text:
    The People, Resp’ts, v. Nellie Cowie, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Special sessions—Certification.
    In a case which is triable in the first instance exclusively by a court of special sessions under the provisions of section 56 of the Code of Criminal Procedure, the refusal of an adjournment, on the application ’of the defendant, to enable her to apply for a judge’s certificate, allowing the presentation of the matter to the grand jury, is error, though a jury trial had been previously demanded, where no step in the case had been taken before a request to withdraw that demand, and the application for the certificate, were made by the defendant.
    2. Magistrate—Jury trial.
    It is error to try before a jury a case which is triable before the magis- ' trate as such, and not before the court of special sessions; and, in such case, the trial and conviction by the jury gives the justice no right to pronounce judgment and issue his warrant for committal of the defendant.
    Appeal from a judgment, convicting the defendant of being a common prostitute.

      Charles A. Burke, for app’lt; Frederick G. Paddock, Dist. A tty., for the People.
   Mayham, P. J.

The defendant (appellant) was arrested upon a warrant by a police magistrate village of Malone, on an information filed with such magistrate, and sworn to, on the 14th of September, 1894, of which the following is a copy:

“ State of New York, County of Franklin, Vittiage of Malone—ss.: Be it remembered that I, J. J. Flynn, residing in the village of Malone, county of Franklin, N. Y., now come before O. C. Earle, Esq., a police justice of the villiage of Malone, in the county of Fmnldin, and give information, under oath, as follows, upon information and belief: That one Nellie Cowie, on the 1st day of September, 1894, at the village of Malone, in the town of Malone, county of Franklin, N. Y., at about eight o’clock in the afternoon of said, day, did commit the crime of being a common prostitute, against the person or property of the people of the state of New York, by, on or about August 15, 1894, having unlawful sexual intercourse with one Philip Groosha, and received pay therefor, and' with divers and sundry persons prior and subsequent thereto, whose names are to deponent unknown; wherefore your informant prays that the depositions of this informant and John Mahaney, Philip Groosha, W. A. Fobear, witness, may be reduced to writing, and duly subscribed, and that a warrant issue for the arrest of said accused, and that she be dealt with pursuant to the provisions of the Code of Civil Procedure.”

This information was duly verified, and on the 15th day of September, 1894, a warrant was issued thereon, reciting the accusation in the following words:

“ Information on oath having been this day laid before me that the crime of being a common prostitute has been committed, and accusing Nellie Doyle, nee Cowie, thereof.”

It is insisted that the information in the case was insufficient to give the justice authority to issue his warrant, as it does not state a crime known to the law, as defined and regulated by the Code of Criminal Procedure. This contention would be sound, within the case of People v. Olmstead, 74 Hun, 328; 56 St Rep. 311, if the authority of the magistrate and the character of the crime charged were solely derived from the provisions of the Code of Criminal Procedure. Under its provisions, common prostitution seems to be treated only as evidence of vagrancy, which isa crime, and in that case only when the accused has no lawful employment whereby to maintain herself. Code Cr. Proc. § 887, subd. 4. But, while the Code of Criminal Procedure governs the method of proceedings in an action of this character,, the provisions of chapter 187 of the Laws of 1881, as amended by section 8 of chapter 17 of the Laws of 1887, prescribes the nature and name of the offenses punishable by confinement in the “ House of Refuge for Women,” and among them is embraced “common prostitutes.” The information in this case in terms charged that offense, and was, we think, sufficient to give the justice jurisdiction, Having jurdisdiction, the examination of the complainant’s witnesses disclosed facts sufficient to authorize the issuing of the warrant. Ifit he assumed, as claimed by the appellant, that, to make a defendant amenable to the charge of being a “ public prostitute,” she must maintain that character at the time of the prosecution, still, that fact may be established by proof of improper and lascivious conduct immediately before the prosecution. The case in that respect is unlike that of public intoxication under the statute, when the accused must be found and arrested in a public place in a state of intoxication.

The most serious question in the case raised by this appeal is whether the justice should not have allowed the defendant an adjournment, to enable her to apply to a judge for a certificate that it was reasonable that the charge be presented to the grand jury under the provisions of section 57, Code Cr. Proc. As section 8 of chapter 187 of the Laws of 1881, as amended by chapter 17 of the Laws of 1887, confers jurisdiction on police magistrates in this class of cases, and as that is a special statute, it seems to follow that its provisions come within the language of subdivision 33 of section 56 of the Code of Criminal Procedure, and is one of the cases triable exclusively before the magistrate as a court of special sessions, unless the same is certified to the grand jury, unless the defendant waived that right by appearing and pleading to the merits and calling for a jury trial. The record discloses that on the 15th of September the defendant was brought before the justice, and by special counsel moved for her discharge—

“ On the ground that the affidavit and information do not state facts sufficient to state the crime charged, or any other crime; second, the information.charges the defendant with the crime of being a common prostitute, and there is no such offense known to the Code of Criminal Procedure or Penal Code of this state; and for the reason that the information does not charge a crime under the statute. Motion denied. Defendant pleads not guilty, and demands an examination. Court rules defendant is not entitled to an examination. Defendant called for a jury trial. Defendant’s counsel states he withdraws his request for a jury trial. People object to the withdrawal of the demand of defendant for a .jury-trial, and insist that defendant, having elected to have a jury trial in this case, cannot now withdraw such election, and the people have a right to try the case by a jury. Court refuses to withdraw the request. Defendant states or asks that her case be presented to the grand jury, and the proceedings be adjourned for not less than five nor more than ten days, to enable the defendant to procure and file with the court a certificate that it is reasonable that this charge be prosecuted by indictment, as prescribed by the Code of Criminal Procedure. People object that the crime charged here is not enumerated in section 56 of the Code of Criminal Procediere, and that she is not, therefore, entitled to the adjournment provided for in section 58 of the Code of Criminal Procedure. Motion denied. Defendant then demands a jury trial. Granted.”

The case shows that a venire was issued, a jury procured, and the hearing of the case adjourned from time to time until the 27th of September, then instant, when the case was tried before a jury, who rendered a verdict of guilty, upon which the defendant was, by warrant of the justice, committed to the House of Refuge for Women for a term of five years unless sooner discharged by the board of managers. If we are right in holding that this complaint was triable in the first instance exclusively by a court of special sessions, under the provisions of section 56 of the Code of Criminal Procedure, then it was error, we think, to refuse an adjournment, on the application of the defendant, to enable her to apply for a judge’s certificate allowing the presentation of the matter to the grand jury. The record shows that no step had been taken in the case, after the demand for a jury trial, before a request to withdraw that demand was made by the defendant. The right of the defendant, under section 58 of the Code of Criminal Procedure, to have time to make that application, is a legal right, guaranteed by statute, and not one resting in the discretion of the justice; and, when the defendant complied with the requirements of the statute in making the demand, it is error in the magistrate to refuse, which may be reviewed on appeal. But, if this case was one triable before the magistrate, as such, and not before a court of special sessions, then it was error to try it before a jury; and the trial and conviction by the jury gave the justice no right to pronounce judgment and issue his warrant for committal of the defendant. In either aspect of this case, we think the conviction erroneous.

The judgment of conviction is reversed.

All concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Allen J. Arnold et al., App’lts, v. James Fee et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 14, 1895.)

