KFhJ 5051 kfnsosz.dim'"""""'""-""^" "iMlSfl Willi's^"'' '=""« Of Appeals 3 1924 017 679 824 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017679824 DIGEST OF THE NEW YORK COM OF APPEALS EEPORTS VOLUMES 126 TO 153 INCLUSIVE WITH A TABLE OF COURT OF APPEALS CASES CITED, DISTINGUISHED, LIMITED AND OVERRULED, TOGETHER WITH CASES RE- PORTED BELOW AND AFFIRMED OR REVERSED BY THE COURT OF APPEALS BY AMASA J PARKER, Jb. ALBANY, N. Y. . VOLUME III NEW YORK AND ALBANY BAlsTES & BROTHERS, LAW PUBLISHERS 1898 COPYBIGHT, 1898, By banks & BROTHERS. DIGEST OF THE NEW YOEK COUET OE APPEALS EEPOETS, VOLUMES 126 TO 153 INCLUSIVE. Abandonment ; See InsuroTice, V. Abatement ; See Pleading, II, IV. Abatement and Revival. The entry of an order of reversal by the General Term in a case argued before the death of the lunatic, but decided after his death, though the order is antedated, does not abate the pro- ceeding. Garter v. BecTmith, 128 N. Y. 312. "Where action commenced by personal service on some defendants, service completed, as to others, after plaintiff's death bypubli- cation. _ _ Reilly v. Hart, 130 N. X. 625. Upon death of a plaintiff, suing as assignee for creditors, his ex- ecutor will not be substituted, unless the papers show that he has been substituted as assignee. Steinhouser v. Mason, 135 IST. Y. 635. Upon the death of the sole plaintiff in an action to determine a claim to real property, the court may substitute the devisee of such lands and direct the continuance of the action by him, under section 757 of the Code. Biggins v. Man/or, etc., of 2V. Y., 136 N. Y. 214. "Where defendant has recovered judgment, which has been vacated and a new trial ordered on the plamtiff's application, such order is proper in protection of the defendant's right to a new trial. Id. Mere lapse of time cannot defeat the application for a continuance of action in the name of the representative of party who has died. _ Mason v. Sanford, 137 N. Y. 497. In equity actions on account of prejudicial laches the court may refuse the reviver within the ten years' limitation. Id. "Where, pending a foreclosure suit, the owner of an undivided in- terest dies, and the heirs or devisees are not brought in, the estate of deceased is not affected. Stephens v. Humvhryes, 141 E". Y. 586. 2141 2142 Abatement and Revival — Accounts and. Accounting. Abatement and Revival — Continued. The Forest Commission has been a continuous body since its creation under the act of 1885 ; actions commenced by it were not abated by the repeal of the act creating the body — viz., by chapter 395 of 1895. People ex rel. Forest Commission v. Campiell, 152 N". Y. 51. An action by the directors of a banking corporation for volun- tary dissolution abates upon the entrv of judgment of the dis- solution. Matter of Murray Hill Bh., 153 N. Y. 199. Absconding Debtor ; See Attachment. Accommodation Paper ; See Bills and Notes. Accord and Satisfaction. Case in which a collection and retention of money by physician made an accord and satisfaction of an unliquidated account, rendered for larger sum than was received from patient. Fuller V. Kemp, 138 N. Y. 231. Debtor and one joint creditor cannot, without the consent of the other creditor, effect an accord and satisfaction which will cut off the right of the latter. Hathaway v. Orient Ins. Co., 124 IST. Y. 409. Where a debtor sends a check for a portion of a disputed claim, accompanied by a receipt for signature stating that the payment is in full, the collection of such check by the creditor, after a refusal by the debtor to pay more, imports an election to be bound by the condition and constitutes an accord and satisfac- tion, although he does not return the receipt, but gives one on account, unless the latter is acquiesced in by the debtor. Nassoiy v. Tomlinson, 148 N. Y. 326. Accounts and Accounting ; See Executors and Administrators / Partmership. A creditor who presents a claim against his debtor for a balance alleged to be due, where the amount of the original indebted- ness is undisputed, should not be turned out of court for not showing the deductions by way of credits, and the complaint of a creditor of a partner, suing the assignee of the firm for an accounting, should not be dismissed. Cheever v. Brown, 128 IST. Y. 670. In the absence of an amendment, neither the referee nor the ap- pellate court can allow, on a partnership accounting, a larger amount to the claimant than he presented. Newhall V. Wyatt, 139 N. Y. 452. Court cannot retain action to enable plaintiff to prove another and different cause of action against one defendant alone. Sherlurne v. Taft, 142 N. Y. 619. Accounts and Accounting — Ademption. • 2143 Accounts and Accounting — Continued. When action for an accounting cannot be maintained against the trustee under a mortgage. Harrison v. Union Trust Co., 144 N. Y. 326. Account Stated. A complaint in an action upon an account stated need not allege the subject-matter of the original debt. Sehuts V. Morette, 146 K Y. 13Y. Where a mistake materially afPecting the result is shown to have occurred, an account stated may be opened so far as to correct such mistake. Conville v. Shook, 144 JST. Y. 686. Accumulations ; See Trusts, IT. Acknowledgment ; See Deeds, III. Acquittal ; See CrimiTial Lorn, V. Action, Right of. An action is not maintainable on a bond given by a deputy sheriff to the sheriff, conditioned to pay to the latter a portion of all fees received, to recover his fees as peace officer. Deyoe v. Woodworth, 144 JST. Y. 448. A married woman may, to protect her inchoate right of dower, maintain an action to cancel of record a deed. purporting to be executed by herself and her husband, on the ground that it is forgery so far as it purports to be executed by her, and is not obliged to wait for admeasurement of dower after his death. Clifford V. Kamjpfe, 147 IST. Y. 383. Such action may be maintained although the name of the wife in the deed is not exactly that of the plaintiff, where the similar- ity is so great as to deceive persons not intimately acquainted with her. Id. An action in aid of an attachment under subdivision 2 of section 655 of the Code cannot be maintained unless the summons in the attachment action has has been served without the state or by publication, and the defendant therein has made default. Whitney v. Dmis, 148 N. Y. 256. An action under section 2653a of the Code, to determine the validity of probate of a will, cannot be maintained by one claiming in hostility to the will. Zewis v. Cook, 150 N. i. 163. A receiver may maintain an action in equity to compel a person to account and deliver funds which the receiver has acquired > title to. Armstrong v. Mclean, 153 N. Y. 490. Ademption ; See legacy. 2144 Adjudication — Adverse Possession. Adjudication ; See Former Adjudication ; Judgment. Administrators ; See Executors mid Administrators. Adulteration. The addition of a foreign and artificial ingredient to a food prod- uct is an adulteration. People y. Oirard, 145 N. T. 105. Advancements. A conveyance of a parcel in fee absolute and of another parcel subject only to a life estate may be shown by parol to have been intended as an advancement. Palmer v. OuZbertson, 143 JST. T. 213. Adverse Possession. What is sufficient evidence to establish title by adverse possession to a strip of land forming part of a wall adjoioing a building. Ba/ron v. Korn, 127 I!f . Y. 224. "Where party has secured title by adverse possession, his subse- quent contract for the purchase of an outstanding claim of title will not estop him from setting up his title already acquired through the adverse possession. Greene v. Cause, 127 K T. 386. May be continued by assignee of one whom landlord recognizes and accepts as tenant at will. LoMdon V. Townshend, 129 IS". Y. 166. The act of a third person building a fence around premises, not interfering with tenant's occupation, and without notice to landlord, does not constitute a break in adverse possession. Id. Acts of ownership are presumed to be done under an existing conveyance. McEoberts v. Bergman, 132 N. Y. 73. Where the owner of land excludes for twenty years the owner of an easement, who acquiesces in the exclusion, the easement is lost by adverse possession. Woodruff v. Paddock, 130 N. Y. 618. This rule applies to an abutting owner's private rights in a street. Id. Specific adverse title is not necessary to constitute adverse pos- session. If there be color of title, a general assertion of owner- ship will suffice. American Bank Note Co. v. N. Y. Elev. R. P. Co., 129 N. Y. 252. Mere provisions in the charter of a railroad corporation for pay- ment of damages does not subordinate the entry of the corpo- ration to the private right. Id. While ignorance does not affect legal rights, it may be taken into account in determining the character of an adverse occupation. Id. Adverse Possession — Agency. 2145 Adverse Possession — Continued. Eights by prescription are measured by the extent of the use. A right of way for one purpose gained by user cannot be turned into a right of way for another purpose. _ Id. The institution of proceedings by a party for condemnation of property held by adverse possession does not destroy a pre- scriptive right fully acquired, but is an admission tending to show the character of the possession. Id. When adverse possession is not sustained. Id. A statement agreed upon that a person and his grantees were in undisturbed possession of the land for tM^enty years and up- wards does not show that the possession was adverse. What is essential to constitute an adverse holding upon a writteA conveyance, under Code Civ. Pro. § 369. Kneller v. Lang, 137 N. Y. 589. Facts sufficient under section 370 of the Code, under which party had established a constructive possession of property and a title by adverse possession. Norihport Real Estate (& iTuprovement Co. v. Hendrickson, 139 N. Y. 440. Use not sufficient to constitute adverse possession of land between high and low water marks. De Lancey v. Piepgras, 138 IST. Y. 26. The fencing in and occupation of lands laid down as a street on a map referred to in the title deeds of the parties in possession, will not be deemed adverse as to the easement of purchasers of lots abutting on such streets. Village of Clean v. Steyner, 135 N". Y. 341. Failure to cultivate, enclose and occupy land, though taxes are paid, destroys right to claim adverse possession. Mission of Immaculate Virgin v. Cronin, 143 JST. Y. 524. Where the timber cut was used elsewhere and no improvements made, constructive possession cannot be claimed. Id. Affidavit. Allegations in affidavits held to be an absolute nullity as an affi- davit of denial. 8im,mons v. Craig, 137 IS". Y. 550. Agency ; See Brolcers ; Factors ; Ilusba/nd and Wife ; Insurance, I ; Ratification. I. Attthokitt. II. Katification. III. Undisclosed Peincipal. IV. Mutual Rights and Liabilities. Y. Agent's Liability to Thied Persons. VI. Peincipal's Liability foe Agent's Acts. 135 2146 Agency, I, II, III, IV. Agency — Continued. I. AUTHORITY. "What proof that an agent having authority to draw checks did so while his principal was dying, is insufficient to show authorization. Matter of James, 146 N. Y. 78. The power of an agent to collect and receive payment of rents ceases apon the principal's death. Farmers' Loam, <& Trust Co. v. WUsoti, 139 N. Y. 284. The fact that the agent was entitled to commissions upon the rents collected, held, not to create such an interest as to take the case out of the rule. Id. An agreement by one partner for the services of the other in a business other than the partnership is not binding. Zeavitt v. Chase, 129 N. Y. 660. An architect acting as agent for both owner and builder may consent to change in plans. Thomas v. Stewart, 132 E". Y. 580. Otherwise if employed merely as architect. Id. II. EATIFICATION. A husband is not personally liable to a proposed lessee, with whom he has been negotiating, for a failure of his wife to exe- cute the lease, where such lessee knew that in so negotiating he was acting only as his wife's adviser and endeavoring to agree upon terms which he could advise her to accept. Baer v. Bonynge, 147 N. Y. 393. The receipt of the proceeds of an unauthorized contract made by an agent, where the principal at the time of such receipt has knowledge, actual or implied, of the facts, operates as a ratifi- cation of such contract. Smith v. Barnard, 148 N. Y. 420. Before a principal can be held to have ratified the unauthorized act of an assumed agent, he must have fuU knowledge of the facts. Trustees, etc., of Easthampton v. Bowmam,, 136 N. Y. 521. "Where the principal accepts the beneflit of agent's contract, it amounts to a ratification. BUven v. Lydecher, 130 1^. Y. 102. III. UNDISCLOSED PRINCIPAL. Parol evidence is admissible to show that the person who made the contract was an agent and not a principal. Brady v. Nolly, 151 N. Y. 258. "Where agents in shipping goods acted without disclosing their agency, the carrier was entitled to contract with them as principals. Robertson v. Nat. Steamship Co., Limited, 139 N. Y. 416. IV. MUTUAL RIGHTS AND LIABILITIES. Moneys remitted by a principal to his agent for the purpose of Agency, IV, V, VI. 2147 Agency — Continued. putting him in funds to meet obligations and liabilities incurred by him in the business are impressed with a trust in favor of the principal, and may be recovered. Roca V. Byrne, 145 N. Y. 182. A mere naked authority in the execution of which the agent has no other interest than that which arises from his employment and right to earn his compensation is revocable at any time Terwilliger v. Ontario, C. c& S. R. R. Co., 149 IST. Y. 86. Eut where such authority is given as security for a claim or for a valid consideration within the law applicable to executory con- tracts, it is irrevocable. Id. A party receiving money from an agent in satisfaction of a personal debt with knowledge of its fiduciary nature is liable to the principal. Gera/rd v. McCormich, 130 N. Y. 261. On breach of contract by agent in refusing to deliver goods, prin- cipal may recover as damages value of goods at time of breach. Morniet V. Mers, 127 K Y. 151. It is no defense to the principal's action against the agents for an accounting, that an action is pending against the agents by the United States government to recover a penalty for over- valuation of goods imported. Id. Nor is the payment of a sum in the defense and settlement of such suit available as a claim for reimbursement. Id. Sums paid counsel retained in such suits in behalf of the principal, and by his specific authority, may be claimed by agent. Id. The power of an agent to create rights by contract for his prin- cipal implies a duty to observe and not defeat them. American Steam Boiler Ins. Co. v. Anderson, 130 N. Y. 134. So held in regard to the obligation of insurance agents who pro- cured policies to be canceled which they had obtained for their former principal. Id. The principal can recover commissions paid to such agents. Id. Y. AGENT'S LIABILITY TO THIED FEESONS. A member of a firm of brokers who is a member of a club, by ac- cepting an appointment as one of a purchasing committee thereof, assumes a fiduciary relation and cannot reserve a bene- fit for himself or his firm, but a commission allowed by the vendor belongs to the club. Redhead v. Pa/rhway Driming Club, 148 N. Y. 471. VI. PEINCIPAL'S LIABILITY FOE AGENT'S ACTS. A party is not chargeable with knowledge of the commence- ment of a foreclosure obtained by his attorney while acting for another. Benton v. Ontario County Nat. BTc., 150 N. Y. 126. 2148 Agency, VI — Animals. Agency — Continued. Principal is not chargeable with knowledge which the agent has gained in a scheme to defraud the principal. Menry v. Allen, 151 N. Y. 1. A principal is not charged with constructive notice where the agent has not actual notice. Wheatlwnd v. Pryor, 133 JST. Y. 97. False statements by a broker employed in negotiating an ex- change of real estate as to the price pai^ for his property by an owner who accepted the securities so procured, held, to be imputable to him. Fairchild v. MoMahon, 139 N. Y. 290. A principal is not chargeable with knowledge of an agreement made by his agent contrary to his instructions, and is entitled to recover on checks received from the agent under an agreement between the agent and the banker that the checks were to be given only as memoranda. Id. Agency cannot be established by declaration of agent or third person which has not come to knowledge of principal. Foster v. Bookwalter, 152 N. Y. 166. ) Albany; See Municipal Corporations. Aliens. An alien woman by her marriage to a citizen becomes a natural- ized citizen of the United States. Wainwright v. Low, 132 N". Y. 313. The title to lands taken by escheat, and undisposed of by the state, may be surrendered to heirs of aliens. Id. Land left by one who died leaving only alien heirs descends to alien heirs-at-laAv. Id. Alimony ; See Divorce. Ambiguity ; See Contracts, IX ; Deeds ; Evidence ; Statutes ; Wills. Amendment ; See Practice. Animals. A vicious domestic animal, if permitted to run at large, is a nui- sance ; liability of owner considered. Quilty V. JBattie, 135 E". Y. 201. This liability extends to the case of a married woman Avho per- mits her husband to harbor a vicious dog upon the premises owned by her. Id. Owner is presumed to have a knowledge of its nature. Rahnhe v. Friederich, 140 N. Y. 224. Where he kept dog chained and had knowledge of harm done by it, the question of negligence is for the jury. Id. Animals — Appeal, I, 2149 Animals — Continued. The owner of a diseased animal which has been killed in pur- suance of chapter 661, Laws 1893, is only entitled to the value of animal in its diseased condition. Ta^jpen v. 8taU, 146 N. Y. 44. Answer ; See Pleading. Ante-Nuptial Agreement ; See Husband aM,d Wife. Appeal ; See Costs ; Criminal Law : Error / Justice^ Courts / Practice; Reference; Surrogated Courts. I. Generally. 1. Right of. 3. Practice on. 3. What Questions Raised. 4. Judgment on. II. To CoTJUT OF Appeals. 1. What Appealable and What Not Appealable. 2. What Questions Raised. 3. Practice. i. Remittitur. 5. Granting or Refusing New Trial. I. GENEKALLY. 1. Bight of. The receipt by defendants in partition of the shares conceded to be due to them, held, not to preclude them from prosecuting appeals from the judgment. Mellen v. Mellen, 137 N. Y. 606. Where a referee's decision is in the nature of a nonsuit without findings of fact, it can only be sustained on appeal by showing that a finding of the essential facts to the plaintiff's recovery would have been so destitute of sufficient evidence to support them as to be erroneous as matter of law. Cowen V. Paddock, 137 K Y. 188. In an action to set aside an assignment, where two attachment creditors were made defendants, and answered admitting allega- tions of the complaint as to fraud and united with plaintiff in the action, and the assignment is sustained, such creditors have the right to appeal. Roberts & Co. v. Victor, 130 N. Y. 585. Such an appeal involved the power and not the discretion of the General Term. Id. One required to give security for payment of expenses may be regarded as a party. ' Id. Although a complaint containing two causes of action, upon which an attachment issued, afterwards vacated, be amended by 2150 Appeal, I. Appeal — Continued. dropping one cause of action, the plaintiff has a right to appeal from a judgment dismissing the amended complaint. Norfolk <& N. B. Hosiery Co. v. Arnold, 131 E". Y. 553. Leave to bring an action to vacate charter of a corporation is discretionary and not reviewable. People V. Buffalo Stone c& Cement Co., 131 IST. Y. 140. The denial of a motion to amend is discretionary and not review- able. . Bioe V. Grcmge, 131 JS". Y. 149. An order obtained on a default is not appealable by the party making the default. Matter of Peehamose Fishing Chib, 151 N. Y. 511. The decision of the County Court upon motion to confirm the decision of commissioners appointed to determine the necessity of a highway is final only on the questions of necessity and the amount of compensation. Matter of Be Camp, 151 IS. Y. 55Y. On appeal to a surrogate from the confirmation of an appraiser's report as to an estate for the purpose of a transfer tax, an appellant should be permitted to file additional allegations that, since the appraisal, litigation has been commenced to determine who are the heirs and next of kin of the decedent. Matter of Westurn, 152 IST. Y. 93. A disallowance of a demurrer to an indictment may be reviewed on an appeal from the judgment of conviction, even though the objection was not renewed on the trial. People V. Wilson, 151 IST. Y. 403. "Where a counter-claim is extinguished by the judgment, the amount thereof is to be added to that of the judgment in determining the real amount in controversy. Charlton v. Scoville, 144 N. Y. 691. A determination by the General Term as to the weight of evidence is final. Arnold v. Norfolk cfe New Brunswick Hosiery Co., 148 N. Y. 392. Executors may appeal from decree requiring them to give bond. Matter of O'Brien, 145 N. Y. 379. Under section 455 of the Criminal Code, the decision of the court on a criminal trial as to the indifEerency of a juror is not reviewable. People v. McGonegal, 136 N. Y. 62. A misstatement of the evidence in the charge of the court, vsrhich could have been corrected if the attention of the court had been called to it in season, is not reviewable on appeal without an exception. Id. A certificate that the case contains all the evidence is not neces- sary in an action tried by jury to authorize a review of excep- tions to the rulings qr charge of the trial judge. Bosenstein v. JPox, 150 IST. Y. 354. An appeal will lie to the Appellate Division from an order review- Appeal, I. 2151 Appeal — Continued. ing the determination of a county clerk as to regularity of nominations. Matter of Eiiimet, 150 N. Y. 638. Where there is no conflict of evidence the General Term may order the probate of a will, where that is the only issue. Matter of Wilcox, 131 N. Y. 610. If there are other issues it should be remitted to the surrogate for trial. Id. The General Term may, without an exception, review the grant- ing of an extra allowance, and the Court of Appeals will pass upon the legal right to grant it. Hanover F%re Ins. Co. v. Germawa Fire Ins. Co., 138 N. Y. 252. Discretion of court at Special Term is not reviewable. Freeman v. Grant, 132 IST. Y. 22. Unless exceptions relating to the nature of an action or efficiency of a verdict are well taken, no appeal will lie. Loohwood V. Bartlett, 130 N. Y. 340. The right to appeal from an order appointing commissioners of appraisal is not waived by appearing and cross-examining witnesses. Matter of N. T., LackaAJoam,na, etc., R. E. Co., 126 IST. Y. 632. "Whei-e an order does not state the grounds upon which it has been made, it is presumed to have been made in the discretion of the court and is not appealable. Cohn V. Baldurn, 141 N. Y. 563. In such a case the court cannot look to the opinion of the General Term to ascertain the ground of its decision. Id. An error of law in an order on the facts may be reviewed on appeal. Matter of Bartholich, 141 N. Y. 166. But where a new trial is had, such error cannot be pleaded against an order of affirmance of finding of jury. Id. 2. Practice on. Without findings or requests to find, or exceptions, a question of law is not before an appellate court for consideration. Mack V. CoUeran, 136 N. Y. 617. The absence from the record of a receipt for a payment for work under a building contract, the payment having in fact been proved, is no ground for reversal. McSorley v. Prague, 137 N. Y. 546. In an action for an injunction, the objection that the facts pleaded are not sufficient to confer equity jurisdiction will not be con- sidered for the first time on appeal. Cunningham v. Fitzgerald, 138 N. Y. 165. When an appeal is in time, under section 1316 of the Code. Whitmore v. Village of Tarrytown, 137 IST. Y. 409. The objection of a defect of parties plaintiff which had not been pleaded, and the refusal of the trial court to allow the cause to 2152 Appeal, I. Appeal — Continued. stand over until the point could be raised, are not grounds for reversal. ITnox V. Metropolitan Elevated Ey. Co., affirmed without opinion in 128 JS". Y. 625. What appeal does not come within section 1331 of the Code, which requires the amount of the undertaking on appeal to be fixed by the court. Stephens v. Humphries, appeal dismissed, 135 'E. Y. 637. "Where the complaint was dismissed upon the opening of plain- tiff's counsel, any offer to prove made in connection with the opening, unless objected to as inadmissible under the plead- ings, should be regarded as a part thereof. KUy V. Healey, 127 N. Y. 555. "Where, upon the granting of a peremptory mandamus with costs, a stay pending appeal having been denied, defendant complied with the writ, paid the costs, and his appeal to the General Term was dismissed on the ground that there was no question to be determined, such dismissal was error. Martin v. W. J. Johnson Co., 128 N. Y. 605. The rule preventing a party from appealing from an order under which he has accepted a benefit does not apply to one made for the purpose of removing an obstacle in the way of the respondent's proceeding with the motion on which the order was made. Matter of N. Y., Lackawanna, etc., R. R. Co., 126 E". Y. 632. "Where certain letters were not printed in the case on appeal, their exclusion for immateriality could not be deemed error. DeKlyn v. Silver Lake Ice Co., affirmed without opinion in 128 JSr. Y. 582. A refusal of the trial court to find on defendant's request facts established by uncontradicted evidence, coupled with a finding of substantial damages and an exception to a refusal to non- suit, may be reviewed on appeal on exception. Bohm V. Met. Elev. Ry. Co., 129 N. Y. 576. "Where findings are inconsistent, those most favorable to appellant are controlling on appellate court. Traders' Nat. Bank v. Pa/rker, 130 JST. Y. 415. But not where the court can reconcile the findings of reasonable construction. Jg^ "Where neither party requests to have any question of fact sub- mitted to the jury, but each asks for a verdict in his favor, upon appeal the disputed facts are deemed to have been deter- mined in favor of the party for whom the verdict is directed. Daly V. Wise, 132 K Y. 306. A quorum of four justices holding an Appellate Division of the Supreme Court are, in contemplation of law, the Appellate Appeal, I. 2153 Appeal — Continued. Division, and their unanimous vote of aflfirmance is a unanimous decision within the meaning of the Constitution. Ha/rrovm. v. Brush Elecbric Light Co., 152 N". Y. 212. Upon an appeal from a judgment which is entire and against several defendants, the appellate court must either totally affirm or reverse both as to the recovery and as to all the parties ; but in case where there are separate and distinct judgments, the judgment must be reversed as to such claim of defense and only to the parties' interest therein and affirmed as to the remainder. Altmom v. Rofeller, 152 N. Y. 498. A decision of the General Term is invalidated where a judge who granted the order at Special Term sits in the General Term. Van Arsdale v. King, 152 N. Y. 69. It is not a fatal objection on appeal that the case was tried out- side of the pleadings in the absence of some specific objection to that course. Farmers' L. & T. Co. v. Housatonio R. E. Co., 152 N. Y. 251. Finding of jury on a question of law erroneously submitted will be sustained if correctly made. Ming v. Corbin, 142 N. Y. 334. Ruhngs on a question of law must appear affirmatively by the record. McCulloch v. Dohson, 133 IN. Y. 114. A motion to set aside the report of a referee on the ground that his mind had become impaired is discretionary, and not review- able. Id. An order granting additional allowance of costs is not reviewable. Id. Appeal from nonsuit will not be sustained on ground that proof of negligence was defective in not showing facts assumed. Stuter V. McMitee, 142 N. Y. 200. On an appeal under section 749 of the Code of Civil Procedure from the commitment of children pursuant to section 291 of the Penal Code, when the evidence upon which the appeal is allowed does not allege any errors with reference to a determination of the facts, the evidence is not required to be returned, and the failure of the magistrate to preserve it furnishes no ground for re- versal. People V. Giles, 152 N". Y. 136. "When a judgment may be reversed in part and only as to parties interested therein and affirmed as to the remainder. Altmam, v. Hofeller, 152 N. Y. 498. "Where the evidence is conflicting, the court will not draw an in- ference to support a judgment. Clemans v. Svp. Assemhly Royal Soo. of Good Fellows, 131 A plain violation of the rights of defendant would be necessary to obtain a reversal of conviction because of an erroneous open- ing upon the trial of a criminal action. People V. Vwn Zile, 143 N. Y. 368. 2154 Appeal, I. Appeal — Continued. Reference to a former indictment of defendant jointly with an- other, as preliminary to reading his testimony upon trial of that indictment, affords no ground for reversal. Id. The relation of one proposition to another which qualifies it may he referred to. Myers v. Deem, 132 N. Y. 65. Evidence erroneously admitted at the trial on behalf of appellant cannot be considered on appeal. Brady v. Mayor, etc., of W. T., 132 K Y. 415. "Where the evidence supports the defendant's claim, a refusal to find for plaintiff is immaterial. Aron V. De Castro, 131 N. Y. 648. An error will not be presumed, but must be clearly proven. Wells V. Gariut, 132 JST. Y. 430. The court must find that no error was committed in any ruling to which an exception was taken before it can reverse. Heed V. MeConnell, 133 JST. Y. 425. The effect of a request for the direction of a verdict is to clothe the court with the functions of a jury. Effect of such requests and denials thereof discussed and considered on appeal. Thompson v. Simpson, 128 JST. Y. 270. Application of rule that a judgment will not be reversed because of inconsistent conclusions of law, where it is in accord with correct conclusions. Know V. Metropolitan Elevated Ry. Co., affirmed without opinion in 128 N. Y. 625. Error in improperly admitting parol evidence as to the scope of a written contract, disregarded on appeal. Avery v. Starhuck, without opinion, 127 N. Y. 675. A " finding of fact " will, for the purpose of upholding a judg- ment, be given the same effect as though so designated and classified in the report. Berger v. Ya/rrellmoMn, 127 !N". Y. 281. No power on appeal to amend pleadings so as to conform to the proof exists for the purpose of reversing a judgment. Trustees of Amherst College v. Bitch, 151 N. Y. 282. The rule established in Slocovich v. Orient. Mut. Ins. Co., 108 N". Y. 62, that the decision of a trial judge as to the competency of an expert witness will not be reversed, reiterated and applied. Affirmed, it seems, without opinion, 128 N. Y. 624. Case when a notice of appeal from the Board of Claims, that the board " erred in receiving evidence against the objection and exception of the claimant," is sufficient. McDonald v. State, 127 N. Y. IS. The appellate court cannot offset one error against another error, where no exception was taken, and no appeal was taken there- from. Monnet v. Mers, 127 N. Y. 151. An order of the General Term of the Supreme Court affirming a judgment of conviction in the Court of Oyer and Terminer and Appeal, I. 2155 Appeal — Continued. remitting all proceedings to the latter court, operates to restore the authority of such court. Peoj}le v. Hughes, 137 N. Y. 29. When erroneous legal proposition contained in a hypothetical question to a juror on trial of a challenge resulting in his ex- clusion, is not ground for exception. People V. Fcmshcme, 137 N. Y. 68. A ruling excluding evidence will not be reversed on appeal on a ground not taken upon tbe trial. Matter of Bateman, 145 N. Y. 623. "Where the court voluntarily allows an exception to a ruling, a formal exception need not be taken. Mitchell V. Turner, 149 N. Y. 39. Where the General Term reverses a surrogate's decree on a ques- tion of fact, it must direct a trial by jury unless the case is shown to be one in which the court could properly take the facts from the jury and determine the question as one of law. Matter ofLoMdy, 148 N. Y. 403. Admissions of parties not given in evidence on the trial will not be received by the appellate court. People ex rel. Manhattan B. Co. v. Barker, 146 N. Y. 304. Upon reversal of a judgment for the plaintiff the General Term should not direct a final judgment for the defendant, unless it is clear that upon a new trial the plaintiff could not possibly recover. Iselin v. Starin, 144 N. Y. 453. Where the question as to what amount is due is one of fact upon which either party may demand a jury trial, the General Term has no power to add to the original judgment a sum which it finds from the evidence to be due. Dayton v. ParTee, 142 N. Y. 391. A case where the General Term, upon a reversal of a judgment in plaintiff's favor, has power to dismiss the complaint. Brackett v. Griswold, 128 IST. Y. 644. Any further reasons for a new trial should be presented to the Supreme Court upon an application to modify its order. Id. On reversing an order vacating a stay and denying a motion to change the place of trial in a criminal action, made on the ground that a fair and impartial trial could not be had, the Appellate Division should not aside an intermediate trial and conviction. People v. McLaughlin,, 150 N. Y. 365. Where defendant urges a different ground on appeal than that used upon motion for nonsuit, it will not be considered. Pratt V. Dwelling House Mut. Fire Ins. Co., 130 N. Y. 206. ,3. What Questions Baised. An objection to the admission of a copy of a mechanic's lien that " it IS not properly certified," is not available upon appeal un- less specific defect is pc^inted out. Hwnter v. Walter, affirmed on opinion below in 128 N. Y. 668. 2156 Appeal, I. Appeal — Continued. Objections taken upon a reference of a special issue cannot, where the rulings are not brought before the court, be made the sub- ject of review on appeal. Drexel v. Pease, 129 N. Y. 96. Where the court in directing a verdict included the amount of tax bills for 1876-1877 with those for 1878-1879, and the charges for one of the last years and part of the others were due, a general exception does not enable the court to decide that the taxes for the earlier years should not have been included. Wells V. Higgms, 132 N. Y. 459. If the exception had been specific, opportunity would have been afforded for correction. Id. A misdirection of the court which may have prejudiced a party cannot be disregarded on appeal. Moore v. N. Y. Elev. E. B. Co., 130 N. Y. 523. When properly excepted to, an error in receiving evidence can only be disregarded where it did no harm. Jeferson v. N. Y. Elev. R. R. Co., 132 N. Y. 483. Where no objection has been raised at a trial, a question which might have been raised under such objection cannot be raised on appeal. Moffat v. Fulton, 132 JST. Y. 507. Objections not raised on trial cannot be considered on appeal. Id. What questions cannot be raised for the first time on appeal. Clason V. Baldwin, 152 N. Y. 204. It is not legal error to permit a medical expert who has personally examined the person for the purpose of determining his mental condition at the time of the examination to give his opinion, without disclosing particular facts on which he bases his opinion. People v. Youngs, 151 N. Y. 210. Exceptions to rulings on examination of proposed jurors presents no question for review, when the juror whose competency was questioned did not sit. People v. Scott, 153 N. Y. 40. On appeal, defects which if pointed out during the trial might have been obviated cannot be raised. Brady v. Nolly, 151 N". Y. 258. An exception is necessary to raise the question that a finding is unsupported by evidence. Turner v. Weston, 133 N. Y. 650. The exception must indicate clearly what fact is challenged. Id. An exception to the introduction of evidence as to plaintiff's in- come from his business before and after the injury, based solely upon the ground that the allegation in the complaint was too short to admit proof of special damages, is not available on appeal. Frdbisher v. Fifth Avenue Transp. Co., 151 N. Y. 431. The right to object to evidence is waived either where no objec- tion is made when evidence is offered or where no motion to strike out is made. Brady v. NalVy, 151 IST. Y. 258. If an aiRdavit on information and belief is insufficient, a question of law is presented for review on appeal. Murphy V. Jack, 142 N. Y. 215. Appeal, I. 2167 Appeal — Continued. Where a finding is not excepted to, it will be assumed that no ob- jection was offered to the evidence. Ashton V. City of Rochester, 133 N. Y. 187. The court will not assume the existence of a fact where the tes- timony is conflicting. HolUster v. Mott, 132 N. T. 18. An objection not taken by answer nor at trial is not available. Buffalo Stone and Cement Co. v. Delaware, Lackawanna & Western R. R. Co., 130 N. Y. 152. The erroneous ruling of trial court will not be presumed, but must be shown. Sallade v. Gerlach, 132 N. Y. 648. A finding in favor of contractors will be presumed to be in support of lienors who stood in place of the former. Thomas v. St&ma/rt, 132 1&. Y. 680. Remarks of a judge not containing any erroneous rule of law are not reviewable. Cornier s v. Walsh, 131 N. Y. 590. JS^otice of appeal from a decree of a surrogate, " from the decree and each and every part thereof," raises questions of fact. Matter of Stewart, 136 N. Y. 413. The rule applied in actions tried by jury, that a motion for a new trial is necessary to enable the General Term to review the facts, does not apply to the case of a trial before a surrogate. After the direction of a verdict, if the court on motion sets it aside and grants a new trial and the order is appealed from, the facts are not before the General Term for the purpose of de- termining the preponderance of evidence, but the only question is whether there is evidence to go to the jury. Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473. Case where a finding of an essential fact will be presumed, where the evidence warranted it. Powers V. Clark, 127 JST. Y. 417. Upon appeal from a surrogate's decree, errors in the admission or rejection of evidence may be disregarded if they could have no influence upon the case. Matter of Miner, 146 N. Y. 121. An objection which could have been obviated if taken on the trial cannot be raised for the first time on appeal. Mayor V. New York Refrigerating Construction Co., 146 N". Y. 210. An objection to defects in the proofs as to the service of an at- tachment cannot be raised for the first time on appeal. Flandrow v. Hammond, 148 IST. Y. 129. Unless so regarded on trial, hearsay evidence will not be deemed sufficient proof on appeal. Dayton v. Parke, 142 IST. Y. 391. An objection that a paper introduced in evidence was made with view to a settlement cannot be raised for the first time on appeal. Gillies V. Manhattan Beach Improvement Co., 147 IST. Y. 420. 2158 Appeal, I. Appeal — Continued. An objection that there was a variance between the pleading and proof cannot be taken for the first time on appeal. Id. An objection that plaintiff had an adequate remedy at law cannot be raised for the first time on appeal. Waheman v. Wilbur, 147 IST. Y. 657. An exception to the denial of a motion for a new trial does not enable the party to argue on appeal a point not taken on the trial. Warner v. City of Jiochester, 149 W. Y. 563. Where the complaint is dismissed at the close of plaintiff's evidence on a reference and the plaintiff excepts to such ruling, such exception is sufficient to present the question whether plaintiff failed to establish a cause of action. Raabe v. Syuier, 148 JST. Y. 81. An error in the admission of evidence is cured where the court subsequently strikes it out and directs the jury to disregard it. People Y. Schooley, 149 N. Y. 99. The determination by the jury, upon conflicting evidence of the question as to whether or not certain representations as to the genuineness of certificates of its stock were made by a corpora- tion, is conclusive. Jarvis v. Manhattan Beach Co., 148 N» Y. 652. The General Term of the Supreme Court, on appeals from pro- bate decrees, has the same power as the surrogate to determine the facts. Matter of LoMdy, 148 IST. Y. 403. 4. Judgment on. The fact that a referee awarded upon a claim for services a less sum than the amount fixed by plaintiff's witnesses in answer to a hypothetical question, defendant having given no evidence upon the subject, does not show disregard of evidence or require a reversal of his finding on appeal. Collier V. Rutledge, 136 IST. Y. 621. An order giving leave to appeal to the Court of Appeals in a case where the matter in controversy is less than $500, which does not give the reason for allowing, is insufficient. Sqmre v. McDonald, 138 N.. Y. 554. "Where it appears upon appeal that parties essential to complete determination of case have, not been brought in, the court will reverse the judgment, although the defect of parties is not raised by defendant's pleading. Moulton v. Cornish, 138 N". Y. 133. The effect of judgment absolute on appeal is to admit the whole of plaintiff's action, and the only question remaining is to decide amount of damages. Bossout V. Rome, Watertown, etc., R. R. Co., 131 I")". Y. 37. On conflict of evidence, a verdict for plaintiff should be sustained. Conde v. Wiltsie, 131 JST. Y. 647. "Upon reversal of an order vacating an attachment, a creditor may Appeal, I. 2159 Appeal — Continued. maintain an action against junior creditors for money received from sheriff. Haebler v. Meyers, 132 IST. Y. 363. A judgment rendered upon exceptions heard at General Term in the first instance is a General Term judgment. MarPi/ii v. Piatt, 131 N. Y. 641. No appeal can lie therefrom to the General Term. Id. But one might have heen taken to the Court of Appeals. Id. A discretionary order of Special Term may be reviewed by the General Term. Bossout V. Rome, Watertown, etc., H. M. Co., 131 N. Y. 37. The General Term, when it finds error in part of a judgment requiring a reversal of such part, may reverse the whole judg- ment, and such reversal will not be interfered with upon appeal. Gray v. Manhattan Ey. Co., 128 Is"". Y. 499. Erroneous admission of evidence of offer, when not ground for reversal. Damages for depreciation of property. Effect of payment on an injunction. Lawrence v. Metropolitan Elevated Hy. Co., affirmed 126 ]Sr. Y. 483. Upon appeals by both parties from judgment for damages, plain- tiff claiming it to be inadequate and defendant that it is exces- sive, the General Term has no authority to afiirm as to one appeal and reverse as to the other. National Board of Marine JJuderwriters v. WationaZ Bank of the Republic, 146 N. Y. 64. "Where a judgment is vacated pending an appeal therefrom, the appeal should be dismissed. Duryea v. Fueclisel, 145 N. Y. 654. Upon the reversal of a conviction on the ground that the verdict was against the weight or that justice required a new trial, the defendant should not be discharged, but a new trial should be ordered. People v. Camp, 139 N. Y. 87. The General Term can withhold an injunction and leave plaintiff to his remedy at law unless damages are substantial. Gray v. Manhattam, Ry. Co., 128 E". Y. 499. When damages by way of costs will not be awarded upon affirm- ance of a judgment for plaintiff on a second appeal. Blazy V. McLean, 146 N. Y. 390. Upon the modification of a surrogate's decree, the General Term has discretionary power to determine whether the appellant shall be allotted costs in the Surrogate's Court, and the Court of Appeals has no jurisdiction to review such discretion. Matter of Benton, 137 IST. Y. 428. It is within the discretion of the General Term to grant a motion to dismiss the appeal because of failure to serve printed copies of appeal papers, and the exercise of this discretion is not reviewable in the Court of Appeals. Wetmore v. Wetmore, 137 N. Y. 623. 2160 Appeal, I, II. Appeal — Continued, Where the findings of the trial court justify the judgment, the General Term cannot reverse on questions of law only. Cvdahy v. Bhineha/rt, 133 IS". Y. 248. "Where both parties appeal, a reversal of defendant's appeal is legally an affirmance of plaintiff's appeal. Id. A reversal of defendant's appeal only entitles plaintiff to restora- tion of the judgment of trial court. Id. XL TO COUKT OF APPEALS. 1. What Appealable and What Not Appealable. In the absence of a statement in the order of the General Term reversing a judgment and granting a new trial, that the re- versal was upon questions of law only, the Court of Appeals will not review. Cooke v. Underhill Mfg. Co., 138 JST. T. 610. An exception taken to the denial by the trial judge of a motion for a new trial upon his minutes, not being taken during the trial but after its completion, presents no question for review in the Court of Appeals. Gridley v. College of St. Francis Xamier, 137 N. T. 327. The refusal of the trial court to permit an amendment of the an- swer on the trial is not reviewable in the Court of Appeals. Coffim, V. Oram,d Rapids HydraMUo Co., 136 JST. Y. 655. Where plaintiff recovered a judgment, but the General Term ordered a new trial, he could not on appeal from that order avail himself of errors in ruling against him on the trial. Cooke V. Underhill Mfg. Co., 138 N. Y. 610. Where there is no exception to any finding of fact by the referee or to the refusal to find any fact, the Court of Appeals cannot review any finding or refusal. Donovan v. Clarh, 138 IST. Y. 631. Findings of a referee upon conflicting evidence are, after affirm- ance by the General Term, not reviewable in the Court of Appeals. Crim v. Sta/rhweather, 136 JN". Y. 635. Where there is conflicting evidence with respect to a disputed fact arising upon a motion, it is the province of the court in which the motion is made to settle the conflict, and the Court of Appeals will not interfere with the result. Taylor v. Gra/nite State Provident Asso., 136 N". Y. 343. The Court of Appeals has no power to review a verdict for ex- cessive damages. link v. Sheldon, 136 IS". Y. 1. An objection that the application for a review on certiorari of an assessment for taxation was not made within thirty da3'^s after notice thereof, will not be first heard in the Court of Appeals. People ex rel. Harlan c& SblUngsworth Co. v. Campbell, 139 K Y. 68. Where the comptroller received affidavits without objection in- stead of requiring the witnesses to be produced for examination, Appeal, II. 2161 Appeal — Continued. he could not be heard to object to the competency of the evi- dence, ^d. Appellant has the right within the statutory time for appealing to take and perfect another appeal where former undertaking on appeal was withdrawn. VuUiford v. Gadd, 135 N. Y. 632. An appeal from so much of an order as awards a new trial is in- effectual unless accompanied by a stipulation for judgment ab- solute. Matter of Valentine, 136 JSi . Y. 623. Order of General Term, granting power to elevated road to con- struct an approach to bridge, is discretionary, and no appeal therefrom lies to Court of Appeals. Matter of Fast Biver Bridge Co., 143 N. Y. 249. Court of Appeals has no jurisdiction to review discretion of General Term allowing costs in Surrogate's Court. Matter of Denton, 137 N. Y. 428. Nor the discretion of General Term in granting order to dismiss appeal for failure to serve printed copies of appeal papers. Wetmore v. Wetmore,^ 137 IST. Y. 623. The Court of Appeals may, on appeal from decision of General Term, pass upon the question of the legal right of court be- low to grant an extra allowance. Hanover Fi/re Ins. Co. v. Oermania Fire Ins. Co., 138 N. Y. 252. An award of appraisers in condemnation proceedings, after con- firmation by the General Term, is not reviewable in the Court of Appeals. Matter of N.Y.& BrooMyn Bridge, 137 IST. Y. 95. The action of the General Term may be the subject of review. Id. The discretion of the Supreme Court in relieving a purchaser at foreclosure is not reviewable in the Court of Appeals. Crocker v. Collner, 135 E". Y. 662. Court of Appeals will assume that the appeal from the order was valid, and therefore reviewable before it when record does not contain proper objections. WhiPmore v. Village of Ta/rrytown, 137 E". Y. 409. The exercise of the discretion of the Special Term in appointing a receiver is not reviewable in the Court of Appeals. Dawson v. Parsons, 137 N. Y. 605. Where the General Term in the exercise of its discretion refuses a new trial no appeal lies to the Court of Appeals. Kaare v. Troy Steel c& Iron Co., 139 X. Y. 369. An appeal from the order of amendment of General Term to their original decision and from so much of the order of reversal as contained it brought up nothing to the Court of Appeals. Altman v. Ilofeller, 137 N. Y. 619. "Where cause of action stated in the complaint involves a sum less than $500, the Court of Appeals will examine a counter-claim, and if it could not be recovered will dismiss the appeal. Societa Italioma Di Beneficema v. Sulzer. 138 N. Y. 468. 136 2162 Appeal, II. Appeal — Continued. An order of the General Term affirming an order of the Special Term, granting a motion by plaintiff to discontinue an action for divorce brought by the husband upon payment of costs, is not reviewable in the Court of Appeals. Mom^e V. Moore, 138 N. T. 679. The Court of Appeals has not jurisdiction to review the discretion of the Supreme Court in quashing a writ of mandamus. People ex rel. Sasbrouch v. Supervisors of Dutchess, 135 K T. 522. "What judgment is not a final one appealable to the Court of Ap- V peals. Bich v. Manhattan By. Co., 138 N. Y. 668. here the conduct of the party applying for the writ has been such as to render it inequitable to grant him relief by momdoj- mus, the Supreme Court may in its discretion deny the writ, and an appeal will not lie from the order of denial to the Court of Appeals. People ex rel. Durant Land Improvement Co. v. Jeroloma/ii, 139 ]Sr. T. 14. _ The Court of Appeals will not in such case look at the opinion of the General Term to discover the grounds on which the order was made. Id. If there is conflicting evidence as to whether the examination of a long account will be involved, the decision of the court below, ordenng a reference, will not be reviewed in the Court of Ap- peals. Cassidy v. McFarland, 139 N. Y. 201. An order denying an application for the appointment of com- missioners of appraisal, in proceedings to acquire the rights of abutting owners, is appealable to the Court of Appeals. Matter of Metropolitan Elevated By. Co., 136 N. Y. 500. The control possessed by courts of original jurisdiction over their judgments and orders, as well as in reference to the fact or the sufficiency of a notice of appearance in the ■ action, is absolute and beyond review in the Court of Appeals. Mayor, etc., of W. Y. v. Smith, 138 N". Y. 676. An action to recover the deposit made on a purchase of lands and expense of examination of title, on the ground that the vendor's title was defective, does not affect the title to real property so as to permit an appeal to the Court of Appeals. Miele v. Deperino, 135 N". Y. 618. The Court of Appeals cannot review the finding of the jury upon facts. People v. TrinMe, 131 N. Y. 118. The Court of Appeals cannot review exercise of discretion, unless abused. Bossout V. Borne, Watertown, etc., B. B. Co., 131 N. Y. 37. The granting of a writ of certiorari under chapter 269 of 1880, to review an assessment at the instance of the taxpayer, is not dis- Appeal, II. 2163 Appeal — Continued. cretionary, and an order of the General Term quashing the writ is appealable to the Court of Appeals. Matter of Corwin, 135 N. Y. 245. An order of reversal made on the ground that plaintiff had no legal right to maintain the action is reviewable by Court of Appeals. Birge v. Berlin Iron Bridge Co., 133 N. Y. 477. In reviewing an order of reversal the Court of Appeals takes the facts as set forth in the moving papers. Id. An order of General Term granting a new trial, on ground that the verdict is against the evidence, is not a final order. Baldwin's Bamlc of Penn Yam, v. Butlers, 133 N. Y. 564. Keferee's discretion is not reviewable. Wright V. Rensens, 133 N. Y. 298. Motion to strilce out immaterial evidence, no ground for reversal. Id. "Where a person applies at Special Term to be made a party to an action pending in Court of Appeals, which application is denied, the decision of General Term affirming the order of Special Term cannot be reviewed on appeal. Brennan v. Rail, 131 IST. Y. 160. "Where the amount in controversy is less than $600, action is not appealable to Court of Appeals. Id. An objection not clearly presented by exception and not apparent cannot be considered. Mitchell V. Met. Elev. By. Co., 132 IST. Y. 552. An appeal does not lie from a decision of the Appellate Division in a proceeding against a husband for failure to support his wife. People ex rel. Com/rs. of PuIMg Charit/ies cfe Coi'recUon v. Cullen, 151- N. Y. 54. A case in which a unanimous decision of the Appellate Division is not appealable under section 191 of the Code. Huda V. American Olucose Co., 151 IST. Y. 549. The Court of Appeals will not review an order instructing the receiver of a corporation after the sale of its property. Matter of Peehamiose Fishing Club, 151 N. Y. 511. An order quashing a writ of certiorari on the ground that the relator had no power to prosecute is reviewable in the Court of Appeals. Forest Commission v. Campbell, 152 N. Y. 51. The amendment to section 191 of the Code, by chapter 559 of 1896, was a competent exercise of the legislative power. ScioUna v. Erie Preserving Co., 151 N. Y. 50. An application by the plaintiff's attorney to vacate a satisfaction of the judgment recovered by him is a special proceeding and not a motion, and an order of the Appellate Division affirming an order granting the application is appealable to the Court of Appeals. Peri v. N. Y. C. & II. E. E. E. Co., 153 N. Y. 521. 2164 Appeal, II. Appeal — Continued. What is not of itself sufficient to warrant the granting of a cer- tificate of an appeal to the Court of Appeals under section 191 of the Code ; when the authority to grant such a certificate should be exercised. Sciolina v. Erie Preserving Co., 151 jST. T. 50. Counsel have no right to appeal in a capital case solely for the T)urpose of delay. People v. Scott, 153 N. Y. 40. When an appeal wiU not lie to the Court of Appeals from an order denying a motion for a new trial in a capital case on the ground of newly-discovered evidence. People V. Mayhew, 151 IS". Y. 607. The Court of Appeals will review an order to determine the status of a voter. Matter of Gage, 141 IN". Y. 112. Article 6, section 9 of the Constitution, that " no unanimous de- cision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to support a finding of fact, shall be reviewed by the Court of AppeaJs," applies to special proceedings as well as to actions. People ex rel. Manhattan P. Co. v. Barker, 152 X. Y. 417. The fact of a unanimous judgment or order of affirmance by the Appellate Division is a decision that there is evidence sup- porting the findings of fact as expressed or necessarily implied. Id. Section 9, article 6 of the Constitution applies to a proceeding by certiorari under chapter 269 of 1880, to review an assessment for taxation ; what questions may be reviewed upon appeal from such decision. Id. An order made on question of law is appealable. White V. Inebriatei Home for Kings Co., 141 N. Y. 123. An order of restitution permitting counsel fees and commissions is appealable. Pittsjield Wat. Bank v. Bayne, 140 X. Y. 321. A decision of the surrogate to sell real property to pay debts may be reviewed at G-eneral Term, but no appeal lies to the Court of Appeals. ICingsland v. Murray, 133 X. Y. 170. Where an executor accepts a part commission and such allowance is approved by a surrogate and General Term, such determina- tion win not be reviewed bv Court of Appeals. Matter of Hodgman, 140 X. Y. 421. Court cannot review a void order unless it affects a substantial right. De Lanoey v. Piepgras, 141 X. Y. SS. An order not affecting a substantial right not resting in discretion is not appealable. Id. An order requiring restoration of premises does not affect a sub- stantial right. Id_ The Court of Appeals can review the exceptions to evidence onlv. Goodsdl V. Western Union. Tel. Co., 130 N. Y. 430. The conclusion of the trial court, approved by General Term, is final. Anthony v. Wise, 130 X. Y. 662. Appeal, II. 2165 Appeal — Continued. The exercise of discretion of a referee at trial is not reviewable in Court of Appeals. Barnes v. Brown, 130 N. Y. 372. A verdict rendered, subject to opinion of General Term, cannot be reviewed. People v. Featherly, 131 IST. Y. 597. The fact that the record did not contain any exception precluded its consideration. Id. The Court of Appeals can review only questions of law raised by exceptions taken during trial. Wicks V. Thompson, 129 N". Y. 634. Keport of referee, dismissing complaint, and not containing any finding of facts, is not reviewable. Oilmour v. Prentice, 132 IST. Y. 488. Where the surrogate decides to remove a testamentary trustee upon any of the statutory grounds, the question resting in the discretion of the surrogate is reviewable by the General Term^ but not by the Court of Appeals. Matter of MoOilUvray, 138 N. Y. 308. The order of a surrogate opening a decree of his court for fraud, which order has been affirmed by the General Term, is not reviewable on the facts by the Court of Appeals. Matter of Flynn, 136 IST. Y. 287. An order made in a special proceeding before a surrogate and directing an executor to make and file an account is not a final order within section 190, subdivision 3 of the Code, and is not reviewable. Matter of Callahan, 139 N. Y. 51. A discretionary order where there has been no abuse of discretion is final in the Court of Appeals. Matter of Peekamose Fishing Club, 151 N. Y. 511. Eefusal of the court to issue a writ of peremptory mandamus on. the relation of a corporation against the Commissioner of Public Works is not reviewable in the Court of Appeals. People ex rel. N. Y. Underground By. Co. v. Newton, 126 ]Sr. Y. 656. Jurisdiction of Court of Appeals to review a decision of the Supreme Court, rendered upon the report of commissioners, to appraise lands under the Eapid Transit Act, discussed and de- cided. Matter of MetropoUtam, Elevated Ry. Co., 128 KY. 600. The Court of Appeals cannot review a judgment of the General Term reversing upon the facts a decree of the surrogate, nor does an appeal from a subsequent judgment after such new trial bring up such order for review, under Code Civil Procedure, sections 1316, 1317. Matter of Budlong, 126 N. Y. 423. An order denying a motion for a new trial, involving the deter- mination of a question of fact, is not, after affirmance by the General Term upon proofs adduced and the exercise of discretion, reviewable in Court of Appeals. Ramdall v. Paoka/rd, 142 E". Y. 47. 2166 Appeal, II. Appeal — Continued. iVpplication of the rule in Nostrand v. Knight, 123 N. T. 614, as to the review in the Court of Appeals of a decision of the General Term reversing ajudgment upon the facts. Phosnix Iron Co. v. Vessels " Hopatcong " omd " Musconet- Gong," 127 K T. 206. Who are parties aggrieved under Code Civil Procedure, section 1294, and not entitled to appeal to Court of Appeals. Bryant v. Thompson, 128 N". T. 426. A judgment which determines questions between parties and orders an accounting, is interlocutory and not appealable to the Court of Appeals. MoKeown v. Officer, 127 jN". Y. 687. An order quashing a writ of certiorari issued under chapter 269, Laws 1880, to review an assessment of the personal property of a corporation for taxation, is appealable to the Court of Appeals. People ex rel. Commeroial Mut. Ins. Co. v. Tax Cfommis- sioners, 144 IST. Y. 483. A statement, in an order of General Term reversing an order denying a motion for a new trial, that such reversal is for errors of law only and not for errors of fact, is not reviewable by the Court of Appeals. Mickee v. Walter A. Wood Mowi/ng c& Reapi/hg Machine Co., 144 N. Y. 613. "Where it appears by the complaint that the plaintiff is entitled to equitable relief, the granting of an injunction pendente lite is discretionary, and no appeal lies therefrom to the Court of Appeals. Castoriano v. Dupe, 145 N. Y. 250. A motion for a new trial on the ground that a verdict for nominal damages was improper is not reviewable by the Court of Appeals. Jvm,g v. Eeuffel, 144 N. Y. 380. Order of the General Term reversing an order allowing an amend- ment of the complaint after trial is not reviewable in the Court of Appeals. Sprague v. Cochran, 144 N. Y. 104. A judgment is not reviewable in the Court of Appeals where the record shows that the amount in controversy was less than $500. Thaoher v. Hope Cemetery Ass'n, 146 N. Y. 381. In the absence of any proof or finding of substantial damage, a refusal^to grant an injunction restraining the erection of a bay \vindow beyond the street line will not be disturbed. Wormser v. Brown, 149 N. Y. 163. Appeal to Court of Appeals lies on part of next of kin where the executor applies for taxation of appraiser's fees after the same have been paid by him. Matter of Harriot, 145 IvT. Y. 640. To authorize the Court of Appeals to review, on an appeal from an affirmance of a final judgment, a prior aifirmance by the General Term of an interlocutory judgment, the notice of appeal Appeal, 11. 2167 Appeal — Continued. must specify such, judgment and thus express appellant's election to have it reviewed. Mch V. Manhattan R. Co., 150 N. Y. 542. An appeal will not lie to the Court of Appeals from an order of General Term reversing, on the law, an order denying a motion for a new trial in an action tried by jury, where there was a conflict of evidence. Eoes V. Edison General Electric Co., 150 N. Y. 87. An order denying a motion for a new trial on the ground of newly-discovered evidence is not reviewable by the Court of Appeals. White v. Benjamin, 150 N. Y. 258. An appeal will not lie to the Court of Appeals from an order con- firmmg the report of commissioners in condemnation proceed- ings either for error of law or fact, Matter of Broohlyn El. R. R. Co., 147 N. Y. 344. An objection that the commissioners considered a tract of land with three separate buildings as three parcels instead of as a whole presents a question of law. Id. An exception to the denial of a motion for nonsuit on the ground of insufficiency of the proof of defendant's negligence pre- sents no question of law which can be reviewed by the Court of Appeals. Szuchy V. Hillside Coal & Iron Co., 150 N. Y. 219. An order refusing to allow a person to be brought in as a party in mandamus proceedings is a discretionary one, and is not appealable to the Court of Appeals. Matter of Bohnet v. Mmjor, 150 IST. Y. 279. An order made in an action for dissolution of a corporation, upon application by a creditor, directing the permanent receiver to pay such creditor's claim, is not appealable as of right to the Court of Appeals. People V. Amsrican Loan <& Trust Co., 150 N. Y. 117. An action to recover damages for injury to real property by diversion of an alleged natural stream of watercourse is not an action affecting the title to real property, and an appeal to the Court of Appeals would not lie. Hill V. Board of Water Comrs., 150 N. Y. 547. An order denying a motion for a new trial on the ground of newly- discovered evidence, which states as the reason for such denial that the action was prematurely brought, is final and is review- able in the Court of Appeals. Whitney v. Davis, 148 JST. Y. 256. An order of General Term reversing an order affirming an award of commissioners appointed in a proceeding by a land owner to recover compensation for land taken for public use and dismiss- ing the proceeding is appealable to the Court of Appeals. Matter of Clarh v. Water Comrs. of Amsterdam, 148 JS". Y. 1. 