text:
    ADELE MILLER, Respondent, v. MONTGOMERY R. HOOPER, Appellant.

      Account stated — charge for services — assent to — presumption as to similar charges for subsequent services.

    The fact that a person assents to a charge for a certain number of hours’ services for the first year, does not create an implied obligation on his part to pay twice as much the second year, because the services were performed during double the number of hours in the latter.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.
    The plaintiff was a teacher of the French language in the defendant’s school from September, 1868, until July, 1873. During the first year she wás employed two hours a week for the sum of $200. The second year she was employed seven hours and a half a week, and after that fifteen hours a week. No agreement was made as to the rate of compensation after the first year. Money was paid to the plaintiff by the defendant a-t various times on account, and at the termination of the employment, the plaintiff rendered an account charging $500 for her services the second year, her services thereafter being charged on the account, but no price carried out for them.
    The defendant retained the account rendered without objection.

      Matt. H. Ellis, for the appellant.

      S. H. Thayer, for the respondent.
   Daniels, J.:

The plaintiff, taught the French language in the school of the defendant. From September, 1868, to September, 1869, she devoted two hours a week to that object during the continuance of the school, for the salary of $200. From September, 1869, to September, 1870, she devoted seven hours and a half each week to the same object; and after that, until July, 1873, she taught French in his school fifteen hours each week. In the month of June, 1871, she rendered, an account to the defendant, in which she charged $500 for her services the second year, when she taught seven and a half hours each week. The services for the year ending September, 1871, were charged in the account, but no price carried out for them. The defendant retained the account without objection, and the referee held that he was concluded by it as an account stated ; not only as to the salary mentioned in it, but at and after that rate for all the services subsequently performed by the plaintiff. That as lie had accepted the charge of $500 for seven and a half hours’ services each week, it followed from that circumstance, that he had become obligated to pay $1,000 for fifteen hours’ similar services each week during the following years ; and, accordingly, he.rejected evidence offered by the defendant to prove the actual value of the plaintiff’s services while she taught the fifteen hours each week; and these rulings are now relied upon by the respondent as correct, because tenants holding over after the expiration of their terms, and persons performing the same services after the expiration of the contract of hiring, are presumed to continue liable to pay the same amount of rent, and entitled to the same compensation, as that provided for by their previously existing agreements. To that extent the rule seems to be reasonably well settled. (Bradley v. Covel, 1 Cow., 319; Evertsen v. Sawyer, 2 Wend., 507; Huntingdon v. Claflin, 38 N. Y., 182.) But it never lias been extended farther than that, and it does not seem capable of being, upon any sound or logical principle of deduction. Because a person may be willing to pay a certain price for a certain number of hours’ services during any given period of time, it cannot be presumed that he intends to assent to payment of double that compensation for double the number of hours. There was nothing in the account rendered from which any such conclusion could be reasonably drawn, for the plaintiff made no such charge whatever in it. Her charges did not extend beyond the second year. The charge for them was designedly omitted for the third; and that circumstance indicated the intention to leave the compensation, after the second year, open for future adjustment; that was the plain inference from this incomplete condition of this account. The courts have concluded parties receiving accounts containing charges made against them, and retaining them without objection. to tlie extent of the charges made by them. But they have never gone so far as to conclude them upon the same basis in their future transactions, forming no part of tlie charges made in the account rendered. No presumption ai’ose out of the circumstances that the defendant by assenting to the charges of $200 for the first year, and $500 for the second, undertook to pay $1,000 for each of the other years, because the services were doubled in quantity. No agreement of that nature can be assumed from the facts appearing in this case. The services after the second year were rendered without any other contract than that which the law implies from the acts of the parties; and that is, that the plaintiff should receive their reasonable value. (Moore v. Moore, 21 How., 211, 223; Williams v. Glenny, 16 N. Y., 389.) The judgment should be reversed and a new trial ordered, with costs to abide the event.

i

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


source: Caselaw Access Project

author: Daniels, J.: Davis, P. J., Brady, J.:

license: Public Domain

text:
    SARAH H. LUCE and others, Appellants, v. MARY DUNHAM and others, Respondents.

      Will — construction of — Heir, next of Mn — JSxpressions, how construed.

    After making certain devises and bequests to his widow and sisters, the testator directed that all the rest, residue and remainder of his estate should be divided equally among his heirs and next of kin, in the same manner as it would be by the laws of the State-of New York, had he died intestate. Held, that the testator intended the residue of his estate to be distributed under the laws of the State of New York, in the same manner as if he had died intestate, and that the -widow was intended to be included in the words heirs and next of kin, and entitled, tinder this direction, to participate in the distribution.
    , Appeal from a surrogate’s decree for tbe settlement and distribution of a testator’s estate.
    The testator had no lineal descendants, but left him surviving his widow, one sister of tlie whole blood and three half sisters. His estate consisted principally of ships, he leaving no real estate except liis homestead and burial lot, which were devised to his wife. After certain bequests to his wife and sisters, and certain directions as to the management of his estate, the following paragraph occurs in the will: “All the rest, residue and remainder of my estate, real and personal, present and hereafter to be acquired, and wherever situated, I give, devise and bequeath, and do desire and will that the same shall be divided among my heirs and next of kin, in the same manner as it would be by the laws of the State of New York had I died intestate.”

      S. P. Nash, for the appellant Sarah II. Luce.

      Rodman D. Dawson, Jr., for the appellants Crowell and Jer' negan.

      Rosier & Thompson, for the respondent Mary Dunham.

      Charles N. Judson, for the respondent Stephen W. Carey, as executor, etc.
   Daniels, J.:

That portion of the decree from which the appeal has been taken provided for the distribution of the residue of the estate of the testator.’ He left him surviving his widow, one sister and three half sisters. The half sisters alone appeal from the decree. The testator made his will during his last illness, and near the period of his own decease. He then owned a household and a cemetery burial lot. The rest of his estate consisted of personal property. He devised his homestead and bequeathed the personal property upon it to his widow, and also gave her the sum of $100,000, to have and to hold to her heirs and assigns forever, as her sole and separate estate. He then gave his sister — whom he had previously provided for while he was in health — the sum of $10,000, and to each of his half sisters he gave the sum of $5,000 ; and he disposed of the residue of his estate in the following words: “All the rest, residue and remainder of my estate, real and personal, present and hereafter to be acquired, and wherever situated, I give, devise and bequeath, and do devise and will that the same shall he divided among my heirs and next of kin in the same manner as it would be by the laws of the State of New York had I died intestate.”

The surrogate held that the widow was entitled, under this direction, to participate in the distribution of the residue, the same as though the testator had died intestate; and that determination only is objected to as erroneous by the counsel for the appellants. The testator’s widow is now of the age of seventy years and upward. One of his half sisters is over eighty years of age, another fifty, and the other forty-five,and his sister is over seventy years of age. He left his home at the age of about fourteen years and became a seafaring man. ’When he married, his wife became the companion of his voyages, and their relations through life appear to have been cordial, confidential and affectionate. He left his property consisting mostly of shipping, in the hands of his executors and executrix, to be used and employed, according to their judgment and discretion, for the best interests of his estate, and as long as such interests should be promoted by their management. In the mean while he declared that his wife should “draw from the earnings of such ships and vessels the share or portion which her interests under this my last will and testament shall bear to the whole net earnings.” These are all the provisions in the will which it can be necessary to consider for the purpose of ascertaining the design of the testator as to the disposition which should be made of the residue of his estate. The fact that he left no real estate undisposed of by the specific terms of the will, except the cemetery lot, is sufficient to render it quite evident that the disposition of that species of property could not have been the substantial object of the residuary clause. And the great improbability, from the state of his physical health when the will was executed, that he would ever acquire any other property of that description, very much confirms this conclusion. The reference made to his real estate then owned, or afterward to be acquired by the testator, must have been for these reasons mere formalities of expression, rather than designed as substantial dispositions of property. The state of his property and the near approach of his dissolution combine to exclude every other supposition.

What he designed chiefly to accomplish by the residuary clause was the disposition of the remainder of his personal estate; and he adopted the words, “ heirs and next of kin ” as equally appropriate to the expression of his purpose concerning'it. That is evident from the connection in. which they were used by him, as well as from the condition of his estate and his bodily health. The understanding appears to have been that they should refer to and indicate the same class of persons. He did not declare that his heirs should receive his real estate and his next of kin the personalty, but that all should go to his heirs and next of kin in the same manner ; and by combining both terms it was his object to declare that whoever might fall within the .designation of heirs, as he used that term, should become equal participants in the residue of all his property as next of kin. The term was directly applied to the personal estate, and that was within its import as it was made use of by the testator. His widow was probably understood by him to be an heir and as such intended to be included. That was indicated by the reference made to her rights under the will, for the purpose of regulating the amount she could draw from his estate while it remained undivided. If she was to be restrained to the legacy of $100,000, given her in the first place, that, of itself, was but one interest, and there is good reason, therefore, for supposing that it would afterward have been so referred to for the purpose of ascertaining the amount of the earnings of the estate she might be entitled to receive. But the testator gave expression to no such purpose. On the contrary, he declared that she should receive tliát portion of the earnings which her interests under the will bore to the whole net earnings. This word interests ” seems to have been designedly and intelligently used in this connection, after the legacy and the distribution of the residue were provided for, showing his understanding that she would take the share allotted by law to the widow in the residue. Without that share the word was improper and inappropriate, for then she would have but a single interest in the personal estate from which the earnings were to be derived. But with the right to that share, the reference to her “interests” under the will was clear and intelligible, and it could not be made so in any other way. It is a circumstance indicating the testator’s understanding that his widow was not restricted by his will to a single interest in the personal estate, as she would be if she were excluded from the right of participating in the final residue.