    Basement—Creation.
    Where a deed to defendant’s grantor of a lot, bounded on the north by an alley, recites, after the discription of the premises, that the conveyance is “with the privilege of the main alley leading to the Palace stables, .so1called, as an easement for an ingress and egress along the north line or alley line on the premises hereby deeded for the distance of ninety-éight 'feet west from Franklin street and no more, and for no other purpose, and the lot conveyed extends along said alley ninety-eight feet from Franklin street and on the side of the alley next the lot conveyed there is a sidewalk, the right of way created by such deed is for such ingress and egress as should be required by the necessities of any business which the grantees might conduct on the premises, and is not restricted merely to a footway along the sidewalk.
    Appeal from an interlocutory judgment sustaining a demurrer.
    The opinion of Mr. Justice Rumsey at special term is as follows:
    It appears from the complaint in this case that the plaintiffs and the defendants are the owners of parcels of land lying contiguous, and that one Joseph Ulrich was at one time the common owner of both pieces. In 1884 he conveyed to the defendants’ grantor a piece of land on Franklin street which was bounded on the north by an alley belonging to the grantor. The premises of the defendants extended ninety-eight feet on this alley. At the end of the description of the premises contained in the deed to defendants’ grantor, and which had been followed in the subsequent deed to the defendants themselves, is contained the following: “With the privilege of the main alley leading to the Palace Stables, so-called, as an easement for ingress and egress along the north line or alley line of the premises thereby deeded, for the distance of ninety-eight (98) feet west from Franklin street and no more, and for no other purpose.” The Palace Stables, so-called, are situated upon the property of the plaintiffs. Access to them is had by this alley, and they are used, for lively stables. The alleyway is upon the boundary between the plaintiffs’ and the defendants7 land. Whether by the conveyance to the defendants they were to take an interest in the laud to the centre of the alley it is not neccessary to discuss in this opinion.
    It appears from the complaint that, at the time of the conveyance to the defendants’ grantor, by Ulrich, there was situated upon the premises a house standing a number of feet back from Franklin street, and that the rear of the house extended to a point ■about thirty feet from the rear end of the lot along the alley, so that for a distance of thirty feet along the rear end of the lot it was not built upon. On the south side of the alley there was a stone sidewalk extending its whole length. It is alleged in the complaint that, from the time of the execution of the conveyance to the defendants’ grantors, they, and the defendants after them, were in the habit of using the sidewalk along the alley for the purpose of ingress and egress to their premises, and especially to a door which was in the wall of their premises in the rear of the house. The open space in the rear of the house was, some time ago, built up, so that the whole ninety-eight feet of the defendants’ premises along the alley was covered with the building. It is alleged further in the complaint that the defendants ar,e now about to convert the house into a “farmers’ hotel,” and that they propose to use that portion of the premises in the rear of the louse,.-being .the-.thirty feet which was formerly left open, forstables, and access to which they propose to have through the alley, and the complaint alleges that it is the intention of the defendants, not only to use the sidewalk for the passage of foot passengers, but also to use the whole of said alley for the ingress and egress of carriages and wagons to said barn or stable, and to pass over, with such vehicles, the sidewalk along said alley, and threaten to use the same accordingly. The complaint contains, in addition to that, the usual allegations of irreparable damage.
    It should also be said that, shortly after Ulrich conveyed to the defendants’ grantors, he, by another deed, conveyed to the plaintiffs’ grantors the remainder of his property, which deed contained a provision that the alley was subject to the easement expressed in the deed from Ulrich to the grantors of the defendants. The claim of the plaintiffs is that, by a proper construction of the grant of the right of way in the alley, the grantees are limited to use it simply for ingress and egress along the sidewalk, and for foot passengers, and that they have no right to enlarge its use further than they have been accustomed to use it. This claim is disputed by the defendants, who insist that they have, by a fair construction of the deed, the right to use the whole alley for such ingress and egress as the necessities of any bussness which they carry on may require. The right of the defendants to use this alley is one which they acquire solely by virtue of the provision in their deed, and, of course, while they can get no more than their deed gives them, they are entitled to use it as fully as a fair construction of the deed will permit.
    The well-settled rule should apply, that the construction of such a grant is to be made liberally against the grantor, and he should be deemed to intend to pass by his grant, all that is within the fair meaning of the words which he uses. Referring to the words of the grant, it will be noticed that the owner conveyed to his grantee the privilege of the main alley as an easement for ingress and egress. Standing by themselves, undoubtedly those words are sufficiently broad to permit the grantee in the deed to use this alley, ont only for the passage of foot passengers, but for the ingress and egress of carriages, if he saw fit to do so. Is there anything in the subsequent words which can be construed to limit this right? The exact wording of the grant is “ with the privilege of the main alley leading to the Palace Stables, so-called, as an easement for ingress and egress along the north line or alley line of the premises hereby deeded.” It seems to me that the words “ along the north line or alley line of the premises ” are not intended to limit the use of the alley, but simply to describe more particularly the situation of the premises with reference to the alley which is to be used. It will be noted that the grant does not say as an easement for ingress and egress along the north line of the alley, but along the alley line of the premises, from which it is necessary to be inferred that the reference to the alley is made, not for the purpose of limiting its use, but for the purpose of describing the. alley which is to be used. Besides that, if the words “ the north line ” should be construed to refer to the alley, they would give the right to the defendants to use the alley on the side opposite to that on which their premises are situated, which certainly could not have been intended. It should be noticed also that in the deed from Ulrich to plaintiffs’ grantors the alley is said to be subject to the defendants’ easement.
    The words “for the distance of ninety-eight feet,” are operative, and I have no doubt are intended to limit the right of the defendants to go upon the alley, and to preclude them from going further than the ninety-eight feet, and prevent them from using any entrance which may be put at the backside of their premises. They may go along this alley ninety-eight feet, and they have the right of ingress and egress at any point for that distance, but they have no right to go beyond the ninety-eight feet and make an entrance upon their premises along the west side, where it abuts upon the yard of the plaintiff’s land. The words “ for no other purpose,” at the end of the description, are to be construed, I think, as limiting the words “ ingress and egress.” The clause in the deed, I think, should be construed as though it read “ with the privilege of the main alley for the distance of ninety-eight feet west from Franklin street, and no more, as an easement for ingress and egress, and for no other purpose."
    I have examined the case of Allan v. Gomme, 11 Adol. & E. 759, and it does not seem to me that this case is controlling or is of much aid in constructing this grant. The way granted in that case was to a certain place which was described therein as an open place then used as a woodhouse. The court held that the grantee of the way might use the way for all purposes for which the open space might be used, but that he^was not at liberty to change the nature of the use of the open space and have the unlimited right of way to it when the use was so changed. The case has not been followed to the full extent of the decision, even in England (Henning v. Burnet, 8 Exch. 187), and I should have grave doubts whether the decision would be held applicable to the situation of affairs in this country. The right in that case was limited to the loft and open space, and within the terms of the grant it could not be used for access to any other place. In the case at bar the grant is not so limited. The grantee, by the express terms of his grant, may use this alley for ingress and egress for any part of the ninety-eight feet, although he can use it for no greater distance. The grant which was construed in Allan v. Gomme was of a right of way over a yard, and it contained a provision that the yard should be used in common by the occupiers of A.’s and Gr.’s messuages in the same manner as the tenants had been accustomed to use it, which plainly limits the right of way through the yard. I can find no authority for limiting the use of the words “ ingress and egress ” to ingress and egress by foot passengers, nor can I find anywhere within this grant any reason to believe that it was so intended. It is quite true that the complaint contains allegations that at the time of the making of the grant, and for some time afterwards, the grantees had been in the habit of using the sidewalk only along the alley for the purpose of ingress and egress to the door in the wall of their house, and for no other purpose, but it does not follow from that that they are es-topped to make use of it for another purpose, if such use is not beyond what is conveyed to them. The rule, I think, must be that the purposes for which a private way, created by the grant, may be used depend upon the terms of the grant. If it is in general terms, it gives the grantee the use of the whole and every part of the way, and it may be used in any manner and for any purpose reasonably necessary, and, where the way is granted for all purposes, it cannot be restricted to one purpose because the owner thereof has had occasion, for a long series of years, to use it for that purpose only. 19 Am. & Eng. Enc. Law, 107. The right depends, not upon the user, but upon the construction of the grant.
    As I have said before, the right here is a general right of ingress and egress, and I think it would be putting too strict a limit upon the terms of this grant to hold that it. was for ingress and egress for foot passengers only. But those words undoubtedly are of force in limiting the use to which this alley may be put by the defendants. They have only the right to ingress and egress, and they have no right to use this alley for the purpose of storing wagons. They may drive in and out, and undoubtedly, may obstruct the use of the alley to the plaintiffs while they are driving in and out, but they are not entitled to obstruct it for any other Íurpose, nor does the complaint allege that they intend to do so. t alleges simply that they propose to use it for ingress to and egress from their stables. That use, I think, is clearly within the' terms of the grant which has been made, and, consequently, the complaint does not show that the defendants intended in any way to violate the rights of the plaintiffs, and for that reason it does not set out a cause of action.

      William F. Cogswell, for app’lts; John H. Hopkins, for resp’ts.
   Per Curiam.

Interloctory judgment affirmed, with costs, on opinion of Rumsey, J., at special term, with leave to the plaintiffs to amend their complaint within twenty days, on payment of the costs of the demurrer and of this appeal.


author: Dykman, J.

text:
    In the Matter of the Final Accounting by William E. Scott el al., as Assignees of William A. Drake.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Assignment fob benefit of cbeditobs—Pbeference.
    The right of an employe of the assignor to a preference is not lost by the fact that he has taken the assignor’s note for the wages due.
    Appeal from an order, denying a motion by an employe to-have her claim allowed as a preferred claim against the assignor’s-estate.

      John W. Lyon, for app’lt; Lewis F. Carr, for resp’ts.
   Dykman, J.

This is an appeal from an order of the county judge of Orange county denying a matter, on behalf of Laura C. Aber, to have her claim allowed by the assignees as a preferred claim. William A. Drake made an assignment for the benefit of his creditors on the 26th day of January, 1893, to the above-named assignees, who accepted the trust, and proceeded to administer the same. They advertised for claims as the law requires. Laura C. Aber, the appellant, presented to and filed with the assignees her claim against the estate of the assignor as one on his promissory note for $1,400, dated March 27, 1890, and payable one year after date. The assignees rendered their final accounting March 26, 1895. Two days thereafter, Laura C. Aber, to whom a dividend was made as a general creditor, gave notice of a motion for April 23, 1895, to compel the assignees to allow her claim as a preferred claim. That motion was heard and denied by the county judge, and the appeal is from that order of denial. There is no dispute about the facts. Laura C. Aber, for many years prior to March 27, 1890, was a domestic servant of the assignor, Drake; and on that day he was indebted to her for services in the sum of $1,400, for which he gave her his promissory note, payable one year after date. She held the note, and presented it to the assignees without claiming any preference; and they resisted her present claim because she accepted the note for her wages, and made no claim under it for a preference under the assignment.

We think the denial of the motion by the county judge was erroneous. The claimant had been an employe of the assignor, and he owed her $1,400 for her wages, as such, at the assignment; and the debt was entitled to a preference, under the statute. The note was merely the evidence of the debt, and was not the debt itself. The note was not accepted as a payment, and its only effect was to extend the time of the payment of the debt. , The failure to present the note to the assignees, and make the demand for a preference, when the claim was first presented, has resulted in no injury to any one, and it would be unjust to deprive the appellant of her just rights because she failed to make a proper demand in time. The note can be surrendered at any time to"the assignees, and no claim upon it can be prosecuted. In re Heath, 46 Hun, 114; 11 St. Rep. 627. The order should be reversed, with $10 costs and disbursements, and the motion granted, without costs.