2168 Appeal, II. Appeal — Continued. The jurisdiction of the Court of Appeals cannot be changed or enlarged by the stipulation of parties. Soes V. Edison General ElecVric Co., 150 IST. Y. 87. An appeal may be taken to the Court of Appeals as matter of right in an action commenced in anv of the late superior city courts. Hallilnirton v. Clapp, 149 N. Y. 183. A judgment of the General Term reversing upon the facts a judg- ment of a Court of Sessions, under section 343 of Penal Code, is not appealable. People v. MitcMl, 142 K Y. 639. Competency of juror is a question of fact and cannot be reviewed by Court of Appeals. People v. McGonegal, 136 JST. Y. 62. The Court of Appeals cannot review the discretion of the trial court as to measure of punishment, which is within the statute. Id. Erroneous statements of law in the charge or improper comments on the facts or evidence in a capital case, if prejudicial to the defendant, may be reviewed or corrected by the Court of Ap- peals although no exception was taken. People V. Barberi, 149 IST. Y. 256. Where a first award in condemnation proceedings has been set aside and another hearing had, an appeal does not lie from an order of the General Term affirming an order confirming the second report. Matter of Southern Boulevard R. B. Co., 141 N. Y. 532. The evidence may be referred to to ascertain whether the amount in controversy is sufficient to allow an appeal to the Court of Appeals. Blake v. Krom, 128 IST. Y. 64. When an appeal to the Court of Appeals should have been dis- missed because damages did not amount to $500. Id. On appeal to the Court of Appeals, party could not insist that his demand was larger than was stated in the pleading. Id. A final order in special proceedings affecting a substantial right is appealable. Matter of King, 130 JST. Y. 602. The Court of Appeals has no power to review an order of rever- sal of the Appellate Division, granting a new trial on an excep- tion to the decision of the court or referee, where there is a material and controverted question of fact. Otten V. Ma/iihattam, B. Co., 150 X. Y. 395. The constitutional prohibition against the review by the Court of Appeals of an unanimous decision of the Appellate Division has no application to an appeal in a case which involved upon a question of law. Matter of Green, 153 N. Y. 223. Where the appeal is taken from a judgment of affirmance of the General Term, the Court of Appeals may review an essential finding of fact made without the support of any evidence. Matter of Rogers, 153 IST. Y. 316. Section 20 of chapter 601, Laws 1895, authorizing the Court of Appeal, II. 2169 Appeal: — Continued. Appeals to review an order convicting a party as a disorderly person is not unconstitutional. People ex' rel. Commissioners of Charities v. Cullen, 153 N. Y. 629. Appeals are not allowed to this court for the purpose of settling . abstract questions. Id. An appeal does not lie to the Court of Appeals unless the party appealing has an interest in the controversy. Id. Eignt of party depends only upon express statutory permission. Bryant v. Thompson, 128 IST. Y., 426. The court will not review in the same case a prior decision by Second Division after a full argument and consideration. Cluffy. Bay, 141 N. Y. 580. An appeal may be taken to the Court of Appeals from an order dismissing a writ of certiorari for want of jurisdiction. People ex rel. 0^ Connor y. £oa/rd of Supervisors of Queens Co., 153 N. Y. 3T0. A finding of fact is conclusive on the Court of Appeals if there is no evidence to support it. la Rue v. Smith, 153 N. Y. 428. All evidence necessary to support a judgment must be deemed to have been found where both parties request direction of a verdict. Bowery Bank v. Gerety, 152 N. Y. 411. An order denying a motion for a new trial made in a criminal case upon the ground of newly-discovered evidence is not review- able in the Court of Appeals. People v. Trezsa, 128 N. Y. 529. Such an order is not reviewable in the Court of Appeals. Id. The right of appeal in criminal cases is statutory only. Id. Neither a writ of error nor certiorari before the abolishment of this remedy by the Code of Criminal Procedure, section 51Y, would bring up such order for review. Id. Where the action was one for an injunction, and the judgment in favor of defendant leaves plaintiff and his sureties liable upon the undertaking for a large amount, the Court of Appeals will not refuse to entertain the appeal. Williamhs v. Montgomery, 148 N. Y. 519. The Court of Appeals, as a general rule, deals with questions of law only, and it cannot review an exercise of the discretion of the General Term in criminal cases. People V. Most, 128 IST. Y. 108. The Court of Appeals cannot consider a question that the jury were prejudiced by offers of evidence persistently made by the prosecuting oflBcers and repeatedly overruled. Id. The only authority now existing for an appeal to the Court of Appeals in a special proceeding is Code Civ. Pro. § 190, subd. 3. Matter of. Southern Boulevard B. E. Co., 128 N. Y. 93. The orders mentioned in section 190, subdivision 2, are orders made in the action and affecting a substantial right. Id. 2170 Appeal, II. Appeal — Continued. The provisions of section 1361 of the Code do not apply to appeals to the Court of Appeals. Id. The right of a client to invoke the power of the court to compel his attorney to pay over money is in the discretion of the court and is not reviewable. Schell V. Mcuyor, etc., of N. Y., 128 N. Y. 67. The Court of Appeals cannot review an order where the ground of reversal by the General Term was not the want of power to grant the relief sought. Id. A reversal by the General Term which may have been made upon the facts, or may not, cannot be reviewed upon appeal. Williams v. Delaware, Lackamanna, etc., li. H. Co., 127 K Y. 643. In such a case the order is not appealable, unless it appears that the court passed on the facts unfavorably to appellant. Id. 2. What Questions Raised. The court is not authorized to look into the evidence for the pur- pose of reversing findings of fact and law to which no excep- tions are taken. Excelsior Brich Co. v. Village of HoAjerstram, 142 N". Y. 146. A reversal by the General Term that the finding of negligence by a court or referee is not justified by the evidence will not be interfered with by the Court of Appeals, when it can be fairly said that the finding was against the weight of evidence. Bloom V. Nat. United Benmt Savings cb Loan Co., 152 N. Y. 114. The Court of Appeals is at liberty to gather from the evidence any needed fact, such as could have been sustained if it had been actually found, in support of a referee's judgment. Ogden v. Alexamde-r, 140 N. Y. 356. In order to enable the Court of Appeals to review rulings of a referee in allowing particular items of damage, all the facts bearing upon the legality of the disputed items should be found or the questions presented by some specific request to find. Scott V. Haverstraw Clay & Brich Co., 135 IST. Y. 141. A case in which it will be deemed on appeal to the Court of Ap- peals that all the facts warranted by the evidence and neces- sary to support the judgment have been found. Trustees of Amherst College v. Eitch, 151 N. Y. 282. Upon appeal from an order of the General Term affirming surro- gate's decree settling accounts of executors, only questions of law can be considered. Matter of Bolton, 141 N. Y. 554. Questions of law only are raised in Court of Appeals where the General Term reverses a judgment on the exceptions, and af- firms on the facts an order denying a motion for a new trial on the minutes. Edgeoomb v. Buckhout, 146 JST. Y. 332. Appeal, II. 2171 Appeal — Continued. "What facts do not require an interference with a contrary finding by the Court of Appeals. Gohn V. Metropolitan Mevated By. Co., 136 N. Y. 646. Under the provisions of Code Criminal Procedure, authorizing the Court of Appeals in a capital case to grant a new trial whether exceptions were taken or not, the evidence given on the trial should be examined in the Court of Appeals in order to determine whether injustice had been done. People V. Waymann, 128 N. Y. 585. Upon an appeal to the Court of Appeals in proceedings to assess damages caused by the diversion of waters, only questions of law are brought up for review. Matter of_ TJwmpson, 127 N. Y. 463. The action of the trial judge in changing and resettling his find- ings after an appeal has been taken from the judgment entered thereon cannot be reviewed by the Court of Appeals on an appeal from the judgment, where such action is not embodied in any order of judgment. Bigelow v. Davol, 160 JST. Y. 327. An exception to a conclusion of law is not available on appeal, where the conclusion follows and is in accordance with the findings of fact, to which no exception was taken. Riendeau y. Bullock, 147 N. Y. 269. An exception to a ruling allowing a party to inquire of jurors whether the fact that his principal witness has served a term of imprisonment would prejudice them against believing him is not available on appeal. Carlson v. Winterson, 147 N. Y. 652. Where the order and judgment below are silent as to their grounds, its opinion cannot be considered by the Court of Ap- peals, as it is no part of the record. Randall v. JVew York El. B. B. Co., 149 JST. Y. 211. Usually statements in the opinions of the courts below cannot be considered by the Court of Appeals. Koehler v. Hughes, 148 IST. Y. 507. ISo fact can be considered by the Court of Appeals for the pur- pose of reversing a judgment unless it appears in the findings or was requested to be found on uncontroverted evidence. Id. "Where it is not shown that the verdict is against the weight of evidence or was influenced by mistake, error or prejudice, the determination of the jury on the question of insanity in a capital case wiU be regarded as conclusive by the Court of Appeals. People v. Hoch, 150 N. Y. 291. The power of the Court of Appeals to order new trials in capital cases, although no exception is taken, is not called into exercise by the appearance of some error in the conduct of the case, unless some substantial rights of the accused were affected bv it. Id. "When proof is defective which is capable of being supplied, and 2172 Appeal, II. Appeal — Continued. no question is raised on the trial, the court will assume that proof of the omitted fact was waived, or that the fact as to which the proof was defective was conceded. Bliss V. SwUes, 142 IST. Y. 647. Error in the admission of testimony of neighboring property- owners as to rents received for their property is not avail- able on appeal. Randall v. Ifew YorhEl. R. R. Co., 149 IST. T. 211. "When questions excluded upon objection, a ground for reversal considered. Stouter v. Momhattcm Ry. Co., 127 ~S. Y. 661. The introduction of a map of the accident which shows an addi- tion to the railroad tracks since accident is objectionable. Id. On appeal from an order of General Term disbarring an attorney, questions of fact arising on conflicting evidence cannot be re- viewed. Matter of Ryan, 143 IST. Y. 528. An appeal certified under section 190 of the Code brings up only the questions which were certified. Grannan v. Westchester Racing Asin, 153 N. Y. 449. A question certified by the Appellate Division should be a dis- tinct proposition of law. Id. The Court of Appeals has no jurisdiction to review the discretion of the court below. Shiels v. Wortmann, 126 IST. Y. 650. "What will not authorize the Court of Appeals to review an order. Id. The mere intimation of an opinion by the judge upon the evidence, or upon the merits of the case, or his comments upon the evi- dence, furnish no ground for a reversal in the Court of Appeals. Rurlhurt v. Hurlfmrt, 128 N. Y. 420. When the Court of Appeals can only review errors of law brought up on proper exceptions. Id. Where the General Term reverses an order, confirming the report of commissioners to appraise lands, the order of reversal stands. Matter of Southern Boulevard R. R. Co., 128 N. Y. 93. An order of reversal in the special proceeding was not appealable to the Court of Appeals. Id. Upon appeal to the Court of Appeals from an order of General Term affirming an order, quashing a writ of certiorari to review an assessment, the court will only review as questions of law any improper and illegal elements as a basis for such valuation. People ex rel. Western Union Tel. Go. v. Dolam,, 126 ^N". Y. 166. The determination of the General Term in such a case is an order, and the appeal from it wiU not lie from it to the Court of Arj- peals. Id. 3. Practice. Motion for a re-argument in the Court of Appeals made on the Appeal, II. 2173 Appeal — Continued. ground that there was an error in the record consisting of a misstatement of the finding of a referee, denied. Bv/rt V. Oneida Community, 138 E". Y. 649. "When the Court of Appeals will not grant a re-argument of an appeal determined in the Second Division of that court upon a question claimed to have been overlooked. PeopU V. Ballard, 136 N. Y. 639. The Court of Appeals may exercise the jurisdiction of the General Term upon motion for a new trial under section 1001 of the Code, after entry of an interlocutory judgment directed trial of an issue of fact by the court or a referee. Fischer v. Blam,h, 138 N. Y. 669. An appeal should be dismissed when a decision thereon could have no practical effect. Matter of Manning, 139 N. Y. 446. Where delay of a year in making a tender was not set up as a defense in the answer nor urged at the trialj held, that the Court of Appeals would assume it was explamable in a way not to defeat plaintiff's right of recovery. Duncan v. If. Y. Mut. Ins. Co., 138 IST. Y. 88. Upon appeal to the Court of Appeals from the entire rejection of a claim, the right to recover some sum must conclusively appear in order to raise a question of law, or there must have been some material and erroneous ruling adverse to the claim- ant, which prejudiced him in the prosecution of his case. Spencer v. State, 135 IST. Y. 619. The Court of Appeals will not pass upon the power of the legis- lature to enact a given statute unless it be necessary in order to determine questions in the record. Curtain v. Barton, 139 N. Y. 505. An exception cannot be made for the first time in the Court of Appeals. People v. Formosa, 131 jN". Y. 478. "When power of the Court of Appeals to order a new trial in capital cases will be exercised. People V. Constamtino, 153 N. Y. 24. An affirmance by the General Term of the finding as to whether a transaction was a sale of securities or a loan at usurious in- terest with collateral cannot be disturbed by the Court of Ap- peals. Standen v. Brown, 152 IST. Y. 128. The Court of Appeals has no power to set aside a verdict when contrary to evidence. Felsha v. N. Y. C. cfe R:R. R. E. Co., 152 N. Y. 339. "When two actions for penalties based upon alleged violation of two distinct ordinances are tried together upon the same evi- dence, and general judgment is rendered in each case, it is not the province of the Court of Appeals to separate what is legal from what is illegal. City of Buffalo v. N. Y, L. F. (6 W. P. P. Co., 152 N. Y. 276. 2174 Appeal, II. Appeal — Continued. The court will take cognizance only of exceptions appearing in the record. People v. Brooks, 131 K. Y. 321. Although exceptions may not have been taken in the court below, the Supreme Court may grant a new trial on a judgment against the weight of evidence, or against law. Id. Where the conviction on the trial for homicide was a lower grade than murder in the iirst degree, the Court of Appeals has not power to review the facts. PeoplSY. Zedwon, 153 N. Y. 10. The courts of this state will determine an action upon an ultra vires corporation contract of another state according to the law of this state. Bath Gas Light Co. v. Claffy, 151 1\. Y. 24. When the Court of Appeals cannot interfere with an award of the Court of Claims on the ground of insufficiency of the award. _ Slavin V. State, 152 N. Y. 45. On a certificate by the Appellate Division under section 190 of the Code of the question of law whether the Supreme Court has jurisdiction of the action of an injunction which it has refused to entertain, the Court of Appeals cannot determine whether the Supreme Court might in its discretion have declined to en- tertain jurisdiction. Da/vis v. Cornue, 151 N. Y. 172. When the Court of Appeals will not disturb a verdict of murder in the first degree. People v. Conroy, 153 N. Y. 174. The burden of showing that the decision of the Appellate Division was unanimous rests on the moving party, and he cannot base such proof on the opinion. Kapla/n v. New York Biscuit Co., 151 N. Y. 171. The Court of Appeals may require county clerk to furnish literal copies of stenographer's minutes taken in a capital case. People V. Conroy, 151 IS". Y. 543. In order to sustain a reversal by the General Term in the Court of Appeals of the decision of referee upon the facts, it must appear that his conclusions were erroneous. Barna/rd v. Gantz, 140 N". Y. 249. Motion for re-argument not allowed where counsel had order of General Term amended, stating that reversal was on the facts, after decision by the Court of Appeals. Cudahy v. Rhinehart, 133 IST. Y. 675. The findings of a referee upon conflicting evidence are not to be disturbed. Porter v. Bunn, 131 N. Y. 314. Upon an appeal from the judgment record alone where a partner- ship agreement was relied upon, the Court of Appeals could not, in the absence of a finding, assume that the general powers to be implied from the provisions set forth were regulated, limited or restricted by some subsequent provision in the agree- ment, in order to sustain the decision. Rumsey v. Briggs, 139 IST. Y. 323. Motion for a re-argument upon the ground that the opinion of the Appeal, II. 2175 Appeal — Continued. court declared certain securities to be valueless where the referee had refused so to find, and the expression would not conclude the party on a new trial, denied. Griggs v. Day, 137 JST. Y. 542. The court will look into the evidence to see if it supports a find- ing and not to reverse a judgment. Ostromder v. Eart, 130 N. Y. 406. An admission to find facts claimed by the unsuccessful party can only be taken advantage of by an exception to a refusal to find as requested. Id. An appeal to the Court of Appeals from a conviction in a capital case stays the judgment of death only. PeofU V. Trezza, 128 N. Y. 529. "When a motion for a re-argument will be granted by the Court of Appeals. Fosdick v. Town of Hempstead, 126 N. Y. 651. "When a motion for an affirmance or to dismiss an appeal to the Court of Appeals, on the ground that only the same questions are involved as have been recently passed on in other cases in the court, will not be granted, dlarh v. Clafiin, 128 N. Y. 610. Case when the decision of the Second Division of the Court of Appeals on the first appeal should stand as the law of the case on the second appeal, which was heard in the First Division of the court. Todd v. Union Dime Savings Inst., 128 N. Y. 636. Upon an appeal to the Court of Appeals, the cause must be heard upon the same record as that before the General Term. People V. Dewey, 128 N. Y. 606. The objection that the judgment appealed from is interlocutory may be raised and decided upon the main appeal. McEeown v. OJlcer, 127 K Y. 687. Case where an appellant will not be denied the right to withdraw his appeal to the Court of Appeals, and discontinue the litiga- tion. Hector, etc., of Holy Trinity Ch. v. Hector, etc., of Church of St. SU'ph&ns, 128 IST. Y. 604. The Court of Appeals, in exercising the jurisdiction conferred by Code Criminal Procedure (§ 528) in capital cases, is governed by the practice regulating the review of questions of fact upon ap- peal to the Supreme Court in such cases. Peo:pl6 V. Taylor, 138 IST. Y. 398. Single expressions in a charge in a criminal case cannot be sepa- rated from the context as if they were independent propositions. Id. Chapter 559, Laws 1896, approved May 12, 1896, amending sec- tion 191 of the Code so as to prohibit appeals to the Court of Appeals from judgments in actions for personal injuries where the decision of the Appellate Division was unanimous, will, in the absence of proof as to the hour of such approval, be pre- 2176 Appeal, II. Appeal — Vontinued. sumed to have taken effect at the commencement of the day of approval, and to bar an appeal from such a judgment entered on the afternoon of said day. Croveno v. Atlantic Ave. R. B. Co., 150 N. Y. 526. Where the evidence which appears to be in conflict is but a mere scintilla, or is met by well-known and scientific facts as to which there is no conflict, the Court of Appeals may reverse the decision of the General Term. Hudson V. E. W. db 0. R. R. Co., 145 N. Y. 408. The Court of Appeals has no power to weigh the evidence and determine its preponderance, but where there is a substantial failure of evidence to sustain the determination, it may review and reverse. People ex rel. Coyle v. MarUn, 142 N^ Y. 352. A party cannot insist that an original judgment entered upon the referee's report was correct on appeal to Court of Appeals where General Term modified the judgment and the party ac- cepted the modified judgment. Lamrence v. Church, 128 ]S". Y. 424. Held, also, that the privilege of suing again allowed to plaintiff was beyond the power of the court to grant. Id. Error cannot be founded on a refusal to find, unless it appears not only that evidence was given proving the fact, but also that it was uncontroverted. Koehler v. Hughes, 148 N. Y. 50Y. "Where the order of reversal by the General Term contains no statement to the contrary, the Court of Appeals must presume that the judgment was not reversed on any question of fact. Blashfield v. Empire State Telephone tfe Telegraph Co., 147 K Y. 520. The Court of Appeals, in reviewing the evidence in a capital case, is governed by the practice regulating appeals to the Supreme Court in dealing with questions of fact. People V. Loppy, 128 N. Y. 629. Usually the findings of the jury on disputed evidence must be taken as conclusive. Jd. The Court of Appeals cannot, in a capital case, disregard any valid exception taken by the defendant. People V. Corey, 148 IST. Y. 476. The rule that an error which did not prejudice the complaining party will be overlooked is only applicable when the error could by no possibility have produced injury. People V. Altman, 147 N. Y. 473. A question certified to the Court of Appeals can only be reviewed by it upon an appeal from the judgment or order which de- cided such questions. Banh of the Metropolis v. Faher, 150 N. Y. 200. On motion to dismiss an appeal to the Court of Appeals on the ground that the Appellate Division unanimously decided that Appeal, II. 2177 Appeal — Continued. there was evidence supporting the finds, the moving party should furnish the court with a copy of the record. Hutchinson v. Root, 153 N. Y. 239. So far as the facts found and questions determined are identical, the court will follow the decision of the Second Division. Mygatt v. Coe, 142 N. Y. 78. An application to compel an attorney to deliver over papers to his attorney should be made in the court of original jurisdiction. People ex rel. Hoffman v. Board of Education of New York, 141 N. Y. 86. "When a case is not entitled to a preference in the Court of Appeals under subdivision 4 of section 791 of the Code. Colton V. New York El. R. R. Co., 151 IST. Y. 266. Question not raised below is unavailable on appeal. Mair v. Flack, 141 IST. Y. 53. A certificate of the General Term that a reversal was upon " the ground stated in the opinion " is not a proper method of stating that it was on a question of fact. Matter of Zaudy, 148 K Y. 403. The amendment of 1896 to section 191 of the Code, prohibiting appeals to the Court of Appeals from a judgment of afiirmance in an action for personal injuries, where the decision of the Appellate Division was unanimous, applies to a judgment en- tered subsequent to the passage of such amendment, although the decision was rendered prior thereto. NiendorfY. Manhattan R. Co., 150 N. Y. 276. In order to raise the point in the Court of Appeals that the Gen- eral Term erroneously refused for want of power to review the facts, because a properly certified copy was not before it, the order should show a refusal. Dibble v. Dimmich, 143 N. Y. 549. 4. Remittitur. A motion for an amendment of a remittitur which was in effect a motion for a re-argument, denied. Genet v. Delaware & Hudson Canal Co., 137 IS". Y. 626. "Where after a remittitur had been sent down from the Court of Appeals, a motion for a re-argument was granted upon which the former decision was re-affirmed and a second remittitur sent down ordering the same as the first and granting costs in the Court of Appeals, the costs alloAved were those on the re- argument. Sweet V. Mowry, 138 IST. Y. 650. "Where the General Term reversed a conviction for larceny and discharged the defendant because of the insufficiency of the indictment, held, that the Court of Appeals on deciding that the indictment was sufficient should remand the cause without affirming the judgment of conviction. People V. Laurence, 137 N. Y. 517. 137 2178 Appeal, II. Appeal — Continued. Pendency of an appeal is not a bar to a motion in the trial court for a new- trial, and upon such motion production of the return on appeal is unnecessary. Henry v. Allen, 147 JST. Y. 346. 5. Granting or Refusing New Trial. Erroneous charge of trial judge in absence of plaintiil is error, available for reversal of the judgment without an exception. Wheeler v. Sweet, 137 K Y. 435. "What question may be reviewed by the Court of Appeals either upon the appeal "from the order refusing to grant a new trial under section 190, subdivision 2 of the Code, or upon the ap- peal from the judgment. ^d- When the Court of Appeals will not grant a new trial in a capi- tal case for errors in ruling. People v. Youngs, 151 N. Y. 210. Granting of new trial indicates that proof might be given which would raise a disputed question. People v. Kane, 142 N. Y. 360. "When judgment involving the validity of a will will not be re- versed for error in the admission of evidence. Pel^ie V. Petrie, 126 N. Y. 683. "When it is apparent that no harm resulted to defendant because of admission of incompetent evidence, no ground for reversal in a capital case exists. People v. Bv/rgess, 153 N. Y. 561. The summoning of trial jurors by mail is not prejudicial to de- fendant when all jurors qualified to sit appear. Id. Under the provision of Code Criminal Procedure (§ 542), incom- petent evidence upon a collateral issue, which could not have had an important effect upon the result, affords no ground for reversal. People v. Waymann, 128 N. Y. 585. Under Code Criminal Procedure (§ 542), where error appears at trial, judgment of conviction must be reversed. People V. Wood, 126 N. Y. 249. "When questions of fact, unless properly raised, are not reviewable at General Term ; and where the General Term has reversed the judgment upon an appeal from the judgment only, its de- cision cannot be sustained in the Court of Appeals upon the ground that the verdict was against the weight of evidence. Peil V. Reinhart, 127 N. Y. 381. "When Court of Appeals will not reverse a conviction in a criminal case upon an objection to the power of the court to permit a peremptory challenge to be interposed. People V. Hughes, 137 IST. Y. 29. Objection that the record does not show the entry of a judgment is not available to the appellant as a ground for reversal in criminal cases. Id. "When Court of Appeals, upon the review of a judgment in a capital case, will not disturb a verdict reached upon conflicting evidence. People v. Sliney, 137 N. Y. 570. Appeal, II, 2179 Appeal — Continued. Eefusal to find that easements taken had in themselves only a nominal value is not ground for reversal. Cook V. New York M. E. B. Co., 144 N. Y. 115. When judgment will be reversed to enable the plaintiff to recover damages which by mistake he failed to prove. Thomson-Houston Electric Co. v. l)urant Land Imjp. Co., 144 Is". Y. 34. Error in refusing to find that a landing was established by ad- verse possession is ground for reversal. Iselin V. Starin, 144 IST. Y. 453. Even though some material and legal error was committed on a trial for murder, a new trial will not be granted in the absence of exceptions thereto, unless the record shows that the ends of justice require it. People V. Leonards 143 IS". Y. 360. Where the charge concerning the question as to Avhat constituted an excuse might have injuriously affected the minds of the jurors on the question of intent necessary to constitute a crime was erroneous, a general verdict of conviction should be set aside. Ld. A judgment will not be reversed because the trial court drew, from facts properly in the case for other purposes, an erroneous legal conclusion as to a question not necessarily in the case. Knoch V. Yon Bernuth, 145 N. Y. 643. An exception to a single wrong sentence in a charge is not suf- ficient for reversal. Randall v. Packard, 142 N. Y. 47. The admission of evidence which is a mere mathematical calcula- tion, which the court or judge could make for himself, is not ground for reversal. Witmark v. New York El. R. R. Co., 149 N. Y. 393. A judgment will not be reversed for a technical error in the ad- mission of evidence which did not affect the result. Matter of Bernsee, 141 N. Y. 389. The admission of evidence as to the value of shade trees destroyed is not ground for reversal where the objection thereto was not put on the ground that it did not present the proper measure of damage, and there is competent evidence on that question. Evams v. Keystone Gas Co., 148 N. Y. 112. The rejection of a juror in a criminal case upon the ground of his possible infamiliarity with the language and of general incom- petency is not sufficient ground for reversing a conviction. People V. Spiegel, 143 N. Y. 107. The fact that incompetent evidence has been admitted to which the attention of the trial judge was not called, of itself affords no ground for disturbing the judgment. Id. Error cannot be charged to a ruling upon a challenge to a juror where the defendant afterward peremptorily challenges such 2180 Appeal, II — Assault and Battery. Appeal — Continued. juror, and when the panel is full there remain jjeremptory chal- lenges unused. People v. La/rubia, 140 E". Y. 8T. It seems that the ruling would be open to review if the defendant had refrained from exercising his right of peremptory challenge, although such right has not been exhausted. M. Appearance ; See Practice. Application of Payments ; See Payments, II. Appurtenances ; See Deeds. Arbitration and Award. If an award does' not appear upon its face to be definite and final, and does not in itself contain the data or means of working out a definite and final determination of the whole controversy sub- mitted, the powers conferred upon the arbitrators have not been fully executed. Rerbst v. Hagenaers, 137 IST. Y. 290. Upon delivery of an award, the arbitrators hecome fvm^tus officio and without any power to alter or modify it. Id. Where a motion to confirm is based upon both the original and supplemental awards it cannot be granted. Id. It seems, that if an award fixes the rights of the parties subject to a mere matter of computation from books or documents equally accessible to both parties or in possession of the court, it might be held sufficient. Id. On an arbitration of claims, prior to settlements between the Earties, which neither asks to have opened, cannot be disturbed y proof of unsettled claims of third parties arising out of transactions included in such settlements, and a refusal to hear such proof is proper. Elbert v. Raebler, 149 N. Y. 343. The mere computation of his claim by one of the parties after the evidence has been closed is not new evidence, and furnishes no ground for setting the award aside. Id. Arrest ; See Rail ; Criminal Law / False Imprisonment ; Mecog- niza/nce. In order to authorize the enforcement of a judgment against the person, the complaint need not allege a conclusion of law. Moffatt V. Fulton, 132 IST. Y. 507. In an action or a judgment recovered in another state for false representations, an order of arrest of the judgment debtor may properly be granted. Leach v. Linde, 142 N. Y. 628. Arson; See Criminal Law. Assault and Battery ; See Criminal Law. Assessments — Assignments. 21 81 Assessments ; See Mvnioipal Corporations ; Taxation. Assignments ; 8ee Orders for Money. An order payable out of a certain fund specified in the order operates as an assignment pro tanto of such fund. St&vens V. Ogden, 130 N. Y. 182. An assignment of all the assignor's interest, under the will of a testator, by the terms of which she is entitled to a fraction of his estate, will pass a share in the estate of the testator's father which was vested in him at the time of his death. Sanders v. SoutUr, 136 N. Y. 97. "Where an assignment is accompanied by the execution of a de- feasance limiting its effect to the secunng of a specified sum, a subsequent assignment by the assignee of his right, title and interest will only vest an interest to the extent of the sum so secured. Id. Payment of money to stop litigation by an insolvent does not conclusively establish the validity of claim. Beram. v. Tradesmen's Nat. Bh., IST N. Y. 450. The implied engagement on the part of a banker to pay the checks of his depositor does not inure to the benefit of the holder of a check so as to enable him to enforce payment thereon against the bank prior to its acceptance. First Nat. Bk. v. GlarTc, 134 N. Y. 368. Nor will the delivery of the check with the banker's deposit slip have the effect of an assignment. Id. An executor's commission before they are ascertained and liqui- dated are unassignable. Matter ofWorthmgton, 141 N. Y. 9. An assignment of a contract with the United States is valid as between the parties and vests the assignees as against the con- tractor and his creditors who had notice of the assignment with the right of subsequent payments for goods produced by them. Matter of Home, 153 JST. Y. 522. An order by a contractor directing the owner to pay a sum speci- fied to a materialman and deduct same from amount of con- tract, operates as an equitable assignment. Crouch V. Muller, 141 IST. Y. 495. But an action cannot be maintained thereon against the owner who . has paid over the money in the absence of notice of assignment. ' Id. Presenting the paper to owner who did not understand the lan- guage in which it was written, and incorrectly stating its con- tents to him, is not sufficient notice. Id. "When an assignment of a patent includes future inventions in the line of manufacturing the same article. Allison Brothers Co. v. Allison, 144 N. Y. 21. An assignment of a patent and " any improvements on the same 2182 Assignments — Assignment foe Benefit of Ceeditoks. Assignments — Continued. which may hereafter be made " does not cover a subsequent independent invention. J^d- As between different assignees of a chose in action by express assignment from the same person, the one prior in point of time will be protected, though he has given no notice to the subsequent assignee or the debtor. Fortunate v. Pattern, 147 IST. Y. 277. A junior assignee of moneys to become due under a municipal contract cannot avail himself of a provision of the contract for- bidding the assignment, without the consent of the city, of the contract, or of moneys to become due under it, and providing that in the absence or such consent no claim shall be asserted against the city, to attack the priority of a senior assignee to such moneys, where they have been paid into court by the city. Id. An assignee of moneys to become due under a contragl; does not waive his rights by accepting a second assignment as additional security and leasing a portion of the moneys. Id. Chapter 248, Laws 1879, making all policies of insurance on the lives of husbands for the benefit of their wives assignable by the wife with the consent of the husband, applies to policies issued by foreign insurance companies and held within this state. Spencer v. Myers, 150 N. Y. 269. Where such assignment was made in the usual course of business to secure an honest debt, the assignee may, after the govern- ment has paid a claimant, enforce his rights thereunder against him or those who take with notice. YorTi V. Conde, 147 IST. Y. 486. "Where a policy of insurance is assigned by a qualified assignment, " as interest may appear " under an agreement that the assignee shall support the insured and receive the sums so advanced out of the proceeds of the policy, a neglect by the assignee to con- tinue such support and an absolute assignment of the policy by him to another will authorize the maintenance of an action by the insured to redeem and for a re-assignment of the policy. Bohleber v. Waelden, 150 N. Y. 405. An assignment of a contract for the sale of hemlock bark on certain land transfers title only to the bark. Sehoonmaher v. Hoyt, 148 N. Y. 425. Assignment for Benefit of Creditors ; See Bankruptcy ; Fraudu- lent Gowoeyances ; Insolvency. I. !N"attjee and Consteuction. II. Validity. III. Powers and Liabilities of Assignee. IV. KiGHTS of Ceeditoes. Assignment for Benefit of Creditors, I. 2183 Assignment for Benefit of Creditors — Continued. I. NATUEE AND CONSTEUCTION. A creditor who has persuaded assignor to complete a contract is not estopped from maintaining an action to set the assignment aside. Groves v. Bice, 148 N. Y. 227. A creditor cannot procure the completion of a contract in order to pay assignee therefor, in order to secure a preference. Id. The preference of wages under the amendment of 1886 is in no way changed because assignor had given his note to the employe. Matter of Scott, 148 N. Y. 688. An assignment for creditors providing for payment of the assignor's debts then " due or to grow due " does not cover a contingent liability for a possible deficiency in rent of premises relet by lessors after assignee vacates. Matter of Hevenor, 144 N. Y. 2Y1. Where no general assignment is executed by the debtor, a transfer of property to secure creditors, followed by similar transfers to other creditors, on the "following day, of the remainder of the debtor's property, cannot be considered as a violation of the General Assignment Act. Maas v. Folk, 146 N. Y. 34. The inventory must be read in connection with the assignment in respect to the matters which it is required to contain. Eoberts & Co. v. Victor, 130 N. Y. 585. Neither the assignee nor a creditor under the assignment can question the validity of the items preferred. Id. The preference of a creditor must be made in good faith to sustain the assignment. Id. An assignor is presumed to have intended the consequences of his own act. Id. If the assignment is fraudulent in part, the whole instrument is void. Id. The provisions of statute that the trust for the benefit of creditors shall be deemed discharged at the end of twenty-five years, and the estate revert to the grantor unless otherwise conveyed, apply to personal as well as to real property. Mills V. Husson, 140 IST. Y. 99. The amendment of 1886 to the General Assignment Act includes wages due at the time of the assignment to former employes. Matter of ScoU, 14^ N. Y. 588. The amendment, however, is not retroactive. Id. The main purpose of the statute is to identify the assignor. Dutchess Co. Mut. Ins. Co. v. Wagonen, 132 IST. Y. 398. "When an action by all the creditors alike to set aside transfers made by the debtor may be brought. Spellman v. Freedman, 130 N. Y. 421. Yacating an assignment for fraud renders its void ab initio. Smith V. Wise, 132 IST. Y. 172. . A creditor's action to set aside a general assignment cannot pro- 2184 Assignment for Benefit op Creditoes, I, II. Assignment for Benefit of Creditors — Continued. ceed after the death of assignor, unless his personal represent- ative is made a party. First ISat. Bh. of Amsterdam v. Shuler, 153 IST. Y. 163. The restriction in section 30 includes a judgment by confession upon the eve of the assignment, and in completion thereof. Berger v. Yarrelmcmn, 127 N. Y. 281. What the judgment in a creditor's suit may contain. Id. II. VALIDITY. What transfer of all the property of an insolvent debtor is not within the statute prohibiting preferences in excess of one-third. Tompkins v. Hunter, 149 E". Y. 117. Section 3347, United States Eevised Statutes, was intended for the protection of the government and does not invalidate a hona fide assignment before allowance of a claim against the government as between the parties thereto. York V. Conde, 147 K Y. 486. A direction in an assignment for the payment of a debt at a greater amount than is due will not invalidate the assignment unless fraud is shown. Roberts <& Go. v. Buckley, 145 N". Y. 215. The fact that a debt is magnified in the inventory does not make it fictitious. _ Id. The County Court has power to amend the schedules and inventory nunc pro tunc. Id. When an assignment for creditors by a co-partner is not avoided by the preference of a debt due by the firm, although there has been a change in ih^personnel of the firm since it was contracted. Peyser v. Meyers, 135 E". Y. 599. The preference in a firm assignment of a note given to a former partner, to represent the amount of an indebtedness of the old firm to a third person which the new partnership assumed to pay, is not the preference of a fictitious debt and will not avoid the assignment. Smith v. Smith, 136 N. Y. 313. The intentional withholding of assets from the assignee renders the assignment void. Coursey v. Morton, 132 N. Y. 556. Subsequent payment of money previously withdrawn does not validate an assignment. Id. Transfer to general assignee by debtor, of goods covered by chattel mortgage void for want of refiling, authorized assignee to recover goods from sheriff . Bowdishv. Page, 153 E". Y. 104. An assignee cannot impair the interests of his cestuis que trustent by the prosecution of a remedy of which he has knowledge. Id. Unless purchaser has previous notice of fraud a sale of real estate by an assignee is valid, as against general creditors. Wilson V. Marion, 147 E. Y. 589. Constructive notice of the fraud cannot be charged to such pur- chaser. Id. Assignment foe Benefit of Creditobs — ^Associations. 2185 Assignment for Benefit of Creditors — Continued. An assignment for creditors is not rendered invalid by reason of the fact that it transfers to the assignee property subject to the payment of a chattel mortgage which has not been filed. Kitchen v. Lowery, 127 JST. Y. 53. A general assignment executed in this state for benefit of creditors by an insolvent foreign corporation, where such assignment is permitted by the law of its domicile, will be recognized as valid here so far as it affects property within this state. Ycmderpoel v. German, 140 N. T. 563. The statutory provisions prohibiting a corporation from making any transfer or assignment in contemplation of insolvency- refers solely to domestic corporations. Id. Such assignment is properly executed by the president and secre- tary or treasurer, under the authority of board of directors, in the absence of contrary statutory provisions. Id. III. POWEKS AKD LIABILITIES OF ASSIGNEE. In an action to set aside a fraudulent assignment, refusal to allow disbursements by the assignee was proper. Smith V. Wise, 132 N. Y. 172. Allowances for services prior to the assignment and for necessary labor upon stock after assignment may be made. Id. A sum may be paid to a creditor who was preferred next after the worlonen. Id. The mere act of depositing funds in his individual name is not per se such an appropriation by an assignee as to charge him with legal rate of interest. Matter ofBa/rnes, 140 N. Y. 468. It is error to charge assignee upon accounting with a sum col- lected by his attorney as costs of an action to set aside the assignment, where the sum allowed was intended to be in addi- tion to the costs collected. Id. IV. EIGHTS OF CKEDITOES. Pending the accounting by the assignee one of the assignors died, but it not appearing that he had any individual estate, held, that the accounting should not be suspended to bring in his personal representatives. Pope V. Briggs, appeal dismissed in 137 N. Y. 631. Claims against the firm have preference over individual claims. Booss V. Marion, 129 K Y. 536. Associations ; See Benevolent Associations : Joint Stock Com- panies ; Partnership ; BeUgious Associations. Pevocation of charter does not destrov property rights against others. Wells y". Monihan, 129 N. Y. 161. 2186 Associations. Associations — Continued. A voluntary unincorporated association cannot be divested of its title to property by the general assembly. Wicks V. Monihan, 130 N. Y. 232. Its officers may recover an indebtedness due it after annulment of charter. J^d. An action cannot be maintained against an unincorporated asso- ciation unless the debt is one for which the members might be jointly or severally liable. McCabe v. Goodfellow, 133 N. Y. 89. The authority to create individual liability will not be presumed. Id. A member pledging a specific sum is not liable for any amount in excess of nis contribution. McCabe v. Goodfellow, 133 IST. Y. 89. When person by his own act severed his connection with the association, is estopped from demanding a settlement for his services by his declaration to that effect on leaving. Burt V. Oneida Comrmmily, 137 N. Y. 346. When a by-law of a news association, which prevents its members from receiving or publishing news received from another like association covering a like territory, is valid. Matthews v. Associated Press of N. Y., 136 K Y. 333. Where the provisions of the Constitution give the executive com- mittee of an association power to arrange ground rents and other privileges, they may prescribe regulations for the vending of merchandise. Round Lake Assoc, v. Kellogg, 141 N. Y. 348. Kules providing that goods and merchandise shall not be sold on any of the lots leased by the association without a license being first obtained are reasonable, and will be enforced by the courts. Id. The board of managers has power to discipline for an unjust con- tract made outside of the Exchange. Matter of Hauler v. Ifew YorTc Produce Exchanqe, 149 KY.414. By-law 32 of the Produce Exchange is not unreasonable. Id. An offer to arbitrate before a person not a member of the Prod- uce Exchange is not a compliance with by-law 32. Id. Vested rights of property cannot be affected by the suspension of a member of the Produce Exchange. Id. For what offences the board of managers of the Produce Ex- change may expel members. People ex rel. John v. Produce Exchange, 149 N. Y. 401. What complaint is sufficient to give the board of managers juris- diction of the proceedings. Id. The board of managers of the Produce Exchange may discipline members for any unjust and inequitable breach of contract. Matter of ilaebler v. I^ew York Produce Exchamqe, 149 N. Y. 414. Assumpsit — Attachment, I. II. 2187 Assumpsit; See Contracts; Goods Sold ; Money Had; Money Paid; Work, Labor, etc. Attachment; See Contempt. I. When Allowed. II. Practice, Affidavit and Undeetaking. III. The Waeeant and its Effect. lY. Motion to Vacate. I. WHEN ALLOWED. Money in the hands of an assignee for creditors, proceeds of sale of the assigned property, cannot be attached. McAllaster v. BaOey, 127 N. Y. 583. The amendment of 1894 to section 636 of the Code is confined to the creditor defrauded. Penoyer v. Kelsey, 150 !R. Y. 77. An attachment may be granted in an action of conversion brought by an administrator with the will annexed against the executor who was removed. Van Camp v. Searle, 147 IST. Y. 150. The general rule that an assignment for creditors executed in another state would vest title in the assignee to funds in this state, superior to an attachment subsequently issued here, is subject to exception where the law of the other state is in the nature of a local bankrupt law. Ba/rth v. Bachus, 140 N. Y. 230. In such case the attachment issued in this state creates a lien superior to the title of the assignee, even though the attaching creditor be domiciled in the same state as the insolvent. Id. To authorize an attachment under subdivision % of section 636 of the Code there must be actual or intended fraud upon creditors. Casola V. Vasquez, 147 ]N". Y. 258. The transfer of property in payment of an honest debt by a foreign limited partnership, while insolvent, in violation of the statute of the state of its organization making such payment a fraud on creditors, will not authorize an attachment. Id. The res must be within the jurisdiction of the court issuing the process. Douglass v. Phoenix Ins. Co., 138 N". Y. 209. The interest of a grantor after mortgage has been executed is liable to attachment. Maoauley v. Smith, 132 JST. Y. 524. The interest of a vendee in possession of real estate is subject to attachment. Higgvns v. C Cormell, 130 IS.. Y. 482. II. PEACTICE, AFFIDAYIT AND UNDEETAKING. An affidavit for an attachment, which is made by plaintiff's attorney upon information and belief, and stating that the means wj which aflfiant derived his information were a con- versation with plaintiff through a long-distance telephone, is in- sufficient to support the attachment where it does not state that 2188 Attachment, II, III. Attachment — Continued. affiant recognized plaintiff's voice, or show that he knew it was the plaintiff who was speaking to him. Murphy V. Jack, 142 N. Y. 215. An affidavit made by an agent or attorney of the attaching cred- itor averring the facts required, stating the source of his infor- mation and grounds of his beUef , is sufficient to confer jurisdic- tion to grant the attachment. Id. " Eight to reduce " within section 1690, subdivision 3 of Code construed and applied. Wise v. Gramt, 140 15. Y. 593. Taking possession of stock in satisfaction of debt will defeat a subsequent attachment. Flcmnery v. Van, Tassell, 131 N. Y. 639. An attachment cannot be served upon the attorney who procured a judgment ; must be served on the owner thereof. Flandrow v. Eammiond, 148 N. Y. 129. Section 655, subdivision 2 of the Code requires service of the summons without the state or by publication, and that the de- fendant has made default. mvitney v. Da/vis, 148 N. Y. 256. Upon attachment of property not capable of manual delivery, the person served must look to the notice alone to ascertain what property is attached and must base his action upon that. Hayden v. I^at. Bcmh of N. Y., 130 IST. Y. 146. The knowledge as to the property to be attached must be derived from the notice. Id. Unless there is a substantial compliance with the statute, title to the property is not divested and the holder remains liable. Id. Service of a warrant against one member upon an officer of the bank does not reach funds belonging to the firm. Id. Creditors filing an indemnity have preference over others in the avails of attached property. Cudahy v. RhmehcMft, 133 K Y. 248. in. THE "WAEEANT AND ITS EFFECT. A person who has obtained a lien by virtue of an attachment in other states, in violation of a decree appointing a receiver, cannot assert his lien in a court of equity. Farmers' Loam, <& Trust Co., v. Bankers da Merchants' Tel. Co., 148 IS. Y. 315. The withdrawal of an execution prior to the sale does not affect the lien of the attachment issued. Yam Camip v. 8ea/rle,_ 147 IST. Y. 150. Successive attachments on real property have priority of lien in the order of their issue and levy. Id. "Where an insufficient levy is made under a first attachment, the levies made under the junior attachment will, after judgment, inure to the benefit of the first attaching creditor. Gillifj V. George C. Treadwdl Co., 148 K Y. 177. Attachment, III, IV — Attorney. 2189 Attachment — Continued. Section 638 of the Code requires a regular formal service of tlie attachment. Kieley v. Oenfral Complete OombusUon Mfg. Co., HI N. Y. 620. A summons cannot be served on a person in charge of the prop- erty attached. Ja. A warrant of attachment reciting the grounds therefor in the alternative is defective. Cronen v. Crooks, 153 N. Y. 352. IV. MOTIOIf TO VACATE. Where the summons is served on one of several defendants within the time prescribed, and no service is made or publication com- menced against the others, an attachment against their joint property cannot be vacated for that reason. Terhes v. McFaMen, 141 N. Y. 136. The attachment and the lien continue, and where judgment is obtained on the joint liability, the joint property seized may be sold. Id. Attorney ; See Cha/mperty and Madntenmioe ; Witness. An agreement to set aside the attorney's share for prosecution of a claim operates as an equitable assignment of an interest in the subject of litigation. Holmes v. JSvans, 129 1^. Y. 140. Voluntary withdrawal of the attorneys operates as a forfeiture of their rights. Id. An attorney's lien does not prevent a party from settling a judg- ment, suit or controversy. I^oole v. Belcha, 131 N. Y. 200. Until the lien of the attorney is asserted in some way, the judg- ment remains the property of the client. Id. It must be shown that the release will defraud the attorney, to warrant the court in setting it aside. Id. When testimony of general counsel of a woman for several years is subjected to disbelief when in conflict with her testimony. Palmer v. Oould, 144 IS. Y. 671. Communications made to a friend, or to an attorney in the pres- ence of a friend, are not privileged under section 835 of the Code. People v. Buchanam, 145 IST. Y. 1. What is a proper use of forms of law in criminal case, considered. People V. Jugigo, 128 N. Y. 589. Application of law student for leave to file a regent's certificate of examination Ti/wnc pro tunc, denied. Matter of Mason, 140 N. Y. 658. It is the duty of the court to punish an attorney who has been shown guilty of unprofessional misconduct. Matter of Byam, 143 K Y. 528. Substitution of an attorney by order of the court below, after the return has been filed in "the Court of Appeals, is irregular, and 2190 Attorney. Attorney — Continued. such order should be made only by the highest court ; where there was no question as to his authority to be substituted, the court will act upon a motion by him to dismiss the appeal. Squwe T. McDonaU, 138 N. T, 554. A recovery in attorney's action for services reversed where it appeared from the evidence that the plaintiff neither rendered the service he was employed to do, nor made any special prep- aration for its performance. Thorn v. Beard, 135 N. Y. 643. The employment of an attorney in an action under an agreement that he shall receive his compensation out of the proceeds, gives him an equitable lien on, or ownership as equitable assignee in them. Ha/rwood, v. LaOrcmge, 137 E". Y. 538. But if the agreement does not fix any sum or rate, he is bound, in an action to recover compensation, to establish by evidence competent against his client the value of his services. Id. Although the court may, upon motion, vacate the satisfaction of a judgment by the client m fraud of the rights of his attorney, it cannot in such proceeding fix an amount in excess of the taxed costs as a counsel fee. Bwiley v. Mv/rphey, 136 N. T. 50. A client remains the lawful owner of the cause of action, and the lien of the attorney should not be exercised to prevent settle- ment of cause if client is willing to pay the attorney. Lee V. Vacuum Oil Co., 126 N. Y. 579. When attorneys have no ground for attacking a settlement which resulted in deposit of sum for purposes of meeting their claim. Id. How moneys obtained on a settlement in disregard of the lien of plaintiff's attorneys may be followed and the lien of the at- torneys satisfied therefrom. Peri V. N. Y. G. (& H. R. E. R. Co., 152 IST. Y. 521. The power of Appellate Division to disbar an attorney, consid- ered. Rochester Bar Ass'n v. Dorthy, 152 N. Y. 596. Counsel have no right to appeal in a capital case solely for the i)urpose of delay. People v. Scott, 153 E". Y. 40. "Wiien the relation of attorney and client is dissolved by the assignment of the rights of the client to a corporation. Foster v. Bookwalter, 152 N". Y. 166. Protection of the lien of an attorney under section 66 of the Code, considered. PeriY. JST. Y. C. o& R. R. R. R. Co., 152 IST. Y. 521. In the absence of an agreement an attorney deserves compensa- tion according to the reasonable worth of his services, of which the jury are the sole judges. Randall v. Packa/rd, 142 E. Y. 47. After costs have been collected by an attorney, his lien upon them has been reduced to possession, and in the absence of a special agreement the client cannot insist upon their payment to him. Matter of Barries, 140 N. Y. 468. Attorney — Bailments. 2191 Attorney — Continued. The lien of an attorney under an agreement to procure an in- crease in the award for lands taken for a public street for a share of the increase so obtained is subordinate to a mortgage upon the property. Gates v. De La Mare, 142 E". Y. 307. Attorney-General. Malversations by trustees cannot be subject of an action in the name of the people at the instance of the attorney-general. People V. Simonson, 126 N. Y. 299. Auctions and Auctioneers. Since 1868 there has been no statute of this state which provides for the payment of duties or fees upon sales of merchandise at auction. ' People v. Wild&rming, 136 N. Y. 363. Under the provision of the JSTew York Consolidation Act, the mayor may license an auctioneer, and such power is discretionary and cannot be reviewed by courts. People ex rel. 8chwab v. Orant, 126 N. Y. 473. Authentication of Records ; See Deeds ; Evidence. Awards; See Arbitration and Awa/rd \ Cam,als ', Erm/nent Dommn. B, Baggage ; See Ca/rriers ; PadJ/roads. Bail ; See Arrest y Recognizance ; Sheriff. "When mortgage is one of indemnity only, it cannot be foreclosed until the mortgagee has paid the amount of the bail bond. Moloney v. Nelson, 144 N. Y. 182. Supplementary proceedings may be based upon an execution issued upon a judgment entered on forfeiture of a recognizance. People V. Cowam,, 146 K. Y. 348. Bailments ; See Oa/rriers / Factors ; Pledge / Wa/rehousemen. Where a certificate of stock was placed in the hands of defendant as bailee until work should be done by contractors, who never completed their contract, the fact that the bailee might be sub- jected to an action at the instance of the contractors was no defense to an action brought by the bailor for redelivery. Equity Gas Light Co. v. McKeige, 139 N. Y. 237. While a bailor charging negligence against the bailee rests under the burden of proof, proof of the nature of the_ accident may afford prima facie proof of negligence and shift the burden upon the bailee. Witringham v. JIayes, 144 N. Y. 1. 2192 Bailments— Banks and Banking, I. Bailments — Continued. Proof which makes out ^jprvma facie case calling for evidence to rebut the presumption of negligence. ■^<*' In an action involving the question of the negligence of a bailee, testimony of an expert as to whether the injuries to the subject of the bailment were the result of ordinary wear and tear is competent. -"^• The proprietor of a factory who receives milk to manufacture from it butter and cheese, is a bailee-, and is bound to exercise ordinary care for the protection and preservation of the prop- erty, and is liable for the proper discharge of his dutv. Stewa/rt v. Stone, 127 1^. Y. 500. Bankruptcy ; See Discharge. Case in which held, that fraud in procuring the discharge of bank- rupt was not established. Grouse v. Whittlesey, affirmed without opinion, 138 N. Y. 615. The limitations of two years prescribed by section 5057, United States Revised Statutes, in actions by or against an assignee in bankruptcy, applied only to disputes which existed at the time of the bankruptcv. B"owen v. D., L. & W. B. R. Co., 153 N. Y. 476. Banks and Banking ; See Corporations ; NaUonal Ba/riks. I. Banking Coepoeations. II. Banking Business. I. BANKING COEPOEATIONS. The directors of the bank cannot anticipate an action to dissolve a bank after the superintendent of banks has taken possession of the assets. Matter of Mv/rray Hill Bh, 153 N. Y. 199. An action by the directors of a banking corporation for the volun- tary dissolution abates upon the entry of judgment of the dis- solution. M. An agreement by a member of the New York Clearing House Association to clear for an outside bank is subject to rule 25 of the association. O^Brien v. Gramt, 146 N. Y. 163. Payments made by the clearing bank in good faith on the day following the insolvency of the bank for which it clears, and the use by it of securities deposited in reimbursement of such payments, do not constitute an illegal preference within the meaning of section 48 of the Stock Corporation Law. Id. Section 52 of the Banking Law is not unconstitutional as to stock- holders who became such prior to its passage. Hirsohfield v. Bom>, 145 N. Y. 84. The liability imposed upon stockholders in banks by section 62 Banks and Banking, I, II. 2193 Banks and Banking— Continued. of the Banking Law is limited by section 55 of the Stock Cor- poration Law. Id. The complaint in an action to enforce the liability of the stock- holder of a bank under section 52 of the Banking Law must allege facts showing that such liability is within the limitations imposed by section 55 of the Stock Corporation Law. Id. The complaint in such an action need not allege that the defend- ant became a stockholder after the passage of the act. Id. It will not be inferred in a mere appointment of a temporary receiver in an action by the superintendent of the banking de- partment that the bank is insolvent. SicMecm v. fferold, 149 N. Y. 332. A counter-claim for deposits in an action against a director upon a note entitles the defendant to interest from date of service of the answer. Id. II. BANKING BUSINESS. "When a bank will not be charged with conversion. GasUe v. Corn Exeham.ge BamJc, 148 N. Y. 122. A bank holding check for collection acts as agent for another bank sending the check. Castle V. Corn Exchamge Bank, 148 N. Y. 122. "What circumstances allow a bank to obtain lien of funds of a third party deposited by a broker. Hutchinson v. Prest., etc., Mamhattam.' Co., 150 N. Y. 250. A bank, which in good faith received a check from a depositor, who obtained the same by an unlawful pledge of the securities of another, and has applied the same, is not liable to refund the amount. Hatch V. Fourth Nat. Bk. of N. Y., 147 N. Y. 184. Where the officers of a bank, with knowledge of its insolvency, receive on deposit the check of the depositor on another bank, the transferee of such check cannot recover thereon against the maker without proof that he is a honafide holder. Oramt v. Walsh, 145 N. Y. 502. Where the defense to an action upon a check by a transferee thereof from a bank in which it was deposited by the maker is fraud on the part of such bank in receiving the deposit when insolvent, evidence of knowledge of such insolvency by officers and transferee of note is competent. ' ' Id. Although a customer is a note broker, a bank may assume that notes offered him are offered in good faith and within his law- ful rights. American Exchamge Nat. Bk. v. New York Belting cfe Packvng Corwpany, 148 N. Y. 698. A director, also agent, who procures an indorsement on condition 138 2194 Banks and Banking, II — Bar. Banks and Banking — Continued. that another indorsement shall be obtained, makes the bank chargeable with notice of non-fulfillment of condition. Twenty-Sixth Ward Ba/iik v. Stearns, 148 N. Y. 515. "When a bank, having taken the ordinary steps in carrying out a convenient mode of collecting a demand, and there being no question of holding other parties than the drawee, is not liable to drawer for negligence m collection. Grouse v. Fw-st Nat. Bl. of Penn Tarni, 131 IST. T. 383. "Where a cashier, having authority to draw upon the bank's corre- spondents, draws checks to the order of persons without their knowledge, and indorses them to others for his own use, his indorsement estops his bank. PUlUps V. Mercantile Nat. Banh, 140 IST. Y. 656. The fictitiousness of the maker's direction to pay does not de- pend upon the identification of the payee's name with some existent person, but upon the intention underlying the maker's act. Id. "When payee named in a certificate of deposit, which is a negotiable instrument, who has not possession of such certificate, and who confesses his inability to surrender it on receiving payment, cannot recover thereon against the bank which issued it. Read v. Marine Bh. of Buffalo, 136 N. Y. 454. The provisions of Code Civil Procedure (§ 1917), authorizing a re- covery upon lost negotiable paper upon giving indemnity, will not sustain such action when the instrument is not lost. Id. Bar ; See Est(yppel ; Adjudication ; Judgments. A valid judgment, regularly obtained by the landlord in sum- mary proceedings to dispossess a tenant for non-payment of rent, is a bar to an action brought by the tenant against the landlord to cancel the lease between them, on the grounds that it was intended as a mortgage and was usurious. Cochram, v. Beich, 151 N. Y. 122. "Where the holder of the prior mortgage is made a party to an ' action to foreclose a junior mortgage, the complaint in which sets forth the prior mortgage and asks that the amount due thereon be ascertained and first paid out of the proceeds of sale, but makes default, a judgment following the prayer of the complaint is binding upon him, and is a bar to an action to fore- close his mortgage. Jacdbie v. MieMe, 144 JS". Y. 287. A judgment recovered by a married Avoman, in an action to which her husband was not a party, reversed on appeal, is not a bar to a subsequent action by the husband. Stamp v. FramMin, lAi N. Y. 607. The question of former adjudication, estoppel, or bar is not to be determined by the judgment alone, but by the judgment-roll. Con/verse v. Sickles, 146 N. Y. 200. Baebees — Benefit Societies. 2195 Barbers. Chapter 823 of 1895, prohibiting barbering on Sunday, is not un- constitutional. People V. Ha/onor 149 N. Y. 195. Bastardy. When an undertaking on adjournment can be required. People ex rel. Bitzenthaler v. Iliggms, 151 N. Y. 570. An undertaking on adjournment does not bind a surety beyond the first adjournment, unless the examination has been com- menced. Id. Section 849 of the Code of Criminal Procedure, in relation to an adjournment, is not changed by the charter of the city of Hochester. Mietzenthaler v. Higgms, 151 ]^. Y. 570. Benefit Association ; See Insurance, Life. Benefit Societies. Where the form of application contains a provision that any un- true or fraudulent statement made therein will forfeit the right to all privileges or benefits, a misstatement as to the age of the applicant is material. Preuster v. Supreme Council of the Order of Chosen Friends, 135 IST. Y. 417. What will not amount to waiver of such forfeiture, as an accused member must be deemed to have made a payment under pend- ing the investigation at his own risk. Id. The waiver by the applicant in an application for membership in a fraternal society, of the provisions of law preventing dis- closures by physicians, is not against public policy. Foley V. Royat Arcanum,, 151 IST. Y. 196. When payment of an assessment to the wife of the secretary of a subordinate council at his residence in his absence is' suffi- cient. Anderson v. Supreme Cowncil of Order of Chosen Friends, 135 K Y. 107. The constitution and laws of the Order of Chosen Friends, con- sidered and construed. Anderson v. Supreme Coumoil of the Order of Chosen Friends, 135 IST. Y. 107. Payee of certificate of a mutual benefit society, organized to furnish substantial aid to " the families or assigns " of the members in the event of death, determined. Sulz V. Mutual Reserve Fund Life Ass'n, 145 IST. Y. 568. What parol agreement by the beneficiary of an insurance policy with the insured is valid and creates a trust. Hirsh V. Auer, 146 JS". Y. 13. 2196 Benefit Societies — Betting and Gaming. Benefit Societies — Continued. The directors of a mutual benefit society have no power to au- thorize the use of its reserve fund for the payment of its notes. McGlure v. Zevy, 147 N. Y._215. From Avhat fund judgment may be satisfied if by-laws especially provide for payments in a particular w'ay. ReSmond v. Industrial Benefit Ass' n, 150 E". Y. 167. When mutual assessment companies issued two classes of certifi- cates payable out of different funds, they must be paid from the classes so provided. People ex rel. Atty.