Standing alone it may be doubtful under the authorities how far the term “heirs” should be extended in its operation upon the distribution of personal estate. The English cases are collected and discussed in volumes 1, 2, part 2 [N. S.], of the Jurist for 1855, 1856, 211-213, and the conclusion stated, that the term probably would not include the widow. But that is not consistent with all the authorities decided by the courts of equity in that country. The case of Lord, v. Smith, reported in volume 2, part 1 of the Jurist for 1850, page 344, which was decided upon an examination of the authorities, was made upon a different consideration of the law. And that vms also the view taken in Croom v. Herring (4 Hawk [N. C.], 393), and Eddings v. Long (10 Alabama, 203), in which it was held that the term heir, when applied to the distribution of personal estate, inclued the widow. Gittings v. McDermott (2 Mylne & K., 69), also sustains that conclusion. Authorities have been cited and relied upon by the counsel for the appellants sustaining the doubt already expressed. Most notably among these is the case of Garrich v. Camden (14 Vesey, 372). Bnt even that case concedes what must without doubt be the law, that the construction must be consonant to what, from the whole will, appears to have been the intention of the testator.

The clause of the will making the disposition of the residue, has also expressed his purpose with reasonable clearness. * And that was done in the general terms, declaring that the entire residue of his personal estate should be divided among the persons who could be considered his heirs and next of kin for that purpose, under the laws of the State of New York. It was an express reference of the disposition which should be made to the provisions which the statute contained upon that subject. And that was done to relieve the direction from the ambiguity which might have existed without it. The object was to give conciseness and certainty to the .terms which, without such reference, might possibly prove ambiguous in' their signification. And it showed that the testator intended that the residue of his estate should be disposed of. according to the statute governing the case of intestacy. And that could only be done by giving the widow her shave, and dividing the remainder between the next of kin properly so called. They could only take it, as the testator directed they should, “ in the same manner ” that they would by the laws of the State, if he had died intestate, by dividing it in that way. The estate could not otherwise be distributed in the manner provided for by the laws he mentioned. And the reference must have been made to them, for the purpose of having them prevail over the distribution of the property. The substance of the direction, was, that the laws of the State should declare the disposition which should be made of the residue. That construction is supported by the language made use of by the testator, by the general intent controlling the specific disposition of property made by him, to the persons whom he designed should participate in his estate, and by the direction, that the portion of the earnings of his property which the widow should receive, while the estate remained undivided, should be apportioned to her interests instead of being limited to the single interest created by the legacy of $100,000. His first object was to give the legacies mentioned, to his widow, his sister, and his three half sisters. That was the primary purpose, and they appear to have been the only objects of his testamentary solicitude. Ilis widow first, his sister next, and his half sisters afterward. The first design was to provide in express terms for them, by making specific bequests in their favor. And no good reason exists for supposing that he intended any other departure from that general plan, in the distribution of the residue of his estate, than such as might be made by rendering it dependent upon the laws of the State applicable to cases of intestacy. The object was to leave that to the disposition which the laws would make of it. By the papers accompanying the brief presen ted by the respondent’s counsel, this precise point appears to have been decided in this manner by the General Term of the third district, in 1863, in the unreported case of Enickerbodker v. Seymour. The general inclination of the authorities is in the same direction. Bor that, as well as the other reasons assigned, and those mentioned by the surrogate in his opinion, the will was rightly construed. No other objection has been taken to the decree, and it should therefore be affirmed with costs to the several parties represented, to be paid by the executrix and executor out of the estate.

Davis, P. J., Brady, J.:

We think by the residuary clause the testator meant to declare his intentions, that the residue of his estate should be distributed under the laws of the State of New York, as though he had died intestate. He intended that his executors should perform that duty, and in using the words “heirs and next-of kin,” he meant to include everyone entitled to distribution in case of intestacy. We concur, therefore, in the affirmance of the decree.

Decree affirmed with costs to the several parties, to be paid by the executrix and executor out of the estate.


author: Daniels, J.:

text:
    MARY A. MILLER, Appellant, v. JAMES E. MILLER and others, Respondents.

      Execution — issuing of, to collect alimony — Trust fund — income of — Creditor’s suit — when proper.

    All judgments for tlie payment of money, including judgments for tlie payment of alimony, can be enforced by execution. The remedy by execution must be exhausted upon all judgments for the recovery of money, both in legal and equitable actions, before a creditor’s suit can be instituted.
    Appeal from an order denying a motion for an injunction restraining the defendant James E. Miller from receiving or dis- - posing of the income of a trust fund to which he was entitled as . beneficiary, and of which the other defendants were the trustees.

      Estes & Barnard, for the appellant.

      G. W. H. Zeglio, for the respondents.
   Daniels, J.:

The plaintiff recovered a judgment against her husband for a divorce, under which she was adjudged entitled to certain specified amounts from him by way of alimony. Those amounts he failed to pay, and she has brought this action to recover them from the income of a trust created in his favor, by the will of his deceased father. The judgment in her favor was recovered in the Court-of Common Pleas of the county of New York, and since its recovery the defendant in the action has removed to Long Island. But no transcript of the judgment has ever been filed, as it might have been, in the office of the clerk of the county in which he has resided, and no execution lias been issued upon it. Without doing either the plaintiff instituted this action to recover the sums allowed to hei by way of alimony out of the income of a trust created in his favor, and her application for an injunction restraining the payment of the income of the trust to him was opposed for those reasons. The counsel for the plaintiff insists that no execution could have been issued upon the judgment, and that the present action may for that reason be maintained without it. In that position he seems to be in error, for by the provisions of the Code, all judgments for the payment of money may be enforced by execution. The enactment upon this subject is exceedingly broad, including all judgmen ts in both legal and equitable actions which require the payment of money. (Code, § 285.) And a judgment for the recovery of specific sums by way of alimony is clearly included in those terms. No difficulty exists in the way of docketing such a judgment, nor in issuing execution upon it, from time to time, as the amounts recovered become due and payable. Until that may be done, the ordinary means for enforcing the payment of the judgment cannot be considered, as they certainly are not exhausted. (Lansing v. Lansing, 4 Lansing, 877.) And until that has been done, a creditor’s action in equity cannot be maintained.

A different rule was considered applicable to suits for the recovery of decrees in equity in the case of White v. Geraerdt (1 Edw. Ch., 336), and that is relied upon in support of the present action. But that was overruled by the decision which the Commission of Appeals made in the unreported case of Geery v. Geery, which hold that the remedy by execution must be exhausted upon all judgments for the recovery of money, whether they be recovered in legal or equitable actions, before a creditor’s suit can be instituted for their collection. That is a direct authority against the plaintiff, and justified the order denying the injunction.

If the action can be maintained by the plaintiff at all, it can only be as a judgment creditor. Eor it is to the rights of creditors alone that the surplus income of the trust has been subjected by the statute, even if they can now derive any advantage from the-provision professedly enacted in their favor. (3 R. S. [5th ed.], 21 § 76.) That in terms renders the surplus liable in equity to -the claims of creditors, and to their claims alone. But as this provision has been subordinated by construction to those imposing certain restraints upon creditors’ suits, it has been rendered impracticable for even that class of demands to be satisfied under it. (Hann v. Van Voorhis, 12 S. C. N. Y. [5 Hun], 425.) In either view of the plaintiff’s case, the application for the injunction was properly denied, and the order appealed from should be affirmed.

Davis, P. J., and Bradt, J., concurred.

Order affirmed.


text:
    GREENWICH BANK OF THE CITY OF NEW YORK, Respondent, v. THEODORE R. B. DE GROOT and others, Appellants.

      Promissory note — protest — notice of — Inquiry as to residence of indorser — examination of a directory— Post-office — Lamp-post box.

    Depositing a notice of protest in a postal box, attached to a lamp-post, may, hy a liberal construction of the statute, be regarded as equivalent to depositing the same in the post-office.
    Thorough and careful inquiry as to residence of the indorser is required when the notice is sent hy mail. Merely following the address given in the city directory is not sufficient.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury in an action on a promissory note.

      E. IJames, for the appellants.

      William G. Wheelwright, for the respondent.
   Daniels, J.:

As the only controversy existing in the case relates to the action taken, for the purpose of charging the defendant T. R. B. De Groot, as indorser, the judgment against the personal representatives of the deceased maker was free from all legal exception, and should be affirmed. The note was dated at the city of New York, and made payable to the order of, and indorsed by, the defendant Theodore R. B. Be Groot. It passed through the hands of two subsequent indorsers to the plaintiff. When it matured, payment of it was demanded at the place for that purpose specified in the note, and, not being paid, it was protested for non-payment. The payee and indorser added the affidavit provided for by the statute, and served it with his answer, denying that the notice of protest had been received by him. And, upon the trial, the clerk of the notary, to whom the note was delivered for demand and protest, testified that he found the name and address of the indorser in the New York directory, and directed the notice of protest to him through the post office, according to that information. No farther inquiry was made for the residence of the indorser, and the notice was dropped into a postal box attached to a lamp-post in the city of New York. The defendants’ counsel moved for a dismissal of the complaint on account of the insufficiency of this evidence. That was denied by the court, and a verdict directed for the plaintiff. To each of these decisions the defendants’ counsel excepted. An exception was also taken to the proof of the contents of the notice, because the recollection of the witness was not the best evidence. But as it was to be presumed from the facts, that the notice had left the hands of the witness in the manner described by him, and had not been received by the indorser, that it could not be itself produced, there was no foundation on which this objection could be maintained. Possibly the letter-boxes, placed about the city for the reception of letters and other mailable matter, may be properly regarded as the post-office for the service of notices of the dishonor of commercial paper, within the meaning of. the law of this State upon that subject. That law requires the notice fo be deposited in the post-office of the city or town where the paper may be payable, or legally presented for payment or acceptance. (Oliap. 416, Laws of 1857, § 3.) And these boxes, by a liberal construction of the terms of the act, may be regarded as the post-office for that purpose.