Al'l concur.


text:
    Adelbert P. Little, Resp’t, v. City of Rochester et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 14, 1895.)

    Municipal corporation— Assessments.
    Under a contract between a lot-owner and the city for the conveyance to the city of a portion of a lot for widening a street, which provided that the amount of the assessment made against the lot for the improvement should be deducted from the consideration specified in the contract, the city is bound by its contract to deduct the amount of this assess-, ment from the consideration to be paid to lot-owner, and has no lien on the land in the hands of a subsequent grantee for the amount of such assessment.
    Appeal from a judgment in favor of plaintiff.

      The opinion of Mr. Justice Rujvisey a special term is as follows:
    In the year 1892 the common council of the city of Rochester passed a final ordinance for the widening of W entworth street in that city. The usual proceedings were had for the taking of lands, and the executive board reported that the necessary land could be bought at a certain price, which appeared to the common council to be reasonable, and, in pursuance of its authority, on the 1st day of August, 1892, the mayor of Rochester made a contract with Charles W. Voshall, by which he agreed to convey to the city eighteen inches on the east side of his lot for the sum of $2,218.80. It was further agreed in the contract that there should be deducted from the consideration above expressed the amount of the assessment made against said property for the improvement specified in final Ordinance No. 4780, which was the final ordinance for widening of Wentworth street. The consideration was not to be paid until four months after the confirmation of the assessment roll for that ordinance. By the provision of the city charter it appears that the city is not obliged to pay for the taking of any land for the widening of a street until the confirmation of the assessment roll, which should be made for the expenses of said improvement. § 19f>. It further appears by section 191 of the charter that when the assessment roll is made for the expenses of any improvement there shall be made to appear on the face of it not only the amount of damages, if any, to which that person shall be entitled, “ and the amount of the excess, if any, to be collected." It is quite evident from this that the theory of the law is that there shall not be •collected by assessment from any person any greater sum than the difference between the award which has been made to him and the assessment made against him, and, therefore, if the assessment is less than the award nothing whatever can be collected from his property.
    After this contract had been made with Voshall, and before any assessment roll had been completed, the plaintiff bought of Voshall these premises on the corner of Wentworth street and West avenue, and took actual possession of them in the middle of April, 1893. The assessment roll was duly made and was confirmed by a vote of the common council on the 16th day of May, at which time it became a lien upon 'the premises described in it. City Charter, § 215. On the 8th day of May Voshall conveyed to the plaintiff the premises he agreed to sell to him, and he also conveyed to the city the eighteen inches which he had agreed to sell to it. On the 13th day of May, the city attorney gave to Voshall an order of which the following is a copy: “ City Attorney’s office, Rochester, N. Y., May 13, ’93. To the City treasurer: Charles W. Voshall and Caroline P. Voshall have this day delivered to me a duly executed and acknowledged deed of the parcel of land taken by the city of Rochester for the widening of Wentworth street in slid city under final Ordinance No.-, and is, therefore, entitled to the amount of the award made to them by the commissioners of appraisal therein, viz. twenty-two hundred twelve and eighty one-hundredths ($2,212 80-100) to be applied upon the assessment therefor, or in case the award exceeds the assessment then to the payment to them of the balance. Respectfully yours, A. J. Rodenbeck, First Assistant City. Attorney."' The order was presented, but instead of deducting the amount of the assessment the city treasurer paid to Yoshall the whole amount of the award, being $2,212.80. Shortly after the confirmation of the assessment roll a notice was sent to Yoshall to pay the whole amount of the tax, which notice was by him transferred to Little, and the city now seeks to make the land conveyed to Little liable for the whole amount of this tax. It is to restrain this proceeding on the part of the city that this action was brought.
    The contract which was made between the mayor and Yoshall was strictly within the provisions of the city charter as well as a compliance with the resolution of the common council, and by contract the city bound itself not only to pay Yoshall the amount of the assessment from the consideration for the land. The result of this was that the land was not to be made amenable to any lien for the assessment unless the amount was greater than the consideration paid for the land. This was the situation between Yoshall and the city at the time when Little made his contract for the purchase of the land. At that time it was certain that no assessment would be levied against this property to pay for the widening of .Wentworth street, because the whole amount of the assessment was to be deducted from the consideration for the eighteen inches of land sold by Yoshall. There was no cause, therefore, for Little to make any provision in his contract against this assessment, for there was no way at that time in which the assessment could become a lien upon his land. It is quite true that there was not at that time, and perhaps there never was, any relation between Little and the city with regard to this matter which could prevent the proper authorities of the city from changing this contract so as to pay to Yoshall the whole amount of the assessment. But the city never undertook to do anything of the kind. Neither the city attorney nor the city treasurer had any right to modify or change the contract which had been made by the mayor under the authority of the common council. Nor did they attempt to make any change. The direction to the city treasurer was simply to pay to Yoshall the balance which was due after deducting the assessment. There was no intention on the part of the city treasurer to do anything else, and that anything else was done was only the result of mistake which occurred somewhere in his office. The position which the three parties occupied with relation to this assessment was this: The city had the right to deduct the amount of this assessment, in the first instance, from the consideration which it was to pay to Yoshall. If that were done there would be no lien upon the land arising from this assessment, and unless there was a lien on account of the assessment the plaintiff here could not be subjected to the payment of any part of that sum. So far as the land was concerned, therefore, the city had practically guaranteed that there should be no lien upon it for this improvement unless the award to Yoshall was less than the amount of the tax against this land. So long as that condition of affairs-existed the plaintiff has the right to insist that there shall be no effort made to collect from his land the amount of this tax, which the city has agreed to deduct from the consideration going to Yoshall. The contract between Yoshall and the city has never been changed, and the payment of the full amount of this consideration by the city ¡treasurer was clearly a mistake. The question arises here, therefore, is, who must bear the consequences of this mistake ? Must it be visited upon the plaintiff, who has had nothing to do with it, or must the city look to Yoshall for the money which its officer unwittingly paid him, and recover it from him? It seems tome that there can be no difficulty in answering that question. Whoever else may have been to blame it is clear that the plaintiff was not. The person in the first place responsible for this overpayment is Yoshall, beause the plainest principles of good faith called upon him to advise the city treasurer that there was an assessment to be deducted from this consideration, and that he was only entitled to the balance after deducting the assessment. The mistake was undoubtedly the mistake of some person in the city treasurer’s office acting for the city treasurer, and was one of which Yoshall was ready to take advantage. But whoever committed the mistake in the office of the city treasurer was the agent, not of the plaintiff, but of the city, and the rule should apply that where one of two innocent parties must sustain a loss from the fraud of a third such loss should fall upon the one, if either, whose act has enabled the fraud to be com mitted. Moore v. Bank, 54 N. Y. 41, 47. The case at bar is a very proper one for the application of that rule. As we have seen, the city was bound by its contract to deduct the amount of this assessment from the consideration to be paid to Yoshall. If that had been done no harm could come to any one by reason of this assessment, but the burden of it would have fallen where it was expected and was proper that it should fall.
    The defendant’s attorney claims that it was competent for the -city to have changed this contract and agreed to pay the whole of the consideration to Yoshall, and to have collected the whole of the assessment from the property. In view of the provisions ■of section 191 of the charter, it is doubtful whether this claim is well founded or not. But, however that may be, it is not doubtful that no attempt was made by the city to make any change in this contract. I am not referred to any provision of the law which authorizes the city treasurer to make any such change. His duty is simply to pay the money as required by the contract, and when the contract provides. If he had confined himself to that, this litigation would not have arisen.
    I can see no reason why Yoshall and his wife should be made parties to this action. The plaintiff makes no. claim against them, and has, so far as I can see, no right of action against them. Undoubtedly thp city has a right of action to recover this money which was paid by mistake, but that is a matter with which the plaintiff has no concern whatever, and there is no reason why he should bring these persons into this litigation.
    For the reason thus stated the plaintiff is entitled to the relief which he asks.

      A. J. Bodenbeck, for app’lts; Walter S. Hubbell, for resp’t.
   Per Curiam.

Judgment affirmed, with costs, on opinion of Eumsey, J., at special term.


text:
    The People, App’lt, v. Henry C. Fish, Resp’t.

      (Supreme Court, General Term, Second De artment,

      Filed July 26, 1895.)

