, Coery and Pitt. R. R. Co., 
 Metz v. 
 
 Buffalo Creek R. R. Co., Blake v. 
 
 Buffalo and Erie R. R. Co., Penn v. 
 
 Buffalo and Hamburgh Turn. Co. v. 
 City of Buffalo, 58 N. Y. 639 ; pp. 
 114 (Buffalo), 484 (municipal corp.) 
 
 Buffalo Hydraulic Ass'n., Evangelical 
 LuTH. St. Johns Prphan's Home v. 
 
 Buffalo and Jamestown R. R. Co., In 
 Matter of, 5 Hun, 485 ; pp. 148 (con- 
 stitutional law), 711 (towns). 
 
 Buffalo, N. Y. and Erie R. R. Co., Con- 
 HOCTON Stone Co. v. 
 
 , Sampson v. 
 
 V. Stevens, 51 N. Y. 659 ; p. 467 
 
 (money paid). 
 
 Buffalo and State Line R. R. Co. v. 
 Board Supervisors op Erie Co., 48 
 N. Y. 93; pp. 418 (juris.), 701, 704, (tax). 
 
 , Fbnnbr v. 
 
 , WOHLER V. 
 
 Buffalo Union Iron Works v. City op 
 Buffalo, 13 Abb. N. S. 141. Affirmed, 
 47 N. Y. 671; pp.114 (Buffalo), 281 
 (evidence). 
 
 BuGSBEE, Woodward v. 
 
 Bulkley, Lewis v. 
 
 , Pblton v. 
 
 Bull, People ex rel. Fowlek v. 
 
 Bullard v. Pbarsall, 46 How. 383 ; Affd, 
 Id., 530 ; p. 64 (appeal). 
 
 V. , 53 N. Y. 230; pp. 64(app.), 580 
 
 (practice). 
 Bullis v. Montgomery, 50 N. Y. 352 ; pp. 
 
 305, 313 (evidence), 527 (officer). 
 Bull's Head Bank, Murray v. 
 BuLLYMORB v. CooPBR, 46 N. Y. 236; Affg. 
 
 2 Lans. 71 ; p. 273 (escape). 
 BuLMBR, Brooklyn Trust Co. v. 
 Bunaclaugh v. Poolman, 3 Daly, 236; pp. 
 
 133 (chat, mortg.), 61.3 (practice). 
 Bund " Hand in Hand," World Mutual 
 
 Life Ins. Co. v. 
 
 BUNDY, FaRRINGTON V. 
 
 , Ward v. 
 
 Bungay, Hedges v. 
 
 BuNGE V. Koop, 48 N. Y. 225; Affg. 5 Rob. 
 
 1. See Digest, vol. iv. 
 BuNSTER, In Matter of, 41 How. 406 ; p. 88 
 
 (bankruptcy). 
 Burbank v. Fay, 5 Lans. 897; pp. 115 
 
 (canals), 390 (inj.), 627 (prescription). 
 BuRCH «. Cavanaugh, 12 Abb. iV. S'. 410; 
 
 pp. 390 (injunction), 621 (practice). 
 
 , Simpson v. 
 
 burchard, yoorhees v. 
 
 BuECHBLL, Daly v. 
 
 V. VoORHis, 49 How. 247; p. 482 
 
 (mortgage). 
 BuRDiN V. Williamson, 5 Run, 560; pp. 
 
 282 (evidence), 629 (prin. and agt.) 
 Burger v. Hughes, 5 Hun, 180 ; p. 476 
 
 (mortgage). 
 Burgess, Levy v. 
 V. SiMONSON, 45 N. Y. 225 ; pp. 43 
 
 (appeal), 287, 311 (evi.), 582 (practice). 
 
 , Stone v. 
 
 BuEGETT V. Edwards, 4 Lans. 193; pp. 63, 
 
 66 (appeal). 
 BuRHANS, Brown v. 
 
 , Thompson v. 
 
 , Whitaker v. 
 
 Burke, In Matter op, 2 Hun, 281; pp. 516, 
 
 519 (New York city). 
 • d.Candeb, 63BarJ.552; p. 202 (costs). 
 
 , CaNDEB !). 
 
 -, Fetherly v. 
 
 , Mbacham v. 
 
 u. People, 4 JJun, 481; pp. 213, 222 
 
 (criminal law). 
 V. Wolpk, 38 N. Y. Supr. 263 ; p. 291 
 
 (evidence). 
 
 , Wolfe v. 
 
 Buekham v. Van Saun, 14 AVb.-N. S. 163; 
 
 p. 415 (judgment). 
 Burling v. Freeman, 2 Hun, 661; pp. 560 
 
 (pleading), 732 (waiver). 
 
778 
 
 TABLE OF CASES. 
 
 V. King, 46 Bow. 452; pp. 77 (atty.), 
 
 677 (spec, perf.) 
 BxjKLiNGAME, Crist v. 
 BuKNELL V. New York Central K. R. 
 
 Co., 45 N. Y. 184; pp. 127 (carrier), 
 
 297 (evidence). 
 Burnett v. Wadsworth, 57 N. Y. 634; p. 
 
 246 (deed). 
 burnham, holdbn v. 
 
 , Payne v. 
 
 u. Thurman, 34 N. Y. Snpr. 536; p. 
 
 295 (evidence). 
 Burns, Bank op Albion v. 
 
 , Collins v. 
 
 Burns, Estes v. 
 
 , Lloyd v. 
 
 V. Mayor, etc. New York, 3 Hun, 212 ; 
 
 p. 522 (New York City). 
 V. People, 5 Lans. 189; 59 Barb. 531 ; 
 
 p. 216 (criminal law). 
 BuRNsiDE V. Matthews, 54 N. Y. 78 ; p. 
 
 82 (alien). 
 BuKR, Board of Water Commissioners 
 
 op Detroit v. 
 
 , People v. 
 
 V. Stenton, 43 N. Y. 462 ; affirming 
 
 52 Barl. 377; pp. 207 (covenant), 433 
 
 (landlord and tenant). 
 , Water Commissioners of Detroit v. 
 
 BURRILL, BaTTBLL V. 
 
 V. Boardman, 43 N. Y. 254 ; p. 740 
 
 (will). 
 Burroughs, Baldwin v. 
 V. Garrison, 15 Ahh. N. S. 144 ; pp. 
 
 555 (pleading), 605 (practice).- 
 V. Norton, 48 How. 132 ; 2 Hun, 550 ; 
 
 pp. 33 (amendment), 65 (appeal). 
 Bukstenbindbr, Barney v. 
 Burt, Mack v. 
 
 V. Saxton, 1 Hun, 551; p. 471 (mort.) 
 
 Burton, Durst v. 
 
 , Salt Springs National Bank v. 
 
 V. Stewart, 62 Barb. 194; p. 97 (bills 
 
 and notes). 
 Bush, Delemater v. 
 , First National Bank op Platts- 
 
 BURGH V. 
 
 w. Hicks, 60 N. Y. 298; pp. 387, in- 
 junction), 650 (reforming contract). 
 
 V. Knox, 2 Hun, 576 ; p. 353 (former 
 
 adjudication). 
 
 , Mohrmann v. 
 
 V. Rochester City Bank, 48 N. Y. 
 
 659 ; p. 40 (appeal). 
 
 ». Tread WELL, 11 Abb. N. S. 27; p. 
 
 17 (action). 
 
 BUSHNELL, LiVERMORE V. 
 
 , Palen v. 
 
 Bussing, Tugwell v. 
 
 BUSTEED, Bergh v. 
 
 BuTLEfe V. Evening Mail Association, 34 
 
 N. Y. Supr. 58; pp. 18 (action), 633 
 
 (principal and agent), 659 (sale). 
 
 , Jones v. 
 
 V. Kellogg, 4 Daly, 108; p. 172 (cont.) 
 
 , Kessel v. 
 
 , Perkins v. 
 
 V. Rochester City, 4 Hun, 321; p. 
 
 487 (municipal corporation). 
 
 V. Wehlb, 4 Hun, 54; p. 16 (action). 
 
 , Wehle v. 
 
 Butolph v. Blust, 41 How. 481 ; 5 Lans. 
 
 84; pp. 210 (crim'l. law), 698 (Syracuse). 
 
 BUTTERFIELD, CaMBLOS U. 
 
 , Dam^mann V. 
 
 0. Raddb, 38 N. Y. Supr. 1; p. 282 
 
 (evidence). 
 
 V. , 47 How. 535; 38 N. Y. Supr. 
 
 44; pp. 35 (appeal), 688 (statutes). 
 
 V. Rudde, 58 N. Y. 489; pp. 35 (ap- 
 peal), 144 (constitutional law). 
 
 Butter worth v. Crawford, 46 N. Y. 
 349; 3 Daly, 57; p. 263 (easement). 
 
 V. VoLKENiNG, 1 Hun, 717 ; p. 427 
 
 (landlord and tenant). 
 
 Button, Sheldon v. 
 
 Butts v. City of Rochester, 1 Hun, 598^ 
 
 p. 657 (Rochester). 
 Byington, Union Manufacturing Co. v. 
 Byrn v. Judi?, 11 Abb. N. S. 390; p. 436 
 
 (libel). 
 Byrne, Clancy v. 
 Byrnes v. City of Cohoes, 5 Hun, 602; pp. 
 
 55 (app.), 485 (mun. corp.), 731 (waiver). 
 
 c. 
 
 Cady, People ex rel. Ketbltas v. 
 
 Caen, Mosselman v. 
 
 Cagger v. Lansing, 48 N. Y. 550 ; revers- 
 ing 57 £ar6. 421;' pp ■■? 'r^z'J.oa), 361, 
 364 (frauds, statute of). 
 
 V. , 4 Hun, 812 ; p. 353 (former ad- 
 judication). 
 
 Cagnky, Chamboret v. 
 
 Cahill v. Palmer, 45 JV. Y. 478 ; pp. 30 
 (adv. pos3.), 284, 291 (evidence). 
 
TABLE OF- CASES. 
 
 779 
 
 Caldwell i. Commercial "Warehouse 
 Co., 1 Hun, 718; p. 622 (practice). 
 
 , Elsworth v. 
 
 — — , Jaycox v. 
 
 V. National Mohawk Valley Bank, 
 
 64 Barb. 333 ; pp. 83 (banks), 320 (evi- 
 dence), 592 (practice). 
 
 -, Nauman v. 
 
 u New Jersey Steamboat Co., 47 
 
 N. Y. 282 ; Affg. 36 Barb. 435 ; pp. 45 
 (appeal), 127 (carriers), 232 (damages), 
 585, 595 (practice). 
 
 Sanderson v. 
 
 Calhoun, Trustees Auburn Theologi- 
 cal Sem'y v. 
 
 CifLKiNS V. Smith, 48 N. Y. 614 ; pp. 23 (ac- 
 tion), 355 (fraud),'607 (practice). 
 
 Calligan v. New York Central and 
 Hud. Riv. R R.Co., 59 N. Y. 651 ; pp. 
 302 (evidence), 496 (negligence). 
 
 Camblos v. Butterpield, 15 Abb. N. S. 
 197 ; p. 19 (action), 40 (appeal), 607 
 (practice). 
 
 Cambrelling, Hope Fire Ins. Co. v. 
 
 Cambridge Valley Bank v. Delano, 48 
 N. Y. 326 ; pp. 103 (bona fide purchaser), 
 523 (notice). 
 
 Camden and Amboy R. E. Co., Edsall v. 
 
 , Lamb v. 
 
 Camden and Amboy R. R. & T. Co., Ma- 
 ghee V. 
 
 , Manhattan Oil Co. v. 
 
 Cameron, Matter op, 50 N. Y. 502 ; p. 
 516 (New York City). 
 
 , 5 Hun, 290 ; p. 638 (prohibition). 
 
 Cameron v. Durkheim, 55 N. Y. 425 ; pp. 
 Ill (broker), 311 (evidence). 
 
 , Jaycox v. 
 
 Camp v. Barney, 4 Hun, 373 ; p. 649 (re- 
 ceiver). 
 
 , Dibble v. 
 
 Campbell, Barnard v. 
 
 V. Birch, 60 N. Y. 214 ; pp. 44 (appeal), 
 
 134, 135 (chat, mortg.), 280 (estop.), 587 
 (practice). 
 
 , BiSSELL V. 
 
 V. Campbell, 65 Barb. 639; p. 167 
 
 (contract). 
 
 D. , 48 How. 255 ; p. 533 (partition). 
 
 V. Carter, 3 Daly, 165; p. 621 (pract.) 
 
 , CORWIN V. 
 
 V. Cothren, 56 N. Y. 279 ; Affg. 65 
 
 Barb. 534 ; pp. 79 (att'y.), 673 (sheriff). 
 
 V. Erving, 43 How. 258 ; p . 260 (dower). 
 
 V. Evans, 45 N. Y. 356 ; Affg. 54 
 
 Barb. 566. See Digest, vol. iv. 
 
 , Excelsior Savings Bank v. 
 
 , Hopheimer v. 
 
 V. HoGE, "2 Hun, 308 ; p. 572 (pract.) 
 
 t;. Kearney, 45 Sow. 87 ; pp. 56 (ap- 
 peal), 590 (practice). 
 
 , Knight v. 
 
 , Lormorb v. 
 
 , LUSK V. 
 
 V. Page, 50 N. Y. 658 ; p. 38 (appeal). 
 
 , Phillips v. 
 
 , SquariSs v. 
 
 V. Tate, 7 Lans. 370 ; pp. 255 (defense), 
 
 322 (evidence). 
 
 , Witty v. 
 
 Canaday, Simar v. 
 
 V. Stiger, 55 N. Y. 452; Affg. 35 
 
 N. Y. Supr. 423 ; p. 252 (defense), 727 
 
 (vend, and purchaser). 
 Canal Board op New York, People v. 
 
 , People ex rel. Seymour v. 
 
 , People ex rel. Sherrill v. 
 
 Canal Boat E. M'Chesney, Van Buren v. 
 Candee v. Burke, 1 Hun, 546 ; pp. 26 (action), 
 
 265 (ejectment), 279 (estoppel), 351 
 
 (former adjudication), 475 (mortgages). 
 
 , Burke v. 
 
 , Wetmore v. 
 
 Canpield v. Fairbanks, 63 Barb. 461 ; pp. 
 
 245 (deed), 271 (equity), 330 (evidence). 
 Canovan, Wormer v. 
 Canton, Tovrer op, Brown v. 
 Cantrbll, Taddiken v. 
 Capron, Joslyn v. 
 Capwell, O'Brien v. 
 Caraher, Finnegan v. 
 Card v. Miller, 1 Hun, 504; p. 95 (bills 
 
 and notes). 
 Cardozo, Merchants' Exchange Na- 
 tional Bank op Memphis v. 
 Carl v. Ayers, 53 N. Y. 14; p. 444 (mal. 
 
 pros.) 
 Carey u. Gnant, 59 Barb. 574, pp. 77 (atty), 
 
 609 (practice). 
 
 V. Carey, 4 Daly, 270; p. 62 (appeal). 
 
 Carlier, Billet v. 
 
 Carll, Ocean National Bank op N. Y. 
 
 City v. 
 
 V. Spofpord, 45 N. Y.-Ql ; p. 168 (cont.) 
 
 Carman v. Kelly, iHun, 283 ; pp. 75 (assign., 
 
 ben., etc.), 241 (damages), 299 (evidence), 
 
 539 (partn.) 
 Carnes v. Platt, 46 Sow. 520; 15 Abb. 
 
 N. S. 337; 36 N. Y. Supr. 361; pp. 58 
 
 (appeal), 351 (former adj.), 582 (pract.), 
 
 757 (witness). 
 „. , 59 N. Y. 405; Affg. 38 How. 
 
780 
 
 TABLE OF CASES. 
 
 100; 7 Abb. N. S. 
 p. 270 (equity). 
 
 42; 1 Sweeny, 140 
 
 86 
 
 Carow, In mattes of, 41 How. 112; p, 
 
 (bankruptcy). 
 V. Kelly, 59 Barb. 239; pp. 133 (chat. 
 
 mortg.), 725 (usury). ■ 
 Carpenter v. Beake, iHun, 509; pp. 50 
 
 (appeal), 212 (crim'l. law), 609 (pract.) 
 V. Blake, 60 Barb. 488; revd. 50 N. Y. 
 
 696; pp. 56 (appeal), 494 (negl.), 543 
 
 (phys. and surg.), 545 (plead'g.), 589 
 
 (pract.) 
 V. Central Park, N. & B. Riv. R. R. 
 
 Co., 11 Abb. JSr. S. 416; 4 Daly, 550; pp. 
 
 325 (evid.), 493 (negl.), 730 (waiver). 
 
 , Downer v. 
 
 V. Goodwin, 4c Daly, 89; p. 553 (pleadg). 
 
 V. Green, 4 Hun, 416 ; p. 65 (appeal). 
 
 V. Halsey, 60 Barb. 45; AfEd, 57 N. Y. 
 
 657; pp. 348 (fences), 713 (trespass). 
 V. Keating, IQ Abh. N. S. 223 ; pp. 390 
 
 (injunction), 622 (practice). 
 
 , Lanning v. 
 
 , Massachusetts Mut. Life Ins. Co. v. 
 
 , Richardson v. 
 
 , Russell & Erwin Manuf'g. Co. v. 
 
 , Schepp I'. 
 
 , Stillwbll u. 
 
 Carpentier v. Mintdrn, 6 Lans. 56; pp. 
 
 251, 255 (defense), 438 (lim. of action). 
 V. , 65 Barb. 293; pp. 13 (action), 
 
 418 (jurisdiction), 555 (pleading). 
 Caru v. Carr, 4 Lans. 314; afid. 52 N. Y. 
 
 251; pp. 265 (ejectment), 469 (mortgage), 
 
 598 (practice), 716 (trusts). 
 V. Great Western Ins. Co., 3 Daly, 
 
 160; p. 577 (practice). 
 V. New York Central & Hudson Riv. 
 
 R. R. Co., 60 iV'. Y. 633; p. 592 (pract.) 
 
 , QUINN V. 
 
 , Spencer v. 
 
 Carraher v. Carraher, 42 How. 458; 11 
 
 Abb. N. S. 338; 33 N. Y. Supr. 502 ; p. 
 
 60 (appeal). 
 Carrerb v. Spofford, 46 How. 294; 15 Abb. 
 
 N. S. 47; pp. 23 (actions), 538 (partn.) 
 Caerington v. Florida R. R. Co., 52 N.Y. 
 
 583; p. 37 (appeal). 
 Carroll v. Carroll, 60 N. Y. 121 ; Revg. 
 
 2 Hun, 609; pp. 287, 326 (evidence). 
 V. Charter Oak Ins. Co., 10^66. N.S. 
 
 166; pp. 322 (evidence), 401 (insurance), 
 
 733 (waiver), 757 (witness). 
 V. CouGHLiN, 3 Daly, 179 ; p. 461 (mechs. 
 
 lien). 
 V. Staten Island R. R. Co., 58 N. Y. 
 
 126 ; A%. 65 Barb. 32; pp. 127 (carrier), 
 419 jurisd.), 603 (prac), 693 (Sunday). 
 
 u. Weiler, 1 Hun, 605; p. 330 (evid.) 
 
 Carstens v. Barnstokf, 11 Abb. N. S. 442; 
 p. 77 (atty.) 
 
 Cartan v. Father Matthew U. Benevo- 
 lent Soc'y., 3 Daly, 20; p. 185 (corp.) 
 
 Carter, Campbell v. 
 
 V. Clark, 2 Sweeny, 189 ; pp. 202 
 
 (costs), 580 (practice). 
 
 , Tafft v. 
 
 Cartwkight v. Maplesden, 53 iV. Y. 622; 
 
 p. 263 (easement). 
 Carver v. Cheque, 48 N. Y. 385; afBrming 
 
 46 Barb. 507. See Digest, vols, i and iii. 
 Gary v. Gregory, 38 N. Y. Supr. 127, 566 ; 
 
 pp. 297 (evid.), 343 (exrs. and adm.) 
 V. Schoharie Valley Machine Co., 
 
 2 Hun, 110; pp. 188, 193 (corp.) 
 , West v. 
 
 V. White, 52 N. Y. 138^ reversing 7 
 
 Lans. 1; pp. 103 (b. f. purch.), 250 (deed). 
 
 V. , 59 iV. Y. 336; p. 756 (witness). 
 
 Caryl, Hudson v. 
 
 V, Williams, 7 Lans. 416 ; pp. 330 
 
 (evidence), 469, 477 (mortgage). 
 
 Case v. Northern Central Ry. Co., 59 
 
 Barb. 644 ; p. 297 (evidence). 
 Casey, In matter of, 5 Hun, 463; pp. 517, 
 
 518 (New York city). 
 Casoni v. Jerome, 58 N. Y. 315; pp. 171 
 
 (contract), 341 (exrs. and adm.), 354 
 
 (former adj.), 697 (surrogate). 
 Caspar v. O'Brien, 47 How. 80; 36 N. Y. 
 
 Supr. 574 ; 15 Abb. N. S. 402 ; p. 308 
 
 (evidence). 
 Casserly v. Manners, 48 How. 219; p. 395 
 
 (insurance co.) 
 Cassidy v. Begoden, 38 iV. Y. Supr. 181; 
 
 pp. 171 (contract), 321 (evidence). 
 
 u. City of Brooklyn, 10 .466. N. S. 
 
 297 ; 60 Barb. 105 ; affirmed 47 N. Y. 
 659; p. 113 (Brooklyn). 
 
 V. LeFbvrb, 45 N. Y. 562 ; reversing 
 
 57 Barb. 313; pp. 233 (damages), 650 
 
 (recoup.), 734 (waiver). 
 Cassity, People ex rel. Dunk, and Fred. 
 
 R. R. Co. v. 
 Caswell v. Davis, 58 N. Y. 223; pp. 43 
 
 (appeal), 711, 712 (trademark). 
 Catlin v. Catlin, 1 Hun, 322 ; p. 605 
 
 (practice). 
 V. , 2 Hun, 378; pp. 603 (practice), 
 
 731 (waiver). 
 
 V. Grissler, 57 N. Y. 363 ; pp. 40, 49 
 
 (appeal), 478 (mortgage.) 
 
TABLE OF CASES. 
 
 781 
 
 , Johnston v. 
 
 Cattaraugus County, In matter of 
 Freeholders oe, 59 N. Y. 316 ; p. 374 
 (highway). 
 Caughet v. Smith, 47 N. Y. 244; pp. 34 
 (appeal), 255 (defense), 314 (evidence), 
 454 (master and servant). 
 Cauldwbll, MorPATT V. 
 Caulkins i>. Hillman, 47 N. Y. 449; pp. 
 
 816 (evidence), 363 (frauds, stat. of). 
 Cavalli v. Allen, 57 N. Y. 508 ; pp. 267 
 
 (ejectment), 728 (vendor and purchr.) 
 Cavana, Cram w. 
 Cavanaugh, Burch v. 
 Gatlus v. New Tork, Kingston, etc. R. 
 
 R. Co., 49 How. 100; p. 357 (fraud). 
 Cayuga Co. National Bank v. Daniels, 
 
 m N. F. 631; p. 661 (sale). 
 Central Bank of Brooklyn v. Hammbtt, 
 
 50 N. Y. 158; pp. 99 (hills and notes), 
 
 284 (evidence). 
 Central Bank op Troy v. Heydorn, 48 
 
 N. Y. 260 ; pp. 285, 309 (evidence). 
 Central Bank op Westchester Co. v. 
 
 Alden, 41 How. 102 ; p. 575 (practice). 
 Central City Railway, Mowrey v. 
 Central Crosstown R. R. Co. v. Bleecker 
 
 St. and Fulton Ferry R. R. Co., 49 
 
 How. 283; p. 621 (practice.). 
 , Christopher and Tenth St. R. R. 
 
 Co. V. 
 Central Gold Mining Co. v. Platt, 8 
 
 Daly, 263; pp. 186 (corp.),391(injunct.) 
 Central National Bank of New York 
 
 V. Arthur, 2 Sweeny, 194; pp. 157 (con- 
 tempt), 577 (practice). 
 V. Clark, 34 N. Y. Supr. 487; pp. 51 
 
 (appeal), 572 (practice). 
 V. White, 37 N. Y. Supr. 297; p. 572 
 
 (practice). 
 Central Park Bank, Carpenter v. 
 Central Park, etc. R. R. Co., Adolph v. 
 
 , Maher V, 
 
 , Squire v. 
 
 . Ward v. 
 
 Central Presbyterian Church, Con- 
 gregation Beth. Elohim w. 
 Central Savings Institution m. Walker, 
 
 5 Hun, 34 ; pp. 190 (corporation), 534 
 
 (partnership).' 
 Cesar v. Karutz, 60 N. Y. 229 ; pp. 8 (ac- 
 tions), 483 (landlord and tenant). 
 Chapfee v. Morse, 2 Hun, 602 ; p. 56 (app.) 
 Chalmers, People v. 
 Chamberlain?;. Applegate, 2 Bun, 510; 
 
 p. 722 (undertaking). 
 
 V. Chamberlain, 43 N. Y. 424 ; pp. 
 
 261 (dower), 741, 742, 745 (wiU). 
 
 , Delcomyn v. 
 
 V. Lindsay, 1 Hun, 281 ; p. 505 (new 
 
 trial). 
 U.Parker, 45 N. Y. 569; pp. 206 
 
 (contract), 237 (damages). 
 
 , Pierce v. 
 
 , Stowell v. 
 
 V. Western Transp'n. Co., 44 N. Y. 
 
 • 305; pp. 126 (carrier), 689 (statutes). 
 Chambers v. Durand, 33 N. Y. Supr. 494 ; 
 
 p. 616 (practice). 
 
 , Thubber v. 
 
 Chamboret v. Cagney, 41 How. 125 ; 10 
 
 Abb. N. ,S. 81; 2 Sweeny, 878; p. 555 
 
 (pleading). 
 Chambo VET u. Cagney, 35 iV. Y. .Supr. 474; 
 
 pp. 326, 329 (evidence), 877 (husband 
 
 and wife), 580 (practice). 
 Champion v. Joslyn, 44 N. Y. 658 ; pp. 
 
 308, 811 (evidence), 706 (tender). 
 Champlain, Bell v. 
 Champlain Trans. Co., Dougan v. 
 Champlin v. Railway Pass. Assurance 
 
 Co., 6 Lans. 71; pp. 254 (def.), 409 (ins.) 
 
 , Whedon v. 
 
 Chandler v. Hoag, 2 7f«n,613; p. 191(corp.) 
 
 Chantry, Jones v. 
 
 Chapin v. Sollister, 7 Lans. 456 ; pp. 302, 
 
 308 (evidence). 
 
 , Hunt v. 
 
 , Platt v. 
 
 V. ScHAPEB, 49 N. Y. 407 ; p. 383 (inf 'nt.) 
 
 V. Thompson, 4 Hun, 779 ; p. 107 (b'ds. ) 
 
 Chaplin v. Wilkinson, 63 Barb. 46 ; pp. 279 
 
 (estoppel), 440 (lim. of action). 
 Chapman v. Douglass, 15 Abb. N. S. 421 ; 
 
 pp. 334 (evid.), 635 (p'ncipal and surety.) 
 U.Erie Railway Co., 55 iV. F. 579; 
 
 pp. 332 (evid;) , 456 (master and servant), 
 
 594, 596 (practice). 
 V. Gates, 54 N. Y. 182 ; pp. 41 (ap- 
 peal), 150 (constitutional law), 275 (es- 
 toppel), 878 (highway). 
 
 , Hunt v. 
 
 V. McKay, 47 N. Y. 670; p. 9 (action). 
 
 V. O'Brien, 34 N. Y. Supr. 525 ; pp. 
 
 104 {bona Jide purch.), 278 (estoppel), 
 
 805 (evidence). 
 V. , 39 N. Y. Supr. 244; pp. 827 
 
 (evidence), 505 (new trial), 589 (pract.) 
 
 , People ex rel. Stout v. 
 
 V. Rose, 44 How. 364 ; p. 100 (bills 
 
 and notes). 
 V. ,47 How. 18; 56 N. Y. 137; 
 
782 
 
 TABLE OF CASES. 
 
 rev'g, 44 Bow- 364; p. 100 (bills and 
 notes). 
 
 , RUGGLES V. 
 
 V. Swan, 65 Barh. 210; pp. 371, 372 
 
 (highway), 423 (just, court). 
 
 , Taft v. 
 
 V. Utica and Black Riv. R. R. Co., 
 
 4 Lans. 96; p. 645 (R. R. Co.) 
 Chaelick, Sheridan v. 
 Charlotte, Col. and Aug. R. R. Co. v. 
 
 Jbsdp, 44 How. 447; pp. 665 (sale), 730 
 (waiver). 
 Charter Oak Fire Ins. Co., Carroll v. 
 Chase u. Bassbtt, 15 Ahh. N. S. 293; p. 
 
 505 (new trial). 
 
 , Begley v. 
 
 , Moran v. 
 
 , Pratt v. 
 
 V. Vanderbilt, 37 iV. Y. Supr. 334; 
 
 pp. 186, 188 (eorpo'tion), 272 (equity), 
 
 420 (jurisdiction). 
 
 , Wise v. 
 
 Chatham Nat. Bank oe N. Y. v. Mer- 
 chants' Nat. Bank op W. Virglnia, 1 
 
 Hun, 702 ; p. 654 (removal to U. S. court). 
 Cheever v. Saratoga Co. Bank, 47 Hoiv. 
 
 876; p. 754 (witness). 
 Chemical National Bank, Frank «. 
 Chemung Canal Bank v. Bradner, 44 N. 
 
 Y. 680; pp. 98 (biUs and notes), 536, 
 
 538 (partnersMp). 
 Chenango Bridge Compant w. Lewis, 63 
 
 Barb. Ill; pp. 291 (evid.), 523 (nuis.) 
 Cheney, Schonberg v. 
 V. Woodruff, 45 N. Y. 98 ; pp. 417 
 
 (jud. sales), 430 (landlord and tenant). 
 Cherry, Brown v. 
 Chesebrough, Place v. 
 V. Tompkins, 10 Abb. N. S. 379; 45 N. 
 
 Y. 289 ; p. 47 (appeal). 
 V. Weight, 51 N. Y. 662; pp. 92, 99 
 
 (bills and notes). 
 Cheshire, Lamont v. 
 Chester v. Dickinson, 45 How. 326 ; 54 N. 
 
 Y. 1; pp. 304 (evid.), 360 (frauds, stat. 
 
 of), 534, 536 (partn.), 582 (practice). 
 
 , Perry v: 
 
 Chicago & Great East. Railway Co., 
 
 Brignoli v. 
 V. Dane, 43 N. Y. 240; pp. 161, 162 
 
 (contract). 
 Chicago &-Lake H. R. R. Co., Barnett v. 
 Chicago & Northern Pac. Construction 
 
 Co., Coffin v. 
 Childs v. Connor, 48 Row. 513; 38 N. Y. 
 
 Supr. 471; p. 358 (fraud, oonv.) 
 
 V. Smith, 46 N. Y. 34; reversing 38 
 
 How. 328; 55 SarJ. 45; p. 5 (action). 
 
 Chipman u. Montgomery, 4 Hun, 739; p. 
 753 (will). 
 
 Chippu, Ocean House Corporations. 
 
 Chisholm v. Northern Trans. Co. of 
 Ohio, 61 Barb. 363; pp. 420, 421 (juris- 
 diction), 674 (ships, etc.) 
 
 Chism v. Keith, 1 Hun, 589; pp. 530 (parti- 
 tion), 752 (will). 
 
 Christal, Struthees v. 
 
 Christie v. Bergh, 15 Abb. N. S. 51; pp. 
 12 (act'n.), 33 (animals), 388 (injunct'n.) 
 
 V. Gage, 5 Lans. 189 ; p. 752 (will). 
 
 , NOE V. 
 
 Christopher, People v. 
 
 , Smith v. 
 
 Christopher and Tenth St. R. R. Co. v. 
 
 Central Crosstown R. R. Co., i Hun, 
 
 630; p. 390 (injunction). 
 Christy v. Kiersted, 47 How. 467; p. 625 
 
 (practice). 
 V. Newton, 60 Barb. 332 ; p. 87^3 (high- 
 way). 
 Chrysler v. Renois, 43 iV. F. 209; pp. 92, 
 
 98 (biUs & notes), 233 (dam'gs.) 300 (evd.) 
 Church, Downer v. 
 V. KiDD, 3 Hun, 254 ; pp. 61 (appeal) , 199 
 
 (costs), 322 (evidence), 506 (new trial), 
 
 715, 719 (trust), 756 (witness). 
 
 V. Miller, 46 How. 525; p. 68 (app'l.) 
 
 , Miller v. 
 
 — — , Murray v. 
 
 , Smith v. 
 
 , Tyler v. 
 
 , Watson v. 
 
 Churchill, Despard v. 
 
 Churchill v. Onderdonk, 59 iV. Y. 134; p. 
 
 257 (determ. of claims). 
 Church of Redeemer v. Crawford, 43 
 
 N. Y. 476; reversing 36 N. Y. Supr. 
 
 307 ; 5 Rob. 100 ; p. 651 (relig. corp.) 
 V. , 14 Abb. N. S. 200; pp. 336 
 
 (execution), 544 (pleading). 
 Citizen's GAs Light Co., Copeland v. 
 City Bank, Davison v. 
 
 — V. Rome, Wat. and Ogd. R. R. Co., 44 
 N. Y. 136; pp. 82 (bailment), 102 (b. f. 
 purch'r.), 629 (prin. andagt.), 661 (sale). 
 
 Claflin v. Ball, 43 N. Y. 481 ; p. 167 
 (contract). 
 
 — , COCKROPT V. 
 
 V. Lenhbim, 5 Hun, 269; p. 628 (prin- 
 cipal and agent). 
 
 — V. Jaroslauski, 64 Barb. 463 ; p. 558 
 pleading). 
 
TABLE OF CASES. 
 
 783 
 
 V. OsTROM, 54 N. Y. 581 ; pp. 72 (assig.), 
 
 367 (guar.), 540 (paym. ), 611 (praot.) 
 
 Claghoen, Meeker v. 
 
 Clancy v. Byrne, 56 N. Y. 129 ; reversing 
 65 Barb. 344; pp. 438 (landlord and 
 tenant), 490 (negligence). 
 
 , HOLDEN V. 
 
 V. Onondaga Fine Salt. Manup'g. 
 
 Co., 62 Barb. 395, pp. 178 (contract), 
 
 184 (corporation). 
 
 , Sheldon v. 
 
 Clanson, Hale v. 
 
 Clapp !). Devlin, 35 iV. Y. Supr. 170; pp. 
 
 589 (practice), 676 (slander). 
 V. ScHUTT, 44 N. Y. 104; affirming 44 
 
 Barb. 9; 19 Abb. 121. See Digest, vols. 
 
 i. and ii. 
 Clare v. National City Bank, 14 Abb. 
 
 N. S. 326; 35 N. Y. Supr. 261; p. 568 
 
 (pleading). 
 Clark, In Matter op, 48 How. 70; p. 90 
 
 (bankruptcy). 
 Clark, Allen v. 
 
 , Barker v. 
 
 , Bininger v. 
 
 , Carter v. 
 
 , Central National Bank v. 
 
 V. Clark, 47 N. Y. 664; p. 289 (evid.) 
 
 V. , 5 Hun, 340; p. 556 (pleading). 
 
 V. Coles, iSHow. 266; pp. 391 (injunc- 
 tion), 746 (will). 
 
 , Cook v. 
 
 V. Cottrell, 63 Barb. 335; p. 249 
 
 (deed). 
 V. Crego, 51 N. Y. 646; affirming 47 
 
 Barb. 599. See Digest, vols, i., ii. and iii. 
 
 , Deyeemtjnd v. 
 
 U.Donaldson, 49 How. 63; 3 Hun, 
 
 224; pp. 55, 61 (appeal). 
 
 , Fish v. 
 
 V. Flint & Pere M. E. Co., 5 Hun, 556; 
 
 p. 720 (trust). 
 
 , Fox V. 
 
 , Garlock v. 
 
 J). Halstead, 56 N. Y. 662; p. 301 
 
 (evidence). 
 V. Hampton, 1 Hun, 612; pp. 303 
 
 (evidence), 367 (guaranty). 
 
 , Harrison v. 
 
 , Lancet v. 
 
 , Latourette v. 
 
 u. Lynch, 4 Daly, 83; pp. 661, 664 
 
 (sale). 
 
 , McGrath v. 
 
 V. Metcalp, 54 iV. Y. 688 ; p. 97 (bills 
 
 and notes). 
 
 , Meyer v. 
 
 U.Miller, 54 N. Y. 528; pp. 240 
 
 (damgs.), 448 (manda.), 527 (office, etc.) 
 
 , Miller v. 
 
 , Murray v. 
 
 V. ISew York Lipb Ins. and Trust 
 
 Co., 7 Lans. 322; pp. 165 (contract), 816 
 
 (evidence). 
 V. Norton, 49 N. Y. 243; AfE'g 8 Lans. 
 
 484; 59 Barb. 16&. See Digest, vol. iv. 
 
 , Penpield v. 
 
 , People v. 
 
 , Phillips v. 
 
 , Pond v. 
 
 V. Shuman, 2 Hun, 155; p. 503 (new 
 
 trial). 
 
 , Sternpelb v. 
 
 , Thompson v. 
 
 , Tiffany v. 
 
 V. Warren, 7 Lans. 180; pp. 887 (exe.) 
 
 619 (practice). 
 V. Wellington, 5 Hun, 638; p. 422 
 
 (just, court). 
 , Wheeler v. 
 
 -^ — , WiNSLOW V. 
 
 u. Wise, 46 N. Y. 612; Kev'g 57 Barb. 
 
 416; 39 How. 97; pp. 283 (evidence), 
 359 (fraud, conv.), 691 (subm.,of cont.) 
 
 Clarke v. Blackmar, 47 N. Y. 150 ; p. 484 
 (municipal corporation). 
 
 V. Goodridge, 44 How. 226 ; 41 N. Y. 
 
 210 ; p. 619 (pract.) See Digest, vol. iv. 
 
 V. Kannie, 6 Lans. 210 ; p. 429 (land- 
 lord and tenant). 
 
 V. Sheehan, 47 N. Y. 188; p. 728 
 
 (usury). 
 
 Clarke National Bank, Rochester and 
 Gen. Val. R. R. Co. f. 
 
 Clarkson v. Skidmorb, 46 N. Y. 297 ; Rev'g 
 2 Lans. 238 ; pp. 47 (appeal), 438 (land- 
 lord and tenant), 480 (mortgage). 
 
 Classen v. Leopold, 2 Sweeny, 705; pp. 393 
 (innkeeper), 649 (recoupment). 
 
 Claybs v. Hooker, 4 Hun, 281; pp. 566 
 (pleading), 724 (usury). 
 
 Clearkin, O'Garau. 
 
 Clearwater v. Brill, 4 Hun, 728; pp. 884 
 (evid.) 887, 388 (execution). 
 
 Cleghorn v. New York Cent. & Hud. 
 Riv. R. R. Co., 56 N. Y. 44 ; pp. 232 
 (damages), 882 (evidence), 457 (master 
 and servant). 
 
 Clemence v. City op Auburn, 4 Hun, 386 
 p. 486 (municipal corporation). 
 
 Clemens v. Clemens, 60 Barb. 366 ; pp. 531 
 (partition), 717 (trust), 743 (will). 
 
784 
 
 TABLE OF CASES. 
 
 Clemons v. Davis, 4 Hun, 260; p. 565 
 
 (pleading). 
 Cleveland v. Barrows, 59 Barb. 364 ; p. 
 547 (pleading). 
 
 , Hicks v. 
 
 V. New Jersey Steamboat Co., 5 Hun, 
 
 523; pp. 127 (carrier), 315, 324, 325 
 
 (evidence), 493 (negligence). 
 Clews v. Kockfokd, RockIsl., etc. R. R. 
 
 Co., 2 Hun, 379; p. 618 (practice). 
 
 V. , 49 How. 117; p. 569 (practice). 
 
 Clifford, Brown v. 
 
 Clift u. Northrop, 6 Lans. 330; p. 553 
 
 (pleading). 
 Clifton, In matter of, 47 How. 172 ; p. 
 
 383 (infant). 
 Clinch v. South Side R. R. Co. of Long 
 
 Island, 1 Hun, 636 ; pp. 194 (corporar 
 
 tiou), 647 (receiver). 
 
 V. , 2 Hun, 154; p. 51 (appeal). 
 
 Clinton v. Hope Ins. Co., 45 N. Y. iSi; 
 
 affg. 51 Barb. 647. See Digest, vol. iv. 
 
 , Leftwioh v. 
 
 V. Myers, 46 N. Y. 511; pp. 388 (inj.), 
 
 736 (watercourse). 
 
 V. , 43 How. 95; p. 575 (practice) 
 
 V. TowNSEND, 46 How. 42 ; p. 241 
 
 (damages). 
 
 - — , West New York Life Ins. Co. v. 
 
 Cloonan, Simmons v. 
 
 Clothier v. Adriance, 51 N. Y. 322 ; pp. 
 93, 98 (bills and notes). 
 
 Clow v. VanLoan, 4 Hun, 184; pp. 19 (ac- 
 tions), 152 (const'l law), 423 (just, ct.), 
 721 (turnpike). 
 
 Clukby, Pelo v. 
 
 Clutb, Losbe v. 
 
 V. Newkirk, 46 N. Y. 684; p. 358 
 
 (fraudt. oonv. ) 
 
 , People ex rel. Albany v. 
 
 , People ex rel. Furmajt v. 
 
 Clutterbuck, Wheeler v. 
 
 CoATES V. GoDDAED, 34 N. Y. Supr. 118; 
 
 pp. 202 (costs), 574 (practice). 
 
 , Miller v. 
 
 Cobb v.. Hatfield, 46 N. Y. 533; p. 175 
 
 (contract). 
 Cochran, Browne v. 
 
 V. DiNSMORE, 49 N. Y. 249; pp. 298 
 
 (evidence), 488 (negligence), 597 (praot.) 
 
 , Ripley v. 
 
 , Welsh v. 
 
 Cochrane, Jeffrbs v. 
 
 Cocksy v. Hurd, 43 How. 140 ; 12 Abb. N. S. 
 
 307; reversed, 45 How. 70 ; 14 Abb. N. S. 
 
 183; 36 N. Y. Supr. 42; p. 626 (pract.) 
 
 Cockle, Hammond v. 
 CocKCROFT.u. Claflin, 64 Barb. 464; p. 
 620 (practice). 
 
 , Geery v. 
 
 , Halstead v. 
 
 , VOSE V. 
 
 Cocks v. Barker, 49 N. Y. 107; pp. 818, 
 321 (evidence). 
 
 , Barker v. ' 
 
 Coddington v. Dunham, 45 How. 40; 35 
 
 JV. Y. Supr. 412; pp. 204 (counterclaim), 
 
 427 (land, and tenant). 
 Codding v. Wamsley, 1 Hun, 585; afi'd, 
 
 60 N. Y. 644; pp. 679 (spec, perf.), 727 
 
 (vendor and purchr.), 733 (waiver). 
 CoE, Foster v. 
 
 , Kilburn v. 
 
 , Matthews v. 
 
 , Smith v. 
 
 Coffey v. Home Life Ins. Co., 44 How. 
 
 481; 35 N. Y. Supr. 314; p. 285 (evid.) 
 Coffin v. Chicago and Northern Pacific 
 
 Construction Co., 4 Hun, 625; pp. 
 
 420 (jurisd.), 567 (pledge). 
 
 0. Coke, 4 Hun, 616; p. 203 (costs). 
 
 V. , 3 Hun, 396; p. 109 (broker). 
 
 — ~ V. New York Central R. R. Co., 64 
 
 Barb. 379; p. 120 (carrier). 
 CoGAN V. Mayor, etc. New York, 5 Hun, 
 
 291; p. 510 (New York city). 
 Cogsdill v. Brown, 5 Hun, 341; p. 337 
 
 (execution). 
 Cohen v. Kelly, 35 N. Y. Supr. 42; p. 
 
 504 (new trial). 
 V. New York Mutual Life Ins. Co., 
 
 50 N. Y. 610; pp. 9 (action), 406 (ins.), 
 
 735 (war). 
 CoHOEs, City of, Byrnes v. 
 V. Cropsey, 55 N. Y. 685 ; p. 282 (evi- 
 dence). 
 CoHOES Savings Institution, Vandbr- 
 
 COOK V. 
 
 CoiT V. Braunsdorp, 2 Sweeny, 74; p. 429 
 (land, and tenant). 
 
 , COWDERY V. 
 
 u. Planer, 51 N. Y. 647; affirming 7 
 
 Bob. 413 ; 4 ^ J6. N. S. 140. See Digest^ 
 
 vol. iv. 
 u. Stewart, 12 Abb. N. S. 216 ; p. 553 
 
 (pleading). 
 V , 50 JV. Y. 17; pp. 16 (action), 37 
 
 (appeals). 
 Coke, Coffin v. 
 Colah, In Matter of, 3 Daly, 529 ; p. 382 
 
 (idiots, etc.) 
 Colby, Kllnk v. 
 
TABLE OF CASES. 
 
 785 
 
 , Ross V. 
 
 Cole v. Denub, 3 Hun, 610 ; p. 756 (wit- 
 ness). 
 
 V. Hughes, 54 N. F. 444 ; p. 208 (oovt.) 
 
 V. NiLES, 3 Hun, 826 ; p. 746 (will). 
 
 , People v. 
 
 , Pope v. 
 
 V. Van Kburen, 4 Hun, 262 ; p. 372 
 
 (highways). 
 
 Coleman, Develin v. 
 
 V. Dixon, 60 JST. Y. 572 ; p. 38 (app.) 
 
 V. Eyre, 45 iV. Y. 38 ; Rev'g 1 Swee- 
 ny, 476; pp. 6 (action), 362 (frauds, 
 stat. of). 
 
 V. First National Bank of Elmira, 
 
 53 N. Y. 388 ; pp. 318 (evidence), 629 
 (principal and agent). 
 
 V. Lansing, 4 Lans. 70 ; pp. 99 (bills 
 
 and notes), 271 (equity). 
 
 V. 65 Barb. 54; pp. 11 (action), 
 
 542 (payment). 
 
 V. Livingstone, 45 How. 483 ; pp. 296 
 
 (evidence), 579 (practice). 
 
 V. , 36 N. Y. Supr. 32; pp. 284 (ev- 
 idence), 735 (warehouse). 
 
 V. People, 55 N. Y. 81 ; pp. 218, 223, 
 
 230 (criminal law). 
 
 V. , 58 N. Y. 555 ; Aff'g 1 Hun, 596 ; 
 
 pp. 218, 228 (criminal law). 
 
 V. Van Rensselaer, 44 How. 868 ; pp. 
 
 470, 473 (mortgage). 
 
 Coles, Clark v. 
 
 Colfax, White v. 
 
 Colgate, Indiana National Bank *. 
 
 , Speter v. 
 
 Colgeove v. Tallman, 5 Hun, 103 ; p. 637 
 (prin. and surety). 
 
 , Trustees Fund for Episcopate of 
 
 Diocese op New York v. 
 
 CoLiE V. Jamison, 4 Hun, 284 ; pp. 87 
 (bankruptcy), 264 (easement). 
 
 V. Tifft, 47 N. Y. 119 ; p. 38 (appeal). 
 
 Colin, Gunther v. 
 
 College Point, Trus. of, v. Dennett, 2 
 Hun, 669 ; p. 810 (evidence). 
 
 CoLLENDER V. DiNSMORB, 64 Barb. 457 ; re- 
 versed, 55 N. Y. 200 ; p. 119 (carrier), 
 319 (evidence). 
 
 Collie, Bordwell v. 
 
 CoLLiGAN V. Scott, 58 JV. Y. 670 ; p. 41 
 (appeals), 632 (prin. and agent). 
 
 Collins, Bank of California v. 
 
 V. Bennett, 46 N. Y. 490 ; p. 81 (bail- 
 ment), 298 (evidence), 352 (former adj.) 
 
 V. Burns, 36 iV. Y. Supr. 518 ; p. 120 
 
 (carrier). 
 
 50 
 
 V. Collins, 56 N. Y. 668 ; afi'g 6 Lans. 
 
 368 ; p. 272 (equity). 
 
 , Forehand v. 
 
 V. Hall, 50 N. Y. 687 ; pp. 18 (action), 
 
 41 (appeal), 303 (evidence). 
 V. Hasbrouck, 56 N. Y. 157 ; pp. 427, 
 
 428 (landlord and tenant). 
 V. Mayor, &c. of New York, 3 Hun, 
 
 680 ; pp. 507 (N. Y. City), 525 office). 
 V. New York Cent, and Hud. Riv. R. 
 
 R. Co., 5 Hun, 499, 503; pp. 308 (evid.), 
 
 493, "495, 499 (neg.), 591 (practice). 
 ti. People, 1 Hun, 610 ; p. 217 (crim. 
 
 law). 
 
 , Rbqua v. 
 
 , Syracuse, Bing. & New York R. R. 
 
 Co. u. 
 CoLLSON, Edwards v. 
 CoLMAN V. Shattuck, 2 Hun, 497 ; pp. 701> 
 
 702, 704 (taxes). 
 Color Printing Attachment Co. v. 
 
 Brown, 87 N. Y. Supr. 488; pp. 55 (ap- 
 peal), 295, 810 (evid. J 508 (new trial). 
 COLSON V. Arnot, 57 N. Y. 253 ; p. 100 
 
 (bills and notes). 
 Colt v. Phienix Fire Ins. Co ., 54 N. Y. 595 ; 
 
 p. 897 (insurance). 
 i>. Sixth Ave. R. R. Co., 38 N. Y. Supr. 
 
 189; AfE'd, 49 N.Y. 671 ; pp. 56 (appeal), 
 
 495 (negligence), 580 (practice). 
 Columbian Ins. Co., Evans v. 
 
 , Snow v. 
 
 , Wallebstein v. 
 
 Col vert v. Hall, 48 How. 80; pp. 67 (app'l.) 
 
 CoLWELL, Crocker v. 
 
 Coman, People v. 
 
 Combs, Ross v. 
 
 CoMEAU V. Guild Farm Oil Co., 3 Daly, 
 
 218; p. 690 (stocks). 
 Commerce Fire Ins. Co. , Reynolds v. 
 
 , Tatham v. 
 
 Commercial Bank of Albany v. Ten 
 
 Eyck, 48 N. Y. 805 ; pp. 82, 85 (banks). 
 Commercial Bank of Kentucky v. Var- 
 
 NUM, 49 N. Y. 269 ; reversing 3 Lans. 
 
 86; pp. 95, 96 (bills and notes), 324 
 
 (evidence), 528 (notary). 
 Commercial Bank op Whitehall, Dil- 
 
 LAYE V. 
 
 Commercial Fire Ins. Co., O'Brien v. 
 
 Commercial Mut. Life Ins. Co. , Gobtz- 
 man v. 
 
 Commercial Warehouse Co., Cald- 
 well ii. 
 
 V. Graber, 45 N. Y. 393; affirming 2 
 
 Sweeny, 638; p. 625 (practice). 
 
786 
 
 TABLE OF OASES. 
 
 , Merchants' Exchange National 
 
 Bank v. 
 
 , Ttng v. 
 
 Commissioners oe Central Park, In 
 
 MATTER OF, 41 How. 12 ; 60 Bari. 132 ; 
 
 p. 517 (New York city). 
 
 ,4:Lans. 467, 61 Barb. 40; p. 53 (app'l.) 
 
 , 50 JSr. Y. 493 ; pp. 36, 42 (appeal), 684 
 
 (statutes). 
 , 63 Barb. 282 ; pp. 151 (constitutional 
 
 law), 515 (New York city). 
 Commissioners of Highways, People ex 
 
 rel. Cook v. 
 
 , People ex rel. Purdy v. 
 
 Commissioners of Pilots v. Pacific Mail 
 
 S. S. Co., 52 N. Y. 609; p. 543 (pilots). 
 Commissioners of Taxes of New York, 
 
 People ex rel. Broadway and Sev- 
 enth Avenue E. R. Co. v. 
 
 , People ex rel. Da vies v. 
 
 , People ex rel. Pac. Mail S. S. Co. v. 
 
 , People ex rel. Trowbridge v. 
 
 Commissioners Washington Park, In 
 
 matter of, 56 N. Y. 144; pp. 32 
 
 (Albany), 269 (eminent domain). 
 , 52 N. Y. 131 ; reversing 15 Abb. N. S. 
 
 148 ; pp. 31, 32 (Albany), 269 (eminent 
 
 domain), 684 (statutes). 
 Common Council of Brooklyn, People 
 
 ex rel. Pratt v. 
 Common Council of Rochester, People 
 
 ex rel. Butts v. 
 
 , People ex rel. Curtis v. 
 
 , People ex rel. Locke v. 
 
 Common Council of Utica, People ex rel. 
 
 Curtis v. 
 Commonwealth Bank of Philadelphia 
 
 V. Pryor, 11 Abb. N. 8. 227; p. 558 
 
 (pleading). 
 CoMPAGNiB Gen. Trans. Atlantique, 
 
 Donovan v. 
 CoMPTON V. Shaw, 1 Hun, 441; pp. 182 
 
 (conversion), 735 (warehouse). 
 CoMSTOCK V. Dodge, 43 How. 97 ; pp. 1 
 
 (abate, and rev.), 71 (assault and bat.), 
 
 255 (defense), 592 (practice). 
 V. Johnson, 46 N. Y. 615; pp. 244 
 
 (deed), 270 (equity). 
 , Merchants' National Bank of 
 
 Syracuse b. 
 
 , Parks v. 
 
 conant, osby v. 
 
 CoNDE, Fuller v. 
 
 CoNDicT V. Grand Trunk Railway Co., 4 
 
 Lans. 106; p. 117 (carrier). 
 „. , 54 N. Y. 500; p. 117 (carrier). 
 
 Cone v. Niagara Fire Ins. Co., 60 N. Y. 
 619; pp. 20 (action), 396, 401, 404 (ins.) 
 
 , PURCELL V. 
 
 u. PuRCELL, 56 N. Y. 649; pp. 287 
 
 (evidence), 581 (practice). 
 Conger, Foster v. 
 
 , Knapp v. 
 
 , Torrance v. 
 
 Congregation Beth. Elohim v. Central 
 
 Press. Church, 10 Abb. N. S. 484 ; pp. 
 
 187 (corp.), 237 (dam.), 652 (relig. corp.) 
 Congregation B'nai Jeshukan, Solo- 
 mon V. 
 Congregation Shaab Hash Moin v. 
 
 Halladay, son. Y. 664; p. 728 (vend. 
 
 and purchaser). 
 Congress & Emp. Spring Co. v. High Rock 
 
 Cong. Spring Co., 10 Abb. N. S. 348 ; 
 
 45 iV. Y. 291; revg. 57 Barb. 526; p. 
 
 712 (trade-mark). 
 Congress & Empire Spring Co., Knowl- 
 
 TON V. 
 
 Conhocton Stone Road Co. v. Buffalo, 
 
 N. Y. & Erie R. R. Co., 51 N. Y. 573; 
 
 revg. 52 Barb. 390; p. 525 (nuisance). 
 V. , 3 Hun, 523; pp. 5 (action), 311, 
 
 325 (evid.), 566 (pleading), 736 (waterc.) 
 Conhyser, Abbel v. 
 CoNKHN V. FuRMAN, 48 N. Y, 527; a%. 57 
 
 Barb. 484 ; 8 Abb. N. S. 161. See Di- 
 gest, vol. iv. 
 
 , People, ex rel. Floyd v. 
 
 , Phillips v. 
 
 V. Phcenix Mills op Seneca Palls, 
 
 62 Barb. 299; pp.9 (action), 523 (nuis.) 
 V. Second Nation'l Bank of Oswego, 
 
 45 N. Y. 655; afEg. 53 Barb. 512; p. 85 
 
 (banks). 
 
 , Tremper v. 
 
 Connecticut Mut. Life Ins. Co., "Welts v. 
 Conningham, D. Dock E. B. & R. R. Co. v. 
 Connitt v. Ref. Prot. Dutch Church of 
 
 New Prospect, 4 Lans. 339 ; affd. 54 
 
 N. Y. 551; pp. 353 (former adj.), 651 
 
 (relig. Corp.), 730 (waiver). 
 Connolly v. Hamill, 3 Hun, 399; p. 586 
 
 (practice). 
 Connor, Childs v. 
 
 , Lord v. 
 
 Connors v. People, 50 N. Y. 240; pp. 226 
 
 (crim. law), 757 (witness). 
 Conor v. Dempsey, 49 N. Y. 665; p. 665 
 
 (sale): 
 CoNROY, Du Fort v. 
 V. Gale, 5 Lans. 344 ; pp. 114 (canals), 
 
 409 (negligence). 
 
TABLE OF CASES. 
 
 787 
 
 , Powers v. 
 
 Constant v. Rector, Wardens, etc. op St. 
 
 Albans Church, 4 Daly, 305 ; p. 651 
 
 (relig. corporation). 
 Continental Bank Note Co. o. Indus- 
 trial Exhibition Co., 1 Hun, 118 ; p. 
 
 601 (practice). 
 Continental Ins. Co., Minzesheimeb v. 
 
 , Phcenix Ins. Co. v. 
 
 , Walters v. 
 
 Continental National Bank v. Adams, 
 
 4 Hun, 666 ; p. 505 (new trial). 
 V. Nati'al Bank of Commonwealth, 
 
 50 N. Y. 575; pp. 277 (estop.), 595' 
 
 (practice). 
 Conway, Gould v. 
 
 , KiDD V. 
 
 , Scott v. 
 
 Conway v. Mayor, etc. op New York, 4 
 
 Hun, 43 ; p. 517 (New York city). 
 V. Williams, 2 Hun, 642 ; p. 282 
 
 (evidence). 
 Cook v. Allen, 5 Hun, 561 ; pp. 506 (new 
 
 tiial), 586 (practice). 
 
 V. Banker, 50 N. Y. 655; p. 437 (lien). 
 
 *. Barr, 44 N. Y. 156 ; pp. 311, 334 
 
 (evidence), 360 (frauds, stat. of). 
 
 , Bennett v. 
 
 V. Clark, 3 Hun, 247 ; p. 107 (bond). 
 
 u.DooLiTTLE, 5 Hun, 342; p. 727 (vendor 
 
 and purchaser). 
 V. Gregg, 46 N. Y. 439 ; p. 152 (consti- 
 
 tional law). 
 
 V. Holt, 48 N. Y. 275 ; p. 82 (bailm't.) 
 
 V. Kraft, 41 How. 279 ; 3 Lans. 512 ; 
 
 60 Barb. 409 ; p. 608 (practice). 
 V. Kroemeke, 4 Daly, 268 ; p. 109 
 
 (broker). 
 V. McClure, 58 iV. Y. 437; p. 246 
 
 (deed). 
 V. New York Central R. R. Co. , 5 
 
 Lans. 401 ; pp. 61 (appeal), 494 (negl.) 
 V. Phillips, 56 N. Y. 310; p. 109 
 
 (broker). 
 V. SouLE, 56 N. Y. 420 ; affirming 45 
 
 Ho^D. 340 ; pp. 204 (counterclaim), 237 
 
 (damages), 303 (evid.), 431 (land. &ten.) 
 V. Spaulding, 52 N. Y. 661 ; p. 584 
 
 (practice). 
 . 17. Starkweather, 13 Abb. N. S. 392 ; 
 
 p. 711 (trade-mark). 
 
 , Vincett v. 
 
 , Walch v. 
 
 , V. Wardens op St. Paul's Church, 
 
 5 Hun, 293; pp. 249 (deed), 265 (eject- 
 ment). 
 
 V. Whipple, 55 N. Y. 150; pp.' 33 
 
 lamendm't.), 419, 421 (juris.), 607 pr.) 
 
 Cooke v. Davis, 53 N. Y. 318; p. 165 (cont.) 
 
 V. Millard, 5 Lans. 243 ; p. 660 (sale). 
 
 V. State National Bank of Boston, 
 
 52 N. Y. 96; pp. 83 (banks), 419 (juris- 
 diction), 653, 654 (removal to U.S. Ct.) 
 
 Cooley v. Decker, 47 How. 188; p. 604 
 (practice). 
 
 , Guilford, Town op, v. 
 
 V. Howe Machine Co., 53 N. Y. 620- 
 
 p. 25 (action). 
 
 , Pitkin v. 
 
 V. Town op Guilford, 47 N. Y. 
 
 673; p. 106 (bonds). 
 
 , Town OP Guilpokd v. 
 
 , Veederw. 
 
 CooNEY V. CooNEY, 65 Barb. 524 ; p. 624 (pr.) 
 
 V. Whitfield, 41 How. 6 ; p. 76 (at- 
 tachment). 
 
 CooPE, Haydock v. 
 
 Cooper v. Bean, 5 Lans. 318; pp. 58 (appeal), 
 289 (evidence), 372, 373 (highway). 
 
 , Bullymore v. 
 
 V. Felter, 6 Lans. 485 ; p. 343 (execu- 
 tors and administrators). 
 
 , First National Bank op Troy v. 
 
 , Grout v. 
 
 , Hodges v. 
 
 Cooper, Morrill v. 
 
 V. Troy Woollen Co., 11 Abb. N. S. 
 
 353, n.; p. 89 (bankruptcy). 
 
 V. Turner, 2 Hun, 515 ; p. 160 (c'tract.) 
 
 , WOMBOUGH V. 
 
 CooPERSTOWN, Trustees of Village op, 
 
 GORHAM V. 
 
 CoPELANDt7. Citizens Gas Light Co., 61 
 Barb. 60; pp. 189 (corp.), 607 (practice). 
 
 COPPERMAN, NeWPIELD V. 
 
 V. People, 1 Hun, 15 ; affirmed 56 N. 
 
 Y. 591 ; p. 223 (criminal law). 
 CoRAY V. Matthewson, 44 How. 80 ; 7 
 
 Lans. 80; pp. 274, 275 (estop.), 681 (spec. 
 
 per.), 726, 728 (vend. & pur.), 734 (w'vr.) 
 
 COKBETT, FeRRELLW. 
 
 CoRBiN, People v. 
 
 Corcoran v. Holbbook, 59 N. Y. 517 ; pp. 
 
 455 (master and servant), 492 (negl.) 
 Corey v. Long, 43 How. 492 ; 12 Abb. JV. S. 
 
 427 ; p. 648 (receiver). 
 
 1). Rice, 4 ians; 141; pp. 22 (action), 
 
 - 287. (evidence), 374 (highway). 
 CoRKiNS, Van Keuren v. 
 CoRLEY V. Griffin, 36 N. Y. Supr. 515; p. 
 
 616 (practice). 
 CoRLiES, White v. 
 
788 
 
 TABLE OF CASES. 
 
 CoELiN V. Knapp, 5 ^Tura, 197 ; p. 562 (pl'd'g.) 
 Cornell, Maksden v. 
 Corn Exchange Bank, Stevens v. 
 CoKN Exchange Ins. Co., Allison v. 
 
 , Teeepenning v. 
 
 CoRNES, Gordon v. 
 
 CORNEY, MULDOWNET V. 
 
 Corning V. Troy Iron and Nail Factory, 
 44 N. Y. 577 ; pp. 29 (adv. poss'n.), 277 
 (estoppel), 596 (practice). 
 
 CORNWELL, EOMAINE V. 
 
 V. WoOLEY, 43 How. 475 ; pp. 434 (leg- 
 acy), 739 (will). 
 
 Corse, Tracy v. 
 
 Cortland County v. Herkimer County, 
 44 N. r. 22; pp. 306, 3i5 (evidence). 
 
 CoRWiN V. Campbell, 45 Hun, 9 ; pp. 130 
 (certiorari), 318 (evidence), 342 (injunc- 
 tion), 710 (towns). 
 
 V. Wesley, 34 N. Y. Supr. 109 ; p. 73 
 
 (assignment). 
 
 Cory, Leonard v. 
 
 V. , 56 N. Y. 494 ; pp. 4 (account- 
 ing), 413 (interest), 691 (subrog.) 
 
 1). Long, 2 Sweeny, 491 ; p. 537 (part- 
 nership). 
 
 Cosgrove v. Ogden, 49 N. Y. 255 ; pp. 456 
 (master and servant), 498 (ncgl.) 
 
 Cosmopolitan Gas Co., Wren v. 
 
 CosTELLO V. Dale, 1 Hun, 489 ; p. 458 
 (mechanic's lien). 
 
 V. Syracuse, etc. R. R. Co., 65 Barb. 
 
 92; pp.351 (former adj.), 498 (negl.), 582 
 (prac.), 646 (R. R. Co.) 
 
 Coster, Bates v. 
 
 V. Mayor, etc. City op Albany, 43 
 
 N. Y. 399 ; pp. 22 (action), 31 (Albany), 
 485 (munic'l. corp'n.), 582 (practice.) 
 
 CoTHREN, Campbell v. 
 
 Cottenbt, Fish v. 
 
 Cottle v. Vandbrheyden, 11 Abb. N. S. 
 17 ; a%. 39 How. 289 ; 56 Barb. 622 ; 
 p. 341 (ex'r. and adm'r.) 
 
 Cotton v. Maurer, 3 Hun, 552 ; p. 557 
 (pleading). 
 
 CoTTRELL, Clark v. 
 
 Coughlin, Carroll v. 
 
 CouGHTRY V. Globe Woollen Co., 56 N. 
 Y. 124 ; p. 491 (negligence). 
 
 V. Levinb, 4 Daly, 335 ; p. 165 (con- 
 tracts). 
 
 Coulter v. American Mbrch. Un. Ex- 
 press Co., 56 N. Y. 585 ; pp. 422 (just, 
 ct.), 496 (negl.), 584 (practice). 
 
 V. , 5 Lans. 67; pp. 66 (appeals), 496 
 
 (negl.), 584 (practice). 
 
 - V. Board of Education op New 
 York, 4 Hun, 569; pp. 455 (master and 
 servant), 647 (receipt)-. 
 
 , McTeague v. 
 
 V. Murray, 15 Abb. N. S. 129; 4 Daly, 
 
 506; pp. 144 (const, law), 391 (injunc- 
 tion). 
 
 V. Richmond, 59 N. Y. 478 ; pp. 93 
 
 (bills and notes), 320 (evidence). 
 
 , White v. 
 
 Countryman, Maroellus v. 
 
 COURSEN, HaZEWBLL V. 
 
 Courtney v. Baker, 60 N. F. 1; pp. 46 (ap- 
 peal), 586 (practice). 
 
 „. , 34 N. Y. Supr. 529 ; p. 316 
 
 (evidence). 
 
 „. , 37 jsr. Y. Supr: 249 ; p. 456 
 
 (master and servant). 
 Court of Special Sessions, People ex rel. 
 
 Walker v. 
 Covert, Fowle v. 
 
 , TOWLE V. 
 
 Cowan o. Mayor, etc. New York, 2 Hun, 
 632 ; pp. 204 (county charge), 281 (evi- 
 dence), 526 (officers). 
 
 Cowden, Benedict v. 
 
 Cowdery v. Coit, 44 N. Y. 382 ; revg. 3 
 Rob. 210 ; pp. 208 (covt.), 237 (dam- 
 ages), 252 (defense), 306 (evidence). 
 
 , VOSE V. 
 
 CowDiN V. Gottgeteen, 55 N. Y. 650 ; p. 
 361 (frauds, stat. of). 
 
 COWEE, JOSLYN V. 
 
 Cowing v. Altman, 5 Hun, 556 ; p. 87 
 
 (bankruptcy). 
 Cox V. Jambs, 59 Barb. 144; p. 245 (deed). 
 V. , 45 N. Y. 557; pp. 49 (appeal), 
 
 245 (deed), 273 (estoppel). 
 , Manufacturers' National Bank 
 
 OF Troy v. 
 V. New York Central & Hudson 
 
 River R. R. Co., 61 Barb. 615; p. 569 
 
 (practice). 
 
 ■». , 4 Hun, 176 ; pp. 2 (abatement 
 
 and rev.), 77 (attorney), 232 (damages). 
 
 V. Weller, 3 Hun, 612 ; p. 361 (frauds, 
 
 stat. of). 
 
 V. Wightman, 4 Hun, 799; pp. 72 (as- 
 sign.), 343 (exrs. and adm.) 
 
 Coykendall v. Eaton, 42 How. 378; pp. 82 
 
 (bailm.), 284 (evid.), 586 (practice). 
 CoYLE V. Sherwood, 1 Hun, 272; pp. 131 
 
 (certiorari), 507 (New York city), 526 
 
 (office, etc.) 
 CoziNE V. Walter, 55 N. Y. 304; pp. 80 
 
 (bail), 672 (sherifl). 
 
TABLE OF CASES. 
 
 789 
 
 Crafts, Crosby v. 
 
 Ckagin v. New York Cent. R. R. Co., 51 
 
 N. Y. 61; p. 124 (carrier). 
 Ckaig, Flint v. 
 
 , Ten Eyck v. 
 
 Craighead, Houck v. 
 
 Crain v. Cavana, 62 Barb. 109; pp. 260 
 
 (dower), 453 (mar. and div.) 
 Cramer v. Benton, 4 Lans. 291 ; 60 Barb. 
 
 216; pp. 30 (adv. poss.), 267 (eject.), 
 
 439 (lim. of act.), 552 (pleading). 
 
 V. , 64 Barb. 522; pp. 247 (deed), 
 
 273 (estoppel). 
 
 V. , 48 N. Y. 684; afllrming 57 
 
 Barb. 156. See Digest, vol. iv. 
 
 V. Mbtz, 57 N. Y. 659 ; pp. 173 (cont.), 
 
 233 (damages). 
 Crandall, DeWolf v. 
 , Richardson v. 
 
 V. ScHROEPEL, 1 Hun, 557; p. 102 
 
 (bills and notes). 
 
 Crane v. Baudouine, 55 N. Y. 256; revg. 
 
 65 Barb. 260; pp. 50 (appeal), 159 (cont.) 
 , Farmers and Mbchs. National 
 
 Bank v. 
 V. Genin, 60 N. Y. 127; p. 460 (mech's. 
 
 lien). 
 V. Kntjbel, 43 How. 389 ; 34 N. Y. Supr. 
 
 443; pp. 170 (contract), 735 (waiver). 
 , Rynders v. 
 
 V. Stiger, 58 N. Y. 625; pp. 37 (ap- 
 peal), 482 (mortgage). 
 
 Crapo, Kelly v. 
 
 Crary, Devlin v. 
 
 , Lynch v. 
 
 Crater v. Bininger, 45 N. Y. 545; affirm- 
 ing 54 Barb. 155. See Digest, vol. iv. 
 
 Crater v. Wilson, 14 Abb. N. S. 374; 47 
 N. Y. 673 ; p. 477 (mortgage). 
 
 Craw v. Easterly, 4 Lans. 513 ; affd. 54 
 N.Y. 679; pp. 192 (corp.), 275 (estoppel). 
 
 Crawford, Butterworth v. 
 
 V. Dox, 5 Hun, 507; p. 104 (bona fide 
 
 purchaser). 
 
 , Gilbert v. 
 
 , HiLDEBRANT V. 
 
 , Rector, etc. Church of the Re- 
 deemer V. 
 
 V. Russell, 62 Barb. 92; p. 179 (cont.) 
 
 V. Waters, 46 How. 210; pp. 693 (sum- 
 mary proc), 738 (waiver). 
 
 Crego, Clark v. 
 
 Cheque, Carver v. 
 
 Crevier v. Mayor, etc. New York, 12 
 Abb. N. S. 340; p. 392 (injunction). 
 
 Crichton, Turner v. 
 
 Cridler v. Curry, 44 How. 345; pp. 19, 
 
 25 (action). 
 Crill v. City op Rome, 47 How 398 ; pp. 
 
 464 (Mohawk river), 488 navigable river), 
 
 737 (watercourse). 
 Crippen v. Morss, 49 N. Y. 63; pp. 44 
 
 (appeal), 262 (easement), 275 (estoppel), 
 
 313 (evidence). 
 Crispin, Crowell v. 
 Crist v. Burlingame, 62 Barb. 351; pp. 
 
 366, 367 (guaranty). 
 U.Erie Railway Co., 58 N. Y. 638; 
 
 pp. 332 (evidence), 596 (practice). 
 Crittenden, Kingsland v. 
 Crocheron v. North Shore & Staten Is. 
 
 Ferry Co., 56 N. Y. 656; p. 488 (neg.) 
 Crocker, Bridgbford v. 
 u. CoLWELL, 46 N. Y. 212; pp. 536 
 
 (partnership), 723 (usury). 
 V. Crocker, 5 Hun, 587 ; pp. 265 
 
 (easement), 319 (evidence). 
 Crofut v. Brandt, 46 How. 481 ; 13 Abb. 
 
 N. S. 128;.afid. 47 How. 263; 58 N. Y. 
 
 106; p. 673 (sheriff). 
 
 V. Wood, 3 Hun, 571; p. 472 (mortg.) 
 
 Crolius v. Stark, 7 Lans. 811; 64 Barb. 
 
 112; p. 789 (wiU). 
 Crombie, Terrett v. 
 Cromwell v. Brooklyn Fire Ins. Co., 44 
 
 N. Y. 42; p. 408 (insurance). 
 Crooke, Sands v. 
 Crooks, People ex rel. Lord v. 
 Cropsby, Cohoes v. 
 Crosby, Bolen v. 
 V. Brown, 60 Barb. 548 ; p. 655 (rev. 
 
 law). 
 
 V. , 44 How. 149 ; p. 200 (costs). 
 
 ?). Crafts, 5 Hun, 327; p. 636 (p-inci- 
 
 pal and surety). 
 
 V. Watts, 49 How. 864 ; p. Ill (brokr.) 
 
 Cross, Ockerman j/. 
 
 V. O'DoNNELL, 44 N. Y. 661; pp. 863 
 
 (frauds, statute of), 660 (sale). 
 
 , ROLLIN V. 
 
 Grossman, Day v. 
 
 V. Lindslby, 42 How. 107 ; p. 76 (at- 
 tachment). 
 
 Crouch v. Parker, 56 N. Y. 597 ; pp. 288 
 (evidence), 426 (landlord and tenant). 
 
 Grouse v. Garlock, 45 How. 78 ; pp. 283, 
 334 (evidence). 
 
 , LiNNER !). 
 
 V. Walrath, 41 How. 86; pp. 151 
 
 (const, law), 422 (justice court). 
 
 Crow, Mechanics and Traders Nation- 
 al Bank v. 
 
790 
 
 TABLE OF CASES. 
 
 Ckowbli, v. Crispin, i Daly, 100; p. 633 
 (prin. and agent). 
 
 Ceowlby, Dailey v. 
 
 Ckozier v. Boston, N. Y. & Newport 
 Steamboat Co., 43 How. 466 ; p. 126 
 (carrier). 
 
 Ceugeb v. Dougherty, 43 N. Y. 107 ; pp. 
 267 (eject.), 279 (estop.), 299 (evidence). 
 
 Cryder, Gregory v. 
 
 Cuff v. Dorland, 57 N. Y. 560; revg. 55 
 Barb. 481 ; p. 65 (appeal). 
 
 CuLHANE u. New York Cent. & Hud. Riv. 
 R. R. Co., 60 N. Y. 133; pp. 493 (neg.), 
 591, 595 (practice). 
 
 CuLLEN, Meyer v. 
 
 Culver v. Western Un. Telegraph Co., 
 50 iV. Y. 691; pp. 165 (contract), 235 
 (damgs.), 568 (powers). 
 
 CuMiNES V. Board of Supervisors, Jef- 
 ferson Co., mBarh. 287; pp. 352 (for- 
 mer adj.), 685,688 (Stat.), 708 (towns). 
 
 CuMMiNG V. Brown, 43 N. Y. 504 ; p. 440 
 (lim. of action). 
 
 CUMMINGS V. TiMBERMAN, 49 HotO. 236 ; p. 
 
 612 (practice). 
 Cummins v. Agricultural Ins. Co., 5 Hun, 
 
 554 ; p. 399 (insurance). 
 Cunningham, In matter or, 1 Hun, 214; 
 
 p. 345 (exrs. and adm.) 
 
 , Ballou v. 
 
 V. People, 4 Hun, 455 ; p. 212 (criminal 
 
 law). 
 V. White, 45 How. 486 ; pp. 577, 622 
 
 (practice), 732 (waiver). 
 CuKRiB V. White, 45 N. Y. 822 ; revg. 1 
 
 166; 7 iJoJ. 637; pp. 658, 668 
 (sale), 706 (tender). 
 Curry, Cridler v. 
 Curtis, Adams v. 
 
 , Brooks v. 
 
 , Durand v. 
 
 V. Fox, 47 N. Y. 299 ; pp. 377, 381 
 
 (husband and wife). 
 
 V. GoKBY, 5 Hun, 555; pp. 71 (arbitra- 
 tion), 179 (contract). 
 
 , People ex rel. Barlow v. 
 
 V. Smith, 60 Barb. 9; p. 718 (trust, etc.) 
 
 Curtis v. Aykault, 47 N. Y. 73 ; p. 736 
 (watercourse). 
 
 V. , 3 Hun, 487; pp. 293 (evidence), 
 
 736 (watercourse). 
 
 CUSHING, SiSTARE v. 
 
 CusHMAN V. Brundrbtt, 50 N. Y. 296 ; pp. 
 
 40, 48 (appeal). 
 V. Hadfield, 15 Abb. N. S. 109 ; 52 
 
 N. Y. 653 ;,p. 49 (appeal). 
 V. Horton, 59 JST. Y. US i modifying 1 
 
 Hun, 601 ; p. 749 (will). 
 , People ex rel. Daniels v. 
 
 V. United States L. Ins. Co., 4 Hun, 
 
 783 ; pp. 294, 312 (evidence), 408 (insur.) 
 
 Cutler, Field v. 
 
 Cutting, Baker v. 
 
 CuTTS V. Guild, 57 N. Y. 229 ; p. 73 (as- 
 signment). 
 
 CuYLER V. Merrifield, 5 Hun, 559 ; p. 629 
 ^(principal and agent). 
 
 , Rochester, Nunda and Pa. R. R. 
 
 Co. u. 
 
 , Wheelock v. 
 
 D. 
 
 Dabnby, Leavitt v. 
 V. Stevens, 10 Abb. N. 5. 39 ; 2 
 
 Sweeny, 415 ; affirmed 46 N. Y. 681 ; pp. 
 
 64 (appeal), 187, 192 (corporation), 296 
 
 (evidence). 
 Daby v. Ericcson, 45 N. Y. 786 ; pp. 20 
 
 (action), 252 (defense), 282, 284, 308 
 
 (evidence). 
 Dadney v. Greeley, 12 Abb. N. S. 191 ; p. 
 
 51 (appeal). 
 Dagg, Bell v. 
 Dagron, DeMets v. 
 Dajley v. Crowley, 5 Lans. 301 ; p. 241 
 
 (damages). 
 Daily v. Kingon, 41 How. 22 ; p. 478 (mort- 
 gage). 
 
 Dainese v. Allen, 45 How. 430 ; 14 Abb. 
 N. S. 363 ; 36 N. Y. Supr. 98 ; pp. 54, 
 .58 (appeal), 292 (evidence), 603 (prac.) 
 
 Dakb v. Patterson, 5 Hun, 558 ; pp. 175, 
 177 (contract). 
 
 Dakin, Mechs. & Traders Bank, Jersey 
 City v. 
 
 Dale v. Brooklyn City, Hunter's Point 
 AND Prospect Park R. R. Co., 1 Hun, 
 146; affirmed 60 N. Y. 638; pp. 333 (evi- 
 dence), 499 (negligence), 591 (practice). 
 
 , COSTELLO V. 
 
 V. Jacobs, 41 How. 94 ; 10 Abb. N. S. 
 
 382 ; p. 614 (practice). 
 
 , Ludlow v. 
 
 Daley, Matthews v. 
 
TABLE OF, CASES. 
 
 791 
 
 V. People, 2 Hun, 681 ; p. 218 (crim- 
 inal lav). 
 
 DaLLETT, PHlLBRICKi;# 
 
 Dalley, Wakeman V . 
 
 Dalrymplk v. Hannum, 54 N. Y. 654 ; pp. 
 
 38 (appeal), 330 (evidence). 
 V. Hillenbband, 2 Hun, 488 ; pp. 93, 
 
 100 (bills and notes). 
 
 V. Hunt, 5 Hun, 111; p. 553 (pleadgs.) 
 
 Dalt, Baikd v. 
 
 V. BuRCHBLL, 13 Alh. N. S. 264 ; pp. 
 
 478; 477 (mortgage), 574 (practice). 
 V. Grimlet, 49 How. 520 ; p. 264 
 
 (easement). 
 , Isaacs v. 
 
 , KiRBT V. 
 
 , People ex rel. Lewis v. 
 
 ,POLK V. 
 
 , Shook v. 
 
 V. Smith, 38 N. Y. Supr. 158; 49 How. 
 
 150 ; pp. 385 (inj.), 418 (jurisdiction). 
 
 Dambmann v. Buttekpield, 2 Hun, 284 ; 
 p. 577 (practice). 
 
 Dambman v. Schulting, 4 Hun, 50 ; pp. 16 
 (action), 559 (pleadings). 
 
 Damon v. Mooke, 5 Zans. 454; p. 670 (se- 
 duction). 
 
 Daniels, Cayuga Co. Natl. Bank v. 
 
 , gutchess v. 
 
 Dana v. Owen, 54 N. Y. 646; p. 76 (assign- 
 ment for benefit). 
 
 Dane, Chicago & G. E. B. B,. Co. v. 
 
 Danklessen v. Beaynard, 3 Daly, 183; p. 
 74 (assignment). 
 
 Danolds, Wilbob v. 
 
 Darbee v. Elwood, 2 Hun, 599; p. 505 
 (new trial). 
 
 Darling, Botsford v. 
 
 — — V. Brewster, 55 N. Y. 667; pp. 44 (ap- 
 peal), 199 (costs), 312 (evidence). 
 
 , Waddell v. 
 
 Darnall v. Morehouse, 45 N. Y. 64 ; re- 
 versing 36 How. 571 ; pp. 101 (bills and 
 notes), 540 (payment). 
 
 Daeragh v. McKim, 2 Hun, 337 ; pp. 574 
 (practice), 694 (superior court). 
 
 , Tenth Natl. Bank op N. Y. ». 
 
 , Welsh v. 
 
 Darein, Fiedler v. 
 
 , MORAN V. 
 
 Dareow, Eemple v. 
 
 V. Northrop, 1 Hun, 431; pp. 292, 312 
 
 (evidence). 
 Dart v. Ensign, 47 N. Y. 619; reversing! 2 
 
 Lans. 383; p. 124 (carrier). , 
 
 Daet, Murphy v. , ; ' 
 
 V. Walker, 3 Daly, 136; pp. 23 (action), 
 
 313 (evidence). 
 
 V. Walker, 43 How. 29 ; 4 Daly, 188; 
 
 p. 653 (removal to U. S. court). 
 
 DauBney v. Hughes, 60 N. Y. 187 ; p. 376 
 
 (husband and wife). 
 Davenport, Genet v. 
 Davidson, Alfaeo v. 
 
 , ISHAM V. 
 
 , Salzbacher v. 
 
 Davis v. Banks, 2 Sweeny, 184; p. 432 (land. 
 
 and tenant). 
 
 V. Borst, 58 N. Y. 669 ; p. 37 (appeal). 
 
 , Carswell v. 
 
 , Clemons v. 
 
 , Cooke v. 
 
 — - V. Davis, 1 Hun, 444; pp. 452, 454 
 
 (marriage and divorce). 
 
 , Fish v. 
 
 , guiteman v. 
 
 V. GwTNNE, 57 N. Y. 676 ; aflBrming 4 
 
 Daly, 218; p. 183 (conv.) 
 , Hawlby v. 
 
 V. LoTTiCH, 46 N. Y. 393; pp. 248 
 
 (deed), 705 (tenant in common). 
 
 , Mills v. 
 
 V. N. Y. Central & HudsoS River 
 
 E. R. Co., 47 iV. Y. 400; p. 496 (neg.) 
 
 , People v. 
 
 , Renss. & Sar. R. E. Co. v. 
 
 V. Reynolds, 48 Hov). 210; affirmed 5 
 
 Hun, 651; p. 20 (action). 
 
 , Rice v. 
 
 , Rochester, Town op, v. 
 
 V. Stover, 58 N. Y. 473; p. 554 (plead- 
 ings). 
 
 , Snyder v. 
 
 , townsend v. 
 
 , Tweed v. 
 
 , Wadley v. 
 
 , Wannemacher v. 
 
 Davison v. City Bank, 57 N. Y. 81; p. 141 
 (consignor, etc.) 
 
 , ISHAM u. 
 
 Dawlby v. Brown, 43 How. 17 and 22; pp. 
 268 (ejectment), 393 (injunction). 
 
 V. , 65 Barh. 107; pp. 210 (ored. 
 
 bill), 243 (deed), 555 (pleadings). 
 
 Day v. Ceos^man, 1 Hun, 570; pp. 374 
 (highway), 498 (negligence). 
 
 V. Hammond, 57 N. Y. 479; p. 70 (ar- 
 bitration). 
 
 V. MooNEY, 4 Hun, 134; pp. 243 (deed), 
 
 471 (mortgage). 
 
 „. N. Y. Central R. R. Co., 51 N. Y. 
 
 583 ; pp. 17 (action), 233 (damages). 
 
792 
 
 TABLE OF CASES. 
 
 „. Pool, 63 Barl. 506; affirmed 52 N. Y. 
 
 416; pp. 593 (practice), 665 (sale). 
 
 ■, Spking v. 
 
 „. Stone, 15 Abh. N. S. 187 ; p. 545 
 
 (pleading). 
 Dayton, Albany & Susq. K. R. Co. v. 
 
 , Gibbons v. 
 
 , People ex rel. Mills v. 
 
 , People ex rel. Williams v. 
 
 DBAFENDORr, LiNDSLAY V. 
 
 Deal, Greene v. 
 
 V. Maxwell, 51 N. Y. 652; p. 862 
 
 (frauds, statute of). 
 
 Dean v. ^tna Life Ins. Co., 48 How. 36 ; 
 2 Hun, 858; pp. 61 (appeal), 313 (evi- 
 dence), 408, 409 (insurance), 579 (prac- 
 tice), 731, 732 (waiver). 
 
 , Delavergne v. 
 
 , Emberson v. 
 
 , Hammond v. 
 
 Deanstille Cemetery Association, In 
 matter or, 5 Hun, 482; pp. 128 (ceme- 
 tery), 149 (constitutional law). 
 
 Debbe v. Debbe, 50 N. Y. 695; p. 48 (app.) 
 
 Db Bary v. Stanley, 48 How. 349; p. 577 
 (practice). 
 
 De Camp v. New Jersey Mut. Life Ins. 
 Co., 2 Sweeny, 481; pp. 58 (appeal), 
 654 (removal to U. S. court) . 
 
 Decker, Cooley v. 
 
 , GOPSIL V. • 
 
 , Lee v. 
 
 V. Leonard, 6 Lans. 264; p. 469 (mort- 
 gage). 
 
 , McCafferty v. 
 
 , Read v. 
 
 V. Saltzman, 1 Hun, 421; pp. 20 (ac- 
 tion), 72 (assignment), 108 (bounties), 
 301 (evidence), 566 (pleading). 
 
 V. , 59 N. Y. 275; affirming 1 Hun, 
 
 421; p. 464 (money had). 
 
 De Comeau v. Guild Farm Oil Co., S Daly, 
 218 ; p. 690 (stocks). 
 
 Dederich v. McAllister, 49 How. 851 ; p. 
 299 (evidence). 
 
 Deer Park Blue Stone Co., Harteau v. 
 
 De Forest v. Farley, 4 Hun, 640 ; p. 479 
 (mortgage). 
 
 De Graff v. McKinley, 88 JV. Y. Supr. 
 203; p. 601 (practice). 
 
 Degraw v. Elmore, 50 N.Y. 1 ; pp. 466 
 (money paid), 566 (pleadings). 
 
 De Groot, Benedict v. 
 
 , Jay v. 
 
 De Hart v. Hatch, 1 Hun, 238; p. 626 
 (practice). 
 
 „. , 3 Hun, 375 ; pp. 53 (appeal), 
 
 147 (constitutional law). 
 
 Delafield v. Un^n Ferry Co. of Brook- 
 lyn, 51 N. Y. 671; affirming 5 Rob. 
 207. See Digest, vol. iv. 
 
 Delahunt, Scott v. 
 
 Db La Montaigne, Boyd v. 
 
 Delamater v. People, 5 lans. 332 ; p. 755 
 (witness). 
 
 Delancey, In re, 52 N. Y. SO'; pp. 153 (con- 
 stitutional law), 519 (New York city). 
 
 Delancy v. Brett, 51 JV. Y. 78; p. 44 
 (appeal). 
 
 , People ex rel. Marsh v. 
 
 Delano, Cambridge Valley Bane v. 
 
 , Kain v. 
 
 Delaplaine, Peters v. 
 
 Delavan v. Duncan, 49 JV. Y. 485; pp. 680, 
 681 (spec, perf.), 727 (vendor andpurch.) 
 
 V. , 4 Hun, 29 ; p. 680 (spec. perf). 
 
 Delavergne v. Dean, 45 How. 206; p. 434 
 (legacy). 
 
 Delaware & Hudson Canal Co. v. Law- 
 rence, 2 Hun, 163; pp. 28 (action), 389 
 (injunction), 488 (navigable stream), 736 
 (watercourse). 
 
 , English v. 
 
 , Salters v. 
 
 Delaware, Lack, and W. R. R. Co. v. 
 Brown, 58 N. Y. 573; reversing 86 
 N. Y. Supr. 126; p. 167 (contract). 
 
 , Eaton v. 
 
 , HiGGINS V. 
 
 - — , Rounds v. 
 
 , Taber v. 
 
 Delcomyn v. Chamberlin, 89 N. Y. Supr. 
 
 359 ; affirming i8 How. 409 ; p. 200 (costs). 
 Dele VAN v. Simonson, 35 N. Y. Supr. 243; 
 
 p. 566 (pleading). 
 Delemater v. Bush, 45 How. 382; 63 Barb. 
 
 168; p. 321 (evidence). 
 DbLeyer, McLane v. 
 Delhi, Town of, v. Graham, 8 Hun, 407 
 
 p. 571 (practice). 
 Delhi, Village of, u. Youmans, 45 N. Y. 
 , 362 ; affirming 50 Barb. 316. See Di- 
 gest, vol. iii. 
 De Llamosas v. DeLlamosas, 2 Hun, 380 
 
 p. 453 (marriage and divorce). 
 DeLong, Hooper v. 
 Deloss, Woodbury v. 
 Demarbst v. Wickham, 4 Hun, 627 ; p. 154 
 
 (constitutional law), 507 (N. Y. city). 
 DeMbts v. Dagrow, 58 AT. Y. 635 ; pp. 568 
 
 (powers). 
 , Hayden v. 
 
TABLE OF CASES. 
 
 793 
 
 DeMieb, Myres v. 
 Deming, McCakttw. 
 
 V. PuLESTON, 33 N. Y. Supr. 281 ; 
 
 S. C, 35 id. 309; affirmed 55 N. Y. 655; 
 pp. 190, 192 (corporation). 
 
 Dempset, Conor v. 
 
 V. Hall, 35 N. Y. Supr. 201; p. 198 
 
 (costs). 
 
 V. Kipp, 62 Barb. 311 ; p. 371 (highway). 
 
 Denham v. Jayne, 3 Hun, 614 ; p. 755 
 (witness). 
 
 Denicke, Reeves v. 
 
 Denison, Stoddard v. 
 
 , St. Peter v. 
 
 Dennett, Trustees of College Pt. v. 
 
 Dennis v. Ryan, 5 Lans. 350 ; 63 Barb. 145; 
 pp. 212 (crim. law), 444 (mal. pros.) 
 
 Dent v. N. Am. Steamship Co., 49 N. Y. 
 390 ; pp. 161 (contr.), 301, 318 (evid.) 
 
 V. People, 46 How. 264; p. 229 (crim- 
 inal law). 
 
 V. Watkins, 49 How. 275 ; p. 615 
 
 (practice). 
 
 Denton v. Denton, 41 How. 221; pp. 452 
 (marriage and divorce), 609 (practice). 
 
 Denue, Cole v. 
 
 Department op Police, People ex rel. 
 Clapp v. 
 
 Depew v. Dewey, 56 N. Y. 657 ; p. 87 (app'l.) 
 
 - V. , 46 How. 441; pp. 52 (appeal), 439 
 
 (lim. of action), 482 (mortgage). 
 
 DePeysteb, Johnson v. 
 
 V. Murphy, 39 N.Y. Supr. 255; pp. 207 
 
 (coYt.), 515 (N.Y. city), 728 (vend. & pur.) 
 Deposit Natl. Bank v. Wickham, 44 How. 
 
 421 ; pp. 837 (execution), 612 (practice). 
 , Village OF, v. Vail, 5 Hun, 310; pp. 
 
 147 (constitutional law), 684 (statute). 
 Derby v. Habtman, 3 Daly, 458 ; p. 353 
 
 (former adjudication). 
 DeRoe v. Smith, IHun, 607; p. 725 (usury.) 
 DeRonde v. Olmsted, 47 How. 175 ; p. 458 
 
 (mechanic's lien). 
 Despabd v. Churchill, 53 N. Y. 192 ; pp. 
 
 697 (surrogate), 742 (will). 
 Detmold v. Drake, 46 N. Y. 318; pp. 431 
 
 (landlord and tenant), 730 (waiver). 
 Detwiller v. Mayor, etc. of the City op 
 
 N. Y., iQHow. 218 ; p. 509 (N. Y. city). 
 Develin v. Coleman, 50 N. Y. 531; p. 182 
 
 (conversion). 
 DEVLiN, Clapp v. 
 V. Cbaby, 1 Hun, 489 ; affii-med 60 
 
 iV.r.685; pp. 255 (defense), 299 (evid.) 
 V. Crary, 60 N. Y. 635 ; p. 299 (evi- 
 dence). 
 
 V. Devlin, 4 Hun, 651 ; p. 384 (injunc- 
 tion). 
 
 , Getty v. 
 
 , McKnight v. 
 
 V. Mayor, etc. of New York, 15 
 
 Abb. N. S. 31 ; pp. 202 (costs), ' 594 
 (practice). 
 
 V. Mayor, etc. of N. Y., 48 Hoiii. 457 ; 
 
 pp. 144 (const, law), 510 (N. Y. city). 
 
 , Negley v. 
 
 Devoe v. Brandt, 58 N. Y. 462 ; revg. 58 
 Barb. 493; pp. 108 (bona fide purchaser), 
 296 (evidence), 355 (fraud). 
 
 V. Nutter, 1 Hun, 713 ; p. 604 (prac- 
 tice). 
 
 Devyr w. ScHABF^R, 55 N. r. 446; pp.80 
 (adv. poss.), 44 (appeal). 
 
 Dewes, Friedman v. 
 
 Dewey, Depew v. 
 
 , People ex rel. Foote v. 
 
 V. Sups, of Niagaba Co., 2 Hun, 392 ; 
 
 p. 468 (money paid). 
 
 De Witt, Duncan v. 
 
 V. Elmiba Nobles Manp'g. Co., 5 
 
 Hun, 801 ; p. 705 (ten. in com.) 
 
 , Hansee v. 
 
 , Odell v. 
 
 , Palmeb v. 
 
 De Wolf v. Crandall, 84 N. Y. Supr. 14 ; 
 
 pp. 286 (evidence), 852 (former adj.) 
 Dexter, Gbiswold v. 
 
 V. Norton, 47 N. Y. 62 ; afEg. 55 
 
 Barb. 272 ; p. 667 (sale). 
 
 Deyoe v. Saratoga Springs, Village of, 
 
 1 Hun, 341 ; pp. 484 (mun. corp.), 669 
 
 (Saratoga). 
 Deyo, Abbey v. 
 Diamond v. Williamsburgh Ins. Co., 4 
 
 Daly, 494 ; p. 33 (amend.) 
 Dibble v. Camp, 10 ^66. N. 8. 92 ; 60 Barb. 
 
 150 ; p. 71 (arbit.) 
 DicKEL, Kain v. 
 DiCKERSON V. Wason, 47 N. Y. 439 ; 
 
 revg. 54 Barb. 230 ; pp. 83 (banks), 92 
 
 (bills and notes). 
 Dickinson, Buckingham v. 
 
 , Chester v. 
 
 , Oberly v. 
 
 V. Vanderpool, 2 Hun, 626 ; p. 556 
 
 (pleading). 
 V. Water Commissioners of Pough- 
 
 KEEPSiE, 2 Hun, 615; p. 319 (evidence). 
 Dickson v. Broadway & Seventh Av. R. R. 
 
 Co., 41 How. 151 ; 88 N. Y. Supr. 380 ; 
 
 sec 47 N. Y'507 ; pp. 298 (evidence), 
 
 495 (negligence). 
 
794 
 
 TABLE OF CASES. 
 
 V. Broadway & Seventh Av. R. R. 
 
 Co., 47 iV. r. 507 ; pp. 38, 48 (appeal). 
 
 , ViCKERT V. 
 
 DiEDERicH, Jones v. 
 
 DiERKES, KiSSAM V. 
 
 DiBRS, SOC'Y FOR REFORMATION OP JtJVE- 
 
 NiLE Delinquents v. 
 Dietrich v. Mayor, etc. of New York, 5 
 
 Hun, 421 ; p. 468 (money paid). 
 Dietz v. Dibtz, 48 How. 114 ; 2 Hun, 339 ; 
 
 p. 581 (practice). 
 V. McCallum, 44 How. 493 ; p. 577 
 
 (practice). 
 DiEZ, Matter of Will, 50 N. Y. 88 ; pp. 
 
 696 (surrogate), 737, 738 (will). 
 Dike v. Erie Ry. Co., 45 N. Y. 113 ; pp. 
 
 162 (contract), 435 (lex loci). 
 Dilla YE, Anderson v. 
 V. Com. Bank of Whitehall, 51 N. Y. 
 
 345; pp. 105(Jona_/frfepur.), 719 (trusts). 
 V. Greenough, 45 N. Y. 438 ; p. 716 
 
 (trusts). 
 
 , Foot v. 
 
 Dillon v. Anderson, 43 N. Y. 231 ; pp. 
 
 159 (contract), 234 (damages), 307 (evi- 
 dence), 631 (prin. and agent). 
 V. Mastbrton, 39 N. Y. Supr. 133 ; 
 
 pp. 171, 173 (contract). 
 V. People, 1 Hun, &rCl ; afid. 58 N. 
 
 Y. 669 ; p. 225 (crim. law). 
 
 , Roberts v. 
 
 DiMMiCK, Hadden v. 
 
 , Sharp v. 
 
 DiMOCK, Bronson v. 
 
 , Weymouth v. 
 
 DiNGMAN, Hamlin v. 
 
 DiNiNNY fc. N. Y. & N. Haven R. R. Co., 
 
 49 N. Y. 546 ; p. 126 (carrier). 
 DiNSMOHE U.Adams, i8 How. 274; p. 609 
 
 (practice). 
 V. , 49 How. 238 ; 5 Hun, 149 ; pp. 
 
 424 (laches), 610 (practice). 
 V. Atlantic & Pac. R. R. Co., 46 How. 
 
 193 ; p. 384 (injunction). 
 
 , Bacon v. 
 
 , Belger v. 
 
 , Cochran u. 
 
 , COLLENDER V. 
 
 V. Duncan, 57 N. Y. 573 ; reversing 4 
 
 Daly, 199 ; pp. 105 (Jona/rfe purchaser), 
 713 (treasury notes). 
 
 , Huntington v. 
 
 ^, KiRKLAND V. 
 
 , LlENAN V. 
 
 V. Mayor, etc. of Nsw York, 4 Hun, 
 
 643 ; p. 558 (pleading). 
 
 , Magnin v. 
 
 , Wetzbll v. 
 
 DiSBOROUGH V. Herdman, 52 N. Y. 660 ; p. 
 
 165 (contract). 
 
 , Ingraham v. 
 
 DisBROw V. Garcia, 52 N. Y. 654 ; p. 623 
 
 p ractice). 
 
 , Green v. 
 
 V. Mills, 2 Hun, 132 ; pp. (465 (money 
 
 had, etc.), 696 (surrogate). 
 Dispensary & Hospital, Soc'y Women's 
 
 Inst, of N. Y. , People v. 
 DiSTLER, Germania Bank OF New York v. 
 Ditchett v. Spuyten Duyvil, etc. R. R. 
 
 Co., 5 Hun, 165; pp. 499 (negligence), 
 
 644 (R. R. Co.) 
 DivENY V. City of Elmira, 51 N. Y. 506 ; 
 
 pp. 421 (juror), 485 (municipal corp.) 
 Divoll v. Hbnken, 48 N. Y. 672 ; p. 44 
 
 (appeal). 
 Dix, Bell v. 
 
 , Mitchell v. 
 
 Dixon, Ashley v. 
 
 , Coleman v. 
 
 , Myers v. 
 
 DoANE, Gawtry v. 
 
 DoD V. Fourth Nat. Bank op N. Y., 59 
 
 Barb. 265; p. 83 (banks). 
 DoDD, Blossom v. 
 
 , Johnson v. 
 
 , Taylor v. 
 
 Dodge, Bradley v. 
 
 , Comstock v. 
 
 , Letson v. 
 
 , Marsh v. 
 