But the notice can only be served in that way when it may be addressed to a person believed to be in the same city or town, in the class of cases mentioned in the statute. This act, so far as it provided for the service of such notices through the post-office, was an innovation upon the previously existing law, which required the service in the same place as the paper should be payable to be personal, or by leaving it at the place of business or residence of the pei’son to whom it should be directed. And that law continues in force, except so far as the statute lias abrogated it, and it has only done so where the. residence or place of business of the person to be notified shall be in the same city or town where the paper is payable, or legally presentable for payment, or that shall be indicated under the indorsement or signature as his or her place of residence, or where such indorser or drawer, “from the best information obtained by diligent inquiry, is reputed to reside, or have a place of business.” (Id.) The notice was deposited for the defendant in this case, under this last clause of the statute, and the point presented for decision is whether the diligent inquiry mentioned and required by the statute was made by simply looking into, and finding what appeared to be the indorser’s address and place of business in the directory. The rule so tersely expressed in the statute was probably designed to be the same, as that which the commercial law has required to be observed for the purpose of ascertaining the place of residence of the person entitled to notice of the dishonor of the paper bearing his name; and that has been stated to be, “ that the party should send the notice to that place where it would most probably find the party to be notified most promptly, either in fact or according to the best information he possessed or could obtain, by the reasonable use of such means as were within his power.” (1 Parsons on Bills and Notes, 495.) “It is enough that the holder of a bill makes diligent inquiry for the indorser, and acts upon the best information he is able to procure. If, after doing so, the notice fails to reach the indorser, the' misfortune falls on him, not on the holder. There must be ordinary or reasonable diligence, such as men of business usually exercise when their interest depends upon obtaining correct information. The holder must act in good faith, and not give credit to doubtful intelligence when better could have been obtained.” (Bank of Utica v. Bender, 21 Wend., 643.) “Until some one is found, who profesbes to be able to give the required information, it will not do to stop short of a, thorough inquiry at places of public resort, and among such persons as would be most likely to know the residence of the indorser.” (Spencer v. Bank of Salina, 3 Hill, 520, 522; Rawdon v. Redfield, 2 Sandf., 178.) And for that purpose it has been held, where the requisite information cannot be otherwise obtained, due diligence requires that inquiry should be made of the other parties to the paper, when they may be accessible for that purpose. (Lawrence v. Miller, 16 N. Y., 235, 240.)

The statement found in the directory afforded the opportunity of further inquiry, and suggested its propriety ; and the notary could not. act without making it, unless he acted at his peril. The law requires a hona fide effort to discover the residence or place of business of the person to be charged; and if the notice be deposited in the post-office without making it, and it fails to reach the party it shall be addressed to, he will not be rendered liable by such a defective service. Such diligence should be observed as under ordinary circumstances, would be exercised in discovering the existence of a fact which it might be important for the holder to correctly ascertain. Both the rule of the commercial law and of the statute, requires that the holder shall obtain the information which diligent inquiry can secure concerning the residence of the party to be charged by the service of notice. And that is not shown by merely consulting the directory, when other sources of accurate information may be within the convenient reach of the person whose duty it may be to secure it, through which it can be obtained. The judgment recovered against the indorser should be reversed, and a new trial ordered, with costs to abide the event, and in all other respects it should be affirmed.

Davis, P. J., and Brady, J., concurred.

Ordered accordingly.


author: Daniels, J.;

text:
    THE PEOPLE ex rel. PATRICK COX, Plaintiff in Error, v. THE JUSTICES OF THE COURT OF SPECIAL SESSIONS, Defendants in Error.

      Ordinance of municipal corporation — power of legislature to confer authority to enact — § 82, a/rt. 11, chap. 335 of 1873.
    Hie legislature lias power to confer upon any department of a municipal government— e. g., the hoard of health — the. authority to enact and enforce ordinances. The power results from and is incidental to its power to create and maintain municipal organizations.
    Ceetioeaei to tlie Court of Special Sessions to review the conviction of the plaintiff in error of a misdemeanor.

      Wilson S. Wolf, for the plaintiff in error. The court can review all the evidence. (Mullin v. The People, 24 N. Y., 399.) The legislature cannot confer upon the board of health power to enact ordinances. (.People v. Albertson, 55 N. Y., 56; Corning v. Greene, 23 Barb., 53; Bacon v. Robertson, 18 How., 480.)

      Benj. K. Phelps, district attorney, for the defendants in error.
   Daniels, J.;

The relator was tried, convicted and sentenced to imprisonment for the period of one month ib the penitentiary, for keeping and offering for sale watered and adulterated milk. The act charged against him was a violation of section 45 of the sanitary code, adopted and promulgated by the board of health of the city of New York. By that section of the code it was declared that no person shall have at any place where milk, butter or cheese is kept for sale, nor at any place offer or have for sale, nor shall any person bring or send to said city any unwholesome, watered or adulterated milk, or milk known as swill milk, or milk from cows or other animals that, for the most part, lived in stables,” etc.

It is not claimed in behalf of the relator, that the act charged against him was not a violation of the terms of this section of the sanitary code. But it is objected that the board of health could not be constitutionally empowered to enact it. If the legislature could confer such authority on the board, ample reason exists for conclud mg that it has been done, for by section 82, article 11 of chapter 335 of the Laws of 1873, it was provided that, besides conforming the existing sanitary ordinances to its provisions, the board should also be “authorized and empowered to add to such sanitary code from time to time, and shall publish additional provisions for the security of life and health in the city of New York, * * * which shall be published in the City Record. Any violation of said code shall be treated and punished as a misdemeanor, and the offender shall also be liable to pay a penalty of fifty dollars, to be recovered in a civil action in the name,” etc.

The propriety of such an ordinance as that which the board has enacted is so evident, as to he clearly within the power contained in this section of the charter. It was necessary for the protection and preservation of the health of the inhabitants of the city. A more wholesome regulation could hardly have been devised or adopted, and it should be sustained and enforced by the courts, unless the board were deprived of the power to prescribe it, by some constitutional disability. The objection seems to be, that it involved such an exercise of legislative power as had been exclusively confided to the senate and assembly. Several adjudicated cases were cited and relied upon as maintaining that position, but an examination of them will at once show that they result in no such conclusion. (Hart v. Mayor of Albany, 3 Paige, 216; Aikin v. Western R. R., 20 N Y., 370; Corning v. Greene, 23 Barb., 33; Bacon v. Robertson, 18 How. [U. S.], 480; People v. Albertson, 55 N. Y., 50.) Neither of these cases contains any thing which would justify a denial of the authority exercised in this instance by the legislature. It is an authority which for mauy years has been exercised by legislative bodies in this country and in England, and it results from, and is incidental to, the power to create and maintain municipal organizations. The power to enact and enforce ordinances has always formed an essential feature in the creation of those corporations, and the Constitution contains nothing restricting its exercise to any particular part of the municipal body. It may be conferred upon the mayor and common council, or the latter body alone, or any other department of the municipal government, as may appear to be most just and expedient in the judgment of the legislature. That is a necessary result of the pie-nary authority secured by the Constitution to the legislature. Under that instrument the power exists to create and maintain bodies of that character; and how it may be most judiciously done, what authority over their inhabitants they may have, and how it may best be exercised, are matters that must necessarily be confided to the judgment of the legislature. It had the power to authorize the city of New York to enact ordinances from time to time, as might appear to be necessary for the promotion, preservation and protection of the public health, and as the constitution nowhere required that the authority should be given to the common council, the legislature was at liberty to deposit it elsewhere. Its authority to enact laws where the Constitution has not restrained it was complete and ample (Leggett v. Hunter, 19 N. Y., 445, 463), and as its power in this respect had not been limited, that was sufficient to warrant the delegation of the power to enact this ordinance, to the board of health. It was empowered as a department of the municipal government to enact this and other ordinances required to maintain the proper sanitary condition of the city, for the obvious reason that it would discover what might be requisite for that purpose in the discharge of its other duties, more readily than either of the other departments. The power was necessary to provide for apprehended emergencies, and it was placed where it could be most efficiently exercised. That the legislature could confer it upon the corporation is very clearly settled by an unbroken weight of authority: Jones v. Firemen's Fund Ins. Co. (2 Daly, 307); Hopkins v. Mayor of Swansea (4 Meeson & W., 621), where it was held that corporate by-laws, enacted by authority, have the same effect within the appropriate limits as an act of Parliament (id., 640); Heland v. City of Lowell (3 Allen, 407), in which an ordinance was held to be as binding on the members of the corporation and all other persons, as any statute or other law of the commonwealth (id., 408); City of Brooklyn v. Breslin (57 N. Y., 591); Heister v. Metropolitan Board of Health (37 id., 661); Tanner v. Trustees of Albion (5 Hill, 121), where such power was given to, and exercised by the trustees of a village; and there is nothing in either of these decisions by which it has been required to be lodged in any particular functionaries of the municipality.