-General v. Life <& Reserve Ass'n, 150 N. Y. 94. Special provision of by-laws for transfer from reserve funds to death funds, construed. Id. Payment of death claims and division of remainder upon dissolu- tion, construed. Id. A provision in the certificate of membership requiring satisfactory proof of death does not require information as to the cause of death. Buffalo Loam, Trust, etc., Co. v. Knights Terrvplan' & Masonic Mut. Aid Asso., 126 N. Y. 450. A usage not shown to have come to the knowledge of the member is insuificient basis for its requirement. Id. A mandamms will not lie to compel a second assessment to pay deficiency of a death loss even though a judgment was obtained against the society. People ex rel. Meyers v. Masonic Guild (& Mut. Benefit Asso., 126 N. Y. 615. Benevolent Associations ; See Charitable Bequests ; Litera/ry Asso- ciations ; Religious Associations ; Trusts. The words " some other occupation," as used in the by-laws of a benevolent society, construed. JVeill V. Order of United Friends, 149 E". Y. 430. Bequests ; See Legacies ; Wills. Betting and Gaming. The evidence that defendant took money to bet on a horse-race, is not sufficient to sustain a conviction for recording and registering bets and wagers. People V. Wynn, affirmed on opinion below in 128 N. Y. 59. The statute against betting and gaming is to be construed to accomplish the result intended. Luetchford v. Lord, 132 1^. Y. 465. A mortgage given to secure a gambling debt is void as to mortgagee. Ld. Bigamy — Bills and ' Notes, I. 2197 Bigamy ; See Criminal Lam. Bill of Lading ; See Ga/rriers. Bill of Particulars ; See Pleading. The affidavit on which the motion for a bill is made must be verified by the party personally, unless it is impossible to pro- cure his verification. Vohn v. JBaldwim,, 141 N. Y. 563. Verification by the attorney when the party is absent from the country where the attorney resides is not sufficient if no other reason is shown. Id. Where plaintiff's affidavits allege that all dealings between the parties were exhibited in defendant's books, and it is not denied, motion for a bill of particulars will be refused. Id. Bill of Sale ; See Chattel Mortgage. Bills and Notes ; See Bamlcs and Banking y Promise / TIsv/ry. I. Nature and Eequisites. II. Indoesement and Teansfee. III. Accommodation Papee. lY. GUAEANTT and SuEETT. V. Demand and Notice of Protest. VI. Peactice and Remedies. I. NATUEE AND EEQUISITES. An agreement by the creditor, to whom a demand note is given for a past-due indebtedness, to hold it until such time as he wanted the money, furnishes no consideration for an indorse- ment of such note by a third party. Si/roTig v. Sheffield, 144 N. Y. 392. Personal representatives of the maker are not liable upon an instrument in the form of a note payable after maker's death, executed without consideration and intended to operate as a gift. Holmes v. Roper, 141 N. Y. 64. Where the officers of a bank, with knowledge of its insolvency, receive on deposit the check of the depositor on another bank, the transferee of such check cannot recover thereon against the maker without proof that he is a honajlde holder. Grant v. Walsh, 145 N. Y. 502. Where the defense to an action upon a check by a transferee thereof from a bank in which it was deposited by the maker is fraud on the part of such bank in receiving the deposit when insolvent, evidence of knowledge of such insolvency by officers and transferee of note is competent. Id. The mere fact that the seal of a corporation was impressed upon an instrument in form of a promissory note does not render it 2198 Bills and Notes, I. Bills and Notes — Continued. non- negotiable, where the instrument does not refer to its being sealed, and there is no evidence to that fact. Weeks v. Esler, 143 IST. Y. 374. Where the form of a cashier's check does not import notice of the fact that the funds of the bank are being used to pay his private debts, the bank cannot recover back the money paid. Goshen Nat. Bk. v. State, 141 E". Y. 379. Upon the exchange of promissory notes, the particular transaction is fully consummated and does not remain executory. Eice V. Grange, 131 N. Y. 141. Each note is a valid consideration for the other. Id. The fact that one of the notes is not paid at maturity does not sustain the defense of failure of consideration in an action on the other. Id. A holder cannot recover where there is no consideration lesUe V. Bassett, 129 K Y. 523. "Where oiHcers of a corporation sighed a note bearing the name of the corporation printed on its margin, and affixing the de- scription " Pres't " and "Treas." to their signatures respect- ively, held, that they were liable thereon individually to a 'bona fide holder for value, without notice of the circumstances. Gasco Nat. Bk. v. Clark, 139 N. Y. 307. Payment made on a note by a subsequent indorser to the holder not made as agent of the maker does not inure to his benefit, and he remains liable for the whole amount of the note. Madison Sqtiare Bk. v. Pierce, 137 N. Y. 444. Otherwise, it seems, as to accommodation paper. Id. It seems, that where the note in such case is paid in full by the maker to the holder, or is merged in a judgment in his favor, the only right of the indorser who has made a partial payment to the holder is through the judgment or against the proceeds. Id. A making of a note by a debtor of a corporation at the request of one of its officers, in order to raise money with which to pay the maker's debt to the corporation, furnishes no consideration for the promise by the officer individually to renew the note. Arend y!: Smith, 151 IST. Y. 502. Duty of holder of note to indorser to present it for payment, and if payment is refused to protest it. Carroll v. Sweet, 128 N. Y. 19. As between holder and drawer, delay in presentment does not discharge drawer unless loss resulted. Id. What risk a person assumes who takes a negotiable instrument under circumstances imposing the duty of inquiry. Hanover Nat. Bk. v. American Dock c& 'Trust Co., 148 K Y. 612. Although customer is engaged in the business of note brokerage, Bills and Notes, I. II. 2199 Bills and Notes — Continued. a bank has a right to assume that such customer is acting in good faith. Ameriocm Excha/nge Nat. Bh. v. New Yorh Belti/ng <& Packing Co., 148 N. Y. 698. A note signed by an individual, with the addition of the word " President," is an individual note unless the bank has notice that it was used as the note of a corporation. First Nat. Bank of Brooklyn v. Wallis, 150 E". Y. 455. A remedy against such signors individually is not affected by the circumstances that a previous note of a corporation had' been used. Id. The attachment of a corporate seal of a note does not affect its negotiability. Chase Nat. Bk. v. Faurot, 149 N. Y. 532. An instrument in the form of a promissory note is valid although it contains neither words of negotiability nor the words " value received," or any equivalent. Ca/rnwright v. Gray, 127 N. Y. 92. When a consideration is implied from the character of the instru- ment. Id. A promissory note, which by its terms is payable within a speci- fied time after death of maker, is valid. Id. A promissory note payable after the death of its maker is valid. Hegemam, v. Moon, 131 ]M. Y. 462. A written statement that a certain sum of money is due a payee therein named, followed by the signature of the maker, implies an indebtedness from the maker to the payee. Id, The acknowledgment of indebtedness and that it is due implies a promise to pay on demand and makes it a promissory note. Id. A direction to an executor to pay such an obligation after his death is in the nature of a promise. Id. The addition of explanatory words does not alter its nature. Id. "Whatever may be implied from the language actually used in an instrument is, in judgment of law, contained in it. Id. II. INDOESEMENT AND TEANSFEE. Indorsement of a promissory note by the maker as first indorser does not affect the nature of his liability. Madison Squa/re Bk. v. Pierce, 137 N. Y. 444. Circumstances under which held that the right of a party who discounted an indorsed note is not affected by the fact that he was induced to take further collateral security which is dis- allowed by some ruling of public policy. Bowery Bank v. Gerety, 153 N. Y. 411. A bank is not chargeable with notice of fraud, where the maker of a note presents it for his own benefit, although it is made payable to another and indorsed bv him. Cheever v. Pittslv/rgh, 8. & £. E. R. R. Co., 150 N. Y. 59 2200 Bills and Notes, II, III, IV, V. Bills and Notes — Continued. When notes specify that bonds were deposited as security and no bonds were given, an indorser is not discharged because such bonds were not deposited. Nassau v. Campbdl, 147 N. Y. 694. One who receives a gift of negotiable securities takes them sub- ject only to such equities as then exist between the original parties. J^irst Nat. BanTc v. Wood, 128 N. Y. 35. A principal is not chargeable with notice of an agreement made by his agent contrary to his instructions, and is entitled to recover on checks received from the agent under an agreement between the agent and the banker that the checks were to be given only as a memorandum. Henry v. AUen, 151 N. Y. 1. An indorser cannot avail himself of his agent's mistake. Chase Wat. BJc. v. Fomrot, 159 IST. Y. 532. III. ACCOMMODATION PAPER. When an accommodation maker is not discharged by the receipt, by the holder of the note from the insolvent estate of the in- dorser, of a dividend paid in compromise of the debt in pro- ceedings in another state where the holder and indorser both resided. Thi/rd Nat. BTc. v. Eastings, 134 N. Y. 501. Indorser for accommodation may be released by failure to observe the conditions imposed by him. IT. 8. Nat. BamJe v. Ewing, 131 N. Y. 506. A bank is chargeable with notice of non-fulfillment of the condi- tion of indorser, who agrees to indorse, if another indorser is secured, when the director of the bank secured the note and is the agent of the banks. Twenty-Sixth Ward Bank v. Stea/rns, 148 N. Y. 615. lY. GUARANTY AND SURETY. An accommodation maker of a note, or one who becomes surety upon a note, his rights discussed and determined. Title of others who take with free knowledge of conditions fixed by accommodation maker. Benja^nin v. Rogers, 126 N. Y. 60. The holder of a note cannot recover thereon as against the estate of a surety who indorsed for a special purpose. Id. Sureties are liable for violation of duty of their principal. Walden Nat. Bh. v. Birch, 130 N. Y. 221. A breach of duty is not waived by a discharge of contract liability. Id. Where a right to sue the principal is waived, the sureties cannot be sued. Id. V. DEMAND AND NOTICE OF PROTEST. Where a notary who knew the residence of an indorser was in a town without the village, and had previously mailed a notice of protest to him at his post-oiRce address in "that town, under Bills and Notes, V, VI. 2201 Bills and Notes — Continued. the provisions of Laws 1857 (chap. 416, 3), which permits such notice by mail where the indorser lives in the same city or town or has a place of business therein, or has indicated such residence, or from the best information obtained from facts upon which, held, that due diligence to give notice of protest was not exercised, and that the indorser was not charged with notice, since the mere consulting of a directory, where other means of information are accessible, is not sufficient inquiry. Bacon v. Ilamia, 137 JST. T. 379. A non-resident having an office in this state where he received mail may be served with notice of protest there. People V. North Rwer Bcmk, 133 N. Y. 691. The referee may find that such notice was duly addressed and mailed. Id. "When demand has been made the day after the receipt of the draft and protest the next secular day thereafter, the drawer was bound. Sylvester v. Crohcm, 138 IsT. T. 494. Under chapter 289 of 1887, making Saturday half-holiday, the holder of commercial paper due or presentable on Saturday may rest upon a demand made before noon and notice of protest on that day, or he may make a demand on Monday if notice of non-payjnent is given on the same day. Id. The duty which the drawee owed to the drawer with respect to presentation was not the same as that which the bank owed to its depositor. Id. The secretary of a corporation may, after the appointment of a receiver, waive notice of protest. Ludington v. Thompson, 153 JST. Y. 498. Actual notice of a defect is necessary to defeat the rights of a honafide holder for value. Gheever v. Pittslwrgh, 8. & L. E. R. R. Co., 150 K Y. 69. When a person holds notes as collateral security and without re- ceiving any notes accepts others in their place, he is a honafide holder of the substituted notes. American Exchange Nat. BTc. v. New YorTc Belting c& RaoMng Co., 148 JST. Y. 698. Even though a plaintiff gives evidence of a consideration for the note, defendant is not relieved from the burden of showing want of consideration. Purland v. DwUmd, 153 N. Y. 67. VI. PKACTICE AND EEMEDIES. Though the holding of an accepted draft taken as security is sub- ject to defense of failure of consideration, the holder may have recourse to the original obligation. leslie V. Bassett, 129 N. Y. 523. Where a draft for the payment of money is made in another state by parties residing there, but is payable in the state where the 2202 Bills and Notes, "VI — Board of Claims. Bills and Rotes — Continued. drawee resides, the legal questions are to be decided by the law of this state. Sylvester v. Crohcm, 138 N. Y. 494. The holder of a note suing the maker upon it, where the defense is fraud on the part of the payee, including the execution and delivery of it, is not bound in the first instance to show the cir- cumstances under which he received the note. Pellyv.JSrwylor, 139 N. Y. 598. Although witness was a customer of the bank and the note in suit had been transferred by him, his credibility is not a question for the jury. Amsrican Exchange Nat. BTc. v. New York Beltvng & Packing Co., 148 N. Y. 698. Parol evidence is admissible that a note was delivered by maker to the bank with consideration upon an understanding that he would not be liable thereon. Higgms v. Pidgway, 153 N. Y. 130. A proper defense to a note was that it was without consideration, and delivered on condition that the maker should not be liable thereon. Id. "What is insuflBcient to authorize submission of question of usury to the jury. Posenstevn, v. Fox, 150 N. Y. 354. Blasting ; See Negligence. No action lies for an injury resulting from a lawful act performed with due care and diligence. Booth V. Pome,Watertown, etc., P. P. Co., 140 N. Y. 267. If the work could have been accomplished without causing the injury, or could have caused less injury, the act as performed was negligent. Id. Where injury occurs through the negligence of an independent contractor, the principal is not liable, and if the injury was inevitable no one is liable. French v. Vex, 143 N. x. 90. Board of Audit; See Canals ; State; Towns. Board of Claims; See Canals. "Where the original award of the Board of Claims was increased bj^ the Court of Appeals, the latter sum should stand and mwndamius will lie to compel payment if payment is refused. Sayre v. StaU, 128 N. Y. 622. The decisions of the board should be in writing, signed by all or a majority of the commissioners, and separately stating the facts found and the conclusions of law. Yam v. State, 127 N". Y. 190. "Where a contract for board and lodging provides that there shall be " no deduction in case of absence," the measure of damage is the contract price. WUhinson v. Davies, 146 N. Y. 25. Board of Health — Bonds. 2203 Board of Health ; See Constitutional Law ; Health. Bona Fide Purchaser ; See Bills and Notes ; Pwchaserfor Value / Sales ; Vendor am,d Purchaser. Bonds ; See Appeal ; Office. The sureties for the performance of a municipal contract are not released from an obligation to save the municipality harmless from claims for damages for personal injuries arising from negligence by the omission of the municipality to exercise the right to retain the contract money until the settlement of such claims. Mayor v. Brady, 151 IST. Y. 611. It is no defense to an action on the official bond of a town super- visor, that public school moneys placed in his hands for disbursement under the statute were lost without fault or negligence on his part. TilUnghast v. Merrill, 151 N. Y. 135. What changes in specifications of building contract do not affect the bond of one who executed it to secure the principal con- tractor for due performance by the sub- contractor. Hewricus v. JEnglert, 13Y IST. Y. 488. Paj'ments by the principal contractor to discharge liens filed against the building for work and materials furnished to the sub-contractor, in the absence of evidence to the contrary, give the former a right of action upon the bond as for breach of contract by the sub-contractor. Id. Under a bond to pay such part of the indebtedness of a third person as the creditor shall after due diligence fail to collect within one year from date, held, that the question of due diligence was properlv left to the jury. Salt Springs v. Mat. Bh. Sloan, 135 IST. Y. 371. The fact that the debtors are insolvent and have made an assign- ment for creditors is no excuse for failure to prosecute. Id. Eights of holders of income bonds secured by mortgage issued by a railroad company, each containing a covenant for payment of income semi-annually out of the earnings of the road, with a provision that no more interest should be paid than should be certified by the board of directors to have been earned above expenses, including necessary repairs, considered. Thomas v. If. y. and Greenwood Lake By. Co., 139 N. Y. 163. Liability of surety of deputy sheriff ; what is misfeasance of such deputy. Flach v. Brassel, 153 IST. Y. 621. Separate bonds should be given by guardians ad litem for each infant defendant. Crouter v. Crouter, 133 N. Y. 55. An action is not maintainable on a bond given by a deputy sheriff to the sheriff, to pay to the latter a portion of fees to recover the specified proportion of fees. Deyoe v. Woodmorth, 144 N. Y. 448. 2204 Bonds — Boundakibs. Bonds — Continued. Bonds issued by a cemetery association on the purchase of land, which is at the time of such purchase improved for cemetery purposes, are not invalid because they devote 75 per cent, of the net receipts of sales to their payment. Seymoior v. Spring Forest Cemetery Ass'n, 14A N. Y. 333. A recital referring to a written contract annexed thereto in a bond conditioned for the performance of " each and every condition therein contained " is sufficiently broad to cover a breach of covenants. Mayor v. New Yorh HefrigeraUng Const/ruGUon Co., 14:6 N. Y. 210. A sufficient consideration for the giving of a bond is the letting of a contract on the promise of such bond, although the bond was given subsequent to the commencement of the work. Smith V. MoUeson, 148 N. Y. 241. A bond, given to secure the payment of alimony, construed. Ensign v. Jarvis, 147 N. Y. 687. "When action upon a covenant in a mortgage bond will not lie. BeUen v. Bwrke, 147 N. Y. 542. Subsequent purchasers however, without notice of the actual transportation, may seek relief. M. Release of a surety on a contractor's bond on failure to give certificate, construed. Smith v. Molleson, 148 N. Y. 241. "When surety will not be released by the recall by the owner of a notice to terminate contract. Id. Bottles ; See Corporations. "Where the manufacturer on the sale of beverages took from the customer security for the return of the bottles, to be retained if they were not returned, hMd, that in the absence of an agree- ment to return them the transaction amounted to a conditional sale of the bottles. People v. Camion, 139 N. Y. 32. The Bottling Act is constitutional. Jd. Boundaries; See Deeds. If the distance specified from a fixed point of beginning extends to low water mark, the rule that monuments control distances mentioned does not apply. Oalces v. De Zancey, 133 N". Y. 227. A boundary by the ocean beach extends, unless otherwise indi- cated, to high water mark. McRdberts v. Bergman, 132 N. Y. 73. In the interpretation of a treaty, which supplanted a former treaty, ancient monuments govern. Seneca Nation of Indians v. Hugaboom,, 132 N. Y. 492. A re-survey does not alter the boundary lines. Id. A party is bound by the conditions imposed by a statute under which suit is brought. i^ Bounty — Bridges, 2205 Bounty. The purpose of Law of 1865, chapter 29, was to reimburse local- ities for previous expenditure in producing their quota of men. Taber v. Supervisors of Erie, 131 N. Y. 432. The word "quota" refers to the number called for by the national authorities. Id. A person who had furnished a substitute is entitled to bounty only when the substitute had been credited on the quota called for. Id. One who voluntarily furnished a substitute is not entitled to re- imbursement. Id. Breach of Promise to Marry. In determining whether the facts in an action for breach of prom- ise to marry constituted a contract, the court may not infer facts not sworn to, but may infer the meaning and intention. Tale V. CwUss, 151 K T. 596. What facts and circumstances are sufficient to justify a finding that there was a contract between the parties. Id. Mere courtship or even intention to marry is not sufficient to constitute a contract. Id. Bridges ; See Highways / I^e^o Yorh vmd BroohVyn Bridge. Maspeth avenue in the county of Kings and Queens is a pubho highway of which the boards of supervisors have control. People ex rel. Keens v. Boa/rd of Supervisors of Queens Co., 151 K y. 190. When, under section 130 of the Highway Law, a county is bound to contribute to the expense of a free public bridge. People ex rel. Root v. Board of Supervisors, 146 N. Y. 107. What is a town bridge within the meaning of the statute. Id. The statutory duty imposed upon supervisors to rebuild bridges across streams between two counties and to divide the cost be- tween the counties may be compelled by mandamus. People ex rel Keene v. Supervisors of Queens, 142 N. Y. 271.. The office of the writ is to make the supervisors act, and the exercise of their discretion as to the manner of performance cannot be controlled by the court. Id. The fact that the plans for such bridge must be approved by the Secretary of War does not justify failure to rebuild, and will not defeat application for mandamus. Id. Where the statute clothes the General Term with discretionary power to permit the erection of an elevated approach to a bridge, upon failure to obtain property owner's consent, their order is not reviewable on appeal. Matter of East River Bridge Co., 143 JST. Y. 249. 2206 Beokees. Brokers ; See Agency ; factors ; 8t»ck amd Stock Jobbing. An agreement by joint purchasers of land to pay broker who ne- gotiated the purchase a certain sum per acre, construed. Johnson V. Sirrett, 153 IS". Y. 51. A stock broker is not compelled to realize upon collateral be- fore suing for balance due. De Cordova v. Ba/rnum, 130 N. Y. 615. One party is bound by a contract so long as its conditions are fulfilled by the other. Bogm-s v. Wiley, 131 JST. Y. 527. An acceptance of a benefit may operate as a waiver of order to close an account. Id. Upon producing a buyer who is willing and able to purchase property and whom the seller accepts as purchaser, a broker is entitled to his commission. KeUey v. Baker, 132 N. Y. 1. The earning of the commission is not dependent on the buyer carrying out his contract. Id. If an exchange of property is to be made, it is no defence to the broker's suit for commission that the title to the property- offered in exchange is defective. Id. Otherwise if the broker assumes to execute for his principal an executory contract of sale or exchange. Id. "Where there is suiHcient evidence to show a consideration in sup- port of an agreement to pay for services it should be submitted to the jury. Myers v. Beam,, 132 N. Y. 65. But where no services were rendered by the broker the promise was void for failure of consideration. Id. Where stock carried on a margin is sold without proper notice, a subsequent promise by the customer to pay the amount lost upon the sale operates as waiver of notice and ratification of sale. Gillett v. Whiting, 141 N. Y Yl. In such case the court is justified in refusing to charge that to make a customer liable for a ratification it must appear that he knew his legal rights. Id. Where the broker sells stock without notice he does not lose his claim against the customer for advances made. Miner v. Bemeridge, 141 jN". Y. 399. Before a real estate broker can recover compensation he is bound to prove that he found a purchaser who was ready and willing to buy and produced him to the purchaser. Gerding v. Haskin, 141 N. Y. 514. Where a real estate broker is merely employed to find a purchaser, the seller to arrange terms and conditions, he may accept similar employment from a purposed purchaser, and is entitled to commissions from both. KoMsas V. Gottfried Krueger Brewing Co., 142 JST. Y. 40. The mere statement that the purchaser is responsible, in answer to an inquiry made for the purpose of merely finding out whether it was worth while to consider the matter, does not Beokees — Buffalo. 2207 Brokers — Continued. preclude the broker from accepting employment with the pur- chaser. Id. The New Jersey statute regulating brokers' commissions applies only where he is authorized to sell or exchange the land him- self. Id- A judgment in favor of defendants who as brokers had operated in stocks for plaintiif 's cashier who had used plaintiff's funds in his speculations, affirmed, on the evidence. Cenin'al Nat. Bit. v. White, 139 N. Y. 631. "Where in a contract for the sale of real estate negotiated by a broker and executed by his employer, a provision was made for the payment of a specified sum as liquidated damages by the purchaser in case of his failure to perform, which sum he elected to pay, held, that the broker was entitled at least to commis- sions.' Gilder v. Bmis, 13Y N. Y. 504. Facts upon which, held, that under a contract for the payment of a specified commission "if sold through your agency," no com- missions were earned. Condict v. Cowdrey, 139 N. Y. 273. A broker, employed to lease real property, is not entitled to com- missions until he negotiates a lease or procures the execution of a valid and binding agreement for a lease. Crombie v. Waldo, 137 N. Y. 129. Brooklyn ; See Municipal Corporations y a/nd BrooMyn Bridge. When duty of a comptroller is ministerial only, performance may be controlled by irnandamius. As to paid work on a contract where an action of certain officials is conclusive. MatUr of Freel, 148 N. Y. 165. Chapter 710, Laws 1892, modified the revised charter of the city of Brooklyn as to confer on the fire commissioners the power of fixing the salaries of officers of the fire department. People ex rd. Ddbson v. Fire Comrs. of BrooMyn, 146 N. Y. 35. Bufialo ; See Mwn/icipal Corporations. Section 504 of the charter of Buffalo, requiring contracts with the city to bind the contractors not to discriminate against members of labor organizations or to accept more than eight hours as a day's work, is simply directory. People ex rel. Wa/rren v. Beck, 144 N. Y. 225. When an assessment for paving in a park may include improve- ments on streets outside park used to furnish proper drainage. Kitbmger v. City of Buffalo, 148 K Y. 332. Power of board of assessors to fix district assessment. People ex rel. Lehigh Valley B. E. Co. v. City of Buffalo, 147 K Y. 675. Keal property is assessed for improvement erroneously, the court may send the assessment roll back for correction. Id. 2208 Building and Loan Associations — Calendar. Building and Loan Associations. What is valid defense to an action by withdrawing member tore- cover dues paid by him. Engleha/rdt v. Fifth Ward Perrrument Dime Sanmigs cfe Loom Ass'n, 148 IST. Y. 281. A member is bound by a reasonable amendment of the by-laws. Id. It is reasonable to pass an amendment to the by-laws that with- drawing members shall be paid in ordfer. Id. Where statute provides that the certificate of incorporation may provide for three different classes of stock, and a certificate is refused upon that ground, its issuance may be compelled by mcmdamus. People ex rel Fairchild v. Preston, 140 N. Y. 649. Burden of Proof ; See Evidence. Burglary ; 8ee Criminal Law. When separate counts for burglary, larceny and receiving stolen goods may be joined in same indictment. People V. Wilson, 151 N. Y. 403. What is not sufficient to exclude inference that a person had pos- session of stolen property. Id. What is sufficient mformation to give jurisdiction to the magis- trate to issue a warrant. Swa/rt v. Bidka/rd, 143 N. Y. 264. Business Corporations ; See Corporations. The filing in the office of the Secretary of State of the certificate of full-paid stock of a corporation organized under the Business Corporation Act of 18Y5 was a sufficient compliance with the statute, though not filed in office of county clerk. Jones V. Butler, 146 N. Y. 35. Calendar. The bare fact that the sheriff has levied upon certain certificates of stock belonging to the defendant and in the possession of another, wiU not entitle party to preference. Nichols V. 'Soranton Steel Co., 135 IST. Y. 634. Under section 791, subdivision 5 of the Code, a party is not en- titled to preference where other persons are joined with him individualh'', although they may be executors. Haux V. DryDoch Savings Institution, 150 N. Y. 581. Though preference was sought on the ground that plaintiff was an executrix she shall be refused advancement, since she had not brought the action in that capacity. People v.*^ Cannon, 139 IST. Y. 645. Calendar — Canals. 2209 Calendar — Continued. The provision of section 791, subdivision 10 of Code, giving a pref- erence to causes entitled thereto by the general rules of prac- tice, does not apply to the calendar of the Court of Appeals. Nichols V. Scromton Steel Co., 135 K Y. 634. Canals ; See Boa/rd of Clmms ; NegUgenoe ; State. "When time under which Revised Statutes (226, § 49), as to limita- tion of time during which claim may be brought, begin to run. Tmo V. State, 127 N. Y. 190. As to land temporarily taken, the statute does not begin to run until the state has ceased to use the lands. Id. Jurisdiction of the board of claims does not include claims for damages for injury resulting to a person on a canal boat through the negligence of servants or agents of the state. LooTce V. State, 140 N. Y. 480. Under Laws 1870 (c. 321), filing of claim with canal appraisers is essential to give them jurisdiction. Proof of addressing and mailing a statement of the claims to the canal appraisers is not enough. Gates v. State qfW. Y., 128 N. Y. 221. The jurisdiction of the tribunal being limited and special, no presumption in support of it will be entertained. Id. The state is liable for injuries sustained through a defect in a bridge over an abandoned portion of the canal which was still maintained by the state. Woodman v. State, 127 N. Y. 397. The provisions of the said act has reference only to damages in- cident to the discontinuance. Id. It was the intention of the state to continue the control of the superintendent of public works over the bridges until they were disposed of. Id. Chapter 524 of 1857 was a valid additional appropriation of the water of Owasco lake subject to the right of riparian owners to be compensated for damages. Wright v. Shamaham,, 149 IST. Y. 495. An implied promise arising from conduct is sufficient to protect property from injury by the state. Putnam v. State of N. T. 132 N. Y., 344. Land or water appropriated by the state must be definitely as- certained and described. Han/den v. State of N. T., 132 JS". Y. 533. The state has power to cure a defect in a former appropriation of land and to award compensation for additional land taken. Id. A person is not bound by a report in which his claim was not considered. Id. Where the description is definite an appropriation is valid. Id. Where it did not appear that the overflow of a river the channel 139 2210 Canals — Careibes, I. Canals — Continued. of which the state had changed would not have occurred if the change had not been made, held, that the state was not liable for not maintaining a guard-bank. Stone V. State of N. Y., 138 K Y. 124. "Where the state had abandoned the canal more than seven years before the damage, under L. 1877, c. 404, which provided that no claim should accrue because of the abandonment, held, that the claim was not maintainable. Id. Cancellation ; See Cloud on Title y Mistake y Reformation of In- struments. Failure of plaintiff to rescind contract procured by fraud consid- ered, and held under the circumstances not sufficient to de- prive him of his remedy in equity. Haslerg v. McCarty, 127 N. T. 655. When a creditor of an intestate may maintain an action to can- cel a forged mortgage. Nat. BTc. of We»t Troy v. Levy, 127 N. Y. 549. When such action is not in the nature of a creditor's bill, it is not necessary to show the docketing of plaintiff's judgment and the return unsatisfied of the execution upon it before com- mencing the action. Id. Carriers; See Freight ; Negligence ; Sail/roads; Shi^s and Vessels. I. Freight. II. Passengers. I. FKEIGHT. A custom of steamship companies to pay land freight charges upon receiving goods on board their vessels, will not sustain an action for the recovery of such freight upon goods destroyed upon the wharf. iV^. Y. Lake Erie, etc., H. R. Co. v. Nat. Steamship Co 137 K Y. 23. Each of several carriers through whose hands freight passes has lien upon the goods for his unpaid freight until delivered to the consignee. Id. Until delivery of such goods has been accomplished, such contract imposes no duty, express or implied, on the part of a carrier by 'water to reimburse a preceding land carrier for its share of the cost of transportation. Id. Upon a shipment under a contract by the carrier to transport at reduced rates, upon condition that in the event of loss or in- jury the carrier's liability shall be limited to a valuation speci- fied, the shipper can in case of loss recover no more than the specified sum. Zimmer v. N. Y. Central, etc., R. R. Co., 137 E". Y. 460. Careieks, I, II. 2211 Carriers, — Continued. Shipper will be held chargeable with knowledge of and to have assented to terms of contract where he had opportunity. Id. Where compliance with the terms of a stipulation is necessary to secure reduction of rates, failure to so comply forfeits the privilege. ' Lough v. Outerhridge, 143 N. Y. 271. A shipment bill providing that the carrier will not be responsible for delay, will not relieve it from the consequences of delay caused by its negligence. Jennmgs v. Grcmd Trunk By. Co., 127 N. Y. 438. Provisions in a shipping bill requiring presentment of damages within 36 hours, held, under the circumstances to be unreason- able. Id. A person authorized to deliver property of another may ordinarily be considered a carrier as having authority to accept terms of affreightment. Id. "Where the goods are delivered pursuant to a previous under- standing the person making the delivery cannot accept condi- tions. Id. When shipper is not chargeable with notice of terms. Id. Eailroad company, undertaking to deliver goods at a point be- yond its own line, is responsible for the consequence oi any de- fault or want of reasonable diligence, unless relieved by some limitation. Id. It seems, where it does not contract to transport goods further than the terminus of its own road, it is only bound to carry them to that point. Id. Evidence held sufficient to justify a finding of contract to trans- port to destination beyond the carrier's own line. Id. Facts upon which, held, that carrier could not be charged as an insurer as for a deviation, because the steamer discharged at Southampton and did not go to London. Bohertson v. Ifat. Steamship Co., 139 N. Y. 416. Provisions in a shipping receipt that no statuary will be carried unless a memorandum in writing stating its character and value is also delivered, and a proper extra price paid, do not relieve a carrier from negligent act of its servants. Bathhone v. iV. T. Cenl/ral, etc., B. B. Co., 140 N. Y. 48. Unless he is informed before or when the goods are received of their unusual value, the carrier is exempted for his negligence. Id. Where the marks on the package indicate its nature, its accept- ance without the written memorandum will be deemed a waiver of the terms of the shipping receipt. Id. II. PASSEISTGEES. When a steamboat company is liable to a passenger for the loss by theft. Adams v. New Jersey Steamboat Co., 151 N. Y. 163. 2212 Carriers, II — Cemeteries. Carriers — Continued. The business of a ferry company must be conducted with such care and skill as will make the entrance upon its boats safe for persons of ordinary prudence. Bace V. Union Perry Co., 138 N. Y. 644. When the question of reasonableness of the rule should not be submitted to the jury. B(wTc6r V. C. P., N. & E. E. R. E. Co., 151 N. Y. 237. A common carrier need not call to the particular attention of each passenger a reasonable and just rule which it has pro- mulgated. Id. The owner of a ship is not liable for mistakes of a physician em- ployed thereon according to law. Allam, V. State Steamship Co., 133 N. Y. 91. Case ; See Appeal y Practice. It is not necessary that there should be a certificate that the case contains all the evidence in order to authorize a review of exceptions to the rulings or charge of the trial judge. Eosenstein v. Fox, 160 IS". Y. 354. Eequests and refusals to find, or exceptions duly taken thereto, are properly a part of the " case " on appeal. Tovng V. Toimg, 138 IST. Y. 626. A party seeking to strike out his adversary's exceptions on the ground that they were not duly filed must show so affirm- atively. Id. An exception is not available where the subject-matter is omitted on appeal. Patten v. United life & Accident Ins. Assoc. 133 N. Y. 450. Cattle ; See Animals ; Est/rays. Cause of Action ; See Action, Eight of. Cemeteries. It seems, an action lies against a cemetery association, upon its certificate of indebtedness, for sums applicable to the payment of such certificate. Thacher v. Hope Cemetery Assn., 126 N. Y. 507. A corporation unable to use its lands for corporate purposes may be dissolved. People ex rel. Oak Rill Cemetery Association v. Pratt 129 ]Sr. Y. 68. The dissolution must be according to statute. Id. Possession of a lot under color of title for more than twentv vears will protect the holder. Conger v. Treadway, 132 N. Y. 259. Cemeteries — Ceetioraei. 221S Cemeteries — Continued. "Where owners of land organize a corporation for its management as a cemetery, of which they are the solo stockholders, and convey the land to it in exchange for corporate bonds, the fact that the land was not worth the sum secured is immaterial, as the transaction is, in substance, simply a change in the manner of holding the land. Seymour v. Spring Forest Cemetery Assn., 144 N. Y. 333. An agreement for the purchase of land by a cemetery association made prior to the filing of the certificate of incorporation is ratified and validated by subsequent acceptance of the deeds. Id. Bonds issued by a cemetery association on the purchase of land which is at the time of such purchase improved for cemetery purposes are not invalid because they devote 75 per cent, of the net receipts of sales to their payment. Id. Certiorari ; See Taxation. The limitation of four months for taking out and serving a writ of certiorari, contained in Code Civil Procedure (§ 2125), does not apply to proceeding to review an order of commissioners of highways laying out a highway. People ex ret. Cook v. Hild/reth, 126 N. Y. 360. The statute has extended the operation of the writ beyond what it had of common law ; what the court may review. Id. Certiorari does not lie to review an assessment, before the board of revision has acted thereon. People ex rel. Ma/rtin v. Gilon, appeal dismissed, 12& N. Y. 651. Upon certiorari to review an assessment for a local improvement^ the determination of the assessors as to the property benefited and the extent thereof, is not subject to review except for errors, of law. People ex rel. Da/oidson v. Oilon, 126 N. Y. 147. Under section 2120, subdivision 2 of the Code, an award made by commissioners appointed to estimate loss by reason of change of grades of streets may be reviewed by certiorari. Matter of Fitch, 147 N. Y. 334. Unless there is an admission in the return of facts alleged in the petition, the court under section 2138 of the Code cannot con- sider the allegations of the petition. Miller v. Wurster, 149 IST. Y. 549. The granting of a writ to a taxpayer under Laws 1880 (c. 269), is a matter of right. Matter of Corwin, 135 N. Y. 245. The provision of the act of 1880, allowing the application to be made within fifteen days after the completion and delivery of the roll and the giving of notice, cannot be abridged by any act of the assessors or common council. Id. 2214 Certioeaki. Certiorari — Continued. The petition on such application is in the nature of a pleading and only conclusions of fact need be stated. Id. It is a cardinal principle, as applicable to proceedings by oerUorari as to other legal proceedings, that a party cannot be heard in court who has no interest in the matter pending. ^ People ex rel. Blakslee v. Com'rs of Lam,d Office, 135 N. Y. 447. Proper parties to writ of cerUorari to review the decisions of the comptroller canceling the title of the state to lands Avithin the forest preserve, considered. People ex rel. Forest Commission v. Gampiell, 152 N. Y. 51. When the return of a writ of certiorari states two dates, one definitely and one indefinitely, the former will control. People ex rel. Jordon v. Martm, 152 N. Y. 311. Decision by the comptroller for payment of taxes may be reviewed by certiorari. People ex rel. Brush Elect/rio Mfg. Co. v. Wemple, 129 N. Y. 543. The writ is appropriate only to review the judicial action of inferior courts or officers or bodies exercising judicial functions. People ex rel. Trustees of Jamaica v. Supervisors of Queens, 131 K Y. 468. It is not available to review the action of a public ofiicer or body which is merely legislative or administrative. Id. Mere legislative action is not reviewable by oertiffra/ri. Id. "Where the bringing of the writ is erroneous it should be quashed. Id. It is not proper to review by cerUora/ri an order of the County Court confirming the report of commissioners appointed to lay out a highway. People ex rel. D. L. & W. R. R. Co. v. Comity Court of Onondaga County, 152 E". Y. 214. Where the commissioners of taxes refuse to decide in accordance with uncontradicted evidence as to the actual value of the capital stock and surplus of a corporation liable to taxation, such refusal amounts to legal error reviewable by certiorari. People ex rel. Edison Elect/rio 'Rlvmiinatmiq Co. v. Ba/rher, 139_K Y. 55. ■ Otherwise, it seems, where they proceeded upon information or evidence tending to support their decision in deciding upon questions of value. /^. A relator, who does not claim to be the owner of the adjoining upland, has, therefore, no status to review the action of the land commissioners in granting to a third person, a strip of land under water. People ex rel. Blakslee v. Comers of Land Oifice, 135 N Y 447. Ceetiorari. 2215 Certiorari — Continued. The facts that the relator has filled in some of the lands under water gives him no title thereto. Id. An order quashing a writ of eertiorwri because relator had no power to prosecute it is reviewable by the Court of Appeals. People em rel. Forest Commission v. Campbell, 152 JN . Y. 51. The action of the Board of Supervisors in establishing a town fire district is legislative and cannot be reviewed by cerUorari. People eji rel. C Connor v. Board of Svpervisors of Queens Co., 153 N. Y. 370. An appeal may be taken to the Court of Appeals from an order dismissing a writ of certiora/ri for want of jurisdiction. Id. In a petition for a certiora/ri to review an assessment for taxation under chapter 269, Laws 1880, on the ground of irregularity, only the conclusions of fact need be stated. People ex rel. Com,m£,rcial Mutnial Ins. Co. v. Tax Com/rms- sioners, 144 N. Y. 483. "When a petition for cerUorari to review an assessment sufficiently specifies the grounds of illegality. Id. An order quashing a writ of certiora/ri issued under chapter 269, Laws 1880, to review an assessment of the personal property of a corporation for taxation, is appealable to the Court of Appeals. Id. Where a statute permits a local board of health to act upon its own inspection and knowledge of an alleged nuisance, its determination upon the question is not reviewable bv certiora/ri. People ex rel. Copcutt v. Board of Health of Yonkers, 140 It seems, that the proceedings of a board of health illegally con- stituted cannot be reviewed upon certiorari. Id. Certiora/ri may issue to review proceedings for criminal contempt. People ex rel. Taylor v. Forbes, 143 N. Y. 219. The act of the police commissioners in selecting newspapers to publish list of nominations for public office is judicial, and may be reviewed in certiora/ri. People ex rel. Press Pub. Co. v. Martin, 142 N. Y. 228. A statement in the return which, shows literal compliance with the statute is conclusive upon the court. Id. In such case if the return be false, the remedy of the relator is by an action for making a false return. Id. An action will lie against a highway commissioner for making a false return to a writ of cert%ora/r%. Bea/rdslee v. Dolge, 143 IST. Y. 160. An order of the Governor, disbanding a militia company, is not reviewable by writ of certiorari, as it is not a judicial deter- mination. People ex rel. leo v. Hill, 126 N. Y. 497. Nor though it is claimed that the act under which order was made was unconstitutional can courts intervene. Id. 2216 Certiorari — Charter Party. Certiorari — Continued. Where there is evidence to support the determination of the assessors as to value of property of corporation, it will not be reviewed by the Court of Appeals. People ex rel. Seeker- J ones- Jewell Milling Co. v. Ba/rker, 147 K Y. 31. A petition for a writ of certiora/ri under chapter 269, Laws 1880, to review an assessment for taxation on the ground of illegality, must specify the alleged illegality. » People ex rel. Commeroial Mutual Ins: Co. v. Tax Commis- sioners, reversed, 144 N. Y. 483. A petition which alleges that an assessment is illegal, invalid, void and erroneous, and specifies as grounds of illegality and error that the commissioners overestimated the valuation of scrip representing capital and surplus and " illegally and erroneously included in their valuation of personal property " certain sums, raises on\j the questions of overvaluation. Id. Challenge ; See Jury. Champerty ; and Maintenance ; See Attorney. What does not constitute adverse possession against the remain- derman rendering his deed void under the Champerty Act. Sand V. Church, 152 IST. Y. 174. Chancery ; See Equity. Charitable Associations ; See Benevolent Associations. Charitable Requests ; See Trusts. Charitable Trusts ; See Trusts. Charter Party ; See Ships and Vessels. Although navigated by unlicensed pilot, a vessel is not to be con- sidered unseaworthy. Tebo v. Jordan, 147 I^. Y. 387. Mere representations 'by the owner of a wharf which are not em- braced in the charter party fail to show a contract obligation on his part. MoCaldin v. Parke, 142 N. Y. 564. When a charter party is relieved from the efPect of a covenant to deliver the vessel in good order at the expiration of the term, where such vessel was destroyed by fire without fault on the part of the hirer. Young v. Leary, 135 N. Y. 569. Where there is a waiver, on the part of the owner, of delivery of the vessel on the day specified and extension of time therefor, a destruction of the vessel in the mean time without fault on the part of the hirer will be a destruction before any breach of the contract. Jd. Charter Party-— Chattel Mortgage, I, II. 2217 Charter Party — Continued. It seems, that a party can, if he so please, bind himself to deliver, notwithstanding the thing may perish which he contracts to deliver. Id. Chattels ; See Conversion ; Mxtures / Personal Property ; Sales. A contract with a lithographing company under which it makes impressions upon stones from designs furnished by a person, the title to the stones to remain in the company, will not sustain an action of conversion by such person against one acquiring title to the stones through chattel mortgage fore- closure. Knight v. Sackett <& Wilhelms lithographing Co., 141 K Y. 404. Chattel Mortgage. I. What is. II. Rights of Parties. III. Filing. I. WHAT IS. A mortgage cannot be given future effect as a lien upon property not in existence when the rights of creditors have intervened. Rochester Distilling Co. v. Easey, 142 N. Y. 570. A chattel mortgage upon a crop which has not been planted is not effectual as against a subsequent execution creditor. Id. It seems, that such mortgage might operate by way of present contract, that the creditor should have a lien upon the prop- erty when it comes into existence, which equitj^ would enforce. Id. When an instrument will be considered a chattel mortgage. Susmam v. Whyna/rd, 149 N. Y. 127. A bill of sale absolute in form accompanied by an agreement to re-deliver on the repayment of the debt, is a chattel mortgage. Button V. Rathbone, Sa/rd <& Co., affirmed, 126 N. Y. 187. A bill of sale of goods stored in a warehouse, the goods not being delivered to the vendees, is a mortgage and not a pledge. People V. K Remvngton c6 Sons, affirmed on opinion below, 126 K Y. 654. II. EIGHTS OF PAETIES. A condition in a chattel mortgage given to secure a note that the principal shall become instantly due if the mortgagor " per- mits or suffers any attachment or other process against prop- erty to be issued against it," refers to the property described in the mortgage. Robertson v. Ongley Elecinfic Co., 146 N. Y. 20. When default is made in the payment of the debt secured by a 2218 Chattel Mortgage, II, III. Chattel Mortgage— Continued. mortgage on personal property the legal title to the property- becomes vested in the mortgagee. Kimball v. Farmers and Mechanics' Nat. Blc, 138 N. T. 500. It seems, however, that so long as the mortgagor of a vessel is not disturbed in his possession he is entitled to receive the freight. Id. Case of several mortgages on same vessel, held, that as between two mortgagors the former had the prior right to the freight, less the sum paid by latter to discharge the liens and the ex- penses of returning the vessel. Id. Mortgagee may sue for conversion upon sale of mortgaged prop- erty. Moore v. Prentiss Tool on Supply Co., 133 N. T. 144. An oral agreement cannot alter the terms of a written instrument. Id. Creditors of a mortgagor of chattels under a mortgage not refiled pursuant to Laws 1833, chapter 149, as amended by Laws 1879, chapter 418, acquire no rights, before judgment and execution upon their claims. Tremwine v. Mortifner, 128 N. Y. 1. In such case mortgagor may deliver that property in any honest way. Id. Circumstances under which held that the purchaser at a sale under execution against debtor issued on judgment obtained after an assignment could not maintain an action for conversion against the mortgagee, who took possession of goods before assignment and before the judgment was obtained. Id. Whether a creditor could in such an action maintain an action, query. Id. A creditor can only enforce his lien after failure of mortgagee to record a chattel mortgage by levy or the appointment of a receiver, and loses his lien by not proceeding until after an assignment. Kitchen v. Lowery, 127 N. Y. 53. Commencement of a creditor's suit -^vithout the appointment therein of a receiver is insufficient to secure the lien of creditor as against such chattel mortgage. Id. III. FILING. Transfer to general assignee by debtor of goods covered by chattel mortgage void for want of refiling authorized assignee to re- cover goods from sheriff. Bowdish v. Page, 153 N. Y. 104. Failure to file a chattel mortgage renders it void as to the then existing creditors of the mortgagor. Stephens v. Perrine, 143 N". Y. 476. Where it is filed by the mortgagee who takes possession of and sells the property before the creditors enter judgment and issue execution, the rights of the creditors are not affected. Id. Otherwise, it seems, in case of a transfer of the property in good faith to pay the mortgage debt. Id, Chattel Moetgage, III — Civil Damage Act. 2219 Chattel Mortgage — Continued. In such case a receiver appointed in supplementary proceedings may maintain an action for the proceeds. Id. The provisions of L'avvs 1833 (c. 279, § 1), rendering void as to creditors a chattel mortgage which is not filed as directed in a succeeding section of the act, applies in favor of antecedent creditors of the mortgagor. Ka/rst v. Game, 136 N. Y. 316. A simple contract creditor is as much within the protection of the statute as a creditor whose debt has been merged in a judg- ment. Id. A delay of six weeks in filing a mortgage, without any circum- stance rendering so long a delay necessary is not a compliance with the act, and subordinates the claim of the mortgagee to that of prior creditors. Id. Checks ; See Bwriks amd Bcmlcvng ; Bills and Notes. Children. On an appeal under section Y49 of the Code of Civil Procedure from the commitment of children pursuant to section 291 of the Penal Code, when the evidence upon which the appeal is allowed does not allege any errors with reference to a deter- mination of the facts, the evidence is not required to be re- turned, and the failure of the magistrate to preserve it furnishes no ground for reversal. JPeople v. Giles, 152 N. Y. 136. It is the duty of the magistrate holding courts of special sessions to keep minutes in order that their decisions may be reviewed. Churches ; See Religious Associations. Citizenship ; See Aliens. City of New York ; See Mimicipal Corporations. Civil Damage Act ; See Excise ; Liquor Tax Law. The amendment requiring notice before an action can be main- tained did not apply to defeat existing causes of action. Quimlarn v. Welch, 141 N. Y. 158. "Where the evidence of an infant child is sufficient in an action for sale of liquor to her father producing intoxication which resulted in his death, the case should be submitted to the jun'^. Id. Its interpretation should be according to its true intent and meaning. Dudley v. Parker, 132 IS. Y. 386. The 'furnishing of liquor must be the proximate cause of the in jury resulting from intoxication. Id. 2220 Civil Damage Act — Civil Service. Civil Damage Act — Continued. Where the injury was not caused by the party to whom it was sold, the sale cannot be said to be the proximate cause of such injury. Id. The knowledge of agent is knowledge of principal. Hall V. Oermcmi, 131 K Y. 5-36. The knowledge may be established by direct or circumstantial evidence. Id. The landlord is not bound to insert a covenant on part of the tenant not to sell liquor on the premises. Id. "Where the lease is at will or sufferance it is the landlord's duty to prohibit sale of liquor. Id. Liability exists if the liquor sold contributed in the slightest degree to the injury. Id. The principal is bound by the conduct of his agent. Id. Civil Rights ; See ConstituUonal Law. The civil rights acts of 1895 confers no absolute right of admis- sion to a public race meeting on the person who has been ruled off the turf. Grcmnam, v. Westchester Racing Assn., 153 IS. Y. 449. Discrimination not based upon race, creed or color does not come within the condemnation of the statute. Id. Civil Service ; See Veterans. Section 8 of the Civil Service Law of 1883, as amended by chapter 410 of 1889, required the mayors of cities to classify employes. Chittenden v. Wwrsler, 153 N. Y. 664. The clerk of the police justice of the citv of Syracuse is a member of the civil service of that city, and liis position is not a con- fidential one. People ex rel. Sears v. Tohy, 153 N. Y. 381. How the civil service rules of the city may be proved. Id. A person appointed to an office without havmg passed a civil service examination may be discharged without notice or hear- ing. People ex rel. Hannan v. Boa/rd of Health, 153 I^. Y. 513. The word " incompetency " as used in the act means capacity. The statutory provisions giving preference to veterans did not impair the authority of the warden or agent of a state prison to discharge a keeper. People ex rel. Griffin v. Laihrop, 142 N. Y. 113. Discharge of a temporary clerk is not within the provisions relating to veteran soldiers. People ex rel. C Connor v. Adams, 133 N. Y. 203. Private employment of a person by a public officer is not.subject to provisions of statute. Sa/rgent v. Gorman, 131 N. Y. 191. Civil Service — Cloud on Title. 2221 Civil Service — Continued. Private employment cannot be made public by statute. Id. The presumption is that the law is complied with. Id. The superintendent of public works has the power of appoint- ment of subordinates subject to section 9 of article 6 of the constitution. People ex rel. MoClellcmd v. Roberts, 148 N. Y. 360. Article 5, section 9 of the constitution does not need additional legislation to put it in force. Id. Chapter 344 of the Laws of 1895, as to examination of soldiers or sailors, is in conilict with, section 9, article 5 of the constitution. Matter of Keymer, 148 N. Y. 219. The provisions of section 9 of article 5 of the constitution rela- tive to civil service, construed. Chittenden v. Wurster, 152 N. Y. 345. The Civil Service Law of 1883 and 1895 held in harmony with the constitution. Id. A classification made by the mayor of a city while voidable pro- tects officers appointed under it, and as to them must be deemed valid. Id. A mayor refusing to make a classification may be required so to do by momdaTnus. Id. "When the question as to whether a competitive examination is practicable is one of law. Id. Competitive examinations are not practicable for positions of a confidential nature. Id. "What positions should be deemed confidential. Id. Positions in confidential class cannot be strictly limited. Id. Claim and Delivery of Personal Property ; See Eepl&oin. Cloud on Title ; See Ccmcellation ; Beformation of Instnr-wments ; Specific PerforrruMice ; Taxation ; Vendor amd Pv/rohaser. Where plaintiff sought to have a power of sale given to the exe- cutor by a will declared void as repugnant to a prior absolute devise, and creating a cloud upon the title, held, that if the power was invalid the fact appeared on the face of the will. Mellen v. Mellen, 139 N. Y. 210. The fact that a deed purports to have been executed for a nomi- nal consideration, does not show it to be fraudulent on its face, so as to deprive a creditor who succeeded to the title of the grantor from attacking it as in fraud of creditors. Smith V. Reid, 134 N. Y. 56b. A town may maintain an action to set aside a deed of town lands executed in its name by one of the trustees without authority. Trustees, etc. , of Eastham/pton v. Bowman, 136 N. Y. 521. The objection that the complaint does not show facts which 2222 Cloud on Title — Collateral Inheritance Act. Cloud on Title — Continued. authorize the commencement of an equitable action cannot be taken for the first time on appeal. Id. Where a tax deed is made by statute conclusive evidence that the sale was regular, an equitable action will lie to cancel such deed if the prior proceedings were void. Landers v. Downs, 141 !N". Y. 422. "Where the will gave testator's property to his wife, and she hav- ing again married gave to her husband a mortgage on the real estate, which was recorded after her death, the mortgage is a valid lien on the property. Swwrthout v. Hanier, 143 S. Y. 499. Equity will interfere to prevent a threatened cloud on title where there is a determination to create a cloud. JTing v. Townshend, 141 IST. Y. 358. Although a tax lease is ineffective to establish a title until notice to redeem has been given, it may be cancelled as a cloud on title. Id. The objection that the lease is invalid, because the sale included an illegal charge for interest not appearing on its face, will not defeat the action. Id. Where he can show possession and the presumption of ownership which follows therefrom, a party is not bound to show or defend his paper title. M. Clubs ; See Excise. Action against trustee of a club, incorporated for social purposes, is not penal. Roger v. Decker, 131 ]N. Y. 490. The liability is analogous to that of partners. Id. Where property is conveyed subject to the by-laws of club, they may be construed to authorize an assessment for per- manent improvements. Whiteside v. Noyac Cottage Assn., 142 N. Y. 858. A broker, who is also one of the purchasing committee of a club, cannot reserve commission to himself. Redhead v. Parhway Drvoing Club, 148 N. Y. 471. What is not a sale by a club, within the meaning of the Excise Law of 1892. PeopU v. AdeVpU Club, 149 N. Y. 5. Code of Civil Procedure ; See Practice. Collateral Inheritance Act ; See Transfer Tax. Legacies to foreign legatees under the will of a non-resident tes- tator, which are paid by his executors out of assets in the for- eign country, are not taxable under the Collateral Inheritance Act as amended in 1887. Matter of James, 144 N. Y. 6. Shares of stock in foreign corporations owned by a non-resident testator at the time of his death, are not taxable under said act, even when the certificates are within this state. Id. Collateral Inheritance Act. 2223 Collateral Inheritance Act — Continued. The exemption in the law of 1887, as to "the societies, corpora- tions and institutions now exempt by law from taxation," did not apply to bequests to municipju corporations. Matter of Hamiltmi, 148 N. Y. 310. The provisions of the Collateral Inheritance Tax Act apply only to the property of which the decedent died seized and possessed, Matter of Vassar, 127 E. Y. 1. The Collateral Inheritance Tax Act's provisions relating to exemp- tions are to be construed strictly against the government. Id. Where the amounts paid to the remaindermen are contingent, and the annuities not being vested interests, no tax can be im- posed. Matter of Roosevelt, 143 IST. Y. 120. An interest cannot be taxed until it is determined whether it is vested or contingent. Matter of Curtis, 142 IST. Y. 219. Under the amendment of chapter 113 of 1887, personal property in this state owned by a non-resident intestate at the time of his death, which was habitually kept or invested by him here is liable to tax. Matter of Romaine, 127 N. Y. 80. An estate in remainder created by the will of the testator vcho died while the act of 1885 was in force must be appraised as of the time of testator's death. Matter of Damis, 149 IST. Y. 539. The provisions of L. 1890, c, 553, exempting gifts to certain charitable, benevolent, etc., corporations from the legacy tax do not apply to a bequest to a foreign corporation. MatUr of Prime, 136 E". Y. 347. A special act of the legislature authorizing a missionary nssocia. tion on incorporated in another state to take and hold within certain limitations, real and personal property in this state, will not bring such corporation within the exemption of the act of 1890. Id. The amendment of the Collateral Inheritance Tax Act by L. 1891, c. 215, which amended the first section of the act of 1885 as already amended by the act of 1887, did not repeal the pro- visions of the amended act so as to prevent the subsequent institution of proceedings thereunder to tax the estate of a decedent previously dying. Matter of Prime, 136 N. Y. 77. Such real property cannot be made subject to taxation by the application of the doctrine of equitable conversion. Id. The Collateral Inheritance Tax Act of 1885, §§ 13, 15, conferred upon the surrogate the powers of an assessing and taxing officer ; and the state was, therefore, bound by his determina- tion in relation to the tax. Matter of Wolfe, 137 IST. Y. 205. ^ A fiscal officer to whom the tax was payable was not a person ' interested in the property to whom notice was required to be given. Id. The question of exemption from such tax could be determined by the surrogate in the proceedings for assessment. Id. 2224 Collateral Inheritance Act — Common Schools. Collateral Inheritance Act — Continued. The tax is upon every interest, immediate or future. Matter ofStewm-t, 131 N. T. 2T4. Euture contingent interests created by will may be taxed. Id. The estate of a beneficiary under power of appointment may be taxed. Id. "Where the question is whether a certain subject of taxation is embraced within a statute, it should be construed in favor of the citizen. Id. That construction should be given which will effectuate the legislative intent. Id. An executor is not prevented hj service of citation from paying balance due on collateral inheritance tax. Id. Collateral Securities ; See Debtor cmd Creditor ; Pledge. Commissioners of Highway ; See Highways. Commissioners of Land Of&ce ; See Board of Cladms. Commission Merchants ; See Factor. Commissions ; See Executors ; Practice / CMbs ; Trustees. Commitment ; See Orvmmal Lam. The adjudication of a police justice upon proofs submitted to him cannot be questioned on haheas corpus. People ex rel. ProtestaM Eptscopal House of Mercy, 133 N. Y. 207. Immaterial defect will not invalidate a commitment. Id. Commitment under Laws 1886 (chap. 353), held sufficient. People ex rel. Da/nziger v. Protestam,t Episcopal House of Mercy, 128 N. Y. 180. What traverse of the return controverts the facts on which jurisdiction of magistrate rested. Id. Common Schools. In determining to erect a school-house, a majority of those actually voting is sufficient. Smith v. Proctor, 130 N". Y. 319. Statute gives power to boards of supervisors to form school dis- tricts outside of cities. People ex rel. Strouqh v. Covm,inj Camvassers of Jefferson, lf3KY. 84. J ^ ^ The imposition of a fine upon a school teacher by the board of education is unwarranted as being a punishment and contrary to statute. People ex rel. Hoffman v. Board of Education, 143 N. Y. 62. Common Schools — Confession of Judgment. 2225 Common Schools — Continued. Action of school commissioners is not subject to review by comp- troller when legally performed. People ex rel. Crmdn v. Coffey^ 131 N. Y. 569. Compensation ; See Eminent Domain. The award of nominal damages only is proper where the lands taken are subject to easements of the same general nature as a highway. Matter of Adams, 141 N. Y. 297. Unless expressly so provided, the franchise of a water company does not give it the exclusive right to purvey water in the dis- trict where it is located. Matter of City of BrooUyn, 14'3 K Y. 596. Complaint ; See Pleading. Compromise ; See Accord and Satisfact/bon / Debtor amd Creditor. Comptroller ; See Taxation. Condemnation Proceedings. A street railroad must obtain the consent both of the legal au- thorities and the property owners before it can apply to the courts to condemn the right to use the tracks of another com- pany. Colonial City Traction Co. v. Kingston City P. P. Co., 153 N. Y. 540. Consents given by property owners to the construction and opera- tion of a street railroad do not include the use of the tracks by another company. Jd. Section 382, subdivisions 2 and 3 of the Code do not apply to a pro- ceeding by an owner to recover compensation, where the puhlic authorities have taken no steps to ascertain the damages. Matter of ClofrTc v. Water Comr''s of Amsterdam,, 148 N. Y. 1. The Court of Appeals cannot hear an appeal from the order con- firming the report of commissioners m condemnation proceed- ings. Matter of BrooUyn EL P. P. Co., 147 N. Y. 344. A question of law is raised by an objection that commissioners considered a tract of land with three separate buildings as three parcels instead of one. Id. An appeal lies at the Court of Appeals from an order of General Term reversing order affirming an award of commissioners. Matter of Cla/vh v. Water Com/r's of Amsterdam,, 148 N. Y. 1. Conditions ; See Contracts ; Deeds ; Insurance Sales. Confession of Judgment ; See Judgments. 