author: Van Brunt, P. J., and Bartlett, J.

text:
    Edward Hansen, Respondent, v. The Trustees of the New York and Brooklyn Bridge, Appellants.
   Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Van Brunt, P. J., and Bartlett, J.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Augustus C. Genet, Appellant, v. The President, etc., of the Delaware and Hudson Canal Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    William B. Perry and another, Appellants, v. John L. Smith, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    Mari A. Cuming, Appellant, v. William M. Whiting, Respondent.
   Order reversed, with ten dollars costs and disbursements to abide event. Opinion by

Van Brunt, P. J.


text:
    Arden S. Fitch, Appellant, v. William Cunningham, Respondent.
   Judgment reversed, new trial ordered, costs to appellant to abide event.


text:
    William C. Ilsley, Respondent, v. Josephine D. Keith, Appellant.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Fleming S. Phillips, Appellant, v. The Germania Mills, Respondent.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


author: Per Curiam.

text:
    Hannah Crine, Appellant, v. Herman Bornemann, Respondent.
   Order modified, as directed in opinion, without costs. Opinion

Per Curiam.


text:
    Elizabeth Spring, Administratrix, Appellant, v. Francis George, Respondent, Impleaded, etc
   Order reversed, without costs, and default opened on payment of trial fee and disbursements and ten dollars costs of motion.


text:
    Ernest Ludeke and others, Respondents, v. J. Lawrence McKeever, Appellant.
   Order affirmed, with ten dollars costs and disbursements in one case and disbursements in both. Opinion

Per Curiam.


author: Bartlett, J.

text:
    The People of the State of New York, Respondent, v. Daniel Driscoll, Appellant.
   Judgment affirmed. Opinion by

Bartlett, J.


author: Van Brunt P. J.

text:
    In the Matter of Mary T. Hatten.
   —Judgment reversed, new trial ordered before a jury mthe Court of Common Pleas. Opinion by

Van Brunt P. J.


text:
    James Cruikshank, as Executor, etc., Appellant, v. The Home for the Friendless and others, Respondents.
   Judgment affirmed, without costs. Opinion

Per Curiam.


author: Daniels, J.

text:
    Lizzie A. Miller, Appellant, v. Eliza W. Parkhurst, Respondent.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Elizabeth Dodge, Appellant, v. Robert Glendenning and others, Respondents.
   Judgment affirmed, with leave to plaintiff! to amend on payment of costs of demurrer and of appeal. Opinion by

Daniels, J.


text:
    Delia M. Moller, Respondent, v. Frank C. Moller, Appellant.
   Judgment reversed and new trial ordered before another referee. Opinions by

Van Brunt, P. J., and Bartlett, J.


text:
    Charles P. Berdell, Appellant, v Eliza W. Parkhurst, Executrix, etc., Respondent.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    William Hovey v. Melinda R. Purdy.
   J udgment affirmed, with costs. Opinion hy

Daniels, J.


author: Van‘Brunt, P. J.

text:
    The People of the State of New York, Respondent, v. John O’Neill, Appellant.
   Judgment affirmed. Opinion by

Van‘Brunt, P. J.


text:
    Mortimer Hendricks, Respondent, v. Charles G. Wolf, Appellant, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    Frederick Lange, Respondent, v. Peter Kearney, Appellant.
   Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion

Per Curiam.


text:
    John Hone v. John W. De Peyster.
   Appeal dismissed, with ten dollars costs and disbursements. Opinion

Per Curiam.


text:
    William C. Rowland, Appellant, v. John Alden and others, Respondents.
   Order affirmed on authority of Matthews v. Tufts (87 N. Y., 568).


author: Van Brunt and Lawrence, JJ.

text:
    The People of the State of New York ex rel. Thomas F. Gillaine v. Charles H. Woodman and others, Commissioners, etc.
   Order affirmed on opinions of

Van Brunt and Lawrence, JJ.


text:
    Charles A. Clegg v. The New York Newspaper Union.
   Order sent back to the justice making the same for resettlement. Opinion

Per Curiam.


text:
    Germania Fire Insurance Company v. John R. Francis.
   Motion for rcargument denied.


text:
    Walter Langdon, Plaintiff, v. The Mayor, etc, of the City of New York, Defendant.
   Report set aside and further reference ordered as directed in opinion. Opinion by

Daniels, J.


text:
    Marian Langdon, Plaintiff, v. The Mayor, etc., of the City of New York, Defendant.
   Report set aside and further reference ordered. Opinion by

Daniels, J.


author: Brady, J.

text:
    Frances Schwerdtfeger, Respondent, v. The New York and Baltimore Transportation Line, Appellant.
   Judgment affirmed.' Opinion by

Brady, J.


text:
    Catherine A. Hedges, Respondent, v. Abraham B. Conger, Appellant.
   Judgment affirmed, with leave to defendant to answer in twenty days, on payment of costs of demurrer and of appeal. Opinion by

Daniels, J.


text:
    Francis B. Thurber and others, Respondents, v. John E. McIntire, Appellant.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Patterson, J.

text:
    Louis Lesserman, Respondent, v. Isaac Bernheimer, Appellant.
   Judgment affirmed, with .costs Opinion by

Patterson, J.


text:
    Arnold Lustig, Appellant, v. Elias Springarn, Respondent.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Frances M. Dominick, Appellant, v. William H. Dominick, Respondent.
   Verdict set aside and new trial decreed.


text:
    David Newman, Respondent, v. The Metropolitan Elevated Railway Company and another, Appellants.
   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    In the Matter of Hiram Hutchinson.
   Order affirmed, with costs. Opinion by

Van Brunt, P. J.


text:
    Henry Schmid, Appellant, v. Christian Maeurer, Respondent.
   Judgment reversed, new trial granted, costs to appellant to abide event. Opinion by

Bartlett, J.


author: Lawrence, J.

text:
    The Metropolitan Elevated Railway Company, Appellant, v. Sylvester H. Kneeland and others, Respondents.
   Judgment affirmed. Opinion hy

Lawrence, J.


text:
    The St. Nicholas National Bank, Respondent, v. Percy R. King, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Van Brunt, P. J.


text:
    Adelia L. Otis v. Eustace Conway.
   Mem.

Per Curiam.


author: Brady, J,

text:
    Kate Hartman, Respondent, v. Peter Hartman, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion hy

Brady, J,


author: Barnard, P. J.

text:
    The People of the State of New York ex rel. Joseph Hargrove, Appellant, v. Henry G. Johnson and others, Police Commissioners, etc., Respondents.
   Order dismissing relator affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Henry S. Myers, Respondent, v. The Long Island Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Stephen Tabor, as Committee, etc., v. Maria A. Brundage and others.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


author: Pratt, J.

text:
    Patrick Reiley v. John E. Murray.
   Motion denied. Opinion by

Pratt, J.


author: Pratt, J.;

text:
    Dilazon Tompkins, Respondent, v. Robert H. Austin, Appellant.
   Order reversed and motion denied. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    George W. Wingate, Respondent, v. The Lipsey Gas Burner Company, Defendant.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Jacob J. Van Buskirk, Respondent, v. Robert W. Gordon, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Rosie Rydzenske, as Administratrix, etc., Appellant, v. The Staten Island Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., dissenting.


text:
    Matter of Will of Joseph Hoffman, Deceased.
   Decree of surrogate admitting will to probate affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J,

text:
    Thomas J. Clute v. William G. McCrea.
   Motion denied, with ten dollars costs. Opinion by

Dykman, J,


text:
    Amelia Gall v. Charles F. Gall.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    The People of the State of New York ex rel. Daniel Blake v. Richard B Whittemore and others, Police Commissioners of Richmond County.
   Order reducing relator in rank reversed, with costs. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. Daniel Blake v. Richard B. Whittemore and others, Police Commissioners of Richmond County.
   —Order dismissing relator reversed, with costs. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. Hartford and Connecticut Western Railroad Company, Appellant, v. Mandeville S. Frost, and others, Assessors of Rhinebeck, Respondents.
   Order affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    The People of the State of New York ex rel. John Whitcomb v. John Appleton and others, Commissioners.
   Order dismissing relator affirmed, with costs. Opinion by

Barnard, P. J.


text:
    In the Matter of the Estate of Andrew Hood.
   Order affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Maria L Hood, Appellant, v. John N. Haywood, Respondent, Impleaded, etc.
   Order staying trial affirmed, without costs and disbursements. Opinion by

Pratt, J.;

Dykman, J., not Bitting.


author: Pratt and Dykman, JJ.

text:
    Henry Rankin, Respondent, v. Augustus Nelson, Appellant.
   —Order setting aside verdict and granting new trial reversed, with costs and disbursements. Opinions by

Pratt and Dykman, JJ.


text:
    Ellen Golden, Respondent, v. George H. Wooster, Appellant.
   Order granting judgment for fnvolousness of answer affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Thomas M. King and others, Respondents, v. Reon Barnes, Appellant, impleaded, etc.
   Order refusing to resettle case affirmed, with ten dollars costs and disbursements. Opinion by