The practice, on the other hand has long existed, by which this power lias been conferred upon boards of health, and it has not been limited to the cases of large cities, but the trustees of villages and the local officers of towns, even, have been made its recipients, and they, with the more complete boards of cities, have been delegated similar authority to enact and enforce such ordinances and regulations as the exigencies of the public health should appear to require. (Laws of 1850, chap. 324, §§ 1-3; sub. 3, § 3; Laws of 1854, chap. 169; Laws of 1870, chap. 559.) The ordinance in this case could not be held invalid without practically undermining this entire system, which has existed for years entirely unchallenged. The power of the legislature over this subject has not been denied by the Constitution, and the conclusion necessarily follows that it could, as it has, delegate to the board of health of the city of New York the power to make the ordinance in question. It was merely the exercise of municipal authority through the intervention of this board instead of the common council, and no well founded objection could be taken to that, as long as the ordinances to be enacted were to be confined to the subject committed to its jurisdiction and control.

It was objected upon the argument, that it did not appear, by the return, that the persons before whom the relator was tried were the officials having the power to hold the court. They did, however, show that they were such officials, for their return was prefaced with the statement of that fact. Besides that, the writ of certiorari was issued to them as persons lawfully acting in the capacity of police justices, and as such, members of the Court of Special Sessions.

The objection was also urged that the evidence was not sufficient to sustain the conviction, but it was shown beyond controversy, that the milk kept for sale had been diluted with water, and that the relator appeared to participate in the management of the business. His position upon the trial was that the business was in his own name only for the benefit of a friend pecuniarily under embarrassment, but two of the witnesses state! that he admitted to them in direct terms, that he was the proprietor, and to one that he had the management of the business. The other also stated that he had found the defendant at the place where the business was carried on, offering milk for sale.

Evidence was given by and on the part of tbe relator, tending to show that Gallagher, and not himself, carried on the store where the milk was kept and offered for sale, but it was not controlling over the disposition which should be made of the case; its weight and force merely presented a controversy as to the fact, which it was the peculiar province of the court having the witnesses before it, to decide. That tribunal, upon sufficient evidence, determined the fact against the relator, and that is conclusive upon this review of the case. The court, having the witnesses before it, could best determine which view was most likely to be correct, and this court should, for that reason, adopt its conclusion on that subject. This case belongs to a class which, when proven, deserves to be properly punished. The practice designed to be corrected by the law and the ordinance, is deleterious to the public health, as well as grossly fraudulent in its character, and when persons guilty of it are made the subject of prosecution and conviction, strenuous efforts are not required to be made, to relieve them from the consequences so well deserved by their misconduct. The case against the relator was sufficiently made out to justify his conviction, and the judgment of the court of special sessions should therefore be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    ROSALIE MAYER, Respondent, v. MAX FRIEDMAN, Appellant.

      Statute of limitations — contract made out of the State — residence in State for period, of limitation — must be proved.

    The complaint having alleged that the contract was made out oí the State, held, that to avail himself of the statute of limitations as a defense, the defendant must show that he has resided in this State for six years before the commencement of the action.
    Appeal from a judgment recovered on the verdict of a jury.
    The action was brought to recover for money lent in Philadelphia in the year 1865. The defendant, among other defenses in his answer, set up the statute of limitations. No evidence was offered by the defendant on the trial, and the court directed a verdict for the plaintiff.

      Samuel J. Glassey, for the appellant.

      James Barry, for the respondent.
   Daniels, J.:

The judgment was recovered for money loaned by the plaintiff to the defendant in the year 1865. By way of defense, the defendant relied upon the statute of limitations. But it was alleged in the complaint, and appeared by the evidence, that the money was loaned in the city of Philadelphia. The defendant averred in his answer, that he had resided in this State for more than six years before the commencement of this action ; but no proof of that fact was given upon the trial. From all that appeared in the case it could not be supposed that he had been in this State at any time, until the service of the summons upon him, by which the suit was commenced. And to establish his defense it was incumbent upon him to show that he had resided here for six years before that time, and that, he wholly failed to do. Without such proof the case was within the provision of the statute which declares that, “ if when the cause of action shall accrue against any person he shall be out of the State, such action may be commenced within the terms herein respectively limited, after the return of such pei-son into this State.” (Code, § 100.) .For it has been held to be applicable to causes of action arising in other States, when they become involved in suits prosecuted before the courts of this State. (Carpenter v. Wells, 21 Barb., 594; Ruggles v. Keeler, 3 Johns., 263; Gans v. Frank, 36 Barb., 320; Power v. Hathaway, 43 id., 214; Olcott v. Tioga R. R. Co., 20 N. Y., 210.)

It could not be presumed in favor of the defense, that the defend-r at left Philadelphia, where he was at the time of the loan, and transferred his residence to this State, long enough before the suit was commenced to entitle him to the protection of the statute of limitations. The presumption, on the contrary, would be just the other way, that he remained there until it appeared affirmatively that a change in his residence had actually taken place. And no change whatever appeared to have been made until the time when the summons was served upon him, which merely showed that he was then within this State. Jt could not be inferred from that fact that he had resided here for the period required by the statute, to enable him on that account to succeed in his defense. The judgment recovered against him should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    HERMAN UNGER, SIEGMUND MEYERHEIM and WILLIAM KEMPNER, Respondents, v. LIONAL JACOBS, Appellant.

      Pcvrol evidence — as to verbal agreement, constituting the consideration of a writing — when admissible.

    The law does not exclude parol evidence to show the further agreement of one party, because that of the other has been reduced to writing. A written agreement having been signed by one party, parol evidence may be given of an agreement made by the other party, as a consideration of the written contract.
    Appeal from a judgment recovered on trial at the Circuit. The action was brought to recover the amount of a note, guaranteed by the defendant. The defendant offered to prove that the note was given in payment of certain goods sold; that part of the goods were inferior to sample, and that when the guaranty was made the plaintiff agreed to deduct the price of such inferior goods from the amount of the notes. This evidence was excluded.

      Cornelius A. Rimlcle, for the appellant.
    The court erred in striking out the evidence of the defendant Jacobs. (,Jaelcson v. Jaelcson, 5 Cow., 173; 2 Graham & Waterman on New Trials, 656-664; MeRaven v. McGuire, 9 Smed.es & Marshall, 34; Rundell v. Butler, 10 Wend., 119; Hall v. Earnest, 36 Barb., 585; Quin v. Lloyd, 41 N. Y., 355; 35 Barb., 585.) The evidence stricken out affected the consideration only. (Emmons v. Little-field,, 13 Me., 233; Tyler v. Garitón, 7 Green]., 175; Wallis v. Wallis, 4 Mass., 135; Wilkinson v. Scott, 17 id., 249; McGrea v. Purmort, 16 Wend., 460; Atty.-Genl. v. Purmort, 5 Paige, 620; Adam.s v. AM, 2 Denio, 306.) In this case, the consideration expressed in the guaranty was nominal, and it is considered as not expressed, and it may be proved by parol. (Onns v. Ashley, 4 Pick., 71; Tinyley v. Guder, 7 Conn., 291.)

      Richard S. Newcomb, for the respondents.
   Daniels, J.:

The action was on an agreement executed by the defendant to the plaintiffs, in and by which, for the nominal consideration of one dollar, he guaranteed to them the prompt payment, at maturity, of two notes made by A. Rossman & Co., and particularly described in the agreement. With another defense contained in the answer, it was alleged that, at the time of the making and delivery of the agreement, the plaintiffs agreed with the defendant, in consideration thereof, to allow and deduct, or cause to be allowed and deducted, from the amount alleged to be owing on the notes, any and all claims which Rossman & Co. might have against Heidenheimer for or on account of the goods, wares and merchandise, for the price of which the notes were given. The answer then proceeded to show that Rossman & Co. had claims for the sum of $194, which, under the terms of the agreement, should be deducted from the notes; and the defendant, on the trial, .gave evidence tending to prove the making of such an agreement by the plaintiffs, which was afterward stricken out by the court. The defendant then offered to prove the existence of the demands set up in the answer, but the evidence was excluded by the court. . The decisions made on the exclusion of this defense were duly excepted to, and they present the only point in the case. In support of them, it has been urged that the evidence offered was in contravention of the terms of the defendant’s agreement, and for that reason inadmissible.