 , Saxton v. 
 
 V. Wellman, 43 How. 427 ; affirming 
 
 42 Barb. 390; pp. 267 (ejectment), 357 
 
 (fraud), 678 (specific performance) . 
 
 , Williamson v. 
 
 DoHRiNG, People v. 
 
 DoHN V. Farmers Jt. St. Ins. Co., 5 Lans. 
 
 275 ; pp. 400, 401 (ins.), 733 (waiver). 
 Dolan v. Fagan, 63 Barb. 73 ; p. 307 (evi.) 
 
 , Scullin v. 
 
 Dole v. ST. Y. Central R. R. Co., 12 Abb. 
 
 N. S. 385 ; p. 673 (sheriff). 
 Doll v. Earle, 59 N. Y. 638 ; affirming 65 
 
 Barb. 298 ; pp. 467 (money paid), 542 
 
 (payment). 
 V. Harlow, 2 Hun, 659 ; p. 239 (dam- 
 
 , Redlich v.. 
 
 DOELLNER, StEINHART V. 
 
 DoLLARD V. Taylor, 33 N. Y. Supr. 496 ; 
 
 p. 52 (appeal). 
 
TABLE OF CASES. 
 
 795 
 
 DoLSON V. Kerb, 5 Hun, 643 ; p. 75 (assign- 
 ment for benefit). 
 DoM. & Foreign * Missy. Socy., Brund- 
 
 AGE V. 
 
 Donaldson, Clark v. 
 
 , French v. 
 
 Donley w. Graham, 48 N. Y. 658; p. 38 
 
 (appeal). 
 DoNOHUE, Kelly v. 
 , V. Mayor, etc. op N.Y., 3 Daly, 65 ; pp. 
 
 485 (m'pal. Corp.), 491 (negl.) 
 V. People, 56 N. Y. 208 ; pp. 218, 
 
 225,226, 280 (criminal law). 
 Donovan v. Comp. Geneeale "Trans- At- 
 
 LANTiQUE, 89 N. Y. Supr. 519; pp. 
 
 253 (defense), 556 (pleading). 
 V. Sheridan, 37 N. Y. Supr. 256 ; pp. 
 
 209,210 (creds. biU), 378 (husband and 
 
 wife), 716 (trusts). 
 DooLiTTLE, Cook v. 
 Doeemus, Postw. 
 
 V. Williams, 4 Hun, 458; pp. 72 (as- 
 signment), 97 (bills and notes). 
 
 DOELAND, CiTFF V. 
 
 DoRN V. Backer, 61 Barb. 597; pp. 527 
 (officer, &c.), 702 (taxes). 
 
 V. Fox, 6 Lans. 162; pp. 414 (inter- 
 pleader), 527 (officer)'. 
 
 Dorris v. French, 4 Hun, 292 ; pp. 189 
 (corporation), 253 (defense), 280 (estop.) 
 
 V. Sweeney, 60 N. Y. 463 ; affirming 64 
 
 Barb. 686 ; pp. 14 (actn.), 184, 189 (corp.) 
 
 Dorwin, Peteib v. 
 
 V. Strickland, 57 N. Y. 492 ; pp. 15 
 
 (action), 527 (officer). 
 
 Doscher v. Shaw, 52 N. Y. 602; p. 367 
 (guaranty). 
 
 Doty D. Wilson, 47 iV. Y. 580 ; reversing 
 5 Lam. 7 ; pp. 365 (gift), 650 (release). 
 
 Doubleday v. Kress, 50 N. Y. 410; re- 
 versing 60 Barb. 181; pp. 541 (pay- 
 ment), 628 (principal and agent). 
 
 DouGAN V. Champlain Transpn. Co., 56 
 iV. F. 1; affirming 6 Lans. 430 ; pp. 420 
 (jurisdiction), 493 (negligence). 
 
 Dougherty, Cruger v. 
 
 , Goldberg v. 
 
 — — V. Vallotton, 38 N. Y. Supr. 455; pp. 
 12 (action), 565 (pleading). 
 
 V. O'DoNNELL, 4 Daly, 60; p. 285 
 
 (damages). 
 
 Douglass, Matter op, 12 .466. N. S. 161 ; 
 46 N. Y. 42 ; reversing 40 How. 201 ; 9 
 Ahb. N. S. 84 ; 58 Barb. 174 ; p. 517 
 (N. Y. city). 
 
 , Chapman v. 
 
 V. Douglass, 18 Abb. JV. S. 291; pp. 452 
 
 458 (marriage and divorce). 
 
 V. Douglass, 5 Hun, 140; pp. 50 (app'l.), 
 
 452 (marriage and divorce), 685 (stats.) 
 V. Dudley, 48 N. Y. 688 ; p. 180 (con- 
 tribution). 
 
 , Hamilton u. 
 
 , Hoy v. 
 
 , Nash v. 
 
 , Smith u. 
 
 , Village &p, Weismae v. 
 
 DouNCE V. Dow, 57 N. Y. 16 ; pp. 554 (plead- 
 ing), 666 (sale). 
 V. Parsons, 45 N. Y. 180 ; p. 536 (part- 
 nership). 
 DouPE V. Genin, 45 N. Y. 119 ; affirming 1 
 Sweeny, 25; 37 How. 5. See Digest, 
 vol. iv. 
 Dow, DOUNCB V. 
 
 V. Way, 64 Barb. 255; p. 179 (contr't.) 
 
 Dowdney v. Mayor, etc. op N. Y. city, 
 54 N. Y. 186; pp. 207 (covenant), 515 
 N. Y. city). 
 
 V. McCoLLOM, 48 How. 342 ; 59 N. Y. 
 
 367; pp. 169 (cont.), 463 (mechs. lien). 
 
 V. VoLKENiNG, 87 N. Y. Supr. 313; p. 
 
 571 (practice). 
 DowiE, Boyd v. 
 
 DowLiNG V. Bucking, 15 Abb. N. S. 190 ; 
 52 N. Y. 658; p. 195 (costs). 
 
 , Norton v. 
 
 Downer v. Carpenter, 1 Hun, 591 ; p. 629 
 
 (principal and agent). 
 V. Church, 44 N. Y. 647; p. 678 (spe- 
 cific performance). 
 Downing v. Kelly, 48 N. Y. 433 ; pp. 88, 
 48 (appeal). 
 
 , Miller v. 
 
 Downs v. N. Y. Central R. E. Co., 47 N. 
 Y. 88; pp. 294, 308, 315 (evidence), 499 
 (negligence). 
 
 V. N. Y. Central R. R. Co., 56 N. Y. 
 
 664; pp. 45, 46 (appeal). 
 Dows V. Geiswold, 4 Hun, 550; p. 175 
 
 (contract). 
 Dox, Crawford v. 
 
 Doyle v. Gibbb, 6 Lans. 180; p. 434 (land- 
 lord and tenant). 
 
 V. Halpin, 33 N. Y. Supr. 352; p. 164 
 
 (contract). 
 
 V. Lord, 48 How. 142; p. 427 (landlord 
 
 and tenant). 
 
 „. , 39 N. Y. Supr. 421 ; pp. 264 
 
 (easement), 425 (landlord and tenant). 
 Draixisg Swamp Lands, Matter op, 5 
 Hun, 118; p. 262 (drainage). 
 
796 
 
 TABLE OF CASES. 
 
 Dkake, Bakeb v. 
 
 , Detmold v. 
 
 „. GiLMORB, 52 N. Y. 389 ; p. 375 
 
 (husband and wife). 
 V. Mayor, etc. New York city, 7 
 
 Lans. 340 ; pp. 148 (constitutional law), 
 
 507, 509 (New York city). 
 V. O'DoNNELL, 49 How. 25; p. 462 
 
 (mechanics' lien). 
 
 , Stewart v. 
 
 Draper, Hackley v. 
 Drew, Bartlett v. 
 
 , Brady v. 
 
 V. Swift, 46 N. Y. 204 ; pp. 246 (deed), 
 
 318 (evidence). 
 
 , Wallace v. 
 
 Dreter v. Eauch, 42 How. 22 ; 10 Abb. xV. 
 
 S. 343; 3 Daly, 434; pp. 109 (broker), 
 
 259 (district court), 572 (practice). 
 Driggsu. Simson, 60 N. Y. 641; pp. 287 
 
 (evidence), 611 (practice). 
 V. Smith, 45 How. 447 ; 36 iV. Y. Supr. 
 
 283; p. 293 (evidence). 
 
 V. , 47 How. 215; p. 612 (practice). 
 
 Driscoll v. West Bradley & Cary Mfg. 
 
 Co., 59 N. Y. 96; affg. 36 iV. F. Supr. 
 
 488; pp. 105 (bona fide purchaser), 184 
 
 (corporation), 276 (estoppel). 
 Drdckeb v. Simon, 4 Daly, 53; pp. 241 
 
 (dam's.), 433 (landl. & ten.), 583 (pract.) 
 Dry Dock, E . B. & B. R. B,. Co. u. Cunning- 
 ham, 45 How. 458; p. 622 (practice). 
 , Tregear v. 
 
 DUANESBURGH, ToWN OF, V. JeNKINS, 57 
 
 N. Y. 177; pp. 153 (constitutional law), 
 
 687 (statute), 708 (towns). 
 DuBois V. Barker, 4 Hun, 80; p. 720 (trusts). 
 V. Hermance, 56 N. Y. 673 ; p. 175 
 
 (contr.), 233 (dam's.), 556, 557 (plead'g). 
 V. Miller, 5 Hun, 332; p. 136 (civil 
 
 damage act), 328 (evidence). 
 DucHARDT, Smith v. 
 Dudley, Douglass v. 
 V. Grissler, 37 N. Y. Supr. 412; pp. 
 
 23 (action), 51 (app'l.), 559, 560 (pleadg.) 
 
 , Hbalby v. 
 
 J People ex rel. Grissler v. 
 
 \. SoRANTON, 57 N. Y. 424; p. 566 
 
 (pleading). 
 Duff, In matter of, 41 How. 350; 10 Abb. 
 
 N. S. 416; 43 N. Y. 469 ; p. 52 (app'l.) 
 
 , Bolles V". 
 
 V. Gardner, 7 Lans. 165; pp. 23 (ac- 
 tion), 538 (partnership). 
 V. Wardell, 10 Abb. N. S. 84; p. 
 
 197 (costs). I 
 
 DuFFUNY V. Furgeson, 5 Hun, 106 ; p. 7 
 
 (actions). 
 Duffy v. Masteeson, 44 N. Y. 557 ; pp. 
 
 43 (appeal), 286 (evidence). 
 V. O'DoNOVAN, 46 N. Y. 223; pp. 706 
 
 (tender), 732, 735 (waiver). 
 V. O'DoNovAN, 52 N. Y. 634; p. 681 
 
 (spec, perf.) 
 DuFlonu. Powers, 14.456. N. 5.391; pp. 
 
 355, 357 (fraud), 630 (prtn. and agent). 
 
 , Russell v. 
 
 DuFoRTw. CoNROY, 1 Hun, 609; p. 246 
 
 (deeds). 
 DuGRO, Matter of, 50 iV. Y. 513; p. 510 
 
 (N. Y. city). 
 DuMESNiL, Matter of, 47iV. F. 677; sub 
 
 nom Spotts v. Dumesnil, 12 Abb. JV. S. 
 
 117; p. 68 (appeal). 
 
 , Spotts v. 
 
 Dumond v. Kiff, 7 Lans. 465; p. 740 (will). 
 
 Dunbar, Penfibld v. 
 
 Duncan B. Berlin, 11 Abb. N. S. 116; 46 
 
 JV. Y. 685; p. 468 (money paid). 
 V. Berlin, 38 N. Y. Supr. 31 ; affd. 
 
 60 N. Y. 151; pp.465 (money paid), 619 
 
 (practice) . 
 
 , Delay AN v. 
 
 V. DeWitt, 49 How. 131; p. 606 (prac.) 
 
 , Dinsmore v. 
 
 , Hoy v. 
 
 Dung v. Parker, 52 N. Y. 494; revg. 3 
 
 Daly, 89; pp. 360 (frauds, stat. of), 633 
 
 (principal and agent). 
 Dunham, Coddington v. 
 V. Sage, 7 Lans. 419 ; revd. 7 Lans. 451, 
 
 but affd. 52 N. Y. 229 ; p. 439 (lim. of 
 
 actions). 
 DuNLAP V. Hawkins, 59 N. Y. 342; p. 358 
 
 (fraudt. conveyance). 
 
 , Marcy v. 
 
 , Lathrop y. 
 
 , Waedrop v. 
 
 Dunning, In matter of, 60 Barb. 377; p. 
 
 519 (N. Y. city). 
 V. Ocean Natl. Bank op N. Y., 6 
 
 Lans. 296; pp. 20 (action), 441 (lim. of 
 ♦ actions), 718 (trusts). 
 DuNScoMB, Groesbeck v. 
 DuNTZY V. Van Buren, 5 Hun, 648; p. 308 
 
 (evidence). 
 DupuYu. Seymour, 64 Barb. 156; pp. 259 
 
 (domicil), 297 (evidence), 742 (will). 
 V. WuRTS, 47 How. 225 ; 1 Hun, 119 ; 
 
 p. 202 (costs). 
 V. WuBTz, 58 JV. Y. 556; p. 259 (dom- 
 icil), 742 (will). 
 
TABLE OF CASES. 
 
 797 
 
 DuKAND, Chambers v. 
 
 V. CuETis , 57 iV. F. 7 ; pp. 429 (landlord 
 
 and tenant), 536 (partnership). 
 V. DuEAND, 2 Sweeny, 315 ; pp. 283 
 
 (evid.), 452 (mar. & div.), 616 (practice.) 
 DoEANT, Rogers v. 
 DuKKHEiM, Cameron v. 
 Dtjekin v. Teot, City of, 61 Barb. 437 ; p. 
 
 501 (negligence). 
 DtTELAND, Gray v. 
 Durst v. Bueton, 47 N. Y. 167 ; affg. 2 
 
 Lans. 137. See Digest, vol. iv. 
 Dtjeyea, Ames v. 
 V. Mayor, etc. of N. Y. city, 2 Hun, 
 
 293 ; pp. 513, 521 (N. Y. city). 
 
 , Union Dime Savings Inst. ». 
 
 DusENBUEY, Howard v. 
 
 u. HoYT, 45 How. 147 ; affd. 14 Abb. 
 
 N. S. 132 ; 36 N. Y. Supr. 94 ; but revd. 
 
 in part, 53 N. Y. 521; pp. 88 (bank- 
 ruptcy), 549 (pleading). 
 V. HtTLBEET, 59 N. Y. 541; p. 472 
 
 (mortgage). 
 V. Lehmnier, 46 How. 417 ; p. 550 
 
 (pleading). 
 
 , Kandall v. 
 
 DusTAN V. McAndeew, 44 N. Y. 72 ; affg. 
 
 VSfiosw. 130. See Digest, vols, i and iii- 
 D'Uttassey, Faber v. 
 Dutch v. Harrison, 37 N. Y. Supr. 306 ; 
 
 pp. 161, 178 (contract), 323 (evidence). 
 d.Mead, 36 N. Y. Supr. 427; affd. 59 N. 
 
 Y. 620; pp. 161 (contract), 292 (evidence). 
 
 DuTCHEE V. Importers & Tr. Nat. Bank, 
 
 59 N. Y. 5; pp. 87 (bankruptcy), 394 
 
 (insolvent corporations). 
 V. Porter, 63 Barb. 15 ; pp. 54 (ap- 
 peal), 165 (contract), 254 (defense), 285 
 
 (evidence). 
 
 , People ex rel. Creegan v. 
 
 Dutchess & Col. R. R. Co., People ex rel. 
 
 Green v. 
 Dutchess & Col. R. R. Co. v. Mabbett, 
 
 58 -N. Y. 397 ; p. 161 (contract). 
 Dutchess Company v. Harding, 49 N. Y. 
 
 321 ; pp. 293 (evidence), 663 (sale). 
 Dutchess Co. Mutual Ins. Co. v. Hach- 
 
 field, 47 How. 330 ; 1 Hun, 675 ; pp. 
 
 42 (appeal), 104 (bona fide purchaser), 
 
 106 (bonds), 296 (evidence). 
 Dutton v. Willnbr, 52 N. Y. 312 ; p. 634 
 
 (principal and agent). 
 DuvALL V. English E. Ij. Ch. op St. James, 
 
 53 N. Y. 500 ; affirming 35 N. Y. Supr. 
 
 505 ; p. 720 (trusts). 
 Dwight, Strong v. 
 
 DWINELLE, KiNCAID V. 
 
 DwYER V. DwYBR, 13 Abb. N. S. 269 ; pp. 
 
 261 (dower), 605 (practice). 
 
 , Springer t;. 
 
 Dye, Austin v. 
 
 Dyke v. Erie Railway Co., 45 iV. Y. 113; 
 
 p. 162 (contract). 
 Dykers v. Stuart, 34 N. Y. Supr. 189 ; p. 
 
 - 172 (contract). 
 Dymock, Rhodes v. 
 
 E. 
 
 Eager, In matter of, 12 Abb. N. S. 151 ; 
 
 46 JV". Y. 100 ; affirming 41 How. 107 ; 
 
 58 Barb. 557 ; 10 Abb. N. S. 229 ; pp. 
 
 509, 516, 519, 520 (N. Y. city). 
 
 , Beach v. 
 
 Eagle, Galley v. 
 Eaele, Doll v. 
 
 , People ex rel. Dupfin v. 
 
 , People ex rel. Hawley v. 
 
 , HOMAN V. 
 
 , People ex rel. Martin ». 
 
 , Muller v. 
 
 , People ex rel. Ford v. 
 
 , People ex rel. Stocb^wbll y, 
 
 , WiLKINS V. 
 
 Easterbrook v. Easterbrook, 64 Barb, 
 421 ; p. 569 (practice). 
 
 Easterly v. Barber, 4 'Hun, 426 ; p. 282 
 
 (evidence). 
 Easterly, Briggs v. 
 
 , Craw v. 
 
 Eastman, Moore v. 
 
 East N. y. & Jamaica R. R. Co. v. Elmore, 
 
 5 Hun,21i; pp. 17 (action), 187 (corp.) 
 V. , 53 N. Y. 624 ; p. 351 (former 
 
 adjudication). 
 Easton, Judson v. 
 
 , People ex rel. Dietz v. 
 
 V. PiCKERSGiLL, 55 N. Y. 310 ; pp. 417 
 
 (judicial sale), 479 (mortgage). 
 
 , PULLAR V. 
 
 East Riv. Ins. Co., Ogden v. 
 East Riv. Natl. Bank v. Gove, 57 N. Y. 
 597; pp. 41 (appeal), 541 (payment). 
 
798 
 
 TABLE OF CASES. 
 
 , komkbtze v. 
 
 East Riv. Savings Institution, Koderi- 
 
 GAS V. 
 
 Eastwood v. McNultt, 44 How. 392; p. 
 
 538 (partnership). 
 Eaton, Abbe v. 
 
 V. Alger, 47 N. Y. 345; pp. 19, 20 
 
 (action), 42 (appeal), 326 (evidence). 
 
 , Cotkendall v. 
 
 V. Del., Lack. & W. R. R. Co., 57N.Y. 
 
 382; p. 645(R. R. Go's.) 
 
 V. Erie Ry. Co., 51 N. Y. 544; pp. 
 
 591, 592 (practice). 
 
 , Partridge v. 
 
 Eazler, Baldwin v. 
 
 Ebbs, Farnsworth v. 
 
 Eberle v. Mehrbach, 55 N. Y. 682; p. 178 
 
 (cot) tracts). 
 EccLESiNE, Knickerbocker L. Ins. Co. v. 
 Eckert, Hallgarten v. 
 
 , HOWK V. 
 
 V. Long Island R. R. Co., 43 N. Y. 
 
 502 ; affirming 57 Barb. 555. See Digest, 
 
 vol. iv. 
 Edelmuth v. McGarren, 45 How. 191; 4 
 
 Daly, 467 ; p. 426 (land, and tenant). 
 Edgar, Norton v. 
 
 , Quackenboss v. 
 
 , Sheehan v. 
 
 , Swords v. 
 
 Edgewater, Village op, Glover v. 
 
 Ediok, Green v. 
 
 Edington v. Mutual Life Ins. Co., 5 Hun, 
 
 1 ; pp. 57 (appeal), 313 (evidence), 407 
 
 (insurance), 582 (pract.), 767 (witness). 
 Edsall t). Camden & Amboy R. R. Co., 50 
 
 JV. Y. 661; p. 116 (carrier). 
 Edwards, Burgett v. 
 V. CoLLSON, 5 Lans. 324 ; pp. 236 (dam- 
 ages), 330 (evidence). 
 — — , German Bank v. 
 
 , Maryland Coal Co. v. 
 
 , Perry v. 
 
 , Wilson v. 
 
 Egan, Foley v. 
 
 Egbert, Thompson v. 
 
 Egerton v. Fulton Nat. Bank, 43 How. 
 
 216; p. 84 (banks). 
 Eggart, Parshall v. 
 Egolbr v. People, 56 N. Y. 642 ; pp. 225, 
 
 230 (criminal law). 
 Ehle, Rice v. 
 Ehrenfield, Lederbb v. 
 EicKHOFF u. Mayor, etc. op New York, 
 
 49 How. 47; p. 509 (N. Y. city). 
 Eighmie, Booth v. - 
 
 — , Strong v. 
 Eighth Ave. R. R. Co., Whitaker v. 
 Eighth Nat. Bank of N. Y. v. Fitch, 49 
 N. Y. 539; p. 338 (execution). 
 
 ElMER, PhYFE v. 
 
 Eisenlepf, McNamaka v. 
 
 Eisner, Am. Corrugated Iron Co. v. 
 
 v. Keller, 3 Daly,iS5; p. 101 (bills, 
 
 etc.) 
 
 , Schbpeler v. 
 
 Eitel v. Bracken, 38 N. Y. Supr. 7 ; pp. 
 276 (estop.), 694 (supr. ct.), 725 (usury). 
 
 Elder, Mooney v. 
 
 Elderkin !). RowELL, 42 How. 330 ; pp. 
 160 (contract), 530 (partition). 
 
 Eldred, Lennox v. 
 
 Eldredge, Howland v. 
 
 V. McNulty, 45 How. 440 ; p. 66 (ap- 
 peal). 
 
 , People ex rel. Van Sickle v. 
 
 V. Reed, 2 Sweeny, 155; p. 723 (usury). 
 
 V. Strentz, 34 N. Y. Supr. 491; p. 
 
 359 (fraudulent conveyance). 
 
 V. Strenz, 39 N. Y. Supr. 295 ; pp. 64 
 
 (appeal), 202, 203 (costs). 
 Eleventh Avenue, Matter op Opening, 
 
 49 How. 208 ; pp. 242 (dedication), 518 
 
 (N. Y. city). 
 Elias v. Babcock, 7 Abi. N. S. 288 ; p. 53 
 
 (appeal). 
 
 , Mulligan v. 
 
 Ellenwood v. Fults, 63 Barb. 321; pp. 
 
 166 (contract), 233 (damages), 254 (de- 
 fences), 300 (evidence), 367 (guaranty). 
 Ellice, Potter v. 
 Elliott v. Bidwell, 51 N. Y. 644 ; p. 661 
 
 (sale). 
 
 , Brown v. 
 
 , Wood, 45 N. Y. 71 ; aflg. 53 Barb. 
 
 285 ; p. 475 (mortgage). 
 
 V. , 5 Hun, 594 ; p. 196 (costs). 
 
 Ellis v. Albany City Fire Ins. Co., 4 
 
 Lans. 433 ; p. 395 (insurance). 
 V. Albany City Fire Ins Co., 50 N. 
 
 Y. 402 ; p. 396 (insui-ance). 
 
 w. Andrews, 56 N. Y. 83; p. 356 
 
 (fraud). 
 
 , Barhydt v. 
 
 , Board op Sups, of Richmond Co. k. 
 
 , V. Village op Lowville, 7 Lanx. 
 
 434 ; p. 486 (mun. corp.) 
 Ellison, Kjesulder «. 
 Ellsworth, Marsh u. 
 Elmendokp, Bellows v. 
 
 V. LocKwooD, 4 Lans. 393 ; afEd. 57 
 
 N. Y. 322 ; p. 260 (dower). 
 
TABLE OF CASES. 
 
 799 
 
 Elmer, Sloanbw. 
 
 , Whitney v. 
 
 Elmiea, City of, Diveky v. 
 
 , Nat. Bank of Chemung v. 
 
 , Thurston v. 
 
 Elmira', Jeff. & Can. R. R. Co., Benja- 
 min V. 
 
 Elmiea Nobles Manufacturing Co., De 
 Witt v. 
 
 Elmore, Bassell v. 
 
 , De Graw v. 
 
 , East N. Y. & Jamaica R. R. Co. v. 
 
 V. Jacques, 2 Hun, 130; revd. 60 N. 
 
 Y. 610 i pp. 291 (evidence), 755 (wit- 
 ness). 
 
 V. Sands, 54 N. Y. 512; p. 644 (R. R. 
 
 Co.) 
 
 Elsas, Van Der Minden v. 
 
 Elsworth, In re, 53 N. Y. 647 ; p. 515 (N. 
 Y. city). 
 
 Elsworth v. Caldwell, 40 N. Y. 680 ; p. 
 335 (execution). 
 
 Elsworth, Heermans v. 
 
 V. MuLDOON, 46 How. 246 ; 15 .456. N: 
 
 S. 440 ; pp. 290 (evid.), 840 (exec.) 
 
 Elw anger v. Fish, 60 N. Y. 651 ; p. 46 (ap- 
 peal). 
 
 , Hutter tl. 
 
 Elwbll, Atkins n. 
 
 — — , Beatson v. 
 
 , Brown v. 
 
 V. Johnson, 3 Hun. 558 ; p. 548 (pldg.) 
 
 , Randall v. 
 
 u. RoBBiNS, 43flbio. 108; p. 199 (costs). 
 
 Elwood, Darbee b. 
 
 V. Gardner, 10 Abb. N. S. 238 ; 45 
 
 N. Y. 349 ; pp. 544 (pleading) 611, 617 
 (practice). 
 
 , Johnson v. 
 
 V. N. Y. Cjbntral & Hud. Riv. R. R. 
 
 Co., 4 Hun, 808 ; p. 497 (negligence). 
 
 I'. Western Union Telegraph Co., 
 
 45 N. Y. 549 ; pp. 704 (Telegraph Co.), 
 757 (witness). 
 
 Emberson v. Dean, 46 How. 236 ; pp. 109 
 (broker), 505 (new trial). 
 
 Embury, Excelsior Petroleum Co. v. 
 
 Emerich, Bach v. 
 
 Emerson v. Bleakley, 41 How. 511; 5 Abb. 
 N. S. 350 ; See Digest vols. i. and iii. 
 
 , Fish v. 
 
 V. Parsons, 46 N. Y. 560 ; afig. 2 
 
 Sweeny, 447 ; pp. 292, 319 (evidence). 
 
 Emerson v. Spicer, 46 N. Y. 594 ; affirming 
 55 Barb. 428 ; 38 How. 114. See Di- 
 gest, vol. iv. 
 
 Emmons v. Barnes, 55 N. Y. 643 ; affirming 
 
 4 Daly, 14; p. 723 (usury). 
 , Hall v. 
 
 V. Wheeler, 3 Hun, 545; pp.597 (prac- 
 tice) , 673 (ships, etc.) 
 Empire Ins. Co., Pierce v. 
 Empire State Life Ins. Co. v. Beckwith, 
 
 5 Hun, 122; p. 175 (contract). 
 Empire Transportation Co., Bishop v. 
 Enfield Manupact'ing Co., Redmond v. 
 Engh v. Greenbaum, 2 Hun, 136 ; p. 629 
 
 principal and agent). 
 English v. Brennan, 60 iV^. Y. 609; pp. 245 
 
 (deed), 524 (nuisance). 
 V. Del. & Hudson Canal Co., 4 Hun, 
 
 683; pp. 306, 309 (evid.), 647 (R. R. Co.) 
 
 , Hotchkiss v. 
 
 , Simpson v. 
 
 , Slqcum v. 
 
 V. Steele, 1 Hun, 716; p. 292 (evid.) 
 
 , Winston ti. 
 
 English Ev. Luth. Ch. of St. James, 
 
 DUVALL V. 
 
 Eno, Gates v. 
 
 Ensign, Dart v. 
 
 Equitable Life Assurance Society or 
 
 U. S., Barry u. 
 - — , Harris v. 
 Ericcson, Daby v. 
 Erickson w. QuiNN, 15 Abb. N. S. 166; 50 
 
 N. Y. 697; p. 210 (creds. bill.) 
 V. , 47 N. Y. 410; pp. 47 (appeal), 
 
 440 (limitation of action). 
 V. , 3 Hun, 549 ; pp. 278 (estoppel), 
 
 281 (evidence). 
 Erie County Savings Bank v. Roop, 48 
 
 N. Y. 292; pp. 280 (estop.), 478 (mort.) 
 Erie Railway Co., Arnot v. 
 
 , Chapman v. 
 
 , Crist v. 
 
 , Dyke v. 
 
 , Eaton v. 
 
 , France v. 
 
 , Gibson v. 
 
 , Gorton v. 
 
 V. Gould, 14 Abb. N. S. 279 ; p. 626 
 
 (practice). 
 
 , huenermund v. 
 
 , Keeley v. 
 
 , Lyons v. 
 
 , Moore v. 
 
 , Morrison v. 
 
 , Morse v. 
 
 , Parker v. 
 
 V. Ramsey, 10 Abb. N. S. 109; p. 196 
 
 (costs). 
 
800 
 
 TABLE OF CASES. 
 
 _„. , 45 N. Y. 637; pp.34 (appeal), 
 
 390 (injunction), 621 (practice). 
 Steigek v. 
 Steistwbg v. 
 Stoneman v. 
 , Thompson v. 
 Tkuax v. 
 
 V. Vanderbilt, 5 Hun, 123 ; pp. 465 
 
 (money had, &c.), 719 (trusts). 
 
 , Walker v. 
 
 , Wentz v. 
 
 , Westfall v. 
 
 , Whitwokth v. 
 
 , Wiggins v. 
 
 Erving, Campbell v. 
 Eewin, Hall v. 
 
 V. LoPER, 43 iV; Y. 521; pp. 342, 343 
 
 (executors and administrators). 
 
 ESTEKBEOOK, GiLLOTT V. 
 
 EsTEs V. Burns, 35 N. Y. Supr. 1; p. 192 
 (corporation). 
 
 Eten v. Luysteb, 37 iV^. Y. Supr. 486; affd. 
 60 N. Y. 252; pp. 16 (action), 333 (evid.), 
 430 (landlord and tenant), 544 (plead.), 
 693 (sum. proc.) 
 
 -^ V. , 60 N. Y. 252; pp. 241 (dam- 
 ages), 430 (landlord and tenant). 
 
 euell, schindleb v. 
 
 European Petroleum Co., Lindslet v. 
 
 Ev. Lutheran St. John's Orphans' Home 
 op Buffalo v. Buffalo Hydraulic 
 Ass'n., 4 Hun, 419; p. 338 (execution). 
 
 Evans, Campbell v. 
 
 V. Columbian Ins. Co., 44 N. Y. 146; 
 
 p. 411 (insurance). 
 
 , FisK Pavement AND Flagging Co. v. 
 
 V. Holmes, 46 How. 515; p. 616 (prac.) 
 
 u. Kalbfleisch, 36 N. Y. Supr. 450; 
 
 pp. 564 (pleading), 601 (practice). 
 
 V. People, 49 N. Y. 86; p. 213 (crim. 1.) 
 
 V. Post, 5 Hun, 338; p. 333 (evidence). 
 
 V. U. S. Life Lsrs. Co., 3 Hun, 587; p. 
 
 409 (insurance). 
 U.Williams, 60 Barb. 346; pp. 423 
 
 (just, court), 552 (pleading). 
 Evening Mail Association, Butler v. 
 
 , Samuels v. 
 
 Everett w. Everett, 48 JV. Y. 218; p. 716 
 
 (trust). 
 V. Parks, 62 Barh. 9 ; pp. 55 (appeal), 
 
 292 (evidence), 661 (sale). 
 Evergreens, In Matter of the, 47 N. Y. 
 
 216; p. 683 (statutes). 
 EvERS V. People, 3 Hun, 716; pp. 217, 230 
 
 (criminal law). 
 Everts v. Everts, 62 Barh. 577; pp. 345 
 
 (exrs. and adm.), 697 (surrogate). 
 Evertsbn v. Natl. Bank of Newport, 4 
 
 Hun, 692; p. 101 (bills and notes). 
 Excelsior Fire Ins. Co. v. Koyal Ins, Co. 
 
 op Liverpool, 7 Lans. 138 ; pp. 396, 
 
 397 (insurance), 586 (practice). 
 V. , 55 N. Y. 343 ; pp. 43 (appeal), 
 
 396, 397, 403 (ins.), 691 (subrogation). 
 Excelsior Life Ins. Co., Patrick v. 
 Excelsior Petroleum Co. v. Embury, 4 
 
 Hun, 648 ; p. 191 (corporation). 
 
 V. Lacey, 3 Hun, 111; p. 603 (practice). 
 
 Excelsior Savings Bank v. Campbell, 48 
 
 How. 347; 2 Hun, 375; p. 558 (pleading). 
 Exchange Bank of Lansingburgh, Mg- 
 
 CONIHE V. 
 
 Exchange Fire Ins. Co. , Bodine v. 
 Eyre, Coleman v. 
 
 R 
 
 Fabbri v. Kalbfleisch, 52 N.Y. 28 ; a%. 2 
 
 Sweeny, 252; pp. 49 (appeal), 164 (contr.), 
 
 323 (evidence). 
 
 , Kalbfleisch v. 
 
 V. Mercantile Mut. Ins. Co., 6 Lans. 
 
 446; 64 Barh. 85; pp. 61 (appeal), 323 
 
 (evidence), 410 (insurance). 
 V. Phcenix Ins. Co., 55 N. Y. 129; pp. 
 
 317 (evidence), 410 (insurance). 
 Fabbr v. D'Utasset, 11 Ahh. N. S. 399; 
 
 p. 558 (pleading). 
 Fagan, Malcolm v. 
 , Trolan v. 
 
 Faggin, Dolan ». 
 
 Fairbanks, Canfibld v. 
 
 V. Motherwell, 41 How. 274; 60 Barb. 
 
 406; pp. 377, 379 (husband and wife). 
 Fairchild v. Fairchild, 5 Hun, 407; pp. 
 
 73 (assign.), 534 (partner.), 715 (trust). 
 V. Liverpool & L. F. and L. Ins. Co., 
 
 51 N. Y. 65 ; afE g. 48 Barh. 420. See 
 
 Digest, vol. ii. 
 Fairfax v. New York Cent., etc. R. R. 
 
 Co., 37 N.Y. Supr. 516; pp. 125 (car.), 
 
 281 (evidence). 
 Fairly, Harper v. 
 
TABLE OF CASES. 
 
 801 
 
 Fake, Warren v. 
 
 Falconer, Kelly v. 
 
 Falkbnan v. Fargo, ii How. 325; 35 N.Y. 
 Supr. 332; p. 116 (carrier). 
 
 Fall Brook Coal Co., Kellt v. 
 
 V. Lynch, 47 How. 520 ; pp. 142 (consti- 
 tutional law), 573 (practice). 
 
 Fallon v. Brooklyn City, etc. R. R. Co., 
 56 N. Y. 652; p. 38 (appeal). 
 
 V. Mayor, etc. New York, 4 Hun, 
 
 583; p. 511 (New York city). 
 
 Fancher, First National Bank of 
 Sandy Hill v. 
 
 , People v. 
 
 , People ex rel. Eldredge v. 
 
 , People ex rel. Phelps v. 
 
 Fant, Ocean Nat. Bank of New York v. 
 
 Fargo b. Arthur, 43 How. 193; pp. 7 (ac- 
 tions), 656 (reward). 
 
 , Falkenan v. 
 
 , Gorham Manufacturing Co. v. 
 
 , SOHER V. 
 
 , Thompson v. 
 
 , Westcott v. 
 
 Faris v. Peck, 10 Abb. N. S. 55; 2 Sweeny, 
 
 689 ; pp. 614, 617 (practice). 
 Farley, DeForest v. 
 
 V. McCoNNELL, 7 Lam. 428 ; pp. 281 
 
 (evidence), 341, 343 (exrs. and adm.) 
 
 V. , 52 N. Y. 630; p. 341 (exrs. 
 
 and adm.) 
 
 , Van Saun v. 
 
 Farmer v. Robbins, 47 How. 415 ; pp. 616, 
 
 (practice), 734 (waiver). 
 Farmers Bank of Faybtteville v. Hale, 
 
 59 N. Y. 53; reversing 15 Abb. N. S. 
 
 276; pp. 683, 684 (statutes), 723 (usury). 
 Farmers and Citizens National Bank v. 
 
 NoxoN, 45 N. Y. 762; pp. 98 (bills and 
 
 notes), 296 (evidence). 
 Farmers Joint Stock Ins. Co.,Dohi*». 
 
 , Owen v. 
 
 r. Underwood v. 
 
 , Van Allen v. 
 
 Farmers and Mechs. National Bank, 
 
 Booth v. 
 
 V. Crane,. 15 Abb. N. S. 434; p. 336 
 
 (execution). 
 
 , Mechanics and Traders Bank v. 
 
 V. Sprague, 52 iV. Y. 605 ; pp. 324 
 
 (evidence), 614 (practice). 
 
 V. , 2 Hun, 522 ; pp. 254 (defense). 
 
 Farnam v. Feeley, 56 N. Y. 451 ; pp. 347 
 
 (false imp.), 444 (mal. pros.) 
 Farnsworth v. Ebbs, 2 Hun, 438 ; p. 756 
 
 witness). " 
 
 51 
 
 , Martin ». 
 
 Farr, Adams v. 
 
 Farrell v. Corbett, 4 Hun, 128 ; p. 174 
 
 (contract). 
 Farrington v. Bundy, 5 Hun, 617 ; p. 247 
 
 (deed). 
 Fash, Nicoll v. 
 Fassin v. Hubbard, 61 Barb. 548; p. 290 
 
 (evidence). ^ 
 V. , 55 N. F.465; pp. 96, 101 (bills 
 
 and notes), 288 (evidence). 
 Father Matthew U. B. Soc, Cartan v. 
 Fauerbach, Weinberger v. 
 Faucett v. Nichols, 2 Hun, 521; p. 306 
 
 (evidence). 
 Favill u. Roberts, 50 N. Y. 222 ; affirming 
 
 3 Lans. 141. See Digest, vol. iv. 
 Fawcett v. Vary, 59 N. Y. 597 ; pp. 32, 
 
 (amend.), 36 (appeal). 
 Fay, Burbank v. 
 Fearing v. Irwin, 4 Daly, 385 ; affirmed 55 
 
 N. Y. 486; pp. 145, 149 (constl. law), 
 
 245 (deed), 691 (subm. of controversy). 
 Feb, Wallace v. 
 Feeley, Fahnam v. 
 Feibel v. Obersky, 13 Abb. N. S. 402, n.; 
 
 p. 159 (contract). 
 Fellows v. Heermans, 4 Lans. 230 ; p. 717 
 
 (trusts). 
 V. , 13 ^66. JV.S.l; pp. 37 (appeal), 
 
 457 (maxims), 621, 622, 624 (practice). 
 V. MuLLER, 48 How. 82 ; 38 N. Y. Supr. 
 
 137; p: 561 (pleading). 
 Felt, In matter of, 11 Abb. N. S. 203; pp. 
 
 269 (elections), 447 (mandamus). 
 Felt, O'Doughbrty v. 
 Felter, Cooper v. 
 Feltman I). Gulf Brewery, 42 How. 488; 
 
 pp. 81 (bailment), 182 (conversion). 
 Felton, Smith v. 
 Fbnner v. Buffalo and State Line R. R. 
 
 Co., 44 N. Y. 505; reversing 46 Barb. 
 
 103; p. 119 (carrier). 
 Fbnton v. Robinson, 4 Hun, 252 ; pp. 100 
 
 (bills and notes), 590 (practice). 
 
 , Staples v. 
 
 Ferguson, Armstrong v. 
 , Kelly v. 
 
 , LiNDSLEY V. 
 
 V. Tweedy, 43 N. Y. 543 ; p. 231 
 
 (curtesy). 
 Fernandez v. Great Western Ins. Co., 
 
 48 N. Y. 571 ; reversing 3 Bob. 457 ; p. 
 
 411 (insurance). 
 Ferren v. O'Hara, 62 Barb. 517 ; p. 362 
 
 (frauds, statute of) . 
 
802 
 
 TABLE OF CASES. 
 
 Fekris v. Aspinwall, 10 Abb. N. S. 137; p. 
 37 (appeal). 
 
 V. Fbrbis, 56 N. Y. 614 ; p. 37 (appl.) 
 
 V. KiLMEK, 48 N. Y. 300 ; reversing 47 
 
 Barb. 411 ; pp. 282 (evidence), 630 (prin- 
 cipal and agent). 
 
 , ROBBINS V. 
 
 Febky v. Stephens, 5 Hv,n, 109 ; p. 365 
 (gift). 
 
 Fethbrly v. Burke, 54 N. Y. 646 ; p. 303 
 (evidence). 
 
 Fethebs, Mowers v. 
 
 Fettbetch v. McKay, 11 Abb. N. S. 453 ; 
 47 N. Y. 426 ; p. 558 (pleading). 
 
 Fey v. Smith, 3 Daly, 386 ; pp. 596 (prac- 
 tice), 663 (sale). 
 
 FiBBL t. Livingston, 64 Barb. 179 ; p. 116 
 (carrier). 
 
 Fiedler v. Darrin, 59 Barb. 651 ; pp. 470 
 (mortgage), 723 (usury). 
 
 V. , 50 N. Y. 437 ; reversing 59 
 
 Barb. 651 ; pp. 470 (mortgage), 722,723 
 (usury). 
 
 Field v. Cutler, 4 Lans. 195; p. 637 (prin- 
 cipal and surety). 
 
 V. Leavitt, 37 N. Y. Supr. 215 ; pp. 
 
 255 (defense), 567 (pledge). 
 
 „. , 37 J^. Y. Supr. 537 ; pp. 54 
 
 (appeal), 380 (husband and wife). 
 
 , Leffler v. 
 
 , Magaw v. 
 
 V. Munson, 47 N. Y. 221 ; pp. 42 (ap- 
 peal), 817 (evidence). 
 
 V. Parker, 4 Hun, 342 ; pp. 424 (jus- 
 tice court), 527 (office). 
 
 V. Stewart, 41 How. 95 ; 2 Sweeny, 
 
 193 ; 8 Abb. N. S. 193 ; p. 51 (appeal). 
 See Digest, vol. iv. 
 
 V. Van Cott, 15 Abb. N. S. 349 ; pp. 
 
 25 (action), 32 (amendment), 252 (de- 
 fense), 274 (estoppel), 547 (pleading). 
 
 Fielding, Waugh v. 
 
 Fields v. Fowler, 2 Hun, 400 ; p. 21 (ac- 
 tion). 
 
 , People v. 
 
 , Tyng v. 
 
 FiELMANN V. Brunner, 2 Hun, 354 ; p. 620 
 (practice). 
 
 FiGUEBA, ALBBO v. 
 
 Filer v. New York Cent. R. R. Co., 49 
 N. Y. 42; pp. 238 (damages), 325 (evi- 
 dence), 583 (practice). 
 
 V. , 49 N. Y. 47 ; pp. 381 (husband 
 
 and wife), 502 (negligence), 593 (prac.) 
 
 V. , 59 N. Y. 351 ; p. 500 (negli- 
 gence). 
 
 FiLKiNS V. Baker, 6 Lans. 516 ; pp. 293, 
 
 "325 (evidence), 585 (practice). 
 Filley v. Gilman, 34 N. Y. Supr. 339 ; pp. 
 
 93 (bills and notes), 628 (prin. and agt.) 
 Finch v. Parker, 49 N. Y. 1; pp. 43 (ap- 
 peal), 468 (money paid), 680 (specific 
 
 performance). 
 
 , Wagener v. 
 
 FiNCKE V. FiNCKB, 53 N. Y. 528 ; p. 745 
 
 (will). 
 Fingar, Younghanse v. 
 Fink v. Albany and Susq. R. R. Co., 4 
 
 Lans. 147 ; pp. 238 (damages), 646 (R. 
 
 R. Co.) 
 V. Allen, 36 N. Y. Supr. 350; pp. 477 
 
 (mortgage), 628 (principal and agent). 
 V. JusTH, 14 Abb. N. S. 107 ; pp. 556, 
 
 561 (pleading). 
 Finn, Goodale v. 
 Finnegan, Boyd v. 
 V. Caraheb, 61 Barb. 252 ; afid. 47 N. 
 
 Y. 493; pp. 266 (ejectment), 278 (estop.) 
 FiNNiN V. Malloy, 33 N. Y. Supr. 382 ; pp. 
 
 337 (execution), 613 (practice). 
 Fire Commissioners v. Green, 49 How. 1 ; 
 
 pp. 447 (mandamus), 512 (N. Y. city). 
 Fireman's Fund Ins. Co., Jones v. 
 
 , Williams v. 
 
 FiRMENiCH V. BovEE, 1 Hun, 532; pp. 78 
 
 (attorney), 671 (set off.) 
 First National Bank of Angelica v. 
 
 Hall, 44 N. Y. 395; pp. 92, 100 (bills 
 
 and notes). 
 First National Bank of Ballston Spa 
 
 V. Prest., etc. Ins. Co. of N. America, 
 
 5 Lam. 203 ; affirmed 50 N. Y. 45 ; 
 
 p. 403 (insurance). 
 First National Bank of Canandaigua 
 
 V. Whitney, 4 Lans. 34 ; pp. 93 (bills 
 
 and notes), 537 (partnership). 
 FiRsiT National Bank of Chenango, 
 
 Hintermistkr v. 
 First National Bank of Cincinnati v. 
 
 Kelly, 57 N. Y. 34 ;pp. 47 (appeal), 91 
 
 (bill of lading). 
 First National Bank of Cortland v. 
 
 Green, 43 N. Y. 298 ; pp. 296 (evidence), 
 
 583 (practice). 
 First National Bank of Elmira, Colb- 
 
 MANU. 
 
 First National Bank of Jersey City v. 
 
 Leach, 52 N. Y. 350 ; p. 540 (payment). 
 First National Bank of Kingston, Van 
 
 Leuvan ». 
 First National Bank of Lyons v. Ocean 
 
 National Bank, 60 N. ¥.. 278; revers- 
 
TABLE OF CASES. 
 
 803 
 
 ing 48 How. 148; pp. 81 (bailment), 315, 
 
 331 (evidence), 587 (practice). 
 
 First Nat'nal Bakk op Mobile, March v. 
 
 FiKST National Bank of Nbw York v. 
 
 Morris, 1 Hun, 680 ; pp. 724, 725 (us'ry.) 
 
 First National Bank of Plattsburgh v. 
 Bush, 47 How. 78; p. 203 (costs). 
 
 First National Bank of Portland v. 
 Schuyler, 39 N. Y. Supr. 440; pp. 94, 
 98 (bills and notes), 302 (evidence). 
 
 First National Bank of Sandy Hill v. 
 Fancheh, 48 N. Y. 524 ; affli-ming 52 
 Barh. 138; p. 699 (taxes). 
 
 First National Bank of Troy v. Cooper, 
 47 How. 108 ; p. 90 (bankruptcy). 
 
 First National Bank of Utica v. Bal- 
 Lou, 49 N. Y. 155 ; p. 442 (lim. of act'ns.) 
 
 First National Bank of Whitehall v. 
 Lamb, 50 N. Y. 95 ; reversing 57 Barb. 
 429 ; p. 85 (banks, etc.) 
 
 First Society of M. E. Church v. Brown- 
 ell, 5 Hun, 464; pp. 29 (adverse pos- 
 session), 651 (religious corporation). 
 
 First Universalist Society, Brett v. 
 
 Fischer, Sherwood v. 
 
 Fish v. Clark, 49 N. Y. 122 ; afSrming 2 
 Lans. 176. See Digest, vol. iv. 
 
 !). Cottenet, 44 N. Y. 538; pp. 396 
 
 (insurance), 630 (principal and agent). 
 
 V. Davis, 62 Barb. 122; pp. 302 (evi- 
 dence), 596 (practice). 
 
 , Elwanger v. 
 
 V. Emerson, 44 N. Y. 376 ; p. 424 (jus- 
 tice court). 
 
 , Flynn v. 
 
 , Pardee v. 
 
 Fisher v. Abeel, 44 How. 432 ; pp. 256 (de- 
 murrage), 317 (evidence). 
 
 , City op Rochester, 6 Lans. 225 ; p. 
 
 657 (Kochester). 
 
 V. Hepburn, 48 N. Y. 41 ; pp. 16, 23 
 
 (action), 35, 48 (appeal), 202 (costs), 418 
 (jurisdiction), 609 (practice). 
 
 V. HuBBELL, 7 Lans. 481 ; 65 Barb. 74 ; 
 
 pp. 20, 26 (actn.), 434 (legacy), 753 (will). 
 
 V. , 1 Hun, 610.; p. 754 (will). 
 
 V. LunNG, 33 N. Y. Supr. 337 ; pp. 154 
 
 (constitutionallaw), 421 (jurisdiction). 
 
 -. — V. Mayor, etc. op N. Y., &J N.Y. 344; 
 revg. 4 Lans. 451 ; p. 521 (N. Y. city). 
 
 w.— ^, 3 Hun, 648; pp. 515 (New 
 
 York city), 557 (pleadings). 
 
 , Murray v. 
 
 V. New York Cent'l. and Hudson 
 
 Riv. R.R. Co., 46 N. Y. 644; pp. 542 
 (penal action), 644 (R. R. Co.) 
 
 , Roberts ». 
 
 , Spyer v. 
 
 ■ , Van Ness v. 
 
 V. World Mut. Life Ins. Co. , 47 
 
 How. 451 ; 15 Abb. N. S. 363 ; p. 188 
 
 (corporation). 
 PisK u. Albany & Susq. R. R. Co., 41 How. 
 
 365; pp. 53 (appeal), 574 (practice). 
 
 V. FiBK, 60 N. Y. 631 ; p. 46 (appeal.) 
 
 , Gray v. 
 
 , JOSLYN V. 
 
 , Lathers v. 
 
 , People ex rel. Clapp v. 
 
 , Speyeks v. 
 
 V. Union Pac. R. R. Co., 10 Abb. N. 
 
 S. 457; p. 654 (removal to U. S. court). 
 
 , Wood v. 
 
 Fiske v. Bailey, 51 JST. Y. 150; p. 376 (hus- 
 band and wife). 
 
 , People ex rel. McDonnell v. 
 
 FisK Pavement and Flag Co. v. Evans, 
 
 37 N. Y. Supr. 482 ; affd. 60iVr. F.640; 
 
 pp. 55(appl.),312 (evid.), 504 (new trial). 
 Fitch v. American Pop. Life Ins.' Co., 59 
 
 N. Y. 557; p. 408 (insurance). 
 , Eighth National Bank of New 
 
 York v. 
 V. Fitch, 35 N. Y. Supr. 302 ; p. 544 
 
 (pleading). 
 
 , Hart v. 
 
 V. Hassler, 54 N. Y. 677; p. 579 
 
 (practice). 
 
 , Knowlton v. 
 
 V. Russell, 48ivr. Y. 672; p. 44 (app'l.) 
 
 Fitzgerald v. Belden, 49 How. 225 ; p. 
 
 617 (practice). 
 
 , Graham v. 
 
 , Henley v. 
 
 V. Topping, 48 N. Y. 438; pp. 287, 330 
 
 (evidence). 
 FiTZHUGH V. Sackett, 50 N. Y. 699; p. 7 
 
 (action). 
 FiTZPATRicK V. Boylan, 57 N. Y. 433; pp. 
 
 459 (mechanics' lien), 687 (statutes). 
 Fitzsimmons v. Baxter, 3 Daly, 81; pp. 
 
 451 (marine court), 676 (ships, etc.) 
 
 , Frisbbe v. 
 
 Flagg, People ex rel. McLean v. 
 
 Flake v. Van Wagenen, 54 N. Y. 25; p. 
 
 50 (appeal). 
 Flanders v. Odell, 2 Hun, 664; p. 602 
 
 (practice). 
 Flanagan, People v. 
 V. People, 52 N. Y. 467; p. 217 (crim- 
 inal law). 
 Fleet, Woodgatb v. 
 
804 
 
 TABLE OF CASES. 
 
 Flint and P. M. R. Co., Clakk v. 
 Fletcher v. Updike, 3 Hun, 350 ; p. 376 
 
 (husband and wife). 
 Flkwellino v. Brandow, 4 Daly, 333 ; p. 
 
 259 (district court). 
 Flike v. Bost. and Albany R. R. Co., 53 
 
 N. Y. 549; p. 455 (master and servant). 
 Flint v. Craig, 59 Barb. 319; pp. 94 (bills 
 
 and notes), 212 (criminal law), 236 
 
 (damages), 250 (defense). 
 Flood v. Mitchell, 4 Hun, 813; p. 292 
 
 (evidence). 
 Florence v. Hopkins, 46 N. Y. 182 ; p. 
 
 530 (partition). 
 
 , People v. 
 
 Florence Sewing Mack. Co., Hayden ». 
 Florida R. R. Co., Carrington v. 
 
 , V'ose v. 
 
 Flour City National Bank, Galusha v. 
 Flower v. Lance, 59 N. Y. 603; p. 468 
 
 (money paid). 
 
 , Stone v. 
 
 Flushing and N. Side R. R. Co., Roach v. 
 Flynn v. Bishop, 5 Hun, 284; p. 318 (evid.) 
 
 V. Fish, 7 Lans. 117; p. 537 (partn.) 
 
 V. Hatton, 43 How. 383; 4 Daly, 552 ; 
 
 pp. 428 (land, and tenant), 498 (negl.) 
 , New York Guarian & Indemnity 
 
 Co. t>. 
 
 , People ex rel. Hogan v. 
 
 FoGERTY, Hatch v. 
 
 Foley, Avery v. 
 
 V. Egan, 13 Ahh. N. S. 361 n. ; p. 369 
 
 (guardian and ward). 
 
 , Palmer v. 
 
 FoLMSBEE, People v. 
 
 FoLSOM, In matter of, 56 N. Y. 60; p. 516 
 
 (New York city). 
 FoLSOM V. Van Wagner, 14 Abb. JV. S. 
 
 44 ; afEd. 7 Lans. 309 ; pp. 203 (costs), 
 
 578 (practice). 
 Fonda v. Armour, 49 How. 72 ; pp. 694 
 
 (supr. court), 754 (witness). 
 V. Sage, 48 N. Y. 773 ; a.Sg. 46 Barb. 
 
 109. See Digest, vols, i., ii. and iii. 
 Foot v. Mttha. Life Ins. Co., 4 Dalp, 285 ; 
 
 p. 407 (insurance). 
 V. Bentley, 44 N. Y. 166 ; pp. 300, 
 
 322 (evidence), 665 (sale). 
 V. Bronson, 4 Lans. 47 ; pp. 27 (ac- 
 tions), 261 (drainage), 386 (injunction). 
 V. DiLLAYB, 65 Barb. 521 ; pp. 340 (ex- 
 ecution), 608 (practice). 
 
 V. Marsh, 51 N. Y. 288 ; p. 662 (sale.) 
 
 V. Stiles, 57 N. Y. 399; pp. 372 (high- 
 ways), 415 (judge), 526 (office, etc) 
 
 V. Webb, 59 Barb. 38 ; pp. 168, 179 
 
 (contract), 360 (frauds, stat. of), 681 
 (spec, perform.) 
 
 Foote v. Bryant, 47 N. Y. 544 ; pp. 381 
 (husb. andwife), 715 (trusts). 
 
 V. MiLLBiEB, 46 How. 38 ; p. 444 (ma- 
 licious pros.) 
 
 OVERING V. 
 
 V. People, 56 N. Y. 321 ; pp. 214, 230 
 
 (crim. law). 
 Ford, In matter op, 6 Lans. 92; pp.111, 
 
 113 (Brooklyn), 486, 487 (mun. corp.), 
 
 568 (powers); 
 V. Belmont, 35 N. Y. Supr. 135 ; pp. 
 
 248 (deeds), 258 (determ. claims). 
 V. Brooklyn Gas Light Co., 3 Hun, 
 
 621 ; p. 365 (gas company). . 
 V. Ford, 41 How. 169 ; 10 Abb. N. S. 
 
 74 ; pp. 156 (contempt), 414 (jail liber- 
 ties), 454 (mar. and div.) 
 V. JoNBS, 62 Barb. 484 ; p. 303 (evid.) 
 
 , KiNNE V. ^ 
 
 V. Mayor, etc. New York, 4 Hun, 
 
 587; p. 511 (N.Y. city). 
 
 FoRDHAM V. Smith, 44 How. 472 ; p. 46 
 
 (appeal) . 
 
 V. , 46 N. Y. 683 ; p. 757 (witness). 
 
 FoRDRED u. Seaman's Savings Bank, 10 
 
 Abb. N. S. 425 ; pp. 74 (assignm.), 261 
 
 (draft), 342 (exrs. and adm.) 
 Forehand v. Collins, 1 Hun, 316 ; p. 573 
 
 (practice). 
 Forman v. Smith, 7 Lans. 443 ; pp. 739, 
 
 740 (will). 
 Forrester, Meehan v. 
 Forsyth, Harrison v. 
 Fokt v. McCully, 59 Barb. 87 ; p. 670 
 
 (setoff). 
 Fort Stanwix Bank v. Leggett, 51 N. 
 
 Y. 552 ; p. 251 (defence). 
 Forty-Second and Grand St. Ferry 
 
 Co. V. Guntzer, 36 N. Y. Su^r. 567 ; 
 
 p. 196 (costs). 
 
 , Ihl v. 
 
 , Platt v. 
 
 Forty-Second St., etc. R. R. Co., Kel- 
 
 LINGER V. 
 
 , Unger v. 
 
 , wobster v. 
 
 Forward, Knight v. 
 
 Foster's Case, 13 ^66. N. S. 372, n. ; pp. 
 218, 226 (criminal law). 
 
 Foster v. Coe, 4 Lans. 53 ; pp. 555 (plead- 
 ing), 716 (trust). 
 
 V. Conger, 42 How. 176 ; 61 Barb. 145; 
 
 p. 382 (huBb. and wife). 
 
TABLE OF CASES. 
 
 805 
 
 V. Foster, 5 Hun, 557 ; p. 37fi (husb. 
 
 and wife). 
 
 , Harloe v. 
 
 0. Nbwbrough, 58 N. Y. 481 ; pp. 
 
 300, 305, 318 (evidence). 
 V. People, 50 N. Y. 598 ; pp. 213, 219 
 
 (criminal law). 
 o. , 3 Hun, 6 ; 49 How. 69 ; p. 221 
 
 (criminal law). 
 V. TowNSHEND, 12 ^66. N. S. 469 ; p. 
 
 648 (receiver). 
 V. Van Reed, 5 Hun, 321 ; pp. 396, 404 
 
 (insurance). 
 
 V. Van Wyck, 41 How. 493 ; p. 527 
 
 (office), 698 (taxes). 
 
 FocKTH Nat. Bank, Mtsa Nat. Bank v. 
 , Allb;n v. 
 
 . , DOD V. 
 
 , Messenger v. 
 
 V. Snow, 3 Daly, 167 ; p. 100 (bills and 
 
 notes). 
 
 FowLE V. Covert, 49 Hou>. 120 ; p. 206 
 (common pleas). 
 
 FowxER, In matter of, 53 N. Y. 60 ; pp. 
 113 (Brooklyn), 269 (eminent domain). 
 
 FowxER, Fields v. 
 
 , Hadley v. 
 
 , Henry v. 
 
 , Leonard v. 
 
 V. Lowenstein, 7 Lans. 167 ; p. 79 (at- 
 torney). 
 
 V. MiLLlMAN, 2' Hun, 408 ; p. 66 (appl.) 
 
 V. Mutual Life Ins. Co., iLans. 202; 
 
 p. 405 (insurance). 
 
 , People ex rel. Grissler v. 
 
 , People ex rel. Supervisors op West- 
 chester Co. V. 
 
 V. Trull, 1 Hun, 409; p. 380 (husband 
 
 and wife). 
 
 , Wilmerdings ». 
 
 Fox, In matter of, 63 Barb. 157 ; affirmed 
 52 N. Y. 530 ; p. 744 (wiU). 
 
 Fox, Allen ». 
 
 V. Clark, 61 Barb. 216, n.; p. 756 (wit- 
 ness). 
 
 , Curtis v. 
 
 , DORN V. 
 
 V. Fox, 5 Hun, 53 ; p. 343 (executors 
 
 and administrators). 
 
 V. Mayer, 54 N. Y. 125; pp. 358 
 
 (fraud't. conv.), 529 (parties), 602 (prac- 
 tice) . 
 
 V. Prudbn, 3 Daly, 187 ; pp. 81 (bail- 
 ment), 236 (damages). 
 — ^— , Slater v. 
 , Smith v. 
 
 Fralich v. People, 65 Barb. 48 ; pp. 217, 
 222, 228, 230 (criminal law). 
 
 Fralopp v. New York Cent, and Hud. 
 Riv. R. R. Co., 48 How. 535 ; pp. 125 
 (carrier), 587 (practice). 
 
 France v. Erie Railway Co., 2 Hun, 513; 
 pp. 383 (Indians), 646 (R. R. Co.) 
 
 , Howard v. 
 
 Francis v. Schoelkopf, 53 JV. Y. 152 ; pp. 
 241 (damages), 281, 308 (evidence), 525 
 (nuisance). 
 
 Frank v. Benner, and Same v. Benninger, 
 
 « 3 Daly, 422 ; p. 206 (com. pleas). 
 
 -^ — V. Chemical National Bane, 37 N. 
 Y. Supr. 26 ; pp. 84 (banks), 294 (evid.) 
 
 Frankenstein v. Thomas, 4 Daly, 256 ; pp. 
 56 (appeal), 346 (factor). 
 
 FRAifKLiN, Atlantic National Bank v. 
 
 , People ex rel. Sayre v. 
 
 Frantz v. Ireland, 4 Lans. 278 ; pp. 286, 
 322 (evidence). 
 
 Fraser v. Freeman, 43 N. Y. 566 ; revers- 
 ing 56 Barb. 234 ; p. 457 (master and 
 servant). 
 
 V. Wyckopf, 2 Hun, 545 ; p. 109 
 
 (broker). 
 
 Frazee, Woodin v. 
 
 Frazer v. Kimler, 2 Hun, 514; p. 494 (neg- 
 ligence). 
 
 Frazier v. McClaskey, 60 N. Y. 337 ; p. 
 676 (slander). 
 
 — '—, McDonald v. 
 
 , Williams v. 
 
 Frazier's Metallic Life Boat Co., 
 Stainsby v. 
 
 Frecking v. Rolland, 53 N. Y. 422 ; re- 
 versing 33 N. Y. Supr. 499 ; pp. 58 (ap- 
 peal), 379 (husb. and wife), 549 (plead- 
 ing); 593 (practice). 
 
 Fredericks v. Taylor, 14 Abb. N. S. 77 ; 
 52 N. Y. 596 ; pp. 35 (appeal), 552 
 (pleading), 625 (practice). 
 
 Freel, Johnson v. 
 
 Freeman v. Auld, 44 N. Y. 50 ; reversing 
 37 Barb. 587; pp. 248 (deed), 273 (estop- 
 pel), 471 (mortgage). 
 
 V. Barber, Iflun, 433; pp. 24 (action), 
 
 381 (husb. and wife), 416 (judgment). 
 
 , Burling v. 
 
 , Fraser v. 
 
 V. Freeman, 43 N. Y. 34 ; p. 678 (spe- 
 cific performance). 
 
 Freeman, People ex rel. Add. and E. P. 
 Road Co. v. 
 
 , Sharpe v. 
 
 , Slocum v. 
 
806 
 
 TABLE OF CASES. 
 
 French, Bendetson v . 
 
 V. Donaldson, 57 N. Y. 496; affg. 5 
 
 5 Lans. 293; pp. 115 (canals), 325 (evid.), 
 490 (negligence), 590 (practice).- 
 
 , DOERIS V. 
 
 , Powers v. 
 
 Fkenche, Wheeler v. 
 
 Freund v. Importers & Traders' Nat. 
 
 Bank,3 iTim, 689; p. 136 (checks). 
 Frick v. White, 57 N. Y. 103 ; p. 670 (set-off). 
 Fried v. Royal Ins. Co., 50 N. Y. 243; p. 
 
 405 (insurance). 
 Friedman v. Dewes, 33 N. Y. Supr. 450; p. 
 
 727 (vendor and purchaser). 
 
 , Nefe v. 
 
 Frink, Harris v. 
 
 , Scott v. 
 
 V. Thompson, 4 Lans. 489; pp. 288 
 
 (evidence), 682 (stamps). 
 Frisbee v. Fitzsimmons, 3 Hun, 674 ; pp. 
 
 356 (fraud), 581 (practice). 
 Frost, Board of Commiss. of Pilots v. 
 
 , Newman v. 
 
 , Smith v. 
 
 , Stone v. 
 
 Froude v. Froude, 1 Hun, 76; p. 754 (wit.) 
 Fryer v. Rockefeller, 4 Hun, 800 ; p. 481 
 
 (mortgage). 
 FucHs, Rudolphy v. 
 FuDicKAR V. Guardian Mutual Life Ins. 
 
 Co., 45 How. 462; affd. 37 N. Y. Supr. 
 
 358; pp. 70 (arbit.), 295 (evidence). 
 
 FuiLAGER V. Revillb, 3 Him, 600; p. 174 
 
 (contract). 
 Fuller ». Conde, 47 N. Y. 89; p. 198 
 
 (costs). 
 
 V. Fuller, 5 Him, 595 ; p. 580 (prao.) 
 
 , Haile v. 
 
 V. RowE, 57 N. Y. 23 ; revg. 59 Barb. 
 
 344 ; pp. 534, 535 (partnership). 
 
 , White v. 
 
 Fullerton v. McGurdy, 4 Lans. 132 ; affd. 
 
 55 N. y. 637; pp. 529 (parties), 726 
 
 (vendor and purchaser). 
 V. Viall, 42 How. 294 ; pp. 314 (evid.), 
 
 358 (fraudt. conv.) 
 Fulton v. Whitney, 5 Hun, 16 ; pp. 697 
 
 (surrogate), 720 (trusts). 
 Fulton National Bane, Egbrton v. 
 Fulton Village v. Tucker, 3 Hun, 529 ; 
 
 p. 491 (negligence). 
 Fults, Ellenwood v. 
 Funk v. Brigaldi, 4 Daly, 359; pp. 318 
 
 (evidence), 349 (fixtures). 
 FuNKB V. Orient. Mutual Ins. Co., 38 N. 
 
 Y. 349 ; pp. 306, 310, 319 (evidence), 411 
 
 (insurance). 
 furgeson, duffuny v. 
 Furman, Conklin v. 
 V. Van SiSE, 56 N. Y. 435 ; pp. 528 
 
 (parent and child), 670 (seduction). 
 FuRNiss, In matter op, 4 Hun, 624 ; p. 518 
 
 (New York city). 
 Furnival, Newberry ». 
 
 G. 
 
 Gaffney v. Bigblow, 48 How. 475; p. 574 
 
 (practice). 
 -, V. People, 50 N. Y. 416 ; pp. 224, 230 
 
 (criminal law), 694 (supr. court). 
 
 , People v. 
 
 Gage, Christie o. 
 
 Gager v. Babcock, 48 N. Y. 154; pp. 468 
 
 (money paid), 675 (ships, etc.) 
 Gaillard, Boardman v. 
 Gale, Conroy v. 
 Gale v. Miller, 54 N. Y. 536; affirming 1 
 
 Lans. 451; U Barb. 420. See Digest, 
 
 vol. iv., 
 Galinger v. Galinger, 4 Lans. 473; 61 
 
 Barb. 31; pp. 51 (appeal), 329 (evid.), 
 
 454 (mar. and div.) 
 Gallagher, Herrick, v. 
 V. Nichols, 60 N. Y. 438 ; pp. 72 (as- 
 
 signment), 179 (contract), 277 (estop.), 
 361 (frauds, stat. of), 734 (waiver). 
 
 Gallant, Phillip v. 
 
 Gallation v. Smith, 48 How. 477; p. 195 
 
 Gallie v. Eagle, 65 Bari. 583; p. 531 (par- 
 tition). 
 
 Gallup v. Albany Railway, 7 Lans. 471 ; 
 pp. 430, 431 (landlord and tenant). 
 
 Gallup v.Babben, 3 Hun, 598 ; p. 57 (appl.) 
 
 V. Lederer, 1 Hun, 282; pp. Ill 
 
 (broker), 235 (damages), 302, 324 (evi- 
 dence), 669 (sale), 722 (usage). 
 
 , TiCE V. 
 
 Galt, Bensel v. 
 Galyin, King v. 
 
 V. Prentice, 45 N. Y. 162; pp. 14 (ac- 
 tion), 311 (evidence). 
 
TABLE OF CASES. 
 
 807 
 
 Galubha v. Flour Citt National Bane, 
 1 Hun, 573 ; pp. 391 (in]".), 569 (praot.) 
 
 Gamble v. Taylor, 43 How. 375 ; p. 576 
 (practice). 
 
 Gambling t;. Haight, 14 Ahb. N. S. 398 ; 
 pp. 562, 565 (pleading). 
 
 ». , 58 N. Y. 623; pp. 32 (amend- 
 ment), 36 (appeal). 
 
 V. , 59 iV. F. 354 ; pp. 16 (action), 
 
 461 (mechanic's lien). 
 
 Gannon, Gray ». 
 
 , Reed v. 
 
 Gantz, Osborn v. 
 
 Garcia, Bishop b. 
 
 , DiSBROW V. 
 
 Gardiner, Miner ». 
 
 , schaettlbr v. 
 
 , Watson v. 
 
 Gardner, In matter of, 41 Hoto. 255 ; p. 
 
 487 (municipal corporation). 
 Gardner, Algur v. 
 
 V. Bain, 5 Lans. 256; p. 348 (false imp.) 
 
 V. Bennett, 38 N. Y. Supr. 197; pp. 
 
 315 (evidence), 455 (master and servant). 
 Gardner, Dufp v. 
 
 , Elwood v. 
 
 , Harteau v. 
 
 , Ins. Co. of N. America v. 
 
 , People ex rel. Davis v. 
 
 Garfield v. Eire, 65 Barb. 464; pp. 62 
 
 (appl.), 301, 326 (evid.), 584, 596 (pract.) 
 Garlinghouse, Board of Excise of 
 
 Ont. Co. v. 
 
 Bonesteel v. 
 
 Garlock v. Clare, 3 Hun, 355; p. 62(app.) 
 
 , Crouse v. 
 
 Garner, Parsons v. 
 Garrett, Overacre v. 
 V. ScHEFFER, 47 N.Y. 656 ; p. 538 (part- 
 nership). 
 Garretson v. Seaman, 54 N. Y. 652; p. 381 
 
 (husband and wife). 
 Garrison, Burroughs v. 
 V. Marshall, ^ How. 193; pp. 422, 
 
 423 (justice court), 527 (officer, &c.) 
 Garth, Romain v. 
 Garvey, Harnett v. 
 V. Jarvis, 46 N. Y. 310 ; affirming 54 
 
 Barb. 179 ; p. 715 (trusts). 
 
 , WORMSBR ». 
 
 . Garvin, O' Toole ». 
 Gates v. Beecher, 60 N. Y. 518; pp. 95 
 (bills and notes), 256 (deposition). 
 
 , Chapman v. 
 
 1'. Eno, 4 Hun, 96 ; p. 94 (bills and notes). 
 
 , People v. 
 
 , People ex rel. Barbour b. 
 
 B. Whitcomb, 4 Hun, 137; p. 458 (me- 
 chanic's lien) . 
 Gauntley v. Wheeler, 4 Lans. 491; pp. 
 
 252 (defense), 615 (practice). 
 Gawtry b. Doane, 51 N. Y. 84; affirming 48 
 
 Barb. 148; pp. 96 (bills and notes), 290 
 
 (evidence), 585 (practice). 
 Gaylord, Wardb. 
 Gaylord Manuf. Co. b. Allen ; 53 N. Y. 
 
 515; p. 663 (sale). 
 Gearty «. Mayor, etc. of New Yore, 49 
 
 How. 33 ; p. 511 (New York city). 
 Gedney b. Purdy, 47 N. Y. 676; pp. 39 
 
 (appeal), 573 (practice). 
 Geer b. Legg, 3 Hun, 353 ; p. 278 (estop.) 
 Geery 0. CocECROFT, 33 N. Y. Supr. 146 ; 
 
 pp. 535 (partnership), 660 (sale). 
 
 , ROCEWELL B. 
 
 Geis b. Loew, 15 Ahb. N. S. 94 ; 36 N. Y. 
 
 Supr. 190; p. 52 (appeal). 
 Gelpcke v. Qdentell, 59 Barb. 250; p. 434 
 
 (letter of credit). 
 Gelpecee, Anonymous b. 
 Genet, In matter of, 1 Hun, 292 ; pp. 227 
 
 (criminal law), 446 (mandamus). 
 V. BiNSSE, 3 Dal;/, 239 ; pp. 195 (costs), 
 
 344 (exrs. and adm.) 
 B. Davenport, 56 N. Y. 676 ; pp. 469, 
 
 474 (mortgage). 
 
 B. , 58 N. Y. 607; p. 195 (costs). 
 
 B. , 59 N. Y. 648; p. 40 (appeal). 
 
 B. , 60 N. Y. 194; p. 34 (appeal). 
 
 V. Lawyer, 61 Barb. 211; pp. 299 
 
 (evidence), 576 (pract.), 756 (witness). 
 
 , Mayor, etc. of New Yore v. 
 
 , People v. 
 
 Genin, Crane v. 
 
 , DOUPE B. 
 
 George v. Arthur, 2 Hun, 406; p. 475 
 
 (mortgage). 
 
 , Greaves v. 
 
 B. Jennings, 4 Hun, 66 ; pp. 58 (appeal), 
 
 436 (libel). 
 
 B. Tallman, 5 Lans. 392; pp. 467 
 
 (money paid), 728 (vendor and purch.) 
 
 Gere, Syr., Ph. & Oswego B. R. Co. b. 
 German Bane b. Edwards, 53 N. Y. 541 ; 
 
 p. 614 (practice). 
 Germania Bane of New Yore b. Distlbr, 
 
 4 Hun, 633 ; p. 319 (evidence). 
 Germania Fire Ins. Co., Alexander b. 
 
 , Hotchkiss b. 
 
 Germania Mechs. Asso., Gundlach v. 
 German U. Ev. Churc i or Buffalo, 
 
 People ex rel. Dilcher v. 
 
808 
 
 TABLE OF OASES. 
 
 Germond v. Home Ins. Co., 2 Hun, 540; p. 
 
 398 (insurance). 
 Gekwig v. Shettebly, 64 Barb. 620; aifd. 
 
 56 N. Y. 214, sub nom, Gerwig v. Sit- 
 
 terly; pp. 691 (subrogation), 724, 726 
 
 (usury). 
 Geston v. People, 4 Laiu. 487; p. 216 
 
 (criminal law). 
 Getty v. Binssb, 49 N. Y. 385; p. 414 
 
 (joint liability). 
 V. Devlin, 54 N. Y. 403 ; pp. 5 (action), 
 
 536 (partnership). 
 
 V. Spaulding, 1 Hun, 115 ; p. 33 
 
 (amendment). 
 
 V. , 58 N. Y. 636; pp. 36,37 (ap- 
 peal), 575 (practice). 
 
 Gibbons v. Dayton, 4 Hun, 451 ; p. 430 
 
 (land, and tenant). 
 GiBBs V. Bates, 43 N. Y. 192; p. 166 (cont.) 
 
 , Doyle v. 
 
 v: Van Buren, 48 N. Y. 661 ; p. 123 
 
 (carrier). 
 Gibson v. American Merchants Un. Ex. 
 
 Co., 1 Hun, 387 ; p. 122 (carrier). 
 
 u. Erie Railway Co., 5 Hun, 31 ; p. 
 
 455 (master and servant). 
 
 V. People, 5 Hun, 542 ; p. 215 (criminal 
 
 law). 
 V. Stetzer, 3 Hun, 539; pp. 57 (appeal), 
 
 603 (practice). 
 
 - V. ToBEY, 46 N. Y. 637; reversing 53 
 Barb. 191 ; pp. 284 (evidence), 540 (pay- 
 ment), 661 (sale). 
 
 V. Van Derzee, 47 How. 231; S. C, 
 
 14 Ahb N. S. Ill; pp. 255 (defense), 439 
 (lim. of action). 
 
 Gilbert v. Crawford, 46 How. 222; p. 419 
 (jurisdiction). 
 
 V. Knox, 52 N. Y. 125 ; p. 737 (will). 
 
 Gilbert, Marsh v. 
 
 , MUDGE V. 
 
 V. N. Y. Central & Hudson Kiv. E. 
 
 K. Co., 4 Hun, 378; p. 19 (action). 
 V. Priest, 14 Abb. N. S. 165 ; 65 Barb. 
 
 444; reversing 63 Barb. 339 ; pp. 419, 
 
 421 (jurisdiction). 
 V. Sage, 5 Lans. 287; aflarmed 57 N. Y. 
 
 639; pp. 164 (contract), 255 (defense), 
 
 294 (evidence), 584, 585 (practice). 
 Gilchrist v. Brooklyn Grocers' Manup. 
 
 Association, 59 N. Y. 495 ; p. 293 (evid.) 
 V. Gilchrist's Executors, 44 Horn. 
 
 317; p. 33 (amendment). 
 
 , murdock v. 
 
 Gile, Groat v. 
 
 Giles v. Austin, 46 How. 269; affirmed 38 
 
 N. Y. Supr. 215; pp. 271 (equity), 428 
 
 (landlord and tenant). 
 V , 34 N. Y. Supr. 171 ; p. 271 
 
 (equity). 
 
 V. , 34 iV. Y. Supr. 540; p. 60 (appl.) 
 
 , Perkins v. 
 
 V. Solomon, 10 Abb. N. S. 97, n.; p. 474 
 
 (mortgage). 
 V. Spaulding, 5 Hun, 458; p. 427 (land- 
 lord and tenant). 
 Gill, In matter or, 3 Hun, 20; p. 368 
 
 (guardian and ward). 
 
 , Barnes v. 
 
 , Hubd v. 
 
 V. People, 3 Hun, 187; affirmed 60 N. 
 
 Y. 643; pp. 215, 218, 229 (criminal law), 
 
 677 (special sessions).^ 
 Gillespie, Andrews v. ' 
 V. City of Newburgh, 54 N. Y. 468; 
 
 p. 590 (practice). 
 
 , Hamill v. 
 
 , Sanders v. 
 
 V. WiNBERG, 4 Daly, 318 ; pp. 15 (action), 
 
 688 (statutes). 
 V. Zittlosen, 60 N. Y. 449 ; p. 543 
 
 (pilots). 
 Gillett, Baird v. 
 
 V. Borden, 6 Lans. 219 ; pp. 171 (con- 
 tract), 576 (practice). 
 Gillet v. Roberts, 57 N. Y. 28; p. 182 
 
 (conversion). 
 Gillies, Patterson v. 
 
 , Sickles v. 
 
 , Taylor v. 
 
 Gillilan v. Spiiatt, 41 How. 27; 3 Daly, 
 
 440; overruling 8 ^66. iV^. S. 13; pp.353 
 
 (former adj.), 692, 693 (sum. proc.) 
 GiLLis, Ryckman i). 
 V. Space, 63 Barb. 177; pp. 139 (com. 
 
 schs.), 235 (dmgs.), 289, 298, 328 (evid.) 
 Gillott v. Esterbrooe, 48 JV. Y. 374; 
 
 affirming 47 Barb. 455. See Digest, 
 
 vols. ii. and iii. 
 GiLMAN, Bacon v. 
 
 , FiLLEY V. 
 
 V. Gilman, 3 Hun, 22; p. j88 (appeal). 
 
 — =- V. , 4 Hun, 68; p. 342 (executors 
 
 and administrators). 
 ~ V. Green Point Sugar Co., 4 Lan$. 482 ; 
 
 61 Barb. 9; p. 194 (corporation). < 
 
 V. Redlngton, 4 Hunt 640; p. 68 (appl.) 
 
 GiLMORB, Drake v. 
 
 , Laidlaw v. 
 
 , Orr v. 
 
 GiLMOUR V. Thompson, 49 How. 198; pp. 140 
 
 (composition), 465 (money paid). 
 
TABLE OF CASES. 
 
 809 
 
 Glacius v. Black, 50 N. Y. 145 ; pp. 164, 
 
 171 (contract). 
 
 V. , 4 Hun, 91 ; p. 462 (mech. lien). 
 
 Glbabell v. Thomson, 35 N. Y. Supr. 232; 
 
 pp. 116, 123 (carrier). 
 V. , 56 N. Y. 194; pp. 116, 123 
 
 (carrier), 457 (master and servant). 
 Gleason, Morss v. 
 Glegner, Seaman v. 
 Glen & Hall Manuf'g. Co. v. Hall, 6 
 
 Lans. 158; pp. 555 (pleading), 621 (prac- 
 tice), 712 (trade-mark). 
 Glen v, Hope Mutual Life Inb. Co., 56 
 
 N. Y. 379 ; p. 405 (insurance). 
 Glens Falls Ins. Co., Pitney v. 
 
 , Shoemaker v. 
 
 , Townsend v. 
 
 Glenville Woollen Co., Andrews v. 
 
 , O'Brien v. 
 
 , Orser v. 
 
 V. Ripley, 11 Abb. N. S. 87; p. 50 (app.) 
 
 V. , 43 N. Y. 206 ; p. 254 (defense). 
 
 Globe Mut. Life Ins. Co. v. Reals, 48 
 
 How. 502; p. 271 (equity). 
 Globe Woollen Co., Coughty v. 
 Gloucester, Whalen v. 
 Glover, Harbison v. 
 V. Village op Edgewater, 1 Hun, 
 
 486; pp. 700, 704 (taxes). 
 Gnant, Carey v. 
 Goddard, Coates v. 
 
 , Newman v. 
 
 GoDET, Stab Fibe Ins. Co. v. 
 Godfrey, Allen v. 
 
 , Latheopv. 
 
 , McGbaw v. 
 
 V. MosHEB, 3 Hun, 218; p. 413 (interest). 
 
 V. People, 5 Hun, 369; pp. 213, 216, 
 
 222 (criminal law). 
 V. Williamsbubgh City Fire Ins. 
 
 Co., 12 Abb. JSr S. 250; p. 600 (practice). 
 GoDiLLOT V. Hazard, 49 How. 5; pp. 388 
 
 (injunction), 711 (trad&>mark) . 
 Godwin, N. Y. and Boston R. R. Co. v. 
 GoELET V. McManus, 1 Hun, 306 ; affirmed 
 
 59 N. Y. 634; p. 473 (mortgage). 
 
 , People ex rel. Aldhouse v. 
 
 V. Spopfoed, 55 N. Y. 647; p. 608 
 
 (practice). 
 GoETCHEUS V. Matthewson, 5 Lans. 214; 
 
 pp. 15 (actions)i 686 (statutes). 
 goetzel, bostwick v. 
 Goetzman v. Connecticut Mutual Life 
 
 Ins. Co., 3 Hun, 515; p. 405 (insurance.) 
 Goff, People ex rel. Oswald v. 
 GoKEY, Curtis v. 
 
 Goldberg v. Dougherty, 39 N. Y. Supr. 
 
 189; pp. 23 (action), 253 (defense). 
 
 V. Utley, 60 N. F.427; p. 39 (appeal). 
 
 Goldsmith v. Jones, 43 How. 415; pp. 71 
 
 (arrest), 524, 525 (nuisance). 
 Goldstein, Bohm v. 
 Gomez, Hancock v. 
 
 V. Kamping, 4 Daly, TI\ pp. 275 (es- 
 toppel), 658 (sale). 
 
 Gonzales v. N. Y. and Harlem R. R. Co., 
 33 JV. Y. Supr. 57; p. 497 (negligence). 
 
 GooDALE V. Finn, 2 Hun, 151 ; p. 614 
 (practice). 
 
 GOODENOUGH V. SPENCEB, 46 How. 347 ; 15 
 Abb. N. S. 248; pp. 79 (attorney), 102 
 bona fide holder), 359 (fraud, c'veyance). 
 
 GooDKiND V. Strickland, 3 Daly, 420; p. 
 ' 339 (execution). 
 
 Goodman v. Stroheim, 36 N. Y. Supr. 216 ; 
 pp. 331 (evidence), 444 (mal. prosecut'n.) 
 
 Goodrich, Austin v. 
 
 V. Stevens, 5 Lans. 230; p. 317 (evid.) 
 
 V. Sweeney, 36 N. Y. Supr. 320; pp. 
 
 579 (practice), 668 (sale). 
 
 V. Thompson, 44 N. Y. 324 ; affirming 
 
 4 Rob. 75 ; pp. 118 (carrier), 629 (prin- 
 cipal and agent). 
 
 GooDRiDGE, Clarke v. 
 
 Goodwill, Helms v. 
 
 Goodwin D. Balt. and Ohio R. R. Co., 50 
 N. Y. 154; reversing 58 Barb. 195: p. 
 123 (carrier). 
 
 , Balt. & Ohio R. R. Co. v. 
 
 , Carpenter v. 
 
 V. Hirsch, 37 N. Y. Supr. 503 ; pp. 
 
 298, 312, 313 (evidence), 563 (pleading), 
 756 (witness). 
 
 , McGlone V, 
 
 Goodyear v. Vosburgh, 41 How. 421 ; p. 
 
 256 (deposition). 
 
 V. , 63 Barb. 154 ; p. 294 (evidence). 
 
 GopsiLL V. Decker, 4 Hun, 625; p. 40 (app.) 
 GoBDON V. BoppE, 55 N. Y. 665; p. 91 
 
 (bills and notes). 
 r. COBNES, 47 N. Y. 608 ; pp. 144, 152 
 
 (const, law). 
 
 , Havens v. 
 
 QpBHAM, In matter op Town of, 43 How. 
 
 263 ; p. 709 (towns). 
 GoRHAM Manuf. Co. V. Fargo, 45 How. 
 
 90; 35 N.Y. Supr. 434; p. 120 (carrier). 
 GoRHAM V. Trustees op Village of 
 
 CooPERSTOWN, 59 N. Y. 660 ; p. 485 
 
 (mun. corp.) 
 Gorton v. Erie Railway Co., 45 N. Y. 
 
 660 ; p. 496 (negligence). 
 
810 
 
 TABLE OF CASES. 
 
 Goss V. Mather, 46 N. Y. 689 ; pp. 13, 16 
 
 (action). 
 Gouge v. Roberts, 53 N. Y. 619 ; p. 310 
 
 (evidence). 
 Gould v. Bennett, 49 How. 57 ; 59 N. Y. 
 
 124 ; p. 599 (practice). 
 , Brink v. 
 
 V. CONWAT, 59 Barb. 355 ; p. 290 
 
 (evidence). 
 
 , Erie Railway Co. v. 
 
 V. Marsh, 1 Hun, 566 ; pp. 103 {bona 
 
 fide purchaser), 135 (chat mortg.) 
 
 , Ramset ». 
 
 , Siegelu. 
 
 V. Town op Oneonta, 3 Hun, 401 ; p. 
 
 468 (money paid). 
 
 , Tyler v. 
 
 GouRAUD v. Trust, 3 Hun, 627 ; p 713 
 
 (trade-mark). 
 GouRLEY, Hays ». 
 Gove, East Riveb Nat. Bank «. 
 
 w. Hammond, 48 Hmo. 385; p. 603 
 
 (practice). 
 
 II. Lawrence, 6 Lan». 89 ; pp. 40 (app.) 
 
 535 (partn.) 567 (pledge). 
 GrOWDY V. Poullain, 2 Hun, 218 ; pp. 51 
 
 (appeal), 565 (pleading). 
 GowER, People ex rel. Shelton i;. 
 Graber, Com. Warehouse Co. of New 
 
 York v. 
 Grace, Brevoort v. 
 Graff, United States v. 
 Graham, Donley b. 
 
 V. Fitzgerald, 4 Daly, 178 ; pp. 280 
 
 (estop,), 523 (notice). 
 
 V. Hoy, 38 N. Y. Supr. 506; pp. 24 (ac- 
 tion), 190 (corp.) 
 
 V. Linden, 50 N. Y. 547; pp. 34 (app.), 
 
 354 (former adj.), 471, 474 (mortg.) 
 
 , LUFT V. 
 
 V. People, 6 Lans. 149 ; p. 229 (criminal 
 
 law). 
 
 V. , 63 Barb. 468 : pp. 222, 229 
 
 (crim. law). 
 
 V. Read. 57 N. Y. 681 ; p. 607 (prao.) 
 
 , Rutherford v. 
 
 V. Selover, 59 Barb. 313 ; p. 442 (limi- 
 tation of action). 
 
 V. , 46 How. 107 ; pp. 46 (appeal) , 
 
 442 (lim. of act.), 633 (prin. and agt.) 
 
 , Town of Delhi v. 
 
 Grand Trunk Rt. Co., Condict v. 
 
 , Keeney w. 
 
 , Scott v. 
 
 Grant, Hieb v. 
 
 ■ , Hill v. 
 
 -, House v. 
 
 - V. Hubbell, 34 N. Y. Supr. 224 ; p. 53 
 
 p. 720 
 
 Grant v. Smith, 46 N. Y. 93 ; p. 636 (prin- 
 cipal and surety). 
 
 V. Taylor, 35 N. Y. Supr. 338; p. 437 
 
 (lien). 
 
 , Taylor v. 
 
 Graves v. Brinkerhoff, 4 Hun, 305 ; pp. 
 467 (money paid), 691 (subm. of cont.) 
 
 V. LovELL, 38 N. Y. Supr. 154; p. 725 
 
 (usury). 
 
 , Sands v. 
 
 V. Waite, 59 N. Y. 156; pp. 564 (plead- 
 ing), 581 (practice). 
 
 V. Waterman, 4 Hun, 687 ; 
 
 (trusts). 
 
 Gray v. Barton, 55 N. Y. 68 ; p. 365 
 (gift). 
 
 , Bellinger v. 
 
 , Bensel v. 
 
 V. City of Brooklyn, 10 Abb. N. S. 
 
 186 ; pp. 113 (Brooklyn), 148 (constitu- 
 tional law), 686 (statutes). 
 
 V. Dfeland, 51 N. Y. 424 ; affg. 50 
 
 Barb. 100 ; p. 670 (seduction). 
 
 .,. FiSK, 42 How. 135 ; 12 Abb. N. S. 
 
 213 ; 33 N. Y. Supr. 484 ; affirmed, 53 
 N. Y. 630 ; p. 604 practice). 
 
 V. Gannon, 4 Hun, 57 ; pp. 175 (con- 
 tract), 317 (evidence). 
 
 Gray, Heinmuller v. 
 
 V. New York and Virginia Steam- 
 ship Co., 3 Hun, 383 ; p. 189 (corp.) 
 
 , Reading v. 
 
 1!. Redfield, 4 Daly, 95 ; p. 621 (prao.) 
 
 V. Second Av. R. R. Co., 34 N. Y. 
 
 Supr, 519 ; p. 498 (negligence). 
 
 Great Western Ins. Co., Atkinson v. 
 
 , Carr v. 
 
 , Fernandez v. 
 
 , Pacific Mail Steamship Co. v. 
 
 , roelker v. 
 
 V. Thayer, 4 Lans. 459; 60 Barb. 638; 
 
 p. 97 (bills and notes). 
 
 Great Western Ry. Co., Root ». 
 
 Greaves v. George, 49 How. 79; p. 189 
 (corporation). 
 
 Greeley, Bliss v. 
 
 , Dadney v. 
 
 Greeley's Will, Matter of, 15 Abb. N. S. 
 393 ; p. 738 (will). 
 
 Green, Brown v. 
 
 , Carpenter v. 
 
 V. Disbrow, 56 N. Y. 334 ; reversing 
 
 7 Lans. 381 ; pp. 294, 303, 323 (evid.) 
 
TABLE OF CASES. 
 
 811 
 
 Green v. Disbrow, 7 Lans. 381; pp. 179 
 (contr.), 300 (evid.), 439 (lini.of action). 
 o. Edick, 56 N. Y. 613 ; p. 756 (wit- 
 ness). 
 
 , Fire Commissioners v. 
 
 ——, First Nat. Bank of Cortland v. 
 — - V. Green, 3 Daly, 358 ; pp. 54 (appeal), 
 453 (marriage and divorce). 
 
 V. Kennedy, 48 N. Y. 653; p. 348 
 
 (false imprisonment). 
 
 , Lawton v. 
 
 , Livingston v. 
 
 , Merrill v. 
 
 V. N. Y. Cent. R. R. Co., 12 .466. N. 
 
 8. 473 ; 4 Daly, 553 ; pp. 126 (carrier), 
 313 (evidence), 645 (R. R. Co.) 
 , People ex rel. Agnew v. 
 " Baglet v. 
 
 " Brown «. 
 
 " Byrnes v. 
 
 " Curry v. 
 
 " Doyle v. 
 
 " Miller v. 
 
 " O'Brien v. 
 
 " Odt water v. 
 
 " pomeroyw. 
 
 " PURSEN V. 
 
 " Ryan v. 
 
 " Tenth Nat. Bank v. 
 
 " • Tracy v. 
 
 V. Plank, 48 N. Y. 669; p. 325 (evid.) 
 
 V. Rice, 33 N. Y. Supr. 292 ; p. 584 
 
 (practice). 
 V. Skeel, 2 Hun, 485; pp. 91 (bills and 
 
 notes), 631 (prin. and agt.) 
 
 , Underwood v. 
 
 , Wait v. 
 
 Grebnbaum, Engh v. 
 
 , Hoover v. 
 
 Greene v. Deal, 4 Sun, 703; pp. 250 (deed), 
 
 472 (mortgage). 
 V. Mayor, etc. of New York, 60 N. Y. 
 
 303; revg. 1 Hun, 24 ; p; 510 (N. Y. city). 
 V. N. Y. Central & Hudson Rivbr^ 
 
 R. R. Co., 4 Hun, 378; p. 661 (sale). 
 
 V. Thomas, 4 Hun, 809; p. 232 (dam.) 
 
 Greenfield, In matter of.j 42 How. 469 ; 
 
 p. 86 (bankruptcy). 
 V. Mass. Mut. Life Ins, Co., 47 N. Y. 
 
 430; pp. 20 (act.), 331.(evid.), 409 (ins.), 
 
 552, 561, 564 (pleading), 594 (practice). 
 Greenman, Place v. 
 Greenough, Dillaye v. 
 Green Point Sugar Ca,' Gilman v. 
 Greentree v. Rosenstock, 34 N: Y. Supr. 
 
 505; p. 254 (defense). 
 
 35 
 
 34 
 
 Greenwood v. Brink, 1 Hun, 227; p. 533 
 
 (partnership). 
 Greer v. Tweed, 13 Abb. N. S. 427; pp. 163 
 
 (contract), 605 (practice). 
 Gregg, Cook v. 
 V. Howe, 37 N. Y. Supr. 420 ; pp. 55 
 
 (appeal), 576 (practice). 
 
 , Schermerhorn v. 
 
 Gregory, Bloodgood v. 
 
 V. Brooks, 1 Hun, 404; pp. 309 (evid.), 
 
 426 (land, and ten.), 534 (partner). 
 
 , Cary v. 
 
 V. Cryder, 10.466. N. S. 289; p. 
 
 (appeal), 604 (practice). 
 V. Gregory, 33 N. Y. Supr, 1 ; pp, 
 
 (another action), 621 (practice). 
 
 , Sherman v. 
 
 Greider, Lewis v. 
 
 GrENIER, KlAH V. 
 
 Grenell, Heath v. 
 
 Grey v. Grey, 47 N. Y. 552 ; revg. 2 Lans. 
 173 ; p. 284 (evidence). 
 
 Grierson v. Mason, 1 Hun, 113; affirmed, 
 60 N. Y. 394; pp. 320 (evid.), 554 (pldg.) 
 
 V. , 60 N. Y. 394 ; p. 320 (evid.) 
 
 Griffin, Corley v. 
 
 V. Griffin, 47 iV. Y. 134; p. 453 (mar- 
 riage and divorce). 
 
 , KiRKWOOD V. 
 
 , Owen v. 
 
 V. Todd, 48 How. 15 ; p. 559 (plead.) 
 
 Griffith, Hamel v. 
 
 Griggs v. Griggs, 56 N. Y. 504 ; pp. 22 
 
 (action), 413 (interest). 
 Grimes v. Hillenbrand, 4 Hun, 354 ; p. 100 
 
 (bills and notes). 
 Grimley, Daly v. 
 Grinnell v. Kirtland, 48 How. 17; pp. 13 
 
 (action), 242 (dedi.) 
 Grisler, Catlin v. 
 
 V. Dudley, 58 N. Y. 323; p. 480 
 
 (mortgage). 
 
 , Dudley v. 
 
 V. Stuyvesant, 1 Hun, 116; p. 2 
 
 (abate, and rev.) 
 
 Griswold, Arthur v. 
 
 , Bailey v. 
 
 V. Dexter, 62 Barb. 648 ; p. 598 (pract.) 
 
 , Dows V. 
 
 V. Griswold, 7 Lans. 72; pp. 3 (ace. and 
 
 sat.), 473 (mortgage). 
 Griswold v. Hodgman, 2 Hun, 97; p. 244 
 
 (deed). 
 
 V. Perry, 7 Lans. 98 ; p. 720 (trusts). 
 
 V. Sweet, 49 How. 171 ; pp. fil4, 617 
 
 (practice). 
 
812 
 
 TABLE OF CASES. 
 
 Gkoat v. GiLE, 51 N: y. 431 ; pp. 41 (ap.), 
 315, 323, 329 (evidence), 586 (practice), 
 662 (sale). 
 
 . „. Phillips, 3 Hun, 412 ; p. 25 (action). 
 
 . , Weik v. 
 
 Gboesbbeck v. Uuxscomb, 41 How. 302 ; 
 pp. 185 (Corp.), 529 (parties), 550, 559, 
 563 (pleading), 624 (prac), 652 (relig. 
 Corp.), 684 (statutes). 
 
 , HOTTGHTALING V. 
 
 Gboff V. Morehouse, 51 N. Y. 503 ; p. 475 
 
 (mortgage). 
 Gross, Langbeim v. 
 Grout v. Cooper, 5 Hun, 423 ; p. 560 
 
 (pleading). 
 Grove, In matter op, 64 Barb. 526; pp. 2 
 
 (abate and reT.), 149 (const, law). 
 Grover & Baker Sewing Machine Co. v. 
 
 Kimball, 64 Barh. 425 ; p. 573 (prac) 
 Grube I). ScHULTHEiB, 4 Doly, 207 ; affd. 57 
 
 N. Y. 669 ; pp. 175 (Contract), 604 (prac.) 
 Grymesu. Hone, 49 N. Y. 17; p. 366 (gift). 
 Guardian Life Ins. Co., Koelgers v. 
 
 , O'Reilly v. 
 
 Guardian Mut. Life Ins. Co., Fudicker v. 
 
 , Higbie v. 
 
 , O'Reilly v. 
 
 , WORDEN V. 
 
 Guardian Savings Inst'n. v. Bowling 
 Green Savings Bank, 65 Barb. 275; p. 
 647 (receiver). 
 
 Guernsey, Scott v. 
 
 Guest, Taylor v. 
 -GuiDET w. Mayor, etc. of City or New 
 
 York, 36 N. Y. Supr. 557 ; pp. 170 
 
 (contract), 510 (N. Y. city). 
 
 V. , 37 N. Y. Supr. 124 ; p. 60 (ap.) 
 
 Guild, Cutts v. 
 
 Guild Farm Oil Co., DbComeau v. 
 
 Guildford, Town of, v. Cooley, 58 N. Y. 
 
 116 ; pp. 15 (action), 554 (pleading). 
 
 , Cooley v. 
 
 GuiTEMAN V. Davis, 3 Daly, 120; p. 233 
 
 (damages). 
 Gulf Brewery, Feltman v. 
 GuLiCK, Bogert v. 
 GuNDLACH V. Gbrmania Mechs. Asso., 4 
 
 Hun, 339; 49 How. 190; p. 188 (corp.) 
 Gunnison, N. Y. & Canada R. R. Co. v. 
 Gunther, v. Colin, 3 Daly, 125; pp. 123 
 
 (carr.), 283 (damages). 
 Guntzer, Forty-Second and Grand St. 
 
 R. R. Co. i>. 
 GuRLEY, James v. 
 
 GuRNEY V. Atlantic & Gt. W. Ry. Co., 58 
 ■N. Y. 358; pp. 269 (employe), 647 (re- 
 ceiver), 666 (sale). 
 GuRNSBY V. Rogers, 47 N. Y. 233 ; p. 11 
 
 (actions), 471 (mortg.) 
 GusTON V. People, 61 Barh. 35; p. 216 
 
 (criminal law). 
 Gutchess v. Daniels, 49 N. Y. 605 ; revg. 58 
 
 Barb. 401 ; pp. 277 (estop.), 677 (set-off). 
 Guthrie, Urban v. 
 