Dykman, J.


text:
    Thomas M. King, Respondent, v. Reon Barnes, Appellant, Impleaded, etc.
   Order granting stay reversed, with costs and disbursements, and motion denied, with costs. Opinion by

Dykman, J.


text:
    John Andrews, Respondent, v. Amelia D. Borland and others, Defendants. (John A Schilling, Purchaser, Appellant.)
   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


author: Pratt, J. ,

text:
    The People of the State of New York, Respondent, v. George W. Lake, Appellant.
   Conviction and judgment affirmed. Opinion by

Pratt, J. ,


author: Pratt and Dykman, JJ.;

text:
    Gilbert Hewitt and another, Executors, etc., Respondents, v. Richard V. Hall and others, Executors, etc., Appellants.
   Judgment reversed and new trial granted, with leave to plaintiff to discontinue, without costs. Opinion by

Pratt and Dykman, JJ.;

Barnard, P. J., not sitting.


text:
    James S. Cox and another, Plaintiffs, v. Hosea O. Pearce and others, Defendants.
   Order directing verdict for plaintiff affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Alvin F. Hill, Respondent, v. Philip Spencer and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    In the Matter of the Estate of Jennie D Vandewater.
   Order appointing guardian affirmed, with costs. Opinions by

Pratt and Dykman, JJ.


text:
    John H. Abrams, Jr., and others, Appellants, v. Henry F. Johnson, Respondent.
   Judgment of County Court affirmed, with costs. Opinion by

Pratt, J.


text:
    Thomas Halpin, Respondent, v. The Ætna Fire Insurance Company, Appellant.
   Judgment and order denying new trial affirmed,with costs. Opinion by

Barnard, P. J.


text:
    Thomas Halpin, Respondent, v. Insurance Company of North America, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Augustus H. Gorhman, Appellant, v. Aaron Innis, Assignee, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Theodore H. Vatterlein v. Demas Barnes, Assignee.
   —Motion to charge assignee personally with costs denied, with ten dollars costs. Opinion by

Dykman, J.


text:
    Daniel Dolan and another, Respondents, v. The Newburgh, Dutchess and Connecticut Railroad Company, Appellant.
   Reargument ordered.


author: Barnard, P. J.;

text:
    Caroline Barker, Respondent v. Alonzo R. Thompson and another, as Administrators, Appellants.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., not sitting,


text:
    John H. Smith v. John Satterlee and others.
   Motion for reargument granted. Opinion by

Barnard, P. J.


author: Dykman, J .

text:
    William Jackson, Respondent, v. George D. Eighmie, Appellant.
   Judgment of County Court and j ustice reversed, with costs. Opinion by

Dykman, J .


text:
    William Jackson, Appellant, v. George D. Eighmie, Respondent.
   Judgment of County Court affirmed,with costs. Opinion by

Dykman, J.


text:
    Albertina Heckel, Administratrix, etc., Appellant, v. The New York and Sea Beach Railway Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Victor Seaman, Respondent, v. Timothy O'Leary, Appellant, Impleaded, etc.
   Order affirmed, with costs. Opinion by

Pratt, J.;

Dykman, J not sitting.


text:
    Michael Fitzgerald, Administrator etc., v. The Long Island Railroad Company.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


author: Dykman, J.;

text:
    Thomas Nelson as Administrator, etc., Respondent, v. James L. Armstrong, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Helen Traphagen, by Guardian, Respondent, v. The Fidelity and Casualty Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Catherine Areson, Appellant, v The Long Island Railroad Company, Respondent.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    William J. McCaldin, Respondent, v. The Greenwich Insurance Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Bailey Hobbs, Respondent, v. Henry W. Bashford, Appellant.
   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    Francis E. Tierney, Appellant, v. White, Porter & Paige Manufacturing Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Levi P. Rose, Respondent, v. David Hawley and others, Appellants.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    John J. Stanwood, Appellant, v. David J. Tyson, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Albert L. Dow and others, Respondents, v. Henry Lansdale and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Pratt, J

text:
    Sophia Schreiber, Respondent, v. The Twenty-third Street Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J


text:
    Philip Fitzpatrick, Respondent, v. Benjamin F. Burdick, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Araminta H. Bedell, Respondent, v. Charles C. Bedell and others, Appellants.
   —Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard P. J., not sitting.


text:
    Charles E. McDowell, Respondent, v. The New York and Sea Beach Railway Company, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    William Gray v. Cornelius Smith, Appellant, Impleaded, etc.
   Order striking out demurrer affirmed, with costs and disbursements to be included in the plaintiff’s bill of costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Mary E. Ryan, Respondent, v. The Manhattan Railway Company, Appellant.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text: The People of the State of New York ex rel. John Buchanan, Appellant, v. The Commissioners of the Department of Fire and Buildings of the City of Brooklyn, Respondents.


text: The People of the State of New York ex rel. William H Manning v. Same Defendant.


text: The People of the State of New York ex rel. Ernest Lesche, Appellant, v. Same Respondents.


text:
    The People of the State of New York ex rel. John H. Jeffers v. Same Defendant.
   Order dismissing relators reversed, with ten dollars costs in each appeal. Opinion by

Dykman, J.


text:
    Eliza Baisley, Respondent, v. The Rose Brick Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Michael Bennett and another, Executors, Appellants, v. John M. Peck, Respondent.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Mary E. Y. Howe v. James Leyall and another.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Barnard, P J.;

text:
    Edward P. Day, Respondent, v. Edward Taylor Hunt, as Executor, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P J.;

Dykman, J., not sitting.


text:
    Cornelia H. Bishop, Respondent, v. The Village of Goshen, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Henrietta McVoy, Respondent, v. Abner Mills, Appellant.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Stephen S. Newton, Appellant, v. John S. Wells and another, Respondents.
   Judgment modified by striking out costs and allowance granted against defendant and as modified affirmed, without costs. Opinion by

Pratt, J.


text:
    Eliza Allison, Appellant, v. The Village of Middletown, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Albert B. Parker, Plaintiff, v. Samuel Loring, Defendant.
   Judgment for defendant upon submitted case, without costs. Opinion by

Barnard, P. J.


text:
    Henry C. Brown, Plaintiff, v. German American Insurance Company, Defendant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.


text:
    Village of Port Jervis, Appellant, v. Barrett Bridge Company, Respondent.
   Judgment reversed and that of justice affirmed; motion to dismiss appeal denied. Opinion by

Barnard, P. J.


text:
    Alexander H. Dudley, Appellant, v. Matthew V. B. Brinkerhoff, Respondent.
   Order refusing to dismiss appeal denied and judgment reversed, with costs. Opinion by

Dykman, J.


text:
    Charlotte E. Merritt, Appellant, v. Gardiner S. Lockwood, Respondent, Impleaded.
   Judgment affirmed, with costs. Opinión by

Pratt, J.


text:
    Charles T. Redfield, Respondent, v. Charles W. Still, as Executor, etc., Appellant
   —Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Matter of Taxation of Hannah Eusten.
   Decree affirmed, with costs. Opinion by

Pratt, J.


text:
    Thomas Burns, Plaintiff, v. Staten Island Rapid Transit Railroad Company, Defendant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Alma McCord, Appellant, v. The Town of Ossining, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    In the Matter of the Application of the Staten Island Rapid Transit Railroad Company to Acquire Title to Certain Real Estate in which the People of the State of New York and others are the parties interested.
   Opinion by

Pratt, J.

Order refusing leave to file supplemental answer affirmed, with costs; order refusing to remove commissioners affirmed; upon the appeal from order confirming report reargument ordered.


author: Boardman, J.

text:
    Thomas Lacy, Respondent, v. Sophronia A. Getman, Appellant.
   Judgment and order reversed, ana a new trial granted, with costs to abide event. Opinion by

Boardman, J.


author: Hardin, P J.

text:
    Catharine Pecor, Respondent, v. The City of Oswego, Appellant.
   Order reversed, with ten dollars costs and disbursements; motion granted, with ten dollars costs. Opinion by

Hardin, P J.


author: Board-man, J.

text:
    In the Matter of the Application of Ephraim B. Tillotson and another, as Overseer of the Poor of the Town of Cazenovia, Appellants, v. Edward Smith, to Compel the Support of James Smith, a Poor Relative, Respondent.
   Order of the Court of Sessions reversed and the proceedings remitted for further action, without costs. Opinion by

Board-man, J.


author: Follett, J.

text:
    The People of the State of New York, Respondent, v. William H. Gibbs, Appellant.
   Conviction and judgment affirmed and proceedings remitted to Jefferson County Court of Sessions. Opinion by

Follett, J.


author: Hardin, P. J.

text:
    Mary E. Gray, Appellant, v. Ferris L, Mead and another, Executors, Respondents.
   —Judgment of the County Court of Schuyler county reversing the justice’s judgment affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Mary B. Phillips, as Executrix, Respondent, v. Edwin W. Phillips, Appellant.
   Judgment affirmed, with costs, on opinion ofWilliams, J.; Mem. by

Boardman, J.