    Fish law—Nets—Menhaden in Habitan Bay.
    Section 138, chapter 488 of 1892, authorizes the use of nets in catching menhaden in the waters of Richmond county at all times, and a board of supervisors cannot restrict the right.
    Appeal from an interlocutory judgment, sustaining a demurrer to the complaint.
    The opinion of Mr. Justice G-ayhor, at special term, is as follows :
    I think the complaint does not state a cause of action. By section 272 of the game law (Laws 1892, chap. 488), which was. passed May 5, 1892, all existing laws and ordinances of boards of supervisors for the protection and preservation of fish, game, etc, (with one exception, which need not be specified), were repealed. The next section (278) empowered boards of supervisors to pass “ such laws and ordinances as shall afford additional protection to, and further restrictions for the protection of, birds, fish, shell-fish and wild animals, except wild deer, and to prohibit the taking-arid killing of the same ; ” provides for the filing thereof in the offices of the county clerk and secretary of state, the publication thereof, and also that they shall in every case be printed in the-volume of the Session Laws for the current year. Section 138 of the same law is á special enactment that “ no device except angling shall be placed, drawn or used for the capture of any fish,, except menhaden, in the waters of Baritan Bay, nor in any water-adjacent thereto in Eichmond county.” The particular thing to be noted is the exception of menhaden. This section was amended in 1894 by the addition thereto of an exception that shad might be taken by nets during a period of several months in the year. It is provided in the county law (Laws 1892, chap. 686), which was passed twelve days after the game law, that boards of supervisors may “ provide for the protection and preservation, subject to the laws of the state, of wild animals, birds and game, and fish and shell-fish, within the county ; and prescribe and enforce the-collection of penalties for the violation thereof.” Subdivision 8,, § 12. The board of supervisors of Eichmond county afterwards passed, filed and published the law set out in the complaint, prohibiting the fishing for or catching of menhaden by nets in any of the waters within the said county, and making the violation thereof a misdemeanor, and also subjecting the violator to a penalty of $100, to be recovered in a civil action in the name of the state; and it is printed in the volume of Session Laws of 1893. The present action is to recover a penalty thereunder.
    By the aforesaid provision of the game law, boards of supervisors ar.e empowered to enact laws making additional restrictions for the protection of game and fish, and prohibiting the taking and killing of the same,—that is to say, in addition to those adopted by the state legislature. The similar provision in the county law, already cited, also empowers them to do the like, “ subject to the laws of the state; ” but this express restriction adds nothing, for it would exist without being expressed, for such local boards get their power to legislate from the legislature, and such conferred power is subordinate tp the power of the legislature, for the legislature may revoke it or limit it or override it at will. It follows that, if the legislature specially legislate upon a local subject, the board of supervisors may not override such legislation ; for otherwise the two bodies could alternately override each other indefinitely upon a given subject. The provisions of state law in question must, therefore, be interpreted as only conferring power on boards of supervisors to enact laws containing restrictions and prohibitions additional to such as are contained in general state laws, or, it may be, in special or local state laws which it may be seen are not intended to and do not cover the whole subject, or take it unto themselves, and not laws conflicting with or overriding local state legislation on the same subject. It seems to me that the legislature has, by section 138 of the game law, taken the subject unto itself in this instance. It prohibits the taking of fish in Raritan Bay and the waters adjacent thereto in Richmond county by nets, but expressly excepts menhaden. As the complaint alleges generally that the defendant caught menhaden with nets “ in the waters within the jurisdiction of Richmond county,” which is the language of the supervisors’ law, I must conclude that its meaning is to embrace all of the said waters within the scope of the supervisors’ law, and that defendant is to be liable herein upon proof that he so caught menhaden in the particular waters mentioned in section 138 of the game law (if, indeed, the said section does not also embrace all waters within the jurisdiction of Richmond county). If this is not the intended scope of the complaint, it should have designated the particular locality of the alleged violation, so as to show, in fact, a violation of the supervisors’ law, and thus allege a cause of action, and not a legal conclusion. In 1894 the legislature so amended the said section 138 as to also except shad during a part of each year. May the board of supervisors, nevertheless, altogether prohibit the taking of shad by nets ? The case as to menhaden is not different. Shad is excepted part of the year ; menhaden, the whole year. If the legislature were also to except shad the whole year, the board of supervisors would not thereby be enabled to prohibit the taking of shad by nets; and that is now the case in respect of menhaden.
    The demurrer is sustained.

      Edward G. R hitalcer, for the People; Kurzman & Eranlcenheimer, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a The action is brought to recover from the defendant a penalty of $100, for having caught menhaden by means of a net in the waters within the jurisdiction of the county of Richmond in the state of New York, on the 25th day of July, 1894, contrary to .the ordinance passed by the supervisors of Richmond county, and contrary to and in violation of chapter 488 of the Laws of 1892. The complaint sets forth an ordinance adopted by the board of supervisors of the county of Richmond, at their annual session in 1892, by which it is provided that manhaden shall not be fished for, caught, or captured in any of the waters within the jurisdiction of the county of Richmond by means of nets of any kind, and imposed the penalty of $100 for each offense. It is also alleged that the defendant, in violation of the ordinance, contrary to and in violation of chapter 488 of the Laws of 1892, fished for, caught, and captured by means of nets, menhaden in the waters within the jurisdiction of the county of Richmond and state of New York, and that by reason of such violation of the statute the defendant is indebted to the plaintiff in the sum of $100, being the amount of the penalty prescribed by said act or ordinance of the board of supervisors, and the statute cited.

By the statute of 1892, familiarly known as the county law, power is conferred upon boards of supervisors to provide for' the protection and preservation, subject to the laws of the state, of wild animals, birds, game, and fish and shellfish, within the county, and prescribe and enforce the collection of penalties for the violation thereof. Chapter 488, section 138, of the Laws of 1892, provides that no device, except angling, shall be placed, drawn, or used for the capture of any fish excepting menhaden in the waters of Raritan Bay, nor any waters adjacent thereto in Richmond coun ty. That section was amended by chapter 627 of the Laws of 1894, by adding at the end thereof the following words, and re-enacting the section as originally adopted, by the following addition thereto:

“Except that shad may be taken by shad nets between the 15th day of March and the 15th day of June, but said nets shall not be allowed to remain in said waters from Saturday at sunset to the following Monday at sunrise.”

Upon the decision of the demurrer the judge at special term made a thorough examination of the case, and wrote an opinion in which we concur, and with which we are entirely satisfied, and we think the judgment should be affirmed, with costs, on the opinion of the judge who decided the demurrer. All concur.


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    Frances Nathan et al., Resp’ts, v. Edmund Hendricks et al., Def’ts. Morris B. Baer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Will—Construction.
    Where the only gift is in the direction to pay or distribute at a future time, time is of the essence oí the gift, and the gift is not vested, but contingent.
    Appeal from an order, denying a motion to relieve the purchaser on a partition sale.

      The paragraph of the will of Charlotte Gromez by which the land in question was devised is as follows :
    Fourthly. In case my said daughter Matilda should survive her ■sister Emeline, my said daughter Emeline dying and leaving no child or children or their issue descendants of her body her surviving, I bequeath and devise the real and personal property herein-before devised and bequeathed to be held in- trust for my said daughter Emeline by my said executors to my said executors to be held in trust to apply the rents, income, dividends and profits of all and singular the same to the support, maintenance, wants and necessities of my said daughter Matilda during her natural life, and after her decease to transfer, convey and set over all and ■singular the same, my real and personal estate, so left in trust, to the children and lawful heirs of my brother Harmon Hendricks, deceased, to share and share alike, per stirpes ; saving and reserving, however, both from this last bequest and devise in trust for the use of my daughter Matilda and the children and heirs of my brother Harmon Hendricks, in case my daughter Emeline should by her last will or other lawful direction dispose of the sum of $5,000 to be paid out of my said estate so held in trust after the decease of my said daughter Emeline to such person or persons as she may deem proper.
    The opinion of Mr. Justice Ingraham, at special ■ term, is as follows:
    I fully appreciate the strength of the purchaser’s position,—that the court should never compel a purchaser of real estate at a judicial sale to complete his purchase unless the title furnished to him is one free from reasonable doubt, so that he can get a marketable title. But as this question is purely a legal one, which depends upon the construction of the will under which the parties to this action claim, it seems to me that it would be for the interests of both parties to have the title settled on this motion. The only ■question involved is whether or not the defendants, being the descendants and lawful heirs of the testatrix’s brother Harmon Hendricks, took a vested remainder in the real estate described in the fourth clause of the will, so that it passed to their devisees or heirs at law, or whether the remainder was contingent, to be divided among the lawful heirs of Harmon Hendricks at the time of the determination of the life estate. There is a general rule in this state, which is well settled, that where “ the only gift is in the direction to pay or distribute at a future time the case is not to be ranked with those in which the payment or distribution only is deferred, but is one which time is of the essence of the gift. * * * In such cases, until the happening of the future event, it must necessarily remain uncertain whether a gift would exist at all, and that could not be said to have vested which was not certainly given.” Smith v. Edwards, 88 N. Y. 104. In Goebel v. Wolf, 113 N. Y. 412; 23 St. Rep. 176, the rule is stated as follows : “ In harmony with this general rule, another general proposition has been formulated, that, where the only gift is found in a direction to divide at a future time, the gift is future, and not immediate; contingent, and not vested.’’ The case of Delaney v. McCormack, 88 N. Y. 174, is in point. There the testator gave his real estate to his son for life, and in fee in case his son married and had-issue. If his son died without lawful issue, the will directed the executors to sell the real estate and distribute the proceeds among the testator’s next of kin. It was held that the proceeds of the real estate were to be distributed among those who were such at the time of the distribution, and that the devise was contingent. In this case the real estate was devised to the trustees, to receive the rents, income, and profits, and pay the same to her daughter Emetine and in case she should die leaving lawful issue, then to grant and convey the said real and personal estate to such issue. Emetine lived until 1885, and then died without issue. Matilda survived her, and died in 1893. It is clear that during Emetine’s life the devise was contingent. It was uncertain whether or not the land would go to her issue, and what was said by Finch J. (Delaney v. McCormack, supra), applies to this case: “Here a future condition or contingency attaches to the substance of the gift. It was conditioned upon the death of James (Emetine) without having had lawful issue, so that the vesting was plainly postponed and. the gift was future.” Upon the death of Emetine without issue, the trustees were to hold the property in trust for Matilda, and upon Matilda’s death they were to convey and set over said property to the children and lawful heirs of the testatrix’s brother. There are here no words of gift to the heirs of Harmon. On the contrary, the whole fee is vested in the trustees, and the only provision is that after the death of Matilda they are to transfer, convey. and set over all the real and personal estate so left in trust to the children and lawful heirs to the testatrix’s brother Harmon Hendricks. I think that under this provision of the will the remainder was contingent, and did not vest until the termination of the life estate. I think, therefore, the motion should be denied. The question, however, is not free from doubt; and, under the circumstances, I will grant a stay of proceedings pending appeal to the general term, so that the question can be passed upon at the general term during the June term.