 Gutta Percha & Rubber Manufactur- 
 ing Co. V. Benedict, 37 N. Y. Supr. 
 
 430 ; p. 413 (interest). 
 Gwynne, Davis v. 
 
 H. 
 
 Hackfield, Dutchess County Mut. Ins. 
 
 Co. V. 
 Hackett v. Belden, 10 ^i6. j\r. S. 123 ; 
 
 pp. 2 (abate, and rev.), 611 (practice). 
 
 „. , 47 N. Y. 624 ; p. 42 (appeal). 
 
 V. Lawrence, 40 How. 289 ; p. 2 
 
 (abate, and rev.) 
 Hackettstown Bank v. Rea, 6 Lam. 455 ; 
 
 64 Barb. 175 ; p. 724 (usury). 
 Hackfobd v. New York Cent, and Hud. 
 
 Riv. R. R. Co., 43 How. 222 ; 6 Lans. 
 
 381; 13 Abb. N. S. 18; pp. 298 (evi- 
 dence), 592 (practice). 
 
 „. , 53 N. Y. 654 ; p. 45 (appeal). 
 
 Haokley v. Draper, 60 N. Y. 88 ; affg. 2 
 
 Hun, 523 ; pp. 10 (action) * 64 (appeal), 
 
 648 (receiver). 
 
 Hackney v. Vrooman, 62 Barb. 650 ; pp. 
 
 283, 313 (evid.), 365 (gift), 463 (merger). 
 Hadden v. Dimmick, 13 Abb. N. S. 135 ; 48 
 
 N. Y. 661 ; reversing 31 How. 196 ; pp. 
 
 168, 173 (contract), 734 (waiver). 
 — — V. Houghtalino, 1 Hun, 318; pp. 309, 
 
 326 (evidence). 
 
 , Turner v. 
 
 Haden ». Buddensick, 4 Hun, 649 ; p. 469 
 
 (mortgage). 
 V , 49 Hew. 241 ; pp. 459 (mechs. 
 
 lien), 707 (time). 
 Haddow v. Lundy, 59 N. Y. 320 ; pp. 288 
 
 (evidence), 345 (ex'rs. and adm.) 
 Hadfield, Cushman v. 
 Hadley i>. Ayres, 12 Abb. N. S. 240; affd. 
 
 46 N. Y. 691 ; p. 413 (interest). 
 
TABLE OF CASES. 
 
 813 
 
 V. Barton, 47 How. 481 ; p. 426 (land- 
 lord and tenant). 
 
 V. BoKHM, 1 Hun, 304; pp. 51 (appeal), 
 
 562 (pleading). 
 
 V. FowLEK, 12 Abb. N. S. 244 ; p. 572 
 
 (practice). 
 
 Hagen v. Bo WERT National Bank, 6 
 Lans. 490 ; 64 Barb. 197 ; p. 84 (banks). 
 
 Hagerman, Pinckney v. 
 
 Haggerty k. People, 6 Lans. 332 ; pp. 151 
 (const, law), 227 (criminal law). 
 
 V. , 6 Lans. 347; p. 227 (crim. law). 
 
 V. , 53 N. Y. 476 ; pp. 151 (const. 
 
 law), 227 (criminal law). 
 
 Hague K. O'Conner, 41 How. 287; 1 Sweeny, 
 472 ; p. 108 (broker). See also. Digest, 
 vol. iv. 
 
 Haight, Gambling v. 
 
 , Lament v. 
 
 V. Moore, 36 N. Y. Supr. 294 ; p. 607 
 
 (practice). 
 
 V. , 37 m. Y. Supr. 161 ; p. 77 (at- 
 torney). 
 
 V. New York Cent. R. R. Co., 7 Lans, 
 
 11 ; p. 496 (negligence). 
 
 V. New York Elevated Railway Co., 
 
 49 How. 20 ; p. 621 (practice). 
 
 , Warren v. 
 
 V. Ty^iLLiAMS, 46 N. Y. 683 ; p. 42 (ap- 
 peal). 
 
 Haile w. Fuller, 2 Hun, 519 ; p. 676 (slan- 
 der). 
 
 Haines, People ex rel. Williams v. 
 
 Hale v. Clauson, 60 iV. Y. 339; pp. 37 (ap- 
 peal), 482 (mortgage). 
 
 — ■-, Farnsworth Bank of Fayette- 
 
 VTLLE V. 
 
 V. Hayes, 54 N. Y. 389; p. 567 (pledge). 
 
 11. Umaha National Bank, 47 How. 
 
 201 ; 33 N. Y. Supr. 40 ; pp. 280 (estop- 
 pel), 427 (land, and ten.), 437 (lien). 
 
 V. , 49 N. Y. 626; pp. 427 (land- 
 lord and tenant), 545, 560 (pleading). 
 
 V. , 39 N. Y. Supr. 207 ; pp. 14 
 
 (action), 103 {bona fide holder), 280 (es- 
 toppel), 427 (land, and ten.), 437 (lien). 
 
 V. Patton, 60 N. Y. 233 ; p. 706 (ten- 
 der). 
 
 Haley, Kurkel v. 
 
 Hall v. Augsbury, 46 N. Y. 622 ; p. 263 
 (easement). 
 
 , BiGLER V. 
 
 V. Bishop, 3 Daly, 109 ; p. 77 (attor- 
 ney). 
 
 — — , Brown v, 
 , Collins v. 
 
 -, Col VERT V. 
 
 , Dempsby v. 
 
 V. Emmons, 2 Sweeny, 396; pp. 51 (ap- 
 peal), 626 (practice). 
 
 V. , llAbb.N. S.435; p.e26(pract.) 
 
 «. Erwin, 57 N. Y. 643; modifying 60 
 
 Barh. 349 ; pp. 556 (frauds), 472, 477 
 (mortgage). 
 
 , First Nat. Bank of Angelica v. 
 
 , Glenn and Hall Manufg. Co. v. 
 
 V. Insurance Co. op N. America, 58 
 
 N. Y. 292; p. 398 (insurance). 
 
 , Judge v. 
 
 u. Lauderdale, 46 N. Y. 70; p. 633 
 
 (principal and agent). 
 
 , Mahon v. 
 
 V. MiNTURN, 55 N. Y. 676; p. 252 
 
 (defense). 
 
 , MULLER V. 
 
 V. Hunger, 5 Lans. 100 ; p. 347 (false 
 
 imprisonment). 
 
 V. Olney, 65 Barb. 27 ; pp. 303 (evi- 
 dence), 424 (justice's court). 
 
 V. Bobbins, 4 Lans. 463; 61 Barb. 33 ; 
 
 pp. 22 (action), 89 (bankruptcy), 438 
 (limit, of action). 
 
 ». Ruggleb, 56 N. Y. 424 ; p. 443 
 
 (lottery); 
 
 V. SiGEL, 13 Abb. N. S. 178; 7 Lans. 
 
 206; pp. 193 (corporation), 686 (stats.) 
 
 , TUBBS V. 
 
 V. Warner, 60 Barb. 198; p. 81 (bail.) 
 
 Halladay, Congregation Shaar Hash 
 
 MOIN V. 
 
 Hallahan v. Herbert, 11 ^166. N. S. 326; 
 
 4 Daly, 209; affirmed 57 N. Y. 409 ; pp. 
 
 458, 459, 460, 461, 462 (mechs. lien). 
 Hallgarten v. Eckert, 1 Hun, 117; p. 
 
 625 (practice). 
 Hallock v. Randall, 3 Hun, 616 ; p. 584 
 
 (practice). 
 
 , Satterly v. 
 
 Halpin, Doyle v. 
 Halsey, Carpenter ». 
 
 , Clark v. 
 
 , People ex rel. Stephens v. 
 
 V. Reid, 4 Hun, 777; pp. 383 (infant), 
 
 440 (limit, of actions). 
 Halstead v. Cockcropt, 49 How. 342; p. 
 
 575 (practice). 
 
 V. Halstead, 55 N. Y. 442; p. 531 
 
 (partition). 
 
 V. SwARTZ, 46 How. 289 ; pp. 133 
 
 (chattel mortgage), 239 (damages). 
 
 Halterline w. Rice, 62 Barb. 593; p. 662 
 (sale). 
 
814 
 
 TABLE OF CASES. 
 
 Ham v. Mayok, etc. New York, 37 N. Y. 
 Supr. 458; pp. 484 (municipal corpora- 
 tion), 507 (New York city). 
 
 V. Van Orden, 4 Hun, 709 ; afcmed 
 
 5 Hun, 654; p. 659 (sale). 
 
 Hamann, Lenihan v. 
 
 Hamburgh and American Packet Co., 
 
 HiRSCHSOHN V. 
 
 , Klein v. 
 
 Hamkll v. Griffith, 49 How. 305; pp. 264 
 (easement), 386 (injunction). 
 
 Hammersley v. Mayor, etc New York, 
 56 N. Y. 533; pp. 150 (constitutional 
 law), 275 (estoppel), 521 (New York 
 city). 
 
 Hamill, Brookman v. 
 
 , Connolly, v. 
 
 V. Gillespie, 48 N. Y. 556 ; p. 13 
 
 (action). 
 
 Hamilton v. Douglass, 46 N. Y. 218 ; p. 
 382 (husband and wife). 
 
 , James v. 
 
 , Moore v. 
 
 V. New York Central R. K. Co., 51 
 
 N. Y. 101; pp. 316 (evidence), 595 
 (practice), 643 (R. R. Company). 
 
 , Shutb v. 
 
 V. Third Ave. R. R. Co. 53 N. Y. 25; 
 
 reversing 44 flow. 294; 13 Ahb. N. S. 
 318; 35 iV. Y. Supr. 118; pp. 127 
 (carrier), 232 (damages), 504 (new trial.) 
 
 V. Third Ave. R. R. Co., 48 How. 50 ; 
 
 p. 503 (new trial). 
 
 V. Van Rensselaer, 43 N. Y. 244; p. 
 
 166 (contract). 
 
 Hamlin v. Dingman, 41 How. 132 ; pp. 139 
 (common schools), 320 (evidence), 526 
 (officer). 
 
 V. , 5 Lans. 61; reversing 41 How. 
 
 132; pp. 183 (conversion), 702 (taxes). 
 
 Hammett v. Barnard, 1 Hun, 198; p. 589 
 (practice). 
 
 , Central Bank of Brooklyn v. 
 
 V. LiNNBMAN, 48 N. Y. 399 ; pp. 282, 
 
 328 (evidence), 661 (sale). 
 
 Hammond v. Cockle, 2 Hun, 495; p. 546 
 (pleading). . 
 
 , Day v. 
 
 V. Dean, 4 Hun, 131 ; p 78 (attorney), 
 
 , Gove v. 
 
 V. Pennock, 5 Lans. 358 ; p. 173 (con- 
 tract). 
 
 , Seneca Nation of Indians v. 
 
 , Thorp v. 
 
 V. Varian, 54 iV. Y. 898; pp. 302 (evi- 
 dence), 755 (witnegg). 
 
 Hampton, Clark v. 
 
 Hancock v. Gomez, 50 N. Y. 668 ; p. 254 
 
 (defense). 
 Hand v. Williamsburg City Fire Ins. 
 
 Co., 57 N. Y. 41 ; pp. .403, 404 (ins.) 
 Handley v. Quick, 47 How^ 233 ; p. 570 
 
 (practice). 
 Hanford, Raymond v. 
 
 V. Shapter, 4 Daly, 243; p. 108 (b'ker.) 
 
 Hankins v. Baker, 46 N. Y. 666 ; pp. 364 
 (frauds, stat. of), 632 (principal and 
 
 agent), 662 (sale). 
 Hann v. Van Voorhis, 15 Abb. N. S. 79; 
 
 pp. 209 (cred. bill), 389 (injunction.) 
 
 V. , 5 Hun, 425 ; p. 209 (cred. bill.) 
 
 Hannahs v. Hannahs, 5 Hun, 644 ; p. 68 
 
 (appeal). 
 Hannas, Morgan v. 
 Hannegan, Tuttle v. 
 Hannum, Dalkymple v. 
 Hanover Fire Ins. Co. v. Tomlinson, 37 
 
 N. Y. Supr. 221 ; p. 52 (appeal). 
 p. , 58 N. Y. 215, 651; pp. 35, 38 
 
 (appeal). 
 
 V. , 3 Hun, 630; p. 12 (action). 
 
 Hansee v. DeWitt, 63 Barb. 53 ; p. 380 
 
 (husband and wife). 
 Hansen, Bakstow v. 
 Hanson, Roe v. ■ 
 
 Happy v. Moshek, 48 N. Y. 313 ; reversing 
 
 47 Barb. 501 ; pp. 151 (constitutional 
 
 law), 313 (evidence), 674 (ships, etc.) 
 Harbison v. Von Volkenburgh, 5 Hun, 
 
 454; p. 572 (practice). 
 Hard, Alexanders. 
 Harden v. Boycb, 59 Barb. 425; pp; 96 
 
 (bills and notes), 735 (war). 
 Hardenbergh, Boeklen v. 
 Hardenbrook, Quinn ». 
 Hardenburgh v. Lakin, 47 N. Y. 109; pp, 
 
 243 (deed), 290 (evidence). 
 , Trustees Reformed Dutch Ch. of 
 
 Rochester v. 
 Harder, Baker v. 
 Harding, Dutchess Company v. 
 Hare, In matter of, 43 How. 86 ; p. 90 
 
 (bankruptcy). 
 Harger v. Wilson, 63 Barb. 237; pp; 99, 
 
 100 (bills and notes). 
 Harland v. Lilienthal, 53 N. Y. 438 ; pp. 
 
 77 (attorney), 310 (evid.), 583 (pract.) 
 Harlem Bridge M. and F. R. R. Co., 
 
 Thurber v. 
 Harlem Presb. Church, In matter of, 
 
 5 Hun, 442 ; pp. 515, 517 (N. Y. city), 
 
 699 (taxes). 
 
TABLE OF CASES. 
 
 815 
 
 Harlem Savings Bank, Meehan v. 
 
 Hakloe v. Foster, 53 N. Y. 385 ; p. 8 
 (action). 
 
 Harlow, Doll w. 
 
 Harmon, O'Donnkll v. 
 
 , Shumway v. 
 
 Harmony Fire and Mar. Ins. Co., In 
 MATTER OP, 14 .466. N. S. 292, n. ; p. 603 
 (practice). 
 
 , In MATTER OF, 45 iV. Y. 310 ; aflarming 
 
 9 Abh. N. S. 347; p. 194 (corporation) . 
 
 Harnett v. Garvey, 36 N. Y. Supr. 326 ; 
 pp. 593 (pract.), 628, 632 (prin. andagt.) 
 
 Harold v. Hefferman, 42 How. 241; p. 
 622 (practice). 
 
 Harper v. Fairly, 53 N. Y. 442; p. 442 
 (Um. of action). 
 
 Harrington, Branch i>. 
 
 Harris v. Equitable Life Assur. Soc'y., 
 3 Han, 724 ; pp. 174 (oont.), 407 (ins.) 
 
 V. Frink, 49 N. Y. 24 ; reversing 2 
 
 Lans. 35; pp. 180 (conversion), 254 (de- 
 fense), 429 (landlord and tenant). 
 
 V. Jex, 55 N. Y. 421 ; p. 474 (mort.) 
 
 , Lefferts v. 
 
 V. Panama R. R. Co., 55 N. Y. 660 ; 
 
 affirming 36 N. Y. Supr. 373 ; p. 307, 
 324 (evidence). 
 
 V. People, 4 Hun, 1 ; pp. 214, 215, 226 
 
 (crkninal law), 508 (N. Y. city). 
 
 V. , 59 N. Y. 599; pp. 143 (consti- 
 tutional law), 231 (criminal law). 
 
 , PULVER V. 
 
 , Vernam v. 
 
 V. Wessels, 5 Hun, 645; p. 302 (evid.) 
 
 Harrison v. Clark, 4 Hun, 685; p. 347 
 
 (false imprisonment). 
 
 , DnTCH V. 
 
 V. Forsyth, 33 N. Y. Supr. 269 ; p. 62 
 
 (appeal). 
 
 V. Glover, 4 Hun, 121; p. 168 (cont.) 
 
 V. Kirke, 38 N. Y. Supr. 396; p. 319 
 
 (evidence). 
 V. Lourie, 49 How. 124 ; pp. 89 (bank- 
 ruptcy), 298 (evid.), 353 former adj.) 
 
 , McEntee v. 
 
 V. People, 50 N. Y. 518; p. 213 (crim. 
 
 law). 
 V. Smith, 2 Sweeny, 669; pp. 94 (bills 
 
 and notes), 162 (contract). 
 Harsha v. Reid, 45 N. Y. 415; pp. 208 
 
 (covenant), 681 (spec, pert 'oe.), 729 (ven. 
 
 and purch'r.) 
 Hart v. Fitch, 2 Sitteeny, 9 ; pp. 10 (aot'n), 
 
 170 (contract). 
 , Hissono v. 
 
 V. Hoffmann, 44 How. 168 ; pp. 108 
 
 (broker), 285 (evidence). 
 V. Messenger, 46 N. r.253; reversing 
 
 2 Lans. 446; pp. 106 (bond), 276 (estop.), 
 
 327 (evidence). 
 
 , Neapfie v. 
 
 , Smith v. 
 
 V. Taylor, 5 Hun, 288; p. 175 (cont.) 
 
 , Taussig v. 
 
 V. Wandle, 50 N. Y. 381; pp. 42 (app.), 
 
 478 (mortgage). 
 Harteau v. Deer Park Blue Stone Co. , 
 
 1 Hun, 493 ; p. 157 (contempt). 
 
 V. Gardner, 51 N. Y. 678 ; p. 363 
 
 (frauds, stat. of). 
 
 , Jaffe v. 
 
 Barter i>. Blanchard, 64 Barb. 617; pp. 81 
 
 (bailment), 627 (principal and agent). 
 Hartford Fire Ins. Co., Angell v. 
 
 , NOYES V. 
 
 Hartley v, James, 50 N. Y. 38; p. 728 
 
 (vendor and purchaser). 
 Habtman, Blum v. 
 
 , Derby v. 
 
 , People ex rel. Meyer v. 
 
 Hartnett v. Wandell, 60 N. F.- 346; revg. 
 
 2 Hun, 552; pp. 269 (English laws), 341 
 (exec, and adm.), 696 (surr.), 742 (will). 
 
 Harton v. Bloom, 33 N. Y. Supr. 115; p. 
 
 503 (new trial). 
 Hartshorn, Luce v. 
 
 , Price v. 
 
 Habtshorne, Johnson v. 
 
 Harvey, Wilson v. 
 
 Harway v. Mayor, etc. of New York, 1 
 
 Hun, 628 ; pp. 554 (pldg.), 671 (set-off). 
 
 , MUBRAY V. 
 
 Haewood V. Keech, 4 Hun, 389 ; pp. 54 (ap- 
 peal), 676 (slander). 
 Hasbbouck v. Bouton, 41 How. 208 ; 60 
 
 Barb. 413 ; pp. 337 (execut'n), 707 (title 
 
 to chattels). 
 
 , Collins v. 
 
 Hascall t>. Life Ass. op Amebica, 5 Hun, 
 
 151 ; pp. 94 (bills and notes), 187 (corp.) 
 Haskell v. Village of Penn Yan, 5 Lans. 
 
 43; pp. 485 (municipal corporations), 545 
 
 (pleading). 
 Haskin, Bathgate v. 
 V. New Yoek Cent. 
 
 Co., 65 Barb. 129; p. 
 Haslett, Stowbll v. 
 Hassan v. City op Rochester, 6 Lans. 185; 
 
 p. 657 (Rochester). 
 Habsler, Fitch v. 
 Hastings, Heatherton v. 
 
 & Hud. Riv. R R. 
 , 491 (negligence). 
 
816 
 
 TABLE OF CASES. 
 
 Haswell, Murphy v. 
 
 Hatch v. Bassett, 52 N. Y. 359; pp. 745, 
 748 (will). 
 
 , boynton v. 
 
 , Db Harx v. 
 
 V. FoGBKTY, 10 Abh. N. S. 147; 33 JV. 
 
 Y. Supr. 166 ; p. 79 (attorney). 
 
 , People v. 
 
 , People ex rel. Angbll v. 
 
 , People ex rel. Gilpathick v. 
 
 , Perkins v. 
 
 — ■- V. Peugnet, 64 Barb. 189 ; pp. 52 (ap- 
 peal), 756 (witness). 
 
 , Wicks v. 
 
 Hatfield, Birmingham Iron Foundry v. 
 
 , Cobb v. 
 
 , LODER V. 
 
 , LOESCHIGK V. 
 
 V. Snbden, 54 N. Y. 280 ; reversing 42 
 
 Barb. 615 ; p. 231 (curtesy). 
 
 Hathaway v. Howell, 54 N. Y. 97 ; 4 
 ^«n, 270 ; pp. 134 (chat, mortg.), 338 
 (exec.) 608 (practice). 
 
 V. Johnson, 55 N. Y- 93; p. 614 (prae.) 
 
 V. Town op Homer, 5 Leans. 267 ; re- 
 versed, 54 N. Y. 655 ; pp. 289 (evid.), 
 464 (money had). 
 
 V. Warren, 44 Houi. 161 ; p. 205 
 
 (county judge). 
 
 Hathorn, Post v. 
 
 , Treat v. 
 
 Hatton, Flynn 0. 
 
 Hauck v. Craighead, 4 Hun, 561; pp. 564, 
 566 pleading). 
 
 Hausbman v. Sterling, 61 Barb. 347 ; p. 
 577 (practice). 
 
 Havana, Village of, v. Board of Sups, 
 of Schuyler Co., 2 Hun, 600 ; pp. 22, 
 28 (action), 688 (statutes). ' 
 
 Havembyer v. Ingersoll, 12 Abb. N. S. 
 801 ; pp. 572, 625 (practice). 
 
 , People, ex rel. Davin v. 
 
 , People, ex rel. New York and Har- 
 lem R. R. Co. V. 
 
 , People, ex rel. McGowen v. 
 
 , ZOLLIKOFFBR V. 
 
 Havens v. Gordon, 5 Hun, 178 ; p. 337 
 (execution). 
 
 V. Klein, 49 How. 95 ; p. 264 (ease- 
 ment). 
 
 V. National City Bank of Brook- 
 lyn, 4 Hun, 131 ; p. 612 (practice). 
 
 V. Patterson, 48 N. Y. 218 ; pp. 18 
 
 (actions), 384 (inlants), 729 (vend, and 
 purchaser). 
 
 Haviland v. Wshle, 43 How. 59 ; 4 Paly, 
 
 549 ; 11 Abb. N. S. 447; pp. 76 (attach- 
 ment), 451 (marine ct.), 620 (practice). 
 
 , Wbhle v. 
 
 Hawk, Windsor Hotel Co. v. 
 Hawkins, Dunlap v. 
 
 V. Macy, 2 Hun, 668 ; p. 581 (prac.) 
 
 V. Palmer, 57 N. Y. 664 ; p. 41 (app.) 
 
 V. Pembbrton, 44 How. 102 ; 51 N. Y. 
 
 198 ; revg. 6 Rob. 42 ; 35 How. 376 ; p. 
 664 (sale). 
 
 , People, ex rel. Perkins v. 
 
 Hawks v. Swett, 4 Hun, 146 ; pp. 253 (d&- 
 
 fense), 275 (estoppel), 353 (former adj.) 
 Hawley v. Davis, 5 Hun, 642 ; p. 201 
 (costs). 
 
 u. Kbblbr, 53 N. Y. 114; affirming 
 
 62 Barb. 231 ; pp. 362 (frauds, stat. of), 
 628 (prin. and agt.), 659 (sale), 706 (ten. 
 in com.), 732 (waiver). 
 
 , Phelps v. 
 
 V. Sackett, 3 Hun, 605; p. 358 (fraud- 
 ulent conv.) 
 Haws, New York and Harlem R. R. Co. v. 
 Hay v. Douglass, 2 Sweeny, 49. 
 
 , Whitlock v. 
 
 Haycroft v. Lake Shore and Mich. So. 
 Railway Co., 2 Hun, 489 ; p. 592 
 (practice). 
 Hayden t)i Brooklyn Savings Bank, 15 
 Abh. N. S. 297 ; pp. 85 (banks), 541 (pay- 
 ment). 
 V. De Mets, 84 N. Y. Supr. 344 ; af- 
 firmed 53 N. Y. 426 ; pp. 54 (ap- 
 peal), 668 (sale), 706, 707 (tender), 733 
 (waiver). 
 
 V. Florence Sewing Machine Co., 
 
 54 N. Y. 221; pp. 65 (appeal), 241 (dam- 
 ages), 334 (evidence). 
 Haydock v. Coope, 58 JV. Y. 68 ; pp. 75 
 
 (assignment for benefit), 275 (estop.) 
 Haye v. Robertson, 38 N. Y. Supr. 459 ; 
 
 15 Abb. N. 8. 194; p. 200 (costs). 
 Hayes v. Baxter, 65 Barb. 181 ; p. 
 (partnership). 
 
 V. Huffstater, 65 Barb. 530 ; p. 
 
 (money paid). 
 
 V. Phelan, 4 Hun, 783; pp. 14 (action), 
 
 136 (civil damage act), 547 (pleading), 
 689 (statutes). 
 
 V. Thompson, 15 Abb. N. S. 220; pp. 
 
 578, 609 (practice). 
 
 V. , 2 Hun, 518 ; p. 56 (appeal). 
 
 V. WiLLio, 11 Abb. N. S. 167; pp. 385 
 
 (injunction), 488 (ne exeat), 
 
 V. , 4 Daly, 259; p. 72 (aesignt.) 
 
 Hayman, Holland v. 
 
 536 
 
 467 
 
TABLE OF CASES. 
 
 817 
 
 Hayner v. Amebic an Pop. Life Ins. Co., 
 
 36 N. Y. Supr. 211; modifying 35 N. Y. 
 
 Supr. 266 ; pp. 271 (equity), 409 (ins.) 
 
 , Hill v. 
 
 , Mayenborg v. 
 
 V. Ondbrdonk, 2 Run, 619; p. 257 
 
 (determining claims). 
 
 , Teoxallu. 
 
 Hays v. Gourley, 1 Hun, 38; p. 752 (will). 
 
 , Hale v. 
 
 , Hopfstater v. 
 
 V. Thomae, 56 N. Y. 521; p. 12 (act.) 
 
 Haywaed, Brooklyn Daily Union v. 
 Hazard v. Abeel, 15 Ahb. N. S. 413; pp. 
 
 91 (biU of lading), 735 (wareh.) 
 
 , GODILLOT V. 
 
 V. Heepard, 2 Hun, 445; p. 740 (will). 
 
 , McHenry v. 
 
 , Smith v. 
 
 H'azelton, Ripley u. 
 
 Hazewell !;.-»Coursen, 36 N. Y. Supr. 459 ; 
 
 pp. 180 (conversion), 377 (husband and 
 
 wife), 715 (trust). 
 Hazman v. Hoboken Land and Imp't. 
 
 Co., 50 N. Y. 53; a%. 2 Daly, 130. 
 
 See Digest, vol. iv. 
 Heacock, Lathrop v. 
 Head v. Smith, 44 How. 476; pp. 56 (app.), 
 
 350, 351 (former adj.) 
 Heady's Will, 15 Abb. iV. S. 211; p. 738 
 
 (will). 
 Healey v. Dudley, 5 Lans. 115; pp. 142, 
 
 146 (constl. law), 447 (mand.) 
 •: V. Mayor, etc. op New York, 3 Hun, 
 
 708; p. 591 (practice). 
 Heard v. Brewer, 4 Daly, 136; pp. 293 
 
 (evidence), 347 (factor), 437 (lien). 
 V. City of Brooklyn, 60 N. Y. 242 ; 
 
 pp. 149 (const'l. law), 242 (deed), 656 
 
 (reversion). 
 
 ■-, Heinemann v. 
 
 Heath v. Barmore, 50 N.Y. 302; pp. 149 
 
 (const't. law), 194 (corp.), 544 (pi. road). 
 V. Grenell, 61 Barb. 190; p. 442 (lim, 
 
 of actions). 
 
 , Hover v. 
 
 , Putnam v. 
 
 , Smith v. 
 
 Heatherton V. Hastings, 5 Hun, 459; p. 
 
 648 (receiver). 
 Heavy, Tuttlb v. 
 Hebrew Free School Assoc'n. v. Mayor, 
 
 etc. of New York, 4 Hun, 446 ; pp. 
 
 138 (cloud on title), 669 (taxes). 
 Hedges v. Bungay, 8 Hun, 594; p. 74 (as- 
 signment for ben.) 
 52 
 
 V. Hudson River R. R. Co., 49 N. Y. 
 
 223; ravg. 6 Rob. 119; pp. 122 (carrier), 
 
 586 (practice). 
 Heermans v. Ellsworth, 3 Hun, 473 ; pp. 
 
 299 (evid.), 541 (payment), 717 (trust). 
 
 , Fellows v. 
 
 V. Hill, 2 Hun, 409; p. 696 (surrogate). 
 
 , Olcott v. 
 
 V. Robertson, 3 Hun, 461 ; P- 266 
 
 (ejectment), '351 (former adjud.), 717 
 
 (trust). 
 
 , Young v. _ 
 
 Hees v.' Nellis, 65 Barb. 440 ; p. 25 (act. ), 
 
 559 (pleading), 610 (practice). 
 Hbfferman, Harold v. 
 Hefpord, Hazard v. 
 Hegbman, Pinckney v. 
 
 , Rowland v. 
 
 Height v. People, 59 N. Y. 392 ; p. 230 
 
 (crim'l. law). 
 Heimbueg v. Ismay, 35 N. Y. Supr. 35; pp. 
 
 237 (damages), 728 (vend, and purchr.) 
 Heincken, Shepard v. 
 Heinemann v. Heard, 50 N. Y. 27; revers- 
 ing 58 Barb. 524; pp. 234 (damages), 
 
 296 (evidence), 634 (prin. and agt.) 
 V. , 2 Hun, 324; pp. 176 (contract), 
 
 234 (damages), 257 (deposition). 
 Heinmullek v. Abbott, 34 N. Y. Supr. 
 
 228; p. 310 (evidence). 
 V. Gray, 44 How. 260; 13 Abb. JST. S. 
 
 299; 35 N. Y. Supr. 196; p. 2 (abate- 
 ment and revivor). 
 Heinrich v. Korn, 4 Daly, 74 ; p. 108 
 
 (broker). 
 
 V. KoM, 47 N.Y. 658; p. 36 (appeal). 
 
 Heller, In matter op, 41 How. 213 ; p. 
 
 86 (bankruptcy). 
 Hellman, Calkins v. 
 
 , Robertson v. 
 
 Helms v. Goodwill, 2 Hun, 410 ; p. 77 
 
 (attorney). 
 
 1). Otis, 5 Lans. 137; p. 439 (lim. of act.) 
 
 Hemphill v. Trull, 46 How. 384; p. 52 
 
 (appeal). 
 Hemstreet, Smith v. 
 Henderson v. Jackson, 2 Sweeny, 324. 
 
 V. , 2 Sweeny, 603; p. 58 (appeal). 
 
 V. Spoppord, 10 Abb. N. S. 140; 4 Daly, 
 
 361; affirmed 59 N. Y. 131; pp. 513 
 
 (New York city), 543 (pilots), 683, 686 
 
 (statutes). 
 
 V. Stone, 2 Sweeny, 468 ; 40 How. 333. 
 
 #See Digest, vol. iv. 
 
 , Thackkr v. 
 
 Hendricks, Stueges v. 
 
818 
 
 TABLE OF CASES. 
 
 , townsend v. 
 
 Hendriokson, Beers k. 
 
 Hening v. Puknett, 4 Daly, 543; pp. 237 
 (damages), 417 (jud. sale), 554 (plead.) 
 
 Hbnken, Divoll v. 
 
 Henley u. Fitzgerald, 65 Barb. 508; p. 
 750 (will). 
 
 Henness, Kivenbuech v. 
 
 Hennessey, Ontario Bank v. 
 
 , Pitcher v. 
 
 Hbnnion, Nimmons v. 
 
 Henry v. Fowler, 3 Daly, 199; pp. 78 (at- 
 torney), 437 (lien), 718 (trust). 
 
 Hbnshaw, People ex rel. Doty v. 
 
 V. Rowland, 54 N. Y. 242; p. 125 
 
 (carrier). 
 
 Hepburn, Fisher v. 
 Hepper, Taylor v. 
 Herbert, Hallahan v. 
 
 V. Smith, 6 Lans. 493; pp. 51 (appeal), 
 
 530, 531, 532 (partition). 
 
 Herdman, Disborotjgh v. 
 
 Herkimer County, Cortland County v. 
 
 Hkrman, Barton v. 
 
 , Sterne v. 
 
 Hermance, Babcock v. 
 
 , Dubois v. 
 
 Hermans, Hill v. 
 
 Hernandez, Scofield v. 
 
 Hbrrick v. Gallagher, 60 Barh. 566; p. 
 
 346 (express company). 
 
 , Van Boskerck v. 
 
 Hbttrick, Beudell v. 
 Hbwins, Van Allen v. 
 Hewitt v. Miller, 61 Barb. 567; p. 235 
 
 (damages). 
 
 V. Morris, 37 N. Y. Supr. 18; pp. 295 
 
 (evidence), 551 (pleading), 597 (practice). 
 
 Hewlett v. Wood, 1 Hun, 478; p. 531 (par- 
 tition). 
 
 V. , 55 N. Y. 634 ; pp. 44 (appeal), 
 
 326 (evidence). 
 
 V. , 3 Hun, 736; p. 530 (partition). 
 
 Hexter t). Knox, 39 N. Y. Supr. 109 ; pp. 
 237 (damages), 255 (defense), 280 (estop- 
 pel), 433 (land, and tenant). 
 
 , schlbsinger v. 
 
 Heydorn, Central Bank oe Troy v. 
 
 Heye v. Robertson, 15 Abh. N. S. 194; p. 
 200 (costs). 
 
 Hbyerdahl, Hossack v. 
 
 HiBBARD, National State Bank of 
 Troy v. 
 
 HiBSCHER, Meyer v. 
 
 HicKOx, Mason v. 
 
 , SOH WINGER V. 
 
 V. Thurstin, 7 Lans. 421 ; pp. 128 
 
 (cattle in highway), 241 (damages). 
 
 Hicks, Bush v. 
 
 V. Cleveland, 48 N. Y. 84 ; revg. 39 
 
 Barb. 573 ; pp. 182 (conv.), 661 (sale). 
 
 V. Shbppard, 4 Lans. 335 ; pp. 267 
 
 (ejectm.), 320 (evi.) 552 (pleading). 
 
 Hidden v. Waldo, 55 N. Y. 294 ; pp. 635, 
 
 636 (principal and surety). 
 Hiembntz, Sbltenreich v. 
 Hier v. Grant, 47 N. Y. 278 ; pp. 553 
 
 (pleading), 756 (witness). 
 
 V, Staples, 51 N. Y. 136 ; pp. 549 
 
 (pleading), 732 (waiver). 
 
 HiGBiE V. Guardian Mut. Life Ins. Co., 
 53 N. Y. 603; pp. 324 (evid.), 408 (ins.) 
 
 HiGGiNS V. Delaware, Lack, and W. R. 
 R. Co., 60 N. Y. 653 ; p. 666 (sale). 
 
 , MULLER V. 
 
 V. Murray, 4 Hun, 565; pp. 362 
 
 (frauds, statute of), 663 (^le) . 
 
 V. Newtown and Flushing R. R. Co. , 
 
 3 Hun, 611 ; p. 235 (damages). 
 V. People, 7 Lans. 110; pp. 213, 225, 
 
 228 (criminal law). 
 V. , 58 N. Y. 377 ; afPg. 1 Hun, 
 
 307 ; pp. 214, 230 (criminal law). 
 
 , Phillips v. 
 
 , Rector, etc. op Trinity Church v. 
 
 — — V. Water VLiBT Turnpike Co. , 46 N. 
 
 Y. 23 ; p. 457 (master and servant). 
 High Rock Cong. Spring Co., Congress 
 
 and Emp. Spring Co. v. 
 Hildebrant v. Crawford, 6 Lans. 502; 
 
 pp. 199 (costs), 300, 320 (evidence), 631 
 
 (principal and agent), 756 (witness). 
 HiLDERBRAND V. People, 56 N. Y. 394 ; 
 
 aflg. 1 Hun, 19 ; pp. 213, 229 (criminal 
 
 law). 
 Hildreth, Mills v. 
 
 V. Shepard, 65 Barb. 265 ; pp. 293 
 
 (evidence), 435 (lex loci), 584 (practice), 
 724 (usury). 
 
 HiLER, Atlantic Savings Bank v. 
 
 Hill v. Grant, 46 N. Y. 496; p. 469 (mort- 
 gage). 
 
 V. Haynes, 54 N. Y. 153 ; pp. 335 (ex- 
 ecution), 527 (officer). 
 
 , Heermans v. 
 
 V. Hermans, 59 iV. Y. 396 ; p. 60 (ap- 
 peal). 
 
 — --, Knickbkbocker Life Lsrs. Co. v. 
 
 V. McKenzie, 1 Hun, 110 ; p. 658 
 
 (sale). 
 
 V. Newichawanick Co., 48 How. 427 ; 
 
 p. 184 (corporation). 
 
TABLE OF CASES. 
 
 819 
 
 Hill v. Northrop, 1 Hun, 612 ; p. 582 
 (practice). 
 
 , Northrop v. 
 
 , People ex rel. Davis v. 
 
 , Perkins v. 
 
 V. PiXLEY, 63 Barb. 200 ; pp. 463 (mer- 
 ger), 474 (mortgage). 
 
 V. Priestly, 52 N. Y. 635 ; pp. 249 
 
 (deed), 320 (evidence). 
 
 , Sands v. 
 
 , Shepherd v. 
 
 V. Simpson, 11 Abb. N. S. 343 ; p. 197 
 
 (costs). 
 
 V. Spencer, 34 N. Y. Supr. 304 ; p. 190 
 
 (corporation). 
 
 Hillenbrand, Dalrymple v. 
 
 , Grimes v. 
 
 Hills v. Place, 48 N. Y. 520 ; affg. 7 Rob. 
 389 ; 36 How. 26; 5^66. iV. S. 18. See 
 Digest, vol. iv. 
 
 , Tanner v. 
 
 HiLLYER V. Rosenberg, 11 Abb. N. S. 402 ; 
 p. 393 (insolvent debtor). 
 
 Hilton v. Bender, 2 Hun, 1 ; pp. 29, 30 
 (adv. pos'n.), 433 (land, and tenant). 
 
 , Watts v. 
 
 Himes, Saunders v. 
 
 HiNCKEN V. Mutual Ben. Life Ins. Co., 6 
 Lans. 21 ; affd. 50 N. Y. 657 ; pp. 300 
 (evid.), 409 (ins.) 
 
 Hinckley v. Kreitz, 58 N. Y. 583 ; revers- 
 ing 36 N. Y. Supr. 413 ; pp. 637 (prin- 
 cipal and surety), 722 (undertaking). 
 
 V. New York Central and Hud. 
 
 Riv. R. R. Co., 56 N. Y. 429 ; pp. 119 
 (carrier), 321 (evidence.) 
 
 V. Smith, 51 N. Y. 21; pp. 382 (hus- 
 band and wife), 679 (spec, perf ce.) 
 
 HiNDE V. Smith, 6 Lans. 464; pp. 61 (appeal), 
 236 (damages). 
 
 Hinds, Amsbry v. 
 
 , Kenney v. 
 
 HiNES V. City of Lookport, 41 How. 435; 
 60 Barb. 378; 5 Lans. 16; affirmed 50 
 N. Y. 236; pp. 443 (Lockport), 486 
 (municipal corporation). 
 
 V. Strong, 46 How. 97 ; pp. 56 (appeal), 
 
 568 (pledge). 
 
 HiNMAN V. BowEN, 3 Hun, 192; p. 253 (de- 
 fense). 
 
 HiNTERMISTER V. FlRST NATIONAL BANK OF 
 
 Chenango, 3 Hun, 345; pp. 85 (banks), 
 
 725 (usury). 
 HiRscH, Goodwin v. 
 V. Livingston, 48 How. 243; 3 Hun, 9; 
 
 p. 481 (mortgage). 
 
 Hirschsohn v. I^amburgh and Am. Pack- 
 et Co., 34 N. Y. Supr. 521; p. 125 
 (carrier). 
 
 HiRTH, Kaiser v. 
 
 Hiscock v. Phelps, 49 N. Y. 97 ; p. 472 
 (mortgage). 
 
 HissoNG V. Hart, 39 N. Y. Supr. 411; p. 80 
 (bail). 
 
 HoAG, Chandler v. 
 
 V. Lamont, 60 N. Y. 96; pp. 187 (Corp.), 
 
 315 (evidence), 418 (jurisdiction). 
 
 V. Owen, 57 N. Y. 644 ; affirming 60 
 
 Barb. 34 ; pp. 318 (evidence), 728 (ven- 
 dor and purchaser). 
 
 HoAGLANDw. Trask, 48 N. Y. 686; p. 75 
 (assignment for benefit): 
 
 Hoare, Rowles v. 
 
 Hobby v. Hobby, 64 Barb. 277; p. 293 
 (evidence). 
 
 HoBEUsr, Schneider v. 
 
 HoBOKEN Land and Imp't. Co., Hazman v. 
 
 Hoch, Wilcox v. 
 
 HOCHSTETTER V. ISAACS, 44 How. 495; 14 
 Abb. N. S. 235; p. 603 (practice). 
 
 Hodge v. Sexton, 1 Hun, 576 ; pp. 104 
 {bona fide purchaser), 730 (wager). 
 
 Hodges v. Cooper, 43 N. Y. 216 ; p. 594 
 (practice). 
 
 HODGMAN, GRISWOLD V. 
 
 HoDGSKiN V. Atlantic and Pacific R. R. 
 
 Co., 3 Daly, 70 ; p. 626 (practice). 
 Hodgson, Tompkins v. 
 HoDNETT V. Smith, 41 How. 190 ; 10 Abb. 
 
 N. S. 86; 2 Sweeny, 401; p. 300 (evid.) 
 Hoeft v. Seaman, 38 N. Y. Supr. 62; 46 
 
 How. 24; pp. 154 (constitutional law), 
 
 388 (injunction), 508, 513 (N. Y. city). 
 HoEY, Taylor v. 
 Hoffenberth v. Muller, 12 Abb. N. S. 
 
 221 ; pp. 53 (appeal), 77 (attorney), 451 
 
 (marine court). 
 Hoffman v. Armstrong, 48 N. Y. 201; 
 
 affirming 46 Barb. 337. See Digest, 
 
 vols. i. and iii. 
 
 V. Barry, 2 Hun, 52 ; p. 64 (appeal). 
 
 , Hart v. 
 
 V. Hoffman, 46 N. Y. 30; affirming 
 
 55 Barb. 269. See Digest, vol. iv. 
 
 ,, Passaic Manufacturing Co. u. 
 
 , Sander v. 
 
 V. Treadwell, 39 N. Y. 183; pp. 271 
 
 (equity), 380 (husband and wife). 
 — V. Union Ferry Co. op Brooklyn, 
 
 47 N. Y. 176 ; 4 Hun, 274; pp. 489,496 
 
 (negligence). 
 — , Yates v. 
 
820 
 
 TABLE OF CASES. 
 
 Hoffman Fieb Ins. Co., Paemelee v. 
 
 HoFHEiMER V. Campbell, 7 Lans. 157 ; 
 affirmed 59 N. Y. 269 ; pp. 45, 58 (ap- 
 peal), 655 (repl.), 627 (sherifE.) 
 
 Hofnagle v. New York Cent, and Hud. 
 Riv. R. R. Co., 55 N. Y. 608 ; pp. 456 
 (master and servant), 488 (negligence). 
 
 HoGAN V. City op Brooklyn, 52 N.Y. 282; 
 pp. 159 (contract), 280 (estop.), 301 (evi.) 
 
 Hoge, Campbell v. 
 
 , Redmond v. 
 
 Hohenthal, Turnure v. 
 
 HoLBROOK V. Bkennan, 48 How. 192; p. 65 
 (appeal). 
 
 w. , 48 How. 519 ; pp. 348 (false re- 
 turn), 672 (sherife). 
 
 , Corcoran v. 
 
 V. New Jersey Zinc Co., 57 N. Y. 
 
 616; pp. 185 (corporation), 276 (estoppel), 
 282, 285, 292 (evid.), 442 {lis pendens). 
 
 V. Okgler, 49 How. 289; pp. 451 (ma- 
 rine court), 613 (practice). 
 
 Holden u. BuRNHAM, 2 Hun, 678; p. 358 
 (fraudulent conveyance). 
 
 V. Clancy, 41 How. 1; 58 Barb. 590; p. 
 
 665 (sale). See Digest, vol. iv., p. 689. 
 
 V. New York Cent. R. R. Co., 58 N. Y. 
 
 662; p. 327 (evidence). 
 
 V. Putnam Fire Ins. Co., 46 N. Y. \\ 
 
 p. 279 (estoppel), 653 (removal to U. S. 
 court). 
 
 , SUYDAM V. 
 
 HoLDREDGE w. Webb, 64 Barb. 9; pp. 252 
 
 (defense), 663 (sale). 
 HoLDEiDGE, Becker v. 
 
 , Manvel v. 
 
 , People, ex rel. Blake v. 
 
 Hollacher ij. O'Brien, 5 Hun, 277; pp. 
 
 296 (evidence), 589 (practice). 
 Holladay, Morgan v. 
 Holland v. Hayman, 45 How. 16 ; p. 62 
 
 (appeal). 
 
 , Merchants' Bank of Canada v. 
 
 , Palmer v. , 
 
 , Eawson v. 
 
 , Smith v. 
 
 , WiTBECK V. 
 
 Holland Purchase Ins. Co., Owens v. 
 
 , Redpield v. 
 
 , Train v. 
 
 Hollby v. Mayor, etc. New York, 59 N. 
 Y. 166 ; p. 450 (marine court). 
 
 HOLLINGSWORTH V. SpAULDING, 54 N, Y. 
 
 636; p. 721 (trusts). 
 HoLLiSTER, Beach v. 
 . , Branning V, 
 
 , Chapin v. 
 
 Holloway v. Stephens, 46 How. 863; p. 
 
 61 (appeal). 
 V. , 48 How. 129; 1 Hun, 308; 2 id. 
 
 384; p. 634 (principal and agent). 
 
 V. , 58 N. Y. 670; p. 39 (appeal). 
 
 Holm v. Wust, 11 Abh. N. 8. 118; p. 470 
 
 (mortgage). 
 Holmes, In matter of, 49 How. 142 ; p. 
 
 86 (bankruptcy). 
 
 , Evans v. 
 
 V. Holmes, 4 Lans. 388; p. 274 (estop.), 
 
 452 (marriage and divorce). 
 
 v. Hubbard, 60 N. Y. 188; p. 106 
 
 (bond). 
 
 V. Mead, 52 N. Y. 332 ; pp. 717 (trusts), 
 
 741, 743 (will). 
 V. Pettingill, 60 N. Y. 646 ; affirming 
 
 1 Hun, 316; p. 822 (evidence). 
 
 , Rutherford v. 
 
 V. Smith, 8 Hun, 413 ; p. 696 (surro. ) 
 
 Holt, Cook v. 
 
 V. Ross, 54 N. Y. 472; affirming 59 
 
 Barb. 554; pp. 94 (bills and notes), 466 
 (money paid), 633 (principal and agent). 
 
 HoLTz V. Schmidt, 34 N. Y. Supr. 28; p. 
 
 572 (practice). 
 V. , 59 N, Y. 258; pp. 9 (action), 
 
 162 (contract). 
 HoLYOKE V. Adams, 1 Hun, 228; affirmed 
 
 59 N. Y. 233 ; pp. 89 (bankruptcy), 562 
 
 (pleading). 
 V. , 59 N. Y. 288 ; p. 39 (appeal), 
 
 562 (pleading). 
 HoMAN u. Earle, 13 Ahb. N. S. 402; pp. 
 
 160 (cont.), 238 (damgs.), 827 (evid.) 
 V. -, 53 N. Y. 267; affirming 13 Ahb. 
 
 N. S. 402; pp. 160 (contract), 276 (es- 
 toppel), 327 (evidence). 
 HoMAN, Maiee v. 
 Homburqer v. Homburger, 46 How. 346 ; 
 
 p. 829 (evidence). 
 Home Ins. Co., Germond v. 
 
 V. Jones, 45 How. 498; p. 481 (mort.) 
 
 V. Morse, 49 How. 314; pp. 179 (cont), 
 
 654 (removal to U. S. court) . 
 
 , Rann v. 
 
 w. Watson, 59 N. Y. 890 ; reversing 
 
 IHun, 643; p. 106 (bond). 
 V. Western Transp. Co., 51 N. Y. 93; 
 
 pp. 44 (appeal), 123 (carrier). 
 Home Life Ins. Co., Baker v. 
 
 , Coffey v. 
 
 , Shaw v. 
 
 V. Sherman, 46 N. Y. 370 ; p. 431 (land- 
 lord and tenant). 
 
TABLE OF CASES. 
 
 821 
 
 HoMEK, Town of, Hathaway x>. 
 Hoke, Getmes v. 
 HoNNEss, Adams v. 
 
 HOOGLAND, RaYNOR V. 
 
 Hook, Hunter v. 
 
 , Newton v. 
 
 HoOLEY, People ex rel. Slikbr v. 
 
 HOONBY, RatHBONB V. 
 
 Hooper v. Db Long, 37 N. Y. Supr. 127; p. 
 
 96 (bills and notes). 
 Hoover v. Greenbaum, 62 Barb. 188 ; p. 
 
 87 (bankruptcy). 
 Hope v. Balbn, 58 N. Y. 380; p. 317 (evid.) 
 
 , MiERSON V. 
 
 Hope v. Lawrence, 1 Hun, 317; p. 181 
 
 (conversion). 
 V. Smith, 35 N. Y. Supr. 458 ; p. 317 
 
 (evidence). 
 Hope Fire Ins. Co. v. Cambrelling, 1 Hun, 
 
 493; pp. 472 (mortgage), 523 (notice). 
 
 , Clinton v. 
 
 Hope MrrTUAL Life Ins. Co., Glen v. 
 Hopkins, Florence v. 
 
 V. Hopkins, 1 Hun, 352; p. 752 (will). 
 
 V. Lane, 2 Hun, 38; pp. 554 (pleading), 
 
 608 (practice),. 666, 668 (sale). 
 V. Mason, 42 How. 115; 61 Barh. 469; 
 
 pp. 144, 145 (const, law), 268 (eject.), 
 
 295 (evidence), 487 (mun. corp.) 
 
 , People, ex rel. Church v. 
 
 Hoppack w. Moses, 43 Mow. 201; pp. 313 
 
 (evid.), 627, 631 (prin. and agent). 
 V. Tucker, 59 N. Y. 202, 641 ; affirming 
 
 1 Hun, 132; pp. 744, 749 (wiU). 
 Hoppough v. Struble, 60 N. Y. 430; p. 
 
 267 (ejectment). 
 HoRAN, Maloney v. 
 Horn v.. Amicable Mutual Life Ins. Co., 
 
 64 Barb. 81 ; p. 407 (insurance). 
 V. Brennan, 46 How. 479 ; pp. 52 (ap- 
 peal), 606 (practice). 
 V. Keteltas, 42 How. 1§8; 46 N. Y. 
 
 605; p. 321 (evidence). 
 Horstman v. Miller, 35 N. Y. Supr. 29 ; 
 
 p. 140 (composition). 
 Horton, Cushman v. 
 
 V. McCoy, 47 N. Y. 21 ; p. 748 (will). 
 
 V. Moot, 60 Barb. 27 ; p. 593 (pract.) 
 
 , People v. 
 
 , Sheldon v. 
 
 , TlFFT V. 
 
 HossACK V. Heyerdahl, 38 N. Y. Supr. 
 
 391 ; affd. 60 N. Y. 634 ; p. 600 (pract.) 
 HosTEK, People ex rel. Heilbronner v. 
 HoTCHKiss V. English, 4 Hun, 369; pp. 101 
 
 (bills and notes), 534 (partnership). 
 
 V. G*RMANiA Fire Ins. Co., 5 Hun, 90; 
 
 pp. 804, 305, 306, 331 (evid.), 401 (his.) 
 V. Mosher, 48 N. Y. 478; pp. 300, 305, 
 
 320 (evidence). 
 HouBiE V. VoLKENNiNG, 49 How. 169 ; p. 706 
 
 (tender). 
 HouGHTALiNG V. Groesbeck, 51 N. Y. 673 ; 
 
 p. 422 (just, ct.) 
 
 , Hadden v. 
 
 Houghton v. Walce, 64 Barb. 613; pp. 115 
 
 (canal), 496 (negligence). 
 House v. Grant, 4 Lans. 296 ; p. 366 (gift). 
 V. Jackson, 50 N. Y. 161 ; p. 260 
 
 (dower). 
 V. MoCobmick, 57 N. Y. 310 ; pp. 248 
 
 (deeds), 273 (estoppel). 
 V. Raymond, 3 Hun, 44 ; pp. 747, 750, 
 
 751 (will). 
 HousTiNE V. O'DoNNELL, 5 Hun, 472 ; pp. 
 
 585 (practice), 757 (witness). 
 Houston v. Wheeler, 52 N. Y. 641 ; pp. 
 
 387 (inj.), 689 (stats.), 731 (waiver). 
 Hover v. Barkhoff, 44 N. Y. 113 ; pp. 15 
 
 (actions), 32S (evidence), 527 (office). 
 V. Heath, 3 Hun, 283 ; pp. 79 (atty.), 
 
 233 (damages). 
 HovEY V Rubber Tip Pencil Co., 14 Abb. 
 
 N. S. 66 ; pp. 78 (atty.), 671 (set-off). 
 
 V. , 12 Abb. N. S. 360 ; . 35 N. Y. 
 
 . Supr. 81 ; affirmed 50 iV. Y. 335 ; p. 623 
 
 (practice). 
 
 V. , 47 How. 289 ; p. 622 (practice). 
 
 V. , 38 N. y. Supr. 428; p. 622 
 
 (practice). 
 V. , 57 N. Y. 119 ; a%. 33 N. Y. 
 
 Supr. 522 ; pp. 391 (inj.), 419 (juris.) 
 Howard, Becker v. 
 V. DusENBEERY, 44 How. 423 ; pp. 606 
 
 (practice), 731 (waiver). 
 1). France, 43 N. Y. 593 ; pp. 17, 23 
 
 (action). 
 V. Moot, 2 Hun, 475 ; pp. 145 (const. 
 
 law), 638 (Pult'ney estate), 739 (will). 
 V. Norton, 65 Barb. 161 ; pp. 4 (accord 
 
 and satisfaction), 301, 318 (evidence). 
 V. Smith, 42 How. 300; 33 N. Y. Supr. 
 
 124; pp. 287 (evidence), 587 (pract.) 
 v. , 35 N. Y. Supr. 131; p. 415 
 
 (judgment). 
 
 , Snelling v. 
 
 , White v. 
 
 Howard Ins. Co., Savage v. 
 
 HowDEN, Boyd u. 
 
 Howe, Gregg v. 
 
 V. Potter, 61 Barh. 356 ; p. 99 (bills 
 
 and notes). 
 
822 
 
 TABLE OF CASES. 
 
 Howe v. Savory, 51 JST. T. 63i; revg. 49 
 Barb. 403 ; p. 634 (prin. and agt.) 
 
 , Stephens v. 
 
 Howell v. Biddlecom, 62 Barb. 181 ; pp. 
 307 (evidence), 667 (sales). 
 
 , Hathaway v. 
 
 , Kellogg v. 
 
 U.Knickerbocker Life Ins. Co., 44 
 
 N. Y. 276 i revg. 3 Rob. 232 ; 19 Abb. 
 217 ; p. 409 (insurance). 
 
 , V. Mills, 53 N. Y. 322 ; pp. 35, 58 
 
 (appeal), 417 (judicial sale), 631 (prin. 
 and agent). 
 
 V. , 56 N. Y. 226; affirming 7 Lans. 
 
 193 ; pp. 42 (appeal), 530 (partition), 
 752 (will). 
 
 «. People, 5 Hun, 620 ; p. 220 (crim- 
 inal law). 
 
 , Wilcox v. 
 
 Howe Machine Company, Cooley v. 
 
 Howes, Kip v. 
 
 Howk ». EcKERT, 2 Hun, 113 ; p. 253 (de- 
 fense). 
 
 Howland v. Eldridge, 43 N. Y. 457 ; p. 
 448 (mandamus). 
 
 V. LouNDS, 51 N. Y. 604 ; pp. 13 (ac- 
 tions) 656 (reward). 
 
 , People ex rel. American Lm. Thread 
 
 Co. V. 
 
 , Shellington v. 
 
 , V. Taylor, 53 N. Y. 627 ; p. 68 (app.) 
 
 , Van Veghten v. 
 
 V. Woodruff, 60 N. Y. 73 ; pp. 49 (ap- 
 peal), 346 (factor). 
 
 Howh'.tt, Killmore v. 
 
 Hoy v. Duncan, 33 N. Y. Supr. 555 ; p. 617 
 (practice). 
 
 , Graham v. 
 
 HoYLE V. Platts. and Mont. R. R. Co., 54 
 N. Y. 314 ; reversing 51 Barb. 45 ; pp. 
 133 (chat, mort.) 349 (fixtures), 640 (R. 
 R.Co.) 
 
 Hoyt v. Baker, 15 Abb. N. S. 405 ; pp. 104 
 (b.Ji. purchaser), 735 (warehouseman), 
 
 V. BoNNETT, 50 N. Y. 538 ; reversing 
 
 58 Barb. 529 ; p. 343 (exrs. and adm.) 
 
 , dusenbury v. 
 
 , Jarvis v. 
 
 V. Long Island R. R. Co., 57 N. Y. 
 
 678 ; pp. 41 (app.) 324 (evid'enoe). 
 
 V. Spragub, 61 Barb. 497 ; p. 18 (ac- 
 tion). 
 
 V. Terwilliger, 12 Abb. N. S. 129 ; 
 
 p. 54 (appeal). 
 
 , townsbnd v. 
 
 , Weeks v. 
 
 Hubbard, Fassin v. 
 
 , Holmes v. 
 
 V. Matthews, 54 N. Y. 43 ; pp. 93, 96 
 
 (bills and notes), 276 (estoppel). 
 
 , Matthews v. 
 
 , Washburn v. 
 
 Hubbell v. Alden, 4 Lans. 214 ; pp. 64 
 (appeal), 330 (evidence). 
 
 , Fisher v. 
 
 , Grant v. 
 
 V. Lerch, 58 iV. Y. 237 ; affg. 62 Barb. 
 
 295 ; p. 545 (pleading). 
 
 V. Medbury, 53 N. Y. 98 ; pp. 441 
 
 (liin. of action), 719, 720 (trust). 
 
 V. Meigs, 50 JV. Y. 480 ; pp.43, 64 (ap- 
 peal), 239 (dam.), 291 (evidence), 455 
 (fraud). 
 
 V. MouLSON, 53 N. Y. 225 ; pp. 265 
 
 (ejectment), 473 (mortgage). 
 
 V. ScHREYER, 56 N. Y. 604 ; 15 Abb. 
 
 N. S. 300 ; reversing 4 Daly, 362 ; 14 
 Abb. y. S. 284 ; pp. 55 (appeal), 458, 
 461, 462 (mechs. lien), 689 (statute). 
 
 V. Sibley, 5 La'hs. 51 ; affd. 50 N. Y. 
 
 468 ; pp. 438 (limitation of action), 474, 
 
 475 (mortgage). 
 V. Von Schoening, 49 iV. Y. 326 ; pp. 
 
 679 (spec, perf . ), 727 (vend, and pur. ) 
 
 u. , 2 Hun, 376 ; pp. 679 (spec. 
 
 perl), 727 (vend, and purch'r.) 
 
 HuBER V. People, 44 How. 375 ; 49 N. Y. 
 
 132 ; pp. 144 (const, law), 677 (special 
 
 sessions). 
 Hudson Avenue, In matter of, 2 Hun, 
 
 580 ; p. 199 (costs). 
 Hudson v. Caryl, 44 JV. Y. 558; p. 151 
 
 (constitutional law). 
 V. Smith, 39 N. Y. Supr. 452; pp. 274 
 
 (estoppel), 354 (former adjudication). 
 Hudson City Savings Inst., In matter 
 
 OP, 5 Hun, 612 ; pp. 205 (county ct.), 
 
 685 (statute), 703 (taxes). 
 Hudson Iron Co. v. Alger, 54 N. Y. 173 ; 
 
 p. 9 (action). 
 Hudson Riv. R. R. Co., Arnold v. 
 
 , Bailey v. 
 
 , Barker v. 
 
 , BOICE V. 
 
 , Hedges v. 
 
 , Johnson v. 
 
 , Larned v. 
 
 -^ , Ludlow v. 
 
 , Moonby v. 
 
 , Nelson v. 
 
 , Priest v. 
 
 , Ryan v. 
 
TABLE OF CASES. 
 
 823 
 
 , Van ScHAiCK v. 
 
 Hudson Riv. Steamboat Co., Milton v. 
 
 Hudson Riv. West Shore R. R. Co. v. 
 Kay, 14 Abb. N. S. 191 ; pp. 13 (ac- 
 tion), 188 (Corp.), 571, 626 (practice). 
 
 HUENEEMUND V. ErIE RAILWAY Co., 48 
 
 How. 55 ; pp. 17 (action), 420 (jurisd.) 
 
 Hupp u. Wagner, 63 Barb. 215; pp. 99 
 (bills and notes), 302 (evidence). 
 
 Huppstater, Hayes v. 
 
 V. Hayes, 64 Barb. 573 ; p. 542 (pay- 
 ment). 
 
 V. People, 5 Hun, 23 ; p. 226 (criminal 
 
 law). 
 
 Hughes, Burger v. 
 
 — — , Cole v. 
 
 , Daubney v. 
 
 V. Mercantile Mut. Ins. Co., 41 How. 
 
 253; 10 Abb. N. S. 37; p. 51 (appeal). 
 
 V. , 44 How. 351 ; aflBrmed 55 N. 
 
 Y. 265 ; pp. 21 (action), 319 (evidence), 
 411, 412 (insura.nce). 
 
 V. New York and N. Haven R. R. 
 
 Co., 36 N. Y. Supr. 222 ; pp. 3C4 (evi- 
 dence), 457 (master and servant). 
 
 , Pendleton v. 
 
 ■ , Powers v. 
 
 , Sands v. 
 
 HuGHiTT, PfeoPLE ex rel. Delapield v. 
 
 Hulbert, Dusenburt v. 
 
 ■ , People, ex rel. White v. 
 
 Hull v. L'Eplattineb, 49 How. 500; p. 
 156 (contempt). 
 
 V. RuGGLBS, 65 Barb. 432; affirmed 56 
 
 N. Y. 424; p. 443 (lottery). 
 V. Spratt, 1 Hun, 298; pp. 416 (judg- 
 ment), 480 (mortgage). 
 
 V. Stevenson, 13 Abb. N. S. 196 ; pp. 
 
 207 (covenant), 429 (land, and tenant). 
 
 Hultslander v. Thompson, 5 Hun, 348; 
 p. 438 (lim. of actions). 
 
 Hume v. Mayor, etc. New York, 47 N. 
 Y. 639; pp. 485 (mun. corporation), 502 
 (neg.) 
 
 HuMisTON V. Ballard, 63 Barb. 9; pp. 68 
 (appeal), 196 (costs). 
 
 Humphrey, Baldwin v. 
 Humphreys v. Humphreys, 49 How. 140; 
 p. 453 (mar. and div.) 
 
 V. Hurst, 3 Hun, 216; p. 621 (pract.) 
 
 HuNEKE, Meyer v. 
 
 HuNN, Anderson v. 
 
 Hunt v. Brennan, 1 Hun, 213; p.. 571 
 (practice). 
 
 V. Chapin, 6 Lans. 139; pp. 535 (part- 
 nership), 631 (prin. and agt.) 
 
 V. Chapman, 51 N. Y. 555; p. 553 
 
 (pleading). 
 
 V. , 49 How. 377; pp. 39 (appeal), 
 
 203 (costs). 
 
 , Dalrymplb v. 
 
 V. Hunt, 58 N. Y. 666 ; reversing 65 
 
 Barb. 577 ; pp. 368 (guardian and ward), 
 609 (practice). 
 
 V. Johnson, 44 N. Y. 27; pp. 243, 244 
 
 (deed), 286 (evid.), 377 (husb. and wife). 
 
 , Miller v. 
 
 , Pitts v. 
 
 V. Roberts, 45 N. Y. 691; p. 637 (prin- 
 cipal and surety). 
 
 Hunter v. American Pop. Life Ins. Co., 
 4 Hun, 794; p. 579 (practice). 
 
 , BOWEN V. 
 
 ^ V. Hook, 64 Bari. 468; p. 101 (bills and 
 
 notes). 
 
 V. Wetsell, 57 N. Y. 375 ; p. 362 
 
 (frauds, stat. of). 
 
 , Wright v. 
 
 Huntington v. Dinsmore, 4 Hun, 66 ; p. 
 
 115 (carrier). 
 
 , Spratt v. 
 
 HuPFBL V. ScHOENiNG, 34 N. Y. Supr. 476; 
 
 pp. 622 (practice), 686 (statutes). 
 
 HUKD, COCKEY V. 
 
 V. Gill, 45 N. Y. 341; p. 166 (contract). 
 
 V. Tallman, 60 Barb. 272 ; p. 193 
 
 (corporations). 
 
 HuRTT, Humphreys v. 
 HusoN, Barnes v. 
 
 V. Young, 4 Lans. 63 ; pp. 263 (ease- 
 ment), 592 (practice). 
 
 HussKY, Palmer v. 
 
 Hutchings v. Miner, 46 N. Y. 456 ; pp. 22 
 
 (action), 160 (contract). 
 HuTCHiNS V. Merrill, 1 Hun, 476; p. 751 
 
 (will). 
 , Monteait v. 
 
 V. Smith, 63 Barb. 251 ; pp. 387 (inj.), 
 
 524, 525 (nuisance), 599 (practice). 
 
 Hutchinson, Babcock v. 
 
 HuTTER V. Elwangee, 4 Lans. 8; p. 74 
 
 (assignment). 
 Hyatt v. Allen, 56 N. Y. 553; p. 167 
 
 (contract). 
 
 , Rowan v. 
 
 , Van Slyke v. 
 
 Hyde, Kjstapp v. 
 , Leggett v. 
 
824 
 
 TABLE OF CASES. 
 
 I. 
 
 Ihl v. Foety-Second St. and G-kand St. 
 
 Ferry R. R. Co., 47 N. Y. 317; pp. 498, 
 
 501 (negligence). 
 Imperial Fire Ins. Co., McHugh v. 
 Importers and Trad. Bank, Dutcher v- 
 
 , Friend i . 
 
 Indemnity Fire Ins. Co., Waking, v. 
 Ind., B. & West. Ry. Co., Risley v. 
 Ind. Line of Telegraph, Rittenhottse v. 
 Indiana Nat. Bank v. Colgate, 4 Daly, 41 ; 
 
 pp. 141 (consignor, etc.), 661 (sale). 
 Indianapolis, P. & Chi. R. R. Co. v. Tyng, 
 
 48 How. 193; 2 Hun, 311; pp. 242 (de- 
 ceit), 316 (evidence). 
 Industrial Ex. Co., Cont. BankN. Co. v. 
 Ingbrsoll, Havbmeyer v. 
 
 , People v. 
 
 , Rathbitn v. 
 
 V. Roe, 65 Barh. 846; pp. 97 (bills and 
 
 notes), 174 (contract), 593 (practice). 
 
 , Townsend v. 
 
 Ingkaham, Matter or, 4 Hun, 495; pp. 
 
 242 (dedication), 513, 515 (N. Y. city). 
 V. DisBOROUGH, 47 N. Y. 421; p. 472 
 
 (mortgage). 
 
 , SCHENK V. 
 
 Ingram v. Young, 1 Hun, 487; p. 635 princi- 
 pal and agent). 
 
 Ingles, Walrath v 
 
 Inman, Lowry v. 
 
 Innes v. Purcell, 1 Hun, 318; affd. 58 N. 
 Y. 388; p. 58 (appeal). 
 
 Inspectors Com. Schools, People ex rel. 
 Harnett v. 
 
 Ins. Co. op N. America v. Gardner, 39 
 N. Y. 543; p. 63 (appeal). 
 
 , Hall v. 
 
 International L. Ass. Socy. of London, 
 
 Martin v. 
 Ireland, Frantz v. 
 
 — V. Nichols, 2 Sweeny, 289 ; affirmed 46 
 
 N. Y. 418; pp. 428 (land, and ten.), 734 
 
 (waiver). 
 Irbmongek, Nichols v. 
 Irish, Miller v. 
 Irvin, Fearing v. 
 
 — , Litchfield v. 
 Irvine w Milbank, 15 Ahh. N. S. 378; 56 
 
 N. Y. 635; affirming 14 Ahh. N. S. 408 ; 
 
 36 N. Y. Supr. 264; p. 650 (release). 
 V. Wood, 51 N. Y. 224; affirming 4 
 
 Boh. 138. See Digest, vols. i. and ii. 
 Irving, Williams v. 
 Irwin, McQuade v. 
 V. N. Y. Cent. & Hud. R. R. Co., 59 
 
 N. Y. 653; p. 121 (carrier). 
 Isaacs v. Daly, 39 N. Y. Supr. 511; p. 387 
 
 (injunction). 
 
 , Hockstetter v. 
 
 , Smith v. 
 
 V. Third Ave. R. R. Co., 47 N. Y. 
 
 122; p. 457 (master and servant). 
 Isbtt, Lyon v. 
 ISHAM V. Buckingham, 49 N. Y. 216 ; p. 277 
 
 (estoppel). 
 W.Davidson, 52 N. Y. 237; pp. 48 
 
 (appeal), 553 (pleading). 
 
 V. , 1 Hun, 114; p. 253 (defense). 
 
 V. Phelps, 54 N. Y. 673; p. 464 (money 
 
 had, etc.) 
 V. Schafer, 60 Barh. 317 ; pp. 291 
 
 (evidence), 359 (frauds, statute of). 
 ISMAY, Heimburg v. 
 Ives, Adams v. 
 
 J. 
 
 Jackson v. Andrews, 59 N. Y. 244; pp. 172 
 
 (contract), 598 (practice). 
 V. Brookins, 5 Hun, 530; p. 14 (action), 
 
 136 (civil damage act) . 
 
 , Henderson v. 
 
 , House v. 
 
 V. Littkll, 56 N. Y. 108 ;'p. 480 (mort.) 
 
 , Powers v. 
 
 V. Second Ave. R. R. Co., 47 N. Y. 
 
 274; pp. 593 (pract.),632 (prin. & agt.) 
 , Suydam v. 
 
 , Tbenor v. 
 
 V. Van Slyke, 52 N. Y. 645 ; pp. 58 
 
 (appeal), 822 (evidence). 
 Jacobs, Matter of, 12 Ahb. N. S. 273 ; p. 
 
 398 (insolvent debtors). 
 , Matter op, 49 How. 370; pp. 158 
 
 (contempt), 369 (hab. corp.) 
 
 , Dale v. 
 
 V. Morange, 47 N. Y. 57 ; p. 273 
 
 (equity). 
 , People ex rel. Woolp v. 
 
TABLE OF CASES. 
 
 825 
 
 , WOOLF V. 
 
 Jac'oby v. Johnston, 1 Hun, 242; p. 577 
 
 (practice). 
 
 , Oeetel v. 
 
 Jaeger u. Kelly, 44 How. 122; pp. 238 
 
 (damages), 307 (evidence), 588 (pract.) 
 
 V. Kelly, 52 N. Y. 274; p. 588 (pract.) 
 
 Jaffe v. Haktbatt, 56 iV. Y. 898; affirming 
 
 14 Abb. N. S. 263 ; pp. 433 (landlord 
 
 and tenant), 492 (negligence). 
 James, Brodekick v. 
 
 , Cox, V. 
 
 V. GuRLEY, 48 N. Y. 168; p. 672(sli'fE.) 
 
 V. Hamilton, 2 Hun, 630 ;p. 658 (sale.) 
 
 , Harley v. 
 
 , McDonald v. 
 
 , Oddy v. 
 
 , O'Neill v. 
 
 , Penfibld v. 
 
 , Stewart v. 
 
 , Walbkidge v. 
 
 Jameson v. Brooklyn Skating Rink Ass., 
 
 54 N. Y. 673 ; p. 46 (appeal). 
 
 , Cole v. 
 
 Jacques, Elmore v. 
 
 Jaraslauski, Claflin v. 
 
 Jar VIS, Garvey v. 
 
 V. Mayor, etc. of New York, 49 How. 
 
 354; pp. 206 (common pleas), 509 (N. Y. 
 
 city), 556 (pleadings). 
 V. Pike, 11 Abb. N. S.S98; p. 559 
 
 (pleading). ' ■ ■.« 
 Jay v. DeGroot, 1 Hun, 118; p. 64 (appeal.) 
 V. , 2 Hun, 205; pp. 354 (former 
 
 adjudication), 395 (ins. co.) 
 Jaycox v. Caldwell, 51 N. Y. 895; affg. 
 
 37 How. 240. See Digest, vol. iv. 
 V. Cameron, 49 N. Y. 645; pp. 43 
 
 (appeal), 464 (money had). 
 V. PiNNEY, 62 Barb. 344; p. 428 (jus- 
 tice court). 
 
 , PURCELL V. 
 
 Jayne, Bookstaver V. 
 
 , Denham v. 
 
 Jf.ffeeds, People ex rel. Nelson v. 
 
 Jefferson Co. Court, People ex rel. 
 Parker v. 
 
 Jeffras v. McKillop & Speague Co., 48 
 How. 122 ; 2 Hun, 351 ; pp. 51 (appeal) , 
 556 (pleading). 
 
 Jefpres v. Cochrane, 48 iV. Y. 671; p. 103 
 ( bona fide purchaser) . 
 
 Jbnks v. Brown, 4 Hun, 128 ; p. 460 (me- 
 chanic's lien). 
 
 V. Parsons, 2 Hun, 667 ; p. 550 (p'ings.) 
 
 V. Robertson, 58 N. Y. 621; p. 177 
 
 (contract). 
 
 Jenkins, Duanesburgh v. 
 
 Jennings, George v. 
 
 Jerome, Carson v. 
 
 , Stenton v. 
 
 Jersey City Ins. Co., Ludwig v. 
 
 Jervis v. Hoyt, 2 Hun, 637; p. 638 (princi- 
 pal and agent). 
 
 Jesup, Charlotte, Columbia & Augusta 
 R. R. Co. V. 
 
 Jewell v. Van Stbbnburgh, 58 N. Y. 85; 
 pp. 49 (appeal), 139 (common school), i 
 284, 334 (evidence). } 
 
 Jex v. Board of Education of N. Y. 
 CITY, 1 Hun, 157 ; p. 814 (evidence). 
 
 — ■ — , Harris v. j 
 
 Johnson v. Ackerson, 8 Daly, 430; pp. 148 , 
 (con. law), 544 (pleading), 721 (undert.) i 
 
 V. Albany & Susq. R. R. Co. , 5 Lans. 
 
 222; affirmed 54 N. Y. 416; pp. 188 
 (corporation), 354 (former adjudication); i 
 488 (lim. of action). 
 
 , Alger v. 
 
 V. Belden, 47 N. Y. 130 ; affirming 2; 
 
 ians. 433. See Digest vol. iv. 
 
 , Blydenburgh v. 
 
 , Bowers v. 
 
 , Comstock v. 
 
 V. DePeyster, 50 N. Y. 666 ; pp. 46 
 
 (appeal), 824 (evidence). 
 
 , V. DoDD, 56 -ZV^. Y. 76 ; pp. 69 (appren- 
 tice), 694 (superintendent of poor). 
 
 , Elwell v. 
 
 V. Elwood, 58 N. Y. 481 ; pp . 187 (claim 
 
 and del.), 289, (evidence), 701 (taxes). 
 
 V. IElwood, 56 N.Y. 614 ; p. 596 (pract.) 
 
 V. Fribl, 50 N.Y. 679 ; p. 490 (negl.) 
 
 V. Habtshorne, 52 N.Y. 178; pp. 538, 
 
 539 (partnership). 
 
 -, Hathaway v. 
 
 v. Hudson Riv. R. R. Co., 2 Sweeny, 
 
 298 ; p. 542 (penal action). 
 
 V. Hudson Riv. R. R. Co., 49 N. Y. 
 
 455; p. 690 (statutes). 
 
 , Hunt v. 
 
 , Jacobs v. 
 
 V. Kelly, 2 Hun, 139; p. 547 (plead.) 
 
 , KiNNE V. 
 
 , Lynch v. 
 
 V. Mulvy, 51 N. Y. 684 ; affirming 4 
 
 Rob. 401. See Digest, vol. i. & iii. 
 
 V. Oppbnheim, 43 How. 483 ; 12 Abb. 
 
 N. S. 449 ; 34 N. Y. Supr. 416 ; pp. 427, 
 431 (landlord and tenant), 594 (practice). 
 
 V. Oppbnheim, 55 N. Y. 280 ; affirming 
 
 43 How. 433 ; 12 Abb. N. S. 449; 34 N. 
 Y. Supr. 416; pp. 318 (evidence), 432 
 (landlord and tenant), 690 (statutes). 
 
826 
 
 TABLE OF CASES. 
 
 Johnson v. Oppbnheim, 35 N. Y. SuprAid ; 
 
 pp. 304 (evidence), 428 (landlord and 
 
 tenant), 
 
 , Palen v. 
 
 V. People, 55 N. Y. 512 ; affirming 65 
 
 Barb. 342 ; pp. 215, 230 (criminal law). 
 , Pike v. 
 
 - V. Reeves, 48 How. 505 ; p. 568 (pow.) 
 V. Richards, 8 Hun, 454; pp. 8 (action), 
 
 344 (executors and administrators). 
 
 -, Roberts u. 
 
 , Shaepe v. 
 
 V. Spies, 5 Hun, 468 ; pp. 805 (evidence), 
 
 366 (gift). 
 
 , Stokes v. 
 
 V. Underhill, 52 N. Y. 203 ; pp. 184, 
 
 190 (corporation), 465 (inoney had, etc.) 
 
 ; Van Liew v. 
 
 V. Whitman, 10 Ahh. N. S. Ill ; pp, 
 
 420 (jurisdiction), 613 (practice). 
 V. Williams, 39 N. Y. Supr. 547; p. 68 
 
 (appeal). 
 
 V. ZiNK, 51 N. Y. 338; affirming, 52 
 
 Barb. 396. See Digest, vol. iv. 
 
 Johnston v. Allen, 3 Daly, 43 ; p. 876 (hus- 
 band and wife). 
 
 V. Bush, 57 N. Y. 633; pp. 595, 597 
 
 (practice). 
 
 , Bush v. 
 
 V. Catlln, 57 N. Y. 652 ; p. 198 (costs)-. 
 
 Jones, Ackekman v. 
 
 V. Barlow, 38 N. Y. Supr. 142; pp. 16 
 
 (action), 192 (corporation). 
 
 V. Bridge, 2 Sweeny, 431 ; pp. 603 
 
 (practice), 673 (ships, etc.) 
 
 V. Butler, 51 N. Y. 658 ; p. 716 (trusts). 
 
 V. Chantry, 1 Hun, 613; p. 632 (prin- 
 cipal and agent). 
 
 V. DiEDERiCH, 3 Daly, 177 ; p. 621 
 
 (practice). 
 
 V. Fireman's Fund Ins. Co., 51 N. Y. 
 
 318; affirming 2 DaZi/, 307. See Digest, 
 
 vol. iv. 
 
 , Ford v. 
 
 , Goldsmith v. 
 
 , Home Ins. Co. v. 
 
 , Knox v. 
 
 V. MiLBANK, 6 Lans. 73; pp. 25 (action), 
 
 352 (former adjudication). 
 
 V. Norwood, 87 N. Y. Supr. 276 ; p. 
 
 561 (pleading). 
 V. O'Brien, 36 N. Y. Supr. 58 ; pp. 
 
 296 (evidence), 364 (frauds, statute of). 
 
 V. Owen, 5 Hun, 339; p. 66 (appeal.) 
 
 , People v. 
 
 V. ScHREYER, 49 N. Y. 674; p. 99 (biUs 
 
 and notes). 
 V. Sheldon, 50 N. Y. 477 ; pp. 128 
 
 (cattle), 685 (statutes). 
 
 V. Smith, 3 Hun, 351; p. 302 (evid.) 
 
 V. Terrb Haute & Richmond R. R. 
 
 Co., 57 JSr. Y. 196 ; affirming 29 Barb. 
 
 358 ; p. 186 (corporations). 
 JoRDON V. Kent, 44 How. 206 ; p. 90 (betting, 
 
 etc.) 
 JosLiN V. Co^^E, 52 N. Y. 90 ; revg. 60 Barb. 
 
 48 ; pp. 346 (factor), 664 (sale). 
 JosLYN V. Capron, 64 Barb. 598 ; p. 647 
 
 (receipt). 
 
 , Champion v. 
 
 V. , 56 N. Y. 626; pp. 42 (appeal), 
 
 177 (contract). 
 JosLYN V. Fisk, 59 Barb. 808 ; p. 695 (supr. 
 
 court). 
 V. Pacific Mail Steamship Co., 12 
 
 Abb. N. S. 329 ; pp. 148 (conatl. law), 
 
 889 (injunction). 
 JuDD, Byrn v. 
 
 , Richards v. 
 
 V. Smith, 8 Hun, 190; pp. 135 (check), 
 
 547 (pleading). 
 Judge v. Hall, 5 Lans. 69 ; pp. 205 (co. ct.), 
 
 545 (pleading). 
 Judson v. Easton, 58 N. Y. 664 ; pp. 184 
 
 (chat, mortg.), 826 (evid.), 583 (prac.) 
 
 , Miner v. 
 
 Juliand v. Watson, 43 N. Y. 571 ; p. 533 
 
 (partnership). 
 June, Betts v. 
 
 JusTH V. National Bank of the Common- 
 wealth, 56 N. Y. 478; affirming 45 
 
 How. 492; 36 iVr. Y. Supr. 273; pp. 98 
 
 (bills and notes), 466 (money had, etc.) 
 
 , Fink v. / 
 
 Justice v. Lang, 52 N. Y. 323; p. 593 
 
 (practice). 
 V. , 39 N. Y. Supr. 283 ; pp. 55 (app.), 
 
 598 (practice). 
 
 K. 
 
 Kadb v. Laubeb, 48 How. 882; p. 260 
 
 (dower). 
 Kahnu. NoKRiE, 4 Hun, 72; p. 200 (costs). | 
 
 Kain v. Delano, 11 Abb. N. S. 29; pp.. 35, 
 
 45 (appeal), 600 (practice). 
 V. DiCKEL, 46 How. 208; p. 561 (plead.) 
 
TABLE OF CASES. 
 
 827 
 
 Kaiser v. Hirth, 46 How. 161 ; 36 N. Y. 
 
 Supr. 344; pp. 431 (land, and tenant), 
 
 494 (negligence). 
 
 , Knothb v. 
 
 Kalbfleisch, Evans v. 
 
 , kobinson v. 
 
 , Wade v. 
 
 Kamerer, Knoop v. 
 
 Kamp u. Kamp, 44 How. 505; p. 453 (marr. 
 
 and div. ) 
 V. , 59 N. Y. 212; revg. 37 N. Y. 
 
 Supr. 241;.46 How. 143; pp. 453 (marr. 
 
 and div.), 625 (practice). 
 V. , 46 How. 143 ; 37 N. Y. Supr. 
 
 241; pp. 25 (action), 271 (equity), 453 
 
 (marr. and div.), 694 (supr. court). 
 Kamping, Gomez v. 
 Kapp, Bernhard v. 
 Kabnig, O'Blenis v. 
 Kabutz, Cesar v. 
 Kaufman, Keep v. 
 
 Kay, Hudson Riv. W. Shore K. R. Co. v. 
 V. Whittaker, 44 N. Y. 565 ; pp. 476, 
 
 477 (mortgage), 558 (pleading). 
 Kearney, Campbell v. 
 Keating, Cabpenter v. 
 V. New York Cent, and Hud. Riv. 
 
 K. R. Co., 49 N. Y. 673 ; affg. 3 Lans. 
 
 469. See Digest, vol. iv. 
 Kechler v. Stumme, 36 N. Y. Supr. 337 ; 
 
 pp. 462 (mechs. Uen), 549 (pleading). 
 Keck v. Werder, 37 N. Y. Supr. 219 ; pp. 
 
 59 (appeal), 506 (new trial). 
 Kbech, Habwood v. 
 
 , Livingston v. 
 
 Keeler, Hawley v. 
 
 , Spooner v. 
 
 V. Vandervbre, 5 Lans. "313 ; p. 662 
 
 (sale). 
 V. Van Wie, 49 How. 97 ; pp. 196 
 
 (costs), 541 (payment). 
 
 , VeBNOL I'. 
 
 Kbeley v. Erie Railway Co., 47 How. 
 
 256 ; p. 501 (negligence). 
 Kebney v. Geand Trunk Railway Co., 
 
 59 Barb. 104 ; affd. 47 N. Y. 525 ; pp. 
 
 120, 124 (carrier). 
 Keep v. Kauppman, 36 N. Y. Supr. 141 ; 
 
 affd. 56 N. Y. 332 ; p. 546 (pleading). 
 V. , 38 N. Y. Supr. 476 ; pp. 240 
 
 (damages), 503 (new trial). 
 Kbbsb, Rbbd v. 
 Kbil, Lawton v. 
 Kein v. Tuppee, 52 N. Y. 550 ; revg. 42 
 
 How. 437 ; 33 iV. Y. Supr. 465; pp. 658, 
 
 662, 668, 666 (sale). 
 
 Keith, Chism v. 
 
 Kellab v. RicHAEDSON, 5 Huti, 352; p. 308 
 (evidence). 
 
 Keller, Eisneb v. 
 
 Kbllby v. People, 55 JSf. Y. 565 ; pp. 218, 
 221, 222 (criminal law). 
 
 , Wright v. 
 
 Kellinger v. Forty-Second St. R. R. Co., 
 50 N. Y. 206 ; p. 514 (N. Y. city). 
 
 Kellogg, Bissbll v. 
 
 , Butler v. 
 
 V. Howell, 62 Barb. 280; p. 481 (mort- 
 gage). 
 
 V. Murphy, 54 N. Y. 685; p. 663 (sale). 
 
 V. Sweeney, 46 N. Y. 291 ; modifjdng 
 
 1 Lans. 397 ; p. 608 (practice). 
 
 Kellum, In matter of, 50 N. Y. 298 ; re. 
 versing 6 Lans. 1; pp. 686 (statutes), 
 739 (wills). 
 
 , In matter of, 52 N. Y. 517 ; p. 739 
 
 (wills). 
 
 Kelly, In matter op, 3 Hun, 636 ; pp. 
 156 (contempt), 196 (costs). 
 
 V. , 59 N. Y. 595 ; pp. 87 (appeal), 
 
 196 (costs). 
 
 Kelly v. Babcock, 49 JST. Y. 318 • p. 618 
 (practice). 
 
 , Bbuce v. 
 
 , Carman v. 
 
 , Cabow v. 
 
 , Cohen v. 
 
 V. Crapo, 45 N. Y. 86 ; revg. 41 Barb. 
 
 603 ; pp. 76 (attachment), 87 (bank- 
 ruptcy). 
 
 V. Donohue, 47 How. 62 ; 1 Hun, 112 ; 
 
 pp. 313 (evidence), 576 (practice). 
 
 , Downing v. 
 
 V. Falconee, 45 N. Y. 42 ; p. 650 (re- 
 demption). 
 
 V. Fall Brook Coal Co., 4 Hun, 261; 
 
 p. 630 (principal and agent). 
 
 V. Ferguson, 40 How. 411 ; pp. 92 
 
 (bills and notes), 321 (evidence). 
 
 , First National Bank of Cincin- 
 nati V. 
 
 , Jaeger v. 
 
 , Johnson v. 
 
 V. Kelly, 5 Lans. 443 ; pp. 257 (de- 
 scent), 752 (will). 
 
 , Klinck v. 
 
 V. Mabiposa L. and M. Co. , 4 Hun, 
 
 632; p. 189 (corporation). 
 
 , Palmee v. 
 
 , Benton v. 
 
 V. Scott, 49 N. Y. 595; pp. 276 (estop- 
 pel), 534 (partnership). 
 
828 
 
 TABLE OF CASES. 
 
 , Starin v. 
 
 , Starkbyw. 
 
 , Stillwell v. 
 
 Kelly v. Taintok, 4 How. 270; p. 436 (libel.) 
 
 , Taylor v. 
 
 V. West, 36 N. Y. 304; p. 706 (tender). 
 
 Kels, Lake v. 
 
 Kelsey, Lamb v. 
 
 V. Northern Light Oil Co., 45 N. Y. 
 
 505; pp. 592 (pract.), 632 (prin. & agent.) 
 Kelty v. Long, 1 Hun, 714; pp. 379 (hus. 
 
 and wife), 549 (pleading). 
 Kemp, Nash v. 
 Kemplb v. Daerow, 39 N. Y. Supr. 447; pp. 
 
 56, 64 (appeal), 169 (con.), 235 (damgs.) 
 Kempner, In matter of, 43 flbso. 129; pp. 
 
 88, 89 (bankruptcy). 
 Kendall v. Miller, 47 How. 446 ; p. 751 
 
 (will). 
 
 KJENNA, KeNNBDT, V. 
 
 Kennedy v. Barandon, 4 Hun, 642 ; p. 210 
 (cred. bill). 
 
 , Barry v. 
 
 , Green v. 
 
 V. Kbnna, 49 How, 308; p. 601 (pract.) 
 
 V. Simmons, 1 Hun, 603; pp. 205 (county- 
 judge), 614 (practice). 
 
 V. Thorp, 51 JV. Y. 174 ; reversing 2 
 
 Daly, 258; p. 618 (practice). 
 
 Kenney v. Hinds, 44 How. 7; pp. 92 (bills 
 and notes), 294 (evidence). 
 
 Kennby Set. Cheese Ass'n., Brown v. 
 
 Kenny, People ex rel. Toll v. 
 
 V. Planer, 3 Daly, 131; pp. 329 (evid.), 
 
 664 (sale). 
 
 Kent, Jordan u. 
 
 V. Kent, 1 Hun, 529 ; pp. 179 (contract), 
 
 287 (evidence). 
 
 , Youngs v. 
 
 Kenyon, Bbebe v. 
 
 V. N. Y. Cent, and Hud. Riv. R. R. 
 
 Co., 5 Hun, 479; p. 498 (negligence). 
 
 Keokuk Coal Co., Thorp v. 
 
 Kerry v. Daly, 45 N. Y. 84 ; p. 458 (me- 
 chanic's lien). 
 
 Kerohbis v. Schloss, 49 How. 284 ; p. 75 
 (assignment forbenefit). 
 
 KerjiIit, Poole v. 
 
 Kebn v. Rachow, 12 Abb. K. S. 352; 34 
 N. Y. Supr. 239; pp.615, 616 (pract.) 
 
 V. Rackow, 44 How. 443; p. 616 (pract.) 
 
 Kbrner v. LBONAiiD, 15 Abb. N. S. 96; p. 
 570 (practice). 
 
 , Mansfield v. 
 
 Kerr u. Blodgbtt, 48 N. Y. 62; p. 354 
 (former adjudication). 
 
 , DOLSON «. 
 
 -, Nelson v. 
 
 V. PuRDY, 51 N. Y. 629 ; rerersing 50 
 
 Barb. 24; p. 679 (spec, per.) 
 Kerrains u. People, 60 N. Y. 221; pp. 
 
 217, 224 (crim. law), 425 (landlord and 
 
 tenant), -706 (tenant at will). 
 Kbrslakb v. Schoomaker, 1 Hun, 436 ; pp. 
 
 602 (practice), 629 (prin. and agent.) 
 Kessel v. Butler, 33 N. Y. 612 ; pp. 303, 
 
 331 (evidence). 
 Kessler, American Medicine Co. v. 
 V. New 'York Central R. R. Co., 7 
 
 Lans. 62; p. 125 (carrier). 
 
 , Weston v. 
 
 Ketcham u. Teoxell, 49 N.Y. 677 ; p. 250 
 
 (defense). 
 Kbtbltas, In matter op, 48 How. 116 ; 2 
 
 Hun, 221 ; p. 516 (N. Y. city). 
 
 , Horn v. 
 
 Kbyes, Arnold v. 
 
 , Murphy v. 
 
 , Price u. 
 
 KiAH, Bean u. 
 
 V. Grenier, 56 N. Y. 220; pp. 743, 745, 
 
 749 (will). 
 KiDD, Church u. 
 
 V. Conway, 65 Barb. 158; p. 380 (hus- 
 band and wife). 
 Keifer v. Winkens, 3 Daly, 191 ; p. 53 
 
 (appeal). 
 Kibrnan, In matter of, 3 Hun, 623; p. 113 
 
 (Brooklyn). 
 Kibrnan v. Abbott, 1 Hun, 109 ; p. 157 
 
 (contempt). 
 
 , Kinney v. 
 
 Kibbsted, Christy v. 
 
 V. Orange and Alex. R. R. Co., 44 
 
 Hvw. 379 ; p. 51 (appeal) . 
 V. , 1 Hun, 151; p. 426 (landlord and 
 
 tenant). 
 
 KlFF, DUMOND V. 
 
 KiLBOURNB V. Allyn, 7 Lans. 852 ; p. 392 
 (injunction). 
 
 u. St. John, 59 N. Y. 21; pp. 28 (ac- 
 tion), 392 (injunction). 
 
 Kilburn u. Coe, 48 How. 144 ; pp. 14 (ac- 
 tion), 335 (excise). 
 
 KiLLEEN, Bo DINE V. 
 
 KiLLip «. Metzen, 50 N. Y. 658 ; p. 164 
 
 (contract) . 
 Killmore v. Howlett, 48 N. Y. 569 ; p. 
 
 360 (frauds, statutes of). 
 Kilmer, Ferris v. 
 Kimball, Grover and Baker Sewing 
 
 Machine Co. v. 
 
TABLE OF CASES. 
 
 829 
 
 , Reeves v. 
 
 , RiGHTMIRE V. 
 
 KiMLER, FrAZER v. 
 
 KiNCAiD V. DwiNBLLE, 59 N. Y. 548 ; affirm- 
 ing 37 N. r. Supr. 326; pp. 190, 191, 193 
 (corporation). 
 
 King, Burling v. 
 
 V. Galvin, 4 Hun, 258 ; p. 16 (action). 
 
 V. Knapp, 59 N. Y. 462 ; p. 729 (ven- 
 dor and purchaser). 
 
 0. LrEiGHTON, 58 N. Y. 383; p. 577 
 
 (practice). 
 
 V. Macon and Western R. R. Co., 
 
 62 Barb. 160; p. 121 (carrier). 
 
 Marks v. 
 
 V. New York Cent, and Hud. Riv. 
 
 R. R. Co., 4 Hun, 769 ; p. 455 (master 
 
 and servant). 
 V. O'Brien, 33 iVr. Y. Supr. 49; pp. 299 
 
 (evidence) , 378 (husband and wife). 
 
 , OXLEY V. 
 
 V. People, 5 Hun, 297; pp. 210, 217, 
 
 231 (criminal law). 
 , Saratoga County Bank v. 
 
 V. Whalet, 59 Barb. 71 ; pp. 61 (ap- 
 peal), 281, 315 (evidence), 717 (trust). 
 
 , Wilson v. 
 
 Kingdom Iron Orb Co. of Lake Cham- 
 plain, Nichols v. 
 KiNGON, Daily v. 
 
 KlNGSBRIDGE ROAD, In MATTER OP, 4 Hun, 
 
 599; 5 id. 146; p. 53, 57 (appeal), 484, 487 
 
 (municipal corp.), 514 (N. T. city). 
 Kingsbury, Porter v. 
 King's County Fire Ins. Co., Knoeppel v. 
 King's County Manup'g Co., Payne v. 
 KiNGSLAND V. Chittenden, 6 Lans. 15 ; p . 
 
 61 (appeal), 246 (deed), 293 (evidence). 
 KiNGSLEY, Bradley v. 
 KiNNE V. Ford, 43 N. Y. 587 ; affg. 52 
 
 Barb. 194. See Digest, vol. iv. , 349, 686. 
 V. Johnson, 60 Barb. 69 ; p. 739, 740 
 
 (wUl). 
 
 V. KiNNE, 45 How. 61 ; pp. 91 (bills and 
 
 notes), 380 (husband and wife). 
 
 Kinney v. Kiernan, 49 N. Y,. 164 ; revg. 2 
 Lans. 492; pp. 250 (defense), 664 (sale). 
 
 , Pierce v. 
 
 V. PuDNEY, ^6 How. 258; p. 66 (appeal). 
 
 KiNNiER V. Kinnier, 45 N. Y. 535 ; affg. 58 
 Barb. 424. See Digest, vol. iv., 71, 483, 
 484. 
 
 Kip v. Howes, 2 Sweeny, 106; p. 629 (princi- 
 pal and agent). 
 
 V. Mekwln, 34 N. Y. Supr. 531; afid. 
 
 52 N. Y. 542 ; p. 432 (land, and ten.) 
 
 , New York and Harlem R. R. Co. v. 
 
 Kipp V. Brandt, 49 How. 358 ; p. 479 (mort.) 
 
 , Dempsey v. 
 
 V. Meyer, 5 Hun, 111; p. 663 (sale). 
 
 KiRCHER, Thomas v. 
 
 Kirk v. Blashfield, 4 Hun, 269; p. 353 
 
 (former^adj.) 
 
 , Garfield v. 
 
 Kirke, Harrison v. 
 
 KiRKLAND V. DmsMORE, 2 Hun, 46; p. 115 
 
 (carrier). 
 
 V. Leary, 2 Sweeny, 677; p. 236 (dam.) 
 
 KiRKWOOD V. Griffin, 64 Barb. 566 ; p. 67 
 
 (appeal). 
 KiRSCHMAN V. Lediard, 61 Barb. 573; pp. 
 
 166 (contract), 233 (damages). 
 
 KiRTLAND, GrINNELL V. 
 
 V. ScHANCK, 61 Barb. 348; p. 357 
 
 (fraud). 
 KissAMu. DiERKES, 49 N.Y. 602; p. 720 
 
 (trusts). 
 
 KiBSICK, SiMONSON V. 
 
 Kissinger v. New York & Harlem R. R. 
 
 Co., 56 N. Y. 588; p. 493 (negligence). 
 Kittell v. Osborn, 1 Hun, 613; p. 717 
 
 (trusts). 
 Klein v. Hamburg & Am. Packet Co., 3 
 
 Daly, 390; p. 126 (carrier). 
 
 , Havens v. 
 
 V. Klein, 42 How. 166; 11 Abb. N. S. 
 
 450; 34 N. Y. Supr. 48; pp. 560, 561 
 
 (pleading)., 
 Klein, Reuscher v. 
 Klinck a. Kelly, 63 Barb. 622 ; pp. 182 
 
 (conversion), 660 (sale). 
 V. , 15 Abb. N. S. 135 ; pp. 199, 
 
 201 (costs). 
 
 , Mendenhall v. 
 
 Klink v. Colby, 46 N. Y. 427 ; pp. 435, 437 
 
 (libel). 
 Klugman's Case, 49 How. 484; p. 158 
 
 (contempt). 
 Knapp v. Altmayer, 33 N. Y. Supr. 161 ; p. 
 
 300 (evidence). 
 
 , Beadlbson v. 
 
 V. Brown, 11 Abb. N. S. 118; 45 N. Y. 
 
 207; pp. 60 (appeal), 458 (mechanic's 
 
 lien), 733 (waiver). 
 V. Conger, 59 N. Y. 635; p. 481 (mort.) 
 
 , CORLIN V. 
 
 V, Hyde,'60 Barb. 80 ; p. 253 (defense). 
 
 , King v. 
 
 V. Meigs, 11 Abb. JST. S. 405 ; p. 618 
 
 (practice). 
 
 , Murray v. 
 
 , Porter v. 
 
830 
 
 TABLE OF CASES. 
 
 Knapp v. Eochb, 37 N. Y. Supr. 395; pp. 56 
 (appeal), 180 (conv.),.565, 566 (plead.) 
 
 V. Towsr or Newtown, 1 Hun, 268; 
 
 pp. 145 (const, law), 708 (towns). 
 
 V. Waknek, 57 N. Y. 668 ; p. 317 (evid.) 
 
 Knell v. United States & Brazil Steam- 
 ship Co., 33 iV. Y. Supr. 423; pp. 117 
 (carrier), 296 (evid.), 629 (prin. & agent). 
 
 Knickerbocker v. People, 43 N. Y. 177 ; 
 affg. 57 Barb. 365; p. 225 (crim. law). 
 
 Knickerbocker Life I. Co. v. Eoolesine, 
 42 How. 201 ; 11 Abb. N. S. 385 ; 34 
 N. Y. Supr. 76 ; aflarming 6 Abb. N.S.9; 
 p. 436 (libel). 
 
 V. Hill, 2 Hun, 680; p. 63 (appeal). 
 
 V. , 3 Hun, 577 ; p. 725 (asury). 
 
 , Howell v. 
 