text:
    William R. Olney, Appellant, v. George H. Blasier, Respondent.
   Judgment and order reversed and a new trial ordered in Oneida County Court, with costs to abide the event. Opinion by

Hardin, P. J.


text:
    William H. Harrison, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.
   Motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit, with costs. Opinion by

Boardman, J.


author: Boardman. J.;

text:
    Marcus M. Beeman, Respondent, v. George A. Banta, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Boardman. J.;

Mem. by Hardin, P. J.


author: Kennedy, J.,

text:
    The Union Cemetery Association of Westmoreland, Appellant, v. Amos Barnes, Respondent.
   Judgment affirmed on the opinion of

Kennedy, J.,

delivered at the circuit.


author: Boardman. J.

text:
    Alexander Buchanan, Appellant, v. The Rome, Watertown and Ogdensburgh Railroad Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Boardman. J.


text:
    William V. Havens, Appellant, v. John C. McCarthy, Respondent.
   Judgment reversed and anew trial ordered in the County Court of Onondaga county, with costs to abide the event. Opinion by

Hardin, P. J.


text:
    Jacob Edick and another, Respondents, v. Harvey A. Fults and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Board-man, J.


text:
    Emily P. Streeter and another, Appellants, v. John L. Ward, Respondent.
   —Judgment of the Oneida County Court affirmed, with costs. Opinion by

Follett, J.


text:
    Charles W. Osborn, Appellant, v. Nicholas P. Randall, Respondent.
   Judgment and order affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Charles H. Perkins, Respondent, v. John Thorp, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


author: Hardin, P. J.;

text:
    Equitable Aid Union, Appellant, v. Frank E. Hill and others, Respondents.
   Interlocutory judgment affirmed, with costs, with leave to the plaintiff to amend its complaint upon payment of costs of demurrer and of this appeal within twenty days. Opinion by

Hardin, P. J.;

Follett, J., not acting.


text:
    Charles K. Grannis, Appellant, v. Addie L. Hobby, Respondent.
   Judgment reversed and new trial ordered, with costs to abide the event. Opinion by

Boardman. J.


text:
    The First Baptist Church of Barnes Corners, Respondent, v. Charles E. Greenley, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Martin, J.,

text:
    Eleanor J. Chapin, Appellant, v. George C. Dimmock, Respondent.
   —Judgment affirmed, with costs, upon the opinion of

Martin, J.,

delivered at Special Term.


text:
    Mary L. Grant and another, by Guardian, Respondents, v. Jennie S. Keator and others, Appellants.
   Judgment affirmed, with costs against appellants. Opinion by

Hardin, P. J.


text:
    Lorenzo Howell, Respondent, v. Thomas R. Wright, Appellant.
    (See 41 Hun, 167.)
   Judgment and order affirmed, with costs, on the opinion of this court on the former appeal.


text:
    Eli D. Harrington, Respondent, v. The Village of Phœnix, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Follett, J.


text:
    Peter Pereaux, Respondent, v. The Oswego St. John the Baptist Society, Appellant.
   Interlocutory judgment and order affirmed, with costs, with leave to answer upon payment of costs of the demurrer and of this appeal within twenty days.


text:
    Charles F. Bitter, Respondent, v. The Onondaga County Savings Bank, Appellant.
   Judgment and order denying a new trial reversed and a now trial granted, with costs to abide the event. Opinion by

Boardman, J.


text:
    John G. Palmer, as Administrator of Harmon L. Wilber, Appellant, v. Thomson Kingsford, Respondent.
   Judgment affirmed, with, costs in the accounting action. Opinion by

Hardin, P. J.


text:
    John G. Palmer, as Administrator, Appellant, v. Thomson Kingsford, Respondent.
   In the trover action- judgment affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Julia A. W. Palmer, Appellant, v. Thomson Kingsford and another, Respondents, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Hardin, P. J.


text:
    Conrad Loos and others, Respondents, v. J. Foreman Wilkinson and others, Appellants.
   Judgment affirmed, with costs against appellants personally. Opinion by

Follett, J.


author: Learned, P. J.

text:
    The People of the State of New York ex rel. Nathan B. Warren and others, Respondents, v. Edward Carter and others, Appellants.
   Order affirmed, with costs. Mem. by

Learned, P. J.


author: Landon, J.

text:
    James W. Montgomery, Appellant, v. Charles Lee, Respondent.
   Judgment affirmed, with costs. Opinion by

Landon, J.


author: Bockes, J.

text:
    The Phœnix Mills, Respondent, v. James A. Miller, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Bockes, J.


author: Bockes, J.,

text:
    Albert W Fuller and another, Respondents, v. Catharine E. Craig, Appellant.
   Judgment reversed, new trial granted, referee discharged, costs to abide event, unless plaintiffs consent to deduct $250 from recovery, and if they so consent judgment affirmed, without costs of appeal. Opinions by

Bockes, J.,

and Learned, P J., dissenting.


text:
    William D. Jones, as Assignee, etc., Respondent, v. The Howard Insurance Company of New York, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.


author: Learned, P. J.,

text:
    Charles B. Myers, Administrator, etc., Respondent, v. James Cronk, Administrator etc., Appellant.
   Judgment modified so as to award a recovery of only $200 and interest from June 9, 1878; no costs of appeal. Opinions by

Learned, P. J.,

and by Bockes, J., dissenting.


text:
    Alexander M. Knowlson, Respondent, v. Laurence Moore, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Spencer Optical Manufacturing Company, Respondent, v. Frederick Jump, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    Simeon Cunliff, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    John Smith, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment affirmed, with costs, Opinion by

Bockes, J.


text:
    John Mahoney, Appellant, v. Daniel D. Warren and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Mary Sawyer, Respondent, v. City of Amsterdam, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.


author: Bockes, J.;

text:
    The Citizens’ Steamboat Company of Troy Respondent, v. The Albany and Greenbush Bridge Company, Appellant.
   Judgment and order affirmed^ with costs. Opinion by

Bockes, J.;

Landon, J., dissenting.


text:
    Ransom J. Horton, Appellant, v. George H. Dorr and others, Respondents.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    Hattie Spotten, Respondent, v. William H. Keeler, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Bockes, J.


text:
    James Steele, Respondent, v. John F. Masten, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


author: Landon. J.

text:
    Charles H. Wolston, Appellant, v. Philip W. Ham, Respondent.
   Judgment of the County Court reversed and that of the Justices’ Court affirmed, with costs. Opinion by

Landon. J.


text:
    Ida C. Henderson, Respondent, v. Sarah A. Coyle, Appellant, Impleaded, etc.
   —Judgment and. order affirmed, with costs. Opinion by

Bockes, J.


text:
    Henry Fikes, Respondent, v. John Bouck, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


author: Learned, P J..

text:
    Charles Moon, as President, etc., Appellant, v. John D. Worth, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P J..


text:
    Lydia M. Ballon, Respondent, v. Isaac Purqua, Appellant.
   Judgment reversed on payment by defendant of costs of trial and appeal, otherwise affirmed, with costs. Opinion by

Bockes, J.


text:
    William Crandall, Respondent, v. Frank Haskins, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Landon, J.


text:
    John Spickerman, Respondent, v. Adam McChesney, Appellant.
   Orders affirmed on opinion below, with ten dollars costs, without prejudice to renewal of application for stay on report of referee in plaintiff’s favor, and before decision in Court of Appeals in former action.


author: Learned, P. J.;

text:
    Henry Riddle, Appellant, v. Henry Saunders, Respondent.
   Judgment of County Court reversed; that of Justice’s Court affirmed, with costs. Opinion by

Learned, P. J.;

Bockes, J., dissenting.


text:
    Edmund H. Conklin, Plaintiff, v. Charles H. Tuthill, Defendant.
   —Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    John A. Thompson, Respondent, v. Rowland W. Hazard, Appellant.
   Judgment affirmed, with costs. Opinion by

Landon, J.


text:
    The People of the State of New York ex xel. Abel S. Myers v. John Barnes and others.
   Cause certified to Court of Appeals.


text:
    Albert W. Fuller and others, Respondents, v. Catherine E. Craig, Appellant.
   Cause certified to Court of Appeals.


text:
    Louis O. Goetchins, Appellant, v. Thadeus T. T. Adams, Respondent.
   Motion to dismiss denied.


author: Learned, P J.

text:
    Thompson Burton, Respondent, v. Orissa M. Tremper, Appellant.
   Order reversed and matter sent to Special Term for extra allowance, in its discretion. Mem. by

Learned, P J.


text:
    The People of the State of New York ex rel. Newton A. Calkins, Respondent, v. The Board of Supervisors of Greene County, Appellant.
   Judgment reversed and writ of mandamus refused, with costs. Opinion by

Landon, J.


author: Williams, J ;

text:
    The National Tradesman’s Bank, Appellant, v. Margaret Whetmore, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Williams, J ;

Landon, J., not acting.


text:
    G. Howard Jones, Plaintiff, v. Smith Hay and Frank H. Burrows, Defendants.
   Judgment affirmed, with costs, on opinion of Special Term.