Rut this was an unsound view to take of the case. For the law does not exclude parol evidence to show the stipulation of one party, because those of the other have been reduced to writing Sncli evidence does not contradict or explain the writing, but shows that a further agreement was made by the other party to if. On its face, the instrument subscribed by the defendant contained nothing which the plaintiffs may have agreed to do, for the purpose of inducing its execution, neither did it show that no agreement, whatever of that-nature had been entered into by them. The defendant’s agreement, considered according to its legal effect, bound him to pay only what might prove to be due and owing on the notes at the time of their maturity. Payments before that time by himself, or the principal debtors, would have to be deducted in his favor. And that was the substance of the demand made by him upon the trial. The offer was to prove that the goods, for the sale of which the debt was created, were inferior in quality to the warranty made of them by the plaintiffs, and that they had agreed with the defendant to deduct the difference in their value from the amount of the notes. If he had been allowed to give the evidence, and it had supported his claim, it would have been attended with the same result, practically, as- the payment of so much money. But if it was not competent on the ground of payment, it should have been received, because it would have shown that the agreement of the plaintiffs to make the deduction was, in part, at least, the consideration on which his guaranty was executed. And that could be inquired into by means of parol evidence. As it was proposed to prove it, the agreement on the part of the plaintiffs was, that they would make the deduction of what was due to Rossman & Co., because of the failure of the goods sold, by which the debt was created, to conform to the warranty made concerning their quality and condition, if the defendant would guaranty the payment of the notes, and proof of it would in no way contradict or explain the agreement entered into by the defendant. It would show what, in part, was its consideration without changing its obligation. Hé would still be bound for the prompt payment of the notes, while, at the same time, the plaintiffs would be obliged to deduct from their amount what Rossman & Co. should prove entitled to, from the defective quality of the goods sold. The instrument executed by the defendant was designed to contain only the agreement made by him, which did not preclude him from showing, what the plaintiffs had undertaken to do, by so much of the agreement as was made on their part, for the purpose of securing the benefit of it to himself in the action. The same course was taken with the approval of the court in the case of Battermcon v. Pieroe (3 Hill, 171); and effect was given to an oral counter agreement for the purpose of defeating a recovery upon an indorsement, in the case of Bookstaver v. Glenny (3 N. Y. S. C., 248). This case has since been affirmed by the Court of Appeals, and must be regarded as definitely settling the law upon this subject, if it could otherwise have been regarded as doubtful or obscure. In principle, bot these authorities were decided upon the point now relied upon in favor of the defendant. Evidence similar to that offered by him to make out bis defense was received in them, and held to have been proper by the court, and that course should have been pursued upon the trial of the present action. The judgment recovered should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Davis, P. J., and Bbady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Brady, J.: Davis, P. J.

text:
    HORACE B. CLAFLIN and others, Appellants, v. JOSEPH S. TAUSSIG and others, Respondents.

      Fraud — credit obtained by — Pleading — anticipating defense.

    In an action for goods sold and delivered, when the answer sets up that notes were given in. payment of the debt, and that the notes were not yet due, held, that it could he shown on the trial that the credit granted by accepting the notes was obtained by fraud, and that the plaintiffs were not hound to anticipate the defense, and allege in the complaint the fraudulent character of the extended credit.
    Appeal from a judgment rendered at the New York Circuit.
    This action was brought to recover for goods sold and delivered. The defendants admitted the purchase, and alleged in their answer, that they had given their notes, three in number, in settlement of the account; that one of tbe notes had been paid, and that the others were not jet due. Ou the trial the plaintiffs offered to prove that the notes had been received upon fraudulent representations, birt the evidence was excluded on the ground that no allegations of fraud were charged in the complaint. The complaint was thereupon dismissed, except as to an amount admitted to be due, on the ground that at the time the action was commenced the plaintiffs had received payment of their claim by the notes.

      William F. Maerae, for the appellants.
    The notes having been taken on the fraudulent representation of defendants, could not be set up as a defense on the ground that they were not due. (French v. White, 5 Duer, 254; Kayser v. Siehel, 34 Barb., 84.) The theory and ruling of the court, that the complaint should have alleged fraud in order to defeat the defense interposed, was erroneous. (Wigand v. Siehel, 3 Iveyes, 120; Elwood v. Gardner, 45 N. Y., 352.) The plaintiffs’ surrender of the notes on the trial, was all that was necessary, in disaffirmance of the extension implied in the notes. (Kayser v. Siehel, 34 Barb., 89; Niehols v. Pinner, 18 N. Y., 312; Niehols v. Michael, 23 id., 264; Pequeano v. Taylor, 38 Barb., 375.) The indebtedness being all due at the time the notes were taken, there was no valid consideration for the extension of payment. (Miller v. Holbrook, 1 Wend., 317; Fair-child v. Warren, 21 How., 187; Kellogg v. Olmstead, 25 N. Y., 189.)

      Blumenstiel db Aseher, for the respondents.
   Brady, J.:

This action was brought to recover for goods sold and delivered. The answer was that three promissory notes were given in payment, two of which had not matured at the time the action was commenced. Upon the trial the notes were presented and an offer made to cancel them, on the ground that they were received by the plaintiffs in part settlement of the indebtedness sued upon, on the fraudulent representations of the defendants. The plaintiffs’ counsel then put in evidence the affidavits and order on file denying the motion to vacate the order of arrest granted herein. When the defendants rested, after having shown that the notes were given as stated, and that the sum of $16.62 was paid for interest upon them the plaintiffs proved that the credit upon which the goods were sold had expired at the time the notes were given, and that the accounts were then due. The plaintiffs then offered to show that the further credit granted by accepting the notes, was obtained by fraudulent representations of the defendants as to their solvency. This offer was rejected on the defendants’ objection, and it seems upon the ground that there were no allegations of fraud in the complaint. The plaintiffs duly excepted. The ruling thus made, was erroneous. The agreement to extend was like any other agreement — a release or discharge, for example — which could be assailed for fraud when presented as a defense. The plaintiffs were-not bound to anticipate the answer that the notes were not due, by averring that they were accepted by reason of fraudulent representations made to them. They had the right to treat the agreement to extend the time of payment, assuming it to have been founded on a good consideration, thus tainted, as of no validity, and the debt therefore due, which they did. When the defense disclosed the agreement, they were not bound by the rules of pleading, to give notice that they would assail it on the trial. ’ It was the duty of the defendants to approach the investigation, prepared to sustain the agreement, if necessary, by evidence showing its binding force. The plaintiffs’ counsel did, however, when the notes were surrendered to be canceled, state the reason of the proceeding in that respect, and did then notify the defendants of the' attitude they meant to assume in regard to them. The notes having been proved as an agreement to extend, the response was legitimate, that they were accepted by reason of fraudulent representations, and therefore valueless for the purpose for which they were created. The following cases establish the rules thus declared: Roth v. Palmer, 21 Barb., 652; Kayser v. Sichel, 34 id., 89; Wygand v. Sichel, 3 Keyes, 120; Bliss v. Cottle, 32 Barb., 322.)

These cases declare it to be unnecessary when a sale is influenced by fraudulent representations, even if marked by a credit which has not expired, to allege the fraud in the complaint. The presence of that element destroys the credit at the option of the seller, makes the debt due immediately if he so elect, and enables him at once to sue for its recovery upon an allegation of goods sold and delivered. His proof of it successfully meets and overcomes the defense of a credit unexpired. The plaintiffs were not obliged to allege the fraud, therefore, in the first instance, because it was not necessary to maintain their action. It was only requisite to prove it by way of avoidance.

It is only necessary to say, further, that the cancellation of the notes was sufficient without the return of the sixteen dollars and sixty-two cents paid, because the defendants were indebted to the plaintiffs more than that sum, exclusive of the notes, but independently of that view it appears that no objection was made of the insufficiency of the offer at the trial on account of the non-payment of the sum named, and it cannot be urged on appeal. The defendants took the broad ground that the debt on the notes was not due, and the alleged fraud was not admissible, because it was not averred in the complaint. It may be doubtful whether the agreement to extend the time of payment was valid because of the seeming absence of any consideration therefor, but the plaintiffs did not rest upon that on the trial, and it is not deemed necessary to consider the question now. It is •enough that the rulings were such as to demand a reversal of the judgment.

Judgment reversed and a new trial ordered, with costs to abide •event.

Daniels, J., concurred.

Davis, P. J.

I concur, but not in the suggestion of a doubt that the notes, if there had been no fraud, would not have operated as an extension of the time of payment of the debt, on the ground of •want of consideration.

•Judgment reversed, new trial ordered, costs to abide event.


author: Daniels, J.

text:
    ABRAHAM HEWLETT, Respondent, v. SAMUEL A. WOOD and others, Appellants.

      Deposition — completion of, necessa/ry.

    A. deposition taken under the provisions of the Revised Statutes for perpetuating the evidence of witnesses (3 R. S. [5th Ed.], 681-683], must be completed before it can be subscribed by the witness or certified by the officer taking it. These are both acts which must be performed before any right to file it can exist. Before the examination has been completed, the deposition cannot regularly he subscribed, certified, or filed. (Cole v. People, 2 Bans., 370 ; 43 N. Y., 508.)
    Appeal from orders denying motions made to suppress a deposition. It appeared that the direct examination was had, the evidence signed by the witness, and certified by the judge, and the matter then adjourned to another day, for the purpose of a cross-examination. The sickness of the witness prevented a cross-examination ever being had, and the evidence taken was filed in the clerk’s office.

      Abraham Waleeman, for the appellant. E. T. Schencfe, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., concurred.

Order reversed; order to be entered directing depositions to be taken from the files and returned to Mr. Justice Pratt, to proceed with cross-examination of witness, according to the understanding existing when the parties were before him on May 15, 1815 ; costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE W. CARLETON, Respondent, v. THE BOARD OF ASSESSORS OF THE CITY OF NEW YORK, Appellant.

      Motion — made on positive affidavits— denial, of knowledge or information sufficient to form a belief insufficient.