      Townsend Wandell and Thomas W. Butts, for app’lt; Edgar J. Nathan, for resp’ts.
   Per Curiam.

Order affirmed, with costs, on opinion of the court below.


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    In the Matter of Non-magnetic Watch Company of America.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    1. Sale—Manufactured article—Title.
    The title to goods, manufactured under a contract that the purchaser is not bound to accept unless the goods are made according to specifications, does not vest in the purchaser until accepted by him.
    2. Same—Transfer of bill of lading.
    Where the vendor, under a contract of sale whereby the purchaser does not acquire ti le until acceptance, ships the goods and" transfer the bill of lading therefor to a bank to secure the payment of a draft for the price of the goods drawn on the consignee by the vendor, which was discounted for him by ihe bank, the bank acquires the legal title to the goods, which it is entitled to hold until payment of its claim.
    3. Same—Part of materials furnished by buyer!
    Where part of the materials are furnished by the purchaser, but the principal part is furnished by the manufacturer, the property to the article is in the maker until its completion and delivery.
    4. Same—Payment .
    An advancement of money during the progress of the work will not vest the title in the purchaser until the article is finished and delivered.
    Appeal from a judgment, denying a claim against the temporary receiver of the corporation for certain property.

      Julius Goldman, for app’lt; Fettretch, Silkman & Seybel, for resp’t.
   Dykman, J.

The Non-magnetic Watch Company, which was a domestic corporation, filed a petition for a voluntary dissolution, and on the 13th day of October, 1889, Charles S. McCullough was appointed temporary receiver, and afterwards he was appointed permanent receiver, of the property of the company. The Bidgenoessische Bank (a name which in the French language signifies Banque Federal, and which in this opinion will be called the Federal Bank for convenience) is a banking corporation at Byrne, in Switzerland. Aeby & Co. was a corporation engaged in the business of manufacturing and selling watches at Maderetch in Switzerland. Contracts were made between Aeby & Co. and the watch company, by which the former agreed to manufacture watch movements of American sizes for the watch company only. By the contracts, Aeby & Co. agreed to manufacture solely for the watch company, and agreed to sell and let the watch company have all they could make, and the watch company agreed to order and accept all they could make up to 300 a day, at prices which were agreed upon in the contract. The watch company was not bound to accept or receive any watches unless they were made according “to the specifications and the standard of excellence as agreed upon.” The materials of which the watch movements were made belonged to Aeby & Co. The watch company supplied Aeby & Co. with the hair springs and the balances, but they were sold to Aeby & Co., and constituted but a small part of the material used in the manufacture of the watches. In December, 1889, Aeby & Co. had in 'their possession three cases of watches manufactured by them under the contract with the watch company, of the value of 28,600 francs, which they shipped to America, consigned to Nathan 'Bushnel at New York, through L. W. Morris & Sons, forwarding agents, and taking bills of lading therefor. Aeby & Co., the consignors, drew two drafts or bills of exchange against the consignment of $5,000 each, directed to the consignee, Bushnel, and on the 20th clay of January, 1890, they drew another draft or bill of exchange against the consignment, directed to the consignee, and then attached the bills of lading to the drafts, and procured the Federal bank to discount the drafts, transferring to the bank at the same time the bills of lading for or as security for the. payment of the drafts. The drafts- were accepted by Bushnel, the consignee, and at maturity were duly presented for payment, and, payment being refused, they were protested for nonpayment. The bank then demanded of the consignee the three cases of watches, and the receiver of the watch company also demanded them, claiming, as such receiver, to own them, on the ground that the watches were made by Aeby & 06. for the watch company, and consequently belonged to the latter company, and that Aeby & Co. had no right to pledge them or draw drafts against them, and that no title or right to the watches passed by the transfer of the bills of lading. It was to determine these conflicting claims that the referee was appointed. At the time of the appointment of the referee it was agreed between the parties that the watches should be sold, and the proceeds held in their place, to abide the event of these proceedings. The referee found and decided that Aeby & Co. were not the owners, but only bailees, of the watches in question, and that the title was in the' watch company. He, therefore, concluded and decided that the' bank, by the transfer to it of the bills of lading as security for the discount and advances made to Aeby & Co., did not acquire any right or title to the watches. ]upon that report a judgment was ordered, and the Federal bank has appealed from the judgment, and also from the report of the referee, upon which it was based, and from the order co-nfírmiñg the referee’s report, and directing judgment to be entered thereon.

The report of the referee is not in accordance with the law which controls the case. The watch company contracted with Aeby & Co. to manufacture for it watch movements of American sizes for stipulated prices to be paid therefor. Aeby & Co. furnished all the materials, for, although the watch company supplied the hair springs and balances, they were purchased of it by Aeby & Co., and so became the property of the latter. Under the well-settled principles of law, the fiiyn of Aeby & Co. were the owners of the watch movements until they were delivered. A contract for the construction of an article is executory, and remains so until the thing is completed. While it is competent for the parties to a contract for the construction of an article to provide for the vesting of the title thereto at any time, in this case it is to be collected from the contract that the intention of the parties was that the title of the article was not to vest in the watch company until their acceptance by it, for the company was not bound to accept any of the articles unless they were made according “ to the specifications and the standard of excellence agreed upon.” The following authorities support these conclusions : Andrews v. Durant, 11 N. Y. 35; Gregory v. Stryker, 2 Denio, 628. In fact, the decisions in this country are all in harmony upon the question. In the Andrews Case, one of the opinions stated the rule as follows:

“ The general rule is that, if a person contracts with another for a chattel not in existence at the time of the contract, though he paid him thé whole value in advance, and the other proceeds to execute the order, the buyer acquires no property in the chattel until it is finished, and delivered to him.”

When, therefore, the three eases of watches in question were consigned to Nathan Bushnel by Aeby & Co., the property belonged to the latter, and the transfer and delivery of the bill of lading with the three bills of exchange was a symbolical delivery of the goods, and the Federal bank thereby acquired title to the property, and was authorized to hold it until the loan it made thereon was paid. Bank v. Jones, 4 N. Y. 497; City Bank v. Rome W. & O. R. R. Co., 44 id. 136: Mechanic' & T. Bank v. Farmers' & M. Nat. Bank, 60 id. 47. A bill of lading confers the legal title of the goods upon the person in whose favor it is issued. Bank v. Logan, 74 N. Y. 568. As the drafts remained unpaid when the Federal bank demanded the three cases of watches of the consignee, the property belonged to the bank, and it was entitled to the possession of the goods. The receiver had no title to the property, and no right to its possession. He occupied the saqie position as the watch company, and the rights of the Federal bank were paramount to both. The conteneion of the receiver was that, as the watch company furnished the springs and balances, the watches belonged to that company. The springs and balances composed but a small part of the movements required to be used in the construction of a watch. It required upper and lower plates, pillars, train, dial, hands, pendants and jewels. Upon the theory of the watch company, therefore, this would be a case where the principal part of the materials were furnished by the manufacturer. In such a case the property of the article is in the maker until its completion and delivery. Gregory v. Stryker, 2 Denio, 628, and cases there cited. Upon either theory therefore, the claim of the receiver is baseless.

It is claimed further in behalf of the watch company that Aeby & Co. .were indebted to the watch company in a large amount, and it could hold the property for that reason. That position is also untenable, for we have already seen that even a payment in advance of the entire price of the article to be made will not place the title in the buyer until it is finished and delivered. That being the rule., certainly an advancement of money during the pro? gress of the work will have no greater effect than an absolute payment of the entire price.

The errors disclosed by the examination already made require a reversal of the judgment; but, even if all the claims of the watch company were conceded, and it stood admitted that all the materials used in the construction of the watches belonged to the watch company, the manufacturers would then have a lien upon the manufactured articles for the labor bestowed upon them. Story, Bailm. § 295. As a party . having a lien upon goods may pledge them to the extent of his lien, Aeby & Co., in this case, if they had no other rights than as lienors, had the right to pledge the goods to the extent or amount of $50,000, the watch company being indebted to them o,n the merchandise account in that amount. If the title to the watches was, as the receiver claims,in the w.atch company .all the time, and the indebtedness to Aeby & Go. was for the work done and materials furnished by them all under one contract, then Aeby & Co. had a lien on those three cases of watches, not only for the work done and materials furnished in their manufacture, but on the sum remaining unpaid on the watches previously delivered. Morgan v. Congdon, 4 N. Y. 552; McFarland v. Wheeler, 26 Wend. 467. It therefore follows conclusively that the watch company had no right or title in the property in question, and that the same belonged to the Federal Bank, and should have been delivered to it upon its demand.

The referee’s report, and the order confirming the same, and the judgment entered thereon, must all be reversed, with costs, and as the facts are substantially undisputed, and cannot be changed upon a second trial, the judgment must he entered in favor of the Federal Bank.

All concur.