text:
    Albert Burhans, Appellant, v. George A. Kerr, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    The Journal Company, Respondent, v William W Thompson, Appellant.
   Order affirmed, with costs. Opinion by

Learned, P. J.


author: Williams, J.

text:
    Lydia Mott, Respondent, v. Isaac Wayland Cook, Appellant.
   Judgment affirmed, with costs. Opinion by

Williams, J.


text:
    Willard E. Masten, Appellant, v. Jane E. Reilly and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


author: Learned, P. J

text:
    Isaac Purqua and others, Respondents, v. Joseph M. Purqua and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Learned, P. J


author: ‘Williams, J.

text:
    Julia A. Ellis, Respondent, v. Kate Purvis, Executrix, etc., Appellant.
   Judgment affirmed, with, costs. Opinion by

‘Williams, J.


text:
    Burwell B. Link, Appellant, v. The Town of Brunswick, Respondent.
   Judgment reversed, new trial granted, costs to abide the event. Opinion by

Learned, P. J.


text:
    Eliza Nearing, Respondent, v. Oliver B. Brown, Appellant.
   Judgment of County Court reversed and that of justice affirmed, with costs. Opinion by

Williams, J.


text:
    Ludwig Vauth, Respondent, v. Magdalena Landis, Appellant.
   Motion to resettle case and exceptions and for reargument denied.


text:
    Jane A. Sherman, Respondent, v. Thomas P. Sherman, Appellant.
   Motion to vacate stipulation and for further relief denied, with ten dollars costs.


text:
    Ephraim Tillotson and another, as Overseers of the Poor, etc., Appellants, v. Edward Smith, Respondent.
   Motion for restitution granted.


text:
    Walter I. Bustin, Respondent, v. John Moore, Appellant.
   Motion granted, with ten dollars costs, unless appellant serves proper papers and pays twenty dollars costs in twenty days.


text:
    The People of the State of New York v. John N. Schuyler.
   Ordered that execution of the judgment of the Oyer and Terminer of Otsego county takes place on the 10th day of November, 1887.


text:
    Lydia Vernum, Respondent, v. Andrew A. Wheeler, Appellant.
   Motion denied.


text:
    James Roney, Appellant, v Bruce S. Aldridge, Respondent.
   Motion denied, with ten dollars costs.


text:
    Ellen Eldredge, Respondent, v. J. Briggs Stanton, Appellant.
   —Motion for reargument denied.


text:
    Charles N. Stoutenburg, Appellant, v. Robert Stewart, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Martin, J., not sitting.


text:
    James B. Herbage v. The City of Utica.
   Order affirmed, with ten dollar's costs and disbursements.


text: Sophy H. Mason, Respondent, v. Catherine Dicks, Administratrix, etc., Appellant.


text:
    Same v. Same
   —Orders affirmed, without costs to either party.


text:
    Albert N. Russell and another, as Receivers, Respondents, v. The Schenectady Gas-Light Company, Appellant.
   Judgment affirmed, with costs.

Hardin, P. J., not sitting.


text:
    Fayette Williams, Appellant, v Charles B. Douglass and William M. Douglass, Respondents.
   Judgment affirmed, with costs.

Hardin, P. J., not sitting.


text:
    The Lake Ontario National Bank of Oswego, Respondent, v. David H. Judson and George Monroe, Appellants.
   Judgment affirmed, with costs.


text:
    The Lake Ontario National Bank, Respondent v. David H. Judson, Appellant.
   Judgment affirmed, with costs.


text:
    Charles W Bardeen, Respondent, v. Charles L. Wallace and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Dwight L. Sweet, Respondent, v. James N. Norris, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Follett, J., not sitting.


text:
    In the Matter of the Estate of Sophronia Morehouse, Deceased, Anna More, Appellant
   Orders of the surrogate of Onondaga county reversed, with ten dollars costs and disbursements, and proceedings remitted to the surrogate with leave to retax or make additional allowances upon proper proofs. (See sec. 2561, Code of Civil Pro.)


text:
    George Hayward, Respondent, v. John W. Sayer, Appellant.
   Judgment reversed and a new trial ordered, with costs to abide the event. Held, that the court erred in allowing an inquiry to be made of a witness as to whether he nad been accused of crime.


text:
    John McMillan, Plaintiff, v. The Delaware, Lackawanna and Western Railroad Company, Defendant.
   Motion for new trial denied, with costs.


text:
    Ariel S. Thurston, Executor, etc., Respondent, v. George D. Bartholemew, Appellant, Impleaded, etc
   —Judgment and orders affirmed, with costs.


text:
    George W. Beach, Appellant, v. Ann Steele, Respondent.
   Judgment affirmed, with costs.


text:
    John W. Alexander, as Assignee, etc., Respondent, v John and Hugh Lucky, Appellants.
   Motions denied.


text:
    David K. McCarthy and others, as Survivors, Appellants, v. Fred. E. Smith and another, Respondents.
   Judgment affirmed, with costs.


text:
    Fabian Schwartz, Respondent, v. Benjamin T. Babbitt, Appellant.
   Judgment affirmed, with costs.


text:
    Susan F. Brewer, as Administratrix, etc., Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment affirmed, with costs.

Martin, J., not sitting.


author: Barnard, P. J.

text:
    Albert B. Parker, Plaintiff, v Samuel Loring, Defendant.
   —Judgment for defendant upon submitted case, with costs. Opinion by

Barnard, P. J.


text:
    Pietro Fassi v. Maria Boringer.
   Judgment of County Court reversed, with costs. Opinion by

Barnard, P. J.


author: ;Shith, P. J.:

text:
    JOHN A. GETTY, Appellant, v. THE TOWN OF HAMLIN AND THE TOWN OF KENDALL, Respondents.

      Admissions in 'pleading — evidence tending to contradict them is inadmissible — Code of Civil PMcedure, sec* 522.
    This action was brought against the towns of Hamlin and Kendall to recover for injuries sustained by the plaintiS by reason of his being thrown from Ms wagon while driving upon a defective approach to a bridge, on a highway running north and south between the two towns, which was crossed by a stream over which the bridge was erected. It was averred in the complaint, and admitted in the answers, that the highway, including the bridge, was, at all points, upon the line between the towns, and that the bridge had been constructed by the two towns, and maintained by them for a number of years, next preceding the commencement of the action, at least up to the time of the injury.
    Upon the trial, when the plaintiff rested, a nonsuit was granted as to the town of Kendall upon' two grounds, one of which was that evidence, admitted against the objection of the plaintiff, showed that owing to a deflection in the line of the highway, at or near the point where the bridge was built, the bridge was wholly in the town of Hamlin.

      Held, that the court erred in admitting the evidence, as it contradicted the admissions made in the pleadings.
    The other ground was that there was no proof that the commissioner of that town had funds with which to repair. Upon the trial evidence was given tending to prove that one of the commissioners had procured some materials to make the repairs shortly before the accident, and that on the morning after it occurred the commissioners of both towns made the needed repairs.

      Held, that the court erred in taking the case fro.m the jury, as the jury might, from this evidence, have inferred that the commissioners had the requisite funds or means to repair before the accident happened, and for the further reason that the burden of showing a lack of funds rested upon the defendants and not upon the plaintiff.

      JMdwell v. Town of Murray (40 Hun, 190) followed.
    After the nonsuit was granted to the town of Kendall the town of Hamlin was permitted, against the objection of the plaintiff; t.o introduce evidence tending to show that, although the bridge was solely in Hamlin, that part of the road in which it was situated had been allotted to the town of Kendall, under the provisions of section 75 of 1 Revised Statutes, 517, to keep in repair.

      Held, that as the evidence contradicted the admissions of the answer the court erred in admitting it.
    The question as to whether it was competent for the two towns to' allot to one of them the care of the bridge, so as to relieve the other from responsibility to the public in respect to its condition, was not decided.
    Appeal from a judgment entered upon a nonsuit ordered at the Monroe Circuit, and from an order denying a motion for a new trial made upon a case. . •

      J. D. Decher, for tbe appellant.

      J. M. D my j for the'fespbndentsh
   ;Shith, P. J.:

Action to recover for injuries received by plaintiff on tbe 26th of April, 1884, by being thrown from bis wagon while driving upon a defective approach to a bridge, on a highway running north and south between the towns of Hamlin and Kendall, known as the ■town line road. The highway is intersected by a stream called “ Sandy Creek,” over which the bridge is erected, forming a part of the highway. The theory of the action is that the two defendant ■towns’ are jointly liable for the construction and maintenance of the bridge and its approaches, and that by the negligence of said towns .and their respective commissioners of highways the said approaches were suffered to be out of repair, whereby the injuries complained of were caused. ■ • ■ •

At the trial, when the plaintiff rested a nonsuit was granted as to the town of Kendall. The trial then proceeded as against the town of Hamlin, and at the close of the evidence a nonsuit was granted as .to that town also. The grounds of the nonsuit as to the town of Kendall were that there was no proof that the commissioner of that town bad funds with which to repair, and that it appeared in evidence that owing to a deflection in the line of the highway at or near the point where the bridge was built, the bridge was wholly in the town of Hamlin. After the nonsuit was granted as to the town of Kendall the defense gave evidence tending to show that although the bridge was solely in Hamlin, that part of the road in which it was situated had been allotted to Kendall, under the statute (1 K. S., 517, § 75), to keep the same in repair, and on that ground a nonsuit was granted as to Hamlin. Thus it happened that the plaintiff, after having made a _ case which would have authorized the jury to find that the injuries which he had sustained resulted, from defects in the approaches to the bridge, without negligence on his part, was turned out of court, not upon the ground that no liability was shown on the part of the defendants or either of them, but, first, upon tlje motion of Kendall, on the ground that Hamlin was exclusively hable, and next, upon the motion of Hamlin, on the ground that the liability rested upon Kendall alone.