    The relator, upon his application for a mandamus, swore positively to certain facts; his statements were contradicted by an answer denying knowledge or information sufficient to form a belief as to their truth ; held, that such form of denial for the purpose of meeting the averment of a positive affidavit, upon a special motion, amounted to nothing. The Code has allowed it in an answer or reply in forming issues of fact by way of pleading, but it has not been sanctioned or allowed for any other purpose.
    Appeal from an order directing the issuing of a peremptory writ of mandamus, to direct the defendants to estimate the damage done his land and buildings, by reason of the closing of Bloomingdale road between Eighty-second and One Hundred and Third streets, in the city of New York, under chapter 697 of 1867.

      J. A. Beall, for the appellant. James A. Beering, foy the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    MICHAEL O'BRIEN, Respondent, v. WILLIAM O'CONNELL and THE ST. PATRICK MUTUAL ALLIANCE ASSOCIATION, Impleaded with JAMES J. TRAYNOR and others, Appellants.
    Corporation— right of individual to bring action in behalf of

    An action for the protection of a private corporation should be brought by it, and not by an individual, unless1 its refusal to prosecute such an action, or its collusion with the defendants be shown. If a person have no direct individual interest in the fund and property claimed, his application for an injunction and receiver will be denied. (Cray v. 17. 7. and Virginia Steamship Co., 10 N. Y. 8. C. [3 Hun], 383; Wedjen v. Vibbard, 12 id. [5 Hun], 265.)

      Appeal, from an order appointing a receiver and continuing an injunction.

      Charles Matthews, for the appellant. John T. McGowcm, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order reversed with ten dollars costs and disbursements ; motion denied with ten dollars costs.


text:
    CHARLES T. WEBSTER and HENRY P. SEYMOUR, Respondents, v. HENRY S. RACKETT, Survivor of GEORGE K. RACKETT, Deceased, Appellant.

      Partners —power of one to bind firm,.

    One of the members of a firm of ship brokers, of which the defendant was the survivor, contracted with the plaintiff to furnish a vessel, at a stipulated rate, to transport his property, and afterward failed to perform the contract. The contract was made at the place of business of the film, with one of the members, now deceased, who seemed to have been there for the purpose of attending to its affairs. Held, that in order to bind the firm it was sufficient to show that the agreement was one, which the defendant’s partner had authority to make in the course of the partnership business; and that such authority was not controlled by any stipulation which might have been made between the partners themselves, not brought to the notice of persons dealing with them, but extended to the transaction of all business ordinarily appertaining to that, for which the firm was formed. (Bindley on Part. [2d ed.], 244, 245; Collyer on Part. [3d Am, ed.], § 384 and cases cited in note; Winship v. Bk. of the U. S., 5 Peters, 552, 561, 562.)
    What is necessary to carry on the business of the partnership in the ordinary way, is made the test of the authority of one member to bind the firm when no actual authority or notification has been shown.
    Appeal from a judgment in favor of the plaintiff, recovered upon the report of a referee.

      Richard H. Huntley, for the appellant. H. Terry, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


text:
    HENRY M. WHITEHEAD, Respondent, v. ANDREW KENNEDY, Appellant.

      Counsel fees— attorney and client, relation of.

    Where the relation of attorney and client exists, the courts regard their dealings, through which important advantages are secured from the client, with a great degree of suspicion. They are considered to be the result of the controlling influence of the attorney or counsel over the client, and in order to entitle them to be sustained evidence is required which will remove or overcome that inference.' {Sweeney v. King, 35 Fng. Law and Eq., 100, 104.)
    The presumption is against the fairness and validity of the transaction, and the party claiming the advantage is required to rebut the presumption, before he will be at liberty to retain and enjoy the benefits of the transaction. {Evans v. Ellis, 5 Den., 640; Brock v. Barnes, 40 Barb., 521; Ford v. Harrington, 16 TT. Y., 285.)
    Appeal from a judgment in favor of tbe plaintiff, recovered on a referee’s report.

      John H. Parsons, for tbe appellant. Henry M. Whitehead, respondent, in person.
   Opinion by

Daniels, J.

Davis, P. J., concurred. Beady, J., concurred in the result.

Judgment reversed and new trial ordered, costs to abide the event, unless plaintiff stipulate to reduce amount reported due to $6,000 and interest from date of report) in that event judgment affirmed, without costs.


text:
    WILLIAM B. WINTERTON, Administrator, etc., Respondent, v. ADONIRAM J. WINTERTON, Appellant.

      Statute of limitations— Code, § 110 — acknowledgment of debt — to whom made.

    The law does not require that the acknowledgment of a debt, to render it effectual under the statute, should be exclusively and wholly made by the debtor to the creditor. It will defeat the operation of the statute if made, to the creditor’s agent, or some person acting for him or in his interest, who may be reasonably expected to communicate it to him, and on which communication he may be expected to repose. {Bloodgood v. Bruen, 4 Seld., 362, 367; Walceman v. Sherman, 5 id., 85, 91; Henry v. Boot, 33 N. Y., 526; Chasemere v. Turner, 38 Law Times [2ST. S. ], 323; Com. Law Series, pt. 2, p. 500; Bell v. Morrison, 1 Pet., 351.)

      Motion by defendant for a new trial on exceptions ordered to be first beard by the General Term.

      Albert Stielcney, for the defendant. W. B. Hoxie, for the plaintiff.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Motion for new trial denied. Judgment for plaintiff on tbe verdict of tbe jury.


author: Davis, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, ex rel FERDINAND KURZMAN, Appellant, v. ANDREW H. GREEN and others, Comprising the Board of Revision and Correction of Assessments, and the Board of Assessors of the City of New York, Respondents.

      Board of assessors — power of to ama/i'd damage for change of grade — award—who entitled to.

    The relator became the owner of a house and lot on One Hundred and Twenty-third street, New York, in 1873. The grade of the street was established in 1853, and altered in 1867 by the commissioners of the Central park, under laws •passed in 1865,1866 and 1867. In 1873, and after the relator became the owner of the lot, the street was regulated and graded in conformity with the new grade, and the damage resulting therefrom was awarded in favor of the relator by the hoard of assessors, and the lists transmitted to the hoard of revision and correction of assessments 11th February, 1874. On the 36th March, 1874, the list was returned with directions “ to omit the assessments for and awards of damage by reason of change of grade ” for the reason that the hoard of assessors had no power to include the sums so awarded or to make the said awards The relator thereupon applied for a mandamus commanding the hoard o£ revision to receive and enter the award, and the hoard of assessors to retain the awards without change. Held, that the right to have the loss and damage assessed is given, by section 8 of chapter 53 of the Laws of 1853, to the owner of the property at the time the change is made, and not to the party owning it when the law was passed changing the grade ; and the board of assessors have power to make such awards.
    Appeal from an order of tbe Special Term denying a motion for a writ of peremptory mandamus.

      Hurzman & Yeoman, for the appellants. D. J. Dean, and Hugh L. Oole, for the respondents.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Order reversed, and writ of mandamus granted.


author: Dayis, P. J.

text:
    HARRIET G. GLOVER, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Public atkninistrator — liability of city for acts of — evidence—comparison of hand-

    All persons aggrieved by the unauthorized acts and omissions of the public administrator of the city oí New York, have the same remedy against the corporation, that they would have against an executor. (2 E. S., 127, § 43.) It was the intention of the statute (2 R. S., 127, §§ 42, 43) to give the aggrieved party a direct remedy, by suit against the city (approving Matthews v. Mayor, 1 Sandf., 182), and not to require the claimant to seek an accounting in the Surrogate’s Court.
    When different instruments are properly in evidence, for other purposes, the handwriting of such instruments may be compared by the jury, and the genuineness or simulation of the handwriting in question be inferred from such comparison, hut other instruments or signatures cannot be introduced for that purpose. (Van Wyak v. McIntosh, 14 N. Y., 439; Dubois v. Baker, 30 id., 355 ; Randolph v. loughlm, 48 id., 456.) Such being the rule, held, error to admit letters in evidence for the mere purpose of comparison of handwriting. (Doe v. Newton, 5 Adolph. & Ellis, 514 ; Van Wyclc v. McIntosh, 14 N. Y., 439; Dubois v. Raker, 30 id., 355; Randolph v. Loughlm, 48 id., 456.)
    Appeal from a judgment in favor of plaintiff, entered on the report of a referee.

      James M. Smith, for the appellant. W. G. Trull, for the respondent.
   Opinion by

Dayis, P. J.

Daniels and Brady, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide event.


text:
    DANIEL W. WHITNEY and JERUTIA WHITNEY, his wife, Appellants, v. RANDOLPH W. TOWNSEND, Respondent.

      Laches — what constitutes — Judgment, setting aside of, to enable a party to appeal— Code, § 147.
    Tlie complaint was dismissed at Special Term in 1867, and the plaintiff appealed to the General Term, where judgment was affirmed, with costs. Judgment of affirmance was entered in November, 1872, but no judgment for costs was entered or docketed. In January, 1875, the plaintiff moved to set aside the judgment, for irregularity. Held, that the plaintiff had] been guilty of gross laches, and was not entitled to the relief sought. Held, also, that the court cannot set aside a judgment to enable a party to appeal, when the time to appeal has expired. (Cotes v. Smith, 29 How. Pr., 327, and cases cited per Mason, J.; Salles v. Butler, 27 N. Y., 638; Humphrey v. Chamberlain, 11 N. Y., 274, and cases cited at page 652 of Wait’s Code; Bryant v. Bryant, 4 Abb. [N. S.], 188.)
    Appeal from an order of the Special Term denying a motion to set aside a judgment for irregularity.