2226 Conflict of Laws — CoNSPiRAcy. Conflict of Laws ; See Foreign Judgments ; Foreign Laws. Under what circumstances the courts of this state should deny authority to the decisions of the courts of another state. Teel V. Yost, 128 N. Y. 387. "When parties cannot be heard to re-litigate questions in another state in suit on judgment here. Id. The operation of a judgment within a state cannot be questioned by foreign states. Williams v. Williams, 130 N". Y. 193. The laws of Maine govern, when an offer to purchase goods is made in that state, although the acceptance is mailed here. Wilson V. Lewiston Mill Co., 150 N. Y. 314. A disposition of personal property made in this state by a com- petent testator, in a valid testamentary instrument, to trustees in a foreign country, for the purposes of charity to be estab- lished in that country, is valid, if in pursuance of law of place where trust is to be executed. Hope v. Brewer, 136 N". Y. 126. The law of the place where a contract of affreightment is made determines the rights of the parties. China Mut. Ins. Co. v. Force, 142 IST. Y. 90. "Where relief would be granted in attachment to a citizen of this state to avoid an assignment made under the insolvent laws of another state, it will also be granted to a non-resident proceed- ing against a defendant having the same domicile as the plain- tiff by attachment in this state. £a7^th V. Backus, 140 K Y. 230. The citizens of this state have the same liberty to proceed in another jurisdiction in hostility to assignments made here as non-residents have to attack here assignments valid in their state. Id. Consignor and Consignee ; See Carrier ; Factor. Conspiracy ; See Criminal Law. Where a verdict against some of the defendants is accepted, no further action can be had against the others. Lockwood V. Bartlctt, 130 N. Y. 340. "What is sufficient evidence to establish conspiracy and enable the party furnishing goods to recover therefor. Clarh V. Exchange Printing Co., 148 N. Y. Y21. "What evidence may be given to prove conspiracy. People V. Peckens, 153 N. Y. 5Y6. "When acts and declarations of each conspirator are binding on the others. j^ Declarations of a confederate are admissible against the others. ' Upon the trial of an indictment of retail coal dealers of a city for conspiracy, in entering into a combination to raise the price Conspiracy — Constitutional Law, I. 2227 Conspiracy — Continued. of coal and to destroy competition, the judge charged that the agreement if proved was illegal, and if the jury found in- tent on the part of defendants, and that the price was raised in consequence of the agreement, the crime of conspiracy was established. Hdd, no error. People V. Sheldon, 139 K Y. 251. Held, also, that a refusal to charge that the raising of the price of coal was not in itself an overt act was not error. Id. If the jury have a reasonable doubt of the ability of accused to commit the conspiracy charged after hearing all the evidence, they may acquit. People v. McKane, 143 H". Y. 455. Constable ; See Towns. Constitutional Law; See Legislature i Plumbery Veterans , Vinegar. I. CONSTEUCTION OF CONSTITUTION. II. Rights Secuked by Constitution. III. Constitutional Requieements of Statutes. IV. SOVEEEIGN POWEES. Y. Municipal Coepoeations. YI. Conteol of Peivate Coepoeations. YII. Public Offices. YIII. General Powees of Legislatuee. IX. Relations of Federal and State Goveenments. L CONSTRUCTIOlSr OF CONSTITUTIOK The owner of private property claimed to be taken under a statute is the only person who can claim the statute is unconstitutional. Waterloo Woolen Mfg. Co. v. Sham.aham., 128 JST. Y. 345. An order of the Governor disbanding a military company does not come within the prohibition of article 11, section 5, of the State Constitution. People ex rel. Leo v. Hill, 126 N. Y. 497. Section 12 of article 6 of the new Constitution, prohibiting the increase or diminishing of compensation of judges or justices, is not retroactive. People ex rel. Follett v. Fitch, 145 N. Y. 261. A railroad policeman, appointed under section 58 of the Railroad Law, is a public ofBcer within the meaning of article 13, section 5, of the Constitution. Dempsey v. N. T. C. & H. R. E. R. Co., 146 IST. Y. 290. An annual pass over the railroad, which forms part of the police- man's compensation in pursuance of an agreement made prior to the adoption of the Constitution, is not a free pass. Id. 2228 CoNSTiTUTroNAL Law, I. Constitutional Law — Continued. A notary public is a public officer within the meaning of section 6 of article 13 of the revised Constitution. People V. Eathhone, 145 N. Y. 434. Such prohibition applies to the use of a pass which the officer received before such provision went into effect. Id. The provision of section 18 of article 8 of the Constitution of 1894, requiring the application for appointment of commissioners to determine whether a street railroad should be constructed, construed. Matter of Boa/rd of Bajpid Transit Railroad Com'rs, 147 ]Sr. Y. 260. In interpreting a provision of the Constitution, its history and the circumstances attending its adoption must be kept in view. Sweet V. City of Syracuse, 129 JST. Y. 316. Public property not appropriated by statute for private use does not require two-thirds vote of the legislature. Id. The word " appropriating " refers to a transfer of public prop- erty as a gift or gratuity. id. Article 6, section 9, of the Constitution, that " no unanimous deci- sion of the Appellate Division of the Supreme Court that there is evidence supporting or tending to support a finding of fact, shall be reviewed by the Court of Appeals," applies to special proceedings as well as to actions. People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417. The fact of a unanimous judgment or order of affirmance by the Appellate Division is a decision that there is evidence support- ing the findings of fact as expressed or necessarily implied. Id. The provision of the Constitution taking away the limit of recov- ery in actions for injuries resulting in death is not retroactive. Isola V. Weber, 147 K Y. 329. Section 9, article 5, of the Constitution as to competitive exami- nations is self -executing. Matter of Kexjmer, 148 N". Y. 219. Section 6, article 6, is self-executing, and no order is necessarv to transfer proceedings from the Oyer and Terminer to the Supreme Court. People v. Eoch, 150 JST. Y. 291. The provisions of section 9 of article 5 of the Constitution relative to civil service, construed. Chittenden v. Wurster, 152 K Y. 345. The Civil Service Laws of 1883 and 1895, held in harmony with the Constitution. Jd^ Section 14 of article 8 of the Constitution, that payment by cities to private charitable institutions may be authorized by the legislature, construed. People ex rel. Inebriates" Home v. Comptroller of Brooklyn, 152 N". Y. 399. -^ ^ ' The provision of the section that no such payments shall be made Constitutional Law, I, II. 222& Constitutional Law — Conti.Med. for any inmate not received and retained pursuant to rules established bythe state board of charities operates from the time such rules are adopted. Id. Section 153 of the Public Health Law as amended in 1895, con- strued. People V. HoAJoher, 152 N. Y. 234. The validity of a law is to be determined by its purpose, and its reasonable and practical eifect and operation. Forster v. Scott, 136 IST. Y. 577. Amendment to article 6, section 13, of the state Constitution, giv- ing certain justices of the Supreme Court, whose terms are abridged by reason of their attaining the age of seventy years, - their compensation during the balance of the terms for which they have been elected, construed. Gilbert v. Supervisors of Kings, 136 IST. Y. 180. It seems, that the sum fixed by such, board of supervisors is not permanent, and may be reduced at any time. Id. The provision of article 8, section 11, of the state Constitution,, limiting the indebtedness of cities of over 100,000 inhabitants, except the issue of bonds for water supply, and permitting bonds for that purpose, construed. City of Rochester v. QuimMrd, 136 N. Y. 221. The provisions of Laws 1892 (chap. 54, § 4), amending the charter of x onkers, and allowing a supervisor for each ward, to be elected in each, held, constitutional. People ex rel. Clcmcy v. Supervisors of Westchester, 139 N. Y. 524. The prohibition by the Penal Code of the employment of female children in theatrical exhibitions apply to all public exhibitions or shows, and is not contrary to the Constitution. People V. Ewer, 141 N. Y. 129. II. EIGHTS SECUEED BY CONSTITUTION. A statute which assumes to nullify a final and unimpeachable judgment, destroys the fruits of the judgment, and is uncon- stitutional. Oilman v. Tucker, 128 N. Y. 190. Any law which prevents the enforcement or materially abridges the remedy for enforcing a contract is unconstitutional as affecting the obligation of a contract. People ex rel. Reynolds v. Common Council of Buffalo, 140 N. Y. 300. The payment of an award after confirmation cannot be defeated by the repeal of a statute which directs the establishment and manner of paying the award. Id. Chapter 602, Laws 1892, in relation to the examination and registration or employing of master plumbers, is constitutional. People ex rel. Nechamcus v. Warden of City Prison, 144 K Y. 529. 2230 Constitutional Law, II. Constitutional Law — Continued. The provisions of the General Village Act, as amended by chapter 694 of 1893 in relation to drawing of jurors to appraise damages for lands taken, is unconstitutional. People ex rel. Eokerson v. Trustees of Hmerstraw, 151 K Y. T5. . . , The Albany Police Law, chapter 427 of 1896, is unconstitutional. Eathhone v. Wirth, 150 N. Y. 459. Chapter 148 of 1893, confirming the illegal proceedings in the board of supervisors of Essex county, is in contravention of section 18, article 3 of the Constitution. Williams v. Boynton, 147 N. Y. 426. Section 17 of article 3, is not violated by chapter 572 of 1895 amending section 351 of the Penal Code which makes pool selling a felony. Werner v. Yon Be Ca/rr, 150 N. Y. 439. The provisions of the Mechanics' Lien Law that actions there- under shall be tried in the same manner as actions for foreclosure of mortgages, is constitutional. ScMllinger Fire Proof Cement <& Asphalt Co. v. Arnott, 152 N. Y. 584. Statute making assessment of water rates without notice of hear- ing is unconstitutional. Matt&r of Trustees of Union College, 129 N. Y. 308. A subsequent enactment confirming a prior invalid act is not effective. Id. A tax apportioned without due notice is void. Id. The condition of the real property assessed is immaterial. Id. An act requiring proceedings to test the validity of an assessment, to be commenced within a year after delivery of the roll, is not retroactive. Id. Chapter 428, Laws 1885, authorizing the audit by the Board of Claims of the claim of the county of Cayuga for reimbursements of expenses for the trials of certain convicts for crimes committed in state prison, is not unconstitutional. Board of Supervisors of Cayuga Co. v. State, 153 IST. Y. 279. The claim of a county for reimbursement of the expenses of trials of convicts for crimes committed in state prison is not a private claim within the meaning of section 19, article 3 of the Con- stitution. Id. The limitation imposed by section 14, article 3 of the Constitution upon the audit and payment of claims does not begin to run until a tribunal has been constituted to hear them. Id. Section 20 of chapter 601, Laws 1895, authorizing the Court of Appeals to review an_ order convicting a party as a disorderly person, is not unconstitutional. People ex rel. Commissioners of Charities v. Cullen, 153 K Y. 629. ' Constitutional Law, II, III. 2231 Constitutional Law — Continued. Chapter 383, Laws 1896, authorizing tho seizure of any vessel used in disturbing oysters is unconstitutional. Colon V. Lish, 153 N. Y. 188. Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use or enjoyment, without legal process or compensation, it is unconstitutional. Forster v. Scott, 136 N. Y. 577. An act which authorized the city authorities to file a map of a proposed street, and provided that an owner of property to be taken could not recover any compensation for improvements subsequently made, is in violation of the Constitution. Id. An act requiring the payment of fines to commissioners of fisheries which would otherwise have been payable to the county treasurer does not deprive the county of money without due process of law, as such money is not the private property of the county. People ex rel. Huntington v. Crennan, 141 N. Y. 239. A provision, in an act authorizing the condemnation of land for park purposes, that the city may sell lands so acquired when- ever its board of park commissioners shall determine that they are unnecessary to be longer used for the purpose of the commission, does not make act unconstitutional. Matter of City of Rochester, 137 N. Y. 243. Even in criminal prosecutions the legislature may enact that when certain facts have been proved, they shall be prima facie evidence of the existence of the main fact in question. People V. Cannon, 139 N. Y. 32. III. CONSTITUTIONAL EEQUIKEMENTS OF STATUTES. Application of the rule that a general provision inserted in an act containing local provisions is valid, whether the subject is expressed in the title or not. Ferguson v. Ross, 126 N. Y. 459. What the title of a private or local bill may embrace, discussed. Van Brunt v. Town of Flaibush, 128 JST. Y. 50. The title of an act of the legislature was construed as to what the act contained. Id. A statute incorporating a society and authorizing it to take a gift under the will of a foreign testator already deceased, but which violated the statutes of this state, is valid where the gift was valid by the laws of the testator's domicile. Dammert v. Osborn, 140 N. Y. 30. New York Constitution, article 7, section 14, prohibits the allow- ance of any claim which as between citizens of the state would be barred by lapse of time. Statute in conflict with this provision discussed. Gates v. State, 128 N. Y. 221. So held of a claim for personal injuries received by a workman falling from a canal bridge. Id. 2232 Constitutional Law, III. Constitutional Law — Continued. A law relating to particularpersons or things of a class is a local law. Matter of East Ewer Bridge Co., 143 JST. Y. 249. "While a statute may be unconstitutional as embracing more than the one subject expressed in its title, and a j)art only could not be sustained, yet if it merely affects private rights and the party concerned acts under it without objection, he is taken to have waived the defect in the law. Mayor, etc., of IV. Y. v. Manhattan By. Co., 143 K T. 1. Legislature has power to insert necessary provisions in a public bill. Sweet v. City of Syracuse, 129 N. Y. 316. It is necessary that the title should indicate the subject. Id. A municipal corporation may issue bonds for a city purpose. Id. Permission to take water from a lake appropriated for canal pur- poses is not a sale of the canal or any part of it. Id. A statute permitting a city to use water of a lake not needed for the use of the canal is not unconstitutional. Id. Section 13 of the Liquor Tax Law does not appropriate money for local or private purposes within the meaning of article 3, section 20 of the Constitution, and the assent of two-thirds of the legislature is not necessary. People ex rel. Einsfeld v. Murray, 149 N. Y. 367. The Liquor Tax Law is not unconstitutional because it does not follow the classification of cities in article 12, section 2 of the Constitution. Id. A Liquor Tax Law is not a special city act and did not need to be submitted to the mayors of the cities affected by it. Id. Chapter 537 of 1893 is not in contravention to article 3, section 16 of the Constitution, in that it does not relate to more than one subject. People ex rel. Pv/rdy v. Fitch, 147 N. Y. 355. The amendments to the charter of the New York & Long Island Bridge Company contained in the Laws of 1885 and 1892 not germane to its title are unconstitutional and void. Hew York d; Long Island Bridge Company v. Smith, 148 N. Y. 150. Chapters 570, 671, 572 and 573 of 1895 can be treated as separate and individual acts in determining their constitutionality. Weaver v. Van Be Ca/rr, 160 E". Y. 439. The provisions of Laws 1892, chapter 342, to establish the " Muni- cipal Court of the city of Syracuse," held, constitutional. Curtain v. Barton, 139 N. Y. 505. Held, also, that it was not unconstitutional within section 16, article 3, prohibiting the passage of a local act embracing more than one subject. Jg_ A statute which amends an existing criminal statute by removing the minimum limitation of punishment is not objectionable as an ex post facto law. People v. Hayes, 140 N. Y. 484. An act authorizing the condemnation of property as a nuisance Constitutional Law, III, IV. V, VI. 2233 Constitutional Law — Continued. without a hearing, is constitutional where it does not provide that such hearing is final. People ex rel. Cqpcutt v. Boa/rd of Health, etc., 140 N. Y. 1. IV. SOVEEEIGN-POWEES. The provision of section 4 of chapter 516, Laws 1889, prohibiting the manufacture, sale or keeping or offering for sale of any vinegar containing any artificial coloring matter, was within the power of the legislature to enact. People V. Ovra^d, 145 N. T. 105. Chapter 823 of 1895 prohibiting barbering on Sunday is not unconstitutional. People v. Ila/onor, 149 N. Y. 195. Section 663 of the Consolidation Act, as amended by chapter 84, Laws 1887, requiring tenement-houses to be furnished by the owners with water on each floor, is a valid exercise of the polioepower. Mealth Depa/rl/ment v. Rector, etc., of Trvmiy Church, 146 N. Y. 32. Chapter 570 of 1895, section 17, in relation to making or recording a bet on a horse race, is constitutional. People ex rel. Stnirgis v. Fallon, 152 N. Y. 1. Chapter 570 of 1895 is not in violation of article 1, section 9 of the Constitution. People ex rel. Lawrence v. Fallon, 152 N. Y. 12. V. MUOTCIPAL COEPOEATIONS. Chapter 934, Laws 1895, annexing a portion of the county of Westchester to the city and county of New York, is constitu- tional. People ex rel. Henderson v. Svpervisors of Westchester Co., 147 K Y. 1. The provision of article 8, section 11 of the Constitution, prohibit- ing a county containing a city of over 100,000 inhabitants, or any such city, from becoming indebted to an amount, including existing indebtedness, exceeding ten per cent, of the assessed valuation of its real estate, is to be taken distributively. Adams v. Aast Ewer Sa/vvngs Inst., 136 N". Y. 52. "When a county containing a city of more than 100,000 inhabitants desires to create an additional debt, the ten per cent, limitation is not reached until the county debt equals ten per centum of the valuation of all the real estate in the county. Id. An appropriation of a portion of excise moneys to support a home for inebriates is not m violation of the Constitution forbidding the giving of aid to persons or associations by cities. White V. Inebriates' Home for Kvngs County, 141 N. Y. 123. VI. PEIVATE COEPOEATIOTTS. The acquisition of the property of a water company already in 2234 Constitutional Law, VI, VII, VIII. Constitutional Law — Continued. operatioa by a city is not unconstitutional as the proposed public use is of a larger scope than the former. 'J Matter of City of BrookVyn, 143 IST. Y. 5$6. Section 52 of the Banking Law is not unconstitutional as to stockholders who became such prior to its passage. Hirshfeld v. Bopp, 145 N. Y. 84. A street railway constructed and owned by a city after a failure of private enterprise to do so, is for " a city purpose," within the meaning of article 10 of the Constitution. Sun Printing c& Pub. Assn. v. Mayor, 152 IST. Y. 257. The scope of section 18, article 3 of the Constitution, prohibiting^ the passage of private or local bills granting to any corporation or association or individual the right to lay down railroad tracks, considered. Id- The Eapid Transit Acts do not contravene the provisions of article 8, section 10, or article 3, section 18, of the Constitution, and are valid. -Id. VII. PUBLIC OFFICES. One holding an office under a city government is ineligible for election to the legislature. People ex rel Sherwood v. Boa/rd of CoMvassers, 129 N. Y. 360. A certificate of election will not be issued to such person. Id. Chapter 60 of 1895, abolishing the office of police justice in New York city, is constitutional. Koch v. Mayor, 152 E". Y. 72. Section 179 of the Military Code as amended in 1896, as to the payment of wages of armorers by the county, is constitutional. Matter of Bryami v. Palmer, 152 N. Y. 412. Power of appointment of subordinates is still vested in the super- intendent of public works, subject to section 9, article 5 of the Constitution, requiring appointment to be made by a competitive examination. People ex rel. McClelland v. Roberts, 148 N. Y. 360. Additional legislation is not required to put said section in force, as the general Civil Service Law applies and covers the case. Id. VIII. GENERAL POWEE OF LEGISLATURE. A statute authorizing the supervisors of a county to build a local bridge is unconstitutional. People ex rel. Keene v. Supervisors of Queens, 142 N. Y. 271 . "Where a provision of the Code tends to restrict the jurisdiction conferred by the Constitution it is void. Ilynn v. Central R. R. of N. J., 142 N. Y. 439. The constitutionality of an act is not to be determined by the manner in which its provisions may be carried. People ex rel. Nechamous v. Warden, of Citnj Prison. 144 KY. 529. CONSTITTTTIONAL LAW, VIII. 2235 Constitutional Law — Continued. While the legislature cannot abridge the general jurisdiction of the Supreme Court, it may designate the place where surplus ' moneys arising from the sale of lands in foreclosure may be deposited. Matter of Stilhoell, 139 N. Y. 337. The purpose of Laws 1888 (chap. 325), to facilitate the passage of canal boats, is public, and does not require the assent of two- thirds of the members of each house of the legislature. The legislature is the judge of the propriety and utility of making such a statute. Waterloo Woolen Mfg. Co: v. ShoMaham,, 128 ]V. Y. 345. The provisions of N. Y. Const. 18, article 6, give power to the legislature to establish in a city an inferior local court of civil and criminal jurisdiction. Cwrtain v. Ba/rton, 139 IS". Y. 505. Where property outside a city is to be condemned for the use of the city, the legislature has no power to delegate the determina- tion of the question of compensation to a court whose juris- diction does not extend beyond the city limits. MatUr of City of Buffalo, 139 K Y. 422. The jurisdiction of the Superior Court of Buffalo, held, not to extend beyond the city. Id. The amendment of the Constitution in 1869, articles, 6, 12, held, not to authorize the legislature to extend the territorial juris- diction of the local courts mentioned therein. Id. The legislature has the right to enlarge the time in which a claim in any particular case might be filed. Parmenter v. StaU of N. T., 135 IST. Y. 154- When under the provision of articles 7, 14, of the Constitution . against the allowance of claims against the state, an act authoriz- ing the Board of Claims to hear and determine a claim against the state is valid. Id. The legislature has power to enact a general law regulating the compensation of laborers employed by the state which disturbs no vested right. Clark v. State, 142 N. Y. 101. The provisions of the Code permitting a physical examination of plaintiff in an action for personal injuries enacts a rule of procedure, and does not violate any express or implied constitu- tional restraint upon legislative power. Lyon V. Manhattan By. Co., 142 IST. Y. 298. A statute which confirms the common-law power inherent in criminal courts of suspending sentence in certain cases is a valid exercise of legislative power. People ex rel. Forsyth v. Court of Sessions of Monroe, 141 K Y. 288. An act permitting women to vote for school commissioners is unconstitutional. Matter of Gage, 141 N. Y. 112. A second apportionment will not be set aside upon the ground 2236 Constitutional Law, VIII— Contempt. Constitutional Law — Continued. that aliens were not excluded, where the objection was not pre- viously presented and it is not shown that any inequality re- sulted. MatUr of Whitney, 142 JST. Y. 531. In apportioning a county into assembly districts, irregularity in the shape of a district does not of itself establish inconvenience in violation of the constitutional requirement. Matter of Baird, 142 N. Y. 523. It is not necessary that the board of supervisors should secure absolute equality of population in apportioning districts so long as no erroneous rule is adopted. Id. Where the apportionment does not indicate such a manifest abuse of discretion as to amount to an evasion of the law, the courts cannot interfere. Id. City wards may be divided in the formation of assembly districts, but not towns. Id. IX. RELATIONS OF FEDERAL AND STATE GOYERlSr- MENTS. The act to authorize the drainage of marsh lands, chapter 844, Laws 1868, is contrary to the provision of the Federal Con- stitution giving Congress exclusive power to regulate commerce. Coxe V. State, 144 IST. Y. 396. The provision in the Federal Constitution that " no state shall enter into any treaty, alliance or confederation " (art. 1, § 10), prevents a state from negotiating with the Indian tribes for the extinguishment of the Indian title to land. Seneca NalAon of Indians v. Christie, 126 N. Y. 122. Such a dealing is not a treaty in the constitutional sense. Id. The power conferred upon Congress by subdivision 15, section 8, article 1 of the Federal Constitution, as to arming of militia, does not exclude state legislation upon the same subject unless the power conferred on Congress is actually exercised. People ex rel. Leo v. Hill, 126 N. Y. 497. The order of the commander-in-chief of this state disbanding a company under authority of the state statute is not in contra- vention of the Constitution. Zd. Power to disband may be found in section 1630 of the United States Revised Statutes. /^. Construction ; See Contracts; Deeds ; Instruments; Statutes; Wills. Contempt ; See Constitutional Law. A judgment recovered by a receiver is not a proper subject for proceedings for contempt. Taber v. Jach, appeal dismissed, 128 N. Y. 592. Contempt — Conteacts. 2237 Contempt — Conntiued, Advice of counsel does not protect a party for violating an injunc- tion. Cicuncimmo^s Towing and Trcmsportation Ccmvpany v. Giancimino, 133 N. Y. 672. A court cannot punish as a contempt the interposition of a false verified ansvs^er. Fromme v. Oray, 148 N. T. 695. In proceedings for criminal contempt the final mandate must state the particular circumstances of the offense. People ex rel. Barnes v. Court of Sessions, 147 N. Y. 290. Section 725, United States Eevised Statutes, applies to the Supreme Court of the District of Columbia, and limits its power to punish for contempt to fine or imprisonment. Rovey v. Elliott, 145 IST. Y. 126. Adefendant, disobeying an injunction order, is properly punished for contempt, unless the order was void upon its face for an entire lack of jurisdiction. People ex rel. Cauffmam, v. Yam, Buren, 136 N. Y. 252. "When for violation of an injunction order, restraining the disposi- tion of property, which plaintiff seeks to subject to an attach- ment, defendants are properly fined the amount of plaintiff's judgment. People ex rel, CoAiffmam v. Van Bwrem,, 136 N. Y. 252. To warrant punishment for contempt in disobeying judgment, the mandate must be clearly expressed so that it may appear with reasonable certainty that the person has violated it. Ketohwm v. Edwards, 153 N. Y. 534. What judgment will not warrant punishment for contempt. Id. One who does an act with knowledge that the court has decided to restrain the doing thereof is guilty of contempt. People ex rel. Piatt v. Bioe, 144 IST. Y. 249. An order loses none of its binding force pending an appeal there- from. Id. A notice served subsequent to the institution of proceedings for contempt, specifying the punishment which would be demanded, does not deprive the court of power to fix nature of offense. People ex rel. Piatt v. Eice, 144 N. Y. 249. A party who neglects or disobeys an order after appealing there- from cannot claim want of jurisdiction. People ex rel. Piatt v. Bioe, 144 N. Y. 249. Contracts; See Bills and Notes ; Sales; Statute of FroAids ; Ven- dor and Purchaser / Wa/rra/ni/y. I. Assent and Affirmance. II. Consideration. III. Construction. lY. Performance. 2238 Contracts, I. Contracts — Continued. Y. "What Excuses Peefoemance. VI. Remedy foe Non-Peefoemance. YII. Eecision. YIII. Validity. I. ASSENT AND AFFIEMANCE. A subsequent agreement may be made between two parties after execution of original contract. Bogers v. Wileij, 131 N. T. 527. Acceptance of an offer may be inferred from conduct. Id. A combination of business formed as an illegal trust becomes exe- cuted when perfected. UnoMes v. Colgate, 148 N. Y. 529. One who has an interest in an illegal trust and endeavors to pre- vent a reorganization in legal form has no actual right to re- cover from the trustees the profits claimed to have been made. Id. "When a junior assignee of moneys under a municipal contract cannot avail himself of the provisions of the contract forbid- ding an assignment similar to his. Forttmato v. Patten, 147 N. Y. 277. When an agreement by manufacturers to furnish to a committee the material for a display of fireworks, sending a man to take charge, is a sale. WylUe v. Balmier, 137 N. Y. 248. The question whether a party assented to the terms of a pro- posed agreement which are telegraphed to him in a general way, and which he refuses to sign, is for the jury. Stokes V. MacTmy, 140 N. Y. 640. "Where all the elements of a complete contract are contained in letters and telegrams exchanged by the parties, the contract is binding upon both. Sanders et al. v. PottUtzer Bros. Fruit Co., 144 N. Y. 209. A written agreement controls and is superior to a prior oral agreement. A reformation of the instrument can only rectify a mutual mistake of the written instrument. Lvntow V. Unexcelled Fi/reworks Co., 128 N. Y. 672. So held in an action by the superintendent of a manufacturing corporation. Jd. "Where evidence is contradictory a contract apparently full and drawn with great care will not be reformed on the ground of mutual mistake. Allison Brothers Go. v. Allison, 144 N. Y. 21. A party to a contract, while retaining the fruits thereof, cannot have it reformed. Harlech v. Pwpin, 145 N. Y. 70. "Where entire performance by one party is a condition precedent to the promise of the other, the contract is entire. Ming v. Corlim,, 142 N. Y. 334. Contracts, I, II, III. 2239 Contracts — Continued. Where the performance by one party consists of several distinct items and the price paid by the other is to be so apportioned, the contract is severable. Id. "Where the parties intend the performance on either side in part and not to be taken as entire, it will be deemed to have been severed. Id. II. CONSIDEEATION. Agreement held, not upon its face to express an agreement which was void as intended to improperly influence legislation. Mitbamk v. Jones, 12T N. Y. 3Y0. An agreement to withhold suit is a good consideration to support a promise by a third person to pay a debt. Trader i Nat. M. v. Parker, 130 N. Y. 415. Where no definite time for paj'ment is fixed upon, the agreement binds the creditor not to sue within a reasonable time. Id. A making of a note by a debtor of a corporation at the request of one of its officers in order to raise money with which to pay the maker's debt to the corporation furnishes no consideration for the promise by the officer individually to renew the note. Arend v. Smith, 151 N. Y. 502. Held, also, that it was conclusive as to the legal and proper ex- penses of administration assumed by defendant. Id. Held, also, that the cost and expenses incurred in the executor's unsuccessful defense to a demurrer interposed by defendant could not be included. Id. When defendant agreed to pay all the debts allowed or legally established against the estate of a decedent, the decree entered upon the judicial settlement of the executor's accounts, to which defendant was a party, as to amount of debts was conclusive. Lamrence v. Church, 128 N. Y. 324. III. CONSTRUCTION. A contract for the conditional sale of the plant of a factory pro- viding that " said machinery shall be the property of pur- chaser until paid for," includes the working patterns. Brewer v. Ford, affirmed without opposition, 126 N. Y. 643. A contract for the payment of $5,000, " which sum is hereby named as stipulated damages to be paid," construed as for the payment of liquidated damages, and payable upon the violation of the terms of the agreement. Tode V. OrosH, 127 N. Y. 480. Under a general obligation to maintain and support another, the beneficiary may live any place. McArthur v. Cordon, 126 N. Y. 597. It seems that the rule is subject to exceptions. Id. 2240 Contracts, III. Contracts — Continued. Peculiar terms of declaration of trust for support of incompetent person out of proceeds of a farm conveyed to the trustee. Action against bank in Tennessee for proceeds of check duly col- lected by it in Texas, held, contract was to be performed in Texas and New York, and law of Tennessee did not obtain or govern. St. Moh. Bh. v. StaU Nat. BrniTc, 128 IST, Y. 26. A reasonable interpretation should be given to the terms of a con- tract. Wright Y'Rensens, 133 K Y. 298. A party failing to perform terms of an agreement cannot ter- minate the contract. Id. An agreement between two parties to dispose of the goods of an- other and divide the profits between all the parties, is a joint contract. Drexel v. Pease, 129 N. Y. 96. One who holds as security an interest in a patent is not joint con- tractor. Barry v. Colville, 129 N. Y. 302. A person who is to receive for his services a certain portion of the profits is not a joint contractor. Jenkins v. Dean, 130 N. Y. 2T5. The practical construction put upon a contract by the parties is often most conclusive as to its meaning. mcoU V. Sands, 131 N. Y. 19. The acceptance of performance of a contract may be observed in its interpretation. Id. A collateral agreement, fair on its face, will not invalidate a con- tract. Id. When an offer to purchase goods in Maine, an acceptance is mailed in this state, the contract is to be governed by the laws of Maine. Wilson v. Lewiston Mill Co., 150 N. Y. 314. Contract regarding real property is to be construed lex rei sitcB. Angell v. Van Schaick, 132 N. Y. 187. "When a definite meaning is conveyed by the language and no ambiguity exists in the different parts of the contract, the ap- parent meaning must be regarded as the intended one. Schoonmaher v. Hoyt, 148 N. Y. 425. An assignment of a contract for sale of wood on certain land for a conveyance of other lands, considered and construed. Id. The apparent meaning of a written instrument must be regarded as the intended one when the language is unambiguous. Christopher cfe Tenth St. B. B. Co. v. TwenMi-thvrd St. R. Co. 149 ]Sr. Y. 51. A building contract providing for monthly payments " of the esti- mated value of the work performed on the building," construed. Smith V. Molleson, 148 IS". Y. 241. A deed of lands supersedes a contract for the sale of the same lands, and the contract remains in force only as to provisions the deed does not contain. ScJioonmaker v. Hoyt, 148 N. Y. 425. A contract for the manufacture of specified dies used in making Contracts, III. 2241 Contracts — Continued. gas-burners does not require that such dies should make a com- plete burner. JE. W. Bliss Co. V. United States Inccmdescent Gas Light Co., 149 K y. 300. A manufacturer is not required to do more than to give notice that goods are ready for inspection, when no place of delivery- is named in the contract and the guaranty of payment provides that no delivery shall be made vs^ithout direction from guarantor. Id. The contract providing for monthly payments on account upon estimates by the engineer, held, that an opinion of the engi- neer that the contract allowed equitable cross-sections in ex- cess of the amount of excavation required for the tunnel and its lining, together with payments for some months in ac- cordance with that view, did not bind the city to the allow- ance and that contractors could not retain the excess. O'Brien Y.Mayor, etc., of JST. T., 139 N. Y. 534. Though the contract provided for extra work upon the condition that it was authorized by the aqueduct commissioners in writ- ing, with a certificate that it was for the public interest, held, that the contractors could not recover for work directed by the commissioners to remedy defects. Id. The statute limiting the liability of the city to the terms of the contract, held, that the contractors could not recover for extra cost claimed to have been caused by erroneous grades. Id. Held, also, that to entitle the contractors to avail themselves of the fact that they had received no final certificate, they must show that there was no amount due above what they had received. Id. An architect's certificate made after the commencement of an ac- tion does not affect its admissibility in evidence when the con- tract does not make the certificate an indispensable condition of maintaining the action. Oillies V. Manhattan Beach Improvement Co., 147 IST. Y. 420. An agreement by joint" purchasers of land to pay broker who ne- gotiated the purchase a certain sum per acre, construed. Johnson v. Sirrett, 153 N. Y. 51. Parol evidence is admissible to show that the person who made the contract was an agent and not a principal. Brady v. Nally, 151 N. Y. 258. When the fact that the contract was for one year was established by the pleadings. Solomon v. Vallette, 152 N. Y. 147. Circumstances under which held that there was no agreement on the part of licensee to furnish the inventor with means of mak- ing and continuing experiments. Berry Harvester Co. v. Walter A. Wood Mowing <& Reaping 141 Machine Co., 152 N. Y. 540. 2242 Contracts, III. Con tracts — Continued. When a beneficiary cannot be heard to attack the authority of executors to enter into a contract setting apart real estate as part of the trust funds. Stevens v. Melcher, 152 N. Y. 551. A contract making the decision of the architect final as to the construction and meaning of the drawings and specifications, held, not to make him final arbiter of the question as to whether the work was done according to contract. SohilUnger Fire Proof Cement S Asphalt Co. v. Arnott, 152 N. Y. 584. What may be considered as an admission by a contractor that a subcontractor has substantially completed his work. Id. Where a patent is used for a purpose not embraced in the con- tract permitting its use, but such use is made with the patentee's consent, he is entitled to recover the reasonable value thereof. Griffin V. White, 142 E'. Y. 539. Where plaintiff having charge of the work was to be paid out of the surplus, he is not entitled to his commission where the work results in a loss. Carnp v. Trecm.or, 142 IST. Y. 478. The natural sense in which words are used always prevails over punctuation and capitals. Kinkele v. Wilson, 151 E. Y. 269. The general rule which excludes evidence of parol negotiations which tend to contradict a written instrument applies only in controversies between the parties to the instrument. Hankinson v. Vantine, 152 N. Y. 20. Parol evidence inadmissible to vary a written instrument may be admitted unless objected to. Brady v. JVally, 151 JS". Y. 258. Parol evidence is admissible to prove the purchase price agreed up- on even though the memoranda contains figures which might be deemed such purchase price. Fmmett v. Penoyer, 151 IS". Y. 564. A contract will be construed according to the law of this state where the record in an action upon a foreign contract does not show the law of that state. Bath Gas Light Co. v. Claffy, 151 JST. Y. 24. An agreement for the use of an invention upon machines manu- factured and for the payment of a royalty is not so entire that a previous judgment exhausted the whole right of action upon the contract. Skinner v. Walter A. Wood Mowing <& Beapinq Machine Co., 140 K Y. 217. One party to a tripartite contract cannot take advantage of a stipulation, express or implied, which runs only between the other two parties. Jg, When language is used which does no more than express in terms the same obligations which the law raises from the facts of the transaction itself, the party using the language is no further bound than he would have been without it. Young v. Learn/, 135 N. Y. 569. CONTKACTS, III. 2243 Contracts — Continued. When the rule of construction that where a general intention is expressed and also a particular intention incompatible there- with, the latter may be considered in the nature of an excep- tion, does not apply. Spqford v. I'earsall, 138 N. Y. 57. A provision in a written contract for sinking the iron piles of a bridge, that the contractor agrees " to put all iron in place in thirty days after sufficient iron has been delivered, and provided that the iron is delivered in regular order and quantity, and that the floor is laid as fast as required for the erection of the iron." Case v. Phcenix Bridge Co., 134 IST. Y. Y8. A provision in a dissolution agreement between partners that they will "continue to hold as tenants in common " a particular debt due the firm, merely continues their interest. Preston v. Fitch, 137 N. Y. 41. A further provision on the part of one partner to assume liabilities, does not apply to his disbursements subsequently incurred as surviving partner. Id. Effect of stipulation on a contract to construct a section of the new Croton aqueduct under Laws 1883, chapter 490, considered. O'Brien v. Ma/yor, etc., ofN. T., 189 N. Y. 543. A provision in a contract for state legislative printing that " It is further understood and agreed that in the event of an extra session of the legislature the said work shall be done and ma- terials furnished for the prices stated in detail in the alternative bid annexed ; and the same prices shall also be paid for any work and materials ordered, not for the use of the legislature," construed. Parmenter v. State of N. Y., 135 S". Y. 154. Where a plaintiff rests upon his contract and claims a liability in the defendant to make payments by force of its terms, it is com- petent for the defendant to show that the contract has been mutually rescinded. Brusie v. Peck Bros. c& Co., 135 N. Y. 622. The object of the law in tolerating some contracts in restraint of trade is to secure the purchaser of the goodwill of a trade or business a guaranty against competition of the former pro- prietor. Greenfield v. Gilmam,, 140 N. Y. 168. An agreement made with a former partner not to practice medicine or surgery within prescribed limits is not broken by attendance with other physicians upon a dying person for which no fee was charged. - Id. An agreement not to engage in the occupation of a pharmacist does not preclude a party from engaging in the occupation of a physician. Id. . An agreement for permission to occupy part of a store to carry on a business is broken by such a change as renders such occu- pation impracticable and unprofitable. DicUnson v. Hart, 142 IST. Y. 183. To make a contract a personal one, requiring individual perform- 2244 Contracts, III, IV. Contracts — Continued. ance by the contracting party, the contract must itself show- that a personal confidence was reposed. Nixon V. Zt(/ricalday, 144 JST. Y. 300. An agreement to allow certain persons a rebate if they purchase a specified amount of goods at an auction sale is not a personal contract. Id. The use of the trolley system by one of the parties to an agree- ment between railroad companies as to the use of tracks is not the use of steam as a motive power. Prospect Park & Coney Islcmd P. P. Co. v. C. I. & B. P. P. Co., 144 K Y. 152. The giving of a lease of all its franchises by the owner of the tracks to a rival of the other party to the agreement, does not justify a breach of the agreement by the other party. Id. A contract for the purchase of railroad. ties, "to oe counted and paid for before put in the river," discussed. La/rrowe v. Lewis, 128 IS". Y. 593. A provision permitting a person to act as superintendent of work to be done does not authorize him to alter the component parts nor depart from the plans. Fitzgerald v. Morcm, 141 N. Y. 419. Provision in a contract for the sale of land that " said property shall be free and clear from all incumbrances and right of dower except an incumbrance of $5,800, to be cleared at time of delivery of deed," is not ambiguous. House V. Walcli, 144 N. Y. 420. Parol evidence is not admissible to explain or limit the word " incompatibility " used in a contract of employment. Gray v. Shepard, 147 IST. Y. 177. An assignment by a debtor of certain claims in his favor does not operate in favor of a creditor as to notes discounted after the date of the assignment. Pendergast v. Greenfield, 127 N. Y. 23. The rule that no claim in respect to performance can be made after a recision of the contract while in the course of perform- ance does not apply where the agreement of recision expressly or impliedly reserves such claim. Mayor v. New York Pefrigeratvnq Construction Co.. 146 N. Y. 210. IV. PERFOEMAlSrCE. The rule which requires the prompt rejection of goods that do not conform to the terms of an executory contract does not apply to the manufacture of articles from materials furnished to the manufacturer by the other party to the contract. Mach V. S7iell, 140 K Y. 193. Mere retention after delivery and failure to offer to return after Contracts, IV, V. 2245 Contracts — Continued. discovery of defects is no answer to the defense that the manu- facturer has not performed his contract. Id, It is proper to admit in an action upon a contract evidence of a waiver of performance. Thomson v. Poor, 14Y N. Y. 402. A substantial performance of the terms of an agreement is suffi- cient. Oherlies v. PuUinger, 132 N. Y. 598. An agreement not to enter into the same line of business is not violated by the promiser engaging in a business requiring material formerly made by him. BugTc v. Rvfigler, 129 N. Y. 656. The termination of a contract cannot be made by party acting in bad faith. Johnson v. Union Switch cb Signal Co., 129 IST. Y. 633. A party is not in default who has obtained an oral consent to an extension of time for the performance of a contract. Thomson v. Poor, 147 N. Y. 402. Performance is not excused by the act of a party which does not enable him to observe the terms of a contract. Wells V. Alexander, 130 N. Y. 642. If a notice was requisite to the proper performance of a contract, the court would infer the existence of a covenant to give such notice. Id. It is not a breach of contract to refuse to deliver an installment of goods until prior installments are paid for, when contract provides for such payment. Paabe v. Squier, 148 JST. Y. 81. "Where the contract called for first-class material and there was a failure to substantially perform, judgment cannot be recovered. Boughton v. Smith, 142 N. Y. 674. "Where plaintiff contracted to build a house and charge at the cost for which he received vouchers, the vouchers furnished were prima facie evidence to show performance. Blaso V. Gill, 143 JST. Y. 232. "What facts do not justify abandonment of work under contract to excavate and dredge. Cronin v. Tebo, 144 N. Y. 660. Y. WHAT EXCUSES PEEFOEMANCE. A party is released by failure of contracting party to observe terms of agreement. Thomas v. Stewart, 132 N. Y. 580. One undertakmg the performance of work is held to a knowledge thereof. Id. A refusal of an architect based on an unreasonable requirement is no protection to the owner. Id. A party is released from a contract by the offer of terms chang- ing it as first agreed upon. Bernstein v. Mech, 130 IST. Y. 354. A subcontractor is excused from performance when the subcon- tract was made without owner's consent and he interferes with subcontractor. Dolam, v. Rodgers, 149 N. Y. 489. 2246 CONTKACTS, V. Contracts — Continued. Failure of a party to a contract to carry out his agreement to deposit bonds in order to enable another party to a con- tract to purchase stock, considered. Stokes V. StoTces, 148 N. Y. T08. Where the court finds there was no omission in an a,ction to reform a contract alleged to have been made by mistake, a refusal to allow an amendment to the complaint is harmless. Christopher d; Tenth St. E. B. Co. v. Twenty-third St. E. Co., 149 E. T. 51. A party signing a blank form is not bound by the obligations sub- sequently written therein unless it is shown that he gave the person who wrote it authority. Eicha/rds v. Day, 137 IST. Y. 183. "Where the vendees of goods, consenting to the sale, waive full performance. Brady v. Cassidy, 145 N. Y. 171. Failure to pay an installment due upon a construction contract absolves the contractor from further performance while the default continues, though it does not entitle him to re- cover prospective profits. Wia/rton d; Co. v. Wench, 140 N. Y. 287. The contractor may at once rescind and recover for materials furnished and services rendered. Id. Or he may proceed with performance, and at the same time bring suit to recover the past due installment. Id. Prospective profits may be recovered, Avhere the employer aban- dons the contract, but the contractor does not, as damages. Id. A contract which guaranteed the payment of dividends for a period of seven years is terminated by the dissolution of the corporation, in an action by the attorney-general for which neither party was responsible. Lorilla/rd v. Clyde, 142 N. Y. 456. "Where the parties seeking to enforce the guaranty, themselves procure the action to be brought for dissolution, and the grounds alleged are not in violation of the public interest, they cannot avoid the effect of such dissolution upon the ground that it was brought about by defendant's own misconduct. Id. The death of a person, or the destruction of a thing upon whose continued existence the performance depended, puts an end to the obligation. j^ Substantial performance must be established in order to entitle the party claiming the benefit of a contract to recover. Miller v. Benjamin, 142 N^. Y. 613. "Whether, in a particular case, defects or omissions are substantial or not, is generally a question of fact. /^ Where goods slightly differing from the order were delivered" and, upon thoir return, other goods of the proper grade were Contracts, \ , VI. 2247 Contracts — Continued. sent, and it did not appear that any damage resulted, a finding of performance is warranted. Id. VI. EEMEDY FOE NON-PEEFOEMANCE. The measure of damages for a breach of contract of sale of per- ishable goods is the difference between the cost of manufacture and the contract price. Todd v. Gamlle, 148 N. Y. 382. Where a contract for board- and lodging provides that there shall be " no deduction in case of absence," the measure of damage is the contract price. Wilkinson v. Demies, 146 I^. Y. 25. Action will not lie against assignee of patent whose assignor covenanted not to license but to manufacture article in favor of license. Mayer v. Hardy, 127 IST. Y. 125. A contractor can only recover an increased expense by showing tha,t an authorized deviation rendered the work more expensive, and his recovery should be limited to the difference. ISTason Mfg. Co. v. Stephens, 127 ]S(. Y. 602. When a party who performs services, though work is not com- pleted in the contemplated manner, may recover for services in connection with the reorganization of a railroad. BahUtt V. GiUs, 150 N. Y. 281. What qualities a contract must have to authorize a court to de- cree specific performance. Stokes v. Stokes, 148 N. Y. 708. Measure of damages for breach of contract discharging employe who has a contract requiring a week's notice and a week's extra pay. Watson v. Bussell, 149 IST. Y. 388. A contract for the sale of stock, on condition of non-interference of the court with contemplated increase of capital stock, upon non-fulfillment of the contract or prevention of conditions en- titles vendee to consider contract as of no effect and recover the purchase money. Zovell v. Jacobs, 150 IT. Y. 84. Proof of mistake must be of a most substantial character to au- thorize reformation of a contract. Christopher & Tenth St. B. JR. Co. v. Twenty-thi/rd St. R. Co., 149 ]Sr. Y. 51. A contractor has no action against a city for damages for delay caused by the rejection of materials. Montgomery v. Mayor, 161 N. Y. 249. It seems that an owner, who agrees with the contractor to fur- nish materials, or within certain time to perform certain con- struction which is necessary to the performance of the work by the contractor, is liable for delay in such construction. Case V. Phoenix Bridge Co., 134 N. Y. 78. Breach of contract by contractors does not authorize the owner to pay any amount he may choose for the work, and hold the contractors for the excess. Oha/rlton v. Scoville, 144 IST. Y. 691. 2248 CONTEACTS, VI, VII, VIII. Contracts — Continued. When specific performance of a contract will not be refused on the ground that there is a change of conditions, which unfavor- ably affects one of the parties. Prospect Park & Coney Islcmd R. E. Co. v. C. I. <& B. R. E. Co., 144 N. T. 152. The proprietor of a cheese factory is not liable for damages to his customers, from the destruction of milk and cheese through fire which destroyed the factory, in the absence of negligence. Stewart v. Stone, 127 W. Y. 500. VII. RESOISSIOJST. One who attempts to rescind a transaction, on the ground of fraud, is not required to restore that which in any event he would be entitled to retain, either by virtue of the contract sought to be set aside, or of an original liability. Kley V. Eealey, 127 IST. Y. 556. "What facts do not constitute a rescission of a contract, and what constitutes a ratification of a prior contract, to avoid claim of duress. Oregon Pacific E. E. Co. v. Forrest, 128 IST. Y. 83. When a contract for the sale and delivery of goods has been rescinded, it is not reinstated by subsequent deliveries. DeKlyn v. SiVoer Lake Ice Co., affirmed without opinion, 128 ]Sr. Y. 582. An annulment of a contract in pursuance of its terms is not a re- scission which destroys all rights of action. Mayor v. New York Eefrigerating Construction Co., 146 JSr. Y. 210. Where property is given in part payment of sale of goods, the buyer is entitled to its return upon rescission by the seller. Brewster v. Wooster, 131 N. Y. 473. In rescinding a contract a person is supposed to intend a severance of the contractual relation. Id. VIII. VALIDITY. An agreement not to communicate a recipe to any other person, or engage in the business of manufacturing or vending the articles in question for a period of five years, is not opposed to public policy as in restraint of trade. Tode V. Gross, 127 N. Y. 480. An agreement tainted with fraud is invalid. Molntyre v. BvsTL, 132 IST. Y. 192. A contract by an insurance adjuster to purchase damaged goods in his own mterest is not void. Id. During its existence the terms of a contract govern the action of the parties. Saltus v. Belford Co., 133 N". Y. 499. A contract for erection of buildings in the " immediate neighbor- hood " is not void for indefiniteness. Lewis V. Gollner, 129 N. Y. 227. Contracts, VIII. 2249 Contracts — Continued. An agreement which partially supplants a former agreement is valid. Goodsell v. Western Union Tel. Co., 130 N. T. 430. A notice of repudiation by a competent officer will justify a party in regarding a contract as broken. Id. An oral promise to pay without consideration is void. Tolhwrst V. Powers, 133 N. Y. 460. "What is not sufficient to take a parol agreement for sale of land out of the statute of frauds. Cooley V. Lodell, 153 N. Y. 596. Kesidence by a married woman with her husband is not such pos- session of the premises as will authorize an enforcement of his parol agreement to convey them to her. Id. Payment of the consideration is not alone sufficient to take a parol agreement for sale of real estate out of the statute. Id. Improvements must be substantial and permanent to take agree- ments out of the statute. Id. An agreement by owners of a building, to a contractor furnishing materials, to pay for materials out of moneys going to contrac- tor, if latter is not within the statute of frauds. Raale v. Squier, 148 N. Y. 81. An agreement between stockholders to keep their stock for cer- tain period, under certain conditions, is not void. Willicums v. Montgomery, 148 N. Y. 519. Contract held void as against public policy which deprived per- sons of employment unless they became members of a certain organization. Currcm v. Galen, 152 l!^. Y. 33. "When an instrument, procured by fraud, executed by a party in such a state of intoxication as to be incapable of consenting or contracting, is invalid as between the parties to the transaction. Page v. Krehey, 137 N. Y. 397. It seems that if the party actually signed the paper, though pro- cured to do so by fraud, and is chargeable witn negligence, he is liable to an innocent party. Id. Where competition threatens,, it is not illegal to persuade the competitor to abandon his enterprise and enter the business of another corporation at a fixed compensation. Oahes v. Catta/raugus Water Co., 143 IST. Y. 430. Contracts which provide for services in drafting a bill and explain- ing it to a legislative committee, or a member thereof, and to have it introduced fairly and openly are not illegal. Chesebrough v. Conover, 140 N. Y. 382. An agreement, made by a deputy sheriff on his appointment, to pay to the sheriff a part of the fees is void. Peyoe v. Woodworth, 144 N. Y. 448. When an executed contract is valid without a consideration, dis- cussed Oregon Pacific R. B. Co. v. Forrest, 128 N. Y. 83. 2250 Contracts, VIII— Conversion. Contracts — Continued. An action to affirm a contract, conceded to be illega.1 and to avoid the imposition of certain penalties, cannot be maintained. Pho&nix Bridge Co. v. Keystone Bridge Co., 142 IST. Y. 425. Such party might maintain an action upon disaffirmance to re- cover back moneys paid. id. An agreement by heirs of full age to hold the land inherited as joint tenants with right of survivorship, to be effected by devise on part of any who might dispose of their interests by will, is valid. Murphy v. WMtmy, 140 N. Y. 541. So long as the heirs may convey an absolute title it does not violate the statute against suspension of alienation. Id. An heir who has a remainder vested under such an agreement can maintain an action to enjoin a division of the property at- tempted b}^ the last survivor. Id. It is no objection that he was not a party to the agreement, it having been made for his benefit. Id. Contribution ; See Joint Debtor ; Ships and Vessels / Swrety. Controversy, Submission of ; See Practice. Conversion ; For Equitable Co7wersion, See Devise. Transfer to general assignee by debtor of goods covered by chattel mortgage void for want of refiling authorized assignee to recover goods from sheriff. Bowdish v. Page, 153 N. Y. 104. Demand by the assignee of a firm, and refusal, is sufficient basis for a suit for conversion of partnership property. Heald V. Yam, Siclen, affirmed without opinion, 128 N. Y. 612. A sheriff, levying on money in hands of assignee, though the latter draws the money from the bank and lays it upon a table, is liable for conversion. McAllister v. Batley, 127 N. Y. 583. An action for conversion cannot be maintained unless the plain- tiff is entitled to the immediate possession of the property. Deely v. Dwi.ght, 132 N. Y. 59. Such an action will not lie to enforce an equitable lien against the owner of a legal title. Id. A judgment creditor and his sureties in a bond of indemnity given to the sheriff are jointly and severally liable. Dyett V. Rymwn, 129 IST. Y. 351. Proof that the ultimate benefit of the property will be in the plaintiff can only be set up where he has the general property. Id. The rights of the parties must be determined on the facts existing when action is brought. Moore v. Prentiss Tool cfe Supply Co., 133 IST. Y. 144. CoNVERSioK — Corporations, I. 2251 Conversion — Continued. One who assigns wages, agreeing to act as servant, if lie does receive them, in case he collects the money and fails to pay over the same, is liable for conversion, and a body execution may be issued under section 3026 of the Code. J^arreU v. HuhUrd, 148 N. Y. 592. Until after a demand on a bank, and the refusal by it to pay the proceeds of a check, it cannot be liable for conversion when it receives the draft in payment of a check for collection. Castle V. Corn Exohcmge Bcmlc, 148 N. Y. 122. Conveyances ; See Assignments ; Charrvperty / Deeds / Fra/udiilent Conmeyances • Husband am,d Wife; Mortgages; VoVwnta/ry Con/oeyanoes. Conviction ; See Criminal La/m. Cornell University ; See Colleges. Coroner. A coroner is not entitled to salary where he retains fees received while acting as sheriff. People ex rel. Schultz v. Myer, 131 JST. Y. 644. Corporations ; See Banks am,d Banking ; Benevolent Associations ; Building Associations ; Constiinitional Law y Foreign Corpora- tiofis ; Elect/ric Light Companies; Ln'suroMce ; Manufactwring Corporations ; Municipal Corporations ; Plank Road Com- panies ; Railroads ; Religious Associations; Steamboat Com- panies ; Taxation ; Tv/rnpike Companies. I. Incohpoeation and Feanchises. II. Stock, Stockholdees and Capital. III. Officees and Agents. IV. POWEES. Y. Liabilities. YI. Suits Affecting. YII. Dissolution. YIII. Insolvency and Keoeivees. I. INCOKPORATION AND FEANCHISES. The difference between join1>stock companies and corporations discussed. People ex rel. Winchester v. Coleman, 133 N. Y. 279. An agreement for the purchase of land, made prior to the filing 2252 Corporations, I. Corporations — Continued. of* the certificate of incorporation, is ratified by subsequent acceptance of the deeds. Seymour v. Sprvng Forest Cemetery Ass'n, 144 IS. Y. 333. A corporation organized under an unconstitutional statute is a corporation de facto, and may be dissolved. Coxe V. StaU, 144 N. T. 396. A corporation organized under the Manufacturing Act of 1848 is not subject to the prohibition against the declaration of a dividend except out of surplus. People ex rd. Edison General Electric Co. v. Ba/rk&r, 141 ]Sr. Y. 251. Persons seeking to form a corporation must comply with the requirements of the statute in preparing articles of incorpora- tion, and may insert other provisions not inconsistent with law. People ex rel. FaArcMld v. Preston, 140 N. Y. 549. The bestowal of corporate powers is equivalent to creation of a cor- poration. People ex rel. Winchester v. Colemam,, 133 N. Y. 279. Statutes for consolidation of domestic corporations are to be treated as acts of incorporation. People V. W. T., Chicago <& St. Louis R. R. Co., 129 JST. Y. 474. But otherwise where the corporations are not all domestic. Id. Whether such consolidation would be a new corporation <^d_;W6 — quwre ? Id. Organization tax does not apply to aggregate capital upon con- solidation with foreign corporations. Id. Under Laws 1890, chapter 566, section 60, authorizing incorpora- tion for manufacturing gas "or" electricity, both purposes may be united in the same certificate. People ex rel. Municipal Gas Co. v. Rice, 138 N. Y. 151. "Where the company sought to exchange its stock for that of an electric light company, in effect merging the business and fran- chises of the two, held, that this could be accomplished by an amendment to its certificate without consolidation, under Laws 1890, chapter 566 ; Laws 1892, chapter 691. Id. Subsequent corporate acts tending to manifest an illegal proposi- tion on the part of the directors do not invalidate the incor- poration, where the certificate of incorporation expresses no illegal proposition on the part of the directors. tfmted States Vinegar Co. v. Foehrenhach, 148 1!^. Y, 58. In an action upon a stock subscription it is not available to reply that a portion of the capital stock was subscribed by the cor- poration nltra vires. jd Although a provision of a corporate charter provides " all rights' and privileges hereby granted shall be null and void " m a certain event, the attorney-general must bring the action as provided by the statute. I^ew Torh <& Long Island Bridge Co. v. Smith, 148 N. Y. 540. COEPOEATIONS, I, II. 2253 Corporations — Continued. Section 30 of chapter 564 of 1890 to the annual report of cor- porations was not merged in chapter 2 of 1892, etc. Bank of Metropolis v. Faber, 150 N. Y. 200. Public policy does not forbid a corporation, organized under gen- eral laws of another state, and a certificate, executed in due form, that the statutory requirements had been complied with, from doing business in this state. Demarest v. FlacTc, 128 N. T. 205, The election of non-resident directors without a resolution per- mitting would not ipso facto dissolve the corporation. Id. "What was sufficient evidence of user. Id. "What neglect of a railroad corporation to exercise all its fran- chises terminates its corporate existence, how such forfeiture is procured by the attorney-general, under Code Civil Proced- ure, section 1798. People V. Ulster (& Delawa/re R. R. Co., 12§ IST. T. 240. Such actions are not even then maintainable unless public interest is involved. Id. An action thus commenced is also within the control of the state. Id. It is incumbent upon the state to show upon trial that a cause of forfeiture had not only been incurred, but that it continued to exist. Id. "When two corporations which had paid the tax on organization are afterwards consolidated, a new tax on capital is necessary. People ex rel. New Yorh Phonograph Co. v. Rice, affirmed on opinion, 128 IST. Y. 691. "What wiU be regarded as a violation or non-user of an additional franchise. People V. Broadway R. R. Co., of Brooklyn, with opinion of Court of Appeals, 126 JST. Y. 29. An action will not lie in the name of the people to forfeit the franchise of a street railway for failure to construct its tracks. Id. The enactment of a special statute, and the acceptance of the privileges thus conferred by the company, do not modify the origiuES charter of the company so as to make the statute a part of it. Id. Although a statute be permissive, yet if a company accepts the privileges conferred, it becomes at once amenable to law con- ferring them. Id. II. STOCK, STOCKHOLDEES AE^D CAPITAL. Certificates of stock of a business corporation are not possessed of complete negotiability as commercial paper. Knox V. Eden Musee American Co., 148 N. Y. 441. 