That result was produced by what we regard as the erroneous admission of evidence offered by the defendants in contradiction of their admissions in the pleadings: The complaint alleged that said towns are divided or separated by a public highway, commonly known as the county line road;” that across said highway is a creek; that over said creek is a bridge for passage by those traveling upon said highway; and that said bridge had been constructed and maintained for a number of years last past across said creek in said highway by said towns. Those allegations were admitted by the answer of both defendants; The complaint also alleged that said towns are jointly liable to maintain said bridge and keep it in repair at their joint expense. That allegation was denied. The latter allegation was, obviously, a mere conclusion of law, and its denial did not operate to limit or qualify the admission of the facts previously alleged. One of those facts was that the highway, of which the bridge formed a part, divided the towns. But the defendants were permitted to prove, in the face of their admission of that fact, that a portion of such highway, including the bridge, did not divide the towns, hut was wholly in Hamlin. ¥e regard that evidence, and the evidence of the allotment of the bridge to - Kendall, as directly opposed to the admissions in the pleadings. Tbe averments in the complaint, which are admitted in the answer, are, in substance, that the highway, including the bridge, was, at all points, upon the line between the towns, and that the bridge had been constructed by the two towns, and maintained by them for a number of years next preceding the commencement of the action, or at least up to the time of the injury. From these facts not only the liability of the two towns to repair resulted as a legal conclusion, under the statutes and the adjudications of the .courts applicable to the subject (1 R. S., 501, § 1; Laws 1841, chap. 225, § 1, as amended by Laws 1857, chap. 383, § 1; Lapham v. Rice, 55 N. Y., 472; Day v. Day, 94 N. Y., 153), but it also appeared conclusively that they had recognized such Lability and acted upon it for several years.

The allegations referred to were material to the cause of action, and not having been controverted in the answer, the statute requires that they be taken to be true for the purposes of the action. (Code, § 522.) In accordance with the statute, it has been held that whatever has been admitted in the pleadings cannot be contradicted in the subsequent pleadings, on the trial, or in the verdict. (Crosbie v. Leary, 6 Bosw., 312; Thomas v. Austin, 4 Barb., 265 ; Paige v. Willet, 38 N. Y., 28.) And a judgment contrary to the admissions of the pleadings must be set aside. (Bridge v. Payson, 5 Sandf., 210.)

The evidence in question was objected to by the plaintiff’s counsel on the ground that it contradicted the pleadings. Evidence that the bridge was in Hamlin was first offered on the cross-examination of one of plaintiff’s witnesses, and it having been objected to on the ground above stated, it was received, as the case states, as proper on cross-examination, but not to have- the effect of contradicting any fact admitted by the pleadings. That it did have that effect, however, is apparent, if we áre right in the view we have taken of the substance of the allegations in the complaint.

Upon the question whether the commissioners of Kendall had funds applicable to the reparation of the approaches to the bridge, we thing there was evidence to go to the jury. There was proof that one of the commissioners had procured some materials to make the repairs shortly before the accident, and that on the morning after it occured the commissioners of both towns made the needed repairs. From that eyidence it was competent for the jury to infer that the commissioners had the requisite funds or means to repair before tbe accident happened, even if it was incumbent on the plaintiff to show that the commissioners had funds or the power to obtain them. But it has been held frequently that the lack of funds is matter of defense, and the burden of showing it is on the defendant. (Bidwell v. Town of Murray, 40 Hun, 190, and eases cited by Bradley, J., p. 196.)

The respondent’s counsel contends that unless a joint liability was shown, the nonsuit was proper. Upon that question also, it is unnecessary to pass, and we do not decide it. For, as has been said, the facts admitted by the answer, in the view which we • take of them, conclusively establish a joint liability.

Still another question, discussed by the trial judge in his opinion denying a new trial, we do not consider, and that is whether it was competent for the two towns to allot to one of them the care of the bridge so as to relieve the other from responsibility to the public in respect to its condition. (Day v. Day, supra.)

In the present state of the pleadings, as we regard them, that question and the others which we have mentioned only to say that we give them no consideration, do not arise. For the error above pointed out a new trial must be ordered. It may be that before another trial the defendants may amend their answer by leave of the court, so as to make the evidence admissible to which we have adverted. We cannot anticipate the questions of law which may then arise, and any further discussion of the case at the present time would be premature.

The judgment and order should be reversed and a new trial granted, costs to abide event.

Haight and Beadlev, JJ., concurred.

Judgment and order reversed and new trial granted, with costs to abide event.


author: Smith, P. J.:

text:
    MARY B. BOUTON and Others, Appellants, v. CARRIE THOMAS, Executrix, etc., of EMMETT LEGERN, Deceased, AND FRANK WHITE, Respondents.

      Discretionary power of sale — when it does not vest the title in the exeautors — right of the remaindermen to maintain an action for waste against the life tenant.

    This action was brought by the plaintiffs, claiming as remaindermen under the will of one Legern, to recover for waste alleged to have been committed or directed by a tenant for life. The will, after directing the payment of debts and specifying certain bequests and devises, among which was an estate for life in certain real estate, gave the residue of his estate, real and personal, to his “heirs, to be equally divided between them, share and share alike, including my wife,” and by a subsequent clause gave all his real and personal estate, of whatever nature or kind, to his executors in trust for the payment of the debts and legacies, with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms and in such manner, as to them should seem meet. Upon the trial a motion to dismiss the complaint was made by the defendants, upon the ground that the plaintiffs had not shown either title or possession of the premises and could not maintain the action.

      Held, that the court erred in granting the motion.
    That tbe trust to pay debts and legacies vested no estate in the trustees, as they were not authorized to receive the rents arid profits, nor entitled to the possession of the real estate, and that, until the execution of the power, the fee was in the heirs subject to the estate of the tenant for life.

      It seems, that if this were a case in equity the judgment appealed from might have been sustained upon the doctrine of equitable conversion, as the gift of the use of the land to the tenant for life was accompanied by an imperative direction that upon his death such land should be sold by the executors, or the survivor of them, and be divided equally among the heirs.
    Appeal from a judgment of nonsuit, ordered at tbe Cayuga Circuit.

      John L. Pwker, for tbe appellants.

      John E. Grojjsey and U. Greenfidd, for tbe respondents.
   Smith, P. J.:

The plaintiffs, claiming as remaindermen or reversioners under tbe will of John C. Legern, deceased, seek to recover in this action for waste alleged to have been committed or directed by tbe life tenant. Tbe will, after directing tbe payment of the testator’s debts and specifying certain devises and bequests, gave tbe residue of tbe estate, real and personal, to “ my beirs to .be equally divided between them, share and share alike, including my wife,” By a subsequent clause it gave “ all my real and personal estate of what nature or kind soever to Emmett Legern, Sarah A. Legern and Giles M. Stoddard, the executors of this my last will and testament, hereinafter nominated and appointed, in trust for the payment of my debts and the legacies above specified, with power to sell and dispose of the same at public or private sale, at such time or times and upon such terms and in such manner as to them shall seem meet.” Among the specific devises was one of a life estate in the real estate in question to the said Emmett Legern, who was one of the original defendants in this action.. He having died his executrix, Carrie Thomas, was substituted in his place. At the trial the plaintiffs put the will in evidence, and when they rested the defendants moved for a nonsuit upon the ground, as the case states, that the plaintiffs “ have shown neither title nor possession to the premises in question, and for that reason they cannot maintain this action.” The court granted the motion upon the ground, as the case also states, that the title was in the trustees and not in the heirs.

In that we think the learned justice was in error. The trust was to pay debts and legacies. Under the statute it was good as a power in trust to sell and apply the proceeds to that purpose’ (1 R. S., 728, § 55, sub. 1, 2), but the trustees were not authorized to receive the rents and profits, nor were they entitled to the .possession, and, therefore, no estate vested in them, (1 R. S., 729, § 56.) Until the execution of the power the fee was in the heirs subject to the life estate of Emmett Legern. (Id., §§ 56, 59.) This view of the statutes cited is sustained by numerous adjudications, among which are Boynton v. Hoyt (1 Den., 53), Germond v. Jones (2 Hill, 569); De Peyster v. Clendining (8 Paige, 295); Manice v. Manice (43 N. Y., 303, 364); Chamberlain v. Taylor (105 id., 185). The Revised Statutes gave to a person seized of an estate in remainder or reversion the right to maintain an action of waste or trespass, for any injury done to the inheritance, notwithstanding any intervening estate for life or years. (1 R. S., 750, § 8.) That right, we understand, is continued by the Code of Civil Procedure (§§ 1651, 1652, 1655). The waste in this case consisted in cutting down growing trees.