 , Leslie v. 
 
 , Parrott v. 
 
 , roehner v. 
 
 Knight v. Campbell, 62 Barb. 16 ; pp. 147, 
 151 (constitutional law). 
 
 r. Forward, 63 Barb.3U; pp. 297,314 
 
 (evid.), 364 (frauds, stat. of), 585 (prac.) 
 
 J/'. Moloney, 4 Hun, 33; p. 482 (mort.) 
 
 , Van Campen v. 
 
 , Wells v. 
 
 Kniskern, People ex rei. Odle v. 
 
 KiroEppEL V. King's County Fire Ins. Co. 
 47 How. 412; p. 626 (practice). 
 
 V. , 48 How. 208 ; afid. 39 N. Y. 
 
 Supr. 553; pp. 391 (injunction),. 426 
 (landlord and tenant). 
 
 Knoop u. Kamerer, 44 How.iiQ; p. 504 
 (new trial). 
 
 Knothb v. Kaiser, 2 Hun, 515; p. 368 
 (guardian and ward.) 
 
 Knowles, People ex rel. Allen v. 
 
 Knowlton v. Congress and Emp. Spring 
 Co., 57 iV. Y. 518; p. 467 (money paid). 
 
 V. Fitch, 52 N. Y. 288; p. 110 (broker). 
 
 V. Pierce, 41 How. 361; pp. 195 (costs), 
 
 610 (practice). 
 
 V. Providence and New York Steam- 
 ship Co., 33iV. Y. Supr. 370; p. 675 
 (ships, etc.) 
 
 V. , 53 iV. Y. 76; pp. 35 (appeals), 
 
 675 (ships, etc.) 
 
 Knox, Bush v. 
 
 5 Gilbert v. 
 
 , Hexter v. 
 
 V. Jones, 47 N. Y. 389 ; p. 742 (will). 
 
 , Melick v. 
 
 , Miller v. 
 
 KoBBE, Ayer v. 
 
 , Barnard v. 
 
 , Smith v. 
 
 KocK V. BoNiTz, 4 Daly, 117; pp. 4 (accts.), 
 
 33 (amendment). 
 Koelges v. Guardian Life Ins. Co., 57 N. 
 
 Y. 638; p. 593 (practice). 
 KoENiG V. Steckel, 58 N. Y. 475 ; affirming 
 
 36 N. Y. Supr. 167; p. 336 (execution). 
 
 KOHLBBEG, NeUDECKER V. 
 
 KoLGEES V. Guardian Life Ins. Co., 9 Abb. 
 
 N. 5.- 91; 10 Abb. N. S. 176; pp.409 
 
 (ins.), 593 (practice). 
 KoNiTZKY V. Mbyer, 49 N. Y. 571; pp. 354 
 
 (former adj.), 659 (sale). 
 Koop, BUNGE V. 
 KoRN, Heinrich v. 
 KowiNG V. Manley, 13 Abb. N. S. 276; 49 
 
 N. Y. 192; reversing bT Barb. 479; pp. 
 
 82 (bailment), 253 (defense), 294 (evid.), 
 
 376 (husband and wife) 
 Kraft, Cook v. 
 Kreitz, Hinckley v. 
 Krekbler, Rittbr v. 
 
 V. Thaulb, 49 How. 138; p. 79 (atty.) 
 
 Krenkle, Snodgrass v. 
 
 Kress, Doubleday v. 
 
 Kroemeke, Cook v. 
 
 Krohn, Alscheimer v. 
 
 Krom v. Levy, 47 How. 97 ; 1 Hun, 171 ; 
 
 pp. 176 (contract), 291 (evidence), 
 
 V. , 48 N. Y. 679; p. 234 (damages). 
 
 V. , 60 N. Y. 126 ; p. 35 (appeal). 
 
 Kropf, Richardson v. 
 
 Krubel, Crane v. 
 
 Krulder v. Ellison, 47 N. Y. 36 ; p. 661 
 
 (sale). 
 KuHNu. Brown, 1 Hun, 244; pp. 141 (con- 
 
 sidn.), 362 (frauds, stat. of). 
 
 , Proestler v. 
 
 , Wehrum v. 
 
 Kurkel v. Haley, 47 How. 75; pp. 262 
 
 (easement), 265 (ejectment). 
 Kyle ». Kyle, 3 Hun, 458 ; pp. 261 (dower), 
 
 344 (exrs. and adm.) 
 
 L. 
 
 Lachenmbyer, Pepin v. 
 Lacker w. Rhoades, 51 N. Y. 641; revg. 45 
 Barb. 499 ; p. 72 (assignment). 
 
 Ladd v. Arkell, 37 N. Y. Supr. 35 ; pp. 21 
 (action), 346 (factor), 560 (pleading), 
 007 (practice). 
 
TABLE OF CASES. 
 
 831 
 
 358 
 
 234 
 
 Ladtje 0. "Warner, 3 Hun, 547; p. 314 
 
 (evidence). 
 Lafayette, Wood v. 
 Lafayette Fire Ins. Co., Sxeinbach jj. 
 Lagrave, In matter of, 45 How. 301; 14 
 
 AU N. S. 333, n. ; pp. 346 (extract.), 370 
 
 (habeas corpus). 
 
 , Adriancb v. 
 
 , averill v. 
 
 , Bacharach v. 
 
 Laidlaw v. Gilmore, 47 How. 67; p. 
 
 (fraudt. conv.) 
 Laird v. Townsend, 5 Hun, 107; p. 
 
 (damages). 
 Lake v. Arnold, 44flb«). 832; p. 196 (costs). 
 
 , Bennett j'. 
 
 V. Kels, 11 Abb. N. S. 37; pp.65 (app.), 
 
 731 (waiver). 
 Lake Shore & Mich. Southern Ry. Co., 
 
 Babcock v. 
 
 , BORST V. 
 
 , Hayckoft v. 
 
 , Prouty v. 
 
 Lakbyu. Loomis, 2 Hun, 516; p. 593 (pract.) 
 
 Lakin,^ Hardenburgh v. 
 
 Lamb v. Camden & Amboy R. R. Co., 4 
 Daly, 483; p. 116 (carrier). 
 
 V. , 46 N. Y. 271; reversing 2 Daly, 
 
 454; pp. 117 (carrier), 298 (evidence). 
 
 , First National Bank of White- 
 hall V. 
 
 V. Kelsey, 54 N. y. 645 ; p. 355 (fraud). 
 
 , McKlNLEY V. 
 
 Lambden, Todd v. 
 
 V. Tyler, 2 Hun, 162 ;' p. 108 (broker). 
 
 Lamberson, In matter op, 63 Barb. 297; 
 
 p. 78 (attorney). 
 Lambert v. Leland, 2 Sweeny, 218; pp. 
 
 6 (action), 134 (chattel mortgage). 
 
 , Mason v. 
 
 , Read v. 
 
 Lambeutson v. VanBoskbrck, 4 Hun, 628; 
 
 49 How. 266; pp. 7, 16 (action), 277 
 
 (estoppel), 613 (practice). 
 Lament v. Haight, 44 How. 1 ; pp. 374 
 
 (highways), 575 (jiractice). 
 Lamont v. Cheshire, 6 Lans. 234; pp. 389 
 
 (execution), 523 (notice), 620 (practice.) 
 
 lyAMONT, HOAG V. 
 
 Lancaster City and County Fire Ins. 
 
 Co., BiCKNELL V. 
 
 Lancaster, Village of, v. Richardson, 
 4 Lans. 136 ; pp. 687, 690 (statutes), 713 
 (trees). 
 
 Lance, Flower v. 
 
 Lancey v. Clark, 3 Hun, 575 ; p. 316 (evid.) 
 
 Landers v. Staten Island R. R. Co., 13 
 Abb. N. S. 338 ; pp. 64 (appeal), 113 
 (Brooklyn), 127 (carrier), 492 (negli- 
 gence), 693 (Sunday). 
 
 V. , 14 Abb. N. S. 346; 53 N. Y. 
 
 450; pp. 147 (constitutional law), 418 
 (jurisdiction). 
 
 Landon, Bryan v. 
 
 V. Mayor, etc. op New York, 39 N, 
 
 Y. Supr. 467; affirming 49 How. 218; 
 pp. 206 (common pleas), 509 (New York 
 city). 
 
 -, National Union Bank of Water- 
 town V. 
 
 , SCOVILLE V. 
 
 Landreith, People ex rel. Tompkins v. 
 Landsbebg v. Dinsmore, 4 Daly, 490; p. 
 122 (carrier). 
 
 Lane, Hopkins v. 
 
 , People ex rel. Dolan v. 
 
 V. Salter, 57 N. Y. 1 ; reversing 4 
 
 Rob. 239 ; p. 26 (action). 
 
 , Vail v. 
 
 Laney, Parker v. 
 
 Lang , Justice v. 
 
 Langbeim v. Gross, 46 How. 50; 14 Abb. 
 N.S.il2;.p.l97 (costs). 
 
 Lange'u. Benedict, 48 How. 465; pp. 848 
 (false imprisonment), 418 (jurisdiction). 
 
 Laning v. New York Central R. R. Co., 
 49 N. Y. 521 ; pp. 41 (appeal), 456 (mas- 
 ter and servant). 
 
 Lannen v. Albany Gaslight Co., 44 N. 
 Y. 459; affirming 46 Barb. 264. See 
 Digest, vols. i. and ii. 
 
 Lanning v. Carpenter, 48 N. Y. 408; pp. 
 7 (action), 608 (practice), 736 (waste). 
 
 Lansing, Ackert v. 
 
 V. Blair, 43 N. Y. 48 ; p. 44 (limit, of 
 
 act.) 
 
 , Board op Water Commissioners 
 
 OP Cohoes v. 
 
 , Cagger v. 
 
 , Coleman v. 
 
 V. Lansing, 41 How. 248; in part re- 
 versed, 4 Lans. 377 ; pp. 156 (contempt), 
 454 (marriage and divorce). 
 
 , MOTT V. 
 
 , Western Transportation Co. of 
 
 Buffalo v. 
 Lantz v. Buckingham, 11 Abb. N. S. 64 ; 
 
 4 Lam. 484; pp. 128 (cemetery), 470 
 
 (mortgage) . 
 Lanz v. Trout, 46 How. 94 ; p. 195 (costs.) 
 Lapham v. Rice, 55 N. Y. 472 ; reversing 63 
 
832 
 
 TABLE OP CASES. 
 
 636 
 
 Barb. i85; pp.422, 423 (justice court), 
 708 (towns). 
 
 Larkin v. Pbople, 61 Barb. 226; pp. 210, 
 211 (criminal law. ) 
 
 , Sharkey v. 
 
 Laened v. Hudsok, 57 iV. Y. 151 ; pp. 268 
 (ejectment), 329 (evidence). 
 
 V. , 60 N. Y. 102; p. 706 (tenant at 
 
 will). 
 
 Lasher, Battder v. 
 
 V. Williamson, 55 N. Y. 619 ; p, 
 
 (principal and surety). 
 
 Lass v. Wetmoee, 2 Sweeny, 209 ; p. 565 
 (pleading). 
 
 Lathers v. Fish, 4 Lans. 213; p. 691 
 (submission of contract). 
 
 Lathrop v. Borden, 5 Hun, 560; p. 737 
 (will). 
 
 V. Bramhall, 3 Hun, 394; pp. 311 
 
 (evidence), 602 (practice). 
 
 V. DuNLOP, 4 Hun, 213 ; p. 738 (will). 
 
 V. Godfrey, 3 Hun, 739 ; p. 307 (evi- 
 dence). 
 
 V. Heacock, 4 Lans. 1; pp. 569,, 571 
 
 (practice). 
 
 V. Lathrop, 47 How. 532; p. 393 (in- 
 junction). 
 
 , Ogdenu. 
 
 Latourettb ?>. Clark, 51 iV. K. 639; revg. 
 45 Barb. 327; 30 How. 242. See Di- 
 gest, vols. i. and iL 
 
 Lauber, Kade v. 
 
 Lauderdale, Hall v. 
 
 Lavarello, Sonneborn v. 
 
 Lawrence v. Am. Natl. Bank, 54 N. Y. 
 432 ; pp. 254 (defense), 279 (estoppel). 
 
 , Ayers v. 
 
 , Bliss v. 
 
 , Gove v. 
 
 , Hackett v. 
 
 , Hope v. 
 
 , McC otter v. 
 
 , McMlCKEN V. 
 
 V. Maxwell, 53 N. Y. 19 ; affirming 6 
 
 Lans. 469 ; 64 Barb. 102; pp. Ill (b'kr.), 
 181 (conversion), 236 (damages), 323 
 (evidence), 567 (pledge). 
 
 V. Mead, 5 Hun, 179; p. 431 (landlord 
 
 and tenant). 
 
 , Palmer v. 
 
 , People v. 
 
 , Prevot v. 
 
 , Rockwell v. 
 
 V. Van Deventeb, 51 N. Y. 676; p. 
 
 174 (contract). 
 
 — '—, Williams v. 
 
 Lawton v. Green, 5 Hun, 157; pp. 58 
 (appeal), 623 (practice). 
 
 V. Kiel, 61 Barb. 558; p. 666 (sale). 
 
 Lawyer, Genet v. 
 
 Lea v. Wolf, 46 How. 157; 15 Abb. N. S. 1; 
 
 modifying 13 Abb. N. S. 389; p. 712 
 
 (trade-mark). 
 Leach, First Natl. Bank of Jersey 
 
 City v. 
 Leaird v. Smith, 42 How. 56; 44 i\r. Y. 
 
 618 ; p. 680 (spec. perf. ) 
 Leamy, Stafford v. 
 Learned, People v. 
 u. Ryder, 5 £ans. 539; 61 Barb. 552; 
 
 pp. 305 (evidence), 430 (land, and ten.) 
 Leary, Kirtland v. 
 Leaby's Will, matter of, 1 Tuck. 233 ; p. 
 
 741 (will). 
 Leary v. Woodruff, 4 Hun, 99 ; p. 490 
 
 (negligence). 
 Leastedt, Thompson v. 
 Lbavitt, Atlantic Dock Co. v. 
 Leavitt v. Dabney, 2 Sweeny, 618 ; S. C, 
 
 before, 7 Rob. 350 ; 37 How. 264; 3 Abb. 
 
 N. S. 469 ; p. 623 (practice). 
 
 , Field v. 
 
 : V. Thompson, 52 N. Y. 62 ; revg. 56 
 
 Barb. 542 ; p. 128 (cattle)." 
 Lederbr, Bassett v. 
 V. Ehrenfeld, 49 How. 403 ; p. 612 
 
 (practice). 
 
 , Gallup v. 
 
 Lediard, Kirschmanu. 
 
 Ledwich v. McKim, 53 N. Y. 307 ; aflg. 35 
 
 N. Y. Supr. 304; pp. 107 (bonds), 563 
 
 (pleading), 665 (sale). 
 Lee v. Decker, 43 How. 479 ; pp. 6 (ac- 
 tion), 317 (evid.), 463 (merger). 
 
 , McKeon v. 
 
 , Strong v. 
 
 , Thompson v. 
 
 , Wheelock v. 
 
 Leeds, In re, 53 N. Y. 400; p. 112 (Brook- 
 lyn). 
 Leetch v. Atlantic Mut. Ins. Co., 4 Daly, 
 
 518 ; pp. 32 (amend.), 256 (deposition). 
 Lepevre, Cassidy v. 
 u. Lefevre, 59 N. Y. 434; pp. 684 
 
 (statutes), 742, 753 (will). 
 Lefperts v. Harris, 10 ^466. N. S. 2, n. ; 
 
 p. 569 (practice). 
 
 , Sanborn v. 
 
 Leppler v. Field, 42 How. 420; affd. 47 
 
 iV. Y. 407 ; pp. 36, 52 (appl.), 603 (pract.) 
 Lefler v. Field, 52 N. Y. 621 ; pp. 556 
 
 (pleading), 584 (practice). 
 
TABLE OF CASES. 
 
 833 
 
 Leftwich v. Clinton, 4 Lans. 176 ; p. 159 
 (contracts). 
 
 Lbog, Geer v. 
 
 Leggett, Ft. Stanwix Bank v. 
 
 V. Hyde, 47 How. 524 ; 58 N. Y. 272 ; 
 
 p. 533 (partner). 
 
 V. MuT. L. Ins. Co. op N. T., 53 N. Y. 
 
 394; pp. 231 (damages), 726 (vendor 
 and purchaser). 
 
 V. , 64 Barb. 23 ; p. 476 (mort.) 
 
 Lehmnier, Dusenbtjry v. 
 
 Leicharbt, Belding v. 
 
 Leigh, Brown v. 
 
 Leighton, King v. 
 
 Leitch, Pardee v. 
 
 V. Wells. 48 N. Y. 585 ; reversing 48 
 
 Barb. 637 ; pp. 105 (boAa fide purchr.), 
 184 (corporation), 720 (trusts). 
 
 Leland, Lambert v. 
 
 V. Manning, 4 Hun, 7 ; pp. 330 (evi- 
 dence); 342 (ex'rs. and adm'rs.), 550 
 (pleading); 
 
 , Ramalat ». 
 
 V. Smith, 11 Abb. N. S. 231 ; pp. b39 
 
 (execution), 451 (marine court). 
 
 V. , 3 Daly, 309; pp. 156 (con- 
 tempt), 339 (execu.), 451 (marine ct.) 
 
 Lembke's Case, 11 ,465. N. S. 72 ; p. 336 
 
 (exec.) 
 Lenahan v. People, 3 Hun, 164 ; pp. 215, 
 
 220 (criminal law). 
 Lenheim, Clafun v. 
 Lektihan I). Hamann, 14 AM>. N. S. 274; 
 
 pp. 419 (juris.), 481 (mortgage). 
 V. , 55 N. Y. 652; p. 479 (mort.) 
 
 LeNNON v. MAYOiR, ETC. OF N. YORK, 55 N. 
 
 Y. 361; pp. 148 (const, law), 688 (stats.) 
 Lennox v. Eldred, 65 Barb. 410 ; pp. 380, 
 
 381 (husband and wife). 
 
 V. , 65 Barb. 526 ; p. 63 (appeal) . 
 
 Lenox Fire Ins. Co., Van Valkenbtjrgh v. 
 Leonard, Allis v. 
 , Decker v. 
 
 V. Fowler, 44 N. Y. 289; pp. 334 
 
 (evidence), 665 (sale). 
 
 , Kerner v. 
 
 , Woodruff v. 
 
 Leopold, Classen «. 
 Leow, Geis v. 
 
 L'EpLATTIMER, HULIi V. 
 
 Leppert, Baer v. 
 
 Lerch, Hcbbell v. 
 
 LbRoy v. Market Fire Inb. Co., 45 N. Y. 
 
 80; p. 402 (insurance). 
 Lesher V. Eoessner, 3 Hun, 217; p. 78 (atty.) 
 Leslie, Armour v. 
 
 53 
 
 V. Knickerbocker Life Ins. Co., 2 
 
 Hun, 616; p. 408 (insurance). 
 
 V. Leslie, 10 .466. N. S. 64 ; aflBrmiag 
 
 3 Daly, 194; pp. 453 (marriage and div.), 
 577 (practice). 
 
 V. , 11 Abb. N. S. 311; pp. 454 
 
 (mar. and div.), 559 (pldg.), 575 (pract.) 
 
 V. RuGG, 4 Hun, 410; p. 360 (frauds, 
 
 statute of). 
 
 , Stevenson «. 
 
 V. Wiley, 47 N. Y. 648; p. 18 (adtion). 
 
 Lester v. Un. Manp'g. Co., 1 Sun, 288; p. 
 173 (contract), 541 (payment). 
 
 , Wilson v. 
 
 Letson v. Dodge, 61 Barb. 125; p. 424 (jus. 
 court). 
 
 Lever, Baker v. 
 
 Leverich, Moody v. 
 
 Levi, Miller v. 
 
 Levine, Coughtry v. 
 
 Levy, In MATTER op, 4 Hun, 501; p. 517 
 (New York city). 
 
 ». Brush, 45 iV. F. 589: reversing 8 
 
 Abb. N. S. 418 ; 1 Sweeny, 653 ; p. 12 
 (action). 
 
 V. Burgess, 38 N. Y. Supr. 431; p. 176 
 
 (contract), 317 (evidence). 
 
 , Krom v. 
 
 ^ — ^ V. Lock, 47 How. 394; p. 534 (partner). 
 
 V. O'Neil, 14 Abb. N. S. 63; p. 654 
 
 (removal to U. S. court). 
 
 , Schmidt ». 
 
 Lewenthal 'v. Mayor, etc. of New York, 
 5 Lans. 532; 61 Barb. 511 ; p. 142 (con- 
 stitutional law), 521, 522 (N. Y. city). 
 
 Lewis v. Berry, 64 Barb. 593; pp. 19 (act.), 
 74 (assignment). 
 
 V. Bulkley, 4 Daly, 156 ; p. 232 (dam.) 
 
 Lewis, Chenango Bridge Company v. 
 
 V. Greider, 51 N. Y. 231; affg. 49 Barb. 
 
 606; pp. 42 (appeal), 668 (sale). 
 
 , Marvin v. 
 
 , People v. 
 
 V. Rogers, 34 N. Y. Supr. 64 ; pp. 98 
 
 (bills and notes), 583 (practice). 
 
 V. Rose, 6 lans. 206; p. 347 (false im- 
 prisonment). 
 
 , Ryan v. 
 
 , SlEGEL V. 
 
 V. Woods, 4 Daly, 241; pp. 382 (husb. 
 
 and wife), 629 (principal and agent). 
 LiBBY, Atlantic Dock Co. v. 
 Lienan v. Dinbmore, 41 How. 97; 10 Abb. 
 
 N. S. 209; 3 Daly, 365; pp. 119 (carrier), 
 
 236 (damages). 
 Life Asso. of America, Hascalx v. 
 
834 
 
 TABLE OF CASES. 
 
 LlHENTHAL, HaRLAND V. 
 , SaND8 V. 
 
 LttLis b. O' Conner, 49 How. 497; p. 198 
 
 (costs). 
 Linden, Graham v. 
 Lindsay, Chamberlain v. 
 
 , o'donnbll v. 
 
 V. People, 5 Hun, 104; pp. 219, 226 
 
 (criminal law). 
 LiNDSLEYD. COTTRELL, 41 How. 56; S. C., 
 
 3 Lans. 176; 10 .466. iV. S. 107. See 
 
 Digest, vol. iv. 
 
 , COTTRELL il. 
 
 , Grossman v. 
 
 V. DEAPENDORr, 43 How. 90 ; p. 200 
 
 (costs), 343 (executors and administra- 
 tors). 
 V. DiEFENDORF, 43 How. 357; pp. 104 
 
 {bona Jide purchaser), 105 (bond). 
 V. European Petroleum Co., 41 How. 
 
 56; S. C, 3 Lans. 176; 10 Abb. N. S. 
 
 107. See Digest, vol. iv. 
 V. Ferguson, 49 N. Y. 623; affg. S. C, 
 
 3 Lans. 196. See Digest, vol. iv. 
 Liny, Ball v. 
 LiNGKE V. Wilkinson, 57 N. Y. 445 ; pp. 
 
 634 (principal and agent), 719 (trusts). 
 
 LiNNEMAN, HaMMETT V. 
 
 LiNNER V. Crouse, 61 Barb. 289; p. 573 
 
 (practice). 
 LippE, Murphy «. 
 LippMAN, In MATTER OF, 48 How. 359 ; p. 
 
 451 (marine court). 
 LiscoMB V. N. J. Ry. and Transp'n. Co., 
 
 6 Lam. 75 ; pp. 490 (negl.), 655 (resid.) 
 
 , People ex rel. Tweed v. 
 
 Litchfield v. Irvin, 51 N. Y. 5 ; p. 12 
 
 (action). 
 Littell, Jackson v. 
 Little, Matter of, 60 N. Y. 343 ; revg. 3 
 
 Hun, 215; pp. 517, 519 (N. Y. city). 
 Littlefibld, Smith v. 
 Little Valley, Town of, Marsh v. 
 LiVERMORE 11. Bainbridgb, 42 How. 53; 
 
 affirmed, 43 How. 272; 61 Barb. 358; 49 
 
 N. Y. 125 ; p. 2 (abate, and rev.) 
 V. ,44 How. 357; 14 Abb. N. S. 
 
 232, n. ; affirmed, 47 How. 350 ; p. 58 
 
 (appeal), 602, 604 (practice.) 
 B. , 47 How. 354; 56 N. Y. 72; 15 
 
 .466. N. S. 436 ; p. 38 (appeal). 
 J). Bushmell, 5 Hun, 285; pp. 2 (abate- 
 ment and rev.), 178 (contract). 
 B. NoRTHRUP, 44 N. Y. 107 ; pp. 75 
 
 (assignment for benefit), 239 (damages), 
 
 255 (defense), 283 (eyideupe). 
 
 Liverpool and London Fire and Life 
 
 Ins. Co., Fairchild v. 
 Liverpool, N.Y. and Phil. Steamship Co., 
 
 Arend v. 
 
 , Redmond v. 
 
 , Steers v. 
 
 Livingston v. Arnoux, 56 N. Y. 507 ; affg. 
 
 15 Abb. N. S. 158; pp. 290 (evidence), 
 
 340 (execut.), 523 (notice), 650 (redemp.) 
 , Coleman v. 
 
 , FlBEL V. 
 
 V. Green, 52 N. Y. 118 ; affirming 6 
 
 Xan*. 50; p. 752 (will). 
 
 , HiRSCB V. 
 
 V. Keech, 34 JV. Y. Supr. 547 ; p. 356 
 
 (fraud), 583 (practice). 
 
 V. Murray, 4 Hun, 619 ; p. 750 (will.) 
 
 V. N. y. Central and Hud. Riv. R. 
 
 R. Co., 5 Hun, 562; pp. 120 (carrier), 
 
 236 (damages). 
 V. Pettingrew, 7 Lans. 405 ; pp. 207 
 
 (covenant), 649 (receiver). 
 V. Rend ALL, 59 Barb. 493; p. 605 
 
 (practice). 
 
 , Swart v. 
 
 Lloyd v. Burns, 38 2V. Y. Supr. 423 ; p. 
 
 552 (pleading). 
 Lloyd v. Matthews, 51 N. Y. 124 ; pp. 108, 
 
 111 (broker). 
 
 ,0'Beirne v. 
 
 LoANERs' Bank of New York, Thomas v. 
 Lobdell v. Stowell, 51 N. Y. 70 ; afEg. 37 
 
 How. 88; p. 238 (damages). 
 Lock, Levy v. 
 LocKLiN V. Moore, 5 Lans. 307 ; afEd. 57 N. 
 
 Y. 360; pp. 18 (action), 255 (defense). 
 Lockport, City op. Buck v. 
 
 ——, HiNES V. 
 
 , Pbudden v. 
 
 , Walker v. 
 
 , Webber v. 
 
 Lockbow v. Horgan, 58 N. Y. 635 ; p. 428 
 (land, and tenant). 
 
 LocKwooD, Elmendorp i». 
 
 , People ex rel. Murphy v, 
 
 , Wood v. 
 
 Loder v. Hatpield, 4 Hun, 36; pp. 438 
 (lim. of actions), 746 (wiU). 
 
 V. New York, Utica and O. R. R. Co., 
 
 4 Hun, 22 ; p. 194 (corp.) 
 
 , Wearing v. 
 
 LoEB, Miller v. 
 
 Loeschigk v. Hatpield, 51 N. Y. 661 ; 
 affg. 5 Rob. 26. See Digest, vol. iv. 
 
 LoEW, Matter op, 5 Hun, 462; p. 77 (at- 
 torney). 
 
TABLE OF CASES. 
 
 835 
 
 Long, Corey v. 
 
 , Kelty v. 
 
 V. New York Central R. R. Co., 50 
 
 N. Y. 76; p. 320 (evidence). 
 
 , pollett v. 
 
 Long Island Ferry Co. v. Terrell, 48 
 
 N. Y. 427; p. 188 (corporation). 
 Long Island R. R. Co., Matter of, 45 
 
 N. Y. 364; p. 643 (R. R. Cos.) 
 
 , Bedell v. 
 
 , Eckert v. 
 
 , HOYX V. 
 
 , Savage v. 
 
 , Vansize i>. 
 
 , Wagner v. 
 
 LooMis V. Board of Sups, of Oneida Co., 
 
 6 Lans. 269 ; pp. 464 (mobs), 705 (ten. 
 
 in com.) 
 , Lakeyw. 
 
 V. LooMis, 60 Barb. 22; p. 680 (spec. 
 
 perf.) 
 
 V. MowRY, 4 Hun, 271; p. 584 (pract.) 
 
 V. Ruck, 56 N. Y. 462; reversing 14 
 
 Ahb. N. 8. 385; p. 97 (bills and notes). 
 
 LoPER, Erwin v. 
 
 Lord v. Connor, 48 How. 95 ; p. 601 (pract.) 
 
 , Doyle v. ; 
 
 , Pendleton v. 
 
 , Snook v. 
 
 LORENZ, BrITTON V. 
 
 Lorillard Fire Ins. Co., Bryce v. 
 
 , Perry v. 
 
 Lormore v. Campbell, 60 Barb. 62; pp. 330 
 (evid.), 358 (fraudulent con v.) 
 
 LosEE V. Buchanan, 51 N. Y. 476 ; revers- 
 ing 61 Barb. 86; pp. 12 (action), 45 
 (appeal), 298, 309 (evid.), 492 (negl.) 
 
 V. Clute, 51 N. Y. 494; p. 493 (negl.) 
 
 V. Saratoga Paper Co., 42 How. 385; 
 
 pp. 12, 26 (action), 492 (negligence). 
 V. Williams, 6 Lans. 228; pp. 367 
 
 (guaranty), 628 (prin. and agent). 
 Lott, City of Brooklyn v. 
 Lottich, Davis v. 
 Loucks, Parsons v. 
 ■ V. Van Allen, 11 .466. N. S. 427; p. 
 
 480 (mortgage). 
 Lough a Romainb, 36 N. Y. Supr. 332 ; pp. 
 
 197 (costs), 503 (new trial). 
 Loughlin, Randolph v. 
 LouGHRAN V. Ross, 45 N. Y. 792 ; pp. 207 
 
 (covt.), 429 (land, and tenant). 
 Louis, Mayer v. 
 LouNDS, Rowland v. 
 LoUNSBUKY V. Potter, 37 N. Y. Supr. 57 ; 
 
 pp. 465 (money had), 515 (N. T. city). 
 
 LouRiE, Harrison v. 
 
 Love, People ex rel. Gregory v. 
 
 , Weeks v. 
 
 LovELL, Graves v. 
 
 LovELASs, Pierrepont. 
 
 Low V. Hall, 47 N. Y. 104; pD. 41 (appl.), 
 
 543 (penal action). 
 
 , Hall v. 
 
 , Simpkins v. * 
 
 LowENBEiM, Agate v. 
 
 Lowenstein, Fowler v. 
 
 LowERY V. Western U. Tel. Co., 60 N. Y. 
 
 198; pp. 240 (damages), 704 (teleg. Co.) 
 LowRY V. Inman, 46 N. Y. 119; affirming 2 
 
 Sweeny, 117; p. 190 (corp.) 
 LowRY, Brennan v. 
 Lowville Village of, Ellis v. 
 Lucas, Milliner v. 
 Luce v. Hartshorn, 7 Lans. 331 ; affirmed 
 
 56 N. Y. 621 ; pp. 171 (contract), 251 
 
 (defense), 539 (partnership). 
 Luddington v. Miller, 36 N. Y. Supr. 1 ; 
 
 affirmed id. 570; pp. 506 (new trial), 736 
 
 (warehouse). 
 V. ,38JV. Y. Supr. 4:78; pp.272 
 
 (equity), 413 (interest). 
 ■ V. Slauson, 38 N. Y. Supr. 81; p. 559 
 
 (pleading). 
 Ludlow v. Am. Exc'h. Nat'l. Bank, 59 
 
 Barb. 509; pp. 58 (appeal), 601 (prac.) 
 
 V. Dole, 1 Hun, 715; p. 595 (prac.) 
 
 V. Hud. Riv. R. R. Co., 4 Hun, 239; 
 
 reversing 6 Lans. 128; pp. 247 (deed), 273 
 
 (estop.), 440 (lim. of action). 
 Ludlow, Soule v. 
 LuDwiG V. Jersey City Ins. Co., 48 N. Y. 
 
 379; p. 398 (insurance). 
 V. Minot, 4 Daly, 481 ; p. 206 (common 
 
 pleas). 
 LuFT V. Graham, 44 How. 152; 13 ^66. N. 
 
 8. 175; pp. 57, 64 (appeal), 96 (biUs and 
 
 notes). 
 LuLiNG V. Atlantic Mut. Ins. Co., 51 N. 
 
 Y. 207; affirming 30 How. 69; 50 Barb. 
 
 520. See Digest, vols, i., ii., iii. 
 
 , Fisher v. 
 
 , Nelson v. 
 
 LuLTGOR V. Walters, 64 Barb. 417; p. 197 
 
 (costs). 
 LuMBARD V. Syracuse, Binq. and N. Y. 
 
 R. R. Co., 64 Barb. 609 ; modified 55 
 
 N. Y. 491; p. 461 (mechs. lien). 
 Lund v. Bkoadhead, 41 How. 146 ; p. 197 
 
 (costs). 
 LuNDY, Haddow v. 
 Lunt, Moores v. 
 
836 
 
 TABLE OF OASES. 
 
 LuPTON V. Smith, 48 How. 261 ; 3 Hun, 1 ; pp. 
 
 21 (act.), 620 (practice). 
 LusK V. Campbell, 3 Hun, 607; p. 275 
 
 (estoppel). 
 Lutes v. Briggs, 5 Hun, 67; pp. 887 (inj.) 
 
 657 (Rochester). 
 
 LUYSTEB, EtEN U. 
 
 Lycoming Ins. Co., Bell t;. 
 ^YNCH, Atwood v. 
 
 , Bensel u. 
 
 , Clark v. 
 
 V. Ckary, 14 Ahh. N. S. 85 ; 52 N. Y. 
 
 181; p. 619 (practice). 
 V. , 34 N. Y. Supr. 461; pp. 618, 619 
 
 (practice). 
 
 , Fall Brook Coal Co. v. 
 
 V. Johnson, 48 N. Y. 27 ; affirming 46 
 
 Barb. 56 ; See Digest, vols. i. and ii. 
 V. Meyers, 3 Daly, 256; pp. 201 (costs), 
 
 311 (evidence). 
 V. Onondaga Salt Co., 64 Barh. 558; 
 
 p. 207 (cov.) 
 
 , People ex rel. Lee ». 
 
 , Bapbaelsky v. 
 
 , Trustees Columbia College v. 
 
 , Wheblan v. 
 
 Lyonu. Adde, eSBarb. 89; pp. 273 (estop.), 
 283, 292 (evidence), 354 (former adjudi- 
 cation). 
 
 w. ISETT, 42 Hovi. 155; 11 Abb. N. S. 
 
 353; 34 N. Y. Supr. 41; pp. 89 (bankr.), 
 562 (pleading). 
 
 V. Lyon, 63 Barb. 138; p. 329 (evid.) 
 
 , Mount v. 
 
 Lyon, Newlin vf 
 
 , Ogdensburgh, City op, v. 
 
 V. Snyder, 61 Barb. 172 ; pp. 539 (part- 
 nership), 754 (witness). 
 
 Lyon, Rogers v. 
 
 , Van Loon ». 
 
 , Yates v. 
 
 Lyons v. Erie Ry. Co., 57 N. Y. 489 ; pp. 
 333 (evidence), 501 (negligence). 
 
 , People ex. rel. Lawrence v. 
 
 , Simmons v. 
 
 Lytle v. Beveridge, 7 Lam. 225 ; affd, 58 
 N. Y. 598; pp. 273 (estoppel), 438 (lim. 
 of action), 721 (trusts), 749 (wiU). 
 
 M. 
 
 Mabbett, Dutchess and Col. Co. R. R. 
 
 Co. V. 
 Mack v. Bukt, 5 Hun, 28 ; pp. 434 (land- 
 lord and tenant), 552 (pleading). 
 V. Mack, 3 Hun, 323 ; pp. 365 (gift), 377 
 
 (husband and wife). 
 Macken, Stokes v. 
 Mackin, Smith v. 
 
 Macon and Western R. B. Co., King v. 
 Macy, Hawkins v. 
 
 , McMahon v. 
 
 V. Nelson, 49 How. 204 ; p. 201 (costs). 
 
 Madden v. New York Cent, and Hud. 
 
 Riv. R. R. Co., 47 N. Y. 665 ; p. 497 
 
 (negligence). 
 Madison Ave. Bapt. -Church v. Bapt. 
 
 Church in Oliver St., 11 .466. iV. <S. 
 
 132 ; 46 iV. Y. 131 ; revg. 1 Sweeny, 
 
 109 ; p. 652 (relig. corp'n.) 
 Magawu. Field, 48 iV. y,668; p. 749 (wUI). 
 Maghee v. Camden and Amb. R. R. Co., 
 
 45 N. Y. 514; pp. 118, 119 (carrier). 
 Maginnis v. New York Cent, and Hud. 
 
 Biv. R. R. Co., 52 N. Y. 215 ; pp. 488, 
 
 497 (negligence). 
 Magnin v. Dinsmobe, 46 How. 297; 15 .456. 
 
 N. S. 331 ; p. 198 (costs, 
 
 V. , 47 How. 11 ; p. 203 (costs) . 
 
 V. , 38 N. Y. Supr. 248; pp. 117 
 
 (carrier), 588 (practice). 
 V. , 56 N. Y. 168 ; revg. 35 N. Y. 
 
 Supr. 182 ; pp. 117 (carrier), 590 (praot.) 
 Magoverninq v. Staples, 7 Lans. 145 ; pp. 
 
 30 (agrioul. soc'y.), 595 (practice). 
 Maguire, Osgood v. 
 
 , Van Dyke v. 
 
 Maher v. Central Park, N. and E. Riv. 
 
 R. R. Co., 39 N. Y. Supr. 155; pp. 493, 
 
 499 (negligence), 591, 596 (practice). 
 Mahon v. Hall, 2 Hun, 154 ; p. 56 (appeal). 
 Mahoney v. O'Callaghan, 38 N. Y. Supr. 
 
 461 ; p. 15 (action). 
 V. People, 48 How. 185 ; 3 Hun, 202 ; 
 
 affd. 59 i\r. r. 659; pp. 59 (appeal), 214 
 
 (criminal law). 
 
 , Smith v. 
 
 Maier v. Homan, 4 Daly, 168 ; pp. 61 (ap- 
 peal), 179 (contract). 
 Malcolm v. Allen, 49 N. Y. 448 ; pp. 471, 
 
 479 (mortgage). 
 
 , Allen v. 
 
 V. Fagan, 1 Hun, 617 ; p. 303 (evid.) 
 
 Mallon, Atchesonv. 
 
 MaLLOBT, t^ORTON V, 
 
TABLE OF CASES. 
 
 837 
 
 , People v. 
 
 V. Travelers Ins. Co., 47 N. Y. 52 ; pp. 
 
 285, 306 (evidence), 409 (insurance). 
 V. West Shore Hudson Riv. R. R. 
 
 Co., 35 N. Y. Supr. 174; pp. 107 (bonds), 
 
 207 (covenant). 
 Mallot, Finnin m. 
 
 V. McCoNNELL, 4 Hun, 665;p. 309(evid.) 
 
 Malonet 0. HoEAN, 12 .466. N. S. 289 ; 49 
 
 N. Y. Ill ; pp. 260 (dower), 274, 277 
 
 (estoppel). 
 
 , Knight v. 
 
 Maltbt, Wilson jj. 
 
 Mandeville v. Reynolds, 5 flun, 338; pp. 
 
 77 (attorney), 320 (evidence). 
 Manhattan Brass and Man. Co. v. Sears, 
 
 45 N. Y. 797 ; revg. 1 Sweeny, 426 ; p. 
 
 536 (partnership). 
 V. Thompson, 58 N. Y. 80 ; p. 378 
 
 (husband and wife). 
 Manhattan Gas Light Co., Schaus ». 
 Manhattan Ins. Co., Smith v. 
 Manhattan Oil Co. v. Camden and Amb. 
 
 R. R. AND Trans. Co., 54 N. Y. 197 ; 
 
 affg. 52 Barb. 72 ; 5 Aib N. S. 289. See 
 
 Bigest, vol. iv. 
 Manice v. Manice, 43 N. Y. 303 ; revg. 1 
 
 Lans. 348 ; pp. 743, 746 (will). 
 Manley, Kowing »• 
 
 , Rice v. 
 
 Mann v. City of Utica, 44 How. 334 ; pp. 
 
 138 (cloud on title), 145 (constitutional 
 
 law), 726 (Utica). 
 V. New York Cent., etc. R. R. Co., 12 
 
 Abb. JSr. S. 380 ; pp. 47 (appeal), 201 
 
 (costs), 340 (execution). 
 
 , Wells v. 
 
 Manners, Casserly v. 
 Manning, Leland v. 
 
 , Williams v. 
 
 Mansfield v. Kerner, 4 Htm, 133 ; p. 328 
 
 (evidence). 
 Manton v. Poole, 4 Hun, 638; p. 617 (prac- 
 tice). 
 Manufacturers National Bank of 
 
 Troy v. Cox, 2 Hun, 572 ; affirmed 59 
 
 N. Y. 659 ; p. 535 (partnership). 
 Manufacturers and Traders Bank, 
 
 Nash v. 
 Manvel v. Holdkedgb, 45 N. Y. 150 ; pp. 
 
 11 (action), 169 (contract). 
 Mapes v. Snyder, 59 N. Y. 450 ; pp. 470 
 
 (mortgage), 575 (practice). 
 Maplesden, Cartwright v. 
 Mappier v. Mortimer, 11 Abb. N. S. 455 ; 
 
 p. 546 (pleading). 
 
 Maracella v. Odell, 3 Daly, 123 ; p. 109 
 (broker). 
 
 Marcellus v. Countryman, 65 Barb. 201 ; 
 pp. 97 (bills and notes), 275 (estop.), 311, 
 322 (evidence), 351 (former adj.) 
 
 March v. First National Bank op Mo- 
 bile, 4 Hun, 466 ; p. 357 (fraud). 
 
 Marcy v. Dunlap, 5 Lans. 365 ; p. 469 
 (mortgage). 
 
 Margraf v. MtJiR, 57 N. Y. 155 ; pp. 237 
 (damages), 680 (specific performance). 
 
 Marine Bank op Chicago v. Van Brunt, 
 61 Barb. 361; affirmed 49 N. Y. 160; 
 p. 335 (execution). 
 
 V. Wright, 48 N. Y.l; aSg. 46 Barb. 
 
 45. See Digest, vols. i. and ii. 
 
 Marine National Bank v. National City 
 Bank, 59 N. Y. 67 ; reversing 36 N. Y. 
 Supr. 470; pp. 40, 48 (appeal), 136 
 (checks), 276 (estop.), 466 (money paid). 
 
 Mariposa Company, National Mechan- 
 ics Banking Assoc'n. v. 
 
 Mariposa L. and M. Co., Eelly v. 
 
 Market Fire Ins. Co., LeRoy v. 
 
 Markham, Rathbun v. 
 
 Marks, -Beyers u. 
 
 V. King, 1 Hun, 435 ; p. 306 (evid.) 
 
 Marquis, Rexford v. 
 
 Marrener, Mayor, etc. of New York v. 
 
 Marsdbn v. Cornell, 2 Hun, 449 ; p. 134 
 (chattel mortgage). 
 
 Marsh v. City of Brooklyn, 59 N. Y. 280; 
 revg. 2 Hun, 142 ; pp. 112 (Brooklyn), 
 137 (cloud on title). 
 
 V. Dodge, 5 £qns. 541 ; pp. 333 (evi- 
 dence), 581 (practice). 
 
 V. , 4 Hun, 278 ; pp. 168 (contract), 
 
 278 (estoppel). 
 
 V. Ellsworth, 2 Sweeny, 589; affd. 50 
 
 iV. Y. 309 ; p. 436 (libel). 
 
 , Foot v. 
 
 V. Gilbert, 2 Hun, 58 ; p. 631 (prin- 
 cipal and agent). 
 
 , Gould v. 
 
 V. Rouse, 44 N. Y. 643; p. 363 (frauds, 
 
 statute of). 
 
 , Sickle v. 
 
 V. Titus, 3 Hun, 550; p. 81 (bailment). 
 
 V. Town op Little Valley, 1 Hun 
 
 554; pp. 104 (6./purchr.), 708 (towns) 
 
 , Trimm v. 
 
 Marshall, Garrison v. 
 
 V. McGregor, 59 Barb. 519; pp. 389 
 
 (injunction), 619 (practice). 
 
 V. Marshall, 48 How. 57; 2 Hun, 238; 
 
 pp. 158 (contempt) , 452 (marr. and div.) 
 
 \ 
 
838 
 
 TABLE OF CASES. 
 
 V. Mkech, 51 N. Y. 140; p. 78 (atty. ) 
 
 , Wright v. 
 
 Mabston v. Swett, 4 Hun, 153; pp. 253 
 
 (defense), 275 (estop.), 353 (former adj.) 
 Martin, Baldwin v. 
 
 , Benton v. 
 
 V. Farnsworth, 41 How. 59; 83 N. Y. 
 
 Supr. 246 ; affirmed 49 iV. Y. 555; pp. 
 
 323 (evidence), 676 (ships, etc.) 
 , People ex rel. Johnsojt v. 
 
 , QUINN V. 
 
 , Beid v. 
 
 V. SiLLiMAN, 53 N. Y. 615 ; pp. 44 (ap- 
 peal), 108 (broker), 233 (damages). 
 V. Smith, 58 N. Y. 672 ; p. 124 (can-ier.) 
 
 , TpRNBDLL V. 
 
 — — , Volte v. 
 
 1!. Wagener, 60 Barb. 435; pp. 392 
 
 (injunction), 416 (judgment). 
 
 , Winchell v. 
 
 Maktine v. International Life Ass'ce 
 Soc'y op London, 5 Lans. 535; 62 
 Barb. 181 ; affirmed 53 N. Y. 339 ; pp. 
 394, 395, 406 (ins.), 627 (prin. and agt.) 
 
 Marvin v. Buchanan, 62 Barb. 468; pp. 
 109 (broker), 162 (contract). 
 
 V. Brewster Iron Mining Co., 55 N. 
 
 Y. 538 ; pp. 30 (adv. poss'n.), 247 (deed.) 
 
 „. , 56 N. Y. 671; p. 47 (appeal.) 
 
 V. Lewis, 61 Barb. 49 ; pp. 9 (action), 
 
 245 (deed), 439 (limitation of actionsl. 
 
 V. Marvin, 11 Abb. N. S. 97; pp. 68 
 
 (appeal), 730 (waiver). 
 
 V. , 11 Abb. N. S. 102 ; pp. 268 
 
 (eject. ), 371 (heirs), 502 (new trial). 
 
 „. , 53 N. Y. 607; p. 331 (evid.) 
 
 V. , 3 Hun, 139 ; p. 740 (will). 
 
 V. Pardee, 64 Barb. 353 ; pp. 241 (dam- 
 ages), 372, 373 (highway), 689 (stats.) 
 
 , People ex rel. Frost v. 
 
 V. Prentice, 49 How. 385 ; p. 608 
 
 (practice). 
 
 V. Smith, 46 N. Y. 571 ; affirming 56 
 
 Barb. 600. See Digest, vol. iv. 
 
 V. WiLBER, 52 N. Y. 270; p. 629 (prin- 
 cipal and agent). 
 
 Marx v. People, 63 Barb. 618; p. 226 
 (criminal law). 
 
 Maryland Coal Co. v. Edwards, 4 Hun, 
 432; pp. 587, 588 (practice), 629 (prin- 
 cipal and agent). 
 
 Maryott v. Thayer, 39 iV. Y. Supr. 417 ; 
 p. 600 (practice). 
 
 Mason v. Breslin, 2 Sweeny, 386 ; S. C, 40 
 How. 436 ; 9 Abb. N. S. 427. See Di- 
 gest, vol. iv. 
 
 , Grierson v. 
 
 , Hopkins v. 
 
 V. HiCKOX, 11 Abb. N. S. 127; p. 99 
 
 (bills and notes). 
 
 Mason v. Lambert, 3 Daly, 250; pp. 613, 
 614 (practice). 
 
 V. Partridge, 4 Hun, 621 ; p. 536 
 
 partnership). 
 
 V, Wells, 2 Hun, 518; p. 556 (pleadg.) 
 
 Massachusetts Mutual Fire Ins. Co., 
 Greenfield v. 
 
 Massachusetts Mutual Life Ins. Co. v 
 Carpenter, 2 Sweeny, 734 ; affd. 49 
 N. Y. 668; pp. 4 (accounts), 454 (master 
 and servant), 635 (principal and agent). 
 
 , SwiPT, V. 
 
 Masterton, Dillon v. 
 
 , Duffy v. 
 
 V. Village op Mount Vernon, 58 N. 
 
 F. 391; pp. 303 (evidence), 484 (muni- 
 cipal corporation). 
 
 Mather, Anderson v. 
 
 Mather, Boss v. 
 
 Matheson, Wade v, 
 
 Mathewson, Coray v. 
 
 Matson, Smith v. 
 
 Matteson, Bain v. 
 
 , Buss v. 
 
 V. New York Cent. R. R. Co., 62 
 
 Barb. 364; pp. 238 (damages), 315, 316, 
 325 (evidence), 493 (negligence), 590, 
 591 (practice),- 755 (witness). 
 
 V. , 57 N. Y. 552; p. 127 (carrier). 
 
 , Seymour v. 
 
 Matthews, Bank op New Orleans v. 
 
 , Bennett v. 
 
 , Burnside v. 
 
 V. CoE, 49 N. Y. 57; reversing 56 Barb. 
 
 430; pp. 44 (appeal), 238 (damages). 
 
 V. Daley, 3 Daly, 214, n. ; S. C, 38 
 
 How. 382. See Digest, vol. iv. 
 
 V. Hubbard, 47 N. Y. 428; p. 572 
 
 (practice). 
 
 , Lloyd v. 
 
 , McStea v. 
 
 V. Meyberg, 4 Hun, 78; p. 431 (land- 
 lord and tenant). 
 
 , Witty v. 
 
 V. Wood, 10 Abb. N. S. 328 ; 33 N. Y. 
 
 Supr. 335; p. 64 (appeal). 
 
 Matthewson, Gobtcheus v. 
 
 Mattoon v. Young, 45 N. Y. 696; pp. 313 
 (evidence), 367 (guaranty), 755 (witness.) 
 
 V. , 2 Hun, 559 ; p. 278 (estoppel). 
 
 Matze v. New York Cent, and Hud. Riv. 
 R. R. Co., 1 flun, 417; p. 506 (negl.) 
 
TABLE OF CASES. 
 
 839 
 
 Maurer, Cotton ». 
 
 V. People, 43 N. Y.l; pp. 220 (orim. 
 
 law), 732 (waiver). 
 
 Mausert, Moorer v. 
 
 Maximilian v. Mayor, etc. of New York, 
 2 Hun, 263 ; pp. 484 (municipal cor- 
 poration), 508 (N. Y. city). 
 
 Maxon v. Scott, 55 N. Y. 247 ; p. 378 (hus- 
 band and wife). 
 
 Maxwell, Deal b. 
 
 , Lawrence v. 
 
 May, In Matter of, 47 How. 37; p. 89 
 (bankruptcy). 
 
 V. Page, 60 N. Y. 628; p. 207 (covt.) 
 
 V. Walter, 56 iV: F. 8; p. 363 (frauds, 
 
 stat. of), 587 (practice). 
 
 Mayenborg v. Haynes, 50 iV. Y. 675; p. 
 277 (estoppel). 
 
 Maver, Matter op, 50 N. Y. 504; pp. 142, 
 143 (constitutional law). 
 
 V. Apfel, 2 Sweeny; 729 ; pp. 624, 625 
 
 (practice), 731 (waiver). 
 
 , Fox v. 
 
 V. LoDis, 12 Abb. N.S.5; p. 557 (pl'ng.) 
 
 V. Mayor, etc. New York, 2 Hun, 
 
 306 ; p. 468 (money paid). 
 
 Maynard v. Anderson, 54 N. Y. 641 ; pp. 
 28»ie8toppel), 658 (sale). 
 
 Mayor, etc. of Albany, Argus Co. c. 
 
 , Coster v. 
 
 , McClaskey v. 
 
 , People v. 
 
 Mayor, etc. of New York, Astor v. 
 
 , Atlantic Dock Co. v. 
 
 , Bank of the Commonwealth v. 
 
 , Beach v. 
 
 , Bergen v. 
 
 , Berrian v. 
 
 , Bowery National Bank v. 
 
 , Brennan v. 
 
 , Browns. 
 
 , COGAN V. 
 
 , Collins v. 
 
 , Conway ». 
 
 , Cowan v. 
 
 , Crevier V, 
 
 , Detwiller v. 
 
 , Devlin v. 
 
 , Dietrich ». 
 
 , DiNSMORB V. 
 
 , Donohue ». 
 
 , dowdney v. 
 
 , Drake v. 
 
 , DURYBA V. 
 
 , Eickhofp. 
 
 , Fisher v. 
 
 -, Fobs v. 
 -, Gearty v. 
 
 - V. Genet, 4 Hun, 487; p. 618 (prac.) 
 -V. , 4 Hun, 658; p. 601 (prac.) 
 
 -, Greene v. 
 
 -, Gdidet v. 
 
 ~, Ham v. 
 
 -, Harway v. 
 
 -, Healy v. 
 
 -, Hebrew Free School Assoo'n. v. 
 
 -, HOLLBY V. 
 
 -, Hume v. 
 -, Jarvis v. 
 -, Landon o. 
 -, Lennon v. 
 -, Lowenthal v. 
 
 - V. Marrener, 49 How. 36; p. 571 (pr.) 
 -, Maximilian v. 
 
 -, McCloskey v. 
 -, McDonnell v, 
 -, McLain v. 
 -, McVeany v. 
 -, Miller v. 
 -, Miner v. 
 -, Moore v. 
 -, mullaly v. 
 
 -, MULLEB V. 
 
 -, Nelson v. 
 
 -, New York M0t. Gas Light Co. ». 
 
 - V. New York and Staten I'd. Ferry 
 Co., i9 How. 250; pp. 386 (injunction), 
 513 (New York city). 
 
 -, Oakley v. 
 
 -, Orb v. 
 
 -, Phillips v. 
 
 -, PiTTMAN V. 
 
 -, Ploedterll l>. 
 
 -, POILLON V. 
 -, QUIN V. 
 
 -, Rae v. 
 
 -, RiKER V. 
 
 -, SCHREYER V. 
 
 -, Schuchardt V. , 
 
 -, Seaman v. 
 
 -, Smith v. 
 
 -, Stevenson ». 
 
 -, Sullivan v. 
 
 -, Tenth National Bank v. 
 
 -, Third Ave. R. R. Co. v. 
 
 -, Tomlinson v. 
 
 -, Union Nat. Bank of New York p. 
 
 -, voorhis v. 
 
 -, Wallack v. 
 
 -, Walling v. 
 
 -, Whitmork v. 
 
 -, Whitney v. 
 
840 
 
 TABLE OF CASES. 
 
 -^— , Williamson v. 
 
 , woolbridge v. 
 
 Mayor, etc. of Syracuse, People ex vel. 
 
 howlett v. 
 Mayor, etc. of Troy, Nim« v. 
 V. Troy and Lans. R. R. Co., 49 N. 
 
 Y. 657; pp. 287 (evid.), 483 (mun.corp.) 
 McAllister, Dederich v. 
 Mc Andrew v. Whitlock, 2 /Sweeny, 623 ; 
 
 affirmed, 52 iV.F. 40; pp. 119 (carrier), 
 
 603 (practice). 
 McAndrews, Dustan v. 
 
 V. Place, 5 Hun, 285; p. 600 (prac.) 
 
 McArthuk v. Soule, 5 Hun, 63; pp. 301 
 
 (evidence), 587 (prac), 630 (prin. and 
 
 agent). 
 MpCabe, Schneider v. 
 
 , Wheeler v. 
 
 McCafferty v. Decker, 3fl«n, 604; p. 465 
 
 (money had). 
 V. Spuyten Duyvil and Pt. Morris 
 
 R. R. Co., 48 How. 44; pp. 455 (master 
 
 and servant), 495 (negligence). 
 McCaffrey v. Wooden, 62 Barb. 316; pp. 
 
 427 (landlord and tenant), 437 (lien). 
 McCahill, Badbnhop v. 
 McCall v. McCall, 54 N. Y. 541 ; p. 609 
 
 (practice). 
 . V. New York Cent. R. R. Co., 54 N. 
 
 Y. 642 ; p. 497 (negligence). 
 McCallum, Dietz v. 
 McCann, O'Brien v. 
 McCarthy u. City of Syracuse, 46 N. Y. 
 
 194 ; pp. 484, 485 (mun. oorp.) 
 
 , Moore v. 
 
 , Paine ti. 
 
 , People y. 
 
 McCartney, Vookhebs v. 
 
 u. Welch, 51 N. Y. 626; afPg. 44 Barb. 
 
 271. See Digest, vol. ii. 
 McCarty v. Dbming, 4 Lans. 440 ; pp. 257 
 
 ' (descent), 295 (evidence), 748 (will). 
 V. Myers, 5 Hun, 83 ; pp. 729 (vendor 
 
 and purchaser), 742 (will). , 
 B. Terry, 7 Lans. 286; pp. 32 (alien), 
 
 295 (evidence), 748 (will). 
 McChesnby, O'Riley v. 
 McClaskey v. Mayor, etc. of Albany, 64 
 
 Barb. 310 ; p. 679 (specific perf.) 
 McClavb v. Paine, 41 How. 140; 2 Sweeny, 
 
 407; afld. 49 N. Y. 561; p. 108 
 
 (broker). 
 McClearns, Moran v. 
 McCleary, Wiggins v. 
 MoCloskey, Frazier v. 
 McClughan, Wood v'. 
 
 McClure, Cook v. 
 
 V. Mutual LiIfb Ins. Co., 55 N. Y. 
 
 651 ; p. 405 (insurance). 
 
 McColl v. Sun Mutual Ins. Co., 44 How. 
 432; affg. 34 iV. Y. &upr. 310 ; affd., 50 
 N. Y. 332; p. 754 (witness,). 
 
 V. , 34 N. Y. Supr. 313 ; p. 412 
 
 (insurance). 
 
 V. , 39 iV. Y. Supr. 330; pp. 411, 
 
 412 (insurance). 
 
 McCollum, Dowdney v, 
 
 McCoMBiE V. Spader, 1 Hun, 193 ; pp. 103 
 (bonajide pur.), 309 (evid.), 736 (wareh.) 
 
 McCombs v. Becker, 3 Hun, 342 ; pp. 284 
 (evidence), 426 (landlord and tenant). 
 
 , Phillips v. 
 
 McCoNiHE V. Exchange Bank of Lan- 
 singburgh, 49 How. 422; pp. 186 (cor- 
 poration), 683 (statute), 695 (sup. ct.) 
 
 McCoNNELL, Farley v. 
 
 , Mallory v. 
 
 McCoRD V. People, 46 N. F. 470 ; p. 212 
 (criminal law). 
 
 McCoRMACK, In matter of, 10 Abb. N. S. 
 234 ; 60 Barb. 128 ; p. 516 (N. Y. city). 
 
 McCormick, House v. 
 
 V. Penn. Cent. R. R. Co., 49 N. Y. 
 
 303; pp. 181 (conv.),238 (damages), 293, 
 329 (evid.), 380 (husband and wife), 418 
 (jurisdiction). 
 
 V. Sarson, 45 N. Y. 265 ; p. 667 (sale). 
 
 McCoTTER V. Lawrence, 4 Hun, 107 ; pp. 
 441 (lim. of actions), 679 (spec, perf.) 
 
 McCouN V. New York Cent, and Hud. 
 RiV. R. R. Co., 50 N. Y. 176 ; in part 
 reversing .7 Lans. 75 ; pp. 39 (appeal), 
 196 (costs), 569 (practice*. 
 
 McCoy, Horton v. 
 
 , People v. 
 
 McCrbady v. Thorn, 51 JV. Y. 454 ; aftg. 
 49 Barb. 438 ; p. 675 (ships, etc.) 
 
 McCuE V. Tribune Association, 1 Hun, 
 469 ; p. 626 (practice). 
 
 McCuLLOCH V. Norwood, 58 N. Y. 562 ; 
 revg. 36 N. Y. Supr. 180 ; pp. 1 (abate- 
 ment and rev.), 18,8 (corporation), 286 
 (evidence), 403 (insurance). 
 
 McCullough, Bainbridge v. 
 
 , People ex rel. Martin v. 
 
 McCuLLOUGHS Lead Company v. Strong,. 
 56 N. Y. 660 ; affg. 35 N. Y. Supr. 21; 
 pp. 25 (action), 81 (bailm,e,nt), 175 (con- 
 tract). 
 
 McCuLLY, Fort v. 
 
 McCuNN, Patterson v. 
 
 McCuRDY, FbLLERTON V. 
 
TABLE OF CASES. 
 
 841 
 
 McDanolds v. Titus, 57 N. Y. 655; p. 43 
 
 (appeal). 
 McDonald v. Frazier, 49 How. 320; p. 529 
 
 (parties). 
 V. James, 47 How. 474 ; 38 N. Y. Supr. 
 
 76 ; p. 623 (practice), 
 
 , People v. 
 
 , People ex rel. Kilmer v, 
 
 , Samuels v. 
 
 McDonnell v. Bauendahl, 4 Hun, 265 ; p. 
 
 72 (assignment). 
 
 V. Mayor, etc. New York, 4 Hun, 
 
 472 ; p. 522 (New York city). 
 
 , Page v. 
 
 McEntee v. Harrison, 58 N. Y. 654; p. 
 254 (defense). 
 
 — : — V. New Jersey Steamboat Co., 45 
 N. Y. 34 ; p. 183 (conversion). 
 
 McFeely, Tradesman's Nat. Bank v. 
 
 McGarren, Edelmuth v. 
 
 MgGaey v. People, 45 N. Y. 153 ; revers- 
 ing 2 Lam. 227 ; pp. 211, 226 (criminal 
 law). 
 
 McGinn v. ^osB, 11' ^66. N. S. 20; 33 
 N. Y. Supr. 346; pp. 251 (defense), 619 
 (practice). 
 
 McGiNNiB, Nagle v. 
 
 , VOORHBES V. 
 
 McGlone ». Goodwin, 3 Daly, 185; p. 531 
 
 (partition). 
 McGoLDRics. V. WiLLiTS, 52 iV. Y. 612; pp. 
 
 16 (action), 659 (sale). 
 McGovERN, Sternberger v. 
 McGrath v. Bell, 42 How. 182; 33 N. Y. 
 
 Supr. 195 ; pp. 456 (master and servant), 
 
 582 (practice). 
 V. Clark, 56 N. Y. 34; p. 95 (bills and 
 
 notes). 
 V. New York Cent, and Hud. River 
 
 R. R. Co., 1 Hun, 437; p. 352 (former 
 
 adjudication). 
 V. , 59 N. Y. 468 ; reversing 1 Hun, 
 
 437; p. 496 (negligence). 
 McGraw v. Godfrey, 56 N. Y. 610; affirm- 
 ing 14 Abb. JSr. S. 397; pp. 19 (action), 
 
 458, 462 (mechs. lien), 565 (pleading). 
 McGregor, Marshall v. 
 McGuckin v. Coulter, 10 Abb. N. S. 128 ; 
 
 33 N. Y. Supr. 324; pp. 284, 299 (evid.), 
 
 461 (mechs. lien). 
 
 „. , 33 N. Y. Supr. 328; p. 463 
 
 (mechs. lien). 
 
 McGuiRB, Bennett v. 
 
 v. People, 48 How. 517; 3 Hun, 213; 
 
 pp. 218, 222 (criminal law). 
 , People ex rel. Stemmleb v. 
 
 V. Sinclair, 47 How. 860; 35 N. Y. 
 
 Supr. 561; pp. 100 {bills and notes), 598 
 
 (practice). 
 MoHenry v. Hazard, 45 N. Y. 580; p. 270 
 
 (equity). 
 McHugh v. Imperial Fire Ins. Co., 48 
 
 How. 230; p. 171 (contract). 
 McKay, Fettretch v. 
 
 , Simpson v. 
 
 McKechnie v. Ward, 58 N. Y. 541; pp. 49 
 
 (appeal), 627 (principal and agent), 636, 
 
 (principal and surety). 
 McKee, Brown v. 
 V. Murphy, 34 N. Y. Supr. 261; pp. 19 
 
 (actions), 476 (mortgage). 
 McKellar v. Siglee, 47 How. 20; p. 430 
 
 (land, and tenant). 
 McKenzie, Beebb v. 
 
 . BiSSICK V. 
 
 , Hill v. 
 
 V. Smith, 48 N. Y. 143; affirming 27 
 
 How. 20. See Digest, vol. iii. 
 
 , Sprague v. 
 
 McKeon v. Lee, 51 N. Y. 300; reversing 4 
 
 Rob. 449 ; pp. 45 (appeal), 387 (injunc- 
 tion), 581 (practice). 
 McKie, Schwerin v. 
 McKiLLOP, Jeffras v. 
 McKim, Darragh v. 
 — -, Ledwich «. 
 McKiNLBY, DbGraff v. 
 — — V. Lamb, 64 Barb. 199; pp. 505 (new 
 
 trial), 737 (will). 
 V. Tucker, 6 Lans. 214; overruling 59 
 
 Barb. 93 ; pp. 672 (sheriff), 731 (waiver). 
 
 , Waring v. 
 
 McKiNNEY, People ex rel. Williamson v. 
 McKiNSTRY, Third National Bank of 
 
 Syracuse v. 
 McKnight v. Devlin, 52 N. Y. 399; pp. 44 
 
 (appeal), 322 (evidence), 667 (sale). 
 McLain v. Mayor, etc. of New York, 3 
 
 Daly, 32 ; p. 682 (statute). 
 V. Van Zandt, 48 How. 80 ; afE'd. 39 
 
 N. Y. Supr. 347 ; pp. 498 (negligence), 
 
 579 (practice). 
 McLane v. DeLeyer, 56 N. Y. 619 ; p. 204 
 
 (counterclaim). 
 McLaughlin v. Smith, 3 Hun, 250 ; p. 67 
 
 (appeal). 
 McLean u. McLean, 3 Hun, 395 ; p. 754 
 
 (wUl). 
 
 , White v. 
 
 McMahon V, Macy, 51 N. Y. 155 ; pp. 321 
 
 (evidence), 640 (R. R. Co.) 
 V. Raohb, 47 N. Y. 67 ; affg. 3 DcUy, 
 
842 
 
 TABLE OP CASES. 
 
 116 ; pp. 24 (action), 206 (common pleas) 
 
 450 (marine court). 
 McManus, Goelet v. 
 
 , PEOPI.E ex. rel. Robinson v. 
 
 , Robinson v. 
 
 , Tracy v. 
 
 McMaster, People ex. rel. Longwbll v. 
 B. Pbest. etc. Ins. Co. of North 
 
 America, 64 Barb. 536 ; pp. 277 (estop- 
 pel), 403 (insurance). 
 V. , 55 N. Y. 222 ; p. 277 (estoppel), 
 
 316 (evidence), 403 (insurance). 
 McMicken v. Lawrence, 39 N. Y. Sitpr. 
 
 ■ 540 ; p. 62 (appeal). 
 McMillan v. Seneca Lake G. andW. Co., 
 
 5 Hun, 12 ; pp. 459, 460 (mechs. lien). 
 McMuLKiN V. Bates, 46 How. 405 ; pp. 203 
 
 (costs), 681 (spec, perf.) 
 McMuLLiN, Millard v. 
 
 , Slade v. 
 
 McMcRBAY V. McMurray, 41 How. 41 ; 9 
 
 Abh. N. S. 315 i 60 Barb. 117 ; p. 610 
 
 (practice). 
 McNamaba v. Eisenlefp, 14 Abb. N. S. 
 
 25 ; p. 424 (justice court). 
 
 , Niagara Elevating Company v. 
 
 , Smith o. 
 
 McNamee, Yenni v. 
 
 McNeill, Bartlett v. 
 
 McNevins v. People, 61 Barb. 307 ; pp. 226, 
 
 231 (criminal law). 
 McNeil v. Tenth Natl. Bank, 46 N. Y. 
 
 325; revg. 55 Barb. 59 ; pp. 276 (estop- 
 pel), 568 (pleading). 
 McNiff, Bond v. 
 McNulty, Eastwood, v. 
 
 , Eldridge v. 
 
 McPadden v. New York Cent. R. R. Co., 
 
 44 N. Y. 478 ; revg. 47 Barb. 247 ; pp." 
 
 127 (carrier), 645 (R. R. Co.) 
 McQuade v. Irwin, 39 N. Y. Supr. 396 ; p. 
 
 98 (bills and notes).. 
 McRoberts v. Winant, 15 .466. N.S. 210; 
 
 pp. 205 (county treas.), 686 (stat. ) 
 McStea v. Matthews, 50 N. Y. 166 ; affg. 
 
 3 Daly, 349 ; pp. 276 (estoppel), 533, 537, 
 
 (partner). 
 McSwegan, Moban v. 
 McTeague v. Coulter, 38 iV. Y. Supr. 208; 
 
 pp. 438 (lim. of act.), 546, 563 (plead.) 
 McVeany v. Mayor, etc. of New York, 1 
 
 Hun, 35; pp. 14 (action), 638 (quo. war.) 
 Meach, People v. 
 Meacham v. Burke, 54 N. Y. 217 ; pp. 50 
 
 (appeal), 604 (practice). 
 Mead, Dutch v. 
 
 , Holmes v. 
 
 , Lawrence v. 
 
 V. Westchester Fire hua. Co., 3 Hun, 
 
 608 ; p. 171 (contract). 
 Mealis, White v. 
 Mechanics' Nat. B. ofN.Y., Ronalds v. 
 
 , White v. 
 
 Mechanics and Traders' Bank of Buf- 
 falo V. F. AND M. Natl. Bank op 
 
 Buffalo, 60 N. Y. 40 ; pp. 181 (con- 
 version), 239 (damages), 734 (waiver). 
 of Jersey City v. Dakin, 51 N. Y. 
 
 519 ; 54 N. Y. 681 ; pp. 14 (action), 48 
 
 (appeal), 618 (practice). 
 OF New York v. Crow, 60 N. Y. 85 ; 
 
 pp. 98 (bills and notes), 295 (evidence). 
 Mechanics and Traders' Fire Ins. Co., 
 
 O'Brien v. 
 
 , Williams v. 
 
 Medbury, Hubbell v. 
 
 V. Swan, 46 N. Y. 200; pp.39 (appeal), 
 
 562 (pleading). 
 Meech, Marshall v. 
 Meehan v. Forrester, 52 N. Y. 277 ; pp. 
 
 241 (damages), 632 (prin. and agent). 
 V. Harlem Savings Bank, 5 Hun, 
 
 439; p. 552 (pleading). 
 Meeker, Belden w. 
 V. Claghobn, 44 N. Y. 349 ; pp. 19 
 
 (action), 282 (eyid.), 629 (prin. and agt.) 
 Meeks, Tucker v. 
 Mehl v. Vonderwulbeke, 46 N. Y. 539; 
 
 p. 38 (appeal). 
 Mehrbach, Eberle 6. 
 
 , Walsh v. 
 
 Meigs, Hubbell v. 
 
 , Knapp v. 
 
 , morange v. 
 
 Meldrum, Shaw v. 
 
 Melick v. Knox, 44 N. Y. 676; p. 366 
 
 (guaranty). 
 Menagh v. Whitwbll, 52 N. Y. 146; pp. 
 
 360 (frauds, stat. of), 535 (partner.) 
 Menck, Bostwick v. 
 Mendelson v. Stout, 37 N. Y. Supr. 408; 
 
 pp. 253 (defense), 687 (prin. and surety). 
 Mendenhall v. Elinck, 51 N. Y. 246; affg. 
 
 50 Barb. 634 ; p. 72 (assignment). 
 Meneeley v. Meneeley, 1 Hun, 367; p. 
 
 711 (trade-mark). 
 Menges v. City of Albany, 56 N. Y. 374; 
 
 affg. 47 How. 244; pp. 31 (Albany), 150 
 
 (constitutional law). 
 Menier, Rocke v. 
 
 Mercantile Mutual Ins. Co., Allen v. 
 , audenreid v. 
 
TABLE OF CASES. 
 
 843 
 
 , Fabbri b. 
 
 , Hughes v. 
 
 , Sherwood v. 
 
 Mercer, Brown, v. 
 
 Merchant v. Belding, 49 How. 344; pp. 
 
 55 (appeal), 535 (partnersUp). 
 Merchants' Bank v. Scott, 59 Barb. 641; 
 
 pp. 91 (bills and notes), 379 (husb. and 
 
 wife), 606 (practice). 
 V. Thomson, 55 N. Y. 7; pp. 261 
 
 (dower), 476, 479, 480 (mortgage). 
 or Canada v. Holland, 4 Hun, 420 ; 
 
 p. 537 (partnership). 
 Merchants' Despatch Trans. Co., Shbl- 
 
 TON V. 
 
 Mer. Ex. Nat. Bank of Memphis v. Car- 
 Dozo, 35 JV. Y. Supr. 162 ; pp. 94 (bills 
 and notes), 289, 292 (evidence). 
 
 V. Com. Warehouse Co., 35 N. Y. 
 
 Supr. 214; p. 202 (costs). 
 
 V. , 49 iV. r. 635; reversing 33 N. 
 
 Y. Supr. 317; pp. 255 (defense), 551 
 (pleading), 724 (usury). 
 
 Merchants' Ins. Co., O'Brien v. 
 
 , townsend v. 
 
 Merchants' Nat. Bank v. Board op Su- 
 PERV. OP N. Y. County, 3 Hun, 156 ; 
 pp. 240 (damages), 512 (N. Y. city). 
 
 OF Syracuse v. Comstock, 55 iV. Y. 
 
 24; pp. 100, 102 (bills and notes). 
 
 OF W. Va., Chatham Nat. Bane of 
 
 N. Y. City v. 
 
 Meriden Britannia Co. v. Zinzen, 48 N. 
 Y. 247 ; afEg. 4 Rob. 312 ; pp. 5 (action), 
 361 (frauds, statute of). 
 
 Merrick, Bates v. 
 
 Meerifield, Cutler v. 
 
 V. Woodruff, 57 N. Y. 673; p. 43 
 
 (appeal). 
 
 Merrill v. Green, 55 N. Y. 270; pp. 20 
 (action), 553 (pleading). 
 
 , Hutchens v. 
 
 V. Merrill, 11 Abb. N. S. 74 ; pp. 600, 
 
 626 (practice). 
 
 V. Pattison, 44 How. 289 ; p. 66 (app.) 
 
 Merritt v. Briggs, 57 N. Y. 651; p. 305 
 (evidence). 
 
 V. Scott, 3 Hun, 657; pp. 439 (limita- 
 tion of actions), 648 (receiver). 
 
 , Wood v. 
 
 Merwin, Kip v. 
 
 , Rockwell v. 
 
 u. Wexel, 49 How. 115; p. 654 (re- 
 moval to U. S. court). 
 
 Merserole v. Merserole, 1 Hun, 66; pp. 
 741, 743, 753 (will). 
 
 , Willmot v. 
 
 Messenger, Hart :;. 
 
 V. Fourth Natl. Bank, 48 How. 542; 
 
 pp. 503, 504, 505 (new trial). 
 Messner v. People, 45 N. F. 1 ; pp. 222, 
 
 225, 227 (criminal law). 
 Metcalp v. Baker, 57 N. Y. 662 ; pp. 42 
 
 (app.), 238 damgs.), 603, 604, 605 (pract.) 
 V. , 11 Abb. N. S. 431 ; -34 N. Y. 
 
 Supr. 10; pp. 63 (appeal), 495 (neglig.), 
 
 602 (practice), 732 (waiver). 
 
 , Clark v. 
 
 Methfessel, Tournade v. 
 Metropolitan Board op Health v. 
 
 Schmades, 10 Abb. N. S. 205 ; 3 Daly, 
 
 282; p. 685 (statutes), 508 (N. Y. city.) 
 Met. Gas Light Co., Morey v. 
 , New York Central and Hud. Riv. 
 
 R. R. Co. v. 
 Metropolitan Ins. Co., Sarsfield v. 
 
 Natl. Bank, Moore v. 
 
 Paper Collar Co., Union Paper 
 
 -Collar Co. v. 
 
 Savings Bank, Schoenwald v. 
 
 Metz. v. Buffalo, Corry and Pittsburg 
 
 R. R. Co., 58 N. Y. 61; pp. 27 (action), 
 
 645 (R. R. Co.) 
 
 , Cramer v. 
 
 Met ZEN, KiLLiP v. 
 
 Meyberg, Matthews v. 
 
 Meyer v. Amidon, 45 N. Y. 169; pp. 48 
 
 (appeal), 355 (fraud). 
 V. Clark, 45 N. Y. 285; pp. 596 (prac- 
 tice), 757 (witness). 
 V. CuLLEN, 54 iV. Y. 392; pp. 45 (app'l.), 
 
 594 (practice). 
 V. HiBSHER, 47 N. Y. 265; pp. 95, 96 
 
 (bills and notes), 549 (pleading). 
 V. Huncke, 55 N. Y. 412; reversing 65 
 
 Barb. 304; pp. 94 (bills and notes), 356 
 
 (fraud). 
 , Kipp V. 
 
 , KONITZKY V. 
 
 V. Meyer, 44 How. 311; p. 452 (mar- 
 riage and divorce.) 
 
 V. Seebald, 11 Abb. N. S. 326, n.; p. 647 
 
 (receiver). 
 
 , Stiles v. 
 
 , Shuler v. 
 
 , Wyckoff v. 
 
 Michael v. Stanton, 3 Hun, 462 ; p. 454 
 (master and servant). 
 
 MiCHAELSj BRITENSTOOL V. 
 
 Michigan Central R. R. Co., Mills ». 
 
 Southern & N. Ind. R. R. Co., 
 
 Proutt v. 
 
844 
 
 TABLE OF CASES. 
 
 MiCELE, BlOODGOOD V. 
 
 MiDDLEBKOOK V. Broadbent, 47 N. Y. 443 ; 
 p. 419 ( jurisdictiun) . 
 
 MiDDLETOWN, ToWN OF, RiCH. Co. GAS- 
 LIGHT Co. V. 
 
 V. RoNDouT & Oswego R. R. Co-, 43 
 
 How. 144; 12 ^166. N.S. 276; affd. 43 How. 
 481 ; pp. 63 (apl.), 186 (corp.), 196 (costs), 
 205 (county judge), 884, 385 (injunction). 
 
 MiEKSONw. Hope, 2 Sweeny, 561; p. 119 (car.) 
 
 MiLBANK, BkOOKMAN V. 
 
 , Irvine v. 
 
 , Jones v. 
 
 MiLBIER, FOOTE V. 
 
 Miles v. Brown, 38 N. Y. Supr. 400; pp. 7 
 (actn.), 55 (app'L), 107 (b'ds.), 619 (prac.) 
 
 Military Parade Ground, Matter or, 
 60 N. Y. 319 ; affirming 48 How. 285; 2 
 Hun, 374; p. 520 (N. Y. city.) 
 
 Millard, Cooke v. 
 
 I'. McMullin, 5 Hun, 572; pp. 416 
 
 judgment), 463 (merger). 
 
 , Richards v. 
 
 , Stewart v. 
 
 Miller v. Adams, 52 N. Y. 409; a£Srming 
 7 Lans. 131; pp. 7 (action), 347 (fake 
 impris.), 527 (officer), 612, 625 (practice). 
 
 , Ancient City Sportsman's Clttb, 
 
 ETC., V. 
 
 V. Barber, 4 Hun, 802 ; pp. 313 (evi- 
 dence), 555 (pleading).. 
 
 , Beal v. 
 
 , Board of Sups, op New York v. 
 
 V. Bowles, 58 N. Y. 253 ; p. 620 (pract.) 
 
 V. Brown, 56 N. Y. 383 ; pp. 289 (evi- 
 dence), 372 (highway), 732 (waiver). 
 
 V. Buff. & St. L. R. R. Co., 46 N. Y. 
 
 687; p. 371 (highway). 
 
 , Card v. 
 
 V. Church, 5 Hun, 342 ; p. 525 (nuis.) 
 
 , Church v. 
 
 V. Clark, 5 Lans. 388 ; pp. 294 (evi- 
 dence), 634 (principal and agent). 
 
 V. CoATES, 2 Hun, 156; p. 262 (duress). 
 
 — — V. -. , 2 Hun, 668; p. 200 (costs). 
 
 V. Downing, 54 N. Y. 631; p. 29 (ad- 
 verse possession). 
 
 , Dubois v. 
 
 , Gale v. 
 
 , Hewitt v. 
 
 , Horstman v. 
 
 V. Hunt, 1 Hun, 491; p. 379 (husband 
 
 and wife). 
 
 ~. — V. Irish, 3 Hun, 352; p. 301 (evidence). 
 
 , Kendall v. 
 
 «. Knox, 48 N. Y. 232 ; pp. 20 (action), 
 
 430 (landlord and tenant). 
 V. Levi, 44 N. Y. 488 ; p. 692 (sum- 
 
 mary proceedings). 
 V. Loeb, 64 Barb, 454; pp. 52 (appeal), 
 
 649 (receiver). 
 
 , LUDDINGTON V. 
 
 V. Mayor, etc. of N. Y. City, 3 Hun, 
 
 35; pp. 276 (estoppel), 521 (N. Y. city). 
 
 V. Miller, 43 How. 125 ; p. 453 (marr 
 
 riage and divorce). 
 
 , Moore v. 
 
 V. National Steamship Co., 4 Hun, 
 
 654; p. 8 (action). 
 
 V. O'Kain, 5 Hun, 39; p. 88 (banks). 
 
 V. People, 52 N. Y. 304; p. 226 (crim- 
 inal law). 
 
 V. Perrine, 1 Hun, 620; p. 65 (appeal). 
 
 , Smith v. 
 
 , Stanton v. 
 
 , Stone v. 
 
 V. Talcott, 54 N. Y. 114; pp. 99 (bills 
 
 and notes), 442 (limitation of actions). 
 
 - — V. Tyler, 58 N.. Y. 477 ; pp. 37 (ap- 
 peal), 609 (practice). 
 
 V. White, 50 N.Y. 137 ; reverg. S. C, 
 
 10 Abb. N. S. 385; 59 Barb. 434; pp.193 
 (corporation), 286, 287, 307 (evidence). 
 
 V. , 4 Hun, 62; p. 566 (pleading). 
 
 MiLLERD V. Thorn, 15 Abb. N. S. 371 ; 56 
 N. Y. 402 ; pp. 49 (appeal), 539 (part- 
 ner), 540 (payment), 578 (practice). 
 
 MiLLiKEN, Smith v. 
 
 MiLLiMAN, Fowler v. 
 
 V. N. Y. Central & Hud. Riv. R. R. 
 
 Co., 4 Hun, 409 ; p. 495 (negligence). 
 
 Milliner v. Lucas, 3 Hun, 496; pp. 61 
 (appeal), 314 (evidence). 
 
 Mills, Adams v. 
 
 Mills w. Bliss, 55 N. Y. 139; p. 574 (prac.) 
 
 V. Davis, 35 N. Y. Supr. 355 ; affirmed 
 
 53 N. Y. 349; pp. 39 (appl.), 611 (prac.) 
 
 , Disbrow v. 
 
 '-t — V. Hildreth, 5 Hun, 364; pp. 394 (in- 
 solvent debtor), 615 (practice). 
 
 , Howell v. 
 
 V. Mich. Central R. R. Co., 45 N. Y. 
 
 622; pp. 121 (carrier), 643 (R. R. Co.) 
 
 V. Stewart, 62 Barb. 444; p. 189 (corp.) 
 
 , WlLS0N~W. 
 
 MiLNOR V. New York and New Haven R. 
 
 R. Co., 53 N. Y. 363; a%. 4 Daly^ 355; 
 
 pp. 126 (carrier), 350 (foreign corps.) 
 Milton v. Hudson Riv. Steamboat Co., 
 
 4 Lans. 76; p. 317 (evidence). 
 
TABLE OF CASES. 
 
 845 
 
 Milwaukee, etc. R. R. Co., Sbcomb v. 
 
 MiNCH, Nat'l. Life Ins. Co. v. 
 
 MiNEK «. Beeckmabtj 14 Abb. N. S. 1; 50 
 N. F. 337; revg. 11 Abb. N. S. 147; 42 
 How. 83; 33 N. Y. Supr. 67; pp. 438, 
 439, 440 (lim. of actions), 474 (mortg.), 
 550 (pleading). 
 
 V. Gardineb, 4fiun, 132; p. 572 (prao.) 
 
 , HUTCHIKGS V. 
 
 V. JuDSON, 2 Hun, 441; p. 398 (ins.) 
 
 V. Mayor, etc. of New York city 
 
 37 N. Y. Supr. 171; pp. 55 (appeal), 
 
 245, 246 (deed). 
 
 , Russell v. 
 
 MiNiBR V. MiMiER, 4 Lans. 421; pp. 381 
 
 (husband and wife), 755 (witness). 
 
 MiNSLER, Re A V. 
 
 MiNNERLY, Stephens v. 
 
 MiNOT, LUDWIG V. 
 
 MiNSHALL V. Arthur, 2 Hun, 662; p. 181 
 
 (conTersion). 
 MiNTURN, Carpenter v. 
 , Hall v. 
 
 MiNZESHEIMER ». CONTINENTAL InS. Co., 37 
 
 N. Y. Supr. 332; p. 401 (insurance). 
 MiSNER, Bliss v. 
 
 Missouri, K. and T. Ry. Co., Baxter v. 
 Mitchell v. Bartlett, 51 N. Y. 447; affg. 
 
 52 Barh. 319 ; See Digest, vol. iv. 
 
 , Briggs v. 
 
 V. Dix, 42 How. 475; p. 653 (removal 
 
 to U. S. court). 
 Mitchell, Flood v. 
 V. New York Cent'l. and Hud. R..R. 
 
 Co., 3 Hun, 535 ; pp. 238 (damages), 497 
 
 (negligence). 
 
 ». Read, 61 Barb. 310 ; p. 534 (partner.) 
 
 V. Smith, 53 N. Y. 413 ; p. 507 (N. Y. 
 
 city). 
 
 ». Vermont Copper Mining Co., 47 
 
 _ How. 218 ; pp. 185 (corp.), 706 (tender). 
 V. West, 55 JV^. Y. 107 ; p. 364 (frauds, 
 
 statute of). 
 
 MiTTNACHT, BeRNER V. 
 
 V. Kelley, 46 How. 457; p. 133 (chat. 
 
 mortgage). 
 
 , Kelley v. 
 
 Mix, Morange v. 
 
 , Watertown Bank and Loan Co. v. 
 
 MoFFATT V. Cauldwell, 3 Hun, 26; p. 435 
 
 (libel). 
 
 V. TuTHiLL, 4 Hun, 75; p. 387 (inj.) 
 
 Mohrmann v. Bush, 2 Hun, 674; p. 602 
 
 (practice). 
 MoLLER V. AzNAR, 11 Abb. N. S. 233 ; p. 615 
 
 (practice). 
 
 MoNCBiEF V. Ross, 50 N. Y. 431 ; p. 748 
 
 (will). 
 MoNGEON V. People, 55 N. Y. 613 ; pp. 
 
 682, 690 (statutes). 
 Monroe, Austin v. 
 
 V. Peck, 3 Daly, 128 ; p. 236 (damag.) 
 
 V. Upton, 6 Lans. 255; affd. 50 iV. Y. 
 
 593 ; pp. 88, 89 (bailks). 
 Montgomery, Bullis v. 
 , Chipman v. 
 
 , People v. 
 
 — ■■ — , Shedd v. 
 
 , Williams v. 
 
 Montrail v. Hutchins, 49 How. 105 ; p. 
 
 611 (practice). 
 MoNTROss V. Wheeler, 4 Lans. 99 ; p. 344 
 
 (ex'rs. and adm'rs.) 
 Moody v. Andrews, 39 N. Y. Supr. 302 ; 
 
 pp. 98 (bills and notes), 563 (pleading). 
 V. Leverich, 14 .466. N. S. 145; 4 Daly, 
 
 401; pp. 10 (action), 235 (damages), 445 
 
 (master and servant). 
 V. Osgood, 60 Barb. 644 ; affirmed 54 
 
 N. Y. 488 ; pp. 492, 497 (negligence),- 
 
 594 (practice). 
 MooNEY, Day v. 
 
 V. Elder, 56 N. Y. 238; p. 108 (broker). 
 
 V. Hudson Riv. R. R. Co., 3 Daly, 105; 
 
 p. 451 (marine court). 
 
 Moor, Tifft v. 
 
 Moore, Bank of Havana v. 
 
 V. BixBY, 4 Hun, 802 ; p. 659 (sale). 
 
 V. Brink, 4 Hun, 402 ; p. 415 (joint 
 
 stock company). 
 
 :, Damon v; 
 
 V. Eastman, 1 Hun, 578 ; p. 384 (inf.) 
 
 V. Erie Ry. Co., 7 Lans. 39; pp. 61 
 
 (appeal), 141 (oonf. of goods), 182 (con- 
 version), 705 (tenancy in common). 
 
 , Haight v. 
 
 V. Hamilton, 44 N. Y. 666 ; affg. 48 
 
 Barb. 120. See Digest, vols, i., ii. and 
 iii. 
 
 , LOCKLIN V. 
 
 V. Mausert, 5 Lans. 173 ; affirmed 49 
 
 N. Y. 332; pp. 459 (mechanic's lien), 686 
 (statutes). 
 
 V. Mayor, etc. of New York, 4 Hun, 
 
 545 ; p. 310 (N. Y. city). 
 
 V. McCarthy, 4 Hun, 261; p. 430 
 
 (landlord and tenant). 
 
 V. Metropolitan Nat. Bank, 55 N. 
 
 F. 41; pp. 73 (assignment), 290 (evi- 
 dence), 580 (practice). 
 
 — — V. Miller, 6 Lans. 396 ; pp. 103 {bona 
 /de holder), 276 (estoppel). 
 
846 
 
 TABLE OF CASES. 
 
 V. Moore, 47 N. Y. 467 ; pp. 144 (const. 
 
 law), 381 (husb. and wife), 682 (stamps). 
 
 V. People, 53 N. Y. 639; p. 224 (crim- 
 inal law). 
 
 V. PiCKARD, 1 Hun, 608 ; p. 669 (sale). 
 
 V. PiLLSBURY, 43 How. 142; p. 573 
 
 (practice). 
 
 V. Pitts, 53 N. Y. 85; pp. 416 (judg- 
 ment), 429 (landlord and tenant). 
 
 -, Seaver v. 
 
 , Van Nostrand v. 
 
 MoORES V. LuNT, 13 Ahh. N. S. 166; again, 
 1 Hun, 650 ; p. 673 (ships, etc.) 
 
 V. , 1 Hun, 650 ; afEd. 60 N. Y. 
 
 649 ; p. 549 (pleading). 
 
 Moot, Horton v. 
 
 , Howard v. 
 
 MoRAN V. Bogert, 3 Hun, 603 ; pp. 86 
 (bankr.), 204 (counterclaim). 
 
 V. Chase, 52 N. Y. 346; pp. 458, 459, 
 
 461, 462 (mechanic's lien). 
 
 MoRAN V. Darin, 1 Hun, 490; affirmed 60 
 N. Y. 637; p. 728 (vendor and purchr.) 
 
 V. McClearns, 41 How. 289 ; 4 Lans. 
 
 288; 60£arS. 388; pp. 375 (highways), 
 527 (officer), 588 (practice). 
 
 ; V. , 43 How. 77 ; p. 67 (appfeal). 
 
 ». , 44 How. 30 ; 63 Barb. 185 ; p. 
 
 33 (amendment), 375 (highway). 
 
 V. McSwegan, 33 N. Y. Supr. 350; p. 
 
 234 (damages). 
 
 , Parton v. 
 
 Morange, Jacobs v. 
 
 V. Meigs, 54 N. Y. 207; p. 602 (pract.) 
 
 V. Mix, 44 m F.315; pp. 112 (Brook- 
 lyn), 253 (defenses), 296 (evidence), 491 
 (negligence). 
 
 Moravia, Town or. So. Cent. R. R. Co. v. 
 
 More v. Bennett, 48 N. Y. 472 ; reversing 
 48 Barb. 229; 33 How. 177; pp. 438 
 (libel), 548 (pleading). 
 
 V. , 65 Barb. 388; p. 1 (abate, and 
 
 rev.) 
 
 V. Rand, 60 N. Y. 208 ; p. 553 (plead.) 
 
 Morehouse, Darnall v. 
 
 , Graff v. 
 
 , Wood v. 
 
 V. Yeager, 38 N. Y. Supr. 50; p. 52 
 
 (appeal). 
 
 Morey v. Metropolitan Gab Light Co., 
 
 38 N- Y. Supr. 185; pp. 234 (damages), 
 
 365 (Gas Co.) 
 V. Safe Deposit Co., 34 N. Y. Supr. 
 
 154; p. 295 (evidence). 
 V. Webb, 58 N. Y. 350 ; affirming 65 
 
 Barb. 22; p. 631 (principal and agent). 
 
 Morgan, In matter op, 63 Barb. 621; p. 
 
 718 (trusts). 
 
 , 56 N. Y. 629 ; p. 205 (county judge). 
 
 , Barnes «. 
 
 V. Hannas, 13 Abb. N. S. 361 ; 49 N. 
 
 Y. 667; reversing 39 Barb. 20; p. 369 
 
 (guardian and ward). 
 V. HoLLADAT, 48 How. 86; 38 N. Y. 
 
 Supr. 53; p. 338 (execution). 
 
 V. , 38 N. Y. Supr. 117; pp. 338 
 
 (execution), 418 (jurisdiction)-. 
 
 V. Mulligan, 50 JV. Y. 665; p. 47 (ap- 
 peal). 
 
 , People v. 
 
 , People ex rel. Aiken v. 
 
 V. Skidd Y, 36 N. Y. Supr. 152; p. 297 
 
 (evidence). 
 V. Smith, 5 Hun, 220; p. 432 (landlord 
 
 and tenant). 
 V. Whittakbr, 14 Abb. N. S. 127 ; p. 
 
 573 (practice). 
 Morley v. Stevens, 47 How. 228; p. 416 
 
 (judgment). 
 Morning Side Park Case, 10 Abb. N: S. 
 . 838; pp. 464 (moneyhad), 520 (N. Y. 
 
 city). 
 MoRRiL V. Cooper, 65 Barb. 512 ; p. 679 
 
 (specific performance). 
 Morris, First National Bank v. 
 
 . Hewitt v. 
 
 , schanck v. 
 
 V. Wheeler, 45 JV. Y. 708; pp. 40 
 
 • (appeal), 476 (mortgage). 
 
 Morris Ax and Tool Co., Parks v. 
 Morrison v. Erie Ry. Co., 56 N. Y. 302 ; 
 
 pp. 500 (neg.), 592 (practice.) 
 V. Morrison, 4 Hun,, 410 ; pp. 474, 478 
 
 (mortgage). 
 Morris Run Coal Co. v. Salt Co. of On., 
 
 58 N. Y. 667; pp. 70 (arbit.), 164 (cont.) 
 Morse, Applegate w. 
 V. Erie Ry. Co., 65 Barb. 490 ; p. 496 
 
 (negligence). 
 Morse, Home Ins. Co. v. 
 
 V. Stanton, 51 N. Y. 649; p, 730 
 
 (waiver). 
 
 MoRSS, Chaffee v. 
 
 , Crippin v. 
 
 — — u. Gleason, 2 Hun, 31; p. 539 (partner- 
 ship), 578 (pract.), 637 (prin. and surety). 
 
 V. OsBORN, 64 Barb. 543; pp. 58 (app'l.), 
 
 70 (arbitration), 822 (evidence). 
 
 — V. Purvis, 2 Hun, 542; p. 840 (executn.) 
 
 — V. Salisbury, 48 N. Y. 636; pp. 163 
 (contract), 198 (costs), 245 (deed), 314, 
 318 (evidence). 
 
TABLE OF CASES. 
 
 847 
 
 MoKss V. Salisbuby, 
 
 1). Sherrill, 63 Barb. 21; pp. 505 (new 
 
 trial), 587 (practice). 
 Mortimer, Mappier v. 
 Morton, Tbkd v. 
 V. Weir, 6 Hun, 177; p. 426 (landlord 
 
 and tenant). 
 
 , Woodbury v. 
 
 MoscHowiTz, O'Connor ». 
 
 Moses v. Banker, 2 Sweeny, 267; p. 658 
 
 (sale). 
 
 , HOPPOCKU. 
 
 V. Waterbury Button Co., 46 How. 
 
 528 ; 15 Abb. N. S. 205; p. 620 (pract.) 
 V. , 37 N. Y. Supr. 393; pp. 19 
 
 (action), 551 (pleading), 722 (undertkg.) 
 Mosey v. City of Troy, 61 Barb. 580; pp. 
 
 485 (mun. corp.), 493 (negl. ), 591 (pract.) 
 Mosher, Godfrey v. 
 
 , Happy «. 
 
 , Hotchkiss v. 
 
 V. Randall, 52 N. Y. 649; p. 723 
 
 (usury). 
 
 , Thdeman t>. 
 
 Mosselman v. Caen, 1 Hun, 647 ; pp. 25 
 
 (action), 545 (pleading). 
 Motherwell, Fairbanks v. 
 Mott v. Lansing, 5 Lans. 516; p. 33 
 
 (amendment). 
 V. , 57 N. Y. 112; pp. 16 (action), 
 
 673 (ships, &c.) 
 
 , People ex rel. Mann v. 
 
 V. Richtmeyer, 57 N. Y. 49; pp. 244 
 
 (deed), 317 (evidence). 
 MouLsoN, Hubbell v. 
 Mount v. Lyon, 49 N. Y. 552; p. 667 (sale.) 
 Mount Vernon, Village of, Master- 
 ton V. 
 Mowers v. Fethers, 6 Lans. 112; p. 82 
 
 (bailment.) 
 MowREY V. Central City Railway, 51 
 
 N. Y. 666; p. 592 (practice). 
 
 MOWRY, LOOMIS V. 
 
 MowBY V. Sanborn, 62 Barb. 223; pp. 474, 
 475 (mortgage). 
 
 Mudge v. Gilbert, 43 How. 219; p. 576 
 (practice). 
 
 Mudgett, Bank of Commonwealth v. 
 
 MuiR, Makgrof v. 
 
 MuLDOON, Ellsworth v. 
 
 V. Pitt, 4 Daly, 105 ; affirmed 54 
 
 N. Y. 269; pp. 46, 48 (appeal), 458 (me- 
 chanic's lien). 
 
 MuldoVney v. Cornet, 3 Daly, 170; p. 612 
 (practice). 
 
 Mclford, BacM v. 
 
 McLLALY t>. Mayor, etc. of New York, 3 
 
 Hun, 661; pp. 510 (N. Y. city), 685 
 
 (statutes). 
 MuLLANEY V. SPENCB, 15 .466. N. S. 319 ; 
 
 pp. 490, 498, 501, 502 (negligence). 
 Mullen J). St. John, 57 N. Y. 567; p. 298 
 
 (evidence), 492 (negligence). 
 MuLLER V. Earle, 35 N. Y. Supr. 461 ; p. 
 
 433 (landlord and tenant). 
 -v. , 37 N. Y. Supr. 388; pp. 562, 
 
 565 (pleading). 
 
 , Fellows v. 
 
 V. Hall, 49 How. 374; p. 624 (pract.) 
 
 V. HiGGiNS, 44 How. 224; 13 Abb. N. S. 
 
 297; p. 196 (costs). 
 
 , Hofpbnbbrth v. 
 
 V. Mayor, etc. of N. Y., 5 Hun, 282; 
 
 p. 507 (N. Y. city). 
 V. Perrin, 14 .466. N. S. 95; p. 615 
 
 (practice) . 
 V. PoNDiR, 55 N. Y. 325 ; affg. 6 Lam. 
 
 472 ; pp. 93, 99 (bills and notes), 281 
 
 (estoppel), 635 (principal and agent), 649 
 
 (receiver). 
 Mulligan v. Barring, 3 Daly, 75 ; p. 138 
 
 (cloud on title). 
 V. Elias, 12 ^66. N. S. 259 ; pp. 387 
 
 (injunction), 524 (nuisance). 
 
 , Morgan v. 
 
 , Smith v. 
 
 MuLVY, Johnson v. 
 
 MUMFORD, SCHOLEY V. 
 
 MUNDORFF V. MUNDORFK, 1 Hun, 41 ; p. 600 
 
 (practice). 
 V. , 59 N. Y. 635 ; before 1 Hun, 
 
 306 ; p. 39 (appeal). 
 MuNGER V. Baker, 65 Barb. 539 ; pp. 10 
 
 (action), 714 (trespass). 
 — , Hall v. 
 
 , Paul v. 
 
 McNN V. WoRRALL, 53 N. Y. H ; p. 249 
 
 (deed). 
 
 MuNSON, Field v. 
 
 , Teft v. 
 
 Murdock v. Gilchrist, 52 N. Y. 242 ; pp. 
 