2254 COEPOEATIONS, II. Corporations — Continued. When a certificate is lost, the owner may recover possession from a honajide purchaser. -^• The stock of a corporation covers its capital, sm-plus and fran- chises. People ex rel. Union Trust Go. v. Coleman, 126 JN. T. 433. The court may grant the right to examine the books before election to a stockholder. Peojyle ex rel. Stoho v. Eadie, 133 ]^, Y. 573. The court may in its discretion allow such examination at other times. _ Id. Where owners of lands organize a corporation for its manage- ment as a cemetery, of which they are sole stockholders, and convey the land to it in exchange for corporate bonds, the fact that the land was not worth the sum secured is immaterial, as the transaction is, in substance, simply a change in the manner of holding the land. Seymov/r v. Spring Forest Cemetery Ass'n, 144 'N. Y. 333. A person who has subscribed for stock, but received no certificate, is not entitled to stock in a new corporation after consolidation, until his certificate of stock in the old corporation is produced. Bdbcock V. Schuylkill <& Lehigh Valley B. R. Co., 133 !N". Y. 420. The unauthorized purchase of stock in another's name does not constitute the latter a stockholder, though the stock is paid for, when the purchase is promptly repudiated. Olenn v. Ga/rth, 133 IST. Y. 18. Provisions regarding transfer of stock do not prevent the passing of the entire title as between the parties. Chemical Nat. Bh. v. Cohoell, 132 K Y. 250. Where a foreign statute gives a corporation power to hold, pur- chase and sell real estate, it may deal in the purchase and sale of real estate. Lancaster v. Amsterrdami Improvement Co., 140 N". Y. 576. Where such corporation accjuires real estate in this state, its sub- sequent conveyance is unimpeachable upon the ground of abuse of powers conferred, and where such conveyance is not prohib- ited expressly by the statutes of the state. Id. Capital stock can only be increased in the particular manner authorized by its charter or by statute. ' Einstein v. Rochester bfas d; Electric Co., 146 N. Y. 46. What does not amount to an increase of the capital stock of a corporation. jg^ Eefusal by personal representative of deceased to pay installments within the time limited, bars rights of the representative and his assigns. Dow V. Iowa Central R. Co., 144 N. Y. 426. A stockholder is not entitled to intervene as a party defendant COEPORATIONS, II, III. 2255 Corporations — Continued. where stock has been held a long time, as acquiescence after such lapse of time will be presumed. Warren v. Bigelow Blue Stone Co., 142 IST. Y. 669. An equitable action to compel the issuance of stock is not pre- vented by the provisions of statute authorizing the court upon summary application to make an order requiring the issuance of a new certificate. Kenncm v. Forty-second St. & C. By. Co., 140 IST. Y. 183. Though one has been defeated in an action against the corporation, where the assignee of a stockholder pays the costs awarded, he is entitled to the issue of a new certificate. Cassagm v. Ma/rvin, 143 N. Y. 292. Scrip issued by the corporation in payment of the greater part of the consideration for the purchase of its lands, and receivable by it to the extent of three-fourths of the value of lands sold, was, pursuant to a prior arrangement and understanding of the promoters, to be first protected out of the proceeds of land sales to the prescribed extent. Held, that the corporation held such proceeds as trustees for the scripholders. Bogers v. W. Y. <& Texas Lamd Co., 134 N. Y. 197. A company having bought scrip with funds applicable to its redemption could not re-issue the same in the form of a divi- dend. Id. Stock and bonds in a competing conipany, bought pursuant to section 40 of the Stock Corporation Law, cannot be used by the purchaser for the purpose of destroying the property of the stockholders of the other company. Fa/rmers' Loa/n & Trust Co. v. New Yorh & Northern B. Co., 150 ]Sr. Y. 410. The rights of minority stockholders of the company, the majority of wose stock has been purchased by the competing company, considered and determined. Farmers' Loam, & Trust Co. v. New YorTc <& Northern B. Co., 150 K Y. 410. It is conclusive when a jury determines the question of the genuine- ness of certificates of stock. Jarvis v. Manhattan Beach Co., 148 N. Y. 652. III. OFFICERS AND AGEISTTS. The discretion of the trustees, when acting in good faith, cannot be disturbed. McNdb V. McNab <& Ha/dvrh Mfg. Co., 133 K Y. 68T. A stockholder who accepted his share of the profits of a transac- tion cannot be heard to claim it as ulin-a vires. Id. A single past transaction of investment in government bonds, though detrimental, did not call for the interference of a court of equity. Id. 2256 COKPOEATIONS, III. Corporations — Continued. An objecting stockholder cannot maintain an action where an officer of a corporation offered to personally assume the ex- pense of a transaction. . . ■^<*- "Where there is no evidence of a preconcerted plan m the mcrease of salaries on the part of those voting for it, such action is legal. Id. A director is released from liability where he disposes of the bene- ficial interest in his stock with" the knowledge of the corpora- tion. J^at. BoMk V. Colwell, 132 IST. Y. 250. The mere fact that the person making a statement of assets and liabilities of a corporation was the president thereof, does not warrant an inference that such statement is given upon his per- sonal knowledge. Kowntze v. Kennedy, 14Y N. T. 124. President of a corporation who purchased its notes with knowl- edge that they were issued for a purpose which was vltra vii'es is not a lonafide holder. McClwre v. Levy, 147 IST. Y. 215. Where a party had made no claim for salary as president of an insurance company which had transferred its business to an- other company, he cannot claim, where he has been made man- ager of the new company, a salary as president. Smwnson v. N. Y. City Ins. Co., 141 IST. Y. 12. The fact that a transferee, with knowledge of the agreement, holds the stock subject to the possible enforcement of the agreement in equity, in no way interferes with his legal title. Matter of Argus Co., 138 ~S. Y. 557. It does not affect the right of stockholders to petition in a sum- mary proceeding to establish an election of officers under section 27 of the General Corporation Act of 1892, that they joined the corporations as one of the petitioners without authority. Id. The receipt of illegal votes, at an election of the officers of a cor- poration, in favor of a candidate who has also received a majority of the legal votes, does not defeat his election. Id. An agreement between stockholders controlling the majority of the stock of a corporation, that none would sell any of his shares without giving the other parties to the agreement an oppor- tunity to purchase, does not disable a party thereto from vest- ting legal title in another by a transfer. M. The word " employee " in chapter 376 of 1885, giving preference to wages of employes, defined. Palmer v. Van SamMoord, 153 E". Y. 612. Who is an employe within the meaning of such act. Id. Where a director in a corporation for whose debt a note was given was also a director in the bank which discounted it, but in no way acted for the bank in the matter, his knowledge was not imputable to the bank. CasGo Nat. Bh. v. Clark, 139 N. Y. 307; s. o., MerchcmW Nat. Bh. V. ClarTc, 139 N. Y. 314. COKPOEATIONS, III, IV. 2257 Corporations — Continued. A corporation, by designating an agent in another state upon whom proceedings may be served, does not thereby change its residence. Douglass v. PImnix Ins. Co., 138 IST. Y. 209. What is sufficient to sustain a finding of the existence of the con- tract to pay president a certain salary. Farmers' L. & T.Oo. v. EousatonioR. B. Co., 152 IST. Y. 251. IV. POWEES. "When a corporation is liable to a tona fide holder of a certificate of its stock for loss sustained in its purchase. Fifth Ave. BTc. v. Forty-seoond St., etc., B. B. Co., 137 "k. Y. 231. The rule that " when certificates of stock contain apparently aU the essentials of genuineness, a iona fide holder thereof has a claim to recognition as a stockholder, if such stock can be legally issued, or to indemnity if this cannot be done. The fact of forgery does not extinguish his right, when it has been perpe- trated by or at the instance of an officer, placed in authority by the corporation and entrusted with the custody of its stock books, and held out by the company as the source of information on the subject. Id. A director of a corporation owes it no duty to buy in its unma- tured obligations for its benefit, and may purchase them at any sum. 8eymov/r v. Spring Forest Cemetery Ass'n, 144 IS". Y. 333. A by-law of a press association, which prevents its members from receiving or publishing regular news dispatches of any other news association covering a like territory, is legal. Matthews v. Associated Press of If. T., 136 N. Y. 333. "Whether such by-law would be enforceable against a member who was also a member of a like association at the time of its pass- age, — query. Id. The rule that in the case of a corporation, exercising a delegated authority for the public benefit, the actionable quality of a {ffivate injury resulting therefrom mav depend upon the legis- ative will, does not extend to acts which are ultra vires. Hudson Biwer Telephone Co. v. Watervliet Turnpike ds By. Co., 135 ]Sr. Ti 393. It seems, therefore, that a telephone company occupying a city street with its wires may question the right of a street railway company to use an electric system for propelling its cars to the detriment of the business of the former. Id. "Where, for any reason, the stock book of a corporation is inacces- sible for the purposes of making transfers of stock, the directors may adopt a new one. Matter of Argus Co., 138 N. Y. 557. A meeting of the directors of a corporation, at which the ordinary business of the corporation is to be considered, may be called by a general notice. Id. 143 2258 Corporations, IV, V. Corporations — Continued. The trustees of a corporation cannot so dispose of its property as to virtually end its existence. People v. Ballard, 134 JST. Y. 269. Such attempted disposition of the corporate property, even if in good faith, is an illegal act. Id- A manager who has received certificates of stock from the presi- dent of the corporation with instructions to cancel them cannot reissue them. Knox v. JEden Musee American Co., 148 N. T. 441. Although the officers of a corporation surrendered certificates for cancellation to a manager who disposes of them, they may challenge their validity in the hands of a honafide purchaser. Id. Executive committee may transact business of corporation between meetings of the directors and delegate persons to one of such committee. Sheridam, Electric lAgM Co. v. Chatham Nat. Bh., 12T ]Sr. T. 51Y. A 'bona fide pledger of a receipt issued by the president of a ware- house company in his own favor must show that implied author- ity to issue receipts for his own goods had been conferred on him. Hanover Nat. Bh. v. American Dock & Trust Co., 148 K Y. 612. Such authority may be shown by acquiescence of the directors in previous similar actions. ^ Id. A manufacturing corporation has power, with the consent of all its stockholders, to sell its plant and machinery to another cor- poration and to retire from business, taking the stock of the latter in payment therefor. Holmes <& Griggs Mfg. Co. v. Holmes & Wessell Metal Co., 127 N. Y. 252. The vendor corporation, having taken such stock, may sell the same, and a note taken therefor is not subject to defense of ultra vires. /^. V. LIABILITIES. The liability for failure to file certificate of increase of stock at- taches only to the holders of the increased stock. Griffith V. 6h^een, 129 IST. Y. 51Y. Application for dissolution does not relieve trustees from filing annual report where one trustee makes affidavit that the cor- poration is solvent. First Nat. Bank v. Lamon, 130 K Y. 366. A finding of fact by the referee, and sustained by the General Term, wiU not be renewed by Court of Appeals. Id The provisions making a stockholder liable do not apply in favor of a creditor who was also a director. TTt^, ^, , . ,.„ McBonall^. Sh6ehan,Vi,9ilS,.Y.'iS)0. Where the plamtiff was engaged by the promoter of a water com- COEPOEATIONS, V. 2259 Corporations — Continued. pany before its organization to secure certain privileges for it, and said promoter on its organization becomes president of the company with members of his family as principal officers, the company is liable for the amount agreed upon. Oakes v. Cattaraugus Water Co., 143 N. Y. 430. The . filing in the office of the secretary of state of the certificate of full-paid stock of a corporation organized under the Business Corporation Act of 18T5 was a sufficient compliance with the statute, though not filed in county clerk's office. Jones V. Butler, 146 N. Y. 55. The assets of a corporation are a trust fund for the payment of its debts. Cole v. Millerton Iron Co., 133 N. Y. 164. The transfer of property of one corporation to another for nominal consideration does not effect a consolidation, and is illegal. Id. A creditor cannot be compelled to assent to a change of debtors. Id. Transfer of property by a corporation in contemplation of insol- vency is not limited to cases where the payment of an obliga- tion has been refused. Id. Judgment and appointment of receiver is no bar to creditor's suit. Id. A charge that a corporation was organized for an illegal purpose cannot be sustained where it is not shown that they adopted and acted upon the prospectus issued before organization. tr. 8. Vinegar Co. v. Schlegel, 143 N. Y. 537. So long as a foreign coi'poration is recognized by the authorities of its own state it is entitled to some recognition here, unless it appears that it was formed for purposes iflegal here. Id. Where a party contracts with a corporation as such he is estopped from denying its corporate existence. Id. Where the representations of a corporation director were such as to induce a stockholder to part with his stock to his loss and damage, he is entitled to recover on such loss. Rothmiller v. Stein, 143 N. Y. 581. The corporation cannot offer the defense that if they informed him of the corporation's condition and he sold the stock, that he would be liable for fraud. Id. The report required by the General Manufacturing Corporations Act, Laws 1848, chapter 40, as amended by Laws 18T5, chapter 510, must be filed as well as made out in order to exempt trus- tees from liability. Whitney v. Cammann, 137 N. Y. 342. The rule that the statute is highly penal and to be construed ac- cordingly, and that a party seeking to charge a director within its terms must allege and prove affirmatively every fact and circumstance upon which his right to recover depends, re- affirmed. Id. It seems that if the trustees make and verify the report within the 2260 Corporations, V. Corporations — Continued. time prescribed by statute, it may be filed or published as soon as practicable thereafter. -'^• Where a land company upon its organization accepts title to land in accordance with the scheme for which it was organized, it thereby adopts and ratifies and becomes bound by an agree- ment between its promoters, who were the owners of such land, and afterward its stockholders. Bogers v. If. Y. cS; Texas,, Land Co., 134 IST. T. 197. Such corporation is charged, by the knowledge of its directors, the source of its title and the consideration paid for the land, with knowledge of the proceedings of the land owners which led to its existence. Id. Liability for loss of goods shipped on line conducted by corpora- tion as agent considered. JJinhauf v. Lomba/rd, 137 IT. Y. 417. A corporation that had paid a note is estopped from denying the authority of the person who made it in its behalf. Davies v. iv. Y. Concert Co., aflSrmed without opinion, 128 E". T. 635. When no action lies against a corporation for any loss resulting to a lender upon a forged certificate. Manhattan Life Ins. Co. v. Forty-second St. <& Gramd St. Ferry R. R. Co., 139 N. Y. 146. The plea of ultra vires cannot be availed of to defend against an obligation incurred, when the contract has been in good faith performed by the other contracting party and the corporation has had the benefit of it. LinkavfY. Lombard, 137 llTT Y. 417. A lease which may be ultra vires and invalid as regards the state may be enforced between the parties. Bath Gas Light Co. v. Claffy, 151 N. Y. 24. "When the personal liability of the directors under section 24 of the Stock Corporation Law may be enforced. National Bh. of Aubv/rn v. Dillingham, 147 N". Y. 603. The right of action given under said section applies to all credi- tors. 7c^. If premises leased to a corporation are vacant before the expira- tion of the term on the appointment of a receiver in a statutory proceeding for the dissolution of the corporation for insolvency, and the lessor, in accordance with the terms of the lease, re-en- ters and re-lets to a third party for the unexpired term at a less rental, the difference between the rent for the balance of the term reserved under the original lease and that reserved under the sub-letting constitutes a definitely established claim against the corporation. Peojple v. St. Nicholas Bmik, 151 N. Y. 592. The situation of the receiver of an insolvent corporation is less restricted than that of an assignee under a general asignment for the benefit of creditors. j^ The lessor of a building, used as a manufactory, who receives stock COKPOEATIONS, V, VI. 2261 Corporations — Continued. of a corporation in place of rent, is not liable to taxation in pur- suance of section 10 of the General Manufacturing Act. Close V. Noye, 147 IST. Y. 597. Although the stock corporation law was subsequently repealed, such exemption of the rights of the holder of stock was protected by the savings clause in the Eepealing Act. Id. Eeal estate of a foreign corporation purchased with surplus earn- ings is not taxable as " capital stock employed within this state." People ex rel. Singer Mfg. Co. v. Wemple, 150 N. Y. 46. What is sufficient to put transferee on inquiry when negotiable Eaper made by a corporation to order of its president, indorsed y him, is presented to such transferee. Cheeyer v. Pittsburg, S. cb L. E. R. R. Co., 150 N. Y. 69. Stock of foreign corporations, owned by a domestic corporation, is not subject to taxation under chapter 542 of 1880. People ex rel. Edison Electric Liqht Co. v. Wemvle, 148 N. Y. 690. ^ "When a corporate seal is attached to negotiable paper, it does not lose that quality. Chase Nat. Bh. v. Faurot, 149 IST. Y. 532. Directors of a warehouse company were chargeable as to a hona fide purchaser of a receipt issued in its name with knowledge of entries in its book which could have been disclosed by inspection. Hamover Nat. Bh. v. American Dock & Trust Co., 148 IST. Y. 612. When a broker, sued upon his own guarantee of genuineness of stock, may recover from the company whose stock was sold. Jarvis v. Manhattan Beach. Co., 148 IS". Y. 652. VI. SUITS AFFECTING. An action for amount unpaid on stock rests upon contract, and an express or implied promise must be shown. Glemn v. Oa/rth, 133 IST. Y. 18. 'Eo recovery can be had where neither an express or implied promise is shown. Id. An order quashing a writ of certiora/ri issued under chapter 269, Laws 1880, to review an assessment of the personal property of a corporation for taxation, is appealable to the Court of Appeals. People ex rel. Co7mnerc%al Mutual Ins. Co. v. Tax Com- onissioners, 144 'S. Y. 483. Where the determination of the assessors, it will not be reviewed and reversed by the Court of Appeals on certiorari. People ex rel. HecHcer-Jones-Jewell Milling Co. v. Barker, 147 K Y. 31. In a petition for a certiorari to review an assessment for taxation under chapter 269, Laws 1880, on the ground of u-regularity, 2262 COKPOBATIONS, VI. Corporations — Continued. only the conclusions of fact need be stated, not the evidence to support them. People ex rel. Commercial Muinial Ins. Co. v. Taw Commis- sioners, 144 N. Y. 483. "Where petition in such a case sufficiently speciiies the grounds of illegality. _ _ . . -^- A petition -which alleges that an assessment is illegal, invalid, void and erroneous, etc., held, to raise only the question of over- valuation. Id. A petition for a writ of certiorari under chapter 269, Laws 1880, to review an assessment for taxation on the ground of illegality, must specify the particulars of the alleged illegality. Id. In making an assessment of sums invested in this state by a foreign corporation, the indebtedness incurred by it in the purchase of property here, which is unpaid, is to be deducted.- People ex rel. Hecker-Jones-Jewell Millmg Co. v. Parher^ 147 ]Sr. Y. 31. In assessing the personal property of a corporation, the actual value of its capital stock, and not the market value of its shares in the hands of individual owners. People ex rel. Manhattan P. Co. v. Parker, 146 IST. Y. 304. In making such assessment it cannot be presumed that its indebt- edness represents property to the amount thereof in addition to capital stock. Id. Earnings of a corporation may be considered by the assessors. Id. Eeal property of a corporation should be assessed at its actual value. ^ Id, Where the tax commissioners acted exclusively on the statement furnished by the corporation, and did not impugn any of the facts stated therein, an assessment at a greater valuation cannot be sustained. People ex rel. Equitable Gas-IAght Co. v. Pa/rTcer, 144 N. Y. 638. "Where a determination by the assessors that the capital of the corporation is unimpaired is justified, they are not bound to deduct its debts. Jg, The assessors are not bound by the statement made to them by the corporation upon an application for reduction of the assess- ment. 7^_ "When a foreign corporation is not wholly engaged in carrying on manufacture, and is not exempt from taxation under chapter 542, Laws 1880, as amended in 1889. People ex rel. Western Electric Co. v. Camplell, 145 N. Y. 587. • How the value of the real estate of a corporation for the purpose of ascertaining its capital subject to taxation is to be ascertained. People ex rel. Equitable Oas-Ught Co. v. ParJcer 144 IS". Y. 94. A judgment sequestering the property of a corporation cannot be COKPOBATIONS, VI. 2263 Corporations — Continued. collaterally attacked, in an action brought by the receiver, on the ground of error in the decision as to the validity of the judgment. Jones v. Blun, 145 JST. Y. 333. The exemption from taxation under the Corporation Tax Act of 1880, as amended in 1889, of " manufacturing corporations whol- ly engaged in carrying on manufacture within this state," is ' umited to corporations whose corporate business is exclusively that of manufacturing. People ex rel. Tiffany c6 Co. v. Cmnpbell, 144 N. Y. 166. The fact that a manufacturing company uses a portion of its capital in a business outside of its corporate powers does not deprive it of all benefit of the exemption. Id, The determination of the comptroller on the question of valuation of the capital of the corporation will not be disturbed, unless clearly shown to have been erroneous. People ex rel. Western Electric Co. v. Camplell, 145 N. Y. 587. "What is not a transfer or assignment of the property of the cor- poration within the meaning of section 48 of the Stock Corpo- ration Law. French v. Andrews, 145 N. Y. 441. Nor does the act of the treasurer of such corporation in giving demand notes in exchange for others, to enable the creditor to procure judgments. Id. Act of corporation fixing the prices of commodity is sufiicient to justify a finding that the corporation is a combination, and warrants a judgment of dissolution. People V. Milk Hxchcmge, 145 N. Y. 267. "When a stockholder may maintain an action against the directors for mismanagement. 8age v. Ctiiher, 147 N. Y. 241, Complaint in an action by a stockholder against directors for violating their trust, held, sufficient. Id. Holders of bonds improperly pledged to secure prior debts are not entitled to share in the proceeds of a foreclosure of the mortgage given to secure the bonds. 8hcm v. SaroMac Horse Nail Co., 144 E. Y. 220. Where several corporations are consolidated under an agreement that payment for the transfer of their property and business should be made by an exchange of stock, such agreement is a contract, and may be enforced by original corporators against the new company. Anthony v. American, Olmcose Co., 146 IST. Y. 407. The attorney-general is authorized to bring an action in the name of the people, without a relator, to remove the trustees of a domestic corporation for misconduct. People V. Ballard, 134 K Y. 269. The question as to what the public interests require is committed to the absolute discretion of the attorney-general. Id. "Where plaintifif sues as cesim,i que trust of the property in question. 2264 COEPOEATIONS, VI. Corporations — Continued. and it appears that the issues litigated in the present action were decided in a former action, the plaintiff is estopped. Alexcmder y. Donohoe, 143 X T. 203. The plaintiff could not lose his claim on his rights under the trust deed since, standing as a stockholder, he affirmed the sur- render of the trust certilicates and did not offer to return his stock. _ Id. A motion by one of the parties to a proceeding for dissolution of a corporation for dismissal of such proceeding is an application for a final order, and when, after all the parties have been heard, the court has jurisdiction even after an adjournment to enter an order of dissolution. Matter of Peehmiose Fishing Club, 151 N. Y. 511. The complaint in an action to enforce a stockholder's liability for the debts of the corporation under section 10 of the Manufac- turing Act of 1848, upon the ground that no certificate of pay- ment of the capital stock was ever made or filed, need not nega- tive the exemption from such liability, created by the amendment of 1853, in a case of stock issued for the purchase of property. Rowell V. Jmvurim,, 151 N. Y. 60. Ejectment lies against stockholder of corporation formed to erect apartment house, who was entitled to occupy apartment under conditions fixed by majority of stockholders and who did not comply with such conditions. Compton V. The CMsea, 128 K Y. 537. What sums may be recovered in an action by stockholders against directors of a corporation for losses caused by their negligence. Bloom V. Jyational United Benefit Savings c& Loam, Co., 152 K Y. 114. An assessment of real estate of a railroad in a town is to be based upon the cost of replacing the property within the jurisdiction of the assessors. People ex rel. B., L. cfe W. B. B. Co. v. Clapp, 152 IST. Y. 490. The assessors may consider in fixing the assessment the annual report of a railroad company to the railroad commissioners. People ex rel. Manhattan B. Co. v. Barher, 152 N. Y. 41 Y. Basis of assessment of the personal property of an elevated rail- road company, considered. Jd. Circumstances under which, held, that a preliminary restraining order in an action by a stockholder to procure the appointment of a receiver was no excuse for the failure of a creditor to ob- tain a judgment against the corporation under section 24 of the act of 1848. _ United Class Co. v. Va/ry, 152 IST. Y. 121. "When check appearing to be the one sued upon signed by the assistant treasurer of the defendant corporation is admissible as against a general objection. , Fa/rmers' L. & T. Co. v. Sousatonio B. B. Co., 152 N. Y. 251. CORPOEATIONS, VI, VII. 2265 Corporations — Continued. The ruling of the comptroller that a corporation was not engaged in manufacturing during a certain year is not conclusive. People ex rel. EdAson Electric Light Co. v. Campiell, 148 K T. 759. An attachment is not properly made when the service of the summons is upon the person in charge of the property attached and such service is brought to the notice of the corporation. Kieley v. Central Corwplete Conibustion Mfg. Co., 147 ]Sr. Y. 620. A purchaser of bonds, who knew of the misappropriation of the proceeds, cannot maintain an action upon a covenant in a mort- gage. JBelden v. Bv/rhe, 147 IsT. Y. 542. Subsequent purchasers of the bonds, however, without notice may have such relief. Id. A bondholder may maintain an action for specific performance of a provision in a bond given by organizers of the railroad that they will convey certain m-operty to the trustee. CBeirne v. Alleghany c& Kinsua B. B. Co., 151 IST. Y. 372. An action against a stockholder of a Kansas corporation who resides in this state cannot be maintained here to enforce his liability created by the laws of Kansas. M'a/rshall v. Sherman, 148 IST. Y. 9. Such action would have to be proceeded with in the same manner as provided by our statutes. Id. When evidence as to improper use by one corporation of the funds, stock and bonds of another may be shown in evidence in an action to foreclose the bonds of the road controlled. Farmers' Loa/n & Trust Co. v. New York c& Northern B. Co., 150 K Y. 410. It seems that an action by the attorney-general to annul an added franchise, is within the scope of the provisions of Code Civil Procedure, section 1798. People V. Broadway B. B. Co. of BrooTiVyn, with opinion of Court of Appeals, 126 K Y. 29. The attorney-general may appropriately bring an action in ac- cordance with the provisions of section 1798 of the Code, for the purpose of enforcing the common-law right to annul fran- chise. Id. A claim against one of a director or stockholder must be estab- lished by the application of the same rules of evidence which are applied in an action brought by an individual. Budd V. BoliMson, 126 N. Y. 113. VII. DISSOLUTION. Upon voluntary dissolution the court cannot control funds placed in the hands of a trustee for a specific purpose. Matter of Some Provident Safety FundAsso., 129 IST. Y. 288. 2266 COEPOKATIONS, VII. Corporations — Continued. Where such funds have been ordered paid to a receiver, the court must direct their repayment. _ _ J^d. The receiver is not liable for payments made under direction of the court in good faith. _ Id. The statutory method of effecting dissolution is exclusive. Matter of Importers & Grocers' Exchcmge, 132 N. T, 312. Where the majority of members and trustees desire a dissolution, it should be ordered, though the corporation is solvent. Id. Yoluntary dissolution of a corporation rests upon statute and not upon the general equity powers of the court. Matter of JBimghampton General Eleo. Co., 143 IST. T. 361. Dissolution does not destroy the right of action for loss of services resulting from an injury received while in employ of the cor- poration. Ma/rstaller v. Mills, 143 N. T. 398. A corporation cannot cease to exist of its own will. People V. Balla/rd, 134 K Y. 269. While a corporation may sell its property to pay debts, or to carry on its business, it cannot sell its property in order to deprive itself of existence. Id. While the stockholders who consented may be estopped by their acts, those who did not consent can take advantage of this violation of their rights. Id. An action to vacate a charter may be brought without a relator. People V. Buffalo Ston^ a; Cement Company, 131 !N". Y. 140. No act of a relator will affect the right of the people to maintain action to vacate a charter. Id. The failure to file annual report is a ground of forfeiture. Id. Judgment of dissolution must be awarded upon proof of failure to pay in capital stock. Id. iSTon-user of corporate powers is a ground for dissolution. People V. Milh Exchange, 133 N. Y. 565. When an allowance to attorney employed to resist proceedings for the dissolution of a corporation will not be a proper claim. People V. Cormnercial Allia/tice Life Ins. Co., 148 N. Y 663. An order in an action for the dissolution of a corporation direct- ing receiver to pay the creditors' claim, is not appealable as of right to the Court of Appeals. People V. Amer%ca/n Loan <& Trust Co., 150 E". Y. 117. The directors of the bank cannot anticipate an action to dissolve a bank after the superintendent of banks has taken possession of the assets. Matter of Murray mil Lank, 153 IST. Y. 199. An action by the directors of a banldng corporation for the voluntary dissolution abates upon the entry of judgment of the dissolution. 7^_ COEPOBATIONS, VIII. 2267 Corporations — Continued. VIII. INSOLVENCY AND EEOEIVEKS. A transfer by a manufacturing company which has refused pay- ment of its notes to a firm of which only one member is a stockholder, in payment of a debt due to the firm, is void. Jones V. Blun, 145 N. Y. 333. Stocks of New York banks held by a foreign insurance company, doing business in this state, are exempt from taxation by force of section 4 of chapter 679, Laws 1886. ^tm.a Ins. Co. v. Mayor, 153 N. Y. 331. Chapter 679 of 1886, exempting bank stock held by foreign insurance companies doing busmess in this state from taxation, did not apply to the taxation for the year 1896. Id. The secretary of a corporation may, after the appointment of a receiver, waive notice of protest. Ludington v. Thornpson, 153 N. Y. 499. An action against the receiver of a corporation in form upon notes made by it, but in reality to determine whether the plain- tiff is a creditor, is not barred by the Statute of Limitations where an action on a note was not barred at the time of disso- tion. Id. Taxes against personal property of an insolvent corporation which accrued subsequent to liens acquired by attachment are not entitled to priority of payment. Wise V. L. c& C. Co., 153 N. Y. 507. A motion to compel payment by the receiver of the corporation of moneys improperly received by him must be upon notice of the attorney-general, and in an action in which he was appointed. Gillig v. Geo. G. TreudweU Co., 151 N. Y. 552. An action by a receiver of an insolvent corporation against its director for misapplication of assets is within the six years' limit of limitations of the old Code accrued before the new Code took effect. Mason v. Henry, 152 N. Y. 529. The statute begins to run in such a case from the date of misap- plication of funds. Id. A temporary receiver may maintain an action to collect a judg- ment entered against the corporation in contemplation of insolvency. Neons'^. American Tube & Iron Co., 150 N. Y. 42. Eight of preference of party who loaned money to an embar- rassed corporation upon inadequate security, discussed and determined. Farmers' loam, & Trust Co. v. BanJcers <& Merchants^ Tel. Co., 148 N. Y. 315. Although the time to prove debts against the estate of an insolvent corporation had expired, a creditor is entitled to jpro rata divi- dends of the assets remaining undistributed. People V. E. Remington & Sons, affirmed on opinion, 126 N. Y. 654. 2268 Costs, I. Costs. I. When Allowed. II. Liability foe. III. Taxation and Eemedies. IV. ExTEA Allowance. V. Costs on Appeal. YL In Special Peoceedings. I. WHEN ALLOWED. Costs and allowance, nnder chapter 482 of Laws 1862, relating to claims against vessels, not affected by repeal of the Code. Chester Moiling Mills v. Vessels " Hopatcong" etc., 133 N. T. 694. In offer of judgment with costs " to date," the words " to date " were mere surplusage. Lynk v. Weaver, 128 N. Y. ITl. The court is not deprived of jurisdiction by failure to pay the costs of a motion in a former action. Wessels v. Boettcher, 142 N. Y. 212. An attachment in the second action may be set aside condition- ally upon such failure to pay costs within a specified time. Id. Where the Court of Appeals reverses the judgment of the court below and grants a new trial, " costs to abide the event " in- clude costs to that time. Franey v. Smith, 126 IST. Y. 658. Costs of all parties in all courts in action for construction of will is in discretion of court. Booth V. Baptist Church of Christ, 126 IsT. Y. 215. Where plaintiff cannot recover costs in the Supreme Court in an action of trespass on lands, where recovery is at least $50. Jjynh V. Weaver, 128 N. Y. 171. An action of trespass on lands is one for an injury on property under section 2862, subdivision 2 of the Code. Id. The provisions of section 3228 of the Code, allowing costs in an action " in which a claim of title to real property arises on the pleadings," is substantially the same as the former provision of the Revised Statutes. Id. When in an action in equity, aU the defendants having joined in one appeal, but one bill of costs is authorized. Sweet V. Mowry, affirmed, 138 IST. Y. 650. The refusal of costs tendered by plaintiff on opening a default amounts to a waiver of a stay of proceedings until payment. Kiefer v. Grand Trwn.k By. Co., appeal dismissed. 128 K Y. 658. Where a receiver voluntarily enters litigation, and a verdict is rendered against him, costs against him personally may be im- posed on motion at Special Term after trial and before entry of judgment. Bowrdon v. Martin, 142 N. Y. 669. Costs, I, II, III, IV. 2269 Costs — Continued. Costs are regulated by statute, and unless so granted in the partic- ular case a party is not entitled to them. MoKushie v. Hend/riohson, 128 N. Y. M^. Upon the distribution of surplus moneys after foreclosure the court has power to require an unsuccessful claimant to pay the referee's fees and disbursements. Hyman v. Hauff, affirmed, 138 K Y. 48. "Where the payment of costs is in the discretion of the court, it is proper for the Special Term to award them in ordering final judgment. Barnard v. Hall, 143 IST. Y. 339. II. LIABILITY FOE. Costs cannot be awarded against an executor or administrator in the absence of the certificate required by section 1835 of the Code. Matson v. Alley, 141 N. Y. 179. The filing of a lis pendens in an action to restrain the violation of restrictive covenants of an agreement concerning the use of lands gives no priority to a judgment for costs in such action. Vrocker v. Lewis, 144 N. Y. 140. A motion to charge the assignee of claim prosecuted by assignor with the costs was properly denied, since he did not commence the action, in the name of another under section 3247 of the Code. Thorn v. Beard, 139 E". Y. 482. III. TAXATION AND EEMEDIES. How a defect in proof of the payment of costs imposed as a con- dition may be supplied. Furman v. Furman, 173 N. Y. 309. The right of either party to tax statutory allowance given by law for examination of witnesses by commission does not depend upon success as to the particular cause of action to vrhich the proof was directed, but only upon such success as carried with it the right to general costs in the action. Burns v. i)elama/re, Lackawomna, etc., R. R. Co., 135 N. Y. 268. In such case, however, the party is only entitled to tax $10 upon a single commission. Id. Nor, it seems, does the fact that the plaintiff failed to recover on the cause of action referred to defeat his right to the fees of the commissioner. Id. lY. EXTKA ALLOWANCE. An action to foreclose a mortgage on real property is within the provisions of subdivision 1, section 3253 of the Code limiting an extra allowance to $200. Waterlury v. Tucker & Ca/rter Cordage Co., 152 N. Y. 610. "When the Special Term had no power to grant an extra allowance 2270 Costs, IV, V. Costs — Continued. to defendant based on the pecuniary value of the subject-matter which was alleged in the ansAver to be $50,000. Hcmover Fire Ins. Co. v. Germania Fire Ins. Co., 138 IS". Y. 252. In an action brought by the attorney-general under Code Civil Procedure, sections 1948, 1949, no extra allowance is proper. People ex rel. Winaus v. Adams, 128 Is. Y. 129. Case where upon the discontinuance of an action brought by the attorney-general to forfeit the charter of a railroad company for failure to complete an extension, an allowance of $1,500 was erroneous. Feoj)le V. Ulster di Delaware R. R. Co., 128 IST. T. 240. The state tax upon the corporate franchise and business of a corporation furnishes no evidence of the value of the franchise upon it to base an additional allowance. Id. A controversy submitted by agreement is not a case in which an extra allowance may be granted. People v. FitcUurg R. R. Co., 133 IST. Y. 239. In an action to enjoin interference with the franchise of a corpora- tion, where there is some testimony as to the value of such franchise it may be regarded as the basis for the award of an extra allowance. Hudson River Telephone Co. v. Watervliet Turnpike <& Ry. Co., 135 K Y. 393. A defendant is not relieved from the payment of a second extra allowance where a new trial is regarded as a second action. WiMg V. De la Rionda, 131 IST. Y. 422. "Where in an action for damages for trespass the plaintiff made default upon trial, and the court awarded an allowance in its discretion, such discretion cannot be reviewed on appeal in the Court of Appeals. Sentenis v. laden, 140 N. Y. 463. "Where an order of discontinuance was entered without prejudice to a motion for extra allowance, failure to pay the allowance does not divest the Special Term of jurisdiction. Ha/rlem Bridge Morrisamia, etc., Ry. Co. v. Town Boa/rd of Westchester, 143 N. Y. 59. Y. COSTS ON APPEAL. Costs in the Court of Appeals are intended, where that court grants a motion to withdraw an appeal " upon payment of all costs before notice of argument." Broadway 8a/oim,gs Institution v. Town of Pelhami, 148 N. Y. 737. "Where neither party to an appeal from the Justice's Court made an offer of judgment, the one succeeding was entitled to costs, whether judgment was large or small, in accordance with section Costs, V, VI — Countee-Claim. 2271 Costs — Continued. 3070 of the Code as amended in 1885 and previous to the amend- ment of 1895. Pierano r. Merritt, 148 N. Y. 289. Where the record disclosed no ground for appeal, and the question was merely how much plaintiil was entitled to recover, that under Code Civil Procedure, section 3251, upon affirmance by the Court of Appeals, ten per cent, upon the amount of the judgment should be awarded as damages for the delay. Cohen V. Mayor, etc., of N. T., 128 N. Y. 594. Upon appeal from an order the General Term affirmed the order "with costs," held,' UTi^QV section 3251 of the Code only $10 should have been taxed. Cassidy v. McFarlcmd, 139 N. Y. 201. VI. IE SPECIAL PKOCEEDmCS. Motion, costs and disbursements only are allowable in a proceeding for distribution of the moneys in the hands of a referee in partition. Fowler v. Fowler, 147 IST. Y. 673. In condemnation proceedings under a special act, costs are gov- erned by section 3240 of the Code, not by 3372. Matter of City of Brooklyn, 148 N. Y. 107. In proceedings for a removal of justice of the peace, counsel fees and disbursements cannot be taxed. Matter of King, 130 N. Y. 602. Costs upon an inquisition of lunacy. Carter v. Beckwit\ 128 N. Y. 312. Upon a verdict for the defendant, sued for penalties for violation of the game laws, an award of costs against the county was proper. People v. Tanner, affirmed in 128 N. Y. 416. Error for court has to grant an extra allowance in a proceeding instituted by a trustee for leave to resign. Matter of Holden, 126 K Y. 589. It seems that there is no authority in such case to make an allowance to the new trustee. Id. "When has the court power to make an allowance to guardian for infants. J^^- Costs awarded against the plaintifiP in a prosecution under the game laws are collectible against the state. People ex rel. Fargo v. Bosendale, 142 N. Y. 670. Counter-Claim ; See Set-Off. In an action for the foreclosure of a mortgage, a lienor having subordinated his claim, counter-claim wasproperly dismissed. lipman v. Arohitectural Iron Works, 128 E". Y. 58. Failure to pay a legacy does not entitle _ legatee to possession of land otherwise devised as a counter-claim. Bvnam v. Coneys, 143 N. Y. 544. 2272 Cottntek-Claim— County. Counter-Claim — Continued. Facts wMch controvert plaintiff's claim and serve to defeat it as a cause of action are inconsistent with, the idea of counter-claim. Walker v. American Oeni/ral Ins. Co., 143 N. Y. 167. Counter-claim may be set up where goods are inferior to that called for by the contract. Zabrishie v. Central Vermont R. B. Co., 131 _N. T. 72. In order to be allowed it must arise out of the same action, as the claim. Rothschild v. Whitman, 133 K Y. 472. Where the complaint and answer set forth independent torts, though the one induced the other, counter-claim not allowed. Id. The counter-claim must be connected with plaintiff's cause of action. Id. The debts of a firm cannot be used to offset a sum due a member thereof on a personal transaction. Reelc V. Fhenix Ins. Co., 130 N". Y. 160. County ; See Constitutional Loajb ; Municipal Corporations ; Super- visors. Chapter 148 of 1893, validating the illegal proceedings of the Board of Supervisors of Essex county as to changing the county seat, is unconstitutional. Williams v. Boynton, 147 IT. Y. 426. Interest runs on the state tax payable by a county from the time when it was due. People v. Fitch, 148 IT. Y. 71. Section 179 of the Military Code, as amended in 1896, as to the payment of wages of armorers by the county, is constitutional. Matter of_ Bryant v. Palmer, 162 N. Y. 412. Maspeth Avenue in the counties of Kings and Queens is a public highway of which the Boards of Supervisors have control. People ex rel. Keene v. Board of Supervisors of Queens Co., 151 KY. 190. Chapter 428, Laws 1885, authorizing the audit by the Board of Claims of the claim of the county of Cayuga for reimburse- ments of expenses for the trials of certain convicts for crimes committed in state prison, is not unconstitutional. Boa/rd of Supervisors of Cayuga Co. v. State, 153 N". Y. 279. The claim of a county for reimbursement of the expenses of trials of convicts for crimes committed in state prison is not a private claim within the meaning of section 19, article 3 of the Con- stitution. . 7"^_ Chapter 934, Laws 1895, annexing a portion of the county of West- chester to the city and county of ISTew York, is constitutional. People ex rel. Henderson v. Supervisors of Westchester Co 147 K Y. 1. When, under section 130 of the Highway Law, a county is bound to contribute to the expenses of a free public bridge. People ex rel. Root v. Board of Supervisors, 146 N. Y. 107. County— CouiiTs. 2273 County — Continued. "What is a town bridge within the meaning of the statute. Id. A county which maintains an insane asylum is engaged in the discharge of a public duty, and is not liable for injury to an employe. Hughes v. County of Monroe, 147 'F. Y. 49. Eevenue received from the estates of, or from those illegally liable for the support of, lunatics in the asylum, and from the sale of surplus farm products, is not to be deemed a source of profit to the county so as to require the operation of the asylum to be treated as a private business. Id. County Clerk. Chapter 620, Laws 1893, changing the compensation of the clerk of Onondaga county from fees to a salary, although providing that it should take effect January 1, 1895, applied to the county clerk who took office on that date. People ex rel. Onondaga Cownty Somas. BTc. v. Butler, 147 N. Y. 164. County Court. Even though the defendant does not reside in the county the County Court has jurisdiction of an action to foreclose a mechanics' lien when the property is in the county. Ramen v. Smith, 148 IST. Y. 415. Courts ; See City Courts ; Constitutional lanjo / Court of Sessions ; Jurisdiction; Justices' Courts; Ma/rine Court; Oye/r am,d Ter- miner ; Superior Cowrt ; Surrogates^ Cowrts. A justice of the Supreme Court assigned to duty by the Appellate Division of another department has jurisdiction if he accepts such assignment. People v. lierrmamm,, 149 N. Y. 190. Section 232 of the Code as to the designation of Trial Term is only directory. People v. Youngs, 151 N. Y. 210. An irregularity in the designation of Trial Term may be cured by re-designation. Id. Power of courts is derived either from common law or statute, and whatever procedure is essential to exercise their functions is authorized. McQuigoM V. Pela/wwre, Lackanuanna, etc., R. R. Company, 129 ]Sr. Y. 50. Chapter 601 of 1895, abolishing the office of Police Justice in ]S"ew York city, is constitutional. Koch V. Mayor, 152 E". Y. 72. Objection to the jurisdiction of an extraordinary term of the Court of Oyer and Terminer that it was designated to be held on the same day as a regular term of such courts previously ap- pointed is not tenable. People v. Shea, 147 JST. Y. 78. 143 2274 Courts — Covexamts. Courts — Continued. The appointment of a term of court in incorrect words, but which misleads no one, will be sustained as valid. People V. McKane, 143 X. Y. 455. Covenants ; See Deeds ; Mortgages. The rule that the covenant of a stranger to a title is personal to the covenantee, and incapable of transmission by mere con- veyance of land applied. Mygatt v. Coe, 152 N. Y. 457. "When a surrender of possession by the wife of property owned by her jointly with her husband will not make his covenants in the deed executed by both as to her title attach to and run with the land. Id. Damages which a grantee can recover for breach of a covenant against incumbrances considered. MoGusMn v. Milbanlc, 152 N. Y. 297. "What legal possession of land is sufficient to carry covenant, valid at all events against aU extraneous intrusion, and capable of transfer and devolution. Mygatt v. Coe, 147 N. Y. 456. Though a covenant runs to the grantee, " his heirs and assigns " it does not dispense with the necessity of privity of estate in order to carry the covenant with the land, and these words wiU not make a covenant which in its nature or otherwise is personal, run with the land. Id. There must be a surrender by a wife to her husband of some interest or dominion over her real property, by some act or agreement on her part expressed or implied, which will take from her at least some right or incident ordinarily pertaining to the absolute ownership of real estate in order to give him any legal possession of her premises on which they lived. Id. Her husband may be asked whether or not he received any part of the consideration paid for and expressed in the deed of his wife. ■ Id. The force and effect of a formal and complete covenant of war- ranty will not be cut down by subsequent words of doubtful import. Cornish v. Capron, 136 JS^. Y. 232. Covenants of warranty and quiet enjoyment are broken by the foreclosure of a paramount mortgage and a sale thereunder to a purchaser who took possession. Id. A covenant of quiet enjoyment in a warranty deed is broken by the foreclosure of a paramount mortgage and eviction there- under. Jenks V. Quinn, 137 N. Y. 223. The fact that the plaintiff, without actual knowledge of the covenant, offered no objection to the sale, does not prevent him from recovering. Jd. A mere quit-claim deed is sufficient to transfer to the grantee the benefit of a covenant for quiet possession which grantor enjoyed. Id. CovEKANTs — Creditor's Suit, 2275 Covenants— Continued. Where the deed of one in mere possession contains a covenant that the wife was seized of the property conveyed, said cove- nant runs with the land, and the husband is liable to one who had acquired title through foreclosure. Mygatt v. Coe, 142 N. Y. T8. In such a case the mortgagor retains the legal estate, and the mortgagee has a lien upon it for security. Id. The covenants run to mortgagee and grantee of mortgagor in proportion to their respective rights, and are divisible ac- cordingly. Id. One in mere possession of land has an estate which may be conveyed. Id. Equitable assets can only be reached after the remedy at law has been exhausted. Harvey v. Brisbvn,, 143 N. Y. 151. "Where no public highway exists, the opening of one constitutes breach of quiet enjoyment. Hymes v. Esty, 133 N. Y. 342. In order to sustain an action for breach a defective title must be shown. Wilson v. Parshall, 129 N. Y. 223. A wrongful assertion, not true in fact, Avill not sustain an action for breach. Id. The covenant of a landlord to repair does not inure to the benefit of a stranger sustaining injury because of its breach. Sterger v. Van SicUen, 132 N. Y. 499. An agreement by adjoining lot owners that a space of eight feet on the front of the lots should be kept free from building was a conveyance of real estate within the Eevised Statutes, and re- quired the prescribed acknowledgment of married woman. Bradley v. Walker, 138 N. Y. 291. The record was not notice to a grantee of such married woman of the existence of such agreement. Id. What does not constitute such notice. Id. What covenants running with the land gave plaintiff, who became owner and resident upon one of the lots, conveyed subject to the agreement, right to an injunction restraining the use of defendant's premises for the purpose of dissecting. Eowla/nd v. Miller, 139 IST. Y. 93. A covenant by the grantee in a deed to pay all incumbrances on the premises by mortgage or otherwise, which deed reserves from its operation the dower interest of the wife of the grantor, will not sustain an action by such wife against the grantee for breach of the covenant by which she lost her dower right. Durnherr v. Bau, 135 N. Y. 219. Creditor ; See Debtor and Creditor. Creditor's Suit ; See Execution and Supplementary Proceedings ; Fraudulent Conveyance. An action is compulsorily referable brought by a general creditor 2276 Ceeditok's Suit. Creditor's Suit — Continued. of a deceased insolvent debtor under chapter Y40 of 1894 to set aside alleged conveyance. National Sfioe d; Leather Bh. v. Baker, 148 N. Y. 581. The commencement of an action in the nature of a creditor's bill does not create a lien upon his tangible personal property, sub- ject to a levj'^ by an execution, unless he procures a receiver to be appointed. Kitchen v. Lowery, 127 N. Y. 53. A creditor's action to set aside a general assignment cannot pro- ceed after the death of assignor, unless his personal represent- ative is made a party. First Nat. Bh. of Amsterdam v. Schuler, 153 N. Y. 163. When a creditor's action does not lie to set aside an assignment for benefit of creditors, because of greater preference than the statute allows. Central Nat. Bank v. Selegman, 138 N. Y. 435. It seems, that to sustain such an action to set aside a transfer or security given immediately before the assignment, the burden is on the plaintiff. Id. The fact that the amount of a preference in a general assignment was arrived at by computing compound interest upon the claim, and that the assignee paid over the full amount to the preferred creditor before the preference was adjudged invalid, will not entitle a creditor to recover the entire amount paid under the preference. Peyser v. Myers, 135 N. Y. 599. A general creditor cannot maintain an action to avoid judgments obtained against his debtor. Frothingham v. Hodenpyl, 135 N. Y. 630. An action by a judgment creditor, in his own behalf, to set aside a conveyance of the debtor as made in fraud of creditors, can be maintained only upon showing the issue and return of an execution unsatisfied in whole or in part. Prentiss v. Bowden, 145 IST. Y. 342. An execution issued on the day of, but after the death of the judgment debtor, without notice to his legal representatives or permission of the surrogate, is absolutely void. Id. Though it has no legal title as attaching creditor, plaintiff may maintain action as the real party interested. National Pa/rk Bank v. Goddard, 131 IST. Y. 494. Equity has jurisdiction to prevent multiplicity of suit. Id. Officers by whom replevin was made should be made parties. Id. A simple contract creditor cannot attack the transfer of property by his debtor until after return of execution unsatisfied. SpelmMn v. Freedman, 130 N. Y. 421. General creditors may maintain an action to set aside fraudulent confession of judgments. Id. Whatever is done with intent to defeat the statute is within the prohibition thereof. Id. Creditor's Suit — Criminal Law, I. 227T Creditor's Suit — Continued. A general creditor cannot maintain an action to set aside a fraud- ulent conveyance by his debtor. Briggs v. Austin, 129 N". Y. 208. Creditor's rights against the estates of deceased persons attach to ■ the land as a lien immediately upon the death of the owner. Rosseau v. Bleau, 131 N. Y. 1Y4. An action cannot be maintained to set aside a conveyance, though the deed is not delivered until after the grantor's death. Id. Statute confers no power upon an administrator to set aside a con- veyance made by his intestate, though the deed is not delivered until after intestate's death. Id. Alimony awarded to an innocent wife cannot be appropriated to- discharge a debt contracted before decree of divorce. Romaine v. Chauncey, 129 N. Y. 566. A court of equity will refuse its aid where granting it would work injustice. Id. Criminal Law ; See Disorderly Person ; Extortion ; Ext/radition / False Pretense; Felony; Forgery ; Homicide; Indictment; Larcenoj/; Malicious Mischief ; Perjv/ry; Police Court; Rape ,' Recognizance ; Seduction ; Sentence ; tfnla/wful Assemhl/y. I. Jurisdiction. II. Offenses. III. Evidence. lY. Indictment. V. Defenses. YI. Aeeest. YII. Peactice in Review. I JURISDICTIOK The County Court of a county in which false representations are made has jurisdiction of offense, which was committed partly in another county. People v. Pechens, 153 N. Y. 576. Section 6, article 6 of the Constitution is self-executing, and no order was necessary to transfer proceedings from the Court of Oyer and Terminer to the Supreme Court. People V. Roch, 150 N. Y. 291. It is the duty of the court, where it deems the evidence insufficient to warrant a conviction, to advise the jury to acquit, and the jury must obey the advice. People v. Ledwon, 153 E". Y. 10. The denial of a request to dismiss an indictment when evidence will not warrant a conviction, presents a question of law. Id. The summoning of trial jurors by mail is not prejudicial to de- fendant when all jurors quahfied to sit appear. People V. Burgess, 153 N. Y. 561. 2278 Ckiminal Law, I, II, III. Criminal Law — Continued. Objection to the jurisdiction of an extraordinary term of the Court of Oyer and Terminer that it was designated to be held on the same day as a regular term of such court previously appointed, is not tenable. People v. Shea, 147 JST. Y. 78. Where the verdict of conviction in a criminal case is set aside, owing to the relationship of a member of the court, such ver- dict is no bar to second trial for the same offense. People V. Connor, li2 JST. T. 130. II. OFFENSES. A person may be convicted of the crime of attempting to extort money, although the person threatened was decoy for the police at the time. People v. Gardner, 14-t N. T. 119. "When mental weakness does not ordinarily excuse from conse- quences of crime. People v. Bwrgess, 153 N. T. 561. One who procures by counsel the commission of a crime is re- sponsible therefor. People v. Peckens, 153 IS". Y. 576. When the setting fire to his own room by the defendant for the purpose of destroying insured property therein, constitutes arson in the first degree. People v. FanshoAJoe, 137 IST. Y. 68. Section 504 of the charter of Buffalo, requiring contracts with the city to bind the contractor not to discriminate against members of labor organizations, etc., is simply directory. Warren v. Beck, 144 N. Y. 225. The crime of abortion is not made out merely by proof of advice to take medicine for the purpose. People V. Phslps, 133 IST. Y. 2G7. The offense of attempting to commit a crime depends upon the mind and intent of the wrongdoer. People V. Gardner, 144 N. Y. 119. The age of consent fixed by the statute defining rape does not apply to the crime of seduction, but the consent essential to that crime may be given by a female of any age. People V. Nelson, 153 IST. Y. 90. The term " chaste character," as used in the statute relating to seduction under promise of marriage, does not mean reputation for chastity, but actual personal virtue. Id. Conducting a horse-race pursuant to chapter 570 of 1895 is not a crime within section 352 of the Penal Code. People ex rel. Lamrence v. Fallon, 152 N. Y. 12. Section 153 of the Public Health Law as amended in 1895., con- strued. People V. Hamher, 152 N. Y. 234. III. EVIDENCE. What is competent on the question of intent and deliberation. People V. Shea, 147 N. Y. 78. Criminal Law, III. 2279 Criminal Law — Continued. Evidence insufficient to sustain a defense of irresponsibility on ac- count of epilepsy. People v. Burgess, 153 N. Y. 561. One who is not an expert may testif v that a substance is blood. Id. Declarations of a confederate are admissible against the others. People V. Peohens, 153 N. Y. 5Y6. Evidence of similar transactions tending to show the existence of a scheme to defraud by similar devices to those practiced on complainant is admissible to show intent. _ Id. "When acts and declarations of each conspirator are binding on the others. Id. "What evidence may be given to prove conspiracy. Id. "What is sufficient evidence to corroborate a confession of homi- cide. People V. Hoch, 150 E". Y. 291. In a capital case question of motive is unimportant where other evidence points to defendant's guilt. People V. Feigenbaum, 148 N. Y. 636. "What it is essential that the tribunal before which the evidence is adduced shall be legally constituted, it is not essential that the connecting evidence shall be competent in every particular. People V. Spiegel, 143 JST. Y. 107. "What facts are not sufficient to sustain a conviction for selling liquor on Sunday. People v. Owens, 148 N. Y. 648. In a capital case what is held sufficient to corroborate testimony of accomplice. People v. Mayhew, 150 JST. Y. 346. Evidence of the relation of the parties may be given to determine whether the act was committed in a fit of passion or that of deliberation. People v. Barber, 149 N. Y. 256. "What evidence of defendant's relations with other women can- not be shown on the trial of an indictment for murder of defend- ant's second wife. People v. Strait, 148 N. Y. 566. Checks found on the person of a defendant, unless they are shown to be forgeries, are not admissible on the trial of an indictment for passing a forged check. People v. Altman, 147 N. Y. 473. Suspicious acts of defendant may be shown on the trial of indict- ment for receiving stolen goods. People V. Sohooley, 149 IST. Y. 99. "What evidence may be given as bearing on the question of iden- tity on the trial of indictment for receiving stolen goods. Id. "What evidence may be given on the trial of an indictment for receiving stolen goods. People v. McClure, 148 N. Y. 95. The existence of motive is of little or no importance in a case where there is no proof of commission of a crime. People V. Ledwon, 153 N. Y. 10. "What weight may be given testimony of a witness who is irre- sponsible either from mental or moral defects. Id. When a will made by the wife, prior to the marriage, giving her 2280 CEiinNAL Law, III, IV. Criminal Law — Continued. v ' property to her husband, if any, and if she died unmarried to defendant, is admissible on the question of motive. People V. Buchmimb, 145 IST. Y. 1. A deed made by the wife to defendant after marriage, and his conveyance of the property, are admissible. Id. Declarations of defendant showing hostile feelings toward his wife are relevant on the question of motive. Id. When a refusal to strike out all evidence on one count is proper. Id. Facts competent on the question of premeditation and deliberation. People V. Scott, 153 N. Y. 40. "What may be proof on a trial for murder in the first degree to establish motive. Id. What evidence is sufficient to sustain a conviction of murder in the first degree. People v. Young, 151 N. Y. 210. Facts sufficient to sustain a conviction of murder in the first de- degree. People V. Hampton, 144 N. Y. 639. Evidence sufficient to sustain a conviction of murder in the first degree. People v. Wilson, 145 N. Y. 628. Proof that party of words, "There go the burglars," is ad- missible as bearing upon the opportunity the suspected men had to enter into an agreement to resist arrest. PeopU V. Wilson, 145 N. Y. 628. Evidence that the suspected persons were brothers is also admis- sible as bearing on the issue of agreement between them to effect escape together of action. Id. IV. INDICTMENT. An indictment may, notwithstanding section 29 of the Penal Code, state facts. People v. PecJcens, 153 N. Y. 576. An indictment for false pretenses is sufficient if it states and nega- tives one false pretense. Id. An indictment for obtaining a deed by false pretenses which gives a description of the premises and states the consideration, the names of the grantor and grantee and the value of the deed, sets out the deed sufficiently. Id. A statement that the land was of a certain value is a sufficient allegation of the value of the deed. Id. When court has power to refuse to strike out previous counts in an indictment and retain them for reference. People v. McLaughlin, 150 N. Y. 365. What is sufficient information that the burglary was committed. Swart V. Rtchard, 148 N. Y. 264. Indictment not demurrable on ground that it charged two crimes, viz. : forging a check and intent to defraud a person by offer- ing such forged check. People v. Altman, 147 N. Y. 473. Identity in names of offenses at common law and under a statute Criminal Law, IV, V, VI. 2281 Criminal Law — Continued. does not necessarily imply that the same precise constituents, and no other, enter into each. Peojple v. Most, 128 N. Y. 108. "What is a good sufficient indictment for perjury. People V. WilUams, 149 N. T. 1. Allegations in a common-law action in indictment for murder, held sufficient to sustain a conviction for murder in the first degree. People v. Constantino, 153 N. Y. 24. "Within what time an indictment for seduction may be filed. People V. Ifelson, 153 JST. Y. 90. Minutes of the grand jury are not common-law evidence as to what a witness testified to before them. People V. Conroy, 153 JST. Y. 174. Extent of cross-examination of defendant who offers himself as a witness in a criminal action, considered. Id. "When separate counts for burglary, larceny and receiving stolen goods be joined in same indictment. People v. Wilson, 151 N. Y. 403. What is not sufficient to exclude inference that a person had pos- session of stolen property. Id. An indictment will not be dismissed on the sole ground that a circular of a committee of public safety, advising grand jurors as to their duties, was circulated among them. People V. Shea, 147 N. Y. 78. V. DEFENSES. Killing committed in passion excited by previous treatment of the person killed does not constitute murder in the first degree. People V. Ba/rberi, 149 N. Y. 256, There may be deliberation and premeditation even where the act of homicide is committed in a fit of passion. People V. Tuzckewitz, 149 IS". Y. 240. "What testimony does not discredit evidence of an accomplice. People V. Manfhew, 150 N. Y. 346. Eight of self-defense discussed. People V. Constantino, 153 IST. Y. 24. Partial or incipient insanity is not a sufficient excuse from criminal liability under Penal Code, section 21. People V. ToA^lor, 188 N. Y. 398. An insane delusion that the deceased, a fellow-prisoner, was act- ing as a spy upon the defendant who had devised a way of escape from prison, held, not sufficient ground for relieving him from responsibility. Id. VI. PRACTICE. " "Where the prosecution, on trial for an attempt to extort money,' has given evidence of prior intimacy between the defendant and complainant, it is error to exclude evidence to show that in his 2282 Criminal Law, VI. Criminal Law — Continued. relation with the complainant the defendant was acting under the direction of the Society for the Prevention of Crime. People V. Gardner, 144 N". Y. 119. Where no violation of statute is shown the accused cannot be held. People V. Van Zile, 143 N. Y. 368. A general verdict will be set aside where a prior specific charge was erroneous. Id. It is error for the court not to submit the question of criminal intent to the jury on the trial of an indictment for forgery in the second degree. People v. Wilman, 148 N. Y. 29. A postponement of a trial for murder is properly denied where it IS not asked on the ground of absence of witnesses. People V. Shea, 147 IST. Y. 78. Whether the kilhng was deliberate or premeditated is always a question for the jury in the light of the facts. People V. Conroy, 153 N". Y. 174. When stenographer's minutes in a capital case may be changed. Id. Compelling a defendant in a criminal case to stand up for identifi- cation by a witness is not a violation of the constitutional pro- vision protecting him from being compelled to be a witness against himself. People v. Gardner, 144 N. Y. 119. Premises where the homicide took place may be shown by photo- fraphs. People v. Pustolha, 149 E". Y. 570. at questions are not leading in a prosecution for wife murder. People v. Nino, 149 N. Y. 317. Evidence of the mental condition of defendant in a prosecution for murder at the time of the trial is admissible when. People v. Bock, 150 N. Y. 291. What charge on the subject of a " reasonable doubt " is proper. People V. Backer, 153 E: Y. 111. Where a witness has previously testified in a murder trial that defendant was sick at the time it was claimed he committed the fatal act, it is not proper to allow the question as to the par- ticular character of the sickness when the result is to elicit tes- timony tending to prejudice the jury against the defendant. People V. Corey, 148 N. Y. 476. A charge to the jury on a murder trial as to defendant's intoxi- cation is erroneous when it fails to state the rule laid down in section 22, of the Penal Code with sufficient clearness that partial intoxication may be considered on the question of intent in determining the degree of the crime. Id. When a refusal to appoint an interpreter for defendant is not prejudicial error. People v. Constantino, 153 N. Y. 24. • It is not error for the court, when charging on the question of deliberation and premeditation, to illustrate a minute of time by his watch. fd. Criminal Law, VI, VII. 228S CrimiQal Law — Continued. It is prejudicial error for the court to erroneously state to an in- sanity expert that there had been no testimony of a physician as to delusions. People v. Nino, 149 N. Y. 31Y. What is error for court to charge on the issue of insanity. Id. An expert based his opinion as to insanity on certain interviews,, and therefore it was proper to show the conversations which were had. Id. "What does not constitute a separation of a jury within section 465 of the Code of Criminal Procedure. People V. Hoch, 150 N. Y. 291. The magistrate of special sessions should keep minutes of testi- mony, that their determination may be reviewed on appeal. People V. Giles, 152 N. Y. 136. On an appeal under section 749 of the Code of Civil Procedure from the commitment of children pursuant to section 291 of the Penal Code, when the evidence upon which the appeal is allowed does not allege any errors with reference to a determination of the facts, the evidence is not required to be returned, and the failure of the magistrate to preserve it furnishes no ground for reversal. Id, The Court of Appeals has power to require literal copies of stenog- rapher's minutes in such a case. Id. Purely statuory offenses cannot "be established by implication. People V. Phyfe, 136 N. Y. 654. A charge that the heat of passion and feeling produced by motives of anger, hatred or revenge is not insanity, etc., is not erroneous. People V. Foy, 138 N. Y. 664. At reply to defendant's counsel by court that, " If the facts are against the defendant, that is not my fault ; it is unfortunate, but I cannot help it," unobjectionable. People V. Zeach, 146 K Y. 392. A conviction for seduction under promise of marriage under sec- tion 284 of the Penal Code, canuot be based on a conditional promise to marry. People v. Van Alstyne, 144 N". Y. 361. When it is proper to cross-examine a witness as to facts of a pre- vious examination of defendant on previous trial for murder. People V. Iloch, 150 JST. Y. 291. A reprieve by the governor to a day certain, in a capital case, authorizes the execution of sentence on that day. People V. Buchanan, 146 JST. Y. 264. Where, however, the time fixed by the reprieve has passed, defend- ant should be brought before the court for sentence. Id. VII. PKACTICE IN EEVIEW. When the Court of Appeals will not disturb a verdict of murder in the first degree. People v. Conroy, 153 N. Y. 174. When it is apparent that no harm resulted to defendant or admis- 2284 Ceiminal Law, VII. Criminal La.yr— Continued. sion of incompetency, evidence is not ground for reversal in a capital case. People v. Burgess, 153 N. Y. 561. Power of Court of Appeals to order new trial in capital case in the absence of exception. People v. Hoch, 150 IJjJ. T. 291. The verdict of the jury in a capital case on the question of in- sanity will be regarded as conclusive by the Court of Appeals, unless clearly against the weight of evidence. Id. "When a record shows that defendant has been found guilty of receiving stolen goods. People v. McClure, 148 Is. T. 95. A statement by witness to jury viewing premises in the absence of defendant is a ground for a new trial. People V. Oallo, 149 1^. T. 106. Cases where Appellate Division set aside a trial and conviction on the ground that a fair and impartial trial could not be had in the county. People v. McLaugMvn, 150 N. T. 365. Even where no exception was taken the Court of Appeals may review erroneous statements of law or improper comments on the facts. People v. Barberi, 149 N. Y. 256. Any valid exception taken by defendant in a capital case must be regarded by the Court of Appeals. People V. Corey, 148 IST. Y. 476. The fact that jury in charge of officers attended church is not f round for reversal. People v. Constantino, 153 E". Y. 24. en the power of the Court of^ Appeals to order a new trial in capital cases is to be exercised. Id. When an appeal will not lie to the Court of Appeals from an or- der denying a motion for a new trial in a capital case on the ground of newly-discovered evidence. People V. Mayhew, 151 IST. Y. 543. A disallowance of a demurrer to an indictment may be reviewed on an appeal from the judgment of conviction, even though the objection was not renewed on the trial. People V. Wilson, 151 K Y. 403. When the Court of Appeals will not grant a new trial in a capital case for errors in ruling. People V. Youngs, 151 N". Y. 210. A conviction of murder in the first degree will not be reversed by the Court of Appeals where the finding is not clearly against the weight of evidence. People v. Shea, 147 N. Y. 78. A new trial will not be granted in a criminal case merelj^ because the names of some of the witnesses examined before the grand jury were not indorsed on the indictment, especially where de- fendant was not prejudiced by such omission. Id. "Whether or not a new trial shall be granted in a criminal case on the-ground of a separation of the jurors after the case was sub- mitted to them, is in the discretion of the trial court. People V. Buchanan, 146 N. Y. 264. Cross-Examination— Damages, I. 2285 Cross-Examination ; See Witness. Curtesy ; See Hushcmd and Wife. The right of a tenant by the curtesy is a legal right to be en- forced against the claimant injDOssession. Marvey v. Brisbin, 143 N. T. 151. A tenant by the curtesy in lands is entitled to the use of the fund during his lifetime. Matter of Camp, 126 IST. Y. 377. In such case, the right of the ward, on attaining majority, is not entitled to demand immediate possession of the fund. Id. Custom and Usage ; See Contracts. D. Damages; See Assault and Battery ; Breach of Promise to Ma/rry ; Contracts ; Covenants ; Libel and Slander ; Municipal Corpo- rations / Negligence ; Sales ; Tort ; Vendor and Purchaser. I. Liability foe. II. Aggeavation and Mitigation. III. Measuee or Damages. 