If this were a case in equity 'the judgment appealed from might, perhaps, be sustained upon the doctrine of equitable conversion. The land was given to the executors in trust for the payment of debts and legacies, with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms, and in such maimer as to them shall seem meet.” And by a previous clause, the gift of the use of the land in question to the son Emmett, for life, was accompanied by a provision that upon his death, such land be converted into money by the executors, or the survivor of them, and divided equally among the heirs. Although the executors were to exercise their discretion as to time, manner and terms, the direction to sell upon the death of the life tenant, we think, was imperative and not discretionary, so that, in equity, the heirs would be regarded as taking the property as money and not as land. (Stagg v. Jackson, 1 Comst., 206, opinion of Jewett, Ch. J., p. 212, and authorities there cited by him; 1 Jarm. on Wills [3 Am. ed.], 481, m. p., 529 ; Moncrief v. Ross, 50 N. Y., 431.) But as the controversy in this action relates to the legal title only, the doctrine of equitable conversion has no application.

It is now contended by the respondents’ counsel that there is no evidence that the plaintiffs are heirs of the testator.. The point does not appear to have been suggested at. the trial. On the contrary, the fact of the plaintiffs’ heirship seems to have been assumed without dispute. ~We think that for the error above pointed out there should be a new trial, when the question of heirship, if there is any real dispute about it, can be distinctly litigated.

The judgment should be reversed, and new trial ordered, costs to abide event.

BahKeh, Haight and Bbabley, JJ., concurred.

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


text:
    DUANE EARL, Respondent, v. GEORGE W. LEFLER, Appellant.

      Evidence — a/n impression of the mouth of a horse to prone Ms age is admissible— when a judgment of a Justice’s Court will not be reversed because of the admission of erroneous evidence.

    Upon tie trial of this action, brought for an alleged breach of warranty as to the age of a horse upon its sale to the plaintiff by the defendant, after several witnesses had [testified as to the extent to which the appearance of a horse’s teeth indicate his age, a veterinary surgeon was called by the plaintiff, who testified that he had taken an impression of the mouth of the horse, which he produced in court at the trial.1

      Held, that the court did not err in overruling the defendant’s objection to the admission of the impression in evidence.
    That such an impression in plaster, wax or any other suitable substance, might be classed, as a species of evidence, with diagrams, drawings and photographs.
    The admission in a Justice’s Court of incompetent testimony, to establish a fact clearly proved by other testimony of a competent character, is not such an error as requires the County Court to reverse the judgment rendered in the Justice’s Court on an appeal taken therefrom.
    This rule is applicable to appeals from judgments of the Municipal Court of the city of Rochester.
    Appeal from a judgment of tbe Monroe County Court, affirming a judgment of tbe Municipal Court of tbe city of Rochester.

      L. I. Grosby and George Bovosn, for tbe appellant.

      George W. Hall, for tbe respondent.
   Smith, P. J.:

Action for an alleged breach of warranty in a horse trade. There was evidence tending to show that tbe defendant warranted tbe horse which he let the plaintiff have, to be kind and sound in every respect and eight years old, but-that in fact he was unsound, vicious and at least sixteen years old. The plaintiff recovered $200 damages. The appellant contends that the trial court erred in rulings upon the admission and rejection of testimony.

One of the issues was as to the age of the horse at the time of the trade. Several witnesses testified as to the extent to which the appearance of a horse’s teeth indicates his age. Cook, a veterinary surgeon, called by the plaintiff, testified that he had taken an impression of tbe month of the horse in question which he produced at the trial. The plaintiff offered it in evidence, and it was received against the defendant’s objection that it was incompetent and irrelevant. We think the objection was properly overruled. Such 'an impression in plaster, wax or any other suitable substance, may • be classed as a species of evidence with diagrams, drawings and photographs. It is argued by the appellant’s counsel that the impression in question, may have been inaccurate and misleading, as there was no proof that it was taken at a time near the date of the trial, or that it was an exact or correct impression. The objection to its admission was not put on those grounds; if they had been specified, they might have been obviated. The objection was general, and was equivalent to saying that under no circumstances is an impression of that nature competent evidence. If the impression in question was taken at a time too remote, or was incorrect in any respect, the defendant might have cross'-examined the witness in those respects, but he did not.

The plaintiff put in evidence what is termed in the printed case a “ chart,” showing the formation of the mouth of a horse, published by a professor in a veterinary college in the city of - New York. It is contended that the reception of it was error. Whether it was so or not, and whether if erroneous, its reception harmed the defendant in view of all the evidence, are questions which we cannot determine, for the reason that the chart is not contained in the case.

A witness called by the plaintiff was asked the following question : What do you say would have been the value of this horse if he had been as represented, sound, kind and true, and gentle in harness as any woman or child could drive; and eight years old, coming nine ? ” An objection to the question was overruled and the witness answered: “ From the representation that he speaks of, I should say it was worth $300 or $400 or $350.’ He was then asked: “ What would you say would be his value if, as he has been represented here by witnesses with reference to his unsoundness and ids age, and being balky and unkind, or from the description of the witnesses of the action of this horse?” The witness answered: “ From the witnesses you have mentioned, I should not consider him worth over $100, from their testimony.” The first question was hypothetical, based upon facts proved, or which the plaintiff had the right to assume were established by the testimony, and it was proper. The second question was improper, for the reason that it left the witness to determine what had been established by the previous testimony; and it is impossible to ascertain, either from the question or the answer, upon what state of facts the answer was based. Testimony of the -like faulty nature was received in some other instances. But there was other testimony in the case, entirely competent and proper, furnishing an ample basis for the amount of damages recovered; so that if the objectionable evidence were eliminated from the case, the judgment would be well supported^ In these circumstances, we think the County Court properly declined to reverse the judgment on account of the reception of the improper evidence referred to. 1 The provisions of the statute respecting appeals from Justices’ Courts require the appellate court to “ render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits.” (Code, § 3063.) Appeals from judgments of. the Municipal Court of the city of Bochester are with the like effect as appeals from judgments obtained in Justices’ Courts. (Laws 1811, chap. 192, § 2.) It has frequently been held that the admission in a Justice’s Court of incompetent testimony, to establish a fact clearly proved by other testimony of a competent character, is not such an error as requires the County Court to reverse the judgment. (Bort v. Smith, 5 Barb., 283; Spencer v. Railroad Co., 12 id., 382; Buck v. Waterbury, 13 id., 116; Milliner v. Lucas, 3 Hun, 496.)

We have examined the other points made by the appellant’s counsel, and think they are without merit.

The judgment should be affirmed.

Bradley and Childs, JJ., concurred.

Judgment affirmed.


author: Bradley, J.:

text:
    DAVID WRIGHT, Plaintiff, v. NELSON B. ELDRED, Defendant.

      Flooding of lands, Try direction of the legislature, for the purpose of supplying water to the canals — when the necessa/ry steps, essential to the acquisition of the right so to do, will he assumed to ha/ce been taken — section 185 of 11Revised Statutes, 250, only applies to hydraulic corporations who depend upon the canals for their supply of water — when a discretionary powe/r conferred upon the superintendent of public works can be delegated to another.

    This action, brought by the plaintiff, the owner of a farm on the west side of Owasco lake, to recover damages alleged to have been caused by the erection of flush boards or gates on a dam at the outlet of the lake, was defended upon the ground that the right to thus obstruct the flow of the water in the outlet had been appropriated by the State for the purpose of supplying water to the Erie canal, under acts of the legislature authorizing the canal commissioners to appropriate to the State the dam then existing across the outlet, with the right to increase its height, or otherwise raise the water above it to such height as the commissioners should establish, and the right to draw water therefrom under such regulations as might from time to time be established by the canal commissioners, and under other acts making appropriations for the said work and for the building of a new dam, under which latter act the present dam was constructed and supplied with flush gates.

      Held, that while it was not proved that action had been taken by the canal commissioners and drafts, plans or maps, etc , submitted to the canal board, having particular reference to the provisions of these acts, yet, as it did appear that the work proceeded and was consummated pursuant to subsequent legislation, it would be assumed that the legislature was informed as to, and had adopted that which had been done to effectuate what had been provided for.
    The defendant’s authority to act in the matter was derived from a letter, written by the assistant superintendent of public works, by the terms of which he was authorized or requested to close the gates when the water lowered sufficiently, and to open them temporarily when it should become necessary, the authority so given him by the assistant being approved by the superintendent of public works. The plaintiff claimed that the defendant was, by reason of the fact that he was a director and the superintendent of the Auburn Water-works Company, ineligible to the office under the provisions of section 185 of-1 Revised Statutes, 250, providing that no person owning any hydraulic works dependent upon the canals for their supply, or who shall be employed in or connected with any such works, shall be employed as superintendent, lockkeeper, collector of tolls, weigh-master or other agent upon the canals.