 318 (evidence), 467 (money paid). 
 Murphy, Ayrault v. 
 Murphy v. Baldwin, 41 How. 270; 11 .466. 
 
 N. S. 407; p. 618 (practice). 
 V. Dart, 42 How. 31 ; pp. 56 (appeal), 
 
 312, 327 (evidence). 
 
 , DePeyster v. 
 
 V. Haswell, 65 Barb. 380 ; p. 506 (new 
 
 trial). 
 — — , EELLoae V. 
 
848 
 
 TABLE OF CASES. 
 
 V. Kbyes, 48 How. 118 ; 2 Hun, 375 ; p. 
 
 339 (execution). 
 V. , 39 N. Y. Supr. 18 ; pp. 96 
 
 (bills and notes), 586 (practice). 
 V. LiPPE, 85 N. Y. Supr. 542 ; pp. 59 
 
 (appeal), 97 (bills and notes), 488 (lien.), 
 
 734 (waiver). 
 
 , McKee v. 
 
 V. Peopi-E; 8 Hun, 114; p. 220 (crim. law). 
 
 V. , 4 Hun, 102 ; pp. 221, 225, 227 
 
 (criminal law). 
 V. Salem, 1 Hun, 140 ; p. 674 (ships, 
 
 etc). 
 -, — V. Spaulding, 46 N. Y. 556 ; p. 86 (ap- 
 peal). 
 MuRKAT V. Bull's Head Bank, 3 Daly, 
 
 364 ; pp. 6 (action), 72 (assignment), 257 
 
 (district court). 
 
 V. Church, 1 Hun, 49 ;p. 544 (plead.) 
 
 Murray v. Clark, 4 Daly, 468 ; pp. 338 
 
 (evidence), 848 (pilots). 
 
 , Coulter v. 
 
 V. Fisher, 5 Lam. 98; p. 439 (limitation 
 
 of actions). 
 V. Harway, 56iVr. Y. 337 ; pp. 178, 174 
 
 (contract), 429 (landlord and tenant). 
 
 f HiGGINS ». 
 
 V. Knapp, 42 How. 462 ; 62 Barh. 566 ; 
 
 p. 393 (injunction). 
 
 , Livingston v. 
 
 , People ex. rel. Babcock v. 
 
 V. Smith, 4 Daly, 277; pp. 108 (broker), 
 
 593 (practice), 665 (sale). 
 , Taggart v. 
 
 V. Waller, 42 How. 64 ; pp. 56 (ap- 
 peal), 432 (landlord and tenant). 
 
 Murtaugh, Verona Central Cheese 
 Factory v. 
 
 Mushlitt v. Silverman, 50 iV. Y. 360 ; 
 p. 461 (mechs. lien). 
 
 MuTL. Benefit Life Ins. Co., Bradley v. 
 
 , HiNCKEN V. 
 
 , Van Zandt v. 
 
 , Weed v. 
 
 Mutual Ins. Co. op New York, Leggett v. 
 Mutual Life Ins. Co. op New York v. 
 
 Salem, 3 Hun, 117; p. 480 (mortgage). 
 Mutual Life Ins; Co. op New York, 
 
 Barry v. 
 
 , Edington v. 
 
 , Fowler v. 
 
 , McClure v. 
 
 , Pohalaski v. 
 
 Myers v. Barlow. 
 
 , Clinton v. 
 
 V. DeMier, 4 Daly, 343; affd, 52 N. 
 
 Y. 647 ; pp. 174 (contracts), 261 (dower). 
 V. Dixon, 45 How. 48; 35 N. Y. Supr. 
 
 390; pp. 489 (negl.), 579, 591, 597 
 
 (practice), 732 (waiver). 
 
 , Lynch v. 
 
 , McCarty v. 
 
 , People e. 
 
 V. Willard, 60 N. Y. 686 ; p. 279 
 
 (estoppel). 
 Mygatt 1). Wilcox, 45 N. Y. 806; a%. 
 
 S. C, 1 Lans. 55. See. Digest, vol. 
 
 iv. 
 
 N. 
 
 Nagle v. McGinniss, 49 How. 193; p. 344 
 
 (exrs. and adm.) 
 f. Stagg, 15 Ahh. N. S. 348; p. 648 
 
 (receiver). 
 Narragansett Fire and M Ins. Co., 
 
 Townsend v. 
 Nash v. Douglass, 12 Ahb. N. S. 187 ; p. 3 
 
 (abduction). 
 
 M. Kemp, 49 flbto. 522; p. 264 (easem.) 
 
 V. Manuf. and Trads. Bank, 5 Hun, 
 
 568; p. 725 (usury). 
 
 , People ex rel. Welsh v. 
 
 National Bank op Commonwealth, 
 
 Benedict v. 
 of Chemung v. City, of Elmira, 53 
 
 N. Y. 49; revg. 6 Lans. 116; pp. 7 (act.), 
 
 701 (taxes). 
 of Commerce v. Nat'l. Mechanics 
 
 Bkg. Association, 46 How. 874 ; 35 
 iV^. Y. Supr. 283; affirmed 55 N. Y. 
 211; pp. 8 (action), 466 (money paid). 
 
 - op Commonwealth, Cont'l. Nat'l. 
 Bank v. 
 
 -, JUSTH V. 
 
 -, Security Bank of N. Y. v. 
 
 - V. Temple, 2 Sweeny, 344; 89 How. 432. 
 See Digest, vols. i. and iv. 
 
 - of Fisheill v. Speight, 47 N, Y. 668; 
 pp. 84 (banks, etc.), 843 (exrs.and adm.) 
 
 - OF Ft. Edward v. Washington Co. 
 Nat'l. Bank, 5 Hun, 605; pp. 17 
 (action), 84 (banks). 
 
 - OP Newburgh v. Smith, 5 J?u», 183; 
 p. 540 (payment). > 
 
 - OP Newport, Evertson v. 
 
 - op Potsdam, Whitney v. 
 
TABLE OF CASES. 
 
 849 
 
 OP Salem J). Thomas, 47 N. Y. 15; p. 
 
 536 (partnership). 
 Nat'l. City Bank op Brooklyn, Havens v. 
 
 , Clake v. 
 
 , Marine Nat'l. Bank v. 
 
 — — OF New York, Oddie v. 
 Nat'l. Citizens' Bank, Vookhees v. 
 Nat'l. Currency Bank, Sdybell v. 
 Nat'l. Lipe Ins. Co. v. Minch, 53 N. Y. 144; 
 
 revg. 6 Lans. 100; pp. 408 (insurance), 
 
 630 (prill, and agent). 
 National Mechs. Bkg. Ass'n, Nat. Bk. 
 
 OP Commerce v. 
 V. Mariposa Co., 60 Barb. 423 ; p. 648 
 
 (receiver). 
 
 , Strong v. 
 
 , Stuyvesant Bank v. 
 
 Nat'l. Mohawk Valley Bk., Caldwell v. 
 Nat'l. Park Bank v. Ninth Nat'l. Bank 
 V. Fourth Nat'l. Bank, 46 iV. Y. 77 
 
 revg. 55 Barb. 87 ; 7 Abb. N. S. 120; pp. 
 
 94 (bills andnotes), 466 (moneypaid). 
 Nat. State Bank op Troy v. Hibbard, 
 
 45 How. 280 ; pp. 248 (deed), 478 (mort- 
 gage). 
 V. Rising, 4 Hun, 793; pp. 57 (appeal) 
 
 96 (bills and notes), 301 (evidence). 
 Nat. Steamship Co., Ahern v. 
 
 , Miller v. 
 
 Nat. Un. Bank of Watertown v. Lan- 
 
 DON, 45 N. Y. 410; pp. 24 (action), 533 
 
 (partnership); 
 Nauman u. Caldwell, 2 Sweeny, 212; pp. 
 
 238 (damages), 310, 329 (evidence). 
 Neapfie v. Habt, 4 Lans. 4; p. 667 |sale). 
 Neff v. Friedman; 2 Sweeny, 607; pp. 318 
 
 (evidence), 583 (practice). 
 Negley v. Devlin, 12 Abb. N. S. 210 ; pp. 
 
 13 (action), 443 (lottery). 
 Neill, Sinclair v. 
 Neilson, People ex rel. Kedian v. 
 Nelles, Hees v. 
 Nellis, Stellar v. 
 Nelson, Audas v. 
 V. Hudson Riv. R. R. Co., 48 N. Y. 
 
 498; pp. 116 (carrier), 629 (prin. & agt.) 
 U.Kerr, 59 N. Y. 224 ; pp. 18 (action), 
 
 672 (sheriff). 
 V. LULING, 46 How. 355; 36 N. Y. Supr. 
 
 544; p. 356 (fraud). 
 
 , Macy v. 
 
 V. Mayor, etc. op New York, 5 Hun, 
 
 190; p. 510 (New York city). 
 - — V. Odiorne, 45 N. Y. 489; p. 132 
 
 (charter party). 
 
 , Osborn v. 
 
 54 
 
 , "People ex rel. Blossom v. 
 
 V. Plimpton Fire Proof E. Co., 55 
 
 N. Y. 480; p. 176 (contract). 
 
 , Shorter v. 
 
 Nevins, Talmage v. 
 
 Neudecker v, KoHLBERG, 3 Daly, 307; p. 
 538 (partnership). 
 
 New v. Anthony, 4 Hun, 52 ; p. 198 (costs). 
 
 Newberry v. Fubnival, 58 N. Y. 638 ; affg. 
 46 How. 139; pp. 176 (contract), 584 
 (practice), 731 (waiver). 
 
 V. Wall, 35 N. Y. Supr. 106 ; pp. 665, 
 
 666 (sale). 
 
 Newbrough, Foster v. 
 
 Newbubgh, City op, Gillespie v. 
 
 Newell, Borell v. 
 
 V. Roberts, 54 N. Y. 677; p. 382 (hus- 
 band and wife). 
 
 V. Warren, 44 N. Y. 244; p. 135 (chat- 
 tel mortgage). 
 
 V. Wheeler, 48 N. Y. 486 ; pp. 6 (act.), 
 
 112 (Brooklyn), 197 (costs). 
 
 Newfibld v. Copperman, 47 How. 87 ; 15 
 Abb. N. S. 360; pp. 436 (libel), 444 
 (malicious prosecution). 
 
 N. H. Steamboat Co., Russell Manup'g. 
 Co. V. 
 
 Newichawanick Co., Hill v. 
 
 New Jersey Mutual Life Ins. Co., De 
 Camp v. 
 
 N. Jersey Railway and Trans. Co., Lis- 
 
 COMB V. 
 
 N. Jersey Southern R. R. Co., Allen v. 
 N. Jersey Steamboat Co., Austin v. 
 
 , BlANCHARD 1). 
 
 , Caldwell v. 
 
 , Cleveland v. 
 
 , McEntee v. 
 
 , Ontario Bank v. 
 
 , swartwout v. 
 
 , Tinney v. 
 
 , Whitehall Trans. Co. v. 
 
 , Withers v. 
 
 , ZiNN V. 
 
 N. Jersey Steam Nav. Co., Sturges v. 
 
 N. Jersey West Line R. R. Co., Pusey v. 
 
 N. Jersey Zinc Co., Holbrooke. 
 
 Newkirk, Clute v. 
 
 New Lamp Chimney Co., Ansonia Brass 
 AND Copper Co. o. 
 
 Newlin v. Lyon, 49 N. Y. 661 ; pp. 41 (ap- 
 peal), 313, 316 (evidence). 
 
 Newman v. Alvord, 51 JV. Y. 189 ; affg. 
 49 Barb. 588. See Digest, vols. ii. and iii.. 
 
 V. Beckwith, 5 Lans. 80 ; p. 672 
 
 (sheriff). 
 
850 
 
 TABLE OF CASES. 
 
 N, 
 
 N, 
 
 Newman v. Frost, 52 N. Y. 422 ; pp. 91, 
 
 102 (bills and notes). 
 V. GoDDARD, 48 How. 363 ; 3 Han, 70 ; 
 
 pp. 62 (appeal), 420 (jurisdiction). 
 V. People, 6 Lans. 460; 63 Barb. 630; 
 
 p. 226 (criminal law). 
 V. Sups, of Livingston Co.,45iV. F. 
 
 676 ; pp. 18 (action), 558 (pleading), 703 
 
 (taxes). 
 Newton, Christy v. 
 — V. Hook, 48 iV. Y. 676; p. ,352 (former 
 
 adjudication). 
 V. Porter, 5 Lans. 416; pp. 9 (action), 
 
 716 (trust). 
 Newtown, Town of, Kkapp v. 
 
 AND Flushing R. R. Co., Higgins v. 
 
 N. Y. Attrition Pulv. Co. ji. Van Tuyl, 
 
 2 Hun, 373 ; p. 622 (practice). 
 N. Y. & A. Silver Mining Co., Wild v. 
 N. Y. & Boston R. R. Co. v. Godwin, 12 
 
 Abb. N. S. 21 ; 62 Barb. 85 ; p. 640 
 
 (R. R. Co.) 
 N. Y. Benev. Society of 0pp. Masons, 
 
 People ex rel. Doyle v. 
 Y. & Boston Steam Saw Mill and 
 
 Lumber Co., Terrell v. 
 Y. & Canada R. R. Co. v. Gunnison, 1 
 
 Hun, 496; p. 641 (R. R. Co.) 
 New York Bridge Co., In matter of, 4 
 
 Hun, 635; pp. 641 (R. R. Co.), 690 
 
 (statutes). 
 N. Y. Central R. R. Co., In matter of, 
 
 49 N. Y. 414 ; p. 644 (R. R. Co.) 
 
 , Abbott v. 
 
 , Beckwith v. 
 
 , Bkisigel v. 
 
 , Brown v. 
 
 . burnell v. 
 
 , Coffin v. 
 
 , Cook v. 
 
 , Cragin ». 
 
 , Day v. 
 
 , Dole v. 
 
 , Downs v. 
 
 , Filer v. 
 
 , Green v. 
 
 , Haight i;. 
 
 , Hamilton v. 
 
 , HOLDEN V. 
 
 , Kbssler v. 
 
 , Laning v. 
 
 , Long v. 
 
 , Matteson v. 
 
 , McCall u. 
 
 , McPadden v. 
 
 , , People ex rel. McBridk v. 
 
 , poucher v. 
 
 , Rathbun v. 
 
 , Reedbr v. 
 
 , Richardson v. 
 
 , Sprague v. 
 
 N. Y. Cent. «eHud. R. R. R. Co., Matter 
 of, 4 ffiin, 381 ; p. 641 (R. R. Co.) 
 
 Matter of, 60 N. Y. 116; affirming 2 
 Hun, 482; pp. 642, 648 (R. R. Co.) 
 
 Matter of, 5 Him, 86, 105; pp. 641, 
 642 (R. R. Co.) 
 
 Matter of, 60 N. Y. 112; pp. 35, 40 
 (appeal), 642 (R. R. Co.), 733 (waiver). 
 
 Adwin v. 
 
 Armstrong v. 
 
 Bennett v. 
 
 Calligan v. 
 
 Cleghorn a. 
 
 Collins v. 
 
 Cox v. 
 
 culhane v. 
 
 Davis v. 
 
 Elwood v. 
 
 Fairfax v. 
 
 Fisher v. 
 
 Fkaloff v. 
 
 Gilbert r. 
 
 Green v. 
 
 JIackford v. 
 
 Haddin v. 
 
 Haskin v. 
 
 Hinkley v. 
 
 Hofnagle v. 
 
 Irwin v. 
 
 pleating v. 
 
 Kenyon v. 
 
 King v. 
 
 Livingston v. 
 
 Maginnis v. 
 
 Mann v. 
 
 Matze v. 
 
 McCowN V. 
 
 McGrath v. 
 - V. Met. Gas L. Co., 5 Hun, 201 ; pp. 
 269 (eminent domain), 640 (R. R. Co.) 
 
 -, MiLLlMAN V. 
 
 -, Mitchell v. 
 
 -, Nicholas v. 
 
 -, Ominger v. 
 
 -, O'Neill u. 
 
 -, Peck v. 
 
 -, People ex rel. Armstrong v. 
 
 -, Piper v. 
 
 -, Plank v. 
 
 -„ Prendegast v. 
 
 -, Reynolds v. 
 
TABLE OF CASES. 
 
 851 
 
 , EOBINSON V. 
 
 , Ross V. 
 
 , Sloan v. 
 
 , Spinner v. 
 
 , Sutton v. 
 
 , townsend v. 
 
 , Waffle v. 
 
 , Ward v. 
 
 , Warner v. 
 
 , Watson v. 
 
 , Weber v. 
 
 , Welch v. 
 
 , Wells v. 
 
 , worthington v. 
 
 N. Y. Central Ins. Co., Pratt v. 
 
 N. Y. College of Veterinary Surgery, 
 
 "Van Roust v. 
 N. Y. Elevated Ry. Co., Haight v. 
 N. Y. Guaranty & Indemnity Co. v. 
 
 Flynn, 65 Barb. 365; affd. 55 N. Y. 
 
 653 ; pp. 240 (damages), 658 (sale). 
 
 , Van Nostrand v. 
 
 N. Y. & Harlem Nav. Co., Baldwin u. 
 N. Y. & -Harlem R. R. Co., Matter of, 11 
 
 Ahh. N. S. 90 ; p. 641 (R. R. Co.) 
 
 , Baulec v. 
 
 , Gonzales v. 
 
 V. Haws, 56 N. Y. 176 ; revg. 35 N. Y. 
 
 Supr. 372 ; pp. 385 (injunction), 414 
 
 (interpleader), 707 (title to chattels). 
 
 V. Kip, 46 N. Y. 546 ; p. 640 (R. R. Co.) 
 
 , Kissinger v. 
 
 , Sammon v. 
 
 N. Y., Kingston, etc. R. R. Co., Coylus v. 
 
 N. Y. Laundry Mfg. Co., Strong v. 
 
 N. Y. Life Ins. Co., Sands v. 
 
 'N. Y. Life Ins. & Trust Co., Clark v. 
 
 N. Y. Mail Steamship Co. , Spaids v. 
 
 N. Y. Mutual Gas L. Co. v. Mayor, etc. 
 
 OF N. Y. City, 49 How. 227 ; p. 557 
 
 (pleading). 
 N. Y. MuT. Ins. Co., Wheeler v. 
 N. Y. MuT. L. Ins. Co., Cohen v. 
 K. Y. & N. H. R. R. Co., Dininny v. 
 , Hughes v. 
 
 , MiLNOR V. 
 
 N. Y. & Oswego Mid. R. R. Co., Balch v. 
 
 V. Van Horn, 57 N. Y. 473 ; pp. 189 
 
 (corp.), 278 (estoppel), 680 (statutes). 
 
 , Wade v. 
 
 N. Y. Prot. Episcopal Pub. School, Mat- 
 ter OF, 47 iV. Y. 556 ; affg. 40 How. 
 198. See Digest, vol. iv. 
 
 N. Y. & Staten isL. Perky Co., Mayor, 
 etc. of N. Y. v. 
 
 , People v. 
 
 N". Y., Utica & 0. R. R. Co., Loder v. 
 
 N. Y. & Va. Steamship Co., Gray v. 
 
 N. Y., ETC. Steamship Co., Vinbr v. 
 
 Niagara Co. Savings Bank, Rich v. 
 
 Elevating Co. v. McNamara, 50 N. 
 
 Y. 653 ; p. 114 (Buifalo). 
 
 V. McNamara, 2 Hun, 416 ; pp. 607 
 
 (practice), 655 (replevin). 
 
 Niagara Falls Susp. Bridge Co. v. 
 Bachman, 4 Lans. 523; pp. 15 (ac- 
 tion), 198 (costs), 242 (dedication), 484 
 (municipal corporation). 
 
 Fire Ins. Co., Cone v. 
 
 , Sherman v. 
 
 Savings Bank, Beattie v. 
 
 , Shields v. 
 
 Nicholas v. N. Y. Cent. & H. Riv. R. R 
 Co., 4 Hun, 327 ; p. 117 (carrier). 
 
 Nichols, Matter of, 54 iV. Y. 62; pp.700, 
 703 (taxes). 
 
 , Faucett v. 
 
 , Gallagher «. 
 
 , Ireland v. 
 
 I. Iremonger, 3 Hun, 609; p. 255 (de- 
 fense). 
 
 V. Kingdom Iron Ore Co. of Lake 
 
 Champlain, 56 N. Y. 618; pp. 293, 
 300, 309 (evidence). 
 
 V. Nichols, 5 Hun, 108; p. 208 (covt.) 
 
 , People ex rel. Bristol v. 
 
 , People ex rel. Washington v. 
 
 V. TiFFT, 56 N. Y. 644 ; p. 107 (bonds.) 
 
 NiCKELSON V. Wilson, 60 N. Y. 362 ; revg. 
 1 Hun, 615; p. 179 (contract). 
 
 Nicholson, Spratt v. 
 
 NicoLL V. Fash, 59 Barb. 275; pp. 557, 560 
 (pleading). 
 
 , Whitewater v. 
 
 NiCOLAY, BaLTZEN V. 
 
 NiEss, Brown v. 
 
 NiLES, Matter of, 48 How. 246, 253; p. 76 
 
 (attorney). 
 
 , Cole v. 
 
 , Welz v. 
 
 Nimmons v. Henion, 2 Sweeny, 663 ; p. 192 
 
 (corporation). 
 V. Tappan, -2 Sweeny, 652; pp. 193 
 
 (corporation), 250 (defense), 281 (evid.), 
 
 355 (former adj.), 441 (lim. of action.) 
 NiMS V. Mayor, etc. of Troy, 59 N. Y. 
 
 500; pp.26 (action), 241 (damages), 491 
 
 (negligence). 
 V. Sabine, 44 How. 252; pp. 2 (abate. 
 
 and rev.), 266 (eject.), 335 (exec.) 
 Ninth Av. and Fifteenth St., Matter 
 
 OF, 45 N. Y. 729; p. 373 (highway). 
 
852 
 
 TABLE OF CASES. 
 
 Ninth Natl. Bank, Natl. Pakk Bank v. 
 
 NoE V. Christie, 15 Abb. N. S. 346; 46 How. 
 496; pp. 335, 336 (execution). 
 
 V. Christie, 51 N. F. 270; pp.4 (ac- 
 cord and sat.), 21 (action), 74 (assignt.) 
 
 Nolan, West Side K. R. Co. v. 
 
 NoRRiE, Kahn v. 
 
 NoRRis V. Breed, 12 Abb. N. S. 185 ; p. 196 
 (costs). 
 
 North, Yates v. 
 
 North Am. Merc. Ins. Co., Bkiggs v. 
 
 North Am. Steamship Co. , Dent v. 
 
 Northern Centl. Ry. Co., Case v. 
 
 Northern Light Oil Co., Kelsey v. 
 
 Northern Transpn. Co. of Ohio, Chris- 
 holm V. 
 
 Northern R. R. Co., Wyldb v. 
 
 Northrop, Brown v. 
 
 , Clift v. 
 
 , Darrow v. 
 
 V. Hill, 57 N. Y. 351 ; a%. 61 Barb. 136 ; 
 
 pp. 239 (damgs.), 440 (lim. of action). 
 
 , Hill v. 
 
 , Livermore v. 
 
 V. Railway Passenger Ass. Co., 43 
 
 N. Y. 516; p. 409 (insurance). 
 
 V. Wheeler, 43 Sow. 122; p. 475 
 
 (mortgage). 
 
 North Shore and Staten Island Ferry 
 Co., Matter of, QSBarb. 556 ; pp. 185 
 (corporation), 719 (trust). 
 
 , Crocheron v. 
 
 North Thirteenth St., Matter of, 5 
 Hun, 175 ; p. 483 (municipal corp. ) 
 
 North Western Ins. Co., Wood v. 
 
 Norton, Burroughs v. 
 
 , Clark v. 
 
 , Dexter v. 
 
 V. DoWLiNG, 46 How. 7; p. 638 (prohib.) 
 
 V. Edgar, 65 Barb. 176; pp. 93 (bills 
 
 and notes). 
 
 , Howard v. 
 
 V. Mallory, 1 Hun, 499 ; p. 358 (fraud- 
 ulent conveyance), 715 (trusts). 
 
 , People ex rel. Clark v. 
 
 , People ex rel. Cornell v. 
 
 , Pratt v. 
 
 V. Snyder, 2 Hun, 82 ; pp. 249 (deed), 
 
 887 (injunction), 427 (land, and ten.) 
 
 , yAN AlSTYNE V. 
 
 V. Wallkill Valley R. R. €o., 63 
 
 Barb. 77; reversing 42 How. 228; 61 
 Sa»-6. 476; p. 643 (R. R. Co.) 
 
 Norwood, Jones v. 
 
 — — , McCulloch v. 
 
 V. Resolute Fire Ins. Co., 47 How. 
 
 43; 36 N. Y. Supr. 552; p. 398 (insur.) 
 Nostrand, People ex rel. Henry v. 
 NowLAN V. Trevor, 2 Sweeny, 67 ; pp. 241 
 
 (damages), 430, 433 (landlord and ten.) 
 NoxoN, Far. & Cit. Natl. Bank v. 
 NoYES V. Hartford Ins. Co., 54 N. Y 
 
 668; p. 396 (insurance). 
 u. Phillips, 60 N. Y. 408; pp. 164 
 
 (contract), 232 (damages). 
 NussBAUM, Stern v. 
 Nutter, Dbvoe v. 
 
 0. 
 
 Oakley v. Mayor, etc. or New York, 39 
 N. Y. Supr. 549 ; pp. 282 (evidence) 
 512 (N. Y. city.) 
 
 «. , 4 Hun, 72 ; p. 526 (office, etc.) 
 
 , WOLFORD V. 
 
 O'Beirnb v. Lloyd, 43 N. Y. 248; pp. 3 
 
 (ace. and sat.), 15 (actions). 
 Oberlander v. Rosswog, 4 Hun, 665; p. 
 
 356 (fraud). 
 V. Spie8S,45 N. Y. 175; pp. 47 (appeal), 
 
 355 (fraud). 
 Oberlby v. Dickenson, 4 Hun, 659; p. 102 
 
 (bills and notes). 
 O'Blenis v. Karing,"57 K Y. 649; p. 636 
 
 (principal and surety). 
 O'Brien, Billings v. 
 V. Browning, 49 How. 109 ; p. 210 
 
 (cred. biU), 352 (former adjudication). 
 
 V. Capwell, 59 Barb. 497; pp. 427 
 
 (landlord and tenant), 491 (negligence). 
 
 , Caspar v. 
 
 , Chapman v. 
 
 V. Commercial Fire Ins. Co., 38 N. 
 
 Y. Supr. 4; p. 201 (costs). 
 
 V. , 38 N. Y. Supr. 517; pp. 5 (ac- 
 tions), 396, 399, 400 (insurance), 580 
 (practice). 
 
 V. Glenvillb Woollen Co., 50 N. Y. 
 
 128; p. 673 (sheriff). 
 
 O'Brien, Hollacher v. 
 
 , Jones v. 
 
 , King v. 
 
 V. McCann, 58 N. Y. 373; p. 327 (evid.) 
 
 O'Brien v. Mechanics' and Traders Fire 
 Ins. Co., 45 How. 453; 14 Abb. N. S. 314; 
 36 N. Y. Supr. 110 ; p. 400 (insurance). 
 
TABLE OF OASES. 
 
 853 
 
 «. — r, 44 How. 213 ; 35 N. Y. Supr, 
 
 70 ; p. 619 (practice). 
 „. , 56 N. Y. 52; afEg. 46 How. 429; 
 
 15 Ahh. N. S. 222 ; p. 619 (practice). 
 V. Mekchants' Ins. Co., 48 How. 18 ; 
 
 p. 577 (practice). 
 V. , 48 How. 448; fuUy reported, 38 
 
 N. Y. Supr. 482 ; p. 598 (practice). 
 
 , TiBDMAN V. 
 
 , Willis v. 
 
 , WiSSBB V. 
 
 O'Callaghan, Mahoney v. 
 
 Ocean House Corporation v. Chippu, 5 
 Hun, 419 ; p. 71 (arbitration). 
 
 Ocean Natl. Bank op New York City v. 
 Carll, 55 N. Y. 440 ; p. 291 (evid.) 
 
 , Dunning v. 
 
 V. Fant, 50 N. Y. 474 ; p. 95 (bills and 
 
 notes). 
 
 Ocean Natl. Bank of New York, First 
 Natl. Bank of Lyons v. 
 
 V. Olcott, 46 N. Y. 12; pp. 88 (bankr.), 
 
 251 (defense), 716 (trusts). 
 
 , Walbridge v. 
 
 OcKERMAN V. Cross, 54 N. Y. 29 ; p. 75 (as- 
 signment for benefit). 
 
 O'CoNNER, Hague v. 
 
 , LiLLIS V. 
 
 , People ex rel. Walters vt- 
 
 O'CoNNOR V. MoscHowiTz, 48 How. 451 ; p. 
 
 259 (district court). 
 
 V. Shipman,48 How. 126; p. 479 (mortg.) 
 
 , Steinberg v. 
 
 Oddie v. Natl. City Bank of New York, 
 
 45 N. Y. 735 ; pp. 7, 17 (action). 
 Oddy v. James, 48 N. Y. 685 ; p. 361 (frauds, 
 
 statute of). 
 Odbll v. DeWitt, 53 N. Y. 643 ; p. 150 
 
 (constitutional law). 
 
 , Flajjdees v. 
 
 , Maeacella v. 
 
 , Webb v. 
 
 Odiorne, Nelson v. 
 O'DoNNELL, Cross v. 
 O'DoNNELL, Doughty v. 
 
 , Drake v. 
 
 V. Harmon, 3 Daly, 424 ; pp. 172 (con- 
 tract), 295 (evidence). 
 
 , Houstinb v. 
 
 V. Lindsay, 39 N. Y. Supr. 523 ; pp. 
 
 339, 340 (execution). 
 V. Rosenberg, 14 Abb. j.V. S. 59; 4 
 
 Daiy, 555; pp. 163 (contract), 462 
 
 (mechs. lien.) 
 O' Donovan, Duffy v. 
 O'Dougherty v. Felt, 65 Barb. 220 ; pp. 
 
 470 (mortgage), 727 (vendor and pur- 
 chaser) . 
 
 Oertbl v. Jaooby, 42 How. 218 ; p. 561 
 (pleading). 
 
 V. , 44 How. 179 ; p. 183 (copyright). 
 
 O'Gara v. Clearkin, 58 N. Y. 663 ; p. 345 
 (executors and administrators). 
 
 Ogden, Cosgrovb v. 
 
 V. East Rit. Ins. Co., 50 N. Y. 388; p. 
 
 , 404 (insurance). 
 
 V. Lathrop, 35 N. Y. Supr. 73 ; pp. 56 
 
 (appeal), 567 (pledge). 
 
 Ogdensburg, City of, v. Lyon, 7 Lam. 
 215 ; pp. 421 (jurisdiction), 483 (munici- 
 pal corporation), 550 (pleading). 
 
 Og. & L. C. R. R. Co. v. Vt. and Canada 
 Ry. Co., 4 Hun, 712 ; p. 6 (action). 
 
 V. Pratt, 49 How. 84 ; pp. 643, 645 (R. 
 
 R. Co.) 
 
 O'Haea, Fbkren v. 
 
 , Pope v. 
 
 O'Harb, Matter of, 5 Hun, 287 ; p. 518 
 (N. Y. city). 
 
 O'Kain, Miller v. 
 
 Olcott v. Heermans, 3 Hun, 431 ; pp. 648 
 (receiver), 730 (waiver). 
 
 , Ocean Nat. Bank v. 
 
 O'Leary v. Walter, 10 Abb. N. S. 439 ; 
 affd. 50 iV. Y. 683 ; pp. 41 (appeal), 379 
 (husband and wife), 589 (practice). 
 
 Olmstead, De Ronde v. 
 
 , voorhebs v. 
 
 , Yates v. 
 
 Olney, Hall v. 
 
 Olzen v. Schierenbbrg, 3 Daly, 100 ; 
 26 (action), 675 (ships, etc.) 
 
 Omaha Nat. Bank, Hale v. 
 
 O'Mahoney, Bailey v. 
 
 V. Belmont, 37 N. Y. Supr. 223; 
 
 id. 380 ; pp. 648, 649 (receiver); 
 
 V. , 48 How. 29 ; p. 157 (contempt). 
 
 Omingee v. N. Y. Cent. & Hud. Riy. R. R. 
 Co., 4 Hun, 159; pp. 162 (contract), 497 
 (negligence). 
 
 Onderdonk, Churchill v. 
 
 , Haynes v. 
 
 O'Neil, Levy v. 
 
 , Savage v. 
 
 O'Neill v. James, 43 N. Y. 84; pp. 18 
 (action), 162 (contract), 597 (practice). 
 
 V. N. Y. Cent. & Hud. Riv. R. R. Co., 
 
 60 N. Y. 138; pp. 19 (action), 121 (car- 
 rier), 565 (pleading). 
 
 Oneonta, Town of, Gould v. 
 
 Onondaga Fine Salt Mf'g. Co., Clan 
 
 OEY V. 
 
 pp. 
 
 afEd. 
 
854 
 
 TABLE OF CASES. 
 
 , Lynch v. 
 
 Ontario Bank v. Hennessey, 48 N. Y. 
 
 545 ; pp. 533, 536 (partnership). 
 V. N. J. Steamboat Co., .59 N. Y. 510; 
 
 pp. 123 (carrier), 309 (evidence). 
 Oppenheim, Johnson v. 
 Oppenheimer v. Walker, 3 Hun, 30 ; p. 
 
 480 (mortgage). 
 Orange & Alex. R. R. Co., Kiersted v. 
 Orchard v. Binninger, 51 N. Y. 652 ; p. 
 
 633 (principal and agent). 
 O'Reilly v. Guardian Life Ins. Co., 60 
 
 N. Y. 169 ; revg. 1 3un, 460 ; pp. 405, 
 
 408 (insurance). 
 Organ v. Stewart, 60 N. Y. 413 ; revg. I 
 
 Hun, 411 ; pp. 6 (action), 179 (contract), 
 
 277 (estoppel), 362 (frauds, statute of). 
 Orgler, Holbrook v. 
 Orient Mutual Ins. Co., Frinkb v. 
 O'RiLEY V. McChesney, 49 N. Y. 672 ; pp. 
 
 593 (practice), 736 (watercourse). 
 Ormsby v. People, 53 N. Y. 472 ; p. 222 
 
 (criminal law). 
 u. Vermont Copper Mining Co., 56 
 
 N. Y. 623 ; revg. 65 Barb. 360 ; pp. 185 
 
 (corp.), 238 (damages), 253 (defense). 
 O'RouRKE V. People, 3 Hun, 225 ; pp. 334 
 
 (excise), 685, 687 (statutes). 
 Ore v. Gilmore, 7 Lans. 345; pp. 210 (cred. 
 
 biU), 314 (evidence). 
 V. Mayor, etc. of N. York, 64 Barb. 
 
 106 ; pp. 15 (action), 240 (damages), 310 
 
 (evidence). 
 Orser v. Glenville Woolen Co., 11 Abb. 
 
 N. 5. 85 ; 60 Barb. 371 ; p. 2 (abate- 
 
 Tnent and rev.) 
 Ortner v. People, 4 Hun, 323 ; p. 216 
 
 (criminal law). 
 Orton, Wade v. 
 Orvis, Stewart v. 
 OsBORN V. Gantz, 38 
 
 afEd. mN. Y. 540; 
 
 (practice), 664 (sale). 
 , Kittell v. 
 
 , MORSS V. 
 
 V. Nelson, 59 Barb. 375 ; pp. 25 (ac- 
 tion), 32 (amendment), 65 (appeal). 
 
 V. RoBBiNS, 7 Lans. 44 ; p. 314 (evid.) 
 
 , City of Rochester v. 
 
 , Smith v. 
 
 , Winchester v. 
 
 OsBOilNB, TURNBULL V. 
 
 N. Y- Supr. 1 48 ; 
 pp. 587, 589, 594 
 
 OsBREY V. Reimbr, 51 N. Y. 630 ; modi 49 
 Barb. 265 ; pp. 163 (contract), 534 (part- 
 nership). 
 
 OsBY V. CoNANT, 5 Lans. 310; p. 27 (act'n.) 
 
 Osgood v. Maguirb, 61 Barb. 54; p. 250 
 (defense). 
 
 , Moody v. 
 
 V. Strauss, 55 N. Y. 672; affirming 65 
 
 Barb. 383 ; pp. 95 (bills and notes), 440 
 (lim. of actions). 
 
 V. Toole, 1 Hun, 167; afCd. 60 N. Y. 
 
 475; pp. 45 (appeal), 304 (evidence), 394 
 (insurance). 
 
 OsLEY, Mutual Dime Savings Inst'n. v. 
 
 OSMER, VaNDEWALKER V. 
 OSTRANDER, ShULL V. 
 
 Ostrom, Claflin v. 
 
 O'SuLLivAN V. Roberts, 39 N. Y. Supr. 360; 
 
 p. 504 (new trial). 
 Oswego, City, of,^ People ex rel. Oswego 
 
 Canal Co. v. 
 Oswego and Syracuse R. R. Co., Price u. 
 Otis, Helms v. 
 Otis Brothers & Co. v. VoorhisJ 49 How. 
 
 273; p. 462 (mechs. lien). 
 O'TooLEi!. Garvin, 1 Hun, 92, 313; pp. 
 
 556, 565 (pleading). 
 Ott, Matter op, 13 Abb. iV. S. 293 ; p. 451 ■ 
 
 (marine court). 
 Otter, Van Pelt v. 
 Outhouse, Adams v. 
 OvENSHiEE, People ex rel. Sundbrlin v. 
 OvERSHiRE, Sundbrlin v. 
 OvERACRE u., Garrett, 5 Lans. 156; p. 635 
 
 (prin. and sur. ) 
 OvERiNGu. PooTE, 43 N. F. 290; pp. 138 
 
 (cloud on title), 700 (taxes). 
 OwEGO, Village of, Pumpelly v. 
 Owens, Matter of, 47 How. 150 ; p. 383 
 
 (idiots, etc.) 
 Owen, Dana v. 
 V. Farmers' Joint Stock Ins. Co., 10 
 
 Abb. N. S. 166, note; 57 Barb. 518; p. 
 
 733 (waiver). 
 V. Griffin, 2 Hun, 670; p. 379 (husb. 
 
 and wife). 
 
 , HOAG V. 
 
 , Jones v. 
 
 , Swords v. 
 
 Owens v. Holland Purchase Ins. Co., 56 
 
 N. Y. 565 ; p. 402 (insurance). 
 OxLEY V. King, 1 Hun, 115 ; p. 141 (consig.) 
 
TABLE OF CASES. 
 
 855 
 
 P. 
 
 Pacific Bank, Aybault v. 
 
 Pacific Mail Steamship Co., Bach v. 
 
 , commissioneks of p1lot8 v. 
 
 V. Great Western Ins. Co., 65 Barb. 
 
 334; p. 411 (insurance). 
 
 ' , JOSLYN V. 
 
 Pacific Mtjt. Ins. Co., Briosow 
 
 , Young v. 
 
 Paddon v. Taylor, 10 Abb. N. S. 370; 44 
 
 N. Y. 371 ; pp. 104 {bona fide purchr.), 
 
 659 (sale). 
 Page, Black Riv. Bank v, 
 
 , Campbell v. 
 
 , May v. 
 
 w. McDonnell, 46 How. 52; afEd. 46 
 
 How. 299 ; 55 N^Y. 299 ; p. 729 (vendor 
 
 and purchr.) 
 
 , Raynor v. 
 
 Paige v. In Matter op, 62 Barb. 476 ; p. 740 
 
 (wiU). 
 Paine v. McCarthy, 1 Hun, 78 ; p. 605 
 
 (practice). 
 
 , McCleave v. 
 
 Palache, Aston v. 
 
 Palen v. Bushnell, 1 Hun, 319 ; p. 360 
 
 (frauds, stat. of). 
 V. Johnson, 50 N. Y. 49 ; p. 725 
 
 (usury). 
 Palmer v. Bagg, 64 Barb. 641 ; affirmed 56 
 
 N. Y. 523; p. 636 (prin. and surety.) 
 
 , Cahill v. 
 
 V. DeWitt, 47 N. Y. 532; affirming 40 
 
 How. 293; 2 Sweeny, 530; pp. 183 (copy- 
 right), 419 (jurisdiction). 
 V. , 42 How. 466; S. C, before, 7 
 
 Rob. 530; 36 How. 222; 40 How. 293 ; 2 
 
 Sweeny 530 ; p. 49 (appeal). 
 V. Foley, 44 How. 308; affirmed 45 
 
 How. 110; 36 N. Y. Supr. 14; pp. 386 
 
 (inj.), 508 (N. Y. city), 638 ((?«o warr.) 
 
 , Hawkins v. 
 
 V. Holland, 51 N. Y. 416; pp. 119 
 
 (carrier), 297 (e-nd.),594 (pract.) 
 V. HussEY, 65 Barb. 278; affirmed 59 
 
 N. Y. 647; p. 613 (practice). 
 
 V. Kelly, 56 N. Y. 637; p. 595 (pract.) 
 
 V. Lawrence, 6 Lans. 282 ; pp. 71 
 
 (assessors), 527 (office, &c.) 
 
 , People ex rel. Kingsland v. 
 
 , Remington v. 
 
 , Vermilyea, v. 
 
 Palmbtier, Wilcox v. 
 Panama R. R. Co., Harris v. 
 
 Paradise, Schunemann v. 
 
 Pardee v. Fish, 60 N. Y. 265; pp. 85 
 (banks), 128 (certificate of dep.) 
 
 ;;. Leitch, 6 Lans. 303 ; pp. 337 (exe- 
 cution), 619, 624, 625 (practice). 
 
 , Marvin v. 
 
 Park AN v. Moran, 4 Hun, 717; pp. 289 
 (evidence), 755 (witness). 
 
 Parisen v. Parisen, 46 How. 385; p. 633 
 (partition). 
 
 Parish, Sherman v. 
 
 Park, Bailey v. 
 
 , Reynolds v. 
 
 Parker v. Arctic Fire Ins. Co. op N. T., 
 59 N.Y.I; p. 399 (insurance). 
 
 , Chamberlain v. 
 
 , Crouch v. 
 
 , Dung v. 
 
 V. Erie Railway Co., 5 Hun, 57; p. 
 
 457 (master and servant.) 
 
 , Field v. 
 
 , Finch v. 
 
 V. Lanby, 58 N. Y. 469 ; p. 598 (pract.) 
 
 ,v. Parker, 65 Barb. 205; pp. 413 
 
 (interest), 538 (partnership). 
 
 , Platt v. 
 
 , Sheldon B. 
 
 V. Wabth, 5 Hun, 417; p. 51 (appeal.) 
 
 , Watson ». 
 
 , Wetmore v. 
 
 , zogbaum v. 
 
 Parks v. Comstock, 59 Barb. 16, 37 ; pp. 73 
 (assignment), 682 (stamps). 
 
 V. Morris, Ax and Tool Co., 54 N. Y. 
 
 586; affirming 41 How. 18 ; S. C, 4 Lans. 
 103; 60 Barb. 140; pp. 235 (damages), 
 665 (sale). 
 
 , Porter v. 
 
 , Everett v. 
 
 Parmelee v. Hoffman Fire Ins. Co., 54 
 N. Y. 193; p. 277 (estoppel). 
 
 V. Thompson, 45 N. Y. 58 ; p. 141 (con- 
 sideration). 
 
 Parmly, Porter v. 
 
 Parrott v. Knickerbocker, etc. Ice Co., 
 2 Sweeny, 93 ; reversed 46 N. Y. 361 ; 
 pp. 240 (damages), 489, 496 (negli- 
 gence). 
 
 Parsee Merchants' Case, 11 Abb. N. S. 
 209; S. C, sub nom, Bomanjee By-- 
 RAMJBB CoLAH, InMatter OF, 3 Daly, 
 529; p. 382 (idiots and lunatics). 
 Parshall v. Eggabt, 54 iV. Y. 18; revg. 52 
 
856 
 
 TABLE OF CASES. 
 
 Barb. 367; pp.132 (chattel mortgage), 
 
 567 (pledge). 
 
 , Paul v. 
 
 Parsons, Ballou v. 
 
 V. Brown, 5 Hun, 112; p. 505 (new 
 
 trial). 
 
 , DONNEL V. 
 
 , Emehson v. 
 
 V. Gaeneb, 5 Hun, 112; p. 247 (deed). 
 
 , Jenks v. 
 
 V. LotiCKS, 48 N. Y. 17 ; aflSrming 4 
 
 Roh. 216. See Digest, vol. i. 
 
 V. Sutton, 39 N. Y. Supr. 544; pp. 62 
 
 (appeal), 328 (evidence). 
 
 V. TiLDEN, 59 N.Y. 639 ; p. 167 (cont.) 
 
 Partridge, Briggs v, 
 V. Eaton, 3 Hun, 533; pp. 149 (consti- 
 tutional law), 656 (ripa. owner). 
 
 , Mason v. 
 
 . V. Stokes, 44 How. 381 ; p. 859 (frauds, 
 
 stat. of). 
 Passaic Manufacturing Co. v. Hoffman, 
 
 3 Daly, 495; pp. 362, 363, 364 (frauds, 
 
 stat. of), 668 (sale). 
 Patapsco, Steamer, 43 How. 301; pp. 291 
 
 (evidence), 674 (ships, etc.) 
 Patchen, Wintermute v. 
 Patrick v. Excelsior Life Ins. Co., 4 
 
 Hun, 263; p. 405 (insurance). 
 
 , PlERPONT V. 
 
 Patten v. Still, 50 N. Y. 591; reversing 
 34 N. Y. Supr. 346 ; pp. 48, 49 (appeal). 
 
 Patterson v. Baker, 3 Hun, 398; p. 551 
 (pleading). 
 
 , Birdsall v. 
 
 , Dake v. 
 
 V. Gillies, 64 Barb. 563 ; p. 134 (chat- 
 tel mortgage). 
 
 , Havens v. 
 
 V. McCuNN, 46 How. 182; p. 522 (part.) 
 
 V. Patterson, 47 How. 242 ; affirmed 
 
 1 Hun, 328; modified 59 iV. Y. 574; pp. 
 846 (exrs. and adm.), 670 (set-off). 
 
 V. Stbttanbr, 39 iV. Y. Supr. 413; p. 
 
 601 (practice). 
 
 Pattison, Merrill v. 
 
 V. Syracuse Natl. Bank, 1 Hun, 606; 
 
 p. 589 (practice). 
 
 Patton, Hale v. 
 
 Paul v. Munger, 47 N.Y. 469; p. 37 (appl.) 
 
 V. Parshall, 14 Abb. N. S. 138 ; pp. 
 
 51 (appeal), 578 (practice). 
 
 Payne v. Burnham, 2 Hun, 143 ; p. 278 
 (estoppel). 
 
 V. King's Co. Manufg. Co., 2 Hun, 
 
 673; p. 581 (practice). 
 
 V. Sheldon, 43 How. 1; reversed, 63 
 
 Barb. 169; p. 209 (creditor's bill). 
 
 , Thomas v. 
 
 V. Tracey, 42 How. 95 ; p. 56 (appeal). 
 
 , WOODWORTH V. 
 
 Pbabody v. Speyers, 56 N. Y. 230 ; pp. 292 
 (evidence), 362, 364 (frauds, stat. of). 
 
 Peacock, Westfall v. 
 
 Pearce, Stbuthers v. 
 
 Pearsall, Bullard v. 
 
 , People v. 
 
 Pease, Anchor Life Ins. Co. v. 
 
 , Barlow & Reed v. 
 
 V. Smith, 5 Lans. 519; p. 300 (evid.) 
 
 V. Walsh, 89 -N. Y. Supr. 514; 49 
 
 How. 269; pp. 11 (action), 178 (cont.) 
 
 Pechnee v. Phcenix Ins. Co., 6 Lans. 411; 
 pp. 322 (evidence), 401 (insurance), 654 
 (removal to U. S. court), 733 (waiver). 
 
 Peck, Faris v. 
 
 ', Monroe v. 
 
 V. N. Y. Cent. & Hud. R. R. R. Co., 4 
 
 Hun, 236; pp. 61 (appl.), 645 (R. R. Co.) 
 
 , People ex rel. Hoag v. 
 
 , Randolph v. 
 
 V. Root, 5 Hun, 547; pp. 564, 566 
 
 (pleading). 
 
 v. ScHENCK, 2 Hun, 673; p. 438 (limit. 
 
 of actions). 
 
 V. Shbewood, 56 N. Y. 615; pp. 345 
 
 (exrs. and adm.), 697, 698 (surrogate), 
 705 (ten. for life.) 
 
 Peck v. Winnb, 51 N. Y. 641; p. 308 (evid.) 
 
 Pell, Rider, v. 
 
 Pelo v. Clukey, 36 How. 179 ; p. 616 (pract.) 
 
 Pblton v. Bulkley, 34 N. Y. Supr. 283 ; 
 pp. 167 (contract). 
 
 V. Rensselaer & S. R. R. Co., 54 N. 
 
 Y. 214; p. 122 (carrier). 
 
 Pkmberton, Hawkins v. 
 
 Pendergast, Whitin v. 
 
 Pendleton v. Hughes, 65 Barb. 186; pp. 
 209 (cred. bill), 243. (deed), 357 (fraud- 
 ulent conveyance), 599 (practice). 
 
 V. Lord, 34 N. Y. Supr. 301 ; p. 60 
 
 (appeal). 
 
 Pendeil v. Second Av. R. R. Co., 43 How. 
 399; 34 iV.F. Supr. 481; p. 591 (pract.) 
 
 Penfield v. Clark, 62 Barb. 584 ; p. 729 
 (vendor and purchaser). 
 
 V. Dunbar, 64 Barb. 239,' pp. 103 {bona 
 
 fide purchaser), 280 (estoppel), 660 (sale.) 
 
 w. James, 56 N. Y. 659 ; p. 198 (costs). 
 
 V. , 12 Abb. N. S. 247 ; p. 479' 
 
 (mortgage). 
 
 u. , 4 Hun, 69; p. 204 (costs). 
 
TABLE OF CASES. 
 
 857 
 
 Pbnn v. Buffalo and Erie K. R. Co. ; 49 
 N. Y. 204; reversing 3 Lam. 443; p. 646 
 (R. R. companies). 
 
 Pennock, Hammond v. 
 
 , People v. 
 
 Penn. Central R. R. Co., McCormick v. 
 
 Pennsylvania Coal Co., Pbest., etc. D. 
 AND H. Canal Co. v. 
 
 Penn. R. R. Co., Rawson v. 
 
 Penn Yan, Village of, Haskell v. 
 
 People, Adams v. 
 
 V. Albany City, 4 Hun, 675 ; pp. 31 
 
 (Albany), 483 (municipal corporation.) 
 
 V. Albany & Susq. R. R. Co., 57 N. Y. 
 
 161 ; affirming in part 5 Lans. 25 ; pp. 
 22 (action), 195, 202, 203 (costs), 547 
 (pleading), 578 (pract.), 638 (quo. war.) 
 
 V. Allen, 43 iV. y. 28; pp. 217, 218, 
 
 227 (criminal law). 
 
 V. Batting, 49 How. 392; p. 213 (crim- 
 inal law). 
 
 V. Bennett, 49 iV. Y. 137; pp. 219, 
 
 220, 221, 227, 229 (criminal law). 
 
 , BlELSCHOPSKY V. 
 
 , BOYCE V. 
 
 , Brooks v. 
 
 V. Brunell, 48 How. 435 ; p. 211 
 
 (criminal law) . 
 
 , Burke v. 
 
 , Burns v. 
 
 V. Burr, 41 How. 293 ; pp. 81 (bail- 
 ment), 211, 228 (criminal law). 
 
 V. Canal Board of New York, 55 
 
 N. Y. 390 ; p. 388 (injunction). 
 
 V. ChaXmers, 1 Hun, 683; affirmed 60 
 
 N. Y. 154; p. 75 (assign't for benefit). ^ 
 
 ». Christopher, 4 Hun, 805; p. 214 
 
 (criminal law) . 
 
 V. Clark, 45 How. 12; pp. 613, 616 
 
 (practice). 
 
 V. , 2 Hun, 5201 p. 230 (crim. law.) 
 
 V. Cole, 43 N. Y. 508 ; pp. 212 (crim- 
 inal law), 585 (practice). 
 
 , Coleman v. 
 
 , Collins, v. 
 
 V. COMAN, 49 How. 91 ; p. 80 (bail). 
 
 , Connors v. 
 
 , copperman v. 
 
 V. CoRBiN, 56 N. Y. 363; p. 222 (crim- 
 inal law). 
 
 , CUNNINtl^HAM V. 
 
 , Daley v. 
 
 U.Davis, 56 N. Y. 95; pp. 215, 217, 
 
 225 (criminal law). 
 V. Davis, 61 Barb. 456 ; pp. 677 (spec. 
 
 sessions), 682, 684 (statute) . 
 
 -, Delamater v. 
 -, Dent v. 
 -, Dillon v. 
 
 - V. Dispensary and Hospital Soc'y. 
 op the Women's Institute of N. Y. 
 City, 7 Lans. 304 ; p. 193 (corporation). 
 
 - V. DoHRiNG, 59 N. Y. 374; pp. 210, 
 214 (criminal law). 
 
 -, Donohue v. 
 -, Eggler v. 
 -, Evans v. 
 -, Evers v. 
 
 - V. Fancher, 50 N. Y. 288 ; p. 154 
 (constitutional law). 
 
 - V. Fields, 58 N. Y. 491 ; pp. 26, 27 
 (action). 
 
 - V. Flanagan, 5 Hun, 187; pp. 258 (dis. 
 courts), 689 (statutes). • 
 
 -, V. 
 
 - V. Florence, 59 N. Y. 83; pp. 80 (bail), 
 143, 151 (const, law), 684 (statutes). 
 
 - V. FOLMSBEE, 60 Barb. 480 ; pp. 369 
 {habeas corpus). 
 
 -, FOOTE V. 
 
 -, Foster v. 
 
 -, Fralich v. 
 
 -V. Gaffney, 14 .466. iV. S. 36; p. 228 
 
 (criminal law). 
 -, V. 
 
 - V. Gates, 56 JV. Y. 387; p. 334 (excise). 
 
 - V. Genet, 59 N. Y. 80; pp. 227 (crim. 
 law), 445 (mandamus). 
 
 -, Geston v. 
 -, Gibson v. 
 -, Gill v. 
 -, Godfrey v. 
 -, Graham v. 
 
 -, GUSTON V. 
 
 -, Haggerty l». 
 -, Harris v. 
 -, Harrison v. 
 
 - V. Hatch, 60 Barb. 228; p. 140 (com- 
 mon schools). 
 
 -, Height v. 
 
 -, HiGGINS V. 
 
 -, HiLDBBRAND V. 
 
 - V. Horton, 5 Hun, 516; pp. 391 (inj.), 
 524 (nuisance). 
 
 -, Howell v. 
 
 -, HUBER V. 
 
 — , HUFSTATER V. 
 
 - V. Ingersoll, 14 Abb. N. S. 23 ; p. 80 
 
 (bail). 
 
 _ t, , 58 N. Y.l; p. 27 (action). 
 
 — , Johnson v. 
 
 - V. Jones, 5 Lans. 340; p. 226 (crim. 1.) 
 
858 
 
 TABLE OF CASES. 
 
 People v. Kbllbt. 
 
 ., Kbkrains v. 
 
 , King v. 
 
 , Knickerbocker v. * 
 
 , Larkin v. 
 
 V. Learned, 5 Hun, 626; pp. 145, 151 
 
 (constitutional law. 
 
 , Lbnahan v. 
 
 0. Lewis, 41 How. 508 ; S. 0., 6 AVb. 
 
 N. S. 190. See Digest, vol. iv. 
 
 , Lindsay v. 
 
 , Mahoney v. 
 
 V. Malloky, 46 How. 281; p. 508 (N. 
 
 Y. city). 
 
 V. , 2 Hun, 381 ; p. 387 (injunction). 
 
 , Marx v. 
 
 , MaURER II. 
 
 V. Mayor, etc. of City of Albany, 
 
 5 Lana. 524; p. 232 (damages). 
 
 u. McCarthy, 45 How. 97 ; pp. 151 
 
 (const, law), 211, 229 (criminal law). 
 
 , McCord v. 
 
 V. McCoy, 45 How. 216 ; p. 226 (crimi- 
 nal law). 
 
 V. McDonald, 43 N. Y. 61; p. 212 
 
 (criminal law.)- 
 
 , McGary v. 
 
 , McGuire v. 
 
 , McNbvins v. 
 
 V. Mbach, 14 Abh. N. S. 429 ; pp. 374 
 
 (highway), 389 (injunction), 488 (navi- 
 gable streams). 
 
 , Messner v. 
 
 V Miller, 56 N. Y. 448; p. 693 (Super- 
 intendent of Insurance)'. 
 
 , Miller v. 
 
 , mongeon v. 
 
 V. MoNTGOMBKY, 13 AVb. N. S. 207; 
 
 pp. 211, 218, 220, 222, 224, 227, 228, 229, 
 (criminal law) . 
 
 , Mo ORB V. 
 
 V. Morgan, 58 N. Y. 679 ; pp. 143, 155 
 
 (constitutional law). 
 , Murphy v. 
 
 V. Myers, 2 Hun, 6 ; pp. 210, 221 
 
 (criminal law), 528 (oyer and termin). 
 
 , Newman v. 
 
 V. New York and Staten Island 
 
 Ferry Co., 49 How. 511; p. 513 (N. Y. 
 city). 
 
 V. Pearsall, 46 How. 121 ; pp. 214, 222, 
 
 224 (criminal law). 
 
 , Ormsby v. 
 
 , o'rourkb v. 
 
 , Ortnbr v. 
 
 V. Pennock, 60 N. Y. 421 ; pp. 635 
 
 p. 217 (orimi- 
 167; pp. 217, 
 
 (principal and surety), 695 (super- 
 visor) . 
 
 - V. Pettit, 3 Hun, 416 ; p. 25a(disorder- 
 ly conduct). 
 
 -V. Phelps, 49 How. 437, 451, 470; pp. 
 213, 216 (criminal law). 
 
 - V. , 49 How. 462; p. 212 (crim.law). 
 
 - V. , 49 How. 479; p. 227 (crim. law). 
 
 -, Powell v. 
 
 - V. Pres't., etc. of New York Gas 
 Light Co., 6 Lans. 467 ; GiBarb. 55 ; p. 
 524 (nuisance). 
 
 - V. QuiGG, 59 N. Y. 83 ; pp. 80 (bail), 
 143, 151 (constl. law), 684 (statute). 
 
 -, QuiGG V. 
 
 - V. Rbagle, 60 Barb. 527 ; pp. 217, 228, 
 280 (criminal law), 528 (oyer and ter.) 
 
 -, Remsen v. 
 -, Reynolds v. 
 
 - V. Rogers, 13 Abb. N. S. 370 ; pp. 218, 
 220, 224, 225, 229 (criminal law). 
 
 -, ROSEKRANS V. 
 -, ROSENZWBIG V. 
 -, RULOPF V. 
 
 - V. Sammis, 3 Hun, 560 ; 
 nallaw). 
 
 - V. Satteelbb, 5 Hun, 
 224, 226 (criminal law). 
 
 - V. Schoonmakee, 63 Barb. 44; afEd. 
 50 N. Y. 499 ; pp. 37 (appeal), 655 (resi- 
 dence), 684 (statutes). 
 
 -, Schwab v. 
 -, Scott v. 
 
 - V. Sharkey, 1 Hun, 300 ; p. 201 (crimi- 
 nal law). 
 
 -, Shaw v. 
 -, Shufflin v. 
 -, Slattbrly v. 
 -, Smith v. 
 -, Starin v. 
 
 - V. Stephens, 52 N. Y. 306 ; pp. 59 (ap- 
 peal), 76 (attorney general). 
 
 -, Stover v. 
 -, Stokes v. 
 
 - V. Sups, op Chautauqua, 43 JS!'. Y. 10; 
 pp. 142 (constl. law), 682 (statutes). 
 
 - V. Sups, of Columbia Co., 43 N. Y. 
 130 ; pp. 108 (6ounties) 687 (statute). 
 
 -, Temple v. ' 
 -, Templbton v. 
 
 - V. TiGHE, 5 Hun, 25 ; p. 334 (excise). 
 
 - V. Tinsdale, 10 Abb. iV. S. 374 ; pp. 
 211,220 (criminal law). 
 
 - V. Tobacco Manufacturing Co., 42 
 How. 162; p. 76 (attorney-general). 
 
 - V. Town Auditors op Castleton, 44 
 
TABLE OF CASES. 
 
 859 
 
 How. 238; 13 Abb. N. S. 431 ; p. 214 
 (criminal law). 
 
 People v. Tweed, 13 Abh. N. S. 25; pp. 
 21, 22 (action), 76 (atty. gen.), 457 
 (maxims), 719 (trusts). 
 
 V. Tweed, 13 Ahh. N. S. 148 ; pp. 151 
 
 (constitutional law), 615 (practice) . 
 
 V. , 18 Ahh. N. S. 419 ; pp. 525 
 
 (office, etc.), 564 (pleading), 573 (prao.) 
 
 V. , 5 Hun, 353, 382 ; pp. 152 (con- 
 stitutional law), 571, 575, 577, 613, 614, 
 615, 618 (practice). 
 
 ■ , Valerie v. 
 
 V. Wakner, 45 How. 97 ; pp. 151 (con- 
 stitutional law), 2ir, 229 (crim. law). 
 
 , Watson v. 
 
 , Weed v. 
 
 V. Welch, 47 How. 420; p. 649 (recog.) 
 
 , Wenzlbr v. 
 
 , Weyman v. 
 
 , Wiggins v. 
 
 , WlLKE V. 
 
 V. WiLLIAMSBURGH T'PIKE AND B. Co., 
 
 47 N. Y. 586; p. 48 (appeal), 19.3 (coi-p.) 
 
 , Wood v. 
 
 , Woodford v. 
 
 , Woods v. 
 
 People ex rel. Adams v. Sigel, 46 How. 151 ; 
 
 pp. 448 (mandamus), 474 (mortgage), 
 
 719 (trusts). 
 Addison & E. Plk. Road Uo. v. Free- 
 man, 52 N. Y. 656 ; p. 86 (appeal). 
 Agnew v. Green, 65 Barb. 505 ; p. 509 
 
 (N. T. city). 
 Aiken v. Morgan, 65 Barb. 478 ; pp. 
 
 130, 131 (certior), 142 (constitutional 
 
 law), 709, 710 (towns). 
 V. -, 55 N. Y. 587 ; pp. 131 {certior.), 
 
 709 (towns). 
 Aldhousb v. Goelet, 14 A hh. N. S. 
 
 130; 64 Barh. 476; p. 430 (landlord and 
 
 tenant). 
 Alexander v. Alexander, 3 Hun, 
 
 211 ; p. 157 (contempt). 
 Allen v. Knowles, 47 N. Y. 415 ; pp. 
 
 132 {certior.}, 710 (towns). 
 People ex rel. Am. Linen Thread Co. v. 
 
 Assessors of Mechanics ville, 6 
 
 Lans. 105 ; pp. 699, 701 (taxes). 
 Am . Linen Thread Go. v. Rowland, 
 
 61 Barh. 273 ; p. 701 (taxes). 
 . Andrews v. Supervisors of Erie 
 
 County, 5 Hun, 120; p. 526 (office, etc.) 
 Angel v. Hatch, 65 Barb. 430 ; p. 710 
 
 (towns). 
 Armstrong v. IS. Y. Central and 
 
 Hud. Riv. R. R. Co. , 2 Hun, 482 ; affg. 
 
 60 N. Y. 116 ; p. 643 (R, R. Co.) 
 People ex rel. Babbit v. Bqard of Comm'rs. 
 
 of Taxes, etc., 41 How. 459; p. 698 
 
 (taxes). 
 Baboock 11. Murray, 5 Hun, 42; p. 526 
 
 (office, etc.) 
 Bagley v. Green, 1 Hun, 1 ; pp. 450 
 
 (mandamus), 521 (N. Y. city). 
 Baker v. Board of Apportionment, 
 
 1 Hun, 123; p. 64 (appeal). 
 Bank of Montreal v. Board of 
 
 Comm'rs. of Taxes, 59 N. Y. 40 ; p. 
 
 699 (taxes). 
 Barbour v. Gates, 43 iV. Y. 40 ; pp. 
 
 69 (appr.), 383 (inf.) 682 (stamps.) 
 Barlow v. Curtis, 50 N. Y. 321 ; p. 
 
 145 (constitutional law). 
 Beardslbyu. Van Valkenbukgh, 63 
 
 Barb. 105 ; p. 709 (towns). 
 Seller v. Wright, 3 Hun, 306 ; p. 
 
 334 (excise). 
 Blake v. Holdridge, 4 Lans. 511 ; pp. 
 
 157 (contempt), 421 (juror). 
 Blossom v. Nelson, 10 Ahh. N. S. 200; 
 
 60 Barb. 159 ; revd. 11 Abh. N. S. 106; 
 
 but afid. 46 N. Y. 477 ; pp. 184 (cor- 
 poration), 448 (mandamus). 
 Bolton v. Albertson, 55 N. Y. 50; 
 
 pp. 142, 145, 154 (constitutional law). 
 Brindenbbcker v. Prescott, 3 Hun, 
 
 419; p. 475 (mortgage). 
 Bristol v. Nichols, 51 N. Y. 470; p. 
 
 372 (highway). 
 Broadway and Seventh Av. R. R. 
 
 Co. V. Commissioners of Taxes, etc. 
 
 IN THE City of New York, 46 How. 
 
 227 ; affirmed 60 N. Y. 638; pp. 130 
 
 ^certiorari), 669 (taxes). 
 Brooklyn Park Commissioners v. 
 
 Brooklyn City, 3 Hun, 596; affirmed 
 
 60 N. Y. 642; pp. 285 (evidence), 447 
 
 (mandamus). 
 Brown v. Board op Apportionment 
 
 AND Audit, 52 N. Y. 224; pp. 446 
 
 (mandamus), 512 (N. Y. city). 
 
 V. Green, 56 N. Y. 476; p. 446 (mand.) 
 
 Buffalo and St. Line R. R. Co. v. 
 
 Barker, 48 N. Y. 70 ; p. 700 (taxes). 
 V. Frederick, 48 N. Y. 70 ; p. 700 
 
 (taxes). 
 Butts v. Com. Council of Rochester, 
 
 5 Lans. 142; pp. 131 (certiorari), 487 
 
 (mun. corporation), 657 (Rochester). 
 Byrnes v. Green, 64 Barh. 162; pp. 
 
 445, 448 {mandamus) 512 (N. Y. city). 
 
860 
 
 TABLE OF CASES. 
 
 People ex rel. CHtJKCH v. Hopkins, 55 N. 
 Y. 74; p. 526 (office, etc.) 
 
 Chubchman v. Board or Trustees 
 
 OF N. T. State Inst, for the Blind , 
 58 N. Y. 659 ; p. 526 (office, etc.) 
 
 City of Albany v. Clute, 42 How. 
 
 157; p. 637 (prohibit.) 
 
 City of Rochester v. Briggs, 50 
 
 N. Y. 553 ; p. 142 (constitutional law). 
 
 Clapp «. Department of Police, 5 
 
 Hun, 457; p. 508 (N. Y. city). 
 
 V. FiSK, 1 Hun, 464 ; pp. 156 (contempt), 
 
 449 {^mandamus). 
 
 Clark v. Norton, 59 Barb. 169 ; 5 
 
 Lans. 7; pp. 142 (constitutional law) , 
 205 (county judge). 
 
 Cooke v. Commissioners of High- 
 ways, 57 N. Y. 549; pp. 372, 373 (h'wys.) 
 
 CoMMissKS. OF Public Charities v 
 
 Sanders, 3 Hun, 16 ; p. 131 [certiorari). 
 
 Cornell u. Norton, 12 Abh. N. S. 47; 
 
 pp. 446, 449 {mandamus). 
 
 CoRRiGAN V. Young Men's F. M. 
 
 Bbnev. Socy., 65 Barb. 357; pp. 132 
 (charitable association), 693 (Sunday). 
 
 CoRWiN V. Walter, 2 Hun, 385; pp. 
 
 131 ; {certiorari), 708 (towns). 
 
 Creegan v. Dutchbr, 2 Hun, 156 ; p. 
 
 146 (constitutional law). 
 
 ^ — CuYLER V. Trustees of Palmyra, 3 
 Hun, 549 ; p. 129 {certiorari). 
 
 CuKRY V. Green, 64 Barb. 493 ; pp. 
 
 448 {mandamus), 507, 512 (N. Y. city). 
 
 Curtis v. Common Council of Koch- 
 ester, 54 N. Y. 507 ; p. 657 (Roch.) 
 
 V. — — OP Utica, 45 How. 289; 65 
 
 Barb.- 9; pp.132 {certiorari}, 280 (estop.) 
 
 Daniels v. Cushman, 1 Hun, 73 ; p. 
 
 692 (summary proceedings). 
 
 Da VIES i>. Commissioners of Taxes 
 
 AND Assessments of Taxes of N. Y., 
 47 N. Y. 501; pp. 142, 148 (constitu- 
 tional law), 688 (statutes), 698 (taxes). 
 
 Davin v. Havemeyer, 47 How. 59 ; 
 
 pp. 446 {mandamus), 509 New York 
 city.) 
 
 Davis v. Gardner, 5 Lans. 1 ; 59 Barb, 
 
 198 ; p. 205 (county judge). 
 
 V. , 45 N. Y. 812; p. 146 (constitu- 
 tional law). 
 
 V. Hill, 65 Barb. 170 ; p. 130 {certiorari). 
 
 V. , 53 JSr. Y. 547; affirming 65 Barb. 
 
 435; p. 130 {certiorari). 
 
 Day v. Bergen, 15 Abb N. S. 97; 53 
 
 N. Y. 404; pp. 57 (appeal), 157 (con- 
 tempt), 417 (judicial sale). 
 
 People ex rel. Delafield v. Hughitt, 5 
 Lans. 89 ; p. 709 (towns). 
 
 Develin v. Asten, 4 Hun, 461 ; p. 
 
 514 (N. Y. city). 
 
 DiETZ V. Easton, 13-^68. N. S. 159; 
 
 pp. 139 (common schools), 154 (constitu- 
 tional law), 444 {mandamus). 
 
 DiLCHER V. German U. Ev. Church 
 
 OF Buffalo, 53 N. Y. 103; reversing 6 
 Lans. 172 ; pp. 445 (mandamus), 652 (re- 
 ligious corporations). 
 
 DoLAN V. Lane, 55 N. Y. 217 ; p. 445 
 
 (mandamus). 
 
 Doty v. Henshaw, 61 Barb. 409; pp. 
 
 708, 710 (towns). 
 
 Doyle v. Green, 3 Hun, 755; pp. 448 
 
 (mandamus), 520 (New York city). 
 
 V. N. Y. Benevolent Society of 
 
 Op. Masons, 3 Hun, 361 ; pp. 186 (cor- 
 poration), 282 (evidence), 445 (mand.) 
 
 DuFFiN V. Earle, 46 How. 308; p. 446 
 
 (mandamus). 
 Dunkirk & Fbe. R. R. Co. v. Cassity, 
 
 46 N. Y. 46; pp. 698, 700 (taxes). 
 
 Dunkirk, W. and P. R. R. Co. v. 
 
 Batchellor, 53 N. Y. 128; pp. 145 
 (constl. law), 449 (mandamus). 
 
 Eldredge v. Fancher, 1 Hun, 27 ; pp. 
 
 353 (former adjudication), 522 (non-im- 
 prisonment act). 
 
 Erie and Genesee Valley R. R. 
 
 Co. V. TuBBS, 59 Barb. 401; pp. 131 
 (certiorari), 643 (R. R. Co.) 
 
 V. , 49 N. Y. 356; p. 643 (R. R. Co.) 
 
 Faulkner v. Trustees of Village 
 
 OF Dansville, 1 Hun, 593 ; pp. 130 
 (certiorari), 143 (constitutional law). 
 
 Floyd v. Conklin, 5 Hun, 452 ; pp. 
 
 389 (injunction), 639 {quo warranto). 
 FooTB V. Dewey, 1 Hun, 529 ; pp. 131 
 
 {certiorari), 348 (fences). 
 Ford u. Earle, 47 How. 368; pp. 204 
 
 (county charges), 445 (mandamus). 
 
 Fowler v. Bull, 46 N. Y. 57 ; pp. 
 
 154, 155 (constitutional law), 526 (office, 
 etc.) 
 
 Frost v. Marvin Safe Co., 5 Hun, 
 
 218; p. 692 (summary proceedings). 
 
 V. Wilson, 3 Hun, 437 ; pp. 154 (con- 
 stitutional law), 690 (stat.) 
 
 FuRMAN V. Clute, 12 Abb. N. S. 399; 
 
 63 BaH. 356 ; affirmed 50 N. Y. 451; 
 pp. 155 (constitutional law), 269 (elec- 
 tion), 686 (statutes), 694 (superintendent 
 of poor). 
 
 V. , 52 iV. Y. 576; p. 199 (costs). 
 
TABLE OF CASES. 
 
 861 
 
 People ex rel. Garling v. Van Allen, 55 
 N. Y. 31 ; pp. 152 (constitutional law), 
 463 (militia). 
 
 GiLPATKicK V. Hatch, 66 Barb. 228 ; 
 
 p. 140 (common schools). 
 
 Godwin v. American Institute, 44 
 
 How. 468; pp. 186 (corp.), 445 (mand.) 
 
 Grace v. Board of Police Commis- 
 sioners OF Troy, 43 How. 385; affirm- 
 ing 12 Ahh. N. S. 181; pp. 130 (certior.), 
 448 (mandamus), 714 (Troy). 
 
 Grant v. Board of Apportionment 
 
 AND Audit of New York, 43 How. 412; 
 pp. 450 (mandamus), 512 (N. Y. city). 
 
 Green v. Dutchess & Col. K. R. Co., 
 
 58 N. Y. 152; pp. 44 (appeal), 449, 450 
 (mandamus), 641 (R. R. Co.) 
 
 Green v. Smith, 55 N. Y. 135 ; p. 710 
 
 (towns). 
 
 Gregory v. Love, 63 Barh. 535; p. 639 
 
 {quo warranto). 
 
 Grissler v. Dudley, 58 N. Y. 323; pp. 
 
 143 (constitutional law), 480 (mortgage), 
 692, 693 (summary proceedings). 
 
 V. Fowler, 55 N. Y. 675; pp. 36 (ap- 
 peal), 692 (summary proceedings). 
 
 V. Stuyvesant, 1 Hun, 102 ; pp. 266 
 
 (ejectment), 692 (sum. proceedings). 
 
 Haines v. Smith, 45 N. Y. 772 ; affg. 
 
 3 Lans. 291. See Digest, vol. iv. 
 
 Hallock v. Sleight, 2 Hun, 682; p. 
 
 130 (certiorari). 
 
 Harnet v. Inspectors of Common 
 
 Schools, etc., 44 How. 322; p. 447 
 (mandamus). 
 
 Hawley v. Earle, 46 How. 267; pp. 
 
 446 (mandamus), 511 (New York city). 
 
 Hayden v. City of Rochester, 50 N. 
 
 Y. 525; pp. 144, 149 (constl. law). 
 Heilbronner v. Hoster, 14 Abb. N. 
 
 S. 414; pp. 69 (apprentice), 369 (habeas 
 
 corpus) . 
 Henry v. Nostrand, 46 N. Y. 375; pp. 
 
 155 (constl. law), 445, 449 (mand.), 525 
 
 (office, etc.) 
 Hewlett v. Brennan, 61 Barb. 540; 
 
 pp. 336 (execution), 528 (oyer and ter.) 
 Hoag v. Peck, 42 How. 425 ; 4 Lans. 528 ; 
 
 62 Barb. 545; pp. 708, 710 (towns). 
 Hogan v. Flynn, 4 Hun, 647; 49 How. 
 
 280 ; p. 258 (district court). 
 
 Hopkins v. Board of Sups. King's 
 
 Co., 52 N.Y. 556; pp. 152, 153 (constl. 
 law). 
 
 Howlett v. Mayor, etc. of Syra- 
 cuse, 2 Hun, 433; p. 898 (Syracuse). 
 
 People ex rel. Irwin v. Sawtbk, 52 N. Y. 
 
 296; p. 710 (towns). 
 Jackson J). Potter, 42 How. 260; 47 
 
 N. r. 375; pp. 142, 146 (constitutional 
 
 law). 
 Jennys v. Brennan, 3 Hun, 666 ; pp. 
 
 87 (bankr.), 421 (jurisdiction). 
 Jermain v. Thayer, 4 Hun, 798 ; p. 
 
 114 (canals). 
 Johnson v. Board of Sups, of Dela- 
 ware Co., 45 N. Y. 196; affg. 9 ^166. 
 
 JSr. S. 408; p. 447 (mand.) 
 Johnson v. Martin, 43 How. 52 ; 62 
 
 Barb. 570 ; pp. 448, 450 (mand.) 
 JuDSON V. Thacher, 55 iV. Y. 525 ; pp. 
 
 38 (appeal), 286, 289,299 (evidence), 639 
 
 (quo. warr.) 
 V. Thatcher, 7 Lans. 274; pp. 299 
 
 (evidence), 639 {quo. warr.) 
 Kedian v. Neilson, 48 How. 454; 3 
 
 Hun, 214; pp. 446 (mand.), 507 (N. Y. 
 
 city). 
 Ketteltas v. Cady, 2 Hun, 224 ; p. 
 
 445 (mand.) 
 KiLBORNB V. Benedict, 47 N. Y. 667; 
 
 p. 37 (appeal). 
 Kilmer v. McDonald, 2 Hun, 70; S. 
 
 C. id., 601; pp. 1.31, 132 (certior.), 487 
 
 (mun. Corp.) 
 v._ , 4 Hun, 187; pp. 129 (certior.), 
 
 154 (constl. law), 372 (highway), 669 
 
 (Saratoga). 
 KiNGSLAND V. Bradley, 64 Barb. 228; 
 
 revg. 42 How. 423 ; pp. 155 (constl. law), 
 
 510 (N. Y. city). 
 V. Palmer, 52 iV. Y. 83; pp. 155 (constl. 
 
 lawj, .447 (mand.), 568 (powers), 684 
 
 (statutes). 
 Lawrence v. Brady, 56 N. Y. 182; 
 
 pp. 364 (fugitive from jus.), 370, 371 
 
 {habeas corpus). 
 V. Lyons, 5 Hun, 643; p. 216 (crimL 
 
 law). 
 
 V. ScHELL, 5 Lans. 352; p. 129 {certior.) 
 
 Lee v. Bixby, 4 Hun, 636;' p. 212 
 
 (criminal l^w). 
 
 V. Lynch, hiN. Y. 681 ; p. 40 (appeal). 
 
 Lewis v. Daly, 4 Hun, 641 ; pp. 129 
 
 (certior.), 393 (insol. debtor). 
 Lewis v. White, 59 Barb. 666; r. 373 
 
 (highway). 
 Little v. Willsea, 60 iV. Y. 507 ; p. 
 
 144 (constl. law). 
 Lock v. Com. Council of Rochester, 
 
 5 Lans. 11; pp. 483 (mun. corporation), 
 
 657 (Rochester). 
 
862 
 
 TABLE OF CASES. 
 
 People ex rel. Longwell v. McMaster, 10 
 Ahb. N.S. 132 ; pp. 688 (stats.), 709, 710 
 (towns). 
 
 Lord v. Crooks, 53 N. Y. 648 ; pp. 155 
 
 (constl. law), 559, 560 (pleading). 
 
 LuDLTjM V. Wallace, 2 Hun, 152; pp. 
 
 130 (certiorari), 372 (highway). 
 
 McBridb v. N. Y. Central R. R. Co., 
 
 51 N. Y. 623; p. 350 (forcible entry). 
 
 Macdonnell v. Fiske, 45 How. 294 ; 
 
 pp. 370 [habeas corpus) , 421 (jurisdie.) 
 
 McGowAN V. Havemeybr, 1 Hun, 61; 
 
 p. 516 ( New York city). 
 
 McLean v. Flagg, 46 N. Y. 401 ; pp. 
 
 144 (constitutional law), 688 (statutes). 
 
 Mahopac Manuf'g Co v. Van Nort, 
 
 15 Abb. N. S. 242; pp. 445 (mandamus), 
 729 (vendor and purchaser). 
 
 Mann v. Mott, 2 Hun, 672 ; aflSrmed 
 
 60 N. Y. 649; p. 373 (highway). 
 
 Marsh v. Delanet, 49 N: Y. 655 ; pp. 
 
 129, 130 (certiorari). 
 
 Martin v. BUown, 55 N. Y. 180; pp. 
 
 448 (mandamus), 702 (taxes). 
 
 V. Earle, 47 How. 458; pp. 446 (man- 
 damus), 511 (New York city). 
 
 V. McCullough, 11 Abb. N. S. 129; 
 
 p. 638 {qiw tvarranto). 
 
 Meeker v. City of Brooklyn, 14 
 
 Abb. N. S. 115; pp. 132 {certiorari), 486 
 (municipal corporation). 
 
 Meyer v. Hartman, 2 Sweeny, 576; 
 
 pp. 283 (evidence), 697 (surrogate). 
 
 Miller v. Green, 46 How. 367; pp. 
 
 446 (mandamus), 511 (New York city). 
 
 Mills v. Dayton, 50 N. Y, 681; p. 72 
 
 (assignment), 
 
 Mott v. Board of Supervisors of 
 
 Greene Co., 5 Hun, 650; pp. 447 (man- 
 damus), 695 (supervisors). 
 
 Murphy v. Board of Education of 
 
 New York, 3 Hun, 177; pp. 131 (cer- 
 tiorari), 139 (common schools). 
 
 V. LocKwooD, 3 Hun, 304 ; p. 693 (sum- 
 mary proceedings). 
 
 — ■— Navano v. Van Nort, 64 Barb. 205 ; 
 pp. 510 (New York city), 683 (statutes). 
 
 Nelson v. Jepfeeds, 2 Hun, 149; pp. 
 
 372 (highways), 448 (mandamus). 
 
 New York and Harlem R. R. Co. v. 
 
 Havbmeyer, 47 How. 494; 3 Hun, 97; 
 pp. 142, 143, 148, 152, 153, 154, 155 
 (consti'l. law), 446, 447 (mandamus), 
 514 (New York city), 733 (waiver). 
 
 O'Brien v. Green, 45 N. Y. 150; p. 
 
 694 (superior court). 
 
 People ex rel. Odle v. Kniskern, 54 iV. Y. 
 62 ; p. 373 (highway). 
 
 Oneida Natl. Bank v. Board of Su- 
 pervisors OF Madison Co. , 51 N. Y. 
 442 ; pp. 130 (certiorari), 703 (taxes). 
 
 — — Oswald v. Goff, 52 JVT. Y. 434 ; pp. 
 42 (appeal), 700 (taxes). 
 
 Oswego Canal Co. v. City of Oswe- 
 go, 5 Hun, 117; p. 702 (taxes). 
 
 Otsego County Bank v. Board op 
 
 Supervisors op Otsego Co., 51 N. Y. 
 401; pp. 447 (mandamus), 686 (statutes). 
 
 OuTWATER V. Green, 56 N. Y. 466 ; 
 
 pp. 512 (New York city), 685 (statutes). 
 
 Pacific Mail Steamship Co. v. Com- 
 missioners of Taxes of New York, 
 A6 How. 315; again 47 flow). 164; IHun, 
 143; affirmed 58 N. Y. 242; p. 699 
 (taxes). 
 
 V. , 5 Hun, 200; p. 699 (taxes). 
 
 Parker v. Jeff. Co. Court, 55 N. Y. 
 
 604 ; p. 262 (drainage). 
 
 Perkins v. Hawkins, 46 N. F. 9; p. 
 
 449 (mandamus). 
 
 Phelps v. Fancher, 2 Hun, 226 ; pp. 
 
 158 (contempt), 369, 370 (habeas corpus). 
 
 Pitts v. Board of Sups, of Ulster 
 
 Co. , 63 Barb. 83 ; p. 687 (statutes). 
 
 PoMEROY V. Green, 44 How. 201 ; 63 
 
 Barb. 390; pp. 446 (mandamus), 512 
 (New York city). 
 
 Pratt v. Common Council of Brook- 
 lyn, 13 Abb. N. S. 121; pp. Ill (Brook- 
 lyn), 144 (constitutional law). 
 
 Prbsmbybr v. Board of Commrs. of 
 
 Police of Brooklyn, 59 N. Y. 92; pp. 
 114 (Brooklyn), 150 (constitutional law). 
 
 Purdy v. Commrs. of Highways, 
 
 Town of Marlborough, 54 N. Y. 276; 
 pp. 144 (const'l. law), 286 (evidence). 
 
 PuRSEN V. Green, 1 Hun, 86; p. 521 
 
 (New York city). 
 
 Ream Pavement Co. v. Board of 
 
 Improvement, 43 N. Y. 227; p. 482 
 (municipal corporation). 
 
 Robinson v. McManus, 47 i\^. Y. 661; 
 
 p. 38 (appeal). 
 
 Rogers v. Spencer, 55 N. Y. 1 ; p. 
 
 709 (towns). 
 
 Ryan v. Green, 58 iV. F. 295 ; aSg. 
 
 46 How. 169 ; pp. 147 (constl. law), 206 
 (common pleas), 446, 449 (mand.), 526 
 (office, etc.) 
 
 Sayre v. Franklin, 5 Lans. 129 ; p. 
 
 710 (towns). 
 
 Schuylervillb and U. Hud. R. K. 
 
TABLE OF CASES. 
 
 863 
 
 Co. V. Bktts, 55 N. Y. 600 ; p. 129 (cer- 
 
 twr.ari). 
 People ex rel. Seymour v. Canal Board, 
 
 7 Lans. 220 ; pp. 114 (canals), 129 (certio- 
 rari). 
 Sheldon u. Gower, 44 How. 26; p. 197 
 
 (costs). 
 Sheridan v. Andrews, 52 N. Y. 445; 
 
 pp. 45 (appeal), 129 (certiorari), 692 
 
 (summary proceedings). 
 
 Sherrill v. Canal Board, 4 Lans:. 
 
 272 ; pp. 152 (constl. law), 445 (mand.) 
 
 Sliker v. Hotey, 4 Lans. 86 ; p. 692 
 
 (summary proceedings). 
 Smith v. Board of Town Auditors, 
 
 5 Hun, 647 ; p. 707 (towns). 
 Stemmlee v. McGuire, 43 How. 67; 
 
 p. 639 (quo warranto). 
 V. , 2 Hun, 268 ; affd. 60 N. Y. 640; 
 
 pp. 52 (appeal), 289, 299, 306 (evidence), 
 
 505, 506 (new trial), 587, 594 (praot.) 
 
 Stephens v. Halset, 53 Barb. 547 ; 
 
 36 How. 487 ; p. 698 (taxes). 
 
 Stetzer v. Kawson, 61 Barh. 619 ; 
 
 pp. 151 (constl. law), 213 (crim. law), 
 370 (hab. Corp.), 677 (special sessions). 
 
 Stockwell v. Earlb, 47 How. 370 ; 
 
 pp. 450 (mandamus), 511 (New York 
 city). 
 
 Stout v. Chapman, 5 Hun, 222 ; p. 
 
 395 (insurance). 
 
 SUNDEELIN t). OvENSHIKE, 41 HoW. 
 
 164 ; pp. 449; 460 (mandamus). 
 Sups, op Westchester Co. v. Fowler, 
 
 55 N. Y. 252 ; p. 448 (mandamus). 
 Tenth J!^atl. Bank of New York t. 
 
 Board op Apportionment, etc., 3 
 
 Hun, 11 ; p. 445 (mandamus). 
 
 V. Green, 3 Hun, 208; p. 449 (mand.) 
 
 Tompkins v. Landreth, 1 Hun, 544 ; 
 
 pp. 131. (certiorari), 372 (highway). 
 Tracy v. Green, 47 How. 382 ; pp. 
 
 204 (county charges), 445 (mandamus). 
 Trowbridge v. Commrs. op Taxes, 
 
 etc., 4 Hun, 595; pp. 698, 699 (taxes). 
 Trundy v. Van Nort, 65 Barh. 331 ; 
 
 p. 515 (N. Y. city). 
 TuLL V. Kenny, 2 Hun, 346; p. 157 
 
 (contempt). 
 Tweed v. Liscomb, 60 iV^. Y. 559; revg. 
 
 3 Hun, 760 ; pp. 215, 217, 227 (criminal 
 
 law), 369, 370 (hah. corp.), 677 (special 
 
 sessions), 687, 688 (statutes). 
 Underwood v. Daniell, 6 Lans. 44 ; 
 
 afEd. 50 N. Y. 274 ; pp. 147 (constl. law), 
 
 206 (court-martial). 
 
 People ex rel. Van Sickle v. Eldeidge, 3 
 
 ir«n,. 541; p. 373 (highway). 
 Wade v. Strack, 1 Hun; 96 ; p. 508 
 
 (N. Y. city). 
 Walker v. Albany Hospital, 11 
 
 Ahh. N. S. 4; 61 Barh. 397 j pp. 185 
 
 (corporation), 445 (mandamus). 
 
 u. Court of Special Sessions op 
 
 New York, 4 Hun, 441; pp. 211 (criml. 
 law), 677 (special sessions). 
 
 Waller v. Board of Suprs. of Sul- 
 livan Co., 56 N. Y. 249 ^ pp. 445, 450 
 (mandamus). 
 
 Walters v. O'Conner, 15 Ahh. N. S. 
 
 430 ; p. 158 (contempt). 
 
 Ward v. Asten, 49 How. 405 ; pp. 445 
 
 (mand.), 514 (N. Y. city), 685 (stat.) 
 
 Washington v. Nichols, 52 N. Y. 
 
 478; pp. 154 (constl. law), 568 (powers), 
 
 Wehle v. Weissenbach, 60 N. F.385; 
 
 pp. 69 (apprentice), 371 (habeas corpus). 
 Welch v. Nash, 3 Hun, 535 ; p. 204 
 
 (counties). 
 Wells v. Board op Audit of Town 
 
 OF Hempstead, 4 Hun, 94 ; p. 448 
 
 (mandamus). 
 Westbrook v. Trustees of Village 
 
 OF Ogdensburgh, 48 N. Y. 390; pp. 
 
 130 {certiorari), 700, 701 (taxes). 
 White v. Hulbebt, 46 N. Y. 110; re- 
 versing 59 Barh. 446 ; pp. 131 (certiorari)! 
 
 709 (towns). 
 Williams v. Board op Assessors of 
 
 Albany, 2 Hun, 583; pp. 129 (certior.), 
 
 699 (taxes). 
 V. Dayton, 55 N. Y. 367 ; pp. 115 (can.), 
 
 142, 152 (constitutional law). 
 
 V. Haines, 49 N. Y. 587; p. 689 (stats.) 
 
 Williamson v. McKinney, 52 N. Y. 
 
 374 ; pp. 155 (const, law), 707 (towns). 
 WoLOF V. Jacobs, 5 Hun, 428; pp. 158 
 
 (contempt), 370 (habeas corpus). 
 Yawger v. Allen, 52 N. Y. 538 ; pp. 
 
 106 (bonds), 130 (certiorari). 
 Youmans v. Board of Superv's. op 
 
 Delaware County, 47 How. 24; pp. 
 
 449 (mandamus), 699 (taxes). 
 V. , 60 N. Y. 381; reversing 2 Hun, 
 
 102; p. 702 (taxes). 
 V. Wagner, 7 Lans. 467; pp. 129 (cer- 
 tiorari), 710, 711 (towns). 
 People's Fire Ins. Co., Unger v. 
 
 , Williams v. 
 
 Pepin u. Lachenmeyer, 45 N. Y. 27; pp. 
 
 287, 288 (evidence), 415 (judgment), 526 
 
 (offices, etc.), 582 (practice). 
 
864 
 
 TABLE OF CASES. 
 
 Perkins v. Butler, 42 How. 102 ; pp. 580 
 (practice), 683, 686 (statutes). 
 
 V. Giles, 6 Lans. 437; pp. 10 (action), 
 
 71 (arbitration). 
 
 V. , 50 N. Y. 228 ; affg. 53 Bari. 
 
 342. See Digest, vol. iv. 
 
 V. Hatch, 4 Hun, 137; p. 189 (corp.) 
 
 V. Hill, 56 N. Y. 87; p. 47 (appeal). 
 
 V. Perkins, 7 Lans. 19; 62 Barb. 531; 
 
 pp. 24 (action), 380 (husband and wife). 
 V, Proud, 62 Barb. 420 ; pp. 160 (con- 
 tract), 338 (execution). 
 Perrin, Muller v. 
 Pbrrine, Miller v. 
 Perry, Adams v. 
 
 V. Chester, 12 Abb. N. S. 131; pp. 171 
 
 (contract), 554 (plead.), 722 (undertak.) 
 
 V. Chester, 53 N. Y. 240; reversing 36 
 
 N. Y. Supr. 228; pp. 78 (attorney), 671 
 (set-off). 
 
 V. Edwards, 44 N. Y. 223 ; pp. 297 
 
 (evidence), 689 (statutes). 
 
 , Griswold v. 
 
 V. Lorillard Fire Ins. Co., 6 Lans. 
 
 201 ; p. 398 (insurance). 
 
 , Rue v. 
 
 Pesant v. Pickersgill, 56 N. Y. 650 ; p. 
 160 (contract). 
 
 , Kobinson v. 
 
 Peters w. Delaplaine, 49 N. Y. 362; pp. 
 
 439, 441 (lim. of act.), 680 (spec, perf.) 
 Peterson, Weed v. 
 Petree, Stewart v. 
 
 Petrib v. Barklby, 47 N. Y. 653 ; p. 252 
 (defense). 
 
 V. DoRWiN, 1 Hun, 617; p. 660 (sale). 
 
 V. Petrie, 7 Lans. 90 ; pp. 21, 27 (ac- 
 tions), 434 (legacy), 547 (pleading). 
 Pettbngil, Holmes v. 
 Pettibone v. Blackmab, 48 N. Y. 689; p. 
 
 101 (bills and notes). 
 Pettigrbw, Livingston v. 
 Pbttis v. Pier, 1 Hun, 622 ; p. 60 (appeal). 
 Pettit, People v. 
 
 Pbugnbt, In Matter op, 5 Hun, 434 ; p. 
 517 (N. T. city). 
 
 , Hatch v. 
 
 Peyser, Townsbnd v. 
 
 Ppohl u. Sampson, 59 N. Y. 174; p. 37 
 
 appeal). 
 Phelan, Hates v. 
 
 Phelps v. Baker, 41 How. 237; 60 Barb. 
 107; pp. 415 (judgment), 418 (jurisdic- 
 tion), 452 (marriage and divorce). 
 
 V. City of Watertown, 61 Barb. 121; 
 
 pp. 2a (action), 482 (municipal corp.) 
 
 V. Hawley 52 N. Y. 123; affirming 3 
 
 Lans. 160. See Digest, vol. iv. 
 
 , HiSCOCK V. 
 
 , Isham v. 
 
 , People v. 
 
 V. Racey, 60 N. Y. 10; pp. 151, 154 (con- 
 stitutional law), 543 (penal action). 
 
 V. Swan, 2 Sweeny, 696; p. 59 (appeal). 
 
 V. Vischer, 50 N. Y. 69; pp. 49 (app'L), 
 
 93 (bills and notes). 
 
 V. Wood, 46 How. 1; p. 199 (costs.) 
 
 Phbnix Ins. Co. v. Continental Ins. Qo., 
 
 14 Abb. N. S. 266; pp. 206 (covt-.), 385 
 
 (injunction), 726 (vendor and purch'r.) 
 Philbrick u. Dallbtt, 43 How. 419 ; 34 
 
 JSr. Y. Supr. 370 ; 12 Abb. N. S. 419 ; 
 
 pp. 99 (biUs and notes), 305 (evidence). 
 Phillippi v. Wolfe, 14^166. N. 8. 196; p. 24 
 
 (action).- 
 Phillip v. Gallant, 1 Hun, 528; pp. 171, 
 
 173 (contract). 
 Phillips, In re., 60 N. Y. 16; reversing 
 
 S. C, subnom, Phillips v. Mayor, etc. 
 
 of New York, 2 Hun, 212 ; pp. 138 
 
 (cloud on title), 282 (evidence), 516, 519 
 
 N. Y. city). 
 V. Campbell, 43 N. Y. 271 ; p. 632 
 
 (principal and agent). 
 
 V. Clark, 48 N. Y. 677; p. 529 (parties.) 
 
 V. CONKLIN, 58 N. Y. 682 ; p. 728 
 
 (vendor and purchaser). 
 
 , Cook v. 
 
 , Groat v. 
 
 V. HiGGiNS, 7 Lans. 314 ; p. 678 (specific 
 
 performance). 
 V. McCombs, 53 N. Y. 494; p. 315 
 
 (evidence). 
 V. Mayor, etc. of New York city, 2 
 
 Hun, 212; reversed 60 N. Y. 16; pp. 
 
 138 (cloud on title),' 284 (evidence). 
 
 , NOYES V. , 
 
 V. Rensselaer and Sar. R. R. Co., 47 
 
 N. Y. 177 ; reversing 57 Barb. 642 ; pp. 
 332 (evidence), 500 (negligence). 
 
 , Ritter v. 
 
 , Robinson v. 
 
 , RUHL V. 
 
 V. Shiffer, 14 Abb. N. S. 101; 7 Lans. 
 
 347 ; 64 Barb. 548; pp. 290 (evidence), 
 339 (execution). 
 
 V. Spbyers, 49 N. Y. 653 ; p. 608 (pract.) 
 
 V. Wheeler, 2 Hun, 603; pp. 338 (exe- 
 cution), 624 {practice).) 
 — V. Wicks, 45 How. 477; 14 Abb. N. S. 
 380 ; 36 N. Y. Supr. 254 j p. 380 (hus- 
 band and wife). 
 
TABLE OF OASES. 
 
 865 
 
 V. , 38 N. Y. Supr. 74 ; p. 77 (atty.) 
 
 , Wood v. 
 
 Phipps, Totten v. 
 
 Phcenix Bank of New York, Risley v. 
 
 Phcenix Fike Ins. Co., Colt v. 
 
 V. Continental Ins. Co., 14 .465. N. 
 
 S. 266 I p. 385 (inj.), 726 (vend. & pur.) 
 
 , Steward v. 
 
 Ins. Co., Fabbri v. 
 
 , Pechner v. 
 
 MuT. Ins. Co., Barteau v. 
 
 Life Ins. X!o., Shear v. 
 
 — —, Tifft v. 
 
 Mills op Seneca Falls, Conkhn v. 
 
 Phyfe v. Eimer, 45 N. Y. 102; pp. 431 
 
 landlord and tenant), 734 (waiver). 
 PiCKARD, Moore v. 
 
 PiCKERSGILL, EaSTON V. 
 
 , Pesant v. 
 
 V. Read, 5 Hun, 170; pp. 383 (idiots, 
 
 &c.), 474 (mortgages). 
 Pier, Pettis v. 
 Pierce, Bell v. 
 Pierce v. Chamberlain, 41 How. 501 ; p. 
 
 434 (legacy). 
 V. Empire Ins. Co., 62 Barb. 636 ; p. 
 
 402 (insurance). 
 
 V. Kinney, 59 Barb. 56 ; p. 736 (waterc.) 
 
 , Knowlton v. 
 
 , pomeroy v. 
 
 V. Tuttle, 57 N. Y. 636 ; p. 728 (ven- 
 dor and purchaser). 
 
 „. , 58 N. Y. 650 ; p. 322 (evid.) 
 
 V. Wright, 45 How. 1 ; 6 Lans. 306 ; 
 
 pp. 130 (cert.), 318 (evid.), 389 (inj.), 548 
 
 (pleading), 710 (towns). 
 
 , Wright v. 
 
 PiERPONT V. Patrick, 53 N. Y. 591 ; p. 749 
 
 (will). 
 PiERREPONT, Town of, v. Lovelass, 4 Hun, 
 
 681 ; p. 200 (costs). 
 V. , 4 Hun, 696 ; pp. 22 (action), 
 
 560 (pleading), 631 (principal and agt.) 
 PifcRSON, Bridger v. 
 Pike, Jarvis v. 
 
 i>. Johnson, 47 N. Y. \; p. 68 (appeal). 
 
 V. Walter, 48 N. Y. 681 ; p. 180 (con- 
 version). 
 Pillsbury, Moore v. 
 Pinckney v. Hagerman, 4 Lans. .374 ; afid. 
 
 53 N. Y. 81 ; p. 339 (execution). 
 V. PoMEROY, 62 Barb. 460; p. 636 
 
 (principal and surety). 
 Pindar v. Kesolute Fike Ins. Co., 47 N. 
 
 Y. 114 ; p. 317 (evidence). 
 Pine, Thompson v. 
 
 55 
 
 PiNNEY, JaYCOX V. 
 
 Piper v. N. Y. Central and Hudson Riv. 
 R. R. Co., 56 N. Y. 630 ; p. 579 (prac.) 
 
 Pistor v. Brundrett, 42 How. 5 ; svh nom, 
 
 PiSTOR V. Hatfield, 46 N. Y. 249 ; pp. 45 
 (appeal), 415 (judge), 733 (waiver). 
 
 Pitcher v. Hennessey, 48 N. Y. 415 ; pp. 
 167, 172 (contract), 254 (defense), 556 
 (pleading). 
 