1. Generally. 2. For Breach of Contract. 3. For Wrongs. I. LIABILITY FOR ; See Titles of Addons. Eecovery may be had for the diminution of rental value. Mortimer v. Manhattan Elev. R. R. Co., 129 N. Y. 81. Distinction between damages to fee and for wrong-doing is recognized. Mitchell v. Met. Elev. R. R. Co., 132 N. Y. 552. Only damages actually incurred can be recovered. Rumsey v. JST. Y. c& Wew England R. R. Co., 133 N. Y. 79. Damages as a condition of avoiding an injunction are only such as would be given in condemnation proceedings. Bohm V. Met. Elevated Ry. Co., 129 IST. Y. 576. liule of damages in such case considered. Id. If the erection of railroad has not caused a decrease, or prevented an increase, no damages are shown. Id. The effect of the erection of the railroad upon other property- has no effect upon question of damages. Id. Eight of abutting owner to recover damages for injury to the fee is reaffirmed. Eughes v. Met. Elev. R. R. Co., 130 IST. Y. 14. Equitable principles are not available in an action for damages Rumsey v. W. T.&New England R. R. Co., 133 N. Y. 79. The price specified in a contract of sale is suflcient to justify a 2286 Damages, I.\ Damages — Continued. jury in finding that sum as damages, in a suit for the conver- sion of the property. Herald Y. Van Siclen, affirmed without opinion, 128 IST. Y. 612. The owner of premises formerly used as a brickyard is entitled to recover against a railroad, which, without authority, has cut off communication with an adjoining river, the fair rental value of the property if such obstruction did not exist. Bumsey v. JV. Y. <& New England R. E. Co., 136 IST. Y. 543. An obligation to pay in specific articles becomes one for the pay- ment of money on the refusal to deliver the articles. New York News Pvhlishing Company v. National Steam- ship Co., 1-18 K Y. 39. Damages for personal injuries are in nature of compensation for pecuniary loss. Barnes v. Keene, 132 !N". Y. 13. "Where plaintiff proved the value of his services, evidence tending to present an erroneous measure of damages is inadmissible. Id. The pecuniary condition of plaintiff has no bearing on question of damages. Id. Consequential damages for loss of wife's services can only be re- covered by the husband. Bloechensha v. Howa/rd Mission cfe Home for Little Wojir- derers, 130 N. Y. 497. A party to a fraudulent contract is liable for nominal, if not ac- tual, damages. Pryer v. Foster, 130 N. Y. 171. In an action at law for breach of contract, damages as for specific performance cannot be allowed. Matthews v. Matthews, 133 IST. Y. 679. A person is entitled to recover for actual expenses, but not for uncertain prospective profits. Bernstevn v. Meeeh,\2,^ N. Y. 354. Upon the violation of a covenant running with the land, damages might be given as for a permanent injury. Amerman v. Deane, 132 N. Y. 355. A party is entitled to recover the amount agreed upon, for ser- vices rendered. Porter v. Dunn, 131 N. Y. 314. Expenditures are not included in amount agreed upon for ser- vices. Id. , Plaintiff can only recover nominal damages where no loss has been sustained. Barnes v. Brown, 130 IST. Y. 372. A pledgee of promissory notes, who surrenders them without con- sideration to the maker, who is insolvent, becomes liable to the pledger for their conversion. Griggs v. Day, 136 N. Y. 152. If the property is leased for a special purpose, which is known to the lessor, and possession is refused because of a prior lease to another lessee or of other fault of the lessor, the lessee may re- cover his actual and necessary expenses. Friedland v. Myers, 139 N. Y. 432. Damages, I. 2287 Damages — Continued. Where the lessee, who could not gain possession, was a druggist, and he was obliged to sell counters and fixtures at public auc- tion, he was entitled to recover for his loss thereon. Id. A contract for building a railroad, provided that defendant had a right to dissolve it at any time on five days' notice, and plain- tiff agreed not to make any claim for delay, and defendant sus- pended the work, but requested plaintiff to keep his force ready to resume it when required, contractor -^vas only entitled to re- cover for the work done, and the expense of retaining his men. Curnan v. Delaware cfe Otsego B. R. Co., 138 Sf. Y. 480. One whose stock was unlawfully pledged by another may recover the highest amount for which it sold within a reasonable time after such conversion, less the unsatisfied portion of the debt for which it was pledged. Smith v. Savin, 141 N. Y. 315. A verdict for plaintiff awarding damages for injuries resulting in depriving the plaintiff of prospective offspring is erroneous. Butler V. Manhattan By. Co., 143 IST. Y. 417. A sub-lessor is liable for breach of covenant to the extent of the amount paid by his lessee. Matter of Strashurger, 132 IST. Y. 128. But where the breach occurred through the lessor's misfortune, insanity, the strict rule of damages does not apply. Id. "Where no loss is sustained by breach, nominal cfamages may be given. Id. Where a sub-lessor becomes insane, payment to the superior land- lord will protect sub-lessee. Id. Proceedings for assessment of damages is not like trial of an action. Bossout y. Borne, Watertown, etc., B. B. Co., 131 N. Y. 37. "Where the judgment of the court below is sustained the inquisition is similar to an ordinary inquest. Id. A motion to set aside an inquisition is largely in the discretion of the court. Id. Under the old practice, if injustice had been done, the court would set aside the inquisition. Id. The amendment of the Constitution prohibiting any limit of recoverv in actions for injuries resulting in death, is not retro- spective. Isola V. Weber, 147 IST. Y. 329. Presumptive profits may be recovered by a tenant who has been evicted and whose business is injured by the wrong of his land- lord. Snow V. Pulitzer, 142 IST. Y. 263 "Where loss in the rental occurs through lessee's breach of covenant, the amount of damages is a question for the jury. ^ U. S. Trust Co. V. O'Brien, 143 N. Y. 284. Neither party can recover in common law actions for maritime torts where both vessels are at fault. JVew York Ha/rlor Towboat Go. v. N. Y., L. K <& W. B. B. Co., 148 N. Y. 574. 2288 Damages, II, III. Damages — Continued. II. AGGEAVATIOJST AND MITIGATIOK Jury may award punitive as well as damages for loss of service for willful seduction. Lcmyer v. Fntoher, 130 IST. T. 239. Punitive damages may be awarded for unprovoked assault. Connera v. Walsli, 131 K Y. 590. In an action for libel the jury may award punitive damages when motive is proven. Holmes v. Jones, 147 N^. T. 59. Proof of falsity of a libelous publication is evidence of malice for which exemplary damages may be awarded. Wa/rner v. Press Publishing Co., 132 IS. Y. 181. A libel recklessly or carelessly published will support an award of punitive damages. Id. III. MEASUKE OF DAMAGES. 1. Generally. The apportionment of damages, when sustained by evidence, wiU be sustained. Messenger v. Manhattan Ry. Co., 129 JN". Y. 502. The effect of the erection of a railroad may be considered as bear- ing upon the rental, but not upon the fee value. Id. The element of noise of trains can be considered in abutter's action. American Bank Note Co. v. N. T. Elevated R. R. Co., 129 N. Y. 252. But noise cannot be considered in fixing the sum which defendant must pay for fee damage to prevent the issuing of ah injunction. Id. "Where the benefits to land taken equal or exceed the injuries, no award can be made. Odell V. N. T. Elevated R. R. Co., 130 K Y. 690. A refusal to find as a fact in action for fee damage that the value of the assessments taken, considered alone, was merely nominal, held, while erroneous, not to be sufficient ground for reversal, where the correct rule in ascertaining the damages was followed. Sixth Ave. R. R. Co. v. Metropolitan, El. R. Co., 138 N. Y. 548. The refusal of the court to state as a conclusion of law that in order to recover beyond a nominal sum for the taking of ease- ments plaintiff must establish by a preponderance of proof that he has suffered consequential damages, in such case, is not reversible error. Id. "Where the damages awarded were for injury to the easements of air, light and access only, a refusal to exclude evidence of noise and vibration was harmless. Id. A refusal by the referee to find that the easements, aside from any damage to the lot, have in themselves a nominal value only, held, error. Livingston v. Metropolitan El. Ry. Co., 138 E". Y. 76. Damages, III. 2289 Damages — Continued. A refusal to find as matter of law that the special benefits result- ing from the road should be offset against any consequential damages to the lot from the appropriation of the easements, held, error. ' Id. "Where one building occupies two lots, the damages cannot be limited to the lot affected by the erection of a railroad. Stevens V. JST. t. Elevated R. E. Co., 130 JST. Y. 95. The measure of damages upon the unauthorized purchase of stock by a broker to close an account for future dehvery is the differ- ence between the amount paid and what the stock might have been bought for subsequently if ordered by the purchaser. Rogers v. Wiley, 131 JST. Y. 527. In an action by an abutting owner against an elevated railroad the element of noise may be considered in ascertaining past damages. BlscJioffv. iV". Y. El. R. R. Co., 138 E". Y. 257. Benefits accruing from the road are to be considered in reduction of damages for the injuries sustained. Id. In fixing the sum to be paid by an elevated railroad in avoidance of an injunction in an abutter's action, the damages are not to be limited to those caused by the structure only, but the opera- tion of the road is to be deemed an element of damage. Sperb V. Metropolitan El. Ry. Co., 137 N. Y. 155. A refusal to find that the easements, aside from consequential damages, were only of nominal value, and that the benefits to the abutting property should be offset, is error. Id. The principle wnich should guide an award of damages to be paid by the railroad company in order to obviate the injunction is the same as in proceedings under the statute to condemn prop- erty for the railroad use. Id. "What sums may be recovered in an action by stockholders against directors of a corporation for losses caused by their negligence. Bloom V. Ifational United Benefit Savings S loan Co., 152 K Y. 114. Measure of damages in case of injury to building by leakage of water from canals, considered. Slavin v. State, 152 JST. Y. 45. In computing the sum to be paid by defendant for plaintiff's prop- erty rights in the street, plaintiff is not entitled to recover anything except damage to his land. Steubing v. W. T. El. R. R. Co., 138 N. Y. 658. The principles laid down in DrucJcer v. Metropolitan Ry. Co., 106 ]Sr. Y. 157, applied. Sherwood v. Metropolitan Elevated R. R. Co., aflttrmed without opinion in 128 IST. Y. 624. A purchaser of property is entitled to cover the actual damages sustained during his ownership because of past diminution of rental values. -'<*• 144 2290 Damages, III. Damages — Continued. All benefits to the property, from the railroad, are to be con- sidered, and damages over such benefits are recoverable. Sul/ro V. Manhattan By. Co., 137 IST. Y. 592. A refusal to find that the easements taken were only of nominal value is error. -^• To same effect, Saxton v. N. Y. El. R. E. Co., 139 N. Y. 320. It is proper to submit to the jury whether the obstruction of the street diminished the rental value of houses. Williams v. BrooUyn Elevated R. R. Co., 126 IST. Y. 96. It is proper to permit the jury to award damages for loss sus- tained through inability of plaintiff to rent the houses from time to time. Id. D.amages for diverting water from defendant's pond considered. Spencer v. Kilmer, 151 N. Y. 390. The jury have the right to award interest upon unliquidated damages. Moore v. N. T. Elevated R. R. Co., 126 N. Y. 671. 2. For Breach of Contract. Measure of damages for breach of covenant is the diminution in value of the property granted. Hymes v. EsUy, 133 N. Y. 342. "Whether the cases allowing the purchase price or a part of it as damages should be allowed, — qucere ? Id. Damages which a grantee can recover for breach of a covenant against incumbrances considered. McGuckvn v. Millank, 152 IST. Y. 297. "Where defendant agreed to let portion of his store to plaintiff, damages for breach of such arrangement may be based upon the value of the agreement to plaintiff when breach occurred. Dickinson v. Ha/rt, 142 E". Y. 183. Proof of gross amount of sales, of net profits and of income dur- ing continuance of agreement will furnish a basis to ascertain value of agreement. Id. Measure of damages for breach to repair, under lease reserving to the landlord a right of re-entry to make repairs, and providing that in such case the' rent shall be suspended " in similar man- ner and proportion," as in case of fire, considered. Thomson- Houston Electric Co. v. Durant Land Imp. Co., 144 N. Y. 34. Measure of damage where city fails to put lessee of wharfage rights in possession. Eastman v. Mayor, 152 N. Y. 468. Measure of damages against a city preventing the lessee from acquiring possession by keeping a barge moored in front of the wharf. Id. "Where a contract for board and lodging provides "no deduc- tion in case of absence," the measure of damage is the contract price. Wilkinson v. Davtes, 146 Is". Y. 25. Damages, III — Debtor and Ckeditok. 2291 Damages — Continued. Measure of damages for breach of contract of sale of perishable articles. Todd v. Gamble, 148 K Y. 382. A contract for the sale of ice provided for its shipment, and the shrinkage during transit falls upon the buver. (Jlark V. Stewart, 121 E". Y. 676. Measure of damages for the violation bj'^ plaintiffs of an agree- ment not to manufacture certain machines is the amount of the profit and does not include royalties. Blake V. Xrom., 128 N. Y. 64. 3. For Wrongs. Measure of damages in an action for a wrongful discharge. Watson V. Bussell, 149 N. Y. 388. What libel will support an award of punitive damages. Smith V. Matthews, 152 N. Y. 152. A verdict for $8,000 for injuries resulting in curvature of spine is not excessive. Bennett v. N. Y. C. R. E. Co., 133 N. Y. 563. A verdict for $8,000 for serious and permanent injuries is not excessive. Alexander v. Mochester City amd Brighton R. R. Co., 128 N. Y. 13. Verdict of $14,000 for permanent injuries and disfigurement sus- tained. Wallace y. vacuum Oil Co., affirmed, 128 N. Y. 579. Plaintiff is entitled to recover not only for loss of services up to time of trial, but for prospective loss and for actual expenses necessarily incurred. JDollard v. Roberts, 130 N. Y. 269. In an action to recover damages to property by reason of negli- gence on the part of the defendant, it is within the power of the jury to include in their award of damages interest on the sum found. Wilson v. City of Troy, 135 N". Y. 96. In action for personal injuries, plaintiff can recover for future pain as well as past. EoMe V. N. Y., New Han)en, etc., R. R. Co., 132 E". Y. 160. Death by Negligence ; See Negligence. An action for damages for negligence or wrongful act causing death is wholly statutory. Slniber v. McEntee, 142 N. Y. 200. Payment to a person who does not in a legal sense represent the action does not bar right of action. Id. A compromise by a person having no present interest in such claim is not a bar to an action by such person in a representa- tive capacity. I'^- Debtor and Creditor; See Assignment for Creditors; Compro- mise; Creditor's Suit ; Fraudulent Conveyances; Insolvency; Mortgages; Partnership; Payments; Pledge; Subrogation; Trusts. What transfer by an insolvent debtor is not within the statute 2292 Debtor and Creditor — Decedents' Estates. Debtor and Creditor — Continued. prohibiting preferences in general assignment in excess of one- third of the assigned estate. ToTn/phvns t. Htmter, 149 N. T. 117. A debtor who, by direction of the creditor, pays money to a third person for the benefit of another, is not liable for a diversion of the money by such third person. Knock V. Von Bernuth, 145 N. T. 643. "What transfers of property by debtor cannot be considered as a violation of the General Assignment Act. Maas V. Falh, 146 IST. Y. 34. A lien on property, personal or real, given as security for debt, is not impaired because the remedy at law for the recovery of the debt is barred. Hulbert v. aarh, 128 K T. 295. An assignment of a contract with the United States is valid as between the parties, and vests in the assignees as against the contractor and his creditors who had notice of the assignment, with the right of subsequent payments for goods produced by them. Matter of Rome, 153 JST. Y. 522. "Where personal property is assigned as collateral for a particular debt, creditor cannot, after payment of such debt, retain col- lateral as security for other debts. Armstrong v. McLecm, 153 N". Y. 490. A secret agreement giving a benefit to one creditor is illegal, though it does not avoid a composition agreement between the creditor and debtor. Remover Nat. Bamk v. Blake, 142 K Y. 404. "Where the composition agreement provides for the execution of four series of notes by the debtor, the last two to be indorsed by a third person, a secret arrangement by which the latter , indorses all the four notes of a particular creditor will not prevent the latter from recovering upon the indorsement of one of the later notes pursuant to agreement. Id. Decedents' Estates ; See Executors amd Administrators. When a memoranda of indebtedness found among testator's papers is competent as an admission against the estate. Matter of Oallagher v. Estate of Brewster, 153 E". Y. 364. Such a memoranda might be considered with proof of services as an intent on the part of the testator to pay for such services. Id. The short Statute of Limitations cannot be evaded by successive presentations of same claims in different forms. Titus V. Poole, 145 N. Y. 414. A claim against a decedent's estate need not be stated with legal precision. Id. "Where an action to recover for fraudulent representations is brought, and the plaintiff is nonsuited, an action based upon Decedents' Estates — Deeds. 229S Decedents' Estates — Continued. such representations as warranties is within section 405 of the Code, and may be maintained if brought within a year. Id. What claims against decedent's estate are referable under the statute. Matter of Van Slooten v. Dodge, 145 E". Y. 327. What claim is not referable. Id. Duty of court, upon a refusal of one or more of the referees named to serve, to appoint others. HusUs V. Aldridge, 144 K Y. 608. Deceit ; See Fraud. False representations as to a material fact peculiarly within a party's knowledge is ground for action. Schumaher v. Mather, 133 N. Y. 690. Otherwise where the party has the means of ascertaining the truth of the representations. Id. Where in the sale of stock a stockholder suffers loss on account of false statements of the corporation oiflcers, an action for deceit may be maintained against such officers. Bothmiller v. Stein, 143 JST. Y. 681. The plaintiff was not bound to verify the report made to him by the directors. Id. Decree ; See Equity Practice ; Judgment. Dedication; See Adverse Possession ; Easement; Highways. What does not constitute a dedication of property for a public highway. Ma/rh v. Village of West Troy, 151 N. Y. 453. Before land can become a public highway by dedication there must be an acceptance by some formal action of the public authorities. People v. Underhill, 144 N. i . 316.' What is not sufficient to show an acceptance by the village au- thorities. Id. Deeds; See Adverse Possession ; Cloud on Title ; Covenants; Exe- cution and Su,]yplementa/ry Proceedings ; Foreclosv/re ; Judicial Sales ; Recording Conveyances ; Pejormation of Instruments ; Title to Land ; Vendor and Purchaser. I. Execution, Parties and Yaliditt. II. Delivery. III. CONSTEUCTION. JY. Dbsceiption oe Premises. V. Appurtenances. VI. Conditions and Recitals. YII. Covenants. 2294 Deeds, I. Daeds — Continued. I. EXECUTION, PAETIES AND VALIDITY. In the absence of explicit language, the court will regard circum- stances attending execution of contract. Dexter v. Beard, 130 IST. Y. 549. A grantee who takes a deed under an agreement to sell the land and account for the proceeds is entitled to convey such lands to a purchaser. Wilson v. ParsJiall, 129 N". Y. 223. The title of a 'bona fide purchaser in fee' is not affected by the title under which tenants hold. mnton V. N. Y. Mev. E. E. Co., 130 K Y. 332. A grantor having received the benefit of his deed, absolute in form, but intended as security for advances, cannot assert any claim to the title or right to redeem. I^. Possession by a third person under a tax lease does not void a deed. King v. Townshend, 141 N. Y. 368. A conveyance to three persons described as trustees of an asso- ciation, as joint tenants, and to the survivor of them, his heirs and assigns, will give an authority to sell. Id. In order to constitute a breach of condition it must appear that the true spirit and purpose of a conveyance has been violated. Ease V. Hcuwley, 141 JST. Y. 366. "What does not constitute adverse possession against the remain- derman rendering his deed void under the Champerty Act. Scmd V. Church, 152 JST. Y. 1Y4. The record of an agreement to sell lands when they are acquired by the promisor, who has no title at the time, is not construct- ive notice to a subsequent mortgagee of the premises. Olvphant V. B^lrns, 146 N. Y. 218. The recording act protects a purchaser by a quitclaim deed against a prior deed which was unrecorded and of which he had no notice. WilJielm v. Wilhen, 149 N. Y. 447. Section 53 of the statute of uses and trusts, construed. Schierloh v. Schierloh, 148 K Y. 103. In a conveyance of mineral ores, granite does not pass. Armstrong v. Lake Champlain Grcmite Co., 147 N. Y. 495. "What passes under a conveyance where it appears from the deed that the intentions of the parties is that the mines shall be under ground. Id. "When the Statute of Limitations begins to run in a case where a deed is so ambiguous on its face that it does not necessarily in- clude more land than was intended to be conveyed. D'eForest v. Walters", \^% IST. Y. 229. "When a trust deed of personal property was held not to be re- voked by the will. Townsend v. Allen, affirmed without opinion, 126 N. Y. 646. A grantor of land by deed cannot retain ownership of a building by oral agreement. Leonard v. Clough, 133 N. Y. 292. Deeds, I, II, III, 2295 Deeds — Continued. Under 1 Eevised Statutes, 739, section 143, only the estate of gran- tor passes, and a conveyance cannot affect interests in remainder. Tliomjpson v. Simpson, 128 JST. Y. 2Y0. The provision was intended to do away with the doctrine of the ancient law whereby a feoffment made by a life tenant had the power of creating an actual estate, etc. Id. "When the word heirs may be construed as meaning children, and the grant to heirs be held for their benefit. Heath v. Hewitt, 12Y N. Y. 166. II. DELIVEEY. Legal effect of delivery of a deed to third person with instruc- tions to deliver it to grantee, vests title in grantee. Rosseau v. Bleau, 131 IST. Y. 177. Delivery of deed duly executed, to be retained until after grantor's death and then recorded, carries a good title. Diefendorf v. Diefendorf, 132 E . Y. 100. Tender on the trial of an action for specific performance and deposit with the clerk of the court of a deed executed by all the vendors, is a good delivery in escrow, which is not defeated by the death of one of the vendors before its actual delivery to the purchaser. Webster v. Kings County Trust Co., 145 N". Y. 275. No presumption of the delivery of a deed can arise from an un- authorized record made half a century after the deed was drawn. Cxissack v. Tweedy, 126 N. Y. 81. Under what circumstances a deed is to be regarded as undelivered and inoperative. Id. III. CONSTEUCTIOK Usage of parties under an ancient grant aids in construing its obscure terms. McRdberts v. Beyman, 132 N. Y. 73. Where the owner of an entire block has filed a map showing an alley-way running from the center thereof, and has conveyed lots by separate deeds referring to said map, in some instances with a specific grant of the ri^t of way of the alley, and in all cases mentioning the alley and referring to the way such deeds will beheld to operate as a conveyance of the fee of one- half of such alley. Hennessy v. Murdoch, 137 JS". Y. 317. The intention of the parties, as shown by their acts, govern the construction of an instrument. Harris v. OaUey, 130 IST. Y. 1. Where the owner executes and delivers a deed of real property, containing upon it a certificate of his appearance before an officer authorized by law to take acknowledgments at a place within his jurisdiction, and an acknowledgment of its execution, and 2296 Deeds, III, IV. Deeds — Continued. the certificate is signed by the officer, he cannot subsequently allege the invalidity of the certificate. Mut. Life Ins. Co. v. Cm-ey, 135 JST. Y. 326. One acquiring title under a mortgage subsequently executed by the grantor is equally bound by such deed. Id. Section 936 of the Code, which declares that the certificate of acknowledgment of a conveyance is not conclusive and that it may be rebutted and the effect thereof contested by a party affected thereby, cannot be invoked to prevent the operation of an estoppel by deed. Id. A subsequent agreement by a grantee who has received an abso- lute conveyance in payment of a debt without any defeasance in the deed, stipulating that if he seUs the property he will give the grantor the refusal to purchase, or if he sells a part suf- ficient to pay the debt he will re-convey, does not convert the fee into a defeasible estate and permit recourse to the land in case the grantee disregarded the agreement. PondY. Hwrwood, 139 IST. T. 111. A conveyance in fee, with reservation, is construed strongly against grantor. Grafton v. Moir, 130 N. Y. 465. The reservation of a right of way means simply the right to pass over it. Id. The way need only be such as is reasonably necessary and con- venient. Id. A conveyance of land should be construed so as to effectuate the intention of the parties. Blachman v. St/riker, 142 N. Y. 656. An exception or reservation in a deed is to be taken most favor- ably to the grantee, and where there is doubt he should have its benefit. Id. The intention of the parties is to be gathered by reading the en- tire context. Id. Contemporaneous statements of grantees of rights to take " min- erals or ores " is incompetent. Armst/rong v. Lalce Chamiplain Granite Co., 147 N". Y. 495. Where a party sold a lot according to a map first filed, and there- after filed a second map, making an alley- way on the line of the lot first disposed of, it is held that the purchasers under the second map take title as described in the first map, subject to the easement created by the second map. Howe V. Bell, 143 N. Y. 190. lY. DESCEIPTIOlSr OF PREMISES. An ancient deed bounding by a road refers to the road as used. Blachman v. Biley, 138 IST. Y. 318. Where the description was " beginning at a point on the east side " of a road and thence running certain courses and dis- Deeds, IV, V. 2297 Deeds — Continued. tances to the point of beginning, held, that no part of the road-bed was included. Id. A subsequent conveyance of a portion of one of lots by a descrip- tion referring to the map, but in which the distances will only carry to the exterior of the alley, will be held, nevertheless, to pass the fee to the center of such alley. Hennessy v. Murdoch, 137 N. Y. 317. The rule is that as between grantor and grantees the conveyance of a lot, bounded upon a street in a city, carries the land to the center of the street. Id. How boundaries to land upon unopened street are to be deter- mined. Barrows v. Wehster, 144 K Y. 422. "Where the lot reserved in a deed is identified by description and is practically located, no one can dispute the title thereto. Second Methodist Episcopal Church v. Humphrey, 142 KY._137. Courses and distances mentioned in conveyances must yield to the line as actually and duly made by survey. Seneca Nation of Indians v. Hugdboom, 132 IST. Y. 492. "Where witnesses testify to the correctness of the terms of the earlier of two treaties, its terms will govern. Id. The presumption is that the line between two terminal points is a straight one. Id. "Where a resurvey conflicts with the terms of a treaty the latter governs. Id. A party is bound by the conditions in a statute under which suit is brought. Id. V. APPURTElSTAlSrCES. Conveyances of land on Long Island Sound shore includes land between high and low water mark. Oakes v. DeLancey, 133 N. Y. 227. A conveyance of land carries with it a water right in a stream within its boundaries. Hall V. Sterling Iron S Baihoay Co., 148 JST. Y. 432. A granting of a right to use water, construed. Id. Conveyances of an easement " for the ingress and egress along the alley line of the premises," construed. Arnold v. lee, 148 E". Y. 214. An intending purchaser of property adjacent to elevated road cannot presume that possession of company remains or con- tinues wrongful. Ward V. Metropolitan El. E. Co., 152 JST. Y. 39. A person purchasing property, being on an elevated road, is put upon his inquiry that the company is in possession of certain easements. . I^- Conveyances of land containing pond supplied from springs on 2298 Deeds, V, VI, VII. Deeds — Continued. grantor's land, with the " appurtenances," conveys right to use of conduits to conduct the water. Spencer v. Kilmer, 151 IST. Y. 390. A conveyance of lands bounded as along a highway, conveys the fee to the center. Habermcm v. Baker, 128 N. Y. 253. Where the grantor owns the whole highway presumption is that he intended to convey the whole. Id. The abandonment of public easement in a highway causes the land to revert to former ownership. Id. That there is no reference to adjacent owner of highway because of abandonment by public. Id. The rule of Lampman v. Milks, 21 IST. Y. 505, that when the owner of land sells a part thereof he impliedly grants to the grantee all those apparent and visible easements which are necessary for the reasonable use of the property granted and which are, at the time of the grant, used by the owner of the entirety for the benefit of the part granted, applied. Paine v. Chandler, 134 JST. Y. 385. Eule that an easement to pass by implication must be necessary to the enjoyment of the estate granted, the necessity required is a reasonable, not an absolute one, applied in case where spring on grantor's property supplied premises conveyed with water. Id. VI. CONDITIONS AND EECITALS. Reservation in a deed " for the purpose of passing and repassing " to the street, construed. Gillespie v. Weinberg, 148 N. Y. 238. "When a restriction as to the uses of lands for liquor purposes cannot be enforced. Woodha/oenh Junction Land Co. v. Solly, 148 N. Y. 42. Eight of grantor to re-enter for breach of condition subsequent is not descendible or advisable. Dpington v. Corrigam,, 151 N. Y. 143. When a condition in a conveyance of land to an ecclesiastic, " his heirs and assigns," may be defeated by grantor. Id. Grantor and his heirs only can take advantage of breach of con- dition subsequent. Id. VII. COVENANTS. A covenant providing that a way be used in common and not to be built upon by either party, runs with the land. Dexter v. Beard, 130 N. Y. 549. Damages which a grantee can recover for breach of a covenant against incumbrances, considered. McGuskin v. Milhwnk, 152 N. Y. 297. The rule that the covenant of a stranger to a title is personal to Deeds, VII — Defenses. 2299 Deeds — Continued. the conveyance, and incapable of transmission by mere convey- ance of land, applied. Mygatt v. <7oe,"l52 N. Y. 457. When a surrender of possession by the wife of property owned by her jointly with her husband will not make his covenants in the deed executed by both as to her title attach to and run with the land. Id. Kestrictive covenants in several deeds in different portions of a block, construed. Equitable Life Assurance Soo. v. Brennam,, 148 N. Y. 661. What legal possession of land is sufHcient to carry covenants. Mygatt v. Coe, 147 N. Y. 456. The fact that the covenant runs to the grantee, " his heirs and as- signs," does not dispense with the necessity of privity of estate in order to carry the covenants with the land. Id. When a husband who merely lives with his wife has no legal pos- session of land which can support his covenants of warranty in a deed made by them both. Id. The husband is entitled to testify as to whether he received any part of the consideration when he sued for breach of covenants as bearing on the question of his possession. Id. Default, Judgment by ; See Judgment. Defenses ; See Separate Titles of Actions. Pleading want of consideration through invalidity of a patent is a proper defense to an action for royalties. Herzog v. Heyman, 151 If. Y. 587. What is not a defense to an action for violation of a municipal ordinance regulating the speed of trains. City of Buffalo v. iV. T., L. E. <& W. E. E. Co., 152 ]Sr. Y. 276. A domestic corporation set up as a defense in abatement in an action for a debt, that the debt had been attached in another state in an action Ijrought against all the parties to recover a debt owing by plaintiffs. It appearing that the only jurisdic- tion of the foreign court rested upon the authority of its statutes to attach the debt, and that it had otherwise acquired no juris- diction of the person or property of defendant, held, the rights of the creditor here could not be defeated by such attachment. Douglass v. Phenix Ins. ^ Co., 138 N. Y. 209. In an action of trespass or trover, an answer or title in a stranger which does not connect defendant with such title is insufficient. Stonebridge v. Perkins, 141 N. Y. 1. Where a former action has been discontinued, the later acjiion may be prosecuted. Grossman v. Unvoersal Euhher Co., 131 N.Y. 636. 2300 Defenses — Descent. Defenses — Continued. Evidence of the termination of the former action must be in the form of some judicial declaration to that effect. Id. Definitions. The word " heirs " in a bequest of a personal property defined. Montignani v. Blade, 145 !N". Y. 11. Delivery ; See Bills cmd Notes ; Ca/rriers ; I^eeds ; Frcmd/tilent Con- veyances ; Sales; Stat/Uite of Franids. Demands ; See Bills and Notes ; Conversion ; Tender ; Vendor and Purchasers. Demurrage ; See Ships and Vessels. When parties understood that but one boat could be loaded at a time, a claim for demurrage for more than one boat cannot be made. Riendeau v. Bullock, 147 N. T. 269. Under peculiar provisions demurrage may include the loading and stowing of the cargo upon- the vessel. Baldwin v. Sullman Timber Co., 142 N. Y. 279. After the demurrage begins to run Sundays are not to be de- ducted in calculating it. Id. Though a consignee may be bound to pay the freight he is not liable for demurrage in the absence of an express agreement to be so. Dayton v. Parke, 142 N. Y. 391. Where the vessel is detained through the fault of the consignee, he may be liable for damages in the nature of demurrage. Id. In such case the detention must be proved, as well as the damages and their nature. Id. It is necessary to show that the bill of lading, by its reference to the charter-party upon the point of demurrage, makes the pro- visions of the charter-party part of the bill of lading in order to prove that the former was included in the latter. Id. If nothing be contained in the bill of lading as to demurrage, no contract is proved from an acceptance of the cargo under a promise to pay freight. Id. Demurrer ; See Pleadings. Depositions ; See Practice. Descent ; See Aliens ; Executors am,d Ad/mvnist/rators. In equity the course of descent of particular lands may be changed by agreement of the tenants in common. Murphy v. Whitney, 140 N. Y. 541. Descent — Disorderly Person. 2301 Descent — Continued. Moneys received by the committee of a lunatic upon release of an easement constitute real property and descend to the heirs. FordY. Zi/vingston, 140 N. Y. 162. The personal representatives have no interest in such fund. Id. Determination of Claim to Real Property ; See Ejectments. An oral agreement to convey made by one who had no color of title is insufficient to pass title. Bohn V. Batch, 133 N. Y. 64. Though plaintiff had entered and built upon such property, he is not entitled to equitable relief. Id. Where the statute requires a certain period of possession, proof of possession by husband and wife will support a claim to such possession by the wife. Diefendorf v. Biefendorf, 132 N. Y. 100. Where plaintiff occupied two floors and leased the remainder of the house, actual possession is made out. Id. Devise ; See Executors and Administrators : Leqacies : Trusts : Wills. Dictum. The decision of one of several questions on appeal does not ren- der the remaining questions decided obiter mctum. Directors ; See Corporations. Disability ; See Statute of Limitations. Discharge; See Bankruptcy ; Judgment; Mortgage. Claims for money received by a bankrupt as agent are barred by discharge in bankruptcy. Mulooh V. Byrnes, 129 N. Y. 23. Discontinuance ; See Practice. Disorderly Person ; See Criminal Law. A husband living apart from his wife in pursuance of a decree of separation obtained by her cannot be convicted as a disorderly person for non-support. People ex rel. Commissioners of Cha/rities v. Cullen, 153 K Y. 629. Section 20 of chapter 601, Laws 1895, authorizing the Court of Appeals to review an order convicting a party as a disorderly person, is not unconstitutional. Id. 2302 DiSOEDEELY PbESON— DiVOECE, I, II. Disorderly Person — Continued. An appeal does not lie from a decision of the Appellate Division in a proceeding against a husband for failure to support his wife. People ex rel. Comrs. of jPuhUc ChariUes <& CorreGtion v. Oullen, 151 N. Y. 54. A husband, adjudged a disorderly person for failure to support his wife, is subject to arrest in a similar proceeding though ap- peal in first is pending. People ex rel. Lichtenstein v. Hodson, 126 N. Y. 647. It seems that it would have been otherwise if he had been im- prisoned for the first conviction or had given the undertaking required for the support of his wife. Id. Where the defendant in such proceedings denies that he is the husband of the complainant, the justice has the jurisdiction to try the question of marriage. Id. Dividends ; 8ee Corporations. Divorce. I. Conflict of Laws. II. Alimony. III. Proof, Practice and Pleading. I. COTSTFLICT OF LAWS. As to the residence of parties married within the state as affect- ing the jurisdiction of the court. Gray v. Gray, 143 N. Y. 354. Effect of judgment of another state. Rigney v. Eigney, 127 N. Y. 408. A judgment for alimony and costs cannot be supported on the ground that they are mere incidents of and subordinate to the right to a divorce. Id. II. ALIMONY. Where the party submits to the jurisdiction of the court he can- not dispute payment of alimony and counsel fees. Gray v. Gray, 143 K Y. 354. Plaintiff may move for alimony not provided for in judgment without opening the judgment of divorce. Galusha v. Gahisha, 138 N. Y. 272. Time of commencing payment of is in discretion of the court. McCarthy v. MoCa/rthy, 143 K Y. 235. When alimony can be otherwise collected the surplus income of a testamentary trust may be enforced in equity for the pay- ment of the alimony. Wetmore v. Weimore, 149 K Y. 520. A testamentary trust is not annulled by a judgment requiring DivoECB, II, III — Do-WEE. 2303 Divorce — Continued. the application of the surplus of said trust to the payment of alimony. Id. "When it is shown that defendant has an income other than the one derived from the testamentary trust it is not necessary that the judgment granting alimony should apportion the in- come. Id. III. PEOOF, PEACTIOE AND PLEADING. It is not incumbent upon the plaintiff, where the defendant denies the charge of adultery, to prove affirmatively the allega- tions in the complaint that the adultery was committed with- out the connivance of the plaintiff. McCarthy Y. McCarthy, 143 N. T. 235. "Where the husband defendant failed to appear as a witness but slight corroboration of the testimony against him was re- quired. Id. "When an allowance to enable the wife to carry on or defend the action under section 1769 of the Code should not be decreed to defray expenses already incurred. McCarthy v. McCarthy, 137 N. Y. 500. The term desertion contemplates a voluntary separation of one party from the other without intention of returning and with- out justification. ' Williams v. WilUams, 130 N. T. 193. "Where the separation is caused by conduct of one of the parties it is not voluntary. Id. Upon the wife's offering to return, the husband was without legal excuse in offering to receive her. Jd. In an action by the wife for separation, a decree of divorce ob- tained in another state by husband cannot be set up in evi- dence. Id. The wife is entitled to compel the husband to comply with the decree of the courts of the state under the Constitution of United States. Id. Domestic Relations ; See Guardian and Wa/rd ; Husband and Wife / Infa/rvts / Parent amd Child. Domicile ; See Conflict of laws. Dower. Dower cannot be claimed in land bought for a third party with the husband's money, and over which he exercises fuU control, unless the husband is seized of the land in law or in fact. Phelps V. Phelps, 143 N. Y. 197. When dower becomes consummate upon the death of a husband who was the beneficiary of the trust. aarh V. Cla/rh, 147 N. Y. 639. 2304 DowEE— Easements. Dower — Continued. Priority of a right of dower of wife of devisee from an annui- tant, considered. _ Id. When property comes to a husband subject to a lien, the wife's inchoate right of dower is also subject to the lien. Id. A devise held one in lieu of dower, and acceptance forfeits the right of dower. Nelson v. Brown, 144 N. Y. 384. Judgment directing a sale subject to dower does not determine right to dower as against a purchaser at the sale, or his grantee, where wife was not made party to foreclosure. Id. Although a wife only has an inchoate right of dower, yet she may maintain an action to cancel a deed which is recorded, on the ground of forgery. Clifford v. Kam/pfe, 147 N. Y. 383. When such action may be maintained, considered. Id. A wife may give power of attorney to her husband authorizing him to execute a release of her right of dower. WronJcow v. Oakley, 133 K Y. 505. The dower right of one divorced in another state determined by the laws of this state. Cleaf v. Burns, 133 IST. Y. 540. To deprive her of dower here the misconduct must be adultery. Drains and Drainage ; See Municipal CorporaUons. Duress ; See Deceit ; Fromd. It ssems that the release of a cause of action for malicious prose- cution was executed after bail had been given and against the advice of counsel, so a finding that the party was not coerced was justified. Stono v. Weiller, 128 E". Y. 655. A contract obtained by duress is not ordinarily void but only voidable, and it may be subsequently ratified and confirmed. Oregon Pacific B. B. Co. v. Forrest, 128 E". Y. 83. One entitled to repudiate a contract on the ground of duress should act promptly. Id. A mere refusal to pay balance due under contract does not con- stitute duress. Doyle V. Bector, etc., of Trinity Church, 133 N. Y. 372. E. Easements; See License ; Pa/rty Walls; Bailroads. It seems that an easement to do some act of a permanent nature on the land of another can be crea.ted only by a deed. White V. Manhattan By. Co., 139 IST. Y. 19. It seems that a license to such effect may be revoked at any time. Id. Easements. 2305 Easements — Oontinued. The question of abandonment of an easement is ordinarily one of intent. Hermessy v. Mwrdooh, 137 N. Y. 317. The mere use of an easement for a purpose not authorized, and the excessive use or misuse of it, are not sufficient to constitute an abandonment. Boby V. N. T. Central, etc., R. R. Co., 142 IST. Y. 176. The acts claimed to constitute an abandonment of an easement must be such as to show an intention to abandon and perma- nently give up the easement. Id. The fact that a railroad has leased lands with the right to use part of them does not show an abandonment. Id. The lessee should be made a party to the action for ejectment by the owner in fee of the land burdened by the easement. Id. It is an error in refusing to find that landing was established by adverse possession when way is claimed as essential to use as a ferry landing. Iselim, v. Sta/rin, 144 N. Y. 453. Conveyances of land containing pond supplied from springs on grantor's land with the " appurtenances " conveys right to use of conduits to conduct the water. Spencer v. Kilmer, 151 I^. Y. 390. A grantor is not liable for destruction of appliances which when the land was granted was owned by a third party but which was subsequently acquired by grantor. Id. Damages for diverting water from defendant's pond, considered. Id. "What constitutes an abandonment of easement. Ward V. Mel^opolita/n El. R. Co., 152 N. Y. 39. Eight of tenant in common to use lands held by him in severalty, discussed. Pdl/mer v. Palmer, 150 N. Y. 139. This right of way lasts so long as the necessity for it remains. Id. "When an easement by necessity is not extinguished. Id. "When by necessity a right of way over grantor's land is created by the conveyance of the lands. Id. !No restrictive easement in favor of one lot of land is to be in- ferred because the adjoining land is subject to the easement. Equitable life Assv/roMce Soc. v. Brerman, 148 N. Y. 661. Case in which it was held that a release of easements did not sever the easements from the land, but reinvested them in the owner of the land. Macy V. Mei/ropolitan El. R.M- Co., affirmed without opin- ion, 128 ]Sr. Y. 624. Eight of grantee of land to use of street bounding his property which has not been accepted by the public, declared. HaAght v. LiUlefield, 147 N. Y. 338. Although the way at the time of the granting was obstructed the grantee of land acquires a right of way as appurtenant to the land conveyed to him. Id, 145 2306 Easements — Ejectment, I. Easements — Continued. An easement " for ingress and egress along the alley line of the premises " is not restricted to any particular mode of travel. Arnold v. Fee, 148 N. Y. 214. Easement in an alley " for the purpose of passing and repassing to the street," considered. Gillespie v. Weinberg, 148 N. Y. 238. When a grantor does not abandon easement by a transfer of the property. Foote V. Metropolitcm El. B. B. Co., 147 N. Y. 367. "Where one of two parcels of land is conveyed absolutely, an ease- ment will be implied in favor of the remaining parcel where it is necessary for the enjoyment of remaining parcel. Wells V. Garbutt, 132 IST. Y. 430. "Where the privilege of overflowing one of two parcels of land was not reserved in a conveyance, it is lost. Id. "When it is claimed that an easement exists by necessity, evidence of the necessity must be given. Id. Keasonable necessity, as distinguished from mere convenience, must be shown. Id. The provisions that an easement must be kept open for passage does not prevent from building over the easement so as to leave a sufficient passage. HolUns v. Demorest, 129 JS". Y. 676. The street rights of abutting owners are not common-law ease- ments, but an easement for lateral support in adjacent land. Stevens v. N. T. Elev. B. B. Co., 130 N. Y. 95. Ejectment ; See DeterminaUon of Clwrni to Beal Projperiy. I. "When Maintainable. II. Pleading and Practice. I. "WHElSr MAINTAINABLE. "When purchaser on foreclosure of the mortgage on leasehold property has no right to possession as against grantee in pos- session under a conveyance from lessor. Shultes V. Sickles, 147 N. Y. 704. "When an action of ejectment will not lie against the husband of wife, a tenant with whom he lives on the land and who claims possession of it. Dcmihee v. Hyatt, 151 N. Y. 493. Possession acquired by ejeiptpient against a life tenant does not affect the rights of the remainderman. Sand V. Church, 152 IST. Y. 174. "What does not constitute adverse possession against the remain- derman rendering his deed void under the Champerty Act. Id. In an action by a remainderman to redeem after a default, a judg- ment in ejectment against the life tenant is equitable in its nature, and may be sustained without any proof of fraud. Id. Ejectment, I, II. 2307 Ejactments — Continued. The six months Statute of Limitations does not apply to an action of redemption brought by the remainderman m a case where the landlord had proceeded only against the life-tenant. Id. Unless he show title in the original patentee, or possession in himself or his grantors, the plaintiff cannot recover lands on a seashore. Greenleafy. Brooklyn, FlatUtsh, etc., R. B. Co., 141 IST. Y. 395. Actual possession suiiicient to raise a presumption of title cannot be shown from the mere payment of taxes, claim of title and assertion of ownership. Id. "Where the complaint alleged ownership of real estate in plaintiff and a forcible entry and detainer by defendant, and demanded treble damages, held, that the action was properly regarded as one of ejectment, and that plaintiff was entitled to a new trial upon compliance with Code Civil Procedure (§ 1525). Compton V. Chelsea, 139 IST. Y. 588. Where, after a grant of land bounded by the side of the highway, to the center of which the grantor owned, the highway was discontinued and the successor of the grantor brought eject- ment for the strip in front of the premises conveyed, held, that although he was entitled to possession it was subject to the right of the grantee to have the part of the former highway in front of his premises kept open. Ilallaway v. Southmcuy, 189 N". Y. 890. The plaintiff must recover upon the superioity of his own title. McBoberts v. Bergmwrm, 132 IST. Y. 83. Possession for more than twenty years under claim of title establishes prima facie title. Id. II. PLEADING AND PKACTICE. A stipulation for trial before a referee is not vacated by an order granting a new trial. Brown v. Boot Mfg. Co., 148 IS. Y. 294. Section 1011 of the Code applies to a new trial in ejectment granted in section 1525. Id. In ejectment the new trial is allowed as a matter of course, under Code Civil Procedure. (§ 1525). It cannot, therefore, be had, where a judgment absolute has been directed by the Court of Appeals upon a stipulation therefor. Boberts v. Batmnga/rten, 126 IS. Y. 836. An extra allowance is an item of costs and may properly be in- cluded in the condition of granting a new trial in ejectment under Code Civ. Procedure, (§ 1525). Wing V. De La Bionda, affirmed without opinion, 126 IST. Y. 580. Proof of some equitable right or title in a third person with whom defendant does not connect himself is no defense. Wing V. Be La Bionda, 131 IST. Y. 422. 2308 Ejectment, II— Election of Remedies, Ejectment — Continued. The submission of the question of the authority of the president of a company to make and execute a deed, and the submission by the court of the question of mistake, does not constitute a mistrial. Forest v. Walters, 153 K T. 229. In an action of ejectment brought by grantee of property at a sheriff's sale, which was vacated, "defendant may show that plaintiff was not a lona fide purchaser by proof that she was the mother of the plaintiff in a former action and that all their property was held in common. Cottle v. Simon, 153 IST. Y. 403. Where defendant has shown that plaintiff and her daughter held their property in common, plaintiff should be permitted to show that the property whicn was the subject of the former action is owned solely by the daughter. Id. When in an action of ejectment, the death of plaintiff's mother who was born 92 years before the trial wiU be presumed. ClasouY. Baldwm,, 152 E". T. 294. A grant by the state evidenced by a patent duly issued cannot be impeached collaterally upon the trial of an action of ejectment. De Lcmoey v. Piepgras, 138 iST. T. 26. In an action of ejectment defendant wiU not be permitted to set up an escheat to the state. Oroner v. Cowdrey, 139 N. T. 471. Election of Remedies ; See Dower / Wills. Neither the pendency nor bringing of an action by a creditor to avoid a general assignment on the ground of fraud will bar his right to come in and share in the distribution of the as- signed estate. Mills v. Parhhv/rst, 126 IST. T. 89. Doctrine of election of remedies, discussed. Id. An assignee cannot impair the interests of his cestuis que trvMent by the prosecution of a remedy of which he had been advised. Bowdish V. Page, 153 JST. Y. 104. A plaintiff is not estopped from setting up and proceeding upon the theory of illegal sale, where he has commenced an action to reach the proceeds of stock, where he has learned after com- mencing the action that the sale was unlawful. Smith V. Samin, 141 IST. Y. 315. "Where a judgment against a partner is returned unsatisfied, an action against others who have misappropriated firm property is not barred. Russell v. MgCoII, 141 ISL Y. 437. Does not exist where the pleadings were subsequently amended so as to exclude the matter which was claimed to constitute the election. Shaw v. Broadbent, 129 N. Y. 114. Party who has been induced by fraudulent representations to seU his goods to another, electing to ratify the sale after full knowl- edge, is bound by such election. Bach V, Tuch, 126 N. Y. 63. Election of Remedies — Election of Oppicers. 2309 Election of Remedies— Continued. The fact of making of similar fraudulent representations to others is merely cumulative evidence on the question of intent. Id. What is an affirmance of sale such as will defeat subsequent ac- tions in avoidance of the sale based on contemporaneous fraudu- lent representations to other creditors. Id. A proceeding in equity in another state by the plaintiff against insolvent corporation which proceeded in affirmance of a sale, is not inconsistent vrith a subsequent action in this state to re- cover upon the notes given for tne purchase-money. Grossman v. Universal BuUber Co., 121 N. Y. 34. It is proper for the plaintiff to show, in order to maintain the ac- tion, that nothing had been or could be realized in the proceed- ings in the other state. Id. Election of Officers ; See Mandamus ; JVaturaUsation ; Office. A candidate intending to proceed by mandamus under section 81 should procure an alternative writ, so that if there should be any dispute about facts that can be settled before the peremp- tory writ issues. People eso rel. Hasbrouck v. Sujpervisors of Dutchess, 135 N. T. 522. The ballot reform law renders invalid a ballot marked for identi- fication, whether by the voter or another person, with his knowledge and assent. Id. It is not needful, in order to invalidate the ballot, to show who the voter was, but it is sufficient to show by any competent evidence that the ballot was marked. Id. Where a mandamus was granted commanding the mayor of Al- bany to publish lists of inspectors and poll-clerks, adopted against the protest of the minority, though selected by repre- sentatives of the two principal parties, the order should be reversed. Matter of Manning, appeal dismissed, 139 N. Y. 446. Chapter 934, Laws 1895, annexing a portion of "Westchester county to the city and county of "Ee^ York, construed. People ex rel. Henderson v. Supervisors of Westchester Co., 147 N". Y. 1. The election of a public officer must be referred to the day upon which the electoral body expresses its choice by voting, and there is no distinction between town and other elections. People ex rel. le Roy v. Foley, 148 'E._ Y. 8Y7. The division of assembly districts under article 3, section 5 of the Constitution is discretionary that the board of supervisors and their division may be based on peculiar facts which may exist. Matter of Smith v. Svpervisors of St. lawrence Co., 148 N. Y. 187. 2310 Election op Officers. Election of Officers — Continued. Article 3, section 5 of the Constitution, for the division by the supervisor of assembly districts, construed. Id. An appeal lies to the Appellate Division of the Supreme Court from an order made under the Election Law reviewing the determination of the filing officer upon a contested certificate of nomination. Matter of Emmett, 150 N. Y. 638. Section 56 of the Election Law, which provides that an order re- viewing the determination of an officer, with whom a contested certificate of nomination has been filed, must be made on or before the last day fixed for filing certificates of nominations to fill vacancies with such officers, applies only to an original order of review provided for therein. Id. A county clerk has no authority to insert in a party column on the official ballot the name of a candidate other than those who have been duly nominated and certified by the party whose name heads the column. Matter of Madden, 148 IST. Y. 136. Section 105 of the Election Law, as amended by chapter 810 of 1895, that " none but ballots provided in accordance with the provisions of this act shall be counted," construed. People ex rel. Hi/rsh v. Wood, 148 K Y. 142. The votes of innocent electors are not invalidated by irregulari- ties on the part of public officers charged with the duty of pre- paring official ballots. Id. An official ballot is not marked within the law because of any irregularity or defect in making it up or printing it. Id. Provisions of law relative to voting must oe substantially com- plied with. Pecmle ex rel. Nicholas v. Board of County Canvassers of Onondaga, 129 K Y. 395. A mandamus wiU issue to prevent canvass of ballots bearing irregular indorsement. Id. An official ballot bearing an indorsement of a district other than that in which it is used is irregular. Id. The provisions prohibiting the canvassing of any mutilated ballot refer to official ballots. Id. The pasting of ballots for a candidate on the official ballot, while it makes vote for such candidate void, does not vitiate the official ballot. People ex rel. Bradley v. Shaw, 133 N. Y. 493. The statute was not intended to prevent a voter from voting for whom he chooses. Id. Where the county clerk refuses to sign report of board of can- vassers, the board may designate one of its members to sign. People ex rel. Daley v. Rice, 129 N. Y. 449. The steps thus taken to authenticate the report of the proceedings are valid. Jd. "When the returns of a canvass are claimed to be illegal, and such Election of Oppicebs. 2311 Election of O&cets— Continued. claim is not denied in the opposing papers, the court may direct the state board to canvass. Id. The duty of the state board is to determine the result of the election. People ex rel. Derby v. Bice, 129 JST. Y. 461. The statements returned to the state board must contain only "what is required. let. The return oi any other matter will be disregarded. Id. Ma/ndamus will lie to compel the county board of canvassers to send back returns for correction. People ex rel. Munro v. Board of Ccmvassers of Onondaqa, 129 K T. 469. The court may consider the ineligibility of a party, and refuse relief where such ineligibility is established. People ex rel. Sherwood v. State Board of Canvassers, 129 N. T. 360. Such determination is not conclusive upon the state senate in considering the eligibility of a member. Id. State board of canvassers has no power to go outside returns of county canvassers. Id. Court will not aid one who is ineligible to office. Id. The court cannot compel the secretary of state to return a resolu- tion of county board of canvassers. People ex rel. Sherwood v. Bice, 129 N. T. 391, The state committee and the state convention have the right to settle dispute as to which two sets of delegates of an assembly convention were regular. Matter of Fairchild, 151 N. Y. 359. There is no power in a congressional district convention called solely to elect delegates to a national convention to appoint new congressional committee. Id. The court should rely upon the action and decision of the regu- larly constituted party authorities in deciding question of regularity of nominations and delegates. Id. Where a review of determination of a filing officer on a contested certificate of nomination must be had. Id. Upon what papers review is determined. Id. Application of the provisions of the Election Law authorizing the filing officer to select a device and party name for factional candidates not recognized by constituted party authorities,, considered. People ex rel. Wa/rd v. Boosevelt, 151 IS". Y. 369. Duty of village clerk to administer oaths is ministerial, and can be required by mandamus. People ex rel. Young v. Straight, 128 1^. Y. 545. Omission of name from the official ballot, a voter is warranted in writing or pasting upon such ballot the name of such office and of the person for whom he desires to vote. People ex rel. Goring v. Prest, etc., of Wappingers Falls, 144 K Y. 616. 2312 Election of Officers — Emblements. Election of Officers — Continued. Mandamus will lie to compel the recognition of a person receiving a majority of votes for the office in such a case. la. Intent to make a change of residence for the purpose of voting must be shown by proof of acts. Matter of Ga/rvey, 147 K Y. 117. "What is sufficient to show a change of residence. Id. A judge at chambers in proper case may strike a name from a registry list. ' Id. It is the duty of a board of county canvassers to determine, from the documentary evidence before them, the number of votes given to each candidate respectively. People ex rel. Noyes v. Canvassers of Cherrming, 126 IS. T. 392. Canvassers must be governed by writing inserted in body of paper as to number of votes cast for candidates. Id. "What the certificate under the former election law should have contained. Id. 