      Held, that, as by the terms of the act conferring authority upon the State to make the appropriation, it was made subject to the use of the water for hydraulic purposes by the owners of such dam at the time of the appropriation, as the same should from time to time be drawn from the dam, and as the water-works company then had-been and was taking its water from there, and had continued to do so since, it was not “ dependent upon the canals” for their supply of water' within the meaning of the section of the Revised Statutes above cited, and that that section did not apply to the defendant or disqualify him from acting.

      Held, further, that the relation given to the defendant by the letter of authority and assumed by him, did not come within the rule which does not permit a person charged with official duty or authority involving the exercise of judgment or discretion, or with an agency of personal trust and confidence, to delegate it to another, as applied to this case.
    Motion by' plaintiff for a new trial on exceptions taken at the Caynga Circuit, and ordered to be heard at the General Term in the first instance.
    The action was brought to recover for injury to the plaintiff’s premises, alleged to have been caused by the act of the defendant in setting water back onto them. The defendant, who was a director and the superintendent of the Auburn Water-works Company, attempted to justify his action by producing a letter written by the assistant superintendent, and approved by the superintendent of public works, authorizing him to do the acts complained of.

      H. V. Howlcmd, for the plaintiff.

      Oliarles M. Bdicer, for the defendant.
   Bradley, J.:

The plaintiff’s farm is on the west side of Owasco lake, and the evidence tends to prove that by means of flush gates on the upper dam in the outlet of the lake the water was set back, raising it in the lake and outlet so as to injuriously affect the use of, the plaintiff’s land for productive purposes. And for such injuries, sustained in the years 1882 and 1883, he seeks to recover in this action. The defense is that the dam and the right to thus obstruct the flow of the water in the outlet had been appropriated by the State for the purpose of supplying water to the Erie canal, and that the defendant, in what he did, was acting under the authority of the officer of the State having the power to direct to be done the acts complained of. It appears that the State made provision for the improvement of the outlet of the lake in the years 1852, 1853 and 1854, but its purpose does not very clearly appear although it seems to have had some relation to the uses and purposes of the State prison at Auburn. (Laws 1852, cbaps. 193, 309; Laws 1853, chap. 175; Laws 1854, chap. 397.) By Laws of 1855 (chap. 539) there was an appropriation made to be expended under the direction of the canal commissioners in completing the improvement of the outlet, and by Laws of 1857 (chap. 524) it was provided that for the purpose of completing the improvement commenced pursuant to chapter 193 of Laws of 1852, before referred to, the canal commissioners were authorized to appropriate to the State the upper dam across the outlet, with the right to increase the height of the dam, or otherwise raise the water above it to such height as the commissioners should establish, and the right to draw water therefrom under such regulation as might from time .to time be established by the canal commissioners, for which an appropriation was made. And the next year, to cover deficiency, a further appropriation was made for the purpose. (Laws 1858, chap. 328.) The evidence tends to prove that the State proceeded with the improvement pursuant to the provisions made by the acts referred to. Afterwards a portion of the dam .was carried away. And by Laws of 1871 (chap. 778) an appropriation was made for the reconstruction of the race and feeder on the outlet, and by chapter 930 of the laws of the same year, a further appropriation was made for the construction of a bulkhead or other adequate structure in the outlet for the purpose of storing water in the lake for the use of the canal to be expended under the direction of the canal commissioners in charge of the middle division of the Erie canal. Pursuant to these provisions the dam was repaired and the work provided for done for the purpose mentioned, and flush boards about two feet in width were put on the dam.

By Laws of 1874, chapter 399, an appropriation was made to rebuild the dam on the outlet, pursuant to which there was a new dam constructed and supplied with flush gates two feet in height, which could be raised to let the water off or lowered to hold it back to that height above the crest of the dam.

It is contended by the plaintiff’s counsel that it does not appear that there was any right or authority to put those 'flush boards or gates upon the dam, because no evidence is produced that the State proceeded to appropriate the dam and the right to thus raise the water, pursuant to the act of 1857, in the manner provided by the statute. (1 R. S., 220, § 17.) While it was not proved that action was taken by the canal commissioners, and drafts, plans or maps, etc., submitted to the canal board, having particular reference to the provisions of the act of 1857, it does appear that the work proceeded and was consummated pursuant to subsequent legislation, which it may be assumed was had upon the legislative information and adoption of that which had been done for the purpose in view, and to effectuate what had been provided for. And the work that followed having been within legislative authority evinced by appropriations, etc., it will be deemed to have been within the requisite power of the State, and that with which its officers' performing it were duly vested for the purposes of the question here. (Baker v. Johnson, 2 Hill, 342; Turrell v. Norman, 19 Barb., 263.)

The property appropriated was not that of the plaintiff, but his property was affected by the use of that taken by the State. And his remedy would seem to have been that of presenting and asserting his claim against the State in the manner which the statute permitted. It appears that the repair of the dam and providing the bulk-head and flush boards for it were done under the immediate direction of' the canal commissioner having charge of the middle division of the Erie canal, and was done to supply water to the Port Byron level of that canal. And that the map, plan and estimated expense of the new dam of 1874 were made by the engineer and submitted to and adopted by the canal board; and that the work was advertised and the contract for its performance awarded and let by-the canal commissioners. The plan of the work so made and submitted embraced that of the flush gates put upon the dam. The effect of the use of those gates is the cause of the plaintiff’s complaint. For the purposes of this case it is unnecessary further to consider the power of the State under the statutes referred to, and its exercise, to make the use of the means so provided for storing the water in the lake for canal purposes.

It is, however, insisted, on the part of the plaintiff, that whatever-may have been the authority of the superintendent of public works in making application and use of those flush gates, the defendant was without authority in that respect; and that he is liable for the consequences of his act in lowering or closing them, because: (1.) He was ineligible; and, (2.) -The authority sought to be given him, and which he assumed, was discretionary in character. The defendant’s authority was derived from a letter of March 25, 1881, written him by the assistant superintendent of public works, by the terms of which he was authorized or requested to close the gates when the water lowered sufficiently, and to open them temporarily when it should become necessary. This letter was in answer to one from the defendant of the eighteenth of the same month, stating that all the gates were then raised; and that if the assistant superintendent wished to delegate to him the authority to do so, he would close them when the water lowered sufficiently. It appears that into February, 1881, the gates remained closed, when the defendant raised them, as he says, upon his own authority, for the protection of property.” And he continued to have the charge of the flush gates, and they were raised and closed by his direction until February, 1881. The authority given him by the assistant had the approval of the superintendent of public works. The statute provides that no person owning any hydraulic works dependent upon the canals for their supply, or who shall be employed in or connected with any such works, shall be employed as superintendent, lock-keeper, collector of tolls, weighmasteiyor other agent upon the canals. (1 R. S., 250, § 185.)

The purpose of. this, statute evidently was to exclude from the control or management of the canals all persons having interests adverse to those of the State in the use of the waters of the canals. And when the case of Shaver v. Eldred (38 Hun, 632) was before this court it was assumed that the water-works company was dependent for its supply of water upon the canal, or took water to which the canal was entitled, and that the defendant was within the class of persons excluded by the statute from the relation which his appointment purported to give him, and, therefore, could not lawfully take or exercise the discretionary power which the letter of authority seemed to give him. But it now appears, by the Laws of 1851 (chap. 521), that the appropriation authorized by that act to be made by the State was subject to the use of the water for hydraulic purposes by the owners of such dam at the time of the appropriation, as the same should from time to time be drawn from the dam. The water-works company then had been and was taking its water from there, and has continued to do so since; and it is taken by means of a race-way over twenty feet wide, having its sill five feet below tbe crest of tbe dam, and it is controlled independently of the dam although its supply is supported by it. It, therefore, seems that the water-works company does not take its supply from the canals within the meaning of the statute, and that its interest is not hostile to that of the State in that respect. It does not now appear, nor can it fairly be inferred from the record before us, that the interest of the defendant or of the water-works company, so far as related to the supply of water, was involved in the. discretion with which he was apparently invested of determining when the gates should be opened or closed. The flush gates were provided to hold water above the crest of the dam solely for the benefit of the canal, and do not seem to have been required for the supply of the water-works company race-wayand it does not appear that, for the purpose of the continued supply of the company, it was necessary to hold the water, by way of storage at any time, to a height greater than the crest of the dam, nor does it appear that the company did not have and exercise the right to take its supply of water without reference to the needs of the canal or the condition of the water in it. These facts distinguish this from the Shaver ease, as it was presented.

We think the relation given to the defendant by the letter of authority and assumed by him, did not come within the rule which does not permit a person charged with official duty or authority involving the exercise of judgment or discretion, or with an agency of personal trust and confidence to delegate it to- another, as applied to this case. As before-suggested it must upon the facts presented be assumed that the State had appropriated the right to maintain the flush gates two feet.high upon the dam, and to retain the water which, when closed, they would hold back. The power given for the exercise of authority within such established right can hardly be treated as discretionary to the prejudice of a party affected by it.