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    Grace A. Keyes, App’lt, v. William H. Manning et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    W ills—Pebpet dities.
    Where & will gives the entire estate to executors, in trust, to divide the property into three equal shares and hold one part for each of the testator’s three children for life, and provides that, at his death, tlio trustees shall give the son’s share to his issue, but, should he leave no issue, then his share shall he distributed equally between the issue of the testator’s daughters, and that, if one of said daughters leave no issue, then such shares shall be given to the children of his other daughter, there is no suspension of the power of alienation longer than two lives in being at testator’s 'death.
    Appeal from a judgment, construing the will of Seth G. Keyes, deceased.

      Samuel TF. Bower, for app’lt; William J. Carr, for resp’ts Bertha A. Norton and others. Farnham & Stevens, for resp’t J. S. Hilliard ; Russell, Paste & Percy, for executors.
   Dykman, J.

This action was commenced by the plaintiff, who was a daughter and legatee of Seth G. Keyes, deceased, against the executors and other legatees and next of kin, to obtain a judicial construction of the will of her father, and for judgment directing the executors to pay to her such share as she may be entitled to receive. The testator, Seth C. Keyes, died on t-he seventh day of January, 1893, leaving him surviving (his only heirs at law and next of kin), three children, to wit: Amelia A. Norton, Grace A. Keyes and Seth C. Keyes, Jr. The will was proved and admitted to probate on the twenty-sixth day of January, 1893, and letters testamentary were issued to the defendants Wiiliam'H. Manning and John Wood, Jr., and they took possession of the estate, which amounted, to about the sum of $15,000. Seth G. Keyes, Jr., died on the eleventh day of June, 1893, intestate, without issue, and without leaving father or mother, and leaving, him surviving (his only heirs at law and next of kin), his two sisters, ■Amelia A. Norton and Grace A. Keyes. The scheme of the will of the testator is obvious. The entire property is given to the executors in trust to receive the rents and profits of the same, sell and dispose of the same, and divideJfche property, or the proceeds thereof, into three equal shares, and hold one of the said parts for each of the children, Amelia, Grace and Seth, during his and her natural life, and pay over to each one the income of the share so set apart for him or her, so long as they live ; to give or apply to either a part or the whole of the principal of the share so set apart to him or her, in the discretion of the executors.

The fifth clause of the will has created the embarrassment, and it reads as follows:

“At the death of Seth 0. Keyes, Jr., my trustee shall give his one-third share, or so much thereof as may remain, to his lawful issue; to have and to hold to them, their heii’s and assigns, forever. Should he leave no such issue, the said share, or so much thereof as may remain, shall be distributed equally between the lawful issue of my daughters, Amelia A. Norton and Grace A. Keyes. Should Grace A. Keyes leave no such lawful issue, then said share, or so much thereof as shall remain, shall be given to the children of said Amelia A. Norton ; to have and to hold, their heirs and assigns, forever.”

It is the claim of the plaintiff that the provision in said fifth clause is void, because it suspends, the power of alienation for _ more than two lives in being 'at the death of the testator, to wit, Amelia, Grace and Seth, and that one-third share therein mentioned descends to the plaintiff and her sisters, as heirs at law and, next of kin of the testator and Seth 0. Keyes, Jr., and she seeks a judgment to that effect. The fund is separated into three shares, and the income upon each share is given to a beneficiary. In effect, there are three distinct trusts, or more properly speaking, a trust in relation to the three distinct funds. The absolute ownership of the fund is not suspended at any time. The title is in the trustees until the death of the life tenant. Then each share vests in the remainderman. No disposition of income after the death» of each life tenant is made, because then the fund goes to the owner. The testator contemplated his grandchildren as the object of his bounty, as a class, because he denominated them as “children," and not individually. They became tenants in common, and the language employed is equivalent to a direction to pay to the grandchildren. There is therefore no embarrassment in relation to the shares of Amelia and Grace. When the time arrives for the distribution, the share of Amelia is to be given over to her children, and the share of Grace is to be given to the children of Amelia, unless Grace leaves lawful issue; but if she leaves lawful issue, her surviving, then her share is to be given to them.

In relation to the fifth clause, which relates to the testator’s son, Seth, his share went to his issue; but if he left none, then it went to the lawful issue of his two sisters, as a class. It was a fluctuating class, to be ascertained and determined at the time of the death of the son. Such is the natural inference from the phrase, “ at the death of Seth 0.," at the commencement of the clause. As no class answered to that description at that time, except the children of Amelia, they must be deemed to have taken the share of the testator’s son, Seth. We think, therefore, the will received the proper construction in .the court below, and the judgment should be affirmed, with costs to Amelia A. Norton, to be, paid from the estate.

All concur.


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    Michael J. Ahern, App’lt, v. Kings County et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Counties—Liability.
    A county is not liable for the negligence of the board of supervisors in failing to maintain bridges in a reasonably safe condition for travel.
    Appeal from a judgment dismissing the complaint.

      Foley & Wray, for app’lt; George F. Elliott, for resp’t Kings county; F H. Van Vechten, for resp’t.Queens county.
   Dykman, J.

The complaint of the plaintiff in this action was dismissed at the trial, on the motion of the defendant, because it failed to state facts sufficient to constitute a cause of action, and the plaintiff has appealed from the judgment of dismissal. It is stated in the complaint that the boards of supervisors of the counties of Kings and Queers conjointly built a bridge across Newtown creek, which flows between the counties of Kings and Queens, and forms one of their boundaries; that such bridge was-used by the public by permisión of the two.counties, and while the plaintiff was lawfully upon - the same, it gave way, and the plaintiff was thrown into the stream below, and received the injuries complained of in this action. Then it is averred that the injuries sustained by the plaintiff were entirely due to the faulty and defective construction and maintenance of the bridge, and various other causes relating to the unsafe condition of the same.

The question is, can the action be maintained against the counties for the recovery of the damages sustained by the plaintiff ? In this state the counties are organized for the exercise of a portion of the state government. Their power, duties, and liabilities are all conferred by the'constitution and the laws of the state, and they are all specific and limited. They possess no inherent power, and they are subject to no liability except such as is imposed by the statute. Our Revised Statutes declares that the counties, as bodies corporate, have capacity to sue and be sued in the manner prescribed by law, to make such contracts and purchases and hold-such personal property as may be necessary for the exercise of its corporate and administrative powers; that no county shall possess or exercise any corporate,powers except such as are enumerated in the chapter which regulates the subject or shall be specifically given by law, or shall be necessary to the exercise of the -powers enumerated or.given. The .powers of a county as a body politic can only be exercised by the board of .supervisors thereof, or in pursuance of a resolution by them.

In 1864, by.chapters 8 and.390 of the laws of .that year, boards of. supervisors were authorized to borrow money upon the .credit of their counties for the payment of war bounties, and we have been referred to no statute, and we have discovered none, which imposes liabilities upon the counties for the negligence of any of their officers if such liability results from the doctrine of respondeat superior for the reason that such officers are not agents of the county. This court is fully committed to these views, for we have decided, in another action which arose out of the same accident in which the plaintiff was injured, that the counties are not liable for the damages resulting therefrom. Albrecht v. Queens Co. The statute of 1892, chapter 686, sections 2, 3, which declares counties to be municipal corporations, has imposed no new liabilities upon the counties.

The judgment should be affirmed, with costs.

All concur.


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    John McAvoy, App’lt, v. Kings County et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

      William H. Law, for app’lt; George F Flliott, for resp’t Kings county; F. H. Van Vechten, for resp’t Queens county.
   Dykman, J.

The counsel for the respective parties to this action have stipulated that the issues involved in the appeal in this action aré identical with the issues involved in the case of Ahern v. Kings Co., 69 St. Rep. 104, and requested the general term to dispose of the appeal in this action in the same way as it may dispose of the appeal in the Case of Ahem. As the judgment in the action of Ahern has been affirmed at this term, so the judgment in this action of McAvoy must be affirmed according to the stipulation, with costs.

All concur.


author: Bradley, J.

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    In the Matter of the Auburn City Railway Company.

      (Supreme Court, General Term, Fifth Department,

      Filed July 6, 1895.)

    Railroads—Street—Construction.
    The consent of the municipal authorities to the construction of a street, railroad is not a prerequisite to the appointment of commissioners to determine whether the road ought to be built, and the question whether or not it has been given, does not necessarily arise upon motion to confirm their report.
    Motion for a re-argument

      John D. Teller, for motion; E. C. Aiken, opposed.
   Bradley, J.

J. — On the coming in of the report of the commissioners appointed in this proceeding, and after hearing counsel for the parties, the report was confirmed. This motion for reargument is founded upon the apprehension that certain preliminary questions or objections may not have had consideration, in granting upon the merits the motion to confirm the report of the commissioners, and especially the question sought to be raised of ,asserted variance between the route of the railway described in the petition and that on which it is said the petitioner proposes to construct its railway.