'Eo residence is acquired by a person committed to prison at his own request, and who is allowed to go in and out of prison. People V. Cadj/, 143 N. T. 100. The registry of such a person is illegal and punishable upon con- viction. Id. In the designation of newspapers to publish the list of nomina- tions, the police commissioners act judicially, and their deter- mination according to their best information is not reviewable in the courts. People ex rel. Press Pub. Company v. Martin, 142 N. T. 228. An affidavit that a newspaper has the largest circulation in the United States does not establish the fact of its circulation in the city of New York. Id. A person who induces another to conceal the list of registered voters and refuses to permit the public to gain access thereto is guilty of violating the law. People V. MoKam^e, 143 IST. Y. 455. It is not necessary to show conspiracy in an indictment for such an offense, because if shown it is evidence from which the jury may find the main fact. Id. Electrical Companies ; See ManufaoUi/ring Corporations. Elevated Railroads ; See Railroads. Embezzlement ; See Criminal Law. Emblements ; See Landlord and Tenant ; Executors and Adrwinis- trators. Eminent Domain, I. 2313 Eminent Domain ; See Oom^ensation / High/wa/ys y Madl/roads. I. The Powee. II. The Taking. III. Peoceedings and Peactioe. IV. Compensation. I. THE POWER When a statute authorizes the condemnation of land for public use, the legislature cannot subsequently repeal the conditions on which the land was taken, and prevent the construction of a railroad through a street laid out upon the terms that none should be permitted to run through it. Matter of Southern Bouleva/rA It. B. Co., appeal dismissed, 128 K T. 93. Where additional land for its use is needed, a foreign railway corporation operating under the laws of this state may acquire the same by condemnation proceedings. a. Y., New Hmen, etc., E. B. Co. v. Welsh, 143 IST. Y. 411. Lands used as a private cemetery may be condemned for public use unless protected by statute. Matter of Bd. of Street Opening, etc., of New Yorh, 133 ]Sr. T. 329. But otherwise in case of a public cemetery. Id. Where no burials can be made except by consent of church cor- poration the land is devoted to a private use. Id. Legislature has power to takeproperty for public use. Pocantrro Water WorJes v. Bird, 130 E". Y. 249. This use may be limited to the inhabitants of a small locality, but it must be in common. Id. The question of public use is a judicial one. Id. An agreement by a third party does not destroy the public use requisite to comdemnation proceedings. Id. The New York & Long Island Company under its charter as amended is an existing corporation with power to take lands for its purposes, which includes running eastwardly to Third Ave. New York & Long Islamd Bridge Co. v. Smith, 148 E". Y. 540. Property required for canal purposes may be taken without the aid of any judicial proceeding, and Constitution, article 1, sec- tion Y, does not apply. Waterloo Woolen Mfg. Co. v. Shanahan, 128 E". Y. 435. The rights of the state cannot be impaired by user by a party. Id. When water is being taken for public use, plaintiff should estab- lish his rights in the Court of Claims and should not stop the work of public improvement. Id. 2314 Eminent Domain, II, III. Eminent Domain — Continued. II. THE TAKING. Case in which it was held, that the use for which the lands were sought was not a public one, and that the refusal to grant the petition was proper. Matter of Split Rock Cable Road Co., 128 IST. T. 408. Held, also that failure to file a map was of itself a serious objec- tion to the application. Id. A possible limited use by a few persons is not sufficient to author- ize the taking of private property against the will of owner. Id. Tested rights cannot be divested by subsequent enactment. Rwnsey v.iT. Y. & New England R.R. Co., 130 K T. 88. A conveyance under chapter 659, Laws 1871, made thereafter and before an award, transfers the right to the award to grantee who owns when city actually takes possession. Magee v. City of BrooMyn, 144 K T. 265. III. PEOCEEDIlSrGS AISTD PRACTICE. Where husband and wife are seized of an estate as tenants by an entirety, and when in a proceeding to condemn a right of way the husband alone is served, the wife may restrain the construc- tion of a sewer across the property. Grosser v. City of Rochester, 148 N. Y. 235. Section 3372 of the Code giving an allowance in condemnation proceedings does not apply to proceedings taken under a special act, but costs in such a proceeding are governed by section 3340. Mattev of City of BrooMyn, 148 N. Y. 107. "Where specific performance would be unavailing, the party entitled to it should be allowed to establish a claim for damages sus- tained. People ex rel. Echerson v. Trustees of JIaversiraw, 151 N. Y. 76. Where the General Term reverses an order refusing to affirm an award, and affirms such award, it is error to include therein in- terest from the date of the Special Term order. Matter of N. Y. & BrooUyn Bridge, 137 JST. Y. 95. An appellate court will not set aside an award of commissioners to acquire lands for public purposes or reverse the decision of the Special Term confirming their report, unless it is made to appear that they adopted some wrong principle in arriving at the value of the land. Matter of City of Rochester, affirmed, 137 IST. Y. 243. The violation of a private contract by a railroad company is no valid objection to condemnation proceedings instituted by it. Matter of Long Island R. R. Co., 143 K Y. 67. The courts cannot validate a wrongful entry. Matter of /St. Zaiorence <& Adi/rondach R. R. Co., 133 N. Y. 270. Eminent Domain, III, IV — Equity, I. 2315 Eminent Domain — Continued. Whether the legislature can authorize a trespasser to continue in possession pending condemnation proceedings, — quaere. Id. "Wnere condemnation proceedings are successfully resisted, the remedy for injury is by action. Id. IV. COMPENSATION. On appeal, an award of damages to property by the diversion of "water required to supply a city, the Court of Appeals cannot assume that the commission failed to take into consideration a particular item of damages as to which conflicting evidence was taken. Matter of ThoTwpson, 127 N. Y. 463. Party who holds the title when an actual appropriation of the land is made is entitled to the award under chapter 559 of 1871. Dela^ Y. City of Brooklyn, 14A N. Y. 265. In fixing the value of property occupied by tenants in proceedings under the condemnation act, the appraisers may appraise the entire value of the premises and then apportion such value among the fee owners and tenants, or they may appraise the value of each separate interest. Matter of N. T. & BrooTclyn Bridge, 137 N. Y. 95. Employer and Employe; See Master and Servant; Negligence; Railroads. Entirety, Tenancy by ; See HusboMd and Wife. Equitable Conversion ; See Devise. Eqtiity ; See Agency / CoMcellation ; Cloud on Title / Contracts / Corporations ; Creditor's Suit; False Representations; Fore- closure: Fraud; Fraudulent Comveyances ; Iijunction ; Mis- take; Pa/rtner-ship ; Purchaser for Value; Becevuers ; Refor- matton of Instrwments ; Specific Performance ; Trusts ; Wills. I. JUEISDICTION. II. Pleading ajstd Peactiob. I. JUEISDIOTIOK A court of equity will not determine the restrictive right and in- terest of persons arising out of an unlawful agreement. Unckles v. Colgate, 148 N. Y. 529. Where real property becomes vested in the last survivor under an agreement that it should vest in another upon death of the sur- vivor, the former has an interest which equitv will protect. Murphy v. Wh.itney, 140 IST.Y. 541. When jurisdiction of a court of equity has once attached it is not 2316 Equity, I, II— Escheat. Equity — Continued. afifected by subsequent changes so long as any cause of action survives. Va/n Allen v. Ifew York El. B. B. Co., 144 ]S". Y. 174. Case wken court will await money judgment when it cannot direct reconveyance of property obtained by fraud. Valentine v. Richardt, 126 K Y. 272. Equity will intervene where there is no adequate remedy at law. JSfat. Pari- Banic v. Goddard, 131 IS. Y. 494. Equity of redemption is now a legal estate. Macauley v. Smith, 132 K Y. 524. Once a mortgage always a mortgage. BL Stare decisis does not apply where me law has been misunderstood or misapplied. Bumsey v. W. T. d New England B. B. Co., 133 N. Y. 79. Where a statute authorizes relief at law which was ordinarily awarded in equity, such statute does not bar equitable relief. Kinnan v. Eorty-Second Street, etc., By. Co., 140 N. Y. 183. A remedy which decrees the giving of an indeninity bond and the issue of a new certificate of stock is wholly and clearly an equi- table remedy. Id. II. PLEADING AND PEACTICE. A judgment obtained by a fraud should not be opened without reserving the right to contest the original claim. Eley V. Healey, 149 N. Y. 336. What facts must be alleged to allow Supreme Court to take juris- diction of all, account for an acountmg, and after having ob- tained jurisdiction what disposition such court will make. Sanders v. Sautter, 126 IST. Y. 193. Proper actions in equity considered. Id. In an equity action, the court having obtained jurisdiction of the parties and subject of the action, will bring its relief down to the trial. Kilhourne v. Supervisors of Sullivam, 137 N. Y. 170. When the doctrine of acquiescence as a defense to an equity suit generally obtains. Oalway v. Metropolitam, Elevated By. Co., 128 N. Y. 132. The rule requiring promptness in asking the aid of a court of equity is always applied in the discretion of the court. Id. Error, What Assignable as ; See Appeal ; Criminod Zoajo ; Judg- ment; JVew Trial; Practice; Beference. Error, Writ of ; See Appeal ; Criminal Lam. Escape ', See Arrest ; Sheriff. Escheat. Where a woman to whom the state had released its right to her Escheat— Estoppel, I. 2317 Escheat — Continued. deceased husband's land died without leaving heirs, what- ever interest she had therein at once escheated to the state. Croner v. Cowdreij, 139 N". Y. 471. It seems that an escheat of lands to the state can only be en- forced by its authority. Id. Estoppel ; See Agency ; Former Ad^udAcabion / Judgment y Part- nershij). I. By Deed. II. By Eecoed. III. By Office oe Position. IV. By Acts and Repeesentations. I. BY DEED. A person who obtained land with right of way is not estopped from insisting upon such easement, although at the time of the granting the way was partially obstructed. Haight v. Uttlefield, 147 E". Y. 338. The rule that estoppel differs from evidence, applied, in case of a deed. Mut. lAfe Ins. Co. v. Corey, 135 N. Y. 326. Where under the law there is an entire lack of power to do the act in question, it cannot be made good by estoppel. Id. Where an estoppel relates to an interest in land, it passes with the land, and an estoppel by deed creates what in law is termed a title by estoppel. Id. A warehouse company's liability for certificates issued by the president in his own name depends solely upon the authority of the president to issue such certificate. Cor7k Exchcmge Bh. v. Americom Dock & Trust Co., 149 ISr. Y. 174. Where directors of the company have acquiesced in the issuance by the president of receipts in his own favor, they are estopped from denying the validity of such certificates in the hands of innocent purchaser. Hanover Nat. BTc. v. Americom. Dock & Trust Co., 148 N. Y. 612. The validity of a mortgage may be contested by remaindermen who took no part in the contest, and did not consent to the exe- cution of the mortgage by a temporary administrator. Duryea v. Maokey, 151 N. Y. 204. Although officers of a corporation entrust certificates to a servant before thev are canceled, they are not estopped from challeng- ing the validity of these certificates which were surrendered that others might be issued in their place. Knox v. Eden Musee Americom, Co., 148 IST. Y. 441. 2318 Estoppel, I, II, Estoppel — Continued. Equity will not make an estoppel work any further than is rea- sonably and fairly within the intendment of the .parties. Oeiler v. Littlefield, 148 N". Y. 603. In an action by a judgment creditor to set a conveyance as to two pieces of property aside as fraudulent, a waiver as to one parcel will not, where the circumstances render an extension thereof inequitable, operate to prevent the maintenance of the action in relation to the other parcel. Id. The Statute of Frauds is not an obstacle to the exercise by a court of equity of its jurisdiction to give effect to an equitable estoppel. Thompson v. Sinvpson, 128 IST. Y. 270. When a party is concluded from denying his own acts or admis- sions which are expressly intended to influence the conduct of others. Id. An estoppel may arise although there was no designed fraud. Id. An estoppel may arise from silence. Id. The owner of property which another person has assumed to con- vey is not precluded by mere silence from subsequently claiming it. Id. "Where the owner in such cases, knowing the facts, assents and ac- cepts the proceeds of sale, he is estopped from asserting the legal title of the purchaser. Id. The doctrine of equitable estoppel should be cautiously applied. Id. II. BY EECOED. The record of an action is not binding upon one not a party thereto. Quiniby v. Cha/rha/rt, 133 E". Y. 579. A person is estopped by his testimony given in a former action. Anthony v. Wise, 130 IST. Y. 662. "When a judgment in favor of the landlord in summary proceed- ings for non-payment of rent is a bar to an action to cancel lease by tenant. Goehrcm v. Reich, 151 E". Y. 122. Constructive notice from the record of a deed of the rights of the parties is not sufficient to impose an active duty. Jenks V. Quvnn, 137 N. Y. 223. A judgment of a court of another state is not conclusive as to the ownership of a note not attached, but held by defendant in this state. Waurd v. Boyce, 152 IST. Y. 191. A person who has obtained the removal of structures from bulk- heads occupied by him, by mcundamus proceedings, is not pre- vented from recovering wharfage in addition. Momd/reau v. Msworth, 151 N. Y. 473. The fact that a husband was a witness for his wife in an un- successful action brought by her to recover board, does not estop him from subsequently asserting an independent right to recover the same demand. Stamp v. FranMin, 144 E. Y. 607. Estoppel, II, III, IV. 2319 Estoppel — Continued. Where defendant relies upon his possession as sufficient evidence of ownership of the land, an admission by his grantor that the title thereof is in plaintiffs does not bind defendants. Greenleafy. Brookk/n, Flathush, etc., R. B. Co., 141 N Y. 396. The question of former adjudication, estoppel or bar is to be determined not only by the Judgment alone, but also by the judgment roll. Converse v. Sickles, 146 N. Y. 200. A purchaser of a portion of real property under a sheriff's deed is not estopped by the conduct of the owner thereof in permit- ting his co-owner to execute a mortgage over the entire prop- erty, where he had no notice of the execution of such mort- gage and was not made a party in foreclosure of it. Lion V. Morgcm, 143 IST. Y. 605. III. BY OFFICE OR POSITION. Doctrine of estoppel applied where defendant, an administrator, had been induced to compromise with a debtor of the estate by the representations of the plaintiff that he had no claim against the estate but only against such debtor, and had distributed the moneys so received. Stillings v. Haggerty, affirmed without opinion, 126 N". Y. 638. Guardian signing, as such, a receipt for a sum paid him as com- pensation for lands of the ward taken by a city, is not estopped as against such ward from claiming an interest in the fund as tenant by the curtesy. Matter of Camp, 126 N. Y. 377. lY. BY ACTS AND REPRESENTATIONS. A party may be estopped by his conduct. Bishop V. Agricultwral Ins. Co., 130 N. Y. 488. The acts of an agent may estop his principal. Id. Although an assignee completes a contract at the request of the creditor, which was partly finished before the assignment, there is not sufficient to estop the creditor from maintaining the ac- tion to set the assignment aside as fraudulent. Groves v. Bice, 148 N. Y. 227. A creditor, however, will be estopped where he procures the com- pletion of the work in order that he may obtain the preference over other creditors. Id. A company is estopped from denying its liability to indemnify a broker who made inquiries of the corporation, who informed him that the certificate was ready for transfer, which later proved fictitious. Jarvis v. Manhattan Beach Co., 148 N. Y. 652. A policy-holder, stating upon information the cost of the fire, is not estopped from later showing the facts of the difference. White V. Boyal Ins. Co., 149 N. Y. 485. 2320 Estoppel, IV — Evidence. Estoppel — Continued. One who has testified to a state of facts in favor of the successful party to a former action is not necessarily estopped thereby from asserting the contrary in an action in his own behalf against such party. Knock v. Von Bernuth, 145 N. T. 643. Eule that to constitute an equitable estoppel there must have been some act or admission by the party sought to be estopped, inconsistent with his subsequent claim, and done or made with the intention of influencing the conduct of another, which he had reason to believe would, and which did, in fact, have that effect, and that silence will not estop unless there is a duty to speak, applied. Knox V. Metropolitan Elevated S. S. Co., affirmed with- out opinion, 128 N. Y. 625. A consignor interested with the consignee in goods shipped is not estopped from asserting his interest by tne fact that he caused the bills of lading and invoices to be made to the order of the lienor. Brexel v. Pease, 133 JS". T. 129. Mere silence may sometimes found an estoppel. Collier v. Miller, 137 IST. Y. 332. "When the holder of one of two mortgages, executed concurrently by the same mortgagor upon the same property, is not estopped from claiming a priority under a parol agreement. Id. Eviction ; 8ee Landlord and Tenant. Evidence ; See Criminal Lam ; Practice ; Witness ; and for evi- dence im, particular cases, see titles of actions. I. Genebally, Competency and Kelevancy. II. Judicial ISTotioe. III. Records, Judgment, Documents and "Wkitten Instru- ments. lY. Presumption. Y. Burden of Proof. YI. Best and Secondary. YII. Order and Weight. YIII. Parol to Yary a "Writing. IX. Opinions. X. Expert Testimony. XI. Hearsay. XII. EeS GESTiB. XIII. Admissions and Declarations. XIY. Handwriting. XY. Circumstantial. XYI. Practice. Evidence, I, 2321 Evidence — Continued. I. GENEEALLY, COMPETENCY AND EELEYANCY. Question on cross-examination, " "Wlien you wrote that letter did you intend they should understand that you were financially responsible?" was proper even if incompetent as aflfirmative matter, in action to recover goods brought by defendant's as- signor. Dobson V. Warner, aifirmed without opinion, 128 N. Y. 649. Evidence of collusion is admissible in an action to foreclose a corporate mortage brought on request of a competing company. Farmers^ Loan c& Trust Co. v. JV. Y. (& Northern R. Co., 150 K Y. 410. When it is incompetent to explain the words " mineral and ores." Armstrong v. Lake Cham/plain Oranite Co., 147 N. Y. 495. When evidence may be introduced that use of the word " miner- als " overrides the legal meaning of the word. Id. Evidence in answer to the question " How much did you earn a week from" the defendants who employed the plaintiff injured in their service is competent on the question of damages in a suit against them for negligence. Pahner v. Conant, affirmed without opinion, 128 N. Y. 577. A certificate of death constituting part of the records of the board of health of a city is not competent evidence of the cause of death as between private parties. Buffalo Loan & Trust, etc., Co., v. Knights Templar & Masonic Mut. Aid Asso., 126 JST. Y. 450. Evidence that the railroad company permitted brush to be cut along its line and left to dry, is competent on the question of its negligence in causing a fire. JSillings v. Fitckburgh R. R. Co., affirmed without opinion, 128 JSr. Y. 644. It is not proper for an owner of real estate who does not collect the rents to testify as to the rents received. Domschke v. Metropolitan LI. R. Co., 148 IST. Y. 337. When mere production of a bond in suit by the defendant justifies a finding of non-payment. Andersons. Culver, 127 N. Y. 377. Books of account may be introduced in evidence by judgment creditor to support an attack in equity upon a transfer of prop- erty by a judgment debtor by a third person claiming a valid debt as the consideration of the transfer. White V. Benjamin, 150 N. Y. 258. For what purpose a memorandum made by a witness cannot be admitted. People v. McLaughlwi, 150 N. Y. 365. It is proper for the agent of an insurer to explain what he in- tended by ambiguous words. Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307. A non-expert witness in stating facts as to the actions of a party 146 2322 Evidence, I. Evidence — Continued. may testify whether such acts seem to him rational or other- wise. People V. Strait, 148 N. Y. 666. Statement by an attending physician as to diseases for which he treated an insured is admissible under section 834 of the Code. Redmond v. Industrial Benefit Ass'n, 150 N. T. 167. A party calling one of the two physicians who attended him waives privilege by section 834 of the Code to object to the testimony of the other as to the transaction where both attended. Morris v. If. T. 0. di W. R. R. Co., 148 N. Y. 88. A tenancy by the curtesy initiate in lands which the wife has the legal right to sell does not make the husband a person inter- ested so as to render him incompetent under section 829 of the Code as a witness after the death of the wife in a suit to fore- close a mortgage even if he joined in the mortgage. Albany County Savings BTc. v. McCarty, 149 N. Y. 71. Evidence of a waiver of performance is admissible in an action upon a contract. Thomson v. Poor, 147 N. Y. 402. A husband may testify as to whether he received any part of the consideration in an action for breach of covenants in a deed of a wife's property in which he joined. Mygatt v. Coe, 147 N. Y. 466. TJpon the hearing of a claim against the state based upon the negligent construction of a bridge, it is error to permit a wit- ness to state that in his judgment the bridge was safe. McDonald v. State, 127 N. Y. 18. It is also error to permit an expert to state, on his judgment, a load of the size mentioned is an excessive load. Id. The books of account of a corporation are not competent evidence of themselves to establish an account or claim against a trustee. Rudd V. Robinson, 126 N. Y. 113. In an action for conversion defendent maintained that it was the agreement that he should retain the title till the lumber had been used to make boats for defendant, and plaintiffs, having proved a bill of the lumber sent by defendant, the latter offered to show by its agent who sent the bill that it Avas merely a memorandum of value, which offer was rejected, held, error. Crosby v. Delaware <& Hudson Canal Co., 128 N. Y. 641. A witness is not competent to testify as to the reputation of an- other until he was shown to have such knowledge. Carlson, v. Winterson, 147 N. Y. 652. "When it is not error to allow non-expert Avitness to state that de- fendant was rational. People v. Tou?igs, 161 N. Y. 210. "What may be proved as justification in an action for slander. Lampher v. ClarTi, 149 E". Y. 472. A waiver in an application for insurance of the provision of sec- tion 834 of the Code is not against public policy. Foley Y.. Royal Arcanum, 161 N. Y. 196. Evidence, I. 2323 Evidence — Continued. Elements of damages for diverting water from defendant's pond, considered. Spencer v. Kilmer, 151 N. Y. 390. "What is competent on the question of treble damages in an action of trespass. Humes v. Proctor, 151 J^J. Y. 520. It is proper to prove tonnage of the hull of a vessel in an action to collect wharfage for an oyster barge. Flandreau v. Mlsworth, 151 N. Y. 4T3. A note of a decedent is not " testimony of a deceased person " within the meaning of section 829 of the Code, so as to permit testimony of the holder as to the consideration for such note. Matter of Callister, 153 N. Y. 294. What does not authorize a defendant to testify that a note was a gift made by the decedent. Rogers v. Rogers, 153 IS.. Y. 343. "What will not authorize a defendant to testify in his own behalf as to his own transactions with the deceased. Id. A surveyor who has indicated on a map the line surveyed by him, may also testify that the work was right. La Rue v. Smitli, 153 N. Y. 428. Evidence of knowledge of insolvency by the officers of the bank at the time of the deposit of check and of similar knowledge on the part of officers of the transferee is competent. Grant v. Walsh, 145 N. Y. 402. Communications made to a friend, or to an attorney in the presence of a friend, are not privileged under section 835 of the Code. People V. Buchanan, 145 IST. Y. 1. Though plaintiff presents but one of two charges to the jury the defendant may give evidence in justification of the other in mitigation of damages. Holmes v. Jones, 147 N. Y. 59. Evidence admissible in an action for the price of the goods act- ually delivered to show a waiver of full performance in accord- ance with the terms of the contract. Brady v. Cassidy, 145 E". Y. 171. "When a person who has conducted first-class boarding-houses in the same city is competent to testify to value of services as housekeeper. Edgecomb v. Buckhout, 146 N. Y. 332. "Where such services included sewing and mending, evidence of the value of such work is admissible. Id. In an action of partition by heirs it is competent to show by parol evidence that a deed to one of them was an advancement. Palmer v. Cullertson, 143 JST. Y. 213. Competent drawings of the scene of the homicide are admissible. Peoi^le V. Johnson, 140 N. Y. 350. In an action for separation where husband sets up counter-claim for divorce, competent evidence of charge against him is ad- missible. Woodricli v. Woodrick, 141 IST. Y. 457. Evidence tending to show testator's knowledge of the instrument executed is admissible. Matter of Nelson, 141 N. Y. 152. 2324 Evidence, I. Evidence — Continued. In an action on a contract that a press sold will take care of the pulp from four grinders of a specified make, where such grinders are not of uniform capacity, it is competent for the seller to show, the represented capacity of the grinders to be used. Bagley Sewall Co. v. Sa/rcmac River Pulp and Paper Co., 135 JSr. Y. 626. Evidence, held, competent on trial for arson as tending to prove that the fire was not accidental ; that its origin was instigated by malice and not from the desire of gain. People V. Murphey, 135 N. Y. 450 Upon the trial of an indictment for murder where self-defense was the plea, the reception of a photograph of the deceased to show his physical characteristic, is not error. People V. Webster, 139 K Y. 73. Evidence to show bias in favor of the accused on the part of one of his principal witnesses, and to contradict her testimony on cross-examination as to statements previously made by her concerning" her acts and habits, is properly admitted on ques- tion of credibility. Id. The exclusion of evidence to show that the experiment was fraud- ulently conducted, was erroneously excluded though that fact was not alleged in the answer, since the test so conducted was part of the original fraud set up as defense of note. Pelly V. I^aylor, 139 N. Y. 598. "Where defendant, seeking to avoid an instrument, signed by him for fraud, has testified that he could not read, it is error to exclude further testimony by other witnesses to show his inability. Page v. Krehey, 137 N. Y. 307. In an action to enforce as a mortgage a deed absolute in form executed by husband and wife, it is competent for defendants to show that plaintiff had previously conveyed the same lands to the husband and also the wife. House V. Lockwood, 137 JST. Y. 259. In an action for conversion, evidence on the part of the defend- ants that the property in question was brought in by judgment creditors at an execution sale, and the prices which they were able to realize thereon upon a sale shortly thereafter in an ad- joining city, is competent on the question of value. Parmenter v. Fitzpat/rich, 135 IST. Y. 190. The rule admitting proof of the price which an article brings at a lona fide sale as some evidence of its value is not confined to sales at auction. /^. Where the continuation of a contract is in dispute, a letter of one of the parties to that effect may be admitted. Dexter v. Mns, 133 K Y. 551. In an action to charge carriers as insurers, because of a deviation Evidence, 1, 11. 2325 Evidence — Continued. from the route stipulated in the bill of lading, evidence of a usage to carry part of the way by railroad was competent. Robertson v. Wat. Steamship Co., 139 IST. Y. 416. It is incumbent on the shipper to show his ignorance of the usage, and that knowledge imputed to his agent in transacting the business bound him. Id. "Where each party set up a different agreement, it is competent to prove the value of services. Barney v. Fuller, 133 N. Y. 606. Questions put to witness to test his memory are relevant. People V. Tice, 131 N. Y. 651. Questions tending to show motive are" relevant. Id, The existence in a locality of a certain usage may be proven. Hammann v. Jordan, 129 N. Y. 61. Evidence tending to prove duty of a railway to others than its passengers in a collision is improper. Schneider v. Second Ave. R. R. Co., 133 JST. Y. 583. Evidence as to the reasonableness of a city ordinance may be given. Mayor, etc., of New York v. Dry Doch, East Broadway, etc., it. R. Co., 133 ]S'. Y. 104. Proof of custom cannot be shown where specific orders for sale of stocks were given. De Cordova v. Barnv/m, 130 N. Y. 616. Evidence showing an existing custom may be admitted. Ja/rvis v. Brooklyn Elev. R. R. Co., 133 N. Y. 623. Questions tending to show good faith are proper. Hammiam,n v. Jordam,, 129 N. Y. 61. Where there was an issue as to the date of a written receipt, it was competent for an expert in handwriting, after comparing the receipt with other writings, to state whether in his opinion the word in question was Januarv or July. DresUr v. Ila/rd, 127 N. Y. 235. In an action on a contract of employment, question whether defendants were dissatisfied with his statement to them was properly excluded. Metz V. iMchemeyer, affirmed, it seems, without opinion in 128 ]Sr. Y. 682. Evidence of an allegation not proven is incompetent. Weed V. Samburg-Brenam, Fire Ins. Co., 133 N. Y. 394. II. JUDICIAL NOTICE. The nature and operation of the elevated railroads are so notori- ous that the courts mav assume to be acquainted with them. Bookmam. v. W. Y. Elevated R. R. Co., 137 JST. Y. 302. Courts may take judicial notice of the kind of locomotives in general use upon railroads. Frace v. N. Y, Lake Erie, etc., R. R. Co., 143 N. Y. 182. 2326 Evidence, II, III. Evidence — Continued. How the civil service regulations of the city may be proven. People ex rel. Sea/rs v. Toby, 153 N. Y. 281. Judicial notice may be taken of the population of a city of the state. Metz V. City of Brooklyn, affirmed, it seems, without opinion in 128 N. Y. 61Y. Court will take judicial notice that a town named is in a particular county. People v. Wood, 131 ]N. Y. 617. Judicial notice will be taken of the population of political divisions within their jurisdiction. People v. McKane, 143 N. Y. 455. The court will take judicial notice of the provisions of chapter 769, Laws 1886, exempting the personal propertj' of insurance companies from taxation. People ex rel. Commercial Mutual Ins. Co. v. Tax Commis- sioners, 144 N. Y. 483. The rule that parol evidence may be given as to the uniform, continuous and well-settled usage, and customs pertaining to the matters embraced in the contract, applied. AtUnson v. Truesdell, 127 N. Y. 230. III. EECOEDS, JUDGMENTS, DOCUMENTS AND WEIT- TEN INSTRUMENTS; See Foreign Judgments; Foreign Laws ; Former Adjudication. In ejectment in which plaintiff claims to be the son of defendant's ancestor and seeks to prove a marriage between his mother and such ancestor prior to his birth, a judgment for damages recovered by the father of plaintiff's mother against the deceased is not admissible in evidence on the part of the defendants. Eisenlord v. Clwm, 126 N. Y. 552. Although an admission contained in the first suit may be proved in behalf of the person bringing a subsequent action, that fact will not render the judgment in the first action admissible. Id. The affixing of an internal revenue stamp is not essential to the validity of an assignment of an interest in real estate, when offered in evidence in the courts of this state. Matter of Yalentine, affirmed without opinion, 128 N. Y. 611. Judgment recovered in a suit to restrain an elevated road from maintaining its operations except upon payment of specified damages is not admissible as to the value in condemnation proceedings subsequently taken. Matter of Metropolitan Elevated R. R. Co., 128 N. Y. 600. A judgment is admissible to prove so much as was decided by the issues. Carleton v. Lombard, Ayres c& Co., 149 N. Y. 137. Evidence of a judgment may be received on a new trial where it is the foundation upon which a stipulation of the parties rests and tends to exjalain its purpose. Hime V. ]yew York El. R. R. Co., 149 N. Y. 154. Evidence, III. 2327 Evidence — Continued. A surrogate's decree refusing the probate of a will is not res adjudioata between the parties in a subsequent action. Corley v. McJElmed, 149 JST. T. 228. It may be shown by the journals of the two houses that a bill was passed by a two-third vote. .N'ew York & Long Island Bridge Co. v. Smith, 148 E". Y. 640. Proof of the destruction of original draft of a public document, with proof of publication and of filing a copy duly signed, is sufficient to establish the existence of such document. Board of Health of Yonkers v. Copcvtt, 140 N. Y. 12. Proof of a bond given by a grantee to the mortgagee, con- ditioned for the payment of any mortgage deed remaining after the remedy agamst the land is exhaustible, is admissible. Wagner v. ZinA; 150 N. Y. 549. An architect's certificate, although made after the commencement of an action, does not affect its admissibility in evidence. Gillies V. Manhattan Beach Improvement Co., 147 N. Y. 420. A continuance of a preceding title may be shown by a renewal lease. Witmarlt v. New York El. 'B. B. Co., 149 JST. Y. 393. A former judgment establishing rights and relations between the parties thereto is admissible against a person not a party or privy for the purpose of proving that the plaintiff in the former action sustained to the defendant the relation established by such judgment. Bailroad Equipment Co. v. Blair, 145 IN". Y. 607. The record of a deed is not conclusire evidence of its delivery by the grantor to the grantee. Townsend v. BooMam, 143 E". Y. 516. "Whether a statute of another state has altered the common law must be proved and not assumed. Vanderpoel v. Gorman, 140 N. Y. 563. In order to bar the admission of books of account upon trial of an indictment, objection should be made on ground that a person shall not be compelled to be a witness against himself. People V. Speigel, 143 N. Y. 107. Where the books actually used are shown, evidence of what is generally used is incompetent. Gillet v. Whiting, 141 N. Y. 71. In an action to establish a copartnership between plaintiff and defendant, and for an accounting by the latter, a statement from the books, furnished by the bookkeeper employed by defendant, held, admissible against him. Donovan v. Clark, 138 N. Y. 631. Beld, also, that though plaintiff put such entries in evidence, he might show that they were fictitious or foreign to the partnership. -''^■ Entries made in a party's books of account regarding property which has been pledged with him, which are undisclosed to 2328 Evidence, III. Evidence — Continued. the pledgor and never assented to by him, have no more weight than the oral declarations of the party making them. Griggs v. Dle v. Wood, 126 JST. Y. 249. It is proper to prove communications made to defendant by his wife a week before homicide and the injury done to her by deceased for the purpose of showing the effect it had on de- fendant's mind. " Id. Such evidence is admissible on the ground that it is more or less corroborative of defendant's claim as to his mental condition. Id. Nor is such evidence rendered inadmissible by the fact that the act with which defendant is charged seems to have been com- mitted deliberately. Id. Testimony that murdered man said " There go the burglars," is admissible as bearing upon the opportunity the suspected men had to enter an agreement to resist arrest. People V. Wilson, 145 JST. Y. 628. Evidence that the suspected persons were brothers is also admis- sible as bearing on the issue of agreement between them to effect escape together. Id. Facts competent on the question of premeditation and delibera- tion. People V. Scott, 153 IST. Y. 24. "What may be proof on a trial for murder in the first degree to establish motive. Id. "What is competent on the question of intent and deliberation. People V. Shea, 147 IST. Y. 78. Testimony which explains the conduct of an officer killed in mak- ing an arrest is admissible. People v. Wilson, 141 N. Y. 185. Where an explosion in a powder mill was alleged to have been caused by sparks from a passing engine, and the evidence though circumstantial is strong enough, such allegation will be deemed proven. Babcoclc V. Fitchhwrgh B. R. Co., 140 N. Y. 308. Evidence may be given of acts which indicate the power and in- fluence of one charged with procuring others to violate the law. Peoples. MoKame, 143 N. Y. 455. "Where defendant participates in the arrangement of election dis- tricts, he is competent to show how they are arranged. Id. -Proof of good character may be subject to cross-examination. 2346 Evidence, XV. Evidence — Continued. Evidence of declarations of persons when applied to for inspection of registry lists is part of res gestm. Id. Exceptions to rulings which do not affect substantial rights may- be disregarded. _ Id. Mere probability is not enough to sustain a conviction for crime based upon circumstantial evidence. People V. Wright, 136 E". Y. 625. "What evidence is admissible on subject of motive upon trial of an indictment for the obtaining of an indorsement on a note by false pretenses with intent to defraud the indorser. People V. Cole, affirmed without opinion, 137 E". Y. 531. Under an indictment for killing defendant's wife, evidence of the relations between her and a man whom he found and kiUed with her, known to him at the time, was admitted in his behalf. Held, that the exclusion of facts of which he was ignorant was proper. People v. Osmond, 138 IS.. Y. 80. Upon the trial of an indictment for murder by a convict, evidence that after the act other convicts attempted to subdue the de- fendant and one was killed by him, was properly admitted. People V. Johnson, 139 K Y. 358. The admission of evidence that the accused stabbed a companion of the deceased after the offense for which he was indicted is not error. People v. PalUster, 138 IST. Y. 601. In an action against a railroad company by a brakeman injured by a defective brake where he claimed a proper inspection would have caused the defect to have been discovered, the re- jection of evidence to show that other brakes on cars of the road were defective was erroneous. Baily v. Rome, Watertown, etc., R. R. Co., 139 ]Sr. Y. 302. Evidence describing the scene and circumstances of an occurrence are competent. People v. Cassidy, 133 N. Y. 612. Map definmg precise location of a house attempted to be fired is competent. Id. Conviction may be had upon confessions voluntarily made. Id. A letter written while under arrest, indicating guilt, is com- petent. Id. Acts and conduct showing conspiracy are admissible. People V. SJiermcm, 133 N. Y. 349. "Where the terms of a will are doubtful, evidence of circumstances surrounding its execution is admissible. Morris v. SicUy, 133 N. Y. 456. "When evidence merely to show previous bad and vicious char- acter becomes admissible. People V. Harris, 136 IST. Y. 423. The rule that evidence in criminal cases should be confined strictly to the question in issue is not infringed upon, because the evidence offered, while tending to prove some essential fact EviDBNCB, XV, XVI. 2347 Evidence— Continued. in the guilt of the accused, may also prove the commission of another offense. Id. Where strange conduct of the accused has been proven, evidence of his intoxication may be proven. Feqple v. Miles, 143 N. T. 383. XVI. PEACTICE. Question, " Is there any form of insanity where the mind as fits comes and then there is a blank, and it goes ? " to which medical expert answered : " I do not know of any such form," was proper. People v. Osmond, 138 E". Y. 80. K jyrima facie case of conspiracy and of defendant's connection with it must be made out before acts in furtherance of it can be proved. Brackett v. Griswold, affirmed, 128 E". Y. 644. "Where a witness is unable to distinctly recollect the fact of an original entry made by him at the time of the transaction is admissible as an auxiliary to his testimony. People V. McLaughlin, 150 ¥. Y. 365. It may be shown by photograph the premises where the homicide took place. People v. Pustolka, 149 JST. Y. 5T0. It is admissible to prove that manufacturer knew the destination of the goods and question of his liability for latent defects ren- dering the goods unfit for transportation. Ca/rleton v. Lomhard, Ayres <& Co., 149 E. Y. 137. When an offer of proof made for the purpose of impeaching a witness may be excluded unless clear and embracing the ele- ments of a contradictory. People v. Yo%mgs, 151 if. Y. 210. Where defendant has shown that plaintiff and her daughter held their property in common, plaintiff should be permitted to show that the property which was the subject of the former action is owned solely by the daughter. Id. Letter written by one of the plaintiff's assignors to defendant, and assuming to characterize the nature of previous acts of the defendant, in a case where the intent of the defendant in the acts referred to is in issue, is material error. Banh of BriUsh JST.A.Y. Pelafield, 126 E". Y. 410. The proof against objection of a letter containing an offer of com- promise of a pending action is sufficient for reversal. Smith V. Satterlee, 130 E. Y. 677. Immaterial evidence calculated to prejudice the jury upon a trial for homicide is inadmissible. People V. Larubia, 140 E. Y. 87. Evidence of statements made by third parties, not assented to by defendant, is inadmissible. J^d. On the trial of an action against a railroad company for negli- gence to brakeman struck by a bridge while on one of the company's trains, the exclusion of evidence to show the usual 2348 Evidence, XVI^Exceptions. Evidence — Continued. distance of tell-tale signals from railroad bridges offered on be- half of plaintiff was erroneous. Wallace v. Central Vermont B. B. Co., 138 N. Y. 302. In an action by an abutting owner to recover damages when plaintiff was permitted, against defendant's objection, to prove the effect of the operation of the road on the premises upon the corner opposite to that upon which her premises were situated but defendant was prohibited from giving similar evidence, the exclusion of defendant's evidence was error. Doyle V. Mamhattom, By. Co., 128 N. T. 488. Admission of evidence tending to establish wrong measure of damages is error. Barnes v. Keene, 132 N. Y. 13. Judgment not reversed upon barely competent opinion of expert where no harm is done by such opinion. O'Neil V. Dry Dock, East Broadnjoay, etc., B. B. Co.y 129 ]Sr. Y. 125. Examination of Parties ; See Practice ; Witness. Excavations ; See Municvpal Corporations. "When made with consent of proper authorities, the person -is held to ordinary liability. Babhage v. Powers, 130 N. Y. 281. The license relieves the party from liability as for trespass, upon compliance with conditions. Id. An oral license is sufficient. Id. Consent on part of the city is to be inferred from knowledge of authorities. Id. Where no license has been obtained a higher degree of liability is imposed. Id. Exceptions ; See Evidence ; Practice ; Surrogate's Court. A general exception to findings is not sufficient to raise specific objections on appeal. Magovern v. Bdbertson, affirmed without opinion, 127 N. Y. 691. An exception to a finding should state specifically the ground of error relieved on. Hunter v. Manhattan By. Co., 141 N. Y. 281. Where there were many requests to charge on both sides, some of which were granted and some refused, an exception " to the granting of the requests on the other side, and a refusal to charge those of mine that were not charged," presents no ques- tion for review in the Court of Appeals. Huerzeler v. Central Cross-Town B. B. Co., 139 N. Y. 490. An exception in term to referee's conclusion of law, required by finding of fact on which it is based, is not available on appeal. Daniels v. Smith, 130 N. Y. 696. "J Exceptions — Execution and Supp. Proceedings, I. 2349 Exceptions— CoraimwecZ. When not sufficiently deiinite and specific not available. Id. A finding of fact not properly excepted to presents no question for review. Id. "Where the trial court directs a verdict in favor of defendant, an exception to the direction of the verdict is necessary in order to enable plaintiff to appeal. Curtis V. Wheeler & Wilson Mfg. Co., 141 N. Y. 151. Excise ; See Civil Damage Act ; Clubs ; Liquor Tax Law. Board may use its discretion in granting license. People ex rel. C Toole v. Boa/rd of Excise of Broohlyn, 133 K Y. 683. Each sale of liquor without a license is a separate offense. People V. Sinell, 131 IST. Y. 591. License cannot be revoked without due process. People ex rel. Silkens v. McGh/n, 131 IST. Y. 602. Failure to perform duty renders commissioners liable to indict- ment. People V. Meahen, 133 N. Y. 214. The fact that a fine might have been imposed will not prevent in- dictment. Id. Power to grant licenses under section 43 of the Excise Law as amended in 1893, considered. People ex rel. Cairns v. Murray, 148 N. Y. 171. "When a building is exclusively for schoolhouse, although oc- cupied by teachers. Id. What was not a sale within the meaning of the Excise Law. People V. Adelphi Club, 149 N. Y. 5. What is insufficient to sustain a conviction for selling liquor on Sunday. People v. Owens, 148 TST. Y. 648. Execution and Supplementary Proceedings ; See Arrest ; Attach- ment ; Redemption: I. Against the Peeson. II. Against Peopeety. III. Sale. IV. SUPPLEMENTAEY PeOCEBDINGS. I. AGAINST THE PEESON. A body execution may be issued under section 3026 of the Code bv one vrho assigns wages and fails to pav same to assignee. Fa/rreWy v. Hubbard, 148 N. Y. 592. The provisions of Code Civil Procedure (§§ 1731, 1825_, 1826), re- lating to execution against executors, do not apply in the case of judgment against a partnership, consisting of a survivor and executors of the deceased partner. .. -i-r -xr a «« Columbus Watch Co. v. Hoydenpyl, 135 IN. Y. 430. 2350 Execution and Supplementary Proceedings, I, II, III. Execution and Supplementary Proceedings — Continued. When action at law will not lie in behalf of an execution creditor of an insolvent corporation to recover the amount of his claim against a prior judgment creditor when the defendant's judg- ment was entered upon an offer in violation of the statute and in fraud of creditors. Braem v. Merchants' Nat. Bh., 127 IST. Y. 508. The proceeds received by fraudulent vendee on sale by him of prop- erty are the subject of equitable jurisdiction only. Id. II. AGAINST PEOPEETY. When upon authorized execution a levy is void as against an attachment levied by a creditor prior to confession of judg- ment, considered. Galle v. Todd, 148 JST. Y. 270. The withdrawal of an execution prior to the sale does not affect the lien of the attachment issued. Van Camp v. Sea/rle, 147 N. Y. 150. An execution issued on the day of but after the death of the judgment debtor, without notice to his legal representatives or permission of the surrogate, is absolutely void. Prentiss v. Bowden, 145 JST. Y. 342. Personal property willed to several legatees is subject to levy against all. Baskin v. Says, affirmed without opinion, 128 ~E. Y. 631. A judgment creditor may sell, under execution, lands fraudulently conveyed by the debtor prior to. the entry of the judgment without first obtaining a decree adjudging such conveyance to be void. ^mith v. Reid, 134 N. Y. 568. It seems, however, that the fraudulent grantor may convey a good title to a hone fide purchaser, and such conveyance would destroy the lien of the judgment. Id. A subsequent purchaser from the fraudulent grantee cannot claim hona fides, where at the time of his purchase the execution purchaser was in possession, claiming title under the sheriff's deed. Id. III. SALE. Construction of Code Civil Procedure (§1410), as amended by Laws 1881, chapter 681, concerning sales of real estate on execu- tion of title. Oilma/n v. Tucker, 128 N. Y. 190. In order to defend a sale upon execution it is necessary to show a levy and actual possession of goods. StoneSridge v. Perkins, 141 N. Y. 1 . Execution and sale under a void judgment will not affect the right to convey by purchaser. McCracken v. FlamMgam,, 141 IST. Y. 174. Notice to the grantee of defendant of purchaser's claim at the Execution — Executoes and Administrators, I. 2351 Execution and Supplementary Proceedings — Continued. execution sale will not estop him from asserting its inval- idity. Id. A sheriff who has advertised a sale cannot sell, under that notice, on an execution received after publication was commenced. Van Camp v. SeaHe, 147 N. Y. 150. lY. SUPPLEMENTAEY PKOCEEDINGS. A party by executing a recognizance consents to entry of judg- ment in case of forfeiture, which is equivalent to an appearance within the meaning of section 2458 of the Code, and supple- mentary proceedings may be had. People V. Cowan, 146 N. Y. 348. An execution issued more than ten years after the judgment was recovered cannot be made the basis of supplementary proceed- ings. Importers & Traders' JVat. Bh. v. Quachenbush, 144 N. Y. 651. "When a judgment creditor cannot maintain supplementary pro- ceedings. Importers & Traders^ If at. Bh. v. QuacJcenbush, 143 N. Y. 567. A compliance with the provisions of section 1252 of the Code does not authorize such proceedings as the execution required, as the basis thereof is not that prescribed by such section, but by section 2458. Id. Supplementary proceedings may be maintained against a foreign corporation having no business or agency in this state. Logan v. McCall PuhUshmg Co., 140 N. Y. 447. Executors and Administrators ; See Decedents' Estates ; Dejmvbions ; Surrogates' Courts', Trustees ; Wills. I. Geneeallt. II. Assets. III. Rights and Powers. lY. Duties and Liabilities. Y. Suits By and Against. YI. Payment of Debts and Legacies. YII. Sale of Eeal Peopeety to Pay Debts. YIII. Accounting and Fees. IX. Teusts. L GENERALLY. An order appointing the next of kin first entitled, administratrix of the estate of an intestate is not void so as to defeat the 2352 ExBCUTOES and Administrators, T, II. Executors and Administrators — Continued. remedy upon the administratrix's bond, by the fact that pre- vious letter had been granted to the public administrator. Power V. SpecMam, 126 K Y. 354. Such administratrix may, upon her letters becoming revoked by the probate of a subsequently discovered will, be directed by the surrogate to pay over to the executor of the decedent any funds in her hands. Id. Administrator, also sole next of kin, held corporate stock of in- testate, but without having it transferred on the books of the corporation before judicial settlement of his accounts, insuffi- cient to justify treating him individually as owner of the stock. Matter of Bingham, 127 JST. T. 296. Code Civil Procedure (§ 2699) was intended to give a discretion to modify the general tule prescribed by section 2667, in case adequate security had already been given or waived, or where only the security of domestic creditors was involved. Matter of Prout, 128 jN". T. 70. The reversal on appeal of a prior decree, judgment not having been entered, held, no answer to an application for a final ac- counting by an executor. Matter of Peeves, affirmed, it seems, without opinion, 128 K Y. 612. A surrogate has no power on an accounting to set aside on the ground of fraud an assignment to the executor of a share in the estate. Matter of Pamdall, 152 N. Y. 508. A judicial settlement of administrators is conclusive upon the sureties upon their bonds. Alimam, v. HofeUer, 152 N. Y. 498. An unrevoked order granting letters of administration is not conclusive upon next of kin who were not cited so as to estop them from attacking a decree of distribution. Matter of Patterson, 146 N". Y. 327. Upon death of owner the title to realty vests in his heirs and de- visees. Kingsland v. Mwrray, 133 IS". Y. 170. "Where sufficient personalty remains, the realty cannot be sold to pay debts. Id. Personal representatives are liable to creditors for misuse of per- sonalty. Id. II. ASSETS. Where the mortgaged premises are bought in by the administra- tor at sale in foreclosure of mortgage of decedent, they are to be regarded as personalty. Hahermam, v. Baker, 128 IST. Y. 253. Neither the heirs of the decedent nor the residuary devisee need join in the conveyances in order to pass good title. Id. Upon the execution of a contract for the sale of land and prior ExECTjTOES AND Administkatoes, II, III. 2353 Executors and Administrators — Continued. to a default on the part of the purchaser, there is an equitable conversion of the land, and where the vendor dies before the time of completion of the contract, in such case the proceeds pass to his executors as personalty. . Williams v. Haddock, 145 K Y. 144, The inventory and appraisal avQm'ima facie evidence of the ex- tent and value of the assets. Matter of Mullon, 145 N. Y. 98. "Where ownership by decedent of certain bonds is not proved, a written statement left by" him that plaintiff owns them is suf- ficient to establish plaintiff's title. Oovin V. DeMeranda, 140 N. Y. 474. Growing grass at time of testator's death goes to the devisee. Matter of Chamberlain, 140 N. Y. 390. Where executor, who is also life tenant, receives part of the pro- ceeds upon sale of such grass, it will be regarded as rent re- ceived by the life tenant. Jd. Damages recoverable for causing death of decedent are not gen- eral assets. Stuber v. McEntee, 142 N. Y. 200. III. EIGHTS AND POWERS. A power vested in executors who consent to act or may sur- vive, vests in sole survivor. Veele v. Keeler, 129 E". Y. 190. A temporary administrator has no authority to mortgage real estate. Duryea v. Machey, 151 JN. Y. 204. Even consent of the attorneys will not give surrogate power to authorize temporary administrator to mortgage real estate. Id. The executor of one entitled to a legacy has a right to receive it for the purpose of administration. Matter of Murjphey, 144 N. Y. 557. The executors of a vendor of real estate who dies before the time for completion of the contract have power to extend the time for completion by the purchaser. William.s v. Haddock, 145 IST. Y. 144. An administrator may purchase real estate at a foreclosure sale. Matter of Monroe, 142 IST. Y. 484. An administrator will not be removed for foreclosing mortgages held by him personally, and purchasing the same. Jd. Proof that an agent having authority to draw checks did so while his principal was dying, at the request of a messenger from the house of the latter and on his assurance that it was all right, is insufficient to show that the drawing of such checks was authorized. Matter of Jam.es, 146 IST. Y. 78. Where the will creates no trust, a fund contributed by the heirs to produce an annuity given by the will is held hy the execu- tor as agent of such heirs. Matter of Collins, 144 IST. Y. 522. Where the executor's petition for an accounting states that cer- 148 2354 Executors and Administratoes, III, IV. Executors and Administrators— Continued. tain payments were made to a person as legatee, he cannot claim they were made to such person as co-executor. Matter of Lang, 144 K T. 275. "Where a will empowers the executors to sell the real estate when in their judgment they deem it for the best interests of the es- tate, they are entitled to reimburse themselves from the pro- ceeds of such sale for debts paid by them. Matter of Bolton, 146 JST. Y. 257. One of several executors may sell the interest of his testator in a firm to the surviving partners who also are executors. Geyer v. Snyder, 140 N. Y. 394. Upon the accounting of the representatives of a deceased execu- tor, the surviving executrix has no official interest. Matter of Ilodgman, 140 N. Y. 421. Administrator with the will annexed is entitled to the residuary estate upon the settlement of the personal accounts of a de- ceased executor. Matter of MeDougall, 141 N". Y. 21. The unliquidated commissions of an executor are not assignable. Matter of Worthington, 141 K Y. 9. Under Code Civil Procedure (§ 2472), the surrogate may, upon the presentation of a petition by an administrator asking to be discharged upon making payments pursuant to a decree in proceedings for a final accounting then pending, and that ob- jections then filed be overruled, permit the filing of an answer by the next of kin and a hearing on the issues made thereupon. Matter of Cornell, 137 IST. Y. 600. An executor as such takes unqualified legal title of all personalty not specifically bequeathed, and a qualified legal title to that bequeathed. Blood v. Kane, 130 JS". Y. 514. He holds for benefit of creditors and those entitled to distribu- tion. Id. The trust estate of a sole legatee and devisee, after payment of creditors, becomes his legal vested estate. Id. Such executor, on proof that all the debts of the testator have been paid, may avail himself of a demand due the estate as a counter-claim in an action against him. Id. Where no notice to present claims had been published, but defend- ant testified that the debts had been paid, it is error to ex- clude proof of counter-claim. Id. lY. DUTIES AND LIABILITIES. Receipt by an administrator who had been discharged of his trust of the proceeds of propert}' of the estate sold thereafter, held, to make him personally responsible for the money when de- posited in a bank which subsequently failed. Harlow v. Mills, affirmed without opinion, 128 N". Y. 650. The executor of a deceased lessor is bound to carry out his testa- EXBCTJTOES AND ADMINISTRATORS, IV. 2355 Executors and Administrators — Continued. tor's covenant to rebuild in case of the destruction by fire of tlie demised premises. Chamberlains. Dunlojy, 126 N. Y. 45. Case where reconveyance of land made to executiix individually, the fact that she did not sign the bond in her official character does not render the mortgages void. Boarty v. McDermott, 146 N. Y. 296. An executor or administrator who, being also the residuary lega- tee, in good faith applies to his own use the assets remainirg after paying legacies and all claims presented in the usual course, cannot be held accountable except for the actual value of the assets or be charged with the profits of a business into which he puts them. Matter of Mullon, 145 JST. Y. 98. Where it is sought to hold an administrator liable for having made an improvident sale of an interest in leasehold property, evidence of the price paid by him a few days prior thereto on a purchase of a similar interest at private sale is competent. Matter of Johnston, 144 K. Y. 563. Where an administrator as such transfers a mortgage and re- ceives back an assignment thereof, said assignment is voidable. Beed v. Knell, 143 N. Y. 484. Payment of legacies unreasonably delayed may be ordered by surrogate. Matter of Scheidelar, 142 N. Y. 668. Executors are not liable to a judgment creditor having an interest in land sold under a power of sale. Sayles v. Best, 140 N. Y. 368. Where the surrogate in assessment proceedings, under section 13 of the Collateral Inheritance Act, determined that certain lega- cies were exempt from the tax, such adjudication was a com- plete bar to subsequent proceedings by the district attorney against the executors, under section 16 and section 17 of said act. Matter of Wolfe, 137 N. Y. 205. An executor is liable on accounting for use of trust funds and for interest thereon. Matter of Myers, 131 IST. Y. 409. Liability of trustees for use of money is not affected by pendency of action for revocation of probate. Id. Investment of trust funds in a firm renders executors chargeable with interest. Id. Purchase of propertj' by one of the executors who were tenants in common does not make them chargeable as trustees. Carpenter v. Carpenter, 131 N. Y. 101. The provisions of Code Civil Procedure (§ 2610), that the article in which that section occurs shall not affect the liability of sureties in a bond executed before the enactment of the chap- ter, does not refer to the remedy provided for enforcing such liability, and, by section 2606, is applicable in an action brought against the sureties. Potter v. Ogden, 136 JST. Y. 384. When such default is properly established by a decree against the 2356 Executors and Administeatoks, IV, V. Executors and AAmimstTatots— Continued. successor in administration of the deceased administrator who furnished the bond in question, considered. Id. The sureties upon an administrator's bond remain liable to next of kin until they can show lawful payment to parties legallv entitled to receive it. Id- Administrator is liable for proceeds of mortgage collected in which his intestate had a life interest. Matter of Hobson, 131 N. T. 595. V. SUITS BY AND AGAINST. It is well settled that when services are rendered to a testator under a contract to make compensation therefor by will, repre- sentatives may be sued. Collier v. Rufledge, 136 N. T. 621. The rule of damages in such case is the value of the services, and the fact that the testator was insolvent will not prevent a re- covery. Id. Equitable action may be brought for an accounting in real and personal property. Fabman v. Fatmhom,, 133 N. Y. 6T4. The ten years' Statute of Limitations applies to a proceeding under section 2606 of the Code brought by an administrator de honis nan to compel the personal representative of deceased to account. Matter of Rogers, 153 N. Y. 316. "Where foreign administrator has duly commenced an action upon an insurance policy found in that state by ser\'ice on an agent of the company, the courts of this state should refuse to enter- tain jurisdiction of a subsequent action. Sulz V. Mutual Reserve Fwad Life Ass''n, 145 N. Y. 563. Claims against estate should be established by satisfactory evi- dence. Van Slooten v. Wheeler, 140 N. Y. 624. An attachment may be granted in an action of conversion brought by an administrator with the will annexed against an executor who had been removed. Vam Ca7njp v. Searle, 147 N. Y. 150. The surrogate has no power to compel a legatee to restore the amount of an overpayment, but the executor raav sue to recover it. _ _ Matter of Zang^l4A: JST. Y. 275. An action upon a claim against an estate, brought more than six months after its rejection, is not barred by the statute, where the executor was a non-resident. Rayden v. Pierce, 144 N. Y. 512. An executor cannot recover a payment voluntarily made. Matter of Hodgman, 140 IST. Y. 421. A mutual accounting between executor and executrix and execu- tion of releases are a bar to action for further accounting by an executor. Matter of Pruyn, 141 N. Y. 544. Failure to make a minor child a party to the proceeding is not error. " Id. Executors and Administrators V, VI. 235T Executors and Administrators — Continued. One who loans money to an executor, believing it to be misapplied, is responsible to those injured by conduct of executor. Gotsberg v. JJ. S. Natl. JB Anderson v. Culver, 127 IST. Y. 377. Evidence of collusion is admissible in an action to foreclose a corpo- rate mortgage brought on request of a competing company. Farmers' Loan <£; Trust Co. v. JV. Y. a; Northern It. Co., 150 ]Sr. Y. 410. An action to foreclose a mortgage on real property is within the provisions of subdivision 1, section 3253 of the Code, limiting an extra allowance to $200. Waterhury v. Tucker & Carter Cordage Co., 152 IST. Y. 610. An order of the General Term reversing an order allowing an amendment of the complaint after trial, in an action of fore- closure, by setting up an admission from the mortgage by mistake of land intended to be covered by it, and asking a refor- mation of the mortgage, is discretionary. Sprague v. Cochran, 144 JST. Y. 104. 3. Judgment. "When judgment of foreclosure did not determine a wife's right to dower against a purchaser at the sale, or his grantee. Nelson V. Brown, 144 N. Y. 384. 2366 FoKECLosuEE, II — Foreign Judgments. Foreclosure — Continued. Judgment following the prayer of the complaint that junior mortgage be paid from proceeds of sale is binding upon senior mortgage and is a bar to an action to foreclose his mortgage. Jaoohie v. MicUe, 144 N. T. 237. An amendment of a judgment of foreclosure in an action in which the mortgage trustee was made a party but did not answer, by directing such trustee to convey to the purchaser at the sale, is at most voidable. Harrison v. JJnicm Trust Co., 144 N. Y. 326. Where the complaint in an action of foreclosure alleges that the mortgage was given by the executrix in pursuance of a power of sale m the will, and the widow, both as executrix and indi- vidually, and the infant remaindermen are made parties there- to, the judgment therein is conclusive as to those facts against all the defendants, and a purchaser at a sale thereunder will take a good title. Boa/rty v. MoBermott, 146 N. T. 296. 4. Sale and Eights of Purchaser. "Where the owner of the equity has not been made a party to the foreclosure suit the purchaser at the sale becomes an assignee of the mortgage. Townshend v. Thomson, 139 N. Y. 152. "What evidence is insufficient to relieve the purchaser at a fore- closure sale from his purchase on a grant that the owner of fee was not served. 0^ Connor v. FeUx, 147 N. Y. 614. A resale may be ordered where the defendant was misled into neglecting to attend the sale by an oral agreement of plaintiff's attorney that the full amount of the mortgage would be bid. Mutual Life Ins. Co. v. CBonnell, 146 K Y. 275. Foreign Corporations ; See Corporations. A foreign corporation shown to have been legally incorporated and entitled to recognition in the state where it was organized, is entitled to recognition in this state in the absence of any statute affecting it, unless it appears that the corporation was formed to do acts prohibited by the laws of this state. Dema/rest v. Flach, 128 IST. Y. 205. State may exclude all foreign corporations save those in employ of Federal Government or engaged in interstate or foreign com- merce. People ex rel. Southern Oil Com/pam,y v. Wemple, 131 IST. Y. 64. A foreign corporation created for the purpose of dealing in real estate may transact such business in tnis state. Lancaster v. Amsterokum Improvement Co., 140 N. Y. 576. It is not the policy of this state to prevent a foreign corporation from transacting lawful business in this state. Id. The facts that all the business done by a foreign corporation is in this state will not deprive it of recognition in this state. Id. Foreign Judgments ; See ConjJAot of Laws ; Evidence. Foreign Laws — Foemee Adjudication. 2367 Foreign Laws ; See ConjUct of Lcms ; Jbkidence. Foreigners; See Aliens. Forfeiture; See Contracts; Insurance. Forgery ; See Criminal Lam. One who procures a forged signature to be written, being present at the time, is properly charged as a principal. ' People V. Tower, 135 N. Y. 467. Indictment charging forgery when not demurrable is charging two crimes. People v. Altmam,, 147 K Y. 473. Checks found on defendant cannot be proved in evidence unless they are shown to be forgeries. Id. Error to refuse to submit question of criminal intent to jury. People V. Wiman, 148 ]n". Y. 29. An unauthorized alteration of an instrument before execution does not constitute a forgery. People V. Underhill, 142 N. Y. 38. An instrument of a corporation is falsified only when it is altered after execution. 7"^. A paper is not a writing until it is signed. Id. Former Adjudication ; See Estoppel ; Judgments; Stare Decisis. The findings of a court in a prior action between the same parties on the precise point involved in a subsequent action, does not constitute a bar, unless followed by a judgment based thereon. Springer v. JBien, 128 N. Y. 99. Li an action by a trustee of an estate to compel an accounting the beneficiaries are bound by an adjudication dismissing the com- Elaint on its merits. Matter of StroMt, 126 N". Y. 201. en a trustee may sue in his own name, the beneficiaries are bound by the results of the action. Id. When it must be presumed that the acts were distinct and separate offenses. People v. Dewey, affirmed, 128 JST. Y. 606. Judgment in a former action, although defendant participated in it only on notice, is binding. Carleton v. Lomba/rd, Ayres <& Co., 149 IST. Y. 137. Evidence held insufficient to prove that counter-claim was not dis- posed of and was not considered on its merits in a former action. Wright v. Miller, 147 N. Y. 362. Acceptance of offer of judgment of some articles claimed in re- plevin suit fixes titles of ownership of other articles in party makmg offer. Shepherd v. Moodhe, 150 N. Y. 183. A judgment in favor of a landlord in summary proceedings for non-payment of rent is a bar to an action by the tenant to cancel the lease. Cochran v. Beich, 151 N. Y. 122. 2368 FOEMEE ADJTJDICATIOlir. Former Adjudication— Continued. When General Term vacated but did not deny the application by- attorney for lunatic for allowance, this decision was not a bar to an action against the estate of the lunatic after his death founded on the claim for services. Carter v. Beckwith, 128 N. T. 312. A Surrogate's Court has no jurisdiction over realty left by a de- cedent or its avails, unless so provided bya will or by a statute. Sweeney v. Warren, 127 K". Y. 426. In the absence of proof by the record of what questions were litigated, or of the grounds of reversal, an order of reversal is not available as a previous adjudication of the validity of the contract. JJnglish v. Marvin, 128 N. Y. 380. A party relying on a former adjudication must show that the point involved was shown in a former suit. Id. A judgment recovered by a married woman in an action to which her husband was not a party, reversed on appeal, is not a bar to a subsequent action by the husband upon the same claim. Stamp v. Frmiklin, 144 'E. Y. 607. To conclude either of the parties, the judgment must be conclu- sive upon both. iSfelson v. Brown, 144 N. Y. 384. Judgment upon failure to perform some preliminary act is not a bar to another action begun after the performance of such act. Bose V. Handey, 141 JST. Y. 366. Whether additional facts preclude a new action after judgment absolute, upon stipulation, — qumre. Id. A judgment which establishes that upon the existing facts plain- tiff had no valid title is not a bar to an action based upon a title attached to a subsequent possession. Kvng V. Townshend, 141 N. Y. 358. Kecovery of a void judgment is not a bar to another action for . the same cause. Beed v. Chilson, 142 N. Y. 152. Upon the sale of salvage of a wrecked vessel, a foreign admiralty court has no power to award the surplus to a third party as claimant. China Mut. Ins. Co. v. Force, 142 N. Y. 90. It seems that the construction of a contract adopted by the court in awarding a mcmdanvus against a state comptroller is not conclusive upon the state in a subsequent proceeding on the same claim before the Board of Claims. Parmenter v. State, 135 N. Y. 154. In an action for the cancellation of an agreement for separation made before an action for divorce was begun upon evidence dehors the instrument showing its invalidity, the judgment in the action for divorce was not a bar. Galusha v. Oalusha, 138 N. Y. 272. A decision of a surrogate construing a disposition of personal property is not conclusive in an action to construe the will as to real estate. Corse v. Chapman, 153 IS". Y. 466. Former Adjudication. 