The defendant did no mox’e, and he may be deemed to have legitimately acted under the authority and direction of the superintendent of public works, and therefore incurred no personal liability. (Waggoner v. Jermaine, 7 Hill, 357.) The facility of raising and-closing the gates was evidently provided that they might be raised temporarily in time of high water or flood, so as to pex’mit the surplus water to pass off, and to be kept closed at other times. The exercise of the discretion in raising them was to the advantage of those owning property above the dam along the lake, its inlet and outlet. The evidence does not permit the conclusion that the defendant acted in bad faith or unreasonably to the prejudice of property owners in the exercise of the authority vested in him, but it does appear that he raised the gates for the water of the spring and other freshets to.pass off, and closed them when the high water subsided. And at all times in the exercise of his authority kept within the right appropriated by the State. The fact is evident that all the places along the canals, requiring attention and some discretion, cannot respectively have the constant personal care and direction of the superintendent and the three assistants whom, by the Constitution he is permitted to appoint, but such care and operation of many things requiring the exercise of some judgment must necessarily be left to persons employed for the purpose under and within general instructions; and such are the employment and authority in question,, and the instructions within which the defendant has acted.

The plaintiff’s claim -for damages rests upon his challenge of the right of the State to use flush boards or gates of the height of two feet upon the dam. Whether the State is chargeable to him for the consequences thus occasioned to his land is a question not necessarily here for consideration. None of .the exceptions seem to have been well taken.

The motion for a new trial should be denied, and judgment ordered on the verdict for the defendant.

Haight, J., concurred; Smith, P. J., not- voting; Barker, J., not sitting.

Motion for new trial denied, and judgment ordered for the defendant on the verdict.


text:
    JAMES SARGENT, Appellant, v. THE EUREKA SPUND APPARATUS COMPANY, Respondent, Impleaded with MARVIN WARREN.

      When a purchaser talces subject to the rights of a prior assignee — he is not entitled to protection as a bona fide purchaser beyond the amount actually paid before notice.

    When a purchaser is advised of a prior claim of another which denies to the seller, as against such other person, the right to make the sale, he should desist from proceeding further to complete his purchase, or if he thereafter proceeds in performance of his contract, he should do so subject to the equities of the party in whom rests the prior right. The character of a bona fide purchaser is not acquired unless the whole amount of the purchase-money is paid before the purchaser becomes chargeable with notice of the outstanding equity. So far only as the part performance is made in good faith, and no further, he may have protection or indemnity for reimbursement, and for that purpose a lien for the amount so paid.
    The cases bearing upon this question cited by Bradley, J.
    On February 2, 1885, one Warren, the inventor of what is called the “Eureka bung,” assigned the invention to Bigelow, who, on June 19,1885, assigned to the defendant company the letters-patent therefor which had been issued on June 16, 1885. Prior to the assignment to Bigelow an agreement had been made by Warren with the plaintiff, which, as between Warren and the plaintiff, gave to the latter rights which were violated by the assignment to Bigelow. Bigelow had no notice of this agreement until April 14, 1885, before which time he had paid upon the agreement, pursuant to which the assignment was made, $983.76, and had incurred a liability to pay to others the further sum of $653.87, the aggregate of which was, however, less than the amount which Bigelow had agreed to pay for the invention.

      Held, that the company was only protected to the extent of the money actually paid and the liability incurred by Bigelow at the time he was notified of the agreement made with the plaintiff.
    Appeal from a judgment entered upon tbe decision of tbe court at tbe Monroe Equity Term dismissing tbe complaint on tbe merits.

      J. <& Q. Van VoorMs, for tbe appellant.

      J. N. Beeldey, for the respondent.
   Bradley, J.:

• Tbe only question which seems here to require consideration is whether Bigelow, tbe defendant’s assignor, was a bona fide purchaser from "Warren of the improvement called the “ Eureka bung,” of which "Warren was the inventor, and what consequence may follow its determination.

The invention of the projected apparatus was assigned by "Warren to Bigelow February 2, 1885. The letters-patent were issued June sixteenth, and on June 19, 1885, Bigelow assigned to the defendant company. Prior to the assignment to Bigelow an agreement had been, made by "Warren with the plaintiff which as between them gave to the latter rights which were violated by the assignment to Bigelow. These are assumed to be the facts upon the findings of the trial court for the purpose of this review, and it was there found that Bigelow had no notice of the agreement giving such right to the plaintiff until April' 14, 1885, and that before then he had paid upon the agreement, pursuant to which the assignment was made to him by "Warren, $983.76, and had incurred liability to pay others $653.87. These sums did not constitute the full amount Bigelow was required by the agreement to pay for the improvement. They were a part only of the purchase-price. The inquiry therefore arises as to the effect of partial performance only on the part of the purchaser, before notice of a prior equity or right of another in respect to the subject of the sale. It will be assumed that if Bigelow had, before he was chargeable with notice of such right of the plaintiff, paid the entire purchase-price his title >?ould be protected. It is otherwise if he had such notice before his relation of Iona fide purchaser was established. The trial court held that he was such at the time he was advised of the situation, although he had then paid a portion only of the purchase-money, and cites Werner v. Barden (49 N. Y., 286). That case does not seem- to support the proposition, nor do the cases cited by the defendant’s counsel necessarily sustain his contention in that respect. The character of iona fide purchaser must be completed before his title will have protection as against an outstanding equity. And his payments or performance subsequent to the time he becomes affected by notice of it will be treated as in his own wrong, and not available as against such equity for any purpose.

The better reason would seem to be in support of the doctrine that when a purchaser is advised of a prior claim of another which denies to the seller, as against ‘him, the right to make the sale, he should desist from proceeding further to complete his purchase, or if he thereafter proceeds in performance of his contract, do so subject to the equities of such party in whom rests the prior right; otherwise such outstanding rights may be defeated with a facility seemingly unreasonable as well as unjust. It might be accomplished by the payment of any amount of the purchase-money before notice and in good faith. The view here entertained is that the character of bona fide purchaser is not completed unless the whole amount of the purchase-money is paid before the purchaser becomes chargeable with notice of the outstanding equity. "While this rule may not have been distinctly declared by judicial authority in this State, there are cases here which bear in that direction and seem to support that proposition. ( Warner v. Winslow, 1 Sandf. Ch., 430, 435 ; Merritt v. Lambert, Hoff., 166, 170; Jewett v. Palmer, 7 Johns. Ch., 65; Frost v. Beekman, 1 Johns. Ch., 288, 301; Jackson v. Cadwell, 1 Cow., 622, 631.) It has been so held in other States and in England. (Nantz v. McPherson, 7 T. B. Monroe, 597; 18 Am. Dec., 216; Dugan v. Vattier, 3 Black., 245; 25 Am. Dec., 105; Lewis v. Phillips, 17 Ind., 108; 79 Am. Dec., 457; Burton v. Reagan, 75 Ind., 77; Warner v. Whittaker, 6 Mich., 133 ; 72 Am. Dec., 65.) And this rule is applicable until the contract is fully performed. (Bush v. Bush, 3 Strob. Eq., 131; 51 Am. Dec., 675 ; Doswell v. Buchanan, 3 Leigh., 365; 23 Am. Dec. 280.) But so far as the part performance is made in good faith and no further he may have protection or indemnity for reimbursement and for that purpose a hen for the amount so paid. (Stalker v. McDonald, 6 Hill, 96; Pickett v. Barron, 29 Barb., 508; Everts v. Agnes, 4 Wis., 343; 65 Am. Dec., 314; Hoffman v. Strohecker, 7 Watts, 86; 32 Am. Dec., 740; Rhodes v. Green, 36 Ind., 10; Beck v. Uhrich, 13 Penn. St., 636; S. C., 16 id., 499 ; Juvenal v. Jackson, 14 id., 519; Paul v. Fulton, 25 Mo., 156.) The application of this doctrine permits no undue advantage and gives protection to the rights of the parties. And so far as these propositions may be applicable to the facts and situation of the parties as they may appear in this case they should govern its determination. This protection to the defendant company should cover the amount of the purchase-money for which Bigelow, by way of performance of his contract, had in good faith become legally liable to pay persons other than Warren, and the amount actually paid by him upon it before he became chargeable with notice of the plaintiffs claim. The plaintiff seeks by this action the assignment to him of one-half only of the patent that he may realize from it the advantages furnished by his contract with Warren. The other half it would seem the defendant company may, if it so desire, retain subject to the provisions of such contract. And whether it does or not so elect, further consideration by way of adjustment of rights may arise which it is unnecessary here to consider. The parties if so disposed may agree upon a modification of the judgment so as to accomplish the result.

The judgment should be reversed and a new trial granted. Costs of this appeal to abide the final award of costs unless both parties consent and stipulate to modify the judgment so as to give effect to the views above expressed. And in that event the judgment he so modified and as modified affirmed, without costs of this appeal to either party.

Smith, P. J, and IIaight, J., concurred.

So ordered.