 Pitkin «. Cooley, 5i7«ji, 48; p. 196 (costs.) 
 
 Pitney v. Glens Falls Ins. Co., 61 Barb. 
 335 ; pp. 397, 399, 400, 401 (ins.), 582 
 (prac.) 
 
 Pitt, Muldoon v. 
 
 , Thornall v. 
 
 Pittman v. Mayor, etc. of N. Y. city, 3 
 Hun, 370 ; pp. 352 (former adjudica- 
 tion), 555 (pleading). 
 
 Pitts v. Hunt, 6 Lans. 146 ; p. 442 (limita- 
 tion of actions). 
 
 , Moore v. 
 
 V. Pitts, 44 How. 64; 13 Abb. N. S. 
 
 272 ; 64 Barb. 482 ; afPd. 44 How. 300 ; 
 14 Abb. N. S. 97; 52 N. Y. 593; 45 How. 
 45 ; p. 260 (dower). 
 
 PiTTSTON & ElMIRA COAL CO., ArNOT V. 
 
 PiXLEY, Hill v. 
 
 V. Third Av. R. R. Co., 33 N. Y. Supr 
 
 406; pp. 298 (evidence), 579 (practice). 
 Place v. Chesbborough, 4 Hun, 576 ; p. 
 
 600 (practice). 
 V. GreeNman, 4 Hun, 660 ; p. 109 
 
 (broker). 
 
 , Hills v. 
 
 , McAndrew v. 
 
 , Strong v. 
 
 Planer, Coit v. 
 
 , Kenney v. 
 
 Plank, Green v. 
 
 V. N. Y. Central and Hudson River 
 
 R. R. Co., 60 N. Y. 607 ; p. 495 (negl.) 
 Platt v. Beebe, 57 N. Y. 339 ; pp. 100 
 
 (bills and notes), 289 (evidence). 
 Platt, Carnes v. 
 
 , Central Gold Mining Co. v. 
 
 V. Chapjcn, 49 How. 318; p. 136 (check). 
 
 V. Forty-Second St. and Grand St. 
 
 Ferry R. R. Co., 2 Hun, 124 ; p. 500 
 
 (negligence) . 
 
 V. Parker, 4 Hun, 135 ; p. 89 (bankr.) 
 
 V. Platt, 11 Abb. N. S. 110; 61 Barb. 
 
 52 ; p. 572 (practice). 
 V. , 58 N. Y. 646; pp. 43 (appeal), 
 
 270 (equity), 311, 816 (evidence), 583 
 
 (practice). 
 V. Stewart, 47 How. 206 ; p. 89 (bankr.) 
 
866 
 
 TABLE OF CASES. 
 
 Plattsb. & Mont. R. R. Co., Hoylb v. 
 Plimpton Fire Pkoop E. Co. Nilson v. 
 Ploedterll v. Mayok, etc. of N. Y. city, 
 
 55 TV; F. 666; p. 494 (negligence). 
 Plumb, Schell v. 
 Plympton v. Bobhme, 4 Hun, 398 ; p. 728 
 
 (vendor and purchr.) 
 PoHALASKi i). Mux. LiPE Ins. Co. OP N. Y., 
 
 45 How. 504; 36 N. Y. Supr. 234; pp. 
 
 321 (evidence), 406 insurance). 
 PoiLLON, Bray v. 
 V. Mayor, etc. op N. Y. city, 47 N. 
 
 Y. 666; p. 458 (mecha. lien). 
 
 POLHANS, SCHMALHOLZ V. 
 
 Polk v. Daly, 14 Ahh. N. S. 156 ; 4 Daly, 
 
 411; pp. 176 (contract), 298 (evidence), 
 
 455 (master and servant). 
 Pollard v. Rocke, 36 N Y. Supr. 301 ; pp. 
 
 99 (bills and notes), 296 (evidence).^ 
 Pollett v. Long, 56 N. Y. 200 ; pp. 47 (app.), 
 
 488 (negligence), 596 (practice). 
 Pollock v. Brennan, 39 N. Y. Supr. 477 ; 
 
 pp. 62 (appeal), 316 (evidence), 505 (new 
 
 trial). 
 POLLOK V. Shultze, 1 Hun, 320; p. 187 
 
 (corporation). 
 POMEROY V. Pierce, 5 Hun, 119 ; p. 304 
 
 (evidence). 
 
 , PiNCKNEY V. 
 
 Pond v. Clark, 57 N. Y. 653; p. 638 (prin- 
 cipal and agent). 
 
 PoNDiR, Muller v. 
 
 PoNVERT, Belmont v. 
 
 Pool, Day v. 
 
 Poole v. Kermit, 37 N. Y. Supr. 114; affd. 
 59 N. Y. 554; pp. 106 (bonds), 154 
 (constl. law), 354 (former adj.), 674 
 (ships). 
 
 , Manton v. 
 
 Poolman, Bunaclaugh v. 
 
 Poor v. Bo wen, 1 Hun, 122; affd. 60 N. Y. 
 626; p. 62 (appeal). 
 
 Pope, Baker v. 
 
 V. Bank op Albion, 57 N. Y. 126 . 
 
 revg. m Barb. 226; pp. 83 (banks), 98 
 (bills and notes), 135 (checks). 
 
 V. Cole, 64 Barb. 406 ; affd. 55 N. Y. 
 
 124 ; pp. 23 (action), 537 (partner- 
 ship). 
 
 V. O'Hara, 48ji\r. Y. 446; pp. 263 
 
 (easement), 320 (evidence). 
 
 PoPHAM V. Wilcox, 14 Ahb. N. S. 206; pp. 
 388 (injunction), 712 (trade-mark). 
 
 „. , 38 N. Y. Supr. 274; p. 713 
 
 (trade-mark). 
 
 POPPENHAUSBN, PiPEE V. 
 
 Porter, Dutcher v. 
 
 V. Kingsbury, 5 Hun, 597; p. 551 (pldg.) 
 
 V. Knapp, 6 Lans. 125; pp. 101 (bills 
 
 and notes), 296 (evidence). 
 
 , Newton v. 
 
 V. Parks, 49 N. Y. 564; pp. 103 (bona 
 
 fde holder), 567 (pledge), 628 (principal 
 
 and agent). 
 V. , 2 Hun, 654; pp. 293 (evid.), 
 
 582 (practice). 
 
 V. , 2 Hun, 675 ; p. 606 (prac- 
 tice). 
 
 V. Parmly, 43 How. 445; 34 N. Y. 
 
 Supr. 398; 13 Abb. N. S. 104; in part 
 reversed, 14 Abb. N. S. 16 ; 52 N. Y. 
 185 ; pp. 133, 134, 135 (chattel mort- 
 gage), 337 (execution). 
 
 V. , 38 N. Y. Supr. 490 ; pp. 53 
 
 (appeal), 733 (waiver). 
 
 V. , 39 N. Y. Supr. 219 ; pp. 77, 79 
 
 (attorney), 151 (constitutional law). 
 
 , Wapfle v. 
 
 Post, Brown v. 
 
 V. DoREMUS, 1 Hun, 521; modified 60 
 
 N. Y. 371 ; pp. 721, 722 (undertaking). 
 
 , Evans v. 
 
 V. Hathorn, 54 N. Y. 147 ; pp. 48 (ap- 
 peal), 506 (new trial), 597 (practice). 
 
 V. Post, 65 Barb. 192; p. 532 (partition). 
 
 , Rose v. 
 
 V. Sm;ith, 54 N. Y. 648 ; p. 467 (money 
 
 paid). 
 
 , Smith v. 
 
 Potter v. Ellice, 48 N. Y. 321 ; pp. 529 
 
 (parties), 597 (practice), 732 (waiver). 
 
 , Howe v. 
 
 , lounsbury v. 
 
 , People ex rel. Jackson v. 
 
 PouoHER V. N. Y. Central R. R. Co., 49 
 
 N. Y. 263; p. 501 (negligence). 
 
 , Second Nat. Bank op Oswego v. 
 
 poughkeepsie, and eastern r. r. co. , 
 
 Matter op, 63 Barb. 151; p. 642 (R. R. 
 
 Co.) 
 PouLiN V. Broadway, etc. R. R. Co., 34 
 
 N. Y. Supr. 296; p. 491 (negligence). 
 
 POULLAIN, GOWDY V. 
 
 Powell v. People, 5 Hun, 169; pp. 217 
 (criminal law), 528 (oyer and terminer). 
 
 V. Powell, 3 Hun, 413; p. 183 (con- 
 version). 
 
 V. Preston, 1 Hun, 513 ; pp. 8 (action), 
 
 359 (frauds, statute of), 659 (sale). 
 Powers, Booth v. 
 
 u. Co>'ROY, 47 How. 84; p. 198 (costs). 
 
 , Du Flon v. 
 
TABLE OF OASES. 
 
 867 
 
 Powers v. French, 1 Hun, 582; pp. 96 (bills 
 
 and notes), 563 (pleading). 
 V. Hughes, 39 N. Y. Supr. 482; p. 571 
 
 (practice). 
 
 V. Jackson, 57 N. Y. 654; p. 260 
 
 (dower). 
 
 V. Powers, 48 How. 389 ; pp. 271 
 
 (equity), 342 (exrs. and adm.) 
 
 V. Rome, Wat. & "Og. R. R. Co., 3 
 
 Hun, 285; p. 552 (pleading). 
 
 V. Shepard, 48 N. Y. 540; reversing 
 
 49 Barb. 419; 35 How. 53 ; pp. 145 (con- 
 stitutional law), 683 (statutes). 
 
 , Stewart v. 
 
 V. Trenor, 3 Hun, 3; affirming 48 
 
 How. 500 ; p. 606 (practice). 
 
 , Vanneman v. 
 
 , Walsh v. 
 
 V. Witty, 42 How. 352 ; 4 Daly, 552 ; 
 
 pp. 287 (evidence), 354 (former adjudi- 
 cation), 430 (landlord and tenant). 
 
 Pratt v. Chase, 44 N. Y. 597; reversing 29 
 
 How. 296 ; 19 Abb. 150 ; p. 394 (insolv. 
 
 debtor). 
 V. N.' Y. Central Ins. Co., 55 N. Y. 
 
 505; affirming 64 Barb. 589; pp.398, 
 
 404 (insurance). 
 
 V. Norton, 2 Hun, 517; p. 585 (pract.) 
 
 , Ogdensburgh, etc. R. R. Co. v. 
 
 , Sherwood v. 
 
 Premo v. Smith, 10 Abb. N. S. 90 ; 2 
 
 Sweeny, 467; p. 576 (practice). 
 Prendegast v. N. Y. Central & Hudson 
 
 River R. R. Co., 58 N. Y. 652; pp. 494, 
 
 502 (negligence). • 
 Prendergast v. Borst, 7 Lans. 489 ; pp. 91 
 
 (bills and notes). 380 (husband and 
 
 wife). 
 Prentice, Galvin v. 
 
 , Marvin v. 
 
 Presb. Church, Corner Fifth Ave. and 
 
 Nineteenth St., Alexander Presb. 
 
 Church v. 
 Prescott, People ex rel. Bridenbecker v. 
 President, etc. or Del. & Hudson Canal 
 
 Co. V. Penn. Coal Co., 50 N. Y. 250 ; 
 
 pp. 5 (actions), 169 (contract). 
 
 , Read v. 
 
 , etc. or Great West'n. Turnpike 
 
 Co., Titus v. 
 , etc. op Vil. op Greenbush, Bost. 
 
 AND Albany R. E. Co. v, 
 
 , Vandenburgh v. 
 
 , ETC. In8. Co. op N. Am., First Nat. 
 
 Bank op Ballston Spa v. 
 , McMaster v. 
 
 , ETC. ofN. Y. Gas Light Co., People v. 
 
 , ETC. OP Union Bridge Co. v. Troy & 
 
 Lansingburgh R. R. Co., 7 Lans. 240; 
 pp. 173 (contract), 187 (corporation), 
 568 (powers). 
 
 Preston, Powell v. 
 
 , Westpall v. 
 
 Prevot v. Lawrence, 51 N. Y. 219 ; p. 274 
 (estoppel), 333 (evidence), 378 (husband 
 and wife), 425 (landlord and tenant). 
 
 Price v. Hartshorn, 44 N. Y. 94; affg. S. 
 C, 44 Barb. 655. See Digest, vol. i. 
 
 V. Keyes, 1 Hun, 177; pp. 239 (dam.), 
 
 582, 598 (practice), 632, 635 (priiicipal 
 and agent). 
 
 V. Oswego and Syracuse R. R. Co., 
 
 50 N. Y. 213; reversing 58 Barb. .599; 
 p. 123 (carrier). 
 
 Price v. Price, 55 N. Y. 656 ; p. 452 (mar- 
 riage and divorce). 
 
 V. , 2 Hun, 611; p. 548 (pleading). 
 
 Priest, Gilbert v. 
 
 V. Hudson River R. R. Co., 10 ^466. 
 
 iV. S. 60.; 2 Sweeny, 595; p. 438 (lim. 
 of actions). 
 
 Priestly, Hill v. 
 
 Prince, Sweetman v. 
 
 Prindle v. Beveridge, 7 Lans. 225; affd. 
 58N.Y.59S; pp. 273 (estoppel), 438 
 (limitation of actions), 721 (trusts), 749 
 (will). 
 
 Pritchard, Stanton v. 
 
 Produce Bank op N. Y. v. Baldwin, 49 
 How. 277; pp. 30 (affidavit), 74, 75, (as- 
 signment for benefit). 
 
 Proestler v. Kuhn, 49 N. Y. 654 ; p. 41 
 (appeal). 
 
 Prospect Park, In re, 60 N. Y.398; affg. 
 S. C, sub nom, Brooklyn City v. Lott, 
 2 Hun, 628; pp. 112 (Brooklyn), 486 
 (municipal corporations). 
 
 Prosser, Roberts v. 
 
 Protestant Epis. Church of N. Y., In 
 Matter op, 46 N. Y. 178; reversing 40 
 How. 139; 58 Barb. 161; pp. 146 (const, 
 law), 515 (N. Y. city). 
 
 Protestant Reformed Dutch Church v. 
 Bogardus, 5 Hun, 304; p. 244 (deed). 
 
 Proud, Perkins v. 
 
 Prouty v. Michigan Southern and Nor. 
 Ind. R. R. Co., 1 Hun, 655 ; pp. 58 (ap- 
 peal), 184, 188 (corporations), 350 (for. 
 corporations), 688 (statutes). 
 
 V. Lake Shore and Mich. Southern 
 
 R.R. Co., 52 N. Y. 363; pp. 188 (cor- 
 porations), 350 (foreign corporations). 
 
86-8 
 
 TABLE OF CASES. 
 
 V. Swift, 51 iV. Y. 594; pp. 233 (dam.), 
 
 534 (partnership), 608 (practice). 
 Providence and N. Y. Steamship Co., 
 
 Knowlton v. 
 Peudden v. City op Lockpokt, 43 How. 
 
 286; S. C. before, 40 How. 46; p. 569 
 
 (practice). 
 Pruden, Fox v. 
 
 , SCHirPER V. 
 
 Peyor, Commonwealth Bank op Phil. v. 
 PuCKHAPER V. White, 33 N. Y. Supr. 267 ; 
 
 p. 414 (joiet liability). 
 PuDNEY, Kinney v. 
 PuGSLEY, West Side Bank v. 
 
 PULESTON, DeMING V. 
 
 PcLLAR V. Easton, 6 Lans. 247; p. 170 
 
 (contract). 
 Pullman v. Alley, 53 N. Y. 637; pp. 175 
 
 (contract), 250 (defense), 470 (mortgage). 
 PuLVEK V. Harris, 61 Barb. 78; p. 504 
 
 (new trial). 
 V. , 52 N. Y. 73 ; affg. 62 Barb. 
 
 500 ; pp. 72 (assignment), 78 (atty.), 604 
 
 (practice). 
 
 , Richardson v. 
 
 , Tripp v. 
 
 PuMPELLY V. Village op Owego, 45 How. 
 
 219; pp. 153 (const. law), 282 (evidence), 
 392 (injunction), 483, 487 (mun. corp.), 
 544 (pleading), 605 (practice), 685 (stat- 
 utes). 
 
 PUNNETT, HeNNING V. 
 PORCELL, InNES V. 
 
 V. Jaycox, 59 JV. Y. 288; pp. 354 (form- 
 er adjudication), 631 (principal and agt.) 
 
 PuRDY, Gedney v. 
 
 , Kerr v. 
 
 V. Sistaee, 2 Hun, 126; pp. 441 (limit- 
 ation of actions),. 716 (trust). 
 
 Purvis, Morss v. 
 
 Pusey v. Bradley, 46 How. 255 ; p. 390 
 (injunction). 
 
 V. N. J. West Line R. R. Co., 14 Abb. 
 
 N. S. 434 ; pp. 18 (action), 186 (corp.), 
 233 (damages), 282, 300 (evidence). 
 
 Putnam v. Broadway, etc. R. R. Co., 15 
 Abb. N. S. 383 ; 55 N. Y. 108 ; revg. 
 36 N. Y. Supr. 195; p. 644 (R. R. Co.) 
 
 V. Heath, 41 How. 262; p. 67 (appeal). 
 
 Putnam u. Schuyler, 4 Hun, 166; p. 635 
 (pi-inoipal and surety). 
 
 Putnam Fire Ins. Co. , Holden v. 
 
 , Whitwell v. 
 
 Pyatt, Aldrich v. 
 
 Q. 
 
 Quackenbos v. Edgar, 34 N'. Y. Supr. 333; 
 
 p. 20 (action). 
 QuAssAic Natl. Bank op Newburgh v. 
 
 Waddel, 1 Hun, 125 ; p. 379 (husband 
 
 and wife). 
 Queen v. Second Ave. R. R. Co., 44 How. 
 
 281 ; 35 N. Y. Supr. 154 ; p. 187 (corp.) 
 Queen's County Ferry Co., Wyckopp v. 
 
 QUENTELL, GeLPECKE V. 
 
 Quick, Handley v. 
 
 Quicksilver Mining Co., Barclay v. 
 
 QciGG, People v. 
 
 Quigley, Barnes v. 
 
 V. Walter, 2 Sweeny, 175 ; pp. 25 (ac- 
 tion), 607 (practice). 
 
 QuiN V. Mayor, etc. op New York, 44 
 How. 266 ; 63 Barb: 595 ; pp. 259 (dist. 
 court), 522 (N. Y. city). 
 
 QuiN, Skinner v. 
 
 QuiNCEY V. Young, ^3 N'. Y. 504 ; p. 50 (ap- 
 peal). 
 
 QuiNLAN V. Sixth Ave. R. R. Co., 4 Daly, 
 487 ; p. 494 (negligence). 
 
 QuiNN V. Carr, 4 Hun, 259 ; p. 630 (prin- 
 cipal and agent). 
 
 QuiNN, Erickson v. 
 
 V. Hardenbrook, 54 N. Y. 83 ; p. 750 
 
 (will). 
 
 V. Martin, 54 N. Y. 660 ; p. 604 (prac- 
 tice). 
 
 V. Van Pelt, 56 N. Y. 417 ; revg. 36 
 
 N. Y. Supr. 279 ; pp. 240 (damages), 296 
 (evidence). 
 
 V. , 36 N. Y. Supr. 279 ; p. 79 (at- 
 torney). 
 
 V. Weed, 5 Hun, 350 ; pp. 65 (appeal), 
 
 666 (sale). 
 
 QuiNTARD, Richard v. 
 
TABLE OF CASES. 
 
 869 
 
 R. 
 
 Racey, Phelps v. 
 
 Rachow, Kekn v. 
 
 Raddb, Butterfield v. 
 
 Rae, Matter of, 5 Hun, 455 ; p. 518 (N. 
 
 Y. city). 
 V. Mayor, etc. of N. Y. City, 37 N. 
 
 Y. Supr. 192 ; pp. 148 (constitutional 
 
 law), 391 (injunction). 
 Ry. Pass. Assu. Co., Champlin v. 
 
 , northrup v. 
 
 , Shader v. 
 
 Railway Pass Ins. Co. of Hartford, 
 
 Rhodes v. 
 Rainsford v. Royal Ins. Co., 83 N. Y. 
 
 Supr. 453 ; p. 406 (insurance). 
 Ramalay v. Leland, 43 N. Y. 539 ; p. 393 
 
 (innkeeper). 
 Ramsey v. Gould, 4 Lans. 476; pp. 51 (ap- 
 peal), 625 (practice). 
 
 , Erie Railway Co. v. 
 
 Rand, Moore v. 
 
 Randall v. Dusenbury, 39 iV. Y. Supr. 
 
 174 ; pp. 74 (assignment for benefit), 
 
 275 (estoppel), 719 (trusts). 
 
 V. Elwell, 52 N. Y. 521 ; p. 703 (taxes). 
 
 , Hallock v. 
 
 -. , Livingston v. 
 
 , MOSHER V. 
 
 Randolph v. Loughlin, 48 N. Y. 456 ; pp. 
 
 42 (appeal), 295 (evidence). 
 ■ V. Peck, 1 Hun, 138 ; pp. 62 (appeal), 
 
 91 (biUs and notes), 537 (partnership). 
 Ranger, Beebe v. 
 Rann v. Home Ins. Co., 59 N. Y. 387 ; p. 
 
 400 (insurance). 
 Rannie, Clarke v. 
 Raplee, Wilkin v. 
 
 Rapp v. Williams, 1 Hun, 716 ; p. 390 (inj.) 
 Raphaelsky v. Lynch, 43 How. 157; 12 Abb. 
 
 JSr. S. 224 ; 34 JV. Y. Supr. 31 ; pp. 504, 
 
 506 (new trial). 
 Rappleye v. Adeb, 65 Barb. 589 ; p. 660 
 
 (sale). 
 Rath, Bateman v. 
 Rathbone v. Hooney, 58 N. Y. 463 ; pp. 
 
 274 (estoppel), 289 (evid.), 470 (mort.) 
 Rathbdn v. Ingersoll, 34 N. Y. Supr. 
 
 211 ; pp. 52 (appeal), 754 (witness). 
 V. Markham, 43 How. 271 ; p. 560 
 
 (pleading). 
 V. N. Y. Cent. Ry. Co., 50 N. Y. 656 ; 
 
 p. 438 (limitation of action). 
 Rauch, Dbeyeb v. 
 
 Raithb, McMahon v. 
 
 Rawdon, Austin v. 
 
 Rawson v. Holland, 47 How. 292 ; affd. 59 
 
 iV. Y. 611 ; p. 121 (carrier) . 
 
 , People ex rel. Stetzer v. 
 
 V. Penn. R. R. Co., 48 N. Y. 212; affg. 
 
 2 Abb. N. S. 220. See Digest, vols. i. 
 
 and ii. 
 Ray v. Adams, 4 Hun, 332 ; p. 473 (mort.) 
 
 V. Rawley, 1 Hun, 614; p. 286 (evid.) 
 
 V. Smith, 2 Hun, 597 ; p. 61 (appeal). 
 
 , Wait v. 
 
 Raymond, Andrews v. 
 
 r. Hanford, 3 Hun, 612; p. 235 (dam.) 
 
 , House v. 
 
 Raynob v. Hoagland, 39 N. Y. Supr. 11 ; 
 
 pp. 92 (bills and notes), 581, 596 (prac.) 
 
 V. Page, 2 Hun, 652 ; p. 305 (evid.) 
 
 V. Selmes, 52 N. Y. 579 ; reversing 7 
 
 Lans. 440 ; p. 481 (mortgage). 
 V. TiMERSON, 54 N. Y. 639 ; affg. 57 
 
 Barb. 517 ; 46 id. 518. See Digest, vol. 
 
 iv. 
 Rea, Hackettstown Bank v. 
 
 V. Minklbr, 5 Lans. 196 ; p. 208 (cov.) 
 
 Read, Allis v. 
 
 V. Decker, 5 Hun, 646 ; pp. 170 (con- 
 tract), 554 (pleading). 
 
 , Graham v. 
 
 V. Lambert, 10 Abb. N. S. 428 ; pp. 17 
 
 (action), 111 (broker), 236 (damages), 
 
 547 (pleading), 580 (practice). 
 
 , Mitchell v. 
 
 , Pickersgill v. 
 
 V. Pres. etc. of Del. & Hud. Canal 
 
 Co., 49 How. 652 ; revg. 2 Lans. 13 ; pp. 
 
 235 (damages), 668 (sale). 
 V. Smith, 1 Hun, 263; pp. 294, 308 
 
 (evidence). 
 V. Waterhouse, 52 N. Y. 587; revg. 
 
 12 Abb. N. S. 255; 35 N. Y. Supr. 78; 
 
 pp. 195, 204 (costs). 
 Reading v. Gray, 37 N. Y. Supr. 79; pp. 
 
 163 (contract), 207 (covt.), 465 (money 
 
 had, etc.), 503 (new trial). 
 Rbagle, People v. 
 Real Estate Trust Co. v. Seagreave, 
 
 49 How. 489; p. 278 (estoppel). 
 Reals, Globe Mut. Life Ins. Co. v. 
 Reckhow v. Schanck, 43 N. Y. 448; pp. 
 
 266 (ejectment), 429 (landlord and ten- 
 ant). 
 Recknagle, Stokes v. 
 
870 
 
 TABLE OF CASES. 
 
 Rector, etc. of St. Alban's Church, 
 
 Constant v. 
 Rector, etc. op Trinity Church v. Hig- 
 
 GiNa, 48 iV. Y. 532; revg. 4 Rob. 372; 
 
 pp. 237 (damages), 428 (land, and ten.) 
 Rkdfield, Gray v. 
 V. Holland Purchase Ins. Co., 56 
 
 N. Y. 354; pp. 3 (accord and sat.), 44 
 
 (appeal), 396 (insurance). 
 Rkdington, Oilman v. 
 Redlich v. Doll, 54 N. Y. 234; p. 95 (bills 
 
 and notes). 
 Redmond v. Enpield Manufg. Co., 13 
 
 Abb. N. S. 332; pp. 350 (foreign cor- 
 poration), 420 (jurisdiction). 
 V. Hoge, 3 Hun, 171 ; pp. 350 (foreign 
 
 corporation), 420 (jurisdiction). 
 V. Liverpool, N. Y. & Phila. Steam- 
 ship Co., 46 N. Y. 578; revg. 56 Barb. 
 
 820; pp. 45 (appeal), 123 (carrier). 
 Reed & Barlow v. Pease, 5 Hun, 564; p. 
 
 335 (excise). 
 Reed, Eldridge v. 
 i;. Gannon, 50 N. Y. 345^ revg. 8 Dcdy, 
 
 414; pp. 103 [bona fide purchaser), 377 
 
 (husband and wife). 
 I). Keese, 37 N. Y. Supr. 269; affirmed 
 
 60 N. Y. 616; pp. 191 (corporation), 287 
 
 (evidence). 
 V. New York Central R. R. Co., 45 
 
 N. Y. 574; revg. 56 Barb. 493; pp. 815, 
 
 332 (evidence). 
 V. Reed, 52 N. Y. 651 ; pp. 377 (husband 
 
 and wife), 696 (surrogate). 
 
 , VosE V. 
 
 Rbede v. Schneider, 47 How. 379 ; 1 Hun, 
 
 121 ; p. 681 (specific performance). 
 t!. United States Ex. Co. , 48 N. Y. 
 
 462; pp. 122 (carrier), 300 (evidence). 
 Reeves v. Denicke, 12 Abb. N. S. 92 ; pp. 
 
 388 (injunction), 712 (trade-mark). 
 
 , Johnson v. 
 
 V. Kimball, 63 Barb. 120; pp. 104 
 
 (bona fide purch.), 679 (specific perf.) 
 Reformed Ch. of Gallupville v. School- 
 craft, 5 Lans. 206 ; pp. 266 (eject- 
 ment), 653 (religious corporation). 
 
 OF Gansevoort, Van Buren v. 
 
 Reformed Prot. Dutch Church of New 
 
 Prospect, Connitt v. 
 Reid v. Bank of N. Y. Natl. Banking 
 
 Asso., 47 How. 358; pp. 555 (pleading), 
 
 628 (principal and agent). 
 
 , Halsey v. 
 
 , Harsha v. 
 
 V. Martin, 4 Hun, 590; p. 336 (execu.) 
 
 Rbilly, Schafer v. 
 
 , schaughnessy v. 
 
 Reimer, Osbrby v. 
 
 Reinecke u. Flecke, 35 N. Y. Supr. 491; 
 
 pp. 296 (evidence), 337 (execution). 
 Rein, In matter of, 49 How. 301; p. 90 
 
 (bankruptcy). 
 Rbinmiller v. Skidmore, 7 Lans. 161 ; pp. 
 
 137 (claim and delivery), 337 (execution), 
 
 423 (justice court). 
 
 V. , 59 JSr. Y. 661; p. 49 (appeal). 
 
 Remington, Baker v. 
 V. Palmer, 1 Hun, 619 ; p. 628 (prin- 
 cipal and agent). 
 
 , Taylor v. 
 
 Remington Sew. Mach. Co., Wireman v. 
 Remsen, Matter of, 29 Barb. 317; p. 518 
 
 (N. Y. city.) 
 V. People, 48 N.Y.6; p. 221 (criminal 
 
 law). 
 Renois, Chrysler v. 
 Rensselaer and Saratoga R. R. Co., 
 
 Brady v. 
 V. Davis, 43 N. Y. 137; pp. 34 (app'l.), 
 
 641 (R. R. Co.), 686 (statutes). 
 V. , 55 N. Y. 145; pp. 197, 202 
 
 (costs). 
 
 , Pelton v. 
 
 , Phillips v. 
 
 Renton v. Kelly, 45 N. Y. 638 ; affirming 
 
 46 Barb. 586. See Digest, vol. i. 
 Repplier v. Baxter, 87 N. Y. Supr. 105; 
 
 p. 581 (practice). 
 
 Requa v. City of Rochester, 45 N. Y. 
 129 ; pp. 331 (evidence), 871 (highway), 
 485 (municipal corporation), 597 (prac- 
 tice). 
 
 V. Collins, 51 N. Y. 144; p. 96 (biUs 
 
 and notes). 
 
 Rbsing, Natl. State Bank op Troy v. 
 
 Resolute F. Ins. Co., Norwood v. 
 
 — , Pindar v. 
 
 Renscher v. Klein, 85 N. Y. 5^ujt)r.446;pp. 
 55 (appeal), 138 (chattel mortgage). 
 
 Reville, Fullager v. 
 
 Reymert, West Point Iron Co. v. 
 
 Reynolds, Allen v. 
 
 , Beach v. 
 
 V. Commerce Fire Ins. Co. of N. Y., 
 
 47 N. Y. 597; p. 397 (insurance). 
 , Davis v. 
 
 — , Mandeville v. 
 
 — V. N. Y. Centl. and Hud. Riv. R. R. 
 Co., 58 N. Y. 248 ; p. 498 (negligence). 
 
 — V. Park, 5 Lans. 149; pp. 386 (injunc- 
 tion), 473 (mortgage). 
 
TABLE OF CASES. 
 
 871 
 
 V. , 53 N. Y. 36 ; pp. 416 (judgment), 
 
 476 (mortgage). 
 V. People, 41 How. 179; pp. 219, 221 
 
 (criminal law). 
 
 V. Root, 62 Barb. 250; p. 740 (will.) 
 
 , Spehry v. 
 
 Rexford v. Marquis, 7 Lam. 249; pp. 249 
 
 (deed), 265 (easement), 310 (evidence), 
 
 588 (practice). 
 V. Rexford, 7 Lans. 6; pp. 243,245 
 
 (deed), 270 (equity). 
 Rhodes v. Dymock, 33 N. Y. Supr. 141 ; pp. 
 
 26 (action), 580 (practice), 732 (waiver). 
 V. Ry. Pass. Ins. Co. of Hartford, 5 
 
 Lans. 71 ; p. 409, 410 (insurance). 
 V. Utica, Ithaca, etc., R. R. Co., 5 
 
 Hun, 844; p. 644 (R. R. Co.) 
 Rice, Corey v. 
 V. Davis, 7 Lans. 893 ; pp. 282, 290, 300 
 
 (evidence), 840 (execution). 
 V. Ehle, 46 How. 153; 65 Barb. 185; 
 
 reversed 55 N. Y. 518; pp. 572, 624 
 
 (practice). 
 
 , Greest v. 
 
 , Halterlinb v. 
 
 , Lapham v. 
 
 u. Manley, 2 fluji, 492;pp. 12 (action), 
 
 235 (damages). 
 Rich v. Niagara Co. Savings Bank, 3 
 
 Hun, 481; pp. 173 (contract), 441 (lim- 
 itation of action), 731 (waiver). 
 Richard v. Quintard, 51 N. Y. 636; p. 178 
 
 (contract). 
 V. Wellington, 5 Hun, 181 ; p. 183 
 
 (conversion). 
 Richards v. Bloom, 5 Hun, 182; p. 604 
 
 (practice) . 
 
 , Bowery Savings Bank v. 
 
 , Britton v. 
 
 , Johnson v. 
 
 V. JuDD, 15 Abb. N. S., 184; p. 577 
 
 (practice). 
 V. Millard, 56 N. Y. 574 ; pp. 309, 
 
 318 (evidence). 
 Richardson, Bloomfield and Rochester 
 
 Nat. Gas Co. v. 
 V. Carpenter, 46 N. Y. 660 ; revg. 2 
 
 Sweeny, 360 ; pp. 47 (appeal), 811 (evi- 
 dence) . 
 V. Grand ALL, 48 N. Y. 348 ; affg. 47 
 
 Barb. 335. See Digest, vols. i. and ii. 
 
 , Kellar v. 
 
 V. Kropf, 47 How. 286 ; afld. 60 N. Y. 
 
 634 ; p. 54 (appeal). 
 V. New York Cent. R. R. Co., 45 N.Y. 
 
 846 ; pp. 490 (negl.), 646 (R. R. Co.) 
 
 V. PuLVER, 63 Barb. 67 ; pp. 243 (deed), 
 
 266 (ejectment). 
 
 , Simmons v. 
 
 , Village of Lancaster v. 
 
 V. Virtue, 2 Hun, 208 ; p. 444 (mali- 
 cious prosecution). 
 
 Richie, Walrath v. 
 
 Richmond County Gas Light Co. o. 
 Town of Middletown, 59 N. Y. 228 ; 
 pp. 448 (mand.), 482 (mun. corp.), 684 
 (statutes). 
 
 Richmond, Coulter v. 
 
 RiCHTER V. Wise, 8 Hun, 398; p. 617 (pract.) 
 
 Richtmyer, Mott v. 
 
 Rickard's Case, 15 Abb. N.S.Q; pp. 367, 
 368 (guardian and ward). 
 
 RiCKETTs I'. Baltimore and Ohio R. R. 
 Co., 4 Lans. 446 ; 61 Barb. 18 ; p. 118 
 (carrier). 
 
 Rider, Blott i\ 
 
 . V. Pell, 51 N. Y. 669 ; p. 6 (action). 
 
 V. Stryker, 2 Hun, 115 ; pp. 149 (con- 
 stitutional law), 688 (statutes). 
 
 RiGHTMiRB V. Kimball, 2 Hun, 598 ; p. 20 
 (action). 
 
 RiGNBY V. White, 4 Daly, 400 ; p. 673 
 (ships, etc.) 
 
 RiKER V. Mayor, etc. of New York, 3 
 Daly, 174 ; p. 520 (N. Y. city). 
 
 Riley v. Brown, 44 How. 429 ; 14 Abb. N. 
 S. 290, n.; p. 626 (practice). 
 
 V. City of Brooklyn, 46 N. Y. 444 ; 
 
 revg. 56 Barb. 559 ; pp. 159 (contract), 
 483 (municipal corporation). 
 
 V. Watson, 3 Hun, 568 ; p. 459 (meohs. 
 
 lien). 
 
 Rillet v. Carlier, 11 Abb. N. S. 136 ; 61 
 Barb. 485 ; pp. 388 (injunction), 712 (trade- 
 mark). 
 
 RiNALDo, Ruff v. 
 
 RiNDGE V. Baker, 57 N. Y. 209 ; pp. 6 (ac- 
 tion), 589 (party wall). 
 
 RiNN V. AsTOE Fire Ins. Co., 59 N. Y. 148; 
 p. 194 (corporation). 
 
 Ripley, Glenville Woollen Co. v. 
 
 V. Cochran, 10 Abb. N. S. 52 ; p. 627 
 
 (principal and agent). 
 
 V. Hazelton, 3 Daly, 329 ; pp. 177 (eon- 
 tract), 353 (former adjudication). 
 
 Riper v. Poppenhausen, 43 N. Y. 68 ; pp. 
 199 (costs), 537 (partnership). 
 
 RiSLEY V. Indianapolis, B. and Western 
 Ry. Co., 1 Hun, 202; p. 187 (corporar 
 tion). 
 
 V. Phcenix Bank of New Yoke, 2 
 
 Hun, 349 ; p. 82 (amendment). 
 
872 
 
 TABLE OF CASES. 
 
 V. Smith, 39 N. Y. Supr. 137 ; pp. 74 
 
 (assigmneiit), 141 (consideration). 
 Ritchie, Baciiia v. 
 
 RiTCHINGS, WaLDEON V. 
 
 RiTBNHOUSE V. INDEPENDENT LiNB OF 
 
 Tblbgraph, 44 JSr. r.26S; affg. 1 Daly, 
 474. See Digest, vol. iii. 
 
 RiTTER V. Krbkeler, 44 How. 445 ; p. 54 (ap- 
 peal). 
 
 ■ V. Phillips, 34 N. Y. Supr. 289 ; 35 
 
 id. 388; pp. 504, 505 (new trial). 
 
 V. Phillips, 53 N. Y. 586 ; pp. 274 
 
 (estoppel), 413 (interest). 
 
 ThAULE I". 
 
 V. Worth, 58 N. Y. 627; pp. 243 (deed), 
 
 250 (defense), 267 (ejectment), 704 
 
 (taxes). 
 RiVENBURGH V. Henness, 4 Lans. 208 ; pp. 
 
 348 (false imprisonment), 421 (justice of 
 
 peace). 
 Roach v. Flushing and N. Side R. R. Co., 
 
 58 N. Y. 626 ; p. 591 (practice). 
 
 ROBBINS, El WELL V. 
 
 , Parmer v. 
 
 V. Ferris, 5 Hun, 286; p. 51 (appeal). 
 
 , Hall v. 
 
 , OSBOEN V. 
 
 , Stackpole v. 
 
 Roberts, Arthur v. 
 
 , Bank op Auburn v. 
 
 V. Berdbll, 15 Abh. N. S. 177 ; 52 N. 
 
 Y. 644; affirming 61 Barb. 37; pp. 181 
 
 (conversion), 440 (lim. of action), 541 
 
 (payment). 
 
 V. Bower, 5 Hun, 558 ; p. 693 (Sunday). 
 
 V. Dillon, 3 Daly, 50; p. 660 (sale). 
 
 , Favill v. 
 
 V. Fisher, 43 N. Y. 159; reversing 53 
 
 Barb. 69 ; p. 540 (payment). 
 V. , 65 Barb. 303; p. 540 (payment). 
 
 , GiLLBTT V. 
 
 , Gouge v. 
 
 , Hunt v. 
 
 V. Johnson, 58 N. Y. 613 ; affirming 
 
 37 N. Y. Supr. 157; pp. 23 (action), 58 
 (appeal), 325, 331 (evidence), 547 (plead- 
 ing), 585 (practice). 
 
 , Newell v. 
 
 , o'sullivan v. 
 
 V. Prosser, 53 N. Y. 260; reversing 4 
 
 Lan.1. .369; p. 336 (execution). 
 V. Roberts, 55 N. Y. 275; affirming 7 
 
 Lans. 53; p. 264 (easement). 
 
 , Ross 0. 
 
 V. White, 87 N. Y. Supr. 168 ; p. 424 
 
 (laches). I 
 
 V. , 39 N. Y. Supr. 272; p. 606 
 
 (practice). 
 
 Robertson, Arnold v. 
 
 V. Atlantic Mutual Ins. Co,, 30 
 
 N. Y. Supr. 442; p. 412 (insurance).^ 
 
 , Hayes v. 
 
 , HeERMAN 1!. 
 
 , Heye v. 
 
 V. Hillman, 3 Hun, 244; p. 751 (will). 
 
 , Jenks v. 
 
 , Fenton v. 
 
 Robinson, Matter of, 43 How. 25; p. 90 
 (bankruptcy). 
 
 V. Kalbflbisch. 2 Hun, 683; p. 62 (ap- 
 peal). 
 
 V. McMannus, 4 Lans. 380; pp. 321, 
 
 333 (evidence), 579 (practice), 692 (sum. 
 proceedings). 
 
 V. N. Y. Central & Hudson River 
 
 R. R. Co., 65 Barb. 146; pp. 298 (evid.), 
 490, 495 (negligence). 
 
 V. Pesant, 53 N. Y. 419 ; p. 89 (bank- 
 ruptcy). 
 
 V. Phillips, 65 Barb. 418; affirmed 56 
 
 N. Y. 634; pp. 29 (adverse possession), 
 246 (deed). 
 
 v. Robinson, 5 Lans. 165; pp. 844 
 
 (executors and administrators), 441 (lim- 
 itation of action), 741 (will). 
 
 V. Weil, 45 N. Y. 810; p. 310 (evid.), 
 
 595 (practice). 
 
 Roche, Knapp v. 
 
 Rochester, City of, v. Bronson, 41 How. 
 78 ; p. 194 (corporation). 
 
 , Butler v. 
 
 , Butts v. 
 
 , Fisher v. ' 
 
 , Hassan v. 
 
 V. OsBORN, 5 Lans. 37; p. 657 (Roch- 
 ester). 
 
 , People ex rel. Hayden v. 
 
 , Rbqua v. 
 
 Rochester City Bank, Bush v. 
 
 Rochester, Town of, v. Davis, 44 How. 
 95 ; p. 621 (practice). 
 
 V. Davis, 12 Abb. N. S. 270; pp. 205 
 
 (county judge), 384 (injunction). 
 
 Rochester and Genesee Val. R. R. Co. 
 V. Clarke, 60 Barb. 234 ; pp. 354 
 (former adjudication), 525 (officer, 
 etc.) 
 
 Rochester, Nunda & Penn. R. R. Co. v. 
 CuYLER, 7 Lans. 431 ; p. 711 (towns). 
 
 Rochester Water Works Co. v. Wood, 
 41 How. 58 ; 60 Barb. 137; pp. 65 (ap- 
 peal), 150 (constitutional law). 
 
TABLE OF CASES. 
 
 873 
 
 EocKE V. Meiher, 34 N. Y. Supr. 158; p. 
 583 (practice). 
 
 , pollaed v. 
 
 , Wilson v. 
 
 ROCKEFELLEK, SmITH V. 
 ROOKFELLER, FrTER V. 
 
 RocKFORD, R. I. & St. L. R. R. Co. u.Boody, 
 
 56 N. Y. 456; pp. 614, 618 (practice). 
 
 , Clews v. 
 
 Rockwell v. Brown, 54 N. Y. 210 ; revg. 42 
 
 How. 226 ; 11 Abb. N. S. 400; 33 N. Y. 
 
 Supr. 380; p. 267 (ejectment). 
 
 V. Geery, 4 Hun, 606 ; p. 371 (heirs). 
 
 V. Lawrence, 1 Hun, 471; p. 302 
 
 (evidence). 
 V. Merwin, 45 JV. Y. 166; affirming 8 
 
 Abb. N. S. 330; 1 Sweeny, 454; p. 544 
 
 (pleading.). 
 V. Third Av. R. R. Co., 64 Barb. 438; 
 
 p. 490 (negligence). 
 V. Ttjnnicliff, 62 Barh. 408 ; p. 299 
 
 (evidence). 
 RoDH, Alktjsd. 
 RoDEEMTJND V. Clark, 46 N. Y. 354 ; p. 16 
 
 (actions). 
 RoDBRiGAs V. East Riv. Savings Inst., 48 
 
 How. 166 ; pp. 341 (executors and ad- 
 ministrators), 541 (paymt.), 696 (surro.) 
 Rodgers v. Bonner, 45 iV. Y. 379 ; affg. 55 
 
 Barb. 9. See Digest, vol. iv. 
 Roe v. Hanson, 5 Lans. 304; p. 328 (evid.), 
 
 424 (justice court). 
 
 , Ingersoll v. 
 
 RoEDiGER V. Simmons, 14 Abb. N. S. 256; 
 
 p. 550 (pleading). 
 RoEHNER V. Knickerbocker L. Ins. Co., 
 
 4 Daly, 512; pp. 95 (bills and notes), 406 
 
 (insurance). 
 RoELKER V. Great Western Ins. Co., 2 
 
 Sweeny, 275; pp. 292, 300, 331 (evidence), 
 
 410 (insurance). 
 RoESSLB, Rosenplaentbr v. 
 
 ROESSNER, LeSHER V. 
 
 Rogers u.Durant, 56 iV. Y. 669; p. 39 (ap'l.) 
 
 , gurnsey v. 
 
 , Lewis v. 
 
 V. Lyon, 64 Barb. 373; p. 757 (witness). 
 
 , People v. 
 
 V. Schmersahl, 4 Hun, 623; p. 54 
 
 (appeal). 
 
 V. SiNSHEiMER, 50 N. Y. 646 ; pp. 263 
 
 (easement), 268 (ejectment). 
 
 V. Smith, 47 iV. F.324; p. 162 (con- 
 tract). 
 
 V. , 5 Hun, 475; pp. 146, 148 (con- 
 stitutional law). 
 
 V. Wheeler, 52 JV. Y. 262 ; affirming 6 
 
 Lans. 420 ; pp. 61 (appeal), 121 (car- 
 rier), 604 (practice). 
 
 RoGGEN V. Avery, 63 Barb. 65; pp. 245 
 (deed), 266 (ejectment). 
 
 ROLLAND, FrECKING V. 
 
 RoLLiN V. Cross, 45 N. Y. 766; p. 460 (me- 
 chanic's lien). 
 Rollwagen, In matter op, 48 How. 103; 
 
 p. 739 (will). 
 
 , , 48 How. 289; p. 740 (will). 
 
 V. Rollwagen, 3 Hun, 121; pp. 324 
 
 (evidence), 739, 740 (will). 
 RoMAiN V. Garth, 49 How. 61; 3 Hun, 214; 
 
 pp. 594 (practice), 651 (release). 
 RoMAiNE V. Cromwell, 11 Abb. N. S. 430; 
 
 p. 574 (practice). 
 
 , Lough v. 
 
 Roman Catholic Soc'y. op Newport and 
 
 Schuyler, In matter of, 4 Lans. 14; 
 
 pp. 30 (adv. poss.), 717 (trusts). 
 Rome, City of, Crill v. 
 Rome & Oswego Road Co. v. Stone, 62 
 
 Barb.mi; p. 707 (tolls). 
 Rome, Wat. & Ogdens. R. R. Co., Ander- 
 son V. 
 
 , City Bank v. 
 
 , Powers v. 
 
 , Webb v. 
 
 RoMBRTZE V. East River Nat. Bank, 2 
 
 Sweeny, 82; revd. 49 ^. Y. 577; pp. 
 
 584. 585 (practice). 
 Ronalds v. Mechs. Nat. Bank of N. Y., 
 
 37 N. Y. Supr. 208; pp. 56 (appeal), 501 
 
 (practice). 
 EONDOUT & Oswego R. R. Co., In Matter 
 
 of, v. Deyo, 5 Lans. 298; pp. 641, 642 
 
 (R. R. Co.) 
 
 , MiDDLETOWN, ToWN OF, V. 
 
 Roop, Erie County Savings Bank v. 
 
 Root, Beard v. 
 
 V. Brown, 4 Hun, 797; pp. 311, 312 
 
 (evidence). 
 V. Gt. West'n. Ry. Co., 55 N. Y. 636 ; 
 
 affg. QSBarb. 619; pp. 327 (evidence), 
 
 350 (foreign corp.), 730 (waiver). 
 V. , 45 N. Y. 524 ; reversing 2 Lans. 
 
 199; p. 120 (carrier). 
 
 , Peck v. 
 
 , Reynolds v. 
 
 , Taylor v. 
 
 Rorke v. Thomas, 56 JST. Y. 559 ; p. 191 
 
 (corporation). 
 Rose v. Bost. & Alb. R. R. Co., 58 N. Y. 
 
 217 ; p. 645 (R. R. Co.) 
 , Chapman v. 
 
874 
 
 TABLE OF CASES. 
 
 , Lewis v. 
 
 V. Post, 56 N. Y. 603 ; p. 623 (pract.) 
 
 Rosenberg, In Matter of, 10 Ahb. N. S 
 450; p. 393 (insolvent debtor). 
 
 , HlLLYEB V. 
 
 , O'DONNELL V. 
 
 RosENKRANS V. PEOPLE, 3 Hun, 287; pp. 
 
 212, 215, 216 (criminal law). 
 
 V. White, 7 Lans. 486; p. 531 (part.) 
 
 ROSENPLAENTER V. RoESSLE, 54 N. Y. 262 ; 
 
 p. 82 (bailment). 
 
 ROSENSTOCK, GrEENTREE 0. 
 
 RoSENZWEiG V. People, 6 Lans. 462; 63 
 
 Barh. 634; p. 224 (criminal law). 
 RosEY, In Matter op, 43 How. 471 ; p. 90 
 
 (bankruptcy). 
 Ross v. Akerman, 46 N. Y. 210 ; pp. 310, 
 
 315 (evidence). 
 
 V. Colby, 3 Run, 546 ; p. 65 (appeal). 
 
 V. Combes, 37 -ZV. Y. Supr. 289; pp. 52 
 
 (appeal), 601 (practice). 
 
 , Holt, v. 
 
 , Loughran v. 
 
 V. Mather, 51 N. Y. 108; reversing 47 
 
 Barh. 582 ; pp. 355 (fraud), 566 (plead.) 
 
 , McGinn v. 
 
 ■ , moncrief v. 
 
 V. N. Y. Cent, and Hud. Riv. R. R. 
 
 Co., 5 Hun, 488; p. 456 (mast, and ser.) 
 V. Roberts, 2 Hun, 90; p. 718 (trusts), 
 
 748 (will). _ 
 
 , Stanclipf v. 
 
 V. Whitefield, 56 N. Y. 640; afEg. 36 
 
 N. Y. Supr. 50; p. 536 (partnership). 
 RosswoG, Oberlander v. 
 Rounds v. Del., Lack, and Westn. R. R. 
 
 Co., 3 Hun, 329 ; pp. 444 (malice), 457 
 
 (master and servant). 
 Rouse, Marsh v. 
 
 , Schoonmakbb f, 
 
 Rousseau v. City of Troy, 49 How. 492; 
 
 pp. 114 (burial ground), 390 (injunction). 
 Rousso V. Vontrin, 41 How. 8; pp. 200 
 
 (costs), 506 (new trial). 
 Rowan v. Hyatt, 45 N. Y. 188; p. 632 
 
 (principal and agent). 
 RowE V. Bank of Auburn, 51 N. Y. 674 ; 
 
 p. 464 (money bad, etc.) 
 
 , Fuller v. 
 
 V. Smith, 45 N. Y. 230; pp. 25 (action), 
 
 382 (husband and wife). 
 B. Stevens, 53 N. Y. 621; affg. 35 N. 
 
 Y. Supr. 189 ; p. 109 (broker). 
 V. , 44 How. 10; 12 Mb. N. S. 389; 
 
 34 N. Y. Supr. 436; pp. 504 (new trial), 
 
 732 (waiver). 
 
 Rowell, Elderkin v. 
 
 Rowland v. Hhgeman, 59 N. Y. 643 ; affg. 
 
 1 Hun, 491; p. 61 (appeal). 
 
 , Henshaw v. 
 
 RowLES r. Hoare, 61 Barb. 266; pp. 609, 
 
 620 (practice). 
 Rowley, Ray v. 
 V. Woodruff, 50 N. Y. 700; p. 10 
 
 (action). * 
 
 Roys v. Willet, 15 Abb. N. S. 136, n.; p. 
 
 199 (costs). 
 Royal Ins. Co., Excel. Fire Ins. Co., v. 
 
 , Fried v. 
 
 , Rainsford v. 
 
 ROZENBERG, TALCOTT V. 
 
 RuBBER'Tip Pencil Co., Hovey v. 
 
 Ruck, Loomis v. 
 
 Ruckham, Wheeler v. 
 
 RuDOLPHY V. Fuchs, 44 How. 155 ; p. 586 
 (practice). 
 
 Rue W.Perry, 41 How. ,385; 6S Barb. 40; 
 pp. 66 (appeal), 422 (just, court). 
 
 Ruff v. Rinaldo, 55 N. Y. 664; pp. 233 
 (damages), 734 (waiver). 
 
 RuGG, Leslie v. 
 
 V. Spencer, 59 Barb. 383; pp. 158 (con- 
 tempt), 284 (evidence). 
 
 RuGGLES V. Chapman, 59 N. Y. 163; afEg. 
 1 fl«n,.324; p. 895 (insurance). 
 
 , Hall v. 
 
 , Hull v. 
 
 RuHL u. Phillips, 48 N. Y. 125; revg. 2 
 Daly, 45; p. 360 (frauds, statute of). 
 
 RuLOFP V. People, 11 Abb. N. S. 245; 45 N. 
 Y. 213; afEg. 5 Lans. 261 ; pp. 213, 218, 
 219, 220, 221, 226 (criminal law). 
 
 RUMSEY, BaNFIELD V. 
 
 Russell i;. Duflon, 4 Lans. 399; pp. 10 
 (action), 54 (appeal), 413 (interest), 476 
 (mortgage). 
 
 , Crawford v. 
 
 , Fitch v. 
 
 V. Freer, 56 N. Y. 67; p. 105 (bond). 
 
 Russell v. Metropolitan Ins. Co., 51 N. 
 Y. 650; p. 331 (evidence). 
 
 V. Miner, 5 Lans. 587 ; 61 Barb. 534 ; 
 
 p." 80 (auction). 
 
 V. St. Nicholas Fire Ins. Co., 51 N. 
 
 Y. 643; pp. 331 (evidence), 584 (pract.) 
 
 Russell & Erwin Manup. Co. v. Car- 
 penter, 5 Hun, 162 ; p. 94 (bills and 
 notes), 253 (defense). 
 
 Russell Manp. Co. v. New Haven Steam- 
 boat Co., 50 JSr. Y. 121 ; 52 N. Y. 657 ; 
 pp. 120 (carrier), 501 (negligence), 590 
 (practice). 
 
TABLE OF CASES. 
 
 876 
 
 Rutherford v. Graham, 4 Hun, 796 ; p. 
 261 (dower). 
 
 ' V. Holmes, 5 Hun, 317 ; pp. 156 (jcon- 
 
 tempt), 422 (just, court). 
 
 Ryak, Dennis v. 
 
 V. Hudson Riv. R. R. Co., 33 N. Y. 
 
 Supr. 137 ; pp. 298 (evidence), 457 (mas- 
 ter and servant). 
 
 V. Lewis, 3 Hun, 429 ; pp. 238 (dam- 
 ages), 423 (justice court). 
 
 , Smith v. 
 
 V. Thompson, 38 N. Y. Supr. 133 ; p. 
 
 495 (negligence). 
 
 V. Ward, 48 N. Y. 204; pp. 279 (estop- 
 pel), 541 (payment). 
 
 V. Wavle, 4 Hun, 804 ; p. 64 (appeal). 
 
 Ryckmanu. Gillis, 57 \A?'. Y. 68; revg. 6 
 Lans. 79; pp. 249 (deed), 264 (easement). 
 
 Ryder, Learned v. 
 
 Ryer v. Wiberly, 4 Hun, 682 ; p. I65 (cont.) 
 
 Rynders v. Crane, 3 Daly, 339; pp. 97 
 (bills and notes), 377 (husb. and wife). 
 
 s. 
 
 Sabine, Nims v. 
 
 Sacchi, In matter of, 43 How. 250 ; pp. 
 85, 87 (bankruptcy). 
 
 , aspinwall v. 
 
 Sackett, Fitzhugh v. 
 
 , Hawley v. 
 
 Sackett Street, In re, 4 Hun, 92 ; p. 486 
 (municipal corporation). 
 
 Safe Deposit Co., Morey v. 
 
 Sage, Dunham «. 
 
 , Fonda v. 
 
 , Gilbert v. 
 
 V. VoLKENiNG, 46 N. Y. 448 ; p. 48 
 
 (appeal). 
 
 , Welch v. 
 
 Sager v. Blain, 44 N. Y. 455 ; pp., 137 
 (claim and del.), 354 (former adjudica- 
 tion), 732 (waiver). 
 
 Salem, Murphy v. 
 
 , Mutual Life Ins. Co. of N. Y. v. 
 
 Salisbury v. Morss, 7 Lans. 359 ; pp. 438 
 (limitation of actions), 747 (wiU). 
 
 Salomon, Am. Silk Works v. 
 
 V. Van Praag, 48 How. 338 ; pp. 18 
 
 (actions), 58 (appeal), 296 (evidence), 
 
 588 (practice). 
 
 , Ynguanzo v. 
 
 Salt Co. of Onondaga, Morris Run 
 
 Coal Co. v. 
 Salter, Lane v. 
 V. U. & B. R. R. Co., 59 N. Y. 631 ; pp. 
 
 591, 592 (practice). 
 Salters v. Del. and Hudson Canal Co., 
 
 3 Hun, 338 ; pp. 332 (evidence), 456 
 
 (master and servant), 489 (negligence). 
 Salt Springs Natl. Bank v. Burton, 58 
 
 N. Y. 431 ; p. 95 (bills and notes). 
 Bank v. Syracuse Savings Inst., 62 
 
 Barb. 101 ; pp. 94 (bills and notes), 136 
 
 (checks), ,466 (money paid). 
 Nat. Bank v. Wheeler, 48 N. Y. 492; 
 
 p. 182 (conversion). 
 Saltzman, Decker v. 
 Sammis, People v. 
 Sammon v. N. Y. & Hudson Riv. R. R. Co., 
 
 38 N. Y. Supr. 414, affd. 49 How. 348; 
 
 pp.301 (evidence), 492 (negligence), 579 
 
 (practice). 
 Sampson v. Buffalo, N. Y. & Phil. R. R. 
 
 Co., 2 Hun, 512 ; p. 289 (evidence). 
 
 , People «. 
 
 V. Wood, 10 Abb. N. S. 223, «. ; p. 390 
 
 (injunction). 
 Samuels v. Bryant, 14 Abb. N. S. 442 ; p. 
 
 605 (practice). 
 
 V. Bryant, 47 N. Y. 674 ; p. 39 (app'l.) 
 
 V. Evening Mail Ass., 52 N. Y. 625; 
 
 p. 558 (pleading). 
 u. McDonald, 42 How. 360; 11 Abb. 
 
 N. S. 344 ; 33 iV. Y. Supr. 211 ; pp. 12 
 
 (action), 81 (bailment), 139 (comm'ers. 
 
 of emigration), 547 (pleading). 
 Sanborn v. Lefferts, 58 N. Y. 179 ; pp. 
 
 192 (corporation), 596 (practice). 
 
 , MOWRY V. 
 
 Sanchey, Wood v. 
 
 Sander v. Hoffman, 39 N. Y. Supr. 307; 
 
 p. 179 (contract). 
 Sanders v. Gillispie, 64 Barb. 628 ; affd. 
 
 59 N. Y. 250; pp. 160 (contract), 361 
 
 (frauds, statute of). 
 , People ex rel. Commissioners of 
 
 Public Charities v. 
 Sanderson v. Bowen, 2 Hun, 153 ; p. 504 
 
 (new trial). 
 — - V. Caldwell, 45 N. Y. 398; pp. 435, 437 
 
 (libel), 589 (practice). 
 
876 
 
 TABLE OF CASES. 
 
 Sandpokd v. White, 56 N. Y. 395; afEg. 46 
 How. 205 ; pp. 416, 417 (judicial sale), 
 531 (partition). 
 
 Sanfoed, Bereian v. 
 
 D. Sanfokd, 5 Lans. 486; 61 Barb. 
 
 293 ; pp. 26 (action), 29 (advancement), 
 257 (descent), 295, 329 (evidence), 376, 
 377 (lius. and wife), 756, 757 (witness). 
 
 V. , 45 N. Y: 723; pp. 19 (action), 
 
 333 (evidence), 377 (husband and wife). 
 
 V. , 2 Hun, 94 ; p. 439 (lim. of actus. ) 
 
 V. , 58 N. Y. 69 ; pp. 40 (appeal). 
 
 278 (estoppel), 377 (husband and wife). 
 
 V. , 4 Hun, 753 ; p. 738 (will). 
 
 , Stidham v. 
 
 Sands v. Benedict,2 Hun, 479 ; p.71(arrest). 
 
 V. Ceooke, 46 N. Y. 564; pp. 38, 41, 48 
 
 (appeal), 161, 162 (contract). 
 
 , Elmoee v. 
 
 V. Geavbs, 58 iV. Y. 94; p. 394 (ins.) 
 
 V. Hill, 55 N. Y. 18; p. 194 (corp.) 
 
 V. Hughes, 53 N. Y. 286; pp. 29 (ad- 
 verse possession), 274 estoppel), 432 
 (landlord and tenant). 
 
 V. LiLiENTHAL, 46 N. Y. 541 ; pp. 395 
 
 (insurance), 440 (limitation of action). 
 
 V. N. Y. Life Ins. Co., 50 N. Y. 626; 
 
 affirming 59 Barh. 556; pp. 406 (in- 
 surance), 735 (war.) 
 
 , Vincent v. 
 
 Sanger, Tenth Natl. Bank v. 
 
 Santbe, Stephens v. 
 
 Saratoga Co. Bank, Cheever v. 
 
 V. King, 44 N. Y. 87; p. 11 (action). 
 
 Paper Co., Losee v. 
 
 Springs, Village of, Deyoe v. 
 
 Sergeant, Williams v. 
 
 Sarsfield v. Metropolitan Ins. Co., 42 
 Hoto. 97 ; 61 Barb. 479 ; pp. 278 (estop- 
 pel), 402 (insurance.) 
 
 Sarson, McCormick v. 
 
 Satterlee, People v. 
 
 Satteelt v. Hallock, 5 Hun, 178 ; p. 499 
 (negl.) 
 
 Satterthwaite v. Vreeland, 48 Hoio. 
 508; 3 Hun, 152; p. 109 (broker). 
 
 Saunders v. Hines, 44 N. Y. 353 ; pp. 29 
 (adverse possession), 247 (deed). 
 
 , Weight v. 
 
 Savage v. Allen, 54 N. Y. 458 ; affirming 
 59 Barb. 291; pp. 274 (estoppel), 390 
 (injunction.) 
 
 , Barker v. 
 
 V. Howard Ins. Co., and Same v. 
 
 Long Island Ins. Co., 44 How. 40; 
 affirming 43 How. 462 ; p. 897 (ins.) 
 
 V. , 52 N. Y. 502; reversing 44 
 
 How. 40; pp. 397, 398 (insurance). 
 
 Savage v. O'Neil, 44 N. Y. 298; reversing 
 4:2 Barb. 874; pp. 286 (evidence), 376, 
 878 (husband and wife), 435 {lex loci). 
 
 Savort, Howe v. 
 
 Savtter, People ex rel. Irwin v. 
 
 Saxton, Buet v. 
 
 V. Dodge, 46 How. 467; pp. 140 (com- 
 promise), 610 (practice). 
 
 , Van Kueen v. 
 
 Scandinavian National Bank, Allen v. 
 
 SCHAACK, ReEKHOW V. 
 
 Schaefer, Dbvyr v. 
 
 Schaettler v. Gardiner, 44 ffott). 243; 4 
 
 Daly, 56 ; 47 N. Y. 404; pp. 38 (appeal), 
 
 462 (mechanic's lien). 
 
 SCHAFEE, ISHAM V. 
 
 V. Keilly, 50 N. Y. 61; pp. 470, 472 
 
 (mortgage). 
 
 SCHALL, ViLMAR V. 
 SCHANCK, KiBTLAND V. 
 
 V. Morris, 2 Sweeny, 464; p. 596 (praot.) 
 
 SCHAUGHNBSSY V. Reilly, 41 How. 382; p. 
 
 622 (practice). 
 ScHAUs V. Manhattan Gaslight Co. 45 
 
 How. 481; 36 N. Y. Supr. 262; 14 Abb. 
 
 N. S. 371; p. 305 (evidence). 
 Schefpbr, Garrett v. 
 ScHBLL, In re, 53 N. Y. 263; again 4 Hun, 
 
 65; p. 721 (trusts). 
 
 , People ex rel. Lawrence v. 
 
 V. Plumb, 46 How. 11 ; affd. 55 N. Y. 
 
 592 ; pp. 238 (damages), 289, 306 (evi- 
 dence). 
 ScHENCK V. Andrews, 46 N. Y. 589; pp. 
 
 186, 189 (corporation). 
 V. , 57 N. Y. 133; pp. 189 (corpo- 
 
 ration), 597 (practice). 
 V. Ingraham, 4 Hun, 67; 5 Hun, 397 ; 
 
 p. 648 (receivef). 
 
 , Peck v. 
 
 Schenectady Insurance Co., Weed v. 
 Schepeler v. Eisner, 3 Daly, 11; pp. 8 
 
 . (action), 110 (broker). 
 Schepp v. Carpenter, 51 N. Y. 602; afEg. 
 
 49 Barb. 542. See Digest, vol. i. 
 Scheemeehorn v. Gregg, 55 N. Y. 670; p. 
 
 41 (appeal). 
 
 V. Wood, iDaly, 158 ; p. 601 (practice). 
 
 Schettler v. Smith, 84 iV. Y. Supr. 17 ; 
 
 pp. 4 (accounts), 275 (estoppel), 542' 
 
 (payment), 705 (tenants in com.) 
 Schierenberg, Olzen v. 
 ScHiFFER V. Peuden, 39 N. Y. Supr. 167 ; 
 
 p. 260 (dower). 
 
TABLE OF CASES. 
 
 877 
 
 ScHiNDLER V. EuELL, 45 How. 33 ; 4 Daly, 
 553 ; p. 361 (frauds, statute of). 
 
 SCHLBSINGER, BoYD V. 
 
 V. Hbxter, 34 N. Y. Supr. 499; p. 298 
 
 (evidence). 
 
 SCHLOEMEK V. ScHLOEMEK, 49 N. Y. 82 ; p. 
 
 458 (marriage and divorce). 
 SCHLOSS, Kercheis v. 
 SoHMADES, Met. Board op Health v. 
 
 SCHMALHOLZ V. PoLHANS, 49 HoW. 59 ; pp. 
 
 418 (jurisdiction), 529 (parties). 
 
 SCHMERSAHL, RoGERS V. 
 
 ScHMiD V. Arguimban, 46 How. 105 ; p. 574 
 
 (practice). 
 Schmidt, Holtz v. 
 
 V. Levy, 61 Barb. 496; p. 51 (appeal). 
 
 , Sussdorpf v. 
 
 Schneider v. Hobein, 41 How. 232 ; p. 460 
 
 (mechanic's lien). 
 V. McCabe, 36 N. Y. Supr. 83 ; p. 503 
 
 (new trial). 
 ScHOELLKOPP, Francis v. 
 schoemig, hupfel v. 
 Schoenfeldt, Zimmerman v. 
 schoenwald v. metropolitan savings 
 
 Bank, 57 N. Y. 418; revg. 33 iV. Y. 
 
 Supr. 440 ; p. 85 (banks). 
 Schoharie Valley Mach. Co., Cary v. 
 Schoharie Valley R. R. Case, 12 Abb. N. 
 
 S. 394 ; p. 185 (corporation). 
 ScHOLEY V. MuMFORD, 60 N. Y. 498 ; p. 465 
 
 (money paid). 
 V. Worcester, 4 Hun, 302 ; p. 277 
 
 (estoppel). 
 ScHONBERG V. Cheney, 3 Hun, 677; pp. 169 
 
 (contract), 235 (damages). 
 Schoolcraft, Reformed Church of 
 
 Gallupville v. 
 Schoonmaker, People v. 
 
 , Kerslake v. 
 
 V. Rouse, 1 Hun, 611 ; p. 235 (dam.) 
 
 V. Spencer, 54 N. Y. 366 ; p. 423 (jus- 
 tice court). 
 Schott v. Schwartz, 48 N. Y. 666; pp. 245 
 
 (deed), 252 (defense). 
 Schreyer, Hubbbll v. 
 
 , Jones v. 
 
 V. Mayor, etc. of New York, 39 N. 
 
 Y. Supr. 1 ; pp. 551, 556 (pleading), 581 
 
 (practice). 
 V. , 39 N. Y. Supr. 277 ; pp. 51 (ap- 
 peal), 565 (pleading). 
 
 SCHROEPEL, CrANDALL V. 
 
 ScHROFF V. Bauer, 42 How. 348 ; 33 N. Y. 
 Supr. 199 ; pp. 58 (appeal), 598 (prac- 
 tice), 732 (waiver). 
 
 Schuchardt v. Mayor, etc. of New York 
 
 city, 59 Barb. 298 ; 62 Barb. 6.71 ; affd. 
 
 53 JV. Y. 202 ; p. 514 (N. Y. city). 
 Schultheis, Grube v. 
 Sohulting, Dambman v. 
 
 , Von Keller v. 
 
 Schultz v. Bradley, 57 N. Y. 646 ; revg. 
 
 4 Daly, 29 ; pp. 174 (contract), 363 
 
 (frauds, statute of). 
 
 SCHUNBMANN V. PARADISE, 46 HoW. 426 ; 
 
 pp. 384 (infants), 616 (practice). 
 
 ScHUTT, Clapp v. 
 
 Schuyler, First Natl. Bane of Port- 
 land V. 
 
 , Putnam v. 
 
 V, Smith, 51 N. Y. 309 ; pp. 434 (land- 
 lord and tenant), 602 (practice). 
 
 Schwab v. People, 4 Hun, 520 ; pp. 216 
 (criminal law), 335 (excise), 684 (stat- 
 utes). 
 
 Schwartz, Schott v. 
 
 ScHWERiN, Brooks v. 
 
 V. McKiE, 51 N. Y. 180 ; a%. 5 Rob. 
 
 404. See Digest, vol. iii. 
 
 ScHWiNGER V. HiCKOx, 46 How. 114 ; p. 200 
 (costs). 
 
 V. HiCKOCK, 53 N. Y. 280 ; pp. 283 
 
 (evidence), 465 (money paid), 479 (mort- 
 gage.) 
 
 ScoFiELD V. Hernandez, 47 N. Y. 313 ; pp. 
 43 (appeal), 602 (practice). 
 
 Scopield, Southworth v. 
 
 V. Whitelegge, 10 Abb. N. S. 104 ; 33 
 
 N. Y. Supr. 179 ; affd. 12 Abb. N. S. 320 ; 
 49 N. Y. 259 ; p. 551 (pleading). 
 
 Scott, Alger v. 
 
 , Colligan v. 
 
 *. Conway, 58 iV. Y. 619 ; p. 382 (hus- 
 band and wife). 
 
 V. Delahunt, 5 Lans. 372 ; pp. 135 (chat- 
 tel mortgage), 279 (estoppel), 437 (lien). 
 
 j;.Frink, 54 iV. Y. 635; affg. 53 Barb. 
 
 538. See Digest, vol. iv. 
 
 V. Grand Trunk Ry. Co., 51 N. Y. 
 
 655 ; p. 675 (ships, etc.) 
 
 V. Guernsey, 60 Barb. 163 ; pp. 531, 
 
 532 (partition), 705 (tenants in com.), 
 753 (will), 
 
 V. , 48 JV. Y. 106 ; pp. 531, 532 
 
 (partition), 744 (will). 
 
 , Kelly v. 
 
 , Maxon v. 
 
 , Merchants' Bank v. 
 
 , Merritt v. 
 
 V. People, 62 Barb. 62 ; p. 211 (crimi- 
 nal law). 
 
878 
 
 TABLE OF CASES. 
 
 , SORTOKE V. 
 
 V. Stkvenson, 3 Hun, 352; p. 313 (evid.) 
 
 ScoviL V. Wait, 54 N. Y. 650; p. 664 (sale). 
 
 ScoviLLE V. Lastdon, 50 N. Y. 686 ; pp. 38 
 (appeal), 94, 101 (bills and notes). 
 
 , Taylor v. 
 
 Manp'g. Co., Van Lien v. 
 
 ScRANTON, Dudley v. 
 
 Scripture, Stone v. 
 
 ScuLLiN V. DoLAN, 4 Dcdy, 163 ; p. 12 (ac- 
 tions). 
 
 ScuLLEY, Wheeler v. 
 
 Seagreave, Real Est. Trust Co. v. 
 
 Seaman, Garretson v. 
 
 V. Glegnee, 3 Hun, 119 ; p. 197 (costs). 
 
 , Hoeet v. 
 
 V. Mayor, etc. op N. York, 3 Daly, 
 
 147; p. 484 (municipal corporation). 
 
 Seaman's Savings Bank, Fordred v. 
 
 Sears, Bloodgood v. 
 
 , Manhattan Brass Manpg. Co. v. 
 
 Seaver v. Moore, 1 Hun, 305 ; p. 625* 
 (practice). 
 
 Secomb v. Milwaukee, etc. R. R. Co., 49 
 How. 75 ; pp. 269 (eminent domain), 352 
 (former adjudication). 
 
 Second Avenue R. R. Co. , Gray v. 
 
 , Jackson v. 
 
 , Pendil v. 
 
 , Queen v. 
 
 Second Natl. Bank of Oswego, Conk- 
 
 LIN V. 
 
 V. PouCHER, 56 N. Y. 348; pp. 43 (ap- 
 peal), 101, 102 (bills and notes). 
 
 Security Bank of N. Y. v. Nat. Bank of 
 CoMMONWEATH, 48 How. 135 ; 2 Hun, 
 287; pp. 25 (action), 52 (appeal), 606 
 (practice). 
 
 Security Life Ins. & Annuity Co., Bren- 
 
 NAN V. 
 
 Sedgwick, Berdan v. 
 
 See v. Bbrnheimer, 38 N. Y. Supr. 40 ; p. 
 
 298 (evidence). 
 
 , McKeon v. 
 
 , Turner v. 
 
 , Wheeler v. 
 
 Seebald , Meyer v. 
 
 Seligman, Bernhard v. 
 
 Selmes, Raynor v. 
 
 Selover, Graham?). 
 
 Seltenreich v. Hiembntz, 46 N. Y. 677 ; 
 
 pp. 5 (action), 45 (appeal), 328 (evid.) 
 Selwood, Wells v. 
 
 Seneca Lake G. & W. Co., McMillan v. 
 Nation or Indians v. Hammond, 4 
 
 Hun, 417 ; p. 383 (Indians). 
 
 431 
 
 158 
 
 Senior, Warning v. 
 
 Sergeant, Smith v. 
 
 Servine, Atkinson v. 
 
 Servoss v. Wood, 1 Hun, 314 ; p. 624 
 
 (practice). 
 Settle v. Van Evrea, 49 N. Y. 280 ; pp. 
 
 142 (constitutional law), 602 (practice). 
 Seward v. Torrencb, 3 Hun, 220 ; p. 557 
 
 (pleading). 
 Sexaner v. Bowen, 10 Alh. N. S. 335 ; S. 
 
 C, 3 Daly, 405 ; p. 552 (pleading). 
 Sexton, Hodge v. 
 V. Zett, 44 N. Y. 430 ; affg. 56 Barh. 
 
 119. See Digest, vol. iv. 
 Seybell v. Nat. Currency Bank, 54 N. 
 
 Y. 288 ; affg. 2 Daly, 383 ; 4: All. N. 8. 
 
 352. See Digest, vol. iv. 
 Seymour, Dupuy v. 
 V. Matteson, 42 How. 496 ; pp. 294, 
 
 312 (evidence). 
 Shadbr v. Ry. Pass. Assu. Co., 3 Hun, 424; 
 
 p. 410 (insurance). 
 Shafbr, Chapin v. 
 Shallies v. Wilcox, 2 Hun, 419 ; p. 
 
 (landlord and tenant). 
 Shanahan, Sheahan v. 
 Shank's Case, 15 Alb. N. S. 38 ; pp. 
 
 (contempt), 369, 370 (habeas corpus). 
 Shannon, Bancroft v. 
 Shaper v. Wing, 2 Hun, 671 ; p. 383 (idiots, 
 
 etc.) 
 Shapter, Hanford v. 
 
 , Studwell v. 
 
 Sharkey v. Larkin, 52 N. Y. 623 ; p. 169 
 
 (contract). 
 Sharkey, People v. 
 Sharp, In matter of, 56 N. Y. 257 ; p. 
 
 279 (estoppel). 
 
 V. Dimmick, 4 Lans. 496; p. 751 (will). 
 
 Sharpe v. Freeman, 45 N. Y. 802; afEg. 2 
 
 Lans. 171. See Digest, vol. iv. 
 V. Johnson, 41 How. 400; 60 Barb. 144; 
 
 3 Lans. 520. See Digest, vol. iv. 
 Shattuck, Colman v. 
 Shaver «. Western Un. Tel. Co., 57 iV. 
 
 Y. 459; p. 94 (bills and notes). 
 
 , WiLLEY V. 
 
 Shaw, Bedell v. 
 
 , compton v. 
 
 , Doscher v. 
 
 V. Home Life Ins. Co., 49 N. Y. 681; 
 
 p. 170 (contract). 
 V. Mbldrum, 14 Abb. N. S. 165, n. ; p. 
 
 421 (jurisd.) 
 !i. People, 3 Hun, 272; pp. 222, 228 
 
 (criminal law). 
 
TABLE OF CASES. 
 
 879 
 
 , State Bank of Olean v. 
 
 Sheahan v. Shanahan, 5 Hun, 461 ; p. 564 
 
 (pleading). 
 Sheak v. Phosnix Mot. Life Ins. Co., 4 
 
 Hun, 800; p. 409 (insurance). 
 Shearman v. Niagara Fire Ins. Co., 2 
 
 Sweeny, 470; S. C, 40 How. 393; affd. 
 
 46 N. Y. 526. See Digest, vol. iv. 
 Shears v. Solhinger, 10 Abb. N. S. 287; 
 
 p. 85 (bankruptcy). 
 Shedd«. Montgomery, 61 Barb. 507; p. 465 
 
 (money paid). ■< 
 
 Sheehan, Clark v. 
 
 V. Edgar, 58 N. Y. 631; pp. 238 (dam- 
 ages), 489 (negligence). 
 Sheffield, Agricultural Fatl. Bank v. 
 Sheldon, Beck v. 
 !>. Button, 5 Hun, 110; pp. 284 (evid.), 
 
 365 (gift), 378 (husband and wife). 
 V. Clancy, 42 How. 186; 61 Barb. 475; 
 
 p. 377 (husband and wife). 
 V. Horton, 43 N. Y. 93; affirming 58 
 
 Barb. 28. See Digest, vol. iv. 
 
 , Jones v. 
 
 V. Parker, 8 Hun, 498; p. 98 (bills 
 
 and notes). 
 
 , Payne v. 
 
 V. Sheldon, 51 N. Y. 354; p. 42 (app.) 
 
 Shellington v. Howland, 53 N. Y. 871 ; 
 
 pp. 190 (corporation), 596 (practice). 
 Shelton Merchants' Despatch Trans. 
 
 Co., 36 N. Y. Supr. 527 ; p. 115 (carr.) 
 „. , 59 N. Y. 258 ; revg. 36 N. Y. 
 
 Supr. 527; pp. 116, 117, 122 (carrier), 
 
 599 (practice), 629 (prin. and agent). 
 V. , 48 How. 257; pp. 116, 117 
 
 (carrier), 328 (evidence). 
 Shepard v. Heineken, 2 Sweeny, 525 ; p. 
 
 188 (conversion). 
 
 , Hildreth v. 
 
 V. Hill, 6 Lans. 387; pp. 57 (appeal), 
 
 359 (frauds, stat. of), 
 
 , Powers v. 
 
 V. Shepard, 1 Hun, 240; p. 454 (mar- 
 riage and div.) 
 
 , townsend v. 
 
 Sheppard, Hicks v. 
 
 V. Steele, 43 N. Y. 52; affg. 3 Lans. 
 
 417; pp. 151, 154 (constl. law), 808 
 
 (evidence), 487 (lien), 542 (payment). 
 Sherar v. Willis, 5 Lans. 329 ; p. 423 
 
 just, court). 
 Sheridan v. Andrews, 49 N. Y. 478 ; affg. 
 
 3 Lans. 312; p. 268 (ejectment). 
 V. Chaklich, 4 Daly, 338; pp. 455 
 
 (master and servant), 494 (negligence). 
 
 Sheridan, Donovan v. 
 
 V. Jackson, 57 N. Y. 655; p. 260 
 
 (dower). 
 
 , Sweeney v. 
 
 Sheriff v. Smith, 47 How. 470; p. 287 
 
 (evidence), 353 (former adjudication), 
 
 419 (jurisdiction). 
 Sherman, Clark v. 
 V. Gregory, 42 How. 481; p. 578, 574 
 
 (practice). 
 , Home Life Ins. Co. v. 
 
 V. Parish, 58 N. Y. 483; pp. 529 (par- 
 ties), 581 (practice), 718 (trusts). 
 
 V. Smith, 42 How. 198; p. 71 (arrest). 
 
 V. Western Transportation Co., 62 
 
 Barb. 150; p. 493 (negligence). 
 
 V. Wright, 49 N. Y. 227; pp. 275 
 
 (estoppel), 678 (spec, perf.), 693 (sum- 
 mary proceedings). 
 
 Sherrill, Morss v. 
 
 Sherwood, Coyle v. 
 
 V. Fischer, 8 Hun, 606 ; p. 161 (cont.) 
 
 V. Merc. Mut. Ins. Co., 5 Hun, 115 ; 
 
 pp. 598, 596 (practice). 
 
 Sherwood, Peck v. 
 
 V. Pratt, 68 Barb. 187; pp. 292, 822 
 
 (evidence). 
 
 V. , 11 Abb. N. S. 115; p. 40 (appeal). 
 
 V. Wilson, 2 Sweeny, 684; p. 9 (action). 
 
 Shetterly, Gerwig v. 
 
 Shew, Taylor v. 
 
 Shiel, Thorn v. 
 
 Shields v. Niagara Savings Bank, 3 
 
 Hun, 477; pp. 173 (contract), 578 (prac- 
 tice), 731 (waiver). 
 
 V. Shields, 60 Barb. 56 ; p. 697 (surr.) 
 
 Shiffer, Phillips v. 
 
 Shipman, O'Connor v. 
 
 Shipsey v. Bowery National Bank op 
 
 New York, 86 N. Y. Supr. 501; pp. 186 
 
 (check), 84 (banks), 541 (payment). 
 V. ','59 N. Y. 485; pp. 88 (banks), 
 
 542 (payment). 
 Shirley v. Bennett, 6 Lans. 512; pp. 160 
 
 (contract), 756 (witness). 
 Shoemaker v. Glens Falls Ins. Co., 60 
 
 Barb. 84; pp. 68 (appeal), 402 (ins.) 
 
 , Walker v. 
 
 Shook v. Daly, 49 How. 366; p. 622 (pract.) 
 Shorter v. Nelson, 4 Lans. 114; p. 878 
 
 (husband and wife). 
 Shrader v. Botjker, 65 Barb. 608; pp. 6 
 
 (action), 60 (appeal), 248 (deed) , 306, 314 
 
 (evidence). 
 Shufplin v. People, 4 Hun, 16 ; pp. 213, 
 
 218, 223, 224, 280 (criminal law). 
 
880 
 
 TABLE OF CASES. 
 
 Shtjler v. Meyers, 5 Lans. 170; pp. 66 
 (appeal), 550 (pleading). 
 
 Shull v. Ostrander, 63 Barb. 130; p. 
 664 (sale). 
 
 Shultis, Wood v. 
 
 Shultzb, Pollok v. 
 
 Shuman v. Strauss, 52 N. Y. 404; affirm- 
 ing 34 iV. Y. Supr. 6; pp. 17 (action), 37 
 (appeal), 89 (bankr.), 463 (merger), 611 
 (practice). 
 
 Shumway v. Harmon, 4 Hun, 411; p. 748 
 (wiU). 
 
 Shtjte v. Hamilton, 3 Daly, 462 ; pp. 165 
 177 (contract), 232 (damages), 554 (plead- 
 ing), 734 (waiver). 
 
 Shtjttleworth v. Winter, 55 N. Y. 624; 
 pp. 38 (appeal), 345 (exrs. and adm,.), 
 376, 377 (husband and wife). 
 
 Sibley, Hubbell v. 
 
 Sickle v. Marsh, 44 How. 91 ; p. 367 (guar- 
 anty). 
 
 Sickles v. Gillies, 35 N. Y. Supr. 14; 45 
 How. 94; pp. 322 (evid.), 541 (paym.) 
 
 V. , 45 How. 94; p. 56 (appeal). 
 
 t). SuLLiTAN, 5 Hun, 569 ; p. 422 (just. 
 
 court). 
 
 SiEGEL V. Gould, 7 Lans. 177 ; p. 109 (brok.) 
 
 V. Lewis, 54 N. Y. 651 ; p. 310 (evi- 
 dence). 
 
 SiGEL, HaLLW. 
 
 , People ex rel. Adams v. 
 
 SiGLEK, McKeLLAR V. 
 
 SiLLiMAN V. Lewis, 49 N. Y. 379; pp. 499, 
 502 (negligence). 
 
 , Martin v. 
 
 SiLSBEE V. Smith, 41 How. 418 ; 60 Barb. 
 
 372 ; p. 529 (parties), 545, 550 (plead.) 
 Silver v. Bowne, hiN. Y. 659; p. 661 (sale). 
 Silverman, Mushlitti;. 
 Simar v. Canaday, 53 N. Y. 298; pp. 20, 
 
 24 faction), 49, 61 (appeal), 356 (fraud), 
 
 381 (husband and wife), 580, 593 (prac.) 
 Simmons v. Cloonan, 47 N. Y. 3; p. 247 
 
 (deed). 
 
 , Kennedy v. 
 
 V. Lyons, 35 N. Y. (Sw^r. 554; affirmed 
 
 55 N. Y. 671 ; pp. 54 (app.), 547 (plead.), 
 
 585 (practice). 
 V. Richardson, 5 Hun, 177; p. 62 
 
 (appeal). 
 
 , ROBDIGER V. 
 
 V. Wood, 45 How. 262 ; p. 649 (receiv.) 
 
 Simon, Drucker v. 
 SiMONSON, Burgess v. 
 , Delavan v. 
 
 V. KissicK, 4 Daly, 143 ; pp. 108 (brok.), 
 
 169 (contract). 
 SiMPKiNS w. Low, 54 N. Y. 179 ; affirming 
 
 49 Barb. 382; pp. 41 (app.), 239 (dam.) 
 Simpson v. Buck, 5 Lans. 337; pp. 26 (act.), 
 
 528 (parent and child). 
 V. Burch, 4 Hun, 315 ; pp. 569, 570 
 
 (practice). 
 
 V. English, 1 Hun, 559 ; p. 741 (wUl). 
 
 , Hill u. 
 
 V. McKay, 3 Hun, 316; pp. 63 (app.), 
 
 314 (evidence). 
 SiMSON, Driggs v. 
 Sinclair, Budd «. 
 
 , McGuiRE V. 
 
 - — V. Neill, 1 Hun, 80 ; p. 175 (contract), 
 
 603 (practice). 
 SiNNOTT, Beard «. 
 SiNSHEiMER, Rogers v. 
 
 SiSSON, WiLBER V. 
 
 SisTARE V. Gushing, 4 Hun, 503 ; p. 537 
 (partnership). 
 
 , PURDY V. 
 
 Sixth Ave. R. R. Co., Colt v. 
 
 , quinlan v. 
 
 Sixth Nat. Bank of N. Y., Un. Nat. Bank 
 OP Troy v. 
 
 SizERu. Syracuse, Bing. & N. Y. R. R. Co., 
 7 Lans. 67 ; p. 456 (master and serv.) 
 
 Skeel, Green v. 
 
 Skiddy, Morgan v. 
 
 Skidmore, Clarkson «. 
 
 , Reinmiller v. 
 
 Skinner v. Quin, 43 N. Y. 99; pp. 606 
 (practice), 747 (will). 
 
 , St. John v. 
 
 D. Valentine, 59 N. Y. 473 ; p. 366 
 
 (guaranty). 
 
 V. Wheeler, 2 Hun, 598 ; p. 241 (dam. 
 
 Slade v. McMullen, 45 How. 52 ; p. 586 
 (practice). 
 
 Slater v. Fox, 5 Hun, 544 ; pp. 488 (navi- 
 gable streams), 656 (riparian owners). 
 
 Slatterly v. People, 58 N. Y. 354 ; pp. 
 211, 219 (criminal law). 
 
 V. , 1 Hun, 311; p. 280 (crim. law). 
 
 Slauson, Ludington v. 
 
 Slawson v. Albany Ry., 1 Hun, 438 ; afEd. 
 60 N. Y. 606 ; pp. 176 (contract), 235 
 (damages). 
 
 Sleight, People ex. rel. Hallock v. 
 
 Slingerland v. Bronk, 47 How. 408 ; p. 66 
 (appeal). 
 
 Sloane v. Elmer, 1 Hun, 310; p. 456 (mas- 
 ter and servant). 
 
 Sloan v. N. Y. Central & Hud. Riv. R. 
 
TABLE OF CASES. 
 
 881 
 
 R. Co., 1 Hun, 540 ; pp. 375 (husband 
 and wife), 503 (new trial). 
 
 f. N. T. Cent. R. R. Co., i5N. Y. 125; 
 
 pp. 304 (evidence), 585 (practice), 757 
 (witness). 
 
 Slocttm v. English, 2 Hun, 78 ; p. 342 (ex- 
 ecutors and administrators). 
 
 V. Freeman, 46 How. 437 ; pp. 42 (ap- 
 peal), 416 (judgment). 
 
 Smidt, Baldwin ». 
 
 Smiley v. Bailey, 59 Barh. 80 ; p. 753 
 (will). 
 
 Smith, In re. , 52 N. Y. 526 ; reversing 65 
 Barb. 283 ; p. 517 (N. t. city). 
 
 V. Mti(x Life Ins. Co., 5 Lans. 545 ; 
 
 afEd. 49 N. Y. 211 ; pp. 43, 57 (appeal), 
 404, 407, 408 (insurance). 
 
 V. Alvobd, 63 Barb. 415 ; pp. 350 (for- 
 eign corporation), 724, 725 (usury). 
 
 V. Am. Coal Co. of Alleghant 
 
 County, 7 Lans. 317 ; pp. 9 (action), 
 184 (corporation), 619 (practice). 
 
 , Beckwith v. 
 
 V. Beldbn, 3 Hun, 622; p. 352 (former 
 
 adjudication). 
 
 V. , 60 N. Y. 642 ; p. 37 (appeal). 
 
 , BlXBY V. 
 
 V. BoDiNE, 1 Hun, 309; pp. 51 (appeal), 
 
 565 (pleading). 
 
 , Bond v. 
 
 V. Borst, 63 Barb. SI ; pp. 315 (evi- 
 dence), 665 (sale). 
 
 V. Boyer, 41 How. 258; p. 97 (biUs 
 
 and notes). 
 
 , Bkiggs v. 
 
 V. Britton, 45 How. 428; p. 8 (action). 
 
 , Calkins v. 
 
 , Caughey v. 
 
 , Childb v. 
 
 V. Christopher, 3 Hun, 585 ; pp. 697 
 
 (surrogate), 755 (witness). 
 
 V. Church, 5 Hun, 109 ; p. 529 (parent 
 
 and child). 
 
 V. City op Albany, 7 Lans. 14 ; pp. 
 
 11 (action), 31 (Albany), 177 (contract), 
 687 (statutes). 
 
 V. Cob, 33 N. Y. Supr. 480 ; pp. 207 
 
 (covenant), 232 (damages). 
 
 „. , 55 N. Y. 678; pp. 427 (land- 
 lord and tenant), 596 (practice). 
 
 , Curtis v. 
 
 , Daly v. 
 
 , De Roe v. 
 
 V. Douglass, 4 Daly, 191 ; pp. 23 (ac- 
 tions), 454 (master and servant). 
 
 , Dkiggs v. 
 
 56 
 
 Smith v. Duchakdt, 45 N. Y. 597 ; pp. 6 
 (action), 168 (contract). 
 
 V. Felton, 43 N. Y. 419 ; p. 670 (set- 
 off). 
 
 , Fey v. 
 
 , fordham v. 
 
 , Foreman v. 
 
 V. Fox, 48 N. Y. 674; p. 670 (set-off). 
 
 D.Frost, 39 iV. Y. Supr. 389; p. 565 
 
 (pleading). 
 
 , Gallation v. 
 
 , Grant v. 
 
 , Harrison v. 
 
 V. Hart, 58 iV. Y. 644; p. 584 (pract.) 
 
 V. Hazard, 4 Hun, 418; pp. 755, 756 
 
 (witness). 
 
 , Head v. 
 
 V. Heath, 4 Daly, 123 ; pp. 390 (in- 
 junction), 724 (usury). 
 
 V. Hbmstbbbt, 54 N. Y. 644 ; p. 851 
 
 (former adjudication). 
 
 , Hindb v. 
 
 , Herbert v. 
 
 , Hinckley v. 
 
 , Hodnett t>. 
 
 V. Holland, 61 Barb. 333 ; pp. 5 (ac- 
 tion), 161 (cont.), 317 (evid.), 594 (pract.) 
 
 , Holmes v. 
 
 , Hope v. 
 
 , Howard v. 
 
 , Hudson v. 
 
 , hutchins v. 
 
 V. Isaacs, 58 N. Y. 680; reversing 37 
 
 N. Y. Supr. 3 ; pp. 46, 63 (appeal). 
 
 , JONBS V. 
 
 , JUDD V. 
 
 V. KoBBE, 59 Barb. 289; p. 602 (pract.) 
 
 , Leaird v. 
 
 , Leland v. 
 
 V. LiTTLEFiBLD, 51 N. Y. 539 ; p. 425 
 
 (land, and tenant). 
 
 , LUPTON V. 
 
 V. Mackin, 4 Lans. 41 ; pp. 9 (action), 
 
 565 (pleading). 
 
 , McKenzib v. 
 
 , McLaughlin v. 
 
 V. McNamara, 4 Lans. 169; pp. 108 
 
 (bound.), 277 (estoppel), 314 (evidence,) 
 
 587, 597 (practice). 
 
 V. Mahony, 3 Daly, 285; p. 611 (pract.) 
 
 V. Manhattan Ins. Co., 4 Hun, 127; 
 
 p. 194 (corporation). 
 
 , Martin v. 
 
 , Marvin v. 
 
 V. Matson, 47 How. 118 ; p. 605 (praet.). 
 
 V. Mayor, etc. of New York city, 
 
882 
 
 TABLE OF OASES. 
 
 47 How. 227; 1 Hun, 56 ; pp. 509 {New 
 
 Tork city), 68i (statutes). 
 Smith v. Mayor, etc. or New York city, 
 
 4: Hun, 644; p. 508 (New York city). 
 
 V. , 4 Hun, 637 ; p. 521 (N. Y. city). 
 
 „. , 5 Hun, 237; p. 521 (N.Y. city). 
 
 V. Miller, 43 N. Y. 171; revg. 6 Roi. 
 
 157; 6 Ahb. N. S. 234; pp. 101 (biUs 
 
 and notes), 540 (payment). 
 V. , 52 N. Y. 545; p. 95 (bills and 
 
 notes). 
 V. MiLLiKEN, 7 Lans. 336 ; pp. 660, 666 
 
 (sale). 
 
 , Mitchell v. 
 
 , Morgan v. 
 
 V. Mulligan, 11 Abb. N. S. 438; pp. 
 
 32 (alien), 257 (descent).' 
 
 , Murray v. 
 
 , National Bank of Newburgh v. 
 
 V. OsBORN, 45 How. 351 ; pp. 505 (new 
 
 trial), 578 (practice), 732 (waiver). 
 
 , Pease v. 
 
 V. People, 47 N.Y. 330; pp. 146 (constl. 
 
 law), 528 (oyer and term.), 683 (stats.) 
 V. , 47 N. Y. 303; pp. 216, 219, 
 
 223 (criminal law). 
 V. 53 iV. Y. 110; p. 212 (criminal 
 
 law). 
 
 , People ex rel. Green v. 
 
 , People ex rel. Haines v. 
 
 1). Post, 1 Hun, 516 ; pp. 133 (chattel 
 
 inortgage), 587 (practice). 
 
 , Post v. 
 
 , Premou 
 
 , Ray v. 
 
 ; Read v. 
 
 , BiSLEY V. 
 
 V. Rockefeller, 3 Hun, 295 ; pp. 746, 
 
 754 (will). 
 , Rogers v. 
 
 , ROWE V. 
 
 V. Ryan, 39 N. Y. Supr. 489 ; p. 441 
 
 (limitation of actions). 
 
 , Schettleb v. 
 
 , Schuyler w. 
 
 V. Sergeant, 2 Hun, 107; pp. 309, 
 
 310, 314, 321, 324 (evidence). 
 
 , Sheriff v. 
 
 , Sherman v. 
 
 , SiLSBEB V. 
 
 V. Smith, 6 Lans. 313; p. 261 (dower). 
 
 V. , 37 N. Y. Supr. 203; pp._ 302 
 
 (evidence), 548 (pleading). 
 
 V. , 60 N. Y. 161 ; pp. 337 (execu- 
 tion), 551 (pleading), 672 (sheriff). 
 
 V. Starr, 4 Hun, 123; p. 367 (guaranty.) 
 
 Smith, Stone v. 
 
 , SUYDAM V. 
 
 V. Van Nostrand, 3 Hun, 450 ; p. 745 
 
 (will). 
 V. Van Olinda, 48 N. Y. 169 ; pp. 305 
 
 (evidence), 707 (title to chattels). 
 w.Velie, 60 N. Y. 106; pp.49 (appeal), 
 
 169 (contract), 439 (limitation of ac- 
 tions), 413 (interest). 
 V. Warden, 4 Hun, 787 ; p. 527 
 
 (office, etc.) 
 
 , White v. 
 
 V. Wilcox, 4 Hun, 411; p. 303 (evid.) 
 
 V. Wright,' 4 Hun, 652; p. 169 (c'tract.) 
 
 Sneeden, Hatfield v. 
 Snell, Brown v. 
 
 , Van Slyck v. 
 
 Snelling v. Howard, 51 N. Y. 373; affg. 
 
 7 Rob. 400. See Digest, vol. iv. 
 Snodgrass v. Krenkle, 49 How. 122 ; p. 19 
 
 (action). 
 Snook v. Lord, 56 N. Y. 605; p. 313 (evid.) 
 Snow v. Columbian Ins. Co., 48 iV. Y. 
 
 624; reversing 48 Barb. 469; p. 411 
 
 (insurance). 
 
 , Fourth Natl. Bane v. 
 
 , Tompkins v. 
 
 Snyder v. Davis, 47 How. 147; 1 Hun, 350; 
 
 p. 337 (execution). 
 
 , Lyon v. 
 
 , Mapes ti. 
 
 , Norton v. 
 
 Society for Reformation of Juvenile 
 
 Delinquents v. Diers, 10 ^166. N. S. 
 
 216; 60 Barh. 152; pp. 385, 388 (injunc- 
 tion). 
 Society OF Church OF Puritans, Aber- 
 
 nathy v. 
 
 OF Concord, Wallman v. 
 
 Soheb v. Fargo, 47 How. 228; 1 Hun, 312; 
 
 p. 574 (practice). 
 SoLHiNGER, Shears v. 
 Solomon v. Congregation B'nai Jeshu- 
 
 RUN, 49 How. 263 ; pp. 389 (injunction), 
 
 651 (religions corporation). 
 
 , Giles v. 
 
 Son, Sands v, 
 
 Sonneborn v. Lavarello, 2 Hun, 201; pp. 
 
 70 (arbitration), 732 (waiver). 
 SoRCHAN V. City of Brooklyn, 3 Hun, 
 
 562 ; p. 487 (municipal corporation). 
 SoKTORE V. Scott, 6 Lans. 271; pp. 21 
 
 (action), 546 (pleading), 719 (trusts). 
 SouLE, Cook v. 
 
 V. Ludlow, 3 Hun, 503 ; p. 475 (mort- 
 gage). 
 
TABLE OF CASES. 
 
 883 
 
 , McAkthur ». 
 
 Southard «. Botd, 51 N. Y. 177 ; p. 178 
 (contract). 
 
 Southern Central R. R. Co., v. Town of 
 Moravia, 61 Barh. 180; p. 413 (in- 
 terest). 
 
 SouTHSiDE R. R. Co., Borden v. 
 
 Ry. Co. op Lg. Island, Broiestedt v. 
 
 R. R. Co., Clinch v. 
 
 Southwick, Bailet v. 
 
 V. Southwick, 2 Sweeny, 234; affirmed 
 
 49 N. Y. 510;' pp. 40 (appeal), 149 con- 
 stitutional law), 380 (htisband and wife), 
 755 (witness). 
 
 SouTHWORTH, Matter of, 5 Hun, 55; pp. 
 56 (appeal), 686 (statutes). 
 
 V. Bennett, 58 N. Y. 659 ; pp. 39 (ap- 
 peal), 576, 584 (practice), 724 (usury). 
 
 V. ScoFiELD, 51 N. Y. 513 ; p. 472 
 
 (mortgage). 
 