      II. -L. Olinton and II. E. Davies, for the appellants. A. J. Vanderpoel and A. E. Dyett, for the respondent.
   Opinion by

Davis, P. J.

Ready and Daniels, JJ., concurred.

Order affirmed, with costs.


text:
    THE GERMANIA FIRE INSURANCE COMPANY and others, Respondents, v. THE MEMPHIS AND CHARLESTON RAILROAD COMPANY, Appellant.

      Bill of lading— Contents of, how far evidence of agreement between the parties.

    A carrier having agreed with a shipper as to the price of transportation, on the following day delivered bills of lading in ordinary form, specifying the rates agreed upon, and containing certain conditions. On the next day the goods were shipped. Held, that the bills of lading, in the absence of fraud, must be taken as the evidence, and the sole evidence, of the final agreement of the parties, and by it their rights and liabilities must be regulated. (Long v. H. T. C. B. B. Co., 50 N. Y„ 76.)

      The price agreed upon on the previous day having been correctly inserted in the bill of lading, it became part of tbe same contract.
    This case distinguished from Bostwielc v. Baltimore and Ohio Baibroad Company (45 N. Y., 712).
    The presumption of law is, that a party receiving an instrument in tbe transaction of any business, is acquainted with its contents. (Belger v. Dinsmore, 51 N. Y., 166; Steers v. Diverpool, If. T. and P. Steamship Co., 57 id., 1; Manhattan Oil Co. v. C. and A. B. B. Co., 54 id., 197; Wetzell v. Dinsmore, 54 id., 496; Maghee v. C. asid A. B. B. T. Co., 45 id., 514; Shelton v. Merchasits’ Dispatch Frans. Co., 59 id., 258.)
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      F. TL. Churchill, for the appellants. Q. W. Ootteidll, for the respondent.
   Opinion by

Davis, P. J.

Daniels and Beady, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Davis, P. J., and Daniels, J.

text:
    THE HANOVER NATIONAL BANK OF THE CITY OF NEW YORK, Respondent, v. LOUIS LINNEWORTH, Appellant.

      Costs — additional allowance of, when attachment has been issued— Code, §§ 308, 309.
    An attachment having been issued and afterward vacated upon the defendant giving a bond, held., that .an additional allowance, under sections 308 and 309 of the Code, was properly based upon the amount of the bond, which took the place of the attached property. (Woodward v. Grier, 2 Code R., 13; JacIcsonY. Figanies-e, 15 How., 224; Pratt v. Conlcey, 15 id., 27; IselisiY. Gs'aydon, 26 id., 95.)
    Appeal from an order of the Special Term, affirming an adjustment of costs made by the clerk.

      W. W. Badger, for the appellant. Tracy, Olmstead & Tracy, for the respondent.
   Opinions by

Davis, P. J., and Daniels, J.

Beady, J., concurred.

Order affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK v. ALFRED B. SANDS, Surety, Impleaded with WILLIAM M. TWEED, Principal.

      Recognizance — forfeiture of — chapter 343 of 1839 — chapter 315 of 1844.
    Two means are provided under which objections and defences to a recovery upon, or enforcement of recognizances may be made and tried. First, under chapter 343 of the Laws of 1839 the court has power to order a suit to be brought upon the forfeited recognizance, for the purpose of trying questions of fact that may be urged or pleaded as a defense. (People v. Quigg, 59 PT. Y., 84 [87]; Alney v. Harris, 5 T. R., 175; Weimore v. Tracey, 14 Wend.,255.) Second, under chapter 815 of 1844 the court may order the recognizance to be forfeited and judgment to be entered thereon, all opposition and defenses being confined to the Court of Common Pleas. (See chap. 333 of 1861.)
    These acts respect different remedies, and do not interfere with each other.
    The Court of Oyer and Terminer is not obliged to hear objections and defenses to a forfeiture, which arise outside the record.
    The judgment having been entered becomes a judgment of the Court of Common Pleas, subject to the review of that tribunal, both under the Revised Statutes (2 R. S., 486, §§ 37, 38, 39, 40) and the provisions of chapter 315 of 1844 and chapter 333 of 1861. The act of 1844 and chapter 340 of the Laws of 1839 have no connection with each other, except as they both deal with the same general subject. They have respect to different remedies, and both are valid. (People v. Quigg, 59 PT. Y., 84, 87; Alney v'. Harris, 5 T. R., 175; 'Wetmore v. Tracy, 14 Wend., 255.)
    Certiorari to the Oyer and Terminer of the city and county of New York, to review proceedings had upon forfeiting recognizance of William M. Tweed, principal, and Alfred B. Sands, as surety.

      Dudley Field, for the defendant. Benj. K. Phelps, district attorney, for the plaintiffs.

      See People ex rel. Berlin v. Court of Oyer and Terminer, ante, p. 114.

   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Certiorari dismissed, with costs.


author: Brady, J.

text:
    THE COMMERCIAL BANK OF KENTUCKY, Appellant, v. JOSEPH B. VARNUM, Respondent.

      Notary public — MaMlity of — duties of — protest.
    A notary, to whom a draft is given for protest, is bound to follow the instructions given him ; it is not his duty to determine whether or not the draft should be protested on a certain day. He is not guilty of negligence in proceeding according to the instructions of the bank giving him the draft to protest, and is not, therefore, liable to any person for any damage resulting from the presentation of the draft on the wrong day. (Commercial Bank of Kentucky v. Vdmum, 49 N. Y., 269.)
    Appeal from a judgment in favor of the defendant, rendered by the court without a jury.

      John L. Hill, for the appellant. Hmry E. Davies and James E. Varnum, for the respondent.
   Opinion by

Brady, J.

Daniels, J., concurred.

Judgment affirmed.


text:
    THE BROOKLYN LIFE INSURANCE COMPANY, Respondent, v. NATHANIEL A. PIERCE and others, Appellants.

      Inspection of papers — affidavit, on motion for — what it must contain.

    On a motion for an inspection of papers, the moving affidavit alleged the nature of the action; the fact that several letters had been written to the plaintiff; that they constituted the agreement set up in the answer ; that they were material and necessary to the defense, and contained evidence relating to the merits, and that without them defendant could not safely proceed to trial. Reid, insufficient. Facts should be given which will enable the court to determine for itself whether the evidence is material. (Cassett'd v. Rinman, 6 Duer, 695; Pegmrn v. Cat-son, 10 Abb., 340.)
    Appeal from an order denying a motion for the inspection, and for a copy of papers, in the possession of plaintiff.

      Stephen K. Williams, for appellants. A. Ford, for respondent.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    JACOB P. MARSHALL, Appellant, v. JOSEPH L. FOWLER, Survivor, etc., Respondent.

      Sale —false representations — Pleading.

    The plaintiff brought this action to recover damages for fraudulent representations made on a sale of twenty-four hundred and ten barrels of apples. By the complaint the fraud was alleged to consist in the representation, that they were “ a first rate and choice lot of Niagara county winter apples,” and it was alleged that such representation was false and fraudulent, known to the defendant to be untrue, and made with intent to deceive and defraud the plaintiff. Held, that to entitle the plaintiff to a recovery it was necessary to prove that the representation relied upon was known by the defendant to be false. In order to enable plaintiff to recover, on showing that defendant made the false representations without knowing the condition and quality of the article sold, the fact should have been alleged in the complaint. (Marsh v. Father, 40 N. Y., 562-565 ; Hubbell v. Meigs, 50 id., 480, 489; Bilis v. Andrews, 56 id., 83, 87; Binnard v. Spring, 42 Barb., 470; Indianapolis, ete., B. B. Oo. v. Tyng, vol. 4 N. Y. Sup. Court Bepts., 524, 533,534; S. 0., 2 Hun, 311; Stone v. Benny, 4 Mete., 151,162, 2.)
    Appeal from a judgment recovered on the dismissal of the plaintiff’s complaint at the Circuit.

      William W. Wiles, for the appellant. A. Hamilton Webster, for the respondent.
   Opinion by

Daniels, J.

Brady, J., concurred.

Judgment affirmed.


text:
    THE OCEAN NATIONAL BANK, Respondent, v. SELAH C. CARLL, Appellant.

      Receiver of nal ionalbanh — power of State court over— V. S. Bev. St., §§ 5234-5236.
    Alter the entry of a judgment for costs against the plaintiff, a receiver was appointed by the controller of the currency, under section 50 of the national banking act. Held, that the court cannot order the receiver to pay the costs; first, because the receiver was not a party to the record, and, secondly, because he is not an officer of the court, and is bound to pay over all moneys collected into the United States treasury.

      Appeal from an order of special term, denying defendant’s motion that the receiver of the Ocean National Bank (the plaintiff) pay, out of the moneys in his hands, the judgment in favor of the defendants for costs in the action.

      Nelson Smith, for the appellant. Dunning, JEdsall <& Hart, for the respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    JOHN BOHNET, Appellant, v. LEOPOLD LITHAUER, Respondent.