2369 Former Adjudication — Continued. A former judgment cannot be nullified by the production of an earlier judgment not presented in the second action. Shaw V. Broadhent, 129 IST. Y. 114. In order to be a bar a judgment should be in his favor and upon the same facts presented in a subsequent case. Id. An issue in a former action erroneously decided does not estop the parties in a subsequent action. Id. Dismissal of a former action does not bar a new action unless it includes some material issue common to both cases. Eose V. City of Yonkers, 133 N. Y. 316. The rule of res adjudioata applies to all judicial determinations. Culross v. Gibbons, 130 IST. Y. 447. A judgment in a creditor's suit prosecuted by an assignee for creditor who has been substituted as such as plaintiff in that action, is not conclusive upon the same plaintiff in a similar subsequent suit brought by him individually. ColUns V. Hydorn, 135 N. Y. 320. Such former judgment is not conclusive upon the principle ap- plicable to judgments m, rem,. id. A prior mortgagee, who has foreclosed her mortgage without making a junior mortgagee a party, and purchased in a part of the premises at the sale, may maintain another action to fore- close her mortgage against the omitted party. Moulton V. Cornish, 138 N. Y. 133. A recovery in a former action against a trustee of simple interest upon the plaintiff's claim, is a bar to a subsequent action to charge his personal representatives with compound interest upon the same claim. Price v. Holmam,, 135 JST. Y. 124. In an action against a town to recover on coupons attached to its bonds issued in aid of a railroad, the defendant is estopped from questioning the validity of such bonds by a judgment rendered against it in an oquitable action brought by it against the present plaintiffs for the cancellation of such bonds. Williamisburgh Sa/oings Bh. v. Town of Solon, 136 N. Y. 465. It seems that the former judgment is conclusive upon the general question of the validity of the bonds. Id. "Whenever the same issue arises between the parties in whatever form of action, and whether involved directly or collaterally, they are forever precluded from averring and proving the fact to be otherwise. House v. Lochwood, 137 N. Y. 259. A finding that a deed was intended as a mortgage, unnecessarily made in an action to compel the delivery of an entirely dif- ferent deed, was not conclusive in a subsequent action. Id. A judgment against a party is admissible in a subsequent similar action. Dyett v. Hyman, 129 IST. Y. 351. Discontinuance of an action as to some does not deprive a judg- ment of its validity as against others. -''*• 149 2370 FoKMBK Adjudication— FEAtrD. Former Adjudication — Continued. The appearance of a party in different capacity in each action does not deprive judgment of its conclusiveness. Id. A party to an action is not bound by determination of a former action to which he was not a party. Ostrmder v. Ma/rt, 130 N. Y. 406. A judgment for specific performance of contract, sought to be avoided because of error, does not bind subsequent purchaser raising same objection. Dvngley v. Bon, 130 N. Y. 607. Judgment against parties in a former action is binding upon them in a later action. Tcmziede v. Jumel, 133 E". Y. 614. A party to a subsequent action is controlled by decision of some point in former action. Id. Claim to an estate in fee is not barred by the execution of a certificate vesting a life estate under decree in partition. YieU V. Xeeler, 129 N. Y. 190. Where the validity of a lease is decided, such judgment cannot be attacked in a subsequent action on ground of invalidity of lease. Sohn V. Hutch, 133 K Y. 64. A verdict of acquittal on ground of variance cannot be claimed in a later action to have been allowed on merits. People V. MeaJeim, 133 N. Y. 214. An adjudication by a surrogate in a collateral inheritance tax proceeding, that a certain amount of property passed to the re- siduary legatees, is only conclusive upon the subject of taxation. Trustees of Amherst College v. Bitch, 151 N. Y. 282. An order requiring a relative to pay a certain sum a week for the support of a poor person is not res adjudicata in an action upon such order to show that it had been terminated by the discharge from the poorhouse of such person, followed by sub- sequent self-support. Ald/ridge v. Walker, 151 N". Y. 527. Franchise ; See Corporation. Fraud; See Contracts; Deceit; False Bepresentations ; Iraudulent Conveyances / Beformation of Insi/ruments / Sales. A recommendation of credit given to an insolvent person ad- dressed to " Mr. H." justifies any one of that name in acting on it. Hadcoch v. Osmer, 153 N. Y. 604. The title of a buyer of goods cannot be impeached on the ground of fraud without showing that the false representations alleged to constitute the fraud were relied upon by the seller and induced the sale. Hotchhins v. Third Wat. Bh., 127 N. Y. 329. It seems that if the buyer is insolvent and conceals the fact from the seller, the title of the property is not changed and may be reclaimed by the seller. /^_ But mere insolvency without the intent to defraud is not suiflcient. /^. Fbaud. 2371 Fraud — Continued. Evidence tending to establish such fraudulent intent considered and held sufficient. Id. What facts a complaint of action of fraud should allege. Eley V. HeaVy, 127 N. Y. 555. In such a case the plaintiff need not offer to restore or tender what was received in a transaction sought to be avoided. Id. An investor is not chargeable with fraud because he fails to in- vestigate affairs of concern that has failed. Higgins v. Crouse, 147 N. Y. 411. Failure to inquire into circumstances which suggest fraud makes parties so failing chargeable with knowledge of fraud. Id. One who neither withholds nor misstates facts cannot be guilty of fraud because he does not disclose his opinion, and because the courts decide the law to be other than he claims it to be. Trustees of Amherst College v. Bitch, 151 N. Y. 282. "Where fraud has been practiced upon the vendor by the vendee in a sale or conveyance of real estate, the vendor may either proceed in equity to rescind the contract by restoring the parties to their original position, or he may proceed at law in a contract and recover his damages for the deceit. Yeomcms v. Bell, 151 JST. Y. 230. In an action for damages for the fraud of the vendee in the purchase of real estate the vendor can only recover an indemnity for his loss. Id. Absence of knowledge of fraudulent confession of judgment by iudgment creditor considered to free judgment from fraud. Oalle V. Todd, 148 JST. Y. 270. An execution on such a judgment is void as against an attachment previously obtained. Id. Fraudulent representations inducing party to marry is basis for action for loss of consortium. KtijeTc v. Goldman, 150 IST. Y. 176. Where fraud is made the basis of an action it must be proved, and in such case no recovery can be had upon proof of a right of action on contract or of some other character. Truesdell v. BourJce, 145 N.Y. 612. An omission from a statement of the assets and liabilities of a corporation of a claim against it which is being litigated is not fraudulent when party making statement believed its claim could not be enforced. Kountze v. Kennedy, 147 N. N. 124. The mere fact that the person making a statement of assets and liabilities of a corporation was the president thereof does not warrant an inference that such statement is given upon his personal knowledge. ^f- A vendor of goods, upon discovery of fraud inducing the sale, may rescind and follow the proceeds in the hands of a sheriff. Cormerse v. SickUs, 146 JST. Y. 200. When a court of equity has power, upon rescission of the sale in- 2372 Fkaud. Fraud — Continued. duced by fraud, to reach such proceeds in the hands of the fraudulent vendee or his voluntary assignee. Americom Sugar Refining Uo. v. Fomcher, 145 N. _Y. 552. Bank is not liable to refund the amount of cheeks obtained by fraud to the owner of the security fraudulently pledged, to obtain amount of checks, although the application was not made in fact until after the failure of and an assignment by such depositor. Hatch V. Fourth Nat. BTc. of New York, 147 N. T. 184. Not only false statements, but intent to deceive must exist. MoIntyreY. Buell, 132 ]Sr. T. 192. Every party is deemed to intend the natural consequences of his own acts. Coursey v. Morton, 132 IS". Y. 556. "When a false statement by the vendor concerning the price he paid for the property is sufficient for a finding of fraud. Fairchild v. MoMahon, 139 E". Y. 290. An action by a bondholder to annul a contract entered into by. a committee of bondholders for the purpose of effecting reorgani- zation with defendants and alleged to give the latter undue advantage and to be made without proper consideration, is not sustainable where the contract was witnin the authority of the committee and no fraud is claimed or shown. . Brooks V. Dick, 135 N. Y. 652. An offer of judgment is not a collusion which violates any rule of law or gives the right to another creditor to interfere. CoVumlus Watch Co. v. Hodenpyl, 135 IST. Y. 430. Sale of the interest of testator to surviving partners united in by all the legatees is valid after lapse of sixteen years. Geyer v. Snydier, 140 N. Y. 394. In order to recover property conveyed by fraud actual notice of the facts relied on must be shown. Holland v. Brown, 140 N. Y. 344. The possession must be such as is actually inconsistent with the title of apparent owner. Id. The fact that a contract is unnecessarily under seal is no bar to an action for fraud. Bridges v. Goldsmith, 143 JS". Y. 424. Nor the incorporation of a clause barring right of action for fraud. Id. Where presumption of innocence is equal to presumption of guilt, the former prevails. Constamt v. University of Rochester, 133 N. Y. 640. A person making statements recklessly and carelessly in order to form a contract is liable if such statements are false. Daly V. Wise, 132 K Y. 306. In an action on a city contract "where the defense is fraud, it is not incumbent on defendant to show precisely how the fraud Fraud — Fraudulent Conveyances. 2373 Fraud — Continued. was concocted, or what particular officials were implicated in it. Nelson v. Mmjor, etc., of N. Y., 131 N. Y. 4. Contract based upon fraud imposes no obligation. Id. An intent to defraud may exist when goods are received, although not when the order was given. Whitten v. Fitzwater, 129 IST. Y. 626. The party defrauded may rescind after discovery and recover what has been parted with, or continue performance and claim damages. Fryor v. Foster, 130 N. Y. 171. If he rescind he must do so immediately upon discovers of fraud. Id. Continued occupation is no bar in an action for misrepresenta- tions as to amount of coal required to heat house leased. Id. Fraudulent intent must be shown to set aside a conveyance not made upon a valuable consideration. Xain V. LarUn, 131 N. Y. 300. The character of the transaction is to be determined by the cir- cumstances attending the execution of conveyance. Id. Every necessary fact must be established by competent evidence. Id. A creditor obtaining a bill of sale lona fide can hold it against the world. Manning v. BeoTc, 129 N. Y. 1. But otherwise where it is obtained with knowledge of an in- tended assignment. Id. Fraudulent Conveyances; See Assignment for Creditors ; Chattel Mortgages ; FroMd. When an action by a judgment creditor in his own behalf to set aside a conveyance of the debtor as made in fraud of creditors can be maintained. Prentiss v. Bowden, 145 E". Y. 342. An execution issued on the day of, but after the death of the judgment debtor, without notice to his legal representatives or permission of the surrogate, is absolutely void. Id. A voluntary conveyance, by one indebted at the time, is pre- sumptively fraudulent. Smith v. Beid, 134 N". Y. 568. The lands embraced in such conveyance may be sold under an execution against the fraudulent grantor, without setting aside the fraudulent conveyance. Id. A finding that a grantor was " financially embarrassed " is not equivalent to a finding of insolvency. Jacols V. Morrison, 136 IST. Y. 101. "When a purchaser of real property at auction will not be relieved from his purchase on the ground that his title comes through a conveyance in trust to pay out of the proceeds certain out- standing liabilities. ^d. A conditional sale of machinery under an agreement, by the 2374 Featjditlent Conveyances — Freight. Fraudulent Conveyances — Continued. terms of which the title remains in the seller until it is paid for, constitutes no fraud upon the creditors of the buyer, and no filing of the instrument is necessary under Laws 1884, chap- ter 315, as against such creditors. Prentiss Tool S Supply Co. v. Schirmer, 136 N". T. 305. The fact that the buyer is permitted to sell materials em- braced in the instrument, upon the condition that the pro- ceeds of sales shall be accounted for and paid to the seller to apply upon the purchase-price of the property, will not render it void as to creditors. Id. An absolute biU of sale of materials in course of manufacture, which remain in the possession of the seller, is presumptively fraudulent as against creditors. M. "Words " without notice " construed. Wilson V. Marian, 147 K T. 589. Absence of knowledge of fraudulent confession of judgment by judgment creditor considered to free judgment from fraud. OaOe V. Todd, 148 IST. Y. 270. An execution on such a judgment is void as against an attach- ment previously obtained. Id. When books of parties to fraudulent transfer may be proved to show valid debt or its non-existence. White V. Benjamin, 140 IT. T. 258. In an action to set aside conveyance on the ground of fraud, a waiver as to when a parcel wiU not operate to prevent the con- tinuance of actioji as against another. GeUer v. Littlefield, 148 IST. T. 603. An action for general creditor of deceased insolvent debtor under chapter 740, Laws 1894, is compulsorily referable. National Shoe (& Leather BTc. v. Baker, 148 N. T. 581. A party attacking sale on the ground of fraud may prove fraudu- lent intent of vendor. Beuerlien v. O^Leary, 149 X. Y. 33. Vendor testifying as to his good faith in a sale may cross-examine as to contrary admissions. Id. Fraudulent transactions related in character or time are rele- vant as to intent. Id. Excessive preference by a debtor to a creditor, followed by general assignment, is not necessarily void. Ahegg v. Bishop, 142 N. Y. 286. The only remedy is an action to subject the excess to the claims of creditors under the assignment. Id. Freight ; See Carriers ; Ships and Vessels. Payment of freight is earned only by delivery of cargo at des- tination. China Mut. Ins. Co. v. Force, 142 JST. Y. 90. The law of the place where the affreightment is made determines the rights of the parties. Id. Game Laws— Gas Companies. 2375 Game Laws. Laws 1879, chapter 634, section 23, as amended by Laws 1884, chapter 127, which prohibits the taking of fish in certain waters, does not allow a criminal offense to be charged. People V. Tanner, 128 N. Y. 416. On an indictment for having a fish net on the shore of water inhabited by black bass, findings of jury held to be justified by weight of evidence. Id. Fines and penalties must be paid to commissioners of fisheries under sections 238 and 240 of Game Law. People ex rel. Huntington v. Crennan, 141 N. T. 239. Fines imposed before the game law was amended were also pay- able to said commissioners. Id, Chapter 388, Laws 1896, authorizing the seizure of any vessel used in disturbing oysters is unconstitutional. Colon V. Ush, 153 I^. T. 188. Gaming ; See Setting and Gaming. The act of a racing association in offering premiums for horse- racing does not constitute gambling. People ex rel. Lawrence v. Fallon, 152 E". T. 12. One who makes or records a bet on a horse-race authorized by chapter 570 of 1895 is not guilty of any offense under section 351 of the Penal Code. Id, Section 17 of chapter 570 of 1895 imposing an exclusive penalty for making a bet on a horse-race is not unconstitutional. Id. Gas Companies ; See Mcmufacturing Corporations. Gas companies are bound to use their pipes in a reasonable man- ner. Evams V. Keystone Oas Co., 148 N. Y. 112. "What are sufficient facts to justify a finding that the damage to trees was due to the leakage of gas. Id. Whether a gas company was negligent in relying on pipmgs m a building is a question of fact for the jury. Schemer v. Oas Light Co. of Syracuse, 147 JN . Y. 529. A lease which may be ult^a vires and invalid as regards the state may be enforced between the parties. . nv-r ^ ^. ^ Bath Gas Light Co. v. Claffy, 151 IT. Y. 24. A grant by municipal authorities to a gas company to lay its mains in the streets and highways, includes those streets sub- sequ^ y^^ g^ ^gl Woodha/ven Gas Company v. Peehan, 155 K Y. 528. 2376 Genbeal Avbkage— Grant. General Average ; See Insurcmce ; Ships and Vessels. Gift ; See Husband and Wife ; Volunta/ry Gonveyamee. Giving key which afforded access to bonds of the intestate at the time he expressed the intention to give them to the plain- tiff, is sufficient to transfer present title if the key was given with that intent.- Pink V. Church, affirmed, it seems, vnthout opinion, 128 N. Y. 634. It is sufficient to constitute a gift of money that the donor delivered a check payable to the order of donee. PicMmj V. Sta/rr, 149 K T. 432. Circumstances under which money given to employe is to be considered a gift. Id. The deposit of moneys in a savings bank in the name of the de- positor " or " her daughter, and the delivery of the pass-book to the latter, who had possession of the mother's property, is not sufficient to establish a gift. Matter of JBolin, 136 N. Y. 177. The law never presumes a gift ; intent and delivery are essential elements. Id. The deposit of a sum in a savings bank in the name of the de- positor's son, then under age, the retention of possession of the pass-book by the depositor for twenty-two years until his own death after that of the son, the latter never having knowledge of the deposit, is not a gift. Beaver v. Beamer, 137 If. Y. 59. Good Will ; See Pa/rtnership. Goods Sold and Delivered ; See Sales. Grant ; See Commissioners of 'Zand Office / Fra/ncMse / Title to Lands. Conveyance of lands under waters can only be made to the owners of the upland. E. C Blakslee Mfg. Co. v. E. G. Blahslee's Sons' Iron Works, 129 ISr. Y. 155. Effectual conveyance of uplands cannot be made where the rights and privileges of lowlands are excepted. Id. Patent from the state is not assailable collaterally. Id. Provisions of Laws 1878, chapter 171, transferring a portion of the Chemung canal to the city of Elmira for street purposes vest the fee to such property in the city. Pe Witt V. Elmira Transfer Ry. Co., 141 N. Y., 495. Provisions of 1 Revised Statutes, 748, section 1, that all the estate or interest of the grantor shall pass by the grant, unless the intent to pass a less estate shall appear by express terms or be necessarily implied in the terms of the grant, applies to a grant of state lands by act of the legislature. Id. Grant — Gtjaeanty. 2377 Grant — Continued. Lands below high-water mark of navigable waters will not pass by a patent unless they are expressly included. Be Lamcey v. Piepgras, 138 N. Y. 26. A crown patent reserving rent is liable to forfeiture in case of non-payment, and the interests of the crown having become vested in the people of the state, the state may avail itself of the delinquency by legislative enactment. Id. A conveyance by the comptroller of land between high and low water granted by the crown, with the proviso that it should not interfere with any privilege of mooring vessels or fishing, is subject to the same reservation. Id. Structures built upon land below high-water mark to restrain cattle and for convenience of fishing and landing and open to public use, do not establish individual possession or occupancy so as to require notice upon their sale by the state. Id. Growing Crops ; See Elements. Guaranty ; See Surety. "What conditions amount to a limitation and not a condition to guarantor's liability. Powers v. Clarice, 127 N. Y. 41 T. The law does not hold creditor responsible for any deception Eracticed by the principal upon the guarantor, without the nowledge of the former. Id. Case where a guaranty of payment of goods to be purchased, in form addressed to an individual, was intended to. cover pur- chases from a firm carrying on business in the name of such in- dividual. Beakes v. BeCunha, 126 E". Y. 293. A provision in the guaranty requiring notice of purchase to be sent before a certain time to the guarantor, is satisfied by notice by mail, no objection ever having been taken thereto by the guarantor. Id. A continuing guaranty of payment for goods purchased by a third person upon the faith of which such goods are sold and de- livered upon credit is sustained by sufiicient consideration. Id. An agreement by an adjustor to pay the companies the cost of damaged goods," they to pay as for total loss, and if a company failed, he to pay the insured the cost price, is not within the statute of frauds. Goodman v. Cohen, 132 N. Y. 205. "Where a party, intending to enter into a contract with another, prior to its execution secures from the other a guaranty of the performance of such contemplated contract, in which the terms by which surety is to be bound are specified, and the contract, when drawn, does not correspond to the terms of the guaranty, the surety will be discharged from liability for default in the contract as made. Page v. Krekey, 137 JST. Y. 307. 2378 Guaranty— Guardian and Ward. Guaranty — Continued. The fact that the change in a contract is not material will not affect the rule. Id. A guaranty given to a firm terminates with the existence of the firm. Bermet v. Draper, 139 N. T. 266. A bond given to a firm conditioned that the obligors would pay the obligees, " their successors or assigns," construed. Id. "What failure by a creditor to sue and prosecute suit to collect a note will as matter of law constitute a failure to use due dili- gence which will prevent recovery against a guarantor of col- lection. Chatham Nat. BK v. Pratt, 135 N. T. 423. A bond given on the dissolution of a partnership on behalf of a retiring partner that he would pay to his co-partner " one-half of the amount of the notes, accounts and claims of the late firm that shall prove to be uncollectible," construed. Ralph V. Eldridge, 137 N. T. 525. The guarantor of a mortgage is not entitled to a reduction of the sum guaranteed by the insurance money received upon destruc- tion of the property. Smith v. Ferris, 143 IST. T. 495. A guaranty to pay installments as the work proceeds does not render the guarantor liable for a breach of contract resulting in abandonment of the work. Be Luka v. Ooodmvn, 142 IS.. Y. 194. "Where the terms clearly indicate a continuing guaranty, parol evidence is inadmissible to aid in the construction. Benry McSha/ne Co. v. Paddam., 142 N. T. 207. What constitutes an absolute promise to pay a debt by one cred- itor of all the debtor's property. Clark V. Howard, 150 IST. T. 232. A creditor promising to pay debtor's debt, may be sued by an- other creditor who was not privy to the contract or consid- eration. Id. Guardian-ad-Litem ; See Practice ; Infant. Appointment for non-resident infant before expiration of time when substituted service of summons became complete is void. Crouter v. Crouter, 133 N. Y. 55. Guardian and Ward ; See InfaM; Pa/rent and Child. A judicial settlement of administrators or guardians is conclusive on the sureties upon their bonds, and its effect, so long as it is unreversed, cannot be affected by an order of the General Term. Altman v. Hofeller, 152 N. Y. 498. Mere acquiescence on the part of the ward would not estop him from asserting his right, nor does the fact that a portion of the proceeds was applied to secure the release of a chose in action Guardian and Ward. 2379 Guardian and "Ward— Continued. for the benefit of the ward authorize a deduction from the full amount due the ward. J^oley V. Mutual Life Insurance Co., 138 N. Y. 333. The surrender of a policy of insurance on his own life in favor of his wife and children made by the insured after the death of his wife, who had attempted to make him testamentary guard- ian of the children, is void in absence of authority. Id. A settlement by a guardian with his ward, procured by fraud, does not discharge the sureties on his bond so as to exonerate them from liability after such settlement. Douglass v. Ferris, 138 N. Y. 192. The decree of the Supreme Court setting the discharge aside, which fixed the amount due from the guardian, was conclusive upon the sureties. Id. "While they might ordinarily have availed themselves of a lack of due diligence as a defense to an action on their bond, where they were ignorant of the fact that the discharge had been de- creed, the defense of laches would not avail in an action on the bond. Id. Delay of more than a year upon the guardian's promise fulfilled in part to make restitution is not, as matter of law, ladies. Id. Omission to notify the sureties on discovery of the fraud by the ward does not release them. Id. The estate of a surety, who had died after the action on the bond was commenced, was not discharged. Id. "Where a settlement by a ward was set aside for fraud and the liability of the sureties on the guardian's bond established in a subsequent action, costs in the action against the guardian should not be charged upon them. Id. The guardian cannot bind the ward by an admission consisting of an unnecessary statement in behalf of the wa,rd in support of the claim for death benefits from a benefit society. Buffalo Loan, Trust, etc., Co. v. Knights Templar <& Ma- sonic Mut. Aid Asso., 126 N. Y. 450. A Surrogate's Court has no power to direct the latter to pay over to the ward a sum, to the possession of which the guardian is per- sonally entitled as life-tenant. Matter of Camp, 126 E". Y. 377. "Without the guardian's consent, the surrogate has not jurisdiction to deduct the gross value of his life interest and to direct the payment of the balance. -'^• The power of the surrogate is limited to the taking of an account and the direction of payment of the sum thereon found due ; but the power to see that the fund once rightfully in the bands of the guardian, but lost by him, rests in a court of equity. Id. The guardian of an infant by virtue of appointment by the sur- rogate acquires no authority until the letters of guardianship art signed. Fotter v. Ogden, 136 N. Y. 384. 2380 Habeas Corpus — Health. H. Habeas Corpus. When a traverse is interposed to a return to a writ of habeas corpus the issue is made up, and no further pleading is required. Matter of Simon, reversed in 128 IS". Y. 625. The court must proceed to hear the evidence, and a discharge without a hearing treating the allegations of the traverse as true is erroneous even though the traverse be not demurred to. Id. Where a person is committed by a magistrate where brought before court, the only inquiry is whether the magistrate had jurisdic- tion of the case and authority to pronounce a judgment of imprisonment for the cause assigned. People ex rel. DoMziger v. Protestant Episcopal Souse of Mercy, 128 K _T. 180. A review on the merits is not permitted upon habeas corpus, and the return need not embody the evidence taken on the trial of the person in custody. Id. The return to a writ of habeas corpus is to be assumed to be true under Code Civil Procedure (§ 2039), except in so far as its ma- terial allegations are controverted by the traverse. Id. The provision of section 2039, requiring the judge to proceed in a summary way to hear the evidence, has no application unless the material allegations of the return showing jurisdiction are so controverted. Id. Handwriting ; See Evidence. Health ; See Constitutional Law. Section 153 of the Public Health Law as amended in 1895, con- strued. People V. Hawher, 152 N. Y. 234. To justify the quarantining of a person under section 5 of title 12 of the charter of Brooklyn, and section 14 of the Public Health Law, such person must be infected with or exposed to the contagious disease. Matter of Smith, 146 N. Y. 68. Health officer of port of New York has power to use means to protect the public against contagion from infected vessels. Lockwood V. Ba/rHett, 130 N. Y. 340. Expenses to be a lien upon vessels or merchandise must be such charges as are incurred through official action. Id. Usual charges for lighterage and storage are a lien upon the cargo. _ Id. The actual existence of a nuisance gives a board of health juris- diction to act. People ex rel. Copcutt v. Board of Health of Tonkers, 140 KY. L ./ . > Health — Highways, I. 2381 Health — Continued. The owner of the property alleged to be a nuisance may bring an action to restrain its destruction. Id. To escape liability, an order of the court should be obtained to abate a nuisance. Jd. Board of health of Yonkers may maintain an action to collect penalties imposed for violation of enactments against nuisances. Boa/rd of Health of Yonkers v. Oopcutt, 140 IST. Y. 12. Heirs ; See Descent ; Distribution ; Definition ; Executors cmd Adrmnistn^ators. Highways ; See Dedication ; Eminent Domain / Municipal Cor- porations ; Negligence; Railroads. I. Use of Highways. II. Dedication. III. Laying Out, Alteration and Discontintjance. IV. Encroachments. V. Repairs. I. USE OF HIGHWAYS. The placing of an elevated railroad structure in a city street is inconsistent with its character as an open public street, and violates rights of property owners, notwithstanding the title to the soil of the way is in the municipality. Williams v. Broohlyn Elevated B. R. Co., 126 N. Y. 96. "Where the property owner sues for damages the jury is to ascer- tain and award them, and they are to be governed by the evi- dence in determining the amount, and whether substantial or nominal damages only shall be awarded. Id. "Where the right of recovery is limited by the court to six years prior to the commencement of the action, thus commencing at a period Avhen the road was in process of erection, a refusal of the court to charge that no damages were recoverable for any depreciation of rental value of the plaintiff's houses resulting from the contemplated building of the defendant's road is immaterial. Id. The cars of street railways have a preference in the streets. Fenton v. Second Ave. R. R. Co., 126 N. Y. 626. In a suit by an abutting owner against an elevated railway com- pany for an injunction and damages, damages are the diminu- tion of the rental value of the premises. Iline V. N. Y. Elevated R. R. Co., 128 K Y. 571. The right of action for the invasion upon the easements of abut- ting premises by the erection of an elevated railroad in a city 2382 Highways, I. Highways — Continued. street is in the owner of the fee in possession at the time of the construction of the road. EernoGhan v. If. T. Elevated It. R. Co., 128 F. Y. 559. The impairment of the easements by the existence and mainte- nance of the road, suffered during the period in which the prem- ises were in the actual occupation of tenants under the lease, is in the lessor, and not in the lessees. Id. Otherwise, it seems, if the lease was made prior to the erection of the road. Id. The right of such lessor to damages, accruing after his death, goes to his heirs or devisees, and not to his personal representa- tives. Id. The diminished rental value is a basis for awarding damages. Id. It is no defense to an abutter's action for damages against an elevated railway company, by reason of diminished rental value of the property, that the premises during the period complained of were used for unlawful purposes. Lamrence v. Metropolitan Elevated Ry. Co., 126 N. Y. 483. "What use of a road is suiflcient to make it apublic highway. Wahemam, v. Wuhur, 147 N. Y. 657. Owners of lots abutting on a city street are entitled to the bene- fit of the street in front of their premises. Reining v. N. Y., LacTcawamna, etc., R. R. Co., 128 E". Y. 157. The common council of a city cannot, under the guise of altering the grade, appropriate part of a street to the exclusive use of a railroad company. Id. "When authority is conferred upon council of a city by its charter to permit tracks of railroad to be laid in a street, property rights of abutting owners can be invaded. Id. Although the common council of a city authorized the construc- tion of an embankment with perpendicular walls five feet nine inches high for the railroad, plaintiff was entitled to damages. Id. The right of abutting owners is not of that absolute character that they can resist or prevent any and all interference with the street to their detriment, such as a change of grade made under lawful authority, which change requires no compensa- tion. Id. It seems that incidental changes of the grade of streets rendered necessary to accommodate railroad crossings gives no right of action to abutting owners who may sustain injury. Id. The party holding the fee is entitled to damages thereto. McOean v. Met. Elevated Ry. Co., 133 N. Y. 9. "Whether the owner conveying the entire premises could reserve merely the right to sue for an injunction or for damages, — qumre. Id. Highways, I. 2383 Highways — Continued. The legislature has general control over public streets and high- ways, though such power may be delegated. Hoey V. Oilroy, 129 IST. Y. 132. In order to recover judgment the abutting land must have re- ceived some injury. Becker v. Met/ropolitan Elev. By. Co., 131 N. Y. 509. A comparatively slight ratio of increase in value does not indicate damage. Id. Evidence that the value has not proportionally increased may be considered as ascertaining the damage. Id. The difference in appreciation between the property affected and that in the vicinity may be considered in drawing a conclusion as to the amount of damages. Id. The question is, what damage has actually been sustained by loss of easements. Id. The ownership of the fee in a street has a substantial value to the abutting owner. Matter of City of Buffalo, 131 N. Y. 293. An award of substantial damages to the owner of the fee in a street is proper. Id. His ownership is subject only to the public easement thereon as a highway. Id. If the abutting owner does not hold the fee in the land, he has no right to compensation for taking of the street. Id. But he has other easement for which he is entitled to compensar tion. Id. Where two parties have equal right of way it must be exercised by each in a reasonable and careful manner. CNeil V. Bry Bock, East Broadway, etc., B. B. Co., 129 JST. Y. 125. The owner of a leasehold entitled to damages from a railroad. Kearney v. Met. E levated By. Co., 129 E". Y. 76. An abutting owner cannot be deprived of his right to light, air and access without conipensation. Egerer v. N. Y: Cent/ral, etc., B. B. Co., 130 N. Y. 108. An abutting owner may maintain action for damages while the property was in possession of tenants. Mortimer v. Mamliattam, By. Co., 129 N. Y. 81. An abutting owner is not entitled to damages where the prop- erty has mcreased in value after the taking of the easement. Bohm V. Met. Elevated By. Co., 129 N. Y. 676. An abutter's action will not be defeated because he purchased the property after the erection of the railroad. Sterney v. N. Y. EUvated B. B. Co., 129 N. Y. 619. Nor does he lose the right to recover rental damages because the premises were in possession of the tenants. Id. A statement in a petition for grant of land under water for 2384 Highways, I. Highways — Continued. causeway without acceptance by the public authorities does not create a public highway. Iselin v. Sta/rin, 144 N". T. 453. A turnpike upon abandonment by the company becomes a high- way. People ex rel. Keene v. Bd. of Supervisors of Queens Co., 151 N. T. 190. Where the right to erect an elevated railroad was not secured from abutting owners of property its operation is a continu- ing trespass. Thompson v. Mcmhattcm Ry. Co., .130 N". Y. 360. The owner of an abutting lot on a public street is entitled to compensation for deprivation of light, air and access. Hughes v. Met. Elevated By. Co., 130 N. Y. 14. The use of a street by an elevated railroad is inconsistent with the purpose for which city streets are designed. Id. The street rights of an abutting owner need not be established by conveyances in specific forms. Id. Private rights belonging to abutting lots arise by operation of law. . Id. The terra, abutting lot, denotes a lot bounded on the side of a public street. Id. The theory of an action by an abutting owner against an elevated railroad is that of trespass. Moore v. JST. Y. Elev. E. E. Co., 130 N. Y. 523. While the trespass continues defendant is liable to abutting owner for damages occasioned by operation of the road. Id. The liability of defendant is in the nature of an action on the case. Id. The continued invasion of the privacy of the tenants is an action- able injury. Id. What judgment will not warrant punishment for contempt. Ketchum v. iLdwards, 153 N. Y. 534. There is a legal presumption against the grantor intending to reserve to himself the title to tne soil in the highway. Holloway v. Southmayd, 139 IS. Y. 390. The duty of changing the grade of an intersected street occasioned by the construction of a railroad rests upon the railroad com- pany under the General Railroad Act ; rights and liabilities of railroad considered. Eauensteiny. JV. Y., Lachawanna, etc., E. E. Co., 136 IST. Y. 528. When a lot is sold bounded by a street the purchasers have an easement in the street for purposes of access which is a property right. _ Lord v. Atkwis, 138 IST. Y. 184. The grantor, owning to the center of the highway, conveyed by deed running to the side of the highway only, but covering all the easements, privileges, advantages and appurtenances belong- ing to the land, this gave a permanent right to an open way Highways, I, II, III. 2385 Highways — Continued. on so much of the highway as bordered upon the premises conveyed. Holloway v. Southmayd, 139 IST. Y. 390. In an abutter's action against an elevated railroad the defendant is entitled to have the court find that substantially all the damages are consequential. Bookman v. N. Y. Elevated E. B. Co., 13T IST. Y. 302. The right of a telephone company to string its wires along a city street is subordinate to tnat of a street railroad company operating its road thereon. Hudson Biver Telephone Co. v. WatervUet Tv/rnpike and By. Co., 135 N. Y. 393. It is a part of the compact of such telephone company with the state that the maintenance of its lines of communication shall not prevent the adoption by the public of any safe mode of transit. Id. It seems, however, that the railroad company is not at liberty to discharge electricity into the ground in great volume in such manner that owing to the conductive proprieties of the earth it win be conveyed upon adjoining grounds with such force and to such extent as to interfere with the business of an adjoining owner. Id. Consent of the abuting fee owners in a highway must be obtained for the erection of telegraph poles. Eels V. Anrisrioan Telephone., 143 H. Y. 133. The easement in a rural highway is one of^passage only. Id. Distinction between city street and rural highway as to uses pointed out. Id. II. DEDICATION. What does not constitute a dedication of property for a public highway. Mark v. Village of West Troy, 151 N. Y. 453. Eefore land can become a pubhc highway by dedication there must be an acceptance by some formal and unambiguous action of the public authorities or use by the public. People V. Underhill, 144 N. Y. 316. "What is not sufficient to show an acceptance by the village authorities of the highway. Id- Ill. LAYING OUT, ALTERATION AND DISCONTINUANCE. On an appeal from order of commissioners of highways, laying out a highway, what questions are to be considered. People ex rel. Cook v. Ilildreth, 126 N. Y. 360. The construction of a railway embankment in front of plaintiil's premises is a permanent appropriation of the street, and entitles plaintiff to damages for injury to his easements of access. Jeaumev.N. Y., Lackawanna, etc., B.B. C'o., affirmed, 128 N. Y. 623. 150 2386 Highways, III, IV. Highways — Continued. Where defendant, who had mapped out a tract with streets and sold a lot to plaintiff, who graded it to meet the street before it, not then accepted as a public street, afterward lowered the grade of the street, interfering with plaintiff's access to his lot therefrom, held, that the latter had an easement in the street in front of his lot, and was entitled to an injunction and damages. Cunningham v. Fitzgerald, 138 N. Y. 165. "What acts do not afford basis for proceedings to ascertain the adjoining owner's damages under Laws 1883, chapter 113, oc- casioned by an alteration of the grade. Whitmore v. Village of Tarrytown, 137 N. Y. 409. Act of the colonial legislature providing that a surveyor be appointed to lay out a road to the breadth of two rods, which had been laid out four rods wide, though without provision for compulsory taking or compensation to the owner, was mandatory. Blachman v. Riley, 138 JS". Y. 318. The decision of the County Court, upon motion to confirm the decision of commissioners appointed to determine the necessity of a highway, is final only on the questions of necessity and the amount of compensation. Matter of De Oam/p, 151 I^. Y. 557. The capacity of a town to take a grant in fee for highway pur- poses included the power and capacity to take a conveyance of the perpetual right to use a road as a public highway during the winter months only. Hughes v. Bingham,, 135 N. Y. 347. Where such deed has been delivered and accepted, and the road recognized by the proper authorities as one of the highways of the town, it cannot be discontinued by a vote at a town meet- ing. A town meeting has no power to discontinue a highway ; that can be done only by the intervention of the authorities and according to the procedure pointed out in the statute. Id. It is not proper to review by certioran'i an order of the County Court confirming the report of commissioners appointed to lay out a highway. People ex rel. D. L. <& IF. R. R. Co. v. County Court of Onondaga County, 152 N. Y. 214. Written petition of village free-holders is not necessary to the discontinuance of a street. Excelsior Brick Co. v. Village of Ha/verstram, 142 IST. Y. 146. Non-user for six years destroys the right to use a highway as such. Id. lY. ENCROACHMENTS. An action cannot be maintained for injury to public rights with- out showing that private rights have been invaded. Woodruffs. Paddock, 130 K Y. 618. An encroachment must be explicitly designated by a notice to remove. Town of Sardinia v. Butler, 149 N. Y. 506. Highways, IV, V. 2387 Highways — Gontinued. What notice is not suiflcient to compel removal of fence. Id. An action will lie to restrain the owner of a building from unlaw- fully obstructing a sidewalk. Flyrni V. Taylor, 127 IST. Y. 596. In such case, direct proof of peculiar damage is not needed where the circumstances show that the plaintiff sustained special damage. Id. In a populous city, whatever unlawfully turns the tide of travel from the sidewalk directly in front of a retail store to the oppo- site side of the street, is presumed to cause special damage to the proprietor of that store. Id. "Whether a particular use of a street is an unreasonable use or not is a question of fact depending on all circumstances of the case. Id. Obstruction of highway may be abated by an action by one who sustains an injury, and he may also recover damages. Wakeman v. Wilbur, 147 N. T. 657. What is suflBcient to give individual right of action for obstruction of highway. Id. Party notified that his house encroaches on highway upon proof to the contrary may maintain injunction to restrain interference. Flood Y. Van Wormer, 147 ISf. Y. 284. Time in which to commence action to enforce right of an abutting owner to damages for an invasion of his rights in the public streets. Oalway v. Met/ropoUtan Elevated Ey. Co., 128 N". Y. 132. Obstructions upon a highway used for more than forty years may be removed. Jamies v. Samimis, 132 !N. Y. 239. Technical objection to notice of removal is not available. Id, Under colonial statutes the commissioners had power to make the highway. Id. Eef lew of subject of highway by user. Id. V. EEPAIES. Negligence may consist in omission to erect barriers as in leaving bed of highway defective. Bryamt v. Town of Randolph, 133 N. Y. 70. Commissioners are not relieved from care and control of ap- proaches to railroad crossing. Id. A town is liable for injuries resulting from a defective highway. Id. Where an act for the construction of sewers for one town pro- vided for a trunk sewer through an avenue of another town, which was not benefited by the improvement, the consent of the owners of the land through which it passed must be gained or the title thereto gained by legal proceedings. The prin- 2388 Highways, V — Homicide. Highways — Continued. ciples justifying the use of streets for sewers without compen- sation to adjacent owners did not apply. Van Brimt v. Town of Flaibush, 128 JST. Y. 50. Actual notice of a defect in the highway must come to the com- missioners to render them liable. Lcme Y. Town of Hcmcook, 142 IST. T. 510. Failure to recover against the commissioners bars a recovery against the town. Id. The provision of Laws 1881, chapter 700, subjecting a town to lia- bility for injuries by reason of defective highways, applies to the case of an obstruction placed in the highways as well as to acts of physical disturbance or injury to the bed of the road- way. Whitney v. Town of Ticonderoga, 127 N. Y. 40. Homicide ; See Orinrnud Law. Guilt cannot be established beyond a reasonable doubt on a trial for murder by testimony of a witness who is irresponsible either from mental or moral defects. People v. Ledmon, 153 N. Y. 10. Allegations in a common-law action in an indictment for murder, held sufficient to sustain a conviction for murder in the first degree. People v. Constamtvno, 153 N. Y. 24. It is not error for the court, when charging on the question of deliberation and premeditation, to illustrate a minute of time by his watch. Id. The fact that jury in charge of officers attended church is not ground for reversal. Id. Facts competent on the question of premeditation and deliberation. People V. Scott, 153 N. Y. 40. What may be proof on a trial for murder in the first degree to establish motive. Id. Evidence sufficient to corroborate a confession of homicide con- sidered. People V. Hoch, 150 N. Y. 291. When evidence of the mental condition of defendant at the time of trial may be introduced. Id. What is sufficient evidence to corroborate testimony of an accora- Slice. People v. Mayhew, 150 N. Y. 346. en the question of motive is unimportant. People V. Feigenbamn, 148 N. Y. 636. Evidence sufficient to sustain a conviction of murder in the first degree. People v. Youngs, 151 N. Y. 210. Whether the killing was deliberate and premeditated is always a question for the jury in the light of the facts. People V. Conroy, 153 N". Y. 174. What sudden transport of passion excited by words of contempt does not constitute murder in the first degree. People V. jBarheri, 149 N. Y. 256. Homicide. 238& Homicide — Continued. Evidence of the relation of parties is admissible on the subject of deliberation. Id. Though killing was in a fit of passion it may be murder in the first degree when accompanied by deliberation. People V. TuczTcewitz, 149 N". Y. 240. It is admissible to show premises where homicide occurred by photograph. People v. Pustolka, 149 N. Y. 5T0. Wnat are not leading questions put to a witness as to actions of defendant from which insanity might be inferred. People V. Nino, 149 IST. Y. 317. "When charged that defendant must clearly prove insanity is erroneous. Ici. It is prejudicial error for a court to state to expert that there has been no testimony of physicians as to delusions. Id. On trial of an indictment for murder what evidence of defend- ant's relations with other Avomen are not admissible. People y. Strait, 148 N. Y. 566. When it would be prejudicial error against defendant to allow witness who has testified that defendant was sick at the time to state the character of his disease. People V. Corey, 148 E". Y. 476. It is erroneous not to charge clearly the rule in relation to the consideration of defendant's intoxication. Id. The Court of Appeals must regard all valid exceptions taken by the defendant. Id. Statements to jury by witness in absence of defendant is ground for new trial. People v. Oallo, 149 N. Y. 106. Facts sufficient to sustain a conviction of murder in the first degree. People v. Hampton, 144 N. Y. 639. Evidence sufficient to sustain a conviction of murder in the first degree. People v. Wilson, 145 N. Y. 628. Testimony that murdered man said, " There go the burglars," is admissible as bearing upon the opportunity the suspected men had to enter into an agreement to resist arrest. Id. Evidence that the suspected persons were brothers is also admis- sible as bearing on the issue of agreement between them to effect escape together. Id. Where the parties to a quarrel were separated and one of them returns with a pistol and shoots the other, the act is murder. People V. Kerrigan, 147 N. Y. 210. A postponement of a trial for murder is properly denied where it is not asked on the ground of absence of witnesses. People V. Shea, 147 N. Y. 78. What is competent on the question of intent and deliberation. Id. A conviction of murder in the first degree will not be reversed by the Court of Appeals where the finding is not clearly against the weight of evidence. Id. 2390 Homicide. Homicide — Continued. The killing of one person in an attempt to shoot another is murder. People v. Mills, 143 N. Y. 383. Where circumstantial evidence is sulficient, conviction of murder will be sustained. People v. Johnson, 140 JST. Y. 350. ' Conviction of murder in first degree in killing an officer while under arrest without a warrant will be sustained upon sufficient evidence. People v. Wilson, 141 IST. Y. 185. The effect of intoxication on the question of premeditation is for the jury. People v. Leonardi, 143 JST. Y. 360. "When a will made by the wife prior to the marriage, giving her property to her husband, is admissible on the question of motive. People V. Buchanan, 145 1^. Y. 1. A deed made by the wife to defendant after marriage and his conveyance of the property are admissible. Id. Declarations of defendant showing hostile feelings toward his wife are relevant on the question of motive. Id. When a refusal to strike out all evidence on one count is proper. Id. JReply to defendant's counsel by the court that, " If the facts are against the defendant, that is not my fault ; it is unfortunate, but I cannot help it," unobjectionable. People v. Leach, 146 N. Y. 392. An appeal direct to the United States Supreme Court from the decision of a District Court judge at chambers denying a motion for habeas corpus is unauthorized. People v. Buchanan, 146 N. Y. 264. A reprieve by the governor to a day certain, in a capital case, authorizes the execution of sentence on that day. Id. "Where the time fixed by the reprieve has passed and the sentence remains unexecuted but in full force, the defendant should be brought before the court to have a date of execution fixed. Td.- Evidence insufficient to sustain a defense of irresponsibility on account of epilepsy. , People v. Burgess, 153 IST. Y.'561. One who is not an expert may testify that a substance is blood. Id. When it is apparent that no harm resulted to defendant on ad- mission of incompetency, evidence is not a ground for reversal in a capital case. Id. Where the accused was indicted for killing his wife, and it ap- peared that he killed her and a man who was with her, the court instructed the jury that if he intended to kill the man and killed her, he was as much guilty of murder as if he intended to kill her, which was excepted to, as the indictment charged only intent to kill the wife, held, no error. People V. Osmond, 138 IST. Y. 80. The prosecution on a trial for murder is not bound to prove motive. People V. Johnson, 139 I^T. Y. 358. Homicide — Husband and Wipe, I. 2391 Homicide — Continued. "What proof must be given to justify the taking of life in self- defense. Id. SuiRciency of evidence to justify conviction under an indictment for murder. Jd. Evidence of a circumstantial character to sustain a conviction of murder by poisoning, considered and held sufficient. People V. Harris, 136 JST. Y. 423. Judgment on conviction of murder in the first degree, affirmed, the jury discrediting the testimony of the accused. People V. Bold, 138 N. Y. 616. Judgment of conviction of murder in the first degree, the victim being the wife of the accused, affirmed. People V. Geogham, 138 N.Y. 677. Yerdict of conviction of murder in the first degree of defendant who killed his wife sustained on review of circumstantial evi- dence. People V. Hamilton, 137 N. Y. 531. Yerdict of conviction for murder sustained on review of the evi- dence, the defense being justification. People V. Fitsthum, 137 N. Y. 581. Conviction of murder in the first degree for killing a woman, where the accused was the only witness in his own behalf, sus- tained on the evidence. People v. Deljmo, 139 ]S". Y. 625. Conviction of murder, based in part on testimony of alleged ac- complice and alleged confession of defendant, sustained on review of the evidence. People v. McGuira, 135 N. Y. 639. Evidence of accused sufficient to justify conviction of man- slaughter in the first degree. People V. Webster, affirmed in 139 IST. Y. 73. A charge that the jury might find intent to kill from the nature of the weapon and the manner of its use, in connection with an instruction that they should not convict if they had any reason- able doubt of such intent, is free from error. Id. The rule as to the obligation to avoid the necessity of taking human life, stated. Id. Husband and Wife. See Cv/rtesy ; Dimorce ; Dower; Mamage; Ma/rned Woman,. I. Joint Peopeett. II. CoNTEACTS Between. III. Husband's Eights and Liabilities. lY. Wife's Rights and Disabilities. Y. Hee Sepaeate Estate. I. JOINT PROPERTY. Tenancy by the entirety is severed by divorce and each takes a share as tenant in common. Stelz v. SohrecTc, 128 ]Sr. Y. 263. 2392 Husband and Wife, I, II, III. Husband and Wife — Continued. Under a conveyance to husband and wife without restriction, they take as tenants by the entirety. Id. A tenancy by the entirety, originated in the marital relation, resembles a joint tenancy in that there is a right of survivor- ship attached to both, but is not a joint tenancy in substance or form. Id. Where the intention is plainly expressed, may hold as tenants in common or as joint tenants. JoSs v. Fey, 129 N. T. lY. The wife's interest is alienable by her. Id. Her grantee may maintain an action for partition. Id. The intention of the grantor as appearing in the instrument con- trols. Miner v. Brown, 133 IST. Y. 308. If the grant is made without any words characterizing the estate, each shall take by entirety. Id. A devise to husband and wife for their use, benefit and support renders them tenants in common. Id. Where husband and wife each contribute from their separate means to a joint investment in a bond and mortgage taken in the names of both, the inference is that they become tenants in common. Matter of Alhrecht, 136 N. Y. 91. It seems that the relation of tenants by the entirety can only exist where there is a conveyance of a vested interest in or title to real property. Id. While a husband and wife take as tenants by the entirety under a deed to both, they are tenants in common or joint tenants of the use while the question of survivorship is in abeyance. Hiles V. Fisher, 144 IST. Y. 306. A mortgage executed by a husband who holds by the entirety with his wife is eflfectual to cover his interest. Id. II. CONTRACTS BETWEEN. In an action by a wife against the personal representatives of her deceased husband, a promise to repay her must be shown to allow her to recover for moneys paid by her for support. Nostramd v. Ditmis, 127 N. Y. 355. A contract for employment made prior to 1892 is extinguished by the marriage of the parties. Matter of Gallister, 153 N. Y. 294. A bond given by a husband to his wife, without consideration, as a provision for her support and as a gift, is not enforceable against his estate. Matter of James, 146 N. Y. 78. An ante-nuptial agreement cutting off dower without an equiva- lent therefor is void. Graham v. Graham, 143 N. Y. 573. III. HUSBAND'S EIGHTS AND LIABILITIES. A husband acting only as an agent of his wife is not Liable for Husband and Wife, III, IV. 2393 Husband and Wiie—Oontinued. her failure to lease premises thougK he has negotiated the lease. Bear v. Bonynge, 147 E". Y. 393. "When a judgment recovered by a married woman in an action to which her husband was not a party, reversed on appeal, is not a bar to a subsequent action by the husband upon such claim. Stamp V. FramMin, 144 N. T. 60Y. An authority given by a husband that payment of a claim for board may be made to his wife does not vest in her legal title to the claim. Id. When an action of ejectment will not lie against the husband of a tenant with whom he lives on the land, and who claims pos- session of it. Danihee v. Hyatt, 151 N. Y. 493. Fraudulent representations inducing party to marry is basis for action for loss of consortium. Kvjek V. Goldman, 150 N. Y. 176. IV. WIFE'S EIGHTS AND DISABILITIES. A wife is entitled to support from income of trust which was for the support of husband only. Wetmore v. Wetmore, 149 N. Y. 520. A married woman is presumptively not chargeable with an ar- rangement made by her husband in her absence in respect to the purpose for which a mortgage executed by her is given. Pa/rker v. Collins, 127 ISL Y. 185. The right of a wife to insure her husband's life for her own benefit, since it is not property, does not prevent equity from following insurance moneys and charging them with a trust in favor of one whose moneys were used in the payment of premiums. Holmes v. Oilman, 138 JST. Y. 369. The wife may take the legal title to personal property by gift from her husband and maintain an action thereon. FruhoMfY. Bendheim, 127 N. Y. 587. Such gift is valid although the propertj' consists of a contract for the purchase of land. Id. Where husband and wife are seized of an estate as tenants by an entirety, and when in a proceeding to condemn a right of way the husband alone is served, the wife may restrain the construc- tion of a sewer across the propertv. Grosser v. City of Rochester, 148 IST. Y. 235. Under the statutes of this state a married woman has such free- dom of control over her own real property that her husband cannot, without her consent and against her will, maintain a vicious domestic animal thereon, and she is liable for injuries committed by animal owned by the husband. QuUty V. Battie, 135 E". Y. 201. Where the husband is united in the action against the wife for damages merely on the ground of his marital liability and 2394 Husband and Wife, IV, V— Incumbrances. Husband and Wife — Continued. not upon any allegation of his own ownership or knowledge of the vicious propensities, the action cannot be sustained against him. Id. V. HER SEPARATE ESTATE. Only the common-law status of married women has been abrogated to the extent set forth by statute. Porter v. Dimn, 131 N. Y. 314. Where the services of wife are rendered at husband's expense, he is entitled to recover for such services. Id. Unless it is liable, the property of the wife cannot be seized upon execution against the husband. Edwards v. Wood, 131 JST. Y. 850. There must be a surrender by a wife to her husband of some interest or dominion over her real property by some act or agreement on her part expressed or implied, which wUl take from her at least some right or incident ordinarily pertaining to the absolute ownership of real estate. Mygatt v. Coe, 147 N. Y. 456. That which a married woman acquires by her trade, services or business, carried or performed on her separate account, is her own separate property. Blaechinska v. Howwrd Mission <& Home for Little Wan- derers, 130 ]Sr. Y. 497. The statute does not apply to labor done by the wife for the hus- band in his household. Id. Where their joint earnings are used to support the family, if there is no special contract giving her the proceeds of her labor they belong to the husband. Id. When she works for him upon his farm she is legally entitled to no compensation. Id. Under Laws of 1884, chapter 381, a married woman may enter into contracts with any one except her husband. Id. Previously she could not make such contracts unless she had a separate estate or business. Id. Under act of 1860, a wife could contract with her husband in relation to her separate estate. Id. The enabling statutes do not relieve a wife of rendering services to her husband. Id. I. Imprisonment; See Arrest; J3aU; Conternpi; CriMiinal Law ; False Imprisonment. Incumbrances ; See Cloud on Title ; Covenants ; Deeds / Fore- closwre. Indemnity — Indictment. 2395 Indemnity ; See Bonds ; Injunction ; Replevin • Sheriff. When notes specify that bonds were deposited as security and no bonds were given, an indorser is not discharged because such bonds were not deposited. Nassau v. Cam^SeS, MTIST. Y. 694. An oral promise to indemnify a person for becoming indorser on a note of a third person is not within the statute of frauds. Jones V. Bacon, 145 N. Y. 446. An indemnitor of an indorser of the note of a third person is dis- charged from liability on his agreement by the execution of the indorser of a release to the maker of the note. Id. "Where a sheri£f who has taken a bond of indemnity, by collusion deprives the indemnitors of the opportunity to present and have determined in the ordinary course of legal proceedings his liability, when sued by third persons for an act to which the in- demnity extends, and in bad faith prevents the indemnitors from putting in a defense interposed in good faith and not frivolous, he cannot avail himself of a judgment obtained in that action as a ground of recovery on the bond. WKeeler v. Sweet, IST N. Y. 435. Otherwise, it seems, in the absence of fraud or collusion, though the indemnitors were not parties in fact to the litigation, and even though they had no notice of the action. Id. Indians ; See Constitutional Law. Eight of state to purchase Indian land under Constitution de- clared and title of purchaser of such land sustained. Seneca Nation of Indians v. Christie, 126 N. Y. 122. The provision in section 12 of the act of Congress of March 30, 1802 (Indian Intercourse act), construed and held not to require proclamation by Federal authorities. Id. The purpose of the proviso was to establish a Federal supervision over contracts for the extinguishment of Indian title to lands. Id. What will amount to a confirmation of the sale and conveyance under subsequent act of Congress, and a waiver of restrictions imposed by former acts of Congress, if any such existed. Id. Indictment ; See Criminal Lam. When court has power to refuse to strike out previous acts in an indictment and retain them for reference. People V. McLaughlin, 150 IST. Y. 365. An indictment is not demurrable on the ground that it charged two crimes, viz. : - forging a check and intent to defraud a person by offering such a forged check. Peoples. AltmaM,\Ani&.X.m. What indictment for perjury in making and filing an affidavit must be alleged and what must be proved on trial. People v. WilUams, 149 IST. Y. 1. 2396 Indictment. Indictment — Continued. An indictment for false pretenses is sufficient if it states and negatives one false pretense. PeopU V. PecTcens, 153 N. T. 576. An indictment for obtaining a deed by false pretenses which gives a description of the premises and states the consideration, the names of the grantor and grantee and the value of the deed, sets out the deed sufficiently. Id. A statement that the land was of a certain value is a sufficient allegation of the value of the deed. Id. An indictment may, notwithstanding section 29 of the Penal Code, state facts. Id. The principal fact must be charged in the indictment. Peoj>le V. Allow, 140 K T. 130. The forging and uttering of the same instrument may be charged in separate counts in an indictment. People V. Alder, 140 IST. T. 331. "Where an indictment charges the presentation of false proofs of loss knowingly it is sufficient. People v. Spiegel, 143 IN . Y. lOT. Surplusage no more vitiates an indictment than a pleading in a civil action. People v. Lawrence, 137 !N". Y. 517. It seems that an indictment for larceny under Penal Code (§ 528) is sufficient, if without setting forth the false pretenses it charges felony in the form used in common-law indictments. Id. It seems that under Code Criminal Procedure (§§ 278, 279), re- quiring an indictment to charge but one crime and but in one form, the two offenses of forgery and uttering the forged in- strument cannot be properly united in one count in the same in- dictment. People V. Tower, 135 N. T. 457. The proper and only remedy for such misjoinder is by demurrer. Id. Allegations in a common-law action in an indictment for murder, held sufficient to sustain a conviction for murder in the first degree. People v. Constcmbvrw, 153 N. Y. 24. "Within what time an indictment for seduction may be filed. People V. Nelson, 153 N. Y. 90. "When separate counts for burglary, larceny and receiving stolen goods mav be joined in one indictment. People V. Wilson, 151 N. Y. 403. An indictment for libel is defective which fails to allege the man- ner of publications. People v. Stark, 136 N. Y. 538. It seems that if the libel charged consisted of a newspaper pub- lication, it would be sufficient to allege that it was published in a designated paper having a circulation in the county in which the indictment is found. Id. An indictment for murder in the common-law form is proper. People V. Osmond, 138 IST. Y. 80. Indictment — Infant. 2397 Indictment — Continued. An indiptment charging a crime in different counts that it was committed in a different manner, not demurrable under Code Criminal Procedure (§ 279). People V. Ilioe, affirmed on opinion, 128 N. Y. 649. What indictment which stated the acts constituting the crime is not demurrable for failure to conform to Code Criminal Procedure (§§ 275, 276). Id. An indictment for grand larceny held sufficient. Id. The rules that an indictment is good as against a general demurrer if any count be good, applied. Id. Indorsement ; See Bills and Notes. Infant ; See Gua/rdian am,d Ward ; Guardian ad Litem, / Parent and Child. Property of infant remainderman cannot be mortgaged by trustee by order of court. Losey v. Stanley, 147 N. Y. 560. Such mortgage may be collaterally assailed for want of jurisdic- tion in an action to foreclose it. Id. A girl nine and a half years old cannot be held as a matter of law non sui juris. MoGrell V. Buffalo Ojfice Building Co., 16B N. Y. 265. "When service of process on an infant defendant is not essential to the jurisdiction of a Federal court. Sloane v. Martin, 145 N. Y. 524. "Where the guardian of infants acquiesces in the continued occupa- tion of their premises by their mother without any agreement as to rent, the mother is not liable for use and occupation. Zami V. Zamh, 146 N. Y. 317. An infant may become interested in business as a general partner. Conti>iental Nat. Bh. v. Strauss, 137 N. Y. 148. Notice in some form to an infant is essential to confer jurisdiction upon a court to bind his property ; the legislature may pre- scribe that it be constructive. Smith v. Peid, 134 N. Y. 568. "When court will not acquire jurisdiction of an infant by service of process on a guardian ad litem under Code Civil Procedure (§ 473). Id. A special act authorizing the sale of contingent interests in real property of certain infants and persons not in being is constitu- tional. Field V. Pessar, 131 JST. Y. 184. The surety of a special guardian to sell interest of infant's devisees is liable for the misappropriation of such property. Long v. Long, 142 K Y. 545. A special guardian for sale of infant's real estate is subject only to the jurisdiction appointing him. la. The acceptance of the accounts of general guardian is not neces- sarily a ratification of those of a special guardian. Id. 2398 Injunction, I. Injunction ; See Equity ; Taxpayer's Action / omd for imgwiO' Uons in particular actions, see appropriate titles. I. Issuing and Effect. II. Eesteaining Proceedings at Law. III. Against Coepoeations and Public Offices. lY. In Othee Cases. V. Peactice and Undeetaking. I. ISSUING AND EFFECT. Mere apprehension of some future wrongful acts which may be injurious to the plaintiff is not sufficient ground for a final injunction. Reynolds v. Emerett, IM JST. Y. 189. Where the acts complained of have ceased prior to the trial a denial of a final injunction is discretionary. Id. Injury to business by reason of obstruction on highway ground for injunction to restrain nuisance. Buchhoh V. N. Y., L. E. & W. B. R. Co., 148 N. Y. 640. Party notified that his house entrenches on highway, upon proof to the contrary may maintain injunction to restrain interference. I