The Auburn City Railway Company was organized upon the consolidation of the Bast Genesse Street & Steward Avenue Railway and the Auburn & Owasco Lake Railway, pursuant to Laws 1886, chap. 163. The petition by which this proceeding was instituted, after stating the streets of the city in which it has, since the organization of the company, operated its railway, states that the petitioner proposes to extend its railroad from the corner of State street, west, through West Genesse street, to South Division street, near the west boundary of the city; ” that application had been made to the common council of the city of Auburn “to consent to the construction and operation of said railroad of your petitioner, and a hearing has been advertised as required bylaw.” And after stating that diligent efforts had been made, in behalf of the petitioner, to obtain consent of the owners of the property bounded on that portion of the street upon which it is proposed to •construct and operate its railroad, it is alleged that “the consent of the required owners of property cannot be obtained to permit the contruction of the proposed railroad." The contestants answered the petition and thereupon, on application, an order was made appointing commissioners to determine whether a street railway ought to be constructed on West Genesee street. The commissioners were thereby directed to take the evidence touching all questions of fact raised by the answer, and it was by the order provided that all questions of law and fact arising upon the petition' and answer be heard and determined by the court at the time the application should be made for confirmation of their report, as fully as if they had been heard before the commissioners were appointed, and that “it appears that objections based upon both law and fact were raised by such answer to the appointment of said commissioners, and that the hearing, trial, and determination of such questions and objections should be postponed until the confirmation of the report of the commissioners is applied for, without prejudice to any of said objections by reason of such postponement.” It is said that the company proposes and intends to construct its road beyond South Division street,, and to the west bounds of Cayuga County Agricultural & Horticultural Grounds, which is some distance westerly of that street, and that the consent of the municipal authorities of that city of Auburn is for the construction of a railroad to the west bounds of such grounds. This fact did not appear in the evidence before the commissioners. The petitioner offered in evidence a statement of a proposed ex-tention and franchise granted by the common council, and it was excluded upon the objection of the contestants. The contestants seek, upon the application for confirmation of the commissioners’ report, to raise this question, and thereupon to urge^ as an objection to the confirmation, that no consent of the municipal authorities, other than the one for the construction of the railroad extending to the west line of those county grounds, were given; that it does not appear that the requisite consents could not be ob-tamed to construct the railroad to that point, or that any effort was made to obtain consents lor the construction of a railroad described in the petition. No such objections were taken upon the application for the appointment of the commissioners, nor did any facts appear upon that application in support of such objections. Reference, however, is made to the order by which it is claimed that the consideration of them was postponed until the application for the continuation of the report should be made, and then to be presented and determined. Such seem to be the saving provisions of the order as to such objections as are raised by the answer. By if the contestants admit that the company had made application to the common council of the city “ to consent to the construction and operation of said railroad, and a hearing thereon has been advertised as required by layq but alleged that said application is for the construction and operation of a railroad from the corner of State and Genesee streets, through Genesee street, to the west bounds of the Cayuga County Agricultural & Horticultural Grounds,—a point some distance west of the western terminus of the railroad described in the petition.” This fact so affirmatively alleged did not appear upon the hearing before the commissioners, nor did it appear there what consent had been given by the municipal authorities, nor was any objection specifically taken by the answer to the effect that no application had been made to the common council, or none given by it for the construction of a railroad in West Genesee street, as described in the petition. The hearing before the commissioners proceeded in reference to the latter route, and after taking the evidence, etc., they by their report, determined “that the railroad described in the petition ought to be constructed and operated.” It seems that whether the petitioner contemplated the extension of its railroad beyond the western terminus mentioned in the petition, or whether application therefor was made to, and had the consent of, the common council, are not here for consideration on the application for confirmation of the commissioners. The requirement preliminary to the application for the appointment of commissioners in such a case is the fact that the requisite consent of the property owners cannot be obtained. When that appears, the commissioners shall be appointed. Laws 1890, chap. 565, § 94. That is the only prerequisite to the appointment. In re Thirty-Fourth St. R. Co., 102 N. Y. 343. The allegation in the petition that the requisite consent of the owners of property could not be obtained to permit the construction of the proposed railroad was supported before the commissioners by the concession there made and entered in the minutes of the proceedings,—“that the consent of the requisite number of property owners cannot be obtained to consent to the proposed railroad by the petitioner.” The preliminary fact essential to the appointment of the commissioners, and in support of their report in that respect, was thus made to appear and established. The consent of the municipal authorities is a prerequisite to the construction, extension, or operation of the railroad. Laws 1890, chap. 565, § 90. But, as such consent is not necessary to the appointment of the commissioners, the question whether or not it has been given does not necessarily arise upon motion to confirm their report.

Our attention is called to In re Cross-Town Ry. Co., 68 Hun,. 236; 52 St. Rep. 295, as authority in opposition to the .motion to-confirm the report. There the petitioner, having.obtained by purchase ¡the right-to construct a railroad in Prospect avenue, from Huron street to Pennsylvania street, in the city of Buffalo, ,-and having obtained the .consent of the authorities of ,ihe city of Buffalo to .construct it, made application for the,appointment of.commissioners, in a proceeding instituted for the purpose. The length of .that route in the avenue was nearly 4,000 feet. The ¡proceeding was abandoned, and upon petition another application was made ;for the appointment of commissioners to determine whether a railroad .ought,to be laid and operated in the avenue between Huron street and Carolina street,—a .distance of 1,175 feet. The application was denied, and the reasons for the denial, as given in the opinion of the court, were (1) that the petitioner had failed ¡to show that it had made ineffectual effort to obtain the -necessary consents of the property owners along the -avenue -from Huron street .to Pennsylvania street, and for .aught appeared, -they might, have been obtained; (2) that no consent .of the city authorities had been .obtained to any change of -the .route, and it could not be .assumed that they would consent to construct a railroad only between Harón and Carolina streets;, (3) that it did not-appear that the petitioner had abandoned any part of its right to construct .a railroad in the avenue ; (4) and that it was not within .the.contemplation of the statute that .the petitioner should have-the right, for the purpose of distinct proceedings, -to divide the route thus acquired in the avenue into .sections. Ho general principle was enunicated by the conrt in that case. It was disposed of upon its own peculiar circumstances, and, in view .of them, it is deemed well decided. Unless something appears to take a case-of this nature out of the operation of the general rule, the main question is whether ft i,s made to appear that .the requisite consent of the property owners cannot be obtained. The main reason for the denial of the application in the Cross-Town St. Ry. Co. Case may have been in the fact that it did not appear that .the petitioner could not obtain the requisite consent .of the property owners for the construction of the railroad between foe-termini of the route in foe avenue where it appeared -that ¡the petitioner had obtained foe right and consent other .than that .of foe property owners to construct it. In foe present case no such objection was specifically raised upon the application for foe appointment of commissioners, or in .the answer to the petition ; and it appeared on the hearing before foe-commissioners that the requisite consents, of .the property ..owners to the construction of foe proposed railroad .could not be obtained by foe petitioner, as before mentioned. For the purpose .of the question ¡here, .the proposed railroad .must be deemed that to which the proceeding and the bearing had before foe commissioners related. And it cannot now we.ll be insisted by foe .contestants ,in .this proceeding that it did not appear font ,foe -petitioner could no,t,obtain such requisite .consents.

Ho other question requires consideration on this motion. The motion for reargument should therefore be denied.

All concur.


text:
    Esther Hayes, Resp’t, v. St. Mary's Lodging House, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Bill of particulars—Whex.
    A bill of particulars will not be directed as to matters which are within the applicant’s knowledge, nor for the purpose of ascertaining what proofs the adverse party intends to introduce.
    Appeal from a motion, granting a bill of particulars.

      Turner, MeClure & Rolston (David McGlure, of counsel), for app’lt; Spink & Martin, for resp’t
   Dykman, J.

This is an appeal from an order directing the defendant to serve a bill of particulars. The action is brought for the recovery of the sum of of $3,000, alleged to be due the plaintiff on account of two loans made to the defendant. The answer alleges that the defendant is a charitable institution ; that for about six years prior to March, 1893, the plaintiff was connected with the Home as assistant superintendent, and through the confidential relations which she sustained to its managers she was allowed to receive and control money received for the benefit of the Home; that on or about the 20th day of May, 1891, the plaintiff used the funds so received by her, which were known to her to be the funds of the defendant, amounting to the sum of $8,500, without the knowledge or consent of the defendant, and wrongfully invested such funds in the purchase of real property in the city of Brooklyn, the title to which was taken in her own name; that the plaintiff purchased the said real property with the funds so received by her for the benefit of the defendant, and that the loans mentioned in the complaint were made on the real property which she so purchased with the funds of the defendant. It is also alleged in the answer that the plaintiff never accounted to the defendant for the moneys which she so received, and that she has refused to convey to the defendant the property purchased by her, as she had agreed to do. That an action is now pending to compel the plaintiff to account for the funds received by her, and to compel her to convey to the defendant the real property purchased by her as aforesaid.

The order from which the appeal is taken required the defendant to furnish a bill of particulars specifying—First, each specific sum of its money which it claims the plaintiff received; second, the date when it claims each sum was so received; third, the person or persons from whom it claims each sum was so received. While it is true the plaintiff is charged with receiving money from the defendant, yet no claim is made against her by way of counterclaim, and the defendant makes no demand for judgment against her. The allegations in the answer are made to show that trust relations existed between the parties; that the plaintiff had used the money of the defendant to purchase real property, which she had mortgaged to raise the money she loaned to the defendant; that the money so loaned belonged in equity to the defendant, and therefore cannot be recovered from it. If this defense fails, the plaintiff will recover because there is no denial of the loans. Moreover, if the affidavit of the plaintiff that the charges made against her in the answer are each and all absolutely'and unqualifiedly false be true, then they cannot be proven. If they are true, the plaintiff knows the amounts of money she received, and the-time when the persons from whom they were received, as well as the defendant, and there is no reason why the defendant should be embarrassed upon the trial by confinement to minute specifications of its proofs. The accusation against the plaintiff is distinct, and the charge is plain. She knows perfectly well what claim the defendant makes against her, but what she really desires is_ to ascertain what proofs the defendant intends to introduce against her. That is not the office of the bill of particulars, and the defendant is under no obligation to furnish the evidence in defense of the-trial.