      Case — settlement of— Stenographer’s minutes — Bule 41.
    Rule 41 does not entitle the party making the case, as a matter of absolute right to the use of the stenographer’s notes; that may be done if the justice settling the case deems it proper. If he does not, any other statement showing what the evidence was may be used. The matter has been committed very much to the judgment and discretion of the justice before whom the trial is had.'
    Appeal from order denying a motion for a resettlement of a case.

      J. H. Cornell,- for the appellant. D. Leventritt, for the respondent. .
   Opinion by

Daniels, J.

Davis, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    CHARLES HAYMAN, Appellant, v. GEORGE M. JONES and others, Respondents.

      Chattel mortgage — omission to file.

    The statute does not render a chattel mortgage absolutely void for the omission to file it, but simply declares it void as to judgment creditors and subsequent purchasers iu good faith. As to other persons it is valid without "filing. (3 R S. [5th ed.], 823, § 11; Ely v. Nash, 19 Wend», 523; Thompson v. Van Vechten, 27 ÍT. Y., 568, 582; Porter v. Parmley, 52 id., 185.)

      Appeal from a judgment entered on the report of a referee.

      Albert Qardozo, for the appellant. W. T. B. Milliken, for the respondent Jones.' Stillwell da Swain, for other defendants.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment reversed and new trial ordered, costs to abide event.


text:
    MARY N. TOWNSHEND, Appellant, v. PETER S. NORRIS, Respondent.

      Pleading — allegations — refer to time of commencing the action.

    The phrase “ was alone invested with any right or title to the cause of action set forth in the complaint,” must he construed to refer to the time of the commencement of the action, to which all similar averments, whether in form in the present or past tense are held to refer.
    Appeal from judgment entered on demurrer.

      John Townshend, for the appellant. Peter S. Norris, respondent, in person.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Judgment affirmed:


text:
    In the Matter of the Petition of THE NEW YORK ELEVATED RAILWAY COMPANY

      Municipal corporations — railroad companies in — Local laws — Eminent domain — chap. 606 of 1875 — construction of — Const., art. 3, § 18.
    This was an application for the confirmation of the report of commissioners, appointed pursuant to section 6 of chapter 606 of the Laws of 1875, to determine whether a railway, the route of which had previously been designated by other commissioners, ought to be constructed or operated. The commissioners who laid out the route of the railway were appointed by the mayor of the city of New York, in conformity to the provisions contained in the first section of that act. The railway was laid ont by them through certain streets of the city. The consent of the local authorities having charge and control of the streets over which the route of the railway as it was approved ran, was secured for its construction and operation, but that of a majority in value of the property owners on the streets, which was required by section 4, chapter 606 of 1875, and article 3 section 18, of the Constitution, was refused; and it was for that reason the commissioners were appointed, pursuant to the provisions of the statute and the Constitution, to hear them. The commissioners made their report, stating that they had heard the parties opposing the railway, and, subject to certain qualifications, it ought to be constructed and operated. These parties objected to the confirmation of the report, on the ground that the act was local in its character, and for that reason -within the constitutional provision forbidding the enactment of various local laws, because of local restrictions imposed upon its general provisions, by which it was declared that the railWays which it authorized should not be constructed or operated in •certain streets in certain cities. The court held, that there was nothing in the Constitution which deprives the legislature of the power of making local exceptions in general laws; that it was a power which has been frequently exercised without creating a doubt concerning its constitutional propriety, and that to render a law general it was not necessary that it should apply with the same effect to every locality in the State. (.People v. Hills, 35 N. Y., 449, 451; People v. O'Brien, 38 id., 193, 194, 195 ; People v. Supervisors of Chautauqua, 43 id., .11.) And that, even if the local exceptions could not be made as they were declared, they would not render the act a nullity, but would be, in themselves, inoperative. (People v. McCann, 16 id., 58, 60, 61.) The court further held, that under the provisions of the statute (§§ 18-26) private property could only be acquired for the use of the corporation by making compensation for it to the owner; the interest in the land used for streets and highways, not owned by the public, could only be appropriated for the purposes of the railway in the manner they provide for. (Williams v. The New Yorh Central R. R., 16 N. Y., 97.) That in the case of streets in the city of New York, laid out and opened under the act of 1813, no such interest in the land used by them remains in the adjacent owners; and over them the legislature had the power to-provide for the construction of a railway without further compensation. (.People v. Kerr, 27 N. V., 188.) That the provisions of subdivision 5, section 26 of chapter 606 of 1875 are so broad that they confer upon the railway corporation, by which the road was to be constructed and operated, complete authority to use the streets- and avenues through which the route might be laid, without compensation, when the title to the land made use of, was not owned by individuals, but has been vested in and paid for by the public. That where individual property might be so appropriated, compensation must be made for the additional burdens imposed upon it, beyond those required for the purposes of the street or avenue used, but not otherwise. That the right to such compensation had been fully protected by the statute. That the act of 1875 was not defective, because no particular description of railroad was designated in it; the legislative power was left uncontrolled upon that subject, and where that is the case the authority of the legislature is supreme. (People v. Flagg, 46 N. Y., 401.) The act of 1875 does not require that the consent rendered essential by the statute, or the report of the commissioners appointed by the General Term and confirmed by the court, should be secured within sixty days. The statute requires simply that the commissioners should, within sixty days after their organization, “fix and determine the route or routes for such steam railway or railways.” (Laws of 1875, chap. 606, §§ 4, 38.) In any event, that the time within which a public act is required to be performed is not mandatory, but directory, and a literal observance of the direction as to time is not indispensable to the validity of the act. (Wood v. Chapin, 3 Neman, 509; Matter of Empire City Bank, 18 N. Y., 200 ; People v. Cook, 4 Seld., 69; Barnes v. Badger, 41 Barb., 98, 99.) That the fact that the commissioners, appointed by the court to determine whether the road laid out ought to be built, were selected without notice to the persons owning property upon the streets, was not an irregularity, as neither the Constitution nor the statute required that any preceding notice should be given or served. (Art. 3, § 18 of Const.) As the manner in which the hearing before the commissioners was to be conducted was defined by neither the statute nor the Constitution, it was necessarily placed in the control of the court and the commissioners. A notice given on the fifteenth for the twenty-sixth of January by publication in seven daily papers 'and posting in 114 conspicuous places along the route of the proposed railway was, under the circumstances, sufficient. It was objected that the commissioners declined to allow the witnesses to be orally examined before them, but the court held, that they were nowhere required to do so ; they were simply to hear those opposed to the railway on the route selected for it. How they should be heard was not declared. Neither were the commissioners confined to any particular species of evidence. They were necessarily left very much at liberty, in that respect, and could hear all that should appear to be pertinent to the inquiry they were to make, even if it should not be in the form received by courts of justice. A due hearing was what was secured, and that could as well be had by affidavits stating the facts, as by oral evidence formally given. The statute and the Constitution were both entirely silent as to the •course which should be pursued in hearing the parties; and whatever was adequate to secure the hearing mentioned was clearly sufficient for the purpose. How it could be best secured and promoted was •necessarily dependent upon the judgment and discretion of the •commissioners ; and as long as that was not abused, but was completely effectual, no substantial ground for complaint could exist .against the course of proceeding which they prescribed. The commissioners qualified their report by the restriction that the railway should be constructed over the center of Third avenue, and that in all other streets and avenues, the columns for it should be so located in the roadway, wherever that was practicable, and the .alignment and other circumstances would properly admit it; and that in streets not exceeding thirty feet in width, between the •curbs, it should not be constructed with a row of columns on the line •of each curb, and a superstructure with a track upon each row of •columns, but in one of the other methods designated by the commissioners selecting the route. This, however, they at the same time declared should be without prejudice to the right of the New York Elevated Railroad Company, which, under the statute, was given the right to build and operate the road, “to construct said railway, in any mode provided for in the specifications adopted by said commissioners, over and along such portion of said route, in respect to which they should first have had and obtained the consent, in writing, to such mode of construction from the owners of one-half in value of the property bounded on that portion of such route, over and along which the petitioners should desire to construct said railway in the manner lastly hereinbefore mentioned.” The court held that the commissioners could properly impose these restrictions upon the road ; that the power to determine that the railroad ought to be built, would include the authority to add so necessary a qualification to the determination; and further held, that the expression, laying out the route along the streets, would legally cause it .to pass over the center, those being terms of legal signification which have been construed to designate the center of the street or highway referred to by them. (Jackson v. Hathaway, 15 Johns., 447, 454; Child v. Starr, 4 Hill, 369, 373; Bissell v. R. Y~. Cent. R. R. Co., 23 N. Y., 61; The Seneoa Ration of Indians v. Knight, id., 498.) The commissioners reported further, that a route of connection, commencing at Ninety second street and Ninth avenue, extending along that street to Eighth avenue, and through that avenue and other streets, and along the Harlem river to High bridge, and to the depot of the New York, Boston and Montreal Railroad, and to the depot of the Spuyten Duyvil and Port Morris Railroad, ought not, as a whole, to be constructed or operated. The court held, that this was in the nature of an independent road, not forming any necessary portion of the other route selected, and it was not improperly made the subject of separate determination.
    . Henry K. Davies, James Emott, A. J. Yanderpoel and Edward G. Delavan, for the petitioner.

      Sami. G. Geliffe, for J. M. Hartshorne.

      Wheeler H. Peckham, John E. Parsons and Joseph H. Choate, opposed.

       This case was decided April 15, 1876.

   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Report of commission afiirmed.