 SOVERHILL V. SUTDAM, 59 N. Y. 140; p. 
 
 345 (exrs. and adm.) 
 Space, Gillis v. 
 Spader, McCombie v. 
 
 , Taylor v. 
 
 Spaids v. New York Mail Steamship Co., 
 
 ZDaly, 139; p. 126 (carrier). 
 Spaulding, Cook ». 
 
 , Getty v. 
 
 , Giles v. 
 
 , Hollingsworth v. 
 
 , Murphy v. 
 
 Speight, National Bank of Fishkill v. 
 Speis, Barton v. 
 Spelman, Wehle v. 
 Spbnce, Mullaney v. 
 Spencer, Baker v. 
 
 V. Carr, 45 N. Y. 406 ; pp.^79 (estop- 
 pel), 281 (evidence). 
 
 , Goodenough v. 
 
 , Hill u. 
 
 , People ex rel. Rogers v. 
 
 , RUGG V. 
 
 , Schoonmaker v. 
 
 , Ward v. 
 
 Sperry v. Reynolds, h Lans. 407; pp. 66 
 (appeal), 422 (justice's court). 
 
 Speyer, In matter of, 42 How. 387; p. 86 
 (bankruptcy). 
 
 V. Colgate, 4 Hun, 622 ; p. 110 
 
 (broker). 
 
 V. Stern, 2 Sweeny, 516 ; pp. 582, 584 
 
 (practice). 
 
 Speyers v. Fisk, 3 Hun, 706 ; pp. 535 (part- 
 ner), 546 (pleading) 
 
 , Peabody v. 
 
 , Phillips v. 
 
 Spicer, Emerson v. 
 
 V. Waters, 65 Barb. 227 ; pp. 102 
 
 bonajide purchaser), 238 (damages), 357 
 (fraudulent conversion), 588 (practice). 
 
 Spies, Johnson v. 
 
 Spibss, Oberlander v. 
 
 Spinner v. N. Y. Central & Hudson Riv. 
 R. R. Co., 2 Hun, 421; p. 591 (practice.) 
 
 Spinola, Wheeler v. 
 
 Spofford, Bassett v. 
 
 , Board of Commrs. op Pilots v. 
 
 , Carll v. 
 
 , Carbere v. 
 
 , Commissioners op Pilots v. 
 
 , Goelet v. 
 
 , Henderson v. 
 
 — '—, Stukges v. 
 
 Spooner v. Brooklyn City R. R. Co., 54 
 N. Y. 230; reversing 51 Barb. 580; pp. 
 495, 500 (negligence). 
 
 V. Kbelbr, 51 N. Y. 527; pp. 44 (ap- 
 peal), 556 (pleading), 676 (slander). 
 
 Spotts v. Dumbsnil, 12 Abb N. S, 117; SrC, 
 svb nam. In Matter of Dumesnil, 47 
 N. Y. 677; pp. 68 (appeal), 734 (waiver). 
 
 Sprague, Far. & Mech. Natl. Bank of 
 Buffalo v. 
 
 , HOYT V. 
 
 V. McKenzie, 63 Barb. 60; pp. 239 
 
 (damages), 307 (evidence). 
 w. N. Y. Central R. R. Co., 52 N. Y. 
 
 637; p. 122 (carrier). 
 Spratt, Gillilan v. 
 
 , Hull v. 
 
 V. Huntington, 48 How. 97; 2 Hun, 
 
 341; pp. 158 (contempt), 625, 626 (prac), 
 
 683 (stats.) 
 V. Nicholson, 3 Daly, 182; pp. 14 
 
 (action), 461 (mechs. lien). 
 
 , Stevenson v. 
 
 Spring v. Day, 44 How. 390; pp. 200, 201 
 
 (costs). 
 
 , Walker ij. 
 
 Springer m. Dwyer, 50 N. Y. 19; revg. 58 
 
 Barb. 189 ; pp. 309 (evid.), 551 (plead.), 
 
 650 (recoup.) 
 Springfield Fire and Marine Ins. Co. 
 
 V. Allen, 43 N. Y. 389 ; p. 898 (ins.) 
 Sprong v. Boston and Albany R. R. Co., 
 
 60 Barb. 30; p. 592 (practice). 
 
 V, , 58 N. Y. 56; p. 500 (negl.) 
 
 Sproul, Strong v. 
 
 Spuyten D. R. Mill Co. , Booth v. 
 
 DuYviL, ETC. R. R. Co., Baxter v. 
 
 , DiTCHETT V. 
 
884 
 
 TABLE OF CAS5:S. 
 
 .; McCaffektyw. 
 
 Spyek v. Fisher, 37 N. Y. Supr. 93; pp, 
 
 108 (broker), 364 (frauds, statof), 694 
 
 (supr. court), 730 (waiver). 
 Squares v. Campbell, 41 How. 193; 60 
 ■ Barb. 391; pp. 33 (animals), 152 (constl. 
 
 law). 
 Squire v. Centl. Park, North and East 
 
 Riv. R. R. Co., 36 N. Y. Supr. 436 ; pp. 
 
 298 (evidence), 498 (negligence)', 504 
 
 (new trial), 579 (practice). 
 Squires, Wood v. 
 St. John, Kilbourne v. 
 
 , Mullen v. 
 
 V. Skinner, 44 ffow. 198; 35 iV. Y. 
 
 Supr. 565 ; pp. 55, 57 (appeal). 
 
 , Tiffany v. 
 
 St. Luke's Home, etc. v. Assn. for Indi- 
 gent Females, 52 N. Y. 191 ; revg. 34 
 
 N. Y. Supr. 241; p. 744 (will). 
 St. Nicholas Ins. Co., Brown v. 
 
 Fire Ins. Co., Russell b. 
 
 St. Paul and Chic. Rt. Co., Thornton v. 
 
 and Pacific R. R. Co., Weetjen v. 
 
 St. Peter v. Denison, 58 iV. Y. 416; pp. 
 
 269 (emi. dom.), 713 (trespass). 
 St. Valerie v. People, 6i Barb. 426; p. 212 
 
 (criminal law). 
 Stack v. Bangs, 6 Lans. 262 ; pp. 114 
 
 (canals), 590 (practice). 
 Stackpole v. Robbins, 48 N. Y. 665 ; p. 12 
 
 (action). 
 Staff, In matter of, 42 How. 414; 43 
 
 How. 110 ; pp. 78 (atty.), 86, 90 (bankr.) 
 Stafford v. Leamy, 43 How. 40; 34 N. Y. 
 
 Supr. 269 ; pp. 55 (appeal), 587 (prac.) 
 Stagg, Naglb v. 
 Stainsby v. Frazibr's Metallic Life 
 
 Boat Co., 3 Daly, 98; p. 632 (principal 
 
 and agent). 
 Stancliff v. Ross, 57 N. Y. 643; p. 682 
 
 (specific performance). 
 Standard Life Ins. Co., Ahern v. 
 Oil Co. v. Triumph Ins. Co., 3 Hun, 
 
 591; p. 628 (prin. and agent). 
 Stanley, DeBary v. 
 Stanton, Buck v. 
 
 , Michael v. 
 
 Stanton u. Miller, 65 Barb. 58; pp. 243 
 
 (deed), 504 (new trial). 
 „. , 58 JV. Y. 192; pp. 243 (deed), 
 
 678 (spec, perf.) 
 
 , Morse m. 
 
 V. Pritchard, 4 Hun, 266 ; p. 241 
 
 (damages). 
 Stapenhorst v. Am. Manufo. Co., 46 
 
 How. 510 ; 15 Abb. N. S. 355 ; 36 JST. Y. 
 Supr. 392 ; pp. 240 (damages), 333 (evi- 
 dence), 433 (land, and ten.), 489 (negl.), 
 590 (practice). 
 
 V. Wolff, 35 N. Y. Supr. 25 ; p. 166 
 
 (contract). 
 
 Staples v. Fenton, 5 Hun, 172; pp. 473- 
 (mortgage), 523 (notice). 
 
 , HiER V. 
 
 , Magoverning v. 
 
 Starbird v. Barrons, 43 N. Y. 200 ; pp. 46 
 
 (appeal), 327 (evidence). 
 
 V. , 2 Hun, 108 ; p. 588 (practice). 
 
 Star Fire Ins. Co. v. GJodet, 3iN. Y. Supr. 
 
 359 ; pp. 615, 626 (practice). 
 Starin v. Kelly, 36 N. Y. Supr. 366 ; pp. 
 
 330 (evidence), 360 (fraud, statutes of), 
 
 595 (practice). 
 V. People, 45 N. Y. 333 ; pp. 217, 224, 
 
 227, 228 (criminal law). 
 Stark, Am. Bible Soc'y v. 
 
 , Crolicts v. 
 
 Starkey v. Kelly, 50 N. Y. 676 ; pp. 239 
 
 (damages), 376 (husband and wife). 
 Starkweather, Cook v. 
 Starr, Smith ». 
 V. WiNEGAR, 3 Hun, 491; pp. 239 
 
 (damages), 595 (practice.) 
 State Bank of Olean v. Shaw, 5 Hun, 
 
 114 ; p. 560 (pleading). 
 State Natl. Bank of Boston, Cooke v. 
 Staten Island R. R. Co., Carroll v. 
 
 , Sanders v. 
 
 Stearns, Wilder v. 
 
 Stearnes, Woodward v. 
 
 Stebbins v. Brown, 65 Barb. 272 ; pp. 604 
 
 (pract. ) 
 V. — -, 65 Barb. 274 ; pp. 320, 322 (evi- 
 dence). 
 
 , Whittakbr V, 
 
 Steckel, Koenig v. 
 Steele, English v. 
 
 , Sheppard v. 
 
 Steers v. Liverpool, N. Y. and Phil. 
 
 Steamship Co., 57 N. Y.l; pp. 42 (ap- 
 peal), 125 (carrier). 
 Stbiger v. ErieRy. Co., 5 Hun, 345; p. 124 
 
 (carrier). 
 Steinbach v. La Fayette Fire Ins. Co., 
 
 54 N. Y. 90 ; pp. 324 (evid.), 398 (ins.) 
 Steinberg v. O'Connor, 42 How. 52; p. 
 
 386 (injunction). 
 Stbinhart v. Dobllner, 34 iV. Y. Supr. 
 
 218; pp. 106 (bonds). 
 Steinle v. Bell, 12 Abb. N. S. 171 ; pp. 
 
 570 (practice), 707 (time). 
 
TABLE OF CASES. 
 
 885 
 
 Steinweg v. Erie Ry. Co., 43 N. Y. 123 ; 
 pp. 117 (carrier), 492 (negligence). 
 
 Stellae v. Nellis, 42 How, 163 ; 60 Barh- 
 524 ; p. 327 (evidence). 
 
 Stenton, Bukr v. 
 
 V. Jerome, 54 N. Y. 480; pp. 4 (ac- 
 counts), 254 (defense), 568 (pledge). 
 
 Stephens, Baker v. 
 
 V. Board of Education op Brooklyn, 
 
 3 Hun, 712 ; p. 466 (money paid). 
 
 , Ferry v. 
 
 , Hollow AY v. 
 
 V. Howe, 43 How, 134 ; p. 653 (removal 
 
 to U. S. court). 
 
 V, , 34 N, Y, Supr, 183 ; pp. 168, 
 
 174 (contract), 608 (practice). 
 
 V, MiNNERLY, 3 Hun, 566 ; p. 389 (in- 
 junction). 
 
 , People v, 
 
 V, Santee, 49 N, Y. 35 ; revg. 51 Barb, 
 
 532 ; pp. 287 (evidence), 424 (just, court), 
 663 (sale>. 
 
 Sterling, Hauseman v. ^ 
 
 Stern w. Nussbacm, 47 How. 489; p. 88 
 (bankruptcy). 
 
 , Speyer v. 
 
 Sterne v. Herman, 11 Abb. N, S. 376 ; p. 
 546 (pleading). 
 
 Sternberger V, McGovERN, 15 Ahh, N, S, 
 257; 56 N. Y. 12; reversing 4 Daly, 
 456 ; pp. 607 (prac.), 678 (spec, perf.), 
 727, 729 (vendor and purchaser). 
 
 Sternfels V, Clark, 2 Hun, 122; p. 234 
 
 Stetson, Town v. 
 
 Stbttaner, Patterson v. 
 
 Stetzer, Gibson v. 
 
 Stevens, Alpord v. 
 
 V, BosTWiOK, 2 Hun, 423; p. 555 (plead- 
 ing)- 
 
 V, Buffalo, Corning & N.T. R. R. Co., 
 
 45 How. 104; pp. 473 (mortgage), 724 
 (usury). 
 
 , Buffalo, N. T. & Erie R. R. Co. v. 
 
 o. Corn Exchange Bank,* 48 How. 
 
 351; ZHwn, 147; pp. 63 (appeal), 135, 
 136 (checks). 
 
 , Dabney v. 
 
 , Goodrich v. 
 
 , Morlby v. 
 
 , RoWE «. 
 
 V. Stevens, 2 Hun, 470; p. 366 (gift). 
 
 , Tucker v. 
 
 Stevenson, Bennett v. 
 
 , Hull v. 
 
 V, Lesley, 49 How. 229; p. 743 (will). 
 
 V, Mayor, etc. of New Tork, 1 Hun, 
 
 51 ; pp. 514 (N. Y. city), 686 (statutes). 
 
 , Scott v, 
 
 V. Spratt, 35 N, Y, Supr, 496 ; pp. 63 
 
 (appeal), 682 (spec, perf.) 
 Steward v, Phcbnix Fire Ins. Co., 5 Hun, 
 
 261 ; p. 402 (insurance). 
 Stewart, Beals v, 
 
 V, Berge, 4 Daly, 477; p. 611 (pract.) 
 
 , Burton v, 
 
 , Coit V, 
 
 V. Drake, 46 N, Y, 449 ; pp. 110 (brok.), 
 
 607 (practice). 
 
 , Field v, 
 
 V. James, 38 iV. Y, Supr. 366 ; p. 562 
 
 (pleading). 
 V, Millard, 7 Lans, 373; p. 540 (pay- 
 ment). 
 
 , Mills v. 
 
 , Organ v. 
 
 V. Orvis, 47 How, 518; pp. 8 (action), 
 
 663 (sale), 691 (subrog.) 
 V, Petree, 55 N. Y. 621 ; p. 723 
 
 (usury). 
 
 , Platt v. 
 
 V. Powers, 38 N. Y. Supr. 56 ; p. 562 
 
 (pleading). 
 Stidham v. Sandford, 36 N. Y. Supr. 341; 
 
 p. 361 (frauds, statute of). 
 Stigbr, Canada v. 
 
 , Crane v. 
 
 Stiles, Foot v. 
 
 V, Meyer, 7 Zans, 190 ; 64 Barb. 77 ; 
 
 pp. 309 (evidence), 533 (partnership). 
 Stillwell v. Kelly, 37 N. Y. Supr. 417; 
 
 pp. 564 (pleading), 577 (practice), 734 
 
 (waiver). 
 Stilwell v. Carpenter, 59 iV. Y. 414; pp. 
 
 270 (equity), 417 (judicial sale), 696 
 
 (surrogate). 
 Stitt, Patton v. 
 Stockham v. Allard, 2 Hun, 67 ; pp., 134 
 
 (chattel mortgage). 
 Stockwell V, Bates, 10 Abb. N. S. 381 ; p. 
 
 420 (jurisdiction). 
 Stoddard v. Denison, 2 Sweeny, 54; S. C, 
 
 38 How. 296 ; 7 Abb. N. S. 309. See 
 
 Digest, vol. iv. 
 V, Whiting, 46 N. Y. 627; pp. 43 (ap- 
 peal), 72 (assignment), 361 (frauds, stat. 
 
 of), 469 (mortgage), 727 (vendor and 
 
 purchaser). 
 Stokes v. Brown, 2 Sweeny, 457; p. 170 
 
 (contract). 
 V. Johnson, 57 N. Y, 673; pp. 585,590 
 
 (practice). 
 
886 
 
 TABLE OF CASES. 
 
 Stokes v. Mackbn, 62 Barb. 145 ; pp. 286 
 (evidence), 337 (execution), 378 (hus- 
 band and wife . 
 
 , Partridge v. 
 
 V. People, 53 N. Y. 164 ; pp. 150 (con- 
 stitutional law), 218, 219, 223, 224, 225 
 (criminal law). 
 
 V. Rbcknagel, 38 N. Y. Supr. 368; pp. 
 
 163, 171 (contract), 659, 662 (sale), 706 
 (tender), 731 (waiver). 
 
 , Van Buren v. 
 
 Stone, Bailbt v. 
 
 V. Browning, 44 How. 131; 13 Alh. N. 
 
 S. 188 ; 51 N. Y. 211 ; revg. 49 Barb. 
 '244; pp. 363 (frauds, statute of), 586 
 (practice), 663 (sale). 
 
 V. Burgess, 47 N. Y. 521 ; aflBrming 2 
 
 Lans. 439. See Digest, vol. iv. 
 
 , Day i;. 
 
 V. Flower, 47 N. Y. 566 ; pp. 41 (ap- 
 peal), 687 (statutes). 
 
 V. Frost, 6 Lans. 440 ; pp. 316, 324 
 
 (evid.), 468 (money paid), 667 (sale). 
 
 , Henderson v. 
 
 V. Miller, 62 Barb. 430 ; pp. 417 (Ju- 
 risdiction), 423 (justice court), 528 (of- 
 fice, etc.) 
 
 , Rome & Oswego Road Co. v. 
 
 V. Scripture, 4 Lans. 186 ; pp. 342 
 
 ex'rs. and adm'rs.), 474 (mortgage). 
 
 V. Smith, 3 Daly, 213 ; p. 461 (mechs. 
 
 lien). 
 
 Stoneman v. Erie Rt. Co., 52 N. Y. 429 ; 
 pp. 125 (carrier), 381 (husband and 
 wife). 
 
 Storet, Wallace v. 
 
 Stout, Allen v. 
 
 , Mendelson v. 
 
 V. Woodward, 5 Hun, 340 ; pp. 69 (ar- 
 bitration), 107 (boundary). 
 
 Stover, Davis v. 
 
 V. People, 56 N. Y. 315 ; pp. 219, 221 
 
 (criminal law). 
 
 Stowell v. Chamberlain, 60 N. Y. 272 ; 
 p. 350 (former adjudication). 
 
 V. Haslett, 5 Lans. 380 ; modified 57 
 
 N. Y. 637 ; pp. 59 (appeal), 209 (cred- 
 itor's bUl), 469 (mortgage). 
 
 , LOBDEL V. 
 
 Stback, People ex rel. Wade v. 
 Stranaghan v. Toumans, 65 Barb. 392 ; 
 
 pp. 464 (money), 541 (payment). 
 Strauss, Osgood j>. 
 
 , Shumanu. 
 
 Strentz, Eldridge v. 
 Strickland, Dorwin v. 
 
 , Goodkind v. 
 
 Stroheim, Goodmans. 
 Strong, Austin v. 
 
 , Brookhaven, Trustees of, v. 
 
 V. DwiGHT, 11 Abb. N. S. 319 ; pp. 33 
 
 (amendment), 288 (evidence). 
 V. EiGHME, 41 How. 117; pp. 205 
 
 (county court), 476 (mortgage). 
 
 , HiNES V. 
 
 V. Lee, 44 How. 60 ; p. 669 (scire fac.) 
 
 , McCullough's Lead Co. v. 
 
 V. Natl. Mech's. Banking Ass'n., 45 
 
 N. Y. 718 ; pp. 17 (action), 181 (con- 
 version), 252 (defense). 
 
 V. N. Y. Laundry Manup'g. Co., 37 
 
 N. Y. Supr. 279 ; p. 724 (usury). 
 
 V. Place, 51 JV. Y. 627 ; revg. 4 J?oJ. 
 
 385. See Digest, vol. ii. 
 
 V. Sproul, 53 N. Y. 497 ; reversing 4 
 
 . Daly, 326; pp. 557, 558 (pleading). 
 
 Struble, Hoppough ». 
 
 Struthers ». Christal, 3 Daly, 327 ; p. 
 199 (costs). 
 
 V. Pbarcb, 51 N. Y. 357 ; p. 534 (part- 
 nership). 
 
 V. , 51 N. Y. 365; pp. 47 (appeal), 
 
 202 (costs). 
 
 Strykek, Rider v. 
 
 Stuart, Dykbes ». 
 
 Studwell o. Shatter, 54 N. Y. 249; p. 
 383 (infants). 
 
 Stumme, Eechler v. 
 
 Sturges, Bloomer v. 
 
 Sturgbss v. Bissell, 46 N. Y. 462 ; pp. 
 236 (damages), 293, 315 (evidence), 582 
 (practice). 
 
 Stuegisu. Hendricks, 51 JV. Y. 635; p. 311 
 (evidence). 
 
 V. New Jersey Steam Nav. Co., 35 
 
 N. Y. Supr. 251; pp. 109 (broker), 312 
 (evidence). 
 
 V. Spofpord, 45 N. Y. 446; pp. 144 
 
 (constitutional law), 542 (penal action). 
 
 K. — i-, 58 N. Y. 103 ; pp. 34 (appeal), 
 
 198 (costs). 
 
 Sturm v. Atlantic Mut. Ins. Co., 38 
 N. Y. Supr. 282; pp. 60 (appeal), 285, 
 286, 288, 297, 316 (evidence), 410, 411, 
 412, 413 (insurance), 578, 585, 588, 593 
 (practice), 757 (witness). 
 
 V. Williams, 38 N. Y. Supr. 325; pp. 
 
 306,308,310,312, 316, 319, 326 (evi- 
 dence), 411 (insurance), 589 (practice). 
 
 Stuyvesan-t v. Browning, 33 iV. Y. Supr. 
 203; pp. 460 (mechanic's lien), 473, 
 477, 478 (mortgage). 
 
TABLE OF CASES. 
 
 887 
 
 V. Grisslke, 12 Abb N. S. 6; pp. 266 
 
 (ejectment), 274 (estoppel). 
 
 , People ex rel., Grisslbr v. 
 
 Stuyvesant Bane, Matter of, 49 How. 
 133; p. 89 (banks). 
 
 V. Natl. Mechanics' Banking Assn., 
 
 7 Lans. 197; pp. 137 (clearing house), 
 262 (duress), 733 (waiver). 
 
 Sullivan v. Mayor, etc. of N. Y. City, 45 
 How. 152 ; reversed 47 How. 491 ; 53 
 N. Y. 652 ; pp. 143 (constitutional law), 
 258 (district) court). 
 
 V. , 48 How. 238 ; p. 258 (district 
 
 court). 
 
 Sickles v. 
 
 V. Sullivan, iHun, 198 ; p. 530 (par- 
 tition). 
 
 V. Warren, 43 How. 188; pp. 297,299, 
 
 304 (evidence). 
 
 Sulzbacher v. Davidson, 34 JV. Y. Supr. 
 145; pp. 62 (appeal), 171 (contract), 
 314 (evidence). 
 
 Sumner, Titus v. 
 
 Sunderland v. Westcott, 2 Sweeny, 260 ; 
 S. C, 40 How. 468. See Digest, vol. iv. 
 
 SuNDERLiN V. Bradstreet, 41 N. Y. 188 ; 
 p. 435 (libel). 
 
 Sun Mut. Ins. Co., Alexander v. 
 
 , McCaix v. 
 
 V. Talmadge, i Daly, 539; pp. 182 
 
 (conversion), 239 (damages). 
 
 , Willets v. 
 
 Superv'rs. of Chautauqua Co., People v. 
 
 OF Columbia Co., People v. 
 
 of Erie Co., People ex rel. An- 
 drews V. 
 
 OF Livingston Co., Newman v. 
 
 OF New York v. Tweed, 13 Ahh. 
 
 N. S. 152; pp. 22 (action), 695 (super.) 
 
 , Niagara Co., Dewey v. 
 
 SussDOEFF V. Schmidt, 55 N. Y. 319 ; pp. 
 108 (broker), 301 (evidence), 566 (plead- 
 ing)- 
 
 Sutton v. N. Y. Central and Hud. Riv. 
 R. R. Co., 4 Hun, 760; p. 494 (negl.) 
 
 Sutton, Parsons v. 
 
 SuYDAM V. Holden, 11 Abb. N. S. 329, n. ; 
 pp. 461, 463 (mechanic's lien). 
 
 w.Jackson, 54 N. Y. 450; p. 432 (land- 
 lord and tenant). 
 
 V. Smith, 52 N. Y. 383; pp. 543 (penal 
 
 action), 544 (Plank Road Co.) 
 
 , soverhill v. 
 
 , Wiles v. 
 
 SvENSON V. Atlantic Mail Steamship 
 
 Co., 33 N. Y. Supr. 277; affirmed 57 
 N. Y. 108; p. 456 (master and servant). 
 
 Swan, Chapman v. 
 
 , Medbury v. 
 
 , Phelps v. 
 
 Swart v. Livingston, 4 Hun, 267; p. 316 
 (evidence). 
 
 , TWINAM V. 
 
 SwARTWouT V. New Jersey Steamboat 
 Co., 48 N. Y. 209; affirming 46 Barb. 
 222. See Digest, vol. iii. 
 
 Swaetz, Bliss v. 
 
 , Halstead v. 
 
 Sweeney, Bernstein v. 
 
 , DORRIS V. 
 
 , Goodrich v. 
 
 , Kellogg v. 
 
 V. Sheridan, 37 N. Y. Supr. 587; pp. 
 
 716, 719 (trusts). 
 Sweeney, White v. 
 Sweet, Griswold v. 
 
 V. Titus, 4 Hun, 639; p. 540 (payment). 
 
 , Van Deusbn v. 
 
 , Woodworth v. 
 
 Sweetman v. Prince, 62 Barb. 256; pp. 255 
 
 (defense), 504 (new trial). 
 SwETT V. City of Troy, 12 Abb. N. S. 100; 
 ■ 62 Barb. 630; pp. 140 (compensation), 
 
 389 (injunction). 
 
 , Hawks v. 
 
 , Marston v. 
 
 Swift, Matter of,. 44 How. 247; p. 88 
 
 (bankruptcy). 
 
 , Drew v. 
 
 w. Massachusetts Mutual Life Ins. 
 
 Co., 3 Hun, 551; p. 324 (evidence). 
 
 , Prouty v. 
 
 Swords v. Edgar, 44 How. 139; affirmed 
 
 59 N. Y. 28; pp. 490 (negligence), 594 
 
 (practice). 
 V. Owen, 43 How. 176; 34 N. Y. Supr. 
 
 277; pp. 178 (contract), 253 (defense), 
 
 687 (statutes). 
 Syracuse, City of, McCarthy v. 
 , BiNG. & N. Y. R. R. Co., In re., 4 
 
 Hun, 311; p. 642 (R. R. Co.) 
 
 , COSTELLO V. 
 
 V. Collins, 41 N. Y. 641; affirming 3 
 
 Lans. 29. See Digest, vol. iv. 
 
 , LUMBARD V. 
 
 , SiZER V. 
 
 National Bank, Pattison v. 
 
 , Philadelphia & Oswego R. R. Co. 
 
 V. Gere, 4 Hun, 392; p. 639 (R. R. Co.) 
 Savings Institution, Salt Springs 
 
 Bank v. 
 
888 
 
 TABLE OP CASES. 
 
 T. 
 
 Taber v. Del., Lack. & W. K. R. Co., 4 
 
 Hun, 765; pp. 295 (evid,), 500 (negl.) 
 Taddiken v. Cantkell, 1 Hun, 710 ; p. 618 
 
 (practice). 
 Taft v. Carter, 59 Barb. 67; p. 489 (negl.) 
 
 V. Chapman, 50 N. Y. 445; p. 105 
 
 (6ona_;fde purchaser), 182 (conversion.) 
 
 V. WeighTj 47 How. 1; pp. 20 (actions), 
 
 62 (appeal), 438 (limitation of actions.) 
 
 Taggakt u. Murray, 53 N. Y. 233; p. 751 
 (will). 
 
 Taintor, Kbllt v. 
 
 Talcott v. Belding, 46 Hma. 419; 36 N. 
 Y. Supr. 84; pp. 18 (action), 275 (es- 
 toppel), 288 (evid.), 722 (undertaking). 
 
 , Miller v. 
 
 V. Rosenberg, 3 Daly, 203; S. C, 8 
 
 Abb. N. S. 287. See Digest, vol. iv. 
 
 Tallman v. Bressler, 65 Barb. 369; pp. 
 160 (contract), 361 (frauds, statute of), 
 554 (pleading). 
 
 V. Bbesler, 58 N. Y. 123; p. 604 
 
 (practice). 
 
 , cosgrove v. 
 
 , George v. 
 
 , HURD-W. 
 
 Talmadge, Baldwin v. 
 
 , Sun Mutual Insurance Co. v. 
 
 Talmage v. Nevins, 2 Sweeny, 38; p. 631 
 
 (principal and agent). 
 V. White, 35 N. Y. Supr. 218; pp. 163, 
 
 164 (contract). 
 
 , White v. 
 
 Tanner u. Hills, 48 N. Y. 662; p. 705 
 
 (tenant in common). 
 Taplin W.Wilson, 4 Hun, 244; p. 13 (action). 
 Tappan, Nimmons v. 
 Tate, Campbell v. 
 Tatham v. Commerce Ins. Co. of Albany, 
 
 4: Hun, 136; p. 398 (ins.urance). 
 Taussig v. Hart, 33 N. Y. Supr. 157; p. 
 
 53 (appeal). 
 
 V. , 49 N. Y. 301 ; p. 110 (broker). 
 
 „. , 58 N. Y. 425; p. 110 (broker.) 
 
 Taylor Will Case, 10 Abb. N. S. 300; pp. 
 
 294, 315 (evid.), 696 (surro.), 739 (will). 
 
 , Brewster «. 
 
 ^ — V. DoDD, 58 N. Y. 335 ; p. 747 (will). 
 
 -, uollard v. 
 
 , Fredericks v. 
 
 , Gamble v. 
 
 V. Gillies, 59 iV". Y. 881; p. 712 (trade. 
 
 mark). 
 
 V. Grant, 85 N. Y. Supr. 353 ; pp. 6 
 
 (action), 725 (usury). 
 
 V. , 36 N. Y. Supr. 259 ; p. 60 (ap- 
 peal). 
 
 , Grant v. 
 
 V. Guest, 45 How. 276 ; p. 630 (prin- 
 cipal and agent). 
 
 „. , 58 N. Y. 262; p. 356 (fraud). 
 
 , Hart v. 
 
 V. Hepper, 2 Hun, 646 ; p. 9 (action), 
 
 242 (dedication), 247 (deed), 333 (evid.) 
 
 V. Hoey, 36 N. Y. Supr. 402; p. 288 
 
 (evidence), 628 (principal and agent.) 
 
 , HOWLAND V. 
 
 V. Kelly, 5 Hun, 115; p. 365 (gift). 
 
 , Paddon v. 
 
 V. Remington, 51 N. Y. 663; p. 70 
 
 (arbitration). ' 
 
 V. Root, 48 N. Y. 687; p. 39 (appeal). 
 
 V. ScoviLL, 3 Hun, 301 ; p. 173 (cont.) 
 
 V. Shew, 54 N. Y. 75 ; p. 655 (removal 
 
 to TJ. S. court). 
 
 V. Spader, 48 N. Y. 664 ; pp. 352 
 
 (former adjudication), 731 (waiver). 
 
 V. Taylor, 43 N. Y. 578 ; pp. 4 (ac- 
 count.), 272 (equity), 608 (practice). 
 
 , Van Bokkelin v. 
 
 Teed v. Morton, 60- i\r. Y. 502; p: 748 
 (will). 
 
 Teerpenning v. Corn Exchange Ins. Co., 
 43 N. Y. 279 ; p. 326 (evidence). 
 
 Tefpt v. Munson, 63 Barb. 31 ; pp. 248 
 (deed), 471, 472 (mortgage). 
 
 V. , 57 N. Y. 97 ; pp. 274 (estoppel), 
 
 472 (mortgage). 
 
 Temple, Natl. Bank of Commonwealth v. 
 
 V. People, 4 L'ans. 119 ; pp. 215, 224 
 
 (criminal law). 
 
 Templeton v. People, 3 Hun, 357 ; afEd. 
 60 JSr. Y. 643 ; p. 220 (criminal law). 
 
 Ten Eyck, Com. Bank of Albany v. 
 
 V. Craig, 2 Hun, 452 ; pp. 30 (adverse 
 
 possession), 342 (execution), 471 (mort- 
 gage), 720 (trust). 
 
 Tenth Fatl. Bank of New York v. Dar- 
 ragh, 1 Hun, 111; pp. 59 (appeal), 315 
 (evidence). 
 
 V. Mayor, etc. of New York, 4 Hun, 
 
 429 ; pp. 508 (N. Y. city), 541 (payment). 
 
 , McNeil v. 
 
 V. Sanger, 42 How. 179 ; p. 87 (bankr.) 
 
 , Warren v. 
 
 Tekbell, Long Island Ferry Co. v. 
 
TABLE OF CASES. 
 
 889 
 
 Tkrre Hatjte and Bichmond K. R. Co., 
 
 Jones v. 
 Tf.rrett v. Cbombie, 6 Lans. 82 ; modified 
 
 55 N. Y. 683 ; pp. 260 (dower), 715 
 
 (trust). 
 V. New York and B. Steam Saw 
 
 Mill and Lumber Go., 49 N. Y. 666 ; 
 
 p. 245 (deed). 
 Terry, McCarty v. 
 V. Wait, 47 How. 52 ; 48 N. Y. 657 ; 
 
 pp. 312 (evidence), 360 (frauds, statute 
 
 of), 541 (payment). 
 
 V. , 56 N. Y. 91 i p. 46 (appeal). 
 
 V. Wiggins, 47 N. Y. 512 ;af£g. 2 iores. 
 
 272. See Digest, vol. iv. 
 
 , Wood v. 
 
 Terwilliger v. Seals, 6 Lans. 403 ; pp. 
 
 347 (factor), 733 (waiver). 
 V. Brown, 44 N. Y. 237 ; affg. 59 Barb. 
 
 9 ; pp. 342 (executors and administra- 
 tors), 719 (trusts). 
 
 , HOYT V. 
 
 , TiLSONU. 
 
 Thacheb, PBOPLE-ea; rel. Judson v. 
 Thackeb v. Henderson, 63 Barb. 271 ; pp. 
 
 22 (action), 72 (assignment), 368 (guard. 
 
 and ward). 
 Thatcher, People ex rel. Judson o. 
 Thaitle, Kree3:ler v. 
 V. EiTTEB, 13 Abb. N. S. 439 ; pp. 156 
 
 (contempt), 576 (practice). 
 Thayer v. Agricultural Ins. Co., 5 Hun, 
 
 566 ; p. 401 (insurance). 
 
 , Great West. Ins. Co. w. 
 
 , Maryott v. 
 
 , People ex rel. Jermain v. 
 
 , Tuton v. 
 
 Third Avenue R. E. Co., Barrett v. 
 
 , Hamilton v. 
 
 , Isaacs v. 
 
 V. Mayor, etc. of New York, 54 N. 
 
 Y. 159; p. 387 (injunction). 
 
 , PiXLEY V. 
 
 , Rockwell v. 
 
 Third Natl. Bank of Syracuse v. Mc- 
 Einstry, 2 Hun, 443 ; p. 201 (costs). 
 
 Thomae, Hays v. 
 
 T50MA8, In matter of, 1 Hun, 473; pp. 
 272 (equity), 532 (partition). 
 
 , Matter of, 10 Abb. N. S. 114; pp. 354 
 
 (former adj.), 394 (insolv. debtor). 
 
 V. Bartow, 48 N. Y. 193; pp. 73 (as- 
 signment), 173 (contract), 207 (oovt.), 
 252 (defame). 
 
 , Frankinstbin v. 
 
 , Greene v. 
 
 «. Kibchbr, 15 Abb. N. S. 342; pp. 
 
 157 (contempt), 613 (practice). 
 
 «. Loaneb's Bank of New York, 38 
 
 N. Y. Supr. 466; p. 561 (pleading). 
 
 , Natl. Bank of Salem v. 
 
 V. Payne, 2 Sweeny, 605; affd. 47 N. 
 
 Y. 675 ; p. 43 (appeal). 
 
 , RORKE V.' 
 
 , TiNKHAM V. 
 
 , Waller v. 
 
 Thompson v. Allen, 7 Lant. 439 ; pp. 375 
 
 (highway), 524 (nuisajaoe)w 
 V. Am. Ton. Life and S. Ins. Co., 46 
 
 N. Y. 674 ; pp. 404, 406 (insurance). 
 V. Bower, 60 Barb. 463; pp. 13, 14, 
 
 (action). 
 Thompson v. Brown, 34 N. Y. Supr. 1 ; p. 
 
 Ill (broker). 
 V. Burhans, 61 Barb. 260; pp. 265, 267, 
 
 268 (ejectment). 
 
 , Chapin v. 
 
 V. Clark, 4 Hwn, 164; pp. 355 (former 
 
 adj.), 442 (lis. pen.) 
 
 u. Egbert, 1 Hun, 484; p. 267 (ejeo.) 
 
 V. Erie Ry. Co., 42 How. 68 ; 11 Ahb. 
 
 N. S. 188; pp. 189 (eorp.), 616 (R. R. Co.) 
 V. , 45 N. Y. 468 ; pp. 529 (parties), 
 
 552, 558, 559, 561 (pleading). 
 V. Fargo, 44 How. 176; 49 N. 
 
 p. 19 (action). 
 
 V. , 48 How. 
 
 288 (evidence). 
 
 , Frink v. 
 
 , GiLMAN V. 
 
 , Gleadbll v. 
 
 , Goodrich v. 
 
 , Hayes v. 
 
 , Hultslandeb v. 
 
 V. Leabtedt, 3 Hun, 395; p. 737 (will), 
 
 , Leavitt v. 
 
 , Manhattan Brass and Manf. Co. «. 
 
 , Parmelee v. 
 
 V. Pine, 5 Hun, 647; p. 66 (appeal). 
 
 , Ryan v. 
 
 Thomson, Gleadbll ,». 
 , Merchants' Bank v. 
 
 - V. Tracy, 60 N. Y. 31 ; pp. 50 (app.), 
 341 (executors and adm.), 638 (prohib., 
 writ of). 
 
 V. , 60 JSr. Y. 174; p. 341 (exec.) 
 
 V. Wilcox, 7 ians. 376; pp. 246 (deed), 
 
 523 (notice). 
 Thori^, McCrbady v. 
 
 , Millard v. 
 
 V. Sheil, 15 ^i6. N. S. 81, n. ; pp. 417 
 
 (jud. sale), 738 (will). 
 
 Y. 188; 
 93; 2 Hun, 379; p- 
 
890 
 
 TABLE OF CASES. 
 
 Thornall v. Pitt, 5» N. Y. 683; revg. 36 
 
 N. Y. Supr. 379; p. 588 (practice). 
 Thornton v. Atjtenkeith, 55 N. Y. 659 ; 
 
 p. 42 (appeal). 
 V. St. Paul and Chi. Rt. Co., 45 How. 
 
 416 ; pp. 270 (equity), 418 (jurisd.) 
 Thorp v. Hammond, 42 How. 314; pp. 28 
 
 (admiralty), 489 (negl.), 675 (ships, etc.) 
 
 , Kennedy v. 
 
 V. Keokuk Coal Co., 48 N. Y. 250; 
 
 affg. 47 Barb. 439; pp. 252 (defense), 
 
 563 (pleading) . 
 Thorpe v. Waddingham, and Todd v. 
 
 Same, 3 Dalt/, 275; p. 615 (practice). 
 Trasher v. Bentlet, 59 iV. Y. 649; p. 75 
 
 (assignment for benefit). 
 Thtjrber v. Blanck, 50 N. Y. 80 ; p. 14 
 
 (action), 618 (practice). 
 
 V. Chambers, 4 Hun, 721; pp. 469 
 
 (mortgage), 531 (partition), 600 (praot.), 
 753 (will). 
 
 V. , 60 N. Y. 29; pp. 38, 53 (app.) 
 
 ». Harlem, Br. M. & F. R. R. Co., 60 
 
 N. Y. 326 ; pp. 35 (appeal), 498 (negl.), 
 
 591 (practice). 
 Thurman, Burnham v. 
 V. Mosher, 1 Hun, 344 ; pp. 288, 304 
 
 (evidence). 
 Thurston, Allyn v. 
 
 V. City of Elmira, 10 Aib. N. S., 
 
 119; pp. 392 (inj.), 486 (mun. corp.), 
 559 (pleading). 
 
 , HiCKOX V. 
 
 TiBBALS, Willis v. 
 
 TiCE V. Gallup, 2 Hun, 446; p. 632 (prin. 
 and agent). 
 
 TiEDMAN V. O'Brien, 36 N. Y. Supr. 539 ; 
 pp. 240 (damages), 584 (practice). 
 
 Tiffany v. Bowerman, 2 Hun, 643 ; p. 561 
 (pleading). 
 
 V. Clark, 58 N.Y. 632; p. 718 (trusts). 
 
 V. St. John, 5 Lans. 153 ; p. 181 (con- 
 version), 706 (tender). 
 
 TiFFT V. City of Buffalo, 65 Barb. 460; 
 pp. 28 (action), 384 (injunction). 
 
 , Colie v. 
 
 V. HoRTON, 53 N. Y. 377; p. 349 (fix- 
 tures). 
 
 V. Moor, 59 Barb. 619 ; pp. 60 (appeal), 
 
 97 (bUls and notes), 584 (practice), 726 
 (usury). 
 
 , Nichols v. 
 
 V. Phcenix Mut. Life Ins. Co., 6 Lans. 
 
 198; pp. 404 (insurance), 465 (money 
 paid). 
 
 TiGHE, People v. 
 
 Tilden, Parsons v. 
 
 Tillotson v. Wolcott, 48 N. Y. 188; pp. 
 
 336 (execution), 613 (practice). 
 Tilson v. Terwilliger, 56 N. Y. 273; pp. 
 
 314 (evidence), 363 (frauds, statute of), 
 
 589 (practice). 
 TiLTON V. Beechek, 48 How. 175 ; .59 N. Y. 
 
 176 ; pp. 46 (appeal), 571 (practice). 
 Tim u. Tim, 47 How. 253; p. 555 (pleading). 
 
 TiMBERMAN, CUMMINGS W. 
 TiMERSON, RaYNOR V. 
 
 Timpson's Estate, 15 ^66. JV.S. 230; pp. 
 
 260 (dower), 343 (exrs. and adm.), 696 
 
 (surrogate), 746 (will). 
 Tinkham v. Thomas, 34 N. Y. Supr. 236 ; 
 
 p. 594 (practice). 
 TiNNEY V. Boston and Albany'R. R. Co., 
 
 52 N. Y. 632 ; affg. 62 Barb. 218 ; pp. 
 
 492 (negl.), 645 (R. R. Co.) 
 V. New Jersey Steamboat Co., 12 
 
 Abb. N. S.l; 5 Lang. 507; pp. 238 (dar 
 
 mages), 324 (evidence), 755 (witness). 
 TiNSDALB, People v. 
 TiNSON ». Welch, 51 N. Y. 244; p. 598 
 
 (practice). 
 Titus, Marsh v. 
 
 , McDonald v. 
 
 V. Pres't., etc. of Gt. W'n. Turnpike 
 
 R. Co., 5 Lans. 250; pp. 186 (corpor'n.), 
 
 523 (notice), 632 (prin. and agent). 
 : V. Sumner, 44 N. Y. 266; p. 306, 325 
 
 (evidence), 676 (slander). 
 
 , Sweet v. 
 
 Tobacco Manuf'g. Co., People v. 
 
 ToBEY, Gibson v. 
 
 Tochman v. Brown, 33 N. Y. Supr. 409 ; 
 
 pp. 60 (appeal), 165 (contract), 301 (evi- 
 dence), 582 (practice). 
 Todd, Allen v. 
 V. Ames, 60 Barb. 454; p. 379 (husband 
 
 and wife). 
 
 , Bowling Green Savings Bank v. 
 
 , Griffin v, 
 
 w.Lambden,41 How. 280; 10 Abb. N. S. 
 
 383; p. 576 (practice). 
 V. Todd, 3 Hun, 298; pp. 59 (appeal), 
 
 274 (estoppel), 372 (highway). 
 
 V. Warner, 48 How. 234; p. 326 (evid.) 
 
 Toffey v. Williams, 3 Hun, 217; p. 613 
 
 (practice). 
 Toll v. Alvord, 64 Barb. 568; pp. 273 
 
 (escape), 303 (evidence), 353 (form, adj.) 
 ToMLiNSON, Hanover Fire Ins. Co. v. 
 V. Mayor, etc. of New York; 44 N. Y. 
 
 601; p. 46 (appeal). 
 Tompkins, Cheesebrough v. 
 
TABLE OF OASES. 
 
 891 
 
 V. Hodgson, 2 Hun, 146; p. 484 (mun. 
 
 corp.) 
 
 V. Lee, 59 N. Y. 662; p. 47 (appeal). 
 
 V. Snow, 63 Barb. 525; pp. 30 (adverse 
 
 possession), 274 (estoppel), 433 (land- 
 lord and tenant). 
 Toole, Osgood v. 
 TooMEY V. Andrews, 48 How. 332; p. 564 
 
 (pleading). 
 Topping, Fitzgerald v. 
 ToRPEY V. Williams, 3 Daly, 162 ; pp. 125, 
 
 126 (carrier). 
 Torrance v. Conger, 46 N. Y. 340; p. 244 
 
 (deed), 329 (evidence). 
 ToRRENCE V. Conger, 55 N. Y. 680; p. 244 
 
 (deed). 
 
 , Seward w. 
 
 Tohret, Bissell ». 
 
 ToRRY v. Black, 58 N. Y. 185 ; reversing 
 
 65 Barb. 414; pp. 298 (evidence), 368 
 
 (guardian and ward), 650 (release), 736 
 
 (waste). 
 ToTTEN V. Phipps, i2 N. Y. 354; p. 497 
 
 (negligence). 
 Totjrnade v. Methfessel, 3 Hun, 144; 
 
 p. 537 (partner). 
 TowLE V. Covert, 15 Abb. N. S. 193 ; p. 
 
 418 (jurisdiction). 
 Town u. Stetson, 3 Daly, 53; afEg. 5^66. 
 
 N. S. 218. See Digest, vol. iv. 
 Town Auditors of Castleton, People v. 
 TowNSEND, In matter op, ^ Hun, SI; p. 
 
 473 (mortgage). 
 
 V. Bakgy, 57 iV. Y. 665; p. 240 (damgs.) 
 
 V. Bissell, 4 Hun, 297 ; p. 262 (easmt.) 
 
 V. Brundage, 4 Hun, 264 ; p. 583 
 
 (practice). 
 
 , Clinton v. 
 
 V. Davis, 4 Hun, 297; p. 727 (vendor 
 
 and purchaser). 
 V. Glens Falls Ins. Co., 10 Abb. N. S. 
 
 277; 33 N. Y. Supr. 130; p. 602 (pract.) 
 V. Hayt, 51 N.Y. 656 ; affirming S. C, 
 
 57 Barb. 334; See Digest, vol. iv. 
 — ^ V. Hendricks, 2 Sweeny, 503 ; S. C, 39 
 
 How.i75; reversed 40 Saw. 143. See 
 
 Digest, vol. iv. 
 . V. Ingersoll, 43 How. 276; 12 Abb. 
 
 N. S. 354; pp. 342 (executors and ad- 
 ministrators), 442 (lim. of actions). 
 
 , Laird v. 
 ■ V. Merchants' Ins. Co., 45 How. 501 ; 36 
 
 N. Y. Supr. 172; pp. 311, 323* (evidence). 
 
 TOWNSEND V. NaRRAGANSETT FiRE AND 
 
 Marine Ins. Co., 46 How. 40 ; 36 N. Y. 
 Supr. 170; pp. 62 (appeal), 323 (evid.) 
 
 V. N. Y. Central & Hud. Kiv. R. R. 
 
 Co., 56 N. Y. 295; pp. 457 (master and 
 
 servant), 647 (R. R. Co.) 
 
 V. , 4 Hun, 217 ; p. 647 (R. R. Co.) 
 
 V. Peyser, 45 flow. 211; 14 Abb. N. 8. 
 
 324 ; 4 Daly, 556 ; pp. 62 (appeal) , 201 
 
 (costs) . 
 
 V. Shepard, 64 Barb. 39; p. 669 (sale). 
 
 Townshend, Foster v. 
 
 Tracey, Payne v. 
 
 Tracy v. Altmyer, 46 N. Y. 598 ; pp. 34, 
 
 41 (appeal), 506 (new trial). 
 V. Ambb, 4 Lans. 500 ; pp. 579 (prac- 
 tice), 742 (will). 
 V. Corse, 58 N. Y. 143 ; 49 How. 323 ; 
 
 affg. 45 How. 316; pp. 414 (internal 
 
 revenue), 416 (jud. sale). 
 V. McManus, 58 N. Y. 257 ; p. 308 
 
 (evidence). 
 
 , Thomson v. 
 
 Tradesman's Nat. Bank v. McFeely, 61 
 
 Barb. 522 ; p. 545 (pleading). 
 
 V. , 3 Hun, 699; p. 608 (practice). 
 
 Train v. Holland, etc. Ins. Co., 1 Hun, 
 
 527 ; p. 400 (insurance). 
 Trask, Hoogland v. 
 Traveler's Ins. Co., Malloryu. 
 Travis, Bowman v. 
 Treacy, In matter op, 59 Barb. 525 ; p. 
 
 518 (N. Y. city, etc.) 
 Treadway, Turner v. 
 Treadwell, Bush v. 
 
 , Hoffman v. 
 
 Treat v. Hathorn, 3 Hun, 646 ; p. 58 (ap- 
 peal). 
 Trbgear v. Dry Dock, etc. R. R. Co., 14 
 
 Abb. N. S. 49 ; p. 499 (negligence). 
 Tremper v. Conklin, 44 N. Y. 58 ; p. 333 
 
 (evidence). 
 Trenok v. Jackson, 46 How. 389 ; 15 Abb. 
 
 N. S. 115; pp. 387, 389 (inj.), 427 
 
 (land, and ten.), 484 (municipal corp.) 
 
 , Powers v. 
 
 Trevor, Nowlan v. 
 
 Tribune Asso., McCue v. 
 
 Trim v. Willoughby, 44 How. 189 ; p. 460 
 
 (mechanic's lien). 
 Trimm v. Marsh, 2 Hun, 383 ; p. 203 (costs). 
 V. , 54 N. Y. 599; affg. 3 Zans. 509; 
 
 pp. 338 (execution), 471 (mortgage). 
 Trimmer, Briant v. 
 Tripp v. Pulver, 2 Hun, 511 ; pp. 10, 17 
 
 (action). 
 Triumph Ins. Co., Standard Oil Co. v. 
 Trolan v. Fagan, 48 How. 240 ; pp. 570, 
 
 605 (practice). 
 
892 
 
 TABLE OF CASES. 
 
 TKOUDEif, "Van Ettkn v. 
 Tkout, Lanz v. 
 
 Tkoxell v. Hatnes, 49 How. 517; p. 623 
 (practice). 
 
 , Ketcham ». 
 
 Trot, City of, Brenn v. 
 
 , DURKIN V. 
 
 , MOSBT V. 
 
 , kousseau v. 
 
 . Swett v. 
 
 V. Winters, 2 Hun, 63 ; pp. 488 (mu- 
 nicipal corporation), 714 (Ti'oy). 
 
 Troy Iron & Nail Factory, Corning v. 
 
 Troy and Lans. R. R. Co., Mayor, etc. 
 OF Troy v. 
 
 , Prest. Union Bridge Co. v. 
 
 Troy Woollen Co., Cooper v. 
 
 True, Bowen v. 
 
 Truesdell v. Booth, 4 Hun, 100 ; p. 432 
 (landlord and tenant). 
 
 Truex v. Erie Ry. Co., 4 Lans. 198 ; p. 128 
 (carrier). 
 
 Trull, Fowler v. 
 
 , Hemphill v. 
 
 Truslow, Wetmore v. 
 
 Trust, Goubaud v. 
 
 Trustees of Auburn Theological Semi- 
 nary V. Calhoun, 62 Barb. 881 ; p. 738 
 (will). 
 
 OF College Point v. Dennett, 2 Hun, 
 
 669 ; p. 810 (endenoe). 
 
 OP Columbia College v. Lynch, 47 
 
 How. 273 ; revd. 39 N. Y. Supr. 372 ; 
 pp. 208 (covenant), 385 (injunction). 
 
 of Village of Dansville, People ex 
 
 rel. Faulkner v. 
 
 OF Fund for Episcopate of Diocese 
 
 of Central New York v. Colgrove, 
 4 Hun, 362 ; p. 748 (wiU). 
 
 OF ViL. OF Havana v. Board op 
 
 SuPRS. of Schuyler Co., 2 Hun, 600; 
 pp. 22, 28 (action), 148 (constl. law). 
 
 of Village op Ogdensburgh, People 
 
 ex rel. Westbrook v. 
 OF Palmyra, People ex rel. Cuyler v. 
 
 OF Reformed Protestant Dutch 
 
 Church op Rochester v. Harden- 
 bergh, 48 How. 414 ; p. 161 (contract). 
 
 op Union College v. Wheeler, 59 
 
 Barb. 585 ; 5 Lans. 160 ; pp. 108 [bona 
 fide purchaser), 523 (notice), 715 (trust). 
 
 op Vil. of Canajohabie v. Buel, 48 
 
 How. 155 ; pp. 13 (action), 483 (muuici- 
 pal corporation). 
 
 Tryon v. Baker, 7 Lans. 511 ; pp. 17 (ac- 
 tion), 59 (appeal). 
 
 Tubbs «. Hall, 12 Ahb. N. S. 237 ; pp. 196 
 
 (costs), 577 (practice). 
 , People ex rel. Erie and Gen. Val. 
 
 R. R. Co. v. 
 Tucker, Fulton Village of, v. 
 , hoppock v. 
 
 , McKlNLEY V. 
 
 — - V. Meeks, 2 Sweeny, 736 ; affd. 52 N. 
 
 Y. 638 ; pp. 243, 244 (deed). 
 V. Stevens, 2 Hun, 424 ; p. 311 (avid.) 
 
 V. WooLSBY, 6 Lans. 482 ; 64 Barb. 
 
 142 ; pp. 300 (evidence), 627 (prin. and 
 agent). 
 
 TuGWELL V. Bussing, 48 How. 89 ; pp. 338 
 (execution). 
 
 V. , 2 Hun, 160 ; pp. 839 (execu- 
 tion), 672 (sheriff). 
 
 TuNNiCLiFP, Rockwell v. 
 
 TtfPPER, Kbin i>. 
 
 TuRNBULL V. Martin, 45 N. Y. 600 ; p. 36 
 (appeal). 
 
 V. Osborne, 12 Abb. N. S. 200; pp. 135 
 
 (checks), 294, 820 (evidence). 
 
 Turner, Cooper ». 
 
 V. Crichton, 58 N. Y. 641; pp. 39 (ap- 
 peal), 624 (practice). 
 
 V. Hadden, 62 Barb. 480; p. 107 (bonds). 
 
 V. See, 57 N. Y. 667 ; p. 801 (evi- 
 dence). 
 
 V. Treadway, 53 N. Y. 650 ; p. 99 
 
 (bills and notes). 
 
 «. Van Riper, 43 How. 83; pp. 197, 
 
 198 (costs), 683 (statutes). 
 
 , White v. 
 
 TuBNURB V. Hohenthal, 36 N. Y. Supr. 
 79 ; p. 635 (principal and surety). 
 
 Tuthill, Moffett v. 
 
 , Weller v. 
 
 TuTON V. Thayer, 47 How. 180 ; p. 366 
 (guaranty). 
 
 TuTTLE V. Hannbgan, 54 N. Y. 686 ; affg. 
 i Daly, 92; pp. 234 (damages), 292 (evi- 
 dence), 547 (pleading). 
 
 V. Heavy, 59 Barb. 384 ; p. 368 (guar- 
 dian and ward). 
 
 , Pierce v. 
 
 Tweed's Case, 13 Abb. N. S. 370; n. ; p. 
 218 (criminal law). 
 
 , Board op Sups, of New York ». 
 
 V. Davis, 47 How. 162 ; fully reported 
 
 1 Hun, 252; pp. 447 {mandamus), 606 
 (practice). 
 
 , GRElftf V. 
 
 , People v. 
 
 , Sups, of New York v. 
 
 Tweedy, Ferguson v. 
 
TABLE OF CASES. 
 
 893 
 
 TwiNAM V. SwAKT, 4 Lans. 263; pp. 18 
 (action), 61 (appeal), 240 (damages), 280 
 (estoppel), 337 (execution). 
 
 Tyler v. Ames, 6 Lans. 280; p. 174 (cont.) 
 
 V. Church, 54 N. Y. 632 ; p. 361 
 
 (frauds, statute of). 
 
 V. Gould, 48 N. Y. 682 ; p. 74 (assign- 
 ment). 
 
 , Lambden v. 
 
 , Miller v. 
 
 Tyng v. Com. Warehousk Co., 58 N. Y. 
 
 308 ; pp. 44 (appeal), 238 (damages), 723 
 (usury). 
 
 V. Fields, 3 Hun, 75; pp. 164 (con- 
 tract), 292, 326 (evidence). 
 
 , Indianapolis, P. & Chi. R. R. Co. ». 
 
 V. United States Submarine & Tor- 
 pedo Boat Co., 1 ifun, 161; again, id. 
 309; p. 301 (evidence). 
 
 ». , 49 How. 360; 60 N. Y. 644; 
 
 affirming 1 Hun, 161; p. 43 (appeal). 
 
 Tysen, Wayland v. 
 
 u. 
 
 Underhill, Bowne v. 
 
 , Johnson v, 
 
 V. Vandervoort, 56 N. Y. 242 ; pp. 
 
 586 (practice), 751 (will). 
 
 Underwood, Barnes «. 
 
 V. Farmers' Joint Stock Inb. Co., 57 
 
 N.Y. 500; 48 Hom. 367; pp. 400 (in- 
 surance), 593 (pract.), 733, 734 (waiver). 
 
 V. Green, 56 N. Y. 247 ; affirming 36 
 
 N. Y. Supr. 481; pp. 37 (appeal), 611 
 (practice). 
 
 Unger v. Forty-second Street, etc. R. 
 R. Co., 51 N. Y. 497; pp. 488 (negU- 
 
 V. People's Fire Insurance Co., 4 
 
 DaJy, 96 ; pp. 283 (evidence), 399 (ins.) 
 
 Union Dime Savings Institution v. 
 
 DuRYEA, 3 Hun, 210; p. 480 (mortgage). 
 OF New York, v. Osley, 4 Hun, 657 ; 
 
 p. 480 (mortgage). 
 Union Ferry Co. op Brooklyn, Dela- 
 
 FIELD V. 
 
 , Hoffman v. 
 
 Union Manufacturing Co. v. Byington, 
 
 1 Hun, 44; pp. 55 (appeal), 288 (evid.) 
 
 , Lester v. 
 
 Union Mutual Insurance Co. , Baker v. 
 Union National Bank of New York 
 
 City v. Mayor, etc. of New York, 51 
 
 N. Y. 638; p. 703 (taxes). 
 Union National Bank of Pittsburgh v. 
 • "Wheeler, 36 N. Y. Supr. 536; pp. 92 
 
 (bills and notes), 282 (evidence). 
 
 V. , 60 N. Y. 612; affirming 36 
 
 JSr. Y. Supr. 536; p. 725 (usury). 
 
 Union National Bank of Troy v. Sixth 
 
 National Bank of New York, 43 
 N. Y. 452; p. 467 (money paid). 
 
 Union Pacific R. R. Co., Fisk v. 
 
 Union Paper Collar Co. v. Metropol- 
 itan Paper Collar Co., 3 Daly, 171; 
 p. 572 (practice). 
 
 United States v. Graff, 4 Hun, 634 ; pp. 
 419 (jurisdiction), 618, 619 (practice). 
 
 U. S. & Brazil Steamship Co., Knell v, 
 
 U. S. Express Co., Reedb v. 
 
 United States Ins. Co. , Cubhman v. 
 
 U. S. Life Ins. Co., Evans b. 
 
 U. S. Metallic Spring, etc. Co., Van 
 Pelt v. 
 
 U. S. Submarine & Torpedo Boat Co., 
 Tyng v. 
 
 U. S. Telegraph Co., Baldwin v. 
 
 , Breese v. 
 
 , Waring v. 
 
 Updike v. Abel, 60 Barb. 15; pp. 312 (evi- 
 dence), 357 (fraud), 505 (new trial). 
 
 , Fletcher v. 
 
 Upton v. Bedlow, 42 How. 121 ; 4 Daly, 
 216 ; p. 590 (practice). 
 
 , Monroe v. 
 
 Urban ». Guthrie, 51 N. Y. 664; pp. 279. 
 (estoppel), 662 (sale). 
 
 Utica, City of, v. Blakeslee, 46 How. 
 165 ; pp. 483 (mun. corp.), 726 (Utica). 
 
 , Mann v. 
 
 Utica & Blk. Riv. R. R. Co., Blodgett v. 
 
 , Chapman v. 
 
 , Salter v. 
 
 Utica, Ithaca, etc. R. R. Co., Rhodes v. 
 
 Utley, Goldberg v. 
 
 Utt, Allaback v. 
 
894 
 
 TABLE OF OASES. 
 
 Y. 
 
 Vail, Deposit, Village op, v. 
 
 V. Lake, 4 Hun, 653; p. 574 (practice). 
 
 Valentine, Skinner v, 
 
 , Woodruff v. 
 
 Vallot.ton, Dougherty v. 
 
 Van Alen v. American Natl. Bank, 52 
 
 N. Y. 1 ; affirming S. C, 3 Lans. 577. 
 
 See Digest, vol. iv. 
 
 V. Hervins, 5 Hun, 44 ; p. 696 (surro.) 
 
 Van Allen v. American Natl. Bank, 10 
 
 Abb. N. S. 331; p. 65 (appeal). 
 Van Allen v. Farmers' Joint Stock Ins. 
 
 Co., 4 Hun, 413; p. 400 (insurance). 
 
 , LOUCKS V. 
 
 , People ex rel. Garling v. 
 
 Van Alstine v. Norton, 1 Hun, 537; p. 560 
 (pleading). 
 
 Van Antwerp, In Matter op, 56 N. Y. 
 261; pp. 112 (Brooklyn), 143, 152 (con- 
 stitutional law). 
 
 Van Bokkelin v. Taylor, 3 Hun, 138 ; p. 
 319 (evidence). 
 
 Van Boskerck ». Herrick, 65 Barb. 250 ; 
 p. 719 (trusts). 
 
 , Lambertson v. 
 
 Van Brunt v. Applegate, 44 N. Y. 544 ; 
 p. 536 (partner). 
 
 , Marine Bank op Chicago v. 
 
 Van Buren v. Canal Boat E. McChes- 
 NEY, 49 How. 178; p. 28 (admiralty), 
 457 (master and serraut), 674 (ships, 
 etc.) 
 
 , DUNTZY V. 
 
 , GiBBS V. 
 
 V. Kepormed Church op Ganse- 
 
 VOORT, 62 Barb. 495; pp. 283, 329 (evi- 
 dence), 651 (religious corporations). 
 
 V. Stokes, 1 Hun, 484; p. 724 (usury). 
 
 Van Campenw. Knight, 63 Barb. 205; pp. 
 679 (specific perf.), 726 (vendor and 
 pur.) 
 
 Van Cliep, Board op Sups, op Richmond 
 Co. v. 
 
 Van Cott, Field v. 
 
 Van DeBogart, Yates v. 
 
 Van Denburgh v. Brest., etc. op Green- 
 bush, 4 Hun, 795 ; p. 458 (mechs. lien.) 
 
 Vandeebilt, Chase v. 
 
 , Erie Railway Co. v. 
 
 , Webb v. 
 
 Vandercook v. Cohobs Savings Inst., 5 
 Hun, 641; pp. 472, 482 (mortgage). 
 
 Vandeeheyden, Cottlk v. 
 
 Van Deb Mindbn v. Elsas, 36 N. Y. Supr. 
 
 66 ; p. 547 (pleading). 
 Vanderpoel, Alger ». 
 
 , Dickinson v. 
 
 Vandeevere, Keeler v. 
 
 Vandervoort, Underhill v. 
 
 Van Derzee, Gibson v. 
 
 Van Dbusen v. Sweet, 51 iV. F.378; p. 267 
 
 (ejectment), 275 (estop. ), 287 (evid.) 
 Van Deventer, Lawrence v. 
 Van de Walker, Bosworth v. 
 
 V. OsMER, 65 Barb. 556; p. 356 (fraud). 
 
 Van Dusen v. Worrell, 36 How. 286 ; p. 
 
 321 (evidence). 
 Van Dyke v. Maguirb, 57 N. Y. 429; p. 
 
 304 (evidence). 
 Van Epps, In matter op, 56 N. Y. 599 ; p. 
 
 272 (equity). 
 
 , Am. Life Ins. and Trust Co. v. 
 
 Van Etten v. Troudbn, 1 Hun, 432; pp. 3 
 
 (ace. and sat.), 686 (prin. and sure.) 
 Van Evrea, Settle v. 
 Van Horn, N. T. and Oswego M. R. R. 
 
 Co. o. 
 Van Keuren, Cole v. 
 
 V. CoRKiNS, 4 Hun, 129 ; p. 477 (mort.) 
 
 Van Kuren v. Saxton, 3 Hun, 547; p. 
 
 160 (cont.) 
 Van Leuvan v. First Natl. Bank op 
 
 Kingston, 6 Lans. 373; afEd. 54 N. T. 
 
 671; pp. 84, 85 (banks), 180 (conv.) 
 Van Lien v. Scoville Manf. Co., 14 Abb. 
 
 N. S. 74; 4 Daly, 554 ; pp. 298 (evid.), 
 
 499 (negUgenoe), 579 (practice). 
 Van Liew v. Johnson, 4 Hun, 415 ; p. 172 
 
 (contract). 
 Van Loan, Clow v. 
 Van Loon v. Lyon, 4 Daly, 149 ; pp. 259 
 
 <dist. court), 685 (stats.) 
 Vanneman v. Powers, 56 N. Y. 39 ; revg. 
 
 7 Lans. 181; pp. 174 (contract), 357 
 
 (fraud), 630 (principal and agent). 
 Van Ness v. Fisher, 5 Lans. 236; pp. 234 
 
 (damages), 537 (partner.) 
 Van Nort, People ex rel. Mahopac 
 
 Manpg. Co. v. 
 
 , Navano v. 
 
 , Trundy v. 
 
 Van Nostrand v. Moore, 52_iV. Y. 12; pp. 
 
 744, 745 (will). 
 V. N. Y. Guaranty and Indemnity 
 
 Co., 39 N. Y. Supr. 73; pp. 169 (cont.), 
 
 303 (evidence), 567 (pleading). 
 
TABLE OP CASES. 
 
 895 
 
 , Smith v. 
 
 Van Ounda, Smith v. 
 
 Van Orden, Ham v. 
 
 Van Pelt v. Ottek, 2 Sweeny, 202; pp. 56 
 
 (appeal), 321 (evidence). 
 
 , QuiNN r. 
 
 V. U. S. Metallic Spring, etc. Co., 
 
 13 Alb. N. S. 325; 35 N. Y. Supr. Ill; 
 
 pp. 193 (corporation), 694 (supr. court). 
 
 , Wilson v. 
 
 Van Praag, Salomon v. 
 
 Van Raust ti. N. Y. College op Vet. 
 
 Surgery, 4 Hun, 620 ; p. 384 (inj.) 
 Van Heed, Foster v. 
 Van Rensselaer v. Aiken, 44 N. Y. 126 ; 
 
 revg. 44 Barh. 547; pp. 14 (action), 73 
 
 (assignment). 
 V. Albant and S. R. R. Co., 1 Hun, 
 
 507; pp. 208 (covt.), 262 (easem.) 
 
 , Coleman v. 
 
 , Hamilton v. 
 
 , Witbeck v. 
 
 Van Riper, Turner ». 
 
 Van Saun, Bureham i>. 
 
 V. Farley, 4 Daly, 165; p. 343 (exrs. 
 
 and adm.) 
 Van Schaick v. Hudson Riv. R. R. Co., 43 
 
 N. Y. 527; pp. 501 (negl.), 579 (pract.) 
 Van Sohutver v. Mulford, 59 N. ¥. 426 ; 
 
 pp. 530 (partition), 743 (will). 
 Van Size, Furman v. 
 V. Long Isl. R. R. Co., 3 Hun, 613; p. 
 
 642 (R. R. Co.) 
 Van Slyke v. Hyatt, 46 N. Y. 259 ; p. 39 
 
 (appeal). 
 
 , Jackson v. 
 
 Van Slyck v. Snell, 6 Lans. 299; pp. 67 
 
 (appeal), 714 (trespass). 
 Van Steenburgh, Jewell v. 
 Van Tabsell, Anderson v. 
 Van Tuyl, N. T. Attrition Pulv. Co. v. 
 V. Westchester Fire Ins. Co., 55 N. 
 
 Y. 657 ; pp. 43 (appeal), 172 (contract), 
 
 292 (evidence). 
 Van Valkenburgh v. Lenox Fire Ins. 
 
 Co., 51 N. Y. 465 ; p. 396 (insurance). 
 
 , People ex rel. Beardsley v. 
 
 Van Veghten v. Howland, 12 ^166. JV. S. 
 
 461; p. 621 (practice). 
 Van Volkenburgh v. Bates, 14 Abb. JV. S. 
 
 314, n.; pp. 21 (action), 620 (prac.) 
 Van Voorhis, Hann v. 
 Van Vranken, Albany City Ins. Co. v. 
 Van Wagenen, Flake v. 
 Van Wagner, Folsom v. 
 Van Wie, Eeeler v. 
 
 Van Wyck, Foster v.' 
 
 Van Zandt, McLain v. 
 
 V. MuT. Benefit Life Ins. Co., 55 N. 
 
 Y. 169; pp. 326 (evi.), 405 (ins.) 
 
 Varian, Hammond v. 
 
 Varnum, Commercial Bank of Ken- 
 tucky V. 
 
 Vary, Fawcbtt v. 
 
 Vaughn v. Westover, 2 Hun, 43 ; p. 583 
 (practice). 
 
 Veeder v. Cooley, 2 Hun, 74 ; pp. 63 (ap- 
 peal), 308, 321 (evidence), 581 (prac.) 
 
 Velie, Smith v. 
 
 Venice, Town of, v. Breed, 65 Barb. 597 ; 
 pp. 25 (action), 254 (defense), 352 (for- 
 mer adjudication), 440 (limitation of ac- 
 tions), 551, 555 (pleading). 
 
 Vermilyea v. Palmer, 52 N. Y. 471 ; p. 
 42 (appeal). 
 
 Vermont & Can. Ry. Co., Ogdbnsburgh 
 & L. Champ. R. R. Co. v. 
 
 Vt. Copper Mining Co., Mitchell v. 
 
 , Ormsby v. 
 
 Veenam v. Harris, 1 Hun, 451 ; pp. 540 
 (payment), 636 (prin. and surety). 
 
 Vbrnol v. Keblbr, 47 N. Y. 674 ; p. 466 
 (money paid) . 
 
 Vernon v. Vernon, 53 N. Y. 351 ; modify- 
 ing 7 Lans. 492 ; pp. 716 (trusts), 745, 
 747 (will). 
 
 Verona Central Cheese Factory v. 
 Murtaugh, 4 Lans. 17 ; revd. 50 iV. Y. 
 314 ; pp. 328 (evidence), 686 (statutes). 
 
 Verplanck, Yokkb v. 
 
 VlALL, FuLLERTON V. 
 
 Vibbard, Weetgen v. 
 
 Vickery v. Dickson, 62 Barb. 272 ; S. C. 
 before, 35 Barb. 96 ; pp. 470 (mortgage), 
 723, 725 (usury). 
 
 ViELE, In matter op, 44 How. 14 ; pp. 371 
 {hab. Corp.), 528 (parent and child). 
 
 ViLMAR V. ScHALL, 35 N. Y. Supr. 67 ; pp. 
 56 (appeal), 291 (evidence), 582 (prac.) 
 
 Vincent v. Bamford, 42 How. 109 ; 12 Abb. 
 N. S. 252 ; 33 JV. Y. Supr. 506 ; pp. 54 
 (appeal), 190 (corporation). 
 
 V. Sands, 42 How. 231; 11 Abb. N. S. 
 
 366 ; 33 N. Y. Supr. 511 ; pp. 58 (ap- 
 peal), 191 (corporation), 586 (prac.) 
 
 Vincbtt v. Cook, 4 Hun, 318 ; p. 492 (neg- 
 ligence). 
 
 ViNERu. N. T., etc. Steamship Co., 50 
 N. Y. 23; p. 590 (practice). 
 
 Virtue, Richardson v. 
 
 Vischeb Phelps v. 
 
 VoQHT, In matter op, 44 How. 171 ; pp. 
 
896 
 
 TABLE OF CASES. 
 
 145 {const, law), 346 (erfradition), 370 
 {habeas corpus). 
 VoLKENiNG, In matter OF, 52 N. Y. 650 ; 
 p. 143 (constitutional law). 
 
 , BUTTERWOKTH V. 
 
 , DOWDNEY V. 
 
 , HOUBIE V. 
 
 , Sage v. 
 
 VoLTZ V. Blackmab, 4 Hun, 139 ; p. 180 
 
 (conversion). 
 Von Boskekk, Lambertson v. 
 
 VONDERWULBBKE, MeHL V. 
 
 Von Keller v. Schulting, 45 How. 139 ; 
 p. 200 (costs). 
 
 „. , 50 N. Y. 108; pp. 321 (evi- 
 dence), 662 (sale). 
 
 Von Schoening, Hubbell v. 
 
 vontbin, rousso v. 
 
 Von Volkenburgh, Harbison v. 
 
 VooRHEES V. Bubchard, 6 Lans. 176 ; 
 afEd. 55 N. Y. 98 ; pp. 44 (appeal), 
 247 (deed), 263 (easement), 320 (evi- 
 dence). 
 
 ». McCartney, 51 N. Y. 387; p. 195 
 
 (costs). 
 
 V. McGiNNis, 48 N. Y. 278; p. 349 
 
 (fixtures). 
 
 V. Natl. Citizens' Bane, 15 .466. N.S. 
 
 13; pp. 98 (bills and notes), 506 (new 
 trial). 
 
 V. Olmstead, 3 Hun, 744; pp. 104 (6ona 
 
 fide purchaser), 280 (estoppel). 
 
 VOORHIEB, ACKEKMAJT V. 
 
 VoOEHis, In matter of, 3 Hun, 212; p. 518 
 (N. Y. city). 
 
 , BURCHELL V. 
 
 V. Mayor, etc. op New York, 46 Hme. 
 
 116; p. 166 (contract). 
 
 Otis v. 
 
 Vosbubgh, Goodyear v. 
 
 VosE V. CocKCROPT, 44 N. Y. 415; pp. 154 
 (constitntionaJ law), 674 (ships, etc.), 732 
 (waiver). 
 
 V. CowDERY, 49 N. Y. 336; pp. 11 (ac- 
 tion), 103 (bona fide purchaser). 
 
 V. Florida R. R. Co. 46 How. 424 ; p. 
 
 575 (practice). 
 
 V. , 50 N. Y. 369; p. 637 (princi- 
 pal and surety). 
 
 V. Reed, 54 N. Y. 657; p. 527 (office, 
 
 etc.) 
 
 V. Ydlee; 4 Hun, 628 ; pp. 296 (avid.), 
 
 654 (removal to U. S. court). 
 
 Vredenburgh, Browne v. 
 
 Vreeland, Satterthwaite v. 
 
 Vboman v. Am. Mbrch. TJn. Expbs. Co., 2 
 Hun, 512; pp. 117 (carr.), 236 (damgs.) 
 
 Vbooman, Haokney v. 
 
 Vulte v. Martin, 44 How. 18 ; p. 344 (ex- 
 ecutors and administrators). 
 
 w. 
 
 Waddell «. Darling, 51 N. Y. 327; p. 
 
 252 (defense). 
 
 , QuASSAic National Bank v. 
 
 Waddingham, Thobpe v. 
 
 Wade v, Kalbfleisch, 15 456. N. S. 16 ; 
 
 afEd. 58 N. Y. 282 ; p. 1 (abate. & rev.) 
 V. Matheson, 4 Lans. 158 ; affd. 47 
 
 N. Y. 658; pp. 15 (action), 702 (taxes.) 
 V. N. Y. & O. Midland Ry. Co., 52 
 
 N. Y. 627; p. 363 (frauds, statute of). 
 V. Obton, 12 Abb. N. S. 444; pp. 78 
 
 (attorney), 625 (practice). 
 Wademan v. Albany &£usq. R. R. Co., 51 
 
 N. Y. 568 ; pp. 607 (pract.) 644 R. R. Co.) 
 Wadley v. Davis, 43 How. 82 ; p. 67 (costs). 
 V. , 63 Barb. 500 ; pp. 231 (custom), 
 
 323 (evidence), 554 (pleading). 
 Wadswobth, Burnett v. 
 Waffle v. N. Y. Centeal R. R. Co, 53 
 
 N. Y. 11 ; affirming 58 Barb. 413. See 
 
 Digest, vol. iv. 
 
 V. Poetee, 61 Barb. 130; p. 737 (water- 
 course). 
 
 Wageneb v. Pinch, 65 Barb. 493; pp. 355 
 (former adjudication), 602 (practice). 
 
 , Mabtin v. 
 
 Wagneb, Htjpp V. 
 
 V. Long Island R. R. Co., 2 Hun, 633; 
 
 pp. 261 (drainage), 736 (watercourse). 
 
 , People ex rel. Youmans v. 
 
 Waid v. Gaylord, 1 Hun, 607 ; p. 655 (re- 
 plevin). 
 
 Wait v. Albany & Susquehanna R. R. 
 Co., 5 Lans. 475 ; pp. 630 (principal 
 and agent), 643 (R. R. Co.) 
 
 V. Geeen, 46 How. 449 ; 36 N. Y. 556; 
 
 affirming 62 Barb. 241 ; p. 661 (sale). 
 
 V. Ray, 5 Hun, 649 ; p. 139 (common 
 
 schools). 
 
 , ScoviL V. 
 
 , Tebey v. 
 
 V. Welleb, 4 Hun, 626; p. 390 (inj.) 
 
TABLE OF CASES. 
 
 897 
 
 Waite, Graves v. 
 
 Wakeman v. Dalley, 51 N. Y. 27 ; aiRrm- 
 
 ing 44 Barb. 498". See Digest, vols. i. 
 
 and ii. 
 Walbkidge v. James, 4 Hun, 793; p. 479 
 
 (mortgage). 
 
 V. Ocean National Bank of New 
 
 York, 59 N. Y. 642; p. 590 (practice). 
 
 Walce, Houghton v. 
 
 Walch v. Cook, 65 Barb. 30; pp. 723, 725 
 
 (usury). 
 Waldo, Hidden v. 
 Waldron ii. RiTCHiNGs, 3 Daly, 288; 9 
 
 Abb. N. S. 359. See Digest, vol. iv. 
 Wales, Baker v. 
 Walker v. Am. Nat. Bank, 49,2V. Y. 659; 
 
 p. 77 (attorney). 
 
 , Cent Savings Institution v. 
 
 V. City of Lockport, 43 How. 366; 
 
 pp. 443 (Lockport), 493 (negligence). 
 , Dart v. 
 
 V. Erie Railway Co., 63 Barb. 260; 
 
 pp. 57 (appeal'), 238 (damages), 494 
 (negligence). 
 
 , Oppenheimer v. 
 
 V. Shoemaker, 4 Hun, 579; p. 431 
 
 (landlord and tenant). 
 
 — ; — V. Spring, 5 Hun, 107; p. 655 (re- 
 plevin). „ 
 Wall v. Ellis, 54 N. Y. 684 ; p. 41 (appeal). 
 V. Gordon, 12 Abb. N. S. 349; p. 183 
 
 (copyright). 
 
 , Newberry v. 
 
 Wallace v. Am. Linen Thread Co., 46 
 
 How. 403; p. 52 (appeal). 
 V. Drew, 54 N. Y. 678; reversing 59 
 
 Barb. 413; pp. 48 (app.), 737 (water- 
 course). 
 
 V. Fee, 50 N. Y. 694 ; p. 245 (deed). 
 
 , People ex rel. Ludlum i;. 
 
 V. Storry, 4 Hun, 791; pp. 68 (appeal), 
 
 697 (surrogate). 
 Wallack v. Mayor, etc. op N. Y., 3 Hun, 
 
 84 ; pp. 146 (constitutional law), 512 
 
 (N. Y city). 
 Waller, Murray v. 
 V. Thomas, 42 How. 337; 4 Daly, 551 ; 
 
 pp. 24 (action), 549 (pleading). 
 Wallerstein v. Columbian Ins. Co., 44 
 
 N. Y. 204; reversing 3 Rob. 528; p. 410 
 
 (insurance). 
 Walling v. Mayor, etc. of N. Y., 49 How. 
 
 383; p. 521 (N. Y. city). 
 Wallkill Valley K. R. Co. v. Norton, 
 
 12 Abb. N. S. 317; p. 640 (R. R. Co.) 
 
 57 
 
 Wallmann v. Society op Concord, 45 N. 
 
 Y. 485; pp. 11 (action), 177 (contract). 
 Walls v. Bailey, 49 N. Y. 464 ; pp. 283, 
 
 323 (evidence). 
 Walrath, Crouse v. 
 V. Ingles, 64 Barb. 265 ; p. 362 (frauds, 
 
 stat. of). 
 
 V. Richie, 5 Lans. 362; p. 660 (sale). 
 
 Walsh v. Mehrbach, 5 Hun, 449 ; p. 552 
 
 (pleading). 
 V. Powers, 43 N. Y. 23- pp. 47 (app.), 
 
 384 (infant). 
 
 , Prosser v. 
 
 V. Weidenfeld, 3 Daly, 334 ; pp. 203 
 
 (costs), 605 (practice.) 
 Walter, Board op Superv's. of King's 
 
 Co. «. 
 
 , COZINE V. 
 
 , May v. 
 
 , O'Leary v. 
 
 , People ex rel. Corwin v. 
 
 , Pike v. 
 
 , quigley v. 
 
 Walters v. Continental Ins. Co., 5 Hun, 
 343 ; p. 546 (pleading). 
 
 , lultgor v. 
 
 Wamsley, Codding v. 
 
 Wandel, Board of Superv's. op Rich- 
 mond Co. v. 
 
 , Hartnett v. 
 
 Wandlb, Hart v. 
 
 Wannemacher v. Davis, 2 Sweeny, 272 ; 
 p. 614 (practice). 
 
 Ward, In matter op, 52 N. F. 395; p. 112 
 , (Brooklyn). 
 
 , Allen v. 
 
 , Bradley v. 
 
 V. BuNDY, 43 How. 330 ; p. 205 (co. 
 
 judge). 
 
 V. Cent. Park, N. & E. Riv. R. R. Co., 
 
 42 How. 289 ; 11 Abb. N. S. 411 ; 33 N. 
 Y. Supr. 392; pp. 128 (carrier), 500 (neg- 
 ligence), 581 (practice). 
 
 V. , 2 Sweeny, 701 ; pp. 57 (appeal), 
 
 606 (practice). 
 
 , McKechnie v. 
 
 V. N. Y. Cent. R. R. Co., 47 N. Y. 29 ; 
 
 pp. 120 (carrier), 236 (damages). 
 
 , Ryan v. 
 
 «. Spencer, 1 Hun, 622; p. 56 (appeal). 
 
 Wardell, Dupp v. 
 
 Warden, Bixby v. 
 
 , Smith v. 
 
 Wardens op St. James Church, Young 
 Stone Dressing Co. v. 
 
 of St. Paul's Church, Cook v. 
 
898 
 
 TABLE OF CASES. 
 
 Wardrop v. Dunlop, 1 W«n, 325 ; afEd. 59 
 iV. Y. 634 ; pp. 541 (payment), 631 
 (principal and agent). 
 
 Waring v. Indemnity F. Ins. Co. , 45 N. 
 Y. 606; pp. 21 (action), 396, 398 (ins.) 
 
 V. LoDER, 53 JSf. Y. 581 ; p. 73 (assign.) 
 
 V. McKiNLEY, 62 Barh. 612; pp. 66 (ap- 
 peal), 290 (evidence), 422 (justice ct.) 
 
 V. Senior, 48 How. 226; p. 53 (appeal). 
 
 V. U. S. Telegraph Co., 44 How. 69 ; 
 
 4 Daly, 233; pp. 312 (evi.), 503 (new tr.) 
 
 V. Yale, 1 Hun, 492 ; p. 576 (prac.) 
 
 Warn, Bell v. 
 
 Warner, Hall ». 
 
 , Knapp v. 
 
 , Ledue v. 
 
 V. N. Y. Cent. R. E. Co., 44 N. Y. 
 
 465; revg. 45 Barb. 299 ; pp. 332 (evi- 
 dence), 490, 501 (negl.), 646 (R. R. Co.) 
 
 V. , 52 N. Y. 437; p. 598 (pract.) 
 
 , People v. 
 
 , Todd v. 
 
 V. Warren, 46 N. Y. 228 ; pp. 47 (ap- 
 peal), 314 (evi.), 359 (frauds, stat. of). 
 
 , Wheeler v. 
 
 Warren, Clakk i». 
 
 V. Fake, 49 How. 430 ; p. 85 (banks). 
 
 V. Haight, 62 Barb. 490; p. 587 (prac.) 
 
 , Hathaway v. 
 
 , Newell v. 
 
 , Sullivan v. 
 
 V. Tenth Nat. Bank of N. Y., 42 
 
 How. 169 ; p. 87 (bankruptcy). 
 
 , Warner v. 
 
 Warth, Parker v. 
 
 Washburn, Boyce v. 
 
 V. Hubbard, 6 Lans. 11 ; pp. 234 (dam- 
 ages), 328 (evidence). 
 
 Washington Co. Bank, Nat. Bank op 
 Ft. Edward v. 
 
 Washington Park, Matter of, 15 Abb. 
 N. S. 148; p. 269 (eminent domain). 
 
 Wason, Dickerson v. 
 
 Wateebury Button Co., Moses v. 
 
 Water Commrs. of Detroit v. Burr, 35 
 J^. Y. Supr. 522 ; affd. 56 N. Y. 665 ; pp. 
 44 (appeal), 107 (contr.), 581, 582 (prac.) 
 
 V. , 2 Sweeny, 25 ; p. 636 (prin. and 
 
 surety). 
 
 op poughkeepsie, dickinson v. 
 
 Waterhouse, Read v. 
 
 Waterman, Graves v. 
 
 Watertown Bank and Loan Co. v. Mix, 
 51 N. Y. 558 ; pp. 35 (appeal), 603 (new 
 trial). 
 
 City, Phelps v. 
 
 , Wilson v. 
 
 Walters, Crawford v. 
 
 , Spicer v. 
 
 Watervliet Turnpike Co., Higgins v. 
 
 Watkins, Dent v. 
 
 V. Wilcox, 4c Hun, 220; pp. 26 (act.), 
 
 651 (relig. corp.) 
 Watson, Matter of, 5 Lans. 466; affg. 3 
 
 Lans. 408; pp. 158 (contempt), 696 
 
 (surr.) 
 V. Brennan, 39 iV. Y. Supr. 81; p. 671 
 
 (sheriff). 
 V. Church, 3 Hun, 80; pp. 481 (mortg.), 
 
 569 (practice). 
 V. Gardiner, 50 N. Y. 671; pp. 61 
 
 (appeal), 195, 197, 201 (costs). 
 
 , Home Ins. Co. v. 
 
 , juliand v. 
 
 V. N. Y. Cent. R. R. Co., 47 N. Y. 157; 
 
 pp. 148 (const, law), 642 (R. R. Co.), 
 
 688 (statutes). 
 J). Parker, 1 Hun, 618; p. 179 (con- 
 tract.) 
 V. People, 64 Barb. 180; pp. 220, 223 
 
 (criminal law). 
 
 , Riley v. 
 
 V. Watson, 47 How. 240; 1 Hun, 267; 
 
 p. 452 (marr. and div.) 
 Watts, Crosby v. « 
 
 V. Hilton, 3 Hun, 606; p. 546 (pldg.) 
 
 Waugh v. Fielding, 48 N. Y. 681 ; p. 306 
 
 (evidence). 
 Wavle, Ryan v. 
 Way, Dow v. 
 Wayland v. Tysen, 45 N. Y. 281 ; revg. 
 
 9 Abb. N. S. 79 ; p. 558 (pleading). 
 Wayne and Ont. Collegiate Inst. v. 
 
 Blackmar, 48 N. Y. 663; pp. 107 
 
 (bonds), 255 (defense). 
 Weaver v. Barden, 49 N. Y. 286 ; revg. 3 
 
 Lans. 338; pp. 34 (appeal), 105 (b. f. 
 
 purch.), 552 (pleading), 690 (stocks). 
 
 , Willis v. 
 
 Webb v. Bailey, 54 N. Y. 164; pp. 617, 618 
 
 (practice). 
 
 , Foot v. 
 
 , Holdredge v. 
 
 , Morey v. 
 
 V. Odell, 49 N. Y. 588; pp. 41 (app.), 
 
 663 (sale). 
 V. Rome, Wat. & Ogd. R. R. Co., 49 
 
 N. Y. 420; p. 332 (evidence). 
 V. Vanderbilt, 39 N. Y. Supr. 4; pp. 
 
 188 (Corp.), 560 (pleading). 
 Webber v. City op Lockpobt, 43 How. 
 
 368; pp. 448 (Lockport), 699 (taxes). 
 
TABLE OF CASES. 
 
 899 
 
 Weber v. N. Y. Cent, and Hud. Riv. R. 
 R. Co., 58 N. Y. 451; pp. 496 (negl.), 
 591 (practice), 648 (R. R. Co.) 
 
 Weed v. Aldrich, 2 Hun, 531; p. 752 (will). 
 
 V. Barney, 45 N. Y. 344 ; p. 122 (carr.) 
 
 V. Mot. Benefit Life Ins. Co., 35 N. 
 
 Y. Supr. 386 ; p. 285 (evidence). 
 
 V. People, 56 N. Y. 628 ; pp. 219, 221, 
 
 223 (criminal law). 
 
 V. Peterson, 12 Abb. N. S. 178; p. 713 
 
 (trademark). 
 
 , QuiNN V. 
 
 V. Schenectady Ins. Co. , 7 Lans. 452 ; 
 
 pp. 402 (insurance), 557 (pleading). 
 
 Weeks u. Hoyt, 5 Hun, 547; p. 250 (defen.) 
 
 v. Love, 50 N. Y. 568; afEg. 33 N. Y. 
 
 Supr. 397; pp. 24 (action), 190 (corp.) 
 
 Weetgen v. Vibbard, 5 Hun, 265 ; p. 718 
 (trusts). 
 
 Weetjen v. St. Paul & Pac. R. R. Co., 4 
 Hun, 529; pp. 103 (bj. f, puroh.), 386 
 (inj.), 470 (mortg.), 670 (secy, of navy). 
 
 Wkhle v. Butler, 43 How. 5; 12 Abb. N. S. 
 139; 34 N. Y. Supr. 215; fuUy reported, 
 35 iV. Y. Supr. 1; pp. 2.38 (damages), 
 251 (defense), 310 (evidence), 552 (plead- 
 ing), 714 (trespass). 
 
 V. Haviland, 42 How. 399 ; 4 Daly, 
 
 ^50; pp, 180 (contrib.),24Q (damgs.), 307. 
 326 (evid.), 503 (newtr.), 556 (pldg.) 
 
 , Haviland v. 
 
 V. Spelman, 1 Hun, 684; p. 312 (evid.) 
 
 Wehrum v. Kuhn, 34 N. Y. Supr. 336; pp. 
 503 (new trial), 671 (settlement). 
 
 Weidenfeld, Walsh v. 
 
 Weil, Robinson v. 
 
 Weiler, Carroll v. 
 
 Weinberger v. Fauerbach, 14 Abb. N. S. 
 91; 4 Daly, 554; pp. 299, 326 (evid.) 
 
 Weir v. Groat, 4 Hun, 193 ; p. 378 (hus- 
 band and wife). 
 
 , Morton v. 
 
 Weismar v. Village of Douglass, 4 Hun, 
 201 ; pp. 153 (constitutional law), 279 
 (estoppel), 484 (municipal corporation.) 
 
 Weissenbach, People ex rel. Wehle v. 
 
 Welch, Brown v. 
 
 , McCartney v. 
 
 , People v. 
 
 V. New York Central R. -R. Co., 53 
 
 N. Y. 610 ; p. 297 (evidence). 
 
 V. Sage, 47 N. Y. 143; p. 102 {bona 
 
 fide purchaser), 251 (defense). 
 
 , TiNSON V. 
 
 Weld, Bowns v. 
 Welles, Allison v. 
 
 , Cox u. 
 
 V. Tuthill, 4 Htm, 811 ; p. 466 (money 
 
 paid). 
 
 , Wait v. 
 
 V. Wkller, 4 Hun, 195; pp. 313 (evi- 
 dence), 343 (exrs. and administrators). 
 Wellington, Clark v. 
 
 , Richard v. 
 
 Wkllman, Dodge v. 
 
 Welles v. Yates, 44 N. Y. 525 ; pp. 172 
 
 (cont.), 272 (equity), 438 (limit, of act.) 
 Wells v. Knight, 5 Hun, 50 ; pp. 344 (exrs. 
 
 and adm.), 434 (legacy). 
 
 , Leitch v. 
 
 V. Mann, 45 N. Y. 327 ; revg. 52 Barb. 
 
 263 ; p. 7 (action), 636 (prin. and sur.) 
 
 , Mason v. 
 
 V. Selwood, 61 Barb. 238; p. 235 
 
 (damages), 666 (sale). 
 Welsh v. Cochran, 2 Hun, 675 ; pp. 378 
 
 (husband and wife). 
 V. Darragh, 52 N. Y. 590 ; pp. 45 
 
 (appeal), 601 (practice). 
 Welts v. Conn. Mut. Life Ins. Co., 48 
 
 N. Y. 34 ; afCg. 46 JSorJ. 412. See Digest, 
 
 vol. ii. 
 Welz v. Niles, 3 Da^y, 172 ; pp. 386 (inj.) 
 Wendb v. Bradley, 5 Hun, 513 ; p. 422 
 
 (justice court). 
 Wentz v. Erie Ry. Co., 3 Hun, 241 ; p. 644 
 
 (R. R. Co.) 
 Wenzler v. People, 58 N. Y. 516 ; pp. 143, 
 
 155 (constitutional law). 
 Werder, Keck v. 
 Wesley, Corwin v. 
 Wessels, Harris v. 
 West, Anderson v. 
 
 V. Crary, 47 N. Y. 423 ; pp. 135 (chat- 
 tel mortgage), 734 (waiver). 
 
 , Kelly v. 
 
 , Mitchell v. 
 
 West, Bradley and Gary Manpg. Co., 
 
 Driscoll i;. 
 Westbrook v. Willey, 47 N. Y. 457 ; pp. 
 
 285, 289 (evidence), 704 (taxes). 
 Westchester Fire Ins. Co., Mead v. 
 
 , Van Tuyl v. 
 
 Westcott, Acer v. 
 
 V. Fargo, 6 Lans. 319 ; 63 Barb. 349 ; 
 
 pp. 24 (action), 59 (appeal), 116 (carrier!, 
 
 297 (evidence). 
 
 , Sunderland u. 
 
 Western New York Life Ins. Co. v. 
 
 Clinton, 5 Hun, 118 ; p. 635 (principal 
 
 and surety). 
 Western R. R. Co., Ayers v. 
 
900 
 
 TABLE OF CASES. 
 
 V. Nolan, 48 N. Y. 513 ; pp. 20 (ac- 
 tion), 392 (injunction). 
 
 Westekn Tkans. Co. v. Barber, 56 N. Y. 
 544 ; pp. 82 (bailment), 124 (carrier), 
 347 (factor). 
 
 , Chamberlain v. 
 
 , Home Ins. Co. v. 
 
 , Sherman v. 
 
 OF BtrrrALO v. Lansing, 49 N. Y. 499 ; 
 
 p. 425 (landlord and tenant) . 
 
 Western Union Telegraph Co. , Atlan- 
 tic AND Pacific Tel. Co. v. 
 
 , Blanchard v. 
 
 , Culver v. 
 
 , Elwood v. 
 
 , LOWERT V. 
 
 , Shaver v. 
 
 , Young v. 
 
 Westervelt v. Ackley, 2 Hun, 258 ; p. 
 379 (husband and wife). 
 
 Westfall v. Erie Ry. Co., 5 Hun, 75; pp. 
 332 (evidence). 
 
 V. Peacock, 63 Barb. 209 ; pp. 16 (ac- 
 tion), 668 (sale). 
 
 V. Preston, 49 N. Y. 349 ; revg. 3 Lans. 
 
 151 ; pp. 4 (accord and sat.), 701, 702 
 (taxes). 
 
 Westlake ■». Bostwick, 35 N. Y. Supr. 
 256 ; pp. 667 (sale), 670 (set-ofe). 
 
 Weston v. Ketcham, 39 iV. Y. Supr. 54 ; 
 pp. 393 (inj.), 535 (partition), 599 (prac- 
 tice). 
 
 V. , 39 N. Y. Supr. 552 ; p. 60 (ap- 
 peal). 
 
 Westover, Vaughn v. 
 
 West Point Iron Co. v. Reymert, 45 N. 
 Y. 703; pp. 4 (acknowledgment), 249 
 (deed), 388 (inj.), 734 (waiver). 
 
 West Shore Hud. Riv. R. R. Co., Mal- 
 
 LORY V. 
 
 West Side Bank v. Pugsley, 12 Abb. N. 
 S. 28 ; 47 N. Y. 368 ; pp. 35 (appeal), 
 156 (contempt), 612, 625 (pract.) 
 
 Wetmore v. Candee, 49 N. Y. 667 ; p. 209 
 (creds. bill). 
 
 , Labb v. 
 
 V. Parker, 7 Lans, 121 ; affd. 52 JST. 
 
 Y. 450 '; pp. 200 (costs), 696 (surr.), 738, 
 741 (will). 
 
 V. Truslow, 51 N, Y. 338 ; pp. 45 (ap- 
 peal), 721 (trusts), 743 (will). 
 
 Wetsell, Hunter v. 
 
 Wetzell v. Dinsmorb, 4 Daly, 193; revd. 
 54 N. Y. 496; pp. 115 (carrier), 292 (evi- 
 dence). 
 
 Wexel, Mkrwin v. 
 
 Weyman v. People, 4 Hun, 511 ; p. 224 
 
 (orim. law.) 
 Weymouth v. Dimock, 41 How. 92 ; p. 561 
 
 (pleading). 
 Whalen, Beckwith v. 
 
 V. Gloucester, 4 Hun, 24 ; p. 490 
 
 (uegl.) 
 
 Whaley, King v. 
 
 Whedon v. Champlin, 59 Barb. 61 ; pp. 279 
 
 (estop.), 359 (frauds, stat. of), 379 (husb. 
 
 and wife), 588 (pract.) 
 Wheeler, .^Itna Ins. Co. v. 
 V. Allen, 51 N. Y. 37 ; afC'g. 49 Barb. 
 
 460. See Digest, vol. iii. 
 
 , Allis v. 
 
 , Bonnell v. 
 
 , boylston v. 
 
 , Bradley v. 
 
 V. Brady, 2 Hun, 347 ; p. 616 (prac.) 
 
 V. Clark, 58 N. Y. 267 ; pp. 248 (deed), 
 
 262 (easm.) . 
 Wheeler v. Clutterbuck, 52 N. Y. Sf^ ■ p. 
 
 257 (descent). 
 
 , Emmons v. 
 
 V. Frenche, 33 N. Y. Supr. 63 ; p. 614 
 
 (pract.) 
 
 , Gauntley v. 
 
 , Houston v. 
 
 V. McCabe, 47 How. 283 ; p. 54 (app.) 
 
 , montross v. 
 
 , Morris v. 
 
 , Newell v. 
 
 V. New York Mut. Ins. Co., 35 N. Y. 
 
 Supr. 247 ; p. 411 (ins.) 
 
 , Northrup v. 
 
 , Phillips v. 
 
 , Rogers v. 
 
 V. RucKMAN, 51 N. Y. 391 ; affg. 35 
 
 How. 350. See Digest, vol. iv. 
 
 V. Scully, 50 N. Y. 667; p. 477 (mortg.) 
 
 V. See, 4 Hun, 662 ; p. 585 (pract.) 
 
 , Skinner v. 
 
 V. Spinola, 54 N. Y. 377 ; pp. 29 (ad- 
 verse poss.), 656 (ripar. owner). 
 
 , Trustees Union College v. 
 
 , Un. Nat. Bank of Pittsburgh v. 
 
 «. Warner, 47 N". Y. 513; pp. 440 (lim- 
 itation of action). 
 
 V. Wheeler, 5 Lans. 355; pp. 178 (con- 
 tract), 277 (estoppel). 
 
 Whbelock v. Cuyler, 4 Hun, 414; p. 756 
 (witness). 
 
 ■». Lee-, 15 Abb. N. S. 24; pp. 17, 18, 
 
 25 (action), 387 (injunction), 544 (plead- 
 ing), 730 (waiver). 
 