The order should be reversed, with $10 costs and disbursements, and the motion denied with $10 costs.

All concur.


author: Pratt. J.

text:
    In the Matter of the Petition of James M. Hanly, as Guardian, etc., of Joseph F. Hanly. Dennis Murphy, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    Former adjudication—Suit pending.
    An accounting by a guardian is not barred by a partition suit, in whitit the ward pleaded that the guardian collected rents belonging to him, where-it appears that no accounting as to such rents was had in such action.
    Appeal from an order, directing Dennis Murphy as administrator of Anna T. Murphy, deceased, to render an account of the proceedings to Anna T. Murphy as guardian of Joseph F. Hanly.

      Spellissy & Gray, for app’lt; Lamb, Osborne & Petty (Gilbert Zt Lamb, of counsel), for resp’t.
   Pratt. J.

The surrogate directs a judicial settlement of the account as Hanly. It is objected to oh the ground that in a pending partition suit Joseph F. Hanly has pleaded that Anna T. Murphy has collected rents belonging to Hanly, for which an account is asked. The pleadings before the surrogate show that the rents are not. matters for which an account is claimed. It follows that full relief cannot be given in the partition suit, and the accounting before the surrogate is necessary.

Order appealed from affirmed, with costs.

All concur.


text:
    Valentine Cornwell, App’lt, v. Charles H. Clements, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Appeals—Court op appeals.
    Leave to appeal to tlie court of appeals will be denied where no reason is stated in the affidavit, and none is discoverable for granting it.
    Application for leave to appeal to the court of appeals from a judgment of the general term, reversing a judgment of the special term sustaining a demurrer to the complaint.

      H. A. Monfort, for application; E. F. & E. 0. Bullard, opposed.
   Dykman, J.

This is an application on the part of the defendant permission to appeal to court appeals judgment of the general term of this court, reversing the judgment of tne special term, which sustained a demurrer to the complaint in this action. The motion is based upon an affidavit of the attorney for the defendant, which states that the defendant desires to appeal to the court of appeals from the judgment of the general term. The affidavit states no reason why such permission should be granted, and we have been unable to discover any. According to the complaint, the defendant has been guilty of a gross fraud, and he should not be permitted to delay the day of trial by technical objections to the complaint If he has any defense, he had better address himself to its production; and if he has none there should be no delay of the day of judgment.

The motion should be denied, with $10, costs and disbursements. All concur.


text:
    Andrew Cosgriff et al., Resp’ts, v. William Dewey, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Appeal—Interlocutory order.
    An order, denying a motion to dismiss the complaint and appointing a referee to take proof of the amount of rock removed by the defendant from premises described in the complaint, is interlocutory and, therefore, not appealable.
    Appeal from an interlocutory order.

      A. &. Tompkins, for app’lt; Irving Brown, for resp’ts.
   Dykman, J.

This is an appeal from an order denying the motion of the defendant to dismiss the complaint upon the trial, and appointing a referee to take proof of the amount and value of the rock quarried or removed by the defendant from the premises referred to in the complaint, and of such material sold by him subsequent to the 1st day of March, 1892; also of the expenses of quarrying, removing, and selling the same, and of the profits thereof, and report to this court with his opinion. The order so entered is an interlocutory order, under which testimony is to be taken for the information of the court. Upon the coming in of that testimony the court will enter a final judgment. No appeal can be taken from an order made upon a ruling of the trial judge during the trial All exceptions to such rulings are presented by the appeal from the final judgment.

This appeal from the interlocutory order is premature, and must be dismissed.


text:
    The People ex rel. Ernest Van Bergen, App’lt, v. Leonard R. Welles, as Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Municipal corporations—Police—Removal.
    The decision of the commissioner of police in removing the relator from the police force on the charge oi larceny cannot be sustained, where the article, alleged to have been stolen, was taken with the permission of the owner’s clerk, though the latter had no authority to give such permission.

      Certiorari to review the decision of the commissioner of police and excise of the city of Brooklyn, in dismissing relator from the police force.

      James C. Church, for relator; Jacob Brenner, for resp’t.
   Dykman, J.

This is a proceeding by certiorari to review the action of the defendant, as commissioner of police and excise of the city of Brooklyn, in removing the defendant from his position on the police force. The relator was a patrolman in the city of Brooklyn, and was dismissed from that position after a trial by the defendant upon the charge of larceny. The specification of the charge was that on the 17th day of June, 1894, the relator violated a rule of the police department by leaving bis post and entering a milk and butter store and stealing eggs from a box. "Upon the trial it appeared that the relator went to the store of S. Y. Coles and took some eggs. It appeared, further, upon the trial, without contradiction, that permission had been given to the relator to enter the store at any time and help himself to such articles as he wanted; and, when the witness was asked if he specified eggs as an article which he could take, he answered that he told the relator to take anything he wanted. The relator acted upon that permission, which seems to have been given to other policemen besides himself, and took the eggs in question for the purpose of having them boiled to eat himself. Under this state of facts, it is entirely plain that the criminal intent necessary to the conviction of the relator of the crime of larceny is entirely wanting. The clerk gave him permission to take the articles which he took, and it is immaterial whether the clerk had authority to do so or not. The relator took the eggs because he supposed he had the right to do so, and he had ample reason for such belief. The proceedings which resulted in his conviction should, therefore, be reversed, and he should be restored to his position as patrolman of the police.

All concur.


author: Freedman, J.

text:
    James H. Brady, App’lt. v. Nathan Hutkoff, Resp’t.

      (New York Superior Court, General Term,

      Filed July, 1895.)

    1. Evidence—Admissions in pleading.
    The rule that a party cannot contradict the admissions made in his pleading, does not apply where such a missions are ambiguous and are immediately preceded by an express denial of plaintiff’s claim.
    2. Pleading—General denial.
    Under a general denial, a defendant may controvert by evidence any-
    . thing which the plaintiff is bound in the first instance to prove, to make out his cause of action, or anything that he is permitted to prove for that purpose under the complaint.
    3. Same.
    Denials in an answer are not impaired by the allegations of new matter subsequently set forth.
    Appeal from a judgment dismissing the complaint on the merits.

      Arnoux, JRitch & Woodford, for app’lt; David Leavmtritt, for resp’t
   Freedman, J.

The principal question litigated upon the trial was whether the contract for the work upon which the plaintiff brought his action was made by the defendant with James H. Brady, the plaintiff, or with James Brady, the father of the plaintiff. The referee, upon conflicting testimony, fouud that the contract was not made with the plaintiff, and that the plaintiff neither performed work nor' furnished materials at defendant’s request This finding is sufficiently sustained by evidence, and should not be disturbed, if this defense is available to the defendant The plaintiff insists that under the amended answer in this case the defendant stands precluded from litigating the question, and that the referee erred in admitting evidence upon the point, and in ultimately determining it as he did. True, a defendant who formally and explicitly admits by his pleading that which establishes the plaintiff’s right, will not be suffered to deny its existence, or to prove any state of facts inconsistent with that admission. Paige, v. Willett, 38 N. Y. 28; Schreyer v. Mayor, etc., 39 Supr. Ct. Rep. 1; Donovan v. Board of Education, 44 id. 53; Quackenbos v. Edgar, 61 N. Y. 653; Dunham v. Cudlipp, 94 id. 134. But the rule applies only where the admission is clear. In every one of the cases referred to the admission was explicit, and the pleading contained no denial at variance with the admission. The difficulty with the case at bar is that the alleged admissions, of the amended answer to which the plaintiff has called attention are vague and ambiguous, and that they are preceded by an express denial that the contract was made with the plaintiff, and that the plaintiff did anything at defendant’s request. For this reason the authorities cited do not apply. Fiske v. Bailey, 51 N. Y. 150, does not help the plaintiff, because in that case the denial was so insufficient as not to raise an issue. Nor can the plaintiff derive any benefit from Dale v. Gilbert, 128 N. Y. 628; 40 St. Rep. 353, in which case it was held that an admission in an undertaking may be withdrawn,, and that the court has power to grant leave to substitute a new undertaking without the admission. Taking the amended answer as a whole, and considering the circumstances under which it was. amended, as shown by the case, I think that under it the defendant was entitled to prove that the contract sued upon was not made with the plaintiff, but was in fact made with James Brady, and that all the dealings of the defendant in relation to the work were with James Brady. Under a general denial a defendant may controvert by evidenceanything which theplaintiff is bound to prove in the first instance to make out his cause of action, or anything that he is permitted to prove for that purpose under his complaint. Field v. Knapp, 108 N. Y. 87; 12 St. Rep. 790; Milbank v. Jones, 141 N. Y. 340; 57 St. Rep. 429; Roemer v. Striker, 142 N. Y. 134; 58 St. Rep. 615. I am further of the opinion that the denials of the amended answer in this case were not impaired by the allegations of new matter subsequently set forth, because a defendant may put his defense upon distinct, and even inconsistent, grounds. Bruce v. Burr, 67 N. Y. 237; Goodwin v. Wertheimer, 99 id. 149; Societa Italiana Di Beneficenza v. Sulzer, 138 id. 468; 52 St. Rep. 904. The record discloses no error which calls for reversal and a new trial.

The judgment should be affirmed, with costs,

All concur.