 Wheelan v. Lynch, 65 Barb. 326 ; aflSrmed 
 
TABLE OF CASES. 
 
 901 
 
 60 N. F. 469; pp. 239 (damages), 294, 
 
 310 (evidence). 
 Whipple, Cook v. 
 
 , Salt Springs Natl. Bank v. 
 
 WiiiTAKEE V. Eighth Av. R. R. Co., 51 
 
 N. Y. 295; reversing 5 Roh. 650; pp. 14 
 
 (actions), 315 (evidence). 
 V. Whitakkr, 52 N. Y. 368; p. 377 
 
 (husband and wife). 
 
 V. , 54 N. Y. 688; p. 172 (contract). 
 
 V. , illun, 810; p. 540 (payment). 
 
 Whitbeck v. Billings, 1 Hun, 494; p. 140 
 
 (common schools). 
 Whitcomb, Gates v. 
 White v. Ashton, 51 N. Y. 280 ; pp. 281 
 
 (estoppel), 321 (evidence). 
 
 , Barker v. 
 
 , Bass v. 
 
 , Black v. 
 
 V. Brown, 5 Lam. 78; p. 18 (action). 
 
 , Gary v. 
 
 , Central Natl. Bank v. 
 
 V. Colfax, 38 N. Y. Supr. 297 ; p. 539 
 
 (partnership). 
 V. CoRLiES, 46 N. Y. 462 ; p. 161 (con- 
 tract). 
 V. Coulter, 1 Hun, 357; pp. 35, 51 
 
 (appeal), 335 (execution), 476, 481, 482 
 
 (mortgage), 731 (waiver). 
 V. , 59 N. Y. 629 ; pp. 85 (appeal), 
 
 605 (practice), 781 (waiver). 
 , Cunningham v. 
 
 , CUERIE V. 
 
 , Frick v. 
 
 V. Fuller, 4 Hun, 681; p. 630 (princi- 
 pal and agent). 
 
 V. Howard, 46 N. Y. 144 ; affirming 52 
 
 Barb. 294. See Digest, vol. iv. 
 
 V. McLean, 47 How. 198 ; 57 N. Y. 
 
 670; pp. 306 (evid.), 584, 597 (pract.) 
 
 V. Mealio, 37 N. Y. Supr. 72; p. 429 
 
 (landlord and tenant). 
 
 V. Mechanics' Natl. Bank, 4 Daly, 
 
 225 ; pp. 26 (actions), 414 (joint liab.) 
 
 , Miller v. 
 
 , People ex rel. Lewis v. 
 
 , PUCKHAEER V. 
 
 , KiGNET V. 
 
 , Roberts v. 
 
 , rosekrans v. 
 
 , Sanford v. 
 
 V. Smith, 46 N. Y. 418; reversing 1 
 
 Zans. 269; pp. 284 (evidence), 563 
 
 (plead.) 
 V. , 54 JV. Y. 522; affg. 6 Lans. 5; 
 
 pp. 110 (broker), 236 (damages). 
 
 V. Sweeny, 4 Daly, 223; p. 180 (conv.) 
 
 , Talmageh. 
 
 V. , 35 N. Y. Supr. 223; pp. 58 (ap- 
 peal), 164, 177 (contr.), 822 (evidence), 
 
 555 (pleading). 
 
 V. Turner, 1 Hun, 623; p. 56 (appeal). 
 
 V. Williams, 48 N. Y. 344 ; revg. 48 
 
 Barb. 222 ; p. 727 (vendor and purch.) 
 Whiteford, Blaidsell v. 
 Whitbpield, Ross v. 
 
 Whitehall Trans. Co. v. N. J. Steam- 
 boat Co., 51 N. Y. 369; pp.238 (dam.) 
 
 499 (negligence). 
 Whitbhousb v. Bank op Cooperstown, 
 
 48 N. Y. 239 ; p. 541 (payment). 
 Whitelegge, Scofield v. 
 Whitfield, Cooney v. 
 Whiting v. Barrett, 7 Lam. 106 ; pp. 359 
 
 (frauds, statute of), 365 (gift). 
 
 , Stoddard v. 
 
 Whitln v. Pbndegast, 50 N. Y. 674 ; pp. 
 
 50 (appeal), 681 (principal and agent). 
 Whitlock, Beadle v. 
 
 V. Hay, 58 N. Y. 484 ; p. 662 (sale). 
 
 , McAndrew v. 
 
 Whitman, Johnson v. 
 
 V. NiC0L,"38 N. Y. Supr. 528; pp. 208 
 
 (covenant), 547 (pleading). 
 V. NicoLL, 49 How. 88; pp. 52 (appeal), 
 
 199 (costs). 
 Whitmore v. Bischoff, 5 Hun, 176 ; pp. 
 
 241 (damages), 333 (evidence). 
 V. Mayor, etc of N. Y., 5 Hun, 195 ; 
 
 p. 507 (N. Y. city). 
 Whitney Arms Co. v. Barlow, 38 N. Y. 
 
 Supr. 554; pp. 186, 192 (corporation), 
 
 255 (defense). 
 Whitney w. Elmer, 60 Barb. 250; pp. 238 
 
 (damages), 838 (evidence). 
 , First Nat'l. Bank op Canandai- 
 
 GUA V. 
 
 , Fulton v. 
 
 V. Mayor, etc. op N. Y., 39 N. Y. 
 
 Supr. 106; pp. 56 (appeal), 250 (def.) 
 
 a. National Bank op Potsdam, 45 
 
 N. Y. 803 ; pp. 236 (damages), 466 (mo- 
 ney paid). 
 
 Whitson v. Whitson, 53 N. Y. 479; p. 
 746 (will). 
 
 Whittaker v. Burhans, 62 Bard. 287 ; p. 
 656 (ripar. owner). 
 
 , Kay v. 
 
 , Morgan v. 
 
 V. Stebbins, 36 N. Y. Supr. 192 ; p. 51 
 
 (appeal). 
 
 Whitwell, Menagh v. 
 
902 
 
 TABLE OF CASES. 
 
 V. Putnam Fire Ins. Co., 6 Lans. 166; 
 
 pp. 331 (evidence), 399 (insurance). 
 Whitworth v. Erie R. E. Co. 37 N. Y- 
 
 Supr. 437; p. 572 (practice). 
 
 WlBERLY, RyER v. 
 
 WicKBS V. Adirondack Co., 2 Run, 112 ; 
 p. 284 (evidence). 
 
 WiCKHAM, DeMAREST V. 
 
 , Deposit Nat. Bank ». 
 
 Wicks v. Hatch, 38 N. Y. Supr. 95 ; pp. 
 Ill (broker), 382 (husband and wife), 
 628 (principal and agent). 
 
 , Phillips v. 
 
 WiCKWiRE, Benton v. 
 
 WiELARSKT, Brush v. 
 
 Wiggins v. Erie Rt. Co., 5 Hun, 185 ; p. 
 116 (carrier). 
 
 V. McClbary, 49 N. Y. 346 ; p. 262 
 
 (easement). 
 
 V. People, 4 Hun, 540 ; p. 223 (crim- 
 inal law). 
 
 , Terry v. 
 
 WiGHTMAN, Cox V. 
 
 WiLBER, Marvin v. 
 
 V. SissoN, 54 N. Y. 121 ; affirming 53 
 
 Barb. 258. See Digest, vol. iv. 
 WiLBOR V. Danolds, 59 N. Y. 657 ; pp. 39 
 
 (appeal), 482 (mortgage). 
 Wilcox v. Hoch, 62 Barb. 509 ; pp. 596, 
 
 598 (practice). 
 
 V. Howell, 44 N. Y. 598 ; affg. 44 
 
 Barb. 396. See Digest, vols. i. and ii. 
 
 , Mygatt v. 
 
 V. Palmeter, 2 Hun, 517 ; pp. 311 
 
 (evidence), 423 (justice court). 
 
 , Popham v. 
 
 , Shallies v. 
 
 , Smith v. 
 
 , Thomson v. 
 
 , Watkins v. 
 
 Wild v. N. Y. & A. Silver Mining Co., 59 
 N. Y. 644; pp. 314 (evid.), 608 (prac.) 
 
 Wilder v. Boynton, 63 Barb. 547 ; pp. 553 
 (pleading), 577 (practice). 
 
 V. Stearns, 48 N. Y. 656 ; p. 10 (ac- 
 tion). 
 
 , Woods v. 
 
 WiLDEY, BOSTWICK V. 
 
 Wiles v. N. Y. Cent. & Hud. Riv. R. R. 
 
 Co. 1 2 Hun, 109 ; pp. 256 (demurrage), 
 
 731 (waiver). 
 
 V. SuYDAM, 3 Hun, 604 ; p. 546 (pldg. ) 
 
 Wiley, Leslie v. 
 
 WiLKE V. People, 53 N. Yr 525 ; pp. 218, 
 
 230 (criminal law), 755 (witness). 
 WiLKiNS V. Earlb, 44 N. Y. 172 ; revg. 3 
 
 Rob. 352 ; 19 Abb. 190; pp. 82 (bailm.), 
 
 331 (evidence), 757 (witness). 
 „. , 42 How. 255 ; 46 N. Y. 358 ; p. 
 
 36 (appeal). 
 Wilkin v. Rapleb, 52 N. Y. 248 ; p. 38 
 
 (appeal). 
 Wilkinson, Chaplin v. 
 
 , LiNGKE V. 
 
 WiLKS, In MATTER OF, 10 Abb. N. 8. 234, 
 n. ; p. 516 (N. Y. city). 
 
 WiLLARD, Myers v. 
 
 WiLLET, Roys v. 
 
 WiLLETTS V. Sun Mutual Ins. Co., 45 N. 
 Y. 45; pp. 6 (action), 160 (contr.), 597 
 (practice). 
 
 Willey v. Shaver, 4 Hun, 797 ; p. 70 (ar- 
 bitration). 
 
 , Westbrook v. 
 
 Williams v. Allen, 48 How. 357 ; 2 Hun, 
 377 ; p. 600 (practice). 
 
 V. Blumer, 49 How. 12; p. 200 (costs). 
 
 , Caryl v. 
 
 , Conway v. 
 
 , Donovan v. 
 
 , Evans v. 
 
 V. Fireman's Fund Ins. Co., 54 N.Y. 
 
 569; p. 397* (insurance). 
 
 V. Frazibr, 41 How'. 428 ; pp. 176 
 
 (contract), 237 (damages), 311 (evi- 
 dence). 
 
 , Haight v. 
 
 V. Irving, 47 How. 440; modified, 1 
 
 Hun, 720 ; p. 3 (accord and sat.) 
 
 , Johnson v. 
 
 V. Lawrence, 47 N. Y. 462 ; affirming 
 
 53 Barb. 320. See Digest, vol. iv. 
 
 , LOSSEE V. 
 
 V. Manning, 41 How. 454; pp. 77 (at- 
 torney), 293 (evidence). 
 V. Mechanics & Traders F. Ins. Co., 
 
 54 N. Y. 577; pp. 581 (practice), 732 
 (waiver). 
 
 V. Montgomery, 60 N. Y. 648; pp. 38 
 
 (appeal), 506 (new trial). 
 
 — V. People's F. Ins. Co., 57 JV. Y. 274; 
 pp. 44 (appeal), 399 (ins.), 589 (pract). 
 
 — , Rapp v. 
 
 — V. Sargeant, 46 iV. Y. 481; pp. 40 
 (appeal), 311 (evidence), 582, 585 (pract). 
 
 — , Sturm v. 
 
 , TOFPEY V. 
 
 , TORPEY V. 
 
 — , White v. 
 
 — V. Williams, 42 How. 411 ; p. 417 
 (jnd. sale). 
 
 — v. , 2 Hun, 111; p. 283 (evidence). 
 
TABLE OF CASES. 
 
 903 
 
 V. "Willis, 15 Abb. N. S. 11 ; p. 559 
 
 (pleading). 
 
 WlLLIAMSBURGH CiTY FlKE InS. Co., 
 
 Diamond v. 
 
 , godpebt v. 
 
 , Hand v. 
 
 TuBNPiKB & B. Co. , Pkople v. 
 
 Williamson, Burdin v. 
 
 V. Dodge, 5 Hun, 497 ; p. 379 (husband 
 
 and wife). 
 
 , Lasher v. 
 
 V. Mayor, etc. op New York, 3 Hun, 
 
 65; pp. 515,519 (New York city). 
 Willio, Hayes v. 
 Willis v. O'Brien, 35i\r. Y. Supr. 536; pp. 
 
 134 (chattel mortgage), 137 (claim and 
 
 delivery). 
 , Sherar v. 
 
 V. Tibbals, 33 N. Y. Supr. 220; pp. 
 
 167 (coutr.), 322 (evidence). 
 
 V. Weaver, 58 N. Y. 681 ; reversing 1 
 
 Hun, 121 ; p. 61 (appeal). 
 , Williams v. 
 
 WiLLlTS, McGOLDRICK V. 
 
 WiLLMONT V. Meserole, 48 How. 430; p. 
 196 (costs). 
 
 WiLLNER, DUTTON V. 
 WiLLOUGHBY, TrIM V. 
 
 WiLLSBA, People ex rel. Litjle v. 
 
 Wilmerdings v. Fowler, 45 How. 142 ; 
 pp. 79 (attorney and client), 156 (con- 
 tempt). 
 
 V. , 15 Abb. N. S.86; modifying 
 
 14 Abb. N. S. 249; 55 N. Y. 641; pp. 
 43, 48 (appeal). 
 
 Wilson v. Barney, 5 Hun, 257; pp. 621 
 (practice), 647 (receiver). 
 
 V. City of Watertown, 3 Hun, 508; 
 
 p. 485 (mmiicipal corporation). 
 
 , Graver v. 
 
 , Doty v. 
 
 V. Edwards, 6 Lans. 134 ; p. 636 (prin- 
 cipal and surety). 
 
 , Hargbr v. 
 
 V. Harvey, 4 Lans. 507; p. 723 (usury) . 
 
 V. KoTG, 39 N. Y. Supr. 384; p. 444 
 
 (malicious prosecution). 
 
 V. Lester, 64 Barb. 431; p. 429 (land- 
 lord and tenant). 
 
 V. Maltby, 59 N. Y. 126 ; pp. 278 
 
 (estoppel), 471 (mortgage). 
 
 V. Mills, 10 Abb. N. S. 143 ; 4 Daly, 
 
 549 ; p. 513 (N. Y. city). 
 
 , NiCKELSON V. 
 
 , People ex rel. Frost v. 
 
 V. EocKE, 58 N. Y. 642; p. 44 (appeal). 
 
 , Sherwood v. 
 
 , Taplin v. 
 
 V. Van P1)lt, 4 Hun, 422 ; p. 168 (con- 
 tract). 
 
 WiNANT, McROBERTS V. 
 
 WiNBEEG, Gillespie w. 
 
 WiNCHELL V. Martin, 14 Abb. N. S. 47 ; p. 
 
 580 (practice). 
 Winchester v. Osbobn, 62 Barb. 337; p. 
 
 244 (deed). 
 Windmuller, Brown v. 
 Windsor Hotel Co. v. Hawk, 49 How. 
 
 257; p. 425 (landlord and tenant). 
 WiNEGAR, Starr v. 
 Wing, In Matter op, 2 Hwn, 671 ; p. 383 
 
 (idiots). 
 Wing, Shaper v. 
 
 WiNKENS, KlEFEE V. 
 
 WiNNE, Peck v. 
 
 WiNSHiP V. WiNSHip, 1 Hun, 320; p. 578 
 
 (practice). 
 WiNSLow V. Clark, 47 N. Y. 261 ; pp. 87 
 
 (b'krupt.), 476 (mort.), 650 (redempt'n.) 
 Winston v. English, 44 How. 398 ; affd. 44 
 
 How. 498; 14 Abb. N. S. 119; 35 iV. Y. 
 
 Supr. 512 ; p. 573 (practice). 
 Winter, Shuttleworth v. 
 Wintbrmute v. Patchin, 54 N. Y. 647 ; p. 
 
 723 (usury). 
 Winters, City op Troy v. 
 Wireman v. Remington S. Machine Co., 
 
 39 N. Y. Supr. 314 ; pp. 52 (appeal), 
 
 574 (practice). 
 Wise v. Chase, 44 N. Y. 337; reversing 3 
 
 Rob. 35 ; p. 658 (sale). 
 , Clark v. 
 
 , RiCHTER V. 
 
 WissER V. O'Brien, 44 How. 209 ; 35 N. Y. 
 
 Supr. 149; pp. 57 (appeal), 135 (chattel 
 
 mortgage). 
 Witbeck ». Holland, 45 N. Y. 13 ; affg. 38 
 
 How. 273; 55 Barb. 443. See Digest, 
 
 vol. iv. 
 V. Van Rensselaer, 2 Hun, 55 ; p. 268 
 
 (ejectment). 
 Withers v. N. J. Steamboat Co., 51 
 
 JV. Y. 626 ; affirming 48 Barb. 455. See 
 
 Digest, vol. iv. 
 Witty v. Campbell, 44 N. Y. 410 ; pp. 
 
 251 (defense), 276 (estoppel). 
 V. Matthews, 52 N. Y. 512 ; p. 428 
 
 (landlord and tenant). 
 
 , Powers v. 
 
 WoHLER V. Bupp. & State Line R. R. Co., 
 
 46 N. Y. 686; pp. 371 (highway), 714 
 
 (trespass). 
 
904 
 
 TABLE OF CASES. 
 
 wolcott, tillotson v. 
 Wolf, Lea v. 
 
 , Phillipi v. 
 
 Wolfe, Borke v. 
 
 V. , 56 N. F. 115; reversing 7 Lans. 
 
 151; p. 390 (inj.), 712 (trade-mark). 
 Wolff, Stapenhorst v. 
 WoLFORD V. Oakley, 43 How. 118 ; pp. 570 
 
 (practice), 730 (waiver). 
 WoMBOUGH V. Cooper, 2 Hun, 428; pp. 
 
 596, 597 (practice). 
 Wood, Amory v. 
 V. Belden, 54 N. Y. 658 ; pp. 504 (new 
 
 trial), 557 (pleading). 
 V. , 59 Barb. 549 ; pp. 413 (interest), 
 
 504 (new trial), 557 (pleading). 
 
 , Croput v. 
 
 , Elliott v. 
 
 V. FiSK, 4 Hun, 525 ; p. 722 (undtakg. ) 
 
 , Hewlett v. 
 
 , Irvine v. 
 
 V. Lafayette, 46 N. Y. 484; pp. 69 
 
 (arbitration), 166 (contract). 
 V. LocKwooD, 1 Hun, 714 ; p. 469 (mort- 
 
 - V. McClughak, 2 Hun, 150 ; pp. 284 
 (evidence), 479 (mortgage). 
 
 -, Mathews v. 
 
 - V. Mbrritt, 45 How. 471 ; p. 671 (set- 
 off). 
 
 - V. Morehouse 45 N. Y. 368 ; aflg. 1 
 Lans. 405 ; pp. 284 (evid.), 339 (exec. ) 
 
 - V. North Western Ins. Co., 46 N.Y. 
 421 ; pp. 281 (evid.), 397, 400 (ins.) 
 
 - V. People, 53 N. Y. 511 ; pp. 214, 221 
 (criminal law). 
 
 _ „. , 59 N. Y. 117 ; revg. 1 Hun, 
 
 381 ; pp. 213, 216, 220, 227, 230 (crimi- 
 nal law). 
 
 -, Phelps v. 
 
 - V. Phillips, 43 N. Y. 152; pp. 71 (as- 
 sault, etc.), 689 (statutes), 705 (ten. in 
 com.) 
 
 - V. , 11 Abb. i\r. S. 1 ; p. 1 (abate. 
 
 and revivor). 
 
 -, Rock Water Works Co. v. 
 -, Sampson v. 
 
 - V. Sanchey, 3 Daly, 197 ; p. 381 (hus- 
 band and wife). 
 
 -, schermerhorn v. 
 -, Servoss v. 
 
 - V. Shultis, 4 Hun, 309 ; pp. 159 (con- 
 tract), 423 (justice court), 686 (stats.) 
 
 -, Simmons v. 
 
 - V. Squires, 1 Hun, 481 ; p. 728 (vendor 
 and purchaser). 
 
 -: — V . , 60 N. Y. 191 ; p. 691 (submis- 
 sion of controversy). 
 
 V. Terry, 4 Lans. 80 ; pp. 284 (evi- 
 dence), 442 (loan com.), 523 (notice). 
 
 V. Wood, 7 Lans. 204 ; p. 454 (marriage 
 
 and divorce). 
 
 Woodbury v. Deloss, 65 Barb. 501; pp. 
 27 (action), 72 (assignment), 548 (pldg.) 
 
 V. Morton, 44 How. 56 ; pp. 200, 201 
 
 (co.sts), 413 (interest). 
 
 WooDBECK, Avery v. 
 
 Wooden, McCaffrey v. 
 
 Woodford v. People, 3 Hun, 310 ; pp. 211, 
 215, 221 (criminal law). 
 
 WooDGATE V. Fleet, 11 Abb. N. 5. 41 ; 44 
 N. Y.l; pp. 315 (evidence), 838 (exec), 
 351 (former adjudication), 473 (mortg.), 
 717 (trust). 
 
 Woodhull v. Bohenblost, 4 Hun, 399 ; 
 pp. 15 (action), 139 (com. schools). 
 
 WooDiN V. Frazee, 38 N. Y. Supr. 190 ; pp. 
 87 (bankr.), 135 (checks). 
 
 Woodman, Buchanan Farm Oil Co. v. 
 
 Woodruff, Cheney v. 
 
 , Rowland v. 
 
 , Leary v. 
 
 V. Leonard, 1 Hun, 632 ; p. 548 (pldg.) 
 
 , Merbifield v. 
 
 , Rowley v. 
 
 V. Valentine, 57 N. Y. 663 ; p. 43 (ap- 
 peal). 
 
 , Van Kleeck v. 
 
 0. Woodruff, 52 N. Y. 53; p. 163 
 
 (contract). 
 
 Woods, Lewis v. 
 
 V. People, 55 N. Y. 515 ; p. 225 (crimi- 
 nal law). 
 
 V. Wilder, 43 N. Y. 164 ; pp. 178 (con- 
 tract), 537 (partner), 735 (war.) 
 
 Woodward u. BuGSBEE, 2 Sun, 127, 683; 
 pp. 86 (appeal), 160 (contr.), 326 (evid.) 
 
 V. BuGSBY, 3 Hun, 625 ; p. 303 (evid.) 
 
 V. Stearns, 10 Abb. N. S. 395 ; pp. 
 
 108 (broker), 206 (common pleas), 618 
 (practice). 
 
 V. , 11 Abb. JSr. S. 445 ; p. 573 
 
 (practice). 
 
 , Stout v. 
 
 WooDwoRTH V. Bennett, 43 N. Y. 273 ; p. 
 
 12 (action). 
 
 V. Payne, 5 Hun, 551 ; p. 249 (deed). 
 
 V. Sweet, 51 N. Y. 8 ; affg. 44 Barb. 
 
 268. See Digest, vols. i. and ii. 
 
 WOOLBRIDGE V. MaYOR, ETC. OP Nbw 
 
 York, 49 How. 67 ; p. 521 (N. Y. city). 
 
 WOOLEY, CORNWELL V. 
 
TABLE OF CASES. 
 
 905 
 
 WooLF V. Jacobs, 45 How. 408 ; 34 N. Y. 
 
 Supr. 509; pp. 63 (appl.), 506 (newtr.) 
 V. , 36 JV. Y. Supr. 408 ; pp. 157 
 
 (contempt), 612 (practice). 
 
 WOOLSBY, TUOKBK V. 
 
 WoosTERu. Booth, 2 Hun, 426; pp. 313 
 
 (evidence), 756 (witness). 
 Worcester, Scholey v. 
 WoRDBN V. Guardian Mut. L. Ins. Co., 
 
 39 N. Y. Supr. 317; p. 405 (ins.) 
 World Mut. L. Ins. Co., Boos v. 
 V. Bund Hand in Hand, 47 How. 32 ; 
 
 p. 385 (injunction). 
 
 , Fisher v. 
 
 WoRMER V. Canovan, 7 Lans. 36; pp. 78 
 
 (atty.), 578 (practice). 
 WoRMSER u. Garvet, 4 Hun, 476; p. 681 
 
 (spec, perf .) 
 WoRRALL V. MuNN, 53 iV^. F. 185; p. 237 
 
 (damages). 
 
 Worrell, Van Dusen v. 
 
 WoRSTER V. Forty-Second St., etc. E. R. 
 
 Co., 3 Daly, 278; afid. 50 N. Y. 203; pp. 
 
 587 (practice), 646 (E.R. Co.) 
 Worth, Rittbr v, 
 WORTHINGTON V. N. T. Cent. E. E. Co., 6 
 
 Lans, 257; p. 19 (action). 
 Wren v. Cosmopolitan Gas Co., 2 Hun, 
 
 666 ; p. 391 (injunction). 
 Wright, Bruce v. 
 
 , Cheesebrough ». 
 
 V. Hunter, 46 N. Y. 409; pp. 38, 48 I 
 
 (appeal). 
 
 V. Kelley, 4 Lans. 57; p. 429 (landlord 
 
 and tenant). 
 
 , Marine Bank of Chicago v. 
 
 V. Marshall, 3 Baly, 331; pp. 23 
 
 (action), 607 (practice). 
 
 , People ex rel. Seller v. 
 
 V. Pierce, 4 Hun, 351 ; pp. 16 (action), 
 
 658 (sale), 731 (waiver). 
 
 V. Saunders, 65 Barl. 214; affd. 36 
 
 How. 136 ; 3 Keyes, 323 ; pp. 55 (app.), 
 374 (highway), 525 (nuisance). 
 
 , Sherman v. 
 
 , Smith w. 
 
 , Tapt v. 
 
 V. Wright, 54 N. Y. 437 ; a,feg. 59 Barh. 
 
 505 ; pp. 24 (action), 92, 102 (bill? and 
 notes), 381 (husband and wife), 555 
 (pleading). 
 
 V. , 48 How. 1; pp. 807 (evidence), 
 
 451 (marr. and div.) 
 
 WURTS, DUPUY V. 
 
 WusT, Holm v. 
 
 Wyckofp, Feaser v. 
 
 K. Meyers, 44 N. Y. 148 ; pp. 6 (act.) ' 
 
 164 (contr.) 
 V. Queen's Co. Ferry Co., 52 N. Y- 
 
 32; pp. 126 (carrier), 297, 306 (evidence), 
 
 491 (negligence). 
 Wylde v. Northern R. E. Co., 14 Ahb. 
 
 N. S. 213; 53 iV. Y. 156; pp. 26 (act.), 
 
 284 (evidence), 495, 500 (negligence). 
 Wyman, Brackbtt v. 
 
 T. 
 
 Tale v. Baker, 2 Hun, 468 ; pp. 344 (exrs. 
 and adm.), 697 (surrogate). 
 
 , Waring v. 
 
 Yates v. Hoffman, 5 Hun, 113 ; pp. 290 
 (evidence), 343 (exrs. and admrs.), 548 
 (pleading). 
 
 V. Lyon, 61 Barb. 205 ; pp. 75 (assig- 
 
 ment for benefit), 351 (former adjudi- 
 cation), 580 (practice). 
 
 V. North, 44 N. Y. 271 ; pp. 35 (ap- 
 peal), 618 (practice). 
 
 V. Olmstead, 56 N. Y. 632 ; modify- 
 ing 65 Barb. 43, 462 ; pp. 183 (chattel 
 mortgage), 757 (witness). 
 
 V. Van Db Bogart, 56 N. Y. 526 ; pp. 
 
 29 (adverse poss.), 246 (deed), 284 (evi- 
 dence), 646 (R. R. Co.)- 
 
 , Wells v. 
 
 Teager, Morehouse v. 
 
 Yenni v. McNamee, 45 N. Y. 614 ; pp. 133 
 
 (chattel mort.), 137 (claim and del.), 662 
 
 (sale). 
 Ynguanzo v. Salomon, 3 Daly, 153 ; pp. 
 
 548 (plead.), 581 (pract.), 757 (witness). 
 YoBKB V. Veb Planck, 65 Barb. 316 ; pp. 
 
 168 (contract), 235 (damages). 
 YouMANS, Stranaghan v. 
 
 , Village of Delhi v. 
 
 Young v. Allyn, 45 How. 442; p. 199 (costs). 
 V. Atwood, 5 Hun, 234 ; pp. 240 
 
 (damages), 311 (evidence), 609 (practice). 
 Young, Babbett v. 
 V. Hebrmans, 5 Hun, 121; p. 210 (cred. 
 
 bill). 
 
906 
 
 TABLE OF CASES. 
 
 Young, HtrsoN v. 
 
 , Ingram v. < 
 
 , Mattoon v. 
 
 V. Pacific Mut. Ins. Co., 34 N. Y. Supr 
 
 321 ; pp. 297 (evidence), 412 (ins.) 
 
 , QUINCEY V. 
 
 V. Western Union Telegraph Co. , 
 
 34 N. r. Supr. 390 ; p. 704 (Telegraph 
 Co.) 
 
 Younghanse !/. Fingar, 43 How. 259 ; 63 
 Barb. 299 ; 47 N. Y. 99 ; p. 67 (appeal.) 
 
 Young Men's F. M. Benevolent Soc'y. , 
 
 People ex rel. Cobrigan v. 
 Youngs v. Kent, 46 N. Y. 672 ; reversing 2 
 
 Sweeny, 248 ; p. 558 (pleading). 
 , V. Youngs, 45 N. Y. 254; p. 747, 750 
 
 (will). 
 
 V. , 53 N. Y. 613 ; p. 721 (trusts). 
 
 Young Stone Dressing Co. v. Wardens, 
 
 &c. OP St. James Ch. 61 Barh. 489 ; p. 
 
 74 (assignment), 460 (meohs. lien). 
 Yulee, Vose v. 
 
 z. 
 
 Zett, Sexton v. 
 
 Zimmerman v. Schoeneeldt, 3 Hun, 692 ; 
 pp. 57 (appeal), 231 (curtesy), 377 (husb. 
 and wife), 559 (pleading), 578, 585 (prac- 
 .tice), 737 (will). 
 
 ZiNGSEN, Mbriden Britannia Co. *. 
 
 ZiNK, Johnson v. 
 
 ZiNN, In matter op, 43 How. 64 ; overrul- 
 ing 40 How. 461 ; p. 88 (bankruptcy). 
 
 V. New Jersey Steamboat Co.| 49 
 
 N. Y. 442 ; pp. 119 (carrier), 254 (de- 
 fence), 588 (practice). 
 
 ZiTTLOSON, Gillespie v. 
 
 Zogbaum w.'Pa;rker, 55 N. Y. 120 ; p. 12 
 (action). 
 
 Zollikopper v. Havembyer, 2 Hun, 300 ; 
 pp. 507, 511 ( N. Y. city). 
 
GENERAL INDEX. 
 
 A. 
 
 Abandonment : 
 
 Of insured property, 412. 
 Abatement : 
 
 Of legacy, 738 ; of nuisances, 525 ; pleading, 
 555. 
 Abatement and Revivor : 
 
 Wlien actions abate, 1. Revivor, '2, 3. 
 How revived, 562, 575. 
 Abduction : 
 
 Action for, 3. 
 Abortion : 
 
 Evidence on trial for, 222, 223. 
 Absent and absconding debtors : 
 
 Attachment against, 618. 
 Accord and satisfaction : 
 
 Wliat amounts to, 3, 4. 
 Account Books : 
 
 As evidence, 290, 291. 
 Accounts and Accounting : 
 
 Account stated ; action for accounting, 4. 
 Accounting by executors, 344, 345; by 
 guardians, 368 ; by partners, 538 ; by 
 trustees, 721. 
 Acknovrledgment of deeds : 
 
 Form of certificate, 4, 243. 
 Actions : 
 
 General principles, 5 ; when will lie, 5-10 ; 
 when will not lie, 10-14 ; given by stat- 
 ute, 14, 15 ; against public officers, 15 ; 
 splitting causes of action, 15, 16 ; elec- 
 tion of remedies, 16, 17 ; local or tran- 
 sitory, 17 ; demand or tender before 
 action, 17, 18. 
 Parties to actions : in general, 18 ; real party 
 in interest, 19, 20 ; trustee of express 
 trust ; public officers, 21, 22 ; promise 
 for benefit of third party; on cove- 
 nants, 22 ; partners and tenants in com- 
 mon, 23 ; shareholders in corporations 
 and joint stock companies, 24; husband 
 and wife, 24, 25; assignees in bank- 
 ruptcy ; parties to same instrument, 25 
 
 miscellaneous cases, 25, 27 ; eijuitable 
 actions, 27, 28. 
 See also, assault and battery, 71 ; bills and 
 notes, 102 ; carfiers, 115 ; coi^orations, 
 188 ; conversion, 180 ; covenants, 206 ; 
 ejectment, 265 ; equity, 270 ; executors, 
 343 ; false imprisonment, 347 ; forcible 
 entry, etc., 349 ; foreclosure, 470 ; hus- 
 band and wife, 380 ; landlord and 
 tenant, 430 ; libel, 435 ; mandamus 
 444 ; mechanic's lien, 461 ; money had 
 and received, 464 ; money paid, 465 ; 
 negligence, 488 ; nuisance, 525 ; quo 
 warranto, 638 ; religions corporation, 
 651 ; replevin, 655 : seduction, 6^0 ; 
 sheriff, 673; ships, 674; slander, 676; 
 specific performance, 677; trespass, 
 713; trustees, 718, 719; wills, con- 
 struction of, 753 ; parties to actions, 
 529. 
 Adjournment : 
 
 In justice's courts, 423 ; in courts of record, 
 576. 
 Adjudication : 
 
 When conclusive, 350, etc. ; validity, etc., 
 415. 
 Adjustment of loss : 
 
 Insurance, 403. 
 Admeasurement of dower : 
 
 Effect of, 261. 
 Administrator : 
 
 Appointment, powers, etc., 341, 345. 
 Admiralty : 
 
 Jurisdiction, 28. 
 Admissions : 
 
 As evidence, 222, 311-316 ; in pleading, 561. 
 Adultery : 
 
 Divorce for, 452. 
 Advancement : 
 
 What is, 28. 
 Adverse Possession: 
 
 What constitutes, 29 ; title by ; conveyance 
 of lands adversely possessed, 30. 
 
908 
 
 GENERAL INDEX. 
 
 Affidavit : 
 
 Before whom, 30 ; for attachment, 76, 617 ; 
 for arrest, 614, 615 ; for publication . of 
 summons, 569, 570 ; of mailing, 570 ; 
 for discovery and examination of party, 
 572, 573, 576 ; of merits, 574 ; for post- 
 ponement of trial, 676; on motions, 
 compulsory, 626, 
 
 Agricultural Society : 
 Powers and rights, 30. 
 Albany : 
 
 Contracts, powers and liabilities, 31. 
 Alien: 
 
 Descent ; suit by, 32. 
 Alimony : 
 
 When granted ; how payment enforced, 
 453, 454. 
 Alteration of instruments : 
 
 Of bills and notes, 94 ; of contracts, 171. 
 Amendments : 
 
 When may be granted ; what may be amend- 
 ed, 32, 33 ; on appeal, 66 ; of pleadings, 
 564, 565 ; practice as to, 602 ; of judg- 
 . ment, 608. 
 Animals : 
 
 See chap. 12, Laws 1874. 
 Cruelty to ; seizure when trespassing, 33. 
 Another action pending : 
 
 When a bar, 33 ; pleading, 555. 
 Appeal : 
 
 To oouKT OF APPEALS, When lies, 34 ; when 
 does not lie, 35-39 ; who may appeal; 
 time for appealing; security on appeal, 
 40; what questions may be raised, 40-45 ; 
 decision on appeal, 45-47 ; intendments ; 
 supplying proofs and defects, 47 ; dis- 
 missal ; rehearing ; remittitur, judgment* 
 and costs, 48, 49 ; practice in general; 
 49, 50. 
 
 To GENERAL TEEM OP SUPREME COURT ; 
 
 When lies, 50-53 ; who may appeal ; 
 time for appealing; security, stay of 
 proceedings, 53, 54 ; what questions may 
 be raised, 54^58 ; intendments, 58, 59 ; 
 dismissal, 69 ; rehearing, 60 ; decision on 
 appeal, 60-63 : costs, 63, 64 ; practice in 
 general, 64, 65. 
 
 From county to supreme court ; in what 
 cases ; how reviewed, 65. 
 
 From justices' courts to county courts ; 
 Notice of appeal ; undertaking, 66 ; prac- 
 tice ; decision, grounds for, 66 ; costs, 
 67. 
 
 From surrogates' coIjrts ; Security ; who 
 may appeal; practice, 68. 
 Appearance : 
 
 In justice's court, 422 ; in courts of record, 
 570, 571 ; waiver by, 730. 
 Application of payments : 
 
 How made, 541, 642. 
 Apprentice : 
 
 Who may bind; the indentures; how dis- 
 solved, 69. 
 Arbitration : 
 
 The submission, 69 ; practice, 70 ; the award, 
 70, 71. 
 Arrest : 
 
 In civil cases, 71, 613 ; in criminal cases, 
 210. 
 Arson : 
 
 See chap. 644, Laws of 1873. 
 The crime, 211 ; indictment for, 215. 
 Assault and Battery. 
 Civil action for, 71. 
 Assent ; 
 
 To contract, 161 ; to marriage, 451 ; ratifi- 
 cation by, 632. 
 Assessments : 
 
 By municipal corporations, 486, in New 
 York ; city, 515-520 ; of taxes, 698-702. 
 Assessors : 
 
 Judicial acts, 71 ; liability, 15, 527, 702. 
 Assignment. 
 
 What may be assigned, 71 ; what passes by, 
 72 ; rights of parties, 73, 74; when fraudu- 
 lent, 659 ; of lease, 429 ; of mortgages, 
 471. 
 Assignment for benefit of creditors : 
 See chap. 600, Laws 1874. 
 How made ; validity, 74, 76 ; powers and 
 duties of assignees, 75, 76. 
 Assistance, writ of : 
 When issued, 482. 
 Assumpsit : 
 
 See Actions, money paid. 
 Attachment .- 
 
 The affidavit ; when proper ; priority, 76 ; 
 practice in, 617-620 ; for contempts, 155- 
 157 ; of ships, 673, 674. 
 Attorney General ■ 
 
 Powers of ; actions by, 76. 
 Attorney and client : 
 
 Admission ; striking from rolls, 76 ; au- 
 thority ; compensation ; lien, 77, 78; 
 duty and liability, 79. 
 Auction : 
 
 Sale by ; compensation, 80. 
 
GENERAL INDEX. 
 
 909 
 
 B. 
 
 BaU. 
 
 In civil actions ; 80, 615 ; in criminal cases, 
 80. 
 Bailments 
 
 Duty and liability of bailee, 81 ; rights and 
 limitation of liability, 82. 
 Banks and Banking : 
 
 Cashier's duty and liability, 82 ; authority of, 
 83 ; liabilities of bank, 83, 84 ; receiver ; 
 transfer of assets .; national banks ; 
 savings banks, 85. 
 Bankruptcy : 
 
 Act of congress paramount, 85; jurisdiction ; 
 composition ; powers and duties of reg- 
 ister, 86; assignee's duty, removal,riglits, 
 actions and fees, 87 : effect of proceed- 
 ings and discharge, 88, 89 ; distribution ; 
 appeal, 89 ; costs and fees, 90. 
 Battery : 
 
 Assault and battery, action for, 71. 
 Bequest : 
 
 Construction and validity, 740-753. 
 Betting and Gaming : 
 
 Action for money deposited, 90. 
 Bills in Equity : 
 
 See Equity, 270 ; Pleading, 544. 
 Bill of Bzceptions : 
 
 On appeal to court of appeals, 49 ; to supreme 
 court, 54, 59; on motion for new trial, 606. 
 Bill of Lading : 
 
 Who bound by ; conditions ; transfer, 90, 91 ; 
 delivery of, 661. 
 Bills and Notes : 
 
 Paries ; construction, 91 ; consideration ; 
 negotiability ; transfer, 91, 92 ; indorse- 
 ment ; indorser's liability ; stoppage in 
 transitu ; rights of holder, 93 ; accept, 
 ance ; alteration, 94, 95 ; days of grace ; 
 time payable ; demand, 95 ; protest and 
 notice, 96 ; consideration and defenses; 
 96, 97 ; hona fide holder, who is, 98, 99 ; 
 when protected, 99-101 ; indorser, how 
 discharged, 101, 102; actions on, 102. 
 
 Bill of particulars : 
 
 When will be required, 571, 572. 
 BiU of Sale : 
 
 Effect of delivery of, 661. 
 Boats : 
 
 Collection of demands against, 673-676. 
 Bona fide holder : 
 
 Of bills and notes, 98. 
 Bona fide purchaser : 
 
 Who is, 102-105. 
 Bonds : 
 
 Official ; municipal, 105, 106, 708 ; in suits ; 
 indemnity, 106, 107 ; construction ; in- 
 terest ; negotiability, 107. 
 Books of account : 
 
 As evidence, 290, 291, 
 Borrower : 
 
 Who is, 724. 
 Boundaries : 
 
 Agreement ; practical location, 107, 246 ; 
 under deeds, 245. 
 Bounties: 
 
 Agreement; statute, 108; who entitled to. 
 528 ; action for, 707. 
 Bridges : 
 
 Erection and repair, 374 ; liability for cost, 
 708. 
 Broker : 
 
 Authority; compensation, 108, 109 ; duty and 
 ' liability, 109-111. 
 Brooklyn: 
 
 Alteration of map ; advertisement for pro- 
 posals, 111 ; assessments, 112, 113 ; city 
 court ; sale of lands ; liability ; licenses 
 113. 
 Buffalo : 
 
 Assessments ; bridges, 114. 
 Burial Ground : 
 
 Appropriation to other purposes, 114. 
 Burglary: 
 
 Evidence on indictment for, 221. 
 By-la-w : 
 
 c. 
 
 Of corporation, 185., 
 Canals : 
 
 Appeals ; claims ; contractor's liability, 114, 
 115 ; extra work ; rights of passenger 
 boat ; use of waters, 115. 
 Carrier : 
 
 Of goods; the contract, 115; limitation of 
 liability, 116, 117; through contract, 117, 
 118 ; duty and liability of carrier, 118- 
 123 ; compensation and lien, 123, 124. 
 
 Of animals ; liability, 124. 
 Of passengers ; the contract, 124, 125 ; liabil- 
 ity for baggage, 125-127 ; liability for 
 injury to passenger, 127-128. 
 Case for new trial : 
 
 Form and substance, 49, 606. 
 Cases Criticised : 
 
 Table of, 1. 
 Cattle in highways : 
 
 Application of statute, 128 ; action for -in- 
 juries by, 713. 
 
910 
 
 GENERAL INDEX. 
 
 Cause of action : 
 
 What is, 5-28. 
 Cemeteries : 
 
 Acquiring lands ; conveyances ; title, 128. 
 Certificate of deposit : 
 
 Liability of indorser, 128. 
 Certiorari : 
 
 At whose instance lies ; in what cases, 129, 
 130; what questions reviewable, 130, 
 131 ; practice, 131, 132. 
 Challenge to jurors : 
 
 In criminal cases, 217, 218 ; in civil cases, 
 578. 
 Champerty : 
 
 Contract with attorney, 77. 
 Chancery : 
 
 Equity and equitable rights, 270-273. 
 Character : 
 
 Evidence as to, 302, 306, 306, 757 ; iniuries 
 to, 435, 676. 
 Charge to jury : 
 
 What proper ; exceptions to, 594-597. 
 Charitable Associations : 
 
 Formation of, 184 ; powers, 132 ; devisea.to, 
 741. 
 Charter party ; 
 
 Construction ; rights of parties, 132. 
 Chattel mortgage : 
 
 What is, 132 ; validity, 133 ; rights of par- 
 ties, 133, 134; filing, 134; priority, 
 transfer, 135. 
 Checks : 
 
 Memorandum ; presentment, certification, 
 135, 136 ; lost ; bonajide holder, 136. 
 Children : 
 
 Custody ; contracts, 383, 528 ; negligent in- 
 jury to, 498 ; devise to, 741-753. 
 Chose in action : 
 
 Assignment of, 72. 
 Church : 
 
 Religious corporations, 651. 
 Citizeilship : 
 
 Of corporations, 654. 
 Civil damage act : 
 
 Application of ; right of action, 136. 
 Claim and delivery : 
 
 Action of, 137. 
 Claims to real property : 
 
 Adverse possession, 29 ; actions to deter- 
 mine, 257, 265. 
 Clearing house : 
 
 Rights of parties, 137. 
 Cloud on title : 
 
 Wliat is, 137, 138; action to remove, 16, 
 270. 
 Code: 
 
 Pleading under, 544 ; practice, 669 ; con- 
 struction, 684. 
 Codicil : 
 
 Revocation by, 738 
 
 Collector of taxes : 
 
 Duty and liability, 702, 708. 
 Collision : 
 
 Liability for,'489. 
 Color of office : 
 
 Officer de facto, 525, 526. 
 Color of title : 
 
 Possession under, 29. 
 Commission to examine witnesses ■ 
 
 When and how issued, 256, 754. 
 Commissioners of emigration ' 
 
 Liability for baggage, 139. 
 Commissioners of highways .- 
 
 Powers, 372, 373 ; liabilities, 374, 375. 
 Common carriers : 
 
 Contracts, liabilities, etc., 115-128. 
 Common pleas : 
 Court of, 205. 
 Common schools : 
 
 Power of trustees ; assessments ; collector, 
 139 ; action ; costs, 140 ; district tax, 
 702. 
 Comparison of hands: 
 As evidence, 294, 295. 
 Compensation : 
 
 For indirect injury to property, 140 ; for 
 property taken for public use, 149, 150; 
 by railroads, 641, 642 
 Competency of -witness : 
 
 Who competent, 764r-757. 
 Complaint : 
 
 Form and substance, 544-551. 
 Composition with creditors : 
 
 When sustained, 140. 
 Compromise : 
 
 Effect of, 140. 
 Condition precedent: 
 
 In contract, 169-171 ; in deed, 249; in sale 
 666. ' 
 
 Conditional sale : 
 
 What is, 658 ; effect of, 661 ; validity, 559. 
 Confession : 
 
 As, evidence, 222, 311-316. 
 Confusion of goods: 
 
 By freshet, 140. 
 Consent : 
 
 To contract, 159, 160; to marriage, 451, 
 452 ; jurisdiction by, 417, 418. 
 Consideration : 
 
 What constitutes, 141 ; for contract, 160, 
 161.. 
 Consignor and consignee : 
 
 Liabilities, 141 
 Constitutional law : 
 
 Construction of statutes, 141, 142 ; enact- 
 ment of statutes ; local and private acts, 
 142-144 ; two-thirds bill, 144 ; legislative 
 powers, 144-146 ; judicial powers, courts 
 and jurisdiction, 146, 147 ; impairing 
 contracts or vested rights, 148 ; expost 
 facto laws, 148, 149 ; eminent domain ; 
 
GENERAL INDEX. 
 
 911 
 
 compensation, 149, 150, trial by jury, 
 due process of law, 150, 151 ; corpora- 
 tions ; taxation, 152, 153 ; commerce 
 and navigation, 15.3, 154 ; rights of ci- 
 tizens; officers, 154, 166. 
 Construction : 
 
 Of constitution, 141, 142 ; of contracts, 162- 
 168 ; of deed, 243, 244 ; of lease, 425, 
 426 ; of pleadings, 563 ; of statutes, 684- 
 690 ; of wills, 744-753. 
 Constructive possession : 
 
 On sale, 661, 662. 
 Contempts .- 
 
 What punishable as, 155-157 ; proceedings 
 for, 167, 168 ; disabilities ; punishment, 
 168. 
 Contract : 
 
 Parties ; implied contract, 169, 160 ; consid- 
 eration, 160, 161 ; mutuality ; law of 
 place, 162; construction in general, 162- 
 164 ; of particular contracts, 164-168 ; 
 optional contracts, 168 ; alternative ; 
 continuing, 169; conditions, 169-171; 
 alteration ; modification ; reformation, 
 171,172; rescission, 172-175; perform- 
 ance, 175-177; validity, 177-180; of 
 sale, 658 ; for sale of lands, 726 ; spe- 
 cific performance of, 677. 
 Contribution : 
 
 Who entitled to, 180. 
 Conversion : 
 
 When action lies for, 180-182 ; when does 
 not lie, 182, 183. 
 Conveyance : 
 
 Deed, 242 ; mortgage, 469. 
 Conviction : 
 
 Of criminal, 226. 
 Copies : 
 
 As evidence, 287. 
 Copyright : 
 
 When entitled to protection, 183 ; protection 
 by injunction, 387. 
 Corporations c 
 
 Organization, 183, 184; stock, 184, 185; 
 officers, 186 ; powers, 185, 186 ; liabil- 
 ities, 186-188 ; actions by and against, 
 188, 189; stockholder's liability, 189, 
 190; liability of trustees, 191-193; dis- 
 solution, 193 ; receiver, 194. 
 Costs : 
 
 Who liable for ; who entitled to, 195, 196 ; 
 payment after action commenced ; se- 
 curity for, 196 ; motion costs, 196, 197 ; 
 
 costs in particular cases, 197-199; in 
 equity cases, 199 ; taxation of, 199 ; 
 taxable items, 200, 201; extra allow- 
 ance, 202, 203 ; appeal from taxation, 
 204. On appeals, 49, 63, 64, 67, 68. 
 Counterclaim : 
 
 What constitutes, 204; pleading, 663-555 
 C - unterf eiting : 
 
 Forgery, 212, 216. 
 Counties : 
 
 Property, of, 204. 
 County charges : 
 
 What proper, 204. 
 County court : 
 
 Jurisdiction, 205; appeals from, 65. 
 County judge: 
 
 Who is ; powers of, 205. 
 County treasurer : 
 
 Bond ; term ; right to interest, 205. 
 Court of common pleas : 
 
 Judges; jurisdiction; officers; appeals to; 
 costs, 205, 206. 
 Courts martial: 
 
 Constitutionality, 206. 
 Covenants : 
 
 By grantee ; by lessee, 206 ; implied ; ex- 
 press, 207 ; running with land, 207, 208 
 construction ; breach. 208. 
 Creditor's bill : 
 
 When and by whom action can be main- 
 tained, 208, 209 ; what property can be 
 reached by, 209 ; practice, 209, 210. 
 Criminal law: 
 
 General principles, 210; crimes and mis- 
 demeanors, 211-214 ; the indictment 
 214-217 ; pleas and defenses, 217 ; the 
 trial, 217-220 ; evidence, 220-225 ; wit- 
 nesses, 226 ; conviction, 226 ; sentence 
 commitment; exceptions, 227; new 
 trial, 227, 228 ; appeal ; certiorari, 228, 
 229; writ of error, 229-231. 
 Cross-ezamination : 
 
 In criminal cases, 218, 224 ; in civil cases, 
 583, 684. 
 Cruelty : , 
 
 To animals, 33, 211. 
 Cumulative evidence : 
 
 On motion for new trial, 604. 
 Curtesy : 
 
 Estate by, 231. 
 Custom : 
 
 Whenbinding, 231, 722; evidence of, 322, 
 328. 
 
 D. 
 
 Damages : 
 
 Liquidated, 231, 232 ; penalty ; exemplary ; 
 in actions on contract; natural ; conse- 
 quential; prospective, 23; compensa- 
 
 tory, 233 ; loss of profits ; performance 
 prevented, 234 ; contract or market 
 price ; for personal employment ; on 
 warranty, 235 ; against carriers, bailees 
 
912 
 
 GENERAL INDEX. 
 
 and pledgees, 236'; against lessor or les- 
 see; against grantor or grantee, 236, 237 ; 
 for injuries to person, 237, 238 ; for in- 
 juries to personal estate, 238-241 ; for 
 injuries to real estate, 241. 
 Damage feasant : 
 
 Taking up cattle, 128. 
 Dams: 
 
 Detention of water by, 736. 
 Days of Grace. 
 
 What bills entitled to, 95. 
 Death by Negligence : 
 See Negligence, 488, etc. 
 Damages for, 238. 
 Debtors : 
 
 Discharge from imprisonment.893, 394. 
 Deceit : 
 
 Knowledge of falsity, 242; fraud in general 
 355-357. 
 Declaration : 
 
 Evidence, 311-316 ; pleading, 544^551. 
 Decree : 
 
 In general, 415, 416 ; form and effect, 606- 
 608. 
 Dedication : 
 
 What constitutes, 242. 
 Deed: 
 
 Execution and delirery ; parties, 243 ; con- 
 struction, 243, 244 ; validity ; description 
 of land, 245 ; governing calls ; practical 
 location, 246 ; appurtenances ; estate 
 conveyed, 247, 248 ; title by estoppel, 
 248 ; conditions ; exceptions ; reserva- 
 tions, 249 ; recording, effectof, 249, 250 ; 
 reforming deeds, 650; setting aside 209 
 357. 
 Defamation : 
 
 Libel, 435; slander, 676. 
 Default : 
 
 Judgment by, 605. 
 Defeasance : 
 
 See Mortgage, 469. 
 Defences : 
 
 What are good, and how to be pleaded, 250- 
 255 ; pleading, 551-559. 
 Demand before Action : 
 
 When necessary, 17, 18, 180-183. 
 Demurrage : 
 
 When recoverable, 256 ; for Sunday, 673. 
 Demurrer : 
 
 Pleading, 559. 
 Denial: 
 
 Pleading, 552. 
 Deposition : 
 
 Taking and admission in evidence, 256, 257, 
 288, 754. 
 
 Deputy : 
 
 Sheriff liable for acts of, 672. 
 Descent : 
 
 Of property, 257. 
 Determining claims to real property : 
 
 Action for, 257, 258 ; ejectment, 266-268, 
 Devise: 
 
 Validity and construction, 740-753. 
 Discharge : 
 
 In bankruptcy, 88, 89; from imprisonment, 
 893, 394 ; from arrest, 616 ; from attacli- 
 ment, 620. 
 Discontinuance : 
 
 Of suit, 577. 
 Discovery : 
 
 Of books and papers, 572. 
 Dismissal of complaint : 
 
 Practice as to, 579. 
 Disorderly conduct: 
 
 Security for good behavior, 258. 
 Distribution : 
 
 By order of surrogate, 697. 
 District Courts of Ne'w York City : 
 
 Officers ; jurisdiction ; practice, 258, 259. 
 Divorce : 
 
 Grounds for and validity, 452 ; evidence in, 
 329. 
 Docket : 
 
 See Justice's court, 422. 
 Dogs : 
 
 Cruelty to, 211. 
 Domicil : 
 
 What is, 259 ; law of as affiecting wills, 742. 
 Dower : 
 
 The rights ; how barred ; merger, 260 ; pro- 
 vision by will in lieu of, 260, 261, 745 ; 
 admeasurement ; action for, 261. 
 Draft: 
 
 Money not on deposit, 261 ; in general, 91- 
 102. 
 Drainage : 
 
 Surface water, 261, 262, 736. 
 Dra^wer and Dra-wee : 
 
 Of bills, 91-li)2. 
 Drunkenness : 
 
 Liability for causing, 136, 385 ; no excuse for 
 crime, 213. 
 Duplicity : 
 
 See Pleading, 544 etc 
 Duress : 
 
 What is not, 262 ; effect of on contract, 173 ; 
 on will, 740. 
 Dying declarations : 
 
 As evidence, 222. 
 
GENERAL INDEX. 
 
 913 
 
 E. 
 
 HaBement : 
 
 What is, and how created, 247, 262 ; when 
 purchaser takes subject to ; rights of 
 parties ; extinguishment, 263 ; ditch ; 
 drainage ; lateral support ; party wall, 
 264 ; rights of way, 265. 
 Ejectment: 
 
 Who can maintain, 265; against whom; title 
 necessary, 266 ; defenses 266, 267 ; evi- 
 dence, 267-329 ; practice, judgment, 268- 
 Election of actions : 
 
 Between different actions or remedies, 16, 
 17. 
 Elections : 
 
 Cauvasser's powers, 268 ; TOtes, 269. 
 Emblements : 
 
 Wlio entitled to, 429. 
 Eminent domain : 
 
 The right arid its exercise, 269; constitu- 
 tional power as to, 149. 
 Employe : 
 
 Who is, 269 ; relations with master, 454- 
 456; liability for injury to, 491, 492. 
 Eoglish laws : 
 
 Ecclesiastical, not in force here, 269. , 
 Equitable mortgage: 
 
 Wliat is, 469. 
 Equity and equitable rights: 
 
 General principles ; in what cases relief 
 will be granted, 270-272; injunctions, 
 384-389 ; specific performance, 677-682. 
 Equity of redemption : 
 
 Of mortgaged premises, 474. 
 Error, vrrit of : 
 
 lu criminal cases, 229. 
 Escape : 
 
 Action for, 273 ; liability of sheriff, 527. 
 Escrow: 
 
 Delivery of deed, 243. 
 Estate for life: 
 
 Life tenant, liability ; surrender, 705. 
 Estoppel: 
 
 By deed, 273, 274; by record, 274, 275 ; in 
 pais, 275-281. 
 Eviction : 
 
 What is, and effect of, 431-433. 
 Evidence : 
 
 Judicial notice, 281 ; presumptions, 281-286 ; 
 statutes; foreign laws; judgment re- 
 cords, 286 ; judicial proceedings, 287 ; 
 
 affidavits ; depositions ; minutes ; plead- 
 ings, 288; public documents; official 
 certificates, 288-290 ; recitals ; account 
 books, 290, 291 ; other private writings, 
 293,294; handwriting, 294,295; hear- 
 say, 295; burden of proof, 296-299; 
 best evidence, 299-301 ; relevancy and 
 CO mpetency, 301-311 ; confessions and 
 declarations, 311-316; res gistce, 816 j 
 parol evidence to explain, contradict 
 or vary writings, 316-322 ; custom, 
 usage, 322-324 ; opinions and belief of 
 witnesses, 324-326 ; former testimony, 
 326 ; evidence in particular actions, 
 326-334. 
 
 Exceptions bill of: 
 
 What to contain, 49, 54, 59, 606. 
 
 Ezcise laws: 
 
 Construction and application of, 334,335. 
 
 Execution : 
 
 Form; issuing, 335; against person, 335, 
 336 ; against goods and chattels ; what 
 exempt, 336, 337 ; levy and lien, 337, 
 338; against real estate, 338; levy and 
 sale, 338, 339 ; setting aside execution 
 and sale, 339, 340 ; redemption, 340 ; 
 practice as to, 611 ; supplementary pro- 
 ceedings, 612. 
 
 Executors and administrators : ' 
 
 Jurisdiction ; letters ; bond, 341 ; assets ; 
 powers and duties ; sales of real estate, 
 342 ; claims, presentment of ; actions 
 and proceedings against, 343; payment 
 of debts and legacies ; accounting, 344, 
 345. 
 
 Exemplifications : 
 As evidence, 287. 
 
 Exempt property : 
 What is, 336, 337. 
 
 Ex post facto : 
 Laws, 148, 149. 
 
 Express company: 
 
 Duty, 346 ; liability as carrier, 116-123. 
 
 Extending time: 
 
 To answer ; to appear, 574 ; as a defense, 
 97 ; discharge of indorser by, 101 ; dis- 
 charge of surety by, 636. 
 
 Extradition : 
 
 State law ; detention for other cause ; treaty 
 with France, 346. 
 
 F. 
 
 Factor : 
 
 Who is ; powers ; pledge by, 346 ; receipt ; 
 commissions ; lien, 347. 
 False imprisonment: 
 
 Grounds of action for, 847, 348. 
 58 
 
 False pretenses: 
 
 The offense, 211 ; indictment for, 215. 
 False representation : • 
 
 When actionable, 355 ; as a defense, 252 ; 
 pleading, 556; rescission for, 173, 663. 
 
914 
 
 GENERAL INDEX. 
 
 False return : 
 
 Liability of officer for, 348, 672. 
 Father : 
 
 Eights of, 69, 383. 
 Fees : 
 
 In general, 200 ; of attorneys, 77 ; of auc. 
 tioneer, 80 ; of guardians, 369 ; of sheriff, 
 673. 
 Feigned issue : 
 
 Practice as to, 599. 
 Felony : 
 
 What is. 211, etc. 
 Feme covert : 
 
 Dealings with husband, 376 ; separate prop- 
 erty and business, 377-380. 
 Fences : 
 
 Division fences, 348; railroad companies> 
 duty and liability as to, 644 ; entry to 
 build ; trespass after removal, 713. 
 Fiduciary capacity: 
 
 Duties and disabilities arising from, 79, 109, 
 342, 634 ; arrest for money received, 
 614. 
 Finding : 
 
 By court, 599; by referee, 603." 
 Fire insurance: 
 
 In general, 395, etc. 
 Fishery : 
 
 In navigable waters, 849. 
 Fixtures : 
 
 What are, 349 ; tenant's right to, 429. 
 Flowing lands : 
 
 Injuries by, 261 ; 736. 
 
 Forcible entry and detainer : 
 
 Action for, 349. 
 Foreclosure : 
 
 Statutory, 474-476 ; by action, 476-482. 
 Foreign corporations : 
 
 Contracts ; jurisdiction ; actions against, 
 350. 
 Forfeiture : 
 
 Equitable relief against, 271. 
 Former adjudication : 
 
 In general, 350 ,' when conclusive, 351-354 ; 
 who bound by, 354, 355 
 Fraud : 
 
 When actionable, 355, 356 ; effect of ; relief 
 against, 356, 357 ; as a defense, 252; 
 pleading, 556 ; rescission for. 173, 663. 
 Fraudulent conveyances : 
 
 What are, 357, 358, 75; action to set aside, 
 209. 
 Frauds, statute of ; 
 
 Sales and conveyances intended to hinder, 
 delay or defraud creditors, 359, 360 ; 
 for the conveyance of lands or interests 
 therein, 360; not to be performed in 
 one year; special promises to answer 
 for debt of another, 361; for sale of chat- 
 tels, 362-364. 
 Freights : 
 
 Right to ; liability for, 123, 141. 
 Frivolous Pleading : 
 
 What is, 557-559. 
 
 Fugitive from justice : 
 
 Rendition of, 364. 
 
 G. 
 
 Gas Company: 
 
 Eights of, 365. 
 General Denial : 
 
 In pleading, 552. 
 Gift: 
 
 Inter vivos ; revocation ; cavisa mortis, 365, 366. 
 Good Wm. 
 
 Protection of, 366. 
 Grace, days of: 
 
 When allowed, 95. 
 Grand Jury: 
 
 Plea to illegality of, 217. 
 
 Guaranty : 
 
 What is ; construction and effect, 866,- 
 367. 
 Guardian ad litem : 
 
 Appointment, of, 570; setting aside judg- 
 ment for want of, 610. 
 Guardian and Ward : 
 
 Appointment, 367; removal; powers; sales 
 by ; accounting, 368 ; compensation, 
 369. 
 Guest : 
 
 Liability of innkeeper to, 82. 
 
 H. 
 
 Habeas Corpus : 
 
 Jurisdiction ; who may issue ; where return, 
 able ; in what cases may issue ; what 
 may be inquired into, 369, 370 ; decision ; 
 second writ, 370, 371 
 Hand'writing : 
 
 Proof of, 294. 
 
 Hearsay : 
 
 Admissibility in evidence, 295. 
 Heira and Devisees : 
 
 Actions by and against, 371. 
 HighilT-aya and Bridges : 
 
 Dedication ; private road, 871 ; discontin- 
 uance ; ascertaining ; laying out, 372 ; 
 
GENERAL INDEX. 
 
 915 
 
 damages ; notice to open ; encroach, 
 ments, 372, 373 ; excavations ; bridges ; 
 liability for non-repair ; law of road, 374 ; 
 repair ; drainage, 375. 
 
 Homicide : 
 
 Degrees of, 218. 
 
 Husband and wife : 
 
 Rights and liabilities of husband, 375, 876 ; 
 survivorship ; administration ; contracts 
 between, 876, 877; wife's separate estate, 
 377, 878 ; dealings with and liability of, 
 878-880 ; actions by and against, 380- 
 
 I. 
 
 Idiots and Lunatics : 
 
 Control of court over, 382; committee; 
 liability for necessaries ; costs, 388. 
 Imprisonment for debt : 
 
 Discharge from, 393. 
 Indemnity : " 
 
 Bonds of, 106. 
 Indians : 
 
 Reservation, 383. 
 Indictment : 
 
 Form, etc, 214, etc. 
 Indorsement : 
 
 Effect of, 93. 
 Infants: 
 
 Custody; contracts; ratification, 383; liability 
 for torts ; laches of ; alienation of land, 
 384 ; guardians for, 367 ; ad litem, 570. 
 Inhabitant : 
 
 Domicil, 259 ; residence, 700. 
 Inheritance : 
 
 Descent, 257 ; post testamentary child, 738. 
 Injunction : 
 
 General principles, 884, 385 ; in what cases 
 may be granted, 885-388; when will 
 not be granted, 889-393 : practice as to, 
 621-623. 
 Innkeeper : 
 
 Liability to guest ; safe provided, 893, 82. 
 Inquest : 
 
 Practice as to, 605. 
 Insolvent debtors : 
 
 Discharge from imprisonment, 898, 394. 
 Insolvent Corporation : 
 
 Transfer by, 394. 
 Insurance Companies : 
 
 Premium notes ; agency ; assessment, 394 ; 
 
 action on premium notes ; securities ; 
 reinsurance, 395. 
 Insurance, Fire : 
 
 Parol contract, 395; procured by agent! 
 cancellation ; negligence ; reinsurance ; 
 insurable interest, what is, 396; con- 
 struction of policy, 397-401 ; represen. 
 tations by assured, 401-403 ; assignment 
 of policy ; loss and proceedings thereon, 
 403, 404. 
 Insurance, Life and Accident : 
 
 Assured ; assignment ; contract, 404 ; con- 
 struction of policy, 405, 406 ; effect of 
 war, 406; concealment; fa'se state- 
 ments, 407, 408 ; payment prevented ; 
 proof of loss ; waiver of defects ; of 
 conditions ; of forfeiture, 408, 409 ; ac- 
 cident insurance, 409, 410. 
 Insurance, Marine : 
 
 Insurable interest ; the contract, 410 ; waiver ! 
 warranty ; deviation, 411 ; loss ; action ; 
 barratry, 412; valuation ; surrender, 413. 
 Interest : 
 
 Wlien recoverable ; extinguished with debt, 
 413 ; as damages, 233. 
 Internal revenue: 
 
 Forfeiture, 414 ; seizure for non-production 
 of receipt, 655. 
 Interpleader : 
 
 Action of, 414. 
 Interrogatories : 
 
 Answering, 256, 257. 
 Intestacy : 
 
 Administration of estates, 341-345. 
 Intoxicating liquors : 
 Laws as to sale of, 334. 
 
 Jail Liberties : 
 
 "Wlio entitled to, 414. 
 Joint Liability : 
 
 On contract ; for tort, 414. 
 Joint stock companies : 
 
 Individual liability, 414, 415. 
 Joint ownership : 
 
 Tenant in common, 705. 
 
 J. 
 
 Judges : 
 
 Disqualification of, 415. 
 Judgment : 
 
 By confession ; foreign ; validity, 415 ; lien ; 
 priority ; satisfaction, 416 ; practice as 
 to, 606-611. 
 Judicial notice : 
 As evidence, 281. 
 
916 
 
 GENERAL INDEX. 
 
 Judicial Sale : 
 
 Perisliable property ; completing purchase, 
 416 ; liens ; deed ; setting aside, 417 ; 
 practice as to, 337-340. 
 Jurisdiction : 
 
 How acquired, 417 ; of extradited person > 
 of particular courts ; when exhausted ; 
 want of jurisdiction, 418; of State 
 courts, 419, 420 ; of United States 
 courts, 421. 
 
 Juror : 
 
 Who is, 421 ; challenge of, 217, 218, 578. 
 
 Justice of the peace : 
 
 Who is ; disqualification, 421. 
 Justice's court. 
 
 Jurisdiction and powers ; process, 422, 423 ; 
 pleadings ; practice, 423, 424; appeals 
 from, 65-67. 
 
 L. 
 
 Laches : 
 
 Effect of, 95, 101, 384, 424, 506. 
 Lading, bill of : 
 
 Who bound by, etc., 90; delivery of, 661. 
 Landlord and tenant : 
 
 Tenancy; construction of lease, 425, 426; 
 covenants, 427, 428; forfeiture; waiver, 
 428 ; landlord's right to repair ; assign- 
 ment of lease ; emblements ; fixtures, 
 429 ; termination of tenancy ; action 
 for rent ; for taxes ; for use and occu- 
 pation, 430 ; defenses, 481-432 ; miscel- 
 laneous rights and liabilities, 432-434. 
 Legacy : 
 
 Construction ; validity ; when vests ; action 
 for, 434, 740-753. 
 Letter of credit : 
 
 Construction of, 434. 
 Levy : 
 
 Of execution 337, 338 ; of attachment, 618, 
 619- 
 Lex loci : 
 
 As to contracts, 162, 436 ; rights.of married 
 women, 435 ; as to wills, 742. 
 Libel: 
 
 What actionable ; what privileged, 435 ; 
 action for ; pleadings, 436 ; evidence ; 
 damages, 437. 
 
 License : 
 
 To sell liquor, 334. 
 Lien : 
 
 In what cases exist ; covenant for ; dis- 
 charge ; priority ; waiver, 437 ; of flie- 
 clianics, 458-463. 
 Life estate: 
 
 Liability of life tenant ; surrender, 705. 
 Life insurance : 
 
 See Insurance life, 404. 
 Limitation of actions : 
 
 General principles , particular actions, 438- 
 441 ; renewal of right of action, 441- 
 442. 
 Lis pendens : 
 
 To what applies ; who bound, 442 ; in eject- 
 ment, 268 ; in foreclosure, 477 ; filing 
 notice of, 574 ; effect of, 620. 
 Literary property : 
 
 Protection of, 183, 887. 
 
 Loan commissioners : 
 Sales by, 442. 
 
 Lockport : 
 
 Action against ; cross walks ; assessments, 
 443. 
 Lottery : 
 
 What is, 443. 
 
 M. 
 
 Maker: 
 
 Of biU or note, Uability of, 91-102. 
 Malice : 
 
 What is, 443 ; proof of, 224, 807. 
 Malicious prosecution : 
 
 When action lies, 444. 
 Mandamus : 
 
 When lies, 444-449 ; practice as. to, 449, 450. 
 Manufacturing corporations : 
 
 See Corporations, 183, etc. 
 Marine court: 
 
 Attendants; jurisdiction, 450; practice in, 
 451. 
 
 Marine insurance : 
 
 See Insurance, marine, 410, etc. 
 Marriage and divorce : 
 
 Marriage, validity of, 451, 452 ; divorce, - 
 validity of ; annulling marriage ; main- 
 tenance ; custody of children ; setting 
 aside, 452 ; alimony and suit money, 
 453, 454. 
 Married woman: 
 
 See Husband and wife, 376, etc. 
 Master and servant : 
 
 The relation; rights of parties, 454, 455; 
 
GENERAL INDEX. 
 
 917 
 
 liability of master to servants and 
 others, 455-457. 
 Mazims : 
 
 Application of, 457. 
 Mechanic's lien : 
 
 For what given ; on what ; notice of, 458, 
 469 ; termination ; continuance, 459 ; 
 payment ; priority ; who may acquire, 
 460 ; discliarge ; enforcement, 461 ; 
 practice, 461-463. 
 Memorandum : 
 
 As evidence, 293, 294; under statute of 
 frauds, 361, 364. 
 Merger ; 
 
 When occurs, 463. 
 Militia and military law : 
 
 Court martial, 463. 
 Mills: 
 
 Rights of owners, 736. 
 Minor: 
 
 See Infants, 383. 
 
 Misdemeanor : 
 
 "What is, 211, etc. 
 
 Misjoinder : 
 
 How taken advantage of, 459, 580. 
 Mistake : 
 
 Money paid under, 467; ground for new trial, 
 604, 605. 
 Mobs, injuries by : 
 
 Liability of county for, 463. 
 Mohawk river : 
 
 Public riglits in, 464. 
 Money : 
 
 Current ; sterling, 464. 
 
 Money had and received : 
 
 When action will lie, 464, 465. 
 Money pEiid : 
 
 When action will lie, 465-468. 
 Mortgage of chattels ; 
 
 See Chattel mortgage, 132-185. 
 Mortgage of real estate : 
 
 What is ; validity, 469, 470 ; construction, 
 . 470 ; rights of parties, 471 ; assign- 
 ments, 471, 472; recording; priority, 
 472, 478 ; discharge, 473, 474 ; redemp- 
 tion, 474, 
 
 Statviory foreclosure of, 474-476. 
 
 Foreclosure hy action ; in what county ; par- 
 ties, 476 ; lis pendens ; offer of judg- 
 ment; defenses, 477; trial; stay; re- 
 ceiver ; judgment, 477, 478 ; direction as 
 to sale ; deficiency ; liens ; bankruptcy 
 proceedings ; irregularities, 479 ; surplus 
 moneys ; sale, what passes, 480 ; relief 
 against sale ; setting aside, 480-482 ; 
 writ of assistance, 482. 
 Motions : 
 
 For new trial, 506 ; to correct pleadings, 
 560; for discovery; examination of 
 party, 672 ; for change of place of trial, 
 673, 674; for substitution, 575; for 
 postponement, 576 ; for non-suit, 579 ; 
 for amendment, 594 ; to set aside ver- 
 dict, 698 ; to set aside defaiUt, 605 ; in 
 general, 624. 
 Municipal corporations: 
 
 In general ; contracts, 482 ; ordinances ; 
 powers, 483 ; streets ; liabilities, 484^ 
 486 • assessments, 486, 487. 
 
 N. 
 
 National banks: 
 
 Business of, 85 ; taxation of shares, 698. 
 Navigable streams: 
 
 What are ; public and private rights in, 488. 
 Necessaries : 
 
 Liability of husband for, 376 ; of lunatic's 
 estate, 883. 
 Ne exeat ; 
 
 Writ not abolished, 488. 
 Negligence : 
 
 What is, and when ground for action, 488- 
 495 : defenses ; contributory negligence, 
 495-501 ; exemption by contract ; ac- 
 cident ; trespass ; want of care, 501 ; 
 evidence : non-suit, 501 ; question for 
 jury, 602, 590. 
 Negotiable Paper : 
 
 Bills of exchange, 92 ; bonds, 107. 
 New promise : 
 
 Taking out of statute of limitations, 441. 
 
 New trial : 
 
 Grounds for, 502-505 ; practice as to, 506. 
 
 New York City and County : 
 
 In general ; officers and their powers and 
 salaries, 507-509 ; contracts ; finances, 
 509-612 ; lands under water ; ferries ; 
 piers ; pilotage , 612, 618 ; streets, 513, 
 514 ; parks ; sewers, 514, 516 ; local 
 assessments, 615-520 ; liabilities of city, 
 520-522. 
 New York Common Pleas : 
 
 Jurisdiction, etc. 206, 206. 
 Non Compos Mentis : 
 
 Contracts by lunatic, 159; testamentary 
 
 capacity, 737, 739. 
 Non-Imprisonment Act : 
 
 To what applies, 622. 
 Nonsuit : 
 
 When proper, 679, 580. 
 
918 
 
 GENERAL INDEX. 
 
 Notary : 
 
 Liability of, 523. 
 Notice : 
 
 By deed ; mortgage ; possession ; agency ; 
 to attorney ; publication, 623. 
 
 Nuisance : 
 
 "What is, 523, 524 ; continuance, abatement ; 
 action for damages, 526. 
 
 0. 
 
 Objections : 
 
 To evidence, 582 ; to charge, 597. 
 Offer of judgment : 
 
 In foreclosure, 477 ; in general, 674 ; effect of 
 refusal of, 198. 
 0£Sce and Officer : 
 
 Who is an officer ; d^ facto officer ; 525, 526 ; 
 appointment ; holding over ; failure to 
 qualify; incompatibility; compensation, 
 626 ; personal liability ; suit by, 527. 
 
 Opinions : 
 
 As evidence, 324-326. 
 
 Orders : 
 
 In general, 624. 
 Overseer of highTirays : 
 
 Duties of, 376. 
 Oyer and Terminer : 
 
 Organization; jurisdiction; powers of judge, 
 628. 
 
 P. 
 
 Parent and Child : 
 
 Custody ; rights and liabilities of parent, 628. 
 Particulars, Bill of : 
 
 When will be ordered, 571, 572. 
 Parties to actions : 
 
 Who are necessary, or proper parties, 18-28, 
 629. 
 Partition : 
 
 Action for ; practice in, 529-632 ; decree ; 
 sale ; relief from purchase, 632 ; fees of 
 commissioners, 533. 
 Partnership : 
 
 What constitutes, 533 ; duties and powers of 
 partners, 535, 536 ; ratification ; sale ; 
 liability for fraud ; of special partner 
 536 ; dissolution, and subsequent rights 
 and liabilities, 537, 538 ; adjustment of 
 concerns, 538, 539. 
 Party Wall : 
 
 Contribution; grant ; verbal agreement, 539. 
 Passenger: 
 
 Duty and liability of carrier to, 124-128. 
 Patent : 
 
 Property in, 540; jurisdiction of patent cases, 
 419. 
 Payment : 
 
 By check ; draft ; note ; book charge, 540 ; 
 in what money ; to whom ; by third 
 person ; of principal in full ; part pay- 
 ment, 541 ; application of payments, 
 614, 642 ; overpayment ; recovery back, 
 542. 
 Paying into court : 
 
 On interpleading, 672; on offer of judgment, 
 574. 
 Penal Action : 
 
 What is, and when can be maintained, 542, 
 543. 
 
 Physician and Surgeon : 
 
 Liability of, 643 ; privileged communication 
 to, 767. 
 Pilots : 
 
 State laws in force ; when applicable, 643 ; 
 in port of New York, 513. 
 Plcink Roads : 
 
 Title to lands, 543 ; order to repair, 544. 
 Pleading : 
 
 The complaint ; in general, 544, 545 ; joinder 
 of causes of action, 546-547 ; complaints 
 in particular actions, 547-651. 
 The answer ; general principles, 551 ; general 
 and specific denial ; what facts prova- 
 ble under, 552 ; counterclaim, 553 ; must 
 be pleaded ; set off ; what not proper, 
 554^655 ; particular defenses, 555-557 ; 
 sham and frivolous answers, 657-659. 
 The reply ; 559. 
 
 The demurrer ; admission by ; what demurra- 
 ble, 559, 560. 
 Motions to correct pleadings ; to compel to 
 elect ; to make definite, 660 ; to state 
 separately ; to strike out, 561. 
 Supplemental pleadings; in general, 561 ; what 
 
 may be so pleaded, 662. 
 Construction of pleadings ; in general, 663 ; in 
 
 particular cases, 664. 
 Amendments; when and what-allowable, 564, 
 665 ; variance, what is ; when immate- 
 rial, 565 ; when material ; defects when 
 cured, 566. 
 Fledge : 
 
 What is ; rights of parties, 667 ; redemp- 
 tion, 668. 
 Police : 
 
 See New Ymk city, 507, 608. 
 
GENERAL INDEX. 
 
 919 
 
 Poor : 
 
 Superintendents of, 694. 
 Possession : 
 
 Adverse, 29 ; change of, 362, 659-662 ; as 
 notice, 102-105, 523. 
 Posthumous children : 
 
 Rights of, 738. 
 Post nuptial agreement: 
 
 Validity of, 376. 
 Po'wera : 
 
 Construction of ; majority may act ; spe- 
 cial ; power in trust, 568 ; conferred by 
 wUl, 746, 747, 750. 
 Practice : ' 
 
 The summons, form ; service, 569 ; affidavits 
 for order of publication ; of mailing ; 
 time of publication ; service out of 
 state; fraudulent and irregular servicej 
 570. 
 
 Appearance and preliminary proceedings, guar- 
 dian ad litem, 570 ; by husband for 
 wife ; by stranger ; unauthorized ; 
 withdrawal of; stay ; bill of particulars, 
 571 ; interpleader ; discovery, 572 ; ex- 
 amination of party before issue ; secu- 
 rity for costs ; changing place of trial, 
 572, 573; motion for; effect of order; 
 offer of judgment ; extension of time 
 to answer ; to appear, 574. 
 
 Service of pleadings ; cross bill ; lis pendens, 
 574 ; substitution of parties ; of attor- 
 neys, 575. 
 
 Trial in general ; proceedings between issue 
 and trial ; notice ; calendar ; election ; 
 severance ; staj' ; postponement ; ex- 
 amination of party, 576, 577 ; discon- 
 tinuance, 577 ; proceedings on trial ; 
 right to jury trial ; challenges ; tales- 
 men ; opening and closing, 578 ; non- 
 suit, motion and grounds for, 579-581 ; 
 introduction of evidence, 581; order, 
 offer of, and objections to evidence, 
 582 ; examination of witnesses, 583, 
 584 ; refreshing memory ; impeaching 
 witness ; re-opening ; striking out, 585; 
 questions for court, 585, 586 ; questions 
 for jury, 586-593 ; summing up, 593 ; 
 amendments at trial ; charge to jury, 
 694-596 ; directing verdict ; reserving 
 for consideration, 596 ; exceptions, 596, 
 597 ; hearing at general term, 597 ; 
 how reviewed, 698 ; the verdict ; set- 
 ting aside verdict, 598 ; trial by court 
 without jury ; feigned issues ; review of 
 decision, 599 ; reference ; to take proofs ; 
 for trial ; what cases .referable, 600, 
 601 ; notice of trial ; the hearing ; 
 amendments, 602 ; the report ; excep- 
 tions, 603 ; terminating reference ; set- 
 ting aside report, 604 ; setting aside 
 judgment ; inquests or defaults ; open- 
 
 ing defaults, 605, 606 ; bill of excep- 
 tions ; filing ; hearing on, 606. 
 
 Judgment, entry of, 606 ; notice of entry ; 
 by confession ; on demurrer ; form and 
 effect, 607, 608 ; docketing ; roU ; lien, 
 608 ;- correcting ; modifying ; vacating, 
 608-610 ; satisfaction and discharge, 
 610, 611 ; vaUdity, etc., 415, 416.' 
 
 Execution ; issuing ; setting aside, 611 ; 
 form ; levy and sale, 335-340. 
 
 Supplementary proceedings, 612 ; receiver in ; 
 title to property ; action by, 613. 
 
 Provisional remedies. Arrest in what cases 
 proper, 613, 614 ; affidavit for ; service ; 
 bail ; reduction ; . exoneration, 615 ; 
 discharge ; vacating order, 616, 617. 
 
 Attachment ; jurisdiction ; affidavit for, 617, 
 618 ; when and in what cases allowed, 
 618 ; levy of ; lien, 619 ; effect of lis ■ 
 pendens) discharge ; restoration ; action 
 by sheriff ; on undertaking, 620. 
 
 Claim and delivery, or replevin, 655. 
 
 Injunction ; general principles ; in what 
 cases proper, 384-393 ; preliminary, 
 621 ; after judgment ; security ; con- 
 tinuance, 622 ; damages on dissolution, 
 622, 623. 
 
 Receiver, appointment, 623 ; property vested 
 in ; compensation, 624, 647-649. 
 
 Motions and orders ; who may move ; when 
 and where ; where heard, 624 ; notice ; 
 particular motions ; effect of vacating, 
 or reversal ; questions ; reopening, 625 ; 
 renewal ; re-argument ; reference ; res- 
 titution; stay; compulsory affidavits, 
 626, 627. 
 Prescription : 
 
 In general ; right by, 627 ; to easement, 262, 
 263 ; to land by adverse possession, 30. 
 Presentment : 
 
 Of bills, 96. 
 Presumption : 
 
 Evidence in civil actions, 281-286 ; in crimii- 
 nal cases, 220, 221. 
 Principal and agent : 
 
 Agency, what is ; how terminated, 627 ; au- 
 thority, when principal bound, 628-632 ; 
 ratification, 632 ; agent's liability to 
 third parties, 633 ; duty and liability to 
 principal, 633-635. 
 Principal and surety : • 
 
 Who is surety ; liabihty of ; rights of, 635, 
 • 636 ; how discharged, 636, 637. 
 Private property : 
 
 Bight to take for public use ; compensation, 
 149. 
 Private statutes : 
 
 Constitutionality, 142, 143. 
 Process : 
 
 In justice's courts, 422 ; in marine court, 
 451 ; in courts of record, 569, 613, 617. 
 
920 
 
 GENNERAL INDEX. 
 
 Production of papers : 
 
 Discovery, 572. 
 Prohibition, w^rit of : 
 
 When allowed, 637; office and effect of, 
 638. 
 
 Protest : 
 
 Of bills, 96. 
 
 Pulteney estate : 
 
 Perpetuation of testimony as to, ( 
 
 Q. 
 
 Quo v^arranto : 
 
 When action lies ; parties ; practice, 638, 639. 
 
 E. 
 
 Railroad companies: 
 
 In general, payment for stock ; duties and 
 liabilities of directors ; liability of stock- 
 holders, 639, 640. 
 Acquisition of land, 640-643 ; proceedings for 
 
 change of route, 643. 
 Powers, duties and liabilities ; contracts, 643 ; 
 crossing highways; fare; farm cross- 
 ings ; fences ; lease, 644 ; liabilities, 
 644-646 ; powers and rights, 646, 647. 
 Ratification : 
 
 Of acts of agent, 632. 
 Real action : 
 
 Ejectment, 265-268 ; determination of 
 claims, 257. 
 Real property : 
 
 Conyeyance of, 248-250; lease of, 425-434 ; 
 mortgage of, 469-474;" specific per- 
 formance of contracts for, 677-682 ; 
 sale of, rights of vendor and purchaser, 
 726-729. 
 Receipts : 
 
 In full, effect of, 647 ; may be explained, 318. 
 Receiver : 
 
 Appointment ; control of court over, 647, 
 648 ; duties and powers ;^ accounting ; 
 action by ; property vested in, 648 ; 
 vacating receivership, 648, 649 ; liabil- 
 ity ; compensation, 649 ; practice as to, 
 623. 
 Recognizance : 
 
 Mistake in, 649. 
 Record : 
 
 Of deeds, 249 ; as evidence, 286 ; as notice, 
 
 523. 
 
 « 
 
 Recoupment : 
 
 When allowable, 649. 
 Redemption : 
 
 From execution sale, 340 ; from mortgage, 
 474. 
 Reference, Referee : 
 
 Trial by, 600-604. 
 Reforming instruments : 
 
 Contracts, 171 ; deed ; insurance policy, 650. 
 Rehearing : 
 
 On appeals, 48, 60 ; of motions, 625, 626. 
 Release : 
 
 By assignor; by guardian; parol; of joint 
 debtor or wrong doer ; cancellation, 
 650, 651. 
 Relevancy : 
 
 Of evidence, 301, etc. 
 Religious Corporations : 
 
 Corporate capacity ; actions ; powers ; pas- 
 torate, 651 ; rights of members ; of 
 pew owners ; sale of property, 652 ; title 
 to property, 652, 653. 
 Remainder and Reversion : 
 
 Vested remainder, 752 ; reversion, 656. 
 Removal of causes to TTnited States 
 Courts : 
 Constitutionality ; when authorized, 653 ; 
 appearance ; citizenship of parties ; on 
 whose application ; the petition ; when 
 effected, 654', 655. 
 Replevin : 
 
 When lies ; practice in, 655. 
 Res adjudicata : 
 
 When conclusive ; upon whom, 350-355. 
 Rescission: 
 
 Of contracts, 172 ; of sales, 663, 728, 729. 
 Residence : 
 
 Domicil, 259 ; residence for purposes of tax- 
 ation, 700. 
 Res Gestae : 
 
 Evidence, 316. 
 Restraint of trade : 
 
 Contracts when invalid, 179. 
 Revenue Law . 
 
 Seizure under, 655 ; sale of perishable pro- 
 perty, 416. 
 Revenue Stamps : 
 
 Validity of law ; affixing in court ; omis- 
 sion of, 682. 
 Eeversion : 
 
 Railroad discontinued, 656. 
 Reii7ard : 
 
 When earned ; construction of offer, 656. 
 Riparian owners : 
 
 Boundaries ; conveyances : rights in, 656. 
 
GENERAL INDEX. 
 
 921 
 
 Rivers : 
 
 Navigable streams ; rights in, 488. 
 Roads : 
 
 Highways, 371-375 ; streets, 484 ; plank 
 roads, 543 ; railroads, 639. 
 
 Rochester city : 
 
 Assessments ; river obstructions ; sewers, 
 656, 657. 
 
 s. 
 
 Sale of chattels : 
 
 What is ; construction of contract, 658 ; 
 validity; conditional; as affected by 
 fraud ; by statute of frauds, 659, 660 • 
 who can sell ; ratification, 660, 661 ; 
 when title passes, delivery, 661, 662 ; ac- 
 ceptance, 663 ; recission, 663 ; stoppage 
 in transitu, 664 ; warranty, in general ; 
 express, 664 ; implied ; remedy for 
 breach, 665, 666 ; rights of parties, 666- 
 669. 
 Saratoga : 
 
 Liability for negligence ; Union avenue, 669. 
 
 Satisfaction : 
 
 Of mortgage, 473 ; of judgment, 610. 
 Savings Banks : 
 Powers of, 85. 
 Scire Facias : \ 
 
 Proceedings under code, 669. 
 Schools ; School Districts : 
 
 Common Schools, 139 ; district tax, 702. 
 Seamen : 
 
 Actions by, 675, 676. 
 Secretary of Navy : 
 
 Agencies, 670. 
 Security for Costs : 
 
 When required, 196, 572. 
 Seduction : 
 
 The offence, 214 ; action for, 670. 
 Separate Maintenance -. 
 
 Decree of, 452 ; alimony, 458. 
 Servant : 
 
 Employe, who is, 269 ; relations with mas- 
 ter, 454-456; liability for injuries to, 
 491. 
 Sessions, Court of : 
 
 Jurisdiction, etc., 677. 
 Set off: 
 
 Against whom; what may be set oft ; waiv- 
 er of, 670, 671 ; pleading, 554. 
 Settlement : 
 
 When binding ; avoidance for mistake, 671. 
 Sewers : 
 
 Liability of municipal corporations for dam- 
 ages from, 485. 
 Sheriff : 
 
 Duties ; liabilities, 672 ; actions by ; fees, 
 673. 
 Ships and Seamen : 
 
 Salvage ; demurrage ; lien for repairs, 678- 
 674 ; for supplies ; liability for cargo, 
 
 674r-675; master; owner; pilot; ship's 
 husband ; seamen, actions by, 675-676. 
 Slander : 
 
 What words actionable-; evidence, 676. 
 Special Sessions, Court of : 
 
 Jurisdiction ; trial by one justice ; commit- 
 ment ; appeal, 677. 
 Specific Performance : 
 
 In general, 677 ; what contracts will be en- 
 forced, 678^679 ; parties ; pleadings, 
 679 ; grounds for denial of relief, 679- 
 681 ; compensation ; damages, 681-682. 
 Spirituous liquors: 
 
 Laws relative to sale, 334. 
 Splitting demands : 
 
 Not allowable, 15-16. 
 Stamps : 
 
 Validity of revenue act ; affixing in court ; 
 when stamping sufficient ; unintentional 
 .omission, 682. 
 Stare decisis : 
 
 Application of doctrine, 350-355. 
 Statutes : . 
 
 Local and public, defined, 682. 
 Repeal of, what operates as, 682 ; by impli- 
 cation, 683; special by general laws, 
 683-684; effect of, 684. 
 Construction, general rules, 684-685 ; amend- 
 atory ; directory ; mandatory ; penal, 
 686 ; prohibitory ; prospective ; retro- 
 spective ; remedial, 687 ; particular 
 terms; particular statutes, 688-690. 
 Stipulations : 
 
 Construction of, 690. 
 Stocks : 
 
 Not negotiable ; title to, 690 ; broker, rights 
 in respect to, 108-111; pledge of, 567- 
 568. 
 Stockholders : . 
 
 Liability of 189-190. 
 Stoppage in transitu : 
 
 Bight of, as to bills of exchange, 93; as to 
 property sold, 664. 
 Streams : 
 
 Navigable, rights in, 488. 
 Streets : 
 
 In municipal corporations, 484. 
 Striking out evidence : 
 
 Practice as to, 585. 
 Striking out pleadings : 
 As sham or frivolous, 561. 
 
922 
 
 GENERAL INDEX. 
 
 Submission of controversy : 
 
 The submission; matters considered ; relief 
 granted, 691. 
 Subrogation : 
 
 Who entitled to, 691. 
 S ubscf iption : 
 
 Action on, 15 ; when binding, 161. 
 Subscribing ■witness : 
 
 Proof of instrument by, 295 ; of will, 737- 
 738. 
 Substitution : 
 
 Of parties ; of attorneys, 575. 
 Summary proceedings to recover posses- 
 sion of land : 
 
 Who can maintain ; practice, 692 ; defense; 
 adjournment; review; enjoining; re- 
 demption of unexpired term, 693. 
 Sunday : 
 
 Construction of statute ; instructing j ury ; 
 society meetings ; traveling, 693 ; ver- 
 dict and judgment in justice's court, 
 424. 
 Superintendent of insurance : 
 
 Compensation, 693. 
 Superintendents of poor : 
 
 Supervisor ineligible; majority may act, 694. 
 
 Superior court : 
 
 . Jurisdiction ; removal of causes to Supreme 
 Courts ; perpetuating testimony ; the 
 crier, 694. 
 Supervisors : 
 
 Actions ; auditing claims ; compromise ; 
 receipt of money ; fees, 695. 
 Supplementary Proceedings : 
 
 Practice in 612, 613. 
 Supreme court : 
 
 Jurisdiction ; terms by whom held ; removal 
 of causes to, 695- 
 Surety : 
 
 Rights and liabilities, 635-637. 
 Surprise ; 
 
 As ground for new trial, 505. 
 Surrender : 
 
 Of lease, 430 ; of life estate, 705. 
 Surrogate : 
 
 Disqualification; jurisdiction; powers; lia- 
 bility ; probate of wills ; granting letters 
 696 ; removal of executor ; revocation 
 of letters ; accounting ; distribution, 
 697. 
 Syracuse : 
 
 Assessment ; ordinances, 698. 
 
 T. 
 
 Taxes: 
 
 Assessment, what liable to, 698 ; exemptions ; 
 valuation, 699 ; property omitted ; where 
 to' be assessed ; to whom ; when, 700 ' 
 verification of roll; return ; assessment 
 when conclusive ; correction of roll, 701 ; 
 equalization ; personal liability of asses- 
 sors; validity of tax, 702. 
 Collection : the roll ; the warrant ; duty and 
 liability of collector ; what liable to sale ; 
 refunding and recovery biick, 702, 703. 
 Sale of land, tax deed, 704. 
 Taxing Costs : 
 
 By clerk of court, 199. 
 Telegraph Companies : 
 
 Duty of connecting lines ; conditions ; regu- 
 lations ; liability of company, 704, 705. 
 Tenants in Common : 
 
 Who are ; rights and liabilities ; notice ; ac- 
 counting; grant by one, 705. 
 Tenant for Life: 
 
 Liability for assessment ; surrender, 705. ' 
 Tenant at Will oi Sufferance : 
 
 Servant; notice to quit, 706. 
 Tender : 
 
 Before action 18, 706 ; when valid ; dis- 
 charges lien ; when excused, 706 ; when 
 waived, 707. 
 Time: 
 
 Computation of, 707 ; when material in con- 
 tract, 727. 
 
 Title to Chattels : 
 
 By gift, 365 ; by purchase, 661 ; by manu. 
 facture ; by finding ; by natural in- 
 crease, 707 ; by will, 740, etc. 
 Title to Land : 
 
 By adverse possession, 30 ; by deed, 247 ; 
 by estoppel, 248 ; by prescription, 627 ; 
 by will, 740, etc. 
 Tolls : 
 
 Penalty for evading, 707. 
 Torts, actions for : 
 
 In general, 5-15 ; assault and battery, 71 ; 
 conversion, 180; false imprisonment, 
 347 ; forcible entry, etc., 349 ; libel, 435 ; 
 negligence, 488 ; nuisance, 525 ; reple- 
 vin, 655; seduction, 670 ; slander, 676; 
 trespass, 713. 
 To^wns : 
 
 Auditing accounts ; collector ; bounty, 707 ; 
 bonds ; action on ; bridges ; joint lia- 
 bility, 708 ; bonding in aid of railroads, 
 708-711. 
 Trademarks : 
 
 What protected as, 711, 712 ; who protected ; 
 infringement, 712; unintentional; use 
 not exclusive ; registration, 713. 
 Transcript : 
 
 As evidence, 287. 
 Treasury Notes : 
 Negotiability, 713. 
 
GENERAL INDEX. 
 
 923 
 
 Trees : 
 
 Shade trees, 713. 
 Trespass : 
 
 When action lies, 10, 713 ; wilful ; joint 
 and several ; who can sue ; damages, 
 714. 
 Trial : 
 
 By jury, 576; by court, 699; by referee, 
 600. 
 Trover : 
 
 Conversion, 6, 180-183. 
 
 Troy, City of: 
 
 Assessments ; fire limits ; removal of police 
 officer, 714. 
 Trusts and Trustees : 
 
 Implied or resulting, 714-716 ; express, 716, 
 717 ; appointment and removal of trus- 
 tees, 718 ; riglits of cestui que trust, 718, 
 719; duties, powers and liabilities of 
 trustees, 719-721 ; accounting ; compen- 
 sation, 721. 
 Turnpike Company : 
 Sale by, 721. 
 
 TJ. 
 
 Undertaking : 
 
 When absolute ; consideration, 721 ; valid- 
 ity ; liability of sureties ; damages, 
 722. 
 United States Courts : 
 
 Jurisdiction, 28, 421. 
 Undue influence : 
 
 Effect upon contract, 174; upon v/ill, 740; 
 settmg aside referee's report for, 604. 
 Usage : 
 
 When binding 231, 722 ; evidence of, 322, 
 323. 
 
 Use and Occupation : 
 
 Action for, 430. 
 Uses and Trusts : 
 
 See Trust and Trustees, 7147-718. 
 Usury : 
 
 What contracts usurious, 722, 723 ; what not 
 usurious, 723-724 ; by what law gov- 
 erned ; who may impeach for, 724, 726 ; 
 action to recover back ; relief against, 
 725 ; revival of debt, 726. 
 Utica : 
 
 Assessments ; ordinances, 726. 
 
 V. 
 
 Variance : 
 
 When material, 566, 594. 
 Vendor and Purchaser of lands : 
 
 The contract; covenants, 726; construction; 
 time of essence, 727 ; rights of parties, 
 727-729 ; tender ; lien of vendor, 729, 
 Venue : 
 
 Change of, 572, 573. 
 
 Verdict : 
 
 Construction ; setting aside, 598. 
 Verification : 
 
 Of pleading, 552. 
 Vessel : 
 
 See Ships and Seamen, 673. 
 Villages : 
 
 See Municipal Corporations, 482. 
 
 w. 
 
 Wager : 
 
 Recovery back, 730. . 
 
 Waiver : 
 
 What operates as, 730-735. 
 War : 
 
 Effect on commercial intercourse ; on con- 
 tracts, 735. 
 Warehouseman : 
 
 Duty and liability, 735 , receipt of, 736. 
 Warranty : 
 
 On sale, 664-666. 
 Waste : 
 
 Who liable ; action for, 736. 
 Water course : 
 
 Wliat is ; detention ; diversion ; drainage ; 
 obstructions ; confining to cliannel, 736 ; 
 
 rights as to flowing spring; title to 
 waters and bed, 737. 
 
 Widow : 
 
 Dower of, 260 ; allowance for sustenance, 
 697 ; provision by will in lieu of dower, 
 745. 
 
 Will: 
 
 What is ; who may make ; attestation ; pub- 
 lication, 737 ; seal ; signature ; spaces ; 
 effect of birth of post-testamentary 
 child ; revocation ; probate and its 
 effect ; what entitled to ; who may 
 contest, 738 ; proof of execution, of age 
 of testator ; of testamentary capacity, 
 739, 740 ; undue influence : revocation 
 of probate ; appeal, 740 
 
924 
 
 GENERAL INDEX. 
 
 Validity, cmstrucHon and effect ; contingent 
 bequests, 740; devise to charitable 
 uses ; to foreign corporation ; directing 
 accumulation, 741 ; delegating appoint- 
 ment of executor ; devise of land con. 
 tracted to be sold ; law of place ; mis- 
 description of legatee ; suspending ab- 
 solute ownership, etc., 742, 743 ; creat- 
 ing trusts, 743 ; to United States, 744 ; 
 construction in general, 744, 745 ; be- 
 quest in lieu of dower ; of income, 745 ; 
 on conditions ; vested or- contingent, I 
 746 ; in trust, 746, 747 ; equitable con- 1 
 
 version ; legatee intended, 748, 749 ; 
 ■^peculiar provisions, 749, 750 ; property 
 devised : quantum of interest, 750-752 ; 
 vested remainder, 762 ; when devise 
 lapses, 753. 
 
 Suit /or construction, 753, 754. 
 'Witness : 
 
 Examination on commission; perpetuation 
 of testimony, 754 ; competency ; as- 
 signor ; expert ; husband and wife ; 
 prisoner ; wlie^'e one party is deceased, 
 755, 756 ; privilege, 756, 757 ; credibil- 
 ity, 757.